ILLINOIS POLLUTION CONTROL BOARD

September 17,

1992

JOHN ZARLENGA and

)

JEAN

 ZARLENGAI

)

~ompIiinants,

)

 PCB 89—169

(Enforcement)

PARTNERSHIP CONCEPTS,

)

HOWARD

EDISON, BRUCE MCCLAREN,

)

COVE

DEVELOPMENT

COMPANY,

)

THOMAS

O’BRIEN,

BLOOMINGDALE

)

PARTNERS,

 Illinois Limited

)

Partnership, and

GARY

LAKEN,

)

Respondents.

ORDER

THE

BOARD

(by

Anderson):

August

24,

1992,

John

and

Jean

Zarlenga

(Zarlenga)

filed

a motion requesting the Board to reconsider and modify its July

30,

 1992 opinion and order

 in this matter.

 On August 31,

 1992,

Partnership Concepts, Howard Edison, Bruce McClaren, Cove

Development Company, Thomas O’Brien, Bloomingdale Partners, an

Illinois Limited Partnership, and Gary Laken (respondents)

 filed

a response in opposition to the Zarlenga’s motion.

As previously stated, the

 Zarlenga’s motion comes in

response to the Board’s July 30,

 1992 opinion and order in this

matter.

 In that order, the Board granted respondents’ July 7,

1992 motion to amend the Board’s February 27,

 1992 final opinion

and order.

 Specifically, the Board ordered respondents to:

1.

 remove and relocate the Zephyr unit and the clubhouse

air conditioner to the other side of One Bloomingdale

Place as proposed within 20 days from the date of the

order;

2.

 replace the chassis and compressors on

the

individual

air conditioners servicing

the

apartment units at One

Bloomingdale Place that face the Zarlenga’s town home

within 90 days from the date of the order;

3.

 furnish the Zarlengas all of the data generated by

Shiner

 & Associates in the preparation of

the

proposed

plan;

4.

 implement the complete noise abatement program by

October 30,

 1992;

and

0136-0001

5.

 cease and desist from violations of Section 24 of the

Environmental Protection Act,

 13.1.

 Rev.

 Stat.

 1991,

ch.

111½, par.

 1024,

 and 35 Ill. Adm. Code 900.102

effective upon attainment of compliance, but in no case

 later thaii October 30.

 1992.

In aadition,

 in response to a comment by the Zarlengas that the

parties would proceed with further measures if the modifications

failed to reduce or eliminate the noise problem, the Board stated

that,

 although it would not object to any agreement between the

parties, the Zarlengas would have to file another complaint if

they believed that the noise problem persisted and the

respondents did not agree.

In its current motion, the Zarlengas argue that they agreed

to the above—mentioned remedy only if certain conditions would be

met.

 Specifically, the Zarlengas state that,

 during a four-way

phone conversation between their attorney, Mr. Greg Zak from the

Illinois Environmental Protection Agency

 (Agency), respondents’

attorney, and respondents’ engineering expert, the parties agreed

that,

 as part of the proposed remedy, Mr. Zak would take readings

to determine if the new remedy was acceptable to the Zarlengas

and to assure that the noise levels were in compliance with the

Board’s noise pollution regulations.

 The Zarlengas also argue

that the respondents agreed to supply them and Mr. Zak with the

data generated by Shiner & Associates

 (Shiner).

 The Zarlengas

assert,

 however, that as of August 20,

 1992, respondents had not

supplied all of the information.

 Specifically, the Zarlengas

request that respondents tender certain drawings and data to

 substantiate the finding by Superior Mechanical Industries,

 Inc.

(SMI) that the remedy initially proposed by respondents

 (i.e.,

the installation of silencers)

 is not feasible.

 The Zarlengas

next argue that the parties agreed that,

 if respondents’ amended

proposal

(

 i.e., to replace the chassis and compressors) was not

acceptable to the Zarlengas and Mr. Zak, respondents would take

steps to remedy the problem.

 Thus, the Zarlengas ask that

respondents be required to comply with Board’s February 27,

1992

order if the new remedy does not alleviate the noise problem.

Finally, the Zarlengas argue that they should not have to file,

as the Board stated in its July 30,

 1992 opinion, another

complaint if the noise from One Bloomingda.e

 Place persists.

In response, respondents argue that the Zarlengas’ motion is

predicated on a miacharacterization of the agreement reached

between counsel for the parties during the telephone conference

call in which the Zar.engas

 did not participate.

 In fact,

respondents argue that they specifically refused to accept any

resolution which would leave the final determination concerning

remedial actions to the Zarlengas’ subjective evaluation.

Respondents add that they would not have proposed their

alternative plan if they had not received assurances from their

consultants that the alternative plan would eliminate the noise

0136-0002

3

that disturbed the Zarlengas.

 In fact,

 respondents state that

their interest in achieving a final resolution was evidenced by

their motion to amend the Board’s February 27,

 1992 order

in

which they requested the Board to find that the implementation of

the alternative plan “...wil.

 constitute

 (a) complete resolution

of~this~matter~.

.Einal.

respondenta_argue~

that

the

 Zarlengas’

request

ignores

the

fact

that

respondents

presented

evidence

their engineering consultants indicating that the installation of

silencers was not feasible.

As for the issue of the data, respondents state that their

attorney directed Shiner to provide the Zarlengas with all of the

noise data collected during its June 9 and June 19,

 1992 field

testing events.

 Respondents also assert that Shiner provided the

data to Mr.

 Zak on July 27,

 1992,

 and that,

 on August 3,

 1992,

their attorney wrote a letter to the Zarlengas’ attorney

confirming that respondents had complied with the Zarlengas

request for data.

 Respondents add that the Zarlengas,

 in their

response to respondents’ motion to amend the Board’s February 27,

1992 order, did not request any documentation prepared by SMI,

 and that the Board,

 in its July 30,

 1992 order, did not direct

respondents to provide such data.

 Respondents also argue that

the engineering evaluations prepared by SMI do not have any

bearing on whether respondents’ alternative noise reduction

measures will reduce the noise.

 Respondents add that,

 in any

event, they have supplied the Zarlengas with a copy of SMI’s

engineering opinion concerning the infeasability of installing

silencers on the individual air conditioners and are unaware of

the existence of the engineering drawings referred to the

Zarlengas’ motion.

The Board hereby grants the Zarlengas motion for

reconsideration, but denies the relief requested therein.

The

Board in this instance is presented by two opposing views of what

was agreed to.

 On the one hand, the Zarlengas state that the

parties agreed that Mr. Zak would take readings to determine if

the new remedy was acceptable to the Zarlengas and to assure that

the noise levels were in compliance with the Board’s regulations

and that,

 if the new remedy was not successful,

 respondents would

take further steps to remedy the noise problem.

 Respondents, on

the other hand, argue that they would not have accepted a

resolution that would leave the final determination concerning

remedial actions to the Zarlengas’ subjective evaluation.

Although an agreement between parties is desirable,

 it is

not dispositive regarding the Board’s determination of an

appropriate remedy.

 In reviewing noise cases, the Board examines

the record and analyzes factors found in Section 33(c) of the

Environmental Protection Act

 (Act),

 Ill.Rev.Stat. 1991,

 ch. 111½,

par. 1033(c), to determine if a noise violation based on

unreasonable interference has occurred and to then decide what

actions are appropriate to remedy the problem.

 This is exactly

0136-0003

4

what was done in this case.

 On February 27,

 1992,

 and again on

July 30,

 1992,

 the Board ordered a remedy after evaluating the

evidence before it at those times.

 The Zarlengas, however, are

asking the Board to retain jurisdiction in this matter until they

have evaluated and are satisfied with the remedy.

 The Board will

put_one_party

Q~e~11e~

 sole de ermine

 t_the

effectiveness of a remediation, and thus contravene the finality

of

 a Board order,

 if the party believes that a noise problem

persists.

 Rather,

 a party would be expected to file another

complaint because any finding of a continuing noise problem would

have to be based on the Board’s evaluation of new facts.

As for the Zarlengas’ request for engineering drawings from

SMI, we remind the Zarlengas that they did not request, nor did

the Board order, any such documentation.

 In any event,

it

appears that respondents have supplied the Zarlengas with a copy

of SMI’s engineering opinion concerning the infeasability of

installing silencers on the individual air conditioners and that

respondents are unaware of the existence of the engineering

drawings referred to the Zarlengas’ motion.

For the foregoing reasons, the Board grants the motion for

reconsideration, but reaffirms its July 30,

 1992 opinion and

order in this case.

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 certfy that the above order was adopted on the

/7c~

 day of

_______________,

 1992,

 by a vote of

•7—o

Dorothy M./’~unn,Clerk

Illinois ~llution

 Control Board

36-00014