National Marine, Inc. v. Environmental Protection Agency

PRESIDING JUSTICE BARRY

delivered the opinion of the court:

Plaintiff, National Marine, Inc., appeals from judgment of the circuit court of Grundy County dismissing its first amended complaint for declaratory judgment and other relief. The suit arises out of defendant Illinois Environmental Protection Agency’s (the Agency’s) issuance of notice pursuant to section 4(q) of the Environmental Protection Act (Ill. Rev. Stat. 1991, ch. llD/a, par. 1004(q)) (the Act). The circuit court ruled that the action was premature because plaintiff had not exhausted its administrative remedies and dismissed the complaint.

The Agency’s notice to plaintiff was initially issued on February 26, 1990, and supplemented by a second, 25-page notice on May 18, 1990. The latter notice, which forms the basis for this suit, states, inter alia, that the Agency investigated plaintiff’s property, found the release or threat of release of hazardous substances which presents an immediate and significant risk of harm to human life and health and to the environment, and determined that action was necessary to prevent or mitigate such risk. Specifically, the notice states that “the Agency through a contractor investigated the site and collected samples from three lagoons and other locations on the Site,” and that testing showed certain concentrations of various volatile organic compounds, semi-volatile organic compounds, pesticides and metals. Based on this investigation, the Agency detailed 10 pages of “response action” to be taken by National Marine in anticipation of a cleanup.

Plaintiff’s first amended complaint contains, in essence, two counts for relief. The first alleges that section 4(q) is unconstitutional and that the Agency acted arbitrarily and beyond its statutory authority in issuing the section 4(q) notice because contamination was found on only 12 acres of plaintiff’s approximately 64-acre parcel and the notice relates to the entire parcel; further, that the notice issued in this case exceeded the Agency’s authority because it was in the form of a “mandate” rather than a “notice.” Plaintiff requests that the court declare the statute unconstitutional on its face and as applied, declare the Agency’s action illegal, and permanently enjoin the Agency from enforcing its notice or relying on the factual findings as recited in the notice. In the second count, plaintiff alleges the same core facts, adding only that it has no adequate remedy at law, and requests that the court proceed under the common law writ of certiorari to review the Agency’s records and reverse and quash the notice.

The statutory provisions at issue provide:

“The Agency shall have the authority to provide notice to any person who may be liable pursuant to Section 22.2(f) of this Act for a release or a substantial threat of a release of a hazardous substance or pesticide. Such notice shall include the identified response action and an opportunity for such person to perform the response action.” Ill. Rev. Stat. 1989, ch. HV-k, par. 1004(q).

“Notwithstanding any other provision or rule of law, and subject only to the defenses set forth in subsection (j) of this Section, the following persons shall be liable for all costs of removal or remedial action incurred by the State of Illinois as a result of a release or substantial threat of a release of a hazardous substance or pesticide:

(1) the owner and operator of a facility or vessel from which there is a release or substantial threat of release of a hazardous substance or pesticide.” Ill. Rev. Stat. 1989, ch. lllVz, par. 1022.2(f).

In this appeal plaintiff argues both that it was not required to exhaust administrative remedies and that the trial court abused its discretion in denying judicial review under a common law writ of certiorari.

The Agency is authorized to issue “notices” under section 4(q) of the Act. Further, any cost-recovery action or action to impose civil penalties based on the property owner’s failure to respond affirmatively to such notice would have to be initiated by the Agency before the Pollution Control Board (the Board) (Ill. Rev. Stat. 1989, ch. IIIV2, par. 1031(c)). Under the legislative scheme for the Illinois Environmental Protection Act, judicial review lies only from final orders of the Board. (Ill. Rev. Stat. 1989, ch. IIIV2, par. 1041.) Plaintiff points out, however, that where administrative action is challenged as unauthorized, exhaustion of administrative remedies is not required and the aggrieved party may proceed directly to the circuit court. Landfill, Inc. v. Pollution Control Board (1978), 74 Ill. 2d 541, 387 N.E.2d 258.

In our opinion, National Marine’s challenge to the constitutionality of the statutory scheme in the first count was adequately addressed by the court in City of Quincy v. Carlson (1987), 163 Ill. App. 3d 1049, 517 N.E.2d 33. In Carlson, as here, the Agency issued a section 4(q) notice to the plaintiff-landowner alleging potential liability for actual or threatened release of hazardous substances from an area where hazardous substances had been found. Plaintiff brought suit in the circuit court seeking declaratory judgment and injunctive relief. Plaintiff brought five counts, one claiming that the notice provision of the Act is unconstitutional on its face, and the other four counts charging improper Agency conduct. The trial court, on the Agency’s motion, ultimately granted judgment on the pleadings upholding the constitutionality of the section 4(q) notice provision and dismissed the remainder of the complaint for failure to state a cause of action. Plaintiff appealed, and the reviewing court affirmed, holding that the trial court correctly ruled that section 4(q) satisfies the requirements of due process and that declaratory judgment on the remaining counts was unavailable because no actual controversy was presented.

In Carlson, as here, the plaintiff charged that the statutory scheme, inasmuch as it does not provide the landowner with a preenforcement hearing, deprives the potentially liable landowner of property rights without due process of law. As stated in Carlson:

“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 interest in protecting the public health and environment. Accordingly, statutes which are enacted for the protection and preservation of public health are to be given extremely liberal construction for the accomplishment and maximization of their beneficial objectives. (United States v. Conservation Chemical Co. (1985), 619 F. Supp. 162.) Consequently, the lack of a preenforcement hearing does not offend due process principles.” 163 Ill. App. 3d at 1054, 517 N.E.2d at 36.

To the extent that the complaint challenges the statute on its face and as applied, the trial court in this case correctly ruled that preen-forcement judicial review was not available.

Next, National Marine argues that even though an administrative agency’s decision may not be reviewable under the Administrative Review Law (Ill. Rev. Stat. 1989, ch. 110, par. 3 — 101 et seq.), administrative action taken in issuing the notice in this case may still be reviewed in the circuit court by a petition for a common law writ of certiorari. (Smith v. Department of Public Aid (1977), 67 Ill. 2d 529, 367 N.E.2d 1286.) Defendants argue that despite National Marine’s correct statement of the law with respect to the granting of writs of certiorari generally, the relevant question is whether the Agency acted within its jurisdiction (Hartley v. Will County Board of Review (1982), 106 Ill. App. 3d 950, 436 N.E.2d 1073); and since no judicial or quasi-judicial action was taken by the Agency, the trial court correctly dismissed the petition in this case.

As stated in Hartley, the proper inquiry under a writ of certio-rari is limited to two narrow questions: whether the inferior tribunal, jurisdiction or court acted outside its jurisdiction; and whether the inferior tribunal, jurisdiction or court proceeded illegally and no other mode of direct review of the proceeding is provided. The writ is not available to determine whether the inferior tribunal, jurisdiction or court correctly determined the questions before it. 106 Ill. App. 3d at 955, 436 N.E.2d at 1076-77.

By petitioning for a common law writ of certiorari, the plaintiff seeks preenforcement judicial review that is precluded under the Act. Here, the only action taken by the Agency was the issuance of a section 4(q) notice. And, as noted above, there is no other mode of direct review of that action. As we see it, the question is whether the well-pleaded facts present a situation of such egregious overreaching that judicial intervention is warranted notwithstanding legislative preference to the contrary.

The pleadings establish that the firm hired by the Agency to investigate plaintiff’s property only sampled the soil from an area of about 12 acres. The balance of the 64-acre site, according to the pleadings, was not tested for contamination. It is on the basis of this discrepancy that National Marine attacks the authority of the Agency to issue its supplemental 4(q) notice. Specifically, National Marine alleges that: (1) the Agency’s supplemental notice included an additional 52.684 acres of plaintiff’s property without proof of any contamination; (2) the 52.684 acres were not proved to be a “facility” from which there exists a release or threat of release of hazardous substances; (3) the inclusion of the 52.684 acres within the purview of the supplemental notice is arbitrary, capricious, an abuse of discretion and contrary to the manifest weight of the evidence; and (4) the Agency is not authorized to issue notices in the form of judicial or quasi-judicial “orders.”

By alleging that the Agency has exceeded its authority, these claims arguably challenge the Agency’s “jurisdiction.” The first three allegations are premised on a finding that some 52 acres of the 64-acre site in question are not contaminated. The Agency virtually concedes the point, giving as its only reason for including the remainder of the “site” in its section 4(q) notice the fact that the 64 acres constitute a single undivided parcel now owned by National Marine.

The agency’s notice alludes to contamination primarily in three lagoons tested “within or near” a 12-acre portion of the property that had been leased to various chemical manufacturers both before and after acquisition of the 64-acre parcel by National Marine. There is no indication that the contractor hired by the Agency to investigate the property even took samples from any part of the 52 plus acres outside of the area where contamination was identified.

In our opinion, the gross disparity between the area of identified contamination and the area covered by the notice distinguishes this case from the Carlson case and justifies judicial intervention. National Marine understandably may have an interest in subdividing and transferring all or part of the approximately 52 acres that were not the subject of the Agency’s investigation. It cannot do so while title to the entire parcel is clouded by the Agency’s notice. And, at this point there is no meaningful way to estimate when the contaminated 12-acre area will be cleaned up. Thus, whether intentionally or not, the consequence of the Agency’s “mere issuance of notice” in this case was to profoundly restrict the landowner’s right to deal with some 52 acres of presumably “clean” property. Further, and contrary to the Agency’s argument, we are not convinced that the fact that National Marine has not identified a ready, willing and able purchaser for any of the property is an adequate reason to deny National Marine its day in court before final Board action has been taken in enforcement proceedings initiated by the Agency.

Under the circumstances, we hold 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 certio-rari and that failure to grant such review was an abuse of the court’s discretion.

We conclude that the circuit court of Grundy County erred in dismissing plaintiff’s claim for common law writ of certiorari. Accordingly, we reverse the order of dismissal and remand this cause for further proceedings.

Reversed and cause remanded.

McCUSKEY, J., concurs.