~SOFF1CE

MAY

U

42004

BEFORE

TIlE

ILLINOIS POLLUTION CONTROL BOAI~,ATE

OF

ILLiNOIS

POlIIJt!Ofl

Control 8oard

BARBARA

STUARTandRQNALD STUARt

)

)

Complainants.

)

VS.

)

No.

PCB 02-164

)

Citizen Enforcement

FRANKLIN

FISHER

and

PHYLLIS FISHER,

)

)

Respondents.

)

)

NOTICE OF FILING

TO;

Dorothy M.

Gunn, Suite

11-500, 100

W. Randolph

St., Chicago,

IL 60601

Bradley P. Halloran, Suite

11~500,100

W. Randolph St., Chicago, IL 60601

David G. Harding, Attorney at

Law,

100 N. LaSalle St.,

Suite 1107, Chicago, IL 60602-38030

Barbara & Ronald

Stuart,

213

K

CorningRoad, Beecher, IL 60401

PLEASE

TAKE

NOTICE

that

I

have,

on May~2004~filed with the Office

of the Clerk

of the

Pollution Control

Board the

County

of Will’s

Amicus

Curiae

Brief,

a

copy of which is

herewith served upon you.

~

ALf~ç~~

BobbiN. Petrungaro. Assistant State’s Attorney

OFFICE OF

THE

STATE’S

ATTORNEY

Will

County,

Illinois

Jeff Thmczak, State

‘s Attorney

121 N. Chicago St

Joliet,

IL

60432

Telephone:

815-727-8872

PROOF OF

SERVICE

The ur~dersigned

certifies that a copy ofthis instrument

and any

attachmentsthereto were served

on the above listed parties ofrecord

in the above cap~oned

cause by enclosing the same in an

envelope

parties at

their

address as disclosed by

the

pleadings of record herein, with postage fully prepaid,

and

by

depositing said envelope in a U.S. Post Office Mail Box in Joliet, Illinois, on the ~day

ofMay, 2004.

1-

/

~

Subscribed

and sworn to before me

•

~dayofMay,2004.

ô

Notary Public

U

.X

-

I

U

~

~

•

.1

---

CLERK’S OFFICE

MAY 042004

STATE OF ILLINOIS

Pollution

Control Board

Jeff Tom

czak, State’s Attorney

OFFICE

OF

THE

STATE’S ATTORNEY

WILL

COuNTY,

ILLINOIS

121

N.

Chicago

Street,

Joliet, Illinois

60432

815/727-8872

Fax:

815/727-6085

E-mail:

Wi11CtySAO@aol.corn

http://members. aol. com/willclysao

FAX TRANSMLTTAL

DATE:

5/04/04

TIME:

~

~

TO:

Ill. Pollution Control Board

FAX:

3l2-814~3669

FROM:

Bobbi

Petrungaro

TOTAL NUMBER OF PAGES, INCLUDING COVER SHEET:

8

TifiS

COMNTJNTCATION IS

INTENDED

FOR

TIlE

CONFIDENTIAL

USE

OF

TilE

ADDRESSEE

OIN1Y.

IN

TilE EVENTTHAT TEllS

COMMUNICATION IS REAl) BY

ANYONE OTHER THANTHE

ADDRESSEE,

ANY USE

OF

TIlE

INFORMATION

HEREIN

IS

STRICTLY PROHIBITED

IF

YOU

HAVE

RECEIVED

THIS

TELECOPY

IN ERROR,

PLEASE

IMMEDIATELY NOTIFY US

BY

TELEPHONE TO

ARRA~CE

FOR

RETURN

OF THE

ORIGINAL DOCUMENTS.

INITIALS

OF PERSON TRANSMITTING DATA~dw

---

CEiVE~

CLERK’S OFFICE

BEFORE

THE ILLLNOIS POLLUTION

CONTROL

BOARD

MAY

1142004

STATE OF ILLlNO~S

FoIlut~onControl

Board

BARBARA

STUART and

)

RONALD STUART,

)

)

Complainants,

)

)

vs.

)

No.

PCB 02-164

)

Citizen Enforcement

FRANKLIN FISHER,

)

)

Respondent,

)

Arnicus Curiae Brief

of County Of Will

NOW COMES the

County of Will, and for its

arnicus

curiae brief

states as

follows:

The

County

of

Will

enacted ordinances with provisions similar to

those contained

within

the

illinois Environmental Protection Act relative to

its noise ordinance and

vibration ordinance.

The

County of Will

has determined that such ordinances are

necessary

and

proper to protect the health and safety of the residents, as well as to protect

their property values.

Generally, the County’s nuisance ordinance is to assistthe public

welfare of the people of this county. (A copy of the Noise and Vibration Ordinances is

attached hereto as Exhibit A.)

Since 2001, the Will

County Land Use Department has received numerous

complaints relative to the Respondent’s use ofpropane cannons.

Specifically, the

Complainants have repeatedly noted that the usc of these propane cannons

disturbs the

peace of their home, their pets, and their

childrea. The

Will

County Sheriffs Department

did take readings of the propane cannons in the summer of 2002.

Although the noise and

vibration levels of the propane

cannons did not register high enough to violate the

---

technical

provisions

of the County ordinances,

it

is the

position of the County of Will

that

these

propane

cannons violate the spirit of the ordinance.

It

is

further the

position ofthe

County

ofWill that these devices have

not been proven to be effective arid in fact, that

these propane cannons

are anuisance to the health,

safety and

public

welfare

of the

people of this County.

WHEREFORE, the County of Will respectfully requests that this Board find in

favor ofthe

Complainant and against the

Respondent.

Respectfully

submitted,

JeffTomezak

•

Will

County

State’s Attorney

By:

Bobbi N.

Petrungaro

121 N. Chicago

St.

Joliet. illinois

60432

(815)727-8872

---

Public

Nttisanc-~

31

constitute a public nuisance,

or

in

such a manner that

the

litter

may be

blown

or

otherwise

carried

by the

narural

elements onto the

property

of another

person.

(Res. 92-248.

passed

1l-19-92~Am. Res.

99-210,

passed

5-20-99)

93.059

ABANDONMENT

OF MOTOR

VEHJ

CLE;

PRESIJMYTJON.

No person shall abandot

a motor vehicle on

any

highway or

any

public property of

which he

or she is

not

the

owner

or

tenarn

in

lawful

possession

in

unincorporated

areas

of the county

-

The

person

to

whom the certificate of

title

to

the vehicle last was

issued by

the Secretary of State is presumed to be the

person

to

have

abandoned

the

vehicle,

but

such

presumption

may be

rebutted

(Res. 92~248,

passed

11-19-92; Am, Res.

99-210,

passed

5-20-99)

§

93.060

VIOLATION;

PENALTY.

Persons

who violate

any of

§~

93.056

through

93.059

are subject to penalties

set out

in this

section,

(A)

Any

person

convicted

of

a

violation

of

§~93.056

through

93.059

is

guilty

of

a

Class

B

misdemeanor.

A

second

conviction

for

art

offense

committed

after

the

first

conviction

is

a

Class

A

misdemeanor.

A

third

or

subsequent

violation

committed

after

a

~econd

conviction

is

a

Class

4

felony.

(B)

In

addition

to

any

fine

imposed

under this

section, the court rriay

order that

the person convicted

of such a violation

remove

and properly

dispose

of

the

litter,

may

employ

special

bailiffs

to

supervise

such removal

arid

disposal,

and

may tax

the costs

of

such

supervision

as

costs

against

the

person

so

convicted.

(C)

The

penalties prescribed

in this

section are

in

addition

to,

and

riot

in

lieu

of,

any

p~nalties,

rights,

remedies,

duties

or

liabilities

otherwise

imposed

or conferred

by

law.

(Res.

99-2 10,

passed

5-20-99)

§ 93.070

AUTHORITY.

I

The

provisions

of

this

subchapter

a~reeriact&J

pursuant

to authority given by ILCS Cb. 720, Act 5,

§

47-5.

(Res

94-229,

passed

1-19-95;

Am.

‘Res.

99-210,

passed 5.20-99)

§ 93.071

PURPOSE.

•The

provisions of

this

subchapter are enacted

to

define and abate noise

as a public nuisance.

Noise

as

defined

herein

as

a public nuisance

is

dttrimenral

to

safety health and public

welfare of

the

people

of this

county and

should b~enjoined as necessary to protect

the public.

(Res.

94-229,

passed

1-19-95;

Ar~.Res.

99-210,

passed

5-20-99)

§

93.072

PUTBLIC NUISANCE.

(A)

It

is hereby

declared

that

any

person

or

business entity

who

engages

in any

act

which

causes

to be

emitted

a

loud,

unreasonable

or

unnecessary

noise

which

injures

or

endanger~or

diminishes

the

health, peace, safety

or welfare of others is a nuisance

for which

legal

remedies

shall

be

available.

(B)

It

is

further

declared

that

no

person

or

business

entity

shall

cause or

allow

the

errüssion

of

soui~id

beyond the boundaries of his or

her property as

prohibited

by the provisions

of

35

Ill.

Admin.

Code,

Ch.

1

§

900.1

et

seq,

as

presently

enacted

or

subsequently

amended,

shall

be

deemed

a

public

nuisance

from

which

legal

remedies

shall

be

available.

(Res.

94-229,

passed

1-19-95;

Am.

Res.

99-210,

passed 5-20-99)

Penalty,

see

§

93.999

NOISE

S

2000

s-is

§

93.073

DEFINITIONS.

The

definitions

of

35

III.

Admin.

Code,

titled

“Environmental

Protection,”

subtitle

H,

titled

EXhIBIT

A

---

32

Will

County

-

General Regulations

Noise,” Chapter

1, titled

“Pollution Control

Boatd,”

as presently promulgated or hereinafter promulgated,

are

adopted’ and

incorporated

as

if

fully

rewritten

herein.

(Res.

94-229,

passed

1-19-95;

Am.

Res.

99-210,

passed

5-20-99)

§

93.O’74

MEASUREMENT

PROCEDURES.

The

rne.asurernenr

procedures

of 35

111.

Admin.

Code, tiiled

‘Environmental Protection,” subtitle H,

titled

~Noise,

-

chapter

1.

titled

~Pollution

Control

hoard,

Part

901,

titled

‘Sound Emission

Standards

and Limitations forProperty Line-Noise-Sources,” as

presently promulgated or hereinafterpromulgated are

adopted and

incorporated as if fully rewritten herein.

(Res.

94-229,

passed

1-19-95;

Am.

Res.

99-210,

passed

5-20-99)

§

93.075

ENFORCEMENT.

The

responsibility

for the enforcement

of the

provisions

of this

subchapter

shall

be

with

the

Will

County

Sheriff’s Police.

The. Will County

Sheriff

shall have

the responsibility

to enforce division (A) of

§

93.072. The enforcement of division (B) of the

section shall be with either

the

Will County Sheriff or

the

Administrator

of the

Building

arid

Zoning

Code

who

is

hereby

designated

as

the

enforcing

officer.

Any

employee

of

the

departments

shall

have

the

authority for enforcement authorized by

the Sheriff or

the

Administrator.

(Res.

94-229,

passed

1-19-95;

Am.

Res.

99-210,

passed

5-20-99)

§

93.076

REMEDIES.

Any person owning,

lea.sing

or possessing of the

subject

property on

which

a

nuisance,

as

defined

by

this subchapter,

exists

is

subject

as

follows:

(A)

May be issued

a

non-traffic

complaint

ticket

by

an

authorized

person

in

his

or

her

official

capacity.

Each

day

the

violation

occurs

is

to

be

considered

a

separate violation.

(B)

May

be

subject

cc

injunctive

relief brought

by Will

Counry through

its

proper

representative and

be

subject

to

the

~s~essments

of

costs

and

fees

associated

with such

litigation.

(Res.

99-210, passed

5-20-99)

§

93.077

POWER AND DUTIES

OF THE STATE

ATTORNEY’S

CYFFICE.

-

The

State

Attorney’s

Office

shall

act

as

an

attorney

for

the

county

and

shall

have

the

followiiig

authority:

(A)

Prosecute

any violations

of

this

subchapter

in the

circuit court of

the county.

(B)

Seek

injunctive

relief

against

any

pel:son

owning,

leasing

or possessing

subject property-in the

circuit court

of the

county.

(Res.

94-229,

passed

1-19-95;

Ann.

Res.

99-210,

passed

5-20-99)

§

93.090

AUTHORITY.

The

provisions

of

this

subchapter

are

enacted

pursuant to

authority

given

by

ILCS

Ch.

720

Act

5,

§

47-5.

(Res,

99-210,

~assed

5-20-99)

§

91.091

PURPOSE.

The provisions

of

this

subchapter

are enacted

to

define

and

abate

excessive

vibratjon?

as

a

public

nuisance.

Excessive vibrations

as

defined herein

are

a

public

nuisance

arid

are

detrimental

to

the

safety,

health and public

welfare

of the people of the

county

and

should

be

enjoined

as

necessary

to

protect

the

public.

(Res

94-229,

passed

1-19-95;

Am

-

Res.

99-210,

passed

5-20-99)

VIBRATION

o

.

.

2000

S-18

---

§

93.092

PUBLiC NUISANCE.

It

is

declared

that

no

person

or

business

entity

shall

cause

or

allow

the

emission

of

excessive

vibrations

beyond

the boundaries

of his property

as

prohibited

by the

provisions

of this subchapter.

(Res.

94-229.

passed

1-19-95;

Am.

Res.

99-210,

passed 5-20-99)

-

§

93.093

DEFINITIONS.

For

the

purpose

of this

chapter,

the

following

definitions

shall

apply

unless

the

-

context

clearly

indicates

or requires

a different

meaning.

AMPLITUDE.

The

maximum

displacement

of

the

earth from the noi-rnal rest position. Displacement

is

usually reported

as

inches

or miles.

DJSCKETE IMPULSES.

A ground transmitted

vibration

stemniing

from

a

source

where

specific

pulses

do

not

exceed

60

per

minute

(or

one

per

second).

FREQUENCY.

The

number

of

times

that

a

displacement completely repeats

itself

itt

one second

of time:

Frequency

may

be

designated

in

cycles

per

second

(cps)

or

Hertz.

IMPACT.

An

earthborn

vibration

generally

produced

by

two

or more

objects

striking

each

other

so

as

to cause

separate

and

distinct

pulses.

NIGHTTIME 1-JOURS.

The

hours

ci

10:00

p.m.

to 7:00 am.

local

time.

PARTICLE

VELOCITY.

A

characteristic

of

vibration

that

depends

on

bath

displacement

and

frequency.

if

not

directly

measured,

it

can

be

coniipured

by

multiplying

the

frequency

by

the

amplitude times the factor

6.28.

The particle velocity

will

be

in

inches

per

second,

when

the

frequency

is

expres~edin cycles per second

and

the

arnplirude

in

inches.

SEJSMOGRAJ’H.

An

instrument

which

measures

vibration

characteristics

simultaneously

in

threemuru.aily p~r~ndicular

planes. The seismograph

may measure displacement

and

frequency,

particle

velocity,

or acceleration.

STEADY

STATE.

A

vibration

which

is

continuous,

as

from

a

fan compressor

or

motor.

VIBRAtION.

A

reciprocating

motion

transmitted through

the

earth, both in

horizontal

arid

vertical pla±ies.

-

(Res.

94-229,

passed

1-19-95;

Am.

Res.

99-210,

passed

5-20-99)

§ 93,094

INSTRUMENTATION.

-

Ground-transmitted

vibration

shall

be

measured

with

a

seismograph

Or

complement

of

insth.iments

capable of recording

vibration displacement,

particle

velocity,

or

acceleration and frequency simultaneously

in

three mutual

perpendicular directions,

(Res.

94-229,

passed

1-19-95;

Ann.

Res.

99-210,

passed 5~20-99)

I

§

93.095

MAXIMUM

PERMITTED

VIBRATION

LEVELS.

-

(A)

Table

1

designates

the

applicable

lines

of

Table 2 that apply on

or

beyond

adjacent

lot

lines

wIthin the zone, and on or beyond appropriate

district

boundaries. Vibration

shall not

exceed

the iriaxirnu.rn

permitted

particle velocities

in

Table 2.

Where

more

than

one

set

of

vibration

levels

apply,

the

most

restrictive

shall

govern.

Readings

may

be

made

at

points of ma.xirnurn vibration intensity.

Districts shall

be defined as

in the Will

County Zoning Ordinance as

it

is

presently

enacted

or

hereinafter

modified

as

follows:

-

R -

ResiderniaJ

E1-2,

R1-6

C

-

Commercial C1-6

I

-

Industrial

11-3

—ç

•

1:

Public Nuisances

32A

2000

S-18

---

32B

Wi

Cotmty

-

General Regulations

TABLE

1

APFLICA.BLE

LINES

OF

TABLE

2

x

1-I

Z

1-2,

3

TABLE

1

STEADY-STATE

VIBRATION

LIMITS

Peak Particle

V~lodty

(inches

per second)

V1~b

ration

Linus

I

Daytime

Nighttime

X

0.03

0.01

Y

0.06

0.06

Z

0.26

0.20

(C)

The

maximum

particle

velocity

shall

be

in

the

maximum

vector

sum

of

three

mutually

perpendicular

componelits

recorded

simultaneously.

Particle velocity may also be

expressed as 6.28 times

the

displacement

in

inches

mul~ip1ied by

the

frequency

itt

Iertz

(cycles

per second).

(D)

For

purposes

of

this

section,

steady-state

vibrations

are

vibrations

which

a~e continuous.

Vibrations

in’ discrete impulses more frequent than 60

per

minute shall be considered

impact vibrations.

(Res.

94-229,

passed

1-19-95;

Am.

Res.

99-210,

passed

5-20-99)

-

§ 93.096

ENFORCEMENT.

The

enforcement

of

these

provisions

shall

be

with

either

the

Will

County

Sheriff

or

the

Administrator of the Building and Zoning

Code

who

• is

hereby

designated

as

the

enforcing

officer.

Any

employee of the

deparmient shall

have

the authority

for

enforcement

if

authorized

by

the

Sheriff

or

Administrator.

(Res. 99-210,

passed

5-20-99)

§ 93.097

REMEDIES.

-

Any person owning, leasing or

posse~sing

of the

subject

property

on

which a nuisance

as

defined

by

this

subchapter exists

is subject

as follows:

(B) May be, subject to injunctive

relief brought

by, the county

through

its proper representative and be

subject

to the assessments of costs

and fees

associated

with

the litigation.

(Res.

94-229,

passed

1-19-95;

Ann.

Res.

99-~10,

passed 5-20-99)

-

93.09~POWER AND

DUTiES

OF

THE STATE

AUORNEY~SOFFICE~

-

‘

*.

-

The

State

Attorney’s

Office

shall

act

as

an

attorney

for

the

county and

shall

have

the

follov~ing

authority:

(A)

Prosecute

any

viOlations of this

subchapter

in

the circuit

court

of the

county

-

(B)

Seek

injunctive

relief

against’

any

person

owning, leasing

or possessing

subject pçoperty in the

circuit

court of the county.

-

(Res

94-229.

passed

1-19-95;

Am.

Res.

99-210,

passed

.5-20-99)

§

93.999

PENALTY.

(A)

A.

violation

of

§

93.072

(A)

is

a

petty

offence

for

whkh the violator shall

pay a fine

of not

less

than

$25.00

nor

more

than

$100.00,

and

the

court costs

of prosecution.

(B)

A

violation

of

§

93.072

(B)

is

a

petty

offense

for

which the violator

shall pay a fine

of

not

less

thaii

$100.00

nor

more

than

S500.00,

arid

the

court costs

of prosecution.

(Res.

99-210, passed

5-20-99)

Er,

utting

to

From

Lot

Line

Adjacent

DIStrkI

Bvu.n4aries

R

C

1-1,

1-2,

3

(A)

May

be issued

a non-traffic

complaint

ticket

X

-

X

X

by

an

authorized

person

in.

his

or

her

official

X

Y

—

-

—

capacity.

Each

day

the

violation

occurs

is

to

be

X

Y

Z

—

considered a

separate

violation.

.

2000 S-18