our first case on the call the docket today wednesday september twenty one two thousand and eleven is agenda number eighteen case number one eleven two eighty six and one eleven three zero for citizens opposing pollution versus exxon respect to the groundwater in two thousand and five he again appealed it in administrative review which he had the right to do there was a hearing officer appointed a hearing officer confirm he chose not to pursue administration review in the circuit court he then filed an appeal with the office surface mining in the federal procedure it went to the field office where the plan was affirmed it went to the result director it went to the interior board of lambda feels it was affirmed in two thousand and eight he incorporated and then there was a letter sent to the department into exxon giving them a sixty day notice for a citizen suit seeking to revoke the permit at every stage that this case was heard there was an opportunity for them to weigh in as to whether this department should issue the permit and they took advantage of that so for the plaintiffs in the sierra club in their amicus brief to suggest that the courthouse stores had been closed is simply not true they've had ample opportunity in two thousand and six when there needs to be a modification to the permit they again file the ministry of appeal they again had a public area they again had the department's decision on this affirmed now they're seeking to one as to what the permit actually contained yes but assistance to is always available when the department is challenged as to whether or not they're enforcing the permit and there's a violation citizen can come in and give a sixty day notice to the department if they don't take an action then the department can then this is and can follow up and the second circumstance is if someone is operating without a permit then they can bring a citizen's suit but with respect to what's decided in the ministry to review the statute very clearly says in section eight ten in the first sentence that final administrative decisions of the department shall be subject to administrative review so to look at all aspects of the statute says the suits are permitted into circumstances where there's administrative review yes your honor they would be precluded from sad of course you would have the authority to imply right your honor but i do not believe it would be necessary because under the water use act it sets up a procedure where the department of agriculture is involved in the complaints with respect to someone's right to use their water they can file a tort action or they can go to the local conservation and water district working with the department of agriculture there is in the ministry the process set up and as this court has held repeatedly where the statute provides for administrative procedures and it can be enforced there's no need to imply a private cause of action and we contend that the judge in the lower court was absolutely right that there's no private cause of action of the water use that and in this case the repercussions are immense because after we received the permit that had been approved by the department that had gone through administrative review we went forward in reclaim that land at an expense of twenty eight million dollars and now the plaintiff wants to come in in the guise of the citizens of it and say well you have to do it all over we find unacceptable what you did and i think judge becker in the trial court had it right when he said a permit is not issued unless a department is satisfied that the requirements of the act are met to allow plaintiffs interpretation of the provisions of the act a citizen suit could render the permit process meaningless and require circuit courts throughout the state to relive again a permit issues after those matters have been addressed by the department now unfortunately the appellate court was wrong in one major assumption the appellate court opinion said that they would allow the citizen suit because this involved in the enforcement of the permit they're just wrong and the pla department's decision it's not a violation of what the permit allows it's their collaterally attack in what the department decided was an appropriate reclamation in the legislature has given primary responsibility of deciding what should be done in only coal mines both respect to their operations and with respect to the reclamation to the department and if the department makes a mistake there's of the department they chose not to instead four years after we had gotten the permit two years after our reclamation was complete they file a citizen suit saying you need to start over because we don't agree with your plan and then there be an action alleging a violation of the act separate and apart from alleging violation of the conditions of the permit ron i think the only again the only two instances that we see in looking at the statute would be as far as the permit is concerned what is set out in the permit is final but if they are operating in the in violation of the permit or and perhaps this goes to your question if they are doing things that the permit doesn't cover in violation of the act then the proper procedure would be to file a sixty day notice with the department and on the owner and say you are doing this it's not addressed in the permit it's in violation of the act and at that point then the department can modify or revise the permit at least there would be a process but in every jurisdiction particularly the problem case three side in new york or excuse me new mexico they had this exact same issue and in that case the plaintiff had gone through administrative review and the court still said you're precluded because we are not going to allow collateral attacks on the permit after it has been issued because everyone's relying on it now the only call association has weighed in and they have said that these impoundments are r d a's which we mentioned a number of times in our brief have been permitted at every call site mining site in the state if the citizen suit prevails here all of those would be subject to being redone and the difficulty from a policy point of view is not every coal owner is exxon mobil you've got some that are just getting buy in if they've spent millions of dollars to reclaim the land pursuant to rim permit that they thought was final what's going to happen they may go into bankruptcy and who's going to get stuck with remediating that land beyond what the department's already required the taxpayers so there's a real policy issue here that supports anality of the permit once it's been determined by the department the other thing about administrative review which is court well kno is that you have the administrative expertise if you have a citizen suit they don't even have to be a party that's another issue here they're no longer a party so if the judge circuit court judge were to decide that we have to do something different we would be in violation of the permit and our obligations under the permit so we're risks that's why this process isn't working in by the way i do want to raise one i think very important issue although the permit has expired and there are two permits for these r v s in two thousand and five and two thousand and six we are still subject to the obligations in those permits we can't start over and what the plaintiffs saw in their sixty day notice was a revocation of those permits they've not changed those notices even though they amended their complaint to allege so called violations which is not true because they they can see they just disagree with the department so what we're asking this court to and again the idea in our his filed a brief in support of our position because of the we create around the state if their final permits can be challenge after there's been a minister to review in after the reclamation has taken place i e p a is weighed in the coal association is weighed in because a coal mining is a very important business in the state actually have one of the third largest coal reserves in the country no one's going to come here if they can't be sure that when they get a permit that they're not going to be subject to attack four years later five years later six years later the department is in charge and that's what the statute intended so we speculate ass that this court reversed the  issue secondly you know my my times is fairly good just with respect to resident cotta we believe all the issues that were raised in the ministry review are the same issues that are being raised in this the illinois environmental protection agency i think counsel for the coal mine has thoroughly addressed most of the issues that are the same as to the e p a i'm not going to repeat them i do just want to stress a couple of points though again  public of clinton county mr lag and horsed have had ample opportunity to challenge this permit that challenged it administratively they have the opportunity to challenge it in court they didn't do that they've had they've had public knows public comment opportunity to hold the record open after public comment was finished that had opportunity for judicial review they've had they've had administrative hearings and this matter the second point i want to stress is that and i think counsel just touched on the agency's construction of the citizen suit and administrative review review provisions best accomplishes that and would would the citizens not have a right to sue if there was in fact a violation of the act that was not covered by the permit if there was a violation of the act that was not covered by the permit yes that would be something where they have the right to bring that to the attention of the d n r send their sixty day notice and if not oh but you're saying the sixty day notice as mr eaton referred to also but not a separate right well of action that's part of the citizen suit procedure first you bring your sixty day notice and then if the d n r does not act that the citizens can go and bring their own suits they would still have that power to force that way mr barrow of his that only in  situation the justice karma or referred to that's a violation that's not in the permit but it's a violation of the act or are you also saying that that's the procedure if if there's a permit condition in the eye u p a or whatever the agency is i guess this is the agency  rectify to remedy the problem before and then if they don't act accordingly then the citizen come in and file suit the the citizens oppose inclusion concern the policy concern that they raised is that if we don't allow these collateral attacks on administrative permits that pollution will go on remedy but again that's an unlikely scenario this is remember this is both a state and federal joint regulatory system there's federal oversight of the state regulations not only is there federal regulation oversight but again mr wang horse and other citizens the clinton county residents brought the citizens complaint with the federal office of surface and mining and they they found that the sta this decided that portions of that the allegations there were constituted a collateral attack in iran permitted in portions did not and could proceed as an enforcement action our view is that i think that the language of the many complaint bears out that all of balance it they're not alleging obviously that the illinois e p a is violating the permit that would be impossible since the collective action plan created by the e p a was actually part of the permit here the department of natural of natural resources the final decision maker here their the mine regulator if there's a problem with the permits in forstmann that's the agency that is responsible for rectifying both the attacks here are solely attacks on the illinois e p a is corrective action plan the ground water management zone was occluded the cracking corrective action plan and it's an improper collateral attack on the permits but again on the race  proceeding there both the plaintiff and his expert witness admitted that that the ground water management zona corrective action plan prevented material damage to the product to the property and before the losses this service mining the issue was again litigated and a federal agency found that again one of the objections they raise they didn't have ample opportunity to contest the permits as as has been stated repeatedly they've had public notice a public hearing was held mr lang of course testified at the public hearing they both had the opportunity for administrative appeal sought such administrative appeals there's been no allegation of any change in the law or regulations governing groundwater remediation the regulatory standards here are the same as when they were the permits were issued and in the absence of any such change performance stand of let me ask you this question when you mention about there's no change in performance standards on not sure exactly what that means but let me pose this question let's assume everybody in this case agrees that permits i know they don't want but were properly issued in the first instance if you have a permit that runs a long time and technology changes and it's really undisputed that that the conditions are now how dated are deficient because there's a higher degree of sophistication of detecting water pollution how does that how does a citizen if the a p a doesn't act on that how does a citizen get that into the into the mix that would that would the system would get that id to make if the regulatory standards themselves changed if the rail i'm saying if they don't if they don't change then i think it's up to the citizen i just want to talk about the science of it this and then the agency i mean if they have ground water my on a tree wells that have a certain type of sophistication and they were the proper tool back fifteen twenty years ago but now we have a better detection system for how you get that into the into the into the mix i do i don't know the exact answer that i've there are methods to change regulations to get bring these things to the attention of the agency to change standards and if chip standards were changed the one where i mean by performance standards i mean the regulatory standard for what constitutes pollution or then at that point the operators would presumably have to get a new permit but as far as the exact mechanism i don't know as a standard thank you thank you police court pending livingston for citizens opposing pollution citizen suits are authorized to compel compliance with the performance standards of the mining act and those performance standards should be in a permit they don't happen to be in this permit appealing a permit and going through an administrative process is separated in the very language of the legislation from compelling compliance this court recognized in glisten the marian when they were citing the house committee notes that it is a fundamental right to have a healthful environment this is in our constitution and that that the expression of this right provides the vehicle for the individual to prosecute a violator so when they talk about th that's true ok and the plaintiff president lost before the administrative body that's true that's true and the point is president chose not to pursue an appeal of if so we're right so far in fact that the trial court who had a completely different opinion here found this suit to be a thinly veiled second bite of the apple for lack of a would you agree that the foundation of the appellate court's holding was that this was an action to enforce permit compliance i would agree that it was to enforce the performance standards of the statute as judge golden hurst pointed out and it is in his opinion permit condition c requires that the applicant be in compliance with all the political state and federal laws and with the performance standards of this act well they're not so i couldn't force the permit if i wanted to but when they came in and they said our permit expired then there would be no reason to enforce an expired permit would there so sun is there is mr in it even right at the point of conceded the monterey had complied with the permits and stated for the thousand gallons a day out of the first of that while their permit contingent continued i think there was some kind of acquiescence when they were doing summary judgment about the material balance of the aco for it if if  so you're saying very with respect to a certain issue they don't have a problem with compliance and when say that but i would tell you that that administrative appeal was then appealed to the federal office of surface mining and they determined that the groundwater issue was premature and by the way when they say about their unlikely scenario everyone knows what's going on here the groundwater is poisoned and no one in that area can use the groundwater for their drinking water anymore even though they've used it for generations since the law requires that you have to return the land to its prior use which was prime farmland and they haven't done that since the law requires you have to return it to the natural contours and they haven't done that since the law says no final land use can the if this court finds that this is about an attack on the permit vs can point right there in the senate is this if we find that ok i'm not saying we are and that you know i have no idea but  interpretation says that you can seek to destroy review for all final agency decisions we're not seeking any kind of review of a final agency decision the permits are over with we're trying to enforce the performance standards for the site conditions that's what environmental prosecutors do they enforce the law the site conditions not an administrative decision you can't go and get a permit that let you violate the standards of the law when that law says that all final agency correct it definitely is unlawful but i'm not attacking the permit because i don't have to i can compel compliance with the performance standards of the act and the performance standards of the x a that when you're done with reclamation you can't leave permanent four hundred twenty two acres of high hazard dams made of acid leeching production production waste to be sitting on people's aquifer you don't get to do that you have to help me i'm not an engineer well a lawyer ok i don't understand those words but i enforcement and not an attack on the permit from selves all right i may not be able to tell you exactly each count what they are but the first count would be that they have contaminated the groundwater and while in the street and talked about the any reference to impoundments in the permits that we're talking about now the permit doesn't reference impoundments but what the permit does do is it authorizes their refuse disposal areas to be considered pasture land when they're not understand the nature of your complaint no you wouldn't need to because the permits are independent of the site conditions and this is at the end now if if you were trying to challenge an active mining permit i don't believe that a citizen could stop the mine from mining if they had a permit this permit has expired it's over with when you're done with your permits the law says and the policy of the state of illinois is that you are to take the affected lands and you are to conserve and reclaim them in order to rest restore them to an optimum future use well there is the optimum future use according to the statute is the prior use or a higher use the prior use was prime farmland well four hundred acres it has this waste is not  don't have to go to the permit where they're authorized to have cropland that's not cropland or passion land it's not passion land because the constitution allows citizens to go forward when the legislation lets them go forward to protect to help the environment and this legislation end use of cropland was before that agency affecting the material balance of the article for was before that agency the groundwater issues were determined to be be premature the issue of a permanent impoundment which by the way solves all the other issues if you remove the source of contamination we can have our ground water back so the issue of permanent comic could've been raised because they were continuing their permit so you didn't know that reclamation was complete and until reclamation is complete you don't realize they're not in compliance with the statute by the way the statute that authorizes the permit system you can i have a permit system that can then overrule the performance standards of the statute and when you look at the administer you seem to be arguing that the permits violate the statu permits are on lawful but the permits have expired and we don't have to enforce the permit or challenge the permit because that's not the exclusive remedy under this law this law says you have the right to compel compliance with the law independent the permit that they happen to get that's illegal and compliance with the law is you don't get to have permanent impoundments and you have to have the prior use or a higher or better use when you're done with the land the entire legislative intent we talked about policy the entire legislative intent is to have our lands restored to productive use and when you look at the intent of the legislature and when you interpret the statute to fulfill the intent of the legislature the intent of the legislature is clear it says to restore protect and enhance the ground waters of the state as a natural and public resource we need our ground waters restored i suppose i could have brought a nuisance case but why when i have a statute that authorizes me to compel compliance respect before this court at this time that were brought before the agency as you know i don't think it is because i don't think you have to collaterally attack a permit nor enforce a permit if you have a violation with the underlying statutory provisions that's why you even see in the statute that it authorizes not only can you sue the violator you can sue a government agency if they're violating the statute or they're not very import to there wasn't an appeal of the ruling of the administrative agency on those issues what would be the point that's what i think the client thought what would be the point when you can't even get idea not to acknowledge that hazardous waste dump is not cropland or a higher or better use than the prior use but i would say this if you look at rescue the kata there are exceptions for rescue to cut as well and there and we fall under every single exception the judgment in the first action a permit appeal is inconsistent with the equitable implication of a statutory scheme while the permit says comply with all the laws but the permit lets them have an end use that doesn't comply with a lot the permit lets them continue to poison people's drinking water not allowed under the law could the could could the citizens totally ignore the administrative procedure and not participate at all and bring their bring their own lawsuit because they don't like what they don't like what they see or they don't like the results of what what's happened i think if you have an active mind that's operating and you don't like the conditions of the permit you have to go through the administrative review law to challenge those permit conditions if you are at the end of its reclamation and they say it's over with you can't have site conditions that are out of compliance with the law so your your complaint is that either that the state agencies didn't do enough or that they didn't exactly correct standards is that right essentially the state agencies letting them poison the law if later on they find out while the private citizens are dissatisfied with the states or i can tell you the answer to that make your application lawful don't put unlawful things in your application for the idea not to rubberstamp don't say you're going to leave your pits sitting on people's aco first to get approved they know what the law is they know what the regs are and they knew that their application was unlawful so if you're out there and i notice the call association said there are days like this all over the state that's scary i don't know what those other ideas are doing but this are these are poisoning people's drinking water and it's not allowed it's not the policy of the state of illinois to allow pollution it is that we are supposed to be returning the land the whole point of the mining law two points one to for now i think you just said the application was also also a mall true enough so if the permit was unlawful it was on lawful at its inception true it was ok but you have no administrative review has taken that  with the first exception arrestor caught it as if it's inconsistent with the equitable implication of a statutory scheme or not returning the land to an optimum productive use so it is inconsistent with the very first thing listed in the act to say what is the policy of the state of illinois that lands affected by coal mining must be conserved and reclaimed in order to restore them to optimum future productive use this and to permit the conditions of the permit did not provide for yourself so correct well eventually i mean when they first started they didn't have a reclamation plan and then they just modified it after they poison the water to come up with this pumping system to mix their poisoned water in the cast cast and send it downstream that was something recent that came about in in two thousand and two two thousand and really is this really the fourth time some of these issues are being brought to life not that i know of there was the administrative appeal then there was a fight about the boundaries because he thought the permit should have been still open if you're going to change the boundaries and send your water down to the some of the claims or council word for word from the first administrative appeal except for the issue of leaving permanent impoundments as an end use which is a violation of the statute which the citizens have the right i would call even consider preclusion as a know because you have the fact that it's inconsistent with an equitable implementation of the statutory scheme and also the second exception to rescue caught on the wrong suffered by the  recurrent or ongoing nature sure is the water still poisoned the land still hasn't been reclaimed or the plaintiffs clearly in convincingly convincingly shows that the policies favoring preclusion are overcome by some extraordinary reason this is a withstood challenges and if i was someone and i just moved to that area and i found out that behind my house was four hundred twenty two acres of hazardous waste leeching into the opera for in that the land had not been restored the fact that i wasn't around when permits were issued years ago would preclude as a matter of fact yesterday water management on the issue that was raised was that the hydraulic balance was not being taken care of as the statute requires but that also relates to the management of it so specifically in your january two thousand and five she was raised permits i would say that's true one thing that was not challenge and has never been challenging the entire state of illinois is that you're not allowed to have permanent impoundments of anything but clean water and this isn't like the t v a where it would be and that's what they said no they admitted lee they didn't look at preclusion so the if we look at preclusion we would have to look at the list of effect of the the judgment continuing with would seem to indicate that they started at a point in time and continued could any of those continuing violations at the site have been raised in a previous determination yes i believe they all could except i don't know how you would know that you had a permit in palm until you knew that reclamation was considered complete but yeah i think you could have raised it but we have ongoing violations you could say hey that permits illegal you shouldn't be doing that in a permit but it's not the exclusive remedy according to the statute the statute reads very clearly it says nothing in the administrative review law excludes or impairs the remedies and this law citizens can go and sue if they are out of compliance independent of the permit but how does inconsistent with a statutory scheme about the ongoing nature when you get to collateral estoppel related geisha of an issue in a subsequent action between parties is not precluded when this is on page thirty one of my brief when the issue is one of  law and the two actions involve claims that are substantially unrelated if you're talking a about you can't have a permanent empowerment versus you can't have an end use that that's not really cropland i think that that would be different issue and it is a matter of law as a matter of law the statute says you can't have a permit empowerment of poison as a matter of law it says you have to return the land to the natural contours as a matter of law it says you have to restore the land the entire legislative purpose if you allow a permit to collaterally a stop people from challenging it enforcing the law then you've essentially said everybody has to be aware of all the promises that are going on and they could never then you could never in force and compel compliance which is the whole point of the law and when you look at the legislative history to even talk about hey let's make sure that citizens can get in here and compel when this is when the state doesn't the fact that i didn't are now e p a did not enforce the law and they're trying to stop them for some of the law gives you a real good clue about how powerful exxon really is and as far as the policies go when you look at the statute it tells you that but that the whole policy of this law is to protect the health safety and general welfare of the people the natural beauty in a invaded from a different approach ok if your case were to proceed and you were to succeed i hope so if your case were to proceed and you were to succeed what is the remedy you would receive and specifically would the remedy have anything to say about the permit in terms of this being a collateral attack on the permit the permits have expired reclamation is supposedly complete so would have no effect whatsoever on the permit because the mining stopped in one nine hundred ninety six and so we're not going to stop mining operated the remedy you would get the there is no evidence in this record or anywhere else that he wants ground water has been poisoned i e p a i d n are monitors groundwater monthly quarterly we monitor it weekly there is no evidence although council peter only has said that before this court with respect to the permit citing from the federal regulations which we have also included in our brief a permit t need not be new the permit if no surface coal mining operations will be conducted under the are met obligations a stablished under a permit continue until completion of surface coal mining and reclamation operations are terminated we posted a bond which says that until this reclamation is done they will not release our bond and if we don't recall aim it in exactly the conditions that the required then they can use our bond to continue their reclamation there's no evidence here that there's been any violations as a matter of fact just thomas to your question the trial court monterey's saying they're doing what the permit requires miss living third time when there was even sanctions right in this justice thomas pointed out this is the fourth time that this is been raise it ministry to review process at every step heard what was going on with re review your honor there were four points that were raised one that the land had to be returned to the original contours that was addressed because our v a s are recognised all over the state and in the apartments expertise that was the best way to treat this second the highest and best use there is no hierarchy in the statute either in the federal or in the state that says it has to be pasture land which by the way it is now or that has to be agricultural every step of the way they have been confirmed there simply is no evidence here that anything harmful is occurring at that site and those four issues are dress in this several years at the apartment expertise with input from says ns at every single step of the way this permit is what they did not need to renew but every obligation required in this permit addresses these four issues and by the way in our pending tab eight we have to your point justice thomas we have on the left side the allegations that are a complaint and on the right side where it's addressed in the there is no question that every issue that's raised in this complaint every issue that was raised a minister to review was covered by the permit and is in their complaint now and to just  you asked a question mr paraffin and let me take a stab at that as well i believe your question was what happens if there's new technology or changes that would require the permit to be revisited and the way that would be done first of all is by the department they have the expertise to determine that and if this isn't does not believe the department is doing the right job in forcing that permit they can file assistance or they can state what they think is wrong and they can go says in the six day notice says she wants to revoke the permits that's what that notice says it doesn't say there are violations of the permit it doesn't say that there are violations other than what the permit requires she wants to revoke permit and when she was called upon that at the trial court level she found amended complaint and said well these are form and standards violations is what the permit entitles monterey to do it's what they relied on has been the thirty million dollars to so i just want to talk that little bit about the administrative decision here the view with the before the department of natural resources here this is one of the issues that was adjudicated this is independents and moderates appendix a to seventy nine whether the pros remediation plan for the gop pile which is the refuse disposal areas adequately addresses the contamination of the aquifer that's the groundwater issue on summary judgment what the department found was the petitioners under expert witnesses and this is hundred eighty four the petitioners in their expert witnesses robert johnson have admitted the revisions as approved prevents material damage to the hydrologic balance outside the mine proper property and minimizes the disturbance of the hydrologic balance within the boundaries of the mind the issue has been litigated the issue has been decided there is no impairments there are no there is no leeching poisons into the ground water here now under the administrative regular under the promise ministry of regulations the judicata it's not equitable equity doesn't get you out of race you're caught if you don't like the result it gets you out of it gets you out of race to the cot if there's been perhaps some procedural flaws you haven't had an opportunity to be heard if there's a change in the law or some other material change in circumstances none of that has been alleged here none of that it exists here the laws now is the same is that the law existed at the time this permit was issued again  the citizens of clinton county mr lang and horse the citizens oppose inclusion having had that opportunity to contest this permitted ministre to review they didn't take they've availed themselves of that they lost they didn't seek know that there's budget cutbacks don't have enough inspectors and no no maliciousness nothing bad with the i the water's not being tested they go out and they get a retired i e p a or whoever or whatever these agencies are d n r somebody inspect that they find that the water tomorrow is it has impacted do they not have the right despite all this history to file a new i think you call that sixty day notice and then the agency doesn't do anything w not still be able to enforce the new it you information tomorrow about pollution if the new mation is something that's not part of the permit if there if there are exceeding their what they were allowed under the corrective action plan if there are some  other substances may be found in the water that is outside the permitted activity then they that and that then the d n r or the citizen would have the power to enforce that as a violation of her in addition if the citizen doesn't feel the r isn't doing an adequate job they can also file a citizen's complaint with the federal office of surface mining which was done here and the federal officer of his mine again found that the department of natural resources was complying with all the state requirements adequately them from permits out for violations that are out of violating standards are outside i'm only interested in what the permit says if rights violated did they not bring that tomorrow if the permit is why later if if the permit is violated yes if they're not doing what the promise says they're required to do they can bring that suit if they're doing what the permit says they're required to do and there's no allegation here that the that the monterey exxon is violating the permit this is a defacto on the permit itself it's an attack that says the permit does not comply with the law that's all of the allegations in this complaint thank you thank case number one living to eighty six and want to live in three or four citizens opposing pollution in exxon mobil who has taken advisors agenda number eighteen