ILLINOIS POLLUTION CONTROL BOARD

September

5,

1985

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

Complainant,

v.

)

PCB 85-38

UECKETT and INTERLAKE,

INC.,

Respondents.

ORDER OF THE BOARD

(by J.D. Dumelle):

This matter comes

before the Board upon an August

7,

1985,

motion to strike filed on behalf of the Illinois Environmental

Protection Agency

(Agency) and an August

21,

1985, response filed

on behalf of Interlake.

The Agency requests that certain

affirmative defenses contained in Interlake’s answer be stricken

since “Interlake is precluded from raising matters subsequently

in its answer which were considered and ruled upon in its Motion

to Dismiss

by virtue of the Illinois Code of Civil Procedure and

the common

law

doctrine of

‘law of the case.’”

The Board

had

issued an Order denying the motion to dismiss on May 16,

1985.

First, even assuming that the Agency has properly construed

and applied the Code of Civil Procedure, that is not binding on

the

Board.

Second, the Board’s May 16,

1985, Order was not

intended to finally dispose of those matters contained in the

motion to dismiss.

All the Board decided at that time was that

Respondents had failed to establish that dismissal was

appropriate as

a matter of law without hearing.

As the Agency

noted in its April

30,

1985, response to the motion to dismiss,

“the bare allegations of the Motion do not provide

a legal

basis

to sustain the Motion.”

The Board has left open the possibility

that when all of the facts are in the record one or more

of

the

Respondents’ contentions may be sustained.

Third, the Board

finds

no prejudice in allowing the affirmation defenses

to remain

in the answer.

Therefore,

the motion to strike is hereby denied.

IT IS SO ORDERED.

85-429

---

-2-

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control

Board, hereby certify that tJ~eabove Order was adopted on

the

..~1-

day of

~

,

1985 by vote

of

.

.

~h

Dorothy N. Gunn, Clerk

Illinois Pollution Control Board