Category Archives: Hearings

Montgomery County Residents Express Concerns Over Deer Run Mine Expansion

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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

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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

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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

Deer Run Hearing Underscores Citizens’ Frustrations

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The proposed toxic coal waste impoundment will be nearly twice the size of the existing one pictured here.

The proposed toxic coal waste impoundment will be nearly twice the size of the existing one pictured here.

The Hillsboro Energy, LLC Deer Run Mine located within the city limits of the City of Hillsboro in Montgomery County has been a source of frustration for area residents since its inception nine years ago. The June 4th, Illinois EPA permit hearing regarding pollution discharges from a new, giant coal waste disposal area at the mine was no exception.

Read more . . . .

 

DEER RUN MINE AFTER FIVE YEARS: WHAT WE KNOW NOW

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Many residents in Montgomery County have now experienced the harm from the operations at Deer Run Mine for the last 5 years. If residents are unhappy with the first 5 years of Deer Run Mine operation, they will pretty much experience the same daily interactions, with perhaps more intensity. Illinois Department of Natural Resources/Office of Mines and Minerals recently renewed Permit 399 for another 5 years and the Illinois EPA will also be extending the National Pollutant Discharge Elimination System water permit. The Illinois Environmental Protection Agency lifetime air permit still has no monitoring of particulate matter in the community and still requires only calculations of dust at the mine site.

Permit 424 was just approved, so the 2nd high rise coal slurry impoundment will soon start to be constructed after the water permits are approved.   The public hearings for the 2 water permits will be held June 4, 2014 at Hillsboro High School by the IEPA. The NPDES Permit for the 2nd impoundment will be held at 5:00 P.M. The water quality 401 Certification public hearing for the 2nd impoundment and its impact on our economy will be held at 7:30 P.M.

Coal processing does not have to result in a coal slurry impoundment, but IDNR/OMM as we all know approves whatever Hillsboro Energy LLC (HEL) requests. Lessons learned from the impoundment problems at Shay 1 in Carlinville, Illinois, Monterey 2 in Germantown, Illinois and the many impoundments in West Virginia show that Illinois citizens will pay a high cost in the long term.

The many concerns about coal dust, noise, water contamination, health issues, property values, and traffic delays, will continue and will be enhanced with construction of the 2nd impoundment. There will be no additional monitoring or testing of chemicals in the air or water resources even with the expansion.

All of the discharges from the 9 mine outfalls pass through an unlined water reservoir called Shoal Creek Watershed Structure Five, overflow into Central Park Creek, continued through Hillsboro, and finally empty into Middle Fork Shoal Creek. The discharges from the mine interact with surface waters in the county, but no monitoring of the most harmful components of coal is required. HEL does not acknowledge that harmful metals like arsenic, chromium, lead, selenium, etc or any organic toxic compounds like polycyclic aromatic hydrocarbons exist in coal and as a result it is not required to analyze for these toxic substances in surface water samples. At least that is what was submitted by HEL to the IEPA on the application for the NPDES water permit for Deer Run. See 3 pages of the NPDES application submitted by HEL for Permit IL0078727 that denies the presence of harmful metals other than mercury and denies the toxic hydrocarbons in coal.

The development of Deer Run Mine was encouraged by Roger Dennison, the President of HEL, who emphasized economic growth in this area. He still works for Chris Cline/Foresight Energy, but mainly at Shay 1 Mine in Carlinville. The tragedy of Deer Run Mine is the lack of protections from coal contamination in the community; IDNR/OMM and IEPA have failed to require adequate testing and monitoring.

The mine has been here for 5 years, and we still seem to have the same economic issues. Looking back at the financial relationship among Deer Run Mine, Montgomery County and the City of Hillsboro, there are reasons to believe that economic benefit did come, but not to the city or county. The city and county officials tried to enhance and better the community by promoting the mine, but some negotiations were not in the best interests of the citizens. The mineral rights to 120,000 acres in Montgomery County that sold to the Chris Cline Group for 7.2 million were resold later for approximately a quarter of a billion dollars. Hillsboro airport was sold as undeveloped land with devalued buildings not appraised as a licensed, functional airport. During the construction of Deer Run Mine, the bills were paid by the city and later reimbursed by the Chris Cline Group without any compensation to the city. The taxpayer is covering the security and emergency management training costs for Deer Run Mine. Over 20 homes have been torn down and subsidence of land and roads are happening. Coal dust, noise, 2 high rise dam impoundments, and traffic delays will further devalue property values and quality of life.

Politics has played a detrimental role in life and death decisions related to coal mining. Chris Cline/Foresight Energy Group moved into the Illinois coal basin with the same determination it used in West Virginia. According to public records, large sums of money were contributed to campaigns of Illinois officials by this corporate interest prior to and during pending coal permit applications. IDNR/OMM has failed to fulfill its mission to the citizens of Illinois. Read more at these links:

http://www.huffingtonpost.com/jeff-biggers/illinois-residents-file-i_b_5026732.html

http://www.sj-r.com/article/20140418/NEWS/140419404/0/SEARCH

The mine has been considered as an economic boom to Montgomery County by some, but a health hazard and unacceptable environmental concern to others. It seems that the monetary gain of coal royalty payments would be valued more if HEL were required to confine the fugitive coal dust to the mine site and have air monitors in the community to establish that it is in compliance. If Central Park Creek and Middle Fork Shoal Creek would be monitored for all of the harmful chemicals in coal, the community would surely appreciate the knowledge that its surface waters are not being contaminated.

Will citizens demand the environment they deserve and the support from regulatory agencies they should have?