The ruling comes just weeks after a decision by Chief U.S. District judge Charles Haden in Charleston, West Virginia, that would put an end to the long-standing practice of coal companies putting fill into waterways and valleys. He ordered the Army Corps of Engineers to cease issuing new permits for mountaintop removal valley fills.

So far, at least 489 residents from southern West Virginia have filed suit against coal companies, timber operators, and large landowners over damages from the July 2001 flooding. In seven separate cases filed in circuit courts, 78 companies are named as defendants. According to the suits, mining and logging "caused natural surface waters resulting from the rainfall...to be diverted and delivered in an unnatural way and in incomprehensible amounts down the mountains, hills and valleys...destroying the lives and property" of residents.

Davis based her order on earlier recommendations by Nicholas County Circuit Judge Gary Johnson. In his recommendations, Johnson said that flooding occurred to varying degrees in six watersheds: the Coal, Lower New, Middle New, Tug, Upper Guyandotte, and Upper Kanawha. Following two major floods in July 2001, coalfield residents blamed the damage on clear-cut logging and how coal companies were going about mountaintop removal mining. Industry representatives have denied any liability.  
 
Documented problems
Mountaintop removal mining involves using very large explosive charges and giant earthmoving machines to take off the top of a mountain in order to dig up a seam of coal below. In many cases the coal seams mined by this method are too thin to mine profitably using more traditional methods. The Bush administration had approved regulations May 3 that would have allowed coal companies to dump material stripped from the mountains into streams and valleys. Those looser regulations were hailed by the big coal companies.

In a major 1979 Environmental Impact Statement, the new federal Office of Surface Mining (OSM) cited numerous studies that "documented significant increases in stream flood peaks, as a result of coal mining in Appalachia." OSM says in its regulations that mining operators must design sediment ponds, drainage ditches, and other water diversions, "to provide protection against flooding and resultant damage to life and property."

In a new draft study on mountaintop removal’s effects, federal regulators have also found that the land disturbance associated with mining increases peak stream flows during storms.

However, they said that the amount of increase varies from mine site to mine site. Topography, size of the mine, and degree of reclamation are some of the factors determining the extent of flooding that results from the practice. An Army Corps of Engineers preliminary report revealed that the way mining companies currently carry out mountaintop removal and other strip mining operations tends to make flooding more likely. At one of Arch Coal Inc.’s mines, for example, it was found that runoff was increased by 3 percent at one valley fill, 13 percent at another, and by a whopping 42 percent at a third location.  
 
Attempt to evade liability
In the draft study, federal officials said that state regulators are not doing enough to require adequate study of a company’s mining proposal to determine the potential for flooding before issuing mining permits. The coal and lumber barons, like Kentucky coal boss William Caylor, claim, "Mother Nature is to blame" for the flooding.

As far back as 1959, even the capitalist courts have ruled against such an assertion as a way of evading liability. At that time a federal court in northern West Virginia found that the exact percentage of an industrial activity’s contribution to mining was not relevant to whether the company in question was legally liable.

"Even if a flood was an act of God, where defendant’s negligence in maintaining a floodgate and a mesh fence over a stream concurred with the flood in causing damage to store, defendant was liable for the entire amount of loss to store when damage caused by negligence was inseparable from any damage that might have been caused by flood alone," said the ruling, written by then-Chief U.S. District judge Harry Watkins in Clarksburg, West Virginia.

In a related development, a second coal miner in less than two weeks died as a result of electrocution. In the latest incident Michael Kunkel, 50, died while performing electrical troubleshooting at Lone Mountain Processing Inc.’s Huff Creek No. 1 mine near Harlan, Kentucky. This is the fourth mine death in Kentucky and the 13th nationally this year.  
 
 
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