ILLINOIS POLLUTION CONTROL BOARD
May 21, 1992
DON BOLENDER,’
)
Complainant,
)
PCB 91-136
(Enforcement)
V.
MONTICELLO BUS SERVICE,
WAYNE KRUGER,
President,
Respondent.
DON BOLENDER APPEARED PRO SE;
RON
SCHARF
ESQ.
AND
ALAN
SCHARF
ESQ.
APPEARED
ON
BEHALF
OF
RESPONDENT.
OPINION
AND
ORDER OF THE BOARD
(by J.
Anderson):
This matter comes before the Board on the August 14,
1991
filing of a formal complaint filed by complainant Don Bolender
(Bolender), against the respondent, Monticello Bus Service and
Wayne Kruger
(Bus Service), pursuant to Sections 9A,
23, and 24
of the Environmental Protection Act
(Act)
(Ill. Rev.
Stat.
1989
ch.
111 1/2, pars.
1009(A),
1023,
1024).
Bolender alleges that
excessive noise and odor emitted from respondent’s property
eliminate his family’s use of their patio and disturb their
sleep.
The public hearing was held on January 17,
1992.
BACKGROUND
The complainant owns and lives in a condominium complex
directly across the street from the Bus Service in Monticello.
(Coinpi. par.
6.)
Bolender moved into the condominium in 1988.
(Tr. 36-37.)
The Bus Service has been located in Monticello for
approximately 30-40 years and it has been owned by the present
owners since 1984.
(Tr.
6-7.)
Complainant alleges that the
noise and odor emanating from the Bus Service, while the charter
buses are left idling late at night, disturb the rest and sleep
of his family and eliminate the use of their patio.
(Compl.
par.
8.)
Bolender previously complained to the General Manager on two
occasions about noise emissions from the Bus Service.
Approximately one year ago, Bolender complained about the noise
l
The Board notes that the complainant’s name was misspelled
as
“Bolander”
on the
formal
complaint.
The case has been re—
captioned with the corrected spelling which was provided on January
17,
1992.
133—495
2
from a nighttime BUS Service employee basketball game taking
place in one of the storage facilities.
(Tr. 42.)
As a result,
the basketball hoop was removed, and no employee has played
basketball at the facility since that time.
(Tr. 42.)
Additionally, approximately one year ago, Bolender complained
about noise from the nighttime use of the blare horn on the
charter buses.
(Tr.
42.)
As a result of Bolender’s complaint, a
new policy was instituted and charter buses no longer sound their
blare horns when backing up .during the nighttime hours.
(Tr. 43—
44.)
APPLICABLE REGULATIONS
NOISE
Title VI of the Act contains the standards and procedures
for noise control.
Section 23 of Title VI sets forth the
legislature’s purpose of preventing noise that creates a public
nuisance.
Section 24 of Title VI prohibits any person from
emitting beyond his property noise that interferes with the
enjoyment of life or with any lawful business or activity.
This
is a “noise nuisance” action pursuant to Section 24.
Section 25
of Title VI sets forth the Board’s authority to adopt noise
regulations.
Sections 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 nuisance, 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.
These Sections of the Act have been implemented by the Board
in two ways.
First, the Board has adopted specific numerical
limitations on the characteristics of sound that may be
transmitted from source to receiver.
However, the complaint did
not allege a violation of the Board’s numerical standards and no
33—496
3
numerical test data were introduced.
The second method by which
the Board has implemented the noise provisions is found at 35
Ill.
Adm. Code 900.101 and 900.102 which provide as follows:
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.
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.
Thus, under the Act and the Board’s regulations, respondent has
caused a “noise nuisance” violation if the complainant meets the
standard of proof that an “unreasonable interference with the
enjoyment of life or with any lawful business or activity” has
occurred.
The pleadings, testimony and exhibits introduced by
the complainant must be analyzed according to this standard,
rather than according to specific sound emission levels.
ODOR
The Act, Board regulations and judicial interpretations
adopt a similar approach to controlling “odor nuisance” problems.
The Act defines and prohibits an unreasonable interference with
the enjoyment of life or property in Section 3.02 of Title
I and
Section
9 of Title II.
These Sections provide as follows:
Section 3.02
“AIR POLLUTION”
is the presence in the atmosphere
of one or more contaminants in sufficient quanti-
ties 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.
Section
9
No person shall:
a.
Cause or threaten to allow the discharge or emission
of any contaminant into the environment in any State
so as to cause air pollution in Illinois, either alone
or in combination with contaminants from other sources,
l~33—497
4
or so as to violate regulations or standards adopted
by the Board under this Act.
Ill.
Rev.
Stat.
1989,
ch.
111 1/2, pars.
1003.02 and 1009.
Board regulations at 35
Ill. Adm. Code Sections 201.102,
“Air
Pollution” and 201.141 “Prohibition of Air Pollution” contain
identical language to the Act.
Similar judicial interpretations
apply to the “unreasonable interference” odor and noise pollution
cases.
See: Incinerator.
Inc.
v. Pollution Control Board
(1974),
59 Ill.2d.290,
319 N.E.2d 794; Mystic Tape.
Div.
of Borden.
Inc.
v. Pollution Control Board
(1975), 60 Ill.2d 330,
328 N.E.2d 5;
Processinc~And Books v. Pollution Control Board
(1976),
64 Ill.2d
68,
351 N.E.2d 865.
Thus, the issue that must be considered in any noise or odor
complaint is whether the sounds or smells have caused an
unreasonable interference pursuant to the Act and Board rules.
This issue was addressed in Ferndale Heights Utilities Co.
v.
Pollution Control Board
(1976), 44 Ill.App.3d 962,
358 N.E.2d
1224.
The Board must consider the facts of the case in light of
the factors outlined by 33(c)
of the Act in determining whether
an unreasonable interference has occurred under the Act and Board
rules.
~.
at 967—68, 358 N.E.
2d at 1228.
The statutory factors
that must be considered are as follows:
(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.
Ill.
Rev. Stat.
1989,
ch.
111 1/2; par.
1033(c), as amended by
P.A.
86—1363,
S 2002,
1990 Ill. Legis.
Serv.
1979,
1989
(West),
effective Sept.
7,
1990.
133—498
5
Although the Illinois courts have held that these statutory
criteria shall be utilized in determining whether an unreasonable
interference with life or property has occurred, Wells
Manufacturing Co.
v. Pollution Control Board
(1978),
73 Ill.2d
226,
383 N.E.2d 148; Mystic Tape 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 Moninouth v.
Pollution Control Board
(1974),
57 Ill.2d
482,
313 N.E.2d 161, complainants need not introduce evidence on
all of these criteria.
Processing And Books
v. Pollution Control
Board
(1976),
64 Ill.2d 68,
351 N.E.2d 865.
COMPLAINT
The complaint alleges that the running of the diesel charter
buses causes excessive noise and odor.
The complaint also
alleges that the charter buses are left running for one to two
hours when they return at night from charter trips, and for 30 to
60 minutes before they leave for charter trips
in the morning.
The complaint further asserts that the most bothersome emissions
occur mainly between the hours of
8 p.m. to
6 a.m.
(Compl.,
pars.
6—7)
The
complaint
alleges that Bolender and his wife have
suffered
ill effects as a result of the noise and odor.
These
include the loss of use of their patio and the interruption and
loss of sleep.
(Compi.,
par. 8).
At issue in this proceeding are the noise and air emissions
that emanate from the Bus Service late at night when the charter
buses are being cleaned and inspected,
and early in the morning
when the charter buses are warming up.
The complainant owns a
condominium located directly across the street from the Bus
Service.
(Compl. par.
6.)
The respondent has 33 employees,
and
operates two bus services including charter bus services and
local school bus services.
(Tr.
175.)
Charter buses often begin
their morning departure schedule at 5:30 a.m.
(Tr.
118.)
In
order to do so,
it is critical that the buses are started and
left running 10 to 30 minutes prior to their departure.
(Tr.
119.)
Upon return from a trip,
the buses must undergo certain
procedures regardless of their arrival time.
The buses must
routinely have the rest room facilities pumped and dumped of
refuse, and must have a post—trip inspection.
(Tr. 120—121.)
These procedures generally take 15 to 30 minutes, and the engines
must remain idling throughout these processes.
(Tr.
121.)
Additionally,
if
a charter bus is scheduled for another trip
early the next morning,
it must be cleaned when it returns from
the previous trip.
The cleaning of all charters takes place
within the Wash Bay building.
(Tr.
121-122.)
The Wash Bay is an
insulated building that was constructed in December of 1987 in
order to decrease the noise emitted while buses were being
washed.
(Tr.
185—187.)
While the inside of the charter buses are
I
33—499
6
being cleaned, the engines must remain idling,
and the doors of
the Wash Bay must be open in order to prevent
the, accumulation of
fumes.
(Tr.
123-124.)
This procedure takes approximately 30
minutes to perform.
(Tr.
125.)
However, when the outside of the
buses are cleaned,
it is not necessary for the engines to be
idling.
The outside cleaning lasts approximately
15 to 30
minutes.
(Tr.
124—125.)
The public hearing on this matter was held on January 17,
1992.
Bolender was the only witness to testify on behalf of the
complainant.
Six witnesses testified on behalf of the
respondent.
HEARING
The complainant testified at the hearing that the noise and
fumes emitted from the Bus Service disturb his family’s rest and
sleep between the hours of 9:30 p.m. and 7:00 a.m.
(Tr. 38.)
Bolender asserted that his wife often finds it necessary to leave
the master bedroom in order to sleep.
(Tr. 53.)
Bolender
described the noise and odor to be most troublesome during the
summer months when the windows are often left open.
(Tr.
17.)
In support of his allegations, Bolender introduced two
letters into evidence that were written by neighbors, Clarence
Cross and Ralph and Kimberly Snavely, who also complain about the
air and noise pollution emitted from the Bus Service.
(Tr.
12.)
Mr. Cross rented the condominium directly next door to Bolender.
In his letter Cross stated that he would have bought the
condominium in August of 1990 but for the noise, dust and fumes
from the Bus Service.
(See Pet. Exhibit #1.)
The Snavelys
asserted in their letter that they live in the condominium across
the street from the Bus Service.
The Snavelys also asserted that
the noises from the Bus Service constantly keep them awake at
night, and that dust from the Bus Service accumulates in their
house.
(See Pet. Exhibit #2.)
Bolender also introduced two
letters into evidence that he wrote to Wayne Kruger, president of
the Bus Service, about the noise and air pollution.
One of these
letters was accompanied by a petition bearing six signatures
against the noise and air pollution emitted from the Bus Service.
(Pr.
13.)
Several witnesses testified on behalf of respondent.
(Tr.
63—224.)
Mr. George Geissler, the Mayor of Monticello,
testified
that he has lived at 1004 Surrey Road for
16 and 1/2 years.
Mr.
Geissler described this location as being
2 and 1/2 blocks west
of the Bus Service.
(Tr.
64.)
Mr. Geissler testified that he has
never had
a complaint about the B~sService, and that he thinks
its operations are beneficial to the community because of the
work opportunities that it provides.
(Tr. 66.)
133—50()
7
Ms.
Bette
Higgins
testified
that
she has lived at 626 West
Main Street for 11 and 1/2 years.
(Tr. 73-74.)
Ms. Higgins
described her house as part of the neighborhood that surrounds
the Bus Service.
(Tr. 73.)
Ms. Higgins testified that she.has
never had a problem with the noise and odors from the Bus
Service.
(Tr.
77.)
Ms. Higgins also testified that the
installation of the Wash Bay has decreased the noise emissions
considerably.
(Tr.
79.)
Finally, Ms. Higgins testified that she
believes the Bus Service is an asset to the community because of
the jobs it provides, and an asset to the local econo~nybecause
it
purchases
its
fuel
and
products locally.
(Tr. 79-80.)
Mr. Ray Funk testified that he has lived at 633 West Main
Street
for
25
years.
(Tr.
85)
Mr.
Funk
described
his
property
as being down the. street from the Bus Service, and next to the
condominium complex.
The condominium complex is located between
Mr. Funk’s property and the Bus Service.
(Tr. 85,
95.)
Mr. Funk
also testified that he has never had a problem with the noise or
odor from the Bus Service.
(Tr. 87.)
Mr. Funk testified that he
had no problems with noises or odors even when the lot in which
the condominium complex was to be built was empty for two months
before construction began.
(Tr. 95-96.)
Finally, Mr. Funk stated
that he thinks the Bus Service is an asset to the community and
the local economy because of the jobs it provides and because it
buys its necessities locally.
(Tr. 89.)
Mrs. Vernice Funk testified that she has lived in the area
of the Bus Service for 43 years.
(Tr.
99.)
Mrs. Funk also
testified that during the two month period when the condominium
lot was empty,
she had no problems with the noise or odor from
the Bus Service.
(Tr.
100.)
Finally, Mrs. Funk testified that
the Bus Service is an asset to the City of Monticello.
(Tr.
101.)
Mr. Michael Butler testified that he has lived at 1106 North
Union Drive for
12 years.
(Tr. 102.)
Mr. Butler asserted that he
is currently employed by the Bus service and has been for eight
years.
(Pr.
102.)
Mr. Butler stated that he works as a
supervisor of employees and school bus drivers.
(Tr.
103.)
Mr.
Butler testified that 80
of the time the buses are cleaned
during the day.
(Pr.
128.)
He explained that the company prefers
to clean the buses during the daytime hours in order to avoid the
nighttime noise and having to pay employees overtime.
(Tr.
130.)
Mr. Butler testified that as a result of Bolender’s complaint
about a year ago regarding the blare horn usage,
the drivers no
longer use their horns when backing up during nighttime hours at
the Bus Service.
(Pr.
134.)
Additionally, Mr. Butler explained
that the basketball hoop has been removed and employees no longer
play basketball on the premises because of Bolender’s noise
complaint over
a year ago.
(Tr. 135-136.)
Mr. Butler testified
that Bolender’s recent noise complaints have resulted in the
enactment of a company policy regarding the running and idling of
the buses.
The drivers can only leave their buses idling for as
1
33—501
8
long as is absolutely necessary for the build up of air and the
generation
of
air
conditioning
or.heat.
(Tr.
136-137.)
Finally,
Mr.
Butler
testified
that
to
his
knowledge,
all
vehicles
at
the
Bus
Service
meet
all
state,
federal
and
EPA
standards
regarding
emission tests and noise problems.
(Tr.
153.)
Mr Jim Pownall testified that he has been employed by the
Monticello Bus service as General Manager since July of 1984.
(Tr.
173—174.)
Mr.
Pownall
explained
that
the
installation
of
the
insulated
Wash
Bay
in
1987
has
decreased
the
noise
emitted
while
the
buses
are
being
washed.
(Tr.
187.)
He
testified
that
the Bus Service paid $30,000 to insulate a small portion of the
Wash Bay building.
(Tr. 187.)
Mr. Pownall also testified that
the Bus Service spent approximately $773,827 operating its
service
in
the
year
of
1990,
and
explained
that
this
estimate
is
somewhat
low
because
not
all
expenditures
were
included.
(Tr.
215—216.)
Mr.
Pownall
testified
that
the
company
is
financially
incapable
of
relocating
or
currently
spending
more
money
for
new
buildings
or
for
equipment
and
materials
to
further
reduce
noise
levels
or
emissions.
(Tr.
218,
219.)
Respondent also introduced 11 affidavits into evidence which
were
written
by
Monticello
residents
who
live
in
close
proximity
to the Bus Service.2
Tr.
6.)
Bruce and Melody Pinks stated that
they live behind the Bus Service, approximately 100 feet from the
operation.
The Pinks asserted that they have never had any
problems with noises or odors from the Bus Service, and that they
believe that the Bus Service is an asset to the local community.
(See Resp. Exhibits #s 1,2.)
Jack and Lucille Carron stated in
their affidavits that they are the closest neighbors of the Bus
Service, and that the operation is located approximately 70 feet
from their bedroom window.
Additionally, the Carron stated that
their
screen
porch
is
70
feet
from
the
Bus
Service,
and
that
they
eat two—three meals
in the porch during the spring and summer
months.
The Carron claimed that they have never had problems
with noise or odor from the Bus Service, and that they think the
company is an asset to the local community.
(See Resp.
Exhibits
#
3,4.)
Fred, Bev, Richard and Carolyn Erickson asserted that
they lived in the same condominium complex as the complainant
from August 1990 to June 1991.
The Ericksons stated that Carolyn
slept in the second floor bedroom facing the Bus Service while
they
lived
in
the
condominium
complex.
The
Ericksons
asserted
that
they
never
had
a
problem
with
noises
or
odors
from
the
Bus
Service,
and
that
they
think
the
company
is
an
asset
to
the
local
community.
(See Resp.
Exhibits #s 5-8.)
Mildred Wrench stated
that she lives in a one story house across the street from the
Bus Service, approximately 100 feet away from the operation.
Ms.
2
The Board
notes that one of the affidavits submitted by
respondent was written by Beverly Erickson whose name also appeared
as a signature on Bolender’s petition.
I
33—502
9
Wrench asserted that she has never had any problems with noise or
odors from the Bus Service, and that she thinks the company
is an
asset to the local community.
(See Resp.
Exhibit #9.)
Penny
Norfleet explained that she lives in the apartment complex that
is located behind the Bus Service and approximately 50 yards from
the company.
Ms. Norfleet stated that she has never had a
problem with the noise or odors from the company,
and that she
thinks the Bus Service is an asset to the local community.
(See
Resp. Exhibit #10.)
Mr.
George Geissler asserted that he lives
approximately two and a half blocks from the Bus Service, and
that. he has never had a problem with noises or odors.
Additionally, Mr. Geissler stated that he thinks the Bus Service
is an asset to the local community.
(See Resp.
Exhibit #11.)
Finally, respondent introduced one letter written by Mr. Ralph E.
Shafer,
a neighbor of the facility, who claimed that no air or
noise pollution problems exist.
(See Resp.
Exhibit #12.)
SECTION 33(c)
FACTORS
As earlier noted, the question of unreasonable interference
must be considered in light of the factors set forth in Section
33(c) of the Act.
Regarding Character and Degree of Injury, the record
contains testimony that the noise and odor emanating from the Bus
Service routine from the emptying of the refuse tanks,
inspections of the charter buses, and the periodic washing of the
charter buses,
all between the hours of 9:30 p.m. to 7:00 a.m.
disturb the rest,
sleep and outdoor activities of the Bolenders
and, by letter, of two other residents.
The Bolenders have
experienced “intermittent sound of a disturbing nature”, and the
record indicates that they have endured these disturbances for
four years.
(See Kali, PCB 80-46 at 3.)
However, the Board notes
that nearby residents testified that they have never had any
complaints about or problems with the Bus Service.
(Tr. 63-224.)
The Board also notes that the respondent introduced 11 affidavits
and one letter into evidence written by neighbors who have never
had problems with or complaints about the Bus Service.
(Tr. 61.)
Regarding the Social or Economic Value of the Source, the
Monticello Bus Service is of substantial social and economic
benefit to the community.
The Bus Service provides employment
for 33 people and spends approximately $774,000.
annually.
(Tr.
214-216.)
Additionally,
it is the policy of the Bus Service to
buy fuel and necessities locally if possible.
(Tr.
213.)
Also,
all of those submitting affidavits on behalf of the respondent
believe the Bus Service is an asset to the local community.
Regarding Suitability or Unsuitability of the Source and
Priority of Location, the record does not indicate that the
complainant’s or respondent’s land use is inconsistent with local
zoning.
The record does not indicate that the noise and odor
133—503
10
emissions have arisen or increased since the complainant acquired
his property.
The record indicates that no complaints about
noise or odor were made until Bolender complained.
The
respondent has priority of location, having operated the Bus
Service at the present location approximately three years before
the complainant moved into the area.
Regarding Technical Practicability and Economic
Reasonableness
of. Control,
it appears to be impossible to totally
eliminate the noise and odor emissions without ordering that the
facility be closed or moved.
Complainant explains that he is not
asking that the Bus Service be completely closed down.
Bolender
suggests that the Bus Service be closed at the current location
and moved to a different location, or that it make some
corrections to its operation at the current location.
(Tr. 23.)
The Bus Service has already addressed Bolender’s concerns by
implementing changes that lessen the emissions.
(Tr. .42-44,
134—
137)
Mr. Pownall testified that one of the factors in building
the insulated Wash Bay was to muffle the noise that was caused
from washing the buses outside.
(Tr.
186.)
Mr. Butler testified
that it is not feasible to completely close the doors to the Wash
Bay when the buses are being washed because the engines are
idling and fumes are accumulating.
Mr. Pownall testified that
the company is financially unable to relocate or presently spend
more money than it already has.
(Tr. 218—219)
Regarding Subsec~uentCompliance,
the Bus Service has
implemented some measures to address the noise and odor problems
in addition to those instituted in response to Mr. Bolender’s
prior complaints.
After Bolender’s recent noise complaints were
made, the Bus Service instituted a policy of allowing charter
buses to remain idling only as long as is absolutely necessary
for them to warm up and to maintain heating and air conditioning.
(Pr. 136—137.)
BOARD CONCLUSION
The noises and odors from the Bus Service disturb the
Bolenders’
rest,
sleep and patio use.
However,
a number of
neighbors,
by affidavit, were not disturbed.
The social and
economic value of the Bus Service has not been challenged.
The
respondent’s land use is consistent with local zoning, and
regarding the question of priority of location, the record shows
that the Bus Service was located across the street from the
condominium complex when Bolender moved in, and the present
owners operated the Bus Service for approximately three years
before the complainant acquired his property.
The Bus Service
has been responsive to the previous noise complaints of Bolender,
and has worked since this complaint to reduce the noise emissions
by constructing the insulated Wash Bay building and by
instituting company policy allowing charter buses to remain
idling only as long as
is absolutely necessary.
Finally, we are
I
.~35~4
11
persuaded that it would not be economically reasonable to close
down the Bus Service at the present location and move the
operations to a new area, or,
on balance, to sufficiently improve
upon the existing facility.
Therefore,
after full consideration of all of the facts and
circumstance in the record, and in light of the Section 33(d)
factors,
the Board finds that the noise and odor from the Bus
Service does not constitute an unreasonable interference with the
Complainant’s enjoyment of life and lawful activity in violation
of Section 9A and 24 of the Act.
The Board accordingly dismisses
this action.
This opinion constitutes the findings of fact and
conclusions of law of the Board in this matter.
ORDER
For the foregoing reasons,
the Board having found no
violation in this matter, this case is hereby dismissed.
IT IS SO ORDERED.
Section 41 of the Environmental Protection Act,
Ill. Rev.
Stat.
1989,
ch.
111 1/2, par.
1041, provides for the appeal of
final orders of the Board within 35 days.
The Rules
of the
Supreme Court of Illinois establish filing requirements.
I, Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify that the above opinion and order was
adopted on the
~i~J
~
day of
,~7n
‘-~-~
,
1992,
by
a vote
of
______________.
~
/‘L.
Dorothy ~
Clerk
Illinois ~bllution Control Board
I
33—505
