ILLINOIS POLLUTION CONTROL
BOARD
April
2, 1981
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Complainant,
)
v.
)
PCB
78—299
)
QUINCY FOODS,
INC.,
)
an Illinois corporation,
)
)
Respondent.
BRIAN
E
•
REYNOLDS,
ASSISTANT
ATTORNEY
GENERAL,
APPEARED
ON
BEHALF
OF
THE
CCMPLAINANT.
AWERflNP
AND
McCLAIN,
ATTORNEYS
AT LAW (LUCINA
AWERKAMP,
OF COUNSEL),
APPEARED
ON
BEHALF
OF
THE
RESPONDENT.
OPINION
AND
ORDER
OF
THE
BOARD
(by
N.E.Werner):
This
matter
comes
before
the
Board
on
the
December
4,
1978
Complaint
brought
by
the
Illinois
Environmental
Protection
Agency
(‘Agency).
Count I of the Complaint alleged that, from April
20, 1978
until the date of filing of the Complaint (including,
but
not limited
to, May 8,
1978; May 23, 1978; and August 14,
1978), the Respondent
operated its
grocery
store in such a
manner
as to cause or allow the
emission of
sound
beyond
the
boundaries
of
its
property
so
as
to
unreasonably
interfere
with
the
enjoyment
of
life
and
lawful
activities of persons in proximity to the Respondent’s property in
violation of Rule 102 of thapter 8:
Noise Regulations (‘thapter 8’)
and Section 24 of the Illinois Environmental Protection Act (‘Act’).
Count
II of the Complaint alleged that,
from
May
8, 1978 until
the date of the filing of the Complaint (including,
but
not
limited
to, May 8, .1978; May 23, 1978; and August 14, 1978), the Respondent
caused or allowed the emission of sound to receiving Class A land
(i.e., private residences to the east of the grocery store) in
excess of the allowable octave
band
sound
pressure
levels
(dB)
in
violation of Rule 202 of thapter 8 and Section 24 of the Act.
Count III of the Complaint alleged that, from May
8, 1978 until
the date of filing of the Complaint (including, but not limited to
May 8, 1978; May 23, 1978; and August 14, 1978), the Respondent
caused or allowed the emission of impulsive sound which exceeds the
41—157
allowable dB(A)
levels in violation of
Rule
206 of Chapter
8
and
Section 24 of the Act.
Count IV of the Complaint alleged that,
from May 23,
1978 until
August
14,
1978, the Respondent caused or allowed the emission of
prominent discrete tones from its rooftop compressor unit which
exceeded allowable octave band sound pressure levels in violation of
Rule
207 of Chapter
8 and Section 24 of the Act.
On May 18,
1979, the Agency filed a Motion for Continuance.
On
May 24,
1979, the Board granted the Agency’s motion.
On July 25,
1979,
the Agency
i:iled another Motion for Continuance.
On August
9,
1979,
the Board gi;~inteda continuance of
60 days to allow the parties
to further negotiate and/or prepare for a hearing.
The first hearing
in this case was held on October
5,
1979.
The parties filed their
first Stipulation and Proposal for Settlement on October 11,
1979.
On November 15, 1979, the Board entered an Interim Order which
rejected the proposed settlement agreement because of a questionable
requirement in the Stipulation that the Respondent buy the house of
the complaining neighbor.
In its Interim Order,
it was noted that
“the Board, as a matter of general policy,
is reluctant to he placed
in a position where it is called upon to ratify such a sale of a
residential property.”
A second hearing was held on February 20,
1981.
The parties filed a second Stipulation and Proposal
for Settlement
on March
5,
1981.
The Respondent, Quincy Foods,
Inc.,
is an Illinois corporation
which owns and operates a grocery store
known
as Niemann Foods
located at 2400 Oak Street in Quincy, Adams
County,
Illinois.
The
grocery store, which has been in the neighborhood for a long time,
is located on a busy street near a residential
area.
(1st
R.
10).*
Noise problems first arose when the Respondent built a new store,
adjacent to its existing store, which has one large loading dock
which is located about 20
feet
from the house next door.
(1st
R.
10).
The north end of the loading dock, which is close to Oak Street,
is
used by smaller trucks making deliveries to the store
(such as milk
trucks and bread trucks),
The south end
of
the loading dock is across
from the bedroom and garage areas of a house which was,
at that time,
owned by Mr. and Mrs. Harry
J. Sullivan,
(1st
R.
12;
14).
*The record of the original hearing of October
5,
1979 is
designated as the first record
(“1st
R.”), while the transcript of
the second hearing of February 20,
1981 is referred to as the second
record
(“2nd R.”).
Similarly, the current Stipulation which was
filed on March
5,
1981 is called the second Stipulation (“2nd Stip.”).
41—158
On
November
14, 1977, the
Agency
received
a
complaint
fran
Mr.
Harry
J. Sullivan
(who
resided at 2420 Oak Street, in Quincy,
Illinois) indicating that noise from the loading
dock
(which is
within 20 feet of his house) would interfere with the
enjoyment
and
use of his property.
(1st R. 5—6).
On January 26,
1978 and March 7,
1978, the Agency sent notices of a potential noise pollution problem
at the grocery store to Mr. Richard Niemann, President of Quincy
Foods,
Inc.
After the new grocery store
opened
in March of 1978,
Mr.
Niemann
informed the Agency on March 9, 1978 that he would order
his
store
employees
to
request
that
all
truck
drivers
turn
off
their
truck
engines
and
refrigeration
units
as soon as the trucks pull up
to the loading dock.
On April 20, 1978, an Agency employee, Mr. John Paulauskis,
met
with Mr. Niemann and Mr. Sullivan to discuss the noise problem
at Niemann Foods.
Mr. Niemann agreed to modify the rooftop compressor
unit;
issue stricter instructions to truck drivers to turn off
engines and refrigeration units; to only operate the parking lot
sweeper after 6 A.M.; and to build an acoustic barrier along the
east property line to eliminate noise (unless Mr. Sullivan objected
to this barrier).
On May 8, 1978, Mr. Sullivan objected to the
construction of this acoustic barrier.
On
May
8, 1978 and May 23,
1978, Agency noise surveys revealed
that
the Respondent had exceeded allowable noise levels.
Additionally,
on April 20, 1978 and June
2, 1978, the Agency received complaints
from two other residents
that
noise
from the rooftop compressor
unit
and the early morning idling of truck engines at the loading dock of
the grocery store bothered them.
(1st R.
6).
However, Mr
•
Niemann
has
reported
that
he has received similar complaints when no trucks
were
being
unloaded
and once following a sonic boom.
On
August
14,
1978,
an
Agency
noise
survey
revealed
that
the
construction
of
an
acoustic
barrier
around
the
rooftop
compressor
eliminated
the
violation
of Rule 207 of the Board’s Noise Regulations,
but that violations of Rules 202 and 206 still existed.
Originally, it
was
thought that the building of an acoustic
barrier
wall
between
the
loading
dock
at
Niemann
Foods and
the
Sullivan
residence
would
eliminate
the
remaining
noise
problems.
(1st
R.
6-7).
However,
the
parties
subsequently
ascertained
that
no such barrier wall could be built in the area they had desired
because
of
the
existence
of
a
sewer
line
which was exactly
under
the
property
line
between
Niemann
Foods
and
the
Sullivan
property.
There
also
existed
a
16
foot
sewer
easement
by
the
City
of
Quincy
stating
that
no
permanent
structure
could
be
built
on
the
easement.
(1st.
R.
7).
Thus,
it
was
not
feasible
to build this acoustic
barrier
wall
between
the
two
properties.
(1st
R.
7—8).
At
the
north
end
of
the
loading
dock,
which
is
near
the
street,
there is
now
a sign posted
that
reads,
‘All
truck
drivers
must
turn
off their engines while unloading.’
Agency inspectors have observed
41—159
that the truck drivers do turn off their engines at the north end of
the loading dock, and the parties have agreed to insure that the
truck drivers will continue this practice, especially in the late
evening or early morning hours.
Additionally, employees of Niemann
Foods,
during all hours of the day and night, at the north end of
the loading dock, have been instructed not to aid in the unloading
of trucks unless the engines are turned off,
In the case of the
small vans, bread trucks,
and other delivery vehicles, delivery
people have to be admitted through a locked door and they are not
given admission until their truck engines have been turned off.
(1st
R.
14—15).
Another potential noise problem has been averted
in that the use of the parking lot sweeper has currently been
discontinued.
(1st
R.
13).
At the second hearing, Mr. Richard
H. Niemann testified that
his Company voluntarily purchased the Sullivan property during
late
October or early November of 1979.
(2nd
R.
8-9).
Mr. Niemann also
stated that
a barrier wall along the full length of the rooftop
compressor unit has already been constructed, and he indicated that
he understood that another noise test will be conducted by the Agency
at some future date (perhaps during the summer months when the
compressors are operating at their maximum levels).
(2nd
R.
6—7).
Additionally, Mr. Niemann testified that the Company policy is
to discourage unloading of trucks at the north dock between the
hours of 10.00 P.M. and 7:00 A.M, to avoid undue noise.
(2nd
R.
7).
Although they will try to have as many trucks as possible unload
their cargos at the south dock,
Mr. Niemann pointed out that “there
are different dock heights for different size trucks and that does
create
a problem” because “the south dock
is geared for the taller,
the bigger trucks”.
(2nd R.
7).
Moreover, Mr. Niemann stated that there are signs at both docks,
and “signs posted in all areas” that trucks turn off their engines
when deliveries are being made.
(2nd
R.
7—8).
Verbal
instructions
to the drivers when they come to the docks are also given pertaininq
to the necessity of turning off truck engines.
(2nd
R.
8).
The
proposed settlement agreement provides that the Respondent
admits the allegations charged in the Complaint and agrees to:
(1)
cease and desist from further violations;
(2)
construct an
extension to the present barrier around the rooftop compressor unit
which will extend along the entire north side of the north compressor
unit and be of a surface density sufficient to eliminate any
violation of Rule 202 of Chapter
8;
(3)
cooperate with the Agency
in determining the adequacy of the barrier extension;
(4) “make
all reasonable efforts to schedule trucks to unload at the north
loading dock only between the hours of
7:00 A.M.
and 10:00
P.M.,
and to make all reasonable efforts to schedule those trucks unloading
between the hours of 10:00 P.M.
and 7:00 A.M. to use the south
loading dock when that is available” and
(5)
“require that those
trucks arriving at the north loading dock between the hours of
10:00
P.M. and 7:00 A.M. to
(sic)
continue turning off their engines
41—160
while unloading and to reduce noise occurring during unloading.”
(2nd Stip.
6—7).
Additionally,
the parties believe that no penalty
should be imposed in the present case.
(2nd Stip.
7).
In evaluating this enforcement action and the second proposed
settlement agreement,
the Board has taken into consideration all
the facts and circumstances in light of the specific criteria
delineated in Section 33(c)
of the Illinois Environmental Protection
Act.
The Board
finds the second stipulated agreement acceptable
under Procedural Rule 331 and Section 33(c) of the Act.
The Board
finds that the Respondent,
Quincy Foods,
Inc., has violated Rules
102,
202,
206 and 207 of Chapter 8:
Noise Regulations and Section
24 of
the Act and will order the Respondent to cease and desist from
further violations.
No penalty shall be assessed against the
Respondent.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
It is the Order of the Illinois Pollution Control Board that:
1.
The Respondent,
Quincy
Foods,
Inc., has violated Rules 102,
202,
206 and 207 of Chapter
8:
Noise Regulations and Section
24 of
the Illinois Environmental Protection Act,
2.
The Respondent shall cease and desist from further
violations.
3.
The Respondent shall comply with all the terms and
conditions of the Second Stipulation and Proposal for Settlement
filed on March
5,
1981,
which is incorporated by reference as if
fully set forth herein.
I, Christan L. Moffett,
Clerk of the Illinois Pollution Control
Board, hereby certify that the above Opinion and Order wer~adopted
on the
~
day of
4~J~
,
1981 by a vote of
~f.
Illinois Pollutio:
Board
41—161