RE CE ~V ED
CLERK’S OFFICE
DEC 2 92003
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD STATE OF ILLINOIS
GINA PATTERMANN
)
Pollution Control Board
Complainant,
PCB 99-187
v.
(Citizen Enforcement,
BOUGHTON TRUCKING AND MATERIALS,
)
INC.
Respondent.
NOTICE OF FILING
To: See Attached Certificate of Service
PLEASE TAKE NOTICE that on the 2gth day of December, 2003, the
undersigned caused to be filed with the Office of the Clerk of the Pollution Control Board
the COMPLAINANT’S MEMORANDUM IN RESPONSE TO RESPONDENT’S MOTION
FOR SUMMARY JUDGMENT, a copy of which is herewith served upon you.
THE JEFF DIVER GROUP, L.L.C.
By: _______________
Michael S. Blazer
Carrie I. Araujo
THE JEFF DIVER GROUP, L.L.C.
1749 S. Naperville Road, Suite #102
Wheaton, IL 60187
(630) 681-2530
THIS FILING SUBMITTED ON RECYCLED PAPER
RECEIVE L3’
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
DEC 2 92003
GINA PATTERMANN
)
)
STATE OF ILLINOIS
Complainant,
PCB 99-187
PollutIon Control Board
V•
(Citizen Enforcement,
BOUGHTON. TRUCKING AND MATERIALS,
Noise & Air)
INC.
)
Respondent.
COMPLAINANT’S MEMORANDUM IN RESPONSE TO
RESPONDEN’T’S MOTION FOR SUMMARY JUDGMENT
Now comes Complainant, Gina Pattermann (“Pattermann”), by her attorneys, and
hereby submits her Memorandum in Response to the Motion of Respondent, Boughton
Trucking and Materials, Inc. (“Boughton”) for Summary Judgment.
I.
BOUGHTON MISSTATES THE APPLICABLE LEGAL STANDARD AND
IMPROPERLY SEEKS TO SHIFT THE BURDEN ON ITS MOTION FOR SUMMARY
JUDGMENT TO PATTERMANN
“The party seeking summary judgment may meet its initial burden of persuasion
by presenting facts which, if uncontradicted, would entitle it to a judgment as a matter of
law.”
Loschen v. Grist Mill Confections, Inc.,
PCB 97-1 74 (Sep. 18, 1997), citing
Estate
of Stewart,
236 lll.App.3d 1, 7-8 (1st Dist. 1991). If the party seeking summary judgment
produces such evidence, then the burden of production shifts to the party opposing the
Motion.
Estate of Stewart,
236 III.App.3d at 8. “In determining the existence of a genuine
issue of material fact, the courts must construe the pleadings, depositions, admissions,
and affidavits strictly against the movant and liberally in favor of the opponent.”
Id.
at 7.
Boughton alleges that Pattermann has failed to establish an “unreasonable
interference with the enjoyment of life or property” in violation of Sections 9(a) or 24 of
the Act and the Board’s corresponding rules. Boughton states that “tjhe question before
THIS FILING SUBMITTED ON RECYCLED PAPER
the Board is not whether the Complainant and her witnesses have experienced noise
and dust, or even whether that noise and dust interferes in their lives.” (Boughton
Motion at 10-11).
Contrary to Boughton’s assertion, this Board must consider whether or not
Pattermann has established the elements of her claims so that Boughton must produce
“uncontradicted facts” entitling it to judgment as a matter of law. If Pattermann has
provided
prima facie
evidence establishing the elements of her claims, which she has,
then it is Boughton’s burd~nto present uncontradicted facts which would entitle
Boughton to judgment as a matter of law.
Estate of Stewart,
236 III. App. 3d at 7-8.
Pattermann has met her initial burden of proof. She, in addition to four other
witnesses, testified to the presence of the noise and dust as well as the resulting
negative impact upon their lives. Boughton, on the other hand, seems to believe that
these claims can be disposed of by performing its own biased Section 33(c) analysis. A
Section 33(c) analysis is inappropriate and premature in the context of summary
judgment. Boughton’s own opinion is irrelevant to meeting its burden. Pattermann “is
not obligated to introduce evidence on each of the Section 33(c) factors.”
Loschen
V.
Grist Mill Confections, Inc.,
PCB 97-174 (Sep. 18, 1997). She “may present facts at
hearing” regarding the Section 33(c) factors.
Loschen v. Grist Mill Confections, Inc.,
PCB 97-1 74 (Sep. 18, 1997). Pattermann intends to present her testimony as well as
that of her witnesses at hearing proving those facts related to Boughton’s noise and
dust emissions.
Boughton also seeks to usurp this Board’s adjudicative function. In support of its
Motion, Boughton parses deposition testimony and presents it in a slanted manner.
Based on its own view of the facts, Boughton claims that it is entitled to summary
3
THIS FILING SUBMITTED ON RECYCLED PAPER
judgment because it “finds” the noise and dust emissions to be reasonable under its
reading of Section 33(c). Boughton is not the fact-finder here nor is Boughton’s
weighing of the Section 33(c) factor’s relevant evidence of a lack of a genuine material
issue.1
On September 23, 1999, this Board determined that Pattermann properly alleged
air and noise violations of the Act and the Board’s rules. This Board also found that
Pattermann’s pleadings were specific. Boughton must now meet its initial burden of
persuasion by evidencing ~ ~ick of genuine issues of material fact or presenting
“uncontradicted facts” establishing that it is entitled to judgment as a matter of law. Only
after Boughton has met this burden does the burden of production shift to Pattermann to
contradict those facts.
II.
BOUGHTON HAS NOT MET ITS INITIAL BURDEN
Boughton relies on its interpretation of the deposition testimony in light of the
Section 33(c) analysis. As discussed above, a Section 33(c) analysis is inappropriate
and premature in the context of a motion for summary judgment. Nevertheless,
Boughton has parsed the witnesses’ deposition transcripts in its effort to establish that
its noise and dust emissions are not unreasonably interfering with its neighbors’
enjoyment of their life or property. This fails to meet Boughton’s initial burden in three
respects. First, Boughton does not deny that dust and noise emissions are in fact
occurring. Rather, Boughton focuses only on the “reasonableness” of those emissions
in the context of Section 33(c). Boughton appears to argue that the interference with
Pattermann’s life and the enjoyment of her home (and those of her neighbors) resulting
1
Boughton’s reliance on
Charter Hall v. Overland,
FOB 98-81 (Oct. 1, 1998) and
Kvatsak
V.
St.
Michael’s Lutheran Church,
FOB 89-182 (Aug. 30, 1990) is misplaced. In each of those cases, the
Section
33(c) analysis took place after the hearing and not upon summary judgment.
4
THIS FILING SUBMITTED ON RECYCLED PAPER
from the dust and noise emissions is “reasonable”. Whether or not the interference is in
fact “unreasonable”, however, is a question of fact appropriately decided after the
hearing where Pattermann may present her case, especially those facts relating to the
Section 33(c) factors.
Loschen,
PCB 97-1 74 (Sep. 18, 1997).
Further, “Summary judgment may only be granted where the facts are capable of
only one reasonable inference”.
Estate of Stewart,
236 III. App. 3d at 12. In its effort to
meet this burden, Boughton presents a selective interpretation of testimony along with
its bare conclusion of “reasonableness”. In contrast to Boughton’s interpretation,
however, the witnesses’ deposition testimony establishes that the noise and dust
emissions interfere with their lives and the enjoyment of their homes. (See Section lB.,
infra)
On the whOle, Boughton ignores its burden and focuses on the Section 33(c)
“reasonability analysis”. That analysis, biased as it is, does not assist Boughton in
meeting its initial burden.
Finally, “In determining the existence of a genuine issue of material fact, the
courts must construe the pleadings, depositions, admissions, and affidavits strictly
against the movant and liberally in favor of the opponent.”
Estate of Stewart,
236 III.
App. 3d at 7. Boughton is not entitled to the presumption of a “reasonable” interference.
The testimony of the witnesses must be construed liberally in Pattermann’s favor.
In this regard, the witnesses testified to the noise and dust emissions and its
interference with their lives. Whether or not Boughton disagrees with the witnesses’
assessments of the extent of the impacts of Boughton’s polluting activities is irrelevant.
Pattermann is entitled to present her case, at hearing, showing that the noise and dust
emissions substantially interfered with the enjoyment of life and property and, as such,
THIS FILING SUBMITTED ON RECYCLED PAPER
were violations of the Act. Again, it is improper to weigh the Section 33(c) factors before
hearing.
Loschen v. Grist Mill Confections, Inc.,
PCB 97-174 (Sep. 18, 1997).
A.
Boughton Has Not Met Its Burden Of Demonstrating That Pattermann Has
Failed To Establish A Violation Of The Act Or Board Regulation
Boughton asserts that Pattermann did not produce any “objective” evidence
supporting ~jj.y of her claims. (Boughton Motion at 5). Boughton is wrong. Pattermann,
as evidenced by Boughton’s own Motion, produced five witnesses, photographs and
evidence of the stress and discomfort caused by Boughton’s air and noise pollution.
(Boughton Motion at attachments 4, 7, 8, 9, 10, and 11). The testimony of the five
witnesses (Pattermann, William Jene, Carlene Jenkins, Lisa Collins and Donald
Boudreau) evidences the existence of noise and dust emissions as well as the
substantial interference caused in their daily lives. It is well-settled that this type of
evidence is sufficient to not only withstand a motion for summary judgment but to prevail
at hearing. “The testimony of private citizens, as opposed to that of experts, is sufficient
to sustain a finding that there was a violation of the Act.”
Hillside Stone Corporation v.
Illinois Pollution Control Board,
43 lll.App.3d 158, 162 (ist Dist. 1976), citing
Sangamo
Construction Co. v. Pollution Control Board,
27 lIl.App.3d 949 955 (4th Dist. 1975).
In addition, Boughton itself has produced, in its Supplementary Discovery
Response dated April 3, 2003, a document entitled “Boughton Trucking Noise Survey
Notes” dated March 29, 2000 (“Survey Notes”) (A copy of the Survey Notes is attached
hereto as Exhibit A). The Survey Notes reflect a test of sounds emitted from Boughton’s
quarry from various River Run properties. In Section 4.0, titled “Conclusions and
Recommendations”, the author confirms that “nlighttime limits cannot be met by the
existing plant configuration along Baybrook Lane or Sebastion Court.” Also, “the
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THIS FILING SUBMITTED ON RECYCLED PAPER~
nighttime limit along Esquire Circle (and west to the swim club) is barley sic being met.
However, the nighttime limit will almost certainly be exceeded when the leaves are off
the trees.” The Survey Notes further acknowledge that, “The most prominent audible
sounds were backup alarms (although they did not appear to affect the meter readings)
and truck dumps at the primary (which did affect the readings). The screening plant
sound
Therealone
doesis
nonotdoubtappearthatto Boughtonexceed
daytimewas
emittinglimits,
althoughnoise
audibleit
is quitetonoticeable.”surrounding2
homeowners which may viol~tethe Act. Whether or not Boughton can ultimately prove
that it has complied with its permit or this Board’s regulations does not mean that
Boughton has not violated the Act.
Loschen v. Grist Mill Confections, Inc.,
PCB 97-1 74
(Sep. 18, 1997).
B.
Boughton Is Not Entitled to Summary Judgment Since Material Issues of
Fact Exist Relating to the Impact Of The Dust and Noise Emissions
Boughton’s primary argument is that Pattermann has failed to produce “objective”
evidence supporting her claims that Boughton’s quarry emits noise and dust pollution
which unreasonably interferes with her enjoyment of her life and property. (Boughton
Motion at 5). As noted above, testimony of private citizens is sufficient to sustain a
finding that there was a violation of the Act.
Hillside Stone Corporation,
43 Ill. App. 3d at
162. The testimony of the witnesses establishes, at a minimum, that material issues of
fact regarding the severity and “reasonableness” of Boughton’s pollution preclude
summary judgment.
2
It is noteworthy that Boughton did not produce this document, created a full year prior, in its July
23, 2001 response to Pattermann’s Interrogatories (See Boughton Motion at Attachment 5, page 13-14).
Nor did Boughton alert Pattermann to the document’s existence by specifically claiming privilege so that
the matter could be contested. The document was not produced until April, 2003. Further, the report
appears to be the notes for a survey prepared by the principal engineer of MACTEC Engineering and
Consulting. The final survey, however, was not produced to Pattermann. (See Exhibit B hereto).
7
THIS FILING SUBMITTED ON RECYCLED PAPER
1.
Dust Complaints
Section 9(a)
of
the Act prohibits the emission of any “contaminant” so as to cause
“air pollution”, “either alone or in combination from other sources”.
415 ILCS 5/9(a)
(2003). In order to establish
a violation
of Section 9(a), Pattermann must show that:
1)
There was an emission of dust.
2)
The emission was caused or contributed to by Boughton.
3)
The dust resulted in either (a) injury to health or (b) interference
with the enjoyment of life or property.
4)
The injury or the interference was unreasonable according to the
criteria at Section 33(c) of the Act. (415 ILCS 5/33(c) (2003).
See
Glasgow v. Granite City Steel,
PCB 00-221, 2002 WL 392181 (March 7, 2001),
citing
Gott v. M’Orr Pork,
PCB 96-68, Slip. Op. at 12 (Feb. 20, 1997).
As noted above, Pattermann produced five witnesses, herself included, who
resided near the Boughton quarry. Each witness, in depositions attached to Boughton’s
Motion (Boughton Motion at attachments 7,8,9,10, and 11), testified as to the presence
of dust as well as its interference with the enjoyment of life or property. Boughton
mischaracterizes, summarizes or removes the context of the testimony to support a
biased presentation and diminish its impact.
Despite the evidence in the record, Boughton concludes that the level of dust is
“minor”, not unlike that experienced by people living in Metropolitan Chicago areas or
located next to highways, etc., or that it is not unusual for people who live next to two
quarries. (Boughton Motion at 25). Irrespective of Boughton’s selective quotation,
“summarization” and “interpretation” of the testimony, each of the witnesses in fact
contradicts Boughton’s characterization of the dust emissions.
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Lisa Collins testified that the dust was an issue which led her to sell her house
and move from the River Run property. (Boughton Motion at attachment 10, p. 17). Ms.
Collins specifically testified to the following:
1)
“I had black granite countertops, and I would wipe them down in
the morning and by afternoon they would have a nice little coating
of dust on them again.” (Boughton Motion at attachment 10, p. 29).
2)
“I never had that kind of dust in any other home.” (Boughton Motion,
at attachinent 10, p. 30).
3)
“Where I’m living right now, I’ve got construction all around me, and
I don’t have that dust problem. So I would still believe that the dust
came from the quarry. It was very heavy, and it wasn’t like clay
dirt.” (Boughton Motion at attachment 10, p. 30).
4)
“It was more of a light powdery type dust.” (Boughton Motion at
attachment 10, p. 30).
5)
As to alleviation measures, “Just wiping it up , that’s really all you
could do or leave the windows closed.” (Boughton Motion at
attachment 10, p. 30-31).
6)
“I would say the dust issue was simply more of a cosmetic issue,
you know, my furniture, the floor, you know, if you walked around
with your socks you would get dust.” (Boughton Motion at
attachment 10, p. 32).
As noted, Ms. Collins stated that the dust issue was a reason why she sold her
house and moved away. No amount of “interpretation” can diminish the conclusion that
9
THIS FILING SUBMITTED ON RECYCLED PAPER
such a drastic result establishes a substantial interference with her enjoyment of her
home. ~
Donald Boudreau testified as to the presence of dust and its impact upon his life:
1)
“My wife is very concerned about the dust, and I can speak
secondhand, but I have seen a cloud of dust on occasion, but I
hear complaints from my wife about the dust.” (Boughton Motion at
attachment 11, p. 40-41).
2)
“I’ve see’~ia cloud of dust from this golf course. It drifted over the
road, and it was a very heavy cloud of dust.” (Boughton Motion at
attachment 11, p. 41).
3)
“...l see the dust. Just walking in the yard you get it on your
shoes?” (Boughton Motion at attachment 11, p. 42).
4)
As to whether the dust is unreasonable: “Yes, I think it is because
just the other day a neighbor informed me that they were driving
down our street on Baybrook Lane in the middle of the day, and
they had to roll up their windows because the dust was so thick on
our street. I think that’s unreasonable.” (Boughton Motion at
attachment 11, p. 42-43).
5)
Mr. Boudreau has dust when the windows are closed. (Boughton
Motion at attachment 11, p. 43).
7)
The dust comes into his home “through the normal traffic of our
doors being open.” (Boughton Motion at attachment 11, p. 43).
Boughton characterizes Ms. Collins’ testimony as stating that “the dust did not require her to seal
her windows or pressure wash her house.” (Boughton Motion at 23). This is a mischaracterization. Ms.
Collins actually stated, in response to the pressure washing question, that “it might have needed it, but we
never did it.” (Boughton Motion at attachment 10, p.31).
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8)
“lf we don’t dust our house for two to three days, we’ll have a film
of dust on our dining room table which is—we’ve lived in three
different houses in different parts of the country and have not
experienced such a high level of dust in the home. It’s unusual.”
(Boughton Motion at attachment 11, p. 44).
9)
“We don’t open the windows because the dust is too great. My wife
doesn’t allow us to open the windows.” (Boughton Motion at
attachment 11, p. 44).
10)
They keep the windows closed in the spring and summer in the
front and back of the house. (Boughton Motion at attachment 11, p.
44-45).
11)
“Well our windows remain dirty. I can’t say that I can afford to have
people wash my windows like other neighbors I have, however they
remain dirty so I can’t say that we have them washed regularly.”
(Boughton Motion at attachment 11, p. 60).
Boughton next mischaracterizes William Jene’s testimony:
1)
“Most of the major dust problems come of occurs in the drier times
of the year that you can identify, and of course that’s the time of
year that we are outside. The summertime, you can’t open your
windows for fear that you will have dust throughout the entire house
within minutes.” (Boughton Motion at attachment 8, p. 37).
2)
Boughton states that Mr. Jene “could not provide any particular
dust problems he experienced which were associated with
blasting”.
(Boughton
Motion
at 24).
Contrary the this
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characterization, the questions and answers to which Boughton
refers relate to a specific date of the blasting, not the resulting dust
problems. (Boughton Motion at attachment 8, p. 37).
3)
Mr. Jene does not notice a difference in the amounts of dust in
regards to any mitigation measures Boughton may have taken.
(Boughton Motion at attachment 8, p. 39-41).
4)
“. . .1 would assume that because the Boughton Quarry is closer,
that you’I~egoing to have more dust from Boughton than you are
from Vulcan.” (Boughton Motion at attachment 8, p. 26).
Carlene Jenkins, who does not use her backyard because of the dust (Boughton
Motion at attachment 9, p. 38), testified as follows:
1)
“The concern that I have about inhaling the dust which, no, I can’t
differentiate dust from one place or another, but I would say I’m 99
percent sure that the quarry is emanating dust that we are
breathing in, and I worry about that. I worry about that not only for
me but for my daughter especially. I fear that she may have
allergies or asthma down the road.” (Boughton Motion at
attachment 9, p. 38).
2)
“We don’t use our backyard that we would like to because of the
activity going on behind our lot and also because it’s just filthy. It’s
filthy.” (Boughton Motion at attachment 9, p. 38).
3)
Responding to a question about specific occasions or significant
amounts of dust, Ms. Jenkins stated, “I think it’s just a consistent —
it seems to be a consistent level. There aren’t like big clouds of dust
12
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that come over our property. It’s just the consistent grinding and
blasting, I’m sure — I’m not an expert, but I would tend to believe
are what’s causing the dust on our property and the structural
things that are happening within our house.” (Boughton Motion at
attachment 9, p. 39).
4)
The dust, along with her other testimony, are pretty serious
impacts. (Boughton Motion at attachment 9, p. 40).
5)
Ms. Jenkins has expressed concerns over the dust and noise,
(Boughton Motion at attachment 9, p. 35).
6)
Ms. Jenkins has not noticed any decrease in dust emissions from
the quarry as a result of the mitigation measures they have
employed in the last two years. (Boughton Motion at attachment 9,
p. 36).
Boughton next mischaracterizes and misstates the testimony and evidence
supplied by Pattermann. Boughton states that, “Gina Pattermann stated that the dust
from blasting was not a big problem for her. She was more concerned about process
dust.” (Boughton Motion at 24). In contrast to Boughton’s summary, Pattermann testified
to coming home and viewing a cloud of dust that appeared to be generated by the
quarry. (Boughton Motion at attachment 7, p. 69). Boughton’s attorney then asked if
Pattermann thinks the dust “is not only being generated in the blasting, but is also being
generated in the operations”. Pattermann replied, “Absolutely.” (Boughton Motion at
attachment 7, p. 70). Nowhere in the pages cited by Boughton does Pattermann ever
state that the dust associated with the blasting is “not a big problem for her.” (Boughton
Motion at 24).
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On the same subject, in her response to Boughton’s First Set of lnterrogatories,
Pattermann stated:
Respondent has polluted the air by releasing dust into the air
on a regular basis in large quantities. This dust is visible to
the eye. This dust is also visible inside my home most days
when Boughton is operating and I open my windows or
doors. The dust accumulates on the furniture, kitchen and
bathroom counters, tables, etc. The dust also accumulates
on the screens. I do not keep screens on my home any
longer because the dust settles on the screens and it is not
possible to see clearly outside. I rarely open my windows
when respondent is operating because of that dust.
(Boughton Motion at attachment 2, p. 1). Pattermann further stated, “I cannot open my
doors and windows. I rarely ever turned the air conditioner on in my previous houses. I
love fresh air. Now I have no choice but to be closed in my house six days per week. I
rarely get to enjoy my beautiful yard. For relaxation, I have always gardened in the past.
I can no longer garden without listening to banging and crashing all day as well as
getting covered in grit.” (Boughton Motion at attachment 2, p. 2). Finally, in her
responses to Boughton’s First Set of Document Requests, Pattermann produced ten
photographs, dated August 3, 1998, illustrating the clouds of dust as well as
photographs of the same locations without the clouds of dust. (Boughton Motion at
attachment 4).
Each of the witnesses complains of the dust emissions. Several witnesses do not
use their backyards because of the dust. Several witnesses had their activities, such as
gardening or children playing, curtailed because of the dust. Ms. Collins moved, in part,
because of the dust. At least one resident has expressed concerns over the possible
health implications to children of such a large quantity of dust. Several witnesses stated
that the dust has caused them additional household work and expense. The evidence in
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the record amply supports a finding that the dust emissions interfere with the witnesses’
enjoyment of their life or property. At a minimum, Boughton has not met its burden and
there remains an issue of material fact regarding a violation of Section 9(a) of the Act
and whether that violation substantially interferes with Pattermann’s enjoyment of her
life and property.
2.
Noise Complaints
Section 24 of the Act prohibits emitting noise beyond one’s property which
unreasonably interferes with~theenjoyment of life in violation of the Board’s rules or
standards.
Kvatsak v. St. Michael’s Lutheran Church,
PCB 89-182, 1990 WL 158048
(Aug. 30, 1990). Appropriate evidence would include testimony describing the noise;
explaining the type and severity of the interference caused by the noise; and indicating
the frequency and duration of the interference.
Kvatsak v. St. Michael’s Lutheran
Church,
PCB 89-1 82, 1990 WL 158048 (Aug. 30, 1990), citing
Ferndale Heights Utilities
Company v. Illinois Pollution Control Board,
41 lIl.App.3d 962 (Ist Dist. 1976).
Boughton attempts to distinguish the noises emitted from its quarry as blasting
noise and process and vehicle noise. This effort is irrelevant. There is no basis for
distinguishing the noises to determine if there exists a genuine issue of material fact that
the noises complained of violate the Act. For the purposes of this response, therefor,
Pattermann will not distinguish between the two types.
It is appropriate at the outset to point out a misstatement in Boughton’s Motion.
First, Boughton states that “Carla Jenkins sic stated in deposition that the noise from
the blasts woke her daughter...” (Boughton Motion at 12). Boughton then summarizes
that statement so as to “center around the ground vibration associated with the blast
rather than the noise.” (Boughton Motion at 12-13). While the witness may have testified
15
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as to ground vibration, this does not detract from her specific testimony regarding the
noise of blasting.
Pattermann and her witnesses described the noise; the type and severity of the
interference caused by the noise; and the frequency and duration of the interference.
Examples of that testimony include:
a.
Carlene Jenkins:
1)
“lt sounded as if a train might be going or grinding, loud trucks.”
(Boughtd~nMotion at attachment 9, p. 17).
2)
“There’s definitely more noise with trucks going back and forth
every day, and I guess that’s it, just the trucks going back and
forth.” (Boughton Motion at attachment 9, p. 20).
3)
The noise has gotten significantly more intense. (Boughton Motion
at attachment 9, p. 20).
4)
The blasts are more intense despite mitigation measures.
(Boughton Motion at attachment 9, p. 27).
5)
A repetitive beeping like that of trucks or equipment in reverse and
grinding. (Boughton Motion at attachment 9, p. 29).
6)
The blast noise which wakes her daughter. (Boughton Motion at
attachment 9, p. 38).
7)
The consistent grinding and blasting. (Boughton Motion at
attachment 9, p. 39).
b.
William B. Jene:
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1)
“I had never heard a blast from the quarry until after I was in
construction of the property.” (Boughton Motion at attachment 8, p.
21).
2)
“I knew about the noise factor just from me being there.” (Boughton
Motion at attachment 8, p. 22).
3)
Noises from “the conveyor and the excessive beeping.” (Boughton
Motion at attachment 8, p. 22).
4)
Mr. Jen& has contacted the IEPA three or four times over the last
three years and most of the conversations were on Boughton
regarding the noise and dust. (Boughton Motion at attachment 8, p.
25-26).
5)
Mr. Jene has heard blast noise on his property. (Boughton Motion
at attachment 8, p. 33)4
6)
Mr. Jene has heard and been able to identify noises from the
conveyor belt, the dumping, and blasting. (Boughton Motion at
attachment 8, p. 34).
c.
Donald Boudreau:
1)
Mr. Boudreau testified as to “tjhe roar of the — I don’t know what it
is, the shaker or some type of sorting device they have over there.”
(Boughton Motion at attachment 11, p. 14).
Boughton appears to use this portion of Mr. Jene’s testimony to leap to the conclusion that he
could not recall any specific instance in which he heard a blast that was troublesome to him. (Boughton
Motion at 13). On the contrary, Mr. Jene stated, “That I can say I was sitting there and that I can pinpoint
the exact day? No.” (Boughton Motion at attachment 8, p. 33-34).
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2)
“. . .1 didn’t consider the noise an issue during the first couple of
years we were here. However, recently the noise has gotten — it is
apparently louder.. .“ (Boughton Motion at attachment 11, p. 23-24).
3)
“A steady roar, kind of a rattling consistent noise” heard every day
but Sunday. (Boughton Motion at attachment 11, p. 32).
4)
Mr. Boudreau hears the noise “especially at lunchtime when I come
home for lunch it’s extremely loud. I would say that I’ve heard it
much eallier before 7:00 o’clock in the morning as well. “(Boughton
Motion at attachment 11, p. 33).
5)
As to whether or not the noise is emitted from Boughton, “I’ve
investigated through my neighborhood walking down the street to
identify where this noise was coming from, whether it was this
quarry or this quarry, because they are quite a ways apart from
where I am because I’m directly across from Boughton.” (Boughton
Motion at attachment 11, p. 3 3-34).
6)
...“l hear the noise at 7:00 am. because it wakes my kids up
sometimes.” (Boughton Motion at attachment 11, p. 36).
7)
Mr. Boudreau testified that the noise is consistently there but is
really loud two days a week and that the wind can make a
difference depending upon its direction. (Boughton Motion at
attachment 11, p. 36-37).
8)
Mr. Boudreau investigated filing a complaint with the IEPA
regarding the noise at Boughton but found this suit had already
been initiated. (Boughton Motion at attachment 11, p. 39).
18
THIS FILING SUBMITTED ON RECYCLED PAPER
9)
Mr. Boudreau testified as to hearing what he presumes are the
back-up beeper noises from the trucks. (Boughton Motion at
attachment 11, p. 40).
10)
Mr. Boudreau testified he can hear the noise (the beeping and the
shaking) from the inside of a portion of his home; it wakes his
children because their bedrooms are on that side of the house, and
you can hear it clearly in the mornings with the windows closed
despite having double-pane windows. (Boughton Motion at
attachment 11, p. 45-46).~
11)
“I think it’s of note that we have difficulty communicating from one
side of the street to the other side of the street when this shaker
noise is occurring. In other words, I can’t talk to my neighbor across
the street without yelling, and I think that infers a significant level of
noise that I think is unwieldy.” (Boughton Motion at attachment 11,
p. 60).
d.
Lisa Collins:
1)
Ms. Collins sold her house and moved, in part, because of the
noise. (Boughton Motion at attachment 10, p. 17).
2)
One of her reasons for moving was “I just like to be outside
gardening, and the noise bothered me. I felt like I wasn’t in a
natural environment, It felt like being in a big city because I could
Boughton again mischaracterizes the testimony of the witnesses. First, Boughton claims that Mr.
Boudreau “thinks it would interfere with watching television if he had a T.V. on that side of the house.”
(Boughton Motion at 16). Mr. Boudreau said no such thing in his deposition. (Boughton Motion at
attachment 11, p. 45). Second, Boughton states Mr. Boudreau has taken no measures to soundproof his
house, completely ignoring the fact that he in fact stated he has double-paned windows as soundproofing.
(Boughton Motion at 16).
19
THIS FILING SUBMITTED ON RECYCLED PAPER
hear the conveyer belts and trucks beeping, and I just didn’t like it.
It took away the enjoyment for me.” (Boughton Motion at
attachment 10, p. 18).6
3)
Ms. Collins testified as to crashing rocks and back-up beepers that
bothered her. (Boughton Motion at attachment 11, p. 18-19).
4)
Ms. Collins testified that she complained to neighbors “that we can’t
stand the noise”. (Boughton Motion at attachment 11, p. 26).
5)
Ms. Collins, prior to moving, had been a plaintiff in this suit.
(Boughton Motion at attachment 11, p. 27-28).
6)
Ms. Collins testified that she heard the blasting noises and they
were annoying. (Boughton Motion at attachment 11, p. 28).
Pattermann has herself provided ample evidence regarding the noise emitted
from Boughton’s quarry. Aside from her testimony at deposition, Pattermann also
responded to Boughton’s interrogatories. Boughton’s summary of Pattermann’s
evidence is especially noteworthy in two respects. First, Boughton’s asserts that
Pattermann is “casual” in pursuing her claims, although Boughton does not provide any
legal, statutory or administrative basis for the relevance of this assertion. Boughton then
leaps to the conclusion that Pattermann’s “casual” actions “are not the actions of
someone who is experiencing an ‘unreasonable interference with the enjoyment of life’.”
(Boughton Motion at 23). Boughton’s irrelevant speculation does not establish the
6
Again, Boughton attempts to diminish the testimony that the Boughton noise and dust issues
forced Ms. Collins to move by blaming Pattermann, since Fattermann’s husband sold the Collins a lot.
This is completely outside of the requirements for Boughton’s burden of proof and is inserted solely to
place Pattermann in a defamatory light. More to the point, Boughton’s effort is not supported by the
record. Pattermann testified that the Collins moved in before the Fattermanns. (Boughton Motion at
attachment 7, p. 16). Further, upon discovering the noise and dust issues, the Pattermanns declined to
develop any more lots at River Run and even returned a lot. (Boughton Motion at attachment 7, p. 17-18).
20
THIS FILING SUBMITTED ON RECYCLED PAPER
absence of a genuine issue of material fact nor does it assist Boughton in meeting its
initial burden. In any event, Pattermann has been pursuing this claim formally since
June 1999 and informally since 1997. (Boughton Motion at attachment 7, p. 37).
Boughton next asserts that Pattermann admits that the operations at the
Boughton plant have not changed since she has moved there and that the blasting and
excavating have moved to the east. (Boughton Motion at 21). The deposition transcript
is at best unclear on this point as it appears that both Boughton’s attorney and
Pattermann were having diffitulty reading the map. (Boughton Motion at attachment 7,
p. 51-53). Again, these arguments do not assist Boughton in meeting its burden.
Pattermann stated in her response to Boughton’s First Set of Interrogatories that
Boughton:
Cjontinuously creates noise that unreasonably interferes
with the enjoyment of life on my property on a regular and
ongoing basis. Every morning between 5:30 a.m. and 6:30
a.m., Monday through Saturday, the respondents begin
operating their very noisy equipment waking me and my
family. Respondent operates the equipment until late
afternoon. The equipment is loud enough that it prevents me
from using my backyard for normal purposes such as
children playing and hosting parties. If the children are
playing while the respondent is operating, on most days,
they cannot hear me speaking to them from the deck
attached to the rear of the home. I cannot open my windows
or doors or hold normal conversations inside my home while
respondent is operating their equipment. I cannot hold a
conversation with her neighbors while standing in the
driveway unless we shout. The respondent also uses
blasting devices several times a week. This blasting wakes
the children from their naps on a regular basis. In the
autumn, the respondent allows a local group of hunters to
use their property to hunt. Sunday is the only day that
respondent does not operate their quarrying equipment but I
am awaken by the sound of rifle shots at the edge of my
property line.
(Boughton Motion at attachment 2, p. 1).
21
THIS FILING SUBMITTED ON RECYCLED PAPER
Pattermann further testified in her deposition as follows:
1)
Boughton’s sound-proofing berm is not placed between the rear of
her home and the Boughton quarry. (Boughton Motion at
attachment 7, p. 28-29).~
2)
The noises she originally complained of in 1997 were the blasting
noises and the general operations noises. (Boughton Motion at
attachment 7, p. 37).
3)
Pattermábn’s home is the closest to the Boughton plant. (Boughton
Motion at attachment 7, p. 55).
4)
Pattermann can distinguish between the noise of a truck dumping
and back-up beepers as well as several noises she cannot describe
but attempted to demonstrate. (Boughton Motion at attachment 7,
p.56).
5)
The noise goes on all day long, it is “pretty much the same all year
long” and it varies most with wind direction. (Boughton Motion at
attachment 7, p. 56).
6)
“If it’s a real windy day it’s louder. If it’s less windy, it’s softer, unless
the winds are coming straight out of the east, which they rarely do,
Boughton attempts to evade this fact by claiming that Pattermann “admits to the presence of the
berm and the 25 acres of undeveloped property between the east side of her property and Boughton’s
operations, but claims they have no impact on reducing sound levels on her property.” (Boughton Motion
at 22). The berm does not extend between some of Boughton’s operational facilities and Fattermann’s
home despite the fact that the two properties are directly opposite each other. (Boughton Motion at
attachment 7, p. 31-32).
22
THIS FILING SUBMITTED ON RECYCLED PAPER
then its really loud. If it’s cloudy it’s usually louder.” (Boughton
Motion at attachment 7, p.
57)~8
7)
If the wind is traveling in a direction from the plant to her home, “it is
ridiculously loud”. (Boughton Motion at attachment 7, p. 57).
8)
When asked about “specific dates” when she was particularly
bothered, Ms. Patttermann replied, “Not really. It’s pretty
consistent.” (Boughton Motion at attachment 7, p. 58).
9)
Blast ndise is not affected by the wind. (Boughton Motion at
attachment 7, p. 68).
10)
Pattermann can distinguish the source of noises from the Vulcan
quarry and the Boughton quarry. (Boughton Motion at attachment
7, p. 76-77).
11)
Pattermann believes she hears ~trucks,engines, back-up beepers,
and possibly equipment as early as 5:30 a.m. to 6:00 a.m.
(Boughton Motion at attachment 7, p. 73-74).
12)
Pattermann stated “...when I wake up in the morning, if it’s the first
one that they are dumping in there, that’s when I hear what’s going
on there more than any other time because I have five kids and it
gets incredibly noisy in my house later in the day.” (Boughton
Motion at attachment 7, p. 104).~
8
Pattermann acknowledges that she is guessing about the various wind directions and what the
prevailing winds are at her home, since she is not a meteorologist. (Boughton Motion at attachment 7, p.
57).
This is yet another example of how Boughton has taken a witness’ testimony out of context.
Pattermann, as quoted above, said she hears the noise more in the morning and gave an explanation for
why she hears it less later in the day (her five children). The fact that Pattermann’s home is noisy due to
23
THIS FILING SUBMITTED ON RECYCLED PAPER
Finally, Boughton’s own Survey Notes state that on July 7, 1999, starting at 6:35
am., the engineer could hear the plant running, including back-up alarms, and the
occasional truck dump. (Exhibit A, p. 1-2). At another point, the engineer reported that
the sound of the screening plant was noticeable. At a third location, the plant was
“noticeably louder” and sounds could be distinguished as back-up alarms, truck dumps,
vibrating screens, and trucks/loader engines at full power. Finally, the engineer reported
hearing “the occasional loader dumping muck into a haul truck”. (Exhibit A, p. 2).
In summary, each of the witnesses testified to the type of noise, the severity of
the noise and the interference it causes. The noises have been described as: “blasting”,
“a whoosh”; “rifle shots”; “crushing rocks”; “beepers”; “conveyor belts”; “shaking”; “loud
trucks”; “grinding”; a “steady roar”; and “a rattling”. Some witnesses complain the noise
is “loud”, “really loud” or “ridiculously loud”. Several witnesses testified that the noise
has gotten “more intense”. The noises are audible in their homes. It prevents
conversations in places where they could normally be carried. It wakes people and their
children. It is continuous. The noise, likely depending upon the wind and the location, is
consistently loud.
Five witnesses gave testimony that is more than adequate to establish the
elements of Pattermann’s noise claim. Not one witness testifies that there is no noise or
that it does not cause some level of discomfort or interference. Boughton, despite its
“interpretations”, has not established the absence of a genuine issue of material fact.
her children does not assist Boughton in meeting its initial burden of proving that there is no genuine
issue of material fact regarding the fact and impacts of the pollution it creates.
24
THIS FILING SUBMITTED ON RECYCLED PAPER
Ill.
CONCLUSION
The Section 33(c) analysis should be conducted by this Board after a hearing,
not by Boughton in its interpretive effort to obtain summary disposition. For all of the
foregoing reasons, Boughton’s Motion for Summary Judgment should be denied.
Respecifully submitted,
The Jeff Diver Group, L.L.C.
By: _____________________________
One of the attorneys for
Complainant
Michael S. Blazer
Carrie I. Araujo
The Jeff Diver Group, L.L.C.
1749 5. Naperville Road
Suite 102
Wheaton, IL 60187
630-681-2530
25
THIS FILING SUBMITTED ON RECYCLED PAPER
For PFS
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*
Pg 214
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Nfl
3~2003 1O:S3MA
hkRDlllG ESE
.
NO, 1356
PRIVIUIGED AND
CONFIDENUAL
ATTORNEY
CLIENT WORK
PRODUCE
Boughton Trucking Noise Survey Notes
1.0
Protocol
IEPA noise pollution regulations are written with referenceto allowable octave band sound
pressure levels, and measured based on Leq averaging and a referencetime of one hour. While
an acoust:c consultant and elaborate test equipment is generallyrequired to take These detailed
readings, JEPA recommends an alternative, less expensive method as arough compliance cheek.
Greg Zak,
JEPA
Noise Pollution Control (217-785-7726), suggested
the
following protocol for
compliance testing:
1.
Purchase a Radio Shack Sound Level Meter (either digital or aiialog). His experience
when testing the Chinesemanufactured Radio
Shack
units is that they are accurate to
within 1 dB.
2.
When preparing to takereadings ±brcompliance verification., set the unit to
“A”
weighting and“slow” response.
3.
Because there is no wind screen On the unit, limit tasting to low wind conditions.
4.
Monitor for about 10 minutes, recording meter readings every 10 seconds. The average
of the readings will give a close approximation to the I-br L.eq. (While
the
sound
level
meter also has the ability to integrate readings over aperiod oftime up to 199 seconds,
Greg did not recoinmeod using it. He stated that the integration protocol used
by
the
Chinese
was
questionable, and could not be correlatedwith any knowninternational
standard.) He further stated that the “slow”, “A” weighted results were recognized by
both US and international agencies.
5.
According to Greg, the “pseudo” limits are 51 dbA (nighttime
—
10pm to lain) and 61
dbA
(daytirne—7am to 10pm).
2.0
Test Results
-
July 7, 1999
Weather
at
the
time ofreadings was 78
degrees, 90 humidity,
no
wind, and
scattered clouds.
I
anived at
the RiverRun subdivision at
6:15
am in anticipation
ofthe plant starting
up at about
6:30.
1
parked at a vacant lot
between 4423 and
4419 Esquire Circle on
Esquire
Circle (parcel
number
352-014). After walking to the back
of
the lot (at the Boughton Trucking property line).
1 prepared the Radio Shack
digital
display sound level meter(digital model 33-2055) as
described
in the protocol.
The plant started up at 6:35 am. The sound level meter can only
display
sound
levels to a
minirtium of
50 1Db.
Although I could hear the
plant
running,
ineluding back-up alarms,
The
only
events that
registered
readings
above
50
dB
was
the
occasional
truck dump at the primaxy. At
This
location,
1
believe the nightline
limits
were not being
exceededprior
to 7:00
am.
the
The
meter
second
onlysamplingoccasionallylocation
registered
was at
the
abovo
back
50
of
IJBA.
the
PattermanThe
nightiine
(thetomplainant)
Limit was not
Lot
exceeded
Againat7
This
location.
FM?668\WOBK\No~rccSurvcyNDtc3.doc
03/29/00
PATTERMANN
ExHIBIT A
For PES
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*
~
1365 P 3/4
—, ——
MAR.
31. 2803 lU:54AtA
HARDING ESE
I then attempted a reading atthe end of Sebastion Court, but therewas too
much background
construction noise (bomebuilding) to get any meaningful readings. The sound ofThe screening
plant was noticeable, however, and similar to laterresdings atBaybrook Lane.
The
third sampling location was atthe back lot of 1719 Baybrook Lane. The plant was
noticeably louder at this location, with average readings front 57 and 58 dBA. Some ofthe plant
equipment, namely the elevated wash plant screen
was
visible from this location. There is
limited vegetation between the plant site and the homes along Baybrook Lane~Distinct sounds
could be identified, including back-up alarms, truck dumps into the primary, vibrating screens,
and tnacksfloader engines at ThU power.
The fourth location was at the back 1~tof 1743 Baybrook Lane. Sound levels dropped to an
average of
54
DbA, due to additional free screening.
The fifth location was between 4247 and 4235 Cotton Circle, an area closest to the active
higliwall. The only sound th4 moved the meter
above
50
dbA was the occasional loader
dumping muck into ahaul truck.
3.0
Test Results
—
.Tuly 26,
1999
1 revisited the quarry on the afternoon of July 26, 1999. Temperature PC) degrees, winds from the
west at 12 mph. The plant
was
operating normally.
I checked readings atthe vacant lot on Esquire at 3~30pm. Noise levels were higher than
recorded during the morning of the 7th, atan average of 52 Dba. This is likely due to the wind
direction.
Noise at the back lot of 1710 Baybrook was actually lower thanrecorded on the 7th, at an
average of $4 the. Differences in the weather, humidity, and wind direction likely account for
the difference.
Other spot check readings around the River Run neighborhood showed no areas above the
daytime limits.
4,0
Conclusions and Recommendations
Nightime limits cannot be met by the existing plant configuration along Baybrook Lane or
Sebastion Court. At the moment, the nightline limit along Esquire Circle (and west to the swim
club) is barley being met. However, the nightirne limit will almost certainly be exceeded when
the leaves are off the trees.
All daytime readings are currently being met meeting the daytime limit, but with little room to
spare along flaybrook Laneand Sebastion Court
The most prominent audible sounds were backup alarms (although they did not appear to affect
the meter readings) and truck dumps at the primary (which did affect the readings). The
screening plain sound alone does not appear to exceed daytime limits, although it is quite
noticeable.
In order to insure that ixightime limits are net exceeded, I recommend waiting until 7:00 am to
startoperating the processing plant. I don’t believe that shipping (loading customers trucks)
earlier than 7:00 ant will be a problem.
Pa47665\WORX\Noist
Suzvey
~otc.4oc
03/29/00
For PFS
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*
Pg
‘NO
136~ ~ 4/4
MAR. 31. 2003
10:54AM
HARDING ESE
I
Enclosing
the
primary crushingdump hopper will help reduce the intermittent, loud noise
resulting from thick dumps.
Consideration should be given to using airanistive screen cloth media
at-thewash
plant to reduce
the noise from the screen. Alternatively, the screen tower can be enclosedto contain the noise.
P:\47668\WORK\Noise Survey Nobu.doc
03/29/t0
MAYER, BROWN, ROWE & MAW
90
SOUTH LA SALLE
STREET
CH.CAGO, ILLINOIS 60603-344 I
PATRICIA F. SHARKEY
MAIN
TELEPHONE
COUNSEL
(3) 2) 7e2-OeoO
OIREcTDLALI3I2) 7O)~7952
MAIN PAX
oIpEaFAxc3Ia)706-91 IS
(312)701-7711
psharkey@rnayerbrownrOwe.com
April 3, 2003
VIA Facsimile and Attachments
VIA UPS Overnight Delivery..
Gina Pattermann
4439 Esquire Circle
Naperville, Illinois
60564
Re:
Supplementary Discovery Res~nses
Dear Ms. Patterman:
Per the extended deadline for submission of written discovery responses ordered by the Hearing
Officer in the Status Conference held on March 27, 2003, we are herewith providing you with
the following supplementary responses:
Interrogatory responses:
In response to neighbor concerns, Boughton changed its hours ofplant operation to 7:00 am to
4:30
pm sit year round approximately two years ago. Although emp’oyees and customers arrive
between 6 am and 7 am, ito rock crushing equipment is in use until 7:00 am.
Equipment: 2 new screens:
New Allis Chalmers Ripple Flow 6 X 20
Pioneer
5
X 16
3
declc screen
Rubber screens added to Diester BHM 3820 3-deck vibrating screen
1 new CAT 773 Quarry Truck
2 new MACK Semi-Trailer Trucks
Sold 2 Peterbilt Semi-Trailer Trucks
1 Euclid R-50 Quarry truck
(
not in use for last two years)
Installed infrared back-up alarms on two trucks (pilot program)
Brussels
Chadorte Chicago Cologne Frankfurt Houston London .osAngel~Manchester New York Palo Alto Paris Washington, D.C.
Independent
Mexico
City Correspondent: Jauregui, Navarrete, Nader y Rojas, S.C.
Mayer,
Brown, Rowe
&
Maw
isa U.S.
General Partnerthi~.We operate
in cctabinaton v~thouras~aIedEnglish partnership in the clOnes istect above.
PATTERMANN EXHIBIT B
MAYER, BROWN, ROWE & MAW
Gina Pattermann
April
3,
2003
Page 2
Employees update:
Jim MeCary
—
retired
Doug Boughton
--
deceased
Ann Boecker
—
retired
Carol Merkel
—
Office
—
hired
Steve Schlitz
—
CAT 9220— hired
Tom Breyne- Semi-Driver
-
hired
Noise reduction consideration: See attached Boughton memoranda re noise and dust mitigation
measures and cost estimates
Documents
1.
Resumes of Kip Smith and Michael McCann
2.
A document entitled
“
Boughton Trucking Noise Survey Notes” prepared by Kip Smith,
MACTEC, dated 3/29/00
3.
Correspondence by Boughton re zoning of the River Run property
4.
A sample copy of blasting records that are maintained on site and for which Boughton
previously offered Complainant the opportunity to inspect
5.
A photo copy of an IDOT 1997 aerial photo graph depictingthe River run subdivision,
Boughton property and aportion of the Vulcan property
6.
Boughton memo re cost estimates for moving plant into the pit as proposed by Greg Zak
7.
Boughton memo re noise and dust mitigation measured taken in last two years
8.
Real estate value study prepared by McCann & Associates.
9.
Judgment Order in Boug~tonv. County of Will, et aL, Circuit Court Case No. 80 CH 253
(Mar. 6, 1982)
10.
LEPA Air Permit (Issued 1/13/00)
11.
Report on Visible Emissions Evaluations May 4, 5, and 11, 1988 Compliance Test
S~erely,
PaF~i~Y
cc: Bradley Halloran
( w/o
attachments)
1175208040303 1651C 99556862
CERTIFICATE OF SERVICE
The undersigned hereby certifies that he caused the above and foregoing Notice
of Filing and COMPLAINANT’S MEMORANDUM IN RESPONSE TO RESPONDENT’S
MOTION FOR SUMMARY JUDGMENT, all on behalf of the Complainant, to be served
via facsimile transmission upon the following:
Mark R. Ter Molen
Patricia F. Sharkey
Kevin G. Deshamais
Mayer, Brown, Rowe & Maw
190 S. LaSalle Street
Chicago, IL 60603
Fax No. (312) 706-9113
on this
2gth
day of December, 2003.
THE JEFF DIVER GROUP, L.L.C.
By: ____________________
Michael S. Blazer
26
THIS FILING SUBMITTED ON RECYCLED PAPER
