ILLINOIS POLLUTION CONTROL BOARD
February 25,
1993
COUNTY OF MADISON,
Complainant,
v.
)
AC 91—55
)
(02—91)
VERNON ABERT,
)
(Administrative Citation)
)
Respondent.
OPINION
AND
ORDER OF THE BOARD
(by J.
C. Marlin):
This matter is before the Board on motion for
reconsideration of the Board’s December 17,
1992 order in this
matter.1
The motion was filed on January 21,
1993, by the
County of Madison
(County).
On February 9,
1993, Vernon Abert
filed a response in opposition to the County’s motion.
In support of its motion, the County argues that the Board
applied an improper standard of proof to the case.
(Not.
at 1-
2.)
County states that the standard of proof to be applied is a
preponderance of the evidence and that the Board applied a
standard of clear and convincing evidence.
(Mot. at 1.)
Abert
in his response states that the County’s evidence did not reach
the. level required for the preponderance of the evidence
standard.
(Mot.
at 1.)
The Board hereby grants the County’s
motion for.reconsideration in order to address the argument
presented.
In its motion for reconsideration,
County points out the
Board in its December opinion stated,
“Given the conflicting
evidence, the Board does not find that the County has shown by
clear and convincing evidence that Abert caused open dumping
resulting in litter.”
(Mot.
at
1 citing opinion at 5—6.)
The
Board notes its unfortunate word choice in its December
17,
1992
opinion.
However, the correct standard of proof was applied in
the case.
The Board applied
a preponderance of the evidence
standard as is required by statute.
(5 ILCS l00/10_15.2
See
also,
Lefton Iron and Metal Company. Inc.
v. City of East St.
Louis
(April 12,
1990), PCB 89—53
at
3,
110 PCB 19,
21;
Bachert
1Citations to the Board’s December 17,
1992 opinion will be
opinion at_.
2This section of the
Administrative Procedure Act was
previously codified at 1991,
Ill.Rev.Stat.
ch.
127, par.
101-15.
OI39-O6~7
2
v. Village of Toledo Illinois. et. al
(November 7,
1985), PCB 85-
80 at 3,
—
PCB
—,
_;
Industrial Salvage Inc.
v. County of
Marion (August
2,
1984),
PCB 83—173,
—
PCB
—
citing Arrington
v. Water
E. Heller International Corp.
(1975)
30 Ill. App.
3d
631,
333 N.E.2d 50.)
Therefore, the Board affirms its December
17,
1992, decision and finds that Vernon Abert did not violate
sections 21(o)(5) and 21(p)(1)
of the Illinois Environmental
Protection Act.
(415 ILCS 5/21(o) (5) and
(p) (1)
.
)~
This opinion and the December 17,
1992 opinion constitute
the Board’s findings of fact and conclusions of law in this
matter.
ORDER
The Board finds that Vernon Abert did not violate sections
21(o) (5) and 21(p) (1)
of the Act.
Therefore,
this AC is
dismissed.
IT IS SO ORDERED.
R.C. Flemal dissented.
Section 41 of the Environmental Protection Act
(415 ILCS
5/41
(1992).) provides for appeal of final orders of the Board
within 35 days.
The rules of the Supreme Court of Illinois
establish filing requirements.
(But see also 35 Ill. Adm. Code
101.246, Motions for Reconsideration,
and Castenada v.Illinois
Human Rights Commission
(1989),
132 Ill. 2d 304, 547 N.E.2d 437.)
I, Dorothy M.
Gunn, Clerk of the Illinois Pollution Control
Board, hereby certif
that the above order was adopted on the
~‘?6~~
day. of
-~
,
1993,
by a vote of
/
L2~~t~2~
1~L
/~-~
Dorothy M/~unn, Clerk
Illinois ~llution
Control Board
3section 21 of the Act was amended by Public Act 87-752,
effective January 1,
1992.
As a result, the two subsections
enforceable through the administrative citation process have been
changed from 21(p) and 21(q) to 21(0)
and 21(p)
respectively.
The Board’s opinion and order reflect the current section
numbers.
The Act was previously codified at 1991,
Ill.Rev.Stat.
ch.
11.
1/2 par.
1001 et.
seq.
0139- O6I~8