The Battles Over the Ground
and Behind the Doors
Healing damaged farmland in Illinois
The complexities of government were seldom more vividly highlighted than in the ongoing fight to regulate the once-mighty coal industry in Illinois. This is Part 2 of two; Part 1 is here. The problems posed by the reclamation of mined land had changed since 1980, when I first examined them for the magazine; that piece is here.
Illinois Issues introduction: No dispute has put the contending claims of coal and agriculture, state and county, miner and farmer into sharper relief than the battle over implementing the 1977 federal Surface Mining Conservation and Reclamation Act (SMCRA). A major issue has been the federal deadline and the state compromise on exempting from the strictest reclamation standards those prime farmlands already being mined under permits issued before 1977. In this article, author James Krohe Jr. tells the story (at least as it has unfolded to date) of the SMCRA wars and makes some initial assessments of the state's program for protecting its farmland and restoring mined soils to full productivity.
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The promise made by Congress in the 1977 federal Surface Mining Conservation and Reclamation Act (SMCRA) was simplicity itself. Coal companies would not be allowed to take coal from the land, from either underground or surface mines, unless they could repair the damage the taking did to the land.
Not for the first time, Congress learned that promises are easier to make than to keep. Numerous lawsuits, intense lobbying by industry (especially in Washington) to dilute or delay key provisions of the act, political double-dealing, an ideological uprising in Washington which overthrew the regulatory policies of three administrations—all led to confusion that delayed implementation of the act by years. Sighed one of the embattled veterans of Illinois' own SMCRA wars recently, "No one dreamed it would take this long."
It is in the nature of government, of course, that simple ends require complex means. The procedure established to get the SMCRA off the books and onto the ground was similar to those used to implement other major federal environmental laws of the 1970s. Congress laid down broad standards in the act itself dealing with land reclamation, enforcement and so on—the "what" of the new national strip mine policy. A new agency in the Department of the Interior, the Office of Surface Mining or OSM, was organized and instructed to draft specific regulations —the "how"—for its use and as guides to individual states.
The states were given the option of drafting and administering their own mine reclamation programs based on the SMCRA. The act required that the provisions of these state programs be at least as stringent as those set by OSM. OSM in turn was given the power to review and approve state programs as a condition of the states being awarded primacy in the administration of the act within their borders.
Once a state program was approved, OSM reverted to the role of overseer, responsible for monitoring each state's faithfulness in applying the SMCRA-based regulations to coal operators under the state's jurisdiction. Should a state prove insufficiently diligent, OSM retains the power to withdraw its grant of regulatory authority to the state and enforce the SMCRA itself.
It may be taken as a measure of the complexity of this process that Illinois' own strip mine reclamation program was scheduled to go into effect in mid-1981. While substantially complete, that program was still being amended nearly three and a half years later.
Competing claims on land
Big corporations and small communities in Illinois both depend on the land for profits. These economic claims on the resource are not only competing, but frequently contradictory. Those contradictions have been made vividly clear to recent Illinois governors. The most recent of these, of course, is Gov. James R. Thompson. Agriculture remains Illinois' biggest single industry. Coal mining, however, has been a billion-dollar-a-year industry during the Thompson years and has provided thousands of industrial jobs in parts of the state which otherwise would have very few. Thus are the coal industry's economic interests and a governor's political interests melded.
"Despite the importance of agriculture, the coal industry dominates in the Thompson administration," complains Chuck Sheketoff of the Illinois South Project, the Herrin-based coal county activist group. Illinois South has often found Thompson too eager to set up a tent in Big Coal's camp. "The Illinois Coal Association represents some of the largest corporations in the world," Sheketoff points out, adding that coal's customers in the utility and manufacturing industries comprise another accretion of clout.
It may be more accurate to think of Big Jim as a pro-jobs governor than a pro-coal governor. That is not a distinction that will ease an uneasy farm community. Rich Clemmons is director of local government and legislative liaison for the Illinios Farm Bureau, the largest and most muscular of the state's farmer organizations. Clemmons agrees that when choices must be made between the coal diggers and the corn pickers, Thompson "leans a little bit on coal's side."
For example, during his first term Thompson had to name the agency that would implement the newly passed SMCRA in Illinois. Several agencies had plausible claims, including the Illinois Environmental Protection Agency (IEPA) and the Department of Conservation. Farm interests generally agreed that the power to oversee the reclamation of mined land (which in Illinois virtually always means mined farmland) ought to be vested in the state's Department of Agriculture.
Thompson opted for his Department of Mines and Minerals (DMM) instead. DMM's clientele historically has been the coal companies, whose enthusiasm for reclamation has always been conditional and grudging. Assigning DMM to oversee reclamation wasn't exactly like putting a fox in charge of the henhouse; it was more like assigning a fox to guard foxes. "Our members' policy still states a preference in favor of Ag as the implementing agency," explains Clemmons. (There was a precedent for the choice of DMM, by the way. Under pressure from the U.S. EPA in the late 1970s to develop a program to control soil erosion from farms, the Thompson administration installed that program in the friendly halls of his Department of Agriculture rather than the Illinois EPA.)
No dispute put the contending claims of coal and agriculture in Illinois into sharper relief than the five-year fight over the grandfathering of prime farmlands. The SMCRA made a bow to coal industry lobbying and exempted from the strict prime farmland reclamation standards those prime lands already being mined under permits issued prior to the enactment of the new law in August of 1977. OSM, then under President Carter's Secretary of Interior Cecil Andrus, set a deadline of August 1982 for the end to all such grandfathering, arguing that the industry would have had ample time by then to revise its reclamation procedures to cope with the tough new standards.
That simple requirement became the cause of seemingly endless quarrels between the state and federal strip mine agencies, between coal companies and DMM, between DMM and farmers and environmentalists. At issue were definitions of "existing mine" under the regulations, the demonstration of what the regulations call the "legal right to mine" as a condition of the exemption, and especially the Andrus cutoff date; these issues were subject to court tests, rule reversals and political deal-making in both Springfield and Washington.
For example, the Andrus deadline had been imposed only after a compromise had been drawn with the coal industry. OSM had ruled that companies would be allowed to grandfather land that was outside the original permitted area, so long as that land was to be mined in pursuit of a continuous coal seam. That decision expanded the potential acreage to be mined, and when the cutoff date was later struck down by a federal judge in Washington, D.C., prime lands seemed at renewed risk. Even OSM officials in the field agreed that the grandfather provision has become a loophole big enough to drive a coal shovel through.
While the courts cogitated and OSM rule-makers waffled, DMM had made clear its intentions to stand by the original August 1982 cutoff date. The industry lobbied the Thompson administration to abandon the date, arguing that should the national cutoff date be delayed or even dropped by OSM, Illinois coal companies would have to unfairly submit new, expensive reclamation plans for their no-longer-exempt prime acres.
Meanwhile, a coalition of Illinois farm and environmental groups including the Illinois Farmers Union, the League of Women Voters of Illinois, the Illinois South Project, the Illinois Wildlife Federation, and the anti-strip-ping Citizens for the Preservation of Knox County had sued Andrus' successor, Reagan appointee James Watt, in Washington to bar his proposed abandonment of a national grandfathering cutoff date. As Taylor Pensoneau of the Illinois Coal Association recalls it, the grandfathering issue "bordered on being explosive" in 1982. Such a public dispute involving such important constituencies poses delicate problems to an Illinois governor, especially in an election year. Thompson's staff undertook to fashion a compromise.
A staff memo reveals something of the administration's priority. The principal object, stated the memo, was to insure that no Illinois mines were closed as a result of what it called "regulatory tangles." To accomplish this, the so-called Thompson compromise abandoned the impending August cutoff date and, instead, placed a limit on the amount of prime land that could be mined in Illinois—26,000 acres, of which roughly 13,000 had already been mined. Operators would still be required to restore the newly authorized 13,000 acres to 100 percent of their pre-mining productivity, as would have been required had they not been grandfathered; operators would, however, be forgiven the pre-permit demonstration of reclamation ability that would otherwise have been required.
Opinion about the significance of the new plan varied. DMM spokesmen noted that it was unlikely that all of those new 13,000 acres would meet the many criteria required to qualify for the grandfather exemption. Even if they did, those acres would have to meet stringent reclamation standards, and that 13,000 acres is in any event a fraction of 1 percent of the state's prime lands. Illinois South took violent exception, calling the compromise an "election year giveaway" to Big Coal. There was no threat to miners' jobs, Illinois South's Sheketoff explains today; the only reason permits to mine were in jeopardy was because "coal companies didn't plan and DMM didn't push 'em."
The farm community was less vocal but hardly more happy. Clemmons of the Illinois Farm Bureau, for example, recalls that the compromise had been presented to his organization as a fait accompli, and that requests for information to be studied went unheeded. "We didn't like the way it was handled," he says. Asked if farmers felt that the governor sold them out to the coal industry, Clemmons says, "Plainly speaking, that's probably an accurate statement."
The grandfathering fight in Illinois was a little like World War I trench warfare without the blood: expenditures of substantial energy spent in organized efforts to control very small amounts of real estate. There have been some fruits of peace since the Thompson compromise. The Illinois Coal Association and the Illinois Farm Bureau, for example, have formed a joint committee of board directors to improve communications and (in Pensoneau's words) to resolve disputes "without acrimony."
Protecting public interests
Unfortunately, Illinois' strip mine policy can't be understood solely in terms of the political protection of moneyed interests. Consider the parties involved in drafting Illinois' fledgling program—the bureaucratic entities such as DMM and OSM, citizens' groups such as Illinois South, and state chapters of environmental organizations, farm organizations such as the Illinois Farm Bureau and the Illinois Farmers Union, the governor's office and its federal counterpart, the White House. Each holds different, even divergent views of the SMCRA. Even the coal industry is riven; the most strenuous opposition to the regulatory impositions of the SMCRA has come from small operators while the large national firms (who can afford to be) have been more accommodating.
Was the purpose of the SMCRA the protection of a national interest? Or is the act better understood as a federally guaranteed means to protect local interests against the indifference of the states? The difference is no mere debating point. For instance, the threat posed by the strip mining of Illinois soils to the nation's food production capacity is modest, even miniscule; the full restoration of mined farmland, however desirable under the act, would not be a matter of urgency.
Yet strip mining accounts for as much as 13 percent of the land area in certain Illinois counties such as Knox or Fulton. By providing a means to compel the restoration of productivity on such lands, the SMCRA provides local farmers, bankers, and others the means to preserve an economic resource vital to the locality. The role of federal law as the protector of local interests is most vividly apparent in Appalachia, where whole mountains continue to be despoiled by coal operators under the forgiving eye of state regulatory officials.
Illinois' regulatory record was not as pathetic as those of Appalachian states, a condition perhaps more attributable to the fact that Kentucky hollows can't sustain tens of thousands of prosperous and politically savvy corn farmers. Illinois' regulation of the coal strippers began in 1962. The state law was strengthened twice thereafter, until by 1975 Illinois had one of the toughest reclamation laws in the U.S. Even so, the 1975 Illinois law offered scant protection for certain lands damaged by such surface effects of deep mining as coal processing plants. It allowed numerous exemptions, required topsoil and subsoil to be segregated and replaced after mining, but operators were not required to prove that the pre-mining productivity of the land had been restored as a result. It gave county boards the right to review reclamation plans before mining permits were issued, but made no provision for equipping those boards with the technical and legal expertise they needed to challenge coal company experts effectively.
It was in the last realm—public participation in the promulgation of rules and the issuance of permits—that the federal act is strongest compared to the 1975 Illinois law. Congress could not trust the states to enforce its ambitious new standards, and so gave citizens in the states expanded—even unprecedented—opportunities to monitor compliance with the act by both industry and state regulators. Those opportunities included formal comment periods during the rulemaking and permit review processes, public access to documents, and the right to petition for enforcement actions.
No organization has made more effective use of SMCRA as a stick with which to rouse a sleeping state bureaucracy than Illinois South. Its staff shares Congress' skepticism about the states' commitment to the SMCRA goals. Illinois South's complaint in 1980—that DMM pursued what the organization called a "closed door policy" during the drafting of Illinois' program—has been repeated at other times over other issues. Sheketoff complains that DMM "creates buffers from the citizens. They act as if citizen input has no value, that they don't know anything."
Illinois South has zealously protected that right of access to the process as essential to what project staff in 1980 described as "helping coal county residents to exercise their rights." Using workshops and manuals, Illinois South has trained hundreds of local government officials, farmers and landowners in the arcana of both the SMCRA regulations and mining technology.
The fact that most of the citizens who have most assiduously used the public participation provisions of the SMCRA have been Illinois South staffers may have soured DMM on their wisdom. Douglas Downing, the supervisor of DMM's Land Reclamation Division, notes that most requests for comment seldom bring a response.
While it is true that the department might be expected to prefer restricted public access to decision-making for the sake of its clients' interests, it is also true that DMM has its own internal, bureaucratic motives for doing so.
As early as 1979, Gov. Thompson was echoing his department's complaint that interior had taken an 87-page strip mine law and "wrapped 560 pages of red tape around it." The new demands imposed by the SMCRA or the regulatory bureaucracy of the states were considerable. Neither was the surrender of bureaucratic sovereignty to OSM likely to sit well with state administrators, especially those who had just proudly put a program of their own in place, as Illinois had done in 1975.
Arguments over whether Illinois' 1975 law was good or bad usually obscure the fact that to many of the people who administered it, it was good because it was Illinois'. The aggressive rule-making by the OSM during the administration of Interior Secretary Andrus irked DMM, as did OSM's demand for strict accountability from the states. Andrus's unforgiving environmentalist standards were responsible in part for OSM's attitude, but some of the friction resulted from the poor fit one gets trying to squeeze the reclamation needs of 50 different states into single body of federal regulations. James Fulton, who currently heads OSM's Illinois office, had a hand in drafting some of the Andrus-era regulations during a stint in Washington. "The regulations had to deal with Illinois, which had a professional staff already in place," Fulton recalls, "as well as states like Alabama, which didn't even know what the terms meant."
During the protracted wrangles over the drafting of Illinois' reclamation program, DMM also showed itself to be an ardent champion of the state's rights against the courts, OSM and, it seemed, even Illinois citizens. In a letter to Andrus in 1980, complaining about OSM's partial rejection of DMM's proposed program, DMM director Brad Evelsizer complained, "The sovereign state of Illinois, the party most affected by your decision, got less attention than comments made by citizens' and other groups. . . ."
The remarks drew an indignant rebuttal from Illinois South, which was one of those citizens' groups. In an answering letter, Illinois South told Evelsizer that his distinction between the state and its people was "most disturbing" and "unfortunate." His attitude, it concluded, was a "very revealing symbol of the deep gulf that exists between state government . . . and the people in Illinois' coal producing counties."
Deep gulfs exist between all of the parties to the new strip mine policy. Environmentalists and coal county farmers in Illinois have trusted neither the state nor the industry, often refusing to acknowledge that the two are actually separate entities. The states have not trusted Congress to protect their interests, and Congress, with equal reason, made clear its lack of trust in the states' resolve to implement the act consistently with what Congress saw as the national interest. Neither did Congress trust the executive branch to enforce the act—a factor that led to all major federal environmental laws of the 1970s being (in the opinion of frustrated administrators at least) excessively prescriptive and narrowly drawn.
No one, in short, was entirely happy with the SMCRA as passed. Rather than settling the dispute over a federal strip mine law, the passage of the SMCRA in 1977 in some ways began it. All the parties to the law entered the rule-making process and, when that failed, brought court challenges in pursuit of agendas left unfinished by the legislative process.
Wrangling will continue
The wrangling over Illinois' reclamation program is still not finished. Recent court decisions have largely frustrated former Interior Secretary Watt's attempt at wholesale rule reform at OSM. Even so, the changes in the federal guidelines, while not as significant as Watt (or industry) hoped, nevertheless will require amendment of the program (as OSM's Fulton puts it) to "fill in some of the holes and gaps."
Even so, the Illinois program is enough in place that one may begin to assess its quality. Russell Boulding, an environmental consultant commissioned by Illinois South to survey compliance by Midwestern states with the SMCRA's prime farmland provisions, gave Illinois' program mixed reviews. In his report, The Lost Harvest, Boulding described the Illinois program as "a strange mixture of the best and worst" of reclamation practice. He praised the state's stiff standards for nonprime row-crop land and its careful analysis of reclamation plans, but criticized too-liberal exemptions and the failure to demand sufficient proof of post-reclamation productivity.
In contrast, OSM was full of praise for Illinois' program in its most recent evaluation. OSM commended DMM for its record of field inspections and the thoroughness of its permit reviews, among other things, and criticized DMM mainly for what it called "deficiencies" in enforcement. OSM, however, is not a perfectly neutral observer. OSM itself describes what it calls "the special formalized relationship" that exists between it and the states under the SMCRA. Perhaps more to the point, OSM (often against the preferences of its professional staff) must dance to tunes being played in Washington. Under Andrus, relations between OSM and the states were contentious; in the view of critics in Illinois and elsewhere, the attitude of conciliation that Watt and his successor have brought to OSM's dealings with the states since 1981 discredits OSM's analysis to some extent.
Seven years of living with the SMCRA has, as in so many marriages, revealed certain weaknesses in the act. In September 1984, DMM director Evelsizer asserted in a public statement that many of the criticisms Boulding had leveled at the Illinois program in The Lost Harvest were "largely the result of the author's disagreement with federal regulations and federal law," not with DMM. Illinois South, which endorsed Boulding's findings, disagreed. The organization does not regard the federal law as perfect, however, at least as it applies to Illinois. Illinois South has already announced its intention to "take to the frontlines" some of Boulding's recommendations for reform. Congress, they insist, should amend the act to end grandfathering and the exemption of prime farmland because of historical use, and to require that all row-crop land be restored to the stringent standards now applied only to prime land; OSM and the states, for their part, should limit their exemptions from prime land standards and improve reclamation requirements to insure reclaimed productivity.
Such reforms could be achieved at the state level. The 1980 law that authorized implementation of the federal strip mine program in Illinois includes a stipulation, however, that state regulations be "no more stringent" than their federal counterparts. That qualifier resulted from equal parts of industry pressure and legislative resentment against what many in the General Assembly saw as federal regulatory busy-bodies, and DMM has no plans to lobby at the Statehouse to remove it. Were he a congressman for a day, however, DMM's Doug Downing would make a change or two in the SMCRA. Downing has the usual professional administrator's complaints about "nitpicking" rules. As to basics, he says, "I wouldn't eliminate the basic prime farmland protections. If I wanted to do that, I wouldn't be in this job." Speaking of the costs the new reclamation rules impose on operators, Downing adds, "One problem with the federal law that really gives me heartburn is that it's putting a lot of small operators out of business."
The disagreements over Illinois' reclamation program extend beyond the statutes. The fight over the implementation of the SMCRA has been grueling. Relations between the principal antagonists, DMM and Illinois South, are especially touchy. OSM's Illinois office, which has found itself a reluctant go-between in these disputes, states in its annual program evaluation, its belief that DMM "is reluctant to act on problems that have been raised by [Illinois South]," while Illinois South "does not recognize most overall program accomplishments." OSM's Fulton expands: "I don't know of any other state where it's all so bitter as it is in Illinois." Fulton adds, "When the state got primacy, they didn't have to agree to be nice to Illinois South. And Illinois South isn't nice to the state."
The differences between DMM and Illinois South (and to a lesser extent between the broader constituencies those organizations represent) will be hard to bridge, stemming as they do from such fundamentally different assumptions about public policy, law and the world. DMM, staffed by professional bureaucrats, judges its works in terms of the letter of the law; Illinois South invokes the law's spirit in opposition. Put another way, DMM judges Illinois reclamation work by what has been, and is pleased; Illinois South considers what ought to be, and is not.
The two parties' views on the coal industry are illuminating. Says Downing, "This is not the 1920s, or even the 1950s, when big corporations could do as they please. Now they realize that they're socially responsible for what they do. They try not to create adverse publicity for their industry. If they want to mine coal in Illinois, they realize they have to do it properly." Illinois South's Sheketoff has come to a less flattering conclusion: "Any commitment they have to reclamation is for public relations. The coal industry only does what the law forces them to do."
The typical Illinois citizen may be forgiven asking whether the industry's motives matter as long as coal strippers comply with the rules. The ultimate test of the SMCRA in Illinois is (as OSM's Fulton puts it) what happens in the ground. It is still too soon to tell. The SMCRA set 10 years as a reasonable time span for the revivification of mined soils. Early tests are promising, and several larger firms are exploring the use of new technologies from Europe and Japan to solve some of reclamation's more stubborn problems such as soil compaction.
Time, experience, new equipment will all help. There remains a more than remote possibility that some Illinois land could never be restored to the SMCRA standards, and will have to be left unmined as a result. Either way, its supporters will tell you, the law would have accomplished its purpose.
Sidebar: Mine subsidence: sinkholes, sags and liability
Surface mining is not the only kind of mining that can damage the surface. Underground mining has its effects on the land as well. The federal Surface Mining Conservation and Reclamation Act (SMCRA) of 1977 sought to remedy the surface effects of deep mining as well as strip mining. And while strip mining in Illinois intrudes on the land more dramatically, deep mining potentially affects very much more of it.
Refuse piles and coal preparation plants are two ways by which deep mines may scar the land; Illinois regulations (after some prodding by citizen groups and their federal overseers) require that land so disturbed be reclaimed to the same standards applied to strip mines. It is the subsidence of the surface from collapsing underground mine structures, however, that Rich Clemmons of the Illinois Farm Bureau and others see as "a looming problem" in Illinois.
According to a 1976 survey, some 750,000 Illinois acres had already been undercut by deep coal mining. Traditional room-and-pillar mining methods leave from 30 to 50 percent of a coal seam standing in the form of pillars that support the mine roof. The system leaves a stable undergirding for the surface above, but even the stoutest pillars can collapse from age or water damage. When pillars crumble, the ground above them can collapse into a "pit," which is a sink-like hole that can measure as much as 100 feet across, or a "sag," which is a slumping of the surface across an area sometimes as large as an acre.
Newer mining methods are able to extract more of the coal in a seam. The mine roof is allowed to slump gradually into the space left by the coal just excavated. Surface subsidence above such mines is thus deliberate and controlled, but the effects are otherwise similar to those caused by weakening room-and-pillar mines.
Not all land undercut by mining will necessarily collapse; many parts of Illinois have a saving stratum of rigid rock between the surface and the spent coal seam. Even so, damage from subsidence in the form of cracked building foundations, broken water mains and subsoil drainage systems has been estimated in the millions—one reason why the state of Illinois in 1980 began requiring insurance companies in 34 mined-out counties to offer homeowners policies protecting against subsidence-caused losses.
Coal companies typically include clauses in the mineral rights contracts that they sign with landowners waiving the companies' liability for subsidence damages. The SMCRA, however, insisted that companies were liable for such damage, at least for damage resulting from mining done after January 31, 1983. The SMCRA thus raised an awkward legal point. Illinois regulations, which were promulgated under the federal act, make coal operators liable for subsidence damage to both land and the structures that sit on it. The Illinois Coal Association (ICA) in 1984 filed a petition seeking a relaxation of those rules. Taylor Pensoneau of the ICA explains that coal companies operating in Illinois acknowledge their responsibility for damages traceable to their operations. "The only thing that the companies try to avoid," he adds, "is getting exploited—taken to the cleaners if you will—by individuals seeking compensation for damage that has no relationship to coal mining."
The subsidence risk in Illinois is not so much to buildings, since most coal mining, above or below ground, now takes place in rural areas. (Damages caused by old works are the responsibility of the state's Abandoned Mines Reclamation Council.) Field drainage systems, however, fall under the official definition of "structure." Some underground tile systems date from the 19th century and would be enormously expensive for the farmer to repair or replace. The threat to them is (in the phrase of statehouse journalist Mike Lawrence) a classic "hard hat vs. hoe" issue.
To date Illinois' Department of Mines and Minerals (DMM) has been insistent on the liability issue. The agency's stand is described by the Illinois South Project, the industry watchdog, as "a step in the right direction" toward strict reclamation enforcement. (Illinois South staffer Chuck Sheketoff adds that the department arrived at its present position only "under pressure and after a long time.")
Several recent applications for deep mine permits have been delayed while DMM demanded more complete proof of the applicants' intent to meet the liability requirements. Those requirements include a pre-mining survey of damageable structures and descriptions of specific measures to be taken to mitigate or remedy any such damage.
The firms involved have stated their intention of assuming full liability. At the same time, however, they insist that the state regulations do not take precedence over contractual arrangements made with property owners. "From a legal viewpoint, subsidence waivers remain a valid right under Illinois law," says the ICA's Pensoneau.
While the hearing process for the disputed permits proceeded, the ICA's petition was denied in September. DMM noted that while state courts had indeed upheld the validity of subsidence waivers, such decisions had been rendered before the state of Illinois had declared, through the subsidence regulations in its reclamation program, an official interest in protecting surface land and structures from damage. A court challenge seems likely. ●