ILLINOIS POLLUTION CONTROL BOARD
January 11,
1990
WILL COUNTY ENVIRONMENTAL
NETWORK,
Complainant,
PCB 89—64
V.
)
(Enforcement)
GALLAGHER BLACKTOP,
Respondent.
INTERIM OPINION AND ORDER OF THE BOARD
(by B.
Forcade):
On April
13,
1989, Will County Environmentul Network
(hereinafter
“WCEN”)
filed a complaint with
the Board cnarging
Gallagher Blacktop (~Gallagher”) with noise violallons.
The
complaint and attachment
cite provisions of
Section
24
of
the
Environmental Protection Act (hereinafter
“the Act”)
and
35
Ill.
Mm.
Code 900.102.
A hearing was held on July
7,
1989.
At
hearing,
the hearing officer provided that
if briefs were
to be
filed they would be due simultaneously on August
7,
and replies
would be due simultaneously on August
21.
Closing statements
were made at hearing,
but the question of whether briefs would
be
filed was
lef:
open.
No briefs were received by the Board.
Gallagher has its main offices
in Thorton,
Illinois.
It
operates asphalt plants
in Thorton, Chicago,
and Joliet.
The
Joliet plant, on Brandon Road,
is
the subject of this action.
Gallagher bought tne plant
in December,
1972,
from Delta
Construction Company which was owned by Lincoln Stone Quarry.
Gallagher currently leases the land upon which the plant
is
located from Lincoln Stone.
It appears that
the property
in
question was first zoned
for industrial
use
in late 1970 and that
Delta Construction Company built and operated an asphalt plant
at
that
location from 1971 until
1a:e 1972 when
it was sold
to
Gallagher.
The plant area would appear
to be approximately
400
feet by 600 feet.
The area
is primarily
residential;
tne
blacktop plant
is
the only industrial
facility within several
miles of the complaining witnesses’
property.
(See Generally,
R.
8,
32—33,
71—74; Complainant’s :x.
3; Complainants
Ex.
5)
The finished product from the Gallagher plant
is called
blacktop or hot mix asphalt.
It
is made from aggregate and a
re~Ined petroleum product called petroleum asphalt.
The
aggregate must be dried and heated
for
the petroleum asphalt
to
coat
it properly.
The material
is thermoplasr~c.
The blacktop
or
hot mix asphalt enters the trucks from the plant
at about
310
degrees.
As
it
cools it sets
up and gets hard.
It
is used
for
the resurfacing of old roadways and
to create new ones.
Most
of
the p oducts go
into public works projects,
including the State
of
Illinois,
County of Will,
and City of
Joliet.
(R.
71—77).
—2—
There are three different sources of noise that are
discussed
in this proceeding.
The first source
is the burner on
the dryer used
to heat the petroleum asphalt/aggregate mix.
The
second source
is the back
up whistle on the caterpillar loader
that
is used
to move material around inside the facility.
The
third source of noise is the trucks that move gravel into the
facility and hot mix asphalt away from the facility.
(R. 73—74,
86—87,
107—108).
WCEN asserts
that noise from the facility unreasonably
interferes with their enjoyment
of
life.
They seek
an order
from
this Board
to prevent excessive noise and a prohibition against
starting
the plant before seven o’clock
in the morning.
In
addition,
WCEN seeks an order
requiring use of the quietest
trucks
to haul gravel from the quarry, a requirement
to construct
an earthen berm
to abate
the noise, a requirement that Gallagher
use flagmen instead of
the back up whistle on the caterpillar,
and a prohibition against
the grinding operation.
WCEN also
seeks a civil penalty.
NOISE
Title VI
of the Act provides the procedures and standards
for noise control.
Sections
23 and
24 of
that Title provide:
Section
23
The
General
Assembly
finds
that
excessive
noise
endangers
physical
and emotional health
and
well—being,
interferes
with
legitimate
business
and
recreational
activities,
in-
creases construction costs,
depresses property
values,
offends
the
senses,
creates
public
nuisances,
and
in
other
respects
reduces
the
quality of our environment.
It
is
the
purpose
cf
this
Title
to
prevent
noise which creates a public nuisance.
Section 24
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.
The Board has implemented
these statutory sections
in two
ways.
First,
the Board has adopted. specific numerical
limitations on the characteristics
of
sound
that may
be
transmitted from source to receiver.
The second method of
implementing the noise provisions of the Act are found
in
35
Ill.
Adm. Code 900.101
and 900.102.
7—7 ~
—3—
Section 900.101
Definitions
*
*
*
*
Noise
pollution:
the emission
of
sound
that
unreasonably
interferes
with
the enjoyment
of
life or
with any lawful
business or activity.
*
*
*
*
Section 900.102 Prohibition of Noise Pollution
No person shall cause
or allow the emission of
sound
beyond
the
boundaries
of
his property,
as
property
is
defined
in
Section
25
of
the
Illinois
Environmental
Protection
Act,
so
as
to cause noise pollution
in Illinois,
or so as
to violate any provision of this Chapter.
In effect,
these two sections adopt
a regulatory public nuisance
provision for noise control using
the statutory phrase “unrea-
sonable interference with the enjoyrr~~
nt
of life or with any
lawful business or
activity” as
the standard.
The pleadings,
testimony and exhibits
of
the complainants,
regarding noise, are
founded
in this public nuisance theory.
The judicial interpretation
of Sections 900.101 and 900.102,
which is most closely related
to the facts of
this case,
is
Ferndale Heights Utilities Company
v.
Illinois Pollution Control
Board and Illinois Environmental Protection Agency,
144
Ill.App.3d
962,
358 N.E.2d
1224
(First District,
1976)
(here-
inafter “Ferndale”).
In that case, which involved the exact
statutory and regulatory language
at issue
in
the instant
proceeding*,
the Board found that Ferndale Heights Utilities
Company had violated the regulatory public nuisance standard
in
their operation
of
a pumping station.
On appeal,
Ferndale
Utilities argued that the regulatory language of Section
900.102
was unconstitutional
in that
it did not contain sufficient
standards for determining what constitutes “noise pollution” and
argued that the narrative
testimony at hearing lacked sufficient
specificity
to sustain a finding
of violation cf
noise
pollution.
The Ferndale court found
the regulatory
language,
when
viewed
in
the entire statutory framework,
including the factors
*
Prior
to codification
in the :llinois Administrative Code,
Section 900.101,
“Noise Pollution” was found
at Illinois
Pollution Control Board,
Rules and Regulations,
Chapter
8,
Rule
101(j).
Section 900.102 was Rule
102
of that same Chapter.
The
actual regulatory language was
not modified.
I
fl?—?)
—4—
listed
in Section
33(c)
of the Act,
was sufficiently specific
to
pass constitutional muster.
In evaluating the adequacy and
specificity
of the citizen testimony,
the court stated:
Ferndale
next
asserts
that
the Board’s
order
should
be
reversed
because
its
finding
of
a
violation
of
Rule
102
is
contrary
to
the
manifest weight
of
the
evidence.
Specifical-
ly, Ferndale argues that the Pierson testimony
failed
to
provide
dates and
times
of
noises,
failed
to
show
any disturbance
in
his
house,
failed
to
show
physical damage
to
himself
or
any person or property,
failed
to show that he
never
lounged
or
entertained
guests
in
his
yard and
failed
to show when and how often
he
did
not
lounge
or
entertain
guests
in
his
yard.
Other alleged
testimonial deficiencies
involve
failure
to
cite
dates
and
times
when
activities
such
as
patio
parties
were pre-
vented
or
when
the various witness’
sleep was
interrupted.
However,
agency
witnesses
used
such
terms
as
“almost
constant
this
summer,”
“five
times
this
past
summer”
and
“awakened
once or twice
this year” to describe generally
how
often
they
were
disturbed
by
the
noise
emanating
from
the
pumping
station.
Terms
such
as
“a
great
source
of
irritation”, “dis-
turbing,”
“like
ten air conditions
running
at
the same time”
and
“like
a lawnmower running
all day under my window”
were used
to describe
the effect of this sound upon the individuals.
Based upon
such
testimony,
the
Board properly
found
that
the
character
and degree of inter-
ference with the enjoyment
of
life and lawful
activity
occasioned
by
sounds
emanating
from
Ferndale’s
pumping
operations
to
be
“unreasonable.”
Our review of
the record does
not mandate
a contrary conclusion.
(Id.)
These statutory,
regulatory and judicial standards provide
the guidance
by which the Board must evaluate the record
in this
proceeding.
The first witness for WCEN was
Mr.
Robert Whitier.
Mr.
Whitler
lives
at 1815 Brandon Road and shares
a common fenceline
with the blacktop plant
just north of
him.
He has lived at
that
location
since
1943,
28 years
prior
to the construction
of the
blacktop plant.
Mr. Whitier described the noises that bothered
him:
The big
noise
from
the
plant
is
the big gas
burner.
At
one
time
they
had
a
plywood
housing around
it and
it helped some.
107—30
—5—
*
*
*
*
Another
noise
that makes
my blood boil because
it
is
totally
unnecessary
is
the
back
up
whistle
on the
caterpillar.
They have
been
whistling
all
over
the place
especially
when
they
have
been
bringing
in
tons
and
tons
of
the old blacktop grindings...
(R
9—20)
A large part of
the problem described by Mr. Whitler related
to
the starting time and the duration of
the noise:
To
be
more
specific,
first,
they wake
us
up
two
or
three
hours
before we
need
to get
up,
3:30
a.m.,
July
19,
1987,
I
went
over
and
complained
to
the operator
and
talked
to
the
owner
the
next
day.
They
let
up
for
a while
but
by
September
they
were
back
to
4:30
a.m.
startups again and trucks by six a.m.
*
*
*
*
These
four
and five
a.m.
start
ups
continued
the
rest
of
the year.
‘Til November
the 19th
and then at
5:10.
Only one start
up even near
seven
a.m.
and
that
was
6:30.
1988
was
no
better.
May
the
2nd,
they
started
at
4:30
a .m.
Early
start
ups
continued until
on
the
tenth
of
June
I
talked
to
the
supervisor,
by
the
name
of
Jerry
and asked
what Gallagher
meant
by
a
few times
of
early
start
ups.
He
said
twenty.
Early
start
ups
continued
until
on
July
7th,
I called Mr. Gallagher
in his bed at
five a.m.
to wake him up as
he had me.
I told
him he was way past his
20
days.
The
rest
of
the year,
most were
started around
6:05.
But
1989
started
off
again
with
a
5:04
start
up.
This was on Saturday,
March
25.
*
*
*
*
The
last
time
only
two
weeks
ago,
22nd
of
June.
(R.
13—16)
Mr. Whitler
introduced
a calendar.
(Complainant’s
Ex.
6;
discussed at
R.
27—31).
That
exhibit
lists
42 days between
September
1,
1987 and November
30,
1987 with
a starting time
between
4:00
a.m.
and 6:00 a.m.
In addition,
Mr. Whitler describes
the noise as having an
adverse impact during the day,
“second,
this noise goes on all
107—31
—6—
day.
We cannot enjoy the out—of—doors,
the big burner roaring
in
our ears
steadily,
the noisy trucks they use
to haul gravel....
They have caused my baby grandchild
to cry out and hold her
ears.”
(R.
15—16).
Mr. Lesley Mart provided corroboration of
the earlier
testimony, based on his visits
to Mr. Whitler’s
property,
“the times
I have heard
it,
it
sounds like the passing
of a lone freight
train and boy,
that whistle
is reminiscent of
a
steam locomotive whistle which can be very distracting.
“(R.
42).
Mr. Dan Whitler
of
1807 Brandon Road,
another complainant’s
witness, shares
a property line with Gallagher.
He stated that
the blacktop plant was
so loud he thought the furnace had blown
up and that the noise often awakens him from an early morning
sleep.
(R.
44—46).
Another
resident of that same household
testified
also:
My
name
is
Tina
Crusak
and
I
live
right
next
to
the
blacktop.
With my uncle
Dan.
And he
has
his
windows
shut
but
I
have
to
have
my
windows open because
it’s on the second floor,
my
bedroom
is, and
I
could
see the trucks out
my window
also,
pulling
into
the blacktop and
pulling
out
from
the
blacktop
and
I
wish
I
kept documentation and
I
should
be doing
that
so
I will do that
from now on.
But they have
woke
me
up
several
times
very
early
in
the
morning,
4:30,
five
o’clock,
six
o’clock
in
the morning wake up.
And
I
go,
oh my good,
——
and
I am a school teacher and also
take summer
classes
and
also waitress
on my
weekends,
so
my time to get
to sleep is very precious
to me
and it
is distressing because
I am not getting
enough sleep.
(R.
55—56).
Ms. Crusak described how she could not hear someone talking
on
the phone when her window was open and the plant was running and
how she could not go swimming outside
or sit outside on the porch
because
it was “so noisy and unbearable”
(R.
56).
She described
the 4:30 and 5:00
a.m.
start ups
as quite frequent during April
and May
of
1989.
The respondent provided one witness
at hearing, Mr. Donald
Gallagher.
Mr. Gallagher
has been with the company
for over
30
years,
and
is presently
the vice—president.
Mr. Gallagher
presented several points recarding noise from the subject
facility,
including
(1)
that the facility was tested for
compliance with numerical limitations
in
973,
1974,
and 1984,
and that operational levels have not changed
since
the numerical
testing showed compliance;
(2)
that
the back
up whistle on the
caterpillar
is required by OSHA but that
they are working with
OSHA to secure approval of posting signs instead of bacK
up
whistles;
(3)
that Gallagher
doss not own the trucks and
therefore cannot control how loud the trucks are or control
the
1fl7—32
—7-
back up alarms on the trucks;
and finally
(4)
that the hours of
operations
at the present
facility are minimal
to meet existing
needs of the company.
The respondent’s primary
focus was
on the sound tests
conducted at
the facility:
By
Gallagher’s
Attorney
.
*
.when
were
sound
tests conducted at the plant
?
Mr.
Gallagher
Yeah,
in
‘73
and
‘74,
we
conducted
them
ourselves.
It
was
the
first
year
of
operation.
Our
plant
superintendent
at
that
time did
the testing.
Subsequent,
in
1984
as
a
result
of your complaint,
we had
it
retested
and
the
gentleman
that
performed
those
tests
is
a
professional
registered
engineer
——
so
——
Mr. Westerly.
Q.
And what were the results of the
tests
in
1984 and
in
‘73 and
‘74
?
A.
Well,
they are shown
in
——
in one exhibit
but
it
basically
showed
us
in
compliance,
at
the property
line
on,
wit.t
the
6
dBs,
on the
A
scale
Q.
Now,
in those tests were taken,
now those
tests
were
taken
when
the
plant
was
in
full
operation
?
A.
Right.
Yeah,
I
just
want
to
make
one
little comment on
that.
The rate at which the
plant operates doesn’t vary very
:ouch.
And
if
it
did,
I
don’t
think,
it’s
a
significant
sound
level
change.... It
sounds
the
same,
no
matter
what,
it’s
just
a
big
burner.
(R.
89—
90)
The
“one
exhibit”
Mr.
Gallagher
refers
to
seems
to
be
Complainant’s Exhibit
2.
That exhibit consists
of three pages.
The
first
is
a
July
16,
1984
letter
from
Mr.
Major
Hearn
Jr.,
of
the Illinois Environmental Protection Agency
(“the Agency”)
to
the
Delta
Construction
Company
recit:ng
complaints
about
their
Brandon Road asphalt
plant.
The relevant sentences from that
letter are:
The
State
of
Illinois
has
adopted regu~ations
governinc
the
amount
of
noise
that
can
be
emitted
from
asphalt
plant
to
residential
property.
Those
maximum
emission
levels
are
61 dB(A)
during the daytime hours of
7
A.M.
to
10
P.M.
and
51
dE(A)
during
the
nighttime
hours
of
10
P.M.
to
7 A.M.
107-3~
—8—
The second page of that exhibit
is
a one—page letter to Mr.
Major
Ream
Jr.
of the Agency,
from Delta Construction Company dated
July
27,
1984.
This letter,
and its one-page map attachment,
appears
to be about the subject facility and states
in relevant
part:
Pursuant
to
your July
16th letter,
concerning
noise
emissions
from
our
asphalt
plant
on
Brandon
Road,
we
have
taken
some
sound
level
measurements.
The
sound
levels
at
various
points
around
the asphalt
plant
are
shown
on
the enclosed map.
We also took readings
in the front yard of Mr.
Fred
Wilhelmi
of
1808
Brandon
Road
and
in
front of the Whitler
residence
of 1815 Brandon
Road.
In
both
locations,
the
sound
levels
were
plus
or
minus
50 dB(A).
Therefore,
we
do
not
feel
that
cur emissions
levels are
in
violation of EPA regulations
and,
in the event
of any further complaints,
encourage a meeting
with an EPA representative
to take joint sound
readings.
The attached map appears
to show sound levels
of
92 dB(A)
at the
dryer,
68
dB(A)
along
the northern plant boundary,
59—61
dB(A)
along
the western plant boundary,
and 59 dB(A)
along the southern
plant boundary.
The Board
notes several problems with Gallagher’s
reliance
on numerical sound measurements
as
a defense
to the noise
nuisance action.
First, compliance with one set of regulations
(the numerical noise emissions
values)
does
not present
an
absolute bar
to a finding of violation regarding another
set of
regulations
(the general nuisance noise prohibitions).
Second,
the numerical noise measurements
taken by Gallagher
are for the years
1973,
1974,
and 1984.
The complainant’s
nuisance action
is
for
the years
1987,
1988,
and 1989.
Thus,
the
respective
claims
represent
substantially
different
time
periods.
Third,
the numerical noise values asserted by Gallagher do
not show “compliance” with the numerical
noise limitations
of the
State of Illinois.
The original noise
regulations that apply
here were adopted by the Board
in R72—2,
In the Matter
of
: Noise
Pollution
Control
Regulations,
Order
of
July
23,
1973;
Opinion
of
July
31,
1973,
as
Rule
202
and
Rule
203.
Those
rules
provided
maximum
allowable
octave
band
sound
pressure
levels
for
nine
octave band center frequencies.
The single number A weighted
scale
for
noise
measurement
was
never
adopted
by
this
Board
as
a
regulatory standard.
These
1973
octave
band
pressure
levels
were
codified
at
35
ill.
Adm
Cod?
901.102.
:n
1987,
the
Board
adopted
amendments which provided
that
tb’: particular re’~u~latorv
107—34
—9—
standards
should
be
measured
based
on
one—hour
Leg
measurement
techniques,
see
R83—7,
In
the
matter
of
:
General
Motors
Corp.
Proposed
Amendments
to
35
Ill.
Adm.
Code
900.103
and
901.104,
January
22,
1987.
Gallagher’s “A scale” noise measurements
do
not show compliance with any past or present numerical regulatory
standard of the Board.
Gallagher’s remaining arguments regarding the OSHA whistle
requirements,
control over the trucks, and minimal hoursof
operation address the issue of
~
the
noise
is at
a certain
level,
not how loud the noise might
be or what
interference
it
might
be causing nearby residents.
Based on the above cited evidence,
the Board
finds
that
noises emanating
from Gallagher’s
facility,
specifically from the
dryer,
from the back up whistle on
the caterpillar and from
trucks in the facility,
are causing interference with
the sleep
and normal leisure
time activities
of adjacent residents.
Further,
the Board finds
this interference
is frequent and
severe.
Section
33(c)
The Board may find severe and frequent interference with the
enjoyment
of life solely based on testimony describing
the
impacts of noise.
However,
to evaluate whether those noise
impacts are “unreasonable,”
the Board must evaluate
a series of
factors listed in
Section
33(c)
of
the
Act:
Section
33
*
*
*
*
c.
In
making
its
orders
and
determinations,
the
Board
shall
take
into
consideration
all
the
facts
and
circumstances
bearing
upon the reasonableness
of
the emissions,
discharges,
or
deposits
involved
including,
but not limited
to:
1.
the
character
and degree
of
injury
to,
or
interference
with
the
pro-
tection
of
the
health,
general
welfare and physical property
of the
people;
2.
the social and economic value of the
pollution source;
3.
the suitability
or
unsuitability
of
the pollution
source
to
the area
in
which
it
is
located,
including
the
question
of
priority
of
location
in
the area
involved;
107—35
—10—
4.
the
technical
practicability
and
economic
reasonableness
of
reducing
or
eliminating
the
emissions,
dis-
charges
or
deposits
resulting
from
such
pollution
source.
5.
any economic
benefits
accrued
by
a
non-complying
pollution
source
because
of
its
delay
in
compliance
with pollution control
requirements;
and
6.
any
subsequent
compliance.
The “reasonableness”
of the noise pollution must
be determined
in
reference
to these statutory criteria.
Wells Manufacturing
Company
v.
Pollution
Control
Board,
73
Ill.2d 226,
383 N.E.2d 148
(1978); Mystic Tape,
Div.
of
Borden,
Inc.
v.
Pollution
Control
Board,
60
Ill.2d
330,
328 N.E.2d
5
(1975);
:ncinerator,
Inc.
v.
Pollution Control Board,
59 Ill.2d 290,
319 N.E.2d 794
(1974);
City of Monmouth
v.
Pollution Control Board,
57
:ll.2d 482,
313
N.E.2d 161
(1974).
However, complainants are not required to
introduce evidence on these points.
Processing
& Books
v.
Pollution Control Board,
64 Ill.2d
68,
351 N.E.2d 865
(1976).
In evaluating
the first
of
the Section
33(c)
factors,
the
Board finds
there
is
a frequent and severe interference with
sleep and normal leisure activities
of adjacent residents caused
by noise from Gallagher’s facility.
This interference goes far
beyond trifling interference,
petty annoyance or minor
discomfort.
The noise constitutes
a substantial interference
with the enjoyment of
life and property.
Concerning the second of the Section
33(c)
factors,
the
Board finds
that Gallagher
is
of substantial social and economic
benefit
in that
it provides valuable services and employs
people.
However,
the social and economic benefit
is
significantly reduced
by the nature
of noise emissions
from the
property.
The third Section
33(c)
factor concerns suitability of the
pollution source to the area in which
it
is located and priority
of location.
The record contains very little descriptive
information on the area beyond complainants’
and defendant’s
property.
While the property which Gallagher’s facility occupies
was originally zoned for residential
use,
that zoning use was
changed and the facility appears
to be
in compliance with current
zoning uses.
The Board
finds
that Gallagher’s facility
is
suitable
tar the area
in which
it
is located
if noise problems
can be
reduced
to acceptable levels.
On
the priority of locatlin issue,
the Board finds
that
complainants have the clear priority.
The record
is undisputed
I
07—36
—11—
that
local area residents generally,
and several complainants
in
particular,
lived
in the area
in 1943 and the facility in
question was developed in 1972.
(R.
8.)
Concerning the fourth of the Section
33(c)
factors,
the
Board
finds
that there are technically feasible and economically
reasonable methods
of making some reductions
in noise levels,
that Gallagher has
begun to implement some of
these measures,
but
that the record
is insufficient
to support
a detailed Order
commanding what specific steps must
be taken,
by what
certain
time,
and what
steps will
be necessary
to completely cure the
problems.
On the fifth Section
33(c)
factor,
the
record
is devoid
of
information on any economic benefits which may have accrued
to
Gallagher because of delays
in compliance.
The Board notes that
the report required by this
Interim Order should contain some
information
on the economic costs of compliance.
On the last
of the Section
33(c)
factors,
the record clearly
indicates that Gallagher had not come into compliance
as
recently
as two weeks prior
to the hearing
in this enforcement
prc.oeedinq.
(R.
13—16).
Additionally,
the Board
finds that
to curtail all activities
before 7:00
a.m.
might amount to an Order
for Gallagher
to cease
operation at
this facility.
However,
lack
of
a technologically
feasible method
of
reducing the pollution
is not
an absolute
defense
to
a finding of violation by this Board.
Wells,
supra,
Chicago Maonesium Casting Co.
v.
Pollution Control Board,
22
Ill.App.3d.
489,
317 N.E.2d 689
(First District,
1974).
The
Board believes that the report
required
in today’s Order will
provide information
on specific workable methods of reducing the
noise problems
to acceptable levels without facing the difficult
closure
issue.
Based on the Board findings of substantial interference with
the enjoyment of
life and after consideration of the factors
listed
:n Section
33(c),
the Board finds that
noise emissions
from Gu_lagher’s facility are unreasonable and constitute
a
violation
of
35
Ill.
Adm.
Code 900.102 and Section
24 of the
Environmental Protection
Act.
Additional
Information
Throughout
this proceeding,
steps were mentioned which would
have the effect
of reducing the noise emissions
from Gallagher’s
facility.
These include:
1.
Operational
changes,
such
as
no
start
up
prior
to 7:00 a.m.;
2.
Replacing the caterpillar back—up whistle
with
a flagman
or
signs;
1
07—37
—12-
3.
Building
an
acoustical
barrier
along
the
perimeter;
and
4.
Enclosing the dryer burner area.
While these options were mentioned at hearing, certain
informational deficiencies exist.
Therefore,
the Board will
order Gallagher
to prepare
a report describing the background
situation, and evaluating,
to the maximum extent possible,
the
type and degree of noise reductions possible
by changes
in
operation
(for example, rerouting truck traffic)
or construction
of
noise reduction devices.
As background,
this
report should
contain an accurate and current representation
of the facility,
paths
for vehicles, property lines, and locations of noise
sources and complainants’
properties.
Within the time
constraints imposed by this Order,
the report should attempt
to
characterize numerically the background noise levels;
pre—noise
reduction operational noise
levels;
and post—noise
reduction
operational
noise levels as much as possible, whether
by
measurement,
calculation,
or estimation.
This report should be prepared by
a competent individual
or
firm,
and should evaluate all methods
of
control
(not
just
those
already
discussed).
Each
control
option
should
include
anticipated
noise
reductions,
cost
of
implementation
and
an
estimate
of
a
reasonable
time
for
implementation.
The
Board
believes
that
a
special
comment
is
warranted
as
it
pertains
to
the
back
up
noise
devices
and
the
Occupational
Safety
and
Health
Administration
(“OSHA”).
There
was
no
question
that
certain
devices
were
installed
to
meet
OSHA
standards.
In
this
proceeding
both
complainants’
and
respondent’s
testified
that
alternative
non—noise
producing
methods
of
compliance
with
the
OSHA
standards
may
be
permissible
under
certain
circumstances.
These
alternatives
may
or
may
not
be
viable
here.
The
Board
intends
that
in
the
report
required
by
this
Interim
Order,
such
alternatives
be explored and explained.
The Board
in no way
intends
to
require
Gallagher
to
violate
OSHA
requirements
or
risk
worker
safety.
The Board will retain jurisdiction
in this case pending
receipt
of
the
report,
and
final
disposition
of
this
matter.
The
report
is
to
be
tiled
with the Board and complainants not
later
than
March
31,
1990.
Unless
a
motion
requesting
a
hearing
on
the
contents
of
the
report
is
received
by
April
21,
1990,
the
Board
will
proceed
to
issue
a
final
Order
regarding
compliance
as
soon
as
possiole
thereafter.
Any
determination
regarding
civil
penalties
will
be
deferred
until
the
final
Order.
This
Interim
Opinion
constitutes
the
Board’s
initial
findings
of
fact
and
conclusions
of
law
in
this
matter.
107—3
S
—13—
Order
1.
The Board finds that Gallagher Blacktop has violated
35
Ill.
Adm.
code. 900.102, as well as Section
24 of the Environmental
Protection Act.
2.
Gallagher
is ordered to submit
to the Board and complainants,
not later
than March
31,
1990,
a report on methods of
reducing or eliminating
noise pollution at its facility
consistent with the Opinion.
3.
The Board will retain jurisdiction
in this matter pending
receipt of the report.
Unless a motion for hearing
on the
contents of that report
is received by April
21,
1990,
the
Board will proceed
to issue a final Order
in this matter.
IT IS SO ORDERED
Board Member J. Theodore Meyer dissented.
I,
Dorothy
M.
Gunn, Clerk of
the Illinois Pollution Control
Board, hereby certify that
the above
nterim Opinion and Order
~
the
/t~5
day of
__________________,
1990,
by a
Dorothy
M. G?y(n,
Clerk
Illinois
PollI’ution Control Board
107—39
