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07/28/94 NATIONAL MARINE v. ILLINOIS ENVIRONMENTAL

July 28, 1994

NATIONAL MARINE, INC., APPELLEE,
v.
THE ILLINOIS ENVIRONMENTAL PROTECTION AGENCY ET AL., APPELLANTS.



Bilandic

The opinion of the court was delivered by: Bilandic

CHIEF JUSTICE BILANDIC delivered the opinion of the court:

This cause of action arises from the Illinois Environmental Protection Agency's issuance of a notice to plaintiff National Marine, Inc., pursuant to section 4(q) (4(q) notice) of the Environmental Protection Act (Act) (Ill. Rev. Stat. 1991, ch. 111 1/2, par. 1004(q)). The Agency's 4(q) notice informed plaintiff that it may be potentially liable for a "release or a substantial threat of a release of a hazardous substance or pesticide" on property owned by plaintiff. In response to the issuance of the 4(q) notice, plaintiff brought the instant action in the circuit court of Grundy County against the Agency and its director, Bernard P. Killian (collectively, Agency). In its first-amended complaint, plaintiff sought declaratory and injunctive relief and the issuance of a writ of certiorari.

Upon motion by the Agency, the circuit court dismissed plaintiff's complaint in its entirety. The appellate court affirmed the circuit court's dismissal of the count praying for declaratory and injunctive relief. The appellate court, however, reversed the circuit court's dismissal of the count praying for the writ of certiorari and remanded the cause for further proceedings. (232 Ill. App. 3d 847.) We granted the Agency's petition for leave to appeal (134 Ill. 2d R. 315).

The issue before this court is whether the circuit court properly dismissed plaintiff's complaint challenging the Agency's issuance of the 4(q) notice.

The undisputed facts of this case are as follows. Plaintiff is the owner of an approximately 64-acre parcel of land in Grundy County. During the summer of 1989, the Agency hired an outside consultant (Harza) to conduct a preliminary investigation of a 12-acre portion of plaintiff's property to determine if there was a release or substantial threat of release of a hazardous substance on the property. This 12-acre portion of the parcel had previously been used for bulk storage and formulation and distribution of agricultural chemicals, including liquid fertilizers. Harza collected samples from the soil and took water samples from three lagoons located on the 12-acre portion of the parcel. Testing of these samples showed high concentrations of contaminants. On February 7, 1990, the Agency inspected the 12-acre portion of plaintiff's land and found, inter alia, buried drums filled with unknown materials, buried tires and wood which had apparently been used as fill material, black-stained soil near an underground storage tank riser (a structure which indicates the existence of an underground storage tank), and an abandoned well house.

Based on these findings, the Agency determined that there was an actual or substantial threat of release of hazardous substances on plaintiff's property and, therefore, issued a 4(q) notice to plaintiff in February 1990 that so indicated. In this notice, however, the Agency inadvertently omitted the property description. In May 1990, the Agency issued a supplemental 4(q) notice to plaintiff in which the Agency amended the property description to include all of the approximately 64 acres of plaintiff's parcel.

Shortly thereafter, plaintiff filed this action challenging the Agency's issuance of the 4(q) notice. In its amended complaint, plaintiff sought: (1) a declaration that section 4(q) of the Act was unconstitutional on its face and as applied and that the Agency's action was illegal, (2) an injunction enjoining the Agency from enforcing the 4(q) notice or relying on the factual findings recited in the notice, and (3) the issuance of a writ of certiorari to review the Agency's record and reverse and quash the 4(q) notice.

In granting the Agency's motion to dismiss the complaint, the circuit court determined that plaintiff had failed to state a cause of action for which relief could be granted. The circuit court found that plaintiff's cause of action was premature and that plaintiff had failed to exhaust its administrative remedies afforded to it pursuant to the Act. In affirming the circuit court's dismissal of the count seeking declaratory and injunctive relief, the appellate court held that section 4(q) of the Act is constitutional on its face and as applied. Noting the legislative intent to expediently contain and remedy environmental pollution hazardous to Illinois citizens, the appellate court found that due process did not entitle plaintiff to a preenforcement review of the propriety of the Agency's issuance of the 4(q) notice. The appellate court reversed the circuit court's dismissal of the count seeking a writ of certiorari, however, holding that "the gross disparity between the area of alleged actual contamination and the area included in the notice presents a case appropriate for review under common law certiorari and that failure to grant such review was an abuse of the court's discretion." 232 Ill. App. 3d at 852.

Procedurally, this case is before us on the Agency's motion to dismiss plaintiff's complaint which the circuit court granted. Therefore, on review, the question before us is whether, taking all well-pleaded facts as true, plaintiff's complaint failed to state a cause of action for which relief could be granted.

In addressing this question, we note that, although seeking various and alternative forms of relief, plaintiff's complaint, in essence, sought to obtain judicial review of the Agency's issuance of the 4(q) notice prior to the Agency's initiation of cost-recovery/enforcement proceedings before the Pollution Control Board (Board) or the circuit court. For the reasons, that follow, we hold that such preenforcement review of the issuance of a 4(q) notice is not available to a 4(q) notice recipient, regardless of the form of relief sought by such parties.

Prior to addressing the question before us, it is helpful to provide some background information concerning the Environmental Protection Act (Act) itself as well as the administrative bodies created by it. The Agency derives its authority from the Act. (Ill. Rev. Stat. 1991, ch. 111 1/2, par. 1004.) The General Assembly enacted the Act to establish a unified, statewide program to restore, protect and enhance the quality of our State's environment. (Ill. Rev. Stat. 1991, ch. 111 1/2, pars. 1002(a)(ii), (b).) A primary purpose of the Act is "to assure that adverse effects upon the environment are fully considered and borne by those who cause them." (Ill. Rev. Stat. 1991, ch. 111 1/2, par. 1002(b).) The Act provides for a comprehensive scheme of, inter alia, environmental standards, regulations, permits and licensing, investigation and remedial procedures, cost-recovery and enforcement measures as well as civil and criminal penalties. (See Ill. Rev. Stat. 1991, ch. 111 1/2, par. 1001 et seq.) Underlying the Act is a legislative policy of "respond now, litigate later." The provisions of the Act call for quick, effective response action when environmental pollution has been detected. As the court stated in City of Quincy v. Carlson (1987), 163 Ill. App. 3d 1049, 1053-54:

"The legislative policy underlying the adoption of these strict measures is the protection and enhancement of the quality of the environment achieved through prompt alleviation of environmental damage which poses serious endangerment to the public health and welfare. The purpose of the Act is to quickly remove hazardous releases or the possibility of such a release with the burden of expense imposed upon the responsible party.

The potential release of hazardous waste into the environment is the very type of extraordinary or emergency situation which justifies a post-deprivation hearing. There is a strong public ...


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