ILLINOIS POLLUTION CONTROL BOARD

September 7,

1978

ENVIRONMENTAL PROTECTION AGENCY,

)

)

Complainant,

)

v.

)

PCB 78—132

)

VILLAGE

OF

MILLSTADT

AND

TESTING,

ANALYSIS,

AND

CONTROL,

INC.,

)

)

Respondents.

ORDER OF

THE

BOARD

(by

Mr.

Goodman):

On July

3,

1978,

Respondent Testing, Analysis, and Control,

Inc.,

(TAC)

filed

a Motion to Dismiss for Want of Jurisdiction.

On July 20,

1978,

the Board ordered the parties to submit briefs

on the issue raised in the Motion to Dismiss.

TAC filed its

brief on August 21, and the Environmental Protection Agency

(Agency)

filed its brief on September 1, 1978.

The Complaint in this matter alleges against TAC that TAC

contracted with the City of Millstadt for operation and mainten-

ance of a municipal wastewater treatment facility and caused or

allowed violations of the Water Regulations and the Environmental

Protection Act

(Act).

TAC alleges in its Motion to Dismiss that

the Board lacks jurisdiction over TAC in this matter because the

complaint failed to comply with Section 31(a)

of the Act in that

it did not and could not state the manner in which TAC violated

any environmental provision.

More precisely, TAC alleges that

accepting jurisdiction in this matter would require the Board to

determine

third

party

contract

rights

and

that

such

determination

is beyond the Board’s statutory authority.

The Board finds that it does have jurisdiction over TAC

in this matter.

The Act prohibits any person

(including

•

corporations)

from causing or allowing a violation of the

regulations, regardless of whether such violation was caused

or allowed as a result of a cont::actual arrangement.

(See

Environmental Protection Agency v. James McHugh Construction

Co., et al., PCB 71-291.)

The Board agrees that determination

31—391

---

—2—

of third party contract rights

is the function of a court and

not this Board.

The only question before the Board

i.s whether

respondents did in fact cause or allow pollution,

and

that

question must be resolved based upon evidence developed in the

record.

The Complaint before us alleges a cause of action

against TAC over which we have jurisdiction under the Act.

Whether indeed TAC did exercise such control as to cause or

allow pollution must be resolved based on the record.

The Motion to Dismiss is hereby denied.

IT

IS

SO

ORDERED.

I,

Christan L. Moffett, Clerk of the Illinois Pollution

Control Board,

hereby c rtify the above Order was adopted on

the

_______

day ~

1978 by a vote of

~jc~

Illinois Pollution

erk

Board

31—392