RECE~VED
CLERK’S OFHCE
BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
~
162004
STATE OF
ILUNOIS
GINA
PATTERMANN,
)
Pollution Control Board
)
Complainant,
)
)
v.
)
PCBNo. 99-187
)
(Citizens Enforcement
-
Noise, Air)
BOUGHTON TRUCKING AND
)
MATERIALS, INC.,
)
)
Respondent.
)
NOTICE OF FILING
TO:
See Attached Certificate of Service
Please take notice that on June 16, 2004,1 filed with the illinois Pollution Control Board
an original and nine copies of this Notice ofFiling and the attached Motion for Reconsideration,
copies of which are attached and hereby served upon you.
Dated: June 16, 2004
BOUGHTC~4TRUCKING AND MATERIALS, INC.
By:________
Oneo~it~Atorneys
Patricia F. Sharkey, Esq.
Kevin G. Desharnais, Esq.
Mark R. Ter Molen, Esq.
Jaimy M. Levine, Esq.
MAYER, BROWN, ROWE & MAW LLP
190 South LaSalle Street
Chicago, Illinois 60603
(312) 782-0600
THIS DOCUMENT HAS BEEN PRINTED ON RECYCLED PAPER
CERTIFICATE OF SERVICE
Patricia F. Sharkey, an attorney, hereby certifies that a copy of the attached Notice of
Filing and Motion for Reconsideration was served on the persons listed below by First Class
U.S. Mail, proper postage prepaid, on June 16, 2004.
Bradley Halloran
Illinois Pollution Control Board
100 West Randolph Street
Chicago, IL 60601
(Courtesy Copy)
Michael S. Blazer
Matthew E. Cohn
The JeffDiver Group, LLC
1749 S. Naperville Road, Suite #102
Wheaton, IL 60187
(U.S. Mail)
P tri~aF. Sharkey
Patricia F. Sharkey
Attorney for Respondents
Mayer, Brown, Rowe & Maw LLP
190 South LaSalle Street
Chicago, Illinois 60603
312-782-0600
THIS DOCUMENT HAS BEEN PRINTED ON RECYCLED PAPER
CLERK’S OFFICE
BEFORE THE
JUN 162004
ILLINOIS POLLUTION CONTROL BOARD
STATE OF ILLiNOIS
Pollution Contro’ Board
GINA PATTERMANN,
)
Complainant,
)
PCB 99-187
)
v.
)
(Citizen Enforcement
—
)
Noise, Air)
BOUGHTON TRUCKING AND
)
MATERIALS, INC.,
)
)
Respondent.
)
MOTION FOR
RECONSIDERATION
NOW COMES Respondent, Boughton Trucking and Materials, Inc. (“Boughton”), by its
attorneys, Mayer, Brown, Rowe & Maw LLP, and moves the Board for partial reconsideration of
its May 6, 2004 Order granting partial summary judgment in this matter pursuant to 35 Ill. Adm.
Code 101.520.
In support thereof, Respondent states:
1.
Respondent received the May 6, 2004 Order in this matter via facsimile from the
Hearing Officer on May 12, 2004. This motion is filed within 35 days thereafter and thus is
‘timely under 35 Iii. Adm. Code 101.520.
2.
The Board’s Order granted partial summary judgment, dismissing the regulatory
claims, but concluded that summary judgment was inappropriate for the nuisance claims.
Boughton moves the Board to reconsider its May 6, 2004 Order because the denial of summary
judgment on the nuisance claims was based on the faulty legal conclusion that there exists a
“genuine issue of material fact” which requires this matter to go to hearing. This is untrue. For
purposes of summary judgment, no issues of material fact remain in this case.
1226761.4
99556862
3.
‘
The Board’s Order repeatedly states that Boughton does not dispute the
Complainant’s or her witnesses’ observations for purposes of the summary judgment motion, but
then incongruously concludes (page 10):
“Therefore, the extent of 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 ofmaterial fact exist and Boughton has failed to
demonstrate it is entitled to summaryjudgment as a matter of law.”
4.
Respondent respectfully disagrees with the Board’s conclusion that the extent of
noise and dust and its impact on Complainant “continue to pose genuine issues of material fact.”
The question is first whether there are facts in dispute and second whether they are material. For
purposes of summary judgment, the Board is required to take Complainant’s evidence in the best
light for Complainant. Fraser v. Universities Research Ass’n, 188 Ill. 2d 444, 454 (1999). Thus,
those facts maybe deemed not to be at issue. Furthermore, any factual dispute over the level of
interference or whether or not Boughton’s operation caused the interference is
immaterial,
as a
matter oflaw,
if
Complainant’s evidence does not support a finding of “unreasonable
interference”
--
the legal standard which must be proved in order to win a nuisance case under
the Environmental Protection Act. 415 ILCS
5/3.02;
415 ILCS 3.06; 415 ILCS 5/24; 35 ill.
Adm. Code 900.102; Boughton’s Motion for Summary Judgment (“Motion”) at 2-4; Boughton’s
Reply to Complainant’s Memorandum in Response to Motion for Summary Judgment (“Reply”)
at 1-4.
5.
Disputes over immaterial facts are insufficient to preclude summary judgment:
“Only disputes over facts that might affect the outcome ofthe suit under the governing law will
properly preclude the entry of summary judgment. Factual disputes that are irrelevant or
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1226761.4 99556862
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unnecessary will not be counted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct.
2505, 91 L. Ed. 2d 202 (1986). Also see, e.g. Klitzka v. Hellios, No. 2-03-0334, 2004 WL
1109781, at *6 (2d Dist. May 17, 2004) (affirming summary judgment for defendant despite
immaterial factual disputes); First Ill; Bank & Trust v. Galuska, 255 III. App. 3d 86, 90-91 (1st
Dist. 1993) (holding that summary judgment for defendant was appropriate where only factual
issues raised by Complainant were immaterial to cause of action); An issue offact is not
material, even if disputed, unless it has legal probative force as to the controlling issue.” First of
Am. Bank, N.A. v. Netsch, 166 ill. 2d 165 (1995).
In ruling on motions for summary judgment, facts are material if they constitute a legal
defense, or if theirexistence ornonexistence might affect the result ofthe action, or if the
resolution ofthe issue they raise is so essential that the party against whom it is decided cannot
prevail. On the other hand, a factual issue that is not necessary to the decision is not material
within the meaning of the rules governing summary judgment and a motion for summary
judgment may be granted without regard to whether it is in dispute.” ~
1OA Charles Alan
Wright, Arthur R. Miller, Mary Kay Kane, Federal Practice and Procedure
§
2725 (3ded. 1998).
6.
As stated above, for purposes ofthis Motion for Summary Judgment, the Board
can and should assume that the noise and dust impacts on complainant are just what
Complainant’s objective factual evidence indicates
—
no more, no less.’ Thus, the extent of dust
and noise and its impact on Complainant does not pose an issue of material fact forpm-poses of
this motion. Furthermore, on the reasonableness ofBoughton’s emissions, Complainant has
presented no evidence contradicting Boughton’ s witnesses’ affidavits and the other evidence
While Complainant will need to prove every element of her claim if this matter goes to hearing, for purposes of
summary judgment, the Board may assume that the evidence Complainant presented in the course of discovery
—
not
the unsupported claims and allegations
—
is fact.
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1226761.4 99556862
3
presented with the Motion for Summary Judgment. Thus, the Board’s conclusion that issues of
material fact remain is incorrect.
7.
No new material facts regarding these impacts will be generated at hearing. As the
Board recognized in its May 6, 2004 order as well as in its prior orders of August 7, 2003 and
September 4, 2003, discovery is now closed and all ofthe evidence of these impacts that will be
admissible at hearing is already before the Board. Moreover, to deny summary judgment to allow
a complainant against whom summaryjudgment is sought to bring in more evidence afterthe
close ofdiscovery is legally improper and defeats the purpose ofboth discovery and Summary
Judgment. Motion at 3; Reply at 4-8. ~ ~
Meredith v. Principi, No. 00 C 2476, 2001 WL
856283, at *1 (E.D. Ill. July 27, 2001) (stating that a “complainant cannot wait until she sees a
defendant’s motion to then conduct unilateral discovery with the expectation that such testimony
could be used to fend off summary judgment”); Coils v. City of Chicago, 212 Ill. App. 3d 904,
954 (1st Dist. 1991) (holding “that fractional discovery and fractional disclosure are not to be
tolerated”).
8.
Given this fact, there is nothing more to be learned about the extent of noise and
dust impacts on Complainant by going to hearing. What remains is not more fact-finding on
those impacts, but rather the determination of whetherthose impacts, taken in the best light for
the Complainant for purposes of this motion, are “unreasonable.” This is a legal issue to be
decided based on all of the facts before the Board under the standard in Section 33(c).
9.
The Complainant has not
carried, and cannot carry, her burden of proofbecause
the level of impact she has demonstrated in the evidence provided during discovery (regardless
ofwhether it can be proved at hearing) does not rise to the level of “unreasonable interference”
when the Board considers the uncontradicted evidence on all-of the factors stated in Section
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1226761.4 99556862
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33(c)(i) through (v). Thus, taken in the best light forComplainant, the impacts testified to by
Complainant’s witnesses in deposition are not facts which, if proven at hearing, will make a
difference in the outcome of this case. If Complainant has no likelihood of success ofthe merits,
summaryjudgment is appropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)
(holding that summary judgment is appropriate if no issue ofmaterial fact exists warranting a
trial on the merits); Safeway Ins. Co. v. Hister, 304 Iii. App. 3d 687, 697 (1st Dist. 1999)
(upholding summary judgment in favor of the defendant when Complainant failed to rebut
motion with any evidence).
10.
The concept of a “nuisance” and “unreasonable interference” is premised on the
fact that what is reasonable in one case, may not be so in another. Great Atlantic & Pac. Tea
Co., Inc. v. LaSalle Nat’l Bank, 77 Ill. App. 3d 478, 485 (1st Dist. 1979) (stating that “what is
an unreasonable use of one’s property.
. .
to constitute a private nuisance under the
circumstances is determinedby weighing” several factors, and the “weight that each factor is
accorded is relative to the circumstances ofthe case”). Certainly cases may arise in which the
level of impacts from a facility are so great that nothing else matters, e.g. where the nuisance
rises to the level of being a
nuisance per Se.
But a review ofthe Complainant’s witnesses’
transcripts and other evidence in the record “taken in the best light for the Complainant” make it
clear that this is not a case involving a
nuisance per se.
Rather, this is a standard nuisance case
which requires a balancing ofthe rights of the parties and of society as a whole.
11.
Nuisance cases focus not only on the level of impact, but also on whether the
impacts were foreseeable by the complainant, whether the source has made all reasonable efforts
to mitigate the impacts, whether the land use is appropriate and whetherthe source is of social
value. These considerations are incorporated in the Section 33(c). On the one side of the scale
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1226761.4 99556862
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are the impacts that Complainant and her witnesses allege to be emanating from the Boughton
quarry. On the other side are the factors as to reasonableness.
12.
In the testimony highlighted by the Board Order (p. 9-10), Complainant’s
witnesses described dust on lawns and furniture if windows are not kept closed and blasting
noise events that wake children sleeping during daytime hours; the latter, of course, being events
that it is undisputed occur for only a few seconds once ortwice a week during daytime hours.
Additional elaboration on these alleged impacts by witnesses isn’t going to change the nature of
the impacts and by any objective measure they are not extreme. Charter Hall v. Overland, PCB
98-91, Slip Op. (Oct.1, 1998) (To be deemed “unreasonable interference” sounds from a source
must objectively affect enjoyment of life, must substantially and frequently cause such
interference, and must be beyond minor or trifling annoyance or discomfort.)
13.
On the other side of the scale, there are facts that point to the reasonableness of
the alleged impacts. The facts before the Board right now demonstrate that this is a case in
which the Complainant “moved to the nuisance” and even made a living selling homes to others
on property adjacent to the alleged nuisance. The Complainant herself admits this.
See
Pattermann Deposition, Attach 7, pp.5, 9. Also see Motion for Summary Judgment, p. 21- 22,
and 31-34; Szepelak Affidavit (Attach. 2); McCann & Associates Study, Attach. 16 (including
aerial photographs depicting construction ofRiver Run subdivision adjacent to pre-existing
quarry operations.).
In addition, the evidence is clear that the quarry is an appropriate land use for the area.
See Motion for Summary Judgment, pp. 31- 34, SzepelakAffidavit (Attach. 2); McCann &
Associates Study, Attach. 16 (including aerial photographs depicting multiple pre-existing
quarry operations in the area.)
In fact, the Illinois Appellate Court ruled that
this very quarry
is
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1226761.4 99556862
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the “highest and best use” of the property it sits on.
See Boughton Trucking and Material, Inc. v.
County of Will, 112 ill. App. 3d 26, 32-33 (3dDist. 1983) and Motionfor Summary Judgment p.
32.
The Property Value Impact Study preparedby Boughton’s expert witness, Michael McCann,
demonstrates that the values ofthe homes in Complainant’s subdivision haven’t gone down;
rather, they have increased at a greater rate than those ofthe other premier subdivision in
Naperville.
See Motionfor Summary Judgment. 26-27 and the McCann & Associates Study,
Attach. 16..
Moreover, Complainant does not dispute the study and admits that the quarry has
had no adverse effect on her property value.
See Pattermann Deposition, p.113, Attach. 7.
No activities at the quarry have changed which would cause an increase in emissions
since Complainant and her witnesses bought their homes.
See Motionfor Summary Judgment,
pp. 34-44, Aerial photos in Attach. 16 (depicting same equipment in same location except
quarryface has movedfurther away from the subdivision), and SzepelakAffidavit, Attach. 12.
In
fact, Boughton’ s witnesses recite numerous steps that have been taken that have reduced
emissions.
See Motionfor Summary Judgment, pp. 34-44,
Szepelak
Affidavit, Attach. 12 and
Kessen Affidavit, Attach. 13.
Complainant’s witnesses have provided no evidence of any
increase or change in activity at the quarry, nor do they deny that Boughton has taken the steps it
has listed.
The Board’s May 6, 2004 order finds there is no evidence ofregulatory noncompliance.
There is also no evidence of poor quarry practices or shoddy operations. Rather, the record
shows an extensive program ofnoise and dust measures in excess of regulatory requirements that
have been taken by Boughton to ensure against dust and noise emissions that might trouble its
neighbors
—
including building a 50 foot berm which shields the subdivision, changing operating
hours, changing blasting practices, retrofitting equipment and trucks and instituting procedural
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measures.
See Motion for Summary Judgment, pp. 34-44 and Kessen Affidavit, Attach. 13.
While
Complainant might want all dust and noise in the area eliminated, she has presented no evidence
that there are any feasible additional steps that Boughton can take which would benefit her
property.
14.
The equation here yields a clear result. There are no material facts in dispute.
Based on the evidence produced in discovery and without going to hearing, the Board can and
should determine right now that this case does not involve impacts that can be characterized as a
nuisance
perse
which would outweigh any other consideration. Once the Board reaches that
conclusion, all that remains forthe Board to do in this case is to balance the evidence on the level
of the impacts alleged against the evidence on the other factors under Section 33(c) that go to the
reasonableness or unreasonableness of those impacts. All of the evidence on those points is also
•before the Board
—
and is uncontradicted.
15.
As the Complainant has no evidence contradicting the evidence presented by
Boughton on measures taken to reduce noise and dust, priority of location, highest and best use,
effect on property values, and social and economic benefit, the Respondent believes Board can
and should right now weigh the uncontradicted evidence provided by Boughton on each of these
Section 33(c) factors against the
presumptive
level of impacts described by Complainant. Any
facts in dispute are immaterial to the outcome ofthis-case-and-no-purpose will be served by
going to hearing. ~
1OA Charles Alan Wright, Arthur R. Miller, Mary Kay Kane, Federal
Practice and Procedure
§
2725 (3d ed. 1998).( A factual issue that is not necessary to the
decision is not material within the meaning ofthe rules governing summary judgment and a
motion for summary judgment may be granted without regard to whether it is in dispute.)
CONCLUSION
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1226761.4 99556862
8
The outcome in this case does not turn on any facts that are in dispute. It turns on the
evidence of the impacts which Complainant and her witnesses have put into evidence in light of
the evidence presented on the other factors. Thus, even if some facts regarding the alleged
impacts are in dispute or not completely clear, e.g.. whether Boughton’s facility is the source of
the impacts, these are not facts which are
material
to the outcome ofthis case. Rather, this is an
easy case on the facts.
For purposes ofthis Motion,
Complainant’s impact evidence should be
taken by the Board in its best light, i.e. assume Complainant’s witnesses’ factual and objective
evidence is true. On the other side ofthe equation, the movant’s evidence regarding the
reasonableness of the alleged impacts is uncontradicted by Complainant. The Board can verify
this today, without a hearing, because Complainant produced no evidence during discovery
contesting Boughton’ s ample evidence ofreasonableness under the factors in Section 33(c)(ii)-
(v).
As there are no
material
facts in dispute for purposes of this motion, this is precisely the
type of case in which Summary Judgment at the close of discovery is appropriate. Helms v.
Chicago ParkDist., 258 Ill. App. 3d 675, 679 (1st Dist. 1994).
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1226761.4 99556862
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WHEREFORE, Boughton requests that upon reconsideration the Board enter summary
judgment in favor of Respondent on the remaining nuisance allegations in the complaint.
In the alternative, if the Board, upon reconsideration continues to believe that there are
material facts in dispute, Respondent requests that the Board issue an order specifying those
facts which it believes are both material and in dispute such that the scope of the hearing can be
limited to those specific matters.
Respectfully submitted,
Boughton Trucking and Material, Inc.
~y~neo~ttomes
Patricia F. Sharkey, Esq.
Kevin Desharnais, eq.
Mark Ter Molen, Esq.
Jaimy M. Levine, Esq.
Mayer, Brown, Rowe & Maw
190 South LaSalle Street
Chicago, illinois 60603
(312) 782-0600
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1226761.4 99556862
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