ILLINOIS POLLUTION CONTROL BOARD

August

9,

1990

ST. CLAIR COUNTY,

Complainant,

)

AC 89-18,

Docket

B

v.

)

(Administrative Citation)

(County No. 89-1 SC)

J

& F LANDFILL,

INC.,

)

an Illinois corporation,

Respondent.

DISSENTING OPINION

(by 3.

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,

plus any hearing costs incurred

by the Board and the Agency.”

(Emphasis added.

Ill.

Rev.

Stat.

1989,

ch.

111—1/2, par.

l042(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

ti4~~125

---

2

Board should have taken this opportunity.

For these reasons,

I dissent.

~~f~odor~’

Meyer

Board Member

I,

Dorothy

N.

Gunn,

Clerk of the Illinois Pollution Control

Board, he,~~ycertify that the above Dissenting Opinion was

filed

On the

yc~/~

day of

________________,

1990.

/i~~

~

~~J_~/’1

./7~

Dorothy N. ~unn,

Clerk

Illinois Pollution Control Board

I

1

~