RECE~VED
CLERK’S OFFICE
BEFORE
THE
ILLINOIS POLLUTION CONTROL BOARD
AUG 192004
STATE OF ILLINOIS
Pollution Control Board
GINA
PATfERMANN,
)
)
Complainant,
)
PCB
99-187
)
v.
)
(Citizen Enforcement
—
)
Noise, Air)
BOUGHTON TRUCKING AND
)
MATERIALS, INC.,
)
)
Respondent.
)
NOTICE OF FILING
TO:
See Attached Certificate of Service
Please take notice that on August 19, 2004, I filed with the Illinois Pollution Control
Board an original and nine copies of this Notice of Filing and the attached BOUGHTON’S
REPLY TO COMPLAINANT’S MEMORANDUM IN RESPONSE TO RESPONDENT’S
MOTION FOR RECONSIDERATION, copies ofwhich are attached hereto and hereby served
upon you.
Dated: August 19, 2004
BOUGHTON TRUCKING AND MATERIALS, INC.
BY:~~~tte
Patricia F. Sharkey
Mark R. Ter Molen
Kevin Desharnais
Mayer, Brown, Rowe
&
Maw LLP
190 South LaSalle Street
Chicago, Illinois 60603-3441
(312) 782-0600
THIS DOCUMENT HAS BEEN
PRINTED
ON RECYCLED PAPER
RECE~vED
BEFORE
THE
CLERK’S OFFICE
ILLINOIS POLLUTION CONTROL BOARD
AUG 192004
STATE OF ILLINOIS
GINA PATTERMANN,
)
Pollution
Control
Board
)
Complainant,
)
PCB 99-187
)
v.
)
(Citizen Enforcement
—
)
Noise, Air)
BOUGHTON TRUCKING AND
)
MATERIALS, INC.,
)
)
Respondent.
)
BOUGHTON’S REPLY TO
COMPLAINANT’S MEMORANDUM
IN RESPONSE TO RESPONDENT’S MOTION FOR RECONSIDERATION
NOW COMES Respondent, Boughton Trucking and Materials, Inc. (“Boughton”), by its
attorneys, Mayer, Brown, Rowe & Maw LLP, and replies to Complainant’s Memorandum in
Response to Respondent’s Motion for Reconsideration~
I.
The Board failed to undertake the analysis of the evidence refluired on a
motion for summary judgment based on an improper basis.
The Board’s May 6, 2004 order denying summary judgment on the statutory nuisance
claims was predicated on a finding that there are material issues of fact pertaining to the extent of
interference.
See
Order at 10. This was an error. No material facts are in dispute for the
purposes ofthe summary judgment motion, and the Board should have undertaken the legal
analysis to determine whether, as a matter oflaw, the evidence is sufficient to support a claim of
unreasonable interference.
Once Boughton informed the Board of the basis for its motion, and identified the
evidence which it believes shows the absence of a genuine issue of material fact, Complainant, in
order to avoid summary judgment and support its nuisance claim, was required, at that time, to
come forward with evidence demonstrating the existence of a material issue of fact in dispute as
THIS DOCUMENT IS FILEDON RECYCLED
PAI’ER
to whetherBoughton has caused an unreasonable interference.
See
Celotex v. Catrett, 477 U.S.
317, 324. The non-moving party cannotrest on the pleadings alone, but must designate specific
facts that establish that there is a genuine triable issue. j~at p. 324. Complainant has failed to
carry this burden.
Complainant has come forwardwith some evidence regarding interference, and on a
motion for summary judgment, the Board is required to take Complainant’s allegations in the
best light forthe Complainant. Fraser v. Universities Research Ass’n, 188 Ill. 2d 444, 454
(1999). Thus, the Board is entitled to assume, for purposes ofsummary judgment, that the types
of interference testified to in Complainant’s witnesses depositions can be proven to have
occurred, and that the source of that interference is Boughton’s quarry operations.1 What
the
Board is not entitled to do is deny Boughton’s Motion for Summary Judgment on the basis that
Complainant might be able to prove something more at hearing.
A motion forsummary
judgment must be decided on the basis of the record as it exists at the time it is heard. Logan v.
Old Enterprise Farms, Ltd, 139 lll.2d 229, 237, 564 N.E.2d 778, 782 (1990). Entry of summary
judgment is mandated, after adequate time for discovery and upon motion, against a party who
fails to make a showing sufficient to establish the existence of an element essential to that party’s
case and on which that party will bear the burden of proofat trial. Celotex, 744 U.S. at 323. The
evidence ofthe extent of impact is what has been testified to by Complainant’s witnesses or
Complainant continues to muddy the issues in this case with its self-serving argument that Boughton has admitted
its facility has interfered or unreasonably interferedwith Complainant’s enjoyment of life, yet fails to cite any
portion of Boughton’s motion as support. See Response at 7. As Boughton has repeatedly stated, it does not admit
any such facts and Complainant would bear the burden of proving such at any hearing should this case go that far.
Boughton has simply stated that on summary judgment the Board must takethefacts in the light most favorable for
the party moved against, and, in doing so, it remains the case that the facts alleged do not rise to the level of an
unreasonable interference. Thus Complainant has not carried her burden of proof and any dispute regarding the
alleged interference is not a material factstanding in the way cf-summary judgment.
2
THIS DOCUMENT IS FILED ON RECYCLED PAPER
otherwise disclosed during discovery and submitted with Complainant’s Response to the Motion
for Summary Judgment
--
no more, no less.
As the Supreme Court held in Celotex, “there can be no genuine issue as to any material
fact, since a complete failure ofproof concerning an essential element ofthe non-moving party’s
case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 3-23. The Board’s
order has not identified any genuine issue ofa material fact that would preclude it from
undertaking the analysis of the evidence required on a motion for summaryjudgment. A review
of the evidence shows that the extent ofinterference testified to by Complainant’s witnesses is
insufficient, as a matter of law, to support its nuisance claim. Further, the Board is also required
to consider the uncontested evidence on the remaining 33(c) factors presented by Boughton in
support ofits motion. Uncontradicted facts in a summary judgment movant’s affidavit are
admitted and must be taken as true for purposes ofthe motion. 735 ILCS
5/2-1005(c);
see also
Heidelberger v. Jewel Cos., 57 Iii. 2d 87, 312 N.E.2d 601 (1974). Complainant has failed to
come forward with
any
evidence controverting the facts presented by Boughton, and the Board is
required, as a matter of law, to take those facts as true for purposes of summary judgment.
Taking this undisputed evidence and the evidence regarding interference (which is also
undisputed for the purposes ofthe summary judgment motion) and construing it in the light most
favorable to Complainant, the Board must undertake the balancing specified by Section 33(c) of
the Act to determine whetherthe evidence presented is sufficient to sustain a claim of
unreasonable interference. The Board’s failure to undertake this analysis is the error of law
which is the basis for Boughton’s motion for reconsideration.
The Board is therefore required to assess the sufficiency ofthe evidence provided on each
of the applicable Section 33(c) factors, as required by the controlling Supreme Court case law,
3
THIS DOCUMENT IS FILED ON RECYCLED PAPER
Wells Manufacturing, Inc. v. IPCB, 73 Ill. 2d 226, 383 N.E.2d 148 (1978), and make a finding as
to whether collectively the evidence in the record, taken in the best light for the Complainant,
demonstrates a likelihood that Complainant may succeed on the merits on her claims of
“unreasonable interference.” Thus, the Board must go back and reconsider its May 6, 2004 order
and undertake this analysis.
IL
To withstand a motion for summary judgment at the close of discovery,
Complainant must have evidence supporting the essential elements of her
claim.
As stated by the Supreme Court in Celotex, “if the non-moving party cannot muster
sufficient evidence to make out its claim, a trial would be useless and the moving party is entitled
to summary judgment as a matter of law.”
~.
at 331. While it is true that “to make out its case”
ofan Illinois statutory nuisance violation, a complainant does not have to provide evidence on
every one of the Section 33(c) factors (Pirocessing and Books, Inc. v. PCB, 64 111. 2d 68, 351
N.E.2d 865 (1975)), the complainant must have a sufficient quantum of evidence to support a
Board finding that the complainant has a likelihood of success in proving “unreasonable
interference.” Wells Mfg. Co, 73 Ill. 2d at 383. In this case, Complainant does not.
Complainant’s Response incorrectly states that she has provided sufficient evidence to
withstand this Motion for Summary Judgment. Complainant’s Response at
5.
In fact,
Complainant has failed to provide evidence on any element of her Section 9(a) and 24 claims
except the alleged “interference.” As the Board is well aware, “interference” alone is not a
violation of the Act.
See e.g.,
Knox v. Tunis Coal Co., PCB 00-140, 2003 Ill. ENV LEXIS 2
(January
9,
2003) (finding that complainants had not proven substantial interference).
Complainant must have evidence of “unreasonable interference” as determinedby reference to
the Section 33(c) factors in order to succeed with her statutory nuisance claims and survive a
4
THIS DOCUMENT IS FILED ON RECYCLED PAPER
motion for summary judgment. Wells Mfg. Co., 73 Ill. 2d 226, 383 N.E.2d 148 (1978);
Kamholtz v. Sporleder, PCB No. 02-41, 2003 Ill. ENV LEXIS 97 (February 20, 2003); Logsdon
v. South Fork Gun Club, PCB No. 00-177, 2002 Ill. ENV LEXIS 692 (December 19, 2002); ~
v. LTD Commodities, PCB No. 99-19, 2001 Ill. ENV LEXIS 90 (February
15,
2001).
-
Since the Complainant in this case has not provided evidence on any of the other factors
that go to the reasonableness ofthe emissions, she is standing entirely on her evidence of
“interference” under Section 33(c)(i). Therefore, on this Motion for Summary Judgment, the
Board should take the unrebutted evidence on the Section 33(c) (ii) —(v) factors presented by
Boughton and weigh that evidence against Complainant’s evidence on the “interference.” If the
Board finds in favor ofBoughton on all of the other Section 33(c) factors, the sole basis for
denial ofthis Motion for Summary Judgment would have to be on a finding that the alleged
“interference,” taken in the best light for the Complainant, is
per se
unreasonable, i.e. that it
indicates a level ofinterference that is so significant that it makes the other factors irrelevant.
A multitude of cases have considered similar allegations of noise and dust and the
opinions in those case make it clear that the alleged interference in this case, even taken in its
best light for the Complainant, is not “unreasonable” in light of the strong and unrebutted
evidence on the other Section 33(c) factors offered by Boughton. A review ofjust a few ofthose
cases will make it clear that the evidence of interference in this case does not rise to the level of a
per se
nuisance. Knox v. Turns Coal Co., PCB 00-140, 2003 Ill. ENY LEXIS 2 (Jan. 9, 2003)
(Noise from a mine ventilation fan was not an unreasonable interference when complainant
could hear noise inside his house if the wind was “just right,” the noise kept complainants awake
at night, caused them to run the air conditioning slightly more, and caused complainant to spend
less time at his duck pond); Gardner v. Township High School District 211, PCB 01-86, 2002 Ill.
5
THIS DOCUMENT IS FILED ON RECYCLED PAPER
ENV LEXIS 403 (July 11, 2002) (Complainants failed to carry burden ofproving that noise
substantially interfered with theirlives given inconsistent testimony and testimony that the noise
was “very irritating” or an annoyance); Logsdon v. Bowman, PCB 01-42, 2001 III. ENV LEXIS
139~(March
15,
2001) (Where Complainant testified that he was forced to wear earmuffs in his
workshop and that the noise disturbed his sleep and gave him headaches, the Board held that the
“complainant had not produced sufficient evidence to-prove- that the noise from respondent’s
sawmill operation was substantial and frequent, and beyond minor or trifling annoyance and
discomfort”).
-
In Glasgow v. Granite City Steel, Complainants testified that they could hear a roar ‘like
a big wind tunnel’ coming from the plant, the squeal of the trucks’ brakes, their beds vibrate due
to activity at the facility, and that their homes shook so severely that one complainant’s glasses
would fall off of his VCR. PCB 00-221, 2002 ill. ENV LEXIS 112 (March 7, 2002). They also
alleged that they were awakened by vibrations, rattling noise from bulldozers, slamming noise
from trucks’ tailgates, general plant noise, shackle noise like rocks, pressure noise, and noise
from intercoms. One complainant claimed that booms from the Granite City Steel facility would
knock him out of bed, while another complainant said the booming would shake her house.
After considering all ofthe factors, the Board found there was an “interference,” but not
“unreasonable interference” under the Act.2 Therefore, there was no violation.
In comparison, in this case, the complaints regarding dust and noise were not
unreasonable given the factors under 33(c). One of Complainant’s witnesses claimed that he
2
The Board found for OCS on the following factors: the social and economic value of thepollutionsource~the
suitability of the source/priority of location; and the technical practicability and economic reasonableness of
reducing or eliminating the emissions, discharges or deposits. While the Board found the factor of subsequent
compliance neither for nor against GCS, the record is clear that Boughton has taken more action to mitigate any dust
and noise perceived to be emanating from its property than GCS.
6
THIS DOCUMENT IS FILED ON RECYCLED PAPER
keptthe windows of his house closed in the spring and summer because the dust was too great.
Another witness alleged that her family did not use theirbackyard because of the dust.
Complainant alleged that dust accumulated on her furniture and she could rarely open her
windows due to the dust. Complainant’s witnesses also claimed that the noise awoke their
children. Given the evidence set forth by Boughton on all 33(c) factors, as a matter of law, such
complaints do not rise to the level of unreasonable interference.
III.
Complainant is simply wrong as to who bears the burden- ofproof on
“unreasonable interference.”
What is troubling is that Complainant continues to believe that she has no responsibility
for proving the essential elements of “unreasonableness,” and, furthermore, that she has no duty
to rebut the evidence of “reasonableness” presentedby Boughton.” The leading Illinois Supreme
Court case, Wells Manufacturing Company v. Pollution Control Board, 73111. 2d 226, 233, 383
N.E.2d 148, 151 (1978), stated unequivocally:
The Act places the burden of proof on the Agency or other complainant to show
that the respondent has caused or threatened to cause air pollution, which in the
context of this case means unreasonable interference with the enjoyment of like or
property. (Ill. Rev. Stat. 1971, ch. 111 ½,par. 1031(c); Incinerator, Inc. v.
Pollution Control Board (1974), 59 Ill. 2d 290, 300.)
An examination ofthe series of Supreme Court cases leading up to Wells make it clear
that evidence on “unreasonableness” under the Section 33(c) factors is an integral part of a
complainant’s burden of proving a statutory nuisance violation under the Act. In fact, the
constitutionality of Section 9(a)’s “air pollution” provisions has been held to depend on the
standards for determining “unreasonableness” contained in Section 33(c). See City of
Monmouth v. Pollution Control Board, 57 Ill. 2d 482, 313 N.E.2d 161 (1974).
7
THIS DOCUMENT IS FILED ON RECYCLED PAPER
In Lonza, Inc. v. IPCB, 21 Ill. App. 3d 468, 472, 315 N.E.2d 652, 654 (3d Dist. 1974),
the Appellate Court rejectedthe argument that the Section 33(c) factors were not a part ofthe
Complainant’s burden, explaining:
-
-
The argument has been made that the factors in section 33(c) are
-
relevant only as matters of defense yet in City of Monmouth v. The
Pollution Control Board, filed 1974, Ill., 313 N.E.2d 161, the
Supreme Court in responding to respondent’s contention that
section 9 of the Environmental Protection Act was unconstitutional
for the reason that it did not contain sufficient standards for
determining what constitutes air pollution declared, ‘We hold that
Section 9(a), when read in conjunction with sections 3(b), 3(d) and
33(c), contains sufficient standards.’
Accordingly, to detennine the
existence of air pollution it is necessary to examine the factors
listed in section 33(c); The reasonableness described in section
33(c) refers both to the cause and effect of the emissions.
Section 31(c) provides
that
the burden shall be on the Agency or
other complainant to show either that the respondent has caused
or threatened to cause air or water pollution. According to the
Monmouth case a necessary prerequisite to determining the
existence ofair pollution is to examine the factors in section 33(c).
Therefore, such examination becomes part of complainant’s
burden under section 31(c).
If, as Complainant argues, the Complainant has no duty to present evidence addressing
the critical element ofher claim “unreasonable interference,” how can the Board make factual
findings that these standards have been met? In fact, Board decisions in which the Board has not
sufficiently detailed its consideration ofthe Section 33(c) standards in its opinions have been
reversed. Mystik Tape v. Pollution Control Board, 60111. 2d 330, 328 N.E.2d
5
(1975). The lack
of evidence in the record contesting Boughton’ s evidence on the remaining 33(c) factors requires
that summaryjudgment be granted.
Ifthe complainant doesn’t bear the burden ofproof on the elements ofits claim in these
cases, who does? Is the answer that the burden shifts to the respondent, once the complainant has
provided
primafacie
evidence of merely “interference,” as Complainant in this case suggests?
8
THIS DOCUMENT IS FILED ON RECYCLED PAPER
No
--
the leading U.S. and illinois Supreme Court case law from Celotex to Incinerator, Inc. and
Wells are clear on this point. The Complainant bears the full burden of coming forward with
evidence proving “unreasonable interference”
--
not just “interference.”
-
TJhe EPA had the burden of proving all essential elements ofthe
type of air pollution violation charged, and the Board must then
assess the sufficiency of such proof by reference to the section
33(c) criteria, basing thereon its findings and orders.
-
Incinerator, Inc. v. Pollution Control Board, 59 ill. 2d 290, 300, 319 N.E.2d 594 (1974).
Who bears the burden ofproof on the Section 33(c) factors in nuisance cases was
again made very clear by the Supreme Court in Wells Manufacturing Company v. Pollution
Control Board, 73 Ill. 2d 226, 383, 383 N.E.2d 148 (1978) in which the Court walked through
the evidence on each ofthe Section 33 (c) factors and concluded that the complainant had not
carried its burden of proofas to the technical practicability ofabating odors
—
factor (iv).
~. -
at 73 Ill. 2d at 236, 383 N.E.2d at 153. In fact, Dissenting Justice Clark in Wells, in his
pointed criticism of the majority opinion, argued that the Wells majority should have treated
Section 33(c)(ii)- (v) factors as simply “affirmative defenses” on which the Respondent bears
the burden proof. 73 Ill. 2d at 242, 383 N.E.2d at 155. This minority opinion is at odds with
the Illinois Supreme Court’s position in Incinerator, Inc. and its reaffirmation of this position
by the majority in Wells.3 The controlling Illinois Supreme Court law is Wells which makes
it clear that the burden of proof does not shift, that the Section 33(c) factors are not
“affirmative defenses,” and that “unreasonableness” is an essential element of the violation
that must be proven by the complainant.
~ Notably, the dissent in Wells recognized that the majority opinion effectively overruled the Supreme Court’s
1975 decision in Processing and Books, Inc. on the issue ofburden ofproof: “The majority opinion in the instant
case (Wells) silently overrules the Processing and Books, Inc.1, unanimous holding of this Court.” 383 N.E.2d at
155,679.
9
THIS DOCUMENT IS FILED ON RECYCLED PAPER
Although we have spent considerable effort to address Complainant’s misstatements
about who bears the burden ofproof, the fact is that even if Complainant didn’t bear the full
burden of proofas to unreasonableness from the beginning, summary judgment still should be
granted in this case because Complainant failed to rebut the evidence provided by Boughton.
Even if the Section 33(c) “reasonableness” factors were just “affirmative defenses” and the
burden ofproof on those factors were on the respondent, once the respondent has provided
evidence on those factors the complainant must have some evidence rebutting that evidence in
order to survive a motion for summary judgment. Celotex, 477 U.S. at 324. In this case,
Boughton has carried any such “affirmative defense” burden ofproof and the evidence
Boughton has placed in the record is unrebutted by any evidence from Complainant.
Therefore, even if there were a legal basis forarguing that Complainant does not have an
initial burden of proof as to “unreasonable interference” Complainant in this case has failed to
provide any evidence rebutting Boughton’s evidence and dismissal on summaryjudgment
should follow.
Under Celotex and the Illinois Supreme Court’s holdings in Incinerator and Wells and the
long line of statutory nuisance cases decided by the Board over the years, it is clear that this case
should be dismissed on summary judgment. The Complainant has presented no evidence of
interference which is so overwhelming that it must be deemed
per se
unreasonable
—
thus there is
no issue as to interference which would be material to the outcome of this case. There is also no
evidence of unreasonable emissions under any ofthe remaining factors, including the technical
feasibility of further reducing noise ordust from Boughton’s quarry operations, the critical factor
in Wells. Thus, Complainant cannot succeed in demonstrating “unreasonable interference”
under the Act and justice and the controlling Supreme Court decisions demand that this case be
10
THIS DOCUMENT IS FILED ON RECYCLED PAPER
dismissed on Summary Judgment in its entirety and with prejudice. See Celotex, 477 U.S. 317,
at 331, citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505 (1986) (“If the
non-moving party cannot muster sufficient evidence to make out its claim, a trial would be
useless and the moving party is entitled to summaryjudgment as a matter of law.”).
-
IV.
Complainant
has offered
no legal support for her
contention
that it
is
premature to grant summary judgment at this point.
Complainant’s contention that it is “premature” to require her to produce evidence on
anything but “interference” and thus premature to grant this Motion for Summary Judgment is
completely unfounded. She has failed to provide any legal support whatsoever for this position.
Rather, Complainant éontinues to point to the Board’s order in Loshen v. Grist Mill Confections,
.,
PCB 97-174 (Sept. 18, 1997) which, as Boughton has previously pointed out, involved a
motion for summary judgment
on the pleadings
—
not afterthe close ofdiscovery. In that case,
the Respondent filed a motion for summary judgment
two days
afterthe Complainant had filed
her first discovery requests, obviously before the Complainant had had received any discovery
from the Respondent. The Board’s opinion discusses illinois pleading requirements and makes it
clear that its denial of summary judgment in that case was based on its conclusion that the
complainant was “not required to present facts in the
complaint
concerning Section 33(c) of the
Act in order to file a
sufficient pleading...”
Slip. Op. at 3, 1997 WL 593982 (emphasis added).
That is a fundamentally different case than the case at bar where during a lengthy discovery
period Complainant had every opportunity to produce evidence supporting the essential elements
of her claim and to obtain discovery from Boughton.
The Complainant is essentially making the argument that the Board can
never
grant
summary judgment where a complainant alleges a nuisance
—
whether that complainant has
evidence to support such a claim or not. Response at 7. Her position is that the question of
11
THIS DOCUMENT IS FILED ON RECYCLED PAPER
whether there has been “unreasonable interference” doesn’t have to be proved until hearing.
Response at 10. This is simply an effort to avoid summary judgment and it is simply wrong.
Again, Complainant offers no support for this novel theory that would insulate statutory nuisance
claims from the legal procedures which apply to all other claims
—
whether under the Act or
un-der common law. If a complainant has the burden of proving “unreasonable interference,” as
the~SupremeCourt has held, and she fails to disclose evidence of “unreasonable interference”
during discovery, there is no reason that “unreasonable interference” can’t be determined on
summary judgment based upon the evidence and pleadings in a complete record
—
this is done in
nuisance cases all the time.
See, e.g.,
Hansen v. Orth, 247 Ill. App. 3d 411, 617 N.E.2d 357 (1st
Dist. 1993) (affirming grant of summary judgment in favor of defendant homeowner in the
neighbor’s nuisance action, finding the plaintiffs failed to produce evidence to support their
claim); Pyne v. Witmer,
159
ill.App.3d 254 (2dDist. 1987)
afj’d
129 Ill.2d 351, 543 NE.2d 1304
(1989) (affirming summary judgment for defendant property owner in auto accident case for
failure to support claim that foliage created an obstruction orencroachment so as to constitute a
public nuisance); 512 N.E.2d 993, Markowski v. City of Naperville, 249 Ill.App.3d 110, 617
N.E.2d 1251 (2~Dist. 1993) (affirming summary judgment for defendant City on public
nuisance claim in action challenging location of a road where plaintiff failed to produce
sufficient evidence of a statutory violation, a necessary element of its claim).
Contrary to Complainant’s statement, in Gardner v. Township High School District 211,
PCB 01-86 (Dec. 6, 2001), the Board did not make a blanket determination that “the issue of
unreasonableness is not the proper subject of summary disposition...” Response at 7. Rather, in
Gardner, the Board concluded that in that case the testimony of witnesses who had been
identified but apparently not deposed “would be directly relevant to the question of whether the
12
THIS DOCUMENT IS FILED ON RECYCLED PAPER
chillers cause unreasonable interference.” Thus, in that case the record was incomplete. In the
case at bar, all of Complainant’s witnesses have been deposed and the facts to which they would
attest at hearing are all in the transcripts in the record and can be examined for purposes of this
Motion for Summary Judgment.
-
No serious claim can be made that a motion for summary judgment is premature when a
motion is filed after over two years of discovery. Celotex, 477 U.S. 317, at 318 (Holding
Summary Judgment motion is not premature after one year of discovery.). At the close of
discovery and in response to a Motion for Summary Judgment, Complainant has a duty to
produce all of the evidence she has supporting the alleged violation of “unreasonable
interference.” In some cases, like Gardner, a Respondent may not have done its homework and
deposed all of Complainant’s witnesses. But, in this case, Boughton did its homework and all of
the ~evidenceis in the record. Thus, this dispositive summaryjudgment motion is not premature~
On the contrary, it is timely, it is completely appropriate and in order and, in fact, it is favored
because the totality of evidence presented by Complainant and admissible at hearing does not
support the central element of the violation. See Celotex, 477 U.S. at 327. (“Summary judgment
procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral
part of the Federal Rules as a whole, which are designed ‘to secure the just, speedy, and
inexpensive determination of every action.’ See Schwarzer, ‘Summary Judgment Under the
Federal Rules: Defining Genuine Issues of Material Fact,’ 99 F.R.D. 465, 467 (1984).”)
V.
The Complainant
is poised to misuse
the Board’s
May 6, 2004 order to
try to
introduce evidence at
hearing that was not provided during discovery.
The Board has made it clear several times that discovery is closed and no new evidence
can be manufactured at this late date and brought into a hearing. Aug. 7, 2003 Slip Op. at 4;
Sept. 4, 2003 Slip Op. at 2; May 6, 2004 Slip Op. at 1. Yet the Board’s May 6, 2004 conclusion
13
THIS DOCUMENT IS FILED ON RECYCLED PAPER
that there are remaining issues of material fact pertaining to the level of “interference” has
unfortunately been interpreted by the Complainant as opening the door for the introduction of
additional evidence
—
not provided in discovery
—
at hearing. Complainant is desperate to keep
this weak case alive and is looking for any opportunity to reopen the door on the long pending
and now closed evidentiary period. This type of ambush litigation tactic is explicitly prohibited
by Board Rules 101.616 and 101.800
(35
Ill. Admin. Code 101.616 and 101.800) and by Illinois
Supreme Court Rule 219 (“Consequences of Refusal to Comply with Rules or Order Relating to
-
Discovery or Pretrial Conferences”). If Complainant is allowed to bring in evidence on
“unreasonable interference” which was not made available in discovery it would constitute
prejudicial and reversible error. ~ Meredith v. Principi, No. 00 C 2476, 2001 WL 856283, at
*1 (E.D. Ill. July 27, 2001) (stating that a “complainant cannot wait until she sees a defendant’s
motion to then conduct unilateral discovery with-the expectation that such testimony could be
used to fend off summary judgment”); Coils v. City of Chicago, 212 ill. App. 3d 904, 954 (1st
Dist. 1991) (holding “that fractional discovery and fractional disclosure are not to be tolerated”).
A complainant cannot circumvent summary judgment at the end of discovery by contending it
may be able to bring in more evidence later at hearing. The system simply doesn’t work that
way.
CONCLUSION
As stated in Boughton’s motion, this is actually a very simple and straight-forward case.
It represents an extreme, even for nuisance cases, in the Complainant’s complete absence of
evidence on “unreasonableness.” The Complainant who alleges noise and dust interferes with
her enjoyment of her property, moved next door to an existing quarry and subsequently made her
living selling property and homes to others next to the same quarry. Her property values have
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not gone down
—
they have increased at a higher rate than other comparable subdivisions not
located adjacent to a quarry. The Appellate Court has held this very quarry is the “highest and
best use” of the quarry property. Boughton has voluntarily undertaken an entire program of
noise and dust reduction measures that has dramatically reduced emissions and that meets and
exceeds the measures the Board has imposed in other cases. All ofthis is unrebutted.
-The Board should not allow summary judgment to be circumvented on a specious basis
where there is no likelihood of success on the merits. Boughton urges the Board to take this
opportunity to reaffirm the holding in Wells, straighten out Complainant’s muddy thinking about
the elements of a nuisance claim under the Act, and provide clear guidance for the swift
disposition of future nuisance cases by summary judgment where the evidence is insufficient.
Respectfully submitted,
Boug~~c~d
Mat ~als,Inc.
By One of Its Attorneys
Patricia F. Sharkey
Kevin Desharnais
Mark R. Ter Molen
Mayer, Brown, Rowe & Maw LLP
190 South LaSaile Street
Chicago, Illinois 60603-3441
(312) 782-0600
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CERTIFICATE OF SERVICE
Patricia F. Sharkey, an attorney, hereby certifies that a copy of the attached Notice of
Filing and BOUGHTON’S REPLY TO COMPLAINANT’S MEMORANDUM IN RESPONSE
TO RESPONDENT’S MOTION FOR RECONSIDERATION was served on the persons listed
below by First Class U.S. Mail, proper postage prepaid, on August 19, 2004.
Bradley Halloran
-
-
Hearing Officer
-
Illinois Pollution Control Board
-
James R. Thompson Center, Suite 11-500
100 West Randolph Street
Chicago, IL 60601
(Courtesy Copy)
Michael S. Blazer
Matthew E. Cohen
The Jeff Diver Group, LLC
1749 S. Naperville Road, Suite #102
Wheaton,IL 60187
(U.S. Mail)
Kenneth A. Carlson
Tracy Johnson & Wilson
Sixth Floor, Two Rialto Square
116 North Chicago Street
Joliet, IL 60432
(U.S. Mail)
~tn~a~harkey
PatriciaF. Sharkey
Mark R. Ter Molen
Kevin Desharnais
Mayer, Brown, Rowe & Maw LLP
190 South LaSalle Street
Chicago, Illinois 60603-3441
(312) 782-0600
-
THIs DOCUMENT HAS BEEN PRINTED ON
RECYCLED PAPER
