ILLINOIS POLLUTION CONTROL BOARD
    November 15, 2001
     
     
    ILA M. NEATHERY and DENISE C. FLECK,
     
    Complainants,
     
    v.
     
    GREG and KAREN BOUILLON d/b/a
    THIRSTY’S, and TERRILL L. and SARAH E.
    LOVING,
     
    Respondents.
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    PCB 02-14
         
    (Citizens Enforcement – Noise)
     
     
     
    ORDER OF THE BOARD (by T.E. Johnson):
    On July 30, 2001, Ila M. Neathery and Denise C. Fleck (complainants) filed a complaint
    in this matter. On October 1, 2001, an attorney for respondents Greg and Karen Bouillon d/b/a
    Thirsty’s (Bouillons) filed an entry of appearance, a motion for leave to file an answer
    instanter
    ,
    an answer with affirmative defenses, and a motion to dismiss. On October 4, 2001, the
    complainants filed a response to the motion to dismiss. This order grants the Bouillon’s motion
    for leave to file
    instanter
    , denies the Bouillon’s motion to dismiss, and directs this matter to
    hearing.
     
    MOTION FOR LEAVE TO FILE ANSWER, AFFIRMATIVE DEFENSE,
    AND MOTION TO DISMISS
    INSTANTER
     
     
    On August 9, 2001, the Bouillons filed a letter addressing the complaint. On
    September 20, 2001, the Board issued an order regarding the letter both as an answer to the
    complaint and a motion to dismiss the complaint as frivolous. On that date, the Board denied the
    motion to dismiss, and accepted an August 9, 2001 letter as an answer denying the material
    allegations of the complaint.
     
    On October 1, 2001, an attorney for the Bouillons entered an appearance, and filed a
    motion for leave to file an answer
    instanter
    , accompanied by an answer to the complaint,
    affirmative defenses, and a motion to dismiss. As noted, the Bouillon’s August 9, 2001 letter
    was previously accepted as an answer. The Bouillons make no reference to this answer in their
    motion for leave to file. The complainants did not object to the motion for leave to file.
    Accordingly, the motion is granted. The answer, affirmative defenses, and motion to dismiss are
    accepted. The answer will supplant the Bouillons’ previously filed answer.
     
     
     
     
    2
    MOTION TO DISMISS
     
    In their motion, the Bouillons assert that the complainants have not filed with the Board
    or served the respondents with a notice as required by 35 Ill. Adm. Code 103.204(a), but have
    instead filed only a cover letter and a complaint with the Board. In addition, the Bouillons argue
    that neither the cover letter nor the complaint contain the statement required by 35 Ill. Adm.
    Code 103.204(f). The Bouillons argue that complainants’ failure to comply with the
    requirements of 35 Ill. Adm. Code 103.204 mandate that the complaint be dismissed.
     
    The complainants reply that the complaint was properly filed with the “Information for
    Respondent Receiving Complaint” notification attached, and that this fact is confirmed in the
    Bouillons’ August 9, 2001 letter. The complainants attach a copy of a return receipt signed on
    July 27, 2001 by Greg Bouillon. The complainants request that the motion to dismiss be denied.
     
    Section 103.204 of the Board’s rules provides in part:
     
    a) An enforcement proceeding will be commenced by the service of a notice
    and complaint by registered certified mail, messenger service, or personal
    service upon all respondents and the filing of 1 original and 9 copies of the
    notice and complaint with the Clerk.
    * * *
    f) Any party serving a complaint upon another party must include the
    following language in the notice: “failure to file an answer to the
    complaint within 60 days may have severe consequences. Failure to
    answer will mean that all allegations in the complaint will be taken as if
    admitted for purposes of this proceeding. If you have any questions about
    this procedure, you should contact the hearing officer assigned to the
    proceeding, the Clerk’s Office or an attorney.” 35 Ill. Adm. Code
    103.204(a),(f).
     
    The motion to dismiss is denied. The complaint was properly filed with the Board and
    served by certified mail. The cover letter and the attached notice entitled “Information for
    Respondent Receiving Complaint” are sufficient to comply with the requirements of Section
    103.204(a). Although the requirements of 103.204(f) were not followed, the Bouillons have, to
    date, timely filed two answers to the complaint. Therefore, any error resulting from the
    complainants’ failure is harmless, and the motion to dismiss is denied.
     
    CONCLUSION
     
    The Bouillons’ answer and affirmative defenses are accepted, but their motion to dismiss
    is denied. A hearing is currently scheduled for December 4, 2001. The Board directs the
    hearing officer to proceed expeditiously to hearing.
     
     
    3
    IT IS SO ORDERED.
     
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
    adopted the above order on November 15, 2001, by a vote of 7-0.
     
     
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board
     

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