ILLINOIS POLLUTION CONTROL BOARD
July 30,
1992
JOHN ZARLENGA and
JEAN
ZARLENGA,
)
Complainants,
)
)
v.
)
PCB 89—169
(Enforcement~
PARTNERSHIP CONCEPTS,
)
HOWARD EDISON,
BRUCE MCCLAREN,
)
COVE DEVELOPMENT COMPANY,
)
THOMAS O’BRIEN,
BLOOMINGDALE
)
PARTNERS,
an Illinois Limited
)
Partnership, and
GARY
LAXEN,
)
Respondents.
OPINION
AND
ORDER OF THE
BOARD
(by J. Anderson):
On July 7,
1992,
Partnership Concepts, Howard Edison, Bruce
McClaren,
Cove Development Company, Thomas O’Brien, Bloomingdale
Partners, and Gary Laken (respondents)
filed a motion to amend
the Board’s February 27,
1992 Final Opinion and Order in this
matter and a motion for expedited consideration.
On July 23,
1992, John and Jean Zarlenga (Zarlenga)
filed their response to
respondents’ motion to amend.
BACKGROUND
On October
23,
1989, the Zarlengas filed a noise complaint.
In. their complaint, the Zarlengas alleged that the individual air
conditioners, generators,
fans,
and swimming pool dehumidifier
located at the respondents’ apartment complex (One Bloomingdale
Place)
emit excessive noise beyond the boundaries of the complex
in violation of Section 24
of the Environmental Protection Act
(Act)(Ill.
Rev.
Stat.
1991,
ch.
111½,
par.
1024).
On May 9,
1991, the Board issued an interim opinion and
order finding that respondents had violated Section 24 of the Act
and 35 Ill. Adm. Code 900.102.
While several remedial options
were mentioned at hearing, there were certain informational
deficiencies in the record with regard to a program to reduce the
noise being emitted from the complex.
Accordingly,
in order to
assist the Board in determining the most appropriate remedial
action for the abatement of the noise,
the Board ordered
respondents to have a competent individual or firm prepare a
report describing,
evaluating, and analyzing,
to the maximum
extent possible, all methods of control.
The Board also noted
that each control option shoUld include the anticipated noise
reduction resulting from the implementation of each option, cost
of
implementation,
and an estimate of a reasonable time for
0135-0109
2
implementation.
On October 31, 1991,
respondents submitted a “Report of
Noise Control Options for the Reduction of Sound Emissions from
Mechanical Units at One Bloomingdale Place,
Bloomingdale, IL” by
Kirkegaard & Associates (Kirkegaard).
The Kirkegaard report
evaluated that nature of the noise at One Bloomingdale Place,
set
forth several noise abatement options, and recommended the
following phased approach to control the noise emitted from One
Bloomingdale Place:
1.
Install intake and exhaust silencers on the 64
individual air conditioners.
2.
If the resulting noise reduction is found to be
acceptable to the Board and/or the Zarlengas, proceed
no further.
3.
If the resulting noise reduction is deemed unacceptable
to the Board and/or the Zarlengas,
install silencers on
the Zephyr unit.
4.
If, upon implementation of treatments
1 and 3, the
noise reduction is found to be unacceptable to the
Board and/or the Zarlengas, construct a sound barrier
wall around the Zephyr unit.
On January 6,
1992, the Zarlengas filed a response to
respondents’ noise report.
In their response, the Zarlengas
stated that,
after talking with Mr. Gregory Zak of the Illinois
Environmental Protection Agency (Agency), they had decided to
“stand on the report” and to forego any further pleadings with
the Board.
On February 27,
1992, the Board issued its final opinion and
order
in this matter.
Although the Board recognized that the
Kirkegaard report did not address either the structural or
engineering feasibility of the recommended course of action,
it
crafted its order to mirror the phased approach recommended by
Kirkegaard.
In order to avoid a situation where the remedy .was
not initiated in a timely manner, the Board also ordered
respOndents to cease and desist from violations of Section 24 of
the Act and 35 Ill. Adm. Code 900.102 no later than one year of
the date of the order.
In addition, because the Board realized
that concerns such as the time needed for structural and
engineering feasibility studies and weather
(as it relates to the
time needed to implement and test the effectiveness each phase)
could affect respondents’ ability to implement the order in a
timely manner, the Board noted that respondents could file a
motion for reconsideration of the order pursuant to 35 Iii. Adm.
Code 103.241(b)
and
(c)
if such concerns had an impact upon the
implementation of the recommended course of action.
0135-0110
3
Respondents’ Motion for Expedited Consideration
In its motion for expedited consideration, respondents’
request that the Board consider its motion to amend on an
expedited basis.
In support of its motion, respondents state
that after the Board issued its February 27,
1992 order,
they
discovered new evidence that shows that the required noise
reduction actions are infeasible and that more efficient and
feasible measures are available.
Respondents add that they wish
to implement the proposed remedy as soon as possible because the
noise emitted from One Bloomingdale Place is loudest in the
summer.
The Board grants respondents’ motion for expedited
consideration, and
is ruling on respondents’ motion to amend at
the first regularly scheduled Board meeting after it received the
Zarlengas’ response to respondents’ motion.
Respondents’ Motion to Amend the Board’s February 27,
1992 Final
Opinion and Order
In its motion to amend, respondents ask that the Board amend
its February 27,
1992 order because
1) that portion of the order
requiring the installation of silencers on the individual air
conditioners is infeasible,
and
2)
because there
is a feasible
and more efficient means to reduce the noise emitted from One
Bloomingdale Place.
In support of its request to amend, respondents state that,
after they received the Board’s February 27,
1992 order, they
requestedSuperior Mechanical Industries
(SNI),
a heating and air
conditioning firm, to investigate the structural and engineering
feasibility of installing silencers on the individual air
conditioners.
SMI analyzed the impact of the proposed silencers
and reviewed the proposal with the manufacturer of the individual
air conditioners.
SMI concluded that installation of the
silencers would result in a potential life safety hazard because
the addition of the silencers would cause the silencer’s
discharge gases to recirculated into the fresh air intake of the
unit during heating operation and thus,
endanger the health of
the tenants.
(Resp. motion
—
Ex. A.,
p.
2)
Respondents add that installation of the silencers would
place an undue financial burden on respondents by increasing the
respondents’ maintenance costs, reducing the value of One
Bloomingdale Place, and increasing respondents’ potential legal
liability.
Specifically, respondents state that attaching
silencers to the individaul air conditioners involves grafting at
least 60 two foot high by two foot wide by
5
fopt long units,
each weighing 104 pounds, on the south facade of the apartment
complex and that such duct work would obscure the view out of the
windows on the south side of the building.
(~.
p.
1.)
0135-Oil
I
4
Respondents add that the silencers will reduce the aesthetic
appeal of the building, from both inside and outside, and thus
diminish the value of the property.
Moreover, respondents state
that the continuing maintenance necessary to maintain the
appearance of the steel galvanized duct work will be costly.
(n.)
Finally, respondents state that while the silencers might
reduce overall sound levels, they will result in greater
compressor noise and thus, may increase rather than mitigate the
rumbling from the individual air conditioners.
(u.)
In connection with its review of the feasibility of
installing the silencers,
SNI examined alternative means to abate
the noise.
SMI concluded that replacing the current chassis and
cylinder compressors with new chassis and rotary compressors
would reduce overall sound and eliminate the rumbling emitted
from the individaul air conditioners.
(~.
pp.2,
3.)
Respondents retained Shiner & Associates,
Inc.
(Shiner),
an
acoustical engineering and consulting firm,
to review the matter
and determine the effectiveness of SMI’s proposal by conducting
sound measurements of the units as modified with the replacement
chassis and compressors.
After its review,
including sound
measurements from a test unit with the proposed replacement
apparatus,
Shiner concluded that the installation of new chassis
and rotary compressors would substantially mitigate the noise and
were the most effective solution.
(Resp.
motion
—
Ex.
D,
p.
3.)
Shiner also agreed with SMI that the silencers would not
effectively abate the rumbling.
(u.)
Respondents state that the installation of new chassis and
compressors will eliminate the problems which render installation
of the silencers infeasible.
More specifically, respondents
state the proposed plan removes the need to install 12,480 pounds
of piping on the building.
Respondents add that this option is a
more cost-effective approach.
Specifically, respondents state
that the cost of the renovation will be approximately $80,000,
which is $23,00 less than the installation of the silencers.
(Resp. motion
-
Ex.
E.)
As for the Zephyr unit and the clubhouse air conditioner,
respondents state that they will remove and relocate the units to
the other side of the building.
Respondents state they fully
intend to resolve the noise problems and comply with the Board’s
February 27,
1992 Order.
They add that they have acted
expeditiously and diligently with respect to their determinations
concerning feasibility and the alternatives.
In fact,
respondents state that they have begun to relocate the Zephyr
unit and the clubhouse air conditioner and expect to complete the
relocation within 20 days.
Respondents also assert they should
be able to complete the replacement of chassis and compressors on
the individual air conditioners within 60 to 90 days.
In response
t~
the proposed plan, the Zarlengas state that
0135-0112
5
they agree to the immediate removal and relocation of the Zephyr
unit and clubhouse air conditioner.
The Zarlengas add that they
agree to respondents’ plan for the individual air conditioners
provided that the respondents agree to furnish the Zarlengas with
all of the data generated by Shiner in the preparation of the
proposed plan,
and to permit the Zarlenga’s expert to examine the
reconditioned units to determine whether the noise levels have
been adequately reduced or eliminated and whether the noise
reduction plan meets the requirements of the Board’s February 27,
1992 Opinion and Order.
The Zarlengas add that,
should the
modifications fail to reduce or eliminate the noise problem, the
parties will proceed with further measures and/or modifications
necessary to adequately reduce or eliminate the noise problem.
DISCUSSION
Because both parties agree with the proposed remedy, the
Board will grant respondents’ motion to amend the Board’s
February 27,
1992 Order in accordance with the approach and time
frames set forth in the motion.
The Board,
however,
emphasizes
that it is not,
in this order, making a determination on whether
the noise reduction resulting from the proposed remedy will be
acceptable.
The Board will also order the respondents to furnish
the Zarlengas with all of the data generated by Shiner in the
preparation of the proposed plan.
In order to avoid a situation
where the remedy is not initiated in a timely manner,
the Board
will also order respondents to cease and desist from violations
of Section 24 of the Act and 35
Ill. Adm.
Code ~900.l02 no later
than one year of the date of this Order.
Finally,
the Board wishes to take note of the Zarlengas’
comment that the parties will proceed with further measures if
the modifications fail to reduce or eliminate the noise problem.’
Although the Board does not object to any agreement between the
parties if the noise problem persists, we emphasize that the
Zarlengas must file another complaint if it believes that the
noise problem persists and the respondents do not agree.
This Opinion constitutes the Board’s findings of facts and
conclusions of law in this matter.
ORDER
For the foregoing reasons, the Board hereby orders
Bloomingdale Partners, Mr. Howard Edison, Mr. Bruce McClaren, and
Mr. Gary Laken to undertake and perform the following actions:
1.
Respondents shall remove and relocate the Zephyr unit
and the clubhouse air conditioner to the other side of
the building as proposed.
The relocation shall be
completed no later than 20 days from the date of this
order.
0135-of 13
6
2.
Respondents shall replace the chassis and compressors
on the
60 individual air conditioners servicing the 64
apartment units at One Bloomingdale Place that face the
Zarlengas’ town home.
The modifications shall be
completed as soon as practicable but,
in no event,
later than 90 days from the date of this order.
3.
Respondents shall furnish ‘the Zarlengas all of the data
generated by Shiner
& Associates in the preparation of
the proposed plan.
4.
The complete noise abatement program shall be in
operation not later than October 30,
1992.
5.
Respondents shall cease and desist from violations of
Section 24 of the Environmental Protection Act,
Ill.
Rev.
Stat.
1991,
ch.
111½, par.
1024,
and 35
Ill. Adm.
Code 900.102 effective upon attainment of compliance,
but in no case later than October 30,
1992.
Failure to
comply with the provisions of this order may subject
respondents to civil penalties.
IT IS SO ORDERED.
Section 41 ‘of the Environmental Protection Act,
Ill. Rev.
Stat.
1991,
ch.
111½ par.
1041, 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
Castenada v.
Illinois Human Rights Commission
(1989),
132 Ill.2d
304,
547 N.E.2d 437).
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the ahoy
Final Opinion and Order was
adopt~on the
‘e~Z day of
________________,
1992, by a vote
of
-0.
Dorothy M. p~n, Clerk
Illinois P~flutionControl Board
01 35-01
11~