JACKSON — A lawsuit filed last year alleging that two coal companies allowed a sediment holding pond to breach, exacerbating flooding of Quicksand Creek, has swelled to 72 plaintiffs, plus a second lawsuit with 15 plaintiffs, and attorneys and experts in the case have changed strategies.
They now say that not only did a sediment holding pond on the creek overtop or fail, but vast swaths of surface mining and poor reclamation by at least four coal companies in Breathitt and Knott counties created more runoff than the creek could handle.
The two lawsuits say heavy rain on the weekend of May 8-10, 2009, wouldn't have caused so much damage if not for the mining above the homes along at least 15 miles of the creek that runs parallel to state Highway 572 in northeast Breathitt County. The suits are both in Breathitt Circuit Court. One was filed in June 2009; the other, last week.
The suits are similar to cases that led to court orders in recent years to halt surface mining and study watersheds more closely in West Virginia and Pennsylvania, experts say, but no case has yet led to such measures in Kentucky.
State and federal regulators are now performing a study of the hydrology of the Quicksand Creek watershed. Last year, the state Division of Mine Reclamation and Enforcement determined that sediment holding ponds controlled by Lexington Coal Co. and Appalachian Fuels did not breach, although one might have overflowed.
Ned Pillersdorf, a Prestonsburg attorney who represents the plaintiffs in the suit, disagreed with the state's initial findings that the coal companies' sediment ponds did not fail.
The area of study includes many permits, stretching across two counties, said Steve Vance, manager of the London office for the Division of Mine Reclamation and Enforcement.
"These permits are old, and mining has taken place for a number of years. ... The area is not poorly reclaimed," Vance said.
The problem with the reclamation is that the companies, including Miller Brothers Coal and ICG, have done little to keep runoff from leaving active mine sites, said Jack Spadaro, a mine safety, health and environment expert working for Pillersdorf. Spadaro said that after he flew over the watershed in November, he determined active mining, and not just the sediment ponds, caused the flooding.
"I'm saying it's a cumulative effect of years of mining the watershed, and there were these vast areas that were only partially reclaimed," Spadaro said.
"I think the operators are required by law to have contemporaneous reclamation to protect the hydrological balance of water," he said.
State law doesn't necessarily require that kind of study, said Alice Jones, a geographer and watershed policy expert at Eastern Kentucky University. Jones is not associated with the lawsuit.
"In both Pennsylvania and West Virginia, a lot of the detailed physical study that was done basically confirmed anecdotal evidence," Jones said. "That basically happened subsequent to court orders in those states."
In Kentucky, relatively few streams have any kind of baseline data to show normal flow, she said. Proving property damage is one thing, but proving degradation of the stream is another problem.
Pillersdorf said some of his clients have yet to move back into their homes, and some suffer from post-traumatic stress because of the speed of flooding. His clients lost homes, pets, swinging bridges, belongings and peace of mind. He said they describe "a wall of water" rushing down the creek and filling their homes in a matter of hours.
The coal companies named in the lawsuits, Appalachian Fuels, Lexington Coal, Miller Brothers and ICG, either declined to comment on pending litigation or didn't return phone messages. They have denied the claims in court records.
Pillersdorf said he blames state regulators as much as the companies.
"There is a culture within the environmental protection cabinet that they are so predisposed to make excuses for the coal companies, there's a laxness of enforcement," he said.
Vance said federal and state regulators are working on the hydrological study in response to Pillersdorf's request for a review of the state's initial findings that the coal companies were not at fault. It's not clear how long the study would take.