ILLINOIS POLLUTION CONTROL BOARD

APPLICABLE LAWS Noise Laws

May 15, 2003

MARTIN E. and KATHY L. GEBER,

Complainants,

CLAYTON MOUSHON and CARRI

SCHARF TRUCKING AND MATERIALS,

Respondents.

)

PCB 03-96

(Citizens Enforcement - Noise)

ORDER OF THE BOARD (by D.C. Karpiel):

This is a citizen enforcement action alleging that noise from a gravel mining operation in

East Peoria, Tazewell County, violates the Environmental Protection Act (Act) (415 ILCS 5/24

(2002)) and Board rules (35 Ill. Adm. Code 900.102, 901.104). Complainants, Martin E. and

Kathy L Geber (Gebers), reside near the gravel mine and are representing themselves. They

allege respondents violated both the nuisance noise prohibition and the numeric limits on

impulsive sound. Today the Board rules on three motions: two motions to dismiss; and one

motion for leave to file an amended complaint to add respondents.

For the reasons below, the Board grants the motion of respondent Clayton Moushon

(Moushon), dismissing him from this case, but denies the motion to dismiss of respondent Carri

Scharf Trucking and Materials (Scharf Trucking). The Board also grants in part and denies in

part the Gebers’ motion for leave to file an amended complaint. Specifically, the Board allows

the Gebers to file an amended complaint to add Carri Scharf Materials Company (CSM) and East

Side Materials, L.L.C. (East Side) as respondents. However, the Board denies the motion to add

Farmdale Valley Dev. Inc. (Farmdale) and the United States Army Corps of Engineers (Corps)

as respondents.

Before discussing these motions and the Board’s rulings, the Board sets forth the case’s

procedural history and the applicable laws for today’s rulings.

PROCEDURAL HISTORY

On December 18, 2002, the Gebers filed a complaint against Moushon, Scharf Trucking,

the City of East Peoria, Mayor Chuck Dobbelaire, and City Administrator James Thomas

Brimberry.

On February 6, 2003, the Board dismissed the latter three respondents, but accepted

for hearing the Gebers’ complaint against Moushon and Scharf Trucking. Moushon filed an

The complaint is cited as “Comp. at _.”

answer on February 25, 2003, denying the complaint’s allegations. Scharf Trucking filed

an answer on February 27, 2003, denying the complaint’s allegations and raising as a purported

affirmative defense that Scharf Trucking lacks “an ownership interest in the mining operations.”

Scharf Trucking Ans. at 2.

On March 17, 2003, Moushon filed a motion for his dismissal from this case with

prejudice. Two days later, Scharf Trucking filed a motion for its dismissal from this case with

prejudice.

After obtaining the hearing officer’s leave for additional time to respond to these

motions, the Gebers filed a document on April 3, 2003, opposing dismissal of the two

respondents

and

seeking to amend the complaint by adding four more respondents: CSM; East

Side; Farmdale; and the Corps. The Gebers’ April 3 filing therefore responded to the motions to

dismiss and made a new motion. On April 14, 2003, Moushon filed a document constituting

both a reply to the Gebers’ response and a response to the Gebers’ motion to add respondents.

On May 1, 2003, the Gebers filed a reply to Moushon’s response.

The Board notes that both answers and both motions to dismiss were filed late. Under

the Board’s procedural rules, any answers were due within 60 days after service of the complaint

and any motions to dismiss were due within 30 days after service of the complaint.

See

35 Ill.

Adm. Code 101.506, 103.204(d). The Gebers served Moushon with the complaint on December

11, 2002, and served Scharf Trucking on December 12, 2002, but Moushon and Scharf Trucking

did not file their answers until late February or their motions to dismiss until mid-March. The

Gebers, however, failed to include in the complaint the required notice to respondents that failing

to timely answer the complaint would mean that the complaint’s material allegations are deemed

admitted.

See

35 Ill. Adm. Code 103.204(e), (f). In the interest of fairness and administrative

economy, the Board accepts the late-filed answers and motions to dismiss.

See

People v. Michel

Grain Co., PCB 96-143, slip op. at 2 (Aug. 22, 2002) (accepting late motion to dismiss when

notice in complaint was deficient).

Additionally, the Board cautions the parties that although

responses

to motions may be

made as of right,

replies

to those responses are allowed only with the leave of the Board or

hearing officer to prevent material prejudice.

See

35 Ill. Adm. Code 101.500(d), (e). Here,

Moushon and the Gebers filed replies without seeking leave. However, the Board recognizes

that the Gebers, who are not attorneys, entitled their April 3, 2003 filing an “amended

complaint.” The filing was in fact not an amended complaint but rather a motion to amend the

Moushon’s answer is cited as “Mouchon Ans. at _.” Scharf Trucking’s answer is cited as

“Scharf Trucking Ans. at _.”

Moushon’s motion to dismiss is cited as “Moushon Mot. at _.” Scharf Trucking’s motion to

dismiss is cited as “Scharf Trucking Mot. at _.”

The Gebers’ April 3, 2003 filing is cited as “Geber Resp.-Mot. at _.” Moushon’s April 14,

2003 filing is cited as “Moushon Reply-Resp. at _.” The Gebers’ May 1, 2003 reply is cited as

“Geber Reply at _.”

complaint, and a response to the motions to dismiss. Under these circumstances, the Board

accepts the replies of Moushon and the Gebers as no prejudice will result.

See

Michel Grain,

PCB 96-143, slip op. at 2 (accepting reply filed without leave when no prejudice would result to

other party).

APPLICABLE LAWS

Noise Laws

The Act provides:

No person shall emit

beyond the boundaries of his property

any noise that

unreasonably interferes with the enjoyment of life or with any lawful business or

activity, so as to violate any regulation or standard adopted by the Board under

this Act. 415 ILCS 5/24 (2002) (emphasis added).

For purposes of this Section [25] and Section 24, “beyond the boundaries of his

property” or “beyond the boundaries of the property of any person”

includes

personal property

as well as real property. 415 ILCS 5/25 (2002) (emphasis

added).

The Board’s noise rules provide:

No person shall

cause or allow

the emission of sound

beyond the boundaries of

his property

, as property is defined in Section 25 of the Illinois Environmental

Protection Act, so as to cause noise pollution in Illinois, or so as to violate any

provision of this Chapter. 35 Ill. Adm. Code 900.102.

Noise pollution: the emission of sound that unreasonably interferes with the

enjoyment of life or with any lawful business or activity. 35 Ill. Adm. Code

900.102.

[N]o person shall

cause or allow

the emission of impulsive sound from any

property-line-noise-source

located on any Class A, B, or C land to any receiving

Class A or B land which exceeds the allowable A-weighted sound levels,

measured with fast dynamic characteristic, specified in the . . . table [set forth in

this rule] when measured at any point within such receiving Class A or B land,

provided, however, that no measurement of sound levels shall be made less than

25 feet from such property-line-noise-source. 35 Ill. Adm. Code 901.104

(emphasis added).

Property-line-noise-source: any

equipment

or facility

, or combination thereof,

which operates within any land used as specified by 35 Ill. Adm. Code 901.101.

Such equipment or facility, or combination thereof, must be capable of emitting

sound beyond the property line of the land on which operated. 35 Ill. Adm. Code

900.101 (emphasis added).

Motion to Dismiss

When ruling on a motion to dismiss, the Board takes all well-pled allegations as true.

Dismissal is proper only if it is clear that no set of facts could be proven that would entitle

complainant to relief.

See

People v. Peabody Coal Co., PCB 99-134, slip. op. at 1-2 (June 20,

2002); People v. Stein Steel Mills Co., PCB 02-1, slip op. at 1 (Nov. 15, 2001), citing Import

Sales, Inc. v. Continental Bearings Corp., 217 Ill. App. 3d 893, 577 N.E.2d 1205 (1st Dist.

1991).

Adding Respondents

Section 101.403 of the Board’s procedural rules provides:

a) The Board, on its own motion or the motion of any party, may add a

person as a party to any adjudicatory proceeding if:

1) A complete determination of a controversy cannot be had without

the presence of the person who is not already a party to the

proceeding;

2) The person who is not already a party to the proceeding has an

interest that the Board’s order may affect; or

3) It may be necessary for the Board to impose a condition on the

person who is not already a party to the proceeding. 35 Ill. Adm.

Code 101.403(a).

Section 103.206 of the Board’s procedural rules provides:

a) The Board, on its own motion or the motion of a respondent, may order a

person to be added as a respondent if a complete determination of a

controversy cannot be had without the presence of the person who is not

already a party to the proceeding.

b) If the Board orders a person to be added as a respondent pursuant to

subsection (a) of this Section, the Board will grant the complainant leave

to file an amended complaint that sets forth a claim against the added

respondent. The amended complaint must meet the requirements of

Section 103.204 of this Subpart. 35 Ill. Adm. Code 103.206(a), (b).

DISCUSSION

The Board discusses the respective motions to dismiss of Moushon and Scharf Trucking

before turning to the Gebers’ motion to add respondents.

Motions to Dismiss

Moushon

In his motion to dismiss, Moushon states that, contrary to the complaint, he does not own

the real property at which the gravel mining takes place. Moushon Mot. at 1-2; Moushon Ans. at

see also

Comp. at 3. Mouchon states that the site was acquired by East Side in July 2002 and

that he is just the registered agent of East Side. Moushon Mot. at 1-2. He adds that East Side

subsequently leased the entire site to CSM.

. at 1.

Moushon, who is an attorney, argues that as a registered agent, he simply receives service

of process for East Side and has no personal liability. Moushon Reply-Resp. at 1. In response,

the Gebers concede that Moushon does not own the site, but maintain that he should remain a

respondent because he is East Side’s registered agent and because he “has promoted the

development, and is actively representing all parties involved.” Geber Resp.-Mot. at 1.

The noise provisions of the Act and Board rules allegedly violated, which are set forth

above, prohibit persons from

causing or allowing

improper sound emissions.

See

415 ILCS 5/24

(2002); 35 Ill. Adm. Code 900.102, 901.104. Moushon’s mere status as a registered agent or

development promoter or representative cannot alone render him in violation for causing or

allowing the noise emissions alleged. The Gebers have alleged no other basis for his liability.

Because Moushon’s alleged violations are based solely on this status, the Board grants

Moushon’s motion for his dismissal from this case with prejudice.

Scharf Trucking

In its motion to dismiss, Scharf Trucking states that it is not the same entity as CSM. Mr.

Carri Scharf explains in an attached affidavit that he is President of both Scharf Trucking and

CSM. Scharf Trucking Mot. at 1, Affid. at 1. According to Mr. Scharf, Scharf Trucking is an

“unincorporated business” while CSM is an Illinois corporation headquartered in Bloomington,

Mclean County. Scharf Trucking Mot., Affid. at 1. The affidavit further provides that CSM is

the “sole leaseholder” at the site.

. at 2. Scharf Trucking maintains that it has no property

interest in the site. Scharf Trucking Mot. at 1, Affid. at 1. In its purported affirmative defense,

Scharf Trucking states that it “does not have an ownership interest in the mining operations.”

Scharf Trucking Ans. at 2.

The Gebers respond that Scharf Trucking is a proper respondent because “much of the

equipment generating noise at the mining site is identified with the name ‘Carri Scharf

Trucking.’” Geber Reply at 1; Geber Resp.-Mot. at 1.

For purposes of the noise provisions at issue, the Board notes that “property” and

“property-line-noise-source,” by definition, include personal property such as equipment.

See

415 ILCS 5/25 (2002); 35 Ill. Adm. Code 900.101. Nowhere in its filings does Scharf Trucking

state that it has no interest in or control over any

personal

property being used at the site that

may be generating the complained of noise.

Moreover, ownership of property is not a prerequisite to violating the Act or Board rules

against causing or allowing improper emissions. As the Illinois Supreme Court stated: “The

analysis applied . . . for determining whether an alleged polluter has violated the Act is whether

the alleged polluter exercised sufficient control over the source of pollution.” People v. Fiorini,

143 Ill. 2d 318, 346, 574 N.E.2d 612, 623 (1991), citing Philips Petroleum Co. v. PCB, 72 Ill.

App. 3d 217, 390 N.E.2d 620 (2d Dist. 1979) (train derailment punctured tank car releasing gas

into air; gas company, which owned and loaded tank car, did not “cause or allow” air pollution

where railroad company controlled the tank car at time it derailed). A complainant therefore

“must show that the alleged polluter has the capability of control over the pollution or that the

alleged polluter was in control of the premises where the pollution occurred.” People v. A.J.

Davinroy Contractors, 249 Ill. App. 3d 788, 793, 618 N.E.2d 1282, 1286 (5th Dist. 1993).

Based on the current record, the Board cannot find that no set of facts could be proven

that would entitle the Gebers to relief from Scharf Trucking. The Board therefore denies Scharf

Trucking’s motion to be dismissed from this case. The Board also notes that Scharf Trucking’s

filings have been made by its President, Mr. Scharf. The record does not indicate that he is an

attorney. Under Illinois law, a corporation must be represented by an attorney in an adjudicatory

proceeding before the Board.

See

35 Ill. Adm. Code 101.400(a)(2). If however, as it appears,

Scharf Trucking is Mr. Scharf’s unincorporated sole proprietorship, he may continue to represent

Scharf Trucking in this proceeding even if he is not an attorney.

See

Riverview FS v. IEPA,

PCB 97-226, slip op. at 3 (July 10, 1997) (unincorporated sole proprietorship may proceed on

own behalf or through attorney).

Motion to Add Respondents

The Gebers seek to amend their complaint to add four entities as respondents: CSM;

East Side; Farmdale; and the Corps.

CSM

In their motion, the Gebers assert that CSM is leasing the site from East Side. Geber

Resp.-Mot. at 1. Mr. Scharf, President of CSM, concedes this. Scharf Trucking Mot. at 1, Affid.

at 1. To allow for a complete determination of this controversy, the Board grants the Gebers’

motion for leave to amend the complaint to add CSM.

See

35 Ill. Adm. Code 103.206(a).

Because CSM is a corporation, it will have to be represented by an attorney.

See

35 Ill. Adm.

Code 101.400(a)(2).

East Side, Farmdale, and the Corps

The Gebers move to add East Side, Farmdale, and the Corps based on their “legal

ownership of the property in question.” Geber Resp.-Mot. at 1. Moushon, the registered agent

for East Side, states that East Side is actually the

only

owner of the site and provides a trustee’s

deed recorded by the Tazewell County Recorder of Deeds documenting East Side’s July 2002

purchase. Moushon Mot. at 1, Attach. Furthermore, Moushon argues that the only proper

respondent in this enforcement action is CSM because CSM is the site’s sole tenant and “sole

operator of the mining operations,” and because “[a]ny noise being generated on the subject

property is under the exclusive control of [CSM].” Moushon Mot. at 2; Moushon Reply-Resp. at

With their motion, the Gebers provide property tax documents that, on their face, indicate

that at some point in time Farmdale and the Corps were in “ownership” of some parcels of land.

Geber Resp.-Mot., Attach. According to the Gebers, these documents establish that Farmdale

and the Corps, not only East Side, are the “legal owners” of the site. Geber Resp.-Mot. at 1.

Moushon responds that neither Farmdale nor the Corps is a record owner of the site. Moushon

Reply-Resp. at 2.

In their reply, the Gebers state:

[A]ll landowners, whomever they are, should be named in this complaint.

Certainly any landowner should be aware of, and responsible for what events

occur on his or her property. We are trying to name the proper owners, somebody

must own this property! Geber Reply at 1.

To rule on the Gebers’ motion for leave to file an amended complaint, the Board need not

reach all issues raised over property ownership, and certainly cannot decide whether and to what

extent any given entity controls or is capable of controlling noise generated by the mining

operations. However, it is well-established that a property owner may be found in violation of

the Act or Board rules even if it has not actively caused the emissions at issue.

See

Perkinson v.

PCB, 187 Ill. App. 3d 689, 694-95, 543 N.E.2d 901, 904 (3d Dist. 1989) (“the owner of the

source of pollution causes or allows the pollution . . . unless the facts establish the owner either

lacked the capability to control the source . . . or had undertaken extensive precautions”);

Meadowlark Farms, Inc., v. PCB, 17 Ill. App. 3d 851, 861, 308 N.E.2d 829, 836 (5th Dist. 1974)

(property owner violated Act’s prohibition on causing or allowing discharge resulting in water

pollution because owner had “capability of controlling the pollutional discharge”); Michel Grain,

PCB 96-143, slip op. at 4 (“[R]espondent with control over a site may be found in violation even

if the respondent did not actively dispose of contaminants.”).

Here, East Side’s registered agent, Moushon, has represented that East Side owns the site

of the mining operation and has provided a deed to corroborate his representation. The Board

finds that a final order in this enforcement action may affect an interest of East Side and further

that it may be necessary to impose a condition on East Side in a final order.

See

35 Ill. Adm.

Code 101.403(a)(2), (3). Accordingly, the Board grants the Gebers’ motion for leave to file an

amended complaint that adds East Side.

On this record, however, the Board cannot find that the land purportedly owned by

Farmdale and the Corps is the real property on which the mining operations take place.

Moreover, it is unclear whether Farmdale and the Corps still own the parcels identified in the tax

documents provided by the Gebers. The Board therefore denies the Gebers’ motion for leave to

file an amended complaint naming Farmdale or the Corps as respondents.

Amended Complaint

The Gebers have 30 days from receipt of this order to file the amended complaint adding

CSM and East Side as respondents.

See

35 Ill. Adm. Code 101.302, 101.304, 103.204(a), (b).

The amended complaint must, among other things, set forth a claim against CSM and East Side

and include the required notice to respondents about the effect of failing to timely file an answer

to the complaint.

See

35 Ill. Adm. Code 103.204, 103.206(b).

By granting the Gebers’ motion

for leave to file

an amended complaint, the Board today

not

accepting any such complaint for hearing. If and when the Board receives an amended

complaint, the Board will decide in a separate order whether to accept the complaint for hearing.

Once the Gebers serve CSM and East Side with the amended complaint, then those entities will

have an opportunity to be heard. Under the Board’s procedural rules, time periods within which

CSM and East Side may file any answers or responsive motions will begin to run from their

respective receipt of the amended complaint.

See

e.g.

, 35 Ill. Adm. Code 101.506, 103.204(d),

(e), 103.212(b).

CONCLUSION

The Board grants Moushon’s motion to be dismissed from this enforcement action and

denies Scharf Trucking’s motion to be dismissed. The Board therefore directs the Clerk to

remove Moushon from the caption of this case, leaving Scharf Trucking as the lone respondent

at this time. Additionally, the Board grants the Gebers’ motion for leave to file an amended

complaint against CSM and East Side, but denies the motion with respect to Farmdale and the

Corps. Within 30 days after receiving this order, the Gebers may file an amended complaint that

adds CSM and East Side as respondents.

IT IS SO ORDERED.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board

adopted the above order on May 15, 2003, by a vote of 7-0.

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board