ILLINOIS POLLUTION CONTROL BOARD
September 6, 2001
ROGER L. YOUNG and ROMANA K.
YOUNG,
Complainants,
v.
GILSTER-MARY LEE CORPORATION,
Respondent.
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PCB 00-90
(Citizens Enforcement - Noise)
DISSENTING OPINION (by T.E. Johnson and R.C. Flemal):
We respectfully dissent from the majority opinion. Based on the evidence presented in
this proceeding, we do not agree that the respondent’s Chester, Illinois, plant unreasonably
interferes with the enjoyment of the complainant’s property, and we believe that the Board, in
today’s order, has incorrectly applied Section 33(c) of the Environmental Protection Act (415
ILCS 5/33(c) (2000)) in reaching this determination.
As discussed in the majority opinion, the Board performs a two-step test to determine
whether noise emissions rise to the level of a nuisance noise pollution violation. First, the Board
determines if the noise constitutes an interference in the enjoyment of complainants’ lives, and
second, the Board considers Section 33(c) in determining whether the interference is
unreasonable. We agree with the majority’s opinion regarding step one of the test, and find that
the noise emissions from the plant do interfere with the complainants’ enjoyment of life.
However, after a review of the evidence presented, we are not convinced that the complainants
have met their burden of proof in showing that the emissions unreasonably interfere with their
enjoyment of life using the factors listed in Section 33(c).
UNREASONABLE INTERFERENCE, SECTION 33(C) FACTORS
As stated, the complainants have the burden of proving a violation of the Act or Board
regulations. The Board may only find in the complainants’ favor if they have proven each
element of the claim by a preponderance of the evidence. People v. Chalmers, PCB 96-111, slip
op. at 4 (Jan. 6, 2000).
The Character and Degree of Injury, 33(c)i
The Board’s first consideration under Section 33(c) concerns the character and degree of
injury or interference resulting from the emission. Although conflicting testimony exists, noise
emissions from the respondent’s plant do substantially and frequently interfere with the
complainants’ enjoyment of life. Thus, we agree with the majority opinion, and this 33(c) factor
is weighed in favor of the complainants.
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The Social and Economic Value of the Pollution Source, 33(c)ii
The Board’s second consideration under Section 33(c) involves social and economic
value. The respondent’s facility is the largest private employer in Chester, Illinois. The facility
also pays property taxes and bolsters the local economy in a number of ways as referenced in the
transcript. We find, as does the majority, that the respondent’s facility has a high social and
economic value. This 33(c) factor is weighed in favor of the respondent.
The Suitability of the Pollution Source, 33(c)iii
The Board’s third consideration under Section 33(c) is 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. Neither party disputes that the respondent has priority of location.
The respondent established the plant in question in the early 1960s, while the complainants
inherited their house in 1995, and moved into the house in 1997. Priority of location is, and
should be, a prime consideration in noise nuisance determinations. The Illinois Supreme Court
has stated that when complainants move to the nuisance, they are put on notice of the possibility
that some of the existing emissions present “could affect them, and this fact considerably
diminishes the potency of their complaints.” Wells Mfg. Co. v. PCB, 73 Ill. 2d 226, 236, 383
N.E.2d 148, 152 (Ill. 1978). The Board has recognized this importance in prior Board decisions.
In Dettlaff v. Boado, PCB 92-26 (July 1, 1993), the Board cited to Wells Manufacturing in
determining that the noise emissions in Dettlaff did not constitute unreasonable interference.
The Board stated that complainants should have been aware of the possibility of noise from the
respondent when they moved into the area, and that a further influencing factor was that the
respondent’s property was zoned commercial at the time the complainants moved. Dettlaff, slip
op. at 13. The same circumstances exist in the instant case: respondent’s facility is in
compliance with the zoning code, and does have a priority of location.
In the majority opinion, the Board correctly states that a respondent cannot rely on
priority of location as a mitigating factor if emissions are substantially increased. However, the
majority errs in finding that the respondent has substantially increased its operations to a
sufficient extent to disallow reliance on priority of location as a mitigating factor. The record
does not indicate that operations at the plant have substantially increased. The complainants
testified that noises increased in the summer of 2000. Tr. at 112, 114-15. Ron Tretter, the
general superintendent and vice president of operations for respondent’s Chester facility,
testified that he believes there has been a slight growth in the institutional department of the
plant. Tr. at 351. However, Mr. Tretter also testified that the hours per week the plant is in
operation have decreased since 1999. Tr. at 347. A further review of the record reveals that the
respondent has used the same number of shifts, three, since 1980. In addition, no evidence was
presented at hearing that the respondent has increased the size of the plant or the number of
employees working at the plant. The complainants bear the burden of establishing a substantial
increase in emissions. Wells Manufacturing, 73 Ill. 2d at 237, 383 N.E.2d at 153. The
complainants have not met that burden in this case. Therefore, both the priority of location and
the facility’s compliance with the zoning code support respondent’s suitability for its location,
and this factor should be weighed in favor of the respondent.
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The Technical Practicability and Economic Reasonableness of Reducing Emissions, 33(c)iv
The fourth issue to consider under Section 33(c) is the technical practicability and
economic reasonableness of reducing or eliminating the emissions resulting from the alleged
pollution source. As stated in the majority opinion, when considering this factor, the Board must
determine whether technically practicable and economically reasonable means of reducing or
eliminating noise emissions from the respondent’s facility are readily available to the
respondent. Once again, the complainants bear the burden of proving by a preponderance of the
evidence that emission reduction is practical and reasonable.
The complainants elicited testimony from Greg Zak of the Illinois Environmental
Protection Agency that suggested measures that they believe are technically feasible and
economically reasonable. Mr. Zak suggested the following five steps to reduce noise from the
plant: (1) enclose the flour unloading station; (2) enclose the trash unloading station; (3) impose
a contractual obligation upon its carriers to shut off their engines; (4) construct an acoustic
barrier on the sides of the complainants’ house; and (5) construct and operate a continuous noise
monitoring system. The respondent argues in detail that the proposals are neither technically
feasible nor economically reasonable. Testimony was provided illustrating various technical
difficulties with complainants’ proposed remedies. As an example, Ron Tretter testified that in
order to enclose the flour unloading station the respondent would have to encroach across a
sidewalk and out onto the street. Tr. at 332. Mr. Tretter and the respondent’s noise expert, Dr.
Weissenburger, further testified that the structure could lead to operational difficulties if
constructed “just slightly larger than truck dimensions,” as proposed by complainants. Tr. at
331, 378. Additionally, Dr. Weissenburger testified that the respondent has taken all technically
feasible and economically reasonable steps to reduce noise at the Chester plant. Tr. at 378.
We have cited one example, but the transcript is rife with testimony regarding technical
impracticalities of the complainants’ proposals. Tr. at 71-73, 98, 331-39. The testimony is
largely uncontroverted. The only testimony provided by the complainants on reduction of
emissions was elicited from Mr. Zak. Mr. Zak suggested remedies, and provided an estimated
cost for each remedy. Mr. Zak did not, however, address whether the proposed remedies were
technically practical or economically reasonable. In fact, the complainants did not offer any
actual evidence on the technical practicability or economic reasonableness of their proposed
solutions. Therefore, the complainants did not meet their burden of proof in this regard, and this
factor is weighed in favor of the respondent.
Any Subsequent Compliance, 33(c)v
The Board has found that this factor is not relevant to a determination about whether the
noise experienced by a complainant is unreasonable because no need for compliance exists until
a noise is determined to be unreasonable. Sweda v. Outboard Marine Co., PCB 99-38 (Aug. 5,
1999). However, the Board has considered a respondent’s efforts to reduce noise emissions
before any violation has been determined as a mitigating factor.
See
Sweda, slip op. at 13.
The record shows that the respondent has undertaken a number of voluntary steps in an
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effort to reduce noise emissions. Initially, the respondent contacted Mr. Zak of the Agency to
consult about the noise complaints. Tr. at 71, 262. Respondent then took noise measurements to
locate the source of the noise. Tr. at 23-24. The respondent moved its flour unloading station to
a location further from complainants’ property. Tr. at 46-47. According to respondent, this
move resulted in approximately a 9 dB decrease of noise. Tr. at 372, 375. The respondent has
limited the hours of flour unloading to 7:00 a.m. until 10:00 p.m. each day. Previously, flour
was unloaded 24 hours per day. Tr. at 67, 347-48. The respondent has placed silencers on the
blowers its trucks use to transfer flour and has instructed other carriers who deliver to the plant
to install silencers on their trucks. Tr. at 69-70, 89-90, 259. The respondent has also instructed
its trucks not to idle near the complainants’ house, and has reduced the use of its lot adjacent to
the complainants’ house. Tr. at 66-68. The respondent has made other reduction efforts
including: (1) altering its trash unloading procedures; (2) fixing noisy louvers at a building near
the complainants’ house; (3) adding dampening ductwork to a building near complainants’
property; (4) quieting louvers located at the top of its flour tanks; and (5) instructing its
employees to be quiet when near the complainants’ house. Tr. at 42, 57, 62-67
The complainants have argued that not all these changes have been effective. However,
the fact remains that respondent has made a number of good faith efforts to reduce the noise at
the facility, and this fact should be weighed in favor of the respondent.
CONCLUSION
We find that the noise from respondent’s plant has not unreasonably interfered with the
complainants’ lives. Although noise emissions from the respondent’s plant do substantially and
frequently interfere with the complainants’ enjoyment of life, the respondent’s plant is suitably
located with priority of location, has social and economic value, and the complainants have not
shown that technically practicably and economically reasonable solutions are available to
alleviate the interference. The complainants moved to the nuisance when they took residence in
a location with known noise emissions. Finally, the respondent has exhibited good faith in
attempting to reduce the noise emissions.
While we do not agree with the majority, we understand that complainants’ situation is
less than desirable. However, we cannot look past the insufficiencies in the record, and the fact
remains that the complainants have not proven their case as required by law.
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For the above stated reasons, we respectfully dissent.
________________________________
Thomas
E.
Johnson
Ronald C. Flemal
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that I
received the above dissenting opinion on September 10, 2001.
Dorothy
M.
Gunn
Illinois
Pollution
Control
Board
