ILLIFWIS POLLUTION CONTROL BOARD
June 22, 1989
IN THE MATTER OF:
3
& R LANDFILL,
INC.,
)
AC 89—18
(Docket No.
89—1 SC)
Respondent.
ORDER OF
THE
BOARD
(by 3. Marlin):
On
May 16,
1989,
J
& R Landfill,
Inc.
(J
& R) filed
a Motion
for Reconsideration requesting
that the Board reconsider
its
Order
of May 11,
1989.
The State’s Attorney
of
St.
Clair County
filed
a response on May 30,
1989,
and
3
& R filed
a reply on June
8,
1989.
The Board grants 3
& R’s motion
in
so
far
as
the Board
will
reconsider
its previous decision.
By its Order
of May 11,
1989, which
is the subject of 3
&
R’s motion,
the Board denied
a motion made
by
3
&
R
to dismiss
this proceeding.
3
&
R had contended
that the administrative
citation issued by St. Clair County
to
3
& R was not properly
served upon 3
&
R and that,
as
a consequence,
the case should
be
dismissed due to
a lack
of
jurisdiction over
3
&
R.
Relying on
a document which had been submitted
by 3
& R with
its motion
to dismiss,
the Board
found that the administrative
citation was properly served.
Specifically,
the Board noted
that
the administrative citation had been sent
to James ~uirin.
3
&
R
had attached to
its motion
a copy
of 3
& R’s 1988 Annual Report
of the corporation.
3
& R sought
to use that report
to prove
that James Quinn
was not the registered
agent for 3
& R on
January
6,
1989.
However,
that
report indicated that James
Quinn
was an officer
of
the corporation,
specifically the
Secretary.
Now,
in its Motion for Reconsideration,
3
& R asserts that
“James Quinn
held
no position with the corporation during
1989”.
Attached
to this motion
is
an affidavit of James Quinn
which states that during 1989
he
“did not serve
in any capacity,
either
as
an officer
or registered
agent
of
the corporation”.
3
& R asserts again
that service
of the citation was not properly
effectuated.
In response,
St. Clam
County cites
35
Ill.
Adm.
Code
103.140(i)
and states that 3
& R waived its jurisdictional
objection by not filing its original motion
to dismiss
at
or
before
3
& R’S initial pleading or within
14 days after
receipt
of
the complaint.
Alternatively,
St.
Clam
County states that
the motion
should have been filed at least
14 days prior
to the scheduled
hearing
in this matter
in order
to comply with 103.120(a).
100—279
2
Finally,
St. Clam
County contends that the citation was
properly served.
Specifically, St. Clair County assents
that the
certified mail
receipt was signed by Alan
L. Baum and
that such
receipt
of the citation was sufficient
for service upon 3
&
R.
3
&
R replies that Baum is an employee
of
3
& R and that he
is not an agent of
3
& R for the service
of process.
3
& R
further argues
that service on an officer
of
a corporation
is
considered
service on the corporation only when the officer
is
personally
served.
3
& R cites Section 2—204
of the Code of
Civil Procedure
as authority for this position.
J
& R argues
in its Motion for Reconsideration
that the
procedural
rules cited
by St. Clam
County do not apply
to
administrative citations.
3
& R cites In The Matter Of:
3 and R
Landfill,
Inc.,
AC 88—23, AC 88—34
(November
17,
1988)
for the
proposition that administrative citation cases
are handled
differently from other types
of enforcement cases.
First,
the Board disagrees with J
& R’s suggestion
that
In
The Matter
Of:
3 and R Landfill,
Inc.,
AC
88—23,
AC 88—34
(November
17,
1988),
supports the contention
that the Board’s
procedural
rules set
forth by 35
Ill.
Adm. Code 103 are
inapplicable
to administrative citations.
In
fact,
in that case
the Board held:
The
circumstances
of
this
case
amply
illustrate
the need
for
careful
adherence
to
the
Board’s
procedural
rules,
particularly
with
respect
to
az~tions
involving
administrative citations.
(emphasis added)
Id. at
2.
In particular,
the Board was referring
to application
of
35
Ill.
Adm.
Code 103.140
to an administrative
citation case.
Section 103.140(i)
states:
Any party may participate
in
the proceedings
without
forfeiting
any
jurisdictional
objection,
if
such
objection
is
raised at or
before
the
time
the
respondent
files
his
initial
pleading
or
motion,
or,
if
no
pleading
or
motion
is
made,
within
14
days
after
receipt
of
complaint.
All
jurisdictional
objections
shall
conform
to
the requirements
of
subsection
(a).
In the case
at hand,
the administrative citation and the
proof
of service of that citation were filed
by St. Clair County
on January 12,
1989.
3
& R filed
its Petition for Review on
February 2,
.1989.
The petition makes no mention
of
a
100—280
3
jurisdictional
objection concerning
an alleged failure to serve
the citation.
A hearing was noticed
and scheduled
for May 17,
1989.
On May
8, 1989
3
& R filed
its motion to dismiss
in which
it
raised,
for
the first
time,
its jurisdictional objection.
Consequently,
3
& R did not raise
its jurisdictional
objection
when it tiled
its initial pleading,
which
in this case was 3
&
R’s February 2,
1989 petition for
review.
3
& R argues that
the Board lacks jurisdiction
over its
person due
to failed service.
However,
given the applicability
of Section 103.140
and the plain language
of subsection
(i),
the
Board
finds
that 3
& R forfeited
its jurisdictional
objection by
failing
to raise the objection
at the
time
3
&
R filed
its
initial pleading
in this matter.
By failing to raise
its
objection at that time,
3
& R submitted
itself
to the Board’s
jurisdiction.
Cf. Waste Management
of Illinois,
Inc.,
AC 88—31
(August 4,
1988)
(the Board vacated
a default Order,
on the
grounds
of improper service, pursuant
to respondent’s motion
which was the initial
filing of
the respondent)
and Waste
Management
of Illinois,
Inc.
,
AC 88—54
(August
4,
1988)
(finding
service proper,
the Board denied respondent’s motion
to dismiss
which had challenged
the jurisdiction based
on alleged failed
service
and which was filed concurrently with repondent’s
petition for review).
The case at hand
is distinct from the situation where the
Board would
lack
jurisdiction due
to substantive deficiencies
in
the citation which was served.
e.g.
In The Matter
Of:
3 and R
Landfill,
Inc.,
AC 88—23,
AC 88—34, October
20, 1988 and November
17,
1988).
Here,
3
& R argues that the Board does not have
jurisdiction
over
3
& R itself due
to
a failure
to actually serve
the citation.
The Board
notes
that it did not address St. Clair County’s
waiver argument
in its Order May 11,
1989.
Upon reconsideration
and for the reasons stated herein,
the Board re—affirms
its
denial
of
3
& R’s May 16th motion
to dismiss.
This matter
is
to proceed
to hearing.
IT
IS SO ORDERED.
I,
Dorothy M.
Gunn,
Clerk
of the Illinois Pollution Control
Board,
hereby certify tha~tthe above Order was adopted on
the
~
day of
________________,
1989,
by
a vote
of ________________________*
V
&~.,
~
~
/2?
ijorothy
!4.
G,ufr1 Clerk
Illinois Po~ution Control Board
100—281