ILLINOIS POLLUTION CONTROL BOARD
August 22, 2002
HURLEY RULON, CAROL RULON,
FRANK EWEN, JANICE EWEN, JEROME
HAYN, BETTY HAYN, JOHN O.
SCHUMANN, ALICE SCHUMANN,
BRENDA NORD, CAROL NORD, APRIL
SWAN, ANTHONY SWAN, CAROL
ADKINS, PAUL ADKINS, and PAUL
NIEBRUEGGE,
Complainants,
v.
DOUBLE D GUN CLUB,
Respondent.
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PCB 03-7
(Citizens Enforcement - Noise)
ORDER OF THE BOARD (by W.A. Marovitz):
On July 17, 2002, complainants filed a complaint against the Double D Gun Club
(club). The complainant alleges that the respondent violated various noise and water pollution
prohibitions in Sections 23 and 24 of the Environmental Protection Act (Act) (415 ILCS 5/23
and 24 (2000)
amended by
P.A. 92-0574, eff. June 26, 2002), as well as the Resource
Conservation and Recovery Act (RCRA)(42 U.S.C. Sections 7002 and 7003), the Clean Water
Act (33 U.S. C. Section 1.2.2), and 740 ILCS 130/5(1) of the Premises Liability Act. The
complainants further allege that the respondent violated these provisions by operating a
sporting clay range that unreasonably interferes with the use and enjoyment of the
complainants’ property and health. The complaint concerns the respondent’s facility located in
Kampsville, Calhoun County.
On July 22, 2002, the respondent filed a motion to dismiss the complaint. Respondent
alleges the complaint is frivolous and fails to state a cause of action. Complainants did not file
a response to the motion.
For the reasons stated below, the Board finds the complaint is not duplicative, but is
frivolous. The Board therefore grants respondent’s motion to dismiss.
CITIZEN ENFORCEMENT ACTIONS
In addition to providing that the Illinois Attorney General and the State’s Attorneys may
file complaints with the Board, the Act authorizes
citizens
to bring enforcement actions before
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the Board, alleging violations of the Act or Board regulations. Section 31(d) of the Act
provides:
Any person may file with the Board a complaint, meeting the requirements of
subsection (c) of this Section, against any person allegedly violating this Act or
any rule or regulation thereunder . . . . *** Unless the Board determines that
such complaint is duplicative or frivolous, it shall schedule a hearing . . . . 415
ILCS 5/31(d) (2000)
amended by
P.A. 92-0574, eff. June 26, 2002.
1
Section 31(c), referred to in the quoted passage, in turn states that the complaint “shall specify
the provision of the Act or the rule or regulation . . . under which such person is said to be in
violation, and a statement of the manner in, and the extent to which such person is said to
violate the Act or such rule or regulation . . . .” 415 ILCS 5/31(c) (2000)
amended by
P.A.
92-0574, eff. June 26, 2002. The Board’s procedural rules codify the requirements for the
contents of a complaint, including the “dates, location, events, nature, extent, duration, and
strength of discharges or emissions and consequences alleged to constitute violations” and a
“concise statement of the relief that the complainant seeks.” 35 Ill. Adm. Code 103.204(c).
Within 30 days after being served with a complaint, a respondent may file a motion
with the Board to dismiss the complaint on the grounds that the complaint is frivolous or
duplicative. 35 Ill. Adm. Code 103.212(b). The Board’s procedural rules define “frivolous”
and “duplicative” as follows:
“Frivolous” means a request for relief that the Board does not have the authority
to grant, or a complaint that fails to state a cause of action upon which the
Board can grant relief.
“Duplicitous” or “Duplicative” means the matter is identical or substantially
similar to one brought before the Board or another forum. 35 Ill. Adm. Code
101.202.
RELEVANT PROVISIONS
Section 23 of the Act states:
The General Assembly finds that excessive noise endangers physical and
emotional health and well-being, interferes with legitimate business and
recreational activities, increases construction costs, depresses
property values,
1 Public Act 92-0574 amended Section 31(d) by substituting the word “duplicative” for
“duplicitous.” The Board and the courts had consistently interpreted “duplicitous” to mean
“duplicative.”
See
,
e.g.
, Winnetkans Interested in Protecting the Environment v. IPCB, 55 Ill.
App. 3d 475, 478, 370 N.E.2d 1176, 1179 (1st Dist. 1977); People v. State Oil Co., PCB 97-
103, slip op. at 3, n.2 (Aug. 19, 1999).
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offends the senses, creates public nuisances, and in other respects reduces the
quality of our environment. It is the purpose of this title to prevent noise which
creates a public nuisance. 415 ILCS 5/23 (2000)
amended by
P.A. 92-0574, eff.
June 26, 2002.
Section 24 of the Act states:
No person shall emit beyond the boundaries of his property an noise that
unreasonably interferes with the enjoyment of life or with any lawful business or
activity, so as to violate any regulation or standard adopted by the Board under
this Act. 415 ILCS 5/24 (2000)
amended by
P.A. 92-0574, eff. June 26, 2002.
Complaint
The complaint alleges
that respondent operates a shooting range less than 350 yards
from two of the complainants’ homes. Comp. at 4. The complaint alleges that noise and echo
from the shotguns can be heard four miles away. Comp. at 4. The complainants assert that
sometimes the noise from the range sounds like cannon shots and can be ear piercing. Comp.
at 4.
The complainants allege the activity occurs during the week from approximately 5 p.m.
to 8 p.m.. Comp. at 4. On weekends the noise begins at 8 a.m. and have continued until 9
p.m.. Comp. at 4.
The noise allegedly causes some of the complainants to leave their homes. Comp. at 6.
Complainants have experienced high blood pressure, hives, bleeding ulcers, pain associated
with fibromyalgia, headaches, heart and nerve problems. Comp. at 6. Complainants argue the
noise has unreasonably interfered with the use and enjoyment of their properties. Comp. at 6.
Complainants also state that the cattle pasture of complainant Hurley Rulon is adjacent to the
range. Comp. at 7. Complainants allege lead shot comes onto the property and goes into the
cattle’s water supply. Comp. at 7. Complainants are concerned that the lead will adversely
affect the water supply and the cattle. Comp. at 7.
Complainants request the Board order the Club to cease and desist from violating the
Act. Comp. at 6. Complainants also request the Board order the Club to stop the noise and
lead pollution and relocate the facility to a more suitable location. Comp. at 6
Motion to Dismiss
Respondent asserts that the complaint fails to allege violations of the Illinois
Administrative Code, and therefore the Board does not have the authority to grant the
requested relief. Mot. at 1. Although the complaint alleges violations of the Act, respondent
asserts the sections of the Act require that violations of the Code be alleged. Mot. at 1.
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Respondent further argues that the citations to alleged violations of RCRA are either
invalid or are to sections that have been repealed. Mot. at 1. Respondent asserts the citation
to the CWA is incomplete, and the Board does not have the authority to enforce the CWA,
because it is not part of the Act or Board regulations. Mot. at 1-2. Finally, respondent argues
that the allegation regarding the Premises Liability Act (740 ILCS 130/5(1) (2000)) is not a
Board regulation and the requested relief is beyond the Board’s authority.
Frivolous Determination
The Board dismisses complainants’ allegation that the Club violated Section 23 of the
Act. The Board has previously found that Section 23 only contains legislative objectives as
opposed to prohibitions on activities.
See
Barbara and Ronald Stuart v. Franklin Fisher, PCB
02-164 (May 16, 2002). An alleged violation of Section 23 is not a proper cause of action
upon which the Board can grant relief.
The Board also dismisses complainants’ claim that the Club violated Section 24 of the
Act. 415 ILCS 5/24 (2000)
amended by
P.A. 92-0574, eff. June 26, 2002. The appellate
court has previously stated that Section 24 is not a general statutory prohibition. Anne
Shepard, et al. v. PCB, Northbrook Sports Club, and the Village of Hainesville, 272 Ill. App.
3d at 768, 651 N.E.2d at 558 (2nd Dist. 1995)
.
Instead, Section 24 provides that no one may
emit noise "so as to violate any regulation or standard adopted by the Board."
Id.
Section 24
is not a stand-alone provision, but a violation of certain Board noise regulations could result in
a violation of Section 24. Anthony and Karen Roti et al., v. LTD Commodities, PCB 99-19
(Nov. 5, 1998). Because complainants did not allege violations of the Board’s noise
regulations, the allegation of violating Section 24 is not a proper cause of action upon which
the Board can grant relief. This finding does not preclude complainants from filing a new
complaint alleging violations of particular provisions of the Board’s noise regulations.
e.g.
Ila
M. Neathery and Denise C. Fleck v. Greg and Karen Bouillon d/b/a Thirsty’s, PCB 02-14
(Sept. 20, 2001).
The Board must also dismiss as frivolous complainants’ allegations regarding violations
of both RCRA and the CWA. Pursuant to Section 5(b) of the Act, the Board shall “determine,
define, and implement the environmental control standards applicable in the State of Illinois.”
415 ILCS 5/5(b) (2000)
amended by
P.A. 92-0574, eff. June 26, 2002. The Board’s authority
under the Act does not extend to allegations of violations of federal statutes. To the extent that
complainant seeks to allege water pollution violations, any proper complaint must allege
violations of the Act or the Board’s water rules.
Similarly, the Board dismisses as frivolous complainants’ allegation regarding the
Premises Liability Act. As the Board has previously stated, although the Premises Liability
Act addresses noise from firearm ranges, it is not an environmental control standard.
Michael D. Logsdon
et al.
v. South Fork Gun Club, PCB 00-177 (July 27, 2000)
.
Thus, the Board does not have the authority to review the Premises Liability Act. The alleged
violation of the Premises Liability Act is frivolous.
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Duplicative Determination
An action before the Board is duplicative (duplicitous) if the matter is identical
or substantially similar to one brought in another forum. Brandle v. Ropp, PCB 85-68
(June 13, 1985). The Board has not identified any other cases, identical or substantially
similar to this, pending in other forums. Therefore, based on the record before us, this
matter is not duplicative.
Conclusion
The Board grants the motion to dismiss, as the allegations in the complaint are
frivolous. Nothing in this order prohibits complainants from filing a new complaint that
properly alleges violations of the Act and Board regulations.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, certify that the Board adopted the above order on August
22, 2002, by a vote of 7-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control
Board
