State of Illinois
Pollution Control Board
James R. Thompson Center
100 W. Randolph Street, Suite 11-500
Chicago, Illinois 60601
http : //wvn i_pc b. sta te. i I. us/
FORMAL COMPLAINT
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
In The Matter Of:
Anne MePonagh S David Fishbaum
1464 Linden Avenue
Highland Park, IL 60035
(Insert your name(s) in the space above)
Complainant(s),
v.
Richard and Amy Michelon
1474 Linden Avenue
Highland Park II. 60035
(Insert name(s) of alleged polluter(s))
Respondent(s)
PCB 20
(For
?
Board use
-
7(0
only)
Note: If you do not use this formal complaint form and instead draft and type your own,
it must contain all of the information requested by this form. All items must be
completed. If there is insufficient space to complete any item, you may attach additional
sheets, specifying the number of the item you are completing. Once completed, you
must file the original and nine copies of the formal complaint, notice to respondent, and
certificate of service with the Clerk of the Board at the above address.
APR
1.
?
Your Contact Information
Name:?
Anne MoDonagh and David Fishbaum
Street Address:?
1464 Linden Avenue
Highland Park
County:
?
lake
State:
?
Illinois
Phone Number:
?
(?
847 ) 433
?
6971
Place where you can be contacted during normal business hours (if
different from above)
Name:
Street Address:
County:
State:
Phone Number:
3.
Name and address of respondent (alleged polluter)
Name:
?Richard and Amy Michelon
Street Address:
?
1474 Linden Avenue
Highland Park IL 60035
County:?
Lake
State:
?
Illinois
Phone Number:
?
(
847 1
?
433 -?
8321
4.
Describe the type of business or activity that you allege is causing or
allowing pollution (e.g., manufacturing company, home repair shop)
and give the address of the pollution source if different than the
address above.
the Michelon's Three 5-ton air conditioners are located eight feet front our
properly line. This is their residence.
The units are on 170 days per year, 24 hours a day. the units operate/make
noise about 30-502 of the time. The units' decibel rating is 79 decibels each.
5.
List specific sections of the Environmental Protection Act, Board
regulations, Board order, or permit that you allege have been or are
being violated.
State of Illinois Noise Code: ref:
35
III. Adm. Code Subtitle H.
Section 901.102.a, which pertains to residential noise radiated to another
residential property during daytime hours.
The octave level of the Air Conditioner at
250
Hz, which is 65 OS, far exceeds
the Illinois daytime limit of
57
&I, as well as the nighttime limit of 47 d6.
Furthermore, when the daytime limit is corrected for the presence of a
Prominent Discrete Tone (-100), it exceeds the allowable limit by 18 dS. (The
background noise is far below the measurement level (greater than 10 d0
difference) at
250
Hz.)
This is the noise generated by only one unit running. A second unit is the same as
the first, so a
$O
increase can be expected when the second unit is running at
the same time as the first. The 3
rd
unit is not the same, so there is likely an
increase when all units are running but it is unclear how much louder.
See attached report from Acoustic Associates, Ltd.
6.
Describe the type of pollution that you allege (e.g., air, odor, noise,
water, sewer back-ups, hazardous waste) and the location of the
alleged pollution. Be as specific as you reasonably can in describing
the alleged pollution.
Loud noise is emitted when the air conditioners kick on. It is of a high-pitched
nature that is impossible to tune out whether awake or asleep. The noise
permeates our entire house and all our land. The noise is powerful enough to enter
every part of our older home so
we
are unable to relax for six months a year.
The units kick on about six to ten times per hour in the summer, run loud for 2-3
minutes, run quieter for
2-3
minutes, then go off. Then, about two minutes
later, The cycle of loud noise starts again.
Three of our four bedrooms and five of our six common rooms are most affected
by the noise. We have alleviated the noise in those two quiet rooms only by
closing all doors and windows all year round.
There are no products or materials available to us to cost-effectively stem This
noise.
7.
Describe the duration and frequency of the alleged pollution. Be as
specific as you reasonably can about when you first noticed the
alleged pollution, how frequently it occurs, and whether it is still
continuing (include seasons of the year, dates, and times of day if
known).
We noticed the noise on April 20, 2006, when we returned from Florida. This
was the first time Their air conditioners went on, as They moved into The newly
built home around Thanksgiving of 2005. We tried to live with it but it soon
became apparent That That was impossible.
In 2006 and 2007, The air conditioners have run every day for 170 days each
year, 24 hours a day.
2006: April 20
th to about Oct 11 th
. Early snowfall That year.
2007: May 10th to November 1".
The units go on about 6 times per hour, every hour in The summer time, and
about 34 times per hour during The spring and fall. The air conditioners run
even when The air temperatures are in The 40s. So The noise "alarms" us about
15-20,000 times per year. (6 times/hour X 24 hrs X 70 days (heifer) plus 5
times/hr X
24
hrs X 100 days (coolerl
s
17,280 times per year.
We expect The noise to start up again soon
when
temperatures get above 60
degrees or so.
8.
Describe any bad effects that you believe the alleged pollution has
or has had on human health, on plant or animal life, on the
environment, on the enjoyment of life or property, or on any lawful
business or activity
1.
It wakes homeowner up repeatedly at night, in guest room and in master
bedroom, even with windows closed. Guest room is too loud even with
fans running and white noise machines. There is no way to get used to
it.
2.
Once it wakes us up, its "alarm-like" tone keeps us awake until it stops.
We have to hope well fall asleep again in The next minute or two before
it starts up.
3.
It disrupts all Thinking all day, as The high-pitched tone cannot be
ignored or deadened, even with headphones.
4.
It interrupts meals, inside or out.
5.
Our home office is frequently loudly interrupted, like a leaf blower going
on every few minutes.
6.
Watching television in our family room or attic necessitates the use of
headphones to stop The outside noise.
7. Our outside area is virtually unusable due to the noise. We don't play outside
very often any more and cannot sit in our backyard or on our front porch
without constant noise.
S. Homeowner has suffered episodic high blood pressure, nervous twitching,
inability to complete tasks or concentrate, sleep disruption.
9.
We cannot have overnight guests due to the loud noise. Father-in-law
complained about how loud noise is—"you can't shut it out.
10.
In 2007, we used insulation to seal off all ventilation to The outside
from our bathrooms and kitchen in order to reduce noise.
9. Describe the relief that you seek from the Board (e.g., an order that
the respondent stop polluting, take pollution abatement measures,
perform a cleanup, reimburse cleanup costs, change its operation, or
pay a civil penalty (note that the Board cannot order the respondent
to pay your attorney fees or any out-of-pocket expenses that you
incur by pursuing an enforcement action))
1.
Order Michelons to reduce noise emissions to State mandated levels both
daytime and at night as measured from same location within three
weeks of order.
2.
Ensure The Prominent Discrete tone is abated to State Levels.
3.
To alleviate noise pollution, in 2007, we had to buy a grill to cook outdoors as
lost ability to use kitchen ventilation. In 2008, in order to use some rooms, we
are rebuilding interior walls on north side, installing noise reducing windows
along north and taking other steps to alleviate The noise. These steps will NOT
stop noise in all rooms but will lessen impact in some key areas. Costs incurred
will be assessed soon. We would expect reimbursement for these "clean up"
costs.
10. Identify any identical or substantially similar case you know of that is
already pending before the Board or in another forum against this
respondent for the same alleged pollution (note that you need not
include any complaints made to the Illinois Environmental Protection
Agency or any unit of local government)
None known of.
omplainant's signature)
12.
in, on oath or affirmation,
est of my knowledge.
omplainant's signature)
Subscribed to and sworn before me
this ?
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?
day
20 0?
otary
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My commission expires:
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4n/1
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*OFFICIAL SEAL'
Notary
Barry
Public, State
Duke
of Illinois
Commission Expires 2/23/2012
p
11. State whether you are representing (a) yourself as an individual or
(b) your unincorporated sole proprietorship. Also, state whether you
are an attorney and, if so, whether you are licensed and registered
to practice law in Illinois. (Under Illinois law, an association, citizens
group, unit of local government, or corporation must be represented
before the Board by an attorney. Also, an individual who is not an
attorney cannot represent another individual or other individuals
before the Board. However, an individual who is not an attorney is
allowed to represent (a) himself or herself as an individual or (b) his
or her unincorporated sole proprietorship, though the individual may
prefer having attorney representation.)
We
are representing ourselves as individuals.
We
not currently represented by
an attorney.
CERTIFICATION
(optional but encouraged)
Acoustic
Associates, Ltd.
1 1 1 1 1
111111111mm
Specialists
in
Hearing and Acoustics
1278 W. Northwest Hwy - Suite 904, Palatine, Illinois 60067
Torn Thunder, AuD, FAAA, INCE -
Principal
Office:
847-359-1068 •
Fax:
847359-1207
?
Roger Harmon, BSEE, PE -
Acoustical Engineer
Website: wvvw.AcousticAssociates.com
Steve Hallenbeck, AuD, FAAA - Audiologist
into0AconsticAssociates.onic
Steve Thunder, BSE Cand. - Engineering intern
June 8th, 2007
Anne McDonagh
1464 Linden Ave.
Highland Park, IL 60035
Re:
Noise Emissions
Dear Mrs. McDonagh:
This letter reports the findings of our recent noise assessment of the A/C units next to your property.
As you asked we have assessed this noise relative to the State of Illinois noise code (ref: 35 Ill. Adm.
Code Subtitle H). Under this code, your residence is classified as Class A (residential) land and the
neighboring home from which the noise is emitting is also classified as Class A (residential) land.
Since the measurements were taken at approximately 11:30 AM, the applicable code here is Section
901.102a which pertains to residential noise radiated to another residential property during daytime
hours (7am — 10pm). Although the limits are specified in each of nine octave frequencies, the overall
(total) limit often used for simple monitoring purposes is 55 dBA. Also, it was found that there was a
Prominent Discrete Tone. Accordingly, Section 901.106 of the code also applies. This applies a -10 dB
correction to the frequency at which the tone occurs.
To conduct our study, we set up our equipment next to the house that was being disturbed, 25 ft from
the source. Our equipment consisted of a high precision sound level meter connected to a digital
recorder. A calibration tone was placed on the recording so that the recording could be accurately
analyzed in our laboratory. The recording began around 11:30 AM on Tuesday, May 29, 2007. Our
intern was on site documenting his recordings and observing acoustic surroundings. It was indicated
that the noise being recorded at the time was representative, although it was even louder on other
occasions.
In our lab analysis, we generated 1/3-octave and octave frequency spectra. The 1/3-octaves were used
to determine the presence on a Prominent Discrete Tone, as required by IL code. And the octave bands
were used to present the data in a simplified form. The resultant octave band frequency spectrum is
shown in FIGURE 1. The overall level of this spectrum is 57 dBA. As seen in the figure, the octave
level at 250 Hz (65 dB) far exceeds the Illinois daytime limit of 57 dB, as well as the nighttime limit of
47 dB. Furthermore, when the daytime limit is corrected for the presence of the prominent discrete
tone (-10 dB), it exceeds the allowable limit by 18 dB. It is also necessary to correct the levels due to
background noise. In this case the correction was 0 dB. As shown in FIGURE 1, the background noise
is far below the measurement level (greater than 10 dB) at 250 Hz.
83
71
81
48
55
32
25
34
32
4K
34
25
40
38
2K
39
30
44
39
1K
45
35
38
43
500
51
40
36
42
250
57
47
39
85
125
85
55
45
51
80
70
Frequency, Hz
Tonal Component
at
238
Hz, Exceeds Corrected
Daytime Limits by 18 dB
80
inconsistent Bird Noise
I
I
?
50
I
?
40
30
20
10
0
1=IAllowable Daytime Limits
?
55
1=INighttime Limits?
44
—
Background Noise?
48
••••••••2511 From Source ?
57
Anne McDonagh: Noise Emissions
June 8th, 2007
Figure 1-NC Noise
There are a total of 3 A/C units. But at the time of the measurement, there was only one unit running.
The second unit was the same as the first, so a 3 dB increase in the noise level can be expected when
the second unit is running at the same time as the first unit. The 3
rd
unit, however, was not the same as
the other two. Therefore, an increase in the noise when all three units run is likely, but we can not
predict by how much. At the time of the test, it was 80 degrees outside and the units were determined
to have about a 50% duty (on-off) cycle after an hour of measurement /observation. On hotter days it
can be assumed that the duty cycle will increase therefore increasing the noise. During the
measurements one unit ran part of the time and two units ran part of the time. Therefore, data from
only one unit running was taken and then extrapolated to an equivalent of a 1-hour measurement.
The character of this noise can also contribute to the nuisance. In addition to the annoyance of the tonal
quality of the noise, there is also an acoustic beating characteristic where the level of the hum
oscillates. This characteristic exacerbates the nuisance. The beating is likely caused by the 2 A/C units
running at nearly the same speed creating the beating effect. Note, that there is no beating when just
one unit is running.
I hope this report meets your expectations in addressing this noise issue. We appreciate the opportunity
of working with you and ask that you call us if you have any questions.
Sincerely,
Reviewed by,
Steve
Thunder
Tom Thunder, AuD, INCE
Purdue University Acoustical Engineering Intern
Acoustical Engineer and Audiologist
ArnItctir Accnrintec T hi
?
Poop')
NOTICE TO RESPONDENT
NOTE: THIS STATEMENT MUST BE INCLUDED IN THE SERVICE OF THE
FORMAL COMPLAINT ON THE RESPONDENT
INFORMATION FOR RESPONDENT RECEIVING FORMAL COMPLAINT
Please take notice that today I filed with the Clerk of the Illinois Pollution Control
Board (Board) a formal complaint, a copy of which is served on you along with this
notice. You may be required to attend a hearing on a date set by the Board.
Information about the formal complaint process before the Board is found in the
Environmental Protection Act (Act) (415 ILCS 5/1
et seq.)
and the Board's procedural
rules (35 III. Adm. Code 101 and 103). These can be accessed at the Board's Web site
(www.ipcb.state.il.us). The following is a summary of some of the most important points
in the Act and the Board's procedural rules. It is provided for general informational
purposes only and does not constitute legal advice or substitute for the provisions of
any statute, rule, or regulation:
Board Accepting Formal Complaint for Hearing; Motions
The Board will not accept this formal complaint for hearing if the Board finds that
it is either "duplicative" or "frivolous" within the meaning of Section 31(d) of the Act (415
ILCS 5/31(d)) and Section 101.202 of the Board's procedural rules (35 III. Adm. Code
101.202). "Duplicative" means that an identical or substantially similar case is already
pending before the Board or in court.
See
35 III. Adm. Code 103.212(a) and item 10 of
the formal complaint.
"Frivolous" means that the formal complaint seeks 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. For example, the Board has the authority to order a respondent to stop
polluting and pay a civil penalty, to implement pollution abatement measures, or to
perform a cleanup or reimburse cleanup costs. The Board does not have the authority,
however, to award attorney fees to a citizen complainant.
See
35 III. Adm. Code
103.212(a) and items 5 and 9 of the formal complaint.
If you believe that this formal complaint is duplicative or frivolous, you may file a
motion with the Board, within 30 days after the date you were served with the complaint,
requesting that the Board not accept the complaint for hearing. The motion must state
the facts supporting your belief that the complaint is duplicative or frivolous.
Memoranda, affidavits, and any other relevant documents may accompany the motion.
If you need more time than 30 days to file a motion alleging that the complaint is
duplicative or frivolous, you must file a motion for an extension of time within 30 days
after service of the complaint. A motion for an extension of time must state why you
need more time and the amount of additional time you need. Timely filing a motion
alleging that the complaint is duplicative or frivolous will stay the 60-day period for filing
an answer to the complaint.
See
35 III. Adm. Code 103.204, 103.212(b).
All motions filed with the Board's Clerk must include an original, nine copies, and
proof of service on the other parties. Service may be made in person, by U.S. mail, or
by messenger service. Mail service is presumed complete four days after mailing.
See
35 III. Adm. Code 101.300(c), 101.302, 101.304.
If you do not respond to the Board within 30 days after the date on which the
complaint was served on you, the Board may find that the complaint is not duplicative or
frivolous and accept the case for hearing. The Board will then assign a hearing officer
who will contact you to schedule times for telephone status conferences and for
hearing.
See
35 III. Adm. Code 103.212(a).
Answer to Complaint
You have the right to file an answer to this formal complaint within 60 days after
you receive the complaint. If you timely file a motion alleging that the complaint is
duplicative or frivolous, or a motion to strike, dismiss, or challenge the sufficiency of the
complaint, then you may file an answer within 60 days after the Board rules on your
motion. See 35 III. Adm. Code 101.506, 103.204(d), (e), 103.212(b).
The Board's procedural rules require the complainant to tell you as respondent
that:
Failure to file an answer to this complaint within 60 days may have
severe consequences. Failure to answer will mean that all
allegations in the complaint will be taken as if admitted for purposes
of this proceeding. If you have any questions about this procedure,
you should contact the hearing officer assigned to this proceeding,
the Clerk's Office or an attorney. 35 III. Adm. Code 103.204(f).
Necessity of an Attorney
Under Illinois law, an association, citizens group, unit of local government, or
corporation must be represented before the Board by an attorney. In addition, an
individual who is not an attorney cannot represent another individual or other individuals
before the Board. However, even if an individual is not an attorney, he or she is allowed
to represent (1) himself or herself as an individual or (2) his or her unincorporated sole
proprietorship.
See
35 III. Adm. Code 101.400(a). Such an individual may nevertheless
wish to have an attorney prepare an answer and any motions or briefs, and present a
defense at hearing.
Costs
In defending against this formal complaint, you are responsible for your attorney
fees, duplicating charges, travel expenses, witness fees, and any other costs that you or
your attorney may incur. The Board requires no filing fee to file your answer or any
other document with the Board. The Board will pay any hearing costs (e.g., hearing
room rental, court reporting fees, hearing officer expenses).
If you have any questions, please contact the Clerk's Office at (312) 814-3629.
CERTIFICATE OF SERVICE
I, the undersigned, on oath or affirmation, state that on
0/
2
I L
,
20 08
I served the attached formal complaint and notice on the respondent by /
mc
certified mail (attach copy of receipt if available,
otherwise you must file receipt later with Clerk)
registered mail (attach copy of receipt if available,
otherwise you must file receipt later with Clerk)
messenger service (attach copy of receipt if available,
otherwise you must file receipt later with Clerk)
personal service (attach affidavit if available,
otherwise you must file affidavit later with Clerk)
at the address below:
RESPONDENT'S ADDRESS:
Name
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CLERK'S OFFICE
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STATE OF ILLINOIS
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RICH NEWLUN
Notary Public, State of Illinois
My Commission Expires 2-5-11
APR 10 2008
A ZIP CODE 60035
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