ILLINOIS POLLUTION CONTROL

BOARD

June 23,

1994

SANGANON

COUNTY,

)

Complainant,

)

 AC 94—15

)

 (County No. SCDPH-94—AC-5)

(Administrative Citation)

ESG WATTS,

 INC.,

)

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

 motion for reconsideration of the Board’s

default

order.

 Prior to this filing, ESG on

May

1994,

filed

motion

file

petition

for

review

 instanter.

 The Board denied

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

 1994.

respondent’s

present

motion,

states

that,

although

the

administrative

citations

were

received

 by the respondent’s

attorney,

they

were

not

pursued

due

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

the

motion

file

its

 petition for

review

instanter

which

was

denied.

addition

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.

June

1994

the

complainant

 filed its response to the

motion.

 Complainant states that allowing the citations to sit

unattended

secretary’s

desk

for

two

weeks

not

grounds

for

vacating

default

judgment,

and

that

the

secretary’s

illness

does

not

 explain respondent’s failure to file a petition between

March

 21 and April

11,

1994.

addition,

 complainant requests

that

Kevin

McClain’s

 affidavit be stricken because it lacks a

notary

seal

and

 signature.

 However, the complainant does not

cite

any

 authority in supporting its motion.

ruling

upon

motion

for

reconsideration

the

Board

consider,

but

not

limited

to,

error

the

decision

2

and facts in the record which may have been overlooked.

 (35 Ill.

Athu. Code S1O1.246(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”. iKoro~luyanv. 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 21,

 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 21,

 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

 its default order.

3

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.

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.

 (See also 35 Ill. Adm. Code

101.246, Motion for Reconsideration).

I, Dorothy N. Gunn,

 Clerk of the Illinois Pollution Control

Board,

 ~ereby cert

 that the above order was adopted on the

 ~-~day of

 ,1994, by a vote of_________

~

dc.,

Dorothy N.

 q41-in,

 Clerk

Illinois Pollution Control Board