ILLINOIS POLLUTION CONTROL BOARD

August

3,

1995

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Complainant,

v.

)

AC 95-44

(IEPA No.

363-95-AC)

ALLIED WASTE INDUSTRIES

)

(Administrative Citation)

OF ILLINOIS,

INC. d/b/a

STREATOR AREA LANDFILL,

INC.

Respondents.

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 attorneyts

fees in cases brought on behalf of

tlie citizens of Illinois.

(415 ILCS

5/42 (f)

(1992))

.

This section should be ccnstrued

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.

In addition

to reasonable attorney’s

fees and costs,

indirect expenses such as travel

time,

administrative support,

printing,

copying

and

overhead

should

also

be

pursued.

After

all,

the

time

spent

by

com~lainan: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

costs,

and

I believe that the Boa~dshould have taken this

opportunity

to reimburse the Illinois Environmental Protection

Agency.

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.

Attorneys’

fees and costs incurred during the administrative

citation process should be pursued on behalf of the Illinois

taxpayer,

and

I urge the parties

t.o bear this

in mind in future

negotiations

in this

case.

---

J

.

~heodore

Meyer

Boh~’rdMember

I, Dorothy M.

Gunn,

Clerk of the Illinois Pollution Control

Board, he~i certify that

,~heabove concurring opinion

was filed

on the

“-

day of

________________/

1995.

7?

Dorothy

M.

~n,

Clerk