ILLINOIS POLLUTION CONTROL BOARD
ANTHONY AND KAREN ROTI, PAUL
)
ROSENSTROCK, AND LESLIE WEBER
)
)
Complainants,
)
)
V.
)
PCB99-19
)
LTD COMMODITIES,
)
)
Respondent.
)
CLERK’S OFRCE
MAY 2 7 2003
STATE OF IWNOIS
Pollution Control Board
NOTICE OF FILING
To:
Joseph E. Kolar, Esq.
BAIZER
&
KOLAR, P.C.
513 Central Avenue, 5th Floor
Highland Park, Illinois 60035
Bradley P. Halloran
Illinois Pollution Control Board
100W. Randolph, Suite 11-500
Chicago, Illinois 60201
Please take notice that on Friday, May 23, 2003, I caused to be filed with the Clerk ofthe
Illinois Pollution Control Board Complainants’ Reply To LTD’s Closing Brief Regarding
Appropriate Remedies and
-
copies ofwhich are attached
hereto.
The undersigned, an attorney
e~ at he caused a copy ofthe Notice Of Filing to be served on
counsel for Respondents by depositin the sam in th U
States Mail: at
35
E. Wacker Drive, Chicago, Illinois
6060 lenclosed in an envelope plainly a
ss d
Jose
E. Ko
5 3 C ntral Avenue,
5th
Floor, Highland Park,
Illinois 60035, with postage fully prepaid, b o
5:0
o
ay
,
.
The Law Office Of Steven P. Kaiser
35
E. Wacker Drive, Suite 1750
Chicago, Illinois 60601
312.372.4779
Dated: May 23, 2003
CERTIFICATE OF SERVICE
SUBMITTED ON RECYCLED PAPER
ILLINOIS POLLUTION CONTROL BOARD
RECE~j~~
CLERK’S OFFICE
ANTHONY AND KAREN ROTI, PAUL
)
MAY 2 7 2003
ROSENSTROCK, AND LESLIE WEBER
)
STATE OF ILLINOIS
)
Pollution Control Board
Complainants,
)
)
v.
)
PCB99-19
)
LTD COMMODITIES,
)
)
Respondent.
)
UNOPPOSED MOTION FOR LEAVE TO FILE
-
COMPLAINANTS’ REPLY TO LTD’S CLOSING BRIEF REGARDING
APPROPRIATE REMEDIES
Complainants, by and through their attorney, Steven P. Kaiser, request leave to file
instanter
Complainants’ Reply To LTD’s Closing Brief Regarding Appropriate Remedies. The
Complainants’ Reply Brief is past due. counsel for Complainants was unable to complete the
brief by May 6, 2003, at least in part because certain exhibits were not on file with the Board
and, instead, were in the custody ofcounsel for LTD. Counsel for LTD Commodities has
advised counsel for complainants that LTD does not oppose the late filing ofComplainants’
Reply Brief. The Board may benefit from the analysis ofLTD’s arguments contained in the
Reply Brief.
WHEREFORE, the complainants request that the Board allow the filing
instanter
of their
Reply Brief.
Respectfully submitted,
LESLIE WEBER, PAUL
OSEN TROC
KAREN
HNYR
By:
n
f th ir attorneys
One oftheir attorneys
Steven P. Kaiser, Esq.
The Law Office Of Steven P. Kaiser
4711 GolfRoad, Suite 700
Skokie, Illinois 60076
847.677.7066
Dated: May 23, 2003
SUBMITTED ON RECYCLED PAPER
RECEIVED
ILLINOIS POLLUTION CONTROL BOARD
CLERK’S
OFFICE
ANTHONY and KAREN ROTI, PAUL
)
MAY 2 7 2003
ROSENSTROCK and LESLIE WBBER,
)
STATE OF
ILLINOIS
-
)
Pollution Control Board
-
Complainants,
)
)
v.
)
PCB99-19
)
LTD COMMODITIES,
)
Noise Enforcement
)
Respondent.
)
COMPLAINANTS’ REPLY TO LTD’S CLOSING BRIEF
REGARDING APPROPRIATE REMEDIES
I
Summary of Complainants’ Position.
Nothing in LTD’s Closing Briefpersuades the Complainants that the Illinois Pollution
Control Board should not order LTD Commodities to do the following: (1) turn offthe backup
warning beeper on the yard tractors both during day time and night time hours ofoperation; (2)
prohibit tractors and trailers from stopping, standing or parking on the ramp connecting the dock
area with Lakeside Drive and on Lakeside Drive during day time and night time hours of
operation; and (3) construct a noise wall with a length ofapproximately 520 feet and a top
elevation of710 feet above sea level (with an average height of 25 feet above grade).
II
LTD should disconnect the backup warnin2 beeper during day time and night time
operations.
LTD states that it has committed to turning offthe backup beeper on its yard tractor at
night and has agreed tO hire a dock pilot for use at night to keep trucks offLakeside Drive. (Jack
Voigt, October 16, 2002, p. 53 and Closing Brief, page. 4.) The Board should order LTD to
implement these practices during both night time and day time operations.
Both the Complainants and members ofthe public complained about the back~ipwarning
devices on trucks and yard tractors. (See page 7. ofthe Board’s February 15, 2001, Order.)
Karen Roti testified that she heard the beeping noise from LTD starting as early as 5:30 a.m. Tr.
at 718-721. Dr. Schomer described the sound ofthe backup warning beeper as “piercing.” (Tr.
10/15/02 at page 60.)
LTD can operate without relying upon the back up warning beeper as evidenced by its
commitment to do so during nighttime hours ofoperations and by its willingness during the first
phase ofthe hearing in November 1999 to curtail use ofthe back up warning beeper. The Board
should order LTD to disconnect the backup warning beepers during day time operations as well
as night time operations.
III
Circumstances have not chanced substantially at LTD’s Bannockburn, Illinois
facility.
On page 1. of its Closing Brief, LTD trumpets the fact that for the first time in six years it
did not operate a second shift at its Bannockburn facility between the middle ofOctober and
middle ofDecember. LTD buries on page 10. of its Closing Brief the fact that LTD, “could not
guarantee that therewould be no night shift in the future.”
LTD chose a curious time to suspend nighttime operations. LTD suspended nighttime
operations on the eve ofhearing, aware that it had done virtually nothing to provide the Board
with the information concerning noise reduction methods the Board requested in its order of
February
15,
2001. LTD, however, will not commit to ending nighttime operations, instead it
suspended operations while the remedy portion of the hearing is pending, and argued that
because it had suspended operations, the Board should not order it to build a noise wall.
2
Contrary to LTD’s assertion that circumstances have changed, the underlying
circumstances at LTD’s Bannockburn facility have not changed. LTD still has twenty-six
loading docks located on the north end ofits facility only a few hundred feet from the homes of
the Roti, Weber and Rosenstrock families. LTD still has hundreds ofsemi-tractors and semi-
trailers come into its dock area each day. The trailers show up at the LTD facility as early as
5:30 a.m. The trailers are unhitched, hitched to a yard tractor, jockeyed into the docks, dropped,
loaded or unloaded, hitched to a yard tractor, dragged out ofthe docks, dropped, parked in the
dock area or on Lakeside Drive, hitched to long-haul tractors, and hauled away. Airbrakes hiss,
tractor engines groan, and the tractors’ fifth wheels bang while engaging with the semi-trailers
causing noise waves to reverberate throughout the length and height ofthe trailers. During the
busy season ofJuly through December between the years 1996 and 2001, and up through
October 2002, LTD’s dock activities often did not stop until after 2:00 a.m. and the operations of
the independently operated yard tractor continued beyond 2:00 a.m.
Now, LTD asks the Board and the Roti, Weber and Rosenstrock families
-
having made
noise consistently for over six years and having done nothing to reduce noise at its Banriockbum
facility or stop the noise from migrating off-site
-
to trust it, LTD won’t make noise at night; that
is, unless LTD needs to make noise at night. In which case, it will. LTD has demonstrated that
it cannot reduce the migration of noise off-site through only operational changes. The Board
must order LTD to construct a noise wall to substantially reduce the off-site migration of noise.
IV
LTD
has
not made a commitment to ensure “subsequent compliance.”
LTD’s argument that because it didn’t operate a night shift during a six week period in
the Autumn of 2002 it has demonstrated “subsequent compliance” is meaningless without a
3
commitment by LTD to refrain from ever operating a night shift. Suspending the night shift is a
temporary palliative measure; it is not a permanent solution to the noise problem that has plagued
the Roti, Weber and Rosenstrock families for six years.
LTD makes much ofits increased processing capacity in the cities of Aurora and
Naperville. Counsel for LTD implies that LTD opened these facilities in an effort to mitigate the
noise nuisance. But Jack Voit, the only LTD representative to testif~’during the remedy phase,
never suggested that LTD opened the Aurora and Naperville facilities to reduce noise. LTD
opened the Aurora and Naperville facilities to increase its overall capacity to process orders and
build profits.
The record in these proceedings demonstrates that LTD has grown consistently and will
continue to grow. LTD’s growth will require it to soon restart a second shift at Bannockburn.
LTD began in Chicago but outgrew its Chicago facility. LTD acquired the Bannockburn facility
to accommodate its growth and then expanded the size of the Bannockburn facility from 200,000
to almost 400,000 square feet. Initially, LTD operated only a single shift at Bannockburn. LTD
continued to grow, however, and by 1996, began operating a second shift at Bannockburn during
its busy season. At first, LTD’s busy season began in September. Then, LTD’s busy season
began in late August. Then LTD’s busy season began in early August. In 2000, LTD’s busy
season began in July!
LTD’s record of growth supports the conclusion that it is only a matter oftime before
LTD will need to start again the second shift at the Bannockburn facility. Nothing in the record
supports the conclusion that LTD will allow the Bannockburn facility’s twenty-six truck docks
and 400,000 square feet ofprocessing space to remain idle sixteen hours ofthe day. Once LTD
4
begins nighttime operations, it will again create the same conditions that caused such distress to
the Roti, Weber and Rosenstrock families. The only long-term solution is a well-designed, well-
constructed noise wall.
V
Dr. Schomer and Steve Mitchell guaranteed a noise wall would substantially reduce
the off-site migration of noise, eliminating the nuisance.
Dr. Schomer testified that if LTD constructed the noise wall he designed at the location
he specified he could guarantee that the wall would reduce noise as measured at the second story
ofthe Weber residence by 10 dB in the 1000 hertz octave band. Dr. Schomer testified that the
reduction ofnoise in the 1000 hertz octave band as measured at the Roti and Rosenstrock homes
w~ldbe even greater. Steve Mitchell testified that The Huff Company would guarantee that
any noise wall it built would meet or exceed the performance standards for which the wall was
designed.
--
LTD then asked Messrs. Mitchell and Schomer whether they could guarantee that
construction of the noise wall would eliminate all complainants. Dr. Schomer testified that he
could not guarantee that even a well-designed noise wall that substantially reduced the off-site
migration ofnoise would eliminate all complaints. Implicitly, he acknowledged that certain
people
-
though not the Roti, Weber or Rosenstrock families
-
might never be satisfied by LTD’s
efforts to reduce noise. Dr. Schomer did state, however, that in his opinion the Board would no
longer consider the noise that migrated off-site from the LTD dock area a nuisance if LTD
reduced the noise as measured at the second story ofthe Weber residence by 10 dB in the 1000
hertz octave band.
5
The evidence in the record demonstrates beyond any doubt that a well-designed
,
well-
constructed noise wall can reduce substantially the off-site migration ofnoise. There is no
excuse for LTD’s failure to develop a noise wall ofits own design or refusal to build the wall as
designed by Dr. Schomer.
VI
The noise wall designed by Dr. Schomer is technically practicable.
The Complainants have demonstrated that the wall designed by Dr. Schomer is
technically practicable. LTD has failed to demonstrate that the wall designed by Dr. Schomer is
not technically practicable.
A.
LTD can gain approval from Bannockburn to build a twenty-five foot high
noise wall immediately north of the dock area.
LTD argues that the wall is not technically practicable because a twenty-five foot wall is
not currently authorized by the Bannockburn zoning ordinance. LTD states without any citation
to the record that, “while LTD could request Bannockburn to amend some provision ofits
zoning code to approve a 25-foot high wall, such an amendment is unlikely since it would apply
throughout Bannockburn. Bannockbum undoubtedly does not want to set a precedent for 25-foot
high walls throughout the community.” Significantly, LTD concedes that it could request
Bannockburn to amend some provision of its zoning code to approve a 25-foot high wall.
In the past, the Village ofBaimockburn has shown itself willing to allow LTD to do what
is necessary to prosper within its boundaries. Complainants’ Exhibits D and B show the extent to
which the Village will go to accommodate LTD’s growth. Exhibit D is a copy of an “Ordinance
Amending The Zoning Map and Granting A Special Permit and A Height Variation For A
Business Headquarters Planned Development Of 2800 Lakeside Drive.” Exhibit E is a copy of a
6
document entitled, “Amending Zoning Ordinance To Provide For A Business Headquarters
Planned Development As A Special Use For Lots In Excess Of 25 Acres In The “B” Commercial
Park District.” These amendments paved the way for LTD’s 1994 expansion and included
authorization for LTD to build a building to the previously prohibited height ofthirty-six feet.
In addition to the zoning changes approved to aid LTD, the Village approved construction
of an approximately eighteen foot high enclosure surrounding the air-conditioning units for the
Corporate 100 Development adjacent to LTD. See Complainants’ Group Exhibit B. In light of
the Village’s past conduct, there is no reason to think that the Village would deny LTD, a
substantial source oftax revenue to the Village, permission to build a noise wall if the Board
orders LTD to either build a wall or stop operating a second shift.
B.
LTD can build a twenty-five foot high noise wall immediately north of the
dock area.
-
LTD argues that the wall cannot be built where first proposed by Thomas Thunder and
later recommended by Dr. Schomer. This is not true. The wall can be built immediately north of
the dock area. LTD could demolish the existing retaining wall and build the retaining wall and
noise wall as a unified structure. (Edward Anderson, October 16, 2002, p. 26.)
LTD argues, “Based on the safety concern of a wall towering 35 feet above a work area,
Dr. Schomer’s proposed wall is not technically practicable.” LTD’s engineer, Edward Anderson,
did not testiQy that a twenty-five foot noise wall was not technically practicable or unsafe. He
only testified that he had limited experience with noise walls of any dimension. Steve Mitchell,
who builds noise walls for a living, testified that The Huff Company could build a twenty-five
foot high noise wall that could withstand one hundred mile per hour wind loads. Significantly,
7
the wall proposed by Dr. Schomer does not run its entire length on a straight line. Rather, the
wall consists ofsix segments that join at various angles.1 The angles in the wall design have the
effect ofreinforcing the stability ofthe individual wall segments.
C.
LTD can afford a noise wall costing between $1.5 and $3 million dollar noise
wall.
LTD argues that a unified retaining wall and noise wall could be built but it would be too
expensive. LTD concludes, “A wall costing at least $1.5 million is not economically reasonable
under any definition ofthat phrase.” The Complainants have found no precedent in Board
decisions supporting the proposition that a
$1.5
million remedy to reduce noise or any other form
ofpollution is
per se
unreasonable.
The Board might have a basis for making a determination that a noise wall costing $1.5
million was unreasonable if LTD had prpvided information about its gross sales, the salary of its
ChiefExecutive Officer, or the profits realized by its owners. Instead, LTD refused to provide
the Board with this information and offers up the self-serving (and rejected) stipulation that a
$623,350 noise wall would be a “significant expense.” The term “significant expense” is a term
without meaning when the Board is unable to compare it to other expenses incurred and profits
made by LTD.
The information before the Board suggests that a $623,350 noise wall is not a significant
expense for LTD and that even a $3 millionnoise wall would not be a significant expense. LTD
may not be a “cash cow” but it is hardly a pauper. LTD operates an almost 400,000 square foot
The wall would consist ofseven segments if extended to the southeast as suggested by
Dr. Schomer in Figure 3. ofhis Report.
8
facility in Bannockburn, employing over 1,000 people, has recently opened a 400,000 square
foot facility in Naperville, and employs 350 people at this facility, opened a 260,000 square foot
facility in Aurora, and employs 600 people, and is looking to buy or lease an additional facility in
northern Indiana. LTD spends several hundred thousands ofdollars shuttling workers to and
from a nearby parking lot. LTD paid approximately $6.6 million for the Bannockburn facility in
the mid-1980’s and approximately $6 million to expand the Bannockburn facility in 1994. In
light ofthis information, the Board can reasonably conclude that LTD can afford to build even a
$3 million noise wall.
D.
A noise wall in the middle of LTD’s northern parking lot is impracticable.
In a further effort to do nothing, LTD argues that a noise wall built in the center of its
parking lot is not technically practicable. The Complainants agree. A noise wall in the middle of
LTD’s northern parking lot is a bad idea. Dr. Schomer and Thomas Thunder agree: a noise wall
is most effective when located either close to the noise source or noise receiver. A wall in the
middle ofLTD’s north parking lot is neither close to the noise source nor the noise receiver. A
wall in the middle ofLTD’s north parking lot, unless enormously tall, would be of limited value.
E.
LTD failed to build an administrative record in support of a property-line
noise wall.
LTD argues that the Board can only order it to build a noise wall on the property line
because the noise it generates is not a nuisance until it travels off-site. The Complainants agree
that the noise is not a nuisance until it travels off-site. It does not follow, however, that Board
can only order LTD to build a noise wall at the property line.
9
IfLTD wanted to argue that a property-line noise wall was a technically practicable
remedy, then LTD had the burden ofbuilding a record to support that remedy. In its order of
February 15, 2001, the Board invited the parties to “further address appropriate remedies.”
(Decision at page 33). The Roti, Weber and Rosenstrock families took that charge seriously and
retained the internationally respected professor from the University of Illinois, Dr. Paul Schomer.
Dr. Schomer developed a three dimensional model of the LTD dock area and surrounding
property, analyzed the sources ofthe noise, and designed a noise wall to substantially reduce off-
site migration of noise.
-
In contrast, LTD has yet to propose a detailed noise wall design. LTD failed to (1)
submit into evidence a sketch ofthe property-line noise wall; (2) tell the Board the height ofthe
property-line noise wall; (3) tell the Board what material it would use to build the property-line
noise wall; (4) tell the Board how much the property-line noise wall would cost;
(5)
tell the
Board where it would build a property-line noise wall to protect the Weber family that doesn’t
share a common property line with LTD; or (6) tell the Board how effective the property-line
noise wall would be in reducing noise to the Rosenstrock home which Dr. Schomer described as
being set back a moderate distance from the property line. LTD failed to build a record in
support ofa Board order requiring construction of a property-line, noise wall.
Having provided only the most vague description ofthe eleventh hour remedy, a
property-line, noise wall, LTD then suggests that if the Roti, Weber and Rosenstrock families do
not rush to embrace the idea ofa property-line noise wall then, “They’re in this administrative
hearing just to try to hurt LTD.” (December 9, 2002, p. 160). This statement is offensive to the
Complainants.
10
It is offensive for LTD
-
the generator of noise for over six years that was so loud it shook
lighting fixtures in Paul Rosenstrock’s home, the generator ofnoise so unsettling that it kept the
Roti children from studying or falling asleep, the generator ofnoise so persistent that Leslie
Weber came to dread Sunday nights because it meant the weekly assault ofdock noise was about
to begin again
-
to now argue to the Board that it is the victim in these proceedings and that the
Roti, Weber and Rosenstrock families are now spending their time and hard earned dollars not to
find a way to reduce their own very real suffering but simply to hurt LTD.
F.
Dr. Schomer considered in his noise wall design the distance ofthe Weber
home from LTD’s dock area.
LTD tries to justify its inaction by arguing that Dr. Schomer “did not consider that the
Weber home is significantly farther away from LTD than the Roti and Rosenstrock homes
(Closing Brief, page 9.).
Dr. Schomer did consider the distance between the Weber home and LTD’s dock area.
Annex A ofDr. Schomer’s April 26, 2002, Report contains Sample Calculation Outputs. Page
12. of Dr. Schomer’s report contains a small portion ofthe “output” spreadsheet for one
calculation for the Rosenstrock residence. In the middle ofthe page, Dr. Schomer defines “ds”
as closest source distance to barrier along ground and “dr” as closest receiver distance to barrier
along ground. Dr. Schomer estimated that the closest source distance to the barrier along the
ground was 87 feet and that the closest receiver distance was 254 feet. That is to say, on average
the sources ofdock noise are 87 feet from the south face of the noise wall and Paul
Rosenstrock’s home is 254 feet from the north face ofthe noise wall.
11
Dr. Schomer testified that he used the method outlined in the internationally accepted
ISO 9613-2-1996 standard to calculate the attenuation of sound for the Roti, Weber and
Rosenstrock homes. Tom Thunder agreed that the ISO standard was an appropriate standard. As
set forth above, the ISO standard requires that values be assigned for the distance between the
source and the barrier, and between the barrier and the receiver. Dr. Schomer assigned values for
“ds” and “dr” for the Roti, Weber and Rosenstrock homes. LTD is either trying to mislead the
Board or didn’t understand Dr. Schomer’s testimony when it suggests that Dr. Schomer failed to
consider in his noise wall design the fact that the Weber home is significantly farther away from
LTD than the Roti and Rosenstrock homes.
G.
Dr. Schomer designed the noise wall to reduce the migration ofnoise that
creates the nuisance.
Again, LTD is either trying to mislead the Board or didn’t understand Dr. Schomer’s
testimony when it suggests that Dr. Schomer’s wall was not designed to mitigate the noise at
issue in this case. It is true that (1) certain noise
-
like the exhaust from the trucks
-
originates at
the 12-foot height; (2) that noise from the air brakes and fifth wheels originate at a four-foot
height; and, (3) that Dr. Schomer testified that “a 25-foot high wall was needed because the
“critical path is sound from the 12-ft high source that reflects offthe hard LTD wall, over the
noise barrier, to the second floor ofthe indicated Weber residence.” (Complainants’ Ex. A,
p.4.)
LTD’s $300.00 per hour hired gun, Tom Thunder, apparently wasn’t able to explain to
counsel for LTD how noise originating at a four-foot height becomes a noise source at 12-feet
above grade. This may not be surprising because Mr. Thunder testified that he had spent less
12
than an hour observing dock operations at LTD. This is the same Mr. Thunder who admitted that
the noise wall he originally designed would not have reduced in the least noise traveling to the
second story ofthe Roti, Weber and Rosenstrock homes.
Dr. Schomer testified that sound is energy that radiates from its source in the pattern ofa
wave. He explained that the energy generated when the fifth wheel engages with the pin on the
trailer is transmitted mechanically from the point of impact downward along the base ofthe
trailer and upward along the walls and roofofthe trailer. Dr. Schomer likened the semi-trailer to
the body of a violin and explained how the connection between the fifth wheel and pin was akin
to the connection between the bridge of a violin and the body ofthe violin. While a violin’s
bridge transmits the vibration from the strings into the body of the violin where it resonants
producing the musical tone, the pin and the fifth wheel transmit the vibration from the impact
into the body ofthe semi-trailer where it resonants producing noise.
Ifthe noise from the fifth wheel stayed at the four-foot level, then the ten foot high
retaining wall might be an adequate noise wall. Instead, the noise from the fifth wheel travel up
through the body and sound energy is released at a height of 12-feet above grade. This sound
energy (in the form ofwaves) then moves outward and is reflected by the hard surface on the
north side ofLTD’s facility back towards the Roti, Weber and Rosenstrock homes.
Dr. Schomer emphasized that the manner in which noise is generated within the LTD
dock area and moves upward and out ofthe LTD dock area is highly complex. He sought
through intensive computer modeling to understand this phenomenon and design a method for
reducing the migration ofnoise. Perhaps if LTD acknowledged the complexity ofthe problem it
has created it might be more willing to spend the resources necessary to develop a solution.
13
Instead, it seeks to mislead the Board by suggesting that noise that originates at the four-foot
level never rises above the four-foot level and Dr. Schomer grosslymiscalculated the necessary
height ofa noise wall. The Complainants are grateful that he Board sent its technical
representative to the remedy phase ofthe hearing and are confident that the Board will not be
mislead by LTD’s sophistry.
H.
The noise wall must provide protection for noise generated on Lakeside
Drive.
LTD argues that the 150-foot extension ofthe wall (or relocating LTD’s exit ramp)
because ofnoise problems on Lakeside Drive is not necessary. The record shows that LTD is
wro~ng.
Leslie Weber complained about the noise from the accelerating and idling ofdiesel
engines, including the yard tractor. She.~laimedthat these noise come from the staging area and
Lakeside Drive. Tr. at 450, 473, 493, 513. February 15, 2001, Order, page 6. Dr. Schomer
testified that he observed semi-trailers parked on the ramp and on Lakeside Drive. Tr. 10/15/02
at page 61-66.
Dr. Schomer calculated the impact of noise from LTD dock activities on the ramp and
Lakeside Drive. He compared the effectiveness ofa 25-foot high noise wall with and without the
150-foot extension. The results ofhis analysis are set forth in Table 3. ofhis April 26, 2002,
Report. Complainants’ Exhibit A. Dr. Schomer concluded that if LTD continues to stage semi-
trailers on the ramp and Lakeside drive and builds a noise wall without the 150-foot extension,
noise as measured in the 1000 kHz octave band at the second story of the Weber home will only
be reduced by 7.3 dB. IfLTD built the wall and included the 150-foot extension, the noise at the
14
Weber home in the 1000 kHz octave band would be reduced by 11.5 dB.
Section 901.107(f) exempts noise from trucks as they enteror leave Lakeside Drive. This
Section, however, does not exempt noise generated when LTD stages semi-trailers on the ramp
and Lakeside Drive.
It is critical that LTD either refrain from staging semi-trailers on the ramp and Lakeside
Drive, or build the 150-foot extension. The Village ofBannockburn already prohibits LTD from
parking semi-trailers on Lakeside Drive. The record demonstrates that this prohibition has not
deterred LTD from staging semi-tractors on Lakeside Drive. Again, LTD cannot solve the noise
problem solely through operational changes. The Board must order LTD to build a noise wall.
I.
LTD lost the benefit ofpriority of location when it expanded operations in
1996.
LTD points out that the Board stated in its February
15,
2001, decision at page 27. that,
“LTD clearly has the priority oflocation.” LTD fails to note, however, that the Board has
already found as follows,
“LTD substantially increased its activities after complainants had moved into their
nearby homes. LTD cannot rely on priority oflocation as a mitigating factor. The Board
finds that
‘s facility, as it is currently operated, is unsuitable to the area involved and
weighs this factor against LTD.” (Order ofthe Board, February 15, 2001.)
LTD now argues that, “it should not be punished for decisions beyond its control.” The
decisions to which it refers are the decisions ofthe Roti, Weber and Rosenstrock families to
build two-story homes! This argument borders on the ridiculous.
First, the Board has already found that noise from LTD’s dock area disrupted the Webers
when they were in their first floor living room playing games and doing other quiet activities
around the house. Tr. at 534, 888, 894, 989. In the late summer and early fall, the noise made it
15
difficult for the Webers to enjoy the use of their outdoor decks. Tr. at 457-58, 533, 891, 898
(Webers). The noise from LTD made the Rotis’ youngest daughter afraid to go outside, and it
also startled her inside the residence. Tr. 696.
The nuisance is not limited to the second floors ofthe Roti, Weber and Rosenstrock
residences. The nuisance also extends to the first floors ofthe Complainants’ homes. The Board
must order LTD to implement a solution that eliminates the nuisance in the Complainants’ back
yards, first floors, and second floors.
Furthermore, the Board will not be punishing LTD for decisions beyond its control if it
orders LTD to build a noise wall. LTD decided to operate a second shift at Bannockbum without
giving any consideration to its impact on LTD’s neighbors. The Board will not be punishing
LTD, it will merely be holding LTD accountable for the consequences ofits own decisions.
VIII The Board should punish LTD for its decision to forego proposing a meaningful
remedy.
LTD argues that the Board should not impose a civil penalty because there has been no
alleged nuisance since October 18, 2002. First, the Board continued this matter for hearing
concerning an appropriate remedy. The Complainants did not put on testimony concerning the
on-going nature of the nuisance because it was beyond the announced scope ofthe hearing
Second, implicit in LTD’s statement that there has been no alleged nuisance since October 18,
2002, is the fact that betweenthe issuance ofthe Board’s order on February 15, 2001, declaring
LTD’s dock operations to be a nuisance, and October 18, 2002, LTD continued to be a nuisance.
LTD’s dock operations were a nuisance throughout the Summer, Fall and early Winter of2001,
and throughout the late Summer and early Fall of 2002.
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More significantly, LTD did virtually nothing to provide the Board and the Roti, Weber
and Rosenstrock families with information about an appropriate remedy. Between February 15,
2001, and the hearing in October 2002, Jack Voit asked for, received, and reviewed one bid from
The Huff Company. LTD’s so-called noise expert, Tom Thunder, did nothing other than critic
(unsuccessfully) Dr. Schomer’s report. LTD’s engineer, Ted Anderson, said a wall couldn’t be
built immediately above the existing retaining wall. He didn’t provide the Board with any
drawings or written cost estimates for building a unified retaining wall and noise wall where
proposed by Thunder and Dr. Schomer.
In light ofthe fact that the Board had found LTD in violation ofthe nuisance noise
prohibitions, it is shocking that LTD did so little to fashion a remedy to eliminate the nuisance.
The Board should impose a substantial civil penalty.
IX
Conclusion.
Leslie Weber, Paul Rosenstrock, Tony Roti and Karen Roti have demonstrated that the
noise from LTD ‘s dock operations frequently and substantially interferes with their use and
enjoyment of their homes. They have also demonstrated that construction ofa 520 foot noise
barrier wall with an average height of 25 feet above grade located immediately to the north of
LTD’s dock area will cut in one-halfthe noise as measured at the second story ofthe Weber
residence and by more than one-halfas measured at the second story ofthe Roti and Rosenstrock
homes.
LTD has shown that the existing retaining area at the north end ofLTD’s dock area
would have to be removed and rebuilt in order to support a noise wall in the area immediately
north ofLTD’ s dock area. LTD has not demonstrated, however, that construction ofa wall
-
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even a wall costing between
$1.5
-
$3 million
-
is economically unreasonable in light ofthe value
of the LTD property and revenues generated by LTD’s operations.
Ms. Weber, Ms. Roti, Mr. Roti and Mr. Rosenstrock respectfully request the Board to
order LTD to (1) turn offthe backup waming beeper on the yard tractors during both day time
and night time operations; (2) employ a guard to ensure that tractors and trailers do not stop,
stand or park on the ramp connecting the dock area with Lakeside Drive or on Lakeside Drive;
(3) construct the noise wall ofthe height and length recommended by Dr. Schomer and in the
location first proposed by LTD and now recommendedRespectfullyby Dr. Schomer.submitted,2
KAREN ROTI, PAUL
WEBER
The Law Office ofSteven P. Kaiser
35 East Wacker Drive, Suite 1750
Chicago, Illinois 60601
312.372.4779
Dated: May 23, 2003
Submitted on Recycled Paper
2 See Figure 3. Schomer Report, April 26, 2002.
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