2

to Section 41(a) of the Act, Board orders may be appealed directly to the Illinois Appellate Court

within 35 days after the Board serves the order. 415 ILCS 5/31(a) (2002));

see also

35 Ill. Adm.

Code 101.300(d)(2), 101.906, 102.706.

 

PETITION FOR SUPPLEMENTAL ATTORNEY’S FEES

 

Ayers is asking that the Board order the Agency to submit a voucher for $44,456.49

within 30 days and if a voucher is not submitted timely, include interest. Pet. at 3. Ayers is also

seeking an additional $14,732.32 in legal expenses from the Agency. Ayers asserts that the

“Agency is deliberately and systematically disregarding the Board’s orders” by refusing to

reimburse attorney’s fees. Pet. at 2. Ayers has included an affidavit and billing statements for

additional legal costs after April 30, 2004. Those additional legal expenses include legal

expenses incurred responding to the Agency’s opposition to the request for attorney’s fees and

seeking compliance with the Board’s August 5, 2004 order. Pet. at 2-3.

 

AGENCY RESPONSE

 

The Agency maintains that Ayers is incorrect in alleging that the Agency has disregarded

the Board’s order. Resp. at 2. The Agency points out that the Agency sought reconsideration of

the August 5, 2004 order awarding attorney’s fees, which the Board denied on October 7, 2004.

Id

. The Agency then had until the middle of November 2004 to appeal the Board’s decision if

the Agency had decided to do so.

Id

. The Agency then took 18 working days to internally

inform the UST claims unit that the reimbursement should be processed. Resp. at 3. The

Agency further asserts that payments from the UST Fund have been delayed because of

shortfalls in the UST Fund and claims are processed based on the priority assigned the request.

Id

. Based on these facts, the Agency maintains that the Agency has acted with due and normal

diligence and the Agency has not disregarded the Board’s order. Resp. at 4.

 

REPLY

 

In the reply, Ayers takes issue with the Agency’s assertions that the Agency has acted

with due and normal diligence. Ayers asserts that other claims dated after August 4, 2004 have

in fact been sent to the comptroller’s office for payment. Reply at 3. Ayers also claims that the

affidavit of Mr. Doug Oakley does not assert that there were insufficient monies in the UST

Fund, rather that the priority list was established and payments delayed. Reply at 2. Finally

Ayers asserts that the Agency responded only to the issue of delay, while Ayers request is also

premised on the same reasons that were initially established in the August 5, 2004 order. Reply

at 4. Ayers maintains that “it is not uncommon for litigation concerning the appropriateness of

attorney fee awards to give rise to litigation above and beyond that of the underlying case.”

Id

.

 

DISCUSSION

 

Before reaching the merits of this filing, the Board must decide how to procedurally

approach the filing. The filing by Ayers is captioned to include PCB 03-70 Illinois Ayers Oil

Co. v. IEPA and PCB 05-48 Illinois Ayers Oil Co. v. IEPA. PCB 03-70 is still pending before

the Board and no decision has been made concerning the contested costs, let alone determining

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3

that attorney’s fees are eligible for reimbursement. The Board dismissed PCB 05-48 because the

case was not timely filed (

see

Illinois Ayers Oil Co. v. IEPA PCB 05-48 (Jan. 6, 2005)). The

only case where attorney’s fees have been awarded is in PCB 03-214. Therefore the relief

requested in Ayers’ petition for supplemental attorney’s fees is not relief that can be granted in

PCB 03-70 and 05-48.

 

However, even with PCB 03-214, there are procedural problems. The time for requests

to reconsider the Board’s decision, as well as the time to file an appeal, have long past.

See

415

ILCS 5/41(a) (2002)); 35 Ill. Adm. Code 101.520. The docket is therefore closed in PCB 03-

214. The Board’s procedural rules do allow for relief from final orders if the motion is filed

within one year of the Board’s final decision. 35 Ill. Adm. Code 101.904(c). Section 101.904(b)

provides:

 

On written motion, the Board may relieve a party from a final order entered in a

contested proceeding for the following:

 

1) Newly discovered evidence that existed at the time of hearing and

that by due diligence could not have been timely discovered;

 

2) Fraud (whether intrinsic or extrinsic), misrepresentation, or other

misconduct of an adverse party; or

 

3) Void order, such as an order based upon jurisdictional defects. 35

Ill. Adm. Code 101.904(b).

 

Ayers has not cited the Board’s procedural rules, nor has Ayers specifically alleged that

there is newly discovered evidence, fraud, misrepresentation or other misconduct, or that the

order is void. Further, even if the Board were to interpret Ayers filing as seeking relief due to

alleged misconduct of an adverse party, the alleged misconduct is actions and activities taken by

the Agency since the Board entered the final order in PCB 03-214. Thus, Ayers is not actually

seeking a modification of the order in PCB 03-214, but rather Ayers is seeking additional relief

due to the Agency’s lack of due diligence in complying with the Board’s August 5, 2004 order.

Further, the additional attorney’s fees sought by Ayers are fees not originally requested before

the Board entered the final order on August 5, 2004 or sought during the appropriate period for

reconsideration.

 

The Board and the Agency were both created by the Environmental Protection Act.

See

 

415 ILCS 5/4 and 5/5 (2002). As such, both the Board and the Agency only have the authority

granted to them by the Act. Granite City Division of National Steel v. PCB, 155 Ill.2d 149, 613

N.E.2d 719, 729 (1993). Under the Act, the Board does not have the authority to “challenge the

Agency’s performance of its duties.” Landfill, Inc. v. PCB, 74 Ill.2d 541, 387 N.E.2d 258, 265

(1978).

 

A review of the filings by Ayers establishes that the relief Ayers is seeking is relief that

the Board cannot grant, even in PCB 03-214. Ayers is seeking additional attorney’s fees for

legal expenses incurred responding to the Agency’s opposition to attorney’s fees being awarded

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4

and for fees “expended in attempting to seek Agency compliance with the Board’s August 5,

2004 order.” Pet. at 3. The Board finds that the request for these supplemental fees is not

appropriate under 35 Ill. Adm. Code 101.904 as the request does not meet any of the criteria in

Section 101.904(b).

 

Next Ayers is seeking an order directing the Agency to submit a voucher for Ayers. The

Board finds that such an order would also be inappropriate. The Board’s August 5, 2004 order

directed the Agency to reimburse Ayers for the legal fees associated with the appeal in PCB 03-

214. The Board cannot review the Agency performance of the Agency’s duties pursuant to that

final order.

See

Landfill, Inc. 387 N.E.2d at 265. Therefore, the Board finds that the relief

sought by Ayers is relief the Board cannot grant and the request is denied.

 

CONCLUSION

 

 

The Board finds that the requested relief is relief the Board cannot grant in this

proceeding. Therefore, the Board denies Ayers request for supplemental attorney’s fees and an

order directing the Agency to submit a voucher for Ayers.

 

 

IT IS SO ORDERED.

 

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board

adopted the above order on June 16, 2005, by a vote of 5-0.

 

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board