dissenting:
I respectfully dissent. I agree with the majority’s discussion of the facts, and I agree with their review of City of Quincy v. Carlson (1987), 163 Ill. App. 3d 1049, 517 N.E.2d 33, finding the Environmental Protection Act constitutional. I depart from the majority opinion on the availability of the common law writ of certiorari to attack the notice issued by the Illinois Environmental Protection Agency.
The majority opinion frames the issue as “whether the well-pleaded facts present a situation of such egregious overreaching that judicial intervention is warranted notwithstanding legislative preference to the contrary.” (232 Ill. App. 3d at 851.) I do not find support for the existence of such a test to determine the availability of a writ of certiorari and believe that the decided cases limit the availability of the writ to those instances in which the petitioner is without an avenue for review from an action by a tribunal exercising judicial or quasi-judicial functions. (Stratton v. Wenona Community Unit District No. 1 (1990), 133 Ill. 2d 413, 551 N.E.2d 640.) The legislative scheme specifically provides for administrative review from final determinations, and I would hold that this writ is not available to test the adequacy of the notice.
The Agency was created by the Environmental Protection Act to perform technical, licensing and enforcement functions. It is the Agency’s duty to investigate violations of the Act. (Ill. Rev. Stat. 1991, ch. IIIV2, pars. 1004(e), 1030.) Here, the Agency investigated National Marine’s property and found the release or substantial threat of release of hazardous substances. Accordingly, the Agency issued a section 4(q) notice to National Marine. (Ill. Rev. Stat. 1991, ch. IIIV2, par. 1004(q).) Pursuant to this section, the notice included the identified response action and an opportunity for National Marine to perform the response action.
This notice, in and of itself, does not cause any legal detriment to the notified party. The party is, in fact, free to ignore the notice. (City of Quincy, 163 Ill. App. 3d at 1053, 517 N.E.2d at 35.) If that happens, the Agency is authorized to proceed with cleanup operations on its own. Ill. Rev. Stat. 1991, ch. HV-k, par. 1004(s).
The Agency can then institute a cost-recovery action against the allegedly responsible parties. (Ill. Rev. Stat. 1991, ch. HV-k, par. 1022.2(i).) The Pollution Control Board will hold a de novo hearing at which the Agency bears the burden of proving that the respondent caused the violation. Ill. Rev. Stat. 1991, ch. lll1^, pars. 1031,1032.
The Board was created by the Act to perform both quasi-legislative and quasi-judicial functions. If the Board finds the party liable and if it also finds that the party failed “without sufficient cause” to provide remedial action in accordance with the Agency’s notice, the Board may impose punitive damages in addition to actual damages. (Ill. Rev. Stat. 1991, ch. IIIV2, par. 1022.2(k).) This provision is intended to further the legislature’s desire for prompt alleviation of pollution without formal hearings by giving the responsible party a strong incentive to act. The Board’s final decision may be appealed to this court. Ill. Rev. Stat. 1991, ch. lll1^, par. 1041.
National Marine sought review of the notice by filing a writ of cer-tiorari action in the circuit court. The common law writ of certiorari was developed to provide a means whereby a petitioner who was without an avenue of appeal for direct review could obtain limited review over an action by a tribunal exercising judicial or quasi-judicial functions. (Stratton, 133 Ill. 2d at 427, 551 N.E.2d at 645.) This writ has an extremely limited application. (Hartley v. Will County Board of Review (1982), 106 Ill. App. 3d 950, 954, 436 N.E.2d 1073, 1076.) The absence of other adequate remedies for direct review is an essential precondition to review by common law certiorari. (Hartley, 106 Ill. App. 3d at 956, 436 N.E.2d at 1078.) The writ will not issue where another adequate remedy is available. (First National Bank & Trust Co. v. Rosewell (1982), 93 Ill. 2d 388, 396, 444 N.E.2d 126, 130.) If a writ is granted, the proper inquiry is limited to the narrow questions of whether the inferior court or tribunal acted within its jurisdiction and proceeded by the applicable procedural rules. (Hartley, 106 Ill. App. 3d at 954, 436 N.E.2d at 1076-77.) The granting or denial of a writ of certiorari lies within the broad discretion of the trial court. Stratton, 133 Ill. 2d at 428, 551 N.E.2d at 646.
Where the Administrative Review Law has been made applicable to an agency, it acts as the sole method of review, to the exclusion of any other statutory, equitable, or common law mode of review of decisions of administrative agencies. (Ill. Rev. Stat. 1991, ch. 110, par. 3 — 102.) Admittedly, the Administrative Review Law does not apply to all actions of the Agency. (National Marine Service Inc. v. Environmental Protection Agency (1983), 120 Ill. App. 3d 198, 208, 458 N.E.2d 551, 557.) Nor does the Environmental Protection Act expressly adopt the Administrative Review Law to review the issuing of a section 4(q) notice. (Ill. Rev. Stat. 1991, ch. lll1^, par. 1041.) But that is simply because this action by the Agency is not any form of quasi-judicial action which would cause a legal detriment to National Marine.
The Agency argues that this notice does not constitute judicial or quasi-judicial action and therefore the question of whether it exceeded its jurisdiction should not be reached. National Marine argues that the language and form of the notice cause it to become a “final order.”
The supreme court has said that the finality of an order is not necessarily determined by its form. (Wilkey v. Illinois Racing Board (1983), 96 Ill. 2d 245, 449 N.E.2d 843.) Instead, the ultimate question is “ ‘whether the judgment fully and finally disposes of the rights of the parties to the cause so that no material controverted issue remains to be determined.’ [Citation.]” Wilkey, 96 Ill. 2d at 249, 449 N.E.2d at 844.
The notice does not dispose of the issues. It is merely a precursor to the filing of a complaint, which would then be followed by a de novo hearing. No matter what form or language the notice used, it is clear that it does not in any way bind National Marine. The Agency would still have to plead and prove all the necessary facts before the Board in order to hold National Marine liable. Then, and only then, would National Marine have suffered a legal detriment. And any final decision of the Board would be appealable.
National Marine still has adequate avenues of review available to it. It can ignore the notice and wait for the Agency to institute a cost-recovery action, or it can attempt to settle the dispute. The Act specifically authorizes the Agency to negotiate and attempt a settlement prior to the filing of a formal complaint. (Ill. Rev. Stat. 1991, ch. IIIV2, par. 1031(d).) Indeed, the Act expresses a preference for settling without a formal hearing. Ill. Rev. Stat. 1991, ch. IIIV2, par. 1022.2a.
Even if this notice is held to constitute quasi-judicial action, National Marine must still show that the Agency was without jurisdiction to issue this notice. National Marine argues that the inclusion of the 52.684 acres as part of the facility affects the Agency’s jurisdiction.
The Act does not require the Agency to limit its notice to the exact area where the hazardous substance was found. Rather, the legislature has given the term “facility” a broad meaning. Ill. Rev. Stat. 1991, ch. IIIV2, par. 1022.2(hXl).
The size of the “facility,” like the level of contamination and other such issues, is properly viewed as a question that goes to the merits of the action which should be decided by the Board. It is undisputed that the merits of an Agency action are not properly before the court prior to a cost-recovery action. (City of Quincy, 163 Ill. App. 3d at 1056, 517 N.E.2d at 37.) Moreover, it is equally well established that a writ of cer-tiorari is not available to determine whether the inferior tribunal correctly determined the questions before it. Hartley, 106 Ill. App. 3d at 955, 436 N.E.2d at 1077.
Whether the Agency properly included the additional acreage is not a decision which can be reviewed by writ of certiorari. Simply because the decision of the Agency may ultimately be found to be wrong after a hearing before the Board does not mean that the Agency was without jurisdiction to make that decision.
The legislature has expressly precluded any preenforcement hearing in favor of an “act first and litigate later” approach. (City of Quincy, 163 Ill. App. 3d at 1053-54, 517 N.E.2d at 35-36.) Given the threat to public health that arises from a violation of the Act, both Federal and State courts have repeatedly refused to handcuff the Agency by delaying effective responses. (See, e.g., City of Quincy, 163 Ill. App. 3d at 1054, 517 N.E.2d at 36 (and cases cited therein).) As the court stated in City of Quincy:
“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.” 163 Ill. App. 3d at 1053, 517 N.E.2d at 35.
It is not unreasonable to assume that the earlier action is taken, the lesser the likelihood of widespread contamination and damage. Preen-forcement judicial review would hamper this process at great cost to the environment and to public safety. Where great public detriment or inconvenience is likely to result from interfering with the proceeding of the inferior tribunal, the writ of certiorari should not issue. (Connolly v. Upham (1950), 340 Ill. App. 387, 92 N.E.2d 207.) Allowing preenforcement judicial review in pollution cases could delay cleanup by months or even years.
In addition, National Marine has not suffered a substantial injury or injustice so as to merit equitable relief. (Stratton, 133 Ill. 2d at 428, 551 N.E.2d at 646.) It alleges that it has had difficulty selling the 52 acres while the title is clouded by the Agency’s notice. National Marine, however, admits that it could sell the land but that now it would have to comply with the Responsible Property Transfer Act of 1988 (Ill. Rev. Stat. 1991, ch. 30, par. 901 et seq.). National Marine therefore does not claim that it cannot sell the parcel; it merely claims that the value has substantially decreased. National Marine’s being inconvenienced by having difficulty selling its land cannot override the public’s interest in prompt cleanup of hazardous materials. This interest would be thwarted by allowing preenforcement judicial review by way of a writ of certio-rari.
Courts have allowed the use of a writ of certiorari to review decisions of the Agency only in extremely limited situations. In National Marine Service Inc. v. Environmental Protection Agency (1983), 120 Ill. App. 3d 198, 458 N.E.2d 551, for example, the Agency denied a requested certification pursuant to its authority under section 4(m) of the Act. (Ill. Rev. Stat. 1981, ch. IIIV2, par. 1004(m).) The fourth district noted that the Act specifically adopted the Administrative Review Law and gave the Board the authority to review the denials of certain enumerated permits. However, the Board was not expressly granted authority to review denials of this type. Furthermore, the appeals allowed under the Administrative Review Law were limited to ones taken from a Board decision or from the denial of a permit. Because the petitioner did not fall into any of those categories, it was left without an avenue of review. It had clearly suffered an injury because without the certification, it could not acquire certain permits. The petitioner was not required to exhaust its administrative remedies because there simply were no remedies available. Therefore, the court allowed the writ to issue.
Here, the facts are much different. National Marine has suffered no recognizable injury. Further, there still is an adequate avenue of review available to it. Before National Marine can be made to pay any money, the Agency must prove its case before the Board. This would include proving that these 64 plus acres constituted a “facility.” Moreover, present in this case is the fact that there is a great public interest in immediate cleanup of the hazardous waste, a factor not presented to the fourth district.
To allow a writ of certiorari in a situation such as this would open a virtual Pandora’s box of litigation. Each time the Agency issues a notice, the allegedly responsible party could petition for preenforcement judicial review by means of a writ of certiorari. The parties could challenge any one of a number of determinations made by the Agency, e.g., size of the facility, level of pollution, etc. The result would be a greatly reduced speed in alleviating pollution and a greatly increased court docket.
The issuing of a section 4(q) notice is not an unreviewable action; it can be reviewed by the Board at a cost-recovery action and then by this court by way of administrative review.
The Agency has the authority to investigate possible violations of the Act. It also has the power and the duty to issue section 4(q) notices and to prosecute offenders before the Board. It is not disputed that the Agency has the authority to issue a notice. All that is disputed is the inclusion of the 52 plus acres in this notice. This is a factual question best left to the Agency. It is better equipped than the courts to investigate and to make that determination. The Agency is empowered to make such investigatorial and prosecutorial decisions. If its decision is erroneous, it can be corrected by the Board or by this court by way of administrative review. The trial court did not abuse its discretion in holding that the writ of certiorari should not issue.
For the foregoing reasons, I respectfully dissent.