ILLINOIS POLLUTION CONTROL BOARD
    May 4, 2000
    MICHAEL PAWLOWSKI and DIANE K.
    PAWLOWSKI,
    Complainants,
    v.
    DAVE JOHANSEN a/k/a DAVID
    JOHANSEN and TROY QUINLEY,
    individually, and d/b/a BENCHWARMERS
    PUB, INC.,
    Respondents.
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    PCB 00-157
    (Enforcement – Citizens, Noise)
    ORDER OF THE BOARD (by G.T. Girard):
    On March 22, 2000, Michael and Diane Pawlowski (complainants) filed a complaint
    against Dave Johansen and Troy Quinley individually and d/b/a Benchwarmers Pub
    (respondents). The complainants allege that the respondents violated Sections 23 and 24 of the
    Environmental Protection Act (Act) (415 ILCS 5/23 and 24 (1998)) and 35 Ill. Adm. Code
    900.101, and 900.102. Complainants charge that noise generated in Benchwarmers Pub on
    West Locust Street in Fairbury, Livingston County, Illinois, has unreasonably interfered with
    complainants in an adjacent building on specified dates in the year 2000.
    On April 3, 2000, respondents filed a motion requesting that the Board not accept the
    complaint. The basis for the motion is two-fold. First, respondents assert that this case is
    duplicitous because a similar case is pending before the Board.
    1
    Respondents maintain that the
    parties are the same and all allegations, “excluding the dates of the alleged pollution,” are also
    the same. Second, respondents argue that this matter is frivolous because the requested relief is
    beyond the authority of the Board to grant.
    The complainants have not filed a response to the motion.
    The Board denies the motion to dismiss and accepts this matter for hearing. The Board
    finds that the complaint is not duplicative of the previous enforcement proceeding as the alleged
    violations occurred on different dates than those violations previously adjudicated. See,
    1
    On April 6, 2000, the Board entered an interim opinion and order in Pawlowski
    et al
    v.
    Johansen
    et al
    , PCB 99-82. In that opinion and order, the Board found that respondents
    violated Section 24 of the Act and 35 Ill. Adm. Code 900.102. The Board directed the
    respondents to file a report within 60 days detailing how respondents will reduce the noise
    levels.
    2
    Fredette v. Village of Beecher (January 24, 1990), PCB 89-61. Also, the Board finds that this
    matter is not frivolous. Respondents are correct that the Board cannot issue an injunction. The
    Board can order that the alleged violations cease and desist. In addition, the request for a civil
    penalty is certainly within the Board’s authority. See 415 ILCS 5/42. Pursuant to Section 42
    of the Act, the Board may impose a civil penalty “not to exceed $50,000 for the violation and
    an additional civil penalty not to exceed $10,000 for each day during which the violation
    continues.” 415 ILCS 5/42(a). As the complaint alleges violations occurred on ten different
    dates, the requested amount of the penalty does not appear frivolous. The Board will strike the
    allegations regarding violations of Section 23 of the Act. Section 23 of the Act is the legislative
    purpose statement and as such cannot be violated.
    At this time, the Board finds that the complaint is neither duplicitous nor frivolous. This
    matter is set for hearing. However, at this time, the Board will stay this proceeding until such
    time as a final opinion and order is entered into in Pawlowski
    et al
    v. Johansen
    et al
    , PCB 99-
    82. The Board believes that such a stay may assist in the resolution of this matter. 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 30 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.
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
    the above order was adopted on the 4th day of May 2000 by a vote of 7-0.
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

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