ILLINOIS POLLUTION CONTROL BOARD
    April 17, 1997
    PEOPLE OF THE STATE OF ILLINOIS,
    Complainant,
    v.
    BIG O, INC., an Illinois corporation,
    Respondent.
    )
    )
    )
    )
    )
    )
    )
    )
    )
    PCB 97-130
    (Enforcement - Air)
    ORDER OF THE BOARD (by J. Theodore Meyer):
    This matter is before the Board on a March 19, 1997 motion to strike respondent’s
    alleged affirmative defenses filed by complainant (Motion). The complaint was filed on
    January 31, 1997; the response was filed on February 28, 1997 in which respondent asserted
    that a complaint filed two and a half years after the alleged violations occurred is barred by
    laches. Respondent also asserted that it adequately notified the Environmental Protection
    Agency of the demolition. Complainant argues generally that respondent’s assertion that
    Counts I, II and III are barred by the doctrine of laches is erroneous. Complainant further
    argues that respondent’s other affirmative defenses are insufficiently pled and therefore should
    be dismissed. Respondent, Big O, Inc. (Big O), did not file a response to the motion to strike.
    Complainant contends that, absent extraordinary circumstances, the doctrine of laches
    cannot be asserted against the state in actions involving public rights. Complainant argues that
    the right to a clean environment is a substantial public interest, and since the Attorney General
    is attempting to protect that right, and there are no extraordinary circumstances in this matter,
    Big O’s affirmative defense of laches is insufficient as a matter of law and should be stricken.
    (Motion at 2-4.)
    Laches is an equitable doctrine which precludes the assertion of a claim by a party
    whose unreasonable delay in raising such claim has prejudiced the opposing party. (Tully v.
    Illinois, 143 Ill.2d 425, 432, 574 N.#.2d 659 (1991).) However, the doctrine of laches may
    not be asserted against the state in actions involving public rights, under usual circumstances.
    Hickey v. Illinois Central R.R. Co., 35 Ill.2d 427, 220 N.E.2d 415 (1
    st
    Dist. 1966), cert.
    denied, 386 U.S. 934 (1967), reh’g denied, 386 U.S. 1000 (1967).) In addition, the Board
    has previously held that the equitable doctrine of laches generally does not apply to
    enforcement actions brought under the Illinois Environmental Protection Act (Act). (People of
    the State of Illinois v. Environmental Control and Abatement, Inc., (January 4, 1996) PCB 95-
    170; City of Des Plaines, Gail Papasteriadis and Gabriel and Linda Gulo v. Solid Waste
    Agency of Northern Cook County, (May 20, 1993) PCB 92-127.) In assessing the period in
    which claims will be barred by laches, equity follows the law, and generally courts of equity
    will adopt the period of limitations established by statute. (Beynon Building Corp. v. National
    Guardian Life Ins. Co., 118 Ill. App. 3d 754, 455 N.E.2d 246, 253 (2d Dist. 1983). Thus, if
    2
    the right to bring a lawsuit is not barred by the statute of limitations, unless conduct or special
    circumstances make it inequitable to grant relief, then the equitable doctrine of laches does not
    bar a lawsuit either. (Id.)
    The Board finds that complainant brought this enforcement action pursuant to Section
    31 of the Act which does not provide for a specific statutory limitation period within which a
    complaint must be filed. Also Big O has not shown where complainant has unreasonably
    delayed bringing this action to the prejudice of Big O. Nor has Big O demonstrated special or
    unusual circumstances to compel the Board to depart from the general rule. Therefore, the
    Board finds that the doctrine of laches does not apply in this matter; as such, the Board strikes
    the first affirmative defense in Counts I and II, as well as the affirmative defense in Count III.
    Complainant also argues that Big O’s other affirmative defenses as to Counts I and II
    should be stricken because they fail to raise an adequate defense. The Board finds that these
    affirmative defenses generally involve facts and defenses which Big O can present at hearing.
    Therefore, the Board denies complainant’s motion to strike as to Big O’s other affirmative
    defenses in Counts I and II.
    In sum, the Board grants complainant’s motion to strike Big O’s affirmative defense of
    laches in Counts I, II and III. The Board denies complainant’s motion to strike Big O’s other
    affirmative defenses in Counts I and II. This matter shall proceed to hearing.
    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 _____ day of ___________, 1997, by a vote of
    ______________.
    ___________________________________
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

    Back to top