ILLINOIS POLLUTION CONTROL BOARD
    May
    7,
    1992
    ILLINOIS ENVIRONMENTAL
    )
    PROTECTION AGENCY,
    )
    Complainant,
    )
    v.
    )
    AC 89-215(Docket B)
    )
    (IEPA No. 9926-AC)
    OMER
    THOMAS,
    )
    (Administrative Citation)
    Respondent.
    ORDER OF THE BOARD
    (by B. Forcade):
    This matter
    comes
    before the Board on an administrative
    citation filed by the Illinois Environmental Protection Agency
    (Agency) pursuant to the Illinois Environmental Protection Act
    (Act).
    (Ill.
    Rev. Stat.
    1987 ch.
    111 1/2, par. 1001 et.
    seq.)
    The citation was filed October 5,
    1989, and alleges that
    respondent, Omer Thomas, the operator of a facility located in
    Shelby County,
    Illinois is in violation of Section 21(q) (1)’ of
    the Act for causing or allowing open dumping of waste that
    results in litter.
    A petition for review was filed with the Board on November
    1,
    1989.
    Hearing was held on July 27,
    1990, and July 19,
    1991.
    On January 23,
    1992,
    the Board issued an opinion and order
    finding that the cited violation had occurred and imposed a
    penalty of five hundred dollars
    ($500.00).
    The Board also
    directed the Clerk of the Board and the Agency to file affidavits
    declaring their hearing costs.
    The Clerk of the Board filed an affidavit stating that the
    Board’s hearing costs were one thousand seven hundred and thirty
    five dollars and seventy cents ($1,735.70).
    The Agency filed its
    motion for leave to file instanter and statement of costs on
    March 23,
    1992.
    The Agency’s motion to file instanter is
    granted.
    The Agency statement of costs asserts that the Agency
    did not have any hearing costs in this matter.
    On April
    6,
    1992,
    Omer Thomas filed an objection to the affidavit of costs from the
    Board.
    Mr. Thomas first contends that the affidavit of costs filed
    by the Clerk of the Board should be stricken and considered of no
    force and effect because
    it was not filed within 30 days as
    Section 21 of the Act was amended by Public Act 87-752,
    effective January
    1,
    1992.
    As a result, the two subsections
    enforceable through the administrative citation process have been
    changed from 21(p)
    and 21(q)
    to 21(0)
    and 21(p)
    respectively.
    I 33—295
    2
    instructed in the Board’s January 23,
    1992 order.
    Mr. Thomas
    further objects to the inclusion of costs from the July 27,
    1990
    hearing,
    which was attended by neither party because the
    complainant was seeking a continuance due to the illness of its
    primary witness.
    Mr. Thomas further objects to the costs from
    the July 27,
    1990, hearing because the charges are grossly
    excessive and insupportable to any extent.
    Mr. Thomas also
    contends that the hearing officer’s charges relating to the July
    19,
    1991, hearing are excessive and outrageous.
    Mr. Thomas
    contends that the hearing officer’s charge for a full day of
    hearing for a hearing that took two hours and required two hours
    of travel time
    is outrageous.
    Mr. Thomas also argues that the
    hearing officer’s charge for miscellaneous services is not
    supported by the record and should be itemized.
    The Board will accept and consider the Clerk’s affidavit of
    costs as filed.
    The Board believes that no prejudice has
    resulted from the late filing of the affidavit.
    The affidavit
    was received by the Board before Docket B was closed, respondent
    was provided with adequate time to respond to the affidavit and
    has filed an objection to the affidavit.
    The July 27,
    1990 hearing was not attended by either party
    due to the pending request by the Agency for a continuance.
    The
    attorney for the Agency informed Mr. Thomas’s attorney that the
    hearing would not proceed as scheduled due to the illness of the
    Agency’s witness.
    The Agency attorney further informed him that
    he would contact everyone to let them know.
    The Agency attorney
    did not contact the hearing officer but did leave a message
    requesting a continuance.
    The Board notes that the Agency
    attorney lacked the authority to instruct the respondent not to
    appear at the hearing and respondent was not obligated by his
    agreement to not appear at the scheduled hearing.
    The Board’s
    procedural rules require that all motions be made in writing
    unless orally made at hearing.
    (Section 101.240(a).)
    While the
    Agency did submit a written request for continuance,
    it was not
    received by the Board until July 30,
    1990,
    three days after the
    scheduled hearing.
    The Agency failed to request the continuance
    in time for the hearing to be cancelled.
    While these hearing costs were necessary,
    the Board agrees
    with Mr. Thomas that it was the responsibility of the Agency to
    cancel the hearing in time.
    The Board agrees with Mr. Thomas’s
    contention that he should not be required to pay the charges
    associated with the hearing on July 27,
    1990.
    Mr. Thomas will
    not be required to pay the costs associated with the July 27,
    1990 hearing because the continuance was at the request of the
    Agency.
    The costs associated with the July 27,
    1990 hearing
    amount to $959.20 which will be deducted from the total amount on
    the affidavit.
    Therefore,
    the appropriateness of these costs are
    not at
    issue.
    1
    3—2)6
    3
    The hearing costs related to the July 19,
    1991 hearing are
    of the type normally and consistently imposed by the Board.
    Hearing costs may exceed the amount of the penalty,
    (EPA
    V.
    Curtis A. Newlan (December 6,
    1991), AC 91-40), and average from
    $200 to $1000.
    (EPA v. Dennis Grubaugh
    (February 27,
    1992), AC
    92-3.)
    The Board finds the charges related to the hearing on
    July 19,
    1991, and the charges of the hearing officer
    appropriate.
    Therefore,
    the total hearing cost to be assessed against the
    respondent
    is seven hundred seventy—six dollars and fifty cents
    ($776.50).
    ORDER
    1.
    It is hereby ordered that within 30 days of the date of
    this order, Omer Thomas 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 $776.50 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.
    Respondent shall write the case name, case 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 pursuant to Section 42(g) of the Illinois
    Environmental Protection Act.
    2.
    This docket is hereby closed.
    IT IS SO ORDERED.
    J.
    T. Meyer dissented.
    Section 41 of the Environmental Protection Act
    (Ill. Rev.
    Stat.
    1991 ch.
    111 1/2, par.
    1041)
    provides for appeal of final
    orders of the Board within 35 day~. The Rules of the Supreme
    Court of Illinois establish filing requirements.
    133—297
    4
    I, Dorothy M. Gunn,
    Clerk of the Illinois Pollution Control
    Board, hereby certify that the above order was adopted on the
    __________
    day of
    ________________,
    1992,
    by a vote of
    ~.
    /~L-~(-~J
    ‘Dorothy M.
    Gui’~n, Clerk
    Illinois Pol~1~tionControl Board
    133—298

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