ILLINOIS POLLUTIO N CONTROL BOARD
November 6, 2003
LYNN ERICKSON,
Complainant,
v.
CHARLESTON CLASSIC HOMES, INC.,
and LAWRENCE E. VAN SOMEREN, JR.,
Respondents.
)
)
)
)
)
)
)
)
)
)
PCB 04-26
(Citizens Enforcement - Noise)
ORDER OF THE BOARD (by T.E. Johnson):
This citizens enforcement action was brought by an individual alleging illegal noise
emissions from a building demolition and construction project. The project is located in
Wheaton, and complainant resides next door. Today the Board accepts the complaint for hearing
and denies respondents’ motion to dismiss. Below, the Board describes the procedural history
before turning to the complaint, the motion to dismiss, and the hearing.
PROCEDURAL HISTORY
On September 2, 2003, complainant Lynn Erickson (Erickson) filed a complaint against
respondents Charleston Classic Homes, Inc. (Charleston) and Lawrence E. Van Someren, Jr.
(Van Someren). Charleston and Van Someren filed a motion to dismiss on September 29, 2003.
Erickson filed a response to the motion on October 16, 2003.
1
COMPLAINT
Erickson alleges that noise from respondents’ building demolition and construction
project violates Sections 23, 24, and 25 of the Environmental Protection Act (Act) (415 ILCS
5/23-25 (2002)) and Sections 900.101 and 900.102 of the Board’s rules (35 Ill. Adm. Code
7
:
0
0
a
.
m.
t
o
5
:
0
0
p
.
m.
e
v
e
r
y
d
a
y
e
x
c
e
p
t
S
u
n
d
a
y
s
,
p
o
u
n
d
i
n
g
a
n
d
e
x
c
e
s
s
i
v
e
b
a
n
g
i
n
g
”
a
p
p
r
o
x
i
ma
t
h
e
n
o
i
s
e
h
a
s
c
a
u
s
e
d
h
e
r
f
a mi
l
y
t
o
l
o
s
e
e
n
j
o
y
m
“
f
o
r
c
e
d
t
o
m
o
v
e
o
u
t
d
u
e
t
o
n
o
i
s
e
.
”
C
h
a
r
e
l
s
t
o
n
a
n
d
V
a
n
S
o
m
e
r
e
n
“
s
t
e
x
p
e
n
s
e
)
.
”
I
d
.
1
The Board cites the complaint as “Comp. at _,” the motion to dismiss as “Mot. at _,” and the
response as “Resp. at _.”
2
Under Section 31(d) of the Act, any person may file a complaint with the Board.
See
415
ILCS 5/3.315, 31(d) (2002); 35 Ill. Adm. Code 103. The Board finds that Erickson’s complaint
meets the content requirements of the Board’s procedural rules.
See
35 Ill. Adm. Code
103.204(c), (f). Section 31(d) of the Act provides that “[u]nless the Board determines that [the]
complaint is duplicative or frivolous, it shall schedule a hearing.” 415 ILCS 5/31(d) (2002);
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. No evidence before the Board
indicates that Erickson’s complaint is duplicative. 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.
Several aspects of Erickson’s complaint are frivolous.
Erickson alleges that respondents violated Sections 23 and 25 of the Act. However, the
former section simply sets forth legislative findings about noise and the latter section merely
authorizes the Board to adopt noise rules. Erickson also alleges a violation of Section 900.101 of
the Board’s noise rules, which only provides definitions of terms used in the rules. Erickson fails
to state a cause of action concerning these provisions because none of them can be violated.
The remaining provisions allegedly violated are Section 24 of the Act and Section
900.102 of the Board’s rules. These provisions constitute the nuisance noise prohibition and can
be violated. These allegations accordingly are not frivolous.
Erickson asks, as an alternative remedy, that the Board order respondents to pay for
Erickson and her family to live elsewhere, away from the alleged noise pollution. Though the
Board can order her requested cease and desist remedy if a violation is proved, the Board lacks
the authority to award damages. The Board therefore strikes Erickson’s alternative request for
relief from the complaint.
Within 30 days after being served with a complaint, a respondent may file a motion to
dismiss the complaint.
See
35 Ill. Adm. Code 101.506, 103.212(b). Charleston and Van
Someren have done so here. The Board now turns to their motion to dismiss.
MOTION TO DISMISS
Charleston and Van Someren move the Board to dismiss Erickson’s complaint, arguing
that their activities are exempt pursuant to Section 901.107(d) of the Board’s noise rules (35 Ill.
Adm. Code 901.107(d)). Mot. at 2. That provision states:
Sections 901.102 through 901.106 inclusive shall not apply to sound emitted from
equipment being used for construction.
Charleston and Van Someren also argue in their motion to dismiss that their demolition
and construction activities have been “normal” and “routine,” attaching an affidavit of a resident
living on the other side of the project site affirming that the “construction activities have not been
disruptive of our family activities.” Mot. at 2, Affidavit of Jean Van Wyk. Respondents also
3
assert that they comply with the Municipal Code of the Village of Naperville, which, according
to respondents, exempts “between the hours of 7:00 a.m. and sunset, noises customarily resulting
from construction work.”
Id
. at 2-3.
The Board notes that Section 901.107(d), by its terms, provides an exemption just from
Sections 901.102 through 901.106 (35 Ill. Adm. Code 901.102-901.106). These sections set
forth only numeric limits on sound emissions, as Erickson notes in her response. Resp. at 1. In
her complaint, Erickson does not allege that respondents have violated any of the numeric limits,
but rather that they have violated the nuisance noise prohibition of Section 24 of the Act and
Section 900.102 of the Board’s rules by unreasonably interfering with the enjoyment of life. The
Board finds that the Section 901.107(d) exemption is therefore inapplicable here. Accordingly,
the Board need not make any ruling on whether the noise complained of comes from “equipment
being used for construction” as provided in Section 901.107(d).
Regarding the additional arguments Charelston and Van Someren make for dismissal, the
Board notes that respondents may introduce evidence in the form of testimony of neighboring
residents, but an affidavit of someone affirming that the noise is not disruptive is not a ground for
dismissal. Nor is the respondents’ purported compliance with a local noise ordinance. The
Board expresses no opinion interpreting the municipal code provision respondents rely upon.
Respondents are free to argue the legal import of the local exemption and introduce related
factual evidence, but the Naperville ordinance does not exempt Charleston and Van Someren
from complying with State law—that is, the prohibition on nuisance noise under Section 24 of
the Act and Section 900.102 of the Board’s rules.
For the reasons above, the Board denies respondents’ motion to dismiss.
HEARING
The Board accepts for hearing Erickson’s complaint, as amended in this order.
See
415
ILCS 5/31(d) (2002); 35 Ill. Adm. Code 103.212(a). 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) (2002). 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.
4
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.
CONCLUSION
The Board denies respondents’ motion to dismiss and accepts Erickson’s complaint, as
modified above, for hearing. A respondent’s failure to file an answer to a complaint within 60
days after receiving the complaint may have severe consequences. Generally, if a respondent
fails within that timeframe to file an answer specifically denying, or asserting insufficient
knowledge to form a belief of, a material allegation in the complaint, the Board will consider
respondent to have admitted the allegation.
See
35 Ill. Adm. Code 103.204(d). Respondents’
timely filing of their motion to dismiss, however, stayed this 60-day period.
See
35 Ill. Adm.
Code 103.204(e). Charleston and Van Someren therefore each have 60 days from their
respective receipt of this order to file an answer.
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 6, 2003, by a vote of 6-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
