ILLINOIS POLLUTION CONTROL BOARD
December 7,
1995
COUNTY OF WILL,
)
)
Complainant,
)
v.
)
AC 94—98
AC 95—1
CDT
LANDFILL
CORP.,
)
AC 95-2
(Administrative Citation)
Respondent.
)
(WC 94AC2, WC
94AC3,
WC 94AC5)
DISSENTING OPINION (by J. Theodore Meyer):
I dissent from today’s opinion and order because I disagree
with the Board’s reliance on the Miller case.
There, the
Appellate Court found that attorney fees and ordinary expenses of
litigation cannot be recovered by the prevailing party of an
administrative citation, absent a statute or contract to the
contrary.
(Miller v. Pollution Control Board,
267 Ill.App.3d
160,
642 N.E.2d 475
(4th Dist.
1994).)
The Court reasoned that
“no specific language appears in section 42(b)
(4)
of the
~Il1tnois Environmental Protection) Act authorizing the award of
attorney fees”, therefore a county’s attorney’s fees cannot be
included as hearing costs.
(~
at 173,
642 N.E.2d at 485.)
In fact, Section 42(f) does allow the Board to assess
attorney’s fees and costs incurred by the State’s Attorney of the
county in which the violation occurred.
(415 ILCS
5/42(f)(1994).)
Contrary to the Court’s dicta in Miller,
I
believe this section should be construed broadly,
and that a
violator reimburse the Illinois taxpayer for all costs incurred
by the county,
including indirect expenses such as travel time,
administrative support,
printing, copying and overhead.
After
all, the time spent by complainant’s attorney in prosecuting this
matter certainly could have been used to handle other cases.
The same reasoning should be applied to hearing costs so
that all costs incurred by the Board and the county in which the
hearing was held can be recovered.
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
method of imposing costs that should be employed in
administrative citations.
For these reasons,
I respectfully dissent.
J
Theodore Meyer
Bo rd Member
I, Dorothy N. Gunn,
Clerk of the Illinois Pollution Control
Board,
hereby certify that
above dissenting opinion was filed
on the
________
day of
1996.
I
Control Board