LAKE ENVIRONMENTAL INC v. THE STATE OF ILLINOIS (2001)

OPINION

This claim for administrative litigation expenses pursuant to/10-55(a) of the Administrative Procedure Act (the APA)(5 ILCS 100/10-55(a)) arises out of an unsuccessful enforcement action by the Department of Public Health (IDPH) against Lake Environmental, Inc. (Lake). This court has jurisdiction under/8(I) of the Court of Claims Act (705 ILCS 505/8(I)).

Nature of the Claim

IDPH assessed a $5,000 civil penalty against Lake for violation of two regulations under the Asbestos Abatement Act (105 ILCS 105/1), which governs asbestos removal in schools. IDPH alleged that Lake violated the regulations on October 16, 1996 on an asbestos abatement project being performed at Millstadt Elementary School, Millstadt, Illinois (see, Notice of Civil Penalty Assessment and Notice of Hearing (November 13, 1996) (Notice of Penalty), Compl., Exh. A).

In the ensuring administrative proceeding, the facts were stipulated (see, Complainant's and Respondent's Admission of Facts and Genuineness of Documents (September 10-12, 1997)(the Stipulation)). The charges and assessment were rejected by Administrative Law Judge Ronald J. Stone, of Springfield (the ALJ) (see, Administrative Law Judge Report and Recommendation (February 4, 1998)(ALJ Report); Compl., Exh. B), whose findings and conclusions were adopted by IDPH. (See, Final Order, IDPH Doc. No. AB 96-95 (April 24, 1998); Compl., Exh. C.)

Lake then applied to IDPH for reimbursement of its litigation expenses (see, Letter of May 1, 1998; Compl., Exh. E), which IDPH promptly rejected (see, Letter of May 12, 1998, id., Exh. F), finding that the administrative record does not support the presumption [sic] that this agency made any allegations which were without reasonable cause and found to be untrue (ibid.).

Lake then filed its complaint in this court asking us to find that the IDPH did make untrue allegations without reasonable cause and to award Lake its litigation expenses of $18,115.66 (of which $17,890.64 are attorney's fees) that it expended in defense of the IDPH administrative proceeding, and also, pursuant to APA/10-55(b), to award Lake its legal fees in prosecuting this claim here. (See, Compl., f4, Bill of Particulars, Exh.F.)

This claim is before us for final determination on Lake's complaint, IDPH's answer, the administrative record, which includes the parties Stipulation and the ALJ's Report, the parties briefs and the Commissioner's recommendation. An oral argument but no evidentiary hearing was held by our Commissioner, Stephen R. Clark. We have reviewed the transcript of those arguments.

The Disputed Element

The statute establishes four elements for a litigation expense claim arising out of an administrative proceeding: (1) the proceeding was initiated by a state agency, (2) which made an allegation against the Claimant, (3) that was found to be untrue, and was made without reasonable cause. (5 ILCS 100/10-55(a).) The Respondent does not take issue with the first three elements. (Respondent's Brief in Opposition to Claimant's Complaint [Resp.Br,], at 3.) The parties dispute here is focused on the fourth element: the reasonableness of IDPH's charges against Lake.

Somewhat unusually, this Claimant challenges the reasonableness of the legal aspects of the agency's charges, rather than their factual components. (The underlying facts were stipulated and undisputed.) Thus the only issue before this court is whether the law and the undisputed facts gave IDPH reasonable cause to allege the violations it char ged in its administrative notice. This tests the reasonableness of the agency's application of the law, i.e., the asbestos abatement regulations.

IDPH alleged that on October 16, 1996, at the asbestos abatement project being performed (emph. added), Lake violated two regulations then in effect: 77 Ill. Admin. Code/855.130(a)(2), which required ground-fault interrupters in the electrical power to work areas, and/855.160(a), which required airtight barriers to segregate parts of the building in use during asbestos abatement from parts that will under go asbestos abatement.

The dispositive issue in the IDPH-Lake administrative litigation was whether Lake was engaged in an asbestos-abatement project on October 16, 1996 under the regulatory definition then in effect (77 Ill. Admin. Code/855.20), which read as follows:

Project means work that is greater than three linear feet or three square feet being conducted in a school facility.

The interpretation of this project definition determined whether the cited regulations applied to Lake's performance at Millstadt School on October 16, 1996. (The asbestos abatement regulations apply to projects as defined in/855.20; that term is not defined in the Asbestos Abatement Act.)

The Facts

The stipulated core facts, and two stipulated legal points, are as follows:

a. On October 16, 1996, Lake was engaged in air sampling and set up, including construction of a decontamination unit, hand cleaning a tunnel and vacuuming the tunnel floor. Lake did no asbestos abatement that day. (Stipulation, f2(f), (g).)

b. The IDPH Surveyor inspected Lake's operation at the Millstadt School in the late afternoon of October 16, 1996, and informed Lake's supervisor that Lake was not then in compliance with the two cited regulations. (Id., f 4(e), (h)-(n).)

c. Lake started and finished asbestos abatement work the next day, October 17, 1996, and cross the 3-foot threshold for a project by removing more than 3 lineal feet [ultimately 5 10] of pipe lagging. (Id., f11, 13.)

d. When Lake commenced asbestos removal on October 17, 1996, it was in compliance with the cited regulations and all IDPH recommendations. The IDPH Surveyor returned and noted correction of the alleged violations that day, (Id., f10, f12.)

e. IDPH mailed its Notice of Penalty to Lake on November 14, 1996. The penalty calculation was based on the number of Lake employees present at Millstadt School and the number of students and faculty present at the school (during after-school sports programs) at the time of the alleged violations on October 16, 1996.

f. The preparation and pre-cleaning work done by Lake on October 16, 1996 did not itself require compliance with the cited regulations under applicable O & M [operations and maintenance] standards. (Stipulation, f3.)

g. If Lake had never exceeded the regulatory threshold--i.e., if it had abated less than three linear feet of asbestos-covered pipe -- the cited regulations would not apply to any of Lake's work at Millstadt School and there would be no violation (Id., f3).

We must also note the ancillary facts concerning the Notice of Asbestos Abatement that Lake submitted to IDPH before commencing work at Millstadt School (see, Stipulation, f4, Exh.A; see, Compl., Exh.A). Under the regulations, such notice is required before an asbestos abatement project may be commenced; the apparent purpose is to allow IDPH inspection before asbestos abatement commences. Lake's notice indicated that a project would commence October 15, 1996 at Millstadt School consisting of pipe insulation -- 14 Ln Feet (ibid.).

Lake contended that it did not, and could not, know in advance how much asbestos abatement would be done at Millstadt School, as the pipe work was merely ancillary to the replacement of steam traps by another contractor. Lake maintains that its Notice was precautionary: to avoid a potential 2-week delay mid-construction if it turned out that IDPH inspection were required. IDPH did not dispute those contentions. The ALJ found that Lake's notice was filed in the event that asbestos in excess of three (3) feet ultimately was targeted for removal. (ALJ Report, at 6 (emph. by ALJ).)

The Administrative Decision

Before the ALJ, the parties took the following positions on the applicability of the cited regulations (summarizing): Lake argued that it did not (and could not) violate the cited regulations on October 16, 1996 because they did not then apply because Lake's work did not become a argued that once Lake exceeded the regulatory threshold (here 3 linear feet of abatement) so that its work became a project, all of its work from the time it came onto the school site was part of that project and was thus subject to the asbestos abatement regulations.

The ALJ ruled for Lake, rejecting IDPH's charges and penalty, holding (ALJ Report, 6-7):

If [Lake] had filed no Notice, had performed the preliminary work as they did, and then filed the Notice upon later discovering that three (3) feet of asbestos abatement was necessary, then [IDPH] agrees that no violations would be shown. These two disparate results do not seem reconcilable. The actions by [Lake] seem reasonable. No asbestos was removed until their activities were in compliance. The [ALJ] does not feel that [IDPH] has sustained its burden of proof in showing any violation of the Act or Rules.

The issue that we must now decide is whether IDPH's losing construction of its asbestos abatement regulations was made without reasonable cause so as to subject the respondent to an award of litigation expenses to the Claimant.

The Parties Reasonableness Arguments

Lake advances several arguments to support its claim that the IDPH had no reasonable basis for constructing its project regulation as it did, and thus had no reasonable cause to allege that Lake had violated the regulations before doing any abatement work:

1. The/855.20 definition of project is unambiguous, and neither requires nor allows any interpretation by IDPH. The definition uses the term work (work greater than three (3) feet) which necessarily means asbestos abatement work, not preparatory work. In addition,/855.160, which Lake allegedly violated, is for the stated purpose of segregating parts of the building in use during asbestos abatement. IDPH was unreasonable in applying a broader and retroactive construction that was not clearly indicated by the regulations language.

2. The unreasonableness of IDPH's interpretation has already been determined by the ALJ's decision, which is res judicata. The ALJ found that IDPH's position was untenable and would lead to disparate results that cannot be reconciled, which is a finding that its position was unreasonable (Claimant's Br., at 14). IDPH took the position that its interpretation must be upheld if it was reasonable. Because IDPH accepted the rejection of its interpretation, it has conceded that reasonableness was necessarily decided against it. Res judicata bars IDPH form arguing otherwise now.

3. The IDPH interpretation of its regulations should not be given deference by this court in this APA/10-55(a) determination. The ALJ's decision must be read as having already allowed any such required deference. The reasonableness standard under/10-55(a) is an objective standard that does not include deference to state agencies.

4. IDPH later amended its asbestos regulations to assure that commencement of work employs specific requirements (Claimant's Br., at 15, quoting an IDPH admission, thereby reversing the result in this case. The amendment is an admission that the prior regulation could not support the [rejected] interpretation, which was unreasonable.

The Respondent advances several arguments in support of its position that IDPH's broad interpretation of project was reasonable, and thus its allegations that Lake had violated the cited regulations during the pre-abatement phase of the project was made with reasonable cause:

1. The administrative expense statute, APA/10-55(a), is to be strictly applied.

2. IDPH's application of the asbestos regulations was reasonable at the time; and should not be viewed from the perspective of 20-20 hindsight (Respondent's Br., 7).

3. [T]he agency's interpretations should not be afforded any deference in this proceeding. But rejection of its interpretation does not automatically label the agency's action as unreasonable (Respondent's Br., 5-6).

4. The ALJ did not decide the reasonableness of IDPH's interpretation of project nor of its charges against Lake. The ALJ did not make a specific finding of unreasonableness. His anomalous results comment is not a finding of unreasonableness. The Administrative order is not res judicata on the reasonable cause issue.

5. IDPH's charges were a reasonable effort to enforce safety regulations. When Lake informed IDPH at the October 16, 1996 inspection that Lake would be removing over three feet of asbestos, [IDPH] charged [Lake} with violating the safety regulations that are triggered by such a removal. This was not an unreasonable charge, given that there were 43 building occupants present at that time. (Respondent's Br., at 6-7.) IDPH's charges were not made in bad faith, further suggesting that they were not made unreasonably. (Id., at 6.)

6. The definition of project in the asbestos abatement regulations is not clear. The term work in that definition (work in excess of three feet) is vague, and is not defined in the regulations. IDPH's interpretation, that work includes preparation or preparatory work and not only asbestos abatement itself is therefore reasonable. If work was intended to mean abatement work, the regulation would specifically state that. (Tr., Oral Argument to Clark, Comm'r., April 11, 2000, at 16-17.)

Analysis

There are four argued points on which the parties and this court are in substantial agreement:

First, the pleading wing of the administrative expense statute (APA/10-55(a)), unlike the invalidated administrative rule wing (/10-55-(c)), is to be strictly rather than liberally applied. Although this principle is not dispositive here, the claimant (Lake) bears the burdens of strict proof and persuasion on each element of recovery under/10-55(a) -- of which only the reasonable cause element is contested here.

Second, we agree that there is no showing of bad faith by IDPH in this asbestos abatement enforcement action against Lake. However, that is not terribly relevant: the absence of bad faith does not provide a defense under/10-55(a).

Third, we agree with both parties that on the issue of reasonable cause for the agency's interpretation of law, no deference is to be given to IDPH in this/10-55(a) expense proceeding. Presumably the requisite deference was granted in the substantive adjudication of the regulations. The issue before us is not the correctness of the agency's interpretation (which has been decided against it), but whether that interpretation was so wide of the mark and so unsupported or unsupportable as to have been made without reasonable cause. We address a more stringent standard under/10-55(a) than was addressed by the ALJ on the merits.

Fourth, as noted previously (see, n. 1, ante), the reasonableness of the agency's charges is to be determined as of the date of those charges (November 14, 1996) and not retrospectively with the advantage of hindsight. This point has little impact in this case, which turns on reasonable cause for legal allegations. Nothing occurred between the 1996 IDPH charges and this court's review that might give rise to different contemporaneous and retrospective legal views of those charges.

Thus unaided by four of the parties uncontested arguments, we turn to two disputed contentions: Lake's res judicata and subsequent amendment arguments.

Lake's res judicata claim must be rejected. The ALJ's decision did not find the IDPH interpretation of the asbestos regulations was unreasonable, either explicitly or by equivalent language. The ALJ's finding of irreconcilable disparate results was not so much a finding as to IDPH's interpretation of project, standing alone, as it was a finding that IDPH was taking two different and irreconcilable positions on the application of the regulations to projects and to non-projects (i.e., work that is less than a project). If the ALJ found anything unreasonable, it was the inconsistency in IDPH's positions. That does not necessarily mean that either position was itself unreasonable -- merely that they cannot both be simultaneously reasonable.

We will not apply the ALJ's findings to this/10-55(a) expense claim. Even if we were to read the ALJ's findings as tantamount to without reasonable cause, our interpretation would not vest that finding with res judicata effects for two reasons. The ALJ did not adjudicate the/10-55(a) reasonable cause issue -- which was not before him -- and thus cannot be taken as having applied the/10-55(a) standard. Second, under the procedural scheme of APA/10-55(a), that determination is for this court to make, once the agency has rejected the claimant's fee demand as IDPH did here.

Similarly, we cannot agree with Lake that the rejected interpretation must ipso facto be deemed unreasonable because it was rejected on the merits, notwithstanding IDPH's legal position that its interpretation must be upheld if reasonable. We appreciate the clever play on legal words. But however true it may be that unreasonable interpretations are usually invalid, it does not follow that all reasonable interpretations are valid and must be upheld. Even a State agency can be wrong while being reasonable. An agency's reasonable interpretation of its regulations are not always upheld, especially where the regulations are penal and may be construed against the authoring government agency rather than receiving total judicial deference.

Lake's admission by amendment argument is also rejected. Even assuming arguendo that IDPH's ensuing amendment to the asbestos abatement regulations was calculated to reverse (and did reverse) the result in this case, this court will not construe such an amendment as an admission by the authoring agency of the unreasonableness of its rejected interpretation of its former regulations. That is not a necessary implication of a regulatory revision, nor is such an inference favored by the law. Lake cites no authority for such an admission by later regulatory (or legislative) amendment. The only admission that a later amendment implies is that the authoring agency had some reason to clarify or alter the regulations. Without a perceptible record of relevant agency intent, which this claimant does not cite, this court will not entertain speculative inferences of intent or admissions.

The reasonable cause analysis next turns to the parties competing contentions as to the interpretation of the /855.20 project definition -- both those argued here in this expense claim and those advanced in the administrative proceedings on the merits (which are not identical) and this court's view which is not entirely reflective of the parties arguments.

In this court, the parties focus on the administratively-undefined term work contained in the/855.20 administrative definition of project. The claimant contends that work is unambiguous and clearly mean asbestos removal work (as the ALJ seems to have assumed). The respondent now contends that work is ambiguous and may reasonably be interpreted by IDPH to include preparatory work as well as abatement work.⁵

We cannot agree with Lake that the undefined term work is completely unambiguous, although its use in the /855.20 project definition is not very ambiguous. Nevertheless, our conclusion that work is somewhat ambiguous requires us to reject Lake's argument that any interpretation of work is improper and hence unreasonable per se.

For purposes of this APA expense claim, the issue raised by IDPH's work therefore project includes preparation interpretation is whether that was a reasonable interpretation. We conclude it was not.

First, the text of the /855.20 project definition fails to convey or even to suggest such an expansive view of project. There is not a hint in the language that a project threshold might be measured by something other than asbestos abatement. While this point alone is not dispositive, it takes on greater weight in the context of a regulation that is subject to penalty for violation.

Second, if work were to include preparatory work, the /855.20 definition of project would be unworkable or seriously incomplete. The definition contains no provision identifying how to aply the defining phrase (work that is greater than three linear feet or three square feet) to preparation efforts, which as this case makes clear includes tasks that are not amenable to measurement solely by area or length. IDPH has not provided any reasonable explanation for this, nor any supporting reason for this construction.

Fourth, and finally, it appears that this reading of the /855.20 project definition has not only not been the IDPH application in practice but is inconsistent with IDPH's practice in the field. The record is not perfectly clear in this regard, but tends to support this conclusion, and respondent has not argued that its work interpretation is the established agency practice. IDPH's failure to demonstrate that its harsh interpretation of project -- on the basis of its broad reading of work or on any other basis -- is a longstanding established administrative practice seriously undermines the reasonableness as well as the credibility of its position in light of the fact that the Act and the implementing regulations have been in place for many years.

We arrive finally at the reasonableness of the interpretation that IDPH offered in the administrative litigation. IDPH contended that once the 3-foot threshold (of asbestos abatement work) is reached in a school, the resulting project retroactively encompasses the pre-abatement work that was done before reaching the threshold. We find that interpretation was unreasonable.

First, there is no hint of this retroactive application in the text of/855.20. As observed above, this sort of undisclosed interpretation of a penal regulation -- harsher than it communicates by its language -- is disfavored, and in extreme cases may implicate due process concerns. Similarly, retroactive applications are disfavored in the law, and are not ordinarily allowed in the absence of language explicitly so providing. The authoring agency of administrative regulations is no less subject to these settled principles of statutory construction than any other arm of government. Because IDPH has the authority to write and rewrite these regulations, its interpretation of its own handiwork in clear violation of the established canons of construction is presumptively unreasonable.

Second, IDPH's retroactive application of the project definition is inconsistent with its language. The/855.20 language is work that is greater than ?? That speaks in the present tense: is refers to now not to later. The definition does not say work that becomes greater than, which would encompass both present and future circumstances. It is linguistically unreasonable, as a matter of common understanding of the English language, for IDPH to construe is greater to mean not greater now but will be greater later. But that is exactly what IDPH did when it tries to apply the/855.20 is greater language retroactively to the earlier below-threshold abatement work.

Third, and worst yet, IDPH's retroactive application of the definition not only reaches backward in time to encompass the below-3-feet abatement work, but -- as IDPH would have it -- also reaches back to envelop the on-abatement preparation work. This is a catch-22 construction. This construction would virtually assure that asbestos abaters will violate these regulations, as they would have to be in full compliance from the moment they start preparations, rather than when they commence asbestos abatement. Requiring full compliance during set-up and preparation time leaves no grace period to get prepared and into compliance. This is patently unreasonable.

Finally, the retroactive application in this case, by charging Lake with having violated the regulations on October 16, 1996 -- when Lake was still in the pre-abatement preparation stage of its work at Millstadt School -- was grossly unreasonable on the date the charges were made. The two regulations involved, by their own terms, cannot reasonable be said to be violated before asbestos abatement commences: 77 Ill. Admin. Code/855.130(a)(2) imposes requirements on the electrical power to work areas, which as defined (also in/855.20) means areas in which asbestos abatement is performed; and/855.160(a) requires airtight segregation of areas in which asbestos abatement is to occur. Both of these regulations are explicitly aimed at conditions during abatement.

Respondent's effort to justify its charges of pre-abatement violations of the regulations against Lake is patently spurious. Respondent now argues that, motivated by safety concerns for the staff and students who were present in Millstadt School after hours on October 16, 1996, IDPH charged Lake with the violations. This good intentions argument is both immaterial and disingenuous. IDPH did not then issue a stop-work order or take any similar action to prevent safety violations during asbestos abatement, which would stand on very different ground. Instead, IDPH waited a month -- until after asbestos removal at Millstadt School was finished -- and then assessed a $5,000 penalty for alleged pre-abatement violations despite its knowledge that Lake had been in full compliance during the asbestos removal. We cannot find in these circumstances any reasonable cause for IDPH's charges in November, 1996. We do find a case of administrative over-reaching.

We have imposed a strict and difficult burden on the Claimant in this unreasonable legal allegation claim, as we believe is required under APA/10-55(a). But Lake has met its difficult burden of establishing that IDPH's legal allegations in this case were made without reasonable cause. In this case, the agency's prosecutorial zeal exceeded the bounds of reasonableness, by attempting to penalize Lake for conduct that was not then colorably subject to the State regulations it ws accused of violating, thereby triggering Lake's entitlement to its defense expenses under/10-55(a).

Claimant's Litigation Expenses

Lake's complaint asks for reimbursement of $18,115.66 in litigation expenses (Compl., prayer, at 7), consisting of $17,890.64 of attorneys fees and $225.02 of miscellaneous expenses (id., Bill of Particulars, at 6). Supporting that reimbursement claim is Claimant's counsel's Detailed Time & Expense Report (Compl., Exh. F), containing detailed billing records on this case covering the period November 20, 1996 to May 22, 1998, attested by affidavit of attorney Joseph G. Nassif.

We have reviewed the submitted billing records in detail, which reflect a total of 179.8 hours for various attorneys billed at rates from $77 to $187 per hour. The court finds the time and rates billed to be reasonable under the circumstances, and amply justifies the claimed attorneys fees.

The court will make this award now, but will permit the Claimant to submit a supplemental bill of particulars by motion to request its actual expenses for bringing this expense claim, pursuant to APA/10-55(b). We do so because Claimant Lake has pleaded this request (Compl.; Bill of Particulars, f 31(c); Prayer), and will allow respondent to file objections thereto. Unless one or both of the parties persuade us otherwise, we will not order a hearing on the supplemental expense request.

Conclusion and Order

For the reasons set forth above, it is hereby ORDERED:

1. The court finds liability on this claim against the respondent.

2. Claimant Lake Environmental, Inc. is awarded the sum of $18,115.66 in full reimbursement of its defense expenses incurred in IDPH Docket No. AB 96-95.

3. Claimant may file a motion for reimbursement of supplemental expenses incurred in bringing and prosecuting this claim, supported by verified supplemental bill of particulars, within 28 days after the date of this order.

4. Respondent may file any objections to the supplemental request within 35 days after claimant's motion and supplemental bill have been filed.

5. If claimant fails timely to file such motion and bill, this case shall be closed.

FOOTNOTES

5.  It is not at all clear that this was IDPH's historical interpretation of/855.20, or that IDPH advanced this work interpretation argument in the administrative proceedings. We nevertheless entertain this argument as a potential reasonable cause supporting IDPH's pleaded position, as the issue before us is whether such reasonable cause existed -- not whether it was argued or well argued by the agency when it lost on the merits.The court must express severe distaste for a State agency's reliance on the claimed ambiguity of its own inartful regulations -- created by its own failure to define used terms or to used defined terms -- to attempt to open the legal door to a stricter interpretation of a penal regulation than the regulation's language fairly communicates.

FN1. ??The parties also agree that this expense dispute is limited to the reasonableness of the charges at the time IDPH made them, i.e., on November 14, 1996. This case does not involve a claim that a charge made with reasonable cause later became unreasonable or groundless due to discovered facts or other intervening events..  FN1. ??The parties also agree that this expense dispute is limited to the reasonableness of the charges at the time IDPH made them, i.e., on November 14, 1996. This case does not involve a claim that a charge made with reasonable cause later became unreasonable or groundless due to discovered facts or other intervening events.

FN2. ??The Respondent does not contest the applicability of APA/10-55(a) to legal as well as factual allegations. We observe that the statutory language (an allegation untrue and without reasonable cause.) does not express any distinction among types of allegations (e.g., of fact, or law, and mixed) and thus facially encompasses all allegations. This literal reading of/10-55(a) comports with our Supreme Court's interpretation of/10-55(c) in Citizens Organizing Project v. Department of Natural Resources, 189 Ill.2d 593, 727 N.E.2d 195 (2000), and adheres to the legislative intent of/10-55(a), as originally enacted in Public Act 82-670, to adopt the substance of [former]/2-61 1 of the Code of Civil Procedure (then applicable against the State in judicial proceedings; later superseded by Supreme Court Rule 137 and repealed), which applied to both factual and legal allegations. See, Haas Bakery v. State of Illinois, 54 Ill.Ct.Cl. _ (2001)(discussing legislative history of P.A. 82-670, which enacted both/10-55(a) and/10-55(c))..  FN2. ??The Respondent does not contest the applicability of APA/10-55(a) to legal as well as factual allegations. We observe that the statutory language (an allegation untrue and without reasonable cause.) does not express any distinction among types of allegations (e.g., of fact, or law, and mixed) and thus facially encompasses all allegations. This literal reading of/10-55(a) comports with our Supreme Court's interpretation of/10-55(c) in Citizens Organizing Project v. Department of Natural Resources, 189 Ill.2d 593, 727 N.E.2d 195 (2000), and adheres to the legislative intent of/10-55(a), as originally enacted in Public Act 82-670, to adopt the substance of [former]/2-61 1 of the Code of Civil Procedure (then applicable against the State in judicial proceedings; later superseded by Supreme Court Rule 137 and repealed), which applied to both factual and legal allegations. See, Haas Bakery v. State of Illinois, 54 Ill.Ct.Cl. _ (2001)(discussing legislative history of P.A. 82-670, which enacted both/10-55(a) and/10-55(c)).

FN3. ??The ALJ also observed: The Department takes the position that because it ultimately became a project the preliminary measures on October 16, 1996 should not be assessed by the [O&M] Standards, but instead by the more stringent Project requirements. (ALJ Report, at 4.).  FN3. ??The ALJ also observed: The Department takes the position that because it ultimately became a project the preliminary measures on October 16, 1996 should not be assessed by the [O&M] Standards, but instead by the more stringent Project requirements. (ALJ Report, at 4.)

FN4. ??We adhere to strict construction with some misgivings in light of the remedial purpose of the original enactment of/10-55(a) in P.A. 82-670 and our Supreme Court's recognition of that purpose in its liberal construction of/10-55′ (expenses when an administrative rule is invalidated). Citizens Organizing Project v. Department of Natural Resources, 189 Ill.2d 593, 727 N.E.2d 195(2000). Nevertheless, because the legislative intent of paragraph (a) was to adopt the substant of [former]/ 2-61 1 of the Civil Practice Law to apply against the State in (State-initiated) administrative proceedings (see, Haas Baking Co. v. State of Illinois, 54 Ill.Ct.Cl. _ (2001) (discussing legislative history), and because strict construction has been the settled view of that statute as well as of the succeeding Sup. Ct. Rule 137, we are bound by the overwhelming weight of Illinois caselaw that adheres to the strict construction construction..  FN4. ??We adhere to strict construction with some misgivings in light of the remedial purpose of the original enactment of/10-55(a) in P.A. 82-670 and our Supreme Court's recognition of that purpose in its liberal construction of/10-55′ (expenses when an administrative rule is invalidated). Citizens Organizing Project v. Department of Natural Resources, 189 Ill.2d 593, 727 N.E.2d 195(2000). Nevertheless, because the legislative intent of paragraph (a) was to adopt the substant of [former]/ 2-61 1 of the Civil Practice Law to apply against the State in (State-initiated) administrative proceedings (see, Haas Baking Co. v. State of Illinois, 54 Ill.Ct.Cl. _ (2001) (discussing legislative history), and because strict construction has been the settled view of that statute as well as of the succeeding Sup. Ct. Rule 137, we are bound by the overwhelming weight of Illinois caselaw that adheres to the strict construction construction.

EPSTEIN, J.