ILLINOIS POLLUTION CONTROL BOARD
    January 5, 1989
    VILLAGE OF BROCTON,
    )
    Complainant,
    )
    v.
    )
    PCB 88-133
    ILLINOIS CEREAL MILLS,
    Respondent.
    ORDER OF THE BOARD (by J. Marlin):
    On December 12, 1988, the Village of Broctori (Brocton) filed a motion to
    voluntarily dismiss its Complaint in this matter. Illinois Cereal Mills (1CM)
    filed its res~onseto this motion on December 15, 1988. Brocton requested
    that its Complaint be dismissed without prejudice. Citing 35 Ill. Adm. Code
    103.140(e), 1CM counters that the matter should be dismissed without leave to
    reinstate. Specifically, 1CM claims that if Brocton may later file another
    complaint based upon alleged violations which took place prior to the filing
    of the Complaint in this matter, 1CM will be “prejudiced by being called upon
    to repeat the discovery process and again prepare to defend against the vague
    allegation of the complaint”.
    Section 103.140(e) provides:
    When ruling on a motion by complainant for voluntary
    dismissal of an action the Board shall, for reasons
    stated in its Order, dismiss the action without leave
    to reinstate if justice so demands. Among the factors
    to be considered in making such a determination are
    evidence and arguments concerning the action’s age and
    procedural history, and the prejudicial effects, if
    any, of dismissing the action with leave to
    rei nstate.
    Brocton’s Complaint was filed on August 23, 1988. No hearings have yet
    been held in this matter. 1CM seems to be concerned about having to defend
    itself against a vague complaint which could be filed in the future. 1CM
    further alleges that it sent written discovery requests to Broctort which were
    unanswered, and that it would be prejudiced if it had to “repeat the discovery
    process”. The Board does not believe that 1CM would be prejudiced by merely
    filing discovery documents a second time. Moreover, should there be another
    comlaint filed by Brocton, the answers which 1CM sought through the discovery
    proces may be clarified by the subsequent filing. As with any other
    complaint, a subsequent complaint filed by 3rocton would have to meet the
    requirements of Section 103.122(c). Those requirements are intended to give
    the respondent adequate notice of the alleged violations in order to
    reasonably allow for the preparation of a defense.
    95—37
    2
    The Board notes that no hearings have been held in this matter; were it
    otherwise, the Board would be reluctant to allow dismissal without prejudice,
    out of concern that a motion for dismissal might be used as a vehicle for
    delaying defeat upon consideration of the merits.
    In this instance, the Board is not convinced that justice demands a
    dismissal without leave to reinstate. The Board hereby grants Brocton’s
    motion. This matter is dismissed without prejudice.
    IT IS SO ORDERED.
    Section 41 of the Environmental Protection Act, Ill. Rev. Stat. 1985 ch.
    111 1/2 par. 1041, provides for appeal of final Orders of the Board within 35
    days. The Rules of the Supreme Court of Illinois establish filing
    requi rements.
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby
    certi y that the above Opinion and Order was ad~tedon the
    .5~Z
    day
    of
    ________________,
    1989, by a vote of __________________________
    Illinois Pollu~on Control Board
    95—3~3

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