ILLINOIS POLLUTION CONTROL BOARD
July 10, 2008
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):
This matter has a long history, which the Board will not repeat here. By order of
February 21, 2008, the Board allowed Kyle Nash an opportunity to amend her March 26, 2007
complaint to amend a noted deficiency. Ms. Nash filed an amended complaint (Am. Comp.) on
March 7, 2008, and on May 9, 2008 filed proof that the amended complaint was served on the
respondent Louis Jimenez on May 3, 2008
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. Respondent has not since filed a motion to dismiss
the complaint or any other filing. 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 amended complaint is
neither duplicative nor frivolous and accepts the amended complaint for hearing.
In her March 7, 2008 amended complaint, Ms. Nash alleges that Mr. Jimenez violated the
nuisance noise provision of Section 24 of the Environmental Protection Act (Act), 415 ILCS
5/24 (2006) and Section 900.102 of the Board’s noise rules at 35 Ill. Adm. Code 900.102. Am.
Comp. para. 5. According to Ms. Nash’s complaint, since August 2004 Mr. Jimenez’s wind
chimes have generated noise resulting in an unreasonable interference with the use and
enjoyment of Ms. Nash’s property. Ms. 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”. Am.
Comp. para. 7. Ms. 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. Ms. 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.) Am. Comp. para. 8. Ms. Nash asks the
Board to “enter an order that the respondent stop polluting”. Am. Comp. para. 9.
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The Board also received another noisy wind chime amended complaint filed by Ms. Nash
simultaneously with the filing of this one: Kyle Nash v. Karen Sokolowski
, PCB 07-96. The
Board is today also issuing an order in that case.
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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
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). As previously stated, on May 9, 2008 Ms. Nash filed
proof of service on the respondent on May 3, 2008. The Board has not received a motion from
Mr. 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.
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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
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The Board notes that the hearing officer currently has a status conference scheduled in this case
on July 24, 2008. Among other things, the hearing officer is directed to determine whether Ms.
Nash is renewing her November 16, 2007
pro se
motion for summary judgment “as is”, or
whether she intends to file an amended motion. If complainant does not intend to amend the
motion, the hearing officer is directed to reflect that decision in his order following the status
conference, and to set a due date for the filing of any response by Mr. Jimenez.
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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 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 10, 2008, by a vote of 4-0.
___________________________________
John T. Therriault, Assistant Clerk
Illinois Pollution Control Board
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