ILLINOIS POLLUTION CONTROL BOARD
    July
    1,
    1993
    PEOPLE OF THE STATE OF ILLINOIS,
    )
    )
    Complainant,
    PCB 93—87
    v.
    )
    (Enforcement)
    )
    SOUTH HOLLAND METAL FINISHING CO.,
    )
    an Illinois Corporation,
    )
    Respondent.
    ORDER OF THE BOARD
    (by B.
    Forcade):
    This matter comes before the Board on several motions filed
    by the parties.
    On June
    18,
    1993,
    South Holland Metal Finishing
    Co.
    (South Holland)
    filed a “Motion to Dismiss”, “Motion for Bill
    of Particulars”,
    “Affirmative Defense” and “Request for
    Deposition Subpoena.”
    On June 25,
    1993,
    the complainant filed
    “Response to Motion to Dismiss”, “Response to Motion to File Bill
    of Particulars” and “Motion to Strike Affirmative Defense.”
    Motion to DisTniss
    South Holland argues that the complaint does not satisfy the
    requirements of 35
    Ill. Adm. Code 103.122(c) (2)
    in that the
    complaint is too vague and general to allow the preparation of a
    proper defense.
    South Holland contends that the allegations fail
    to state whether the emissions are real or actual or only
    threatened.
    South Holland also contends that the complaint does
    not provide any specifics of the nature of the alleged emissions.
    Complainant notes that the motion to dismiss was not filed
    within 14 days after receipt of the complaint as required by the
    Board’s rules but was filed 36 days after the receipt of the
    complaint.
    (35 Ill. Adm. Code 103.140(a).)
    The complainant also
    notes that the motion is directed to neither the Board nor the
    hearing officer.
    (35 Ill.
    Adin. Code 101.241.)
    Complainant
    contends that the motion to dismiss should be stricken because it
    is not timely and
    is not directed to the Board.
    In addition, the complainant argues that the complaint meets
    the procedural requirements.
    The complainant contends that the
    complaint alleges construction and operation of air emission
    equipment without the proper permits and therefore actual
    emissions are not
    a necessary element.
    Complainant argues that
    the complaint meets the required standards and that the
    allegations are not too vague or general.
    The Board denies the motion to dismiss.
    The Board finds the
    motion to be untimely.
    The motion to dismiss was not filed
    within
    14
    days of the receipt of the complaint as required by the
    2
    Boards procedural rules.
    In addition the Bcard finds that the
    complaint provides sufficient information to fulfill the notice
    requirements of a complaint.
    The complaint pr3vides adequate
    information to inform respondent of the nature of the complaint
    and for respondent to prepare a defense.
    Motion for Bill of Particulars
    South Holland notes that the complaint alleges that certain
    plating lines constructed and operated by South Holland “emit,
    or
    are capable of emitting, particulate matter.”
    Based on this
    allegation South Holland seeks a bill of particulars describing
    the nature and extent of the emissions.
    Complainant alleges that because the complaint is legally
    sufficient,
    as argued in its response to the motion to dismiss,
    a
    bill of particulars should not be required.
    The Board will not order complaint to file a bill of
    particulars.
    The Board does not find the information requested
    by the respondent to be relevant to the stated cause of action of
    constructing or operating an air emission source without a
    permit.
    Motion to Strike Affirmative Defense
    Complainant contends that respondent’s affirmative defense
    should be stricken because it was not timely filed.
    The Board’s
    procedural rules allow for the filing of an “answer within 30
    days of receipt of the complaint.”
    Complainant notes that
    respondent received the complaint on May 11,
    1993.
    The
    affirmative defense was filed on June 16,
    1993, more than 30 days
    after the receipt of the complaint.
    The complainant also argues
    that the defense presented by respondent is essentially a legal
    argument and is therefore not a proper affirmative defense.
    A hearing in this matter
    is presently scheduled for August
    3,
    1993.
    While the Board notes that the time to reply to the
    Agency’s June 25,
    1993 motion to strike has not yet expired, the
    Board will decide this motion in order to prevent undue delay.
    Section 103.122(d)
    allows the filing of an affirmative
    defense with the answer or supplemental answer prior to hearing:
    Respondent may file an answer within 30 days of receipt
    of the complaint.
    All material allegations of the
    complaint shall be taken as denied if not specifically
    admitted by answer, or
    if no answer is filed.
    Any
    facts ccnstituting an affirmative defense which would
    be likely to take the complainant by surprise must be
    plainly set forth prior to hearing
    in the answer or
    3
    supplemental answer filed pursuant to section
    103.210(b).
    Section 103.210(b)
    allows for supplemental pleadings as
    follows:
    At any time prior to commencement of hearing and prior
    to the close of hearing, the Hearing Officer may upon
    motion of a party permit a supplemental pleading
    setting forth continuing transactions or occurrences
    which have continued or occurred subsequent to the date
    of filing of the initial pleading or any amendment
    thereto, so long as no undue surprise results that
    cannot be remedied by a continuance.
    The Board finds that the affirmative defense was not filed
    within 30 days of the receipt of the complaint as required by the
    Board’s rules.
    However, the Board notes that supplemental
    pleadings are allowed so long as no undue surprise that cannot be
    remedied by a continuance would result.
    (City of Des Plaines v.
    Solid Waste Agency of Northern Cook County (January
    7,
    1993), PCB
    92-127.)
    Complainant does not argue that the affirmative defense
    created any undue surprise that cannot be remedied by a
    continuance.
    The affirmative defense was filed in advance of
    hearing and the hearing officer is authorized to continue the
    August
    3,
    1993 hearing if necessary.
    Further, the Board finds that the affirmative defense
    presented by respondent is proper.
    While the defense presents
    some legal arguments, these arguments are based on facts alleged
    by the respondent.
    Therefore,
    the Board denies the motion to strike the
    affirmative aefense.
    IT IS SO ORDERED.
    I,
    Dorothy N. Gunn,
    Clerk of the Illinois Pollution Control
    Board, hereby certify tha
    he
    bove order was adopted on the
    /.i2-1-
    day of
    ,
    1993,
    by a vote of
    7-?)
    .
    ~
    (~U.
    ~
    Dorothy
    M. G4n,
    Clerk
    Illinois Por~3/utionControl Board

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