recent legal challenges to chia’s in...

Recent Legal Challenges to

CHIAs in Illinois

Nick San Diego

Staff Attorney

Illinois Department of Natural Resources

[email protected]

217-558-1224

Disclaimer: The views and opinions expressed in the following PowerPoint slides are

those of the individual presenter and do not represent the policies and legal position

of the Illinois Department of Natural Resources.

mailto:[email protected]

Illinois Program

• Obtained primacy June 1, 1982.

• Each mining unit can have multiple permit numbers.

• Permit numbers are appended for each renewal or

revision.

• 139 permits cover 78 mining units currently in operation

or reclamation status.

– Less than 30 mining units are in active coal production.

Illinois Coal • Underlying 65% of the State of

Illinois’ 37,000 sq. miles of land

area

• Part of the Illinois Coal Basin

• Pennsylvania bedrock 200-900

ft. below ground

• Seam thicknesses of 4-8 ft.

• Most coal production from the

#5 seam (Springfield) and #6

seam (Herrin)

What we’ll cover…

• Legal Challenges to Illinois Program CHIAs

• Changes to Limit Future Challenges

• Preliminary Comments on the 2015 Stream Protection

Rule

Legal Challenges to Illinois CHIAs

• Since 2010, 13 of 16 permit appeals involved at least one

allegation of improper findings related to hydrologic

balance protection.

• Few have continued to hearing.

• The Permit 385 appeal challenged baseline hydrologic

information.

Legal Challenges to Illinois CHIAs

• North Canton Mine, Permit 385

– Issued 7-29-08.

– Appealed by 12 petitioners.

– Hearing held 5-23-12 to 8-30-12 (11 days).

• Baseline hydrologic information

– Lacked potentiometric surface data.

– Failed to identify intermittent streams.

North Canton Mine – Permit No. 385

From http://www.savecantonlake.com/wp-content/uploads/2011/11/North-Canton-Mine-Proximity-to-Canton-Lake-and-Copperas-Creek.jpg

Permit 385 Watershed Map

Permit 385 Operations Map

Baseline Hydrologic Information

Issue: Whether the applicant provided sufficient

baseline hydrologic information.


Section 1780.21(b)(1)(B)

b) The application shall contain the following baseline

hydrologic information. …

(1)(B) Ground water quantity descriptions shall include,

at a minimum, rates of discharge or usage and

elevation of the potentiometric surface in the coal

to be mined, in each water-bearing stratum above

the coal to be mined, and in each water-bearing

stratum which may be potentially impacted below

the coal to be mined.

Potentiometric Surface Information

Section 1780.21(b)(1)(B)


Sub-Issue: Whether the waters in ravines 3 or 6

are intermittent streams.

1979 Preamble

44 Fed. Reg. 14901, 14932

Intermittent, perennial, ephemeral streams. (emphasis added)

2. (a) A one-square mile watershed concept was adopted for intermittent

stream, because at least two states (Alabama, Illinois) have found it easy to

administer and apply.

(c) The determination of whether a stream bed lies below the local water

table for “some part of the year” must be made by a qualified expert where

it is not clear whether the stream receives groundwater discharges. The

determination is, for example, applicable where the stream flows for several

days or longer after all snow is gone or after the last rain. OSM did not

specify a “one day” flow for this criterion. Instead, the regulatory

authority is given latitude to make a reasonable judgment about

whether stream discharge is a result of the stream bed being

below the local water table.


62 Ill. Adm. Code 1701.Appendix A Definitions

"Intermittent stream" means:

A stream or reach of a stream that drains a watershed of

at least one square mile; or

A stream or reach of a stream that is below the local

water table for at least some part of the year, and obtains

its flow from both surface runoff and ground water

discharge.


An “intermittent stream” is…

a stream or reach of a stream…

that is below the local water table…

for at least some part of the year, and…

obtains its flow from both surface runoff and

ground water discharge.

Permit 385 Ravine 6

From http://w3.salemstate.edu/~lhanson/gls100/gls100_hydro.htm

From https://en.wikipedia.org/wiki/Water_table

A stream or reach of a stream…

that is below the local water table…

for at least some part of the year, and…

obtains its flow from both surface runoff

and ground water discharge.

Outcome of Appeal

• On 2-23-12, Permit 385 was affirmed in part/denied in part.

– Findings upheld on all challenges except for

characterization of the stream in Ravine 6 (“Stream 6”).

– Finding of Stream 6 as ephemeral was overturned.

– Stream 6 was found to be intermittent due to

groundwater contribution “at least some part of the

year” from “local” perched water tables.

Outcome of Appeal

• On 7-29-13, Renewal 1 to Permit 385 issued.

– Stream 6 watershed was cut out.

• On 1-16-15, parties agreed to a consent order to vacate the

permit.

General Observations re:

Permit Challenges

• Level of petitioner sophistication has

increased.

– Motions to dismiss

– Expert opinions/reports

• Scope of issues at hearing seem more

focused.

Changes to Limit Future Challenges

• CHIA development

• Cumulative Impact Area (CIA) determinations

• CHIAs for significant permit revisions

More Comprehensive CHIAs • Through 2008, most CHIAs were

8-10 pages.

• OSM annual evaluation (EY ‘08)

focused on CHIAs.

– PHCs are limited by lack of

comprehensive background data.

– Therefore, assessments are limited

in evaluating effects on a cumulative

basis.

– Recommended a more quantitative

approach to delineating CIAs.

– Recommended more in-depth

PHCs.

More Comprehensive CHIAs • IL requiring more information

from applicants.

– Geologic cross-sections

– Groundwater data 10-43 months of

sampling

– Improved quality and accuracy of

information

• CHIAs are now 30-40 pages long.

– CIA determination more quantitative

– More upstream and downstream

monitoring baseline data

– Post-baseline compliance monitoring

in streams (surface mining)

– Specific material damage criteria

More Comprehensive CHIAs • CHIAs include maps depicting:

– Historical mining

– Surface water CIA or assessment

area

– Groundwater CIA or assessment area

– Surface water sampling sites

– EPA monitoring points

– Groundwater monitoring well

locations

– Hydrologic Unit Codes (HUC)

CHIA Formatting • Revised format and content:

– Map labeling

– Term usage

– Regulatory definitions

– Regulatory citations

– Discussion of historical mining

– Assessment area distinction

– OSM guidance on CIAs

Deer Run Mine – Permit Nos. 399, 424

Deer Run Mine – RDA 1

CIA Mapping

62 Ill. Adm. Code 1701.Appendix A Definitions

"Cumulative impact area" means the area, including the permit

area, within which impacts resulting from the proposed

operation may interact with the impacts of all anticipated

mining on surface and groundwater systems.

Anticipated mining shall include, at a minimum, the entire

projected lives through bond release of:

• the proposed operation;

• all existing operations;

• any operation for which a permit application has been

submitted to the Department.

CHIAs for Significant Revisions

Preliminary Comments on the

2015 Stream Protection Rule

80 Fed. Reg. 44436

• Section 701.5 (Definitions), p. 44467

– “adjacent area”

– “cumulative impact area”

– “groundwater”

– “hydrologic balance”

– “intermittent stream”

– “material damage to the hydrologic balance outside the permit area”



• Section 773.5 (Permit Requirements), p. 44478

– Would need to coordinate with USACE on stream determination.

• Section 774.15 (Permit Renewals), p. 44480

– Would require permit renewal applications to provide an analysis of

monitoring data (surface H20, ground H20 , stream biology)

• Section 780.19 (Baseline Information)

– (b)(2) would require assessment of seasonal characteristics of any

underground mine pool in the proposed/adjacent areas unless

demonstrated that it is not hydrologically connected, p. 44496

– (c)(5) would require use of on-site self-recording devices to provide

precipitation amount records, p. 44498



• Section 780.19 (Baseline Information), p. 44499

– (e)(2) would require use of state or tribal CWA agency-approved multi-

metric bioassessment protocol.

• Section 780.20 (PHC Determination), p. 44500

– (a)(4) would require a finding on whether the proposed operation would

either intercept or create aquifers in surface mine spoil or underground

mine voids.

• Section 780.21 (CHIA)

– (b) would require development of permit-specific, numerical material

damage criteria, p. 44501

– (c)(2) would require CHIA re-evaluation during the permit renewal

process or every 5 years, whichever is more frequent, p. 44503



• Section 780.23 (Monitoring Plans)

– (a)(3) would require the regulatory authority to reconsider the adequacy

of the ground H20 monitoring plan at two points in the permitting

process:

• 1st – after technical review of the application

• 2nd – after preparation of the CHIA, p. 44505

– (b)(3) would require the regulatory authority to reconsider the adequacy

of the surface H20 monitoring plan at two points in the permitting

process:

• 1st – after technical review of the application

• 2nd – after preparation of the CHIA, p. 44506



• Section 780.23 (Monitoring Plans), p. 44507

– (c)(3) would require the regulatory authority to reconsider the adequacy

of the biological condition monitoring plan after completing preparation

of the CHIA.

– (d)(1) allows for modification of the ground H20 and surface H20

monitoring plans and modification or waiver of the biological condition

monitoring plan if proposed permit area is for eligible remining only.

– (d)(2) allows for waiver of the biological condition monitoring plan under

3 conditions or limit the monitoring requirements to only the stream that

will receive the point-source discharge if the other 2 conditions are met.

recent legal challenges to chia’s in...

Documents