Citizens Opposing Pollution v. ExxonMobil Coal U.S.A., 2012 IL 111286
No. 111286
Supreme Court of Illinois
February 2, 2012
2012 IL 111286
Docket No. 111286
Filed February 2, 2012
Held
(Note: This syllabus constitutes no part of the opinion of the court but has been prepared by the Reporter of Decisions for the convenience of the reader.)
A final administrative decision approving Mining Act permit revisions could not be challenged in circuit court after expiration of the time period for administrative review; and where it was alleged that environmental conditions violated the Mining Act, a citizen suit, which could be brought as to nonpermitted activity or permit violations, was barred as to the permitted activity.
Decision Under Review Appeal from the Appellate Court for the Fifth District; heard in that court on appeal from the Circuit Court of Clinton County, the Hon. William J. Becker, Judge, presiding.
Judgment Appellate court judgment affirmed in part and reversed in part; circuit court judgment affirmed.
J. Timothy Eaton, of Chicago (Shefsky & Froelich, Ltd., of counsel), and Kurt E. Reitz, Peter S. Strassner and Paul T. Sonderegger, of Belleville (Thompson Coburn LLP, of counsel), for appellant ExxonMobil Coal USA, Inc., d/b/a Monterey Coal Company.
Lisa Madigan, Attorney General, of Springfield (Michael A. Scodro, Solicitor General, and Brian F. Barov, Assistant Attorney General, of Chicago, of counsel), for appellant Illinois Environmental Protection Agency.
Penni S. Livingston, of Fairview Heights, for appellee.
Katherine D. Hodge, Jennifer M. Martin and Alison K. Hayden, of Hodge Dwyer & Driver, of Springfield, for amicus curiae the Illinois Coal Association.
Lisa Madigan, Attorney General, of Springfield (Jane Elinor Notz, Deputy Solicitor General, and Brett E. Legner, Assistant Attorney General, of Chicago, of counsel), for amicus curiae the Illinois Department of Natural Resources.
Jessica Dexter, of Chicago, and Nathaniel Shoaff, of San Francisco, California, for amicus curiae the Illinois Chapter of the Sierra Club.
Justices 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) (
¶ 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.
¶ 5 On December 21, 1999, IEPA, which implements the water quality provisions of the Environmental Protection Act (
¶ 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. 2.3 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
¶ 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 (
¶ 9 In June 2005, Langenhorst filed a citizen complaint with the United States Department
¶ 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 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.
¶ 11 Current Lawsuit
¶ 12 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
¶ 13 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 (
¶ 14 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.
¶ 15 Monterey moved to dismiss counts I through IV of the amended complaint pursuant to section 2-619 of the Code of Civil Procedure (Code) (
¶ 16 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.”
¶ 17 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 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.
¶ 18 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.
¶ 19 Monterey and IEPA both filed petitions for leave to appeal that were allowed by this court, which consolidated the cases.
¶ 21 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 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.”
¶ 22 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” (
¶ 23 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).
¶ 24 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.
¶ 25 Section 8.05(a) of the Mining Act contains the citizen suit provision relied upon by plaintiff. It states as follows:
“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).
¶ 26 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).
¶ 27 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 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).
¶ 28 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.”
¶ 30 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
¶ 31 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
¶ 32 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 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
¶ 33 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.
¶ 34 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 surface coal mining operations will be conducted under the permit and solely reclamation activities remain to be done.”
¶ 35 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
¶ 36 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.”
¶ 37 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.
¶ 38 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.
¶ 39 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.
¶ 40 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
¶ 41 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.
¶ 42 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 Mining Act. Consequently, we find the appellate court also erred in reversing the dismissal of count VI of the amended complaint.
¶ 43 CONCLUSION
¶ 44 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.
¶ 45 Appellate court judgment affirmed in part and reversed in part;
¶ 46 circuit court judgment affirmed.