ILLINOIS POLLUTION CONTROL BOARD

November 21,

1991

THOMAS

AND

BARBARA

SNEED,

)

Complainant,

PCB 91—183

v.

)

(Enforcement)

)

FRANK

FARRAR

and the FIRST

)

BANK ANtS TRUST CO.,

)

)

Respondent.

ORDER OF THE BOARD

(by J.

C. Marlin):

This matter is before the Board on a complaint received by the

Board on October

3,

1991.

On October

31,

1991,

the Respondents

filed with the Board a Motion for Extension of Time to File Motions

to Dismiss, Motions to Dismiss filed on behalf of both respondents

and the Joint Answer and Affirmative Defenses of Respondents.

On

November 12,

1991,

the Board received a response to the Motions

filed by Complainants.

As a preliminary matter, the Board will grant the Motion for

Extension of Time to File Motions to Dismiss.

The Board notes that

although two separate Motions to Dismiss were filed,

the Motions

are interrelated.

With respect to Respondent,

Frank Farrar,

the

Motion to Dismiss argues that Mr. Farrar is not a proper party to

the complaint.

The Motion states that “no relief or remedy can

properly

be

entered

against

him

(Farrar

in

that

he

is

an

individual residing in Britton, South Dakota”.

(Farrar Motion p.

2).

Mr. Farrar is a director of the Bank but he does not “own the

premises upon which the air conditioning unit complained of

is

located”.

(Farrar Motion

p.

1).

With respect to the Motion to Dismiss filed for Respondent,

First Bank and Trust Company (the “Bank”), the Motion argues that

the enforcement action has not been properly commenced.

The Motion

states that the Bank has never been served with notice

of

the

complaint and that only the individual,

Frank Farrar, was served.

The

Motion

maintains

that

this

service

is

improper

under

the

Board’s procedural rules and the Illinois Code of Civil Procedure

(Ill. Rev.

Stat.

1989,

ch.

110, par. 2—204).

The Complainants responded to the Motions to Dismiss stating

that “the

Alexander County Clerks office furnished me with the

name of the owner of record at the First Bank and Trust Co.”.

In

addition,

the Complainants point to letters filed with the Board

by Mr. Farrar on Bank stationary.

Thus, the Complainants have made

a good faith effort to establish the proper

individual

on whom

service must be achieved.

12 7—217

---

2

Section 101.100 of the Board’s procedural rules specifically

states that the Code of Civil Procedure shall not expressly apply

to proceedings before the Board; however, parties may argue the

applicability absent a provision in the Board’s procedural rules.

35 Ill.

Adm. Code 101.100.

In this case,

Section 103.123 of the

Board’s procedural rules allows for service via certified mail on

the respondent.

Therefore,

Complainants appear to have properly

served Mr. Farrar and the Bank.

The, Board finds that there are several issues in controversy

in this case including the issue

of proper service.

The Board

believes that these issues should be addressed more fully by the

parties at a hearing on the merits of the case.

Therefore, at this

time,

the Board denies both Motions to Dismiss and accepts this

case for hearing.

This matter will be assigned to a hearing officer, who will

contact the parties to set a hearing date.

IT IS SO ORDERED.

I,

Dorothy M.

Gunn,

Clerk of the Illinois Pollution Control

Board,

do hereby ce tify that the above Order was adopted on the

~

/~

day of

____________,

1991, by a vote of

~

/~,

Dorothy

Illinois

Jution Control Board

127—218