ILLINOIS POLLUTION CONTROL BOARD
December 14, 1994
JOSEPH A. SCHRANTZ, CHARLES
)
HULLIHAN, and ELIZABETH
)
STEARNS,
)
Complainants,
)
v.
)
PCB 93—161
(Enforcement)
VILLAGE OF VILLA PARK,
)
VILLA PARK ROTARY CLUB, VILLA PARK
)
KIWANIS CLUB, and VILLA PARK MASONIC
)
LODGE,
)
Respondents.
FRANK
P. TIGHE, III APPEARED ON BEHALF OF THE COMPLAINANT JOSEPH
A. SCHRANTZ, AND CHARLES HULLIHAN AND ELIZABETH STEARNS APPEARED
PRO SE;
JOHN N.
PIEPER APPEARED ON BEHALF OF THE RESPONDENT, THE VILLAGE
OF VILLA PARK; LEWIS JOHN CRAFT AND
DONNA CRAFT CAIN APPEARED ON
BEHALF
OF THE RESPONDENTS, THE KIWANIS CLUB AND THE MASONIC
LODGE; AND RICHARD C. ERNST APPEARED ON BEHALF OF THE RESPONDENT,
THE ROTARY CLUB.
OPINION AND ORDER OF THE BOARD (by C.A. Manning):
This matter is before the Illinois Pollution Control Board
(Board) pursuant to a formal complaint filed August 31, 1993 by
Joseph A. Schrantz, Charles Hullihan, and Elizabeth Stearns
against respondents, the Village of Villa Park, Villa Park Rotar
Club, Villa Park Kiwanis Club, and the Villa Park Masonic Lodge.
Respondents were the sponsors of Summerfest ‘93, a community
entertainment event which complainants allege was conducted in a
manner that violated the Environmental Protection Act (Act) and
the Board’s noise pollution regulations, 35 Iii. Adm. Code
Subtitle H, Section 900 et sea.2 A public hearing was held on
11n this opinion and order, the complainants will be referred to
hereinafter, either as “Schrantz”, “Hullihan”, “Stearns” or “complainants.”
The
respondents will be referred to as the “Village”, “Rotary Club”, “Kiwanis
Club”, “Masonic Lodge” or the “respondents.”
2The complaint, as filed by Schrantz, Hullihan and Stearns alleges
violations of the Act and regulations concerning both Summerfest, 1993 and a
second entertainment event called the “Summer concert Series.” (Complaint, at
7, attachment.) At hearing, Schrantz and Hullihan agreed not to present any
evidence regarding the concert series. Therefore, as the Summer Concert
Series is no longer at issue, it will not be considered in this matter and all
allegations concerning this event are stricken from the complaint. (Tr. at
15.)
2
January 19 and January 20, 1994 before then-Board Hearing Officer
Phillip R. Van Ness in Wheaton, Illinois.3 Each of the parties
filed a post-hearing brief. In addition, at the January 20th
hearing, Schrantz filed a motion to bar the expert testimony of
Mr. Robert C. Brandys. The Village of Villa Park filed a
response to the motion to bar with the Board on April 8, 1994.
For reasons more fully explained below, the Board does not
find the respondents in violation of the Act or the Board’s noise
regulations, and accordingly, dismisses this action.
PROCEDURAL
AND PACTUAL BACKGROUND
This case involves an outdoor music festival and carnival
called “Suuuuerfest ‘93” which was held in Villa Park on the
Illinois Prairie Path from July 15 through 18, in 1993.
Suinmerfest was sponsored by the Village of Villa Park and three
other organizations: Villa Park Rotary Club, Villa Park Kiwanis
Club and the Villa Park Masonic Lodge. According to the
respondents, the event is held each year for the purpose of
fundraising for, among other things, the organizations’
charities. (Tr. at 547.)
The Summerfest ‘93 events included live entertainment such
as puppet shows, demonstrations by the local police K-9 unit,
dance groups, rock bands, country and western bands and the
Salvation Army Band, a daily beer tent, nightly bingo, food, and
crafts. Each evening of Suiiimerfest ‘93 featured live
performances of different music groups, dance groups and
storytelling. Some of the performers featured during Summerfest
‘93 were: Tony Deleo & Sidekicks Square Dance Club, Middle
Earth, the Salvation Army Band and the official Band of the
Chicago Bears, Ben & The Gentleman. (Complainants’ Exh. #6.)
The location of the event itself was at the junction of the
DuPage County Parkway, which is also known as the “Prairie Path”,
and Ardinore Avenue in Villa Park. The “Gazebo” where the
entertainers performed and where the complainants alleged the
noise pollution originated, was located on property owned by the
Village. The Prairie Path itself, is a 10-foot wide nature path
made of crushed limestone that is used for walking and bicycling.
The Prairie Path originates in Villa Park on the boundary line of
Cook County and DuPage County and runs to Wheatori, Aurora and
Elgin. (Tr. at 26—27.) According to the Village, the County of
DuPage issued a permit for the event and the “use” of the
property for a festival coinports with Villa Park’s zoning
ordinance which allows festivals and carnivals. The land uses in
the vicinity of the Sununerfest ‘93 site are not merely
3Mr. Van Ness left the Board’s employ in May, 1994.
3
residential. There are many non—residential properties such as
the Villa Park Chamber of Commerce offices and an old historical
trainComplainant’station.s4Testimony
At the January 19 and 20 hearings, Frank P. Tighe III
appeared on behalf of one of the complainants, Joseph Schrantz.
Hullihan also attended and represented himself
pro
Se; although
subpoenaed to appear, Elizabeth Stearns failed to attend the
hearing. Schrantz and Hullihan testified on their own behalf on
the issues of how the noise emissions from the festival
unreasonably interfered with their enjoyment of life.
Complainants also called Richard Gullickson, an industrial
hygienist and environmental health and safety specialist to
testify regarding noise monitoring that he performed on July 16,
1993.
Joseph Schrantz testified that while he was visiting Mrs.
Elizabeth Stearns in her home, which is 100 feet from Suinmerfest
‘93, the noise from the festival was so loud that it interrupted
his ability to carry on a conversation. According to Schrantz,
the noise level was so intense, it would almost make his head
“rattle.” (Tr. at 52 and 68.) Again, Mrs. Stearns, a co-
complainant in this action, did not appear and did not testify
regarding any impact from the noise on her enjoyment of life, or
her home. Schrantz also testified that the “aggressive noise
level” of Suiurnerfest played a “very important part” in
“contributing to his view” that the Prairie Path nature trail had
been “desecrated.” (Tr. 212—213.) Schrantz lives two blocks
from the site of Summerfest ‘93 at 532 S. Princeton and when he
was in his home during the festival, he was able to watch T. V.,
read or sleep without interruption. (Tr. at 236—237.)
Co-complainant Charles Hullihan lives at 37 West Park
Boulevard, which is approximately 60 feet from the Summerfest ‘93
site. (Tr. at 250.) According to Mr. Hullihan, his wife, who
was not a complainant in this case and who did not testify at the
hearing before the Pollution Control Board, spent two nights of
the festival in her home (Tr. at 243) and the other two nights
she stayed with her mother in order to “get to sleep at a decent
4During the January 19 hearing, Mr. Tighe made an oral motion that the
Pollution Control Board Members “view” the Summerfeet ‘93 site sometime
between the hearing and the decision. (Tr. at 261.) While our procedural
rules at 35 Ill. Adm. Code 101.241(a) allow motions to be made at hearing, the
hearing officer instructed that the motion be made in writing and transmitted
to the Board. (Tr. at 262—63.) No written motion has been filed with the
Board; therefore, we assume that parties do not wish the Board to rule on the
request. We note there is sufficient detail in the record to show the
location of the Summerfest ‘93 site in the Village of Villa Park, and the
proximity of the site to the Hullihan and Stearns residences.
4
hour.” (Tr. at 245.) During Suinmerfest ‘93 and at the time of
hearing, Mrs. Hullihan was diagnosed with chronic fatigue
syndrome. (Tr. at 244.) There is however, no evidence or
argument in this case that the noise from Summerfest ‘93 is
either the cause or is in any way related to her illness. There
is also no evidence that while Mrs. Hullihan was at home, she
could not sleep. It was Mr. Hullihan’s testimony that when he
and his wife were at home together the first night of the
festival, they had to speak at higher levels and to increase the
volume of the television. (Tr. at 245.) The other two evenings
of the festival, Mr. Hullihan stayed up “a little later” than he
normally would have and waited until the music and the festival
ended before going to bed, but otherwise, he did not recall
having to do anything more to compensate for the noise than
increase the volume of his television. (Tr. at 245—46.) Mr.
Hullihan filed no complaints with the Villa Park police
department during Summerfest ‘93 (Tr. at 253), but he did
complain during Summerfest ‘92 to the Villa Park police and
before the Summerfest ‘93 Commission prior to the event taking
place. (Tr. at 255—56.)
Regarding numerical violations of the Board’s noise emission
standards, the complainants called Mr. Gullickson to testify. He
performed a sound analysis of the Summerfest ‘93 noise levels on
Friday, July 16, 1993 and took sound level recordings from 7:15
p.m. to 11:15 p.m. from Mrs. Stearns’ residence. He measured the
noise levels in 10 second samples using a one minute and 50
second reference period. (Tr. at 197 and 239.)~ Gullickson made
the recording using the one minute and 50 second reference period
because “it seemed reasonable” to take the measurement while the
songs were being performed and not before or after. (Tr. at 156—
158 and 188.) Except for one recording, all were taken while a
band was playing. (Tr. at 197.)
ResPondent’ 5 Testimony
On behalf of the respondents, John Pieper appeared for the
for the Village, Lewis John Craft and Donna Craft Cain for the
Kiwanis Club and the Masonic Lodge, Richard C. Ernst for the
Rotary Club. The respondents called eight witnesses: Lee
5At hearing, the complainants offered Gullickson’s written report of the
evening’s measurements which showed different time intervals than that
testified to by Mr. Gullickson. In the case of measurements taken before
10:00 p.m., the chart shows that readings were taken for five minutes
intervals (Exh. 9) and in the case of measurements after 10:00 p.m., the
report indicates that the measurements were taken in three minute intervals
(Bxh. 10). On cross-examination, Gullickson explained that the correct time
interval is one minute 50 seconds, and the other times in the written report
account for activation of the equipment, having the equipment record the data
in 10 second intervals, running through the octave band and manually recording
the information. (Tr. at 149.)
5
Ohlman, James McNamara, Daniel S. Hixon, Deborah A. Kuramitsu,
Walter Alen, Robert C. Brandys, Carl F. Roth, and David S. Cain.
Respondents called Lt. Lee Ohiman and Officer James McNamara
of the Villa Park Police to show that the Village received only
one anonymous complaint about the noise levels coming from the
Prairie Path during Summerfest ‘93. Officer McNamara
investigated the complaint, determined that the complaint had no
merit, and investigated it no further. (Tr.at 294—302.)
Regarding technical practicability and economic
reasonableness of the noise emission controls, respondents called
Daniel S. Hixon of Prism Enterprises who was hired by the Rotary
Club to control the sound levels. In particular, Mr. Hixon
explained that Prism Enterprises used a sound control board to
control noise levels and that the board was manned by a sound
technician. (Tr. at 307-331.) The company also used a sound
system that was one—half or one—third the size it would have
normally used for an area the size of the Summerfest ‘93 site.
Mr. Hixon testified that his company used the small system due to
the concerns of some of the area residents and to attempt to
minimize the sound levels. (Tr. at 307-308.) He was specifically
directed by the Suminerfest ‘93 sound committee, to make sure his
company kept as much sound as possible on the festival grounds,
and to minimize sound on adjacent areas. (Tr. at 322.)
Regarding other measures employed by the Summerfest ‘93
Commission to mitigate sound emanating from Summerfest ‘93,
Deborah A. Kuramitsu, member of the Rotary Club and the Village
Summerfest Commission, personally checked the sound levels during
the performances. She stood in front of the Hullihan and Stearns
residences and tried to hold conversations at normal levels.
Several times she asked the sound technician to turn down the
sound levels. (Tr. at 505; see also Hixon Test. Tr. at 312.)
When the sound control board could turn the sound levels down no
further, she requested one of the bands to turn down its
amplifiers. (Tr. at 511.) Walter Alen of Alen Engineering
Company, member of the Rotary Club and Summerfest sound
committee, testified that he accompanied Ms. Kuramitsu to the
Hullihan and Stearns residences to determine whether they could
have conversations at normal levels during the concert. (Tr. at
528—30.) The sponsors also put the right to control the sound
levels of the bands into the actual entertainment contracts and
(Tr. at 501) changed the hours of the Summerfest from prior
years, and decreased the number of rides in the carnival. (~g
Hullihan Test. Tr. at 255-57.)
Mr. Robert C. Brandys, from Occupational & Environmental
Health Consulting Services, Inc., testified about the monitoring
procedures employed by the complainants’ consultant when
measuring the sound emissions and how the procedures failed to
meet the standards of the Board’s noise emission testing
6
requirements.6 (Tr. at 361-376.) Mr. Brandys suggested that
the minimum time-averaging period that should be utilized in
monitoring noise is at least a five minute Lcqi and that any
shorter period does not meet the Board’s noise monitoring
requirements. (Tr. at 361.) Gullickson used only 10 second
sampling periods during isolated portions of songs and a one
minute and 50 second L~. (Tr. at 361.) Mr. Brandys testified
that taking peak readings does not characterize the noise problem
over a large amount of time, and that continuous monitoring needs
to be performed. (Tr. at 370.) He believes the data collected
by Gullickson should be interpreted as “instantaneous sound level
readings” rather than L~readings (Tr. at 373), and when
interpreted as such, the data lies in the range of normal
conversation levels. (Pr. 373-376 and Res. Exh. #2.)
Respondents also called various members of the sponsoring
organizations who were also active in the planning of Summerfest
‘93 to testify regarding the social and economic value of the
festival and the suitability of the location for the festival:
Carl F. Roth, former President and Trustee of the Village of
Villa Park, former County Board member and member of the
Suinmerfest ‘93 Commission, testified that the Summerfest offered
an “opportunity for social togetherness for families to get out
and enjoy and experience in the outdoors.” (Tr. at 476.) He
also indicated that the Kiwanis Club anticipated using the
profits from Summerfest ‘93 to help build a handicapped—
accessible park for the Village of Villa Park. (Tr. at 479.)
David Cain, president of the Rotary Club and treasurer of
Summerfest, also testified that the net profits received from the
festival were used to help charitable organizations and the
community. (Pr. at 547.)
ISSUES PRESENTED
POR
REVIEW
The complaint, as filed by Joseph Schrantz, Charles Hullihan
and Elizabeth Stearns, presents the following issues for our
review: One, whether the noise levels of Suininerfest ‘93 violated
the Board’s noise emission standards found at 35 Ill. Adm. Code
901.102; and two, whether the noise levels of Summerfest ‘93
created a nuisance which unreasonably interfered with the
6Pursuant to 35 Ill. Adm. Code Secs. 101.220 and 103.220, Schrantz filed
a written motion to bar the testimony of Mr. Robert Brandys at the January 20
hearing. Schrantz argued that his case is prejudiced by the “unfair
surprise” of Mr. Brandys appearing as a witness with no advance warning and
after the closure of discovery. The hearing officer allowed the testimony
subject to the Board’s final ruling on the motion to bar. (~ Tr. at 289 and
345.) Having reviewed the motion and the written response, we agree with the
Village of Villa Park that Mr. Brandys being called to testify does not
prejudice the complainants’ case. None of the parties engaged in discovery in
this matter, in part due to the complainants’ assurances this case would
settle. The motion to bar is denied.
7
complainants’ enjoyment of life, violating Section 24 of the Act
and our regulations at 35 Ill. Adm. Code 900.102.
APPLICABLE
LAW
The following is a recitation of the applicable statutory
provisions and regulations that are at issued in this case and
analyzed herein:
The Environmental Protection Act:
Section 23
The General Assembly finds that excessive noise
endangers physical and emotional health and well-being,
interferes with legitimate business and recreational
activities, increase construction costs, depresses
property values, offends the senses, creates public
nuisances, and other respects reduces the quality of
our enviromnent. (415 ILCS 5/23.)
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. (415 ILCS 5/24.)
Section 25
The Board, pursuant to the procedures prescribed in
Title VII of this Act, may adopt regulations
prescribing limitation on noise emissions beyond the
boundaries of the property of any person and
prescribing requirements and standards for equipment
and procedures for monitoring noise and the collection,
reporting and retention of data resulting from such
monitoring.
* **
For purposes of this Section and Section 24, “beyond
the boundaries of his property” or “beyond the
boundaries of the property of any person” includes
personal property as well as real property. (415 ILCS
5/25.)
Section 33(c)
In making its orders and determinations, the Board
shall take into consideration all the facts and
8
circumstances bearing upon the reasonableness of the
emissions, discharges or deposits involved including,
but not limited to:
i. the character and degree of injury to, or
interference with the protection of the health, general
welfare and physical property of the people;
ii. the social and economic value of the pollution
source;
iii.
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;
iv. the technical practicability and economic
reasonableness of reducing or eliminating the
emissions, discharges or deposits resulting from such
pollution source; and
v. any subsequent compliance. (415 ILCS 5/33(c).)
The Illinois Administrative Code
—
35 Ill.
Adm.
Code Section 900
et sea.
Section 900.101 Definitions
Noise Pollution: the emission of sound that
unreasonably interferes with 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.
Section 900. 103 (b) Measurement Procedures
b) All measurements and all measurement procedures to
determine whether emissions of sound comply with 35
Ill. Adm. Code 901 shall be in substantial conformity
with ANSI S1.6—1967, ANSI 51.4—1971
——
Type I
Precision, ANSI S1.11—1966 and ANSI S1.13—1971 Field
Method, and shall, with the exception of measurements
to determine whether emissions of sound comply with 35
Ill. Adm. Code 901.109, be based on L~averaging, as
9
defined in 35 Ill. Adm. Code 900.101, using a reference
time of one hour. All such measurements and
measurement procedures shall correct or provide for the
correction of such emissions for the presence of
ambient noise as defined in ANSI S1.13-1971.
ARGUMENTS OF
THE
PARTIES
Turning to the first issue, whether Summerfest ‘93 violated
the Board’s numerical standards found in Section 901.102, the
complainants allege in their complaint that monitoring reports
made of the sound levels emitted from Suminerfest ‘93 demonstrate
exceedences of the Board’s numerical standards. (Petition at 2.)
At hearing, the complainants offered the testimony of Gullickson
that he took approximately 300 measurements monitoring the sound
levels from 7:15 to 11:10 p.m. on Friday, July 16, 1993 all in
one minute and 50 second intervals. (Tr. at 117, 119, 127 and
Complainants’ Exhibits 11-21.) He measured the sound levels from
the Stearns residence at 326 South Princeton (Tr. at 119) and
from the Hullihan residence at 37 West Park Boulevard (Tr. at
121). According to the complainants, except for the lowest
frequency measured, the majority of the measured levels exceeded
the maximum allowable levels for noise emissions from Class B
lands to Class A lands in violation of Section 901.102.~
(Gullickson Test. Tr. at 134.) The complainants offered
Gullickson’s testimony that the exceedences varied between 15 and
40 decibels higher than the allowable standard.8 (Pr. at 136—
142.)
In response, the respondents argue that no violation of the
numerical standards has been proven in this case. They contend
that despite Gullickson’s direct testimony regarding exceedances
of the Board’s noise emission standards, the measurements were
not made in compliance with the Board’s noise monitoring
requirements. Relying on Dettlaff v. Boado (July 1, 1993), PCB
92—26, a case in which the Board refused to consider noise
monitoring using improper measuring techniques, respondents argue
that the Board should also disregard the noise monitoring reports
7Gullickson testified that the land on which the Prairie Pathway is
located is moat likely considered to be Class A land; however, when it was
used for Summerfest ‘93, it should be considered “Class B.” (Tr. at 108.) He
also testified that there is no regulatory significance because the standards
for Class A and Class B are the same. (~~)
Gullickson did not measure the background sound at the carnival, though
he did take at least one reading of the carnival itself when no band was
playing (Tr. at 197) and one reading inside of Mrs. Stearns home. In his
professional opinion, Gullickson testified that the probable ambient noise
level at the carnival was in the range of 40 to 45 decibels. (Tr. at 195.)
Gullickson also testified that a quiet office had a noise level of 55
decibela.(Tr. at 193.)
10
offered as proof of a violation in this case. They assert that,
under the Board regulations found at 35 Ill. Adm. Code 900103(b)
and Dettlaff, in order to prove a violation of Section 901.102,
the complainants would need to have monitored the sound emissions
using a reference time of one hour rather than 10 second samples
in a one minute 50 seconds averaging period as was used here.
Respondents also cite to Vi1lac~eof Matteson v. World Music
Theater (February 25, 1993), PCB 90—146, for the proposition that
if anything less than a one hour L~measurement period is used,
compelling testimony or evidence must be shown to demonstrate why
the lesser sampling period is justified. In World Music Theater,
the Board determined that a five minute averaging period would be
appropriate for determining future compliance because between the
music sets, no substantial sound was generated. Unlike World
Music Theater, respondents point to the complete lack of
testimony in this case as to why anything less than one hour was
appropriate. Respondents point out that the simple testimony of
complainant’s expert witness was that one minute 50 seconds was
selected because it seemed “reasonable.”9 (Pr. at 156—158 and
188.)
Regarding the second issue presented for our review, whether
the noise levels emitted from Summerfest ‘93 resulted in a
nuisance violation of Section 24 of the Act and Section 900.102,
complainants argue that the undisputed testimony of Charles
Hullihan and Joseph Schrantz proved that each suffered
unreasonable interference with his enjoyment of life.
(Complainant’s Reply Brief at 3.) Complainant’s also offer the
noise measurements taken by Gullickson as evidence that the
respondents violated Section 900.102. According to the
complainants, the exceedance information may be used to prove a
Section 900.102 violation and the measurements need not conform
to the same rigid measurement requirement set forth for proving a
violation of Section 901.102. (Reply Brief, at 6—7.)
Complainants urge a finding in this case that the record
demonstrates “unreasonable interference” for four of the five
statutory factors guiding the Board’s consideration of
“reasonableness.” The Section 33(c) factors are: “character and
degree of interference,” “social and economic value,”
“unsuitability of the site” and “practicability of eliminating
emissions.” The last factor, “subsequent compliance,” both
parties agree is inapplicable to these proceedings.
9At hearing, complainant’s expert witness, Gullickson testified that the
monitoring reports admitted into the record as complainant’s Exhibits 11—21,
show averaging periods of five minutes. Gullickson testified that in fact,
the averaging time was one minute 50 seconds, and that the five minute time
represents the time in which it took Gullickson to collect the data and
manually record it. (Tr. at 149.)
11
On the other hand, respondents argue that a violation of the
Act or the regulations can only occur if the noise pollution is
more than just “interference.” The noise emissions must result
in “unreasonable” interference, i.e., the sounds emitted from
Summerfest ‘93 must objectively affect the complainants’ life or
business activity. (Villa Park Br. at 12, citing Dettlaff v.
Boado (July 1, 1993) PCB 92-26.) Respondents believe that the
Board must apply a balancing test here, as it has in the past and
that in this case, the benefit of holding Summerfest far
outweighed any inconvenience the complainants may have
experienced.
Character and Degree of Injury
As to the “character and degree of injury” of Summerfest,
the complainants argue that this four-evening “rock” concert
clearly interfered with the health of the Hullihan family, the
Stearns’ physical property, and Schrantz’ enjoyment of life.
(Reply Brief at 9.) Mrs. Hullihan had to leave the house in
order to go to bed early. Mrs. Stearns could not enjoy company
in her home because of the noise levels. Mr. Schrantz could not
enjoy the Illinois Prairie Path because of the sound level of the
music emitted from Sununerfest ‘93.
Respondents argue that the testimony fails to establish any
significant injury either to health, general welfare or physical
property. Schrantz was able to watch television, read and sleep
without interference, and ultimately his real concern with
Suinmerfest ‘93 was that he was concerned and upset at seeing the
Illinois Prairie Path “desecrated” rather than upset with any
interference the noise levels may have caused. (Villa Park Brief
at 13.) Mr. Hullihan was able to watch T.V. when he increased
the volume. The Kiwanis Club and the Masonic Lodge point out
that Mrs. Hullihan left the house to in order to get some sleep,
but there is no testimony of how the noise affected her while she
was at home, other than that she and her husband had to raise
their voices to have a conversation and turn the television
volume up. Respondents finally argue that the Board should not
consider any evidence about how Suinmerfest ‘93 affected Mrs.
Stearns because she failed to appear at hearing.
Social and Economic Value
Regarding the second factor, complainants do not deny that
the Sununerfest had “certain social and economic value,” but argue
that the “real economic winners” were vendors, and not
necessarily the charities. Complainants also point out that the
noise was created by the free rock concerts, and not the vendors
or other activities which were a source of revenue, and no
testimony was offered that the loud music contributed to the
revenue generated by Summerfest.
12
Respondents argue that the festival is sponsored by not—f or-
profit corporations who were seeking to provide the community
with an opportunity for “social togetherness.” (Villa Park Brief
at 14.) The respondents also argue that there is high social
value because some of the net proceeds were to be returned to the
community.
Suitability of the Site
As to the suitability of the site, complainants essentially
argue that it is axiomatic that the site is unsuitable.
Complainants argue that the site is approximately 100 feet from
residences, and is therefore inappropriate for a live,
electronically amplified music festival and carnival. (Reply
Brief at 11.)
Respondents believe that the site is suitable mainly because
the land on which Sumnierfest ‘93 was held is zoned by Villa Park
for festivals and carnivals. In addition, the respondents argue
the location was ideal for the community because there are non-
residential properties in close proximity and because it was in
the heart of Villa Park.
Technical Practicability and
Economic Reasonableness of Reducing
or Eliminating the Emissions
Complainants cite the lack of testimony altogether regarding
this factor. According to the complainants, no one testified
that noise pollution could not have been eliminated entirely from
the Suinmerfest. No one testified as to why a different location
was not selected. No one testified as to why the concerts had to
extend past 10:00 or 11:00 p.m. in the evening. (Reply Brief at
11.)
The respondents on the other hand, argue that they had made
great effort to control, to the extent possible, the noise levels
emanating from Suinmerfest ‘93. These efforts included using a
sound control board, shortening the hours from prior Suinmerfest
festivals, placing the sound control clause in the contracts,
making rounds to check sound levels and asking the bands to turn
the amplifiers down. (Villa Park Brief at 16.)
13
ANALYSIS
In Section 23 of the Environmental Protection Act, the
legislature declared that
“excessive noise endangers physical and emotional
health and well—being, interferes with legitimate
business and recreational activities, increase
construction costs, depresses property values, offends
the senses, creates public nuisances, and other
respects reduces the quality of our environment.”
In so doing, the legislature prohibited noise emissions which
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 the Act. (415 ILCS 5/24.)
The Board has adopted a two—part regulatory scheme for the
control of noise pollution which includes specific monitoring
techniques for measuring noise emissions. The first part is a
specific set of numerical limitations on the characteristics of
sound that may be transmitted from source to receiver. These
regulations are found in 35 Ill. Adm. Code Part 901, of which
Section 901.102 is at issue in this case.
The second method of implementing the noise provisions of
the Act is the general prohibition on noise pollution found in
Section 900.102. Section 900.102 provides:
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.
Additionally, Section 900.101 defines noise pollution as the
emission of sound that unreasonably interfere with the enjoyment
of life or with any lawful business or activity. (35 Ill. Adm.
Code 900.101.) These two provisions, Sections 900.101 and
900.102 read together with Section 23 of the Act, constitute a
public nuisance standard for noise pollution control. (Kvatsak
V.
St. Michael’s Lutheran Church (August 30, 1990) PCB 89—182,
114 PCB 765, 768.)
Pending before us today are alleged violations of the Act
and the Board’s regulations on both numerical and the public
nuisance theory.
When
we examine whether there has been a
violation of the numerical standards, we are concerned with
whether the measurement procedures comply with the Board’s
regulations. (Curtis. et al. v. Village of Lake in the Hills et
~ (April 8, 1993) PCB 91—30, slip. op. at 16; Dettlaff, slip op
at 7—8.) When we consider alleged violations of the public
14
nuisance regulations, we are concerned with whether the objective
evidence demonstrates an unreasonable interference with life,
business or other lawful activities. (Kvatsak, 114 PCB at 772 and
Dettlaff slip op. at 12.)
A.
Numerical Violations
We find that in this case, there is no violation of Section
901.102 of the Board’s regulations. While it may be that
Gullickson used a measuring instrument in conformance with the
Board’s regulations, that he may have calibrated the noise
monitoring machine correctly, or that he may have made the
measurements from the proper distance of the noise emission
source of 25 feet, Mr. Gullickson’s own reports and testimony
confirm that he did not make the measurements using the
regulatory-required reference time of one hour intervals.
The noise level measuring requirements of Section 900.103(b)
are specific and designed to provide sufficient evidence of
excessive noise emission which have lasting duration, and the
Board has adopted a one hour L~reference period. (See e.g. In
the Matter of: General Motors Co. Proposed Amendments to 35 Ill.
Adni.
code 900.103 and 901.104 (January 22, 1987), R83—7.) The
noise monitoring in this case does not comport with the Board’s
own regulations at Section 900.103(b) and therefore the sound
data offered in this case is invalid. Without valid sound data,
complainants have not shown a violation of Section 901.102. (~g
Dettlaff, slip. op. at 7)
Even if the Board were inclined to allow a shorter reference
period of less than one hour, there is no evidence in the record
for doing so. For instance, in World Music Theater, we allowed a
five minute reference period for monitoring future compliance,
but did so after requiring the use of one hour reference periods
to ascertain whether there was a violation of the Board’s noise
standards. (World Music Theater, slip op. at 45-46.) In this
case, Gullickson merely testified that he made the noise emission
measurement using a one minute and 50 second reference period
because “it seemed reasonable” to take the measurement while the
songs were being performed and not before or after. (Tr. at 156-
158 and 188.)
The Board accordingly dismisses the allegation of the
compliant.
B. Nuisance Violations
With regard to whether the respondents have violated Section
24 of the Act and Section 900.102, the Board finds no violation.
In the past, the Board has considered the reasonableness of noise
emissions by reviewing the testimony presented by complainants
15
and weighing the severity, frequency and duration of the
interference. (See e.g. Citizens of Burbank v. Overnite
Trucking (1985) PCB 84—124, 65 PCB 131, 136 and 138 and Turner v.
Mark Ediniston (February 27, 1992) PCB 91-147, 130 PCB 262-63.)
In weighing the severity of the alleged noise pollution, the
Board has balanced the interests of the person or persons
alleging harm against the value of the noise source, utilizing
the criteria set forth by the legislature. (See e.g. Ferndale
Heights Utilities Co. V. IPCB and IEPA (1st Dist. 1976), 41 Ill.
App.3d 962, 358 N.E.2d 1224.) To reiterate, the Section 33(c)
factors are:
i. the character and degree of injury to, or interference with
the protection of the health, general welfare and physical
property of the people;
ii.
the social and economic value of the pollution source;
iii. 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;
iv. the technical practicability and economic reasonableness of
reducing or eliminating the emissions, discharges or
deposits resulting from such pollution source; and
v. any subsequent compliance. (415 ILCS 5/33(c).)
In this case, when we weigh the complaints of interference,
which are having to turn up the television or raising voices
during conversation, against the evidence offered by the
respondents regarding the Section 33(c) factors, in our opinion,
the balance weighs in favor of the respondents. Summerfest ‘93
was a public, family—oriented event that was designed not only to
provide an opportunity for “social togetherness,” but to raise
money for various not—for—profit concerns that would mean
returning some of the proceeds to the community for special
projects. (Villa Park Brief at 15.) The event lasted four days
and evenings during the year, and there is no evidence in this
record of any excessive duration of noise emissions that would
unreasonably interfere with complainants’ enjoyment of life or
use of property.
When considering the complainants’ alleged “unreasonable
interference” we are persuaded that Mr. Schrantz suffered no
interference while in his home; his complaints stemmed from his
visits to Mrs. Stearns’ home during the festival. Mrs. Stearns
did not appear and any testimony regarding the effect of the
noise on her is hearsay, and therefore there is no evidence
whatsoever in this case regarding interference with her life,
business or lawful activity. Finally, while Mr. Hullihan may be
the only complainant to have offered any proof of interference
16
with his life or home, we find that any degree of discomfort he
may have experienced during the four days of the festival, such
as raising the T.V. volume or going to bed at a later time, does
not rise to a level of unreasonable interference so as to
constitute a noise violation as contemplate in Section 900.102;’°
neither do the noise levels rise to the level of “noise
pollution” as defined in Section 900.101.
The clear evidence in this case is that Sununerfest ‘93
festival was sponsored by the Village of Villa Park and several
service organizations for the citizens of Villa Park and for
purpose of raising funds for the benefit of the community and
charitable purposes. The sponsors gave great weight to
complaints voiced during the planning stages of the Suinmerfest
‘93 by citizens such as Mr. Hullihan, who is also a complainant
in this action. The sponsors used a sound control board and set
the sound levels so that conversations could be heard from the
neighboring residences. Provisions were placed in the
entertainment contracts to give control over sound to the
Summerfest ‘93 sound committee and that authority was exercised
by respondents. The Summerfest ‘93 sound committee made rounds
during the concerts checking to see if normal conversations could
take place while the bands were playing. When the noise reached
a level that the sound board could not control, a band, on one
occasion was requested to turn down its amplifiers.
While one of the complainants, Mr. Charles Hullihan did live
close to the Suinmerfest, and obviously did not consider the
location or the noise levels ideal, the parcel of land on which
the concerts occurred was zoned by the Village for carnival use.
The area in which Summerfest ‘93 was located was not a strictly
residential neighborhood. Summerfest ‘93 was located next to
Ardmore Avenue, which is a major arterial street, near the
Chamber of Commerce and also near an historic railroad station.
The Board has historically found that, for there to be a
finding of a nuisance noise violation, the interference must be
beyond “trifling interference, petty annoyance, or minor
discomfort.” (Turner, 130 PCB at 269.) There must be some
evidence of frequent occurrence that is of a continuous nature so
Ultimately,as
to cause
whileinterruptionthere isofevidencenormal
enjoymentin
this caseof
life.of
some
(~~)
interruption of normal activity during the four-day period, such
as turning up the television or Mr. Hullihan waiting to go to
sleep on Friday and Saturday night until after the festival was
over at 11:30, we find that this degree of interference does not
rise to a level of unreasonable interference with his enjoyment
10We
note that it was Mrs. Hullihan who allegedly left her home because
of the noise, however she is not a complainant in this action and accordingly
we cannot consider any effect the festival may have had on her life.
17
of life, any lawful business or activity, so as to constitute a
nuisance violation.
We accordingly find that the complainants have failed to
provide proof to support the noise nuisance portion of their
complaint, which is hereby dismissed.
This opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
For the reasons stated in the foregoing opinion, the Board
hereby finds that respondents have not violated the Act or the
Board’s regulations. Accordingly, all relief sought by the
complainants is denied. The complaint is dismissed and the
docket in this matter is hereby closed.
IT IS SO ORDERED.
Section 41 of the Environmental Protection Act (415 ILCS
5/40.1) provides for the appeal of final Board orders within 35
days of service of this decision. The Rules of the Supreme Court
of Illinois establish filing requirements. (See also, 35 Ill.
Adm. Code 101.246, Motions for Reconsideration.)
I, Dorothy M.Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the above opinion and order was
adopted on the
/~L~
day of~-~~
,
1994, by a vote of
/1
— /
~
/t—~~~
Dorothy
NJ
unn, Clerk
Illinois Pollution Control Board
