3 February 2012
In a unanimous opinion, the Illinois Supreme Court has ruled that the citizen suit provision of the Illinois Surface Coal Mining Land Conservation and Reclamation Act, 225 ILCS 705, et seq. (the “Mining Act”), does not allow for judicial review of the terms of mining permits issued by the Illinois Department of Natural Resources (IDNR)—even if it is alleged that permit terms violate the Mining Act itself.
The case, Citizens Opposing Pollution v. ExxonMobil Coal U.S.A., involves the Monterey Mine No. 2 near Albers, Illinois. Monterey Coal Company, a division of ExxonMobil Coal U.S.A., conducted surface and subsurface coal mining activities on the site between 1977 and 1996. In 1999, the Illinois Environmental Protection Agency (IEPA) issued a notice of violation to Monterey, alleging that two onsite coal refuse disposal areas (RDAs) violated groundwater quality standards. In response, Monterey developed a corrective action plan including a groundwater management zone to treat impacted groundwater under and around the RDAs.
Under the Mining Act, all coal mining operations must be permitted, and each permit application (or permit revision application) must contain a reclamation plan that typically proposes measures for restoring the land to its natural condition once mining activities have completed. In March 2004, after a public hearing and comment period, IDNR approved revised mining permits for the Monterey mine that required onsite reclamation work, including the capping of the two RDAs with soil and vegetation, implementation of the corrective action plan approved by IEPA, and a stipulation that the site and adjacent land would be returned to pastureland.
Shortly after IDNR issued the revised permits, the plaintiff filed a request for administrative appeal with IDNR, challenging the approval of the permit revisions. IDNR granted summary judgment in favor of Monterey and IDNR, and the plaintiff did not seek judicial review of this final administrative decision.
Monterey’s mining permits expired in 2005 and 2006, and the company substantially completed reclamation work on the site by December 2006. In 2008, following a series of other unsuccessful administrative challenges, the plaintiff filed a six-count action in Illinois circuit court that, in effect, challenged the legal sufficiency of the revised permits. The plaintiff argued that the citizen suit provision of the Mining Act, Section 8.05(a), allows a party to file suit at any time to force remediation of site conditions that do not comply with the Mining Act’s provisions—even if those conditions do comply with the terms of permits issued by IDNR. The trial court dismissed the plaintiff’s complaint, but the appellate court reversed, holding that the plaintiff could bring its claims because it alleged that the terms of the permits constituted ongoing violations of the law.
In Citizens Opposing Pollution, the Illinois Supreme Court reversed the appellate court and affirmed the trial court’s judgment. In its opinion, the Court considered, as a matter of first impression, the interplay between Section 8.05(a) and the administrative review provision in Section 8.10. Section 8.05(a) allows citizen suits 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.” Section 8.10 states that “all final decisions of the Department under this Act shall be subject to judicial review pursuant to the Administrative Review Law … except that the remedies created by this Act are not excluded or impaired by any provision of the Administrative Review Law.”
The Court held that the plaintiff’s interpretation would eviscerate Section 8.10’s directive that all final decisions shall be reviewed in accordance with the Administrative Review Law by making such review “entirely optional and nonbinding in the case of a final permit determination by IDNR.” The Court also noted that the IDNR mine permitting process provided ample opportunities for citizen involvement and judicial review. Finally, the Court rejected the plaintiff’s arguments that article XI of the Illinois Constitution—which provides a right to a “healthful environment”—provided a basis for challenging the sufficiency of the terms of the permits.
By affirming that the Mining Act’s administrative review process provides the exclusive avenue for judicial review of the terms of an IDNR mining permit, the Supreme Court’s decision in Citizens Opposing Pollution provides reassurance for mining companies such as Monterey—which found itself litigating permits issued years earlier, and under which the company had completed $28 million of reclamation work. Indeed, the Citizens Opposing Pollution Court noted that a contrary construction of the Mining Act would “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[.]”
Nonetheless, mining operators must ensure that their activities comply with the Mining Act and IDNR requirements. In its decision, the Court emphasized that the citizen suit provision permits original circuit court actions to compel compliance with the Act for non‑permitted activity or to force compliance with the terms of an IDNR permit.
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