ILLINOIS POLLUTION CONTROL BOARD
    September 28, 1989
    DANIEL LORDEN AND HELEN LORDEN, )
    )
    Complainants,
    v.
    )
    PCB 89-19
    (Enforcement)
    SHERIDAN SOUTH CONDOMINIUM
    ASSOCIATION,
    Respondent.
    ORDER OF THE BOARD (by J. Marlin):
    This matter comes before the Board upon the September 5,
    1989 referral to it by the Hearing Officer of complainants’ June
    30, 1989 motion to compel discovery. The facts and circumstances
    surrounding the motion are best discussed after a review of the
    history of this proceeding.
    This action is a citizens’ enforcement action filed January
    31, 1989. Complainants Daniel and Helen Lorden (“the Lordens”)
    allege that the 100 South Boulevard Sheridan South Condominium
    Association (“Association”) has violated Section 900.102 of the
    Board’s noise pollution rules by its operation of five central
    air conditioning
    units located “right up against and next door
    to” the Lorden’s home. Section 900.102 does not establish a
    numerical noise standard but is instead a general noise nuisance
    prohibition which states that “no person shall cause or allow the
    emission of sound beyond the boundaries of his property.. .so as
    to cause noise pollution in Illinois, or so as to violate Board
    regulations I”.
    The Lordens are represented by an attorney. The Association
    is represented by its president.
    In response to the Lordens’ request, on April 20 the Hearing
    Officer set a tentative hearing date of June 15. On June 12, the
    Lordens requested continuance of hearing on the grounds that:
    Not enough of the air conditioning units
    in question have been in operation long
    enough during the day to allow for a
    proper reading of the noise. In fact it
    takes at least one week for the readings
    1r)3_53q
    —2—
    to be transcribed and ready for
    presentation at any hearing.
    On June 19, the Hearing Officer entered an Order which,
    among other things, granted a continuance and set a pre-hearing
    conference for June
    23,
    a discovery completion date of August 1,
    and new hearing date of August 10. By Order of June 26, among
    other things the Hearing Officer directed the Lordens to file any
    “motion to compel exemplars of noise outputs” on or before June
    30, and the Association to file any response thereto on or before
    July 14.
    The Lordens filed a motion to compel on June 30. On July
    14, the Association filed a motion for “continuance” seeking an
    extension of time to file a response until August 14 to allow it
    to engage an attorney to represent it and prepare a response. By
    Order of July 19, the Hearing Officer granted the Association’s
    motion, directing
    the Association isj to obtain an
    attorney in this matter and the attorney
    is to file his appearance herein on or
    before August 14, 1989 or the
    Association, will be held in default
    herein.
    The time within which the Association may
    reply to the motion to compel exemplars
    of noise output is enlarged to September
    8, 1989 and Petitioner may reply thereto
    on or before September 29, 1989.
    No appearance or response has ever been filed on behalf of
    the association.
    On September 5, 1989 the Board received a letter from the
    Hearing Officer referring this situation to it for action. The
    Hearing Officer noted that the Association, by its president, had
    refused to turn on its air conditioning units to allow
    complainants’ experts to obtain appropriate noise level
    readings. The Hearing Officer stated that the Association was in
    default under the terms of its Order, and further observed that:
    I realize that it may not be appropriate
    for me to hold the condominium
    association in default, but I feel that
    the enfprcement proceeding will go
    nowhere unless some action is taken to
    compel the condominium association to
    respond appropriately in this proceeding.
    By Order of September 13, 1989, the Board found the
    103--540
    —3—
    Association in violation of the Hearing Officer’s July 19
    Order. The Board nonetheless allowed the Association 10 days in
    which to file an appearance by an attorney and to respond to the
    motion to compel, noting’ that the filings must be received by
    September 25. Again, nothing has been filed by the Association.
    The Board will now address the motion to compel. The
    complainants have been diligent in the pursuit of their case,
    including attempting to bring the matter to hearing and in
    responding to the Association’s discovery requests. In August 18
    responses to interrogatories, the complainants, among other
    things, state that they have made numerous noise complaints to
    the Association and local officials. They state that they have
    been diagnosed as suffering from bruised ear drums as a result of
    wearing two sets of ear plugs to filter noise. They state that
    they have had some noise measurements made by two
    noise/acoustical experts (including one employed by the Illinois
    Environmental Protection Agency) but that these are incomplete
    because of the Association’s refusal to turn on the five air
    conditioning units. They state that the noise prevents them from
    keeping windows open, using the back yard and sleeping at night
    during the cooling season, and state a willingness to negotiate
    possibilities to alleviate the situation.
    These interrogatory answers are unsworn and not evidence in
    this case, and at this point the Board considers only that the
    statements have been made. While noise measurements are not
    necessary to prove violation of the noise nuisance standard, the
    Board appreciates the Lordens’ desire to quantify the
    Association’s noise output to provide objective support for their
    personal observations and experiences. The Association, by its
    failure to respond to a legitimate discovery request, and a
    Hearing Officer Order, has successfully prevented complainants
    from taking noise readings during the heat of the summer of
    1989. The Board believes that to grant the motion to compel at
    this point, when the cooling season is over, could further
    frustrate the progress of this litigation. The motion to compel
    is therefore denied.
    However, the Board on its own motion will impose sanctions
    against the Association for its willful refusal to respond to the
    Lordens’ June 30 legitimate discovery request, the July 19 Order
    of the Hearing Officer and the September 13 Order of
    the
    Board.
    Pursuant to 35 Ill. Adm. Code Section 101.280, the Association is
    hereby barred from filing any pleading, making any claim, and
    presenting any testimony or other proof going to the issue of
    whether it has caused or allowed violation of Section 900.102.
    The Hearing Officer is directed to expeditiously schedule a
    hearing in this matter at which complainants may present evidence
    in support of their noise nuisance allegations and suggested
    remedy, including penalty. The Association may present evidence
    only as it relates to remedy, including penalty.
    103—541
    —4—
    IT IS SO ORDERED.
    Board Member J.D. Dumelle concurs.
    I, Dorothy M. Gurtn, Clerk of the Illinois Pollution Control
    Board, hereby certify that he above Order was adopted on
    the
    ~
    day of _______________________, 1989, by a vote
    of
    *
    .
    “
    /
    ~7.
    Dorothy M. G/inn, Cle’rk
    Illinois PoXlution Control Board
    1
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    3—5
    A
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