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Citizens Opposing Pollution v. Exxonmobil Coal U.S.A. et al

February 2, 2012

CITIZENS OPPOSING POLLUTION,
APPELLEE,
v.
EXXONMOBIL COAL U.S.A. ET AL.,
APPELLANTS.



The opinion of the court was delivered by: Justice Theis

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 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.

¶ 2 Plaintiff, Citizens Opposing Pollution,*fn1 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 (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 BACKGROUND

¶ 4 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.*fn2 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.

¶ 5 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 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.

¶ 6 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.*fn3 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.

¶ 7 State and Federal Administrative Appeals

¶ 8 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)).

¶ 9 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.*fn4 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 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.

ΒΆ 10 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 ...


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