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Abandoned mines and poor surveillance exacerbated Kentucky flooding, lawyers say

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As residents of eastern Kentuckians continue to search for missing loved ones, muck out their homes and prepare for more rain, they begin to wonder who is responsible for last week’s deadly flooding and whether it was a natural disaster or caused by the coal mines that have drastically reshaped and marked the landscape.

Compacted dirt, devastated mountaintops and deforestation in eastern Kentucky have often been ignored by the coal companies that have mined there, despite legal requirements that they try to return the land to its natural state when mining ends. In recent decades, that denied responsibility has turned sometimes heavy rains into floods and led local residents who once counted on mining for jobs and prosperity to sue their former employers in the courtrooms of the Appalachian Mountains.

Lawyers who have prosecuted these cases in the past said it is too early to pursue a case in the most recent flood as studies need to be conducted and plaintiffs contacted, but interested in contacting anyone responsible for the lost homes and at least 37 growing dead.

“It may be too early to say, but I’ve already gotten a few calls,” said Ned Pillersdorf, a Kentucky attorney in Prestonburg who has successfully sued coal companies for flood damage in the past. “Nobody denies the amount of rain we’ve had – it really was a 1000-year event – but did the comic mines contribute? Absolutely.”

Kentucky, especially the eastern mountains, are dotted with abandoned coal mines. Many are the result of strip mining or mountaintop mining, the latter a method in which mining companies use explosives to blow off the top of a mountain to get to the coal inside.

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

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

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

The loss of the natural ridge lines, vegetation and trees, and the cracks in the mountains largely owned by corporations often divert stormwater into the thin valleys or low-lying hollows, where most eastern Kentuckians make their homes.

Without these natural defenses, regional flooding has increased as climate change brings new levels of precipitation 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 lot of mining that has been going on over the past 40 years,” said Jack Spadero, the former director of the National Mine Health and Safety Academy who has testified as an expert witness in numerous coal mines. lawsuits in recent years “It has 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 designed to prevent coal companies from leaving abandoned mines. 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 that work and many states in the region, such as Kentucky, turned a blind eye.

Now there are more than 2,800 entries for Kentucky on the National Inventory of Known Abandoned Mineland, according to a Department of the Interior database, and much of it is in the eastern hill country of the state. Experts also said the number in inventory is likely a conservative figure and recent coal company bankruptcies have made it harder to account for.

SMCRA required each state to enforce financial responsibility and recovery obligation from the coal mine operators in their state. While some states required mining companies to prepay the costs of recovery, others — such as Kentucky — allowed them to put up a bond for the potential costs. In the past, small companies in Kentucky were allowed to create a pooled fund, while larger companies could tie themselves, but most were done through a third party.

“There are guarantors holding these bonds, who are woefully inadequate to do the real recovery work, but many are even fighting to hand over those bonds, so it’s like pulling teeth,” said Joe Childers, who has litigated cases for vulnerable groups. Kentuckians have been fighting big energy companies for over 40 years. “In the meantime, nothing is being done. The slopes are scarred, they have not been reclaimed and you get a downpour like last week and you have terrible flooding. And it was totally made worse 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 requires companies to pay into a single bond pool through what essentially serves as a tax on a specified area or coal tonnage. But the gap between the liabilities left behind and the trust fund the state set up in 2013 has grown significantly.

John Mura, a spokesman for the Kentucky Energy and Environment Cabinet, said by email that the state agency was “now organizing cabinet relief” in the affected areas and declined to comment further.

About 408,000 Kentuckians live within a mile of abandoned mineland, Ohio River Valley Institute regional think tank estimated last year, and it will cost nearly $1.2 billion to restore it. According to one state, the Kentucky fund had about $52 million as of 2020 report.

Kentucky spent just over $1.5 million from its recovery fund, according to its 2022 executive budget. The state is expected to receive an additional $75 million this year as part of President Joe Biden’s infrastructure bill, which is worth $11.3 billion. spends on mining abandoned mines over the next 15 years. Last year, the state received $9 million from the federal government.

The new amount is huge, but “it’s only a drop in the ocean” to meet the need for communities in the Appalachian region, said Sarah Surber, a public health professor at Wayne State University who has studied environmental justice issues in the region and there as a lawyer. for more than a decade.

“How do you prioritize? [the funding]she said. “There are so many that have been abandoned or left in limbo, more coal mining companies are expected to go bankrupt, so how do you determine which mines are being reclaimed and what does that mean for communities and their protection in terms of pollution and flooding? ?”

Challenges in lawsuits

Kevin Thompson, an attorney whose work has received national attention for challenging powerful coal CEO Don Blankenship, said the footage he saw out of Kentucky over the past week gave him flashbacks to the 2009 King Coal case he took in West Virginia. worked and the photos he took of the days after the flood that happened there.

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

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