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.

—

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.

—

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 

Ci~

Christan L. Moff~~/J Clerk

Illinois Po11utic~/9’ontro1 Board

—

607