ILLINOIS POLLUTION CONTROL
    BOARD
    January 7,
    1993
    CITY OF DES PL~INES,GAIL
    )
    PAPASTERIADIS, and GABRIEL
    AND
    )
    LINDA GULO,
    )
    )
    Complainants,
    )
    v.
    )
    PCB 92—127
    )
    ~Enforceaent)
    SOLID WASTE
    AGENCY OF
    NORTHERN
    )
    COOK
    COUNTY,
    )
    )
    Respondent.
    )
    ORDER OF THE
    BOARD
    (by R. C.’ Plemal):
    On September
    1,
    1992, complainants tiled
    this
    action
    alleging
    violation by respondent of
    Section
    22.14 of the
    Illinois
    Environmental Protection
    Act
    (Ill. Rev. Stat. 1991, ch. 111¼,
    par. .102214)(Act).
    OnDecember 18, 1992,
    respondent
    filed a
    document entitled “Affirmative Defenses’.
    ‘On
    December
    21,
    hearing commenced on this proceeding.
    At hearing, respondent
    presented the document entitled “Affirmative Defenses” to
    the
    complainants.
    Complainants moved orally
    at
    hearing and in
    writing
    by motion filed December 28, 1992 to strike the
    affirmative defenses document based on the fact that the
    document
    was not served on complainants prior to bearing.
    Respondent
    filed a response to the motion with a motion to file the
    affirmative defenses
    nunc
    pro
    tunc
    on January
    4,
    1993.
    Section 103.122(d)
    allows the filing of an effir~ative
    defense with the answer or supplemental answer prior to
    bearing:
    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 constituting 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
    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
    0138-0267
    —2—
    thereto, so long as no undue surprise results that
    cannot be remedied by a continuance.
    The Board finds that complainants did not receive the
    affirmative defenses prior to hearing.
    However, the Board’s
    rules allow for supplemental pleading so long as no undue
    surprise that cannot be remedied by a continuance would result.
    Here the matter is continued until January 11, 1993, and
    complainants have not presented any evidence that any alleged
    surprise could not be remedied at that time.
    Complainants
    *&~
    present answers to the affirmative defenses at that time.
    Furthermore, the hearing
    ,fficer is authorized to further
    continue the Janua’-y 11, 1993 hearing should that prove necessary
    for the parties to remedy any surprise to
    cc~p1ainants.
    Complainants’ motion to strike is denied.
    Respondent’s
    motion to file
    nunc pro tunc
    is granted.
    IT IS SO ORDERED.
    I, Dorothy N.
    Gunn,
    Clerk of
    the
    Illinois Pollution Control
    Board, hereby certify
    hat the above order
    was adopted on the
    7tZ’
    day of
    ‘
    ,
    1993,
    by
    a vote of
    0138-0268
    Control Board

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