ILLINOIS POLLUTION CONTROL BOARD
November 19,
1992
VILLAGE OF MATTESON,
)
)
Complainant,
v
)
PCB 90—146
(Enforcement)
WORLD
MUSIC
THEATRE
)
JAN
PRODUCTIONS,
LTD.
and
)
DISCOVERY SOUTH GROUP, LTD.,
)
Respondents.
ORDER OF THE BOARD
(by B.
Forcade):
This matter comes before the Board on Village of Matteson’s
(Natteson’s) October 29,
1992 “Withdrawal of Motion to Reopen
Evidentiary Hearings’t and November 4,
1992 “Withdrawal of Prior
Pleading”.
Also before the Board is a “Motion to Reset Last
Allowable Hearing Date” filed by the respondents
(Theatre)
on
November 12,
1992.
Matteson filed its response to Theatre’s
motion on November 12,
1992.
On October
9,
1992,
Matteson filed a motion to reopen
evidentiary hearings in this matter.
The Board granted this
motion in an October 29,
1992 order.
The Board in granting the
motion limited the scope of the hearing to noise complaints after
the date of the last hearing and comments on a draft order
proposed by the Board.
The Board further ordered that all
hearings be completed by December 18,
1992.
On the same date that the motion was granted, Matteson filed
a request to withdraw its motion to reopen evidentiary hearings.
On November
4,
1992, Matteson filed a “Withdrawal of Prior
Pleading”.
Natteson seeks to withdraw its request to withdraw
its motion to reopen the hearings in this matter.
Matteson
states that after a review of the Board’s October 29,
1992 order,
it “welcomes the opportunity to supplement the record consistent
with the recent directive of the Board”.
Natteson’s request to
withdraw its October 29,
1992 filing is granted.
On November 12,
1992,
respondent
(Theatre) filed a motion to
reset the last allowable hearing date.
Theatre requests
additional time to prepare for the hearing because Theatre
expects the use of substantial expert testimony at hearing.
Theatre notes that there is no basis for the December 18,
1992
completion date.
Theatre argues that setting the hearing for a
later date will allow additional time to provide public notice of
the hearing.
Theatre contends that holding the hearings prior to
January 31,
1993 will still allow ample time for the Board to
reach its final decision and for Theatre to take any actions that
may be ordered by the Board before the first concert in late May
0137-0137
2
or early June,
Matteson’s response to the motion was re~eivedby the Board
on November 12,
1992.
Matteson asserts that the date for the
hearing should not be extended.
Matteson argues that there
is
sufficient time to prepare given the extended record in this
matter.
Matteson argues that the date for the completion of
hearing should be firmly set to avoid additional delays.
The Board notes that this matter was originally filed before
the Board in August of 1990.
An interim order was issued by the
Board on May 25,
1991,
finding Theatre
in violation of the Act
and ordering Theatre to prepare a report on the sound levels and
suggest a remedy.
The Board
is concerned with the length of this
proceeding and the numerous delays and extensions in the history
of this proceeding.
Theatre has previously requested to postpone a scheduled
hearing to allow additional time to prepare for a hearing.
In
a
March 26,
1992 order, the Board ordered the parties to conduct
additional hearings on possible sound control measurements.
A
hearing was scheduled for June
9,
1992.
On May 19,
1992,
Theatre
sought a 30 day postponement in order to present its case
effectively because the hearing would coincide with the re-
opening of the theater, prohibiting Theatre personnel from
testifying at the hearing.
On June 4,
1992,
the Board denied
respondents motion for postponement but noted that the hearing
could be continued to allow for additional testimony.
At the
completion of the June
9 hearing an additional hearing was
scheduled for July
9,
later another hearing was scheduled for
July 27.
Despite these additional hearing dates, respondents did
not present any witnesses at the hearings held in 1992.
The
respot~dentshad adequate time in which to prepare for hearing
considering the continuing nature of this matter and that
subsequent hearings were scheduled 30 and 48 days after the
completion of the June
9,
1992 hearing.
Considering Theatre’s failure to present testimony on noise
abatement methods in prior hearings and their request for
previous postponements, the Board is reluctant to extend the date
for the completion of the additional hearings.
The Board feels
that, if noise control
is required that it should be implemented
by Theatre at the start of the 1993 concert season.
The Board
also feels that control concepts must be known before commitments
are made by the various performing artists.
In this manner the
artists can be forewarned of any sound limitations or controls
when contracting
a performance.
While the Board realizes that a
limited amount of time was allowed to prepare for hearing,
the
Board believes that the time allowed was adequate to prepare for
the hearing considering the limited scope
of the hearing and the
continuing nature of the proceeding.
The scope of the hearing
was articulated
in the Board’s October
29,,
1992.
U
37-0
138
3
Theatre contends that holding the hearing at a later date
will not prohibit Theatre from taking any actions required by any
future Board orders prior to the start of the concert season.
However,
the extent of any actions required to remedy the noise
problem are not presently known,
so a definite timetable cannot
be determined at this time.
The earlier that the Board is able
to issue its final decision will increase the amount of time
available to Theatre before the start of the concert season to
implement any sound control program.
The Board is also aware
that any noise control system will require a considerable amount
of fine tuning to properly control the sound.
The additional
time will help to assure that any sound control system satisfies
the
goals
of
the
Board
order.
In Theatre’s response to the motion to reopen evidentiary
hearings filed on October 16,
1992, Theatre noted that reopening
of the hearings may jeopardize the 1993 concert season by
reducing the length of time Theatre has to prepare for the
1993
concert season
in compliance with the final order. The Board
selected December 18,
1992 deadline to permit the Board to issue
its final order in early
1993 and not cause a substantial
reduction in the time available for Theatre to prepare for the
1993 season.
In selecting a completion date,
the Board also
considered the time needed to schedule a hearing date and provide
public notice.
Public notice of any hearing must be published at least 20
days prior to the hearing date in
a paper of general circulation
in
the
county
in
which
the
hearing
is
to be held.
(35 Iii.
Adm.
Code
102.162(a)(1).)
Under
the
present
hearing
schedule
there
is
no
problem
of
providing
sufficient
public
notice
of
the
hearing.
While Theatre requests additional time to prepare for the
hearing,
it provides no specific
reason
why
additional
time
is
needed.
Theatre’s
motion
is
not
supported
by
affidavit.
The
motion does not specify any witness that is unavailable for the
scheduled date or inability to obtain specific information by the
date of the hearings.
Theatre does not provide a specified
reason
why
a
change
of
the
date
for
completion
of
hearings
to
January
31,
1993
would
provide
sufficient
time.
The Board denies Theatre’s motion to extend the date for
completion of the hearing.
Accordingly, the Board instructs the
parties to proceed with the additional hearings
in this matter in
accordance with the October 29,
1992 Board order,
The Board notes that hearings have been scheduled in this
matter for December 16 and 17,
1992.
Considering the motions
presently before the Board and the scheduled dates
of the
hearings,
the Board will allow the hearing officer some
flexibility in satisfying the date for completion of hearing.
If
0137-0139
4
at the completion of the scheduled hearings, upon a showing by
either
party
that
time
constraints
prohibited
the
moving
party
from presenting testimony from an available witness, the hearing
officer may continue the hearing.
However,
irt no event shall any
hearing be continued beyond December 23,
1992.
IT
IS
SO
ORDERED.
I,
Dorothy
M.
Gunn,
Clerk
of
the
Illinois
Pollution
Control
Board1 hereby certify that tj~e~
above order was adopted on the
_____________day of
~
,
1992, by a vote of
I’
—
(I
ffl37-0H40
Control Board