ILLINOIS POLLUTION CONTROL BOARD
Apci.
7, 1983
JOHN L. DONOVAN,
)
Petitioner,
v.
)
PCB 81—134
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
MR. THOMAS JACOB, ATTORNEY AT LAW, AND MR. JAMES BASS,
ATTORNEY AT LAW, APPEARED ON BEHALF OF PETITIONER;
MR. KEVIN MC CLAIN, ATTORNEY AT LAW, APPEARED ON BEHALF
OF THE RESPONDENT;
MR.
JAMES
YODER,
ATTORNEY AT LAW,
APPEARED
ON
BEHALF
OF
THE INTERVENORS
OPINION AND ORDER OF THE BOARD
(by D,
Anderson):
This matter comes before the Board upon a petition for
variance filed August 21, 1981 by John L.
Donovan, on behalf
of himself and Donovan Dynamiting,
Inc.,
an Illinois corpora-
tion.
The petition requests a variance from Section 24 of
the Environmental Protection Act
(Act)
and Rules
102 and 206*
of Chapter 8:
Noise Pollution in order to allow continuation
of
a steel hardening operation in MCLean County.
On Septem-
ber 25 and October 19,
1981, the Illinois Environmental
Protection Agency
(Agency)
recommended that the variance be
granted with conditions.
On September
10,
1981 the Board
received several objections, and on October 2, 1981 received
a petition to intervene from objectors Marjorie Ferrill; Loren,
Kathryn, Greg and Karen Otto;
and, Dean and Phyllis Yoder.
Intervention was allowed.
Public hearings were held on
January
27 and March 24, 1982, at which time there was public
comment concerning the grant of the
variance.
On September 20, 1982 the intarvenors filed a motion to
dismiss
based
on
failure
of
Petitioner
to
file
the transcript
of
the hearing
with.
the
Board
within
15
days
after the
hearing,
as
required
by
35
Ill.
Adm.
Code
104.202 (a).
On
October
14
the Board ordered the transcripi. filed.
On October 29 Peti-
tioner filed the transcripts, but not the exhibits,
On
January 10,. 1983 intervenors
again moved for dismissal based
on failure to file the exhibits and failure to file a final
argument
as
ordered
by
the
hearing
officer.
On
January
12,
1983
*Rule
206
has
been
amended
arid
renumbered
as
Rule
205
(R76—l4~6Ill,
Reg.
10,960,
effective
September
1,
1982).
52-03
Petitioner
delivered
the
exhibits
and final argument to the
Board.
On
January 27, 1983 the
Board
reserved
decision
on
the final series of motions until this Opinion.
Shortly before the petition was filed an enforcement
action was filed by objector Marjorie Ferrill and others
against John Donovan.
This was subsequently dismissed on the
motion of the complainants
(PCB 81-123,
44 PCB 239, December 17,
1981)
OPERATION DESCRIPTION
The steel hardening operation is situated on a 300 acre
farm owned by Petitioner about 1/2 mile northeast of Danvers,
McLean County.
The farm includes most of the E 1/2
of Section
13, T24N, R1W of the 3rd P.M.
Petitioner hardens “frogs”, which are pieces of steel
used in rail switches.
Small quantities
of explosive are glued
to the frogs and detonated to accomplish the hardening.
Peti—
tioner uses
10 to 18 ounces of explosive for each shot;
10 to
24 shots are required for each frog
(I.
11, 22).
Shots come
about once every
8 to 12 minutes
(I,
43).
Operations are
limited to 8 hours per d’ay during daylight hours
on weekdays.*
The operating site is near the center of the farm, about
3/4 of a mile northeast of Danvers.
This
is at the head of a
valley leading northwest
(Rec., Ex.
4).
The site presently
consists of
a 10 x 80 foot concrete pit,
5 1/2 feet deep, with
a sand floor
(I.
16).
There is
a 10 foot high berm to the
immediate west of the pit
(I.
80; Ex.
3).
There is also a
semi-circular berm to the east1
a maximum of 80 to 90 feet
from the pit.
This space allows movement of equipment for
loading
and
unloading
the
frogs
(Rec.,
Ex.
4).
Frogs range in size from 12 to 40 feet
(I.
20),
They are
brought to the site by truck and unloaded into the pit with a
lift operated off a small tractor.
Sixteen inch steel I—beams
are laid across the top of the pit.
Over this are placed a
rope wire mat and a rubber blasting mat made. of old tires cut
in
half
(I.
24),
Between
shots
workmen
go
under the mats to
clean the frogs and glue new explosives.
A manhole is left in
the mats for access, but this is covered with a curtain
(I.
21,
32)
*The pages of the
transcript
are
not
numbered
sequentially.
(I.
22)
refers
to
page
22
of
the
transcript
of
January
27,
1982;
(II.
22)
refers to page 22 of the transcript of the hearing of
March 24,
1982.
52-04
Petitioner began operations around 1977
(I.
39).
At first
the blasting was done in the open
(I,
16).
The present opera-
tion is the result of many stages of noise reduction which have
cost $36,000, reduced the flexibility of the operation and
increased the amount of time and labor required to treat a
frog.
Noise reduction steps which have been taken include
the following:
1.
Restriction to daylight hours on weekdays, Monday
through Friday;
2.
Reduction in the amount of explosive per shot
(I~83);
3.
Construction of a pit;
4.
Construction of berms;
5.
Relocation of one berm closer to the pit;
6.
Use of mats;
7.
Use of a curtain to cover the manhole.
REGULATIONS INVOLVED
The parties do not directly address the land use classifi-
cation for purposes of application of Rule 205,
The Donovan
operation
appears
to be Standard Land Use Classification
Manual
(SLUCM)
344, manufacture of transportation equipment.
Part
of
the
farm
may be zoned for residential use however
(II, 11).
Adjacent land is mostly SLUCM 812,
farming, also Class C land.
Residential uses are Class
A.
The land around the operation is
partially zoned for residential use, but it seems likely that
agricultural uses are gransfathered in
(II,
19).
In the case of
the
Ferrill residence, it is not clear whether the land on which
the sound measurements were taken is farm or strictly residence.
Rule 205 sets an allowable A~~weighted
sound level in
decibels with respect to a standard reference sound pressure
of 20 micronewtons per square meter
(dB(A)
for impulsive sound
emitted from Class C land in the daytime to Class A land of
56 dB(A)
Fast.
Rule 102 and S24 of the Act prohibit viola-
tion of this standard,
Rule 210 sets sound limits for impulsive sound from
explosive blasting.
Rule 208(h)
limits Rule 210 to emissions
52-05
—4-
from
SLUCM codes
1352
and
854, coal mining and quarrying.
Although Rule 210
is not
applicable
to
PetitionerEs
blasting
operation,
the
standards for receiving Class
A
land will
be
set
out
for
purposes
of
comparison:
dB
Slow
dB
P~ak
To
Class
A
109
130~435
OBJECTORS
The objection is the noise
and
vibration produced by the
blasting.
The
objectors include
the
following
intervenors,
with
the
distance
and direction from the site indicated:
Greg
Otto
5/8
mile
southwest
(I,
123)
Marjorie
Ferrill
1/2 mile
southwest
(I.
144)
Kathryn
Otto
1 1/4 mile east
(I.
155)
Dean
Yoder
1/4
mile southeast
(I.
164)
Other objectors besides the intervenors listed above
appeared
and
testified at the hearing
(I.
164),
Of the objectors, most live farther away
than
the
town
of
Danvers, which is about 3/4 of a mile away
(I.
140)..
About
80 persons, most of whom live in Danvers, signed a petition
supporting
the
variance
grant
(Ex.
5).
Danvers has
a popula—
tion of 921 according
to
the
1980
Census,
The bad effects alleged include the following:
1.
Cracked windows
and
plaster;
2.
Startle
effect;
3.
Inability of
small children to sleep during the day;
4.
Inability of
adults,
including
an elderly
and a
disabled person,
to sleep
during
the
day;
5.
Dogs
howling
after blasts;
6.
Startle
effect
on
pigs
and
horses,
The
noise
is
descrthed
as
comparable
to a gunshot, although
some
say
it
is not
like
a
gunshot
CI.
200.),
It is audible over
farm equipment
and
lawnmowers,
although
it
is
not
necessarily
52-06
—5—
louder
(I.
128, 158, 177,
189),
Onc~
person described it as like
thunder.
Another
compared
it to running
the
lawrunowsr
into
the
side of the house
(I. 178).
Another
compared
it
to
a
knock
on
the
door
(t.
125,
137),
SOUND
LEVEL
!4EASURENENTS
Experts for Petitioner
and
Objectors
and the Agency have
made
sound
level
measurements,
Petitioner~s
expert
made
measurements near the pit
and at Marjorie Ferrill~sproperty
line
(I.
77, 100, 102,
109).
One hundred yards from the blast,
he read 118.8
dB(A)
with
the frog in
the
open
and
113.1
with
it
in the pit.
This 5.7 dB reduction with
the pit
corresponds
to
roughly a 75
reduction
in sound energy
(1.
110).
At the
property line, he had
difficulty hearing the shot over traffic
and
the wind,
and
was
unable to measure it
(I.
78).
Petitioner
also
does
continuous
sound monitoring while operations are in
progress
(1,
59).
The Agency performed
sound measurements
at the
Ferrill
residence on January 14, June
24 and November 19,
1981,
Measurements were also
taken
at the
Dean
Yoder residence
on April 24, 1981, but the
impulse levels are not directly
comparable to Board standards.
The Agency inspections are
summarized
as
follows:
dB(A) Fast
dBPeak
January 14,
1981
65—67
June 24,
1981
109—113
November
19, 1981
60—68
82—89
The
Agency
concluded
that
the
sound
levels
were
lower
than
the
level
necessary
to protect the public
health
and
safety~
The probability of
breakage
of
glass
or plaster was less
than
one in one hundred
million.
Using
an
International Standards
Organization
(ISO)
technique
to
n~asure
response
to noise,
the
Agency
determined
that
no
community
response
should
be.
observed.
The
Agency
recommended
a
five year variance with
conditions
including
some
additional
operational
changes.
Objectors
~ expert
made.
sound
and
vihr~ion
measurements
at
the
Loren.
Otto
and
Marjorie
Ferrill
residences
(1.
225):
dB~
(A) Fast
Loren Otto
—
November 5,
1981
64—67
Marjorie
Ferrill
-
November 5,
1981
64-74
52-07
—6—
NECESSITY FOR
VARI7~NCE
For
purposes
of
this
variance
the
Board
will
assume
that
Petitioner’s
operation
is
on
Class
C
land
and
that
the
Ferrill
residence
is
on
Class A
land.
Sound
levels
at
the
adjacent
Ferrill residence
range
from
60
to
74 dB(A)
Fast,
in excess
of the 56 dB(A)
daytime Class C to A standard of Rule 205.
Because the blasting is not done at a mining operation, it
is not subject to Rule 210.
A variance from Rules 102,
205
and Section 24 of the Act are therefore necessary.
ADDITIONAL
NOISE REDUCTION
STEPS
A number
of
additional noise reduction steps have been
suggested.
In
the
petition,
Petitioner suggested a vegetative
barrier.
The
Agency
suggested
placement of the charges in the
downwind corner of the pit (Recj.
The record also suggests
that the noise carries better when there is high humidity or
a thermal inversion.
The noise also tends to carry downwind
(I.
194).
Blasting could be cancelled when conditions are
such that the sound would carry well
in a
direction toward
objectors.
The Agency also suggested sequential blasting to avoid
the startle effect by having fewer sequences than individual
blasts.
Petitioner responded that either the first blast
would detonate all the charges, or
they would be blown off
the frogs.
The objectors1
expert suggested construction of
a
mr~,~h1~
~
~
rw~r
fh~
p~
i~
~Vh1~
~
~imnr
~i-i
~
fb
reasons~including prohibitive weight were It
to be
made
large enough to cover 40 foot frogs, and build
up
of
toxic
gasses inside after explosions.
HARDSHIP
Petitioner1s
operation
is
a small business engaged in a
new
basic
manufacturing
industry.
Petitioner h~asmade substan-
tial
progress
toward
compliance
with the most restrictive noise
standards.
It
is
apparent
that
the business would be shut down
if immediate compliance were
required.
Grant of a variance will
allow
time
for
further
efforts
toward
compliance.
The noise seems to interfere
with
the
objectors’
enjoyment
of their residences.
However, the near neighbors willing to
sign
a
petition
in
support
of
the
operation
seem
to
outnumber
52-08
—7—
the objectors.
The objectors themselves have compared the
noise
to
a
knock
on
the
door,
hardly
a
level
capable
of
unreasonable interference with enjoyment of life.
The surrounding
land, is predominantly
Class C agriculture.
The peak levels seem to be well within
the
130 to
135 dB Peak
Class C to A standards for blasting at mines, although direct
comparison with dB(A)
readings
is impossible.
The Board, therefore
finds that it would impose
an
arbitrary
or unreasonable hardship to
require Petitioner to
come
into
immediate compliance with the Class C to A standard of Rule
205.
The
Board
will
grant a variance subject to conditions
as
discussed
above
in connection with compliance
steps.
Intervenors contend
that Section 33(c)
of the
Act
applies
to consideration of
variances,
This
is incorrect;
§33(c)
applies only to enforcement
actions,
However,
it
makes no
difference in this case because the factors enumerated in
35 Ill.
Adm.
Code 104,121
encompass all
of the points the
intervenors seek to
make,
Petitioners should be cautioned that renewal of
this
variance will depend on continued pr~resstoward compliance,
In that the Act does not
allow
perpetual variances~it may be
necessary for Petitioner to request a site specific rule,
or
a general rule for this
type of operation similar to Rule
210.
The motion to dismiss
is denied.
However, the Board
finds that Petitioner
has
caused
unreasonable
delay in
this
proceeding.
The
maximum
variance
term
of five years will be
shortened
by
ort~
:~c~r
to
compensate
for
this
delay~
This
Opinion
constitutes
the
Board~s
findings of
fact
and
conclusions
of
law
in
this matter,
ORDER
Petitioner
John
L. Donovan and Donovan Dynamiting,
Inc.,
are granted a variance from
Section
24
of
the
Environmental
Protection
Act
and
Rules
102
and
205
of
Chapter
8:
Noise
Pollution,
subject
to
the
following
conditions:
1.
This
variance
will
expire on April 7,
1987.
2.
This variance
authorizes the
hardening
of
steel
products by use of
explosives
at an existing site
in the E
1/2 of Section 13, T24N, RIW of the 3rd
P.M., McLean County.
52-09
—8—
3.
Detonations ~ha1l occur
only
between
8; 0ü
a, m,
and
4:30
p.m.
on
weekdays, ~onday through. Friday.
4.
No
more
than
18
ounces
of
explosive
shall be.
detonated at
any time,
5.
Detonations
shall
occur
at
the
bottom
of
the
pit
with
steel
mesh
and
rubber
mats
placed
over
the
top
of
the pit and a sheet of lead loaded vinyl
over
the
opening in the mat,
6.
The steel
mesh.
mat, rubber mat
and
lead loaded
vinyl
curtain
shall
be. adequately maintained.
7.
Steel
items
t.o be hardened shall be placed as
close to the south
end of the pit
as
practicable.
8.
If the wind is
from
the
east, the opening shall
be located in the southwest corner of the mat;
if the wind is from
the west,
it
shall
be
located
in
the
southeast
corner.
9.
A
continuous
record
of
sound
levels
shall
be
made
during operation
and
shall be made available. to
the Agency for inspection on request.
10.
Berms shall be maintained at their present or a
greater height.
Vegetation shall be established
over
the
entire
surface
to
prevent
erosion.
Peti-
tioner
shall
attempt
to establish evergreen shrubs
on the inner
slope to
damp
reflections
off
the
face
of the berms,
1..
On
or
before
June
21,
1983
Petit,ioner shall
plant
a barrier
to the west of
the
near berm consisting
of at least 50
coniferous trees at least six feet
in height.
These
trees shall be maintained
and
replanted
if necessary during the term
of
this
variance,
12..
On
or
before
April
6, 1984,
and
annually thereafter
during
the.
term
of
this
an,
Petitioner
shall
report to
th~Agency the noise reduction steps
being
taken
during
the.
term
of
the
variance together
with.
‘data
indicating
the.
degree
of
success,
13.
Within
forty—five.
days of
the
date
of
thiz
Order,
Petitioner John
L. Donovan,
individually and on
behalf of Donovan
Dynamiting,
Inc.,
shall
execute
and forward
to
the
Illinois
Environmental
Protection.
Agency,
Variance
Section, 2200 Churchill Road,
52-10
‘-9-,
Springfield,
Illinois.
62706.,
a
Certificate
of
Acceptance
‘and
Agreement
to
be.
bound
to.
all
terms
and
conditions
of
this
variance,
This
forty—five
day
period
shah
be
held
in
abeyance
for
any
period
this
matter
is being
appealed,
The
form
of
the
certificate
shall be as
follows:
(~~PIFICATION
I,
John
L.
Donovan,
individually,
and
on behalf
of
Donovan
Dynamiting,
Inc.,
having read
and
fully
understanding
the
Order
in
PCB
81-134,
hereby
accept
and agree to be bound by all of its terms and
conditions.
SIGNED
________________________
John
L. Donovan, Individually
and
on
beha.f
of
Donovan
Dynamiting, Inc.
TITLE
________________________
DATE
___________________________
IT
IS
SO
ORDERED.
Mr.
Dwnelle
concurred.
I,
Christan
.L.
Moffett,
Clerk of the Illinois Pollution
Control
Board,
hereby certify th~tt
the
above
Opinion and
Order
were
adopted
on
the
~
day
of
~
:L983
byavoteof~
1J
Illinois Polluti
trol
Board
52-11
