ILLINOIS POLLUTION CONTROL BOARD

July 11,

1991

PEOPLE OF THE STATE

)

OF ILLINOIS,

Petitioner,

v.

)

PCB 89—157(A)

&

(B)

(Enforcement)

CLYBOURN METAL FINISHING

)

COMPANY,

Respondent.

CONCURRING OPINION

(by J. Theodore Meyer):

I

agree

fully

with the

opinion

and

order

issued

by

the

majority in this case.

I concur only to articulate some additional

considerations.

As the majority points out, Section 42(f) of the Environmental

Protection Act (Act) allows the Board, under certain circumstances,

to

award

“costs

and

reasonable

attorney’s

fees,

including

the

reasonable

costs

of

expert

witnesses

and

consultants...”.

I

believe that “costs” should include all actual costs.

In the past,

in administrative

citation

cases,

a majority

of the

Board

has

narrowly construed the phrase “hearing costs” to include only the

travel costs of the complainant’s attorney.

(~

County of DuPage

v.

E

&

E Hauling,

Inc., AC 88-76(B)

and AC 88—77(B), February 8,

1990; Illinois Environmental Protection Agency v. Land & Lakes Co.,

AC 89-292(B), August 30, 1990 (Dissenting Opinion,

J.

T. Neyer).)I

believe

that

“costs”

as used

in

Section

42(f)

includes

other

expenses

such

as

administrative

and

support

staff

time,

and

overhead costs.

After all, the tii~espent by complainant’s staff

in prosecuting

this

case could have been used to

handle

other

matters.

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 committed a willful, knowing, or repeated

violation

of

the

Act

are

liable

for

“costs

and

reasonable

attorney’s fees”.

I believe that this mandate should be given a

broad

interpretation,

and

all

actual

reasonable

costs

assessed

against respondent.

This case presents an opportunity to fully

124—23

---

2

utilize the statutory provision.

I urge the Attorney General to

submit an

affidavit setting

forth

all

of the

actual

costs

and

attorney’s fees incurred during prosecution of this case.

For these reasons,

I concur.

J. ‘4Pheodore Meyer

Board Member

I, Dorothy M.

Gunn,

Clerk of the Illinois Pollution Control

Board, her~ycertify tha

he above Concurring Opinion was filed

on the

/j~

~i~-

day of

~

,

1991.

(7

~76~~

~.

~Dorothy

N. ~nn,

Clerk

Illinois Po1~utionControl Board

124—24