The Buffalo Creek Flood and Disaster:
Official Report from the
Governor's Ad Hoc Commission of Inquiry
1973

PREFACE

A bridge collapses. An airplane crashes. A coal mine explodes -- and a dam fails.

And people die.

Such are the methods by which tragedy has, in recent years, traced a pattern of human misery and suffering in West Virginia's history.

The initial public reaction in each instance has been shock and sympathy. Then comes the questioning. Did it have to happen? What caused it? Who is responsible? Soon after, there is an outcry for an investigation to determine the facts, to separate rumor from truth.

On February 26, 1972, a sludge dam on the Middle Fork of Buffalo Creek in Logan County gave way, unloosening a torrent of thick, murky water that claimed at least 118 lives, left seven persons missing, destroyed hundreds of homes, and left thousands homeless.

Public reaction followed the customary pattern--first shock, then sorrow, then the questions, and finally an angry clamor for the causes, reasons, and responsibility.

In this instance, the accusing fingers were pointed, as might be expected--and rightfully so--to Buffalo Mining Company, owner of the dam, and its parent company, the Pittston Company.

After all, it was their dam, and the president of Pittston later testified that his company was responsible for the water being impounded behind it. He denied, however, that his company was guilty of criminal negligence.

In response to public demands for the facts. Governor Arch A. Moore, Jr., on March 1, 1972, appointed an ad hoc commission to investigate the Buffalo Creek disaster, to try to find the causes and origins, to determine if conditions existed elsewhere in the state for a similar disaster, and to recommend legislative actions to prevent such disasters in the future.

The Commission, in its diligent search for the facts, held 8 public hearings, interrogated 91 witnesses and compiled 9 volumes of testimony.

From the outset, the Commission was faced with the task of sifting through unofficial reports and rumors, some of which were proven by the resulting investigation to be factual, while others were found to be groundless. After weaving its way through this maze of information and misinformation, the Commission has compiled this report which it feels provides most - but not all - of the answers to the disaster.

Public opinion already has placed the basic responsibility for the tragedy at the doorstep of Pittston and Buffalo Mining. The Commission certainly does not dispute the people's right to voice their opinion and, in fact, does not mean to imply that the people are wrong.

But the investigation indicated that responsibility also must be shared by others, and sections of this report deal, with these other areas of responsibility.

For example, it points out that the dam on Middle Fork was born out of a practice as old as the coal industry itself - disposing of solid-waste material by the most convenient and cheapest method possible. This has been done by dumping refuse on hillsides and in hollows in close proximity to cleaning plants in order to cut down on haulage costs.

Had the coal industry and the government given serious thought to improving means of waste disposal, and promoted research into practical uses of these waste materials, the refuse dump in Middle Fork might never have been built.

It was cheaper for Buffalo Mining Company and its predecessors to put the company's refuse in Middle Fork than in any other location in the valley. And when the time came that the company had to stop polluting the stream with effluent from its preparation plant further up Buffalo Creek, the refuse - or gob - pile happened to be convenient for the construction of an impoundment that was to be used as a settling basin.

Federal and State agencies did not escape the scrutiny of the Commission in regard to their authority over the impoundment and their duties as to inspections and enforcement of statutes relating to earthen dams.

These inquiries took the Commission on a search of Federal and State laws which might be applicable to such structures, and it was found that these laws are so loosely written they can be interpreted in many ways, making it almost impossible in most instances for the courts to rule which agency has what authority over water impoundments constructed by coal companies.

Some opinions hold that the people themselves should assume at least part of the responsibility for the disaster which struck them, since they had legal avenues available to them to correct the conditions which existed on Middle Fork. However, the Commission feels that these recourses were so deeply buried in statutory language that the people were not aware that they even existed. Therefore, the Commission has proposed legislative recommendations which will make the rights of the people more visible and explain in simple language the action that can be taken should similar conditions arise for another potential disaster.

Many employees of Buffalo Mining Company went by the impoundment daily on their way to and from work, yet they raised little alarm and made few complaints about its potential danger.

Witnesses testified before the Commission that they warned people up and down Buffalo Creek just hours before the dam broke that it was going to fail. Yet there were those who ignored the warnings, and some of them died.

It is doubtful that any investigatory body ever went about its prescribed duties with more diligence than the Governor's Ad Hoc Commission of Inquiry into the Buffalo Creek Flood. The nine members gave unselfishly of their time and energy to complete their assignment.

The Commissioners realized that nothing they could do would restore to life those men, women and children who died in the flood, or ever make the Buffalo Creek valley the same place it was before February 26. But they harbor the prayerful hope that the work they have done over the past six months will not have been done in vain; that through their efforts, similar disasters may be prevented in the future, and that people will not die because of conditions which they had no part in creating.

1.0 INTRODUCTION

1.1 SUMMARY OF THE DISASTER

A mine-waste impoundment located on the Middle Fork of the Buffalo Creek watershed in Logan County (see Figure 1-1) failed a minute or so before 8 a.m. February 26, 1972, causing the sudden release of 17.6 million cubic feet of water (132 million gallons) onto the Buffalo Creek Valley floor.

The instantaneous release of the water behind this impoundment immediately began a fall of 253 feet to Buffalo Creek, washing out two additional combination waste banks and impoundments in its path, and tore off the corner of a burning mine-refuse bank before cascading directly into the western slope of Buffalo Creek Valley, one-half mile away.

As the blackened water, filled with sludge and refuse from mining operations, turned southwesterly on its subsequent path of death, destruction and devastation, it promptly wiped out the small community of Saunders, located within several hundred yards of the burning bank.

Sixteen more Buffalo Creek Valley communities--Pardee, Lorado, Craneco, Lundale, Stowe, Crites, Latrobe, Robinette, Amherstdale, Becco, Fanco, Riley, Braeholm, Accoville, Crown, and Kistler--were either partially or totally destroyed before the flood wave finally traversed the winding, 17-mile course from the site of the impoundment and the confluence of Buffalo Creek with the Guyandotte River at Man (see Figure 1-2).

The 10-foot to 20-foot high flood wave traveled the valley at an average speed of better than 7 feet per second (5 miles per hour), reaching Man at 11 a.m. During those three hours at least 118 lives were lost with an additional seven persons still listed as missing by the West Virginia State Police. Besides the tragic loss of so many lives, an additional 1000 persons suffered injury.

Five hundred and seven houses were lost or demolished; 44 mobile homes were destroyed; another 273 houses were severely damaged; while nearly 663 more houses suffered damage to varying degrees. A total of 4000 people were thus left homeless by this flood.

In addition, 30 business establishments, 1000 automobiles and trucks, 10 bridges, and power, water and telephone lines were all destroyed, and the county road and the rail lines servicing the valley's coal mines were severely damaged. The photographs in Figure 1-3 are typical of the tremendous damage done by the flood.

Property damage was estimated in excess of $50,000,000, while highway damage exceeded $15,000,000.

It was, in the truest sense, the most destructive flood in West Virginia history.

1.2 LIST OF DECEASED

The Commission respectfully incorporates into this report the names of those men, women and children who lost their lives in the floo

Adkins, Brookie Mae, Female, 31 - Mother
Adkins, Lonnie Lee, Female, 7 months - Daughter
Adkins, Mary Jane, Female, 5 years - Daughter (all of Lundale, W.Va.)
Adkins, David Brooks, Male, 27 - Father - electrician Buffalo Mining Company
Adkins, David, Jr., Male, 4 years - Son
Adkins, Dorinda Lynn, Female, 3 months - Daughter - listed as missing
(all of Lorado, W. Va.)
Albright, Sylvia, Female, 39 - Mother
Albright, Steven, Male, 17 - Son (both of Lorado, W. Va.)
Bailey, Janice Juanita Osborne, Female, 32 - Mother
Bailey, Kimberly Kay, Female, 6 years - Daughter
Bailey, Jason, Jr., Male, 11 years - Son
Bailey, Rhoda Rene, Female, 8 years - Daughter
Bailey, Carla Jeannene, Female, 1-1/2 years - Daughter (all of Saunders, W. Va.)
Bailey, James, Jr., Male, 16 - Brother of Mrs. Diana McCoy, 18, whose daughter Kimberly, 3 years, perished. Son, Donald McCoy, 1-1/2 years, is listed as missing (all of Amherstdale, W. Va.)
Bailey, John H., Male, 58 - Husband - disabled miner
Bailey, Eleanor, Female, 44 - Wife
White, April Ellen, Female, 11 - Daughter of Eleanor by previous marriage (all of Lundale, W. Va.)
Baker, Milton, Male, 71 - Husband
Baker, Effie, Female, 68 - Wife
Bartram, Mrs. Joyce, 40 - Daughter - Payroll Office of Amherst Coal Company (all of Lundale, W. Va.)
Black, Betty Lee, Female, 51 - Lundale, W. Va.
Blankenship, Edith, Female, 61 - Lorado, W. Va.
Broady, Rebecca, Female, 15 - Daughter of Ruth Broady Hatfield by a previous marriage - Lundale, W. Va.
Browning, Donna Sue Lauderback, Female, 21 - Mother
Browning, Norman Bruce, Male, 3 years - Lundale, W. Va.
Brunty, James, Male, 82 - Kistler, W. Va.
Butcher, Leonard, Male, 66 - Husband
Butcher, Dessie, Female, 57 - Wife - Lundale, W. Va.
Carter, Ballard, Male, 36 - Husband - coal miner, Buffalo Mining Company, 8-C mine
Carter, Janice Hatfield, Female, 29 - Wife
Carter, Matthew, Male, 6 years - Son
Carter, Lillian Sara, Female, 3 years - Daughter
Carter, Samuel, Male, 20 months - Son - listed as missing (all of Lundale, W. Va.)
Davis, Margaret Levanna, Female, 35 - Mother
Davis, Mary Jane, Female, 8 years - Daughter
Davis, James Nevada, Male, 2 years - Son - listed as missing (all of Stowe, W. Va.)
Dempsey, Willie, Male, 42 - Husband - Motorman, No. 5 mine, Buffalo Mining Company
Dempsey, Aletha V., Female, 38 - Wife (adopted daughter Betty Frances Vernatter, Female, 4 years. Willie Dempsey was a brother of Mrs. Thelma Dillon) - all of Lorado, W. Va.
Dickerson, Berma Jo, Female, 20 - Mother
Dickerson, Steven Todd, Male, 18 months - Son
Smith, Anita, Female, 17 - Sister (all of Lundale, W. Va.)
Dillon, James, Male, 32 - Husband - Shuttle car operator. No. 5 mine, Buffalo Mining Company
Dillon, Thelma, Female, 36 - Wife (sister of Willie Dempsey)
Dillon, Curtis, Male, 10 - Son
Dillon, Sharon, Female, 13 - Daughter
Dillon, Daria, Female, 5 - Daughter
Dillon, Howard, Male, 8 - Son (all of Lorado, W. Va.)
Elkins, Ruth Ann, Female, 29 - Lundale, W. Va.
Ferguson, Judy, Female, 27 - Mother
Ferguson, Connie Sue, Female, 18 months - Daughter
(daughter and granddaughter of Etta Pearl Hatfield) - all of Lundale, W. Va.
Gunnells, Martha Elkins, Female, 21 - Mother
Gunnells, David, Male, 3 - Son
Gunnells, Jessie, Female, l - Daughter (all of Robinette, W. Va.)
Hatfield, Etta Pearl, Female, 60 (daughter is Judy Ferguson and granddaughter is Connie Sue Ferguson) - Lundale, W. Va.
Hatfield, Layton Oscar, Male, 50 - Husband - miner, Amherst Coal Company
Hatfield, Ruth Broady, Female, 53 - Wife
Hatfield, Steven, Male, 16 - Son
Broady, Rebecca, Female, 15 - Daughter of Ruth by previous marriage (all of Lundale, W. Va.)
Hedinger, Albert O., Male, 34 - Preparation Engineer on tipple at Buffalo Mining Company, Godby, W. Va. - killed at Saunders
Hopson, Angela Jean, Female, 2 years
Hopson, Nancy, Female, 1 year - listed as missing (both of Crites, W. Va.)
Jarrell, Margaret Yanco, Female, 42 - Mother
Jarrell, Karen, Female, 16 - Daughter
Jarrell, Patrick, Male, 24 - Son - miner, Amherst Coal Company
(all of Lundale, W. Va.)
Jarrell, William Lee, Male, 50 - Husband - miner, Amherst Coal Company
Jarrell, Lottie May, Female, 45 - Wife (both of Lundale, W. Va.)
Johnston, Andrew, Male, 73 - Crites, W. Va.
Kennedy, Mrs. Grace, Female, 71 - Easley, South Carolina (visiting sister-in-law, Macie Queen)
King, Gary Mike, Male, 24 - miner, Amherst Coal Company - Lundale, W. Va.
Lester, Norman, Male, 24 - Husband - miner
Lester, Sharon Ann, Female, 25 - wife
Lester, Denise, Female, 3 years - Daughter
Lester, Dennatta, Female, 5 to 7 years - Daughter
Lester, Opal, Female, 45 - Mother of Sharon Ann Lester
Lester, Barry Keith, Male, 15 - Son of Opal Lester
Lester, Rita Joann, Female, 16 - Daughter of Opal Lester (all of Saunders, W. Va.)
Marcum, Mary Bowman, Female, 44 - Latrobe, W. Va.
McCoy, Diana Lynn, Female, 18 - Mother
McCoy, Kimberly, Female, 3 years - Daughter
McCoy, Donald, Jr., Male, 1-1/2 years - listed as missing (all of Amherstdale, W. Va.)
Messer, Jesse, Male, 35 - Lorado, W. Va.
Miller, Augusta, Female, 69 - Pardee, W. Va.
Murray, Robert, Male, 71 - retired miner - Lundale, W. Va.
Osborne, Wandell, Male, 37 - Husband - disabled miner
Osborne, Jeannette, Female, 35 - Wife
Osborne, Regina, Female, 12 - Daughter
Osborne, Carolyn, Female, 20 months - Daughter
Osborne, Geneva, Female, ll - Daughter
Osborne, Wandell, Jr., Male, 15 - Son (all of Lundale, W. Va.)
Owens, Henrietta, Female, 22 - Mother
Owens, Thomas, Male, 3 years - Son (both of Lundale, W. Va.)
Peters, Herbert, Male, 71 - Husband
Peters, Martha, Female, 71 - Wife (both of Pardee, W. Va.)
Perry, Callis, Female, 81 - Pardee, W. Va.
Prince, Margie Marie, Female, 42 - Amherstdale, W. Va.
Queen, Macie, Female, 54 - Lorado, W. Va.
Ramey, Otis, Male, 49 - Husband
Ramey, Mattie, Female, 45 - Wife
Ramey, Virgie Albright, Female - Mother of Otis (all of Latrobe, W. Va.)
Scarberry, Mrs. Marvel Rosie, Female, 73 - Lundale, W. Va.
Sipple, Goldie, Female, about 38 - Lorado, W. Va.
Smith, Anita, Female, about 17 - sister of Berma Jo Dickerson - Lundale, W. Va.
Sosa, Florencio, Male, 65 - Husband
Sosa, Magdalene, Female, 46 - Wife - Lorado, W. Va.
Staton, Gladys, Female, 25 - Mother
Staton, Kevin, Male, 1, year - Son - Lundale, W. Va.
Trent, Delia, Female, 69 - Mother
Trent, Johnny, Male, 32 - Son - miner Guyan Mine No. 1, Island Creek Coal Company
Trent, Gene, Male, 26 - Son - truck driver for Buffalo Mining Company
Trent, Henry, Male, 49 - Son - shuttle car operator for Buffalo Mining Company
Trent, Wanda, Female, 39 - Daughter (all of Saunders, W. Va.)
Vernatter, Betty Frances, Female, 4 years (adopted daughter of Aletha V. Dempsey) - Lorado, W. Va.
Vernatter, Thomas, Male, 65 - Husband
Vernatter, Ethel Black, Female, 65 - Wife (both of Latrobe, W. Va.)
Waugh, Roby Leslie, Male, 45 - Father - miner, Powellton
Waugh, James Lewis, Male, 11 - Son
Waugh, Grady Michael, Male, 18 - Son
Waugh, Donald, Male, 20 - Son
Waugh, Larry Keith, Male, 5 years - Son (all of Lundale, W. Va.)
White, April Ellen, Female, ll - daughter of Eleanor Bailey by previous marriage - Lundale, W. Va.
Wiley, Mrs. Dora, Female, 60 - Latrobe, W. Va.
Wiley, Richard Dick, Male, 78 - Crites, W. Va.
Workman, Frank Lee, Male, 69 - Lorado, W. Va.

Missing
Adkins, Dorinda, Female, 3 months - Lorado, W. Va.
Carter, Samuel, Male, 20 months - Lundale, W. Va.
Clay, Roscoe, Male, 74 - Lorado, W. Va.
Davis, James, Male, 2 years - Stowe, W. Va.
Hopson, Nancy, Female, 1 year - Crites, W. Va.
McCoy, Donald, Jr., Male, 1-1/2 years - Amherstdale, W. Va.
Waugh, Kathy, Female, 8 months - Lundale, W. Va.

Unidentified
Two white males, ages 18 months to three years
One white female, age approximately three years

The Buffalo Creek Valley communities and the number of persons who lost their lives in those communities are listed below in order of their location downstream from Middle Fork:

Saunders, 18; Pardee, 4; Lorado, 21; Lundale, 52; Stowe, 2; Crites, 3; Latrobe, 7; Robinette, 3; Amherstdale, 4; Kistler, 1.

1.3 CHARGE TO THE COMMISSION

in the aftermath of the Buffalo Creek disaster. Governor Arch A. Moore, Jr. (Figure 1-4), by virtue of Executive Order No. 4-72, created an investigatory body known as The West Virginia Ad Hoc Commission of Inquiry into the Buffalo Creek Flood (hereinafter referred to as Commission). Pursuant to said Order, the following members were appointed to the Commission: Jay Hilary Kelley, Dean, School of Mines, West Virginia University; John Ashcraft, Director, Department of Mines; Dr. Robert B. Erwin, West Virginia State Geologist; Ira S. Latimer, Jr., Director, Department of Natural Resources; Elizabeth V. Hallanan, Chairman, Public Service Commission; Dr. Dan Kealy, representative of the U. S. Bureau of Mines; William E. Davies, representative of the U. S. Geo- logical Survey; Charles D. Hylton, Jr., Editor, Logan Banner, citizens' representative; Julian Murrin, citizens' representative. By subsequent letter, Governor Moore appointed Dean Jay Hilary Kelley Chairman of the Commission.

Governor Moore, through the Executive Order, delegated to the Commission the following duties: (a) To investigate the causes, origins, conditions and reasons which led to the disaster which occurred on February 26, 1972, in the area of Buffalo Creek, Logan County, West Virginia; (b) To assess, locate and identify other areas of the state where similar conditions and potentials for disaster may exist; (c) To make proper evaluation and legislative recommendations to provide authority to supervise and control such impoundments to prevent such a disaster from recurring; and (d) To submit a report of its findings, conclusions and recommendations for immediate as well as long-term action. The Commission was granted a six-month period (ending September 1, 1972) to complete the aforementioned duties. (The Order appears in Addendum A.)

During organizational meetings, the Commission decided to conduct extensive and exhaustive fact-finding hearings in order to comply with the mandates set forth in the Executive Order. Accordingly, eight formal public hearings (Figure 1-5) were held at which time the testimony of 91 witnesses was heard and recorded in 9 volumes and 2019 pages. The Commission's policy was to entertain testimony of the following: Any party requesting to be heard; all persons directly or indirectly involved; any person deemed to have information or opinions that might assist the Commission in drawing valid conclusions and appropriate recommendations; and persons providing professional assistance in the interpretation of technical information. To this end, two hearings were held at Man High School to facilitate the testimony of local witnesses directly involved in the disaster. Additionally, six other public hearings were held in Charleston, at which time testimony was heard from many representatives including, but not limited to, the following; the Pittston Company, U. S. Department of Interior, U. S. Weather Service, various other U. S. Government agencies. West Virginia State agencies, and expert witnesses in the field of civil and mining engineering with particular expertise in dam construction and design, coal-refuse disposal and processing, water clarification, and professional registration of engineers. A detailed list of witnesses and a summary of testimony are given in Addenda B and C, respectively. It is important to note that, although the Commission did not have subpoena power, governmental agencies at both the State and Federal level, Pittston officials and the citizens of Buffalo Creek, were cooperative with the Commission in voluntarily testifying before the Commission at its request.

The Commission, in its official capacity, met 26 times to deliberate and evaluate the testimony and other facts submitted. Prior to the hearings, the Commission made at least two visits to the site of the former impoundment and to the communities affected by the disaster.

In an effort to avoid expensive duplication in the identification and assessment of the same or similar conditions existing in the State, the Commission initially decided to await the pending pertinent reports by the Department of Natural Resources before instituting an independent survey. This position was further buttressed by cooperation and coordination with the Department of Natural Resources in compliance with the specific directive of the Executive Order. Subsequently, the Commission determined that said reports would constitute the base data upon which the Commission would, by an independently conducted, random spot check of the refuse banks, set forth qualifying parameters and conclusions.

The full conclusions and recommendations of the Commission are provided in Sections 6.0 and 7.0 of this report and are a result of months of exhaustive investigation and considerable deliberation of various related ancillary materials submitted to the Commission.

[Note: In this report, standard dam construction terminology is used when referring to right or left abutments. That is, when directions are used, unless otherwise specified, they are used "work wise" or facing downstream.]

2.0 INVESTIGATION

2.1 GENERAL

Logan County, West Virginia, is situated virtually in the heart of the southern West Virginia bituminous coal field. Like almost every county in the southern half of the state, Logan County is - as it has been for three-quarters of a century - closely aligned with the economy of the bituminous coal-mining industry.

According to the Department of Mines, 24 different deep-mine companies operate 45 mines in Logan County, while 14 auger-mine companies have 18 different operations, and five strip-mining (surface- mining) companies have 17 different strip-mine operations. Combined, these companies and their 80 different mines - deep, auger, and strip - produced 10,182,958 tons of coal in 1971, directly employing 4135 people to do so. Logan County's overall population, according to the 1970 census, is 46,269 people.

At the same time, according to the Department of Commerce only 21 different manufacturing firms are in the county, of which 12 are directly related or associated with the coal-mining industry, such as machine shops to repair or rebuild mining equipment.

Coal mining is by far the principal industry for the county and its people, and untouched but mineable coal reserves in this county lead to the prediction that coal mining will remain the chief industry in years ahead.

Buffalo Creek Valley itself is situated at the easternmost end of the county, with headwaters near the junction of Boone, Logan, and Wyoming County lines and roughly 75 miles southwest of Charleston. The stream flows in a west by southwesterly direction for 17 miles before reaching its confluence with the Guyandotte River at Man.

Development of the coal-mining industry in the region after 1900 was closely followed by construction of the spur line up Buffalo Creek by the Chesapeake s Ohio Railroad in 1914. Subsequently, by 1920, the valley was like a checkerboard of small but closely spaced mine camps, situated where the flood plain was widest. Towns such as Saunders, Lorado, Craneco, Crites, Amherstdale, Becco, Accoville, and Crown were built where the small flood plains of tributary streams joined the flood plain of Buffalo Creek. Towns such as Pardee, Stowe, and Robinette were built on the wider flatland around some of the loops in Buffalo Creek.

Wedged between steeply rising valley walls, the narrow flood plain of Buffalo Creek offers little opportunity to build above the level of the 50-year flood. Maximum width of the valley or its flood plain is 600 feet, while average width is but 400 feet. The tortuous course of this creek (i.e., its tendency to twist and turn around ridges instead of flowing in a straight line) forced the stream to flow for some 17 miles from Saunders to Man - a straight-line distance of less than 12 miles.

The steepness of the valley walls and the thinness of the soil cover contribute to the flood flows, in Buffalo Creek Valley, and these same conditions persist in virtually all other hollows or valleys south of the Kanawha River. Instead of thick soils that could absorb some of the precipitation runoff, soils on the uplands and valley walls in this entire region are thin, generally less than 3 feet thick and seldom as much as 5 feet thick.(1*) Additionally, soils in the region tend to a composition of low permeability and are dominantly a clay-like, silty sand with large quantities of stone varying from small chips to boulders a foot or so long. They are commonly underlain by clay layers up to an inch thick between the base of the soil zone and the underlying bedrock.

Thus, all of these factors - the tortuosity of the channel, the narrowness of the flood plain, the steepness and height of the valley's walls, and the thinness and relative impermeability of the soil - combine to make Buffalo Creek a hollow susceptible to damage from flooding and a valley without a chance when a torrent of water such as that unleashed by the failure of the dam descended upon it.

* A LIST OF REFERENCES appears in Section 10.0 of this report.

2.2 HISTORY OF THE DAMS ON MIDDLE FORK

Mining activities began in Middle Fork in 1945 when the Lorado Coal Mining Company opened Mine No. 5 and accelerated when the No. 5 preparation plant was completed in 1947. At that time, the Lorado Coal Mining Company began dumping mine refuse from the No. 5 preparation plant in the mouth of Middle Fork Valley. The initial refuse, amounting to about 1000 tons a day, was dumped near the intersection of Middle Fork and Buffalo Creek. In the process, a large waste bank was constructed across the hollow. By February, 1972, the waste bank extended 1500 ft upstream, averaged 600 ft in width, and was 250 ft high.

2.2.1 Proposed Water Clarification System (1954-1959) In the latter part of 1954, at the request of the W. Va. Water Resources Commission, Lorado Coal Mining Company began a study of its water-pollution problems and ways and means of "closing" the waste circuit at the No. 5 preparation plant.

West Virginia Water Resources Commission personnel met with the Lorado Coal Mining Company in January, 1955, to discuss tentative plans for waste control. In July of that year, the company reported it was going ahead with the installation of disposal facilities, and drawings of the system were submitted with a request for a temporary permit. This permit was granted on August 19, 1955, for a six-month period; a permanent permit was issued on June 28, 1956.

In January, 1958, the General Manager of Mines stated, in a letter to the Water Resources Commission, that during the past summer (1957) bids were received to close the water circuit, but before one was accepted a delay was encountered. The thought at this time was to use froth flotation cells as a fine-coal recovery medium and the company would proceed along those lines.

Inspections made by the Water Resources Commission during August, October, and December, 1958, indicated washery waste was still being discharged into the stream and the General Manager was asked by letter on December 16 to submit a report on the company's plans and specifications to enable the company to comply with Permit No. 65 issued June 28, 1956, regulating such pollution. A report in March, 1959, stated that the company had been working with several manufacturing firms concerning waste-disposal facilities.

On August 27, 1959, a letter from the company stated that the company was working with a consulting firm to establish the size of filter needed and upon receipt of this information it would be able to proceed with construction plans. Then, on October 6, a letter from the President of Lorado Coal Mining Company discussed the various methods studied and stated that cost was an important factor in the installation of a filter at that time due to depressed market conditions and the then-current steel strike and that there were problems of a technical nature that should be considered. He further stated that later the present coal seam would be replaced by a different seam with different characteristics and that this change might alter the solution to the problem.

The Lorado Coal Company President asked that the company be granted a delay in installing the filter. This was a significant decision. Had such a filtration system been installed in the No. 5 preparation facilities, it would probably not have been necessary to construct the series of dams on Middle Fork for filtration of the preparation-plant effluent.

2.2.2 Dam No. 1

In April, 1960, the Lorado Coal Mining Company proposed, as an alternative to the closed-circuit coal-preparation plant system, the construction of a series of dams for containing the No. 5 preparation- plant effluent. The original proposal was to contain water behind the then-existing refuse pile at the mouth of Middle Fork and to construct one (or possibly two) earth dams upstream from the refuse pile. Solids were to settle behind the earth dams and clear water was to be impounded behind the refuse pile. This proposal was submitted to the State Water Resources Commission as a part of the company's stream-pollution abatement program.

The original refuse dam was begun in May, 1960. It was constructed by placing the coal refuse partially across the valley at a point upstream from the then-existing refuse pile. Previous reports (2, 3, 4) have mistakenly stated that the construction of Dam No. 1 began sometime in 1964. A search of the State Water Resources Commission records has established the accurate date as May, 1960. Preparation-plant waste water from the No. 5 preparation plant was pumped from a point on Buffalo Creek through the No. 5 mine and discharged into Middle Fork. Approximately 7400 feet of 6-inch-diameter pipe was used to carry the effluent through the mine. The discharge point was located approximately 3200 feet above Dam No. 1.

According to Davies, et al.(1), "At first the water drained rapidly through the bank in spite of several attempts to create a reservoir for use in dry seasons. However, after 1960, coal from strip- mine operations was processed through the washer. The fine [clay] material from the strip mines made the bank less pervious, resulting in a large impoundment. Water was then decanted [removed] from the large settling pool that formed into smaller clear ponds for recycling in the preparation process. Between 400,000 and 500,000 gallons per day containing about 500 tons of solids were pumped to the settling pool."

The fact that Dam No. 1 was constructed in 1960 rather than in 1964 as previously indicated would help account for the large sludge deposits that lie underneath Dams No. 2 and 3 (see Figure 2-1).

In November, 1963, the Lorado Coal Mining Company shut down its mining operations and No. 5 preparation plant on Buffalo Creek. The plant remained idle until October, 1964, when the Buffalo Mining Company began operating the plant, and Dam No. 1 was again used for filtration of the preparation-plant effluent.

2.2.2.1 U.S.G.S. Examination of Refuse Bank

At the request of the U. S. Bureau of Mines, the U. S. Geological Survey examined the coal-waste bank on Middle Fork December 9, 1966. On October 21, 1966, a large hillside waste bank at Aberfan, Wales, United Kingdom, had slumped, sending a mass of liquefied coal refuse 1600 feet down the hill. Concerned over the prospect that such a thing might occur in the United States, the U. S. Bureau of Mines prepared a list of all waste banks in the Appalachians that, because of their location and size, could cause loss of life or property if they slid in a manner similar to the bank at Aberfan. The refuse bank on Middle Fork was one of 38 waste banks in West Virginia that were examined in this regard. An inspector from the U. S. Bureau of Mines and a geologist from the Geological Survey examined "... the material and method of deposition. Additional time was spent examing the sides along the haul road down to the north face, the large pond (pool No. 1) behind the waste bank, the small dike on the east that added to the height of the impounding structure, the north face of the bank, and the seepage issuing near the base of the structure.

It was concluded that the waste bank at Saunders was stable as far as large slides were concerned but was subject to large washout on the north side from overflow of the lake (pool No. 1)."(1) A report from U.S.G.S. was filed with the U. S. Bureau of Mines. No written notification of these findings was ever made to Buffalo Mining Company.

2.2.3 Dam No. 2

Buffalo Mining Company constructed Dam No. 2 in 1966 to replace Pool No. 1, which had been rendered useless due to extensive silting in the reservoir behind Dam No. 1 and the need for the company to find an additional space for disposing of the refuse. Dam No. 2 was located approximately 600 feet upstream from Dam No. 1 and was constructed by dumping refuse across the width of the hollow on the deposits remaining in the reservoir behind Dam No. 1. No effort was made to clear vegetation or trees prior to this dumping. Clarified water from this second dam was flowed into the remaining area behind Dam No. 1.

In March, 1967, Dam No. 2, which was nearing completion (Hearing Transcript, Vol. Ill, p. 166, q. 356), was overtopped and partially carried away by high water from a snowmelt. Dam No. 1 was also overtopped and partially carried away. A small flood occurred in Buffalo Creek as a result. Department of Natural Resources inspectors had warned Buffalo Mining Company officials of the possibility of a washout on at least four previous occasions and no preventive action had been taken by the company. Subsequently, on March 16, 1967, a Notice to Comply with Water Pollution Control Permit was issued by the West Virginia Department of Natural Resources against Buffalo Mining Company. One of the deficiencies noted that Dam No. 2 needed strengthening and additional facilities to handle excessive surface runoff. The company complied by widening the dam by dumping more refuse from the preparation plant and installing a 30-inch-diameter overflow pipe.

A Department of Natural Resources, Water Resources Division, inspection report dated June 21, 1967, states in reference to Dam No. 2: "Careful engineering will have to be done on impoundment problems. We do not want any more washouts." However, testimony by E. J. Wood, former Vice-President, Buffalo Mining Company (Hearing Transcript, Vol. Ill, p. 115) to the Ad Hoc Commission indicated that engineering plans used were quite modest and undocumented.

By December, 1967, Dam No. 2 had been completed and could impound water to a depth of about 20 feet above the sludge deposits created by Dam No. 1.

In February, 1968, Mr. Harold Snyder, Director, Engineering Division West Virginia Public Service Commission, at the request of the Department of Natural Resources Deputy Director David Callaghan, inspected Dam No. 2 in response to a complaint to Governor Hulett C. Smith from Mrs. Pearl Woodrum, a Saunders' resident. Mr. D. S. Dasovich, Vice- President, Buffalo Mining Company, and Mr. Joseph C. Holly, Department of Natural Resources inspector, were present at this inspection. At that time, Mr. Snyder felt that there was no danger of a washout of the refuse dump. However, he did question the ability of the overflow pipes in Dam No. 2 to handle excess surface runoff. Mr. Snyder recommended that the company raise the level of the roadway over the drain- pipes to reinforce that section of the dam.

In February 1968, a search of the Public Service Commission records failed to show that approval had ever been granted for the construction of Dams No. 1 or 2 as provided for in Chapter 61, Article 3, Section 47, of the Code of West Virginia. In a letter to Mr. Callaghan, dated February 28, 1968, Mr. Boyce Griffith, Chairman of the West Virginia Public Service Commission, set forth his position in regard to dams. He wrote as follows:

. . .Legal Counsel feels that the Commission's jurisdiction extends merely to the safety of the design of a proposed construction. Also, the Code sets forth the violation as a misdemeanor and provides that such violation shall be deemed a nuisance abatable at the suit of any citizen or taxpayer or County Court of the County and that it seems that although the Commission has jurisdiction as to the safety of design the Legislature has not seen fit to grant enforcement power to the Commission. In this instance, it appears that no approval has ever been granted for a structure across this stream.

It would undoubtedly be helpful in the future if stilling basins made across natural watercourses are confined to less than fifteen (15') feet in height and, in this way, permission would not need to be granted for such construction under existing law.

We are glad to cooperate with your Department at any time and, in the case at hand, it would be well for the Mining Company to employ an engineer versed in hydrology and hydraulics to give it advice as to how to provide proper drainage to reduce the flood hazard.

A letter dated March 4, 1968, from the Engineer, Coal Section, Water Resources Division, Department of Natural Resources, was sent to Mr. Oval Damron, the Prosecuting Attorney, Logan County, informing him of Mrs. Woodrum's letter of complaint. No further action was taken. In testimony (Hearing Transcript, Vol. VI, p. 234) before this Ad Hoc Commission, the Logan County Prosecuting Attorney stated he had received a copy of the Woodrum letter of complaint along with the Department of Natural Resources correspondence. However, Mr. Damron stated that he did not take action because he believed that he would be further notified by the Department of Natural Resources if a hazard did indeed exist.

In February, 1971, Dam No. 2 ". . . cracked down the middle and slumped" (Hearing Transcript, Vol. III, p. 31). Black water entered Middle Fork and polluted Buffalo Creek below. More refuse was used to fill in and replace the material that was washed away and the dam was widened by dumping on the upstream side.

2.2.4 Dam No. 3

During the February, 1968, examination of the impoundment areas by Mr. Snyder and Mr. Holly, tentative plans were discussed for a new impoundment 600 feet up Middle Fork. Mr. D. S. Dasovich, Vice-President, Buffalo Mining Company, made a drawing showing the procedure for constructing the new impoundment (Figure 2-2). As an alternative, he suggested that the most effective method to insure against washout would be to widen Dam No. 2 by continuing to dump refuse on the upstream side (Hearing Transcript, Vol. Ill, p. 25, q. 54). However, in a Notice to Comply with Water Pollution Control Permit, issued by the West Virginia Department of Natural Resources against Buffalo Mining Company, dated March 28, 1968, one of the deficiencies noted is as follows: ". . . 9. Put in proposed refuse dump further up hollow behind impoundment to act as a retaining dam for solids in plant effluent ejected above and this refuse dump will also slow down surface runoff." In a letter of compliance dated May 29, 1968, Mr. Dasovich notified the West Virginia Department of Natural Resources that work had begun on Dam No. 3 and that it would ". . . be completed in the very near future."

Dam No. 3 was constructed by end dumping coal waste from trucks in closely spaced piles from 4 to 7 feet high and then graded in layers 2 to 4 feet thick. The dumping was carried across the valley from the right abutment on the No. 5 mine road toward the left abutment Figure 2-3). The dumping was done in the form of a single lift (level of material) which ranged up to 60 feet thick. Once the dam had been completed across the valley, dumping was mainly across the back side of the dam which steadily grew upstream. "Trees in the path of the dam construction were not removed but were covered by dumping. The pool area also was not cleared of vegetation. The sludge on which the waste was dumped was only partially displaced and much of it formed the foundation of the dam."(1)

Original estimates by the U. S. Army Corps of Engineers and the U. S. Geological Survey indicated that the sludge deposits were 15 to 20 feet deep. Additional drilling in the area (W. A. Wahler and Associates) indicates that sludge deposits beneath Dam No. 3 range between 40 and 100 feet in thickness. Deposits under Dam No. 2 rang between 50 and 100 feet in thickness.

In testimony before the Ad Hoc Commission, Mr. Dasovich stated (Hearing Transcript, Vol. III, p. 35, q. 90) that the method of constructing Dam No. 3 ". . . is common practice throughout the coalmining regions." No engineering plans were ever made for the construction of the impoundment. The only plan was Mr. Dasovich's sketch (Figure 2-2) made on February 26, 1968. Mr. Dasovich stated in reference to the design of Dam No. 3 (Hearing Transcript, Vol. Ill, p. 35 q. 91), "I wouldn't even begin to be able to engineer a thing like that. It has no . . . I know of no formula or any such method of so-called designing it."

Although Mr. Dasovich stated that he was not capable of engineering or designing the dam, higher company officials stated that additional engineering expertise was available to him from the Dante, Virginia, headquarters of The Pittston Company Coal Group. According to Mr. James E. Yates, Vice-President of Engineering, Coal Group, The Pittston Company (Hearing Transcript, Vol. IV, p. 122), Mr. Dasovich had asked for and received technical assistance on several previous occasions. He did not, however, seek advice on the construction and maintenance of Dam No. 3, which was still being constructed after The Pittston Company's acquisition.

During the construction of Dam No. 3, a major portion of the refuse sank and displaced some of the sludge upon which it was being built. This occurred in February, 1969. Mr. Dasovich stated that, "To me this was a good indication that we were getting the thing down on firm ground" (Hearing Transcript, Vol. III, p. 27, q. 60; p. 32, q. 76).

In June, 1970, The Pittston Company acquired the Buffalo Mining Company. Before acquisition, Pittston Company engineers surveyed the Buffalo Mining Company property. According to Nicholas T. Camicia, President, The Pittston Company, "Our reports had no indication that there was any danger, or that anything was wrong with the impoundments . . ." (Hearing Transcript, Vol. VI, p. 77). At the time of The Pittston Company acquisition, Dam No. 3 was " .. . already under construction, or maybe 50 percent completed . . ." (Hearing Transcript, Vol. VI, p. 76).

Dam No. 3 was near its final height in February, 1971. Thereafter the dam was widened by dumping on the upstream side. According to Davies, et al.(1), "By early February, 1972, dam No. 3 extended 465 feet across the valley along its front (downstream) crest, was 450 feet wide at the rear, and up to 550 feet wide along the center. From front to back along the compacted crest, it was 360 feet thick on the right and 480 feet thick on the left (looking downstream). On the right, the compacted crest rose 44 feet, and on the left, it rose 60 feet above the level of the sludge in pond No. 2. The compacted crest on the front (downstream) face was about 10 to 15 feet lower than the rear (upstream) face. All together, dam No. 3 contained about 10 million cubic feet of coal waste standing above the level of the sludge line of pool No. 2 and about 7 million cubic feet displacing the sludge below that line. About 800,000 tons of coal waste had been dumped to form the dam. The front face of the dam sloped 37 (degrees), the angle of repose for most coal-waste material, and the back sloped 32 (degrees), the angle of repose for such material where dumping was modified by impounded water. The front (northwest) face of the dam, based on an aerial photograph [Fig. 6 of Davies' report] taken November 3, 1971, was concave in plan and contained four small concave hollows. The rear face was nearly straight, except near the right abutment where a re-entry cut diagonally into the dam."

The downstream side of the left abutment of Dam No. 3 slumped in February or March, 1971. Mr. Ben Tudor, General Superintendent, Buffalo Mining Company (Hearing Transcript, Vol. III, p. 127) estimated the size of the slump to be 150 to 200 feet wide across the face of the dam and 20 to 30 feet from the face back. At that time, Mr. Tudor, Mr. Dasovich,and several other witnesses observed black water boiling into Pool No. 2 from the downstream side of the dam. (This would be an indication of foundation displacement and/or piping (see Section 9.0, GLOSSARY OF TERMS) a year before the February 26 failure.) The pool level in the reservoir behind Dam No. 3 was 20 feet below the crest at that time.

Figure 2-4 is a reconstructed view of Dams No. 1, 2, and 3 and the coal-refuse bank and Figure 2-5 is an aerial view of the Buffalo Creek area showing the location of the dams and the preparation plant,

2.2.4.1 Overflow Pipe on Dam No. 3

In a March 25, 1971, inspection report by a West Virginia Department of Natural Resources inspector, one of the deficiencies listed is the ". . . lack of emergency spillway or overflow system from upper impoundment." (In this instance, "upper impoundment" refers to Dam No. 3.) The inspector also noted the following: "New haulroad into refuse dump is needed so dump can be built to control runoff, reinforce impoundment, and supply needed emergency spillway for impoundment." Following this inspection, on April 16, 1971, a Notice to Comply with Water Pollution Control Permit was issued by the West Virginia Department of Natural Resources against Buffalo Mining Company. The accompanying letter from the Department of Natural Resources also pointed out that all Inspection Reports covering a period from September 19, 1966, through March 25, 1971, had been "unsatisfactory."

In a letter dated June 24, 1971, Mr. Dasovich informed Mr. Edgar Henry of the West Virginia Department of Natural Resources that a "24-inch emergency spillway" had been installed on Dam No. 3. The "spillway," according to Mr. Dasovich's testimony, was a length of butt-welded, 1/4-inch pipe, 24 inches in diameter, placed diagonally across the right side of Dam No. 3 and about 7 or 8 feet below the graded crest. No collar or baffles were used (Hearing Transcript, Vol. III, p. 19).

No attempt appears to have been made to learn the expected run off patterns from the watershed feeding Dam No. 3. Also, up to the time of the flood, an adequate spillway system had not been installed. Plans were to install a permanent spillway on the left bank of Middle Fork (referred to in the March 25, 1971, Inspection Report) along the side of Pool No. 2.

2. 2. 5 Dam No. 4

Dam No. 4 was constructed in 1969 and is still in place. This dam, which is constructed mainly of shale with coal waste, "... rises 25 feet above the bed of Middle Fork. The dam is about 200 feet long and its crest ranges in width from 10 feet near the west side to over 40 feet on the east. The area behind the dam is filled with silt and coal waste and no water is impounded. A spillway on bedrock is on the left (west) side of the dam."

2.3 EVENTS PRECEDING THE REFUSE DAM FAILURE

On Tuesday morning, February 22, 1972, Buffalo Mining Company became aware of the high-water problem behind Dam No. 3 when Mr. D. S. Dasovich visited the area to observe the condition of the roads to the various company mines, and while doing so drove onto the impoundments (Hearing Transcript, Vol. III, p. 40). The water level behind Dam No. 3 was several feet below the opening to the 24-inch drainpipe. He did not return to the area until Thursday, February 24, at which time he was in transit to the No. 8-1/2 mine. At that time, he observed water flowing from the downstream opening of the 24-inch, drainpipe in Dam No. 3. According to Mr. Dasovich's observations, the water level behind Dam No. 3 had risen 2 or 3 feet during the two-day interval.

Also on Thursday, February 24, Mr. Jack Kent, Strip Mine Superintendent, Buffalo Mining Company, observed the water rising behind Dam No. 3. At 4:00 p.m. Thursday, February 24, Mr. Kent observed that the water was about 5 feet below the crest of the compacted portion of the dam. At that time, Mr. Kent placed a measuring stick (a limb from a tree) into the upstream bank of Dam No. 3 near the upstream opening to the 24-inch overflow pipe. It was placed in the embankment so that the top of the stick was approximately 1 foot below the top of the compacted part of the dam (Hearing Transcript, Vol. I, p. 129). At that time, he was not able to actually see the upstream opening to the overflow pipe. Mr. Kent continued to make checks on the condition of the impoundment until about midnight Thursday. Shortly before 6:00 a.m. Friday, February 25, Mr. Kent received a telephone call from Mr. Dasovich, who had just examined the dam. Mr. Dasovich stated in this phone conversation that he considered Dam No. 3 to be "all right" (Vol. I, p. 128). Mr. Kent then proceeded to his regular job and did not return to the dam site until 4:00 p.m. Friday, February 25.

At about 10:30 a.m. Friday, February 25, Pittston and Buffalo Mining Company officials met at the Lorado office with representatives of the Department of Natural Resources to discuss Buffalo Mining Company's proposal for a surface-mining operation just south of Lorado. The meeting had been arranged a week. earlier. Representing the company were I. C. Spotte, John Keblish, James White (Pittston reclamation specialist), and D. S. Dasovich. Department of Natural Resources representatives were Ira S. Latimer, Jr., Director; Benjamin C. Greene, Chief Division of Reclamation; James A. Pitsenbarger, Assistant Chief; Richard Frazier, District Reclamation Inspector; and McDonald Smith, Drainage Engineer. Also present were representatives of two construction companies. The proposed site was visited in the afternoon and the meeting concluded at about 4:30 p.m. I. C. Spotte testified (Hearing Transcript Vol. IV, p. 82) that during the day-long meeting no problems concerning Dam No. 3 were brought to the State's attention, nor was it visited on the tour.

When Mr. Kent returned to the dam site at 4:00 p.m. Friday, February 25, he observed that the water level had risen 18 inches according to the markings on the measuring stick. Mr. Ben Tudor, General Superintendent, Buffalo Mining Company, also checked the water level at about 5:30 p.m. Sometime Friday evening, Mr. Kent informed Mr. Dasovich that he would voluntarily check the water level behind Dam No. 3 throughout the night (Vol. I, p. 128). After his 4:00 p.m. visit, Mr. Kent continued to check the water level at regular intervals. At approximately 9:00 p.m. Friday, February 25, Mr. Kent was accompanied to the dam by Mr. Elmer Elswick, a foreman at the strip-mine operations. From approximately 9:00 p.m. Friday, February 25, until 6:30 a.m. Saturday, February 26, Mr. Kent was the only Buffalo Mining Company official known to have visited the dam site.

In his visits to the dam after 4:00 p.m. February 25, Mr. Kent recorded an increase in water level of an inch per hour until 3:30 a.m. Saturday, February 26, at which time he observed that the water was rising 2 inches per hour. At 4:30 a.m., Mr. Kent was accompanied to the site by two Saunders' residents, Mr. Denny Gibson and Mr. Harvey Pierson (Vol. II, p. 71). At that time, Mr. Kent and Mr. Gibson removed a tire from one of the drainpipes on Dam No. 1. Mr. Kent observed that the water behind Dam No. 3 had risen 3 inches within the preceding hour. Only 3 inches on the measuring stick remained uncovered. At 5:00 a.m. February 26, Mr. Kent telephoned Mr. Dasovich, informed him of the rising water behind the impoundment, and asked that he come and look at the dam.

On his way to the impoundment area, Mr. Dasovich stopped at a restaurant in Man where he met Deputy Sheriff Otto Mutters. Mr. Mutters had been called out to check the dams at 5:00 a.m. by Mr. Larry Spriggs, the Logan County jailer. Mr. Spriggs had received a call from an unidentified woman in Lorado at 3:55 a.m. on Saturday, February 26, 1972, warning that the pool behind the dam on Middle Fork was rising at a rate of 6 to 8 inches per hour. Mr. Mutters drove on up Buffalo Creek alone and was passed by Mr. Dasovich at Lorado.

At approximately 6:00 a.m., Saturday, February 26 (Vol. III, p. 12), Mr. Dasovich and Mr. Kent examined Dam No. 3. At that time, according to Mr. Dasovich, water was coming through the overflow pipe. The rising water had covered Mr. Kent's measuring stick and was nearly 1 foot below the crest of the compacted part of the dam (Vol. I, p. 129). But Mr. Dasovich ". . . wasn't alarmed about it. I have seen the water like that before, especially in the No. 2 impoundment" (Vol. III, p. 10). Mr. Kent and Mr. Dasovich walked the length of Dam No. 3 "front and back facing the thing" (Vol. III, p. 42). Mr. Dasovich observed several longitudinal cracks across the front of the dam near the left abutment, but did not become alarmed because this was an area of active dumping (Vol. III, p. 31). Also present at the 6:00 a.m. examination of the dam was Mr. Waldon Mullins, Superintendent, No. 5 mine. Mr. Mullins did not speak with Kent or Dasovich. Accompanied by an employee at the No. 5 mine, he walked from the right abutment halfway across Dam No. 3. According to his observations the surface was firm.

During the 6:00 a.m. examination of the dam, Mr. Dasovich and Mr. Kent discussed having a ditch dug from the No. 3 reservoir through the crest of the No. 3 dam to the diversion ditch along the No. 5 mine road.

There were two sections of 24-inch-diameter metal pipe available near the dam (Hearing Transcript, Vol. III, p. 219) and Mr. Dasovich intended to have these pipes welded together and placed into this ditch to act as an additional overflow from the No. 3 reservoir.

According to his testimony, Mr. Dasovich's only concern at that time was the possibility of the water overtopping Dam No. 3 and flooding the roadway below (Vol. V, p. 32). After examining the dam, Mr. Kent and Mr. Dasovich left the impoundment area. On his way to the Buffalo Mining Company offices in Lorado, Mr. Dasovich saw Deputy Sheriff Mutters and Deputy Sheriff Doty at the railroad crossing by the Lorado Grade School. At that time, Mr. Dasovich reports saying to Mutters, "Otto, the thing looks all right. We are going to do a little work on it" (Vol. Ill, p. 13). According to Mr. Mutters, Dasovich said, "We have ditched this (or channeled it) and it looks all right" (Hearing Transcript, Vol. II, p. 129). According to Mr. Mutters, his conversation with Dasovich took place at approximately 6:15 or 6:20 a.m. February 26. Mr. Dasovich testified that he also assured several Lorado residents that he ". . . could see nothing to be particularly alarmed about." Mr. Dasovich proceeded to his office in Lorado at about 6:30 a.m.

Having spoken with other Buffalo Creek residents who were still concerned about the dam, Deputy Mutters continued to warn residents in the area. In testimony before the Ad Hoc Commission, Mr. Mutters stated, "If Steve (Dasovich) had known that dam was going to break, and informed us of that, then, hell, I don't think anybody would have got drowned. Chances are we could have got everybody out, me and the other patrol car (Doty's)" (Hearing Transcript, Vol. II, p. 131).

After returning to the Buffalo Mining Company offices, Mr. Kent ordered Elmer Elswick to take two bulldozer operators, Mr. Junior Bays and Mr. Lester Weiss, to the strip-mine operations in order to transport bulldozers to the dam for installation of the additional overflow pipe. Before Mr. Bays and Mr. Weiss returned to the dam site, the failure had occurred. While in his office, Mr. Dasovich instructed Mr. Stanley Morris to make the necessary preparations for welding the two lengths of pipe together. At 6:45 a.m., Mr. Dasovich telephoned Mr. I. C. Spotte, President, Buffalo Mining Company, in Dante, Virginia and ". . . advised him of the situation, told him about the intense rainfall and the concern of some of the people and what I planned to do to alleviate some of their fears on it" (Vol. V, p. 33). Mr. Dasovich then made further plans to install the additional pipe on Dam No. 3.

At approximately 7:00 a.m., Mr. Ben Tudor observed the No. 3 impoundment. This was the first observation he had made since 5:30 p.m. on Thursday, February 25, 1972. At 7:00 a.m. and again at approximately 7:30 a.m., Mr. Tudor observed the water level in the No. 3 reservoir to be approximately 8 feet below the crest. He made his visual observation from the No. 5 mine road. At this time, Mr. Tudor was "concerned about the people in Saunders and thought they should be evacuated. But I wasn't worried about on downstream" (Vol. III, p. 142).

Meanwhile, after attempting to obtain raincoats for the engineers who would be running elevations for the ditch line on the impoundment, Mr. Dasovich was notified that a dam had "broken at the tipple" (Vol. III, p. 14). He proceeded to drive from Lundale up Buffalo Creek toward the No. 5 mine. His account of what he saw is as follows:

As I got up to just above Craneco, on the straight stretch, I met this wall of water. I was just amazed.

I pulled over to the side of the road, and my vehicle stalled out. I splashed some water on it, or something.

I got out, and this wall of water come by me, possibly 10 or 15 feet high.

I could hear all this loud noise in Lorado, so I went up on the bank to see what was going on up there, and the water was picking up the houses like tent pegs and throwing them back.

There is a small backwash there where the kick back track is, going up to Lundale 2, and it was pushing the houses over in there and debris and everything was going down.

I saw the wall of water hit the bridge there at the mouth of Dingess Branch, and turned. The whole thing went right down through Lundale, and just every house, it wiped them all out.

After the water had gone by, it didn't seem like over 10 minutes, two or three people that work at Lorado come by, and we were going to drive down, and couldn't get in where the debris was in the road. So they jumped out and went on down the road.

Throughout the night of February 25-26, 1972, several residents from Saunders and other Buffalo Creek communities also visited the dan

Mr. Edgar Pierson (Hearing Transcript, Vol. II, p. 84) was on Dam No. 3 sometime between 10:00 a.m. and 11:00 p.m., Friday, February 25, 1972. At that time, Mr. Pierson observed a crack, from 6 to 8 inches wide extending three-quarters of the way across the surface of the dam from the left toward the right abutment. It was possible for Mr. Pierson to see down into the crack, which, to him, resembled a mine surface crack (Vol. II, p. 89). The water level behind Dam No. 3 was from 10 to 15 inches below the crest of the dam. The crest of the dam was soft, causing him to sink into the surface of the dam, nearly covering the tops of his boots. Mr. Pierson also observed black water seeping into Pool No. 2 at the toe of Dam No. 3 (Vol. II, p. 93). After completing his visit to the dam site, Mr. Pierson alerted other Saunders' residents to the possibility of the dam's failure and suggested that they evacuate their homes immediately. According to his testimony all of the people in Saunders had been notified by approximately 12:00 midnight, February 25, 1972 (Vol. II, p. 87).

Mr. Harvey Pierson, Edgar Pierson's son, also visited Dam No. 3 at 2:00 a.m. and again at approximately 4:30 a.m., Saturday, February 26. During the 2:00 a.m. visit, Mr. Pierson observed Mr. Kent's measuring stick and returned to the camp. At 4:30 a.m., he again went to the dam along with Mr. Denny Gibson and Mr. Kent. Water in Pool No. 1 was 4 inches from the crest of Dam No. 1. One of the drainpipes in Dam No. 1 was clogged with a tire. Mr. Kent and Mr. Gibson removed the tire from the drainpipe and the water level in Pool No. 1 dropped immediately. The water level in Pool No. 3 was at the crest of Dam No. 3 and at the base of the ungraded coal-waste piles. The surface of Dam No. 3 was, according to the witness, "sort of soft, slate-like."

Mr. Kenneth Osborne examined Dam No. 3 at 4:00 a.m. February 26, and again sometime near 7:00 a.m. On his 7:00 a.m. visit, Mr. Osborne reported seeing two sections of 24-inch-diameter corrugated steel pipe laid end to end to form a 40- to 60-foot section on the crest of the dam. On the 7:00 a.m. visit, he also reported seeing a crack 10 feet wide and 30 feet long (Vol. II, p. 35) on the downstream side of the left abutment of Dam No. 3. The crest of the dam was soft "like jelly" (Vol. II, p. 36) at that time.

Mr. Denny Gibson visited Dam No. 3 several times on the morning of Saturday, February 26, 1972, to observe the water level in the reservoir behind the impoundment. He also warned several Saunders' and Lorado residents of the possibility of the dam failure. He made his first visit to the dam at 12:30 or 1:00 a.m., February 26, with Mr. Kent. At 4:30 a.m., February 26, Mr. Gibson and Harvey Pierson accompanied Mr. Kent to the dam sites, at which time Mr. Gibson assisted Mr. Kent in removing the tire which was blocking the No. I impoundment overflow pipe. The witness returned to the dam at 6:00 a.m, February 26, with Kenneth Osborne. At that time, Mr. Gibson observed a 50-foot length of 24-inch-diameter, corrugated, galvanized pipe on the crest of the dam, partially buried on the left quarter of the dam. Later -testimony from this witness revealed that he had seen this pipe on the dam at least one week prior to February 26. Mr. Gibson again visited the dam at 7:50 a.m., February 26. This time the witness was alone. He saw that Mr. Kent's measuring stick was submerged. The crest of the dam was soft, "real soggy, like mush" (Vol. I, p. 189). Water was "oozing" through the loose refuse piles on the top of the dam. He also saw large cracks and slumps on the downstream face of Dam No. 3 near the center of the dam.

At approximately 7:45 a.m., February 26, Mr. Wayne Goodman, Chief Electrician, Buffalo Mining Company, examined Dam No. 3 and the overflow pipe on his way to the No. 5 mine portal. "The surface was firm. It was wet, but it was firm" (Vol. Ill, p. 232). ". . . I walked the road over toward the discharge end and [of] the overflow, because I saw something white, that was an old piece of yellow plastic braddish [brattice] over the overflow . . . there was between 8 and 10 inches standing through the overflow . . . The pool in back of Dam No. 3 liked [lacked] about 8 feet, I would say between 6 and 8 feet, anyhow, of reaching the top of the dam" (Vol. Ill, pp. 232-233) Mr. Goodman also stated that, "There was nothing to indicate whatever that there was any failure." He proceeded to the No. 5 mine portal and was notified a few minutes later that, "The dam is gone."

2.4 EYEWITNESS OBSERVATIONS FOLLOWING THE FAILURE OF THE DAM

Apparently, there was no eyewitness to the actual failure of Dam No. 3, although a number of people were in the vicinity of the dam immediately prior to and following the failure.

Mr. Billy C. Linville (.Hearing Transcript, Vol. IV, p. 159) left the storehouse at the tipple just before 8:00 a.m., Saturday, February 26, 1972, to check Dam No. 3 at the request of D. S. Dasovich. He went up the haulroad and stopped at the curve near the front of the refuse bank where he observed a 2- to 3-inch deep flow of black water coming over the road. The water flow rate increased. When the water reached the burning part of the refuse bank, there was an explosion that blew debris onto Mr. Linville and his truck. Other explosions followed. He returned to Buffalo Creek by backing down the haulroad and proceeded down the Buffalo Creek road nearly to the mouth of Middle Fork at 8:10 a.m. A large flow of black water (over 5 feet deep) was coming out of Middle Fork. It bounced off the hill on the opposite side of Buffalo Creek. Mr. Linville returned to the storehouse and informed Waldon Mullins, Ben Tudor, and William Baker of the water at Middle Fork. He then returned to the mouth of Middle Fork with Mr. Baker and Mr. Tudor. They then drove to a point near the curve in the No. 5 mine road near the mouth of Middle Fork and he observed the remnants of the town of Saunders.

At about 8:00 e.m., February 26, Mr. John Wells (Hearing Transcript, Vol. I, p. 174) was driving down the No. 5 mine portal toward the mouth of Middle Fork. At a point 300 feet above the upstream side of Dam No. 3, his car was showered with black water containing fine black material. Mr. Wells continued down the road and turned around on the road above Dam No. 3. There appeared to be a solid sheet of water across the valley below the dam. Mr. Wells returned to the No. 5 mine portal. The lights had gone out in part of the building. He attempted to phone some of the people in the valley, but the line was dead.

Mr. Herbert Pruitt (Vol. V, p. 103) left the No. 5 mine portal no later than 8:04 a.m., Saturday, February 26. He arrived at Dam No. 3 some 3 or 4 minutes later and was stopped by the washout of the road below Dam No. 3. He saw a smooth sheet of water stretching from the right abutment "going out at a tremendous speed" about 50 feet in width. The water level was 30 to 40 feet below the level of the No. 5 mine roadway. "The bigger part of the dam had gone, and I assumed the bigger part of the water had done gone, but there was still a tremendous amount of water going out of the dam" (Vol. V, p. 108). When Mr. Pruitt made his observations, several other men were present: "Johnny Wells, Wayne Goodman, Charles Lockhart, Earl Estrich, William Flowers . . . and William Peyton" (Vol. V, p. 106).

Mr. William Peyton, Section Foreman, Buffalo Mining Company, left the No. 5 mine portal at approximately 8:10 a.m. on Saturday, February 26. He was stopped at Dam No. 3 by the washout in the road above Dam No. 2. Mr. Peyton observed that 75 to 100 feet of the right side of Dam No. 3 was gone, with the remainder of the dam sliding into the breach. He had difficulty in seeing across the valley because of the ashes and smoke from the explosion at the refuse bank. The water level was 10 to 15 feet below the level of the No. 5 mine road. The water level was down to the base of the dam within 20 to 25 minutes and the creek was flowing in the channel through the original dam site.

At approximately 8:00 a.m., February 26, 1972, Mr. Ozzie Adkins (Vol. I, p. 58), who lives in a house 200 feet up Lee Fork (at the right center of Figure 2-4), heard several explosions that occurred in the direction of the front of the refuse bank on Middle Fork. At about the same time, he observed a wall of water coming out of Middle Fork into Buffalo Creek. The water carried away the church that stood at the mouth of Lee Fork. The flood flow lasted approximately 15 minutes.

At 8:02 a.m., February 26, Mr. William Baker (Vol. III, p. 238) was driving down the Buffalo Creek road from the No. 5 preparation plant toward Saunders (bottom center of Figure 2-4) when he was stopped by a wall of water 8 to 10 feet high flowing from the mouth of Middle Fork. Sludge was hurled onto his windshield. He saw a trailer in the Saunders' camp flung into the air by the water. There were several puff-like explosions at the front of the refuse bank which formed mushroom-shaped clouds extending 200 to 300 feet up Middle Fork.

Mr. Baker immediately returned to the supply house at the No. 5 preparation plant where he met Mr. Ben Tudor and Mr. Waldon Mullins. The men drove back down the Buffalo Creek road where the wall of water flowing from Middle Fork had risen to between 18 and 20 feet in height. They then drove up the No. 5 mine road (also shown on Figure 2-4) until they were stopped by water at the bend in the road opposite the front of the refuse pile. From this point, Mr. Baker could observe what remained of the Saunders' area. Islands of debris protruded from a sheet of water extending from one side of the valley to the other.

2.5 WEATHER CONDITIONS CONTRIBUTING TO THE BUFFALO CREEK FLOOD

Three weather reporting stations are located near Buffalo Creek hollow: (1) Logan, approximately 15.5 miles west northwest of Lorado; (2) Madison, approximately 18.8 miles north northwest of Lorado; and (3) Pineville, approximately 17.3 miles southeast of Lorado. Average values of temperature, total precipitation, and total snow for these stations for January and February, 1972, are tabulated below. (TABLE)

Although similar figures are not available for Madison and Pineville, the records indicate that in 1972 the total precipitation at Logan was 2.32 inches (62 percent) greater than normal for January and 3.06 inches (86 percent) greater than normal for February. Daily precipitation and maximum and minimum temperatures for the three stations are tabulated below. (TABLES)

No information is available on snowfall or snow on the ground at Logan. At Madison, the maximum snowfall during the two-month period was 2 inches on February 4, 1972, and the snow on the ground there never exceeded 1 inch. The maximum snowfall at Pineville was 8 inches on February 20, 1972. This new snow plus the small amount which had fallen the previous day made a total on the ground of 9 inches. By February 21, however, only 2 inches remained and from February 22 until the end of the month, the ground was bare.

Total precipitation during the three-day period of February 24-26, 1972, was 3.72 inches at Logan, 3.66 inches at Madison, and 3.73 inches at Pineville. The close agreement between these values indicates the general and widespread nature of the rain and, by implication, gives evidence that amounts of precipitation were not significantly greater in isolated locations within the area. Total precipitation for the seven-day period ending February 26, 1972 also varied by only 0.12 inch in the three locations.

Temperatures were well above freezing at the three stations on February 25-26, and reached 68 F at Logan and Pineville on February 26 (65°F at Madison). Minimum temperatures were only slightly below freezing on February 23-24.

Considering both the precipitation in the form of rain and the warm temperatures, it is unlikely that any significant amount of snow could have existed on the ground during the four-day period preceding the failure of the dam on Middle Fork. It is also unlikely that any ice had frozen or accumulated on the downstream face of the dam.

2.6 SOURCE OF FLOODWATER*

*The text in all of Section 2.6 is quoted from Geological Survey Circular 667, West Virginia Buffalo Creek Flood: A Study of the Hydrology and Engineering Geology, by William E. Davies, James F. Bailey, and Donovan B. Kelly.

Three possible sources of water could have contributed significantly to the Buffalo Creek, flood: heavy runoff from melting snow, heavy runoff from locally intense cloudburst rainfall in any of the streams tributary to Buffalo Creek, and water released from the reservoir on Middle Fork following failure of coal-waste Dam No. 3. As will be shown, the failure of Dam No. 3 on Middle Fork contributed almost all of the peak floodflow in Buffalo Creek; direct runoff from snowmelt or rainfall and inflow from tributaries other than Middle Fork were not significant.

2.6.1 Snowmelt

Residents of the Buffalo Creek hollow discount the importance of the snow cover in producing the floodflow. They report that by the end of February snow cover was limited to scattered drifts mainly on the northern slopes of the higher hills. According to the National Weather Service, the last snowstorm reported prior to the flood dropped about 1.5 inches of snow at Logan on February 19-20. On February 25, the day before the flood, very little snow was visible in the hills.

2.6.2 Precipitation

During the 72-hour period immediately preceding the flood, precipitation averaged 3.7 inches at Logan and at other stations 15-20 miles south and east of Buffalo Creek, according to the National Weather Service (Figure 2-6). About half of the rainfall (1.9 in.) at Logan fell in the 24 hours that preceded the flood. Precipitation tapered off to the north during the 3-day period, measuring 2.35 inches in Charleston. Maximum precipitation during the storm was 4.5 inches produced at Williamson, 22 miles west of Buffalo Creek. A bucket survey in the Buffalo Creek hollow conducted by field parties during the week following the flood revealed no catchment of precipitation in open cans and other available containers that exceeded 3.7 inches recorded at Logan.

According to National Weather Service estimates, 3.7 inches of rain in 3 days is about a 2-year rainfall; that is, southwestern West Virginia can expect precipitation to equal or exceed 3.7 inches in a 3-day period over a long-term average of once every 2 years. In fact, precipitation exceeding 3.7 inches in a 2-or 3-day period has been measured at Logan eight times in the last 17 years. Indirect measurements of peak discharges of streams tributary to Buffalo Creek and inspection of streams near the Buffalo Creek basin produced no evidence of sudden high flows from cloudburst rainfall.

In conclusion, February was a slightly wetter month than normal; total precipitation at Logan during the month was 4.56 inches, 1.2 inches above the 30-year average. Although the storm of February 24- 26 dumped most of its precipitation during the 24 hours immediately preceding the flood, no evidence was found of large cloudburst rainfalls that could contribute the large volume of water needed to produce the flash flood on Middle Fork and Buffalo Creek. The only available source of water large enough to produce the flood was the pool of water behind coal-waste Dam No. 3 on the Middle Fork.

2.6.3 Pool on Middle Fork

Information on inflow and characteristics of the pool behind coal-waste Dam No. 3 were determined from field surveys and interviews with local residents. The pool reached its maximum volume, about 17.6 million cubic feet of water and sludge, around 8:00 a.m. on Saturday, February 26 (Figure 2-7). At that time the water-surface elevation had risen to 1,753.1 feet above mean sea level, and the depth of water in the pool just upstream of the coal-waste dam was 47.3 feet above the level of sludge remaining after failure of the dam. The surface area of the pool at the time of the dam failure was 14.2 acres (Figure 2-8), and the pool extended 2,100 feet up the Middle Fork valley.

The highest sludge line behind Dam No. 3 was at an elevation of 1,733.6 feet m.s.l. (mean sea level). At that elevation, the volume of sludge was 8.4 million cubic feet and the surface area was 10.3 acres.

There are two known sources of inflow to the pool: natural drainage from Middle Fork basin, and water pumped from nearby mines and from the washing plant located one-half mile east of the mouth of Middle Fork. Inflow from natural drainage is the principal source of inflow. Information furnished by local residents indicates that pumping, if there was pumping during the storm period, would not contribute significantly to the inflow. As much as 25,000 cubic feet per day might be pumped, an insignificant amount when compared to total pool volume of 17.6 million cubic feet.

Middle Fork drains an area of 1.18 square miles, 1.1 square miles of which is above coal-waste Dam No. 3. Peak inflow during the storm period and rate of rise of pool contents are estimated from interviews with mine-company personnel and from indirect measurements on other small drainage areas in the Buffalo Creek basin near Middle Fork.

Analysis of Mr. Kent's observations from Thursday, February 24 through Saturday, February 26, indicate a rise of slightly less than 1 inch per hour on Thursday afternoon, increasing to about 3 inches per hour by 3:00 a.m. Saturday. Using the stage-volume curve shown in Figure 2-6 and the observations made on the measuring stick, the rate of rise of the pool is shown in Figure 2-9.

Outflow from the reservoir cannot be reliably established from the information available. A 24-inch drain pipe (or pipes) is reported to have been in place and carrying flow at the time of the dam failure. The exact position of this drain pipe in the dam and the true head on the pipe have not been ascertained. However, computations based on its location as reported by eyewitnesses yield a peak flow through the pipe of about 10 cfs* (4,500 gpm*).

Using the rate of change in contents relation developed in Figure 2-9 and adjusting for outflow, the inflow graph shown in Figure 2-10 was developed for the period 6:00 p.m. Thursday, February 24, to 4:00 a.m. Saturday, February 26, when observations on the elevation of the impounded water were discontinued. The inflow curve does not include seepage through the dam. Maximum seepage, estimated at less than 10 cfs (4,500 gpm), would have occurred just prior to failure when the hydraulic gradient through the dam was the greatest.

Peak inflow for the storm is estimated as 70 cfs (31,000 gpm) on the basis of yield per square mile determined for several small tributaries in the Buffalo Creek basin near Middle Fork. Data collected at gaging stations on surrounding streams show peaks on February 25 and 26 of nearly the same magnitude; however, the peak discharge on Middle Fork is believed to have occurred on February 26.

2.7 ENGINEERING ANALYSIS OF THE DAM FAILURE

2.7.1 Evidence of Foundation Seepage (Piping)

Within a year prior to the failure of Dam No. 3, Paul Lankas, a Buffalo Mining Company employee, reported black water boiling up from the bottom of Pool No. 2 near the downstream toe {Hearing Transcript, Vol. IV, p. 151). Mr. Dasovich and Mr. Tudor observed black water boiling up from Pool No. 2 near the downstream toe during the February, 1971, slump of Dam No. 3.

Mr. Edgar Pierson also observed black water seeping into Pool No. 2 sometime between 10:00 and 11:00 p.m. on Friday, February 25. These observations are indicative of sludge displacement and/or piping through the foundation of Dam No. 3, which would have contributed significantly to the weakening of an already unstable foundation.

2.7.2 Evidence of Slumping

A large dome-shaped mound not eroded or scoured by water action remained at the toe of Dam No. 3 about 120 feet from the left abutment (Figure 2-11 and 2-12). The mound is apparently a remnant of a slump that moved diagonally to the left of the downstream side. Throughout the night of February 25-26, several eyewitnesses reported seeing cracks across the surface of the dam and slumps on the downstream face (Vol. I, p. 189; Vol. II, pp. 35, 89; Vol. Ill, p. 31).

Figure 2-1 (W. A. Wahler and Associates) is a geologic cross-section of Middle Fork based on field investigations made following the February 26 dam failure and is the most significant evidence that can be used to describe the mode of failure. As can be seen in Figure 2-1, the reservoir sediment (or sludge) that formerly underlaid the downstream portion of Dam No. 3 and Pool No. 2 has been displaced by Dam No. 3 embankment material. The reservoir sediment has been pushed forward against the back side of Dam No. 2 and now forms a series of ridges up to 10 feet high and 20 feet wide. This indicates that Pool No. 2 sediment had been forced against Dam No. 2 by a shear failure on the downstream side of Dam Ho. 3. When total failure of the dam occurred, a portion of the Dam No. 3 material slipped down into the void created by the displacement of the Pool No. 2 sludge and water (Figure 2-1).

2.7.3 Summary of Failure * (See Section 8.0, MINORITY OPINION, Jay Hilary Kelley)

Figure 2-13 illustrates the sequence of failure of Dam No. 3. The increased water head due to the rain increased the rate of piping through the base of the dam. As piping action increased, the flow path was shortened and the exiting pressure was increased. The piping action and sludge displacement was the initial mechanism of failure (Trigger 1 or T1 in Figure 3-13) and resulted in further weakening of the already unstable foundation.

As the water level rose rapidly behind Dam No. 3, the dam was becoming super-saturated, thus increasing its weight and adding to the load on the foundation. The increased weight of the downstream portion of the dam was a second initiating mechanism (T2, Figure 2-13) and in combination with T1 resulted in a large rotational shear failure of the downstream portion of the dam.

The downstream portion of the dam failed, simultaneously causing the particles in the remainder of the dam to re-orient themselves in an attempt to re-establish equilibrium, thus decreasing their void spaces and increasing their neutral stress resulting in liquefaction. Then the driving force established by the water head in the pool and the near-zero shear strength of the material within the dam caused sudden total collapse of the dam.

The torrent of water released by the failure overtopped Dams No. 1 and 2 and came into contact with the burning coal-waste bank, increasing the hydrostatic pressure within the bank and causing explosions of steam and producer-type gas. Moments later, the water entered Buffalo Creek.

2.7.4 Conditions That Led to the Failure

2.7.4.1 Improper Construction of Dam No. 3

Dam No. 3 was not built using engineering practice standard in earth-dam construction; no foundation preparation was done and no attempt at compaction of the fill material was made other than occasional grading by bulldozer.

Whatever the intention was at the time of dumping, the fill impounded water and functioned as a dam. A normal practice in the construction of such a dam would have been: first, the removal of all vegetation, diversion of the drainage, scarification of the surface to a 6-to 12-inch depth, and then the placement of fill material compacted at least to 90% of maximum relative density in a maximum lift of about 12 inches. Considering that the unit weight of the coal wastes is far less than that of the ordinary earth-fill material, a more careful site preparation should have been made to prevent surface erosion and improve overall stability. Zoning of the dam material for water-seepage control should have been considered.

2.7.4.2 Weak Foundation Material

The dam was built on the thick sludge layer 40 to 100 feet in thickness which had been impounded by Dams No. 1 and 2. The sludge is a weak material having negligible shear strength.

2.7.4.3 Inadequate Overflow System

A 24-inch overflow pipe for high-water conditions was placed in the dam approximately 7 to 10 feet below the level of the compacted crest. However, this pipe was not of a sufficient size to handle the water increase at the time of failure. Furthermore, the pipe should have been placed lower in the dam to be effective. The dam should have had a fool-proof decant system or spillway designed by and constructed under the direction of a registered professional engineer with a knowledge of dam construction.

2.7.4.4 Properties of Refuse Material Used to Construct Dam

The strength of refuse material is about the same as loose sand, but the most critical property of the material is its low unit weight. The average unit weight is about 78 pcf* whereas that for ordinary sands is about 100 pcf. The lightness of the material needs to be considered in the dam design because it provides less confining pressure than an equivalent volume of more usual material. The strength of earth material generally increases linearly with the confining pressure. The probability of liquefaction and piping is also inversely proportional to the unit weight of the material. For example, only 0.25 ft/ft of hydraulic gradient would be required to give rise to piping for Dam No. 3, whereas 0.92 ft/ft would be required for sand of the same compaction. Because of improper installation of the spillway pipe, seepage probably developed around it, thus increasing the effective hydraulic gradient in the downstream side of the dam.

2.8 ANALYSIS OF OTHER REPORTED MODES OF FAILURE*

*The text in all of Sections 2.8 and 2.9 is quoted from Geological Survey Circular 667, West Virginia Buffalo Creek Flood: A Study of the Hydrology and Engineering Geology, by William E. Davies, James F. Bailey, and Donovan B. Kelly.

Several other causes of the failure of coal-waste Dam No. 3 have been cited elsewhere, but eyewitness accounts and geological-engineering evidence refute them. The causes cited and refuted are explosions within the dam, ditching, and dynamiting.

2.8.1 Explosions Within the Dam

The remnants of the dam show no evidence of combustion. No red dog (the common by-product of burning coal waste) except that derived from wash from the haul road is in or directly below the remains of Dam No. 3. No part of the remains of Dam No. 3 was burning immediately after the flood. "Smoke" reported issuing from the dam at the time of failure was probably warm moist air driven from the fractures by increasing hydraulic pressure. The explosion that occurred immediately following the failure was in the burning coal-waste bank No. 1 at the mouth of the hollow, about 2,600 feet downstream from Dam No. 3.

2.8.2 Dynamiting

A press story attributed the failure of the dam to company personnel dynamiting the top of the dam in an attempt to drain off the pool. Evidence cited included blasting wire and drill holes at the site. All wire seen at the site was telephone wire or used waste-blasting wire deposited in the banks along with other refuse from mines. The drill holes were in sandstone and were remnants of blasting operations during construction of the haul road several years ago.

Television pictures of the reported site of dynamiting were made at the canyon cut in coal-waste bank No. 1 and were about 2,600 feet downstream from the site of the actual dam failure at coal-waste dam No. 3. Wire at this point shown in the television film is telephone wire; blasting holes were those related to building the haul road.

2.8.3 Ditching

There is no conclusive evidence that alteration at the surface of Dam No. 3 was made by ditching or scraping, either during or immediately before the failure of Dam No. 3. At 4:30 a.m., February 26, Mr. Kent ordered Mr. Brady Elswick, front-end loader operator, to clear the ditch along the No. 5 mine road. The ditching was done on the haul road at the right abutment of Dam No. 2. The work was done to divert water from a side hollow and the haul road around Dam No. 2.

The pipes seen by Mr. Osborne and Mr. Gibson at 6:00 a.m. had been placed on the dam a week prior to the failure. There is no evidence to indicate that these pipes were being used to drain the impoundment.

Mr. Bays and Mr. Weiss, the bulldozer operators who were sent to the strip job for equipment at 6:30 a.m. by Mr. Kent did not return to the dam site until after the dam failure had occurred.

2.9 THE FLOOD

2.9.1 Flood Conditions in the Guyandotte River Basin

Precipitation occurring February 24-26 in the southwestern corner of West Virginia resulted in slightly higher than bankfull stages for most streams and in flows generally bearing recurrence intervals of 10 years or less. Peak flows for the storm of February 24-26, 1972, were not unusually high, except for sites on Buffalo Creek below the mouth of Middle Fork (Table 2-1).

High water on the Guyandotte River at Man, based on records of the gaging station located 500 feet upstream from the mouth of Buffalo Creek had peak stages of 18.65 feet on February 25 and 19.34 and 19.02 feet on February 26. The peak discharge for February 25 was 29,600 cfs, an 8-year flood, from drainage of the upper Guyandotte River only. The peak stage of 19.34 feet was a direct result of inflow from Buffalo Creek following the failure of the dam on Middle Fork (Figure 2-26), but the peak discharge of 31,600 cfs related to this stage may not be reliable due to variable backwater. The peak discharge of 30,700 cfs occurring at gage height 19.02 was the result of natural drainage primarily from the upper part of the Guyandotte River.

Peak flows, on the order of a 2-year flood, were produced on the North Fork above Middle Fork, on Buffalo Creek above Middle Fork, and on Right Fork at Accoville (Table 2-1). These are all streams lying within Buffalo Creek basin but outside the influence of the large discharge produced by failure of the Middle Fork dam. These peak flows suggest that yields of from 60-100 cfs per mile of drainage basin could have been anticipated on Buffalo Creek had the dam on Middle Fork not failed. For example, it is estimated that the peak flow for Buffalo Creek below Saunders would have been approximately 400 cfs (180,000 gpm) instead of the 50,000 cfs (22 million gpm) that was produced. A peak of this order of magnitude would also have been consistent with that produced by surrounding basins of the same size experiencing natural yields.

2.9.2 Previous Floods

Data given in Table 2-1 show that peak flows for February 1972 for streams in southwestern West Virginia were quite low in comparison with previous maximum floods that have been recorded. Except for Buffalo Creek, peak discharges for February 1972 at stations in the Guyandotte River basin were generally well below those experienced in March 1963.

2.9.3 The Flood on Buffalo Creek

At about 8:00 a.m. on February 26, following the failure of coal- waste Dam No. 3, 17.6 million cubic feet (132 million gal.) of impounded water and sludge were released into Buffalo Creek. Eyewitnesses reported that the contents of the dam were emptied into Buffalo Creek in 15 minutes or less. At the time of the dam failure, flow in Buffalo Creek was well below bankfull stage.

Indirect measurements were made on Buffalo Creek below Saunders, below Stowe, above Accoville and near Man to determine peak flows resulting from the release of water following the dam failure (Figure 1-2 and Table 2-1). At Buffalo Creek below Saunders, 4,500 feet downstream from the mouth of the Middle Fork, the peak flow was computed as 50,000 cfs (22 million gpm). Because this peak was not a natural occurrence, comparisons between it and other natural occurring flood peaks are not valid. However, it is interesting to note that, at this site, a flood of this magnitude would be approximately 40 times that of a naturally occurring 50-year flood.

Peak discharges were greatly reduced due to valley storage as the flood wave moved downstream. This effect is shown in Figure 2-15, where flood hydrographs were estimated on the basis of peak flow information obtained at indirect measuring sites and from flow duration information furnished by local residents. Attenuation due to valley storage reduced the peak flow to 13,000 cfs (5.8 million gpm) by the time the flood crest reached Stowe 6 miles downstream from the mouth of Middle Fork; although the total discharge past Stowe was slightly greater than the total flow past Saunders, the floodflow took more than three times longer to travel past Stowe. The same attenuating effect from valley storage stretched out the floodflow all the way down Buffalo Creek; the floodflow that took only 15 minutes to pass Saunders took 2 hours to pass Man. Despite the attenuation, peak flow at Stowe was still unusually high, approximately four times that of a naturally occurring 50-year flood.

The effect of valley storage was less pronounced above Accoville, 12 miles downstream from the mouth of Middle Fork, where the peak flow was determined as 8,800 cfs (3.9 million gpm). A peak flow of this magnitude, however, would still be approximately twice that of a naturally occurring 50-year flood. The peak flow at Man near the mouth of Buffalo Creek was estimated to be 7,500 cfs (3.4 million gpm), slightly greater than the 50-year flood.

2.9.4 Time of Travel of the Flood Wave

Estimates of time of travel of the flood peak were made based on information furnished by local residents. The flood wave passed through the Buffalo Creek valley in almost exactly 3 hours, reaching the mouth of Buffalo Creek at Man at 11:00 a.m. on February 26. The traveltime versus distance relation for the flood wave is shown in Figure 2-16.

Mean velocities are estimated at 20 feet per second from Saunders to Pardee, 15-20 feet per second below Pardee to Lorado, and diminishing to about 10 feet per second near Accoville and to 5 feet per second or less near Man.

2.9.5 Profiles

Profiles of the flood wave and of the streambed were obtained for the 17-mile reach of Buffalo Creek from the mouth of Middle Fork to Man, from a survey of high-water marks at many sites throughout the reach (Figure 2-17). The fall, or total drop in elevation, from Saunders to Man is approximately 750 feet. The slope of the flood profile ranges from an average of 96 feet per mile in the reach from Saunders to Pardee to 33 feet per mile in the reach from Accoville to Man.

2.9.6 Depth of Flow

The depth of flow in, the stream channel at points along Buffalo Creek can be estimated from Figure 2-17 by subtracting the bed elevation from the flood profile. The flood plain of Buffalo Creek ranges from 200 to 500 feet wide throughout the reach from Saunders to Man. Ground elevations on this flood plain can be determined by surveying to selected points on the flood plain from nearby bench marks. The depth of flooding on the flood plain can then be estimated by subtracting the ground elevation from the flood profile shown in Figure 2-17. At the time of the peak, the depth of flow on the flood plain was approximately 12-10 feet deep from Saunders to Lorado, 9-6 feet deep from Craneco to Latrobe, and 5-2 feet deep from Robinette to Kistler.

2.9.7 Scour and Deposition

An estimated 6 million cubic feet of material were transported by the flood water from the coal-waste banks in Middle Fork hollow and deposited downstream. Most of this material, consisting of coal waste, red dog, and slag, apparently was deposited in the reach from Saunders to Pardee. (The only significant signs of scours were also found in this reach, although there was evidence of scour at some bridge crossings farther downstream.) The streambanks and overflow plain from Saunders to Man were covered with a thin film of black sediment by the passage of the sludge-bearing water.

2.10 THE PITTSTON COMPANY

Prior to February 26, 1972, Buffalo Mining Company, a subsidiary of The Pittston Company, operated four underground mines, a strip mine, and two auger mines in the Buffalo Creek area near Saunders, West Virginia. All coal from the mines was processed through the No. 5 coal- preparation plant located on Buffalo Creek, about one-half mile north of Middle Fork. and the town of Saunders. A total of 350 men were employed by Buffalo Mining Company prior to the dam failure. Buffalo Mining Company presently operates three underground mines, a strip mine, and one auger mine in the area. A total of 310 men are now employed.

The Pittston Company acquired Buffalo Mining Company in June, 1970. At that time, according to Nicholas T. Camicia, President, The Pittston Company, Dam No. 3 was ". . . already under construction, or maybe fifty percent completed . . ." (Hearing Transcript, Vol. VI, p. 76). Prior to the acquisition, a survey of the Buffalo Mining Company property was made by Pittston Company, Coal Group, engineers. According to Mr. Camicia, the "assessment report" made no indication ". • • that there was any danger, or that anything was wrong with the impoundments ..."

Although Dam No. 3 was still under construction in June, 1970, The Pittston Company did not apply to the Public Service Commission of West Virginia for a permit to construct the dam, as required by Chapter 61, Article 3, Section 47, of the West Virginia Code. According to testimony by Mr. Camicia (Hearing Transcript, Vol. VI, p. 81), The Pittston Company as a legal entity had knowledge that such a law does exist. The record shows that in 1964, The Pittston Company had applied to the Public Service Commission of West Virginia for approval of an earth-fill dam to be constructed in Sardis District, Harrison County, West Virginia. [Note: The record also shows that other coal-mining companies in West Virginia have applied to the West Virginia Public Service Commission for approval of construction of coal-refuse dams. In August, 1971, Pocahontas Fuel Company applied for approval of the design, construction, and safety of a coal-refuse dam on Joe's Branch in Wyoming County. In February, 1972, United Pocahontas Coal Company applied for approval of the design, construction, and safety of a coal- refuse dam on Pinnacle Creek, also in Wyoming County. Approval from the West Virginia Public Service Commission for 19 earth-fill, one concrete and earth-fill, and two coal-refuse dams has been sought by several coal-mining companies in West Virginia.]

According to Mr. Camicia (Hearing Transcript, Vol. VI, p. 75), Buffalo Mining Company was responsible for maintaining the dams on Middle Fork and had ". . . full responsibility for consideration of the people who lived in this community (Buffalo Creek), as well as the people in the coal mines" (Hearing Transcript, Vol. VI, p. 76).

Mr. I. C. Spotte, President, Buffalo Mining Company, has stated that ". . . the Buffalo Mining organization, as such, operated the mines and preparation plants and all the other facilities and were responsible for the safety, the well-being, the profitability of the organization" (Hearing Transcript, Vol. IV, p. 64).

Mr. Ben Tudor, General Superintendent, Buffalo Mining Company, has outlined his personal responsibility as well as the company's responsibility by stating, "I would say I would be as much responsible for the safety of the dam as anyone" (Hearing Transcript, Vol. III, p. 136). [Also, according to his testimony (Vol. III, p. 124), Mr. Tudor inspected the dams on Middle Fork regularly ". . . at least once a day . . ."]

2.10.1 Engineering Staff and Capabilities

Mr. Dasovich and Mr. Tudor were the only registered professional engineers at the Buffalo Mining Company offices in Lorado. Both Mr. Dasovich and Mr. Tudor are registered mining engineers in the State of West Virginia. Mr. Dasovich was registered by test in 1954 (Registration No. 2881). Mr. Tudor is registered by test in the State of Illinois and has been registered in West Virginia through reciprocity with the State of Illinois (Registration No. 3173).

Mr. John Nagle, Engineer, Buffalo Mining Company, is "...in the process of being registered in the State now" (Vol. I, p. 32). A map of the No. 5 Mine submitted to the West Virginia Department of Mines and dated February 25, 1972, is signed by Mr. Dasovich and Mr. Nagle and stamped with Mr. Dasovich's seal.

Mr. Dasovich and Mr. Tudor were both working in an administrative capacity rather than an engineering capacity. According to his testimony, Mr. Dasovich spent less than five percent of his time dealing with problems outside of underground coal mining (Vol. V, p. 23). Mr. Tudor inspected the dams daily, "Normally we would drive out on the dam and look at it and make sure there are no cracks in it, and like that, like the compaction was doing a good job" (Vol. III, p. 125), but made no request from any source for acceptable specifications or plans for dams.

According to James E. Yates, Vice President, Engineering, The Pittston Company, the company's offices in Dante are staffed with 40 to 50 engineers whose primary function is in design work "for the design of structures, steel, plants, and so forth. We have really no soils or hydrology experts. We must go to outside firms for that type" (Vol. IV, p. 131). However, The Pittston Company did not solicit any outside help in regard to the construction of Dam No. 3. Also, according to Mr. Yates (Vol. IV, p. 133), The Pittston Company did not request nor require systematic inspections of the impoundments nor did The Pittston Company make ". . . an effort to send anyone to a special class on impoundments. . ."

According to Mr. I. C. Spotte, The Pittston Company did not make any inquiries as to how Dam No. 3 was built. "The bank was there. It was functioning properly, for the use it was intended, to clarify water. It appeared stable. We accepted it as such" (Vol. IV, p.- 66).

2.10.2 No. 5 Mine Coal-Preparation Plant

At the time of the flood, the No. 5 mine coal-preparation plant was operating two shifts a day and five to six days a week. It was processing over 5,000 tons of run-of-mine or raw coal a day, producing over 4,000 tons of clean coal and about 1,000 tons of refuse. This refuse was hauled to storage banks on Middle fork in 30-ton trucks.

Water consumption by the washing plant was approximately 500,000 gallons per day. The effluent from the preparation plant was pumped into the sedimentation pond behind Dam No. 3 at the rate of 500 gallons per minute for about 10 hours each day. The effluent contained 18.5 percent solid material. Approximately 21 tons of solid material per hour were deposited in the pond. This solid material had an ash content of approximately 28 percent.

2.10.3 New Goal-Preparation Plant Facilities

New water-clarification facilities utilizing a spiral classifier* and static thickener** (*See Section 9.0, GLOSSARY OF TERMS.) are being installed at the No. 5 preparation plant to avoid the continuous pumping of refuse slurry to the settling pond and to recover a marketable product that has heretofore been lost as refuse.

From the existing drag-tank pump, the refuse slurry will be diverted to a new spiral classifier where the larger sizes of solids in the slurry are allowed to settle to the bottom of the tank and be conveyed by means of an integral screw conveyor to discharge to a centrifugal dryer.

A fresh-water pump will be used to provide make-up water to replace that which is lost in the process. The settling pond will be used for emergency only in case of equipment malfunction, overflows, etc.

According to testimony from company officials and coal-preparation experts, if such a clarification system had been installed in the No. 5 preparation facilities, it would not have been necessary to construct the large filtration dams on Middle Fork.

3.0 LEGAL

3.1 APPLICABLE WEST VIRGINIA STATUTOJIY PROVISIONS

After a review of the State's regulatory powers regarding dams, it is apparent that there are deficiencies due to the general vagueness of the statutory language and due to the lack of enforcement powers with regard to continual surveillance of maintenance of such structures within the alleged purview of the statutes.

3.1.1 Public Service Commission

The Public Service Commission has authority over dams where they are either 15 feet in height or 10 feet in height and water covering 10 or more acres by virtue of Section 47, Article 3, Chapter 61, of the West Virginia Code of 1931, as amended. The pertinent provision of this section is as follows:

. . . No person shall construct any dam or other obstruction more than fifteen feet in height across any stream or watercourse unless the design and proposed construction shall have been declared to be safe by an order entered by the Public Service Commission after full investigation; Provided, that no dam or other obstruction more than ten feet in height shall be constructed across any stream or watercourse if such dam or other obstruction would create a body of water covering ten or more acres, unless the design and proposed construction of such dam or other obstruction shall have been declared to be safe by an order entered by the Public Service Commission after full investigation...

This statute makes filing obligatory on the part of any person who wishes to construct a dam or other obstruction across any watercourse. It should be noted that this requirement appears in the Criminal Code relating to claims against property and is not in Chapter 24, which creates and defines duties of the Public Service Commission. It appears that no action is required on behalf of the Public Service Commission until the application is received from the person constructing a dam or other obstruction as defined by the statute. The only mandate to the Public Service Commission is that, if such an application is submitted, the design and construction of the proposed dam or obstruction be evaluated for safety only. If the proposed structure is deemed safe after full investigation, an order to that effect must be entered by the Public Service Commission. The statute makes no provisions to assure compliance with the proposed plans subsequent to submission and approval, nor are there provisions that would allow for the continual monitoring and surveillance of structures after their completion.

Additionally, the statute does not grant the Public Service Commission authority to issue rules or regulations for the safety of such structures; thus, it appears that each application is to be considered on an ad hoc basis. The Public Service Commission has by its own initiative set guidelines for the evaluation of such proposed structures.

in 1952, at the request of Mr. N. F. Wright, Jr., Secretary of the Public Service Commission, the Attorney General issued an opinion that interpreted the pertinent section of the statute with regard to the jurisdiction of the Public Service Commission in terms of continual inspection as to safety subsequent to approval of the initial application. The Attorney General opined as follows t

We are unable to find anything in the language of the statute which justifies an inference that there was legislative intent for the Commission to exercise a continuing supervision over dams once construction is completed. It is perhaps possible for the Commission to inspect the dan to see that it is being, or has been, constructed in accordance with the order. In fact, it would seem proper to condition the order subject to such approval of the Commission. 42 Am Jur, Public Administrative Law, Sec. 53. However, we believe that there is no authority for the Commission to go further in an attempt to exercise continual jurisdiction over such dams. 44 Op's Atty. Gen. 330

This opinion basically evolves from the distinction between the words construction and maintenance. Applicable case law and common usage argue against the words being employed as synonyms for one another. The West Virginia State Legislature apparently recognizes this distinction since that part of the statute delegating authority to the Public Service Commission with respect to dams omitted the word maintenance while in a subsequent paragraph concerning the passage of fish, the Legislature employed the words, "...no person shall maintain or construct any dam or other structure in any stream or watercourse, which shall in any way prevent or obstruct the free and easy passage of fish..."

Another portion of the same Attorney General's opinion pertinent to this inquiry reads as follows:

However, whenever a dam is enlarged or extended so as to make it more than ten feet in height, or if already in excess of that height, to make it a greater height, we believe it comes within the scope of the statute, and such construction is subject to the approval of the Commission.

Consequently, one may conclude that any additions to the height of any dam or other obstruction would require approval of the Public Service Commission. Thus, the Public Service Commission might be able to exercise continuing jurisdiction if, and only if, the dam were being continually enlarged or expanded so as to make it greater in height.

The penal provision of this section reads as follows:

Any person who shall violate any of the provisions of this section shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not exceeding one thousand dollars, or imprisoned in the county jail not exceeding one year, or both fined and imprisoned, and, whether conviction be had under this section or not, such violation shall be deemed a nuisance, which may be abated at the suit of any citizen or taxpayer, the county court of the county, or, as to fish ladders, at the suit of the natural resources commission, and, if the same endangers county roads, the county court may abate such nuisance peaceably without such suit.

Since the Public Service Commission does not have prosecution powers, its only recourse upon notice of any violation would be to request prosecution by the county prosecutor in such county where a violation occurred. It should be noted that any citizen or taxpayer or the county court could have brought an action to abate the nuisance (in this case the impoundment on Middle Fork) since violation of the statute is a nuisance per se.

The controversy as to whether the impoundment known as Dam No. 3 on Middle Fork was technically considered a dam is a moot question since the structure falls within the purview of the statute which reads in part as follows:

. . . no obstruction more than fifteen feet in height across any stream or watercourse . . .

3.1.2 Department of Natural Resources

Prior to March 11, 1972, the Department of Natural Resources had no direct authority to regulate the design, construction or maintenance of dams. However, the Division of Water Resources within the Department of Natural Resources indirectly had powers to regulate dams when such structure posed a threat to the waters of the State. Subsection a, Section 3, Article 5a, Chapter 20, requires the filing of information regarding entities polluting or who may pollute the waters of the State and reads in part as follows:

(a) in addition to all other powers and duties of the chief of the department's division of water resources, as prescribed in this article or elsewhere by law, the chief, under the supervision of the director, shall have and may exercise the following powers and authority and shall perform the following duties;

(12) To require any and all persons directly or indirectly discharging, depositing or disposing of treated or untreated sewage, industrial wastes, or other wastes, or the effluent therefrom, into or near any waters of the State or into any underground strata, and any and all persons operating an establishment which produces or which may produce or from which escapes, releases or emanates or may escape, release or emanate treated or untreated sewage, industrial wastes or other wastes or the effluent therefrom, into or near any waters of the State or into any underground strata, to file with the division of water resources such information as the chief may require in a form or manner prescribed by him for such purpose, including, but not limited to, data as to the kind, characteristics, amount and rate of flow of any such discharge, deposit, escape, release or disposition. (Emphasis added.)

Additionally and more specifically, it is mandatory that any person engaging in certain activities have a permit as required in Subsection a, Section 5, Article 5a. Subsection a, Section 5, Article 5a, Chapter 20, states in part as follows:

(a) It shall be unlawful for any person, unless he holds a permit therefor from the department, which is in full force and effect, to:

(6) Open, reopen, operate or abandon any mine, quarry or preparation plant, or dispose of any refuse or industrial wastes or other wastes from any such mine or quarry or preparation plant; Provided, that the department's permit shall only be required wherever the aforementioned activities cause, may cause or might reasonably be expected to cause a discharge into or pollution of waters of the State; ...(Emphasis added.)

The permits issued pursuant to the aforementioned sections are issued and regulated in accordance with rules and regulations promulgated by the Water Resources Board. Said Board is charged with preventing, controlling, and abating pollution and establishing standards of quality for the waters of the State. The division has the power to employ inspectors to enforce the rules and regulations and policies of the Water Resources Board.

By virtue of another indirect source, the Department of Natural Resources has authority to abate any nuisance which evolves from a violation of Section 47, Article 3, Chapter 61. Said section states that no person shall construct or maintain any dam or other structure in any stream or watercourse that prevents the free and easy passage of fish to provide a suitable fish ladder, way, or flume unless the Director of the Department of Natural Resources provides an exemption from such duties in writing. Persons who violate the provisions of this section shall be guilty of a misdemeanor and shall be fined not exceeding $1000 or imprisoned in the county jail not exceeding one year, or both fined and imprisoned, in addition, such violation shall constitute a nuisance that may be abated by suit of the Department of Natural Resources.

Following the disaster on Buffalo Creek, the Legislature gave the Department of Natural Resources authority over refuse piles generally, and particularly refuse piles that impound water or may impound water. This authority was granted by virtue of senate Bill 404, known as the Coal Refuse Disposal Control Act. Section 4 of said act requires the Director of the Department of Natural Resources to conduct surveys of disposal piles and to make findings based on competent engineering evaluations and opinions concerning the stability and safety of coal-refuse piles that may cause water impoundments or otherwise pose a hazard to human life. Further, the section provides that: ". . . The authority, powers and duties of the Director shall not be limited by any time period stated herein but shall be on a continuing basis."

Section 5 of the aforementioned Act gives the director the power to take all remedial action as may be necessary or expedient to secure any coal-refuse disposal pile that constitutes imminent danger to human life.

Section 6 of said Act reads, in part, as follows: "When the director makes a finding of a dangerous condition not imminently dangerous with respect to any new coal refuse disposal pile created hereafter or any part of an existing coal refuse disposal pile which is presently being operated, then the director shall order the opera- tor to take all remedial action at his own expense, as may be necessary or expedient to prevent or correct the condition, and it shall be the duty of such operator to take such action..."

As the law stands now, it appears that the Department of Natural Resources has the duty to inspect structures impounding, or ones that might impound, water when such structures are composed of coal refuse. The inspections are to determine the safety and structural stability of such structures. The director is given wide remedial powers; however, there appears to be no authority for him to act in a prospective manner since there are no requirements for filing prior to construction of a refuse pile or water impoundment.

3.1.3 Department of Mines

The Department of Mines is given no powers or duties that authorize it to regulate water impoundments of any size or any nature located on mining property. Since the Department of Mines does not have authority to issue rules and regulations pursuant to its statutory authority, it cannot even indirectly assume the power to regulate such impoundments. The only reference to bodies of water is in Section I, Article 2, Chapter 22, in regard to the mandatory submission of an accurate map of a mine and mine surface. Subsections 21 and 22 require that the map show water pools above and the location of the principal streams and bodies of water on the surface of a mine area. Failure to file such accurate map is a misdemeanor and upon conviction provides that a person shall be fined not less than $500 nor more than $5,000.

3.1.4 Engineering Registration

By virtue of Article 13, Chapter 30, the Weal Virginia Code of 1931, as amended, requires the registration of professional engineers practicing within the state. Section 2 of the aforementioned article defines the practice of professional engineering and reads in part as follows:

The practice of professional engineering within the meaning and intent of this article includes any professional service, such as consultation, investigation, evaluation, planning, design, or responsible supervision of construction or operation in connection with any public or private utilities, structures, buildings, machines, equipment, processes, work, or projects, wherein the public welfare, or the safeguarding of life, health or property is concerned or involved, when such professional service requires the application of engineering principles and data.

In addition, the Legislature has granted the State Board of Registration for Professional Engineers, as well as other registration boards, the authority to promulgate and issue rules and regulations (30-1-4). Although the statute concerning the registration of engineers in the State of West Virginia is silent as to the areas in which a registered engineer may practice, the rules and regulations duly promulgated more closely define these areas. Regulation 2.11 reads as follows:

2.11 Civil Engineer: Civil engineering is the most diverse branch of engineering. It includes all engineers engaged in the planning, designing, construction, engineering economics and maintenance of bridges, buildings, waterways, dams railroads, airport terminals, pipe lines, highways, sanitary systems, foundations, hydro electric installations, irrigation systems and similar systems and structures of modern civilization. Recently civil engineering has been broadened to include community planning and in addition to traditional surveying and mapping has encompassed photogrammetric methods.

This regulation appears, to authorize only those men who are granted registration to practice civil engineering the right to engage in the planning, designing, construction and maintenance of dams. The regulations defining other fields of engineering practice do not mention specifically or indirectly the word dam.

Section 5.02 of the regulations reads in part as follows:

5.02 The board may suspend for a period not to exceed two years or may revoke the certificate, license, or registration of any professional engineer registered hereunder whom it finds guilty of:

1. Unprofessional conduct in the practice of professional engineering which shall include, but not be limited to, the following acts or omissions to act:

. . . (i) Practicing or offering to practice in a field of engineering in which he has. not been classified by registration unless he is able by reaaon of education and experience to demonstrate competency therein.

Under the aforementioned regulation, the State Board of Registration for Professional Engineers has adequate authority to censure any engineer appropriately licensed by the State who violates regulations duly authorized and promulgated by the Board.

3.2 APPLICABLE FEDERAL STATUTORY PROVISIONS

None of the Federal statutes surveyed gives sufficient authority to any Federal agency to regulate dams in regard to the maintenance and safety of such structures.

3.2.1 Soil Conservation and Domestic Allotment Act

The Soil Conservation and Domestic Allotment Act authorizes the U. S. Soil Conservation Service to provide technical assistance to farmers and others in order to more efficiently utilize their land and water resources. This Act provides that the Service shall provide engineering for the design and construction for any dam or reservoir needed to fulfill these objectives. In addition, the Service provides instruction for the proper maintenance and operation of such structure, but has no enforcement authority.

3.2.2 Department of Agriculture

The Secretary of Agriculture, under the Watershed Protection and Flood Prevention Act of 1954, is authorized to cooperate with states or their political subdivisions in the preparation and implementation of plans for dams to prevent damage due to flood water. Again this agency has no regulatory or enforcement powers even though the plans for such projects must be approved by the Secretary of Agriculture.

3.2.3 Corps of Engineers

The Corps of Engineers has the responsibility for the protection and preservation of all navigable waters in the United States under the River and Harbor Act of 1899. This Act requires that plans for any dam in any navigable river or navigable waters in the United States must be submitted and approved by the Chief of Engineers and by the Secretary of War. in addition. Congressional consent is needed for any such structure. If any such navigable stream or navigable waters lie wholly within any one state, plans must be submitted to and approved by the Chief of Engineers and by the Secretary of War. Again this does not provide for any regulatory enforcement during or subsequent to construction.

On July 25, 1972, Congress passed H.R. 15951 sponsored by Representative John A. Blatnick (D-Minn.). This bill, which has recently been signed by the President, would authorize the Secretary of the Army acting through the Chief of Engineers to carry out a national program of inspection