Lawyers say abandoned mines and poor oversight have worsened Kentucky floods

As residents of eastern Kentucky continue to search for their missing loved ones, destroy their homes and prepare for more rain, they are beginning to wonder who might have been at fault in last week’s deadly flooding and whether it was a natural or coal-triggered disaster. Mine that radically reshaped the landscape.

The compacted dirt, devastated mountaintops, and deforestation of eastern Kentucky are often overlooked by the coal companies mining there, despite legal requirements to try to return the land to its natural state when mining ends. In recent decades, this denial of responsibility has, at times, turned heavy rains into floods and caused local residents who once relied on mining for jobs and prosperity to sue their former employers in Appalachian courtrooms.

Lawyers who have followed these cases in the past said it is still too early to pursue a case in the recent floods as studies should be conducted and claimants contacted, but that interest in holding someone accountable for the lost homes and at least 37 dead people is growing.

“It may be too early to tell, but I’ve had two phone calls already,” said Ned Bellersdorf, a Kentucky attorney in Prestonburg who has sued coal companies for flood damage in the past. “No one is denying the amount of rain we’ve had – it’s been a real event for 1,000 years – but did the ribbon mines contribute? Sure.”

Kentucky, especially the eastern mountains, is full of abandoned coal mines. Many are the result of strip mining or mountaintop removal mining, the latter being a method in which mining companies use explosives to blast a mountaintop to reach the coal within.

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

“It’s clearly just a clear swoop in terms of corporate irresponsibility,” said Alex Gibson, executive director of Appalshop, the Whitesburg culture and education center that hit more than 6 feet of water. “And how do we predict an outcome and ignore all the signs along the way until tragedy happens and then act like, ‘Yeah, but we didn’t expect it to happen. 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 natural ridgelines, vegetation and trees, and cracks in the mountains that are largely owned by corporations often divert rainwater into the thin valleys, or low hollows, where most eastern Kentuckians make their homes.

Without this natural protection, regional flooding has grown as climate change has raised precipitation levels from the Gulf Coast to Appalachia.

They say it’s a natural disaster, but I’m sorry. said Jack Spadero, a former director of the National Academy of Mine Health and Safety who has testified as an expert witness in several coal mine lawsuits in recent years. “It changed the landscape in eastern Kentucky dramatically.”

‘Like tooth extraction’

The Surface Mining and Reclamation Control Act of 1977, or SMCRA, was a federal regulation that was supposed to prevent coal companies from leaving abandoned mines behind. The law obligated mine owners to reclaim the land and return it to its natural form as much as possible. In the 45 years that followed, many companies shunned this business and many countries in the region, such as Kentucky, turned a blind eye.

Now, there are more than 2,800 Kentucky entries in the National Inventory of Abandoned Known Mining Lands, according to the Department of the Interior’s database, a large portion of which are located in the state’s eastern hill country. Experts also said the number in stock is likely a conservative number and that the coal company’s recent bankruptcies have made it difficult to pursue accountability.

The SMCRA requires each state to impose a fiscal responsibility and reclamation obligation for coal mine operators in their state. While some states required mining companies to pay for reclamation up front, others – such as Kentucky – allowed them to provide a bond for potential costs. In the past, small Kentucky corporations were allowed to set up a pooled fund, while larger corporations were able to self-associate, but the majority were done through a third party.

“There are underwriters holding these bonds, and it’s absolutely not enough to do the real reclamation work, but a lot of them are fighting to deliver those bonds, so it’s like tooth extraction,” said Joe Childers, who has filed lawsuits against underdogs. Kentucky has been against the major energy companies for more than 40 years. “Meanwhile, nothing is being done. The hillsides are warped, not restored and you’ll get rain like last week and have terrible floods. And it’s totally exacerbated by the lack of proper organization.”

Photo: An aerial view of eastern Kentucky on July 30, 2022.
Aerial view of eastern Kentucky on July 30.Kentucky National Guard/Via AFP – Getty Images

Since 2013, Kentucky has required corporations to pay in a single bond pool through what essentially serves as a tax on a certain amount of land or tonnage of coal. But the difference between the liabilities that were left and the trust fund set up by the state in 2013 has grown exponentially.

John Mora, a spokesman for the Kentucky Cabinet of Energy and Environment, said by email that the state agency is “now working to regulate Cabinet assistance” for affected areas and declined to comment further.

About 408,000 Kentuckians live within a mile of abandoned mine grounds, the Ohio River Valley Institute, a regional think tank, estimated last year, and it would cost nearly $1.2 billion to repair. As of 2020, the Kentucky Fund had about $52 million, according to a state report.

Kentucky has spent just over $1.5 million from the reclamation 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 Act, which earmarks $11.3 billion to reclaim abandoned mines over the next 15 years. Last year, the state received $9 million from the federal government.

Sarah Surber, a professor of public health at Wayne State University who has studied environmental justice issues in the area and practiced law there, said the new amount is huge, but “just a drop in the sea” to meet the need of communities across Appalachians. for more than a decade.

How do you set priorities? [the funding]? “She said.” You have a lot left abandoned or sitting in limbo, you have more coal miner bankruptcies, so how do you decide which mines are to be reclaimed and what does that mean for communities and protect them from pollution and flooding?

lawsuit challenges

Kevin Thompson, a lawyer whose work garnered national attention for defying powerful coal CEO Don Blankenship, said the photos he saw from Kentucky last week gave him flashbacks to the 2009 King Cole case he worked on in West Virginia and photos he took of it. The days after the flood that occurred there.

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

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