NUV 10

H

~Uuj

1K I

BEFORE THE

PollutionSTATE

OFControlILLINOISBoard

ILLINOIS POLLUTION CONTROL BOARD

GINA PATTERMANN,

)

)

Complainant,

)

)

V.

)

PCBNo. 99-187

)

(Citizens Enforcement

-

Noise, Air)

BOUGHTON TRUCKING AND

)

MATERIALS, INC.,

)

)

Respondent.

)

NOTICE OF FILING

TO:

Michael S. Blazer

Matthew E. Cohn

The Jeff Diver Group, LLC

1749 5. Naperville Road, Suite #102

Wheaton,1L60187

Please take notice that on November 10,2003, I filed with the Illinois Pollution Control

Board this Notice ofFiling, Motion For Summary Judgment, and Request for Leave to File

Reduced Number ofCopies ofVoluminous Attachments to Motion for Summary Judgment,

copies ofwhich are attached and hereby served upon you.

Dated: November 10, 2003

BOUGHTON TRUCKJNG AND MATERIALS, INC.

By:

Mark R. Ter Molen, Esq.

Patricia F. Sharkey, Esq.

Kevin 0. Desharnais, Esq.

MAYER, BROWN, ROWE & MAW

190 S. La5alle Street

Chicago, Illinois 60603

(312) 782-0600

One

THIS DOCUMENT HAS BEEN PRINTED ON RECYCLED PAPER

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CERTIFICATE OF SERVICE

Patricia F. Sharkey, an attorney, hereby certifies that a copy ofthe attached Notice of

Filing, Motion For Summary Judgment, and Request for Leave to File Reduced Number of

Copies ofVoluminous Attachments to Motion for Summary Judgment was served on the person

listed below by U.S. First Class Mail, postage prepaid, on November 10,2003.

Michael S. Blazer

Matthew E. Cohn

The JeffDiver Group, LLC

17495. Naperville Road, Suite #102

Wheaton, IL 60187

-

Patricia F. Sharkey

Attorney for Respondents

Mayer, Brown, Rowe & Maw

190 South LaSalle Street

Chicago, Illinois 60603

312-782-0600

THIS DOCUMENT HAS BEEN PRINTED ON RECYCLED PAPER

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i*,~

CLERK’S

NOV 102003

OFFICE

ILLINOIS POLLUTION CONTROL BOARD

STATE

OF

IWNOIS

Pollution Control Board

GINA PATTERMANN,

)

)

Complainant,

)

PCB 99487

v.

)

(Noise,Air)

)

BOUGHTON

TRUCKING AND

)

MATERIALS, INC.,

)

)

Respondent.

)

REQUEST FOR LEAVE TO FILE REDUCED NUMBER OF COPIES OF

VOLUMINOUS ATTACHMENTS TO MOTION FOR SUMMARY JUDGMENT

NOW COMES Respondent, Boughton Trucking

and

Material, Inc. (“Boughton”), by its

attorneys, Mayer, Brown, Rowe & Maw,

and

requests leave to file a reduced number of

certain

fill attachments to its Motion of Summary Judgment which is filed herewith.

In support

thereof, Respondent states:

1.

Two ofthe exhibits to affidavits which are attachments to the Motion for

Summary Judgment, are reports that contain a largenumber ofdata pages.

2.

The exhibits are Exhibit B to the Affidavit ofMichael MCann, which is a report

entitled “Property value Impact Study & Highest & Best Use Analysis,” and Exhibit C to the

Affidavit ofWayne Szepelak, which is a visible emissions compliance test report.

3.

Respondent requests leave to file an original and 3 copies ofthe full reports and 5

copies ofthe narrative reports without the data. The conclusions from that data are stated

elsewhere in the narrative sections of the reports which are provided in all copies. In the case of

the McCann study, the aerial photos and subdivision plats contained in the full reports have been

reproduced in Attachment 16 to the Motion which is provided with all copies.

This Document is Filed on Recycled Paper

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4.

Full copies of each of the reports which form these exhibits were previously

provided to Complainant in the course of discovery.

WHEREFORE, Respondent requests leave to file an original and 3 fill copies ofthese

exhibits and 5 copies ofthese exhibits without the backup data.

Respec~flfllysubmitted,

November 10, 2003

___________________________

BOUGH ON TRUCKING

AND MATERIALS, INC.

By One ofIts Attorneys

Patricia F. Sharkey

Mark R. Ter Molen

Kevin Desharnais

Mayer, Brown, Rowe & Maw

190 South LaSalle Street

Chicago, IL 60603

312-782-0600

This Document is Filed on Recycled Paper

---

CLERK’S OFFV’r

ILLINOIS POLLUTION CONTROL BOARD

NOV 102003

GINA PATTERMANN,

)

STATE

OF

IWNOIS

)

Pollution

Control Board

Complainant,

)

PCB

99-187

v.

)

(Noise, Air)

)

BOUGHTON TRUCKING AND

)

MATERIALS, iNC.,

)

)

Respondent.

)

MOTION FOR SUMMARY JUDGMENT

NOW COMES Respondent, Boughton Trucking and Material, Inc. (“Boughton”), by its

attorneys, Mayer, Brown, Rowe & Maw, and moves the Board to grant summary judgment in

favor ofRespondent and against Complainant as to each and every claim in this matter pursuant

to

35

III. Admin. Code 101.516.

INTRODUCTION

Complainant’s failure to establish the essential elements ofthe claims made in her

complaint requires that summary judgment be entered in favor of Respondent as to each and

every claim in this matter and dismissal ofthe Complaint in its entirety.

I.

LEGAL STANDARD FOR SUMMARY JUDGMENT

Summaryjudgment may be granted when “thepleadings, depositions, and admissions on

file, together with the affidavits, if any show that there is no genuine issue as to any material fact

and that the moving party is entitled to a judgment as a matter oflaw.” Dowd & Dowd v.

Gleason, 181 Ill.2d 460, 483, 693 N.E. 2d 358, 370 (1998). To withstand a motion for summary

judgment, Complainant must present a factual basis which would arguably entitle her to a

judgment. Gauthier v. Westfall, 266111. App. 3d 213, 639 N.E. 2d 994 (2’~’Dist. 1994).

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When a Complainant has no evidence on which a court or in this case the Board can rule

in her favor, summary judgment is encouraged as an aid in the expeditious disposition of a

lawsuit. Allen v. Meyer, 14 Ill.2d 284, 292, 152 N.E. 2d 576 (1958). In fact, summary judgment

is required upon such a showing. Section 101.516(b) ofthe Board’s rules (35 Ill. Admin. Code

101.516(b)) states: “If the record, including pleadings, depositions and admissions on file,

together with any affidavits, shows that there is no genuine issue ofmaterial fact, and that the

moving party is entitled to judgment as a matter of law, the Board

will

enter summary

judgment.”). Section

5

ofthe Enviromnental Protection Act (“Act”) (735 ILCS 5/2-1005(c))

also states: “The judgment sought

shall

be rendered without delay if the pleadings, depositions,

and admissions on file, together with the affidavits, if any, show that there is no genuine issue as

to any material fact and that the movingparty is entitled to a judgment as a matter oflaw.”

II.

THE RECORD ON SUMMARY JUDGMENT

“If from the papers on file, a plaintiff fails to establish an element ofhis cause of action,

summary judgment for the defendant is proper.” Gauthier, Id. at 220. Discovery in this

proceeding is now closed and, thus, the evidence contained in the papers on file, i.e. the

pleadings, discovery responses, depositions, and admissions on file and the affidavits

accompanying this motion, constitute all ofthe evidence which would be admissible at hearing.

Based on this evidence, Complainant has failed to establish a violation of the Board’s permit,

noise or air regulations and has also failed to establish “unreasonable interference with the

enjoyment of life or property” in violation of Section 9(a) or Section 24 ofthe Act. Therefore,

summary judgment in favor ofRespondent is required.

The evidentiary record in this case includes: Respondent’s interrogatories (Attachment I

hereto) and Complainant’s Answers thereto (Attachment 2 hereto); Respondent’s document

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requests (Attachment 3 hereto) and Complainant’s responses thereto (Attachment 4 hereto);

Respondent’s responses to Complainant’s interrogatories (Attachment

5

hereto) and document

requests (Attachment 6 hereto), with Complainant’s interrogatories and documents are

referenced therein; depositions of Complainant herself and four other witnesses identified by

Complainant (Attachments 7, 8, 9, 10, and 11 hereto respectively), and the affidavits and reports

of the witnesses whom Respondent properly disclosed during discovery and whom Respondent

would call if this matter were to go to hearing (Attachments 12, 13 and 14 hereto).

As a matter of law, Complainant cannot supplement or expand the evidence at this point.

.A~Complainant cannot wait until she sees a defendant’s motion to thenconduct unilateral

discovery with the expectation that such testimony could be used to fend offsummary

judgment.” Meredith v. Principi. 2001 WL

856283,

(E.D. Ill. July 27, 2001)’ In Meredith, the

court struck affidavits ofpersons not disclosed during discovery and granted summary judgment

based on Complainant’s failure to introduce admissible evidence to withstand summary

judgment.

Complainant bears the burden ofboth coming forward with evidence and the burden of

proof. the burden ofproofalways rests with the party who asserts a fact or proposition as an

element ofhis claim. Illinois Evidence Manual,

3td

Ed., Robert. J. Steigmann, Section 5.02.

Furthermore, the burden ofproducing evidence is initially on the party who has the burden of

proof. Id., Section 5.03, p. 287; Williams v. Koontz, 282 Ill. App. 3d 389, 668 NE2d 102

(1st

Dist. 1996) In this case, the Complaint is over four years old and Complainant has had ample

time to disclose any evidence on which she bases her claims during the discovery period. The

Complainant chose not to depose Respondent’s disclosed witnesses. Therefore, Respondent has

Because this case is only available through its Westlawcitation, a copy is attached hereto as Attachment 18.)

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provided the substance of its key witnesses testimony in the form of affidavits attached to this

motion. (Attach. 12, 13, and 14 hereto.) She also chose not to retain her disclosed expert witness

for his noticed deposition and was sanctioned by the Board for doing so by the exclusion ofthat

witness and any testimony he mayhave offered.2 See Board’s Order in this case dated

September 4, 2003, excluding Complainant’s expert witness and making it clear that

Complainant may not present any new witnesses. Thus, all ofthe witnesses and evidence that

Complainant will be allowed to present at hearing are now before the Board. Ifthe Board finds

that the ComplaInant has not carried her burden ofproofbased on this evidence, it should rule on

this case right now. Neither the Board’s nor the parties’ resources will be well spent in bringing

this case to hearing.

III.

COMPLAINANT HAS FAILED TO ESTABLISH A VIOLATION OF THE

ACT OR BOARD REGULATIONS

The Complaint alleges violations ofthe following regulatory and statutory provisions3:

1.

Section 9 ofthe Act (Mr pollution)

2.

Section 201.141 ofthe Regulations (Air pollution)

3.

Section 901.102(a) (Daytime numeric noise limitations)

4.

Section 901.102(b) (Nighttime numeric noise limitations)

5.

Section 901.104 ofthe Regulations (Impulsive sound numeric limitations)

6.

Section 900.102 ofthe Regulations (Noise pollution)

7.

Section 24 ofthe Act (Unreasonable noise)

2The exclusion of experts has been upheld though the Complainant may thereby prevented from establishing a

necessary element ofhis or her cause of action. Gauthierv. Westfall, 266 111. App. 3d. 213, 223, 639 N.E. 2d

994,1002 (1994) citing Barth v. Reagan, 139 IlL2d 399, 564 N.E. 2d 1196 (1990) (Holding that the trial court did

not err in barring testimony of Complainant’s expert witness on the standard ofcare in a legal malpractice action and

defendant was entitled to a directed verdict). In this case, there is no evidence that Complainant’s excluded expert’s

opinion would have establisheda necessary element of her case in any event.

The Complaint, as amended, alleged violations of Section 3.02, 9, 23 and 24 ofthe Act and Section 201.102,

201.141,900.102,901.102(a), 901.102(b), and 901.104 of the Board’s regulations (“Regulations”). However, on

September 23, 1999, the Board dismissed the allegations pertaining to Sections 3.02 and 23 of the Act and Section

201.102 ofthe regulations as frivolous.

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Although the Complaint is lacking in specificity, all ofthe potential air and noise claims

Complainant may have intended can be categorized as allegations that Boughton has 1)

constructed or operated its facility without a pennit or in violation ofa permit condition 2)

violated Board regulations, andJor 3) generally caused “airpollution” or“noise pollution” which

unreasonably interferes with the enjoyment oflife.

The Complainant has failed to produce objective evidence supporting any of these

claims. The following is a discussion ofeach ofthe claims and the evidence provided by the

Complainant and Respondent that is pertinent to each.

A.

COMPLAINANT HAS NO EVIDENCE OF PERMIT VIOLATIONS

Complainant has entirely failed to carry her burden ofproofas to any permit violations.

Complainant has provided no evidence that Boughton hasn’t obtained all proper permits or is

operating in violation ofits air pollution control permit. Boughton’s June 22, 2001 First Set of

Interrogatories to Complainant Gina Pattermann (“Boughton’s Interrogatories”) (Ex. 1 hereto)

specifically asked Complainant to:

“1.

Identify with particularity each and every fact on which

you rely and all bases for your contention that respondent has

violated Section 9 ofthe Act.”

In her July

25,

2001 Answer to this interrogatory, Complainant made no reference to and

provided no evidence ofa violation ofSection 9(b), i.e. an air pollution control permit violation.

See Attachment 2 hereto. In addition, Complainant offered no witnesses with evidence of a

pennit violation. The scope ofeach ofComplainant’s witnesses testimony was stated to pertain

solely to how Respondent’s actions affects his or her life. See Attachment 2, Answer 13.

Furthermore, on deposition, neither Complainant nor any ofComplainant’s witnesses offered

any evidence pertaining to a permit violation. See Depositions ofGina Pattermann, William

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Jene, Carlene Jenkins, Lisa Collins and Donald Boudreau, Attachments 7, 8, 9, 10 and 11 hereto

respectively.

In fact, the only evidence in the record that is relevant to any Section 9(b) claim makes it

clear that Boughton has a valid illinois EPA air pollution control permit and is in compliance

with the provisions ofthat permit. In response to Complainant’s discovery request, Boughton

provided Complainant with a copy ofBoughton’s valid air pollution control operating permit

issued by the Illinois Environmental Protection Agency on January 13, 2000. Boughton also

provided Complainant with a copy ofa 1998 New Source Performance Standards compliance

test report. Both the permit and the compliance test report are attached

as

Exhibit B and C to the

Affidavit of Wayne Szepelak which is Attachment 12 hereto.

Thus, ifthe Complaint is read as stating a claim of a permit violation under Section 9(b),

Complainant has offered no proofof such and summary judgment in favor of Respondent is

proper as to any violation ofthe permit requirements of Section 9(b) ofthe Act.

B.

COMPLAINANT ALSO HAS NO EVIDENCE OF REGULATORY

VIOLATIONS

Section 9 (a) ofthe Act prohibits the violation ofany Board standards or regulations.

Section 201.141 of the Regulations, which the Complainant also cites, simply restates this

prohibition.4 The other regulatory violations alleged are ofnoise regulations.5 They include a

violation of Section 901.102(a) and (b) (the numerical daytime and nighttime noise limitations)

and a violation of Section 901.104 (impulsive noise numerical limitations). As is discussed

below, Complainant has provided no evidence that Boughton has emitted noise in excess ofany

numerical limitation. As such, shehas failed to carry her burden ofproof and summary

~Section 201.141, impertinent part, states: “No person shall cause orthreaten or allow the discharge or emission of

any contaminant into the environment.. .so as to.. cause or tend to cause air pollution in Illinois...”

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judgment in favor of Respondent is proper as to the alleged violation of Section 901.102(a) or (b)

and any violation of Section 901.104.

Section 901.102(a) and (b) prohibit the emission ofsound during daytime and nighttime

hours, respectively, from any property-line-noise source located on Class C land, such as the

Boughton lll~~~Street quarry, to any receiving Class A land, such as a residentialproperty in the

River Run subdivision, in excess ofcertain numeric limitations at each ofnine different

frequencies. Similarly, Section 901.104, prohibits the emission of“impulsive sound” from any

receiving Class C land, such as the Boughton quarry, which exceeds a specified numeric

allowable A-weighted sound level when measured on any Class A receiving land, such as the

RiverRun subdivision.

Section 900.103(b) ofthe Board’s regulations establishes the measurement procedures

that are required to determine whether emissions ofsound comply with any limitation in 35111.

Admin. Code 901, including both Section 901.102 and Section 901.104. Section 900.103(b)

requires that all measurements and all measurement procedures to determine whether emissions

ofsound comply with 35 Ill. Adm. Code 901 must be based on Leq averaging using a reference

time ofeither at least 1 hour or, for “steady sound” as defined in Section 900.101, 10 minutes.

All measurements of“steady sound” must be corrected for background noise in accordance with

the procedures in Part 910 of the Regulations and must be in conformity with five specified

American National Standard Institute specifications, i.e. ANSI 51.4-1983, ANSI Sl.6-1984,

ANSI S1.11-1986, ANSI S1.13-1995, and ANSI S12.9-1983. These procedures are designed to

ensure the accuracy ofthe sound measurements used to determine compliance with the Board’s

numerical standards in Part 901.

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Complainant’s have provided no sound measurement documentation. Furthermore, to the

extent that the Complainant claims to have made sound measurements, she admits that they were

not obtained pursuant to any formal procedure. (Attachment 7, p.

75)

Thus, these claims cannot

be supported by evidence meeting the requirements of the Section 900.103 for the determination

ofcompliance with the regulatory numerical limitations.

Respondent, in its Interrogatory #4 (Attachment I, Par. 4), specifically asked

Complainant to identify facts supporting her contention that Boughton has violated the daytime

or nighttime numeric limits:

“Identify with particularity each and every fact on

which you rely and the bases for your contention

that respondent has violated any part of35 Ill.

Admin. 901.102 ofthe Board’s regulations. Identify

each document related to this interrogatory.”

Complainant responded stating only the following:

“I have a sound meter that measures frequencies

between 500 and 10,000 HZ. I have measured sounds

above 55 dB on several occasions between 7:00 .am.

and 10:00 p.m.” (See Attachment 2, Answer #4.)

Complainant provided no other particulars, including no documentary evidence that these

measurements were actually takenor that they were taken in conformity with the procedures

requiredby Section 900.103. She provided no documents that respond to this interrogatory or

Respondent’s related document request.

In its Interrogatory # 5, Respondent also asked Complainant for any facts and documents

supporting Complainant’s claim that Boughton has violated Section 901.104, the impulsive noise

limits. Complainant responded stating that she has a sound meter that measures frequencies

between

500

and 10,000 Hz and that she has measured sounds above 47 dB on several occasions

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between 10:00 pm and 7:00 am. See Attachment 2, Answer

#5.

Again, she provided no further

detail and no documentation.

At her deposition, Ms. Pattermann stated that she had taken noise measurements in

November of2002 from her house with a handheld Radio Shack sound meter, but admitted that

she had used no formal procedure. (Attachment 7, pp. 64, 75). When asked whethershe

followed any particularprocedure when taking her measurements, she stated:

“No. I just stand there and hold it right in the

doorway.. .Usually for about five to ten minutes... .I’m

assuming that I am monitoring noise just because I can’t

remember

if I

was suppose to put it on the A or the C band,

but Greg told me what band I should have it on. I think it

was the A band, to monitor the correct noise level.”

(Attachment 7, p. 75-76)

Absent compliance with Section 900.103 procedures, any measurements Complainant

mayhave taken cannot be used to demonstrate a regulatory violation of Section 901.102 or

Section 901.104.

Ms. Pattennann also stated that she had measured sounds within the past 6 months,

“Novemberish,” but could not provide any specific dates. When asked if she had a log ofher

noise observations, she said “I have that somewhere so I will share that with you because it

probably is going to be a hearing exhibit.” (Attach. 7, pp.71-72). Although the deposition notice

and subpoena required that she bring to her deposition any documents that were relevant to her

testimony, Ms. Pattermann brought no documents to her deposition. (j4~p.3) IfMs. Pattermann

had any such log, she failed to provide it as an update to her discovery responses a required by

Section 101.616(h) ofthe Board’s procedural regulations (35 III. Admin. Code 101.616(h)).

Moreover, she failed to provide such documentation at any time during the discovery period. As

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a result of failing to provide this information during discovery, she is precluded from doing so at

hearing.

Complainant’s witness, William Jene, also stated in his deposition that he monitored

noise on his property with a decibel meter that he purchased. But he stated he did not have any

monitoring records. (Attachment 8, p.29 —30) Complainant’s other three witnesses stated, in

their depositions, that they had not taken sound measurements. (Collins, Attach. 10, p. 32;

Jenkins, Attach. 9, p. 26; and Boudreau, Attach. 11, pp.

58-59)

Based on Complainant’s lackofevidence ofany noise measurements meeting the

requirements ofSection 900.103, her claims of a violation of the numerical limits in Section

901.102 or 901.104 must fail. Therefore, summary judgment in favor ofthe Respondent is

required under the law as to the alleged violations ofSection 901.102(a) and (b) and Section

901.104.

C.

COMPLAINANT HAS NO EVIDENCE OF EMISSIONS OF NOISE OR

DUST

WHICH

UNREASONABLY INTERFERE WITH THE

ENJOYMENT OF LIFE

The remaining allegations in the Complaint are all allegations that emissions ofnoise or

Thedust questionemanatingbeforefromthetheBoardBoughtonis notfacilitywhether“unreasonablythe Complainantinterfereand herwithwitnessesthe

enjoymenthave oflife.”6

experienced noise and dust, or even whether that noise and dust interferes in theirlives. Rather

6

Section 9(a) prohibits the emission of any “contaminant” so as to cause “air pollution.” As these terms are defined

vnder the Act, the emission of either noise or dust may constimte “air pollution” if it is “in sufficient quantities and

of such characteristics and duration to be injurious to human, plant, or animal life, to health, or to property, or to

unreasonably interfere with the enjoyment of

41e

orproperty.”

emphasis added See Section 3.02 and 3.06 of the

Act (415 ILCS 5/3.02 and 3.06).

Similarly, Section 900.102 prohibits the emission of sound beyond the boundariesof one’s property so as to

cause noise pollution in Illinois. “Noise pollution” is defined in Section 900.101 of the Regulations as: the emission

of sound that

unreasonably interferes

with the enjoyment of4/i

or with any lawful business or activity.”

Finally, Section 24 of the Act prohibits the emission of any noise beyond the boundaries ofone’s property that

unreasonably interferes

with the enjoyment

oflife.

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the question is whether those emissions have “unreasonably interfered” with Complainant’s

enjoyment oflife. Charter Hall v. Overland, PCB 98-81, Slip. Op. p.17 (Oct. 1, 1998); Kvatsak

v. St. Michael’s Lutheran Church (PCB 89-182, Slip. Op. at p. 9, (Aug. 30, 1990)

Whether the emission ofnoise or dust is “unreasonable” is determined by examining the

factors in Section 33(c) ofthe Act (425 ILCS

5/33(c))

which states:

“In making its orders and determinations the Board shall take into

consideration all the facts and circumstances bearing upon the

reasonableness of the emissions, discharges, or deposits involved

including, but not limited to:

i.

the character and degree of injury to, or interference with

the protection ofthe health, general welfare and physical property

ofthe people;

ii.

the social and economic value ofthe pollution source;

iii.

the suitability or unsuitability of the pollution source to the

area in which it is located, including the question of priority of

location in the area involved;

iv.

the technical practicability and economic reasonableness

of reducing or eliminating the emissions, discharges or deposits

resulting from suchpollution source; and

v.

any subsequent compliance.

Complainants evidence on her claims of“unreasonable interference with the enjoyment

oflife” consists solely ofwitness testimony. Respondent deposed Complainant and each ofher

fourwitnesses during the discovery period. The full transcripts from these depositions are

contained in Attachments 7, 8, 9, 10 and 11 hereto. Ifthis matter were to go to hearing,

Respondent’s own witnesses would provide testimony as to the reasonableness ofthe emissions

complained of. The substance ofthat testimony is provided in three affidavits provided with this

motion in Attachments 12, 13 and 14 hereto. A review ofthis evidence, which is discussed in

detail below, demonstrates that Complainant’s allegations are not supported by evidence of

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unreasonable emissions from the Boughton facility or “unreasonable interference with the

enjoyment oflife.” Thus, summary judgment in favor ofthe Respondent as to the alleged

violations of Sections 9(a) and 24 of the Act and Section 900.102 ofthe Regulations is required.

1.

SECTION 33(c)Q): CHARACTER AND DEGREE OF INTERFERENCE

The Board has held that “Sounds from a source must

objectively

affect enjoyment oflife

to constitute an interference.” Charter Hall v. Overland, PCB 98-91, Slip, at p. 17 (Oct. 1, 1998).

emphasis added. In other words, the effect cannot be a purely subjective matter. In assessing

the character and degree of interference experienced by a noise complainant, the standard applied

by the Board is whether the noise “substantially and frequently interferes” with the enjoyment of

life “beyond minor or trifling annoyance or discomfort.” Charter Hall, at p. 18; Kvatsak v. St.

Michael’s Lutheran Church, PCB-89-1 82, Slip. Op. at p. 9 (Aug. 30, 1990).

Complainant and her witnesses allege that their lives have been affected by various

noises and dust emitted from Boughton’s 111±Street quarry. The emissions which the

Complainant and her witnesses believe to be emanating from the Boughton quarry can be

divided into three categories: blasting noise ,process and vehicle noise, and dust.

a.

BLASTING NOISE

With regard to blasting, one of Complainant’s witnesses, Lisa Collins, stated in

deposition that she found the blasting to be “annoying” (Attachment 10, p.28), however, the

annoyance appears to have been associated more with the ground vibration from the blast than

with noise. Ground vibration is not regulated under the Act or the Board’s regulations and is not

within the jurisdiction ofthe Board. Carla Jenkins stated in deposition that the noise from blasts

woke her daughter, knocked valances off ofwindows, and cracked walls. (Attachment 9, p. 38).

Again, these concerns appear to center around the ground vibration associated with the blast

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ratherthan the noise. Ms. Jenkins also admitted that she could not distinguish between blasts at

Vulcan and blasts at Boughton. (Attachment 9, p. 28). Donald Boudreau, when asked if he had

heard any blasts himself stated: “Yes

—

I have felt them, I haven’t heard them.” (Attachment 11,

p.

50).

William Jene admitted that, although he has lived in River Run since 1999, he could not

recall any specific instance in which he heard a blast that was troublesome to him. (Attachment

8, p. 34). He also admitted that he couldn’t distinguish whether blast noise was emanating from

the Boughton quarry or the Vulcan quarry. (Attachment 8, p. 27). Complainant herself stated in

her deposition,

“...,

blasting is not a huge issue forme. I know for some ofmy neighbors it is,

but it’s not for me. Blasting happens once or twice a week. It’s just not a huge issue forme,”

(Attachment7, p. 93).

In summary: the witness testimony offered by Complainant on the issue ofblasting noise

does not rise to the level of“unreasonable interference” as that standard has been interpreted by

the Board. Charter Hall v. Overland, PCB 98-91, Slip Op.at p. 18 (Oct. 1 ,l998). Neither

Complainant nor any ofher witnesses have stated facts that demonstrate that blasting noise from

Boughton’s operations “substantially and frequently interferes” with the enjoyment oflife

“beyond minor or trifling annoyance or discomfort.” Moreover, blasting is a necessary

component ofquarry operations ofwhich Complainant and each ofher witnesses were aware or

should have been aware at the time that they purchased theirproperties.

b.

PROCESS

AND

VEHICLE NOISE

Complainant and her witnesses all state that they can hear process noises from

quarry operations. This is not surprising. Complainant and all ofher witnesses bought and/or

built homes that directly abut the Boughton property and are a short distance across 111th Street

from the Vulcan 111th Street quarry. The movement ofresidential development right up to the

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boundary ofthe quarry properties is graphically depicted in the attached aerial photographs.

(See Attachment 16 hereto). The question for the Board to decide is whether the process noise

that Complainant and her neighbors hear is “unreasonable” in light ofall of the Section 33(c)

factors, including the pre-existence ofthe quarry and the measures taken by Boughton to reduce

noise and dust to accommodate its new neighbors. (See discussion in Sections llI.C.2, 3, and 4

below).

i.

Deposition of Lisa Collins

Lisa Collins, who bought her home from Complainant Gina Pattemiann’s husband in

1997 and whose house backed directly up against Boughton’s property, stated that she didn’t like

to be outside gardening because ofthe noises generated by the quarry. She stated

“. .

.one ofthe

reasons that we wanted that lot is because it backed up to the river, and it was huge. It was one

ofthe biggest lots in RiverRun, and I just like to be outside gardening, and the noise bothered

me. I felt like I wasn’t in a natural environment. It felt like being in a big city because I could

hear the conveyor belts and trucks beeping, and Ijust didn’t like it.” (Attachment 10, p. 17 -18).

She could not hear the process noises in her housewith the windows closed. (Attachment 10, p.

33). Thus, the interference she complains of is being “bothered” by quarry process noises in a

backyard and through open windows in a home that was built in close proximity to two existing

quarries.

Ms. Collins stated that she didn’t know that the property behind her house, including the

natural areabetween her house and the river and the 50 foot berm on the other side ofthe river,

was owned by Boughton. (Attachment10, p. 2 1-22). She stated that she and her husband were

“shocked” to find when they moved in that the Boughton quany existed directlybehind their

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property. They “wished we had done a little more homework before we bought this property.”

(Attachment 10, p. 23)

It’s hard to hide one quarry, let alone two. But assuming that Ms. Collins and her

husband really didn’t know they were buying property in close proximity to two quarries, her

real complaint should be with Complainant and her husband, who sold her the house without

telling her this. The Collins’ bought their home from Complainant’s husband, Steve Patterniann,

who had been building and selling homes in RiverRun since the early 1990’s and should have

been well acquainted with the quarry noises that Ms. Collins states detracted from the “natural

environment.” (See Attachment 7, p. 11-16.). Ms. Collins stated at her deposition that Steve

Pattermann never indicated to them that there was a quarry on the other side ofthe berm and also

never told them there were any kind ofnoise or dust issues on the property. (Attachment 10,

pp.12-13).

The fact that a person mistakenly and/or unreasonably assumes a property located next to

two quarries is a completely natural environment and buys the property on that basis does not

render the pre-existing regular process noises associated with those quarry operations

“unreasonable.”

ii.

Deposition of Donald Boudreau

Donald Boudreau bought his lot in River Run in 1999 and built his house between 1999

and 2000. His house is on the west side of Baybrook Lane and faces the Boughton property.

(Attach. 11, p. 20

-

21). On deposition, he admitted that he was aware that the two quarries were

located on 111th Street. He also admits that he visited the lot daily, daytime and evening, while

the house was under construction, and that he heard noises that he described as a “roaring noise”

and which he attributed to “the shaker or some type ofsorting device they have over there” while

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visiting the lot before he bought it. He also stated that he didn’t notice the noise “to be a big

problem then.” (j4~.p. 18(Attachment 11, pp. 11-1). He believes that the noise has become

louder recently and believes that might be attributed to changes in the terrain in the floodplain

that he believes resulted in fewer trees between the subdivision and the quarry. (Attachment 11,

pp. 23-24).

Mr. Boudreau described the noise he currently hears as “a steady roar, kind ofa rattling

consistent noise.” He believes that the noise is there constantly, but is louder some days than

others. Q4~p. 37). He can hear it outside in his yard and in his house on the east side facing the

quarry.

(~,

p.

45).

He thinks it would interfere with watching television if he had a T.V. on

that side ofthe house. He states that “It’s loud enough that I’m concerned it wakes my children

in the morning because their bedrooms are on that side of the house, and you can hear it clearly

in the mornings with the trucks and.. .the shaking.” (14~p.45). He also states that he can’t talk to

his neighbor across a 30 feet street without yelling because ofthe noise. (Id. p. 60). Although he

considers the noise to be “loud,” he has taken no measures to try to soundproofhis house. (~.

p.46).

Mr. Boudreau’s testimony, given its greatest weight, is that process noise that he knew

about before he bought his home and didn’t think was a “big problem” has gotten louder in the

last two years, possibly due to someone’s removal oftrees on property east of his house. He is

worried that it may wake his kids in the morning at 7:00 a.m. He also thinks that it is

“unwieldly” to have to yell across a 30 feet wide street to talk to a neighbor on the other side.

When repeatedly asked for any thing else that would be a part of his testimony as to how the

quarry noise impacts his life or property, Mr. Boudreau had nothing else to add. (~jjpp.

52-53,

57, 59,

60).

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The level of interference with the enjoyment oflife described by Boudreau cannot be

characterized as unseasonable. Few people would expect to be able to speak to a neighbor across

the Street without yelling. Few people would buy a house nextto two quarries and expect that

their operations would begin later than 7:00 am. Mr. Boudreau himself appears to realize this.

He stated,”.. .to be fair to these guys, I mean when we bought the house I was aware of the

quarry.” (Attachment 11, p.

50).

While he believes the noise has gotten louder since he bought

the house, he has no evidence that an increase in noise is attributable to Boughton.

In fact, apart from the reasonableness orunreasonableness ofthe level ofnoise,

Mr. Boudreau’s testimony makes it clear that the noise he describes cannot be coming from

Boughton operations. Mr. Boudreau can see a structure on the Boughton property which he

assumes to be the source ofthe noise he hears, although he admits he can’t see whetherthe

equipment in that structure is operating. (~p. 32). He claims to hear this noise everyday but

Sunday, in winter and summer, from as early as 7:00 am and as late as 8:00 pm all the way

through at least February 2003. (app. 32 -38).

Although Mr. Boudreau professed to be certain that the process noises he hears were

coming from that plant, he also admitted several times that he associated seeing the plant with

determining that it was the source ofthe noise, stating: “7:00 p.m. I would say later, however, I

cannot be precise, I can’t see where the noise is coming from when it gets dark.” (i4~p. 35) and

“Again,.., to be fair to Boughton, I would say that the only time that I have a complaint is when I

can actually physically see this unit operation and locate between my eyes and ears and walking

around that the noise is coming from there. So if I hear a noise at night and it’s dark, without

walking directly over there, you know, if I had to prove in a court oflaw where it was coming

from I couldn’t without walking directlyover there.” (j4.~p. 48). He also stated that the best

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place he has found to “focus on where the noise is coming from and why it is so loud” is south of

his house on Sebastian Street at a location where he can see the structure on the Boughton

property, but which is actually closer to the Vulcan quarry. (144 p.34).

Notably, in her deposition, Ms. Pattermann stated that she can distinguish the Vulcan

noise from the Boughton noise because “Vulcan sometimes runs all through the night...”

(Attach. 7, p. 77). She describes that noise as the noise ofa “conveyor belt.” (Id p. 77). While

she describes the noise as “real quiet noise in the background,” her home is located fbrther away

from and further north ofthe Vulcan quarry thanis Mr. Boudreau’s. (~p.78). She also stated

that the Vulcan noise increases when the wind is coming out ofthe south. (~p. 79)

Ms. Pattermann’s testimony on this point confirms that the noise Mr. Boudreau is hearing may

be noise generated by Vulcan. This is further supported by the testimony ofMr. Jene who in his

deposition on April 10, 2003 stated “I actually wanted to compliment Boughton over the last few

months because they haven’t been operating when I’ve come home from work.” (Attach. 8,

p. 35).

Other evidence also demonstrates that Mr. Boudreau has incorrectly assumed that the

noise he hears is generated by the piece of equipment he can see from his property. This piece of

equipment is the Boughton wash plant.7 As discussed in Mr. Kessen’s affidavit, the wash plant

is a plant that operates only a limited number ofdays each year, and only in the summermonths.

(Attach. 13, p.

15).

The wash plant physically cannot operate when temperatures are below

freezing because it uses large quantities ofwaterto wash gravel. (Id., p. 15). Thus, it could not

be the source ofthe noise which Mr. Boudreau described as the same noise he hears all year

round including in the month of February in 2003.

‘As stated in Dale Kessen ‘a affidavit, the berm cannot be extended behind the wash plant because of the proximity

ofexisting ponds and the river.(Attachinent 13, p. 36.)

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Furthennore, Mr. Kessen also states that Boughton’s hours ofoperation for

all process

equipment

are from 7:00 am all year round to 4:00 pm in the winter and 5:00 pm in the summer.

(Id. ‘pp. 13 and 20). Thus, neither the wash plant nor any other process operation on the

Boughton property could be the source ofthe noise that Mr. Boudreau hears from earlyin the

morning until late at night.

iii.

Deposition ofWilliam Jene

William Jene, like Donald Boudreau, lives on Baybrook Lane in the last section ofRiver

Run to be built and the only section that is not shielded from the Boughton quarry by the 50 foot

berm. His property is on the east side ofthe street and directly adjacent to the Boughton

property. (AttachmentS, p.14-15). He was aware ofthe location ofthe Boughton and Vulcan

quarries at the time he bought his property. (jj p. 19). Prior to buying his home, he visited his

lot several times and heard noises that he assumed to be from both the Boughton and Vulcan

quarries. (Id, pp. 12-13). He “knew about the noise factor” and had actuallytalked to the

Complainant about her complaint in this case before he purchased his property. (i~çpp. 22- 23).

He stated that the noises he heard before he bought his property were the same ones he is

hearing today

--

a conveyor, dumping and beeping. (14~p. 22). He stated that he used to hear

these noises as early as 6:00 am, but that recently it had been 7:00 am. (j4~p. 34). He did not

hear these noises in the evening when he returned from work. (Id. p. 34). He finds the conveyor

and trucks backing up to be “the biggest annoyances.” (~p. 35).

Mr. Jene offered no further comment on the impact ofthese noises on his life. He was

asked if there were any other matters that he would testify to if called at hearing, and he stated

that there were not. (Id., p. 45). His deposition indicates that he finds the process and beeper

noise to be an “annoyance.” But he admits that he knew fill well that he was building his house

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directly adjacent to one quarry and across the street from another. Since the noises he hears now

are the same noises he heard before he bought the property and this did not deter him from

buying the property, he cannot now claim these noises to be “unreasonable.”

iv.

Deposition of Carlene Jenkins

Carlene Jenkins bought Lisa Collins’ house in 1999. (Attachment 9, p. 8). It is next to

the Complainant’s house and backs up to the Boughton property. She states that she and her

husband became aware that the River Run subdivision was next to the Boughton quany when

she heard a blast while they were visiting the property before purchasing it. (j4~p. 10). They

also heard “what sounded like maybe a train or grinding, trucks” and asked the realtor what it

was and were told that it was the adjacent quarry. (j~p. 10). She stated that sheknew ofthe

location ofboth the Boughton and Vulcan quarries before she moved into her home. (j4~p.17).

Ms. Jenkins is aware that Boughton has constructed and is still enlarging the berm

between the quarry operations and the subdivision. She admits that the benn shields her property

from view ofany Boughton operations (Id. p. 23), but complains that the activity ofconstructing

and maintaining the berm requires trucks to go back and forth on the berm. She also States that

although the berm has gotten much higher since she moved in, it has not resulted in a reduction

in noise. She claims that the noise has actually “more intense” and “worse.” (j4~pp. 20-21). She

also indicates that she cannot differentiate what noise ordust is caused by Vulcan’s operations.

(j~pp.21, 26).

She stated that she hears trucks and beepers before 7:00 am ( e.g. 5:30- 6:00 am), but no

other operational sounds at that hour.

(~,

p. 30). She said she heard “grinding,” but she did not

indicate any specific impacts on her life associated with that noise. (jj p. 29). She has done no

monitoring, has no records and can point to no specific instances of noise problems. (j~p. 26)

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Her major concerns appeared to be with blast vibration, as discussed above, and with

dust. She fears her daughter maycontract asthma and allergies in the future, but did not indicate

any current medical conditions. (J4~~

p. 38). She stated that they don’t use theirbackyard

because it is “filthy,” but she could point to no specific occasions when significant amounts of

dust have come on to her property from the Boughton property. (j4~,p. 39)

Ms. Jenkins major noise complaint appears to be the sound of trucks that are constructing

and maintaining the berm that is designed to shield the River Run subdivision from the Boughton

operations. This hardly rises to the level of“unreasonable interference with the enjoyment of

life” for one who knowingly moved next door to a quarry.

v.

Deposition of Gina Fattermann

Gina Pattermann, the Complainant in this case, also built her home on property directly

abutting the Boughton property. She and her husband, Steve Pattermann, purchased their lot in

1995 or 1996. (Attach. 7, p. 5,9). Although Ms. Pattermann claimed she was unaware that

either the Boughton or Vulcan quarries existed at the time that she bought her property, (Attach.

7, pp.24-25), she admitted that her husband who is a professional homebuilder who had been

building and selling homes in River Run since the early 1990’s must have known ofBoughton’s

quarry because his excavation contractor dumped fill at Boughton’s facility. (Attach. 7, pp. 11-

24). She also admits that the operations at the Boughton plant have not changed or expanded

since she purchased her property and that the blasting and excavation activities at the Boughton

quarry have moved progressivelyfurther east, away from the RiverRun subdivision since then.

(a

p.53).

Ms. Pattermann stated in her deposition that she hears process noises from the Boughton

facility at approximately the same level all year round, varying only with the wind. (Id. p.

56

-

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57).

When the winds come straight out ofthe east, which she admitted they rarely do, she stated

it’s really loud. (14. p. 57). She can tell when a truck is dumping something (p.

56-59),

she can

hear back-up beepers (14. p. 74), a repetitive process sound all day long (~p. 56), and a

“woosh” sound which she associated with loading once in a while. (j4. p. 103). She admits that

she only hears trucks in the morning before 7:00 am, not operationalnoises. (14. p. 74). When

asked whether she could point to any specific instances in which she recalls being particularly

bothered by noise from the Boughton property, but stated “Not really. It’spretty consistent.”

Qj p.

58).

Her one comment was that Boughton’s choke feeding of the plant to reduce noise

doesn’t prevent the noise from the first load in morning from being loud, but she also admitted

that she doesn’t pay attention later in the day due to having five kids in the house making it

incredibly noisy in her house later on in the day. (j4,. p. 104).

As discussed above, she did use a Radio Shack hand-held sound meter to monitor sound

for approximately a week sometime in November of2002, but admits she usedno particular

procedure and that she did not correct for the “backgroundnoise” emitted by Vulcan. (Attach.7,

p. 77). She stated that she was “ambitious” for a week and made a log ofthese measurements

sometime in approximately November of2002, but she never provided that log as an up-date to

her discovery responses. (f4. p. 71-72)

She admits to the presence ofthe berm and the 25 acres ofundeveloped property between

the east side ofher property and Boughton’s operations, but claims that they have no impact on

reducing sound levels on her property. (j4. p. 31,

59).

Ms. Pattermann’s testimony does not support a finding that Boughton operations have

“unreasonably interfered with her enjoyment of life.” As she herself stated, she is generally

unaware ofthe noise during the day and notices it “once in a while” in the morning. She states

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that on a rare occasion the process noise from Boughton’s facility is really loud due to the wind.

But she admits the noise from the facility has not changed since she purchased her house.

Whether or not Ms. Pattermann herself knew ofthe existence ofthe Boughton and Vulcan

quarries, she admitted that her husband, who is in the building trade and continues to make his

living selling homes in RiverRun, was well aware that the Boughton quarry was located in close

proximity to their property. In fact, one ofhis contractors used the quarry.

Most telling, is the fact that Ms. Pattermann, the Complainant in this case, has been

extremely casual in documenting any noise incidents or measurements and in pursuing her

claims in this case. Although a lawyer and representing herself in this case until June 2003, she

didn’t bother to retain her purported expert witness, she didn’t attend her own witnesses’

depositions and she didn’t bother to review records offered by Boughton. These are not the

actions of someone who is experiencing an “unreasonable interference with the enjoyment of

life.”

c.

DUST

On the issue of dust, Lisa Collins stated, “I would say the dust issue was simply more ofa

cosmetic issue, you know, my furniture, the floor, you know, if you walked around with your

socks you would get dust.” (Attach. 10, pp. 30-31). She never had that type offine powdery

dust in her previous homes, and assumes it was from the quarry. But she admits that she never

saw plumes ofdust moving from the quarry toward her property. (a 29-30). She also said the

dust did not require her to seal her windows or pressure wash her house. (j4. p. 31). She also

stated there was no noticeable dust problem on the deck. (14. p. 32).

Donald Boudreau stated that they have to dust inside the house every two to three days or

they have a film of dust on the dining room table, that they have more dust in the house than he

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has experienced in his previous homes, and that his wife doesn’t allow windows to be left open

because ofdust. He said he gets dust on his shoes when walking in the yard. But he admitted

that he has never seen a plume ofdust from the Boughton facility moving toward his property

and that he cannot distinguish this dust from any other type ofdust. However, he admitted he

did not wash his windows orsiding particularly often and has not taken any other measures to

keep dust out ofhis house other than closing the windows. (Attach.11, p. 43-44).

William Jene said that dust is a problem in drier times, and that in the summertime you

couldn’t open windows for fear that you would have dust throughout the house. He indicated

that the blasting creates a big dust storm, but could not provide any particular dust problems he

experienced which were associated with blasting. He also admitted that he couldn’t distinguish

the source ofthe dust. (Attach. 8, p. 37 -41).

Carlene Jenkins stated that she worries that her daughter may contract asthma or allergies

down the road as a result ofinhaling dust. However, she did not indicate that any member ofher

family has any respiratory problems that she attributes to the dust. She also stated that they don’t

use their backyard because it is “filthy.” However, she could not point to any specific occasions

when significant amounts ofdust had come on to her property from the Boughton quarry. She

said there are no “big clouds ofdust that come over ourproperty,” but that she believes that

consistent grinding and blasting, presumably from Boughton’s facility, is causing the dust on her

property. (Attach. 9, pp.38-39).

Gina Pattermann stated that the dust from blasting was not a big problem for her. She was

more concerned about process dust. She stated that a week before her deposition she saw a cloud

ofdust dissipating out of the trees around the wash plant, although she assumed it was from the

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dry plant rather than the wet wash plant. She believes that dust is generated both by the plant

operations and by trucks driving around when the ground is dry. (Attach. 7, pp. 69-71).

The question for the Board is whether the amount of dust complained ofby these

witnesses rises to the level of “unreasonable interference with the enjoyment oflife.” While dust

may be present frequently, the level of dust complained of is, in fact, minor. The dust described

by these witnesses is not unlike the dust experienced by people throughout the Metropolitan

Chicago area, particularly in the City or in areas located in proximity to highways, construction

sites, and other industrial and agricultural activities. Furthermore, there is no indication that the

level ofdust experienced in River Run is unusual for property located in close proximity to two

quarries. As is discussed later, there is also no indication that Boughton generates excessive

amounts of dust in its operations. In fact, visible emissions testing of Boughton’ s operations

have shown particulate levels at the plant itself to be well below federal New Source

Performance Standards. (See Attach. 12, Ex. C). As also is discussed later, Boughton has

undertaken a number of measures to reduce dust at its facility.

The major step taken by these witnesses to address the dust problem appears to be

keeping theirwindows closed in the summer. They have not had to seal their windows or take

other extraordinary measures to reduce the dust within their homes. While keeping windows

shut all ofthe time may be less than desirable, all ofthese homes are valued in excess of

$400,000 and surely have air conditioning. It is not an unreasonable interference with the

enjoyment of life to have to keep windows closed against dust in light of the fact that each of

these people built homes in close proximity to two existing limestone quarries.

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d.

NO

ADVERSE

IMPACT ON PROPERTY VALUES

An increase or decrease in property values or the rate ofappreciation in property values is

an objective indicator ofwhether the emissions complained ofin this case have had an adverse

impact on property in the RiverRun area orthe perceived quality of life in the River Run area.

None ofthe witnesses offered by the Complainant had an information as to the increase or

decrease in theirproperty’s value or rate of appreciation. Moreover, the Complainant herself

admitted in her deposition that the quarry has not had an adverse effect on property values in

River Run. (Attach. 7, p. 113).

Complainant’s opinion is confirmed by a report entitled “Property Value Impact Study &

Highest & Best Use Analysis,” prepared by William A. McCann & Associates, Inc., which is

included herein as Exhibit B to the Affidavit ofMichael S. McCann, Respondent’s expert

witness. (Attach. 14, Ex. B hereto). Mr. McCann, the author of the study and an experienced

and certified real estate appraiser, would testify if called as a witness that it is his professional

opinion the Boughton 111th Street quarry has not had, and cannot reasonably be forecast to have,

any measurable adverse effect on property values in the River Run subdivision. (Attach. 14, p.

2). Mr. McCann’s opinion is based upon a comparative market analysis of property values, rates

ofappreciation and marketing times in the River Run and White Eagle subdivisions, both of

which are located in the Will County portion ofNaperville. Homes in the White Eagle

subdivision, which is over three miles from the Boughton 111th Street quarry, were chosen as a

“control group” ofproperties for comparison with properties located in River Run. The bases for

Mr. McCann’s selection ofthe White Eagle properties as comparable are stated in his affidavit.

While different in some respects, one having larger lots and the other having a private golf

course, the two subdivisions have houses ofapproximately the same size. Moreover,

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Complainant stated in her deposition that in her opinion River Run and White Eagle were the

two “really upscale” subdivisions in Naperville. (Attach. 7, p. 112).

Mr. McCann’s study found that the rate of appreciation ofproperties in River Run has not

only not been adversely impacted by the presence ofthe Boughton quarry, it has actually

outpaced the rate of appreciation in White Eagle. He reviewed sales in the two subdivisions

between 2001 and 2003. The average annual rate ofappreciation for homes in River Run was

8.25

for residences held in excess of 12 months. The average annual rate of appreciation for

homes in White Eagle was only 6.14 for properties held in excess of 12 months. Furthermore,

for the preceding year River Run homes sold on average for 98 of the list price, compared to

96 for White Eagle homes, and homes in the two subdivisions sold within almost exactly the

same marketing period. (See Attach. 14).

Mr. McCann was disclosed to Complainant as Respondent’s expert witness and the

complete McCann Study was provided to Complaint within the discovery period. Mr. McCann’s

expert testimony and the evidence in this report, coupled with Complainant’s own admission,

clearly demonstrate that property values in River Run have not been adversely affected by the

Boughton quarry. In addition, this information is objective evidence that the quality of life in the

River Run subdivision has not been adversely affected by the presence ofthe Boughton quarry.

2.

SECTION 33(c)(ii): THE SOCIAL AND

BOUGHTON QUARRY

Wayne Szepelak has been Boughton’s Office manager for almost 25 years. He is

intimately familiar with Boughton’s business and is prepared to testify as to the social and

economic benefit ofthat business to the surrounding community and the State ofIllinois. Mr.

Szepelak was identified as a witness on behalf ofRespondent within the discovery period and an

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affidavit reflecting the testimony that he would give if this matter goes to hearing is attached.

(Attach. 12).

As is stated in Mr. Szepelak’s affidavit, Boughton is a family owned and run company

which operates two limestone quarries in Will County, the Boughton

111th

Street quarry and the

Boughton

119th

Street quarry. As can be seen from the aerial photographs provided in

Attachment 16 hereto, the Boughton 11

1th

Street quarry is located north of 11

1tI~

Street, directly

across the 111th Street from another quarry owned and operated by Vulcan Materials. The

Boughton family has lived and worked in the Naperville-Plainfield area forover four

generations. Boughton Road, a major roadway in Naperville and Plainfield, is named after a

Boughton family member. (j4~Par. 5).

Ifcalled to testify, Mr. Szepelak would explain that Boughton produces construction

crushed limestone, sand and gravel used in highway and building projects in the western suburbs

ofChicago. Boughton’s products are used as driveway and garage fill; pipe and wall backfill;

pipe bedding; base material for foundations, parking lots and roadways; septic systems;

landscaping materials; pools; sandboxes; and masonry applications, among other uses. In 2002,

Boughton served over 600 Illinois governmental, business and residential customers located

within an approximate 30 mile radius of its 11 1°’Street quarry. ~ Par. 7).

Mr. Szepelak would also testify that Boughton’s products have been used in Illinois First

and other local construction projects, including: municipal building construction forthe Village

ofPlainfield, the City ofLockport, the City ofDowners Grove, the City ofWest Chicago and the

City of Wantnville; park construction in the Plainfield and Lockport Park Districts; school

construction in the Plainfleld, Naperville, Aurora and Lisle school districts; church construction

in Naperville, Aurora and Wheatland Township; road projects on 127th Street (Plainfleld) and

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135°’Street (Plainfleld); industrial projects for Reliant Energy (Aurora) and Commonwealth

Edison (Naperville); commercial projects for Farm & Fleet (Montgomery), Home Depot

(Naperville), Waigreens (Oswego) and CostCo (Naperville); and residential subdivisions such as

Tall Grass (Naperville), White Eagle (Aurora), Hickory Oaks (Bolingbrook) and Southpointe

(Plainfield). (Id., Par.8).

Mr. Szepelak affidavit points out that the supply ofaggregate in the immediate areaof

Boughton’s 111th Street quarry has decreased over the years and a greater decrease is expected in

the future. Of the four quarries in the surrounding area, one (Prairie Materials quarry) has all but

closed, and another

(the

adjacent Vulcan Materials quarry) is likely to run out of surface material

in the near future. Therefore, the continuing operation ofthe Boughton quarry is very important

to serve the construction industry in the area. (Id., Par. 9).

Boughton is also a significant local employer. Mr. Szepelak States that Boughton employs

33 individuals on a full-time basis and 2 individuals on a part-time contract basis. The Company

also utilizes the services ofapproximately 20 contractdrivers who drive exclusively for

Boughton and 15 contract drivers who drive primarily (but not exclusively) for Boughton. All of

Boughton’s employees live in Illinois within close proximity to Boughton’s business. In 2002,

Boughton paid $5,451,000 in payroll expenses. Although sales decrease in winter, we do not

have a slowdown in production, nor do we lay offany employees. (Id., Par. 10).

Boughton also contributes significantly to the tax base. Mr. Szepelak states that on

average, Boughton pays $1 million in federal income taxes and $200,000 in state income taxes.

In 2003, Boughton will also pay $514,476 in state and local sales taxes and over $70,000 in

property tax. (jj, Par. 11).

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Beyond employment and taxes, Boughton’s business also contributes substantially to the

local economy by using local businesses and vendors to conduct its quarrying operation.

Mr. Szepelak states that in 2002, Boughton paid $3,073,000 in cartage expenses to several

locally owned and operated truckingcompanies. Boughton also conducted $1,488,000 of

business in 2002 with Callahan & Schue (drilling) ofLockport, Illinois, and Evenson Explosives

of Morris, Illinois. Several local companies provide plant, truck and equipment maintenance, as

well as operating supplies, including Patten/Caterpillar ofElmhurst, Illinois; KAB. Products of

Palatine, Illinois; Crescent Electric of Joliet, Illinois; Motion Industries of Chicago; and Mack of

Joliet, Illinois. Boughton’s business with these local companies totaled $804,000 in 2002. (j4~,

Par. 12).

Finally, Boughton is also a benefactor of a numberof charities and local institutions. As

stated in Mr. Szepelak’s affidavit, Boughton’s donations have increased annually from $22,000

in 2001 to $34,000 forthe first 9 months of2003. This includes major donations to the Don

Zarndt Fund, the Les Turner ALS Foundation, the Naperville and Plainfield Schools and Little

Friends. In addition, Boughton formed the Walter Boughton ALS Fund in 1993. The charity

contributes $40,000 to $70,000 each year for ALS (Lou Gehrig’s Disease) research and family

care for individuals afflicted with the disease. In ten years, the fund has raised over $540,000 for

this cause. (Id., Par. 13).

Based on all ofthe above and the absence ofany evidence from Complainant that goes to

this point, the Board should enter Sunitniary Judgment in favor of Respondent as to the Section

33(à) factor for social and economic benefit ofthe emission source.

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3.

SECTION 33(c)(iii): THE SUITABILITY OF THE BOUGHTON QUARRY

TO ITS

AREA AND

ITS PRIORITY OF LOCATION

Mr. Szepelak’s

affidavit

also attests

to facts which demonstrate the suitability ofthe

Boughton quarry to its area and its priority of location. (See Attach. 12, Pars. 14 —17).

The location ofa limestone quarry is dictated by geology. Unlike many areas of the

country, northern Illinois and Will County, in particular, are rich in accessible natural limestone

deposits. As a result, there are four limestone quarries within Wheatland Township. (jj, Par.

14).

Like Boughton’s 111th Street quarry, all four ofthese quarries were developed on mineral

rich land in an area ofWill County that was zoned and used primarily for agriculture and mining

until the 1990’s. Mr. Szepelak can attest to having lived and worked in this area since 1978, and

can personally attest to the fact that in 1985, when Boughton began quarrying operations at its

111th Street location, its quarry was surrounded by open farmland to the north, west and south

and another quany and more farmland to the south. He can further attest to having reviewed the

series ofaerial photographs from 1980 to 2001 obtained by McCann & Associates for their April

3, 2003 Report (and also attached hereto as Attachment

16)

and his belief that those photographs

accurately depict the movement of residential development into this quarrying and agricultural

area as he himself saw and experienced it. (j~,Par.

15).

Mr. Szepelak can also attest to his personal observation that Wheatland Township still

contains several thousand acres in agricultural and mining use. The 111th Street quarry is

bounded by quarrying operations to the south. A golf course borders the quarry on the east with

agricultural land further to the east. To the west and north, the River Run subdivision was

constructed right up to the boundary ofthe existing Boughton’s property from approximately

1990 to 2001. However, the quarry is still separated from the subdivision by the DuPage River

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and approximately

25

acres ofland owned by Boughton and used solely as a buffer, including

woods and a 50 feet tall earthen berm constructed by Boughton. ~ Par. 16).

Unlike many other businesses, quarries cannot simply pick up their equipment and move

somewhere else. Mr. Szepelak’s affidavit explains that a quarry’s location is dictated by geology

and that a quarry also takes many years to develop. Limestone is not typically found near the

surface, and considerable cost and intensive labor is required to remove overburden, which can

range from a few feet to over thirty feet in depth. As a result, a quarry operation may not realize

a profit for several years. In addition, given labor, heavy equipment and land acquisition costs,

the start up expenses ofa quarry operation are very high. (I4~,Par. 17).

Based on all ofthe above, it is clear that the Boughton quarry is

a business that is well-

suited to its location. In fact, when Boughton’s special use zoning application was initially

rejected by Will County Zoning Board, the Illinois Circuit Court over-turned that decision,

finding:

“Because ofthe deposits ofsand, gravel and limestone on the

subject land and the shallow overburden covering the deposits, the

highest and best use ofthe subject land is mining and quarrying

with blasting and the operation thereon ofthe usual quarry

equipment, crushers, conveyors, office and scale.” Boughton

Trucking and Materials, Inc. v. The County ofWill,

No. 80 CH 253 (Judgment Order, Mar. 8, 1982) (Attachment 15

hereto).

The Illinois Appellate Court agreed with Illinois Circuit Court and the evidence

demonstrating

that

Boughton’s quarrying operations represent the “highest and best use” ofthe

land given the socially valuable limestone deposits located on that property. Boughton Trucking

and Materials, Inc. v. County ofWill, 112 Ill. App. 3d 26, 444 N.E.2d 1128 (3th Dist. 1983).

Section 33(c) also calls for a consideration ofthe priority of location in determining the

suitability of an emission source to its location. In this case, it is clear that the Boughton 111th

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Street quarry preceded the River Run subdivision by at least 9 years. The quarry was developed

in 1985. The subdivision came into existence in phases between 1994 and 2001. The character

of the land uses in the area and the movement of the residential development right up to the edge

ofthe Boughton property is graphically depicted in the aerial photographs which were obtained

by Mr. McCann in the course ofhis study and which were used as exhibits in the depositions of

Complainants witnesses. The fact that the quarry operations have not changed can also be

discerned from these photographs which show the same quarry plant equipment in the same

locations. (A copy of those aerial photographs are attached hereto as Attachment 16.) The only

thing about the quarry that has changed is that the blast face has moved further to the east, away

from the subdivision. Thus, unlike in Charter Hall, the character and intensity ofthe Boughton’s

operations have not increased.

The aerial photographs are dramatic evidence of the classic “moving to the nuisance”

syndrome which is the true basis of the Complaint in this case. The home owners in this case all

knew or should have known that they were buying property in close proximity to not one but two

existing limestone quarries and in an area dominated by four limestone quarries. The complaints

they raise do not indicate that Boughton has changed its operations, exceeded regulatory

emission levels or operated its quarry in any way that is not common in the industry. In fact, Mr.

Szepelak’s affidavit and exhibits thereto demonstrate that the quarry’s operations have not

changed since 1987, that it is properly permitted by the Illinois Environmental Protection

Agency, and that it is in compliance with that permit, emitting far less than the allowable

particulate emission limits allowed for non-metallic quarries. (See Attach. 12, Exs. B and C).

Rather, their complaint is with levels ofnoise and dust that are inherent in the nature ofa

quanying operation.

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Given all ofthe above, Boughton is entitled to summaryjudgment in its favor as to the

Section 33(c) (iii) factor pertaining to the suitability and priority oflocation of its 111th Street

quarry.

4.

SECTION 33(c)(iv) and (v): NOISE

AND DUST REDUCTION

MEASURES UNDERTAKEN AND THE TECHNICAL

IMPRACTICABILITY

AND ECONOMIC UNREASONABLENESS OF

FURTHER REDUCING NOISE AND DUST FROM THE BOUGHTON

QUARRY

Complainant has presented no evidence that additional reductions

in noise and dust can

be made at the

111th

Street quarry. On the other hand, Boughton has provided evidence of an on-

going program investigating and implementing noise reduction measures in every aspect ofits

operations, including blasting, drilling, crushing, conveying, and hauling. Some measures that

have been investigated have been found to be unworkable, but a wide-range ofother procedural,

operational and equipment changes have been made to Boughton’s operations specifically to

reduce noise and dust emissions.

Dale Kessen is the Superintendent ofthe Boughton

111th

Street quarry. His job

responsibilities include essentially running every aspect ofthe plant and quarry operations,

including oversight ofall blasting perfonned by the blast and drilling contractors, oversight ofall

process operations in the main plant and the wash plant, oversight ofall truck and vehicle

movement and loading within the plant and quarry, and the evaluation, installation,

implementation and operation of all pollution control equipment and measures. He has

personally been responsible for investigating, implementing and evaluating noise and dust

reduction measures at the ~ l~Street quarry for many years. Mr. Kessen was identified to

Complainant as one ofRespondent’s witnesses within the discovery period and is prepared to

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testify if this matter goes to hearing. The substance ofhis testimony is contained in an affidavit

attached hereto. (Attach. 13).

a.

Blast Noise and Dust Mitigation

Mr. Kessen

‘

s affidavit attests to the fact that Boughton has been actively involved with

its blast contractors in investigating blasting techniques designed to reduce dust and noise,

including cutting back the size ofthe shot, culling back the number of shot holes used, removing

drilling debris from the shot area, wetting the rock to be blasted and wetting the shot hole, and

limiting blasting based on wind direction. He states that Boughton has also changed blasting

contractors a number oftimes when we have found they were not flexible in trying new methods

to reduce noise and dust impacts. (Attach. 13, Par. 4).

He states that as a result of this investigation, Boughton has discovered and implemented

several blasting methods that reduce noise and ground vibration. He states that Boughton now

uses less shot and drills fewer holes than in the past for “high wall” blasts. For certain areas,

Boughton has used a “benching” technique for blasting. Under this “benching” approach, they

use smaller shots and blast 50 feet ofthe quarry wall at a time instead of 100 feet. (I4~,par. 5)

Mr. Kessen oversees Boughton’s blast contractor and reviews the blast reports created

following each blasting event. He states that those blast records indicate that the average ground

vibration and air blast pressure (in decibels) generated by Boughton’s blasting has been

considerably reduced since 1999 as a result ofthe new blast techniques that have been

implemented. His affidavit includes an exhibit summarizing the results ofover 4 years ofblast

records which demonstrate a reduction in air blast levels by over 6 decibels. (j~,Pars. 6 and 7).

As noise is measured in decibels on a logarithmic scale a decrease of a single decibel actually

represents a logarithmic reduction in sound. To calculate when noise is reduced in half or

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doubled, various agencies use different “exchange rates,” from 3 to

5.

Using the Mine Safety

and Health Administration’s conservative exchange rate of

5,

Boughton’ s 6 dB reduction in air

blast translates into reduction in audible noise by more than half. (See 30 CFR 62.10 1, a copy of

which is attached. Attach. 17 hereto.). This is a substantial achievement in noise reduction.

Mr. Kessen also states that Boughton’s investigation indicated that neither removing the

drilling debris from the blast area nor wetting the rock or the shot hole prior to blasting

noticeably reduced the dust generated during the blast. However, dust movement above the

quarry wall is reduced by “benching.” (~.

Par. 8).

As another effort to reduce the possibility ofdust impacts in the neighboring residential

areas, Mr. Kessen states that Boughton has instituted a policy limiting blasting to days when the

wind is not blowing toward the west or northwest. The only exception to this is when the wind

changes after the shot has been set. He explains that once the explosives have been set in the

shot holes, it cannot be removed and must be blasted in order to prevent a hazard. (jj, par. 9).

b.

Drilling: Dust and Noise Mitigation

Mr. Kessen explains that the blast shot is set in holes which must be drilled into the

quarry wall. Boughton hires a drilling contractor to drill these holes. Boughton has instituted a

policy ofnot allowing drilling to commencebefore 7:00 a.m. To Mr. Kessen’s knowledge, there

has only been one instance in which drilling has commenced before 7:00 a.m. since 1999, and

that was due to a misunderstanding with the drilling contractor. (I4~,par. 10).

He has also instructed the driller as a general matter not to drill when the wind is from the

east or southeast to reduce noise traveling towards the subdivision and has also confirmed that

the driller is using a drill equipped with a downhole hammer which substantially deadens the

drilling noise. (jd., par. 11).

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He has also confirmed that Boughton’s drilling contractor is using dust covers and

collectors while drilling. Having observed the operation ofthe drill, Mr. Kessen can attest that

the dust collector, which utilizes a vacuum and bag collection system, collects almost all ofthe

ambient dust created by the drilling process. (jj, par. 12).

c.

Noise Mitigation Measures: Processes and Vehicles

i.

Reduced Hours of Operation

Mi. Kessen attests to the following facts regardingBoughton’s operating times: that to

reduce noise in the early hours, Boughton has instituted a 7:00 a.m. start time for all plant

operations, including the operation of all Boughton quarry trucks; that all trucks and machinery

that strip and excavate overburden do not begin operating until 7 a.m. or later; that the wash

plant, which is the piece of equipment closest to the River Run subdivision, is never operated

before 7:00 a.m. and rarely operated before 8:00 a.m. and that because the wash plant requires

the use ofwater it is only operated between April and November, weatherpermitting; that

blasting and drilling does not begin until at least 7a.m. and blasts rarely occur before 10:00 a.m.

or after 4:00 p.m.; that since December 2000, in the winter months (generally December through

March), customer loading does not begin until 7:00 a.m.; that in the sunirner months (generally

April through November), the 111th Street quarry opens at 6:30 a.m. only for customer truck

loading; and that no other plant operations begin at this earlier time. (Attach. 13, pars. 13-18).

He further states that the 7:00 aim start time is a later start time than that ofother

competing quarries in the area, including the Vulcan quarry located directly across

111th

Street

and that he haspersonally seen customers leaving the Vulcan

111th

Street quarry with (lilly

loaded trucks as early as 6:00 a.m. and has also heard Vulcan’s crushers operating as early as

6:00 am. (fl, par.19).

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Mr. Kessen also states that the Boughton 11

1th

Street quarry ceases operations at

4:00 p.m. in the winter and 5:00 p.m. in the summer and closes its gates to customers at

3:30 p.m. in both the winter and summer. Boughton operates on Saturdays only between 7:00

a.m. and 12:00 p.m. The quarry is closed on Sundays. (j4., Pars. 20-21).

ii.

Berm and Buffer

Boughton has constructed an earthen berm to the north and northwest to screen quarry

and plant operations from most of the River Run subdivision. Mr. Kessen states that he has been

personally responsible for constructing the berm for many years. In his estimation the berm is

currently over fifty feet in height. It also sits on a 15 to 20 foot hillside. Thus it actually stands

65 to 70 feet above the DuPage River. Mr. Kessen attests to standing on the top ofthe berm

many times and he judges that it is at least as high as the rooftops ofthe houses in the River Run

subdivision. (Attach. 13, par. 22).

He states that the only operation not shielded by the berm is the wash plant. The berm

cannotbe extended west ofthe wash plant because the wash plant ponds are located immediately

to the west all around the plant. The DuPage River is located immediately west ofthe wash

plant ponds. ~ par. 23).

He also states that the wash plant is separated from the River Run subdivision by

property owned by Boughton and the DuPage River. He estimates the closest house in the River

Run subdivision is approximately 1000 feet from the wash plant. (jj,

par. 24).

iii.

Pollution Controls on Process Equipment

—

Main Plant

Boughton has both changed its operations and retrofitted its equipment with noise

controls to reduce process noise from its main plant. Mr. Kessen’s affidavit describes a number

ofthese measures.

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He describes the implementation ofa choke feeding procedure designed to reduce noise

by having rock continuously present in the bins so that loaded rock falls on rock rather than

metal. (Attach. 13, par.

25).

He also describes the installation of“sound blankets” and “sound barriers” at the top and

feed and discharge openings at the two main process screens. These dampen the sound and

deflect it away from the River run subdivision. He can attest to the fact that these measures have

greatly reduced the level ofnoise from the primary and secondary screens in the main plant and

also reduce dust by intercepting and knocking down airborne particulate. (j~,pars. 26-28).

He describes Boughton’s investigation ofvarious liners for the discharge chute. A rubber

liner installed in 2001 did not wear well and also created a safety hazard because it caused rocks

to bounce out of the chute. The rubber liner was subsequently replaced by four ceramic liners in

July of2003. These liners, though more expensive, have not caused rock to bounce out ofthe

chute and appear to be more effective in reducing noise. Mr. Kessen believes that the liners have

greatly reduced the level ofnoise from this chute, estimating that the noise from the main

discharge chute has been reduced approximately 75 to 80.

Based on this success, he states that

Boughton purchased more ceramic liners which are anticipated to be installed under the jaw

crusher by the end of2003. (j~,pars. 29-31).

Mr. Kessen’s affidavit describes the July, 2002 installation ofrubber screens on the top

deck ofthe primary screen. He believes these new screens have greatly reduced the noise from

the primary screen. (jj, par. 32).

Mr. Kessen’s affidavit also states that Boughton has considered several options to reduce

noise from the primary hopper, but has not found a safe method for doing so. Because the quarry

truck drivers require a clear line of site visibility to the surge bin as one indication of when to

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dump their load into the hopper, Boughton determined that it cannot construct a bather or

otherwise enclose the hopper. He states that enclosing the hopper would also lead to overfeeding

ofthe hopper, which would cause an overflow in the surge bin and result in flying rock. (Ii.

par. 33).

iv.

Pollution Controls

on

Process Equipment

--

Wash Plant

Mr. Kessen states that Boughton minimizes the operation ofthe wash plant. It is never

operated in the winter because it cannot operate at temperatures below freezing. It is also only

operated on an “as needed” basis in the warmer months.

In 2002, the plant operated for only 67

days between April and November. In 2003, it operated for only

56

days between April and

October 13th. When the plant is in use, it is rarely started before 8 a.m., and never before 7 a.m.

(jj, par. 34).

Mr. Kessen describes constructing a wall around the west side ofthe wash plant

Screens

to deflect any noise away from the River Run subdivision.

He states that Boughton found that

the wall was a safety hazard. The structure limited safe access for employees and continuously

needed repairs and maintenance, requiring employees to enter unsafe areas. He removed the

wall within a year afterits installation based upon the comments of

a MSHA

Inspector who

indicated that it was not safe. (Id., par.

35).

He further stated that it is not possible to build a free standing sound barrier structure

on

the west side of the wash plant because ofthe proximity ofthe wash ponds and then the DuPage

River immediately to the west of the ponds. (Id~,par. 36).

He explains that because Boughton cannot build a berm or other free standing sound wall

on the west side ofthe wash plant, it has instead investigated the sources ofnoise generated at

the wash plant and focused on reducing noise at the equipment level. (J4~,par.37). Steps that

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that have been taken at the wash plant include replacement of the wash plant’s four metal

screens with four polyurethane screens. These screens have been designed specifically for wet

applications, e.g. wash plants. The movement ofgravel on polyurethane creates less noise than

does the movement of gravel on metal. He estimates that these polyurethane screens reduced the

noise from these screens by approximately 40.

(4, pars. 37-38).

He has also wrapped the discharge chute from the wash plant screen in a rubber blanket

to reduce noise and installed rubber sound bathers in front ofthe feed and discharge openings on

the Pioneer screen. Bolt-in covers already serve as sound barriers on the Deister screens.

pars. 39-40).

v.

Vehicle Back Up Beepers/Alarms

Mr. Kessen describes a pilot program to test the safety and effectiveness ofradar

proximity sensing back up alarms on Boughton’s trucks. These alarms greatly reduce the

numberoftimes the back-up beeper sounds because rather than going offevery time the vehicle

backs up, the beeper only sounds when the radar detects an obstacle behind the vehicle.

Boughton has now determined that the radar equipment is safe and effective and has installed

radar back up alarms on all four ofits quarry trucks. (I4~..par. 41).

According to Mr. Kessen, Bougbton has also investigated installing radar activated

alarms on its loaders. Boughton mechanics originally told the Company that there were electrical

grounding problems that would prevent the use ofthe radar alarms on the loaders. However,

they have recentlyresolved that problem through discussions with the manufacturers and plan to

install radar activated alarms on Boughton’s two loaders in early 2004. (J~,42).

Mr. Kessen notes that any changes to existing audible alarms must comply with the Mine

Safety and Health Administration (MSHA) regulations and provide the same level of safety,

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protection and warning for the miners. Although the Mine Safety & Health Control Manual

regulations provide the option to use signal persons instead ofalanns, Boughton does not

consider the use ofsignal persons to be a viable option in the loading areas at the Boughton

plant. At times Boughton has as many as 24 separate loading points. It would have to have a

separate signal person assigned to each one ofthese loading points because it cannot allow

workers to walk around in close proximity to heavy trucks and mobile equipment hauling,

loading and dumping loose rock and in proximity to rock screens, bins and crushers. Mr. Kessen

states his personal belief that having people on foot in the loading areas creates an unacceptable

safety hazard. He also points out that MSHA recommends against any kind offoot traffic in

haulage areas due to the high risk ofan accident and even a fatality. He points to a “MSHA

Hazard Alert” which states that mine operators should “Prohibit foot traffic in haulage areas” and

to MSHA Fatality Information bulletins which report on fatal accidents resulting from having

workers on-foot inside mining plants. (j~,par.43).

Mr. Kessen states that Boughton cannot control the type ofback-up alarms used on its

customer’s trucks. However, it has created routing to allow its customers to load without

backing up. Customer trucks are routed to drive forward in a loop up to and out of the stockpiles

rather than backing up to the piles. This greatly reduces the triggering ofthe backup alarms and

also increases safety. Q~,

vi.

Dust Miti2ation Measures: Processes and Vehicles

Mr. Kessen points out that the earthen berm

to the north and northwest which completely

screens plant operations from most, if not all, ofthe RiverRun subdivision also prevents process

dust from migrating to the subdivision. It is currently over fifty feet in height, which is as least

as high as the rooftops ofhouses in the River Run subdivision. He states that he can personally

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attest that he has never observed dust generated at the ground level on the east side ofthe berm

rise to a level high enough to cross over the top ofthe berm. (Attach. 13, par. 45).

He notes that the 25 acres ofBoughton’s undeveloped land west ofthe berm, on both

sides of the DuPage River, also creates a buffer areabetween Boughton’s plant and quarry

operations and the River Run subdivision of a distance of greater than 1000 feet at the closest

point.

(~,

par. 46).

He attests that the wash plant, which is not entirely screened by the berm, does not

generate any significant amount ofdust because it is an extremelywet operation.

(~,

par. 47).

He also states that Boughton utilizes water sprays at specific points in the main plant to

minimize dust. Boughton’s permit and Board regulations require that material processed have a

1.5

moisture content. Although the rock Boughton mines has a naturally high moisture

content, plant personnel check the moisture content ofthe aggregate on a regular basis and also

use water sprays as an additional measure to minimize dust.

(~,

par. 48).

Mr. Kessen notes that trucks entering and exiting mining sites can carry dust onto the

roadways. For this reason, Boughton has installed a wheel wash which washes the tires ofall

trucks exiting the

111th

Street quarry. Boughton also maintains its own water truck and wets

quarry roadways and haul areas up to 4 to

5

times each day, as necessary. (hi., par. 49).

He states that Boughton dispatchers check vehicles before they leave the quarry to ensure

that tailgates are clean and tarps are used to prevent spillage on roadways. (Id., par. 50).

He adds that Boughton has instructed employees and contractors to minimize speed,

sharp turns and rapid accelerations while on Boughton property to reduce dust. In addition,

Boughton has posted 10mph speed limit signs on roadways throughout the quarry. (Id., par.

51).

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Mr. Kessen’s affidavit demonstrates that if this matter were to go to hearing he would

testify as to an extensive program of noise and dust reduction investigation and implementation

which has substantially reduced noise and dust from Boughton’s facility well beyond regulatory

requirements. The measures which have not been implemented are technically impractical based

on the nature ofthe materials being handled, the mining environment, and the safety issues

posed. The many measures which have been implemented have reduced noise and dust

substantially.

In contrast, Complainant has presented no evidence whatsoever as to any other noise or

dust reduction measures. Thus, there are

no facts in dispute on this point

and summary judgment

should be granted in favor ofRespondent as to the factors in Section 33(c)(iv) and (v).

CONCLUSION

This is a case that is entirely appropriate and ripe for dismissal on the basis of summary

judgment at this time. Complainant simply has no evidence warranting a finding ofviolation of

the Act or regulations and no legitimate purpose will be served by requiring a hearing in this

matter.

As is discussed above, Complainant has presented no evidence whatsoever ofa permit

violation under Section 9(b) ofthe Act or a regulatory violation of any numeric emission

limitation under Section 901.102 or 901.104 ofthe Regulations.

On the remaining “nuisance” type allegations (Section 9(a) and Section 24 ofthe Act and

Section 900.102 ofthe Regulations), Complainant has failed to present evidence that Boughton’s

emissions are unreasonable or that its facility has caused an “unreasonable interference with the

enjoyment of life” in the RiverRun subdivision. The Board’s well-established case law on noise

nuisance claims makes it clear that the analysis of whetheremissions are unreasonable involves a

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weighing ofall ofthe Section 33(c) factors. In this case, the evidence demonstrates that the

Respondent is entitled to judgment on every factor.

On Section 33(c)(i), the character and degree ofthe interference, the evidence ofnoise

and dust impacts that Complainant has been able to muster over the four years in which this case

has been pending is weak. The noise and dust is characterized variously by her own witnesses as

“annoying,” as a “cosmetic issue,” as unnoticed except when focused on, as “not a huge

problem,” and as something that her own witnesses realize they should have anticipated when

moving next doorto two existing quarries. The witness testimony is inconsistent and subjective.

What some witnesses thought to be a problem, others did not. Furthermore, several witnesses

admitted to being unable to even determine whether the Boughton facility was the source ofthe

noise and dust complained of. Based on this testimony, the minor noise and dust impacts that

Complainant’s witnesses have attested do not “substantially and frequently interfere with the

enjoyment

of life, beyond minor or trifling

annoyance or discomfort.” Charter Hallv. Overland,

PCB 98-91, slip 0p. at 18, (Oct. 1, 1998), Kvatsak v. St. Michael’s Lutheran Church, PCB 89-

182,Slip Op. at 9 (Aug. 30, 1990).

In fact, the objective evidence confirms that the quality of life in River Run has not been

diminished by any emissions from quarrying operations. Property values in River Run are

among the highest in the area and are appreciating at a rate that is higher than other premier

Naperville properties that are not located adjacent to quarries.

Complainant offered no witnesses or other evidence on the remaining Section 33(c)

factors that go to the reasonableness ofthe emissions complained of. Respondent, on the other

hand, provided substantial evidence.

45

THIS DOCUMENT IS FILED ON RECYCLED PAPER

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On Section 33(c)(ii), the social

and economic value ofthe Boughton quarrying business,

Boughton’s witnesses’ affidavits demonstrate that the Boughton quarrying operations provide an

essential service to the local community and contribute significantly to the local economy,

employing 70 regular and contract employees and doing millions ofdollars ofbusiness with

local suppliers everyyear.

On Section 33(c)(iii), the suitability oflocation, this is an extremely clear case. The

Illinois Appellate Court has ruled that Boughton’s quarrying activity is the “highest and best use”

ofits property based on the rich and accessible limestone deposits found there and the social

value of these natural resources to

the

community. Moreover, Boughton’s operations were pre-

existing when the River Run subdivision was developed. When constructed, the quarry

was

located in an entirely agricultural and mining area. In the 1990’s residential development moved

progressively into the agricultural and mining area, but Wheatland Township continues to have

four quarries

and

several thousand acres in mining and agricultural use. The residents ofRiver

Run chose to build their homes right up to the property boundary ofone an existing quarry and

right across the street from another.

On Section 333(c)(iv) and(v), the technical practicability and economic reasonableness of

taking additional noise and dust reduction measures and the measures taken to reduce emissions,

again Complainant offered no evidence. Boughton, on the other hand, provided evidence ofboth

an extensive program ofeffective noise and dust reduction measures and evidence that additional

measures have been investigated and found to be unworkable, primarily for safety reasons.

Based on all ofthe above, Respondent is entitled to ruling on summary judgment in its

favor on the alleged violations ofSections 9(a) and 24 ofthe Act and Section 900.102 ofthe

Regulations (the “nuisance” claims) as well as the alleged permit and regulatory violations.

46

THIS DOCUMENT IS FILED ON RECYCLED PAPER

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WHEREFORE, Respondent moves the Board to enter Summary Judgment in its favor

and against Complainant on each and every violation alleged in the Complaint and to dismiss

this matter in its entirety.

Respectfiully submitted,

Bou~~aterils,

Inc.

By One of Its Attorneys

Patricia

F. Sharkey

Mark R.

Ter Molen

Kevin Desharnais

Mayer, Brown, Rowe & Maw

190 South LaSalle Street

Chicago, Illinois 60603-3441

(312) 782-0600

47

THIS DOCUMENT IS FILED ON RECYCLED PAPER

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STATE OF ILLINOIS

)

)

SS

COUNTY OF COOK

)

AFFIDAVIT OF ATTORNEY

The undersigned, Patricia F. Sharkey, being first duly sworn upon oath states that she is

one of the attorneys for the Respondents in this action, Gina Pattermann v. Boughton Trucking

and Materials, Inc., PCB 99-187, and that based upon her personal knowledge and investigation

ofthe facts stated in the attached Motion for Summary Judgment, certifies to her knowledge and

belief that the allegations contained iii this Motion for Summary Judgment are true in substance

and in fact.

STATE OF ILLINOIS

)

) SS.

COUNTY OF COOK

)

Signed and sworn to by Patricia F. Sharkey, who is personally known to me and appeared

before me, a Notary Public, in and for the County of Cook, State of Illinois, on this 10th day of

November, 2003, in order to affix her signature as her free and voluntary act.

1)u~!T1£Jkef~A

Notary Public

Patricia F. Sharkey

Attorney for Respondents

“OFFICIAL ~

A

Mayer, Brown, Rowe & Maw

Donna M.

190 South LaSalle Street

Chicago, illinois 60603

)‘

ommIs5j~Exp. O3/25~~j~

312-782-0600

CHDBOI 1201639.1 111003 1332C 99556862

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ATTACHMENTS TO MOTION FOR SUMMARY JUDGMENT

Attachment

No.

Title

Boughton Trucking & Materials, Inc. First Set of

Interrogatories to Complainant Gina Pattermann

2

Complainant’s Answer to Boughton First Set of

Interrogatories

3

Boughton Trucking & Materials, Inc. First Set of

Document Requests to Complainant Gina Pattennann

4

Complainant’s Responses to Respondent’s Document

Requests

5

Boughton Trucking & Materials, Inc. Answers to

Complainant Gina Pattermann’s First Set ofInterrogatories

6

Boughton Trucking & Materials, Inc. Response to

Complainant Gina Pattermann’s First Request for

Production ofDocuments

7

Gina Pattermann Deposition Transcript

8

William Jene Deposition Transcript

9

Carlene Jenkins Deposition Transcript

10

Lisa Collins Deposition Transcript

11

Donald Boudreau Deposition Transcript

12

Affidavit ofWayne Szepelak

13

Affidavit ofDale Kessen

14

Affidavit ofMichael McCann

15

Boughton Trucking v. County of Will,

No. 80 CH 253,

Judgment Order

16

Aerial photographs

17

Title 30, Code ofFederal Regulations, 30 CFR 62.101

18

Meredith v. Principi,

2001 WI, 856283 (N.D. Ill.)

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please contact the Clerk’s Office

312/814—3629