ILLINOIS POLLUTION CONTROL BOARD

January

21,

1982

SOuRS

GRAflI COMPAW~,

Petitioner,

V.

)

PCB 79—210

ILLINOIS

ENVIRONMENTAL

PROTECTION

)

AGENCY,

Respondent.

ORDER OF

THE

BOARD

(by

I.

Goodman):

Petitioner,

Sours Grain Company, made an oral Motion to

Dismiss without prejudice this variance petition at the

Board’s

regular meeting

of January 21,

1982.

Pursuant to Procedural Rule

308(a), the Board instructed Petitioner to submit such motion

in

writing and to serve the proper parties.

Petitioner did

so

on the afternoon

of

January 21,

1982 and Respondent,

the Illinois

Environmental Protection Agency, filed an objection the same

day.

The Board considered Petitioner’s motion after receiving

the pleadings,

s:Lnce this matter was scheduled for hearing on

January 25,

1982,

or

before the Board’s next regularly scheduled

hearing.

Legal

counsel for both parties was present at the

Board’s meeting.

At

bhe January 12,

1982 prehearing conference

in

this matter,

the hearing officer had denied Petitioner’s oral Motion for

Continuance and ordered the hearing on the merits to go forward

as

scheduled.

Petitioner

filed a Motion for Continuance with the

Board on January 13,

1982, which the Respondent filed objections

to.

The Board construed Petitioner’s Motion as an interlocutory

appeal

of the hearing officer’s order pursuant to Procedural Rule

308(f).

At its January 21,

1982 meeting the Board voted to deny

Petitioner’s appeal,

Thereupon Petitioner’s Counsel

made the

oral Motion to Dismiss without prejudice.

Respondent!s counsel

immediately objected.

Three possible resolutions are posed by Petitioner’s Motion

to Dismiss.

The Board could deny the Motion to Dismiss.

This

would

be futile since

it

was Petitioner who originally brought

this variance proceeding before the Board.

The Board could dis-

miss without prejudice, which would allow Petitioner to reinstate

this matter subsequent to the already scheduled hearing dates;

which in effect would grant Petitioner the continuance previously

sought and denied by the hearing officer,

appealed and denied by

the Board.

Lastly, pursuant to Procedural

Rule 308(e), the Board

could dismiss this matter with prejudice,

if justice

so demands.

45—97

---

2

The Board

finds that by its Motion to Dismiss without

prejudice Petitioner abuses the Board’s procedures

in an effort

to circumvent the Board’s ruling on the Motion to Continue,

to

the possible prejudice of Respondent.

Therefore,

this matter

is dismissed with prejudice.

IT IS SO ORDERED.

I, Christan L.

Moffett,

Clerk of

the Illinois Pollution

Control Board, her by

certify that the above Order was adopted on

the

~/~‘

day of

_______________,

1982 by

a vote of

Christan

L. Mof~j~)Clerk

Illinois Pollution Control Board

45—98