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F:\CLJENTS\L T D-noise\Pleadings\Motion-file-brief.wpd
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ApriI2l,2003
~
2003
ILLINOIS POLLUTION CONTROL BOARD
STArE OF ILLINOiS
Poll~t1~,~
Control Board
KAREN & ANTHONY ROTI, et al,
)
)
Complainants,
)
)
v.
)
PCB 99-19
)
(Enforcement
-
Noise, Citizens)
LTD COMMODITIES,
)
)
Respondent,
)
RESPONDENT’S
MOTION TO FILE CLOSING
BRIEF INSTANTER
Respondent, LTD Commodities, Inc.,
by its
attorneys, Baizer & Kolar,
P.C., respectfully
requests that the PCB allow LTD to file
instanter
its closing brief.
LTD’s brief was due on Friday
April
18,2003.
LTD’sattorney was unable to complete the briefby April 18 because ofdepositions
he had scheduled the week ofApril 14, 2003.
Respondents were given a six-week extension to file
their closing brief and LTD requests only a two-business
day extension to file its
brief.
WHEREFORE, LTD
Commodities respectfullyrequests that the Illinois Pollution Control
Board accept LTD’ s closing briefforfiling instanter on April 22, 2003 and grant Complainants until
May 6, 2003 (the same two-business day extension) to file their reply
brief.
LTD Commodities
By___________
9oseph~.
Kolar, one OfIts Attorne~s
ATTORNEYS FOR RESPONDENT
BAIZER & KOLAR, P.C.
513
Central Avenue,
5th
Floor
Highland Park, IL
60035
847-433-6677
847-433-6735 (Fax)
CERTIFICATE OF SERVICE
The undersigned attorney certifies that on April 21,
2003, he served the original and nine
copies ofthe foregoingRESPONDENT’S MOTIONTO FILE CLOSINGBRIEF INSTANTER by
Federal Express upon the Illinois Pollution Control Board,
at the following address:
Ms. Dorothy M. Gunn
Clerk ofthe Illinois Pollution Control Board
100 West Randolph Street
Suite 11-500
Chicago, IL
60601
and one copy by
fax and regular mail upon the following person:
Steven P.
Kaiser, Esq.
33
E. Wacker Drive
Suite
1750
Chicago, IL 60601
Fax: 312-782-4519
J~?~ar
2
C ~
F:\CLIENTS\L T D-noise\Pleadings\Closing-brief-remedy.wpd
CLERKS
OFFICE
April 21,2003
ILLINOIS POLLUTION CONTROL BOARD
~PR
22
2003
KAREN & ANTHONY ROTI, et al,
)
S~/~
OF ILLlNO~5
Pollution
Control Board
Complainants,
)
)
v.
)
PCB 99-19
)
(Enforcement
-
Noise, Citizens)
LTD COMMODITIES,
)
)
Respondent,
)
RESPONDENT LTD COMMODITIES’ CLOSING BRIEF
REGARDING APPROPRIATE REMEDIES
I.
Introduction
In its February
15,
2001, decision the PCB found that LTD was a nuisance regarding its
nighttime
trucking operations.
The PCB ordered this matter to hearing “to further address
appropriate remedies.”
(February
15,
2001, decision, p. 33).
A PCB hearing officer received
additional testimony on October
15-16,
2002, and December 9, 2002.
On October
16, 2002,
LTD’s vice president ofdistribution, Jack Voigt, testified that LTD would
not operate its second
shift (nighttime
shift) as of October
18, 2002.
(Jack Voigt, October
16, 2002, p.
76).
Mr. Voigt
explained that LTD
was able to
shut down its second shift because it had opened a new
Naperville facility that reduced truck traffic in Bannockburn.
(Jack Voigt,
October 16, 2002, pp.
76-77).
When Mr. Voigt testified again on December 9,
2002, he confirmed that LTD had not
operated a second shift
since October
18, 2002.
(Jack Voigt, December
9,
2002, p.
74).
This
testimony
by Mr. Voigt is very relevant to the section 3 3(c)
factors the PCB must consider in
determining an appropriateremedy.
However, the Complainants basically ignore
this crucial
evidence and instead argue that LTD should build a wall that towers 35 feet over its truck dock
employees and will cost
$1.5
to
3.0 million.
Clearly, with the changed circumstances at the LTD
site, it would be
grossly unreasonable
and contrary to the section 3 3(c) factors to require LTD to
build any wall.
For the same reasons, any civil penalty would be inappropriate as well.
II.
LTD’s
Closing Argument
A.
Circumstances Have Changed At LTD
Since The PCB’s February 15, 2001, Decision
The PCB must consider the section 33(c)
factors when “making its
orders and
determinations.”
Thus, the factors must be
considered when determining an appropriate remedy.
As noted above, as ofOctober
18, 2002, LTD was not even operating
at night.
Two section 3 3(c)
factors are very relevant regarding this
change ofcircumstances.
First, the “character and degree
ofinjury” is not the same as when the PCB found LTD’s nighttime operations to
be a nuisance.
Indeed, as ofOctober
18, 2002, the nuisance no
longer existed!
The nuisance also did not exist
as ofDecember 9, 2002, when Mr. Voigt testified for a second time during the remedy phase of
this case. Thus, the “character and degree of injury” factor now favors LTD.
B.
The Section
33(c) “Subsequent Compliance”
Factor Strongly Favors LTD
In their closing brief, Complainants state that since February
15, 2001,
“LTD
did
absolutely nothing to find appropriate methods for reducing the level ofnoise at LTD or
preventing the noise migrating off-site.”
(Complainants’ Closing Brief, pp.
3-4).
This statement
is false.
It is an
absolute misstatement of the record and steps taken by LTD
since the PCB’s
February
15,
2001, decision.
LTD’s warehouse space in Bannockburn totals 350,000 square feet.
(February
15, 2001,
decision, p.
5).
In May 2001,
after the PCB ‘s February
15,
2001,
decision,
LTD opened a
facility in Naperville.
(Jack Voigt, October
16, 2002,
p.
75).
This facility
is 400,000 square feet.
2
(Jack Voigt,
October 16, 2002,
p.
58).
The volume of shipping at LTD’s Bannockburn facility
dropped when LTD opened a new facility in Aurora.
(February
15, 2001, decision, p. 4).
When
LTD opened its Naperville facility, the volume dropped even further.
(Jack Voigt, October 16,
2002, pp. 76-77).
This drop in volume enabled LTD to shut down its night
shift on Friday,
October 18, 2002.
(Jack Voigt, October
16, 2002, pp. 76-77).
LTD did not work a night, shift the
rest ofits busy season.
It only had a couple of trucks a night leave LTD (and no incoming trucks)
the week ofDecember 9, 2002.
(Jack Voigt, December
9, 2002,
p.
74). This evidence
completely refutes the Complainants’ argument that “LTD did absolutely nothing” to reduce the
migration ofnoise to their properties.
The closing of LTD’s second shift
is very relevant regarding an appropriate remedy. Any
subsequent compliance
is a factor to consider under section 33(c).
Indeed, in its
February
15,
2001, decision, the PCB weighed this factor against LTD because “the noise problem was
ongoing as ofthe time ofthe hearing.”
(February
15,
2001,
decision, p. 31).
Since the noise
problem was not ongoing as ofthe remedy hearings, this factor nowmust be weighed in LTD’s
favor.
Contrary to Complainants’ false assertion in their closing brief, LTD took other steps
after February
15,
2001, regarding an
appropriate remedy to the noise complaints.
First,
LTD
further investigated the cost to install a wall.
(See Respondent’s Ex. K, May 21,
2001, proposal).
The May 21, 2001, proposal was in addition to the many other proposals LTD obtained before
February
15, 2001.
~
February
15,
2001, decision, pp.
13-14).
Since no one
gave LTD
assurances a wall would eliminate the noise complaints, it did not pursue a noise wall further.
(Jack Voigt, October
16, 2002, pp. 74-75).
As ofthe hearing last October, Dr.
Schomer and
3
Steve Mitchell (whose company would build any wall) were still unwilling to assure LTD that
any wall would eliminate the complaints in this case.
(Dr. Schomer, October
15,
2002,
p.
178;
Steve Mitchell, October
15,
2002, pp. 245-46).
No responsible business can spend even
$300,000 on a wall that
maypossibly
eliminate the complaints in this case.
LTD investigated possible noise mitigation measures besides a wall.
First, LTD
investigated the cost to enclose its truck dock operations.
This
option was deemed too costly.
(Jack Voigt, October
16, 2002, pp.
51-52).
LTD also investigated installing absorptive materials
on the north face of its warehouse.
However, this option was not pursued further because neither
Dr. Tom Thunder nor Dr. Paul Schomer believed it would be beneficial. (Dr. Paul Schomer,
October
15,
2002,
p.
188; Dr. Tom Thunder, October
15,
2002, pp.
270-71).
Finally, LTD
has committed to turning offthe backup beeper on its yard tractor at night.
It has agreed to hire a dock pilot for use at night to keep trucks offLakeside Drive.
(Jack Voigt,
October 16, 2002,
p.
53).
These steps have been unnecessary so far because LTD has not
operated a night shift
since October
18, 2002.
C.
The Wall Proposed By Dr. Paul
Schomer Is Neither
Technically
Practicable Nor Economically Reasonable
As the PCB is aware, another section 33(c) factor is the “technical practicability and
economic reasonableness” ofa proposed remedy.
The 25-foot high, 520-foot long wall proposed
by Dr.
Schomer does not meet either element ofthis factor.
1.
Dr. Schomer’s Wall Is
Not Technically Practicable
David Lothspeich, the former village manager for Bannockburn, testified at the hearing.
He testified that he was familiar with Bannockburn’s zoning code regarding walls.
Mr.
4
Lothspeich testified that the Bannockburn zoning code only permitted fences and/or walls
up to
six feet high.
(David Lothspeich,
October
15,
2002,
p.
150).
He testified that a 25-foot high wall
was not allowed by the zoning code.
(David Lothspeich, October
15,
2002,
p.
150).
Mr.
Lothspeich further explained that Bannockburn had a varianceprocedure in its
zoning code.
However, the existing variance procedure only allows height variances of up to 20 percent ofthe
permitted height of a wall (six feet here).
(David Lothspeich, October
15,
2002,
p.
151).
Thus,
assuming Bannockburn approved a full 20 percent variance (which is not a given),
LTD could
only
build a wall that was approximately seven feet tall.
While LTD
could request Bannockburn
to amend some provision ofits
zoning code to
approve a 25-foot high wall, such an amendment
is unlikely since it would apply throughout Bannockburn.
Bannockburn undoubtedly does not
want to
set a precedent for 25-foot high walls
throughout the community.
Thus, the wall
proposed by Dr. Schomer is not technically practicable when it is not permitted by
Bannockburn’s zoning code.
Dr.
Schomer’s proposed wall is not technically practicable because it cannot be built
where shown by Dr.
Schomer.
LTD
hired engineer Edward Anderson to
investigate if a wail
could be built where shown by Dr.
Schomer.
Mr. Anderson, after much investigation,
determined that there was a fabric mesh that supported LTD’ s retaining wall in the dock area.
Mr. Anderson and Jack Voigt saw the actual fabric that supports the retaining wall.
(Edward
Anderson, October 16, 2002,
p.
15; Jack Voigt, October
16, 2002,
p. 44).
Mr. Anderson even
produced a drawing that depicted the support
fabric.
(~
Respondent’s Ex. M).
With the
support fabric, nothing can be built within 16 feet ofthe retaining wall without destroying the
retaining wall.
(Respondent’s Ex. M, p.
1; Edward Anderson, October
16, 2002, pp.
2 1-26).
5
Steve Mitchell ofthe Huff Company, the company that would oversee construction of any wall,
agreed that no wall could be built in the
16-foot zone of influence.
(Steve Mitchell, October
15,
2002, pp. 234, 245).
Complainants make much ofthe fact that LTD obtained proposals to build a wall where
now proposed by Dr.
Schomer.
This fact does not mean it is technically practicable to build a
wall there.
The proposal submitted to
Dr.
Schomer contained the following note:
“This proposal is based upon normal soil
conditions.
Soil samples must be
obtained prior to final caisson design.
Actual soil
conditions may effect design
and cost ofcaissons.”
(~
Respondent’s Ex. K).
The soil conditions are not normal in the area where Dr.
Schomer
proposes construction ofa wall.
Mr. Anderson testified that fill soil does not provide the same
support from wind loads as clay soil.
(Edward Anderson, October 16, 2002,
p. 29).
Mr.
Anderson testified that there was necessarily
fill soil
in the location where Dr.
Schomer proposed
construction of a wall because ofthe fabric mesh used to support the retaining wall.
(Edward
Anderson, October 16, 2002,
p. 28).
The construction drawing for the retaining wall shows fill
soil
deposited over the various layers offabric.
(See Respondent’s Ex. M, p. 2).
Thus, even if
LTD had committed to building a wall, it would have quickly learned that a wall could not be
built along the retaining wall.
The wall location recommended by Dr. Schomer also is not technically practicable
because it poses a danger to workers in the truck dock area.
The truck dock is about ten feet
below the grade
where Dr.
Schomer recommends
construction of the wall.
Thus, the wall
recommended by Dr. Schomer would
tower 35feet above the truckdock area.
Photos submitted
by
LTD illustrate the frightening
height ofthe wall recommended by
Dr.
Schomer.
Respondent’s
6
1—
exhibit A is a photo ofa light pole in the area where
Dr. Schomer recommends construction of
his 25-foot high wall.
The pole in the photois
28
feet high.
(Respondent Ex. A; Jack Voigt,
October
16, 2002,
p. 43).
No one in this case has experience with a 25-foot high free standing wall, let alone one
built next to
a 10-foot grade change.
Dr.
Schomer could not point to such a tall free standing
wall anywhere.
(Dr. Paul Schomer, October
15, 2002,
p. 212).
Edward Anderson, the only civil
engineer to testify
in this case, only has experience with walls
18-20 feet high.
(Edward
Anderson, October
16, 2002,
p. 27).
Mr. Anderson basically indicated that when walls get more
than 20 feet high, they are usually connected to three other walls and called a building.
(Edward
Anderson, October
16, 2002, pp. 27-28).
Steve Mitchell testified that his company built a wall
26-feet high, but the wall was located in a field near Libertyville.
(Steve Mitchell, October
15,
2002, p.
237).
Most important, this wall had a second side built at a right angle that provided
support for such a high wall.
(Steve Mitchell, October
15,
2002,
p. 242; Edward Anderson,
October
16, 2002, pp. 27-28).
Similarly, the structure to the east of LTD and shown in
Complainants’ exhibit B4 has four sides which add
strength to the structure.
(Edward Anderson,
October
16, 2002,
p. 29).
The wall proposed by
Dr. Schomer is free standing.
It has no other
right angle walls to support the wall.
Most important, it is proposed at the edge ofa 10-foot
grade change with workers down below.
Based on the safety concern of a wall towering 35 feet
above a work area, Dr.
Schomer’s proposed wall is not technically practicable.
To avoid damage to
the retaining wall, Complainants suggest that LTD
should build a
wall outside the support fabric’s “zone ofinfluence.”
This would place Dr.
Schomer’s proposed
wall in LTD’s north parking lot.
(Jack Voigt, October
16, 2002, pp. 45-46).
As noted below,
7’
this proposal is not economically reasonable.
However, this suggestion is also not technically
practicable.
In its February
15, 2001, decision, the PCB concluded that it “will not order the
construction of a noise wall if it would
not be effective.”
(February
15, 2001, decision, p.
32).
Dr. Tom Thunder, the noise expert retained by LTD, testified that a wall in the parking lot would
not be effective because walls are most effective when built close to the source orreceiver.
(Dr.
Tom Thunder, December 9, 2002,
p. 21).
Dr.
Schomer agreed that “when the barrier is in the
middle, kind of out in the open, the barriers don’t work as well.”
(Dr. Paul Schomer, October
15,
2002, p.
114).
•Thus, it is clear that Dr.
Schomer’s proposed wall cannot be built on the retaining
wall and cannot be built in the parking lot.
Dr.
Schomer’s proposed wall is not technically practicable because it is based on a flawed
design and misunderstanding ofthe facts in this case.
First, Dr.
Schomer proposes a 150-foot
extension ofthe wall (or relocating LTD’s exit ramp) because ofnoise problems on Lakeside
Drive.
(Complainants’ Ex. A, p. 2).
However, the PCB found that “Complainants did not
strongly object to the noise ofthe trucks on Lakeside Drive.”
(February
15, 2001, decision, p.
22).
Second, Dr.
Schomer determined that a 25-foot high wall was needed because the “critical
path is sound from the 12-ft high source that reflects offthe hard LTD wall, over the noise
barrier,
to the second floor of the indicated Weber
residence.”
(Complainants’ Ex. A, p.
4).
The
12-foot high noise source is exhaust from trucks.
(Complainants’ Ex. A, p. 4).
However,
the primary complaints here concern noise atthe four-foot high level.
This is the level ofthe air
brakes on trucks and the fifth wheel.
(Dr. Paul
Schomer, October
15,
2002, pp.
183-85).
Dr.
Thunder agreed that Dr.
Schomer’ s wall was not designed to mitigate the noise at issue in this
case.
(Dr. Tom Thunder, December 9, 2002,
p. 29).
8
Dr.
Schomer determined the height ofhis wall based on the Weber house being 21
feet
above the elevation ofthe dock area.
($~
Complainants’ Ex. A, pp.
2 and 4).
However, Dr.
Schomer did not consider that the Weber home is significantly farther away from LTD thanthe
Roti and Rosenstrock homes.
Dr. Thunder testified that the Weber home was less affected by
noise because ofits
distance from the source.
(Dr. Tom Thunder, October
15, 2002, p.
260;
December 9, 2002,
p.
18).
The sheer distance between the Weber home and LTD’s dock area is
undoubtedly the reason Christopher Weber is not affected by noise from LTD.
(February
15,
2001,
decision, p. 9).
While Dr. Schomer spoke to
the Webers the day before he testified on
October 15, 2002, he did not ask them if the noise was now affecting their son.
(Dr. Paul
Schomer, October
15,
2002, pp.
181, 226).
2.
Dr. Schomer’s Wall Is Not Economically Reasonable
In this case, the PCB has concluded that “the $300,000 estimate forthe noise wall herein
is
a significant sum.”
(February
15, 2001,
decision, p. 30).
The Complainants’ response to
this
conclusion was
to propose a wall that cost
a minium of$623,350!
The cost ofDr.
Schomer’s
wall would jump to nearly $900, 000 if another 150-foot
section was added to the wall.
(Complainants’
Ex.
A, p.
2; Dr.
Paul
Schomer, October
15,
2002, p.
206).
As noted above, Dr.
Schomer’s proposed wall cannot even be built for various reasons.
Assuming that Bannockburn
would amend its
ordinances and allow a 25-foot tall noise wall on top ofthe retaining wall, such
a wall would cost $1.5 to $3
million.
(Edward Anderson, October 16, 2002,
p. 26).
The cost ofa
wall where proposed by Dr. Schomer increases dramatically because the entire retaining wall
would have to
be demolished and then the retaining wall and noise wall built as a unified
structure.
A wall costing at least $1.5 million is not economically reasonable under any
9
definition ofthat phrase.
As noted above, a wall in LTD’s parking lot (constructed away from the retaining wall) is
not technically practicable.
However, such a wall also
is not economically reasonable.
Jack
Voigt testified that LTD already has insufficient parking at its Bannockburn facility.
LTD
leases
about 110 parking spaces
from a nearby church.
(Jack Voigt,
October 16, 2002, pp. 44-45).
Mr.
Voigt testified that if the wall were
built outside the support fabric “zone of influence,” LTD
would lose 35-40 parking spaces.
(Jack Voigt, October
16, 2002, pp.
45-46).
Mr. Voigt testified
that Bannockburn will not allow LTD to lease additional parking spaces offsite.
(Jack Voigt,
October 16, 2002,
p. 47).
Most important, Mr. Voigt testified that the loss of35-40 parking
spaces would depreciate the fair market value of the entire LTD site.
(Jack Voigt, October
16,
2002, pp. 48-49).
While Mr. Voigt is not an appraiser, he worked closely with consultants and
architects to design LTD’s 1995 warehouse expansion.
(Tr.
1205-06).
This expansion included
an employee parking lot on the
south side of LTD’s warehouse.
Thus, Mr. Voigt does have an
adequate base of knowledge to
conclude that losing
35-40 parking spaces would
depreciate the
overall value ofthe LTD site.
The
construction ofeven a $623,350 noise wall is not economicallyreasonable for other
reasons as well.
Those reasons include that LTD has never operated a night shift at Bannockburn
on a year round basis.
Even in its busiest years, it only operated a second shift from
late July
until Christmas.
Dr. Thunder agreed that construction of the wall proposed by Dr. Schomer was
not reasonable for a seasonal operation.
(Dr. Tom Thunder, December 9, 2002,
p.
12).
Moreover, LTD discontinued its night shift effective October 18, 2002.
While Mr. Voigt could
not guarantee that there would be
no night shift in the future, it is not economically reasonable to
10
require LTD to
spend more than $1
millionbased on thepossibility of future operations after
10:00 p.m.
Moreover, the PCB should be aware that since December 9, 2002, LTD
has leased an
additional 700,000 square feet of space in Aurora.
Besides Bannockburn, LTD now has two
buildings in Aurora (260,000 and 700,000 square feet) and the 400,000 square feet building in
Naperville that opened in May 2001.
The additional Aurora building should further reduce truck
traffic at LTD’s Bannockburn facility.
LTD, contrary to the suggestion by Complainants,
is not a cash cow that can easily afford
a wall costing more than $1
million.
All businesses look at the benefits ofcapital improvements.
In this case, LTD offered the following stipulation to Complainants regarding its financial ability
to pay for a noise wall:
LTD Commodities stipulates that by
borrowing money, it could pay for the
construction ofa $623,350 noise wall.
However, a noise wall costing that amount
would be
a significant expense for LTD
with no operating benefit to LTD.
(October 16, 2002,
pp. 5-6).
While Complainants would not
agree to this stipulation, it still
is
accurate regarding LTD’s position
on a $623,500 wall.
LTD’s position obviously
would be the
same regarding a wall that cost more than $1
million.
Regardless ofwhether a wall cost
$300,000, $623,350, $1,500,000
or $3,000,000, any proposed wall is not economically
reasonable when Dr. Schomer, Dr. Thunder and Steve Mitchell cannot assure LTD that the wall
would eliminate complaints from neighbors to the north (whether current or future residents).
(February
15, 2001, decision, p 28).
D.
Priority Of Location Favors LTD
In its February 15, 2001, decision, the PCB concluded that “LTD clearly has the priority
oflocation.”
(February
15, 2001, decision, p.
27).
This is an important factor to
consider when
11
E.
LTD Is Not An Alleged Nighttime Nuisance Until Noise
Is Emitted “Beyond The Boundaries” Of Its Property
LTD respectfully disagrees with the PCB that it is a nuisance during nighttime hours.
Evenif LTD was a nuisance, circumstances have changed at the site.
For these reasons, LTD
does not believe it should be required to build a noise wall anywhere on its property.
Regardless,
the two nuisance provisions at issue here give LTD a right to build a noise wall on its north
property line if it is ultimately required to build a wall.
Section 24 ofthe Environmental
Protection Act provides that “no person shall emit beyond the boundaries ofhis property any
noise that unreasonably interferes with the enjoyment oflife.
.
.
.“
415 ILCS 5/24.
Similarly,
section 900.102 ofthe PCB’s regulations provides that “no person shall cause or allow the
emission ofsound beyond the boundaries ofhis property..
.
so as to cause noise pollution in
Illinois.
.
.
.“
35
Ill. Adm.
Code 900.102.
These provisions make clear that noise is not a
nuisance until it is emitted beyond LTD’s property.
Thus, LTD has a right to
operate its business
and
emit noise all over its property without creating a nuisance.
These provisions give LTD a
right, if it is ultimately required to
build a noise wall, to
have a property line noise wall.
Both Dr.
Schomer and
Dr. Thunder testified a property line noise wall would be
effective.
(Dr. Paul
Schomer, October
15, 2002,
p.
145; Dr. Tom Thunder, October 15, 2002,
p. 262;
December 9,
2002,
p. 20).
Steve Mitchell testified that he could put a wall “within a foot or so” of LTD’s
north property line.
(Steve Mitchell, October 15, 2002, p. 251).
Dr. Schomer and Dr. Thunder both agreed that a property-line noise wall would have the
added benefit ofblocking noise from LTD’s north parking lot.
(Dr. Paul Schomer, October 15,
2002, p.
196; Dr. Tom Thunder, October
15, 2002,
p. 267).
The problem with a property-line
13
noise wall is that Complainants do not want a property-line noise wall.
At the hearing, LTD’s
attorney made the following statement in his closing argument:
Just in wrapping up, I would state to
Mr. Kaiser and his clients, I think they owe it
to the Pollution Control Board to state whetherthey would agree to a wall on the
north property line
ofthe heights indicated by Dr. Schomer in Exhibits Cl,
2 and
3.
And if they’re not willing to
have a wall on the
north property
line, then they’re
not in this to reduce noise coming to their property.
They’re in it just to try to hurt
LTD.
(December 9, 2002, p.
160).
Complainants did not answer this question in their Closing Brief.
Thus, it is clear they are not interested in a noise wall for abatement purposes but to
exact a
financial penalty from
LTD.
III
Conclusion
Fortunately
for Complainants and LTD, circumstances have changed since February
15,
2001.
As ofthe hearing last October and December, LTD was not operating after 10:00 p.m.
LTD
was not even operating a second shift after October
18, 2002.
Since circumstances have
changed, it would be
inappropriate under section 33(c) to require LTD to
build a noise wall at
any cost.
Moreover, a financial penalty would be
inappropriate since there has been no alleged
nuisance since October
18, 2002.
LTD
Commodities
~
~
Jos~JiE. ~Iolar,one OfIts Attorneys
ATTORNEYS FOR RESPONDENT
BAIZER & KOLAR,
P.C.
513
Central Avenue,
5th
Floor
Highland Park, IL
60035
847-433-6677
847-433-6735 (Fax)
14
CERTIFICATE OF SERVICE
The undersigned attorney certifies that on April 21, 2003, he served the original and nine
copies ofthe foregoing
RESPONDENT LTD COMMODITIES’ CLOSING BRIEF
REGARDiNG APPROPRIATE REMEDIES
by Federal Express upon the Illinois Pollution
Control Board, at the following address:
Ms. Dorothy M. Gunn
Clerk ofthe Illinois Pollution Control Board
100 West Randolph Street
Suite 11-500
Chicago, IL
60601
and one copy by fax and regular mail upon the following person:
Steven P. Kaiser,
Esq.
33
E. Wacker Drive
Suite 1750
Chicago, IL 60601
Fax: 312-782-4519
Jsph
.Kolar
