THIS FILING SUBMITTED ON RECYCLED PAPER
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
WAYNE HASER,
)
)
Complainant,
)
)
v.
)
PCB No. 05-216
)
(Enforcement – Noise)
TNT LOGISTICS NORTH AMERICA
)
INC.,
)
)
Respondent.
)
NOTICE OF FILING
TO:
Ms. Dorothy M. Gunn
Bradley P. Halloran, Esq.
Clerk of the Board
Hearing Officer
Illinois Pollution Control Board
Illinois Pollution Control Board
100 West Randolph Street
100 West Randolph Street
Suite 11-500
Suite 11-500
Chicago, Illinois 60601
Chicago, Illinois 60601
(VIA ELECTRONIC MAIL)
(VIA FIRST CLASS MAIL)
(PERSONS ON ATTACHED SERVICE LIST)
PLEASE TAKE NOTICE that I have today filed with the Office of the Clerk of
the Illinois Pollution Control Board
RESPONDENT’S OBJECTION TO
COMPLAINANT’S “AMENDED COMPLAINT,” MOTION TO DISMISS
COMPLAINT AS ORIGINALLY FILED, AND ALTERNATIVE MOTION FOR
REVERSAL OF HEARING OFFICER’S ORDER,
a copy of which is herewith
served upon you.
Respectfully submitted,
TNT LOGISTICS NORTH
AMERICA INC.,
Respondent,
By:/s/ Thomas G. Safley
Dated: January 16, 2007
One of Its Attorneys
Edward W. Dwyer
Thomas G. Safley
HODGE DWYER ZEMAN
3150 Roland Avenue
Post Office Box 5776
Springfield, Illinois 62705-5776
(217) 523-4900
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JANUARY 16, 2007
CERTIFICATE OF SERVICE
I, Thomas G. Safley, the undersigned, hereby certify that I have served the
attached RESPONDENT’S OBJECTION TO COMPLAINANTS’ “AMENDED
COMPLAINT,” MOTION TO DISMISS COMPLAINT AS ORIGINALLY FILED,
AND ALTERNATIVE MOTION FOR REVERSAL OF HEARING OFFICER’S
ORDER upon:
Ms. Dorothy M. Gunn
Clerk of the Board
Illinois Pollution Control Board
100 West Randolph Street
Suite 11-500
Chicago, Illinois 60601
via electronic mail on January 16, 2007; and upon:
Bradley P. Halloran, Esq.
Hearing Officer
Illinois Pollution Control Board
100 West Randolph Street
Suite 11-500
Chicago, Illinois 60601
Mr. Wayne Haser
25763 Willowcreek Lane
Monee, Illinois 60449
by depositing said documents in the United States Mail, postage prepaid, in Springfield,
Illinois on January 16, 2007.
/s/ Thomas G. Safley
Thomas G. Safley
TNTL:002/Fil/Haser/NOF-COS – Objection to Amended Complaint
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JANUARY 16, 2007
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
WAYNE HASER,
)
)
Complainant,
)
)
v.
)
PCB No. 05-216
)
(Enforcement – Noise)
TNT LOGISTICS NORTH AMERICA
)
INC.,
)
)
Respondent.
)
RESPONDENT’S OBJECTION TO COMPLAINANT’S
“AMENDED COMPLAINT,” MOTION TO DISMISS
COMPLAINT AS ORIGINALLY FILED, AND ALTERNATIVE
MOTION FOR REVERSAL OF HEARING OFFICER’S ORDER
NOW COMES Respondent, TNT LOGISTICS NORTH AMERICA INC.
(“TNT”), by its attorneys, HODGE DWYER ZEMAN, and for its Objection to
Complainant’s “Amended Complaint,” Motion to Dismiss Complaint as Originally Filed,
and Alternative Motion for Reversal of Hearing Officer’s Order, states as follows:
I.
INTRODUCTION
1.
During the month of June 2005, six complaints were filed against TNT
before the Illinois Pollution Control Board (“Board”) alleging that TNT’s operation of a
facility in Monee, Illinois (“Facility”) results in violations of the Board’s numeric noise
standards.
2.
On December 14, 2006, TNT participated in a telephonic status
conference in the four remaining cases in which such allegations are made, PCB 05-212
(Maracic), PCB 05-213 (Neri), PCB 05-216 (Haser) and PCB 05-217 (Blouin). See
Hearing Officer Orders in these cases dated January 4, 2007.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JANUARY 16, 2007
2
3.
During this teleconference, each Complainant moved the Hearing Officer
to cancel the hearings in these matters then scheduled for December 18 – 20, 2006, and
for time to file Motions with the Board seeking leave to file amended complaints. Id.
4.
TNT objected to these motions, but over TNT’s objections, the Hearing
Officer cancelled the hearings 4 days prior to the date they were scheduled to begin. Id.
5.
In addition, the Hearing Officer granted each Complainant’s request for a
deadline by which they could seek leave of the Board to file amended complaints. Id.
6.
On January 3, 2007, in PCB 05-212 and PCB 05-213, and on January 4,
2007, in PCB 05-216 and PCB 05-217, Complainants filed documents purporting to be
Amended Complaints with the Board.
7.
However, Complainants did not simultaneously file Motions seeking leave
of the Board to file Amended Complaints.
8.
TNT was served with these “Amended Complaints” on January 2, 2007
(PCB 05-212), January 4, 2007 (PCB 05-216), and January 9, 2007 (PCB 05-213 and
PCB 05-217).
9.
TNT timely files this Objection to the “Amended Complaint” filed in PCB
05-216. TNT simultaneously is filing this same Objection in the other three remaining
Board matters noted above.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JANUARY 16, 2007
3
II.
TNT’S OBJECTION TO COMPLAINANT’S “AMENDED COMPLAINT”
A.
Complainant failed to Request and Obtain Leave to Amend his
Complaint from the Board
.
10.
Complainant failed to request leave of the Board prior to filing an
amended complaint.
11.
Section 103.206(d) of the Board’s procedural rules requires that:
If a party wishes to file an amendment to a complaint ... that sets forth a
new or modified claim against another person, the party who wishes to file
the pleading must move the Board for leave to file the pleading.
35 Ill. Admin. Code § 103.206(d). (Emphasis added.)
12.
A motion for leave to file an amended complaint under Section 103.206(d)
cannot be directed to the Hearing Officer, but must be directed to the Board. Kassella v.
TNT, PCB 06-1, at p. 2 (Ill.Pol.Control.Bd. March 16, 2006).
13.
In other cases where a complainant has submitted a filing denominated as
an “Amended Complaint” without first seeking and obtaining leave of the Board to make
such filing, the Board has stricken such filing and has ordered that any future proposed
amended complaint filed by the complainant “must be accompanied by a motion for
leave directed to the Board.” Morton F. Dorothy v. Flex-N-Gate Corporation, PCB 05-
049, at pp. 11-12 (Ill.Pol.Control.Bd. Nov. 2, 2006).
14.
Furthermore, the Hearing Officer informed Complainant both during the
December 14, 2006 telephonic status conference, and in his Order dated January 4, 2007,
that Complainant must file a Motion seeking leave of the Board to file an Amended
Complaint, and also must attach his proposed Amended Complaint to that Motion. See
January 4, 2007, Hearing Officer Order.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JANUARY 16, 2007
4
15.
Here, Complainant seeks to “file an amendment to a complaint ... that sets
forth a new or modified claim against another person” (35 Ill. Admin. Code § 103.206(d);
specifically, Complainant seeks to file an Amended Complaint that would “include a
Nuisance Complaint which can be documented and filed in addition to the Numeric
Complaint that was to be heard next week,” that is, beginning December 18, 2006.
Complainant’s Motion to Cancel Hearing And [for time to seek] Leave to Refile
Amendment to Existing Numeric Complaint, dated December 14, 2006. (Emphasis
added.)
16.
Therefore, Complainant was required to file a Motion for Leave to Amend
with the Board; Complainant, however, failed to do so.
B.
Complainant’s “Amended Complaint” is Frivolous.
17.
Even if Complainant had sought and received leave of the Board to amend
his Complaint, Complainant’s “Amended Complaint” is frivolous.
18.
First, the document purporting to be Complainant’s “Amended
Complaint” alleges that TNT has violated of Section 23 of the Illinois Environmental
Protection Act (“Act”) (415 ILCS 5/23). Complainant’s “Amended Complaint” at ¶5.
19.
With regard to an alleged violation of Section 23 of the Act, however,
“[b]ecause 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,” and the
Board thus will dismiss as frivolous an allegation that a respondent violated Section 23.
See, e.g., Daniel J. Beers v. Dave Calhoun (Let It Shine Car Wash), PCB 04-204
(Ill.Pol.Control.Bd. July 22, 2004).
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JANUARY 16, 2007
5
20.
Based upon the foregoing, the Board must strike Complainant’s
allegations here of a violation of Section 23 of the Act as frivolous.
21.
Second, Complainant’s “Amended Complaint” alleges that TNT has
violated Section 24 of the Act (“Amended Complaint” at ¶5), but this allegation also is
frivolous.
22.
The Complainant in this matter is seeking a cease and desist order; that is,
the “Amended Complaint” requests that the Board “stop the noise” from the Facility.
“Amended Complaint” at ¶9.
23.
As attested to in the Affidavit of TNT employee Steve McNeal, attached
hereto as Exhibit A, however, beginning January 22, 2007:
•
TNT will no longer lease or operate the Facility;
•
TNT will no longer have any employees present at the Facility;
•
TNT will not have any authority or control over any equipment,
operations or activities of any new tenant at the Facility;
•
TNT will not have any ability to make any changes in any
equipment located at, or any operations or activities taking place
at, the Facility.
See
Exhibit A.
24.
Rather, it is TNT’s understanding that after January 22, 2006, another
company, not related in any way to TNT, will operate the Facility. Id.
25.
According to the Act, a hearing will be scheduled unless the Board
determines that a complaint is “duplicative or frivolous.” 415 ILCS 5/31(d)(1); 35 Ill.
Admin. Code § 103.212(a).
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JANUARY 16, 2007
6
26.
According to Section 101.200 of the Board’s regulations, a complaint is
“frivolous” where the Complainant has “...made a request for relief that the Board does
not have the authority to grant….” 35 Ill. Admin. Code § 101.200; Beers, PCB 04-204
(Ill.Pol.Control.Bd. July 22, 2004).
27.
The Board has held that where a complainant alleging violations of noise
prohibitions seeks an order requiring the respondent to cease and desist from further
violations, and that respondent leaves the location at issue and no longer has the authority
to implement modifications necessary to comply with any such order, “the Board is
unable to effectively grant the relief requested,” and therefore, that “the Board must
dismiss the case as frivolous.” James M. Tonne and Jeanine F. Tonne v. Leamington
Foods, PCB 93-044, at p. 2 (Ill.Pol.Control.Bd. April 21, 1994).
28.
With TNT no longer operating the Facility after January 22, 2007, were
any cease and desist order to be issued by the Board, such order would be ineffective,
since by the time the Board issued any such order, TNT will not be in a position to
implement any changes necessary to comply with any such order, and any new operator
of the Facility, as a non-party, would not be bound by any such order (which order, in any
event, would evaluate only TNT’s actions, not the actions of any such new operator). See
Exhibit A.
29.
Once TNT leaves the Facility on January 22, 2007, TNT will file a
Supplemental Affidavit in support of this Motion attesting to the fact that it has left, and
no longer has any control of, the Facility.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JANUARY 16, 2007
7
30.
In light of the above, Complainant’s proposed “Amended Complaint” also
is frivolous to the extent it alleges a violation of Section 24 of the Act, and the Board
should strike Complainant’s proposed “Amended Complaint” for this reason as well.
III.
MOTION TO DISMISS COMPLAINT AS ORIGINALLY FILED
31.
Complainant’s original Complaint in this matter alleges that TNT’s
operation of the Facility violates numeric noise limitations contained in the Board’s rules,
and, like Complainant’s “Amended Complaint,” seeks a cease and desist order. See
Complainant’s Complaint at ¶¶5, 9.
32.
For the reasons just discussed, in light of the fact that TNT is leaving the
Facility, Complainant’s original Complaint also is frivolous, and the Board should
dismiss it. See
discussion above.
33.
In Tonne, the Board held that where the respondent left the facility at
issue, the Board would reconsider its previous finding that the complainant’s complaint
was not frivolous, and, as noted above, would find the complaint frivolous and dismiss it
on that basis. Tonne, PCB 93-044, at p. 2 (Ill.Pol.Control.Bd. April 21, 1994).
34.
Likewise, here, TNT is leaving the Facility at issue in this case, and the
Board must dismiss Complainant’s original Complaint as frivolous.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JANUARY 16, 2007
8
IV.
TNT’S ALTERNATIVE MOTION FOR REVERSAL OF THE
HEARING OFFICER’S ORDER.
35.
In the alternative, should the Board not strike Complainant’s “Amended
Complaint” and dismiss Complainant’s original Complaint as frivolous, and should
Complainant intend his Amended Complaint to assert both numeric and noise nuisance
claims, as to such numeric claims, Respondent, pursuant to 35 Ill. Admin. Code §
101.518, appeals the ruling of the Hearing Officer canceling the hearings set in these
matters and granting Complainant time to move the Board for leave to file an Amended
Complaint.
A.
Scope of Alternative Motion
36.
As discussed above, Complainant’s “Amended Complaint” alleges that
TNT’s operations at the Facility result in violations of “Section 24” of the Act. See
Complainant’s Complaint, ¶5.
37.
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.
38.
Section 24 of the Act encompasses both nuisance claims under Section
900.102 of the Board’s regulations, as well as numeric claims under Part 901 of the
Board’s regulations. Shelton v. Crown
, PCB 96-53 (Ill.Pol.Control.Bd. Oct. 2, 1997)
(“The Sheltons allege that the Crowns have violated Sections 23 and 24
of the Act and
the Board's rules at 35 Ill. Adm. Code 900.102
, 901.102(a), 901.102(b), and 901.104
.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JANUARY 16, 2007
9
Comp. at 2. These statutes and regulations prohibit noise pollution in Illinois which
exceeds specified numeric
limits or which produces nuisance noise.”) (Emphasis added.)
39.
Therefore, Complainant’s allegation that TNT’s operations violate
“Section 24” could constitute an allegation of only nuisance violations, only numeric
violations, or both; however, Complainant does not state which alleged violations he is
claiming. See
Complainant’s “Amended Complaint,” at ¶5.
40.
In the event that Complainant intends to assert only a nuisance claim
under 35 Ill. Admin. Code §900.102, the issue of a hearing on his previous numeric
claims is moot, and this alternative Motion is inapplicable.
41.
However, to the extent that Complainant intends to continue to assert, in
whole or in part, numeric claims, for the reasons discussed below, TNT moves the Board
to reverse the Hearing Officer’s Order canceling the previously scheduled hearings on
those claims.
B.
The Cancellation of the Hearings was in Error
42.
The cancellation of the hearings scheduled for December 18-20, 2007, was
in contravention of the Board’s procedural rules.
43.
First, Complainant did not file the required Motion to Cancel Hearing.
Section 101.510(b) of the Board’s procedural rules requires that
All motions to cancel a hearing must set forth a proposed date to
reschedule the hearing and must be supported by an affidavit of the person
or persons with knowledge of the facts that support the motion. The
affidavit must include the factual basis for the request to cancel and a
complete status report that describes the progress of the proceeding and
sets forth the number of cancellation requests previously granted to the
movant.
35 Ill. Admin. Code § 101.510(b).
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JANUARY 16, 2007
10
44.
Complainant here did not file any written motion to cancel the hearing
before orally asking the Hearing Officer to cancel the hearing. See
Board Docket,
Hearing Officer Order dated January 4, 2007.
45.
Rather, after
the telephonic status conference on December 14, 2006,
Complainant filed his “Motion To Cancel Hearing And [for time to seek] Leave To
Refile Amendment to Existing Numeric Complaint,” dated December 14, 2006.
However, this “Motion” did not include an affidavit as required by Section 101.510(b).
46.
For these reasons alone, the Hearing Officer should have denied
Complainant’s oral motion to cancel the hearings, and the Board should reverse the
Hearing Officer’s order canceling the hearings.
47.
Second, Complainant did not comply with Section 101.510(a) of the
Board’s rules, which governs the timing of a properly filed motion to cancel a hearing.
Section 101.510(a) states as follows:
Time to File. Unless the Board or the hearing officer orders otherwise the
hearing officer may grant motions to cancel hearings that are filed no
fewer than 10 days or, if all parties agree to the motion, 5 days before the
scheduled hearing date. The hearing officer may grant a motion filed after
the prescribed time only if the movant demonstrates that the movant will
suffer material prejudice if the hearing is not canceled.
35 Ill. Admin. Code § 101.510(a). (Emphasis added.)
48.
As stated in the rule, absent agreement, a party must move to cancel a
hearing at least 10 days prior to the scheduled date for the hearing unless the movant will
suffer material prejudice.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JANUARY 16, 2007
11
49.
In this case, the Complainant orally moved to cancel the hearing, and the
Hearing Officer in fact cancelled the hearing, over TNT’s objections, 4 days prior to the
hearing. See Hearing Officer Order dated January 4, 2007.
50.
The Hearing Officer stated in his Order canceling the hearing that the
“…complainant could possibly be materially prejudiced and that in the interests of
administrative efficiency, the hearing must be cancelled.” (Hearing Officer Order,
January 4, 2007.) (Emphasis added.)
51.
Pursuant to Section 101.510(a), absent agreement, there must be a finding
of actual material prejudice to cancel a hearing fewer than 10 days prior to the hearing.
In this case, the Hearing Officer did not even state the alleged prejudice to Complainant,
much less make such a finding. Furthermore, administrative efficiency is not
contemplated by Section 101.510 as grounds for canceling a hearing. In fact, Section
101.510 was amended to its current form by the Board in its 2000 amendments to its
procedural rules to avoid the administrative inefficiency of hearings being cancelled at
the last minute, as happened in this case. See Board Order, R00-20, at 13-14
(Ill.Pol.Control.Bd. March 16, 2000).
52.
For these reasons as well, the Hearing Officer should not have cancelled
the hearings, and the Board should reverse the Hearing Officer’s Orders doing so.
53.
Third, the actual reason for cancellation of the hearing in this matter is
Complainant’s lack of diligence. As stated in the Hearing Officer’s Order, “Complainant
represented that he recently became aware that his complaint…only alleged a numeric
noise violation…Complainant argued that to proceed with the previously scheduled
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JANUARY 16, 2007
12
hearing would be a waste of time and resources.” Order, January 4, 2007. The Hearing
Officer’s Order continues by stating, “[t]he complainant was made aware of his omission
as early as September 1, 2005…Nevertheless, the complainant motion was granted and
the hearing was canceled.” Id.
54.
Section 101.510(b) states, in pertinent part that, “[t]he hearing officer will
grant the motion only if the movant demonstrates that the request to cancel is not the
result of the movant’s lack of diligence.” 35 Ill. Admin. Code § 101.510(b). (Emphasis
added.)
55.
Complainant’s failure to plead all causes of action available in the
Complaint does not constitute “material prejudice.” Further, for this fact to be pointed
out to Complainant more than 100 days before hearing, and for Complainant to make no
effort to address the issue, can be nothing but Complainant’s lack of diligence.
56.
Given that Complainant’s stated reason for requesting that the hearing be
canceled constitutes a lack of diligence, pursuant to Section 101.510(b), the hearing
should not have been canceled.
57.
If Complainant desired to cancel the hearing in this matter, the only
method available to Complainant was voluntary dismissal of his Complaint pursuant to
Section 2-1009 of the Illinois Code of Civil Procedure.
58.
Section 2-1009 of the Illinois Code of Civil Procedure states: “[t]he
Plaintiff may, at any time before trial or hearing begins, upon notice to each party who
has appeared or each such party’s attorney, and upon payment of costs, dismiss his or her
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JANUARY 16, 2007
13
action or ay part thereof as to any defendant, without prejudice, by order filed in the
cause.” 735 ILCS 5/2-1009.
59.
The Board has noted that Section 2-1009 allows a complainant to
voluntarily dismiss a complaint filed before the Board. Gina Pattermann v. Boughton
Trucking and Materials, Inc., PCB 99-187 (Ill.Pol.Control.Bd. Feb. 17, 2005).
60.
Therefore, if Complainant continues to assert his numeric claims, TNT
alternatively moves the Board to reverse the Hearing Officer’s ruling canceling the
hearings set in these matters, and to reschedule the hearing on Complainant’s original
Complaint, absent dismissal of this matter either by the Board (see above) or voluntarily
by the Complainant.
V.
CONCLUSION
WHEREFORE, Respondent, TNT LOGISTICS NORTH AMERICA INC.,
respectfully objects to Complainant’s filing purporting to be Complainant’s “Amended
Complaint,” and moves the Board to dismiss that “Amended Complaint” and
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JANUARY 16, 2007
14
Complainant’s original Complaint as frivolous. Alternatively, TNT moves the Board to
reverse the Hearing Officer’s Order and reschedule this matter for hearing on the
Complainant’s original Complaint. Finally, TNT moves the Board to grant TNT all other
relief just and proper in the premises.
Respectfully submitted,
TNT LOGISTICS NORTH AMERICA INC.,
Respondent,
By: /s/ Thomas G. Safley
One of Its Attorneys
Dated: January 16, 2007
Edward W. Dwyer
Thomas G. Safley
Ryan E. Mohr
HODGE DWYER ZEMAN
3150 Roland Avenue
Post Office Box 5776
Springfield, Illinois 62705-5776
(217) 523-4900
TNTL:002/Fil/Haser/Objection to Amended Complaint
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JANUARY 16, 2007
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JANUARY 16, 2007
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