ILLINOIS POLLUTION CONTROL BOARD
March 15, 2007
VINCENT and JENNIFER NERI,
Complainants,
v.
TNT LOGISTICS NORTH AMERICA INC.,
Respondent.
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PCB 05-213
(Citizens Enforcement – Noise)
ORDER OF THE BOARD (by A.S. Moore):
On June 13, 2005, the complainants, Vincent and Jennifer Neri (the Neris), filed a
complaint against the respondent, TNT Logistics North America Inc. (TNT), alleging numeric
noise violations. The complaint concerns TNT’s tire warehouse distribution facility located at
25850 S. Ridgeland Avenue in Monee, Will County. The Neris now seek to file an amended
complaint to also include the allegation of a nuisance noise violation. The Neris also seek to add
two companies as respondents to this case. Because TNT has recently left the facility and retains
no control over the facility, TNT moves the Board to dismiss both the original and amended
complaints as frivolous.
For the reasons below, the Board accepts the filing of the Neris’ amended complaint, but
declines to add new respondents, grants TNT’s motion to dismiss, and closes this docket.
1
In
this order, the Board will first describe the relevant procedural history of this citizens
enforcement action. The Board will then set forth the legal framework for today’s decision.
Next, the Board discusses the complaints and related pleadings. Lastly, the Board provides its
analysis of the issues and renders its rulings.
PROCEDURAL HISTORY
The Neris initiated this case by filing a complaint against TNT on June 13, 2005
(Original Complaint).
2
On August 5, 2005, TNT filed an answer to the Original Complaint. On
September 1, 2005, the Board issued an order accepting the Original Complaint for hearing.
During the ensuing 14 months or so, the parties participated in status calls with the hearing
officer and engaged in discovery. On November 16, 2006, the hearing officer issued an order
setting the case for hearing on December 18, 19, and 20, 2006.
1
Three other noise enforcement actions against TNT are also dismissed today.
See
John and
Linda Maracic v. TNT Logistics North America Inc., PCB 05-212 (Mar. 15, 2007); Wayne
Haser v. TNT Logistics North America Inc., PCB 05-216 (Mar. 15, 2007); Ken Blouin v. TNT
Logistics North America Inc., PCB 05-217 (Mar. 15, 2007).
2
The Board cites the Original Complaint as “Orig. Comp. at _.”
2
On December 14, 2006, the hearing officer conducted a status conference call with the
parties. During the call, the following occurred: the Neris made an oral motion to cancel the
hearing; TNT objected to the motion and represented that it was ready to proceed to hearing; the
hearing officer granted the Neris’ motion and cancelled the hearing; and the hearing officer
directed the Neris to seek leave to file an amended complaint and file the amended complaint by
January 5, 2007.
Later on December 14, 2006, the Neris filed a document entitled “Motion to Cancel
Hearing and Leave to Refile Amendment to Existing Numerical Complaint” (Motion To Cancel
and For Leave).
3
On January 3, 2007, the Neris filed an amended complaint (Amended
Complaint).
4
The hearing officer issued an order on January 4, 2007, memorializing the
December 14, 2006 status call.
On January 16, 2007, TNT filed its “Objection to Complainants’ ‘Amended Complaint,’
Motion to Dismiss Complaint as Originally Filed, and Alternative Motion for Reversal of
Hearing Officer’s Order” (Objection), with an attached affidavit (Affidavit). In a
February 1, 2007 order, the hearing officer, with TNT’s agreement, extended to
February 13, 2007, the deadline for the Neris to respond to TNT’s Objection. On
February 5, 2007, TNT filed a “Supplementation of Affidavit” and attached supplemental
affidavit (Supplemental Affidavit).
5
On February 14, 2007, the Neris’ filed a motion seeking to add Key Logistics Solutions
and Location Finders, Inc. as respondents to this case (Motion To Add). On
February 16, 2007, TNT filed a response to the Motion To Add (Response).
6
LEGAL FRAMEWORK
Under the Environmental Protection Act (Act) (415 ILCS 5 (2004)), any person may
bring an action before the Board to enforce Illinois’ environmental requirements.
See
415 ILCS
5/3.315, 31(d)(1) (2004); 35 Ill. Adm. Code 103. For enforcement actions not initiated by the
State, Section 31(d)(1) of the Act provides that “[u]nless the Board determines that [the]
complaint is duplicative or frivolous, it shall schedule a hearing.” 415 ILCS 5/31(d)(1) (2004);
see also
35 Ill. Adm. Code 103.212(a). A complaint is “frivolous” if it requests “relief that the
Board does not have the authority to grant” or “fails to state a cause of action upon which the
Board can grant relief.” 35 Ill. Adm. Code 101.202.
3
The Board cites the Motion To Cancel and For Leave as “Mot. Cancel/Leave at _.”
4
The Board cites the Amended Complaint as “Am. Comp. at _.”
5
The Board cites the Objection as “Object. at _”; the Affidavit attached to the Objection as
“Affid. at _”; the supplementation of affidavit as “Supp. at _”; and the Supplemental Affidavit as
“Supp. Affid. at _.”
6
The Board cites to Motion To Add as “Mot. Add at _”; and the Response as “Resp. at _.”
3
Section 103.206 of the Board’s procedural rules provides:
a)
The Board, on its own motion or the motion of a respondent, may order a
person to be added as a respondent if a complete determination of a
controversy cannot be had without the presence of the person who is not
already a party to the proceeding.
* * *
d)
*** If a party wishes to file an amendment to a complaint, counter-
complaint, cross-complaint, or third-party complaint that sets forth a new
or modified claim against another person, the party who wishes to file the
pleading must move the Board for leave to file the pleading.
e)
The pleading sought to be filed pursuant to subsection (d) of this Section
must:
1)
Set forth a claim that arises out of the occurrence or occurrences
that are the subject of the proceeding . . . . 35 Ill. Adm. Code
103.206(a), (d), (e).
When ruling on a motion to dismiss, the Board takes all well-pled allegations as true and
draws all inferences from them in favor of the non-movant. Dismissal is proper only if it is clear
that no set of facts could be proven that would entitle complainant to relief.
See
People v.
Peabody Coal Co., PCB 99-134, slip. op. at 1-2 (June 20, 2002); People v. Stein Steel Mills Co.,
PCB 02-1, slip op. at 1 (Nov. 15, 2001), citing Import Sales, Inc. v. Continental Bearings Corp.,
217 Ill. App. 3d 893, 577 N.E.2d 1205 (1st Dist. 1991).
THE PLEADINGS
Original Complaint
According to the Original Complaint (filed June 13, 2005), trucking activity at TNT’s
warehouse distribution facility emits noise in violation of the Board’s numeric noise standards.
Specifically, the Neris allege that the noise comes from trucks entering and exiting the facility,
trailers being connected, disconnected, and dragged, trailers hitting the loading docks, air brakes,
air horns, and diesel engine revving and idling. The Neris assert that the noise persists 24 hours
a day, 7 days a week, 365 days a year. The Original Complaint further states that the noise
disrupts the sleep of the Neris and their children and causes them to not enjoy their “home life”
or “outdoor living.” Orig. Comp. at 4.
The Original Complaint alleges that TNT is violating several provisions of the Board’s
numeric noise regulations: Section 901.102 (“Sound Emitted to Class A Land”); Section
901.103 (Sound Emitted to Class B Land”); Section 901.104 (“Impulsive Sound”); and Section
901.106 (“Prominent Discrete Tones”) (35 Ill. Adm. Code 901.102, 901.103, 901.104, 901.106).
The Neris ask the Board to order TNT to “control noise at all times of day” or alternatively to
“relocate the facility.” Orig. Comp. at 4.
4
Motion To Cancel and For Leave
In the Motion To Cancel and For Leave (filed December 14, 2006), the Neris state that
they are confirming their request for hearing cancellation made earlier that day and granted
during the status call. Mot. Cancel/Leave at 1. The Neris further state that the their request to
cancel the hearing “is made to Leave to Refile to include a Nuisance Complaint which can be
documented and filed in addition to the Numeric Complaint that was to be heard next week.”
Id
.
Amended Complaint
The Neris allege in their Amended Complaint (filed January 3, 2007) that TNT is
violating Sections 23 and 24 of the Act (415 ILCS 5/23, 24 (2004)). Am. Comp. at 3. The
Amended Complaint essentially alleges the same trucking activities and the same duration,
frequency, and effects of violations as did the Original Complaint.
Id
. at 3-4. In the Amended
Complaint, the Neris ask the Board to order TNT to “[b]uild whatever is necessary to stop all
noise emitted into my property or shut down building completely.”
Id
. at 4.
Objection and Affidavit
In its Objection (filed January 16, 2007), TNT first asserts that the Amended Complaint
should be stricken because it was not accompanied by a motion for leave to file the document.
Object. at 2-3. Citing the Board’s procedural rules (35 Ill. Adm. Code 103.206(d)) and the
hearing officer’s January 4, 2007 order, TNT argues that the Neris’ were required to seek the
Board’s leave to file the Amended Complaint because the Amended Complaint sought to set
forth a new or modified claim,
i.e.
, adding a nuisance noise claim to the prior numeric noise
claim.
Id
. at 3-4.
Even if the Neris’ had moved for leave, TNT continues, the Amended Complaint is
frivolous for several reasons. Object. at 4-6. First, TNT argues that Section 23 of the Act cannot
be violated because it merely sets forth legislative findings regarding noise.
Id
. at 4. Second,
TNT maintains that the alleged violation of Section 24 is also frivolous. The Neris seek a cease
and desist order, TNT states, which relief is beyond the Board’s authority to grant under the new
circumstances developing at the facility.
Id
. at 5-6. Specifically, TNT presents the Affidavit of
TNT’s Properties Director, Steve McNeal, who, as of January 16, 2007, attests as follows:
TNT currently leases and operates a facility located [at] 25850 Ridgeland, Monee,
Illinois 60449 (“Facility”) . . . .
As of January 22, 2007, TNT will no longer lease or operate the Facility.
Further, as of January 22, 2007, TNT will not have any employees present at the
Facility, nor will TNT have any authority or control of any equipment, operations
or activities of any new tenant at the Facility.
5
Further, as of January 22, 2007, TNT will not have any ability to make any
changes in any equipment located at, or any operations or activities taking place
at, the Facility.
It is TNT’s understanding that as of January 22, 2007, another company, not
related in any way to TNT, will begin operations at the Facility. Affid. at 1-2 (¶¶
3-7);
see also
Object. at 5.
TNT argues that because it will no longer be operating the facility as of January 22, 2007, any
cease and desist order would be “ineffective”:
[B]y the time the Board issued any such order, TNT will not be in a position to
implement any changes necessary to comply with any such order, and any new
operator of the Facility, as a non-party, would not be bound by any such order
(which order, in any event, would evaluate only TNT’s actions, not the actions of
any such new operator). Object. at 6.
According to TNT, because the Original Complaint, like the Amended Complaint, seeks
a cease and desist order, the Original Complaint is also frivolous for the same reasons. TNT
argues that the Board should therefore dismiss the Original Complaint and the Amended
Complaint as frivolous. Object. at 7, 13-14.
Alternatively, should the Board deny the motion to dismiss, TNT appeals the ruling of the
hearing officer canceling the hearings and granting the Neris time to seek leave to file an
amended complaint. Object. at 8. TNT argues, among other things, that the Neris failed to
timely file a compliant motion to cancel the hearing, failed to demonstrate that they would suffer
material prejudice absent hearing cancellation, and failed to demonstrate that the request to
cancel is not the result of their lack of diligence.
Id
. at 9-10.
TNT concludes by stating that it objects to the filing of the purported Amended
Complaint and moves the Board to dismiss the Amended Complaint and the Original Complaint
as frivolous. Alternatively, TNT moves the Board to reverse the hearing officer and reschedule
the hearing on the Original Complaint. Object at 13-14.
Supplemental Affidavit
The Supplemental Affidavit (filed February 5, 2007) sets forth the sworn statements of
TNT’s Properties Director, Steve McNeal, made on January 31, 2007:
TNT previously leased and operated a facility located [at] 25850 Ridgeland,
Monee, Illinois 60449 (“Facility”) . . . .
As of January 22, 2007, TNT is no longer leasing or operating the Facility.
6
Further, as of January 22, 2007, TNT no longer has any employees present at the
Facility, nor does TNT retain any authority or control over any equipment,
operations or activities of any new tenant at the Facility.
Further, as of January 22, 2007, TNT no longer has any ability to make any
changes in any equipment located at, or any operations or activities taking place
at, the Facility.
As of January 22, 2007, another company, not related in any way to TNT, began
operations at the Facility. Supp. Affid. at 1-2 (¶¶ 3-7).
TNT states that under these circumstances, the relief sought by the Neris would be
“unenforceable” and reiterates that TNT seeks dismissal of the Amended Complaint and the
Original Complaint as frivolous. Supp. at 1-2.
Motion To Add
The Neris’ Motion To Add (filed February 14, 2007) states:
We hereby request adding “Key Logistics Solutions” and “Location Finders, Inc.”
to previously named “TNT Logistics” to our numerical and nuisance complaint.
This request is made in order to correctly identify responsible developers, name
changes and the like. Mot. Add at 1 (emphasis in original).
Response
In its Response (filed February 16, 2007), TNT states that the Neris’ Motion To Add does
not cure the many deficiencies identified by TNT’s Objection. Resp. at 2. Most importantly in
TNT’s view, nothing in the Motion To Add disproves the position that the Board is unable to
grant the relief sought by the Neris.
Id
.
TNT asserts that the Motion To Add suggests that the Neris believe the operational
change at the facility is a “name change only.” Resp. at 2. TNT points out, however, that the
Neris have presented no evidence to support such an implication and, in fact, “TNT and the new
operator of the Facility are not related in any way.”
Id
. at 3. TNT concludes that the Motion To
Add does not affect the grounds on which TNT has sought dismissal of this case.
Id
.
BOARD ANALYSIS
In this portion of the order, the Board will discuss and rule on the Neris’ motion for leave
to file the Amended Complaint, the Neris’ motion to add respondents, and TNT’s motion to
dismiss the Amended Complaint and the Original Complaint.
The Board grants the Neris’ request for leave to file an amended complaint adding an
alleged nuisance noise violation against TNT. In the Neris’ filing entitled “Motion to Cancel
7
Hearing and Leave to Refile Amendment to Existing Numerical Complaint,” which was directed
to the Board, the Neris state that their request to cancel the scheduled December 2006 hearing is:
made to Leave to Refile to include a Nuisance Complaint which can be
documented and filed in addition to the Numeric Complaint that was to be heard
next week. Mot. Cancel/Leave at 1.
It is plain from this document, timely filed on December 14, 2006, that the Neris were
seeking the Board’s permission to file an amended complaint to add nuisance noise allegations to
their already-existing allegations of numeric noise violations. In turn, the Neris timely filed the
Amended Complaint on January 3, 2007. Following the status call with the hearing officer
earlier that day, the Neris’ December 14, 2006 filing fairly put TNT on notice as to what the
Neris’ sought to do. The Board will not require more of these
pro se
complainants. The Board
accepts the filing of the Amended Complaint.
The Board now turns to the Amended Complaint itself and to TNT’s motion to have both
the Amended Complaint and the Original Complaint dismissed as frivolous. As noted above, the
Amended Complaint alleges violations of Sections 23 and 24 of the Act by TNT. TNT correctly
points out that because Section 23 of the Act solely sets forth the General Assembly’s findings
on excessive noise and states the purpose of the Act’s Title VI on noise, Section 23 cannot be
violated. The Board has accordingly stricken from complaints as frivolous the alleged violation
of Section 23.
See
,
e.g.
, Beers v. Calhoun (Let It Shine Car Wash), PCB 04-204 (July 22, 2004).
The overarching problem, however, for both the Amended Complaint and the Original
Complaint is presented by the affidavits of TNT’s Properties Director, Steve McNeal. Mr.
McNeal attests that as of January 22, 2007: (1) TNT is no longer leasing or operating the
facility; (2) TNT no longer has any employees present at the facility; (3) TNT does not retain any
authority or control over any equipment, operations, or activities of any new tenant at the
facility; (4) TNT no longer has any ability to make any changes in any equipment located at, or
any operations or activities taking place at, the facility; and (5) another company, not related in
any way to TNT, began operations at the facility. Mr. McNeal’s sworn statements are
uncontroverted. The Neris’ subsequent Motion To Add does not dispute that TNT has left the
facility and retains no authority over the facility’s operations.
Importantly, the only relief that the Neris have sought in the Amended Complaint and in
the Original Complaint has been a Board order requiring TNT either to simply “stop” the noise
violations at the facility or to implement specific noise abatement measures for the facility. On
September 1, 2005, when TNT was still operating at the facility, the Board issued an order
finding that the Original Complaint was not frivolous. Indeed, it is well-settled that the Board
has the authority to order a respondent both to cease and desist from further noise violations and
to implement specific noise reduction steps.
See
,
e.g.
,
Discovery South Group v. Pollution
Control Board, 275 Ill. App. 3d 547, 656 N.E.2d 51 (1st Dist. 1995); Charter Hall Homeowner’s
Association v. Overland Transportation System, Inc., PCB 98-81 (May 6, 1999).
However, with TNT’s departure from, and termination of any control over, the facility,
even if the Neris prove the alleged noise violations, the relief they request is now beyond the
8
Board’s authority to grant. Accordingly, “though the Board’s remedial authority under the Act is
in no way limited to the relief that a complainant requests,” the Board finds that the Original
Complaint and the Amended Complaint are frivolous under these new circumstances. Finley v.
IFCO ICS-Chicago, Inc., PCB 02-208, slip op. at 11 (Aug. 8, 2002);
see also
35 Ill. Adm. Code
101.202 (“Frivolous” means “a request for relief that the Board does not have the authority to
grant . . . .”).
The Board was faced with a very similar situation in
Tonne v. Leamington Foods, PCB
93-44 (Apr. 21, 1994). In
Tonne, approximately one year after the Board found that the citizens
noise complaint was not frivolous and accepted it for hearing, the complainants reported that the
respondent, Leamington Foods, was no longer occupying the building and that the refrigeration
fans, the alleged noise source, were not operating.
See
Tonne, PCB 93-44 at 1. The Board held:
The complaint alleges violations of the noise provisions of the Environmental
Protection Act . . . and requests the Board to order the respondent to cease and
desist from further violations. If after presentation of evidence, the Board were to
determine that the operation of the fans caused a violation of the Act, an order
could be entered against Leamington Foods requiring Leamington Foods to cease
and desist from further violations of the Act. To conform to the Board’s order
Leamington Foods would be required to modify the operation of the fans to
achieve compliance or cease operating the fans. As Leamington Foods is no
longer an operator of the refrigeration fans it does not possess the authority to test
or modify the refrigeration fans. While the Board could enter an order as
requested if a violation were found, the Board believes that because Leamington
Foods is no longer in control of the subject property such an order would be
unenforceable. Considering the circumstances in this matter, the Board finds that
because Leamington Foods has vacated the property, the Board is unable to
effectively grant the relief requested in this matter. Where the Board is unable to
effectively impose relief, the Board must dismiss the case as frivolous. Tonne,
PCB 93-44 at 2;
compare
Pearl v. Bicoastal Corp., PCB 96-265
(Apr. 3, 1997) (denying motion to dismiss citizen complaint as frivolous where
respondent vacated the site but complainant sought, among other things, civil
penalties).
After filing the Amended Complaint on January 3, 2007, the Neris, on
February 14, 2007, filed their request to add two companies, Key Logistics Solutions and
Location Finders, Inc., as respondents to this action. Neither company has sought to file
anything with the Board in response. The Neris’ request sets forth no allegations specific to
these companies, let alone whether they are operating the facility or violating the Act and Board
regulations. The allegations of the Original Complaint and Amended Complaint relate solely to
the activities of TNT. Nor do the Neris allege that either of these companies is related to TNT.
In fact, Mr. McNeal has sworn that the company currently operating the facility, whoever that
may be, is “not related in any way to TNT.”
Based on this record, any claims that the Neris may have against any new operator of the
facility cannot have “arise[n] out of the occurrence or occurrences that are the subject of the
9
proceeding” against TNT. 35 Ill. Adm. Code 103.206(e)(1). Under these circumstances, the
Board denies the Neris’ motion to add the two mentioned companies as respondents to this case,
which now lacks any controversy for the Board to decide.
See
35 Ill. Adm. Code 103.206(a)
(Board “may order a person to be added as a respondent if a complete determination of a
controversy cannot be had without the presence of the person”).
Taking all well-pled allegations as true and drawings all inferences from them in favor of
the Neris, the Board finds that it is clear that no set of facts could be proven that would entitle the
Neris to the relief they seek from the Board against TNT. Accordingly, the Board grants TNT’s
motion to dismiss the Original Complaint and the Amended Complaint. Having so ruled, the
Board need not reach TNT’s alternative motion to overrule hearing officer’s order canceling the
December 2006 hearing.
CONCLUSION
As detailed above, the Neris properly sought permission to file their Amended Complaint
and the Board accepts that filing. However, the only relief requested by the Neris in the
Amended Complaint and the Original Complaint is the elimination of TNT’s allegedly violative
sound emissions from the tire warehouse distribution facility located at 25850 S. Ridgeland
Avenue in Monee, Will County. Because TNT has recently departed from the facility and
retains no control over the facility, the Board no longer has any authority to order TNT to reduce
noise from the facility, even if the alleged violations by TNT were proven. Under these new
circumstances, the Original Complaint and the Amended Complaint are therefore frivolous.
Further, the Neris make no allegations regarding any activities of the companies they now
want to add as respondents, Key Logistics Solutions or Location Finders, Inc. The only alleged
violations before the Board are based on the past alleged activities of TNT, which is unrelated to
any new operator of the facility.
The Board accordingly declines the Neris’ request to add Key Logistics Solutions and
Location Finders, Inc. as respondents to this case, grants TNT’s motion to dismiss the Original
Complaint and the Amended Complaint, and closes this docket. If the Neris believe that any
new operator of the facility is violating the noise provisions of the Act and Board regulations,
nothing in this order precludes the Neris from filing a new complaint against that entity. Should
any such new complaint be brought and result in appellate review of final Board action, today’s
dismissal will ensure that the record on appeal would not be burdened by the many filings of
PCB 05-213.
The Board notes that three other citizen enforcement actions brought against TNT for
alleged noise violations from TNT’s activities at the Monee facility are also being dismissed
today on the same grounds.
See
John and Linda Maracic v. TNT Logistics North America Inc.,
PCB 05-212 (Mar. 15, 2007);
Wayne Haser v. TNT Logistics North America Inc., PCB 05-216
(Mar. 15, 2007); Ken Blouin v. TNT Logistics North America Inc., PCB 05-217 (Mar. 15, 2007).
10
ORDER
1.
The Board grants the Neris’ motion for leave to file the Amended Complaint and
accepts their filing of the Amended Complaint.
2.
The Board denies the Neris’ motion to add Key Logistics Solutions and Location
Finders, Inc. as respondents to this case.
3.
The Board grants TNT’s motion to Dismiss the Original Complaint and the
Amended Complaint.
IT IS SO ORDERED.
Section 41(a) of the Environmental Protection Act provides that final Board orders may
be appealed directly to the Illinois Appellate Court within 35 days after the Board serves the
order. 415 ILCS 5/41(a) (2004);
see also
35 Ill. Adm. Code 101.300(d)(2), 101.906, 102.706.
Illinois Supreme Court Rule 335 establishes filing requirements that apply when the Illinois
Appellate Court, by statute, directly reviews administrative orders. 172 Ill. 2d R. 335. The
Board’s procedural rules provide that motions for the Board to reconsider or modify its final
orders may be filed with the Board within 35 days after the order is received. 35 Ill. Adm. Code
101.520;
see also
35 Ill. Adm. Code 101.902, 102.700, 102.702.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above order on March 15, 2007, by a vote of 4-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
