ILLINOIS POLLUTION CONTROL BOARD
    January
    4, 1979
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
    Complainant,
    v.
    )
    PCB 78—118
    KIRBY FOODS,
    INC.,
    a Delaware corporation,
    Respondent.
    MR. WILLIAM
    E. BLAKNEY
    & MR. JEFFREY
    S. HERDEN,
    ASSISTANT
    ATTORNEYS GENERAL, APPEARED ON BEHALF OF THE COMPLAINANT.
    FRANKLIN, FLYNN AND PALMER, ATTORNEYS AT LAW
    (MR. LEONARD T. FLYNN,
    OF COUNSEL), APPEARED ON BEHALF OF THE RESPONDENT.
    OPINION AND ORDER OF THE BOARD
    (by Mr. Werner):
    This matter comes before the Board on the April 25, 1978
    Complaint brought by the Illinois Environmental Protection Agency
    (“Agency”).
    Count
    I of the Complaint alleged that, on each and
    every day of operation from August
    9,
    1973 through the date of
    filing of the Complaint, the Respondent operated its food market
    compressors
    so as to allow the emission of sound beyond the
    boundaries of its property.
    Count
    I of the Complaint also
    alleged that,
    on specified dates,
    the Respondent emitted sound in
    violation of Rule 202 of Chapter
    8:
    Noise Regulations.
    Count II
    of the Complaint alleged that the sound emitted from the
    Respondent’s facility unreasonably interfered with the enjoyment of
    life and with the lawful activities
    of neighboring residents,
    in
    violation of Rule 102 of Chapter
    8:
    Noise
    Regulations
    and there-
    fore
    in violation of Section 24 of the Illinois Environmental
    Protection Act
    (“Act”).
    After numerous preliminary motions
    were filed, hearings were held on August 31, 1978 and November
    14,
    1978.
    The parties filed a Stipulation and Proposal for Settlement
    on November 17,
    1978.
    Kirby Foods,
    Inc.
    (“Kirby Foods”)
    operates a food market,
    which consists of a building and property,
    as well as equipment
    and inventory, located at 312 West Kirby Avenue, Champaign, County
    of Champaign,
    Illinois
    (the “facility”).
    The supermarket has
    operated at its present location since
    1969.
    At the facility,
    32—349

    —2—
    Kirby Foods, operates twelve
    (12) compressor units for the purpose
    of supplying refrigerated air for the cooling of walk—in cooler
    display cases, produce and other related units.
    These compressor
    units have been and are now located on the roof of the facility in
    what is called
    a “Rooftop Mechanical Center.”
    The compressor units
    are capable of emitting sound beyond the boundaries of the facility
    property.
    (Stipulation,
    p.
    2).
    The food market is located in a mixed residential and commer-
    cial neighborhood.
    Since the facility first operated,
    there has
    been some increase in the commercial use of some surrounding
    properties.
    (See:
    Exhibit A
    which
    is incorporated into the
    Stipulation).
    Kirby Foods,
    Inc., employs approximately thirty-two
    (32)
    persons on a full-time basis and approximately thirty
    (30)
    persons on a part-time basis.
    The facility is in operation
    fifty—two
    (52) weeks per year,
    seven
    (7)
    days per week, twenty-four
    (24)
    hours per day.
    (Stipulation,
    p.
    2).
    It is stipulated by the parties that the facility constitutes
    a property—line—noise-source within the definition of Rule 101 of
    Chapter
    8:
    Noise Regulations;
    that the land on which the facility
    is located constitutes Class B
    land within the definition of Rule
    201(b)
    of the Board’s Noise Regulations;
    and that the main source
    of the sound emitted from the facility was the compressor.
    (Stipulation,
    p.
    3).
    It is also stipulated that on September
    26,
    1975, March 22, 1976, April
    5, 1976, April
    15,
    1977, May 20,
    1977,
    December
    29,
    1977, and May 24,
    1978,
    Kirby Foods,
    Inc. caused or
    allowed the emission of sound from its facility to receiving Class
    A
    land
    in excess of the limitation imposed by Rule 202 of the
    Board’s Noise Regulations,
    as shown by noise survey reports
    prepared by the Agency.
    (See:
    Exhibits B,
    C, D,
    E,
    F,
    G, and H
    which are incorporated into the Stipulation).
    Copies of each
    noise survey report with cover letter were provided Respondent
    subsequent to each noise survey.
    These emissions constituted
    violations of Rule 202 of the Board’s Noise Regulations.
    (Stipulation,
    P.
    3-4).
    The parties have also agreed that Kirby Foods,
    Inc., on each
    and every day of operation from August,
    1973 until July,
    1978,
    operated its facility in such a way as to emit sound which
    unreasonably interfered with the enjoyment of life and with lawful
    activities of persons residing in proximity to the facility, thus
    causing noise pollution as defined in Rule 101 of the Board’s
    Noise Regulations, and therefore in violation of Rule 102 of
    Chapter
    8:
    Noise Regulations.
    (Stipulation,
    p.
    4).
    At the request of Respondent, Agency personnel conducted
    near field measurements of the sound emitted by Respondent’s
    32—350

    —3—
    compressors on October 29,
    1976.
    (See Exhibit I).
    The near field
    measurements indicated that the air intake was the principal source
    of noise emissions.
    Agency personnel therefore suggested to the
    Respondent that a barrier type solution would achieve the required
    decibel reduction.
    Subsequent to February 18,
    1977, but prior
    to
    March 18,
    1977, and in accord with
    a compliance agreement which
    was fully executed by February
    18, 1977, the Respondent installed
    acoustical lining to the compressor housing and baffles to deflect
    compressor exhaust sounds.
    Agency personnel inspected the facility
    and took measurements of noise emission on April
    15,
    1977.
    (See:
    Exhibit E).
    The results of this Noise Survey revealed that noise
    emissions from the facility still exceeded the limitations of
    Rule 202 of the Board’s Noise Regulations.
    (Stipulation,
    p.
    4—5).
    During the period of April
    15, 1977 through May of 1978,
    there occurred several discussions between the Respondent and
    Agency personnel concerning the noise emissions from the facility.
    However,
    no significant decrease
    in the sound levels of the noise
    emissions was accomplished by Respondent during this period,
    as
    indicated by noise survey reports of May 20,
    1977, December 29,
    1977, and May 24,
    1978.
    (See:
    Exhibits F,
    G.
    and H).
    After the
    filing of the Complaint in this matter on April 25,
    1978,
    but
    prior to July 11,
    1978,
    the Respondent constructed a vertical
    “Billboard” type barrier which resulted in the lowering of the
    sound levels of the noise emissions from the facility to within
    the tolerable limits of Rule 202,
    thus achieving compliance with
    Rule 202, B—A Day-time limits.
    (See:
    Exhibits J and K).
    It is stipulated by the parties that the facility performs
    services which are of social and economic value.
    As a business,
    Kirby Foods contributes to the tax bases of the State of Illinois,
    County of Champaign,
    and City of Champaign.
    Additionally, Kirby
    Foods provides full time employment for approximately
    32 persons
    and part-time employment for about
    30 individuals.
    (Stipulation,
    p.
    5).
    The parties also agree that the Respondent has an
    obligation to comply with the Board’s Noise Regulations so as to
    minimize the impact of its operations on neighboring residents.
    (Stipulation,
    p.
    5)
    The proposed settlement agreement provides that Kirby Foods,
    Inc., during the period between May 24, 1978 and July
    11, 1978,
    completed the construction of a vertical barrier which success-
    fully lowered the sound levels of noise emitted from its
    compressor units to within the tolerable limits of Rule
    202, thus
    achieving compliance with Rule 202 of Chapter
    8:
    Noise Regulations.
    The Respondent’s success
    in achieving compliance therefore
    eliminates the need to formulate a future compliance program and
    schedule.
    (Stipulation,
    p.
    6-7).
    However, as part of the
    32—351

    —4—
    settlement agreement, Kirby Foods has promised to maintain the
    vertical barrier in proper condition so as to remain in compliance
    with Rule 202 of Chapter
    8:
    Noise Regulations.
    (Stipulation,
    p.
    7).
    Additionally, the parties have suggested that a stipulated
    penalty of $750.00 is appropriate under the circumstances of this
    case.
    In evaluating this enforcement action and proposed settlement,
    the Board has taken into consideration all the facts and circum-
    stances
    in light of the specific criteria delineated
    in Section
    33(c)
    of the Act.
    Incinerator,
    Inc.
    V.
    Illinois Pollution Control
    Board,
    59
    Ill.
    2d 290,
    319 N.E.
    2d 794
    (1974).
    Accordingly,
    the
    Board accepts the Stipulation and Proposal for Settlement and
    finds that,
    on September 26,
    1975, March 25,
    1976, April
    5,
    1976,
    April
    15, 1977, May 20,
    1977, December 29,
    1977
    and May 24,
    1978,
    Kirby Foods,
    Inc.
    caused or allowed the emission of sound from its
    facility to receiving Class A
    land in violation of Rule 202 of
    Chapter
    8:
    Noise Regulations and that,
    on each and every day of
    operation from August,
    1973 until July,
    1978,
    Kirby Foods,
    Inc.
    operated its facility in such a way as to emit sound which
    unreasonably interfered with the enjoyment of life and with lawful
    activities of persons residing
    in proximity to the facility,
    thus
    causing noise pollution as defined in Rule 101 of the Board’s
    Noise Regulations,
    and therefore
    in violation of Rule 102 of
    Chapter
    8:
    Noise Regulations and Section 24 of the Illinois
    Environmental Protection Act.
    The Board imposes the stipulated
    penalty of $750.00
    This Opinion constitutes the Board’s findings of fact and
    conclusions of law in this matter.
    ORDER
    It
    is the Order of the Illinois Pollution Control Board that:
    1.
    The Respondent,
    Kirby Foods,
    Inc.,
    has violated Rule 102
    and Rule 202 of Chapter
    8:
    Noise Regulations and Section 24 of
    the Illinois Environmental Protection Act.
    2.
    Within 45 days of the date of this Order, the Respondent,
    Kirby Foods, Inc.,
    shall pay the stipulated penalty of $750.00
    payment to be made by certified check or money order to:
    State of Illinois
    Fiscal Services Division
    Illinois Environmental Protection Agency
    2200 Churchill Road
    Springfield, Illinois
    62706
    32—352

    —5
    3.
    The Respondent,
    Kirby Foods,
    Inc.,
    shall comply with all
    the terms and conditions of the Stipulation and Proposal for
    Settlement
    filed November 17,
    1978, which is incorporated by
    reference as if fully set forth herein.
    I, Christan L. Moffett, Clerk of the Illinois Pollution
    Control Board, herçby certify the above Opinion and Order were
    adopted on the
    4’i’~
    day of
    ________________,
    1979 by a
    vote of
    ~
    Illinois Pollutio:
    Board
    32—353

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