The 5 year renewal of Permit 399 for Deer Run Mine is under consideration by Office of Mines and Minerals (OMM) in the Illinois Department of Natural Resources (IDNR). For over 4 years, Citizens Against Longwall Mining (CALM) and Sierra Club petitioners never got to present their experts or present their full case against this permit. The petitioners against Permit 399 were dismissed on Halloween 2013 by a new IDNR Hearing Officer. It was fitting that the dismissal occurred during IDNR’s Halloween costume parade since the petitioners had already experienced several years of horror and disbelief on the Permit 399 challenge.
The reality of the 4-year battle to challenge Permit 399 with IDNR/OMM involved: an adversarial relationship, dismissal of petitioners on questionable basis, prolonged delays, and stonewalled and unfulfilled FOIA requests. The most threatening action of IDNR/OMM was its request to Hearing Officer (H. O.) Michael O’Hara to sanction the petitioners and our lawyer after a Summary Judgment filing was submitted in July, 2010. After this filing, eight motions were left unanswered by Mr. O’Hara and our case remained on a hiatus for over 2 years. A new IDNR Hearing Officer was assigned to the case and began issuing a response to motions in 2013.
In September 2013 the sanctioning threat motion to our first lawyer was answered and it acknowledged the entry filing made in February 2011 of David L. Wentworth II, the lawyer filing to represent the petitioners. The second IDNR Hearing Officer did not dismiss the sanctioning threat to the petitioners. Without answering other pending motions, the petitioners were dismissed with the stated reason that their attorney had not met a filing deadline. Subsequently, attorney Wentworth, acting for the petitioners, filed an appeal on the Halloween dismissal with IDNR and also filed a Complaint for Administrative Review with the Circuit Court of Sangamon County.
There have been 4 permit applications to OMM by the Deer Run Mine company Hillsboro Energy LLC (HEL): original 399 Permit, Significant Revision 1 of Permit 399 for impoundment 1, Permit 424 for the 2nd impoundment, and renewal of Permit 399. Citizens are greatly concerned about the power of OMM to make changes that it deems acceptable to coal mining permits as “Insignificant Revisions” which are not placed on public notice and have no comment opportunity. At Deer Run Mine, as of January 2014, there are 12 Insignificant Permit Revisions and 6 Insignificant Boundary Revisions for Permit 399.
Citizens feel that OMM delayed and impaired their public participation as established by state and federal mining laws. The administrative review process should have been handled in a timely manner, accepting of concerned citizens’ involvement, and open to freedom of information requests. It is the responsibility of IDNR to hire an appropriate hearing officer to conduct the Administrative Review, but there were delays and a 2 year hiatus of the first hearing officer.
Many issues and inadequacies of Permit 399 exist. These include additional safety and environmental threats resulting from coal production and Deer Run Mine expansion to a proposed 2nd high hazard dam coal slurry impoundment. OMM never addressed the inadequate cumulative hydrologic impact area and unlisted stream tributaries that HEL presented in the Permit 399 application. The drainage problem of subsided farmland and the permeation of coal dust in the atmosphere are still facing the community.
The potential for groundwater and surface water contamination, including Old Hillsboro Lake, is increased by ignoring hydrologic issues and location of impoundments. The likelihood of failure and leakage will only multiply over time, which is a permanent problem for the community since the impoundments plus coal slurry will remain in place covered with soil in perpetuity. Failure of the impoundments would inundate portions of Hillsboro, Schram City and surrounding area with millions of gallons of noxious coal slurry according to the maps presented by the coal company in their permit applications.
If justice were the issue; it did not occur. The opponents to 399 had no idea of the coming intimidating legal ramifications and the resulting economic and personal stresses that included “sanctioning” by the state. Sadly, intimidation by IDNR/OMM is employed as an effective approach in squelching individual objections to Deer Run Mine. The community, health of residents and the environment are still at risk; so once again IDNR/OMM’s “unique” application of state and federal mining laws enhanced coal profits on the backs of citizens.
For the reader on your Christmas gift list, “The Price of Justice” is a heart wrenching true story of the pervasive effect of coal mining on West Virginia’s citizens. This book has special relevance for citizens that live with coal mining and recognize its influence on their community, government, and judicial system.
The personal struggle of two lawyers to bring justice to the victims of a powerful coal baron in West Virginia will captivate and inspire the hope that all of us have for the oppressed and powerless.
Dave Fawcett, a 3rd generation Pittsburgh attorney, and Bruce Stanley, raised in West Virginia, now a Pittsburgh attorney, took on the challenge of rectifying the injustice that Hugh Caperton and his Harmon Mining Company were subjected to by Don Blankenship, Chairman and CEO of Massey Energy.
Caperton took on a tremendous debt to acquire Harmon Mining and he cared deeply about making it successful for his family and employees. The loss of his mining company was devastating to him, but there was some comfort in the verdict of two juries that Blankenship was liable for fraudulent misrepresentation, concealment, and interference with contractual agreements.
Blankenship controlled the largest coal company in Appalachia, 4th in the nation with revenues of 2 billion in 2008. This book describes his powerful influence that was extensive throughout the state. He flexed his control with the help of friends in the court system. Blankenship was determined to destroy the United Mine Workers Union and with the help of a circuit court judge, Elliot Maynard, they together stopped a lengthy strike and diminished UMW’s influence with the miners. In 1996, Maynard was elected to a 12 year term in the West Virginia Supreme Court of Appeals which placed a friend of Blankenship in even higher places.
Although Fawcett and Stanley were awarded 50 million dollars in damages for Caperton, Massey appealed the ruling to the West Virginia Supreme Court of Appeals. The reader will marvel at the timing of the appeal to reverse the jury decision that was filed after an election in which Blankenship spent 3 million dollars to remove an incumbent and to elect Brent Benjamin. The court now had a more pro-business leaning, especially with Blankenship’s old friend, Justice Maynard and indeed the 50 million dollar verdict against Massey was reversed. Caperton had filed a request for Benjamin to recuse himself due to Blankenship’s financial support of his election, but Benjamin refused to disqualify himself.
Fawcett and Stanley thought the only way to get justice for Caperton was to be heard by the U. S. Supreme Court, but the chances for that were very slim. Certain events, however, occurred that changed the interest in Caperton and made it a federal issue.
Caperton et al. v. A. T. Massey Coal Co., Inc. was brought before the U. S. Supreme Court to address the issue of potential bias of Benjamin that denied due process to Caperton by reversing Massey’s 50 million dollar judgment by the West Virginia Supreme Court. The vote of the U. S. Supreme Court was 5-4 with Justice Kennedy providing the swing vote that concluded Benjamin should have recused himself. After the victory for Caperton, the case was presented again to the West Virginia Supreme Court. Here, incredibly, the damages against Massey were dismissed again in a 4-1 vote. Massey and the coal baron prevailed and continued to dominate West Virginia politics.
The author relates how Blankenship insisted that coal be mined at any cost which created many hazards for the miners and several tragedies resulted. Two miners, Don Bragg and Ellery Hatfield, died in a fire at the Aracoma Mine owned by Massey. The safety issues that were thought to cause the fire were never addressed, and maximal production of coal at any cost continued. In longwall mining, there is continual formation of dust that must be covered or removed to prevent fires that could upon contact with methane gas explode. This is what happened on April 5, 2010 at the Upper Big Branch Mine in Montcoal, West Virginia. Twenty-nine miners were killed; since 1995, Upper Big Branch had been cited over 3000 times for safety violations with 2 given the day of the explosion.
Read how eight months later, Blankenship left Massey with a 10.9 million salary plus benefits and a 39 million retirement package. He left hundreds of residents with contaminated drinking water that resulted from his initiation of coal slurry injections into mine voids. The devastation in West Virginia of lost lives, lost mountains, and loss of community will endure; that is Don Blankenship’s legacy.
The story of politics, money, and greed is developed artfully and placed in context of a hard working community that is only trying to survive. Hugh Caperton kept going with the knowledge that by fighting Blankenship, he was doing the right thing for West Virginia. He showed true courage, conviction, and tenacity, but never received justice.
- Hardcover: 448 pages
- Publisher: Times Books; 1St Edition edition (May 7, 2013)
- Language: English
- ISBN-10: 0805094717
- ISBN-13: 978-0805094718
- Product Dimensions: 1.4 x 6.4 x 9.3 inches
The outside temperature went up to 90 degrees, but CALM volunteers had free iced-cool water for the public, a fan-cooled tent, and some pretty cool displays at the downtown Hillsboro Old Settler’s street fair and celebration, August 21st and 22nd.
Special Thanks go to lead CALM volunteer in organizing the event, Mary Ellen DeClue. Her energy and enthusiasm kept everyone going. Many volunteers made this effort possible, with providing tables, chairs, and other support. In spite of the 10 p.m. finish on a very hot August 22nd, seven dedicated sets of volunteer hands made quick work of packing things up. Several CALM members stopped by the booth during the days to provide fans and support. Chocolate chip cookies were provided by Chair Cathy Edmiston, who helped staff the display and handed out water bottles. Cathy and volunteers handed out cold water to over 200 people.