ILLINOIS POLLUTION CONTROL BOARD
    January 19,
    1989
    LEFTON IRON AND METAL COMPANY,
    INC.,
    a Missouri Corporation,
    )
    arid LEFTON LAND AND DEVELOPMENT
    )
    COMPANY,
    INC.,
    a Missouri
    Corporation,
    Complainants,
    v.
    )
    PCB 87—191
    MOSS-AMERICAN CORPORATION,
    a Delaware Corporation,
    and
    KERR—McGEE CHEMICA~LCORPORATION,
    a Delaware Corporation,
    Respondents.
    ORDER OF THE BOARD
    (by J. Marlin):
    On December
    29,
    1988,
    Kerr McGee filed
    a counterclaim
    in
    this action.
    No motions or
    pleadings responsive
    to the
    counterclaim have been filed.
    The Board
    notes
    that, until cancelled by Hearing Officer
    Order entered January
    17,
    1989, hearing concerning Lefton~s
    complaint was scheduled
    to
    commence January 30,
    1989.
    The cancellation was premised upon
    a
    January
    5,
    1989 letter
    from counsel
    for Lefton which, among
    other
    things,
    noted
    uncertainty about
    the validity of
    a counterclaim
    in
    a Board
    proceeding.
    The Board believes that
    an early ruling could
    expedite the progress of this litigaton.
    It
    would appear that Kerr McGee’s asserted claim
    is
    in the
    nature of
    a complaint pursuant
    to Section
    31 of the Act.
    It
    would further appear that
    the Board
    is required
    first
    to
    determine whether
    the “complaint”
    is duplicitious
    or
    frivolous
    (Section 31(b)), and
    then whether
    the “complaint” should proceed
    as
    a counterclaim
    as filed,
    or should instead be docketed and
    proceed
    as
    a separate action.
    Kerr—McGee
    is directed
    to address
    these
    issues by way of brief
    or other appropriate
    filing on or
    before February
    6,
    and Lefton to file any response on or before
    February 17,
    1989
    so
    that the Board can address
    this matter
    at
    its February 23 meeting.
    IT IS SO ORDERED.
    95—291
    —2—
    I, Dorothy M. Gum,
    Clerk of the Illinois Pollution Control
    Board,
    hereby certU-~that the above Order was adopted on
    the ~/~-~?‘day of
    ~
    ,
    1989,
    by a vote of
    -7-°
    p22.
    ~
    Dorothy M. G~n, Clerk
    Illinois Pollution Control
    Board
    95—292

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