flt31~’~UOF~

ILLINOIS POLLUTION CONTROL BOARD

October 29,

1992

RONALD E. TEX and

SUSAN D. TEX,

)

Petitioners,

v.

)

 PCB 90—182

(Enforcement)

S. SCOTT COGGESHALL and

)

COGGESHALL CONSTRUCTION

COMPANY,

)

CHESTER BROSS, MIKE BROSS,

)

JEFF BROSS and CHESTER BROSS

)

CONSTRUCTION

COMPANY,

Respondents.

JANE

HARTLEY

 PRATT APPEARED ON BEHALF OF COMPLAINANTS

JAMES LLOYD APPEARED ON BEHALF OF RESPONDENT,

 COGGESHALL

CHARLES R. SVOBODA APPEARED ON BEHALF OF RESPONENT,

 BROSS

OPINION

AND

ORDER OF THE BOARD

 (by G.

T.

 Girard):

This matter

 is before the Board on the October

4,

 1990,

formal complaint filed by Ronald and Susan Tex (complainants)

against

S.

 Scott Coggeshall and Coggeshall Construction Company

(collectively Coggeshall)

 and Chester, Mike and Jeff Bross and

Bross Construction Company (collectively Bross).

 Public hearings

were held in Macomb,

 Illinois on August 26,

 1991,

 January

8,

1992,

 and January

9,

 1992,

 at which no members of the public

 attended.

The Bross respondents failed to participate at the

January hearings nor did they file a post-hearing brief.

FACTS

Since

 1980, complainants have resided in a single—family

dwelling at 2001 West Jackson Street,

 Macomb, Illinois.

Complainants’ residence is located on Lot G of a parcel of

property owned with James Tex, brother of Ronald Tex.

 (Tr.

8/26/92 at 29-31.)

 Other

 lots surrounding the Tex property

include James Tex’s residence,

 the Busby rental residence and two

lots containing rental storage facilities.

 (Tr. 8/26/91 at 30—

32, 79.)

 At one point,

 a motel was located on Lot A.

 (Tr.

8/26/91 at 79.)

 Complainants obtained a special use permit to

erect their home on property zoned B—2 business by the City of

Macomb.

 (Tr. 8/26/91 at 89.)

 Complainants’ property is

surrounded by an Elks Club,

 storage facilities, the Coggeshall

Construction Company,

 a lumber yard,

 a gas company and

 a salvage

yard.

 (Tr.

 8/26/91 at 30—37,74,

 80; Comp.

Ex.

2.)

flt31~’~UOF~

In 1985, Coggeshall Construction Company purchased an

asphalt plant located in Dallas Texas, disassembled that plant

and moved

 it to its current location in Macoxnb.

 (Tr.

 1/9/92 at

 223.)

 The asphalt plant is located approximately 390 feet from

complainants’ residence.

 (Tr.

 8/26/91 at 32; Comp.

Ex.

2.)

Scott Coggeshall owns the property where the asphalt plant is

located and Coggeshall Construction Company owns the plant

itself.

 Coggeshall Construction Company operated the plant until

a management and purchase agreement was entered into with Bross,

who then operated the plant from September of 1989 through

January

7,

 1992.

 (Tr. 1/8/92 at

9;

Tr.

 1/9/92 at 213,

 221,

 262,

291-92; Resp.

Ex.

 10.)

 Coggeshall Construction Company is also

engaged in the business of road construction.

 (Tr.

)

Ronald Tex and Susan Tex testified that the noise from the

asphalt plant vibrates the windows and floors and moves pictures

and breaks glass in their home.

 (Tr. 8/26/91 at 42,

 120.)

The

noise was described as “whining, roaring,

 a churning of

machinery,

 generators and diesel engines” and as sounding “like a

train.”

 (Tr. 8/26/91 at 37—38,

 105—06,

 108.)

 According to

Ronald, there

 is noise whenever the plant is operating and the

noise varies from intolerable to extremely intolerable.

 (Tr.

8/26/91 at 39.)

 His children cannot tolerate the noise and

cannot sleep when the plant is operating.

 (Tr. 8/26/91 at 41.)

Ronald testified that he cannot use his backyard when the plant

is operating.

 (Tr. 8/26/91 at 47.)

 Susan testified that she

cannot sleep,

 that she and her daughter have headaches and she

cannot entertain outdoors both because of the noise and dust

emanating from the plant.

 (Tr. 8/26/91

 107,

 111,

 115.)

 The dust

from the plant covers everything,

 it stinks and burns the eyes.

(Tr. 8/26.91 at 113-18.)

 Ronald testified that the noise occurs

from sun-up to sun—down except on Sundays.

 (Tr. 8/26/91.)

 Susan

testified that the noise begins anywhere between

 7 a.m. to 10

a.m.

 (Tr. 8/26/91 at 112—113.)

 Both Ronald and Susan testified

that neither the trains nor salvage yard near their property

bother them.

 (Tr. 8/26/91 at 97—100,

 140—42.)

 Ronald testified

that the noise makes him irritable, he suffers more stress and

that it has affected his entire lifestyle.

 (Tr. 8/26/91 at 39.)

Relatives, neighbors and acquaintances of complainants

substantiated the Texs’ testimony (Tr. 8/26/92 at

178,187,207,221),

 including James Tex brother of Ronald Tex who

lives on property adjacent to complainants.

Perry Cale,

 owner of the tow service and salvage yard north

of and adjoining complainants’ property, testified that he

purchased his property from complainants in 1976.

 (Tr.

 1/9/92 at

207.)

 Cale testified that his salvage yard is zoned 1—2

industrial by the City of Nacomb.

 (Tr.

 1/9/92 at 207.)

 Cale

testified that he operates his tow service and salvage yard six

days a week from

8

 a.m. to

 5 p.m. unless

it

 is summer and then he

is usually “crushing cars until it is dark”.

 (Tr. 1/9/92 at

208.)

 Cale describes his business as including the gasoline

engine powered crusher as well as two forklifts and several

trucks.

 (Tr.

 1/9/92 at 208—209.)

 Cale testified that his

0)37-001

3

property is approximately 900-1000 feet from the Coggeshall plant

and that he has never observed any vibrations from the plant.

(Tr. 1/9/92 at 210.)

 Cale further testified that he has not had

any problems with noise from the Coggeshall plant and does not

have any problem conversing when the plant is operating.

 (Tr.

1/9/92 at 210—11.)

Monty DeCounter, president and owner of Western Illinois

Equipment John Deere Dealership,

 testified that he had operated

his equipment repair business from 1986 to 1990 on property which

adjoined the Tex’s to the south and the Coggeshall property to

the north.

 (Tr.

 1/9/92 at 277-278.)

 DeCounter testified that he

had no problems conversing with his employees or customers

 because of the noise from the plant even though his building was

250 to 300 feet from the Coggeshall plant.

 (Tr. 1/9/92 at 280.)

DeCounter further testified that he did not observe any noise

vibration from the asphalt plant.

 (Tr. 1/9/92 at 280.)

ALLEGED VIOLATIONS

The complaint alleges that respondents have violated

Sections 23 and 24 of the Environmental Protection Act

 (Act)

prohibiting noise pollution.

 (Ill.

 Rev. Stat.

 1991,

ch.

 111 1/2,

pars.

 1023 and 1024.)

 Although the complaint does not

specifically allege numerical violations of the Board’s noise

regulations

 (35 Ill.

 Adm. Code 900 ~

 ~q.)

 testimony presented

at hearing by Gregory Zak on behalf of complainants pertains to

numerical noise violations.

 Complainants’ post—hearing brief

argues both a noise nuisance violation and a numerical noise

violation as well as requesting relief from both alleged

violations.

 Coggeshall has not objected to the allegation of a

numerical noise violation and in fact, presented testimony and

arguments regarding a noise study performed by it.

 Therefore,

the Board will construe the arguments presented as an amendment

to the complaint’ address whether complainants have established a

noise nuisance violation and a numerical noise violation.

On November 29,

 1990, the Board entered an order construing

complainants’ response to Scott Coggeshall’s motion to dismiss as

a request to amend the complaint to add an allegation regarding

dust pollution in violation of Section 9(a)

 of the Act.

 In its

post-hearing brief, complainants ask that the Board find

respondents

 in violation of Section

 9 of the Act and Sections

201.121, 201.141 and 212.301 of the Board’s air regulations.

The

language of the brief appears to indicate that petitioner is

attempting,

 at the briefing stage, to allege numerical violations

of the Board’s air regulations.

 However, Section 201.121 merely

provides that a permit is not a defense to a violation of the Act

See

Ill.

Adm.

Code

103.210

0~37-0015

4

or regulations.

 Section 201.121 does not prohibit or limit

emissions in any way.

 Therefore,

 respondents cannot be

in

violation of this regulation.

 Additionally, although Section

201.141 prohibits air pollution and Section 212.301 prohibits the

emission of fugitive particulate matter, complainants failed to

present any evidence that the testing procedures outlined in Part

212 were followed in an attempt to show that respondents are in

violation of any limitation in the Board’s air regulations.

Therefore, the Board will only address whether complainants have

established an air nuisance violation.

Finally,

 in their post—hearing brief complainants allege

that the emissions from the asphalt plant constitute odor

violations in violation of Section

 9 of the Act and Sections

201.102 and 201.141 of the Board’s air pollution regulations.

Section 201.102 does not prohibit air pollution, but merely

defines it such that respondents cannot violate this regulation.

As to the allegation that the odor violates the prohibition

against air pollution in Section 201.141, complainants cannot

raise such an allegation for the first time in their brief.

While some testimony was given as to the odors emanating from the

plant,

 complainants were never given leave to amend their

complaint,

 as was done with the dust pollution allegation,

to

include alleged odor violations.

 Therefore,

 the Board finds that

the allegation of odor pollution, raised for the first time in

complainants’ post—hearing brief,

 is not before the Board.

ANALYSIS

Numerical Noise Violation

Section 901.102(a) provides that no person shall cause or

allow the emission of sound during daytime hours from property

located on any Class A,

 B or C land to receiving Class A land in

excess of certain enumerated allowable octave band sound pressure

levels.

 The parties disagree as to the proper classification of

complainants’ property.

 The regulations adopt

 a standard land

use coding manual

 (SLUCM).

 (35 Ill. Adm. Code Subtitle H

 Appendix B.)

 Complainants contend that their property should be

classified as Class A such that the asphalt plant would be in

violation of the allowable limits applicable to emissions from

Class C land to Class A land.

 Coggeshall argues that

complainants’ property should be classified as Class B land and

that based upon the limits imposed between Class B and Class C

land,

 complainants have failed to establish a numerical

violation.

Gregory Zak, noise technical advisor for the Illinois

Environmental Protection Agency

 (Tr.

 1/8/92 at 25) testified that

in the early 1970’s he was “involved and had input into the

standard land use coding system.”

 (Tr.

 1/8/92 at 27.)

Zak

37-0016

5

testified that the SLUCM classifies property by use as opposed to

local zoning and that, generally, Class A land is residential,

Class B land is commercial and Class C land i~’heavy industrial.

(Tr. 1/8/92 at 28.)

 Zak opined that the Coggeshall plant would

fall under the category of “paving mixtures and blocks—

manufacturing” and, therefore, be classified as Class C land.

(35 Iii. Adm. Code 901.101(a)

 Appendix B at B—6 Code 2921.)

Zak

also opined that complainants’ property

 Lot G)

 is a

“household unit” entitled to Class A protection

 (35 Iii.

 Adm.

Code 901.101(a)

 Appendix B at B-i Code 1100).

 (Tr. 1/8/92 at 79—

80.)

Paul Ziegler,

 zoning officer for the City of Macomb,

testified on behalf of Coggeshall.

 Ziegler testified that the

Coggeshall plant is zoned 1-2

 industrial,

 complainants’ property

is zoned B—2 business and the surrounding property

 is zoned 1—2

and B—2.

 (Tr. 1/9/92 at 192—94,

 197; Resp.

Ex.

5,

6.)

Jim Powers, an electrical engineer, testified that he

performed a sound emissions study at the Tex/Coggeshall property

line.

 (Tr.

 1/9/92 at 231.)

 Powers opined that the Tex property

(Lot G)

 is Class B land and the Coggeshall plant

 is Class C land.

(Tr.

 1/9/92 at 234—36.)

George Potter,

 a retired real estate appraiser and

professor, testified that he was familiar with the property in

question and the SLUCM.

 (Tr. 1/9/92 at 201.)

 Potter opined that

the Coggeshall plant

 is Class C land and the Tex property

is

Class B land.

 (Tr.

 1/9/92 at 201—02; Resp.

 Ex 9.)

 Potter

testified that the Tex property fell under the category of “other

dwelling and building services not elsewhere classified”.

(35

Ill. Adm. Code 901.101(b) Appendix B at B-17 Code 6349.)

 Potter

also testified as to the difference between real and personal

property and that, under Paragraph 71-1 of the Criminal Code of

1961

 (Ill. Rev.

 Stat.

 1991,

ch.

 38, par.

 71—1),

 the personal

property located on the Coggeshall property is construction

equipment.

 (Tr.

 1/9/92 at 202-05; Resp.

Ex.

9.)

In adopting the Standard Land Use Classification Manual, the

Board stated the following:

This rule provides the basic differentiation between land

uses of varying noise sensitivity, classifying land uses

both as potential noise emitters and noise receivers.

The

classes in order of decreasing sensitivity as receivers are

roughly described by use as follows:

 Class A

 residential

and institutional; Class B

—

 commercial and business; Class

C

 industrial.

The

classification

land

dependent

the

actual

use

being made of the land,

 rather than on anticipated or

planned use such as could occur if the classifications were

0t310017

6

based on zoning.

 This is not to say that zoning is not a

factor in these regulations because

 it i~, in implicit

terms.

 Zoning largely determines land use which,

 in turn,

determines the applicable noise regulations.

 Thus,

the

application of the regulations is based indirectly on local

zoning decisions,

 and a conflict in land uses from a noise

standpoint relates back to the zoning decision that

determined the conflict.

(In the Matter of: Noise Pollution Control Regulations

 (July

31,

 1973) R97—2 at

 23.)

The record establishes that complainants’ residence,

 located

on Lot G

 (Conip.

Ex.

1),

 is a house intended for occupancy as

separate living quarters as defined by the SLUCM.

 (35 Ill.

 Adin.

Code 901.101(a)

 Appendix B-i.)

 Simply because complainants own

other surrounding lots which are used as both commercial and

residential rental property does not negate the fact that

complainants parcel of property is

 in fact used as a “household

unit” subject to Class A land protection.

 The Board’s review of

the record,

 the noise regulations and the policy behind adopting

the SLUCM leads

 it to conclude that complainants’ property (Lot

G)

 is Class A land.

Coggeshall argues that it is exempt from the requirements of

Section 901.102(a) because Section 901.107(d)

 exempts “sound

emitted from equipment being used for construction”.

 (35 Ill.

Adm. Code 901.107(d).)

 Coggeshall relies on Paragraph 71—1 of

the Criminal Code of 1961 to argue that equipment located at the

asphalt plant is “construction equipment”.

As opposed to relying on a provision in the Criminal Code of

1961 which makes

 it a misdemeanor to deface identification marks

on construction equipment, the Board will look to its definition

of “construction” set forth in Section 900.101 of the noise

regulations.

 (35 Ill. Adm. Code 900.101.)

 The Board defines

“construction” as the:

on-site erection,

 fabrication, installation,

alteration, demolition or removal of any structure,

facility, or addition thereto,

 including all related

activities including, but not limited to, clearing of

land, earth-moving,

 blasting and landscaping.

In adopting the exemption for equipment used in construction, the

Board noted,

 “t)he

 exemption refers to the ~

 of the equipment

so that if similar equipment is used for different activities

the exemption would not apply”.

 (In the Matter of: Noise

Pollution Control Regulations (July 31,

 1973),

 R72—2 at 30.)

The equipment used at Coggeshall’s asphalt plant does not

fit the definition of equipment used for construction.

The

7

production of asphalt at the plant does not entail the “on-site

erection, fabrication, installation, alteration,

 demolition or

removal of any structure”.

 The Board’s opinion in R72-2 makes

clear that Coggeshall’s asphalt plant is not exempt under

901.107(d)

 simply because some of the same equipment may be used

at the asphalt plant and at

 a construction site.

 Additionally,

merely because Coggeshall is also engaged in road construction

does not render equipment used in producing asphalt

“construction” equipment as defined by the regulations.

Therefore, the Board rejects Coggeshall’s argument that it is

exempt from the requirements of 901.102(a).

Having concluded that complainants’ property is Class A land

and that the Coggeshall asphalt plant

 is Class C land not

entitled to any exemption, the Board must determine whether

complainants have established that sound emissions from the plant

violate Section 901.102(a).

Gregory Zak testified that he prepared a study of the sound

emissions from the plant received at complainants’ property.

(Tr. 1/8/92 at 39; Comp.

Ex.

 16.)

 Tests were performed on August

16,

 1991,

 from 10:30

 a.in.

to

 1 p.m. and August 19,

 1991,

 at 5:20

a.m.

 to 7:30 a.m.

 (Tr. 1/8/92 at 40;

 Comp.

Ex.

 16 at 1—2.)

Zak

used a Larson-Davis 3100 Real Time Analyzer to perform the tests.

(Tr. 1/8/92 at 40; Comp.

Ex.

 16 at 1-2.)

 The microphone used was

a precision microphone meeting applicable ANSI standards.

 (Tr.

1/8/92 at 41; Comp.

Ex.

 16 at 1-2.)

 The microphone was angled at

zero degrees and placed at a height four feet above the ground

and located approximately 400 feet from the plant.

 (Tr.

 1/8/92

at 41,

 54; Comp.

Ex.

 16 at 1-2,

5.)

 The distance from the Tex

residence to the microphone was approximately 90 feet.

 (Tr.

1/8/92 at

 55; Comp.

Ex.

 16 at 5.)

 The study describes the

atmospheric conditions and field calibrations.

 (Comp.

Ex.

 16 at

1-2; Tr.

 1/8/92 at 41.)

 Zak testified that the equipment

complies with the Board’s testing procedures.

 (Tr.

 1/8/92 at

44.)

Zak’s study includes an octave band survey of data gathered

from the emissions from the plant.

 (Comp.

Ex.

 16 at

3;

Tr.

1/8/92 at 45.)

 The data described as Survey Site No.

1-1

represents the sound emissions,

 or raw sound values, measured

without adjusting the raw data for ambient conditions.

 Site No.

1—2 refers to sounds levels measured during lunchtime, which

reflect ambient conditions.

 Site No.

 1-3 represents the

correction for ambient sound which must be applied to the raw

sound values.

 The data described as Site No.

 1—4 represents the

sound levels after the raw levels have been adjusted to remove

the impact of ambient sound.

 These are the sound levels

attributable to the asphalt plant.

 (Comp.

Ex.

 16 at 3;

Tr.

1/8/92 at 46-48.)

 Zak compared the information from Site No.

1-4

to the numerical limits in Section 901.102(a)

 to arrive at the

reduction needed

 for compliance.

 (Comp.

Ex.

 16 at

3;

Tr.

 1/8/92

3/-00

8

at 48-50.)

 The study also includes a graphic representation of

the above data and pictures showing the location of the

microphone.

 (Comp.

Ex.

 16 at 4;

Tr.

 1/8/92 a~52,

 58—60.)

Attachment A of the study is a printout of the memory of the

3100 Real Time Analyzer.

 (Comp.

Ex.

 16 Att. A.; Tr. 1/8/92 at

60.)

 The printout indicates proper calibration of the

instrument, and indicates the type of sound band measurements

being recorded.

 (Comp.

Ex.

 16 Att. A at

1,

 3; Tr.

 1/8/92 at 61,

69—70.)

 The printout also establishes that the analyzer took an

L~measurement as required by Board regulations.

 (Comp.

Ex.

16

Att. A at

5,

6;

Tr.

 1/8/92 at 62,

70,

73,

 76.)

 Zak testified

that the information in the printout was used to “compare the

 calibration at the beginning to the calibration at the end in

order to establish whether or not the analyzer drifted

sufficiently to have to throw the data away or make the data

valid”.

 (Tr. 1/8/92 at 63.)

 Zak testified that the information

obtained in the printouts formed the basis of his conclusion that

the plant was in violation of Section 901.102(a)

 and that

reductions are needed.

 (Tr. 1/8/92 at 77-78; Comp.

Ex.

 16 at 3.)

Testing done on August 19,

 1991 was done solely to establish the

integrity of the ambient levels at both third octave band and

single octave band settings.

 (Comp.

Ex.

 16 Att. A at 13—16;

Tr.

1/8/92 at 93-96.)

 Based upon the study,

 Zak opined that the

Coggeshall plant was in violation of Section 901.102(a)

 of the

Board’s noise regulations.

 (Tr. 1/8/92 at 104.)

Jim Powers,

 an electrical engineer, prepared

 a sound

emissions report on behalf of Coggeshall.

 (Tr. 1/9/92 at 229;

Resp.

Ex.

 11-13.)

 Powers conducted

 a test on August 20,

 1991,

between 10:30

 a.m.

 and noon at three different locations on the

Tex property using a Rion Sound Level Meter Model NA-23.

 (Tr.

1/9/92 at 232;

 Resp.

Ex.

11,

 12.)

 Powers testified that the

equipment was calibrated both before and after testing.

 (Tr.

1/9/92 at 233.)

 The report indicates atmospheric conditions and

that the sound measurements were taken more than 25 feet from the

property-line-noise source.

 (Comp.

Ex.

 11; Tr.

 1/9/92 at 234.)

The sound readings are in both dB and dB(A).

 (Tr. 1/9/92 at 238-

40,

 251—52; Comp.

Ex.

 12.)

 Powers testified that he believed ~

measurements were taken, although he was not the person who

actually performed the tests.

 (Tr. 1/9/92 at 250.)

 Powers

classified the Tex property as Class B land and the plant as

Class C and concluded that, with the exception of the 4,000 and

8,000 hertz readings, the plant was in compliance with Section

901.103 governing emissions from Class C to Class B land.

 (Tr.

1/9/92 at 242;

 Coinp.

Ex.

 12.)

 Powers testified that he

classified the Tex property based upon the B-2 zoning of the

property by the City of Macomb.

 (Tr. 1/9/92 at 245.)

Zak testified that the Rion Model NA-23 used by Powers does

not calibrate the microphone and

 is a Type II sound level meter

37-0020

9

incapable of rendering an L~,measurement.

 (Tr. 1/9/92 at 329

31;

 Coinp.

Ex.

 17.)

Discussion of the Sound Measurement Data

One of the major problems that the Board frequently

encounters

 in dealing with noise enforcement cases

 is the quality

of sound measurement data presented to the Board in support of

the claims made by the complainant or the respondent.

 In order

to show compliance with,

 or establish a violation of the Board’s

sound emission standards for property—line—noise—sources at 35

Ill.

Adm.

 Code 901.102, the sound emissions from the source must

be measured in accordance with the Board regulations at 35 Ill.

Adm. Code 900 and 901.

 These regulations prescribe procedures

for the measurement of sound pressure levels, and specifications

for the instrumentation used to measure sound levels.

 If the

sound measurement data presented to the Board are obtained by

methods which do not meet the applicable standards,

 then the

validity of such data becomes questionable.

In the present case, the noise measurement data presented by

Zak on behalf of the petitioners

 (Comp.

Ex.

16)

 is a good example

of valid sound measurement data.

 The instrumentation and the

procedures used to measure the sound levels are in accordance

with the Board regulations at 35 Ill.

 Adm. Code 900 and 901.

First, the sound level meter used in the study,

 Larson—Davis 3100

real time analyzer

 (RTA), complies with the standards prescribed

at 35

 Ill.

 Adm. Code 900.103(b).

 (Tr. 1/8/92 at 44.)

 The Board

 notes that the RTA is a Type

 I precision device capable of

measuring the full spectrum of sound frequencies specified in the

Board regulations simultaneously and present the data in terms of

L~averaging as defined at 35 Ill. Adm. Code 900.101.

Second, the sound measurement data included in the Zak study

indicate that the sound levels have been recorded in accordance

with the 1-hour L~requirement of 35 Ill.

 Adm. Code 900,

 i.e the

sound levels have been measured at different octave band center

frequencies on the basis of L~averaging over a period of one

hour.

 (Comp.

Ex.

 16 Att. A at 5.)

 Also, the sound level

measurements have been corrected for the presence of ambient

sound as required by the Board regulations.

 (Comp.

Ex.

 16 at

3.)

In this regard, the Board notes that only sound levels measured

on the basis of L~,averaging over a period of one hour and

corrected for ambient sound can be compared with the allowable

octave band sound pressure levels specified at 35 Ill. Adm. Code

901.102 to show compliance or non—compliance.

Finally, the Board notes that the Zak study appears to meet

all the requirements of the Agency’s regulations at

 35 Ill.

 Adm.

37-0021

10

Code

9512,

 and includes all the necessary information that is

needed to evaluate the sound level data to make a determination

 of compliance or non-compliance.

 The information in the report

includes the weather conditions, octave band survey of the sound

data in written and graphical forms,

 a map and pictures showing

the location of the sound source and the measurement point, and a

printout of the raw sound level data including calibration data

from the memory register of the RTA.

Regarding the sound measurement data presented by Jim Powers

on behalf of Coggeshall, the Board notes that information

presented in the noise report, and the hearing testimony indicate

that the instrumentation and procedures used to measure the sound

levels are not in accordance with the Board regulations at 35

Ill.

 Adm. Code 900.103(b).

 (Resp.

Ex.

 11; Tr. 1/9/92 at 253—55,

329-31.)

 Therefore,

 the Board cannot consider the sound level

data presented by Powers to make a determination of compliance or

non-compliance.

 Also,

 since the Board has concluded that the Tex

property is Class A land subject to the limitations of Section

901.102

 (a), the conclusions reached by Powers based upon Section

901.103 are irrelevant to a determination of whether Coggeshall’s

Class

 C property is violating the allowable octave band sound

pressure limits applicable to sound emitted to Class A land.

The following compares levels, measured in dB, allowed by

Section 901.102(a)

 and those emitted from the plant as found by

the Zak study:

Octave Band Center

 Class C Land

 Asphalt Plant

Frequency

 (Hertz)

 to Class A

31.5

Based upon the sound emissions data prepared by Zak,

the

Board finds that complainants have established that emissions

from the asphalt plant violated Section 901.102(a).

 In his post-

hearing brief,

 Scott Coggeshall has again asked that he be

dismissed as a respondent because “he is the mere owner of the

2Part

951

 contains procedures

for

 sound

 level

 measurements

adopted by the Agency pursuant to 35 Ill. Adm. Code 900.103 for the

purpose of enforcing Board’s noise regulations at 35 Ill. Adm. Code

900 and 901.

0137-0022

11

land”.

 As the Board stated in its December 20,

 1990,

 order,

Section 24 prohibits the emission of sound beyond the boundaries

of a person’s property in violation of the Bo~rd’snoise

regulations.

 (Ill. Rev.

 Stat.

 1991,

ch.

 111 1/2, par.

 1024.)

As

the owner of the property on which the asphalt plant

 is located,

Scott Coggeshall is in violation of Section 901.102(a).

The

record also establishes that Coggeshall Construction Company owns

the plant itself.

 Therefore,

 Coggeshall Construction Company is

also in violation of Section 901.102(a).

 The Board notes that on

the days that the Zak tests were performed,

 the Bross respondents

were operating the asphalt plant pursuant to their management and

purchase agreement.

 (Tr. 1/9/92 at 291-92; Resp.

Ex.

 10.)

As

noted above,

 Bross failed to present any evidence at hearing,

having left the January

8,

 1992, hearing, nor did Bross file a

post-hearing brief.

 Because the record establishes that the

plant was in violation of Section 901.102(a) while being operated

by Bross, the Bross respondents are also found in violation of

Section 901.102(a).

Nuisance

Complainants allege that the respondents have violated

Sections

9,

 23 and 24 of the Act.

 In a “nuisance” case

quantification of noise or dust is immaterial in determining

whether such a violation has occurred.

 (Ferndale Heights

Utilities Co.

v.

 Illinois Pollution Control Board (1st Dist.

1976),

44

 Ill. App.

 3d 967,

 358 N.E.2d 1224, 122B.~

 The Act and

 Board rules prohibit both noise and air pollution.

With regards 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.

 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

3coggeshall has again raised the argument

 in its brief that

complainants must prove that the general public is affected by the

emissions from the plant.

 As the Board stated in its December 20,

1990,

 order,

 the Act grants individual citizens the authority to

enforce the Act and regulations.

 Numerous Board opinions in noise

nuisance cases also establishes that

 a complainants establishes

a

violation

 upon

 showing

 that

 he/she

has

 suffered

 unreasonable

interference.

 (eg cites)

c37-0023

12

unreasonably interferes with the enjoyment of life or with any

lawful business or activity.”

 35 Ill.

 Adm. 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.

Ill.

 Rev.

 Stat.

 1989,

ch.

 111 1/2, par.

 1024.

In addition,

 the prohibition against air pollution in

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 form other sources, or so as to

violate regulations or standards adopted by

the Board under this Act.

Ill.

 Rev.

 Stat.

 1989,

ch.

 111 1/2, par.

 1009.

Section 3.02 of the Act defines “air pollution” as:

the presence in the atmosphere of one or more

contaminants in sufficient quantities and 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

property.

Ill.

 Rev.

 Stat.

 1989,

ch.

 111 1/2,

 par. 1003.03.

Thus,

 under the Act and Board regulations,

 a noise or air

violation has occurred if the complainant has proven that the

complained of noise or dust has unreasonably interfered with the

complainant’s enjoyment of life or with his pursuit of any lawful

business or activity.

With regard to the alleged violation of Section

 24 of the

Act, 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.

37-0021:,

13

Michael’s Lutheran Church

 (Aug.

30,

 1990),~ PCB 89-182,

 114 PCB

765, 773; Kochanski v. Hinsdale Golf Club (Ju2y 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 Illinois Supreme Court held 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 (1978),

73

 Ill.

 2d 226,

 232—33,

383

N.E.2d 148,

 150-51

 (“nuisance” air pollution; first four factors

only); see Ferndale Heights Utilities,

 44 Ill. App.

 3d at 967—68,

358 N.E.2d at 1228.

 Those factors as set forth in Section 33

(c)

of the Act 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.

Character and Degree of the In~urvor Interference

Complainants testified that the sound from the asphalt plant

vibrates the windows,

 floors and personal items in their home.

The sound prevents them from using their backyard and interferes

with their sleep and affects their health.

 Complainants also

testified that the dust “mushrooms in a bomb on a regular basis”

(Tr.

 8/26/91 at 50)

 and covers everything in their yard.

Complainants testified that the dust from the asphalt plant is

different from dust from the dirt driveway in that it

 is “whiter

and stickier”

 (Tr.

 Susan testified that her eyes burn and

she and her daughter have headaches from the dust.

 The testimony

of James Tex and others who have visited the Tex residence

substantiate complainants’ testimony as to both the dust and the

sound.

—

14

Perry Cale,

 owner of the salvage yard,

 and Nonty DeCounter,

owner of the John Deere Dealership, testified that they were not

bothered by any noise or vibrations from the asphalt plant.

 (Tr.

1/9/92 at 210—11,

 279.)

The record establishes that the asphalt plant is not

operated on a year-round basis.

 In 1987,

 the plant was in

operation 60 days,

 in 1988 it was operated 44 days,

 in 1989 it

was in operation under Bross for 20 days,

 in 1990 under Bross the

plant was operated 170 days and in 1991 Bross operated the plant

120 days.

 (Tr. 1/9/92 at 290—93.)

Social or Economic Value of the Source

The record indicates the asphalt plant,

 as opposed to

Coggeshall Construction Company, employs approximately three

people full time.

 (Tr.

 1/9/92 at 302-03.)

 Coggeshall

Construction Company employs approximately four full-time

employees.

 (Tr. 1/9/92 at 304,

 306.)

 Depending on the time of

year,

 Coggeshall Construction Company employs approximately 40-80

laborers, operators, teamsters and iron workers and has a payroll

of anywhere between $114,540 to approximately $975,000.

 (Tr.

1/9/92 at 294—96.)

Suitability or Unsuitability of the Source

The record establishes that the asphalt plant

 is zoned 1-2

industrial and the Tex property is zoned B-2 business by the City

of Macomb.

 Complainants obtained a special permit from the city

to build their residence.

 Generally,

 other surrounding property

is zoned ether industrial or business.

 A salvage yard,

 lumber

company, nursery,

 gas company and storage facilities surround the

Tex property.

As to priority of location,

 the record indicates that the

Tex’s built their home before the asphalt plant was constructed.

However, prior to construction of the asphalt plant,

 a storage

site for construction equipment and materials was located at the

site.

 (Tr. 8/26/91 at 85—86;

Tr.

 1/9/92 at 263—64.)

Technical Practicability and Economic Reasonableness of Control

Zak testified to alternative methods of controlling sound

emissions.

 He opined that erection of a barrier, such as a wall

or fence, between the two properties would not solve the “16

 hertz problem.”

 (Tr.

 1//8/92 at 104-05.)

 He also testified that

re-engineering of the plant itself

 is not practicable because of

the cost would exceed $100,000.

 (Tr.

 1/8/92 at 106—10.)

According to Zak,

 “a)nother

 possibility which would still be

expensive would be to encapsulate the plant

 in a reinforced

concrete structure.”

 (Tr. 1/8/92 at 110—11.)

 Lastly,

Zak

suggested moving the plant, which he estimated would cost

C~!

37-0026

15

approximately $15,000.

 (Tr. 1/8/92 at 111—17.)

 Zak testified

that he was familiar with the relocating of an asphalt plant

in

Springfield.

 (Tr.

 1/8/92 at 116.)

Coggeshall introduced the testimony of Mike Hillyer,

an

estimator and manager, who stated he was familiar with the

asphalt plant in Springfield and that he believed it would cost

in excess of $60,000 to relocate the asphalt plant.

 (Tr. 1/9/92

at 320-22.)

 He also testified that he was not aware that the

plant in Springfield had actually been moved and that,

 every time

a plant is moved,

 it depreciates

 in value.

 (Tr. 1/9/92 at 321—

23.)

Subsequent ComDliance

The record does not indicate that there has been any

subsequent compliance with the Act or regulations.

 The Board

notes that although Coggeshall

 introduced evidence that it has

the requisite air permits from the Illinois Environmental

Protection Agency

 (Tr.

 1/9/92 at 265—69), the air regulations

make clear that the existence of a permit

 is not

 a defense to

a

violation of the Act or regulations.

 (35 Ill. Adm. Code

201.121.)

 As noted above, Bross failed to introduce any

testimony at hearing.

Nuisance Finding

Complainants have shown the noise and dust emanating from

the plant has interfered with their

 lives.

 However,

 the plant

has social and economic value in that it employs persons in the

area.

 The record clearly establishes that the plant is

 in an

area zoned for industrial and is in a suitable location.

The

area was zoned for industry when the complainants built their

home, although the plant was not at the present location.

In

addition, owners of adjacent properties testified at hearing that

they were not bothered by noise from the asphalt plant.

Therefore 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 do not

constitute an unreasonable interference with complainants’

enjoyment of life and lawful activity.

CONCLUSION

The Board finds that respondents have violated 35 Ill.

Adin.

Code 901.102(a).

 Noise from respondent’s Class C property

is

violating the allowable octave band sound pressure limits

applicable to sound emitted to Class A land.

 The Board further

finds that the noise and dust emanating from respondent’s

facility do not constitute an unreasonable interference.

O!37-0027

16

Therefore, the counts of the complaint alleging such violation

are dismissed.

REMEDY

Having found a violation of 35

 Ill. Adm. Code

901.102(a)

 the Board must determine the appropriate remedy.

Section 33(b)

 of the Act provides that the Board may direct that

respondents cease and desist from violations of the Act and

regulations, impose civil penalties and order other appropriate

relief.

 (Ill. Rev.

 Stat.

 1991,

ch.

 111 1/2, pars.

 1033(b),

1042 (a)

In its order of March 26,

 1992, the Board noted that,

 at the

January

8,

 1992 hearing,

 complainants stated that in addition to

seeking a cease and desist order,

 they also sought “any and all

relief” available.

 (PCB 90—182

 (March 26,

 1992)

at

2.)

The

Board declines,

 at this time,

 to impose a civil penalty.

In

determining the proper remedy,

 the Board must again examine the

provisions of Section 33(c)

 or the Act.

 The Board notes that the

complainants have requested that the Board order the respondents

to cease and desist from the violations.

 At this time the Board

believes that such a remedy is inappropriate as it is not clear

from the record what actions respondent could take short of

shutting down to cease and desist from the violation.

 Therefore,

the Board will direct the respondents to study the economic

reasonableness and technical practicability of the control

options outlined by Gregory Zak as well as any additional options

which

 it may deem appropriate to reduce the noise emanating from

the plant.

 This study shall be filed with the Board no later

than March 15,

 1993.

ORDER

1.)

 The Board finds that respondents Bross,

 Scott

Coggeshall and Coggeshall Construction Company have

violated Section 901.102(a)

 of the Board’s noise

regulations.

2.)

 Respondents shall study the economic reasonableness and

technical practicability of the control options

outlined by Gregory Zak as well as any additional

options which it may deem appropriate to reduce the

noise emissions from the asphalt plant.

 This study

shall be filed with the Board and served upon

complainants no later than March

15,

 1993.

Complainants shall

 file a response with the Board and

 served upon respondent no later than April

15,

 1993.

IT IS SO ORDERED.

r,j

~‘

•

,_i

17

Board Members Ronald Flemal and J. Theodore Meyer dissented.

Board Member Michael Nardulli concurred.

I, Dorothy M.

 Gunn,

 Clerk of the Illinois Pollution Control

Board, hereby certify~thatthe ab9ve opinion and order was

adopted on the

 day of

 1992 by a vote of

____

Dorothy M. ,~Iin,Clerk

Illinois Po~,aution Control Board

0! 37-0029