ILLINOIS POLLUTION CONTROL BOARD
August
4,
1988
WASTE MANAGEMENT OF
)
ILLINOIS,
INC.,
AC 88—31
Respondent.
ORDER OF THE BOARD
(By J.
Anderson):
On May
19,
1988,
the Board issued an Order
in
this matter
making
a finding of violation in this administrative citation
action and ordering payment
of
a penalty on or
before June
18,
1988.
On June 17, Waste Management
of Illinois,
nc.
(WMI)
entered
a “special and limited appearance”
for the purpose
of
objecting
to allegedly improper service and resulting lack of
Board jurisdiction.
WMI moved
the Board
to vacate the Order,
as well
as
to stay
the imposition of the penalty until
10 days after
the Board’s
decision on this Motion.
On July
30, 1988,
the Board
stayed the
penalty payment date and reserved ruling on the Motion
to Vacate
until the County responded.
The Board directed
the County
to
file
its response no later than July
11,
1988 to allow the Board
to again consider this matter at
its July
13,
1988
meeting.
On July 13,
1988, Tazewell County filed
its Response
to
WMI’s Motion.
The Board notes that this filing
is
late and was
not submitted under Motion
to File Instanter.
However, because
the Board
today dismisses this proceeding on other grounds,
this
filing defect will not be considered
fatal
in this instance.
In its special and limited appearance, WMI states that it
is
a Delaware Corporation with
a corporate office
in Oak Brook,
Illinois,
and that its registered agent
in the State of Illinois
is CT Corporation Systems.
WMI further states that the
administrative citation
in question was sent by certified mail
to
Glen O’Bryan, WMI District Engineer, addressed
to him at the
Milam Landfill
in East St.
Louis,
Illinois on April
11,
1988,
by
the Tazewell County Health Department.
WMI argues that such
service
is
improper under Section 31.1 of the Environmental
Protection Act
(Act), which states that the citation “shall be
served upon the person named therein or such person’s authorized
agent
for service
of process.”
WMI therefore moves
the Board
to
vacate its May
19, 1988 Order
as being based on an administrative
citation which was not properly served within
60 days after
the
date
of
the observed violation as
required by Section 31.1(b)
of
the Act.
91—181
—2—
In its response, Tazewell County
(County)
agrees with WMI’s
statement
of
facts but disagrees with WMI’s conclusions
as
to
improper service.
The County states the Mr. O’Bryan
is “an agent
of Respondent
for purposes
of operation at the Tazewell County
Landfill”.
The County argues
that:
The primary purpose
of the enforcement program
is
to advise Respondent
of deficiencies
in its
operations
in
order
that Respondent
can
take
the necessary corrective
action.
Serving
Mr.
O’Bryari furthers the purpose of the program in
that
Mr.
O~Bryan
has
the
expertise
to
accomplish this purpose.
However,
the County states that it will serve all future
administrative citations upon CT Corporation Systems.
The County
“agrees that the method of service may not have been the best
method
to insure
that Respondent could
or would have successfully
contested
the administrative citation,”
and
states that
it would
not object
to a hearing on the citation.
The County believes
that the appropriate remedy would be
to allow WMI leave
to file
a
Petition for Review
of the citation.
Based
on these
facts,
the Board finds
that the
administrative citation was not properly served upon the
Respondent, Waste Management of Illinois,
Inc.
Section
31.1 of
the Act states that each administrative citation shall be served
upon “the person named therein or such person’s authorized agent
for service of process.”
Section 103.123 of the Board’s
procedural
rules
(35
Ill. Adm. Code 103.123) states:
A
copy
of
the
notice
and
complaint
shall
either be served personally on the respondent
or his authorized agent,
or shall be served by
registered
or
certified
mail
with
return
receipt
signed
by
the
respondent
or
his
authorized
agent.
Proof
shall
be
made
by
affidavit
of
the
person
making
personal
service,
or by properly executed registered or
certified
mail
receipt.
Proof
of
service
of
the
notice
and complaint
shall
be
filed
with
the
Clerk~ immediately
upon
completion
of
service.
(emphasis added)
The administrative citation names WMI
as Respondent.
Tazewell
County sent the citation by registered or certified mail,
as
evidenced by returned receipt,
to a Mr. Glen O’Bryan.
The
signature on the mail receipt appears
to be “Scott Plafcan,”
91—182
—3—
apparently another WMI employee.1
Although the County asserts
that Mr.
O’Bryan
is
“an agent
of Respondent for purposes
of
operations”
at the site, the Board
is not persuaded
that Mr.
O’Bryan
is “an authorized
agent”
for purposes
of service
of
process.
WMI
is
a Delaware Corporation with CT Corporation
Systems as
its registered agent;
therefore,
CT Corporation
Systems would be an
“authorized agent”
for service
of proc9s.
But the record makes
no similar connection for Mr. O’Bryan.
All
that Tazewell County has established
is that Mr. O’Bryan
is an
employee of WMI.
The Board
is not persuaded
to find “authorized
agent” status on that basis
alone.
The Board notes
that compliance with
the procedural
requirements
for service
of process
is particularly important in
the administrative citation process.
This process
is unique
in
that the Act requires
(1)
that the administrative citation be
issued and served within
60 days of the observed violations, and
(2)
that the Respondent petition for review within
35 days of
service or
(3)
that the Board will enter
an automatic finding
of
the violation and impose
a penalty.
If service of
the citation
is not proper,
the first notice
of process received by
the
Respondent might well be the order finding
the violation and
imposing the penalty.
In
light of this statutory framework,
it
is imperative
that the Respondent have
the opportunity
to
petition for review of
the citation.
The Board does not believe
that such
an opportunity exists when the administrative citation
does not reach
the proper individuals.
Here,
the proper
individuals did not receive the administrative citation until
it
was
too late
to file
a petition for review.
Such an occurrence
must be avoided.
The Board therefore finds that the named Respondent,
Waste
Management of Illinois, was
not properly served with
the
1
In addition to the more general issue decided today,
the Board
questions whether the mail receipt was properly executed.
“Scott
Plafcan” signed
the receipt
in the box marked “Signature—
Addressee.”
The addressee was Glen O’Bryan.
The box marked
“Signature—Agent” was left blank.
Also,
there
is
no indication
as
to the type of service afforded
——
certified or registered
mail.
The Board need not address
this issue here because
(1)
the
parties provide
little information on proper execution and
(2)
this case
is disposed of on other grounds; however, the Board
does note that Section 103.123 clearly requires “properly
executed registered
or certified mail receipt.”
2
The Board
notes
that “authorized agent” status has been found
to exist
in
a similar
proceeding, AC 88—54.
There,
the Board
found authorization
in
a letter
from Respondent’s attorney
to
Tazewell County,
the
issuer
of the administrative citation.
91—183
—4—
administrative citation.
As no administrative citation was
properly served upon Respondent within
60 days of
the observed
violation
(as required by Section 31.1 of
the Act),
no
administrative
citation exists upon which
to allow Respondent
leave
to file a Petition for Review,
as
is suggested by Tazewell
County.
The Board’s May
19,
1988 Order
is vacated.
This matter
is dismissed.
IT
IS SO ORDERED.
I, Dorothy M.
Gunn, Clerk of the Illinois Pollution Control
Board, hereb~certifythat the above Order was adopted on
the
_______________
day
of &—~.~4.-
,
1988 by a vote
of
~7-o
•
Dorothy
M.
Gunn, Clerk
Illinois
ollution Control Board
91—184