ILLINOIS POLLUTION CONTROL BOARD
August 13,
1992
CLYDE
R. DACE
)
Complainant,
v.
)
PCB 91—153
(Enforcement)
D. KOHLHASE and FOX
)
RIVER GROVE FIRE
)
PROTECTION DISTRICT,
)
)
Respondents.
CLYDE R.
DACE APPEARED PRO SE,
AND
RICHARD
3.
CURRAN,
JR. APPEARED ON BEHALF OF RESPONDENTS.
OPINION
AND
ORDER OF THE BOARD
(by J.
Anderson):
On August 30,
1991,
Clyde R.
Dace
(Mr. Dace)
filed a formal
noise complaint with the Board.
The complaint named the Fox
River Grove Fire Protection District and Mr. Donald Kohihase, the
Fire Chief of the District,
as respondents.
A hearing was held
on December 20,
1991,
in Woodstock,
Illinois.
Mr. Dace and the
respondents filed their closing arguments on February 18,
1992,
and on March
6,
1992,
respectively.
There were no members of the
public present at the hearing.
In his complaint,
Mr. Dace alleges that respondents’ siren
emits excessive noise beyond the boundaries of the fire station
in violation of Section 23 of the Environmental Protection Act
(Act),
Ill. Rev.
Stat.
1991,
ch.
111½,
par.
1023, and 35
Ill.
Adm. Code 900.102.
Mr. Dace requests the Board to order
respondents to use pagers only, rather than using the pagers in
conjunction with the siren for emergencies.
BACKGROUND
The Fox River Grove Fire Protection District (District) has
two fire stations.
The main station is on Algonquin Road and the
second station is on Lucille and Illinois Avenue.
One station is
located north of Route 14 and the other is located south of Route
14.
Both stations are approximately half a block off of Route 14
and the intersections off of Route 14 for each station are
approximately half a block apart.
(Tr.
59,
82.)
Route
14
is a
five lane highway that runs on a northwest/southeast angle and
splits the Village of fox River Grove in half.
(Tr. 81,
82.)
During the day there is moderate to heavy traffic on Route
14.
(Tr.
82.)
The District provides emergency ambulance service and fire
fighting capabilities for structures, car accidents,
etc.
(Tr.
0
I 35-0277
2
57,
87,
88.)
The District services approximately six thousand
people in six to nine square miles
in McHenry County, parts of
Barrington Hills, parts of unincorporated McHenry County, and the
Village of Fox River Grove.
(Tr.
74,
88.)
Although there are no
personnel at the fire stations on a regular basis during the
daytime hours, the District has 24 paid-on-call members including
the Fire Chief
,
eight paramedics, nine
EMTS
(first aid
personnel), and six fire fighters.
(Tr.
56,
58,
73,
87.)
The
paid—on—call personnel are volunteers who are reimbursed from the
District for their labor and services in responding to emergency
calls.
(Tr.
21,
23,
57.)
During daytime hours approximately two
to six firemen and one to two paramedics are available.
(Tr.
63—
64.)
Fifteen people are available during the night.
(Tr. 72.)
From April through November of 1991, there were
approximately 130 calls, 80 of which were daytime calls.
(Tr.
62.)
Between April of 1990 and April
of 1991, there were 226
calls, 130 of which were daytime calls.
(Tr.
62—63.)
Approximately 80 percent of all calls are medical emergency
calls.
(Tr.
63.)
The siren at issue is located at the main fire station and
is mounted on an elevated pole at the back of the station.
(Tr.
59,
60.)
It
is used as a tornado warning device and as an
emergency warning device for firemen.
(Tr.
59—60.)
Prior to
1978,
the siren was used 24 hours a day.
(Tr.
72.)
However,
when the District purchased non-vibrating pagers for its
personnel in 1978, the siren was used only 12 hours a day and did
not sound during the night.
(Tr. 64,
72,
78.)’
The siren is
currently being used from 6 am to 6 pm, on an average of three
times a week for two minutes at a time.
(Tr.
60,
89.)
The
siren
is not used at night because the firemen carry pagers at
night and thus, hear calls when they are not at home, and because
more District personnel are available at night.
(Tr. 84.)
During an emergency,
District personnel are first notified of the
nature and the location of an emergency via the pagers by the
Cary Police Department.
(Tr.
75,
76.)
The siren is sounded
after the District’s personnel have been dispatched via the
pagers.
(Tr.
77.)
The firemen typically go to the fire station
first to obtain equipment and then go to the scene unless the
emergency happens to be near or on the way for someone.
(Tr. 76—
77,
83.)
In June of 1990,
Mr. Dace called the mayor of Fox River
Grove regarding the siren but was told that the Village had no
jurisdiction over the District and that Mr. Dace would have to
contact the District himself.
(Tr.
34-35.)
In September of
‘Although fire department personnel are not required to carry
their pagers at all times, most do.
(Tr.
21,
65,
93,
96.)
0135-0278
3
1990,
Mr.
Dace called the District to find out when their public
meetings were held so that he and his neighbors could discuss the
noise being emitted from the siren.
(Tr. 35.)
In October and
November of
1990,
Mr. Dace and several of his neighbors attended
two District meetings.
(Tr.
35.)
At the second meeting in
November,
the use of pagers was discussed.
(Tr.
35.)
At that
same meeting,
the District stated that an unsuccessful attempt
had been made to baffle the siren.
(Tr.
15,
19,
20,
32,
35.)
APPLICABLE
LAW
As previously stated, Mr. Dace alleges that respondents have
violated Section 23 of the Act and 35 Ill. Adm. Code 900.102.
Mr. Dace does not rely on numerical quantification of the noise
-
emissions to prove
a violation.
Therefore, this is a “nuisance”
case and such quantification is immaterial in determining whether
such a violation has occurred.
(Ferndale Height Utilities Co. v.
Illinois Pollution Control Board
(1st Dist.
1976),
44 Ill.App.3d
967,
358 N.E.2d
1224,
1228.)
With regard to. “nuisance noise”, the prohibitions in the Act
and Board regulations turn on the degree to which the noise
interferes with
a complainant’s normal activities.
Section
900.102 of the Board’s regulations provides:
No person shall cause or allow the emission
of sound beyond the boundaries of his
property,
as property
is defined in Section
25 of the Illinois Environmental Protection
Act,
so as to cause noise pollution in
Illinois, or so as to violate any provision
of this Chapter.
The regulations 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.
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.
Thus,
under the Act and Board regulations,
a noise
violation has occurred if the complainant has prpven that the
complained of noise has unreasonably interfered with the
complainant’s enjoyment of life or with his pursuit of any lawful
business or activity.
0135-0279
4
The Board has previously determined in “nuisance noise”
proceedings that unreasonable interference is more than an
ability to distinguish sounds attributable to a particular
source.
Rather, the sounds must objectively affect the
complainant’s life or business activities.
See Kvatsak v.
St.
Michael’s Lutheran Church (August 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 (2d Diet.
1990),
197 Il1.App.3d 634,
555 N.E.2d 31.
The Illinois Supreme Court has directed that the Board must
consider the facts of the case in light of the factors outlined
by 33(c)
of the Act in determining whether unreasonable
interference has occurred under the Act and Board regulations.
Wells Manufacturing Co.
v. PCB
(1978),
73 Ill.2d 226,
232—33,
383
N.E.2d 148,
150—51
(“nuisance” air pollution; first four factors
only); Férndale Heights Utilities,
44 Ill.App.3rd at 967—68,
358
N.E.2d at 1228.
Those factors as set forth in Section 33(c)
of
the Act are as follows:
1.
the character and degree of injury to, or
interference with the protection of the
health, general welfare and physical property
of the people;
2.
the social and economic value of the
pollution source;
3.
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;
4.
the technical practicability and economic
reasonableness of reducing or eliminating the
emissions,
discharges or deposits resulting
from such pollution source; and
5.
any economic benefits accrued by a non-
complying pollution source because of its
delay in compliance with pollution control
requirements;
6.
any subsequent compliance.
ANALYSIS
At the outset, the Board notes that respondents,
in their
opening and closing statements,
present the argument that the
siren is an emergency warning device that is exempt from the
Board’s noise regulations.
More specifically, respondents argue
that the exception for emergency warning devices that is found in
0135-0280
5
35 Ill.
Adm.
Code 901.107(b)
is applicable to the nuisance
standards of 35 Ill. Adm. Code 900.102 as well as the numerical
standards of 35
Ill.
Adm.
Code 901.102 et seq.
Respondents add
that to find that the, exception does not apply to 35 Ill.
Adm.
Code 900.102 defeats the purpose of having the exception.
Respondents also contend that if the exception is not applicable,
Mr. Dace could argue that ambulance,
fire truck,
and police car
sirens cause noise pollution.
Finally, respondents note that 35
Ill.
Adm. Code 900.104 places the burden of persuasion regarding
an exception on respondent.
Respondents argues that if the
exceptions of
35 Ill. Adm. Cod 901.107 are not applicable to 35
Ill.
Adin. Code 900.102,
35 Ill.
Adm. Code 900.104 should be
placed in 35
Ill. Adm. Code 901.
The Board notes that the numerical standards are based on
community response.
In a nuisance complaint brought by
individuals, data showing the respondent does or does not exceed
the numerical standards may be a consideration but is not
dispositive (See Kali v.
R. Olson Manufacturing (April 16,
1981),
PCB 80—46,
41 PCB 245, aff’d
(July 19,
1982),
109 Ill.App.3d
1168,
441 N.E.2d 185, and Zivoli v. Somebody’s Bar and Restaurant
(May 21,
1992),
PCB 90-200).
The Board recognizes that one might
argue that an anomaly exists where the numerical standards do not
apply at all;
a person can be found to be causing noise pollution
even though the Board specifically exempts them from violation of
the noise standards.
However, neither the Act nor Board
regulations specifically exempt emergency warning devices from
being subject to a nuisance complaint; whether such an amendment
should be made is not before us in this case.
In so saying,
however, we note that,
where emergency warning devices are
involved, the Board would weigh the Section 33(c)
factors with
considerable care before making a finding of unreasonable
interference.
For example, the social and economic value of a
siren that is used solely as an emergency warning device is
likely to outweigh the other 33(c)
factors.
(See Vickers v.
Village of Milstadt
(September
12,
1991), PCB 91—42.)
Character and Degree of the Iniury or Interference2
Mr. Michael Ireland has lived at 430 Concord Avenue in Fox
River Grove,
Illinois,
for the past four years.
(Tr.
17,
24.)
The back of his home faces and is southwest of the fire station
and is about 50 to 60 yards from the siren.
(Tr. 11,
12,
16—17.)
He testified that the siren is definitely “different” and that it
is very annoying.
(Tr.
12,
13.)
He characterized the noise as
being screeching and piercing even when all the windows of his
21n
a
letter
dated
December
24,
1991,
the hearing
officer
forwarded two letters to the Board as part of the public coniment
portion of the record.
Mr. Dace submitted the letters at hearing
in support of his complaint.
(Tr.
54—55..)
0135-028
1
6
home were closed.
(Tr.
15.)
He also testified that the noise
was worse than turning up a stereo to its maximum level.
(Tr.
15.)
Mr. Ireland testified that the siren has eight different
pitches and that it blows from one and one half to two minutes at
a time.
(Tr. 16.)
Although Mr. Ireland testified that he could
not give an accurate number of times that the siren sounds in a
given week because he is at work, he knows that the siren sounds
during the week and that the siren sounds more on the weekends.
(Tr.
15.)
Ms. Julie Tasic has lived at 421 Concord Avenue, and across
from Mr.
Dace,
for the past four years.
(Tr.
25,
29.)
Ms. Tasic
testified that she has three children, ages 4,
3, and
1½
years,
and that there are eleven children, ages 7 years or younger, who
live
in the first eight houses on Concord Avenue.
(Tr.
25,
26.)
Ms. Tasic testified that the siren hurts the childrens’ ears and
that they run when it sounds.
(Tr. 25,
26.)
She testified that
the siren sounds for two minutes and that it sounds once every
three days and sometimes twice a day.
(Tr.
31.)
Finally, Ms.
Tasic testified that the siren became louder after the District
attempted to baffle it and that there has been an increase in the
number of times that the siren has sounded because of new
development in the area
(Tr. 27.)
Mr. Dace has lived at 432 Concord Avenue since August 30,
1989.
(Tr.
33,
38—39,
41.)
Mr. Dace testified that when he is
outside gardening he has to go inside the house because the siren
noise
is extremely piercing.
(Tr.
37.)
Mr.
Dace added that he
has to discontinue telephone conversations when the siren sounds
because he cannot hear the conversation.
(Tr.
40.)
He stated
that the siren noise has increased since August of 1991, and
that,
from his back door, he can hear the air coming out of the
siren.
(Tr.
39.)
Mr. Dace testified that although there are
times that the siren does not sound for one week,
on average it
goes off every third day for approximately two minutes at a time.
(Tr.
40,
43, 50.)~
3At hearing,
Mr.
,
Dace
presented
a
tape
into evidence that
contained two sound recordings of the siren.
(Tr.
36-37,
44-45;
Compl.
Ex.
2.)
Mr. Dace first recorded the
siren at 9:30 am on
November 20,
1991,
from the ~amily room at the back of his house
when
the
windows
and
doors
were
closed.
Mr.
Dace’s
second
recording was taken at 5:20 pm on November 20,
1991,
in the same
location with the windows and doors open.
The Board has previously held that a key issue in admitting
audio tapes is “the accuracy of the homemade tape’s representation
of
actual
noise
levels
at
relevant
locations
on
complainant’s
property”.
Kvastak
v.
St. Michael’s Lutheran Church
(August
30,
1991),
PCB 89-182,
114 PCB 772.
The record contains no evidence
regarding the quality of the tape recorder that Mr. Dace used.
The
‘0135-0282
7
Social and Economic Value of Pollution Source~
As previously stated,
the record indicates that the siren is
used as
a tornado warning device and as an emergency warning
device for firemen
(Tr.
59-60.)
Mr. Kohlhase testified that the
siren is used because of the frequency of the daytime traffic on
Route 14,
especially during the rush hours in the morning and
afternoon.
More specifically, Mr. Kohlhase testified that there
has been an increase in traffic on Route 14
in the last several
years and that the siren helps in notifying motorists and
pedestrians that there will be emergency vehicle traffic in the
area in a short time.
(Tr.
60—61, 74-75,
see also 89,
90.)
Mr.
Kohihase added that the notification of motorists and
pedestrians,
in turn,
helps to reduce the District’s response
time because the motorists and pedestrians are on the look out
for firemen driving to the fire statiOn.
(Tr.
67.)
Mr. Kohlhase added that the siren is also used to notify any
volunteer firemen who might have missed their pager calls of an
emergency.
(Tr.
61, 71.)
In fact,
Mr. Kohlhase testified that,
in the two weeks prior to the hearing in this matter, there were
two instances where firemen did not receive a page from the
District but called in on their radios asking the location and
-nature of’the call because they heard the siren.
(Tr.
65.)
Finally,
Mr. Kohlhase testified that because the siren notifies
all available personnel, the District does not have to call for
-
assistance from a nearby community and thus, has a reduced
response time.
(Tr.
70.)
More specifically, Mr. Kohihase
testified that District personnel generally arrive at the fire
station within three minutes of a call and that,
in an ambulance
situation, District personnel have only four to six minutes to
get to a scene before irreversible brain damage occurs.
(Tr.
66—
67.)
If District personnel do not respond in three minutes,
Mr.
Kohlhase testified that the District would call for mutual aid
and that it would take an additional five minutes to for the aid
to respond and another five to ten minutes to for such aid to
arrive on the scene.
(Tr. 70.)
In addition to the above testimony,
Mr. Richard Stiller,
current president of the trustees and former Fire Chief for the
District, testified that the there have been instances that the
pagers have not worked.
(Tr.
90—91,
96.)
In addition,
Mr.
Stiller testified that because many of the District personnel are
carpenters,
electricians, and sheet metal men who work with
Board is therefore unable to determine the “accuracy” of the tape’s
representation of the noise
levels.
Accordingly,
the Board will
not admit the tape for the purpose of determining
noi’se levels on
Mr.
Dace’s
property.
The
Board,
however,
will
admit
the
tape
recordings
for
the
purpose
of
indicating
what. sounds
are being
0135-0283
8
concrete, compressors, and other noisy machinery, they either do
not wear the pagers or do not hear the pagers even when the
pagers are operational.
(Tr.
90-91.)
Finally, Mr. Stiller
testified that many of the District’s personnel were adamant
about keeping the siren and that,
as a result, he was concerned
of possible repercussions if the siren would no longer be used.
(Tr.
90.)
In economic terms, Mr.
Stiller testified that the District’s
current budget is $226,000 and that it would cost $25,000 plus
benefits to hire a full-time paramedic.
(Tr. 96.)
Mr. Stiller
added that,
as a result, the hiring of full—time personnel would
significantly impact the District’s budget.
(Tr. 96.)
Mr.
Stiller also testified that the District’s board is examining the
possibility of hiring full-time employees in the future as the
area grows.
(Tr. 92,
97.)
Suitability of the Pollution Source to the Location
Although the record indicates the siren is located within 50
to 75
feet of
a residential area
(i.e., the distance between the
first three residences on Concord Avenue and the siren), the
record also indicates that all of the daytime District personnel
live within five blocks of the main fire station,
and that the
siren
is an additional warning mechanism for them.
(Tr.
37,
65,
77; cornpl.
Ex.
1.)
In addition, the record indicates that the
District’s fire stations are only half a block off of a five lane
highway that splits the Village of Fox River Grove in half and
carries moderate to heavy traffic during the day.
(Tr. 59,
81,
82.)
As to
priority of location, the record indicates that the
siren has been located at the fire station for 25 years and that
Mr. Dace,
Mr.
Ireland, and Ms. Tasic have lived in the area for
no more than four years.
(Tr.
17,
24,
25,
29,
33,
38—39,
41,
60’,
88.)
Although both Mr. Ireland and Mr. Dace testified that they
were aware of the fire station and siren when they moved to the
area, they had never lived in areas where sirens were used for
emergency situations.
(Tr.
17,
42.)
Technical Practicability and Economic Reasonableness of
Reducing or Eliminating the Emissions
Although there are no specific details in the record, the
record does indicate the District unsuccessfully attempted to
baffle the siren.
(Tr.
15,
19,
20,
32,
35.)
In fact, both Mr.
Dace and Ms.
Tasic testified that the sound from the siren
increased after the District attempted to baffle the siren.
(Tr.
27,
39.)
33(c) (5)—Subseguerit Compliance
O135-Q28~
9
As previously stated, the record does indicate that
respondents unsuccessfully attempted to reduce the noise prior to
the filing of thecomplaint.
(Tr.
15,
19,
20,
32,
35.)
CONCLUSION
Although the testimony and evidence show that sound
is being
emitted from the District’s siren, the Board finds that the sound
does not constitute an unreasonable interference.
.The very
nature of the sound is to assist in the protection of the health,
general welfare, and physical property of the people within the
boundaries of the District.
In other words,
the sound from the
siren is not incidental to the siren being used for another
purpose.
Rather, the sound itself serves a public function and
thus, has a great social and economic value.
In fact,
Mr.
Ireland and Ms. Tasic testified that they would not want the
District to discontinue its use of the siren if it would have a
detrimental effect.
(Tr.
12,
13—14,
23,
26,
28,
33.)
Although we recognize that the siren is located near a
residential area, we do not find that the siren’s location is
unsuitable.
The siren has been located at its current site for
25 years and is near a five lane highway that divides the Village
of Fox River Grove and carries medium to heavy traffic during the
day.
Moreover, we have no evidence before us to demonstrate that
it
is technical feasible or economically reasonable to lower the
intensity of the siren.
There is also no evidence
in the record
that indicates that any lowering of the intensity of the siren
would allow the siren to function in a manner sufficient to warn
pedestrians, motorists, and District personnel of impending
emergencies.
As
a practical matter, District officials are in the best
position to balance the need for a specific siren with the rights
of nearby citizens.
Sirens should be sized and located with the
safety and welfare of
~jJ~
citizens in mind.
The evidence in the
,record does not support a finding that the intensity and duration
of the noise is harmful to hearing.
The District has taken
steps, albeit unsuccessful,
to mitigate the interference caused
by the siren.
We will not “second guess”
the District’s desire
to notify motorists and pedestrians of impending emergency
traffic, ensure notification all available district personnel, or
to reduce response time.
Based on an evaluation of all the evidence and the factors
enumerated in Section 33(c)
of the Act,
as discussed above,
the
Board finds that the noise emissions from the District’s siren
have not violated the Environmental Protection Act or
35 Ill.
Adin.
Code 900.102.
The above opinion constitutes the Board’s findings of fact
and conclusions of law in this matter.
0135-0285
10
ORDER
Based on an evaluation of the evidence and the factors
enumerated in Section 33(c)
of the Environmental Protection Act,
Ill.
Rev.
Stat.
1991,
111½, par. 1033(c), the Board finds that
Donald Kohlhase and the Fox River Grove Fire Protection District
have not violated Section 23 of the Environmental Protection Act,
Ill. Rev.
Stat.
1991,
ch.
111½, par.
1023,
and 35 Ill. Adm. Code
900.102.
This case is dismissed.
IT IS SO ORDERED.
Board Member 3. Theodore Meyer concurred.
Section 41 of the Environmental Protection Act,
Ill. Rev.
Stat.
1991,
ch.
111½ par.
1041, provides for appeal of final
Orders of ‘the Board within 35 days.
The rules of the Supreme
Court of Illinois establish filing requirements.
.(But’ see also
Castenada v. Illinois Human Rights Commission
(1989),
132 Ill.2d
304,
547 n.E.2d 437).
I, Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify that the above opinion and order was
adopted on the
~
day of
~
,
1992, by a
vote of
7—o
.
Il
Control Board
0 135-0286
