ILLINOIS POLLUTION CONTROL BOARD

July 13,

1989

ANTHONY W. KOCHANSKI,

Complainant,

v.

)

 PCB 88-16

HINSDALE GOLF CLUB,

Respondent,

DISSENTING OPINION

 (by J.

 Dumelle and M. Nardulli):

We respectfully dissent from the majority Opinion and Order

of

 the Board in this case dated July

13,

 1989.

 We believe the

facts presented do evidence a violation of Section

 24 of the

Environmental Protection Act and would have found so

accordingly.

 Moreover,

we

are troubled by the rationale the

majority uses to support

 its position.

We believe the majority wrongly concluded that “the shotgun

sounds do not unreasonably interfere with any person’s enjoyment

of

 life,

 or with any lawful business

 or activity,

in

contravention of

 the Section 900.102 narrative standard.”

First,

we

believe that

 the Complainant has submitted

sufficient evidence for

 this Board to find unreasonable

interference with the lifestyles

 of at

 least

 the residents who

testified at hearing.

In

 its opinion,

 the majority recites the

testimony of witnesses that addresses

 the interference caused by

the shotgun blasts.

 A thorough analysis

of

 this testimony

indicates that children were frightened and adults disturbed by

the shotgun blasts.

One

of

 the witnesses testified that one day

the noise was exceptionally loud and he called the police

department.

 There

is

no

evidence

 to suggest that this individual

is

inordinately sensitive

 to noise or that this individual,

in

the normal course

of

his affairs,

 calls

 the police

 to complain.

This evidence

 is sufficient

 for us

 to find unreasonable

interference.

Second, we believe that the majority’s

 reliance on Ferndale

Heights Utilities

Co.

v.

 PCB,

Ill.

 App.

3d

 962,

 358 N.E.

2d

1224

 (1st

Dist.

 1976),

 is misplaced.

 We do not believe that

Ferndale Heights stands

for

 the proposition that this Board

is

precluded from finding

 a violatiDn simply because

 a complainant

does

not

articulate specific examples

 of the manner

 in which his

lifestyle has been disturbed.

 Yes,

 such examples provide more

support for the finding

of

 a violation.

 However,

 we can easily

in1—2’)

—2—

envision situations

 in which nearby residents have

 ill family

members or infants or aged parents who desperately require rest,

but that rest

 is denied them because of the shotgun blasts.

We

can also envision situations

 in which nearby

 residents work

during the night shifts and sleep during

 the day, but are unable

to because of the shooting.

 We believe that justice

 is better

served where this Board reviews and analyzes

 the record as a

whole, not where this Board summarily dismisses all the evidence

simply because

 a pro se complainant does not move his lips

in

a

certain way.

 We believe that a thorough analysis of this record

supports

 the finding of unreasonable interference.

We also believe that the majority wrongly applied Section

33(c) of the Environmental Protection Act

 (Act)

 in its opinion.

As the majority itself states,

 Section

 33(c)

 operates as an

opportunity

 for the respondent

 to establish

 a defense

 to the

complainant’s allegations.

 (Emphasis added).

 We agree with this

statement and believe that 33(c)

 factors are properly addressed

after the Board finds that the Complainant has made his prima

 facie case and before a sanction

 is imposed.

 In other words,

33(c)

 factors relate

 to the mitigation of

 a violation.

 However,

by the time the majority even addresses Section 33(c),

 it has

already found

 that the Complainant has not made his prima

 facie

case.

 To our knowledge,

 Section

 33(c)

 has not been used

in

 this

manner since passage of

 the Act

in

 1970.

 There

is,

 thus, no

reason for

 the majority to invoke Section

 33(c)

in

 its Opinion.

The majority’s usage

 of Section 33(c)

 is, therefore,

 erroneous.

So,

 too,

 is that which flows from

it.

 The majority uses

Section

 33(c)

 to support

 its finding that “the Golf Club’s skeet

shooting, as currently limited and practiced,

 is a reasonable

activity

 in terms of producing noise.”

 We must note that the

Board was not asked here to determine whether

 or not the noise

levels from the skeet shooting were reasonable;

 the Board was

asked

 to determine whether

 or not

 there was

 a violation of the

Act or Board regulation.

It

 is not the province of this Board to

determine whether a given activity

 is or

 is not

 reasonable.

It

is the limited function of this Board

 to determine,

 in this

context, whether

 or not

 a violation has occurred.

 Once

 it makes

such a determination and orders

 the appropriate relief

 (e.g.,

dismissal or sanction,

 if any),

 the Board’s business

is

concluded.

 Thus, that portion of the majority opinion that finds

the noise levels to be

 reasonable

 is of no merit and of

no

consequence.

In sum,

 we believe that the majority’s ultimate decision

is

wrong, and we believe that

 its reasoning

is

 flawed.

 For all of

the reasons discussed above,

we

believe

 that the holdings set

forth

 in the majority’s Opinion and Order must be strictly

limited

 to the facts presented

in

this case.

 They cannot and

must not serve

 as precedent to guide the decisions in future

actions.

101—30

—3—

For these

 reasons, we respectfully dissent.

,/J~’cobD.

 Dumelle

I,

 Dorothy

M.

 Gunn, Clerk

 of the Illinois Pollution Control

Board, hereby certify that

 the above ~issenting Opinion was

submitted on the

 ~-y”~

 day of

fr/~A’~i~

Michael

 L. ~ardulli

1989.

Ill

 lutton Control Board

101-31