ILLINOIS POLLUTION

CONTROL

BOARD

April 21,

1994

PEOPLE OF

THE

STATE

)

OF ILLINOIS,

)

Complainant,

)

v.

)

PCB 94—84

(Enforcement)

WINNEBAGO RECLAMATION

)

SERVICE,

INCe,

an Illinois

corporation, and

WM.

LANS

SON’S CO.,

INC.,

an Illinois corporation,

Respondents.

ORDER

OF THE

BOARD

(by J. Theodore Meyer):

This matter is before the Board on two motions.

First,

respondent Wm. Lans Son’s Co.,

Inc.

(Lans)

asks that attorneys

Donald P. Gallo and Cynthia E.

Smith, who are not licensed to

practice in Illinois, be permitted to appear in this matter.

That motion is granted.

Second, on April

4,

1994, Lans filed a motion to dismiss.

Complainant the People of the State of Illinois filed its

response to the motion to dismiss on April 15, 1994.

Lans seeks to dismiss the claims brought against it in the

People’s complaint, filed on March 11,

1984.

Lans contends that

the sections of the Environmental Protection Act

(Act)

(415 ILCS

5/1

et

seq.

(1992)) and Board regulations cited by the People in

their complaint against Lans were not in effect during the period

(1978 to November 1991)

in which Lans is alleged to have been in

violation of those provisions.’

Lane argues that because those

provisions were not in effect,

it could not have been in

violation of them.

Lans also contends that shredded auto fluff

is not a “special waste” or an “industrial process waste”.

Thus,

Lane asks that the Board dismiss the complaint as to it.

In response, the People do not dispute the accuracy of the

effective dates given by Lans in its motion to dismiss.

However,

the People contend that the facts alleged in the complaint

establish violations of statutory and regulatory provisions which

were in effect between March 15,

1979 and November 1991, and that

The complaint alleges that Lans violated Sections 22.01

and 21(e) of the Act, and 35 Ill.Adm.Code 808.121,

808.122,

809.301,

and 809.302, between 1978 and November 1991.

---

2

those provisions are predecessors of the sections alleged in the

complaint.

The People argue that the complaint should not be

dismissed, and ask that the Board give leave to amend counts VII

and VIII of the complaint to amend the statutory and regulatory

violations alleged,

and the corresponding dates.

Initially, we find that Lane’ motion to dismiss is untimely.

Section 103.140(a)

of the Board’s procedural rules require that

all motions to dismiss the complaint be filed within 14 days

after receipt of the complaint.

(35 Ill.Adm.Code 103.140(a).)

The certificate of service states that the complaint was mailed

on March 11,

1994.

There is a rebuttable presumption that

service by first class mail is complete four days after mailing.

(35 Ill.Adm.Code 101.144(c).)

Thus, service of the complaint is

presumed complete by March 15,

1994,

and any motion to dismiss

was due by March 29,

1994.

The motion to dismiss was filed on

April

4,

1994,

and is therefore untimely.

Even if the motion to dismiss were timely, we would deny the

motion.

The facts alleged in the complaint may establish

violations of predecessors of the sections cited in the

complaint.

As to Lans’

contention that shredded auto fluff is

neither a special waste nor an industrial process waste, that is

an issue to be argued at hearing.

The People are hereby given leave to amend the complaint.

The amended complaint shall be filed no later than May 12,

1994.

IT IS SO ORDERED.

I, Dorothy N. Gunn, Clerk of the Illinois Pollution Control

Board, hereby certi~y tk~a the above order was adopted on the

~/-‘~4-

day of

______________,

1994, by a vote of

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~Dorothy

N. ~t,n, Clerk

Illinois PqlZution Control Board