ILLINOIS POLLUTION CONTROL BOARD
    October 16, 2008
    UNITED CITY OF YORKVILLE, a municipal
    corporation,
    Petitioner,
    v.
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY and HAMMAN
    FARMS,
    Respondents.
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    PCB 08-95
    (Third-Party Appeal - Land)
    ORDER OF THE BOARD (by T.E. Johnson):
    On June 4, 2008, United City of Yorkville (Yorkville) filed a third-party petition asking
    the Board to review a May 1, 2008 determination of the Illinois Environmental Protection
    Agency (Agency). In the determination, the Agency, in response to the request of Hamman
    Farms (Hamman), allows Hamman to apply landscape waste to its fields in Kendall County at a
    rate greater than otherwise permissible under the Environmental Protection Act (415 ILCS 5
    (2006)). On August 7, 2008, the Board granted the Agency’s and Hamman’s motions to dismiss
    the appeal based on the Board’s lack of jurisdiction.
    On September 5, 2008, Hamman filed a motion for attorney fees and costs. Hamman
    seeks an award of $20,325 in attorney fees and $265.81 in related expenses incurred in litigating
    the appeal. Motion at 3. Hamman argues that Yorkville “knew or should have known” that it
    could not prevail before the Board but instead “purposely filed its frivolous action with the intent
    to harass and annoy Respondent Hamman Farms.”
    Id
    . Hamman asserts that the Board may
    order Yorkville to pay the requested $20,590.81 as a sanction under Supreme Court Rule 137 for
    litigation “interposed for improper purposes.”
    Id
    .
    On September 19, 2008, Yorkville filed a response opposing Hamman’s motion.
    Yorkville argues that Supreme Court Rule 137 does not apply and that Yorkville brought the
    appeal in good faith. Response at 3-8. Additionally, according to Yorkville, Hamman’s request
    lacks the specificity required of a motion for sanctions.
    Id
    . at 8-9.
    The Board agrees with Yorkville that Supreme Court Rule 137 does not apply to Board
    proceedings. The Board’s procedural rules state that “the Supreme Court Rules [Ill. S. Ct. Rules]
    do not expressly apply to proceedings before the Board.” 35 Ill. Adm. Code 101.100(b). The
    Board may look to the Illinois Supreme Court Rules “for guidance where the Board’s procedural
    rules are silent.”
    Id
    . The Board’s procedural rules, however, are not silent on sanctions.
    Sections 101.800 and 101.802 of those rules address sanctions and do not provide for attorney
    fees or costs.
    See
    35 Ill. Adm. Code 101.800, 101.802.
    2
    The appellate court has held that absent explicit statutory authority to award “‘attorney
    fees,’” the Board cannot do so. ESG Watts, Inc. v. PCB, 286 Ill. App. 3d 325, 337-39, 676
    N.E.2d 299, 307-09 (3rd Dist. 1997) (holding Board lacked authority to order payment of
    attorney fees as a sanction in a permit appeal),
    appeal denied
    , 173 Ill. 2d 524, 684 N.E.2d 1335
    (1997). Without a statute specifically authorizing them, “attorney fees and other ordinary
    expenses of litigation may not be awarded.” ESG Watts, 286 Ill. App. 3d at 337, 676 N.E.2d at
    307. The Board lacks statutory authority to make the award requested by Hamman and therefore
    denies Hamman’s motion for attorney fees and costs. This docket is closed.
    IT IS SO ORDERED.
    Section 41(a) of the Environmental Protection Act provides that final Board orders may
    be appealed directly to the Illinois Appellate Court within 35 days after the Board serves the
    order. 415 ILCS 5/41(a) (2006);
    see also
    35 Ill. Adm. Code 101.300(d)(2), 101.906, 102.706.
    Illinois Supreme Court Rule 335 establishes filing requirements that apply when the Illinois
    Appellate Court, by statute, directly reviews administrative orders. 172 Ill. 2d R. 335. The
    Board’s procedural rules provide that motions for the Board to reconsider or modify its final
    orders may be filed with the Board within 35 days after the order is received. 35 Ill. Adm. Code
    101.520;
    see also
    35 Ill. Adm. Code 101.902, 102.700, 102.702.
    I, John Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that the
    Board adopted the above order on October 16, 2008, by a vote of 4-0.
    ___________________________________
    John Therriault, Assistant Clerk
    Illinois Pollution Control Board

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