BEFORE THE ILLINOIS POLLUTION CONTROL BOAIth~
ULEHK’S
~‘~~
OFF1~’r
MICHAEL A. PETROSIUS
AND
)
OCT ~ ~ 2003
DARLA G. PETROSIUS,
)
STATE OF
ILLINOIS
Complainants,
)
Pollutio~control Board
)
v.
)
PCB04-036
)
(Enforcement)
)
THE ILLINOIS STATE TOLL
)
HIGHWAY AUTHORITY,
)
)
Respondent.
)
NOTICE OF FILING
TO:
Michael A. Petrosius
7335
Maridon Road
LaGrange, IL
60525
PLEASE TAKE NOTICE that I have today filedwith the Office ofthe Clerk ofPollution
Control Board the
MOTION TO DISMISS FRIVOLOUS COMPLAINT
of The Illinois State
Toll Highway Authority, a copy ofwhich is herewith se d upon yo
By:
_________
Victor F. A~ar
Assistant Attomey~General
Illinois State Toll HighwayAuthority
2700 Ogden Avenue
Downers Grove, IL
605
15-1703
(630) 241-6800, extension 1540
CERTIFICATE OF
SERVICE
I, the undersigned, on oath, state that I have served on the date of October 7, 2003, the attached
NOTICE OF
FILING and
MOTION TO DISMISS FRIVOLOUS COMPLAINT
by causing
a copy to be delivered via Messengerto the Office of the Clerk ofPollution Control Board and
via U.S. Mail, postage prepaid, at 2700 Ogden Avenue, Downers Grove, Illinois 60515, upon
Michael A. Petrosius, 7335 Maridon Road,
I
OFFICIAL SEAL
ANNETTE VINEW
Notary Public - State of Illinois
M~
Commission
Expires Nov 22. 2006
-_ w w W ‘W -w — -w w
— -~
•
BEFORE THE ILLINOIS POLLUTION CONTROL BO~(~.)pE~
CLERK’S OFFICE
MICHAEL A. PETROSIUS
AND
)
DARLA G. PETROSIUS,
)
OCJ
t,
? 2003
(1
~omp~ainan
1
s,
STATE OF ILLINOIS
)
Pollution Control Board
v.
)
PCB04-036
)
(Enforcement)
)
THE ILLINOIS STATE TOLL
)
HIGHWAY AUTHORITY,
)
)
Respondent.
)
APPEARANCE
I hereby file my appearance in this proceeding, on behalf ofthe Respondent, THE
ILLINOIS STATE TOLL HIGHWAY AUTHORITY.
Victor F. Azar
U
Assistant Attorney General
The Illinois State TollHighway Authority
2700 Ogden Avenue
Downers Grove, IL 60515
(630) 241-6800, ext. 1540
I certify that a copy ofthe within instrument was served on all parties who have appeared
and have not been found by the Court to be in default for failure to plead.
Victor F~Azar, Attor~~for Respondent
•
•
CLERK’SCiEij\7;~r,OFT~1CE
•OC.T
o
7 2003
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
Pollution
~
AlE OFControlILLINOISBoard
MICHAEL A. PETROSIUS AND DARLA 0. PETROSIUS,
Complainants,
v.
PCB 04-036
(Enforcement)
THE ILLINOIS STATE TOLL HIGHWAY AUTHORITY,
Respondent.
MOTION TO DISMISS FRIVOLOUS COMPLAINT
Respondent, THE ILLINOIS STATE TOLL HIGHWAY AUTHORITY (“Toliway”),
•
through its attorney, LISA MADIGAN, Attorney General of the State of Illinois, moves
the Pollution Control Board to dismiss the Complainants’ Formal Complaint because it is
frivolous. In support thereof, the Toliway states the following:
1.
That the Michael A. Petrosius and Darla G. Petrosius filed their Private
Enforcement Action on September25, 2003.
2.
That the Tollway is an instrumentality and administrative agency of the State of
Illinois. 605 ILCS 10/3.
3.
That the 1-90 tollway was completed in 1958. The Tollway installed the sound wall
by Complainants’ home in 1993-1994. That the sound wall was pre-existed
Complainants moving into the home. The Complaint seeks to have the Tollway
add to the current 18-foot wall, which is alleged to be “four feet below toliroad” to
•
“18 feet above the road.” This would result in a 40-foot wall.
4.
A complaint is frivolous if “a request for relief that the Board does not have the
authority to grant, or a complaint that fails to state a cause of action upon which
the Board can grant relief.” 35 III. Adm. Code 101 .202.
5.
That the Federal Highway Administration has established Noise Abatement
Criteria for federally funded highways, which sets decibel levels to be achieved.
23 CFR 772.1
etseq.
However, the rules are for proposed highway projects. 23
USC 109.
6.
That the complaint alleges that the noise complained of comes from the “Toll
collection/entrance ramp, running northbound along property line onto 1-294.”
7.
That pursuant to the
Standard Land Use Coding System
the Toliway’s roads are
Code-45 and Category-”Highway and street right-of-way.” The Tollway’s roads fall
under Code-452 (4520) Expressways. “Expressways” are divided highways for
through traffic with full control of access and no cross traffic at grade.” The Land
Class is therefore, “U”. 35 IA.C., Ch. I, Part 901, Ap. B, footnote 10.
•8.
That the Complainants’ property is classified as Code-I I; Category-”Household
units” and therefore, Class A. 35 I.A.C., Ch. I, Part 901, Ap. B.
9.
That Section 901.102 of the noise regulations prohibits emission of sound that
exceed specified levels from any source located on any Class A, B or C land to
any Class A.
10. That sounds emitted from Class U properties, such as expressways, are not
regulated. The Board has not established any limits on the sound level from Class
U properties. like the toliway, expressways, freeways and street.
11. That the Board has limited its regulations to the sounds emitted from vehicles and
not from roads.
.
12. Therefore, the Tollway has not violated any provisions of the ACT or of provisions
of Chapter I of Subtitle H (noise) of Title 35 sections 901.102-901 .106.
13. That like. the State, the Federal Highway Administration has established a Noise
Abatement Criteria for federally funded highways which set decibel levels to be
designed for. 23 CFR 772.1 et
seq.
That the No!se Abatement Criteria is for
planning and designing highways.
14. That the regulations and statutes regulating noise are similar to those regulating
air pollution. In
Illinois State ToIIHighway Authority v. Karn,
the Appellate Court
ruled that the Tollway does not need to get permits because the Toliway does not
cause the air pollution, rather the vehicles driving on it cause the air pollution. 9
Ill. App.3d 784, 293 N.E.2d 162. Similarly, the Board regulates the sound levels
from cars but not from roads.
15. That the impact of noise pollution on adjoining property is part of the design of
highway project and noise is to be considered prior to construction and not
regulated after construction. The Board’s silence on Class “U” type property is
obviously due to the realization that sound control from. highways is a function of
design and planning and not post construction noise regulation.
16. Based upon the above, the Complaint fails to state a cause of action upon which
the Board can grant relief. The regulations recognize that noise pollution from
right-of-way is to be considered in the design and planning of highway projects.
Once right of way is constructed, the regulations omit them but regulate the sound
levels emitted by vehicles. Therefore there is no legal basis for the Board to act.
17. Additionally, the Complaint fails to allege what regulatorycriteria that was violated.
The Board established sound levels which must be complied. Since no sound
levels are applicable to the Tollway, no violation can occur. The Complaint alleges
subjective criteria for the Board to act upon. The relief sought is to maximize the
wall height to minimize the sound level. The Board has the authority to order the
Tollway to meet the Board’s sound level regulations for sounds emitted from “U”
type properties to “A” type properties. Since no such standard exists, the
Complaint fails to allege a cause of action from which the Board can grant relief.
WHEREFORE, Respondent, Illinois State Toll Highway Authority, prays that the
Complaint be dismissed.
Illinois State Toll Highway Authority
By:________
Victor . zar
Assistant Attorney General