ILLINOIS POLLUTION CONTROL BOARD

November 3, 1994

PEOPLE OF THE STATE OF ILLINOIS,)

Complainant,

)

V.

)

PCB 94—127

(Enforcement)

JAMES LEE WATTS, individually

and d/b/a WATTS TRUCKING

SERVICE, INC., and ESG WATTS,

INC.,

Respondents.

ORDER OF THE BOARD (by G. T. Girard):

This matter is before the Board on several motions filed by

the parties. First, on September 26, 1994, the Board received a

motion for partial summary judgement and then on September 29,

1994, the Board received a motion to dismiss or in the

alternative motion for summary judgement both filed by the

respondents. On September 30, 1994, the Board received

complainant’s response to the first motion and on October 6,

1994, the Board received the complainant’s response to the second

motion. Finally, on October 14, 1994 the Board received a

request by complainant for leave to file superseding complaint.

The respondents argue in its motions that the complainant

failed to comply with the requirements of 31(d) of the Act and

therefore, the Board does not have jurisdiction to proceed with

this matter. (9/29 at 6.)’ Further, respondents maintain that

the respondents have acted “diligently” in this matter by raising

this issue “as soon as they obtained” discovery requests

“indicating that the requirements of Section 31(d) had not been

met”.

(Id.)

Respondents argue that failure to allow this motion

will prejudice the respondents. Respondents point to documents

received by the respondents as a part of discovery on September

26 to support their argument. (9/29 at 3; Res.Exh. 1—6.)

The “request for leave to file superseding complaint” states

that:

While the allegations of respondents have been

disputed, and the Board has been asked to deny the

motion to dismiss, the People seek to proceed with the

The motions will be cited as “9/26 at

“

and “9/29 at

“,

respectively; the responses will be cited at “9/30 at

_“

and

“10/6 at

_“;

respondents’ exhibits will be cited as “Res.Exh.

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attached complaint in lieu of the complaint previously

filed an amended. Therefore, a new ‘31(d) letter’ was

issued on September 30, 1994, and a meeting thereupon

conducted with respondents on October 11, 1994.

(Request at 1.)

The respondents has not filed a response to the request.

Therefore, pursuant 35 Ill. Adm. Code 101.241(b) respondents has

waived objection to the granting of the request.

The Board will construe the complainant’s request as a

motion to amend the complaint pursuant to 35 Ill. Adm. Code

103.210 and grant the motion. The remaining motions for summary

judgement and dismissal are denied as moot because any alleged

notice deficiencies have been cured by the complainant’s amended

filing.

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

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day of

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1994, by a vote of

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Dorothy H. G~hn, Clerk

Illinois PoZlution Control Board