Category Archives: BLOG

Catherine Edmiston Memorial

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Catherine Edmiston

Catherine Edmiston
December 6, 1929 ~ August 6, 2017

Catherine Edmiston: Reasons to Believe

By Jeff Biggers

“To sin by silence when they should protest makes cowards out of men.”

–Ella Wheeler Wilcox, American poet

“I rest in the grace of the world, and am free.”

–Wendell Berry, American poet

Catherine “Cathy” Edmiston, friend, writer, farmer, teacher, community advocate,  quilter of communities:

In the heartland, she brought grace to the world, and a clear voice to our dirt roads, fields of corn and dreams, town centers, school rooms and state houses;

The last remaining petitioner fighting for justice regarding the revision of permits for the massive and toxic Deer Run coal slurry impoundment, taking the stand to testify against the phalanx of coal company legal teams and sycophantic state officials in the summer of 2015;

A relentless whistleblower who forewarned the Hillsboro community and central Illinois region about the safety of the Deer Run Mine longwall mine–which has remained idle for two years, as fires raged below and carbon monoxide levels triggered alarms;

A muckraker who exposed the corruption of the regulatory mining processes that legally allowed for violation-ridden mining practices, including violations of the Clean Water War, violations of the Surface Mining Control and Reclamation Act of 1977, and untold violations of state regulations and laws;

A justice seeker who forewarned against reckless absentee corporate policies that resulted in violations of Worker Adjustment and Retraining Notification Act, engagement in sexual and gender discrimination, and violations of safety precautions for miners and surrounding communities;

In an interview with the Illinois Times in 2015, Cathy nailed the dilemma of our times, living in a state of constant violations: “Citizens shouldn’t have to hire a lawyer,” Edmiston said, “to make the corporations follow the law.”

Catherine Edmiston gave us a reason to believe in the still small possibility of justice for our communities.

 

Jeff Biggers is a noted and accomplished author of several publications including “Reckoning at Eagle Creek” and most recent, “The Trials of a Scold.”

 

Citizens Working to Improve Coal Communities in Montgomery County

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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 2% royalty rate is also too low for any growth potential in Montgomery County. In fact, the 2% 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.

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

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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?

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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.

Fracking Added to Coal Mining in Illinois Will Compound Environmental Impacts

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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.