Illinois Pollution Control Board Holds That Section 13-205 Statute of Limitations Does Not Apply to Section 31 Enforcement Actions Brought Before It.

Recently the Illinois Pollution Control Board (“Board”) decided that the 5-year statute of limitations under Section 13-205 of the IL Code of Civil Procedure did not apply to enforcement actions brought in front of the Board. In People of the State of Illinois v. Petco Petroleum Corporation, the State brought an enforcement action against Petco in 2013 with 61 counts alleging releases from oil extraction wells. In 2022, the State filed an Amended Complaint adding Counts 62-73 for alleged violations from 2013 and 2014. Petco moved to dismiss the new counts because they were outside the 5-year statute of limitations under Section 13-205 of the IL Code of Civ. Procedure.

The Board denied the motion to dismiss. People of the State of Illinois v. Petco, PCB13-72 (Aug. 22, 2024). The Board acknowledged that when it had previously considered Section 13-205, it had not decided the threshold question of whether a Section 31 enforcement action under the Illinois Environmental Protection Act (“Act”) was a “civil action” subject to Section 13-205. Instead, it had stated that if Section 13-205 applied, the section did not bar the complaint for reasons in that specific case. Here, the Board held that “[r]egardless of whether it is by the Attorney General on behalf of the People or by a private citizen, an enforcement action brought under Section 31 of the Act before the Board is not a ‘civil action’ within the meaning of Section 13-205’s catch-all text, ‘and all civil actions not otherwise provided for.’” Id, slip op., p. 4 citing 735 ILCS 5/13-205 (2022) (emphasis in original). Instead, a complaint with the Board initiates an administrative proceeding. Id.

The Board continued:

The Board finds that in this instance it is sufficient to find that the People’s Amended Complaint is not a “civil action” subject to the catch-all statute of limitations in Section 13-205. Filing a complaint with the Board pursuant to Section 31 initiates an administrative proceeding, not a civil action, which is brought in court.  Therefore, the Board finds that the catch-all text of Section 13-205 that applies to “civil actions” does not apply to this action.

Because an enforcement action brought before the Board under Section 31 of the Environmental Protection Act is not a “civil action” for purposes of Section 13-205 of the Code of Civil Procedure, the Board finds that the additional counts of the People’s Amended Complaint are not a “civil action” barred by Section 13-205’s catch-all statute of limitations.  Accordingly, the Board denies Petco’s Motion to Dismiss.

Id, slip op., p. 5. Click here to read the Board’s decision.

Petco filed a motion to reconsider stating that because the Board and Courts have concurrent jurisdiction to preside over enforcement actions, the enforcement actions are “civil actions.” Petco also argued that the decision allows the government and private entities to circumvent statute of limitations by filing with the Board, undermines clarity for defendants on statute of limitations and fundamental legal protection of statute of limitations. The Board denied the motion finding that Petco did not make any new arguments or state new facts requiring the Board to reconsider.

On December 19, 2024, Petco filed a motion for certification of the question for interlocutory appeal. The question of law to certify is “whether the five-year statute of limitations in 735 ILCS 5/13-205, which applies to ‘all civil actions not otherwise provided for,’ applies to civil enforcement actions filed before the Board pursuant to Section 5/31(d)(1) of the Act, 415 ILCS 5/31(d)(1).” The State has 14 days to respond.