ILLINOIS

POLLUTION

CONTROL

BOARD

December

17,

1992

JOHN

ZABLENGA

and

JEAN ZARLENGA,

Complainants,

v.

)

P~B

89—169

(Enforcement)

PARTNERSHIP

CONCEPTS,

)

HOWARD

EDISON,

BRUCE

MCCLAREN,

)

COVE

DEVELOPMENT

COMPANY,

)

THOMAS

O’BRIEN,

BLOONINGDALE

)

PARTNERS, an Illinois Limited

)

Partnership,

and GARY LAKEN,

)

)

Respondents.

)

ORDER

OF THE BOARD

(by

J.

Anderson):

On

December

7,

1992,

John

and

Jean

Zarl.nga

filed

a

motion

for

sanctions

and

penalties.

On

December

15,

1992,

~Partnership

Concepts,

Howard

Edison,

Bruce

McClar.n,

Cove

Develcps.flt

Company, Thomas O’Brien, and Gary Lakin

(respondents)

filed

a

response to

the

motion.

The

Board

hereby

denies

the

Ear

lengas’

motion.

In their motion, the Zerlengas

ask

the

Board

to

impose

sanctions

and

penalties

(including

those

mpsciiimd in Section 42

ot

the

Environmental

Protection

Act~(Act)

and

35

Ill

Ada.

Code

101.280,

as

well

as

attorney

fees,

for respondents’

failure

to

comply with the Board’s July 30,

3.992 final opinion and order in

this

matter. In that order, the Board

directed

respondents to:

1~

remove

and

relocate

the

Zephyr

unit

and

the

clubhouse

air

conditioner

to

the other

side

of the building no

later

than

20

days

from

the

date

of

the

order,

2.

replace the chassis and compressors on the individual

air conditioners facing the Zarl.ngas’ :town home no

later than 90 days from the date of

the

order,

3.

furnish

the

Zarlengas

with

data

q.nsratsd

by

Shiner

&

Associates

in

the

preparation

of

the

noise

abatement

plan,

4.

complete

the

noise abatement

program

completed by

October 30, 1992, and

5.

cease and desist from violations of Section 24 of

the

Environmental Protection Act, Ill. Rev. Stat.

1991,

Ch.

111½,

par.

1024, and 35 111. Adm. Code 900.102.

0138-0011

---

2

effective upon attainment of compliance, but in no

case

later

than

October

30,

1992.

The Board also stated that failure to

comply with the provisions

of the order could subject respondents to civil penalties.

In

support

of

their motion,

the

Zarlengas

assert

that one

unit

remains

located

outside

of

the

swining

pool

area

end

that

six to ten individual air conditioners

hay,

not

had

their

chassis

and compressors replaced as

directed

by the

Board.

The

Zarlengas

include an inspection

report

from

the Illinois Environmental

Protection Agency, dated September 8, 1992, indicated that one

unit

had been removed and

that

.

.

.

~the

older. rtans

had

been

disconnected.

N

The

Zarlengas

also claim that

respondents

have

misrepresented the repairs to the

Board.

Specifically,

the

Zarlengas note that

respondents,

in this case,

alleged

that the

work

was

done

on

the

individual

air

conditioners facing

the

Zarlengas

townhoae

to

reduce

the

noise

emitted

toward the.

townhome ~

The

Zarlengas,

however,

claim

that

the

repairs

were

done

in

response

to

complaints

by

the

residents

-of

One

Bloomingdale Place.

Specifically,

the

Zariangas

point to

an

arbitor’s

finding

in

In

the

Matter of the Arbitration between

Bloomingdale Partners

and

Cove

Development

e’’.anv

at

al.Case No.

51-llO.0491—90M.

The

arbitor

in

that

case

found:

~a

n

issue

arose

in

the

testimony

regarding

~tbs

reason

for

insulating

the

units

and

installing

~ths

baokdraft

dampers.

Field

house

suggested

that

aoL..

reduction

may

have

been

another

purpose

for

or

.

enaf

it

of

the

repair

work.

Based

on th.

facts

that

~ths

aoi..

pollution

complaint

did

not

arise

untiltb. repair work

bad

been

bid

out

and

involved

different

equipment,

I

find

that

the

air

infiltration

problem

was

the

sole

proximate

cause

of

the

need

for

these

repairs.

(MotionEx.

Cp.

9.)

The

Zarlengas state that the

above

information

did

not

bscoie

available to

them

until,

late

1992.

The

Zarl.ngas

limo

point

to

certain

representations

made

by

Mr.

Edison

duri~g a deposition

in

the

bankruptcy

case

as

well

as

th.

purchase of

a not.

from

a

creditor

in

the

bankruptcy

proceeding

to

support

their

allegation

of

misrepresentation.

Finally,

the

Zarln~as argue

that

their

~r.quest

for relief

is

justiii.,d

because

respondent.

continue

to

violate Section 24 of the Act

and

35

Iii.

Ada.Code

900.102.

Respondents deny the Zarlengas’ allegations and assert that

they

have

complied

with

the

Board’s

July

30,

1992

order.

Specifically, respondents note that the Board directed them to

Nreaove

and

relocated

the

zephyr

unit

and

the club house air

0138-0012

---

3

conditioner to the other side of the

building

as

proposed.”

Respondents note that their proposal was

outlined

in

a

letter,

dated

June

4,

1992,

from

Bruce

McClar.n

to Superior Mechanical

Industries

(SKI)

and

was

attached

as

an

exhibit

to

their

July

7,

1992

request

to

implement

alternative

noise

reduction

measures.

That

letter

states

that

respondent.

propose

to:

(i)

relocat(e

the

Zephyr

pool

dehumidifier,

as

opposed

to

just

using

baffles

and/or

a

masonry

wall

to

isolate this

equipment;

and

(ii)

relocat(e)

the

sound

producing

components

(compressor

and

condenser)

of

the

clubhouse

air

conditioner.

(Response

Ex.

A

p.

1;s.a

also

July 7, 1992 Motion to Amend

Ex.

F.)

Respondents

further

assert

that SKI

installed

-

a

new

Zephyr

condenser, unit and air

conditioner

unit,

comprised

of

a cos~ser

and

compressor, on

the

other

side

of One

.Aloomingdai.

Place

and

were

operational

as

of

August

14,

.1992.

.

ondentadd

that

the

original

Zephyr

unit

was

removed

f~

its

eriginal

lite

and the

original club house air conditioner was disabled in

place.

Respondents claim that, as a

result,

the

orl4inal.

air

conditioner

generates no noise.

Respondents

point

:to;,ths affidavit

of

John

J.

O’Malley, Vice

President

of

SKI

and

the *i~~er

19:1,92

inspection

report

of

Greg

Zak

of

the

Illinois

*nviro~ntal

Protection

Agency

in

supporl

of

their.

assertions.

(Response

Ex.

B pars.

4,

5,

Ex.

Cp.

3.)

As

for

the

individual

air

conditioners,

respondents

point

to

Kr.

O’Malley’s

affidavit

in

support

of

.its...aaertion”that

replacement

of

the

chassis

and

compressors~

rvicing

the

units

facing the Zarlengas’ townhoae

were

completed

in

the

third week

of September 1992.

(Response

Ex.

B par.~~6.)

In

order

for

the

Board to

impose.

sanctions

or penalties, it

must

find that respondents have failed to comply with

the

Board’s

order.

The

Board cannot

come

to

such

a

conclusion

in this

case.

As

respondents

correctly

note,

the

Board directed,

them

to

0zemove

and

relocate

the

Zephyr

unit

and

the

club

house air

conditioner

to

the

other

side

of

the

building

~

*mspond.nts’

proposal

was

indeed

outlined

in

a

June

4,

1992

letter

from

Bruce

)lcC3.aren

to

SKI

•

Moreover,

the

letter

was

attached as

an

.vh4bit

to

respondents’

July

7,

1992

request

to

implement alternative

noise

reduction

measures

.

.~

The

Board

specifically

considered

the

letter

when

issuing

its

order

as

evidenced

by

the

“as

proposed”

language

within

the

order.

In addition, respondents have included affidavits showing

that

the

work

on

the

pool

units

and

individual

air

conditioners

had

been

completed

in

accordance

with

the

Board’s July 30,

1992

0138-0013

---

4

order.

The

Zarlengas,

on

the

other hand, have included

no

aft

idavjts in their motion to

support

their

allagation

that

six

to ten units have not been retrofitted even though they reference

a

November

12, 1992 conversation

between Mr

•

Edison

and

Mr.

Zarlenga

in

the

presence

of

Kr.

Norman

Burger

and

Mr

•

Zak.

In

any

event,

the

Board

is

at

a

loss

to

understand

the

Zarlengas’

objection

to

the

presence

of

the

original

club

house

air

conditioner

as

long

as

it

is

disabled

and

can

generate

no

noise.

As

for

the

Zarlengas’

claim

that

respondents

are

operating

in

violation

of Section

24

of

the

Act

and

35

Ill.

.Adm..Code

900

•

102,

the

Board notes

that

the

Zarlengas

are

relying

on

the

same

allegations

that

form

the

basis

of

their

complaint

in

PCB

92—178.

On

September

17,

1992,

in

respons. to

the

Zarlenga’s

August

24,

1992

motion

to

reconsider

the

Board’s

July

7,

1992

order,

the

Board

issued

an

order

stating

that

the

Zarlengas

Could

file

another

complaint

for

any

continuing

noise

problem.

The

Board

reasoned

that

a

new

complaint

would

h7..

to be

filed

• because

a

finding

of -a

continuing

violation ‘~1d

based.. on the

Board’s

evaluation

of

new

facts.

Accordingly,

because

the.

allegations in PCB 92-178

are

as yet

umprov.n,:th.y.c.nnot..for*

the

basis

of a claims for

penalties

or

sanctions

for

‘,~spondents’

alleged violation of

the Act and regulations in

this

proc..ding.

Finally,

with

regard

to

the

Zarlengas

‘-

reference

to

proceedings

in

other

forums,

the

Board notes

th*t

‘such

references

are irrelevant to

the

claims

at

issue herein and ‘4thus,

cannot

•form a

basis

for

the

iaposition

of penalties or sanctions.

br

example, the Board

notes that the

installation

of

insulatiàn

and

backdraft

dampers,

as discussed in relation to. the

arbitration

case, has no

bearing

on

the

issue of i.bstbsr~rupondents

complied

with the

Board’s

directive to

‘install

chassis ~*M o~ressors

on

the

individual

air

conditioners.1

Accordingly,

for

the

foregoing

reasons,

the

Board

hereby

denies the Zarlengas’ motion.

IT

IS

SO

ORDERED.

I,

Dorothy

K.

Gunn,

Clerk

of

the

Illinois

Pollution

Control

Board,

hereby

certif

that

the

above order was,, adopted en

the

J7t~

day

of

-

,.

1992, by a~1ot.,9f

7-’t)

‘.

~iM~4~C~1

~

Dorothy

K,lGunn,

Clerk

Illinois

pollution

Control

Board

‘Because the Board declines to

grant

the

regulated

relief, it

fees.

0138- 0.0 Iii