ILLINOIS POLLUTION CONTROL BOARD

September 1, 2005

KENNETH E. MEDEMA, Jr.,

Complainant,

TNT LOGISTICS NORTH AMERICA INC.,

Respondent.

)

PCB 05-220

(Citizens Enforcement – Noise)

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

On June 27, 2005, Kenneth E. Medema (Medema) filed a complaint against TNT

Logistics North America Inc. (TNT).

The complaint concerns sound emissions from TNT’s tire

warehouse distribution facility located at 25850 S. Ridgeland Avenue in Monee, Will County.

Medema alleges that TNT’s sound emissions exceed the Board’s numeric noise standards. For

the reasons below, the Board accepts the complaint for hearing.

COMPLAINT AND ANSWER

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. According to the complaint in this case,

trucking activity at TNT’s warehouse distribution facility is emitting noise in violation of Board

regulations. Specifically, Medema alleges that the noise comes from horns, loud speakers,

engine braking, dock plate noises, air brakes, and air horns. Medema asserts that the noise

persists “around the clock, 7 days a week.” Complaint at 3. The complaint further states that the

noise has affected Medema’s quality of life, including his ability to relax on his deck.

. at 4.

The complaint alleges that TNT is violating several provisions of the Board’s numeric

noise regulations: Section 901.102 (“Sound Emitted to Class A Land”); Section 901.103 (Sound

Emitted to Class B Land”); Section 901.104 (“Impulsive Sound”); and Section 901.106

(“Prominent Discrete Tones”) (35 Ill. Adm. Code 901.102, 901.103, 901.104, 901.106).

Medema asks the Board to order TNT to “change its hours of operation . . . [and] plant 2-3 rows

of pine trees, high enough to help absorb the sounds.” Complaint at 4. 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).

The complaint refers to respondent as “TNT Logistics.” In its August 22, 2005 answer,

however, respondent refers to itself as “TNT Logistics North America Inc.” As reflected in this

order, the Board has amended the caption of this case to reflect respondent’s full name. Future

filings must use this amended caption.

A respondent’s failure to file an answer to a complaint within 60 days after receiving the

complaint may have severe consequences. Generally, if the 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).

Here, TNT timely filed an answer on August 22, 2005. In its answer, TNT denies that it

has violated the numeric noise standards. Further, TNT pleads, as a purported affirmative

defense, that although it operates the facility to warehouse and distribute tires, TNT does not

own or operate the trucks that haul trailers of tires to and from the facility. Answer at 3-4.

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) (2004);

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.

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). TNT has filed no

motion with the Board. Nothing before the Board indicates that the complaint is duplicative or

frivolous.

The Board notes that five other citizen complaints against TNT have been filed recently

with the Board, each alleging that noise from the various trucking activities at the Monee facility

violates the same numeric noise provisions Medema alleges.

See

John and Linda Maracic v.

TNT Logistics North America Inc., PCB 05-212; Vincent and Jennifer Neri v. TNT Logistics

North America Inc., PCB 05-213; Wayne Haser v. TNT Logistics North America Inc., PCB 05-

216; Ken Blouin v. TNT Logistics North America Inc., PCB 05-217; Robert F. Kasella Jr. and

Kellie R. Kassela v. TNT Logistics North America Inc., PCB 06-1. As explained below, none of

these complaints, however, is duplicative of the others.

Medema and the citizen complainants in the other five noise enforcement actions pending

against TNT allege violations of

numeric

noise standards, not violations of the

nuisance

noise

prohibition. The Board has held that with alleged violations of a

numeric

noise standard, sound

measurements of the alleged property-line-noise-source are required and must be taken with

“strict adherence to applicable measurement procedures.” Charter Hall Homeowner’s

Association v. Overland Transportation System, Inc., PCB 98-81 (Oct. 1, 1998) (complainant’s

noise consultant’s sound measurements failed to comply with measurement procedures for

numeric noise standards);

see also

35 Ill. Adm. Code 900.103(b).

It is the complainant in an

enforcement action who has the burden of proof.

See

415 ILCS 5/31(e) (2004). It is therefore

A rulemaking is pending before the Board that would amend the sound measurement

procedures.

See

Proposed New and Updated Rules for Measurement and Numerical Sound

Emission Standards Amendments to 35 Ill. Adm. Code 901 and 910, R03-9.

the complainant, or more typically its noise consultant, who must accurately measure sound

emissions in a case of alleged numeric noise violations.

See

e.g.

, Charter Hall, PCB 98-81. In

contrast, with an alleged violation of the

nuisance

noise prohibition (35 Ill. Adm. Code 900.102),

sound measurements are not required, and complainants usually rely instead on testimony to try

to prove a violation.

Most significant for this discussion, in attempting to demonstrate a numeric noise

violation, the sound measurements must be taken

within the receiving land

See

e.g.

, 35 Ill.

Adm. Code 901.102(a) (“emission of sound . . . when measured at any point within such

receiving Class A land”). Accordingly, each of the six citizen complaints against TNT is

alleging numeric noise violations at a

different

property. Thus, even if a violation of a numeric

standard is proven at one receiving property, there may not be an exceedence of that standard at

another receiving property. The complaints against TNT are therefore not duplicative of each

other.

HEARING

The Board accepts Medema’s complaint for hearing.

See

415 ILCS 5/31(d)(1) (2004); 35

Ill. Adm. Code 103.212(a). The Board directs the hearing officer to proceed expeditiously to

hearing. In separate orders, the Board today is accepting the other five complaints against TNT

for hearing.

See

Maracic, PCB 05-212 (Sept. 1, 2005); Neri, PCB 05-213 (Sept. 1, 2005); Haser,

PCB 05-216 (Sept. 1, 2005); Blouin, PCB 05-217 (Sept. 1, 2005); Kasella, PCB 06-1 (Sept. 1,

2005). The Board directs the hearing officer to manage these cases so as to allow for the most

efficient use of the resources of the Board and the parties.

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 come into compliance.

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 September 1, 2005, by a vote of 5-0.

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board