ILLINOIS POLLUTION CONTROL BOARD
April 22,
1993
SANGAMON COUNTY,
Complainant,
AC 92—37
v.
)
DocketA&B
)
(Administrative Citation)
GERALD B.• MILLER,
)
(SCDPH 92-AC-12)
Respondent.
ORDER OF THE BOARD
(by B. Forcade):
On February 22,
1993, the Board recejved a letter from
Robert L.
Smith, Assistant State’s Attorney for Sangamon County.
Mr. Smith seeks clarification from the Board as to the
designation of the payee of the hearing costs in its February 4,
1993 order.
In a March 11, 1993 order, the Board construed the
letter from Mr. Smith as a motion for reconsideration and
instructed Mr.
Smith and the Environmental Protection Agency
(Agency) to submit briefs on the issue by April
2,
1993.
On
March 12,
1993,
Sangamon County filed a motion for
reconsideration of the payee of the hearing costs designated in
the Board’s February 4,
1993 order.
Sangamon County filed its
brief on the issue of the payee of the hearing costs on April
1,
1993.
The Agency filed its brief on April 20,
1993 along with
a
motion to file the brief instanter.
The Agency’s motion ~to file
instanter is granted.
Also before the Board is a “Motion for Stay of Orders” filed
on March 15,
1993 by Gerald Miller, requesting a stay of the
Board’s December 17,
1992 and February 4,
1993 orders.
Sangalnon
County filed its response~to the motion on March 22,
1993.
The December 17, 1992 order found Mr. Miller in violation of
the Act, ordered the payment of a $500.00 penalty, closed docket
A and opened docket B to determine the amount of hearing costs to
be paid.
Payment of the $500.00 penalty was to be made within 45
days of the order or by February
1,
1993 to Sangamon County.
On
February 4,
1993, the Board determined that the total amount of
hearing costs in this matter was $952.25 and ordered Mr. Miller
to make payment within 30 days or by March 6,
1993 to the General
Revenue Fund.
Both orders noted that any payment not made within
the prescribed time would incur interest at the rate set forth in
the Illinois Income Tax Act unless payment of the penalty has
been stayed during the pendency of an appeal.
In its March
11,
1993 order the Board stayed the payment of the hearing costs by
Mr. Miller until after resolution of the motion for
reconsideration.
2
The Board will first address the issues relating to the
motion for reconsideration and then rule on Mr. Miller’s motion
for stay.
Sangamon County in its motion for reconsideration,
argues
that the $90.00
in hearing costs incurred by the county should be
paid to Sangamon County.
Sangamon County contends that pursuant
to 42(f)
of the Environmental Protection Act
(Act)
(415 ILCS
5/42(f)
(1992)’)
any funds collected under this subsection where
a State’s Attorney has prevailed shall be retained by the county
in which he serves.
The Board finds that Section 42(f)
of the Act does not
pertain to administrative citations.
Section 42(f)
allows for
the recover of costs and reasonable attorney fees where a person
has committed a wilful, knowing or repeated violation of the Act.
The recovery of hearing costs associated with an administrative
citation is provided by SeOtion 42(b)(4):
In an administrative citation action under Section 31.1
of this Act, any person found to have violated any
provision of subsection
(p)
or
(q)
of Section
2121
of
this Act shall pay a civil penalty of $500.00 for each
violation, plus any hearing costs incurred by the Board
and the Agency.
Such penalties shall b~made payable
to the Environmental Protection Trust Fund, to be used
in accordance with the provisions of “An Act creating
the Environmental Protection Trust Fund”,
approved
September 22,
1979; except that if a unit of local
government issued the administrative citation,
50
of
the penalty shall be payable to the unit of local
government.
While it is clear from the statute that the county is
entitled to 50
of the civil penalty assessed in an
administrative citation,
the statute does not provide direction
on the payment of the hearing costs.
The Board recognizes that
for record keeping purposes of both the Agency and the unit of
local government, payment should be directed to the appropriate
party for recording and distribution to the Environmental
Protection Trust Fund or the unit of local government.
For this
reason, the Board in administrative citations brought by a unit
The Act was previously codified at Ill. Rev. Stat. 1991, ch.
111 1/2, par. 1001
~.
~gq.
~
2
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).
3
of local government,
directs the respondent to pay the full
amount of the penalty to the unit of local government.
The unit
of local government upon receipt of the penalty, records payment
and designates 50
to the Environmental Protection Trust Fund.
The Agency is authorized to enter into delegation agreements
with any unit of local government,
delegating all or portions of
its functions.
(415 ILCS 5/4(r)
(1992).)
The procedure for
payment of the penalty and hearing costs
in an administrative
citation proceeding is specified in the delegation agreement.
However, while the delegation agreement between the Agency and
Sangamon County specifies how payment of the civil penalty is to
be made in paragraph 11, the agreement does not address the issue
of the hearing costs.
The Agency argues that payment of the county’s hearing costs
to the county is consistent with the legislative intent of the
Act.
The Agency contends that the legislature purposely did not
specify a specific fund or manner to pay the costs because it was
aware of the multitude of funds to be created when each unit of
local government adopted its own financial accounting system.
The Agency maintains that the effect of not recovering even small
hearing costs could adversely affect the budget of the unit of
local government.
Sangamon County and the Agency are in agreement that the
hearing costs incurred by the unit of local government are
recoverable by the unit of local government.
The parties also
agree that payment of hearing costs should be sent directly to
the fund designated by the unit of local government.
The Agency
suggests that the Board require the unit of local government to
indicate the proper payee when submitting its affidavit of costs.
The Board grants reconsideration of its February 4,
1993
order.
The Board has previously interpreted the statute to allow
for the recovery of hearing costs by a unit of local government
in an administrative citation procedure.
(In the matter of: Bi-
State Disposal,
Inc.
(February 23,
1989), AC 88-33;
County of Du
Page v.
E
& E Hauling,
Inc.
(February 8,
1990), AC 88-76
& AC 88-
77.)
However, because the statute does not specify to whom or
how payment
is to be made the Board considers this issue to be a
matter of accounting.
The Agency has expressed approval for the
payment of hearing costs incurred by the unit of local government
bringing the administrative citation, being made directly to the
payee designated by the unit of local government.
Because there is no statutory language on the distribution
of the hearing costs and this
is primarily an issue of
accounting,
the Board seeks input from the Office of the
Comptroller.
The Board will forward to the Comptroller, the
briefs submitted by Sangamon County and the Agency.
The Board
requests the Comptroller to comment on the propriety of the
4
payment of hearing costs to the county.
The Board requests the
Comptroller to submit a comment to the Board on or before Nay 21,
1993.
Copies of the comment from the Office of the Comptroller
should also be provided to Sangamon County and the Agency.
Motion for Stay
Mr. Miller in his “Motion for Stay of Orders” filed on March
15,
1993 requests the Board to enter an order staying the force
and effect of the Board’s December 17,
1992 and February 4,
1993
orders.
Mr. Miller notes that he has filed appeals of both
orders with the Illinois Appellate Court,
Fourth District.
The Board
in its March 11, 1993 order,
stayed the payment of
the hearing costs until after the resolution of the motion for
reconsideration.
The Board will continue to stay the payment of
the hearing costs pending the resolution of the matters on review
in the motion for reconsideration.
The Board will rule on the
motion for stay of the payment of hearing costs when it decides
the motion for reconsideration.
The Board denies the motion for stay of the December 17,
1992 order.
This order required Mr. Miller to pay a civil
penalty of $500 within 45 days of the date of the order.
The
order further noted that any penalty not paid within the
prescribed time shall incur interest unless payment has been
stayed during the pendency of an appeal.
Payment of the civil
penalty was due February 1,
1993.
Mr. Miller filed his appeal of
this order with the Appellate Court on or about January 22,
1993.
The motion for stay was not filed with the Board until March 15,
1993.
The Board finds the motion to stay untimely and denies the
motion.
The respondent may submit a motion for stay to the
appellate court.
IT IS SO ORDERED.
I, Dorothy M.
Cunn,
Clerk of the Illinois Pollution Control
Board, hereby certify that ~he above order was adopted on the
day of
,
1993, by a vote of
7d~j~A,
.LL~J
Dorothy M41Gunn, ~lerk
Illinois ~h11ution Control Board