Corn, Coal, Corn
Can a corn field have a life after strip mining?
Strip-mining pitted two great Illinois industries—agriculture and coal mining—against each other. Coal had long dominated, with the result that state regulations regarding the reclamation of mined land were perfunctory. I was asked to write about the issue often, and then, suddenly, it ceased to interest anyone. I never bothered to explore why; I was too grateful to not have to write about it again.
When President Jimmy Carter signed the federal Surface Mining Control and Reclamation Act (SMCRA) on August 3, 1977, he ended a ten-year congressional battle over what many environmentalists have described as the single most important issue of the 1970s. The bill set the toughest standards yet governing the operation and reclamation of strip mines, prescribed for the rescue of lands mined and abandoned under the often casual guardianship of the states, and set new limits on the surface effects of underground mining. The act is the most sweeping promise government had yet made to end what one observer has called coal mining's "legalized indignity to the land."
But in the two and a half years since its signing, the SMCRA has proven to be less a truce than a call to arms. This is especially true in Illinois. The battle over who is to implement the SMCRA, how strictly it is to be implemented, and who shall pay for it. The contest has revived ancient antagonisms between miner and farmer, coal company and environmentalist, local government and the state, Springfield and Washington. The fight over strip mining has ceased to be a backyard squabble and at times looks like a full-fledged civil war.
Illinois passed its first strip mine reclamation law in 1962, and tougher laws were passed in 1968 and again in 1971. The environmental movement was cresting in Illinois in those years and an environmentally activist governor—Richard B. Ogilvie—occupied the governor's office. The 1971 Illinois Surface-Mined Land Conservation and Reclamation Act (passed with Ogilvie's support) was the most demanding yet. But the state's farmers, environmentalists, and some coal county local governments continued to press for amendments to the 1971 act to make it even tougher. They succeeded in 1975. Among other things, the 1975 amendments require that topsoil removed during mining be segregated and replaced after mining.
The tougher the better
Illinois's amended 1971 strip mine act is one of the toughest state reclamation laws on the books. But even the toughest state laws had not been tough enough, because coal county legislators were vulnerable to pressures from disapproving coal interests. To the supporters of the SMCRA, Congress would have to do what the states had not done.
For example, the Illinois act mandated topsoil replacement on row-crop land on the assumption (some said the hope) that the technique would result in the recovery of significant but unspecified soil productivity. The federal SMCRA, on the other hand, demanded that coal companies restore such land to 100 percent of its pre-mining productivity. During debate on the SMCRA, Illinois Sen. Charles H. Percy had noted that his state has roughly one half the 12 million acres of prime-farmland in the U.S. that sits atop strippable coal reserves. He argued, "The value of prime farmland to the nation's future food production is too great for us to allow for any possibility of its irresponsible destruction." ("Prime" land in this case is a term of scientific classification as well as praise; a soil is judged "prime" by the U.S. Soil Conservation Service if it meets standards of organic content, porosity, grade, and so on.) Accordingly, Percy successfully amended the SMCRA to require that permits to strip prime farmland would not be issued unless those seeking the permit could demonstrate in advance, by means of soil tests, demonstration plots, or similar means, their ability to restore such land "to a condition at least fully capable of supporting the uses to which it was capable of supporting prior to any mining."
More protectively yet, Section 522 of the SMCRA provides procedures by which certain lands might be ruled off limits to strip mining altogether. The section allows these lands (which include prime farmland, ecologically sensitive areas, and officially recognized historic sites) to be designated by the states as "unsuitable for mining" upon petition by "any person having an interest which is or may be adversely affected" by such mining.
The SMCRA's list of prescribed remedies is long. It includes impoundment of runoff water, daily notice to nearby residents of blasting, and even prevention of certain surface effects of underground mining such as subsidence. The sinking of surface land that occurs when old tunnels gradually weaken and collapse underground is such a serious problem in some mined-out parts of Illinois that legislation was enacted in 1979 to establish a pioneering subsidence insurance program to covers home owners in 34 heavily mined counties against leaky basements and cracked driveways.
But it has been the enforcement procedures as much as the act itself which have caused controversy in Illinois and other coal states. "Because of the diversity . . . of physical conditions in areas subject to mining operations," the act states, "the primary governmental responsibility for developing, authorizing, issuing, and enforcing regulations for surface mining . . . should rest with the states." Individual states were given the option of drafting their own regulatory programs, and those programs in turn were expected to be consistent with rules and regulations derived from the act itself by the newly formed Office of Surface Mining (OSM) in the U.S. Department of Interior. If a state chose not to enforce the SMCRA within its borders (so far all 24 coal states have chosen to do so) or, more likely, if a state failed to develop what OSM decided was an acceptable regulatory program, OSM would enforce the act for the state.
Originally, coal states were to have these permanent regulatory programs drafted, approved and in place by June 1980. (Because of delays at OSM in drafting its own permanent regulations, the deadline was later extended by seven months, until January 1981.) Until then, the act was to be administered under the rules of the so-called interim program which went into effect in May 1978. The interim program was to be run jointly by OSM and the respective state regulatory authorities. The interim program would allow OSM and the states time to devise more comprehensive permanent controls. These interim rules were less stringent than those expected in the permanent program; indeed, some key parts of the SMCRA, such as the lands-unsuitable-for-mining section and certain provisions governing the surface effects of deep mining, would not be enforced at all until the permanent program went into effect.
Translation comes hard
Translating this simple-sounding scheme into an actual program has so far consumed two-and-one-half years, and still is not finished. Each piece of enabling legislation, each new rule, each public hearing has been the occasion for small battles as familiar Illinois interests seek rules interpretations most advantageous to itself.
The Illinois coal industry, predictably, has denounced the SMCRA as a disaster. Spokesmen for the Illinois Coal Association (ICA) have complained that the prime farmland provisions are too demanding and that the technology to accomplish the hoped-for 100 percent productivity recovery is untested. Further, they complain that, because reclaiming Illinois's rich soils will be so much more demanding a task than reclaiming, say, western grassland, those provisions, even if technically feasible, impose a debilitating economic hardship on an industry that is already having trouble marketing its product.
The Illinois industry also fears that the potential effect of the lands-unsuitable-for-mining provision will keep them from exploiting easy-to-mine holdings, and they complain (along with their counterparts in other coal states) that the permanent regulations drafted by OSM are far more zealous in their scope than Congress ever intended. As a result, says Consolidation Coal Co., which runs strip mines in Illinois, complying with "unnecessary" OSM requirements will cost it more than $1.5 billion over the next decade.
It is too early to tell whether such dire predictions will come true. The national industry warned two years ago that implementing even the interim program would cause many mines to close, but to date, there have been no significant closings; indeed, national production increased. In Illinois, during eight of the nine months after the implementation of the interim program, production at strip mines did drop. But so did production at deep mines unaffected by SMCRA, and the ICA has put the blame for that more on the federal Clean Air Act than on the new strip mining law.
Thompson not happy
Gov. James R. Thompson is also less than enthusiastic about the SMCRA. Last August, for instance, Thompson complained in a speech that the Department of Interior "took an 87-page strip mining law and wrapped 560 pages . . . of red tape around it before dropping it on the industry and the states.'' Thompson once reportedly told a meeting of coal operators that he would like to tell the feds to take the law and "do you know what with it." Thompson's remark was cited by a member of the Herrin-based Illinois South Project (ISP) during a congressional hearing in March 1979, as evidence of what ISP called the state's "stalling" on SMCRA implementation.
Thompson's unhappiness with the act is reflected (indeed may be traced to) widespread unhappiness of the Illinois Department of Mines and Minerals (IDMM), the agency he designated as the state's regulatory authority. IDMM stands at a friction point with OSM, its federal counterpart. Though many IDMM staffers privately share the misgivings expressed by Thompson and the industry about the economic effects of OSM's hard reading of the SMCRA, officially their complaints are bureaucratic. IDMM says that OSM does not allow for state rule-making and legislative processes, and that OSM itself suffered delays in delivering its own rules to the states, with the result that compliance schedules are unrealistically short. They also allege that many of OSM's rules and regulations are unrealistically demanding or dangerously vague. For instance, IDMM's head of reclamation, Douglas Downing, notes that, regarding the regulations banning mining of prime soils, it is often impossible to separate prime soils from non-prime soils in a strip mine, so that one can't be mined without mining the other. The evaluative criteria are too general to tell which is which, according to Downing.
State against feds
In May of 1979, IDMM filed suit in a Washington, D.C., federal district court against OSM and the Department of Interior. The suit claimed that some 41 regulations of the OSM's permanent regulatory program were "inconsistent with the Federal Act," "without proper technical basis," or were "discriminatory against the mining of Illinois coal." That suit was consolidated with a second, similar action taken by the State of Virginia and some 100 coal companies. Some regulations have since been ordered revised by the district court judge, though not all the complaints have been ruled on yet.
Such court challenges have improved the regulations in the opinion of some experts, but they have further complicated the process of implementation. A federal judge in Virginia, for example, ruled in January that parts of the SMCRA are unconstitutional because they impose invalid restrictions on the use of private land. A second federal judge in the District of Columbia ruled a month later that such federal controls were valid and unavoidable. Such judicial disputes may require settlement by the U.S. Supreme Court. Until that happens, OSM has been granted temporary permission by Chief Justice Warren Burger to continue enforcing its regulations. The D.C. ruling, by the way, was issued two weeks before IDMM's March 3 submission date for its proposed permanent regulatory program with OSM. There was no time for IDMM to rewrite those regulations affected by the judge's ruling, and IDMM complains that OSM is preparing to circulate a proposal for review which already is irrelevant in some respects.
Participation by ISP
The SMCRA, however, is not without friends in Illinois. They have worked as diligently to preserve or even strengthen the SMCRA as the industry has worked to weaken it. Best known of this group is the Illinois South Project. ISP staffers have been credited with being expert in the arcana of the federal law. ISP has lobbied hard on behalf of its southern Illinois constituents for changes in both the state's interim and permanent programs that deal with such diverse matters as blasting and prime farmland reclamation.
ISP also took part in OSM's own rule-making process and was party to the negotiations among legislators, environmentalists and the industry over P.A. 81-1015 (the Surface Coal Mining Land Conservation and Reclamation Act), which established the state's permanent regulatory program. ISP has also been an unswervable advocate for increased public participation—sometimes loudly—because of what ISP has called the "deaf ears at Mines and Minerals." ISP has been bipartisan in its criticism; it deplored the decision in January by OSM, for instance, to delay by seven months the effective date of the states' permanent programs. The delay was largely in response to coal states which complained that delays in publishing OSM's own regulations would make it impossible for them to meet the original deadline.
Illinois South has been joined on the barricades by the Illinois Environmental Council and several coal county citizens groups, such as the Reclamation COAL-ition and the Statewide Citizens' Coalition. In the fall of 1978, an Illinois Citizens' Coal Conference was held in which representatives of such groups from seven coal counties developed an agenda of legislative goals for the state's permanent program. These goals included, among other things, the extension of the county review processes. The conference statement said: "It is imperative the people have a voice," and that "past . . . events have demonstrated that state government and agencies have resisted, discouraged, disregarded, and ignored citizen, organizational, and local government recommendations.''
Suspiciousness sometimes seems to be the only thing that thrives in strip mined soil. Some state and industry officials hint darkly at the "ulterior motives" of some strip mine opponents, while those opponents, such as the Illinois South Project, make dire accusations against government, such as contending that the Thompson administration is "defending a policy of closed-door government decision-making."
To fully understand the roots of such suspicion it is necessary to know something about the history of strip mining in Illinois—and what is equally important—something of the state and federal strip mine bureaucracies. Though each is charged with the same mandate, IDMM and OSM in fact have almost completely different constituencies, and thus have different priorities. It is a difference that shows itself in many ways, but which may be summarized by their administrative settings: the Illinois's reclamation program is run by a department of mines while the federal program is run by the same department that manages conservation and national parks. The SMCRA is welcomed by some in Illinois as a weapon against not only the industry, but also their own state government, whose steadfastness in the face of industry pressures they no longer trust. For example, a member of Citizens for the Preservation of Knox County, an anti-strip mine group, told an audience in nearby McDonough County that the federal law was the best way to stop strip mining, because IDMM "is not regulating the industry." At the same time, IDMM complains—as one staffer phrased it recently—that the states "have no input whatsoever. It was supposed to be a partnership and it hasn't turned out to be one at all."
A test in court
Not surprisingly, official relations between IDMM and OSM are not always cordial as was proved in federal district court in Springfield last December. IDMM had granted a permit to the Midland Coal Co. to strip-mine an additional 1,057 acres of its holdings in Knox County. Under a grandfather clause of the SMCRA, mines being operated under permits issued before August 1977 were exempt from the strict reclamation standards demanded of new mines. IDMM had ruled that Midland's 1,057 acres—contiguous to the company's existing pit by virtue of a half-mile haulage road—was not a new mine but merely an expansion of the existing one, and so was exempt from the new reclamation standards. OSM argued that the permit was invalid because the expansion was, in effect, a new mine, and OSM threatened to take action against Midland. Midland in turn sought an injunction against OSM, which the court granted. The company argued that it had fulfilled its obligations under the law and that if OSM had a complaint, it was against IDMM, not the coal company.
Federal attorneys warned that the ruling would prevent the SMCRA from being enforced "in any way the state didn't want it to be" and promised to appeal. OSM, rebuffed in court, summarily withdrew $756,000 in federal grant money budgeted through IDMM to pay for the state's SMCRA implementation program. IDMM director Brad Evelsizer responded by calling the action an "outrageous affront" while Midland unsuccessfully asked the judge to hold U.S. Interior Secretary Cecil Andrus in contempt of court. Eventually a settlement was negotiated between the warring state and federal agencies which restored the federal grant on condition that IDMM hold in abeyance any requested "grandfather" exemptions of the sort won by Midland. But, in Evelsizer's words, "the basic principles of federal-state cooperation" on which the SMCRA was built had been shaken to their foundations.
If everything goes as expected, the state's permanent regulatory program will be approved and will go into effect probably no later than January 1981. Though court tests so far have caused OSM to amend some regulations, the basic aspects of the SMCRA have survived intact. It would appear that the only relief a worried coal industry might expect is political. The U.S. Senate, bowing to pressure from coal states, voted last autumn to require states to adhere only to the general standards contained in the SMCRA itself and not the more stringent regulations drawn up by OSM; that measure is bottled up in the House Committee on Interior and Insular Affairs chaired by Rep. Mo Udall, one of the principal backers of the original SMCRA.
Strip mining and land
What, then, does the future of strip mining in Illinois look like? It depends on who one asks. The industry maintains, quite accurately, that strip mining is only a temporary use of the land, that all the land so mined in Illinois since the start of mining in the 1830s has affected less than one half of one percent of the state's land area while shopping centers, subdivisions, reservoirs, and highways have consumed perhaps five times more land.
However, the pace of strip mining has been accelerating in Illinois. There were 98,000 acres mined in the 16 years between 1962 and 1978, while all the acres mined in the 100 years before that amounted to only 103,000. And the future? Although it is difficult to know the exact total, it is estimated that hundreds of thousands of acres in Illinois are held by coal companies for potential stripping. The presumed threat of such ambitious mining plans to the state's farmland resource is substantial. But just as threatening to the farmland resource is the annual loss of tons of topsoil from erosion caused by farmers' own careless tillage methods, a fact the coal industry does not hesitate to point out.
The economic impact of the new strip mine rules is equally hard to assess. The requirement that companies demonstrate in advance the ability to reclaim prime soils to full productivity may indeed prove unworkable. (In January, a delegation from the industry and Illinois's United Mine Workers met in Springfield with Sen. Percy to ask him to soften his prime farmlands provision.) IDMM officials, however, point out that companies have been practicing much the same sort of soil replacement techniques under state law since 1975. And while coal companies complain that the requirement will drive them off prime farmland, their critics reply that is exactly what the law ought to do; only about 12 percent of the state's vast coal reserves are considered strippable anyway, so there are other places besides cornfields to dig coal in Illinois.
The possibility of strip mine opponents using the lands-unsuitable provision as a tactical tool to ban mining in some areas is very real, though still presumed. The provision is likely, as its critics contend, to add time and money to the process of mining coal. But though the standards for ruling such lands off limits to mining were set by OSM, the final decision rests in state hands. In fact, the real sleeper in the permanent program may not be the prime farmlands requirements, or the lands-unsuitable provisions, but the rules limiting surface effects of underground mining, such as subsidence. One high IDMM official guesses that the added expense of meeting these regulations for surface effects of underground mining may again tip the economic balance away from underground mining and back toward strip mining, with the result that the SMCRA, instead of restricting strip mining in states like Illinois, may prove to be an incentive to expand it.
The final significance of the SMCRA is likely to land somewhere between the industry's doomsaying and its opponents' easy reassurances. That is why Illinois is, as the regional OSM director noted in a speech last fall, "the state to watch" in order to learn whether the federal strip mine law will work. ●
Sidebar: Apologies for old insults to the land
The 1977 Surface Mining Control and Reclamation Act (SMCRA) seeks not only to protect land against future mining abuses but also to make amends for past abuses. Title IV of the act provides for funding the reclamation of the nation's estimated one million acres wrecked by abandoned deep and surface mines; the work is to be performed by states according to plans approved by the U.S. Office of Surface Mining.
The state agency responsible for the rescue effort in Illinois is the Abandoned Mined Land Reclamation Council (AMLRC), chaired by Lt. Gov. Dave O'Neal. Funds for the permanent program will come from reclamation fees levied by the federal government on present mining operations at a rate of 15 cents per ton of coal recovered by deep mining and 35 cents per ton for strip mined coal. A state is eligible to receive half the money collected within its borders; Illinois's share since collections began three years ago comes to at least $13 million.
Is that enough? In Illinois, there are almost 700 "problem areas" comprising some 20,000 acres located mainly in three counties—Williamson, Saline, and Fulton. A study by Southern Illinois University's Cooperative Wildlife Research Laboratory found 75 of the problem sites to be potentially hazardous and 30 of these were described as extremely dangerous. The problems include acid runoff from mine wastes that is polluting nearby streams, poorly sealed shafts which pose dangers, sinking or subsiding of the land atop decaying underground tunnels, and "gob" or slag piles which erode or sometimes collapse.
As is the case with the other provisions of the SMCRA in Illinois, the abandoned mines reclamation provisions are being enforced on an interim basis until the state's permanent program is approved. Under the terms of the SMCRA's interim program, the federal government has spent roughly $150,000 solving "emergency" situations at seven sites (such as a methane gas leak last fall from an old deep mine near Eldorado in Saline County). Another $1 million is being spent through cooperative agreements with the AMLRC to remedy between 25 and 30 "extremely dangerous" sites.
As was the case with strip mine reclamation, Illinois was a pacesetter among states. The original Illinois Abandoned Mined Lands Reclamation Act was signed into law in 1974. In its early years, however, the AMLRC was hampered by politics within the Democratic Party. The AMLRC's seven members were named by Gov. Daniel Walker, but the council chairman, by statute, is the lieutenant governor, who then was Neil Hartigan, a rival to Walker in the party. The resulting split votes were so predictable that some observers nicknamed the AMLRC the "7-to-1 agency."
Yet, during the AMLRC's early years, one important pilot project was begun. Using scientific help from the Argonne National Laboratory and at a cost of almost $800,000, the AMLRC reclaimed the 34-acre Consolidation Coal Co. No. 14 mine site near Staunton in Macoupin County. Pollution in a nearby creek was halted, and poisonous wastes were buffered by topsoil and replanted. The project was successful, and the site is being transferred by the state to the city of Staunton for use as a park, a wildlife refuge, or even an outdoor biology laboratory for schoolchildren.
That pilot project may be only one of many good things to come. The abandoned mined lands provisions of the federal SMCRA will be in effect for 15 years, which should be time enough for Illinois to make a "big dent" in its 20,000 acres of abandoned mined lands problem, according to AMLRC director Al Grosboll. Grosboll notes, however, that there are another 180,000 acres in Illinois that have been affected by mining in some way. Some of that land, such as Vermilion County's Kickapoo State Park, has been reclaimed already, but further improvements to reclaimed land are always possible. For example, the AMLRC is studying ways to stop sedimentation and strengthen unstable roadways in the park. As a result, Grosboll expects the program to be extended beyond its present 15-year lifespan. In any event, the poisoned water and barren landscapes that are mining's legacy in parts of Illinois will be erased forever. ●
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