ILLINOIS POLLUTION CONTROL BOARD
December 5, 1996
IN THE MATTER OF:
)
)
PROPORTIONATE SHARE
)
R97-16
LIABILITY
)
(Rulemaking - Land)
Request for Public Comments.
ORDER OF THE BOARD (by C.A. Manning, K.M. Hennessey, and M. McFawn):
The Board on its own motion today opens a docket to solicit public comments and/or
proposals to assist in our promulgation of rules and procedures implementing the proportionate
share provisions of Section 58.9 of the Environmental Protection Act (Act) (415 ILCS 5/58.9
(1996)).
On December 21, 1995 Governor Edgar signed into law House Bill 901 as Public Act
89-443, effective July 1, 1996. This amendatory legislation added a new liability section to
Title XVII of the Act. This new liability section, Section 58.9, repealed the concept of joint
and several liability in environmental actions and replaced it with the concept of proportionate
share liability. Specifically, Section 58.9 mandated that liability for remedial action or the
recovery of costs for remedial action was limited to a “person’s proportionate degree of
responsibility for costs of the remedial action of releases of regulated substances that were
proximately caused or contributed to by 2 or more persons.” (415 ILCS 5/58.9(a)(1) (1996).)
This section further exempted from liability any person who neither caused nor contributed, in
any material respect, to the release of regulated substances. (415 ILCS 5/58.9(a)(2)(A)
(1996).)
In addition to establishing proportionate share liability in environmental actions,
Section 58.9 also directed that the Board adopt, within 18 months of the effective date of the
amendatory act, rules and procedures for determining proportionate share. Such rules are to
provide, at a minimum, “criteria for the determination of apportioned responsibility based
upon the degree to which a person directly caused or contributed to a release of regulated
substances on, in, or under the site identified and addressed in the remedial action; procedures
to establish how and when such persons may file a petition for determination of such
apportionment; and any other standards or procedures which the Board may adopt pursuant to
this Section.” (415 ILCS 5/58.10(d) (1996).)
Application of proportionate share liability in the environmental regulatory context is a
new concept in Illinois, as well as the nation. For this reason, the Board today opens a docket
to receive public comments or recommendations on the substance and structure of the
procedures needed to effectuate the proportionate share liability principles of Section 58.9. By
opening a docket for public comments, the Board is complying with the directive that, in
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developing such rules, the Board take into consideration the recommendations and proposals of
the Illinois Environmental Protection Agency (Agency), the Site Remediation Advisory
Committee, and any other interested participants. (See 415 ILCS 5/58.9(d) ( 1996).) The
Board will evaluate and consider each public comment and/or proposal received as a result of
this order in formulating our own proposal. We also note that the Agency has proposed to the
Board rules to implement the Site Remediation Program (Brownfields) and the Tiered
Approaches to Corrective Action Objectives (TACO). Because proportionate share liability is
related to these rulemakings, the Board believes that it is appropriate to begin consideration of
the rules needed to determine proportionate share in conjunction with these other rulemakings.
In developing rules and regulations implementing the new proportionate share liability
provisions of the Act, the traditional functions of the Board and the Agency must be kept in
mind. Within the framework of the Act, the General Assembly created two bodies to
implement the Act’s comprehensive, statewide pollution control provisions: the Board and the
Agency. (415 ILCS 5/4, 5 (1994); see also National Marine, Inc. v. IEPA, 159 Ill. 2d 381,
386, 639 N.E.2d 571, 573 (1994).) The Board serves both quasi-legislative and the quasi-
judicial functions. (415 ILCS 5/5 (1994); see also National Marine, 159 Ill. 2d at 386, 639
N.E.2d at 573; IEPA v. PCB, 86 Ill. 2d 390, 399, 427 N.E.2d 162, 166 (1981).) It
establishes environmental standards and regulations and also adjudicates, among other things,
enforcement matters. (City of Elgin v. County of Cook, 169 Ill. 2d 53, 60, 660 N.E.2d 875,
880 (1995).) In contrast, the Agency serves investigative, permitting and/or enforcement
functions. (415 ILCS 5/4 (1994); see also National Marine, 159 Ill. 2d at 386, 639 N.E.2d at
573).) The Agency is charged with investigating potential violations of the Act and
prosecuting, in conjunction with the Attorney General’s Office, alleged violators of the Act
before the Board (415 ILCS 5/30, 31(a) (1994)) or the circuit court. The Agency has the
burden of proving violations of the Act and liability before the Board (415 ILCS 5/32, 33
(1994)) or the circuit court. (National Marine, 159 Ill. 2d at 386, 639 N.E.2d at 573.)
Moreover, while mindful of these established roles in drafting regulations, the Board makes
clear that this statutory framework will not impede its consideration of creative approaches to
proportionate share, including incorporating such concepts as arbitration and mediation into the
rules, as long as these methods do not contravene the statutory framework of environmental
law in Illinois.
We have already begun to internally discuss and researach the rules and procedures
needed to implement the proportionate share provisions of the Act and will continue to conduct
such research during the comment period. To assist the public in preparing comments, the
Board lists below some of the general background information, as well as various models
containing allocation of liability provisions, that the Board is reviewing. This is by no means
an exhaustive list of the materials the Board has begun to review. Moreover, we are fully
aware that not all of these materials specifically discuss proportionate share liability and that
some of these materials discuss methods of allocating liability that may not be consistent with
Section 58.9 of the Act. However, the various approaches regarding allocation of liability are
instructive and may be useful in drafting the regulations needed here. The following is a
partial list of materials that the Board is reviewing:
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1. P.A. 89-443, eff. July 1, 1996;
2. 89
th
Ill. Gen. Assem, House Proceedings, November 15, 1995 at 71-79;
3. 89
th
Ill. Gen. Assem. Senate Proceedings, November 16, 1995 at 19-27;
4. The Board’s Procedural Rules, 35 Ill. Adm. Code 101-120;
5. The Uniform Comparative Fault Act (UCFA);
6. The Uniform Contribution Among Tortfeasors Act (UCATA);
7. The Restatement (Second) of Torts § 875-886B;
8. The Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA), 42 U.S.C. 9601-9629 (1994); and
9. Other states’ statutes apportioning liability, i.e., La. Rev. Stat. Ann. § 2271
et.
seq.
(1996).
The Board anticipates that we will adopt a proposal for first notice publication in the
Illinois Register
in the spring of 1997. The Board will also assign a hearing officer to this
matter. The Board will leave to its hearing officer the establishment of a rulemaking schedule,
as well as the scheduling of written comments, a pre-hearing conference, and hearings as
necessary.
Interested parties may file comments/proposals/recommendations with the Board until
4:30 p.m. on March 31, 1997. Such filings should be directed to the Clerk of the Board,
Illinois Pollution Control Board, James R. Thompson Center, 100 West Randolph, Suite 11-
500, Chicago, Illinois 60601. All comments should reference the docket number, R97-16, as
well as the name, address, and affiliation, if any, of the commentor. Any questions may be
directed to the Board’s Springfield office at (217) 524-8509.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
the above and order was adopted on the _______ day of _________________, 1996 by a vote
of _______.
______________________________
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board