ILLINOIS POLLUTION CONTROL BOARD

December 7,

1995

COUNTY OF WILL,

)

)

Complainant,

)

v.

)

AC 94—98

AC 95—1

AC 95—2

CDT LANDFILL CORP.,

)

(Administrative Citation)

(WC 94AC2, WC 94AC3, WC 94AC5)

Respondents.

MS. CYNTHIA CAMPBELL, ASSISTANT STATE’S ATTORNEY, APPEARED ON

BEHALF

OF

COMPLAINANT;

SCOTT

HOSTER, APPEARED ON BEHALF OF RESPONDENT.

OPINION

AND

ORDER OF THE BOARD

(by

3.

Yi):

On December 5,

1994 and January

3,

1995 the County of Will

(County), pursuant to authority delegated to the County under

Section

4 of the Environmental Protection Act

(Act)

by the

Illinois Environmental Protection Agency (Agency),

filed three

administrative citations pursuant to Section 31.1 of the Act.

(415 ILCS 5/4 and 5/31.1

(1994).)

The first citation filed on

December 5,

1994, docketed as AC 94-98,

alleges that CDT Landfill

Corp.

(CDT Landfill) violated Section 21(0) (9)

of the Act.

(415

ILCS 5/21(o)(9)

(1994).)

On January

3,

1995,

the County filed

two separate administrative citations, docketed as AC 95—1 and

95-2 alleging violations of Sections 21(0) (9) and 21(0) (11) of

the Act, respectively.

(415 ILCS 5/21(o)(11)

(1994).)

The Clerk

of the Board received three petitions for review of the

administrative citations on January 11,

and February

6 and 7,

1995 filed by the CDT Landfill.

On October 5,

1995 in our interim opinion and order we found

that the County had demonstrated that CDT Landfill violated

Sections 21(o) (9)

and

(o) (11) of the Act as alleged in AC 95-1

and AC 95-2 and that these violations were not the result of

uncontrollable circumstances.

Additionally, the Board found that

CDT Landfill did not violate Section 21(0) (9)

of the Act as

alleged in AC 94-98.

Penalties in administrative citation actions are prescribed

by Section 42

(b) (4)

of the Act which states:

In an administrative citation action under Section 31.1 of

this Act, any person found to have violated any provision of

subsection

(p) of Section 21 of this Act shall pay a civil

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2

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,

1979,

as amended;

(415 ILCS 5/42(b)(4)

(1994).)

Since the Board found two such violations, the penalty to be

imposed against respondent is $1000.00 plus hearing costs.

The interim opinion and order requested affidavits from the

Clerk of the Board and the County to determine the hearing costs.

On October 27,

1995, the County filed an affidavit stating that

its hearing costs associated with AC 95-1 and AC 95-2 are as

follows.

In preparing administrative citations 95—1 and 95—2,

the County landfill inspector expended 10 hours of time.

In

preparing his testimony and attending the hearing, the inspector

expended 11 hours of time

($34.00 per hour), which includes

benefits

(35

of hourly rate),

for a total cost of $714.00.

Mr.

Frank Kalisik,

a County inspector,

in inspecting the landfill and

preparing administrative citations 95-1 and 95-2, Mr. Kalisik

expended 11 hours.

In preparing his testimony and attending the

hearing, Mr. Kalisik expended 18 hours of time.

Mr. Kalisik’s

hourly rate of pay is $18.00, which includes benefits

(35

of

hourly rate).

The total cost of Mr. Kalisik’s services in this

matter is $522.00.

Cynthia Campbell is a licensed attorney with

5 years of experience and an Assistant State’s Attorney for the

County.

In preparing administrative citations 95-1 and 95-2,

preparing for hearing and representing the County at the hearing,

Ms. Campbell expended 25 hours of time.

Her hourly rate is

$20.00, which includes benefits

(35

of hourly rate)

for a total

cost of $500.00.

Lorean Likavec is a secretary for Waste

Services.

In preparing administrative citations 95—1 and 95-2,

she expended

9 hours of time.

Her hourly rate is $13.00, which

includes benefits

(35

of hourly rate).

The total cost of Ms.

Likavec’s services in this matter is $117.00.

Waste Services

also incurred postage expense of $17.00 and reproduction expense

of $20.00.

The total costs and expenses incurred by the County

was one thousand eight hundred ninety dollars

($1890.00).

On October

18,

1995 the Clerk of the Board filed its

affidavit stating that the costs to hold the hearing for the

three administrative citations are as follows $120.00

($24.00 per

hour for 5 hours) court reporter attendance fee, $1168.50

(4.75

per page of transcript for 246 pages)

and $10.00

(20.00 per hour

for

½

hour)

for court reporter travel time for the total of one

thousand two hundred ninety eight dollars and fifty cents

($1298.50).

The respondent did not file a response to the

affidavits concerning the hearing costs pursuant to the Board’s

October

5,

1995,

interim opinion and order.

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3

DISCUSSION

The Board finds,

pursuant to Miller v. Pollution Control

Board,

204 Ill. Dec.

774,

642 N.E.2d 475, that the requested

hearing costs from the County for the time spent in preparation

of administrative citations 95—1 and 95—2 which included the

preparation for testimony, attending the hearings, the time spent

inspecting the landfill by its employees and the attorney costs

are not reimbursable hearing costs.

The court in Miller stated

“only

those items designated by statute may be allowed as

costs, and attorney fees are ‘not of that character’.”

(Id.

at

485.)

Additionally, the court stated that

“...

a County

employee, employed for the purpose of inspecting property and

issuing administrative citations,

should not receive a witness

fee for testifying against the respondent to an administrative

citation issued by that employee”, and that the fee for

“preparation and mailing of documents” should be reduced to the

cost of mailing the administrative citation.

(~J

The court

was silent as to whether reproduction costs associated with the

preparation of the administrative citation are recoverable costs,

but does state that “...expense incurred in the preparation of

the documents is not, however, recoverable as

‘costs’.”

(Id.)

The Board concludes that reproduction expense is a cost

associated with preparation of the documents and therefore not

reimbursable as hearing costs.

(Id.)

Therefore, the total

hearing costs requested by the County that will be reimbursed is

seventeen dollars ($17.00) which was the cost of mailing the

administrative citations.

The Board finds that the costs included in the affidavit by

the Clerk of the Board are reasonable hearing costs for the three

administrative citations.

The contract under which the Board

employs the court reporters for the Chicago area was entered into

pursuant to the Illinois Purchasing Act

(30 ILCS 505/1 et.

seq.

(1994).) and represents the actual cost for the court reporting

services.

However,

since the Board found that CDT Landfill was

not in violation as alleged in one of the administrative

citations, AC 94-98, we will reduce the Board’s hearing costs by

one third.

Therefore, the Board will only assess a total amount

of eight hundred sixty-five dollars and sixty-seven cents

($865.67) as hearing costs in this matter.

This opinion constitutes the Board’s findings of fact and

conclusions of law in this matter.

ORDER

1.

Respondent is hereby found to have been in violation of 415

ILCS 5/21(0) (9) and

(0) (11) (1994)

on December 15,

1994 and

November 23,

1994, respectively, for the reasons expressed

in the Board’s interim opinion and order of October

5,

1995.

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4

2.

Within 45 days of this Order Respondent shall, by certified

check or money order, pay a civil penalty,

if not already

paid,

in the amount of one thousand seventeen dollars

($1,017) payable to the County of Will, which shall be sent

by First Class mail to:

County of Will

Land Use Department

501 Ella Avenue

Joliet, Illinois 60433

3.

It is hereby ordered that within 45 days of the date of this

order, respondent shall, by certified check or money order

payable to the State of Illinois, designated for deposit to

the General Revenue Fund, pay as compensation for hearing

costs incurred by the Board, the amount of eight hundred

sixty-five dollars and sixty-seven cents

($865.67) which

shall be sent by First Class mail to:

Illinois Environmental Protection Agency

Fiscal Services Division

2200 Churchill Road

P.O. Box 192756

Springfield, IL 92794—9276

4.

Respondent shall write the case name and number and social

security or federal Employer Identification Number on each

certified check or money order.

5.

Penalties unpaid after the due date shall accrue interest

pursuant to Section 42(g)

of the Illinois Environmental

Protection Act.

6.

This docket is hereby closed.

IT IS SO ORDERED.

Board members Marili McFawn and J.Theodore Meyer dissented.

Section 41 of the Environmental Protection Act (415 ILCS

5/40.1) provides for the appeal of final Board orders within 35

days of service of this decision.

The Rules of the Supreme Court

of Illinois establish filing requirements.

(But see also,

35

Ill.

Adm. Code 101.246, Motions for Reconsideration.)

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5

I, Dorothy M. Gunn,

Clerk of the Illinois Pollution Control

Board, hereby certify that the abov~opinion and order was

adopted on the

_______

day of

~t~2~A~/

,

1995,

by a

vote of

~L_~~:;?

Dorothy

Illinoi

Control Board