ILLINOIS POLLUTION CONTROL BOARD

November 6, 2003

MICHAEL A. PETROSIUS and DARLA G.

PETROSIUS,

Complainants,

v.

THE ILLINOIS STATE TOLL HIGHWAY

AUTHORITY,

Respondent.

)

)

)

)

)

)

)

)

)

)

)

PCB 04-36

(Enforcement – Noise)

ORDER OF THE BOARD (by T.E. Johnson):

On September 25, 2003, Michael A. Petrosius and Darla G. Petrosius (complainants)

filed a complaint against the Illinois State Toll Highway Authority (respondent).

See

415 ILCS

5/31(d) (2002); 35 Ill. Adm. Code 103.204. The complainants allege that the noise from the

traffic using a toll collection/entrance ramp on the northbound side of the 294 tollway in

LaGrange has resulted in a violation of 35 Ill. Adm. Code 900.102 due to the unreasonable

interference with the use and enjoyment of the complainants’ property. The complainants further

allege that the noise during the night interferes with their sleep, endangers the physical and

emotional health and well-being of their children and decreases their property value. The

complainants reside at 7335 Maridon Road, LaGrange, Cook County.

MOTION TO DISMISS

The respondent filed an appearance and a motion to dismiss the complaint as frivolous on

October 7, 2003. In the motion, the respondent asserts that the tollway and the sound wall

adjacent to the tollway each pre-existed the complainants moving into their house. Mot. at 1.

The respondent asserts that section 901.102 of the noise regulations prohibits emission of sound

that exceeds specified levels from any Class A, B or C land, but that the tollway is a Class U

property and not regulated. Mot. at 2. The respondent also argues that the vehicles, not the

tollway, are regulated by the sound levels. Mot. at 2.

The respondent acknowledges that the Board has the authority to order the respondent to

meet the sound level regulations for sounds emitted from Class U to Class A properties, but

argues that since no standard exists, the respondent concludes that the tollway has not violated

any provisions of the Environmental Protection Act (Act) (415 ILCS 5/1

et seq

. (2002)) or of the

noise regulations. Mot. at 2-3.

The respondent maintains that the complainant fails to state a cause of action, and

requests that the Board dismiss the complaint. Mot. at 3.

---

2

In response, the complainants assert simply that the respondents are subject to 35 Ill.

Adm. Code 900.102 as set forth in the complaint. Resp. at 1.

DISCUSSION

The Board denies the respondent’s motion to dismiss. The respondent has made

extensive arguments regarding the classification of the tollway. However, the complaint does

not allege any numerical violations, and instead alleges that the noise from the tollway

constitutes an unreasonable interference. The Board considers this to be a well-pled noise

nuisance complaint under Section 24 of the Environmental Protection Act (Act) (415 ILCS 5/24

(2002)) and Section 900.102(a) of the Board regulations. 35 Ill. Adm. Code 900.102(a). This

allegation may lie regardless of the classification of the property in question.

The Board finds that the complaint meets the content requirements of the Board’s

procedural rules.

See

35 Ill. Adm. Code 103.204(c), (f). Section 31(d) of the Act provides that

“[u]nless the Board determines that [the] complaint is duplicative or frivolous, it shall schedule a

hearing.” 415 ILCS 5/31(d) (2002);

see also

35 Ill. Adm. Code 103.212(a). A complaint is

duplicative if it is “identical or substantially similar to one brought before the Board or another

forum.” 35 Ill. Adm. Code 101.202. A complaint is frivolous if it requests “relief that the Board

does not have the authority to grant” or “fails to state a cause of action upon which the Board can

grant relief.”

Id.

No evidence before the Board indicates that the complaint is duplicative or

frivolous.

The Board accepts the complaint for hearing.

See

415 ILCS 5/31(d) (2002); 35 Ill. Adm.

Code 103.212(a). A respondent’s failure to file an answer to a complaint within 60 days after

receiving the complaint may have severe consequences. Generally, if a respondent fails within

that timeframe to file an answer specifically denying, or asserting insufficient knowledge to form

a belief of, a material allegation in the complaint, the Board will consider the respondent to have

admitted the allegation.

See

35 Ill. Adm. Code 103.204(d). The Board directs the hearing

officer to proceed expeditiously to hearing.

IT IS SO ORDERED.

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

adopted the above order on November 6, 2003, by a vote of 6-0.

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board