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12/10/87 the City of Quincy, v. Richard Carlson Et Al.

December 10, 1987

THE CITY OF QUINCY, PLAINTIFF-APPELLANT

v.

RICHARD CARLSON ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

517 N.E.2d 33, 163 Ill. App. 3d 1049, 115 Ill. Dec. 68 1987.IL.1824

Appeal from the Circuit Court of Adams County; the Hon. Robert L. Welch, Judge, presiding.

APPELLATE Judges:

JUSTICE McCULLOUGH delivered the opinion of the court. LUND and KNECHT, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCCULLOUGH

On June 11, 1986, the Illinois Environmental Protection Agency issued a section 4(q) notice to plaintiff, the city of Quincy, alleging potential liability for release of hazardous substances in violation of the Illinois Environmental Protection Act (Act) (Ill. Rev. Stat. 1985, ch. 111 1/2, par. 1004(q)). On January 21, 1987, the plaintiff brought suit for declaratory relief challenging the constitutionality of the section 4(q) notice provision and its potential liability under the Act. On January 22, 1987, the plaintiff filed a motion for preliminary injunction to enjoin enforcement of the provisions of the section 4(q) notice. The circuit court of Adams County denied the motion and, on April 13, 1987, granted the EPA's motion to dismiss the complaint for declaratory relief. The court granted judgment on the pleadings as to count I, upholding the constitutionality of the section 4(q) notice provisions, and dismissed the remaining counts for failure to state a cause of action.

The plaintiff appeals the order of the court and in support thereof maintains: first, section 4(q) of the Act is unconstitutional for deprivation of due process; and second, the court improperly dismissed counts II through V of the complaint. We affirm.

The controversy herein involves a plot of property in Adams County which was used as a landfill. During the years 1971 through 1976, the EPA issued numerous permits for the operation of a waste disposal plant. The EPA approved disposal of both solid and liquid waste products. All permits were granted according to EPA specifications which included defined and analyzed waste characterizations and chemical analysis.

On June 18, 1979, the EPA certified the landfill as closed and covered. The plaintiff was informed of the three-year post-closure requirements pursuant to the rules and regulations of the Illinois Pollution Control Board. Ill. Rev. Stat. 1985, ch. 111 1/2, par. 1022.3.

On July 11, 1986, the EPA issued a section 4(q) notice to plaintiff informing it of "actual and/or threatened release of hazardous substances from the site [which] may present an imminent and substantial endangerment to the public health or welfare or environment." Analysis of numerous groundwater samples taken from the site demonstrated the presence of hazardous materials. The notice outlined the identified response action to be undertaken by plaintiff in compliance with the Act. (Ill. Rev. Stat. 1985, ch. 111 1/2, par. 1004(q).) Plaintiff was further informed of potential liability for punitive damages for failure to comply "without sufficient cause" pursuant to section 22.2 of the Act. Ill. Rev. Stat. 1985, ch. 111 1/2, par. 1022.2.

The plaintiff's complaint for declaratory relief sought recovery on five counts. Count I challenged the constitutionality of the section 4(q) notice provision. Specifically, plaintiff claimed the absence of a preenforcement hearing, the lack of an alternative means of contesting alleged responsibility for hazardous discharges, and the potential threat of punitive damages deprived it of its constitutional rights to due process of law.

Count II alleged the section 4(q) notice issued by the EPA herein was void for vagueness, since the notice failed to specifically identify which statutory or regulatory provisions were allegedly being violated, and which hazardous substances were being released, and it could not be enforced.

Count III maintained the EPA was estopped from instituting the section 4(q) notice procedure because the EPA was aware of the potential for groundwater contamination when it granted permits for disposal of various liquid waste products.

Count IV asserted the EPA was withholding information sought by plaintiff and fully discoverable pursuant to the applicable provisions of the Illinois Administrative Procedure Act. ...


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