94146D.PDF

ILLINOIS POLLUTION CONTROL BOARD

October 17, 1996

DOROTHY L. HOFFMAN,

)

Complainant,

)

PCB 94-146

)

(Enforcement-Noise)

CITY OF COLUMBIA,

)

Respondent.

)

MATTHEW J. MARLEN APPEARED ON BEHALF OF THE COMPLAINANT:

THOMAS D. ADAMS OF ADAMS AND HUETSCH, APPEARED ON BEHALF OF

RESPONDENT.

OPINION AND ORDER OF THE BOARD (by J. Yi):

This matter is before the Illinois Pollution Control Board (Board) pursuant to a

complaint filed by Dorothy L. Hoffman (complainant) against the City of Columbia (City or

respondent) on May 5, 1994. Ms. Hoffman filed this citizen enforcement action pursuant to

Section 31(b) of the Environmental Protection Act (Act). (415 ILCS 5/31(b)(1994).)

Ms. Hoffman alleges that the City violated the prohibition of noise pollution set forth

in Sections 23 and 24 of the Act and the Board’s regulation at 35 Ill. Adm. Code 900.102, in

the operation of the City’s maintenance facility located southeast of Ms. Hoffman’s property at

523 Giffhorn Street, Columbia, Illinois. (415 ILCS 5/23 and 5/24 (1994).) Several hearings

were held in this matter before Board Hearing Officer John Hudspeth on October 25, 1994,

October 31, 1995, December 11, 12 and 21, 1995. The parties filed briefs on March 28,

1996, May 20, 1996 and June 3, 1996. For the reasons stated below we find respondent in

violation of Section 24 of the Act and 35 Ill. Adm. Code 900.102.

Applicable Laws

The specific sections of the Act and the Board regulations on which Ms. Hoffman bases

her complaint are: Sections 23 and 24 of the Act, and 35 Ill. Adm. Code Section 900.102 of

the Board’s regulations.

Section 23 of the Act states that: “[t]he 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.”

Section 24 of the Act states that “[n]o 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.”

Section 25 of the Act states that the Board, “pursuant to procedures prescribed in Title

VII of the Act, may adopt regulations prescribing limitations on noise emissions beyond the

boundaries of the property of any person and prescribing requirements and standards for

equipment and procedures for monitoring noise and the collection, reporting and retention of

data resulting from such monitoring”. (415 ILCS 5/25 (1994).)

Section 900.102 of the Board regulations states that “[n]o person shall cause or allow

the emission of sound beyond the boundaries of his property, as property is defined in Section

25 of the Act, so as to cause noise pollution in Illinois [Section 900.101 has defined noise

pollution to be “the emission of sound that unreasonably interferes with the enjoyment of life

or with any lawful business or activity], or so as to violate any other provisions of this

chapter.”

In determining whether noise rises to the level of a nuisance, the unreasonable

interference with complainant’s enjoyment of life, the Board takes into consideration Section

33(c) of the Act which states that “[i]n making its orders and determinations, the Board shall

take into consideration all the facts and circumstances bearing upon the reasonableness of the

emissions, discharges, or deposits involved including, but not limited to:

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

health, general welfare and physical property of the people;

The social and economic values of the pollution source;

The suitability or unsuitability of the pollution source in the area in which it is

located, including the question of proximity of location in the area involved;

The technical practicability and economic reasonableness of reducing or

eliminating the emissions, discharges or deposits resulting from such pollution

source; and

Any subsequent compliance.

(415 ILCS 5/33(c) (1994).)

The Board in determining a remedy must consider Section 42(h) of the Act which states

that “[i]n determining the appropriate civil penalty to be imposed, the Board is authorized to

consider any matters of record in mitigation or aggravation of penalty, including but not

limited to the following factors:

The duration and gravity of the violation;

The presence or absence of the diligence on the part of the violator in

attempting to comply with the requirements of this Act and Regulations

thereunder or to secure relief therefrom as provided by the Act;

Any economic benefits accrued by the violator because of delay in compliance

with requirements;

The amount of monetary benefit which will serve to deter further violations by

the violator and to otherwise aid in enhancing voluntary compliance with this

Act by the violator and other persons similarly subject to the Act; and

The number, proximity in time, and gravity of previously adjudicated violations

of this Act by the violator.

(415 ILCS 5/42(h) (1994).)

Preliminary Matter

At hearing complainant entered into the record a video tape as Comp. Ex#38. (Tr. at

104.) The hearing officer allowed the video tape to be entered into the record for the purpose

“of how the facility appears”. (Tr. at 104.) The hearing officer stated “I don’t think that any

of the noise emanating from the tape are properly considered by the Board in this case”. (Tr.

at 104.) Then the hearing officer pursuant to continuing objections directed the parties to

argue the issue before the Board. (Tr. at 105.) Respondent, in its brief, argues that the video

tape should not be entered into the record because if it is for the purpose of visual description

it is cumulative and if it is for the purpose of describing the noise there is no foundation that

the recorded levels are accurate and cites to Annino v. Browning-Ferris Industries of Illinois,

(August 18, 1988), PCB 87-139 and Kvatsak v. St. Michael’s Lutheran Church, (August 30,

1990), PCB 89-182. (Resp. at 5-7.)

Complainant argues that the tape is not being admitted

for the purposes of the quantity of sound but for the quality of the type of sounds and cites to

Madoux v. Straders Logging and Lumber, (May 21, 1991), PCB 90-149. (Reply at 1-2.)

The Board will allow the tape to be entered into the record for the visual depiction of

the facility while in operation and for a description of the types of noise, but not for the

purpose of characterizing the volume of the noise level. As the Board found in Madoux the

video tape can be utilized to demonstrate the noise, the sound of a warning device or the roar

of an engine, but not for any substantive purposes. Additionally, the video is not cumulative

The respondent’s brief will be referenced to as “Resp. at ”.

The complaint’s reply brief will be referenced to as “Reply at ”.

evidence because the photographs are static representations and the video provides visual

conception of the operations at the facility.

Procedural Background

On October 25, 1994 a hearing was held at the offices of Columbia City Hall,

Columbia, Illinois. At the hearing the parties entered opening statements and discussed a

settlement agreement. At the close of the settlement agreement discussion, the hearing officer

continued the cause and directed both parties to file the settlement papers by November 30,

1994, pursuant to the applicable Board procedural requirements at 35 Ill. Adm. Code 103.180

and Section 31(b) of the Act.

The settlement papers were not executed and on May 19, 1995 complainant filed a

motion to enforce settlement and a memorandum in support of the motion to enforce

settlement. On May 31, 1995 respondent filed a response to the motion to enforce. The

Board, on August 24, 1995, denied complainant’s motion to enforce and directed the parties to

proceed to hearing. As stated above additional hearings were held October 31, 1995,

December 11, 12 and 21, 1995.

General Background

Ms. Hoffman lives in a single family residence in a residential area of the City of

Columbia. (Tr. at 27-28, Brief at 1.)

Ms. Hoffman has been at this residence since 1959.

(Tr. at 28, Brief at 1.) In 1959 the area where the City currently operates its maintenance

facility, which is the source of the noise in question, was an open area with some cedar trees,

berry bushes and other vegetation. (Tr. at 28, Brief at 1.) The City built a brick pump house

sometime before 1967 on the property behind Ms. Hoffman’s property. (Tr. at 29, Brief at 1,

Comp. Ex.#4.)

In 1967, the City built a large brick shed on the same piece of property.

(Tr. at 29, Brief at 1, Resp. Ex.#34 (brick portion only).)

. During the time period starting in

1967 until the present the City added to the facility including a salt bin and asphalt bin (Comp.

Ex.#10), aggregate piles (Comp. Ex.#11 and 20), earth pile (Comp. Ex.#12 and 15),

expansion to the brick shed (Comp. Ex.#21, Resp. Ex.#34) and various other improvements

(Comp. Ex.#21). (Tr. at 50-65.) The southwest corner of Ms. Hoffman’s house is

approximately 191 feet (ft.) from the large shed made up of the brick shed built in 1967 and

the expansion. (Tr. at 209, Comp. Ex.#39.) The salt and asphalt bins are approximately 247

ft. from the southwest corner of Ms. Hoffman’s house. (Tr. at 211, Comp. Ex.#39.) Ms.

Hoffman’s house is located roughly 26 ft. in from the property line. (Tr. at 212, Comp. Ex.#

39.) The maintenance facility is situated on a triangular piece of land which abuts

complainant’s residence and others on one side, a cemetery on another side and a park along

the final side. (Resp. at 4, Comp. Ex.#2.)

The transcript of the hearings will be referenced to as “Tr. at .”, and the complainant’s post-hearing brief will be

referred to as “Brief at .”.

The complainant’s exhibits will be referenced to as “Comp. Ex# .”.

The respondent’s exhibits will be referred to as “Resp. Ex#.”.

The City maintenance facility utilizes several different trucks to perform various road

and other maintenance tasks around the City. Also the City owns and operates several

different machines such as backhoes, dozers and an endloader which assist in carrying out the

maintenance functions for the City. (See Resp. Ex.#12, 26, 28, 29 and 34.) Finally, there are

also several other pieces of equipment stored at the facility such as a street sweeper, a

“Bomag” roller and several trucks used for spreading oil on streets. (See Comp. Ex.#5, 18

and 22, Resp. Ex.#2 and 28.) The normal business hours of the facility are 8:00 a.m. to 4:30

p.m. (Tr. at 725.) However, due to emergencies, such as snow storms and water main

breaks, the facility is used anytime throughout a 24-hour period depending on when the

emergency occurs. (Tr. at 738.)

Arguments

Complainant

Although complainant did not specifically argue the factors of Section 33(c) of the Act

in its brief, the Board, for ease of the readers, will summarize complainant’s argument which

tend to be related to one of the factors.

The character and degree of injury to, or interference with the protection of the health,

general welfare and physical property of the people.

Ms. Hoffman testified that the dump trucks make a lot of noise due to metal clanging,

truck beds dragging on the asphalt, and engines roaring. (Brief at 2, Tr. at 65-66, Comp.

Ex.#3, 4, 6, 12, 16 and 22.) Furthermore, Ms. Hoffman testified that this equipment,

referred to as the “Cats” (equipment manufactured by Caterpillar), generate noise from the

loading and unloading of aggregate, the roaring of the engines, and the backup bell or warning

device. (Brief at 2, Tr. at 51, 72-74 and 87, and Comp. Ex.#37.) Additionally, Ms.

Hoffman testified that the street sweeper “sputters and stutters” before it warms up. (Brief at

2, Tr. at 66, Comp. Ex.#37 at 9 (10/3/94).) Finally, Ms. Hoffman testified that an air horn

occasionally blasts while the oil is being boiled and that the engine creates a noise while it is

heating and circulating the oil prior to application all of which creates noise. (Brief at 3, Tr.

at 61, 66, 71, Comp. Ex.#37 at 7 (8/15/94).)

Next complainant sets forth how the above described noise interferes with her

enjoyment of life. (Brief at 3-7.) Ms. Hoffman testified that before 1988 the neighborhood

had a quiet and peaceful reputation. (Brief at 3, Tr. at 116.) Ms. Hoffman testified that the

operation of these trucks occur occasionally after midnight or early in the morning. (Brief at

3, Tr. at 50, 69, Comp. Ex.#37.) From 1993 until 1995, Ms. Hoffman kept a journal

describing the noises and the time of occurrence, which was submitted as complainant’s exhibit

number 37. (Comp. Ex.#37.) On several occasions the journal lists the disturbances as

happening early in the morning or late at night. (Reply at 2-3, generally Comp. Ex.#37.) The

majority of the entries concern noise generated by engine roaring, backup bells or warning

devices, and the loading and unloading of aggregate. (generally Comp. Ex.#37.) Ms.

Hoffman testified that the noise prohibited her from enjoying her backyard and disturbs her

sleep. (Brief at 3-4, Tr. 116-117.) Complainant asserts result of the noise from the

maintenance facility has been stress, fatigue from the lack of sleep, irritability and depression

from having to listen to the noise. (Brief at 4, Tr. at 119.)

To substantiate the testimony of Ms. Hoffman complainant called Mrs. Schuler, Ms.

Hoffman’s daughter. (Brief at 4-5, Tr. at 246.) Mrs. Schuler and her family lived at Ms.

Hoffman’s house periodically from 1973 to 1994. (Tr. at 247.) During those periods of time

Mrs. Schuler and her family lived in the basement of the house. (Tr. at 247.) Mrs. Schuler

testified that you could not converse outside when there was activity at the facility due to the

roar of the engines and that the backup warning devices were not the only annoyance. (Brief

at 4, Tr. at 248-249.) Mrs. Schuler stated that the noise from the site would wake her husband

and occurred during odd hours of the day and not just during normal working hours. (Tr. at

250.) Mrs. Schuler stated that the working hours were not restricted to 8:00 a.m. to 5:00

p.m. during the summer; instead the City employees could start at 6:00 a.m. or 7:00 a.m. and

if the weather turned bad in winter, “...it can be at any hour of the day”. (Brief at 5, Tr. at

250.) Mrs. Schuler testified that the noise is “nerve-racking”, that “[w]hen you’re awakened

in the middle of the night, it’s very hard to go back to sleep”, and that “[t]he roar of the

engine puts a lot of stress on you, undue stress” which “[i]t prevents you from performing one

hundred percent” at work the next day. (Brief at 5, Tr. 252-254.)

Next complainant presented the testimony of Mr. Greg Zak of the Agency who

appeared on behalf of complainant to further support the contention of a nuisance violation.

(Brief at 5-9.) Mr. Zak, based on his observations at the site, the prior testimony of

complainant’s witnesses, and the measurements taken by the Agency and E.D.I

, testified that

there were considerable exceedences of the Board’s numerical limitations and that there is a

well-founded nuisance complaint regarding the operations at the facility. (Brief at 5, Tr. at

287-288.) Mr. Zak specifically mentioned the loading and unloading of aggregate and the

engine noise of front end loader and the trucks as operations which may result in a nuisance.

(Tr. at 287-288.) Next Mr. Zak testified that the noise measurements and the results taken by

Ms. Hoffman and the Agency which were entered into the record as complainant’s exhibit

number two (2) are empirical facts which “substantiate and back-up Ms. Hoffman’s claims of

nuisance noise”. (Brief at 6, Tr. at 288, Tr. at 290-330.) In response to whether the

measurements were taken in compliance with the regulations, Mr. Zak stated “[i]n general it

was”, except that “[t]he one area where it would not necessarily be in strict compliance would

be a situation of having the microphone in the window”. (Brief at 9, Tr. at 294-295.)

However, Mr. Zak testified further that:

Typically the way it’s done, according to measurement standards, would be to

have the microphone located outdoors, at least twenty-five feet from the

residential structure. However, there is some latitude in the way this is done.

If corrections are made for a different configuration, in other words, in this case

here, placing the microphone in the window, that tape (sic) of data gathering

should be acceptable. And we were able to verify the validity of our numbers

Engineering Dynamics International (E.D.I.) is a consultant engineering firm hired by the City to take sound

measurements of the activities at the site.

through the help of E.D.I. supplying their data, and by comparing their

independently gathered data to our independently gathered data, and having the

numbers end up being virtually the same. (Tr. at 294-295, 365-370.)

Complainant’s brief states that “[t]his result was based upon Mr. Zak’s opinion that the

maintenance facility is a Class “B” emitter and Ms. Hoffman’s home is a Class “A” receiver

under the Standard Land Use Coding Manual (SLUCM) code (Section 601.102 of the

regulations)” and cites to Mr. Zak’s testimony. (Brief at 7, Tr. at 301-304.) Complainant

argues that the maintenance facility is Class “B” land and not Class “C” land “because it does

not use very heavy industrial equipment, such as that found in coal mining or quarrying

operations”. (Brief at 6, Tr. at 303-305). Finally in support of the claim by complainant that

there are noise exceedences at night complainant states that “[a]lthough measurements were not

taken at night, Mr. Zak testified that regardless of whether the measurements were taken with

the sun up or down, as long as the same equipment is being used, we are going to see the same

measurement”. (Brief at 6, Tr. at 310-311.)

In explaining the results of the measurements and complainant’s exhibit 41, Mr. Zak

stated that the amount of sound reduction needed in order to bring the facility into compliance

with the numerical limits, would be two decibels at 500 hertz, 13 decibels at 1,000 hertz, 18

decibels at 2,000 hertz, and six decibels at 4,000 hertz. (Tr. at 301.) Mr. Zak testified that

exceedences at the 63 hertz octave band “would typically represent exhaust noise from internal

combustion engines”; the levels at 500 hertz “could be a number of sources there, perhaps a

combination of truck noise, end loader noise”; the levels at 1,000 hertz and 2,000 hertz

“would in all likelihood be the backup beeper from any equipment so equipped in the yard”;

the level at 4,000 hertz “would be, again, just noise emissions from the equipment in general,

and would be rather hard to characterize it coming from a specific source at this point, as was

the ten decibels back at 500 hertz.” (Brief at 7, Tr. at 324-326, Comp. Ex # 42.) Mr. Zak

further states “[i]t's a little difficult to characterize exactly where those [the exceedences of

4,000 hertz] came from” and that “Mr. Tolan will be able to give you more information on

the probable cause of those levels.” (Tr. at 325.)

Concerning the backup warning devices and the possible exemption under Section

910.107(b), which states “Sections 901.102 through 901.106 inclusive shall not apply to sound

emitted from emergency warning devices and unregulated safety valves”, complainant states

that Mr. Zak assisted in drafting this provision and he testified that this exception was meant to

apply to true emergency warning devices, such as fire sirens located at the station, not those on

the vehicles in this case. (Brief at 7, Tr. 332-337.) Complainant’s states “that Mr. Zak and

the Illinois E.P.A. have taken the position that the exemption does not apply to back-up alarms

as they are not true emergency warning devices”. (Brief at 7, Tr. 334). Complainant argues

that the “[b]ack-up alarms are a safety device as opposed to an emergency warning device”

and “[t]hus, the exemption is not applicable to this case because backup alarms do not fall

within the scope of the provision”. (Brief at 7.)

The social and economic values of the pollution source.

Complainant asserts that although respondent “rambles on about the social and

economic necessity of the maintenance facility”, it “overlooks the simple fact that the services

performed by the Maintenance Department will continue to be provided regardless of where

the maintenance facility is located”. (Reply at 7.) Complainant argues that the social and

economic value will neither change nor be affected because the facility will remain near or in

the City. (Reply at 7.)

The suitability or unsuitability of the pollution source in the area in which it is located,

including the question of proximity of location in the area involved.

Complainant asserts that the maintenance facility is neither suited nor compatible with

the surrounding area. (Brief at 10.) Complainant’s brief maintains that the maintenance

facility is definitely not compatible with the surrounding area because it is situated in a

residential area with houses around it”. (Brief at 10, Tr. at 44.) Additionally, complainant

cites to the testimony of Mr. John Coats, a former mayor of the City, who testified that, in his

opinion, the present location of the maintenance facility was inappropriate for the maintenance

facility and that there is a fair amount of rural undeveloped property near the City limits which

would be appropriate for the maintenance facility. (Brief at 10, Tr. at 216-218.)

Furthermore, complainant argues the fact that the maintenance facility was zoned residential

until 1989 and the City rezoned from residential to agricultural, and broadened the scope of

the definition of agricultural to include municipal buildings as a permitted use, demonstrates

that the site is not suitable. (Brief 10-11.) Complainant states that the City’s Planning

Commission and Zoning Board of Appeals had denied the City’s request to rezone the

maintenance facility from residential to agricultural, nevertheless the City changed the zoning.

(Brief at 11.) Complainant also maintains that the City has twice considered moving the

maintenance facility; once for construction of a road, and in 1994 because it had grown so fast

during the three years that the City Superintendent did not believe expanding the amount of

equipment at the facility was wise due to the residential area. (Brief at 11.) Finally,

complainant asserts that “[t]he City has conceded that the present site of the maintenance

facility is insufficient and it has recently been looking at alternative sites to relocate the

maintenance facility”. (Brief at 11.).

In addition to location arguments, complainant also argues that the maintenance facility

has had a negative effect on the assessed value of her home as further proof of the unsuitability

of the location for the maintenance facility. (Brief at 9.) Complainant asserts that “[t]he

Assessor decreased the assessed value of Ms. Hoffman’s home by five percentage points due to

‘neighborhood factors’”, which can only be attributable to the maintenance facility. (Brief at

9.) Additionally, complainant states that “her property value has decreased as a consequence

of the noise and she would have a hard time selling her home due to the noise generated at the

maintenance facility”. (Brief at 9.)

The technical practicability and economic reasonableness of reducing or eliminating the

emissions, discharges or deposits resulting from such pollution source.

Complainant states that Mr. Zak testified that there are five (5) actions necessary to

reduce the problem that Ms. Hoffman is experiencing. (Brief at 7-9.) Mr. Zak testified that

the equipment powered by internal combustion engines needs to have installed “equal to or

better than a Nelson Model 400 muffler, Nelson being the manufacturer of mufflers” such as

the backhoe end loader and the trucks larger than the pickup truck used at the facility. (Brief

at 7-8, Tr. at 343, 357, Comp. Ex #3, 4, 6, 10, 25, and 34.) Next Mr. Zak stated that the

aggregate pile should be relocated on site as far from complainant's residence as possible,

south of the City building using it as a sound barrier. (Brief at 8, Tr. at 343-344, Comp. Ex

#2.) Third, complainant asserted that the City building should be lined with drywall to “add

mass to the walls of the building, preventing the sound from traveling out from the building

through the existing metal shell” and unfaced fiberglass insulation to “absorb sound,

preventing reverberation of the building, and adding an overall acoustic deadening of the

interior of the building”. (Brief at 8, Tr. at 345-346.) Fourth, Mr. Zak testified that a fence,

to act as a sound barrier, should be built along the property line of Ms. Hoffman

approximately 150 to 200 feet in length, roughly 20 feet high and a sufficient thickness to

withstand the wind. (Brief at 8, Tr. at 346.) Finally, Mr. Zak stated that the back-up warning

devices should be disconnected on the same equipment that have been designated to receive the

Nelson 400 muffler or other equipment that is operated frequently on site. (Brief at 9, Tr. at

363.) Mr. Zak testified that the barrier is necessary because, “[l]ooking at the octave band

data in previous exhibits, the mufflers, and the building lining, and even moving the aggregate

pile, it's still not going to,. . . , bring the levels down to meet the numerical limits” (Tr. at

347.) Additionally, Mr. Zak stated that “in order to solve the problem, one needs to use a

combination of the barrier along with the other suggested ways of solving the problem.” (Tr.

at 353.) Mr. Zak testified that the cost of adding the insulation and drywall to the City

building would probably be in the neighborhood of a few $12,000, the cost of constructing the

fence would be approximately between $12,000 to $15,000, and the average cost is around

$250 for the Nelson 400 muffler. (Tr. at 362.)

In addition Mr. Zak also testified to the possibility of reducing the noise from the back-

up warning devices. Mr. Zak stated “...that the OSHA regulations do not require backup

alarm or beeper, if an observer is used in lieu of the backup beeper”. (Tr. at 363.)

Additionally, complainant submitted exhibit #46 which purports to be a copy of the applicable

Occupational Safety and Health Administrative (OSHA) regulations, 29 C.F.R. 1926.601(4),

which states:

(4)

No employer shall use any motor vehicle equipment having an

obstructed view to the rear unless:

(i)

The vehicle has a reverse signal alarm audible above the

surrounding noise level or:

(ii)

The vehicle is backed up only when an observer signals that it is safe to

do so.

Complainant concludes that disconnecting or adding a switch to turn off the backup warning

devices is feasible. (Brief at 9.)

Any subsequent compliance.

Complainant states that “[t]he City has not taken any substantive remedial measures to

reduce the noise emissions from its maintenance facility”. (Brief at 10.) Furthermore,

complainant argues that “the reduction of the noise from one back-up alarm is not significant

in light of the fact that the City engineer testified that the two backhoes, the motor grader, and

the dump trucks are equipped with back-up alarms”. (Brief at 10.) Finally, complainant

argues that the City has previously promised to build sound barriers, install hospital grade

mufflers on its heavy equipment, and disconnect the back-up alarms to resolve this case and

has not done so. (Brief at 10.)

Respondent

The City states “[w]hile respondent acknowledges there are sounds from the

maintenance facility which may affect some aspect of Complainant’s life, the record shows

that the sounds do not cause unreasonable interference with the enjoyment of life and thus do

not violate the Act or Board regulations”. (Resp at 9.) Citing to Wells Manufacturing Co. v.

PCB, 73 Ill.2d 226, 383 N.E.2d 148, 150 (1978), the City argues that “[t]he ‘reasonableness’

of the noise must be determined in light of the factors set forth in Section 33(c) of the Act.”

(Resp. at 9.) The City, in its post-hearing brief, addresses each of the Section 33(c) factors

which follow.

The character and degree of injury to, or interference with the protection of the health,

general welfare and physical property of the people.

Citing to Kvatsak, PCB 89-182 (Aug. 30, 1990), the City states “[i]n considering the

character of the interference caused by sound from the maintenance facility the standard to

which the Board refers ‘is that the noise substantially and frequently interferes with the use and

enjoyment of life and property, beyond minor or trifling annoyance or discomfort’, and that

the record contains conflicting testimony and evidence concerning the extent of the noise from

the maintenance facility”. (Resp. at 10.) The City asserts that “[i]n this regard Complainant

herself presents conflicting testimony, and the record contains conflicting evidence as some

neighbors experience no discomfort or disturbance from the maintenance facility”. (Resp. at

10.)

The City states that the major interference alleged by complainant is the interruption of

and loss of sleep. (Resp. at 10.) The City argues that such interference according to the

record “occurs very rarely”. (Resp. at 11.) Respondent cites to seven places in the transcript

where there is testimony by complainant concerning noise interfering with sleep, states in its

brief that there is not a single entry in complainant’s log (complainant’s exhibit #37) where

sleep had been disturbed, and that its witnesses, the acting Director of Public Works and City

Engineer, both testified that non-working hour emergencies happened only five to seven times

per year. (Resp. at 10-11.) The City argues that this record does not support complainant’s

claim of severe loss of sleep and does not amount to unreasonable interference. (Resp. at 11.)

Next the City states that the alleged stress caused by the interference which allegedly

caused Ms. Hoffman to have surgery “is spurious and inflammatory and reflects poorly on her

credibility in pressing this matter”. (Resp. at 12.) Respondent asserts that complainant’s

implication in her formal complaint that the alleged noise pollution caused five surgeries omits

out the facts “that four of the five surgeries (and probably one more) were performed on her

eyes due to detached retinas, fluid build-up, dimness, and infection, and she has had eye

problems all her life”. (Resp. at 12.) In response to the claimed interference’s of working in

her garden, reading in her swing, inviting friends over and generally the use of her property,

respondent argues that the record does not support a finding that unreasonable interference is

occurring. (Resp. at 12.) Respondent states that “[t]here is no evidence that Complainant

entertained friends and was interrupted or disturbed in doing so, she has only testified that it

might happen”. (Resp. at 12.) Respondent asserts that there was only one reference to the

interruption of conversation and that was between Ms. Hoffman and Mrs. Gullberg (Ms.

Hoffman’s neighbor) when they were trying to converse with each other from their own

respective yards and were across the street from one another. (Resp. at 13.)

In support of the City’s contention that the record does not provide support for a

finding of unreasonable interference, it maintains that its witnesses testified (Tr. at 702-706,

786-790 and 794-801), neighbors to Ms. Hoffman, generally that they heard the noise from

the maintenance facility but it did not bother them or interfere with their enjoyment of life,

which contradicts the potentially biased testimony of complainant and complainant’s witnesses’

testimony. (Resp. at 13-15.) Additionally, respondent argues that although the noise

measurements taken by the Agency and itself show exceedences in two areas, those

exceedences are attributable to the back-up warning devices which are exempted by 35 Ill.

Adm. Code 901.107(b). (Resp. at 15-17.) Finally, respondent asserts that complainant may

have become “...obsessed with recording sound from the facility, to the extent that she may no

longer be able to evaluate which sounds truly interfere, but instead finds all sound intrusive”

because some of the entries into complainant’s logs were statements wondering why there are

no sounds to record. (Resp. at 15-17, Comp Ex#37; Resp. Ex.#6 and 7)

To conclude the City states that “Complainant testified that the major source of

interference is sleep interruption and loss, that claim is not supported by the evidence in the

record”, and that “[h]er other complaints of interference are contradicted by not only her own

testimony but also that of local residents who live in close proximity to the maintenance

facility yet experience no disturbance or interference with the enjoyment of their lives”.

(Resp. at 17-18.) Therefore any interference alleged does not support a finding that the

interference is unreasonable. (Resp. at 18.)

The social and economic values of the pollution source.

The City states that the facility provides substantial social and economic benefits to the

community because it is an integral part of performing necessary governmental functions such

as road and sewer repair, snow removal, salt spreading, and street sweeping. (Resp. at 18.)

Furthermore, the City states that “[t]he work carried out at the maintenance facility is done by

public mandate and supervised by the local governing body.” (Resp. at 18.) Finally, the City

states that the facility employs 17 people including the City Engineer and secretary. (Resp. at

18.)

The suitability or unsuitability of the pollution source in the area in which it is located,

including the question of proximity of location in the area involved.

The City asserts that “[t]he record indicates the maintenance facility is suitably located

to serve its purpose in providing repair services to roads, sewers, lift stations and the collection

system operating with the City of Columbia.” (Resp. at 18-19.) In support of this contention

the City cites to the testimony of Mr. Kenneth Vaughn, City Engineer, who stated “[i]t is a

centrally located facility which enables us to provide quick response time anywhere that

response would be needed in the city for any type of a situation”(Tr. at 718), and that such

location is “extremely desirable”(Tr. at 719). (Resp. at 19.) Additionally, the City argues

that complainant’s statements that the facility is not suitable or compatible because of the

surrounding residential area is not shared by other city residents by citing the testimony of

Mrs. Zoeller who stated “I don’t see how I can complain”, “I feel very lucky, I’m the very

first street that ever gets plowed when it snows, so I’m always able to go to work

everyday”(Tr. at 804). (Resp. at 19.) Finally, the City asserts that “[a]lthough the

Complainant has priority of location, in that she bought her property in 1959 (Tr. at 8) and

Respondent not until 1967 (R. Ex. 18)

, such will not override other considerations in this

case”. (Resp. at 19.)

The technical practicability and economic reasonableness of reducing or eliminating the

emissions, discharges or deposits resulting from such pollution source.

The City cites to Dettlaff v. Baodo, PCB 92-26 (July 1, 1993), which states “[t]he

focus of inquiry into the technical practicability and economic reasonableness of control

measures is on what can be done about the allegedly offensive noise”, and argues that the

relief alternatives presented by complainant are not economically reasonable, or are not

supported by the record. (Resp. at 20.)

First respondent argues that complainant’s request for cease and desist “is clearly

inappropriate considering the cost of obtaining property that is equally suitably located and

building a new facility, as well as the interruption in services which would be caused by such a

move”. (Resp. at 20.) In support of the City’s argument it cites to the testimony of Mr.

Coats witness for complainant and former mayor who testified that the cost of locating a

similar facility would be $150,000. (Resp. at 20, Tr. at 224-226.) Furthermore the City cites

to its witness, the City Engineer, who estimated that services would be interrupted for at least

two to three weeks while the facility was being moved. (Resp. at 20, Tr. at 721.)

Next respondent argues that the “allegations do not merit the extensive measures

outlined by Mr. Zak, especially in light of testimony of other local residents, the City

The respondents “R. Ex. 18” means Resp. Ex# 18.

Engineer, and Dr. Weissenburger’s testimony that a noise barrier and drywall and insulation

added to the maintenance building are unnecessary.” (Resp. at 22.) Respondent argues that

Mr. Zak’s proposed recommendations for the abatement of noise at the facility are based on

his “opinion without inspecting the maintenance building or having personally heard the sound

and observed the activity at the site”. (Resp. at 21, Tr. at 385, 398.) Respondent argues that

the estimated costs of Mr. Zak for the acoustical fence of between $12,000-$15,000, which is

based solely on his experience in a prior unrelated case before the Board, are underestimated.

(Resp. at 21.) Respondent argues this based on the cost estimates of between $52,000-$57,000

(Tr. at 743-744), not including engineering design or soil borings and analysis, as testified to

by its witness the City Engineer based on case specific information. (Resp. at 21.)

Additionally the City argues that “there is no evidence in the record that any sound emanates

from the maintenance building, thus the recommendation that it be drywalled and insulated is

not supported and is superfluous”. (Resp. at 21.) Finally, respondent, argues that the record

reflects that the only source of noise from the backup warning devices that is allegedly creating

a unreasonable interference is the tractor or the Caterpillar equipment at the facility and not

from all trucks equipped with backup warning devices. (Resp. at 17, Tr. at 71.)

Any subsequent compliance.

The City simply states that it has lowered the volume control from high to low

for the back-up bell on the endloader and the City Engineer testified that the sound was

“noticeably lower” (Tr. at 735). (Resp. at 23.)

To conclude, the City states that “after full consideration of all the facts and

circumstances in the record, and in light of the Section 33(c) factors, the Board must find the

noise from the maintenance facility does not constitute an unreasonable interference with

Complainant’s enjoyment of life and lawful activity in violation of Section 24 of the Act and

Section 900.102 of the Board’s regulations.” (Resp. at 24.) Alternatively, the City states that

should the Board determine there is unreasonable interference, the remedies ordered should be

limited to moving the aggregate piles, installing hospital grade mufflers and reducing the

volume of the tractor back-up alarms where possible. (Resp. at 24.)

Discussion

Before determining the issue of nuisance, the Board will consider two relevant issues

raised by the parties: classification of the maintenance facility pursuant to the SLUCM code

and the exemption of warning devices set forth in 35 Ill. Adm. Code 901.107(b). Although

neither issue will be dispositive of the matter of nuisance, both issues pertain to the weight of

evidence presented to the Board.

Classification

Site classification pursuant to SLUCM code, set forth generally in 35 Ill. Adm. Code

901, determines the numerical sound limitations that can be legally emitted from one piece of

property to another pursuant to 35 Ill. Adm. Code 901.102 and 901.103. As stated above,

complainant argues that the City’s maintenance facility should be classified as a Class “B” site

and the City argues that it should be classified as a Class “C” site. While the matter before

the Board is not a complaint based on an alleged numerical violation, evidence of numerical

exceedences is relevant to the Board’s determination but is not dispositive of the matter.

Additionally, as stated above, whether the City’s maintenance facility is classified as Class

“C” or Class “B” does not change the fact that both parties agreed that numerical exceedences

were recorded. However, the extent of the exceedences change because the numerical

limitations for Class “B” and Class “C” are different. Class “C” numerical limitations are

less stringent than those of Class “B” for sound emitted to the Class “A” site, residential

property.

In In the Matter of: Noise Pollution Control Regulations, (July 31, 1973), R 72-3, the

Board stated “[t]he classification of land is dependent on the actual use being made of the land,

rather than on anticipated or planned use such as could occur if the classifications were based

on zoning”. (Op. at p. 23.) Further in the same opinion the Board states “[a]ctual land use is

an appropriate basis in that the regulation is designed to protect people where they actually live

and work, rather than protecting vacant property in anticipation of people living and working

there”. (Op. at 24.)

We find that the actual use of the property dictates the classification, rather than the

zoning or who or what entity is conducting the activity. In this case we have a maintenance

facility which provides for the general maintenance of the roads and other public works in the

City. There are no SLUCM codes for road maintenance and related activities. Site

Classification “B” generally includes, motion picture production, communication, wholesale

trade, retail trade, personal and financial services, business services, repair services,

professional services, contract construction services (building construction, plumbing, heating,

painting, etc.), governmental services (executive, legislative, and judicial services, police,

fire, civil defense and other protective services), recreational, and public assembly activities.

Site Classification “C” generally includes, manufacturing, petroleum refining, motor vehicle

transportation, marine craft transportation, automobile parking, utilities, agricultural and

related activities, forestry, fishing, mining, and other resource production and extraction

activities.

We find, considering the types of activities carried out at the maintenance facility, that

the site tends more to be a manufacturer, motor vehicle transportation, agricultural, mining

and resource production and extraction classification than a services or retail type facility.

Therefore we would find the City’s maintenance facility to fall under the “C” classification.

This is not to say that all city maintenance facilities would fall under the “C” classification but

the facts of this case dictate such finding. As such the numerical readings entered into the

record by the parties should be compared in light of emissions limitations from a Class “C”

site to a Class “A” site as evidence tending to support or not support an alleged nuisance

violation.

Exemption

When the Board adopted the numerical limitations found in 35 Ill. Adm. Code 901.102

through 901.106 it also created certain exceptions as set forth at 35 Ill. Adm. Code 901.107.

In this case the parties are arguing whether 35 Ill. Adm. Code 901.107(b) applies to the

backup warning devices connected to the large trucks at the maintenance facility. Section

901.107(b) states “Section 901.102 through 901.106 inclusive shall not apply to sound emitted

from emergency warning devices and unregulated safety release valves”.

This action has been brought pursuant to 35 Ill. Adm. Code 900.102 (general nuisance

prohibition) and not pursuant to Section 901.102 through 901.106 (numerical limitation

sections). Therefore the exemption does not apply in this case. However, as stated above,

while this action is not brought pursuant to an alleged numerical violation, evidence of a

numerical exceedences is relevant. Thus a discussion as to whether the backup warning devices

were intended to be included in the exception is beneficial.

In In the Matter of: Noise Pollution Control Regulations, (July 31, 1973), R 72-3, the

Board stated:

Rule 208(b) (901.107(b)) exempts warning and safety devices from the

numerical limitations. This was done because the social benefits far out-weigh

any annoyance and because the noise emissions occur infrequently and usually

for short durations. It should be noted that the exception would also cover the

periodic maintenance and testing of these devices. Not covered by the

exception would be devices which may in some ways be similar but which are

used routinely in the course of operation such as circuit breakers used for

switching electrical power.

(Op. at 30.)

The backup warning devices associated with the larger trucks at the maintenance

facility fall under the “similar but which are used routinely” exclusion from the exception that

was discussed by the Board. The Board does recognize the social benefits associated with the

backup warning device but we believe such device was not the type of warning devices the

Board intended to exempt from the numerical regulations. Therefore evidence concerning

numerical exceedences attributable to the backup warning devices is relevant insofar as the

alleged nuisance violation.

Nuisance violation

The threshold issue in any noise nuisance enforcement proceeding is whether the

sounds have caused some type of interference with complainant’s enjoyment of life or lawful

business activity. Interference is more than an ability to distinguish sounds attributable to a

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

activities. (See e.g., Village of Matteson v. World Music Theatre Jam Productions, LTD. and

Gierczyk Development, Inc., (April 25, 1991), PCB 90-146, Kvatsak v. St. Michael's

Lutheran Church, (August 30, 1990) PCB 89-182; Zivoli v. Dive Shop, (March 14, 1991)

PCB 89-205.) Testimony to the effect that the sound constitutes an interference solely because

it could be heard is insufficient to support a finding beyond a "trifling interference, petty

annoyance or minor discomfort." (Wells Manufacturing Co. v. PCB, 73 Ill.2d 226, 383

N.E.2d 148, 150 (1978).) Based on the testimony, numerical noise readings, and the record,

the Board finds that sounds emanating from the City’s maintenance facility caused, and

continues to cause, an interference with Ms. Hoffman’s enjoyment of life. The Board notes,

however, that not all of the testimony supports a finding of interference on every day the

maintenance facility is in operation or from every alleged source of noise as discussed below.

The Board finds that the testimony presented at the hearing demonstrates the necessary

interference. Complainant presented the testimony of Mr. Zak who conducted numerical noise

readings on July 21, 1995 which demonstrate that the City’s maintenance operation was

exceeding the Board’s numerical noise limitations at least when those measurement were taken.

Additionally, the City’s own measurements demonstrate the same, and respondent admits that

the sound affects complainant’s life. In Ferndale Heights Utilities Co. v. Illinois Pollution

Control Board, 44 Ill. App.3d 962, 3 Ill.Dec. 539, 358 N.E.2d 1224, (1st Dist. 1976), the

court upheld the Board’s finding of interference based on testimony such as “a great source of

irritation” and “awakened once or twice a year”. (358 N.E. 2d 1229.) The record in this

matter contains similar testimony and evidence as in Ferndale.

Sections 900.l0l and 900.l02, which apply here, were given judicial interpretation in

Ferndale. The First District Court held the regulatory language to be constitutional since

sufficient standards could be comprehended from reading Section 24, the Board's regulations,

and the guidelines for enforcement cases found in Section 33(c) of the Act. (358 N.E.2d

1228.) The Court affirmed the Board's finding of unreasonable interference with the

enjoyment of life, in light of adequate testimony describing the noise; explaining the type and

severity of the interference caused by the noise; and indicating the frequency and duration of

the interference. (Id. at 1229.)

Once the Board determines that interference is caused by a respondent’s activities the

Board must determine if that interference is unreasonable. The "reasonableness" of the noise

pollution must be determined in reference to statutory criteria in Section 33(c) of the Act.

Wells Manufacturing Company v. Pollution Control Board, 73 Ill.2d 226, 383 N.E.2d l48

(l978); Mystic Tape, Div. of Borden, Inc. v. Pollution Control Board, 60 Ill.2d 330, 328

N.E.2d 5 (l975); Incinerator, Inc. v. Pollution Control Board, 59 Ill.2d 290, 3l9 N.E.2d 794

(l974); City of Monmouth v. Pollution Control Board, 57 Ill.2d 482, 3l3 N.E.2d l6l (l974).

However, complainants are not required to introduce evidence on these criteria. (Processing

& Books v. Pollution Control Board, 64 Ill.2d 68, 35l N.E.2d 865 (l976).) We now consider

each of these factors in determining whether the interference was unreasonable.

Character and Degree of the Injury or Interference

Section 33(c)(1) directs the Board to consider the character and degree of any

interference caused by the noise emitted from the City’s maintenance facility. The standard to

which the Board refers to is whether the noise substantially and frequently interferes with a

lawful business activity, beyond minor trifling annoyance or discomfort. (See, e.g., Brainerd

v. Hagen, (April 27, 1989) PCB 88-171, 98 PCB 247.) As stated above, complainant

presented evidence through testimony at the hearing and Comp. Ex.#37 as to the character and

degree of injury or interference. Complainant states that the main interference or injury is that

noise prohibits her from sleeping through the night and prohibits her from using her yard.

Based on the testimony and the record, we find Ms. Hoffman’s particular location places her

in relation to the facility as currently configured to be more receptive to the noise generated by

the maintenance facility than that of respondent’s witnesses who live farther away from the

facility, behind the City’s building and at a higher elevation. Furthermore, as stated in

Discovery South Group v. Illinois Pollution Control Board, “to show ‘unreasonable

interference’ [complainant] Matteson was not required to show that all of its citizens were

affected or that those affected were affected to the same degree.” (657 N.E.2d 57.)

Having found that the maintenance facility is creating a substantial and frequent

interference, the Board also finds that not all activities at the facility are attributing to the

interference. In reviewing the record and especially the testimony of Ms. Hoffman, the

interference has been demonstrated to be the result of (1) engine noise from the large trucks as

pictured in Comp. Ex#s 3, 4, 6, 10, 25, and 34, (2) the backup beepers or warning devices

associated with only the Caterpillar equipment as testified to by Ms. Hoffman, and (3) the

loading and unloading of the aggregate. The record does not support a finding that the street

sweeper and other equipment have created a nuisance. Furthermore there has been no

testimony or other evidence that the maintenance facility building is a source of noise which

has unreasonably interfered with Ms. Hoffman’s enjoyment of life. Based on the record in

this case, we find that the noise generated by roar of the engines, the backup warning devices

on the Caterpillar equipment, and the loading and unloading of the aggregate substantially and

frequently interfere with Ms. Hoffman’s use of her property.

Social or Economic Value of the Source

When considering this factor the Board must weigh the value of the source versus the

social or economic value it provides. The City argues that the maintenance facility provides

substantial social and economic benefit to the community. Complainant does not deny the

social or economic value but argues that while there may be social or economic value the

location of the maintenance facility is not necessary to carry out its functions. We agree with

complainant that steps can be taken to abate the noise levels without impeding on the social or

economic value of the facility.

Suitability or Unsuitability of the Source, Including Priority of Location

Both parties agree that Ms. Hoffman has priority of location. Additionally, both

parties admit that the facility currently has proper zoning. We find, although the location of

the maintenance facility may be beneficial as far as carrying out its purpose, the record reflects

that the facility’s location does not correspond to the neighboring land uses. Complainant’s

exhibit #2 clearly shows that the facility abuts residential property on the side which is closest

to the facility. Considering the priority of location and the proximity of the residential

property to the City’s maintenance facility, the noise source is unsuitable.

Technical Practicability and Economic Reasonableness of Control

The record contains a substantial amount of evidence concerning the technical

practicability and the economic reasonableness of the suggested controls methods.

Complainant has requested that the facility be relocated or that several control devices be

instituted. Mr. Zak of the Agency, for complainant, and Dr. Weissenburger, for respondent,

presented conflicting evidence concerning the technical practicality of the control devices for

the maintenance facility. Additionally, the parties presented conflicting evidence as to the

costs for implementing the recommended control measures. As discussed below we find that

some control devices or actions to be technically practical and economically reasonable, while

others are not.

Subsequent Compliance

The City states that it has reduced the noise from one backup warning device by turning

the volume down. Considering the record and the complained of noise which is interfering

with Ms. Hoffman’s enjoyment of life the reduction of one source does not show subsequent

compliance. Ms. Hoffman complains of noise from the roaring engines and the loading and

unloading of aggregate in addition to the warning devices which are located on more than just

one vehicle.

After considering all of the above factors and the record we find that the City’s

maintenance facility is creating an unreasonable interference in violation of Section 900.102.

While there is some social value of the maintenance facility, it is causing a substantial and

frequent interference, its location is unsuitable considering it does not have priority of location

and surrounding land uses are residential, there has been no subsequent compliance and as

discussed more fully below there exists technically practicable and economically feasible

control devices that can be implemented which will reduce the noise. Based on these findings

the Board will consider the appropriate remedies associated with the noise source attributed to

the unreasonable interference.

Remedy

Normally, in determining the proper remedy in an enforcement case, the Board must

consider the factors set forth in Section 33(c) and 42(h) of the Act. Since the Board has

considered the Section 33(c) factors in determining that an unreasonable interference has

occurred and no civil penalties were requested, we will limit the discussion of the Section

33(c) factors in terms of fashioning a remedy. First, complainant requests that the Board order

the maintenance facility to be relocated. We find that ordering the City to relocate the

maintenance facility is not justifiable with this record considering the character and degree of

the injury or interference and the technical practicability and economic reasonableness of

relocating the maintenance facility, and the sources attributable to the unreasonable

interference. The $150,000 cost associated with relocating the facility is not economically

reasonable considering the type of interference and the alternative control options.

Alternatively, complainant requests that the following five actions be implemented to

reduce the noise: (1) equal to or better than Nelson Model 400 mufflers be put on the

equipment such as the backhoe end loader and the trucks shown in Comp. Ex #s 3, 4, 6, 10,

25, and 34; (2) that the aggregate pile be relocated on site as far from complainant's residence

as possible; (3) that the City building should be lined with drywall and unfaced fiberglass

insulation; (4) an acoustical sound barrier be built along the property line of Ms. Hoffman

approximately 150 to 200 feet in length, and roughly 20 feet high; and (5) the backup

warning devices have on/off switches installed on the same equipment that have been

designated to receive the Nelson 400 muffler. Complainant argues that all of the above actions

are necessary to reduce the noise.

In considering complainant’s request and the record, especially the testimony of Mr.

Zak, we find that not all of the above actions are necessary to reduce the noise attributable to

the unreasonable interference. It is evident from Mr. Zak’s testimony that he was considering

all aspects to the facility which may have attributed to the numerical exceedences. This

approach may be appropriate if the action before us was an alleged numerical violation.

However, this matter is before the Board pursuant to a nuisance complaint. The Board is

limited to reducing the noise that has been demonstrated to be causing the nuisance. In some

cases a source of nuisance may be eliminated but there still may exist sources of numerical

exceedences. Therefore not all the requested control mechanisms are necessary in this case as

discussed below.

The Board has determined that the record does not reflect that maintenance facility

building is a source of noise causing nuisance, and therefore, to require that it be lined with

drywall and have unfaced fiberglass insulation installed is not economically reasonable and is

not necessary to reduce the demonstrated unreasonable interference. Thus the Board will not

order the City to undertake any actions related to it.

The Board found that the loading and unloading of aggregate, which includes but is not

limited to the dirt, rock and salt piles is a source of the noise which results in unreasonable

interference. The record does not reflect the cost of moving the aggregate piles but

respondents stated that should the Board require reduction in noise it should be limited to

moving the aggregate pile in addition to adding hospitable grade mufflers and reducing the

backup beepers on the trucks. Since the City has agreed in the alternative to move the

aggregate pile and it is apparent that City has the means to do so the Board finds that moving

the aggregate piles is a practical and economically reasonable control mechanism which should

be implemented at the maintenance facility and will be included in the Board’s order.

Another source the Board found to be an unreasonable interference was the roaring of

the engines from the large trucks. Mr. Zak testified that the cost of a Nelson 400 muffler was

approximately $250 per muffler and that this should reduce the engine noise to an acceptable

level. As discussed above adding Nelson 400 mufflers or the equivalent was an acceptable

alternative to respondents. Considering the cost of adding the mufflers on six of the current

vehicles is approximately $1,500, we find that that it is a practical and economically

reasonable control mechanism which should be implemented at the maintenance facility on its

current vehicles the backhoe end loader and the larger trucks shown in Comp. Ex #s 3, 4, 6,

10, 25, and 34.

As discussed above the Board finds that the backup warning devices on the Caterpillar

equipment at the site are causing an unreasonable interference. Complainant entered into the

record OSHA regulations pertaining to motor vehicles and argued that an observer may be

used instead of the audible warning device. At 29 C.F.R. XVII Section 1926.602(a)(9)(i) and

(ii) (audible alarms for material handling equipment), which would specifically apply to the

Caterpillar equipment at the facility states:

(i)

All bidirectional machines, such as rollers, compacters, front-end

loaders, bulldozers, similar equipment, shall be equipped with a horn,

distinguishable from the surrounding noise level, which shall be operated

as needed when the machine is moving in either direction. The horn

shall be maintained in an operative condition.

(ii)

No employer shall permit earthmoving or compacting equipment which

has an obstructed view to the rear to be used in reverse gear unless the

equipment has in operation a reverse signal alarm distinguishable from

the surrounding noise level or an employee signals that it is safe to do

so.

Respondent does not argue that OSHA requires audible warning devices or that there are State

regulations which would require audible warning devices on the Caterpillar equipment at the

facility and stated that reducing the backup warning devices on the Caterpillar equipment

should be one of the remedies should the Board find unreasonable interference.

The Board finds there exists a control mechanism to eliminate the nuisance noise

associated with the backup warning devices on the Caterpillar equipment that is technically

feasible and economically reasonable. The Board will not order the City to add on/off

switches to the warning devices but will order the City to take action consistent with applicable

federal and State law to reduce or eliminate the noise from the backup warning devices.

The final control mechanism requested by complainant is the building of an acoustical

barrier. Complainant argues that the cost of the barrier would be between $12,000 and

$15,000. Respondent argues that the cost will be between $52,000-$57,000. As noted above,

Mr. Zak testified that the barrier is necessary because in his opinion, “[l]ooking at the octave

band data in previous exhibits, the mufflers, and the building lining, and even moving the

aggregate pile, it's still not going to,. . . , bring the levels down to meet the numerical limits”

(Tr. at 347.) As stated previously, this matter is before the Board pursuant to a nuisance

complaint and the control mechanisms must be related to the finding of nuisance. While

evidence concerning numerical exceedences is relevant in considering an unreasonable

interference, basing the remedy on the goal of complying with the numerical limitations is not

appropriate. We find that the acoustical barrier is not warranted since no numerical violations

are alleged. The record does not demonstrate its necessity as part of controlling the noise

which has led to an unreasonable interference. Furthermore, only some of the noise sources

have been demonstrated to be an unreasonable interference and we are ordering remedial steps

to be taken concerning these. The sound barrier is requested to reduce all noise emanating

from the facility. Considering the character and degree of the injury or interference, it is not

economically reasonable to require the construction of the sound barrier.

Conclusion

According to Title VI: Section 24 of the Act and Section 900.102 of the Board

regulations, complainant has a right to the enjoyment of their lives and property. For the

reasons stated above we find that respondent violated Section 24 of the Act and the Board’s

regulations at 35 Ill. Adm. Code 900.102.

In sum we find, based on this record and the finding of unreasonable interference, and

after considering the factors of Section 33(c) of the Act, the following control activities should

be implemented: (1) equal to or better than Nelson Model 400 mufflers be put on the

equipment such as the backhoe end loader and the trucks shown in Comp. Ex #s 3, 4, 6, 10,

25, and 34; (2) that the aggregate pile be relocated on site as far from complainant's residence

as possible as depicted on Comp. Ex#2; and (3) the noise nuisance attributable to the backup

warning devices on the Caterpillar equipment including but not limited to those depicted in

Comp. Ex#s, 10, 13, and 14, should be eliminated consistent with State and federal

regulations.

ORDER

For the foregoing reasons, the Board finds that respondent, City of Columbia, is in

violation of Section 24 of the Environmental Protection Act and 35 Ill. Adm. Code 900.102

and hereby orders respondent, City of Columbia, to undertake and perform the following

actions:

Respondent shall cease and desist from future violations of Section 24 of the

Environmental Protection Act and 35 Ill. Adm. Code 900.102.

Respondent shall install equal to or better than Nelson Model 400 mufflers be

put on the equipment such as the backhoe end loader and the larger trucks

shown in Comp. Ex #s 3, 4, 6, 10, 25, and 34;

Respondent shall relocate the aggregate piles on site as far from complainant's

residence as possible as marked at hearing on Comp. Ex#2;

Respondent shall cease and desist from causing noise nuisance due to the result

of sound emanating from the audible warning devices on the Caterpillar

equipment at the facility depicted in Comp. Ex#s 10, 13, and 14 consistent with

State and federal law.

IT IS SO ORDERED.

Board Member J. Theodore Meyer concurred.

Board Member K. Hennessey abstained.

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

appeal of final Board orders within 35 days of the date of service of this order. (See also 35

Ill. Adm. Code 101.246, Motion for Reconsideration.)

I, Dorothy M. Gunn, Clerk of the Illinois Pollution 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