May 28, 2015 Practice Points

Expert Witness Role in $9.8M Mine Subsidence Ruling

The subsidence resulted from the collapse of a subjacent coal mine that had been closed since the mid-1950s, resulting in extensive damage to an elementary school.

By Gennaro G. Marino

In September 2014, the Circuit Court of Macoupin County, Illinois, Judge Patrick Londrigan presiding, awarded the Gillespie School District nearly $10 million in damages due to a major mine subsidence event that occurred in 2009. The subsidence resulted from the collapse of a subjacent coal mine that had been closed since the mid-1950s, resulting in extensive damage to an elementary school. The 7-year old Benld Elementary School was damaged beyond repair and condemned for use as a school and eventually demolished. A new school was built in Gillespie, being within the same school district, at a cost in excess of $29 million in 2013. The significance of the court's ruling is related to a precedent imposing liability for subsidence to current owners of closed coal mines, under limited circumstances, even though the owner was not involved in the removal of coal.

The ruling was based in part on expert testimony. The experts in the case determined that in fact the damage to the school was due to mine subsidence. In addition, the present day cost to replace the building was determined and they also determined that the mine would need to be stabilized. Expert testimony noted that re-building on the same site was not practical without mine stabilization as the ground was still moving. Cost to stabilize the mine was however denied by Judge Londrigan due to the fact that the property wasn't grouted prior to building the school in 2002.

In the Macoupin County case, the school district sued Union Pacific because its merger partner (Chicago and North Western), owned a subsidiary which mined the coal between 1905 and 1957. In 1995, the railroad companies, Chicago and North Western, merged with Union Pacific, and Union Pacific was the surviving entity. In 1956, Chicago and North Western, through its Board of Directors, passed a resolution that its subsidiary, Superior Coal, who had originally mined under the school site, be dissolved, in which dissolution was finalized in 1957. The court held that Union Pacific was liable for the damages because the Board of Directors of Chicago and North Western had passed a resolution assuming all the assets and liabilities of its subsidiary, Superior Coal. The school district also filed a claim under the theory of alter ego alleging that Chicago and North Western had treated Superior Coal as a department of the parent corporation as opposed to a separate corporate entity. This relationship, if sustainable under the facts, can expose current owners of coal mines to liability for subsidence damages, if an alter ego relationship existed between the parent corporation and its subsidiary. Union Pacific is presently appealing the 2014 ruling of the Circuit Court of Macoupin County to the Illinois Fourth District Appellate Court.

This case may have larger implantations, however, the U.S. Bureau of Land Management (BLM) states: "There are estimates of as many as 500,000 abandoned mine in our nation." One of the problems in determining the true number is the lack of accurate mine maps. Many mines from the 1880s are unknown or lack accurate mapping. There are many hazards that can be associated with abandoned mines, with subsidence being of the most visible and devastating.

Coal extraction by underground mining consists of leaving mine voids with "columns" of coal to support the overlying ground. This method is called room and pillar mining. The voids are often referred as room, entries or mains and the remaining coal "columns" are called pillars. Subsidence can occur when these pillars cannot support the ground above them. The problem with older mines is that they are less engineered and lack enough underground support. Subsidence can occur at any time. Mine subsidence risks are a major factor for land developers, particularly in heavily mined states and areas where prime land is in short supply. Preliminary testing for undermined areas is essential when mining is suspected.

On April 15, 2015, a mine subsidence in an adjoining room and pillar panel, caused structural damage to at least 15 homes in Benld, Illinois, which occurred approximately four blocks from the site of the former Benld Elementary School. The damage may have been caused as a result of a subsidence in the same coal mine that is owned by Union Pacific and/or the neighboring Superior Coal, which is also owned by the same corporate structure.

Gennaro G. Marino is with Marino Engineering Associates, Inc, in Urbana, Illinois.

Keywords: expert witnesses, litigation, subsidence, coal mining, Union Pacific, Benld, Superior Coal

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