Lawsuit blames coal company for flooding death in Knox County

Lax reclamation efforts alleged

bestep@herald-leader.comOctober 11, 2011 

Early morning flooding in Kayjay in Knox County washed the home of Joe and Shirley Senters off its foundation and carried across a road several hundred feet from its original foundation. The Senters were rescued by neighbors from the house after it was carried away. They were in the house when it was washed off the foundation.

BILL ESTEP | STAFF

Improper surface-mining practices caused or worsened flooding that killed a man and destroyed or damaged numerous homes in Knox County in June, more than 70 people affected by the disaster have claimed in a lawsuit.

Jack Spadaro, a former federal mining official who is a consultant on the lawsuit, said it was the first claim in Kentucky he is aware of that alleges flooding caused by surface mining directly caused a death.

The coal company involved, Nally & Hamilton Enterprises, did not properly reclaim its mine and failed to keep drainage ponds cleaned out, which reduced the ponds' holding capacity and allowed excess water to rush off the site during heavy rainfall June 20, the lawsuit claims.

Water and debris swamped a small creek below the company's mine in a mountainous part of southern Knox County, washing some homes off their foundations and leaving a thick coat of mud in others. Damage stretched for miles along the creek.

Donnie Joe Pate, 55, died after the swift water swept him from a mobile home where he lived with his mother. The water picked up the trailer and smashed it against a bridge, injuring Pate's mother, Wilma Ruth Pate Hamilton, 79.

Nally & Hamilton's negligence and reckless conduct caused Pate's death, the lawsuit claims.

Martin Cunningham, an attorney for Nally & Hamilton, said the company denies it caused or worsened the flooding. He said he could not comment further on the pending suit.

The complaint is the latest of several large lawsuits in recent years claiming surface-mining practices have caused or contributed to flooding and resulting damage in Eastern Kentucky.

More than 80 Breathitt County residents sued coal companies after a 2009 flood, for instance, and there is a suit pending in Pike County involving more than 150 people who claim mining played a role in flooding that damaged their property.

One reason for the increase in such suits is that the expansion of surface mining has increased the potential for flash flooding, Spadaro said.

There also have been good recent studies to underpin such suits, said Prestonsburg attorney Ned Pillersdorf, who has handled several of the complaints for people whose property was damaged.

Pillersdorf is the attorney for more than 25 Perry County residents in a lawsuit claiming improper surface-mining practices caused or worsened flooding and landslides that damaged numerous homes on the same day as the Knox County flood.

Hundreds of homes also were flooded in Bell County that day. Attorneys are researching a potential lawsuit there.

Torrential rainfall — reportedly six inches or more within a few hours in some places — caused flooding in several counties June 20.

A preliminary assessment found that more than 360 homes were destroyed, damaged or affected, according to the Federal Emergency Management Agency. President Barack Obama issued a disaster declaration covering Bell, Knox, Perry, Breathitt, Knott, Lee and Magoffin counties.

As of last week, FEMA had approved nearly $2.3 million in assistance to people in Knox, Bell and Perry counties, according to a news release.

The lawsuit in Knox County said Nally & Hamilton had been cited seven times in the two years before the flood for permit violations such as failing to properly maintain drainage-control systems, showing a pattern of non-compliance.

Rather than quickly fix the alleged problems, Nally & Hamilton dragged its feet, seeking numerous extensions to comply, the lawsuit said.

The company also concealed violations and gave regulators false information, the lawsuit alleged.

The month after the flood, state and federal regulators cited Nally & Hamilton for allegedly failing to properly control runoff from the mine into Wolf Pen Creek.

The company's poor mining practices "created, caused or played a substantial role" in massive amounts of water, rocks, mud and trees rushing off the mine site during the storm June 20, the lawsuit said.

"During the tidal wave of debris unleashed by the defendant, many of the plaintiffs were left stranded in their homes and helplessly watched as their homes and personal possessions were destroyed and swept off and away," the lawsuit said.

Attorneys Bruce W. MacDonald and Paul E. Craft filed the lawsuit in Knox County for more than 70 people whose homes, cars and other property were damaged in the flood, and for Pate's estate.

The suit seeks an unspecified amount of money to compensate people and punish the coal company.

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