ILLINOIS POLLUTION CONTROL BOARD

May 21,

1992

RESIDENTS OF CEDARVILLE,

)

)

Complainant,

PCB 91—194

V.

)

(Enforcement)

)

VILLAGE OF CEDARVILLE,

)

)

Respondent.

ORDER OF THE BOARD

(by B.

Forcade):

This matter comes before the Board on a motion to dismiss

~filedon March 27,

1992, by the Village of Cedarv’ille (Village).

On April 23,

1992, the Board requested that the Village submit

copies of the releases referenced in the complaint and explain

the relevance of the releases.

The Village filed copies of the

releases with the Board on May

4,

1992.

The Residents of

Cedarville (Residents) did not file a response to the motion.

In its motion the Village argues that the Board should

dismiss this case because the Village is

in substantial

compliance with the Board’s, regulations and because the Board has

held that enforcement actions are inappropriate where there is

substantial compliance.

Specifically, the Village claims that it

has operated its sanitary sewer system for 15.5 years through

August

19,

1990, with violations on only three days, and notes

that this record constitutes a violation rate of

.05 percent and

a compliance rate of 99.95 percent.

A single day or incident of non-compliance with a Board

regulation constitutes a violation.

In High Lake Poultry Inc.

v.

Pollution Control Board,

(2nd Dist.

1975), 25 Ill.App.3d 956,

323

N.E.2d 612, substantial compliance was just one factor that the

court weighed in determining that

a penalty should not be

assessed.

However, despite a finding of substantial compliance

the court held that High Lake violated the Environmental

Protection Act.

High Lake Poultry Inc.

v. Pollution Control

Board, supra.

A claim of substantial compliance is a mitigating

circumstance to be considered in determining the penalty

(I1l.Rev.Stat.

1991 ch.

111 1/2,

par 1042(h)) and does not

prevent a finding of violation.

Considering the facts of this

case and the remedies sought in the complaint,

a claim of

substantial compliance does not present adequate grounds for

dismissal.

In its response to the Board order of April 23,

1992, the

Village stated that the releases may or may not be relevant to

133—511

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2

this proceeding.

The Village argues that the complaint indicates

that Residents are requesting that the Board award damages.

However, the Village believes that the Board does not have the

authority to assess.damages in an enforcement action.

The

Village states that the releases were referenced

in the motion to

address the issue of damages.

In the complaint,

the residents request two forms of

relief:

(1)

Order the Village to locate the problem

...

and take

whatever actions necessary to correct problem.

(2)

Order Village to assume full responsibility for sewage

back-ups to residents’ homes hooked up to Village sewer

system.

The Board does not read the Residents’ complaint as asking for

damages as a form of relief.

While the Board does not award

damages, the relief sought by the complaint

is within the

authority of the Board.

The releases relate to payment of damages arising from the

June 29,

1990,

incident.

A release from damages does not

prohibit the filing of a citizen complaint based on a statutory

violation.

The Board finds that the releases do not preclude the

Residents from bringing the present action.

Therefore, the Board

finds that the releases are not relevant to the Village’s motion

to dismiss.

Therefore, the Village’s motion to dismiss is denied.

IT IS SO ORDERED.

I, Dorothy H.

Gunn,

Clerk of the Illinois Pollution Control

Board, do hereby certify that the above order was adopted on the

~)J~

day of

~)

~

,

1992, by a vote of______

)2

~

Dorothy M.-/Gunn, Clerk

Illinois ~ollution Control Board

I 3 3——S