ILLINOIS POLLUTION CONTROL BOARD

August 24,

1995

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Complainant,

V.

)

AC 94—73

(IEPA No.

415—94—AC)

STACY B. HESS

)

(Administrative Citation)

)

Respondent.

CONCURRING OPINION

(by J. Theodore Meyer):

I concur with the majority’s opinion and order in this case;

however,

I believe that attorney’s fees and costs should be

included in all penalties imposed in administrative citations.

Section 42(f)

of the Environmental Protection Act

(Act)

provides that the Board may award costs and reasonable attorney’s

fees in cases brought on behalf of the citizens of Illinois.

(415 ILCS 5/42(f)

(1992)).

This section should be construed

broadly and include administrative citation penalties brought by

the State, or by any unit of local government vested with the

authority to impose such citations, pursuant to Section 4(r)

of

the Act.

The concept of attorney’s fees should include the employer’s

share of federal and Social Security taxes

as well as health

insurance and life insurance.

Attorney’s costs should not only

include direct costs incurred by the individual attorney, but

also indirect costs such as:

travel time, administrative

support,

printing, copying and overhead.

After all, the time and

money spent by complainant’s attorney in prosecuting this matter

certainly could have been used to handle other matters.

Also,

the now common practice by state and local governments of

charging a “user fee” to those who use a service

(such as paying

for photocopies)

is certainly a cost that should be imposed on a

party who has violated the Act.

This case presented an

opportunity for the complainant to submit an affidavit of all

fees and costs,

and

I believe that the Board should have taken

this opportunity to reimburse the Illinois taxpayer.

In this case,

the administrative citation neither requests

the imposition of such costs and fees nor explains whether some

percentage of costs and fees was figured into the penalty.

I

urge the Agency to begin seeking reimbursement in administrative

citations.

---

2

——

J. ~r1i~eodore

Mey~

Boa~Member

I, Dorothy M.

Gunn,

Clerk of the Illinois Pollution Control

Board, hereby certify that the above concurring opinion was filed

on the

~

day of

_____________,

1995.

(I

/

7~.

Dcfrothy M~kGunn,Clerk

Illinois Pollution Control Board