RECEIVEDCLERK'S
OFFICE
JUL 3 1 2006
Pollution
STATE OF
Control
ILLINOISBoard
IN THE MATTER OF :
)
MICHAEL A
. PETROSIUS and DARLA
)
G
. PETROSIUS
)
Complainants,
)
v.
)
No . PCB 04-36
(Citizen's Enforcement
ILLINOIS STATE TOLL HIGHWAY
)
Noise)
AUTHORITY
)
Respondent.
)
NOTICE OF FILING
TO : Carol Webb
Victor Azar
Hearing Officer
Special Ass't Attorney General
Illinois Pollution Control Board
Illinois Tollway
1021 N
. Grand Avenue
2700 Ogden Avenue
Springfield, Illinois 62794
Downers Grove, Illinois 60515
PLEASE TAKE NOTICE that on July 31, 2006, Mike and Darla Petrosious,
through their attorney Scott Dworschak, filed with the Office of the Clerk of the
Illinois Pollution Control Board, an original and ten copies of the attached Reply
Brief, a copy of which is served upon you
.
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
Scott Dworschak
1343 North Wells
Chicago, Illinois 60610
312-944-8200
RECLEC
.EICV
I
ED
JUL
3
1 2006
Pollution
Control
STATE
Board
IN THE MATTER OF :
)
MICHAEL A
. PETROSIUS and DARLA )
G
. PETROSIUS
)
Complainants,
)
V .
)
No. PCB 04-36
(Citizen's Enforcement
ILLINOIS STATE TOLL HIGHWAY
)
Noise)
AUTHORITY
)
Respondent
.
)
COMPLAINANTS' REPLY BRIEF
Complainants, Michael and Darla Petrosius, files this reply brief with the
Illinois Pollution Control Board ("Board") in support of their Complaint against the
Respondent, Illinois State Toll Highway Authority (hereinafter referred to as the
"Tollway").
I.
OVERVIEW
.
Noise analysis performed by Complainants' sound expert, and presented
as evidentiary testimony at the December 2005 Hearing, confirms the existence
of noise levels above standards promulgated by the Board and contained within
the numerical standards set forth at 35 III . Admin. Code § 901 .102
. Noise
analysis performed by the Tollway's sound expert also confirmed noise levels
exceeding Board criteria .
The uncontested evidence proves that the Tollway is the source of the
noise reaching the Complainants and their property
. However, Respondent
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
1
Tollway unconvincingly argues that there is no noise violation because the
provisions of the Illinois Environmental Act do not apply to the Tollway or the
roadway that is the source of the noise violation
. The Tollway also argues that
the non-binding noise rules they have unilaterally adopted may supersede the
Board's jurisdiction and authority .
The excessive noise levels also interfere with Complainants enjoyment of
life creating a nuisance as prohibited by 35 III . Admin
. Code § 900 .102
.
Complainants acknowledge the Tollway has attempted to reduce the noise
interference
. However, the Tollway's efforts are ineffective, inconsistent and
incomplete, and not in compliance with law or Board requirements
.
II.
NOISE MEASUREMENTS BY THE COMPLAINANTS AND THE
TOLLWAY PROVE VIOLATIONS OF NUMERICAL NOISE
LIMITATIONS .
A.
Noise Measurements Taken by Complainants Comply With All
Procedural and Substantive Requirements .
In their brief, the Tollway argues that Complainants' sound expert (Greg
Zak, hereinafter Mr
. Zak) failed to correctly address the issue of ambient sound
.
It appears that the Tollway's assertion is partly based upon their belief that
Complainants incorrectly determined the category under which the property in
question was defined in accordance with The Board's Tables of Long-Term
Background Ambient Noise ("Tables")
. However, the Tollway's assertion is
incorrect, and inconsistent even with their own analysis
.
2
Title 35 defines "ambient" as
:
the all-encompassing sound associated with a given
environment without contributions from the noise source or
sources of interest .
The Code also defines "Background ambient sound level" as
:
the ambient sound level, measured in accordance with the
procedures specified in 35 III . Adm . Code 910
.
See 35 III . Adm
. Code 900
The purpose of obtaining an ambient noise reading is to evaluate the
existing noise conditions but for
the noise source of concern or interest
. Clearly
the Tollway noise is the source of the Complainants' concern and interest
. In the
case at bar, Complainants' expert, Mr
. Zak, properly employed procedures for
obtaining and adjusting for the background ambient noise as recommended by
the American National Standards Institute (ANSI), specifically S12
.9/Part 3-1993
.
ANSI's terminology and procedures are relied upon throughout the Board's own
rules and standards .
At the Hearing, Mr
. Zak testified as to the predominant nature of the
Tollway noise . (Tr
. II at 119)
. He also explained the procedures he employed in
order to attempt to determine the ambient noise level, and the difficulties he
encountered . (Tr
. II at 154)
. It is uncontroverted that the Tollway is the prime
noise generator in the area in question .
Since Mr
. Zak was unable to record the ambient noise level on the
Complainant's property, he followed the standards as set forth by the ANSI
regulations
. Applying ANSI standards, which have been subsequently adopted
by the Board in similar and substantial form, Mr
. Zak determined that the property
3
in question would be considered a "Quiet commercial, industrial, and normal
urban and noisy residential areas (Category 3)" . ANSI S12
.9/Part 3-1993 9 .3.
It is clear that this determination is correct when the "source of interest"
i .e
. the Tollway noise is removed from the equation as per the Board's policy
.
The Tollway's assertion that Complainants property should be categorized as a
Category 1 are incorrect when the Board's definitions are applied to the facts in
this case
. The proper method of accounting for the ambient noise has been
correctly applied by Mr
. Zak in this case
. Corrections required due to the
overwhelming noise source of interest have been obtained by applying proper
measurement alternatives as prescribed by ANSI
. As such, high noise levels
originating from the Tollway exist, and continue to reach the Complainants, in
clear violation of the Board's numeric noise levels
.
The Tollway's attempt to cite to Rob v. LTD Commodities
PCB 99-19
(February 15, 2001) in an effort to assert that they should not be subject to the
Board's numeric standards fails
. Their interpretation of the Roti ruling is
incorrect
. The Roti ruling (determining that a numeric violation was not present)
was based upon a finding that a technical correction for background noise was
improper, and
that sound levels were not averaged in accordance with standards
as set forth in 35 Ill
. Adm. Code 901 .103, Id. at 19.
The facts presented herein regarding the ambient noise are different than
those found in Roti
. In the case at bar, Mr
. Zak's was unable to obtain an
ambient rating for his noise analysis of the area
. (Tr
. II at 119) In order to obtain
alternative measurement data, Mr
. Zak applied the proper protocol
.
4
(Complainants' Exhibit 18, pg
. 4) In effect, Mr
. Zak utilized the "category" system
based upon the predominant land use of the area
. This procedure is recognized
by the Board, and properly accounts for the ambient noise
.
Ill. NOISE FROM THE TOLLWAY
CREATES A NUISANCE
A.
The Tollway Noise Constitutes
a Substantial and Unreasonable
Interference
Complainants allege that the Tollway violates Section 24 of the Act and
Section 900
.102 of the Board Regulations . 35 III . Adm
. Code 900 .102; 415 ILCS
5/24 (2000)
. In order to determine whether noise emissions rise to the level of a
noise pollution violation, the Board is required to perform a two-step analysis
.
First, the Board determines whether the noise constitutes an interference in the
enjoyment of complainants' lives and second, determines whether the
interference is reasonable
. Charter Hall Homeowner's Association and Jeffrey
Cohen v . Overland Transportation System, Inc.,
and D.P. Cartage, Inc ., PCB 98-
81 (Oct 1, 1998) at 19-21
.
The Board has held that the following disturbances constitute interference
:
noise interfering with sleep and use of yard
(Hoffman v. Columbia
. PCB 94-146,
(Oct
. 17, 1996) (Hoffman) slip . Op. 506, 17)
; and, noise impacting sleep . . . and
conversing (Thomas v
. Cart/ Companies of Illinois, PCB 91-195 (Aug
. 5, 1993),
slip op. at 13-15).
In their brief, the Tollway attempts to diminish and downplay the degree to
which their noise interferes with the Complainants' enjoyment of their lives
.
However, the level of noise interference is substantial and unreasonable
. At the
5
Hearing, complainants testified as to the noise impact on their
sleep (Tr. I at 32,
53, 62, 86), use of medically prescribed sleeping pills (Tr
.
I at 32), conversation
impacts (Tr
. I at 83) and use of their side yard (Tr . I at 86.)
These negative
impacts are similar to those already found by the Board to constitute
interference
as in
Hoffman and CCa , supra .
Additionally, the Board held in
Roti v
. LTD Commodities, supra, that
impacts such as difficulty in falling or awaking from sleep,
loss of use of their
outside deck, and affects on the Complainants' children,
all constituted an
interference with enjoyment of life
.
Roti Interim Opinion, at 23 (Feb . 15, 2001).
The exact same type of interferences are present in the case at bar,
and the
Board has found in numerous cases that these types of impacts constitute
an
interference .
The next step of analysis requires the Board to address whether the
noise
from the Tollway has unreasonably interfered with Complainants
enjoyment of
life pursuant to factors set forth in 415 ILCS 5/22(c)
.
When properly evaluated,
these factors weigh against the Tollway
. Complainants stand by their Hearing
testimony and the facts as presented in their initial Brief
.
However, Respondents
Response Brief presented some allegations and assumptions that
cannot go
unchallenged .
The Tollway criticizes Complainants for converting their garage
into a
family room, and adding an enclosed porch, and not spending any
money near
the bedrooms
. (Respondent's Brief pg . 23)
Respondents further allege these
actions "indicate a different priority" Id
. While Complainants need not defend
6
their actions in improving their residence, their testimony clearly
addresses these
issues
. First, Complainants were starting a family and required additional space .
(Tr
. I at 55, 68) Second, Complainants contacted a window company regarding
their bedroom windows, however, they were advised that new windows
would
"help but not solve" their noise problem. (Tr
. I at 57) Complainants explored
several options regarding improvements to their home. They should not be
subjected to the Tollway's speculative and self-serving improvement list as it
pertains to Complainants' home .
Finally, Respondents somehow regard the appreciation of the
Complainants home as a factor the Board should consider against the
Complaint .
(Respondents Brief pg
. 24) There are numerous factors that affect the value of
residential property.
Complainant testified that he invested $40,000 into
expanding his home for his growing family. (Tr. I at 74) Second, while the
home's value did increase, testimony was presented regarding the overall
increase in homes in the Chicago market since 1995 . (Tr. I at 74) Ultimately, the
Board should not consider any appreciation in the home's value against
Complainants. Experts from both parties testified the installation of a noisewall is
the preferred, and most effective means, of reducing roadway noise from
reaching adjacent residential areas
. (Tr. II at 107, 183-4) Unfortunately, the cost
of an effective noisewall is beyond the financial resources of the Complainants.
7
B.
Complainants Noisewall Recommendation
is Practical and
Reasonable.
It is agreed by both parties that a noise barrier wall is the most effective
means of reducing highway noise
. Based upon the recommendation of their
sound expert, Complainants request the installation of a noise barrier wall
approximately eighteen feet in height, extending a quarter mile adjacent to the
property. (Tr. II at 112-13)
. In determining a mitigation request, the Board
evaluates several factors including the technical practicability and economic
reasonableness .
In
Roti v. LTD Commodities
PCB 99-19 (July 24, 2003) the complainants
also requested a noise barrier wall
. In Roti, the Board compared the
expenditures of the respondents in purchasing and improving their facility to that
of the noise barriers cost . (Roti at 10-11) The Board found that the respondent
spent $12.6
million to acquire and improve their facility. (Id . at 9) The cost of the
recommended noisewall was estimated between $600,000 to 1
.5 million . (Id . at
11) Based upon this comparison the Board found the wall to be economically
reasonable . (Id .)
For the case at bar, the noisewall cost has been estimated between
$800,000 and $1
.3 million. (Tr. li at 207) The cost of widening and renovating a
portion of the Tri-State Tollway over ten years ago was approximately $500
million . (Tr
. li at 6) The cost of the concrete noisewalls (excluding design costs
& noisewall fabricated from other materials) installed in conjunction with this toll
road project was approximately $11
.3 million. The Tollway's budget for 2005
was $650 million. (Tr. I at 160, Complainants Exhibit 13)
8
The Tollway attempts to argue that the noisewall's cost exceeds their own
policies and per residence guidelines . (Respondent Brief pg
. 31) This argument
fails for two reasons
. First, the Tollway has made alterations to other sections of
the noisewall after its original installation . (Tr
. II at 58, Complainant's Exhibit 14)
These additional noisewall sections reveal that the Tollway has been willing and
able to make modifications to their original noisewall when needed .
Second, the
Tollway's per residence guidelines were unilaterally adopted, and are not
controlled by any statute or court ruling .
The Board should rely on previous rulings regarding the economic factor
.
The proper analysis would be in applying the Roti test to the facts as presented
.
By utilizing this standard, the proposed noise wall should be considered
economically reasonable in relation to the Tollway's overall resources compared
to the cost of the additional noisewall
. Therefore, this factor should be weighed
in Complainants' favor.
IV. THE EXISTING NOISEWALL IS INEFFECTIVE
A.
The Tollway Failed to Abide by its Own Expert
Recommendation
The Tollway continues to stress their voluntary compliance with Federal
Highway Administration regulations, hoping that this adherence would somehow
exempt them from the jurisdiction of the Illinois Pollution Control Board
.
(Respondent Brief pg
. 6) The Tollway employed a consultant to assist them in
planning and designing noisewall in conjunction with the roadway widening
program they initiated in mid-1990s . (Tr
. 1200-1) Following a complete analysis
of the area, the Tollway's consultant recommended that noise mitigation of at
9
least eighteen feet in height,
be installed adjacent to Complainants property
. (Tr
.
II at 45, Complainants Exhibit 17) .
It is not contested by either party that the wall
height in the area is not eighteen feet . (Tr. I at 21)
According to the Tollway's own Traffic Noise Study prepared by
Respondent's sound expert, wall heights in the area range from
a maximum of
thirteen feet stepping down to eight feet . (Respondent's Exhibit 17)
. In their
brief, Respondents argue that the actual wall height differs from
the
recommended height due to the wall designer's inclusion of other factors
including topology, hydrology, and drainage along the road
. (Respondent Brief
pg
. 6) However, only speculative testimony was presented
at the Hearing as to
why the installed noisewall differs substantially from the
recommended height . If
there was a problem with drainage, or an issue as noted above,
the noisewall
could have been installed loser to the roadway, such as the edge
of pavement
.
If maintenance of the drainage area was an issue, the Tollway could
construct an
overlapping noise wall which would allow access and still
mitigate the tollroad
noise reaching Complainants
. The Tollway has previously installed these types
of noisewall alternatives along numerous sections of the tollroad
system.
Clearly, the Tollway could have employed alternative installations
to comply with
their consultants recommendations .
Clearly, the existing noise barrier wall was not constructed
in accordance
with the Tollway's own consultant's recommendation
. As stated in detail in
Complainants Brief, the current noisewall is deficient and
ineffective.
10
CONCLUSION
Complainants have established that the property in question is subjected
to noise from the Tollway exceeding Board numerical standards
. Complainants
also presented uncontested evidence demonstrating the effects of the noise on
their lives
. When applying the facts of this case to the standards set by previous
Board decisions and applicable law, the noise creates a substantial and
unreasonable effect on Complainants
. Combined with other criteria reviewed by
the Board, the Complainants have met their burden in proving that a nuisance
violation clearly exists .
Complainants have established that a numeric noise violation exists
.
Complainants' expert performed a noise test in strict accordance with Board and
ANSI criteria
. As discussed in detail supra, the Tollway noise is the source of
interest . In his report, the Complainants noise expert performed the proper
adjustment for the Tollway noise by applying recognized ANSI criteria
.
Complainants have requested the installation of additional noise barrier
wall to reduce the noise generated from the Tollway
. The additional noisewall is
based upon the recommendations of the Tollway's own noise expert and
consultant used in the noisewall's original installation
. After applying the proper
analysis, the Board should find for the Complainant's in that their request is
reasonable and practical .
Therefore, Complainants respectfully move the Board to find in their favor
and order the Tollway to install the requested noisewall
.
11
Respectfully submitted,n
Scott Dworschak
J tvO, &s
Attorney for Complainants
1343 North Wells
Chicago, Illinois 60610
312-944-8200
12
CERTIFICATE OF SERVICE
I, Scott Dworschak, an attorney, hereby certify that on July 31, 2006, I caused a
copy of the attached Complainant's Reply Brief to be served by U .S. Mail,
properly addressed and postage affixed, on the following parties :
Carol Webb
Hearing Officer
Illinois Pollution Control Board
1021 N . Grand Avenue
P.O Box 19274
Springfield, Illinois
62794
Victor Azar
Special Ass't Att. General
Illinois Tollway
2700 Ogden Avenue
Downers Grove, Illinois
60515
i
Scott Dwors-c ak
