CLERK’S OFFICE
    BEFORE THE ILLiNOIS POLLUTION CONTROL BOARD
    JUN
    232004
    STATE OF ILLINOIS
    ~
    Control Board
    DANIEL J.
    BEERS,
    )
    )
    Complainant,
    )
    )
    vs.
    )
    PCB No. 2004-204
    )
    DAVE CALHOUN,
    )
    )
    Respondent.
    )
    ‘MOTION TO DISMISS
    FORMAL
    COMPLAINT AS
    FRIVOLOUS
    Now comes the Respondent, DAVE
    CALHOUN,
    by his attorneys, CASSIDY &
    MUELLER, and for his motion to dismiss the formal complaint as frivolous states as follows:
    1.
    The complainant has filed his formal complaint alleging noise pollution.
    2.
    The complainant specifically alleges in the formal complaint,
    at paragraph
    5,
    that
    the respondent is in violation of Sections 23
    and 24 of the Environmental Protection Act and
    Section 900.102 ofthe Regulations.
    3.
    “Frivolous”
    means that the formal complaint
    fails to state a cause ofaction upon
    which the Board can grant belief
    (35
    Ill.Adm.Code 101.202).
    4.
    The formal complaint fails to state a cause ofaction upon which the Board can
    grant relief Specifically, the complainant alleges violations of Section 24 ofthe Illinois
    Environmental Protection Act, which provides that no person shall emit beyond the
    boundaries
    ofhis property any noise that
    unreasonably
    interferes with the enjoyment oflife and Section
    900.102 ofthe Board’s Rules and Regulations provides that no person shall cause the emission of
    sound beyond boundaries ofhis property “so as to cause noise pollution in Illinois, or so as to
    violate any provisions of this chapter.”
    (35
    I1l.Adm.Code 900.102).
    5.
    Noise pollution is
    defined as “the emission ofsound that
    unreasonably
    interferes
    with the enjoyment of life.”
    (35
    I1l.Adm.Code 900.101). To
    constitute noise pollution, and to
    state a cause ofaction for which the Board can grant relief, the petitioner must specifically allege
    violations ofspecified rules
    and regulations to show any noise emitted from the respondent’s
    property “unreasonably”
    interferes with enjoyment oflife.
    6.
    Section 25 ofthe Illinois Environmental Safety Act specifically provides that the
    Board may adopt rules and regulations prescribing the limitations on noise emission beyond the
    boundaries ofthe property ofany person. Consistent with that regulatory authority,
    the Board has
    enacted Part 901
    relating to sound emission standards and limitations for property line-noise-
    sources as it would specifically relate to Class A,
    B and C land.
    7.
    The complainant has failed to
    allege any specific violations ofSection
    901 ofthe
    Board’s Rules
    and Regulations nor has he alleged the proper classification of land from which
    the noise is being emitted and the proper classification ofland to which the noise is being
    received.
    8.
    Pursuant to Section
    3 1(a) ofthe Act, the burden ofproof is on the complainant to
    show the respondent has caused noise pollution and absent specific allegations as to the proper
    classification ofland involved and violations ofthe sound emission standards
    and limitations for
    property line-noise-sources, he has failed to state a cause ofaction and the formal complaint
    is
    deemed “frivolous” and should be dismissed.
    WHEREFORE, the Respondent, DAVE CALHOUN, by his attorneys, CASSIDY &
    MUELLER,
    prays that the formal complaint be dismissed as frivolous due to
    its failure to
    state a
    cause ofaction.
    -2-
    CASSIDY & MUELLER
    CASSIDY &
    MUELLER
    323 Commerce Bank Building
    416 Main Street
    Peoria, Illinois 61602
    Telephone:
    309/676-0591
    PROOF OF SERVICE
    The undersigned certifies that on _________,2004
    a copy ofthe
    foregoing document was served upon all
    counsel ofrecord at their
    respective addresses
    Depositin the U.S. Mail
    —
    Hand Delivery
    By:
    DA
    -3-

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