Abandoned mines and poor oversight made Kentucky flooding worse, lawyers say

so eastern Kentucky residents continue to search for their missing loved onesthey clean their houses and prepare for more rain, they begin to wonder who could be to blame for this deadly flooding last week and whether it was a natural disaster or one caused by the coal mines that have drastically reshaped and scarred the landscape.

Compacted earth, destroyed mountain tops and deforestation in eastern Kentucky have often been ignored by the coal companies that mine there, despite legal requirements that they try to return the land to its natural state when it’s done. mining. In recent decades, that neglected responsibility has at times turned heavy rains into floods and prompted local residents, who once relied on mining for jobs and prosperity, to sue their former employers in local courts. the Appalachians.

Lawyers who have followed these cases in the past said it is still too early to pursue a case in the most recent flood, as studies need to be done and claimants contacted, but the interest in holding someone accountable for the houses lost and at least 37 dead is growing.

“It may be too early to tell, but I’ve already gotten a couple of phone calls,” said Ned Pillersdorf, a Kentucky attorney in Prestonburg who has successfully sued coal companies for flood damage in the past. “No one is denying the amount of rain we had, it really was a 1000 year event, but did the open pit mines contribute? Absolutely.”

Kentucky, particularly the eastern mountains, are full of abandoned coal mines. Many are the result of open pit mining or mountaintop removal miningthe latter is a method in which mining companies use explosives to blast off the top of a mountain and get to the coal inside.

Pillersdorf, whose home was flooded, said the hardest-hit areas in his county are those closest to open-pit mines.

“Obviously it’s a clear blow in terms of corporate irresponsibility,” said Alex Gibson, CEO of Appalshop, the culture and education center in Whitesburg 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. It was God’s doing.'”

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

Loss of natural ridge lines, vegetation and trees, and crevasses in mountains that are largely owned by companies, often funnels rainwater into narrow valleys, or low hollows, where most of Eastern Kentucky residents build their homes.

Without these natural protections, regional flooding has increased as climate change increases precipitation levels. from the Gulf Coast to the Appalachians.

“They say it’s a natural disaster, but I’m sorry. This is a disaster caused by a bunch of mining activities that have been going on for the last 40 years,” said Jack Spadero, former director of the National Academy of Mine Safety and Health, who has testified as an expert witness at numerous coal mines. lawsuits in recent years “has dramatically changed the landscape of eastern Kentucky.”

‘How to get teeth’

The Surface Mining Control and Reclamation Act of 1977, or SMCRA, was a federal regulation that was supposed 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. Over the next 45 years, many companies avoided such work, and many states in the region, such as Kentucky, turned a blind eye.

Now, there are more than 2,800 entries for Kentucky in the national inventory of known brownfield sites, according to an Interior Department database, and much of it is in the state’s eastern mountain region. Experts also said the number in the inventory is likely a conservative figure and that recent coal company bankruptcies have made it difficult to find liability.

SMCRA required each state to enforce the financial responsibility and reclamation obligation of coal mine operators in their state. While some states required mining companies to pay recovery costs up front, others, like Kentucky, allowed them to post a bond for potential costs. In the past, small Kentucky businesses were allowed to pool, while larger ones could self-fund, but most went through a third party.

“There are bail bond companies that have these bonds, which are woefully inadequate to do the actual recovery work, but many are even struggling to deliver those bonds, so it’s like pulling teeth,” said Joe Childers, who has litigated cases of vulnerable people. Kentucky residents against major energy companies for over 40 years. “In the meantime, nothing gets done. The slopes are scarred, they don’t recover and you have a rain event like last week and you have terrible flooding. And it was 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 fund through what essentially serves as a tax on a certain number of acres or tonnage of coal. But the difference between the liabilities that were left behind and the trust that the State created in 2013 has grown significantly.

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

About 408,000 Kentucky residents live within a mile of the abandoned mine land, the Ohio River Valley Institute regional think tank estimated last year and its remediation will cost nearly $1.2 billion. As of 2020, the Kentucky fund had about $52 million, according to a state report.

Kentucky spent just over $1.5 million from its recovery fund, according to the 2022 executive budget. The state is expected to receive an additional $75 million this year as part of President Joe Biden’s infrastructure act, which dedicated $11.3 billion to the reclamation of 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 address the need of communities in Appalachia, said Sarah Surber, a professor of public health at Wayne State University who has studied environmental justice issues in the region and practiced law there. for more than a decade.

“How do you prioritize [the funding]?” he said. “There are so many that have been left abandoned or in limbo, more coal mine company bankruptcies are anticipated, so how do you decide which mines are brought back and what does that mean for communities and their protection in terms of pollution and flooding problems?

Lawsuit Challenges

Kevin Thompson, a lawyer whose work drew national attention for challenging the powerful coal CEO Don Blankenshiphe said the images he saw in Kentucky last week reminded him of the 2009 King Coal case he worked on in West Virginia and the photos he took of the days after the flooding that occurred there.

That case pitted 20 low-income families against four powerful companies that Thompson says were responsible for two flooding incidents that swept away people’s homes.

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