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

ILLINOIS OFFICIAL REPORTS

Supreme Court

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

Caption in Supreme CITIZENS OPPOSING POLLUTION, Appellee, v. EXXONMOBIL

Court: COAL U.S.A. et al., Appellants.

Docket No. 111286

Filed February 2, 2012

Held A final administrative decision approving Mining Act permit revisions

(Note: This syllabus could not be challenged in circuit court after expiration of the time period

constitutes no part of for administrative review; and where it was alleged that environmental

the opinion of the court conditions violated the Mining Act, a citizen suit, which could be brought

but has been prepared as to nonpermitted activity or permit violations, was barred as to the

by the Reporter of permitted activity.

Decisions for the

convenience of the

reader.)

Decision Under Appeal from the Appellate Court for the Fifth District; heard in that court

Review 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.

Counsel on J. Timothy Eaton, of Chicago (Shefsky & Froelich, Ltd., of counsel), and

Appeal 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) (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.

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¶2 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 (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-1.2 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.

¶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

1

Plaintiff is a not-for-profit citizen group that was founded by Don Langenhorst in May

2008.

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).

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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. 2.3 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.

¶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

3

The revised Permit No. 57 and Permit No. 183 expired on January 8, 2005, and October 16,

2006, respectively.

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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 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.

¶ 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

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).

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complaint and for the voluntary dismissal of IDNR. The trial court granted the motions.

¶ 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 (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.

¶ 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) (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.

¶ 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

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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. 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.

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¶ 20 ANALYSIS

¶ 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” (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).

¶ 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

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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.” 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).

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¶ 29 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 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.

¶ 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 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).

¶ 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 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.

¶ 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

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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).

¶ 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. 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).

¶ 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.” 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.

¶ 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

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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.

¶ 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.” 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 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.

¶ 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

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Water Use Act authorizes a private right of action to challenge activity specifically required

by a permit approved by IDNR under the Mining Act.

¶ 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. 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).

¶ 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.

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