ILLINOIS POLLUTION CONTROL BOARD
April
8,
1993
SUSAN A.
CURTIS AND
)
MARCY DIESING,
)
Complainants,
)
and
CITY OF CRYSTAL LAKE,
)
)
Intervening—Complainant,
)
V.
)
PCB 91—30
(Enforcement)
VILLAGE OF LAKE IN THE HILLS
)
)
Intervening—Respondent,
and
)
MATERIAL SERVICE CORPORATION
)
Respondent.
)
)
MATERIAL SERVICE CORPORATION,
)
Cross—Complainant,
)
v.
)
CITY OF CRYSTAL LAKE,
)
)
Cross—Respondent.
SUSAN A.
CURTIS AND MARCY DIESING APPEARED PRO SE;
MR. MICHAEL
E. COPPEDGE OF COWLIN, UNGVARSKY,
AND
CURRAN
APPEARED
ON BEHALF OF THE CITY OF CRYSTAL LAKE;
MR. RICHARD FLOOD OF ZUKOWSKI, ROGERS,
FLOOD, AND MCARDLE
APPEARED
ON
BEHALF
OF
THE
VILLAGE
OF
LAKE
IN THE HILLS;
AND
MR.
RICHARD
R.
ELLEDGE
AND
MR.
JEFFREY
M.
FRIEDMAN
OF
GOULD
AND
RATNER
APPEARED
ON
BEHALF
OF
MATERIAL
SERVICE
CORPORATION.
Opinion
and
Order
of
the
Board
(by
3.
C.
Marlin):
This
matter
is
before
the
Board
on
a
formal
complaint
filed
February
20,
1991,
by
Susan
Curtis
and
Marcy
Diesing
~fl
L~.
-0003
2
(complainants) against Material Service Corporation
(MSC).
The
complainants filed an amended complaint on December 27,
1991.
The amended complaint alleges that MSC’s mining operations
in
McHenry County interfere with the complainants’ use of their
property.
The amended complaint alleges that the noise and dust
emissions violate 35
Ill. Adm. Code 900.102 and 901.102 and
Sections 9(a),
23 and 24 of the Environmental Protection Act
(Act).
(415 ILCS 5/9(a),
5/23,
and 5/24
(1992).)
(Comp.
at 2.)
On July 26,
1991, the City of Crystal Lake
(City)
petitioned
to intervene as a complainant, and the request was granted by the
Hearing Officer on July 29,
1991.
On October 30,
1991,
the
Village of Lake in the Hills
(Village) filed a petition to
intervene as
a respondent.
On November
1,
1991, MSC filed a
cross complaint against the City.
The petition was granted and
the cross complaint was accepted for hearing by Board Order on
November
7,
1991.
Public hearings in this case were held on
December 17 and 18,
1991, January 15,
1992,
and February 3,
1992,
which members of the public attended.1
The complainants filed a
post—hearing brief on March 10,
1992,
and a reply brief in
response to the Village’s brief on March 23,
1992.
MSC filed a
post-hearing brief on March 12,
1992,
and a reply brief on March
18,
1992.
The Village filed a brief on March 10,
1992,
and the
City filed a response to the post-hearing brief of NSC and the
Village on March 18,
1992.
On November 20,
1992, MSC filed a motion to dismiss this
case.
On November 30,
1992, the Village filed a response to
NSC’S motion to dismiss stating that it had no objection to
dismissal.
On December 1,
1992,
the complainants filed a
response in opposition to MSC’s motion to dismiss.
The Board
denied MSC’s motion in a December 17,
1992,
order.
(Curtis and
Diesina
V.
Material Service Corporation et.
al.
(December 17,
1992)
—
PCB
,
PCB 91—30.)
PRELIMINARY MATTERS
The complainants filed an amended complaint on December 27,
1991.
At hearing, the complainants moved to amend their
complaint in order to allege further violations of the Act and
the Code.
(Tr. at 9.)
There were no objections to the motion.
(Tr. at 275.)
Therefore, the Board, pursuant to 35 Ill. Adm.
Code 103.210 (a), grants the complainants motion to file an
amended complaint.
‘The transcript pages in this case are numbered sequentially
beginning with the hearing on December 17,
1991, and continuing
through the hearing on February
3,
1992.
The transcript citation
in this opinion will be
(Tr. at
.).
01
L~.
J -QQO~
3
On February 10,
1992, MSC filed an appeal of the Hearing
Officer’s ruling to bar the testimony of George W. Kamperman and
made an offer of proof.
The Board has reviewed the arguments
made at hearing and the motion and sees no reason to overrule the
Hearing Officer on this matter.
Therefore, the ruling of the
Hearing Officer to bar the testimony of George W. Kamperman is
upheld.
THE COMPLAINT
The amended complaint alleges that MSC’s mining activity is
causing both noise and air pollution.
The amended complaint
charges that the mining interferes with the complainants’ use of
their property in several ways.
The amended complaint charges
that the noise and dust emissions violate 35 Ill. Adm. Code
900.101 and 900.102 and Sections 9(a),
23 and 24 of the Act.
(Comp. at 2.)
Complainants maintain that the equipment used by
MSC to mine disturbs their sleep even when their windows are
closed.
(Comp. at 3.)
They also assert that the mining keeps
them and their families from enjoying outdoor activities around
their homes, and disrupts normal family activities such as
reading or studying.
(Camp.
at 3.)
The complainants allege that the noise causes stress and
that neighborhood parents are concerned for the emotional well-
being of their children.
(Comp.
at 3.)
The
complainants also
assert that the dust and dirt created by the mining operation
causes air pollution which pollutes their homes even when the
doors and windows are kept closed.
(Camp. at 3.)
THE CROSS-COMPLAINT
MSC’S cross-complaint against the City alleges that the City
has failed to honor a settlement agreement between itself, the
Village, and ?YISC.
The complaint alleges that the City has failed
to plant grass and trees or shrubs on the berm constructed by
MSC.
(Cross-Comp.
at 5.)
MSC alleges that any dust resulting in
air pollution is a result of the berm not being planted and that
noise from the mining would be deflected if the berm were
properly planted.
(Cross—Comp. at 5.)
MSC argues that if the
Board finds that noise or air pollution is occurring from any
source, that the Board should direct the City to immediately
plant the berm.
(Cross-Comp. at 6.)
BACKGROUND
The complainants are home owners in the Coventry Subdivision
(Subdivision)
of the City of Crystal Lake in McHenry County,
Illinois.
The MSC mining operation in question is located in the
Village of Lake in the Hills on land known as the Cohn parcel.
The Cohn parcel is directly south of the Subdivision.
The Cohn
parcel, beginning at its Western most border, runs east from near
01
L~
I
-0005
4
the City sewage treatment plant around four thousand feet to Pyot
Road.
The subdivision is the Cohn parcel’s northern boundary;
from there, the parcel runs south approximately thirteen hundred
feet.
(Tr. at 408.)
The Cohn parcel and the Subdivision are
separated by a berm which runs along most of the border between
the two properties.
Located south of the Cohn parcel
is the
Crystal Lake airport
(Tr. at 408)
and located southeast of the
subdivision is
a mining operation owned by Vulcan Mining Company.
(Tr.
at 696 and Resp.
Exh.
2.)
MSC is a mining company.
MSC owns a large mining yard which
includes the Cohn parcel.
MSC acquired the Cohn parcel in 1956,
and has mined it since July,
1990.
(Tr.
at 409.)
At the time of
the hearing, four major activities took place in the yard owned
by MSC:
extraction, maintenance, processing, and shipping.
(Tr.
at 416.)
It is the noise and dust created by the extraction
which is the subject of this complaint.
The equipment used in
extraction includes scrapers, dozers, front—end loaders, field
conveyor systems,
feeders, and drag lines.
(Tr.
at 420.)
In addition to the machinery, eight lights are used on the
Cohn parcel to illuminate the work area after dark.
The closest
light to the Subdivision
is estimated to be not less than five
hundred feet from the subdivision.
(Tr. at 431.)
However, the
lights are not a subject of this complaint and the Board will not
consider the lights any further.
NSC testified that its normal mining operations take place
on the Cohn parcel from 6:00 A.M.— 12:00 midnight
(Tr. at 451.)
Before the summer of 1991,
late night maintenance or mining took
place after midnight.
MSC testified that since August of 1991,
no such work has taken place on the property after midnight.
(Tr. at 513.)
The complainants ask the Board to order the respondents to
stop polluting the air with dirt and dust and confine the noise
of their mining operation completely within their boundaries.
The complainants ask that this be done by installation of heavy
duty mufflers,
elimination of back—up beepers, enclosing
conveyors, and watering of the work area.
The complainants also
ask the Board to restrict MSC’s mining hours and to order MSC to
cease and desist mining at any time on Sunday.
(Comp. at 4.)
WITNESSES
In attempting to prove that the noise from NSC interferes
unreasonably with their enjoyment of life and lawful activity,
complainants Diesing and Curtis gave examples and called
witnesses to testify about how the noise was affecting their
lives.
With the exception of Gregory Zak, the Illinois
Environmental Protection Agency’s
(Agency) noise technical
advisor, all witnesses called by the complainants reside in the
0R10006
5
Subdivision.
The following is
a list of complainants’ witnesses
in order of appearance and the witnesses occupations
(if
identified at hearing):
Susan Curtis,
Complainant;
Diane Jones,
Jeff Swanson,
Airline Pilot;
Diane Bender,
Teacher;
Gregory T.
Zak,
Agency Noise Technical Advisor;
Anne B. Bessler,
High School French Teacher;
Jean Olsen,
Susan Sanders,
Homemaker and Former Teacher;
Gail Anne Tracy,
Joseph Misurelli,
City Manager
for City of Crystal
Lake;
Thomas Courtre,
Police Officer for City of Crystal
Lake;
and
Marcy Diesing,
Complainant and Homemaker.
The respondents called several people at hearing to testify
that the noise and dust from NSC’s operation does not violate the
Act or the Board’s rules.
Additionally, the respondents called
witnesses to testify about what impact planting the berm between
the Subdivision and MSC’s property would have on the noise and
dust.
The following is a list of respondents’ witnesses in order
of appearance:
David Olson,
Area Manager of Aggregate
Operations at MSC;
Jeff Brasuell,
MSC Plant Superintendent of
Yard 46 in Algonquin,
IL;
William Riley,
Lift Operator at MSC;
and
Dale Garman,
Senior Environmental Engineer at
MSC.
The following is a list of witnesses called to testify for
Intervening—Respondent, Village:
0I~
1-0007
6
James Wales,
Chief of Police Village of Lake in
the Hills;
Robert Hughes,
Police Sergeant Village of Lake in
the Hills;
John Gadrim,
Police Officer Village of Lake in
the Hills;
Douglas Schnenk,
Police Officer Village of Lake in
the Hills; and
Tern
Vollmer,
Police Sergeant Village of Lake in
the Hills.
TESTIMONY
Complainants’ witnesses testified extensively regarding the
impact of the noise on their lives.
At hearing, complainant
Diesing testified that the noise from MSC interferes with the use
of her property both inside the home and outside in the yard.
(Tr. at 616-30.)
Complainants’ witness Mrs. Bender testified
that the noise from the mining is audible even with all of the
doors and windows of her home closed.
(Tr. at 126.)
Mrs. Tracy
stated that the mining noise sounds like rocks hitting other
rocks.
(Tr. at 527.)
Additionally, Mrs. Bender described the
mining noise as “constant and irritating”.
(Tr. at 127.)
Mr.
Swanson testified that he occasionally wears hearing
protection in his home.
(Tr. at 110.)
Mrs. Curtis testified
that she is tense,
tired and edgy from the noise.
(Tr. at 41-
48.)
Mrs. Bessler testified that people with whom she was on the
phone could overhear the noise from NSC while she was on the
phone with them.
(Tr. at 256—258.)
Mrs. Sanders compared the
sound to constant construction noise and said that her family
sometimes used “white noise” from the television to cover the
mining noise
(Tn. at 382—388.)
Mrs.
Olsen described the noise as follows:
We hear a constant clinking,
like gravel and
scraping, and that terrible beeping sound.
There
is a beeping sound
I think from the time I wake up
in the morning until
I go to bed.
I feel like the
garbage truck is in my backyard.
(Tr.
at 278.)
Compla’inants and their witnesses also testified that the
noise has an adverse effect upon the children who live in the
subdivision.
One witness, Mrs. Jones, explained that the windows
in her son’s room rattle and that she has problems getting him to
OR 1-0008
7
sleep at night.
(Tr. at 99-101.)
Mrs. Bessler testified that
her daughter would not play on the swings and is afraid of the
noises.
(Tr.
at 259.)
Further, Mrs. Tracy testified that she
kept her children up late at night
so they could sleep from being
overtired.
Mrs. Tracy also stated that her daughter fell asleep
in class twice from lack of sleep due to the noise the night
before.
(Tn. at 528.)
Mrs. Olsen described how vibrations
disturbed her child.
(Tn. at 282.)
Mr. Zak testified that he measured noise levels in the
subdivision twice.
The measurements were taken on September 26,
1991, from 12:38 p.m. to 1:21 p.m. and on October
8,
1991, from
3:43 p.m. to 5:41 p.m.
(Comp. Exh.
11 at 1-2.)
On September 26,
1991, noise emissions from MSC were measured at the Diesing Home
at 129 Dartmoor Drive,
Crystal Lake,
Illinois 60014.
(Tr. at 165
and Comp.
Exh.
11 at 1.)
On October
8,
1991,
noise levels were
measured at the Curtis residence at 132 Dartmoor Drive, Crystal
Lake,
Illinois 60014.
(Tr. at 169 and 209 and Comp.
Exh.
11 at
2.)
Mr.
Zak’s noise survey report for the two sites include
general information, octave band survey data, site location,
inspection photos, and printout of the noise measurement data
from the two sites stored in the memory of the sound level meter.
(Comp. Exh.
11.)
The general information includes details about
the instrumentation,
atmospheric conditions and field
calibration.
(Tr. at 167—170 and Comp.
Exh.
11 at 1—2.)
Mn. Zak
used a Larson-Davis 3100 Real Time Analyzer
(RTA)
to monitor the
sound levels.
(Tr.
at 167.)
The microphone used was a model LDL
2541 No.
1296.
(Tn. at 167.)
The atmospheric conditions data
include: temperature; wind speed and direction; relative
humidity; and barometric pressure measured before and after the
survey.
(Tr. at 168-169.)
The field calibration involved the
calibration of the RTA at 114 dB and 250 hertz using a Larson
Davis calibrator.
(Tr. at 171.)
Mr.
Zak testified that the
equipment used to obtain the preliminary information complies
with the state guidelines.
(Tr. at 167-170.)
The site at which measurements were taken on September 26,
1991, was located at approximately 45 degree angle to Diesing
residence at a distance of 25 feet from the corner of the house.
(Tr. at 176 and Comp.
Exh. at 5.)
Mr. Zak testified that the
microphone was angled zero degrees and placed at a height four
feet above the ground.
(Pr. at 176-177 and Camp.
Exh.
11 at 1.)
The microphone was located approximately 65 feet from the berm
separating the noise source and the Diesing residence.
(Tr. at
177.)
Mr.
Zak noted that this site was chosen to represent the
nearest receiving property to MSC.
(Tr. at 178.)
The second monitoring site (October 8,
1991) was located at
a distance of 25 feet from the Curtis residence and in excess of
O11~i
-o009
8
four hundred feet from the MSC noise source.2
Mr. Zak testified
that he moved to the Curtis home because of wind problems at the
Diesing residence.
(Tr. at 202.)
Mr.
Zak also testified that he
felt that there was no “significant acoustic difference” between
the two sites so he moved to the Curtis site where the wind
levels were in the acceptable range of zero to twelve miles per
hour.
(Tn.
at 202.)
The instrumentation was set up in the same
manner as it was done at the Diesing residence.
(Tr. at 204.)
Mr. Zak’s report includes an octave band survey of the noise
measurement data of the sound emissions from the mining operation
at NSC.
(Tn. at 235 and Comp.
Exh.
11 at 3.)
The octave band
survey data include decibels levels at various frequencies
transcribed from the RTA printout for both sites.
(Tr. at 237.)
Mr.
Zak testified that the noise data measured on September 26,
1991,
at the Diesing residence, was adequate to represent the
ambient sound level, which is used to correct the raw sound
levels to adjust for the impact of ambient conditions.
(Tn.
at
187—188,
322, and Camp.
Exh.
11 at 18—28.)
The data measured on
October
8,
1991,
represents the raw sound levels emanating from
MSC in terms of 1-hour L~.
(Tr. 233-234 and Camp.
Exh.
11 at 31-
96.)
Mr.
Zak compared the raw octave band sound levels measured
on October
8,
1991, to the daytime numerical limits in Section
901.102
(a) to arrive at the reduction needed
for compliance.
(Pr.
at 238—239.)
Mr.
Zak noted that no ambient corrections are
necessary since the difference between the ambient levels and the
noise levels from the source is equal to or greater than
11.
(Tr. at 239—240 and Comp.
Exh.
11 at 3.)
Mr. Zak also estimated
the projected reduction of sound levels required to comply with
the nighttime limits in Section 901.102(b).
(Pr. at 241—242 and
Camp.
Exh. at 3.)
However, Mr. Zak noted that he was not
claiming nighttime violation since the noise measurements were
taken
in daytime.
(Tr. at 241-242.)
The report also includes
graphic representation of the octave band survey data that shows
the actual and projected violations of the Board’s noise
regulations in Section 901.102.
(Tn. at 243-244 and Camp.
Exh. at
4.)
Mr.
Zak’s report includes a printout of the noise data
stored in the memory of the RTA.
(Camp.
Exh.
11 at 17-97.)
The
printout indicate proper calibration of the instrument, and the
type of sound being recorded,
i.e. octave band or discrete tone.
(Comp. Exh.
11 at 17,
29,
30 and 97.)
The printout also
2A chart comparing the sound levels measured in dB allowed
by Section 901.102(a)
and those emitted from MSC as measured by
Mr.
Zak on October 8,
1992, can be found on page 18 of this
opinion.
O\~-üO’~O
9
establishes that the analyzer took an L~measurement as required
by Board regulations.
(Tr. at 185
and Comp.
Exh.
11 at 17-97.)
Mn. Zak testified that the information in the printouts formed
the basis of his conclusion that the MSC mining operations were
in violation of Section 901.102(a)
of the Board’s noise
regulations.
(Tr. at 237-241.)
Mr.
Zak did not take any night
noise measurements,
although he opined that MSC would have to
reduce their noise in order to comply with the nighttime
limitations.
(Tn. at 241—243 and Comp.
Exh.
11 at 3.)
Mr.
Zak’s testimony was contested by the testimony of
Respondent’s witness, Mr.
Garman,
a member of MSC’s environmental
services department.
Mr. Garman testified that he believed the
frequency readings taken by Mn.
Zak on October 8,
1991, reflected
the noise of the winds, of anywhere from twelve to twenty miles
per hour, blowing through the trees,
and not the noise from MSC.
(Pr. at 1035 and 1036.)
Mr. Garman also testified that it was
his experience that it was “virtually impossible” to determine a
predominant noise source without taking measurements at more than
one location.
(Tr. at 1036.)
On March 15,
1991,
Mr. Ganman used a Larson Davis Lab Model
800-B with a Hewlett Packard Model 70-B computer to sample the
noise at MSC Yard 46.
(Tn.
at 999.)
March 15,
1991, was the
first time he had ever used this equipment.
(Pr. at 99.)
Garman
also testified that some of the samples taken on March 15,
1991,
were distorted and that there is
a possibility that all of the
samples were distorted.
(Tr.
at 1001-1002 and 1044.)
Mn. Garman
also testified that he obtained data for October
9,
1991.
However, he testified that the data would be of no help in
ascertaining if there was a noise violation at the Diesing or
Curtis properties.
(Pr.
at 1058.)
Although the noise in the Coventry subdivision
is not
limited to the mining by MSC, complainant Curtis and witnesses
Bender,
Besslen,
and Tracy testified that they are not bothered
by the other noises.
Subdivision residents consistently stated
that their concern with noise began when mining started.
They
did not consider the sounds associated with the local roads,
airport or other industries to be consistently bothersome.
(Tr.
at 70—72,
154, 253—255,
398,
531.)
Mrs. Bender testified that
she can hear MSC over the other neighborhood noise such as the
airport and the nearby roads.
(Pr.
at 139.)
Additionally, Mr.
Zak testified that MSC was the predominant noise source in the
Coventry subdivision when he was taking readings on October 8,
1991.
(Tn. at 211, 213—216.)
Complainants and their witnesses also testified about the
dust pollution from the mining.
Complainant Curtis testified
that the dust has ruined the fabric on her sofa and has
“exasperated” her son’s allergies.
(Tr. at 72—3.)
Complainant
OIL~1-0QII
10
Diesing described cleaning her house thoroughly and leaving it
closed while she was on vacation only to return to a dust covered
home.
Other witnesses from the subdivision, Mrs. Bender, Mrs.
Olsen, and Mrs.
Sanders, also testified that they have problems
with the mining dust both inside and outside of their homes.
(Tr.
at 126,
277—285, 382—395.)
One witness, Mr.
Swanson,
testified that he has had to hire professional cleaners to clean
the dust from his home.
(Pr. at 111.)
Mrs. Tracy testified that
when she painted her kitchen, “The next day there were brown
streaks all the way through which we had to redo.”
(Tn. at 529.)
The extent of the dust problems was illustrated by Mrs.
Bender who said:
I have a screen house on my patio, and I have to
take a hose with a cleaner on it at least every
other day, because you can’t even see through the
screen.
The dirt just clogs right in there, plus
the dirt in my home.
(Pr.
at 141.)
Mr. Brasuell, MSC’s plant superintendent of yard 46 in
Algonquin,
Illinois, testified that MSC has attempted to mitigate
the noise arising from its mining operations. They have done this
through self—imposed noise abatement techniques.
Some of the
techniques which have been employed are:
6:00 A.M.- 12:00
midnight working hours Monday—Saturday, not mining on Sunday,
adding new mufflers to some equipment, and installing smart
alarms on some trucks.
(Tn. at 825.)
Mr. Brasuell testified
that MSC is looking into ways to solve the problems created by
the lights which are used after dank on the Cohn parcel.
(Tn. at
824.)
The record does not, however, reflect any attempt by the
respondent to mitigate the air pollution caused by the mining
other than trying to get the City to plant the berm.
Mr. Brasuell indicated that
it was his belief that the
corrective action undertaken by MSC has reduced the noise
emissions by confining them to the hours of 6:00 A.M. until
midnight.
Mr. Brasuell also testified that the new heavier
mufflers reduced the noise produced by the machines on which they
have been installed.
(Tr. at 800,
810, 835.)
Complainants Diesing and Curtis and witnesses Swanson,
Zak,
Olsen, and Sanders all were of the opinion that a higher or more
planted berm would not solve the problems associated with the
mining operation.
(Tr. at 82,
123, 289—90,
397,
645.)
Mr. Zak
said that planted berms will screen an area and make it pleasing
to the eye,’ “but instrumentation would indicate there was
virtually no change in noise coming from the berm area
if it was
planted with trees.”
(Pr. at 246.)
He also indicated it would
take a significant depth of vegetation in order to provide a
0 1t~1-0012
11
significant noise reduction.
(Pr.
at 246.)
APPLICABLE REGULATIONS FOR NUISANCE NOISE
Title VI of the Act establishes procedures and standards for
noise control.
Section 23 of Title VI sets forth the
legislature’s purpose of preventing noise that causes a public
nuisance.
Section 24 of Title VI prohibits the emission beyond
one’s property of noise that unreasonably interferes with another
person’s enjoyment of life or lawful activities.
The Board’s
authority to adopt noise regulations
is found in Section 25.
Section 23 and 24 of Title VI provide as follows:
Section 23
The General Assembly finds that excessive
noise endangers physical and emotional health
and well—being,
interferes with legitimate
business and recreational activities,
increases construction costs, depresses
property values, offends the senses, creates
public nuisances,
and in other respects
reduces the quality of our environment.
It is the purpose of this Title to prevent
noise which creates a public nuisance.
Section 24
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 activity,
so as to
violate any regulation or standard adopted by
the Board under this Act.
The Board has implemented these sections of the Act in two
ways.
First, the Board has adopted specific numerical
limitations on the characteristics of sound that may be
transmitted from source to receiver.
The second method of
implementing the noise provisions of the Act are found in 35 Ill.
Adm. Code 900.101 and 900.102.
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.
Q1L~.1
-0013
12
Section 900.102 Prohibition of Noise
Pollution
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.
In effect, these two sections adopt a regulatory public nuisance
provision for noise control using the statutory phrase
“unreasonable interference with the enjoyment of life or with any
lawful business or activity” as the standard.3
The Board finds that the testimony is sufficient to
establish that the noise and dust from MSC caused interference
with life in the Subdivision.
The Board now moves to an analysis
of whether the interference was unreasonable under Section 33(c).
UNREASONABLE INTERFERENCE
The Illinois Supreme Court has directed that the Board must
consider the facts of the case in light of the factors outlined
by 33(c) of the Act in determining whether unreasonable
interference has occurred under the Act and Board rules.
Wells
Manufacturing Co. v.
PCB,
73 Ill. 2d 226, 232—33,
383 N.E.2d 148,
150—51
(1978)
(“nuisance” air pollution; first four factors
only);
see Ferndale Heights Utilities v. PCB and IEPA,
44 Ill.
App.
3d at 967—68,
358 N.E.2d at 1228.
Those factors are as
follows:
~ Noise enforcement cases previously decided by the Board
include:
Kaii v.
R.
Olson
Mfcr.
Co.,
Inc.
(1981)
PCB 80—46,
aff’d,
(1982),
109 Ill. App.
3d 1168,
441 N.E.2d 188;
Citizens
of Burbank v.
Clairmont Transfer Co.
(1986),
PCB 84-125;
John W.
Eirlich v. John Smith
(1987), PCB 85—4; Thomas
& Lisa Annino v.
Browning—Ferris Industries
(1988) PCB 97—139; Anthony Kochanski
v. Hinsdale Golf Club (1989), PCB 88—16,
rev’d,(1990),
197 Ill.
App.
3d 634, 555 N.E.2d 31; William Brainerd v.
Donna HacTen et
~
(1989),
PCB 88-171;
Brian 3. Peter v. Geneva Meat and Fish
Market (1990), PCB 89-151;
Will County Environmental Network v.
Gallagher Asphalt
(1990), PCB 89-64;
Kvatsak v. St. Michael’s
Lutheran Church
(1990), PCB 89—182; Zivoli v. Prospect Dive and
Sport Shop (1991), PCB 89—205; Village of Matteson v. World Music
Theatre
(1991 and 1993), PCB 90-146;
Christianson v. American
Milling (1991), PCB 90—59;
Zarlenga v Bloomingdale Partners
(1991 and 1992), PCB 89—169.
0IL~1-00R
13
(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
.
.
.
resulting from such pollution
source; and
(v)
any subsequent compliance.
415 ILCS 5/33(c)
(1992).
These factors guide the Board in reaching a decision on
whether or not noise emissions rise to the level of noise
pollution,
which, by definition, unreasonably interfere with the
enjoyment of life, and which is proscribed by the Act and
regulations.
The Illinois courts have held that the
reasonableness of the interference with life and property must be
determined by the Board by reference to these statutory criteria.
Wells Manufacturing Company v. Pollution Control Board
(1978),
73
Ill.2d 225, 383 N.E.
2d 148;
Mystic Tape.
Div. of Borden.
Inc.
v. Pollution Control Board
(1975), 60 Ill.2d 330,
328 N.E.2d 5;
Incinerator.
Inc.
v. Pollution Control Board
(1974),
59 Ill.2d
290,
319 N.E.
2d 794; City of Monmouth v. Pollution Control Board
(1974),
57 Ill.2d 482,
313 N.E.2d 161.
However, complainants are
not required to introduce evidence on each of these points.
Processing
& Books v. Pollution Control Board
(1976),
64 Ill.2d
68,
351 N.E.2d 865.
The Board now turns to consideration of each of these
mandatory factors in determining whether the interference
suffered is unreasonable.
CHARACTER
AND
DEGREE OF INJURY
In assessing the character and degree of the injury or
interference caused by the noise emissions from MSC the Board
looks to whether the noise substantially and frequently
interferes ‘with the use and enjoyment of life and property,
beyond minor trifling annoyance or discomfort.
(Kvatsak, PCB 89-
182 at 9.)
01
Lj.
1-0015
14
The testimony demonstrates that people in the subdivision
were severely impacted by the noise for an extended period of
time.
Their sleep, conversations, study habits, and daily
routines were disrupted.
Their children were similarly disturbed
by the noise.
The record clearly establishes that the
complainants enjoyment of their homes and yards was affected by
the noise.
SOCIAL OR ECONOMIC VALUE OF THE SOURCE
The record establishes that MSC is a viable business
concern.
In fact,
one of the largest industries
in McHenry
County
is the sand and gravel industry.
(Tr.
at 726.)
MSC
employs thirty-three people as
a result of mining the Cohn
parcel.
(MSC Brief at 15.)
Additionally, MSC hires as many as
120 different truck drivers on any one day.
(MSC Brief at 15.)
SUITABILITY OR UNSUITABILITY OF THE SOURCE
The subdivision is in a residential area of Crystal Lake.
Nearby is another gravel pit also in Crystal Lake.
MSC is in
Lake in the Hills next to an airport in an area zoned M—1
(Manufacturing) with a special use permit for the excavation of
sand and gravel.
The Cohn property was purchased in 1956 for the
explicit purpose of mining.
MSC has a mining permit from the
Illinois Department of Mines and Minerals.
(Pr.
at 708-709.)
Until 1990 the property was generally in farm use.
Mrs. Bender
testified that she has lived in the Subdivision for 22 years.
(Tr.
at 137.)
Several complainants’ witnesses testified they
were unaware that MSC owned the Cohen parcel.
One was lead to
believe the land would be a park,
another was told by a real
estate agent the land would remain a farm.
(Tn.
at 86,
393 and
633.)
TECHNICAL PRACTICABILITY
AND
ECONOMIC REASONABLENESS OF CONTROL
The record shows that the cost of installation of noise
reduction equipment,
and the feasibility of installation varies
depending upon the type of machinery it is being added to.
(Pr.
at 796-811, and 823.)
Therefore,
the Board finds that although
the exact costs are uncertain,
it is technically practical to
reduce noise.
SUBSEQUENT COMPLIANCE
The record contains disputed evidence regarding this factor.
The first issue of subsequent compliance in dispute is whether
MSC mines outside of the hours of 6:00 A.M. and midnight.
Complainants and their witnesses testified that at times since
August 1991, that they have heard mining after midnight.
MSC
testified that they no longer mined after midnight and in support
of this testimony,
several Lake in the Hills police officers were
01
1~
1-0016
15
called to testify.
The next issue is the actual affect of the new equipment
installed by MSC on the noise.
Mr. Brausuell,
a Plant Supervisor
for MSC,
testified that MSC has installed new mufflers on some
equipment,
smart alarms to control backup beeping,
and is looking
into ways to alleviate the problems caused by their lights.
(Tr.
at 798,
800, 802.)
In addition, Brausuell testified that MSC
installed rock shelves in the transfer points at the Cohn
property so that the sand and gravel falling from one conveyor to
the next will hit more sand and gravel instead of metal.
(Pr. at
810.)
He also testified that MSC hung rubber belting material on
the west side of the property to isolate the sound of the
transfer points to that area.
(Tr. at 810.)
The effectiveness
and safety of various options for reducing noise from operating
equipment was discussed but no clearly workable plan emerged.
However, when Mr. Garman testified about the noise
measurements he had taken, he stated that in light of the
measurements, he had reached the conclusion that the high
performance muffler MSC had installed was “not having the affect”
that he had expected.
(Pr. at 1028.)
Finally,
in its motion to dismiss, MSC stated that it has
completed all mining in the area north of the Lake in the Hills
Airport including the Cohen property and that it does not plan
any further mining in the area.
(Mot.
at 2.)
MSC also states
that it plans to conduct reclamation activities in the area in
the spring of 1993.
(Not.
at 2.)
The complainants in their response to MSC’s motion argued
that their complaint is not limited in scope to the area to the
north of the airport.
(Resp. at 1.)
The complainants state that
their complaint includes Tracts
“A”,
“B”, and “C”.
(Resp. at 1.)
Complainants argued in their response that the continued mining
in tract “B” which is south of the airport, continues to
“compromise the lifestyles and quiet” of the Subdivision
residents.
(Resp.
at 2.)
In addition,
in their response,
complainants expressed concern over what will constitute
reclamation activity and what noise will be associated with that
activity.
(Resp. at 2.)
CONCLUSION AS TO UNREASONABLE INTERFERENCE
After consideration of the facts and circumstances of
record, and in light of the Section 33(c)
factors, the Board
finds that the noise emissions from MSC’s mining activity did
constitute an unreasonable interference with complainants’
enjoyment of life,
property, and pursuit of lawful business or
activity.
The Board finds that MSC violated Section 24 of the
Act and 35 Ill. Adm. Code 900.102.
0IL~I-0Ol7
16
SECTION 901.102 NUMERICAL NOISE VIOLATION DISCUSSION
Section 901.102(a)
provides that no person shall cause or
allow the emission of sound during daytime hours from property
located on any Class A,
B or C land to receiving Class A land in
excess of certain enumerated allowable octave band sound pressure
levels.
The regulations adopt a standard land use coding manual
(SLUCM).
(35 Ill. Adm. Code Subtitle H Appendix B.)
It is the
use class of the property, not the zoning class, which is
controlling under Section 901.102(a).
Mr. Zak testified that the
mining operations of MSC constituted Class C land and that the
Subdivision constituted Class A land.
(Pr. at 244.)
In order to show compliance with, or establish a violation
of the Board’s sound emission standards for property—line—
noise—sources at 35 Ill.
Adm. Code 901.102, the sound emissions
from the source must be measured in accordance with the Board
regulations at 35 Ill. Adm. Code 900 and 901.
These regulations
prescribe procedures for the measurement of sound pressure
levels, and specifications for the instrumentation used to
measure sound levels.
If the sound measurement data presented to
the Board are obtained by methods which do not meet the
applicable standards, then the validity of such data becomes
questionable.
In the present case,
the Board finds that the noise
measurement data presented by Mr.
Zak is valid sound data.
The
instrumentation and the procedures used to measure the sound
levels are in accordance with the Board regulations at 35 Ill.
Adm. Code 900 and 901.
First, the sound level meter used in the
study, Larson-Davis 3100 real time analyzer (RTA), complies with
the standards prescribed at
35 Ill.
Adm. Code 900.103(b).
(Tn.
at 167.)
The Board notes that the RTA is a Type
I precision
device capable of measuring the full spectrum of sound
frequencies specified in the Board regulations simultaneously and
present the data in terms of L~averaging as defined at 35 Ill.
Adm. Code 900.101.
Second, the sound measurement data included in Mr.
Zak’s
report indicate that the sound levels have been recorded in
accordance with the 1—hour Leq requirement of 35 Ill.
Adin.
Code
900,
i.e, the sound levels have been measured at different octave
band center frequencies on the basis of
L,~,averaging over a
period of one hour.
(Tr. at 233-234.)
Regarding the ambient level, the Board notes that Mr. Zak
used the data measured on September 26,
1991,
during mining
operations for comparing with the raw noise data measured on
October 8,
1991, to determine if ambient correction was
necessary.
(Tr.
at 187—188.)
In this regard, the Board believes
that ideally ambient should be measured within an hour before or
OIL~1-00l8
17
after the measurement of the property—line—noise source
emissions.
However,
if such measurement is not possible,
representative ambient data measured on a different date may be
used to correct the raw sound levels4.
The noise survey data
indicate that ambient correction is not necessary due to the high
levels of the source sound compared to the ambient levels5.
(Tn.
at 239—240.)
Finally, the Board notes that Mr.
Zak’s report appears to
meet all the requirements of 35 Ill. Adm. Code 9512,
and includes
all the necessary information that is needed to evaluate the
sound level data to make a determination of compliance or
non—compliance.
The information in the report includes the
atmospheric conditions,
octave band survey of the sound data in
written and graphical forms,
a map and pictures showing the
location of the sound source and the measurement point, and a
printout of the raw sound level data including calibration data
from the memory register of the RTA.
Regarding the sound measurement data presented by Mr. Garman
on behalf of MSC,
the Board notes that information presented in
the noise report, and the hearing testimony indicate that the
procedures used to measure the sound levels are not in accordance
with the Board regulations at 35 Ill.
Adm. Code 900.103(b).
Therefore, the Board cannot consider the sound level data
presented by Garman to make a determinat~ionof compliance or
non—compliance.
The following compares the sound levels, measured in dB,
allowed by Section 901.102(a)
and those emitted from MSC as
measured by Mr.
Zak on October
8,
1992.
Regulatory Limits
Octave Band Center
Class C Land
Sound Emitted by
Frequency (Hertz)
to Class A
Mining Operations
31.5
75
75
63
74
70
125
69
64
250
64
60
500
58
61
1000
52
60
2000
47
55
4000
43
51
8000
40
45
4See Village of Matteson v. World Music theater
(February
25,
1993), _PCB_,
PCB 90—146.
5Ambient correction is not necessary when the difference
between the raw sound levels and the ambient sound levels is
equal to or greater than 11.
01 ~ I -0019
18
Based upon the sound emissions data presented by Mr.
Zak,
the Board finds that complainants have established that emissions
from MSC violated Section 901.102(a).
The Board notes that although complainants allege violations
of the nighttime limits at Section 901.102(b), no nighttime noise
measurements were entered into evidence.
The Board notes, that
Mr.
Zak did project nighttime noise violations based upon his
daytime readings.
However, these projections are not proof of
any such violation by the respondent.
Thus,
the Board finds that
there is insufficient proof in the record to find a nighttime
noise violation under 901.102(b).
AIR POLLUTION DISCUSSION
Complainants have also brought an air pollution action under
Section
9 of the Act. Section
8 of the Act sets forth the
legislature’s purpose of preventing air pollution that causes a
public nuisance the relevant part states:
It is the purpose of this Title to restore,
maintain, and enhance the purity of the air of this
State in order to protect health, welfare, property,
and the quality of life and to assure that no air
contaminants are discharged into the atmosphere without
being given the degree of treatment or control
necessary to prevent pollution.
(415 ILCS 5/8
(1992).)
Accordingly,
Section 9 defines acts prohibited under the air
pollution title.
The relevant portion states,
no
person shall;
cause or threaten or allow the
discharge on emission of any contaminant into the
environment in any State so as to cause or tend to
cause air pollution in Illinois, either alone or in
combination with contaminants from other sources...”
(415 ILCS 5/8
(1992).)
The Act’s definition of air pollution is found in Section
3.02, which states:
‘AIR POLLUTION’
is the presence in the atmosphere of one
or more contaminants
in sufficient quantities and of such
characteristics and duration as to be injurious to human,
plant,
or animal life,
to health,
or to property, or to
unreasonably interfere with the enjoyment of life or
property.
(415 ILCS 5/8
(1992).)
01 ~
I -0020
19
The Board is also required in air enforcement actions to
consider the factors set out in 33(c)
of the Act in order to
determine whether or not MSC’s air emissions are reasonable.
Wells Manufacturing Co.
v. PCB,
73
Ill.
2d 226,
232—33,
383
N.E.2d 148, 150—51
(1978)
(“nuisance” air pollution;
first four
factors only).
CHARACTER
AND
DEGREE OF INJURY
The
record is replete with uncontroverted testimony
concerning the dust pollution caused by MSC’s mining activity.
Complainants testified as to ruined paint, excessive dust on
furniture,
inability to leave windows open,
dust on homes and
yards,
and added expense to clean their homes.
SOCIAL OR ECONOMIC VALUE OF THE SOURCE
AND
SUITABILITY OR UNSUITABILITY OF THE SOURCE
The Board notes that the analysis of the social or economic
value of the source and the suitability or unsuitability of the
source
is the same as was discussed in the nuisance noise section
of this opinion.
TECHNICAL PRACTICABILITY AND ECONOMIC REASONABLENESS OF CONTROL
Respondents’ testimony about reducing the dust from MSC’s
operations centered on planting the berm and additional trees or
vegetation.
The agreement between the City and the Village
specifically addresses the berm planting requirements.
There was
no testimony regarding what action MSC could take to lower the
dust levels.
SUBSEQUENT COMPLIANCE
There is no evidence in the record regarding MSC’s
subsequent compliance with Section
9.
The only evidence
regarding possible compliance came from the City.
City Manager
Misurelli testified that the City let out bids and that the
contract to landscape the berm was awarded on September 17,
1991.
(Pr. at 562.)
As of January 28,
1992, work on the berm had not
been completed.
However, planting and seeding of the berm was
expected to be done in the spring of 1992.
(Tn.
at 578.)
It is
quite clear from the record that the berm contributed to the dust
problem.
It was planted far too late for vegetation to have a
positive impact on dust control.
Mrs. Curtis’ preferring that
the plantings had been done ten years prior to mining
(Tr. at 83)
is on point.
CONCLUSION AS TO UNREASONABLE INTERFERENCE
The Board finds that the evidence is sufficient to show that
the mining activity of MSC causes dust to be discharged into the
OR 1-0021
20
air
in
such
a
manner
as
to
cause
on
tend
to
cause
air
pollution
in
Illinois.
Therefore,
the
Board
finds
that
MSC
caused
dust
to
be
discharged
into
the
air
in
violation
of
section
9(a)
of
the
Act.
CROSS-COMPLAINT DISCUSSION
MSC in its cross-complaint alleges that the City has failed
to honor a settlement agreement between itself the City and the
Village by failing to plant the berm located between the
Subdivision
and
NSC’s
property.
In
addition, MSC alleges that a
planted
berm
would
deflect
noise
and
dust
from
the
Subdivision.
In
addition,
MSC
asks
the
Board
to
direct
the
City
to
immediately
plant
the
berm
if
it
is
found
that
MSC
violated
the
Act
or
the
Code.
The
record
reflects
that
the
City
has
contracted for the
seeding
of
the
Berm
and
that
should
be
completed
sometime
in
the
near
future.
(Pr.
at
594.)
The
issues
presented
in
the
cross—complaint are not properly
before
the
Board.
The Board finds inadequate basis to compel
further
conduct
by
the
panties
or
to adjudicate contractual
obligations,
via
an
order
of
this
Board.
In
so
saying,
the
Board
is
not
suggesting
that
the
agreement
is
not
binding
or
that
the
parties
are
not
free
to
pursue other devices
or
forums
outside
of
the
Board
order.
However,
because
the
Board finds that cross—
complaint is improperly before
it
and
that
the
Board
lacks
jurisdiction
to
compel
the
City
to
plant
the
berm.
REMEDY
Having
found
MSC
in
violation, the Board
notes
that
on
November
20,
1992,
MSC filed a motion to dismiss which was denied
by
Board
order on December 17,
1992.
MSC
in
its
motion
stated
that
the
Board should grant its motion to dismiss because this
proceeding had been rendered moot.
In support of its assertion,
MSC alleged that it had completed all of its mining operations on
the land north of the Lake in the Hills airport including the
Cohen
property
which
is at issue in this case.
(See,
Curtis and
Diesing
v.
Material
Service
Corporation
et.
a?.
(December
17,
1992)
—
PCB
—,
PCB 91-30 at 1.)
Further, MSC stated that it
did not plan any additional extraction
in the area.
(Id.)
However, MSC did state that it would be performing reclamation
activities in the area.
(Id.)
-
Because of NSC’s past violations, and in light of the fact
that the reclamation activity will be occurring in the area
immediately south of the Subdivision, the Board will order MSC to
cease and desist from causing any violations of the Act or the
Board’s regulations.
01L~1-0022
21
The
record
does
not
contain
a
unified
plan
for
controlling
dust
and
noise that is workable as well as economically viable.
The
Board
notes
that
it cannot determine on the basis of the
facts
before
it
which
of
the
noise and dust reduction strategies
would
produce
the
most
effective
compliance alternative for MSC.
Accordingly, the Board will direct MSC to take what it
views
as
the most effective steps,
consistent with any safety
considerations,
during future operations with the only provision
that the choice effectuate compliance.
The Board notes that the complainants do not ask for a
monetary penalty.
The Board will not today,
on its own motion,
levy a monetary penalty against MSC, but notes that pursuant to
Section 42 of the Act, the Board is empowered to levy a civil
penalty.
Should future violations be found concerning the site,
penalties may be imposed.
This opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
1.
The Board finds that Material Service Corporation has
violated Sections 9(a)
and 24 of the Illinois Environmental
Protection Act,
415 ILCS 5/9(a)m 5.24
(1992), and 35 Ill.
Adin.
Code 900.102 and 901.102(a).
2.
Material Service Corporation is hereby ordered to take
necessary steps to comply with Sections 9(a)
and 24 of the
Act and 35 Ill
Adin.
Code 900.102 and 901.102(a) at all
times,
and to cease and desist from further violations
of
the Act and Board regulations.
IT IS SO ORDERED
Section 41 of the Environmental Protection Act (415 ILCS
5/41
(1992).) provides for appeal of final orders of the Board
within 35 days.
The rules of the Supreme Court of Illinois
establish filing requirements.
(But see also 35 Ill. Adm. Code
101.246, Motions for Reconsideration;
Castenada v. Illinois
Human Rights Commission
(1989),
132
Ill. 2d 304,
547 N.E.2d 437,
and Strube v.
Illinois Pollution Control Board,
No.
3-92—0468,
slip op. at 4—5
(3d Dist. March 15,
1993).)
I, Dorothy M.
Gunn, Clerk of the Illinois Pollution Control
Board,
hereby certify that the above opinion~andorder was
adopted on the
~
day of
c~-’LJ~
,
1993,
by
a
vote
of
-
7,)
~
Dorothy
M.
G94t1,
Clerk
Illinois Pollution Control Board
01
L~
1-0023
