ILLINOIS POLLUTION CONTROL BOARD
    October
    5,
    1995
    PEOPLE
    OF
    THE
    STATE
    OF
    ILLINOIS,
    )
    Complainant,
    v.
    )
    FCB 95—163
    (Enforcement-Air, Water &
    RCPA)
    CLARK
    REFINING & MARKETING,
    INC.
    Respondent.
    ORDER OF THE BOARD
    (by E.
    Dunham):
    This matter comes before the Board on a “Motion to
    Reconsider and Vacate” filed on September 13,
    1995 by
    complainant.
    Complainant requests that the Board reconsider and
    vacate its September
    7,
    1995 order granting in part Clark
    Refining & Marketing, Inc’s
    (Clark’s) motion to strike and
    dismiss portions of the complaint.
    Complainant requeste that the
    Board deny respondent’s motion as untimely or in the alternative
    to allow complainant
    14 days from the entry of this order to
    respond to the motion to strike.
    Clark filed its response to the
    motion to reconsider and vacate on September 19,
    1995.
    Complainant maintains that it did not receive
    a copy of
    Clark’s motion to strike or dismiss prior to the entry of the
    Board’s order.
    Without a copy of the motion the complainant
    cannot specify all the objections it would have made in response
    to the motion.
    However, the complainant contends that Clark’s
    motion to strike or dismiss was not filed within 14 days of the
    filing of the complaint as required by 35 Iii. Adm. Code
    103. 140(a).
    Complainant argues that since the motion was
    untimely it must be denied.
    Complainant states that it would
    likely prevail on aspects of Clark’s motion if given an
    opportunity to respond to the motion.
    In addition,
    complainant
    notes
    that
    it
    could rectify the alleged 31(d)
    notice deficiencies
    by sending out additional notices and then amending the complaint
    but believes that this would be an inappropriate expenditure of
    complainant’s and respondent’s resources.
    Clark states that an attorney’s certificate of service was
    attached to its motion to strike showing service by first class
    mail on the complainant.
    Clark further maintains that the
    complainant should have been aware of the pending motion when it
    appeared on the Board’s agendas for the August 24 and September
    7,
    1995
    Board
    meetings.
    Clark
    coiitends
    that
    the filing
    of
    its
    motion to strike was
    not
    untimely
    but
    was
    properly
    filed
    in
    accordance with
    35 Ill.
    Adin.
    Code 101.243.
    Clark disputes
    complainant’s claim that correction of the alleged deficiencies
    through the filing of new notices would be
    a waste of resources.
    In
    fact,
    Clark maintains that proper notice and the opportunity
    to meet with the Agency could possibly avert future litigation.
    Clark further maintains that complainant’s request for an
    additional 14 days from the date of this order to respond to the
    motion to strike is inconsistent with the Board’s procedural
    rules and would result in unreasonable delay of the proceedings.
    The Board denies complainant’s motion to vacate its order of
    September
    7,
    1995 order since Clark’s motion was timely filed.
    However, the Board will allow the complainant additional time to
    respond to Clark’s motion
    to dismiss
    or strike based
    on
    complainant’s assertion that it did not receive a copy of the
    motion and was therefore unable to respond to the motion.
    While
    Clark contends that complainant could have learned of the pending
    motion through the Board’s agenda,
    such notice cannot replace
    receipt of the motion.
    Complainant would be unable to respond to
    Clark’s motion to strike and dismiss if it did not receive the
    motion.
    The Board finds complainant’s request for an additional 14
    days from the date
    of
    this order to respond unreasonab1e~.The
    Board’s procedural rules allow only
    7 days for the filing of
    response to a motion.
    (35 Ill.
    Adm. Code 103.140.)
    Upon receipt
    of the Board’s order, complainant could have received a copy of
    the motion either from the Board or the respondent the same day
    via fax or within a few days through the postal system.
    In
    addition, the Board agrees with respondent that the issues were
    clearly presented in the Board’s order and are not complex
    issues.
    The Board will allow complainant until October 12, 1995 to
    file its response to Clark’s motion to strike and dismiss.
    After
    reviewing complainant’s response, the Board will determine if it
    is necessary to modify its September 7,
    1995 order.
    IT IS SO ORDERED.
    I, Dorothy N.
    Gunn,
    Cleric or
    tile Illinois Pollution Control
    Board, hereby certify that ~,heabove order was adopted on the
    ___________day
    of
    ~
    ,
    1995,
    by a vote of
    7-a.
    Dorothy M./~unn,Clerk
    Illinois
    ~,p5llution
    Control
    Board

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