ILLINOIS POLLUTION CONTROL BOARD

October

20,

1988

IN THE MATTER OF:

)

)

DAN HEUSINKVED, County Clerk,

)

AC 87—25(B)

County of Whiteside,

State of

)

(IEPA Docket No.

Illinois,

)

8302—C)

Respondent.

)

DISSENTING OPINION (by J.

Theodore Meyer):

I dissent from the majority order

in this matter because

I

do not believe that the majority order allows

for recovery of all

hearing costs incurred by the Board and the Illinois

Environmental Protection Agency (Agency).

Section 42(b)(4)

of the Illinois

Environmental Protection

Act

(Act) provides that in an administrative~citationaction,

“any person found

to have violated any provision

of subsection

(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 by the Agency.”

(Emphasis added.

Ill.

Rev.

Stat.

1987,

ch. lll~, par.

1042(b)(4).)

The statement of

costs submitted by the Agency seeks

to recover only the travel

costs of the Agency attorney

(mileage,

per diem,

and hotel), for

a total of

$110.07.

The Board states that its costs are hearing

officer costs

(268.04)

and court reporter costs

($379.75),

for

a

total

of $647.79.

I believe that “hearing costs” as used

in

Section

42 includes other expenses such as attorney time,

administrative and support staff time,

and overhead costs.

After

all, the Agency attorney,

for example, used

a significant amount

of

time in preparation,

travel,

and appearance at hearing.

That

time could have been used to handle other matters

if the instant

administrative citation hearing had not been held.

Likewise,

the

Board incurs more costs than simply hearing officer and court

reporter

expenses.

State and local government

is now often imposing

a series of

“user

fees”, on the theory that those who use

a service should

pay

for

it.

For example, most state agencies

(including the

Board)

charge fees for photocopies of that agency’s records and

files.

Since

those who do not violate the Act are charged such

fees,

I believe that those who have been found

to have violated

the Act should be assessed costs

to

the full extent of

the

statutory authority.

In this

case,

the Illinois General Assembly

has stated

that those

found

to have violated Section

21(p)

shall

pay hearing costs incurred by the Board and

the Agency.

I

believe

that this mandate

should be given

a broad

interpretation,

and all reasonable costs assessed against respondent.

93—247

---

—2—

For these reasons,

I dissent.

3.

T eodore ~eyer

Boa

Member ~

I, Dorothy M. Gunn, Clerk

of the Illinois Pollution Control

Board, hereby certify that the above Dissenting Opinion was filed

on the

L~?Iô?

day of

_________________,

1988.

~,7~17

~

Dorothy M,/Xunn, Clerk

Illinoist~6llutionControl Board

93—24R