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

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