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

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