ILLINOIS POLLUTION CONTROL BOARD
August
4,
1988
WASTE MANAGEMENT OF
)
AC 88-54
ILLINOIS,
INC.,
Respondent.
ORDER OF THE BOARD
(By J.
Anderson):
On May 23,
1988, Tazewell County filed with the Board
a copy
of an administrative citation issued
to Waste Management
of
Illinois,
Inc.
(WMI)
for an alleged violation at its Tazewell
County Landfill.
On June 16,
1988, WMI filed a “Special And
Limited Appearance For Purpose Of Motion To Dismiss For Improper
Service And Lack Of Jurisdiction And Provisional Petition For
Review And Request For Stay.”
On June 30,
1988, the Board issued
an Order staying the appeal and directing Tazewell County
to file
a response
to WMI’s Motion
no later than July
11,
1988 to allow
the Board
to again consider
the 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,
as this
proceeding has been stayed,’ the Board believes that no party has
been prejudiced.
Therefore,
the filing
is accepted.
The Board
today denies the motion
to dismiss, accepts the Provisional
Petition For Review, and sets this matter
for hearing.
As
a preliminary matter,
the Board appreciates WMI’s reasons
for filing
a
“provisional petition for review” concurrently with
a special and limited appearance.
However,
the Board notes
that,
in the absence of
a procedural rule on special appearances,
it
will
look to Section 2—301(a)
of the Code
of Civil Procedure of
Illinois
for guidance.
Section 2—301(a) states:
“Section
2—301.
Special appearance.
(a)
Prior
to
filing
any
other
pleading
or
motion,
a
special
appearance
may
be
made
either
in
person
or
by
attorney
for
the
purpose
of
objecting
to
the
jurisdiction
of
the
court
over
the person
of
the defendant.
A special
appearance
may
be
made
as
to
an
entire
proceeding
or
as
to
any
cause
of
action
involved
therein.
Every appearance,
prior
to
judgment,
not
in compliance with the foregoing
is
a general
appearance.”
(emphasis added)
91—191
—2—
Here, WMI
submitted its special and limited appearance not prior
to but concurrent with its provisional petition
for
review.
Were
the Board
to invoke Section
2—301(a), WMI would
be held to have
submitted
to the general jurisdiction
of
the Board.
However,
the
Board believes that WMI
filed
a special appearance
to protect its
right
to contest jurisdictional matters without the 35 day
petition for
review period expiring.
The Board will not require
special appearances
for the purpose of entertaining
jurisdictional issues
in the administrative citation context.
Thus,
the Board finds
the “special appearance” unnecessary
in any
event.
The Board will refer
to
the “special and limited
appearance
for purposes of motion
to dismiss” simply
as
Respondent’s “motion to dismiss.”
In its motion to dismiss,
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 apparently sent
by certified mail
to
3550 East Washington, East Peoria,
Illinois on May
18,
1988,
by
the Tazewell County Health Department.
WMI further notes
that
the
return receipt was signed by
“Delores Metiefa” and
is dated
May
31,
1988.
WMI states that no such individual
or anyone by
a
similar name
is employed at the Tazewell County Landfill.
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 dismiss the administrative citation as not
properly served within 60 days after the date of the observed
violation as
required by Section 31.1(b)
of the Act.
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
it relied on a letter from
Respondent dated March
29,
1988,
in having the Respondent served
at 3550 West Washington St., East Peoria,
Illinois.
However,
the County states that it will
serve all future
administrative citations upon CT Corporation Systems.
The County
believes that the appropriate
remedy would be to allow WMI
leave
to file
a Petition for Review of the citation.
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
9 1—192
—3--
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 WMI at 3550 East Washington
St.,
East Peoria,
IL.
The Board notes
that the letter
the County
relied upon in serving the Respondent
at the East Peoria address
was attached
to the County’s Response.
The letter,
dated March
29,
1988,
is from WMI’s attorney to the Assistant State’s
Attorney for Tazewell County.
This letter relates
to the proper
identification of the operator
of
the Tazewell County Landfill
and names who may be served with
a citation.
The pertinent
language states:
the
amended
citation can
be
served directly
on the
operator,
at
its
facility,
Waste
Management
of
Illinois,
Inc.,
3550
East
Washington
Street,
East
Peoria,
Illinois
61611,
together with
courtesy
copies
sent
to
Waste
Management
of
Illinois,
Inc.,
3003
Butterfield Road,
Oak Brook, Illinois
(emphasis added)
Although this letter
refers
to another administrative citation
that was being amended, the Board believes that Tazewell County
was justified
in believing that administrative citations for
violations at the Tazewell County Landfill could be served at
that address.
In other words,
the Board construes this letter as
conferring “authorized agent” status under Section 103.123 upon
the operator at the address of the facility for purposes
of
service of process.
WMI’s motion to dismiss on this basis
is therefore denied.
Tazewell County has fulfilled all that is
required
of
it by
serving
the citation on the proper respondent at
a proper address
within 60 days of the observed violation.
If,
after fulfilling
these requirements,
the issuer sends
a citation package and an
unknown individual signs the receipt,
the burden necessarily
falls upon the Respondent
to file, within
a
reasonable time of
its learning
of
the citation,
(I)
a motion to stay the proceeding
91—193
—4—
if necessary* and
(2)
a motion for
leave
to file
a petition for
review,
if such petition would be filed
after
the statutory 35
day period.
As the Board today denies WMI’s motion
to dismiss,
and
as WMI concurrently filed
a “provisional petition for
review”,
the Board grants W~4Ileave
to file the petition for
review and
this matter
is authorized for hearing.
Finally, WMI moved
to dismiss
the citation on the grounds
that
it does not include a description of the weather conditions
prevailing during the inspection,
as required by Section
31.l(b)(2)
of the Act “insofar as
it omits any reference
to wind
conditions.”
WMI argues that wind conditions are
“obviously
a
crucial
element
of
an administrative citation”,
especially
in
light of the litter violations charged
therein.
The Board
believes that this issue would be appropriately addressed
at
hearing.
All other matters raised
in Respondent’s motion may be
addressed at hearing
as well.
WMI’s Motions To Dismiss are denied.
This matter
is set for
hearing on WMI’s Petition For Review.
IT IS SO ORDERED.
I, Dorothy
M.
Gunn, Clerk of
the Illinois Pollution Control
Board, hereby certify that the above Order was adopted on
the
______________
day of
~
,
1988 by a vote
of
-i--s’
3i.
Dorothy M~7Gunn, Clerk
Illinois Pollution Control Board
*
The Board
fully recognizes
the lack of procedural guidance
encountered by Respondent
in preparing
its response
to the
citation and notes that the Respondent proceeded appropriately.
(continued)
91—194