96185D.PDF

ILLINOIS POLLUTION CONTROL BOARD

November 21, 1996

DOUGLAS AND BARBARA OLTMAN,

Complainants,

TERRY AND KELLY COWAN,

Respondents.

)

PCB 96-185

(Enforcement-Noise)

OPINION AND ORDER OF THE BOARD (by G.T. Girard):

On February 29, 1996, Douglas and Barbara Oltman filed a complaint, pursuant to

Section 31(b) of the Illinois Environmental Protection Act (Act). (415 ILCS 5/31.) The

complaint (Comp.) alleges that Terry and Kelly Cowan had violated Sections 23 and 24 of the

Act by the operation of a window air conditioning unit. The complainants ask that the Board

enter an order directing respondents to cease and desist from further violations of the Act and

more specifically to permanently reduce the noise produced by the window air conditioner.

(Comp. at 4.) Hearing was held before the Board’s Chief Hearing Officer Michael Wallace on

August 2, 1996 in Rock Island, Rock Island County, Illinois. Other than the Oltmans and

Cowans no members of the public were present. The parties did not file briefs.

Based on the record, the Board finds that the operation of a window air conditioner by

respondents did not cause an unreasonable interference and therefore the Board finds that a

nuisance noise violation of the Act as alleged in the complaint did not occur.

STATUTORY FRAMEWORK

The complainants allege that the respondents have violated Sections 23 and 24 of the

Act. (Comp. at 2.) The complainant does not rely on numerical quantification of the noise

emissions to prove a violation, therefore, this case is characterized by the Board as a “nuisance

noise” case. (See, Ferndale Heights Utilities Co. v. Illinois Pollution Control Board, 44 Ill.

App. 3d 967, 358 N.E.2d 1224, 1228 (1st Dist 1976). ).

The Act and Board rules prohibit noise pollution and with regards to “nuisance noise”,

the prohibitions in the Act and Board regulations turn on the degree to which the noise

interferes with a complainant’s normal activities. Section 23 of the Act states:

The General Assembly finds that excessive noise endangers physical and

emotional health and well-being, interferes with legitimate business and

recreational activities, increases construction costs, depresses property values,

offends the senses, creates public nuisances, and in other respects reduces the

quality of our environment.

It is the purpose of this Title to prevent noise which creates a public nuisance.

(415 ILCS 5/23.)

Section 24 of the Act prohibits noise pollution stating:

No person shall emit beyond the boundaries of his property any noise that

unreasonably interferes with the enjoyment of life or with any lawful business

or activity, so as to violate any regulation or standard adopted by the Board

under this Act.

(415 ILCS 5/24.)

Thus, under the Act, a noise violation has occurred if the complainant has proven that

the complained of noise has unreasonably interfered with the complainant’s enjoyment of life

or with the pursuit of any lawful business or activity.

The Board has previously determined in “nuisance noise” proceedings that

unreasonable interference is more than an ability to distinguish sounds attributable to a

particular source. Rather, the sounds must objectively affect the complainant’s life or business

activities. See Kvatsak v. St. Michael’s Lutheran Church, PCB 89-182, 114 PCB 765, 773

(Aug. 30, 1990) (Kvatsak); Kochanski v. Hinsdale Golf Club, PCB 88-16, 1001 PCB 11, 20-

21 (July 13, 1989), rev’d on other grounds, 197 Ill. App. 3d 634, 555 N.E.2d 31 (2d Dist.

1990).

The Illinois Supreme Court has directed that the Board must consider the facts of the

case in light of the factors outlined by 33(c) of the Act in determining whether unreasonable

interference has occurred under the Act and Board rules. Wells Manufacturing Co. v. PCB,

73 Ill. 2d 226, 232-33, 383 N.E.2d 148, 150-51 (1978) (“nuisance” air pollution; first four

factors only); see Ferndale Heights Utilities, 44 Ill. App. 3d at 967-68, 358 N.E.2d at 1228.

Those factors as set forth in Section 33(c) of the Act are as follows:

(i)

the character and degree of injury to, or interference with the

protection of the health, general welfare and physical property of the

people;

(ii)

the social and economic value of the pollution source;

(iii)

the suitability or unsuitability of the pollution source to the area in

which it is located, including the question of priority of location in the

area involved;

(iv)

the technical practicability and economic reasonableness of reducing

or eliminating the emissions...resulting from such pollution source;

and

(v)

any subsequent compliance.

(415 ILCS 5/33(c).)

FACTS

Complainants have lived at 4512 Twenty-first Avenue in Moline, Rock Island County,

Illinois for forty-five years. (Tr. at 7.) Respondents moved into the house next door at 4510

Twenty-first Avenue sometime prior to August 28, 1995

. (Tr. at 8.) Also, sometime prior to

August 28, 1995 an air conditioning unit was installed by previous owners (Tr. at 8) in a

window in respondents’ home approximately 13 feet from complainants’ home

. (Tr. at 9-10;

Pet. Exh. 6.) The window air conditioner is a 20,000 BTU

unit. (Tr. at 49.)

The record is not clear on the exact dates or duration that the window air conditioner

was operated. Mrs. Oltman testified that she kept a log of dates, but did not file a copy with

the Board. (Tr. at 34.) The Oltmans maintained that operation was “continuous” in the 1994

and 1995 cooling seasons. (Tr. at 9-12, 19-21.) Mrs. Oltman maintains that the air

conditioner was operated from May to November in 1994 (Tr. at 20), and from May until the

end of October in 1995. (Tr. at 20-21.) Mr. Cowan disagreed with the Oltman’s

characterization of the nature and duration of the air conditioner’s operation. (Tr. at 47.) Mr.

Cowan described usage of the unit as “an off and on basis” (Tr. at 48), from May into

September during 1994. (Tr. at 48-49.) Mr. Cowan described operation of the unit during

1995 as “full-time” from May to October. (Tr. at 48-49.)

Mr. Oltman described the noise produced by the air conditioner as a “vibration type of

noise” which affected his wife’s health. (Tr. at 13.) Mr. Oltman stated that since the unit is

close to the lot line, the Oltmans’ get an excessive amount of vibration from the unit. (

The sound is audible throughout the house and the complainants are unable to sleep due to the

noise, according to Mr. Oltman. (Tr. at 14-15.)

Mrs. Oltman testified that the noise could be heard through the whole house and that

she and her husband could not “even go to bed”. (Tr. at 19.) Mrs. Oltman described a night

that they were down in their basement trying to escape the noise and she states: “our ears

There is substantial confusion in the transcript concerning when respondents moved into the

house; however it would appear that the move definitely took place before August 28, 1995

and probably in 1994. (Tr. at 9, 13 and 63.)

At one point in the transcript the parties agree that the unit was installed in May of 1994 and

removed in the fall. (Tr. 19-21 and 48-49.) The unit was reinstalled in May of 1995 until the

fall. (

BTU means British Thermal Units.

were just about ready to pop that it was so loud coming through the basements”. (Tr. at 30.)

Mrs. Oltman also indicated that the noise was so significant that she and her husband were

unable to use the breezeway in their home and that they were unable to have company. (Tr. at

35 and 42.)

Mrs. Oltman indicated that the noise was louder in 1995 and attributed the increased

noise to the Cowans running the air conditioning unit on high. (Tr. at 21.) Mrs. Oltman

stated that the noise gave her a headache and that she had high blood pressure and the noise

“damages your health”. (Tr. at 21 and 31.) Mrs. Oltman states:

. . . we cannot live that way. We can’t live with an air-conditioner on that side

of the house. Noise. We are deprived of having any kind of company. We are

deprived of our sleep, emotionally. And the noise - -was something else.

(Tr. at 42-43.)

Mrs. Oltman admitted that she had been diagnosed with a heart condition since she was

eight years old and had been treated for high blood pressure since 1990. (Tr. at 31, 34.) The

Oltmans also testified that they had contacted Beling Engineering to conduct noise testing.

(Tr. at 11.) The Oltmans provided an affidavit (Pet. Exh. 5) which indicates that tests were

performed; however there was no testimony from Beling Engineering.

Mr. Cowan testified that the window air conditioner unit had been replaced by a central

air conditioner unit which was purchased on July 1, 1996. (Tr. at 51, 61.) The central air

unit is located on the west side of the Cowan’s home, which is on the opposite side from the

placement of the window air conditioner. (Tr. at 6, 52; Pet. Exh. 6.) He also indicated that

he did not intend to install any additional units. (Tr. at 51.)

ANALYSIS

The Board first notes that the alleged violation of Section 23 of the Act must be

dismissed. Section 23 of the Act includes findings by the Illinois General Assembly regarding

noise, including a finding that excessive noise can reduce environmental quality. However,

Section 23 of the Act does not contain any prohibitions which the Board can rule to have been

violated by respondents. Therefore, the Board may only find a violation of Section 24 of the

Act which prohibits noise beyond the boundary of a person’s property. (Metivier

et al

. v.

Kenyon PCB 92-74 (December 16, 1993) (Metivier).)

The testimony of the Oltmans clearly demonstrates that the noise from the air

conditioning unit interfered with their lives. To determine if the interference was

“unreasonable” the Board must examine the factors enumerated in Section 33(c) of the Act.

Although Mr. and Mrs. Oltman did not specifically argue these factors the Board can address

the factors based on the testimony of the parties. (

See

, Hoffman v. City of Columbia, PCB

94-146, (October 17, 1996).)

Section 33 (c)(i): the character and degree of injury to, or interference with the protection of

the health, general welfare and physical property of the people.

In assessing the character and degree of the injury or interference caused by the noise

emissions from the air conditioning unit, the Board looked to whether the noise “substantially

and frequently interferes with the use and enjoyment of life and property, beyond minor

trifling annoyance or discomfort.” (Metivier at 4,

citing

Kvatsak.) Mrs. Oltman testified

that she and her husband were unable to have company in their home and that they were

unable to use the breezeway. Both Mr. and Mrs. Oltman testified that they were unable to

sleep due to the noise and that the noise was constant. Mr. Cowan testified that the air

conditioner was not run continuously during the 1994 cooling season, but, admitted that the

air conditioner ran full-time during the 1995 cooling season.

Section 33(c) (ii): the social and economic value of the pollution source.

The record contains no evidence regarding the social and economic value of the air

conditioning unit.

Section 33(c)(iii): the suitability or unsuitability of the pollution source to the area in which it

is located, including the question of priority of location in the area involved.

The record indicates that the window air conditioning unit was a 20,000 BTU unit.

However, there is no discussion on the record as to whether this is an unusual size for a

private residence window air conditioner. The record does establish that complainants have

lived in their home for over 45 years and that the respondent moved in sometime in the last

two years. The record establishes that the air conditioner at issue was installed prior to the

Cowan’s purchase of the home.

Section 33(c)(iv): the technical practicability and economic reasonableness of reducing or

eliminating the emissions...resulting from such pollution source.

The record indicates that the window air conditioner has been replaced by a central air

conditioning unit.

Section 33(c)(v): any subsequent compliance.

The complainants agree that the noise source has been removed. (Tr. at 36-37.) Mrs.

Oltman testified that she and her husband proceeded with this case after removal of the

window unit because they were concerned that the respondents would reinstall a window air

conditioning unit. (Tr. at 37.)

Analysis Summary

A review of all the factors set forth in Section 33(c) of the Act does not support a

finding that the noise from the window air conditioning unit was an unreasonable interference

in the lives of the complainants. Although testimony by the complainants demonstrate that the

noise interfered with their lives, the record does not support a finding that such interference

was unreasonable. As previously stated, the interference must go beyond an annoyance and

the Board is not convinced that the complainants have sufficiently demonstrated an

unreasonable interference. The health problems cited by Mrs. Oltman were present before the

respondents moved into their home and began using the air conditioning unit. Further,

although the proximity of the window air conditioning unit may have contributed to the

interference, the record does not establish that the air conditioning unit was unsuitable for

usage in a residence. Finally, the confusion in this record by the parties of the facts, including

the times and dates of operation of the window air conditioner, does not point to a finding of

unreasonable interference.

CONCLUSION

After careful review of the record in this case and consideration of the factors in

Section 33(c) of the Act, the Board finds that no violation of Section 24 of the Act occurred.

The record in this case does not establish that the window air conditioner unreasonably

interfered with the Oltmans’ use and enjoyment of their property. Therefore this matter is

dismissed.

This opinion constitutes the Board’s findings of fact and conclusions of law.

ORDER

The Board finds that no violation of Section 24 of the Environmental Protection Act

(415 ILCS 5/24) has occurred. This matter is dismissed and the docket is closed.

IT IS SO ORDERED.

Section 41 of the Environmental Protection Act (415 ILCS 5/41 (1994)) provides for

the appeal of final Board orders within 35 days of the date of service of this order. The Rules

of the Supreme Court of Illinois establish filing requirements. (See also 35 Ill.Adm.Code

101.246 "Motions for Reconsideration.")

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that

the above opinion and order was adopted on the _____ day of _________________, 1996, by

a vote of ______________.

___________________________________

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board