ILLINOIS POLLUTION CONTROL BOARD

November 29, 1990

RONALD E. TEX and SUSAN D. TEX,

ComplaInants,

v.

)

PCB 90—182

(Enforcement)

S. SCOTT COGGESHALL and

)

COGGESHALL CONSTRUCTION COMPANY,

)

Respondents.

ORDER OF THE BOARD (by J. C. Marlin):

This matter is before the Board on a Motion to Dismiss by S.

Scott Coggeshall filed October 31, 1990. On November 28, 1990

the complainants Ronald E. Tex and Susan Tex filed a Motion to

Continue which asked, essentially, that the matter continue to

hearing.

S. Scott Coggeshall is not a party to this noise enforcement

proceeding. However, he has filed a motion to dismiss it on

grounds that the named party respondent Samuel Scott Coggeshall

is his deceased father. The motion is supported by affidavit.

The complainants’ response merely states that they served their

notices and complaint on Samuel Scott Coggeshall, as listed in

real estate tax records as owner of Coggeshall Construction

Company. However, our examination of their response and the

attached records shows that the tax rolls list Samuel Scott

Coggeshall, Jr. as owner. The difference appears to be

important. As S. Scott Coggeshall’s motion suggests, the former

is deceased; the latter appears to be his son. The Board cannot

determine whether S. Scott Coggeshall is Samuel Scott Coggeshall,

Jr. However, S. Scott Coggeshall does admit to being the owner

of the property. The Board therefore will dismiss the case as

against Samuel Scott Coggeshall and will allow the substitution

of S. Scott Coggeshall as the proper respondent.

S. Scott Coggeshall also asks the Board to dismiss the case

“as to all individual defendants” as no notice was served upon

them. The difference, again, appears to be the missing word

“Jr.” from the notice. The Board believes, however, that little

will be gained by dismissing the case due to this imperfection.

S. Scott Coggeshall does not dispute that a notice was not

received by him. In fact, a letter of July 22, 1990 from

complainants to him and advising him that the complainants were

consulting with the Illinois Environmental Protection Agency

116—313

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—2—

contains his correct name. Under these circumstances, we believe

the requirement was met.

S. Scott Coggeshall also requests that the Board dismiss

this case because the complaint fails to plead the act of any

individual owner which would give rise to liability. The

activity complained of is noise and dust pollution. The

complaint states that this pollution emanates from the operations

of Coggeshall Construction Company.

Respondent’s motion also asks the Board to dismiss this

matter because it is a “public nuisance” for which no cognizable

right of action exists for complainants. ~e believe, however,

that the Act is clear that complainants have a right to relief

should they prove their statutory claim.

S. Scott Coggeshall, however, admits that he is the sole

owner of the company. We are not convinced, that, under the

facts as shown, that S. Scott Coggeshall should be dismissed from

this case.

Finally, the complainants’ response to motion to dismiss

raises questions as to whether the allegations regarding dust

pollution have been properly raised. The Board construes the

filing as a request to amend the complaint to add an alleged

violation of Section 9(a). That request is granted.

The Board concludes that no matters have been raised which

call for the dismissal of this case and finds the complaint

neither duplicitous or frivolous. Therefore, the matter is

accepted for hearing.

IT IS SO ORDERED.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control

Board, hereby certif t at the above Order was adopted on

the ~

of

_________________,

1990, by a vote of 7—o.

~7~7

Dorothy M. 9~in,

~.

Clerk

7L~

Illinois P~’1utionControl Board

116—31L~