ILLINOIS POLLUTION CONTROL BOARD

October 29,

1992

VILLAGE OF MATTESON,

Complainant,

v.

)

 PCB 90—146

(Enforcement)

WORLD MUSIC THEATRE

)

JAN

PRODUCTIONS,

 LTD. and

)

DISCOVERY SOUTH GROUP,

 LTD.,

)

Respondents.

ORDER OF THE BOARD

 (by B.

 Forcade):

On October

5,

 1992,

 respondents (Theatre)

 filed

 a “Motion To

Strike Portions of Complainant’s Reply Brief”.

 On October

9,

1992, the Village of Natteson

 (Matteson)

 filed its response along

with a “Motion to Strike Portions of Respondents’ Brief” and a

“Motion to Reopen Evidentiary Hearings”.

 Theatre filed responses

to these motions on October

16,

 1992.

Theatre requests that a portion of complainant’s reply brief

be stricken because it is outside the record and not limited to

matters in reply.

 Theatre objects to Natteson’s reference to

another legal proceeding.

 Theatre also objects to portions of

complainant’s reply brief that assertively advocate a position

that was not presented in final briefs.

Natteson notes that its reference to the other legal

proceeding was in reply to Theatre’s unsupported claim that if

there was any noise problem,

 it is demonstrably over.

 Matteson

claims that its reply brief accurately conveys information of an

event that occurred after the completion of hearing.

 Matteson

further contends that no new arguments were presented in its

reply brief.

The Board grants the motion to strike the portion of

complainant’s brief referencing other proceedings.

 This

proceeding was not addressed at hearing and contains factual

assertions rather than legal argument.

 While Matteson’s

characterization of the proceeding may be accurate, Theatre was

not allowed an opportunity to address the matter.

 The Board

denies the motion to strike portions of the brief that allegedly

contain a new position.

 The Board does not find any new

arguments raised in the reply brief.

Matteson in its motion to strike portions of the

respondent’s brief seeks to strike information contained in a

footnote concerning improvements made to the berm of the theater

between the 1990 and 1991 season.

 Matteson contends that this

information has not been previously included in the record and is

0 ~37-0003

undocumented.

Theatre concedes that the cost of the project was not

entered into the record but evidence of the scope of the project

was included in the record.

 Theatre suggests that Matteson’s

motion

 is a direct response to Theatre’s motion to strike

 portions of complainant’s brief.

 Theatre characterizes the

motion as being untimely and superfluous.

The Board grants the motion to strike but only as to the

costs of the project.

 There is evidence in the record concerning

the modification to the theater but there is no reference to the

cost of the project.

Matteson further requests that evidentiary hearings be held

to address the issue of residents’ complaints during the

1992

season.

 The noise allegations focus on an event that occurred

after the date of the last hearing in this matter.

 Matteson

holds that additional hearings are required due to Theatre’s

contention that the problem has been solved.

 Natteson notes that

any meaningful disposition should respond to the current status

of noise violations.

Theatre notes that Matteson was given the opportunity to

enter evidence on the 1992 season during the last set of

hearings.

 Theatre characterizes Matteson’s request as an attempt

to correct inadequacies in the record.

 Theatre contends that it

will be prejudiced by the hearings, due to the cost and a

reduction in time for Theatre to prepare the theater for the 1993

season in compliance with the Board’s final order.

The Board grants the motion to reopen evidentiary hearings.

The Board believes that additional hearings are warranted in this

matter.

 However,

 the Board does agree with Theatre’s position

that additional delays may jeopardize the ability of Theatre to

 make any necessary changes for compliance.

 In order to avoid

delay the hearing officer is instructed to complete all hearings

by December 18,

 1992 and limit the focus of the hearing to the

matters discussed in this order.

 Either party may present

evidence on the issues which were stricken from the final briefs

as being outside the record in this matter.

The Board will allow the record to be reopened regarding

noise impacts, but only to the extent of receiving testimony

regarding the impact after July 27,

 1992, the date of the last

hearing in this matter.

 In addition to focusing on noise

complaints during this later period, the Board instructs the

parties to focus on providing comments on an order which the

Board is considering, and which is recited at the end of this

order.

 Such comments will assist the Board in adopting the most

effective, but least intrusive method to monitor the sound and

control the sound level at the source.

 The Board believes that

focusing on the remedy at this time will assist Theatre in

achieving full compliance during the 1993 season.

 Lastly, the

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3

Board again requests comment on which SLUCM class best describes

Theatre activities.

 For additional information on SLUCM,

 see Tex

v. Co~~esha1l(October 29,

 1992)

 PCB 90-182,

 4-7.

Based on the record before the Board,

 it is evident that

there continues to be a noise disturbance from the Theatre, at

least through the first part of the 1992 season.

 While Theatre

continues to contend that any noise problem has been alleviated,

it has not presented evidence to support this contention.

 There

is limited evidence on the improvements that have been made to

the theater and no explanation of the effect any improvements

have had in controlling the sound level.

The record reflects that there are three ways of reducing

the noise impact from Theatre:

 (1) turn down the volume at the

source,

 (2) make physical changes to the Theatre,

or

(3)

 employ

some combination of the prior two options.

 The testimony

regarding physical changes to the theater does not show any

significant reduction to the impact of the noise at the receiving

property and does not show these changes to be cost effective.

(Tr. 7/27/92,

 at 14

16,

 107.)

 As a result, the present record

does not support an order containing mandated physical changes to

the theater.

Upon reviewing the recommendations in the report and the

testimony of the experts, the Board believes that the most viable

option to control the sound is to reduce the volume at the

source.

 The Board is considering an order which will establish

octave band sound pressure levels which Theatre must meet at all

locations surrounding the facility,

 on the basis of L~averaging

over a period of five minutes.

 The Board is also considering a

mandate that Theatre establish monitoring stations at two

locations to allow for feedback on sound impacts and to record

data for evaluating compliance.

The Board believes that Theatre can control the sound level

and reduce the adjacent noise impact by operating the entire

sound system at an appropriate level.

 The Board further believes

that operation of the theater •at a reasonable sound level will

not substantially interfere with the operation of the theater or

the ability of the theatre to hold concerts similar to the types

of concerts that have been conducted at the theater in previous

seasons.

 This is supported by the number of concerts held at the

Theatre for which the record does not include any noise

complaints.

 Concerts producing no noise complaints have included

all types of music.

 A quick review of the concerts producing

noise complaints does not show that any particular type of music

greatly predominates.

 The Board’s belief

 is further supported by

the number of other outdoor concerts that are held at other

venues with limited problems.

 The major difference that the

Board foresees

 in the operation of the theater is a reduction in

CJ3~-00O5

4

the sound level and implementation of a mechanism to monitor and

control the impact of the sound from the theater on the

surrounding community.

The record shows that feedback mechanisms exist to allow

near real—time sound control at the source based upon the impact

such sound is having at selected receptor sites.

 The record so

far implies that certain frequencies of sound are more likely to

be causing adverse impacts to the surrounding communities.

 (Tr.

7/27/92, at 45

 50.)

 Therefore,

 it may be possible to

ultimately craft an order which sets more stringent limits on

only a few frequencies and less stringent limits on other

frequencies.

 This approach will allow Theatre to have a specific

goal to work towards, and will provide notice to those who wish

to perform at Theatre of what precise sound impact levels they

will be expected to achieve, well in advance of any performance.

Consequently, the Board will present an order that it is

considering for this matter.

 At hearing the parties are expected

to provide comments on the specifics of such order,

 i.e., whether

it is workable and whether it provides a preliminary framework

for reduction of sound impacts to reasonable levels at the

selected receptor sites.

 Any such final order would also

consider a mandate to cease and desist from violations of

 35 Ill.

Admn.

 Code 900.102 and from the modified numerical limitations

imposed in the order.

Matters of Concern

Sound Monitoring

The Board’s regulations at 35 Ill.

 Adm. Code 900.103 require

that all sound measurements with the exception of impulsive

sound, presented to the Board be taken on the basis of

L,q

averaging over a period of

 1 hour

 (1 hour L~). Procedures for

sound measurement are found at 35

 Ill.

 Adxn.

 Code 951.100

et.

 seq.

(1985).

 Due to the character of the sound from the theater it

appears the use of the one hour average is inappropriate.

 It is

a common practice for groups to perform for forty minutes, take

a

twenty minute break and return for another forty minutes.

 Each

song will last for a few minutes and there is dead time between

songs.

 During any given performance, there are periods were

there is no sound or the sound is minimal.

 Averaging segments

where there is excess noise with segments where there is no noise

provides an inadequate measurement of the noise level in this

particular proceeding.

Due to the pattern of noise emission from the theater, use

of a shorter averaging period may be appropriate.

 Matteson’s

sound consultant recommended using an averaging period

 in the

range of

 1 to

 5 minutes.

Mr.

 Zak of the Illinois Environmental

Protection Agency recommended using a much shorter time period in

00 6

5

the range of

 10 seconds.

 The Board

 is considering the use of a

five minute averaging period

 (5 minute L~)comprised of sound

data measured in 10 second blocks

 (i.e. the

 5 minute L~will be

determined by averaging 30 10—second measurements on an energy

basis)

 to provide accurate and meaningful data.

 Such process

would need to employ good sound measurement techniques.

 (Tr.

7/27/92, at 37,

 141,

35

 Ill. Adm. Code 951.100 et.

 seq.)

The

parties are requested to address the use of a five minute time

averaging period composed of 10 second data blocks.

Background or Ambient Data

The record shows that meaningful evaluation of noise data

depends, to a large extent,

 on the quality of background or

ambient data.

 (Tr. 7/27/92,

 at 28.)

 It further supports the idea

that ambient data should not be collected immediately before and

after the concert since the traffic noise associated with the

concert may corrupt the ambient noise data.

 The Board is

considering a requirement that ambient sound levels at each

octave band be collected on nights when no concert is conducted,

using the same

 5 minute averaging time comprised of sound data

 measured in 10 second blocks.

 This would result in an advance

determination that the background sound levels for each octave

band at

 a particular time frame,

 say Tuesday evening from 8:00

p.m. to 9:00 p.m.,

 is an L~value of X decibels.

 Data from

several nights could be averaged to articulate a background

number for each

 hour.

 This background number could be used to

correct the raw

 5 minute L~recorded on that night at that time

during a concert event.

 If the parties cannot agree on a

background data methodology, the Board may establish one.

Location

The record does not suggest locations for the monitoring

stations.

 The parties should focus on which locations would be

appropriate and the type of equipment to be located at the

monitoring stations.

 Any such monitoring must be capable of

producing an output showing

 5 minute

 (or other interval to be

determined)

 average L~sound levels on paper or electronic format

that can be supplied to complainants and be preserved for future

reference.

Sound Level

The Board has not been presented with data that measures the

level of the sound which disturbs local residents.

 The parties

should attempt to agree on an allowable sound level for each

octave band or address why the levels

 in 35 Ill.

 Adm. Code

901.102

 (for the appropriate SLUCM class)

 would not be

 appropriate.

37-0007

6

Draft Order

The Board

 is considering the following as a final order:

1.

 Theatre is found to have violated 35

 Ill. Adm. Code 900.102

and is ordered to cease and desist from future violations.

2.

 Theatre is directed to establish sound monitoring at a

minimum of two locations,

 selected by Matteson, using

instruments of the character discussed in Public Exhibit

2,

which will provide data feedback to the facility for

purposes of octave band sound control during concerts.

All

data shall be collected in accordance to 35 Ill. Adm. Code

951.100 et.

 seq.

 Such devices shall maintain a record of

all sound data.

 One copy of such data shall

 be preserved by

Theatre for future use,

 one copy of such data shall be

provided to complainants.

All sound measurements shall be based on L~averaging as

defined in 35 111. Adm. Code 900.101, using a reference time

of five minutes.

3.

 Background or ambient data values shall be collected by

Theatre on days or evenings when on concert is being

conducted during hours when concert would typically occur.

Ambient sound data collected during

 3 monitoring dates may

be averaged to provide an average hourly background ambient

at each octave band.

 This data will be used to establish

 ambient level for hourly periods when no concert is being

performed.

 Such ambient data shall be used for correcting

the sound levels recorded during a concert for the same

hourly period.

 This background will be used for all future

concerts during that time period.

4.

 Theatre shall not cause or allow the emission of sound to

any receiving Class A land which exceeds any allowable

octave band sound pressure level specified in the following

table, when measured using five minute intervals at any

point within such receiving Class A land.

Octave

 Allowable Octave Band Sound Pressure

Band

 Levels

 (dB)

 of Sound Emitted to any

Center

 Receiving Class A Land

Frequency

(Hertz)

 Daytime

 Nighttime

31.5

—:

—

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Daytime shall consist of the hours between 7:00 am and 10:00

pm,

 local time.

 Nighttime hours shall be the hours between

10:00 pm and 7:00 am,

 local time.

5.

 Nothing in this order shall prohibit Natteson from

conducting its own sound monitoring in accordance with the

provisions of this order.

Hearing Reguirements

The hearing officer is ordered to set a hearing in this

matter to address the above issues.

 The hearing officer is

directed to set this matter for hearing after consultation with

the parties.

 Hearing must be scheduled within 14 days of the

date of this order.

 All hearings on this matter are to be

completed on or before December 18,

 1992.

 The record shall be

completed with closing arguments on the record;

 no final briefs

will be allowed.

 The Board will order expedited transcripts of

the hearing.

 The hearing officer shall inform the Clerk of the

Board of the time and location of the hearing at least 40 days in

advance of the hearing so that public notice of the hearing may

be published.

The Board also solicits comments from the Illinois

Environmental Protection Agency (Agency)

 on the draft order which

the Board is considering.

 The Board instructs the Clerk of the

Board to forward a copy of this order to Mr. Greg Zak of the

Agency.

IT IS SO ORDERED.

Board Member J. Theodore Meyer dissented.

I, Dorothy M. Gunn,

 Clerk of the Illinois Pollution Control

Board,

 hereby certify th~ the above order was adopted on the

~/~t

 day of

 1992,

 by a vote of

(

~n.

~

Dorothy N. $~i4mn, Clerk

Illinois Pó~L’1utionControl Board

~

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