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

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