ILLINOIS POLLUTION CONTROL BOARD
    May 7, 1998
    PEOPLE OF THE STATE OF ILLINOIS,
    Complainant,
    v.
    CHEMETCO, INC.
    Respondent.
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    PCB 96-76
    (Enforcement - Land)
    OPINION AND ORDER OF THE BOARD (by K.M. Hennessey):
    Respondent Chemetco, Inc. (Chemetco) owns and operates a secondary metal smelting
    facility (facility) near Hartford, Madison County, Illinois. The facility has several areas that
    contain, or once contained, wastes that are considered hazardous. These wastes trigger various
    laws and regulations. In this case, the Attorney General, on behalf of the people of the State of
    Illinois (State), alleges that Chemetco has violated some of those laws and regulations.
    Specifically, in count I of its complaint, the State alleges that Chemetco did not perform
    the groundwater sampling and reporting that the Illinois Environmental Protection Act, 415 ILCS
    5/1
    et seq
    . (1996) (Act), and Board regulations require. In count II, the State alleges that
    Chemetco has not provided the financial or liability assurance that the Act and Board regulations
    require.
    On February 19, 1998, the Board granted the State partial summary judgment on liability
    on counts I and II, excluding the State’s claim in count II that Chemetco has violated 35 Ill. Adm.
    Code 725.242. The Board ordered this matter to hearing on that claim and on the proper penalty
    amount for the violations that the Board did find.
    The State now moves to amend its complaint under 35 Ill. Adm. Code 103.210(a)
    (motion, cited as “Mot. at __.”). The first amended complaint attached to the motion adds count
    III, which alleges that Chemetco has failed to annually update various estimates as Board
    regulations require. Mot. at 2. The State alleges that it learned of these additional violations
    during discovery and during preparation and briefing of its motion for summary judgment. Mot.
    at 1. The State also alleges that this claim is related to count II and will not result in surprise to
    Chemetco. Mot. at 2. Chemetco has not filed a response to the motion.
    Under Section 103.210(a) of the Board’s rules, “Proof may depart from pleadings and
    pleadings may be amended to conform to proof, so long as no undue surprise results that cannot
    be remedied by a continuance.” Given that the parties are still engaged in discovery, that no
    hearing has been scheduled, and that the count to be added is related to an existing count, the
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    Board finds that no undue surprise will result if the amendment is allowed. See Gordon
    Krautsack et al. v. Bhogilal Patel (December 20, 1995), PCB 95-143, slip op. at 1 (granting a
    similar motion in similar circumstances). The Board therefore grants the motion. Chemetco may
    respond to the first amended complaint in accordance with the Board’s procedural rules.
    IT IS SO ORDERED.
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
    the above order was adopted on the 7th day of May 1998 by a vote of 7-0.
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

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