R~CE~VED
BEFORE THE
CLERK’S
OFFICE
ILLINOIS POLLUTION CONTROL
BOARD
JUL
172003
Mr. Martin B.
& Kathy L. Geber
)
STATE OF IWNOIS
)
Pollution
Control Board
Complainants,
)
)
v.
)
PCB 03-96
)
Carri Scharf Trucking and Materials,
)
Carri Scharf Materials Company, and
)
East Side Materials, L.L.C.
)
)
Respondents.
)
EAST SIDE MATERIALS L.L.C.
OBJECTION TO HEARING OFFICERS ORDER
OR IN THE ALTERNATIVE
MOTION TO DISMISS
NOW
COMES
the East
Side Materials,
L.L.C. by
and through its
attorney,
Clayton W.
Moushon and
in support ofits Object ion to Hearing Officers Order or in the Alternative, Motion
to
Dismiss, states as follows:
A.
THE AMENDED COMPLAINT FAILED
TO
ADD EAST
SIDE AS A RESPONDENT.
1.
On
May 15, 2003,
this Board issued
an order allowing the Complainants 30 days to file an
amended complaint addingEast Side Materials L.L.C.
,
hereinafterreferredto as“East Side”,
as a respondent in the
above captioned case;
2.
On June 11, 2003, the Complainants filed an Amended Complaint;
3.
On June
25,
2003, the HearingOfficer issued a “HEARING OFFICERS ORDER” in which
the Hearing Officer states that “On June 11, 2003, complainant filed an amended complaint
to add CSM and East Side.”
4.
Said Hearing Officers Order further order the caption ofthe caseto be changed to add “East
Side Materials, L.L.C.” as a respondent.
5.
East Side objects to the Hearing Officers conclusion that the Amended Complaint properly
added East Side as a respondent.
6.
The Amended Complaint failed to add East Side as a respondent.
The Amended Complaint
does not identif~i
East Side
as a respondent anywhere in the Amended Complaint.
Most
notably, the caption in the Amended Complaint does not name East Side.
The Amended
Complaint, as filed, was captioned as follows:
Mr. Martin
E.
& Kathy L.
Geber
)
)
Complainants,
)
)
V.
)
PCB 03-96
)
Clayton W. Moushon
)
12025
N. Knoxville
)
Dunlap,
Illinois 61525
)
)
)
CarriScharf Trucking
and
Materials, Co.
)
P.o. Box 305
)
Bloomington, Illinois 61702-0305
)
Respondents.
7.
Furthermore, the only reference to East
Side is in Paragraph
1
ofthe Amended Complaint
wherein the Complainants allege “The property emitting
the noise is
owned by East Side
Materials, L.L.C.” This cursory reference is not sufficient to name East Side as a respondent
in the Amended Complaint.
The Amended Complaint also states in Paragraph
1
that ‘We
allege the respondents.
.
.“.
The only “respondents” identified in the Amended Complaint
are “Carrie Scharf Trucking and Materials, Co.” and “Clayton W.
Moushon”.
8.
Pursuant to this Boards Orderdated May 15,2003, Clayton W. Moushon was dismissed from
these proceedings, with prejudice. Consequently, the Complainants have failed to amend the
complaint to add East Side withinthe statedtime linesset forthin this Board’s May
15,
2003
Order.
B.
THE
AMENDED COMPLAINT FAILS
TO STATE A CAUSE OF ACTION AGAINST EAST
SIDE
In the alternative, should this Board conclude that the Amended Complaint is sufficient to
add East Side as a respondent, East Side
would hereby move to dismiss the Amended Complaint
againsteast Side forfailure to state sufficient facts to state a cause ofaction against-East Side-for the
following reasons:
9.
The Amended
Complaint only
makes
one
reference to
East
Side.
As
set
forth
above,
Paragraph
1
alleges
that
East
Side
is the
owner of the property.
There are no
other allegations
against East Side.
10.
Absentadditional allegations, ownership ofproperty is insufficient to state a cause ofaction
against East Side.
As noted in this Board’s Order ofMay
15,
2003, the property in question
is leased exclusively to Carrie Scharf Materials Company.
The Amended Complaint fails
to allege:
1.
That East Side owns or operates any ofthe equipment on the property;
2.
That East Side owners or operates any of the trucks entering or exiting the
mining operations;
3.
That East Side has any control over the equipment and or trucks entering or
leaving the property;
4.
Or that East Side
has taken or failed to take any action within its control to
limit or otherwise control the noise allegedlybeing generated by the mining
operations;
-
11.
As this Board noted in its May
15,
2003, Order:
“A complaint therefore “must show that the alleged polluter has the
capability ofcontrol over the polluter orthat the allegedpolluter was
in control of the premises where the pollution occurred.”
12.
The Amended Complaint fails to allege any factsthat East Side hasthe “capability ofcontrol
over the polluter” or that East Side
is the source ofthe pollution.
As such, the Amended
Complaint fails to set forth facts giving rise to a cause of action against East Side.
WHEREFORE,
the East Side Materials requests the following relief:
A.
Thatthe Board issue an order findingthat the Complainant failed to properly add East
Side
as a respondent in the above captioned case;
B.
That the complainants
failure
to properly add East
Side
is
a jurisdictional
issue
and the
complainant’s are barred from further attempts to amend the complaint to add East Side;
C.
In thealternative, if the Board finds that the Amended Complaint did properly add EastSide
as
a
respondent,
East Side
requests
that
the
Amended
Complaint
be
dismissed,
with
prejudice, as it pertains to East Side Materials, L.L.C.
a
id
aterialsL.L.C.
~‘
By:~C1aytonW. Moushon
Its kttorney
Clayton W.
Moushon, Esq
12025
N.
State Route 40, Suite
104
Dunlap, Illinois,
61525
Off: (309) 243-1005
Fax:
(309) 243-5098
Illinois ARDC #6 192933
PROOF
OF SERVICE
Underthepenalties as providedby law pursuant to
735
ILCS
5/1-109
ofthe Illinois Code of
Civil Procedure, the undersigned certifies that the foregoing
MOTION TO
DISMISS was served
upon
all parties to
the above cause ~
attorney(s) ofrecord herein at the respective address(es)
disclosed on the pleadings on the
/f’~
day ofJuly; 2003.
TO:
Carol Sudman
Hearing Officer
Illinois
Pollution Control Board
600
5.
Second Street, Suite 402
Springfield,
IL 62704
Martin E.
and Kathy I.
Geber
Ms.
Dorothy Gunn
116
Donald Court
Clerk of the Board
East Peoria, IL 61611
100W.
Randolph St.,
Suite 11-500
Chicago, Illinois
606012
BY:
x
II
U.S. Mail
Fax
Hand Delivered
Overnight Courier
Certified Mail
Other
~
Clayton W. Moushon, Esq
12025 N.
State Route
40, Suite
104
Dunlap, Illinois,
61525
Off: (309) 243-1005
Fax:
(309) 243-5098
Illinois ARDC #6192933
BEFORE THE
ILLINOIS POLLUTION
CONTROL BOARD
CLERKS
(‘~“
Mr. Martin E. & Kathy L.
Geber
)
)
JUL
Complainants,
)
~ThTE
oi
11~U~utSd
pollution Control Boa
v.
)
PCB 03-96
)
Carri Scharf Trucking and Materials,
)
Carrie Scharf Materials Company, and
)
East Side Materials, L.L.C.
)
)
Respondents.
)
-
ANSWER
TO
AMENDED COMPLAINT
BY
CARRI SCHARF MATERIALS COMPANY
NOW COMES
the Carri Scharf Materials Company, by and through its attorney, Clayton
W. Moushon and for its Answer to the Amended Complaint states as follows:
1.
Carrie Scharf Materials Company, hereinafter referred to as CSM, ADMITS that itoperates
a property owned by East
Side
Materials, L.L.C., but DENIES the remaining statements
and/or allegations set forth in Paragraph
1
of the Amended Complaint;
2.
Paragraph 2 ofthe Amended Complaint does not make any allegations but only alleges that
the Complainant has been documenting
noises.
To the extent Paragraph 2 ofthe Amended
Complaint makes any allegations, CSM denies such allegations;
3.
Paragraph 3 ofthe Amended Complaint does not make any allegations but only alleges that
the Complainant home
vibrates.
To
the extent Paragraph
3
of the Amended
Complaint
makes any allegations, CSM denies such allegations;
4.
Paragraph 4ofthe Amended Complaint does not make any allegations but only states the
Complainant opinion of howthe Complainants
feel the “operation” should be managed.
To
the extent that
Paragraph 4 of the Amended Complaint makes any allegations, CSM
denies such allegations.
~
C
Materials Company
By:
layton W. Moushon, Attorney
PROOF OF SERVICE
Under thepenalties as provided by law pursuant to
735
ILCS
5/1-109
ofthe Illinois Code of
Civil
Procedure,
the
undersigned
certifies
that
the
foregoing
ANSWER
TO
AMENDED
COMPLAINT
was served upon all parties to the above cause~tl,,~ttorney(s)
ofrecordherein at
the respective address(es) disclosed on the pleadings on the
_______
~57of
July, 2003.
TO:
Carol Sudman
Hearing Officer
Illinois Pollution Control Board
600
5.
Second Street, Suite 402
-
Springfield,
IL 62704
Martin E.
and Kathy I.
Geber
Ms. Dorothy Gunn
116 Donald Court
Clerk ofthe Board
East Peoria, IL
61611
100 W. Randolph
St., Suite 11-500
Chicago, Illinois 606012
BY:
x
U.S. Mail
Fax
Hand Delivered
Overnight Courier
Certified Mail
J
Other
~
Clayton W. Moushon, Esq
12025 N.
State Route 40, Suite 104
Dunlap, Illinois,
61525
Off: (309) 243-1005
Fax: (309) 243-5098
Illinois ARDC #6 192933
BEFORE
THE
ILLINOIS POLLUTION CONTROL BOARD
v.
)
)
I~ECERVED
CLERK’S OFFICE
JUL
172003
STATE OF IWNOIS
Mr. Martin E.
& Kathy L.
Geber
)
POllution
Con trol Board
Complainants,
)
)
)
PCB 03-96
)
Carri Scharf Trucking and Materials,
Carrie Scharf Materials Company, and
East Side Materials, L.L.C.
)
)
Respondents.
)
-
ENTRY OF APPEARANCE
Now comes the undersigned, Clayton W. Moushon, and here hereby enters his appearance
on behalfof Carri ScharfTrucking and Materials and Carrie ScharfMaterials Company, and further
states as follows:
1.
The undersigned is an attorney in good standing,
dully licensed to practice law
in
the
State ofIllinois, in good
standing;
2.
The undersigned is registered
with the Illinois Bar Association, ARDC #6 192933;
3.
The undersigned hereby enters his
appearance on behalfof Carri Scharf Trucking and
Materials and Carrie Scharf Materials Company.
Clayton W. Moushon,
Esq
12025 N.
State Route 40, Suite
104
Dunlap, Illinois,
61525
Off: (309) 243-1005
Fax:
(309) 243-5098
Materials L.L.C.
W.
Moushon
Illinois ARDC
#6 192933
PROOF OF SERVICE
Under the penalties as providedby law pursuant to
735
ILCS
5/1-109
ofthe Illinois Code of
Civil Procedure, the undersigned certifies
that the foregoing
ENTRY
OF
APPEARANCE
was
served upon
all
parties to
the
above
cause
or t)ie~torney(s)of record herein
at the respective
address(es) disclosed on the pleadings on the
/5’
‘~
day of July, 2003.
TO:
Carol Sudman
Hearing Officer
Illinois
Pollution Control Board
600
S. Second Street, Suite 402
Springfield,
IL 62704
Martin E~and Kathy I.
Geber
Ms. Dorothy Gunn
116 Donald Court
Clerk ofthe Board
East Peoria, IL
61611
100 W. Randolph St.,
Suite 11-500
Chicago, Illinois 606012
BY:
x
U.S. Mail
Fax
Hand Delivered
Overnight Courier
Certified Mail
~
Other
Cl
yt
.
Moushon
,
Esq.
Clayton W.
Moushon, Esq
12025 N.
State Route 40,
Suite
104
Dunlap, Illinois,
61525
Off: (309) 243-1005
Fax: (309) 243-5098
Illinois ARDC
#6 192933
RECEIVED
CLERK’S
OFFTCE
BEFORE THE
JUL
1
7
2003
ILLINOIS
POLLUTION
CONTROL
BOARD
STATE OF ILLINOIS
Mr. Martin E: &
Kathy L. Geber
)
Pollution
Control
Board
)
Complainants,
)
)
v.
)
PCB 03-96
)
Carri Scharf Trucking and Materials,
)
Carrie Scharf Materials Company, and
)
-
East Side Materials, L.L.C.
)
)
Respondents.
)
ENTRY OF APPEARANCE
Now comes the undersigned, Clayton W. Moushon, and here hereby enters his appearance
on behalfof East Side Materials, L.L.C., and further states as follows:
1.
The undersigned is an attorney in good standing,
dully licensed to practice law in
the
State of Illinois, in good
standing;
2.
The undersigned is registered with the Illinois Bar Association, ARDC #6 192933;
3.
The undersigned hereby enters
his appearance on behalfofEast Side Materials, L.L.C.
R~/~bm7j~
E
SM~Materials
L.L.C.
By: (~layton
W.
Moushon
Its Attorney
Clayton W. Moushon, Esq
12025 N.
State Route 40,
Suite
104
Dunlap,
Illinois,
61525
Off: (309) 243-1005
Fax:
(309) 243-5098
Illinois ARDC
#6 192933
PROOF
OF SERVICE
Under the penalties asprovided by law pursuant to 735 ILCS
5/1-109
ofthe Illinois Code of
Civil
Procedure, the undersigned certifies that the foregoing
ENTRY
OF
APPEARANCE was
served
upon all
parties
to
the above
cause
or the
attorney(s) of record herein at the respective
address(es) disclosed on the pleadings on the
(g
day of July, 2003.
TO:
Carol Sudman
Hearing Officer
Illinois Pollution Control Board
600
S. Second Street, Suite 402
Springfield, IL
62704
Martin E. and Kathy I.
Geber
116 Donald Court
East Peoria, IL 61611
Ms. Dorothy Gunn
Clerk ofthe Board
100 W. Randolph
St., Suite 11-500
Chicago, Illinois
606012
x
U.S. Mail
Overnight Courier
Fax
Certified Mail
Hand Delivered
Other
Clayton W. Moushon, Esq
12025 N.
State Route 40,
Suite 104
Dunlap, Illinois,
61525
Off: (309) 243-1005
Fax:
(309) 243-5098
BY:
dayt
~V.
Moushon
,
Esq.
Illinois ARDC #6192933