ILLINOIS POLLUTION CONTROL BOARD
    December 7, 2006
    DALE L. STANHIBEL,
    Complainant,
    v.
    TOM HALAT d/b/a TOM’S VEGETABLE
    MARKET,
    Respondent.
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    PCB 07-17
    (Citizens Enforcement – Air, Noise)
    ORDER OF THE BOARD (by A.S. Moore):
    On September 18, 2006, Dale L. Stanhibel filed a complaint (Comp.) against Tom Halat
    d/b/a Tom’s Vegetable Market.
    See
    415 ILCS 5/31(d) (2004); 35 Ill. Adm. Code 103.204.
    Stanhibel alleges that Halat violated Section 24 of the Environmental Protection Act (Act) (415
    ILCS 5/24 (2004)) and section 900.102 of the Board’s noise regulations (35 Ill. Adm. Code
    900.102). Stanhibel further alleges that Halat violated these provisions by firing propane
    cannons in the course of growing and selling vegetables. The complaint concerns Halat’s
    vegetable market facility at 10214 Algonquin Road, Huntley, McHenry County.
    Section 31(d) of the Environmental Protection Act (415 ILCS 5/31(d) (2004)) allows any
    person to file a complaint with the Board. Section 31(d) further provides that, “[u]nless the
    Board determines that such complaint is duplicative or frivolous, it shall schedule a hearing.”
    Id.
    ;
    see also
    35 Ill. Adm. Code 103.212(a). A complaint is duplicative if it is “identical or
    substantially similar to one brought before the Board or another forum.” 35 Ill. Adm. Code
    101.202. A complaint is frivolous if it requests “relief that the Board does not have the authority
    to grant” or “fails to state a cause of action upon which the Board can grant relief.”
    Id.
    Within
    30 days after being served with a complaint, a respondent may file a motion alleging that the
    complaint is duplicative or frivolous. 35 Ill. Adm. Code 103.212(b).
    In an order dated November 2, 2007, the Board directed Stanhibel to file proof of service
    of the complaint upon Halat by Monday, November 27, 2006. On November 8, 2006, Stanhibel
    timely filed the certified mail receipt showing service upon Halat on September 19, 2006.
    See
    35
    Ill. Adm. Code 101.300(b)(2).
    On December 1, 2006, Halat filed a motion to vacate any possible default, extend time to
    respond to the complaint, and for leave to file a motion to dismiss (Mot.). In his motion, Halat
    cites 35 Ill. Adm. Code 103.204(f), which provides that
    “[a]ny party serving a complaint upon another party must include the following
    language in the notice: ‘Failure to file an answer to this complaint within 60 days
    may have severe consequences. Failure to answer will mean that all allegations in
    2
    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 this proceeding, the Clerk’s Office or an attorney.”
    Halat states that Stanhibel failed to attach this notice as required by the Board’s procedural rules.
    Mot. at 1. Halat further states that, as a non-attorney, he “was unaware of the requirements to
    respond or otherwise plead to the Complaint.”
    Id
    . Reporting that he has now obtained counsel
    in this matter, Halat seeks from the Board leave to file a motion to dismiss on the basis that
    “there is an affirmative matter that negates the legal effect of the claim.” Mot. at 2, citing 735
    ILCS 5/2-619(a), 35 Ill. Adm. Code 101.500, 101.506.
    In reviewing Stanhibel’s complaint, the Board notes that Stanhibel failed to include the
    language regarding answering a complaint that is required by 35 Ill. Adm. Code 103.204(f).
    See
    Dale L. Stanhibel v. Tom Halat d/b/a Tom’s Vegetable Market, PCB 07-17 (Sept. 18, 2006).
    The Board grants Halat’s motion for leave to file a motion to dismiss. The Board directs Halat to
    file his motion to dismiss by Monday, January 8, 2007, which is the first business day after the
    30th day from the date of this order. Because service of the complaint did not fully comply with
    the Board’s procedural rules as described above, the Board will accept a motion to dismiss filed
    consistently with this order as a timely motion. The Board’s procedural rules provide that,
    within 14 days after service of the motion to dismiss, Stanhibel may file a response to the
    motion.
    See
    35 Ill. Adm. Code 101.500(d).
    The Board notes that a respondent’s timely motion to dismiss stays the 60-day period to
    file an answer. 35 Ill. Adm. Code 103.204(e). “The stay will begin when the motion is filed and
    end when the Board disposes of the motion.”
    Id
    . Because the deadline for filing an answer is
    stayed by operation of the Board’s procedural rules, the Board denies as unnecessary Halat’s
    motion to extend the time to respond to the complaint. Also, because the Board does not have
    before it a motion for default and does not address the issue of default in this order, Halat’s
    motion to vacate any possible default is denied as moot. Finally, the Board reserves ruling on
    whether the complaint is frivolous or duplicative and whether to accept the complaint for
    hearing.
    See
    35 Ill. Adm. Code 103.212(a).
    IT IS SO ORDERED.
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
    adopted the above order on December 7, 2006, by a vote of 4-0.
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

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