ILLINOIS POLLUTION CONTROL BOARD

October 2, 1997

PEOPLE OF THE STATE OF ILLINOIS,

Complainant,

v.

LEROY CECH d/b/a L & K AMERICAN

WRECKING,

Respondent.

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PCB 97-138

(Enforcement - Air)

ORDER OF THE BOARD (by J. Theodore Meyer):

On September 26, 1997, complainant filed a motion for leave to serve respondent

Leroy Cech d/b/a L & K American Wrecking (respondent) with the complaint in this matter by

publication. Complainant requests that it be allowed to serve respondent by publication

because it has been unable to effectuate service of the underlying complaint, filed on February

18, 1997, on respondent. For the following reasons, the Board grants complainant’s motion.

Specifically, complainant’s motion alleges that on February 18, 1997, complainant

attempted to serve the underlying complaint in this matter on respondent by certified mail.

Mot. at 2. The envelope containing the complaint, however, was returned unopened and

marked “unclaimed.” Mot. at 2. The motion further states that from March 1997 to May

1997 an investigator with the Illinois Attorney General’s Office made numerous attempts to

personally serve respondent at his residence. The investigator verified respondent’s address

through the Secretary of State’s Office and the United States Post Office. Respondent,

however, did not respond to the investigator’s attempts to contact him. Based on respondent’s

actions, complainant alleges that respondent is avoiding service and requests that it be allowed

to serve respondent by publication, pursuant to Section 2-206(a) of the Code of Civil

Procedure (Code) (735 ILCS 5/2-206(a) (1996)). Mot. at 2.

Section 31(d) of the Environmental Protection Act (Act) (415 ILCS 5/31(d) (1996))

provides that any person may file with the Board a complaint against any person allegedly

violating the Act or any rules or regulations promulgated thereunder. Section 31(d) further

directs that the complainant must immediately serve a copy of such complaint upon the person

named in the complaint. See 415 ILCS 5/31(d) (1996). The Board’s procedural rules

establish the methods of service of the complaint, including personal service, registered mail,

and certified mail. See 35 Ill. Adm. Code 103.123(a).

While Section 103.123 provides for the method of service of a complaint in an

enforcement action, the Board’s procedural rules do not cover the situation where service has

been attempted, but respondent deliberately avoids service. Section 101.100(b) of the Board’s

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procedural rules does provide, however, that “in [the] absence of a specific provision of the

rules to govern a particular situation, the parties or participants may argue that a particular

provision of the Code of Civil Procedure or the Illinois Supreme Court Rules provides

guidance for the Board or hearing officer.” 35 Ill. Adm. Code 101.100(b). In the present

case, complainant argues that Section 2-206(a) of the Code which allows for service by

publication should apply in this case. The Board agrees.

Section 2-206(a) provides in pertinent part:

Whenever, in any action affecting property or status within the jurisdiction of

the court . . .plaintiff or his or her attorney shall file, at the office of the clerk

of the court in which the action is pending, an affidavit showing that the

defendant resides or has gone out of this State, or on due inquiry cannot be

found, or is concealed within this State, so that process cannot be served upon

him or her, and stating the place of residence of the defendant in known, or that

upon diligent inquiry his or her place of residence cannot be ascertained, the

Clerk shall cause publication to be made in some newspaper published in the

county where the action is pending . . . . The publication shall contain notice

of the pendency of the action, the title of the court, the title of the case,

showing the first named plaintiff and the first named defendant, the number of

the case, the names of the parties to be served by publication, and the date on or

after which default may be entered against such party. 735 ILCS 5/2-206(a)

(1996).

As noted earlier, the Board’s procedural rules do not cover the situation where attempts

at serving respondent with the complaint have been made, but respondent deliberately avoids

service. In this type of situation, the Board finds it appropriate to look to Section 2-206(a) of

the Code for guidance because if service by publication were not allowed, attempts to serve

respondent may go on indefinitely and would frustrate the State’s attempt to enforce the Act.

Although Section 2-206(a) of the Code directs the clerk of the court to cause publication of the

notice, the Board believes that in the context of proceedings before the Board it is more

appropriate to have the complainant bear the burden of publication as it is complainant’s duty

under the Act to serve respondent with the complaint. See 415 ILCS 5/31(d) (1996).

Additionally, the Board finds that it is more appropriate for the notice to be published in the

county where respondent resides, if known, or in the county of respondent’s last known

address, rather than the county where the action is pending.

In the present case, the motion and attached affidavit indicate that service of the

underlying complaint in this case has been attempted on respondent several times. Mot. at 2;

Aff. at 1-2. Service on respondent has been attempted by registered mail, but respondent will

not accept any registered mail in person. Moreover, personal service has been attempted on

respondent on several different occasions. On each occasion, no one at respondent’s residence

answered the door, nor did the investigator receive a response, even though he left his business

card at respondent’s address. Aff. at 1. Based on these circumstances, the Board finds that

complainant has diligently attempted to serve respondent by the methods contained in Section

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103.123, that upon due inquiry respondent cannot be found, and that any further attempts at

personal service would be futile. Accordingly, the Board grants complainant’s motion to serve

respondent by publication, pursuant to Section 2-206(a) of the Code.

Complainant shall cause publication of a notice of the pendency of this action in a

newspaper of general circulation published in the county in which respondent resides, if

known, or in the county of respondent’s last known address. If no newspaper is published in

the county in which respondent resides, if known, or in the county of respondent’s last known

address, then publication shall be in a newspaper published in an adjoining county, having

circulation in the county in which respondent resides, if known, or in the county of

respondent’s last known address. The publication shall contain notice of the pendency of the

action, the title of the Board, the title of the case, the number of the case, the name of the

party to be served by publication, and the day on or after which default may be entered against

such party. The notice shall be published at least once in each week for three successive

weeks. Complainant is further directed to send a copy of the notice to the addresses listed in

the notice within 10 days of the first publication of the notice by mail. Complainant shall also

file with the Board proof that it has sent a copy of the notice to respondent and has caused

publication of the notice in conformity with these provisions immediately upon completion of

the final publication. No hearing shall be scheduled in this matter until at least 30 days after

the date of the first publication. If respondent fails to appear at the hearing, a default order

may be entered at that time. See 35 Ill. Adm. Code 103.220.

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 2nd day of October 1997, by a vote of 7-0.

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board