ILLINOIS POLLUTION CONTROL BOARD
    July 8, 1998
    ROY K. JOHNSON,
    Complainant,
    v.
    ADM-DEMETER, HOOPESTON
    DIVISION,
    Respondent.
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    PCB 98-31
    (Enforcement - Air - Noise - Citizens)
    ORDER OF THE BOARD (by K.M. Hennessey):
    In this case, complainant Roy K. Johnson (Johnson) alleges that respondent
    ADM-Demeter, Hoopeston Division (ADM), which owns and operates a grain elevator
    in Hoopeston, Illinois, has violated the Illinois Environmental Protection Act, 415
    ILCS 5/1
    et seq
    . (1996) (Act). Specifically, Johnson alleges that ADM has created air
    and noise pollution in connection with its grain elevator operations.
    On June 2, 1998, ADM filed a motion to dismiss the complaint, or in the
    alternative, to strike portions of the complaint. On June 18, 1998, Johnson filed a
    memorandum opposing the motion. In this order, the Board denies the motion because
    it is untimely and because ADM has not shown that it will suffer material prejudice if
    the motion is denied as untimely.
    BACKGROUND
    Complainant Roy K. Johnson (Johnson) lives at 715 N. Market Street in
    Hoopeston, Illinois, and has lived there for over 35 years. Complaint (Comp.) at 2, 8. On
    August 21, 1997, Johnson filed a complaint
    1
    alleging that in 1986, ADM began an open
    grain and elevator storage operation on North Market Street in Hoopeston, a few hundred
    yards from his home. Comp. at 4, 8. Johnson alleges that the street leading to the grain
    elevator is approximately 40 feet from his home, and that railroad tracks that the grain
    elevator uses run a few hundred feet behind his house. Comp. at 4.
    Johnson alleges that the grain elevator, and accompanying train and truck traffic
    and rail car switching engine, have created air pollution in violation of Sections 8, 9, and
    10 of the Environmental Protection Act (Act), 415 ILCS 5/8, 9, 10 (1996). Comp. at 3.
    He also alleges that the grain elevator operations have created noise pollution in violation
    1
    Johnson originally named the City of Hoopeston as an additional respondent. The
    Board dismissed the City of Hoopeston by order dated October 2, 1997.
    2
    of Sections 23, 24, 25, and 27 of the Act, 415 ILCS 5/23, 24, 25, 27 (1996), and 35 Ill.
    Adm. Code 900.12 of the Board’s regulations. Comp. at 3.
    ADM filed a motion (Mtn.) on June 2, 1998, in which it asks the Board to
    dismiss the complaint for failure to state a claim upon which relief can be granted, or in
    the alternative, to strike all portions of the complaint referring to noise or air pollution
    from truck and train traffic and the rail car switching engine. Mtn. at 1. Johnson filed
    a memorandum in opposition to the motion (Resp.) on June 18, 1998. According to
    the certificate of service, Johnson mailed the memorandum in opposition on June 16,
    1998. On June 26, 1998, ADM filed a motion for leave to file a reply to Johnson’s
    memorandum.
    DISCUSSION
    As an initial matter, ADM concedes that the motion was not filed within 14
    days of the filing of the complaint, as the Board’s rules require. Mtn. at 1; 35 Ill.
    Adm. Code 103.140(a). However, ADM argues that the Board allows motions to
    dismiss or strike to be filed after 14 days if material prejudice will result otherwise.
    Mtn. at 1-2.
    In this case, ADM argues that material prejudice will result if ADM is not
    allowed to file this motion because “it will be forced to incur the expense of preparing
    to defend itself at hearing against claims that are not the legal responsibility of ADM.”
    Mtn. at 2. ADM states that it did not bring the motion immediately because Johnson
    had not retained an attorney to file the initial complaint and latitude is typically
    afforded to such litigants. Mtn. at 2. ADM states that now that Johnson has retained
    counsel, and ADM has conducted some limited discovery, ADM better understands the
    complaint. Mtn. at 2. ADM claims that this limited discovery shows that “the
    overwhelming majority of the Complaint is not related to activities over which ADM
    has control.” Mtn. at 2. Finally, ADM notes that the Board allowed the late filing of
    a motion to dismiss in People v. Geon (October 2, 1997), PCB 97-62, and should do so
    here as well.
    In Geon, respondent filed a motion to dismiss more than 14 days after an
    amended complaint was filed but before filing any other document regarding the
    amended complaint. The respondent in Geon argued that the complainant’s failure to
    comply with Section 31 of the Act deprived the Board of jurisdiction over the case.
    The Board found that “material prejudice would result if Geon were denied an
    opportunity to challenge the amended complaint on jurisdictional grounds . . . .”
    Geon, PCB 97-62, slip op. at 8.
    The Board does not find any material prejudice here. ADM’s motion does not
    address the Board’s power to hear this case, as did the motion in Geon. Furthermore,
    on this type of motion to dismiss or strike, the Board may consider only the well-
    pleaded allegations of the complaint, in the light most favorable to the non-movant.
    Conway v. Johnson (August 7, 1997) PCB 97-221, citing Uptown Federal Savings &
    3
    Loan Assoc. v. Kotsiopoulous, 105 Ill. App. 3d 444, 434 N.E.2d 476 (1st Dist. 1982);
    see also Davis v. Weiskopf, 108 Ill. App. 3d 505, 509, 439 N.E.2d 60, 63 (2d Dist.
    1982) (on a motion to dismiss, a court may not consider supporting affidavits). But
    ADM’s motion relies on facts set forth in an affidavit of Charles Smith (Smith), plant
    manager of the grain elevator. These facts are not alleged in the complaint and the
    Board could not consider them if it were to rule on the merits of the motion. The
    Board therefore finds that its denial of the motion as untimely will not materially
    prejudice ADM.
    The Board emphasizes, however, that it could consider Smith’s affidavit in
    support of a motion for summary judgment. This order does not preclude ADM from
    presenting Smith’s affidavit in support of a motion for summary judgment.
    Because the Board denies ADM’s motion, Johnson’s response is moot (and in
    any event, was untimely filed because it was not filed or mailed within seven days of
    Johnson’s receipt of ADM’s filing; see 35 Ill. Adm. Code 103.104(c) and 103.123(c)).
    The Board also denies ADM’s motion for leave to file a reply to Johnson’s
    memorandum.
    IT IS SO ORDERED.
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby
    certify that the above order was adopted on the 8th day of July 1998 by a vote of 5-0.
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

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