ILLINOIS POLLUTION CONTROL BOARD
December 7,
1995
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
)
Complainant,
v.
)
AC 96—12
)
(Administrative Citation)
RCS, INC.
and MICHAEL DUVALL,
)
(IEPA No. 559-95-Ac)
Respondents.
ORDER OF THE BOARD
(By J.
Yi):
On September 13,
1995 the Illinois Environmental Protection
Agency (Agency)
filed an administrative citation against RCS,
Inc. and Michael Duvall as operators of a facility located in
Jersey County, Illinois.
The Agency filed the administrative
citation pursuant to Section 31.1 of the Environmental Protection
Act (Act).
(415 ILCS 5/31.1
(1994).)
On October 12,
1995,
respondents filed a limited appearance
challenging the Board’s jurisdiction to issue a default judgement
in this administrative citation proceeding.
Additionally,
respondents filed a petition for review and dismissal.
On
November 2,
1995,
the Board received a response to the motion to
dismiss filed by the Agency.
On November 13,
1995, the
respondents filed a motion to file a reply to the Agency answer
and its reply.
The Board accepts both of these filings.
For the reasons stated below the Board grants the motion to
dismiss the respondents RCS,
Inc. and Michael Duvall.
Facts
On September 13,
1995 the Agency filed an administrative
citation against RCS,
Inc.
and Mr. Duvall,
as operators,
alleging
a violation of Section 21(o) (9)
of the Act.
(415 ILCS 5/21(o) (9)
(1994).)
The Agency attorney states,
in a cover letter attached
to the administrative citation, that the administrative citation
was “mailed to Respondents on September 11,
1995,
certified mail,
return receipt requested”,
and that “~as
soon as
I receive the
green receipt card back,
I will notify you so that your files can
reflect the exact date of service..
.“.
(AC at 1.)’
The filing
1The administrative citation filed with the Board will be
referenced as “AC at
“,
the respondents motion to dismiss will
be referred to as “Mot.
at
“,
the Agency’s response will be
referenced as “Resp.
at
“
and the respondents reply will be
2
states that service on RCS, Inc. was sent to Greg Ribaudo at 3950
Mississippi Avenue, Cahokia,
Il.
66206 and to Michael Duvall,
Chief Operator, RCS,
Inc. Landfill, 1386 Crystal Lake Road,
Jerseyville,
Il.
62052, which is the address of the landfill.
(AC at 1,9.)
The administrative citation does not indicate that
service had been made at the time of the its filing.
On October
20, 1995 the Agency filed proof.of service for Michael Duvall.
Attached to the proof of service was a green receipt card
indicating that on September 13,
1955, Sandy Moore signed under
the signature as “Agent” for Mr. Duvall.
Arguments
As stated previously,
on October 13,
1995, the respondents
through their attorney filed a “Special and Limited Appearance
Petitioning the Illinois Pollution Control Board for Review and
Dismissal of the Administrative Citation.”
(Not. at 1.)
The
respondents argue that the Section 31.1(b)
of the Act
specifically directs the Agency to personally serve the
administrative citation upon the named persons which, therefore,
precludes sending the administrative citation by certified or
registered mail.
(Not. at 2.)
Although the respondents
recognize that the Administrative Procedure Act
(APA)
and the
Board’s procedurals permit service by registered or certified
mail,
they argue that Section 31.1(e)
specifically exempts the
administrative citation process from the requirements of the APA
and that if the statute sets forth the process of service it must
be strictly adhered to.
(Mot. at 2-4, Reply at 3-6.)
Thus,
the
respondents conclude that since the administrative citation was
served through the use of certified mail and was not personally
served the Board lacks jurisdiction to hear the matter.
Alternatively, the respondents argue that even if service by
registered or certified mail is allowed the Agency has not
demonstrated that service was done in compliance with the Board’s
regulations.
(Mot.
at 5.)
Specifically, the respondents argue
that the Agency has failed to immediately file proof of service
and demonstrate service on both respondents.
(Not. at 5—8.)
The
respondent, Mr. Duvall argues that he was not personally served
and that he did not personally sign a mail receipt for the
administrative citation.
(Not. at 6.)
Furthermore,
citing to
~
re 3 & R Landfill, AC 89—79,
(July
13,
1989), Mr. Duvall argues
“...that there is no evidence that any person who might have
signed a letter containing an administrative citation was an
‘authorized agent’ as required by the Act”.
(Not.
at 6-7.)
RCS,
Inc. argues that there is no evidence that it was served either
personally or through its agent.
(Mot. at 7.)
referred to as “Reply at
“.
3
The Agency argues that the respondents’ interpretation of
the statute would have a respondent in an enforcement proceeding,
which could result in much more severe penalties being assessed,
being served by registered mail and certified mail, but a
respondent in an administrative citation, where the penalties are
statutorily set at $500 per violation, being served personally.
(Resp.
at 1.)
The Agency concludes by arguing that it is more
equitable and consistent for service of process in administrative
citations to include service by registered and certified mail.
(Resp.
at 2.)
In response to respondents’ arguments that the
Agency failed to comply with the Board’s procedural rules and
decisions, the Agency states that it has been its policy to mail
the proof of service immuediately upon receiving the green card
receipt from the U.S. Postal Service.
(Resp. at 2.)
In cases
when there are two respondents, the Agency holds the green card
receipts until all are received.
(Resp.
at 2.)
In this case,
the Agency states it was waiting for the green card receipt to be
returned for RCS,
Inc.
and has been subsequently informed by the
U.S. Postal service that the service of the administrative
citation was undeliverable.
(Resp. at 2.)
The Agency argues that it has complied with Board
regulations in the service of the administrative citation against
Mr. Duvall by sending the administrative citation by certified
mail to his place of employment.
(Resp.
at 2.)
Additionally,
citing to Dobrowolski v. Laporte,
348 N.E.2d 237
(1st Dist.
1976), the Agency argues that the method of service in this case
is reasonable and to require the Agency to ensure that a person
signing as agent is the agent for the person being served is
unreasonable and would subvert the purpose of utilizing
registered and certified mail.
(Resp.
at 3-4.)
The Agency
requests that the Board dismiss the action against RCS,
Inc. due
to the lack of service and deny the motion to dismiss concerning
Mr. Duvall and set this matter to hearing.
(Resp.
at 4.)
The respondent,
Mr. Duvall,
argues in his reply to the
Agency’s response, that Dobrowolski, does not apply because the
court was construing Supreme Court Rule 284(b) which did not
require the action to be directly served on the defendant as does
Section 31.1 of the Act.
(Reply at 1-2.)
Furthermore, the rule
has been amended which limits the precedential value of
Dobrowolski.
(Reply at 2.)
Finally, respondent re-argues the
same issues in its motion to dismiss concerning whether service
of an administrative citation may be done by registered or
certified mail.
(Reply at 3-6.)
Applicable Law
Section 31.1(b)
of the Act in pertinent part states the
following:
4
the Agency
...
may issue and serve an
administrative citation upon such person
within not more than 60 days after the date
of the observed violation.
Each such
citation issued shall be served upon the
person named therein or such person’s
authorized agent for service of process, and
shall include...
The Board’s procedural regulations governing service of process
are found in 35
Ill. Adm. Code 101.141,
101.243, and 103.123
which provide in pertinent part as follows:
Section 101.141
A copy of all initial filings in any Board
proceeding shall be served upon all persons,
required by this Chapter to be served, or
their registered agent.
35
Iii. Adm. Code
102 through 120 set forth more specifically
who must be served in any given type of Board
proceeding.
Service of all initial filings
shall be made personally, or by registered,
certified or First Class mail,
or by
messenger service.
However,
initial
complaints in enforcement proceedings
pursuant to 35
Ill.
Adin. Code 103 must be
served personally, by registered or certified
mail,
or by messenger service.
Section 101.243(b), (c)
b)
All motions challenging the jurisdiction
of the Board shall be filed prior to the
filing of any other document by the
moving participant or party, unless the
Board determines that material prejudice
will result.
Such participant or party
will be allowed to appear specially for
the purpose of making such motion.
c)
A person may participate
in a proceeding
without waiving any jurisdictional
objection if such objection is timely
raised pursuant to subsection
(b).
Section 103.123
a)
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 mail with
5
return receipt signed by the respondent
or his authorized agent.
Proof shall be
made by affidavit of the person making
the 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.
Discussion
The Board disagrees with the respondents’ interpretation of
Section 31.1 of the Act in that service can not be made by
registered or certified mail.
Section 31 of the Act concerning
enforcement actions states that “...the Agency shall issue and
serve upon the person complained against a written notice...”
(415 ILCS 5/31
(1994).)
Section 31.1(b) of the Act states that
the administrative citation shall be “...served upon such person
named therein..
.“.
Arguably there is no language difference
between the two sections requiring service.
Section 31.1(e)
exempts certain provisions of the APA from applying to the
administrative citation proceeding.
The Board interprets that
exemption of sections of the APA as relating the hearing in the
administrative citations and not for the purposes of service.
Those particular sections of the APA concern “Contested
cases—Notice—Hearing”, “Disqualification of the administrative
law judge”,
“Record in contested cases”,
“Rules of Evidence—
Official Notice”,
“Proposal for Decision”,
“Decisions and orders”
and “Ex parte communication”,
which are all related to the
hearing.
None of the APA sections address service by the
complainant on the respondent in an action.
Instead the APA
section entitled “Contested cases-Notice-Hearing”
(5 ILCS 100/10—
25) addresses when the agency gives notice of a mandatory
hearing.
(415 ILCS 5/31.1(d) (1)
(1994).)
However,
in
administrative citations there is no mandatory hearings.
The
Board finds that General Assembly did not mean to exclude service
by registered mail or certified mail by the language of Section
31.1(e)
of the Act.
The Board has been given the general
authority to adopt such procedural rules to carry out the
purposes of the Act.
(415 ILCS 5/26 (1994).)
The Board has
adopted, pursuant to the APA, procedural rules which apply
equally to the enforcement actions brought pursuant to Title VIII
of the Act.
Those procedural rules set forth the acceptable
methods of service such as the use of registered or certified
mail.
The Agency concedes that the Board should dismiss RCS, Inc.
because service was not delivered.
RCS, Inc states that it was
never served with the administrative citation.
Pursuant to
Section 31.1(b) the Agency must serve the administrative citation
6
within 60 days of the observed violation.
Since the Agency has
not served the administrative citation upon RCS,
Inc. within 60
days of the observed violation, RCS,
Inc.
is dismissed from this
matter.
Mr. Duvall argues that he was not served and that there is
no evidence that Sandy Moore is his “authorized agent” citing to
In re J
& R Lañdfill.
In In re~J& R Landfill the Board was
confronted with a similar situation as here.
In In re J
& R
Landfill St. Clair County named J
& R Landfill Inc.
(J&R)
as a
respondent and sent the administrative citation by registered or
certified mail to a Mr. James Quinn who was neither the
registered agent nor an officer of J&R at the time of service.
St. Clair County asserted that the mail receipt was signed by
another employee of J&R, Dennis Blevins, which constitutes
adequate service.
The Board stated the following:
Apparently Dennis Blevins signed the certified mail
receipt.
Although St. Clair County states that Dennis
Blevins is an agent for J&R,
it is not argued that Mr.
Blevins is an “authorized agent” in terms of receiving
administrative citations for J&R.
Moreover,
St. Clam
County does not indicate a factual basis for its
conclusion that Mr. Blevins is an agent of any kind for
J&R.
Mr. Blevins signature is by itself no evidence of
agency:
it is well settled that agency cannot be
imputed solely on the basis of representations by the
putative agent.
See Schoenbercier v. Chicago Transit
Authority,
84
Ill. App.3 rd 1132,
405 N.E.2d
1076(1980).
In addition, for service of process, even
apparent authority is insufficient.
See Slates v.
International House of Pancakes,
90 Ill. App. 3rd 716,
413 N.E.2d 457
(1980).
In this case, however, we are determining whether service can be
made on an individual not a corporation.
Usually an individual
will not have a registered agent and service is usually done at
the individual’s place of abode.
In this instance the Agency attempted service by sending the
administrative citation by certified mail to Mr. Duvall’s place
of employment.
In Schusterman v. Northwestern Medical Faculty,
Foundation,
142 Ill.Dec.
437,
552 N.E.2d 1178,
195 Ill.App.3d 632
(1st.
Dist.) the court held that service cannot be made on an
individual by substitute service on a business partner.
While
the Agency argues that it would be impracticable to require the
Agency to perform an inquiry as to the actual agency status of a
person who states that they are an “authorized agent”, the Agency
could have avoided this by sending the administrative citation to
Mr. Duvall’s usual place of abode pursuant to the Illinois Code
of Civil Procedure.
(735 ILCS 5/2-203(a)
(1994).)
We find that
since Mr.
Duvall, or that his authorized agent,
did not sign the
7
receipt, the Agency failed to serve Mr. Duvall with the
administrative citation within 60 days of when the alleged
violation was observed.
Pursuant to Section 31.1(b) of the Act,
Mr. Duvall dismissed from this matter.
Conclusion
For the reasons stated above we find that the Agency has
failed to properly serve respondents with the administrative
citation within 60 days of the observed alleged violation as
required pursuant to Section 31.1(b)
of the Act.
The Board
accordingly dismisses the administrative citation as to each
respondent and closes the docket in this matter.
IT IS SO ORDERED.
Section 41 of the Environmental Protection Act (415 ILCS
5/41
(1994)) provides for the appeal of final Board orders within
35 days of the date of service of this order.
The Rules of the
Supreme Court of Illinois establish filing requirements.
(See
also 35 Ill.Adm.Code 101.246 “Motions for Reconsideration”.)
I, Dorothy N. Gunn,
Clerk of the Illinois Pollution Control
B~rd,hereby certify that the above order was adopted on jthe
7~-’~
day of
____________________,
1995,
by a vote of
~O
Dorothy M4Gunn,
Clerk
Illinois ~‘ollutionControl Board
