ILLINOIS POLLUTION CONTROL BOARD

April 30, 1987

JOHN W EILRICH,        

)

Complainant,

)

PCB 85—4

JAMES SMITH, d/b/a

MAYWOOD SHELL CAR WASH,

Respondent.

COMPLAINANT JOHN W~ EILRICH APPEARED ON BEHALF OF HIMSELF..

OPINION AND ORDER OF THE BOARD (by R. C. Flemal):

This matter comes before the Board on the filing of a formal

complaint on January 16, 1985, and an amended formal complaint on

February 4, 1985, by John W, Eilrich. Complainant alleges that

James Smith, doing business as Maywood Shell Car Wash, has

operated the car wash facility “from March 23, 1984, and before,

through January 12, 1985 and after”, in violation of 35 Ill. Adm..

Code 900.102 (Prohibition of Noise Pollution), 901.102(a) (Sound

Emitted to Class A Land), and 901..l03 (Sound Emitted to Class B

Land)..

Hearing was held on November 24, 1986 in Chicago,

Illinois. Complainant attended the hearing and presented

testimony and exhibits on his own behalf. Neither James Smith,

nor anyone else representing him or Maywood Shell Car Wash,

appeared at the hearing.

On February 5, 1987, the Board entered an Order requiring

James Smith to respond in writing to the Board showing cause as

to why the Board should not find him in violation of the

regulations cited by Complainant.. In so ordering, the Board

cited 35 Ill. Adm. Code 103220, which delineates the Board’s

authority in instances where a party fails to appear at

hearing. That section reads in full as follows:

Section 103.220   

Default

Failure of a party to appear on the date set for

hearing or failure to proceed as ordered by the Board

shall constitute a default. The Board shall

thereafter enter such order as appropriate, as

limited by the pleadings and based upon the evidence

introduced at the hearing.

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Respondent James Smith replied to the Board’s February 5,

1987, Order by filing three documents on March 9, 1987. The

first of these is a letter to the Board in which Smith asserts,

among other matters, that he is not in violation of the

regulations as cited by Complainant, that Shell Oil Company made

a bona fide effort to correct the alleged problem and to satisfy

Eilrich, that the claim of residential use of the Eilrich

property is not justified, that Eilrich has sold his property,

and that the complaint is a repeat of a previous complaint. The

second document consists of a cover letter and eight—page report

concerning an Illinois Environmental Protection Agency noise

survey conducted at the site on September 16, 1983.. The third

document is copy of a release and agreement entered into by the

Complainant and Respondent, dated March 21, 1984. For the

purpose of this record, these three items are considered as

Respondent’s exhibits 1, 2, and 3 respectively.

DISCUSS ION

The record attests that this dispute has long standing. As

the Board can best reconstruct its history, Complainant initially

sought to have Maywood Shell Car Wash reduce the noise emissions

from its operations sometime no later than mid—1983.. At that

time two noise surveys were conducted, one on July 7, 1983, by

the Illinois Environmental Protection Agency (Complainant’s

Exhibit 1), and the second on July 9, 1983, by SV Engineering, a

private engineering firm employed by Complainant (Complainant’s

Exhibit 2).. Both surveys revealed violations of the Board’s

noise emission regulations..

Within some time shortly following these two noise surveys,

Maywood Shell Car Wash apparently installed noise control devices

which were not able to eliminate the noise violations entirely,

but which were successful in bringing the noise emissions down to

levels acceptable to both the Agency and Complainant. This is

attested to by a cover letter and second noise survey conducted

by the Agency on September 16, 1983 (Respondent Exhibit 2),

testimony of Mr. Eilrich, and the agreement signed by Mr.. Eilrich

on March 21, 1984 (Respondent Exhibit 3).. The cover letter to

the second noise survey, addressed to Mr. James I McLaughlin,

Senior District Engineer, Shell Oil Company, noted “the

effectiveness of the noise reduction measures you have taken to

date” at the Maywood Shell Gas Station, but that “violations of

the Illinois Noise Pollution Control Regulations still exist

....“,

Eilrich also noted at hearing that “At the time they put

these curtains and sound containment materials in place, it was

agreed by everybody since they did seem to exhibit a good faith

try that even though they still were not in compliance, it was

good enough” (R. at 9—10).

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This first phase of the dispute then terminated with the

signing of the aforementioned March 21, 1984, agreement.. In this

agreement Complainant gave up, for a consideration, any claims

due to alleged noises up to and including the date of the

agreement.

The current phase of the dispute centers on subsequent

activities of Respondent.. Complainant asserts that at some

unspecified time since March, 1984:

they have removed 50 percent of the sound

containment barrier, which is one entire set of vinyl

curtains.. The remaining set of curtains, 80 percent

of the middle part has been taken out and the

remaining three to four strips on either side have

been thrown up over the blower system, in effect

reverting back to the original measurements

previously in the statement of the higher value of

the decibel excess per the allowed limits, R. at 10..

CONC LUS ION

The issue which the Board must decide in this matter is

whether, as Complainant alleges, Respondent has been in violation

of the cited regulations subsequent to March, 1984.. Respondent’s

filings are not illuminating in this respect, since they deal

with circumstances which existed prior to the time of the

currently alleged violations. Additionally, as previously noted,

Respondent did not attend the Board’s hearing, and therefore made

no attempt to dispute these allegations at hearing. In

particular, Respondent has made no attempt to dispute that the

previously existing noise abatement devices have been modified

such as to cause a reversion to the noise conditions which

existed prior to installation of the devices. Pursuant to 35

Ill.. Adm. Code 103.220 the Board therefore finds Respondent in

default.

The two July 1983 noise surveys clearly indicate that noise

levels absent the control devices are excessive, and that such

noise levels constitute violations. In view of the default of

Respondent, the Board can only conclude that these excessive

noise level exist once more, Accordingly, the Board finds that

Respondent is in violation of the regulations as cited.

The Board will therefore levy a penalty of $500 on

Respondent, and order that Respondent immediately take actions

necessary to abate the violations.. The Board determined that a

penalty is appropriate in this instance only after consideration

of the factors enumerated in Section 33(c) of the Environmental

Protection Act. Respondent has not attempted to refute

Petitioner’s evidence that noise emissions from the car wash are

in excess of the applicable regulations. Excessive noise levels

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can cause substantial interference with, and injury to, the

health and general welfare of persons living and working nearby

the source(s) of such emissions, The record indicates that

persons both live and work in close proximity to the emissions

from the Maywood Shell Car Wash (R. at 13; Complainant’s Exhibit

1)

This notwithstanding, the Board notes that the Maywood Shell

Car Wash has social and economic value, and that it may in fact

be suitable to the area in which it is located since the area

appears to be largely commercial in nature (Respondent’s Exhibit

1), Even so, these factors are outweighed by the apparent ease

with which the car wash’s emissions might be reduced. The Board

must assume that it is technically practicable and economically

reasonable to reduce these emissions, for they have been so

reduced before.. The Respondent has introduced no evidence which

could lead the Board to any other conclusion.

The Board will retain jurisdiction in this matter and

require that Respondent give demonstration that he has complied

with the Board’s Order. Failure to do so may cause additional

penalties to be levied against Respondent for continued

violations of the Board’s rules and regulations..

As a final matter, and in response to apparent suppositions

to the contrary by both parties, the Board notes that it is

statutorily incapable of awarding damages to any party in a

dispute before it.

This Opinibn constitutes the Board’s findings of fact and

conclusions of law in this matter,

ORDER

1. The Board finds that Respondent James Smith, d/b/a

Maywood Shell Car Wash, has violated 35 Ill. Adm, Code

901.102, 901,102(a), and 901.103.

2. Within sixty days of the date of this Order, Respondent

shall, by certified check or money order, pay a civil

penalty of $500 payable to the State of Illinois. Such

payment shall be sent to:

Illinois Environmental Protection Agency

Fiscal Services Division

2200 Churchill Road

Springfield, IL 62706

3. Respondent shall cease and desist from violations of the

Board’s regulations, and shall take immediate steps to

prevent additional violations..

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4. On or before May 29, 1987, Respondent shall have in

functional operation noise abatement devices sufficient

to prevent future violations of the kind alleged by

Complainant..

5. Within sixty days of the date of this Order, Respondent

shall notify the Board and Complainant in writing as to

whether it has complied with the provisions of

paragraphs 2 and 4 of this Order.

6, The Board retains jurisdiction in this matter..

IT IS SO ORDERED.

J.D, Dumelle and J, Theodore Meyer concurred.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control

Board, hereby certify that the above Opinion and Order was

adopted on the 

day of 6,1i~(. 

1987, by a vote

of

__________.

Dorothy N. c~4.inn, Clerk

Illinois Pollution Control Board

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