ILLINOIS POLLUTION CONTROL BOARD

APPLICABLE LAW
1. STANDARD OF DECISION
MR. GRELYAK’S MOTION FOR SUMMARY JUDGMENT
THE FREDRICKSONS’ RESPONSE
BOARD ANALYSIS
CONCLUSION

May 5, 2005

PAUL AND DONNA FREDRICKSON,

(Citizens Enforcement – Noise, Air)

ORDER OF THE BOARD (by N.J. Melas):

Today’s order addresses the respondent’s motion for summary judgment filed on

March 4, 2005, and the complainants’ response, dated March 23, 2005.

On August 8, 2003, Mr. Paul and Mrs. Donna Fredrickson (the Fredricksons) filed a

complaint against Mr. Jeff Grelyak.

See

415 ILCS 5/31(d) (2002). The Fredricksons allege that

Mr. Grelyak violated Section 9(a) of the Environmental Protection Act (Act) and Sections

900.102 and 901.102(a) of the Board’s noise regulations. 415 ILCS 5/9(a) (2002); 35 Ill. Adm.

Code 900.102; 901.102(a). The Fredricksons further allege that Mr. Grelyak violated these

provisions by continually operating ATVs and motorcycles on his property, causing noise dust

and fumes to travel onto the Fredricksons’ property. The complaint concerns Mr. Grelyak’s

residence located at 8915 Ferris Road in Harvard, McHenry County. The Board accepted this

matter for hearing on September 18, 2003.

Mr. Grelyak filed a motion to dismiss

instanter

on September 17, 2003, and the

Fredricksons responded on September 26, 2003. On October 16, 2003, the Board denied Mr.

Grelyak’s motion to dismiss and ordered the parties to proceed to hearing.

For the reasons set forth below, the Board denies Mr. Grelyak’s motion for summary

judgment and orders the hearing officer to proceed expeditiously to hearing.

APPLICABLE LAW

Section 9(a) of the Act prohibits the violation of any Board air standards or regulations.

Section 201.141 of the Board's regulations similarly sets forth a prohibition against causing air

pollution in violation of any Board regulation or air quality standard. 415 ILCS 5/9(a) (2002);

35 Ill. Adm. Code 201.141.

Section 24 of the Act provides that:

No person shall emit beyond the boundaries of his property any noise 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 (2002).

Similarly, the Board's noise nuisance prohibition is found at Section 900.102 and

provides:

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 [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 901.102(a) prohibits the emission of sound during daytime and nighttime hours

from any property-line-noise source located on Class A land to any receiving Class A land in

access of certain numeric limitations at each of nine different frequencies. 35 Ill. Adm. Code

901.102(a).

STANDARD OF DECISION

Summary judgment is appropriate when the pleadings and depositions, together with any

affidavits and other items in the record, show that there is no genuine issue of material fact and

that the moving party is entitled to judgment as a matter of law. Dowd & Dowd, Ltd. v. Gleason,

181 Ill. 2d 460, 693 N.E.2d 358 (1998); People v. City of Waukegan, PCB 01-104, slip op. at 2

(Aug. 23, 2001). In ruling on a motion for summary judgment, the Board “must consider the

pleadings, depositions, and affidavits strictly against the movant and in favor of the opposing

party.” Dowd, 181 Ill. 2d at 483, 693 N.E.2d at 370; Waukegan, PCB 01-104, slip op. at 2.

Summary judgment “is a drastic means of disposing of litigation,” and therefore it should

be granted only when the movant's right to the relief "is clear and free from doubt." Dowd, 181

Ill. 2d at 483, 693 N.E.2d at 370; citing Purtill v. Hess, 111 Ill. 2d 229, 240, 489 N.E.2d 867, 871

(1986). Even so, while the nonmoving party does not have to prove its case, it must “present a

factual basis which would arguably entitle [it] to a judgment.” Gauthier v. Westfall, 266 Ill.

App. 3d 213, 219, 639 N.E.2d 994, 999 (2nd Dist. 1994); Waukegan, PCB 01-104, slip op. at 2.

The Board's procedural rules provide that “if the record, including pleadings, depositions

and admissions on file, together with any affidavits, shows that there is no genuine issue of

material fact, and that the moving party is entitled to judgment as a matter of law, the Board will

enter summary judgment.

”

35 Ill. Adm. Code 101.516.

MR. GRELYAK’S MOTION FOR SUMMARY JUDGMENT

In moving the Board to grant summary judgment in his favor, Mr. Grelyak relies

exclusively on Section 4.1(b) of the Illinois Premises Liability Act as a defense to the nuisance

noise allegations. Mot. at 1; citing 740 ILCS 130/4.1(b). Mr. Grelyak states that in pertinent

part, Section 4.1(b) of the Premises Liability Act states: “An owner or operator of a off-road

riding facility is not subject to any action for public or private nuisance . . . .”

. Mr. Grelyak

concludes that because this matter constitutes an “’action for public or private nuisance,’” the

Board should rule in favor of the respondent and deny any and all relief requested by the

Fredricksons. Mot. at 2.

THE FREDRICKSONS’ RESPONSE

In response, the Fredricksons state that the Board is not bound by the Premises Liability

Act and has no authority to find violations thereunder. Resp. at 1. The Fredricksons state that

Illinois Senate transcripts show that the Premises Liability Act applies to “prohibit civil claims

against parks, State parks, and recreation facilities.”

. The Fredricksons claim that the areas

regulated by the Premises Liability Act are areas granted State funds under the Recreational

Trails Act of Illinois.

. at 2. Further, the complainants state that Mr. Grelyak has not

demonstrated that he has 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.

Nonetheless, the Fredricksons state that the Board is authorized to conduct proceedings

on alleged violations of the Act and Board regulations found at 415 ILCS 5/1

et seq

. and 35 Ill.

Adm. Code. As an example of a citizens’ noise enforcement case alleging violations of the Act

and Board regulations resulting from the operation of ATVs and motorcycles on neighboring

property, the Fredricksons cite to Kamholz v. Sporleder, PCB 02-41 (Feb. 20, 2003).

Accordingly, argue the Fredricksons, the Board must deny the motion for summary judgment

and send the parties to hearing.

BOARD ANALYSIS

The Board denies Mr. Grelyak’s motion for summary judgment. Before addressing the

substantive issues of the motion for summary judgment, the Board begins by discussing several

procedural issues.

First, Mr. Grelyak references a “Complainant’s Response to Second Request to Admit”

which is not attached to the motion for summary judgment or otherwise part of the record.

Second, Mr. Grelyak refers to Exhibits B and C as items attached to the motion, but the Board

finds only one unmarked attachment filed with the motion, the affidavit of Mr. Grelyak. Third,

the Fredrickson’s response, alleging new facts, was not supported by an affidavit. Section

101.242(a) of the Board’s rules governs the contents of motions and states that “[f]acts asserted

which are not of record in the proceeding shall be supported by affidavit. Therefore, the Board

bases its summary judgment determination on the facts alleged in the complaint, and supported

by Mr. Grelyak’s affidavit, which is attached to the motion.

In an October 16, 2003 Board order, the Board found that the Fredricksons adequately

alleged violations of Section 9(a) of the Act and Sections 900.102 and 901.102(a) of the Board’s

noise regulations. Mr. Grelyak did not address the allegations of numerical noise violations in

the motion for summary judgment. Therefore, without further supported facts, the Board cannot

grant judgment in favor of Mr. Grelyak with regard to the allegations of numerical noise

violations under Section 901.102(a).

Regarding the alleged violations of the Act and Board regulations based on unreasonable

interference from air and noise emissions, Mr. Grelyak argues that Section 4.1(b) of the Premises

Liability Act bars these claims. Section 4.1 of the Premises Liability Act states in part:

An owner or operator of a off-road riding facility is not subject to any action for

public or private nuisance or trespass, and no court in this State may enjoin the

use or operation of a off-road riding facility on the basis of noise or sound

emissions resulting from the normal use of the off-road riding facility. 740 ILCS

130/4.1(b) (2002).

The Board has addressed the Premises Liability Act in the past, but only in situations

where the complainant has alleged a

violation

of that statute. Logsdon,

et al.

v. South Fork Gun

Club, PCB 00-177 (July 27, 2000) (holding that even though the Premises Liability Act

addressed noise from firearm ranges, the Board had no authority to hear alleged violations of the

Premises Liability Act); Shephard v. Northbrook Sports Club, PCB 96-206, slip op. at 5 (Sept. 5,

1996); Runyon v. Double D Gun Club, PCB 03-7 (Aug. 22, 2002).

Here, Mr. Grelyak raises the Premises Liability Act as a purported

defense

to the alleged

violations of the Act and Board regulations prohibiting air and noise pollution. The Act and

Board’s regulations, respectively, define “air pollution” and “noise pollution” in terms of

emissions that “unreasonably interfere with the enjoyment of life.” 415 ILCS 5/3.115, 24

(2002); 35 Ill. Adm. Code 900.101.

In a past citizens air enforcement case, the Board found that an Illinois statute barring

nuisance actions against farms did not bar claims of air pollution under the Act against a swine

farm. Gott

et al

. v. M’Orr Pork, Inc., PCB 96-69 at 26 (Feb. 20, 1997). In that case, the

respondent farm claimed that the Farm Nuisance Suit Act (FNSA), which protected farms from

actions alleging “private or public nuisance,” barred complainants’ air pollution claim before the

Board. The Board found, however, that the FNSA did not apply. Complainants in M’Orr Pork

brought a statutory cause of action alleging an air pollution violation, rather than a common law

“public or private nuisance” cause of action.

In M’Orr Pork, the Board noted the Illinois Supreme Court has held that actions under the

Act alleging air pollution are distinct from common law nuisance claims. M’Orr Pork, PCB 96-

69 at 27; citing Incinerator, Inc. v. PCB, 59 Ill. 2d 290, 299, 319 N.E.2d 794, 799 (1974) (the

violations of the Act in question are not defined in terms of nuisances); City of Monmouth v.

PCB, 57 Ill. 2d 482, 485, 313 N.E.2d 161, 163 (1974). The Board also emphasized that although

the FNSA became effective and was amended long after the Act was enacted, the FNSA made

no reference to enforcement actions under the Act, instead referring only to “nuisance” actions.

As the FNSA protects farms, the Premises Liability Act protects off-road riding facilities

from “any action for public or private nuisance.” The Fredricksons, however, rely on the

enforcement provisions of the Act in alleging air and noise pollution, not “public or private

nuisance.” This action before the Board is plainly distinct from one brought in court for

common law nuisance. Further, Section 4.1 of the Premises Liability Act, effective January 1,

2003 makes no reference to enforcement actions under the now 35-year-old Act. Accordingly,

the Board finds that contrary to Mr. Grelyak’s contention, Section 4.1(b) of the Premises

Liability Act does not bar the Fredrickson’s claims of statutory and regulatory violations based

on air pollution and noise pollution.

CONCLUSION

The Board denies Mr. Grelyak’s motion for summary judgment and 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 May 5, 2005, by a vote of 5-0.

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board