ILLINOIS POLLUTION CONTROL BOARD
    May 11, 1989
    IN THE MATTER OF
    ESG WATTS,
    INC.
    )
    AC 89—38
    )
    Respondent.
    ORDER OF THE BOARD
    (By 3.
    Marlin):
    This matter comes before the Board upon
    an April
    21,
    1989
    filing of
    a Motion
    to Vacate Default Order
    and Dismiss Action by
    the Illinois Environmental Protection Agency
    (Agency).
    In its
    motion,
    the Agency states that it previously filed
    a different
    administrative citation action against Respondent for
    its
    facility
    in Mercer
    County,
    ?CB docket No.
    AC 89—63
    (Mercer
    County).
    Later,
    the Agency
    filed another administrative citation
    against Respondent
    for
    its
    facility in Rock Island County, PCB
    docket No.
    AC 89—38
    (Rock Island County)*.
    Subsequent
    to filing both actions,
    the Agency had
    a
    telephone conversation with counsel
    for Respondent
    for Rock
    Island County.
    During this conversation,
    the Agency
    inadvertantly gave counsel
    for Respondent the wrong Mercer County
    docket number,
    AC 89—63,
    instead of the correct Rock Island
    County docket number,
    AC 89—38.
    The Agency states that
    presumably,
    counsel
    for Respondent had no prior knowledge of the
    Mercer
    County action,
    AC 89—63.
    Counsel
    for Respondent used the
    incorrect Board docket number
    in his Petition for Review caption.
    Due
    to the absence of
    a Petition for Review for Rock
    Island
    County, AC 89—38,
    the Board entered
    an Order
    on April
    6,
    1989
    finding Respondent in violation upon default.
    Believing
    the Agency may have prejudiced Respondent’s case,
    the Agency
    is making
    this motion
    to request the Board
    to vacate
    the April
    6,
    1989 Default Order
    for Rock Island County,
    AC 89—38,
    and dismiss this cause.
    In addition to the facts stated
    in the Agency’s motion, the
    Board notes the following
    facts.
    Although the Petition
    for
    Review caption contained
    the incorrect Board docket number, the
    caption contained
    the correct Agency docket number
    for Rock
    Island,
    IEPA
    NO.
    9472—AC.
    The Board also notes
    that Counsel for
    Respondent mailed the Petition for Review intended
    for Rock
    Island, AC 89—38 on April
    3,
    the default date for
    AC 89—38.
    Pursuant
    to
    the mailbox rule,
    the Petition for Review was timely
    *
    The Board merely notes that AC 89—63 was not filed before AC
    89—38 because Board docketing
    is done chronologically.
    A case
    with
    a number
    38 would
    have been filed before
    a case with
    a
    number
    63.
    99—57
    —2—
    filed.
    See, Interstate Pollution Control Board, PCB 86—19,
    March
    27,
    1986 and Moore et.
    ad.
    v.
    Wayne County
    et.
    al.,
    (“Daubs I”),
    PCB 86—197,
    November
    20,
    1986.
    The law governing administrative citations is Section
    31.l(d)(l)
    of the Environmental Protection Act.
    It provides:
    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 violations as alleged
    in the
    citation and shall
    impose the penalty specified
    in
    subdivision
    (b)(4)
    of Section 42.
    Ill.
    Rev.
    Stat.
    1987,
    ch.
    111
    1/2, par. 1031.l(d)(l).
    The Board believes
    in strict adherence to this clearly
    stated mandate,
    as stated
    in In the Matter
    of ~JohnR. Vander,
    AC
    88—99, March
    9,
    1989.
    However,
    a special circumstance
    in this
    case warrants
    an exception.
    The special circumstance
    is
    that
    counsel for Respondent presumably did not know or have reason
    to
    know that the docket number given to him by the Agency was
    incorrect.
    Therefore, counsel for Respondent could not foresee
    that as
    a result of this incorrect information,
    the Board would
    find Respondent
    in violation upon default.
    Therefore,
    due
    to the special facts
    in this case,
    the
    Agency’s motion
    is granted.
    The Default Order
    entered April
    6,
    1989
    is vacated
    and this case
    is dismissed.
    However,
    the Board
    notes that dismissal
    is not the only possible course of action.
    The Board could have vacated the Default Order and construed ESG
    Watts’
    petition as timely
    filed.
    The case could have then
    proceeded
    as
    a contested administrative citation.
    IT
    IS SO ORDERED.
    I, Dorothy
    M. Gunn,
    Clerk
    of the Illinois Pollution Control
    Board~Jierebycertify th~ the above Order was adopted on the
    ___________
    day of ______________________,
    1989,
    by
    a vote
    of
    1—”
    .
    /~~J
    Dorothy ft,4unn,
    Clerk
    Illinois ~llution
    Control Board
    99—58

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