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09/30/94 GERALD B. MILLER v. ILLINOIS POLLUTION

September 30, 1994

GERALD B. MILLER, PETITIONER,
v.
THE ILLINOIS POLLUTION CONTROL BOARD AND SANGAMON COUNTY DEPARTMENT OF PUBLIC HEALTH, RESPONDENTS.



Administrative Review of Illinois Pollution Control Board. No. AC92-37

As Corrected November 22, 1994. Petition for Rehearing Denied and Released for Publication October 27, 1994. Petition for Leave to Appeal Denied February 1, 1995.

Honorable James A. Knecht, J., Honorable Carl A. Lund, J., Honorable Frederick S. Green, J.

The opinion of the court was delivered by: Knecht

JUSTICE KNECHT delivered the opinion of the court:

This case involves two consolidated appeals from orders entered by the Illinois Pollution Control Board (Board) in a single case. (Sangamon County v. Miller (Dec. 17, 1992), Ill. PCB Op. 92-37; Sangamon County v. Miller (Feb. 4, 1993), Ill. PCB Op. 92-37.) In an administrative citation procedure, initiated by Sangamon County (County), the Board found Gerald Miller used his property as an open dump resulting in the occurrence of litter. (Ill. Rev. Stat. 1991, ch. 111 1/2, par. 1021(p)(1).) The Board imposed a $500 penalty and ordered Miller to pay the costs of the hearing process which, by separate order, were assessed at $952.25. We affirm the finding of violation but find the amount of costs assessed by the Board was an abuse of discretion.

I. FACTS

Miller's parcel of land was inspected by Brian Wood, a solid waste inspector at the County Department of Public Health in April 1992. He found an abandoned house, junked cars, trucks and farm equipment, household refuse, appliances, machinery parts, wire, metal construction materials, storm windows, window framing, wood, batteries, and cans strewn about the property. Miller had previously been warned about the impermissible use of his property as an open dump and advised of potential penalties.

The County filed an administrative citation in May 1992 alleging Miller caused or allowed open dumping on his property resulting in the occurrence of litter. (Ill. Rev. Stat. 1991, ch. 111 1/2, par. 1021(p)(1).) Miller contested the citation and a hearing was held in September 1992. On December 17, 1992, the Board entered an order bifurcating the proceedings, assigning a portion of the proceedings to "Docket A" and another portion to "Docket B."

In the same order, the Board ruled upon the matters assigned to "Docket A." The Board found Miller committed the violation, assessed a $500 penalty, and ordered Miller to pay the hearing costs which would later be assessed in the "Docket B" proceedings. The order additionally advised Miller he could seek appellate review of the decision if he filed a petition for review within 35 days of the entry of the order. On January 22, 1993, 36 days after the entry of the "Docket A" order, Miller filed an appeal from the Board's determination of a violation, docketed No. 4-93-0047.

On February 4, 1993, in the "Docket B" proceedings the Board assessed hearing costs of $952.25. On February 18, 1993, the assistant State's Attorney for the County requested clarification, which the Board regarded as a motion to reconsider (see Sangamon County v. Miller (Mar. 11, 1993), Ill. PCB Order 92-37). On March 10, 1993, Miller filed an appeal, docketed No. 4-93-0217, from the Board's order in the "Docket B" proceedings. Due to the Board's determination the letter to clarify was actually a motion to reconsider, this appeal was dismissed as premature. (Miller v. Illinois Pollution Control Board (Mar. 29, 1993, 4th Dist. Gen. No. 4-93-0217) (order of dismissal).) The Board disposed of the motion to reconsider by order on June 3, 1993. (Sangamon County v. Miller (June 3, 1993), Ill. PCB Order 92-37.) Miller filed an appeal from the "Docket B" proceedings on July 8, 1993, docketed No. 4-93-0585. The first (No. 4-93-0047) and third (No. 4-93-0585) appeals have been consolidated.

II. JURISDICTION

The Board contends this court does not have jurisdiction to consider the arguments raised by Miller's first appeal as the notice of appeal was filed more than 35 days after the entry of the Board's December 17, 1992, order. In fact, Miller's first appeal was premature because the December 17, 1992, order was not final.

The Board referred to both its December 17, 1992, and February 4, 1993, orders as final orders, but only the latter order was a final order. Only final orders of the Board are subject to judicial review. ( Landfill, Inc. v. Pollution Control Board (1978), 74 Ill. 2d 541, 549, 387 N.E.2d 258, 260, 25 Ill. Dec. 602.) An order is final only if it terminates the litigation between the parties on the merits or disposes of the rights of the parties, either upon the entire controversy, or upon some definite and separate part thereof. ( Village of Niles v. Szczesny (1958), 13 Ill. 2d 45, 48, 147 N.E.2d 371, 372; Mars v. Priester (1990), 205 Ill. App. 3d 1060, 1063, 563 N.E.2d 977, 979, 150 Ill. Dec. 850.) This principle applies to decisions of administrative agencies. Waste Management of Illinois, Inc. v. Pollution Control Board (1990), 201 Ill. App. 3d 614, 619, 558 N.E.2d 1295, 1298, 146 Ill. Dec. 961, rev'd on other grounds (1991), 145 Ill. 2d 345, 585 N.E.2d 606, 165 Ill. Dec. 875.

An order is final if it determines the ultimate rights of the parties with respect to distinct matters which have no bearing on other matters left for future determination, or if the matters left for future consideration are collateral to the ultimate rights which have been adjudicated. ( Barnhart v. Barnhart (1953), 415 Ill. 303, 309, 114 N.E.2d 378, 381; Mars, 205 Ill. App. 3d at 1063, 563 N.E.2d at 979.) An order is not final for purposes of review where the amount of the penalty has not been determined. (See Archer Daniels Midland v. Pollution Control Board (1986), 149 Ill. App. 3d 301, 303-04, 500 N.E.2d 580, 582, 102 Ill. Dec. 687.) Where the right to costs arises from the same basis which gives rise to the claim asserted in the litigation, it is not a collateral matter. ( Mars, 205 Ill. App. 3d at 1064, 563 N.E.2d at 980; Home State Bank/National Association v. Potokar (1993), 249 Ill. App. 3d 127, 137, 617 N.E.2d 1302, 1308-09, 187 Ill. Dec. 581.) Here, the obligation of the offender to pay the penalty and the obligation to pay the costs stem from the same statute. The statute provides, "any person found to have violated any provision of subsection (p) or (q) 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." Ill. Rev. Stat. 1991, ch. 111 1/2, par. 1042(b)(4).

The Board's December 17, 1992, order makes a finding Miller violated section 21(p)(1) of the Environmental Protection Act (Act) (Ill. Rev. Stat. 1991, ch. 111 1/2, par. 1021(p)(1)). Thus, the Board was required, by the terms of the statute, to assess a $500 fine and hearing costs. The costs in this case are not a collateral matter.

The multiple appeals filed by Miller were necessitated by the Board's bifurcation of the proceedings and entry of two "final" orders in this case. Had the Board entered only one final order, only one appeal (filed at the time of the third appeal in this case) would have been necessary. All of the issues raised in the first and third appeals in this case could have been raised in this single appeal. After oral argument on the first appeal, and prior to the completion of the briefing process on the third appeal, we consolidated these two cases. The consolidation occurred with the agreement of the parties and in order to avoid any prejudice to Miller as the result of the Board's bifurcation of the proceedings.

III. BIFURCATION OF THE PROCEEDINGS

Miller contends the Board exceeded its authority by bifurcating the administrative citation proceeding. An administrative agency has only those powers specifically granted to it by the legislature. ( Chemed Corp. v. State (1989), 186 Ill. App. 3d 402, 410, 542 N.E.2d 492, 497, 134 ...


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