ILLINOIS POLLUTION CONTROL BOARD

February 5, 2009

JERRY R. WEST II,

Complainant,

v.

NOKOMIS QUARRY COMPANY,

Respondent.

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PCB 09-45

(Citizens Enforcement - Air)

ORDER OF THE BOARD (by T.E. Johnson):

On January 5, 2009, Jerry R. West II (West) filed a complaint

pro se

against Nokomis

Quarry Company (Nokomis Quarry). The complaint concerns limestone particles allegedly

emitted from Nokomis Quarry’s site located at 23311 Taylorville Road in Nokomis,

Montgomery County. As discussed below, the Board declines to accept the complaint for

hearing at this time because the record does not demonstrate that West has properly served the

complaint on Nokomis Quarry.

The Board’s procedural rules require a complainant to serve the complaint on the

respondent personally, by registered or certified mail, or by messenger service. 35 Ill. Adm.

Code 101.304(c), (d), 103.204(a). “Proof of service” of the complaint must be filed with the

Board “upon completion of service.” 35 Ill. Adm. Code 101.304(b). The Board’s procedural

rules also require that the complaint be accompanied by an affidavit or certificate of service.

See

35 Ill. Adm. Code 101.304(d).

West’s complaint lacks any affidavit or certificate of service. On January 13, 2009, West

filed a certified mail receipt, documenting that a mailing was directed to “Samuels M. JS. Sly

LLP” at P.O. Box 1400, Decatur, Illinois 62525. The receipt is stamped January 8, 2009, United

States Postal Service, McMinnville, Tennessee. Even assuming that West’s complaint is the

mailing associated with this receipt, the receipt indicates that West did not serve the complaint

on Nokomis Quarry itself, and there is no evidence in the record that “Samuels M. JS. Sly LLP”

is authorized as an agent to accept service for Nokomis Quarry.

Additionally, the requisite proof that a complaint has been served by certified mail is the

certified mail return receipt, executed by the respondent or its authorized agent. 35 Ill. Adm.

Code 101.300(c);

see

Thigpen v. Morton Mobile Home Park, LLC, d/b/a Edgewood Terrace

Mobile Home Park, PCB 08-12, slip op. at 2 (Sept. 6, 2007) (requiring “proof that service has

been completed”); Trepanier v. Board of Trustees of the University of Illinois at Chicago

, PCB

97-50, slip op. at 4 (Nov. 21, 1996) (service of complaint by certified mail requires return receipt

signed by respondent or authorized agent). The required proof of service is lacking here.

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Under these circumstances, the Board directs West to file with the Board proper proof

that he has served the complaint on Nokomis Quarry or its authorized agent. West must file the

proof by March 5, 2009, or the Board may dismiss this proceeding. The Board reserves ruling

on whether the complaint is duplicative, frivolous, or otherwise deficient.

See

415 ILCS

5/31(d)(1) (2006); 35 Ill. Adm. Code 103.

IT IS SO ORDERED.

I, John Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that the

Board adopted the above order on February 5, 2009, by a vote of 5-0.

___________________________________

John Therriault, Assistant Clerk

Illinois Pollution Control Board