ILLINOIS POLLUTION CONTROL BOARD
October 6, 1994
RODNEY B. NELSON, M.D.,
)
)
Petitioner,
)
v.
)
PCB 94—247
(Enforcement)
KANE
COUNTY FOREST PRESERVE,
)
BRADLEY SAUER, CHAIRMAN,
)
KANE COUNTY COUGARS
)
WILLIAM LARSEN, GENERAL MANAGER,
)
and KANE COUNTY BOARD,
)
WARREN KANNERER, CHAIRMAN,
)
)
Respondents.
ORDER OF THE BOARD (by R.C. Flemal):
This matter is before the Board on a complaint filed on
September 9, 1994 by Rodney B. Nelson III, M.D. The complaint
alleges that respondents have violated Title VI of the
Environmental Protection Act (415 ILCS 5 (1992)) by their use of
fireworks displays before, during and after Kane County Cougar
baseball games at Elf strom Stadium.
Section 103.124(a) of the Board’s procedural rules, which
implements Section 31(b) of the Environmental Protection Act (415
ILCS 5/31(b)), provides:
If a complaint is filed by a person other than the
Agency, the Clerk shall also send a copy to the Agency;
the Chairman shall place the matter on the Board agenda
for Board determination whether the complaint is
duplicitous or frivolous. If the Board rules that the
complaint is duplicitous or frivolous, it shall enter
an order setting forth its reasons for so ruling and
shall notify the parties of its decision. If the Board
rules that the complaint is not duplicitous or
frivolous, this does not preclude the filing of motions
regarding the insufficiency of the pleadings. 35 Iii.
Adlu. Code 103.124.
An action before the Board is duplicitous if the matter is
identical or substantially similar to one brought in another
forum. (See, Fore v. Midstate Kart Club (October 7, 1993) PCB 93-
171; Mandel v. KuliDaka PCB 92—33 (August 26, 1993); In re
Duplicitous or Frivolous Determination (June 8, 1989), RES 89-2,
100 PCB 53.) There is no evidence before the Board to indicate
this matter is identical or substantially similar to any matter
brought in another forum. At this time, therefore, the Board
finds that, pursuant to Section 103.124(a), the complaint is not
duplicitous.
2
An action before the Board is frivolous if it fails to state
a cause of action upon which relief can be granted by the Board.
(Citizens for a Better Environment v. Reynolds Metals Co., PCB
73-173, B PCB 46 (1973).) There is no evidence that the Board
cannot grant the relief requested with reference to Kane County
Forest Preserve, Bradley Sauer, Chairman and Kane County Cougars,
William Larsen, General Manager. At this time, therefore, the
Board finds that, pursuant to Section 103. 124 (a), the complaint
is not frivolous with regards to Kane County Forest Preserve,
Bradley Sauer, Chairman and Kane County Cougars, William Larsen,
General Manager.
With respect to the third named respondent, Kane County
Board, Warren Kammerer, Chairman (Kammerer), the Board observes
that petitioner has not listed Kainmerer in the caption of the
complaint as filed. However Kammerer is clearly named as a
respondent on page 2 of the complaint. In addition, the
Certificate of Service attached to the complaint indicates
Kammerer was served with process. For the purposes of
recognizing this involvement of Kammerer’s, the Board today
includes Kane County Board, Warren Kainmerer, Chairman, as a
respondent in the caption of this case.
However, the Board finds that the complaint is frivolous
concerning Kainmerer. Petitioner has failed to request or
describe any relief which the Board could grant with respect to
Kammerer. Accordingly, Kammerer is dismissed as a party to this
matter, and this matter shall proceed to hearing with only two
respondents, Kane County Forest Preserve, Bradley Sauer, Chairman
and Kane County Cougars, William Larsen, General Manager. The
caption hereafter shall so identify the parties.
The Board notes that petitioner has argued that the
complained of activity is not part of the “organized amateur or
professional sporting activity” exemption found at Section 25 of
the Environmental Protection Act.1 (415 ILCS 5/25 (1994).)
Section 25 of the Act places restriction on the Board’s ability
to hear noise violations proceedings involving certain sporting
activities:
No Board standards for monitoring noise or regulations
prescribing limitations on noise emissions shall apply
to any organized or amateur or professional sporting
1
This proceeding is distinguished from Anne Shepard, James
Verhein, and Jerold Leckman v. Northbrook Sports Club, and
Village of Hainesville, (January 20, 1994) PCB 94-2, where
petitioners did not argue the “organized amateur or professional
sporting activity” exemption in their original complaint.
3
activity except as otherwise provided for in this
Section. (415 ILCS 5/25 (1994))
No response has been filed by any of the respondents. The Board
makes no findings regarding this exemption at this time.
The hearing must be scheduled and completed in a timely
manner, consistent with Board practices. The Board will assign a
hearing officer to conduct hearings consistent with this order
and the Clerk of the Board shall promptly issue appropriate
directions to the assigned hearing officer consistent with this
order.
The assigned hearing officer shall inform the Clerk of the
Board of the time and location of the hearing at least 40 days in
advance of hearing so that public notice of hearing may be
published. After hearing, the hearing officer shall submit an
exhibit list, a statement regarding credibility of witnesses and
all actual exhibits to the Board within five days of the hearing.
The hearing officer and the parties are encouraged to expedite
this proceeding as much as possible.
IT IS SO ORDERED.
C. A. Manning and J. Theodore Meyer dissent.
I, Dorothy N. Gunn, Clerk of the Illinois Pollution Control
B9ard, hereby certify that the above order was adopted 9n the
~
day of
_________________,
1994, by a vote of
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/~~‘
Dorothy M.7unn, Clerk
Illinois ~Øllution Control Board