ILLINOIS POLLUTION CONTROL BOARD
October
8,
1981
ILLINOIS
ENVIRONMENTAL
PROTECTION
AGENCY,
Complainant,
v.
)
PCI3
80-181
ILLINOIS
FRUIT
AND
PRODUCE
COMPANY,
an
Illinois
corporation,
and
ATCHISON TOPEKA
and
SANTA FE COMPANY,
a Delaware
)
corporation,
Respondents.
MS.
MARY
JO
MURRAY,
ASSISTANT
ATTORNEY
GENERAL,
APPEARED
ON
BEHALF OF THE COMPLAINANT.
MS. JUDITH KELLY, DRENDEL
& KELLY, APPEARED ON BEHALF OF
THE
RESPONDENT
ILLINOIS FRUIT
AND
PRODUCE
COMPANY.
OPINION
AND
ORDER
OF ThE
BOARD
(by D.
Anderson):
This matter comes before the Board upon a complaint filed
October 1,
1980 by the Illinois Environmental Protection
Agency
(Agency)
naming as respondents Illinois Fruit and
Produce Corp.
(IFP),
an Illinois corporation, and the
Atchison, Topeka and Santa Fe Company
(Santa Fe),
a Delaware
corporation.
The complaint alleges violations
of Section
24
of the Illinois Environmental Protection Act
(Act)
and ~u1es
102 and 202
of Chapter
8:
Noise Pollution in connection with
emissions from refrigerated railcars at a warehouse owned cy
IFP in Streator.
An answer was filed on November 3,
1980.
Hearings were held at Ottawa on June 26, July 10
and
July 28,
1931.
Members of the public attended.
IFP owns a warehouse situated near Twelfth Street and
Quality Lane in Streator.
The facility is
in LaSalle County,
but adjacent residential property is actually in Livingston
County (R-9,334).
The warehouse is on a spur off the mainline
of the Santa Fe Railroad.
Proceeding west from the warehouse
one encounters
first the siding, then the mainline tracks,
then Wasson Street and finally residential houses
(Ex.
20).
The distance is about
230 feet (R—202, Ex.
23).
The warehouse
is Class B land;
the residences are Class A
(R-48).
Refrigerated railroad cars are spotted on the siding and
unloaded into IFP’s warehouse.
This case concerns noise
emitted from refrigeration units on the siding.
43—339
—2—
Count
I alleges emission of noise that unreasonably inter-
feres with enjoyment of life,
in violation of Rule 102 and
Section 24 of the Act.
Count II alleges violation of noise
standards for sound emitted to Class A land during daytime
hours, in violation of Rule 202 and §24.
The complaint
alleged continuing violations from August 24, 1978 and partic-
ularly on August 24 and September
27,
1978, and on April 17,
July 10, and November 2,
1979.
The warehouse commenced operation around January,
1978.
On June
12,
1978,
Mr. George Palya filed a complaint with the
Agency
(R-10,
20; Ex.
6).
On July 25 the Agency conducted
an inspection, but there were no cars on the siding
(R—39,
158,
194,
202; Ex.
20, 21).
The Agency conducted
a second inspec-
tion on August 24
(R—39,
44,
81,
86,
93,
144; Ex.
8, 22).
Two
cars were present; one or both refrigerators were operating on
self-contained diesel power.
Sound pressure level readings
at
frequencies greater than 1000 Hz
(Hertz)
indicated violations
of daytime Class B to A noise standards of Rule 202.
Levels
were four to sixteen decibels in excess of the standards in
this range.
Levels were approximately equal to the standards
for intermediate frequencies and in compliance at low frequen-
cies
(Ex.
8)
On August 22,
1978 the Agency notified IFP that it had
received a complaint (R—162,
258; Ex.
22).
On September 12
IFP responded with a letter from Mr. Don Donelson, general
manager and vice president
(Ex.
23).
The response indicated
that IFP believed
sound
levels at the residences to be accept-
able and at a level comparable to traffic and passing trains.
IFP stated that it made a definite effort to unload cars and
turn them off as soon as they arrived.
IFP stated that
Mr. Palya was “over-reacting to the problem”.
Mr. Palya testified that during the first six months IFP
had had as many as four cars on the siding
at one time and
that one car “ran for ten solid days” during both day and
night.
Cars would arrive on Friday afternoon
and
run through
the weekend while nobody was working at the warehouse.
The
manager of IFP refused Mr. Palya’s suggestion that IFP discon-
tinue this last practice
(R—ll).
On September 27,
1978 the Agency conducted a third inspec-
tion
(R—48,
163,
188,
204,
237, 249 and 259; Ex.
10,
24, 25).
Three cars were on the siding, but only one railcar refrigera-
tion
unit
was operation,
on diesel power.
Sound level measure-
ments taken from residential property indicated violations of
up to nine decibels over the daytime Rule 202 standard for
high frequencies.
43—340
—3—
The Agency received additional citizen complaints between
October 30 and November 29, 1978
(R-245, Ex.
5,
19).
On November 2,
1978 a compliance conference was held
(R—168,
196, 201,
205, 252,
259; Ex.
25,
26,
27,
28,
29,
30).
Discussion
centered on construction of a barrier wall
and
scheduling of
railcars
(R-252,
254;
Ex.
38,
29).
The Agency requested notifi-
cation of any corrective measures IFP planned to take
(Ex. 28).
On January 2, 1979 IFP wrote a letter to the Agency indica-
ting that it was studying a concrete wall.
The contractor
could not work in winter months
and
would not quote a price
(Ex.
29,
30).
IFP indicated a need to examine federal regula-
tions on railroad construction
(Ex.
30).
The refrigeration units on the cars have four components:
a diesel engine,
an electric generator,
an electric motor, and
a compressor.
The compressor motor can be powered by the
diesel generator, or by connection to an external electrical
source
(R-282,
304,
357.
On January
2,
1979 IFP suggested the
possibility of installing an electric supply system so the
diesels could be turned off.
IFP suggested this might bring
the noise down to an acceptable level
(Ex.
30).
On February
6,
1979 the Agency received another citizen
complaint
(Ex.
21).
On April 17,
1979 the Agency conducted
a fourth inspection
(R—54, 104, 239,
259; Ex.
11, 12).
One refrigerator car was
operating.
Sound
level measurements indicated violations of
daytime standards for frequencies in excess of 500 Hz.
Levels
2 to 15 dB over the standards were recorded.
Levels at lower
frequencies were approximately equal to or slightly less than
the standards
(Ex.
11).
On May 29,
1979 the Agency conducted a fifth inspection
(R—6l,
65,
97, 101,
121, 144; Ex.
13,
14)
.
One refrigeration
unit was in operation.
Sound levels were less than the stand-
ards for all frequencies
(Ex.
14).
The report indicated that
construction of electrical outlets had commenced.
On July 10,
1979 the Agency conducted a sixth inspection
(R—66,
78,
109, 144,
175,
259; Ex.
15,
31)
Six railcars were
on the siding, four refrigerated.
Three refrigerators were
operating.
Electrical hookups were not yet in operation.
Measured sound levels were as much as
11 dB in excess of day-
time standards at frequencies in excess of 1000 Hz.
Levels
at lower frequencies were approximately equal to the standards.
43—34 1
—4—
On July 27,
1979
the Agency notified IFP of the inspection.
The letter noted the slow work on the electrical hookups
(R-l98,
Ex.
32).
On August
8, IFP explained the delay and indicated
it had spent over $20,000
(Ex.
33).
On October 5 and 19,
IFP
further stated that extension cords had been received and that
the electrical system was in operation
(Ex.
34,
35).
The
latter letter makes reference to an Agency enforcement letter
of October
5, which is not in evidence.
IFP indicates that
the Agency had taken exception to compressor noise.
IFP
stated
that
“as
we
were
always
talking
about
the
noisey
engine
in the past, we did not believe it to be
a major problem.”
(sic)
(Ex.
35)
On November 2, 1979 the
Agency
conducted
a
seventh
inspec-
tion.
Three cars were on the siding.
One refrigerator was
running without diesel power
(R-67,
78,
112,
144;
Ex.
16,
17).
Sound levels were as much as
11 dB in excess
of the daytime
standards for frequencies in excess of 1000 Hz.
However,
levels were within the standard for frequencies of 500 Hz or
less.
This low frequency sound was markedly less than with
the diesels running
(Ex.
16).
At this point
it was apparent
that low frequency noise was associated with the diesel/genera-
tor; high frequency with the motor/compressor.
On December 6, 1979 the Agency notified IFP of the inspec-
tion.
The Agency stated that even with electrical hookups
compressor noise continued to be a problem
(Ex.
36).
IFP
responded with two letters on December 28.
IFP indicated that
construction of a building over the siding would cost $600,000
and
that a wall would not be effective because of large openings
required by federal regulations.
This action was commenced against IFP on October
1,
1980.
On March 23, 1981 the Agency conducted its eighth inspec-
tion.
(R—67,
80, 119,
122,
126,
138; Ex.
18).
One refrigerated
car was operating on electrical power and another on diesel.
This latter was delivered immediately before the measurements
were taken.
Sound pressure levels were as much as
6 dB over
the daytime standards for frequencies of 1000 Hz or greater.
Levels were in compliance with the standard for lower frequen-
cies.
Mr. Palya testified that the noise kept him from opening
windows and irritated him
(R-lO).
Mrs. Alexandra Cole testified
that it was like a loud lawnmower going constantly.
It inter-
fered with sleep and prevented conver3ation in the yard
(R-27).
43—342
—5—
IFP cross-examined the Agency’s witnesses and questioned
the proof on several points.
However, IFP’s case went to
mitigation.
The Board
finds that IFP violated the daytime noise stand-
ards of Rule 202 for Class B to Class A land on August 24 and
September 27,
1978 and on April 17, July 10,
and November 2,
1979.
The Board also finds IFP in violation of Rule
102 and
§24 of the Act, unreasonable interference with enjoyment of
life, substantially as alleged in the complaint.
On June 22,
1981 IFP filed a petition requesting a variance
from Rules
202 and 203
(PCB 81-104).
Upon request of IFP the
Board has incorporated the record into this action (Order of
September 3, 1981).
The Board will consider the compliance
plan in connection with the penalty and in connection with the
variance which will be granted in a separate Order.
On September 12, 1980 IFP hired Mr. Bruce Kleinlein as
general manager
(R-347,
367,
369, 374).
The previous manager’s
nonresponse to complaints was
an important factor which led to
Agency involvement and the filing of this action
(R-10,
347).
On review of the record it appears that there were several
inexpensive steps IFP could have taken early on which would
have avoided this enforcement action.
IFP’s early intransi-
gence is a major factor in deciding the amount of the penalty.
There are three approaches to compliance:
use
of electrical
hookups to eliminate diesel noise; reduction in the number of
cars
and
the time the refrigerators are running;
and, construc-
t.ion of a barrier wall to block sound.
As is noted above, on January 3,
1979 IFP suggested
installation of the electrical hookups.
These were completed
prior to December 6,
1980 and failed to achieve compliance.
The Agency has denied recommending this, but it clearly
acquiesced in their construction
(Ex.
31).
These did eliminate
the low frequency noise which,
although usually in compliance
with Board standards, was a major source of irritation
(R-ll,
12, 347).
The electrical hookups will be used as part of the
overall noise reduction plan
(R-376).
They cost $18,000 to
$20,000
(R-342)
In the variance petition IFP asks for time prior to con-
struction of a barrier wall to implement steps to reduce the
number
of cars and the time of refrigerator operation.
IFP
has not yet committed itself to barrier
construction
and
feels
that other measures may satisfy the neighbors even if they
still involve occasional noise in excess of the standard.
43—343
—6—
IFP
has
an
oral
agreement
with
the
Santa
Fe
which
provides
that
the
latter
will
hold
cars
until
IFP
is
ready
to
unload
them (R—270,
296, 344,
349,
358,
370).
The diesel units will
be
promptly
turned
off
and
compressors
run
by
electricity
(R—302,
353,
356,
376,
381)
.
Refrigerators will not be left
running overnight or over weekends
(R-304,
316,
344, 350).
It is not clear whether an enforceable contract has been
executed
with
the
Santa
Fe
(R-349).
Since
this
is
an
essential
part
of
the
plan,
the
Board
will
order
the
railroad
to
hold
the cars until requested by IFP.
The IFP warehouse operates around the clock,
five days per
week.
Trucks delivering produce are unloaded in the morning,
railcars in the afternoon.
At night orders
are made up and
delivery trucks loaded
(R-335,
360).
IFP’s past inability to
unload cars on arrival was in part caused by its failure to
allocate to the railcars manpower from unloading or loading
trucks.
IFP has now agreed to increase the work crews
so the
cars can be unloaded in
3 to
4 hours, and to schedule overtime
if necessary to unload the cars on arrival
(R—358,
372).
A
standby crew is available if it
is necessary to unload
a car
on Saturday
(R-358).
IFP estimates the cost of the work
changes
at about $10,000 per year
(R-359,
371).
Under its former practice IFP turned refrigerators off
upon completion of unloading.
It now disconnects the compressors
from the electric source
as soon
as possible.
In winter months
it may be possible to shut the refrigerators off on arrival.
During summer it may be necessary to run them for up to two
hours
(R—302,
353,
356,
376,
381).
IFP has estimated its rate
of railcar receipts at ten to twelve per month
(R-297, 340,
377,
381).
The maximum hours
of operation of compressor units
would then be about twenty to twenty-four hours per month
(R-377).
IF? concedes that the steps noted above will leave it out
of compliance during delivery
of
a car and possibly for a time
during unloading.
Compliance during unloading may require
construction of a barrier wall or enclosure.
The latter
is
estimated to cost $250,000
(R—365).
IFP hired a noise consultant during 1981
(R-276).
There
are three recommended barrier walls:
the temporary Agency
version, the permanent Agency version
and
IFP’s consultant’s
version (R—186, 280, 303,
312,
318,
362,
371,
378).
The Agency
estimated $26,000 for a 210 by 12 foot wall of railroad ties
and
transite (R-l86).
IFP earlier expressed a preference for
a concrete wall which the Agency estimated at $250,000
(R-l86,
Ex.
29,
30)
43—344
—7--
IFP’s
expert
questioned
the
Agency’s
designs
on
account
of
effectiveness,
weather
resistance
and
structural
soundness
(R-284,
288).
He recommended that, if a
harrier
was
to
be
built,
it be of “4-inch thick standard industrial grate,
sound absorptive panel”
(R-287).
These would be on botri sides
of the cars to stop reflection off the building.
The walls
would be 20 feet high.
The panels would be hung from a steel
frame on concrete footings.
The total cost would be $25,000
to $30,000
(R—289,
313,
363).
There is no guarantee that any
of the proposals would result in full compliance
(R-364).
IF? rejected the Agency’s suggested temporary structure
in part because of the effect on the value of its new facility
(R-379).
In its first letter to the Agency, IF? noted that
its
facility
was
new
and
that
“our
old
plant
was
quite
close
to
homes
and
we
were
aware
of
these
problems.”
(Ex.
23)
The
Board
notes
that
the
parties
have
not
addressed the
possibility
of
a
vegetative
barrier.
There
appears
to
be
space
between
the
siding
and
mainline
in
which
trees
and
shrubs
could
be
planted
(Ex.
20,
21),
There
may
also
be
room
between
the
tracks
and
road.
The
Board
will require as
a
condition
of
the
variance
in
PCB
81—104
that
IFP
submit
to
the
Agency
within
60
days
a
report
on
planting
feasibility.
If
the
Agency
finds
the barrier feasible, IF? shall conduct
and
maintain
the
required
plantings.
As
noted
above,
the
noise
interfered
with
normal
activi-
ties in the residential area from January,
1978 through June,
1981.
The
social
and
economic
value
of
the
warehouse
is
not
questioned
(R-23).
The area exhibited high ambient noise
levels
and
was
subjected
to
the
passing
of
32
trains
per
day
which
made
for
more
noise
than
that
in
question
here
(R-266).
The
area
adjacent
to
the
tracks
is
suitable
for
warehouse
activity.
Noise
reduction
is
technically
practicable
and
economically
reasonable
even
if
construction
of
a
barrier
wall
is
necessary.
The
Board
will
order
the
respondents
to
perform
various
steps toward compliance.
The Board will not include a cease
and desist order, noting the variance.
The Board will require
Respondent to take additional measurements if requested by
residents.
The Board notes that the principal complainant
has expressed satisfaction with current compliance
(R—l2),
Santa Fe did not appear in this proceeding through counsel,
although its agent attended and testified
(R-264).
IFP claims
Santa Fe is exonerated through a clause in its contract with
Santa Fe
(R—375,
400).
The record in this case
is adequate to
43— 34 5
—8—
support a finding that Santa Fe caused or allowed the violations
in question.
The railroad cannot delegate its responsibility
to comply with environmental laws.
The Board finds that a penalty of $750 is necessary to aid
enforcement of the Act in view of IFP’s early reluctance to
take simple steps to reduce noise upon receipt of complaints.
No monetary penalty will be assessed against Santa Fe.
This
Opinion constitutes the Board’s findings of fact and conclusions
of law in this matter.
ORDER
1.
Respondents Illinois Fruit and Produce Corp.
and the
Atchison,
Topeka
and
Santa
Fe
Company
have
violated
Rules
102 and 202 of Chapter
8:
Noise Pollution and
§24 of the Environmental Protection Act.
2.
Respondent Illinois Fruit and Produce Corp.
shall
comply with the conditions
of the variance in PCB 81-104.
3.
Respondent Atchison, Topeka and Santa Fe Company shall
hold cars until Illinois Fruit and Produce Corp.
requests
delivery.
4.
Within thirty-five days of the date of this Order,
Respondent
Illinois
Fruit
and
Produce
Corp.
shall,
by
certified check or money order payable to the State of
Illinois, pay a civil penalty of $750 which is to be
sent to:
State
of Illinois
Fiscal
Services
Division
Illinois
Environmental
Protection
Agency
2200 Churchill Road
Springfield,
Illinois
62706
IT
IS SO ORDERED.
Mr.
Goodman
concurred.
I,
Christan
L.
Moffett,
Clerk
of
the
Illinois
Pollution
Control Board, hereby certify that the
above
Opinion
and
Order
were adopted on the
~‘i~ day of
~
,
1981
by
a
vote
of
~
(~/~L~:/~
~
2
C
Christan
L.
Mof~q-?t,
Clerk
Illinois
Pollutio’l~
Control
Board
43—346