ILLINOIS POLLUTION CONTROL BOARD

COMPLAINT AND MOTION TO DISMISS
DISCUSSION
Motion to Dismiss
Duplicative or Frivolous
Answer
Hearing

July 22, 2004

DANIEL J. BEERS,

(Citizens Enforcement - Noise)

ORDER OF THE BOARD (by A.S. Moore):

On May 20, 2004, Daniel J. Beers filed a complaint against Dave Calhoun. The

complaint concerns alleged noise pollution from Calhoun’s “Let It Shine Car Wash” at 2115

Cherry Lane, Pekin, Tazewell County. Calhoun has moved to dismiss the complaint as

frivolous. For the reasons below, the Board denies the motion to dismiss and accepts the

complaint for hearing.

In this order, the Board first describes Beers’ complaint and Calhoun’s motion to dismiss.

Next, in ruling on the motion and deciding whether to accept the complaint for hearing, the

Board discusses whether the complaint is duplicative or frivolous. Lastly, the Board gives

Calhoun 60 days to file an answer and directs the parties to hearing.

COMPLAINT AND MOTION TO DISMISS

Under the Environmental Protection Act (A

ce Illinois’ environmental requirements.

See

415 ILCS

In this case, Beers alleges that Calhoun

ILCS 5/23, 24 (2002)) and Section 900.102 of the

900.102) by causing or allowing noise pollution

wash. Complaint at 3. According to the

dozens of times daily – 24 hours a

e pollution from every room in [his]

oy his yard and his sleep is interrupted daily.

Within 30 days after being served with a complaint, a respondent may file a motion

alleging that the complaint is duplicative or frivolous.

See

35 Ill. Adm. Code 103.212(b).

Calhoun has done so here. On June 23, 2004, Calhoun filed a motion to dismiss Beers’

complaint as frivolous. Motion at 1. Calhoun argues that the complaint fails to state a cause of

action because it does not allege (1) a violation of the Board’s Part 901 (35 Ill. Adm. Code 901)

numeric sound emission standards or (2) the land classifications under Part 901 for the car wash

or residence.

. at 2. Beers did not respond to the motion to dismiss.

DISCUSSION

Motion to Dismiss

When ruling on a motion to dismiss, the Board takes all well-pled allegations as true and

draws all inferences from them in favor of the non-movant. Dismissal is proper only if it is clear

that no set of facts could be proven that would entitle complainant to relief.

See

People v.

Peabody Coal Co., PCB 99-134, slip. op. at 1-2 (June 20, 2002); People v. Stein Steel Mills Co.,

PCB 02-1, slip op. at 1 (Nov. 15, 2001), citing Import Sales, Inc. v. Continental Bearings Corp.,

217 Ill. App. 3d 893, 577 N.E.2d 1205 (1st Dist. 1991).

Among other things, Beers alleges that Calhoun violated Section 24 of the Act and

Section 900.102 of the Board’s noise regulations. Section 24 provides that no person shall:

[E]mit 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).

Section 900.102 of the Board’s regulations states in relevant part that no person shall cause or

allow the emission of sound beyond the boundaries of his property “so as to cause noise

pollution in Illinois . . . .” 35 Ill. Adm. Code 900.102. “Noise pollution” is defined as “the

emission of sound that unreasonably interferes with the enjoyment of life or with any lawful

business or activity.” 35 Ill. Adm. Code 900.101. These provisions constitute a prohibition

against “nuisance noise.” Zivoli v. Prospect Dive and Sport Shop, Ltd., PCB 89-205 (Mar. 14,

1991).

The Board finds that Beers has adequately pled a “nuisance noise” violation. A

“nuisance noise” violation is different from a numeric noise violation, to which Calhoun refers in

his motion to dismiss. A citizen complainant may bring an enforcement action before the Board

for noise pollution based on unreasonable interference, and is not required to plead a numeric

noise violation. A complaint is frivolous if it “fails to state a cause of action upon which the

Board can grant relief.” 35 Ill. Adm. Code 101.202. Because Beers states a cause of action upon

which the Board can grant relief, the Board denies Calhoun’s motion to dismiss on this ground.

Duplicative or Frivolous

Section 31(d)(1) of the Act provides that “[u]nless the Board determines that [the]

complaint is duplicative or frivolous, it shall schedule a hearing.” 415 ILCS 5/31(d)(1) (2002);

see also

35 Ill. Adm. Code 103.212(a). A complaint is duplicative if it is “identical or

substantially similar to one brought before the Board or another forum.” 35 Ill. Adm. Code

101.202. A complaint is frivolous if it requests “relief that the Board does not have the authority

to grant” or “fails to state a cause of action upon which the Board can grant relief.”

Id.

Beers’ complaint does allege a violation of Section 23 of the Act (415 ILCS 5/23 (2002)).

Because Section 23 sets forth the General Assembly’s findings on excessive noise and states the

purpose of the Act’s Title VI on noise, Section 23 cannot be violated. The Board accordingly

strikes from the complaint the alleged violation of Section 23 of the Act as frivolous. No

evidence before the Board indicates that Beers’ complaint is otherwise frivolous or duplicative.

The Board accepts for hearing the complaint as modified by this order.

See

415 ILCS 5/31(d)(1)

(2002); 35 Ill. Adm. Code 103.212(a).

Answer

Under the Board’s procedural rules, a respondent’s failure to file an answer to a

complaint within 60 days after receiving the complaint may have severe consequences.

Generally, if a respondent fails within that timeframe to file an answer specifically denying, or

asserting insufficient knowledge to form a belief of, a material allegation in the complaint, the

Board will consider the respondent to have admitted the allegation.

See

35 Ill. Adm. Code

103.204(d).

In this case, however, Beers’ complaint failed to include the required notice to Calhoun

of the consequences of failing to timely file an answer. Section 103.204(f) of the Board

procedural rules provides:

Any party serving a complaint upon another party must include the following

language in the notice: “Failure to file an answer to this complaint within 60 days

may have severe consequences. Failure to answer will mean that all allegations in

the complaint will be taken as if admitted for purposes of this proceeding. If you

have any questions about this procedure, you should contact the hearing officer

assigned to this proceeding, the Clerk’s Office or an attorney.” 35 Ill. Adm. Code

103.204(f).

The Board further notes that Calhoun’s filing of the motion to dismiss stayed the 60-day

period for filing an answer to the complaint, which stay ends today with the Board’s ruling on

the motion.

See

35 Ill. Adm. Code 103.204(e). Under these circumstances, Calhoun has 60 days

from his receipt of this order to file an answer to Beers’ complaint.

Hearing

The Board directs the hearing officer to proceed expeditiously to hearing. Among the

hearing officer’s responsibilities is the “duty . . . to ensure development of a clear, complete, and

concise record for timely transmission to the Board.” 35 Ill. Adm. Code 101.610. A complete

record in an enforcement case thoroughly addresses, among other things, the appropriate remedy,

if any, for the alleged violations, including any civil penalty.

Initially, if the Board finds that a respondent’s 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 a

nuisance noise violation, which is alleged by Beers. Additionally, if a complainant proves an

alleged violation, the Board considers the factors set forth in Sections 33(c) and 42(h) of the Act

to fashion an appropriate remedy for the violation.

See

415 ILCS 5/33(c), 42(h) (2002).

Specifically, the Board considers the Section 33(c) factors in determining, first, what to order the

respondent to do to correct an on-going violation, if any, and, second, whether to order the

respondent to pay a civil penalty. The factors provided in Section 33(c) bear on the

reasonableness of the circumstances surrounding the violation, such as the character and degree

of any resulting interference with protecting public health, the technical practicability and

economic reasonableness of compliance, and whether the respondent has subsequently

eliminated the violation.

If, after considering the Section 33(c) factors, the Board decides to impose a civil penalty

on the respondent, only then does the Board consider the Act’s Section 42(h) factors in

determining the appropriate amount of the civil penalty. Section 42(h) sets forth factors that may

mitigate or aggravate the civil penalty amount, such as the duration and gravity of the violation,

whether the respondent showed due diligence in attempting to comply, any economic benefit that

the respondent accrued from delaying compliance, and the need to deter further violations by the

respondent and others similarly situated.

With Public Act 93-575, effective January 1, 2004, the General Assembly changed the

Act’s civil penalty provisions, amending Section 42(h) and adding a new subsection (i) to

Section 42. Section 42(h)(3) now states that any economic benefit to respondent from delayed

compliance is to be determined by the “lowest cost alternative for achieving compliance.” The

amended Section 42(h) also requires the Board to ensure that the penalty is “at least as great as

the economic benefits, if any, accrued by the respondent as a result of the violation, unless the

Board finds that imposition of such penalty would result in an arbitrary of unreasonable financial

hardship.”

Under these amendments, the Board may also order a penalty lower than a respondent’s

economic benefit from delayed compliance if the respondent agrees to perform a “supplemental

environmental project”

(SEP). A SEP is defined in Section 42(h)(7) as an “environmentally

beneficial project” that a respondent “agrees to undertake in settlement of an enforcement action

. . . but which the respondent is not otherwise legally required to perform.” SEPs are also added

as a new Section 42(h) factor (Section 42(h)(7)), as is whether a respondent has “voluntary self-

disclosed . . . the non-compliance to the [Illinois Environmental Protection] Agency” (Section

42(h)(6)). A new Section 42(i) lists nine criteria for establishing voluntary self-disclosure of

non-compliance. A respondent establishing these criteria is entitled to a “reduction in the portion

of the penalty that is not based on the economic benefit of non-compliance.”

Accordingly, the Board further directs the hearing officer to advise the parties that in

summary judgment motions and responses, at hearing, and in briefs, each party should consider:

(1) proposing a remedy for a violation, if any (including whether to impose a civil penalty), and

supporting its position with facts and arguments that address any or all of the Section 33(c)

factors; and (2) proposing a civil penalty, if any (including a specific total dollar amount and the

portion of that amount attributable to the respondent’s economic benefit, if any, from delayed

compliance), and supporting its position with facts and arguments that address any or all of the

Section 42(h) factors. The Board also directs the hearing officer to advise the parties to address

these issues in any stipulation and proposed settlement that may be filed with the Board.

IT IS SO ORDERED.

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

adopted the above order on July 22, 2004, by a vote of 5-0.

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board