ILLINOIS POLLUTION CONTROL BOARD
    October 11, 1990
    JOSEPH P. COMER and
    )
    MICHELLE S. COMER d/b/a
    )
    FLAMINGO LAKE,
    )
    )
    Complainants,
    )
    PCB 90-145
    )
    (Enforcement)
    v.
    )
    )
    GALLATIN NATIONAL CO.,
    )
    )
    Respondent.
    )
    ORDER OF THE BOARD (by J. Anderson)
    This matter is before the Board on Respondent Gallatin
    National Co.'s ("Gallatin") Motion to Dismiss filed August 13,
    1990. Complainants filed their response on September 19,
    1990. The Respondent's motion argues that the Complaint filed
    is duplicitous and frivolous. For reasons given below, the
    motion is denied.
    The Respondent's motion requests dismissal because the
    complaint "fails to state a claim upon which relief can be
    granted." The Complaint requests relief for sound emissions
    which emanated from construction of Respondent's balefill.
    The emissions stopped over one year ago. Gallatin claims that
    the Board cannot grant relief for violations which have now
    ceased. In this regard, Gallatin is mistaken. These claims
    are not barred by any statute of limitations that Gallatin has
    shown us.
    Gallatin also claims the matter is frivolous because it
    requests injunctive relief which is prospective only. Our
    review of both the Complaint and Response reveals that the
    Complainants ask for finding of violations based upon
    Gallatins' prior conduct and also request relief related to
    noise emissions expected from future construction activities.
    The Board may not grant prospective injunctive relief for
    noise violations.
    (See Section 24 of the Illinois
    Environmental Protection Act, Ill. Rev. Stat. 1989, ch. 111
    1/2, par. 1024). It may, however, issue a cease and desist
    order if past violations are proven as alleged. Therefore,
    the Board does not find the Complaint to be frivolous.
    Lastly, Gallatin claims the complaint is duplicitous
    because its development permit currently pending discusses
    steps it will take to monitor sound emissions levels near
    Complainant's property. The Board finds this circumstance
    irrelevant to its determination on this matter.
    2
    For the above reasons, Gallatin's Motion to Dismiss is
    denied.
    IT IS SO ORDERED.
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution
    Control Board, do hereby certify that the above Order was
    adopted on the
    day of
    , 1990, by a
    vote of
    .
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

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