STANDARD OF REVIEW
EACH OF COMPLAINANTS CLAIMS
Conclusion

RECEIVED

CLERK’S OFFICE

BEFORE

THE

JAN 292004

ILLINOIS POLLUTION CONTROL

BOARD

STATE OF ILLINOIS

Pollution Control Board

GINA PATTERMANN,

)

Complainant,

)

PCB 99-187

)

(Citizen Enforcement

—

)

Noise, Air)

BOUGHTON TRUCKING AND

)

MATERIALS, INC.,

)

Respondent.

)

BOUGHTON’S REPLY

BRIEF

TO COMPLAINANT’S

MEMORANDUM

IN RESPONSE

TO MOTION FOR SUMMARY JUDGMENT

NOW COMES Respondent, Boughton Trucking and Materials, Inc. (“Boughton”), by its

attorneys, Mayer, Brown, Rowe & Maw LLP, and replies to Complainant’s Memorandum In

Response to Motion for Summary Judgment.

STANDARD OF REVIEW

Boughton agrees that in reviewing a motion for summary judgment the Board must take

all of the “facts” in their best light for the Complainant. However, even taken in

thisfavorable

light, the facts in this case do not support a finding of violation on any ofthe claims made in the

Complaint.

Complainant’.s brief states she has produced

primafacie

evidence establishing the

elements ofher claim. Complainant’s Mem. in Resp. to Summary Judgment Mot. at p.

(hereinafter “Response”). Boughton disagrees. Whether Complainant has produced evidence

establishing the elements ofher claims is precisely what Boughton’s Motion for Summary

Judgment (“Motion”) asks the Board to decide.

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Complainant must do more than allege violations to withstand a motion for summary

judgment. (See Response at 4). In response to Respondent’s discovery requests, Complainant

should have produced evidence supporting every element of her seven different claims. After

failing to produce evidence supporting her claims in discovery, she cannot simply sit back on

allegations, claim the burden has shifted to the Respondent, and demand a trial. Allen v. Meyer,

14 Iii. 2d 284, 292,

152

N.E.2d

576

(1958) (holding that when a complainant has no evidence on

which a court can rule in her favor, summary judgment is encouraged as an aid in the expeditious

disposition of a lawsuit); Gauthier v. Westfall, 266 Iii. App. 3d 213, 219, 639 N.E.2d 994 (2d

Dist. 1994) (holding that to withstand a motion for summary judgment, complainant must

present a factual basis which would arguably entitle her to a judgment).

Complainant’s reliance on the Board’s September 23, 1999 ruling on Boughton’s initial

Motion to Dismiss Complaint As Frivolous illustrates Complainant’s misconception ofthe

‘Boughton specifically asked Complainant to provide all of the information she had

supporting each ofher claims. For example, Boughton’s Interrogatories Nos. 1 through

asked

Complainant to “Identify with particularity each and every fact on which you rely and all bases

for your contention that respondent has violated” Section 9 ofthe Act, Section 24 ofthe Act, 35

Ill. Adm. Code 900.102, 35 Ill. Adm. Code 901.102, 35 Ill. Adm. Code 901.104. Interrogatory

No. 6 asked Complainant to “identify with particularity each and every fact on which you rely

and the bases for your contention” that noise and/or dust emitted from Boughton’s facility

“unreasonably interferes with your enjoyment oflife or activity at yourproperty.” (See

Attachment I to Motion, p 3). Boughton’s Document Request No. I also requested that

Complainant “Produce all documents in your possession or control that were identified in your

responses to Boughton Trucking, Inc.’s First Set of Interrogatories.” Document Requests 2

through

requested that Complainant produce all documents in her possession or control that

referred or related to: “Boughton Trucking, Inc.,” “noise or dust levels, testing, or impacts at

yourproperty at 4439 Esquire Circle, Naperville IL,” “noise or dust levels, testing, or impacts

regardless ofwhether at your property or not, which levels or impacts you believe were created

in whole or in part by Boughton,” and “noise or dust levels, testing or impacts that you believe

resulted in whole or in part from sources other than Boughton.” (See Attachment 3 to Motion, p.

2).

THIS DOCUMENT IS PRINTED ON RECYCLED PAPER

standard ofreview at this point in the case. (See Response at 4). As the Board is well aware,

Section 103.212 (formerly Section 103. 124) ofthe Board regulations allows the Board to accept

a complaint for hearing unless it is “duplicitous or frivolous,” and specifically allows 30 days for

motions by respondents on this point. In its September 23, 1999 order, the Board did nothing

more than find that certain of the allegations were duplicitous or frivolous and certain allegations

were not. Specifically, the Board held: “The Board finds that the remaining

alleged violations

the Act and the Board’s rules are neither duplicitous nor frivolous, so that the balance ofthe

complaint is accepted for hearing.” (Order at p. 4) (emphasis added). This was simply a finding

that the complaint stated a claim under the Act and rules, not a finding that the allegations above

were sufficient to establish a violation.

“Duplicitous and frivolous” is not the standard for Board review on a motion for

summaryjudgment. Rather, the standard of review on summaryjudgment is stated in the

Board’s Rule

101.516(b):

If the record, including pleadings, depositions and admissions on

file, together with any affidavits, shows that there is no genuine

issue of a material fact, and that the moving party is entitled to

judgment as a matter of law, the Board will enter summary

judgment.

Applying this standard, the question for the Board is whether the evidence it currently has

before it, in the form ofthe pleadings, depositions and admissions, and affidavits, indicates that

there is a dispute as to any fact that would make a difference as to a finding ofviolation on any

ofComplainant’s claims. Hartmarx Corp. v. JBA Int’l, 2002 U.S. Dist. LEXIS 4249, *10 (March

14, 2002) (“A genuine issue ofmaterial fact exists only where the dispute over facts might affect

the outcome of the lawsuit and there is sufficient evidence to support a jury verdict for the

nonmoving party.”).

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For purposes ofsummary judgment, Boughton is not disputing Complainant’s or her

witnesses’ observations. The only issue is whether the

facts

they have attested to

—

not their own

subjective characterization ofthe facts

—

if taken as true, are sufficient evidence to support a

finding ofa violation ofthe Act or regulations under the “unreasonable interference” standard.

Contrary to Complainant’s contention, this is not a questionof fact, it is a question oflaw. Thus,

there is no issue ofmaterial fact. Rather, as is discussed in further detail below, the nuisance

claims, as well as Complainant’s other claims, all come down to questions oflaw which are ripe

for summary judgment at this point.

BURDEN

OF PROOF

In her Response, Complainant makes two legally incorrect and misleading arguments

regarding burden ofproof and the availability ofsummary judgment at this point in this case.

Complainant argues that it is premature to consider the Section 33(c) factors and that she

should be allowed to bring in additional evidence on them at a hearing. (Response at 3). But

this is precisely the evidence needed to establish her nuisance claims, i.e. the claimed violation of

Sections 9(a) and 24 ofthe Act. The Supreme Court has directed the Board to consider the

factors outlined by 33(c) ofthe Act in determining whether unreasonable interference has

occurred under the Act and Board rules, and the Board routinely does so. Wells Mfg. Co. v.

PCB, 73 Ill.2d 226, 232-233, 383 N.E.2d 148, 150-51 (1978);

see also

Ferndale Heights Util. v.

44 IIl.App.3d at 967-68, 358 N.E.2d 1224 (1st Dist. 1976).

In arguing that she should be allowedto bring in additional evidence on the 33(c) factors

at hearing, Complainant is once again trying to re-invent her case. IfComplainant had evidence

pertaining to her nuisance claims which she failed to produce when specifically asked to do so in

discovery, she cannot now contend she has “additional” evidence. The Board has already

THIS DOCUMENT IS PRINTED ON RECYCLED PAPER

addressed this issue

—

twice. First in its August 7, 2003 order, and again in its September 4, 2003

order confirming its prior order after the Complainant asked for “clarification.” Specifically the

Board said, it “will not reopen discovery” and “Ms. Pattermann may not designate any new

witnesses at this

late date.”

(Order at p. 2) (emphasis added).

Boot-strapping one incorrect argument to another, Complainant relieson the Board’s

opinion in Loschen v. Grist Mill Confections, Inc. for the proposition that she is allowed to

produce additional evidence on the essential elements ofher claims at hearing, and, therefore,

she is shielded from summary judgment. PCB No. 97-174 (Sept. 18, 1997), 1997 Ill. ENV

LEXIS 538. But this is not the holding ofthe Loschen case. The Board’s opinion in Loschen

says “it would be premature to weigh the factors of Section 3 3(c) of the Act at this time, since

complainant is not required to present facts

in the complaint

concerning Section 33(c) ofthe Act

in order to file a

sufficient pieading.but

instead may present facts at hearing.” 1997 Ill. ENV

LEXIS 538 at *11 (emphasis added). The Board denied summary judgment for the Respondent

in Loschen when the case had been pending for just over five months. Unlike the case at bar,

little discovery had taken place. IfLoschen stands for any proposition, it is that a motion for

summaryjudgment brought prematurely by a Respondent,

i.e.

prior to the completion of

discovery, will not be granted.

Contrary to Complainant’s wishful argument, Loschen does

not

say that a complainant

need not produce in the discovery prOcess the evidence that she intends to present at hearing.

Any such proposition is patently wrong. It is well-established that a party cannot introduce

additional evidence after the close ofdiscovery if that evidence was available during discovery.

Illinois courts have held “that fractional discovery and fractional disclosure are not to be

tolerated.” Coils v. City of Chicago, 212 Ill. App. 3d 904,

954,

571 N.E.2d 951 (1st Dist. 1991).

THIS DOCUMENT IS PRINTED ON RECYCLED PAPER

The incomplete disclosure of evidence implies that no additional evidence or information exists

arid “inevitably tends to mislead opposing counsel into the belief that further inquiry is not

needed.”

14.

(citation omitted). The Illinois Supreme Court has found that “such conduct is

especially to be condemned because discovery is supposed to enable counsel to decide in

advance oftrial not only what the evidence is likely to be but what legal issues can credibly be

argued.” Lubbers v. Norfolk & Western Ry. Co., 105 Ill. 2d 201, 213, 473 N.E.2d

955

(1984).

Courts will not allow the introduction of evidence at trial that was available to the plaintiff

throughout the time for discovery. See e.g., Colls, 212 Ill. App. 3d at 95 1-52 (the court, in

upholding the exclusion oflate-disclosed evidence, found “nothing in the record to indicate that

these documents were not as readily accessible to defendant during the pre-trial period as the

one report which was immediately disclosed”).

The case at bar has been pending for over 4

‘/2

years. Discovery was complete on May 2,

2003, and this was clarified at Complainant’s request in the Board’s order of September 4, 2003.

We are not at the pleading stage in this proceeding anymore. As noted by the Board, it is now too

late to bringMoreover,in additionalthe

fallacyevidence.in Complainant’s2

argument is evident. If Complainants are not

required to produce evidence in the discovery process on essential elements oftheir claims, the

entire discovery process in the Board’s rules and the Illinois Civil Procedure Act is an exercise in

futility. There would be no incentive for Complainant to disclose anything during discovery, and

litigation by complete surprise would soon be the rule of the day in Board hearings.

Furthermore, if Complainant is correct, there is no way the Board could ever grant summary

While citizen comment would be allowed at a Board hearing, a complainant has the burden of proving the

elements ofher claims and cannot shield herself from summary judgment on the vague notion that a citizen

comment might yield evidence on a claim that she and her witnesses have not been able to substantiate after 4

1/2

years of litigation.

THIS DOCUMENT IS PRINTED ON RECYCLED PAPER

judgment. If that is the law, Section 101.5 16 should be eliminated from the Board’s rules, as

every case filed with the Board would have to go to hearing. This is simply not the law.

Summary judgment is a legal mechanism for avoiding, a hearing based on a complete disclosure

of facts during the discovery process. Safeway Ins. Co. v. Hister, 304 Ill. App. 3d 687, 690, 710

N.E.2d 48(1St Dist. 1999) (the use ofsummaryjudgment “is to be encouraged because it

benefits insure not only to the litigants in savings oftime and expenses, but to the community in

avoiding congestion oftrial calendars and the expenses of unnecessary trials”).

Complainant also twists the ruling in IEPA v. W. F. Hall Printing Company, PCB 73-30

(Sept. 15, 1997), 1977 Ill. ENV LEXIS 735 (citing Processing and Books, Inc, 64 Ill. 2d 68, 351

N.E.2d 865 (1976)) and argues that complainant has no burden to present evidence on the

Section 33(c) factors. But it is quite clear that both ofthose cases limited the conclusion that the

respondent has the burden ofproofon the Section 33(c) factors by the phrase

“to the extent that a

factor is not a necessary part ofComplainants’ burden as to unreasonableness.”

PCB No. 73-

30, *4 (emphasis added). This makes perfect sense. The Board is obligated to consider

“reasonableness” using the Section 33(c) factors in all ofits orders and determinations. For

example, in cases where the violation alleged is the exceedance ofan emission standard or a

deviation from a permit condition, the Section 33 (c) factors can be reviewed after a finding of

violation to determine whether compliance was technically impractical or economically

unreasonable. However, the air pollution alleged by the Complainant in this case results from

“the presence of such contaminants in such amounts, characteristics and duration as to

unreasonably interfere with the enjoyment of life or property.” Incinerator. Inc. v. PCB, 59 Ill.

2d 290, 295, 319 N.E.2d 794 (1974). This type ofair pollution “is not proved unless there has

been a showing ofan unreasonable interference with the enjoyment oflife orproperty.?’ Id. at

THIS DOCUMENT IS PRINTED ON RECYCLED PAPER

296. The categories offactors set forth in Section 33(c) are considered in determining

reasonableness.

14.

While the Complainant does not bear the burden ofproving all ofthe

section 33(c) criteria, Processing and Books, 59 Ill. 2d at 75-77, the Complainant has the “burden

of proving all

essential elements

of the type ofair-pollution violation charged, and the Board

must then assess the sufficiency of such proof by reference to the section 33(c) criteria.”

Incinerator,

Ill. 2d at 300 (emphasis added).

As stated, Complainant is not

obligated

to present evidence on each factor, but if, after.

discovery, she has failed to produce evidence on a factor and Boughton has, it is then up to the

Board to consider the unrebutted evidence. This does not necessarily mean the Board must find

for Respondent. For example, the Board could find the Respondent’s evidence to be

inconclusive or irrelevant. But, contrary to Complainant’s wishful thinking, it also does not

preclude the Board from acting on a Summary Judgment motion or mean that the complainant

must be allowed to go to trial and at trial be allowed to produce previously undisclosed evidence.

Complainant’s Response on the issue ofburden and ripeness for summary judgment is

“smoke and mirrors” designed to allow Complainant “another bite” to try to save her case by

bringing in evidence not disclosed during discovery. The standards are clear. A party must

produce all requested evidence in discovery. CoIls, 212 Ill. App. 3d at

954;

Lubbers, 105 III. 2d

at 213. In this case, Respondent requested that Complainant produce all evidence supporting her

claims. If in response to that request, Complainant failed to produce evidence supporting her

claims, those claims should be dismissed on Summary Judgment. Gauthier, 266 Ill. App. 3d at

219.

THIS DOCUMENT IS PRINTED ON RECYCLED PAPER

TI-IE

EVIDENCE PRODUCED DOES NOT SUPPORT ESSENTIAL ELEMENTS OF

EACH OF COMPLAINANTS CLAIMS

Now that all ofthe facts have been discovered, this case is ripe for a decision as to

whether

taken in the light most favorable to the Complainant

the evidence Complainant has

produced support the claims made. The evidence before the Board is as follows:

In response to Boughton’s discovery requests, Complainant produced only the responses

and documents contained in Attachments 2 and 4 to the Motion. Complainant produced this

information in July 1999 and never updated her discovery responses. Thus, the information

contained in Attachment 2 and 4 to the Motion and the deposition testimony of her four fact

witnesses, in Attachments 7

—

11, constitute the only evidence Complainant has produced to

support the seven claims she has made. This information does not include any noise

measurement data, any information on noise reduction measures, any evidence on the social and

economic benefit of the quarry, or any evidence on the quarry’s suitability to the area or priority

of location.

For its part, Boughton produced the answers and documents listed in Attachments

and

6, including its original and supplementing discovery responses, information on measures taken

to reduce noise and dust and its expert witness’ property evaluation study, and, since

Complainant chose not to depose Boughton’s witnesses, Boughton also produced the affidavits

of the quarry Operations Manager, the quarry Superintendent and its property valuation expert

witness, with the Motion.

Boughton’s Motion walks through each ofComplainant’s seven claims and demonstrates

that “there is no genuine issue of a material fact” as to each claim

—

even when the above

evidence is taken in the light most favorable to the Complainant. Either Complainant has

produced no evidence on a claim (permit or regulatory claims), or the evidence she did produce

THIS DOCUMENT IS PRINTED ON RECYCLED PAPER

is insufficient as a matter of law (numeric noise limitation claims), or the evidence produced

does not demonstrate a violation (nuisance claims).

PERMIT CLAIMS

Complainant broadly alleged a violation of Section 9 without specifying what she was

actually alleging. Although requested to identify with particularity each and every fact on which

she relied and based her contention that Respondent had violated Section 9, she has presented no

evidence during discovery whatsoever ofa violation ofSection 9(b),

i.e.,

failure to have a permit

or violation ofa conditions of a permit.3 Furthermore, Complainant doesn’t attempt to defend a

Section 9(b) claim in her Response. Given that, there is no evidence on which the Board could

rule in her favor and there is no issue ofmaterial fact as to a Section 9(b) violation; summary

judgment in favor ofthe Respondent on any claim arising under Section 9(b) is both proper and

required.

REGULATORY CLAIMS

Complainant also alleged violations of Section 901.102(a) and (b) (daytime and nighttime

numeric noise limitations) and of Section 901.104 (impulsive sound numeric limitations). As

stated in the Motion, Complainant did state in her deposition that she had made some numeric

measurements, but the measurement procedures that she testified that she used cannot

as a

matter oflaw

be used to demonstrate a violation of the Board’s numeric standards. Section

90l.l03(b)(1) ofthe Board’s rules states:

All measurements and all measurement procedures to determine

whether emissions of sound comply with 35 III. Adm. Code 901

shall,

with the exception of measurements to determine whether

emissions of sound comply with 35 Ill. Adm. Code. 901.109, be

Although not required to do so, since Complainant provided nothing on this claim, Boughton has, in fact, provided

a copy of its current and valid Illinois Environmental Protection Agency air pollution control permit with its Motion.

THIS DOCUMENT IS PRINTED ON RECYCLED PAPER

based on Leq averaging as defined in 35 Ill. Adm. Code 900.101,

using a reference time as follows:

A) Except as specified in subsection (b)(1)(B) for steady sound, a

reference time of at least 1 hour shall be used for all sound

measurements and measurement procedures.

B) For measurement of steady sound as defined in Section 101 of

this Part, the reference time shall be at least 10 minutes.

2) All measurements and measurement procedures under

subsection (b)(I)(B) of this Section must correct or provide for the

correction of such emissions for the presence of ambient or

background noise in accordance with the procedures in 35 Ill.

Adm. Code 910. All measurements must be in conformity with the

following ANSI standards, incorporated by reference at Section

900.106:

A) ANSI Sl.4-1983 (R2001) “American National Standard

Specification for Sound Level Meters.”

B) ANSI S1.6-1984 (R200l) “American National Standard

Preferred Frequencies, Frequency Levels, and Band Numbers for

Acoustical Measurements.”

C) ANSI S 1.11-1986 (R1998) “American National Standard

Specification for Octave-Band and Fractional-Octave-Band

Analog and Digital Filters.”

D) ANSI S1.13-1995 (R1999) “American National Standard

Measurement of Sound Pressure Level in Air.”

E) ANSI S12.9-1993 (R1998) “American National Standard

Quantities and Procedures for Description and Measurement of

Environmental Sound

—

Part 3: Short-Term Measurements With an

Observer Present.”

In cases alleging violations of the Board’s numeric sound limits, the Board requires strict

adherence to applicable measurement procedures. Charter Hall Homeowner’s Ass’n v. Overland

Transp. Sys.. Inc., PCB 98-81 (October 1, 1998), 1998 III. ENV LEXIS 513, *44,

citing

Discovery S. Group, Ltd. v. PCB, 275 Ill. App. 3d 547,

559,

656 N.E.2d

51,

59 (1st Dist. 1995).

Complainant described her procedure as follows:

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No. I just stand there and hold it right in the doorway.

...

Usually

for about five to ten minutes.

...

I’m assuming that I am

monitoring noises just because I can’t remember if I was supposed

to put it on the A or the C band, but Greg told me what band I

should have it on. I think it was the A band, to monitor the correct

noise level.

Pattermann Dep., Attachment 7 to Motion, p. 93.

In her Response, Complainant does not point to any other evidence or argument

regarding the use ofher own ad hoc measurement procedure to demonstrate a violation ofthe

numeric limitations. She does point to a set of notes made by a consultant to Boughton and

implies that they demonstrate a numeric violation. (Response pp. 6-7). But, in fact, they don’t.

The notes refer to measurements made during the day and conclude that the daytime limits were

not

being violated. The author opines that nighttime limits

could be

violated if Boughton were to

operate during those hours, but no measurements were made during nighttime hours.

Furthermore, the affidavits ofWayne Szepelek and Dale Kessen establish that Boughton’s hours

ofoperation are entirely during the hours that are designated as “daytime” under the Board’s

rules. Finally, the consultant’s notes indicate on their face that they were made as a

“

rough

compliance check,” and not in accordance with the procedures required under Rule

901.103 (b)(1). Thus, the measurements referenced in these notes cannot be used to determine

whetherSincenoisetheemissionsonly

evidencecomplythatwithComplainantSection

901.103has

produced

as a matter

or pointed

oflaw.4

to in the record is

evidence which the Board’s regulations state

cannot be used

to demonstrate a violation ofthe

Section 901 numeric noise limitations, Complainant has no evidence to support a verdict in her

~‘

Complainant insinuates that these notes were withheld. In fact, they were the privileged notes of a consultant

working under the direction of Boughton’s prior attorney and were not required to be disclosed until such time as

that witness was named as a testif~’ingwitness. Boughton did name Kip Smith as a testif~’ingwitness in April 2003

on the assumption that Complainant would have an expert witness on the issue of numeric limits, and the notes were

produced at that time. When Complainant did not produce an expert witness, Boughtbn made the decision that it

would not need to use Mr. Smith or his notes, thus they were not included in the Motion for Summary Judgment.

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favor on these claims and Summary Judgment is appropriate as to all claims ofviolation of

Section 901.102(a) and (b) and 901.104.

NUISANCE CLAIMS

The remainder of Complainant’s claims are essentially nuisance claims, alleging that

noise and dust emissions from the quarry unreasonably interfere with Complainant’s enjoyment

of life and property. On these claims, Complainant argues that she has met her initial burden of

proof by testifying in deposition as to “the presence of noise and dust as well as the resulting

negative impact on their lives.” (Response p. 3). However, the presence ofnoise and dust and

even a negative impact on one’s life is not the legal standard for finding a violation of Section

9(a) or Section 24 ofthe Act, or Section 201.141 or Section 900.102 ofthe regulations. The

standard in each of these sections is whether emissions from a facility “unreasonably interfere

with the enjoyment oflife.”

As discussed above, the standard the Board applies to determine whether “noise” or “air

pollution” “unreasonably interferes” is the Section 33(c) factors in the Act. “The Board

considers Section 33(c) of the Act to determine if noise rises to the level ofa nuisance,

i.e.

the

unreasonable interference with the enjoyment of life.” Charter Hall, PCB 98-81, 1998 III. ENV

LEXIS 513 at *46 (citation omitted);

see also

W. F. Hall, 1977 III. ENV LEXIS 735 at *4, 8.

The Section 33(c) factors include the “character and degree” ofany interference and four

other factors bearing on the reasonableness ofthe emissions, including the very relevant factor of

whether the complainant “moved to” the alleged nuisance. Boughton has provided evidence on

each ofthe five Section 33(c) factors and that evidence is either uncontroverted or

overwhelmingly favors Boughton even taken in a light most favorable to Complainant. In fact,

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1—,

1.)

for at least two ofthe factors, Complainant and/or her witnesses have either concurred with

Boughton’s evidence or stated that they simply have no information on this factor.

Section 33 (c)(i): Nature and Character of the Emissions:

Regarding the nature and character ofthe alleged emissions, Complainant’s Response

walks through the witness testimony and picks out different statements to highlight for the Board

than Boughton highlighted.5 Where the testimony is ofobserved facts, such as dust on furniture

or floors, Boughton is not disputing the witnesses’ testimony for purposes of summary judgment.

Boughton also fully agrees with Complainant that it is the Board’sjob to review the facts. With

its Motion, Boughton provided both the Board and Complainant with the complete transcripts, as

well as the photocopies ofphotos Complainant produced during discovery,6 the McCann

property value study and the affidavits ofBoughton’s witnesses all to ensure that the Board had

access to the complete, unvarnished evidence. Based on all of this evidence, the Board has

ample information to determine whether there has been an objective interference with the

enjoyment oflife and property.

In the depositions, Complainant’s witnesses were given every opportunity to describe the

instances and nature ofany dust and noise that they believe emanates from Boughton and

interferes with their lives. Complainant’s Response notes that her witnesses characterized noises

they believe are coming from the quarry as “blasting,” “whooshing,” “Crushing rocks,”

For example, Complainant treats the statement that blasting is “not a big problem for her Gina Pattermann” as a

direct quote which cannot be found in Ms. Pattermann’s transcript. Complainant is correct

—

the phrase cannot be

found in the deposition transcript, because Ms. Pattermann’s exact words were “blasting is not a huge issue for me.

I know for some of my neighbors it is, but it’s not for me. Blasting happens once or twice a week. It’s just not a

huge issue for me.” Pattermann dep., Attachment 7 to Motion, p. 93.

Boughton was never provided with originals ofthe 10 photos, despite a request in the deposition subpoena issued

to Gina Pattermann and each ofher witnesses that any photos in their possession be brought to the deposition.

While for purposes of this Motion for Summary Judgment, the Board must view the evidence in the best light for the

Complainant, the only admissible evidence are the blurry photocopies provided to Boughton during discovery,

assuming Complainant could provide authentication and foundation for these photocopies ifthis matter were to go

to hearing.

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“beepers,” “shaking,” and “grinding”

—

these are all normal quarry noises. There is nothing

unusual about these noises

—

they are the normal noises associated with a quarry and, as is clear

from the aerial photos and the affidavits ofthe people who run the quarry, nothing has changed

in its operations that would have increased that noise.

Complainant’s own testimony indicates that the impact of the quarry on the residents of

River Run is an occasional annoyance, but one that can be ignored most ofthe time, and not

more than to be expected for homes built next to a quarry. However, if the Board finds the

witness testimony contains objective facts demonstrating an interference with the enjoyment of

life and/or property, it’s next step must be to evaluate the “character and degree” of that

itinterferenceshould weighunderthisSectionfactor in33(c)(i).favor

7ofIfRespondent.the Board findsIfthethatBoardthe

findsinterferencethat thisisinterferenceminor

or trifling,is

substantial, however, it should weigh this factor in favor of Complainant. But either way, the

violation of “unreasonable interference” is not proven until evidence on the other Section 33(c)

factors is produced and considered. Incinerator, 59 Ill. 2d at 295-96 (holding that the Board must

consider the criteria in section 33(c) ofthe Act to determine whether the “presence of

contaminants in such amounts, characteristics and duration exist as to unreasonably interfere

with the enjoyment of life or property”); Scarpino v. Henry Pratt Co., PCB No. 96-110 (April 3,

1997), 1997 III. ENV LEXIS, *36, 52 (finding that although theplant noise had interfered with

Complainant’s enjoyment oflife the interference was not unreasonable as “determined by

~ Contrary to Complainant’s contention at p.

of the Response, the issue as to whether an interference is

“unreasonable” is a question of law, not a question of fact. It is the Board’s job to weigh the facts and apply the legal

standards to determine whether the interference in this case is “unreasonable.”

“The word ‘unreasonably’ as used in section

3(b)

was intended to introduce into the statute something of the

objective quality of the common law, and thereby exclude the trifling inconvenience, petty annoyance or minor

discomfort.” Processing and Books, 64 Ill. 2d at 77.

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reference to the criteria set forth in Section 33(c) ofthe Act” and Respondent had therefore not

violated the Act).

Specifically, under Section 33(c), the Board must also weigh: the social and economic

value of the quarry; the suitability ofthe quarry to the area in which it is located, including the

question ofpriority of location in the area; the technical practicability and economic

reasonableness of reducing or eliminating the emissions, discharges or deposits resulting from

the quarry; and the measures undertaken by Boughton to address Complainant’s concerns. As

stated above, in the case of alleged Section 9(a) and 24(a) and Section 201.141 and 900.102

violations, these factors are not applied after there is a finding ofviolation. They must be

considered

before

there can be a finding of violation. Scarpino, 1997 Ill. ENV LEXIS 167 at

*36, 52.

Section 33(c)(ii): Social and Economic Value ofthe Boughton Quarry.

Complainant has provided no evidence on this factor. However, Boughton has provided

substantial uncontested evidence demonstrating the social and economic value of the Boughton

facility. Boughton provides a vital product to the highway and construction industries, serving

over 600 governmental, business and residential customers, employing 70 persons on a full or

partial basis, paying over $1,000,000 per year in federal, state, and property taxes, pumping

millions ofdollars into the local Illinois economy, and making substantial charitable

contributions. This information is unrebutted and demonstrates that the Boughton quarry is of

significant social and economic value to the Naperville-Plainfield community, Will and DuPage

County, and the State as a whole.

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Section 33 (c)(iii): Suitability to the Area and Priority of Location:

Suitability to Area:

The record demonstrates that the Boughton facility is entirely

suitable to its existing location, being located in an area dominated by four quarries, and directly

across the street from the Vulcan Quarry. Further, in this case we are in the remarkable position

of having an Appellate Court opinion in which the court expressly found that the Boughton

quarry was not only well-suited to its location, but is the highest and best use of the property.

Boughton Trucking and Materials, Inc. v. County of Will, 112 Ill. App. 3d 26, 35, 444 N.E.2d

1128 (3d Dist. 1983). The location ofthe quarry is dictated by geology and is completely

dependent on the location ofthe valuable mineral deposits, and for obvious reasons, the quarry

cannot be moved elsewhere. If a quarry is not suitable at this location, it is not suitable at any

location. The McCann study also concludes that a quarry is the highest and best use of the

property, and further demonstrates that the quarry has had no negative impact on surrounding

residential property values.

While Complainant and her witnesses have provided their personal opinions on the

suitability factor, they have provided no evidence, despite a specific request for related

information by Boughton. In its discovery requests, Respondent specifically requested that

Complainant provide information on purchase and sale prices for the properties her husband had

purchased, developed and sold in the River Run subdivision. (See Motion for Summary

Judgment, Attachment 1, Interrogatory 17). Complainant first refused to provide such

information saying it was confidential and later, in a Status Conference with the Hearing Officer,

said she couldn’t provide it because it was in her husband’s possession and they were going

through a divorce. She subsequently testified that she had no information ofproperty values.

Pattermann dep., Attachment 7 to Motion, p. 111. Furthermore, when in her deposition,

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Complainant was asked directly whether she thought the quarry had had an adverse effect of

property values in River Run and her response was “No, not really.” j4. at 113. Taken in the

light most favorable to the Complainant, the evidence on this factor is clearly in favor of

Boughton.

Priority of location: There is “no genuine issue of material fact” regarding priority of

location. When the quarry was developed in 1985, it was surrounded by other quarries and

farmland. The River Run subdivision was not developed until 1994—2001. Complainant’s

witnesses each testified to the subsequent dates on which they bought their properties, several

admitting they knew the quarry was there when they purchased their homes.

(See

Jene dep.,

Attachment 8 to Motion, pp. 12-13, 19; Jenkins dep., Attachment 9 to Motion, pp. 10, 17;

Boudreau dep., Attachment II to Motion, pp.

15-16).

Boughton provided aerial photographs

graphically depicting the movement of the residential subdivision development into an area of

pre-existing quarries, including the Boughton quarry. Vill. ofWilsonville v. SCA Serv., Inc., 86

Ill. 2d 1, 24, 426 N.E.2d 824 (1981) (“It is the opinion of the Court that if a business is located in

a certain area before complainants moved into the area and if the complainants come to the

nuisance this may constitute a defense or operate as an estoppel. A person cannot place himself

in a position where you suffer and then complain.”); Wells Mfg., 73 Ill. 2d at 236 (stating that

when complainants move to the nuisance, they are “on notice ofthe possibility that some

annoyances present in heavy-manufacturing areas could affect them, and this fact considerably

diminishes the potency of their complaints.”).

The aerial photos, on which Boughton’s equipment is visible, together with the affidavits

of Boughton’s witnesses, also document that the Boughton operations have remained unchanged

since the early I 990s. (See Attachment 16 to Motion.) Although one ofComplainant’s witness

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said ~ethought noise from the quarry had increased lately, he admitted he had never been on the

quarry and that his perception could be due to the removal oftrees by a third party. Boudreau

dep.,Attachment 11 to Motion, p. 46.

~ç~jon 33(c) (iv) and (v): Technical Practicability and Economic Reasonableness of Reducing

~~jminating

Emissions/Measures That Have Been Implemented to Reduce Emissions:

Complainant presented no evidence on the technical feasibility or economic

reasonableness of undertaking additional noise reduction measures at the Boughton quarry.

When asked in her deposition whether she was aware ofthe measures Boughton has undertaken

to reduce noise and dust, she stated she was aware ofsome ofthe measures, but unaware of

many others. Pattermann dep., Attachment 7 to Motion, pp. 100-108. While discounting the

effect ofthese measures, she provided no evidence of any other measures that can be taken.

In contrast, information in the record provided by Boughton shows that Boughton has

undertaken a continuous program ofinvestigating and implementing noise and dust reduction

measures. Boughton provided Complainant with an initial list ofthose measures back in 1999

and an updated list in 2003. (See Attachment

to Motion). Complainant chose not to depose

Boughton’s personnel to learn more about the measures that Boughton has investigated and those

that have been implemented. But in an affidavit accompanying the Motion, Dale Kessen, the

Superintendent for the quarry, provided a detailed discussion ofnumerous noise and dust

reduction measures that Boughton has implemented. Those measures include: the construction of

a 50 foot berm across the western side ofthe quarry operating face, shielding most ofthe River

Run subdivision from view as well as noise and dust; reducing the quarry’s hours of operation

well below those of its competitors; the modification of blast procedures to reduce dust and

sound blast; the retrofitting ofvehicles and operating equipment with noise reduction equipment;

and the implementation ofblast restrictions and on-site traffic control measures. (See Kessen

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Aff., Attachment 13 to Motion). Among other things, Mr. Kessen provided noise blast records

documenting that audible noise from blasting has been reduced by over half. (See Exhibits A

and B to Attachment 13.) In addition, the changes have resulted in a reduction in dust emissions

over the quarry wall. Mr. Kessen also provided details on various noise and dust control

measures that were investigated and/or initially implemented that turned out to be ineffective or

unworkable, including the rubber lining ofcertain equipment and the construction of a noise

barrier wall west ofthe ‘wash plant which had to be removed due to safety concerns. Mr.

Kessen’s Affidavit makes it clear that safety concerns are the primary limitation on further noise

reduction measures. (See Kessen Aff., Attachment 13 to Motion, pars. 9, 29, 33-35, 41, 43-44).

The evidence on these two factors overwhelmingly favors Boughton, and Complainant

demonstrated little interest in providing the Board with any additional evidence on existing or

additional noise and reduction measures throughout the discovery period.

Summation of Section

33(c) Factors

It is the Board’sjob to determine whether the evidence in the record at the close of

discovery, taken in the best light for the Complainant, can sustain a finding of “unreasonable

interference” under the five factors in Section 33( c). Ifthe Board agrees with Boughton that the

evidence cannot sustain such a finding and, in fact, overwhelmingly favors Boughton on at least

four ofthe five factors, then there is no need to go to hearing on the nuisance claims and the

Board should grant summary judgment in favor of Boughton on all claims under Sections 9(a)

and 24 ofthe Act and Sections 201.141 and 900.12 of the regulations.

Conclusion

In summary, taking the evidence in the light most favorable to Petitioner, Petitioner has

failed to come forward with sufficient facts to demonstrate a violation ofthe Act. Petitioner has

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provided no evidence supporting a permit violation claim, and the evidence presented is

insufficient as a matter oflaw to demonstrate a violation ofthe Board’s numeric standards for

daytime noise, nighttime noise, or impulsive noise.

Regarding the alleged nuisance-type violations, while Complainant has presented some

evidence indicating the presence ofsome dust and some noise, Complainant has failed to present

evidence supporting the necessary elements ofits claim that the noise or dust constitute an

unreasonable interference.

The required analysis ofthe 33(c) factors overwhelmingly supports

the conclusion that no unreasonable interference has occurred.

Regarding the “character and degree of injury to or interference with the protection ofthe

health, general welfare, and physical property ofthe people,” accepting all ofthe complainants’

witnesses statements in full, the record demonstrates that the interference is minor. The extent of

noise and dust complained ofhave not impacted property values or home sales in the River Run

subdivision, are limited to daytime hours, are in compliance with applicable noise and dust

regulations, and are what is to be expected at properties adjacent to a quarry. ‘The extent of

impacts has also been measurably reduced over time as a result of Boughton’s mitigation

measures.

‘

‘ ‘

‘

Boughton has provided substantial uncontested evidence demonstrating the social and

economic value ofthe Boughton facility. The record also demonstrates that the Boughton

facility is entirely suitable to its existing location, and it is uncontroverted that’the facility has

priority oflocation. Because of Boughton’ s priority oflocation, Complainant were on notice of

any potential impacts, and “this fact considerably diminishes the potency oftheir complaints.”

Wells Mfg., 73 Ill. 2d at 236.

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The evidence in the record further demonstrates that Boughton has been extremely

proactive in pursuing noise and dust mitigation options, and has taken substantial measures to

mitigate noise and dust emissions from its property, including changes in blasting procedures,

changes in drilling procedures, changes in process operations, installation ofnumerous types of

noise mitigation equipment, and construction ofa 50 foot berm. There are no other technically

practicable or economically reasonable measures which can be implemented to reduce noise or

dust emissions.

Taking the evidence in the light most favorable to Petitioner, the record overwhelmingly

supports the conclusion that there is no violation ofthe Act. Under these circumstances, no

purpose would be served by proceeding to hearing, and summaryjudgment is appropriate.

WHEREFORE, Boughton requests that the Board enter summary judgment in its favor

on all counts in the complaint.

Respectfully submitted,

and Materials, Inc.

By ne e~’fIts Attorneys

Patricia F. Sharkey

Mark R. Ter Molen

Kevin G. Deshamais

Mayer, Brown, Rowe & Maw

190 S. LaSalle Street

Chicago, Illinois 60603-3441

(312) 702-0600

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