ILLINOIS POLLUTION CONTROL BOARD

June 3,

1993

SANGANON COUNTY,

)

Complainant,

)

 AC 92—37

)

 Docket B

GERALD B. MILLER,

)

 (Administrative Citation)

(SCDPH 92—AC-12)

Respondent.

CONCURRING OPINION

 (by 3. Anderson):

I have no argument at all per se with the notion that,

if

a violator must pay the State for the hearing costs incurred by

the Board and the Agency, then Sangamon County ought to be

refunded for its administrative citation hearing costs when it

acts in the Agency’s stead.

 My problem is that, given that there

is no specific mention of local government hearing costs anywhere

in the highly-detailed administrative citation provisions of the

Environmental Protection Act (Act), the Board’s statutory

authority to order the payment and deposit of such costs is at

best implied.

I would be far more comfortable if the statute were amended

to be specific regarding payment of local government hearing

costs.

 Extra support seems especially prudent when dealing with

monies.

 I have difficulty interpreting the Agency’s statutory

authority,

 contained in Section 4(r)

 of the Act, to delegate its

functions to a local government as necessarily implying that a

local government so delegated is then on the same footing as the

 Agency with regard to hearing costs.

 I recognize that

“stretching” an interpretation of the statute to reach a desired,

indeed coinmor~sense,

 outcome,

 as we have in this case,

 is not

without merit.

 However, use of the delegation agreement as our

authority is particularly awkward in the administrative citation

statutory setting; in contrast to the Board’s almost unfettered

statutory discretion in making determinations in a “regular”

enforcement action, the administrative citation provisions in the

Act circumscribe the Board’s discretion throughout, and does so

with great specificity.

 Unfortunately, one exception concerns

the question of local government hearing costs.

Section 42(b) (4) of the Act is the only section where

administrative citation hearing costs are addressed.

 That

section states:

In an administrative citation action under Section 31.1

of this Act, any person found to have violated any

provision of subsection

 (p) or

(q)

 (sic; should be

(0)

~3-OO9I

2

or

(p)

 of section 21 of this Act shall pay a civil

penalty of $500 for each violation of each such

provision, plus any hearing costs incurred bY the Board

and the Agency.

 Such penalties shall be made payable

to the Environmental Protection Trust Fund,

....;

except that if a unit of local government issued the

administrative citation, 50

 of the civil p~naltyshall

be payable to the unit of local government.

 (Emphasis

added.)

As is evident from the above, Board and Agency penalties,

but not costs,

 are specified for deposit into the Environmental

Protection Trust Fund.

 The Board is thus required to deposit

hearing costs into the State’s general revenue fund, pursuant to

the State Finance Act.

 The State Finance Act defines the general

revenue fund as:

 “All money, belonging to or for the use of the

State, paid into the treasury thereof, not belonging to any

special fund in the State treasury,

 shall constitute the general

revenue fund”.

 (30 ILCS 105/4.)

The first obvious question is whether the statute allows

the Board to order the violator to pay local government hearing

costs,

 as well as those of the Board and the Agency.

 Even if one

answers “yes” to this question,

 it raises another question:

whether the repayment of hearing costs incurred by a local

government

—

 whose authority to conduct its administrative

citation activities

 is derived from the Act rather than local

ordinance

—

 would belong to or be for the use of the State, and

thus should be deposited in the general revenue fund.

 Even if

one answers “no” to the this question, then another question

arises: where does the statute authorize the Board to order the

deposit of such costs into a local fund designated by unit of

local government.

 Unfortunately, there is

specific language

in the Act that answers either question.

Further viewing this issue from a statutory construction

perspective, it is difficult to find much implied “wiggle-room”

when looking at Section 42(b) (4) where:

a)

 there is no mention of local government

hearing costs

 when there j~.specific

authorization to impose Agency and Board

hearing costs;

b)

 there is no designation as to where such

local government costs are to go when the

Agency’s and Board’s costs ~

 to be

deposited into the general revenue fund

pursuant to the State Finance Act; and

 there is specific mention of units of local

government regarding penalties in Section

I L~3-O092

42(b) (4)

 where in the same section there is

silence regarding local government costs.

In my view, adding the phrase “or a unit of local

government” to the language in Section 42(b) (4) and specifying

where the monies are to be deposited would cure the problem.

It is for these reasons that I respectfully concur.

I, Dorothy M.

 Gunn,

 Clerk of the Illinois Pollution Control

 Board, hereby certi~ythat the

 abo’cçe concurring opinion was

submitted on the

C/~~

 day of

__________,

1993.

~‘

~-~•

Dorothy

M.17~unn, Clerk

Illinois ~llution

 Control Board

Board Member

01 t43-0093