ILLINOIS

POLLUTION

CONTROL

BOARD

Decenber

14,

1992

VILLAGE

OF

)IATTESON,

)

Coaplainant,

)

)

v.

)

P~B90—146

(Enforc.asnt)

WORLD

MUSIC

THEATRE,

)

JAM PRODUCTIONS,

LTD.

and

DISCOVERY SOUTH GROUP, LTD.,

Respondents.

ORDER

OF

THE

BOARD

(by

B.

Forcede):

This

aatter

cones

bet

or.

the Board on

a

aotion f

or

reconsideration

filed

on

Deceaber

4,

1992,

by respondent

(Theatre).

The Village

of

Matt.son

(llattssofl).

~ilsd

a

response

to

the

motion

on

Dscuber

9,

1992.

Theatre .a~s. -reconsideration

of

the

Board’s

November

19,

.1992

order

in ithid~th.

Board denied

Theatre’ s

motion

to

reset

the

date

for

the last

allowable

hearing.

In

addition

the

Board

ordered

that

all

hearing~in this

matter

be

completed

by

December 23,

1992.

Theatre

insists

that

it

is

evident

bov.:tbs*oard

will

rule

on

the

merits

of

this

case.

Theatre

also

~b.11.ws

that

no

matter

what

issue

cones

before

it,

the

Board will

.

rul.aqainst

Theatre

regardless

of

the

evidence,

the

law

or

the aqizities.

Th.atr.

argues

that

this

has

been

true

for

virtually

vory

motion çr

issue

before

the

Board

throughout

~h,

~

year history

of

this

proceeding.

Theatre

continues

to

contend

that

~

j

no

urgency

to

reach

a

final

resolution

in

this a*ttsr

.

Theatre

charges

that

the

Board

ignores

the

importance

Of this

matter

to

Theatre.

Theatre

asserts

that

the

draft

order

presented

by

the

Board

may

put

Theatre

out

of

business.

Theatre

also

states

that

Theatre

is

likely

.

to. appeal

any

order

by

the

Board

adverse

to

Theatre’s

position.

Theatre

contends

that

these

hearings

are

merely

being

conducted

Ior

the

record

on

appeal,

and

that

denying

Theatre

additionil

.tins

to

present

its

case

will

deny

Theatre

due

process

of

law

in

contravention

of

Balmoral

Racina

Club

V.

Illinois

lacing

Board

(1992),

Ill

2d

—,

—

N.E.

2d.~.

Theatre

requests

that

hearings

should

be

continued

to

scuis

dat.

in

Jaaaary because

it

cannot

prepare

adequately

or

present

its

case

given

the

present

scheduled

dates

for

hearing.

Theatr.

also

notes

that

Country

Club

Hills

has

a

similar

suit

against

Theatre

pending

in

Circuit

Court.

On

November

25,

1992

Theatre

moved to

dismiss

the

suit

in

Circuit

Court

as

duplicative.

Theatre

argues

that

by

not

allowing

additional

tine

for

hearings,

the

Board

aay

prevent

Country

Club

Hills

from

presenting

its

evidence in

any

forum.

0138-000

I

---

2

Theatre

note.

that

the

Board

may

not

be

able

to

respond

to

the present motion prior to

the

scheduled

hearing

on

December

16,

1992.

If

the

Board

does

not

address

this

matter

prior

to

the

scheduled

hearing,

Theatre

request.

that

it

be

allowed

to

present

it.

case

at

a

later

date.

In

response,

Matteson

notes

that

Theatre

now

contends

that

these

hearings

are

critical

when

it

previously

objected

to

the

holding

of

additional

bearings.

Jiatteson

also

note.

that

Theatre

ha.

failed

to

file

the

minimal

disclosure

requirements

for

Use

of

expert

testimony.

Matteson

also

points

out

that

Theatre

requested

additional

time

to

prepar.

for

the

hearings

held

during

the

summer

of 1992 but failed to

present

any

witnesses

despite

a

continuance

of

hearing

dates.’

Prior

to

addressing

Theatre’s

request

for

reconsideration

of

the

Board’ a

prior

order,

the

Board

wishes

to

address

several

contentions

made

by

Theatre

in

its

motion..

:In

ocnsideri~gthe

allegations

by

Theatre

it

is

relevant

to

eoniidSr

the

~roosdural

history

of thi. matter

•

A

complet.

history

of

this

matter

can

be

obtained

by

referencing

prior

Board

orders.

This

citizen’.

enforcement

action

was

initially filed on August .2, .1990.

The

Board

held three bearings

in

December of

1990.

-

Board

issued

an

interim

opinion

and

order

on April

25,

1991,

finding

a

violation by Theatre

and

ordering

Theatre

tO’~pr...ntthe

Board

with a

study

on

the

noise

including

possible.r~dias.‘‘The

Board

found

the

report

submitted

by

Theatre

to

be

inadequate.

The

Board

requested

additional

information

and

allowed .$atteson

to

request

additional

hearings

be

held.

$~

additional

hearing

was

requested,

but

due

to

statements

and argument.

aubsitted

by

Theatre,

the

Board

ordered

additional

hearings

to

be held.

Bearings

were

conducted

on three dates during 1992.

Discussion

The

Board

disagrees

with

Theatre’s

generalized

assertions

that the

Board

has

been

unfair

in this

proceeding

and

has

ruled

against

Theatre

despite

the

facts

and

law.

The

Board note.

that

Theatre

has

provided

no

factual

support

for

its,

assertions.

.

The

Board

‘reminds

Theatre

that

the

Board

has

already

determined

in

its

intSrim

opinion

and

order

dated

April

25, 1991,

that

Theatre

has

violated

the

Board’s

noise

regulations

during

specific

date$

throughout

the

1990

season.

Because

of

the

Importance of

the

issue,

involved

here,

the

Board

has pr

.~

iseded

with

great

deliberation

and

has

issued

many

orders..

The fact

that

the

finding

of

violation

and efforts

to

adduce

a

remedy

have

been

discussed

in

many

orders

does

not

constitut.

reputed

rulings

against

Theatre

on either

substance

or

procedure.

The

Board

announced

a

generalized

statement

of

a

possible

remedy

(octave

band

sound

monitoring

at

two

locations

and

sOund

source

reduction

as

a

necessary

component

of

any

long

term

solution)

in

its

April

25,

1991

interim

order.

(p.

35—37)

The

Board’s

August

8,

1991,

0138-0002

---

3

order clearly endorsed turning down

the

volume

and

instantaneous

feed

back

to control sound levels.

The broad

outline

of the

final order contemplated

by

the

Board

was

articulated

on

September

12,

1991

at

page

7.

Finally,

a

complete draft order

was articulated in the

order

of October 29,

1992

In

short,

Theatre

has had ample

opportunity

over

the

approximately

20

months

since

the

interim

order

to

adduce

testimony

or

other

evidence

on

the

character

of

the

anticipated

remedy.

While

the

Board

has

clearly

indicated

a

direction

that

it

contemplates

following

when

issuing

its

final

order,

the

purpose

in

presenting

a

proposed

order

was to

achieve

a

reasonable

remedy.

The

Board

has

always

and will

continue to

reach

any

determination

based

on

the

merits

of

the

case as presented in

the

record

before

the

Board.

As

the

Board

noted in it.

November

19,

1992

order,

Theatre

has’

previously

objected

to

the

holding

of *ny

additional

bearings

on

the

grounds

that

any additional

delays oQuld :1~cp*rdi*ethe

opening

of the 1993

season

•

The

Board

is also ‘~oonosrn.d

with

providing sufficient time for Theatre to

impl~nt

any

sound

control

mechanisms

that

may

be

required

by the

oard’s

-

final

order

•

The

Board

further

expressed

it.

concern

about ~tb.e

ability

of

Theatre

to

contract

with

performing

groups ‘for

1993,

considering

that

some

sound

control

provision

aay

need to

be

incorporated

into

the

contract

•

The Board

is

.oonaernsd

that

contracts

with

performing

artists

for

the

1993

:eaason

may

require

some

type

of sound control provision

in

order

for ‘Theatr.

to

effectively

control

sound

emissions

during

-1*93

•

The

Board

also

is

concerned

with

the

consequences to

Theatre “if -mound ~eantro1~

mechanisms

are

required

that

would

affect

the ebility

of

a

particular

group

with

an

existing

contract

*0tUifill

the

obligations

of

the

contract

•

The

Board

belLs~Ss’that

contracting

of groups- ‘by Theatre would

best

be

facilitated

~y’Sn

sarly

decision by the

Board

as

to

what,

if any, sound

control

menhanism

i.

required.

Theatre

has previously

argued ~th5t

Once

the

season

has

begun,

it

is

limited

in the

actions

that

it

can

take

due to

scheduled

performances.

The

Board

is

well

aware

of

the

i.portanoe

of .tbi.

matter

and

the

possible

effects

that

it.

decision

may

have

on

both

the

operation

of

the

theater

and the

residents

of

the

village

of

Matteson.

It

is

f

or

this

reason

that

the

Board

has continually

allowed

for

input

from

both

parties

on

issues

in

this

matter.

In

fact,

this

reasoning

was

one

of

thi

driving

forces

in presenting

the

proposed

order

to

the

parties

to

aid

in

the

achievement

of

a

reasonable remedy.

The

Board notes that Theatre bag previously criticized the

Board

for

not

issuing

a final order

that

could

be

appealed.

Now

Theatre wishes to delay

the

issuing

of

a

final

order

by

the

Board

in

order

to

continue

to

~preparea record for appeal.

The

4

hearings

are

necessary

to

address

several

issues

that

remain

unresolved in this matter.

The

purpose

of

the hearings

have been

clearly

delineated in prior

Board orders.

The matters

to be

addressed

at

hearing

are

focused

on

the

final

order.

considering

the history

of

this

matter

and

the

number

of

prior

hearings,

the

Board

does

not believe

that

Theatre

has

been

denied

due

process

of -law.

The Supreme Court

in

Balmoral

Racing

Club

v

Illinois

Racing

Board

(1992),

—

Ill

2d

—,

—

N.E. 3d

_,

found

that

allowing Balmoral a one-hour

lunch

break

to

consider

undisclosed

adversarial

evidence

and

prepare

a

response

was inadequate -and

constituted

a

denial

of

due

process.

To

the

extent

that

Ml*g~l

even applies

here,

the

Board

believes

that

eatre

has

been

provided

ample

time

to

prepare and

provide

cçpasjng

evidence -on

both

the

violation

and the

remedy.

The Board has

provided

Theatre

with

numerous

opportunities

to

present

its

case

and

to

provide

evidence

and

argument

to

the

Board.

In

sum,

Theatre

has

not

demonstrated

that

the Board

overlooked

tact

or

misapplied

law in

its

November

19, 1992 order

and the

Ilotion

to

Reconsider

is

denied.

On

one

additional

matter,

Theatre

contends

that the Board

baldly

declared

in

its

October

29,

1992

order.that

it; is evident

-

that

there

continues

to

be

a

noise

disturbance from the

‘Theatre.

W

Theatre

complains that

the

Board

made

this ~c1aration without

discussing the testimony,

the

extSnsive

briefs end the

paucity

of.

-evidence.

This

statement

was in

direct

rUpOnas

to the

Continuing

assertion

by

Theatre that there -is.

-no

noise

problem

and

if

there

ever

was

any

oise

problem,

it

has -teen

subsequently

alleviated.

‘It

is

the

Board’s

intention

to

‘fully .ddress

all

testimony,

briefs

and evidence in

iti

final

order.

;4~S

oazd

also

note.

that

it

made

no

finding

concerning the

~Level of

-

the

disturbance

or if

the

evidence

supported

a

finding

of

a violation

of

the

noise

regulations.

While

the

motion

for

reconsideration

1.

denied,

~atre

has

provided

some

new

factual

material

relevant

to

the

proceeding.

In contrast to its prior motion, Theatre

has

now

provided

some

specific

reasons

to

justify

the

need fOr the hearings to be

continued.

Theatre

asserts

that

it intends to

:pre$ent

witnesses

from

out-of-state

who

are

unable

to

attend

the -scheduled

hearings.

Affidavits

stating

the

inability

to ‘testify

from

three

possible

witnesses

are

attached

to

the

motion.

However,

Theatre

has

failed

to

address

the

~oard’s

concerns

over

why it i.

important

that

a

fijial

order

be

issued

in

this

matter

within

ample

time

prior

to

the

start

of

the

1993

season.

Theatre

has

not

presented

information

on

the

scheduling

of

contracts

for

the

1993

season

or

an

approximate

time

frame

needed

to

comply

with

any

possible

Board

order.

The

Board

recognizes

that

the

hearings

in

this

matter

were

scheduled

within

a

tight

timeframe.

However

-the

Board

continues

to

maintain

that

it

is

important

to

issue

a

final order’in the early-part of 1993

in

this

matter.

The

Board

0138-

OOOL~

---

5

also recognizes that

any

final

order

issued

by-the

Board

must

consider all available information.

The

Board

also realizes

that

it

has

an

obligation

to

allow

reasonable

opportunity

for

both

parties

to

submit

all

relevant

information

in

this,

matter.

The

Board will not

modify

it.

order

of

November

19,

1992.

The

scheduled

hearings

are

to

proceed exactly as scheduled.

In

cons

iderat ion

of

the

new

information

presented

to

the

Board

and

the

importance

of this

matter,

the

Board

will allow

the

hearing

officer to

extend

the December 23, 1992 hearing deadline in

this

matter.

Since

the

Board

wishes

to

assure

that the

parties

are

allowed

to

fully

present

their

case,

the

Board will

allow the

request

for

additional

hearing

time

to

be

presented

to

the

hearing

officer.

The

Board

will

permit

the

bearing

officer,

upon

a

sufficient

showing

by

either

party,

to

schedule

additional

hearings

beyond

the

previous

deadline

and

into

January

of 1993.

While

the

Board will

allow

hearings

to

be

held

up

to

January

31,

1993,

the

Board

anticipate.

that

the

parties

will

be

able

to

complete

all

hearings

at

an

early

date.

Any

such

showing

must

include

a

showing

by

the

moving

party:

1)

of

witnesses

who

will

testify

at

the

later

scheduled

hearing

including

the

nature

of

their

testimony

and their

inability

to

testify

at

the

presently

scheduled

hearing,

2)

that

a

delay

in

the

Board’s

issuing

its

final

order

will

not

interfere

with

that

order

being

followed

due

to

contract

obligations

or

scheduled

performances,

such

a

showing

could

be

made

by

presentation

of

anticipated

contracting

and performance

schedules,

or

by

a

showing of

an

inclusion

of

a

contrct

provision

noting

the

possibility

of

sound

control

liaitations,

3)

that

the

parties

will

be

able

to

complete

all

hearings

before

January

31,

1993.

However, under no

circumstances

does

the

Board

wish

to

continue hearings in this

matter

beyond January 31, 1993.

With

the completion of all hearings in

January,

expedited

transcripts,

the

presentation

of

final

arguments

on

the

record

and

no

final

brief.,

it is anticipated that

the

complete

record

in

this matter

will be before

the

Board

prior to February 15,

19931.

The

Board

intends

to

make

every

effort

to

proceed

in

an

expeditious manner

toward

issuing

a

final

order.

IT

IS

SO

ORDERED.

01 38~-~0005

---

6

I,

Dorothy

K.

Gunn,

Clerk of

the

Illinois

PollutionControl

Board,

~èreby

certify

th

the

above

order

was

adopted

on

the

___________day of

,

1992,

by

a

vote

of

4/

Dorothy

N.

qØn,

Clerk

Illinois

Poflution

Control

Board