ILLINOIS POLLUTION CONTROL BOARD
September 30, 1976
ENVIRONMENTAL PROTECTION AGENCY,
)
Complainant,
v.
)
PCB 75—436
DELIO VALLERA d/b/a THE LIE-BRARY
LOUNGE and CORNELIUS P. MOERBECK,
)
)
Respondents.
Ms. Helga Huber, Assistant Attorney General, appeared for Complainant;
Messrs Cornelius P. Moerbeck and Delio Vallera, Respondents, appeared
pro Se.
OPINION AND ORDER OF THE BOARD (by Mr. Zeitlin):
The Complaint in this matter was filed by the Environmental
Protection Agency (Agency) on November 10, 1975. That Complaint
alleged that Respondent Vallera owned and operated a dram shop known
as The Lie-Brary Lounge, located in a building owned by Respondent
Moerbeck at 5626 West 95th Street in Oak Lawn, Illinois, and that
an air conditioner atop that building was operated, from August 10,
1974 until the filing of the Complaint, in violation of the noise
limitations of Rule 202 of Chapter 8: Noise Pollution, of this
Board’s Rules and Regulations, and therefore in violation of
Section 24 of the Environmental Protection Act (Act). Ill. Rev.
Stat., Ch. 111—1/2, §1024 (1975); Ill. PCB Regs., Ch. 8, Rule 202.
On January 23, 1976 Respondent: Mocrbcck filed a motion to
continue the hearing in this matter until “Spring,” 1976. A hearing
previously scheduled for February 6, 1976 was consequently reclas-
sified as a pre—hearing conference, at which the Hearing Officer
advised Respondents of their responsibilities under the Board’s
Procedural Rules, and made allowance for further noise surveys to
be conducted by Complainant Agency. A hearing was subsequently held
on August 11, 1976. In addition to testimony presented at that
hearing by both Complainant and Respondents, the parties there
submitted a Stipulation of Facts which provides the primary basis
for this Opinion and Order.
23
—
605
—2—
From approximately 1970 through May 1, 1975, Respondent Moerbeci
leased the building in question from prior owners and, after May 1,
1975, owned the building; during the entire period in issue here,
Respondent Moerbeck either subleased or leased the premises of The
Lie—Brary Lounge to Respondent Vallera. Respondent Moerbeck admits
that as owner of the premises, he was responsible for all operation
and maintenance of the air conditioning unit in question, and that
Respondent Vallera had no such responsibility, (see, e.g., Ex. D
to Joint Ex.l lease covering premises). Inasmuch as Complainant
did not object to Respondents’ statements to that effect and did
not object to Respondent Vallera’s request that he be “relieved
immediately of any further responsibility,” which we interpret as
a Motion for Dismissal, Respondent Vallera shall be dismissed.
As to Respondent Moerbeck, the Stipulation of Facts (Joint Ex. 1)
shows that the air conditioner in question did in fact exceed the
noise limits of Rule 202 during the period in question, (~18). Although
the Stipulation of Facts and matters presented by Mr. Moerbeck do
approach the issue of mitigation, the record shows no evidence to
excuse the violation so admitted. We shall accordingly find that
the violations occurred as alleged in the Complaint, and that the
responsibilities for such violations lie with Respondent Moerbeck.
By way of mitigation and aggravation, Respondent Moerbeck
admitted that the Agency notified him of those violations as early
as September, 1974, (R. 6). Mr. Moerbeck also admits that, althoug
shielding was installed around the air conditioner, which did resul
in compliance (see, Ex. L to Joint Ex. 1), those improvements were
not made until 1976. Respondent’s failure to abate those violations
during the 1975 air conditioning season is, however, somewhat miti-
gated by other circumstances. On approximately July 4, 1975, the
air conditioning unit in question was rendered inoperative by several
shotgun blasts through the rooftop condensing unit, (Resp. Ex. 1
photograph). Moerbeck concluded that the shotgun blasts in question
originated from the premises of a neighbor whose complaints had
originally led to the Agency’s investigation of The Lie-Brary Lounge
air conditioner, and he declined to make further improvements in the
air condiLioning sy:~LemunLil after that neighbor fulfilled a previ-
ously announced intention to move away from the site. When that
neighbor moved, noise barriers were erected.
In light of the fact that Respondent has subsequently corrected
the admitted noise violations, and of the facts stated above, we do
not feel that a penalty is appropriate in this case.
This Opinion constitutes the findings of fact and conclusions
of law of the Board in this matter.
23
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606
—3—
ORDER
IT IS THE ORDER OF THE POLLUTION CONTROL BOARD that:
1. Respondent Cornelius P. Moerbeck is found to have operated
an air conditioning unit atop a building at 5626 West 95th Street,
Oak Lawn, Illinois, in violation of Rule 202 of Chapter 8: Noise
Pollution, of the Board’s Rules and Regulations, and Section 24 of
the Illinois Environmental Protection Act.
2. Respondent Delio Vallera d/b/a The Lie-Brary Lounge is
dismissed.
3. Respondent Moerbeck shall henceforth operate said air
conditioning unit such that said violations do not recur.
Chrh;tari h.
Moiiett,
Clerk of the JJ1inoi~
Pol hit
ion
Control Board,
he~eby certify t
e above Opinion and Order we e
adopted on
Llie ~ ~ day of
_____________
1976, by a VoLe
of
Ci~
-
Christan L. Moff~~/J Clerk
Illinois Po11utic~/9’ontro1 Board
23
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607