ESG Watts, Inc. v. Pollution Control Board
State: Illinois
Court: 3rd District Appellate
Docket No: 3-96-0533
Case Date: 02/06/1997
NO. 3-96-0533
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 1997
ESG WATTS, INC. )
)
Petitioner-Appellant, )
)
v. )
)
ILLINOIS POLLUTION CONTROL )
BOARD and the ILLINOIS )
ENVIRONMENTAL PROTECTION )
AGENCY )
)
Respondent-Appellees. ) Petition for Review of an Order
) of the Illinois Pollution
CONS WITH: 3-96-0562 ) Control Board
)
ILLINOIS ENVIRONMENTAL ) No. PCB 94-23
PROTECTION AGENCY, )
)
Appellant, )
)
v. )
)
ILLINOIS POLLUTION CONTROL )
BOARD, et al., )
)
Appellees. )
JUSTICE BRESLIN delivered the opinion of the court:
ESG Watts, Inc. (Watts) appeals the Illinois Pollution Control
Board's (Board) decision affirming the Illinois Environmental
Protection Agency's (Agency) denial of seven waste stream permit
applications. The Agency appeals a Board sanction requiring that
it pay Watts' attorney $1,250 for fees incurred because the Agency
failed to meet the Board's briefing deadline. We hold that the
Board's decision affirming the Agency's denial of the waste permits
was not against the manifest weight of the evidence. We therefore
affirm the ruling. (3-96-0533). However, we hold that the Board
lacked the authority to order the Agency to pay Watts' attorney
fees, and we thus reverse that ruling. (3-96-0562).
BACKGROUND
Watts owned three landfills in Illinois. Its site known as
Taylor Ridge was located in Rock Island County. The other two
sites, known as the Viola Landfill and the Sangamon Valley
Landfill, were located in Viola and Springfield respectively. Only
Taylor Ridge was operating at the time of this appeal. Beginning
in May 1994 Watts started sending permit applications for its
Taylor Ridge site to the Agency. Renewal applications for the
acceptance of "generic" waste streams, wastewater treatment sludge
from ink, button dust, calcium sulfite cake, and buffing dust waste
were all denied. Additionally, the Agency denied two new
applications for Taylor Ridge to receive waste sulfur cement and
paint sludge. In all, seven applications were denied for the
Taylor Ridge site.
The Agency based its denials on section 39(i)(1) of the
Illinois Environmental Protection Act (Act). 415 ILCS 5/39(i) (West
1994). Section 39(i)(1) provides:
(i) Before issuing any RCRA permit for the conduct of any
waste-transportation or waste-disposal operation, the Agency
shall conduct an evaluation of the prospective operator's
prior experience in waste management operations. The Agency
may deny such a permit if the prospective operator or any
employee or officer of the prospective operator has a history
of:
(1) repeated violations of federal, State, or local
laws, regulations, standards, or ordinances in the
operation of refuse disposal facilities or sites;
* * *
415 ILCS 5/39(i) (West 1994).
As evidence of repeated violations, the Agency cited a circuit
court action (People v. Watts Trucking et al., 91-CH-242) and 19
administrative citations against Watts over a seven year period.
The action in the circuit court concerned violations in the
Sangamon Valley Landfill in Springfield. It resulted in $350,000
in penalties being levied just six months before the first denial.
The judgment was one of the single highest penalties assessed
against a landfill owner in Illinois. With regard to the 19
administrative citations, four related to operations at Taylor
Ridge, with the most recent of the four taking place in 1989.
Furthermore, as another reason for denying the permit applications,
the Agency identified "technical difficulties" in six of the seven
permit applications. These difficulties included the failure to:
properly identify the waste; provide the proper land waste code;
provide copies of laboratory papers and demonstrate that certain
tests had been performed.
Watts appealed the seven permit denials to the Board. The
Board affirmed the denial of the applications. Although it
affirmed the decision, the Board noted that the technical
difficulties were not supported by the record and were not
dispositive of the issue relating to section 39(i). However, the
Board upheld the decision because Watts' past history of violations
clearly "demonstrat[ed] an example of an appropriate use of section
39(i) * * * *." The Board also ordered the Agency to pay $1,250 in
attorney fees to Watts' attorney for fees incurred in attempting to
exclude an untimely Agency brief. Both Watts and the Agency
appeal.
This is a relatively short statement of the facts. We will
discuss additional facts relevant to the individual issues as each
is analyzed.
ANALYSIS
When reviewing a decision of the Illinois Pollution Control
Board, the court's function is not to reweigh the evidence or make
an independent assessment of the facts. Illinois Environmental
Protection Agency v. Illinois Pollution Control Board, 252 Ill.
App. 3d 828, 624 N.E.2d 402 (1993). Rather, the court must
evaluate the evidence to ascertain whether the Board's decision was
contrary to the manifest weight of the evidence. Environmental
Protection Agency v. Pollution Control Board, 115 Ill. 2d 65, 503
N.E.2d 343 (1986). If any evidence in the record fairly supports
the action taken by an administrative agency, the decision must be
sustained on appeal. Farmers State Bank v. Department of
Employment Security, 216 Ill. App. 3d 633, 576 N.E.2d 532 (1991).
Operator Specificity
Watts asserts that the Agency's review of operations at
facilities other than the facility seeking the permits was
improper. In its written decision, the Board ruled that section
39(i) is operator-specific and not facility-specific and,
therefore, reasoned that the Agency could consider repeated
violations at sites other than the Taylor Ridge site when
determining whether to grant the waste permits. Watts contends,
however, that section 39(i) is facility-specific and that it was
inappropriate to consider violations at any sites other than Taylor
Ridge because they bore no rational relation to events at Taylor
Ridge.
The overriding objective in interpreting a statute is to
ascertain and give effect to the intent of the legislature. Roser
v. Anderson, 222 Ill. App. 3d 1071, 584 N.E.2d 865 (1991). A court
should first look to the statutory language as the best indication
of legislative intent. Veterans Assistance Commission of Will
County v. County Board of Will County, 274 Ill. App. 3d 32, 654
N.E.2d 219 (1995).
Section 39(i) provides that the Agency, when determining
whether to grant a permit, must evaluate the "prospective
operator's prior experience in waste management operations." 415
ILCS 5/39(i) (West 1994). The Agency may deny a permit because of
"repeated violations * * * in the operation of refuse disposal
facilities or sites * * * * (emphasis added)." 415 ILCS 5/39(i)(1)
(West 1994).
The language of the statute does not limit the review of
violations to the facility seeking permits. Rather, we find that
the statute is clear in providing that the Agency may consider
violations at other sites operated by the owner. Therefore, we
hold that section 39(i) is operator-specific, not facility-
specific.
Board's Standard of Review
Watts argues that the Board applied an improper standard of
review when it reviewed the Agency's denials. It contends that
since section 39(a) of the statute (415 ILCS 5/39(a) (West 1994))
provides that the Agency shall issue a permit upon proof that a
facility will not cause a violation of the Act, the true question
in front of the Board is whether the Agency acted in an arbitrary
and capricious manner. We disagree that this is the Board's
standard of review.
Generally, the Board does not apply the arbitrary and
capricious standard to decisions made by the Agency. Rather, the
Board reviews the information which the Agency relied on in making
its decision. See Alton Packaging Corp. v. Illinois Pollution
Control Board, 162 Ill. App. 3d 731, 516 N.E.2d 275 (1987).
Thereafter, the Board places the burden on the petitioner to prove
that it is entitled to a permit and that the Agency's reasons for
denial are either insufficient or improper. ESG Watts, Inc. v.
Illinois Environmental Protection Agency, Ill. Pollution Control
Bd. Op. 94-243 (Consolidated) (March 21, 1996).
To require the Board to review the Agency decision under an
arbitrary and capricious standard in this case would essentially
remove the procedural safeguards of the administrative appeal
process. The decision of the Agency would, in effect, be
insulated, because the Board's review would be limited to a
determination of whether the action was arbitrary rather than
appropriate and supported by the evidence. Moreover, we are
concerned that, due to the time restraints placed on the Agency, it
cannot hold full hearings to develop the issues of the case.
Accordingly, it is essential that the Board provide hearings and
allow the petitioner an opportunity to challenge the validity of
the decision made by the Agency. To require another standard of
review would interrupt the administrative continuum which becomes
complete after the ruling of the Board. Illinois Environmental
Protection Agency v. Illinois Pollution Control Board, 138 Ill.
App. 3d 550, 486 N.E.2d 293 (1985), aff'd, 115 Ill. 2d 65, 503
N.E.2d 343 (1986). Therefore, we hold that the Board's process of
reviewing the analysis by the Agency and placing the burden on the
applicant to demonstrate that the denial was unwarranted under
section 39(i) is a proper method of review.
Pre-Determination of Permit Denials
Watts contends that the Agency exercised an improper pre-
determination because the Agency made its decision to deny Watts'
application before it received a response to letters sent to Watts
informing it of the prospective reasons for denials and requesting
an explanation as to why the denials would be improper.
In Wells Manufacturing v. Illinois Environmental Protection
Agency, 195 Ill. App. 3d 593, 552 N.E.2d 1074 (1990), the court
held that it was improper for the Agency to deny an applicant a
permit based upon alleged violations of the Act without providing
the applicant an opportunity to submit information which would
disprove the alleged violations. After the Wells decision, the
Agency began to send so-called "Wells letters" to applicants to
provide them with an opportunity to respond to potential grounds
for denial before a denial letter is issued.
Watts contends that the sending of Wells letters in this case
was a "sham" because the Agency had already decided to deny the
applications before the responses were mailed back. Watts points
to the permit reviewer's notes dated before Watts' response to all
the Wells letters were even returned in this case. The reviewer
noted, with respect to the last two permit applications, that
"[s]ince the application is being denied anyway due to past
adjudicated violations, I included this [technical] deficiency as
a denial point." Watts asserts that this notation is clear and
unequivocal evidence that the Agency made up its mind to deny the
applications before Watts responded to the Wells letter, thus
denying Watts a meaningful opportunity to be heard.
The Board, however, found that sufficient evidence was
presented to the contrary. Specifically, the Board accepted the
permit reviewer's testimony that he reviewed the responses and
discussed them with others at the Agency. We find that the Board's
decision was not against the manifest weight of the evidence.
Enforcement Guidelines and Equal Protection
Watts argues that the Agency has not developed any guidelines
for the enforcement of section 39(i) and thus cannot meet its
statutory obligation to investigate the conduct of applicants.
Watts also contends that the result allowed for the discretionary
application of section 39(i) in violation of the Equal Protection
Clause, U.S. Const. amend. XIV.
Although the Agency has not adopted any procedures with
respect to section 39(i), it does not follow that the Agency cannot
properly evaluate applicants. The Agency cannot be expected to
establish procedures for every conceivable circumstance. See
Strube v. Illinois Pollution Control Board, 242 Ill. App. 3d 822,
610 N.E.2d 717 (1993) (statute which authorized Agency to adopt
reasonable and necessary rules for the administration of
underground storage tanks did not require it to promulgate rules
for every circumstance). The Agency is only required to have
reasonable and necessary rules when it adopts procedures. Strube,
242 Ill. App. 3d at 829, 610 N.E.2d at 722.
In this case, although no specific written procedures were
followed to evaluate the permit applications, we find that the
evaluation process was sufficient. The permit reviewer made
inquiries to the different sections of the Agency, and the Field
Operating Section returned comments. Wells letters were also sent
out. From the information gathered, the reviewer was able to
ascertain that Watts had a record of serious and repeated
violations to which section 39(i) applied. Furthermore, the
decision was reviewed by the Board, providing the safeguards of due
process. See Strube, 242 Ill. App. 3d at 829, 610 N.E.2d at 722
(citing Environmental Protection Agency v. Pollution Control Board,
115 Ill. 2d 65, 503 N.E.2d 343 (1986)).
As for Watts' equal protection claim, we find that it is
without merit. Equal protection is denied when state officers
enforce a statute in a discriminatory manner but only if the
discrimination is intentional and purposeful. Beverly Bank v.
Board of Review of Will County, 117 Ill. App. 3d 656, 453 N.E.2d 96
(1983). To establish a discriminatory purpose, plaintiff must show
more than an arbitrary application of statutes and rules. Beverly
Bank, 117 Ill. App. 3d at 664, 453 N.E.2d at 101. Plaintiff must
show that the decision maker singled out a particular group for
disparate treatment and acted, at least in part, to cause adverse
effects on the identifiable group. Beverly Bank, 117 Ill. App. 3d
at 664, 453 N.E.2d at 101.
Watts has not shown that it is part of an identified group.
Additionally, Watts has not demonstrated that the Agency acted to
cause adverse affects. On the contrary, the effects of the denials
were those sought by the statute, and there was no demonstration of
a discriminatory purpose. Moreover, although Watts has suggested
that a lack of procedures may lead to arbitrary enforcement, Watts
has not established that there was an arbitrary application of the
statute in its case. Therefore, we reject this argument.
Delegation of Authority
Watts argues that the legislature's delegation of
discretionary authority to the Agency in section 39(i) is invalid.
Although Watts failed to raise this issue before the Board, we find
that it is central to this case and should be reviewed on appeal.
See Augsburg v. Frank's Car Wash, Inc., 103 Ill. App. 3d 329, 431
N.E.2d 58 (1982) (reviewing court may decline to apply waiver
doctrine in order to achieve a just result).
Watts asserts that the legislature provided no intelligible
standards for the Agency to follow when enforcing 39(i). It
complains that no guidance is provided to the Agency other than an
evaluation of the prospective operator's prior experience in waste
management. It argues that elements such as recency, severity, or
good faith efforts to comply are essential points to consider when
determining the status of an applicant.
Where the legislature vests discretionary authority in an
administrative agency, intelligible standards must be provided to
guide the exercise of the agency's discretion. Balmoral Racing
Club v. Illinois Racing Board, 151 Ill. 2d 367, 603 N.E.2d 489
(1992). Failure to provide such standards renders the statute
void. Balmoral, 151 Ill. 2d at 391, 603 N.E.2d at 498. A
delegation of legislative authority is constitutional only if the
legislature provided sufficient identification of: (1) the persons
and activities potentially subject to regulation; (2) the harm
sought to be prevented; and (3) the general means intended to be
available to the administrator to prevent the identified harm.
Friendship Facilities, Inc. v. Region 1B Human Rights Authority,
167 Ill. App. 3d 425, 521 N.E.2d 578 (1988).
We find that the legislature provided appropriate standards to
guide the exercise of the Agency's discretion. Section 39(i)
provides that "prospective operators" are the parties subject to
regulation, and the activity subject to regulation is the obtaining
of the permits. 415 ILCS 5/39(i)(West 1994). The harm to be
prevented is that of granting a prospective operator a permit when
the operator's past conduct suggests that granting a permit may
create a risk. See 415 ILCS 5/39(i). The means available to
prevent the harm is clearly the denial of the application following
an investigation into the applicant's background. 415 ILCS 5/39(i).
The investigation may inquire as to: (1) repeated violations in the
operation of refuse disposal sites; (2) a conviction of a felony;
or (3) proof of gross carelessness in handling or disposing of any
hazardous waste. 415 ILCS 5/39(i). Whether the Agency should be
required to consider factors such as recency, severity, or good
faith efforts to comply is an issue that is more appropriately left
to the legislature.
Consideration of Non-Adjudicated Violations
The Agency permit reviewer learned of alleged violations
during an investigation performed under the authority given by
section 39(i). The alleged violations involved Watts' failure to
submit a "significant modification" application which was required
for a modification planned at its Taylor Ridge site. The
information was acquired from the Agency's Field Operation Section
which recommended to the reviewer that the applications be denied
due to the alleged violation as well as other adjudicated
violations.
Watts contends that the Agency acted improperly when it
considered the alleged violations. It argues that since section
39(i) only permits the Agency to consider past adjudicated
violations, its reliance on the non-adjudicated violation was
improper and mandates a reversal. If the Board relied solely on
the non-adjudicated violation we would agree with Watts on this
point, but the record does not bear out that contention.
While the permit reviewer testified that he considered the
Field Operating Section comments when he examined the permit
applications, the Agency did not include the alleged violation in
its denial letters which were sent to Watts. The Board has
determined that it is the denial letter which frames the issue in
a permit appeal to the Board. See Pulitzer Community Newspapers v.
Illinois Environmental Protection Agency, Ill. Pollution Control
Bd. Op. 90-142 (December 20, 1990); Centralia Environmental
Services, Inc. v. Illinois Environmental Protection Agency, Ill.
Pollution Control Bd. Op. 89-170 (May 10, 1990). Because the
reasons set forth in the denial letters were sufficient to support
the Agency's actions, the permit reviewer's consideration of the
unadjudicated violations was not prejudicial and did not taint the
decision. Thus, while it may have been improper to consider the
unadjudicated violations, (see Martell v. Mauzy, 511 F. Supp. 729
(N.D. Ill. 1981) (due process limitations applied to Agency's
decision denying renewal of operating permits based on alleged
violations)), a reversal is not necessary because there was a
sufficient basis for the Agency's actions.
Permitting Process as Enforcement Tool
Watts claims that the denial of the permits was an
impermissible use of the permitting process as an enforcement tool.
In support of its argument, Watts cites Illinois Environmental
Protection Agency v. Illinois Pollution Control Board, 252 Ill.
App. 3d 828, 624 N.E.2d 402 (1993). In that case, this Court
affirmed the Board's finding that the Agency improperly used the
permit denial process as an enforcement tool because the evidence
demonstrated that the Agency denied permit applications based on
alleged violations of the Act. In the present case, however, the
Board found that the record did not support Watts' contention that
the Agency relied on unadjudicated violations when it made its
decision to deny the permit applications. We conclude that the
Board's findings are reasonable and not against the manifest weight
of the evidence. Therefore, we hold that the denials were not an
impermissible use of the permitting process as an enforcement tool.
Sufficiency of Evidence
Watts argues that the Board's ruling is contrary to the
manifest weight of the evidence because the Board could not
properly rely on the circuit court action concerning the Sangamon
Valley Landfill as well as the 19 administrative citations. Watts
points to the Board's decision where it stated that "the
seriousness of the violations that occurred at the Sangamon Valley
Landfill, together with the 19 adjudicated administrative citations
against Watts, are sufficient cause to justify the Agency's denials
in this case." Watts asserts that since this conclusion rests
equally upon the Sangamon Valley occurrence and the 19
administrative citations, if the Board's findings concerning one or
the other are against the manifest weight of the evidence, then the
decision is against the manifest weight of the evidence.
We reject this argument because the Board did not state that
it had relied equally upon both factors. Moreover, considering the
violations separately, we find that there was sufficient evidence
of past adjudications to support the Board's decision.
Adequacy of Notice
Watts contends that the Agency failed to provide sufficient
notice of the reasons for denial of the permits. However, Watts
failed to raise this issue 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, 642 N.E.2d
475 (1994) (failure to object during administrative proceeding
waives right to raise the issue on appeal).
Application of 35 Ill. Adm. Code 745.141(b)
Because no administrative procedures were adopted by the
Agency to enforce section 39(i), the Board employed 35 Ill. Adm.
Code 745.141(b) (1987), the regulations implemented for the
enforcement of 415 ILCS 5/22.5 (West 1994). Section 22.5
establishes the standards for certification of personnel operating
disposal facilities and sites. The provisions of section 22.5 are
virtually identical to section 39(i) in that certification can be
denied to prospective operators due to repeated violations,
convictions, and gross carelessness. 415 ILCS 5/22.5 (West 1994).
However, section 745.141(b) permits certain mitigating factors to
be taken into account when enforcing section 22.5. Specifically,
the Agency may consider the severity of the conduct, how recently
the event took place and the degree of control exerted over the
disposal operations by the applicant. 35 Ill. Adm. Code
745.141(b) (1987).
Watts argues that the Board's review pursuant to 35 Ill. Adm.
Code 745.141(b) (1987) caused it to reach an erroneous decision.
Specifically, Watts contends that the Board's findings that the
adjudicated violations were sufficiently severe and recent were
erroneous.
Contrary to Watts' assertions, the Board could reasonably
infer the severity of Watts' past violations from the record and
conclude that the citations were sufficiently recent. Given the
apparent severity, recency and quantity of violations committed,
we hold that the Board's decision was not against the manifest
weight of the evidence.
Sanction Authority of the Board
After a hearing on the consolidated permit appeals in December
1995, Watts filed its required post-hearing brief on January 12
pursuant to an arranged briefing schedule. The Agency failed to
file its brief by January 26, as called for by the schedule.
Eventually, on February 7, 1996, the Agency moved to file the post-
hearing brief instanter. Watts had moved to exclude the brief,
however, the Board determined that the case was one of first
impression and briefing by both parties was desirable. The Board
thus directed the Agency to file its brief and to pay a sanction of
$1,250 to Watts for the legal expenses incurred by Watts in its
attempt to exclude the Agency's brief.
At issue is whether the Board had the authority to impose a
sanction of attorney fees.
In cases other than where a court exercises its inherent
powers and issues a contempt citation, specific authority to award
attorney fees must be granted. See Cummings v. Beaton &
Associates, Inc., 249 Ill. App. 3d 287, 618 N.E.2d 292 (1992). In
the absence of statutory authority or an agreement specifically
authorizing them, attorney fees and other ordinary expenses of
litigation may not be awarded. Sanelli v. Glenview State Bank, 126
Ill. App. 3d 411, 466 N.E.2d 1119 (1984); Chicago Title & Trust Co.
v. Walsh, 34 Ill. App. 3d 458, 340 N.E.2d 106 (1975). Statutes
which allow for the recovery of attorney fees must do so by
specific language. Miller v. Pollution Control Board, 267 Ill. App.
3d 160, 642 N.E.2d 475 (1994); State Farm Fire and Casualty Co. v.
Miller Electric Co., 231 Ill. App. 3d 355, 596 N.E.2d 169 (1992).
When the language of the statute does not specifically indicate
that "attorney fees" are recoverable, the courts will not give the
language an expanded meaning. See Qazi v. Ismail, 50 Ill. App. 3d
271, 364 N.E.2d 595 (1977) (citing Waller v. Board of Education of
Century Community Unit School District, 28 Ill. App. 3d 328, 328
N.E.2d 604 (1975) (courts consistently deny recovery of attorney
fees where such language as "attorney fees" has not been included
in the statute)); State Farm Fire and Casualty Co., 231 Ill. App.
3d at 359-60, 596 N.E.2d at 171-72.
The Board argues that it had the authority to impose the
sanction under 35 Ill. Adm. Code 101.280(a)(7) (1989). Section
101.280(a)(7) provides:
(a) If a party or any person unreasonably refuses to
comply with any provision of 35 Ill. Adm. Code 101
through 120 or fails to comply with any order entered by
the Board or the hearing officer * * *, the Board will
order sanctions. In addition to remedies elsewhere
specifically provided, the sanctions may include, among
others, the following:
* * *
(7) That the offending person pay the amount of
reasonable expenses incurred in obtaining an order
pursuant to this Section.
35 Ill. Adm. Code 101.280 (1989). In support of its argument,
the Board cites Grigoleit Co. v. Illinois Pollution Control Board,
245 Ill. App. 3d 337, 613 N.E.2d 371 (1993). In Grigoleit, the
petitioner sought sanctions against the Agency because it had
repeatedly refused to issue a permit in contradiction to a Board
order to do so. The matter had been previously remanded to the
Agency twice in order that the permit be issued. When the matter
arrived in front of the Board a third time, the Board ordered that
the permit be issued and, as a sanction, required that the permit
be issued without conditions. On appeal, the fourth district court
of appeals held that the Board's sanction against the Agency was
insufficient and remanded the case back to the Board with
directions to award attorney fees to the applicant. Grigoleit, 245
Ill. App. 3d at 348, 613 N.E.2d at 378.
We do not find Grigoleit persuasive. The Grigoleit court
reasoned that attorney fees were appropriate based on the Board's
broad discretion to impose sanctions, (see Grigoleit, 245 Ill. App.
3d at 346, 613 N.E.2d at 377 (citing Environmental Protection
Agency v. Celotex Corp., 168 Ill. App. 3d 592, 522 N.E.2d 888
(1988)), and the language in section 101.280(a)(7). However,
subsection (a)(7) does not specifically mention attorney fees.
Although (a)(7) permits the recovery of "reasonable expenses in
obtaining an order," (35 Ill. Adm. Code 101.280 (1989)), it does
not specifically state that "attorney fees" are an available
remedy.
The Board insists that the requirement of specificity in the
statute is limited to circumstances in which a party has
"prevailed" in the litigation. We disagree.
In cases where the inherent power of a court is not exercised,
the absence of specific authority permitting an award of attorney
fees prevents the shifting of fees to another party. This is the
case regardless of whether or not the litigation has ended on its
merits and one litigant has prevailed. See 155 Ill. 2d R. 137
(attorney fees available for papers signed in violation of rule);
5 ILCS 100/10-55 (West 1994) (untrue allegations made by
administrative agency without reasonable cause subjects agency to
burden of paying opposing party's reasonable attorney fees); Bank
of Waukegan v. Epilepsy Foundation of America, 163 Ill. App. 3d
901, 516 N.E.2d 1337 (1987) (court lacked statutory authority to
award attorney fees where one party requested continuance on date
set for trial); Freeman v. Myers, 191 Ill. App. 3d 223, 547 N.E.2d
586 (1989) (attorney fees improperly awarded where attorney's
actions caused mistrial because no statutory authority existed);
Sanelli v. Glenview State Bank, 126 Ill. App. 3d 411, 466 N.E.2d
1119 (1984) (party seeking fees for discovery violation failed to
base motion on specific statutory authority); Central Illinois
Public Service Co. v. Westervelt, 35 Ill. App. 3d 777, 342 N.E.2d
463 (1976), aff'd, 67 Ill. 2d 207, 367 N.E.2d 661 (1977) (request
for fees denied after mistrial was granted due to absence of
statutory authority or agreement between parties). Therefore, as
no specific statutory authority or agreement supported the Board's
award of attorney fees, we hold that the Board lacked the authority
to order the Agency to pay Watts' attorney fees as a sanction.
For the foregoing reasons, the decision of the Illinois
Pollution Control Board is affirmed in part and reversed in part.
Affirmed in part, reversed in part.
LYTTON, P.J., and HOMER, J., concurring.
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