 
|
Signature Sponsor
November 11, 2024 - Mining for coal under homes can make land sink and settle, exactly what residents of this small community say has been happening all year. Homes are cracking apart, they warn. One blew up in March, killing its owner after methane gas seeped up through newly created rock fissures, a lawsuit claims. Through it all, worried residents keep asking a fundamental question: How can an activity undercutting the land on which their homes sit be allowed?
The answer: It’s written into federal law.
That’s part of a long history of rules that benefit mining companies rather than the Americans whose lives they disrupt. But the law does instruct regulators to act when there is imminent danger—and they’re falling down on the job, an Inside Climate News investigation found.
The Surface Mining Control and Reclamation Act (SMCRA) calls for companies to minimize mining damage from land subsidence, compensate affected property owners and replace lost water sources. But the federal agency that oversees SMCRA, the Office of Surface Mining Reclamation and Enforcement (OSMRE), routinely downplays its authority and fails to step in when problems mount, frustrating coalfield residents from Pennsylvania to Montana.
The law has allowed 24 states to be the primary coal mine regulators in their jurisdictions. That includes Alabama, which has taken no significant enforcement action against the mine in Oak Grove since the March home explosion and waited nearly six months after the blast to hold a public meeting about it with rattled neighbors.
An investigation into the cause of the blast by the Alabama Fire Marshal’s Office was inconclusive. But experts have said, and OSMRE documents describe, how methane migrates upward through disturbed rock atop an underground mine. A lawsuit by the family of the man who died in the March explosion alleges that by capping a water well on the property, the mine operator limited where the flammable gas could go and pushed it through new cracks and crevices to the surface. The Oak Grove Mine is one of the gassiest in the country.
Representatives of Crimson Oak Grove Resources, which operates the mine, did not respond to requests for comment for this story. The company’s lawyers have denied liability for the explosion.
Inside Climate News found little evidence that OSMRE has used its oversight authority to ensure that states minimize damage from subsidence caused by active mines, protect people living atop mines from methane migration or make certain that compensation provisions are handled fairly.
Nationally, records for 2019 to mid-2024 released after a Freedom of Information Act request show the federal agency rarely intervening with a state through its process known as a “ten-day notice,” an option that can trigger formal federal inspections.
Even with the law’s limitations, a former director of OSMRE said that SMCRA is strong enough to protect the people of Oak Grove—if only regulators were willing to act.
Joe Pizarchik, a Pennsylvania attorney with decades of experience, ran the agency through both terms of the Obama administration. He cited rarely used provisions of SMCRA that say “the regulatory agency shall” halt underground coal mining in cities, towns or communities if officials conclude there is an “imminent danger.”
 In the case of Oak Grove, Pizarchik said, if the Alabama Surface Mining Commission fails to act, then OSMRE can and should do so. “They should be able to conclude that blowing up people’s homes and killing them is an imminent hazard, and they should be able to suspend underground coal mining beneath those areas,” he said. “It appears we have a documented example of the regulator’s failure to fulfill their mandatory duty to protect the health and safety of the public.” Pizarchik’s conclusions are similar to those written in an OSMRE technical manual dated September 2001, eight months after President George W. Bush took office, on how to mitigate methane migration. The preface was written by Glenda Owens, a longtime senior manager at the agency and its current deputy director.
“Methane at explosive levels is an imminent danger,” she wrote. “Thus, when methane related to active coal mining causes an imminent harm situation, [OSMRE] or the State regulatory authority has the responsibility to act.”
Alabama Surface Mining Commission Director Kathy Love, by contrast, has suggested that methane migration from coal mines falls within a “black hole,” with no agency squarely responsible for mitigating risks, even to occupied dwellings.
Typically, when a state agency fails to follow a federal law, that’s an invitation for intervention from a federal agency. But some states—including Alabama—have recently argued in court that SMCRA gave them all but exclusive jurisdiction over the regulation of mining. Pizarchick dismisses that as a misguided “states’ rights” argument.
“States’ rights,” he said, “is a euphemism for not following federal law or protecting people’s normal rights.”
Inside Climate News has repeatedly asked to interview OSMRE experts since the Alabama home explosion in March. The agency has declined on every occasion and said the regulatory responsibility for surface and underground mining lies with the state.
In a late September email, agency spokesperson Judith Lavoie finally acknowledged that the federal agency could intervene. But she put the burden on local residents to start that process, saying, “OSMRE hasn’t received a complaint from citizens in Alabama on the fire or subsidence”—a claim at least one resident has disputed.
“They should be able to conclude that blowing up people’s homes and killing them is an imminent hazard.” – Joe Pizarchik, former federal mine regulator
On Oct. 24, OSMRE reversed course when asked for a reaction to Pizarchik’s assessment.
In an email, Francis Piccoli, OSMRE chief of communications, wrote that the agency has been “monitoring” the Oak Grove situation and had now decided on its own to conduct a federal inspection. Piccoli wrote that the inspection would be “in collaboration with the state of Alabama, the mine operator and the community to ensure the safety of the residents living in and near the Oak Grove/Adger area and to evaluate whether underground mining was a contributing factor in this tragic event.”
That confirmation came seven-and-a-half months after the explosion that killed W.M. Griffice, 78.
Legal scholar: Mining companies have the upper hand
Griffice had been uneasy for days after representatives from Crimson Oak Grove Resources—due to begin mining under his home in February—found methane gas in his water well and capped it, his family said. Loud booms began shaking the ground. He feared his home might explode. On March 8, it did. The blast destroyed the home, badly injured his grandson and sent Griffice to the hospital with injuries that killed him 26 days later. In the following months, residents of this community of about 500 people some 40 miles outside Birmingham said that they too are worried about the risk of methane from the mine moving up into their homes. Some say their homes are cracking apart as the land under them subsides.
 In interviews and testimony at the only public meeting since the explosion, residents have pleaded for help as they have learned more about what is happening beneath them. Hundreds of feet underground, miners operating massive machinery are chewing through buried coal seams and then allowing the ceiling of the new cavern to collapse behind them, causing the land above it to sink. Miners traditionally would carve out “rooms” in coal seams, leaving behind “pillars” of coal to hold the ceiling up, in what’s called “room and pillar” mining. Eventually, those pillars give way, often decades after a company sold the coal and abandoned the mine.
But by the late 1970s and into the 1980s, the industry was touting what it called a better, more efficient method for underground mining.
Longwall mining, which gets its name from digging out coal along an underground wall, allows companies to extract and sell more of their product. No pillars are left behind as bladed machines shear off large slices of coal along a vast underground expanse. Those mined-out chambers can be more than 1,000 feet wide and more than a mile long.
The industry describes longwall mining as “controlled subsidence,” said Kentucky-based attorney Tom FitzGerald, but that’s not the case in ways that matter to the people living above.
“It’s just controlled in terms of time because it happens immediately, but it’s not controlled at all in terms of its impact on the surface,” said FitzGerald, who has more than 40 years of experience representing coalfield residents, largely with the Kentucky Resources Council, a nonprofit environmental advocacy group that he led from 1984 until 2021.
“You’re going to have differential settlement, and you’re going to have damage to structures. You’re going to have the release of methane. You’re going to have the draining of aquifers. All of that’s going to occur,” he said. “It’s just going to occur in real time.”
For former U.S. Rep. Nick Rahall, who represented the state’s defunct 4th District from 1977 to 2015, the disruption in Oak Grove is all too familiar. It reminds him of the 1980s in West Virginia.
“A lot of my constituents were complaining,” recalled Rahall, a Democrat and West Virginia’s longest-serving congressman. “Subsidence from mining was causing ill effects upon their property and their water resources.”
It was a big enough problem that he got language inserted in the sprawling Energy Policy Act of 1992, a law that dealt with everything from electric utility markets to energy efficiency standards to alternate fuels. The provision Rahall inserted specified that companies needed to compensate property owners for damage caused by their underground mining. The language amended the SMCRA law passed in 1977, which regulates surface mining as well as the surface effects of underground mining.
A separate federal agency, the Mine Safety and Health Administration, regulates worker safety inside coal mines. In the last year, the Oak Grove Mine has racked up more than 840 safety citations, both before and after the death of a miner due to a rock collapse in September.
The 1992 SMCRA amendment was a balancing act both for Rahall, who also had many constituents financially dependent on the coal industry, and for Congress itself. And it included wording that intentionally weakened its effect: “Nothing in this section shall be construed to prohibit or interrupt underground coal mining operations.”
Coal operators have had the upper hand, and the support of lawmakers, for generations, said West Virginia University Law Professor Patrick McGinley, who has worked on mining issues for more than 50 years.
Starting in the late 1800s, companies across the region began securing the rights to mine underground coal with language in their deeds that gave them broad permission to damage the property of surface owners, setting the stage for political battles a century later.
“Basically they exempted coal operators from any liability, anything, any harm or injury to the surface, or any watercourse,” McGinley said, referring to any surface or underground source of water.
Eventually, public outrage over environmental and property damage caused by coal mining prompted Congress to pass the 1977 Surface Mining Control and Reclamation Act, which was heavily focused on addressing the ravages of strip mining, where giant shovels dug down from the surface or explosives blasted away at the tops or sides of mountains, wreaking havoc on farms, forests and streams.
As longwall mining expanded in the 1980s and early 1990s, coalfield residents raised their voices even more, McGinley recalled. Congress “caved into the pressure” and passed the 1992 amendments, he said.
 But, he said, the update did not go far enough to stop property damage, nor did it resolve concerns about methane releases. Instead, Congress set up a system that remains in place today, in which mining companies are obligated to minimize the damage they cause to property owners above the mines and compensate them for losses. This process routinely ends up in legal disagreements between companies and landowners, McGinley said. And, he added, regulatory agencies do little to ensure the public is treated fairly.
“It’s ridiculous,” McGinley said.
FitzGerald said the underlying problem goes back to a shortcoming of the original 1977 law. He said Congress should never have allowed “undermining where there’s a possibility of surface impacts, of subsidence, within three hundred feet of people’s dwellings.”
Benny Walden, whose father died in Oak Grove Mine, agreed. His home is among more than 100 in the Oak Grove area that are scheduled to be undermined sometime in the next year. In a deep Southern drawl, he said he resents the federal and state governments for their lack of action.
“They need to either completely shut it down or figure out a way to get the coal without destroying what’s on top of the land,” Walden said.
Ashley Burke, a spokeswoman for the National Mining Association, a lobbying group that considers itself “the voice of mining” in the United States, defends the environmental performance of its members, though Crimson Oak Grove Resources is not listed as a member on the association’s website.
“Mitigating impacts as much as possible—and correcting problems if they arise—is not only the law and good business, it’s embedded in the operational values of the modern mining industry,” Burke said.
Language favorable to mining in SMCRA “merely reinforces that the laws are not in existence to prevent or obstruct responsible mining, but to ensure mining is done properly,” Burke said.
At the public meeting following the explosion in Oak Grove, Griffice’s closest neighbor called on everyone, including state and federal regulators, to act more decisively to protect residents from the dangers of longwall mining.
“That night was a terrible, terrible night,” Lisa Lindsay said of the explosion. “It was terribly traumatic. We can make it better so that what happened to Mr. Griffice does not happen to anybody else.”
 The 1977 mining law created OSMRE. It also allowed states to adopt their own regulations, as long as those were at least as stringent as the federal rules, and let those states take the primary role of enforcement. Federal oversight in those states largely comes in the form of conducting reviews of individual regulatory programs.
OSMRE’s 2024 Annual Evaluation Report for the Regulatory and Abandoned Mine Lands Programs in Alabama says it is intended to focus “on the success” of the state “in meeting the [SMCRA] goals for environmental protection and prompt, effective reclamation of lands mined for coal.”
The report covered July 2023 through June 2024, including the period of the Griffice home explosion. But it made no mention of any oversight of Alabama’s regulation of subsidence. Nor did it reference methane migration at any active underground coal mine in the state, including the Oak Grove Mine.
|
|