ILLINOIS POLLUTION CONTROL BOARD
    June 22, 2000
    MATTESON WHP PARTNERSHIP,
    Complainant,
    v.
    JAMES W. MARTIN and EVA D. MARTIN,
    individually and d/b/a MARTIN’S OF
    MATTESON,
    Respondents.
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    PCB 97-121
    (Enforcement - RCRA, Citizens)
    DISSENTING OPINION (by M. McFawn):
    The majority orders James W. Martin and Eva D. Martin jointly to perform the
    remedial action in this case. Yet, “[i]n 1995 the Illinois General Assembly repealed joint and
    several liability in actions involving environmental remediation and replaced it with
    proportionate share liability. See Pub. Act 98-443, eff. July 1, 1996. This new proportionate
    share scheme is contained in Section 58.9 of the Environmental Protection Act (Act) 415
    ILCS 5/58.9 (1998)).” See
    In re
    Proportionate Share Liability, (December 3, 1998 (Second
    Notice)), (December 17, 1998 (Adopted Rule)), R97-16. According to that legislation, the
    Board is precluded from ordering a party to conduct remedial activity “beyond remediation of
    releases of regulated substances that may be attributed to being proximately caused by such
    person’s act or omission.” Still, the majority holds these two persons jointly and severally
    liable for the remedial action ordered in this case by ignoring these provisions of Section 58.9
    of the Act. Because that holding is contrary to the Section 58.9 of the Act, I must dissent.
    In the same 1995 legislation, the Board was charged with adopting rules and
    procedures to determine proportionate share. These rules and procedures were adopted by the
    Board at Part 741. See
    In re
    Proportionate Share Liability, (December 17, 1998), R97-16.
    The majority fails to comply with at least two of these rules governing proportionate share
    liability.
    First is the rule governing applicability. According to Section 741.105(a):
    This Part applies to proceedings before the Board in which any
    person seeks . . . to require another person to perform . . . a
    response that results from a release . . . of regulated substances .
    . . on, in, under or from a site . . . 35 Ill. Adm. Code 741.105(a).
    Thus, the Board’s own rule clearly requires that proportionate share liability apply to this case.
    A person, Matteson WHP Partnership, seeks to require James W. Martin and Eva D. Martin to
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    perform a response that results from the release of perchloroethylene on, in, under, or from the
    dry cleaners.
    Second, the Board’s rule at Section 741.210: Final Orders provides that:
    (a) Based on the evidence presented at hearing . . . the
    Board will enter a final order that determines whether a
    respondent proximately caused or contributed to a
    release . . ..
    (b) If the Board determines, under subsection (a) of this
    Section, that a respondent proximately caused or
    contributed to a release . . . the Board will in its final
    order the respondent to perform or pay for a response.
    The Board will order the respondent to perform . . . only
    to the degree to which a preponderance of the evidence
    shows that the performance . . . of the response result[s]
    from the respondent’s proximate causation of the release
    . . .. 35 Ill. Adm. Code 741.210(a) and (b).
    The majority does not find that acts or omissions by either respondent proximately
    caused or contributed to the release involved in this case. Also, the majority does not address
    the degree to which the preponderance of the evidence shows that the performance of the
    response result from either respondent’s proximate causation of the release. In so doing, the
    majority has failed to comply with the Board’s own rules governing proportionate share
    liability.
    This case is the first one before the Board requiring interpretation of proportionate
    share liability under the Act and Board rules. Furthermore, the parties did not address
    apportionment of liability for the contamination in their briefs. (The applicability of
    proportionate share liability to this case may not have been evident to them prior to the
    Board’s ruling that the respondents were not subject to RCRA permitting as alleged at count II
    of the complaint. That finding eliminates the applicability exemption from the proportionate
    share rules found at 35 Ill. Adm. Code 741.105(f)(4).) In light of these factors, I would have
    invited the parties to submit additional briefs discussing the appropriate apportionment of
    liability in this case.
    In sum, the majority failed to comply with Section 58.9 of the Act when it issued the
    remediation order in this case. Instead, the majority’s order holds James W. Martin and Eva
    D. Martin jointly and severally liable for the remedial action ordered therein. That order is
    contrary to the 1995 legislation repealing joint and several liability and replacing it with
    proportionate share liability at Section 58.9(a) and to the Board’s regulations governing
    proportionate share liability adopted at Part 741 as mandated under Section 58.9(d) of the Act.
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    For the reasons set forth herein, I respectfully dissent from today’s majority opinion.
    Board Member
    Marili McFawn
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
    the above dissenting opinion was submitted on the 29th day of June 2000.
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

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