Ann Maher Dec. 3, 2014, 10:32am

Illinois landowners suing to suspend new state rules for hydraulic fracturing are appealing Madison County Circuit Judge Barbara Crowder's order denying their request for preliminary injunction.

Fairview Heights attorney Penni Livingston filed notice of interlocutory appeal Dec. 1 seeking reversal of Crowder's finding that plaintiffs failed to show they will suffer irreparable injury if rules adopted by the Illinois Department of Natural Resources (IDNR) are published.

In their suit filed Nov. 11, plaintiffs asked for declaratory judgment and preliminary and permanent injunction challenging the process followed by the IDNR when it adopted "fracking" rules.

They were in Crowder's court Nov. 18 seeking preliminary injunction, arguing that the IDNR violated statutory rulemaking procedures under the Hydraulic Fracturing Regulatory Act (HFRA) enacted by the state legislature in 2013. The Act requires the IDNR to adopt rules before permits can be issued.

Hydraulic fracturing, also known as fracking, is a process where a high pressure fluid is injected into a wellbore to create cracks in deep rock formations through which natural gas and petroleum will flow.

Crowder ruled Nov. 21 that plaintiffs failed to meet their burden of proof of imminent harm.

"Facts must be alleged with certainty as to what harm the plaintiffs will incur," Crowder wrote.

"Conclusory allegations that some of the plaintiffs have land near some areas where someone may file an application for a permit do not state irreparable harm. No applications have been filed, let alone granted. Plaintiffs have not established imminent harm or irreparable injury will occur simply by the publishing of the rules."

The plaintiffs include Marie Smith of Madison County, Mark Donham and Sam Stearns of Pope County, Tabitha Tripp of Union County, Nathan Czuba of Cook County, Annette McMichael of Johnson County, Vito Mastrangelo, an attorney from Jefferson County and plaintiff co-counsel, and Southern Illinoisans Against Fracturing Our Environment (SAFE).

"Plaintiff SAFE reports that the following health and environmental impacts of hydraulic fracturing have been recorded in scientific research: contamination of water supplies, displacement of wildlife, noise and light pollutions, earthquakes and seismic risks, silica dust hazards, low level radiation exposure, and increased burdens on infrastructure, especially in rural communities," the lawsuit states.

Plaintiffs also allege that defendants: provided inadequate notice of public hearing dates, failed to have IDNR officials answer questions at public hearings, denied some citizens admittance to hearings and denied some the opportunity to speak, failed to list the use of studies, reports or data in the first public notice, provided false information to the public and failed to timely publishing the transcript of public hearings. They further argue that cumulative violations deprived plaintiffs of their rights under the Administrative Procedures Act (APA) and therefore are a violation of IDNR's rulemaking duties under the HFRA.

In her order, Crowder wrote that one of the most important aspects of APA rules for validity, "if not the most important," is the public notice and comment requirements.

"Unless a rule conforms to the public notice and comment requirement of the Administrative Procedure Act, it is not valid or effective against any person or party and may not be invoked by an administrative agency for any purpose," she cited.

She wrote that the issue is a "contentious" one.

"Plaintiffs allege they were prevented from meaningfully participating in the hearings," she wrote. "There were tens of thousands of comments and many interested parties. The court will need to look at IDNR's responses and how the comments were addressed."

A status hearing by phone is set for 11 a.m. on Dec.. 17.

Assistant attorney general Joshua D. Ratz of Springfield is representing defendants.

Madison County case number 14-CH-711.

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