If you look at the law, you’ll see that you have protection. Living and working in coal country and the processes of coal extraction coexist beautifully in the statutes and rulebooks governing the handling of claims of damage from the process of mining. In reality, however, the law pits a landowner against two very powerful and resourceful figures: the coal mining company and the government, to enforce the landowner’s right to a replacement water supply or compensation for damage to buildings and lands that literally fall in to the ground due to subsidence once mining occurs in the area.
The law requires a replacement water supply or compensation for subsidence damage when a landowner complains to the mining company and the state conducts an investigation determining that mining was the presumptive cause or, for properties outside of a certain number of feet diagonally from the extracted coal, was the cause of the water loss or diminished quality or subsidence. If the state makes that finding, then the coal company is allowed time to rebut the presumption or otherwise prove that the cause of subsidence, contamination or diminished quantity of water is something other than mining. Many times, we see the state giving the coal company multiple opportunities to make such a showing.
Then it happens: the state issues an order stating that the coal company was right. We hear the same story from our clients almost every time. The story is that the state first orders the mining company to provide a temporary water supply replacement, which is usually in the form of a water buffalo that has to be filled at least once a week. Then, the state and the company test the water well for quality and quantity. They wait, test again, and may repeat this process as long as they see fit. Then, the company will produce an expert report that always seeks to rebut the presumption that they caused the damage. The state then gives in, sends a letter to the landowner stating that a replacement supply is not warranted, and the water buffalo is removed. Our client then has 30 days to appeal the decision.
Most of our clients start the appeal process headstrong to get their water back and seek justice. Even when we provide pro bono services, our clients are faced with the prospect of having to prove that the coal company’s actions caused the impact to their water or damage to their land and structures. The cost is daunting: around $15,000 at a minimum just for the development of an expert report. The decision our clients eventually have to make: spend money on an uncertain outcome to seek justice OR spend money on a solution to the home or structure damage, such as drilling a new and deeper water well or moving away. It’s an unfair outcome no matter which decision the client makes.
While we have settled many water supply replacement and subsidence cases, we have never won one. For example, after one 5-day hearing, Ohio’s Reclamation Commission, where appeals of the State’s decision on causation must be brought, factually ruled out every single one of the State’s reasons for causation (well maintenance, drought, and other local users), and yet could not reach a quorum on whether the nearby mining caused our clients’ water losses. The procedural result of this non-decision is that the State’s finding is upheld, despite the finding that the basis for their decision is false. These landowners are still without a potable water supply, more than 3 years after mining approached their properties and their wells went dry, and despite having plenty of water for household uses for decades from these same wells. The combination of two well-funded parties in the State and the Mining Company against a landowner, and requiring the landowner to prove exactly what occurred in the underground water source and how its connected to the nearby mining, is a nearly impossibly heavy burden in today’s expensive legal and expert services market. Our clients simply cannot afford to go through hearing. Most of the time, our clients cannot afford an expert witness to opine on the cause of the water loss or structural damage.
We have noticed the difference between legal protection on the face of the law and justice most in these water supply replacement cases among all of our environmental cases. It renders legal rights meaningless when the administrative process is used to bargain those rights away.