ILLINOIS POLLUTION CONTROL BOARD
May 9,
1991
JOHN ZARLENGA and
)
JEAN ZARLENGA,
)
Complainants,
v,
)
PCB 89—169
(Enforcement)
PARTNERSHIP CONCEPTS,
HOWARD EDISON,
BRUCE NCCLAREN,
COVE DEVELOPMENT COMPANY,
THOMAS O’BRIEN, BLOOMINGDALE
PARTNERS, an Illinois Limited
Partnership, and
GARY
LAKEN,
Respondents.
JAMES
N.
LOCKWOOD
APPEARED
ON
BEHALF
OF
COMPLAINANT,
AND
NORMAN
B.
BERGER
APPEARED
ON
BEHALF
OF
RESPONDENT.
INTERIM
OPINION
AND
ORDER
OF
THE
BOARD
(by
J.
Anderson):
On October 23,
1989, John Zarlenga and Jean Zarlenga
(“Zarlenga”)
filed
a formal noise complaint with the Board.
Such complaint named Partnership Concepts, Howard Edison, Bruce
McClaren, Cove Development Company, and Thomas O’Brien as
respondents.
Two hearings were held on July 9 and July 24,
1990,
in Wood Dale,
Illinois.
The Zarlengas and the respondents filed
their post-hearing briefs
on September 28,
1990.
In their complaint, the Zarlengas allege that the air
conditioning units,
generators,
fans,
and swimming pool
dehumidifier located at the respondents’ apartment complex emit
excessive noise beyond the boundaries of the complex in violation
of Section 24 of the Environmental Protection Act
(Ill. Rev.
Stat.
1989,
ch.
111½, par.
1024)
(“Act”)
BACKGROUND
On March
4,
19.87,
the Zarlengas closed on the purchase of a
new townhome at 23 Country Club Drive, which is on the southwest
corner of the intersection of Country Club Drive and Royal Avenue
in Bloomingdale,
Illinois.
(R.
21; Exs. A,
B).
The townhome was
constructed pursuant to a real estate contract that was executed
by the Zarlengas some time between March and August of 1986.
(R.
21)
Subsequent to the time that the Zarlengas purchased their
townhome, the respondents constructed One Bloomingdale Place,
an
eight-story apartment complex.
The complex is located at Schick
Road and Country Club Drive and is north of the Zarlengas’
122—45
2
townhome, across Royal Avenue.
(Ex.
B).
The complex contains
168 apartments which house approximately 300 residents.
(R.
441,
574).
Construction of the bui1din~began in the Fall of 1986 and
was completed in December of 1988.
(~.
575).
The building was
first occupied in April,
1988, and was fully occupied by
February,
1989.
(~.
441—42,
577).
The building is owned by
Bloomingdale Partners,
a limited partnership in which Mr. Howard
Edison, Mr. Gary Lakin,
and Mr.
Bruce McClaren are the general
partners.
(~.
570,
571).
All of the apartments in the complex have balconies, and
permanently affixed heating/air-conditioning units which weigh
900 pounds each.
(~4.
244).
Between 60 and 65 units face Royal
Avenue and the Zarlengas’ property.
(~.
38, 458,
539).
The
building has an indoor pool and a clubhouse on its first floor.
(Resp.
Br.
p.
2).
The pool area and clubhouse are cooled by a
dehumidifier, known as the Zephyr unit, and another heating/air
conditioning unit.2
(R.
34,
36,
463).
Although the Zephyr unit
is located inside the complex and does not exhaust to the
outside, the heating/air-conditioning unit which has one
condenser fan and a heat exchanger, a condensing unit which
consists of two fans and a coil,
and two four—inch exhaust flues
for the pool and spa boilers are located outside and along the
south side of the building facing Royal Avenue and the Zarlengas’
property.
(~.
35,
463,
540, 542,
545, 557—58).~ A three foot
fence and shrubs surround the heating/air conditioning unit.
~
69—70,
73,
469—470,
532,
545)
On or about March 22,
1988,
Mr. Zarlenga approached Mr.
Thomas O’Brien,
one of the architects of the building to express
his concern about the noise levels from the building.
(a.
41,
82).
After several conversations with Mr. O’Brien, Mr. Zarlenga
1Respondent’s
brief
and
certain
testimony
indicate
that
construction was completed in the Spring (March) of 1988.
(R. 468;
Resp.
Br.
p.
1).
2There is some confusion as to which units are associated with
the
pool
and clubhouse
area.
The respondents,
in their post—
hearing
brief,
state
that
the
dehumidifier
and
another
air
conditioning unit are known
collectively
as the
“Zephyr”
unit.
(Resp.
Br.
p.
2).
The Zarlengas, on the other hand,
refer to the
Zephyr unit and a dehumidifier unit as separate units.
(Comp.
Br.
p.
1).
Certain testimony, however,
leads us to conclude that the
dehumidifier unit is the same as the Zephyr unit.
(R.
35,
540).
3There
is
a
great
deal
of conflicting testimony regarding
which equipment is on the outside of the complex, which equipment
exhausts to the outside of the complex,
and which
equipment
is
responsible for the noise emissions.
(R.
34—36,
463,
540,
545,
558)
122—46
3
was told to contact Mr.
Edison, one of the owners of the
property.
(~.
43-45).
Mr. Zarlenga talked with Mr. Edison on
several occasions,
and contacted the Village of Bloomingdale in
an attempt to resolve the problem before filing the formal
complaint with the Board on September 5,
1989.
(~.
45-48,
50-
51,
56,
59).
PRELIMINARY MATTERS
The Zarlengas originally named Partnership Concepts, Howard
Edison, Bruce McClaren, Cove Development Company, and Thomas
O’Brien as respondents in their complaint.
On October 26,
1989
respondents moved to dismiss Cove Development Company and Mr.
O’Brien as respondents.
On December 6,
1989, the Board issued an
order stating that it would not dismiss the respondents and that
it would not address the issue of whether the two respondents
violated Section 24 of the Act until after full development of
the record at hearing and the submission of post—hearing
arguments.
The motion was raised again at the hearing.
(~.
591).
The Hearing Officer reserved the issue for the Board but
allowed the Zarlengas to add Mr. Gary Lakin and Bloomingdale
Partners as respondents.
In their post-hearing brief, the respondents argue that the
evidence at hearing indicates that Cove Development Company, Mr.
O’Brien, and Partnership Concepts do not own and have no interest
in One Bloomingdale Place.
(Resp.
Br.
p.
1).
Specifically,
respondents argue that Cove Development Company was the general
contractor for the construction of the complex, that Mr. O’Brien
is one of the principals of Cove Development Company, and that
Partnership Concepts is an entity in which Mr. Edison is a
partner but which does not own or operate the complex.
(u.).
Respondents also argue none of the three respondents contributed
to the sound emissions at issue.
(Id.).
At hearing Mr. Edison testified that he, Mr.
Laken,
and Mr.
McClaren are the three general partners in a 40 to 50 member
partnership
(i.e.
Blooiningdale Partners) that owns One
Bloomingdale Place.
(R.
579).
He also confirmed that neither
Partnership Concepts, Cove Development Company, nor Mr. O’Brien
own Or operate the complex.
(Id. 570-71,
579-80).
Specifically,
Mr. Edison testified that Cove Development Company was the
general contractor for the project and that Mr. O’Brien is one of
the principals of the company.
(~.
580).
He added that he and
Mr. McClaren are also members of Partnership Concepts,
a general
partnership through which limited partnerships are formed, but
which does not have any interest in One Bloomingdale Place.
~
580,
583).
As previously stated, the Board issued an order on December
6,
1989,
that,
in part, denied respondents’ motion to dismiss Mr.
O’Brien and Cove Development Company from this action.
The Board
122—4
7
4
stated that Mr.. O’Brien’s affidavit asserting that neither he nor
Cove Development Company owns, operates, or otherwise occupies
the property fell “far short of affirmatively stating that either
individual respcndent has absolutely no interest in the property
and has engaged
in no activity with respect to the property which
would have resuilted in offending noise emissions”.
(see p.
3 of
that Order).
in light of Mr. Edison’s testimony and the fact
that the Zarlengas’ did not effectively rebut it, the Board will
dismiss Partne~•~~hip
Concepts,
Cove Development Company, and Mr.
O’Brien as parties to this action.
However, Bloomingdale
Partners, Mr. K~dison,Mr. McClaren, and Mr.
Laken will remain as
the named party respondents.
APPLICABLE
LAW
Title
VI
of
the
Act
establishes procedures and standards for
noise control..
Section 23 sets forth the legislature’s purpose
of preventing noise which causes a public nuisance.
Section 24
prohibits emitting noise beyond one’s property which unreasonably
interferes with the enjoyment of life or lawful activities in
violation of Board rules or standards.
The Board’s authority to
adopt noise regulations is found in Section 25.
Sections
2.3 and 24 of Title VI provide as follows:
SectL~.n23
The G~nera1Assembly 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
122—48
5
transmitted from source to receiver.
Second, the Board has
adopted the following general “narrative” standard at 35 Ill.
Adm. Code 900.102:
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.
Noise pollution is defined at 35 Ill.
Adm. Code 900.101 as:
Noise pollution:
the emission of sound that
unreasonably interferes with the enjoyment of
life or with any lawful business or activity.
In effect, these two sections adopt regulatory public
nuisance provisions for noise control using the statutory phrase
“unreasonable interference with the enjoyment of life or with any
lawful business or activity” as the standard.
The Zarlengas’
pleadings, testimony,
and exhibits are founded in this public
nuisance theory, rather than in terms of numeric noise levels
that exceed the Board’s numeric sound emission levels.
Sections 900.101 and 900.102 were given judicial
interpretation in Ferndale Heights Utilities Company v.
Illinois
Pollution Control Board and Illinois Environmental Protection
Agency,
41 Ill.
App.
3d 962,
358 N.E.2d 1224
(1st Dist.
1976).
In that case, the First District Court held the regulatory
language to be constitutional since sufficient standards could be
comprehended from reading Section 24, the Board’s regulations,
and the guidelines for enforcement cases found in Section 33(c)
of the Act.
The court affirmed the Board’s finding of
unreasonable interference with the enjoyment of life,
in light of
adequate testimony describing the noise; explaining the type and
severity of the interference caused by the noise; and indicating
the frequency and duration of the interference.
Despite
conflicting testimony,
the court upheld the Board’s finding that
the interference was unreasonable.
TESTIMONY REGARDING NUISANCE
At hearing,
several witnesses testified on behalf of the
Zarlengas.
First,
Mr. Zarlenga characterized the noise as a
“loud rumbling sound” that occurs 24 hours a day, and stated that
it had the following effect:
You can’t sleep because of the noise.
You can’t live
122—49
6
(sic)
inside the house because of the noise.
You can’t
have anybody sitting on the patio because of the noise.
(R.
39—40).
Mrs. Zarlenga, on the other hand, described the sounds emanating
from One Bloomingdale Place as “rumbling, humming noises” that
are “continuous and monotonous”.
(~.
125).
She also stated
that the noise had the following effect:
It’s made my life miserable.
I cannot use my deck.
I
cannot have company over.
.
.
.1 can’t open my windows in
my bedroom.
I toss and turn all night.
If I am
fortunate enough to be able to fall asleep from being
dog tired from the previous three days from not
sleeping, either the dehumidifier or the Zephyr goes on
or some of the air conditioners go on.
(Ic~,. 126)
Mr. Zarlenga’s parents, both of whom have lived with the
Zarlengas since March,
1987,
also testified at hearing.
Mr.
Zarlenga’s father, John Sr., characterized the noise as a “loud
humming sound” that continues throughout every night during the
summer, and stated that he often sleeps in the basement because
of the noise.
(~.
119).
He also stated he must put on ear
pho~nesto listen to the television or,
if he is not watching
television, go downstairs every night in the summer.
(~4.
119-
20)
.
Mr. Zarlenga’s mother,
Esther, characterized the noise as a
constant “rumbling sound”.
(~.
122).
She also stated that she
can not stay in her bedroom or open the windows and that she has
to spend time in the basement of the townhoine.
(a.).
Two of the Zarlengas’ neighbors also testified at hearing.
Ms.
Danuta Bruekmannn, who resides in the townhome on the south
side of the Zarlengas’ townhome
(i.e.
22 Country Club Drive),
des~,cribedthe sound as a “winding noise”, and stated that she can
not open her windows at night.
(j~.
96,
100).
She also stated
as
follows:
I can hear it every day.
You can hear it through
closed windows.
I am muffled because of them next door
to me.
But at night when it is quiet out you can hear
it with the windows closed.
During the day I hear day
noises, you hear cars, people.
It is completely
different at night,
because it is so quiet.
But you
can hear all the air conditioners.
(Id.
101)
Ms. Victoria Gazda, whose home is located at 72 Fountaine
Court,
which is one block west of the Zarlegas’ townhome in
122—50
7
another subdivision in the area of One Bloomingdale Place,
also
testified.
She characterized the sound as a “humming noise and
.an unusual noise” that occurs constantly and stated that she can
hear the noise in her kitchen and i~pstairsbedroom.
(~.
109).
Mr. Gregory T.
Zak, who has been a Noise Technical Advisor
with the
.
Illinois
.
Environmental Protection Agency during the past
18 years,
also testified on behalf of the Zarlengas.
Although
Mr. Zak testified that he had never visited the area, heard the
noise,
interviewed people in the area, or taken sound
measurements, he stated that he believed that there was a “very
high likelihood of a noise problem being generated”.
(~.
172,
190-91,
199-201).
Mr. Zak testified that his conclusion was
based upon the testimony at hearing, his experience,
the facts of
the photographs presented into evidence, and the information
supplied by the manufacturers of the offending units.
(~.
171-
72).
Mr. Zak also testified that the design of the apartment
complex enhances the noise effect of the individual air—
conditioning units and the units associated with the pool and
clubhouse.
(~4.
172).
Specifically, Mr.
Zak testified that the
configuration of the building is very similar to that of a loud
speaker or a rough parabolic shape and that, as a result of the
building being high and having multiple sound sources on it,
.sound is focused at a point in front of the structure..
(~.
168,
236).
With regard to the acoustical effect of the simultaneous
use of the individual air-conditioning units and other noise
sources,
Mr. Zak explained that each unit has an exhaust fan and
that the fans run slightly out of phase when they are turning.
(~.
170-71).
He added that,
as a result,
there is constructive
and destructive interference of the sound waves that can best be
described as a throbbing or a very low frequency noise.
(~.).
Ms.
Cathy Macaione, the building manager of the complex who
has also lived on the northwest side of the building since August
of 1988, testified on behalf of the respondents.
(R.
440,
459).
With regard to the individual air conditioning units, she stated
that, when her windows are open and she is in her middle room or
bedroom, she can hear continuous airplane noise
(i.e.
every 15 or
20 minutes) and children yelling during baseball games in a
nearby baseball field.
(3~.
459—61).
She also stated that, when
she is in her bedroom with the window open,
she can hear an air
conditioning unit that is opposite the window when
it turns on
and off.
(u.).
She added, however, that the noise from the
airplanes .rather than individual air conditioning units at the
complex interfere with her use and enjoyment of her property.
(~.
460).
She also stated that the majority of residents are
not at the complex at the same time because many of them travel
and that,
as a result, many of the individual air conditioning
units are off.
(~.
457—58,
533).
Finally,
she stated that,
to
her knowledge, there have been no complaints from either the
residents of One Bloomingdale Place or the neighbors of the
complex
(other than the Zarlengas) regarding the complex’s noise
122—5
1
8
levels.
(id. 461—62).
FINDING OF INTERFERENCE
The Unreshold issue in any noise enforcement case is whether
the sounds ~havecaused some type of interference with the
complainants’ enjoyment of life or lawful business activity.
Interference is more than an ability to distinguish sounds
attributabLe to a particular source.
Rather, the sounds must
objective1~ affect the complainants’ life or business activities.
Zivoli v. iMve Shop,
PCB 89—205,
p.
7
(March 14,
1991); Kvatsak
v.
St. Michael’s Lutheran Church, PCB 89-182,
114 PCB 765,
773
(August 3Q~, 1990); Kochanski v. Hinsdale Golf Club,
PCB 88—16,
101 PCB
11.,
20—21
(July 13, 1989),
rev’d on other grounds,
197
Ill. App. 3d 634,
555 N.E.2d 31 (2d Dist.
1990).
Moreover,
testimony to the effect that the sound constitutes an
interference solely because it could be heard is insufficient to
support a
ifinding beyond a “trifling interference, petty
annoyance cr minor discomfort.”
Wells Manufacturing Company v.
PCB,
73 ILI.2d 226,
383 N.E.2d 148,
150
(1978).
Althot~ghMs. Macaione testified that the noise from the
apartment complex did not interfere with her use and enjoyment of
her property, the Board notes that Ms. Macaione’s apartment was
located in
a substantially different location than the Zarlengas’
townhome.
Specifically, Ms. Macaione’s apartment was located in
One Bloomiingdale Place while the Zarlengas’ townhome was located
a distance away from and in between two wings of the complex
(i.e. a point in front of the complex where sound was focused).
Moreover, the fact that Ms. Macaione received no other complaints
than from the Zarlengas does not mean that the Zarlengas and
their neighbors were not bothered by the noise.
Rather,
the
evidence elicited on behalf of the Zarlengas establishes that the
noise emitted from One Bloomingdale Place seriously interferes
with the Zarlengas’
enjoyment of life.
The Board will evaluate
the factors in Section 33(c) of the Act to determine if such
interference is unreasonable.
It shciuld be noted before continuing, that respondents
introduceI evidence of decibel
(dB) readings.
It is
inappropriate, however, to use numerical data to show compliance
with the noise nuisance regulatory standard.
The Board
previously addressed this issue in Will County Environmental
Network v.
Gallagher Blacktop, PCB 89-64, 107 PCB 27
(January 11,
1990):
The Board notes several problems with Gallagher’s
reliamce on numerical sound measurements as a defense
to the
noise nuisance action.
First, compliance with
one set of regulations
(the numerical noise emissions
values) does not present an absolute bar to finding of
122—52
9
violation regarding another set of regulations
(the
general nuisance noise prohibitions).
(~.
at
8,
107 PCB at
34)
(See also Village of Matteson v. World Music Theatre et al.,
PCB
90—146 p.
4
(April 25,
1991).
We will, however, discuss the
respondents’ numerical evidence during our analysis of the Acts’
Section 33(c)
factors
(see below).
SECTION 33(c)
FACTORS
As the Ferndale Court noted,
in order to make a
determination concerning the reasonableness of the noise
emissions, the Board must consider the statutory factors found in
Section 33(c)
of the Act.
Ferndale,
44
Ill. App.
3d at 967—68,
358 N.E.2d at 1228.
That section provides as follows:
In making its orders and determinations,
the Board
shall take into consideration all the facts and
circumstances bearing upon the reasonableness of the
emissions,
discharges,
or deposits involved including,
but not limited to:
1.
the character and degree of injury to,
or
interference with the protection of the
health, general welfare and physical property
of the people;
2.
the social and economic value of the
pollution source;
3.
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;
4.
the technical practicability and economic
reasonableness of reducing or eliminating the
emissions, discharges or deposits resulting
from such pollution source; and
5.
any economic benefits accrued by a non-
complying pollution source because of its
delay in compliance with pollution control
requirements;
6.
any subsequent compliance.
These factors guide the Board in reaching a decision on
whether or not noise emissions rise to the level of noise
12 2—53
10
pollution,
which by definition, unreasonably interferes 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.
(see also Wells Manufacturing Company v. Pollution Control Board,
73 Ill.2d 225,
232—33,
383 N.E.2d 148,
150—51
(1978); Mystic
Tape,
Div. of Borden,
Inc.
v. Pollution Control Board,
60 Ill.2d
330,
328 N.E.2d 5,
8—9
(1975); Incinerator.
Inc.
v. Pollution
Control Board,
59 Ill.2d 290,
319 N.E.2d 794, 798—99
(1974)
; City
of Monmouth v. Pollution Control Board,
57 Ill.2d 482,
313 N.E.2d
161,
163—64
(1974).
The Board considers the factors as follows:
33(c) (1)—Character and Degree of Injury or Interference
In evaluating the first of the Section 33(c)
factors, the
Board finds the injury to and interference with the health and
general welfare of the Zarlengas to be substantial.
This
interference goes far beyond trifling interference, petty
annoyance or minor discomfort.
Deprivation of sleep constitutes
one of the most serious of injuries short of trauma.
This
instant circumstance is further aggravated by the continuous,
24—
hour—a—day,
nature of the noise pollution, which allows for no
respite, and causes the active invasion of the Zarlengas’
townhome at all times.
33(c) (2)-Social and Economic Value of Pollution Source
As previously stated, One Bloomingdale Place,
is an eight-
story luxury apartment complex that contains 168 apartments which
house approximately 300 residents.
(~.
441,
574).
The building
was completely leased in December of 1988 and has enjoyed a
nearly complete occupancy rate since February of 1989.
(~.
442,
577).
Based upon these facts, the Board finds that One
Bloomingdale Place is of substantial social and economic benefit
in that it provides rental housing for those who do not wish to
purchase property in the area.
We also find,
however, that the
social and economic benefit of the complex is significantly
reduced by the nature of the noise emissions from the property.
33(c) (3)-Suitability of the Pollution Source to the Location
The record contains very little descriptive information on
the area beyond the Zarlengas’ and respondents’ property.
Specifically, there are only
a few references to the fact that
there are subdivisions surrounding the Zarlengas’ property and
that construction in the area is proceeding at a rapid pace.
(~.
79-80).
However, Mr. Edison testified that there had been
public hearings regarding the plans for the design of the
building and that those plans were approved by the Village of
122—54
11
Bloomingdale’s building, planning, and zoning departments as well
as its Village Board.
(~.
573—75).
In light of the above
facts, Board finds that One BlOomingdale Place is suitable for
the area in which it is located.
On the priority of location issue, Mr. Zarlenga testified
that he purchased his townhome some time between March and August
of 1986,
and that he closed on the property on March
4,
1987.
(~.
21).
Construction of One Bloomingdale Place began in the
Fall of 1986.
.
However, Mr. Edison testified that the Village of
Bloomingdale approved the project before the summer of 1985, that
Bloomingdale Partners had contracted to purchase the land for the
complex in either the Summer or Fall of 1985, and that the
Village approved a bond issue for the development of the project
in the summer of 1985.
(j~.
572-73).
Moreover, although One
Bloomingdale Place had not been built,
Mr. Zarlenga testified
that he knew that there was a possibility that an eight-story
apartment complex
(i.e. One Bloomingdale Place) was going to be
built when he purchased his townhome.
(~.
63,
67-68,
81).
Based
on this information, the Board finds that One Blooiuingdale Place
has priority of location.
We also find that the weight of this
factor is increased when one considers the fact that Mr. Zarlenga
knew of the proposed apartment complex project and that public
hearings regarding the design of the building were held prior to
the Village’s approval of the building.
(~.
574—75).
33(c) (4)—Technical Practicability and Economic Reasonableness of
Reducing or Eliminating the Emissions
As previously stated, respondents introduced evidence of dB
readings to rebut the Zarlengas’ case.
Although it is
inappropriate to use numerical data to show compliance with the
noise nuisance regulatory standard, we will examine such evidence
at the outset of our deliberations of whether it is technically
practicable to reduce the emissions from One Bloomingdale Place.
Mr. Alan Batka,
a certified mechanical engineer employed by
Polytechnic,
Inc.,
testified that he performed three sets of
sound tests at One Bloomingdale Place to determine the level of
sound emissions from the complex and the effect of the emissions
on the Zarlengas’ property as well as the background sound level
at the site.
All of the tests were conducted in accordance with
American National Standards Institute standard S1.13.
(~.
264-
65).
Specifically, Mr.
Batka used a Bruel and Kjaer sound meter
which has an octave filter set to separate the sound into nine
frequencies.
(~.
265—66).
The first sound test was conducted in July 1989.
(~.
263).
Mr. Batka stated that the purpose of the test was to determine
the level of sound emitted from the Zephyr unit and pool air
conditioning unit.
(~.
271).
During the morning and early
afternoon of that day,
Mr.
Batka measured the sound levels at 12
122—55
12
locations between the Zarlenga’s home and the complex.
(R.
271,
343; Resp.
Ex.
1).
Locations 11 and 12 were at the northeast and
northwest corners, respectively, of the Zarlengas’
townhome.
(R.
3,
277, 288,
291; Resp.
Ex.
1).
Measurements were taken when the
units were on and then when they were off.
(R.
278-79,
293).
Nr,. Batka testified that 75
to 90
of the individual air
conditioning units were operating during the test.
(~.
290).
The second sound test was conducted on April
26,
1990 between
7:45 p.m and 9:25 p.m.
(~.
263,
292,
392).
Mr. Batka stated
that the purpose of the test was to determine the sound effect of
the individual air conditioning units and the Zephyr unit.
There
was some argument at hearing regarding how many of the individual
air conditioning units were operating during the test (estimates
run
from 30 to 42 units or 70
of the units).
(~.
474—76,
549—
50,, 562).
As with the July 1989 sound test,
Mr.
Batka took
measurements at various locations,
including locations in the
Zairlengas’ yard directly across from the apartment complex when
the units were operating and when they were off.
(Resp. Ex.
2).
In order to determine the impact that the Zarlengas’
air
conditioning unit had on the sound levels at the Zarlengas’
home,
Mr..
Batka also measured the sound levels of the area when the
Zarlengas’ air conditioning unit was on and when it was off
(u.).
In May 1990,
Mr.
Batka conducted a third sound test.
(R.
264; Resp. Ex.
6).
The purpose of that test was to measure the
sounds emitted from a single air conditioning unit with and
without an attenuation device
(i.e. the air conditioning unit’s
compressor was encased
in a sheet metal cabinet and insulated
with foam insulation).
(~.
333-34,
414).
At hearing,
Mr. Batka argued that the data elicited during
the above tests not only show that the sound levels emitted from
One Bloomingdale Place are reasonable and in compliance with the
Board’s regulations, but that the equipment at the complex causes
no significant increase over the background noise.
(~.
292,
294~—95, 314—15,
317—18,
320,
327—28,
333,
339, 400—01;
Resp.
Exs.
1,
2,
3,
4,
5,
6).
However, although Mr. Batka conducted the
sound tests in accordance with American National Standards
Institute standard S1.l3, he admitted that the tests were not
conducted in accordance with the Board’s regulations for
measuring noise.
(~.
265—66).
Specifically, Mr.
Batka
testified that he did not take the measurements on one—hour Leq—
weighted basis, that he did not use a barometer, and that,
for
many of the measurements, the sound meter was within 25 feet of a
reflective surface.
(~.
347,
348,
352,
357,
360)
.
Board
regulations, however, specify that numerical sound emissions data
must be taken in accordance with the Board’s guidelines.
35
Ill.
Adm. Code 901.102.
In Anthony W. Kochanski
V.
Hinsdale Golf
Club, PCB 88-16,
101 PCB 11,
(July 13, 1989), the Board stated
that it is impossible to establish a violation of the noise
regulations using results which were not taken on a Leq—weighted
basis.
(Id. at 7,
101 PCB at 17).
If it is impossible to
establish a noise violation before the Board using a test
122—56
13
protocol that does not comport with the Board’s regulations,
Mr.
Batka’s test protocol,
at the very least,
leads the Board to
question the validity of his results.
In fact,
Mr. Batka’s data
indicates, that the sound levels for certain frequencies were
lower when the complex’s units were operating than when they were
not.
(R.
373,
374—76,
377).
Accordingly, based on the above, we
will not look to Mr. Batka’s data~assupport for the proposition
‘that it is’ impossible to effectively reduce the noise levels
around the Zarlengas’
townhome, but will discuss the other
testimony relevant to this issue below.
With regard to the 60 to 65 individual air conditioning
units,
Mr. Zak recommended that two silencers
(one for intake and
one for exhaust) be attached to each unit,
that the compressor on
the units be enclosed, and that a minimal amount of duct work be
added to the exhaust fan of each unit.
(~.
179—80,
212).
As
for the silencer on the unit,
Mr. Zak recommended that Industrial
Acoustics Company’s frequency quiet duct type LFM silencer be
attached to each unit.
(R.
175;
Ex.
I).
The model measures
approximately 24 inches by 24 inches by five feet, weighs
approximately 100 pounds, produces a minimal static pressure
drop,
and would be effective in controlling rumbling noise
(i.e.
noise in the low frequency or base part of the spectrum) to the
extent that there could be a sound reduction of 11 to .25 dB for
some frequencies
(i.e.
50
to 70)
.
(R.
175—77,
180, 187,
212—
13).
In terms of installing the above equipment, Mr.
Zak stated
that he believed one possible solution would be to mount the
silencers and duct work on the outside wall of each apartment
unit and attach approximately 50 pounds of brackets and bolts to
secure the equipment.
(j~.
180-81,
213).
He also stated that
the silencers could be mounted on the balcony areas to avoid
having the units mounted on the side of the building, but that
this solution would entail more expense.
(~.
181).
In terms of
economics,
Mr. Zak learned from Industrial Acoustics that it
would cost $25,000 for approximately 120 silencers
(two on each
of the 60 units).
He also opined, based on his past experience,
that it would cost $50,000 to install the equipment.
(~.
182,
216,
219).
As
‘for the clubhouse units,
Mr. Zak testified that
the easiest solution would be to relocate the units.
(~.
175—
176).
He added that another possible solution would be to erect
three—quarter inch plywood mounted on a two by four frame around
the equipment,
line the inside of the structure with fiberglass,
use an intake silencer to supply cool ambient air to the
equipment,. and attach exhaust silencers on the exhaust vents.
(~.
241).
In rebuttal, respondents called Mr. Michael Mungovan,
a
journeyman pipe fitter who’ is also experienced in the
installation and repair of heating and air conditioning
equipment.
Mr. Mungovan testified that he researched the
possibility of using LFM or duct silencers on the complex.
(~.
415-16,
419—22).
He stated that there were several reasons why
122—57
14
silencers were not a feasible alternative to reduce the noise
from the individual air conditioning units.
Specifically,
Mr.
Mungovan stated that silencers would not be feasible because the
silencers would cover half of the bedroom windows of seven
apartments, the silencers would block the gas fired furnace
exhausts and flues of all of the apartments, static pressure
would be increased once sheet metal or duct work were added to
the air conditioner condenser fans,
20 to 30 feet of straight
duct work would have to be added to the air conditioning units
and hung from the building, and because the silencers would
easily rust through their spot welding and would need to be
replaced within five years.
(~.
415—16,
426—27, 428—30,
438).
In terms of expense, Mungovan testified that,
in addition to the
cost of the silencers, the installation of the silencers and the
cost of the additional sheet metal would be at least $60,000.
(~.
430).
With regard to the pool and clubhouse equipment,
Ms.
Macaione testified that it would cost approximately $12,000 to
move the equipment.
(~.
477).
She added that she contacted
Fieldhouse, the contractor that installed the heating and air
conditioning units at One Bloomingdale Place, regarding the
possibility of installing a timer on the Zephyr unit, but was
told that the design of the unit prohibits such action.
(~.
536).
During our review of those portions of the record relevant
to this issue,
it became obvious that each party was making every
effort to attack the validity of the above testimony as
it
relates to a solution for the noise emitted from the individual
air conditioning units.
Specifically, respondent’s attorney
elicited the following facts: that Mr. Zak was not an engineer,
that he did not contact a mechanical or structural engineer to
see how the silencers would be mounted on the building or if it
would be structurally feasible, that he had never seen 120
silencers hung from the side of a residential building, and that
he did not include the cost for the materials (i.e.
sheet metal,
duct work, and brackets)
or the installation costs in his
estimate.
(~.
213—14,
217—18,
223—24,
233).
It was also
revealed that Mr. Mongovian had never installed a silencer on an
air conditioning unit.
(~.
431, 437).
The information elicited by each party’s attorney adds to
the Board’s difficulty in addressing this issue.
However, we do
believe that it is technically feasible and economically
reasonable to somehow control the noise emitted from One
Bloomingdale Place.
This conclusion is based,
in part,
on Mr.
Zak’s considerable experience in dealing with noise problems and
the fact that he referred to his files and various publications
from several acoustic experts and manufacturers of silencers and
acoustic equipment and examined several possible solutions before
recommending a course of action.
(Id.
147—48,
157,
159,
173,
122—58
15
176,
189,
238).
As for the individual air conditioning units, we recognize
that Mr.
Zak’s recommendation to attach
LFM
silencers to the side
of the building may not be feasible, but are unwilling to make an
unconditional determination regarding his recommendation at this
point.
First,
a structural engineer has not analyzed whether the
complex can withstand the mounting of silencers on its walls.
Moreover, because Mr. Mongovian is not a sound engineer, we do
not know if unobtrusive ductwork can,
in fact, be fitted to the
individual air conditioning units.
Finally, there may be other
alternatives available to reduce the noise that are more
desirable albeit more expensive.
Accordingly, our Order below
will be crafted to take such concerns into account.
Finally, with respect to the pool and clubhouse equipment,
we note that Mr.
Zak’s recommendation to either modify or
relocate the equipment was largely left unrebutted.
Specifically, except for Ms. Macaione’s testimony regarding the
cost to relocate the equipment, respondent did not present any
detailed technical or economic information regarding Mr.
Zak’s
recommendation.
Moreover, we have no idea as to where’ Ms.
Macaione obtained her cost estimate.
Accordingly, we find that
it is technically feasible and economically reasonable to reduce
or eliminate the noise from the equipment.
33(c) (5)-Economic Benefits Accrued by Noncomplying Pollution
Source
The evidence indicates that the allegations of noise
pollution by the Zarlengas,
as herein found to exist in fact,
have been made since March of 1988.
(~4.
41).
To the extent
that these violations have been in existence since that time,
Blommingdale Partners, as well as its general partners, have
evaded the costs associated with compliance,
and have therefore
accrued economic benefits commensurate with that absence of
expenditure.
33(c) (5)—Subsequent Compliance
The record indicates that several actions were taken at One
Bloomingdale Place subsequent to the time that Mr. Zarlenga
talked with Mr. Edison on March 22,
1988.
The following is a
summary of the work done at the complex after that date.
First,
in 1988,
a 12 inch piece of metal was added to the
fans outside the pool and clubhouse to deflect noise.
(~.
497-
98; Resp.
Ex.
16).
On January 14,
1989, two set back thermostats
were installed to ensure that the heating/air conditioning unit
was not on while the clubhouse was not occupied.
(R.
480-81,
554; Resp. Exs.
17,
18,
19).
In November of 1989, all of the
individual air conditioning units were insulated with fiberglass
122—59
16
and outfitted with backtrack and gravity filled dampers.
(~.
73—75,
93—94,
95,
433—34, 471,503—04,
531—32; Resp.
Ex.
21).
Ms. Macalone testified that the total cost of the project was
$76,000
($48,000 for the insulation and $28,000 for the dampers).
(~4.
472—73,
504—06; Resp.
Exs.
22,
23,
24).
She also testified
the some work had been done in April of 1989,
to convert the pooi
and clubhouse heating unit to an air conditioning unit in hot
weather.
(R.
469-70; Resp.
Ex.
l2B).
A memo,
dated June 23,
1989,
evIdences the fact that Ms. Nacaione directed Mr.
Bob
Schwartz, the maintenance supervisor at that time, to reinstall
the fence around the unit after the work was completed.
(R. 488—
89; Resp.
Exs.
13,
15).
Ms. Macaione also testified that shrubs
were planted around the fence by July of 1989.
(~.
469-70).
Mr. Karbonek, the current maintenance supervisor of the building,
stated that he put new bearings in the blower assembly housing of
the Zephyr’s exhaust vents,
that he placed rubber strips under
the blower assembly located inside the Zephyr unit,
and that he
tightened all of the hardware associated with the unit on
February 6,
1990,
in an effort to assure that no vibration or
rattling was present.
(Id. 47—48,
51,
123,
130,
132,
470—71,
500-01,
542-44,
565; Resp.
Ex.
20).
Mr. Karbonek also testified
that,
in response to the Zarlengas’ complaints, he ensures that
the Zephyr unit is disconnected after 9:00 p.m. and that the
thermostat for the pool’s air conditioner and heating unit is
programmed so that the unit is shut off from 11:00 p.m. to 7:30
a.m.4
(~.
552-55).
Finally,
in April of 1990,
Mr. Mungovan
encased the compressor of an individual air conditioning unit in
a sheet metal cabinet and insulated it with foam insulation to
see if the noise levels from the unit were significantly
decreased.
(Id. 414).
It is apparent from the record that some of the above work
may not have been done in response to the Zarlengas’
complaints.
For example, the record reveals that there is some dispute as to
why the individual air conditioning units were insulated.
Mr.
Zarlenga testified that the maintenance personnel told him that
the insulation was added to the individual air conditioning units
in order to prevent cold air from entering the apartments.
(ç~.
95).
Ms. Macaione,
on the other hand,
testified that the units
were insulated to “muffle the vibration noises coming from the
units.”
(Id.
472).
4Ns. Macaione testified that either the maintenance supervisor
or janitor turn off the Zephyr unit’s fan before they leave work
at 4:30.
(~.
465).
She added that,
if for some reason it is not
shut off at that time, Mr. Karbonek will return at 9:00 or 10:00
to turn off the fan.
(Id.).
She also testified that she circulated
a memo,
dated June 23,
1989,
directing the maintenance supervisor
to shut off the fan by 9:00 p.m. and that the memo was circulated
in response to the Zarlengas’
concerns.
(~.
491—93,
524;
Resp.
Ex.
14).
122—60
17
In any event,
it is evident that the above work had little,
if any, effect on the noise levels.
For example, Mr. Zak stated
that the fence and shrubs surrounding the pool and clubhouse air
conditioning unit will have no effect on the noise unless there
is a shrub or tree depth of approximately 100 feet, the shrubs or
trees are at the height of the highest noise source, and unless
the fencing is solid, relatively thick and air tight
(i.e.
sealed
to the ground and high).
(~4.
239, 240—41 599—600,
619).
Finally, the fact remains that the entire Zarlenga family
testified that there has been no reduction in the level of noise
coming from the complex.
(~4.
95,
120,
123,
130,
132).
CONCLUSION AS TO UNREASONABLE INTERFERENCE
Based on the Board’s finding of a serious interference with
the Zarlengas’
enjoyment of life and after consideration of the
factors listed in Section 33(c)
of the Act, the Board finds that
noise emissions from One Bloomingdale Place are unreasonable and
constitute a violation of Section 24 of the Act and 35 Ill. Adm.
Code 900.101 and 900.102.
REMEDY
In their complaint, the Zarlengas request that the Board
enter an order requiring the respondents to cease and desist from
violating the Act.
(Complaint
p. 4).
In their post-hearing
brief, the Zarlengas ask that silencers be attached to the air
conditioning units on each of the apartments that face their
home,
that the Zephyr unit, exhaust ducts,
and pool dehumidifier
unit be relocated to the north side of the apartment complex,
that deflectors or silencers be attached to the exhaust ducts,
and that a civil penalty be imposed.
(Pet.
Br.
pp.
2,
20).
Section 33(b)
of the Act authorizes the Board to issue an
order as it deems appropriate under the circumstances that the
respondent cease and desist from all future violations of the Act
and Board regulations.
The Act also authorizes the Board to
impose sanctions on those
it holds to have violated the Act or
Board regulations.
Specifically, Sections 33(b)
and 42(a)
of the
Act authorize the Board to impose a civil penalty.
In order to
determine the appropriate civil penalty the Board is authorized
to consider the following factors:
the duration and gravity or
the violation,
the presence or absence of due diligence to comply
or secure relief, any economic benefits accrued through a delay
in compliance,
the amount that will deter future violations and
aid in voluntary compliance,
and other previously—adjudicated
violations.
See Section 42(h),
as added by P.A. 86-1363,
2002,
1990 Ill. Legis.
Serv.
1979,
1989 (West), effective Sept.
7,
1990.
Since hearing in this matter was before the effective date
122—61
18
of Section 42(h),
those factors will not be considered in
assessing a penalty at this time.
People v. Sure-Tan, PCB 90-62
p.
10
(April
11,
1991).
Even if the provision were applicable,
the Board does not believe that a civil penalty is appropriate at
this stage.
While several remedial options were mentioned at hearing,
certain informational deficiencies exist with regard to a final
solution to reduce the noise being emitted from the complex (see
the above discussion under 33(c)(4)).
Therefore,
in order to
assist the Board in determining the most appropriate remedial
action for the abatement of the noise, the Board will order
respondents to have a competent individual or firm prepare a
report that describes,
evaluates, and analyzes, to the maximum
extent possible, all methods of control
(not just those already
discussed).
Each control option should include anticipated noise
reductions, cost of implementation, and an estimate of a
reasonable time for implementation.
The Board will retain jurisdiction in this matter pending
receipt of the report and final disposition of this matter.
The
report is to be filed with the Board and the Zarlengas no later
than July 31,
1991.
Unless a motion requesting a hearing on the
contents of the report is received by August 21,
1991,
the Board
will proceed to issue a final Order regarding compliance as soon
as possible thereafter.
Any determination regarding the
imposition of civil penalties, pursuant to Section 42
of’ the Act,
for non-compliance with this Order will be deferred until the
final Order.
This Interim Opinion and Order constitutes the Board’s
initial findings of facts and conclusions of law in this matter.
ORDER
The Board finds that Bloomingdale Partners, Mr. Howard
Edison, Mr.
Bruce McClaren, and Mr. Gary Laken have violated
Section 24 of the Environmental Protection Act as well as 35 Ill.
Adm. Code 900.102 and hereby orders Bloomingdale Partners, Mr.
Edison, Mr. McClaren, and Mr.
Laken to submit to the Board and
complainants, no later than July 31,
1991,
a report on the
methods of reducing or eliminating the noise pollution at One
Bloomingdale Place that is consistent with the accompanying
Opinion.
The Board will retain jurisdiction in this matter pending
receipt of the report.
Unless a motion for hearing on the
contents of that report is received by August 21,
1991, the Board
will proceed to issue
a final Order
in this matter.
IT IS SO ORDERED.
122—62
19
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board
hereby certify that on the.
5?~t-~
day of
__________________,
1991,
the above Interim Opinion and Order
was adop~d.by a vote of
7o
.
‘2
~.
/~L~)
Dorothy M.,,,4unn, Clerk
Illinois Po’llution Control Board
122—63
