ILLINOIS POLLUTION CONTROL BOARD
February
8,
1990
COUNTY OF DUPAGE,
Complainant,
AC 88—76,
88—77
v.
)
Docket B
IEPA Nos.
88—CD—278,
E
& E Hauling,
Inc.
)
88-CD-279
Respondent.
)
(Administrative Citation)
INTERIM ORDER OF
THE
BOARD
(by M.
Nardulli):
On September
13,
1989,
the Board found
in Docket A
of this
consolidated
appeal,
that
E
& E Hauling Company
(E
&
E)
was
in
violation
of
section
21(p) (5)
of
the
Illinois
Environmental
Protection Act
(Act)
on two occasions,
as alleged by the County of
DuPage
(DuPage).
In its accompanying Opinion, the Board requested
E
&
E,
DuPage
and the
Illinois
Environmental
Protection
Agency
(Agency)
to brief
the
issue
as
to whether the Agency
or
DuPage
County may recover hearing costs from E & E.
The Board articulated
the problem
in
its
Docket
A Opinion
(p.
7,
8).
The Board also
ordered the Agency and DuPage to submit affidavits of their hearing
costs,
but
reserved
the
determination
as
to
whose
costs
are
recoverable to Docket
B.
DuPage
filed
its response on
October
16,
1989;
DuPage also
filed its affidavit of costs on October
13.
The Agency filed its
response on October 17,
1989, but declined to submit an affidavit
of its hearing costs.
E
& E filed its response, as well as a reply
challenging
DuPage’s
requests
for
costs,
on
October
30,
1989,
having
been granted
the extended
filing time
by
Board
Order
of
October 18,
1989.
The
following two sections of the Act are relevant
to this
Board’s determination of whether DuPage may recover hearing costs.
Section
42(b) (4)
of the Act states as
follows:
In
an
administrative
citation
action
under
Section 31.1 of this Act,
any person found to
have violated any provision of subsection
(p)
or
(1)
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, to be used
in accordance with the provisions
of “an Act
creating
the
Environmental
Protection
Trust
Fund”, approved September 22,1 979, ad amended;
except
that
if
a
unit
of
local
government
issued the administrative citation,
50
of the
11S-(~7
2
civil penalty shall be payable to the unit of
local
government.
(Ill.Rev.
Stat.
1987,
ch.
111½,
par.
l042(b)(4)
(Emphasis added).)
Section 4(r)
of the Act states
in pertinent part:
The Agency may enter into written delegation
agreements with any unit
of local government
under which it may delegate all or portions of
it
inspecting,
investigating and enforcement
functions
(Ill.
Rev.
Stat.
1987,
ch.
111½,
par.
1004(r)
(Emphasis added).)
We also note that Section 31.1 of the Act, which articulates
procedural
requirements
for
administrative
citations,
clearly
includes
units
of
local
government
with
which
the
Agency
has
entered into “Section 4(r)” agreements.
AGENCY’S RESPONSE
As directed by the Board’s Order
of September
13,
1989,
in
its
response
the
Agency
quoted
its
delegation
agreement
with
DuPage:
1
When the.
..
(County of DuPage)
refers a matter for formal
enforcement action..., the case will be prosecuted through the
available channels utilized by the Agency for cases developed
by
Agency
personnel
or
through
the
DuPage
County
State’s
Attorney’s
office.
The
parties
hereto
recognize
that
the
State’s Attorney has time
and manpower constraints
and may
therefore be constrained from prosecuting any of all formal
enforcement cases.
(Agency Res. p.q).,
The Agency
asserts that
all State’s Attorneys
in delegated
counties
expressed
concern
about
staff
and
budget
shortages.
Therefore, the delegation agreements provided that Agency attorneys
would
assist
and participate as
requested,
including trying the
case and submitting
a brief,
as
is the case here.
The
Agency
relies
upon
Article
VII
of
the
Illinois
Constitution
which
provides
that
units
of
local
government
may
contract
with
the
State
to
obtain
or
share
services
and
the
“delegation provision”
of section 4(r)
of the Act to support
its
position that
DuPage
is
entitled
to
recover
costs.
The Agency
asserts
that
its participation
in
this
case was
on
behalf
of
DuPage, that DuPage’s inspector conducted the on—site investigation
giving
rise
to
the citation
and that
the case was prepared
and
filed by DuPage.
According to the Agency, since it was not acting
1
DuPage adopted the Agency’s response in its entirety and,
therefore,
did not file
a separate response.
3
on its own behalf and because DuPage is the real party of interest,
DuPage should recover its hearing costs.
The Agency points to
~
the
Matter
of:
Bi-State
Disposal,
Inc.,
AC
88-33
Docket
B
(February 23,
1989)
as precedent for a county’s recovery of costs
where the Agency has delegated its authority to the county pursuant
to section 4(r)
of the Act.
E
& E’S RESPONSE
E
&
E argues
that
section
42(b) (4)
of
the Act
requires
a
respondent to pay only those “hearing costs incurred by the Board
and the Agency.”
(Ill.
Rev.
Stat.
1987,
ch.
111½,
par.
1042(b)
(4)
(Emphasis
added).)
The Act expressly
refers
to
units
of
local
government,
but only insofar as they are entitled to share
in the
civil penalty.
E
& E notes that the Act raises the question of
whether
a
delegation
agreement
may
be
used
to
circumvent
the
express delegation powers given go the Agency under section
4(r)
of the Act.
However,
E
& E asserts that
this
issue need
not be
reached
in this case since the Agency,
not DuPage, was the actual
entity which conducted the hearing and filed the briefs.
E
& E argues that
DuPage’s hearing involvement was
in
name
only and that DuPage should not recover hearing costs when it was
the Agency that incurred them.
E
&
E argues that this conclusion
is
entirely consistent with
Bi-State Disposal,
where
it was the
County
(St.
Clair)
that prosecuted the action
and conducted
the
hearing,
and where the Board
allowed the
County
to
recover
its
hearing costs.
However,
in the
instant proceeding,
even though
DuPage suggests that
it could have exercised
its delegated power
to prosecute the action,
it did not exercise those powers.
E
& E
argues that in this case,” where the Agency is required to function
as
if
it
has
not delegated
any
enforcement
powers
to
a
local
government
unit,
the
Board
should conclude
that
it was not
the
intent of the legislature to require
a respondent to reimburse the
County’s hearing costs.”
Lastly,
E & E challenges the costs for which DuPage is seeking
reimbursement
as not the type
of
items which are recoverable
as
“hearing costs”.
BOARD’S FINDINGS
This case involves an issue of statutory construction, which
presents
a question of law.
(J.M.
Jones
v.
Department of Revenue,
74
Ill.App.3d 374,
392 N.E.
2nd 949
(4th Dist.
1979).)
In such
a
case,
this Board’s
objective must
be to ascertain the intent
of
the legislature
in
enacting the particular
language
in question.
(People
ex rel.
Dickey
v.
Southern Illinois Railway
Co.,
17
Ill.
2nd
550,
162
N.E.
2d
417
(1959).)
In
giving
effect
to
the
legislature’s
intention,
provisions
of the statute should be read
as
a whole and in light of the statute’s general purpose. (~~le
V.
Jordan,
103 Ill.
2d
192,
469 N.E.
2nd 569
(1984).)
Ifl S-
4
Section
42(b)(4)
of the Act does not specifically
refer to
the
payment
of
hearing
costs
incurred
by
a
unit
of
local
government, but refers only to the Board and the Agency recovering
such costs.
(Ill.
Rev.
Stat.
1987,
ch
111½,
par.
1042
(b) (4).)
However, when section 42
(b) (4)
of the Act
is read in conjunction
with the delegation provision of section 4(r) of the Act, the Board
finds the legislative intent to be one of compensating
a unit of
local government,
which
is placed
in the position of the Agency
pursuant to
a delegation
agreement,
for its hearing
costs.
To
restrict the recovery of hearing costs to the Board and the Agency,
even where the Agency has delegated its enforcement authority to
a unit of local government,
would be inconsistent with the policy
of
encouraging units
of
local
government
to
pursue enforcement
actions.
This finding
is consistent with the Board’s holding
in
Bi-State Disposal,
Inc.
wherein
the Board allowed the county
to
collect
its
hearing
costs
where
the
Agency
had
delegated
its
enforcement
functions
to
the
County.
Moreover,
to
restrict
recovery of hearing costs to the Agency and Board places facilities
under
the
jurisdiction
of
units
of
local
government
at
an
advantage.
These facilities would be able to petition for review,
but would not be subject to hearing costs.
Such a result would be
unfair.
E
&
E
argues that
DuPage
should
not recover
hearing
costs
because
it
was the Agency
that
actually conducted
the hearing.
The
record establishes that
both
an
Agency
attorney
and DuPage
County assistant state’s attorney appeared at hearing.
(Rep.
of
Proc.
12/8/88.)
However,
the Agency attorney presented evidence,
conducted cross—examination
and filed a post—hearing brief.
The
record also establishes that a DuPage County inspector investigated
the site in question and testified at hearing.
(~
at 32-176.)
Merely because DuPage’s attorney did not actively participate
in prosecuting this case at
hearing does not obviate
a finding
that DuPage may seek reimbursement of hearing costs.
Here, we have
a valid delegation of authority from the Agency to DuPage pursuant
to section 4(r)
of the Act.
The Agency states that it was merely
assisting DuPage and that DuPage is entitled to seek reimbursement
of hearing costs.
Although section 4(r)
of the Act contemplates
a partial delegation of authority from the Agency to the unit of
local
government,
here
the
Agency
does
not
allege
that
it
is
entitled to reimbursement of any costs incurred as a result of the
participation at hearing.
The Agency’s position is underscored by
the
fact
that
it
has
declined
from
submitting
an
affidavit
of
hearing costs.
This Board is not presented with
a situation where
both
the
Agency
and
the
unit
of
local
government
are
seeking
recovery of hearing costs
and,
therefore,
this
issue will not be
decided here.
Although the Board
in its September
13,
1989 Order
directed the Agency to submit its affidavit of hearing costs,
the
Agency failed to do so apparently based upon its belief that DuPage
is the entity entitled
to reimbursement
of hearing
costs.
The
IOS—7fl
5
Board does not look favorably upon the Agency’s failure to follow
a Board directive.
However, the Board sees no reason to pursue the
matter further since the Agency has taken the position that it will
not seek reimbursement of hearing costs.
The
Board
concludes
that,
pursuant
to
the
“delegation
provision”
of
section
4(r)
of
the
Act and
the
“hearing
costs”
provision of section
42(b) (4)
of the Act,
DuPage
is
entitled to
recover hearing costs.
However, the Board agreeswith
E
& E that
DuPage’s affidavit
of hearing costs contains
items which do not
constitute “hearing costs.”
DuPage’s affidavit seeks reimbursement
based upon hourly wage rates for Steven K.
Dunn,
the DuPage County
inspector who investigated the site in question and testified at
hearing,
Keith
Trychta,
field
inspector,
Darlene
Lynch,
Senior
Environmental Legal Assistant for DuPage, and Gretta A. Tameling,
the assistant state’s attorney who appeared at hearing.
According
to the affidavit and accompanying time
sheets,
DuPage
is seeking
reimbursement for the time spent
at the December
8,
1988 hearing
for these individuals based upon a breakdown of their salaries.
Alt:~oughsection 42(b) (4)
of the Act does not define “hearing
costs,” the term “costs” has acquired a fixed and technical meaning
in
the
law.
“Costs are allowances
in
the nature of
incidental
damages awarded by law to reimburse the prevailing party,
to some
extent
at
least,
for
the
expenses
necessarily
incurred
in
the
assertion
of his rights
in
court.”
(Galowich
v.
Beech Aircraft
Corp.,
92
Ill. 2d 157,
441 N.E.2d 318,
321 (1982).)
“A successful
litigant, however,
is not entitled to recover the ordinary expenses
of
litigation
and
trial
preparation,
and
only
those
items
designated
by
statute
to
be
allowable
can be
taxed
as
costs.”
~
441
N.E.2d
at
322.)
Attorneys’
fees
are
separate
and
distinct from costs and are not recoverable as such.
(Meyer
v.
Marshall,
62 Ill.
2d 435, 343 N.E. 41
(1943)
; Ritter v. Ritter, 381
Ill.
549
46 N.E.
2d 41
(1943).)
Additionally,
an expert witness’
fees for testifying are not recoverable as “costs.”
(Naiditch
v.
Schaf Home Builders,
Inc.,
160 Ill.
App.
3d 245,
512 N.E.2d
486,
498
(2d
Dist.
1987).)
The
Board
finds
that
DuPage’s
affidavit
of
hearing
costs
improperly seeks reimbursement for attorneys’
fees and for expert
witness
fees
for testifying
or merely being present
at hearing.2
DuPage’s affidavit departs from prior affidavits of hearing costs
submitted in Administrative Citation Docket B proceedings where the
Agency or unit of local government
(see, Bi-State Disposal,
Inc.,
AC 88-33 Docket B
(February 23,
1989)
has been reimbursed for the
travel expenses of their attorney and inspector.
Therefore, DuPage
2Although
Steven
K.
Dunn,
landfill
inspector
for
DuPage,
testified at
the December
8,
1988
hearing,
Keith
Trychta,
field
inspector, was merely present at the hearing.
lñS—71
6
is directed to resubmit its affidavit of hearing costs consistent
with this Order.
IT IS SO ORDERED.
Board Member
J. Anderson dissented.
Board Members J. Marlin and J. Theodore Meyer concurred.
I,
Dorothy M.
Gunn,
Clerk of the Illinois Pollution Control
Board hereby certify that the above Order was adopted on the
day of
_________________,
1990 by a vote of
______________
Dorothy M.
Gunn,
Clerk
Illinois Pollution Control Board