ILLINOIS POLLUTION CONTROL BOARD
    April 17, 2003
     
    PEOPLE OF THE STATE OF ILLINOIS,
     
    Complainant,
     
    v.
     
    CHIQUITA PROCESSED FOODS, L.L.C., a
    Wisconsin limited liability corporation,
     
    Respondent.
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    PCB 02-56
    (Enforcement - Water)
     
    ORDER OF THE BOARD (by T.E. Johnson):
     
    This matter is before the Board on a January 6, 2003 motion to vacate a summary
    judgment order filed by the People of the State of Illinois (People). On January 17, 2003,
    Chiquita Processed Foods, L.L.C., a Wisconsin limited liability corporation (Chiquita) filed a
    response to the motion along with the affidavit of attorney David M. Walter.
     
    For the reasons identified below, the Board denies the People’s motion to vacate
    summary judgment.
     
    PROCEDURAL BACKGROUND
     
    On November 9, 2001, the complainant filed a complaint alleging that Chiquita caused or
    allowed water pollution in violation of the Environmental Protection Act (Act) (415 ILCS 5/1
    et
    seq
    . (2002)) and the associated regulations at its pumpkin processing facility located in
    Princeville, Peoria County.
     
    On November 21, 2002, the Board issued an order that granted Chiquita partial summary
    judgment. In the order, the Board dismissed counts IV and V without prejudice. In summary,
    the Board found that the Illinois Environmental Protection Agency (Agency) did not meet the
    requirements of Section 31(a)(1) of the Act (415 ILCS 5/31(a)(1) (2002)), in that the violations
    alleged in counts IV and V were referred to the Attorney General’s Office by the Agency without
    the issuance or service of a written notice of violation prior to the referral.
    See
    People v.
    Chiquita, PCB 02-56 (Nov. 21, 2002). The Board found that no genuine issue of material facts
    exists on these matters.
     
    MOTION TO VACATE SUMMARY JUDGMENT
     
    In the motion, the People argue that, without regard to new evidence or a change in the law,
    the Board’s rationale for its order granting summary judgment through a dismissal without
    prejudice result was simply mistaken. Mot. at 4.
     
    2
    Chiquita responds that the People’s motion is untimely. Chiquita asserts that although the
    motion itself is dated December 20, 2002, it was not mailed for filing until at least eleven days
    later, on December 31, 2002. Resp. at 1. Chiquita contends that the motion was filed at least 40
    days after the Board’s November 21, 2002 order was entered, and as result, even if the motion is
    otherwise properly brought, it is untimely and must be denied on that basis. Resp. at 2. Chiquita
    also argues that the motion presents no new evidence and references no changes in the law.
    Resp. at 9.
     
    DISCUSSION
     
    The People’s motion is entitled a motion to vacate summary judgment, and is brought
    pursuant to Section 101.520 of the Board’s procedural rules. 35 Ill. Adm. Code 101.520. In
    ruling on a motion for reconsideration under 35 Ill. Adm. Code 101.520, the Board is to consider
    “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, PCB 93-156, slip op. at 2 (Mar. 11, 1993),
    citing
     
    Koroglyun v. Chicago Title & Trust Co., 213 Ill. App. 3d 622, 572 N.E.2d 1154, 1158 (1st Dist.
    1992). Section 101.902 of the Board's procedural rules sets forth the factors the Board will
    consider when ruling upon a motion under 35 Ill. Adm. Code 101.520. Those factors include
    “new evidence, or a change in the law
    ,
    to conclude that the Board's decision was in error.” 35
    Ill. Adm. Code 101.902.
     
    The Board issued the order in question on November 21, 2002. Any motion to reconsider
    must be filed within 35 days of adoption of the Board order, in this instance December 26, 2003.
    See
    35 Ill. Adm. Code 101.520(a). The People’s motion was sent for filing on December 31,
    2002.
     
    As more than 35 days after the adoption of the Board order had passed before the motion
    was filed, the Board does not accept the motion. However, the Board notes that the People’s
    motion does not present any new evidence or claim that the law has changed since November 21,
    2002. In fact, the People make their argument without regard to new evidence or change in the
    law, but instead assert that the Board’s rationale for its order granting summary judgment was
    mistaken. Accordingly, as the People have failed to meet the standard for the filing of a motion
    under 35 Ill. Adm. Code 101.520, the motion would be denied even if timely filed.
     
    IT IS SO ORDERED.
     
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
    adopted the above order on April 17, 2003, by a vote of 6-0.
     
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

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