ILLINOIS POLLUTION CONTROL BOARD
    December 5, 1996
    PEOPLE OF THE STATE OF ILLINOIS,
    Complainant,
    v.
    MICHEL GRAIN COMPANY, INC., d/b/a
    MICHEL GRAIN FERTILIZER, an Illinois
    corporation, and CARYLE MICHEL,
    Respondents.
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    PCB 96-143
    (Enforcement - Water)
    ORDER OF THE BOARD (by C.A. Manning):
    This matter comes before the Board on a motion to reconsider and clarify filed
    by respondents, Michel Grain Company, Inc., d/b/a Michel Grain Fertilizer (Michael
    Grain, Inc.) and Mr. Caryle Michel (Michel) on September 3, 1996.
    1
    On August 1,
    1996 the Board denied the motion to dismiss as to both party respondents, Michel and
    Michel Grain, Inc. The Board also denied the motion to strike the amended complaint
    and allowed respondents to file an answer to the amended complaint on or before
    September 3, 1996.
    In ruling upon a motion for reconsideration the Board is to consider, but is not
    limited to, error in the previous decision and facts in the record which may have been
    overlooked. (35 Ill. Adm. Code 101.246(d).) In
     
    Citizens Against Regional Landfill v.
    The County Board of Whiteside County (March 11, 1993), PCB 93-156, we stated that
    “[t]he 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.”
    (Korogluyan v. Chicago Title & Trust Co. 213 Ill. App.3d 622, 572 N.E.2d 1154 (1st
    Dist. 1992).)
    Respondents reiterate in their motion to reconsider that the complaint remains
    insufficient because it does not establish violations of Sections 12(a) and (d) of the
    Environmental Protection Act (Act) (415 ILCS 5/12(a)(d)), and associated regulations.
    Respondents argue that Illinois is a fact-pleading state which requires ultimate facts
    necessary to support the action alleged in the complaint. Respondents also argue that
    Section 22.2(f) of the Act requires that the State must have incurred costs of removal
    before bringing a claim for cost recovery. Respondents further argue that a 4(q) notice
    1
    No response was filed in this matter by complainant.
    2
    (415 ILCS 5/4(q)) should have been provided to respondents advising them of their
    potential liability under Section 22.2(f) of the Act.
    The Board denies the motion to reconsider and further clarifies its order as
    follows. Illinois is a fact-pleading state which requires the pleader to set out ultimate
    facts which support his cause of action. (LaSalle National Trust N.A. v. Village of
    Mettawa, 249 Ill. App. 3d 550, 557, 616 N.E.2d 1297 (2d Dist. 1993).) Despite the
    requirement of fact pleading, courts are to construe pleadings liberally to do substantial
    justice between the parties. (Classic Hotels, Ltd. v. Lewis, 259 Ill. App. 3d 55, 60,
    630 N.E.2d 1167 (1st Dist. 1994).) However case law is consistent in finding that
    pleading requirements for administrative review are less exacting than for other causes
    of action. (Mueller v. Board of Fire and Police Commissioners of the Village of Lake
    Zurich, 267 Ill. App. 3d 726, 643 N.E.2d 255, 262 (2d Dist. 1994).) In the instant
    matter, we found that though more facts probably would have been more helpful in this
    case, the amended complaint may proceed to hearing. (August 1, 1996 Order at 7-8.)
    We continue to believe that the facts pleaded by complainant in its complaint are
    sufficient to proceed to hearing before this administrative agency.
    Regarding respondents’ argument that costs must have been incurred prior to
    hearing, the Board reiterates its previous findings. In our August 1, 1996 order, we
    stated that complainant has a right to a determination as to respondents’ liability before
    it engages in the costs of cleanup. This matter is being sent to hearing in order to
    ascertain liability for the ongoing pollution. Once liability is determined, a concurrent
    action based on cost recovery may be appropriate since it would expedite the
    proceedings and prevent undue delay. If complainant has incurred costs in removal and
    complainant proves this at hearing, in addition to proving respondents’ liability, then
    complainant may seek costs from respondents. Therefore, it is premature for the Board
    to dismiss the cost recovery action in this matter.
    Finally, the Board notes that the issue of a 4(q) notice correlates to the cost
    recovery action discussed above. Section 4(q) states that the Agency “shall have the
    authority to provide notice to any person who may be liable pursuant to Section 22.2(f)
    of this Act for a release or a substantial threat of a release of a hazardous substance or
    pesticide.” (415 ILCS 5/4(q) (1994)).
    2
    Section 4(q) does not require the Agency to
    provide a 4(q) notice in every circumstance, but authorizes the Agency to provide
    notice of liability at the Agency’s discretion.
    2
    As a comparison of Section 4(q) to Section 31(d)(1) of the Act (415 ILCS 5/31(d)(1)
    (1994)), Section 31(d)(1) states that the Agency “...shall issue and serve upon the
    person complained against a written notice informing such person that the Agency
    intends to file a formal complaint.” The Board notes that Section 31(d)(1) requires the
    serving of a pre-enforcement letter upon the person complained against by the Agency
    and offers the person an opportunity to meet with appropriate Agency personnel in an
    effort to resolve such conflicts. Section 4(q) does not mandate such rigid requirements.
    3
    By serving a party with a 4(q) notice, the Agency may seek further damages so
    long as liability is found by the reviewing authority. The Illinois Supreme Court found
    in National Marine, Inc. v. Illinois Environmental Protection Agency, 159 Ill. 2d 381,
    389, 639 N.E.2d 571, 574-575 (1994) that the 4(q) notice neither determines nor
    adjudicates the question of liability, but merely puts a party on notice that it may be
    potentially liable. The Court further stated that a party may take the response action
    requested by the Agency or may choose to ignore the notice entirely.
    Id
    . at 574.
    Where the party ignores the notice, there will be no hearing on the matter until the
    Agency initiates a recovery action for expenses incurred in the cleanup process. (City
    of Quincy v. Richard Carlson
    et al
    ., 163 Ill. App.3d 1049, 1053, 517 N.E.2d 33, 35
    (4th Dist. 1987).) If liability is found to exist in a recovery action where a 4(q) notice
    has been served, the party may be liable to the State for punitive damages as a result of
    the party’s failure to take removal or remedial action.
    Id.
    As stated above with regard
    to the cost recovery issue, we find no reason to prematurely decide liability issues
    pursuant to the 4(q) notice since these issues must be proven at hearing.
    In summary, the motion to reconsider is denied and the Board’s August 1, 1996
    order is clarified to the extent discussed in this order. If respondents intend to file an
    answer to all allegations in the amended complaint, such answer is to be filed on or
    before December 23, 1996 to insure that this matter expeditiously proceeds to hearing.
    IT IS SO ORDERED.
    Board Member K.M. Hennessey abstained and Board Member M. McFawn
    concurred.
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby
    certify that the above order was adopted on the _____ day of ___________, 1996, by a
    vote of ______________.
    ___________________________________
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

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