ILLINOIS POLLUTION CONTROL BOARD
April 15, 2004
DAVID and JACQUELYN MCDONOUGH,
Complainants,
v.
GARY ROBKE,
Respondent.
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PCB 00-163
(Citizens Enforcement - Noise)
ORDER OF THE BOARD (by T.E. Johnson):
This case is before the Board on a motion to extend the stay filed by Gary Robke (Robke)
on March 1, 2004. On March 11, 2004, David and Jacquelyn McDonough (complainants) filed a
response to the motion. For the reasons set forth below, the Board grants Robke’s motion.
BACKGROUND
The complainants filed a complaint against Robke on March 27, 2000, alleging that
Robke violated noise nuisance provisions under Section 24 of the Environmental Protection Act
(Act) (415 ILCS 5/24 (2002)) and Section 900.102(a) of the Board regulations. 35 Ill. Adm.
Code 900.102(a). The complainants asserted that the violations were caused by Robke’s
operating a 24-hour self-service car wash in Mascoutah, Illinois. The complainants stated that
noise generated by the car wash equipment, patrons, and their vehicles unreasonably interferes
with complainants’ enjoyment of life and property.
On March 7, 2002, the Board issued an order finding Robke in violation of Section 24 of
the Act. 415 ILCS 5/24 (2002). On February 6, 2003, the Board issued an order directing Robke
to, inter alia, construct an airtight barrier of uniform elevation that ran contiguously on the
southern and western property line of the car wash. The barrier was required to be 12 feet high,
consisting of a six-foot high berm topped with an airtight six-foot high fence constructed of a
solid material with a minimum density of one pound per square foot. Robke was given 180 days
to construct the wall.
See
McDonough v. Robke, PCB 00-163 (Feb. 6, 2003).
On September 4, 2003, the Board issued an order that stayed paragraph 3 of the
February 6, 2003 order (requiring the construction of a noise wall and berm) until March 1,
2004. The Board directed the parties to participate in status conferences with the hearing officer
every 30 days during the pendency of the stay, and noted that Board will consider whether
Robke has made good faith efforts toward expeditious abatement of this noise nuisance when
considering any further motions for an extension of the stay.
MOTION
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In the instant motion, Robke asserts since the imposition of the stay, the parties have
worked in good faith to resolve the dispute regarding the location of the noise wall, having met
with the City of Mascoutah and obtained a proposal from the City engineers regarding relocation
of the noise wall. Mot. at 1-2. Robke contends he received the City’s proposed relocation of the
noise wall on December 14, 2003, and has been in discussion with the City on the issue since
that time. Mot. at 2.
Specifically, Robke asserts that discussion with the City have involved: (1) modifying
the engineering proposal; (2) the purchase by the City of additional ground to widen the
easement and take over the berm; and (3) whether financial assistance from the City in the form
of a tax abatement or direct financing to assist in the cost of the project is possible. Mot. at 2.
Robke contends that the City has recently suggested that Robke should submit its concerns,
comments or revisions in writing to the City for further consideration.
Id
.
Robke asserts that in the interim, it has disarmed the beepers and replaced the motors in
the vacuums with quieter motors as directed by the Board and has taken other steps to mitigate
the noise emitting from its operations. Mot. at 2-3. Robke asserts it has participated in good
faith in all of the status conferences held by the Board hearing officer, and requests an additional
stay of 180 days to allow the parties to finalize a proposed resolution in this matter. Mot. at 3.
The complainants request that the motion to extend the stay be denied, and further ask
that the Board order construction of the noise barrier in an alternate reasonable and necessary
location within 90 days. Resp. at 1. The complainants state that the City indicated in a June
16, 2003 letter that underground utilities and electrical pedestals in the area could prohibit
construction of the noise wall in the location ordered by the Board, but that the City was willing
to work with the parties to find a solution.
Id
.
The complainant asserts that after an August 10, 2003 meeting with the parties, the City
agreed to develop a plan for constructing the noise barrier to minimize interference with City
utilities. Resp. at 1. The complainants assert that on December 14, 2003, the City proposed an
approved plan for the noise wall that requires construction of the wall in the general location
initially requested by complainants. Resp. at 2. The complainants assert that the available land
for expansion of the car wash is limited, but that expansion potential on the north side of the car
wash will be unaffected by the location of the noise wall.
Id
. The complainants assert that in the
motion, Robke indicates a willingness to have the City buy property to the south for expansion
and share costs in the project. The complainants asserts that expansion on the south side of the
car wash would bring the unreasonable noises closer to their property, home and bedroom.
Id
.
The complainants argue that it is unclear that expansion at the car wash would provide
any significant benefits to the car wash or the community, as it would enlarge capacity but
provide no new customer service. The complainants argue that the wide-base requirements for a
fence on top of the berm-type noise wall likely would have precluded future south expansion, as
planned, even had the noise wall been located on the southern property line of the car wash.
Id
.
The complainants ask, in light of new findings, that the Board reconsider the decision that
it would not be reasonable or necessary to locate the noise wall near the car wash. Resp. at 2.
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The complainants contends that any additional delay in completing the noise barrier would,
particularly with the peak business season approaching, be extremely detrimental to their quality
of life.
Id
. Accordingly, the complainants request that the Board order Robke to construct,
within 90 days, the noise wall as previously ordered but in a location north of the southern
property line as approved by the City. Resp. at 2-3. The complainants argue that any
agreements between Robke and the City regarding cost sharing for the project can be decided
during the permit and construction process.
DISCUSSION
In Nielsen & Bainbridge v. IEPA, PCB 03-98 (Feb. 6, 2003), the Board found that
motions to stay must be accompanied by sufficient information detailing why a stay is needed.
The Board has discretion whether to grant or deny a motion for stay of a final Board order.
See
People v. ESG Watts, Inc., PCB 96-107 (Mar. 19, 1998); Village of Matteson v. World Music
Theatre,
et al,
PCB 90-146 (Mar. 25, 1993).
In granting the stay on September 4, 2003, the Board recognized that the record was
unclear as to whether a variance from City of Mascoutah would be necessary, or obtainable,
prior to the construction of a noise wall, and stated that Robke could attempt to modify the Board
order as required. McDonough v. Robke, PCB 00-163, slip op. at 5-6, (Feb. 6, 2003). Further,
the Board gave Robke leave to file for an extension of the stay if necessary.
Robke has provided sufficient information detailing the need for a stay in this instance,
and the Board grants the motion for an additional stay of 180 days. Robke appears to be
operating in good faith, and is attempting to resolve the City’s concerns with the location of the
noise wall. In addition, the complainants do not dispute that Robke has taken steps as ordered by
the Board to mitigate the noise from its operations, and has disarmed the beepers and replaced
the motors in the vacuums with quieter motors. Robke has also participated in regular Board
status conferences with Hearing Officer Sudman.
The Board is, however, cognizant of complainants’ concerns. Although Robke is
progressing toward the ultimate construction of a noise wall as ordered by the Board, significant
time has elapsed since the Board initially found Robke in violation of the Act in March 2002.
Barring any unforeseen circumstances, the Board will not grant further stays in this matter.
Robke is expected to have the noise wall constructed on or before September 1, 2004.
CONCLUSION
As discussed above, paragraph three of the Board’s February 6, 2003 order is stayed until
September 1, 2004. The parties are directed to participate in status conferences as ordered by the
hearing officer during the pendency of the stay.
IT IS SO ORDERED.
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I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above order on April 15, 2004, by a vote of 4-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
