ILLINOIS POLLUTION CONTROL BOARD

February 4,

1993

SANGAMON

COUNTY,

)

Complainant,

)

AC 92-37,

Docket B

v.

)

(Administrative Citation)

(SCDPH No. 92-AC-12)

GERALD B. MILLER,

)

Respondent.

DISSENTING OPINION

(by J. Theodore Meyer):

I dissent from the majority order

in this matter because

I

believe that the majority should have taken this opportunity to

provide

for

full

recovery

of

all

hearing

costs

incurred

by

complainant and the Board.

Section 42(b) (4) of the Illinois Environmental Protection Act

(Act)

provides

that

in an administrative citation action,

“any

person found to have violated any provision of subsection

(p)

of

Section 21 of this Act shall pay a civil penalty of $500 for each

violation of each such provision, p~usany hearing costs incurred

by the Board and the Agency.”

(Emphasis added.

Ill.

Rev.

Stat.

1989,

ch.

111—1/2, par.

1042(b)(4).)

In the past,

a majority of

the Board has narrowly construed “hearing costs” to include only

the travel

costs

of the complainant’s attorney,

and the Board’s

hearing officer and court reporter costs.

I believe that “hearing

costs”

as

used

in

Section

42

includes

other

expenses

such

as

attorney time, administrative and support staff time, and overhead

costs.

After all,

the time spent

by complainant’s attorney and

Board staff in preparing for and reviewing the hearing could have

been used to handle other matters if the instant hearing had not

been held.

State and local government is now often imposing a series of

“user fees”, on the theory that those who use a service should pay

for

it.

For example, most state agencies

(including the

Board)

charge fees for photocopies

of that agency’s records and

files.

Since those who do not violate the Act are charged such user fees,

I believe that those who have been found to have violated the Act

should

be

assessed

costs

to

the

full

extent

of

the

statutory

authority.

In this case, the Illinois General Assembly has stated

that those found to have violated Section 21(p)

shall pay hearing

costs incurred by the Board and the Agency.

I believe that this

mandate should be given a broad interpretation,

and all reasonable

costs

assessed

against

respondent.

This

case

presented

an

opportunity to order the Clerk of the Board and the complainant to

submit

an affidavit of all hearing costs,

and

I believe that the

Board should have taken this opportunity.

0139-01

I

I

---

2

For these reasons,

I dissent.

/i~~\

~

J. ~heodor~ Meyer

Board

Member

I,

Dorothy

N.

Gunn,

Clerk

of

the

Illinois

Pollution Control

Board,

hereb~y certify

that

the

above

dissenting

opinion

was

filed

on the

Y~-~

day

of

_________________,

1993.

Dorothy M. ~ünn,

Clerk

Illinois PoMution Control Board

0139-0112