Miller v. Pollution Control Bd., Nos. 4-93-0047

CourtUnited States Appellate Court of Illinois
Writing for the CourtKNECHT
Citation267 Ill.App.3d 160,642 N.E.2d 475
Parties, 204 Ill.Dec. 774 Gerald B. MILLER, Petitioner, v. The POLLUTION CONTROL BOARD et al., Respondents. (Two Cases)
Decision Date27 October 1994
Docket Number4-93-0585,Nos. 4-93-0047

Page 475

642 N.E.2d 475
267 Ill.App.3d 160, 204 Ill.Dec. 774
Gerald B. MILLER, Petitioner,
v.
The POLLUTION CONTROL BOARD et al., Respondents. (Two Cases)
Nos. 4-93-0047, 4-93-0585.
Appellate Court of Illinois,
Fourth District.
Argued March 22, 1994.
Sept. 30, 1994.
Rehearing Denied Oct. 27, 1994.

[204 Ill.Dec. 778]

Page 479

[267 Ill.App.3d 162] Becky S. McCray, Fred C. Prillaman (argued), and Stephen F. Hedinger (argued), all of Mohan, Alewelt, Prillaman & Adami, of Springfield, for petitioner.

Donald M. Cadagin, State's Atty., of Springfield (Robert L. Smith, Asst. State's Atty. (argued), of counsel), for respondent Sangamon County Dept. of Public Health.

Roland W. Burris, Atty. Gen., of Chicago (Rosalyn B. Kaplan, Sol. Gen., and Jerald S. Post, Asst. Atty. Gen. (argued), of counsel), for respondent Pollution Control Bd.

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.

[267 Ill.App.3d 163] 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 [204 Ill.Dec. 779]

Page 480

"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 [267 Ill.App.3d 164] 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, 25 Ill.Dec. 602, 604, 387 N.E.2d 258, 260.) 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, 150 Ill.Dec. 850, 852, 563 N.E.2d 977, 979.) This principle applies to decisions of administrative agencies. Waste Management of Illinois, Inc. v. Pollution Control Board (1990), 201 Ill.App.3d 614, 619, 146 Ill.Dec. 961, 964, 558 N.E.2d 1295, 1298, rev'd on other grounds (1991), 145 Ill.2d 345, 165 Ill.Dec. 875, 585 N.E.2d 606.

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, 150 Ill.Dec. at 852, 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, 102 Ill.Dec. 687, 689, 500 N.E.2d 580, 582.) 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, 150 Ill.Dec. at 853, 563 N.E.2d at 980; Home State Bank/National Association v. Potokar (1993), 249 Ill.App.3d 127, 137, 187 Ill.Dec. 581, 587-88, 617 N.E.2d 1302, 1308-09.) 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.

[267 Ill.App.3d 165] 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

Page 481

[204 Ill.Dec. 780] granted to it by the legislature. (Chemed Corp. v. State (1989), 186 Ill.App.3d 402, 410, 134 Ill.Dec. 313, 318, 542 N.E.2d 492, 497.) In section 31.1(d)(2) of the Act the legislature provided:

"If, based on the record, the Board finds that the alleged violation occurred, it shall adopt a final order which shall include the administrative citation and findings of violation as alleged in the citation, and shall impose the penalty specified in subdivision (b)(4) of Section 42." (Ill.Rev.Stat.1991, ch. 111 1/2, par. 1031.1(d)(2).)

Subsection (b)(4) of section 42 of the Act, previously quoted, provides for a civil penalty of $500 for each violation plus any hearing costs incurred by the Board and the agency. Ill.Rev.Stat.1991, ch. 111 1/2, par. 1042(b)(4).

We decline to construe section 31.1(d)(2) of the Act to require the "final order" be final only as to the imposition of the penalty and not dispositive of the issue of costs. Such a construction would result in the necessity of multiple appeals. Our legislature has not provided for bifurcated means of appealing administrative decisions. (City of Wood Dale v. Illinois State Labor Relations Board (1988), 166 Ill.App.3d 881, 892, 117 Ill.Dec. 746, 752-53, 520 N.E.2d 1097, 1103-04.) We find the Board is required to enter a single final order, including both the imposition of the civil penalty and assessment of costs. The result of the Board's bifurcation of the administrative citation proceedings, the entry of two "final" orders, was improper.

The Board argues it has the authority to bifurcate administrative citation proceedings by virtue of one of its own regulations. The...

To continue reading

Request your trial
12 practice notes
  • Johnson v. Thomas, No. 1-01-2045.
    • United States
    • United States Appellate Court of Illinois
    • July 21, 2003
    ...we will review Johnson's argument and the award of costs granted by the circuit court. See Miller v. Pollution Control Board, 267 Ill. App.3d 160, 170, 204 Ill.Dec. 774, 642 N.E.2d 475, 484 (1994) ("the waiver rule is an admonition to litigants, not a limitation on the jurisdiction of the r......
  • Negro Nest, LLC v. Mid-Northern Management, No. 4-04-0333.
    • United States
    • Supreme Court of Illinois
    • December 1, 2005
    ...are Page 1091 recoverable. Downs, 307 Ill.App.3d at 70, 240 Ill.Dec. 309, 716 N.E.2d at 1260; see Miller v. Pollution Control Board, 267 Ill.App.3d 160, 171-72, 204 Ill.Dec. 774, 642 N.E.2d 475, 485 (1994) (error to award attorney fees as "`hearing costs' [(Ill. Rev. Stat 1991, ch. 111 1/2,......
  • Vancura v. Katris, No. 1-06-2750.
    • United States
    • United States Appellate Court of Illinois
    • December 26, 2008
    ...handwriting expert was necessary, but his notary practices expert was not. Further, Vancura cites Miller v. Pollution Control Board, 267 Ill.App.3d 160, 172, 204 Ill.Dec. 774, 642 N.E.2d 475, 485 (1994), and DiCosola v. Bowman, 342 Ill.App.3d 530, 540, 276 Ill.Dec. 625, 794 N.E.2d 875, 883 ......
  • ESG Watts, Inc. v. Pollution Control Bd., Nos. 3-96-0533
    • United States
    • United States Appellate Court of Illinois
    • February 6, 1997
    ...in the proceeding before the Board. Hence, it waived the right to raise the issue on appeal. See Miller v. Pollution Control Board, 267 Ill.App.3d 160, 204 Ill.Dec. 774, 642 N.E.2d 475 (1994) (failure to object during administrative proceeding waives right to raise the issue on Application ......
  • Request a trial to view additional results
12 cases
  • Johnson v. Thomas, No. 1-01-2045.
    • United States
    • United States Appellate Court of Illinois
    • July 21, 2003
    ...we will review Johnson's argument and the award of costs granted by the circuit court. See Miller v. Pollution Control Board, 267 Ill. App.3d 160, 170, 204 Ill.Dec. 774, 642 N.E.2d 475, 484 (1994) ("the waiver rule is an admonition to litigants, not a limitation on the jurisdiction of the r......
  • Negro Nest, LLC v. Mid-Northern Management, No. 4-04-0333.
    • United States
    • Supreme Court of Illinois
    • December 1, 2005
    ...are Page 1091 recoverable. Downs, 307 Ill.App.3d at 70, 240 Ill.Dec. 309, 716 N.E.2d at 1260; see Miller v. Pollution Control Board, 267 Ill.App.3d 160, 171-72, 204 Ill.Dec. 774, 642 N.E.2d 475, 485 (1994) (error to award attorney fees as "`hearing costs' [(Ill. Rev. Stat 1991, ch. 111 1/2,......
  • Vancura v. Katris, No. 1-06-2750.
    • United States
    • United States Appellate Court of Illinois
    • December 26, 2008
    ...handwriting expert was necessary, but his notary practices expert was not. Further, Vancura cites Miller v. Pollution Control Board, 267 Ill.App.3d 160, 172, 204 Ill.Dec. 774, 642 N.E.2d 475, 485 (1994), and DiCosola v. Bowman, 342 Ill.App.3d 530, 540, 276 Ill.Dec. 625, 794 N.E.2d 875, 883 ......
  • ESG Watts, Inc. v. Pollution Control Bd., Nos. 3-96-0533
    • United States
    • United States Appellate Court of Illinois
    • February 6, 1997
    ...in the proceeding before the Board. Hence, it waived the right to raise the issue on appeal. See Miller v. Pollution Control Board, 267 Ill.App.3d 160, 204 Ill.Dec. 774, 642 N.E.2d 475 (1994) (failure to object during administrative proceeding waives right to raise the issue on Application ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT