R~CENVED
CLERK’S
OFFICE
F:\CLIENTS\LT D-noise\Appeal\Motion-Stay.wpd
February 22,2004
STATE OF
ILLINOIS
ILLINOIS POLLUTION CONTROL BOARD
Poflution Control
Board
KAREN &
ANTHONY ROTI, et al,
)
)
Complainants,
)
)
v.
)
PCB 99-19
)
(Enforcement
-
Noise
-
Citizens)
LTD COMMODITIES,
)
)
Respondent,
)
LTD COMMODITIES’ MOTION
TO
STAY PENDING DIRECT APPELLATE REVIEW
Respondent, LTD
Commodities, Inc., by its attorneys, BAIZER & KOLAR, P.C., pursuant
to
35
Illinois Administrative
Code
§
101.514 and Illinois
Supreme Court Rule 335(g),
moves the
Illinois Pollution Control Board (“PCB”) to stay enforcementofits February 15,2001, July 24, 2003,
and February
5,
2004, decisions pending direct appellate review of those decisions.
In support of
this motion, LTD states as follows:
Illinois
Supreme Court Rule 335
1.
LTD
is
appealing the PCB’s
decisions
in
this
case directly to the
Second
District
Appellate Court.
Illinois
Supreme Court Rule 335(g) provides that
“application
for a stay of a
decision or order ofan agencypending direct reviewin theAppellate Court shall’ ordinarily be made
in the first instance to the agency.”
Necessity
For
Stay
2.
In its
August
28,
2003,
motion
for reconsideration,
LTD requested that the PCB
modify its decisions to permit use ofa backup beeper on a yard tractor during day light hours.
LTD
supplemented this request with an email and letter from the operator ofthe yard tractor.
3.
To attempt
to lessen noise at LTD’sproperty, LTD’s Harri Brornan sent an email to
Cycle Logistics, the owner and operator ofthe yard tractor, that provided in part as follows:
With
respect to
our need to
keep the
noise
level to
a minimum to
our residential
neighbors.
One thought was to
eliminate the back up
alarm
on the yard dog,
but
provide the spotter with a person for safety purposes.
What is
Cycle’s feeling on
this?
Cycle’s response to this request was an emphatic “no.”
In an email response, Cycle stated:
“Iam
sorry we
cannot comply with
the
request.
Cycle
is
committed
to
servicing LTD,
however,
the
exposure is too
great.
I hope you understand our position.”
(Ex. A, p.
1)(emphasis added).
4.
Ina September 10,2003, letter to Jack Voigt ofLTD, Cycle reiterated its positionthat
it could not turn off or lower the volume
of the backup beeper.
Cycle’s decision was
based on
“extensive research,” namely contact with OSHA, Cycle’s insurance carrier, Cycle’s attorneys and
the manufacturer of the yard tractor.
(Ex. B).
5.
Despite Cycle’s emphatic position that
it
will
not
disconnect
the backup beeper
because ofworker safetyconcerns, thePCB
‘
s February 5,2004, decisionprovides in part asfollows:
Within
40
days after receipt of this order,
LTD must
cease and desist from using
backup warning beepers at the Bannockburn facility on any yard tractor owned and
operated by LTD.
LTD must replace any backup warning beeperwith either a human
spotter or a strobe light in accordance with applicable
State and federal law.
Likelihood
Of Reversal By Appellate
Court
6.
LTD
believes it is entitled to a stay because it expects the appellate court will reverse
the PCB’s decision regardingthe backup beeper onthe yard tractor.
The only evidence in therecord
is that
the operator of the yard
tractor will
not
disconnect the beeper because of worker safety
concerns.
LTD
does not expect the appellate court to affirm a decision that exposes employees to
dangers in the truck dock area.
-2-
7.
LTD also believes the appellate
court will reverse the PCB’s
decision regarding the
backup beeper because a human spotter and/or a strobe light are not reasonable alternatives during
day light hours. Obviously, a strobe light will not be visible during day light hours. A humanspotter
is not a reasonable alternative because the yard tractor is not the only tractor moving trailers in the
truck dock area.
Over-the-road truck drivers pull trailers
in and out of the LTD truck dock
area.
When trailers are being moved around the dock area by means other than the yard tractor,
thenthe
human spotter will be in
danger of being hit by a tractor.
Quite simply, for safety reasons, LTD
wants to reduce the number ofpeople walking around the truck dock area.
However, the PCB’s
decision mandates
another person (the spotter) in the truck dock area who will be at risk of injury
while
he or she follows the yard tractor around the
dock area.
Conclusion
8.
In its
original
motion
for reconsideration,
LTD
requested that
the PCB
stay
its
decisions if it did not grant LTD’s motion for reconsideration.
While this request was noted in the
PCB’s
February
5,
2004,
decision, the
PCB
did
not
act on the request.
LTD
needs
a definitive
decision from the PCB
on this motion for stay before it can apply to
the appellate court for a stay.
Of course, if the PCB grants
this motion
for stay, LTD
will not
need to
request a stay
from the
appellate court.
-3-
WHEREFORE, LTD
respectfully requests that the PCB:
A.
Stay
enforcement of its
February
15,
2001,
July
24,
2003,
and February 5,2004,
decisions pending direct appellate review ofthose decisions;
and
B.
Provide such other and further relief as is just and equitable.
LTD
Commodities
By~~1~ ~
(JJosep~E. Kolar, one Of Its Attorney
ATTORNEYS FOR RESPONDENT
BAIZER & KOLAR, P.C.
513
Central Avenue,
5th
Floor
Highland Park, IL
60035
847-433-6677
Fax:
847-433-6735
-4-
CERTIFICATE OF SERVICE
The undersigned states that on February 23, 2004, he served by Federal Express for delivery
on
February
24,
2004,
the
original
and
nine
copies
of the
foregoing
LTD
COMMODITIES’
MOTION
TO
STAY PENDING DIRECT
APPELLATE REVIEW upon the Illinois
Pollution
Control Board at the following address:
Ms. Dorothy M.
Gunri
Clerk ofthe Illinois Pollution Control Board
100 West Randolph Street
Suite
11-500
Chicago, IL
60601
and
one
copy by
United
States Mail, with postage prepaid on the complainants at the
following
addresses:
Karen & Anthony Roti
1591
W.
Wedgewood Drive
Lake Forest, IL 60045
Paul Rosenstrock
1541
W. Wedgewood Drive
Lake Forest, IL 60045
Leslie & Henry Weber
1481
W. Wedgewood Drive
Lake Forest, IL
60045
Jose~ol~
~
-5-
Page
1 of2
Joe Kolar
—____________________________________________________
From:
“Jack Voigt” .)Vo~gt@LTDCommodities.com
To:
“Michael Hara” MHara@LTDcomrnoditjes.com;
“Joe Kolar (E-mail)” Joe@baizlaw.com
Sent:
Tuesday, September09, 2003 2:16 PM
Subject:
FW: Spotter
Please note Tim Mudd’s response to tum~igoff the audio signal
on the
spotter truck.
Original Message
From: Harri Broman
Sent:
Tuesday, September 09, 2003
2:04
PM
To: Jack Voigt
Subject: FW:
Spotter
FYI
Original Message
From: Tim Mudd
~maiJto:tmudd~cyclelogistics.com
Sent: Tuesday, September 09, 2003
2:14 PM
To;
‘Harri Broman’
Cc: Dan Mudd’
Subject: RE: Spotter
Hello Harri,
I spoke to our Attorney,
Insurance Carrier,
OSHA (anonymously) and the
manufacture about the signal.
They all were very emphatic about not
tampering with a safety device.
Upon receipt ofyour e-mail I checked
with
Cycle’s Attorney and Insurance Agent and they stated that we are
opening Cycle and LI))
up
for a huge liability issue.
I am sorry we cannot comply with the request.
Cycle is committed to
servicing LTD, however, the exposure is too great.
I hope you
understand
our position.
Frorn
what
I understand the “quiet time” is after
10 pm.
I-low many moves
take place after
this
time’?
Perhaps we should release the spotter at
10pm
and have one of
our
shuttle drivers
finish up in Bannockburn and
complete the final moves.
What are your thoughts?
Thank
you for your continued patronage.
If you have questions or would
like to
discuss this
further,
I can be reached at 847-489-2623.
f_s
I,
Page
2 of 2
Tim Mudd
-Original Message-----
From: Harri Broman
mailto
:HBroman~LTDCornmodities
.com
Sent: Tuesday, September 09, 2003
6:56
AM
To:
‘Tim Muddt
Subject: Spotter
Hi Tim.
With respect to
our need to keep the noise level to
a minimum to our
residential neighbors. One thought was to
eliminate the back up alanxj
on
the yard
dog, but provide the spotter with
a person for safety purposes.
‘What
is Cycle’s feeIin~on this?
~I1
~
CYC L~
LQG~STICS,INC.
Mr.
Jack
Voigt
September
‘tO, 2OO~
Vice Pre~id~nt
of
Distribution
LTD
Commodltiee
2800
L~kt~icl~
Dr.
Barinockb
~
IL
6001
5
Dear
Mr.
Vojgt~
As
per
your request,
I
have
done some
extensfve re~enrch
to
reduce or eliminate the backin5
signal
on
the
spotting
unIt
~jtLTt)s
~annackbwm
fhcftity.
The ~‘bIloWing
isa brief
oLitline
of
my
findings:
1.)
The
MnflLrfa~rurer
of
the
oT-rOWA
(sporter)
—
When
asked,
if
there
is
z
cignal
with an
adju.stable volurpe, they said
iiu.
Whe,~
a.shed if
There
s
a signal with
a
lower volume.
they
said
no anti
Ili~it
the
decibel
level
is
set
by
051-iA.
2.j
Cycle’s 1fl5urai~ce
Carrier— When
a~kc4
about
adjusting
the
volume
or removiiig
the signal.
~yc1e’~
Carrier stated that any tampering with
a
safety
devk.c m’i1~be
deemed a
wiltfiji
and negligent
act arid
could poteritially
ex.~ose
Cycle
to
a
coverage
issqe
if~ny ji~ciderit
related
to
backing did
in
fact
cceur.
3.)
Cycle’s
Attorney
—
Alao
stated that ~oytampering
with
~afety
equpmer~t
wouH
“open
Cycle
ttp to
~ubstantiai1iabi~ity”.
4.)
OSHA
—
Stated
that
the dec~bcllevels were set
at that point
because
resting
wa~
done an~
tone
and
decjbi~Is
utiuized
were
found to
be
the most
effective with out
being
too
loud.
The gentleman
went
on to ~ay
that any tampering a~
all
with
any
safety
device ~fegainst
OSHA
regtilauons arid
Wilt
be a flagrant act ~Ttd
will
call
for
significant
t5n;s
arid penalties
I
appreciate LTD’s
cencerrI
for the ~~jse
level
arid
the
negative impact
it
has
on L.TD~s
neighbor
relations.
Hawe~cr,based
on my
fund~irlg8
ttnd the emphatfe responses
1
received front everyone
F
spoke to. Cycle ha~
no choice
but to
leave
the
backing signal at
its current
setting.
LTD
is
a
valued
customer
and
Cycle would like notI~ingmore th~trt
to
make
life easier
for
you
and
your
~
We
arc open
to otl~er
auggeatione.
Ifyo~i
hnve
~ny
question,
I
can
be reached
at
g47~489-2623.
Thank
you
for your continued
—C,
Sincerely,
Tim~hy
E. M~d
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