ILLINOIS POLLUTION CONTROL BOARD
January 4, 2001
PEOPLE OF THE STATE OF ILLINOIS, )
)
Complainant, )
)
v. ) PCB 00-127
) (Enforcement - Cost Recovery)
DAYNE ROGERS, an individual, and BLACK )
GOLD INTERNATIONAL, a dissolved Illinois )
corporation, )
)
Respondents. )
ORDER OF THE BOARD (by S.T. Lawton, Jr.):
On November 2, 2000, the Board granted the complainant’s motion for summary
judgment for the cost of corrective action, but ordered the parties to clarify the issue of punitive
damages at hearing. The Board found that neither party included sufficient information in the
record to show whether respondents had sufficient cause to fail to take such action as required
under 55.3(d) of the Environmental Protection Act (Act). The complainant filed a motion for
reconsideration on November 29, 2000, requesting the Board to grant punitive damages based
upon the evidence supporting its motion for summary judgment. The Board denies the
complainant’s motion for reconsideration for reasons explained below.
In ruling upon a motion for reconsideration, the Board is to consider factors including,
but not limited to, error in the previous decision and facts in the record which are overlooked.
35 Ill. Adm. Code 101.902. The Board has previously held 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.” Citizens Against Regional Landfill v. County Board
of Whiteside County (March 11, 1993), PCB 93-156 (citing Korogluyan v. Chicago Title &
Trust Co., 213 Ill. App. 3d 622, 572 N.E.2d 1154 (1st Dist. 1992)).
Complainant argued that the Board erred in applying the law to the facts set forth in its
motion for summary judgment when the Board determined that the issue of punitive damages
should be presented at hearing. The Board appropriately applied the law concerning motions for
summary judgment, and upholds the finding in its November 2, 2000 order that complainant did
not present enough evidence in the record to justify granting punitive damages at that time.
As stated in the November 2, 2000 Board order, summary judgment is appropriate when
the pleadings and depositions, together with any affidavits and other items in the record, show
that there is no genuine issue of material fact and that the moving party is entitled to judgment as
a matter of law. See Dowd & Dowd, Ltd. v. Gleason, 181 Ill. 2d 460, 693 N.E.2d 358 (1998).
In ruling on a motion for summary judgment, the Board “must consider the pleadings,
depositions, and affidavits strictly against the movant and in favor of the opposing party.”
Dowd, 181 Ill. 2d at 483, 693 N.E.2d at 370.
The complainant, in its motion for summary judgment on September 14, 2000, failed to
show by a preponderance of evidence that it was entitled to punitive damages under Section
55.3(h) of the Act, which states:
Any person liable to the Agency for costs incurred under subsection (g) of this
Section may be liable to the State of Illinois for punitive damages in an amount at
least equal to, and not more than 2 times, the costs incurred by the State if such
person failed without sufficient cause to take preventative or corrective action
pursuant to notice issued under subsection (d) of this Section. 415 ILCS 5/55.3(h)
(1998) (emphasis added).
The complainant erroneously stated in its motion for reconsideration that the Board’s
November 2, 2000 interim opinion and order found “punitive damages can never be imposed
unless respondents present evidence showing they did not have sufficient cause to fail to take
action called for in the Section 55.3(d) notice.” Mot. at 3-4. This argument presumes that the
complainant first proved by a preponderance of evidence that it was entitled to punitive damages
under Section 55.3(h) of the Act. The complainant did not do so.
Although complainant demonstrated in its motion for summary judgment that it was
entitled to costs pursuant to Sections 55.3(g) and (k) of the Act, it did not provide any evidence
concerning the issue of whether the respondents had sufficient cause to fail to take preventative
or corrective action. See 415 ILCS 5/55.3(h) (1998). The complainant did not address the
element of sufficient cause in its motion at all, and did not provide any evidence in the record to
warrant granting punitive damages without a hearing on the issue. Since the complainant failed
to meet its burden on this matter, the Board denies the complainant’s motion for reconsideration.
If the complainant seeks to pursue punitive damages, they must proceed to hearing in accordance
with this order.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that the
above order was adopted on the 4th day of January 2001 by a vote of 7-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
