Supreme Court Summaries

Opinions filed February 2, 2012

Citizens Opposing Pollution v. ExxonMobil Coal U.S.A., 2012 IL 111286

Appellate citation: 404 Ill. App. 3d 543.

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.

In southwestern Clinton County, near Albers, defendant ExxonMobil's coal mine operated until 1996, when work to restore the land began. Defendant held mining permits issued under the Surface Coal Mining Land Conservation and Reclamation Act (also known as the Mining Act), which is administered by the Illinois Department of Natural Resources. Mining permits contain plans for land reclamation, and permits for the two coal "refuse disposal areas" at issue here had been granted in 1984 and 1986. In 1999, the Illinois Environmental Protection Agency issued a notice of violation concerning groundwater quality. A corrective action plan was developed which was approved by the Agency in 2002. After a public hearing and comment period, the Department approved revisions to the 1980's permits on March 3, 2004.

Don Langenhorst (who later, in May of 2008, was to found the nonprofit group that is the plaintiff here) filed a request for administrative appeal that was later joined by other Clinton County residents. Their challenge to the Department's approval of the revised permits was not successful and a final administrative order, finding that regulatory requirements were satisfied, was entered on May 25, 2005. The Mining Act provides that judicial review of such final administrative orders may be sought in circuit court, but the complaining parties did not do so within the required time period. Instead, unsuccessful attempts were made to obtain federal relief.

The Mining Act contains a provision which allows citizens to bring suit under it. Pursuant to this section, plaintiff filed an action in the circuit court of Clinton County on August 8, 2008, naming the mining company, the Department, and the Agency as defendants. The complaint alleged that the reclamation plan contained in the revised permits did not comply with the Mining Act and also that there were violations of the Water Use Act. The circuit court dismissed the action, holding that, although conditions at the site were complained of, no permit violations were alleged and, in any event, administrative review had not been sought within the time required by law. Plaintiff appealed.

The appellate court took a different view, noting that the surrounding property owners continued to complain that their groundwater was being contaminated and that the approved plans and permits had not adequately protected the hydrologic groundwater balance. Saying that "Exxon wants us to ignore continued environmental violations simply because permits have been issued," it opined that, if there were ongoing violations, citizens could file suit about them. It reversed, and the defendants appealed.

The Illinois Supreme Court did not agree with this approach. It construed the different provisions of the Mining Act together and held that a suit by citizens may be brought concerning activity not covered by a permit, or, if a permit has been issued, to enforce its conditions. However, a citizens' suit may not be brought claiming violations of the Mining Act once a permit has been issued, as was the case here. Neither does the Water Use Act provide for a citizen action. The administrative review process is the exclusive route for circuit court review if a mining permit has been issued, and timely administrative review was not sought.

The circuit court was affirmed.