dissenting:
I express no opinion on the majority’s resolution of the underlying issues of this case, because I do not agree with the threshold conclusion that we should be considering the case at all. Although the majority’s reasoning to the contrary is not without some sympathetic appeal, I do not believe that the instant action is ripe.
The facts which I consider to be pertinent to the analysis may be stated succinctly. (1) AFI started up its operation. (2) The Illinois Environmental Protection Agency (Agency) issued AFI a “violation notice,” under section 31(a) of the Act (415 ILCS 5/31(a) (West 1994)), in which the Agency alleged that AFI was treating and storing “waste” without a permit. (3) AFI voluntarily ceased its operations. (4) AFI filed the instant declaratory judgment action in the circuit court, arguing that the materials in question were not waste and requesting that the circuit court enter an order stating that “the allegation stated in the above-described violation notice issued to [AFI] are [sic] contrary to the law.”
As the majority acknowledges, a section 31(a) violation notice carries no legal repercussions. For the Agency to have attempted to hold AFI liable for its alleged violation of law, the Agency would have had to issue AFI a notice of its intent to pursue legal action under section 31(b) (415 ILCS 5/31(b) (West 1994)) and thereafter referred the case to the Attorney General or State’s Attorney under section 31(c) (415 ILCS 5/31(c) (West 1994)). The Attorney General or State’s Attorney would have had to file a formal complaint against AFI. 415 ILCS 5/31(c) (West 1994). There would have followed a proceeding before the Pollution Control Board. Only if the Board ruled against AFI would any legal consequences have attached.
The section 31(a) notice is merely the first step in this process. It is designed to put the recipient on notice that there may be a problem, nothing more. It is not a final determination of culpability — indeed, it is not even a formal complaint. And as this court has previously stated, “[a]n agency’s preliminary, investigative action is not a final agency decision ripe for judicial review. [Citation.] Notifying a party that it is subject to an investigation which may potentially lead to the institution of an action against that party does not create a claim capable of judicial resolution.” National Marine, Inc. v. Illinois Environmental Protection Agency, 159 Ill. 2d 381, 389 (1994). Thus it would seem that AFI’s complaint in this case ought to have been dismissed. But the majority distinguishes National Marine, thus affirming the ripeness doctrine in theory, but determining that it should not forestall AFI’s suit in the instant case.
I find National Marine indistinguishable with regard to the relevant facts. In both National Marine and the instant case, the Agency issued a preliminary notice of potential liability for an environmental violation. In each case, the party to whom the notice was issued brought suit in the circuit court. Both alleged violators claimed that they were harmed by the mere issuance of the preliminary notices. But in National Marine, as here, the notice was not a final adjudication, and moreover it was “not clear whether the Agency will even initiate a cost-recovery/enforcement proceeding against plaintiff.” National Marine, 159 Ill. 2d at 390. Therefore, this court concluded that the dispute was not yet ripe because, I repeat, “[a]n agency’s preliminary, investigative action is not a final agency decision ripe for judicial review. [Citation.] Notifying a party that it is subject to an investigation which may potentially lead to the institution of an action against that party does not create a claim capable of judicial resolution.” National Marine, 159 Ill. 2d at 389.
The majority raises several points in support of its conclusion that National Marine does not guide our result in the instant case. First, the majority contends that the “concerns” mentioned in National Marine are not implicated in the present case, because “[t]he instant case does not ‘substantially delay the quick, effective response called for by the Act.’ ” 215 Ill. 2d at 235. This is because, according to the majority, there are “no allegations of any environmental contamination” in the record. Here the majority comes perilously close to assuming what AFI is trying to prove, i.e., that AFI committed no environmental contamination. It is clear, however, that the section 31(a) notice charged AFI with, inter alia, storing “waste” without a permit. The fact that AFI voluntarily ceased its shredding operations does not permit us to conclude as a matter of law that the storage of waste has wholly ceased.4 Thus, this allegation of environmental contamination might indeed be ongoing notwithstanding AFI’s voluntary cessation of operations. The majority’s speculation that the “salient hazard to the environment” consisted “only” of “the actual burning of the plastics” (215 Ill. 2d at 235) ignores the fact that the Agency charged AFI with conduct unrelated to the burning of the plastics. Indeed, the majority appears to be telling the Agency, as a matter of law, what is and is not a “salient hazard to the environment.” In my view, this is both extraordinary and unwarranted.
The majority also argues that this case is distinguishable from National Marine because
“AFI sought nothing precluding the Agency from continuing its investigation, issuing a notice under section 31(b), or referring the matter to a prosecutorial authority under section 31(c). *** Thus, the present action is not ‘preenforcement,’ as there is no allegation that AFI sought to evade Agency action, nor is there any indication that the Agency wished to refer a matter concerning a discontinued operation to a prosecutorial authority.” 215 Ill. 2d at 235-36.
See also 215 Ill. 2d at 233 (“We also note that AFI has not sought relief in this action to prevent the Agency from” issuing a section 31(b) notice or prosecuting AFI). This argument is also unconvincing. Contrary to the majority’s characterization, the instant action is clearly an attempt by AFI to evade Agency action. If not, what would be the point of their filing the declaratory judgment action? This point is underscored by the very relief AFI sought in its complaint: that the circuit court enter an order stating that “the allegation stated in the above-described violation notice issued to [AFI] are [sic] contrary to the law.” Clearly, such an order — that the allegations in the section 31(a) notice are contrary to law— would indeed preclude the Agency from attempting to prosecute AFI for the conduct alleged therein, now or ever. Indeed, as the Agency warns in its brief to this court, declaring the very allegations “contrary to law” could effectively insulate from prosecution not just AFI, but the entire industry of which AFI is a part — a possibility that this court ought not to ignore.
Finally, the majority contends that “unlike in National Marine, the Agency’s action here constituted more than a merely preliminary step prior to an eventual final Agency action.” 215 Ill. 2d at 236. I must disagree. From the Agency’s point of view, that is indeed all that it had done. The fact that AFI voluntarily ceased its operations does not somehow convert the Agency’s action from a preliminary step to a final adjudication. As the majority itself noted in the paragraph immediately preceding, the Agency had yet to “continu[e] its investigation, issu[e] a notice under section 31(b), or refer[ ] the matter to a prosecutorial authority under section 31(c).” 215 Ill. 2d at 235. The section 31(a) notice is clearly a mere preliminary step in the statutory scheme. The fact that the Agency might not ever have taken these subsequent steps does not distinguish this case from National Marine. See National Marine, 159 Ill. 2d at 390 (“it is not clear whether the Agency will even initiate a cost-recovery/enforcement proceeding against plaintiff’).
Thus, I conclude that the majority’s attempted distinctions of National Marine are without a difference as far as the legal principles involved.
Moreover, even if I agreed with the majority that National Marine was distinguishable, and analyzed the case from first principles, I still would not join its conclusion. The majority’s underlying concern is that a party who is the target of an administrative action must be allowed to have its day in court. I agree with the majority that a party must at some point be able to seek redress in the courts for any administrative action against it. However, the ripeness doctrine does not deprive a litigant of access to the courts. Rather, it controls the timing of that access so as to avoid premature litigation and to avoid unnecessary abstract disagreements and entanglement by the courts in agency proceedings. See National Marine, 159 Ill. 2d at 388, quoting Bio-Medical Laboratories, Inc. v. Trainor, 68 Ill. 2d 540, 546, 370 N.E.2d 223 (1977), quoting Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49, 18 L. Ed. 2d 681, 691, 87 S. Ct. 1507, 1515 (1967) (“ ‘The basic rationale of the ripeness doctrine *** “is to prevent the courts, through avoidance of adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties” ’ ”).
The majority is concerned that if the ripeness doctrine were invoked to preclude the instant suit it might truly operate to bar AFI from court, however, because the Agency might never take the subsequent steps necessary to institute enforcement proceedings based on the violation notice. See 215 Ill. 2d at 233. This argument is not without some intuitive force. But in the end it proves too much, as the same argument could be made by any litigant to challenge an initial notification that an agency might institute proceedings against that litigant. It is never a foregone conclusion that an agency will seek to hold an offender accountable. Thus to accept this concern as a general exception to the ripeness doctrine would swallow that rule.
The majority suggests that this case is different from most, however, because “the Agency had no incentive to refer the matter for prosecution because there was no longer a continuing violation.” 215 Ill. 2d at 233. First, as I previously noted, I do not believe that it is possible to conclude as a matter of law that there was no continuing violation, in that among the allegations in the section 31(a) notice was storage of waste without a permit. But even assuming, arguendo, that we could conclude as a matter of law there was no continuing violation, I would question the significance which the majority attaches to this fact. According to the majority’s reasoning, a party who will never have a final agency decision entered against it may utilize Illinois courts to challenge the basis of the abortive investigation against it — even though a party which is actually facing the possibility of legal action cannot. Such a result is incongruous. In addition to the question of ripeness, it is far from clear to me that a party would have standing to attack the content of a preliminary notice — which is, again, not even a formal complaint (see 415 ILCS 5/31(c) (West 2002)) — in an investigation which has gone nowhere and never will go anywhere. I believe it is unwise to allow a party to use the courts of this state to challenge allegations in the investigative process of a proceeding which will never move forward to impose liability.
Notwithstanding the above, AFI is in a somewhat sympathetic position because even though the section 31(a) notice carried no legal consequences, there were real-world implications associated with its issuance. At least some of AFI’s investors “pulled out,” as did its primary supplier. AFI subsequently made the voluntary decision to terminate operations. However, the United States Supreme Court has specifically stated that such by-products of the institution of proceedings do not obviate the ripeness doctrine.
“The impact of the initiation of judicial proceedings is often serious. Take the case of the grand jury. It returns an indictment against a man without a hearing. It does not determine his guilt; it only determines whether there is probable cause to believe he is guilty. But that determination is conclusive on the issue of probable cause. As a result the defendant can be arrested and held for trial. [Citations.] The impact of an indictment is on the reputation or liberty of a man. The same is true where a prosecutor files an information charging violations of the law. The harm to property and business can also be incalculable by the mere institution of proceedings. Yet it has never been held that the hand of government must be stayed until the courts have an opportunity to determine whether the government is justified in instituting suit in the courts. Discretion of any official may be abused. Yet it is not a requirement of due process that there be judicial inquiry before discretion can be exercised. It is sufficient, where only property rights are concerned, that there is at some stage an opportunity for a hearing and a judicial determination. * * ❖
The determination of probable cause in and of itself had no binding legal consequence ***. It took the exercise of discretion on the part of the Attorney General, as we have pointed out above, to bring it into play against appellee’s business. Judicial review of such a preliminary step in a judicial proceeding is so unique that we are not willing easily to infer that it exists.” (Emphasis added.) Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594, 598-602, 94 L. Ed. 1088, 1093-95, 70 S. Ct. 870, 872-74 (1950).
The majority notes that upon receipt of the section 31(a) notice, AFI was forced to choose between (a) getting a permit, (b) operating without a permit, or (c) shutting down.5 215 Ill. 2d at 232-33. I believe that there is no question that if AFI had chosen option (b), and were still operating its business — even if investors and its main supplier had pulled out — this court would find National Marine indistinguishable and we would rule that the instant suit was unripe. The only difference between that case and the case at bar is the majority’s guess that in this case the Agency will probably not advance the proceedings. It is certainly not impossible that the proceedings could continue in this case, however, just as there was no guarantee that they would continue in National Marine. In both cases, whether the suit would proceed would depend on the exercise of the officials’ discretion. But in the instant case, because of the majority’s prognostication about the likelihood that the officials will exercise their discretion in favor of prosecution, the doctrine of ripeness is overridden. I do not agree, and accordingly I respectfully dissent.
CHIEF JUSTICE McMORROW and JUSTICE KIL-BRIDE join in this dissent.
DISSENT ON DENIAL OF REHEARING
The majority cannot justify such a conclusion by citing to its determination on the merits that the matter in question was not “waste.” This would be equivalent to saying that the case is ripe simply because we decided the underlying issue against the agency. This would eviscerate the ripeness doctrine, as any litigant seeking to challenge any administrative agency’s initial notice could argue that they should win as a matter of law. This court would be placed in the absurd position of having to decide the merits of a case in order to determine whether the case was ripe for adjudication.
The implication that it was unfair to require AFI either to incur the expense of obtaining a permit or to “risk[ ] serious penalties by continuing and waiting for the ax of Agency prosecution to fall” (215 Ill. 2d at 233) is ameliorated by noting that even if the “ax” had indeed fallen, and the Agency had succeeded in proving that AFI had violated the permit requirement, AFI still would have had the opportunity to “show that compliance with the Board’s regulations would impose an arbitrary or unreasonable hardship.” 415 ILCS 5/31(e) (West 2002).