ILLINOIS POLLUTION CONTROL BOARD
August 18, 2005
LAWRENCE KEITH PADGETT and
CHARLOTTE ANN PADGETT,
Complainants,
v.
ATTORNEY’S TITLE GUARANTY FUND,
INC.,
Respondent.
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PCB 06-07
(Enforcement - Noise, Citizens)
ORDER OF THE BOARD (by G.T. Girard):
This case is before the Board on the July 15, 2005 filing of a citizens noise enforcement
complaint (comp.). Mr. Lawrence Padgett and Mrs. Charlotte Padgett (complainants) allege that
respondent Attorney’s Title Guaranty Fund (ATGF) caused noise pollution resulting from the
operation of an air conditioner unit located on the West side of ATGF’s property. ATGF is
located at 2408 Windsor Place, Champaign. For the reasons below, the Board finds that the
alleged violations of the Act and the Board’s noise rules are neither duplicitous nor frivolous and
accepts those allegations for hearing.
Under the Environmental Protection Act (Act) (415 ILCS 5 (2004)), any person may
bring an action before the Board to enforce Illinois' environmental requirements.
See
415 ILCS
5/3.315, 31(d)(1) (2004); 35 Ill. Adm. Code 103. The Padgetts allege that ATGF caused noise
pollution in violation of Section 24 of the Act and Sections 900.102, 901.102(a), and 901.102(b)
of the Board’s rules. 415 ILCS 5/24 (2004); 35 Ill. Adm. Code 900.102, 901.102(a), and (b).
According to the Padgetts, ATGF operates an air conditioner unit that generates noise resulting
in an unreasonable interference with the use and enjoyment of their property. The Padgetts
claim the noise interferes with their sleep and depresses the value of their property. The noise
occurs, the Padgett’s state, year-round and almost constantly 24 hours per day, with the greatest
frequency, volume and duration during the summer.
The Padgetts ask the Board to order respondents to cease and desist from further
violations, or in the alternative, construct a noise barrier or other device that would eliminate the
noise violations. The Board finds that the complaint meets the content requirements of the
Board's procedural rules.
See
35 Ill. Adm. Code 103.204(c), (f).
Section 31(d)(1) of the Act provides that “unless the Board determines that [the]
complaint is duplicative or frivolous, it shall schedule a hearing.” 415 ILCS 5/31(d)(1) (2004).
Section 103.212(a) of the Board’s procedural rules implements Section 31(b) of the
Environmental Protection Act. 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.
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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.
Within 30 days after being served with a complaint, a respondent may file a motion
alleging that the complaint is duplicative or frivolous. 35 Ill. Adm. Code 103.212(b). The
certified mail receipt shows ATGF was served on July 12, 2005, and to date no motions have
been filed with the Board. Further, no evidence before the Board indicates that the complaint is
duplicative or frivolous.
The Board accepts the complaint for hearing.
See
415 ILCS 5/31(d)(1) (2004); 35 Ill.
Adm. Code 103.212(a). 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).
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.
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) (2004). Specifically, the Board considers the Section 33(c) factors in
determining, first, what to order the respondent to do, if anything, to address the violation 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
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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, hereby certify that the
above order was adopted on the day of 2005 by a vote of 4-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
