Justia.com Opinion Summary: Plaintiff, a citizens' organization, filed suit alleging violations of the Surface Coal Mining Land Conservation and Reclamation Act, 225 ILCS 720/8.05(a), and the Water Use Act, 525 ILCS 45/1 resulting from a coal mine reclamation. The circuit court dismissed with prejudice. The appellate court reversed the dismissal as to all five counts directed against the mining company and modified the order dismissing the count against Illinois Environmental Protection Agency to be a dismissal without prejudice. The Illinois Supreme Court reversed in part. The trial court properly dismissed counts I through V because those counts constitute a challenge to the provisions of the revised permits authorized by Illinois Department of Natural Resources and could not be brought under the Mining Act. Similarly, there is no statutory basis to conclude that the Water Use Act allows a private right of action to challenge conduct that is specifically mandated by the terms of a permit authorized by IDNR.
Receive FREE Daily Opinion Summaries by Email Download as PDF
Loading PDF...
<![CDATA[
2012 IL 111286
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket Nos. 111286, 111304 cons.)
CITIZENS OPPOSING POLLUTION, Appellee, v. EXXONMOBIL
COAL U.S.A. et al., Appellants.
Opinion filed February 2, 2012.
JUSTICE THEIS delivered the judgment of the court, with
opinion.
Chief Justice Kilbride and Justices Freeman, Thomas, Garman,
Karmeier, and Burke concurred in the judgment and opinion.
OPINION
¶1
¶2
In this appeal, we are asked to determine whether a citizen suit
can be brought under section 8.05(a) of the Surface Coal Mining
Land Conservation and Reclamation Act (Mining Act) (225 ILCS
720/8.05(a) (West 2008)) to challenge site conditions at a coal mine
reclaimed in accordance with permits previously approved by the
Illinois Department of Natural Resources (IDNR). We also must
determine whether the Water Use Act of 1983 (Water Use Act) (525
ILCS 45/1 et seq. (West 2008)) allows a private right of action to
challenge activity authorized by a mining permit.
Plaintiff, Citizens Opposing Pollution,1 brought a six-count
amended complaint in the circuit court of Clinton County against
defendants ExxonMobil Coal U.S.A., d/b/a Monterey Coal Company
1
Plaintiff is a not-for-profit citizen group that was founded by Don
Langenhorst in May 2008.
(Monterey), and the Illinois Environmental Protection Agency
(IEPA), alleging violations of the Mining Act and the Water Use Act
resulting from a coal mine reclamation at Monterey’s Mine No. 2.
The circuit court dismissed plaintiff’s amended complaint with
prejudice. The appellate court reversed the dismissal as to all five
counts directed against Monterey and modified the circuit court’s
order dismissing the sole count against IEPA to be a dismissal
without prejudice. 404 Ill. App. 3d 543. For the reasons that follow,
we affirm in part and reverse in part the judgment of the appellate
court and affirm the trial court’s order.
¶3
¶4
¶5
BACKGROUND
In 1977, Monterey began surface and underground coal mining
operations at its Mine No. 2 in Clinton County. The Mining Act,
which is administered by IDNR, requires that no person shall conduct
mining operations without first obtaining a permit from IDNR. 225
ILCS 720/2.01 (West 2008). Each permit application, and application
for revision of a permit, must also contain a reclamation plan or
revised reclamation plan that meets the requirements set forth by
IDNR. 225 ILCS 720/2.03 (West 2008). Monterey operated at the
site, relevant to this appeal, two separately permitted coal refuse
disposal areas (RDAs). In 1984, the Illinois Department of Mines and
Minerals approved Permit No. 57, which authorized the creation of
RDA-1.2 In 1986, the Department approved Permit No. 183, which
authorized the creation of RDA-2. The two conjoined RDAs
encompass a surface area of approximately 350 acres and contain
rock, gravel, sand and other materials that are separated from the coal
during coal processing. In 1996, active, ongoing mining operations
ended at Mine No. 2. Monterey then began working to permanently
close the mine and conduct reclamation work at the site, which
included sealing the mine shafts and removing coal mining facilities
and equipment.
On December 21, 1999, IEPA, which implements the water
quality provisions of the Environmental Protection Act (415 ILCS 5/1
et seq. (West 2008)), issued a violation notice to Monterey. The
notice alleged that Monterey’s coal mining waste disposal areas
2
The authority of the Department of Mines and Minerals was
transferred to IDNR, effective July 1, 1995. See 20 ILCS 801/10-5 (West
2008).
-2-
¶6
violated groundwater quality standards for total iron, manganese,
sulfate, chloride, and total dissolved soils. Without admitting to the
alleged violation, Monterey worked with IEPA, and a corrective
action plan which included a groundwater management zone to treat
impacted groundwater under and around the two refuse disposal areas
was developed and approved by IEPA on June 24, 2002. The plan
required, inter alia, the installation of an underground bentonite
barrier wall and the construction of a treatment system which routes
impacted groundwater from extraction wells through a treatment area
before discharging it off site. Monterey was also required to monitor
groundwater quality and provide annual reporting to IEPA.
On March 3, 2004, after a public hearing and comment period,
IDNR approved revisions to Permit No. 57 and Permit No. 183,
which incorporated the corrective action plan with the groundwater
management zone, that allowed Monterey to implement and complete
reclamation work at Mine No. 2.3 The terms of the permit revisions
provided, in pertinent part: (1) the two RDAs would remain onsite
and the interior which contained exposed coal refuse on the surface
would be reclaimed with a soil cover and vegetation; (2) a detailed
description of the postreclamation land use designations, which
specified that the RDAs and the land immediately adjacent to them
would constitute “pastureland” as defined in the administrative
regulations (see 62 Ill. Adm. Code 1701 app. A (2012)) after
completion of the required reclamation work; (3) the final contour of
the land would approximate the premining site topography with the
exception, in pertinent part, of the two RDAs; and (4) the operation
of the groundwater management zone was designed to prevent or
mitigate any material damage to the hydrologic balance outside the
proposed permit area and minimize the disturbance within the
boundaries. Monterey represents that the reclamation project was
substantially completed in December 2006, and that it expended more
than $28 million to complete the RDA portion of the project alone,
which included the construction of the groundwater management
zone.
3
The revised Permit No. 57 and Permit No. 183 expired on January
8, 2005, and October 16, 2006, respectively.
-3-
¶7
¶8
¶9
State and Federal Administrative Appeals
On March 29, 2004, Langenhorst filed a request for
administrative appeal with IDNR, challenging the department’s
approval of the revisions to the permits. Langenhorst was later joined
in his appeal by other Clinton County residents. They raised, among
other issues, whether the proposed remediation plan for the refuse
disposal areas was adequate in addressing contamination of the
underlying Pearl Sand aquifer. On May 25, 2005, a final
administrative decision, which adopted the order of the hearing
officer granting summary judgment in favor of Monterey and IDNR,
was entered. Concerning the groundwater issue, the hearing officer
had found, in pertinent part:
“Petitioners and their expert witness Robert Johnson have
admitted the revisions as approved prevent material damage
to the hydrologic balance outside the mine property and
minimize the disturbance of the hydrologic balance within the
boundaries of the mine. That satisfies the regulatory
requirements and requires summary judgment in favor of the
Department and Monterey.”
The petitioners did not seek review of this final administrative
decision in the circuit court, as allowed under section 8.10 of the
Mining Act (225 ILCS 720/8.10 (West 2008)).
In June 2005, Langenhorst filed a citizen complaint with the
United States Department of the Interior, Office of Surface Mining
Reclamation and Enforcement (OSM), pursuant to section 1267(h) of
the Surface Mining Control and Reclamation Act of 1977 (30 U.S.C.
§ 1267(h) (2006)), requesting that OSM review the adequacy of the
reclamation plan at Mine No. 2.4 OSM accepted as his citizen
complaint, among other issues, whether there was a failure to protect
the groundwater at the mine site. OSM’s Alton Field Division (Field
Division) ultimately determined, in pertinent part, that since
Monterey was appropriately implementing the state-mandated
remedial plan designed to bring about abatement of the existing water
4
IDNR has direct responsibility for the review of coal mining and
reclamation plans in Illinois. See 225 ILCS 720/2.01, 2.02, 2.03 (West
2008). OSM in an oversight role has the responsibility of enforcing the
same standards on a mine-by-mine basis if the state agency fails to do so.
See 30 U.S.C. § 1271(a)(1) (2006).
-4-
¶ 10
¶ 11
¶ 12
violation, IDNR was taking appropriate action to continue enforcing
the corrective action plan and had good cause for not taking
additional enforcement action. On April 10, 2006, OSM’s Regional
Director, Mid-Continent Regional Coordinating Center, affirmed the
decision of the Field Division. Langenhorst appealed that decision to
the Interior Board of Land Appeals, an administrative appeals board
in the United States Department of the Interior. On February 20,
2008, the Interior Board of Land Appeals affirmed the decisions of
the Regional Director and the Field Division.
On January 4, 2007, Langenhorst filed a second state
administrative appeal with IDNR. In December 2006, IDNR had
approved an incidental boundary revision to Permit No. 57, which
allowed for an additional parcel of land for an underground
wastewater discharge pipeline that was necessary to implement the
groundwater management zone. Langenhorst challenged whether this
underground pipeline was a continuation of mining operations that
would require Monterey to comply with additional mining statutory
and regulatory requirements. On July 18, 2007, the hearing officer
entered summary judgment in favor of Monterey and IDNR. The
order also provided, in pertinent part, that “Langenhorst’s [s]ummary
[j]udgment [m]otion is replete with inaccurate statements and refuted
testimony. *** The fact that Mr. Langenhorst is attempting to
relitigate issues already decided and encompassed by a previous
administrative appeal makes me inclined to consider sanctions against
Mr. Langenhorst.” As with the first state administrative appeal,
Langenhorst did not seek review in the circuit court.
Current Lawsuit
On August 8, 2008, plaintiff filed an 18-count complaint against
Monterey, IEPA, and IDNR under the citizen suit provision contained
in section 8.05(a) of the Mining Act. The complaint sought, in
pertinent part, to declare that the reclamation plan contained in the
revised permits did not comply with the performance standards of the
Mining Act by allowing Monterey to permanently retain the two
impoundments of coal mine waste at the site. Plaintiff sought to
require Monterey to submit a permit renewal application that would
comply with all of the requirements of the Mining Act and IDNR’s
regulations. In response to defendants’ motions to dismiss, plaintiff
filed motions for leave to file an amended complaint and for the
voluntary dismissal of IDNR. The trial court granted the motions.
-5-
¶ 13
¶ 14
¶ 15
Plaintiff filed the instant six-count amended complaint on
December 22, 2008. In count I, plaintiff alleged, in pertinent part, that
Monterey violated section 3.03 of the Mining Act by failing to restore
the land where the two RDAs were situated to a condition capable of
supporting the same use or a higher or better use than before mining.
In count II, plaintiff alleged, in pertinent part, that Monterey violated
section 3.08(b) of the Mining Act by permanently retaining
impoundments of coal mine waste at the site. In count III, plaintiff
alleged, in pertinent part, that Monterey had permanently graded
Mine No. 2 in a manner that failed to restore the affected land to its
approximate original contour, as required by section 1.03(a)(2) of the
Mining Act. In count IV, plaintiff alleged, in pertinent part, that
Monterey disturbed the hydrologic balance and failed to protect the
quality and quantity of the groundwater by permanently retaining the
two impoundments of coal waste in violation of section 3.10(a) of the
Mining Act. In count V, plaintiff alleged, in pertinent part, that IEPA
violated section 4.09 of the Mining Act by developing and approving
the groundwater management zone because it negatively impacted the
quality and quantity of the groundwater at the site. Finally, in count
VI, plaintiff alleged, in pertinent part, that Monterey was not
complying with the Water Use Act by failing to follow the rule of
“reasonable use,” as provided in section 6 (525 ILCS 45/6 (West
2008)), by pumping excessive quantities of groundwater from the
Pearl Sand aquifer. Specifically, plaintiff alleged that Monterey in
order to comply with the corrective action plan approved by IEPA
must pump 4 million gallons of water from the aquifer each week,
which exceeds Monterey’s fair share for the size of its facility.
In all five counts against Monterey, plaintiff sought injunctive
relief to require Monterey to remove the permanent impoundments
known as RDA-1 and RDA-2 and to dispose of the waste contained
therein off site. In count V, plaintiff sought the immediate revocation
of the groundwater management zone and a ruling that any future
groundwater management zone developed by IEPA for the site must
comply with the Mining Act. In count VI, plaintiff sought to require
Monterey to develop and implement a written plan that limits the
extraction of groundwater at the site to no more than 100,000 gallons
per day. In all six counts, plaintiff sought costs, fees, and any other
relief the court deemed appropriate.
Monterey moved to dismiss counts I through IV of the amended
complaint pursuant to section 2-619 of the Code of Civil Procedure
-6-
¶ 16
¶ 17
(Code) (735 ILCS 5/2-619 (West 2008)) and count VI pursuant to
section 2-615 of the Code (735 ILCS 5/2-615 (West 2008)). IEPA
moved to dismiss count V under sections 2-615 and 2-619 of the
Code.
On April 28, 2009, the trial court dismissed plaintiff’s amended
complaint on all counts with prejudice and entered an order which
provided, in pertinent part:
“All parties agree that in order to operate the mine
[Monterey] had to and did obtain a permit from [IDNR]. All
parties agree that the permit does provide for a reclamation
plan. Under the Act the permit and the reclamation plan are
not approved unless IDNR finds that all statutory
requirements are met. Plaintiff concedes that it has no
evidence to show that either [Monterey] or IEPA is violating
the terms of the permit or the terms of the reclamation plan.
*** [Section 8.10 of the Act] provides that final
administrative decisions of [IDNR] shall be subject to judicial
review pursuant to the Administrative Review Law ***.
Plaintiff concedes that the time to challenge the permit which
included the reclamation plan has expired, but plaintiff argues
that 8.05(a) authorizes a suit for any violation of the Act by
any aggrieved person. The court disagrees with plaintiff’s
assertion that 8.05(a) allows a suit to challenge what IDNR
has previously approved through approval of the permit and
reclamation plan. *** The court is persuaded by IEPA’s
argument that it is not a violator of the Act since at best it
simply approved a groundwater management zone that was
incorporated into the terms of a permit reclamation plan. The
court’s understanding of [the Act] is that IDNR issues
permits, and that permits and permit revisions include
reclamation plans. To the extent that the groundwater
management zone approved by IEPA is at all relevant, it is
only relevant within the context of IDNR’s approval of the
permit revision and reclamation plan. *** [Monterey’s] ***
motion to dismiss count VI is granted. The Water Use Act
provides no private right of action.”
The appellate court reversed the trial court and held that counts I
through IV and count VI against Monterey were allowed under
section 8.05(a) because those counts alleged various ongoing
violations of the Mining Act. The appellate court concluded that
-7-
¶ 18
¶ 19
¶ 20
¶ 21
plaintiff was not collaterally attacking permitted activity in those
counts because there was no dispute that the permits had expired. As
for count V, the appellate court concluded that the allegation that
IEPA violated the Mining Act by authorizing the groundwater
management zone could also proceed under section 8.05(a). The
appellate court held, however, that to the extent that portions of count
V constitute a collateral attack on the previously issued permits, the
trial court was correct in dismissing it. Concerning count VI, without
conducting any significant analysis, the appellate court concluded that
the Water Use Act provides a private right of action because “section
8.05 of the [Mining Act] specifically allows such enforcement
actions.” 404 Ill. App. 3d at 556.
The appellate court also rejected defendants’ argument that
plaintiff’s action was barred by res judicata and collateral estoppel
due to the state and federal administrative appeals. The appellate
court reasoned that “Exxon” was not a party to the previous litigation
and plaintiff’s claims involved allegations of ongoing environmental
concerns. Additionally, the appellate court rejected defendants’
argument that IDNR was a necessary party to this case and concluded
that upon remand IDNR could be added by either Monterey or IEPA,
or the department could seek to intervene. Consequently, the
appellate court reversed the dismissal as to the five counts against
Monterey and modified the dismissal of the sole count against IEPA
to be without prejudice. 404 Ill. App. 3d at 558.
Monterey and IEPA both filed petitions for leave to appeal that
were allowed by this court, which consolidated the cases. Ill. S. Ct. R.
315 (eff. Feb. 26, 2010). We also allowed IDNR and the Illinois Coal
Association to file amicus curiae briefs on behalf of Monterey and
IEPA. In addition, we allowed the Illinois Chapter of the Sierra Club
to file a brief amicus curiae on behalf of plaintiff.
ANALYSIS
Monterey and IEPA contend that the appellate court erred in
reversing the dismissal of counts I through V of the amended
complaint because the citizen suit provision contained in section
8.05(a) of the Mining Act does not allow a party to challenge the
terms, conditions, and activities authorized in, and required by, a
mining permit. They contend that under section 8.10 of the Mining
Act, the Administrative Review Law is the exclusive route for a
citizen to obtain timely judicial review of a final permit decision by
-8-
¶ 22
¶ 23
¶ 24
¶ 25
IDNR. Plaintiff counters that section 8.05(a) allows a party to file a
citizen suit at any time to enforce site conditions that do not comply
with the requirements of the Mining Act, regardless of whether those
conditions conform to the terms of the mining permit. Plaintiff argues
that the substantive provisions of the Mining Act “cannot be
overridden by the implementation of illegally issued permits that
leave the site out of compliance with the authorizing legislation.”
Section 2-619(a) of the Code of Civil Procedure allows dismissal
where, in pertinent part, “the action was not commenced within the
time limited by law” (735 ILCS 5/2-619(a)(5) (West 2008)) and
where “the claim asserted against defendant is barred by other
affirmative matter avoiding the legal effect of or defeating the claim.”
735 ILCS 5/2-619(a)(9) (West 2008). A motion to dismiss under
section 2-615 of the Code (735 ILCS 5/2-615 (West 2008))
challenges only the legal sufficiency of the complaint. Wakulich v.
Mraz, 203 Ill. 2d 223, 228 (2003). Under either section of the Code,
our review proceeds de novo. Feltmeier v. Feltmeier, 207 Ill. 2d 263,
266 (2003).
The issue before us requires us to consider the interplay between
section 8.05(a) and section 8.10 of the Mining Act, which constitutes
a matter of statutory construction that we also review de novo.
Michigan Avenue National Bank v. County of Cook, 191 Ill. 2d 493,
503 (2000). The goal of statutory construction is to ascertain and give
effect to the legislature’s intent. In re Donald A.G., 221 Ill. 2d 234,
246 (2006). The best indication of this intent remains the language of
the statute itself, which must be given its plain and ordinary meaning.
Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469, 479 (1994). In
interpreting a statute, this court presumes that the legislature did not
intend absurdity, inconvenience, or injustice. Hernon v. E.W.
Corrigan Construction Co., 149 Ill. 2d 190, 195 (1992).
Under the doctrine of in pari materia, two legislative acts that
address the same subject are considered with reference to one another,
so that they may be given harmonious effect. Land v. Board of
Education of the City of Chicago, 202 Ill. 2d 414, 422 (2002). The
doctrine is consistent with our acknowledgment that one of the
fundamental principles of statutory construction is to view all of the
provisions of a statute as a whole. Id.
Section 8.05(a) of the Mining Act contains the citizen suit
provision relied upon by plaintiff. It states as follows:
-9-
¶ 26
¶ 27
“Civil Actions. (a) Any person having an interest which is or
may be adversely affected may commence a civil action on
his own behalf to compel compliance with this Act against
any governmental instrumentality or agency which is alleged
to be in violation of the provisions of this Act or of any rule,
order or permit issued under this Act, or against any other
person who is alleged to be in violation of this Act or of any
rule, order or permit issued under this Act. No action may be
commenced under this subsection (1) prior to 60 days after
the plaintiff has given notice in writing of the alleged
violation to the Department and to any alleged violator, or (2)
if the State has commenced and is diligently prosecuting a
civil action to require compliance with the provisions of this
Act, or any rule, order or permit issued under this Act.” 225
ILCS 720/8.05(a) (West 2008).
Section 8.10 of the Mining Act, relied upon by defendants,
provides for review of all final administrative decisions of IDNR
under the Administrative Review Law. It states as follows:
“Review under Administrative Review Law. All final
administrative decisions of the Department under this Act
shall be subject to judicial review pursuant to the
Administrative Review Law, as amended, and the rules
adopted under it, except that the remedies created by this Act
are not excluded or impaired by any provision of the
Administrative Review Law.” 225 ILCS 720/8.10 (West
2008).
In construing the two statutory provisions at issue, we emphasize
that the first clause of section 8.10 specifically provides that “[a]ll
final administrative decisions of the department shall be subject to
judicial review pursuant to the Administrative Review Law.”
(Emphasis added.) It is undisputed that a final administrative decision
by IDNR on a mining permit constitutes a final administrative
decision of the department that is subject to judicial review under
section 8.10. In contrast, section 8.05(a) provides, in pertinent part,
that a citizen suit may be brought to “compel compliance with this
Act” or to enforce compliance with a “permit issued under this Act.”
Consequently, we agree with the trial court that section 8.05(a), read
in pari materia with section 8.10, requires that the administrative
review process is the exclusive route for circuit court review of the
terms of a mining permit issued by IDNR. However, an action to
-10-
¶ 28
¶ 29
compel compliance with the Mining Act for nonpermitted activity, or
to enforce compliance with the terms of a permit, may be brought by
way of an original action in the circuit court under section 8.05(a).
Plaintiff does not challenge in its amended complaint Monterey’s
compliance with any provision contained in the revised permits
issued by IDNR. Instead, plaintiff attacks the terms of those permits
under which the reclamation work was completed as not complying
with the Mining Act. As previously recognized, a final administrative
decision by IDNR authorizing a mining permit is a final
administrative decision of the department that is subject to judicial
review pursuant to the Administrative Review Law. Section 3-103 of
the Administrative Review Law provides that “[e]very action to
review a final administrative decision shall be commenced by the
filing of a complaint and the issuance of summons within 35 days
from the date that a copy of the decision sought to be reviewed was
served upon the party affected by the decision.” 735 ILCS 5/3-103
(West 2008). Section 3-102 of the Administrative Review Law
provides that “[u]nless review is sought of an administrative decision
within the time and in the manner herein provided, the parties to the
proceeding before the administrative agency shall be barred from
obtaining judicial review of such administrative decision.” 735 ILCS
5/3-102 (West 2008). Langenhorst did not seek timely judicial review
of the provisions of the revised permits pursuant to the
Administrative Review Law after they were approved in 2004, and
the citizen group that he founded in 2008 cannot do so now under
section 8.05(a).
Plaintiff asserts that section 8.10 does not preclude it from
bringing its amended complaint under section 8.05(a) because the
“except that” language contained in the second clause of section 8.10
authorizes a citizen suit to challenge permitted activity whenever site
conditions do not comply with the Mining Act. We disagree and
construe the second clause of section 8.10 as allowing a citizen suit
under section 8.05(a), such as to enforce the provisions of a permit,
or to challenge nonpermitted activity, without being impaired by any
of the requirements of the Administrative Review Law. This
interpretation is consistent with our obligation not to construe a
statute in a way that makes one of its provisions redundant and
superfluous. Board of Trustees of Community College District No.
508 v. Human Rights Comm’n, 88 Ill. 2d 22, 28 (1981). Plaintiff’s
construction of section 8.10 would eviscerate and render meaningless
-11-
¶ 30
¶ 31
¶ 32
the “shall” provision contained in the first clause of the statute by
making adherence to the Administrative Review Law entirely
optional and nonbinding in the case of a final permit determination by
IDNR. This interpretation would be inconsistent with the
Administrative Review Law, which specifically requires prompt
judicial review of such final administrative decisions.
Our construction of sections 8.05(a) and 8.10 is also supported by
the realities of the mining permit process and judicial review of such
regulatory decisions. IDNR’s authority in the permit process, which
the legislature specifically delegated to the department (see 225 ILCS
720/2.01, 2.02, 2.03 (West 2008)), would be undermined if we were
to interpret section 8.05(a) as allowing a party to file an original cause
of action in the circuit court challenging the terms of a mining permit.
The Mining Act stipulates that no permit or revised permit shall be
issued unless the application affirmatively demonstrates, and the
department finds, inter alia, that: (1) the application is accurate and
complete and all requirements of the Mining Act have been complied
with; (2) the applicant has demonstrated the reclamation can be
accomplished and complies with the performance standards set forth
in the statute; (3) the proposed mining operation has been designed
to prevent material damage to the hydrologic balance outside the
permit area; and (4) the area proposed to be mined is not included
within an area designated unsuitable for surface coal mining under the
Mining Act. 225 ILCS 720/2.08(b) (West 2008).
Plaintiff’s suggested construction of the statute would require the
circuit court to determine such highly regulated mining operation and
reclamation issues without an administrative record to review. See 62
Ill. Adm. Code 1847.3 (2012) (permit and related administrative
hearings). A contrary construction of the statute would also impact
legitimate reliance by a permittee, and create significant uncertainty
by allowing the terms of a permit to be reopened and reconsidered at
any time, even years after a reclamation project has been completed
in accordance with a permit. We decline to conclude that the
legislature intended such an absurd result in enacting section 8.05(a),
which would not only call into question the finality of mining permit
decisions throughout Illinois, but would undermine the role of IDNR
in the permit process.
We note, as demonstrated by the state and federal administrative
appeals brought by Langenhorst, that a party who may be adversely
affected by a mining permit decision is afforded opportunities to raise
-12-
¶ 33
¶ 34
objections at the state level before IDNR and at the federal level
before OSM. As recognized by IDNR in its amicus brief, any person
having an interest which is or may be adversely affected by a permit
decision of the department may file written objections to a permit
application and request an informal conference on the application
with IDNR. 225 ILCS 720/2.04(d) (West 2008). If no informal
conference is requested, or if the issues in question are not resolved
by the informal conference, a public hearing may be called at which
time the interested person has an opportunity to submit oral or written
testimony and his or her views or arguments. 225 ILCS 720/2.04(d),
(e) (West 2008); 62 Ill. Adm. Code 1773.14(d) (2012). An interested
person may also request an adjudicatory hearing to challenge IDNR’s
decision on a mining permit. 225 ILCS 720/2.11(c) (West 2008).
After the interested person is notified of the hearing officer’s
recommended decision, he or she may submit exceptions. 62 Ill.
Adm. Code 1847.3(i) (2012). Thereafter, the person may seek judicial
review of the final permit decision pursuant to the Administrative
Review Law. 225 ILCS 720/8.10 (West 2008); 62 Ill. Adm. Code
1847.3(l) (2012). Consequently, our construction of the statute does
not preclude a party from raising objections to IDNR’s permit
decisions and seeking judicial review thereafter. We simply recognize
that any objection must be raised in a timely manner through the
administrative review process and may not be brought through an
original action in the circuit court under section 8.05(a).
We further note that IDNR is required to conduct periodic review
of outstanding permits and may require reasonable revision or
modification of permit provisions during the term of such permit if
necessary to insure that a coal mine complies with all of the
requirements of the Mining Act. 225 ILCS 720/2.10 (West 2008).
Additionally, under the administrative code, if IDNR receives
information indicating that it improvidently issued a mining or
reclamation permit, the department is required to review the
circumstances under which the permit was issued, and undertake
remedial measures, including suspension or rescission of the permit
using the criteria set forth in the regulations See 62 Ill. Adm. Code
1773.20, 1773.21 (2012).
Plaintiff’s argument that section 8.10 does not apply because the
revised permits expired more than two years before it filed its original
complaint does not change our determination. Pursuant to the
administrative code, “[a] permittee need not renew the permit if no
-13-
¶ 35
¶ 36
surface coal mining operations will be conducted under the permit
and solely reclamation activities remain to be done.” 62 Ill. Adm.
Code 1773.11(a) (2012). The regulations further provide that
“[o]bligations established under a permit continue until completion
of surface coal mining and reclamation operations, regardless of
whether the authorization to conduct surface coal mining operations
has expired.” Id. Consequently, there was no requirement for
Monterey to renew the permits because, as is undisputed, only
reclamation activities remained to be completed after the permits
expired in January 2005 and October 2006. Following the expiration
of the permits, Monterey’s obligation to complete the reclamation
work in accordance with the permits remained unchanged and did not
provide plaintiff with a new basis to challenge the terms of the
revised permits.
Likewise, plaintiff’s reliance on Old Ben Coal Co. v. Department
of Mines & Minerals, 207 Ill. App. 3d 1088 (1991), is misplaced. In
that case, the Illinois Department of Mines and Minerals brought an
enforcement action against a coal mine company that was operating
under an interim permit that was issued prior to the state’s more
stringent permanent mining regulations being implemented. Id. at
1089-90. The coal company argued that because it was operating
under an interim permit it was not bound by the permanent mining
regulations. Id. at 1091. The appellate court rejected this argument
and concluded that the statutory language that all operators “as a
minimum” must comply with the Mining Act’s performance
standards did not exempt interim permittees from the permanent
regulations. Id. at 1091-92. The issue before this court is not related
to the applicability of a new set of regulations after the approval of
the revised permits. Instead, this case involves the implementation of
standards under the Mining Act which have not changed since the
revised permits were approved by IDNR in 2004.
Plaintiff appears to argue, in the alternative, that its amended
complaint should be allowed based upon a right to a healthful
environment contained in article XI of the Illinois Constitution of
1970, which provides that “the duty of each person is to provide and
maintain a healthful environment for the benefit of this and future
generations.” Ill. Const. 1970, art. XI, § 1. Article XI, section 2, gives
private citizens the right to “enforce this right against any party,
governmental or private.” Ill. Const. 1970, art. XI, § 2. As this court
has previously explained, however, “[s]ection 2 of article XI does not
-14-
¶ 37
¶ 38
¶ 39
¶ 40
create any new causes of action but, rather, does away with the
‘special injury’ requirement typically employed in environmental
nuisance cases.” City of Elgin v. County of Cook, 169 Ill. 2d 53, 85
(1995); see also Glisson v. City of Marion, 188 Ill. 2d 211, 228
(1999). Therefore, although plaintiff need not allege a special injury
to bring its environmental claim, there must nevertheless still exist a
cognizable cause of action. City of Elgin, 169 Ill. 2d at 85-86.
For the reasons stated, we find the trial court properly dismissed
counts I through V of plaintiff’s amended complaint with prejudice
because those counts constitute a challenge to the provisions of the
revised permits authorized by IDNR and could not be brought under
section 8.05(a) of the Mining Act.
As noted earlier in this opinion, the appellate court affirmed the
circuit court’s dismissal of count V, holding that to the extent
portions of the count constitute a collateral attack on the previously
issued permits, the circuit court was correct in dismissing it. We agree
with the appellate court’s affirmance of the circuit court’s dismissal
and thus affirm that part of the appellate court’s judgment. However,
the appellate court further modified the circuit court’s dismissal to be
without prejudice and remanded with directions that plaintiff be
allowed to file an amended count V. Because the circuit court
properly dismissed count V with prejudice, that part of the appellate
court’s judgment which modified and remanded the circuit court’s
order dismissing count V is reversed.
Based upon our determination that counts I through V could not
be brought under section 8.05(a) of the Mining Act and thus were
properly dismissed, there is no need for us to address Monterey and
IEPA’s alternative argument that plaintiff’s claims are barred under
res judicata and collateral estoppel based on the state and federal
administrative appeals. There is also no need for us to consider
Monterey’s contention that the appellate court erred in concluding
that IDNR was not a necessary party to this case, or IEPA’s
contention that it was not a violator of the Mining Act by its approval
of the groundwater management zone.
Finally, we consider whether the appellate court erred in reversing
the dismissal of count VI of the amended complaint against
Monterey. This requires us to consider whether the Water Use Act
authorizes a private right of action to challenge activity specifically
required by a permit approved by IDNR under the Mining Act.
-15-
¶ 41
¶ 42
The Water Use Act declares it to be in the public interest to better
manage and conserve water, to establish a mechanism for restricting
withdrawals of groundwater in emergencies, and to provide public
notice of planned substantial water withdrawals from new points
before water is withdrawn. 525 ILCS 45/2 (West 2008). The Water
Use Act also follows the doctrine of reasonable use for groundwater
withdrawals. 525 ILCS 45/6 (West 2008). Reasonable use means “the
use of water to meet natural wants and a fair share for artificial wants.
It does not include water used wastefully or maliciously.” 525 ILCS
45/4 (West 2008). The statutory framework includes a limited
complaint investigation and review process managed by the
Department of Agriculture and local soil and water conservation
districts, an administrative hearing and appeal process, and a penalties
provision. 525 ILCS 45/5.1, 7 (West 2008).
Plaintiff alleged in count VI, in pertinent part, that Monterey
failed to follow the rule of reasonable use as provided in section 6 of
the Water Use Act because in order for Monterey to comply with the
corrective action plan incorporated in the revised permit it must pump
4 million gallons of water from the aquifer each week. Plaintiff
sought injunctive relief to require Monterey to develop and
implement a written plan that would require the extraction of less
than 100,000 gallons of groundwater per day. As in the other counts,
plaintiff also sought to require Monterey to remove the two RDAs
from the site. Plaintiff therefore seeks the same injunctive relief in
count VI that we have already determined in the other five counts
constitutes an attack on the terms of the permits that is not allowed
under section 8.05(a) of the Mining Act. Similar to our determination
under section 8.05(a), we find no statutory basis to conclude that the
Water Use Act allows a private right of action to challenge conduct
that is specifically mandated by the terms of a permit authorized by
IDNR. See Metzger v. DaRosa, 209 Ill. 2d 30, 36 (2004) (implication
of a private right of action from a statute is appropriate if the plaintiff
is a member of the class for whose benefit the statute was enacted; the
plaintiff's injury is one the statute was designed to prevent; it is
consistent with the underlying purpose of the statute; and it is
necessary in order to provide an adequate remedy for violations of the
statute). Plaintiff’s reliance on Bridgman v. Sanitary District of
Decatur, 164 Ill. App. 3d 287 (1987), is misplaced and does not
inform our analysis as that case did not concern a cause of action
under the Water Use Act to challenge permitted activity under the
-16-
Mining Act. Consequently, we find the appellate court also erred in
reversing the dismissal of count VI of the amended complaint.
¶ 43
¶ 44
¶ 45
¶ 46
CONCLUSION
For the foregoing reasons, the judgment of the appellate court is
affirmed in part and reversed in part and the judgment of the circuit
court is affirmed.
Appellate court judgment affirmed in part and reversed in part;
circuit court judgment affirmed.
-17-
]]>
