ILLINOIS POLLUTION CONTROL BOARD

June 23,

1994

SANGAI4ON

COUNTY,

Complainant,

V.

AC 94—12

)

(County No. SCDPH-94-AC-3)

)

(Administrative Citation)

ESG WATTS,INC.,

an Iowa Corporation,

)

Respondent.

ORDER OF THE BOARD

(by C.

A. Manning):

On May 25,

1994, the respondent, ESG Watts Inc.

(ESG)

filed

a Motion to Vacate the Default Judgment.

The Board will construe

the current motion as a motion for reconsideration of the Board’s

default order.

Prior to this filing, ESG on May 5,

1994,

filed a

motion to file petition for review instanter.

The Board denied

the motion to file instanter in its order dated May 19,

1994.

In respondent’s present motion,

it states that, although the

administrative citations were received by the respondent’s

attorney, they were not pursued due to unforeseen and unavoidable

circumstances.

Respondent also states that the petition was on

the respondent’s attorney’s legal secretary’s desk,

but she was

stricken with illness requiring urgent medical care and therefore

the petition for review was not filed.

This

argument

was the

same argument raised in the motion to file its petition for

review instanter which was denied.

In addition to this argument, respondent states that legal

counsel first became aware of the fact that the petition for

review was not filed when the legal secretary returned to work.

For these two reasons, the respondent requests the Board to grant

the motion for reconsider and vacate the default order.

On June 2,

1994 the complainant filed its response to the

motion.

Complainant states that allowing the citations to sit

unattended on a secretary’s desk for two weeks is not grounds for

vacating a default judgment, and that the secretary’s illness

does not explain respondent’s failure to file a petition between

March 14 and April 11,

1994.

In addition, complainant requests

that Kevin T. NcClain’s affidavit be stricken because it lacks a

notary

seal and signature.

However, the complainant does not

cite any authority in supporting its motion.

In ruling upon a motion for reconsideration the Board is to

consider, but is not limited to, error in the previous decision

---

2

and facts

in the record which may have been overlooked.

(35 Ill.

Adm. Code S10l.246(d).)

In Citizens Against Regional Landfill

V.

The County Board of Whiteside County

(March 11,

1993), PCB 93-

156, we stated that “the

intended purpose of a motion for

reconsideration is to bring to the court’s attention newly

discovered evidence which was not available at the time of the

hearing, changes in the law or errors in the court’s previous

application of the existing law”.

(Korociluvan v. Chicago Title

&

Trust

Co.

(1st Dist.

1992),

213 Ill. App.3d 622,

572 N.E.2d 1154,

1158).

The administrative citation process is a creature of statute

which has built-in time constraints for the complainant, the

respondent and this Board.

Section 31. 1(d) (1)

states:

If the person named in the administrative citation

fails to petition the Board for review within 35 days

from the date of service, the Board shall adopt a final

order, which shall include the administrative citation

and findings of violation as alleged in the citation,

and shall impose the penalty specified in subdivision

(b)(4)

of Section 42.

Sangamon County served the administrative citation on ESG

March 11,

1994 and March 14,

1994.

Having received no timely

filed petition for review, the Board entered its default order on

May 5,

1994 pursuant to Section 31.1(d) (1) of the Act.

(415 ILCS

5/31.1(d) (1)

(1992).)

The courts have clearly held that “an administrative agency

is a creature of statute, any power or authority claimed by it

must find its source within the provisions of the statute by

which it is created.”

(Bio—Medical Laboratories,

Inc. v.

Trainor, (1977),

370 N.E. 2d 223.)

The statute creating the

Board’s authority to find violation through the administrative

citation process, quite clearly states that the Board shall find

a violation if the person named in the administrative citation

does not file a petition for review within 35 days of service of

the administrative citation.

In this matter the 35 days had run

and by operation of law respondent was found in violation.

Nothing in respondents motion explains why no action was

taken between March 11,

1994 and March 14,

1994 when respondent

was served with the administrative citation and April 11,

1994

when the secretary became ill or why the respondent’s attorney

first became aware of the failure to file the petition only after

the secretary returned.

Respondent argues that the illness of

its attorney’s legal secretary and its attorney not becoming

aware of the failure to file the petition for review until the

return of the secretary are reasons to grant the motion for

reconsideration and vacate the Board’s default order.

Respondent

has not presented the Board with sufficient reason to reconsider

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3

its default order.

The motion for reconsideration is denied.

Having denied the motion for reconsideration on the above grounds

the Board has no need to rule on the County’s request to strike

Mr. McClain’s affidavit.

IT IS SO

ORDERED.

Sectic.n 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.

(See also 35 Ill.

Adm. Code

101.246, Motion for Reconsideration).

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control

Board, hereby certi

that the above order was adopted on the

2~-~-~~’day

of

,

1994,

by a vote of

~

-o

Dorothy M.4unn,

Clerk

Illinois ~1lution

Control Board