ILLINOIS POLLUTION CONTROL BOARD

June

7,

1990

ST. CLAIR COUNTY,

Complainant,

v.

)

AC 89—18

(Dockets A

&

B)

(Administrative Citation)

3

&

P. LANDFILL,

INC.,

)

County No.

89—i

SC

An Illinois Corporation,

Respondent.

ORDER OF THE BOARD

(by J. Marlin):

This matter comes

before the Board on a Petition for

Reconsideration and Clarification filed by 3

& R Landfill,

Inc.

(“3 & R”)

on May

17,

1990.

The motion requests that

the Board

reconsider

its finding

that “erosion gullies

in final cover

portions

of landfill are subject to daily cover administrative

citation charges as

set forth

in Section

21(p)

of the Act.’

The motion notes

that this issue was thoroughly debated

by

the Board and led to the filing of several dissents,

was amatter

of first

impression and may represent

a departure from past

practices.

A portion of the motion questions the Board’s ability

to decide this particular

issue because

it hinges upon close

questions of

fact and

law.

The motion also opines that “the~

dissenters

really have the better of the argument.”

The Board has already, as

the respondent points out,

considered

these matters long and carefully.

The Board sees

little

in

3

& P.s arguments,

or its opinions, which requires the

Board to reconsider

these matters.

Therefore,

J

& R’s petition

for reconsideration

is denied.

The second issue

raised

in 3

& R’s pleading

is its request

for clarification concerning hearing costs.

In addition to the

arguments contained

in

the instant motion, J

&

P. filed

its

Objections

to Affidavit of Costs on June

4,

1990.

The affidavit,

3

&

P. claims, unfairly assesses all hearing

costs against

respondent

when 3

&

P. was found liable on only half of the

charges brought against

it.

3

& R claims

it should

therefore be

made responsible for

no more than one—half the hearing costs.

J

& P.s argument

is not

new.

In our decision in

In the

Matter of:

Pielet Brothers’

Trading,

Inc.,

—

PCB

—,

AC 88—51(B)

(September

13,

1989)

we held:

Whether

or

not

a

person

prevails

upon

an

issue

is

irrelevant

to

the

assessment

of

112—45

---

—2—

costs against

a Respondent

when

a

finding of

violation

of

any

provision

of

Section

21(p)

or

(q) has been found.

We think

our analysis

in that opinion was well reasoned and

decline to alter

that

judgment now.

Regarding 3

& R’s request

to have the Board clarify which

sort of hearing costs are allowed,

the Board fully discussed this

matter

in its decision in County of DuPage

v.

E

& E Hauling,

Inc.

—

PCB

—,

AC 88—76, 88—77

(Docket B)

(February

8,

1990).

To the

extent that reiteration of our prior decision “clarifies” our

holding

in

this matter, we offer

it

to both parties.

There we

held that the term “costs”

has acquired a fixed and technical

meaning in the

law.

Costs are not the ordinary expenses of

litigation, we said,

but

in the nature of

incidental damages

awarded by

law.

In

E

& E Hauling,

therefore,

we declined

to

grant the county reimbursement for expert witness

fees or

for

those witnesses merely present at hearing

but who did not

testify.

j

&

P.

is

free

to

file any objection that

it wishes once

the County has submitted its costs.

We fully

trust

that the

County will exhibit good faith

in doing so.

We believe, however,

that any decision of ours

as

to whether certain costs are

recoverable, outside of the above, would be premature.

Respondent 3

& R’s motion to clarify and its objection

to

affidavit of costs are,

therefore, denied.

IT

IS SO ORDERED.

Board Members J.D.

Dumelle and 3. Anderson dissented.

I,

Dorothy M.

Gunn, Clerk of the Illinois Pollution Control

Board, hereby certify

t

t the above Order was adopted on

the

~

day of

_______________,

1990,

by a vote

of

~.

Dorothy

M.

‘7~inn, Clerk

Illinois Po~’lutionControl

Board

112—46