ILLINOIS POLLUTION CONTROL BOARD
    May 18, 2000
    PEOPLE OF THE STATE OF ILLINOIS,
    Complainant,
    v.
    AMERICAN DISPOSAL COMPANY
    AND CONSOLIDATED RAIL
    CORPORATION,
    Respondents.
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    PCB 00-67
    (Enforcement - RCRA)
    ORDER OF THE BOARD (by C.A. Manning):
    Respondent Consolidated Rail Corporation (Conrail) filed a motion to dismiss on March
    3, 2000, with leave of the hearing officer. Conrail asks the Board to dismiss a complaint filed
    on October 7, 1999, by the Attorney General on behalf of the People of the State of Illinois
    (complainant). The complaint, filed under Section 31 of the Environmental Protection Act (Act)
    (415 ILCS 5/31 (1998)), alleges that respondents American Disposal Company (ADI) and
    Conrail violated Section 21(a) of the Act (415 ILCS 5/21(a) (1998)) by causing or allowing the
    open dumping of waste.
    Complainant filed a response to Conrail’s motion to dismiss on April 6, 2000, with leave
    of the hearing officer. Complainant filed a corrected response on April 7, 2000, with a motion
    for leave to file
    instanter
    , which the Board grants. Conrail filed a reply to complainant’s
    response on April 17, 2000. Although a movant has no automatic right to reply (see 35 Ill.
    Adm. Code 103.140(c)), and Conrail did not move the Board for leave to file the reply, the
    Board will consider the reply in the interest of judicial economy.
    For the reasons set forth in this order, the Board denies Conrail’s motion to dismiss.
    BACKGROUND
    ADI, an Illinois corporation, was involuntarily dissolved on February 2, 1998, for
    failure to file its annual report and pay its franchise taxes. Comp. at 2.
    1
    ADI is engaged in the
    business of hauling waste, and operates a site located at 3725 South Maplewood, Chicago,
    1
    Cites to the complaint shall be referred to as “Comp. at ___.” Cites to the motion to dismiss
    shall be referred to as “Mot. at ___.” Cites to the corrected response to the motion to dismiss
    shall be referred to as “Resp. at ___.”
    2
    Illinois (site).
    Id.
    Conrail is a Pennsylvania corporation licensed to do business in Illinois, and
    is in good standing.
    Id.
    Conrail owns a portion of the site. Comp. at 3.
    The complaint alleges that ADI and Conrail have violated Section 21(a) of the Act (415
    ILCS 5/21(a) (1998)) prohibiting persons from causing or allowing the open dumping of waste.
    Comp. at 3-5. The complaint also alleges that from November 2, 1994, and continuing to May
    8, 1995, or a date better known to respondents, ADI and Conrail engaged in or allowed open
    dumping by consolidating six drums of unknown waste at the site which is not a sanitary
    landfill. Comp. at 2-3; Resp. at 1-2. Neither Conrail nor ADI filed an answer to the
    complaint.
    ARGUMENT AND ANALYSIS
    Conrail argues that Section 21(a) of the Act (415 ILCS 5/21(a) (1998)) is subject to the
    18-month statute of limitations for commencement of an action to prosecute a Class A
    misdemeanor under 720 ILCS 5/3-5(b) (1998). Mot. at 2. This section of the Criminal Code
    provides that, unless otherwise provided by statute, the prosecution of any misdemeanor must
    be commenced within 18 months after its commission. In support of this position, Conrail cites
    People v. Wolohan Lumber Co., 263 Ill. App. 3d 344, 637 N.E.2d 1064 (3d Dist. 1994).
    Mot. at 2.
    Alternatively, Conrail argues that the two-year limitation set forth in 735 ILCS 5/13-202
    (1998) applies. Mot. at 2.
      
    This section governing civil personal injury actions provides that
    actions for damages for an injury to the person resulting from the commission of a Class X
    felony shall be commenced within two years after the cause of action arose. Under either of
    these provisions, Conrail asserts that the statute of limitations on this action would have expired
    in 1997. Mot. at 2.
    Complainant asserts that Conrail’s arguments are wholly inapplicable to this case. Resp.
    at 2. Wolohan Lumber Co. was an action brought pursuant to the criminal enforcement
    provisions of Section 44 of the Act (415 ILCS 5/44 (1998)). The present case is brought
    pursuant to the civil enforcement provisions of Section 31 of the Act (415 ILCS 5/31 (1998)).
    Resp. at 2. Therefore, complainant argues, the statute of limitations set forth in the Criminal
    Code do not apply. Resp. at 3.
    Complainant further argues that there is no statute of limitation for civil enforcement
    actions brought pursuant to Section 31 of the Act. Resp. at 4. Complainant cites Pielet Brother
    Trading, Inc. v. Pollution Control Board, 110 Ill. App. 3d 752, 442 N.E.2d 1374 (5th Dist.
    1982), in which the court upheld a Board determination that the statute of limitation does not
    apply when the Agency seeks to protect the public’s right to a clean environment.
    Id.
    The Board sees no reason to depart here from its ruling in Pielet and subsequent cases
    that statutes of limitation are not applicable where the State is asserting public rights pursuant to
    the civil enforcement provisions of Section 31 of the Act. See People v. Eagle-Picher-Boge,
    L.L.C. (July 22, 1999), PCB 99-152; People v. Inspiration Development Co. (March 19,
    3
    1998), PCB 97-207; People v. American Waste Processing Ltd. (March 19, 1998), PCB 98-37;
    and People v. Bentronics Corporation (October 17, 1996), PCB 97-20.
    Here, the action was brought pursuant to Section 31 of the Act, seeking enforcement of
    the provision of the Act that prohibits the open dumping of waste. There is no applicable
    statute of limitations for civil enforcement actions brought pursuant to Section 31 of the Act.
    Moreover, the Board agrees with the complainant that the statute of limitations applicable in
    criminal proceedings is not applicable in this case where the complainant has not sought
    enforcement pursuant to Section 44 of the Act.
    Conrail’s reply asserts that complainant cannot bring an action under Section 31 of the
    Act because of the alleged failure to notify Conrail pursuant to Section 31(a)(1), which provides
    in part:
    Within 180 days of becoming aware of an alleged violation of the Act or any
    rule adopted under the Act or of a permit granted by the Agency or condition of
    the permit, the Agency shall issue and serve, by certified mail, upon the person
    complained against a written notice informing that person that the Agency has
    evidence of the alleged violation. 415 ILCS 5/31(a)(1) (1998).
    2
    Consistent with Board precedent, the Board finds that the Attorney General is not
    subject to Section 31(a) of the Act and has broad authority to bring an enforcement action on
    behalf of the People of the State of Illinois under Section 31(d) of the Act. See,
    e.g.
    , People v.
    Chemetco, Inc. (July 8, 1998), PCB 96-76, slip op. at 2; People v. Geon Company, Inc.
    (October 2, 1997), PCB 97-62, slip op. at 9-10; People v. Heuermann (September 18, 1997),
    PCB 97-92, slip op. at 7.
    For these reasons, the Board denies Conrail’s motion to dismiss. The Board directs the
    hearing officer to proceed to hearing as soon as practicable.
    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 18th day of May 2000 by a vote of 6-0.
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board
    2
    This provision became effective on August 1, 1996. See Public Act 89-596.

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