Happy Holidays: Environmental Groups Take on IDNR

December 16, 2012

IDNR: “arbitrary and capricious decision” to approve Starved Rock mining permit - in other words, they’re being sued

It’s been exactly a year since I first got wind of the plan to site an open pit frac sand mine just outside the eastern entrance of Starved Rock State Park in LaSalle County. I went back to look at the website entry I posted for December 18, 2011 and, at that time, the LaSalle County Board of Zoning Appeals had just met and unanimously approved the special use permit to allow Mississippi Sand LLC establish its operation on 350 acres of farmland on the south side of the Illinois River.

In the twelve months since that initial decision, the mine has come closer and closer to being a reality. The full county board voted to approve the action of the zoning board, and Mississippi Sand began the process of submitting permits to the Illinois Department of Natural Resources (IDNR) Office of Mines and Minerals (OMM) and the Illinois Environmental Protection Agency (IEPA).

Meanwhile, local and state activists began making their voices heard. Groups like the Illinois Chapter of the Sierra Club, Openlands and Prairie Rivers Network led the charge, but other groups and individuals have worked tirelessly to get the word out to the general public that the very character of this beloved state park could possibly be changed forever–and for the worse. I have interviewed countless people on my program–those representing environmental groups, and residents who stand to be directly affected by this affront to the beauty of the area.

Three weeks ago, to the dismay of those involved in the battle, IDNR OMM approved Phase I of the Starved Rock mine. But the latest chapter in this struggle between industry and the environment was written this week when the Sierra Club , Prairie Rivers Network, and Openlands filed a complaint in Circuit Court in Springfield, Illinois demanding judicial review of that sand mining permit.

It reads in part:

Defendant Mississippi Sand, LLC…failed to comply with SMLCRA [Illinois Surface Mined Land Conservation and Reclamation Act] by submitting a Conservation and Reclamation Plan…a Reclamation Map and Affected Area Map with its application for a surface mining permit, which inaccurately and inadequately describe its proposed silica mining project adjacent to the eastern entrance of Starved Rock State Park…in LaSalle County. Defendants Michael Woods, Michael Falter. OMM (collectively the “OMM Defendants”) and IDNR violated SMLCRA in that they approved the flawed Reclamation Plan. Reclamation Map, and Affected Area Map, and, as evidenced by their written findings, failed to consider adequately all of the thirteen factors relating to the short and long-term impacts of the proposed mine as required by SMLCRA…As a result, OMM Defendants and IDNR made an arbitrary and capricious decision to approve the Mississippi Sand surface mining permit. [Empasis mine.]

The “thirteen factors” cited above include the short and long term impact of the proposed mining on vegetation, wildlife, fish, land use, land values, local tax base, the economy of the region and the State, employment opportunities, air pollution, water pollution, soil contamination, noise pollution, and drainage, as required by the Surface Mined Land Conservation and Reclamation Act and its regulations.

The petition continues:

The actions and inactions of Agency Defendants will allow the degradation and destruction of private and public interests. The mine and its operations will injure the enjoyment and health of park users specifically and persons generally, as well as the healthfulness of properties near the proposed mine. Neighbors to Starved Rock, visitors to Starved Rock and wildlife will experience intermittent bursts of loud noise from explosive blasting at the mine site. Noise and air pollution will harm and directly disturb neighboring businesses including a nearby apiary. Aesthetic and health impacts on the park will likely reduce the number of visitors to the park and thereby harm businesses that rely on park visitors for revenue. Nearby properties may flood. Visitors to Starved Rock and neighbors may suffer from, and will fear harm from, carcinogenic respirable silica dust and other airborne pollutants from the proposed mine. Defendant Mississippi Sand will partially destroy and wholly alter the flow characteristics of Horseshoe Creek, which flows into Starved Rock. All of these impacts, and the community perception of such impacts, may reduce the value of nearby private property. Finally, Defendant Mississippi Sand may be unable to reclaim the mined land as its Reclamation Plan and Reclamation Map indicates and the law requires.

In one of the more interesting aspects of this action, the environmental parties bringing suit contend that the Office of Mines and Minerals violated the Illinois Surface Mined Land Conservation and Reclamation Act (SMLCRA) by “Failing to Consider Adequately its Statutorily-Required Factors.” However, they then turn around and declare that “SMLCRA Violates the Due Process Guarantee in the Illinois and United States Constitutions as it was Applied by the Agency Defendants in This Case.”

SMLCRA is unconstitutional to the extent that it is held to provide that no notice or predecisional hearing is required for the members and supporters of Plaintiffs whose protected property interests are placed at risk by the issuance of this permit.

A. Due Process requires that IDNR hold a hearing on a non-coal surface mining permit application at the request of persons whose property interests will be jeopardized by the permitted activity.
B. Due Process requires IDNR to consider comments on a non-coal surface mining permit submitted by persons whose property interests will be jeopardized by the permitted activity.
C. Therefore, if SMLCRA is held to allow IDNR to issue permits for activities that endanger protected property interests while denying those whose interests are at stake any opportunity to be heard at a meaningful time, in a meaningful manner, SMLCRA violates the Due Process Clauses of the United States and Illinois Constitutions.

Finally, the plaintiffs charge that IDNR Defendants’ Violated the Illinois Natural Areas Preservation Act by Failing to Fulfill Consultation Requirements.In the end, the suit seeks to void the permit; “providing such further and additional relief as this Court deems just and proper.”

Today, I’m pleased to have Cindy Skrukrud, Clean Water Advocate for the Illinois Chapter of the Sierra Club, return to the show to talk about the law suit and where we go from here. From an article in the NewsTribune out of LaSalle, Illinois:

Tony Giordano, president of Mississippi Sand, LLC, said the sand mine project was ready to begin next spring but now that a lawsuit has been filed it could delay the project for as long as a year.

“This has been the most scrutinized sand mine in the state of Illinois,” Giordano said. “It’s frustrating. This lawsuit has little merit. There are multiple state agencies that have examined mines and given us permits. In the end, we’ll get our permits and have to look at that time what the market will bare [sic].”

Or maybe the project will be scuttled entirely. ‘Tis a consumation devoutly to be wished.

If you want your voice to be heard, there’s still time. Here’s how you can contact Governor Pat Quinn. He’s been awfully silent on this issue. Makes me nervous.

Lisa, Sarah and Mike offer great books for holiday gifts… Part Deux

Last week we interviewed a few authors of books that we thought would make good holiday gifts. However, as you know, my show is only two hours long, which means that a number of good books didn’t get discussed.

So welcome to the second part of our discussion. Let’s start with some books recommended by Lisa Albrecht, who really got short shrift last week. My apologies, Lisa. Take it away:

Rooftop Revolution: How Solar Power Can Save Our Economy — and Our Planet — from Dirty Energy by Danny Kennedy
Obviously I am biased but this is my favorite. Danny Kennedy likens the move toward solar to the Industrial Revolution, hence the name. He predicts a “Solar Assent” as we move from dirty energy to clean sources that each of us can own individually. My favorite part – each chapter has a section called “What You Can Do as a Rooftop Revolutionary”. I like action and often I am inspired by a book or message but lack a “next step”. Danny not only offers them but his website includes the links and back ground that you need to join the revolution.

Power Trip, The Story of America’s Love Affair With Energy by Amanda Little
I recently met Amanda Little, who shared her exploration of the energy industry first hand, including a journey to the top of an oil rig and the catacombs of NY tunnels. Although I am not finished, the book reads like a Lonely Planet of the energy industry and is engaging adventure, painting pictures of technology few get to see firsthand. Sectioned into two parts, the first reveals the evolution of oil/energy over the last century. The second discusses new possibilities, offering hope and vision.

Clean Break: The Story of Germany’s Energy Transformation and What Americans Can Learn from It by Osha Gray Davidson
As a solar professional, Germany is revered as the Meca of Clean Energy, both a source of shame and inspiration as an entire country with the sunshine of Alaska successfully shifts to renewable energy. Osha Gray Davidson visited Germany this summer to witness the success and tell the story of Germany’s desire to break up with dirty energy after Chernobyl in 1986 and the movement that is known as Energiewend or “energy change”. He explores the social climate that has driven their success and a nationwide commitment toward a cleaner, self-reliant future and how we might be able to do the same in the US.

Meanwhile, a couple of other selections popped up on my radar screen, thanks to the good folks at The Mountaineers Books.

On Arctic Ground: Tracking Time Through Alaska’s National Petroleum Reserve by Debbie S. Miller
What if I told you that there is a tract of U.S. land that is larger than the state of Maine and that is largely untouched by our all-too-greasy-hands? Well, it does exist in Alaska (where else?) and it has the unfortunate name of the National Petroleum Reserve – Alaska. Yup, what might be the most pristine place left on the planet (with the possible exception of Antarctica (and who wants to go there besides me?) is ready to be exploited by the people who have turned exploitation into a science (yes, I’m talking about us…as in U.S.!) Debbie Miller has explored just a fraction of this territory and in this very cool and important book–made even cooler by the fabulous photographs– explains why we might want to preserve this area instead of milking it dry for its oil and gas.

Cairns: Messengers in Stone by David B. Williams
What do I know about cairns? Pretty much nothing. And what do YOU know about them? I’m guessing the same. Which is why we need David Williams to tell us about what are essentially piles of rocks that have meaning. For thousands of years cairns have been used by people to connect to the landscape and communicate with others, and are often an essential guide to travelers. Cairns, among other things, can indicate a trail, mark a grave, serve as an altar or shrine, reveal property boundaries or sacred hunting grounds, and even predict astronomical activity. Who knew? (Apparently, David did.)

Books recommended by Ron Wolford at Illinois Extension

Wyman’s Gardening Encyclopedia

Dirr’s Encyclopedia of Trees and Shrubs

Rodale’s Ultimate Encyclopedia of Organic Gardening

Vegetable Gardening in the Midwest – University of Illinois

Encyclopedia of Plants and Flowers – The American Horticulture Society

Crockett’s Victory Garden

Step-by-Step Gardening Techniques Illustrated

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