The Railroad Commission has found that the mound of excavated soil — which locals have nicknamed “Mount Thermo” — contains “acid and toxic forming materials,” substances that can turn into acidic or toxic materials when exposed to air and water. The agency’s tests of water sources near Mount Thermo found elevated levels of aluminum, which staff believe is leaching from the mound. But the company wants to leave the soil in place, arguing that it can cover it with a few feet of clean dirt to seal in the contaminants that have made the adjacent pit’s acidity spike.*

The city says it’s on board with that idea; Maxwell said he and other leaders envision building an amphitheater on the side of the mound and maybe turning the pit, which covers roughly 40 acres, into a fishing lake.

“We would very much like that [mound] to stay,” Maxwell said. “We’re in the frame of mind that we’d like it to have as steep of slopes as possible.”

But staff members in the Texas Railroad Commission’s Surface Mining and Reclamation Division, which oversees mine reclamation, have balked at Luminant’s proposal.

In a preliminary response to the proposed restoration plan, in which it laid out 21 concerns, agency staffers suggested that covering the mound with 4 feet of clean dirt violated a state regulation that says mining waste can’t be buried in areas where water drains because of the significant pollution risks it poses. Translation: Rain would simply wash away the new dirt, exposing the toxic materials again.

They also suggested the proposal violates what is one of the most basic tenets of coal mine reclamation: Longstanding state and federal rules require companies to return mined land to its former contours. In the prairieland of northeast Texas, that means gentle rolling hills.

Leaving such a large heap of excavated dirt in place is “unheard of,” said one former Railroad Commission staffer familiar with Luminant’s proposal. The staffer requested anonymity for fear that speaking to the press would lead to retaliation at their current workplace.

For more than two years, the company has gone back and forth with the reclamation division over the restoration plan. Not only has it pushed the division to approve it — mound, pit and, all — but agency documents show it has asked that it do so through an informal process that doesn’t require notifying the public.

In a written statement to Grist and The Texas Tribune, the company said that the city “asked for the mound to be left in place in order to eventually create an amphitheater” and added that the company can address the pond’s low pH “quite quickly” if its reclamation plan is approved. The deadline for residents to request a public hearing passed earlier this month.

Meanwhile, the city of Sulphur Springs is moving ahead with the development of the land. Online budget documents show it’s already sunk $157,000 into the property and plans to invest another $100,000 over the next year. Maxwell didn’t respond to follow-up questions about what the money will be spent on but has said that he expects Luminant to hand over the deed by the end of the year.

In the January interview at City Hall, he also dismissed concerns about the toxic materials in the mound, saying coal mining involved “just moving dirt.

“So what’s the risk?” he said.

Community asset or potential hazard?

Luminant came to town in the late 1970s to mine lignite, a low-grade type of coal, and purchased the rolling green pastureland in the small community of Thermo, a few miles outside Sulphur Springs. It scraped away grass, trees, and dirt and extracted the lignite for nearly four decades, shuttling it some 30 miles away to its Monticello Power Plant.

In 2011, Luminant announced it would shutter the Monticello Thermo mine, along with two others in lignite-rich northeast Texas, blaming new federal anti-pollution regulations it claimed would force it to use higher quality black coal from out of state. The company reversed course and operated for another five years, but then came a bigger threat: competition from cheap and abundant natural gas — a product of the recent shale revolution — as well as an ascendant renewable energy industry.

In 2014, its then-parent company, Dallas-based Energy Future Holdings, sought protection in one of the largest bankruptcy filings in U.S. history. Two years later, Luminant finally closed the Monticello Thermo mine, laying off 26 employees.

Now it’s doing everything it can to get out of the tanking coal business; in 2017, it announced it would close three of its six coal-fired power plants in Texas, including Monticello, and invest more in natural gas and renewables.

Today much of the former Thermo mine site looks like idyllic countryside again, blanketed in green grass and stands of fledgling pine trees. But a swath of land on the western side of the mine remains scarred, with bald, brown earth and mounds of orange-yellow sand.

The company still needs to reclaim the nearly 1,000 acres that surround the waste mound and the pit in that section. Early last year, the company sought a major alteration to its restoration strategy for hundreds of those acres: Instead of turning it back into pastureland like the rest of the property, Luminant said it wants to restore the land for use as an industrial or commercial site. While the designation dictates the level of reclamation, it doesn’t limit what the land can be used for.

Industrial-commercial, or I/C in industry speak, is a far lower reclamation standard that doesn’t require the companies to test the soil for contaminants. It also doesn’t require the state to monitor the land for years to ensure that grasses are growing properly.

For companies like Luminant, getting the state’s permission to use industrial-commercial standards is an easy way to save money on reclamation costs after a mine is played out.

Another former Railroad Commission staffer said the typical cost of reclaiming a cubic yard of soil is $1 to $2. Multiply that by 2 million cubic yards — which is the state’s estimated size of the waste mound at Luminant’s old mine — and the company could save as much as $4 million by leaving the mound in place.

The former staffers said that allowing Luminant to use industrial-commercial standards also would allow the company to wrap up reclamation work much faster — and get back almost $18 million in bond money held by the Railroad Commission. (Mining companies typically have to put up large bonds before they start operations as a guarantee that they will reclaim land after shuttering their mines.)

Ryan King, a biologist at Baylor University who has served as an expert witness in half a dozen federal lawsuits against coal companies, said staff concerns over the company’s reclamation plan are well founded.

“The idea of an amphitheater and having a lot of people right where you can potentially have a lot of airborne dust that is almost certainly going to contain toxic materials seems like a very risky situation,” he said. “That community is either uninformed or being misled about the potential hazards of doing such a thing.”

But Maxwell, the city manager, doesn’t see the problem. He said he trusts the Railroad Commission and Luminant will work it out, and that the company will do the right thing. “We don’t see a lot of risk there,” he said.

The city is so trusting, in fact, that it didn’t conduct an environmental assessment of the land before inking an agreement with Luminant last fall that says the city will take ownership of the entire property, including the mound, the pit, roads, and other structures Luminant erected during the mining process. The City Council approved it unanimously.

The agreement says Luminant will have access to the land to continue reclamation work — for however long it takes. It also says Luminant is the only party that can terminate the agreement.

In text messages and emails obtained by Grist and the Tribune, Luminant appeared to coach Maxwell last year on what to tell the Railroad Commission as the company and the city advocated for the restoration plan that would leave the mound — which the company calls the “H-Area hill” — and pit in place.

“Marc, I believe the key message the RRC needs to hear tomorrow is your needs for the facilities, haulroads, [Farm to Market Road] 1870 overpass, the H-Area final pit lake and the H-Area Hill,” Luminant’s director of mine closure, Del McCabe, wrote in a May 2018 text to Maxwell. “I believe the H-Area Hill will bring up the most questions, but I would stress it will be used as the foundation for a future amphitheater and entertainment complex. Good luck tomorrow.”