Section

741.100

Purpose

741.105

Applicability

741.110

Definitions

741.115

Discovery Before an Action is Filed

741.120

Section 58.9(b) Notice

741.125

Notice to Agency

741.130

Discovery After an Action is Filed

741.135

Allocation Factors

741.140

Relief from Final Orders

741.145

Severability

COMPLAINT HAS BEEN FILED

741.200

General

741.205

Burden and Standard of Proof

741.210

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

Mediation

741.325

Settlement Through Mediation

741.330

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]

SOURCE: Adopted in R97-16 at 23 Ill. Reg. 515, effective December 22, 1998.

Section 741.100

Purpose

---

The purpose of this Part is to establish procedures under which the Board will allocate

proportionate shares of the performance or costs of a response resulting from the release or

substantial threat of a release of regulated substances or pesticides on, in, under or from 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, under or from 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,

under or from 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 or the Groundwater Protection Act:

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 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);

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 State 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.

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 share of the performance or costs of a

response based on the degree to which the performance or costs 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 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 pesticides

, 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 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

proportionate shares may file a petition with the Board for discovery for the sole

purpose of identifying persons who may have proximately caused or contributed

to a release or substantial threat of release of regulated substances or pesticides.

b)

The petition, which must be supported by affidavits, must be brought in the name

of the petitioner and must name as respondents the person or persons from whom

discovery is sought. 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 respondents;

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 requests;

4)

A statement 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);

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 30 days.

c)

The petitioner must serve a notice of filing and a copy of the petition and any

supporting documents upon the persons to whom the order is to be directed who

must be designated the respondents.

d)

Within 30 days from the date of service of the petition, the respondent may file a

response to the petition supported by affidavits 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.

e)

The petitioner may reply to the response within 7 days after the date of service of

the response.

f)

Petitioner must serve and file the petition in accordance with 35 Ill. Adm. Code

101.Subpart C, except that petitioner must initially serve the petition personally,

by registered or certified mail, or by messenger service.

g)

The Board will review the petition, response, affidavits, and any other supporting

documents on file and grant 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 by any other reasonable means.

---

The order will specify a reasonable time for compliance and the method of

compliance.

h)

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)

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

Section 58.9(b) Notice

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

. S

uch notice shall include the necessity to conduct

a

response

pursuant to Title XVII of the Act and an opportunity for the person to perform the

response. (Section 58.9(b) of the Act)

Section 741.125

Notice to Agency

A person seeking allocation of proportionate shares 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 serve 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.

Section 741.130

Discovery After an Action is Filed

a)

Within time limits set by the hearing officer, each party to a proceeding in which

allocation of proportionate shares is sought must compile any and all documents

within its 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. Sanctions for failure to comply

with procedural rules, subpoenas, or order of the Board or hearing officer will be

as set forth therein and as otherwise available under the Act.

Section 741.135

Allocation Factors

In determining proportionate shares under this Part, the Board will consider any or all factors

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 or substantial threat of a release. These

factors include the following:

a)

The volume of regulated substances or pesticides for which each person is

responsible;

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 person;

c)

The degree of each person’s involvement in any activity that proximately caused

or contributed to the release or substantial threat of a release of regulated

substances or pesticides; and

d)

Any other factors relevant to a person’s proportionate share.

Section 741.140

Relief from Final Orders

a)

On written motion by any party, 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 shares.

b)

Relief under subsection (a) of this Section may include reallocation of

proportionate shares.

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 shares.

---

d)

A motion under subsection (a) of this Section must be filed with the Board within

one year after entry of the order, except that when the response begins during 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.

e)

Any response to a motion under this Section must be filed within 30 days after the

filing of the motion.

Section 741.145

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.

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.

Section 741.205

Burden and Standard of Proof

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 a release or

substantial threat of a release of regulated substances or pesticides on, in,

under or from 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 or

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, under or

from a site is subject to all defenses allowed by law, including the defenses set

forth in Section 22.2(j) of the Act, and the limitations set forth in Section

---

58.9(a)(2) of the Act. The respondent raising a defense set forth in Section

22.2(j) or a limitation set forth in Section 58.9(a)(2) of the Act must prove the

defense or limitation by a preponderance of the evidence.

c)

A complainant is not required to plead a specific alleged percentage of liability

for the performance or costs 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.

Section 741.210

Final Orders

a)

Based on the evidence presented at hearing or in a stipulation, the Board will

enter a final order that determines whether a respondent proximately caused or

contributed to a release or substantial threat of a release.

b)

If the Board determines, under subsection (a) of this Section, that a respondent

proximately caused or contributed to a release or substantial threat of a release,

the Board will, in its final order, order respondent to perform or pay for a

response. The Board will order the respondent to perform or pay for a response

only to the degree to which a preponderance of the evidence shows that the

performance or costs of the response result from the respondent’s proximate

causation of or contribution to the 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.

Section 741.300

General

This Subpart sets forth the procedures that may 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, under or

from a site. This Subpart also includes procedures for mediation and settlements and the

requirements and standards that the Board will use to issue final orders.

Initiation of Voluntary Allocation Proceeding

a)

Participants that agree to accept 100 percent of 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, under or from a site, whether or not they stipulate

to specific shares of such liability, 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

2)

There is a written agreement with the Agency regarding the performance

of a response at the site following the issuance of a notice under Section

4(q) or Section 58.9(b) of the Act.

b)

The petition under subsection (a) of this Section must include the following

information:

1)

The location and identity of the site for which an allocation of

proportionate shares is requested;

2)

The identity of all participants;

3)

The stipulated shares of specific participants, if any;

4)

Certification that the participants agree to allocate among themselves 100

percent of the performance or costs of the response under 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 and 741.325 of this Subpart or to proceed with the

Board’s allocation proceedings under Sections 741.310 and 741.315 of

this Subpart.

c)

Upon determination that the petition contains the required information, the Board

will issue an order accepting the petition and assigning a hearing officer as

necessary.

d)

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.

e)

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. If the Agency, the State, or any person files a complaint in any forum

that involves the same release or substantial threat of a release, the Board may,

upon motion by any participant or at its discretion, stay the proceedings under this

Subpart pending the outcome of the other proceeding. The State, the Agency or

any party to the other proceeding also may appear specially to move the Board to

stay the proceedings under this Subpart.

---

Section 741.310

Allocation Proposals and Hearing Requests

a)

Within 60 days following the close of discovery, the participants must 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, an agreed allocation of proportionate

shares;

2)

A request for hearing on all allocations of proportionate shares for which

the participants have not agreed.

b)

If agreed allocations are reached for all participants, the allocated shares must

total 100 percent of the performance or costs of the response under the Remedial

Action Plan or written agreement with the Agency.

c)

If a hearing is requested as part of the joint proposal under subsection (a) of this

Section, the hearing officer will issue an order to schedule and conduct the

hearing and address any other matters as necessary. The order must require that,

at least 30 days before the date of hearing, each participant submit a pre-hearing

memorandum setting forth the proportionate share that it accepts and the issues to

be resolved at the hearing.

Section 741.315

Settlements

Nothing in this Subpart prohibits the participants from at any time entering into a settlement for

Board review if the settlement allocates among the settling participants 100 percent of the

performance or costs of the response under the Remedial Action Plan or written agreement with

the Agency.

Section 741.320

Mediation

a)

If the participants wish to engage in mediation, the participants may file a joint

notice of that intent with the Board designating a mediator whom the participants

have mutually selected.

b)

While mediation is proceeding, the time period for the allocation proposal and

hearing request under Section 741.310 of this Subpart and all discovery

proceedings under this Part and 35 Ill. Adm. Code 101 and 103 are suspended.

c)

Mediation must be completed within 120 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.

---

Section 741.325

Settlement Through Mediation

a)

If the participants reach an agreement through mediation, it must be reduced to

writing and signed by the participants. Within 14 days after execution of the

agreement, the participants must 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 must report the lack

of an agreement to the Board and file either:

1)

A joint motion to dismiss the Board action; or

2)

A joint motion to initiate or resume the Board allocation proceeding under

Sections 741.310 and 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 and

741.315 of this Subpart.

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 to each participant.

b)

The Board’s final order will allocate 100 percent of the performance or costs of

the response 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

Subpart and the proportionate shares demonstrated during the hearing do not

equal 100 percent of the performance or costs of the response, the Board’s order

will allocate 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 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.

d)

The Board may impose penalties under Section 42 of the Act if a participant fails

to comply with a Board order under this Section.