ILLINOIS

October

POLLUTION

6,

CONTROL

1994

BOARD

RODNEY B . NELSON, M

.D

.,

)

Complainant,

)

V .

)

PCB 94-247

KANE COUNTY FOREST PRESERVE,

(Enforcement)

BRADLEY SAUER, CHAIRMAN,

)

KANE COUNTY COUGARS

)

)

WILLIAM LARSEN, GENERAL MANAGER,

)

and KANE COUNTY BOARD,

WARREN KAMMERER, CHAIRMAN,

)

)

Respondents .

)

DISSENTING OPINION (by C .A . Manning and J . Theodore Meyer) :

This matter is before the Board on a citizen noise complaint

filed on September 9, 1994 by Rodney B . Nelson III, M .D . (Nelson)

against the Kane County Forest Preserve, Kane County Cougars

(Cougars) and the Kane County Board

. The complainant states that

the firework displays at Elfstrom Stadium cause excessive noise

and that noise is not a necessary part of a professional sporting

activity and therefore not exempt pursuant to Section 25 of the

Environmental Protection Act (Act) . (415 ILCS 5/25 (1992) .)

Pursuant to Section 31(a) of the Act (415 ILCS 5/31(b) (1992))

that

and previous

the complaint

Board

was

precedent,

neither

the

frivolous

majority

nor

of

duplicitous

the Board foundand

set

this matter for hearing . We disagree and would dismiss this

matter as frivolous .

Here the complainant alleges that " . . .firework displays seem

the

to occur

Cougars"

to some

but does

extent

not

during

state

each

how many

and every

home games

home game

there

played

are andby

how many had firework displays

. The complainant alleges only

relation to his residence and only makes the statement that on

August 20, 1994 the " . .

.explosions were forceful enough to create

audible rattling of the windows and contents of my home

." There

displays

is no discussion

or interference

that there

with

is

the

any

use

regularity

of his propertyto

the firework

. In

addition to minimally alleging that he and his family were

disturbed by the firework displays, the complainant has not

alleged that the firework displays violated the Board's numerical

standards set forth at 35 Ill . Adm . Code Part 901 or the nuisance

standard of Section 24 of the Act

. (415 ILCS 5/24 (1992)

.)

Instead, the complaint merely states agreement with the statutory

three

displaysspecific

; August

dates,

20, 1994

times

at

and

10:25durations

p.m . that

of when

lasted

there

twenty

were(20)

minutes,

September

September

2, 1992 at1,101994

:00

at

p.m9.

:30forpten.m . for

(10)

a

minutesbrief

duration

. The

and

complainant fails to describe the location of the stadium in

---

2

policy found in Section 23 of the Act, that "excessive noise

endangers

(1992) .)

physical and emotional health ." (415 ILCS 5/25

Section 31(b) of the Act states that "[u]nless the Board

determines that such complaint is duplicitous or frivolous, it

shall schedule a hearing and serve written notice thereof upon

the person or persons named therein, in accord with subsection

determination

(a) of this Sectionof

"frivolous"

." The Board's

is to

current

ascertain

standard

whether

for

the

therelief

requested can be granted . We believe that this standard is

nothing more than a jurisdictional standard and that the

requested

legislature

us

intended

to determine

a broader

whether

definition

a matter

for

is frivolousthe

Board

.

when it

We believe that this is a frivolous complaint, and a

deficient pleading that should have been dismissed . The

legislature gave the Board the direction to determine whether

claims are frivolous so that alleged violations are not just

filed

legislature

as a means

did not

to

give

aggravate

the Board

or pester

the same

the

authority

respondentsfor. The

enforcement actions brought by the State or by the individual

State's Attorneys . By doing so, we believe the legislature's

filings

intent was

versus

to give

those

the

filings

Board

from

the ability

citizens

to

that

screen

present

out nuisanceactual

environmental harms being perpetrated . In addition, the

legislature in Section 30 of the Act gave the Board the ability

to cause the Agency to investigate those complaints that do

clear

present

intent

environmental

was for the

harmBoard

. We

to

believe

monitor

that

citizen

the legislature'senforcement

actions, to dismiss those that are frivolous to prevent undue

harassment and expense on the part of the respondent and the

State . We believe that the Board's current standard of frivolous

is too narrow and not reflective of the legislature's intent .

Thus, we would have found that this complaint was frivolous and

dismissed the matter .

Additionally we believe that the complaint is deficient in

that it did not plead a violation of the Act or the Board's

rulesthe

prohibition

. The complainant

of noise

does

but

discuss

does not

the

allege

statutory

a violation

policy

of

behindthe

Act or of the Board's numerical standards . Therefore we also

would have dismissed this matter as being deficient .

Claire A . Manning

J

., Theodore Meyer

---

3

Board,

I,

hereby

Dorothy

certify

M . Gunn,

that

Clerk

the above

of the

dissenting

Illinois Pollution

opinion was

Controlfiled

on the

IM-

day of

1994 .

Dorothy M Gunn, Clerk

Illinois ollution Control Board