ILLINOIS POLLUTION CONTROL BOARD
    September 17, 1992
    REICHHOLD
    CHEMICALS,
    INC.,
    Petitioner,
    )
    v.
    )
    )
    (Underground Storage TanK
    ILLINOIS
    ENVIRONMENTAL
    )
    Fund Determination)
    PROTECTION AGENCY,
    )
    )
    Respondent.
    ORDER OF THE BOARD (by 3. Anderson):
    Currently before the Board are the following motions: 1) an
    August 25, 1992 motion for leave to file a motion to strike filed
    by Reichhold Chemicals, Inc. (Reichhold); 2) an August 25, 1992
    motion to strike affirmative defense filed by Reichhold; and 3)
    an August 26, 1992 motion for leave to supplement the record on
    appeal filed by Reichhold. The Illinois Environmental Protection
    Agency (Agency) filed a response to Reichhold’s motion for leave
    to file on September 3, 1992.
    Reichhold’s Motion for Leave to File
    In its motion for leave to file, Reichhold asks that the
    Board grant it a one day extension, until August 25, 1992, in
    which to file its motion to strike the Agency’s affirmative
    defense. In support of its motion, Reichhold states that, on
    July 29, 1992, the Agency filed, and mailed to Reichhold’s
    attorney, its answer and affirmative defense in this case.
    Reichhold adds that, because 35 Ill. Athu. Code 101.144 provides
    that service by mail is presumed to be complete four days after
    mailing, Reichhold’s motion to strike should have been filed by
    August 24, 1992. Reichhold also asserts that the Agency will not
    be prejudiced by the one day extension, but that the parties and
    the Board will be prejudiced if the motion is not granted.
    In response, the Agency argues that Reichhold’s motion
    should be denied as being untimely filed. The Agency adds that
    no material prejudice will result if the motion is denied because
    Reichhold will have the opportunity to fully argue and present
    evidence on all of the issues raised by the Agency’s answer and
    affirmative defense at the September 23, 1992 hearing. In the
    alternative, the Agency asks that it be given the opportunity to
    respond to Reichhold’s motion to strike if the Board grants the
    motion for leave to file.
    The Board hereby grants Reichhold’s motion for leave to
    file. However, because the Agency had adequate time to file a
    response to the motion but chose not to do so, and because the
    hearing in this matter is six days away, the Board will not give
    0 I 36-0063
    2
    the Agency additional time to respond to the motion.
    We do not believe that Reichhold’s request for a one-day
    extension is unreasonable in light of the fact that Reichhold’s
    motion to strike was accompanied by the motion for leave to file.
    Moreover~ ~it- appears that Reichhold may—indeed be_pre~J-udiced -i~f
    the Board were to deny the motion and order the parties to spend
    additional time and money at and after hearing arguing an issue
    that the Board may be able to resolve at this time.
    Reichhold’s Motion to Strike Affirmative Defenses
    In its motion, Reichhold asks that the Board strike the
    Agency’s affirmative defense that the tanks which are the subject
    of this appeal are or may be “improperly registered for purposes
    of the underground storage tank program and are not eligible to
    access the fund.” (Affirmative Defense, par. 5.) Reichhold
    argues that the Board should strike the defense because the
    Agency did not raise the issue of improper registration in its
    May 26, 1992 denial letter. Rather, Reichhold notes that the
    Agency’s defense is based on a June 26, 1992 letter that
    Reichhold submitted to the Agency thirty days after the record
    closed in this matter.
    The Board hereby grants Reichhold’s motion to strike. A
    review of the Agency’s May 26, 1992 denial letter confirms that
    the Agency did not raise the issue of improper registration in
    the letter. Moreover, a review of the Agency’s affirmative
    defense confirms that the defense is based on Reichhold’s June
    26, 1992 letter to the Agency. The Agency, however, cannot
    raise on appeal a reason for denial that it failed to cite in its
    denial letter. Pulitzer Community NewsPapers. Inc. v. IEPA
    (December 20, 1990), PCB 90—142; Galesbura Cottage Hospital v.
    IEPA (August 13, 1992), PCB 92-62. (see also Clinton County Oil
    Co.
    V.
    IEPA (March 26, 1992), PCB 91—163; Burwell Oil Services,
    Inc. v. IEPA (July 9, 1992), PCB 92—42.)
    Reichhold’s Motion to Supplement the Record
    In its motion, Reichhold requests that the Board admit a
    “45-Day Report”, dated May 22, 1992, into the record. In support
    of its motion, Reichhold states that the Agency sent Reichhold
    the report on May 22, 1992, and that the report contains
    significant information pertaining to the issue in this case
    (i.e., the contents of its underground storage tanks).
    Because the Agency has not responded to Reichhold’s motion,
    it can be deemed to have waived any objection to the motion. 35
    Ill. Adm. Code 103
    .
    140(c). Accordingly, the Board hereby grants
    Reichhold’s motion.
    IT IS SO ORDERED.
    DI 36-OO6Le
    3
    Board Members R. Flemal, B. Forcade, and M. Nardulli
    dissented.
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
    Board hereby certi~ytI~atthe above order was adopteri on th~
    _______
    day-~of-_
    A~k~
    --~92-,--by~a—vote-~o~
    4L~~5
    Dorothy M. ,~unn, Clerk
    Illinois P~11utionControl Board
    0136-0065

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