ILLINOIS POLLUTION CONTROL BOARD
    March 22, 1990
    ILLINOIS ENVIRONMENTAL
    )
    PROTECTION AGENCY,
    )
    )
    Complainant,
    AC 89-138, Docket B
    v.
    )
    (Administrative Citation)
    )
    (IEPA No. 9696-AC)
    DR. JOHN DONOVAN,
    )
    Respondent.
    DISSENTING OPINION
    (by J. Theodore Meyer):
    I dissent
    from the majority order
    in this matter because
    I
    believe that the majority should have taken
    this opportunity to
    provide
    for
    full
    recovery
    of
    all
    hearing
    costs
    incurred
    by
    complainant and the Board.
    Section 42(b) (4) of the Illinois Environmental Protection Act
    (Act)
    provides
    that
    in
    an
    administrative
    citation
    action,
    “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 the Agency.”
    (Emphasis added.
    Ill.
    Rev.
    Stat.
    1987,
    ch.
    111—1/2,
    par.
    l042(b)(4).)
    In the past,
    a majority of
    the Board has narrowly construed
    “hearing costs” to include only
    the
    travel
    costs
    of the complainant’s attorney,
    and the Board’s
    hearing officer and court reporter costs.
    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 time
    spent by
    complainant’s attorney and
    Board staff
    in preparing for and reviewing the hearing could have
    been used to handle other matters
    if the instant hearing had not
    been held.
    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 user 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.
    This
    case
    presented
    an
    opportunity to order the Clerk of the Board and the complainant to
    submit an affidavit of all hearing costs, and
    I believe that the
    109-5S1
    2
    Board should have taken this opportunity.
    For these reasons,
    I dissent.
    J
    .
    ~heodore jMeyer
    Boa*d Member
    I,
    Dorothy N.
    Gunn,
    Clerk of the Illinois Pollution Control
    Board, hereby certify that the above Dissenting Opinion was filed
    on the
    .
    -.
    day of
    ___________________
    ,
    1990.
    Dorothy N.
    Cunn, Clerk
    Illinois Pollution Control Board
    109—582

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