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

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State: Illinois

Court: 5th District Appellate

Docket No: 5-09-0207 Rel

Case Date: 09/24/2010

Preview:NOTICE Decision filed 09/24/10. The text of this decision may be changed or corrected prior to the filin g of a Petition for Rehea r i n g or the

NO. 5-09-0207 IN THE APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ________________________________________________________________________ CITIZENS OPPOSING POLLUTION, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Clinton County. ) v. ) No. 08-CH-56 ) EXXONM OBIL COAL U.S.A. and ) THE ILLINOIS ENVIRONMENTAL ) PROTECTION AGENCY, ) Honorable ) William J. Becker, Defendants-Appellees. ) Judge, presiding. ________________________________________________________________________ PRESIDING JUSTICE GOLDENHERSH delivered the opinion of the court: Plaintiff, Citizens Opposing Pollution, a not-for-profit citizens group, filed a six-count complaint against defendants, ExxonMobil Coal U.S.A. (Exxon) and the Illinois Environmental Protection Agency (the Agency), seeking to obtain injunctive relief to cause Exxon to remove and properly dispose of slurried coal production waste allegedly leaching into the community drinking water supply known as the Pearl Sand Aquifer located in Clinton County. Counts I through IV are directed against Exxon and contend that Exxon violated various provisions of the Surface Coal Mining Land Conservation and Reclamation Act (Act) (225 ILCS 720/1.01 et seq. (West 2008)). Count V is directed against the Agency and also alleges a violation of the Act. Count VI is directed against Exxon and claims that Exxon violated various provisions of the Water Use Act of 1983 (W ater Use Act) (525 ILCS 45/1 et seq. (West 2008)). Exxon moved to dismiss counts I through IV pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2008)) and count VI pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2008)). The

disposition of the same.

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Agency moved to dismiss count V pursuant to both section 2-615 and section 2-619. The circuit court of Clinton County granted defendants' motions to dismiss, and plaintiff now appeals. Plaintiff raises the following issues: (1) whether the trial court erred in dismissing plaintiff's complaint on the basis that there is no statutory authorization which allows plaintiff to challenge violations of the Act, (2) whether the trial court erred in finding that plaintiff's challenges to Exxon's violations of the Act constitute a permit challenge that must be handled through the administrative review process, (3) whether the trial court erred in dismissing count V directed against the Agency, and (4) whether the Water Use Act has an implied private right of action so that the trial court erred in dismissing count VI. We affirm in part, reverse in part, and remand with directions. BACKGROUND Monterey Coal, a division of Exxon, has owned Mine No. 2, a coal mine located near Albers, since 1977. From 1977 until August 1996, when the mine closed, a coal preparation plant and two coal refuse and slurry disposal areas operated on the property. The refuse disposal areas (RDAs) encompass a surface area of approximately 350 acres. The RDAs consist of two separately permitted areas known as RDA-1 and RDA-2. Coal refuse was placed in RDA-1 from 1977 until 1996 and placed in RDA-2 from 1988 until 1996. On November 16, 1984, the Illinois Department of Mines and Minerals approved Permit No. 57, which, inter alia , authorized the creation of RDA-1. On September 6, 1986, the Illinois Department of Mines and Minerals approved Permit No. 183, which authorized the creation of RDA-2. Thereafter, the Illinois Department of Mines and Minerals ceased to exist; its powers are now with the Illinois Department of Natural Resources (Department). As far back as 1979, M onterey Coal acknowledged the possibility of seepage from the refuse disposal area to the shallow aquifer and the possible contamination of the aquifer

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from slurry impoundment. As the voluminous record indicates, over the years there have been numerous state and federal adjudications pertaining to Mine No. 2 and reclamation efforts. On December 21, 1999, the Agency issued a violation notice which alleged that Monterey Coal violated groundwater quality standards. Without admitting to the alleged violations, Monterey Coal entered into a covenant with the Agency. On June 24, 2002, the Agency approved a corrective action plan with a groundwater management zone. On March 3, 2004, after a public hearing and comment period, the Department approved revised permits with regard to Permit No. 57 and Permit No. 183. Exxon began the required reclamation, which was substantially completed in December 2006. According to Exxon, more than $28 million and thousands of man-hours were spent on completing the reclamation of the RDAs. Nevertheless, surrounding property owners continue to complain that their groundwater was being contaminated and that the approved plans and the permits have not adequately protected the hydrologic groundwater balance. As far as the immediate history of this appeal, the action was originally filed on August 8, 2008, by plaintiff, a group of citizens living near the mine who are concerned about the quality of life, specifically, the water supply, in their rural community. The original action was an 18-count complaint filed against Exxon, the Agency, and the Department. The complaint requested that the court grant injunctive relief, that Exxon be required to submit a permit-renewal application that would meet the performance standards of the law, and that the Department be required to approve only a permit that meets the performance standards stated in the law, which plaintiff alleged are not being met. Defendants filed motions to dismiss. Both Exxon and the Department claimed that the mining permits had expired and that there was no need for renewal. The revised permits had indeed expired on January 8, 2005, and October 16, 2006. Accordingly, plaintiff responded with a request for leave to amend and a motion to voluntarily dismiss the

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Department. The trial court allowed the motions, and an amended complaint was filed on December 22, 2008. In count I, plaintiff seeks injunctive relief and asks the court for the following relief: "(1) Find that: a) The post[]mining land use, for the land where the impoundments of coal mine waste are located, does not meet the definition of 'Pasture Land['][;] b) The land that is currently coal mine waste impoundments had a pre[]mining land use that was higher or better use than pasture land; c) The current land use for the coal mine waste impoundments are [sic ] as impoundments or undeveloped land and are [sic ] not allowed as appropriate post[]mining land uses; d) The impoundments present an actual or probable hazard to public health or safety; e) The impoundments pose an actual or probable threat of water diminution or pollution; (2) Order Exxon to develop and implement a written plan that resolves the ongoing violations of law by meeting the standards of the Illinois M ining Act, the applicable regulations implementing the Illinois Mining Act, and any Orders of this Court; (3) Mandate that the plan to be developed and implemented by Exxon must restore the land to a condition capable of supporting row crops or a use that is higher or better than row crops; (4) Require Exxon to remove the permanent impoundments known as RDA-1 and RDA-2 and properly dispose of the wastes contained therein at a facility that

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meets the standards of a sanitary landfill thereby ensuring the protection of groundwater; (5) Award Plaintiff the costs of litigation, including attorneys' fees (at the same hourly rate as Exxon's attorneys charge in this case) and fees for expert witnesses and consultants for bringing forth a claim of importance to the effective enforcement of the Illinois Mining Act; and (6) Grant such other relief as this Court deems appropriate and as may be requested as the case develops further." In count II, plaintiff also seeks injunctive relief and asks the court for the following relief: "(1) Find that: a) Impoundments constructed of coal mine waste or intended to impound coal mine waste may not be retained permanently as part of the approved post[]mining land use; b) Exxon has permanently retained two impoundments of fine coal mine waste slurry that are impounded by coarse coal mine waste; and c) The permanent retention of the two coal mine waste impoundments is an ongoing violation of the Illinois Mining Act. (2) Require Exxon to develop and implement a written plan that resolves the violations of the law by meeting the standards of the Illinois Mining Act, the applicable regulations implementing the Illinois Mining Act, and any Orders of this Court; (3) Mandate that Exxon develop and implement a written plan to provide for the removal of the impoundments known as RDA-1 and RDA-2 with proper disposal of such wastes contained therein at a facility that meets the standards of a sanitary landfill and that is therefore protective of groundwater ***."

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Count III seeks injunctive relief and asks the court for the following relief: "(1) Find that Exxon has: a) Permanently retained two impoundments of fine coal mine waste slurry that are impounded by coarse coal mine waste; b) Permanently graded Mine #2's property in a manner that does not restore the affected land to its approximate original contour; c) Performed or avoided grading at the site in a manner that does not support the proposed post[]mining uses; (2) Require Exxon to develop and implement written plan that resolves the violations of the law by meeting the standards of the Illinois Mining Act, the applicable regulations implementing the Illinois Mining Act, and any Orders of this Court; (3) Mandate that Exxon implement a written plan that provides for the restoration of the affected land to a grade of no more than 10% in any location ***." In count IV, plaintiff requests the court for the following relief: "(1) (2) Find that Exxon is in violation of the Illinois Mining Act; Find that Exxon's 'substantially completed' reclamation of Mine No. 2 fails to minimize disturbances to hydrologic balance of groundwater by: a) Continuing to leach excessive quantities of sulfates, chlorides, total dissolved solids, iron[,] and manganese into the groundwater beneath the mine site and neighboring properties; b) Pumping 4 million gallons of water from the Pearl Sand Aquifer each week, thus altering the flow of the aquifer and altering the recharge capacity of the aquifer; and c) Allowing 85% of precipitation to infiltrate and mix with the

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waste[,] allowing contaminants to be leached into the aquifer. (3) Require Exxon to develop and implement a written plan that resolves violations of law by meeting the standards of the Illinois Mining Act, the applicable regulations implementing the Illinois Mining Act, and any Orders of this Court; (4) Require Exxon to develop and implement a written plan to provide for the removal of the impoundments known as RDA-1 and RDA-2 with proper disposal of such wastes contained therein at a facility that meets the standards of a sanitary landfill and that is therefore protective of groundwater; (5) Mandate that Exxon provide for active treatment of the groundwater plume, during the time in which it removes the impoundments and any necessary time thereafter, such that Exxon restores all of the water in the Pearl Sand Aquifer to Class I Groundwater Quality standards ***." In count V, directed against the Agency, plaintiff requests the court for the following relief: "(1) Find that the Groundwater Management Zone [the Agency] issued to Exxon fails to minimize disturbances to the hydrologic balance at the mine site and in associated offsite areas by: a) Continuing to leach excessive quantities of sulfates, chlorides, total dissolved solids, iron[,] and manganese into the groundwater beneath the mine site and neighboring properties; b) Pumping 4 million gallons of water from the Pearl Sand Aquifer each week, thus altering the flow of the aquifer and altering the recharge capacity of the aquifer; and c) Allowing 85% of the precipitation to infiltrate and mix with the waste[,] allowing contaminants to be leached into the aquifer.

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(2) (3)

Find that the Groundwater Management Zone violates the Illinois Mining Act. Find that the Groundwater Management Zone issued to Exxon by [the Agency] fails to meet the requirements of 35 Ill. Adm. Code [

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