ILLINOIS POLLUTION CONTROL BOARD
March 16, 1995
MONTGOMERY WARD & CO.,
)
INCORPORATED,
)
Petitioner,
)
v.
)
PCB 94—289
(UST FRD)
ILLINOIS ENVIRONMENTAL,
PROTECTION AGENCY,
)
Respondent.
ORDER OF THE BOARD (by J. Yi):
On October 11, 1994, Montgomery Ward & Co., Incorporated
(Montgomery Ward) filed by personal delivery a petition for
review of an Illinois Environmental Protection Agency (Agency)
final reimbursement determination from the Underground Storage
Tank Fund (UST). On January 11, 1995 the Board accepted this
matter for hearing.
On February 6, 1995, the Agency filed a motion to dismiss
the appeal for lack of subject matter jurisdiction. The Agency
states that Montgomery Ward, in February 1994, elected to seek
reimbursement for corrective action that was performed at its
site from October 23, 1991 through March 30, 1992 under Title XVI
of the Environmental Protection Act (Act). (415 ILCS 5/57 et.
seq. (l992).)~ (Not. at 1.) The Agency argues that “relief
under Title XVI is not available where there has been no
corrective action performed after the effective date of Title
XVI.” (Mot. at 2.) The effective date of the amendatory
language to the Act which created Title XVI was September 13,
1993. The Agency cites to two Board orders, Twomey Company v.
IEPA, (February 3, 1994), PCB 92-199 and Tolles Realty Company v.
IEPA, (March 17, 1994), PCB 93-124, to support its proposition
that the relief requested by Montgomery Ward is not available
under Title XVI. (Mot. at 2.) The Agency argues, that since the
corrective action was completed prior to the effective date of
Title XVI, the relief and remedy requested by Montgomery Ward is
not available under Title XVI and the Board lacks subject matter
jurisdiction to consider the matter. (Not. at 3.)
Montgomery Ward filed a response to the motion to dismiss on
‘The Agency motion to dismiss will be referenced as ItMot. at
2
February 14,
1995.2
Montgomery Ward states that the Agency has
inaccurately interpreted the Board’s holdings, and that Title XVI
allows for recovery of corrective action costs that have been
performed prior to its effective date. (Resp. at 1—2.)
Montgomery Ward states that the Board’s holding in Twoiney and
Tolles is that “...attorney’s fees are not recoverable under
Title XVI for releases reported prior to the effective date of
Title XVI where the tank operator has not elected to proceed
under Title XVI”. (Resp. at 1.) Montgomery Ward also states
“...when an owner/operator elects to proceed under Title XVI,
‘all costs incurred in connection with the incident prior to
notification shall be reimbursable in the same manner as was
allowable under the then existing law”. (415 ILCS 5/57.13(b)
(1992).) (Resp. at 2.) Therefore, Montgomery Ward concludes
that Title XVI allows for recovery of corrective action costs by
the law as it existed at the time the petitioner incurred those
costs. (Resp. at 3.)
DISCUSSION
A grant of a motion to dismiss for lack of subject matter
jurisdiction is appropriate when the body does not have lawful
authority to deal with the particular subject. (Echo Lake
Concerned Citizens Homeowners Association. Inc. v. Village of
Lake Zurich (1979), 68 Ill.App.3d 219, 386 N.E.2d 117.)
Therefore, the issue before the Board is whether it has the
authority to hear Montgomery Ward’s appeal of the Agency’s
reimbursement determination pursuant to Title XVI of the Act.
For the reasons stated below, we deny the Agency’s motion to
dismiss.
Title XVI of the Act was adopted by the legislature in P.A.
88-496, which the Governor signed into law on September 13,
l993.~ The particular section of the law that is in question
here is set forth at Section 57.13 of the Act. Section 57.13
states as follows:
a) If a release is reported to the proper State authority
on or after the effective date of this amendatory Act of
1993, the owner and operator shall comply with the
requirements of this Title.
b) If a release is reported to the proper State authority
2Montgomery Ward’s response to the Agency’s motion to
dismiss will be referenced as “Resp. at
“.
3See the Board’s August 1, 1994 opinion in R94-2 for a
general discussion of new law and its impacts to the existing
underground storage tank program.
3
prior to the effective date of this ainendatory Act of 1993,
the owner and operator of an underground storage tank may
elect to proceed in accordance with the requirements of this
Title by submitting a written statement to the Agency of
such election. If the owner or operator elects to proceed
under the requirements of this Title all costs incurred in
connection with the incident prior to notification shall be
reimbursable in the same manner as was allowable under the
then existing law. Completion of corrective action shall
then follow the provisions of this Title.
Section 57.13 of the Act allows for reimbursement of
corrective action costs in connection with the incident, prior to
notification of seeking reimbursement under Title XVI, in the
same manner as was allowable under the law when the corrective
action was completed. Montgomery Ward notified the Illinois
Emergency Services and Disaster Agency on October 10, 1991 and
submitted an eligibility and reimbursement application on March
30, 1992. Montgomery Ward elected to opt into Title XVI on
February 11, 1994. The Agency granted some of the corrective
action costs for which Montgomery Ward sought reimbursement in
September, 1994, and denied others that are the basis for this
appeal. The Agency has partially granted reimbursement for some
of the corrective action costs and does not argue that the
election to proceed is improper.
Election to proceed under Title XVI of the Act does not
prohibit an owner or operator from seeking reimbursement for
corrective actions that took place prior to the notification, but
specifies instead which law would apply to those actions.
Corrective action is not the sole activity governed by Title XVI.
Petitioners who have completed corrective action, for instance,
may desire to proceed under Title XVI for closure purposes at the
site and pursue relief such as a “No Further Rernediation” letter
pursuant to Section 57.10 of the Act. (415 ILCS 5/57.10 (1992).)
Thus, the fact that corrective action has been completed is not
the only factor to determine whether relief is appropriate or
desireable under Title XVI.
Finally the Agency cites to the Board’s decisions in Tolles
and Twomey for the proposition that, if corrective action did not
occur after the effective date, a petitioner may not proceed
under Title XVI. The Board’s decisions in both Tolles and Twomey
concerned petitioners who did not opt into Title XVI pursuant to
Section 57.13 of the Act and did not perform corrective action
after the effective date of Title XVI, but who nonetheless were
requesting attorney fees pursuant to Section 57.8(1) of the Act.
(415 ILCS 5/57.8(1) (1992).) Here, the record indicates
Montgomery Ward elected to proceed under Title XVI in February,
1994; it is currently not requesting attorney fees.
4
The Board denies the Agency motion to dismiss this matter.
The assigned hearing officer is directed to proceed to hearing in
this matter.
IT IS SO ORDERED.
I, Dorothy N. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the above order was adopted on the
/~!
day of 7~)~’/~
,
1995, by a vote of
7~
Dorothy
Lxi.
N. Gu
,
Clerk
Illinois Pollution Control Board