ILLINOIS POLLUTION CONTROL BOARD
    March 22, 1985
    LANDFILL EMERGENCY ACTION
    COMMITTEE,
    )
    Complainant,
    v.
    )
    PCB 85—9
    MCHENRY COUNTY SANITARY LANDFILL
    )
    AND RECYCLING CENTER,
    INC.,
    )
    Respondent.
    ORDER OF THE BOARD
    (by J. Anderson):
    This complaint was filed by the Landfill Emergency Action
    Committee (Committee)
    on January 23,
    1985.
    The Mdflenry County
    Sanitary Landfill and Recycling Center,
    Inc.
    (The Landfill) moved
    to dismiss
    the Complaint on February
    4, 1985,
    for reasons argued
    in memoranda filed February
    4 and February 11.
    The Committee
    filed a response
    in opposition on February 26,
    to which
    the
    Landfill filed a reply on March
    6,
    1985.
    The Landfill’s first contention
    is that the complaint has
    not been brought
    in good faith and is therefore frivolous within
    the meaning
    of Section 31(b)
    of the Environmental Protection Act
    and 35 Ill. Mm. Code 103.124(G).
    The Landfill asserts that the
    complaint has been brought for “political rather than
    environmental reasons”, to “create a prosecution that can be
    dragged before the Mcflenry County Board”
    in an ongoing site
    location suitability approval proceeding pursuant to the
    Landfill’s expansion request
    (Am. Memo,
    of February 11,
    1984,
    p.
    1—2).
    In support of this proposition, the Landfill notes the
    Agency’s failure to prosecute for past violations as documented
    in inspection reports.
    The Board agrees with the Committee that absence of Agency
    prosecution
    is no indicia of the merits of
    a particular
    complaint, given the Agency’s need to allocate its scarce
    resources.
    Any question of improper usage of this enforcement
    proceeding
    in an SB 172 proceeding
    is more appropriately
    addressed and argued
    in the SB 172 proceeding.
    The Board does
    not find the allegations of this complaint
    to be frivolous.
    The Landfill next notes that the complaint contains claims
    extending back to 1974.
    It argues that the majority of these
    claims are barred by the statute of limitations.
    The Landfill
    argues that the two—year statute of limitations
    of Ill.
    Rev.
    Stat.
    1983,
    ch.
    110
    13—202
    “Personal Injury—Penalty”
    is
    applicable here, since
    the plaintiff
    is
    a non—governmental
    entity.
    It also suggests that the five—year limit of Paragraph
    13—205 would apply to
    a governmental entity.
    83-241
    —2—
    The Board rejects this contention.
    In Pielet Bros. Trading,
    Inc.
    v.
    IEPA and IPCB,
    110 Ill. App.
    3d 752,
    442 N.E.
    2d 1374
    (1982),
    the Appellate Court agreed with the Board’s conclusion
    that
    the two—year limitation period
    (since renumbered from Ill.
    Rev. Stat.
    1979,
    ch.
    83,
    par.
    15) did not apply to actions
    brought by the Agency.
    In the Board’s ruling
    in Pielet Bros.
    Trading,
    Inc.
    v.
    IEPA and IPCB, PCB 80—185,
    44 PCB 219,
    223,
    December 17,
    1981,
    the Board had found that “the Environmental
    Protection
    Act does not expressly limit any individual’s cause
    of action
    to enforce the right to a clean environment, and that
    Section 15 does not expressly limit the right of
    a state agency
    to vindicate
    a public right.”
    On review,
    the Court’s analysis was that:
    “Unless the terms of a Statute of Limitations
    expressly include
    the State,
    county, municipality
    or
    other governmental agencies,
    the statute,
    so far as
    public
    rights are concerned,
    as distinguished from
    private and local rights,
    is inapplicable to
    them.
    (Clare
    v. Bell
    (1941), 378 Ill. 128, 130—31,
    37 N.E. 2d
    812,
    814.)
    The question is whether
    the State
    (or
    its
    agency or subdivision)
    is asserting public rights on
    behalf
    of all the people of the State
    or private rights
    on behalf
    of
    a limited group.
    (In re Bird’s Estate
    (1951), 410
    ill. 390,
    394,
    102 N.E. 2d 329,
    331.)
    Here,
    the Agency argues, and we agree,
    that what the
    Agency seeks
    is to protect the public’s right to
    a
    clean environment.
    Moreover, not only does section
    14
    of
    the Limitations Act fail to expressly include the
    State
    or the Agency, but section 14
    is one of a group
    of
    sections designated by the legislature as pertaining
    to “Personal Actions.”
    See People
    ex
    rel. Stubblefiedl
    v.
    City of West Frankfort (4th Dist.
    1950),
    340 Ill.
    App.
    443, 447,
    92 N.E. 2d 531, 533.
    *
    **
    In conclusion, we hold that the Board did not err
    in determining
    that section
    14 of the Limitations Act
    did not apply to the
    instant action.”
    Although the Committee
    is not a state
    agency,
    the Board
    cannot find that
    the two—year limitation applies to this
    action.
    The Board finds that the Committee,
    acting
    in the nature
    of
    a “private attorney general”,
    is asserting the public’s right
    to a clean environment on behalf of all of the people of
    the
    state,
    rather than private rights on behalf of
    a limited group.
    Enforcement based on Agency inspection documents buttresses this
    conclusion
    in the case.
    Finally,
    the Board further does not find
    the five—year limitation of Paragraph 13—205 applicable
    to this
    action,
    since
    a)
    it too
    is
    a limitation on “personal actions”
    as
    is Paragraph 13—202
    ,
    and b)
    the Pielet court did not apply
    (or
    discuss)
    the identical predecessor limitation section in that
    action.
    63-242
    —3—
    The Landfill’s final argument
    is that all claims are stale,
    since the most recent violation alleged
    is some 18 months old and
    no continuing violations
    are alleged.
    It also argues that the
    plaintiff should be estopped from proceeding, on the grounds that
    the Committee had previously failed to examine inspection reports
    and
    to file
    a complaint.
    As
    a consequence, the Landfill asserts
    that
    it was entitled
    to rely on the fact that
    its performance was
    satisfactory to the community.
    The Board will not dismiss the complaint on the basis of
    stale claims or estoppel.
    The Board has found that estoppel,
    waiver
    or laches would not bar the Agency itself from taking
    enforcement action concerning “stale” claims,
    e.g.
    IEPA v. City
    of
    Moline, PCB 82—154,
    September 6, 1984,
    p.
    2—3; even if
    estoppel were
    to attach to the Agency, no convincing argument has
    been presented concerning affirmative misconduct of the Committee
    which would give rise to estoppel.
    The motion
    to dismiss
    is denied.
    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
    ~Z~-~-
    day of
    ________________,
    1985 by a vote
    of
    _________________
    Dorothy M. Gunn,
    Clerk
    Illinois Pollution Control Board
    63-243

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