Attorney General Filed Complaint Against Office of Mines and Minerals

The Attorney General has filed a complaint against Illinois Department of Natural Resources/Office of Mines and Minerals in Circuit Court at the Sangamon County Court House.  The complaint of the AG involves several aspects of how IDNR/OMM handled the Administrative Review of Permit #355 for the Banner Mine, a proposed strip mine in Fulton County.

The issues in the Banner Mine suit are similar to how other mining permits, like the Deer Run Permit #399 are treated by OMM.  The AG is bringing forth as a matter of public concern for OMM to acknowledge Illinois law and Supreme Court precedent.  The AG is contesting before the court the following practices, procedures and applications of OMM as documented in the Administrative Review of Banner Mine:

1.    The AG considers OMM’s statutory interpretations, rules, and practices to be at odds with the plain meaning and applicability of the Mining Act and other State laws.  In the Mining Act, it is expressed that OMM must “strike a balance between protection of the environment and agricultural productivity, and the Nation’s need for coal as a source of energy.”

2.    The AG contends that OMM denies due process when it fails to afford the public participation rights granted by the Mining Act, the Administrative Procedure Act, and Supreme Court precedent.  The Banner Mine Administrative Review was delayed over a year instead of being held within 30 days as directed by the Mining Act. The petitioners against Permit #399 have also been denied for almost 4 years due process since the administrative review has never been scheduled.

3.    OMM has interpreted its administrative rules to curtail and constrain the ability of 3rd parties such as private citizens and environmental organizations to question why any given mining permit has been issued.

4.     The AG considers a mining permit to be a license and a permit application review proceeding to be a contested case.  OMM refused to abide by contested case requirements and the review proceedings were mishandled in the Banner Mine proceedings.

5.    OMM refuses to recognize AG’s authority to seek reversal of coal permit decisions when designated as inappropriately approved as in the case of Banner Mine

6.    The AG anticipates that OMM will continue to delay the timely commencement of the permit review hearing based on a prior pattern that is unacceptable. A circuit court ruling would require OMM to comply with its legislative authorization.

7.    OMM cannot delegate any authority for final action on a mining permit to the Hearing Officer.  This action of insisting on adjudication by the Hearing Officer has delayed administrative reviews for several years.  A 30 day time period for the administrative review is not followed partly due to the emphasis on the Hearing Officer’s role.

8.    OMM participates as an adversarial party to the public by dismissing petitioners for questionably valid reasons.  Petitioners of Permit #399 and their lawyer have been threatened by OMM with potential sanctioning.  The same obstructive behavior exists for an administrative review of Significant Revision #1 of Permit #399.

The irony of the AG’s complaint is that IDNR/OMM is being defended by the same West Virginia law firm, Bailey and Glasser, who has battled against CALM petitioners.  Hillsboro Energy, LLC is an intervener for IDNR/OMM in Permit #399 and Significant Revision #1 of Permit #399.  The petitioners against Deer Run Mine have one lawyer who must face 4-5 lawyers representing IDNR/OMM and Hillsboro Energy, LLC.  Concerned citizens are definitely discriminated against in the handling of mining permit reviews.

According to the Mining Act, OMM should assure that “plans for all mining operations are available for the prior consideration of the public” in order to “prevent erosion, stream pollution, water, air, and land pollution and other injurious effects to persons, property, wildlife and natural resources,” and protect “the health, safety and general welfare of the people, the natural beauty and aesthetic values, and enhancement of the environment in the affected areas of the State,” while providing for “the enhancement of wildlife and aquatic resources.”

The petitioners against mining permit # 399 have been ignored and their rights denied.   This long discouraging battle has a tragic outcome.  There is not only one high hazard coal slurry impoundment in Hillsboro, but soon to be another almost twice the size closer to residents and built over mine voids.  The citizens endure the dust, contaminated and lost water, subsided farmland, lower property values, and the most significant tragedy is the resulting adverse health consequences. The coal will most likely be exported, but the pollution and impoundments remain.

Does Coal Entitlement Benefit Illinois?

Once again the question needs to be asked, ”Is the Illinois Government making the right decision?” Last year Illinois was the only state in the nation to have increased its coal production. The Illinois Government has promoted Illinois coal and has worked toward establishing coal as the 21st century energy source. Considering the dire outcomes from climate change and the ongoing accumulation of toxins from use of coal, the Illinois Government should reconsider the wisdom of establishing coal mining that will involve as much as two-thirds of land resources in Illinois.

The influence of the coal industry in Illinois is not demonstrated by the amount of electricity produced by coal-fired utilities, but rather the control over the state regulatory agencies and legislative bodies. In Illinois, the term, “King Coal” is truly descriptive of the coal industry’s pervasive influence on legislative statutes, appropriations, mining permits, and environmental protections. The government in Illinois has determined that coal is the energy solution for the state, and the citizens through their taxes are subsidizing the very industry that pollutes their backyard.

Is the state’s rationale for coal based on the hope of improving Illinois economy through coal development? It is difficult to understand how Illinois is financially benefiting from coal. Sales tax is paid only if the coal is sold in state. Most of the coal goes out of state or is exported. Unlike other coal states, there is no severance tax for extracted coal. Illinois exempts mining machinery from sales tax and new mines are often in enterprise zones for additional tax breaks. Does the State of Illinois and its citizens really profit from coal?

The coal industry has received millions of taxpayer dollars from the Illinois Department of Commerce and Economic Opportunity (DCEO) to enhance its profits and to establish it as the energy source for Illinois as “clean” coal. DCEO through its Office of Coal Development already funds 6 programs  to establish coal resources as a fuel for the future. Yet, DCEO is also the agency listed in the Comprehensive Solar Energy Act of 1977 that is the primary authority for supervising and implementing the solar
energy program in Illinois. What has been done by the Illinois DCEO to establish solar energy as a viable energy source as legislated in the 1977 act? As the rest of the U.S. moves to alternative energy sources, are the energy decisions by the Illinois government preparing its citizens for future economic growth?

In addition to the millions of dollars in subsidies for the coal industry administered by DCEO, the taxpayer also covers the administrative costs of coal mining permits since the fees paid by coal applicants are insufficient. Insignificant revisions (no public participation) and significant revisions are approved at no extra charge to the coal operator. Deer Run Mine in Hillsboro, Illinois has 16 revisions (last count) and one significant revision after Permit #399 was approved in 2009 for the same administrative fee. This process encourages mine operators to submit inadequate and misleading permit applications since Illinois Department of Natural Resources/Office of Mines and Minerals is very obliging with no cost revisions.

At one time, the public trusted that Illinois regulatory agencies enforced mining laws, the Clean Water Act, and the Clean Air Act. These laws should protect citizens and the environment while mining operations are conducted. The reality is that our communities are subjected to harmful air, contaminated water resources, subsided land, damaged roads, and permanent coal slurry structure impoundments. There is no monitoring or protection from the most harmful components from coal mining in the community. Illinois citizens are entitled to a government that minimizes community contamination from coal and sustains water and farmland for future generations. Instead, the Illinois coal industry is entitled to preferential treatment that increases contamination in communities and damages water and farmland resources.

Coal’s Support by Illinois Department of Commerce and Economic Opportunity

Annual funding to the Coal Technology Development Assistance Fund starts with $10 million dollars and to this is added by the Department of Revenue 1/64 of the revenue realized during the preceding month from the taxes imposed by the Electricity Excise Tax Law, the Public Utilities Revenue Act, the Messages Tax Act, and the Gas Revenue Tax
Act. The Illinois Department of Commerce and Economic Opportunity (DCEO) with revenue from taxpayers promotes, subsidizes, and markets the private coal industry in Illinois. Renewable energy sources are not the focus in the energy plan of Illinois.

Grants administered by DCEO’s Office of Coal Development to establish coal resources as a fuel for the 21st century. Deputy Director of the Office of Coal Development is Bill Holback, 217-782-6370.

1. Illinois Coal Competitiveness Program. Contact John McCarthy 217-785-1671 In FY 2012, DCEO awarded $9.1 million in state funds for 13 coal production and utilization projects. Since its inception in 1996, the program has
produced more than $2.1 billion in private infrastructure investments in Illinois. Approximately $15 million from the Coal Technology Development Assistance Fund is appropriated annually for the Coal Competitiveness Program.

2. Illinois Coal Demonstration Program. Contact Dan Wheeler 217-558-2645. Since its inception in 1981, IL has provided nearly $191.8 million from the Coal and Energy Development Bond Fund for 40 projects. Grants are typically
between $1 million and $30 million. DCEO is authorized to issue $185 million in IL General Obligation Bond funds to finance selected projects. A project-specific appropriation must be made and projects are subject to final approval by
the governor.

3. Illinois Coal Research Program. Contact Dan Wheeler 217-558-2645. To date, the Coal Research Program has provided grants totaling more than $71.5 million in state, federal, and private industry funds to more than 15 universities and other research institutions engaged in coal research activities focusing on, carbon management advanced coal mining technologies, power generation and plant efficiencies, coal gasification, flue gas cleaning, and coal chemistry. In FY 2012, DCEO awarded $1.1 million in state funds to conduct 11 research projects. Approximately $3 million from the Coal Technology Development Assistance Fund is made available to the IL Clean Coal Institute (ICCI) for research projects annually.

4. Illinois Coal Development Program. Provides a 50/50 match with private industry dollars.  To date, nearly $14.7 million has been awarded to 76 projects.

5. Illinois Coal Revival Program. Contact Dan Wheeler 217-558-2645. This program provides financial assistance in the form of grants to assist with the development of new, coal-fired electric generation capacity or coal gasification facilities in IL. The grant is based on State Retail Occupation Taxes that will be paid on Illinois coal purchases for new facilities. Qualifying facilities may be eligible for grants roughly equal to the present value of future sales taxes paid on Illinois-
mined coal over a 25 year period, up to a maximum amount of $100 million. Source of Funds: The Illinois Resource Development and Energy Security Act (Public Act 92-0012) authorizes DCEO to expend $500 million Coal and Energy
Development Bond Funds to promote the development of new, coal-fired electric generation capacity in Illinois

6. Illinois Coal Education Program. Contact Linda Dunbar 217-558-2648. DCEO’s program “strives to preserve and enhance the marketability of Illinois coal; heighten awareness and understanding of the importance of the coal industry
to the socioeconomic structure of IL; and promote the mining and utilization of coal in IL. Program activities include the development and distribution of comprehensive coal education resource materials for use in Illinois classrooms.”
DCEO also sponsors an art and essay contest and a 4 day workshop for teachers at Rend Lake.
The “coal curriculum” distributed by DCEO is a pro-coal program that does not reveal the environmental and health consequences produced by coal mining and coal use.

Illinois Coal Industry’s PR in Schools

DCEO’s Coal Education Program has attracted criticism from environmentalists and educators who object to the unbalanced view of coal as the necessary energy source for national security. The “coal curriculum” distributed by DCEO is a pro-coal program that does not reveal the environmental and health consequences produced by coal mining and coal use.

The program lacks facts on the effect of coal in communities and on climate change. Coal slurry impoundments, coal combustion waste, damage to health, contaminated and loss of water resources, etc. are not addressed. Subsidence was only mentioned once with respect to abandoned mines, but nothing on longwall mining effects on farmland,
water resources or roads. Air pollution is “not a problem” since the Clean Air Act has regulated air emissions. There is no recognition of polluting coal-fired plants that are exempt from the emission standards.

This coal material is nothing more than the coal industry and coal-fired utilities attempt to sell coal as a 21st century solution to US energy needs. It is tragic that the state of Illinois distributes coal misinformation and coal propaganda to our youth in Illinois on the taxpayer’s dime.

Where are the Renewable Energy Programs in Illinois?

Although the Illinois Legislature in 1977 mandated that the Department of Commerce and Economic Opportunity educate and promote solar energy to the citizens of Illinois, that mandate was superseded by the influence of the coal industry. Solar and wind energy programs have not been developed or considered to be an important consideration of Illinois energy policy. The lack of funding and tax applications to renewable energy indicate loud and clear the direction Illinois is headed. Fossil fuel dominates now and will do so in the future.

There is a Solar and Wind Energy Rebate Program handled through the Illinois Department of Commerce and Economic Opportunity that is focused on smaller- scale solar and wind energy systems in Illinois. Applicants who are eligible include
customers of an electric or gas utility that pay the Renewable Energy Resources and Coal Technology Development Assistance Charge. The rebate program was so successful that the budget for this program at DCEO is depleted and the FY 2013 Solar and Wind Rebate Program is closed.

On DCEO’s Renewable Energy web site, it was stated that there may be funding for this program in September 2013. Wayne Hartel is the contact at DCEO, and his phone number is 217-785-3420.