Abandoned mines and poor oversight worsened Kentucky floods, advocates say

Written by Javed Iqbal

Like eastern Kentuckians continue to search for missing loved oneswiping out their home and preparing for more rain, they begin to question who might be to blame for this last week’s deadly floods and whether it was a natural disaster or a disaster caused by the coal mines that has drastically reshaped and scarred the landscape.

Compacted dirt, ruined mountaintops 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 mining ends. In recent decades, this abdicated responsibility has sometimes turned heavy rains into floods, prompting local residents who once counted on mining for jobs and prosperity to file lawsuits against their former employers in Appalachian courtrooms.

Attorneys who have previously pursued these cases said it is still too early to file a case in the latest flooding as investigations must be conducted and plaintiffs contacted, but interest in holding someone accountable for the lost homes and at least 37 died is growing.

“It might be too early to tell, but I’ve already received a few phone calls,” said Ned Pillersdorf, a Kentucky attorney in Prestonburg who has successfully sued coal companies for flood damage in the past. “Nobody’s denying the amount of rain we had—it really was a 1,000-year event—but did the strip mines contribute? Absolutely.”

Kentucky, especially the eastern mountains, is littered with abandoned coal mines. Many are the result of strip mining or mountain top removal miningthe latter a method where mining companies use explosives to blast off the top of a mountain to get to the coal inside.

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

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

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

The loss of natural ridgelines, vegetation and trees, and the cracks in the mountains, largely owned by corporations, often direct rainwater into the thin valleys or low-lying depressions where most Eastern Kentuckians make their homes.

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

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

‘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. In the ensuing 45 years, many companies avoided that work, and many states in the region, like Kentucky, turned a blind eye to it.

There are now more than 2,800 entries for Kentucky in the national inventory of known abandoned mine land, according to a Department of Interior database, and much of it is located in the state’s eastern hill country. Experts also said the number in the tally is likely to be conservative and that recent coal company bankruptcies have made it more difficult to pursue accountability.

SMCRA required each state to enforce the financial responsibility and reclamation obligation of the coal mine operators in their state. While some states required mining companies to pay reclamation costs up front, others—like Kentucky—allowed them to post a bond for the potential costs. Previously, small businesses in Kentucky were allowed to set up a pool fund, while larger ones were able to bond themselves, but the majority was done through a third party.

“There are bail bond companies that hold these bonds that are woefully inadequate to do the proper recovery work, but many are struggling to even sell these bonds, so it’s like pulling teeth,” said Joe Childers, who has filed cases for vulnerable persons. Kentuckians against big energy companies for more than 40 years. “In the meantime, nothing is being done. The hills are scarred, they’re not being reclaimed, and you get 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 pool through what essentially serves as a tax on a certain amount of acreage or coal tonnage. But the gap between the liabilities left behind and the trust fund the state created in 2013 has grown significantly.

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

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

Kentucky spent a little more than $1.5 million from its reclamation fund, according to the 2022 budget. The state is expected to receive an additional $75 million this year as part of President Joe Biden’s infrastructure law, which dedicated $11.3 billion to abandoned mine reclamation 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 bucket” to meet the needs of communities across Appalachia, said Sarah Surber, a professor of public health at Wayne State University who has studied environmental legal issues in the region and practiced law there for more than a decade.

“How do you prioritize [the funding]?” she said. “You have so many that have been left abandoned or in limbo, you expect more coal mining bankruptcies, so how do you decide which mines to reclaim and what does that mean for communities and their protection in terms of of problems with pollution and flooding?”

Litigation challenges

Kevin Thompson, a lawyer whose work gained national attention for challenging the powerful director of coal Don Blankenshipsaid the images he saw from Kentucky this past week gave him flashbacks to the 2009 King Coal case he worked on in West Virginia and the photographs he took of the days after the flood that happened there.

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

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Javed Iqbal

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