RECEIVED

CLERK’S OFFICE

MAY

&

2004

BEFORE

THE ILLINOIS POLLUTION

CONTROL BOAl~ATEOF

ILLINOIS

Pollution Control Board

BARBARA STUARTand RONALD STUART,

)

)

Complainants,

)

vs.

)

No.

PCB 02-164

)

Citizen Enforcement

FRANKLiN FISHER and PHYLLIS FISHER,

)

Respondents.

NOTICE OF FILING

TO:

Dorothy M. Gunn, Suite 11-500, 100 W. Randolph St., Chicago, IL 60601

Bradley P. Halloran, Suite 11-500, 100 W. Randolph

St., Chicago, IL 60601

David G. Harding, Attorney at Law,

100 N. LaSalle St.,

Barbara & Ronald Stuart, 213 E. Corning Road, Beecher, IL

60401

PLEASE

TAKE

NOTICE

that I have, on May~2004, filed with the Office ofthe Clerk

of the Pollution Control Board

the County of Will’s

Amicus

Curiae Brief,

a

copy of which is

herewith served upon you.

~

Bobbi N. Petrungaro, Assistà~~tate’s

Attorney

OFFICE OF

THE STATE’S ATTORNEY

Will

County, Illinois

Jeff Tomczak,

State ‘sAttorney

121

N. Chicago St.

Joliet, IL

60432

Telephone:

815-727-8872

PROOF OF

SERVICE

The undersigned certifies that a copy ofthis instrument and any attachments thereto were served

on the above listed parties ofrecord in the above captioned cause by enclosing the same

in an envelope

parties attheir address as disclosed by the pleadings ofrecord herein,with postage fully prepaid, and by

depositing said envelope in a U.S. Post Office Mail Box in Joliet, Illinois, on the ~day

ofMay, 2004.

~i

~

Subscribed

and sworn to before me

.thi~

~day

ofMay, 2004.

______________________

~

~

Notary Public

-j

-~

---

RECEIVED

CLERK’S OFFICE

BEFORE THE ILLINOIS POLLUTION CONTROL

BOARD

MAY

-

62004

STATE OF ILLINOIS

BARBARA

STUART and

)

Pollution

Control Board

RONALD

STUART,

)

Complainants,

)

)

vs.

)

No.

PCB 02-164

)

Citizen Enforcement

FRANKLIN FISHER,

)

Respondent,

)

Amicus

Curiae Brief of

County

Of Will

NOW COMES the County of Will, and for its

amicus curiae brief

states as

follows:

The County of Will enacted ordinances with provisions similar to those contained

within the Illinois Environmental Protection Act relative to

its noise ordinance and

vibration ordinance.

The County ofWill has determined that

such ordinances are

necessary and proper to protect the health and safety of the residents, as well as to protect

theirproperty values.

Generally, the County’s nuisance ordinance is to assist the public

welfare ofthe people ofthis county. (A copy ofthe Noise and Vibration Ordinances is

attached hereto as Exhibit A.)

Since 2001, the Will County Land Use Department has received numerous

complaints relative to the Respondent’s use ofpropane cannons.

Specifically, the

Complainants have repeatedly noted that the use of these propane cannons disturbs the

peace oftheir home, their pets, and their children. The Will

County Sheriff’s Department

did take readings ofthe propane cannons in the summer of 2002.

Although the noise and

vibration levels ofthe propane cannons did not register high enough to violate the

---

technical provisions ofthe County ordinances, it is the position ofthe County ofWill that

these propane cannons violate the spirit ofthe ordinance.

It is further the position ofthe

County of Will that these devices have not been proven to

be effective and in fact, that

these propane cannons are a nuisance to the health, safety and public welfare ofthe

people ofthis County.

WHEREFORE, the County of Will respectfully requests that this Board find in

favor of the Complainant and against the Respondent.

Respectfully submitted,

JeffTomczak

Will County State’s Attorney

By:

Bobbi N. Petrungaro

121

N. Chicago St.

Joliet,

Illinois 60432

(815)727-8872

---

Public

Nuisances

31

constitute a public

nuisance, or in such a manner that

the litter

may

be blown

or otherwise

carried by

the

natutal elements

onto the property of another person.

(Res.

92-248,

passed

11-19-92:

Am.

Res.

99-210,

passed

5-20-99)

93.059

ABANDONMENT

C~F

MOTOR

VEHICLE;

PRESUMPTION.

No person shall abandon a motor vehicle on

any

highway or any public property of which he or she is

not

the

owner

or

tenant

in

lawful

possession

in

unincorporated

areas

of the

county.

The

person to

whom

the

certificate

of title

to

the

vehicle

last

was

issued

by

the

Secretary of State is presumed to be the

person

to

have

abandoned

the

vehicle,

but

such

presumption

may

be

rebutted.

(Res.

92r248,

passed

11-19-92;

Am.

Res.

99-210,

passed 5-20-99)

§

93.060

VIOLATION;

PENALTY.

Persons

who

violate

any

of

§~

93.056

through

93.059 are subject to penalties

set out

in this

section.

(A)

Any

person

convicted

of

a

violation

of

§~

93.056

through

93,059

is

guilty

of

a

Class

B

misdemeanor.

A

second

conviction

for

an

offense

committed

after

the

first

conviction

is

a

Class

A

misdemeanor.

A

third

or

subsequent

violation

committed

after

a

second

conviction

is

a

Class

4

felony.

(B)

In addition

to

any

fine

imposed under

this

section, the court may order that the person convicted

of such a

violation

remove

and

properly

dispose

of

the

litter,

may

employ

special

bailiffs

to

supervise

such removal

and disposal,

and may tax

the

costs

of

such

supervision

as

costs

against

the

person

so

convicted.

(C)

The

penalties prescribed

in this

section are

in

addition

to,

and

not

in

lieu

of,

any

penalties,

rights,

remedies,

duties

or

liabilities

otherwise

imposed

or conferred

by

law.

(Res. 99-210, passed 5-20-99)

§

93.070

AU~HORITY.

The

provisions

of

this

subchapter

are

enact&l

pursuant

to authority given by

ILCS Ch.

720,

Act

5,

§

47-5.

(Res.

94-229,

passed

1-19-95; Am. Res.

99-210,

passed 5-20-99)

§

93.071

PURPOSE.

The provisions

ofthis

subchapter are

enacted to

define and abate

noise as a public nuisance. Noise as

defined

herein

as

a public

nuisance

is detrimental

to

safety health

and public welfare

of the

people of this

county and should b~

enjoined as necessary to proteàt

the public.

(Res.

94-229,

passed

1-19-95;

Ar~.Res.

99-210,

passed 5-20-99)

§

93.072

PUBLIC NUISANCE.

(A)

It

‘is

hereby

declared

that

any

person

or

business entity

who

engages

in

any

act which

causes

to

be

emitted

a

loud,

unreasonable

or unnecessary

noise

which

injures

or

endanger~or

diminishes

the

health, peace,

safety or welfare ofot~hersis

a nuisance

for which legal remedies

shall

be available.

(B)

It

is

further

declared

that

no

person

or

business

entity

shall

cause or

allow

the

emission of

sound beyond the boundaries ofhis or her property as

prohibited by

the provisions

of 35

Ill.

Admin.

Code,

Ch.

1

§

900.1

et

seq.

as

presently

enacted

or

subsequently

amended,

shall

be

deemed

a

public

nuisance

from

which

legal

remedies

shall

be

available.

(Res.

94-229,

passed

1-19-95;

Am.

Res.

99-210,

passed 5-20-99) Penalty,

see

§

93.999

§

93.073

DEFINITIONS.

The

definitions

of

35

Ill.

Admin.

Code,

titled

“Environmental

Protection,”

subtitle

H,

titled

NOiSE

I

2000

S-18

EXHIBIT A

---

32

Wifi

County

-

General Regulations

“Noise,” Chapter 1, titled “Pollution Control Board,”

as presently promulgated or hereinafterpromulgated,

are

adopted

and

incorporated

as

if

fully

rewritten

herein.

(Res.

94-229,

passed

1-19-95; Am.

Res.

99-210,

passed 5-20-99)

§

93.074

MEASUREMENT

PROCEDURES.

The.measurement procedures of 35

III. Admin.

Code,

titled

“Environmental

Protection,”

subtitle

H,

titled “Noise,”

chapter

1,

titled

“Pollution Control

Board,”

Part

901,

titled “Sound Emission

Standards

and Limitations for Property Line-Noise-Sources,”

as

presentlypromulgated or hereinafter promulgated are

adopted and

incorporated as if fully

rewritten herein.

(Res. 94-229, passed

1-19-95; Am.

Res. 99-210,

passed 5-20-99)

§

93.075

ENFORCEMENT.

The

responsibility

for the enforcement of the

provisions

of this

subchapter

shall

be

with

the

Will

County

Sheriff’s

Police.

The

Will

County

Sheriff

shall have theresponsibility

to

enforce division (A) of

§

93.072.

The

enforcement

of

division

(B)

of

the

section shall be with either the Will County Sheriff or

the

Administrator

of the

Building

and

Zoning

Code

who

is

hereby

designated

as

the

enforcing

officer.

Any

employee

of

the

departments

shall

have

the

authority for enforcement authorized by the Sheriff or

the Administrator.

(Res.

94-229,

passed

1-19-95;

Am.

Res.

99-210,

passed 5-20-99)

§

93.076 REMEDIES.

Any person owning, leasing or possessing ofthe

subject property

on

which

a

nuisance,

as

defined by

this

subchapter,

exists

is

subject

as follows:

(A)

May be issued a non-traffic complaint ticket

by

an

authorized

person

in

his

or

her

official

capacity.

Each

day

the

violation

occurs

is

to

be

considered

a separate violation.

(B)

May be

subject to

injunctive

relief brought

by

Will County through,~itsproper representative and

be

subject

to

the

~s~es~mentsof

costs

and

fees

associated

with such litigation.

(Res. 99-210, passed 5-20-99)

§

93.077

POWER AND DUTIES

OF THE STATE

AUORNEY’S OFFICE.

The

State

Attorney’s

Office

shall

act

as

an

attorney

for the

county and

shall have the following

authority:

(A)

Prosecute

any violations

of this

subchapter

in the

circuit

court of the

county.

(B)

Seek

injunctive

relief

against

any

person

owning,

leasing or possessing

subject property ‘in the

circuit

court of the county.

(Res.

94-229,

passed

1-19-95;

Am.

Res.

99-210,

passed 5-20-99)

§

93.090

AUTHORITY.

The

provisions

of this

subchapter

are

enacted

pursuant to

authority

given by

ILCS

Ch.

720

Act 5,

§

47-5.

(Res. 99-210, passed 5-20-99)

§ 91.091

PURPOSE.

The provisions of this

subchapter are enacted

to

define

and

abate

excessive

vibrations

as

a

public..

nuisance.

Excessive vibrations

as defined herein are

a public

nuisance and

are

detrimental

to

the

safety,

health and public

welfare of the people of the

county

and

should

be

enjoined

as

necessary

to

protect

the

public.

(Res.

94-229,

passed

1-19-95; Am.

Res.

99-210,

passed 5-20-99)

VIBRATION

.

I’

.

2000

S-18

---

j

Ii,

§

93.092

PUBLIC NUISANCE.

It

is

declared

that

no

person

or business entity

shall

~ause

or

allow

the

emission

of

excessive

vibrations

beyond

the boundaries

of his

property as.

prohibited by the provisions

of this

subchapter.

(Res.

94-229,

passed

1-19-95; Am.

Res.

99-210,

passed

5-20-99)

§

93.093

DEFINITIONS.

For

the purpose

of this

chapter,

the

following

definitions

shall

apply

unless

the

context

clearly

indicates or requires

a different

meaning.

AMPLITUDE.

The maximum

displacement

of

the earth from the normal rest position. Displacement

is usually

reported

as

inches or miles.

DiSCRETE

IMPULSES.

A ground transmitted

vibration

stemming

from

a

source

where

specific

pulses

do

not

exceed

60

per

minute

(or

one

per

second).’

FREQUENCY.

The

number

of times

that

a

displacement

completely

repeats itself in

one

second

of time.

Frequency

may

be

designated

in

cycles per

second (cps) or Hertz.

IMPACT.

An

earthborn

vibration

generally

produced by

two

or more

objects striking

each other

so

as to

cause

separate

and

distinct

pulses.

NiGHTTIME

HOURS.

The

hours

of

10:00

p.m.

to

7:00 a.m.

local

time.

PARTICLE

VELOCITY.

A

characteristic

of

vibration

that

depends

on

bath

displacement

and

frequency.

If

not

directly

measured,

it

can

be

computed

by

multiplying

the

frequency

by

the

amplitude times the factor 6.28. The particle velocity

will

be

in

inches

per second,

when

the

frequency

is

expres~edin

cycles per

second

and

the

amplitude

in

inches.

SEISMOGRAPH.

An

instrument

which

measures

vibration characteristics

simultaneously

in

three mutually~rj~ndicu1ar planes.

The seismograph

may

measure

displacement

and

frequency,

particle

velocity,

or

acceleration.

STEADY

STATE.

A

vibration

which

is

continuous,

as

from a

fan compressor or motor.

WBRL4~tION.

A

reciprocating

motion

transmitted through

the earth, both

in

horizontal

and

vertical plahes.

(Res.

94-229,

passed

1-19-95;

A~n.Res.

99-210,

passed 5-20-99)

§

93.094

INSTRUMENTATION.

Ground-transmitted vibration shall b~

measured

with a seismograph or complement of

instI~uments

capable of recording vibration displacement,

particle

velocity,or acceleration and frequencysimultaneously

in three mutual

perpendicular directions,

(Res.

94-229,

passed

1-19-95,

Am.

Res.

99-210,

passed 5-20-99)

§

93.095

MAXIMUM PERMITTED VIBRATION

LEVELS.

.

(A)

Table

I

designates

the

applicable

lines

of

Table

2

that

apply

on

or

beyond

adjacent

lot

lines

within the zone, and

on or beyond appropriate district

boundaiies. Vibration

shall

not exceed the maximum

permitted particle velocities

in Table

2. Where more

than

one

set

of

vibration

levels

apply,

the

most

restrictive

shall

govern.

Readings

may

be

made

at

points ofma.ximum vibration intensity. Districts shall

be defmed as in the Will County Zoning Ordinance as

it

is

presently

enacted

or

hereinafter

modified

as

follows:

R

-

Residential E1-2,

Ri-6

C

-

Commercial

C1-6

I

-

Industrial

11-3

Public Nuisances

32.A

2000

S-18

---

32B

Will County

-

General Regulations

1—1

1-2,

3

§

93.097

REMEDIES.

Any

person

owning,

leasing

or possessing bf the

subject

property

on which a nuisance

as

defined by

this

subchapter exists

is

subject

as

follows:

(A)

May be issued a non-traffic complaint ticket

X

-

X

X

by

an

authOrized

person

in

his

or

her

official

X

Y

—

--

capacity.

Each

day

the

violation

.occurs

is

to

be

X

Y

Z

—

considered

a, separate violation.

TABLE

1

STEADY-STATE

VIBRATION

LIMITS

Peak Particle

V~locity

(inches

per

second)

Vibration

Limit

I

Daytime

Nighttime

X

0.03

0.01

Y

0.06

0.06

Z

0.26

0.20

(C)

The

maximum particle

velocity

shall

be

in

the

maximum

vector

sum

of

three

mutually

perpendicular components

recorded

simultaneously.

Particle velocity

may also be expressed as 6.28

times

the

displacement

in

inches

multiplied

by

the

frequency in

Hertz (cycles per

second).

(D)

For

purposes

of this

section,

steady-state

vibrations

are

vibrations

which

are

continuous.

Vibrations in discrete impu~sesmore frequentthan 60

per minute

shall be considered

impact vibrations.

(Res.

94-229,

passed

1-19-95;

Am.

Res.

99-210,

passed 5-20-99)

§

93.096

ENFORCEMENT.

The enforcement of these

provisions

shall

be

with

either

the

Will

County

Sheriff

or

the

Administrator of

the

Building

and

Zoning Code who

is

hereby

designated

as

the

enforcing

officer.

Any

employee

of the department

shall have

the

authority

for

enforcement

if

authorized

by

the

Sheriff

or

Administrator.

(Res.

99-2 10, passed 5-20-99)

(B)

May be, subject to

injunctive

relief brought

by the county through its proper representative and be

subject to the assessments of costs and fees associated

with

the litigation,

(Res.

94-229,

passed

1-19-95;

Am.

Res.

99-~10,

passed 5-20-99)

§ 93.098

POWER AND DUTIES

OF THE STATE

ATTORNEY’S

OFFICE.

The

State

Attorney’s

Office

shall

act

as

an

attorney

for

the

county

and

shall

have

the following

authority:

(A)

Prosecute

any

viOlations

of this

subchapter

in the

circuit court of the

county.

(B)

Seek

injunctive

relief

against°any

person

owning,

leasing or possessing subject property

in the

circuit

court of the county.

(Res

94-229,

passed

1-19-95;

Am.

Res.

99-210,

passed 5-20-99)

§

93.999

PENALTY.

,

(A)

A

violation

of

§

93.072

(A)

is

a

petty

offense for which the violator shall pay

a fine of not

less

than

$25.00

nor more

than

$100.00,

and

the

court

costs

of prosecution.

(B)

A

violation

of

§

93.072

(B)

is

a

petty

offense

for which the

violator

shall pay

a fine of not

less

than

$100.00

nor

more

than

$500.00,

and

the

court

costs of prosecution.

(Res.

99-210, passed 5-20-99)

TABLE

1

AJ~PLICABLE

LINES

OF TABLE

2

Emitting

to

From

District

R

C

1-1,

1-2,

3

Lot

Line

Adjacent

x

Z

.

2000

S-18