ILLINOIS POLLUTION CONTROL BOARD

June

3,

1976

ENVIRONMENTAL PROTECTION AGENCY,

Complainant,

v.

)

PCB 75—356

HAROLD K.

FASSETT,

HENRY W.

)

FASSETT, and J.P. WETHERBY

CONSTRUCTION CORP.,

a Delaware

)

Corporation,

Respondents.

MS. DOROTHY

3’. HOWELL, ASSISTANT ATTORNEY GENERAL, appeared

on behalf of

the Complainant.

MR. DAVID RIES and MR. TOM SHIELDS, PETER

F. FERRP~CUTI &

ASSOCIATES, LTD., appeared on behalf

of the Respondents

Harold

K. Fassett and Henry

W.

Fassett,

MR. JOSEPH E. LANUTI, ZWANZIG, LANUTI

&

MARTIN,

appeared on behalf

of Respondent,

J.P. Wetherby Construction Corporation.

ORDER OF THE BOARD

(by Mr. Dumelle):

The Respondents Fassetts and Wetherby Construction Corporation

filed separate Motions for Reconsideration

or Rehearing on April

30,

1976,

and May 4,

1976 respectively.

The Agency,

on May 19,

1976,

filed a request that the motions be denied.

Respondents allege the following mitigations:

1.

The site

is

presently

in compliance;

and 2.

The fill operation had a substan-

tial economic and social value.

The Fassetts further allege that

the penalty assessed may deprive them of their livelihood,

The fact

of present compliance has little bearing on the failure to obtain

an operating permit when the purpose of operating has already been

completed.

However, the Fassett’s good faith efforts have already

been considered

in the original Board Order.

The fact that the

Fassetts were to derive their livelihood from a business to be

constructed on the filled site does not appear in the Stipulation

presented to this Board.

Only a vague reference to the intention

of building a garage was stated.

Such reference alone

is hardly

22—15

---

—2—

an indication of a significant commercial venture.

Likewise,

no indication of financial difficulties appeared in the Stipula-

tion.

Respondents now seek to introduce evidence which should

have been brought before the Board in the first place.

No reason for a rehearing of this cause has been presented.

The Stipulation still stands and the proper remedy

is

a Motion

for Reconsideration.

However,

if the Board were to reconsider

the penalty imposed to the Fassetts it would not be on the

basis of the unsupported allegations

of the Fassett’s Motion for

Rehearing,

Verified financial documents and affidavits would he

necessary.

However, as

to the Whetherby~spenalty, the Board

finds that these allegations, even

if supported, would not

warrant reconsideration.

The Fassett’s Motion for Rehearing and the Wetherby Con-

struction Corporation Motion for Rehearing or Reconsideration

are hereby denied.

IT

IS SO ORDERED.

Mr. Zeitlin dissented

I, Christan

L. Moffett, Clerk of the Illinois Pol1utio~Control

Board, hereby certify the above Order was adopted on the

‘~‘~

day

of June,

1976 by a vote of

4..

*

Illinois Pollution

Board