RECE~VEO

CLERK’S OFFICE

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

JUL 19 2004

GINA

PATTERMANN

))

PollutionSTATE OFControlILLINOISBoard

Complainant,

PCB 99-187

v.

(Citizen Enforcement,

BOUGHTON TRUCKING AND MATERIALS, )

INC.

)

Respondent.

NOTICE OF FILING

To: See Attached Certificate of Service

PLEASE TAKE NOTICE that on the 19th day of July, 2004, the undersigned

caused to be filed with the Office of the Clerk of the Pollution Control Board the

COMPLAINANT’S MEMORANDUM IN RESPONSE TO RESPONDENT’S MOTION

FOR RECONSIDERATION, a copy of which is herewith served upon you.

THE JEFF DIVER GROUP, L.L.C.

By: ______________

Michael S. Blazer

Carrie I. Araujo

THE JEFF DIVER GROUP, L.L.C.

1749 5. Naperville Road, Suite #102

Wheaton, IL 60187

(630) 681-2530

THIS FILING SI BMITTED ON RECYCLED PAPER

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RECEJVED

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

CLERK’S OFFICE

GINAPATTERMANN

))

STATE

JUL

OF

192004

ILLINOIS

Complainant,

PCB 99-187 Pollution Control Board

V~

(Citizen Enforcement,

BOUGHTON TRUCKING AND MATERIALS,

)

Noise & Air)

INC.

Respondent.

COMPLAINANT’S MEMORANDUM IN RESPONSE TO

RESPONDENT’S MOTION FOR RECONSIDERATION

Now comes Complainant, Gina Pattermann (“Pattermann”), by her attorneys, and

hereby submits her Memorandum in Response to the Motion of Respondent, Boughton

Trucking and Materials, Inc. (“Boughton”) for Reconsideration of the Board’s Order,

denying in part Boughton’s Motion for Summary Judgment.

I.

PROCEDURAL BACKGROUND

On May 6, 2004, this Board granted Summary Judgment to Boughton on

Pattermann’s claim of numerical noise violations. Finding a genuine issue of material

fact still exists, however, this Board denied the balance of Boughton’s Motion, directed

at Pattermann’s claims of violations of Sections 9(a) and 24 of the Act. Specifically, this

Board found that there existed an interference from noise and air pollutants and that

Boughton did not dispute the existence of that interference. May 6 Order at 9. In

denying summary judgment, this Board found that “genuine issues of material fact exist

regarding the extent and reasonableness of the interferences by noise and dust

emissions.”

Id.

~oughtonnow seeks Reconsideration alleging that “any factual dispute over the

level of interference or whether Boughton’s operation caused, the interference is

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immaterial,

as a matter of law,

if

Complainant’s evidence does not support a finding of

‘unreasonable interference’ — the legal standard which must be proved in order to win a

nuisance case under the Environmental Protection Act.” Boughton Motion at

¶

4.

Boughton’s argument is pure sophistry. Unwilling to acknowledge that it cannot

controvert the existence and extent of the noise and air nuisances it created, Boughton

simply waves away the facts and instead calls them “immaterial”. As will be

demonstrated below, there is no basis for Boughton’s effort to have this Board ignore

the undisputed facts.

II.

FOR RECONSIDERATION

“Motions for reconsideration are designed to bring to the court’s attention newly

discovered evidence that was unavailable at the time of the original hearing, changes in

existing law, or errors in the court’s application of the law.”

Continental Casualty Comp.

v. Security Insurance Company of Hartford,

279 III.App.3d 815, 820 (Ist Dist. 1996). A

motion to reconsider an order granting or denying summary judgment “raises the

question of whether the judge erred in his previous application of existing law.”

Koroguylan v. Chicago Title and Trust Comp.,

213 llI.App.3d 622, 628 (jst Dist. 1991).

Boughton asserts that this Board’s denial of summary judgment was in error

‘because it was based on the faulty legal conclusion that there exists a ‘genuine issue

of material fact’ which requires this matter to go to hearing.” Boughton Motion at ¶2.

Boughton does not assert that this Board made any actual error in applying existing law.

Rather, Boughton merely seeks to resubmit the same argument that this Board already

ruled on — albeit under the new guise of “immateriality”. This effort at misdirection does

not meet the established criteria for reconsideration.

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Ill.

THIS BOARD APPLIED THE CORRECT STANDARD OF REVIEW ON A

MOTION FOR SUMMARY JUDGEMENT

-

INTERFERENCE CAUSED BY BOUGHTON

“The party seeking summary judgment may meet its initial burden of persuasion

by presenting facts which, if uncontradicted, would entitle it to a judgment as a matter of

law.”

Loschen v. Grist Mill Confections, Inc.,

PCB 97-174 (Sep. 18, 1997), citing

Estate

of Stewart,

236 lll.App.3d 1, 7-8 (Ist Dist. 1991). If the party seeking summary judgment

produces such evidence, then the burden of production shifts to the party opposing the

Motion.

Estate of Stewart,

236 lll.App.3d at 8. “In determining the existence of a genuine

issue of material fact, the courts must construe the pleadings, depositions, admissions,

and affidavits strictly against the movant and liberally in favor of the opponent.”

Id.

at 7.

While the nonmoving party does not have to prove its case, it must “present a factual

basis which would arguably entitle her to a judgment.” May 6 Order, citing

Gauthier v.

Westfall,

266 III.App.3d 213, 219 (2’~Dist. 1994). “Summary judgment may only be

granted where the facts are capable of only one reasonable inference”.

Estate of

Stewart,

236 III. App. 3d at 12. Finally, “Summary judgment ‘is a drastic means of

disposing of litigation’, and therefore it should only be granted when the movan~’sright

to the relief ‘is clear and free from doubt.” May 6 Order at 5, citing

Dowd & Dowd, Ltd.

v. Gleason,

181 llI.2d 460, 463 (1998);

Purtill v. Hess,

111 III.2d 229, 240 (1986).

Boughton had the opportunity to meet its initial burden of persuasion by

evidencing a lack of genuine issues of material fact or presenting “uncontradicted facts”

establishing that it is entitled to judgment as a matter of law. It failed to do so.

Nevertheless, Pattermann went further and provided uncontroverted evidence

establishing the elements of her claims — the testimony of five witnesses attesting to the

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existence and extent of interference from both noise and air pollutants. This Board

recognized that Boughton did not dispute the observations of Pattermann or her

witnesses. May 6 Order at 7.

Pattermann produced a factual basis which would entitle her to a judgment.

Gauthier

at 219. Indeed, Boughton conceded the existence and extent of noise and air

pollutants in its Motion for Summary Judgment. To avoid the impact of this concession,

however, Boughton argued that the question submitted to this Board was “whether

the Complainant and her witnesses have experienced noise and dust, or even whether

that noise and dust interferes in their lives. Rather, the question is whether those

emissions have ‘unreasonably interfered’ with Complainant’s enjoyment of life.”

Boughton Motion for Summary Judgment at 10-11.

Boughton now claims that this Board incorrectly determined that the level of

interference suffered by Pattermann and her witnesses’ from noise and air pollutants

was material to its determination of Boughton’s Summary Judgment Motion. Boughton

Motion at ¶4. Boughton further asserts that this fact was “immaterial” because it was not

in dispute and did not support a finding of “unreasonable interference”. Boughton Motion

at ¶4-5. Boughton asserts that, “Only disputes over facts that might affect the outcome

of the suit under the governing law will properly preclude the entry of summary

judgment. Factual disputes that are irrelevant or unnecessary will not be counted.”

Id.

at

5, citing

Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986).

As noted, Pattermann previously provided this Board with

prima fade

evidence

establishing the elements of her claims under Sections 9(a) and 24 of the Act.

Pattermann produced the testimony of five witnesses attesting to the existence of

interference from both noise and air pollutants and its interference with their enjoyment

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of their lives. “The testimony of private citizens, as opposed to that of experts, is

sufficient to sustain a finding that there was a violation of the Act.”

Hillside Stone

Corporation v. Illinois Pollution Control Board,

43 III.App.3d 158, 162 (Ist Dist. 1976),

citing

Sangamo Construction Co. v. Pollution Control Board,

27 III.App.3d 949 955 (4th

Dist. 1975).

Section 9(a) of the Act prohibits the e~nissionof any “contaminant” so as to cause

“air pollution”, “either alone or in combination from other sources”. 415 ILCS 5/9(a)

(2003). In order to establish a violation of Section 9(a), Pattermann must show that:

1)

There was an emission of dust.

2)

The emission was caused or contributed to by Boughton.

3)

The dust resulted in either (a) injury to health or (b) interference

with the enjoyment of life or property.

4)

The injury or the interference was unreasonable according to the

criteria at Section 33(c) ofthe Act. (415 ILCS 5/33(c) (2003).

See

Glasgow v. Granite City Steel,

PCB 00-221, 2002 WL 392181 (March 7, 2001),

citing

Gott v. M’Orr Pork,

PCB 96-68, Slip. Op. at 12 (Feb. 20, 1997).

The extent and impact of the dust generated by Boughton were discussed in

detail in Pattermann’s Memorandum in Response to Boughton’s Motion for Summary

Judgment. In summary, these include:

1)

A cloud of dust that caused people to keep their doors and windows

closed and to roll up their car windows.

2)

A coating of dust on countertops, furniture, floors and windows.

3)

Numerous household activities, such as gardening and enjoying back

yards, were curtailed or precluded because of the dust.

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Section 24 of the Act prohibits emitting noise beyond one’s property which

unreasonably interferes with the enjoyment of life in violation of the Board’s rules or

standards.

Kvatsak v. St. Michael’s Lutheran Church,

PCB 89-182, 1990 WL 158048

(Aug. 30, 1990). Appropriate evidence would include testimony describing the noise;

explaining the type and severity of the interference caused by the noise; and indicating

the frequency and duration of the interference.

Kvatsak v. St. Michael’s Lutheran

Church,

PCB 89-1 82, 1990 WL 158048 (Aug. 30, 1990), citing

Ferndale Heights Utilities

Company v. Illinois Pollution Control Board,

41 llI.App.3d 962 (1st Dist. 1976).

Again, the extent and impact of the noise Boughton generates was dealt with in

detail in Pattermann’s prior Memorandum, and includes:

1)

Sounds as if a train might be going or grinding or loud trucks.

2)

Consistent beeping from truck back-up alarms.

3)

Intense noise from blasting.

4)

A daily, consistent roaring from equipment.

5)

Noises so obtrusive that it is difficult to hold a conversation.

Boughton concedes that it has caused interference via noise and air pollution

and further concedes the extent of that interference. These are the essential predicate

facts necessary to establish a violation of Sections 9(a) and 24 of the Act. These facts

are not rendered “immaterial” merely because Boughton cannot dispute them. We are

thus left with a simple question — was the interference “unreasonable”? This is a

question of fact that cannot be summarily determined. See

Gardner v. Township High

School District 211,

PCB 01-86, Slip. Op. at 4 (December 6, 2001) (The issue of

unreasonableness is not the proper subject of summary disposition and there must be a

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fully developed hearing record before the Board can determine whether interference is

unreasonable.)

Boughton’s “immateriality” argument is a pretext for its effort to re-argue its

flawed Section 33(c) analysis. According to Boughton, because the existence and the

extent of the noise and air pollutants are conceded and, consequently, “immaterial”,

then all that is left for this Board to do is to balance the Section 33(c) factors to

determine if the conceded interference is unreasonable. To reiterate the point, the

analysis of Section 33(c) factors is premature until the close of all the evidence.

Boughton has not asserted any basis of law for its conclusion it is entitled to the Section

33(c) analysis at this stage of the proceeding.1 A Section 33(c) analysis is inappropriate

and premature in the context of summary judgment. Thus, as this Board held in

Loschen v. Grist Mill Confections, Inc.,

PCB 97-174, Slip. Op. at 4 (Sep. 18, 1997):

A complainant is not obligated to introduce evidence on each of the

Section 33(c) factors.

(See Incinerator, Inc. v. Pollution Control Board,

59

III. 2d 290, 296, 319 N.E.2d 794, 797 (1974);

Processing and Books, Inc.

v. Pollution Control Board,

64 III. 2d 68, 75-77, 351 N.E.2d 865, 869.)

Furthermore, the respondent has the burde~nof proof as to the Section

33(c) factors “to the extent that a factor is not a necessary part of

Complainants’ burden as to unreasonableness.”

(IEPA v. WF. Hall

Printing Company

(September 15, 1997) PCB 73-30, 27 PCB 371, 372,

n.3 (citing

Processing and Brooks, Inc.,

64 Ill. 2d 68, 351 N.E.2d 865

(1996)).) The Board finds that it would be premature to weigh the factors

of Section 33(c) of the Act at this time, since complainant is not required to

present facts in the complaint concerning Section 33(c) of the Act in order

to file a sufficient pleading but instead may present facts at hearing.

Therefore the Board denies respondent’s motion to dismiss prior to

hearing because facts could be present at hearing that demonstrate, after

weighing the factors of Section 33(c) of the Act, that respondent has

1

Boughton’s reliance on

Charter Hall v. Overland,

PCB 98-81 (Oct. 1, 1998) is particularly misplaced

here. In that case, the complainant presented the testimony of neighbors to successfully prosecute a

noise violation under the Act. The neighbors testified to noises and interference startlingly similar to that

testified to by Pattermann and her witnesses — neighbors awakened by the noise, the inability to use their

patios, the need to shut their windows. That evidence was sufficient for the Board to find that the noise

interfered with their enjoyment of life. After, and only after, that determination and the presentation of all

of the evidence, did the Board perform its Section 33(c) analysis.

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violated Section 9(a) of the Act.

In its order denying Boughton’s original Motion, this Board set forth the applicable

order of findings to be made in a nuisance noise and air proceeding. “The threshold

issue is whether the sounds have caused an interference with the complainant’s

enjoyment of life or lawful business activity.” May 6 Order at 9. This Board found that it

is undisputed that “there exists interferences from both noise and air pollutants.” May 6

Order at 9. For purposes of summary judgment, this Board found that there does still

exist a genuine issue of material fact regarding the extent and reasonableness of those

interferences.

Id.

“If the Board finds that a respondent’s air contaminants or sound

emissions have interfered with the enjoyment of life, the Board then considers the

factors set forth in Section 33(c) of the Act.”

Id. (emphasis added).

Quite simply,

Pattermann has produced sufficient evidence to defeat Boughton’s Motion for Summary

Judgment. Unreasonableness cannot be decided until this Board, not Boughton, weighs

the Section 33(c) factors at the close of this case.

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V.

Boughton does not assert that this Board failed to apply any legal standard

correctly —

the

appropriate standard of review on a Motion for Reconsideration.

Pattermann’s evidence of the existence and extent of,

and interference by, the noise

and air pollutants created by Boughton is undisputed. Pattermann is not obligated to

contest, in the narrow confines of Boughton’s Motion for Summary Judgment. As this

Board correctly found, the Section 33(c) analysis should be

conducted

by this Board

after a

hearing, not by Boughton in its interpretive effort to obtain summary disposition

nor under the

pretext

of

a motion for reconsideration. For all of the foregoing reasons,

Boughton’s Motion for Reconsideration should be denied.

Respectfully submitted,

The Jeff Diver Group, L.L.C.

By: ___________________________

One of the attorneys for

Complainant

Michael S. Blazer

Carrie I. Araujo

The Jeff Diver Group, L.L.C.

1749 S. Naperville Road

Suite 102

Wheaton, IL 60187

630-681-2530

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CERTIFICATE OF SERVICE

The undersigned

hereby

certifies

that he caused the above and foregoing Notice

of Filing

and COMPLAINANT’S MEMORANDUM IN RESPONSE TO RESPONDENT’S

MOTION FOR RECONSIDERATION to be served via facsimile transmission upon the

following:

Mark R. Ter Molen

Patricia F. Sharkey

Kevin G. Deshamais

Jaimy M. Levine, Esq.

Mayer, Brown, Rowe & Maw

190 S. LaSalle Street

Chicago, IL 60603

Fax No. (312) 706-9113

on this

19th

day of July, 2004.

THE JEFF DIVER GROUP, L.L.C.

By:

_______________

Michael S. Blazer

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