ILLINOIS POLLUTION CONTROL BOARD
October 2, 2003
PEOPLE OF THE STATE OF ILLINOIS, )
)
Complainant, )
)
v. ) PCB 02-77
) (Enforcement - Land)
MILLENIUM RECYCLING & SOLID )
WASTE CONSULTANTS, INC., SHERRI )
CLEMENTI, individually and as president of )
MILLENIUM RECYCLING & SOLID WASTE )
CONSULTANTS, INC., and MICHAEL )
LORENCE, individually, )
)
Respondents. )
ORDER OF THE BOARD (by M.E. Tristano):
This matter comes before the Board on its own motion. There are three respondents in
this case: the original respondent Millenium Recycling and Solid Waste Consultants, Inc.
(Millenium), and two recently added individual respondents Sherri Clementi and Michael
Lorence. The Board notes that the individual respondents have failed to file answers, and that
the corporate respondent and one of the individual respondents (Clementi) has just been
discharged in bankruptcy.
The Board today
1. enters a default order against only the corporate respondent Millenium for
repeated failure to comply with Board and hearing officer orders to appear and
proceed with this case. 35 Ill. Adm. Code 103.220;
2. orders complainant to provide proof of service of the April 10, 2003 amended
complaint by November 1, 2003;
3. remedies any deficiency in service on Lorence of the Board’s May 15, 2003 order
and subsequent Board and hearing officer orders by allowing Lorence 60 days
from the date of this order, until December 1, 2003, to answer the complaint; and
4. directs complainant to file, on or before December 15, 2003, a motion or other
appropriate pleading suggesting what, if any, additional proceedings are
appropriate in this matter as to each respondent, including any suggestions
concerning appropriate remedy or penalty. Respondents may file any response
they may have on or before January 2, 2004.
2
THE COMPLAINT AND PARTIES
On December 12, 2001, the Office of the Attorney General, on behalf of the People of the
State of Illinois (People), filed a complaint against Millenium Recycling and Solid Waste
Consultants, Inc. (Millenium).
See
415 ILCS 5/31(c)(1) (2002); 35 Ill. Adm. Code 103.204. The
People allege that Millenium violated Sections 21(a), 21 (d)(1), 21(e), and 21(p)(1) of the
Environmental Protection Act (Act) (415 ILCS 5/21(a), (d)(1), (e), and (p)(1) (2002)). The
People further allege that Millenium violated these provisions by conducting a waste disposal
operation without a permit, and causing or allowing litter. The complaint concerns Millenium’s
facility at 31W620 Spaulding Road, Elgin, Cook County.
In an April 10, 2003 amended complaint, the People added two individuals as
respondents: Sherri Clementi and Michael Lorence. According to the amended complaint,
Sherri Clementi is the President and Registered Agent for Millenium Recycling & Solid Waste
Consultants, Inc. The People allege that she had decision-making authority and communicated
directly with the Illinois Environmental Protection Agency (Agency) regarding the
environmental issues alleged in the complaint. The amended complaint further alleges that
Michael Lorence is the Operations Manager responsible for the day-to-day operations of
Millenium and was present for an Agency open dump inspection. The Board accepted the
amended complaint May 15, 2003.
PROCEDURAL HISTORY
The nature of the issues before the Board today requires a thorough review of the record
and chronology of the various events in this case. This detailed chronology follows.
The Board accepted the People’s original complaint for hearing in December 2001. An
attorney entered an appearance for respondent in February 2002. Respondent, by its attorney,
participated in telephonic status conferences held by the hearing officer with the parties in
March, June, August, and November 2002. During that time, the parties reported that they were
attempting to reach a settlement, and respondent reported that it might file for bankruptcy.
On December 2, 2002, respondent’s attorney moved to withdraw his appearance, stating
that professional differences between attorney and client prevented continued representation.
The People objected, on the grounds that the withdrawal would unduly delay resolution of the
action. On January 23, 2003, the Board granted the attorney’s motion to withdraw. But, to avoid
any undue delay in the resolution of this case, the Board ordered the respondent to retain an
attorney who was directed to file an appearance on or before February 24, 2003, and to file
respondent’s answer to the complaint on or before March 24, 2003.
At a telephonic status conference held on March 4, 2003, Sherri Clementi, who is not a
licensed attorney, attempted to appear on behalf of respondent Millenium in her capacity as its
registered agent. Clementi represented that the respondent corporation is dissolved and bankrupt
and has no funds to retain an attorney. By order dated April 4, 2003, the hearing officer gave
Clementi until March 19, 2003, to respond to the January 23, 2003 Board order. She did not do
so.
3
On April 10, 2003, the People filed a motion to amend their complaint to include
additional respondents: Sheri Clementi and Michael Lorence. The People served the complaint
by certified mail on both individuals at the same address: 1133 Hillcrest Drive, Carol Stream,
Illinois 60188. Neither Millenium nor the individuals responded to the motion.
In his order of April 28, 2003, the hearing officer stated that a telephonic status
conference was held on April 23, 2003, but that Millenium or its representative did not appear.
Ms. Clementi telephoned to explain why she did not appear, and then stated that she would call
again. She did not do so. Since there had been no contact from Clementi in spite of the January
23, 2003 Board order, the hearing officer referred the matter to the Board for appropriate
sanctions.
The Board, by order of May 15, 2003, granted the People’s motion to amend the
complaint, and advised Sherri Clementi and Michael Lorence that their time to file any answer or
responsive motion to the complaint would begin to run from their respective receipt of the order.
The Board reserved ruling on the motion for sanctions against Millenium.
On May 16, 2003, the Board received a Notice of Creditor’s Meeting issued by U. S.
Bankruptcy Court (N.D. Ill.) regarding Millenium Recycling and Sherri Clementi.
On July 2, 2003, the hearing officer issued an order setting a telephonic status conference
on July 30, 2003. In his August 5, 2003 order following the status conference, the hearing
officer noted that respondents did not appear. The motion for sanctions against Millenium was
again forwarded to the Board for action.
In an order dated August 21, 2003, the Board noted Millenium Recycling and Solid
Waste Consultants’ failure to attend the telephonic status conference on July 30, 2003. The
Board ordered respondent Millenium to show cause why a default order in this case should not
be entered, citing 35 Ill. Adm. Code 103.220. The Board allowed Millenium until September 4,
2003, to respond to this order.
Finally, on September 17, 2003, the Board received a Discharge of Debtor Order dated
September 8, 2003 issued by the U. S. Bankruptcy Court (N.D. Ill.) regarding “Sherri Lynn
Clementi AKA: Millenium Recycling.”
In re
Sherri Lynn Clementi, No. 03-20318 (Bankr. N.D.
Ill. Sept. 8, 2003).
Neither Sherri Clementi nor Michael Lorence has filed an answer to the amended
complaint.
DISCUSSION
Effect of Discharge in Bankruptcy of Respondents Millenium and Clementi Presently
Unexplored in This Record
4
The record presently before the Board indicates only that a bankruptcy discharge order
has been entered against respondents Millenium and Clementi. None of the parties have
specifically addressed what, if any effect, this may have on this action. At this time, the Board
can only address issues of whether respondents can be found liable for the violations alleged in
the complaint.
Default Order Against Respondent Millenium
Section 103.220 of the Board’s procedural rules states:
Failure of a party to appear on the date set for hearing or failure to proceed as ordered by
the Board shall constitute a default. 35 Ill. Adm. Code 103.220.
On August 21, 2003, the Board ordered the corporate respondent Millenium to show
cause why a default order should not be entered against it, directing that any response be filed on
or before September 4, 2003. No response has been filed. As demonstrated in detail in the
foregoing procedural history, Millenium was first directed to retain an attorney by the Board’s
order of January 23, 2003 and subsequently by the hearing officer’s orders of April 4 and 28,
2003 and August 5, 2003. Respondent Millenium has not done so.
The Board finds that respondent has violated Section 21(a), 21(d)(1), 21(e), and 21(p)(1)
of the Act as alleged. Respondent violated these provisions by conducting a waste disposal
operation without a permit, and causing or allowing litter.
Status of Respondents Clementi and Lorence
Having found Millenium in default, the Board now turns to the status of the remaining
respondents. Clementi has clearly not defaulted in this case. As an individual, she has
represented herself by participating in status conferences. She has not, however, filed an answer
to the complaint.
See
35 Ill. Adm. Code 103.204 (d).
Respondent Lorence has not answered the complaint or participated in status conferences.
But, based on the record before the Board, the Board cannot determine whether Lorence was
adequately notified of his status as party respondent in this case. First, the Board’s records do
not contain the actual proof of service of the April 10, 2003 amended complaint on Lorence by
the People, although the certificate of service indicates that it was sent by certified mail. To
complete its records, the Board directs the People to file the “green card” proof of service of the
amended complaint on or before November 1, 2003.
Second, the Board’s order of May 15, 2003, accepting the amended complaint adding
Lorence as a respondent may not have been properly served. The Board notes that the service
address provided by the People for Lorence is the same as that for Clementi, so that Lorence may
in fact have received actual notice of his status as respondent in this action. But, since that
cannot be proven on this record, in fairness the Board will allow Lorence until December 1, 2003
(60 days from the date of this order), to answer the complaint or otherwise plead.
See
35 Ill.
Adm. Code 103.204 (d).
5
Additional Proceedings and Remedy Issues
Once the time for Lorence to answer has run, the People as prosecutor of the complaint
will be in a position to suggest what additional proceedings may be appropriate in this case as to
any and all respondents. The Board directs complainant to file, on or before December 15, 2003,
a motion or other appropriate pleading suggesting what, if any, additional proceedings are
appropriate in this matter as to each respondent, including any suggestions concerning
appropriate remedy or penalty. Respondents may file any response they may have on or before
January 2, 2004.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above order on October 2, 2003, by a vote of 7-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
