MICHAEL A . PETROSIUS and DARLA G
.
PETROSIUS,
Complainants,
V .
THE ILLINOIS STATE TOLL HIGHWAY
AUTHROITY,
Respondent .
ILLINOIS POLLUTION CONTROL BOARD
RECEIVED
CLERK'S
OFFICE
NOTICE OF FILING
To :
Carol Webb
Scott Dworschak
Hearing Officer
Attorney for Complainants
1021 N. Grand Ave.
1343 North Wells
Springfield, Illinois 62794
Chicago, Illinois 60610
PLEASE TAKE NOTICE that today I filed with the Office of the Clerk of the Pollution
Control Board the original and nine (9) duplicates of the Post-Hearing Brief of the Respondent
Illinois State Toll Highway Authority, a copy of which is hereby served upon you .
Illinois State Toll Highway Authority
By: Lisa
Madigan,
A/4~
Illi ois'Attorney
>,, AptG
General
June 30, 2006
I, the undersigned, certify that I have served the attached Post-Hearing Brief, by messenger and
first class mail, upon the following persons : Scott Dworschak (messenger) and Carol Webb
(First Class Mail) .
Lisa Madigan, Attorney General
By: Victor F. Azar
The Illinois State Toll Highway Authority
2700 Ogden Avenue
Downers Grove, Illinois 60515
(630) 241-6800 ext. 1540
Attorney No . : 6203693
iUNN 3 L'
2006
Pollution
STATE OF
Control
ILLINOISBoard
PCB 04-36
(Citizens' Enforcement-
)
Noise)
BEFORE THE ILLINOIS POLLUTION CONTROL BOAWRK'S
RECEIVE®OFFICE
JUN
3 0 2006
MICHAEL A . PETROSIUS AND DARLA G . PETROSIUS,
Pollution
STATE OFControl
ILLINOIS
Boara
Complainants,
V.
PCB 04-036
(Citizen's Enforcement
- Noise)
THE ILLINOIS STATE TOLL HIGHWAY AUTHORITY,
Respondent.
RESPONDENT POST HEARING BRIEF
NOW COMES the Illinois State Toll Highway • Authority ("Tollway") by its attorney,
LISA MADIGAN, Attorney General for the State of Illinois, and moves The Illinois Pollution
Control Board ("Board") to dismiss the Complainants' Complaint based upon the evidence
presented at the hearing held on December 5 and 6, 2005 .
The uncontested evidence showed that the Tollway followed its noise policy, based upon
FHWA's noise guidelines, when it designed and constructed the sound walls on 1-294 . It was
undisputed that the wall was designed for the Tollway by a licensed professional design
engineering firm, constructed by the Tollway and met the recommendations of the traffic noise
study
. Nor was there any evidence to suggest that the design was defective or that it the wall was
improperly constructed . Furthermore, there was no evidence presented that contradicted the
testimony of the Tollway's employees and an independent expert that the noise wall near the
Complainants' home effectively mitigates the traffic noise in accordance with the Tollway's
noise policy.
I. STATEMENT OF FACTS
The Tollway is "an instrumentality and administrative agency of the State of Illinois"
vested with "all powers necessary or appropriate to enable" the Tollway to carry out its
1
legislative purpose, which is to "construct, operate and maintain a safe, modem and limited
access highway designed for the accommodation and the needs of the traveling public within the
State.".' The Tollway began operation in the late 1950's with a system of toll highways
including the "Tri-State," which goes from near the Wisconsin boarder to the north (1-94)
bypassing the City of Chicago to the west (1-294) and ends near the Indiana boarder to the south
(1-80/1-94) . The Complainants' home, located at 7337 Maridon Road, LaGrange, Illinois is
located adjacent to 1-294 and the 75`h Street Interchange (also known as Plaza 34) near Milepost
22 .1
. ((Transcript Volume I, pages 17-21
("Tr. I at " or Tr. II at _"); see also Joint Exhibits
1, 2 and 3 ("Jut . Ex. #"))
Currently there are more than 1 .4 million vehicles that use the Tollway daily
. (Tr. I at
191) The average of daily traffic count in 2003 on 1-294 by Milepost 22 .1 is 77,010 Southbound
and 71,650 Northbound making a total of 148,550 vehicles per day
. The 75`h Street interchange
(Plaza 34) has an average traffic count of 3750 entering and 3550 exiting the Southbound 1-294
.
(Complainants' Exhibit 11 ("Comp . Ex.
#")) The 75`h Street interchange was constructed at the
same time as 1-294 was widened in 1995 pursuant to an Intergovernmental Agreement between
the Tollway, the Illinois Department of Transportation ("IDOT") and the Village of Hodgkins
.
(Comp. Ex . 15) Not only did the widening of 1-294 and the 75
`h
Street interchange facilitate
public travel, but the interchange enhanced job growth and commercial development in the area
by increasing the shipment of freight by UPS and the Burlington Northern railroad
. (Tr. I, at197-
198) the area around the 75` h
Street interchange was described as being "much more industrial
here than residential" (Tr . I at 198) and the area, based upon historical and current use, makes the
placing of the 75" Street interchange suitable to its environment . (Tr
. I at 233) The
Complainants conceded that the area is historically an "industrial-commercial area."
(Tr. I at 61)
Toll Highway Act, 605 ILCS 10/ 1 .
2
The economic value to the communities of the Tri-State is in the billions of dollars and provides
a good number of jobs. (Tr . I at 191) The 75
th
Street Interchange, which is adjacent to the
Complainants' home, has a substantial impact on the State's economy (Tr
. I at 193) with billions
of dollars worth of merchandise coming from the facilities serviced by 75`h
Street . (Tr . I at 195)
The Complainants' residence was built in 1964 (Respondent's Exhibit 2 and 3, ("Resp
.
Ex . #")).
The house was built after the Tollway was constructed and in operation
. Later, the
Tollway spent $500 million widening the central portion of 1-294, which included the 75`
h
Street
interchange . (Tr. II at 7-8) This also included $11 million for construction of noise walls
. (Tr.
Vol
. II at 19) This project, widening the road and building the 75` h Street interchange and the
noise walls, was completed around November 15, 1993
. (See Resp. Ex. 14)
The
Complainants' purchased the house on May 3, 1995 which was over a year after the 1-294 was
widened and the 75
th
Street interchange was constructed . (Resp. Ex
. 1) There is no evidence
that there were any changes to the dimensions of the roadway, interchange or the wall since the
construction was completed
. Even the Complainants conceded that when they purchased the
house it was on the edge of a residential area adjacent to the Tollway and that the Tollway,
including the 75` h Street interchange and the noise walls, were there before they bought the
house. (Tr. I at 71)
The Complainants purchased their house in 1995 for $145,000 . (Tr. I at 71-72) They
bought it in one day, because "the houses in the area were going for over $200,000" and they felt
that at $145,000 "we were getting a deal
." (Tr. I at 72) Eight (8) years later the appraised value
of the house nearly doubled to $260,000 in 2003. (Tr . I at 72 ; Resp . Ex . 1, 2 and 3 .) The
Complainants were aware that the home's proximity to the Tollway would effect the value of the
house . (Tr. I, at 48) When they inspected the house they became aware of the Tollway, (Tr . I at
49) and Ms
. Petrosius admitted that during their inspection she looked out the windows and saw
3
pavement on the road and the trucks using the Tollway
. (Tr. I at 90) Furthermore, they heard
the traffic noise during their inspection of the house
. (Tr. I at 49) However, they purchased the
house because they liked the area and the access to transportation and the Complainants uses the
road regularly. (Tr. I at 47) They did not find any problems when they inspected the house
. (Tr.
I at 50) However, they claim that they noticed the noise "immediately" upon moving in . (Tr
. I
at 28)
After moving in, the Complainants began to notice the revving of trucks, jake-braking,
bouncing of trailers and the noise from tires of the traffic . (Tr. I at 29) It was when they tried to
sleep that they found that the noise from the Tollway bothered them
. (Tr. I at 50) The sounds
that affected their sleep the most was the banging of the trucks and the jake-braking
. (Tr . I at 32)
These unusual noises disturbed their sleep and woke them up . (Tr. I at 53)
After purchasing the house they did not like using their yard because of the noise
. (Tr. I
at 31-32) The Complainants testified that the noise limited their use, as well as their children's
use of the yard and they could not entertain people outside . (Tr
. I at 43) They then approached
the Tollway because of the noise from the Tollway (Tr . I at 39)
When the Complainants met with Tollway representatives, they asked that the wall be
heightened and extended . (Tr
. I at 130) The Tollway representatives told them that the Tollway
must follow its Sound Policy and it was "explained to him the criteria of the noise policy
. We
adhere to that quite faithfully ." (Tr
. I at 131) Since the Tollway takes "any complaint
seriously," the Tollway tries to identify the problem and fix it "usually with in 24 to 48 hours
. If
it's not the pavement, then we tend to look and see what other sources of noise could be the
cause ." (Tr
. I at 139-140) At the meeting with the representatives, the Complainants were shown
the plans of the road, the noise study and the lay of the land
. (Tr. I at 172) they were showed
4
from the plans for the wall how the wall had been built to the design specifications. (Tr . I at 145-
146).
As a follow up, Rocco Zucchero and Ms . Anderson went to the house to determine if the
walls were truly effective, and based upon his test, the "results were - basically showed that the
walls did reduce the noise from Interstate 294 ." (Tr. I at 173) Mr . Zucchero documented his
findings in his "Draft Summary" in
which he noted that the wall was designed to meet the
specifications of the Noise Analysis Report and factored in that the wall was coming to its
terminus
. Thus the wall needs to "step down at 4' increments" and the wall's location and height
were "adjusted to accommodate the undulating terrain and the roadway drainage system
."
His field-test of the sound levels confirmed that the wall was effective in reducing traffic
noise
. The walls reduced the noise from the vehicles using the Tollway from a range of 78 dBA
to 81 dBA without the wall to a range of 63 dBA to 68 dBA with the wall, a significant
reduction
. Based upon his findings he concluded that the noise barriers were designed in
accordance with both the Federal Highway Administration's regulations 2 ("FHWA") and the
Tollway's noise policies which were utilized in the Versar study
. (Resp. Ex. 15)
The Tollway utilized FWHA's sound wall criteria found in 23 CFR 772 in developing its
sound policy. (Comp. Ex
. 8) The Tollway voluntarily adopted these guidelines, which it is not
required to follow, at a substantial cost to the Tollway to benefit those residents along the
Tollway. (Tr. I at 246) There are three stages to road building
: planning, design and
construction . (Tr. II at 7)
As a part of the planning stage, the Tollway employs a noise
consultant to conduct a noise study to ascertain the existing noise level and then extrapolates
future noise levels based upon projected traffic volumes and then recommends wall locations
.
(Tr. I at 201) The noise study utilizes field studies and computer modeling
. (Tr
. I at 203) The
2
23 CFR 772.
5
traffic model was created by FHWA which requires its use . (Tr
. II at 190-191) After a noise
study is completed it is turned over to the designer along with other data to design a noise wall .
Mr. Wagner testified that during the planning stage for the project widening the central
part of 1-294, the Tollway's noise study was conducted by Versar
. Versar put out receptors and
identified the noise levels from the field and then put that data into the computer model to project
and identify areas needing noise abatement . (Tr. II at 30) Versar made a model and formulated
recommendations that were given "to the designers who had to actually physically create the
plans."
(Tr
. II at 33) Versar recorded the field data showing that on June 6, 1989 the receptors
by Maridon by the Tollway registered readings of 70 .4 leq. dB(A) and 70 .2 leq. dB(A) as well as
the number of cars and trucks and their speed
. (Resp. Ex . 8 and 10) The computer model
predicted 66 .1 Lcq
. dB(A). (Resp. Ex
. 9) With these numbers, a determination was made that a
noise wall may be appropriate . (Tr. II at 31) Based upon the number derived, Versar generated
a recommendation for the height of the sound walls . (Comp . Ex. 17)
Mr. Wagner identified the location of the sound wall along 1-294 that was adjacent to the
Complainants' home. He identified on the plan the location to be about Station 1347
. According
to the plan drawings, the wall heights by the house about 13 feet and begin to step down
. The
roadway profile or pavement elevation undulates with the terrain thereby varying the difference
in height between the pavement and the wall
. The differences range from the wall being
significantly higher to being one (1) foot below the pavement height depending upon the
pavement elevation . (Tr
. II at 40-42) Mr . Wagner noted that the wall heights were different
than what was proposed in the Versar recommendations (Tr
. II at 50) because the designer
considers the topology, hydrology, and drainage along the road . (Tr. II at 69) As stated by John
Wagner the "designer's responsibility to incorporate all aspects of design, not just the wall, but
drainage and the roadway and everything else that needs to be coordinated ." (Tr. II at 70) The
6
Versar study was supplied to the designer to assist in the design and not as specifications . (Tr . II
at 51-52) Mr
. Wagner testified that in his opinion the "designer did meet" the "recommendations
that were provided by Versar ." (Tr. II at 52-53) Mr
. Zucchero observed that the noise wall was
designed and constructed in compliance with the FHWA rules as adopted by the Tollway
.
(Resp. Ex. 15)
The sound wall design engineers are pre-qualified with the State to practice design
engineering (Tr
. II at 65) and are licensed professional engineers in the State of Illinois . The
designers are approved to do business with IDOT, the Tollway and other state agencies . (Tr. II
at 66) The actual wall design takes into consideration not only the traffic noise as described in
the Versar report but also the detailed topography of the site, with its hydrology and drainage
issues. (Tr . II at 68-69) Mr
. Wagner noted that the maximum wall height used by the Tollway is
25 feet but "we recommend not really going much more than 20 feet" because of feasibility
issues including cost and maintenance . (Tr . II at 71)
The Tollway does not build noise walls that are not feasible when the "abatement
measures would pose a threat to safety, hinder maintenance or create operational problem to
drain the environment, obstruct drainage or alter watershed boundaries ." (Resp . Ex. 8 and Tr. I at
208-09) The average height of a Tollway noise wall is 12 to 16 feet . (Tr . I at 213) The Tollway
limits wall heights to a "20 feet, maybe 22 feet" because of structural stability and wind load ."
(Tr. I at 210) Walls that are above 20 feet create "cost-effectiveness issues and also gets into
structural issues ." (Tr. at 213)
Mr. Zak testified that the Complainants' home is located in a nice residential area but is
very noisy because of the proximity to the Tollway . (Tr. II at 90) He observed that 85-90% of
the noise impact was from truck tires, truck engines, jake-braking, and trucks banging and
clanging. (Tr. II at 96) Despite the amount of truck traffic he opined that the ambient noise or
7
background noise, which he derived from the regulatory table, fell within Category 3, Moderate
residential area . (Tr . II at 127)
He testified that he followed the applicable Board regulations when conducting his noise
study and that in his opinion the Tollway is classified as Commercial or "C" noise generator
based upon the pending adoption of the LBCS (35 IAC 901 .101) . (Tr. II at 141) He did concede
that all times before and including the time the Complaint was filed 1-294 would have been
classified as "U" or Unclassified . (Tr
. II at 140) He further conceded that the numerical
guidelines set forth by FHWA are inconsistent with his application of the Board's noise limits .
(Tr. II at 146) Nonetheless, he opined that based upon his understanding that the Board would
adopt the LBCS classifications ; the Tollway was in violation of the numerical standards for Class
C to Class A properties .3 (Tr. II at 143) He formed that opinion despite the fact that the rules
did not become effective until March 10, 2006, which was more than four months after he
testified on December 6, 2005
. (See R03-9 at Ill
. Reg
. 5533)
Mr. Zak opined that based upon the sound measurement in his report the sound levels
exceed the 901 .102(a) limits as well as exceeded the ambient sound levels he derived from the
table (Comp . Ex. 18, p
. 7), because "we assumed that at the time we did our survey that the new
rules to be applicable." (Tr. II at 139) However, Mr
. Zak conceded that if the regulations
indicated that the Tollway was Unclassified, "there's no restrictions as far as numerical is
concerned, but there would still be nuisance" and he further conceded that "when this thing was
built and the complaint filed, was unrestricted/[unclassified], there is no numerical violation,
correct?" by responding that was "correct ." (Tr
. II at 240-241) Although later conceding that
he did not know if toll roads are exempt from the nuisance regulations (Tr
. II at 170), Mr . Zak
3
The Complainant failed to disclose this part of Mr
. Zak's report found on pages 1 and 2 and
the Hearing Officer refused to admit those pages into evidence
. jr, 11 at 173)
8
opined that the sound levels coming from the Tollway would be a nuisance based upon the sound
levels and problems complained of by the Complainants . (Tr . II at 106)
Mr. Zak, the Complainant's expert, recommended a wall a quarter-mile long and 18 feet
high or higher in order to break the line of sight of the vehicles . (Tr. II at 113 ; see also Comp .
Ex. 18, p. 8) However, Mr . Zak observed that "even putting in an 18-foot wall, the area is still
going to exceed the Board's sound limits ." (Tr . II at 126) However the recommended height
would not be tall enough to block the line of sight which he claimed to be essential, because the
wall had to be at least 13 feet above the pavement to block the highest exhaust stacks commonly
used on semi-tractors, (Comp . Ex . 18, p, 8) and the wall needs to be several feet higher than
necessary to break the line of sight to gain a bit of additional noise reduction . (Tr
. II at 125)
The Tollway's expert, William Barbel, testified that he conducted a noise study in
conformity with the FHWA traffic noise study guidelines which were adopted by the Tollway
.
(Tr
. II at 180) The guidelines are mandatory for new or significant road building projects . 23
CFR 772. The guidelines are meant to consider impact from traffic noise approaching 67 dBA
:
what the impact is and what is needed to abate it if feasible . (Tr. II at 182) The criterion
establishes impact on residences as the noise level approaches 67 dBA
. (Tr. II at 182) Mr.
Barbel testified that the "feasibility" of abatement merely responds to can the noise be abated
and what is the minimum elevation for the wall. (Tr. II at 185) However, he noted that design
feasibility is not considered because the factors a designer would evaluate, such as soil, soil
strength, drainage and wall materials are not considered in the planning stage
. (Tr. II at 186)
Mr
. Barbel testified that he went to the Complainants' home and conducted his noise
study to determine if the wall was effective . (Tr
. II at 189) He ran two receptors simultaneously,
one at the wall to detect the unabated noise and one at various locations on the Complainants'
property. (Tr. II at 198-199 ; see also Resp . Ex
. 17) Taking the numbers derived from his field
9
test, Mr
. Barbel ran the data through the FHWA computer simulation . (Tr. II at 201) He
testified that based upon his study the wall effectively reduced the noise levels between one (1)
and eleven (11) dBA depending upon the location of the receptor . (Resp. Ex. 18, p . 7) Mr.
Barbel testified that he took his test during peak traffic hours when the noise levels should be the
highest. (Tr
. II at 195) He noted that there are all eight (8) lanes that equally contribute to the
noise. (Tr . II at 197) Mr . Barbel testified without contradiction that the lower frequency, which
were the ones the Complainants complained of, such as the jake-braking and exhaust pulsations,
need a higher wall to be attenuated . (Tr . II at . 205)
Mr. Barbel opined that based upon his sound study, to effectively attenuate the noise
complained of would require a wall 20 to 30 feet above pavement grade . He noted that based
upon the topography of the site (with the side of the road significantly lower than the pavement)
the wall would have to be up to 45 feet tall . (Tr. II at 206) He testified that an 18 foot wall
would allow an evident amount of noise to come over the wall . (Tr. II at 208) He concluded that
the proposed 18 foot wall would not be feasible based upon the cost alone : it would cost about
$1
.3 million to construct the wall he described and $800,000 for the proposed 18 foot wall . (Tr.
II at 207) However, that amount far exceeds the economic feasibility threshold established by
both the Tollway4 and IDOT, which has a $24,000 per resident threshold
. (Tr. II at 207)
Mr. Barbel testified that the Tollway's sound wall complied with the Federal regulations
.
(Tr. II at 246)
He noted that the 67 dBA threshold was developed by the FHWA as a
compromise between FHWA, the US EPA and various state Departments of Transportations to
eliminate subjective standards and establish a uniform policy nationwide . (Tr. II at 213) He
testified that he does not believe that the Board's noise regulations, which are inconsistent with
the FHWA's regulations, are applicable to roads and thus not applicable to the Tollway . (Tr
. II
4 Mr
. Zucchero testified that the Tollway spends about $30,000 per abutting residence . (Tr . I at 210)
10
at 247) He noted that the Tollway's Board voluntarily adopted the FHWA's noise guidelines
and implemented them at a substantial cost to the agency. (Tr. II at 246)
The Tollway has limited funds to cover extra costs or unplanned expenditures . Mr.
Zucchero testified that Tollway does not make a profit . (Tr
. I at 182) The Tollway establishes a
budget and for every dollar raised in tolls or bonds, there is a commensurate expenditure . If
there is an increase in a budgetary expenditure, the Tollway has "to decide what gets cut, be it
project, staff or otherwise ." (Tr
. I at 183) The Tollway's Board has the statutory responsibility
to make policy and expend the funds
. The General Assembly granted the Tollway the exclusive
authority make final and conclusive determination of plans and specifications of roads it builds
and such approvals are not subject to review by any other administrative agency
. 605 ILCS
10/32 .
II. DISCUSSION
The evidence and the applicable law clearly established that the Tollway did not violate
the Board's numerical noise limits
. Nor does the noise generated by vehicles on the Tollway
constitute a nuisance pursuant to the criteria set forth by the Environmental Protection Act .
A.
The Tollway did not violate the numerical noise standards
The Complainants first argue that the Tollway violated the numerical standards set forth
in 35 IAC 900.102.
Before proceeding to analyze the numerical standards cited by the
Complainants, it is necessary to analyze the Complainants' failure to address the issue of
ambient sound . The Complainants mistakenly try to separate the ambient noise from the traffic
on the Tollway which is in fact the cause of the ambient noise
.
1 . Ambient Noise Levels
Mr. Zak testified that ambient/background noise is "normally the sound that creates a
background for the area where a measurement is being taken . In your typical noise survey you
11
measure the noise source of interest, in this case the Tollway
. . .. In this situation here the ambient
is such that we really can't measure any ambient because the Tollway is so predominant as far as
the noise source." (Tr. II at 119) Mr . Zak conceded the Tollway noise would be the background
noise under different circumstances. (Tr. II at 128) However, it is illogical to argue that the
ambient noise is not the background if you are complaining about the cause of background noise .
Therefore, the Board should consider the Tollway as the background or ambient noise and not
subject to numeric standards because background noise which is the Tollway overwhelms most
other noises . (See Tr. II at 119-120 and Roti v . LTD Commodities (February 15, 2001), PCB 99-
19 slip op. at 19 and Roti v. LTD Commodities, 355 Ill. App.3d 1039. (Ill. App
. 2"d Dist. Feb 09,
2005))
Furthermore, the Board should disregard the Complainants' numeric violation numbers
because they failed to properly correct the value of the property-line-noise-source emissions by
properly determining the long-term background ambient noise . 35 IAC 910.106(b)
. Based upon
the rules, if any of the direct measurement techniques described would have been utilized, they
would have shown that the background noises generated by the vehicles driving on the Tollway
are the ambient noise
. However, Mr. Zak chose land category tables because they were the best
method for determining the ambient noise levels
. ((Comp. Ex . 18)
(See 35 IAC
910.106(b)(6)(E)) .
Although he testified that he thought the Complainants' home was in a Category 3,
"Quiet Commercial and Industrial Areas, and
Moderate Residential Areas," the
910.106(b)(6)(E)
definitions clearly defy his assertion
. The Board's Tables of Long-Term
Background Ambient Noise defines each Category as follows
:
Category 1 : Noisy Commercial and Industrial Areas
. Very heavy traffic
conditions, such as in busy downtown commercial areas, at intersections of
mass transportation and other vehicles, including the Chicago Transit
12
Authority trains, heavy motor trucks and other heavy traffic, and street
corners where motor buses and heavy trucks accelerate .
Category 2 : Moderate Commercial and Industrial Areas, and Noisy
Residential Areas . Heavy traffic areas with conditions similar to subsection
(b)(6)(E)(i)
of this Section but with somewhat less traffic, routes of
relatively heavy or fast automobile traffic but where heavy truck traffic is
not extremely dense, and motor bus routes .
Category 3 : Quiet Commercial and Industrial Areas, and Moderate
Residential Areas . Light traffic conditions where no mass transportation
vehicles and relatively few automobiles and trucks pass, and where these
vehicles generally travel at low speeds . Residential areas and commercial
streets and intersections with little traffic comprise this category .
Category 4 : Quiet Residential Areas . These areas are similar to Category 3
in subsection (b)(6)(E)(iii) of this Section but, for this group, the
background is either distant traffic or is unidentifiable .
Category 5 : Very Quiet, Sparse Suburban or Rural Areas . These areas are
similar to Category 4 subsection (b)(6)(E)(iv) of this Section but are usually
in unincorporated areas and, for this group, there are few if any near
neighbors
. 910.106(b)(6)(E)
The evidence clearly shows that the ambient noise by the Complainants home falls within
the definition of Category 1 and not Category 3 . The eight lanes of the Tollway and the
industrial commercial property encompassing the UPS and Burlington Northern intermodal
railroad freight yard as depicted in Jnt. Ex. 1, 2 and 3 constitute a heavy traffic area used by both
heavy trucks and cars
. The area falls clearly within the description of Category 1, with its "very
heavy traffic conditions" from the Tollway ; "intersections of mass transportation and other
vehicles" from the Burlington Northern intermodal facility and the entrance ramp at 75
th
Street;
and especially the "heavy motor trucks and other heavy traffic" and where "heavy trucks
accelerate" at the entrance ramp to 1-294 .
The description of Category 2 does not fit because, despite its requirement of residences
in its definition, it requires that the area be "where heavy truck traffic is not extremely dense ."
The evidence shows that the truck traffic is extremely heavy and it is dense in the area adjacent
to the Complainants' house
. Categories 2, 3, 4 and 5 are not are not applicable, despite the
proximity of the Complainants' residence to the Tollway, because the 75
th
Street interchange and
13
1-294 have more than 140,000 vehicles passing their home every day on 1-294 and more than
7300 vehicles (again mostly trucks) entering and exiting at the 75 th Street interchange . The
Complainants conceded the area was historically an industrial-commercial region and the traffic
is heavy and therefore cannot be described as light . The traffic is so heavy that Mr . Zak testified
that the Complainants' home was the loudest place he tested in the last four years .5 (Tr. II at 103)
Thus applying the ambient noise from a Category 1 area, as detailed in 910 Appendix A,
shows that the Board's background sound levels for heavily traveled pubic right-of-ways, such as
the Tollway, exceed the decibel levels . The "limits" are exceeded sometimes by more than 10
decibels in all but at the 31 Hz and 63 Hz frequencies of 901 .102(a) listed in the chart for the
alleged Class C to Class A .
Based upon the above, it is apparent that Mr . Zak utilized the wrong ambient noise
category . Although Mr. Zak's report states an ambient sound level in his Table 2 (Comp
. Ex.
18), he failed to comply with the regulations requiring that the "raw I-hour L eq must be corrected
for long-term background ambient sound ." 35 IAC 910 .106(a)(4)
. Mr. Zak wrote in his report
that "When ambient levels fall ten or more decibels below the noise source there is no correction
needed." (Comp. Ex . 17 p .7) However, by failing to utilize the proper category, he failed to
include the necessary correction . If he had used the proper category (Category 1) the ambient
noise level would have been greater than most of the noise source frequencies. His failure to
utilize the proper category is fatal to his conclusion because his raw numbers have not been
corrected
. Furthermore, it is questionable whether under the Board's measurement rules it is
attributable
5emission
With few
limits
exceptions,
to the
set
cumulative
forth
the
invehicles
35
effect
Ill . Admusing
of the
.
the
CodevehiclesTollway
902 .
.
(Trwere
. II
not
at 95-97)
in violation
So the
of
noise
vehicle
levels
noiseare
14
-Frequency:
31
63
125 250 500 1000 2000 4000 8000
-901 .102(C) (C to A)
75 74 69 64 58 52 47 43
40
-910 Appendix A
70
71
72 70 67 63 57 53
48
even possible to do a noise study when the ambient noise levels exceed the property-line-noise
source. Nonetheless, Mr. Zak did not apply the necessary correction to his raw data .
35 IAC 901 .103(b)(2) has been interpreted by the Board and the Courts to require strict
adherence to the standard that "all measurements and measurement procedures under subsection
(b)(1)(B)
of this Section must correct, or provide for the correction of such emissions for the
presence of ambient or background noise in accordance with the procedures in 35 Ill . Adm . Code
910." Roti v. LTD Commodities (February 15, 2001), PCB 99-19 slip op. at 19. The Board
also noted in a similar measurement case but involving the Tollway as ambient noise, that one of
the experts "admitted that correction for background noise could not be made because the
background noise from traffic on the Tollway was above the numeric limits in all octave
bands
. . .
[the] estimated levels were not used to correct the measured sound levels."
Id.
Therefore, the Board in Rod could not find LTD violated the numeric limits because the failure
to correct for ambient sound levels . Id. Similarly the Complainants failed to make the proper
correction because the wrong Category was used as the ambient sound . Based upon the
Complainants' failure to strictly comply with requirement to correct for ambient noise, the
numeric violation claim must be denied .
2.
Land Classification
The Complainants not only failed to comply with the measurement regulations, they
incorrectly classified the Tollway as "Class C Land" instead of "Class U Land
." The
Complainants applied the 35 IAC 901 .102 limits associated with the wrong land classification to
the Tollway. The Complainants erroneously determined that the proper land classification of
the Tollway should be "Class C Land" based upon rules not adopted at the time of construction
of 1-294 (1956-1958) ; at the time of construction widening of 1-294 and building the 75`
h Street
interchange (1993) ; at the time of the filing of the Complainants' Compliant (filed September 25,
15
2003) and at the time of the hearing (December 5 and 6, 2005) . The rules 6 were adopted by the
Board on March 2, 2006 and became effective on March 10, 2006 . (See R03-9 at Ill
. Reg
. 5533)
Mr. Zak testified that he used the unapproved rules because "we assumed that at the time we did
our survey that the new rules to be applicable ." (Tr. II at 139)
Mr. Zak conceded that if the regulations indicated that the Tollway was Unclassified,
"there's no restrictions as far as numerical is concerned, but there would still be nuisance" and he
further conceded that when the road was built and the complaint filed they were classified as
"U."
(Tr. II at 240-241) The Complainants provides no legal basis for the retroactive
application of presumed Class C classification. The record shows that it was a mere presumption
that the new rules would be applicable
.
The Complainants also improperly interpreted the subsequently adopted administrative
rule in arguing that toll roads and all highways and public right-of-ways are Land U C because
they fall within LBCS Function 4130 and the Land Use C .
a. Retroactive application of LBCS
The Board should not consider its subsequent adoption of the Land Based Classification
Standard (LBCS) because that Standard should not be retroactively applied to this case . The
Board should apply the Class U Classification from the SLUCM
. The facts clearly show that the
rules utilized by Mr. Zak were not in effect at the time the Complaint was filed and they were
subsequently adopted and became effective on March 10, 2006
. More than two (2) years passed
between the Complaint being filed and the effective date of the rules and more than four months
after Mr . Zak's testified at the hearing on December 5 and 6, 2005 claiming the Tollway
exceeded the numerical standards .
6 In the Matter of
: Proposed New and Updated Rules for Measurement and Numerical Sound Emissions Standards
Amendments to 35111. Adm . Code 901 and 910, approved R03-9 (March 2, 2006) .
16
However, the Board should not retroactively apply the LBCS classification in this case .
Applying the Class C numeric noise restrictions to the Tollway in this case would constitute a
retroactive law
. A retroactive law is "one that takes away or impairs vested rights acquired
under existing laws, or creates a new obligation, imposes a new duty or a new disability to
transactions or considerations already past ." Fireside Chrysler-Plymouth Mazda v
. Chrysler
Corporation, 129 I11.App.3d 575, 581 (l" Dist . 1984). Furthermore, a "legislative amendment
cannot be given retroactive effect in the absence of clear expression of legislative intent to do
so." Id. There is a presumption amendatory action is "only intended to apply prospectively"
which is rebuttable if there is express language or by "necessary implication" it was intended to
be retroactive, but the presumption only applies to substantive law and not procedural . Levy v.
McKiel, 184 111. App.3d 240, 244 (2" d Dist. 1989). Since the alleged change clearly would alter
substantive law and not procedural law, it is legally presumed to be not retroactive .
The Board's decision adopting the rule in R03-9 does not mention retroactive application
but rather an effective date subsequent to the decision . Thus, it is clear that the Board's intent
was that the rule should not be retroactively applied . Furthermore, it is clear from the Board's
description of the SLUCM codes as the "existing regulations" that the Board considered them the
applicable regulations at the time of the March 2, 2006 order approving the LBCS . In the Matter
of: Proposed New and Updated Rules for Measurement and Numerical Sound Emissions
Standards Amendments to 35 Ill . Adm . Code 901 and 910, R03-9, Slip
op . at 7 (March 2, 2006).
The Complainants are bound by the law as it was when their complaint was filed, which clearly
classifies the Tollway as "U."
At the time of the filing of the Complaint and the hearing, the applicable Classification of
Land use was set forth in §901 .101, Appendix B based upon the SLUCM coding system . Based
upon Appendix B, the Tollway would fall under the general two-digit coding number 45
.17
(Highways and street right-of-way), the three-digit 452 (Expressways) and the four-digit, 4520
(Expressways, which is defined in footnote 10 as "divided highways for through traffic with full
or partial control of access with grade separation at major crossroads")
. 35 111. Admin. Code
901 .101, Appendix B, p . 12-13. The applicable regulations categorize the land use for SLUCM
450 as "U" and not "C." Id. Furthermore, the applicable regulations provides that "Class C land
shall include all land used as specified by SLUCM Code 211, through 299 inclusive, 311 through
396 inclusive, 411, except 4111, 412, except 4121, 421, 422, 441, 449, 460, 481 through 499
inclusive, 7223 and 7311 used for automobile and motorcycle racing, and 811 through 890
inclusive ." 35 JAC 901 .101(c). SLUCM Code 450 (Expressways), which includes the Toll
Highway System, is not included in the definition of Class C land use and therefore it is not
subject to the Board's Class C numerical sound limits .
Under cross-examination Mr
. Zak conceded this fact by saying "there's no restrictions as
far as numerical is concerned ." (Tr. 2 at 240-241) Therefore, there is no numerical sound
violation based upon the regulations applicable at the time of filing this case .
3. LBCS designation of public highways
Even if the Board were to apply the new LBCS, the Functions listed in Land-Based
Classification Standards as subsequently adopted by the Board do not categorize the Tollway or
any other public highway, street or right-of-way as Class C . Despite Mr. Zak's contention in the
stricken portion of his report (Comp . Ex. 18, p. 2) that the designation of Class C is based upon
Function Code 4130, it is clear that the Board did not intend to include public right-of-ways in
Class C.
Function Code 4130 falls under the broad general 4100 series "Transportation services,"
which includes the more specific road-transportation functions of the 4130 series, "Road, ground
passenger, and transit transportation;" and the 4140 "Truck and freight transportation services"
18
which are broken down to includes various types of transportation service types, but none of the
categories include the public right-of-way. 35 Ill . Adm
. Code 901, Appendix B . Function
4130, is defined in the LBCS as "[t]he road, ground passenger and transit transportation category
comprises a variety of passenger transportation functions, such as urban transit systems
;
chartered, school and interurban bus transportation ; and taxis. Establishment types primarily
reflect the mode of transit utilized
." Land-Based Classification Standards . (LBCS) (Jeer,
Sanjay. 2001 . Land-Based Classification Standards . Online, http ://www.planning.org/LBC S .
American Planning Association
: Chicago, Illinois) . The Tollway as a highway, obviously does
not fall within that definition .
However, Structure Code 5130 (Highways and roads) is applicable, "The subcategories
provide for roads follow the Federal Highway Administration's (FWHA) functional road
classification scheme ." Id.
The Board in the hearings and its orders up-dating the land
classification system in its Rulemaking Case R03-9 never mentioned that there would be any
impact on public roads, including the Tollway, IDOT or municipal right-of-ways
. Specifically,
the Board in its section on "History of Noise Rulemaking" compares the SLUCM codes and the
LBCS and observes in its brief discussion of Section 901
.101 that "the Board believes that the
LBCS functional categories are very similar to the SLUCM categories listed in the existing
regulations at Part 901, Appendix A
." In the Matter of:
Proposed New and Updated Rules for
Measurement and Numerical Sound Emissions Standards Amendments to 35 Ill
. Adm. Code 901
and 910, R03-9 slip op. at
7 (March 2, 2006) If the Board intended to affect right-of-ways, the
Board would have at least discussed such a major change to the rules
. Because such an
interpretation of the rules would render many if not most of the right-of-ways and highway in
urban areas to be in violation of the Board's numeric standards, it would necessitate the
remediation of hundreds, if not thousands of miles of roads that would be in violations of
19
numeric noise levels associated with Class C land use . This would impose a substantial cost on
the State and transportation agencies without even a mention or comment from Board concerning
this interpretation
. The absence of comments on this issue from the Board is indicative of the
Board's intent of merely updating the classification system and not expanding the universe of
Class C land uses .
Additionally, the Tables in the Appendices of 35 Ill . Admin. Code 910 .106(b)(6)(E),
which set forth the ambient/background noise levels for the five categories of land, especially for
Categories 1 and 2 which are clearly derived from heavy truck and other vehicular traffic found
in heavy industrial areas, indicates that the Board did not intent to restrict the noise coming from
public right-of-ways such as highways and toll roads . The Board also did not limit or modify its
regulations of noise emissions from motor vehicles in 35 III
. Admin. Code 902 . The Board's
obviously did not intend to restrict the noise from highways and public right of ways because the
background levels of road noise would not exceed those found in Class C properties if they were
regulated
. Therefore, by omitting to modify the ambient noise tables associated with road traffic
and/or the noise emission from the vehicles themselves, the Board made it evident that it
intended not to expand those land uses, such as
roads, which would be captured by the expansion
of Class C land uses, but rather to merely update the category system without expanding land
uses falling within Class C
.
The Complainant misclassified the Tollway's roads under LBCS 4130 and thereby
erroneously categorized the Tollway as Land Class C
. Under the LBCS the Tollway as any
highway or right-of-way is not classified as Function 4130
.
The Board should deny the Complainants' claim that the Tollway violated the numeric
noise limits in 35 IAC 901 .102 because the Complainants failed to strictly comply with the
Board's measurement regulations ; the Complainants incorrectly applied the wrong LBCS to the
20
Tollway and erroneously the Class C land use category to the Tollway, which was and is
"Unclassified" ; and the Complainants tried to apply retroactively rules it construed (incorrectly)
made the Tollway a Class C property without any clear legislative intent of the retroactivity of
the rule change
. Therefore . the Complainants' claim that there was a numeric violation should
be denied .
B
. The Tollway Does Not Create a Nuisance
The Complainants next allege that the noise generated by vehicular traffic on the Tollway
constitutes a public nuisance violation of 35 Ill . Admin . Code 900 .102.7
Although the
Complainants do show that the noise interfered with their enjoyment of life, they failed to
establish that the sound emissions generated by the Tollway are unreasonable and thereby
constitute a public nuisance
. The factors to be considered listed in the Environmental Protection
Act weigh in the favor of the Tollway . 15 ILCS 5/33(c). The Board must consider consideration
"all the facts and 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 ."
Id.
7
The Noise Section of the Environmental Protection Act has as its purpose "to prevent noise
which creates a public nuisance ." 415 ILCS 5/23 .
"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 ." 35 IAC 900 .102 .
Noise pollution is defined as "the
emission of sound that unreasonably interferes with the enjoyment of life or with any lawful
business or activity ." 35 IAC 900 .101 .
21
Although the Complainants presented evidence that the sound emissions interfered with
their enjoyment of life, the Board and the Courts have consistently required more
. "Noise
emissions are a noise nuisance if the noise interferes with the complainant's enjoyment of life
and the interference is unreasonable .
[Cites omitted] The principal difficulty in determining
whether noise emissions constitute a nuisance lies in defining the level at which the interference
becomes unreasonable
. The Board must balance the costs and benefits of abatement in an effort
to distinguish "'the trifling inconvenience, petty annoyance or minor discomfort"' from a
",
substantial interference with the enjoyment of life and property
.' [Cite omitted]"
Roti v. LTD
Commodities, 355 I11 .App.3d 1039, 1051 (I11 . App.
2"d
Dist. Feb 09, 2005) The Board must
weigh the five listed factors in Section 33(c) factor in ascertaining the reasonableness of the
noise emissions . Id.
1 .
Interference with health, general welfare and physical property
Although at the hearing the Complainants testified at great lengths about how the noise
interfered with their sleep and enjoyment of their property, the facts in their totality indicate that
the interference does not rise to the level of substantial interference
. The first factor considers
the "character and degree of injury to, or interference with the protection of the health, general
welfare and physical property of the people
." 415 ILCS 5/33(c)(1)
. The factor requires the
consideration of the Complainants' health, general welfare and their property
. Michael Petrosius
testified that the noise interrupted his sleep (Tr
. I at 32) and that it was the unusual noises like
jake-braking (low frequency) and banging and clanging of trucks (high frequency impact sounds)
that disturbed his sleep the most
. (Tr
. I at 53 and 62) Darla Petrosius testified that she, her
husband and one daughter (occasionally) wake up at night because of the noise
. (Tr. I at 86)
However, they did not testify that they suffered any adverse health problems or other problem
other than the inconvenience of waking up from the noise
. The Tollway concedes that the
22
records supports a finding that there was interference with their enjoyment of life, the question is
the degree of interference and "accordingly the Board must consider if the emissions
unreasonably interfere with the complainants' enjoyment of life ." Saxbury and Saxbury v.
Archer Daniels Midland, Hull, Illinois Division, PCB 04-79 Slip op. at 10.
The Complainants argue that the Board should consider Mr
. Zak's noise readings in
considering the character and degree of the noise citing D'Souza v
. Marraccini, 1996 Ill .
Env.Lexis
510 at 15 (PCB96-22 May 2, 1996) . However, as noted above, the Tollway did not
exceed numeric limits . Although they readings are high
(P.E. 18) they within the range of
background/ambient noise the Board adopted for areas like the 75` h
Street interchange which fall
within a Category 1 . 35 IAC 910.106(b)(6)(E) . The unrebutted evidence from the Tollway
expert Mr
. Barbel and Mr. Zucchero clearly established that the Tollway complied with FHWA's
guidelines for noise when the Tollway planned, designed and constructed the widened 1-294 and
the 75`h Street interchange
. Both Mr . Barbel and Mr . Zucchero testified that they conducted tests
at the Complainants' home and found that the wall was effective in reducing noise and was
designed and constructed properly . (Tr . I at 173 and Tr
. II at 205 ; see also Resp. Ex. 15 and 17)
The impact of the noise emissions on the Complainants should not be considered
substantial
. Although the Complainants testified about how the noise disturbed their sleep,
prevented them for using their backyard and generally interfered with their life, their actions
remodeling their home contradict their words . They spent $30,000 to convert the garage into a
family room and adding a four season room that goes into the backyard but not spending any
money on the area they sleep indicates a different priority . They testified that they did not want
to move so they fixed up the house around to address their needs
. (Tr . I at 55-58) However, their
needs had nothing to do with the noise they claim that bothered them so much
. Their priorities
in home improvement show that the noise was more of a "trifling inconvenience, petty
23
annoyance or minor discomfort" than "substantial interference with the enjoyment of life and
property."
The Complainants also assert that they do not use their property to the extent that they
would like because of the noise
. This includes having to keep the windows closed, not using the
outdoors and entertaining friends infrequently . (Tr
. I at 43) This should not be considered
substantial in light of Complainants' improving the home without regard to the noise as noted
above
. Although the use of the Complainants' property may have been limited, the value of their
property has increased substantially
. Mr
. Petrosius testified that they purchased the house so
quickly because they knew they "were getting a deal
." (Tr
. I at 72) He testified that they
purchased the house for $145,000 in 1995 and by 2003 the appraised value was $260,000
. (Tr
. I
at 71-72) They acknowledged that their home's proximity to the Tollway affected the price of
the home at the time of purchase because comparable homes were selling for $200,000
.
However, that was one of the reasons they bought the home
.
The evidence showed they were willing to buy the house despite the Tollway and the
noise because they liked the house . Mr
. Petrosius testified that he was aware that the Tollway
was next to the house but liked the house and the area (Tr
. I at 28)
. They should have reasonably
heard the traffic noise but claims that he was "blinded by the area" into not noticing the
"constant" traffic noise . (Tr
. I at 51) On the other hand, Mrs
. Petrosius testified that before
buying house, she "heard the traffic noise" and saw pavement on the road over the wall, which
were the faults they are now complaining about
. (Tr
. I at 90) The evidence showed that the
Complainants knew what they were buying and ignored the noise because it was a great deal
.
The fact that the Complainants wake up at night and have to keep their windows closed
and not use their property to the extent the would like is only part of the first factor's analysis
.
The Board also has to consider the character and degree of injury to, or interference with
24
"general welfare and physical property of the people." 415 ILCS 5/33(c)(i) . [emphasis added]
Although several parties filed comments stating that the traffic noise adversely affects them,
there is no evidence or inference that the noise affects the other people involved : the more than
140,000 drivers passing the 75`h Street interchange daily
. There is no evidence or inference that
the noise adversely affects the industrial-commercial activity that is conducted at the UPS
facility or the Burlington Northern intermodal freight facilities serviced by the 75th Street
interchange .
The Board has consistently looked at more than just the interference to Complainants .
The Board has noted that "there comes a point at which the evidence establishes that, whatever
the complainants' subjective experience, there is no unreasonable interference with the noise
source is evaluated objectively." Saxbury, at 10 . citing Sweda v
. Outboard Marine Corporation
and the City of Waukegan, PCB 99-38 (August 5, 1999) and Scarpino v. Henry Pratt Co ., PCB
96-110
(Apr. 3, 1997) . In Saxbury the Board noted that the noise source "did not generally
interfere with enjoyment of life, lawful business or activity in the
noise impact community as a
whole ."
[emphasis added] Id. The evidence clearly shows that a reasonable inference can be
made that as a whole, the community's general welfare and property interests are not adversely
affected by the noise from the vehicles using the Tollway. Those using the Tollway and the 75th
Street interchange are benefited by the Tollway's presence while they are not adversely impacted
by the noise generated by the Tollway .
Therefore, the Board should find the character and degree of interference to be minimal
in light of the totality of the public as a whole and the Complainants in particular
.
2. Social and Economic value of the Pollution Source
The undisputed evidence clearly shows that the Tollway in general and specifically at and
by the 75`h Street interchange has enormous positive impact on the social and economic well
25
being of the community and the State
. The Tollway and the interchange not only address the
traffic needs of the area and make travel within and through the State easier, but it also provides
a large number of jobs and billions of dollars of economic activity for the communities along the
Tollway as well as billions of dollars of merchandise entering the stream of commerce through
the 75`h Street interchange. (Tr . I at 191-198) The Tollway itself does not create the noise,
rather it is the vehicles that travel on it that creates the noise . The level of the noise increases
and decreases in direct proportion to the social and economic impact of the Tollway
. As
commercial and personal vehicle use increases there is a corresponding increase in the economic
and social impact the Tollway has on the community
. With the Tollway providing a strategically
placed modem and efficient means for commercial and personal travel through and in the State,
it has become a vital component to the State's economy . The social and economic value of the
Tollway as the "pollution source" is enormous and it is even significant to the Complainants,
who use it on an almost daily basis and that formed part of the basis for selecting their home .
Therefore, the social and economic impact of the vehicles using the Tollway weighs
heavily in favor of the Tollway.
3. Suitability of Tollway in the Area
The Tollway and the 75` h Street interchange are ideally situated in its their current
location because they are adjacent to a major historically commercial-industrial area in the
region and provides road access to and from the railroad and the UPS facility.
The suitability of the Tollway and the 75`h
Street interchange is properly demonstrated by
the aerial photographs of the area . (Jnt.Ex. 1, 2 and 3) The photographs clearly depict an area
with a heavy concentration of various modes of transportation - the railroad, UPS facility and the
canal - adjoining and accessible to the Tollway by the 75
th
Street interchange . The unrebutted
testimony of Mr. Zucchero was that the area around of the 75
th
Street interchange was described
26
as looking "much more industrial here than residential" (Tr
. Vol
. I at 198) and the area, based
upon historical and current use, makes the placing of the 75
th Street interchange suitable to its
environment. (Tr. Vol
. I at 233) The Complainants conceded that the area was historically an
"industrial-commercial area." (Tr
. I at 61) Furthermore, the 75 th
Street interchange was built
after the Tollway, MOT and the Village of Hodgkins entered into an intergovernmental
agreement for the construction of the interchange which was in the best interest of all parties
.
(Comp. Ex. 15)
Furthermore, the Tollway's Board performed its statutory duty to "construct, operate and
maintain a safe, modem and limited access highway designed for the accommodation and the
needs of the traveling public within the State,"s
when it approved the planning, design and
construction of the Tollway, the widening of the Toliway and the 75th
Street interchange . (See
Tr
. II at 18) The Tollway approved plans and authorized the $500 million widening project
which included the 75 th
Street interchange and $11 million dollars for noise walls
. (Tr
. II, 7-8
and 19) The General Assembly delegated to the Tollway's Board the responsibility to make
such determinations:
All determinations made by the Authority in the exercise of its
discretionary powers, with the approval of the Governor if such approval
is expressly required by the provisions of this Act, including without
limitation, the location and terminal points of any toll highway or section
to be constructed by it,
the materials to be used in its construction, the
plans and specifications thereof
the tolls to be charged for the use thereof,
and the letting of contracts for the construction of toll highways or any
part thereof, or the sale of bonds, shall be conclusive and shall not be
subject to review by the courts or by any administrative agency of the
State." 605 ILCS 10/32 . [emphasis added]
Finally there is the "the question of priority of location in the area involved
." 415 ILCS
5/33(c)(3)
. The Tollway, including 1-294, was built and became operational in the 1950's
. The
Complainants' home located at 7335 Maridon Road, LaGrange, Illinois was built in 1964 (Resp
.
e Toll Highway Act, 605 ILCS 10/ 1 .
27
Ex . 2 and 3), after the Tollway was constructed and in operation . Later, the Tollway spent $500
million on the central portion of 1-294, which included the 75` h Street interchange . (Tr. Vol
. II at
7-8) This also included $11 million for construction of noise walls
. (Tr. Vol. II at 19)
Even the Complainants conceded that when they purchased the house it was on the edge
of a residential area adjacent to the Tollway and that the Tollway, including
75th
Street
interchange and the noise walls, were there before they bought the house
. (Tr. Vol . I at 71 .) As
discussed above, they "heard the traffic noise" and saw pavement of the road over the wall
before they bought the house . (Tr. I at 90) And it is apparent that they bought the house
knowing there was noise from the Tollway but bought it because they liked the area and thought
it was a good deal. (Tr . I at 72)
Based upon the evidence, it is clear this factor is clearly and heavily on the side of the
Tollway. The evidence shows that the Tollway's 1-294 and the 75
th Street interchange are
ideally situated to enhance social and economic benefits associated with the area's historic heavy
industrial-commercial activities .
The Tollway has temporal priority over the Complainants'
house which was built after the roadway . Further the Complainants moved in after the Tollway
was widened, the 75` h
Street interchange was constructed and the noise wall was erected .
Therefore, the suitability of the Tollway in the area strongly favors the reasonableness of the
noise coming from the users of the Tollway .
4. Technical Practicability and Economic Reasonableness of Mitigation
The Complainants failed to establish both the practical and economic reasonableness of
the proposed noise wall for reducing the noise generated by the users of the Tollway . Indeed the
Complainants fail to address this issue
. Although they argue that the Complainants have made
efforts to reduce the impact of the noise by performing some self-help, they do not present any
factual or legal basis for the mitigation they propose, which is a longer and higher noise barrier
28
wall. The facts brought out at the hearing clearly show that not only is it unlikely that the wall
proposed would reduce the noise substantially but it is uncertain that such a wall is possible to
build
. Furthermore, the wall is not economically reasonable to build based upon its cost, the
limits of money available to pay for it and established objective standards for cost benefit
analysis for sound walls. The Board has observed part of the test is the need for "practical
solutions that are economically reasonable to alleviate the interference
." Gardner and Gardner
v. Township High School District 211, PCB 01-86, Slip
op
. at
13 (July 11, 2002) .
The Complainant did not establish that the proposed wall would be effective
. The
testimony established that the Complainants' principal concern was noise from trucks (causing
them to wake at night), specifically their acceleration and deceleration (fake-braking) and the
impact noises from the banging of the trucks . (Tr. I at 29) Mr
. Zak conceded that the proposed
18 foot wall would not reduce the noise levels to the limits for Class C to A . (Tr . II at 126) The
proposed wall would not even break the line of sight of the vehicles, which he found to be a
problem with the wall.
The wall by the Complainants' house (Station 1344 to Station 1349) is stepping down
while the land slopes down toward the wall (to allow for the drainage ditch) and from the wall
slopes up again . (Comp. Ex. 16) At Station 1345 the pavement is higher than the wall and the
height is 10.5 feet. Around it the walls range from 12 .5 feet at Station 1346 to 14 feet at 1347
and drops to 8 .6 feet at 1344 at the end. (Comp. Ex.16; see Mr. Wagner's description in Tr . II at
39-42) In order to break the line of sight that Mr . Zak said was necessary (Tr . II at 109), the wall
would have to be at least 13 feet above the pavement height (Mr . Zak noted a couple of feet extra
would help) which is about 10 feet above the height of the wall currently installed
. This would
require total height of at least 23 feet to meet Mr . Zak's criteria and exceeds the proposed wall
height by five (5) feet .
29
Mr. Barbel testified that the proposed wall height does not factor in the low frequency
sounds and the impact sounds that need higher : walls about 20 to 30 feet above the pavement
requiring a wall up to 45 feet tall . (Tr. II at 206 and Resp
. Ex. 17)
Finally, since both Mr. Zak and Mr
. Barbel observed that noise perception is subjective
and since the wall would not be totally effective, it is fair to conclude that the proposed wall
would be built without helping the Complainants at a substantial cost
.
The other feasibility issue is whether it is possible to construct the wall of the suggested
height
. It appears that the proposed 18 foot wall is based upon Table 3a of the Versar study
which "recommends" an 18 foot wall
. (Comp. Ex . 17) However,
as discussed above, the
designer had to consider not only the Versar recommendations and the Tollway policy, but also
soil types, hydrology and drainage . (Tr
. II at 68-69) As was readily apparent in the photos of the
wall from the Tollway side, there is a large drainage ditch, which was identified as a the reason
to move the wall so the ditch could be maintained . (Tr . I at 208) and Resp . Ex
. 11, 12 and 13)
The Complainants failed to address the fundamental question which the Tollway's
designers addressed when designing the wall
: would the abatement measures "pose a threat to
safety, hinder maintenance or create operational problem to drain the environment, obstruct
drainage or alter watershed boundaries ." (Resp
. Ex. 8) The Tollway limits wall heights to a "20
feet, maybe 22 feet" because of structural stability and wind load
." (Tr
. I at 210) Walls that are
above 20 feet "gets into cost-effectiveness issues and also gets into structural issues
." (Tr
. I at
213) However, the average height of a Tollway noise wall is 12 tol6 feet
. (Tr
. I at 213) Neither
Mr
. Wagner, the Tollway's project engineer nor the sound experts were willing to testify that the
wall proposed by the Complainants was able to be reasonably and safely constructed at that
location .
30
The final issue is the economic reasonableness of tearing the existing wall down by the
Petitioner's home and replacing it with a higher and longer wall
. The Complainants never raised
the cost issue and just assume that cost is not an issue . However, Mr
. Barbel testified that the
cost of the wall proposed by the Complainants would be at least $800,000, while a wall that
mitigate to a level that addresses the Complainants' concerns, if it could be built, would cost at
least $1 .3 million . (Tr
. II at 207) These estimates, not provided by the Complainants, are
planning estimates and not based upon designs and if anything unusual were found in the soil
type (such as sand or peat), the hydrology or drainage, the costs would only increase
. The
expenditure of $800,000 would be unreasonable under IDOT's guidelines ($24,000 per residence
impacted). Such an expenditure would require 33 residences being mitigated
. Furthermore, such
an expenditure would be unreasonable un the Tollway's guidelines of $30,000
. It would require
need about 26 residences being remediated . (See Resp . Ex. 5 and 6 and Tr
. II at 207)
Even including the handful of neighbors that submitted comments or a review of the
Aerial photograph shows that less than 10 residences could even be generously included in the
number of residences . In Roti,
the Board reviewed its decisions on economic feasibility, noting
that it found reasonable walls that cost from $2,220 to $20,000
. PCB 99-18, Slip op. at 29. The
Board noted that $300,000 was a significant sum for a for profit business such as LTD and that it
was reluctant to order such an expenditure without more certainty as to the effectiveness of the
design . Id. at 29-30 . Therefore, the cost per residence would not justify such a standard based
upon the objective standards established by DOT and the Tollway guidelines .
The Tollway guidelines are summarized and distributed to the pubic (Comp . Ex. 8). The
Tollway applies them strictly and equally to all parties . Ms
. Anderson testified that the Tollway
does not deviate from its guidelines and strictly follows them
. (Tr. I at 131) Although Ms.
Petrosius claimed that she does not want to be treated any different than anyone else, (Tr . I at
31
102) what the Complainants propose would be completely atypical and contrary to the Tollway's
noise policy that is applied equally to everyone
. Similarly Mr. Zucchero testified that the
Tollway followed its draft policy which was and is based upon FHWA's guidelines
. (See 23
CFR 772 in Resp . Ex. 7)
. The Board should give the Tollway Board's decision great weight
.
Since it was legislatively granted the authority to make the financial and planning decisions
related to Tollway, its decision to plan, design and construct the 1-294 and the 75
th
Street
interchange with the sound wall it approved per its policy should carry great weight . This is
especially relevant in the budgetary considerations for such significant expense
. As described by
Mr. Zucchero, the Tollway does not operate with a profit and all projected funds are budgeted
:
any unexpected expenditure would require a cut somewhere else
. (Tr. I at 182-183) Therefore,
there are no available budgeted funds to install the proposed wall nor are their profits that could
be used to pay for the wall . Thus it is economically unreasonable for the Tollway to demolish
parts of the existing wall, which is effectively mitigating the noise now, and erect a new higher
and longer wall
.
The evidence clearly shows that the Complainants' proposed wall is not technically
practical because it does not reduce the noise emissions based upon the requirements of their
own expert and because there is no evidence that their proposed wall could be designed and
reasonably constructed
. Furthermore the evidence established that the proposed wall would not
sufficiently mitigate the noise to meet the noise limitations described to by Mr
. Zak .
5. Subsequent Compliance
The evidence shows that although the Tollway previously built a noise wall at the cost of
$11 million when it widened 1-294, it nonetheless responds to all complaints about noise
. In
Saxbury,
the Complainants maintained that after the mitigation the noise source was still an
interference but Board noted that the factor favored the Respondent because they made
32
"significant efforts to reduce the noise" by spending $5,600 trying to resolve the noise issue .
PCB 04-79 at 13-14 . In the instant case, the Tollway expended $11 million building noise wall
along with the costs for noise studies and design of the wall . The Tollway undertook extensive
measures to address the Complainant's concerns consistent with the Tollway's policies . Ms.
Anderson testified that the Tollway takes all noise complaints seriously
. (Tr. I at 139-140) She
testified that whenever a complaint comes in, the Tollway tries to address it or at least explain
the Tollway's policy. (Tr. I at 139-140) She testified that the Tollway upon hearing Mr .
Petrosius' initial complaint responded by finding out his concerns and ground down bumps on
the Tollway by his home . (Tr. I at 131-133) Furthermore, the Tollway responded to their
concerns by conducting a field test to ascertain whether the wall was constructed properly and to
determine the effectiveness of the wall
. Upon inspection and testing, Mr. Zucchero concluded
the wall was constructed to the design specifications and that his informal test showed that the
wall was effective
. (Tr. I at 173) Since the wall conformed to both the Federal and the Tollway
guidelines and there was nothing wrong with the wall as constructed, there was nothing the
Tollway could do for the Complainants .
Therefore, this factor goes slightly toward the Tollway because the Tollway tried, within
its policies, to help the Complainants .
6. Factors Show Noise Emissions are Reasonable
The evidence overwhelmingly shows that the noise emissions generated by the vehicles
using the Tollway are reasonable in light of the fact that the impact that the noise has on the
Complainants' health and enjoyment of the property is clearly dwarfed by the benefits the
Tollway provides to the general welfare of the people and the enormous social and economic
value the Tollway provides the State, the communities serviced by the Tollway and the
businesses that utilize the Tollway to deliver billions of dollars worth of goods and employ many
33
individuals . In addition, the location of the Tollway and the 75 °
Street interchange is ideally
suited for its surroundings
. It was built before the Complainants' house was built on the border
of an area that has been historically heavily industrial and commercial, which to this day remains
heavily industrial and commercial with a large number of heavy trucks and trains going through
the area
. Finally, the reasonableness of the noise emission of the Tollway and the 75
th
Street
interchange is firmly established when the Board considers that the Tollway already conducted a
noise study pursuant to Federal Highway Administration regulations, hired a State of Illinois
licensed professional engineering firm to design a noise wall considering the noise study
recommendations and constructed the noise wall at a cost of more than $11 million . This wall
has been shown to effectively reduce noise from the Tollway
. On the other hand the
Complainants failed to show that their proposed wall is technically feasible to build and even if
built would reduce the noise sufficiently address the Complainants concerns
. The Complainants
failed to show that their wall was economically reasonable, on the contrary, the Tollway
established that it would be extremely expensive and not economically feasible to design and
construct the proposed wall .
Therefore, the Board should find the noise emission to be reasonable and that they do not
constitute a public nuisance
.
C.
Civil Penalties
The Board should not assess any civil penalties
. 415 ILCS 5/42 . Not only does the
Complainant not seek them, but they are not warranted
. The Tollway has gained no economic
benefit from the noise generated by the traveling public
. Although the Tollway collects tolls, the
tolls are used exclusively for governmental purpose and not private gain .
The noise is generated by vehicles the State and Federal governments licensed and
thereby authorized to travel on the roads
. The Tollway's statutory purpose is to design, construct
34
a system of toll roads for the traveling public
. The evidence clearly established that not only did
the Tollway do this but it also at great expense mitigated the noise using Federal Highway
Administration guidelines that it was not bound to follow
. The unrebutted evidence established
that the Tollway followed its voluntarily adopted rules and policies for noise abatement for the
benefit of those people who are next to the Tollway
. Therefore, the civil penalties are not
warranted because the Tollway did not violate any regulations and took voluntary measures at
great expense to attempt to mitigate the noise as best as technically and economically feasible
.
WHEREFORE, the Tollway moves the Board to find in its favor and enter judgment in
its favor and against the Complainants and dismiss the Complaint
.
Illinois State Toll Highway Authority
June 30, 2006
Victor F . Azar
Assistant Attorney General
Illinois State Toll Highway Authority
2700 Ogden Avenue
Downers Grove, IL 60515-1703
(630) 241-6800 Extension 1540
By:
fIQ/{I~,~
Lisa Madi
Attorney General for the State of Illinois
35
