Category Archives: Uncategorized

CALM Comments to OSMRE RE: Stream Protection Rule

Posted on by

Office of Surface Mining Reclamation and Enforcement
Administrative Record, Room 252 SIB
1951 Constitution Avenue, NW
Washington, DC 20240

RE: Docket ID: OSM-2010-0018, Proposed Stream Protection Rule,
80 Fed. Reg. 44436 (July 27, 2015)

The proposed stream protection rules should be implemented, and in addition, appropriate requirements that would mandate full compliance with the Clean Water Act should be enacted. Moreover, material damage produced from mining should include not only water resource damage, but total economic loss to coalfield citizens.

There are 2 active coal mines near the homes of Citizens Against Longwall Mining members. Shay 1 Mine in Carlinville, Illinois and Deer Run Mine in Hillsboro, Illinois. Both mines have contaminated water resources, damaged farmland and diminished air quality.

Shay 1 Mine, the prior Monterey 1 Mine owned by Exxon-Mobil, was purchased by Chris Cline/Foresight Energy Group and approved in 2009 for active coal production. Monterey 1 Mine had contaminated groundwater and off-site surface waters for many years due to leakage from 2 coal slurry impoundments. It is unacceptable that the water violations did not prevent the Illinois Department of Natural Resources/Office of Mines and Minerals from approving the permit that allowed additional coal slurry to be placed into the offending impoundments.

IDNR/OMM proceeded over time to approve importation of coal ash and to establish underground coal slurry injection at Shay 1 Mine. The unacceptable contamination issues still exist and this has resulted in the Attorney General’s Office decreeing a trench assembly to be constructed to facilitate the pumping of contaminated water for treatment prior to discharge. This has not been established yet, but is planned.

There is a pending permit (Revision 11 of Permit 56) that would expand Shay 1 Mine by 10,015 acres. Many residents in Macoupin County are very concerned about the proposed plan to room and pillar mine under the 2 Gillespie Lakes that are the only drinking water resources for thousands of residents. IDNR/OMM routinely rubber stamps coal mine permit applications regardless of citizens’ objections and risks. Citizens are legitimately concerned that 40-50 years later there will be subsidence with no bonding available to compensate for damage. They have already lost an almost newly built school due to subsidence from prior coal mining. The coal operator that produced the subsided mine voids was no longer in business. The legacy costs of coal are not addressed for communities that have unplanned subsidence and ground water damage that will occur for future generations.

Deer Run Mine is also owned by Chris Cline/Foresight Energy with recent financial holdings by Robert Murray Energy. This longwall mine is located in the City of Hillsboro, Illinois with the coal processing plant next door to Hillsboro Hospital, a nursing home, and a day care center. The mine discharges into Structure 5 that flows into Central Park Creek and meanders through Hillsboro past the Middle and High Schools. The chemical content, concentrations, and total accumulation from the mine discharge are not known, but the electrical conductivity of water in Central Park Creek is high and at unacceptable levels. Water quality standards are seriously not being protected with the present regulations as applied in Illinois.

The damage to farmland by subsidence from longwall mining has not only been a nonissue, but the proposed methods to mitigate the 5-6 feet sunken areas are absent from approved Permits 399, Significant Revision 1 of 399, and Renewal of 399, and Permit 422 . There are still no proposed drainage plans after 7 years beyond the promise that these problems will be managed. IDNR/OMM ignored the Montgomery County Soil and Water Conservation’s concerns about drainage issues from subsidence and its suggestion that the first impoundment be relocated out of the watershed of Hillsboro Lake, a public drinking water source. Long term, longwall mining will severely affect the agricultural industry in Illinois since coal is located in two/thirds of the state.

One of the most dangerous legacies in Montgomery County is the permanent placement of the coal slurry impoundments in the community. Hundreds of acres of cropland are lost to coal slurry impoundments that can leak, erode coal dust, and fail over time. There was no risk assessment in determining the location of Deer Run Mine’s second impoundment that upon failure will inundate the City of Hillsboro to the west, Schram City to the north, several major streams and hundreds of acres of farmland to the south, and the first coal slurry impoundment to the east. This inundation threat and forever risk to several communities reflect the tragic, inappropriate, and harmful control coal has on our regulatory agencies.

Through manipulation by the coal industry and a lack of enforcement by regulatory agencies, there is a failure of proper protection of coalfield communities. The fact that under SMCRA the Clean Air Act is not enforced and fugitive emissions are a nonissue is an insult to the health and development of a community. The health damage from particulate matter alone is well established, but coal dust has harmful metals and carcinogenic polycyclic aromatic hydrocarbons that endanger health even more. Coalfield citizens tragically do not have their right to a healthful life as should be ensured and protected by regulatory agencies.

If coal mining is to mitigate its damage in the U.S., the health, safety, and financial well being of communities must be protected by federal mining laws and enforced by state regulators. Stronger enforcement of SMCRA is essential for the quality of life in communities and the continued extraction of coal.

Thank you for your many efforts and for proposing the new stream protection rules.

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

Posted on by

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

Deer Run Slurry Impoundment Hearing

Posted on by
Deer Run Mine Significant Revision No. 1 case
State Administrative Review, with Cathy Edmiston the remaining petitioner fighting for justice regarding the huge coal slurry impoundment Significant Revision No. 1.
Wednesday, Oct. 14th, 9 a.m. at the IDNR headquarters Springfield

Community Reinvestment in Illinois’ Heartland

Posted on by

Tuesday, March 10, 7 PM.

Montgomery County Farm Bureau
102 North Main Street,
Hillsboro, Illinois

 Community Reinvestment in Illinois’ Heartland

comm-reinvest-photoYou are invited to attend a listening session, designed to foster discussion on possibilities for creating economic, environmental, and socioeconomic sustainability in Illinois’ heartland.

The program will include a short presentation that illustrates how an economy based primarily on coal also has significant social costs and long-term liabilities. Following the presentation, together we will explore alternatives that can lay the groundwork for vibrant and diversified economies in places historically tied to the “boom and bust” cycle of coal.

  • Bring your ideas for diversifying the economy in your town and county.
  • Learn what other coal-mining communities are doing to build on their history and resources to create jobs and prosperity.
  • Take home a fact sheet that you can share with your friends, family and colleagues.

Contact phone number is 217-324-4444.

Fracking Added to Coal Mining in Illinois Will Compound Environmental Impacts

Posted on by

High pressure/volume fracking is a growing concern in Illinois. The Public Act 098-0022 (SB-1715) signed into law by Governor Quinn on June 17, 2013 is touted to have safeguards more stringent than other states.  If, however, regulations are loosely interpreted, applied and enforced much like the coal mining laws are handled by IDNR/OMM and the IEPA, the health of residents and quality of the environment will suffer.  Lax enforcement policies may well negate any purported safeguards, and Illinois coal is one such example. Residents in Illinois coal mining communities have few safeguards with regulatory agencies that allow coal mining to operate without adequate monitoring and testing to establish whether mining is compliant with the Clean Air Act and the Clean Water Act. This leaves citizens with no adjudicatory evidence.  Deer Run Mine in Hillsboro, Illinois is a mine that has a life time air permit that does not mandate any air monitoring or testing on or off the mine site.  IEPA has not enforced the use of stacker tubes as listed in Deer Run Mine’s permit  even with residents’ complaining of coal dust in their homes and hospital. Surface waters are threatened by discharges from the mine that empties into Central Park Creek which flows through Hillsboro, Illinois with harmful chemicals that are not monitored.  IDNR/OMM facilitates the coal operator to produce cheap coal, but disregards the health risks to citizens, the contamination of air and water, the threat of permanent impoundments, and lower production from subsided farmland. An insightful article by Philip Gregg titled, “How Safe Is Hydraulic Fracturing?” was published in the August 14-20, 2014 issue of Illinois Times.  The author discussed why there is controversy and lack of validation over the safety of fracking.   Gregg wrote that in most oil and gas producing states, “lobbyists and others have neutralized the regulatory processes.”  In Illinois this has already happened with regard to coal.  A citizen’s right to petition his/her concerns in an administrative review of a coal mining permit is stifled in an adversarial process that has existed for years.  The manner in which IDNR handles mining laws denies citizens their rights to protect their community as established in federal mining laws.  The firewall established through administrative law is problematic due to the resulting absolute and unchecked power, especially of an agency captured by the very industry it regulates. The legality of administrative law has been questioned in a recent book by Attorney Philip Hamburger.  His book titled “Is Administrative Law Unlawful?” reveals the historical and legal background of administrative law that he considers to be unconstitutional, unlawful, and illegitimate.  He thought a more appropriate term for administrative law would be extralegal power.  Any citizen in Illinois that has tried to participate in an administrative review of a coal mining permit would concur and recognize the injustice that is absolute and insurmountable. As a concerned citizen, I have listened to different IDNR/OMM representatives defend their coal position with some rather alarming statements such as the following.  Water quality, health issues, and air quality are not their purview.  Lower property values due to coal contamination in your home are consider a tax benefit!!!  High hazard coal slurry impoundments no longer exist after covering with soil, thereby meeting the “removal mandate” of SMCRA, the federal mining law.  Underground coal slurry injection is better than an above ground impoundment and will not contaminate groundwater as happened in West Virginia. Such misinformation is double talk for a failure to provide a healthful environment as required by the Illinois Constitution. Neither underground coal slurry injection nor high hazard dam impoundments are environmentally safe, but the profit margin of the coal operator determines how coal slurry is created and handled. The 60-80 foot high rise dam impoundments with toxic viscous slurry remain as a threat forever in a community. The safest approach is to process coal using minimal water and mining chemicals.  A dry method or coal press could be used to process the coal that would minimize pollution by producing less or no slurry, but would lower coal profits.  Presently, West Virginia has a moratorium on coal slurry injection and a decline in permits approved for impoundments.   Illinois should recognize the damage in West Virginia from coal slurry injection and permanent impoundments and protect Illinois communities. Best management practices, as listed in coal mining permits, really means the lowest possible expense for the coal operator.  Will best mangement practices for fracking also be motivated by profits?  This attitude translates to producing excessive and unnecessary permanent damage to communities.  There are no severance or extractive fees for coal; yet, Illinois taxpayers are taxed to support future clean up for this “legalized pollution” and for subsidies to coal. The proposed fracking regulations in Illinois does have an extractive tax, but will it be sufficient to compensate for permanent damage to water and land? If Illinois fracking operations receive the same preferential treatment by the regulatory agencies as bestowed on coal, communities will continue to endure unnecessary taxes to cover the hidden costs of coal and now together with fracking will experience diminished health and quality of life. Citizens must stand up for their quality of life and sustainability of their communities.  The coal and fracking industries with the assistance of IDNR and IEPA will continue to damage our health and environment if we let them.  Remember, it is up to us to safeguard our environment. May your concerns be heard and echo through city, county, and state offices.