The Buffalo Creek Disaster - Los Angeles County Bar Association

Stern describes the practical hurdles he
encountered during the settlement discussions.
He represented numerous plaintiffs,
and he knew that Pittston’s counsel would
insist that he have authority to negotiate a settlement
on behalf of all of his clients.
Although the townspeople gave him authority
to settle, ethical considerations precluded
him from entering into a binding settlement
on behalf of multiple plaintiffs without first
telling them how much each plaintiff would
receive. Stern resolved the problem by obtaining
permission to conduct the discussions
and provide recommendations for a split.
With such close attention to detail about
the legal process, it is not surprising that
often the book has been required reading
for law students. However, The Buffalo Creek
Disaster goes well beyond providing some
valuable lessons about the litigation process.
The book shows how our court system can
be a great equalizer, placing large multimillion-dollar
corporations on even footing with
people who have no economic or political
clout.
Through the litigation and more specifically
the discovery process, Pittston became
answerable to the people of the town. Depositions
of key Pittston personnel revealed that
Pittston knew that it was exposing the people
to significant risk of the flood. With the
revelation of this information, Pittston faced
true exposure to punitive damages and, consequently,
power shifted to the townspeople.
Thereafter, Pittston settled the claims and
finally compensated the victims for their loss.
Beyond that, the settlement served as a check
on Pittston, deterring it from constructing
another faulty dam. The threat of this type
of litigation forces large corporations like
Pittston to rethink business decisions that
place the public in harm’s way.
Yet, even after we read The Buffalo Creek
Disaster and celebrate the triumph of the
townspeople in the wake of the flood that
destroyed their town over 35 years ago, we
are faced with news of another, similar failure.
In December 2008, the Tennessee Valley
Authority’s Kingston Fossil Plant in Harriman,
Tennessee, experienced a failure of a
dike wall. The broken earthen wall released
approximately 1 billion gallons of slurried ash
from a coal-ash containment pond.
Fortunately, no one was killed, but the spill
destroyed homes and continues to pose environmental
threats as the result of the release
of barium, lead, manganese, and arsenic
compounds. Cenospheres, which are spherical
particles of silica, polluted the local lake.
The Tennessee Valley Authority has reported
that the cenospheres can cause watering of the
eyes, sneezing, or coughing but do not pose
a health threat. At least it has not yet attributed
the spill to an act of God. ■
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