ILLINOIS POLLUTION CONTROL BOARD

December

20,

1990

RONALD E. TEX and SUSAN

D. TEX,

)

)

Petitioners,

v.

)

PCB 90—182

(Enforcement)

S. SCOTT COGGESHALL and

)

COGGESHALL CONSTRUCTION COMPANY,

)

)

Respondents.

ORDER OF THE

BOARD

(by B. Forcade):

On December

6,

1990,

S.

Scott Coggeshall filed a Motion for

Reconsideration

of

the Board’s

November

29,

1990 Order

denying

his

motion

to

dismiss.

The

Motion

for

Reconsideration

is

denied.

The

complaint,

as

amended

by

the

November

28,

1990

filing,

claims

the

respondent

is

violating Section

9(a)

of

the

Environmental

Protection

Act

by

causing

or

allowing

air

pollution,

and

violating

Section

24

regarding

emitting

noise

beyond

“the

boundaries

of

his

property”.

The

individual

Respondent

admits

to

being

the

owner

of

the

real

estate

in

question

and

is

claimed

to

have

ownership

of

the

company.

In

such a circumstance this Board cannot conclude as a matter of law

that

complainants

could

not

prove

the

individual

respondent

“caused or allowed” pollution or was responsible for the emission

of sound from “his property.”

In

addition,

the

public/private

nuisance

arguments

are

misplaced.

The

Tex’s

have

not

filed

a

case

sounding

in

the

common law tort of

nuisance

(either public or private). The case

they filed claims violations of specific statutory language found

in

the

Environmental Protection

Act,

which

grants

citizens

the

authority to enforce,

and grants this Board

jurisdiction

to hear

the enforcement action.

IT IS SO ORDERED.

I, Dorothy M.

Gunn,

Clerk of the Illinois Pollution Control

Board, hereby certif

that the above Order was adopted on the

~F~J

day of

___________________,

1990,

by a vote of

7~’

~

Dorothy M1/Gunn, Clerk

Illinois ~ollution Control Board

117—149