2

Board Hearing Officer John Knittle held a hearing in this matter from November 1,

1999, through November 5, 1999, May 23, 2000, and May 24, 2000. Complainants presented

ten witnesses. Complainants also offered 78 exhibits, 69 of which were admitted.

1

Respondents presented five witnesses.

2

Respondents offered 61 exhibits, all of which were

admitted.

Complainants submitted their closing brief on July 7, 2000. LTD submitted its closing

brief on August 8, 2000. Complainants submitted their reply brief on September 11, 2000,

and a motion for leave to file the reply brief

instanter

on September 14, 2000. LTD did not

object to the motion to file

instanter

. The Board grants the motion.

FINDINGS OF FACT

Description of Parties and Vicinity

LTD

LTD is located at the northeast corner of the Interstate 94 tollway (tollway) and Route

22 at 2800 North Lakeside Drive in Bannockburn, Illinois. Tr. at 8, 36-37.

3

Lakeside Drive

is on the east side of LTD. Going north from Route 22, one would first encounter

landscaping, then a southern parking lot, and then LTD’s warehouse. There are 26 truck

docks at the north end of the warehouse. Immediately north of the warehouse is the truck

staging area. The truck staging area is eight to ten feet below grade level and immediately

north of the staging area is a retention wall. There are concrete pylons against the retention

wall which hold truck bumpers made of springs, wood, and rubber. A gate separates the

retention wall from a sidewalk and immediately north of the sidewalk is a row of pine trees.

North of the pine trees is the north parking lot. The north parking lot is the closest part of

LTD’s property to complainants’ residences. Tr. at 158, 217, 556, 561, 1032, 1069, 1159,

1182-83, 1482; Resp. Exh. 72, 73, 74, 75, 89; Comp. Br. at 5.

Complainants

Anthony and Karen Roti, along with their five children (aged 5 to 16 at the time of

hearing), live at 1591 Wedgewood Drive. Tr. at 667, 749, 937-40; Resp. Exh. 89; Comp. Br.

at 3. The northern boundary of LTD, which shares a common property line with the Roti

1

Complainants’ exhibit 38 is made up of 13 parts - 38A through 38M – and is counted as 13

exhibits.

2

Both parties presented Jack Voigt as a witness.

3

The transcript of the hearing is cited as “Tr. at __.” Complainants’ exhibits are cited as

“Comp. Exh. __.” LTD’s exhibits are cited as “Resp. Exh. __.” Complainants’ closing brief

is cited as “Comp. Br. at __.” LTD’s closing brief is cited as “Resp. Br. at __.”

Complainants’ reply brief is cited as “Reply Br. at __.” Public Comments are cited as “PC

__.” The Board notes that Complainants’ Exhibits 15 and 45 are respectively the same as

Respondents’ Exhibits 12 and 15.

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3

property and the other complainants’ properties, is also the boundary between Bannockburn

and Lake Forest. Tr. at 9-10, 155, 668, 1183-84, 1402; Resp. Exh. 79, 88; Comp. Br. at 1.

The south wall of the Roti residence is less than 100 yards from the LTD loading docks. Tr.

at 10. East of the Roti residence is a large grassy area. Tr. at 412.

The Rosenstrock residence is at 1541 Wedgewood Drive. It is about 125 yards from

the LTD docks and is just east of the large grassy area. Tr. at 10, 552, 558; Resp. Exh. 89;

Comp. Br. at 3. Rosenstrock’s nine-year-old daughter (at the time of hearing) Rachel lives

with him. Comp. Br. at 3. Rosenstrock’s bedroom faces south towards LTD. Tr. at 548-549;

Resp. Exh. 83. From his bedroom, Rosenstrock is able to see the LTD dock area during the

fall as the trees between his property and LTD lose their leaves. Tr. at 554, 556, 616-17.

The Weber residence is at 1481 Wedgwood Drive in Lake Forest. The Weber

residence is about 150 yards from the docks and is east of and adjacent to the Rosenstrock

house. The Weber property is the farthest east of all the complainants’ properties and does not

touch the LTD property. The Weber house is directly north of the Corporate 100 (Corporate

100) office building. Tr. at 10, 19, 244, 441, 443, 446-47, 504, 513, 881-82; Comp. Exh. 37;

Resp. Exh. 89. Leslie Weber lives with her husband Henry and her sons Scott (16 years old at

the time of hearing) and Christopher (nine years old at the time of hearing). Tr. at 441, 882.

Roti solicited support from her neighbors in her efforts to stop the noise from LTD.

Tr. at 752-55; Resp. Exh. 10. She spoke to both the Karasik and Lakin families. Tr. at 783,

786, 1651. Kendra Karasik provided a public comment at hearing, and her husband Mark

submitted a written comment. The Karasiks and their two sons live at 1590 Wedgewood Drive

in Lake Forest – directly north of and across the street from the Rotis. The Karasik family

moved into their home in mid-1998. Tr. at 1630, 1637, 1643-45, 1648; PC 1. Ken Lakin of

1566 Wedgewood Drive in Lake Forest submitted a public comment supporting complainants.

PC 3. Thomas D. Wells of 1520 Wedgewood Drive and State Representative Susan Garrett

also submitted public comments supporting complainants. PC 2, 4.

Surrounding Area

Corporate 100 is located directly east of LTD. Tr. at 26, 156; Resp. Exh. 88. There

is a fenced-in area for garbage on the northwest corner of Corporate 100 with mobile trash

dumpsters. Tr. at 26, 176; Resp. Exh. 55. The garbage area is on the northwest corner of the

Corporate 100 property that is adjacent to the northeast corner of the LTD property. The

garbage area is “right next to” the Rosenstrock and Weber residences. Tr. at 26, 623; Resp.

Exh. 89.

The tollway is located about 1,000 feet west of the Roti residence. Tr. at 27. The

tollway is also west of LTD, and there is a tollbooth on a northbound ramp that is adjacent to

the southwest corner of the LTD’s warehouse. Tr. at 27, 155, 1179; Resp. Exh. 56, 57, 88.

LTD’s Operations

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4

LTD is a mail order catalog company that has facilities in Bannockburn and Aurora

Illinois.

4

Both LTD’s corporate headquarters and one of its warehouses are located in

Bannockburn. LTD sells household items such as toys and clothing that it advertises in its

catalog. LTD does not manufacture the items that it sells. Tr. at 33, 112, 1034; Comp. Exh.

1, 2. LTD purchases items from manufacturers and those items are shipped to the LTD

facility by various shipping and trucking companies. Items from other LTD warehouses and

supplies such as corrugated boxes and packing materials are also shipped to the facility. Tr. at

34, 1054-58, 1070-71, 1097-98, 1154-55. LTD employees unload deliveries and those items

are stored in the LTD warehouse. To fill out an order, LTD employees find items in the

warehouse and put them in boxes or crates. The boxes and crates are then loaded on to trucks.

These items are then either shipped to LTD’s customers or to LTD’s other warehouses. Tr. at

31-38, 163, 284-86, 365-66, 1070-71, 1395-96, 1483-84. LTD does not lease storage space in

its facility. Tr. at 1485.

Jack Voigt has worked at LTD since 1990 and is currently the vice president of

distribution. Tr. at 1029, 1482. Voigt reported that 65% of the warehouse is devoted to

storage of shipping materials and packaged items. Voigt stated that merchandise is typically

stored from two to four weeks. The other 35% of the warehouse is used for LTD’s packing

operation, receiving, returns, maintenance, and housekeeping. Tr. at 1485-88.

LTD’s business volume has been growing, and as a result there was much more truck

traffic in 1998 than in 1988. Tr. at 62-63, 1036-37. The volume of shipping at the

Bannockburn facility decreased substantially in 1998 and 1999 as LTD opened up its Aurora

facility. Tr. at 65, 1149-51, 1199-1204. LTD has also used satellite warehouses in Franklin

Park, Bolingbrook, Libertyville, and Gurnee, Illinois and Kenosha, Wisconsin. Tr. at 1035,

1101.

LTD does not own any of the trucks coming in and out of its facility nor does it employ

any long haul truck drivers. Tr. at 150-51, 195.

LTD uses CTC as a contractor. CTC takes packages from the LTD facility and sorts

them according to US Postal Service criteria. CTC ships all items out of all of LTD’s

warehouses. Tr. at 1052-53. Since the early 1990s, CTC has operated a yard tractor (also

called a yard pig) on the LTD property. The yard tractor disengages a trailer from an overland

truck and then pulls trailers from one part of LTD’s property to another. Once the trailer has

been emptied, the yard tractor also recouples the trailer with the overland trucks. The yard

tractor also backs trailers against the northern wall of the staging area. Tr. at 28, 52-53, 151,

554, 558, 568-69, 655-57, 887, 1064; Resp. Exh. 74; Comp. Br. at 5-6. The yard tractor

backs into a trailer truck, and lifts up the trailer slightly. The yard tractor’s “fifth wheel” then

engages with the pin on the trailer and pulls the trailer away. Tr. at 55, 274.

4

Unless otherwise noted, all references to LTD concern the Bannockburn facility.

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5

In order to handle a large increase in business and the associated truck traffic, every

year LTD doubles its work force between about August 1st and December 15th. In addition to

a day shift, which generally run from about 5:30 or 6:00 a.m. until 2:00 or 3:00 p.m., LTD

often runs night shifts, which it began doing in the late 1980s

.

The second shift runs from

about 3:30 or 4:00 p.m. until 12:30 a.m., but when the second shift works overtime it can run

as late as 1:30 or 2:30 a.m. during the fall and during the Christmas season. During

September and October of 1999, the second shift usually ended by 1 a.m. During September 1

to December 15, 1998, LTD would sometimes operate on Saturday, which is also considered

overtime. Tr. at 13, 59-60, 64, 180, 182, 186-87, 867-68, 1060-64, 1067, 1090-1102, 1185-

87, 1191; Comp. Exh. 55, 56. According to Mike Hara, the chief operating officer of LTD,

LTD must continue its night shift until after midnight in Bannockburn even though the Aurora

facility is now operational. However, the Aurora facility should end the need for operating the

Bannockburn facility until 2:30 a.m. Tr. at 186-87.

LTD regularly employs in excess of 600 people at its Bannockburn facility, and during

the Christmas season the number swells to between 1,200 or 1,300. LTD also provides

significant tax revenue to all of the local taxing districts in which it is located. The total real

estate tax that LTD paid during 1999 was in excess of $300,000. Tr. at 39, 1419 -23, 1471;

Resp. Exh. 39.

History of Property Uses

FMC built a warehouse on the property in about 1976 or 1977 with eight truck docks.

LTD purchased the property in December 1986 and then added 18 docks bringing the total

number of docks to 26. At about this time, LTD constructed an addition that doubled the size

of LTD from 100,000 square feet to 200,000 square feet. Tr. at 8-9, 17-18, 1271-72. In the

late 1980s, LTD purchased property on the south end of its existing property. This purchase

allowed LTD enough room to again double the size of its facility again to 400,000 square feet

in 1994. 350,000 square feet of its facility is warehouse space. Tr. at 10, 46, 163, 1031,

1436; Comp. Exh. 3; Resp. Exh. 88.

The Village of Bannockburn did not want LTD’s docks visible from Route 22, so LTD

built its docks on the north side of the warehouse. Comp. Exh. 62 at 2.

LTD’s expansion and warehouse addition during 1994 and 1995 took place on a parcel

of land it had acquired to the south of its original facility. Tr. at 19. LTD did not add truck

docks at this time. As a condition of expanding the warehouse, Bannockburn suggested that

LTD commit to a landscaping project on the south side of its property to obscure the

warehouse and parking lot. Comp. Exh. 62 at 1. LTD added the retaining wall to the staging

area, built the truck bumpers, and planted the pine trees. Tr. at 1033, 1082, 1205.

LTD paid $6.6 million when it purchased property from FMC in the mid 1980s. It

paid between $1.5 and $2 million for its first warehouse expansion and then paid $3.9 million

when it purchased the land for its warehouse expansion in 1989. LTD paid $6 million for the

expanded warehouse in 1994. Tr. at 41-42, 142-43.

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6

In a 1980 aerial photograph, no houses are shown directly north of the FMC

warehouse. Tr. at 162; Resp. Exh. 86. The complainants were aware of the commercial

property to the south when they moved into their homes. Tr. at 497-502; Comp. Br. at 7.

In 1987 the Brown family bought the lot that they eventually sold to the Rotis. In

March of 1990 the Rotis purchased their current home from the Browns, and the Rotis moved

in the following August. Tr. at 18, 19, 667, 731, 959, 1254, 1616; Resp. Exh. 88. On

July 6, 1988, the Webers bought their lot. The Webers had their current home built on the

property and moved in during January 1992. Tr. at 18-20, 444, 443, 505, 883, 906, 1254. In

1987, Rosenstrock entered into a contract to buy his lot and house. The purchase closed in the

summer of 1988. Tr. at 18-19, 547, 1254; Resp. Exh. 88. Rosenstrock had extra insulation

installed in his home to protect against noise and had a berm built on the south end of his home

in order to shield his home from LTD and Corporate 100. Tr. at 614.

Sources of Noise/Description of Noise

Complainants alleged that the noise comes from the operation on the north side of

LTD’s property. Tr. at 9.

Complainants heard hissing noise from air brakes, which happens anytime that a tractor

disengages from a trailer. Greg Zak, the noise advisor for the Illinois Environmental

Protection Agency (Agency), described it as short duration, impulse sound. Tr. at 85-86, 266,

275, 420, 465, 473, 483, 492, 567, 580, 629, 722-33, 949, 1006, 1086; Comp. Exh. 42.

The hydraulic system on the yard tractor’s fifth wheel raises the trailer up high enough

to allow the pin to fit into the fifth wheel, and then it lowers the trailer when the yard tractor

has move the trailer into position. Complainants heard noise from the fifth wheel on a truck or

yard tractor engaging, disengaging, or “slamming” into the truck trailers. Tr. at 52-53, 55,

73, 448, 450, 459, 463, 492, 559, 566, 629, 679, 683, 691, 884, 889, 893-94, 948-49, 956,

1075-78, 1080-82, 1088; Comp. Exh. 7 and 12.

Zak described the noise from the fifth wheel engaging or disengaging with a trailer pin

as impulse sound. Weber described the engaging/disengaging as a hissing noise, similar to the

release of air brakes. Tr. at 106, 274-75, 450-51, 483, 693-94.

Complainants heard the sound of the motors on trucks and the yard tractor. The noise

from the yard tractor’s motor was even worse prior to 1997, but it was still making noise as of

the date of hearing. Tr. at 76, 559, 563-65, 580-81, 770, 944, 1078-79; Comp. Exh. 12.

Leslie Weber complained about the noise from the accelerating and idling of diesel engines,

including the yard tractor. She claimed that these noises come from the staging area and

Lakeside Drive. Tr. at 450, 473, 493, 513.

There is also a boom sound when the back doors of truck trailers (which are not locked)

swung open and closed as the yard tractor moved the trailer into position. Tr. at 459-60, 483,

512, 884, 893; Comp. Exh. 8, 12.

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7

Complainants also heard the sounds of trucks or the yard tractor as it moved trailers

against the bumpers on the north wall of the staging area. Rosenstrock described it as a smash

or boom that “sounds like an explosion or a bomb has gone off.” The collision of the trailers

against the bumpers caused the ground to vibrate under Rosenstrock’s home, and the shaking

once caused a light fixture to fall. Noise from LTD has also caused low frequency vibrations

at the Roti residence about six times a day, but there were no such vibrations at the Weber

residence. Anthony Roti testified that the windows stopped rattling after LTD got a quieter

yard tractor, but, as of the hearing date, his residence shook occasionally from other LTD

noises. Karen Roti reported that vibrations from the yard tractor were not as noticeable in

1999 as they were in 1998. Tr. at 24, 98, 518, 559, 568-69, 571-78, 580-81, 617, 619-20,

630, 632, 695, 703, 711, 725-28, 770-71, 945, 995, 1006, 1083; Comp. Exh. 15, 42, 44;

Resp. Exh. 12.

Complainants heard backup warning devices on trucks and yard tractors. Tr. at 75-76,

98, 276, 277, 474-75, 567, 580, 618, 695, 898, 901, 956; Comp. Exh. 12, 15, 42, 44; Resp.

Exh 12. Mark Karasik and Thomas D. Wells complained about beeping noises as well. PC 1,

4. Ken Lakin complained of a “loud chirping noise.” PC 3. Karen Roti testified that the

beeping noise from LTD became much more prevalent beginning in August 1999, and lasted

from about 5:30 a.m. until 12:30 a.m. Tr. at 718-721. Leslie Weber and Anthony Roti

reported a new mostly constant beeping noise in the fall of 1999 coming from LTD. They

claimed that the beeping noise was not the backup warning device from garbage trucks at

Corporate 100. Tr. at 474-478, 951, 1005-6. Voigt said that the yard tractor at LTD was

fitted with a backup warning device for the first time in 1999. Over-the-road tractors have

backup warning devices and had them prior to 1999. Tr. at 1142-43.

Complainants also heard the sound of air horns coming from LTD. Tr. at 98, 586,

695, 703, 947, 956, 980; Comp. Exh. 15, 44; Resp. Exh. 12. They also heard nonspecific

slamming, banging, booming, and crashing sounds from LTD. Tr. at 98, 447-48, 695, 703,

711, 722, 723, 944, 947-48, 956; Comp. Exh. 15, 44; Resp. Exh 12.

Anthony Roti and Leslie Weber have heard noise from LTD as late as 2:00 a.m. Leslie

Weber has heard it as late as 3:00 a.m., but she claimed that the noises were loud during the

early evening hours as well. Tr. at 493, 514, 895, 944. Rosenstrock claimed that he heard

noise from the LTD property 24 hours a day, including hearing the yard tractor during the

early morning hours after LTD’s second shift has ended. Tr. at 658. Voigt claimed that LTD

has never operated 24 hours a day. Tr. at 1152, 1320. Karen Roti also testified she has heard

the noise 24 hours a day in rotations of an hour and a half. Tr. at 693, 712, 779. Henry

Weber heard noise at 6:00 a.m. when he got up for work. Tr. at 895.

Description of Ambient Noise

Tom Thunder, an expert in audiology (the study of hearing) and acoustics (the study of

sound), stated that the American National Standards Institute (ANSI) defines ambient noise as

“all-encompassing noise from sources near and distant that are always in the background.” Tr.

at 1510.

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8

Complainants testified that they heard constant noise from the tollway and the

northbound on-ramp to the tollway. Tr. at 26, 76, 507, 913-15, 978-79, 982, 1004. Karen

Roti has heard trucks accelerate away from the tollbooths on the tollway. Tr. at 738.

Rosenstrock was aware of the tollway noise when his window was open. Tr. at 606. The

Webers and the Rotis testified that noise was louder when the wind is blowing from west to

east (from the tollway to complainants’ homes). Tr. at 26, 508, 758, 913, 980. Henry Weber

testified that that the noise from the tollway was quieter when traffic is backed up. Tr. at 929.

Anthony Roti testified that noise from the tollway did not disturb him. Tr. at 1005.

The Rotis and the Webers hear noise from the Corporate 100 garbage facility. These

noises include the backup warning devices from trucks, the clanging noise of the dumpster

being lifted and tipped upside down, and the banging the trucks cause when they place the

dumpsters on the pavement. There is also noise from the Corporate 100 parking lot. Leslie

Weber testified that the truck noise at Corporate 100 in the past happened at 5:00 to 5:30 a.m.,

but as of 1999 was happening at 6:00 or 6:30 a.m. Anthony Roti testified that the garbage

pickup at Corporate 100 is a weekly occurrence that only lasts for five to ten minutes. Tr. at

26, 516-19, 738-740, 899-900, 916, 918, 985-87, 1001-02. Rosenstrock has heard the backup

warning device on the garbage trucks at Corporate 100 as well, but no other noises. Tr. at

625. Leslie Weber claims that car and truck traffic from the vicinity of Corporate 100 has

never woken up her or her family. Tr. at 454. The Webers admit that they are disturbed,

annoyed, and woken up by trucks in the Corporate 100 garbage facility. Tr. at 516-519, 529,

918-19. However, Henry Weber testified that the backup warning devices on the trucks in the

Corporate 100 parking lot only last 30 seconds, while the backup warning devices at LTD can

last for an entire evening. Tr. at 933.

Leslie Weber can hear trucks on Lakeside Drive. Tr. at 513-14. Karen Roti can hear

trucks accelerate from the staging area to Lakeside Drive. Tr. at 738-39. Karen Roti and the

Leslie and Henry Weber heard construction noises from a nearby office building during 1998

and 1999. Tr. at 523-24, 759, 915-16.

Interference

Rosenstrock’s annoyance with LTD’s noises began after they built the below-grade

staging area, expanded their hours of operation, and began using yard tractors. This occurred

about the time of the 1994 expansion. Tr. at 562, 591-92, 610, 612-13, 660-62. Henry Weber

claims that the operating hours and intensity of operations changed at this point. Tr. at 922.

Prior to the LTD warehouse expansion in 1995, Karen Roti testified that she heard noise from

the LTD facility but that it was not “disruptive.” Tr. at 1633.

Beginning in 1996 and continuing through the hearing, complainants were disturbed by

the noise beginning each year in the late summer/early fall and ending in mid to late

December. Tr. at 444-47, 455, 458, 472, 496 883-84, 889-90, 892-95, 897 (Webers); Tr. at

671, 679-80, 681, 686-89, 711, 730-31, 771-72, 943 Comp. Exh. 15 (Rotis). Roti said that

she can still hear noise at other times, but it is worse during the August to December period.

Tr. at 776, 780-81.

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9

Complainants testified that they heard noise from LTD Monday through Friday nights.

Tr. at 478-79, 534, 888 (Weber); Tr. at 682, 713-17, 775-76 (Roti). Leslie Weber heard

noises from LTD once every five to ten minutes. Tr. at 463-64.

Paul Rosenstrock was the only complainant who kept a kept a log of noise from LTD

that was admitted as an exhibit at hearing. The log reflected the noises that Rosenstrock heard

coming from LTD during a one-hour period in the evening between 10:00 and 11:00 p.m.

Rosenstrock heard noises 32 times during that hour, and the noises lasted from 10 to 40

seconds each. Rosenstrock also kept track of the very loud noises and occasional shaking of

his house. Tr. at 24, 483-84, 570-81; Comp. Exh. 42. Although his log tracked only the

week of October 20-26, 1999, and, in particular, October 27, 1999, Rosenstrock said the

noises were typical of the ones that he had heard from late summer to mid December during

1996 through 1998. Tr. at 582-83.

The noise from LTD made it difficult for complainants and their families to fall asleep

and the noise awakened them from sleep. Tr. at 14, 679, 680, 696, 723-26, 947, 952-53, 956-

57 (Rotis); Tr. at 448-49, 453-55, 529-30, 896; Comp. Exh. 8 (Webers); Tr. at 571-73, 577,

584 Comp. Exh. 42 (Rosenstrock). On a few occasions, Leslie Weber would awaken in the

middle of the night and drive to the Corporate 100 parking lot to investigate the sources of the

noise from the dock area of LTD. Tr. at 448-50, 530. The Webers admitted that their son

Christopher is not awakened by the noise from LTD. Tr. at 24, 512, 923-24. However,

Weber’s son Scott has heard the noises from LTD in his bedroom. Tr. at 530; Comp. Exh. at

8. Karen Roti testified that she could sleep on nights when there was noise from LTD only by

taking “[T]ylenol with codeine or Benadryl or a couple beers.” Tr. at 714, 776-77. Karen

Roti also testified that she had not yet been woken up in the middle of the night during 1999.

Tr. at 779.

The lack of sleep affected complainants’ personalities, causing them to become tired,

tense, short-tempered, grouchy, and irritable. Tr. at 471-72, 890, 894, 896, 930 (Leslie

Weber); Tr. at 681, 712-13, 717, 952, 957 (Roti). The Roti children could not wake up for

school on some mornings. Tr. at 680.

Noise from LTD distracted complainants while they tried to read. Tr. at 494, 890

(Webers), 567, 924, 931-32 (Rosenstrock). The noise disrupted the Roti children while they

studied. Tr. at 947-49. The noise from LTD disturbed Rosenstrock when he talked on the

telephone. Tr. at 567. The Webers were disturbed by LTD’s noises when they were in their

living room playing games and doing other quiet activities around the house. Tr. at 534, 888,

894, 898 (Webers). The noise interrupted Anthony Roti while he tried to work at home. Tr.

at 947-50, 952, 956.

In the late summer and early fall, the noise made it difficult for the Webers to enjoy the

use of their outdoor decks. Tr. at 457-58, 533, 891, 898 (Webers). The noise from LTD

made the Rotis’ youngest daughter afraid to go outside, and it also startled her inside the

residence. Tr. at 696.

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10

As a result of the noise from LTD, Rosenstrock does not open his windows. Tr. at

659. During late summer and fall of 1996, Anthony Roti would not open the doors and

windows to his home. Tr. at 946. Nevertheless, complainants could hear the sounds from

LTD when their windows and doors were closed. Tr. at 565-66, 659 (Rosenstrock); Tr. at

693, 703, 950 (Roti); Tr. at 885-86 (Weber).

Rosenstrock testified that the noise from LTD was “tremendously annoying, very

disruptive of my life and my house.” Tr. at 579.

Kendra Karasik testified that she started hearing the noises from LTD soon after

moving in. Tr. at 1637-38. She could hear the noises during the day and “intermittently” at

night. Tr. at 1649. She could hear the constant hum of tollway from her house but it did not

disturb her or her family. Tr. at 1638, 1645. Karasik said that she heard noise from LTD

from September through December of 1998. Tr. at 1645. She claimed that November of 1998

was particularly difficult because her sons were being tested at school but they were tired and

sick. Tr. at 1638, 1644. Karasik said that both of her sons are affected by the noise. Tr. at

1649. Karasik could not watch television at 9:00 p.m. due to the noise from LTD. Tr. at

1639.

The Rotis listed their house for sale in the summer and fall of 1996 with a realtor named

Marcia Rowley and in 1997 listed it with a realtor named Karen Dickey. Karen Roti claims that

her family contemplated moving to another house because they needed another bedroom. Karen

Roti claims that she did not mention the LTD noise to the realtors, while Anthony Roti cannot

recall if he did or not. Rowley did not recall the Rotis mentioning the noise from LTD. Tr. at 25,

762-69, 968-70, 976-77, 1015-16, 1349-51, 1362-63; Resp. Exh. 8, 9. Rowley mentioned several

reasons that prospective buyers did not want the house, but none mentioned noise. Tr. at 1355,

1357-58. The Rotis have decided not to put their house back on the market until the case before

the Board concluded first. Tr. at 782.

Efforts to Achieve Noise Reduction

Complainants

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11

Karen Roti estimates that she has spent “[h]undreds of hours” trying to address the

noise from LTD. Tr. at 730. At various times, the Rotis contacted Greg Zak

5

and officials

from LTD, the Village of Lake Forest, and the Village of Bannockburn in order to seek a

reduction in the level of noise. Tr. at 14, 98, 682, 700-4, 946; Comp. Exh. 15, 27, 29, 45;

Resp. Exh. 12, 15. Karen Roti also went to a Village of Bannockburn meeting in about 1996.

Tr. at 682. As early as January of 1997, Leslie Weber had been in contact with the Village of

Bannockburn regarding her concerns with the noise from LTD. Tr. at 51; Comp. Exh. 7 and

8. Leslie Weber wrote a letter to David Lothspeich, Administrator for the Village of

Bannockburn

,

in January 1997 to ask for assistance with the noise problem. Comp. Exh. 8.

By July of 1998, when it became clear to complainants that LTD would not build a noise wall,

complainants filed this matter before the Board Tr. at 15-16.

LTD

LTD engaged in various activities to address the noise problem, such as hiring Acoustic

Associates, Ltd. (Acoustic Associates) in 1997 to begin studying the noise problem. However,

Lothspeich and other Village of Bannockburn officials were often concerned that LTD was not

addressing the noise problem in a prompt manner. Tr. at 67; Comp. Exh. 6, 10, 16, and 17.

Nevertheless, it is worth examining LTD’s actions. After receiving complaints about

noise, LTD began developing a “good neighbor policy” in 1996 and implemented it during

1997. LTD asked truckers not to blow their horns at the LTD facility unless it was for safety

reasons. LTD asked truckers to avoid excessive acceleration of their engines and to refrain

from shouting on LTD’s property. LTD asked truckers to stay off the north parking lot of

LTD’s property. LTD told truckers that if they parked or idled on Lakeside Drive, the

Bannockburn Police Department would ticket them. LTD gave pamphlets to truckers and

mailed pamphlets to trucking companies with information about the good neighbor policy.

LTD posted signs for truckers explaining the good neighbor policy. LTD also posts a guard at

the entrance to its parking lot in order to keep trucks away from the north parking lot. LTD

warned each trucker that multiple violations of the policy could result in LTD’s refusal to do

business with that trucker’s company. Tr. at 28-29, 100-1, 159, 626, 651, 1071-72, 1169-72,

1183, 1195, 1220; Comp. Exh. 4, 25, and 33; Resp. Exh. 18, 36, and 77.

Voigt testified that LTD now requires doors on the backs of trailers to be hitched open

in order to prevent those doors from swinging, hitting the trailer, and making noise. Tr. at

1172.

5

Zak has 27 years of experience in the Agency’s noise program and is an expert in the field of

human sensitivity to noise. Tr. at 338, 376. Zak responds to about 3,000 noise complaints a

year. Tr. at 431. Zak testified at hearing after the complainants subpoenaed him. Tr. at 267-

68.

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12

LTD also asked truck drivers to raise the heights of the legs on the trailers in order to

reduce the distance that a trailer would be raised or dropped by the fifth wheel on a yard

tractor during uncoupling/recoupling of the trailers. Voigt admitted that if the legs of the

trailer are at a certain height and if the engagement happens at an appropriate speed, the noise

of the engaging / disengaging is not as loud. However, yard tractors (or trucks) and trailers

may not hook properly if the drivers are overly concerned with noise reduction. Raising the

trailer can cause connection problems that could result in repeated couplings and more noise.

Tr. at 108, 1089, 1173-74; Comp. Exh. 24.

In 1997, LTD requested that CTC secure a quieter yard tractor, and CTC complied.

LTD also asked CTC to drive the yard tractor slower in order to reduce noise levels. Tr. at

28, 54, 98, 101, 169-70, 188, 1065, 1172-73, 1190. Comp. Exh. 15; Resp. Exh 12. LTD

also considered securing an electric tractor, but the record does not indicate if LTD made any

further inquiries. Comp. Exh. at 33. Rosenstrock admitted that he noticed a decreased

amount of noise from the yard tractor after 1996. Tr. at 563.

Leslie Weber admitted that noise from the yard tractor at LTD did not bother her as

much in 1999 as it did in 1997. Tr. at 519. Anthony Roti said that the noise from the yard

tractor is more muffled in 1997 than it was in 1996. Tr. at 947-49, 951, 979. Karen Roti said

that she could still hear truckers blowing their horns at least three times a day in 1999,

although the noise was not as prevalent as it was during 1997 and 1998. Tr. at 774. Karen

Roti also noticed an improvement, but she said that the noise from the yard tractor remained a

“serious problem for LTD’s neighbors.” Comp. Exh. at 15; Resp. Exh. 12.

Voigt testified that during a week in September 1999 and for a couple of days during

the week of hearing in November 1999, LTD disconnected the yard tractor’s backup warning

device. Voigt indicated that LTD might be willing to disconnect the backup warning devices if

it was legal and if it did not compromise safety. Tr. at 1149, 1154. However LTD’s counsel

warned of potential liability problems as a result of removing the backup warning devices, so

they were reinstalled. Tr. at 102, 109, 172-73, 195.

While on a tour of LTD, Zak suggested that LTD should fix its dock levelers. Dock

levelers extend from the dock into a trailer bed and allow forklifts to enter and exit truck

trailers. Often when a trailer pulls away from the warehouse, the dock leveler will drop and

slam against the side of the warehouse or up against itself. LTD fixed its dock levelers by

having worn parts replaced so that the leveler would come down at a slower rate of speed.

The repairs to the dock levelers prevent them from striking the truck dock walls. Tr. at 28,

1166-69, 1171-72. Voigt estimated that the repairs to the dock leveler cost less than $20,000.

Tr. at 1196.

Suggested Noise Reduction Measures

Noise Abatement Wall and Materials

---

13

Thunder recommended that LTD contact Huff Company (Huff) for information on a

noise wall. Tr. at 230, 1544. Huff, which specializes in the “design, supply, and installation

of noise control products and systems,” submitted several preliminary proposals and a final

proposal to Hara and LTD. Tr. at 11, 200. Huff has sold other noise walls in the Chicago

area and the Midwest, including selling a wall to the Illinois Toll Authority. Tr. at 211, 217,

233, 243. Steve Mitchell, owner and president of Huff, testified that Huff could build a noise

wall in between LTD and complainants’ properties. Tr. at 11, 200.

In March of 1998, Huff submitted a preliminary proposal and estimated that the cost of

a sound barrier wall with dimensions of 15 feet in height by 250 feet in length at a cost of $42

per square foot would be $158,000. This figure incorporated engineering, support structure,

wall panels, and installation. Huff estimated that such a wall would have to bear a tremendous

wind load (up to 100 mph) and thus would have a support structure set deep in the ground. Tr.

at 219; Comp. Exh. 26, 38B. After analyzing the Huff proposal, assuming that the LTD

facility would be Class B land, and using the $42 per square foot estimate, Thunder determined

that LTD would need a wall varying in height from 5 to 13 feet, 375 feet in length, and costing

about $120,000, but later revised the estimate to $115,000. Tr. at 1548-50, 1594-95; Comp.

Exh. 31, 32, 36, and 38C. Thunder then testified that the $120,000 proposal would not result

in a “noticeable” sound reduction of five dB or more. Tr. at 1545-48, 1590-91.

On November 17, 1998, Mitchell sent Huff’s proposal for the noise wall to Voigt.

Comp. Exh. 38I. The proposal showed a wall that would be about six feet north of the

retention wall, thus separating the truck staging area and the north parking lot. The east end of

the wall would be at the entrance to the parking lot, and the west end would be at the west end

of the staging area. Tr. at 216-17, 239, 241, 246; Comp. Exh. 38E. The Huff proposal was

further refined as the wall would only need to stand gusts of 80 miles per hour (mph) pursuant

to local construction codes. Tr. at 225, 1145; Comp. Exh. 38F. The proposal called for a 14-

foot tall by 682-foot long acoustical barrier wall with five- inch thick painted galvanized steel

panels. The panels would be perforated on the side of the noise source and are therefore better

able to absorb noise. There would be three openings for access to the parking lot. Some

removal of trees and shrubbery in the area would be necessary but these costs were not

included in the final proposal. The total cost, including materials and installation, was just

under $300,000. Tr. at 143, 228-30, 232, 240, 1145; Comp. Exh. 38I.

Voigt was surprised at how the estimate for the cost of the wall had grown. In early

1999, at Voigt’s request, Huff also provided “cost reduction options” such as making the wall

12 feet high (a $28,300 savings) or 10 feet high (a $56,700 savings) and eliminating a 16-foot

wide section of panels ($5,100 to $6,400 depending on the height of the wall). Tr. at 233-35;

Comp. Exh. 38J, 38K.

Complainants favor the construction of the 12-foot by 682-foot noise wall. Comp. Br.

at 1. Voigt testified that, as a result of LTD’s contractors not being able to guarantee the

effectiveness of the wall in stopping noise to the complainants’ satisfaction, LTD decided not

to construct the wall. Tr. at 143, 1137; Comp. Exh. 33.

---

14

Other Measures

Both Thunder and Zak testified that some of the noise problem could be traced to

sounds from the LTD staging area, which reflect off the north wall of the LTD building and

back to complainants’ properties. Thunder said that acoustically absorptive materials could be

placed on the north wall of the LTD facility to reduce the amount of reflective noise but that

the materials “might not look good.” Tr. at 420-21, 1600-02, 1605. In his deposition,

Schomer agreed that acoustically absorptive material on LTD’s north wall would reduce noise

levels. Schomer also testified that acoustically absorptive materials might be useful on the

walls of the staging area but that he would want to examine this option further. Comp. Exh.

65 at 132-33, 145-47.

Thunder also wrote that a parking garage for the north parking lot or a dome could

serve as a sound barrier. Comp. Exh. 35.

Thunder testified that administrative changes might work because impulsive sound is

usually the result of someone not being very careful. However, LTD might have trouble

controlling people who are not their employees. Thunder suggested that LTD have an on-site

employee (a “dock pilot”) work with the off-site employees to encourage the off-site

employees to slow down and be more careful in their actions, especially at night. Tr. at 1535-

36.

In their reply brief, complainants requested that the Board order LTD to undertake

measures to ensure that the noise will stop, such as ceasing operations between the hours of

10:00 p.m. and 7:00 a.m. If the Board will not do this, complainants asked that the Board

order LTD to construct a noise wall, or “at the very least” order LTD to disengage the backup

warning device on the yard tractor. Reply Br. at 2, 13. LTD acknowledges that federal

Occupational Safety and Health Administration (OSHA) regulations require either backup

warning devices or observers to guide trucks. However, respondents claim that hiring an

observer at night is dangerous because truck drivers may not be able to see observers in the

dark. Resp. Br. at 26-27. Complainants replied that LTD keeps their dock area well lit.

Complainants stated that LTD should employ an observer to guide the trucks instead of relying

on backup warning devices. Reply Br. at 13.

Hara testified that eliminating the second shift would “destroy” LTD. LTD would

have to lay off half of its workers and would not have the capacity to ship orders out during the

Christmas season. Tr. at 174, 184-85. Even if the second shift ended at 10 p.m., LTD could

not ship its Christmas orders. Tr. at 186.

Rosenstrock, who is a licensed commercial truck driver, suggested that LTD ban the

blowing of air horns on their property. He also suggested barring LTD from backing trucks

into the north wall of the staging area. Tr. at 552, 586-89, 594, 628; Comp. Exh. 43.

The Village of Bannockburn retained Dr. Paul D. Schomer as an expert. Comp. Br. at

4; Resp. Br. at 12. Schomer has worked in the field of acoustics for over 30 years and was

---

15

involved in the development of the Board’s noise regulations, including land classification. Tr.

at 20-21, 80, 117, 1465; Comp. Exh. 65 at 8-9, 11-17, 23-27, 102. In his deposition,

Schomer testified that a berm would be 1/3 the cost of a wall, but that berms require a large

amount of horizontal space relative to their vertical height. Alan Kracower is a land planning

and land use consultant in addition to a landscape architect with over 30 years’ experience in

these fields. He is LTD’s land use planning expert and observed the operations at LTD. Tr.

at 1382, 1436. Kracower said that there is not enough room to build a berm between LTD’s

facility and complainants’ properties. Tr. at 1425; Comp. Exh. 65 at 124.

Sound Measurements and Analysis

The Village of Bannockburn asked LTD to hire a noise consultant. Tr. at 177. LTD

hired Acoustic Associates in January of 1997. Tr. at 10, 1114-15, 1498. Thunder is the

principal for Acoustic Associates. Tr. at 811, 1491-95. Roger Harmon is a field engineer

contractor for Acoustic Associates and works on industrial noise control, noise surveys for

industrial facilities, and residential noise complaints. Harmon has over 30 years of experience

in the field of acoustics. Tr. at 810-11, 1508; Comp. Exh. 6.

On September 23, 1997, Thunder and Harmon went to the LTD facility in preparation

for conducting noise measurements. Tr. at 816-18, 824, 1499, 1509. Voigt described the

activity at LTD the night as typical for September of 1997. Tr. at 1176-77. That night,

Harmon set up instruments, and took noise measurements on the line between the Roti and

Rosenstrock properties. Tr. at 10-11, 816-18, 821-22, 1562; Comp. Exh. 19.

Harmon estimates that the instruments were set up at spots 10 and 50 feet from the

fence separating complainants’ properties from LTD. Harmon estimated that the instruments

were about 300 or 400 feet from the truck docks at LTD. The microphone capturing the

sounds was 5.5 feet above the ground. After setting up the instruments, Harmon drove to the

west end of the LTD parking lot to observe LTD’s operations while the instruments were on.

The monitoring included recording sound levels from LTD for a nominal one-hour period plus

additional monitoring to assess background noise. He recorded events at LTD, off and on,

from 11:41 p.m. on September 23 until 3:01 a.m. on September 24. It was not raining.

Harmon recorded events at LTD at about midnight while LTD employees were present, turned

off the instruments for awhile, and then turned them back on again after the LTD employees

had left in order to record background noise. While recording the noise levels, Harmon took

field notes of significant events occurring at the site along with the time of occurrence. The

temperature was 53 degrees Fahrenheit with wind blowing at approximately five mph from the

east. Tr. at 832-34, 1513-14; Resp. Exh. 97 at 2.

Harmon monitored the sound levels at both locations by using a Bruel & Kjaer Type

2221 precision, integrating, sound level meter connected to Sony TCD-D8 digital audio tape

(DAT) recorders. Res. Exh. 97 at 1 and Tr. 826. The microphones were set at 5.5 feet above

the ground. The sound level meters were calibrated by recording a calibration tone using a

Bruel & Kjaer Type 4231 precision calibrator and subsequently verifying the calibration tone

in the laboratory by using a sound level analyzer. Harmon used a Hewlett-Packard Model

---

16

6569A Signal Analyzer to verify the calibration tone and the sound levels recorded on the DAT

recorders. Tr. at 825-26, 834, 860-61; Resp. Exh. 97 at 1-2. The measurements recorded at

the 10 foot and 50 foot locations were less that one decibel (dB) apart, so LTD used the

measurements from the 10 foot location in its analysis. Tr. at 839-44, 854-55; Comp. Exh.

19.

Harmon did an initial analysis on the noise measurements in the laboratory by using the

Hewlett Packard analyzer. He verified the calibration tone to ensure that the analyzer is in

calibration before feeding the recording to the analyzer, which generated an integrated, 1/3-

octave band spectrum every 5 seconds. Res. Exh. 97 at 2. Harmon then transferred the data

to Thunder for further analysis. Tr. 837. Thunder performed further analysis of the sound

monitoring data and summarized the results in a report to LTD dated January 8, 1998 (January

8 Report).

Thunder determined the A-weighted sound levels in terms of Leq using a reference time

of five seconds to evaluate the impulsive sounds emanating from the LTD dock. He also

determined the sound levels for octave bands in terms of Leq with a reference time of 54

minutes. Thunder’s report also included sound levels in 1/3-octave band, and A-weighted

levels measured on a fast time-constant. In addition, the report included the measured ambient

sound levels, which were above the sound levels measured during the operation of LTD’s

facility. He noted that because the ambient noise levels were higher, a correction to determine

the actual noise radiated from the LTD dock alone could not be made reliably. Resp. Exh. 97

at 3.

In order to assess the impact of noise from LTD operations, Thunder estimated the

ambient noise level by using an L

90

spectrum. By comparing the measured octave band sound

levels with the estimated background sound levels, he concluded that noise from LTD’s docks

and staging area were audible and that the noise in higher frequencies was significantly above

the estimated background noise. Resp. Exh. 97 at 4. In addition, Thunder stated that random

impact noise events appear to exceed the Board’s impulsive noise limits. Resp. Exh. 97 at 3-4.

In order to gather more data on ambient noise, Harmon took additional measurements

on March 28, 1998, starting at 12:48 a.m. A light rain was falling at the time. Harmon took

measurements at several locations along the property line between LTD and complainants’

properties. Harmon set up two sets of instruments for measuring sound that night. One set of

instruments was located 50 to 100 feet from the fence separating the LTD property and the

tollway property. Harmon moved the other set of instruments to three locations: the first was

between “the dumpster and the little crook in the north end of the parking lot” which was 20

feet from where the 10-foot measurement was taken on the night of September 23-24, 1997;

the second location was 200 feet closer to the tollway (west of the first location); and the third

location was 200 feet further away from the tollway (east of the first location). That night the

wind was again blowing east to west. Tr. at 848-51, 868-73; Resp. Exh. 98 at 1. Acoustic

Associates submitted a report to LTD dated May 6, 1998 (May 6 Report) describing the

measurements taken on March 28, 1998. In the May 6 1998 Report, Thunder wrote that noise

monitoring at 150 feet from the tollway did not reveal any significant changes in ambient noise

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17

readings from 1:00 to 3:00 a.m. Thunder also wrote that estimated ambient readings did not

change either. Resp. Exh. 98.

DISCUSSION

The Board will first discuss the alleged violations of the numeric noise standards at 35

Ill. Adm. Code 901.102(a), 901.102(b), and 901.104. The Board will then discuss the alleged

violations of the nuisance noise prohibitions of the Act at 415 ILCS 5/24 (1998) and the

Board’s regulations at 35 Ill. Adm. Code 900.102.

Numeric Violation

Nighttime Numeric Noise Limits

The Board has numeric sound limits for daytime and nighttime hours. The numeric

limits for daytime hours are less stringent than for nighttime hours. See 35 Ill. Adm. Code

901.102(a) and (b). The Board also has a separate set of limits for impulsive noise.

Complainants alleged violations of both daytime and nighttime numeric limits, but there was

very little information in the record about alleged violations of daytime limits and no

measurement of daytime noise, so the Board confines its analysis to alleged violations of

nighttime limits and impulse limits. The nighttime numeric limits are at Section 901.102(b)

that provides:

b) Except as elsewhere in this Part provided, no person shall cause or allow

the emission of sound during nighttime hours from any property-line-

noise-source located on any Class A, B or C land to any receiving Class A

land which exceeds any allowable octave band sound pressure level

specified in the following table, when measured at any point within such

receiving Class A land, provided, however, that no measurement of sound

pressure levels shall be made less than 25 feet from such property-line-

noise-source.

The numeric nighttime noise limits from Class B and Class C Land at Section

901.102(b) are shown below along with the Acoustic Associates results from the January 8

Report:

Allowable

nighttime Octave

Band Sound

Pressure Levels

(dB)

Octave Band Center

Frequency (Hertz)

Class C

to A

Land

Class

B to A

Land

Measured

Sound Levels

from LTD

Facility (dB)

Measured

Ambient

Noise Levels

(dB)

Estimated

Ambient

Noise Levels

(dB) - L

90

31.5

69

63

60

57

54

63

67

61

59

61

54

---

18

125

62

55

53

56

48

250

54

47

43

52

38

500

47

40

41

51

37

1000

41

35

40

55

37

2000

36

30

39

41

37

4000

32

25

31

39

22

8000

32

25

23

35

16

Nighttime hours are 10:00 p.m. to 7:00 a.m. 35 Ill. Adm. Code 900.101. LTD’s

facility is a property line noise source. A property line noise source is defined as:

any equipment or facility, or combination thereof, which operates within any

land used as specified by 35 Ill. Adm. Code 901.101. Such equipment or

facility, or combination thereof, must be capable of emitting sound beyond the

property line of the land on which operated. 35 Ill. Adm. Code 900.101.

The Board finds that LTD is a property line noise source. In addition, complainants’

properties are residential and thus Class A land. See 35 Ill. Adm. Code 901.101(a),

901.Appendix B. Complainants allege that LTD is Class B land. Tr. at 11. Complainants

want the Board to compare the noise from LTD using the Class B land to Class A land noise

limits. LTD asserts that it should be classified as Class C land. Tr. at 20, 79, 111, 193.

Generally, the numeric noise limits from a Class C land property line noise source are not as

strict as the limits from a Class B source.

The land use classifications in the Board’s regulations are derived from the Standard

Land Use Coding Manual (SLUCM) that categorizes land use according to Standard Industrial

Classification (SIC) codes. There was extensive discussion at hearing and several exhibits

introduced regarding LTD’s land use. Based on the information in the record, the Board finds

that LTD’s proper SIC code pursuant to the SLUCM is either 4921-4 (warehouse for a freight

forwarding service) or 4922-4 (warehouse for a packing and crating service). Both of these

SIC codes are classified as Class C land. See 35 Ill. Adm. Code Subtitle H, Appendix B. For

purposes of determining numeric noise violations of the Board’s regulations, the Board finds

that LTD is a Class C land property line noise source.

The noise levels that Acoustic Associates measured from LTD exceeded the Board’s

nighttime numeric noise limits at the 2000-Hertz frequency. The measured and estimated

ambient noise levels (in other words, the non-LTD noises) appear to be above the Board’s

nighttime numeric noise limits at several frequencies. However, the Board can determine a

violation only if Acoustic Associates performed the noise measurements and analysis in

accordance with the measurement protocols at 35 Ill. Adm. Code 900.103(b).

Measurement Protocols. The Board’s noise regulations at 35 Ill. Adm. Code 900.103

(b) specify detailed instrumentation requirements and measurement procedures for determining

whether emissions of sound comply with the Part 901 numeric limits.

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19

b)

Procedures Applicable only to 35 Ill. Adm. Code 901

All measurements and all measurement procedures to determine whether

emissions of sound comply with 35 Ill. Adm. Code 901 shall be in

substantial conformity with ANSI §1.6-1967, ANSI §1.4-1971 - Type I

Precision, ANSI §1.11-1966, and ANSI §1.13-1971 Field Method, and

shall with the exception of measurements to determine whether emissions

of sound comply with 35 Ill. Adm. Code 901.109, be based on Leq

averaging, as defined in 35 Ill. Adm. Code 900.101, using a reference

time of one hour. All such measurements and measurements procedures

shall correct or provide for the correction of such emissions for the

presence of ambient noise as defined in ANSI §1.13-1971.

As already stated, 35 Ill. Adm. Code 901.102(b) requires that the sound measurements be

taken at least 25 feet from the property-line-noise-source.

The Board finds that Acoustic Associates’ noise monitoring instrumentation is in

compliance with the requirements of Section 900.103(b). Harmon testified that he was familiar

with the Board’s noise measurement requirements. Tr. at 826-27. Further, Harmon stated

that while he did not refer specifically to the regulations, he noted that the monitoring was

intended to generate useful data. Tr. at 828. The Board also finds that the location of the

monitoring site meets the 25-foot requirement of 35 Ill. Adm. Code 901.102(b).

However, the noise monitoring did not comply with the Board requirements pertaining

to one-hour Leq averaging and correction for ambient noise. As noted above, Section

900.103(b) requires that the emissions of sound be based on Leq averaging using a reference

time of one hour. It appears that the sample chosen to determine the octave sound pressure

levels were averaged over a period of 54 minutes instead of one hour. See Res. Exh. 97,

Figure 3. While Thunder stated monitoring was conducted for a nominal one-hour period

suggesting that the time period was less than 60 minutes, the Board regulations are very clear

that sound levels must be averaged over 60 minutes.

In addition, Section 900.103 requires sound measurements to be corrected for ambient

noise. In this regard, Thunder admitted that correction for background noise could not be

made because the background noise from traffic on the tollway was above the numeric limits in

all octave bands. Res. Exh. 97 at 3. While Thunder estimated the ambient noise levels by

determining a L

90

spectrum, such estimated levels were not used to correct the measured sound

levels.

Strict adherence to the provisions of 35 Ill. Adm. Code 901.103 is necessary in order to

prove a violation of the Board’s numeric noise standards. See Discovery South Group, Ltd. v.

Pollution Control Board, 275 Ill. App. 3d. 547, 559, 656 N.E.2d 51, 59 (1st Dist. 1995). As

a result of the improper analysis of the nighttime noise measurements, the Board cannot find

that LTD violated the nighttime numeric noise limits at 35 Ill. Adm. Code 901.102(b).

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20

Nighttime Impulsive Noise Limits

The Board’s impulsive noise limits are at Section 901.104 which provides:

Except as elsewhere in this Part provided, no person shall cause or allow the

emission of impulsive sound from any property-line-noise-source located on any

Class A, B, or C land to any receiving Class A or B land which exceeds the

allowable A-weighted sound levels, measured with fast dynamic characteristic,

specified in the following table when measured at any point within such

receiving Class A or B land, provided, however, that no measurement of sound

levels shall be made less than 25 feet from such property-line-noise-source.

Classification of

Land on which

Property-Line

Noise-Source is

Located

Allowable A-weighted Sound Levels in Decibels of Impulsive

Sound Emitted to Receiving Class A or B Land

Class A Land

Class B Land

Daytime

Nighttime

Class A Land

50

50

45

Class B Land

57

50

45

Class C Land

61

56

46

Thunder measured impulsive sound and included these measurements in the January 8

Report. The impulse noise nighttime limit is 46 A-weighted decibels (dB(A)) for Class C land

sources, and 45 dB(A) for Class B land sources. Figure 4 of the January 8 Report shows that

LTD exceeded 46 dB(A) several times. Thunder measured the impulse noise limit using the

fast dynamic characteristic method. Thunder said that he and Zak discussed the January 8

Report after its release. Thunder testified that he told Zak that the proper way to measure

impulse sound was to use the one-hour Leq averaging method, not the fast dynamic

characteristic method. At hearing, Zak testified that the fast dynamic characteristic method

was the outdated method to measure impulse noise and that one-hour Leq averaging was the

appropriate method. Thunder testified that he reanalyzed his impulse noise measurements

using the one-hour Leq averaging method. He said that the reanalysis showed that the

impulsive noise coming from LTD did not violate the state impulsive noise limits. However,

Zak testified that Thunder did not use the one-hour Leq averaging method for measuring

impulsive noise. Tr. at 388-91, 1528-32; Comp. Exh. 19; Resp. Exh. 97 at Figures 3 and 4;

Resp. Br. at 11.

“Fast dynamic characteristic” was the old method of measuring impulsive noise and

should have been deleted from the Board’s rules in 1987. See 11 Ill. Reg. 3136-3139

(January 27, 1987); General Motors Corp. Proposed Amendments (January 22, 1987), R83-7.

However, the phrase was left in the rules and today can be found in the Board’s official copy

of the rules and on the Board’s Web site. The fast dynamic characteristic method directly

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21

conflicts with a provision in Section 900.103(b) which states that all Section 901 noise

measurements (including the measurements for impulsive noise at Section 901.104) should use

the one-hour Leq averaging method. Since there is a conflict in the rules, the Board will look

to its opinion in docket R83-7 where it held that the one-hour Leq averaging method “is the

most comprehensive measurement of community response to noise because it best combines

consideration of both steady state and time-variant noise”. The Board also held that fast

dynamic characteristic was not in conformance with American National Standards Institute

(ANSI) requirements.

Id.

at 17. Thus, the Board will recognize that impulse noise should be

measured according to the one-hour Leq averaging method.

The First District Appellate Court examined the issue of one-hour Leq averaging in

Discovery Group South. In that case, the Board found that the appellants were in violation of

the Board’s nuisance noise regulations and, as part of the remedy, ordered the appellants to

monitor noise from their site using a stricter Leq averaging time of not more than five minutes.

The appellate court upheld the remedy stating that it was within the scope of the Board’s

powers, was not a new rulemaking, and did not violate the appellant’s constitutional rights.

The appellate court stressed that the one-hour Leq averaging method was necessary to

determine a violation of the Board’s numeric noise standards, but the Board did not need to

follow it in fashioning a remedy. Discovery Group South, 275 Ill. App. 3d. at 557-60, 656

N.E.2d at 59-61.

An examination of the impulsive noise measurements reveals that Thunder did not

measure the impulse noise from LTD using one-hour Leq averaging. As previously stated,

Thunder measured A-weighted noise levels using 5-second Leq averaging, Leq averaging over

54 minutes, and the fast dynamic characteristic method. As the impulsive noise measurements

were not analyzed according to the one-hour Leq averaging method, the Board cannot find that

LTD violated the Board’s impulsive noise limits at 35 Ill. Adm. Code 901.104.

Exceptions to Numeric Noise Regulations

Although the Board finds that LTD has not violated any of the Board’s numeric noise

regulations, the Board chooses to address arguments regarding exceptions to the Board’s

numeric noise regulations.

LTD claimed that its trucking operations are exempt from the Board’s numeric noise

regulations. 35 Ill. Adm. Code 901.107(f) provides that “Sections 901.102 through 901.106

inclusive shall not apply to the operation of any vehicle registered for highway use while such

vehicle is being operated within any land used as specified by Section 901.101 in the course of

ingress to or egress from a highway.” All trucks arrive at LTD from Route 22 and Lakeside

Drive. The definition of highway at Section 900.101 includes any public road including

Lakeside Drive and Route 22. Voigt testified that all trucks except the yard tractor in LTD’s

parking lot are licensed. Tr. at 1154.

The Board finds Section 901.107(f) exempts noise from trucks as they enter or leave

Lakeside Drive. However, Section 901.107(f) does not exempt the trucks from complying

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with the Board’s noise regulations while they are at LTD’s loading docks and in the staging

area. Complainants did not strongly object to the noise of the trucks on Lakeside Drive; they

primarily objected to the noise of the trucks at the LTD docks and in the LTD staging area.

Complainants also correctly point out that 35 Ill. Adm. Code 901.107(f) only exempts trucks

from compliance with Board’s numeric noise regulations but not the nuisance noise provisions.

Reply Br. at 7-8.

LTD also raised the provision at 35 Ill. Adm. Code 901.107(b) that exempts

“emergency warning devices” and “unregulated safety valves” from the Board’s numeric noise

regulations. Respondent’s attorney wrote that the exemption for emergency warning devices

applies to backup warning devices and air horns, and the exemption for unregulated safety

valves could apply to the release of air from air brakes. Comp. Exh. 66 at 4. The Board has

held that backup warning devices such as the ones at issue herein are not exempt from the

Board’s numeric noise regulations because they are used routinely. Hoffman v. City of

Columbia, (October 17, 1996), 94-146, slip op. at 15 (Meyer concurring); Noise Pollution

Control Regulations, R72-2 slip op. at 30. The Board finds that the backup warning devices

and air horns (which are also used routinely) are not exempt from the Board’s numeric noise

regulations.

Nuisance Violation

The Board first discusses applicable law for nuisance noise. Second, the Board

determines whether noise from the trucking terminal has interfered with the residents’

enjoyment of life. Third, the Board determines whether any such interference was

unreasonable. Finally, the Board determines whether respondents have violated the

prohibitions on nuisance noise.

In summary, complainants allege that, as a result of the continuing noise from LTD,

they have been unable to sleep and enjoy quiet activities around the home. LTD alleges that it

is not the sole cause of the noise and that other noise sources, such as the tollway and the

garbage trucks at Corporate 100, are to blame. LTD claims that it has been responsive to

complainants’ concerns and points to its good neighbor program as an example.

Applicable Law

Complainants allege that respondents have violated Section 24 of the Act and 35 Ill.

Adm. Code 900.102. Section 24 provides:

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 (1998).

Section 900.102 of the Board’s regulations provides, in relevant part, that no person shall

cause or allow the emission of sound beyond the boundaries of his property “so as to cause

noise pollution in Illinois . . .” 35 Ill. Adm. Code 900.102. Noise pollution is defined as “the

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23

emission of sound that unreasonably interferes with the enjoyment of life or with any lawful

business or activity.” 35 Ill. Adm. Code 900.101.

Section 24 of the Act and Section 900.102 of the Board’s regulations constitute a

prohibition against nuisance noise. Zivoli v. Prospect Dive and Sport Shop, Ltd.

(March 14, 1991), PCB 89-205, slip op. at 8. The Board considers Section 33(c) of the Act to

determine if noise rises to the level of a nuisance or an unreasonable interference with the

enjoyment of life. See Hoffman v. City of Columbia, Illinois (October 17, 1996), PCB 94-

146, slip op. at 2.

Section 33(c) of the Act provides:

In 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:

(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, discharges or deposits resulting from such

pollution source; and

(v)

any subsequent compliance.

Interference with the Enjoyment of Life

In any nuisance noise enforcement proceeding, the Board must address the threshold

issue of whether or not the noise from respondent’s property has interfered with complaints’

enjoyment of life. See Furlan v. University of Illinois School of Medicine (October 3, 1996),

PCB 93-15, slip op. at 4. The noise must objectively affect enjoyment of life if the noise is to

be considered interference. See Hoffman, PCB 94-146, slip op. at 15-16

;

Zivoli

, PCB 89-205,

slip op. at 9. The noise from LTD made it difficult for complainants to fall asleep and awoke

them from sleep. It disrupted the complainants while they read, studied, and worked. It also

disrupted complainants from enjoying quiet activities in the home. Complainants could not

open windows, and the Webers could not enjoy their outdoor deck during the late summer and

fall. Some of the complainants’ children were disturbed by the noise. The Board has held that

such disruptions from noise are an interference with the enjoyment of life.

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24

The Board finds that the noise from LTD’s facility has interfered with complainants’

enjoyment of life. See Charter Hall Homeowner’s Association v. Overland Transportation

System, Inc. (October 1, 1998), PCB 98-81, slip op. at 20 (trucking operations interfered with

sleep, complainants could not open windows); Thomas v. Carry Companies of Illinois

(August 5, 1993), PCB 91-195, slip op. at 13, 15 (trucking operations interfering with sleep);

Hoffman, PCB 94-146, slip op. at 5-6, 17 (noise interfering with sleep and use of yard); Curtis

v. Material Service Corporation (April 18, 1993) PCB 91-30, slip op. at 13-14 (noise

interfered with sleeping, studying, and had an adverse affect on children).

There is some evidence in the record that complainants are bothered by ambient noise.

Some of the complainants have heard trucks picking up garbage at Corporate 100, but the

trucks only come once per day and take five minutes to make the stop. Reply Br. at 10-11.

Voigt testified that LTD disconnected the backup warning device on the yard tractor

from 3:00 a.m. on Nov 2, 1999, until 6:00 a.m. on November 4, 1999. Tr. at 1153.

Rosenstrock testified that he heard the backup warning device at LTD on the morning of

November 3 at about 7:00 a.m. Karen Roti testified that she heard beeping noises “faintly”

during the night of November 2-November 3 but did not hear it on the morning of November

3. Tr. at 622-23, 649-50 741-42. Respondents point out that this is evidence that

complainants could not distinguish between noise from backup warning devices at LTD and

backup warning devices at Corporate 100. Resp. Br. at 8-9. The complainants alleged that

respondents were trying to trick them. Tr. at 636-49. Complainants also pointed out that

although the yard tractor backup warning device was disconnected, overland trucks in the

staging area might have been sounding their backup warning devices. Tr. at 1096-1100; Reply

Br. at 9.

The Board finds that ambient noise interfered somewhat in complainant’s lives.

However, the ambient noise interference does not diminish the fact that the noise from LTD

interfered with complainant’s lives. The Board finds that the interference from the LTD noise

is much more substantial than the interference from ambient sources.

Unreasonable Interference with the Enjoyment of Life. The Board must also address

whether noise from LTD has unreasonably interfered with complainants’ enjoyment of life.

The Board examines the criteria at Section 33(c) of the Act to determine if the interference is

unreasonable. In proving the unreasonableness of the interference, complainants are not

required to introduce evidence on each of the Section 33(c) factors and the Board may still find

the interference unreasonable even if it does not find against respondents on every factor. See

Wells Manufacturing Company v. Pollution Control Board, 73 Ill. 2d 226, 233, 383 N.E.2d

148, 151 (1978)

;

Processing and Books, Inc. v. Pollution Control Board, 64 Ill. 2d 68, 75-77,

351 N.E.2d 865, 869 (1976). The Board will now analyze the 33(c) factors.

The Character and Degree of Injury to, or Interference with the Protection of the

Health, General Welfare and Physical Property of the People.

To assess the character and

degree of interference that LTD has caused, the Board must determine if the noise

“substantially and frequently interferes” with the enjoyment of life “beyond minor or trifling

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annoyance or discomfort.” Kvatsak v. St. Michael’s Lutheran Church (August 30, 1990),

PCB 89-182, slip op. at 9.

Complainants testified that the nighttime noise from LTD’s operations disrupted their

lives every year from 1996 through 1999 starting in early autumn and continuing through mid-

December. Complainants were disturbed by the noise every night from Monday through

Friday during those months. Complainants testified that the noise would sometimes continue

late into the night and continue until 3:00 a.m. LTD officials testified that the second shift

sometimes lasted until 2:30 a.m. Rosenstrock claimed that he heard noises 24 hours a day, but

LTD officials claimed that they never operated around the clock. Rosenstrock also testified

that his house often shook as a result of the loud noises from operations at LTD. LTD

officials did not rebut the testimony regarding shaking.

During those months complainants testified that they were irritable from lack of sleep

and that their children had problems such as waking up for school on time. Karen Roti

testified that she had to use prescription drugs or alcohol on certain nights in order to get to

sleep.

Rosenstrock kept a log for a week of the noises from LTD and the times when his

house shook. Entries in the log demonstrate that the noise from LTD lasted through the early

evening hours into the late evening and early morning hours. Although Rosenstrock kept the

log for only a week, he testified that it was representative of the noise coming from LTD

during the autumn each year.

In his deposition, Schomer discussed low frequency noise that may not rise to the level

of violating the Board’s noise regulations but causes window rattling and objects to move in a

home. The level of annoyance from such noise is equivalent to a higher pitched noise that is

10 to 20 dBs louder. Comp. Exh. 65 at 61-62, 83-84. The Board has recognized that noise

which causes residential vibrations is a relevant factor in determining substantial interference

with a complainant’s life. Pawlowski v. Johansen (April 6, 2000), PCB 99-82, slip op. at 4,

8; Tex v. Coggeshall (October 23, 1992), PCB 90-82, slip op. at 13, 15.

The Board has found that Acoustic Associates’ noise measurements and analysis may

not be used to prove a violation of the Board’s numeric noise limits. However, it is necessary

to strictly follow the measurement procedures at 35 Ill. Adm. Code 900.103 only when

proving an allegation of a numeric noise violation. Discovery South Group, 275 Ill. App. 3d

at 559, 656 N.E.2d at 59. The Board may take note of these measurements in order to

substantiate alleged violations of the Board’s nuisance noise standards. Dettlaff v. Boado

(July 1, 1993), PCB 92-26, slip op. at 7-9. The measurements that Harmon took on September

23 and 24, 1997, demonstrated that noises from LTD were frequent and extended well into the

early morning hours. See Resp. Exh. 97. Voigt testified that the evening / early morning of

September 23-24, 1997, was typical. Thus, the noise that Harmon recorded that night would

indicate that such noises were common on many other nights during the autumns of 1996

through 1999.

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The Rotis listed their house with realtors on two occasions, once in 1995 and once in

1996. The Board might find this as a factor in the analysis of the unreasonableness of the

interference from LTD. However, it is not clear from the record if moving away from the

LTD noise was a factor in the Rotis’ decision to list their house.

The Board recognizes that there are variations among complainants’ versions of the

interference that they attributed to the operations at LTD. Zak testified that reasonable people

would complain about the LTD noise, but that each person in complainants’ various residences

might be disturbed differently. Tr. at 346, 371. The Board may find an unreasonable

interference even though there are variations in the way that each complainant is affected by

the noise. Discovery South Group, 275 Ill. App. 3d at 554-55, 656 N.E.2d at 57; Hoffman,

PCB 94-146, slip op. at 17.

The Board finds that the character and degree of interference from the noise LTD’s

operations has been substantial and frequent. It weighs this factor against LTD.

The Social and Economic Value of the Pollution Source.

The Illinois Supreme Court

has determined that the number of persons that respondent employs and respondent’s

prominence in a particular market are relevant to the analysis of this factor. Wells

Manufacturing Company, 73 Ill. 2d at 235-36, 383 N.E.2d at 152. The Board has determined

that the numbers of employees and the total wages and taxes paid are relevant. Arendovich v.

Koppers Company, Inc. (February 8, 1990), PCB 88-127, slip op. at 6.

LTD normally employs 600 people at its Bannockburn facility, and during the late

August to mid-December period it employs between 1,200 and 1,300 people. In 1999, LTD

paid just over $300,000 in real estate taxes. Also, Kracower estimates that 60% to 70% of that

total goes local schools, including Deerfield High School and the Bannockburn Elementary

School District. Furthermore, LTD, like other businesses, may not add any pupils to those

school districts. Tr. at 1419-20, 1423.

There was no information in the record about the prominence of LTD in the toy or

clothing market. Nevertheless, the Board finds that the LTD facility has social and economic

value and weighs this factor in favor of LTD.

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.

Priority of

location is one aspect of suitability, but it is not the sole factor that the Board examines in

making a finding for this factor. Oltman v. Cowan (November 21, 1996), PCB 96-185, slip

op. at 3, 5.

The Board notes that FMC built the first section of the current LTD warehouse facility

in 1976 or 1977 and that LTD has been the owner of the property since 1986. The Board also

notes that complainants all moved into their homes between August 1990 and January of 1992.

LTD clearly has priority of location.

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Alan Kracower described the land use zoning adjacent to the tollway in Bannockburn as

nonresidential. He described Bannockburn as having a buffer of commercial land uses between

the tollway and residential areas to the east. Tr. at 1402-03. Kracower noted that there is no

buffer between the residential area of Lake Forest where complainants live, the tollway, and

the commercial area of Bannockburn where LTD is. Tr. at 1406-07. Kracower also said that

LTD is well suited to the intersection of Route 22 and the tollway because the intersection

provides “reasonable and rapid access to major arterial roads or highways” without cutting

through residential areas. Tr. at 1404. Zak also testified that LTD is well suited for its

location because it is next to the tollway, making it easy to move merchandise. Tr. at 432,

449. The Board recognizes that LTD is in a commercially zoned district. LTD’s trucking

operation is well suited to its location at the intersection of the tollway and Route 22.

In addressing this factor, the Illinois Supreme Court has found that

industry cannot, of course, substantially increase its…emissions and

simultaneously rely on its priority of location in the area as a mitigating factor.

This sort of changed circumstance would…undermine the industry’s priority-of-

location argument. Wells Manufacturing Company, 73 Ill. 2d at 237, 383

N.E.2d at 152.

LTD doubled the size of its facility and added offices during 1994 and 1995. Karen

Roti testified that she heard noise from LTD prior to 1995 but that it was not disruptive.

Complainants’ were not disturbed by nighttime noise from LTD until one to two years after the

expansion.

The Board finds that complainants knew about LTD’s facility when they moved into

their homes. However, the Board finds that LTD substantially increased its activities after

complainants had moved into their nearby homes. LTD cannot rely on priority of location as a

mitigating factor. The Board finds that LTD’s facility, as it is currently operated, is unsuitable

to the area involved and weighs this factor against LTD.

The Technical Practicability and Economic Reasonableness of Reducing or Eliminating

the Emissions, Discharges or Deposits Resulting from Such Pollution Source.

The Board must

examine the record to determine if LTD could have employed readily available, practical, and

reasonable means to reduce or eliminate noise emissions. Incinerator, Inc. v. Pollution

Control Board, 59 Ill. 2d 290, 298-299, 319 N.E.2d 794, 798 (1974); Scarpino v. Henry Pratt

Company (April 3, 1997), PCB 96-110, slip op. at 20.

There was no evidence presented at hearing regarding the value of LTD’s sales or

LTD’s profits. However the Board takes note of the fact that LTD paid $6.6 million for the

Bannockburn facility in the 1980s, between $1.5 and $2 million for its first warehouse

expansion, and a total of $9.9 million for acquiring property and constructing its second

expansion.

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Noise Wall.

A great deal of testimony was presented on the construction of a noise

wall. LTD hired consultants and conducted an in-depth study of constructing a noise wall

along the northern boundary of its staging area and just south of LTD’s north parking lot. In

its final proposal, Huff submitted a proposal to LTD for a $300,000 steel noise wall that would

run 682 feet in length and stand 14 feet high. Huff also submitted proposals for a slightly

shorter (both in height and length) wall at slightly discounted prices, but no evidence was

submitted regarding any reduced effectiveness of such options.

Mitchell claims that the Huff noise wall will reduce migration of noise from LTD’s

truck staging area to the complainants’ homes. Tr. at 1145. Thunder admitted to

complainants’ counsel that the proposed wall, if constructed well, would reduce noise from the

staging area to complainants’ homes. Thunder also admitted that he had recommended similar

walls to block noises from other trucking operations. Tr. at 1543-45, 1604-05.

Thunder, Mitchell, and Zak point testified the proposed wall would have no affect on

ambient noise. Tr. at 243-45, 247, 397, 411, 1536-37, 1540-43. However, the Board finds

that the interference from ambient noise sources is slight compared to the interference from

LTD, so the proposed noise wall need not block ambient noises to be effective.

Mitchell testified that he has installed noise walls in the past. These walls have

satisfied “EPA limits”, but people still objected to the noise. Tr. at 248-49. Thunder could

not guarantee that the proposed noise wall would work, and he cited the trucks in the staging

area, trees, and landmarks that might cause reverberations of sound to unexpected areas. Tr.

at 1591, 1605. In his deposition, Schomer said that a well-built noise wall just north of LTD’s

dock area would prevent noise from reaching complainants’ homes, but he could not guarantee

that the wall would stop complaints about the noise from trucking operations at LTD. Comp.

Exh. 65 at 72, 78, 132, 134-35, 145. Likewise, Zak could not guarantee that the proposed

noise wall would work. Tr. at 414.

Mitchell said that a wood wall could be cheaper but would not work. Wood does not

have the same transmission loss as steel and does not absorb sound as well. He also said that it

is more difficult to guarantee good results with wood. Tr. at 236-37.

Based on “Thunder’s report”, Zak testified that the noise wall proposed by Huff would

“largely solve” the nuisance problem, provided that LTD conducted its activities so as to

reduce noise. (It is not clear if Zak is referring to the January 8 Report.) Tr. at 346-47, 402.

Zak testified that it is technologically feasible and economically reasonable for LTD to build

the proposed $300,000 noise reduction wall. Tr. at 14, 347-48, 432. Zak states that a wood

wall would work as well as the $300,000 steel wall as long as the wood wall had acoustically

absorptive material on the LTD side such as fiberglass. Wood walls require periodic

maintenance, but steel walls last well over 20 years. Tr. at 349-50.

Schomer, in a March 16, 1998 letter to Lothspeich, said that the “simplest means to

reduce the noise impact is to install noise mitigating structures like barriers and to install sound

absorbing materials and/or to eliminate nighttime operations…” Tr. at 135-36, 1132; Comp.

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Exh. 30. In his deposition, Schomer said that the Huff Company has a very good reputation

and that paying $42 per square foot would enable LTD to purchase “the Cadillac of walls.”

Comp. Exh. 65 at 78.

In the past, the Board has ordered the noise walls and acoustical barriers be built on a

case-by-case basis. The Board looks to the facts in each case to determine if a noise wall is a

necessary remedy. The Board ordered the construction of an $18,000 sound barrier as a third

option if two other options did not produce the desired results. The Board subsequently

dropped its demand for the sound barrier once other noise control measures were proposed.

Zarlenga v. Partnership Concepts (February 27, 1992), PCB 89-169, slip op. at 8-9; Zarlenga

(July 30, 1992), PCB 89-169. A few months later, the Board considered an option to require a

respondent to construct a ten to twenty-foot tall by 200-foot long barrier wall with a cost of

$20,000. The Board noted that the respondent would incur considerable costs for this option

and instead required that that the respondent undertake other noise reduction measures.

Madoux v. Straders Logging and Lumber Mill (November 19, 1992), PCB 90-149, slip op. at

2, 6. In another case, the Board found that the construction of two barrier walls at a cost of

$20,000 was the most economically reasonable and technically feasible of several proposed

noise reduction remedies. Tex (June 17, 1993), PCB 90-182, slip op. at 4, 6-7. About a year

later, the Board found that construction of a barrier fence (estimated cost between $16,000 and

$55,000) was the most economically reasonable and technically feasible of all the noise control

options presented. Thomas (May 19, 1994), PCB 91-195, slip op. at 2-3. In Hoffman the

Board found that construction of an acoustical barrier (estimated cost between $12,000 and

$57,000) was unwarranted because it found that respondent had not violated any of the Board’s

numerical noise standards. Hoffman, PCB 94-146, slip op. at 20-21. More recently, the

Board ordered a respondent trucking terminal to construct an airtight, one-inch thick, 22-foot

tall wooden or brick barrier around the entire northern, western, and southern perimeter of its

facility. Charter Hall, (May 6, 1999), PCB 98-81, slip op. at 5-6, 9. At the hearing in

Charter Hall, Zak estimated that a noise barrier would cost the respondent anywhere from $50

to $100 per linear foot. The Board found that construction of the barrier was technically

feasible and economically reasonable. Charter Hall (October 1, 1998), PCB 98-81, slip op. at

14, 24-25. Furthermore, the Board ordered the barrier built even though it found no violation

of the numeric noise limits.

The Board recognizes that the $300,000 estimate for the noise wall herein is a

significant sum. In Hoffman, the Board held that the $150,000 cost of relocating the

respondent’s municipal maintenance facility was not “economically reasonable considering the

type of interference and the alternative control options.” Hoffman, PCB 94-146, slip op. at

19.

The Board recognizes that there is no guarantee that a noise wall would prevent noise to

the extent that complainants would be completely free of unreasonable interference from

LTD’s operations. The Board finds that the proposed noise wall would likely prevent much of

the migration of noise from LTD’s docks and staging area to complainants’ homes. However,

the Board is hesitant to find that the noise wall proposed by Huff is economically reasonable if

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30

another less expensive noise wall would be just as effective, such as the wood / fiberglass wall

that Zak mentioned.

Thunder suggested that LTD could construct a dome and or parking garage as noise

barriers, but these options would be more expensive than a wall.

Other Measures

. Schomer suggested construction of a berm as a noise control

measure, but it does not appear that there is enough space for a berm between the LTD parking

lot and complainants properties.

Complainants suggested that LTD limit its operations to daytime hours. However,

Hara stated that restricting business during nighttime hours would eliminate half the jobs at

LTD, and would “destroy” LTD because the company would not have the capacity to ship its

orders prior to and during the Christmas season.

Rosenstrock suggested that LTD could have halted the practice of backing trucks

directly against the bumpers along the north wall of the staging area. Rosenstrock cited the

noise and vibrations from the contact of the trucks and the bumpers as a major source of

irritation. Other experts said that the bumpers along the north wall should be improved to

minimize noise, but Zak testified that the bumpers are well designed. Tr. at 367.

Thunder also suggested that LTD could have hired a dock pilot to patrol the docks and

staging areas to ensure that LTD employees and truckers were being as quiet as possible.

Finding.

The Board finds that eliminating LTD’s nighttime operations would not be

economically reasonable, and that building a berm would not be technically feasible. The

Board will not, at this point, determine if constructing the proposed noise wall would have

been economically reasonable. However, the Board finds that it would have been technically

practicable and economically reasonable for LTD to hire a dock pilot or more than one dock

pilot. The dock pilot could have patrolled the docks and staging area to ensure that truckers

and LTD employees were as quiet as possible. The dock pilot also could have guided trucks in

the staging area in order to prevent those trucks from contacting the north wall bumpers at high

rates of speed. The Board weighs this factor against LTD.

Any Subsequent Compliance.

Under this factor, the Board determines if LTD has

subsequently come into compliance with any provisions of the Act or the Board’s regulations

that it allegedly violated. See Manarchy v. JJJ Associates, Inc. d/b/a The Gotham Nightclub

(July 18, 1996), PCB 95-73, slip op. at 13.

The Board finds that LTD has employed several measures in an effort to reduce noise.

LTD’s “Good Neighbor Policy” is a program to encourage truckers on LTD’s property to

keep noise to a minimum. LTD officials also stationed security guards to prevent trucks from

entering the parking lot near complainants homes, required truck doors to be hitched in an

open position to prevent swinging and banging, repaired dock levelers to prevent them from

clanging against truck dock walls, and secured a quieter yard tractor. LTD repaired its dock

levelers in order to reduce the noise that they make when trucks pull away. LTD also switched

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31

some of its operations to its new Aurora facility, but is not clear if they did this for business

reasons or to reduce noise from the Bannockburn facility. Voigt testified that LTD requested

that truckers raise the legs on trailers in order to reduce the distance that trailer would be

raised/dropped during uncoupling/coupling procedures, but there were concerns about

improper connections that could have resulted in more noise. LTD also disconnected the

backup waning device on the yard tractor for a short time. However, concerns about a lack of

safety and resulting liability in the event of an accident led LTD to reconnect them. The

backup warning device on the yard tractor was also disconnected for a brief period during the

November 1999 hearings but was soon reconnected.

LTD’s efforts, especially securing the quieter yard tractor, diminished complainants’

concerns about the noise somewhat. However, despite LTD’s efforts, the noise problem was

ongoing as of the time of hearing. The Board weighs this factor against LTD.

Determination of Violation

After examining the Section 33(c) factors, the Board can only weigh the factor on social

and economic value in favor of LTD. The Board finds that the degree of interference in

complainants’ lives as a result of the noise from LTD is substantial and frequent, that LTD’s

current operations are unsuitable to its location, that there are technically reasonable and

economically feasible means of reducing the noise which LTD has not yet implemented, and

that LTD continues its noncompliance with the Act and the Board’s regulations. The Board

finds that the interference is caused by trucks and the yard tractor engaging and disengaging

with trailers, trailers backing into the bumpers along the north wall, and air horns on trucks,

among other activities. These noise sources all occur in the dock and staging areas at LTD.

The Board finds that LTD has violated the Section 24 of the Act and 35 Ill. Adm. Code

900.102.

REMEDIES

Although the record contains testimony and exhibits on remedies for the noise coming

from LTD, the Board will order the parties back to hearing in order to further discuss

remedies.

Backup Warning Devices

Thunder testified that LTD could have employed observers for guiding trucks around

the staging area as opposed to using backup warning devices. Tr. at 1535-36. Zak testified

that OSHA regulations require that vehicles with obstructed rear views use either backup

warning devices or an observer. Tr. at 276-277. The Board acknowledges Zak’s testimony on

this point and finds that it is based on OSHA regulations at 29 C.F.R. § 1926.601(b)(4) which

provide that:

(4)

No employer shall use any motor vehicle equipment having an obstructed

view to the rear unless:

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(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.

The Board has found that a hiring a dock pilot would be a technically feasible and

economically reasonable means of ensuring that the activities in the docks and staging area are

quiet and that collisions between trucks and bumpers along the north wall of the staging area

are minimized. Dock pilots could also supervise the backing up of trucks in the docks and

staging area. However, the Board is concerned about the safety of the dock pilot(s) if it were

to order that the backup warning device on the yard tractor be disconnected. The Board orders

that both parties further address this issue at hearing, including related safety issues such as

adequate lighting in the docks and staging area.

Noise Wall

The Board wants more information on any type of noise walls that are less expensive

but would be just as effective as the noise wall that Huff proposed. For example, it is not clear

if a wood and fiberglass noise wall will provide the same amount of relief.

The Board notes that there is ambivalence on the part of several of the experts

regarding the effectiveness of noise walls in reducing noise. The Board will not order the

construction of a noise wall if it would not be effective.

Acoustically Absorptive Materials

Thunder and Schomer suggested LTD install acoustically absorptive materials on

LTD’s north walls, and possibly even the staging area walls, to reduce the reflection of sound

towards complainants’ properties. The Board has previously found that this option is

technically practicable and economically reasonable. See Charter Hall (October 1, 1998), PCB

98-81, slip op. at 14, 24-25.

The Board finds that the record in this matter lacks sufficient information on this

remedy. For example, there is no information on what type of acoustically absorptive material

would be most effective, and there is no information on the cost of materials and installation.

It is also unclear if it is sufficient for LTD to install the material on the north wall of its facility

or if the material should also be installed on the walls of the staging area.

Other Remedies

The Board will not limit the hearing solely to backup warning devices, a noise wall,

and acoustically absorptive materials. For example, Thunder suggested installing rubber in the

trucking docks but then said that this requires a great deal of maintenance.

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The parties are encouraged to introduce evidence on remedies that have not yet been

discussed and introduce new testimony on remedies that have been discussed. The parties may

also address civil penalties.

CONCLUSION

The Board finds that LTD has violated the nuisance noise provisions of the Act and the

Board’s regulations. 415 ILCS 5/24 (1998); 35 Ill. Adm. Code 900.102. The Board finds that

LTD has not violated the Board’s numeric noise limits at 35 Ill. Adm. Code 901.102(a),

901.102(b), and 901.104. In order to further address appropriate remedies, the Board orders

this matter to hearing on an expedited basis, consistent with the Board’s resources. The Board

notes that LTD’s busy season will likely begin again in August 2001. The parties are

encouraged to conduct the hearing well in advance of August 2001.

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

this matter.

ORDER

1.

The Board finds that LTD has violated the nuisance noise prohibitions of the

Act at 415 ILCS 5/24 (1998) and the nuisance noise regulations of the Board’s

regulations at 35 Ill. Adm. Code 900.102.

2.

The Board finds that LTD has not violated the Board’s numeric noise limits at

35 Ill. Adm. Code 901.102(a), 901.102(b), and 901.104.

3.

The Board orders this matter to hearing on an expedited basis, consistent with

the Board’s resources, to further address appropriate remedies.

IT IS SO ORDERED.

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

the above interim opinion and order was adopted on the 15th day of February 2001 by a vote

of 7-0.

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board