ILLINOIS POLLUTION CONTROL BOARD
October 21,
1993
SANGANON
COUNTY
DEPARTMENT
OF
)
PUBLIC
HEALTH,
)
)
Complainant,
)
AC 92—79
v.
)
Docket B
)
(Administrative Citation)
LEE HSUEH
(SPRINGFIELD/HSUEH)
)
(SCDPH—92-AC-20)
)
Respondent.
ORDER OF THE BOARD
(by B.
Forcade):
This matter comes before the Board on “Motion to Reconsider”
filed on October
1, 1993 by the Sangamon County Department of
PublIc Health (Sangamon County).
Sangamon County seeks
reconsideration of the Board’s August 26,
1993 order.
On July 1,
1993,
the Board found,
in Docket A of this
appeal, Mr. Lee Hsueh in violation of section 21(p) (1)
of the
Environmental Protection Act (Act).
(415 ILCS 5/21(p) (1)
(1992).)
The Board imposed a penalty of $500 against Mr. Hsueh for this
violation and also ordered him to pay hearing costs.
The Board
instructed the Clerk of the Board and Sangamon County to submit
affidavits of hearing costs.
On July 12,
1993,
Sangainon County
filed an affidavit of costs claiming $250.00 in attorney fees and
$55.00 in witness fees.
In its August 26,
1993 order the Board
found that the costs in the affidavit submitted by Sangamon
County did not represent recoverable hearing costs and ordered
Sangamon County to resubmit its affidavit of costs.
Sangamon
County requests the Board to reconsider this order which found
the costs claimed by Sangamon County were not recoverable.
In its motion for reconsideration, Sangamon County contends
that it” was denied an opportunity to argue its position on
hearing costs before the Board.
Sangamon County also argues that
the affidavit as submitted is similar to affidavits submitted by
Sangamon County in other administrative citation proceedings in
which the costs have been awarded.
The recovery of costs is entirely dependent on statutory
authorization.
(Ritter v.
Ritter
(1943)
381 Ill.
549,
552, 46
N.E. 2d 41, Wintersteen
V.
National Cooperage
& Woodenware Co.
(1935),
361 Ill.
95,
108,
197 N.E. 578.)
Section 42(b)(4)
of the
Act specifies the penalty to be applied to administrative
citations as a “penalty of $500 for each violation of each such
provision, plus any hearing costs incurred by the Board or the
Agency.”
The Board has previously held that units of local
government bringing an administrative citation were also entitled
to recover hearing costs because the unit of local government was
2
acting on behalf of the Agency pursuant to the delegation
provision of Section 4(r) of the Act.
(In the Matter of: Bi—State
Disposal.
Inc.,
(February 23,
1989), AC 88—33.)
While the Act does not define “hearing costs” the Board has
addressed the issue of which costs are recoverable in other Board
opinions.
Although Section 42(b)(4)
of the Act does not
define “hearing costs,” the term “costs” has z’cquired a
fixed and technical meaning in the law.
“Costs are
allowances in the nature of incidental damages awarded
by law to reimburse the prevailing party,
to some
extent at least,
for the expenses necessarily incurred
in the assertion of his rights in court.”
(Galowich
V.
Beech Aircraft Corp.,
92 Ill.
2d 157,
441 N.E.2d 318,
321
(1982).)
“A successful litigant, however,
is not
entitled to recover the ordinary expenses of litigation
and trial preparation, and only those items designated
by statute to be allowable can be taxed as costs.”
~
441 N.E.2d at 322.)
Attorneys’
fees are separate
and distinct from costs and are not recoverable as
such.
(Meyer v.
Marshall,
62
Ill.
2d 435,
343 N.E. 41
(1943)
(~J~);
Ritter v.
Ritter, 381 Ill. 549 46 N.E.
2d
41
(1943).)
Additionally, an expert witness’ fees for
testifying are not recoverable as “costs.”
(Naiditch v.
Schaf Home Builders, Inc.,
160 Ill. App. 3d 245,
512
N.E.2d 486,
498 ~j~)(2dDist.
1987).)
County of DuPage v.
E
& E Hauling,
Inc.
(February 8,
1990),
AC 88—76, AC 88—77.)
The Board also notes that the Act allows the Board to “award
costs
arid reasonable attorney’s fees” to the State’s Attorney or
Attorney General against a person who has committed a wilful,
knowing or repeated violation.
(415 ILCS 5/42(f)
(1992).)
The
Board interprets the language of this section to indicate that
the legislature views costs and attorney’s fees as separate
items.
Further, the Board construes the language of the statute
to indicate that where the legislature allowed for the recovery
of “hearing costs” in administrative citations it did not Intend
to include attorney’s fees as part of the hearing costs.
The Board is not persuaded by the arguments presented by
Sangamon County.
The Act provides for the recovery of hearing
costs
in general terms and does not specify which costs are
considered “hearing costs”.
In administrative citations the
Board orders the Agency or the unit of local government to submit
an affidavit specifying the costs incurred at hearing.
The
respondent may contest the costs by the filing of a reply or
objection.
The Board does not typically conduct a separate
hearing on the issue of costs.
Any arguments concerning the
costs can be presented in the affidavit,
the objection or a reply
3
to the objection.
Sangamon County contends that it was denied procedural due
process in that it was not provided an opportunity to argue its
position as to costs before the Board.
In filing this motion for
reconsideration Sangamon County was able to present its arguments
on hearing costs to the Board.
In addition,
Sangamori County
could have requested a hearing to be held but no such request was
made by Sangamon County.
Sangamon County contends that section 47 of the Fees and
Salaries Act provides that every witness attending in any county
upon trials in the courts shall be entitled to receive the sum of
$20.00 for each day of attendance.
(55 ILCS 45/47
(1992).)
However, this provision does not explain the $55.00 costs claimed
as witness fees in Sangamon’s affidavit.
Sangamon County called
one witness and the hearing was one day.
According to section 47
of the Fees and Salaries Act the amount to be paid to one witness
for appearing one day would be $20.00.
The Board finds this
amount to be distinguishable from “expert witness fees” which
have been determined not to be recoverable as costs.
(See
Naiditch v.
Schaf Home Builders,
Inc.
(2d Dist.
1987),
160 Ill.
App.
3d 245, 512 N.E.2d 1027,
1040.)
Any witness appearing is
entitled to the payment of the $20.00 fee as compensation for
attending as a witness under the Fees and Salaries Act.1
The
Board finds that a $20 fee is reasonable to compensate the
witness for any incidental expenditures that the witness may have
incurred due to appearing as a witness.
Further, the Board is not persuaded by Sangamon County’s
claim that similar costs have been allowed in other
administrative citations.2
Even if similar costs were previously
allowed by the Board such costs are clearly inconsistent with the
Board’s prior holdings concerning recoverable hearing costs.
In
the cases specified by Sangamon County the Board did not provide
any reasoning why the costs were allowed.
A review of the cases
referenced by Sangamon County leads the Board to conclude that
these costs were allowed in error and not intended to modify the
Board’s prior holdings concerning the recovery of attorney’s
Section 101.260 of the Board’s procederal rules allows for
payment of witness fees to a subpoenaed witness in accordance with
the Fees and Salaries Act.
(35 Ill. Adm Code 101.260.)
2
The
Board
notes
that
there
are
differences
in
the
affidavits submitted in the prior cases and the affidavit submitted
in the present case.
In Sanganion County v. Delmar Donley (December
3,
1992), AC 92-48 and Sangainon County v. Gerald Miller
(June
3,
1992),
AC 92—37,
the fee for witnesses was equivalent to $20 per
witness.
4
fees.
The Board will not exacerbate such errors by continuing to
allow the recovery of costs that are inconsistent with prior
holdings.
As Sangamon County did not submit
a revised affidavit, the
Board will assume that there are no additional costs that were
incurred by Sangamon County.
The Board will adjust the costs in
the affidavit in accordance with the above.
The Board will not
order Mr. Hsueh to pay the attorney’s fee and will reduce the fee
for the
witness to $20.00.
Therefore, the total costs incurred
by Sangamon County
is twenty dollars ($20.00).
The Clerk of the Board filed its affidavit of costs on July
12,
1993 in the amount of one thousand three hundred four dollars
and twenty—five cents ($1304.25).
Therefore, the total hearing
cost to be imposed against the respondent is one thousand three
hundred twenty-four dollars and twenty-five cents
($1324.25).
ORDER
1.
It is hereby ordered that within 30 days of the date of
this order, Lee Hsueh 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 one
thousand three hundred four dollars and twenty—five cents
($1304.25)
which is to be sent by First Class mail to:
Illinois Environmental Protection Agency
Fiscal Services Division
2200 Churchill Road
P.O. Box 19276
Springfield, IL 62794—9276
2.
It is hereby ordered that within 30 days of the date of
this order, Lee Hsueh shall,
by certified check or money
order payable to the County of Sangamon, pay as compensation
for hearing costs incurred by the County of Sangamon, the
amount of twenty dollars
($20.00) which is to be sent by
First Class mail to:
James
D. Stone,
Director
Sangamon County Department of Public Health
200 South Ninth, Room 301
Springfield,
II 62701
3.
Respondent shall write the case name and number and social
security or federal Employer Identification Number on the
certified check or money order.
Penalties unpaid after the due date shall accrue interest
5
pursuant to Section 42(g) of the Illinois Environmental
Protection Act.
4.
This docket is hereby closed.
IT IS SO ORDERED.
J.
T. Meyer dissented.
Section 41 of the Environmental Protection Act,
(415 ILCS
5/41
(1992)), provides for appeal of final orders of the Board
within 35 days.
The Rules of the Supreme Court of Illinois
establish filing requirements.
(See also 35 Iii. Adm. Code
101.246, Motions for Reconsideration.)
I, Dorothy N. Gunn, Clerk of the Illinois Pollution Control
Board,
hereby certify that ~theabove order was adopted on the
(~
/
/j-’~
day
of
,
1993,
by
a
vote
of
~
~u.
Dorothy N.
9t1’ln, Clerk
Illinois Po~1XutionControl Board