4

Ms. Patterman stated she took noise measurements from her house in November 2002,

using a Radio Shack sound meter. Ms. Patterman testified she used no formal procedure. Mot.

Att. 7, pp. 64, 75. Ms. Patterman stated she has a noise log (Mot. Att. 7, pp. 71-72), but did not

provide it at her deposition, in any discovery requests, or attach it to her response.

Mr. William Jene stated in his deposition that he had taken noise measurements on his

property with a sound meter he had purchased, but that he did not keep any records. Mot. Att. 8,

pp. 29-30. The remaining three witnesses said they had not taken any measurements. Mot. Att.

10, pg. 32, Att. 9, pg. 26, and Att. 11, pg. 58-59.

To her response, Ms. Patterman attached survey notes performed by Boughton and dated

March 29, 2000. Resp. Exh. A.

APPLICABLE STATUTORY LANGUAGE

Section 9(a) of the Act prohibits the violation of any Board air standards or regulations.

Section 201.141 of the Board’s regulations similarly sets forth a prohibition against causing air

pollution in violation of any Board regulation or air quality standard. 415 ILCS 5/9(a) (2002);

35 Ill. Adm. Code 201.141.

Section 9(b) of the Act prohibits the construction, installation, or operation of any

equipment that causes or is designed to prevent air pollution without, or in violation of, an

Agency-issued permit. 415 ILCS 5/9(b) (2002).

Section 24 of the Act provides that:

No person shall emit beyond the boundaries of his property any noise that unreasonably

interferes with the enjoyment of life or with any lawful business or activity, so as to

violate any regulation or standard adopted by the Board under this Act. 415 ILCS 5/24

(2002).

Similarly, the Board's noise nuisance prohibition is found at Section 900.102 and

provides:

No person shall cause or allow the emission of sound beyond the boundaries of

his property, as property is defined in Section 25 of the [Act], so as to cause noise

pollution in Illinois, or so as to violate any provision of this Chapter. 35 Ill. Adm.

Code 900.102.

Sections 901.102(a) and (b) prohibit the emission of sound during daytime and nighttime

hours from any property-line-noise source located on Class C land to any receiving Class A land

in access of certain numeric limitations at each of nine difference frequencies. 35 Ill. Adm. Code

901.102(a), (b). Section 901.104 prohibits the emission of impulsive sound from any receiving

Class C land that exceeds a specified numeric allowable A-weighted sound level when measured

on any receiving Class A land. 35 Ill. Adm. Code 901.104.

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5

In order to determine compliance with Sections 901.102 and 901.104, measurements of

sound emissions must be taken in strict compliance with the procedures set forth in Section

900.103(b). 35 Ill. Adm. Code 900.103(b). Section 900.103(b) establishes that measurements

must be based on Leq averaging using a reference time of at least 1 hour or, for steady sound, 10

minutes. All measurements of steady sound must be corrected for background noise and in

accordance with the procedures in Part 910 of the regulations and must be in conformity with

American National Standard Institute specifications.

Id

.

STANDARD OF DECISION

Summary judgment is appropriate when the pleadings and depositions, together with any

affidavits and other items in the record, show that there is no genuine issue of material fact and

that the moving party is entitled to judgment as a matter of law.

Dowd & Dowd, Ltd. v.

Gleason, 181 Ill. 2d 460, 693 N.E.2d 358 (1998); People v. City of Waukegan, PCB 01-104, slip

op. at 2 (Aug. 23, 2001). In ruling on a motion for

summary judgment

,

the Board “must consider

the pleadings, depositions, and affidavits strictly against the movant and in favor of the opposing

party.”

Dowd, 181 Ill. 2d at 483, 693 N.E.2d at 370; Waukegan, PCB 01-104, slip op. at 2.

Summary judgment “is a drastic means of disposing of litigation,” and therefore it should

be granted only when the movant’s right to the relief “is clear and free from doubt.”

Dowd, 181

Ill. 2d at 483, 693 N.E.2d at 370, citing

Purtill v. Hess, 111 Ill. 2d 229, 240, 489 N.E.2d 867, 871

(1986). Even so, while the nonmoving party does not have to prove its case, it must “present a

factual basis which would arguably entitle [it] to a judgment.”

Gauthier v. Westfall, 266 Ill.

App. 3d 213, 219, 639 N.E.2d 994, 999 (2nd Dist. 1994);

Waukegan, PCB 01-104, slip op. at 2.

The Board's procedural rules provide that “if the record, including pleadings, depositions

and admissions on file, together with any affidavits, shows that there is no genuine issue of

material fact, and that the moving party is entitled to judgment as a matter of law, the Board will

enter

summary judgment.” 35 Ill. Adm. Code 101.516.

BOUGHTON’S MOTION FOR SUMMARY JUDGMENT

Boughton argues that discovery in this proceeding is now closed, and the pleadings,

discovery responses, depositions, and admissions on file and affidavits attached to this motion

constitute all of the evidence that would be admissible at hearing. Boughton argues that Ms.

Patterman cannot add to the evidence in the record at this point in the proceeding. Mot. at 3.

Boughton continues that, based on this evidence, Ms. Patterman has failed to establish that

Boughton has violated any Board regulation or provision of the Act, and the Board should find

summary judgment in its favor. Mot. at 2.

In the complaint, Ms. Patterman alleges violations of Section 9 of the Act and Section

201.141 of the Board regulations regarding air pollution. Ms. Patterman alleges violations of

daytime and nighttime numeric noise limitations, Sections 901.102(a) and (b) of the Board

regulations, impulsive sound numeric limitations, Section 901.104 of the Board regulations,

noise pollution, Section 900.102 of the Board regulations, and unreasonable noise at Section 24

of the Act. 415 ILCS 5/9 (2002); 35 Ill. Adm. Code 201.141, 901.102(a), (b), 901.104, 900.102;

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6

415 ILCS 5/24 (2002). Boughton argues that Ms. Patterman has not produced evidence

supporting any of these allegations.

Permit and Numeric Noise Violations

Boughton contends that Ms. Patterman’s claim under Section 9 of the Act is vague.

Boughton contends Ms. Patterman has not alleged, and no witness has testified to, any permit

violation under Section 9(b) of the Act. Nonetheless, Boughton maintains that should the Board

find an alleged violation of Section 9(b), the Board should also find summary judgment in its

favor.

Next, Boughton claims Ms. Patterman has presented absolutely no evidence of a

regulatory violation of any numeric emission limitation under Section 901.102 or 901.104 of the

Board’s regulations.

Section 901.102(a) and (b) prohibit the emission of sound during daytime and nighttime

hours, respectively, from any property-line-noise source located on Class C land to any receiving

Class A land. Section 901.104 prohibits the emission of “impulsive sound” from any receiving

Classs C land when measured on any Class A land.

Boughton argues that the survey notes do not demonstrate a numeric violation. Boughton

argues that, in fact, the notes themselves state the protocol used was to conduct a “rough

compliance test” and not measured based on Leq averaging and a reference time of one hour as

required by the Board’s numerical noise regulations.

Regardless, Boughton contends the survey notes conclude that daytime limits were not

being violated. The notes also conclude that nighttime limits could be violated were Boughton

to operate during nighttime hours. However, Boughton maintains it does not operate during

nighttime hours. To the extent that Ms. Patterman made sound measurements, she states that she

followed no formal procedures in recording them. Accordingly, because Ms. Patterman has

presented no sound measurements taken in accordance with Board numerical noise regulations,

Boughton argues the Board should grant summary judgment in its favor under Sections

901.102(a), (b) and 901.104 of the Board regulations.

Nuisance Noise and Air Violations

Boughton states that in a claim for nuisance noise and air pollution violations, the issue is

whether noise and dust emissions have “unreasonably interfered” with the complainant’s

enjoyment of life. Mot. at 10-11. Boughton claims that Ms. Patterman has failed to present

evidence that Boughton’s noise and air emissions are unreasonable or that emissions from the

facility have caused an unreasonable interference with her enjoyment of life. Boughton contends

that determining whether emissions are unreasonable requires an examination of the Section

33(c) factors, and a review of the evidence shows that Ms. Patterman’s allegations are not

supported by evidence of unreasonable emissions. Boughton contends the evidence

overwhelmingly favors Boughton even if viewed in a light most favorable to Ms. Patterman.

Accordingly, Boughton concludes it is entitled to judgment in its favor on all allegations of

nuisance noise and air pollution. Mot. at 12.

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7

Boughton proceeds through an analysis of the 33(c) factors, ultimately concluding that

while it does not dispute an interference of noise and dust, Ms. Patterman has not established that

the interferences are unreasonable.

MS. PATTERMAN’S RESPONSE

Ms. Patterman argues that the question under review is whether Ms. Patterman has

presented

prima facie

evidence establishing the elements of her claim, and whether in response,

Boughton has presented uncontradicted facts that would entitle Boughton to judgment as a

matter of law. Resp. at 3; citing Estate of Stewart

, 236 Ill. App. 3d at 7-8. Ms. Patterman

continues that a Section 33(c) analysis is premature at the summary judgment stage and that she

is not obligated to introduce evidence on each of the Section 33(c) factors. Resp. at 3; citing

Loschen v. Grist Mill Confections, Inc.,

PCB 97-174 (Sept. 18, 1997). Ms. Patterman contends

she intends to present facts and testimony regarding Boughton’s noise and dust emissions at

hearing.

Ms. Patterman’s primary argument is that Boughton has not met its burden of producing

uncontradicted facts on each of Ms. Patterman’s alleged violations. Resp. at 4. Ms. Patterman

contends that Boughton focuses only on whether the alleged noise and dust emissions are

unreasonable. Ms. Patterman continues that the issue of unreasonableness is a question of fact

that should be decided after hearing where she may present facts relating to the Section 33(c)

factors. Resp. at 5; citing Loschen

, PCB 97-174. Ms. Patterman argues that under the summary

judgment standard, the Board must construe the evidence liberally in her favor. Resp. at 5.

Ms. Patterman argues that she has adequately alleged violations of the Act and Board

regulations. Resp. at 6-7. Regarding her five witnesses, Ms. Patterman claims they have

testified to the existence of noise and air emissions as well as the substantial interference the

emissions have caused in their daily lives. Resp. at 6.

Ms. Patterman further states that Boughton is not entitled to summary judgment because

material issues of fact remain concerning the severity and reasonableness of dust and noise

emissions. Resp. at 7. Ms. Patterman addresses the relevant witness testimony with respect to

both dust and noise in turn.

BOUGHTON’S REPLY

In reply, Boughton reiterates that for the purposes of summary judgment, the only issue is

whether the facts that Ms. Patterman has set forth through her own deposition testimony and that

of her witnesses are sufficient to establish that Boughton caused both nuisance noise and air

pollution. Reply at 4. Boughton states it does not dispute Ms. Patterman’s or her witnesses’

observations. Boughton specifically contests two of Ms. Patterman’s arguments as legally

incorrect: the burden of proof and ripeness of this matter for summary judgment.

Id

. In

summary, Boughton argues that discovery is complete, this matter is ripe for summary judgment,

and that in light of the evidence presented, the Board should grant judgment in its favor.

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8

Boughton argues it is not premature to consider the Section 33(c) factors. Further,

Boughton contends that Ms. Patterman’s burden as the complainant is not merely to prove an

interference by dust and noise, but to present evidence of an unreasonable interference; an

essential element of her claims under both Section 9(a) and Section 24 of the Act.

Boughton states that discovery is complete as of May 2, 2003, and contrary to her

contentions, Ms. Patterman cannot present additional evidence at hearing that was not available

during discovery. Reply at 5, 6; citing Colls v. City of Chicago

, 212 Ill. App. 3d 904, 954, 571

N.E.2d 951 (1st Dist. 1991). Boughton reasons that to allow complainants to not produce

evidence during discovery on the essential elements of their claims would render the discovery

process an exercise in futility. Reply at 6.

Regarding burden of proof, Boughton concedes Ms. Patterman is correct that she does

not have the burden of proving all of the Section 33(c) factors. Reply at 8; citing Processing &

Books v. PCB, 64 Ill. 2d 68, 75-77; 351 N.E.2d 865 (1985). However, Boughton emphasizes

that Ms. Patterman does have the burden of proving all essential elements of the alleged air and

noise pollution violations. Incinerator

, 59, Ill. 2d at 300. As stated above, here, Boughton

argues that unreasonableness is an essential element of both claims. Boughton again addresses

each of Ms. Patterman’s alleged claims and argues there is no genuine issue of material fact as to

any of them. Reply at 9.

DISCUSSION

The Board grants Boughton’s motion for summary judgment on the alleged permit and

regulatory claims, but denies Boughton’s motion on the nuisance noise and air pollution

allegations. The Board finds summary judgment is inappropriate here where there remain

genuine issues of material fact and Boughton has not demonstrated it is entitled to summary

judgment as a matter of law.

In the original complaint, Ms. Patterman alleged a violation of Section 9 of the Act

without specifying a subsection. In the motion for summary judgment, Boughton argues that

should the Board find that Ms. Patterman alleged violations of both Sections 9(a) and (b) of the

Act, it is entitled to judgment under both sections. As discussed above, Section 9(a) prohibits

causing or allowing air pollution in violation of any Board regulation or standard. 415 ILCS

5/9(a) (2002). Section 9(b) prohibits the construction, installation, or operation of any

equipment that causes or is designed to prevent air pollution without, or in violation of, an

Agency-issued permit. 415 ILCS 5/9(b) (2002).

In her response, Ms. Patterman alleges only a violation of Section 9(a) of the Act. Resp.

at 8. The Board finds Ms. Patterman referenced no other subsection of Section 9 of the Act in

the past 5 years of pleadings, throughout discovery, or in her response to Boughton’s motion for

summary judgment. The Board will not assume allegations where none have been plead.

Therefore, summary judgment is not appropriate with respect to Section 9(b) of the Act because

the Board finds that Ms. Patterman has not plead any such allegation.

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9

The Board finds that Boughton has proven that no genuine issues of material fact exist

with respect to the alleged numerical noise limits and that Boughton is entitled to judgment as a

matter of law on those claims. As Boughton states, the Board finds no noise log prepared by Ms.

Patterman in the record. Further, Ms. Patterman admits that when recording noise

measurements, she followed no formal procedures, as required by Board regulations, to establish

daytime and nighttime numeric noise violations or impulsive sound numeric violations.

Accordingly, the Board finds Boughton is entitled to summary judgment on the alleged

violations of Sections 901.102(a), (b) and 901.104 of the Board regulations.

In nuisance noise and air enforcement proceedings, the threshold issue is whether the

sounds have caused an interference with the complainants' enjoyment of life or lawful business

activity. Interference is more than the ability to distinguish sounds attributable to a particular

source. The sounds must objectively affect the complainant’s life or business activities.

See

e.g

., Village of Matteson v. World Music Theatre Jam Prod., LTD and Gierczyk Development,

Inc., PCB 90-146 (Apr. 25, 1991); Katsak v. St. Michael's Lutheran Church, PCB 89-182 (Aug.

30, 1990); Zivoli v. Dive Shop,

PCB 89-205 (Mar. 14, 1991). Further, the complainant bears the

burden of persuasion on the essential elements of the alleged violations. 415 ILCS 5/31(e)

(2002).

The Board finds that summary judgment on the nuisance noise and air pollution

allegations at this time is not appropriate. It is undisputed, and the parties’ motions and

affidavits show, that there exist interferences from both noise and air pollutants. If the Board

finds that a respondent's air contaminants or sound emissions have interfered with the enjoyment

of life, the Board then considers the factors set forth in Section 33(c) of the Act (415 ILCS

5/33(c) (2002)) to decide whether the interference is unreasonable, so as to constitute an air

pollution or

nuisance noise violation. Wells Mfg Co. v. PCB, 73 Ill. 2d 226, 383 N.E.2d 148

(1978); Mystic Tape, Div. of Borden, Inc. v. PCB

, 60 Ill. 2d 330, 328 N.E.2d 5 (1975);

Incinerator, Inc. v. PCB

, 59 Ill. 2d 290, 319 N.E.2d 794 (1974).

Boughton moved for summary judgment on the basis that even if Boughton caused noise

and air emissions that interfered with Ms. Patterman’s enjoyment of life, the record did not show

that the interferences were unreasonable. In reviewing the pleadings and discovery, the Board

finds that genuine issues of material fact exists regarding the extent and reasonableness of the

interferences by noise and dust emissions.

Regarding dust, Ms. Patterman’s witness, Ms. Lisa Collins testified in her deposition that

the dust caused her to sell her house and move from the River Run property. Resp. at 9. Mr.

Donald Boudreau testified that he keeps the windows of his house closed in the spring and

summer in the front and back of the house because the dust is too great. Resp at 11. Ms.

Carlene Jenkins stated that her family doesn’t use the backyard because of the dust in her

deposition. Resp. at 12. Finally, in her deposition, Ms. Patterman testified that dust accumulates

on the furniture, kitchen and bathroom counters, and tables, and that she can rarely open her

windows because of the dust.

The testimony regarding noise also reveals genuine issues of material fact. Ms. Jenkins

testified in her deposition that the noise from blasts at Boughton woke her daughter. Resp. at 15.

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10

Mr. Boudreau testified that the noise has gotten apparently louder, and that the noise wakes his

children. Resp. at 18, 19. Therefore, the extent of the noise and dust from the facility and the

impact it has on the complainant continue to pose genuine issues of material fact. Accordingly,

the Board denies summary judgment as to the allegations of nuisance noise and air pollution

because genuine issues of material fact exist and Boughton has failed to demonstrate it is entitled

to summary judgment as a matter of law.

CONCLUSION

The Board accordingly grants Boughton’s motion for summary judgment with respect to

the alleged numerical noise violations, Sections 901.102(a), (b) and 901.104 of the Board’s

regulations. 35 Ill. Adm. Code 901.102(a), (b), 901.104. The Board denies respondent’s motion

for summary judgment with respect to the nuisance noise and air violations, Sections 9(a) and 24

of the Act and Sections 201.141 and 900.102 of the Board’s regulations, and directs the parties

to proceed to hearing on those issues and the issue of remedy, if any. 415 ILCS 5/9(a) (2002),

24; 35 Ill. Adm. Code 201.141, 900.102. The Board directs its hearing officer to expeditiously

schedule and conduct hearing on the remaining contested issues.

IT IS SO ORDERED.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board

adopted the above order on May 6, 2004, by a vote of 5-0.

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board