ILLINOIS POLLUTION CONTROL

BOARD

September

28, 1989

ANTHONY KOCHANSKI,

Complainant,

v.

)

PCB 88—16

)

(Enforcement)

HINSDALE GOLF CLUB,

)

Respondent.

ORDER OF THE BOARD

(by J. Marlin):

On August

16, 1989,

the complainant filed

a Motion for

Reconsideration requesting that the Board reconsider

its July 13,

1989 decision in this matter.

The respondent

filed a response to

this motion on August

22, 1989.

The complainant’s motion

is

granted to the extent that the Board will reconsider

its July

13th decision.

The respondent’s request to strike certain documents

attached to complainant’s motion and those portions of the motion

which present information not previously admitted into the record

of this proceeding

is granted insofar as the Board has only

considered information or arguments based on information already

contained in the record.

New information presented by the

complainant was not considered.

However,

even

if such

information were considered,

the outcome of today’s Order would

not change.

Essentially,

the complainant bases

its motion on two

points.

First,

the complainant argues that the Board’s

evaluation of the evidence presented with respect

to the alleged

violation of Section 900.102 was contrary

to the intent and

purpose of

the Environmental Protection Act

(Act).

The

complainant also states that the Board’s consideration of the

factors enunciated by Section 33(c)

of the Act was similarly

improper.

The Board

is not persuaded by the complainant’s arguments

that

it has acted

in contravention

to the requirements,

or

intent,

of the Act.

Therefore,

the Board will not reverse its

determination concerning Section 900.102.

Secondly,

the complainant contends that

it was improper

for

the Board

to conclude that Leq weighting must be used for data

which

is submitted for the purposes

of showing

a violation of the

impulsive sound standards of Section 901.104.

In particular,

the

complainant states that the imposition of an Leq weighting upon

impulsive sound measurements

is inconsistent with standards for

sound measurements as adopted by the American National Standards

Institute

(ANSI).

---

2

The complainant’s reasoning is as follows.

The Board relied

on Section 900.103(b)

to apply the Leq requirement to the

impulsive sound standards of 901.104.

Section 900.103 also

refers to certain ANSI

standards.

The complainant cites to ANSI

standards for the proposition that an Leq weighting should not be

used for impulsive sound measurements.

Therefore, according to

the complainant, Section 900.103

if applied to Section 901.104

is

internally inconsistent.

If, as alleged,

the Board’s rules were internally

inconsistent, an ambiguity

in the meaning of the rules would

exist.

Any such ambiguity ought

to be addressed,

by way of

interpretation, when those rules are applied to the facts of a

particular case.

However,

that is not the situation at hand.

The words of Section 900.103 are clear, unambiguous and reflect

the Board’s intention that Section 900.103 be applied to Section

901.104.

See In re:

General Motors Corporation Proposed

Amendments

to 35

Ill. Mm. Code 900.103 and 901.104, R83—7,

75

PCB 106,

122

(

January 22, 1987).

Some of the ANSI standards cited by the complainant

in his

motion are not the same as those cited within the Board’s

regulation itself.

The Board

is not persuaded that the ANSI

standards expressly referred to

in the regulations directly

conflict with the Leq requirement.

Therefore,

there is not an

internal inconsistency

in the Board’s rules and hence, no

ambiguity which needs

a clarifying

interpretation.

The Board

is not persuaded by the complainant’s

presentation, and the Board will not reverse its determinations

concerning alleged violations of Section 901.104.

In

its Opinion in R83—7,

the Board explained why

it rejected

a proposal which would have allowed procedures,

other than Leq

weighting as an alternative method for sound level

measurements.

The Board found,

in part:

Leq

is

the

generally

accepted

best

measurement

of

community

response

at

present.

If

future

developments

and/or

circumstances

change

this

situation,

such

a

change

would

require

a

full

rulemaking

proceeding,

since

the

change

would

be

of

general applicability.

(Id. at

123).

Consequently,

it

is clear that absent any regulatory change

Section 900.103 dictates the Leq method of sound measurement for

Section 901.104.

Moreover,

if the complainant

is arguing,

through the

presentation of

these ANSI standards,

that the requirements of

103--526

---

3

Section 900.103(b) are wrong or

invalid,

the outcome of this case

does not change.

The validity of a regulation may not be

challenged

in an enforcement proceeding.

Section

29(b) of the

Act.

Also,

the Board may only amend its regulations in a

rulemaking proceeding which complies with the promulgation

requirements of the Act.

Obviously, the instant proceeding is an

enforcement action, not a rulemaking.

In conclusion, the Board’s decision of July 13,

1989 is re-

affirmed.

IT

IS SO ORDERED.

Board members J.D. Dumelle and M. Nardulli dissented.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control

Board,

hereby certify that the above Order was adopted on

the cday

of

1

~

~

,

1989, by a vote

of

______________

~2.

Dorothy ~/Gunn,

Clerk

Illinois LPollution Control Board

1(13-527