ILLINOIS POLLUTION CONTROL BOARD
February 3, 2005
BONITA SAXBURY and RICHARD
SAXBURY,
Complainants,
v.
ARCHER DANIELS MIDLAND, HULL,
ILLINOIS DIVISION,
Respondent.
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PCB 04-79
(Citizens Enforcement - Noise)
BONITA SAXBURY AND RICHARD SAXBURY APPEARED
PRO SE
; and
LEE R. CUNNINGHAM, ARCHER DANIELS MIDLAND COMPANY, APPEARED ON
BEHALF OF THE RESPONDENT.
OPINION AND ORDER OF THE BOARD (by T.E. JOHNSON):
On November 6, 2003, Bonita Saxbury and Richard Saxbury (complainants) filed a
formal noise complaint against Archer Daniels Midland, Hull, Illinois Division (ADM). The
complaint alleges that ADM violated Section 24 of the Illinois Environmental Protection Act
(Act) (415 ILCS 24 (2002)) as well as 35 Ill. Adm. Code 900.102 by emitting noise at a grain
elevator located in Hull, Pike County.
A hearing was held on October 6, 2004, in Pittsfield before Board Hearing Officer Carol
Webb. The complainants filed a post-hearing brief on October 25, 2004. On November 12,
2004, ADM filed its post-hearing brief. The complainants filed an “answer” to ADM’s brief on
November 23, 2004. On September 3, 2004, the parties filed a joint motion for site visit. Both
parties addressed the motion for site visit in their briefs. This opinion and order denies the
motion as unnecessary.
Based on the evidence presented in this proceeding, the Board finds that the noise
emanating from the ADM’s facility in Hull does not unreasonably interfere with the enjoyment
of the complainants’ property.
STATUTORY BACKGROUND
Section 24 of the Act provides:
No person shall emit beyond the boundaries of his property any noise that
unreasonably interferes with the enjoyment of life or with any lawful business or
2
activity, so as to violate any regulation or standard adopted by the Board under
the Act. 415 ILCS 5/24
amended by
P.A. 92-0574, eff. June 26, 2002.
Section 33(c) of the Act provides that:
In making its orders and determinations, the Board shall take into 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. 415 ILCS 5/33(c) (2000)
amended by
P.A.
92-0574, eff. June 26, 2002.
Section 900.101 Definitions
Noise pollution: the emission of sound that unreasonably interferes with the
enjoyment of life or with any lawful business or activity. 35 Ill. Adm. Code
900.101.
BACKGROUND
On November 6, 2003, the complainants filed a formal noise complaint against the
respondents. The complaint concerns noise emanating from fans used at the ADM elevator in
Hull located adjacent to the complainants’ residence (elevator). Hull has a population of
approximately 250 people. Tr. at 60. The elevator is located in the southwest corner of the
town, built to existing railroad tracks. Tr. at 61. ADM uses the elevator for long-term grain
storage. Tr. at 63. The elevator has one full-time employee and adds two to three employees
during harvest. Tr. at 70-71. ADM pays approximately $20,000 per year in property taxes for
the elevator. Tr. at 71. Wheat is brought in during the summer and soybeans in the fall.
Id
.
ADM buys product from the area surrounding Hull.
Id
. Approximately 750,000 to 1,000,000
bushels of grain go through the elevator each year. Tr. at 73.
The temperature of the grain must be kept close to the outside temperature. Tr. at 71.
When the difference in temperature gets too large, aeration fans are used to reduce the
3
difference.
Id
. Each bin has aeration under the floor, usually by means of a perforated tube. Tr.
at 74. Fans are used to bring air through aeration channels and push air up through the grain.
Id
.
Once the air is pushed up to the top by bottom fans, top fans pull the air off the top.
Id
. This
practice is common to any elevator that stores wheat for a long term. Tr. at 75
The complainants first moved into their residence across the street from the already
existing elevator in 1958. Tr. at 13. The complainants’ house is the first house to the east of the
elevator and is approximately 213 feet away from the bins. Tr. at 70. Approximately 150 feet to
the north of a fan is the residence of Robert and Betty Culgrove. Tr. at 70. A drainage ditch runs
on the west side of the elevator. Tr. at 70. South of the elevator, approximately 150 to 200 feet,
is the residence of Walter and Barbara Ward.
Id
. Russell Gill lives approximately 75-80 feet
from the first bin to the west.
Id
. During the 1980s there were several other structures on the
site, including a grain dryer that was sometimes run around the clock. Tr. at 52. ADM
purchased the elevator in 1998. Tr. at 61. At that time, there were two portable top fans used to
draw off the moisture and three bottom fans (one fixed and two portable) that pushed air up to
the bin used for aeration.
Id
. The fixed, stationary bottom fan was used on bin number two.
Id
.
In the 1980s the elevator was owned by Quincy Soybean. Tr. at 60. At that time there were
several more structures around the facility, such as a grain dryer (now out of operation) and a
grind and mix feed operation that has been removed.
Id
. In the fall of 2000, Ms. Saxbury
complained to ADM about the noise.
In response to the complainants’ noise concerns, ADM personnel visited the elevator in
October or November of 2000, identified the fans as the most noticeable source of sound, and
limited fan usage to the hours of 8:00 a.m. to 5:00 p.m. Tr. at 62. ADM also decided to modify
the statutory fan that appeared to be the most significant source of sound by insulating the intake
at a cost of approximately $100. Tr. at 63. In 2002, ADM removed that fan and modified the
bin it served so a quieter, portable fan could be used as needed. Tr. at 64-65. ADM built
enclosures around the two portable bottom fans, insulated them and baffled the air intakes. Tr. at
65-66. The cost for this was approximately $650 plus labor.
Id
. The respondent also replaced
motors in the top portable fans running at 3450 revolutions per minute with motors running at
1750 revolutions per minute.
Id
. This cost approximately $600 plus labor.
Id
.
ADM lengthened the air ducts to some bins in order to limit the placement of the portable
fan to either of two positions using bins as noise barriers. The positions were selected on the
basis of minimizing sound reaching the neighbors. Tr. at 67-68.
In August 2004, the parties completed discovery. A pre-hearing conference was held on
September 24, 2004. This matter proceeded to hearing on October 6, 2004. At hearing, the
complainants called Richard Saxbury, Kent Thompson, G.W. Dimmitt, and Bonita Saxbury. The
complainants produced testimony concerning the noise, but did not offer any noise
measurements. The respondents called Kent Thompson. The complainants offered a set of
photographs of the site as taken from the complainants’ property. The hearing officer accepted
the exhibit into evidence as Exhibit 1.
The Board received four public comments on November 1, 2004. Walter and Barbara
Ward PC 1, Russel K. Gill PC 2, Jeanie Cox PC 3, and Robert and Betty Colgrove PC 4 all
4
submitted comments in favor of ADM.
JOINT MOTION FOR A SITE VISIT
On September 3, 2004, the parties filed a joint motion for site visit. In the motion, the
parties request the Board to conduct a site visit in order to establish a more comprehensive record
in this matter as provided for in 35 Ill. Adm. Code 101.632. Mot. at 1. The parties assert that
they believe that actually hearing the sounds emitted from bin dryer fans at the facility would
place the Board in a much better position to decide this matter than if the Board were to base its
decision solely on the written record.
Id
. On October 7, 2004, the Board reserved ruling on the
motion until after the record has been fully developed at hearing.
ADM renewed the motion for a site visit in its post-hearing brief. In the brief, ADM
asserts that it is concerned that if the Board were to find that no nuisance exists on the basis of
the present record, the complainants might feel that the result was due to their inability to retain a
lawyer and a noise consultant, instead of the fact that no noise nuisance exists. ADM Br. at 5.
ADM feels that if the Board were to visit the site, the complainants would know their case had
been heard. Id.
The complainants also address the motion for a site visit in their reply brief. The
complainants assert that they welcome a site visit, but only if the Board can make certain that
ADM turns the fans on “full force as they do nearly all the time that they do turn them on.”
Reply at 4.
Section 101.632 of the Board’s procedural rules provides,
inter alia
, that the Board may
conduct a site visit to establish a more comprehensive record. 35 Ill. Adm. Code 101.632. The
Board’s decision in this matter is discretionary. After reviewing the record, the Board finds that
a site visit would not assist it in establishing a more comprehensive record. Accordingly, the
motion is denied.
NOISE EMISSIONS TESTIMONY
Mr. Richard Saxbury
Mr. Saxbury resides at 260 W. Miller Street, Hull. He has lived there for approximately
47 years. Tr. at 13.
Mr. Saxbury described the noise as loud and horrendous. Tr. at 7. He stated that the
noise comes right through the house, and that it has changed to where it now sounds like “part jet
and part cement mixer.” Tr. at 7. He testified that when ADM moves the fan up and down the
line “you can still hear it.”
Id
. He testified that there was noise before ADM took over the
elevator, but that the noise got really bad when ADM started using what he refers to as “green
machines,” to pump air into the bottom of the bins – since 2004 or two, three, or four years ago.
Tr. at 7-8. He testified that he has left home several times when the fans were “running bad” and
that it [the noise] also “wakes you up of a morning too, especially upstairs.” Tr. at 9. He notices
the noise more in the evening and afternoon. Tr. at 10.
5
Mr. Saxbury testified that he has never heard the noise before 7:00 a.m. Tr. at 14. He
testified that he has heard the noise two or three times at night over the last three years.
Id
. He
testified that when he gets sound asleep the noise doesn’t wake him up. Tr. at 15.
Mr. Saxbury testified that the fans at the top of the elevator used to be noisier and do not
bother him now. Tr. at 16. He testified that the noise isn’t exactly the same now as it used to be,
but is just as bad. Tr. at 18. He testified that he is able to hold a conversation in his front yard
when the fans are on if he stands close enough and talks loud enough. Tr. at 18-19.
Mr. Kent Thomas
Mr. Thomas is the manager of the elevator at Hull. Tr. at 25. He testified that there used
to be a fan by his office that was moved behind a concrete block building behind the silos, and
that ADM has built what is called a doghouse and insulated fan number 2. Tr. at 27-28. He
testified that from his perspective in the office, which is much closer than the complainants’
house, the insulation has cut the noise. Tr. at 28. He testified that there is noise in the
complainants’ yard but that it is not near like it was. Tr. at 30.
Mr. Thomas testified that he has never had difficulty conversing in a normal manner with
the complainants on their property when the bottom fans were running. Tr. at 81.
Mr. G.W. Dimmitt
Mr. Dimmitt is the manager of ADM’s elevator operation in Quincy. Tr. at 32. He
oversees the county elevator operation, including the Hull Division.
Id
. He has been in his
current position since 1996. Tr. at 59. Prior to that, he ran a county elevator operation in
Missouri for 22 years.
Id
. He testified that the fans are either on or off, and have no additional
controls. Tr. at 35-36, 73. He testified that the ideal situation for ADM would be to turn the fans
on and leave them on 24 hours a day until the grain was at the appropriate temperature. Tr. at
64. Mr. Dimmitt testified that, from his first conversation with Ms. Saxbury in 2000, he made
the decision not to run the fans on weekends. Tr. at 40. He testified that on one occasion in
2000 he was informed by Ms. Saxbury that the fans were running over the weekend. Tr. at 39.
After he talked to Ms. Saxbury, he contacted Mr. Thompson, ascertained that the fans were, in
fact, running and directed him to turn off the fans for the weekend.
Id
. He testified that the fans
have not been run on the weekends or at night since that time. Tr. at 40. He testified that the
elevator was closed on December 24, 2003, and he does not believe the fans were running. Tr. at
38.
Mr. Dimmitt testified that, aside from Ms. Saxbury, nobody else has ever complained
about the noise of the elevator. Tr. at 62. Mr. Dimmitt testified that ADM has taken a number of
actions to lower the sound from the elevators after Ms. Saxbury complained.
Id
. He testified
that the stationary axial fan that was removed in 2002 to alleviate the sound was the loudest fan
at the elevator – louder than the two bottom portable fans that are centrifugal in design. Tr. at
65. Mr. Dimmitt testified that the changes made to the top fans reduced the sound 70 – 80 % so
that one cannot hear it very well at all. Tr. at 66. Mr. Dimmitt described how the elevator is
currently operated as follows. With bins 9, 10, and 11, the fan is positioned back in between
number 11 and flex tubing is run to the ductwork that has been installed. Tr. at 67. Bins 1 and 2
6
have the fan set between the concrete block building (closest to the office) and the silo so the
noise is knocked down.
Id
. With any of the other bins to the west, the fans are positioned as
close as possible to the air duct, but they are to the west.
Id
.
There are now only two positions (designed to minimize noise) that the fans are put in for
the bins closest to the street. Tr. at 68. Mr. Dimmitt testified that this has been really effective in
lowering the noise to the extent that the complainants said they could hear the fan for bins 1 and
2 coming on and off, but didn’t notice it as much when running.
Id
. As to bins 9, 10, and 11 (on
the north side), Mr. Dimmitt testified that the changes have reduced the sound.
Id
. He testified
that the sound is caused not by the engines but by the movement of air. Tr. at 77. He describes
the noise as a high-pitched tone, kind of a whistling sound, like wind blowing through something
– a high-pitched, whistling sound. Tr. at 78.
Mr. Dimmitt testified that before any changes were made (in 2000) he was able to hold
conversations at the road between the elevator and the complainants’ house. Tr. at 68. He
testified that in 2000 such conversations could be held, and that those involved in the
conversation would not have to raise voices or stand close together anymore than they would if a
truck was running or a car driving by. Tr. at 68-69. He testified that the noise level has been
reduced quite a bit since then, and that a normal conversation at the road between two people
standing 10 – 12 feet apart would be possible. Tr. at 69. Mr. Dimmitt testified that at least four
neighbors live the same distance or closer to the elevators than do the complainants. Tr. at 70.
Mr. Dimmitt testified that he is not aware of anything further that ADM could reasonably
do at the elevator to reduce the noise. Tr. at 70.
Ms. Bonita Saxbury
Ms. Saxbury resides at 260 W. Miller Street, Hull. She testified that she moved out of
the area for a long time, but came back to stay in 1993. Tr. at 47. She is 63 years old.
Id
. She
testified that the noise didn’t really bother her until the year 2000. Tr. at 49. She testified that
Mr. Thompson came over to her house when the fans were running and said he could see there
would be a problem and that they might have to buy the complainants out to save his retirement.
Tr. at 42-43. She testified that Mr. Dimmitt came into their yard, stood by the open living room
window and said, “it’s hitting them head on.” Tr. at 44. Ms. Saxbury testified that Mr. Dimmitt
and an ADM attorney named Mr. Smith have been rude to her.
Id
. She testified that she
compiled a calendar of dates and times that the elevator fans were running loudly but has lost the
calendar. Tr. at 44-45. Ms. Saxbury agreed that before ADM took over the elevator there was
noise. Tr.at 45.
Ms. Saxbury testified that they have had to leave the house many times during the day
because of the noise, just to go out and stay away for three or four hours. Tr. at 45, 51. She
testified that she left the house the week before the hearing, but cannot remember the actual date.
Tr. at 51. Ms. Saxbury cannot estimate how many times she has left her house since January 1,
2004, but thinks it is probably more than ten times. Tr. at 52. She agrees that the elevator has
social and economic value and is properly located.
Id
. She believes that ADM can manipulate
the noise levels.
Id
. Ms. Saxbury testified that the noise has been bad the last couple of weeks
7
because there are some other machines running as well as the fans, but that the fans are the
primary problem. Tr. at 45-46. She testified that she could hear the fan behind the office turn on
and off, but that it is not a very big problem. Tr. at 49. She testified that the top fans are not a
problem. Tr. at 50. She testified that the fan with the long tube has changed tones but is still a
very loud noise. Tr. at 49.
Ms. Saxbury testified that she started looking into this and contacting people on
September 21, 2000. Tr. at 46. She has contacted the Agency.
Id
.
She testified that she is losing hearing each time she goes for a hearing test – that the high
sounds are going bad. Tr. at 47. She also testified that the noise makes her very nervous, but
that she doesn’t have any ailments per se except that she thinks if she listened to the noise long
enough she might go over the edge.
Id
. Ms. Saxbury does not have any evidence that her
hearing loss is related to the noise from the elevator. Tr. at 48.
ARGUMENT
Complainants’ Brief
The complainants assert that the noise from the fans has violated nuisance standards.
They contend that the noise comes from a fan used to dry grain that comes directly at them.
Com. Br. at 1. The complainants assert that Mr. Dimmitt said the noise came directly at them
but denied saying it at hearing.
Id
. The complainants also contend that Mr. Dimmitt falsely
stated at the hearing that he had not been in the complainants’ yard.
Id
.
The complainants contend that after ADM attempted to fix the problem, the sound
coming from the fan is different, but just as loud and obnoxious. Com. Br. at 1. The
complainants assert that Mr. Thompson told them he would have to buy their house but later
denied making that statement at hearing.
Id
. The complainants contend that ADM must be
wrong in saying there is only an on and off switch to the fan because the noise is fairly low at
times and so loud at others.
Id
. The complainants argue that there was noise at the elevator
before ADM took possession, but that they had never had to leave their home prior to that time.
Id
.
The complainants assert that as they were preparing their brief on October 16, 2004, the
fan was running so high and loud that even with all the windows and doors closed the noise was
just unbearable. Com. Br. at 1. The complainants argue that if there were no noise problem at
the elevator, ADM would not spend time and money trying to fix a problem that didn’t exist.
Id
.
The complainants contend that the noise has been detrimental to their well being, mental,
emotional, and physical health. Com. Br. at 1. They conclude that ADM should not be above
the law, and that ordinary citizens should not be intimidated and overridden by large companies
that have attorneys on retainer.
Id
.
ADM’s Brief
8
ADM asserts that it did not ignore the initial complaint, but made a number of changes to
their operation to address the concerns. ADM Br. at 2. Specifically, ADM limited the hours of
the fan usage to normal weekday business hours, eliminated the fan that produced the most
sound, virtually eliminated any sound from the top fans, and greatly reduced the sound from the
now-insulated and baffled portable fan in one of the positions to the extent that the complainants
can only hear it being turned on and off.
Id
. ADM asserts that even when placed in the other
position, the sound produced by the bottom fan has been reduced through insulation and baffling,
and by its placement behind one of the bins.
Id
.
ADM asserts that the only persons alleging interference in their lives due to the sounds
from the elevator are the complainants. ADM Br. at 3. ADM further contends that it is only Ms.
Saxbury who truly feels that the sound is an interference because, except for having signed the
complaint, Mr. Saxbury has never complained to ADM, and does not hear very well and wears a
hearing aid.
Id
.
ADM asserts that the Board must determine if Ms. Saxbury’s reaction to the elevator
sounds is due to an aggravation that has gotten out of hand or whether the sound truly constitutes
an interference. ADM Br. at 3. However, ADM asserts that even if the Board finds the noise an
interference, it must conclude that such interference is not unreasonable based on an analysis of
the Section 33(c) factors. ADM Br. at 4.
ADM contends that the character and degree of injury is minor in that the fans are rarely
used outside of the hours of 8:00 a.m. and 5:00 p.m. on weekdays, and used little, if at all, during
much of the year. ADM Br. at 4. ADM asserts that significant fan usage is limited to July
through November, and the amount of usage is generally a couple of days per week in the
summer and early fall months, increasing to as much as four or five days per week as winter
arrives.
Id
. ADM also notes that on the days the fans are used, they are often not used during
the entire working day.
Id
.
ADM asserts that only the complainants have complained of any interference with their
enjoyment of life despite the fact that four other homes are as close or closer to the elevator than
the complainants. ADM Br. at 4. ADM notes that four of the neighbors have filed public
comments stating they are not bothered by the sound.
Id
.
ADM contends that both parties agree the elevator has significant social and economic
value and that the fans are a necessary part of the operation. ADM Br. at 4. ADM argues that
the elevator is suitable to the area in which it is located and has priority of location. ADM Br. at
5. ADM contends it is reasonable to conclude, as Mr. Dimmit testified, that the sounds were
louder in the 1980s than they are today. ADM asserts that in the public comments, the other
neighbors state the sounds from the elevator are either less noticeable or no more noticeable than
they were when they moved in.
Id
.
ADM asserts that the efforts it has made to minimize the impact from the facility have
been effective, and that the impact of the sound is much less than it was when the complainants
initially complained. ADM Br. at 4. ADM contends that it is not economically reasonable to
reduce the sound emission further and that the record contains no evidence of any means of
9
doing so.
Id
. ADM contends the sound the complainants hear is not from the fan itself, but from
the movement of air through ducting from the fans to and through the bins.
Id
. The air, ADM
argues, must go to each of the bins making it very difficult and expensive to block, while still
allowing free movement around the property.
Id
.
ADM asserts that the elevator has always been in compliance, but has improved its
compliance during its tenure. ADM Br. at 4. ADM contends it has spent approximately $5,600
and placed self-imposed restrictions on its operating hours to reduce the impact of the sound, and
that the Board should conclude that this factor supports a finding that any interference is not
unreasonable.
Id
.
Complainant’s’ Reply Brief
The complainants assert that both of them were equally involved in the complaint and all
the proceedings, not just Ms. Saxbury, as ADM has argued. Reply at 1. The complainants
acknowledge that Mr. Saxbury wears a hearing aid, but asserts he is not totally deaf and can pick
up vibrations; vibrations that are plentiful at the Hull elevator.
Id
. The complainants assert that
the neighbors who filed public comments did not even have the intestinal fortitude to go to
hearing, and the comments are otherwise questionable because all of them have friends that are
farmers so their comments are tainted, being prejudicial. Reply at 2.
The complainants assert that if noise pollution bothers one person and affects his
lifestyle and enjoyment of life, it is all that is necessary to file a complaint and get due process
and the right conclusion. Reply at 2. The complainants assert that Mr. Dimmitt might have said
that the noise at the elevator was greater in the 1980s but that he told some untruths at hearing.
Reply at 3. The complainants conclude with a quote from Dr. William H. Stewart, former U.S.
Attorney General: “Calling noise a nuisance is like calling smog an inconvenience. Noise must
be considered a hazard to the health of people everywhere.” Reply at 4.
DISCUSSION
The complainants have alleged that respondent violated Section 24 of the Act and Section
900.102 of the Board regulations. 35 Ill. Adm. Code 900.102; 415 ILCS 5/24 (2002). Together
these provisions constitute a prohibition against nuisance noise pollution. Charter Hall
Homeowner’s Association and Jeff Cohen v. Overland Transportation System, Inc., and D. P.
Cartage, Inc., PCB 98-81 (Oct. 1, 1998), citing to Zivoli v. Prospect Dive and Sport Shop, Ltd.,
PCB 89-205, slip op. at 8 (Mar. 14, 1991). In determining whether noise emissions rise to the
level of a nuisance noise pollution violation, the Board performs a two-step inquiry. First, the
Board determines whether or not the noise constitutes an interference in the enjoyment of
complainants’ lives and second, considering the factors enunciated in Section 33(c) of the Act,
the Board determines whether or not the interference is unreasonable. Charter Hall, PCB 98-81,
slip op. at 19-21. The following discussion will address first whether complainants have
established that the noise emanating from the fans constitutes an interference with the enjoyment
of life and second, whether the noise emissions constitute an unreasonable interference in their
lives.
10
Interference With Enjoyment of Life
The Board has stated that if there is no interference there can be no nuisance noise
violation. Zivoli, PCB 89-205, slip op. at 9. Accordingly the Board must first determine
whether the sounds have interfered with the enjoyment of life. Furlan v. University of Illinois
School of Medicine, PCB 93-15, slip op. at 4 (Oct. 3, 1996). The Board has held that the
following disturbances constitute interference: sleeplessness from nightclub noise (Manarchy v.
JJJ Associates, Inc., PCB 95-73, slip op. at 10 (July 18, 1996); noise interfering with sleep and
use of yard (Hoffman v. Columbia, PCB 94-146), slip op. at 5-6, 17 (Oct. 17, 1996); and
trucking operation noise impacting sleep, watching television and conversing (Thomas v. Carry
Companies of Illinois, PCB 91-195, slip op. at 13-15 (Aug. 5, 1993).
The complainants testified that the noise from the elevators has been detrimental to their
well being, mental, emotional, and physical health. The complainants testified that they have
had to leave the house as a result of the noise. Ms. Saxbury cannot estimate how many times she
has left her house since January 1, 2004, but thinks it is probably more than ten times. Mr.
Saxbury has testified that he has left home several times and has been awakened in the morning
when the fans were “running bad.” Tr. at 9. However, he also testified that when he is sound
asleep, the noise does not wake him. Tr. at 15.
In addition, Ms. Saxbury testified that the noise makes her very nervous, but that she
doesn’t have any ailments
per se
, except that she thinks if she listened to it long enough she
might “go over the edge.” Ms. Saxbury has hearing loss, but does not have any evidence that it
is related to the noise from the elevator.
Discussion
As previously stated the Board has found that if there is no interference, there can be no
nuisance noise violation. Zivoli, slip op. at 9. Therefore, the first step in the Board’s inquiry
about a nuisance noise violation is whether or not the sounds have interfered with the enjoyment
of life. Furlan, PCB 93-15, slip op. at 4. Only if there has been an interference does the Board
proceed to the second inquiry of whether the noise unreasonably interferes with the enjoyment of
life.
The Board has determined that noise interfering with sleep and use of yard (Hoffman)
and trucking operation noise impacting sleep, watching television and conversing (Thomas v.
Carry Companies of Illinois) does constitute an interference. Here, the noise impacts the use of
the complainants’ property, causing them to leave the house on a number of occasions.
Although there is no evidence that the complainants’ sleep has been impacted, their lives
have been disrupted as a result of the noise. The Board finds that the noise emissions from the
elevator interfere with the complainants’ enjoyment of life. Accordingly, the Board must
consider if the emissions unreasonably interfere with the complainants’ enjoyment of life.
Unreasonable Interference, Section 33(c) Factors
11
The remaining issue is whether the noise from the elevator fans has unreasonably
interfered with the complainants’ enjoyment of life. Whether an interference is unreasonable is
determined by examining the factors set forth in Section 33(c) of the Act. The Board need not
find against respondent on each factor to find a violation.
See
Wells Manufacturing Company v.
PCB, 73 Ill. 2d 226, 233, 383 N.E.2d 148, 151 (1978) (Wells Manufacturing); Processing and
Books, Inc. v. PCB, 64 Ill. 2d 68, 75-77, 351 N.E.2d 865, 869 (1976); Incinerator, Inc. v. PCB,
59 Ill. 2d 290, 296, 319 N.E.2d 794, 797 (1974). The Board will now consider each of the
Section 33(c) factors.
The Character and Degree of Injury to, or Interference With the Protection of the Health,
General Welfare and Physical Property of the People
In assessing the character and degree of interference that the noise emissions from the
fans have caused, the standard applied by the Board is whether the noise “substantially and
frequently interferes” with the enjoyment of life, “beyond minor or trifling annoyance or
discomfort.” Charter Hall, PCB 98-81, slip op. at 21, citing Kvatsak v. St. Michael’s Lutheran
Church, PCB 89-182, slip op. at 9 (Aug. 30, 1990).
As previously indicated, the complainants assert that the noise from the fan unreasonably
interferes with the enjoyment of their lives and property. They specifically point to having to
leave the house. The complainants highlight that the noise was high-pitched, shrill and constant,
and may be different after the changes made by ADM, but is just as loud and obnoxious. Comp.
Br. at 1.
Discussion
In determining the character and degree of injury caused by the noise emissions from the
plant, the Board must examine whether the interference was substantial and frequent.
The complainants maintain that the noise is such an interference that they have had to
leave their house – at least ten times during 2004. The record contains conflicting testimony on
the character of the noise. Mr. Saxbury has testified that he is able to hold a conversation in his
front yard when the fans are on, if he stands close enough and talks loud enough. However, Mr.
Dimmitt testified that a normal conversation at the road between two people standing 10 – 12
feet apart would be possible. Mr. Thomas testified he has never had difficulty conversing in a
normal manner with the complainants on their property when the bottom fans were running. He
testified that there is noise in the complainants’ yard but that it is “not near like it was” prior to
the work performed by ADM to lessen the sound. Further, the residents of the four homes in the
immediate vicinity of the elevator – all approximately as close or closer than the complainants –
have not complained of interference with their lives.
There is considerable evidence, in the form of testimony from ADM employees and the
public comments of local residents, that the noise from the elevators did not generally interfere
with enjoyment of life, lawful business or activities in the noise-impacted community as a whole.
The Board addressed a similar situation in Sweda v. Outboard Marine Corporation and the City
of Waukegan, PCB 99-38 (Aug. 5, 1999). In Sweda, the Board stated that there comes a point at
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which the evidence establishes that, whatever the complainants’ subjective experience, there is
no unreasonable interference when the noise source is evaluated objectively. Sweda, PCB 99-38,
slip op. at 12.
See also
Scarpino v. Henry Pratt Co., PCB 96-110 (Apr. 3, 1997) (finding no
support in the record for substantial and frequent interference where the Board had conflicting
evidence regarding the character and degree of interference). The Board finds that this point has
been reached in the instant case. A review of the record indicates that the people in the affected
area other than the complainants are not significantly bothered by the noise from the elevator.
The Board finds that this factor supports a finding that the interference experienced by the
complainants is not unreasonable, and weighs it in favor of ADM.
The Social and Economic Value of the Pollution Source
In assessing this factor, the Illinois Supreme Court has looked to the number of persons
that the respondent employed and whether respondent is an important supplier to a particular
market. Wells Manufacturing, 73 Ill. 2d at 235-36. The Board has similarly looked to such
factors as the number of employees at a facility and the total wages and taxes that a respondent
paid. Charter Hall, PCB 98-81, slip. op. at 23-24.
The parties agree that the elevator has social and economic value. Tr. at 52; ADM Br. at
4.
Discussion
The record shows that the elevator has one full-time employee, brings in two to three
employees during harvest, and that ADM pays approximately $20,000 per year in property taxes
for the elevator. Tr. at 70-71. In addition, ADM buys product from the area surrounding Hull,
and approximately 750,000 to 1,000,000 bushels of grain go through the elevator each year. The
Board finds that the elevator does have significant social and economic value to the community,
and weighs this factor in favor of the ADM.
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
Suitability of location is not the only factor the Board examines under this factor. Roti v.
LTD Commodities, PCB 99-19, slip op. at 26 (Feb. 15, 2001. The Board also looks to priority of
location; however industry cannot rely on priority of location as a mitigating factor if emissions
are substantially increased. Roti, PCB 99-19, slip op. at 27, citing Wells Manufacturing 73 Ill.
2d 237. Thus, the Board examines suitability of the location of the source, priority of location
and whether emissions have increased when weighing this factor.
The elevator is located in Hull, a town without zoning laws. Tr. at 76. The elevator was
built, in part, because of its location next to existing railroad tracks. Tr. at 61. The complainants
initially purchased their property, next to the already existing elevator, in 1958. Tr. at 13. Ms.
Saxbury moved back into the house in 1993. ADM did not purchase the elevator until 1998. Tr.
at 61.
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Discussion
When weighing this factor, the Board must consider the suitability of the pollution source
to its location, including priority of location. The Hull elevator was in place prior to the
complainants’ moving into their residence in 1958. The record contains testimony that the
emissions from the elevator were louder in the 1980s than in 1998 when the elevator was
purchased by ADM, and the complainants have testified that the emissions increased after ADM
purchased the elevator in 1998.
The Board cannot ascertain from a review of the record whether or not emissions from
the elevator have substantially increased so as to eradicate ADM’s priority of location.
However, priority of location, a component of which is whether or not the emissions have
substantially increased, is only a part of the whether the pollution source is suitable to its
location. Although the record is unclear in regards to an increase in emissions, the complainants
do not dispute that the elevator is properly located. The record contains no evidence that the
elevator is not suitable to the area. Further, at hearing Ms. Saxbury agreed that the elevator was
located properly. Tr. at 52. Accordingly, the Board weighs this factor in favor of ADM.
The Technical Practicability and Economic Reasonableness of Reducing or Eliminating the
Emissions, Discharges or Deposits Resulting from Such Pollution Source
In considering this factor, the Board must determine whether technically practicable and
economically reasonable means of reducing or eliminating noise emissions from the elevator are
readily available to ADM.
See
Charter Hall, PCB 98-81, slip op. at 24.
Discussion
The record shows that ADM has made a number of efforts to reduce the noise from the
fans. The complainants have not proffered any additional methods of reducing or eliminating the
noise. The only evidence on the record regarding this factor was offered by ADM manager Mr.
Dimmitt who testified that he is not aware of anything further that ADM could reasonably do at
the elevator to reduce the noise. Tr. at 70.
The Board finds that the record does not indicate any technically practicable or
economically reasonable remedies to further address the noise from the fans. Accordingly, this
factor is weighed in favor of ADM.
Any Subsequent Compliance
Under this factor, the Board analyzes the respondent’s attempts to address the emissions
that have led to the alleged violations of the Act or the Board’s regulations. The complainants do
not dispute that ADM has attempted to reduce the noise emissions, and agree that ADM has
taken steps that have drastically reduced the noise from the top fans. However, the complainants
maintain that the noise from the bottom fans is still an interference.
The record shows that ADM has engaged in substantial remedial efforts to alleviate the
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noise. After the complainants notified ADM about the noise complaint, ADM made significant
efforts to reduce the noise, including limiting fan usage to the hours of 8:00 a.m. to 5:00 p.m.
even though it is preferable for temperature control purposes to run the fans 24 hours a day when
necessary. Tr. at 62. ADM also modified the stationary fan that appeared to be the most
significant source of sound by insulating the intake, ultimately removing that fan and modifying
the bin it served, so a quieter, portable fan could be used as needed; built insulated enclosures
around the two portable bottom fans; baffled the air intakes, and replaced the motors in the top
portable fans. Tr. at 62-66. The record indicates that ADM spent approximately $5,600 trying to
resolve the noise issue.
The Board finds that the respondent made a considerable effort to alleviate noise
emissions from the elevator, and weighs this factor in favor of ADM.
CONCLUSION
After evaluating the Section 33(c) factors, the Board finds that the interference caused by
ADM’s use of fans to maintain a proper temperature at their Hull elevator is not unreasonable
within the meaning of Section 24 of the Act. In this case, the evidence establishes that, whatever
the complainants’ subjective experience, there is no unreasonable interference when the noise
source is evaluated objectively.
See
Sweda, PCB 99-38, slip op. at 12. While the Board does not
doubt the complainants’ testimony that the noise interferes with their enjoyment of their life and
property, ADM has expended considerable effort and funds to ameliorate the noise. Based on
the record before the Board, the Board finds that ADM does not violate Section 24 of the Act
and 35 Ill. Adm. Code 900.102. The Board finds that sound emanating from the elevator’s fans
did not unreasonably interfere with the complainants’ enjoyment of their lives and property.
This opinion constitutes the Board’s finding of fact and conclusions of law.
The Board dismisses the case and closes the docket.
IT IS SO ORDERED.
Section 41(a) of the Environmental Protection Act provides that final Board orders may
be appealed directly to the Illinois Appellate Court within 35 days after the Board serves the
order. 415 ILCS 5/41(a) (2002);
see also
35 Ill. Adm. Code 101.300(d)(2), 101.906, 102.706.
Illinois Supreme Court Rule 335 establishes filing requirements that apply when the Illinois
Appellate Court, by statute, directly reviews administrative orders. 172 Ill. 2d R. 335. The
Board’s procedural rules provide that motions for the Board to reconsider or modify its final
orders may be filed with the Board within 35 days after the order is received. 35 Ill. Adm. Code
101.520;
see also
35 Ill. Adm. Code 101.902, 102.700, 102.702.
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I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the above
opinion and order was adopted on February 3, 2005, by a vote of 4-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
