ILLINOIS POLLUTION CONTROL BOARD
    July 10, 1997
    INGLESIDE CITGO SERVICE, INC.,
    Petitioner,
    v.
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
    Respondent.
    )
    )
    )
    )
    )
    )
    )
    )
    )
    )
    PCB 97-120
    (UST - Reimbursement)
    ORDER OF THE BOARD (by R.C. Flemal):
    On June 2, 1997, the Illinois Environmental Protection Agency (Agency) filed a
    motion (Mot.) to join a necessary party in this proceeding. On June 9, 1997, Ingleside Citgo
    Service Inc. (Ingleside) filed a motion for extension of time to file its response until June 13,
    1997. On June 18, 1997, the Board received Ingleside’s response (Res.) which had been
    mailed on June 13, 1997. The Board grants the extension of time to file the response and
    accepts the response received on June 18, 1997.
    The Agency asks that the Board find that CW3M Company (CW3M) is a necessary
    party to this action and should be joined as a co-petitioner in this proceeding. The basis for
    the Agency’s motion is that on March 24, 1995, Ingleside and Jerry W. Pitts, Jr. entered into
    an agreement which provided that CW3M would perform services in connection with a project
    to conclude remediation of the site at issue in this proceeding. Mot. at 1-2. Mr. Pitts,
    individually, and as assignor on behalf of Ingleside, entered into an “Assignment of Claims To
    Reimbursement, And Designation of Agency For Receipt of Reimbursement, From
    Underground Storage Tank Fund” (Assignment).
    1
    Mot. at 2. According to the Agency, the
    Assignment provides that Ingleside assigns to CW3M “all right, title, interest and claims for
    reimbursement from the UST Fund for costs of corrective action or indemnification as may be
    available at the time of signing the Assignment or anytime thereafter to the Assignors relative
    to the clean-up” of the site. Mot. at 2. The Agency argues that the interest assigned to
    CW3M is the right to recover reimbursement from the underground storage tank fund for
    cleanup activities at the Ingleside site.
    The Agency maintains that because Ingleside has assigned the reimbursement to
    CW3M, CW3M is a necessary party. To support this proposition, the Agency cites to Stavros
    v. Karkomi, 39 Ill.App.3d 113, 349 N.E.2d 599 (1st Dist. 1976) (Stavros). In that case the
    court held that to be a necessary party the entity must have a present substantial interest, as
    1
    The Agency provided a copy of the Assignment to the Board; however, the copies provided
    are not legible.
    2
    opposed to a mere expectancy or future contingency in the controverted matter, such that the
    legal issue cannot be resolved without affecting that interest or leaving the interest of those
    before the reviewing body in an embarrassing or inequitable position. Stavros, at 123, 607;
    Mot. at 2-3. The Agency argues that the Board’s decision will affect the reimbursement,
    therefore CW3M must be joined. The Agency also argues that since CW3M was the entity
    conducting the activities and then prepared the request for reimbursement, CW3M should be
    held “directly responsible for responding to inquiries during discovery and at hearing
    concerning how the costs were incurred.” Mot. at 3-4.
    Ingleside does not agree that CW3M is a necessary party and maintains that the Act
    does not confer standing on parties other than the owner or operator of the leaking
    underground storage tank. Res. at 4. Ingleside points to Section 57.9 of the Environmental
    Protection Act (415 ILCS 5/57.9 (1996)) (Act) which provides that the underground storage
    tank fund is accessible by “owners and operators who have a confirmed release” and who meet
    several eligibility requirements. In addition Section 57.8 of the Act provides that if the
    Agency refuses to pay or authorizes only a partial payment from the underground storage tank
    fund, the “owner or operator may petition the Board for a hearing.” 415 ILCS 5/57.8(i)
    (1996); Res. at 4.
    Ingleside maintains that the Assignment is not an attempt to amend the statutory
    language but rather the Assignment is a private contract which establishes a mechanism for
    deferral of payment of costs incurred by CW3M in performing corrective action in response to
    the release reported at the site. Res. at 4. Ingleside argues that while it appears that the
    Agency is attempting to establish the rights of third parties to reimbursement from the
    underground storage tank fund, the Act does not support such an interpretation. Res. at 4.
    Ingleside also argues that “from a policy standpoint” allowing any party who made decisions
    affecting the fund to be included as a party in the appeal “could dramatically alter the scope of
    such proceedings.” Res. at 5.
    The Board agrees that joining CW3M in this UST reimbursement is inappropriate. The
    plain language of Title XVI of the Act (415 ILCS 5/57
    et seq
    . (1996)) allows only an owner or
    operator to access the underground storage tank fund. Further, Title XVI also places
    responsibilities for clean-up, registration, and reporting on the owner or operator. The Act
    does not allow a party other than the owner or operator to access the fund. Therefore, only
    Ingleside may seek reimbursement and review of a reimbursement decision by Agency.
    Therefore, the Board denies Agency’s motion to join CW3M in this proceeding.
    3
    IT IS SO ORDERED.
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
    the above order was adopted on the 10th day of July 1997, by a vote of 6-0.
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

    Back to top