Citizens Working to Improve Coal Communities in Montgomery County

Coal rights location map showing 120,000 acres that were sold by the Montgomery County board to an affiliate of Cline Group.

For the last several years the focus of Citizens Against Longwall Mining has been to minimize the environmental impacts from Deer Run Mine and maximize the community benefits from coal extraction in Montgomery County.

We have identified two primary approaches that would greatly help the economic and developmental growth in Montgomery County.

  1. A coal severance tax should be established in Illinois.
  2. The royalty rate per ton of coal extracted from Deer Run Mine should be increased.

It is hard to understand why Illinois is one of the few coal mining states that do not have a severance tax. West Virginia has a 6.5% and Wyoming a 10.6% coal severance tax. Some Illinois communities have shown their support for a coal severance tax. The Montgomery County Board passed a pro-severance tax resolution during Roy Hertel’s chairmanship. Benld City Council has also approved a resolution to establish a coal severance tax in Illinois. To date, unfortunately, the State of Illinois is more supportive of profits for the coal operator than promoting the needs of coalfield communities.

One proposed plan for a coal severance tax in Illinois was for one-third of collected revenue to go to coal extraction communities, one-third to the state general revenue fund, and one-third to a permanent legacy fund that would cover costs later after the coal companies are gone. There is abundant evidence to support the need for this proposal. There have been two schools destroyed by subsidence in our area, Benld, several years ago, and Swansea, this September, 2017. A legacy fund would have helped communities with expenses like school replacements and repair of damaged infrastructure.

Past experiences show that communities cannot depend on Illinois government agencies and legislators to go against the interests of the coal-utility complex. People power is the most effective way to address the needs of communities. To unite and inspire citizens to act in their own best interests, they must be made aware of the past and consequences that are occurring now and in the future.

Montgomery County and Hillsboro were horribly short-changed when the coal bargaining terms were set up. The coal rights for 120,000 acres were sold by the Montgomery County Board for only $7.2 million to an affiliate of Cline Group in December 2004. This group turned around a short time later and resold the coal rights to another Cline affiliate for $255 million or about 35 times more than initially sold by the Montgomery County Board!

The 3% royalty rate is also too low for any growth potential in Montgomery County. In fact, the 3% is really about 1.5% to the county after Deer Run Mine’s required payments like Black Lung, Abandoned Mines, transportation costs, etc. are subtracted.

In yet another case with questionable results between citizens of a community and the giant coal industry, the citizens of Hillsboro lost their airport and failed to receive fair compensation for this loss. The airport was not appraised as a certified, functioning airport, resulting in an appraisal far below replacement value. The Hillsboro Airport was sold to Hillsboro Energy LLC for $350,000 on January 9, 2008 with the stipulation that the airport would be replaced within 10 years. There still is no Hillsboro airport or plans in the making to construct one.

Citizens are at risk of losing money in more subtle ways. The permanent placement of two high-hazard coal slurry impoundments, the violations of the Clean Air and Clean Water Acts, subsided farmland, and compromised roadways caused by Deer Run Mine are bound to adversely affect property values in Montgomery County. The community is not sharing in the wealth from coal extraction, and these companies should pay back to communities they have adversely affected. Our schools and communities are not receiving the funding that they need to provide 21st century opportunities.

Harm is caused to coalfield communities in many ways, and some are unexpected, but extremely dangerous. Deer Run Mine is sealed due to an ongoing fire that has been burning since March 2015. Even though Deer Run Mine is inactive, Hillsboro Energy LLC applied to the Illinois Department of Natural Resources, Office of mines and Minerals for a 7,731.8 acre expansion in 2015. IDNR/OMM has not approved or denied the permit application.

The underground fire has not been extinguished after several attempts and should be a major concern to everyone in Montgomery County. There seems to be no accountability for the community’s safety. This ever present danger to the community must be in the forefront of communications with the mine. Citizens need to know where the fire is located since Deer Run Mine is located in the City of Hillsboro. Is the fire migrating and in what direction?

When the Hillsboro Zoning Board of Appeals amended the land use plan to allow underground coal mining, the stated reason for the zoning change was “…to promote economic growth of the community, conserve property values, and protect the health, safety, and welfare of the citizens of the City of Hillsboro, Illinois…” Instead, much the opposite has resulted, our community continues to struggle financially and area citizen’s health and safety are at greater risk. For improvement and growth in Montgomery County, residents must unite and work toward a community benefit plan that holds coal operators responsible to the region in a way that enhances the quality of life for all.

 

Montgomery County Residents Express Concerns Over Deer Run Mine Expansion

William Schroeder, a landowner concerned by the proposed expansion area, addresses Scott Fowler (rt) and Cliff Johnson, Land Reclamation Specialist, about the lack of a formulated plan to handle the drainage issues of subsided land with no timeframe for reclamation. William questioned how the subsidence of each sunken panel going north to south could be corrected when each time there is a hill to overcome. Mr. Fowler agreed that the situation is more difficult.

Nearly fifty concerned citizens, local officials and area farmers attended the February 11th “Informal Conference” held by the Illinois Department of Natural Resources Office of Mines and Minerals in Hillsboro at the Montgomery County Historic Courthouse.

Hillsboro Energy, LLC has submitted an application for a Significant Revision No. 2 to Permit 399 for Deer Run Mine.

Scott Fowler, Division Manager and Hearing Officer for the Informal Conference, listens to Larry Schraut at the podium. Larry farms land that is located in the shadow area in both the original and proposed expansion of Deer Run Mine. He questioned why IDNR/OMM would approve an expansion when they don’t know if the subsided land with drainage problems can be reclaimed as documented by the little progress that has been made on correcting the sunken areas of panels 1 and 2 after several years. Mr. Fowler commented that as long as the mine is fulfilling the obligations of its current permit, it has an opportunity to be able to expand its mining area.

An “Informal Conference” is supposed to be an opportunity for questions and answers regarding a new coal mine permit application, revision, or renewal. Per the federal Surface Mining Control, Reclamation and Enforcement Act an Informal Conference can serve to answer questions regarding a new mine permit so there is no need for a Public Hearing on the application.

Scott Fowler, Division Manager, Office of Mines and Minerals, IDNR and Hearing Officer for the Informal Conference.

Needless to say, citizens have also requested a Public Hearing as many of their questions were not answered. The Public Hearing has been scheduled by Illinois Department of Natural Resources, Office of Mines and Minerals on March 24th at 5 p.m. at the Montgomery County Historic Courthouse.

Below are some key issues and concerns raised at the Informal Conference:

1. In spite of being shut down due to an ongoing underground mine fire, the mine has applied for a 7,731.8 acre expansion for underground mining in the shadow area. This huge increase in available coal mining area is nearly double the size of the originally permitted underground mining area. Thousands of acres of prime flat farmland are included in this longwall mining application and hence will be subject to subsidence if this new permit is approved.

2. If Deer Run Mine is expanded, there was a request not to use the 2 existing impoundments for storage of coal waste. The two slurry impoundments upon failure would damage Hillsboro Lake and many homes and businesses as shown by the inundation maps.

3. Many citizens were concerned about water resources being contaminated and compromised to the extent that the stream could not be used for cattle or wildlife. After coal has been mined for 5 years at Deer Run Mine, surface waters around Deer Run Mine are contaminated as indicated by their high conductivity.

4. The mine also proposes to subside (drop the surface of the land unevenly four to six feet with permanent earthquake-like impacts) on the western edges of Coffeen Lake, which is an IDNR Fish and Wildlife area. Bear Creek and McDavid Branch will also be subsided. Although there will be material damage to water resources and farmland from subsidence, there is no additional bonding planned for the proposed expansion at Deer Run Mine.

5. Local farmers expressed again their concerns about long-term drainage problems and they questioned how subsided farmland would be reclaimed. It became apparent that there is no formulated plan on how the water drainage on subsided land would be handled and certainly no timeframe for completion.

6. Area citizens have worries that the mine processing plant producing air pollution and causing health risks would only be prolonged with an expansion. There is no change with the expansion in the lifetime air permit which does not monitor air on or off the mine site. Residents have endured coal dust, fumes, and noxious odors and these unhealthy events would be increased with the additional 7,731.8 acres.

7. With an approved expansion, the mine will be able to extract coal for several decades as long as Hillsboro Energy, LLC renews the permit every 5 years. The fiscal solvency of Deer Run Mine was questioned. There were worries about who would pay future costs of reclamation after the mine closes.

8. The potential of longwall mining under the land will lower area property values and quality of life. Many of the mineral rights of landowners were severed years, decades, or even a century ago from their surface land. The rights of landowners are superseded by the rights of Deer Run Mine.

Excerpts of citizen testimony and state agency responses are at the video link below, thanks to the work of Pam and Lan Richart of Eco-Justice, Champaign, Illinois.

Larry Schraut testimony.

William Schroeder testimony.

Important Public Hearing on the Deer Run Mine

Time:  Thursday, February 11th at 5:00 p.m.
Place:  Montgomery County Historic Court House, County Board Room, 2nd Floor

PROPOSED 7,731.8 ACRE EXPANSION OF THE MINE RAISES CONCERNS AS MINE FIRE CONTINUES TO BURN UNDERGROUND

Attend this Illinois Department of Natural Resources Public Informal Conference regarding the proposed mine expansion of Deer Run Mine. Comments and questions can be made at the meeting.

Questions that demand answers:

1. Even though the mining will be about 500 feet underground, the new, proposed 7,731.8 acre longwall mine expansion to the south will pull the coal out from a huge area, sinking much of the surface land up to six or more feet. The farmland will sink unevenly over a very large area. Who pays if farmers lose land productivity and if their farming costs go up because of this?
2. How can this new underground longwall mining area proceed when drainage problems in the existing longwall mined area are not resolved?
3. The proposed expansion shows the mine will sink or subside parts of the western edge of Coffeen Lake: what will sinking part of the lake mean to the IDNR Fish and Wildlife Area and the quality and quantity of lake water?
4. The proposed expansion map shows the lower reaches of McDavid Branch Creek will be sunk or subsided and it feeds into Coffeen Lake. What happens if the amount of water going into the Lake is reduced by ponding up stream?
5. What will IDNR do to ensure the mine fire area is sealed and the fire is stopped? How can state authorities allow Deer Run Mine to expand if the mine has not managed to put out its underground fire that has been burning since March, 2015?

This proposed 7,731.8 acre expansion is Deer Run Mine Permit 399 Significant Revision No.2.  A copy of the expansion application is located at the Montgomery County Clerk’s Office or can be viewed on the Illinois Department of Natural Resources web site, Mines and Minerals Land Reclamation.

Administrative Review Scuttled by IDNR again: Case Dismissed for Deer Run Permit 399 Significant Revision No. 1

There will be no hearing in October.

On September 1, 2015, IDNR Hearing Officer Jack Price filed his response to yet another Motion from the Bailey & Glasser Deer Run Coal Mine attorneys, Kim Fladhammer and Elizabeth Dow, and dismissed the case! 

BACKGROUND:

Five petitioners filed for the State Administrative Review of Significant Revision No. 1 in November of 2012, and through two hearing officers, umpteen delays and dismissal motions from coal attorneys, Cathy Edmiston remained as the only petitioner to carry the case with her attorney, David Wentworth, with Hasselberg Grebe Snodgrass Urban & Wentworth.

From June 22-23, 2015, Edmiston and experts for her case, Chuck Norris and Jack Spadaro, were on the stand before Hearing Officer Jack Price, but this was only part of the evidence hearing.  The second part of the hearing where experts called by the mine were to present evidence and be cross examined never happened even with June 24, 2015 scheduled for the hearing.  IDNR/mine experts, Scott Fowler and Dan Barkley, were to follow Edmiston’s experts.  Those two IDNR staff members were to answer questions about Significant Revision No. 1 of Permit 399. Hearing Officer Price scheduled the hearing to resume on August 5, 2015 when Fowler and Barkley would be on the stand and subject to cross examination.

Fladhammer filed on July 17, 2015  a request for rescheduling the August 5, 2015 hearing stating that her husband was having surgery on August 6th and she was needed  “for an extend period of time post-surgery while her spouse is unable to drive.” Price approved the motion and rescheduled the hearing to October 14, 2015.

There was a very curious series of events before Price dismissed the case on September 1, 2015.  On July 9, 2015, Price issued his response to a Motion filed by the mine on June 23, 2015, the last day of the Petitioner’s evidence presentation. Price affirmed that Edmiston had standing and denied the mine’s attempt to dismiss her. Price did agree with the mine that the issue of the Design of the Impoundment Structure, “is the type of structure contemplated by the rules, and is within the parameters defined by the rules,” so that issue was dropped from the case.

Price stated on the third issue, that

The Petitioner has shown, and Intervener agrees, [what] currently exists is a coal mine waste impoundment structure. The only evidence before me at this time is that, without being dewatered, it will remain an impounding structure after reclamation and this is prohibited by the rule. It appears from the permit application and both testimony and questions during this hearing and argument made to support this Motion, that the intent is to convert the impoundment area into wildlife habitat during the reclamation, without removing or breaching the dam and without dewatering. Petitioner’s attorney argues this is not permitted, and cites to 62 IAC 1817.84 b) 1) which clearly states the structure may not be retained permanently as part of the approved post-mining land use.  As no evidence has been offered (as yet) that the structure may be retained, I find that Petitioner has met her burden of showing at least temporarily, that the reclamation plan is in violation of the administrative rule. Motion to Dismiss the issue of reclamation as it applies to the impoundment structure is DENIED.”  

That was on July 9, 2015. What happened between July 9, 2015 and Price’s contrary decision on September 1, 2015?

On July 20, 2015, Price approved extending the hearing to October as requested by Fladhammer.  Due to vacation and other commitments IDNR staff and the other attorneys were not available until then.

On July 31, 2015, Fladhammer filed “Hillsboro Energy LLC’s Motion to Reconsider Order of July 9, 2015” which was basically yet another attempt to get the case dismissed. In it she asked Price to reconsider his rulings on the earlier oral motion to dismiss the case, giving the same reason as earlier, “for failure to state a claim upon which relief can be granted.” This was the same issue that Fladhammer had filed in June on the last day of the presentation of Edmiston’s experts. In her July 31, 2015 filing, Fladhammer states in section  ‘Argument III’ that the Petitioner  has presented all of her evidence and the matter is set to recommence only to hear Hillsboro’s evidence. She then went on to claim, “there has been no evidence as to the amount of damage – i.e., whether any such pollution would exceed state and federal standards of allowable pollution,” that would occur as a result of the issuance of this Permit. She went on to say the Petitioner has the burden of establishing her damage at the evidentiary hearing, “including the burden of proving her allegation that pollution would exceed the state and federal standards of allowable pollution.”  Fladhammer also listed that there was no evidence of any “actual or imminent” damage.

Wentworth filed a response on August 6, 2015. He pointed out that Hillsboro Energy, “recklessly cites to an unreported Federal District Court opinion on the requirement of an ‘actual or imminent injury’ for Article III in Fladhammer’s Motion to Reconsider. He pointed out that no other new point is raised for reconsideration. He also pointed out this is a state case and has nothing to do with federal court jurisdiction, and affirmed that the Hearing Officer’s decision of July 9, 2015 regarding standing under Illinois law is correct.

In a surprise turnaround, Hearing Officer Price changed his previous responses regarding the sole remaining Petitioner, Cathy Edmiston, and on September 1st, decreed that,

I further find that Intervener [the mine] is correct in the assertion that Petitioner must show actual damage, and such damage must be beyond the bounds of the damage permitted by government agencies. While I have little doubt that Petitioner’s land will, more likely than not, eventually be polluted by waste from Deer Run Mine, a certain amount of waste pollution is allowed by law, and there was no evidence that any pollution will probably exceed such allowance” and he GRANTED the Fladhammer Motion to Reconsider in its entirety, and stated, “this matter is therefore DISMISSED.”

What the Hearing Officer missed was the entire point of the case, which is the contents of the coal slurry impoundment are still wet, and will continue to have rain and moisture infiltrate through the dirt and coarse coal refuse “cap” after it is full of residue. And at some point the liner will leak, and the sand lenses known to be scattered underground where the high existing water table will produce a huge pollution problem for future generations.

Ironically, the mine’s claim that there was no evidence provided to determine the amount of damage or whether any such pollution would indeed exceed state and federal standards, was factual since a prior ruling of Price disallowed analyses of water samples taken during an onsite inspection by Norris and Spadaro on July 24, 2014.  The outcome of the Administrative Review was unfortunately determined by what evidence was allowed to be submitted.    

Administrative law can certainly be abused and the rulings unjust.  The result is that IDNR’s regulatory authority validates its own permits to the demise of coalfield citizens and the environment.  The way that an Administrative Review is conducted in Illinois substantiates some of the issues discussed in Philip Hamburger’s book, “Is Administrative Law Unlawful?”

As the title of this article states, the disappointing end to the Administrative Review of the Significant Revision No. 1 of Permit 399 was the second time that petitioners’ concerns did not receive the rule of law. There never was an Administrative Review of Permit 399 although there were many petitioners who struggled to get facts, evidence and expert testimony before a hearing officer. Under IDNR Hearing Officer Michael O’Hara, there were delays and nearly a year of an extended hiatus.

The Permit 399 Administrative Review was finally taken over by Hearing Officer Robert Welch after nearly a year of inaction.  On October 31, 2013, Welch dismissed the case based on a Motion from the mine regarding the failure of the Petitioner’s attorney to file certain documents by the required dates. This was complicated by the fact that Welch never recognized that the previous Hearing Officer O’Hara had declared the dates in the case were on hold until an issue of Sanctions filed against the Petitioners be resolved. IDNR had filed a Motion for Sanctions with threats of monetary penalties and other potential legal actions against the citizens and their attorney on December 23, 2010. Welch did not respond to the IDNR Sanction Motion nor did he even officially approve the 2011 request by the Petitioners to recognize a substitute attorney until September 26, 2013.  Remarkably, this was already after the date the mine cited for failure to respond which was what led to the dismissal ruling.  This procedural exercise in futility lasted 4 1/2 years, from March, 2009 to October 31, 2013.

The outcome is a longwall mine in the city of Hillsboro, Illinois that will be forever blight to the community with damage to health, threats of impoundment failure and leakage, contamination of water resources, and subsidence of farmland and roads. 

Hearing Officer Jack Price Response to Motion to Dismiss

Coal in Montgomery County: Deer Run Mine versus Citizens?

The past 6 years have been good for Deer Run Mine. Not so much for citizens in the community. As such, the West Virginia Syndrome of coal production at any cost is well established in Montgomery County. Coal has been mined, processed, and transported out of Deer Run Mine for profit. At the same time, Montgomery County pays the price. Dust has continued to migrate off the mine site along with polluted water discharges to Central Park Creek. Subsidence has affected roads and farm fields. The first 140-acre impoundment is essentially full of coal slurry now and has visible leakage from the sides of the coarse coal walls. This 80 foot tall high-hazard dam threat will be in the community forever and will be joined very soon by an even larger blight with the help of the Department of Natural Resources.

A second high hazard dam impoundment that covers 318 acres and will be 60 feet high will be even closer to citizens and the hospital. The construction of this high hazard dam was proposed and approved with Permit 424. The NPDES permit for the second impoundment just recently was approved by the Illinois Environmental Protection Agency. What does this mean for residents? First, residents should realize that legislators and government agencies have been captivated with coal production. The defense of coal and its historical and future value are alive and repeated over and over. “Clean coal” summarizes the untrue myth that wants to establish all the damage from mining, combustion, coal ash and carbon dioxide production does not exist or can be corrected.

The major problem recognized from coal is its carbon dioxide production when burned and therefore a contributor to climate change. That does not begin to represent the reality of coal. Even climate change, unfortunately, is disputed by corporate interests and their lobby influenced legislators who financially gain from coal promotion. The production of carbon dioxide is just one of the many problems with coal use.

The total reality of coal must be recognized and dealt with. The toxicity of coal dust has been denied, covered up, and ignored. The reality is that Montgomery County residents breathe the air that contains particles from coal on a daily basis.  Children and elderly are especially vulnerable. Tragically, inadequate procedures in permits approved by IDNR and IEPA do not prevent fugitive emissions from migrating beyond the mine perimeter, and there is no monitoring on and off the mine site to establish compliance.

The Montgomery County Board and many residents in the county have reported to the IEPA and US EPA problems with coal dust in their homes and have requested air monitors to be placed in the community at the hospital and nursing home. Mr. Brad Frost in a letter of October 10, 2014 from the IEPA responded with the comment, “In regard to monitors, they will not prevent fugitive emissions from the pile, nor will they quantify emissions for compliance or enforcement purposes.” That statement was very disconcerting. Indeed, what should be done to force compliance and enforcement if no monitoring is occuring?

Illinois officials when confronted with this health issue as well as other coal impacts consider the problem as “political.” This term describes the inability for communities to have serious concerns addressed by the very officials who are responsible for enforcing statutory provisions. The reality is that coal mining laws in Illinois conform to the needs of coal operators, not to the needs of the community. This prerogative of laws by corporate manipulation of government has been dubbed by Iowa voters as “Governing Under the Influence.” The grassroots group called American Friends Service Committee has a goal of returning the power of government back to the people. Kevin Rutledge, the AFSC Education Coordinator, stated, “Our government is under the influence from corporate power and money and not under the influence from the people.” (http://www.publicnewservice.org/2015-02-06/budget-policy-and-…)

In Illinois and other coal producing states, the practice of coal operators is to inundate the government officials with campaign cash and enormous lobbying clout. The power of the vote is no match to the power of money; the power of people has yet to be realized.