37—301

as he had advised Andrews at the compliance conference (R.33—34).
37—302

ILLINOIS POLLUTION CONTROL BOARD

February

7,

1980

ENVIRONMENTAL PROTECTION AGENCY,

)

Complainant,

PCB 79~4

EVERGREEN BATH & TENNIS,

 INC.,

)

Respondent.

OPINION AND ORDER OF THE BOARD

 (by Mr. Goodman):

On January 10,

 1979 the Illinois Environmental Protection

Agency (Agency)

 filed a complaint against Evergreen Bath

&

Tennis,

 Inc.

 (Evergreen) alleging that Evergreen violated

Rule

202 of the Board’s Noise Regulations by causing or allowing

sound emissions from its facility to Class A receiving

 land at

least 25 feet away which exceeded those listed in the rule at

the 500,

 1,000,

 2,000,

 4,000, and 8,000 Hertz octave band center

frequencies.

 Said violation would constitute concurrently a

violation of Section 24 of the Environmental Protection Act

 (Act),

Count

II

of the Agency’s complaint similarly alleges a night~

time

violation at all Hertz octave band center frequencies listed

in Rule 203 of the Board’s Noise Regulations except the 31.5 level

frequency.

 Said violation would constitute concurrently a viola~

tion of Section 24 of the Act,

 Count

III

alleges that continued

daily and nightly operation of Evergreen’s air conditioning units

 during the

summer

months caused sound emissions beyond the bounds

of Evergreen’s property so as to cause air pollution and a

con~

sequent violation of Rule 102 of the Board’s Noise Regulations

and Section 24 of the Act,

Evergreen,

 a Delaware corporation,

 is licensed

to

do business

within the State of Illinois; the transactions which constitute

the subject matter of this complaint arose within Cook County,

at

2700

West

 91st Street, Evergreen Park,

 Illinois,

 Hearing

was

held on December 11,

 1979,

 Evergreen owns and operates nine air

conditioners, eight of whIch are 15~tonunits

and

one of which

is

 a 25-ton unit.

 The eight are used for eight tennis courts

and the one is used in a racquetball section of the facility

(R,88; Joint

Ex,1).

 During warm weather the facility is open

from 6:30

a.m.

to

12:30

a.m,

(18

hours)

 (R.13-14)~

37—301

—2—

Evergreen is owned by Ms. Joan Andrews and Mr. John L.

Bartolomeo; Andrews serves as General Manager and Bartolomeo

as President.

 Bartolomeo is an architect by profession (R.13)

and

 has sent communications to the Agency as a representative

of the

 firm

 Bartolomeo and Hansen from October 12,

 1979 through

December 4,

 1979 regarding this case (R.Ex.2).

 In Evergreen’s

November 15,

 1977 letter to the Agency responding to the Agency’s

Major Beam, Jr

•

 ‘5 telephone conversation with Bartolomeo, Ever-

green

had

 identified Bartolomeo as its “Architect/Owner

(R.

Ex.2).

Evergreen received complaints from at least one neighbor-

hood landowner

 (Mr. Almquist) before the Agency on July 19, 1977

notified it of its apparent violation (P.79-80) according to

measurements taken by Ronald Koziol of the Agency on July 12,

1977

 (R.19).

 This letter of violation requested a response

either verifying or denying the apparent violations within 15

days (C.Ex.1).

 The record is devoid of any evidence of such

response.

 On August 17,

 1977 Beam

 by letter requested Ever-

green’s presence at a compliance conference on September 21,

1977, to be confirmed within 10 days, before the Agency would

forward the matter to its Enforcement Division (C.Ex.2).

Evergreen replied on August 19, 1977 stating that it had moved

its largest air conditioning

 unit

 to the roof, that this should

solve the problem,

but

 that they would attend the conference

anyway

(R.53—54;

R.Ex.2).

the

conference,

Andrews

was

informed

Beam

that

moving

the

 unit

did

not

solve

the

problem

because

had

made

subsequent

readings

(R.

 34—35).

 Bartolomeo had Mauthorizedu Andrews to move

the

unit

thinking

would

solve

the

problem;

after

learning

the subsequent readings he called Ream

 and they discussed

shrouds for the units

 (R.65-66).

 Bartolomeo had no technological

basis for deciding that moving the unit to the roof would reduce

the sound emission level

 (R.81—82).

At the conference, compliance methods were discussed

(R.54—55);

 Bean

 suggested Evergreen hire a competent consult-

ant (R.32—34).

 An agreement was made to take readings on

September 27, 1977.

 After receiving the results of these

readings Evergreen

was

 to meet with the Agency to draw up a

compliance plan and schedule, but in the interim Evergreen was

to insulate either the interior walls of the barriers of the

 four units or the metal wall of the building (C.Ex.3).

The

Agency sent the September 27, 1977 reading results to Evergreen

on October 17,

 1977 with a request that Evergreen submit the

compliance schedule, to be incorporated into a formal compliance

agreement, by November 7, 1977

 (C.Ex.4).

 The record shows no

evidence of

such

compliance

schedule.

also

shows

evidence

interim

insulation

agreed

Evergreen.

November

1977

jearn

called

Bartolomeo

 to recommend

that

contact

professional

 acoustical consultant

 (R.37),

as he had advised Andrews at the compliance conference (R.33—34).

37—302

During

this call Bartolomeo identified himself as

an engineer

for Evergreen~s architects,

 Bartolomeo advised that he was

working

on a hooded

structure design;

 Hearn advised lining

the interior with absorptive material; Bartolomeo agreed and

said he would

 “recommend”

 the linings; Bartolomeo

 said more

time

was needed

 for design and fabrication, asking that Evergreen be

given additional time to formulate a compliance plan and schedule

and agreeing to put such request in writing

as

soon as possible

(P,Ex,i),

 Andrews so requested such additional time on November

15,

1977

 (R,Ex,2),

On December

19,

 1977 Bumgarner of the Agency issued a for~

mal Notice of Violation demanding Evergreen respond in writing

to the steps being taken to comply with the violation

 (C,Ex,5),

On

January 10,

 1978 Evergreen responded,

 citing

 (1) Andrews~

August 19,

 1977 letter advising of moving the largest unit;

(2) problems with getting the manufacturer of the units to

assume “responsibility” since it had led Evergreen to believe

the units would meet “all environmental requirements”;

(3)

by

the November

9,

 1977 phone conversation with Hearn,

and

Andrews~letter of November 15,

 1977,

 Evergreen was of the

understanding

 it had “ample” time to

 “experiment” with hoods;

and

(4)

 since Evergreen~scontractor was still working,

at

Evergree&s expense,

 Evergreen wanted to wait until

 a cooling

cycle could occur and allow a complete study of one unit before

completing a

study of

all four units

 (R,Ex,2),

Clatt of the Agency responded on January 18,

 1978 that the

response was insufficient if the words waiting “until

 a cooling

cycle

 meant waiting until warmer weather which could bring

more citizen complaints,

 Clatt notified Evergreen that because

of the insufficiency the Agency will pursue an enforcement action

through the Office of the Attorney General

 (C,Ex,6),

From this point to the date of the complaint in this

action—covering approximately a year~stime—the record is

practically devoid of what occurred relative

to

this matter,

Andrews testified she had been trying to elicit responsibility

and/or assistance from the manufacturer and/or the installer,

each of which

 in turn pointed the finger at the other (R,56~57),

A contractor~sdraft of a shroud in

 late 1977 or early 1978

(R~Ex,6)was thought by Bartolomeo to be an impractical solu~

tion

 since it would require cutting a hole in the roof for

ventilation (P,67-~69),

Until

 late 1978,

 Bartolomeo never sought

out consultants or contractors other than the heating and ven-~

tilation contractor, whom Bartolomeo had never thought of as an

acoustical expert (R,82~83) even though he had relied in part

on that same contractor~srepresentation that the units would

meet environmental regulations (R,62~64, R,Ex,5),

During the harsh Winter of 1978~1979, all five units plus

duct work were destroyed;

 concomitant operational problems

were&t discovered until the

snow had melted

 (R,70),

 However,

37—303

—4—

placing shrouds on the tops of the ducts could have prevented

some of the damage to the ducts, and the storms did not pre—

elude the hiring of an acoustical consultant

 (R,84),

 It was

not until

 a September,

 1979 meeting that Bartolomeo

 felt that

Evergreen would “get some realistic progress”

 from the Agency

(R,72).

 It was not until after this September,

 1979 meeting

with the Attorneys General that Bartolomeo began actively

seeking additional contracting bids (R.Ex,2),

In 1975,

 sound emissions were represented by Evergreen

to be,

 at a 60-dE unit rating,

 40 dB at a distance of 17 feet

and 33 dE at a distance of

50

 feet, these two sites being those

of the nearest neighboring homes

 (R,Ex,5),

 The Agency alleged

sound emissions

 in July and September,

 1977 of between

29

 (8,000

Hertz octave band

 frequency)

 and 58.5

 (500 band)

 in violation of

the daytime

 levels established in Rule

 202, and between 39

 (8,000

band)

and

65

 (63 band)

 in violation of the nighttime levels

established in Rule

 203.

 Allegations were made on the basis of

measuremepts taken at 25 feet or more

 (C,Ex,7—10).

 Under Section

42 of the Act Evergreen is potentially liable for $20,000 for

violations of both Rules 202 and 203, and $3,000 for the three

days during which violations occurred.

Under Section 33(c)

 of the Act, the Board must consider

certain circumstances bearing upon the reasonableness of these

sound emissions,

 The character and degree of injury has been

annoyance to owners and occupiers of Class A land.

 Although there

is no evidence that Evergreen had priority of location,

 which

might tend to support a finding of its suitability to the area

in which it

 is located,

it

 is doubtful that Evergreen’s units,

installed at least after July,

 1975, were in operation before

any of the complaining neighbors had moved into the neighborhood.

However, even assuming Evergreen’s operations had priority of

location,

 there is strong evidence of the technical practicabil-

ity of control methods as well

 as of economic reasonableness.

Bartolomeo knew about the availability of shrouds, of insulating

the units’

 interiors,

 of erecting additional harriers,

 and of

insulating the roof.

 There were many steps either Bartolomeo

or Andrews could have taken subsequent to their being notified

of an alleged violation in 1977 and prior to the institution of

this enforcement action in 1979,

 Lastly, no issue

 is raised

concerning the social and economic value

 of Evergreen as a

tennis club,

The Agency’s readings of September

7,

 1977,

 taken after the

largest unit had been moved to the roof,

 showed continuing

violations.

 However, on September 21,

 1977,

 sound emissions at

the 4,000-band

 level ranged from 34,5—43,0 dB,

 Bartolomeo testified

that noise levels vary with problems incurred with the units

(R,80),

 But there is no evidence in the record that fluctuations

in sound emissions occurred regularly, or that they occurred on the

dates of the Agency measurements,

 The record as a whole

indicates a desire on the part of Evergreen to hold the sellers

and services of their units responsibile

 for their present prob-

lems,

37 304

In their post-hearinq briefs, both Evergreen and the Agency

addressed primarily the issue of whether and in what circum-

stances good faith efforts

 at compliance may preclude the imposi-

tion of any penalty as

not aiding in the enforcement of the Act.

Does the emitter have to actively proceed with

plans for com-

pliance?

 Does

 justifiable reliance on the manufacturer of the

point source negate liability?

 Does the issue of the defense of

good

 faith arise only in the context of a minimal and unsubstan-

tial violation of the Act?

 (See,

 Southern Illinqj~s halt Co.

v,

 PCB,

 60 Ill,2d 204

 (1975);

 EPA v. ~

 cit Foundry Co.,

 2 PCB

719

 (1971); ~~p~Matobn

v.

 EPA,

 1 PCB 441

 (1971); ç~~o

~

v,

 PCB,

22

 Ill.App,3d 489

 (1st Dist..1974),)

Polluters must actively proceed with plans for compliance

when requested to do so by the Agency, or must be prepared to

defend their actions in enforcement complaints.

 Evergreen did

little after Koziol’s letter of July 19, 1977 notifying

 it of

violations until almost ten months after this enforcement action

was filed against it, and these actions were taken by Bartolomeo

and Hansen,

 its architect’s engineers,

 It was aware of possible

solutions but it did little or nothing to institute any of them,

It instead repeatedly and consistently tried to hold the manufac-

turer and/or servicer of the units responsible because of their

representations that the units when installed would meet environ-

mental regulations,

 Reliance by Evergreen on such representations

may be material to a contract made on the basis of such representa-

tions but

 is immaterial

 to demonstrate good faith efforts at

compliance with the Act, the Board’s regulations,

 or the

directives of the Agency.

 Good faith efforts are always material

in mitigation or aggravation and can arise

 in any action for

violations whether they be minimal violations or egregious ones,

The Board finds Evergreen to have been in violation of both

Rules 202 and 203 and therefore in violation of Section 24 of

the Act,

The Board will order Evergreen to cease and desist from viola-

tions on or before June

1,

 1980.

 The Board orders Evergreen to

pay a civil penalty of $750,

 Because Evergreen had from on or

about July 19, 1977 through January 10,

 1979 to cooperate with

the Agency, and because during this period Evergreen had know-

ledge of various possible control

 technologies hut found fault

with every one of them,

 refusing to institute any, payment of

such penalty will aid

 in the enforcement ~f the Act;

 it will

impress upon Evergreen and other emitters that one must choose

and install control technologies within a reasonable time after

being informed of a violation,

1,

 Evergreen Bath

 & Tennis,

 Inc.

 shall

 cease and desist from

violations of Rules

 202 and 203 and Section 24 of the Act

on or before June

1,

 1980;

37—305

2.

 Evergreen Bath

 & Tennis,

 Inc.

 shall pay a penalty of

$750.

 Penalty payment by certified check or money order

payable to the State of Illinois shall be made to:

Fiscal Services Division

Illinois Environmental Protection Agency

2200 Churchill Road

Springfield,

 Illinois

62706

3.

 Evergreen Bath

 & Tennis,

 Inc.

 shall

 devise and

institute a compliance plan in cooperation with

the Illinois Environmental Protection Agency by

June

 1, 1980,

IT IS SO ORDERED.

I, Christan

14.

 Moffett,

 Clerk of the Illinois Pollution

d Order

Control

 Board, hereby certify the

were adopt~~don the

______

 day of

~~_____

 1980 by a

vote of

_______

37—306

trol Board