ILLINOIS POLLUTION CONTROL BOARD
    September 23, 1999
    JAMES R. and LUCILLE J. METZ,
    Complainants,
    v.
    UNITED STATES POSTAL SERVICE
    and BRADLEY REAL ESTATE,
    Respondents.
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    PCB 98-18
    (Enforcement - Citizens, Noise)
    ORDER OF THE BOARD (by G.T. Girard):
    On July 22, 1999, respondent, Bradley Real Estate (Bradley) filed a motion for summary judgment (Bradley
    motion). On August 9, 1999, respondent United States Postal Service also filed a motion for summary judgment
    (USPS motion). Complainants have not filed a response to the motions for summary judgment. Pursuant to the
    Board’s rules at 35 Ill. Adm. Code 103.140(c), failure to respond to a motion means a party is deemed to have
    waived objection to the granting of the motion, but such waiver of objection does not bind the Board in its
    determination. Based on the arguments presented in the motions and the case record, the Board grants, in part,
    both motions for summary judgment and denies, in part, both motions for summary judgment. The hearing
    officer is directed to set this matter for hearing.
    Summary judgment is appropriate when the pleadings, depositions, admissions on file, and affidavits
    disclose there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter
    of law. Dowd & Dowd, Ltd. v. Gleason, 181 Ill. 2d 460, 483, 693 N.E.2d 358, 370 (1998). When ruling on a motion for
    summary judgment, the Board “must consider the pleadings, depositions, and affidavits strictly against the movant
    and in favor of the opposing party.”
    Id
    . Summary judgment “is a drastic means of disposing of litigation,”
    therefore it should be granted only when the movant’s right to the relief “is clear and free from doubt.”
    Id
    ., citing
    Purtill v. Hess , 111 Ill. 2d 229, 240, 489 N.E.2d 867, 871 (1986). However, a party opposing a motion for summary
    judgment may not rest on its pleadings, but must “present a factual basis which would arguably entitle [it] to a
    judgment.” Gauthier v. Westfall , 266 Ill. App. 3d 213, 219, 639 N.E.2d 994, 999 (2d Dist. 1994). For the reasons stated
    below, the Board finds that no genuine issues of fact exist on complainants’ allegation that respondents violated
    Section 23 of the Environmental Protection Act (Act) (415 ILCS 5/23). However, the Board also finds that issues of
    fact still exist as to whether a violation of Section 24 of the Act has occurred.
    Both motions for summary judgment set forth in essence the same arguments, so the Board will not
    discuss them separately except for one issue regarding Bradley
    1
    which will be discussed later. First, both motions
    argue that the allegation that respondents violated Section 23 of the Act should be dismissed. Respondents point
    out that Section 23 of the Act merely recites legislative declaration and provides no substantive rights to the
    complainants. Bradley motion at 4. The Board agrees with the respondents and consistent with our decision in
    Brunson v. MCI Worldcom, Inc. (January 7, 1999), PCB 99-71, we dismiss the portions of the complaint alleging
    violations of Section 23 of the Act.
    Respondents next argue that Section 24 of the Act prohibits emission of sound beyond the boundaries of
    the respondents’ property which unreasonably interferes with the enjoyment of life or any lawful business or
    1
    Bradley argues that sound measurements taken by the Agency’s expert, Mr. Gregory Zak, were not taken
    consistent with the procedures established by regulations (35 Ill Adm. Code 951.105) for taking those
    measurements. They cite to several alleged inconsistencies. Bradley motion at 5-6. However, the actual sound
    measurements are not a part of the record and, accordingly the Board need not address this issue.
    2
    activity in violation of any regulation or standard adopted by the Board. The respondents maintain that based on
    the depositions of the complainants and an Illinois Environmental Protection Agency (Agency) expert, there is no
    genuine issue of material fact and respondents are entitled to judgment as a matter of law. Respondents assert that
    facts of the case clearly demonstrate that there has been no unreasonable interference with complainants’
    enjoyment of life, based on statements made by the complainants in depositions taken by respondents. Bradley
    motion at 6.
    The Board disagrees that the facts clearly demonstrate that there has been no unreasonable interference
    with complainants’ enjoyment of life. The excerpts from the transcripts which have been attached to the motions
    actually demonstrate that there are still issues of fact to be adjudicated. For example, the testimony of
    complainants establishes that the noise did interfere with their enjoyment of life. James Metz testified that the
    noises “that are most bothersome are the intermittent loud noises” which he hears when he is using his backyard.
    USPS motion Exhibit 1 at numbered pages 66-67. Mr. Metz also testifies that “I won’t say it causes us loss of sleep,
    but it wakes us up earlier in the morning.” USPS motion Exhibit 1 numbered page 82. Mrs. Metz also testified as
    to disturbances. Mrs. Metz was asked: “In the complaint also, again, you allege that the sound emissions have
    interfered with your enjoyment of your property?” She answered: “Yes, very much.” USPS motion Exhibit 3 at
    numbered page 18. Mrs. Metz also stated that the noise did interfere in the inside of the house. USPS motion
    Exhibit 3 at numbered page 35. These statements support the alleged violations made in the complaint that the
    noise generated by the loading docks has resulted in an unreasonable interference with the use and enjoyment of
    complainants’ property. Amended complaint at 3. Therefore, the Board finds that genuine issues of material fact
    still exist and summary judgment is not appropriate as to the alleged violations of Section 24 of the Act.
    The motions for summary judgment differ only in that Bradley asserts one additional argument in its
    motion. Bradley maintains that it is merely the lessor of the facility and has not controlled or participated in any
    of the sound emissions identified in the amended complaint. Bradley motion at 14. The Board has already
    determined that Bradley may be responsible for the alleged violations and nothing Bradley has argued in its
    present motion convinces the Board otherwise. See Metz v. USPS and Bradley Real Estate (October 15, 1998), PCB
    98-18.
    In summary, the Board grants the motions for summary judgment as to the allegation of violation of
    Section 23 of the Act. The Board denies the motions for summary judgment as to allegations of violation of Section
    24 of the Act. The Board directs that the hearing officer set this matter for hearing
    IT IS SO ORDERED.
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that the above order was
    adopted on the 23rd day of September 1999 by a vote of 6-0.
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

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