ILLINOIS POLLUTION CONTROL BOARD
May 21,
1992
CARL MADOUX, ALICE MADOUX,
)
GLENN MOODY,
AND
MARGARET
)
MOODY,
)
Complainants,
)
PCB 90-148
)
(Enforcement)
v.
)
)
B
& N STEEL SERVICE CENTER,
)
INC.,
Respondent.
JAMES S.
SINCLAIR, STOBBS
& SINCLAIR APPEARED ON BEHALF OF THE
COMPLAINANTS.
PAUL H. LAUBER,
FARRELL & LONG,
P.C. APPEARED ON BEHALF OF THE
RESPONDENT.
INTERIM OPINION
AND
ORDER OF THE BOARD
(G.T.
Girard):
This matter comes before the Board on the August
6,
1990
formal complaint filed by Carl Madoux, Alice Nadoux, Glenn Moody,
and Margaret Moody (collectively, “complainants”)
against B
& M
Steel Service Center, Inc.
(“B
& N Steel”).’
The Board accepted
this matter for hearing on August 30, 1990.
The Board held a
public hearing on June 30,
1991 at Alton.
Members of the public
attended and participated at hearing.
The complainants filed
their post—hearing brief on August 12,
1991.
B
& N Steel filed
its response brief on September 5,
1991.
The Complainants filed
a reply brief on September 18, 1991.
The complaint alleged that B
& N Steel violated Section 24
of the Environmental Protection Act,
Ill. Rev.
Stat.
1989 ch.
111½, par.
1024,
in that noise from the operation of heavy
equipment and the dropping of steel pipe unreasonably interferes
with the use and enjoyment of the complainants’ properties and
with their enjoyment of life.
The complainants request that the
Board enter an order directing B
& N Steel to cease and desist
from all future violations and to alter its operations,
equipment,
or property in such a way as to reduce the noise
emissions to a “nonintrusive level”.
This case is a companion t~oMadoux v.
Straders Logging
and Lumber Mill,
PCB 90-149,
filed by the complainants that same
day for similar complaints against a neighboring lumber mill
facility.
Although the Board contemporaneously issues an interim
opinion and order
in that matter, each case is decided on its own
individual record.
13
3—4 3 7
2
FACTS
All four complainants testified at the public hearing.
Other local residents,
Mr. John Fleming, Mr.
Charles Zirges, and
Ms. Karron M. Bowman,
testified on behalf of the complainants.
Mr. Gregory T.
Zak,
a noise technical advisor with the Illinois
Environmental Protection Agency, testified under subpoena on
behalf of the complainants.
Mr. William Dittmar, President of B
& M Steel and a Worden resident, testified on behalf of B
& M
Steel.
SummarY Description of Setting
B
& H Steel operates a pipe mill on property it owns in the
south end of Worden,
in Madison County,
south and east of
Edwardsville Road (County Highway 46, which runs out of town to
the southwest),
along Sawmill Road,
a graveled side road.
B
& M
Steel receives 20 ton truckloads of steel pipe from LaClede Steel
at its facility.
B
& N Steel performs inspection and sorting of
that pipe for LaClede Steel and ships it back to the LaClede
Granite City mill under contract.
B
& M Steel resells the
rejected pipe to various other customers, primarily other steel
distributors.
B
& M Steel operates a pair of saws with which it
trims and bevels the ends for some customers.
B
& N Steel owns
three “Pettibone” front—end loaders2 and fork-lifts for handling
and transporting the pipe on the B
& N Steel premises and one
semi tractor and trailer for in— and out—bound transport of pipe.
Tr.
10,
92—93,
101,
176—81,
184—89
& 208—18;
Ex.
1—8,
14,
16, H
&
I.
There is a single building on the site in which B
& M Steel
performs the cutting and bundling operations.
B
& N Steel
performs the sorting on a rack outside the building and stores
bundled pipe outside in its yard.
B
& M Steel receives and ships
several loads of pipe each day.
At any given time,
there are
about 1200 tons of pipe in the B
& M Steel yard.
Tr.
176-81,
187
& 205—18;
Ex.
1—8
&
14—16.
B
& N Steel’s normal hours of operation vary, with different
operations occurring at different times and areas of the plant
through the course of a day.
Plant operations begin at about
7:00 a.m.,
and the first shift ends at about 3:30 p.m.
Work
continues with a second, part—time shift until about 10 p.m.
three days a week,
although the record also indicates that this
late work may be more frequent and may go on until midnight.
During the day B
& M Steel tends to perform its loading, sorting,
2
The record indicates that one of these three is not
operable.
Mr.
Dittmar, president of B
& M Steel,
testified that
he purchased one of these machines for spare parts,
and
it does
not operate.
Tr.
13
& 216; Ex.
14
& 16.
133—4
38
3
and other outdoors activities, while it performs cutting,
banding,
and other indoor activities in the evening.
The record
indicates that the outdoor activities may continue until as late
as 6:00 or 6:30 p.m.
Although B
& N Steel will not accept night
deliveries or make night shipments, hearing testimony indicates
that this activity can continue as late as 8:00 or 9:00 p.m.
B &
N Steel does not operate on Sundays,
and the occasional Saturday
work schedule appears shorter than that of weekdays.
Tr.
20,
29-
30,
64—65,
72—74,
89,
94,
102—03,
106,
115—18,
183—84
& 209; Ex.
16.
The B
& N Steel facility is located in an industrial area
that has been zoned and used for industrial purposes since some
time
in the l950s.
Prior occupants of the present B
& H Steel
site included a pallet mill and a trailer accessory manufacturer
(for about 10 years).
B
& N Steel has occupied this property and
engaged in this use since the fall of 1988.
For a short time in
1988 prior to occupying the present location,
B
& M Steel engaged
in pipe handling operations on an adjoining parcel about 100
yards to the east that is owned by a sawmill.
Tr.
21—22,
37,
48—
51,
57,
101,
114, 120,
133,
143,
176—77,
184, 188—89,
206;
Ex.
1,
D
&
I.
The Moodys’
and Madouxes’ homes are next door to one
another,
and they are located over 100 yards north and west of
the B
& M Steel property and mill building.
Their addresses are
on Edwardsville Road.
The Madouxes have lived at this location
since 1955.
Mr. Charles Zirges, who testified at hearing, built
the Moody home in 1970 and sold it to the Moodys later that year
when he moved into a new home across Edwardsville Road.
Originally zoned industrial when their houses were built, the
Nadoux and Moody properties have been zoned single family
residential since the spring of 1990 or 1991.
Other persons,
some of whom testified at hearing,
live in the immediate
vicinity.
The area does not, however, appear to have a high
residential density.
The record indicates that much of the
surrounding area is used for agricultural purposes and the
complainants’ and immediately surrounding lots are relatively
large.
Tr.
8—10,
32,
43—44,
47—49, 62—63,
92—93,
95,
99,
101,
110,
133—34
& 140—42; Ex.
1—8, H
&
I.
Sawmill Road is a gravel road.
It is presently the sole
route of ingress and egress for trucks to and from the B
& N
Steel plant.
At the time B
& M Steel commenced operations,
the
Village of Worden restricted truck traffic at the other end of
Sawmill Road, which leads directly into town.
Trucks from B
& N
Steel must enter Sawmill Road fro~ttEdwardsville Road, passing
through the intersection directly adjacent to the Madouxes’
I
33—439
4
home.3
The drive from the intersection to the B
& M Steel plant
is about four blocks.
Traffic on the gravel surface of Sawmill
Road raises dust.
B
& M Steel once attempted to purchase an
adjoining parcel to construct an alternative drive directly to
the highway that would not use Sawmill Road, but the owner would
not sell him the property.
Tr.
26—33,
52—56,
80—88,
110,
121—23,
202,
216—18
& 220—21;
Ex.
1,
D
&
I.
Facts re Interference
Mr. Madoux testified that B
& M Steel generates a lot of
impulsive,
“steel on steel” sounds.
His house is fully
insulated,
yet he can hear the sounds from inside his fully
closed house, and has “quite often” left his house to avoid the
sounds.
Tr.
13—14
&
18—19.
If the door to the B
& M Steel
building is open,
he can hear the indoor operations through the
evening——sometimes as late as midnight.
Tr.
20.
Mr. Madoux also
finds sounds of trucks on Sawmill Road annoying.
Tr.
29.
B
& N
Steel owns and operates a single truck.
Tr.
30;
Ex.
14.
Mr.
Madoux specifically testified that part of the annoyance is brake
sounds from the trucks stopping at the intersection, and he
specifically identified one such truck as bearing a B
& M Steel
logo on its side.
Tr.
29-30
& 58.
The local Property Tax Appeal
Board lowered the assessment of the Madoux home as a result of
the totality of the sounds in the area,
including those generated
by B
& M Steel.
Tr. 20-21;
Ex.
9.
Mr. Madoux made a tape recording of the sounds as audible
from the back porch of his home, on the side away from Sawmill
Road.
Tr. 24-25
& 59—60.
The hearing officer admitted this
exhibit over the general objection raised by.B
& N Steel.
Tr.
26.
Mr. Zak testified that he was familiar with the recorder
used and that that type of recorder is useful for indicating the
sounds in this type of case.
The recorder, which has automatic
level control, picks up the loudest audible sounds.
He listened
to the tape and visited the site.
He testified that the sounds
he heard on the tape were representative of those, he heard at the
site.
Tr.
152—54.
For the same reasoning enunciated in the companion case,
Madoux v. Straders Logging and Lumber Mill,
PCB 90—149, at 2—3,
the Board does not use this exhibit to indicate the levels of
noise experienced on the Madoux property.
Rather, we use this
tape to indicate the types of sounds audible.
Clearly audible on
this exhibit are metallic clanging sounds and diesel engine-like
sounds.
A bit less audible are small engine,
chain saw-like
sounds and railroad—like sounds.
~
This is also true of truck traffic to and from the
sawmill and a township garage located on this road.
13 3—440
5
Mrs. Madoux testified that B
& M Steel generates “banging
and clanging” sounds when pipe is picked up and when it is
dropped on the B
& N Steel property or when B
& M Steel places
it
on the sorting table.
She described these as an intermittent
“bang, bang,
bang” or “ping, ping, ping” sounds, depending on the
diameter of the pipe being handled.
The sounds are audible
throughout the closed house, depending on the pipe diameter.
She
also hears the revving Pettibone engine noise as these vehicles
handle the pipe.
Tr.
70-73.
She said that these sounds have
caused her to move the beds
in the bedrooms on the Sawmill Road
side of her house because her guests cannot sleep.
Her guests
are awakened very early when the mill begins operating the
Pettibones and dropping pipe.
Tr.
72.
She herself has been
awakened by the mill operations.
Tr. 72-73.
The sounds begin
between 7:00 and 7:25 a.m., and continue with variation
throughout the day until as late as 9:30 p.m.
Tr.
73-74.
The
sounds have interfered with her giving piano lessons to some
younger students who are startled by the sounds.
The sounds are
audible over the music the students play.
Tr. 74-75.
Mrs.
Madoux testified that she cannot use her yard and deck due to the
B
& M Steel sound emissions.
Tr.
75.
Sounds generated by trucks
bearing pipe stopping beside her house to check their loads have
annoyed her, but she could not specifically attribute these to
the B
& N Steel truck.
Tr.
80-82,
84
& 88.
Mrs. Madoux finds
the B
& N Steel sound emissions upsetting or very annoying,
and
would find them so even if the sawmill were absent.
She stated,
“There is no way you can survive with that kind of noise day
after day.”
Tr.
91.
Mr. Moody testified that he has problems with the sounds of
pipe hitting pipe and with truck sounds.
Tr.
102-03.
He is a
shift worker who tries to sleep until mid- or late—morning,
depending on the shift he has worked.
He testified that the
sounds from B
& M Steel have awakened him many times at 7:20 to
7:30 a.m.
The first sounds he hears are the Pettibones running,
then he hears the sorting of pipe.
He can hear when pipe is
placed on the sorting table and when pipe banding is cut and the
pipe is released to roll and drop on the racks.
He finds the
sounds annoying because they cause him to lose sleep and because
he cannot enjoy his yard.
He can hear the sounds with his house
closed up.
Tr.
105—08.
He testified that although the sawmill
and truck noises are annoying, they do not awaken him.
Tr.
108—
10.
The B
& M Steel sound emissions would annoy him even if the
sawmill were absent.
Tr.
111—12.
Mrs. Moody testified that loud sounds result when B
& M
Steel sorts pipe on its rack,
as ~ietalhits metal.
The problem
sounds originate from trucks’ brakes and air horns; the
Pettibones; and from dropping, moving, and sorting pipe.
The
sounds have awakened her.
She has found it necessary to move
from room to room within her house to obtain relief; she cannot
enjoy her yard;
and she has had to yell to converse outdoors over
1
‘33—441
6
the sounds.
Most of the problem sounds,
however, originate from
the pipe-on-pipe sounds.
Tr.
115-16.
Mrs. Moody can hear the B
& M Steel indoor operations, but the sounds are muffled when the
door tothe
B
& N Steel building is closed.
Every Monday
morning, her day off, the pipe sounds awaken her.
Further,
although she must arise at 3:30 a.m.
on days that she works, she
cannot go to sleep until late the night before
if B
& M Steel is
working late that evening.
Tr.
117-18.
The sounds have caused
her to start from her chair while watching television and to
leave the kitchen while doing dishes.
Mrs. Moody finds it
difficult to do housework due to the sounds, and once or twice a
week she finds it necessary to leave the house to regain her
composure because of the sounds.
She no longer wants to be
outdoors as a result.
Tr.
118—19.
When awakened by truck
sounds, she has identified the offending truck as bearing the B
&
M Steel logo,
but other non-B
& N Steel trucks have annoyed her.
Tr.
120—24.
Corroborating the testimony of the complainants is the
testimony of other area residents and one former resident.
John
Fleming, who lives due north of B
& N Steel,
north of Sawmill
Road,
testified that the sounds are a
loud, metallic, frequent,
and regular, but not constant.
They have awakened him on
Saturday mornings.
He has heard them from a farm he owns a mile
away.
He finds them very annoying, and he has gone indoors when
weary of hearing them, where he can still hear them.
Tr.
63—65.
The sounds get on his nerves.
Tr.
67.
Charles Zirges, who lives
across Edwardsville Road from the Moodys, has found the sounds
annoying.
The sounds are intermittent, and their amount depends
on the size of the pipe being handled.
He has heard the sounds
from B
& H Steel in the evenings, and as emanating from the B
& N
Steel building as late as
9 or 10 p.m.
Tr.
93—94.
Mr.
Zirges’
solution to the sounds
is to leave his home to avoid them.
Tr.
95—96.
Karron Bowman,
a former resident across the highway from
the Nadouxes and Moodys,
found the sounds annoying and decided to
move as a result.
Tr.
143—44.
Her house sold for $4000 less
than its appraised value of $62,000.
Tr.
146—47.
She has since
returned to the area to visit former neighbors and found the
sounds the same as when she resided there.
Tr.
145.
ANALYSIS
This is
a “nuisance noise” action under 35
Ill. Adm. Code
900.102 and Section 24 of the Act,
Ill. Rev.
Stat.
1989,
ch.
111½, par.
1024.
Therefore, the complainants do not rely on
numerical quantification of the noise to prove a violation.
Such
quantification is immaterial
in determining whether such a
violation has occurred.
Ferndale Heights Utilities Co.
v.
Illinois Pollution Control Board,
44
Ill.
App.
3d 967,
358 N.E.2d
1224,
1228
(1st Dist 1976).
The Act prohibits “nuisance noise”,
1 33—442
7
regardless of any quantification of the noise.4
Section 24 of
the Act prohibits noise pollution as follows:
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.
Ill.
Rev. Stat.
1989,
ch.
111½, par.
1024.
Thus, under the Act, the respondents have caused a noise
violation if the complainant has proven that B
& M Steel’s noise
emissions have unreasonably interfered with the complainants’
enjoyment of life or with their pursuit of any lawful business or
activity.
The issue in any “nuisance noise” enforcement proceeding is
whether the sounds have caused unreasonable interference with the
complainants’ enjoyment of life or lawful business or activity.
Unreasonable interference is more than an ability to distinguish
sounds attributable to a particular source.
It is also more than
“annoyance” due to the sounds, which is too subjective.
Rather,
the sounds must objectively effect the complainant’s life or
business activities.
See Kvatsak v.
St. Michael’s Lutheran
Church, PCB 89—182,
114 PCB 765,
773
(Aug.
30,
1990); Kochanski
v. Hinsdale Golf Club,
PCB 88—16, 101 PCB 11, 20—21
(July 13,
1989),
rev’d on other grounds,
197 Ill. App.
3d 634,
555 N.E.2d
31
(2d Dist.
1990).
As a preliminary matter, the Board notes that some of the
problems and annoyance experienced by the complainants results
from trucks on Sawmill Road,
from the nearby sawmill, and from
airborne dust.
Tr.
33,
59—60,
82
& 126—28;
Ex.
11
(tape of local
noise); ~
Tr.
51-52
(smoke from alleged open burning by
~
The complaint alleges only a violation of Section 24 of
the Act.
The Board’s Noise Pollution Control rules similarly
prohibit “nuisance noise”.
Board rule 900.102 provides as
follows:
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.
35 Ill. Adm. Code 900.102
(1991).
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. Adm. Code 900.101
(1991).
133—443
8
sawmill).
The complainants made no air pollution claims.
Therefore,
airborne dust is not a matter for consideration in
this proceeding.
Similarly, there are noises generated in the complainants’
area that are not attributable to B
& M Steel operations.
These
include the noises from saws and chippers or debarkers in use at
the neighboring sawmill and trucks not clearly owned or operated
by B
& H Steel on Sawmill Road.
Tr.
32,
58,
66,
71—72,
78—88,
97,
102,
109—10,
115,
& 121-24.
Sounds generated by trucks or
other sources in the area that are not under the control of B & N
Steel are irrelevant.
Unreasonable Interference
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 rules.
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); ~
Ferndale Heights Utilities,
44
Ill. App. 3d at 967—68,
358 N.E.2d at 1228.
Those 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
(v)
any subsequent compliance.
Ill. Rev. Stat.
1989,
ch.
111½,
par. 1033(c), as
amended by PA.
86—1363,
§ 2002,
1990 Ill.
Legis.
Serv.
1979,
1989 (West),
effective Sept.
7,
1990.
The Board now turns to consideration of each of these mandatory
factors in determining whether the interference suffered is
unreasonable.
133—444
9
Character and Degree of the Iniurv or Interference
In considering the injury or interference suffered by the
complainants, the Board does not ignore the fact that there is
noise from other sources in the area.
This background noise
is
relevant in determining whether the B
& M Steel sound emissions
are unreasonable.
Specifically,
in consideration of the
character or degree of injury or interference suffered by the
complainants from the B
& N Steel sound emissions, the issue
is
whether the testimony clearly indicates that it is those sounds,
and not the background noise, that causes the interference.
Review of the witnesses’
testimony indicates that though the
witnesses indicated annoyance or interference due to the
background noise in the area,
each also clearly identified
particular B
& M Steel sound emissions with particular instances
of interference.
As outlined in the factual discussion,
B
& M
Steel sound generation has deprived the complainants of sleep,
curtailed the enjoyment of their yards,
and, to some extent,
upset the enjoyment of their homes at various times.
Additionally, the sounds have impinged on Mrs. Moody’s ability to
teach piano, although she appears able to continue teaching and
did not testify as to any loss of students.
Mr.
Zak testified that he has worked on several nuisance
noise situations.
He testified that this case is different than
other situations in that no witness ever testified to hearing the
offending sounds from a mile away, as did Mr.
Fleming.
Tr. 155-
58; see Tr.
64.
Social or Economic Value of the Source
The record indicates that B
& N Steel is of significant
social and economic value to the community.
B
& M Steel
is a
profitable business and provides jobs to 13 workers who live
within
a 15 mile radius of the plant.
Its payroll of about
$350,000 and pension plan contributions of about $50,000 per year
are beneficial to the local economy.
B
& N Steel makes cash and
non—cash charitable donations to the local community, such as the
use of equipment,
labor, and materials.
It contributes about
$3300 as real estate taxes,
$3500 in road use and local business
taxes,
$4800 as unemployment taxes,
$83,000 as federal income
taxes, and $11,000 to $12,000 for state income taxes each year.
Tr.
196—99
& 219—20.
Suitability or Unsuitability of the Source
On the one hand, the record indicates that the land upon
which
B
& M Steel is located has been zoned for industrial
purposes since before the complainants moved to the area.
In
fact, the complainants’ homes were built on industrially—zoned
land,
and they are
in an area that is surrounded by industrial
33—445
10
and agricultural lands which are not heavily populated.
The
record indicates that their properties were part of this
contiguous industrially-zoned area all the way until within the
last year or two.5
Further, at least one other parcel in the
immediate area,
that owned and used by the sawmill,
is used for
an offensive sound—generating industrial purpose.
As stated by
Mrs. Moody:
I realized that we live in an industrial area
.
It’s always been an industrial area.
There has been
industry there forever
.
Tr.
133.
The sawmill and truck traffic on Sawmill Road generate dust
and sounds that could somewhat inhibit the complainant’s use of
their yards or their opening their homes without regard to any
mitigation efforts by B
& N Steel.
Virtually all the local
resident witnesses testified negatively with regard to this
background noise and dust.
Tr.
26—33,
51—53,
58,
60—61, 66—67,
71—72,
78—88,
102,
109,
115,
123—28
& 138.
Mrs. Madoux testified
that the dust in the area inhibits her use of her yard.
Tr.
82.
Mr. Moody testified that the sawmill dust and noise contribute to
his inability to enjoy his yard.
Tr. 110.
Mrs. Moody similarly
stated that the sawmill and road dust contribute to the problem
of using her yard,
and she further testified that there would be
a problem even in the absence of the
B
& H Steel sound emissions
due to the industrial nature of the area.
Tr.
123-25.
On the other hand,
the present reality (without regard to
the former zoning status of the complainants’, parcels)
is that B
& M Steel is located on land abutting the complainants’
(presently zoned) residential properties and those properties
were in residential use long before B
& M Steel commenced its
operations.
Further, the record indicates that B
& M Steel sound
emissions are distinctive and especially bothersome to the
complainants and other local residents——over and above the dust
and any background noise.
Mr. Madoux testified that he had no problem with noise in
the past.
Tr. 21-22
& 49-51.
Mrs. Madoux did not find the truck
noise as offensive as the mill noise.
Tr.
81—82.
Mr. Zirges
testified that the neighborhood was quiet
in the 1970s
(despite
the existence of a sawmill and industry at that time).
Tr.
95.
Mr.
Moody testified that thG other area noises have not awakened
him, just the B
& M Steel pipe sounds.
Tr.
109-10.
Mrs. Moody
~
However, the record
in the companion case indicates
otherwise,
that the complainants’ parcels are presently zoned
industrial.
~
Madoux
v. Straders Logging and Lumber Mill,
PCB
90—149, at
1
&
n.
2.
I 33—446
11
stated that the other noises have not awakened her, that the
greatest part of the problem in the area is sounds from the B
& M
Steel pipe handling,
and that the noise problem has worsened as B
& H Steel’s business increases and it handles more pipe.
Tr.
115-16
& 120.
Corroborating this is the testimony of Ms. Bowman
that she decided to move on a day when the pipe sounds were
especially bad and that there were no noise problems before B
& N
Steel commenced operations.
Tr.
144.
The record includes facts that could disfavor a finding of
unreasonable interference.
Foremost, mitigating the sounds
generated by B
& M Steel would not eliminate all interference in
this area.
Also,
B
& M Steel is located on industrial
land,
and
it
is at least partly surrounded by industrial and agricultural
land.
Technical Practicability and Economic Reasonableness of Control
The focus of inquiry into the technical practicability and
economic reasonableness of control
is what can be done about the
purportedly offensive sounds.
This contrasts against the focus
of inquiry into any subsequent compliance, which is what has been
done about the purportedly offensive sounds.
Mr.
Zak and Mr. Dittmar were the principal witnesses with
regard to corrective measures.
It is possible to separate the
testimony into two categories relating to solutions to specific
problem areas:
mobile pipe handling equipment problems and pipe
inspection and handling (pipe striking pipe,
impulsive sounds)
problems.
Pipe Handling Mobile Equipment Sounds
The record includes some indication of a way to diminish
pipe handling equipment sound emissions.
However, the record
information is of a general nature.
Mr.
Zak testified that engine exhaust mufflers are
commercially available for equipment of the type operated by B
&
N Steel.
He said that equipment manufacturers install original
mufflers that comply with the OSHA standard of 90 dB, which is
higher than the state standard of about 60 dB.
Tr.
170;
~
35
Ill. Adm. Code 901.102(a) (indicating actual limitations
in dBA).
In his experience,
their use has proven effective in the past
without a detrimental effect on the equipment retrofitted with
them.
He testified that he checked to approximate the cost of
such mufflers.
Their cost depended on the particular use
133—447
12
specification, but it was about $350 to $400 each.6
He believed
one of these after—market mufflers’ would reduce the sound
emissions by 35 to 45 dBA.
Tr.
157,
159—61
& 170—71.
B
& N
Steel presented nothing for the record that would indicate that
such a retrofit is not possible.
Pipe Handling Sounds
The record includes information on possible control of pipe
handling (impulsive)
sounds generated by B
& M Steel operations.
However, the record is not sufficiently complete to permit more
than preliminary conclusions with regard to the technical
practicability and economical reasonableness of any specific
methods of controlling the pipe handling sounds.
Mr.
Zak testified based on his experience about control
measures used in similar situations for controlling impulsive,
metal-on-metal sounds.
Mr.
Zak testified that enclosing the
sound source or modifying operating procedures were two effective
ways to diminish the emissions of such sounds.
Tr.
155-56
&
158.
He said that the normal approach is to use acoustical enclosures
to the extent this is possible.
Tr.
161—63.
Based on this,
Mr.
Zak. suggested that B
& N Steel could construct for about $18,428
a steel building 56 feet wide,
153 feet long,
and 18 feet high
with two 24 foot long doors to enclose its inspection
arid sorting
rack.
He suggested it was desirable to cover the interior walls
of this building with half—inch drywall under three and a half-
inches of fiberglass insulation that is protected from abrasion
with poultry netting.
His estimate for the total cost of such an
enclosure was about $23,766.
He suggested similarly covering the
interior walls of the existing building with fiberglass
insulation and poultry netting, for an estimated cost of about
$6960.
Tr.
161-64.
He believed, based on his prior experience
that these measures and keeping the building doors closed would
satisfy the local residents by mitigating the impulsive sound
emissions.7
Tr.
168.
6
Mr.
Zak’s testimony is based on the assumption that B
& M
Steel would need to retrofit five pieces of equipment:
three
Pettibones and two forklifts.
See Tr.
159-60; Ex.
14
&
16.
The
complainants’ testimony, however, focused on the sound emissions
of the “Pettibones”.
Further, Mr. Dittmar testified that B
& M
Steel uses only two of these vehicles because one is used for
spare parts.
Tr.
216
~
Mr.
Zak characterized these as least—cost measures.
He
testified that a noise consultant would likely recommend measures
costing five to ten times more.
Mr.
Zak would be reluctant to
recommend corrective measures that cost
B
& M Steel $200,000 to
$400,000.
Tr.
173—74.
133—44
8
13
B
& N Steel presented no detailed evidence to the contrary
at hearing.
Rather,
Mr.
Dittmar testified in generalizations.
He asserted without elaboration that his plant premises do not
have sufficient room for a new building and that use of such a
building would prove too restrictive of B
& M Steel plant
operations.
Tr.
205—06.
He also testified, however, that
performing the pipe sorting inside is possible.
Tr.
219.
Further, B
& N Steel argues in its post-hearing brief without
providing evidence that Mr.
Zak’s estimates ignore the cost of
installation and are,
therefore,
low by half.
The impulsive sounds from pipe handling are the most
interfering sounds emitted by B
& M Steel.
The estimated cost to
correct sounds is about $30,726.
However, this estimated cost of
compliance is, concededly,
a “least cost” alternative presented
by Mr.
Zak.
Further, Mr. Dittmar briefly testified that he could
not construct another building at his plant and continue the
present mode of operations.
He did not elaborate,
so there is
nothing in the record that would indicate the nature of the
operational disruption or whether some operational accommodation
is possible.
The record does not indicate any alternative
methods or enclosures that B
& N Steel could employ.
Any Subsequent Compliance
There is not much to consider with regard to what has been
done to control sound emissions.
Mr. Dittmar testified that he
tried to buy land for an alternative driveway, but the owner
would not sell.
Tr. 202.
He also testified that he had once
planned evergreen plantings to mitigate the sound emissions.
Tr.
202
& 222.
He stated that he located his building on the
portion of his property farthest from the complainants’ homes.
Tr.
185.
The record indicates that Mr. Dittmar did not respond
to local residents’ complaints over the sound emissions from the
B
& N Steel plant.
Tr.
22—23,
108,
119,
147
& 192; Ex.
10
&
C.
The record does not indicate any further compliance efforts to
this day.
The record does not indicate subsequent compliance as
of this day.
CONCLUSION
After consideration of the facts and circumstances of
record, and in light of the Section 33(c)
factors, the Board
finds that B
& N Steel caused the emission of noise onto the
complainants’ residential lands that unreasonably interfered with
the complainants’ enjoyment of life and property and their
pursuit of lawful business or activity.
B
& N Steel thereby
violated Section 24
of the Envirohmental Protection Act,
Ill.
Rev.
Stat.
1991 ch.
111½, par.
1024.
133—449
14
REMEDY
The record indicates certain activities that B
& N Steel
could possibly undertake to mitigate its noise emissions to
reasonable levels.
These would include retrofit exhaust gas
mufflers for all pipe handling mobile equipment used in the
plant.
They would include constructing a building enclosure for
the pipe inspection and sorting rack that is insulated to reduce
internal reverberations and the similar insulation of the
existing building.
These measures would finally include
minimizing the time the building doors are open during noise-
producing operations.
On the other hand,
the record is not complete and contains
fragmentary and conflicting information with regard to other
possible methods for controlling the noise emissions.
For
example,
B
&.
N Steel disputes the cost and practicability of
enclosing the pipe sorting rack and insulating the buildings.
However,
B
& N Steel has provided no information to substantiate
its claims.
For the foregoing reasons, the Board will order B
& H Steel
to study alternatives for controlling specific noises generated
by its operations.
The Board will require B
& N Steel to submit
a plan indicating the steps it will take on a specific timetable
to bring its operations into compliance with the Act.
After the
Board has reviewed the plan submitted by B & H Steel, we will
issue a final order in this matter.
The foregoing constitutes the Board’s interim findings of
fact and conclusions of law in this matter.
ORDER
1.
The Board hereby finds that B
& N Steel has violated
Section 24 of the Environmental Protection Act.
2.
B
& N Steel shall prepare a report of all measures,
including reasonable alternative measures, that it believes
would be effective to reduce the noise emissions from its
“Pettibone” front end loaders and from its pipe handling
operations.
B
& M Steel shall include in this outline the
costs associated with implementing each measure or
alternative measure, the time it would take to commence and
complete implementation of each measure or alternative
measure, and the estimated reduction in noise emissions that
each measure or alternative measure would achieve.
3.
B
& M Steel shall file its report with the Board and
serve a copy on the complainants no later than September
1,
1992.
The complainants may file a response on or before
October
1,
1992.
I 33—45()
15
I, Dorothy N.
Gunn,
Clerk of the Illinois Pollution Control
Board, do hereby certify that the above interim order was adopted
on the
~
of
.-“~
&)
,
1992, by a
vote of
7”(’
.
//~_
(
..,
~/
/~~
Dorothy N.
.,13/mnn, Clerk
Illinois ~o,1lutionControl Board
133—45 1
