BEFORE THE
ILLiNOIS POLLUTION CONTROL BOARD
PAUL AND DONNA FREDRICKSON,
husband and wife,
V.
JEFF GRELYAK,
Respondent.
Complainants
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PCBO4-19
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KS OFFICE
2005
NOIS
Board
RESPONSE TO RESPONDENT’S MOTION
FOR SUMMARY JUDGMENT
Complainant,
DONNA
FREDRICKSON, by and through her attorneys, MILITELLO,
ZANCK & COEN, and in response to Complainant’s Motion for Summary Judgment,
hereby states as follows.
1.
Complainant admits the allegations in paragraph 1.
2.
Complainant admits the allegations in paragraph 2.
3.
Complainant denies the allegations of paragraph 3.
Complainant, in
Complainant’s Response to Second Request to Admit, admitted that Respondent’s
property consisted ofa closed course, designed for use of off-highway vehicles in events
such as, but not limited to, dirt track or other contests ofa side-by-side nature in sporting
event for practice, instruction, testing, or competition of off-highway vehicles; or a
thoroughfare or track across land or snow used for off-highway motorcycles or all-terrain
4.
Complainant admits the allegations in paragraph 4.
5.
Complainant states that she lacks sufficient knowledge to know exactly when the
activity began on Respondent’s premises.
6.
Complainant denies the allegations in paragraph 6. It is clear by the legislative
intent of 740 ILCS 130/4.1(b), as documented in Illinois Senate transcripts, that this law
was enacted to prohibit civil claims against parks, State parks, and recreation facilities,
which, at the time of enactment, were growing in popularity with the State ofIllinois. In
addition, the law was enacted to prevent encroaching developments from necessarily
closing down existing riding facilities. This law should not ~beconstrued to give free
license to property owners to openly violate the Environmental Protection Act and Title
35
ofthe Illinois Administrative Code.
vehicles.
Illinois Senate discussion on May
5,
2002 states that “riding facilities” were
contemplated to mean those areas granted State funds under the Recreational Trails Act
of Illinois and further changed the original language from “those areas licensed under the
Illinois Department of Natural Resources.” To Complainant’s knowledge, Respondent
has not been granted funds under the Recreational Trails Act of Illinois and has not been
licensed to operate an off-road facility by the Illinois Department of Natural Resources.
Therefore, Respondent’s argument that 740 ILCS 130/4.1(b) applies to any area where
motorcycles and all-terrain vehicles operated prior to January 2002, is overbroad and
fallacious and this private property does not qualif~ras an off-road riding facility.
The Illinois Pollution Control Board (IPCB), as a quasi-judicial body, is not
bound by 740 ILCS 130/4.1(b). The IPCB, having adopted Title 35 of the Illinois
Administrative Code, is authorized to conduct hearing on any complaints charging
violations of the Act or of regulations thereunder. Therefore, irrespective of 740 ILCS
13 0/4.1(b), the IPCB has a right and a duty to hear this case and decide on the merits of
the matter.
Furthermore, Complainants alleged in their Formal Complaint that Respondent is
in violation of Section 9 of the Illinois Environmental Protection Act (415 ILCS
5/9),
which states in relevant part that no person shall:
(a) Cause or threaten or allow the discharge or emission of any
contaminant into the environment in any State so as to cause or tend to
cause air pollution in Illinois, either alone or in combination with
contaminants from other sources, or so as to violate regulations or
standards
adopted
by
the
Board
under
this
Act;
(b)Construct, install, or operate any equipment, facility, vehicle, vessel,
or aircraft capable of causing or contributing to air pollution or designed to
prevent air pollution, ofany type designated by Board regulations, without
a permit granted by the Agency, or in violation ofany conditions imposed
by such permit.
This Act was in full force and effect at the time Respondent claims to have initiated use
of his property as a “riding facility.” Therefore, by constructing and operating a
“facility” capable of causing or contributing to air pollution without a permit issued by
the Illinois Environmental Protection Agency, Respondent had no right to use his
property in such a way and has no right to continue to operate said “facility” which
causes or threatens the discharge of contaminants into the environment and further, has
no right to any protections afforded such facility under Illinois statute.
Complainants also state that the IPCB, in Kamholz v. Sporleder, 2002 041,
rendered a cease and desist order against the Sporleders under circumstances which are
nearly identical to this case. In coming to that decision, the IPCB considered the
following factors in their decision ofthe case:
i.
The character and degree of injury to, or interference with the
protection of the health, general welfare and physical property of the
people;
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The social and economic value ofthe pollution source;
iii.
The suitability of the pollution source to the area in which it is
located, including the question ofpriority oflocation in the area involved;
iv.
The technical practicability and economic reasonableness of
reducing or eliminating the emissions, discharges or deposits resulting
from suchpollution source; and
v.
Any subsequent compliance. 415 ILCS
5/33(c)
(2002).
Granting of the Respondent’s Motion for Summary Judgment would arbitrarily deny
Complainants the right to be heard and the right to seek relief for multiple violations of
the Environmental Protection Act and Illinois Administrative Law, based in part, upon
those factors listed above.
WHEREFORE, Complainants respectfully request that the Motion for Summary
Judgment be denied and that the Board sets this case for trial.
Dated this 22nd day ofMarch, 2005.
Jeremy W. Shaw
MILITELLO, ZANCK & COEN, P.C.
40 Brink St.
Crystal Lake, IL 60014
(815)459-8800
Respectfully submitted,
MILITELLO, ZANCK & COEN, P.C.,
Attorneys for Corn lainant
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STATE OF ILLINOIS
POLLUTION CONTROL BOARD
100 W. RANDOLPH STREET, SUITE 11-500
CHICAGO, ILLINOIS 60601
CLE~S
I
P
NOTE:
All items must be completed. Ifthere is insufficient space to complete any item, additional
sheets may be attached, specif~iingthe numberofthe item you are completing. Once completed, you
must file the original and nine copies with the Board.
BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
PAUL AND DONNA FREDRICKSON,
husband and wife
Complainants
Respondent.
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PCB4-19
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PROOF OF SERVICE
TO:
Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Bd.
James R. Thompson Center
Suite 11-500
100 W. Randolph Street
Chicago, IL 60601
George W. Tinkham
Attorney for Respondent
423 W. Vine Street
Springfield, IL 62704
Fax: 217-744-1711
Attached is a Response to Respondent’s Motion for Summary Judgment.
Respectfully submitted,
Jeremy W. Shaw
MILITELLO, ZANCK & COEN, P.C.
40 Brink Street
Crystal Lake, IL 60014
(815)
459-8800
MILITELLO, ZANCK & COEN, P.C.
Attorneys for Complainants
V.
JEFF GRELYAK,
PROOF OF SERVICE
STATE OF ILLINOIS
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SS
COUNTY OF McHENRY
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The undersigned states, under oath, that she served the above Notice, together with the
documents referred to therein, via facsimile transmittal s noted at approximately
~ ~
p.m. and by
mailing copies ofthe same to the service list above by depositing the same in the U.S. mail at Crystal
Lake, Illinois, with proper postage fully prepaid, at approximately 5:00 p.m. on the 22’~’day of
March, 2005.
SUBSCRIBED and SWORN to before
me this 22’~’day ofMarch, 2005.
Notary Public
3
~IZA~ETHL
DORs~g~
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TEo~~Lu~o~s
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t+cK**fl**5*****
—COMM. JOURNAL— aco citric cggcfcjrgcgcfcggcafcg DATE MAR—22—2005 405*4cc TIME 15:5? :k*******
MODE = MEMORY TRANSMISSION
START=MAR—22 15:54
ENO=MAR—22 15:5?
FILE
NO.=1?5
STN
COMM.
ONE—TOUCH/
STATI ON NAME/TEL NO.
FADES
OLEATI ON
NO.
A8ER NO.
001
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12122441211
005/008
00:01:42
—M IL! TELLO
ZANCK
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COEN
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315 459 8429— **:l:***;+clolc
MIUTELLO, ZANCK & CORN, P.C.
AT~0RNEYSATLAW
James
C. Militello
40 Brink Street
Nancy Stingin Pnrko~ki
Thomas
C.
Zanck5
Crystal Like, Illinois 600i4
David Cl. Phannic?
PatrickD. Conir
0154594000
Jill 1. Struck
James L. Wright
Faa
815-459-9429
Cathcrinc Keating-Howard
Mai* .5. Saladin
Jsrcniy W. 5Mw
Jam,s
C. Militello Ill
Adrian hi. Coach
A1,o lic,n:,d is Wisconsin
5Mwtsscsce
is Miica,ai
~X COVER SHEET
DATE:
March 22,
2005
No. of Pages: ~
TO:
George W. Tinkham
FROM:
Jeremy V. Shaw
RE:
Fredrickson v. Grelyak
Attached please find a Proof of Service and Response to Respondent’s Motion for Summary Judgment
regarding the above-referenced matter.
PLEASE N013i
THE
FACSIMILE COMMUNICATION ACCOMPANYING
THIS
COVER SHEET JS
INTEI’fl)ED
ONLY FOR THE
USE OF
THE
INDIVIDUAL OR ENTITY TO
WHOM
IT IS ADFDRESSEi) AN!) MAY CONTAIN INFORMATION
THAT IS CONFIDENTIAL.
ANY
DISSEMINATION,
DISTRIBUTION
OR COPYING OF n-rn ATTACHED
COMMUNICATION IS STRICTLY PROHIBITED. IF YOU ARE NOT
THE
INTENDED
RECIPIENT, PLEASE
NOTIFY US IMMEDIATELY BY TELEPHONE AND RETURN THE DOCUMENTS TO US BY UNITED STATES
MAIL.
THANK YOU,
Transmitted to Fax No.:
217-744-1711
