ILLINOIS POLLUTION CONTROL BOARD

December

6,

1991

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

)

Complainant,

)

v.

)

AC 91—40

)

(IEPA No.

500-91-AC)

(Administrative Citation)

)

CURTIS A. NEWLAN,

)

)

Respondent.

ORDER OF THE BOARD

(by

3.

C. Marlin):

This case was closed by entry of

a default Order impOsing

a

$500.00 fine on October 24, 1991.

On. November 12, 1991, the Board

received a

letter from Lisa M. Newlan stating that she may have

misunderstood prior instructions and requesting “to Petition for

Review now if that is

at all possible”.

The letter also states

that a duplicate letter was being written to the Agency attorney.

The Board will construe this letter as a motion to vacate the

October 24,

1991 default Order.

The Board requests that the Agency

file a response to be received in the Board’s office on or before

January

6,

1992.

The Clerk’s Office

is directed to provide the

Agency with a copy of the Newlari letter along with this Order.

In reviewing this filing,

it is obvious the Respondent is not

disputing that the violation took place,

nor

is the Respondent

asserting that

the

violation was

the

result

of

uncontrollable

circumstances.

The Respondent is asking the Board simply to reduce

or eliminate the penalty.

This the Board

cannot

do.

The only

determinations that the Board is allowed to make in this proceeding

are whether the violation occurred and whether that violation was

a result of uncontrollable circumstances.

If those determinations

are made against Respondent, the statutory penalty of $500.00 per

violation must be assessed by the Board.

To avoid any confusion about what could happen in this case,

the Board wishes to make it clear that if a petition for review is

allowed to be filed, Sections 31.1 and 42(b)(4) of the Act provide

for only two outcomes:

1.

The Board can find that there was no violation of Section

21(p)

or

(q),

or

that

the

violation

resulted

from

uncontrollable circumstances. Then, the person filing the

petition pays nothing.

128—83

---

2.

If the Board finds that a violation did occur,

and that

there were no uncontrollable circumstances,

the person

filing the petition pays the

fine plus hearing costs.

Hearing costs usually average from $200.00 to $1,000.00,

and must be paid in addition to the penalty.

At hearing, Respondent must be.able to reasonably assert that the

violation was a result of uncontrollable circumstances or assert

at hearing

that

the Agency

has

not proven

that

the violation

occurred.

If Respondent

cannot reasonably make these kinds

of

statements

(and explain why they are true),

a petition for review

would most likely be an unwise course of action since it would only

cost the Respondent more money.

The Board today is not accepting the petition for review, but

is considering whether to allow the petition to be

filed.

The

Clerk

is directed to serve Respondent with a copy of the Act and

the Board’s procedural

rules via

first class mail,

along with a

copy

of

this

Order.

Unless

the

Board

receives

a

letter

from

Respondent stating that he or she understands the implications of

the petition for review and wishes to pursue

it,

the Board will

dismiss the petition for review.

Such letter must be received

by

the Board not later than January

6,

1992.

IT IS SO ORDERED.

I,

Dorothy N.

Gunn,

Clerk of the Illinois Pollution Control

B9ap~1,hereby cert~ythat the above Order was adopted on the

(~2½~

day of

___________________,

1991,

by a vote of

~

.6

ution Control Board

~L~2~Z1

,)~7.

Illinois

128—84