ILLINOIS POLLUTION CONTROL BOARD
November 12, 1998
IN THE MATTER OF:
PROPORTIONATE SHARE LIABILITY:
35 Ill. ADM. CODE 741
)
)
)
)
R97-16
(Rulemaking - Land)
Proposed Rule. Proposed Second Notice.
OPINION AND ORDER OF THE BOARD (by C.A. Manning, K.M. Hennessey, and M.
McFawn):
On December 21, 1995, Governor Jim Edgar signed into law House Bill 901 as Public Act 89-443,
effective July 1, 1996. This amendatory legislation added Section 58.9 to Title XVII of the Environmental
Protection Act (Act). This new section repealed joint and several liability in environmental actions and replaced it
with proportionate share liability. Today, the Board sends out for public comment the rules as the Board
anticipates they will appear at second notice. The Board has made several changes to the rules since first notice
and is taking this action today in order to receive comment on the changes before proceeding to second notice
under the Administrative Procedure Act (5 ILCS 100/1-1
et seq.
(1996)). By sending these rules out for public
comment today, the Board will be able to make any changes necessitated by any comments before proceeding to
second notice. In the sections that follow, the Board will provide some background for this rulemaking and a brief
summary of the more substantive changes made to the proposed rules after first-notice publication.
BACKGROUND
Before adopting a proposal for first-notice publication in this rulemaking, the Board held four public
hearings in this matter.
1
Those hearings were held on May 4, 1998, in Springfield, May 12, 1998, in Chicago, and
May 27 and June 10, 1998, in Springfield. On September 3, 1998, the Board adopted procedures for determining
proportionate share for first-notice publication. See Proportionate Share Liability (35 Ill. Adm. Code 741)
(September 3, 1998), R97-16. Following the adoption of the proposal for first notice, the Board held two more
public hearings in Springfield on October 19 and 20, 1998. The purpose of those hearings was to allow the Board
to receive testimony from interested persons on the merits of the Board’s first-notice proposal. Subsequent to
those hearings, the Board received the following public comments:
2
PC 17: First-notice Comments of the Illinois Environmental Protection Agency (Agency) (11/4/98).
PC 18: First-notice Comments of the United States Environmental Protection Agency (11/4/98).
PC 19: First-notice Comments of Karaganis & White (11/4/98).
1
References to the Agency’s proposal will be cited to as “Prop. at __.” References to the
Agency’s Statement of Reasons will be cited to as “Stat. at __.” References to the hearing
transcripts will be cited to by volume as “Tr._ at __.” References to exhibits will be cited to
by number as “Exh. __.” Finally, references to public comments will be cited to by number
as “PC _.”
2
The Board has received in total 21 public comments in this proceedings. In this opinion,
however, the Board only cites those comments received after the October hearings. For a list
of the other comments received, please refer to the Board’s first-notice opinion and order.
2
PC 20: First-notice Comments of the Illinois Attorney General’s Office (AGO) (11/4/98).
PC 21: First-notice Comments of the City of Chicago (11/4/98).
Based on the comments at the October hearings and the public comments received following the adoption
of the first-notice opinion and order, the Board has made several changes to the rules since first notice. In order to
receive public input on these changes before they are adopted for second notice, the Board is extending the first-
notice comment period and is sending the proposed rules out for public comment and review prior to adopting
them for second notice. Given the statutory timeframe governing the Board in this proceeding, the public comment
must unfortunately be limited. Despite the shortness of time, the Board believes that it is the better course of
action to have a limited pre-second notice review than none at all. Accordingly, public comments must be received
by the Clerk of the Board no later than 4:30 p.m. on November 23, 1998, to ensure that the comments will be
considered by the Board in its deliberations as to how the regulations should read at second notice. The “mailbox
rule” as set forth in 35 Ill. Adm. Code 101.102(d) does not apply to this filing. Telefax filings will be allowed.
See 35 Ill. Adm. Code 101.102(c). The Board expects to move to second notice at the Board’s December 3, 1998
meeting.
Anyone may file a public comment. If a person filing a public comment is on the service list, however,
that person must also simultaneously send a copy of the public comment to all persons on the service list. As the
service list may be updated from time to time, you should contact the hearing officer or the Clerk’s Office to
confirm that you have a copy of the current service list. All comments should reference the docket number in this
proceeding, R97-16, as well as the name, address, and affiliation, if any, of the commentor.
A copy of the Board’s opinion and order adopted today, as well as the Board’s first-notice opinion and
order, is available from the Clerk’s Office and the hearing officer. The Board’s opinions and orders are also
available from the Board’s web site at http://www.ipcb.state.il.us. Transcripts from all the hearings in this matter
are also available from the Clerk’s Office and from the Board’s web site.
As the Board and other participants have noted, proportionate share is a new concept, and it therefore
raises some difficult and complex issues. As a result, throughout the course of this proceeding, approximately
1,350 pages of testimony, questions, public comments, responses, and exhibits have been gathered. In adopting
the proposed rules for pre-second notice publication, the Board has reviewed and considered all matters of record,
including the testimony, exhibits, and public comments submitted by the Agency and other participants in this
rulemaking. The Board commends the Agency, the AGO, the Site Remediation Advisory Committee (SRAC), and
all others who participated in this proceeding. The time and thought that the participants devoted to this
rulemaking gave the Board a well-developed record upon which to resolve those issues. The Board looks forward
to the continued participation of these and other participants in this rulemaking.
In the section that follows, the Board summarizes the more substantive changes that were made to the
first-notice proposal. Those wanting to review all the changes should consult the order portion of this document
which shows all the changes made since the first notice proposal. The Board will provide a more detailed
explanation of the changes when the Board adopts the proposal for second notice. However, in order to allow for a
pre-second notice review by the participants, the Board could not provide the detailed explanation at this time.
Again, the proposed rules are how the Board anticipates they will read at second notice. Based on any comments
received on these draft rules, the Board may incorporate suggested changes into the rules before they are officially
adopted for second notice. Readers seeking an overview of the first-notice proposal should consult the first-notice
opinion and order. See Proportionate Share Liability (35 Ill. Adm. Code 741) (September 3, 1998), R97-16.
SUMMARY
Subpart A
3
Section 741.105 Applicability
At first notice, the Board declined to accept that part of the Agency’s proposal that excluded certain sites
or persons from Part 741 based on the limits contained in Section 58.1(a)(2) of Title XVII of the Act. Rather, as
the Board interpreted Section 58.9, it was not limited by the provisions of Section 58.1(a)(2). The Board’s
interpretation rested primarily on the first phrase of Section 58.9, “[n]otwithstanding any other provisions of this
Act to the contrary.” The Board found that the “notwithstanding” language was clear and that Section 58.9 should
therefore apply to all actions brought pursuant to the Act or the Groundwater Protection Act that seek a response
or response costs.
The Agency, the AGO, and the SRAC continue to maintain that Section 58.1(a)(2) limits the applicability
of Section 58.9. Based on the testimony and comments provided since first notice, the Board is persuaded that
Section 58.1(a)(2) itself is ambiguous on the question of whether it limits Section 58.9. This ambiguity requires
the Board to consider the legislative history of Title XVII, which favors the position espoused by the Agency, the
AGO, and SRAC. In addition, the Board has considered the Act as a whole, including such provisions as Section
20(a)(8), in which the General Assembly found that “it is in the interest of the People of the State of Illinois to
authorize such a hazardous waste management program and secure federal approval thereof, and thereby to avoid
the existence of duplicative, overlapping or conflicting state and federal programs.” See 415 ILCS 5/20(a)(8)
(1996); see also Tr.5 at 94-95. Accordingly, in this draft proposal, the Board finds that the limitations in Section
58.1(a)(2) do apply to Section 58.9, thereby limiting the applicability of the Section 58.9.
3
Section 741.105(f)
reflects this change.
The Board has also made some other organizational and language changes in Section 741.105.
Specifically, the Board has added a provision that the Board’s procedures rules apply, unless there is a conflict
between the procedural rules and the rules contained in Part 741. See Section 741.105(b). The Board has also
included a provision which sets forth the proceedings which Part 741 applies to. See Section 741.105(a)(1), (2).
The language is taken substantially from the statutory language of Section 58.9(a)(1) of the Act.
In the Board’s first-notice opinion and order, the Board concluded that the regulations for determining
proportionate share should apply to private enforcement actions that seek to recover costs. The Agency, the AGO,
and the SRAC continue to raise concerns regarding this issue. The Board continues to believe that the statutory
language covers private enforcement actions seeking cost recovery, and we therefore continue to include them in
these rules. See Section 741.105(a)(1). The Board nonetheless recognizes that the inclusion of private
enforcement actions seeking cost recovery presents complicated issues that cannot be fully examined in this
rulemaking. At hearing, the Board raised a potential solution to these issues by linking private cost recovery
actions to the Site Remediation Program. See Tr.5 at 30. The Board remains interested in attempting to resolve
procedural difficulties inherent in private costs recovery actions, and if any participant would like this issue to be
explored more fully in a separate docket, the Board would welcome comments on the merits of opening a separate
docket.
Section 741.110 Definitions
Because the term proportionate share is used throughout the rules, the Board has included in this draft
proposal a definition of “proportionate share.” The language of the definition is based on the statutory language of
Section 58.9. “Proportionate share,” as proposed, “means a person’s liability to perform or pay for a response that
results from a release or substantial threat of a release of regulated substances or pesticides on, in or under a site,
based on the degree to which the performance or costs of a response result from the person’s proximate causation
of or contribution to the release or substantial threat of a release.”
3
For those readers who would like a more in-depth analysis of the issues regarding
applicability, please consult the Board’s first-notice opinion and order.
4
Section 741.115 Discovery Before an Action is Filed
The Board has made several organizational changes to Section 741.115. The Board has also included
some additional limitations on a petition brought under Section 741.115 to identify persons who may have
proximately caused or contributed to a release or substantial threat of a release. These changes include: (1) the
standard that the Board will use in determining whether to grant such a petition (see Section 741.115 (g)); (2) that
the Board’s order will automatically expire within 60 days after its issuance (see Section 741.115(h)); (3) that the
petitioner must bear the reasonable expenses of providing the discovery (see Section 741.115(i)); and (4) that a
petition under Section 741.115 may not be brought to obtain information from an agency subject to the Freedom of
Information Act (5 ILCS 140 (1996)) or for information privileged under 35 Ill. Adm. Code 101 and 103 (see
Section 741.115(k)). These changes were made in response to comments from several of the participants. See
Exh. 19.
Section 741.120 Section 58.9(b) Notice
In the Board’s first-notice proposal, Section 741.120 addressed Section 58.9(b) of the Act. Specifically,
Section 741.120 in the Board’s first-notice proposal related to the requirement of Section 58.9(b) of the Act that
the Agency provide notice to a person of the need to perform a cleanup and an opportunity for the person to
perform the cleanup. Section 741.120 also had procedures for the Agency to meet with the recipient of the notice.
Because the proposed rules address only Board procedures, the Board has deleted most of Section
741.120 as it was contained in the Board’s first-notice proposal. The Board has retained that portion of the rule,
however, that repeats the requirements as set forth in the statute and continues to require that notice be provided
whenever the Agency seeks to require a person to perform a response. This provision will put the public on notice
of the statutory requirements. Of course, the Agency may adopt whatever procedures it deems necessary to
implement its responsibilities under Section 58.9.
Section 741.125 Notice to Agency
Concerns were raised regarding whether the Agency should receive notice of all actions seeking an
allocation of proportionate share. Based on the comments received, the Board has retained the provision requiring
that any person seeking an allocation of proportionate share serve a copy of the complaint or Subpart C petition on
the Agency. After receiving the notice, the Agency may choose, but is not required, to participate in the
proceeding. The Board has made clear, however, that if the Agency wishes to participate in the proceeding, it
would need to file a petition to intervene under the Board’s procedural rules. Once the petition was granted, the
Agency would then have all the rights of an original party. The provisions on intervention were added to clarify
the Agency’s role in a proportionate share proceeding.
Section 741.130 Discovery After an Action is Filed
The Board has included language, suggested by the Agency, that documents must be compiled and made
available for review that pertain to not only the release or threatened release, but also to a person’s proportionate
share. The Board has also included a provision that would protect from disclosure under this section privileged
documents.
Section 741.135 Allocation Factors
In the Board’s first-notice proposal, Section 741.135 contained provisions regarding the conduct of
hearings. However, after further reflection, the Board believes that hearings where a response or response costs
are sought will proceed like any other enforcement action. Therefore, the Board has included a provision in the
applicability section that provides that the Board’s procedural rules apply unless otherwise noted. As a result, the
5
Board has determined that a specific section on the conduct of hearings is unnecessary and has deleted it from the
proposal.
In the proposal adopted today, Section 741.135 now deals with allocation factors. The Board has made
several changes to this section based on the statutory language of Section 58.9.
Subpart B
Sections 741.205 and 741.210
In the Board’s first-notice proposal, the Board had various sections in Subpart B dealing with the
initiation of an allocation determination, proportionate share as a defense, necessary parties, pleading, proof of
liability, and settlements. As the Board viewed the procedure at that time, there would be a proceeding to
determine liability under the Act. Then, once liability under the Act had been established, a separate non-
adversarial proceeding would commence to allocate shares of the response or response costs. In order to ensure
that all the information regarding a person’s proportionate share was disclosed, the Board included procedures
regarding necessary parties, how to raise proportionate share as an affirmative defense, and how to plead
proportionate share.
Following the first-notice proposal, the Board received several comments and heard testimony
questioning the procedures set forth in the Board’s first-notice proposal. Based upon those comments, the Board
has made several changes to Subpart B. Besides a general introductory provision, the rules that the Board
proposes today for Subpart B only contain provisions on the burden and standard of proof and final orders. All
other provisions contained in Subpart B at first notice have been removed.
With Subpart B, the Board must once again look to the statutory language and meaning of Section 58.9 of
the Act. In essence, Section 58.9 places a limit on the remedies that can be obtained from a person in an action
seeking response costs or to require a response. With this in mind, the Board views a proceeding under Section
58.9 to be similar to an enforcement action, where the complainant has the burden of proving the violation of the
Act and, to some extent, the remedy it seeks. While a complainant does not have to plead a specific percentage of
liability for the performance or costs of a response, it does have to put forth sufficient evidence for the Board to
determine the degree to which the performance or costs of a response resulted from the respondent’s proximate
cause of or contribution to a release or substantial threat of a release. Accordingly, the Board has included in
Section 741.205 that the burden is on the complainant to prove by a preponderance of the evidence that the
respondent proximately caused or contributed to a release or substantial threat of a release and the degree to which
the performance or costs of a response resulted from the respondent’s proximate cause of or contribution to the
release or substantial threat of a release. The board has also included a provision in the rules that any defense
raised in the action must be proved, as usual, by the person asserting the defense.
Subpart C
Section 741.300 General
In the Board’s first-notice proposal, a Subpart C proceeding was limited to persons who sought to
allocate among themselves the entire costs of the response. The Board has made changes to Subpart C to make
clear that the participants can seek to allocate among themselves 100 percent of the performance or costs of a
response, whether or not the response has been performed.
Section 741.320 Mediation
At first notice, the Board proposed a voluntary allocation proceeding under Subpart C where the
participants could choose to engage in mediation or to proceed with the Board’s allocation procedure. The Board
6
requested comment on whether the mediation provisions would be useful. Because the Board received no
comment on the propriety of these provisions, the Board is hesitant to proceed with the procedural rules governing
the mediation proceeding at this time without comment from the participants. Accordingly, the Board has deleted
many of the procedural provisions concerning mediation at this time. The Board understands that the participants
have placed more of the focus on other subparts. However, the Board would appreciate some comment on whether
the mediation provisions should be retained or changed at second notice. If participants believe that mediation
would be useful, the Board would also appreciate comment on whether more specific mediation provisions should
be developed through a separate rulemaking.
Other Matters
The Board asked at the final hearing in this rulemaking what the various participants’ positions were on
the Board missing its statutory deadline in order to allow for further discussion of the rules. Tr.5 at 176-178.
Some of the participants supported the approach in order to examine the changes before the rules were adopted for
second notice. See PC 19; PC 20. However, because the Board intends to meet its statutory deadline, the Board
has, at this point, provided for a short time period for review prior to adopting the rules for second notice.
ORDER
The Board adopts the proposed rules set forth below for public comment. Additions from first notice are
underlined. Deletions from first notice are denoted by strike-through marks.
TITLE 35: ENVIRONMENTAL PROTECTION
SUBTITLE G: WASTE DISPOSAL
CHAPTER I: POLLUTION CONTROL BOARD
PART 741
PROPORTIONATE SHARE LIABILITY
SUBPART A: GENERAL
Section
741.100 Purpose
741.105
Applicability
741.110
Definitions
741.115
Discovery Before an Action is Filed
741.120
Resolution of Issues in Section 58.9(b) Notice
741.125
Notice to Agency
741.130
Mandatory Disclosures and
Discovery
After an Action is Filed
741.135
Conduct of Hearings
741.13
540
Allocation Factors
741.14045
Relief from Final Orders
741.14550
Severability
SUBPART B: ALLOCATION OF PROPORTIONATE SHARES DETERMINATION
WHEN A COMPLAINT
HAS BEEN FILED
741.200
General
741.205
Burden and Standard of Proof
Initiation of Allocation Determination
741.210
Final Orders
Proportionate Share Liability as a Defense
741.215
Necessary Parties
741.220
Pleading
7
741.225
Proof of Liability
741.230
Settlements
741.235 Final Orders
SUBPART C: VOLUNTARY ALLOCATION PROCEEDINGS
741.300
General
741.305
Initiation of Voluntary Allocation Proceeding
741.310
Allocation Proposals and Hearing Requests
741.315
Settlements
741.320
MediationAppointment of Mediator
741.325
Scheduling of Mediation and Mediation Conference
741.32530
Settlement Through Mediation
741.33035
Board Review and Final Orders
AUTHORITY: Implementing Section 58.9 and authorized by Section 58.9(d) of the Environmental Protection Act
[415 ILCS 5/58.9]
ADOPTED: Adopted in R97-16 at ___ Ill. Reg. _____, effective ________, 19___.
SUBPART A: GENERAL
Section 741.100
Purpose
The purpose of this Part is to define applicability and establish procedures under Section 58.9 of the Act for the
which the Board will allocat
eion
of
proportionate shares of liability to perform or pay forfor the performance or
cost of
a response resulting from the release or substantial threat of a release of regulated substances
or pesticides
on, in or under a
site
.
Section 741.105
Applicability
a)
This Part applies to proceedings before the Board in which:
1)
Any person seeks, under the Environmental Protection Act [415 ILCS 5] or the
Groundwater Protection Act
[415 ILCS 55]
, to require another person to perform, or to
recover the costs of, a response that results from a release or substantial threat of a
release of regulated substances or pesticides on, in or under a site;
or
2)
Two or more persons seek to allocate among themselves 100 percent of the performance
or costs of a response that results from a release or substantial threat of a release of
regulated substances or pesticides on, in or under a site.
b)
The Board’s procedural rules at 35 Ill. Adm. Code 101 and 103 apply to all proceedings under
this Part. However, in the event of a conflict between the rules of 35 Ill. Adm. Code 101 and
103 and this Part, this Part applies.
c)
Subpart A of this Part also applies to all proceedings under this Part. However, in the event of a
conflict between the rules of Subpart A and subsequent subparts
of this Part
, the subsequent
subpart applies.
d)
Subpart B of this Part applies when a complaint is filed with the Board that seeks, under the
Environmental Protection Act [415 ILCS 5] or the Groundwater Protection Act
[415 ILCS 55]
:
8
1)
To require any person to perform a response that results from a release or substantial
threat of a release of regulated substances or pesticides; or
2)
To recover the costs of a response that results from a release or substantial threat of a
release of regulated substances or pesticides.
e)
Subpart C of this Part applies when a petition is filed with the Board under Section 741.305 of
this Part to allocate among the participants 100 percent of the performance or costs of a response
that results from a release or substantial threat of a release of regulated substances or pesticides.
No person may file a petition under Subpart C
of this Part when a complaint has been filed in
any forum that addresses the same release or substantial threat of a release.
f)
This Part does not apply to:
1)
Any cost recovery
action brought by the
S tate under
S ection 22.2
of the Act
to recover
c osts incurred by the
S tate prior to
J uly 1, 1996
(Section 58.9(f) of the Act)
;
2)
Sites on the National Priorities List (Appendix B of 40 CFR 300);
3)
Sites where a
federal court order or
a United States Environmental Protection Agency
order requires an investigation or response
;
4)
The owner or operator of a treatment, storage or disposal site:
A)
For which a current permit has been issued or is required under federal or State
solid or hazardous waste laws; or
B)
That is subject to closure or corrective action requirements under federal or
State solid or hazardous waste laws
;
5)
The owner or operator of an underground storage tank system subject to federal or S
tate
underground storage tank laws.
g)
This Part applies to any person or site described in subsections (f)(2) through (f)(5) of this
Section to the extent allowed by federal law, federal authorization or other federal approval.
Subpart B applies whenever a complaint has been filed before the Board:
1)
Requesting that the Board allocate proportionate shares of liability for a release or
threatened release of a regulated substance; or
2)
To which proportionate share liability has been raised as an affirmative defense.
b)
Subpart C applies whenever a petition has been filed under Section 741.305 of this Part
requesting the Board to require any person to conduct a response or to seek recovery of costs and
where the participants agree to allocate among themselves the entire costs of remediation at a
site.
9
c)
This Part is not applicable to ANY COST RECOVERY ACTION BROUGHT BY
THE STATE UNDER SECTION 22.2 of the Act TO RECOVER COSTS INCURRED
BY THE STATE PRIOR TO JULY 1, 1996. (Section 58.9(f) of the Act)
Section 741.110
Definitions
Except as stated in this Section, or unless a different meaning of a word or term is clear from the context, the
definition of words or terms in this Part is the same as that applied to the same words or terms in the
Environmental Protection Act [415 ILCS 5].
“Act” means the Environmental Protection Act [415 ILCS 5].
“Agency” means the Illinois Environmental Protection Agency.
“Board” means the Pollution Control Board.
“
Person
”
means individual, trust, firm, joint stock company, joint venture, consortium,
commercial entity, corporation (including a government corporation), partnership,
association, state, municipality, commission, political subdivision of a state, or any interstate
body including the United States government and each department, agency, and
instrumentality of the United States.
(Section 58.2 of the Act)
“
Pesticide
”
means any substance or mixture of substances intended for preventing, destroying,
repelling, or mitigating any pest or any substance or mixture of substances intended for use as
a plant regulator, defoliant or desiccant.
(Section 3.71 of the Act)
“Proportionate share
”
means a person’s liability to perform or pay for a response that results
from a release or substantial threat of a release of regulated substances or pesticides on, in or
under a site, based on the degree to which the performance or costs of a response result from the
person’s proximate causation of or contribution to the release or substantial threat of a release.
“
Regulated substance
”
means any hazardous substance as defined under section 101(14) of
the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (
P.L.
96-510) and petroleum products including crude oil or any fraction thereof, natural gas,
natural gas liquids, liquefied natural gas, or synthetic gas usable for fuel (or mixtures of
natural gas and such synthetic gas).
(Section 58.2 of the Act)
“
Release
”
means any spilling, leaking, pumping, pouring, emitting, emptying, discharging,
injecting, escaping, leaching, dumping, or disposing into the environment, but excludes any
release which results in exposure to persons solely within a workplace, with respect to a claim
which such persons may assert against the employer of such persons; emissions from the
engine exhaust of a motor vehicle, rolling stock, aircraft, vessel, or pipeline pumping station
engine; release of source, byproduct, or special nuclear material from a nuclear incident, as
those terms are defined in the Atomic Energy Act of 1954, if such release is subject to
requirements with respect to financial protection established by the Nuclear Regulatory
Commission under Section 170 of such Act; and the normal application of fertilizer.
(Section
3.33 of the Act)
“
Remedial action
”
means those actions consistent with permanent remedy taken instead of or
in addition to removal actions in the event of a release or threatened release of a
regulated
substance or pesticides
into the environment, to prevent or minimize the release of
regulated
substances or pesticides
so that they do not migrate to cause substantial danger to present or
10
future public health or welfare or the environment. The term includes, but is not limited to,
such actions at the location of the release as storage, confinement, perimeter protection using
dikes, trenches or ditches, clay cover, neutralization, cleanup of released
regulated substances
or pesticides
or contaminated materials, recycling or reuse, diversion destruction, segregation
of reactive substances, dredging or excavations, repair or replacement of leaking containers,
collection of
leachate and runoff, onsite treatment or incineration, provision of alternative
water supplies, and any monitoring reasonably required to assure that such actions protect
the public health and welfare and the environment. The term includes the costs of permanent
relocation of residents and businesses and community facilities where the Governor and
Director determine that, alone or in combination with other measures, such relocation is more
cost-effective than and environmentally preferable to the transportation, storage, treatment,
destruction, or secure disposition
offsite of
regulated substances
or pesticides
,
or may
otherwise be necessary to protect the public health or welfare. The term includes
offsite
transport of regulated substances, or the storage, treatment, destruction, or secure disposition
offsite of such
regulated substances
or pesticides
or contaminated materials. Remedial action
also includes
activities associated with compliance with the provisions of Sections
58.6 and
58.7
of the Act, including, but not limited to, the conduct of site investigations, preparations of
work plans and reports, removal or treatment of contaminants, construction and maintenance of
engineered barriers, and/or implementation of institutional controls. (Sections 3.34 and 58.2 of
the Act)
“
Remove
”
or
“
removal
”
means the cleanup or removal of released
regulated substances or
pesticides
from the environment, actions as may be necessary
to take n in the event of the
threat of release of
regulated substances or pesticides
into the environment, actions as may be
necessary to monitor, assess, and evaluate the release or threat of release of
regulated
substances
or pesticides
,
the disposal of removed material, or the taking of other actions as
may be necessary to prevent, minimize, or mitigate damage to the public health or welfare of
the environment, that may otherwise result from a release or threat of release. The term
includes, in addition, without being limited to, security fencing or other measures to limit
access, provision of alternative water supplies, temporary evacuation and housing of
threatened individuals, and any emergency assistance that may be provided under the Illinois
Emergency Management Act or any other law.
(Section 3.35 of the Act)
“
Respond
”
or
“
Response
”
means remove, removal, remedy, and remedial action.
(Section
3.40 of the Act)
“
Site
”
means any single location, place, tract of land or parcel of property or portion thereof,
including contiguous property separated by a public right-of-way.
(Section 58.2 of the Act)
This term also includes, but is not limited to, all buildings and improvements present at that
location, place or tract of land.
Section 741.115 Discovery Before an Action is Filed
a)
Any person who wishes to engage in discovery before
filing an action seeking an allocation of
proportionate shares
of liability and for the sole purpose of ascertaining the identity of a person
who may be liable (at least in part) for a release or substantial threat of a release of regulated
substances
may file a petition with the Board for discovery necessary to identify persons who
may have proximately caused or contributed to a release or substantial threat of release
of
regulated substances or pesticidesfor such discovery with the Board
.
b)
The petition
, which must be supported by affidavit(s),
must be brought in the name of the
petitioner and must name as respondents the person or persons from whom discovery is sought.
11
A brief or memorandum and other supporting documents may be filed with the petition. The
petition must include:
1)
The name and address of the respondent(s);
2)
The reason the proposed discovery is necessary
, including why the petitioner could not
obtain the information sought by any other reasonable means
;
3)
A copy of the proposed discovery request(s)The nature of the discovery sought
;
4)
A statement
, supported by affidavit(s),
of the petitioner’s basis for belief that there is a
release or substantial threat of a release and that the respondent has or may have the
information sought;
5)
The petitioner’s proposed time for compliance with the order (not
less than 30 days from the date of issuance of the order);
and
6)
A request that the Board enter an order authorizing petitioner to obtain such discovery
;
and
7)
A notice informing the respondent of the opportunity to respond to the petition within
14 days
.
c)
A brief or memorandum and other supporting documents may be filed with the petition.
d)
The petition must be accompanied by an affidavit attesting that the petitioner could not obtain
the information sought by any other reasonable means.
ce
)
The petitioner mustshall
serve a notice of filing and a copy of the petition and any supporting
documents upon the person(s) to whom the order is to be directed who
mustshal
l be designated
the respondent(s).
The notice of filing must inform the respondent of the filing of the
accompanying petition and of the respondent’s opportunity to respond to the petition within 14
days after the date of service.
df
)
Within 14 days from the date of service of the petition, the respondent may file a response to the
petition supported by affidavit(s) as necessary. The respondent may file a brief or memorandum
and other supporting documents with the response. If no response is filed, the respondent is
deemed to have waived objection to the discovery sought.
eg
)
The petitioner may reply to the response within 7 days after the date of service of the response.
fh
)
Petitioner must serve and file the petitionService and filing must be
in accordance with 35 Ill.
Adm. Code 101.Subpart C, except that petitioner must initial
ly
serv
eice of
the petition must be
made personally, by registered or certified mail, or by messenger service.
gi
)
The Board will review the petition, response, affidavit(s), and any other supporting documents
on file and grant or deny the petition
if the Board finds that the requested discovery, or a portion
of the requested discovery that the Board specifies, is necessary to identify persons who may
have proximately caused or contributed to a release or a substantial threat of a release of
regulated substances or pesticides and that the information could not be obtained b
y
any other
reasonable means
. The order granting the petition will require the respondent to respond to
authorized discovery, and will limit discovery to the identification of potentially liable persons.
12
Where a deposition is authorized the order will specify the time and place of the deposition and
the name and address of each person to be examined, if known, or, if unknown, information
sufficient to identify each person.
The order will specify a reasonable time for compliance and the
method of compliance.
hj
)
Unless extended for cause
shown
, the Board’s order automatically expires 60 days after issuance.
If any respondent fails to comply with a discovery request authorized under this Section, the
petitioner may seek penalties under Section 42 of the Act.
i)
The petitioner must bear the respondent’s reasonable expenses of providing the discovery
(excluding attorney fees).
j
k
)
Nothing in this Section limits the ability of any person to obtain information in any other lawful
manner.
k
)
No petition under this Section may be brought:
1)
Against agencies subject to the Freedom of Information Act [
5 ILCS 140
]
; or
2)
For information privileged under 35 Ill. Adm. Code 101 and 103.
Section 741.120
Resolution of Issues in Section 58.9(b) Notice
a)
IN THE EVENT THE STATE OF ILLINOIS SEEKS TO REQUIRE A PERSON WHO MAY
BE LIABLE PURSUANT TO THE ACT TO CONDUCT a response FOR A RELEASE OR
THREATENED RELEASE OF A REGULATED SUBSTANCE, THE AGENCY SHALL
PROVIDE NOTICE TO SUCH PERSON. (Section 58.9(b) of the Act)
This notice may be
combined with a notice under Section 4(q) of the Act.
b)
The notice under subsection (a) of this Section must include:
1)
Identification of a basis for liability;
2)
Identification of the response to be performed; and
3)
The opportunity for the person to perform the identified response.
c)
At the time of notification pursuant to Section 58.9(b) of the Act or at any time subsequent
thereto, the Agency may offer the person to whom the notice is sent an opportunity to meet with
the Agency to resolve outstanding issues and to determine the costs of conducting the response
that are attributable to the release or substantial threat of a release that such person or any other
person caused or to which that person or any other person contributed.
d)
The meeting described in subsection (c) of this Section must be held within 30 days after receipt
of written notification of the opportunity unless the Agency agrees to a postponement.
e)
In determining the proportionate share liability allocation, the allocation factors set forth in
Section 741.140 of this Part may be considered.
Section 741.125 Notice to Agency
13
A person seeking allocation of proportionate share
s must
serve a copy of the complaint, or the petition
under
Subpart C of this Part
, on the Agency within 30 days after the filing of the complaint
or petition
. Such person
must s
erve the Agency pursuant to 35 Ill. Adm. Code 101.141. The Agency may file an application with the
Board to intervene in the proceeding under 35 Ill. Adm. Code 103.142.The person initiating a proceeding seeking
allocation shall give notice to the Agency, and the Agency may participate in any proceeding seeking allocation of
proportionate shares of liability.
Section 741.130
Mandatory Disclosures and
Discovery
After an Action is Filed
a)
Within time limits set by the Hh
earing Oo
fficer, eachall
part
yies
to a proceeding in which
allocation of proportionate shares is sought mustshall
compile any and all documents within
itstheir
possession or control pertaining to the release or threatened release
and the party’s
proportionate share and shall make the records available for review and copying by the parties.
Documents protected from disclosure under 35 Ill. Adm. Code 101 and 103 are not subject to
this Section.
b)
Discovery is governed by 35 Ill. Adm. Code 101 and 103, and all discovery devices identified in
35 Ill. Adm. Code 101 and 103 are available to all parties in a proceeding to allocate
proportionate shares of liability. Sanctions for failure to comply with procedural rules,
subpoenas, or order of the Board or Hearing Officer shall be as set forth therein and as otherwise
available under the Act.
c)
Discovery pursuant to this Section is not applicable to mediation proceedings under this Part.
Section 741.135 Conduct of Hearings
a)
In any proceeding initiated under Subpart B or C of this Part, the Board will hold a hearing on
allocation of proportionate shares of liability, unless the parties have stipulated to allocation of
all shares of liability.
b)
Unless otherwise provided, hearings will be conducted pursuant to the procedures at 35 Ill. Adm.
Code 101 and 103. Sanctions for failure to comply with procedural rules, subpoenas, or orders
of the Board or Hearing Officer are as set forth therein and as otherwise available under the Act.
c)
All parties and the Agency may present evidence relevant to allocation of proportionate shares of
liability at the hearing.
d)
If proportionate share liability is raised in an enforcement complaint or as an affirmative defense,
the hearing on proportionate share liability may be combined with the hearing on the case in
chief.
Section 741.1
3540
Allocation Factors
In determining allocations proportionate share
s
under this Part, the Board willmay
consider any or all factors
related to the cause of, or contribution to, a release or substantial threat of a release of regulated substances on, in
or under the site, related to the degree to which the performance or costs of a response result from a person’s
proximate causation of or contribution to the release o
r
substantial threat of a release. These factors include the
followingincluding but not limited to
:
a)
The volume of regulated substances or pesticides for which each liable person is responsible;
14
b)
Consistent with the provisions of 35 Ill. Adm. Code 742 and the remediation of the site in a
manner consistent with its current and reasonably foreseeable future use, the degree of risk or
hazard posed by the regulated substances
or pesticides contributed by each liable person;
c)
The degree of each liable person’s involvement in any activity that
proximately caused or
contributed to the release or substantial threat of a release of regulated substances or pesticidesat
the site
; and
d)
Any other factors relevant to a
liable person’s proportionate share
of liability
.
Section 741.1
404
5
Relief from Final Orders
a)
On written motion by any partyperson participating in an allocation proceeding
, the Board
, for
any of the reasons set forth in 35 Ill. Adm. Code 101.301(b),
may provide relief from a final
order
in which the Board allocated proportionate share
s
. entered in an allocation proceeding for
any of the following reasons:
1)
Newly discovered evidence that existed at the time of hearing and that by due diligence
could not have been timely discovered;
2)
Fraud (whether intrinsic or extrinsic), misrepresentation, or other misconduct of
a party; or
3)
Void order, such as an order based on jurisdictional defects.
b)
Relief under subsection (a) of this Section may include reallocation of
proportionate
share
s
liability
.
c)
The Board may decline to reopen an allocation determination if the motion and any supporting
materials do not demonstrate that the reopening would result in significant changes in
proportionate share
s
of liability
.
d)
A motion under subsection (a) of this Section does not affect the finality of a Board order or
suspend the operation of a Board order. The motion must be filed in the same proceeding in
which the order was entered but is not a continuation of that proceeding. The motion must be
supported by affidavit or other appropriate showing as to matters not of record. The movant
shall notify all parties or participants in the proceeding as provided by 35 Ill. Adm. Code
101.141(a).
e)
A motion under subsection (a) must be filed with the Board within one year after entry of the
order, except that when the response begins duringwhere remediation of a site has begun before
expiration of
this one-year period, a motion under subsection (a)
of this Section must be filed
with the Board within three years after entry of the order. Upon written motion, the Board may
extend either of these periods for cause shown.
ef
)
Any response to a motion under this Section must be filed within 30 days after the filing of the
motion.
Section 741.1
450
Severability
If any Section, subsection, sentence or clause of this Part is judged invalid, such adjudication does not affect the
validity of this Part as a whole or any Section, subsection, sentence or clause thereof not judged invalid.
15
SUBPART B: ALLOCATION OF PROPORTIONATE SHARE
S
DETERMINATION
WHEN
A COMPLAINT HAS BEEN FILED
Section 741.200
General
This Subpart sets forth the procedures that apply when a complaint is filed with the Board that seeks, under the
Act
or the Groundwater Protection Act
[415 ILCS 55]
, to require any person to perform a response that results
from a release or substantial threat of a release of regulated substances or pesticides
, or to recover the costs of a
response. This Subpart also sets forth the burden and standard of proof for such actions.requirements for asserting
proportionate share liability either in a complaint or as an affirmative defense to an enforcement complaint and sets
forth provisions concerning necessary parties, pleading requirements, and procedures for the filing of stipulations
and settlements.
Section 741.205
Burden and Standard of Proof
Initiation of Allocation Determination
a)
To establish a respondent’s proportionate share, the complainant must prove the following by a
preponderance of the evidence:
1)
That the respondent proximately caused or contributed to the release or substantial
threat of a release of regulated substances or pesticides on, in or under a site; and
2)
The degree to which the performance or costs of a response result from the respondent’s
proximate causation of or contribution to the release of substantial threat of a release as
established under subsection (a)(1) of this Section.
b)
Liability to perform or pay for a response that results from the release or substantial threat of a
release of regulated substances or pesticides on, in or under a site is subject to all defenses
allowed by law, including the defenses set forth in Sections 22.2(j) and 58.9(a)(2) of the Act.
The respondent raising the defense must prove the defense by a preponderance of the evidence.
c)
A complainant is not required to plead a specific alleged percentage of liability
for the performance or cost of a response in a complaint that seeks to require a
respondent to perform or pay for a response that results from a release or
substantial threat of a release of regulated substances or pesticides.
A complaint filed by the Agency, the State of Illinois, or any person to initiate an enforcement action may include a
request for allocation of proportionate shares of liability.
Section 741.210 Final Orders
Proportionate Share Liability as a Defense
a)
Based on the evidence presented at hearing or in a stipulation, the Board will enter
a final order that determines whether respondent proximately caused or
contributed to a release or a substantial threat of a release.
b)
If the Board determines, under subsection (a) of this section, that respondent
proximately caused or contributed to a release or a substantial threat of a release,
the Board may, in its final order, order respondent to pay or perform a response.
The Board may order respondent to pay or perform a response only to the degree
to which a preponderance of the evidence shows that the performance or costs of a
16
response result from respondent’s proximate causation of or contribution to a
release or substantial threat of a release. In making this decision, the Board will
consider the allocation factors of Section 741.135 of this Part.
c)
If any party fails to comply with the Board’s order under this Section, any party may seek
penalties under Section 42 of the Act. The Board may order a party that fails to comply with the
Board’s order under this Section to pay penalties under Section 42 of the Act.
a)
When a complaint seeks to compel a response or recover costs of a response, it is an affirmative
defense that the complaint seeks remediation or recovery of costs of aresponse beyond that
which may be attributed to being PROXIMATELY CAUSED BY THE RESPONDENT’S ACT
OR OMISSION OR BEYOND SUCH PERSON’S PROPORTIONATE DEGREE OF
RESPONSIBILITY FOR COSTS OF THE response of RELEASES OF REGULATED
SUBSTANCES THAT WERE PROXIMATELY CAUSED OR CONTRIBUTED TO BY 2
OR MORE PERSONS. (Section 58.1(a)(1) of the Act)
b)
A respondent asserting the affirmative defense of proportionate share liability must allege facts
establishing that two or more persons caused or contributed to a release of regulated substances.
c)
Assertion of proportionate share liability as an affirmative defense does not initiate an allocation
determination.
Section 741.215
Necessary Parties
All known parties that may have proximately caused or contributed to a release or threatened release subject to this
Part, and that can be located through a diligent search, must be made parties to any action seeking allocation of
proportionate shares of liability.
Section 741.220
Pleading
a)
A complaint seeking an allocation of proportionate shares of liability, or a defense raising
proportionate share liability, must allege facts establishing that two or more persons caused or
contributed to a release of regulated substances from a site.
b)
It is not necessary to plead a specific alleged percentage of liability of any party in order to
initiate a determination of proportionate shares of liability.
c)
If a respondent asserts proportionate share liability as a defense, a complainant may, within 30
days after service of the pleading raising the defense, amend the complaint to add a request for
allocation of proportionate shares of liability. If the complaint is so amended, the complainant
must add any additional parties required under Section 741.215 of this Part as respondents.
Section 741.225 Proof of Liability
The petitioner must prove by a preponderance of the evidence that the respondent caused or contributed to the
release or substantial threat of a release in one or more of the following ways:
a)
By act or omission that is a proximate cause of a release or a substantial threat of a release of
regulated substances.
17
b)
By act or omission that has aggravated or failed to mitigate a release or substantial threat of a
release of regulated substances such that an additional response is necessary or additional costs
of a response have been incurred.
Section 741.230 Settlements
a)
At any time, all parties may agree to assign a certain percentage of liability to a particular party.
Parties agreeing to such a settlement agree o t assume any liability beyond the agreed percentage
allocated to that party in a final Board order.
b)
At any time, any number of parties may stipulate to entry of an order allocating 100 percent of
liability for the payment of costs or performance of a response.
Section 741.235 Final Orders
a)
Based on the evidence presented at hearing or a stipulation, the Board will enter a final order
determining liability and allocating shares of liability for the payment of costs or performance of
a response for each party.
b)
If any party fails to comply with the Board’s order, any party may seek penalties under Section
42 of the Act. Penalties may be imposed under Section 42 of the Act if the party fails to comply
with a Board order.
SUBPART C: VOLUNTARY ALLOCATION PROCEEDINGS
Section 741.300
General
This Subpart sets forth the procedures that apply when two or more persons seek to allocate among themselves
100 percent of the performance or costs of a response that results from a release or substantial threat of a release of
regulated substances or pesticides on, in or under a site. circumstances under which an allocation proceeding may
be initiated by participants who agree to allocate the entire costs of a response among themselves and when no
complaint has been filed with the Board. This Subpart also includes provides procedures for mediation and
settlements and the requirements and standards
that the Board will use to issue final ordersto be used by the Board
in issuing final orders allocating proportionate shares of liability
.
Section 741.305
Initiation of Voluntary Allocation Proceeding
a)
Participants that agree to accept 100 percent of liability to perform or pay f
o
r a response that
results from a release or substantial threat of a release of regulated substances or pesticides on, in
or under a site, whether or not they stipulate to specific share
s
of such liability
,
agreeing to
accept 100 percent of liability for a release and stipulating to specific shares of liability may
initiate a voluntary allocation proceeding by filing a petition with the Board
if:.
b)
Participants agreeing to accept 100 percent of liability for a release but not stipulating to specific
shares of liability, or stipulating to less than all shares, may initiate a voluntary allocation
proceeding by filing a petition with the Board if:
1)
There is an Agency-approved Remedial Action Plan for the site under 35 Ill. Adm. Code
740; or
18
2)
There is a written agreement with the Agency
regardingwith regard to
the performance
of a responseremedial action
at the site following the issuance of a notice under Section
4(q) or Section 58.9(b) of the Act.
bc
)
The petition under subsection
s
(a) and (b) of this Section mustshall
include the following
information
, at a minimum
:
1)
The location and identity of the site for which an allocation of proportionate shares
of
liability
is requested;
2)
The identity of all participants;
3)
The stipulated shares of specific participants, if any;
4)
Certification that the participants agreehave agreed
to allocate among themselves 100
percent of the performance or costs of the response the entire cost of the response as
provided inunder
the Remedial Action Plan or written agreement with the Agency; and
5)
A statement that the participants choose to engage in
either mediation under Sections
741.320 andthrough
741.32530
of this Subpart or to proceed with the Board’s
allocation proce
edingsdure
under Sections 741.310 andthrough
741.315 of this Subpart.
cd
)
Upon determination that the petition contains the required information, the Board
willshall
issue
an order accepting the petition and assigning a
Hh
earing Oo
fficer
as necessary
.
de
)
The nature of any response agreed to as part of a Remedial Action Plan or written agreement
with the Agency cannot be contested during the allocation proceeding.
ef
)
No person may file a petition under Subpart C when a complaint has been filed in any forum that
addresses the same release or substantial threat of a release.
If a proceeding is initiated by the
Agency, the State, or any person
under Subpart B of this Partfiles a complaint in any forum
against participants to a proceeding under this Subpart
C that involv
esing
the same release or
substantial threat of a release, the Board may, upon motion by any participant
s
or at its
discretion, stay the Subpart C proceeding
s under this Subpart
pending the outcome of the
otherSubpart B
proceeding.
Section 741.310
Allocation Proposals and Hearing Requests
a)
Within 60 days following the close of discovery, the participants
mustshall
submit a joint
proposal to the Board that must include either or both of the following, as applicable:
1)
For any or all of the participants, Aa
n agreed allocation of theproportionate
shares
of
responsibility for any or all of the participants
;
2)
A requestproposal
for hearing on all allocations of proportionate share
s
for which the
participants have not agreedreached an agreed allocation
.
b)
If agreed allocations are reached for all participants, the allocated shares must total 100 percent
of the performance or costs of the response to be implemented under the Remedial Action Plan or
written agreement with the Agency.
19
c)
If a hearing is requested as part of the joint proposal
under subsection (a) of this Section
, the
Hh
earing Oo
fficer will issue an order
for the scheduling to schedule and conduct of the hearing
and address any other matters asdeemed
necessary. The order must
requireinclude a requirement
that, at least 30 days beforeprior to
the date of hearing, eachthe
participant
s
shall
submit a pre
-
hearing memorand
uma
setting forth the proportionate share that
it accept
s
for which they accept
responsibility
and the issues to be resolved at the hearing.
Section 741.315 Settlements
Nothing in this Subpart shall
prohibit
s
the participants from entering at any time into a settlement for Board
review if the settlement allocates among the settling participantsreaching agreed allocations among themselves at
any time if the agreed allocations result in
100 percent of the performance orallocation of the
costs of the response
to be implemented under the Remedial Action Plan or written agreement with the Agency
, including any agreed
allocations arising out of Section 741.310(a)(1) of this Part. Joint proposals shall be submitted to the Board for
review under Section 741.335 of this Part
.
Section 741.320
MediationAppointment of Mediator
a)
If the participants have stated in the joint petition that they wish to engage inchoose
mediation,
the participants may file a joint notice
of that intent with the Board
designating a mediator whom
the participants have mutually selected.
:
1) Designating a mediator selected mutually by the participants; or
2) Requesting a list of qualified mediators maintained by the Board.
b)
If the parties cannot agree upon a mediator within 14 days after the order accepting the case or
14 days after receipt of the Board’s list of mediators, the parties shall so notify the Board within
7 days after the expiration of that period, and the Board will appoint a mediator from the Board’s
list.
c)
The mediator must be compensated by the parties, and each party shall pay a pro rata share of the
total costs of the mediator.
bd
)
While mediation is proceeding, the time period
s
for the allocation proposal and hearing request
s
underset forth in
Section 741.310 of this Subpart
, and all discovery proceedings under this Part
and 35 Ill. Adm. Code 101 and 103
are suspended.
Section 741.325 Scheduling of Mediation and Mediation Conference
a)
The first mediation conference must be held within 30 days after the order appointing a mediator
or within 30 days after the filing of the joint stipulation.
b)
At least 10 days before the conference, the participants shall jointly present to the mediator any
stipulations of facts or issues that have been agreed to and shall individually present to the
mediator a confidential written summary of the case and statement of issues. The summary of the
case should include the facts of the release, opinions on liability, statements on costs incurred or
to be incurred, estimated costs of remediation, and any other relevant information.
c)
Within 10 days after the order appointing the mediator or the filing of the joint stipulation, the
mediator shall notify the participants in writing of the location, date and time of the mediation
conference.
20
d)
The mediator shall at all times be in control of the mediation process and the procedures to be
followed in the mediation, and may extend the time periods contained in subsections (a), (b), and
(c) above with the agreement of the participants.
e)
The mediator may meet and consult privately with either participant and his/her
representative during the mediation process.
f)
All oral or written communications in a mediation conference, other than the executed
settlement agreement, are inadmissible as evidence unless all participants agree
otherwise. Evidence with respect to alleged agreements shall be admissible in
proceedings to enforce the settlement. Subject to the foregoing, the mediator may not
disclose any information obtained during the mediation process, unless authorized by
the participants.
g)
Discovery and discovery schedules will be at the discretion of the mediator.
h)
If a participant fails to appear at a duly noticed mediation conference without good cause, the
Board upon motion will impose sanctions against the participant failing to appear.
ci
)
Mediation must be completed within 12060 days after the participants have filed notice of their
intent to mediate with the Board
. Upon written motion, the Board may extend this period for
cause shown
first mediation conference unless extended by agreement of the participant
.
Section 741.3
2530
Settlement Through Mediation
a)
If the participants reach an agreement is reached through mediation
, it must be reduced to writing
and signed by the participants
and their counsel, if any
. Within 14 days after execution of the
agreement, the participants mustshall
file a joint motion to dismiss the Board action or a motion
to accept the stipulated settlement agreement.
b)
If the participants do not reach an agreement, the participants
mustshall
report the lack of an
agreement to the Board and file either:
1)
Aa
joint motion to dismiss the Board action
,;
or
2)
Aa
joint motion to initiate or resume the Board allocation proceeding under Sections
741.310 andthrough
741.315 of this Subpart.
c)
At any time, the participants may jointly file a motion to cease the mediation and begin
or resume
the Board’s allocation proceedings under Sections 741.310
andthrough
741.315 of this Subpart.
Section 741.3
3035
Board Review and Final Orders
a)
Based on the evidence presented at hearing or in a stipulation, the Board will enter a final order
allocating a proportionate share
s of liability for the payment of costs or performance of a
response for
to each participant.
b)
The Board’s final order will allocate 100 percent of the
performance or costs of the response
action to be implemented under the Remedial Action Plan or written agreement with the Agency.
If the total of the agreed allocations under Section 741.310(a)(1) of this
SubpartPart
and the
proportionate shares allocation of shares of responsibility
demonstrated during the hearing
21
process by the remaining participants do not equal 100 percent of the performance or costs of the
response
, action to be implemented under the Remedial Action Plan or written agreement with
the Agency
, the Board’s order
will allocate
must apportion
the remaining liability for
performance or costs
among all of the participants in the same ratio as the shares that have been
agreed upon or demonstrated for each participant during the hearing.
c)
The Board’s final order will
include an order to perform or pay for the response based on the
proportionate shares determined during the proceeding.
dc
)
The Board may impose Ppenalties may be imposed under Section 42 of the Act if a
participantparty
fails to comply with a Board order
under this Section
.
IT IS SO ORDERED.
Board Member R.C. Flemal dissented.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
the above opinion and order was adopted on the 12th day of November 1998 by a vote of 6-1.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
