ILLINOIS POLLUTION CONTROL BOARD
    March 19, 1998
    PEOPLE OF THE STATE OF ILLINOIS,
    Complainant,
    v.
    AMERICAN WASTE PROCESSING LTD.,
    an Illinois Corporation,
    Respondent.
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    PCB 98-37
    (Enforcement - Land)
    ORDER OF THE BOARD (by R.C. Flemal):
    This matter comes before the Board on a complaint filed September 8, 1997, by the
    Illinois Attorney General, on behalf of the People of the State of Illinois (complainant), on his
    own motion and at the request of the Illinois Environmental Protection Agency (Agency). The
    six-count complaint alleges respondent, operator of a hazardous waste transfer station, violated
    various sections of the Board’s waste disposal regulations. In response to the complaint,
    American Waste Processing, Ltd. (American) filed an answer and affirmative defenses (defenses).
    The complainant filed a motion to strike and/or dismiss respondent’s affirmative defenses (motion
    to strike). American responded with a motion to dismiss the complaint (motion to dismiss). For
    the reasons stated below, the Board grants the complainant’s motion to strike and denies
    American’s motion to dismiss.
    MOTION TO DISMISS
    American’s motion to dismiss, filed March 4, 1998, asserts the complainant’s claims are
    barred by the statue of limitations under 735 ILCS 5/13-205 (1995). Specifically, American
    alleges that the statute applies to bar any action commenced five years after the commission of the
    alleged violation. The complainant cites Pielet Bros. Trading Co. v. Pollution Control Board, 110
    Ill. App. 3d 752, 757, 442 N.E.2d 1374, 1378 (1982) for the proposition that the statute of
    limitations does not apply if the state is asserting a public right to a clean and healthy environment
    on behalf of all the people of the State. We find that the instant action is being brought on behalf
    of the public, and therefore that the statute of limitations does not apply. American’s motion to
    dismiss is denied. See People v. Inspiration Development Co., (March 19, 1998), PCB 97-207.
    MOTION TO STRIKE
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    The complainant’s motion to strike and/or dismiss respondent’s affirmative defenses, filed
    February 20, 1998, generally asserts that American failed to allege facts constituting any of the
    affirmative defenses, and failed to allege any affirmative defenses as a matter of law.
    Arguments
    First Affirmative Defense
    In its first affirmative defense, American argues the complaint is barred because the Board
    lacks jurisdiction. Answer at 2. The complainant argues that this affirmative defense is not
    factually or legally sufficiently pled, lacks specificity, fails to “give color” to American’s claim and
    that the Board previously found this claim lacked merit. February 20, 1998, Memorandum in
    Support of Motion to Strike and/or Dismiss Respondent’s Affirmative Defenses at 4 (hereinafter
    Memorandum.)
    Second Affirmative Defense
    American argues in its second affirmative defense that the Illinois Environmental
    Protection Act (Act) bars the relief sought by the complaint because the Agency failed to follow
    the jurisdictional requirements set forth by the Act. Answer at 2. The complainant argues that
    this affirmative defense is not factually or legally sufficiently pled, lacks specificity, fails to “give
    color” to American’s claim and that the Board previously found this claim lacked merit.
    Memorandum at 4-5.
    Third Affirmative Defense
    American next argues that doctrine of laches bars the relief sought. Answer at 2. The
    complainant responds that this affirmative defense is not factually or legally sufficiently pled, lacks
    specificity, fails to “give color” to American’s claim and notes laches is disfavored when the
    defense is raised against a complainant who is the State and is discharging its governmental
    functions. Memorandum at 4-5. The complainant also asserts that the Board has held that laches
    does not normally apply to enforcement actions brought pursuant to the Act. Memorandum at 5.
    Fourth Affirmative Defense
    In its fourth affirmative defense American alleges relief is barred by an accord and
    satisfaction which existed between the parties because a Part B Permit was issued to American
    and because of the joint dismissal of the permit appeal pending before the Board, PCB 91-38.
    Answer at 2. The complainant responds that this affirmative defense is not factually or legally
    sufficiently pled, lacks specificity, fails to “give color” to American’s claim and that the Board
    previously found this claim lacked merit. Memorandum at 4, 6.
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    Fifth Affirmative Defense
    In its fifth affirmative defense, American alleges that relief is barred by the statute of
    limitations. Answer at 2. The complainant responds that this affirmative defense is not factually
    or legally sufficiently pled, lacks specificity, fails to “give color” to American’s claim and argues
    that a statute of limitations does not apply where the State brings the matter on behalf of the
    people and asserts a public right to a clean and healthy environment. Memorandum at 4, 6.
    Sixth Affirmative Defense
    American asserts as its sixth and final affirmative defense that the penalties proposed in the
    complaint are excessive. Answer at 2. The complainant responds that this is argumentative and
    does not constitute a valid affirmative defense. Memorandum at 4. Also, the complainant notes
    that the Illinois General Assembly has determined both that the penalties requested are the
    statutory maximum and that violations of the Act and the Regulations promulgated thereunder
    pose an environmental risk and/or danger. Memorandum at 7.
    Discussion
    Board Jurisdiction Exists
    In its order in this matter issued October 16, 1997, the Board rejected American’s
    assertion that the Board lacked jurisdiction in this matter. The Board will not reconsider the
    claim. American’s first and second affirmative defenses are stricken.
    Doctrine of Laches Inapplicable
    American has failed to establish the two principal elements of laches: (1) lack of due
    diligence of the party asserting the claim, and (2) prejudice. See VanMilligan v. Board of Fire and
    Police Commissioners, 158 Ill.2d 84, 630 N.E.2d 830 (1994). Moreover, although laches can
    apply to governmental bodies under compelling circumstances, American has not alleged that
    compelling circumstances exist. The Board does not find that such circumstances exist. See
    Hickey v. Illinois Central Railroad Co., 35 Ill.2d 427, 447-48, 220 N.E.2d 415, 425-26 (1996)
    (“[T]he State may be estopped when acting in a proprietary, as distinguished from its sovereign or
    governmental, capacity and even, under more compelling circumstances, when acting in its
    governmental capacity.”). American’s third affirmative defense is stricken.
    Accord and Satisfaction Inapplicable
    In its order issued August 1, 1996, the Board rejected American’s assertion that the
    alleged violations were compromised, settled and merged into a Part B permit, because American
    failed to provide any documentation of the terms of that agreement. The Board also found the
    Part B permit alone did not impede the Agency from bringing an enforcement action for past
    violations. The Board will not reconsider the claim. American’s fourth affirmative defense is
    stricken.
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    Statue of Limitations Inapplicable
    As discussed above, no statute of limitations applies in this action. American’s fifth
    affirmative defense is stricken.
    Penalty Issues Improper as Affirmative Defenses
    American’s affirmative defense that the penalties proposed in the complaint are excessive
    is improper. An affirmative defense is a response to a claim which attacks the complainant’s right
    to bring an action. See Farmer’s State Bank v. Phillips Petroleum Co. (1/23/97) PCB 97-100, slip
    op. at 2 n.1. Accordingly, as the Board ruled in People v. Douglas Furniture of California, Inc.,
    (5/2/97), PCB 97-133, slip op. at 6, a defense which speaks to imposition of a penalty rather than
    the underlying cause of action is not an “affirmative defense” to that cause of action. The sixth
    affirmative defense is stricken. Pursuant to Sections 33(c) and 42(h) of the Act, American may
    argue and address at hearing the appropriateness of imposing any penalty in this matter.
    CONCLUSION
    For the reasons set forth herein, American’s motion to dismiss is denied, and American’s
    six affirmative defenses are stricken.
    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 19th day of March 1998, by a vote of 7-0.
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

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