ILLINOIS POLLUTION CONTROL BOARD
    July 26, 2007
    KYLE NASH,
    Complainant,
    v.
    LOUIS JIMENEZ,
    Respondent.
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    PCB 07-97
    (Citizens Enforcement - Noise)
    ORDER OF THE BOARD (by N.J. Melas):
    On March 26, 2007, Kyle Nash filed a complaint against Louis Jimenez. Nash alleges
    that Jiminez violated the nuisance noise provision of Section 24 of the Environmental Protection
    Act (Act) (415 ILCS 5/24 (2006)). Nash further alleges the source of the allegedly offensive
    noise is the wind chimes on the Jimenez’ front porch and back yard. The complaint concerns
    Nash’s property located at 1630 W. 33rd Place, Chicago, Cook County. The Jimenez property is
    located at 1628 W. 33rd Place, Chicago, Cook County. For the reasons below, the Board finds
    that the alleged violation of the Act is neither duplicative nor frivolous and accepts the complaint
    for hearing.
    Under the Act (415 ILCS 5 (2006)), any person may bring an action before the Board to
    enforce Illinois' environmental requirements.
    See
    415 ILCS 5/3.315, 31(d)(1) (2006); 35 Ill.
    Adm. Code 103. Nash alleges that Jimenez caused noise pollution in violation of Section 24 of
    the Act. According to the Nash, since August 2004 the Jimenez wind chimes have generated
    noise resulting in an unreasonable interference with the use and enjoyment of the Nash property.
    Nash alleges that “[w]henever there is any kind of breeze . . . noise can be heard incessantly 24
    hours a day often for days and days at a time”. Comp. para. 7. Nash claims the noise interferes
    with her sleep and that of her two sons, and that their health has been negatively affected in
    various ways. Nash claims to have experienced a marked loss of enjoyment of life and property,
    as well as decreased performance and productivity at home and school. (Nash and her eldest son
    work out of their home, while the other son is a college student who studies at home.) Comp.
    para. 8.
    Nash asks the Board to “enter an order that the respondent stop polluting”. Comp. para. 9.
    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) (2006).
    Section 103.212(a) of the Board’s procedural rules implements Section 31(d)(1) of the 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. Adm. Code 101.202. A complaint is
    2
    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).
    1
    The Board has not received a motion from Jimenez
    alleging that the complaint is duplicative or frivolous. 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) (2006); 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.
    2
    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) (2006). 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
    1
    By order of June 7, 2007, the Board directed Nash to file proof of service on Jimenez. The
    Board subsequently discovered that this order was unnecessary: along with her complaint, Nash
    attached a messenger service receipt indicating service was made on Jimenez March 25, 2007.
    The Board regrets any confusion or inconvenience this oversight may have caused.
    2
    The Board notes that it has also accepted for hearing today another noisy wind chime complaint
    filed by Nash simultaneously with the filing of this one: Kyle Nash v. Karen Sokolowski, PCB
    07-96 (July 26, 2006). The Board directs the hearing officer to coordinate the management and
    hearing of these cases to the extent practicable.
    3
    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 or 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 “voluntarily 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, John T. Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that
    the Board adopted the above order on July 26, 2007, by a vote of 4-0.
    ___________________________________
    John T. Therriault, Assistant Clerk
    Illinois Pollution Control Board

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