ILLINOIS POLLUTION CONTROL BOARD

July 13, 1989

ANTHONY W.

KOCHANSKI,

Complainant,

v.

)

PCB 88—16

HINSDALE GOLF CLUB,

Respondent.

CONCURRING OPINION

(by

R.

C.

Flemal):

I

today

join

in

the decision of the majority

to dismiss this

matter.

However,

I

do

so

for reasons different from those

expressed

in the Opinion supporting

the dimissal.

The proper

reason

for dismissing

this matter

is that

the Board

is not

empowered

to grant

the relief requested.

Initially,

it

is

to

be recognized

that the Board

is entirely

a creation of Illinois statute, principally the Illinois

Environmental Protection Act

(“Act”;

Ill.

Rev.

Stat.

1987,

ch.

l1ll/2,

para.

1001

et seq.).

Thus,

the Board

has

no powers others

than those derived

from statute,

and

it has

no powers which are

not expressly identified

in statute.

Among

the powers which

the Act does bestow upon the Board

is

the hearing of complaints of violation

of the Act or regulations

which have been promulgated

by the Board pursuant

to the Act (Act

at Title VIII).

It

is

thus

a necessary condition

to

the hearing

of such complaints

that there

be

a prohibition

in the Act or

a

valid Board regulation

to which an allegation

of violation may be

addressed.

In the matter

at

hand,

there

is

no such prohibition

or regulation.

To

the contrary,

the Act not only does

not prohibit the

complained—of activity,

the Act affirmatively restricts the Board

from promulgating

or applying

noise regulations

to the

circumstances at

hand.

This restriction

is clearly spelled out

in Sections

25

and 3.25

of the Act,

to wit:

No Board

standards

for monitoring

noise

or regulations

prescribing limitations

on noise emissions

shall apply

to any organized

amateur or professional

sporting

activity...

(Section 25, emphasis added)

“ORGANIZED AMATEUR OR PROFESSIONAL SPORTING ACTIVITY”

means an activity or

event carried out

at

a facility

by persons

who engaged

in

that activity

as

a business

1fl1.~27

---

—2—

or

for education,

charity or entertainment for the

general

public,

including all necessary actions and

activities associated with such

an activity.

This

definition

includes,

but

is not limited

to, skeet,

trap

or

shooting sports clubs

in existence prior

to

January

1, 1975

...

(Section 3.25

of the Act, emphasis

added).

All evidence

at hand shows

that the complained—of activity

is the activity identified

in the emphasized portion of Section

3.25,

supra:

the activity

is skeet shooting;

the

skeet shooting

occurs

at

a sporting club;

the skeet shooting has been

in

existence

since

1943.

Moreover,

Section 3.25 unambiguously

includes such activity within the definition

of “organized

amateur

or professional

sporting activity”.

It must therefore be

concluded

that the complained—of activity

is

by definition

an

“organized

amateur

or professional sporting activity”,

as

this

term

is

used

in the Act.

With equal

lack of ambiguity,

Section

25

of the Act

specifies

that

no Board

regulation prescribing limitations on

noise emissions

shall apply

to any “organized amateur

or

professional

sporting activity”.

Thus,

no reading

of these

two

sections

in possible other

than that,

in combination,

they

exclude

the applicability of any Board

noise regulations

to the

circumstances

faced

in

the instant case.

Further,

if

there are

no Board regulations

to which violation may be alleged,

the Board

has

no authority

to hear the matter.

The matter must

be

dismissed.

On this basis

I concur.

/

‘N

)

R~nald

C.

Flemal

Board Member

I,

Dorothy

M.

Gunn,

Clerk of

the Illinois Pollution Control

Board, hereby certify

that the above Concurring Opinion was

submitted

on the

/~“~ day of

,j.

/

~

1989.

Dorothy M~~Gunn,Clerk

Illinois Pollution Control

1(11—28