Published: March 30, 2006 11:26 pm      

Ex-mine inspector defends his objectivity in flood trial

Is former mine inspector and industry whistleblower Jack Spadaro an objective witness or an anti-mountaintop removal advocate so influenced by his personal beliefs that he would mislead a Raleigh County jury?

Defense attorneys called the objectivity of this expert witness into question Thursday, the 10th day of this mass litigation case concerning the floods of July 8, 2001, specifically in the Mullens and Oceana areas.

Spadaro — a former head of the National Mine Health and Safety Academy in Beaver who lost his job when he criticized weak enforcement action against Massey Energy after 300 million gallons of liquefied coal waste spilled in Kentucky streams in 2000 — wrapped up his testimony by stating he is not completely against mountaintop removal mining but he is against those operations that violate the law.

“All I’ve ever advocated is better control and further enforcement of existing laws regarding mountaintop removal,” he said, faced with a recent magazine article that featured a picture of him wearing a “Stop Mountaintop Removal” button.

Plaintiffs in the case are hundreds of residents in Mullens and Oceana who have sued timber and coal companies they say contributed to severe flood damage they suffered nearly five years ago. What began with 31 defendants is now down to five, including Pioneer Fuel Co., the only coal business remaining in this portion of the fight.

The overall litigation involves six watersheds and their sub-watersheds. The current trial involves only the Mullens and Oceana sub-watersheds of the Upper Guyandotte watershed, where most plaintiffs reside.

Spadaro’s testimony focused on Pioneer’s two surface mine operations he says directly affect residents within the Ocean sub-watershed. Earlier this week he testified about two violations in effect at the Winifrede and Simmons Fork mines when the storm happened. Those violations, he said, were such that would have contributed to increased waterflow from the mine sites.

Thursday, he interpreted aerial photographs taken just after the flood that reveal violations at valley fills and ponds on the two sites he said would have sent debris offsite during heavy rain. Yet, defense attorney Henry Jernigan pointed out through questioning, the DEP issued no additional violations to the sites for what Spadaro concluded happened there July 8, 2001.

Jernigan asked Spadaro if his personal beliefs influenced the way he interpreted the photographs. Spadaro told him they did not.

Instead, Spadaro explained his views as a former mine inspector on the condition of Pioneers’ mine sites.

“There is surface disturbance in the watershed,” he said in reference to pictures. “On massive areas of the valley fill faces, the slopes that had been disturbed by the placement of spoil on the downslope. The lack of diversion channels. The lack of vegetation on the slopes. ... Everything on that Pioneer Fuel site. ... The condition of the operation contributed significantly to the flooding on July 8, 2001,” Spadaro said. Later he added that he did not believe Pioneer’s operations were “reasonable.”

But why should jurors believe a man who has spoken out against mountaintop removal practices and the agencies charged with enforcing regulations there, the defense implied.

“You were in no way influenced by your views on mountaintop removal mining? ... You were able to set those aside entirely?” Jernigan asked.

“Yes,” Spadaro said.

Jernigan pointed out another magazine article in which Spadaro criticizes state and federal administrations for not enforcing mining industry regulations because they have been influenced by coal money.

“Your opinions about the corruption of the agencies involved played no part even a little bit in your opinions?” Jernigan asked.

Spadaro said they did not, and he emphasized his belief that his experience as a mine inspector and his analysis of the situation in question lead him to believe that if the sites had been maintained properly, they should have withstood the July 8, 2001, rain event.

Under re-direct questioning by plaintiffs’ attorney Randolph McGraw, Spadaro said he advocated a more reasonable type of mountaintop removal. Why?

“Well, because as I’ve seen over the past five years, there have been at least seven periods of flash flooding in southern West Virginia that could be attributed to rapid runoff and substantial increases in runoff from mountaintop removal operations, and people actually have had their lives threatened by these kinds of floods,” Spadaro said, “and it concerns me greatly. I’ve worked all my career as a specialist in this area, trying to protect the public, particularly since the Buffalo Creek disaster when 125 people died, and that is the reason for my concern.”

Judge John A. Hutchison sustained an objection to Spadaro’s reference to Buffalo Creek.

Plaintiffs are anticipated to rest their case Monday morning. The defense said its first witness will be meteorologist Dr. Joe Sobel, head of the forensic department at AccuWeather.

— E-mail: bnaudrey@register-herald.com