ILLINOIS POLLUTION CONTROL BOARD
May 4,
1995
PEOPLE OF THE STATE OF
)
ILLINOIS,
Complainant,
v.
)
PCB 92—164
)
(Enforcement-Water)
BERNIECE
KERSHAW
and
DARWIN
)
DALE
KERSHAW
d/b/a
KERSHAW
)
MOBILE HOME PARK,
)
Respondents.
SUPPLEMENTAL OPINION OF THE BOARD
(by G.T. Girard):
This matter comes before the Board on its own motion.
On
April
20,
1995, the Board entered its opinion and order upon
reconsideration of the penalty.
Among other things, the opinion
at p.
15 addresses the issue of award of $5,190.69 in costs and
fees to the People.
The third sentence of the first paragraph in
that portion of the opinion recited that:
Kershaws did not respond directly to Complainant’s
May
6,
1993
Affidavit of Costs,
but, instead, responded
that Kershaws’ costs in litigating the attorney
disqualification issue should be a mitigating factor in
the final penalty assessment.
(Resp.
Br. at 19).
(Opinion of 4/20/95,
p.
15)
In making this statement, the Board overlooked a one—page
memorandum filed by the Kershaws on May 13,
1993 which does in
fact directly respond to the affidavit of costs.
In order to
cure this omission, the Board hereby vacates that section of its
Opinion of April 20,
1995 entitled Costs and Fees, and replaces
it with the following discussion.
The Board is not today in any
way modifying its April 20,
1995 order.
COSTS
AND
FEES
In the original Board decision order issued April
8,
1993,
a
Docket B was opened in this proceeding to assess reasonable costs
and fees to complainant as provided in Section 42(f) of the Act.
Complainant filed an affidavit with the Board on May 6,
1993,
which outlined the People’s costs in pursuing this matter.
On
May 13, 1993, the Kershaws filed a one-page memorandum in
opposition.
Additionally, in their October,
1994 brief, Kershaws
argued that their costs
in litigating the attorney
disqualification issue should be a mitigating factor in the final
2
penalty assessment.
(Res.
Br.
at 19.)
The expenses presented by the People total $5,190.69.
(Comp.
Affid.
at 1.)
The major cost categories include:
$1,791.39 for
attorney’s fees;
$3,123.49 for expert witness and consultant
fees;
$58.85 for clerical costs; and $216.96 for other costs.
(Comp. Affid. at 1.)
The Board notes that attorneys’s fees in
the People’s affidavit are charged at rates ranging from 15 to
53
dollars per hour, which is below the reasonable rate of $100 per
hour as determined in a prior Board opinion.
(See,
People v.
Freedom Oil
(May
6,
1994)
PCB 93—59, Stip.
Op. at 11 and
supplemental opinion, People v. Freedom Oil (June
6,
1994)
PCB 3-
59)
The respondents have two specific challenges to the costs.
The first is that:
Complainants claim attorneys’
fees in this matter
dating back to October
2,
1986,
(Affidavit at 2),
and
expert witness/consultant costs as early as August 30,
1981
(~
at 9.)
The Complaint in this matter was not
filed until October 29,
1992.
Preparation of the
complaint, according to the Affidavit, commenced on
December 28,
1991.
~
at 5.
Respondents respectfully
request that no award fees or costs be allowed for work
which predates this proceeding
.
.
.
The state’s
generalized enforcement program costs, unrelated to the
proceeding before the Pollution Control Board,
cannot
be recovered under
S 42(f)
of the Environmental
Protection Act.
(Memo. of 5/13/94, par.
1-3).
Section 42(f)
of the Act does not, by its terms,
limit a
costs and fees award to costs incurred only after the filing of a
complaint.
To the extent that Kershaws are attempting to make a
“statute of limitations” type argument as it relates to costs and
fees,
the Board rejects it as we did the argument as it related
to penalties (see su~ra, pp. 6-7).
The People’s affidavit does
not claim “generalized enforcement program costs”, such as a
portion of its office overhead costs.
Rather, the affidavit
named witnesses/consultants and attorneys who spent time in
specific site inspections, travel, meeting with the Kershaws,
corresponding with the Kershaws and others, drafting and review
of the complaint and other pleadings of this case,
and so on.
The dates of all of the specific listed activities occur within
the time frame covered by the complaint.
The Board is not
persuaded that the People seek costs and fees in excess of those
authorized by Section 42(f).
The Kershaws’ second challenge was that:
it is not “reasonable” to assess costs for seven
attorneys from the Attorney General’s Office to bill on
3
the case on the same day; ~
Affidavit at
6.
(Memo. of
5/13/94, par.
4)
The entry in question is a
.75 hour charge made by each of 7
attorneys for activity which occurred on July 30,
1992 which was
characterized as “Litigation Committee;
review and approval of
complaint”.
The Board does not find it unreasonable for seven
attorneys to meet for 45 minutes to discuss a four count
complaint alleging violation of two sections of the Act and
roughly a dozen regulations, during a time period, covering many
years, beginning May, 1983.
In summary, the Board finds the costs and fees’s claimed by
the People to be reasonable, and will award the Office of the
Attorney General five thousand one hundred ninety dollars and
sixty nine cents
($5,190.69).
Kershaws will be ordered to pay
this sum to the Hazardous Waste Fund, created in Section 22.2 of
the Act, as required by Section 42(f)
of the Act.
This supplemental opinion constitutes the Board’s
supplemental findings of fact and conclusions of law in this
matter.
Board Member J. Theodore Meyer dissented.
I, Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board, here~ycertify the above supplemental opinion was adopted
on the ‘/~ day of
________________,
1995, by a
voteof
~‘/
/1
~
~
Control Board