Abandoned mines and poor monitoring worsened Kentucky flooding, lawyers say

As residents of Eastern Kentucky continue to search for missing loved ones, empty their homes and prepare for more rain, they are beginning to wonder who might be responsible for last week’s deadly flooding and it was a natural or coal disaster. mines that have radically reshaped and marked the landscape.

The compacted earth, destroyed mountain peaks and deforestation in eastern Kentucky have often been ignored by the coal companies that mined there, despite legal requirements that they try to return the land to its natural state when mining. mining ends. In recent decades, this dismissed responsibility has at times turned heavy rains into floods and caused local residents who once relied on mining for jobs and prosperity to file lawsuits against their former employers in courtrooms. of Appalachia.

Lawyers who have pursued such cases in the past said it was still too early to pursue a case during the most recent floods, as studies need to be carried out and claimants contacted, but the interest of holding someone responsible for lost homes and at least 37 death grows.

“It may be too early to tell, but I’ve had a few phone calls already,” said Ned Pillersdorf, a Kentucky attorney in Prestonburg who has successfully sued coal companies for flood damages in the past. “No one denies the amount of rain we had – it really was a 1,000 year event – but did the surface mines contribute to it? Absolutely.”

Kentucky, especially the eastern mountains, is littered with abandoned coal mines. Many are the result of surface mining or mountaintop mining, the latter method in which mining companies use explosives to blow up the top of a mountain in order to reach the coal inside.

Pillersdorf, whose home was flooded, noted that the hardest hit areas in his county are those closest to strip mines.

“It’s obviously just a slam dunk in terms of corporate irresponsibility,” said Alex Gibson, executive director of Appalshop, the Whitesburg cultural and educational center that was hit by more than 6 feet of water. “And how we can predict an outcome and ignore all the signs along the way until tragedy strikes and then act like, ‘Yeah, but we didn’t see it coming. That was the work. of God.'”

The Kentucky Coal Association, which represents mining operations in the state, did not immediately respond to a request for comment.

The loss of natural ridgelines, vegetation and trees, as well as fissures in the mountains that are largely corporately owned, often funnel rainwater into thin valleys or low troughs, where most of the Eastern Kentucky people settle.

Without these natural protections, regional flooding has increased as climate change drives new levels of precipitation from the Gulf Coast to Appalachia.

“They say it’s a natural disaster, but I’m sorry. It’s a disaster that’s been caused by a whole bunch of mining that’s happened over the last 40 years,” said Jack Spadero, the former director of the National Mine Health and Safety Academy who testified in as an expert witness in numerous coal mines. lawsuits in recent years. “It dramatically changed the landscape of Eastern Kentucky.”

“Like pulling teeth”

The Surface Mining Control and Reclamation Act of 1977, or SMCRA, was a federal regulation meant to prevent coal companies from leaving abandoned mines behind. The law required mine owners to reclaim the land and return it to its natural form as much as possible. In the 45 years since, many companies have shunned the job, and many states in the region, like Kentucky, have turned a blind eye.

Now there are more than 2,800 entries for Kentucky in the National Inventory of Known Abandoned Mining Lands, according to an Interior Department database, and much of it is located in the eastern mountainous region. of State. Experts also said the number in the inventory is likely a conservative figure and that recent coal company bankruptcies have made it more difficult to pursue accountability.

The SMCRA required each state to enforce the financial responsibility and reclamation obligation of coal mine operators in their state. While some states require mining companies to pay for reclamation costs upfront, others, such as Kentucky, allow them to post a bond for potential costs. In the past, small businesses in Kentucky were allowed to pool together, while larger ones could self-pounce, but the majority did so through a third party.

“There are surety companies holding these bonds, which are woefully inadequate to do the real work of reclamation, but many are even fighting to hand over these bonds, so it’s like pulling teeth,” said said Joe Childers, who has argued cases for the vulnerable. Kentuckians against big energy companies for over 40 years. “In the meantime, nothing is done. The hillsides are scarred, they are not recovered and you have a rainy episode like last week and you have terrible flooding. And that has been totally exacerbated by the lack of proper regulation .”

Image: An aerial view of Eastern Kentucky on July 30, 2022.
An aerial view of eastern Kentucky on July 30.Kentucky National Guard / via AFP – Getty Images

Since 2013, Kentucky has required companies to pay into a single bond pool through what essentially serves as a tax on a certain acreage or tonnage of coal. But the difference between the liabilities that were left behind and the trust fund that the state created in 2013 has increased significantly.

John Mura, spokesman for the Kentucky Energy and Environment Cabinet, said by email that the state agency was “engaged at this time to organize cabinet assistance” to affected areas and declined to comment further.

About 408,000 Kentuckians live within a mile of abandoned mining land, the Ohio River Valley Institute regional think tank estimated last year, and it will cost nearly $1.2 billion to fix it. In 2020, the Kentucky fund had about $52 million available, according to a state report.

Kentucky has spent just over $1.5 million of its rehabilitation fund, according to the 2022 executive budget. President Joe Biden, who has committed $11.3 billion to rehabilitating abandoned mines over the next 15 years. Last year, the state received $9 million from the federal government.

The new sum is huge, but “it’s just a drop in the ocean” to meet the needs of Appalachian communities, said Sarah Surber, a public health professor at Wayne State University, who has studied environmental justice issues in the region and practiced law there. for over a decade.

“How do you prioritize [the funding]?”, she said. “There are so many that have been left abandoned or remain in limbo, you have predicted more coal mining company bankruptcies, so how do you decide which mines will be recovered and what does this mean for communities and their protection in terms of pollution and flooding issues? »

Legal challenges

Kevin Thompson, an attorney whose work has drawn national attention for challenging powerful coal CEO Don Blankenship, said footage he saw of Kentucky last week gave him flashbacks to the King case. Coal from 2009 that he worked on in West Virginia and the photographs he took of the days after the flood that occurred there.

That case pitted 20 low-income families against four powerful corporations that Thompson said were responsible for two floods that swept away people’s homes.

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