ILLINOIS POLLUTION CONTROL
March 11,
1992
MICHAEL
L.
CHRISTIANSON,
Complainant,
)
v.
)
PCB 90-59
(Enforcement)
THE AMERICAN MILLING CO.,
)
Res,pondent.
MICHAEL CHRISTIANSON APPEARED PRO SE;
MICHAEL C.
O’NEIL, KECK,
MAIIN
& CATE ON BEHALF OF RESPONDENT.
OPINION
AND
ORDER OF THE BOARD
(by M. Nardulli):
This
matter
is
before
the
Board
on
the
February
3,
1992
response
to complainant’s
proposed remedy
filed
by
respondent,
complainant’s February
24,
1992 reply
and respondent’s March
3,
1992 motion for leave to file reply instanter.
The filings in this
matter stem from the Board’s November
21,
1991 opinion and order
finding that respondent’s operations
at• its milling
plant
have
caused
“noise
pollution”
in
violation
of
Section
24
of
the
Environmental Protection Act
(Ill.
Rev.
Stat.
1989,
ch.
lii.
1/2,
par.
1024)
and 35
Ill.
Acim. Code 900.102.
Initially,
the Board will rule on respondent’s
“Motion for
Leave
to File Instanter and Reply
to Complainant’s New Factual
Allegations and Requests for Relief”.
A reply may only be filed
with leave of the Board to prevent material prejudice.
(35
Ill.
Adm. Code 101.241(c).)
Respondent argues that it should be allowed
to
reply
to
new
factual
allegations
and
requests
for
relief
contained in complainant’s February
3,
1992 reply to respondent’s
abatement
study.
Because the
Board agrees that complainant
has
raised new factual allegations and requests for relief, respondent
is granted leave to file its reply.
In
its
prior
opinion
and
order
the
Board
found
that
respondent’s activities
of pounding and hammering
on- trucks and
train cars, vibrators, idling of engines and banging of end loaders
unreasonably interfered with complainant’s use and enjoyment of his
property.
Due to
a
lack
of
evidence,
the Board
was unable
to
determine what abatement measures were technically practicable and
economically
reasonable.
However,
the Board
did
find that the
primary source of
interference was the pounding and hammering on
the
trucks
and
train
cars
and
that
it
was
economically
and
technically feasible to eliminate this noise source with
a
cease
and desist order.
To fashion a complete remedy, the Board directed
respondent to either file a written response to testimony gi’c’en by
131—03
2
Gregory
Zak
and
exhibits
prepared
by
Zak
suggesting
certain
abatement measures or to file .its own abatement study.
Zak, employed by the Illinois Environmental Protection Agency
to supervise noise at Superfund sites,
suggested certain remedial
action to reduce noise.
Zak testified that he drew up Exhibits 15
and
16 from a booklet he received from a seminar dealing with the
use of acoustic materials in solving noise problems.
(Tr.
503.)
His
suggestions
are
geared
toward
remedying
the
pounding
and
hammering and vibrator noise.
(Tr.
503-04.)
Zak suggested that
responde~itbuild two structures, one for trucks and one for train
cars, with an overhead door on both ends that would be closed after
the truck or train moved
in to unload.
(Tr.
505-06.)
Zak listed
building materials and suggested the
use
of 18-gauge corrugated
steel for the structures.
(Tr.
507;
Ex.
16.)
Zak estimated that
the costs
of the structure would
be $12,000,
based upon calling
various suppliers of building materials.
(Tr.
506; Ex.
15.)
Zak
suggests that abatement take place
in
at
least two phases with
phase
1
attempting
to
reduce
the most
objectionable
noise
and
successive
phases
to
remedy
remaining
problems.
(Tr.
504.)
Lastly,
Zak
suggested
that
the
muffler
on
the
end
loader
be
upgraded
to
a
“45
dB(A)
muffler”
at
•a
cost
of
“a
few
hundred
dollars.”
(Tr.
507.)
Respondent- has both replied to the Zak study and suggested its
own
remedy.
Respondent
asserts
that the
“Zak
study”
fails
to
demonstrate that the proposed remedy
is technically feasible and
economically reasonable.
(See Ill. Rev.
Stat.
1989,
ch.
111 1/2,
par.
1033(c)(4).)
Respondent
contends that
Zak’s
estimate that
construction would
costs
$12,000
is
“unsubstantiated
hearsay.”
Respondent also questions Zak’s suggestion that respondent install
a “45 dB(A) muffler”.
Respondent has proposed an alternative remedy.
Respondent has
begun to prepare for the construction of a single steel enclosure
for railcars and trucks as a result of its application to renew its
air permit.
Respondent suggests that this structure is designed
not only to reduce sound emissions, but it will also eliminate the
potential for air pollution caused by the delivery of
grain by-
products.
Respondent contends that the main distinction between
its proposed structure and the Zak structure
is that respondent
proposes a single 130-foot long building which would be double the
width
and
almost
twice
the
height
of
that
proposed
by
Zak.
According to respondent, because its building is larger than that
proposed by complainant, it will provide more barrier space between
the vehicle
and
the
walls
and,
therefore,
will provide
greater
noise abatement.
Respondent anticipates that construction would
begin in early spring and be completed by mid-summer.
Respondent
estimates the total cost to be $120,000.
Complainant
argues
that the
Zak proposal
is
preferable
to
respondent’s propcsal.
In particular, complainant does not approve
131—04
3
of the respondent’s
proposal because
it only
indicates
a plain
uninsulated, ungasketed structure and fails to indicate effective
design considerations such
as
fiberglass
bats
to
deaden
sound,
gaskets, the specific gauge of steel to be used, types of doors, or
a ventilation
system.
Complainant does not object
to use of
a
single
structure
if
it
is
properly
designed
and
constructed.
Complainant requests that respondent be required to hire an outside
consultant to design and oversee construction and that complainant
be
allowed to review any proposed plans.
The Board notes that
complainant ha~also raised allegations of continuing violations
which the Board has previously noted are properly the subject of a
new hearing.
To the extent that complainant has alleged irrelevant
facts such as the purchase of new property by respondent, the Board
need not consider such allegations
in determining a remedy.
While the single structure may be
acceptable,
the proposal
submitted by respondent fails to specify the type of material to be
used
in constructing the enclosure to ensure that noise will be
reduced to an acceptable level.
As complainant notes,
it does not
object to the use of
a single structure
if properly designed and
constructed.
However, the only information given by respondent is
the size and location of the building.
While respondent criticizes
the Zak study for lacking foundation,
the Zak study set forth the
building materials to be used which
is more than can be said for
respondent’s proposal.
Additionally, while respondent argues that
Zak’s statement that a “45 dB(A) muffler” would cost approximately
$200 is unsubstantiated, respondent did not introduce any evidence
as to the cost of such a muffler.
Given
that
respondent
has
failed
to
establish
that
its
proposal will achieve compliance with the Act and regulations, the
Board must fashion a remedy from the
information
in the record.
The Board
accepts
respondent’s
proposal
of
a
single
structure
building.
However,
respondent
is
directed
to
construct
the
interior and exterior of the building with materials equivalent to
those suggested in the Zak study.
(Ex.
16.)
While the materials
need
not
be
identical,
they
should
provide
sufficient
noise
abatement
such
that
respondent’s
activities
of
hammering
and
pounding
on
railcars
and
trucks
and
vibrator
noise
no
longer
unreasonably interfere with complainant’s use and enjoyment of his
property.
The doors of the structure must be closed when unloading
the
railcars
and
trucks.
Additionally,
the
Board
finds
that
installation of a “45 dB(A) muffler” would reduce end loader noise,
which
the
Board
previously
found
contributes
to
unreasonable
interference.
Based
upon
the
record,
the
Board
finds
that
installation
of
such
a
muffler
for
approximately
$200
is
economically
reasonable.
Construction
of
the enclosure
should
begin
as planned
in early spring and be completed no
later than
August
1,
1992.
The Board’s
cease
and
desist
order
regarding
pounding and hammering on the railcars and trucks remains in effect
until construction of the new structure is completed.
131—05
4
The
Board
declines to
impose
any penalty
at
this
time
as
requested by complainant.
The Board finds that while respondent’s
proposed remedy
is incomplete,
the Board’s prior order certainly
contemplated that respondent could propose an alternative remedy to
that
suggested
by
Zak.
The
Board
also
declines
to
retain
jurisdiction in this matter.
Complainant
is
free to file
a new
complaint
if
future allegations of non-compliance arise
and may
move the Board for incorporation of the record from the instant
docket.
Complainant is also free to pursue allegations of repeated
violations by filing a new complaint with the Board or by bringing
an actiob is circuit court to enforce the Board’s November 21, 1991
cease and desist order.
ORDER
Respondent
shall
construct of
a single structure enclosure
consistent with this opinion.
Construction must begin
in early
spring and be completed no later than August 1,
1992.
Installation
of a “45 dB(A)
muffler” on the end loader must also be completed no
later than August
1,
1992.
The doors of the structure must remain
closed when unloading railcars and trucks.
The Board’s cease and
desist order of November 21,
1991 remains
in effect until the new
structure is completed.
This docket is closed.
IT IS SO ORDERED.
Section
41
of the Environmental Protection Act
(Ill.
Rev.
Stat.
1991,
ch.
111
1/2,
par.
1041)
provides
for the
appeal
of
final Board
orders.
The Rules of the Supreme Court
of Illinois
establish filing requirements.
I,
Dorothy M.
Gunn,
Clerk of the Illinois Pollution Control
Board,
hereby certify that the above Opinion and Order was adopted
on the
/,‘~
day of
~—~-~--I-~
,
1992 by a vote of
7~
~
~.
~/
Dorothy M. G9$n,
Cler)~
Illinois Po~’)~kitionControl Board
131—06