ILLINOIS POLLUTION CONTROL BOARD
November 7, 2002
MORRY GABEL, MYRA GABEL, DON
FOREMAN, MARSHA FOREMAN, KEITH
PINSONEAULT and TRACY
PINSONEAULT,
Complainants,
v.
THE WEALSHIRE, INC., an Illinois
corporation,
Respondent.
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PCB 03-38
(Citizen’s Enforcement - Noise)
ORDER OF THE BOARD (by W. A. Marovitz):
On September 27, 2002, complainants filed a complaint against The Wealshire Inc., an
Alzheimer’s Disease care facility (Wealshire).
See
415 ILCS 5/31.1(d) (2000)
amended by
P.A.
92-0574, eff. June 26, 2002; 35 Ill. Adm. Code 103.204. Complainants allege that Wealshire
violated Section 24 of the Environmental Protection Act (Act) (415 ILCS 5/24 (2000)
amended
by
P.A. 92-0574, eff. June 26, 2002), as well as 35 Ill. Adm. Code 900.102 and 35 Ill. Adm.
Code 901.102(a) and (b) of the Board’s noise regulations. Complainants further allege that
Wealshire violated these provisions by emitting noise from operating air conditioning units that
unreasonably interfere with the use and enjoyment of the complainants' property and health.
Complainants also allege the noise depresses complainants’ property values. Wealshire is located
at 150 Jamestown Lane, Lincolnshire, Lake County. The units are located on the north side of
the property and in proximity to complainants’ properties.
Section 31(d) of the Act (415 ILCS 5/31(d) (2000)
amended by
P.A. 92-0574, eff. June
26, 2002) allows any person to file a complaint with the Board. Section 31(d) further provides
that “[u]nless the Board determines that such complaint is duplicative or frivolous, it shall
schedule a hearing.”
Id.
;
see also
35 Ill. Adm. Code 103.212(a). A complaint is duplicative if it
is “identical or substantially similar to one brought before the Board or another forum.” 35 Ill.
Adm. Code 101.202. A complaint is frivolous if it requests “relief that the Board does not have
the authority to grant” or “fails to state a cause of action upon which the Board can grant relief.”
Id.
Within 30 days after being served with a complaint, a respondent may file a motion alleging
that the complaint is duplicitous or frivolous. 35 Ill. Adm. Code 103.212(b). Wealshire has filed
no motion. No evidence before the Board indicates that the complaint is duplicative or frivolous.
The Board accepts the complaint for hearing.
See
415 ILCS 5/31(d) (2000)
amended by
P.A. 92-0574, eff. June 26, 2002; 35 Ill. Adm. Code 103.212(a). A respondent’s failure to file an
answer to a complaint within 60 days after receiving the complaint may have severe
consequences. Generally, if Wealshire fails within that timeframe to file an answer specifically
denying, or asserting insufficient knowledge to form a belief of, a material allegation in the
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complaint, the Board will consider Wealshire to have admitted the allegation. 35 Ill. Adm. Code
103.204(d).
The Board directs the hearing officer to proceed expeditiously to hearing.
Among the
hearing officer’s responsibilities is the “duty . . . to ensure development of a clear, complete, and
concise record for timely transmission to the Board.” 35 Ill. Adm. Code 101.610. A complete
record in an enforcement case thoroughly addresses, among other things, the appropriate remedy,
if any, for the alleged violations, including any civil penalty.
If a complainant proves an alleged violation, the Board considers the factors set forth in
Sections 33(c) and 42(h) of the Act to fashion an appropriate remedy for the violation.
See
415
ILCS 5/33(c), 42(h) (2000). Specifically, the Board considers the Section 33(c) factors in
determining, first, what to order the respondent to do to correct an on-going violation, if any,
and, second, whether to order the respondent to pay a civil penalty. The factors provided in
Section 33(c) bear on the reasonableness of the circumstances surrounding the violation, such as
the character and degree of any resulting interference with protecting public health, the technical
practicability and economic reasonableness of compliance, and whether the respondent has
subsequently eliminated the violation.
If, after considering the Section 33(c) factors, the Board decides to impose a civil penalty
on the respondent, only then does the Board consider the Act’s Section 42(h) factors in
determining the appropriate amount of the civil penalty. Section 42(h) sets forth factors that may
mitigate or aggravate the civil penalty amount, such as the duration and gravity of the violation,
whether the respondent showed due diligence in attempting to comply, any economic benefit that
the respondent accrued from delaying compliance, and the need to deter further violations by the
respondent and others similarly situated.
Accordingly, the Board further directs the hearing officer to advise the parties that in
summary judgment motions and responses, at hearing, and in briefs, each party should consider:
(1) proposing a remedy for a violation, if any, including whether to impose a civil penalty, and
supporting its position with facts and arguments that address any or all of the Section 33(c)
factors; and (2) proposing a civil penalty, if any, including a specific dollar amount, and
supporting its position with facts and arguments that address any or all of the Section 42(h)
factors.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above order on November 7, 2002, by a vote of 6-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
