2

On November 20, 2002, South Fork filed a

motion to substitute counsel. South Fork’s

second counsel withdrew on May 28, 2002.

During the pendency of this proceeding, Mr. Logsdon, the Manns, the Abbotts, and the

Collins filed a declaratory judgment action in Christian County Circuit Court. The complainants

received a temporary injunction against defendant Village of Kincaid on January 9, 2002, in the

circuit court for the Fourth Circuit.

See

Comp. Exh. 8 at 5.

On September 6, 2002, a circuit court of the Fourth Judicial Circuit granted the

complainants in this proceeding a permanent injunction order. Comp. Exh. 8. Fourth Circuit

Judge Spears reasoned that when South Fork requested a petition for special use from Christian

County ordinance, Section 33 (1968), to practice skeet or trap shooting as required by law, it

misidentified the parcel of real property to be rezoned.

Id

. at 3-4. The court found that neither

South Fork nor the Village of Kincaid, therefore, ever had proper authority to allow skeet or

trapshooting on the gun club property. The court concluded by permanently enjoining South

Fork from allowing skeet or trapshooting on its property unless and until Christian County issues

it a proper permit to do so.

Board Hearing Officer, Steven Langhoff, conducted a hearing on September 26, 2002.

At the hearing, the complainants presented six witnesses, five of whom are complainants in this

matter. The hearing officer found all witnesses credible.

See

hearing officer order dated

October 3, 2002. The complainants also presented 13 exhibits, all of which were admitted.

At the request of the complainants, the Board subpoenaed Mr. Timothy Binegar,

President of the South Fork Gun Club, to appear at the September 26, 2002 hearing. The

subpoena was sent by certified mail on September 12, 2002. After the United States Postal

Service attempted to deliver the subpoena on September 13 and September 18, 2002, the

subpoena was returned unclaimed on September 28, 2002. An attorney appeared at the hearing

on behalf of South Fork to request a continuance. The hearing officer denied the respondent’s

motion as untimely and prejudicial to the complainants. Mr. Binegar arrived at the hearing, but

left a short time after the hearing began.

Because Mr. Binegar was not present when called to testify at hearing, the hearing

transcripts contain no evidence presented by South Fork. Therefore, the Board will consider

evidence supporting the complainants’ arguments and requested remedy presented in South

Fork’s absence and in the complainants’ closing brief.

See

415 ILCS 5/33(c). The

complainants filed a closing brief on October 31, 2002 (Comp. Br.). South Fork submitted a

closing

brief

on November 22, 2002 (Resp. Br.). The individual who filed South Fork’s closing

brief did not make an appearance before the Board as an attorney. 35 Ill. Adm. Code

101.400(a)(4).

PRELIMINARY MATTERS

Sanctions

 

In addition to remedies, the complainants ask the Board to impose a monetary sanction of

an unspecified amount against Mr. Binegar, President of the South Fork Gun Club.

 

  

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3

Complainants made a motion for sanctions at

hearing and the hearing officer supported the

motion (

see

the hearing report dated October 3, 2002). The Board has authority to impose

sanctions on parties for failure to comply with Board orders and regulations. Section 101.800 of

the Board’s procedural rules provides that the Board may impose sanctions where a party

unreasonably fails to comply with a hearing officer or Board order, including a subpoena issued

by the Board. 35 Ill. Adm. Code 101.800. Under Section 101.800, the Board may consider

factors including the relative severity of the refusal of failure to comply, the past history of the

proceeding, and the degree to which the proceeding has been delayed or prejudiced by the

alleged violations.

 

The complainants argue the Board should sanction Mr. Binegar for abuse of process.

The complainants and hearing officer in this case state that Mr. Binegar behaved disrespectfully

and inappropriately at the hearing held on September 26, 2002. Tr. at 148. The United States

Postal Service made three attempts to deliver the subpoena sent by complainants to Mr. Binegar

without success. Mr. Binegar nonetheless arrived at the hearing with an attorney he hired the

day prior to hearing. The attorney requested a continuance but his motion was denied. The

Board further notes that Hearing Officer Steven Langhoff informed the respondent in hearing

orders dated April 22, 2002 and May 20, 2002 that the gun club must be represented by an

attorney before the Board.

 

The Board agrees that these actions are sanctionable. Mr. Binegar ignored two hearing

officer orders advising him he could not represent the gun club. His last minute retention of an

attorney appears to have been solely for the purposes of delaying the hearing. Additionally, Mr.

Binegar left the hearing before called to testify at hearing by the complainants who attempted to

subpoena him.

 

Section 101.800 does not allow the Board to monetarily sanction the offending party (

see

 

Revision of the Board’s Procedural Rules: 35 Ill. Adm. Code 101-130, R00-20, slip op. at 7

(Dec. 21, 2000), where the Board eliminated language allowing the Board to sanction the

offending party with reasonable costs incurred by the moving party in obtaining an order for

sanctions). However, Section 101.800(b)(5) provides that the Board may strike an offending

person’s pleading or other document. 35 Ill. Adm. Code 101.800(b)(5). Therefore, the Board

strikes South Fork’s closing

brief

as a sanction for failing to comply with hearing officer orders.

 

South Fork is Not Exempt from the Act or Board Rules

 

The Board stated in a July 27, 2000 order that if South Fork could prove that their

activities were amateur or professional sporting events and that the club existed prior to

January 1, 1994, the Act and Board regulations would not apply, and thus, the alleged noise

violations would be frivolous. The Board has previously found a skeet and trapshooting club

exempt from noise standards. Sheppard v. Northbrook Sports Club, PCB 94-2 (May 5, 1994).

Under Sections 25 and 3.25 of the Act, if South Fork was established in 1968 and existed ever

since, it would be exempt from Board noise regulations. Section 25 of the Environmental

Protection Act provides, in pertinent part, that “[n]o Board standards for monitoring noise or

regulations prescribing limitations on noise emissions shall apply to any organized amateur or

professional sporting activity except as otherwise provided in this Section.” 415 ILCS 5/25

 

  

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4

(2000). “Organized amateur or professional

sporting activity” is defined, in pertinent part,

at Section 3.25 of the Environmental Protection Act:

an activity or event carried out at a facility by persons who engaged in that

activity as a business 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, (i) rifle and pistol ranges,

licensed shooting preserves, and skeet, trap or shooting sports clubs in existence

prior to January 1, 1994. 415 ILCS 5/3.25 (2000).

 

Although the gun club was incorporated in 1968, that corporation was dissolved from

1981 through 1999, when it reincorporated.

See

Comp. Group Exh. 6A, 6B. The gun club did

not exist on January 1, 1994. Therefore, the club is not exempt from Board noise regulations

under Sections 25 and 3.25 of the Act, and the Board finds that the violations alleged by the

complainants are not frivolous.

FACTS

Complainants

 

The complainants live in a rural area in Taylorville near Lake Kincaid. The Collins,

Logsdon, Zini, and Martins’ properties all border Lake Kincaid. The Mann and Abbotts’

properties are located nearby, but are not adjacent to the lake. Mr. Logsdon’s property is about

600 to 700 feet away from the shooting area of the gun club. Comp. Exh. 1.

South Fork Gun Club

 

Mr. Binegar is president of the South Fork Gun Club and a member of the Christian

County Board. Respondent’s trap shooting and rifle club is a not-for-profit organization located

in Kincaid, Christian County. The record does not establish how many people South Fork

employs or how many people visit the club. South Fork’s articles of incorporation state the

purposes of the club include promoting interest and education in the field of firearms and

firearms safety and control, gun collection, amateur gunsmithing, and the promotion and

fostering of safe hunting practices. Comp. Exh. 6A. South Fork advertises in the local

newspapers for membership and various shoots. Tr. at 27.

South Fork incorporated the gun club on February 15, 1968, and Christian County

granted the club a special use permit on March 8, 1968, for the purposes of trapshooting.

See

 

Comp. Group Exh. 7A. The Secretary of State then dissolved the corporation on July 1, 1981,

for South Fork’s failure to file an annual report. Comp. Exh. 6B. The gun club reincorporated

on January 5, 1999 (Comp. Group Exh. 6A), but the club did not request another special use

permit, nor did the original special use permit cover the real property at issue.

1

  

See

Comp. Exh.

8, at 3.

1

A Fourth Judicial Circuit court found the permit void

ab initio

on September 6, 2002, due to an

error in the legal description of the property.

 

  

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5

Since 1968, Christian County’s zoning

laws have required that skeet or trap shooting

special use permits be granted only for properties at least 1,320 feet or more away from any

residence. Comp. Exh. 7B, at 23. The record does not disclose the exact distances between the

gun club and the neighboring residences. However, a map from the Christian County zoning

office (Tr. at 17) shows the acreage and lengths and widths in feet of the complainants’ parcels

of land in relation to the location of South Fork. Comp. Exh. 1. The Board finds that the map,

the complainants’ testimony, and testimony from the Christian County zoning officer, Mr.

Rahar, establish that South Fork is closer than 1,320 feet from the residences. Tr. at 69; Tr. at

153-54.

 

Shooting occurred regularly at South Fork from Fall 1998 through 2001. South Fork was

temporarily enjoined from skeet or trapshooting activities on January 9, 2002. The Fourth

Circuit later issued a permanent injunction on September 6, 2002, which prevents South Fork

from such activities unless and until it receives a special use permit. Comp. Exh. 8. South Fork

held a rock concert on Friday, September 27, 2002, that lasted from about 8:45 p.m. to 1:25 a.m..

Subsequent to the hearing, Mr. Logsdon signed a sworn affidavit stating that South Fork held

another loud party at the gun club on October 18, 2002. Comp. Br. Attachment A.

Noise Emissions Testimony

In summary, complainants’ testimony is that while the shooting was occurring, they

could not entertain guests inside or outside of their houses; wildlife left the area; they could no

longer fish on the lake adjacent to their properties; they were deprived of sleep; and became

irritable, stressed, and of bad humor. Each individual’s testimony is set forth below.

Mr. Michael Logsdon

 

Mr. Logsdon moved into his Taylorville home in August of 1996. Tr. at 15. Mr.

Logsdon stated that shooting at the gun club sometimes started at 8:30 a.m. and continued until

10:00 p.m. or 12:00 a.m.. Tr. at 28. Mr. Logsdon also said the volume of shooting varied, and

sometimes there were as many as 16 rounds per minute being fired off for several hours at a

time. Tr. at 29.

Mr. Logsdon took numeric noise measurements with an analog sound meter from Radio

Shack on May 30, 2000, at the Collins’ property between 1:30 p.m. and 1:39 p.m., and on his

own property between 7:15 p.m. and 7:55 p.m. Comp. Exh. 3. Mr. Logsdon read the Board

rules and consulted with Mr. Greg Zak, at the time a noise specialist employed by the Illinois

Environmental Protection Agency, about how to properly take the readings. Tr. at pp. 35-36.

The noise readings were made at least 25 feet away from any structures. Tr. at 32. Mr.

Logsdon wrote the results down on paper while he was taking decibel readings with the meter.

Tr. at 36; Comp. Exh. 3. The A-weighted readings averaged 70 decibels (dB) on Mr. Collins’

property and 74 dB on his own property.

 

Regarding his physical health, Mr. Logsdon stated he cannot sleep while there is shooting

going on at the gun club. He began to take antidepressants to control his anxiety because of the

shooting. Tr. at 47. Furthermore, Mr. Logsdon’s children could no longer play in the yard

because of the loud noises. On one occasion, a shell landed on them while they were out in a

 

  

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6

boat on the lake. Tr. at 45, 48. Mr. Logsdon

wrote a letter to the gun club and the village,

signed by several neighbors, complaining about the shooting in November of 1999. Comp. Exh.

4.

Mr. Alvin and Mrs. Kathy Abbott

Mr. Abbott moved into his current home in Taylorville on September 30, 1982. Tr. at 82.

Mr. Abbott made a video of the gun club from his property on June 9, 2000 at around 7:30 or

8:30 p.m. Mr. Abbott also made an audio recording from the video. Comp. Exh. 10. The video

shows the weather conditions were slightly overcast with little to no wind and also shows the

shooting noises coming from South Fork measured in the upper 60s to low 70s dB range. Comp.

Exh. 10.

 

The shots coming from the gun club property kept Mr. Abbott awake at night. Tr. at 92.

He believes his lack of sleep was a safety hazard to those he worked with at the Formosa

Chemical Plastics chemical plant. At home, he had to close down the swimming pool in his back

yard and has become hard of hearing in the past two years. Tr. at 93. Mr. Abbott takes medicine

to calm his nerves when there is shooting at the gun club. Tr. at 94. Like her husband, Kathy

Abbott also works nights. She usually goes to bed around 5:00 p.m., but gets no sleep when

shooting is going on at the gun club. Tr. at 100. The lack of sleep also affected her work and

put her in a bad mood. Tr. at 101.

Mr. Darrell Mann

Mr. Darrell Mann moved into his current Taylorville residence in April of 1997. Tr. at

106. Mr. Mann worked several jobs, but had to take a leave of absence from his position as

deputy sheriff of Christian County because of lack of sleep due to shooting at the gun club. Tr.

at 119. He also feels his tension and lack of sleep put the safety of his coworkers at his coal

mining job in jeopardy. Mr. Mann’s doctor prescribed him Paxil and Xanax for his nerves. Mr.

Mann said pellets from the gun club actually hit him and his children when they were on Mrs.

Martin’s property nearby. Tr. at 111. Mr. Mann’s daughter’s grades went from A’s to B’s while

there was shooting at the gun club. The grades went back up to As when the shooting stopped.

Tr. at 123. Mr. Mann also recorded sound readings on his property using the same sound meter

that Mr. Logsdon used on May 20, 2000 between 4:36 p.m. and 4:41 p.m. Tr. at 112; Comp.

Exh. 12.

Mr. Dave Collins

Complainant Dave Collins moved into his Taylorville home in March of 1986. Tr. at

133. Mr. Collins stated that his work at Doctor’s Hospital in Springfield required him to go to

bed at 8:30 a.m. on a normal day. However, when there was shooting, he got no sleep at all. He

says the shooting causes him stress and prevents him from enjoying the use of his home. Both

he and his wife were on medicine to calm their stress due to the shooting. Tr. at 143.

 

  

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7

APPLICABLE LAW

 

Section 24 of the Environmental Protection Act prohibits a person from emitting noise

beyond her property that “unreasonably interferes with the enjoyment of life or with any lawful

business or activity, so as to violate any regulation or standard adopted by the Board under this

Act.” 415 ILCS 5/24 (2000).

Section 33(c) of the Act provides that:

In making its orders and determinations, the Board shall take into consideration

all the facts and circumstances bearing upon the reasonableness of the emissions,

discharges, or deposits involved including, but not limited to:

i.

The character and degree of injury to, or interference with the protection

of the health, general welfare and physical property of the people;

ii.

The social and economic value of the pollution source;

iii.

The suitability or unsuitability of the pollution source to the area in which

it is located, including the question of priority of location in the area

involved;

iv.

The technical practicability and economic reasonableness of reducing or

eliminating the emissions, discharges or deposits resulting from such

pollution source; and

v.

Any subsequent compliance. 415 ILCS 5/33(c) (2000).

Section 900.101 Definitions

Noise pollution: the emission of sound that unreasonably interferes with the

enjoyment of life or with any lawful business or activity. 35 Ill. Adm. Code

900.101.

Section 900.102 Prohibition of Noise Pollution

No person shall cause or allow the emission of sound beyond the boundaries of

his property, as property is defined in Section 25 of the Illinois Environmental

Protection Act, so as to cause noise pollution in Illinois, or so as to violate any

provision of this Chapter. 35 Ill. Adm. Code 900.102

Section 901.104 of the Board’s rules sets daytime and nighttime decibel standards for the

emission of impulsive sounds. 35 Ill. Adm. Code 900.102 and 901.104.

 

  

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8

DISCUSSION

Section 901.104 Numeric Noise Standards and Measurements

 

Complainants allege that South Fork violated both applicable daytime and nighttime

impulsive noise standards (50 dB and 45 dB, respectively, when sound is emitted to Class A

land) found at Section 901.104 of the Board’s rules. 35 Ill. Adm. Code 901.104. To determine

whether the respondent violated any section of 35 Ill. Adm. Code 901, complainants must take

sound measurements in strict conformance with the procedures set forth in Section 900.103(b).

35 Ill. Adm. Code 900.103. Together Sections 900.103(b) and 901.104 require, in part, that

measurements are based on a Leq averaging over a one-hour period, made less than 25 feet from

the property line noise source, A-weighted for impulsive sound, and corrected for ambient or

background noise.

See

Anthony and Karen Roti

et al

. v. LTD Commodities, PCB 99-19, slip op.

at 19-20 (Feb. 15, 2001).

 

The Board finds no violation of Section 901.104 of the Board’s regulations because the

complainants did not follow every required procedure in taking sound measurements. Because

the complainants’ property is residential, the Board finds it is Class A land. See 35 Ill. Adm.

Code 901.101(a), 901.Appendix B. Additionally, the Board finds that South Fork is a property

line noise source. 35 Ill. Adm. Code 900.101. Although complainants used the proper

measuring instrument, calibrated the noise monitoring machine correctly, and made

measurements from the proper distance away from the noise emission source and from other

objects in the vicinity, the complainants’ reports and testimony confirm they did not make the

measurements using the required reference time of one-hour intervals. Therefore, without strict

adherence to the Board procedures, the Board cannot find a violation of the impulsive sound

property line emissions at Section 901.104.

Nuisance Noise Violation

 

Complainants also allege that South Fork violated Section 24 of the Act and Section

900.102 of the Board regulations. 35 Ill. Adm. Code 900.102; 415 ILCS 5/24; Comp. Br. at 3.

Together these provisions constitute a prohibition against nuisance noise pollution. Charter Hall

Homeowner’s Ass’n and Jeff Cohen v. Overland Transp. Sys., Inc., and D.P. Cartage, Inc., PCB

98-81, slip op. at 19 (Oct. 1, 1998);

citing

Zivoli v. Prospect Dive and Sport Shop, Ltd., PCB 89-

205, slip op. at 8 (Mar. 14, 1991). In determining whether noise emissions rise to the level of a

nuisance, the Board performs a two-step analysis. Young v. Gilster-Mary Lee Corp., PCB 00-

90, slip op. at 8-9 (Sept. 6, 2001). First, the Board must determine whether the noise interferes

with the complainants’ enjoyment of life and property.

Id

. Second, the Board must consider the

factors provided in Section 33(c) of the Act to determine whether the interference is

unreasonable.

Id.; citing

Charter Hall, PCB 99-81, slip op. at 19-21. As discussed below, the

Board finds that the noise that came from South Fork interfered with the complainants’

enjoyment of life and that the interference was unreasonable.

Interference With Enjoyment of Life

The Board has previously held in nuisance noise proceedings that unreasonable

interference is more than the complainants’ ability to distinguish sounds attributable to a

 

  

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9

particular source. Rather, the noise must

objectively affect the complainant’s life or

business activities.

See

Hoffman v. City of Columbia, PCB 94-146, slip op. at 15-16; Zivoli,

PCB 89-205, slip op. at 9.

 

Sounds emanating from the gun club clearly and objectively affected the complainants’

life and use of their property. Complainants Mr. Logsdon, Mr. and Mrs. Abbott, Mr. Mann, and

Mr. Collins all complained of interferences with their sleep and stated they and their families had

reduced use of their property because of shooting at the gun club. Mr. Logsdon, Mr. Abbott, Mr.

Mann and Mr. Collins and his wife all began taking anxiety medications after shooting began at

the gun club.

2

The Board finds that the noise created by the gun club constitutes an interference

with the complainants’ enjoyment of life and property.

 

Unreasonableness of Interference

 

The second step in the nuisance noise analysis is to determine whether the noise from

South Fork unreasonably interfered with the complainant’s enjoyment of life. The Board

considers each factor set forth in Section 33(c) of the Act, but need not find against the

respondent on each factor to find that the noise was unreasonable.

See

Wells Manufacturing Co.

v. PCB, 73 Ill. 2d 266, 233, 383 N.E.2d 148, 151 (1978); Processing and Books, Inc. v. PCB, 64

Ill. 2d 68, 75-77, 351 N.E.2d 865, 869 (1976). For the reasons set forth below, the Board fnds

South Fork’s noise was an unreasonable interference.

The Character and Degree of Injury.

Under this factor, the Board assesses whether the

noise “substantially and frequently interferes” with the complainants’ enjoyment of life and

property, “beyond minor or trifling annoyance or discomfort.” Kvatsak v. St. Michael’s

Lutheran Church, PCB 89-182, slip op. at 9 (Aug. 30, 1990).

The Board found above that the complainants’ noise measurements and logs cannot be

used to prove a violation of the Board’s numeric noise limits. However, the measurements and

logs can be used as evidence to prove that South Fork violated applicable nuisance noise

provisions, so long as they are technically justified. Young, PCB 00-90, slip op. at 14. The

Board finds the complainants’ measurements are credible evidence. The sound measuring

device was properly calibrated. The complainants took sound measurements on May 28, 2000 at

the Martins’ property between 4:16 p.m. and 4:26 p.m. and on the Manns’ property between 4:36

p.m. and 4:41 p.m., and on May 30, 2000, at the Collins’ residence between 1:30 p.m. and 1:40

p.m. and at the Logsdon’s back porch between 7:15 p.m. and 7:55 p.m. The decibel levels

ranging between 70 and 74 dB show that noises coming from South Fork were very loud and

frequent.

 

Shooting at South Fork occurred sometimes 12 to 14 hours per day, 5 days a week. The

complainants have proven physical effects resulting from the noise. Shooting noises have

2

The Board does not consider complainants’ testimony of taking anti-anxiety medication as a

result of the shooting a medical opinion.

See

Young, PCB 00-90, slip op. at 11, 15.

 

  

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10

disrupted the sleep of Mr. Logsdon, Mr. and

Mrs. Abbott, Mr. Mann, and Mr. Collins. All

of the same complainants experienced increased anxiety and tension and had to start taking

medication to calm their nerves due to the shooting. Mr. Mann’s daughter’s grades suffered

while the shooting was occurring. The complainants’ families could no longer play or entertain

outside because of the noise. The Board weighs this factor against South Fork.

 

The Social and Economic Value of the Pollution Source.

The record does not

establish how many people South Fork employs or how many people visit the club.

Furthermore, nothing in the record indicates the gun club has furthered the goals set forth in

South Fork’s articles of incorporation by offering instruction or education to the public. The

record states only that South Fork advertised in the local newspaper for membership and various

shoots. There also is nothing in the record stating that the gun club returns proceeds to the

community or is otherwise of economic value. Thus, while the gun club may have had social

value to its members, its manner of operation negatively impacted its neighbors in the

community. The Board weighs this factor neither in favor of nor against the respondents.

The Suitability or Priority of Location.

South Fork does not have priority of location.

South Fork was incorporated in 1968. The gun club was administratively dissolved by the

Secretary of State in 1981 and not reincorporated until 1999. South Fork argues that “just

because the Gun Club did not operate for several years and did not pay the annual franchise tax

with the Illinois Secretary of State,” nothing stops South Fork from paying the unpaid taxes and

bringing the corporation into good standing. Resp. Br. at 1-2.

This argument has no merit. Illinois law provides that dissolution of a not-for-profit

corporation ends its existence. 805 ILCS 105/112.30. A domestic corporation may be revived

with all powers, duties, and obligations as if it had not been dissolved if the corporation

reinstates within five years of being administratively dissolved. 805 ILCS 105/112.45.

However, South Fork did not reinstate until 18 years after it was administratively dissolved.

Complainants started moving into the area in 1982 and all of the complainants had moved in by

1997. Therefore, complainants already lived in the area when South Fork began shooting again

in the fall of 1998 and reincorporated in 1999. The Board finds that complainants had priority of

location.

South Fork is also not suitable to its location because the special use permit it obtained in

1968 is void and because the permit violates its own stated restriction on proximity. On

September 6, 2002, a Fourth Judicial Circuit court found that South Fork’s permit for special use

was void

ab initio

due to an error in the legal description of the real property. Comp. Exh. 8.

In addition, the gun club is too close to the complainants’ properties. When South Fork

incorporated in 1968, the gun club property’s zoning was changed from agricultural to special

use for skeet and trap shooting purposes. When the club was reincorporated in 1999, the

surrounding property was zoned residential. The Christian County’s zoning ordinance, in effect

since the time of South Fork’s reincorporation in 1999, states that the county board may

authorize a petition for special use for the purposes of skeet or trap shooting only if the use is not

closer than 1,320 feet from any residence. Comp. Exh. 7B, at 23; Comp. Exh. 8 at par. 6. As

discussed above, the gun club is located within 1,320 feet of the neighboring residences.

 

  

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11

Therefore, when the gun club reincorporated,

its petition for special use was void

ab initio

,

as found by the Fourth Circuit. The Board weighs this factor against South Fork.

The Technical Practicability and Economic Reasonableness of Reducing or

Eliminating the Emissions.

Under this factor, the Board looks at whether South Fork could

have employed readily available, practical, and reasonable means to reduce or eliminate the

allegedly offensive noise. Incinerator, Inc. v. PCB, 59 Ill. 2d 290, 298-299, 319 N.E.2d 794, 798

(1974); Scarpino v. Henry Pratt Co., PCB 96-110, slip op. at 20 (Apr. 3, 1997).

 

The complainants ask the Board to order South Fork to cease and desist from causing any

further noise pollution whether occurring day or night. The record contains no evidence that

noise reduction is technically impracticable or economically unreasonable. The Board weighs

this factor against the respondents.

 

Any Subsequent Compliance

. Under this factor, the Board considers whether South

Fork has attempted to ameliorate the situation by reducing emissions that caused the alleged

violations of the Act and Board regulations. Since the complainants filed this case in April,

2000, complainants contend that South Fork did nothing to reduce the noise coming from the

gun club until it was temporarily enjoined from shooting activities by a Fourth Judicial Circuit

court in January, 2002. Subsequently, South Fork was permanently enjoined from conducting

skeet or trapshooting on the gun club’s property by the same court on September 6, 2002.

Subsequent even to the permanent injunction, South Fork obtained a permit to host a concert on

the premises on September 20, 2002 from 9 p.m. until 12 a.m. Tr. at 75. The concert lasted until

approximately 1:25 a.m.

 

 

The Board finds that South Fork made no effort to remedy the shooting noises until they

were enjoined by a court of law. The Board weighs this 33(c) factor against South Fork.

 

Again, in conclusion, the Board finds that noise from South Fork unreasonably interfered

with the complainants’ enjoyment of life and their property. The Board will now consider the

complainants’ requested remedy.

REMEDY

Cease and Desist Order

 

Complainants request the Board to enter a cease and desist order. The complainants also

request that the Board order South Fork to pay a civil penalty of $174,600, and sanction Mr.

Binegar individually with a monetary penalty. Having considered the 33(C) factors, the Board

will order South Fork to cease and desist from any further violations of the nuisance noise

prohibitions of 415 ILCS 5/24 (2000) and 35 Ill. Adm. Code 900.102 and 901.104. As discussed

above, the Board also sanctions respondents by striking the respondents’ closing brief.

Therefore, the remaining issue for the Board to decide is whether South Fork must pay a civil

penalty.

 

  

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12

Civil Penalty

The formula for the maximum penalties that the Board may assess is at Section 42(a) of

the Act, which states in pertinent part:

[A]ny person that violates any provision of the Act or any regulation adopted by the

Board . . . shall be liable to a civil penalty not to exceed $50,000 for the violation and an

additional civil penalty of not to exceed $10,000 for each day during which the violations

continues . . . . 415 ILCS 5/42(a) (2000).

Pursuant to Section 42(a) of the Act, the Board could impose a civil penalty of $50,000

for each of the two violations. Additionally, Section 42(a) would allow the Board to impose

further civil penalties of $10,000 per day for each day the violation continued. The Board found

above that the violations occurred for over three years.

In determining the appropriate civil penalty, the Board must also consider the record in

light of the factors set forth in Section 33(c) and Section 42(h) of the Act, which may either

mitigate or aggravate the penalty assessment.

Section 42(h) of the Act states that “in determining the appropriate civil penalty to be

imposed, the Board is authorized to consider any matters of record in mitigation or aggravation

of penalty, including but not limited to the following factors: (1) the duration and gravity of the

violation; (2) the presence or absence of due diligence on the part of the violator in attempting to

comply with the requirements of this Act and regulations thereunder or to secure relief therefrom

as provided by this Act; (3) any economic benefits accrued by the violator because of delay in

compliance with requirements; (4) the amount of monetary penalty which will serve to deter

further violations by the violator and to otherwise aid in enhancing voluntary compliance with

this Act by the violator and other persons similarly subject to the Act; and (5) the number,

proximity in time, and gravity of previously adjudicated violations of this Act by the violator.”

Complainants argue that based on a review of the Section 42(h) factors, the Board should

impose a penalty of not less than $174,600 on South Fork. Complainants reason that five days of

shooting a week from 1999 through 2001, at $200 per day, over nearly three and a half years (a

total of 873 days since shooting only occurred on 90 days in 1998), equals a monetary penalty of

$174,600. Comp. Br. at 12.

In considering penalty issues, the Board looks to its own past precedent. The Board has

imposed a $15,000 civil penalty on a respondent for causing nuisance noise violations. Charter

Hall Homeowner’s Assoc. v. Overland Transp. Sys., Inc., PCB 98-81 (May 6, 1999). In Charter

Hall, the violations occurred for more than two years and the respondent did not retain a noise

control expert nor did it implement any of the several reasonable measures available to reduce

the noise.

After careful review of the 42(h) and Section 33(c) factors and relevant Board opinions,

the Board finds that a civil penalty is warranted in this case. The Board found above that the

noise coming from South Fork unreasonably interfered with the complainants’ enjoyment of life.

Any social value of the gun club to its members was undercut by the negative impact on its

 

  

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13

neighbors. Furthermore, the Board found that

the degree of injury was severe and that the

complainants had priority of location. The respondent has not shown that the noise nuisance

cannot be abated in an economically reasonable and technically feasible manner. Even after the

filing of this complaint, South Fork was not diligent in attempting to comply with the

requirements of this Act. The violations lasted for more than three years and significantly

interfered with the complainants’ enjoyment of life and use of their property.

Nonetheless, the $174,600 penalty requested by the complainants would be excessive.

South Fork is a not-for-profit corporation intended for purposes of recreation and education.

Charter Hall is also distinguishable from this proceeding so as to warrant a smaller

penalty here. The respondent in Charter Hall had 32 trucking terminals throughout the Midwest,

including five in Illinois. A larger penalty was needed in that case to deter the respondent, as

well other similarly situated entities. In assessing all of the relevant factors, and to deter further

violations by South Fork and other entities similarly situated, the Board finds a civil penalty of

$3,000 is appropriate. South Fork must pay this amount of civil penalty to the Environmental

Trust Fund.

CONCLUSION

 

Based on the record before the Board, consisting of evidence presented at hearing and

arguments set forth in their closing brief, the Board finds that complainants proved that South

Fork committed nuisance noise violations. Therefore, the Board finds that South Fork Gun Club

violated Section 24 of the Act and Section 900.102 of the Board regulations, by causing an

unreasonable interference with the complainants’ enjoyment of life and their property. The

Board orders South Fork to cease and desist from further violations of the Act and Board

regulations. In addition, the Board orders South Fork to pay a civil penalty of $3,000.

 

This opinion and order constitutes the Board’s findings of facts and conclusions of law.

ORDER

1.

The Board finds that South Fork has violated Section 24 of Act (415 ILCS 5/24)

and 35 Ill. Adm. Code 900.102.

2.

South Fork must pay a civil penalty of $3,000 no later than January 18, 2003,

which is the 30th day after the date of this order. South Fork must pay the civil

penalty by certified check or money order, payable to the Environmental

Protection Trust Fund. The case number, case name, and South Fork’s social

security number or federal employer identification number must be included on

the certified check or money order.

3.

South Fork must send the certified check or money order to:

 

  

Illinois Environmental Protection Agency

Fiscal Services Division

 

  

1021 North Grand Avenue East

 

  

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14

 

P.O.

Box

19276

Springfield,

Illinois

62794-9276

 

5.

Penalties unpaid within the time prescribed will accrue interest under Section

42(g) of the Environmental Protection Act (415 ILCS 5/42(g) (2000)) at the rate

set forth in Section 1003(a) of the Illinois Income Tax Act (35 ILCS 5/1003(a)

(2000)).

 

6.

South Fork must cease and desist from the alleged violations.

 

 

IT IS SO ORDERED.

 

Board Member W.A. Marovitz dissented.

Section 41(a) of the Environmental Protection Act provides that final Board orders may

be appealed directly to the Illinois Appellate Court within 35 days after the Board serves the

order. 415 ILCS 5/41(a) (2000);

see also

35 Ill. Adm. Code 101.300(d)(2), 101.906, 102.706.

Illinois Supreme Court Rule 335 establishes filing requirements that apply when the Illinois

Appellate Court, by statute, directly reviews administrative orders. 172 Ill. 2d R. 335. The

Board’s procedural rules provide that motions for the Board to reconsider or modify its final

orders may be filed with the Board within 35 days after the order is received. 35 Ill. Adm. Code

101.520;

see also

35 Ill. Adm. Code 101.902, 102.700, 102.702.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board

adopted the above opinion and order on December 19, 2002, by a vote of 5-1.

 

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board