ILLINOIS POLLUTION CONTROL BOARD
    January 8, 1998
    PEOPLE OF THE STATE OF ILLINOIS,
    Complainant,
    v.
    THE BIGELOW GROUP, INC., an Illinois
    corporation,
    Respondent.
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    PCB 97-217
    (Enforcement - Land)
    ORDER OF THE BOARD (by M. McFawn):
    This case is before the Board on the “Motion to Dismiss” (Motion) filed on August 27,
    1997, by respondent The Bigelow Group, Inc. (Bigelow). On December 3, 1997, the
    Attorney General on behalf of the People of the State of Illinois filed a “Motion for Leave to
    File Response to Motion to Dismiss Instanter” seeking leave to file a response to the Motion.
    (By an order entered by the hearing officer on September 30, 1997, complainant’s response to
    the motion was due on November 26, 1997; the Attorney General seeks leave to file a
    response late.) The Board grants the Attorney General’s motion and accepts the “Response to
    Motion to Dismiss” (Response) for filing.
    On December 17, 1997, Bigelow filed a “Reply Memorandum of Respondent in
    Support of its Motion to Dismiss” (Reply) with the clerk of the Board. Under 35 Ill. Adm.
    Code 101.241(c), a moving party has no right to reply to a response to a motion, except as
    permitted by the Board or hearing officer to prevent material prejudice. Bigelow did not
    obtain leave of the Board to file its reply. Furthermore, all arguments raised by Bigelow in its
    Reply pertain to issues which do not impact the Board’s ruling on this motion. Accordingly
    the Board finds no material prejudice which would justify allowing a reply. Bigelow’s Reply
    is rejected and ordered stricken.
    The basis of Bigelow’s motion is the doctrine of
    laches
    .
    Laches
    is an equitable doctrine
    which bars relief where a defendant has been misled or prejudiced because of a plaintiff’s
    delay in asserting a right. City of Rochelle v. Suski, 206 Ill.App.3d 497, 501, 564 N.E.2d
    933, 936 (2nd Dist. 1990). In this case, Bigelow claims prejudice because for nearly two
    years prior to filing of this enforcement action the Attorney General did not respond to
    Bigelow’s settlement proposal. Mot. at 3-4.
    The Attorney General argues that
    laches
    cannot be applied in this case because the
    petitioner is the State, discharging its governmental functions. Although application of
    laches
    to public bodies is disfavored, it has nevertheless been clear at least since the Supreme Court’s
    opinion in Hickey v. Illinois Central Railroad Co., 35 Ill.2d 427, 220 N.E.2d 415 (1966) that
    2
    the doctrine can apply to governmental bodies under “compelling circumstances.” The court
    stated in that opinion:
    It is, of course, elementary that ordinary limitations statutes and
    principles of
    laches
    and estoppel do not apply to public bodies
    under usual circumstances, and the reluctance of courts to hold
    governmental bodies estopped to assert their claims is particularly
    apparent when the governmental unit is the State. There are
    sound bases for such policy. * * * [A]pplication of
    laches
    or
    estoppel doctrines may impair the functioning of the state in the
    discharge of its government functions, and [] valuable public
    interests may be jeopardized or lost by the negligence, mistakes
    or inattention of public officials.
    But it seems equally true that the reluctance to apply equitable
    principles against the State does not amount to absolute immunity
    of the State from
    laches
    and estoppel under all circumstances.
    The immunity is a qualified one and the qualifications are
    variously stated. It is sometimes said
    laches
    and estoppel will not
    be applied against the state in its governmental, public or
    sovereign capacity, and it cannot be estopped from the exercise
    of its police powers or in its power of taxation or the collection
    of revenue.
    It has, however, been stated with frequency that the 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. Hickey, 35 Ill.2d at 447-48, 220 N.E.2d at 425-26
    (citations omitted).
    The Supreme Court recently reaffirmed its holding in Hickey in Van Milligan v. Board of Fire
    & Police Commissioners, 158 Ill.2d 84, 630 N.E.2d 830 (1994).
    Thus, the State is not immune from application of
    laches
    in exercise of its
    governmental functions, at least not under “compelling circumstances.” However, we do not
    need to determine whether the circumstances here are compelling or not, because the Board
    concludes that even if they are, Bigelow has not made the necessary demonstration of
    prejudice.
    There are two principal elements of
    laches
    : lack of due diligence by the party asserting
    the claim and prejudice to the opposing party. Van Milligan, 158 Ill.2d at 89, 630 N.E.2d at
    833. To establish prejudice, Bigelow states that it has lost track of a number of potential
    witnesses. Bigelow also suggests that the memories of witnesses have likely faded with time,
    resulting in further prejudice.
    3
    The principal evidence in support of Bigelow’s claims is an affidavit of Perry Bigelow,
    president of Bigelow. (Bigelow also submitted an affidavit of Michael Quinn, attorney for
    Bigelow, establishing the dates of various enforcement conferences and settlement offers.) In
    his affidavit, Mr. Bigelow identifies 17 people who may have information regarding events
    and circumstances relating to the violations alleged in the complaint filed by the Attorney
    General. Mr. Bigelow states that he “is no longer aware of the location and employment of all
    of the listed individuals,” and that Bigelow has therefore been prejudiced by the Attorney
    General’s delay in filing this case.
    The Board finds that Mr. Bigelow’s statements do not establish prejudice to Bigelow.
    The fact that Mr. Bigelow is not aware of the location or employment of potential witnesses
    does not necessarily mean that those witnesses are unavailable or could not be located with a
    reasonable investigation. Since there is no other evidence of prejudice, the Board concludes
    that this action is not barred under the doctrine of
    laches
    . In making this ruling, the Board is
    not ruling on whether the State exercised due diligence in its prosecution of this case. The
    Board further is not ruling on whether, assuming lack of diligence and prejudice were
    established, the circumstances of this case are sufficiently compelling to justify invoking the
    doctrine against the State in the performance of its governmental functions.
    For the foregoing reasons, Bigelow’s “Motion to Dismiss” is denied.
    IT IS SO ORDERED.
    Board Member K.M. Hennessey abstained.
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
    the above order was adopted on the 8th day of January 1998, by a vote of 5-0.
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

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