ILLINOIS POLLUTION CONTROL BOARD
August
5,
1993
SCOTT
AND
KAREN THOMAS
Complainants,
PCB 91—195
v.
)
(Enforcement)
CARRY COMPANIES OF ILLINOIS
)
)
Respondents.
ROBERT P.
ZAPINSKI
AND
CAREY S. ROSEMARIN APPEARED ON BEHALF OF
THE COMPLAINANTS;
ARLENE
R.
HAAS AND
LAURA L.
LEONARD APPEARED ON BEHALF OF
RESPONDENTS.
INTERIM OPINION
AND
ORDER
OF
THE
BOARD
(by M. Nardulli):
This matter comes before the Board on a complaint filed by
Karen and Scott Thomas
(Thomases)
on October 16,
1991.
The
complaint alleges that noise and air pollution are generated from
operations conducted on Carry Companies’
(Carry or Respondent)
property.
The complaint alleges violations of Sections 9(a),
23
and 24 of the Environmental Protection Act
(Act) (415 ILCS 5/9(a),
23 and 24
(1992)).
Hearings were held on September
1,
1992,
and
September 22,
1992,
in Decatur,
Illinois.
The Thomases submitted
their final brief on October 13,
1992.
The respondents presented
their final
brief on October
9,
1992.
On October 28,
1992,
the
Thomases filed their reply brief.
On October 27,
1992,
respondent filed its reply brief.
Complainants allege that the noise and dust generated by
respondent’s truck wash and parking facility unreasonably
interferes with their enjoyment of life and property.
Specifically, they complain of noise from the washing and drying
of tanker trailers, the start-up and idling of trucks and the
hooking and unhooking of tractors and trailers.
BACKGROUND
During the pertinent times of this matter, Karen Thomas was
in graduate school at Illinois State University working towards a
master of arts in English degree.
(Transcript at 99_100.)1
Scott Thomas was a materials engineer for Caterpillar
Corporation.
(Tr. at
17.)
The Thomases bought their present home
in Decatur,
Illinois,
in December of 1989.
Their property abuts
Carry’s facility on the Thomases’ southern property line (Carry
1
Hereinafter
the
transcript
shall
be
cited
as
“(Pr.
at
)
.
2
Company’s northern property line).
(Tr. at 20.)
In addition to
the family home,
there is
a screened-in porch,
a raised deck and
an above—ground pool located on the Thomases’ property.
There
are also several trees and bushes in the back yard.
(Tr.
at 19.)
Prior to Carry acquiring the property,
two trucking
companies occupied the site and ran a 24—hour—a—day operation.
(Tr. at 401—3,
405—6,
and 494-5.)
Carry is located in an area
that is zoned “light industrial”.
(Respondent’s Exhibit Nos.
5,
6, and 7.)
Properties to the immediate south and to the west
also contain trucking park and wash terminals and construction
companies.
(Tr.
at 354,
394, and 397.)
Carry is a specialized food hauling service which operates
out of ten truck terminals located predominately in the Midwest.
One such operation is located in Decatur,
Illinois, and is the
subject of this dispute.
Carry’s fleet includes approximately
300 tractors and 650 trailers.
(Pr. at 344.)
The bulk of
Carry’s fleet consists of liquid tankers and pneumatic
(or dry
bulk) tankers.
Carry has developed a niche within the hauling
industry as a hauler of water soluble food grade materials.
Carry conducts a trailer washing and drying operation at the
Decatur facility.
(Tr.
at 343—345.)
Carry purchased the Decatur terminal in approximately July
1990.
At the time of purchase, the property contained
a building
with offices,
a maintenance bay and two truck wash bays,
located
at the southern end of the property.
(Tr.
at 399-400.)
In May,
1991, Carry laid gravel at the northernmost 60 feet of its
property.
This gravel area reaches almost to the property line
shared with the Thoinases.
(Tr.
at 27.)
HEARING TESTIMONY CONCERNING NOISE
The hearing in this matter took place over two days in
September of 1992.
At the hearing Scott Thomas, Karen Thomas,
Gregory Zak and Debbie Hoffert testified for complainants.
George VanDenend, Bobby Bradham, Joseph Stolte and Judy
Bruminerstedt testified for respondents.
During 1990,
Mr. Thomas observed only occasional truck
movement and was not affected by any activity on the Carry
property.
(Tr.
at 22-23.)
In the Fall of 1990,
Mr. Thomas
noticed the number of trucks using the facility had increased
since the time they bought their home.
(Tr.
at 24-25.)
Mr.
Thomas testified that in the spring of 1991, the grassy patch of
land at the northernmost portion of the Carry property was
bulldozed and gravel was laid on the area.
After the gravel was
laid,
trucks began to park right up to the fence at the property
line.
(Tr.
at 28-29.)
Mr. Thomas testified that at that time he
first began to hear the moving and parking of the trucks on the
3
northern end of the Carry’s property,
as well as the idling of
trucks.
(Tr.
at 30-31.)
Mr. Thomas testified that he and his wife could hear the
truck tires on the gravel, the gears changing and a “large
whooshing” of the brakes.
(Tr. at 35.)
He described the engine
noise as the “most intrusive”.
(u.)
He testified that the
engine noises are most intrusive when the trucks are in the
northern lot,
but it is also possible to hear the trucks when
they are
in the southern lot.
(Tr.
at 33 and 34.)
Mr. Thomas testified that the truck washing noise lasts
anywhere from five to forty—five minutes.
Mr. Thomas stated that
the noise of the truck washer is “incredibly loud”; he stated
that it was similar to being on the tarmac of a runaway when a
jet is whining.
(Tr. at 40.)
In addition, Mr. Thomas testified
that “the whining of the washer penetrates the air,
a high
pitched loud whining can rattle the china
in our house.
It will
rattle my coffee cup on the end table
...
a very high pitched
vibration can rattle the shower door in our house”.
(Tr. at 41.)
He stated that he and his wife can hear the washer noises from
anywhere on their property but the noise is the greatest when
they are in their backyard.
(Tr.
at 42.)
Mr. Thomas testified
that it is hard for the Thomases to enjoy and relax
in their
backyard and has impeded their ability to have a normal
conversation there.
(Pr. at
50.)
The noises from the Carry property interfere with Mr.
Thomases’ ability to relax four or five times a week and wakes
him up three or four times
a week.
(Tr. at 51.)
There is no
place in the Thomases’ house where they do not hear the truck
noises.
(Tr. at 52.)
Mr. Thomas stated that the noises from the
other industrial properties located to the west of the Carry
property are “non-intrusive” and do not disrupt or disturb his
life.
(Pr.
at 33 and 34.~)
Concerning the effect the noise has on their
lives,
Mr.
Thomas testified
We cannot relax on
(sic)
our own home.
We cannot do
anything in our home without the noise or the threat of
noise interfering.
We cannot sleep on our bed at
night, we cannot read the paper on the backporch, we
cannot read the paper in the front room with the
windows open..
.
.We cannot in general use our house for
what we purchased it to use it for because it’s so
intrusive.
The noise not only makes
it very difficult
to get a good night’s sleep but can affect me at work
the next day
if I’m tired.
(Tr. at 45
—
46.)
4
Mr. Thomas believes the noise has increased in the past year
but concedes that the noise is somewhat reduced by the closing of
the garage doors.
The Thomases have seen Carry close the doors
“very little of the time.”
(Pr. at 54.)
Mr. Thomas testified
that the washing operation alone disturbs his wife and him five
to eight times a week.
(Pr.
at 58.)
Mr. Thomas stated that he and his wife had cancelled social
activities because of the noise; however at the deposition he
stated “I don’t believe that we’ve ever canceled those activities
before we had planned them because of that.”
(Tr. at 84-85.)
Also at the deposition, Mr. Thomas stated “w)e
don’t notice
truck noise on the side drive or the front of the building as far
as
I know.”
This contradicts his testimony at hearing where he
complained of the noise from the trucks parked in the southern
lot.
(Pr. at 33,
34 and 95.)
Mr. Thomas testified that before purchasing the house,
the
Thomases did not drive around the area where the house is
located, but they did walk around the backyard.
They thought the
business located behind the house was
a truck parking lot.
Mr.
Thomas believes they paid a reasonable price for their house and
believes that the expanded parking lot has devalued their
property.
(Pr.
at 70-73.)
On June 27,
1991,
Mr. Thomas wrote Carry and suggested that
the Thomases would stop their complaints
if Carry would pay them
$5,000
(or $3,000 with tree planting).
(Pr.
a~t76.)
Mr. Thomas
stated that he arrived at the $5,000 figure because under
Caterpillar’s compensation policy,
$5,000 was the maximum amount
of money they would lose if they could not sell the house for
what they paid for
it.
(Tr.
at 89.)
Mr.
Thomas characterized the
letter as
a means to settle the problem.
(Pr. at 89—90.)
In his
correspondence and meetings with Carry,
Mr. Thomas emphasized the
devaluation of his property.
(Pr.
at 79.)
Mr. Thomas stated
that since the time he wrote the letter, the noise has
increased.
(Pr.
at 89—90.)
Mrs. Thomas described the engaging and disengaging of cabs
and trailers as “an incredible slamming, banging noise of metal
against metal.
It’s more so than taking a hammer and hitting a
piece of metal.
It’s just an intense explosive crash.
It sounds
like a car accident.”
She testified that she also hears the air
brakes and air horns from trucks parked
in the gravel lot.
(Tr.
at
126.)
Mrs. Thomas estimated the truck fleet increased from
ten trucks in the winter of 1991 to a fleet of 40 to 45 trucks in
the summer of
1991.
In addition, the use of the newly graveled
area increased greatly.
(Tr.
at 112-113.)
Mrs. Thomas has observed trucks in the wash building at the
same time she heard noise from the washing and drying operation.
She
is certain the noise comes from Carry.
Mrs. Thomas described
5
the noise
as a “high pitched whirring noise that circles and
circles and drops down in on top of this low reverberating hum
and then this high pitch scream just circles and circles...~t
(Tr.
at
127)
Mrs. Thomas stated the washing noise
is only
slightly less loud when the doors to the washing building are
closed.
(Pr. at 129.)
Mrs. Thomas can hear the noises from Carry anywhere in her
home,
including her front yard.
She stated she can hear the
noise when she is in the shower with the water running.
She
testified that the most successful way to minimize the noise
is
to keep the doors and windows shut and run the air conditioner.
However, even with these measures she
is still bothered by the
noise.
Mrs. Thomas testified that the noise is greatest in the
summer and spring and on Friday nights to Saturday afternoons.
(Pr.
at 130—133.)
Mrs. Thomas has been awakened at all hours of the night on
every night of the week.
She testified that she
is awakened by
the noise from Carry on an average of four to five times a week
and that applies to the summer of 1992 as well as 1991.
(Tr.
at
146.)
She
is often kept from falling back to sleep.
Mrs. Thomas
wears ear plugs to bed at night five to six times a week in order
to muffle the noise from Carry.
(Tr. at 149.)
Mrs. Thomas
testified that they will run their dishwasher or washer and dryer
right before they go to sleep in an effort to drown out the noise
from Carry.
(Pr.
at 146.)
Mrs. Thomas has stopped using her outdoor deck during the
day because of the noise.
The noise effects her enjoyment of
“just about everything
I do in the house, whether that be cooking
or eating dinner or eating lunch or watching T.V.”
She testified
that otherwise enjoyable activities such as eating “suddenly
becomes a tense and aggravating thing”.
(Tr. at 136-141.)
Mrs.
Thomas stated that every aspect of her life has become affected
and that she has become constantly on edge.
Mrs. Thomas
testified that she and her husband are less willing to invite
people over and have begun to invite themselves over to other
people’s houses.
They have consciously decided not to invite
people over because of the noise.
(Tr. at 143-144.)
She stated
that the washing noise is the loudest but the movement and hook-
up noises of the trucks are the most frequent.
(Pr.
at 147.)
Mrs. Thomas kept a journal of the noise.
The journal
consists of 82 pages and describes incidents where Mrs. Thomas
was disturbed by the noise.
She stated that she never made an
entry more than
24 hours after the recorded incident occurred.
She testified that most events recorded
in her journal were
situations where she observed the source of the noise.
Mrs.
Thomas testified that she has heard noise from the other
businesses west of Carry,
but the entries
in her journal report
noise from Carry only.
(Tr.
at 192.)
Mrs. Thomas stated that
6
she did not record every occasion when she was disturbed by the
noise.
(Tr.
at 153.)
One journal entry describes
a night where Mrs. Thomas was
awakened at 12:55
a.m. and kept awake until 2:55 a.m. and then
began to hear the noises again at 6:15 a.m.
(Tr.
at 153-161.)
Another journal entry recounted a night where the Thoniases were
kept awake for the entire night by a variety of noises from Carry
including truck horns and people yelling.
(Pr.
at 165.)
Another
entry describes an evening where Mrs. Thomas took an over—the—
counter sleep aid but was still awakened at 2:00 a.m.
by the
sound of truck revving, the coupling and uncoupling of cabs and
trailers and the grinding of gears.
She recorded being awaken
again every hour until she got up at 6:00 a.m.
(Pr.
at 169.)
Mrs. Thomas stated that she and her husband had met with
George VanDenend of Carry Companies in October of 1991.
She said
that Mr. Vandenend assured them that Carry was making an effort
to reduce the noise.
These efforts included posting signs, oral
and written memorandums, and instructing the washers to keep the
doors closed while washing the trucks.
In addition, Carry was
treating the gravel with a tar treatment to reduce the dust.
(Tr.
at 166—167.)
Mrs. Thomas testified that she had not noticed any reduction
in the noise since the time of the meeting with Mr. VanDenend.
One of Mrs. Thomases journal entries describes the night of June
12,
1992, after the meeting with Mr. VanDenend, where Mrs.
Thomas
was awaken at 3:15 by the sound of the truck wash.
Mrs. Thomas
observed that the doors to truck wash facility were open.
Mrs.
Thomas estimated that she has heard the truck wash and observed
the doors open forty to fifty times in calendar year 1992.
She
heard the truck wash and observed the doors closed ten to fifteen
times during the same period.
(Pr. at 170-173.)
Mrs. Thomas
believes that the Carry operation has reduced the value of her
home.
(Tr. at
181.)
Debbie Hoffert is a neighbor of the Thomases and testified
on their behalf.
Mrs. Hoffert stated she has also experienced
problems with the noise from Carry.
Mrs. Hoffert testified that
she has experienced noise problems from Carry since the summer of
1991.
She has been awakened at night by the noise from Carry.
Mrs. Hoffert testified that there
is “no question” that the noise
comes from Carry.
Mrs. Hoffert said she phoned Carry to complain
about the noise and asked Carry to close the doors to the wash
building when they are washing.
She testified that Carry closed
the doors immediately after the call but the next day the doors
were open again during the wash operation.
During the first two
weeks of July in 1992, Mrs. Hoffert cat—sat for the Thomases when
they were on vacation.
She testified that the truck wash noise
was much louder
in the Thomases’ home than
it is
in hers and that
she left the Thomases’ home rather than endure the noise.
(Tr.
7
at 206—216.)
Gregory Zak is employed by the Illinois Environmental
Protection Agency as a noise technical advisor.
He has been
involved in several thousand citizen complaint cases.
(Tr.
at
238.)
Mr.
Zak was accepted at hearing as an expert in noise
abatement.
(Pr. at 234.)
Mr.
Zak has visited the Thomases’
property on three occasions.
(Pr. at 245.)
Mr.
Zak placed the
severity of the noise impact in the upper one third of all the
noise cases he has worked on in the last twenty years.
He
classified the problem as “severe.”
(Pr. at 251.)
Mr.
Zak based
his estimation of the severity of the problem on the close
proximity to the Thoniases and the testimony of the witnesses.
(Pr. at 299.)
In Mr.
Zak’s opinion, the Thomases are
experiencing unreasonable interference with their life and
property as a result of the noise from Carry.
(Tr.
at 251.)
At the hearing,
Mr.
Zak proposed several methods to reduce
the impact of the noise on the Thomases.
Mr.
Zak proposed an
acoustic barrier as a partial solution.
(Tr.
at 254.)
Mr.
Zak
testified that a barrier fence of the sort he was recommending
would cost approximately $55,000.
Mr.
Zak described the barrier
fence as the key element to the entire noise control proposal.
(Tr. at 285.)
He also recommended equipping the tractors with
better mufflers, paving the parking lot and remodelling the wash
building.
(Pr.
at 268—269.)
Mr.
Zak believes that it would
cost between $500 and $1,000 per unit to replace the mufflers on
the trucks.
(Pr.
at 277.)
He stated that it would cost around
$2,000 to remodel the building.
He also recommended that the
trucks park only at the south end of the Carry property.
(Tr. at
278 and 280.)
According to his own testimony, Mr.
Zak has never set foot
on the Carry site.
He observed a total of two trucks in
operation on the Carry property.
He has not inspected the wash
building and has only a rough idea of its exterior construction;
he has never been inside the wash building.
He does not have any
first hand knowledge of the door construction or of the existence
or lack of existence of weatherstripping.
(Tr. at 295—298.)
George VanDenend is the president of Carry Companies,
and he
testified concerning Carry’s operations.
Carry employs thirty—
one people at its Decatur plant.
Carry paid $4,451 in state
taxes in 1990.
(Tr. at
354-358.)
Mr. VanDenend stated that it
is necessary for the business to operate 24 hours
a day,
seven
days a week.
(Tr. at 351.)
He stated that Carry would not be
able to operate
if its hours were restricted because they must be
available when the customer dictates and they must also comply
with Department
of Transportation service restrictions.
(Tr.
at
350-351.)
If their hours were restricted Carry “would not be
able to operate.”
(Tr. at
351.)
Mr. VanDenend testified that
all of Carry’s trucks which pull pneumatic trailers are equipped
8
with mufflers and silencers.
These silencers are not standard
equipment.
(Pr.
at 353.)
Mr. VanDenend stated that to retrofit
the trucks with the sort of mufflers Mr.
Zak suggested would cost
Carry more than a quarter of
a million dollars.
(Tr.
at 382.)
Mr. VanDenend testified that he first became aware of noise
complaints
in May or June of 1991.
He heard that someone had
approached one of their managers and had asked for a sum of money
to settle the problem.
After Mr. VanDenend was served with the
complaint, he inspected the Decatur facility.
Mr. VanDenend
stated that he found the operation to be very noisy and met with
Bobby Bradham, the site manager, and to discuss ways to minimize
the noise.
They decided they would treat the gravel, post signs
and dry the pneumatic trailers inside with the doors closed.
(Pr. at 360—362.)
After visiting the Decatur facility,
Mr.
VanDenend wrote the Phomases to communicate to them that their
concerns were being taken seriously and that Carry would take
steps to alleviate the problem.
(Tr. at 366-367.)
Mr. VanDenend
subsequently met with the Phomases and agreed to try to reduce
the noise.
They also discussed the Thomases’ property value.
(Tr. at 367—372.)
Bobby Bradham
is a regional vice president for Carry
Transit.
Mr. Bradham worked for Carry’s predecessor, Kreider
Company.
He stated that Kreider ran 25 to 30 units daily,
24
hours a day, seven days
a week.
He stated that Kreider conducted
the same trucking operation as Carry except that Kreider’s
operation was antiquated.
He testified that at least one other
business, Performance Transport, worked out of the Decatur
location until the middle of 1990.
(Pr. at 401—407)
Mr. Bradham examined a photo of the Carry Company
neighborhood taken between 1989 and early 1991.
He identified
two construction companies,
a trucking company and a truck
storage company
in the immediate area.
One company that borders
Carry, Otto Baum, stores heavy equipment such as back hoes and
end loaders.
Mr. Bradham has heard noise from Otto Baum as early
as 6:00 a.m.
and as late as 7:30
p.m..
He testified that another
trucking company in the area operates at all hours and makes
noise associated with loading and off-loading freight.
Mr.
Bradham stated that a third trucking operation in the immediate
area “alone would far and above shadow” Carry and the other
trucking operations in the area.
Some of these operations have
gravel parking lots which produce dust.
(Tr. at 407-415.)
Mr. Bradham stated that around 30
of the washing occurs
during the nighttime hours.
He stated that busy times are
variable and that it depends on customer demand.
(Tr.
at 417—
420.)
Mr. Bradham stated that after Carry bought the site from
Kreider,
Carry added a layer of insulation,
another layer of
metal,
a layer of two-by-fours and a layer of plastic sheeting to
the interior of the wash building.
Mr. Bradham stated that this
9
adds up to three walls on the interior of the building.
He
stated that the doors are insulated and watersealed.
(Tr.
at
400.)
Mr. Bradham stated that they have installed new washing
technology which will eliminate two spin cycles and which he
believes will eliminate much of the noise.
He stated that it is
true that they do not close the doors at all times but stated
that it
is unnecessary to shut the doors when drying the liquid
tanks because they are insulated and produce no noise.
(Tr.
at
421—424.)
Mr. Bradham stated that Mr. Thomas asked him for $20,000 to
settle the matter.
Mr. Bradham produced a desk calendar which
noted the meeting with Mr. Thomas and the notation “S. Thomas
neighbor, noise and dust, 20,000 bucks.”
He stated he made that
note during or right after his meeting with Mr.
Thomas.
(Tr.
at
511.)
He testified that at
a subsequent meeting, Mr. Thomas
asked for $5,000 to settle the matter.
Mr. Bradham stated that
he was aware of only one other complaint besides the complaint
from the Thomases.
He said the other complaint concerned noise
from a lawn mover.
(Pr.
at 424—433.)
Mr. Bradham has written memos and posted signs instructing
the truck drivers to reduce the noise and park at the south end
of the 1~t. Mr. Bradham believes that his employees are
following these directives.
(Tr. at 441.)
Mr.
Bradhain believes
that since they have responded to the Thomases’ complaints in the
late part of 1991 and early part of 1992, the noise has been
reduced by 80.
(Pr. at 440 and 450.)
On cross examination, Mr. Bradham acknowledged that he
failed to mention that Mr. Thomas had asked for $20,000
in an
earlier deposition.
(Tr.
at 456.)
He also acknowledged that he
had stated in the earlier deposition that Performance Transport
was not using the wash operations in mid-1990.
This contradicted
his testimony at hearing.
(Tr.
at 405.)
He also admitted that
Kreider’s operation was substantially decreased at the time the
Thomases’ bought their property and that Carry’s business had
substantially increased from 1990 to the time of the hearing.
He
also acknowledged that,
in contradiction to his testimony at
hearing, he was aware that they had received
a complaint
concerning the noise other than the Thomases’.
(Tr. at 461-463.)
On redirect, Mr. Thomas denied ever asking in a face—to—face
meeting for monetary compensation and denied ever asking for
$20,000.
(Pr. at 505—506.)
Mr. Joseph Stolte works for Carry as a wash bay personnel.
He stated that on average two or three pneumatic tankers are
washed at night during the week and an average of eight liquid
tankers are washed per night.
He testified that Carry has
implemented procedures to reduce the noise.
(Tr.
at 484—487).
Judy Brummerstedt is employed by Carry as
a dispatcher and had
also worked for Kreider.
She testified that Kreider conducted a
10
truck washing operation on the site now owned by Carry.
She also
stated that Performance had washed their trucks at the facility.
(Pr.
at 491—500.)
HEARING TESTIMONY CONCERNING DUST
Mr. Thomas testified that in late June of 1992, the Thomases
painted the outside of their house and had ample opportunity to
observe the trucks.
They witnessed the trucks kick up a cloud of
dust which floated onto their property.
Since the time the
parking lot was expanded they have seen a vast increase in the
amounts of dust on their property.
(Pr.
at 65.)
They have to
clean the screened—in porch more frequently and the pool filter
has burned out.
He testified that the pool must be cleaned once
a day.
They have to wipe down the furniture in the porch every
time they want to sit out there but before the parking lot
expansion, they had only to wipe the furniture once every couple
of months.
(Pr.
at 66.)
Mrs. Thomas directly observed the dust float over from the
Carry property.
After the dust problem began, the Thomases
didn’t use their screened-in porch for the rest of the summer.
The Thomases painted the outside of their house after the gravel
lot was laid and found that the paint did not cover as well on
the side of the house facing the gravel
lot.
(Tr.
at 114—117.)
The dust problem abated in the winter but Mrs. Thomas stated that
the dust problem was as bad in the summer of 1992 as
it had been
in the summer of
1991.
(Pr.
at 124.)
Mr. VanDenerid testified that the City of Decatur has
initiated
a court proceeding against Carry concerning the parking
lot.
The subject of the dispute
is whether the new gravel area
is a new lot or an expansion of an old one.
Mr. VanDenend
testified that the City requires new lots to be paved.
He stated
that a complication has arisen because if the lot is paved, the
water will most likely run-off onto the Thomases property.
The
closest municipal storm sewer system is over 1,000 feet to the
East from the Carry property.
Mr. VanDenend reported that an
engineering company is evaluating alternatives.
(Pr. at 376—
380.)
Mr. Bradham testified that after he received the
complaints from the Thomases, Carry oiled and chipped the lot in
July of 1991 and that as a result there is “virtually no dust”.
(Pr.
at 435; Respondent’s Exhibit No.
14.)
ANALYSIS
The complainants allege that the respondents have violated
Sections 9,
23 and 24 of the Act.
The complainant does not rely
on numerical quantification of the noise or dust emissions to
prove
a violation.
Therefore,
this
is a “nuisance” case.
In a
“nuisance” case quantification of noise or dust is immaterial
in
determining whether such
a violation has occurred.
(Fernd~
11
Heights Utilities Co.
v.
Illinois Pollution Control Board
(1st
Dist.
1976),
44
Ill. App.3d
967,
358 N.E.2d
1224,
1228.)
The Act
and Board rules prohibit both noise and air pollution.
Regarding “nuisance noise”, the prohibitions in the Act and
Board regulations turn on the degree to which the noise
interferes with
a complainant’s normal activities.
Thus,
Section
900.102 of the Board’s rules provides:
No person shall cause or allow the emission
of sound beyond the boundaries of his
property
...
so as to cause noise pollution
in Illinois, or so as to violate any
provision of this Chapter.
The rules define “noise pollution” as “the emission of sound that
unreasonably interferes with the enjoyment of life or with any
lawful business or activity.”
35
Ill.
Adin.
Code 900.101
(1987).
Section 24 of the Act prohibits noise pollution in almost
identical terms:
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
(1992)
In addition, regarding air pollution,
Section 9(a)
of the
Act provides:
No person shall cause or allow the discharge
or emission of any contaminant into the
environment in any State so as to cause or
tend to cause air pollution in Illinois,
either alone or in combination with
contaminants from other sources,
or so as to
violate regulations or standards adopted by
the Board under this Act.
415 ILCS 5/9
(1992)
Section 3.03 of the Act defines “Air Pollution”
as:
the presence in the atmosphere of one or more
contaminants in sufficient quantities an of
such characteristics and duration as to be
injurious to human,
plant, or animal
life,
to
health,
or to property or to unreasonably
interfere with the enjoyment of life or
12
property.
415 ILCS 5/3
(1992)
Thus,
under the Act, the respondents have violated the
nuisance noise or air provisions if the noise or dust have
unreasonably interfered with the complainants’ enjoyment of life
or with their pursuit of any lawful business or activity.
Unreasonable interference is more than an ability to distinguish
sounds attributable to a particular source.
It is also more than
subjective “annoyance” due to the sounds.
Rather, the sounds
must objectively effect the complainant’s life or business
activities.
(See Kvatsak v.
St. Michael’s Lutheran Church
(Aug.
30,
1990), PCB 89—182,
114 PCB 765, 773
; Kochanski v. Hinsdale
Golf Club (July 13,
1989), PCB 88—16,
101 PCB 11,
20—21, rev’d on
other grounds,
197 Ill.App.3d 634,
555 N.E.2d
31
(2d Dist.
1990)
.)
The Board now turns to consideration of whether the noise
and dust create an unreasonable interference with the Thomases
enjoyment of life and property.
UNREASONABLE INTERFERENCE
The Illinois Supreme Court has directed the Board to
consider the facts of a “nuisance” case in light of the factors
outlined by section 33(c)
of the Act to determine
unreasonableness.
(Wells Manufacturing Co.
v.
PCB,
73 Ill.2d
226,
232—33,
383 N.E.2d 148,
150—51
(1978)
(“nuisance” air
pollution;
first four factors only); see Ferndale Heights
Utilities,
44 Ill.App.3d at 967—68,
358 N.E.2d at 1228.)
Wells Manufacturing Co.
V.
PCB,
73 Ill.2d 226,
232—33,
383 N.E.2d
148,
150—51
(1978).
The section 33(c)
factors are as follows:
(i)
the character and degree of injury to,
or
interference with the protection of the health,
general welfare and physical property of the
people;
(ii)
the social and economic value of the
pollution source;
(iii)
the suitability or unsuitability of the
pollution source to the area in which
it is
located, including the question of priority of
location in the area involved;
(iv)
the technical practicability and economic
reasonableness of reducing or eliminating the
emissions
...
resulting from such pollution
source; and
13
(v)
any subsequent compliance.
415 ILCS 5/33(c).
Character and Degree of the Iniurv or Interference
Section 33(c) (1)
directs the Board to consider the character
and degree of any interference caused by the noise emitted from
the Carry facility.
The standard is whether the noise
substantially and frequently interferes with complainants’
enjoyment of life or a lawful business activity, beyond minor
trifling annoyance or discomfort.
(See,
e.g.,
Brainerd v. Hagen
(April
27,
1989), PCB 88—171,
98 PCB 247.)
Complainants allege that the noise and dust generated by
respondent’s truck wash and parking facility unreasonably
interferes with their enjoyment of life and property.
Specifically, they complain of noise from the washing and drying
of tanker trailers,
the start-up and
idling of trucks and the
hooking and unhooking of tractors and trailers.
Respondents
reply that complainants are in fact only concerned about property
values.
The record establishes that Carry operates on a year—round
basis.
It operates 24 hours a day, seven days a week.
The
record indicates that the Thomases are awaken between three and
five times a week.
Every aspect of their lives have been
impacted by the noise including eating,
sleeping, watching T.V.
and conversing.
They report that Mrs. Thomas frequently wears
ear plugs at night.
Mr. and Mrs. Thomas have variously described
the noise as:
“incredibly
loud”; similar to “being on the tarmac
of a runaway when a jet is whining”;
“a high pitched loud
whining” which rattles the china
in their house;
“an incredible
slamming, banging noise of metal against metal”; an intense
explosive crash that “sounds like a car accident” and a “high
pitch scream that circles and circles.”
Mr.
Zak placed the severity of the noise impact in the upper
one third of all the noise cases he has worked on in the last
twenty years and classified the problem as “severe.”
Mr.
Zak
based his estimation of the severity of the problem on the close
proximity to the Thomases and the testimony of the witn~sses.
In
Mr.
Zak’s opinion, the Thomases are experiencing unreasonable
interference with their life and property as a result of the
noise from Carry.2
2
Carry asserts that the comments by Greg Zak should be given
limited weight due to the fact that he personally observed only two
trucks operating out of Carry and that he based his evaluation that
the noise was “severe” on the testimony of the Thomases.
The Board
agrees that Mr.
Zak’s testimony must be considered in light of his
14
The Thomases report that the dust from Carry Company has
burned out the filter in their swimming pool.
They report that
they have greatly decreased the use of their backyard patio due
to the dust.
They must clean off the backyard furniture every
time they use it.
They must hose down the screens frequently.
Carry asserts that the noise and dust emitted from Carry do
not create unreasonable interference and that the true basis of
the complaint is the Thomases’ concern over property value.
Carry supports this by asserting that on a number of occasions
Mr. Thomas demanded money
in order to settle the dispute.
They
point to Mr. Bradham’s testimony that Mr. Thomas demanded
$20,000.
Mr. Bradham produced a desk calendar for the date of
the meeting where he had made the notation “S. Thomas neighbor,
noise and dust, 20,000 bucks.”
However,
Mr. Bradham did not
mention the $20,000 request prior to the hearing,
including an
earlier opportunity during a sworn deposition.
Carry also points
to letter written by Mr. Thomas which requested $5,000.
Under
oath,
Mr. Thomas denied having ever demanded $20,000
in a face-
to—face meeting.
Respondent contends that complainants’ requests for money
indicate that complainant’s real concern is property value and
therefore complainant is not truly experiencing unreasonable
interference with life and property.
(Pr. at 13.)
The Board
rejects this view.
The Act expressly lists the depreciation of
property values as an adverse effect of noise pollution.3
Therefore,
it
is foreseeable that a complainant may protest of
depreciated property values while at the same time experiencing
unreasonable interference with life and property.
Moreover,
Section 33(b)
of the Act provides that the Board may impose civil
penalties where appropriate.
(415 ILCS 5/33(b)
(1992).)
However, this civil penalty is paid into the Environmental
Protection Trust Fund and not to complainants.
(415 ILCS 5/42
(1992).)
Carry further asserts that the noise and dust come from
limited exposure.
However,
Mr.
Zak testified that the impact of.
the noise, rather than the noise itself, was severe.
~
Section 23
of the Act states:
The General Assembly finds that excessive noise endangers
physical and emotional health and well-being,
interferes
with
legitimate
business
and
recreational
activities,
increases construction costs, depresses property values,
offends
the
senses,
creates
public
nuisances,
and
in
other respects reduces the quality of our environment.
(emphasis added)
15
neighboring industries.
Carry contends that there are several
operations
in the area that produce noise and dust comparable to
Carry.
Carry concludes that the Thomases are mistaken as to the
source of the noise.
Testimony from the Thomases, Greg Zak and Debbie Hoffert,
refutes this claim by Carry.
Mrs. Thomas stated that the
majority of the entries
in her journal were occasions where she
directly observed the source of the noise.
Mr. Thomas stated the
noise from the other industrial properties located to the west of
the Carry property are very rare and low in volume.
He
characterized the noise from other sources as “non-intrusive.”
Mrs. Hoffert testified that there is “no question” that the noise
comes from Carry.
Mr.
Zak personally witnessed two trucks in
operation at the time he heard the noise.
The Thoinases testified that the dust problem began just
after the Carry
lot was graveled.
They directly observed trucks
on the Carry property kick up the dust and watched the dust
settle on their property.
In contrast to the direct testimony
offered by complainant, Carry produced only attenuated evidence
that the dust could have come from another source.
The Board concludes that the noise and dust complained of by
the Thomases is produced by Carry.
Furthermore, the Board
concludes that the character and degree of injury to enjoyment of
life and property experienced by the Phomases
is beyond minor
trifling annoyance or discomfort.
Social and Economic Value of the Pollution Source
Section 33(c)(2) directs the Board to consider the social
and economic value of the pollution source.
The record
establishes that Carry has economic and social value.
Carry
employs 31 employees and paid $4,451
in state taxes in
1990.
Carry has developed a specialized niche within the hauling
industry as a hauler of water soluble food grade materials.
Suitability or Unsuitability of the Source
Section 33(c)(3) directs the Board to consider 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.
Carry appears to be well suited to the area.
Truck parking
terminals and construction companies occupy the properties to the
immediate south
arid to the west of Carry.
The area that Carry
is
located
in
is zoned “light industrial.”
(Respondent Exhibits
Nos.
5,
6,
and 7).
The record indicates that the Thomases bought their present
16
home
in Decatur,
Illinois,
in December of 1989 and that Carry
purchased the Decatur terminal
in approximately July of 1990.
Mr. Bradham acknowledged that Kreider’s operation substantially
decreased between 1987 and 1990
(at the time the Thomases
purchased their home)
and that Carry’s business had substantially
increased between 1990 and the time of the hearing.
Carry
contends that while they did not own the site prior to the
Thomases, the previous owner of the site conducted much the same
operation as Carry.
The Board has previously addressed whether a substantial
increase in activity mitigates priority of location.4
In Ka1i
v.
Olson Mfg.
Co., 41 PCB 245
(1981),
aff’d,
109 Ill. App.3d
1168,
441 N.E.
2d 186
(1982),
the Board “somewhat reluctantly”
found that the respondent’s activities did not constitute
unreasonable interference.
In reaching its determination, the
Board stated “considering the character of the neighborhood and
the fact that Kaji was aware of such character when he moved
in,
Kaji must reasonably have expected that additional manufacturing
facilities could lawfully be added by Olson.”
The Board gave
considerable weight to the determination that complainant’s
requested relief would have resulted in the closure of the entire
plant.
Moreover,
respondent had already “reduced the sound
emissions as much was
is technically and economically
practicable.”
In Wells Manufacturing Co.
v. Pollution Control Board,
73
Ill.2d 226,
237,
383 N.E2d
148,
152
(1978) the Illinois Supreme
Court stated “tjhe
residents and school were on notice of the
possibility that some annoyances present in heavy-manufacturing
areas could affect them,
and this fact considerably diminishes
the potency of their complaints.”
The court went on to state
“a)n
industry cannot,
of course, substantially increase its
odorous emissions and simultaneously rely on its priority of
location in the area as
a mitigating factor.
This sort of
changed circumstance, would,
as the Board points out, undermine
the industry’s priority of location argument.”
In Wells
Manufacturing, the court found that there was not sufficient
evidence to demonstrate that Wells had substantially increased
its emissions.
The record in this matter indicates that similar operations
occurred on the Carry site prior to the time the Thomases bought
their property.
In Amino
v.
Browning Ferris
(1988)
PCB 97—139,
the Board noted that,
in general,
a party is charged with
constructive knowledge of land conditions that would be
See
also
Detlaff
v.
Boado
(July
1,
1993)
PCB
92—26) (“Priority
of
location
does
not
achieve
the
level
of
an
absolute
defense
but
it
is
to
be
considered
with
the
other
factors”).
17
discoverable upon inspection.
Thus the Thomases were on
constructive notice that some sort of industrial activity would
occur on the Carry site.
Furthermore,
as with the complainants
in Kali, the Thomases should have reasonably expected that
additional activities could occur.
In this matter,
as
in Kali,
it is undisputed that activity
substantially increased on the property.
However,
in
Ka-li, the
Board gave great weight to the fact that complainant’s requested
relief would have closed the entire plant and that the respondent
had already reduced the emissions as much as was technically and
economically feasible.
The record in this matter indicates that
Carry can further reduce emissions without closing altogether and
that Carry has not reduced emissions as much as is technically
and economically possible.
In Wells Manufacturing, the court
held that changed circumstance undermines a priority of location
argument.
However,
in this matter,
in contrast to Wells
Manufacturing, the record contains uncontroverted testimony that
Carry has substantially increased it’s operations.
The Board concludes that for the purposes of this dispute,
Carry
is suitable to the area.
However, the Board also notes
that at the time the Thomases bought their home,
Carry did not
own the adjoining property and the operations conducted on the
Carry property was substantially less than Carry’s level of
activity.
The increased activity mitigates Carry’s claim of
priority of location.
Technical Practicability and Economic Reasonableness of Control
Section 33(c)(3) directs the Board to consider the technical
practicability and economic reasonableness -of reducing or
eliminating the emissions.
Mr.
Zak proposed several methods to reduce the impact of the
noise on the Thomases including an acoustic barrier, equipping
the tractors with better mufflers, paving the parking lot and
remodelling the wash building.
He also recommended that the
trucks park only at the south end of the Carry property.
However,
Mr.
Zak has never set foot on the Carry site and has
not inspected the wash building and has only a rough idea of its
exterior construction; he has never been inside the wash
building.
He does not have any first hand knowledge of the door
construction or of the existence or lack of existence of
weatherstripping.
Mr. VanDenend stated that it
is necessary for the business
to operate 24 hours
a day, seven days a week.
If their hours
were restricted Carry “would not be able to operate.”
Mr.
VanDenend stated that to retrofit the trucks with the sort of
mufflers Mr.
Zak suggested would cost Carry more than a quarter
of a million dollars.
18
The record indicates that the City of Decatur has initiated
a court proceeding against Carry concerning the parking lot.
The
subject of the dispute is whether the new gravel area
is a new
lot or an expansion of an old one.
New lots in Decatur must be
paved.
The dispute with the City of Decatur will likely have
bearing on any further action taken by Carry to reduce dust
emissions.
Subsequent Compliance
Mr. Bradham testified that after he received the complaints
from the Thoniases, Carry oiled and chipped the lot and that there
was “virtually no dust.”
(Pr.
at 435.)
Mr. Bradham has written
memos and posted signs instructing the truck drivers to reduce
the noise and park at the south end of the lot.
Mr. Bradham
believes that his employees are following these directives.
Mr.
Bradham believes that since they have responded to the Thomases’
complaints in the late part of 1991 and early part of 1992,
the
noise has been reduced by 80.
Mrs. Thomas testified that she had not noticed any reduction
in the noise since the time of the meeting with Mr. VanDenend.
Several of the entries in her journal relate incidents that
occurred in the summer of 1992, after the remedial measures had
been instituted.
Mr. Thomas stated that the noise has increased
in
1992.
Mrs. Hoffert testified that she has experienced noise
problems from Carry since the summer of 1991.
The record indicates that a new wash system was brought on
line just before the hearing.
However,
the record does not
indicate whether this new system has substantially reduced the
noise of the washing operation.
Based on the testimony at
hearing,
the Board concludes that subsequent compliance has not
effectively reduced the noise and dust generated by Carry.
Nuisance Finding
After considering the facts and circumstances of this case,
including factors outlined in Section 33(c)
of the Act, the Board
finds that respondents’ emissions of noise and dust constitute an
unreasonable interference with complainants’ enjoyment of life
and lawful activity.
CONCLUSION
The complainants have shown that they have suffered
unreasonable interference with their enjoyment of life as
a
result of the noise and dust emanating from respondent’s
property.
While the Board finds that the facility does have
social and economic value and appears to be in a suitable
location, this value is reduced by the harm resulting from
excessive noise and dust emitted
by the facility.
Moreover, the
19
interference suffered by complainants
is beyond minor trifling
annoyance or discomfort.
Furthermore,
Carry has substantially
increased its emissions and this increase undermines any priority
of location that Carry may assert.
Therefore,
after considering
the facts and circumstances of this case,
including the factors
outlined in Section 33(c) of the Act, the Board finds that the
respondent is emitting noise and dust that constitutes an
unreasonable interference with the complainants’ enjoyment of
life and lawful activity,
in violation of Sections 9(a),
23 and
24 of the Act.
REMEDY
The Environmental Protection Act authorizes the Board to
impose sanctions on those it holds to have violated the Act or
Board regulations.
Section 42(a)
authorizes the Board to impose
a civil penalty.
The fact that complainant in this case has not
requested that the Board impose such a penalty,
and
a summary
consideration of the factors of Section 42(h)
of the Act in light
of the facts
in the record,
induce the Board to conclude that
such a penalty is unwarranted in this case at this time.
Section
33
of the Act authorizes the Board to issue an order
as
it deems appropriate under the circumstances.
It would appear
to be impossible to totally eliminate the noise emissions without
shutting down the facility, but it does appear that some
reduction is technically and economically possible.
However, at
this time the Board believes that the record lacks sufficient
information for the Board to order specific controls.
Therefore,
the Board will issue this interim order directing the respondent
to address methods of reducing noise and dust emanating from
respondents property, including those suggested by Mr.
Zak as
well as other appropriate methods respondent may develop.
Respondent is to file such study with the Board.
The Board will
allow the complainants an opportunity to respond to the study
submitted by the respondents.
The Board will then issue
a final
opinion and order describing the control methods the respondent
shall take to reduce emissions from its facility.
This interim opinion constitutes the Board’s interim
findings of fact and conclusions of law in this matter.
ORDER
1)
The Board
finds that the respondent,
Carry
Companies’,
operations constitutes an unreasonable
interference with the complainants’ enjoyment of
life and lawful activity in violation of Sections
9(a),
23 and 24
of the Act.
2)
Respondent
is hereby ordered to examine the economic
reasonableness and technical feasibility of any control
20
options which it may deem appropriate to reduce the
noise and dust emissions from its facility including
those set forth by Mr. Gregory Zak in his testimony.
3)
The above mentioned studies shall be completed no
later than December
1,
1993, and filed with the
Board and served on the complainant,
by that date.
The complainant shall file
a response to the
studies no later than January 15,
1994.
The
studies will be presented to the Board so that the
Board may enter a final order describing the
control methods the respondent shall take to
reduce emissions from its facility.
IT IS SO ORDERED.
R.C. Flemal dissents and
3.
Theodore Meyer concurs.
Section 41 of the Environmental Protection Act
(415 ILCS
5/41
(1992)) provides for the appeal of final orders of the Board
within 35 days.
The Rules of the Supreme Court of Illinois
establish filing requirements.
(See also 35
Ill.
Adin.
Code
101.246, Motion for Reconsideration.)
I,
Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, do hereby certify that the abov
opinion and order was
adopted on the
__________
day of
____________,
1993,
by a
vote of
~—/
.
1’
7~~
~.
~Dorothy
M. c~inn, C1er~z
Illinois Pcw~lutionControl Board
