Public News Service: ELPC’s Learner Discusses Peabody’s Responsibility to Fund Mine Reclamation

By Brandon Campbell, Public News Service

Peabody Energy, the largest coal producer in the U.S., reached a deal this week with several states on plans to cover the costs of mine cleanups. Illinois is not among them and environmentalists said that could be a good sign.

The company is filing for bankruptcy and has been allowed to self-bond – essentially a promise to pay for coal site cleanup without actually setting aside the cash. Peabody operates several coal mines in Illinois and according to the state’s attorney general, the energy company could be on the hook for $92 million to reclaim the sites if they’re shut down.

That money should not have to come from Illinois taxpayers, said Howard Learner with the Environmental Law and Policy Center.

“The state of Illinois has not filed a stipulation with Peabody,” Lerner said. “And we’re pleased that Governor Rauner and the Illinois Attorney General are looking harder at this one, and reassessing what’s the fair balance here in light of Peabody’s legal responsibilities.”

Learner said that the deal Peabody reached with Indiana could force the state’s taxpayers to foot about 80 percent of the bill to clean up the company’s coal sites. So far, Illinois has not made a deal with Peabody.

In July, a federal bankruptcy judge allowed groups, including the Environmental Law and Policy Center, to weigh in on the court proceedings. Learner called it a breakthrough decision that could help keep Peabody accountable.

“What that really means,” Learner said, “is the court’s attention is now focused on Peabody living up to its legal responsibility to fully fund the mine reclamation and hear the arguments about why those costs should not be shifted onto the public.”

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Ecosystem Marketplace: ELPC’s Brad Klein Weighs in on Water Quality Trading Programs

Water Quality Trading: What Works? What Doesn’t? And Why Don’t We Know This Already?

By Kelli Barrett

July 22, 2016

Water utilities and NGOs around the world are using market-based mechanisms to clean regional water bodies and restore surrounding watersheds, but critics say the programs are unproven. Proponents counter: yes, they are, and the data exists to prove it!

For years now, North American cities like Denver and New York have been diverting water fees into forest conservation, while Kenyan flower-growers have been voluntarily paying upland farmers to develop terraces that slow runoff. Just this week, legislators in the Peruvian Capital of Lima authorized a program that will divert some of the city’s water fees into the restoration of ancient, pre-Incan canals high in the Andes to capture floodwater for the dry season. In addition to these “investments in watershed services” (IWS) programs, water authorities in the United States, New Zeeland, and Australia are experimenting with something called “water quality trading” (WQT), which aims to keep levels of fertilizer at scientifically acceptable levels by helping farmers implement conservation practices that reduce their agricultural runoff.

Each program is uniquely its own, but they all hinge on the premise that market-based mechanisms deliver better results and more flexibility by focusing on quantifiable, verifiable outcomes – either in terms of water quality or regularity of supply – rather than the rigid edicts of “command-and-control” regulation.

Last autumn, an organization called Food and Water Watch (FWW) challenged that assumption, at least as far as WQT is concerned, in a paper that re-labeled WQT as “pollution trading” and charged that it undermines the Clean Water Act (CWA) and puts US waterways at great risk – a contention that was promptly dismissed by WQT proponents like Brent Fewell and Bobby Cochran.

Fewell, a one-time senior official at the US Environmental Protection Agency (EPA) and founder of the law firm Earth and Water Group, penned a piece entitled “Food & Water Lies – FWW Stands in the Way of Environmental Protection” which derided the organization as being ideologically anti-market and anti-public private partnership, while Cochran, the Executive Director of the Oregon-based nonprofit Willamette Partnership, was a bit more forgiving.

“FWW did not do an independent assessment on water quality trading,” said Cochran, whose organization is active in the WQT space and often acts as an advocate for trading.

However, Cochran adds that proponents of trading aren’t producing objective content either.

And while the pro and con camps continue to argue, reams of hard data from dozens of pilot projects are sitting around just begging for a disinterested, scientific evaluation. Cochran, among other practitioners, suggest a third-party, independent review of this data to settle the debate over whether WQT is effective.


Judge rules that ELPC is in position to assert that Peabody put up necessary funds for mine reclamation and cleanup

From Midwest Energy News:

Environmental groups won a partial victory last week in their campaign to make sure Peabody Energy cleans up its coal mines, a growing concern as the company is going through Chapter 11 bankruptcy proceedings.

A federal bankruptcy judge found that the Environmental Law & Policy Center and the Western Office of Resource Councils can proceed in petitioning the federal Office of Surface Mining Reclamation and Enforcement (OSMRE) regarding Peabody’s use of “self-bonding” for eventual clean-up of its coal mines.

When a company is in bankruptcy, there is an “automatic stay” imposed on citizens pushing for enforcement of environmental laws, including the federal law governing coal mine reclamation. The groups had asked the bankruptcy court to be exempted from that stay on the self-bonding issue.

Peabody had strongly objected, but the judge ruled in the groups’ favor, deciding they can continue sending information to the federal enforcement office and demanding  regulators take action to limit Peabody’s self-bonding.

The groups have been arguing that Peabody should have to put up real capital ahead of time or invest in an insurance policy or surety bonds to clean up mines, rather than be allowed to “self-bond,” or essentially promise that it will have enough money when the time comes.

As ELPC executive director Howard Learner sees it, bankruptcy judge Barry Schermer’s July 20 decision signals that the feds can enforce reclamation requirements on Peabody even as the company reorganizes in bankruptcy proceedings. And if federal regulators do not take action the environmental groups find sufficient, the ruling protects their right to sue the agency, Learner said.

“The question will be, where do Peabody’s mine reclamation and environmental cleanup responsibilities fall within the competing demands of creditors and vendors and Peabody’s plans for future,” as hashed out in bankruptcy proceedings, Learner said.

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Greenwire: Federal Judge Allows ELPC to Challenge Peabody Cleanup Bonds

By Dylan Brown, E&E Reporter

A federal judge yesterday cleared the way for environmentalists to challenge a bankrupt coal company’s promises to clean up its mines — objections industry advocates condemn as counterproductive meddling.

Judge Barry Schermer of the U.S. Bankruptcy Court for the Eastern District of Missouri decided yesterday to lift a hold on two conservation groups’ challenges to Peabody Energy Corp.’s self-bonding.

The Surface Mining Control and Reclamation Act gives states, as the law’s primary regulators, the option to accept corporate pledges instead of third-party bonds or sureties to cover mine cleanup costs should the company go under.

But coal’s downturn and mining company bankruptcies have sparked fierce criticism from environmentalists and Democrats pushing to ban self-bonding over concerns that taxpayers will ultimately pay for reclamation (Greenwire, June 16).

The Environmental Law & Policy Center and the Western Organization of Resource Councils planned to formally challenge Peabody’s self-bonding obligations in Illinois, Indiana and Wyoming until the world’s largest public-sector coal company filed for bankruptcy in April (Greenwire, March 8).

Bankruptcy automatically put a hold on any attempt to force Peabody to replace self-bonds. The company holds roughly a third of the nation’s $3.7 billion in total self-bonding — including $92 million in Illinois, $163 million in Indiana and nearly $800 million in Wyoming.

Schermer yesterday said citizens could file their grievances with the federal Office of Surface Mining Reclamation and Enforcement.

He wrote that critics “may advocate their position regarding the Debtor’s and its affiliates timely satisfying self-bonding requirements of jurisdictions in Illinois, Indiana, and Wyoming.”

Schermer, however, said groups could not sue or take any action to interfere with Peabody’s mine permits, renewals or modifications. The company is going through a court-supervised restructuring process.

“ELPC will continue to work with our partners to ensure that Peabody Energy’s and other coal mine companies’ bonding practices are in the public’s interest and that taxpayers are not saddled with the costs of mine reclamation and clean-up responsibilities,” Environmental Law & Policy Center Executive Director Howard Learner said in a statement.

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Breaking News: Bankruptcy Judge Rules Self-Bonding Challenge Can Move Forward

FOR IMMEDIATE RELEASE                                                     

July 20, 2016


David Jakubiak

Federal Bankruptcy Court Allows Environmental Groups to Move Forward On Peabody’s Self-Bonding of Coal Mine Reclamation


Executive Director, Environmental Law & Policy Center

St. Louis – Howard Learner, Executive Director of the Environmental Law & Policy Center, said in response to Federal Bankruptcy Judge Barry Schermer’s ruling today allowing efforts to move forward that could help prevent any effort to shift coal mine clean-up costs on to the public as part of any bankruptcy restructuring:

“The Federal Bankruptcy Court recognized that the Environmental Law & Policy Center and Western Organization of Resource Councils are ‘parties in interest’ and can proceed to comment on Peabody Energy’s obligation to fully perform mine reclamation and environmental cleanups at its coal mines in Illinois, Indiana, New Mexico and Wyoming.”

“ELPC will continue to work with our partners to ensure that Peabody Energy’s and other coal mine companies’ bonding practices are in the public’s interest and that taxpayers are not saddled with the costs of mine reclamation and clean-up responsibilities.”


Chicago Tribune: ELPC’s Learner Asserts Houbolt Road Bridge Project Affirms Need to Kill Proposed Illiana Tollway

Environmentalists see Houbolt Bridge as Alternative to Illiana Toll Road
By Susan DeMar Lafferty

News of the proposed new Houbolt Road Bridge from Interstate 80 into the CenterPoint Intermodal Center in Joliet and Elwood was viewed as a positive step toward improving safety and relieving the truck traffic that has clogged local roads. However, some feel it should also serve as a signal that the shelved Illiana toll road project is no longer needed.

Environmental groups said the bridge — expected to be open by 2019 — is a key piece in improving the local transportation system, and a cost-effective alternative to the 47-mile Illiana toll road, that was to connect Interstate 55 in Wilmington to Interstate 65 near Lowell, Ind.

The Environmental Law and Policy Center, Sierra Club and Openlands, who have fought against the Illiana toll road in state and federal courts, claim it is a “financial boondoggle,” that would have “disastrous impacts” on Midewin National Tallgrass Prairie, Abraham Lincoln National Cemetery — both located along Route 53 — and other natural open spaces in that area, such as the Des Plaines River Conservation Area.

In a July 11 press conference, Gov. Bruce Rauner said the CenterPoint Intermodal Center in Joliet and Elwood, would pay $170 million to construct the new bridge and the state would pay $21 million to widen Houbolt to four lanes and improve the interchange at I-80 and Houbolt — money that Rauner said is in the budget.

Officials hope it will offer relief to the heavy truck traffic that has choked Route 53, interfered with funeral processions at the national cemetery, caused traffic accidents and prompted the Village of Elwood to launch a web-based public safety campaign,

The bridge project makes it “all the more clear” that the Illiana should be brought to its “well-deserved end,” said Howard Learner, executive director of the Environmental Law and Policy Center. “I hope Rauner and IDOT (Illinois Department of Transportation) will bring it to an end once and for all.”


Howard Learner Talks To Chicago Reader in In-Depth Look At Illinois Coal

Illinois Coal’s Last Stand
Even as people bemoan its environmental and health effects, the prospect of its demise sparks fear and nostalgia.

By Kari Lydersen

…But Peabody’s financial fortunes have plummeted in recent months, and on April 13 the company announced its filing for Chapter 11 bankruptcy. Environmental groups are demanding that Peabody be forced to put money aside for future cleanup; otherwise the responsibility could fall on the cash-strapped state government.

“Peabody’s financial condition speaks for itself,” said Howard Learner, executive director of the Environmental Law and Policy Center. “Peabody’s management has not navigated the energy market, where low natural gas prices have outcompeted coal and energy efficiency is holding down electricity demand in the U.S. while China’s economy grows at a less robust rate than previous years. The risk is that Peabody’s responsibility to clean up from its mining operations will be washed away in a bankruptcy proceeding and Illinois taxpayers will be left holding the financial bag.”

Read the story at the Chicago Reader

Midwest Energy News: ELPC’s Dexter Warns IL Needs Tougher Rules for Toxic Coal Ash Ponds

Groups seek stronger safeguards in Illinois coal ash rules

By Kari Lydersen

The Vermilion Middle Fork is a swift-flowing river winding through lush forests, rolling prairie and craggy cliffs in central Illinois. Designated as one of the country’s “National Scenic Rivers,” it is subject to federal and state protections, popular with paddlers and home to wildlife including 24 endangered or threatened species.

But the river’s banks butt up against three massive pits filled with toxic coal ash produced over five decades by the Vermilion coal-fired power plant, which closed in 2011 and is still owned by the power company Dynegy. The pits hold more than 3.3 million cubic yards of coal ash, enough to fill an Olympic-sized swimming pool more than 1,000 times.
In some spots, dark orange run-off drips into the Vermilion, as documented by canoeing environmental watchdogs who note that such iron-rich runoff is common from coal ash impoundments. The river’s banks also show obvious signs of erosion, and as the soft earth recedes it brings the river closer to the vast reserves of coal ash.

Local residents and environmental advocates fear that the Vermilion could become the site of a disaster akin to those in Kingston, Tennessee or the Dan River in North Carolina, where coal impoundments failed and inundated nearby waterways and towns with toxic sludge.

Two sets of rules

In October, long-awaited federal rules governing the storage of coal ash took effect. But the rules do not apply to ash stored at power plants that were already closed, hence the impoundments next to the Vermilion River are not covered.

The state is in the process of drafting its own rules on coal ash storage.

The Illinois Environmental Protection Agency (IEPA) started this process several years ago, and after discussions between industry and environmental stakeholders, it came up with a draft that environmental advocates said was decent if not ideal.

But the agency halted that process to see how the federal rules played out. After those rules were finalized, the Illinois Pollution Control Board ordered the IEPA to submit its proposed rules.

This time, the state agency — under the new administration of Gov. Bruce Rauner — submitted proposed rules far less stringent and comprehensive than the previous draft. The proposed rules currently before the board cover six pages, while the earlier draft was around 50 pages.


Remembering ELPC Photographer James Linehan

JimI want to let ELPC’s “extended family” know the sad news that photographer James Linehan, who worked closely with ELPC, passed away on May 29th after a long illness.  Jim was 50 years old and lived in Chicago and in Wisconsin’s Northwoods.

Jim was a fine friend, great outdoorsman and wonderful photographer. Jim photographed a series of images of the Midwest’s special wild and natural places that ELPC succeeded in protecting and saving, and his photographs have been on display in ELPC’s office for many years. Some of these photos are included below.

Jim’s love of the outdoors was reflected in his photography. He was an accomplished ice climber, fly fisherman and paddler. Jim did much more than enjoy the outdoors; he lived and loved the outdoors.

ELPC, with curator David Travis, will be showing a special exhibit of Jim’s great Midwest landscape and wildlife photos. We have been working with Jim over the past few months to plan this retrospective photo show.

Jim was a great friend and colleague for ELPC. We will all greatly miss Jim and his work in many ways to preserve the Midwest’s natural environment.



Press Release: State Legislators, Community Leaders Share Grave Concerns About Toxic Coal Ash

Thursday, May 26, 2016

Contact: Judith Nemes, ELPC (312) 795-3706,

State Legislators, Community Leaders Share Grave Concerns About Toxic Coal Ash
Leaders Gather in Capitol to Warn of Dangers and Critique Inaction

SPRINGFIELD, IL — Today, legislators and community leaders gathered at the Illinois State Capitol calling for improvements to the proposed state rules concerning toxic coal ash ponds in communities across the state. State rules are pending before the Illinois Pollution Control Board (IPCB) and must be comprehensive to fill gaps in the federal rule. The group is asking Governor Rauner and Illinois EPA to support stronger rules for cleanup so coal ash won’t be left as a toxic legacy and a barrier to new economic development opportunities in Illinois communities.

“It’s critical that the State of Illinois craft stronger coal ash protections to make sure no company can simply cap their toxic waste and walk away without a full cleanup plan,” said Illinois Senator Melinda Bush. “We must make sure these sites have positive re-use opportunities so that they can be a future financial asset to local communities.”

Illinois State Representative Carol Ammons agrees. She said, “Illinois taxpayers should not bear the burden of mitigation costs nor the long-term liability for cleanup or site maintenance. This is the responsibility of the owners of the coal ash ponds.”

Coal ash, the waste left over from burning coal, contains arsenic, selenium, mercury and other pollutants — all harmful to people and wildlife. Wet ash is stored in the 90 impoundments called ponds at dozens of operating and closed power plant sites across the state. IEPA found contaminated groundwater at every site tested. Coal ash waste and contaminated groundwater pose grave challenges to communities seeking to re-use these properties, court new businesses, and maintain their critical tax-bases.

The federal coal ash rule, in effect as of October last year, provides minimal closure requirements and leaves it up to the companies to implement. Illinois was developing a comprehensive set of enforceable rules for the cleanup and closure of our state’s coal ash mess. Until recently, the state was making progress on state rules before the Illinois Pollution Control Board. Last month the Illinois EPA indicated to the board its intention to radically scale back the proposal, and allow coal companies to cap their coal ash waste and walk away. Such standards leave limited re-use options for these sites that could otherwise hold promising redevelopment opportunities.

“The Middle Fork of the Vermilion River, Illinois’ only designated National Scenic River, is a poster-child for why comprehensive state coal ash rules are desperately needed in Illinois. Three pits containing 3.3 million cubic yards of toxic coal ash lie within the floodplain of the Middle Fork posing a long-term threat to the river, to the people who depend on it and to the recreational and economic value that it provides to the region,” said Lan Richart, Co-Director of the Eco-Justice Collaborative in Champaign.

“I am alarmed that the federal coal ash rule does not address the risks of inactive sites. As it stands, companies are allowed to simply cap these ponds and walk away. We’re calling on lawmakers to stand with coal communities and taxpayers who can’t afford to be left on the hook for costly cleanups,” said Laura Asher, chair of the Piasa Palisades group of the Sierra Club in Alton.





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