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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF MISSISSIPPI ABERDEEN DIVISION KMART CORPORATION, Plaintiff CIV. ACT. NO. 1:11-CV-103-GHD-DAS versus THE KROGER CO., et al. Defendants KMART’S RESPONSE TO KANSAS CITY SOUTHERN RAILWAY COMPANY’S MOTION FOR SUMMARY JUDGMENT Plaintiff, Kmart Corporation, submits this Response to Kansas City Southern Railway Company’s Motion for Summary Judgment. KCSR’s Motion should be denied because material issues of fact exist regarding whether KCSR breached a duty owed to Kmart when it failed to maintain its railroad underpass at Elam Creek in Corinth, Mississippi and whether that breach contributed to the damages incurred by Kmart during a May 2, 2010 flood event. In support of its Motion, Kmart submits the following: •
Exhibit “A” - Initial Flooding Evaluation of John R. Krewson, dated September 20, 2012;
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Exhibit “B” - Photograph, Bates labeled Corinth00106;
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Exhibit “C” - First Amended Flooding Evaluation of John R. Krewson, dated July 23, 2013;
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Exhibit “D” - Report of Mendrop Engineering Resources;
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Exhibit “E” - Excerpts to Deposition of Kelly Blake Mendrop;
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Exhibit “F” - Excerpts to Deposition of John R. Krewson;
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•
Exhibit “G” - Excerpts to Deposition of David Huwe;
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Exhibit “H” - Construction drawings;
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Exhibit “I” - Bridge, Phillips, Elam Drainage District News, dated September 26, 2010; and
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Exhibit “J” - Excerpts to Deposition of Michael Schmidt.
Accordingly, Kmart respectfully requests that this Court deny KCSR’s Motion for Summary Judgment. This the 30th day of October, 2013. /s/ Ryan O. Luminais ____________________________________ JAMES M. GARNER (La. Bar. No. 19589) JOHN T. BALHOFF, II (La. Bar. No. 24288) RYAN O. LUMINAIS (Miss. Bar. No. 101871) SHER GARNER CAHILL RICHTER KLEIN & HILBERT, L.L.C. 909 Poydras Street, Twenty-eighth Floor New Orleans, Louisiana 70112 Telephone: (504) 299-2100 Facsimile: (504) 299-2300 ATTORNEYS FOR KMART CORPORATION
CERTIFICATE OF SERVICE I hereby certify that a copy of the above and foregoing has been served on all known counsel of record with the Clerk of Court using the CM/ECF system which will automatically send-email notification to all known counsel of record, this 30th day of October, 2013. /s/ Ryan O. Luminais _________________________________________ RYAN O. LUMINAIS
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EXHIBIT
A
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EXHIBIT
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Amended Flooding Evaluation
Kmart # 4883 118 Highway 72 West Corinth, Mississippi 38834
Prepared For:
0112
Mr. John T. Balhoff, II Sher Garner Cahill Richter Klein & Hilbert, L.L.C. 909 Poydras Street, Twenty-eighth Floor New Orleans, Louisiana 70112
EFI Global Job No: 98340-08794
July 23, 2013
Prepared By: EFI Global, Inc. 3039 Premiere Parkway Suite 700 Duluth, GA 30097
EXHIBIT
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3039 Premiere Parkway Suite 700 Duluth, GA 30097 Tel: 770-925-9600 Tel: 800-245-9601 Fax: 770-925-9649 www.efiglobal.com
July 23, 2013 Mr. John T. Balhoff, II Sher Garner Cahill Richter Klein & Hilbert, L.L.C. 909 Poydras Street, Twenty-eighth Floor New Orleans, Louisiana 70112
Re:
Amended Flooding Evaluation Kmart # 4883 118 Highway 72 West Corinth, Mississippi 38834 EFI Global JN: 98340-08794
Dear Mr. Balhoff: Please find our amended report related to the flooding of Kmart store # 4883 at 118 Highway 72 West, in Corinth, Mississippi. This report re-calculates the HEC-RAS results shown in the original report of September 20, 2012. The HEC-RAS results used in the September 20, 2012 report were based on an inadvertent flow data discrepancy in the HEC-RAS model. The revised HEC-RAS model herein is expanded to review additional flooding scenarios at the site. This amendment also discusses and utilizes information concerning the Kmart Store # 4883 site that was not available for review at the time the September 20, 2012 report was submitted. The additional information includes the original construction plans for the site, debris at the railroad bridge, and the LOMR, LOMA, and Elevation Certificates approved at the site. For the purposes of this report, the front of Kmart store # 4883, hereinafter also referred to as Kmart, will be the side of the store facing the intersection of Highway 72 West and South Fulton Drive. Directions right and left will be based on a viewer facing Kmart from this intersection. Using this convention, the right side of the store faces South Fulton Drive, the left side of the store faces Highway 72 West, and the rear of the store faces State Street.
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Kmart # 4883 Amended EFI No.: 98340-08794 July 23, 2013
Background: The Kmart store is a large retail store located in a shopping center at the corner of Highway 72 West and South Fulton Drive in Corinth, Mississippi (Figure 1). The building housing the Kmart store has slab on grade, open plan, warehouse type construction with at-grade parking abutting the store on the front. Paved driveways are on the left side and rear of the store. The building housing Kmart also houses a Kroger Grocery store as a continuation of the building to the right of the Kmart. Both the Kmart and the Kroger stores were constructed in 1992 as a part of the overall development of the retail center. The two stores have the same floor elevation and share parking. The overall Kmart-Kroger retail center is a 16.29 acre tract located in a low area adjacent to Elam Creek, a large creek to the right of South Fulton Drive flowing north to south towards Highway 72 West. Parking for the Kmart and Kroger stores is at grade. Storm water runoff from the parking lot in front of the stores is collected in drop inlets and carried across South Fulton Drive in an underground pipe system to an existing detention facility located to the right of the site between South Fulton Drive and Elam Creek. Grades on the site are flat. Roof drainage for the Kmart and Kroger stores is provided by gutters and downspouts on the rear of the store buildings. The downspouts discharge onto splash blocks at grade with the asphalt pavements behind the stores. Runoff from pavement behind the stores drains away from the stores across the paving to the rear curb. The runoff is collected and discharged by several flumes through the curb into an existing ditch draining left to right parallel to the curb behind the buildings. Flow in the ditch is collected, along with runoff from the large grassed area behind the site, into a headwall for a 60 inch outfall storm drain. The 60 inch headwall is located approximately between the Kroger and the Kmart stores, behind the rear curb of the parking lot behind the stores. The 60 inch outfall pipe runs from the headwall back towards the building to a drop inlet in the pavement behind the Kroger store. From this inlet, the pipe runs to the right behind the Kroger store through a series of drop inlets and then across South Fulton Drive. The location of the outfall headwall for the 60 inch pipe once it crosses South Fulton Drive could not be determined. Based on the location of the existing buildings to the right of South Fulton Drive and an inspection of Elam Creek in the area, it is believed the pipe turns and runs parallel to South Fulton Drive toward Highway 72 West and eventually discharges into the existing detention facility noted above.
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Kmart # 4883 Amended EFI No.: 98340-08794 July 23, 2013
Flooding Event: According to weather records on WeatherWarehouse.com, rain began falling in the Corinth area during the late evening of May 1, and the early morning of May 2, 2010. By 5:00 a.m., the records for Corinth show that 5.68 inches of rain had fallen. As the morning progressed, water began rising rapidly around the Kmart. According to the store manager, Mr. Matt Hausmann, water was building up and flowing along the rear of the building, putting stress on the rear doors of the store. Eventually, landscape timbers stored on site struck the doors with enough force to break open the doors, lodge in the opening, and allow water to flood into the store. The quantity of water overwhelmed the staff’s ability to control it. According to Mr. Hausmann, the water in the parking lot around the building was measured at a depth of 22 inches by City of Corinth employees. Photographs taken in the Kmart store show a water depth of approximately 1.5 feet. Mr. Hausmann stated that there was a similar depth of water in both the Kmart and the Kroger store. The water caused considerable damage to the buildings and the inventory of the both the Kmart and Kroger stores. The flooding in 2010 is very similar to flooding events that occurred on October 13, 2001 and November 18, 2001 as outlined in a report prepared by the engineering firm of Reaves Sweeney Marcom of Memphis, Tenn. Weather Data: The records for the area found on WeatherWarehouse.com show a rainfall event occurring overnight and during the morning of May 2, 2010 for the northern Mississippi and western Tennessee areas. Although hourly records for the area were not available, a review of the daily recording times and the pattern of rainfall distribution on area weather stations show that between 6 and 13 inches of rainfall fell during the period prior to 8:00 a.m., with the higher rainfall events occurring north of Corinth with Corinth being approximately on the southern extent of the heavy rainfall. Weather stations 10 or more miles south of Corinth and the Kmart site show relatively light rainfall accumulation, with the amount of rainfall recorded increasing with distance north of Corinth. Because Elam Creek, the creek that flooded the site, heads up approximately 6 miles north of the site and flows south to the site, the pattern of increased rainfall amounts north of the site increased the flooding impact on the Kmart site. Based on NOAA Technical Paper 40 for the Corinth area, the 24 hour 100 year rainfall event is 7.6 inches. Based on the weather records, it appears that the storm of May 2, 2010 may have approached the 100 year rainfall amount.
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Kmart # 4883 Amended EFI No.: 98340-08794 July 23, 2013
FEMA Flooding Data: The current FEMA Firm Panel for the site, panel 28003C0067 (Figure 3), shows that the majority of the site area, including all of the Kmart and the Kroger building, is located in the designated flood limits of Elam Creek. Elam Creek is large tributary creek having an upstream drainage area of over 6 square miles draining to the site of the Kmart building. At the store site, the creek has a large, well developed flood zone designated on the FIRM panel as an AE zone. AE zones are studied zones having established base flood elevations. The Firm Panel also shows an area along both banks of the creek that is designated as the regulatory floodway for the creek. According to the FIRM panel, approximately one half of the Kroger store is located in both the floodplain and also in the area FEMA has designated as being the regulatory floodway. The Kmart store is located in the floodplain only. According to a Letter of Map Revision issued for the site in 2005, the 100 year flood elevation for the building is 432.4. An Elevation Certificate for the site prepared on November 11, 2001 places the finished floor elevation of the building at 433.0, 0.6 feet above the elevation of the FEMA 100 year flood elevation. Based on an as-built survey prepared for the site as a part of this report, the exterior grades along the perimeter of the building vary from 431.8 and 432.2, meaning the lowest adjacent grades around the building are below the flood elevation. A review of the FEMA historic FIRM records determined that the flood elevation of Elam Creek is unchanged on the current FIRM from the 100 year flood elevations at the time of construction of the building. Typically, standard design and permitting practice require building floor elevations in flood prone areas, especially in designated flood areas to be at least 3.0 feet above the 100 year flooding elevation. In the case of the Kmart and the Kroger, this would place the floor elevations at 435.4, 2.4 feet higher than the actual floor elevation. Had the building been constructed with a floor elevation of 435.4, flooding would not have occurred during the storm of 2010. The review of the elevation of the building relative to the flood elevation would typically have been the responsibility of the City of Corinth building authorities. The location of the Kroger in the floodway is a concern. As noted, approximately one half of the Kroger was built in the floodway for Elam Creek. A review of aerial photography and the current FIRM for the site shows that a number of other buildings were also built in the floodway. According to records I have examined, the floodway shown on current FIRM is unchanged from the floodway shown on the prior FIRM panel, prior to the construction of the building. FEMA’s 2009 Flood Insurance Study for Alcorn County and Incorporated Areas, states:
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“Encroachment on floodplains, such as structures and fill, reduces the flood carrying capacity, increases the flood heights and velocities, and increases flood hazards in areas beyond the encroachment itself. One aspect of floodplain management involves balancing the economic gain from floodplain development against the resulting increase in flood hazard. For purposes of the NFIP, a floodway is used as a tool to assist local communities in this aspect of floodplain management. Under this concept, the area of the 1-percent-annual-chance floodplain is divided into a floodway and a floodway fringe. The floodway is the channel of a stream plus any adjacent floodplain areas that must be kept free of encroachment so that the 1percent-annual-chance flood can be carried without substantial increases in flood heights. Minimum Federal standards limit such increases to 1.0 foot, provided that hazardous velocities are not produced. The floodways in this study are presented to local agencies as minimum standards that can be adopted directly or can be used as a basis for additional floodway studies.” Simply put, floodwaters must have an open, unobstructed flowing pathway along a creek. If earth fill or buildings or other structures are built in the flow pathway floodwaters rise and move faster and cause greater damage. When FEMA prepares their maps, they calculate what a reasonable flow pathway should be and show it as the “Floodway” on their maps. It is the responsibility of the cities and counties that issue building permits to enforce the restriction and make sure that the floodway is not blocked. The difference between the areas on the FEMA maps called the “Floodway” and the areas called the “Floodplain” is that nothing can be built in the “Floodway”, while careful construction is allowed in the “Floodplain” areas. The Kmart store is built entirely in the “Floodplain.” Approximately one half of the Kroger store is built in the “Floodway”, obstructing the flow of floodwater down the creek. The construction of the Kroger and other structures in the known floodway of Elam Creek increases the flood heights and potential for flooding, as well as for increased velocities, both of the factors involved in the flooding of the Kmart store. It is not known what regularity review was in place at the time the Kroger and other buildings were constructed in the floodway, but as the above quote from the Flood Insurance Study states, it is the responsibility of the local governing authority to control and prevent construction in the floodway. According to the August 30, 2010 volume of the “Federal Register”, Corinth, Mississippi, and Alcorn County, Mississippi were among the jurisdictions subject to suspension of community eligibility under the National Flood Insurance Program (NFIP) for non-compliance with the floodplain management requirements of the program. A review of the “Existing Conditions Plan” sheet C-2 dated 03/09/1992 from the original construction plans for the site prepared by Prime Engineering found the
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Kmart # 4883 Amended EFI No.: 98340-08794 July 23, 2013
elevation and location of the floodplain, and the location of the floodway to be substantially different from the floodplain and floodway shown on the FEMA FIRM panel for the area at the time. The floodway on the plans is shown south of Fulton Drive. The floodplain elevation on the plan sheet is approximately 430.8 which is 1.6 feet below the FEMA FIRM flood elevation shown on 1981 FIRM in force at the time. The derivation of the floodplain and floodway data shown on the plans is unknown. Although the Kroger and other structures along Elam Creek were constructed in the floodway without restriction, a review of FEMA’s records found that a “Letter of Map Revision” or LOMR was issued by FEMA in November 18, 2005, removing the Kroger property from the floodway due to “Inadvertent Inclusion in the Floodway 1”. The records do not indicate how the LOMR originated, or what studies, review or public notice was given prior to issuance. FEMA regulations require a flood study be done to determine the impact of the encroachment on flood elevations and velocities. The studies are submitted to FEMA for review and approval. No record was found of such a study. Issuance also requires that other affected property owners along the creek be notified, and public notice be made. No record of this was found. Once the studies and public notice are complete, the local governing and review agency responsible for flood management and oversight makes a final review of the LOMR and recommends approval. No record of this was found. Prior to the issuance of the FEMA’s Letter of Map Revision (LOMR) in 2005, other prior efforts had been made regarding the location of the buildings in the floodplain and floodway. Also in 2005, a Letter of Map Amendment (LOMA) was issued for the site. An Elevation Certificate was issued by FEMA in 2001. Note: The issuance of the LOMR, LOMA, and Elevation Certificate would have no impact on the physical presence of the buildings in the floodway or floodplain, or on the potential for flooding in any given flood event. These instruments would serve to reduce the cost of flood insurance for the buildings. The buildings are still shown in the floodplain and the floodway on the 2010 FEMA FIRM map for the site. Along with the placement of the Kroger and other structures in the regulatory floodway, several other conditions that would increase the flood elevations on the site were noted along the creek and in the floodplain at the time of the initial inspection:
Southeast of the Kmart near Highway 72, at the point where Kansas Southern Railroad’s north-south railroad line crosses Elam Creek on a timber bridge, a considerable debris field was noted upstream of the bridge. The debris blocked approximately the lower quarter of the bridge opening. Mr. David Huwe, the Director of Community Development and Planning for the City of Corinth stated during an interview in his office that the railroad had a poor
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record of maintenance and that the debris at the railroad bridge had been an ongoing problem for some time prior to the flood event. A picture of the flooded railroad bridge not available at the time of our initial report shows the bridge to be completely underwater. In the picture, there is no debris field floating upstream of the bridge. For the debris found behind the bridge at the time of our inspection to have resulted from debris floating downstream during the storm, there would have be a considerable amount of floating debris trapped behind the bridge when the water level dropped. The lack of a floating debris field in the picture indicates that the debris found behind the bridge after the flood were present prior to the flooding. Since they did not rise and float off during the flood, they apparently were present for a long enough time to become embedded behind the bridge. Pictures taken during our initial investigation (Figure19 thru 21) show a debris field upstream of the ridge on the floor of the creek. It was noted during the field survey done in August, 2010, approximately 3 months after the initial inspection, that the debris field had been removed. It is not known who cleaned up the debris. Pictures taken April 28, 2011 by others show another, larger debris field upstream of the bridge.
A bridge for an abandoned railroad spur crossing Elam Creek remains in place with narrowly spaced abutments obstructing the creek channel.
The creek channel was badly overgrown with vegetation and poorly maintained. Near the spur railroad bridge noted above, utility and sanitary sewer pipes crossing the channel were apparently abandoned in place, obstructing the channel.
The approximately 4.5 acre grassed field immediately behind the Kmart and Kroger building was originally a number of feet lower in elevation. According to Mr. Huwe with the City of Corinth, the city filled the area over time with excess earth material from various projects around the city. Evidence that dumping of excess fill was still underway was found at the time of the initial inspection of the area (Figure 10). Filling the area reduced the flood storage and flood protection for the Kmart and Kroger building.
The report on the 2001 flooding by Reaves Sweeney Marcom noted above discussed the Elam Creek channel blockage, overgrown channel, and the railroad crossing and utility line impacts on the flooding.
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HEC-RAS Flood Studies: To determine the impact of the Kroger encroachment and general conditions of the flood hazard at the time of the May 2, 2010 flood, we prepared a preliminary HECRAS evaluation for the site using as-built survey data and the flows for the area listed in FEMA’s 2009 Flood Insurance Study. As noted there was a discrepancy in this preliminary initial report. Conflicting flow data was used in preparing the model. This conflict resulted in a conclusion in the report that placement of the Kroger store in the floodway caused a rise in the flood of 1.0 feet. The original study also compared the overgrown existing Elam creek channel with a theoretical well maintained channel and concluded that there would be a 2.0 foot drop in the water surface if the creek channel were well maintained. For this amendment, the HEC-RAS flow data was revised and the flow data discrepancy was corrected. A new HEC-RAS model was prepared. In this new model three profiles were run. The initial profile was for the site assuming the Kmart and Kroger building were never built and the grades were at the surveyed elevation at the exterior of the building. This profile was used as a benchmark model. A second profile was run based on an unobstructed floodway with a channel having only light brush and weeds. This profile produced 100 year flood elevations on the site comparable with those shown in the 2009 Flood Insurance Study, and on the FEMA FIRM panel. The second profile was run with the Kroger building only, the Kmart building alone, and the combined Kmart- Kroger building. The model of the second profile with only the Kroger building determined that a rise of 1.10 feet occurred relative to the benchmark, slightly higher than the rise predicted by FEMA’s floodway calculation. The model of the Kmart building found a rise of 1.0 feet relative to the benchmark. The model of the Kmart-Kroger building also found a rise of 0.9 relative to the benchmark. Although the above calculations appear to indicate that the addition of the Kroger building to the Kmart building had no impact on the Kmart building, a review of the flow and velocity data from the model found that the addition of the Kroger to the Kmart building reduced the overbank width of flow at the building by 209 feet and increased the average velocity of flow at the building by 20 percent. Prior to the addition of the Kroger building the Kmart building was essentially outside the active overbank flow of water. When the Kroger building was added, the overbank flow overlapped the combined building by 114 feet, increasing the exposure of the building to flowing water. Rapidly flowing water carrying debris along the back of the Kmart building that damaged the rear door was reported as the cause of the water intruding into the Kmart building on the date of loss.
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During the flooding of 2010, water levels above the FEMA 100 year flood level were reported in the building. To test the potential impact of the overgrown banks along Elam Creek channel, a third HEC-RAS profile was run based on channel properties for high flows and a poorly maintained channel found in the documentation for the HEC-RAS model. This model reported water levels at the building comparable to the water levels found at the building during the 2010 flood indicating water levels at the site could occur at the 100 year flow level. Given the impact of the other building obstructions located in the floodway and floodplain that are not included in the model, it appears that the actual flow at the site was likely less than the 100 year event. The results the high flow-poorly maintained condition was compared to the result from the second profile which assumed a moderately well maintained channel without obstruction. The comparison of the two models found that for the Kmart-Kroger building, the poorly maintained channel resulted in a 1.4 feet rise when compared to the depth at the site with a maintained channel. When the water level from the third profile was compared to the benchmark profile, the flow was 2.3 feet higher than the benchmark which is also in line with reported events. Conclusions: 1. The drainage basin upstream from the Kmart site received rainfall that appears to approximate the 1-percent-annual-chance rainfall event (100 year storm). Using the FEMA 1-percent-annual-chance (100 year) flow data, and using a model with an overgrown channel similar to that existing at the time of the flood, flooding in Elam Creek exceeds the FEMA 1-percent-annual-chance (100 year flood) elevation and approaches the actual depths of flooding at the building reported. The presence of the Kroger store as well as other buildings in the floodway increased the impact and depth of flooding during the flood event of May 2, 2010 and caused damage to Kmart. 2. The lack of maintenance of the creek channel, coupled with obstructions and debris in the channel increased the depth of flooding and caused increased damage to the Kmart during the flood event of May 2, 2010. 3. Filling in the low area behind the Kmart and Kroger stores reduced the flood storage volume and likely increased the depth of flooding damage to Kmart. 4. Despite the location of the building in a large and documented floodplain and floodway with a documented history of recent damaging past floods, no actions such as caulking and waterproofing the exterior walls, or construction of a protective membrane around the building were done to protect the building.
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Kmart # 4883 Amended EFI No.: 98340-08794 July 23, 2013
It is our belief that: had the creek channel been maintained, had building construction in FEMA’s regulatory floodway been restricted, had the area behind the Kroger and Kmart stores not been filled, and had the building been protected by waterproofing, the Kmart store would not have flooded, or had flooding occurred, it would have been occurred at such a depth that normal preventive actions by the store’s staff at the time of the event would have been able to protect the store from damage. Qualifications Our services have been performed using that degree of skill and care ordinarily exercised under similar conditions by reputable members of EFI Global’s profession. If any additional information is encountered which relates to this evaluation, EFI Global reserves the right to review our conclusions and opinions accordingly. In some cases, additional studies may be warranted to fully evaluate concerns noted. Any verbal statements made before, during, or after the course of the investigation were made as a courtesy only and are not considered a part of this report. Closing EFI Global, Inc. appreciates the opportunity to provide consulting services to you in this matter. Please contact us should any questions arise concerning this report, or if we may be of further assistance. Sincerely, EFI Global, Inc.
John R. Krewson Engineering Consultant
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Kmart # 4883 Amended EFI No.: 98340-08794 July 23, 2013
John R. Krewson, PE
FIGURE 1 - OVERALL SITE
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FIGURE 2 – CLOSE AERIAL VIEW OF SITE
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FIGURE 3 – FEMA FIRM PANEL OF THE SITE Panel No.2803C0067C Effective Date: Sept. 17, 2010
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FIGURE 4 FRONT VIEW OF KMART AND KROGER
FIGURE 5 LEFT SIDE OF THE KMART
Case: 1:11-cv-00103-GHD-DAS Doc #: 292-3 Filed: 10/30/13 16 of 25 PageID #: 4364 Kmart # 4883 Amended EFI No.: 98340-08794 July 23, 2013
FIGURE 6 VIEW ALONG THE FRONT OF KMART LOOKING FROM THE LEFT SIDE
FIGURE 7 VIEW ALONG THE REAR OF KMART LOOKING FROM THE LEFT SIDE
Case: 1:11-cv-00103-GHD-DAS Doc #: 292-3 Filed: 10/30/13 17 of 25 PageID #: 4365 Kmart # 4883 Amended EFI No.: 98340-08794 July 23, 2013
FIGURE 8 LEFT SIDE OF KMART LOOKING FROM THE REAR CORNER WITH TYPICAL DROP INLET IN FOREGROUND
FIGURE 9 TYPICAL DOWN DRAIN ON REAR OF BUILDING
Case: 1:11-cv-00103-GHD-DAS Doc #: 292-3 Filed: 10/30/13 18 of 25 PageID #: 4366 Kmart # 4883 Amended EFI No.: 98340-08794 July 23, 2013
FIGURE 10 CURB CUT IN REAR PARKING CURB NEAR LEFT SIDE OF KMART WITH DITCH BEYOND
FIGURE 11 FLUME THROUGH CURB BEHIND KMART
Case: 1:11-cv-00103-GHD-DAS Doc #: 292-3 Filed: 10/30/13 19 of 25 PageID #: 4367 Kmart # 4883 Amended EFI No.: 98340-08794 July 23, 2013
FIGURE 5 12 DITCH BEHIND KMART
FIGURE 13 GRASSED FIELD IN AREA THAT WAS FILLED IN BEHIND THE SITE WITH NEW FILL IN THE BACKGROUND
Case: 1:11-cv-00103-GHD-DAS Doc #: 292-3 Filed: 10/30/13 20 of 25 PageID #: 4368 Kmart # 4883 Amended EFI No.: 98340-08794 July 23, 2013
FIGURE 14 INLET TO 60 INCH PIPE COLLECTING WATER FROM THE DITCH BEHIND THE SITE
FIGURE 15 VIEW OF THE FIELD BEIND THE SITE NEAR THE RIGHT CORNER OF KROGER
Case: 1:11-cv-00103-GHD-DAS Doc #: 292-3 Filed: 10/30/13 21 of 25 PageID #: 4369 Kmart # 4883 Amended EFI No.: 98340-08794 July 23, 2013
FIGURE 16 PILE OF FILL MATERIAL IN THE FIELD BEHIND THE SITE WITH KMART AND KROGER IN THE BACKGROUND
FIGURE 17 RIGHT SIDE OF THE KROGER LOOKING BACK TOWARD HIGHWAY 72 WEST
Case: 1:11-cv-00103-GHD-DAS Doc #: 292-3 Filed: 10/30/13 22 of 25 PageID #: 4370 Kmart # 4883 Amended EFI No.: 98340-08794 July 23, 2013
FIGURE 18 FLOODING DEBRIS IN THE FENCE ON THE RIGHT SIDE OF THE ROAD RUNNING BESIDE KROGER
FIGURE 19 LOOKING UPSTREAM AT DEBRIS FIELD AT RAILROAD BRIDGE SOUTHEAST OF THE SITE
Case: 1:11-cv-00103-GHD-DAS Doc #: 292-3 Filed: 10/30/13 23 of 25 PageID #: 4371 Kmart # 4883 Amended EFI No.: 98340-08794 July 23, 2013
FIGURE 20 LOOKING DOWNSTREAM AT DEBRIS FIELD AT RAILROAD BRIDGE
FIGURE 21 DEBRIS FIELD AT RAILROAD BRIDGE
Case: 1:11-cv-00103-GHD-DAS Doc #: 292-3 Filed: 10/30/13 24 of 25 PageID #: 4372 Kmart # 4883 Amended EFI No.: 98340-08794 July 23, 2013
FIGURE 5 22 ABANDONED UTILITY LINES OBSTRUCTING ELAM CREEK WITH SPUR RAILROAD BRIDGE OBSTRUCTION AND OVERGROWN CHANNEL
FIGURE 23 OVERGROWN AND UNMAINTAINED CREEK CHANNEL
Case: 1:11-cv-00103-GHD-DAS Doc #: 292-3 Filed: 10/30/13 25 of 25 PageID #: 4373 Kmart # 4883 Amended EFI No.: 98340-08794 July 23, 2013
FIGURE 24 TREE AND OVERGROWN AND UNMAINTAINED CREEK CHANNEL AT BRIDGE
FIGURE 25 OVERGROWN SPUR RAILROAD BRIDGE WITH UTILITY OBSTRUCTIONS IN BACKGROUND
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EXHIBIT
D
Case: 1:11-cv-00103-GHD-DAS Doc #: 292-4 Filed: 10/30/13 2 of 142 PageID #: 4375
Case: 1:11-cv-00103-GHD-DAS Doc #: 292-4 Filed: 10/30/13 3 of 142 PageID #: 4376
Case: 1:11-cv-00103-GHD-DAS Doc #: 292-4 Filed: 10/30/13 4 of 142 PageID #: 4377
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Case: 1:11-cv-00103-GHD-DAS Doc #: 292-4 Filed: 10/30/13 6 of 142 PageID #: 4379
Case: 1:11-cv-00103-GHD-DAS Doc #: 292-4 Filed: 10/30/13 7 of 142 PageID #: 4380
Case: 1:11-cv-00103-GHD-DAS Doc #: 292-4 Filed: 10/30/13 8 of 142 PageID #: 4381
Case: 1:11-cv-00103-GHD-DAS Doc #: 292-4 Filed: 10/30/13 9 of 142 PageID #: 4382
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Case: 1:11-cv-00103-GHD-DAS Doc #: 292-4 Filed: 10/30/13 13 of 142 PageID #: 4386
Case: 1:11-cv-00103-GHD-DAS Doc #: 292-4 Filed: 10/30/13 14 of 142 PageID #: 4387
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Case: 1:11-cv-00103-GHD-DAS Doc #: 292-4 Filed: 10/30/13 16 of 142 PageID #: 4389
Case: 1:11-cv-00103-GHD-DAS Doc #: 292-4 Filed: 10/30/13 17 of 142 PageID #: 4390
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Case: 1:11-cv-00103-GHD-DAS Doc #: 292-4 Filed: 10/30/13 19 of 142 PageID #: 4392
Case: 1:11-cv-00103-GHD-DAS Doc #: 292-4 Filed: 10/30/13 20 of 142 PageID #: 4393
Case: 1:11-cv-00103-GHD-DAS Doc #: 292-4 Filed: 10/30/13 21 of 142 PageID #: 4394
Case: 1:11-cv-00103-GHD-DAS Doc #: 292-4 Filed: 10/30/13 22 of 142 PageID #: 4395
Case: 1:11-cv-00103-GHD-DAS Doc #: 292-4 Filed: 10/30/13 23 of 142 PageID #: 4396
Case: 1:11-cv-00103-GHD-DAS Doc #: 292-4 Filed: 10/30/13 24 of 142 PageID #: 4397
Case: 1:11-cv-00103-GHD-DAS Doc #: 292-4 Filed: 10/30/13 25 of 142 PageID #: 4398
Case: 1:11-cv-00103-GHD-DAS Doc #: 292-4 Filed: 10/30/13 26 of 142 PageID #: 4399
Case: 1:11-cv-00103-GHD-DAS Doc #: 292-4 Filed: 10/30/13 27 of 142 PageID #: 4400
Case: 1:11-cv-00103-GHD-DAS Doc #: 292-4 Filed: 10/30/13 28 of 142 PageID #: 4401
Case: 1:11-cv-00103-GHD-DAS Doc #: 292-4 Filed: 10/30/13 29 of 142 PageID #: 4402
Case: 1:11-cv-00103-GHD-DAS Doc #: 292-4 Filed: 10/30/13 30 of 142 PageID #: 4403
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Case: 1:11-cv-00103-GHD-DAS Doc #: 292-4 Filed: 10/30/13 33 of 142 PageID #: 4406
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Case: 1:11-cv-00103-GHD-DAS Doc #: 292-4 Filed: 10/30/13 35 of 142 PageID #: 4408
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Case: 1:11-cv-00103-GHD-DAS Doc #: 292-4 Filed: 10/30/13 38 of 142 PageID #: 4411
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Case: 1:11-cv-00103-GHD-DAS Doc #: 292-4 Filed: 10/30/13 54 of 142 PageID #: 4427
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Case: 1:11-cv-00103-GHD-DAS Doc #: 292-4 Filed: 10/30/13 67 of 142 PageID #: 4440
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EXHIBIT
E
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EXHIBIT
F
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Case: 1:11-cv-00103-GHD-DAS Doc #: 292-6 Filed: 10/30/13 3 of 6 PageID #: 4533
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EXHIBIT
G
Case: 1:11-cv-00103-GHD-DAS Doc #: 292-7 Filed: 10/30/13 2 of 8 PageID #: 4538
Case: 1:11-cv-00103-GHD-DAS Doc #: 292-7 Filed: 10/30/13 3 of 8 PageID #: 4539
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Case: 1:11-cv-00103-GHD-DAS Doc #: 292-8 Filed: 10/30/13 1 of 6 PageID #: 4545
EXHIBIT
H
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Bridge, Phillips, Elam Drainage District News From the desk of Milton Sandy Jr
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September 26, 2010
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Vol 2010-11
This newsletter is directed to friends and supporters of our efforts to get something done about the repetitive flooding in Corinth and Alcorn County which on May 2, 2010, caused loss of life, public and private property and threatened public health and safety by the massive release of raw sewage into flood waters. If you have news, questions or comments, please fire away.
ADOPT-A-STREAM, Corinth High School Science Club
Tuesday, September 21, 2010
What a day! with Ms. Amy Burks and Ms. Debra Veeder and 20 members of the Corinth High School Science Club- it was a blast. I couldn't fit all the pictures in so I made a collage which kind of expresses the energy and enthusiasm which these bright young people bring to a project. The Adopt-A-Stream Mississippi program is a chemical water quality assessment using test kits supplied by the Mississippi Wildlife Federation and the Mississippi Department of Environmental Quality. The test kits allow measurement of: Temperature, PH, Turbidity and Dissolved oxygen (DO). Test results are to be uploaded monthly to a website maintained by the MWF/MDEQ for the test sites established on Bridge, Phillips and Elam Canals. Although there is no provision for bacteriological testing, we hope to introduce this at some time in the future.
EXHIBIT Contact: Milton Sandy Jr 662-286-6087 - Fax 287-4187 - E-mail mlsandy@tsixroads.com
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Ms. Debra Veeder of the MWF shared her time and experience in biology as she discussed and presented information about stream biology monitoring as well. Students were given exposure to an incredible array of real life topics including macroinvertabrates, topography, geography, watershed mapping, history, physics, chemistry, mathematics and obviously with the number of pictures being taken, photography, journalism and multimedia. The pictures here are just a fraction of what were made so if you would like to see more, I would recommend a visit to the Corinth High School website: http://corinth.k12.ms.us/corinthhigh/CHS_Web_site/Science_Club.html You can't plan these kind of things but as we were finishing our last water sample test site at Bridge Canal where it crosses CR402, I received a call from Dennis Turner with WREG Channel 3 news out of Memphis who was covering another story in Corinth and wanted an interview about flooding before he left town. I told him to meet me in 5 minutes in front of Corinth High School where we were headed and he could meet the CHS Science Club as well. Mr. Turner was very impressive to me since I have never before been interviewed where the reporter seemed to know ALL the right questions AND knew what my answers were going to be before I opened my mouth. Turns out Mr. Turner had a couple of trade secrets he shared with me. First, he had covered flooding in Horn Lake, Mississippi, about 2 years ago and recognized similarities between the situation here and there. Second, I asked him how he knew about my involvement in flooding issues and he said that he had read the story in the Daily Corinthian a couple of months ago by Lee Ann Story who had attended the Rotary Club meeting as a guest of Mr. Reece Terry. Mr. Turner routinely reads the newspapers in the counties he covers and clips well written stories for follow-up. His preparation shows in the finished product he delivers to his viewers. Earlier in the day, Ms. Burks, Ms. Veeder and I were interviewed for a student produced video at the Elam Canal water testing site. The interviewer had been CHS student Ms. Abby Noyes. When Mr. Turner with WREG asked for a student representative to interview, I asked Ms. Noyes to be that representative since I had observed her earlier in the day doing our interview. Dennis Turner didn't need to interview me at all! Ms. Noyes impressed everyone who has seen this video with her poise, clarity and polished assessment of our objectives. And, speaking of Lee Ann Story, I want to give her a special thanks for not only covering the Corinth news so well, but also for being a great sport while helping out Stephanie with grilling the hot dogs to feed the hungry crowd of student water quality monitors. Stephanie had done a great job of planning and preparing and everything went smoothly when the students arrived at our office for lunch and a quick tour of what flood damage does to businesses and property owners. We were pleased to have Ms. BJ Nunley, Ms. Kim Jobe and Principal Elam join us for parts of the day. Thanks to Scotty and Amanda Little for use of their chairs and tables and to Coca-Cola of Corinth for the
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much appreciated water and soft drinks. Thanks to my mother and sister, Suzanne, for the desert. If you did not see the Channel News 3 spot, they did have it posted on their web site at: http://www.wreg.com/wreg-corinth-canals,0,2490004.story Sometimes these links change or get pulled so you should check it out promptly if interested.
ALABAMA WATER CERTIFICATION (and other adventures)
Saturday, September 18, 2010
A quick trip south to Mobile, Alabama took me to an interesting area that I have not visited often in my lifetime to attend a training session where Stephanie and I became certified water monitors under the Alabama Water Watch program. The AWW program is a statewide program dedicated to developing citizen volunteer monitoring of Alabama's lakes, streams, and coasts. The program began in 1992, and has involved over 260 citizen groups. Monitors have sampled about 2,100 sites on 700 water bodies and submitted over 45,000 water chemistry and 10,000 bacteriological data forms. This water information has had positive impacts on education, restoration and local-to-state water policy and provides an important baseline for future monitoring efforts. Our instructor was an experienced water monitor, Mr. Homer Singleton, who has been conducting workshops for almost 9 years. We met at a kayak launch area in the Graham Creek Nature Preserve in Foley, Alabama, a part of the Wolf Bay Watershed near Gulf Shores, Alabama- in a pitcher plant bog. I was quite surprised to learn about these rare carnivorous plants which trap and consume insects for nutrients and are found in these near coastal marshlands of Alabama. Our training included an explanation of the program's goals and how to monitor and evaluate physical and chemical features of water Instructor Homer Singleton including: PH, Temperature, Total Alkalinity, Total Hardness, Dissolved Oxygen, and Turbidity. The other section of the training session included bacteriological testing for E.coli and other coliforms and water quality standards. I was pleased that the testing involved the same test kits and procedures that I had been using so I was able to validate my prior experience while learning with a more experienced instructor. After a hard day of classes, we took advantage of a couple of local attractions. I was surprised to find what I thought was a Missouri exclusive located in Foley, Alabama. I must report that the “throwed rolls� at this Alabama branch are just as good as the ones in Missouri. We then proceeded to another South Alabama attractionBellingrath Gardens about 30 miles South of Mobile. I didn't know whether the gardens would be a disappointment this time of year but we were pleasantly surprised. Bellingrath is the
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former home of Walter and Bessie Bellingrath, who made a fortune in the Coca-Cola bottling business in Mobile after the turn of the last century. Originally a fishing camp, the home and gardens were developed as a get-away spot for their rest and relaxation and after the Bellingrath's death were donated to a non-profit foundation dedicated to the preservation of the gardens and home for the enjoyment of future visitors. We enjoyed the colorful gardens and can imagine a return trip in March for the spring where an estimated 250,000 azaleas bloom on the 65 acre estate. I have to mention two other special treats on this trip, totally unexpected. As we drove into Mobile on I-165 nearing downtown, I was really taken aback to smell something which brought back a lifetime of experiences in the lumber industry. On the interstate as you come into Mobile you can smell the distinct aroma of pine pitch, a distinct turpentine smell from freshly cut yellow pine lumber. As I looked down I could see a very large lumber mill which I correctly guessed and later identified was Gulf Lumber Company who my father and I did business with for well over 50 years. Gulf Lumber Company has now merged with Scotch Lumber Company and both were two of the oldest and most respected lumber manufacturers in the South known for the quality of their products and the integrity of their businesses. We conducted thousands of dollars of business over many years with nothing more than a verbal telephone conversation as a binding contract- a means of conducting business becoming increasingly rare these days. As we reached the end of I-165 and exited to downtown Mobile, I noticed a very striking building on the left and made a U-turn to go back and get a closer look. This magnificent Spanish Mission Revival architecture building turned out to be the headquarters of what was originally the M&O Railroad built to connect Mobile, Alabama with Cairo, Illinois. In 1861, this railroad was completed here in Corinth, MS by joining sections built south from Columbus, Kentucky, to another section built northward from Mobile, Alabama. The railroad junction here with the Memphis and Charleston became the objective of the Civil War battles of Shiloh and Corinth. In 1852, the first 30 miles of track had been laid between Mobile and Citronelle, Alabama. There, the railroad was constructed beside Chickasaw Creek. By staying close to the creek, the railroad avoided steep grades associated with the hilly terrain north of Mobile. When I learned this, it made perfect sense to me that the same engineers followed Elam Creek right through Corinth and Alcorn County for the very same reason. The M&O was physically and financially devastated by the Civil War and pretty much floundered until it was acquired by the Southern Railroad around 1901. The railroad prospered largely from the lumber industry in South Alabama until it was sold to the GM&N railroad around 1940 and became the GM&O. Completed in 1905, this building served as a passenger railroad terminal
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through the late 1950’s and since then has been an office building owned by the City of Mobile. The Gulf, Mobile, & Ohio (GM&O) Railroad Building is known as the most remarkable historic landmark in downtown Mobile and I feel is quite connected to Corinth, Mississippi. This reminded me that we once had a very attractive GM&O freight office building right here in Corinth at the foot of Cruise Street along with a freight dock extending about a block down to the GM&O rail tracks behind it and across the street from the Weaver Pants factory building. The GM&O freight office and docks were torn down here in Corinth and is the location of the Hiking and BikingTrailhead Park today. It was torn down sometime in the 1960's, I think, about the same time as the Rubel Building was demolishedin an era when “Urban Renewal” was the rage. Today many of the “Urban Renewal” areas are urban blights and restored and preserved historic properties are what are most valued for their uniqueness. Many years later after the GM&O building in Corinth was torn down, I was in Augusta, Georgia, and was surprised to find an Old GM&O Freight Office- foot of Cruse St identical railroad office building there (apparently the railroads had standard plans they used in multiple places) and had been saved and restored to make a 1,000 seat municipal auditorium, convention facility and restaurant downtown. As a young boy of 13 or 14, I remember going to this freight office to settle railroad freight bills for my father. There I would meet with a family friend who worked there, Mr. Walter Kemp. I remember he used a typewriter that to me seemed to date from when the GM&O first came to Corinth in 1861. I have never seen a more ancient typewriter and I remember Walter's proficiency with 2 fingers pounding the keys with amazing speed. It was years later before I was introduced to electric typewriters and then even later to computers. Finally, we drove over to Biloxi and visited the Beau Rivage Hotel and Casino which appears to be in full swing again. The buffet there was quite impressive and very good- I would highly recommend it. We toured familiar areas of Biloxi which were residential areas the last time we visited there in the late 1990's. It was astounding to us how total the devastation from Katrina was- entire neighborhoods no longer existed for 3 or 4 blocks back from the coastline. It was another pretty impressive reminder of the power of water when you are not prepared or expecting it.
BILL McPETERS, a resident creative genius Most anyone who was born in the last century in Corinth has some memories of McPeters Funeral Home now being demolished on Waldron Street. Most of the creativity that shaped the structure as it stood for the last 50 years or so was Mr. Bill McPeters. We should all thank Bill for the care and compassion that he has contributed to everyone who has come into contact with him during times of emotional stress and periods of personal loss of family members and loved ones. Page 5/7
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We should also take the opportunity to remember that Bill was himself almost a victim of flooding just a short period of time ago. His story is another illustration of why it is a matter of utmost urgency that we get something done about flooding in Corinth and how quickly we forget. Stephanie ran across this story recently from 2001. Since my friend, Jane Clark Summers, did such a great job reporting this story, I will repeat it here in her words:
SATURDAY.
December 1, 2001, Page B1
LOCAL/STATE - NORTHEAST MISSISSIPPI DAILY JOURNAL
Alcorn County flooding closes businesses, schools, roads By Jane Clark Summers, Daily Journal Corinth Bureau
CORINTH — Flash Flood Part II might well be the name of Thursday's weather bashing in Corinth and Alcorn County. It was a repeat of what some called a 100-year flood recorded about six weeks ago.
As then, Thursday's flood resulted in the early closing of schools and businesses as well as streets, county roads and at least part of U.S. Highway 72 West and close calls for stranded motorists. Kroger, Big K-Mart, Cato's, the Dollar Tree and On-Cue were deluged for the second time in as many months. The last three businesses and city and county schools remained closed Friday. Most businesses, which were flooded on Oct. 13, fared better this time with the use of sandbags, experience and more time to react. Streets floodedCorinth Police Chief Fred Johnson said all of the barricades available at the street department were put to use on several streets and at underpasses. Fulton Drive underpass was still under about 10 feet of water Friday morning. The chief estimated that 10 inches of rain fell within a 24-hour period. Last month, the same area was inundated by what Johnson called a 100-year flood. “This time, we may have had a 200-year flood,” he said, only half-jokingly....
Close Call
As a funeral director and the son of one, Bill McPeters has been close to death most of his life. On Thursday, he came much closer. McPeters, 78, was on his way to Kroger in the brand new green Mustang that he just insured the day before. He saw the barricade on Cox Street but decided he could make it through. He was wrong. The car began floating and filling with water. McPeters tried the driver's door and the passenger's but neither would open because the car has electric door locks and windows. He tried kicking out the glass but that effort failed also. “Water was within six inches of my nose and I felt my hat was crushing against the ceiling," McPeters said. "I thought I was a goner. I decided to try the passenger door again and the Lord opened it. I swam out with my boots on."
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He walked the rest of the way to a house on Cox Street where one of the residents had watched him drive into the murky water. Teresa Pate saw McPeters' car go past her house. "I was looking out my front door and saw a car trying to go through the water," Pate said. "It looked like he tried to back up and I saw his flashers come on." She then called the police department and was advised by the dispatcher that it would be a while before an officer could respond because of the changing of shifts, Pate said. "As soon as I hung up, I looked out but I didn't see the lights any more. I think the car had gone under. "Luckily, he got out OK," Pate said. .
"He said the Lord was looking out after him. He was pretty upset. I told him I could carry him home." Chief Johnson said he was told that when Pate's call came in, the dispatcher thought it was a nonemergency. When an officer was dispatched he did not see the car perhaps because it was already under water and then he was pulled off on an alarm call, Johnson said. The department got a subsequent call that a car was in a ditch but that the driver had gotten out and gone home, Johnson said. Barricades are not put up to inconvenience the motoring public, he said. "They are put up to warn of danger; we do everything we can to warn motorists," he said. "I am glad that he got out OK and maybe others will learn from his experience."... We're all glad Bill got out OK and we are fortunate to have had him around adding some of his unique color and creativity to our town. I hope everyone will join me in wishing him well and sharing in his loss of a landmark of his creation that had meaning to a lot of people in Corinth. We also celebrate his close call from flooding on Elam Canal and hope we can prevent others from having such harrowing escapes in the future. After my sewer cover picture last week, our friend Wade Burcham, a hydrological engineer with Thompson Engineering, called my attention to several You-Tube videos of really worse case examples of what I was trying to show. If you want to take a look, check out: http://www.youtube.com/watch?v=4BkFp5CL4q0 I'm told a proper engineering term for water pressure changes that push covers off is “hydraulic jump�. Some underground water lines carry storm water and are open to runoff. This is what was shown in this particular video. As I discussed last week, sanitary sewage lines are closed systems that should only have connections to sewer lines, not stormwater lines, and the covers for these should not be floating, suspended or blowing off even under flood conditions.
Next week Mr. Chad Borden has been hard at work this week finalizing legal documentation for the Bridge, Phillips and Elam Drainage Districts to be submitted to Chancery Court. We hope that this will lead to official recognition of these districts as soon as possible to allow us to be prepared to work with the City of Corinth and begin work on mitigating flood problems on the highest priority basis. I hope to get some analysis done on the stack of property owners questionnaires we've gotten back and I'll be reporting those results to you later. If you know of anyone who would like to be added to our email list or if you wish to be taken off, please let me know.
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EXHIBIT
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