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Around the turn of the millennium, southern Illinois environmental consultant Bob Johnson would drive by a six-story-high grassy plateau and imagine the ways the reclaimed coal mine waste storage site could be put to “higher or better” use than its previous life as farmland.
Those words are enshrined in the 1977 Surface Mining Control and Reclamation Act (SMRCA), the federal law that requires mine sites to be returned to an approximation of their natural contours and to uses at least as beneficial as their previous incarnation.
“I thought, wouldn’t it be cool if we could put baseball fields on top of this mound of waste, from the highway you’d see them up in the air, people would be enjoying it, wouldn’t that be great?” said Johnson.
But far from becoming sports fields, the waste dump has become the grounds for a legal demand, filed last month, that seeks a federal takeover of mining oversight in Illinois.
If granted, the decision could put a major chill on Illinois’s resurgent coal mining industry and spark the re-examination of numerous mining and waste permits previously issued by the Illinois Department of Natural Resources (IDNR).
Even as coal-fired power plants have closed in droves nationwide, Illinois’ coal output has increased to fuel remaining coal plants in the U.S. and abroad, as coal is shipped down the Mississippi River for export overseas. While national environmental advocacy related to coal focuses on Appalachia or the West, Illinois advocates say their state is often overlooked.
Clinton County residents’ request to the federal government may be a longshot, but attorneys say it showcases just how deeply state laws and agencies have thus far failed citizens.
Johnson actually met with a developer about the mine waste site, but then found out that it was contaminating the area’s drinking water and the owner, ExxonMobil Coal USA, was in negotiations with state officials over the issue. He also learned that the toxic slurry below the grass was so mushy that building baseball fields or anything atop it was highly unlikely.
“They actually buried a bulldozer,” which sunk into the soft ground, he said. “Instead of pulling it out they just let it sink in and covered it. No one would be playing baseball on that thing any time soon. It shows how naïve I was at the time.”
SMCRA sets federal standards for coal mine waste storage and remediation. Like the Clean Water Act and Clean Air Act, it allows states to implement their own programs carrying out the federal law, and allows them to pass laws that are as strict or stricter than the federal standards.
In 2008, the group Citizens Opposing Pollution (COP) sued ExxonMobil and Illinois state agencies charging they failed to uphold the law regarding mine waste storage. However, in 2012 the Illinois Supreme Court essentially ruled that citizens cannot sue regarding mining activity carried out with a valid legal permit from the state.
If the federal government revoked Illinois’ authority to oversee its own mining program, however, citizens would be able to sue in federal court.
A troubled history
Starting in 1977, a subsidiary of ExxonMobil Coal USA operated an underground mine near the towns of Albers and Germantown east of St. Louis. A sprawling surface impoundment covering about 400 acres was used to store waste from coal mining and coal processing along with other toxic waste – batteries, solvents and petroleum products. The stuff was dumped in two raised basins, about 60 feet high, with walls constructed of waste rock that itself creates acid runoff, an attorney for citizens says.
The mine, known as Monterey No. 2, supplied coal to an Indiana power plant before closing in 1996.
In 1999 the Illinois Environmental Protection Agency (IEPA) filed violation notices against the company charging that waste had contaminated groundwater in the shallow Pearl Sand aquifer, which supplied drinking water for about 5,000 nearby residents through their own wells.
The citizens’ lawsuit charges that ExxonMobil was aware of contamination of the aquifer as early as 1979, and that after the mine closed, ExxonMobil failed to do groundwater testing required by the IEPA and also hid from the state agency results of water contamination found in its own monitoring wells.
In 2002 ExxonMobil agreed to pay $1 million of the $2.8 million total cost to connect residents to an alternate municipal water supply, and the company promised to make other upgrades to the waste facility.
Because of ExxonMobil’s promises, the IEPA and the Illinois Attorney General entered a covenant with the company agreeing not to sue it over past violations.
ExxonMobil installed a two-foot cap on top of the waste impoundment, though there is still no liner below the waste. The citizens’ lawsuit charges the cap is inadequate and illegal. Penni Livingston, the attorney representing residents, said that federal law requires the cap to be at least four feet thick on such an impoundment. She said it also appears the cap is not as impermeable as law requires, allowing in precipitation that could cause leachate as it runs through the waste and into the ground.
“This is liquid waste, this is quicksand, how are you going to cover quicksand?” asked Livingston. “It’s ridiculous.”
The lawsuit also posits that the entire impoundment violates federal regulations against permanent storage of liquid mine waste, as opposed to temporary storage while mining is ongoing.
As Johnson learned more about the mine waste, he met the local township road commissioner, Don Langenhorst, who was also upset about the situation. Johnson assisted Langenhorst in filing an administrative appeal of the IDNR permit which governed the waste dump. The state ruled against the appeal. Langenhorst also filed two petitions with the federal Office of Surface Mining challenging the IDNR permit. The federal office ruled in the state agency’s favor.
“It’s just big money against some local road administrator,” said Langenhorst. “I figured that would happen. You can’t get your hopes up too high with something that’s been going on so long.”
Now, more than a decade later, monitoring wells show that the aquifer is still contaminated, according to legal filings. And ExxonMobil is still paying to pump almost half a million gallons of water a day out of the aquifer to curb contamination, according to legal filings, discharging that water in a nearby river. (ExxonMobil spokesman Todd Spitler provided a statement but declined to answer specific questions for this story).
Langenhorst is frustrated that while pollution of the aquifer continues, he and his neighbors now have to pay for water instead of drawing it from their own wells.
“Now we have a water bill every month – we lost that good water,” said Langenhorst, who still draws well water from the aquifer for his cattle.
After Langenhorst and other citizens connected with Livingston, they filed the 2008 lawsuit in state court charging that the waste dump violates Illinois mining law. The IEPA and IDNR were named as defendants. But since the parties agreed an active IDNR permit wasn’t still governing the operation, they dropped that agency from the complaint.
In April 2009 a circuit court dismissed the suit, ruling that citizens cannot sue regarding an expired IDNR permit.
An appellate court reversed that decision in 2010, finding that the lawsuit could proceed since it alleged ongoing violations of the law. ExxonMobil appealed to the Illinois Supreme Court, which made its ruling interpreting the state law in a manner favorable to the company and the state agencies.
An IEPA spokesperson declined to comment for this story and referred questions to the IDNR, which did not respond to a request for comment.
Livingston thinks the Illinois Supreme Court’s interpretation of Illinois law actually violates federal law.
“The court said, ‘Hey if you have a permit you get to do whatever you want even if your permit is illegal,’” she said. “They said, ‘You should have challenged the permit 20 years ago, even if you didn’t live here then and it’s polluting the water right now.’”
Natalie Laczek, another attorney representing the plaintiffs, said, “It’s unfortunate this lawsuit even has to happen. We’re just trying to make sure [state regulators] are doing their job. If they can,t do it, they need to get out and let the federal government take over.”
Taking it to the feds
Clinton County residents were seemingly left with no legal recourse. Meanwhile the groundwater is still contaminated and undrinkable, ExxonMobil continues pumping water out of the aquifer, and the waste site sits unusable for anything other than “pastureland,” the use described in the company’s permit.
“I just wish it was over with and was fixed,” said Langenhorst. “Every day you drive past it, you think about it, you see all these water wells running trying to collect the pollutants. These wells are running 24 hours seven days a week. It’s just, what a waste. It’s a natural resource and we just are letting it all go. They just never finished what they started.”
Livingston said the government should force ExxonMobil to move the waste to a sealed cell in a hazardous waste facility, and complete reclamation of the site. She said the request to the federal government seemed the only way to make that happen, and to make sure federal law is followed in other mining situations across Illinois.
In March 2014, COP sent a letter to Department of the Interior Secretary Sally Jewell asking her to revoke Illinois’ mining program, on the grounds that the Illinois Supreme Court decision left citizens without a way to demand enforcement of federal law. In May the federal government informed COP that its “heavy workload” had so far prevented review of the request, so COP filed the writ of mandamus, a type of lawsuit, on October 10.
In a prepared statement, ExxonMobil attorney Spitler called the filing “just another attempt to undo what several courts and agencies have already ruled cannot be undone.”
“The [Supreme Court] ruling means that, in Illinois, as in other states, when a reclamation permit is challenged and found to be valid, and after opportunities to appeal have been exhausted, permittees can rely on the final permit,” he continued. “Reclamation efforts performed with oversight from appropriate agencies cannot be challenged repeatedly through litigation. We believe the court made the right decision, and businesses can have faith in the permitting process. Monterey Coal Company takes its environmental responsibility seriously.”
Citizens in other coal-producing states including West Virginia and Kentucky have also asked the federal government to take from the states the authority to regulate mining. Illinois’ request is unique given the context of the state Supreme Court decision.
While this legal battle is over the waste of a defunct mine, it could affect the future of a reinvigorated mining industry in southern Illinois. Production in the Illinois coal basin has actually increased from 31 million tons in 2009 to 47 million tons in 2012, with much of the coal exported. There are currently about 50 coal mines operating in Illinois.
If the federal government did take control of mining regulation in Illinois, it would grant permits for mines and enforce compliance. Since the federal government has itself not been known for proactive oversight of mine safety and other aspects of mining that it governs directly, Livingston said federal oversight would not necessarily mean vigilant regulation of Illinois mines. But, it would give citizens the crucial ability to sue in federal court over alleged violations, she said, and a way to make sure the law is enforced.
Johnson said that would satisfy him.
“Some people think I’m some kind of environmental activist, that I’m against coal,” said Johnson. “I don’t care if they mine coal or not. But I know rules and regulations, and if they are going to mine coal they have to follow the rules.”
(Editor’s note: This story was updated Nov. 11 to include comments from Natalie Laczek)