Lunch at Ophelia's or Summertime and the A/C is Humming

The third Wednesday of the month rolled around with the inevitability of a fourth Bulls' championship. Stuart - forty-two, thin as an oboe with a hairline that was receding like high tide on the Jersey shore - was to met Maurie - same age, shaped more like a French Horn with a well-polished dome - for lunch at Ophelia's, a restaurant on Washington Street in Waukegan, Illinois known for its foods from Mexico. The monthly luncheon provided a chance for the old friends to share a bite and talk about law and life.

Stuart found a parking spot on the north side of Washington Street, plugged the meter, and then darted south through traffic and into the vestibule of Ophelia's. The restaurant had once been a hole in the wall on south Genesee Street but now occupied two full store fronts. Ophelia and her restaurant now sported an air of prosperity which had not been in evidence during the early days.

Though only seconds past noon, the dining area was packed with a diverse crowd which included lawyers, insurance agents and members of various landscaping crews. Stuart was given a booth along the eastern wall beneath a woven Mexican tapestry the color of pomegranates. He ordered an iced tea and nibbled crisp chips which he dipped in salsa. The salsa tasted faintly of garlic which complimented the fresh cilantro.

Minutes later, Maurie pushed his way through the door dragging a handkerchief across his perspiring brow. He wore seersucker which was beginning to show stains of sweat. He pocketed the handkerchief as he joined Stuart in the booth and with his now free hand plucked a chip from the basket and scooped up two tablespoons of salsa. Before swallowing, he began.

"You won't believe it." he said. "I've just been served with a Complaint. It's pending before the Illinois Pollution Control Board and alleges that I am the source of noise pollution. Can you believe that? Of all things, me, a source of noise pollution!"

"Well," Stuart began, "I know you blast John Phillip Sousa and the 1812 Overture on the Fourth of July. And, I remember when your Mustang's muffler was shot, you and I got a ticket for disturbing the peace while cruising the back lanes of Lake Forest looking for the Dole fund-raiser. But I find it hard to believe that you are a source of noise pollution. What exactly is alleged in the Complaint?"

"The Complaint alleges that my beloved air-conditioner, the five ton unit I installed six years ago, is a 'property line noise source.' It says I am in violation of Sections 23 and 24 of the Illinois Environmental Protection Act and certain regulations promulgated pursuant to the Act. The Complainants are seeking civil penalties, attorney's fees, and an injunction requiring me to relocate my air conditioner. All this because I like my bedroom in July to be as cold as a morgue! What's the story with this Pollution Control Board? What is it and do you think it can order me to move my air conditioner?"

At that moment, Ophelia's son arrived. "Good afternoon, gentlemen. Ready to order?" he inquired. Familiar with the menu, Stuart readily ordered the chicken enchiladas con mole. Maurie followed fast on heals ordering his usual, El Combanacion Mexico City. The combination plate consisted of a cheese enchilada, beef taco and chicken tostada. Maurie supplemented this with a side of guacamole.

"Getting back to your questions, Maurie," Stuart began. "The Illinois Pollution Control Board is one of those rare animals you read about in your class on Administrative Law. It's a Board consisting of a chairperson and six members appointed by the Governor. Some, but not all, of the members are lawyers. The Board serves a quasi-legislative and quasi-judicial function. For instance, the Board holds hearings and makes findings of fact before passing regulations in such diverse fields as air, land, water and noise pollution. The Board, however, also hears enforcement cases brought either by private citizens or the Illinois Attorney General. It has the authority to impose civil penalties and to order a party to cease and desist from violations of the Illinois Environmental Protection Act or any regulations promulgated thereunder."

"If this Board is such a big deal, how come I've never heard of it?" asked Maurie.

"Unless you practice in the field of environmental law, the Board is like gravity - you don't think much about, but it has a big impact on your life." replied Stuart.

"Gravity schmavity. I want to know what the Board says about noise pollution?" It was apparent that Maurie was growing increasingly hungry and irate.

"The Board distinguishes between residential and commercial noise sources. It says that in a residential context, you can make as much noise as you want so long as the noise doesn't unreasonably interfere with your neighbor's enjoyment of their life or their lawful business or activity. In a commercial context, the Board has established actual numeric standards. A commercial or industrial enterprise cannot emit sound which at its property line during the daytime hours which, at 1000 hertz for example, is in excess of 45 decibels. This same enterprise must restrict sound at the property line to 35 decibels at 1000 hertz between the hours of 10:00 p.m. and 6:00 a.m. If the Board concludes that a commercial or industrial enterprise has exceeded the numeric limits, then it can order the enterprise to takes steps to reduce the noise. Similarly, if the Board determines that your air conditioner unreasonably interferes with your neighbor's ability to sleep or enjoy summer nights on her patio, it may order you to move your air conditioner if that is the only way in which to reduce noise levels."

Their orders arrived and the two men tore into their plates. The mole with its faint taste of chocolate was to Stuart's liking and the salsa verde smeared over the entire combination plate satisfied Maurie. Between mouthfuls, he said, "My neighbor claims to have noise measurements. What can she do with them?"

"It depends." Stuart said. "Noise measurements are like breathalyser readings, they have to be obtained using the proper methodology before the trier of fact will consider them. If they were properly obtained, then the Board may consider the results of the measurements to corroborate your neighbor's complaint. If the measurements show that the noise levels are above those levels established by the Board for commercial or industrial operations, the Board may, but is not required, to take action."

"What about the fact that my air conditioner was right where it was before my neighbor decided to build her two story addition right next to my unit? The Board should consider who was there first, shouldn't it?"

"Yes. Priority of location is a consideration but not an absolute defense. The Board will consider the same factors a court would consider in a nuisance case. These factors include the following: character and degree of injury; social or economic value of the source; suitability or unsuitability of the source (including the question of priority of location); technical practicability and economic reasonableness of control; and, subsequent compliance, if any. The Board throws all of these factors into a hat, stirs, allows it all to settle, and then four to six months later issues an opinion and order."

The meal was finished and afternoon appointments beckoned. The men downed the remains of their iced teas and threw their tips on the table. Maurie was still pensive.

"So what do you think the Board will do in my case?"

"Is the unit loud?" asked Stuart.

"Yes." replied Maurie.

"Is it close to the property line?"

"Yes."

"Have you done anything to try to reduce the sound?"

"No." confessed Maurie.

"In an opinion issued on May 2, 1996 (IPCB 96-22) and involving similar facts, the Board ordered a guy to relocate his air conditioning unit; cost him six bills."

"Can we beat this thing?" Maurie asked.

Stuart ducked the question. "Did you see the cover of last month's ABA Journal? The lead article was 'The Lawyer Turns Peacemaker.' I recommend you talk with a qualified heating and air conditioning contractor and an acoustical engineer and come up with an affordable plan to reduce the noise. With plan and cost estimate in hand, invite your neighbor for lunch and see if she'll pay for half of the costs of implementation. If she says, "Yes," then next month we'll celebrate. If he says,'No,' we'll.... Well, let's just say that if she says, 'No,' we'll make an appointment. You'll come into my office. And we'll consider all options."

"Gee, Stuart, What are you? My lawyer or my friend?"

"Both." he replied.

And with that, they strode out into the humid afternoon momentarily refreshed.

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