ILLINOIS POLLUTION CONTROL BOARD
July 13,
1989
IN THE MATTER OF:
J
& R Landfill,
Inc.,
)
AC 89—78
an Illinois Corporation,
)
(St. Clair County
)
Docket No.
89—8SC)
Respondent.
ORDER OF THE BOARD
(by J. Marlin):
On May
18, 1989 J
& R Landfill,
Inc.,
(J
&
R)
filed
a
Petition for Review and Motion to Dismiss.
In the filing,
J
& R
simultaneously petitions for
review and moves
for the dismissal
of this citation for jurisdictional reasons.
St. Clair County
filed a Motion to Dismiss Respondent’s Petition for Review and
Motion to Dismiss on June
5,
1989.
Although
St. Clair County
requests that the Board dismiss J
& R’s May 18th filing,
the
Board construes
St.
Clair County’s filing as
a response
to J
&
R’s May 18, 1989 motion to dismiss.
In its
response,
St.
Clair
County moves the Board
to “deny respondent’s motion
to
dismiss...for jurisdictional reasons”.
On June
8,
1989,
J
& R
filed an Objection To Motion To Dismiss Respondent’s Petition For
Review And Motion To Dismiss.
Since St. Clair County’s June 5th
filing is
a
response
to J
& R’s May
18th
filing,
J
& R’s June
8th
filing amounts to a reply.
The Board generally does
not allow
the moving party an opportunity
to reply.
As a result,
the Board
has not considered J
& R’s June 8th filing.
Neither has the
Board considered St. Clair County’s Opposition
to Respondent’s
Motion To Dismiss which was
filed on June
14,
1989 and is
evidently filed in response
to
J
& R’s June 8th filing.
Notwithstanding this barrage of filings,
the matter
at hand
turns on one issue:
whether J
& R was served with the
citation.
J
& R claims that it was not served with the citation
and that as
a result,
the Board lacks jurisdiction.
Specifically, J
&
R asserts that the citation was mailed,
by
certified mail,
to James Quinn who was neither the registered
agent
of J
& R nor an officer of
J
&
R at the time of the
attempted service.
Attached to J
& R’s filing
is
.a copy of
J
&
R’s 1989 Annual Report which indicates that Avis K. Quinn
is the
registered agent.
St. Clam
County asserts that the certified mail receipt was
signed by Dennis Blevins.
St. Clam
County concludes that Dennis
Blevins
is an agent of
J
&
R and that his signature,
indicating
receipt of the administrative citation, proves service on
J
&
R.
The Board confronted
a similar situation
in Waste Management
of Illinois,
Inc., AC 88—31
(August
4,
1988).
In that case,
the
citation issued to Waste Management
of
Illinois,
Inc.,
was sent
to a person who was an agent of the respondent
for purposes
of
operating the site.
Yet,
he was not the registered agent
for
the
1r~1—161
2
corporation.
Neither was
it contended that
the addressee was an
“authorized agent”
for the purposes of receiving service of
process.
As a result,
the Board found that the citation was not
properly served on Waste Management of
Illinois,
Inc.
Id. at
3.
Cf. Waste Management of Illinois,
Inc.
AC 88-54
(August
4,
1988).
(the Board found proper service when the administrative
citation was sent to an address which the respondent had
previously indicated as the appropriate place to mail
administrative citations).
Section 31.1(b) of the Act states in part:
Each
such
citation
issued
shall
be
served
upon
the
person
named
therein
or
such
person’s
authorized
agent
for
service
of
process....
Ill. Rev.
Stat.
1987,
ch.
1ll~,par. 1031.1(b).
Section 103.123 of the Board’s procedural rules states1:
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
on
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)
35
Ill.
Mm.
Code
103.123.
The Board notes
that on June
8,
1989
it adopted Section
101.141,
Service of
Initial Filings, which became effective on
July
10,
1989.
(R88—5A).
That Section requires, that initial
filings be served upon the person required to be served or that
person’s registered a9ent.
Registered agent
is defined by
Section 101.101
as
“a person registered with the Secretary of
State
for the purpose of accepting service of notices
for any
entity,
or
a person otherwise authorized in writing as an agent
for
the purpose of accepting service of notices
for that entity
in Board proceedings”.
Since
these Sections were not
in effect
during the relevant time frame for this case,
the Board has not
applied these
rules
in this matter.
iflI--162
3
Certainly a registered agent of a corporation respondent
would be considered an “authorized agent”.
However, conceivably
some person other than the registered agent could be an
“authorized agent”
for the purposes of
receiving an
administrative citation.
eg: Waste Management, AC 88—54.
Here,
the citation was sent to James Quinn who,
for the
relevant time period, was neither the registered agent nor an
officer of J
& R.
It
is not contended that he was an “authorized
agent”
for J
& R in terms of receiving administrative citations.
Apparently Dennis Blevins signed the certified mail
receipt.
Although St. Clair County states that Dennis Blevins
is
an agent of J
& R,
it
is not argued that Mr. Blevins
i’s an
“authorized agent”
in terms of receiving administrative citations
for J
& R.
Moreover,
St. Clair 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 Schoenberger
v. Chicago Transit Authority,
84 Ill.
App. 3rd 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
Iii.
App.
3rd 716,
413 N.E.
2d 457
(1980).
The Board
notes that J
& R raised its jurisdictional
objection concerning service of the citation at the time J
& R
filed
its initial pleading
in this matter.
Thus,
J
& R has
timely raised its objection pursuant
to 35
Ill. Adm.
Code
103.140(i).
The Board finds that J
& R was not served with the
administrative citation.
J
& R’s motion
is granted, and this
matter
is dismissed.
Section 41 of
the Environmental Protection Act,
Ill.
Rev.
Stat. 1987 ch.
111 ~
par.
1041, provides for appeal
of
final
Orders of the Board within
35 days.
The Rules of the Supreme
Court of
Illinois establish filing requirements.
IT IS SO ORDERED.
Board Member
B. Forcade dissented.
I, Dorothy M. Gunn,
Clerk of
the Illinois Pollution Control
Board,
hereby certify that the above Order was adopted on
the
/~‘~—
day of
_______________,
1989, by a vote
of
~
-/
y)~
~
I3orothy M. ~nn,
Clerk
Illinois Pollution Control Board
1’)1—163