Mining decision challenged as illegal

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PHOTO BY PATRICK YEAGLE

Catherine Edmiston

Catherine Edmiston

PHOTO BY PATRICK YEAGLE

An 11-year legal battle over a coal mine 40 miles south of Springfield continues as one woman claims the Illinois Department of Natural Resources didn’t follow its own rules.

The case questions how coal mines clean up their mining sites, but the plaintiffs say they’re fighting against a system that favors the coal industry.

Catherine Edmiston is leader of a group of Hillsboro landowners called Citizens Against Longwall Mining (CALM), which challenged in 2004 the permit for the nearby Deer Run mine. Many members of CALM who challenged the mine’s permit were dismissed from the case, leaving Edmiston as the primary plaintiff.

Edmiston’s property is a farm outside Hillsboro. She says the mine’s waste impoundment dam will continue to leach pollution into the nearby Shoal Creek watershed forever, endangering her land, several drinking water wells and the watershed’s biological diversity.

Waste impoundment dams are above-ground structures made of soil or mine refuse, used to hold coal slurry – a mix of water, coal dust and chemicals resulting from cleaning coal. Some impoundment dams contain liners to prevent pollutants from leaching into the soil, but the impoundment at the Deer Run Mine has no such liner, instead relying on compacted soil. Under state and federal regulations, coal waste impoundment dams are only allowed to be temporary.

Instead of removing the dam, Hillsboro Energy, the company operating the Deer Run Mine, proposes to cap the semi-solid material in the dam with clay and topsoil, turning it into a wildlife area. DNR approved the plan, but Edmiston and CALM want Hillsboro Energy to remove the dam or install an impermeable liner to prevent pollutants from leaching into the groundwater.

Hillsboro Energy is a subsidiary of Foresight Energy, which is owned by coal magnate Chris Cline. The company claims that Edmiston and other landowners don’t have legal standing to challenge the mine’s permit, that the impoundment is properly designed, and that the “remediation plan” for the impoundment is sufficient. Joliet attorney Kimberly Fladhammer, who represents Hillsboro Energy in the case, could not be reached for comment.

On July 9, administrative hearing officer Jack Price ruled that Edmiston does have standing to challenge the company’s plan for its waste impoundment. Price found that the design of the dam meets regulations, but he also ruled that, because the dam will continue to allow water in and out even after it is capped, the structure will continue to be a waste impoundment indefinitely, in violation of the regulations.

However, on Sept. 1, Price issued a new ruling which dismissed Edmiston’s case “upon reconsideration and after researching case law.” In the reconsidered ruling, Price reasoned that, because an expert witness said there are hundreds of such impoundment dams remaining around the nation, the intent of the regulation must be to allow dams to remain in place permanently.

“While I have little doubt that [Edmiston’s] land will more likely than not eventually be polluted by waste from Deer Run Mine,” Price wrote in his Sept. 1 order, “a certain amount of waste pollution is allowed by law, and there was no evidence that any pollution will probably exceed such allowance.”

On Oct. 5, Edmiston filed a lawsuit in Montgomery County Circuit Court challenging Price’s order and claiming Price engaged in ex parte communications with DNR and Hillsboro Energy without giving her a chance to respond. Such off-the-record conversations are forbidden in administrative proceedings because they can give an unfair advantage to one party. Edmiston also claims that Price ignored factual evidence presented during hearings and denied her the right to a site inspection as provided in state law, among other claims.

Edmiston referred questions about the case to her attorney, David Wentworth of Peoria, who could not be reached for comment.

Contact Patrick Yeagle at [email protected].