ILLINOIS POLLUTION CONTROL BOARD
    January 11,
    1995
    STROH OIL COMPANY,
    Petitioner,
    )
    v.
    )
    PCB 94—215
    (UST Fund)
    OFFICE OF THE STATE
    FIRE MARSHAL,
    )
    )
    Respondent.
    ORDER OF THE BOARD
    (by N.
    McFawn):
    This matter is before the Board on several filings.
    Petitioner Stroh Oil Company (Stroh)
    filed a motion to file
    instanter an amended petition and the proposed amended petition
    on December 21,
    1994.
    Respondent Office of the State Fire
    Marshal
    (OSFM)
    filed a response to the motion to file instanter
    on December 29,
    1994.
    Finally, on January
    9,
    1995,
    Stroh filed a
    motion for leave to file a reply and the proposed reply.
    The
    parties also filed a December 21,
    1994 agreed motion to cancel a
    hearing scheduled for December 29,
    1994, and the hearing was
    cancelled by order of the hearing officer.
    Because we find that
    Stroh has demonstrated that a reply is necessary to prevent
    material prejudice, we grant its motion for leave to file a
    reply.
    Additionally,
    for the reasons set forth below, we grant
    Stroh’s motion to file instanter its amended petition.
    In support of its motion to file instanter its amended
    petition, Stroh states
    that during discovery,
    it discovered two
    additional grounds for obtaining relief.
    Stroh states that it
    was not aware of these grounds for relief until the deposition of
    Keith Immke of the OSFM on December 14,
    1994.
    The OSFM asserts
    in response that the Board does not have authority to consider
    the first argument raised in the amended petition, and that the
    amended petition does not provide enough specificity for
    OSFM to
    make an intelligible response.
    We find that petitioner may properly amend its petition at
    this time to reflect information it obtained during discovery.
    “P3 leadings may be amended to conform with the proof,
    so long as
    no unfair surprise results which cannot be remedied by a
    continuance which could be granted consistent with the minimum
    timelines prescribed by Part
    107.”
    (35 Ill. Adm. Code
    107.246.)
    The arguments set forth by respondent OSFM concern the
    merits of the new grounds for relief raised by petitioner, not
    the appropriateness of allowing petitioner to file an amended
    petition.
    Since the hearing previously scheduled in this matter
    has been cancelled, there is no material prejudice to respondent
    which cannot be cured by a continuance of the hearing date.
    2
    We express no opinion on the merits of the two additional
    grounds for relief set forth by petitioner.
    The merits of
    petitioner’s additional grounds for relief can be addressed by
    the parties at hearing and in any post-hearing pleadings.
    IT IS SO ORDERED.
    I, Dorothy N. Gunn, Clerk
    of the Illinois Pollution Control
    Boar~,hereby cert
    that the above order was adopted on the
    //~
    day of
    _________________,
    1995,
    by a vote of
    ________
    Dorothy M4Gunn, Clerk
    Illinois Pàllution Control Board

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