ILLINOIS POLLUTION CONTROL BOARD

November 19,

1992

CARL

MADOUX,

ALl

CE MADOUX,

)

GLENN MOODY,

AND

MARGARET MOODY,

)

Complainant,

v.

)

 PCB 90—149

(Enforcement)

STRADERS

LOGGING

 AND LUMBER

)

MILL,

Respondent.

JAMES

SINCLAIR

APPEARED

BEHALF

COMPLAINANTS;

ROBERT

LARSON

APPEARED

BEHALF

RESPONDENT.

OPINION

AND

ORDER

THE

BOARD

(by

Girard):

This matter is before the Board on

 a complaint filed July

17,

 1990, and an amended complaint filed August 6,

 1990, by Carl

and Alice Nadoux, and Glenn and Margaret Moody (complainants).

The complaint alleges that respondent is in violation of Sections

9 and 24 of the Illinois Environmental Protection Act (the Act).

(Ill. Rev.

 Stat.

ch.

 111 1/2,

 par.

 1009 and 1024.)

 Hearing was

held on June 27,

 1991,

 in Alton,

 Illinois.

 Pursuant to the

hearing officer’s scheduling order,

 the complainants filed their

closing brief on August 12,

 1991,

 and respondent filed its

closing brief on September

3,

 1991.

 Complainants filed a reply

brief on September 16,

 1991.

The Board issued an interim opinion and order on May 21,

1992, which found that respondent,

 Straders Lumber Mill,

 was in

violation of Section 24 of the Act.

 After considering the facts

and circumstances of the case,

 including the factors outlined in

Section 33(c)

 of the Act, the Board found that respondent is

emitting noise which constitutes an unreasonable interference

with the complainants’ enjoyment of life and lawful activity.

Respondent was ordered to examine the economic reasonableness and

technical feasibility of any control options to reduce noise

emissions from its facility.

 The noise reduction studies were to

be filed with the Board by September

1,

 1992.

 Complainants were

ordered to reply to the respondent’s study by October

1,

 1992.

On October

7,

 1992,

 Straders’s attorney filed a motion to

withdraw as respondent’s counsel.

 This motion was granted by the

Board on October 28,

 1992.

 The respondent failed to file the

noise reduction studies by the Board—ordered deadline of

September

1,

 1992.

 At this time,

 the Board has received no

additional filings by the respondent.

 On October

1,

 1992,

complainants filed

 a motion pursuant to 35 Ill.

 Admu. Code 101.280

O13/01~9

2

asking for sanctions against respondent for failure to comply

with the interim Board order of May 21,

 1992.

Motion Pursuant to Section 101.280

35 Ill. Adm. Code 101.280 specifies that the Board will

order sanctions if a party unreasonably refuses to comply with

any provision of Sections 101 through 120.

 A list of possible

sanctions is indicated.

 Complainants’ motion filed October

1,

1992,

 requests that the Board require the respondent to install

at its sawmill operation the solutions proposed by Mr. Gregory

Zak at hearing.

 Complainants also request the installation of

noise abatement measures by a date certain set by the Board, the

opportunity to verify compliance with such an order,

 and that the

Board retain jurisdiction until respondent is in compliance,

as

evaluated by respondent.

 In addition,

 complainants ask that the

Board award reasonable expenses to complainants from respondent

in seeking an order pursuant to Section 101.280.

 (Complainants’

Motion, October

1,

 1992.)

The Board grants in part complainants’ motion pursuant to

Section 101.280.

 In the order that follows, the Board will craft

a remedy from the record at hand and order compliance by a date

 certain.

 The Board will also issue an order that respondent

cease and desist from violations of Section 24 of the Act after

the date certain.

 However, because of the considerable expense

of implementing the proposed solution, the Board will not grant

complainants’ motion pursuant to Section 101.280(a) (7)

 requesting

reasonable expenses incurred in obtaining the order.

REMEDY

The facts of this case are detailed in the Board interim

opinion and order of May 21,

 1992, which the Board incorporates

by reference herein.

 (Madoux v.

 Straders Lumber Mill, PCB 90-149

(May 21,

 1992)

PCB

____

 hereinafter cited as “May 21 order

at”.)

 Since the respondent’s have filed no response to the

Board’s interim opinion and order,

 the Board will fashion a

remedy from the record.

 The primary source will be the possible

solutions advanced by Mr. Gregory Zak

 (Tr. at 223-228)

 of the

Illinois Environmental Protection Agency.

Mr.

 Zak has been

employed by and doing noise evaluation at the Agency for nineteen

years; further, he has held the title of “Noise Technical

Advisor” for approximately four and half years.

 (Tr. at 213.)

Mr.

 Zak proposed a potential solution to the noise problem

by enclosing the operation of the sawmill to contain and reduce

the sound being generated as well as installing a better muffler

system on the articulating loaders.

 (Tr. at 223-227.)

 According

to Zak

 (Tr. at 226,

 227)

 the total cost of the proposed noise

Ot37~t50

3

abatement program would be “somewhere between six to ten thousand

dollars”.’

 He proposed enclosing the debarker in a separate

building

 (Tr.

 at 223, 224);

 enclosing the scrag mill building;

and enclosing the grading shed.

 (Tr. at 224,

 225.)

 Zak also

proposed that all of the holes, cracks and gaps in the building

be closed, and that the buildings not be opened except when

taking material in or out.

 (Tr.

 at 225.)

 It was his opinion

that enclosure of the operation would have the effect of

significantly reducing noise from the mill.

 (Tr. at 228.)

To

control noise from the L-50 Michigan and IT-12 Caterpillar

articulating loaders, Mr.

 Zak proposed the installation of a

better muffler system at a cost of $350.00 to $400.00 per

machine.

 (Tr. at 226.)

The Board noted in the interim order that complainants

testified that the noise from trucks entering and leaving the

facility along the public road disturb their sleep

 (May 21 order

at 10).

 However, the Board reminds complainants that it does not

have jurisdiction to regulate traffic on a public road.

 While

there is nothing in the regulations specifying that nuisance

 noise on highways is beyond Board purview,

 there is a direct

reference at 35

 Ill.

 Admn.

 Code Section 901, which deals with

numerical noise violations.

 Section 901.107(f)

 states:

“Sections 901.102 through 901.106 inclusive shall not

apply to the operation of any vehicle registered for

highway use while such vehicle is being operated within

any land used as specified by Section 901.101 in the

course of ingress to or egress from a highway.

The Board finds that the suggestions by Mr.

 Zak are

economically reasonable and technically feasible solutions to the

noise problem.

 Therefore,

 the Board directs the respondent to

undertake the measures delineated by Mr.

 Zak in order to abate

the noise emissions emanating from the respondent’s property.

Further the Board directs the respondent to cease and desist from

violation of Section 24 of the Act.

 The Board will grant the

respondent until March

1,

 1993,

 to implement the changes

necessary by the provisions of this order.

This opinion constitutes the Board’s findings of fact and

conclusions of law in this matter.

‘The Board notes that adding all the cost estimates given by

Zak

 (Tr. at 223—227) yields a total figure greater than $10,000.

The discrepancy may be found in the cost estimate for

 a ceiling

in the proposed debarker enclosure

 (Tr. at 224).

 The cost per

foot given

 (2.825 cents per foot) when multiplied by the square

footage of the ceiling

 (864 square

 feet)

 does not yield the total

given

the

transcript

($28,088.46).

O\310~5’

ORDER

The respondent,

 Strader Lumber Mill,

 shall undertake all

measures necessary to cease and desist from further violations of

Section 24 of the Act.

 In addition respondent shall undertake

the following measures to reduce noise emissions:

1.

 The respondent shall enclose the operation of

the sawmill to contain~andreduce the sound

being generated including the placement of

the debarker in a building, the placement of

the scrag mill in a building, and the

enclosure of the grading shed.

2.

Al.

 of the holes,

 cracks,

 and gaps in the

building must be closed by respondent,

and

the buildings must not be opened except when

taking material in or out.

3.

 The respondent shall install a better muffler

system,

 as described by Mr. Gregory Zak in

his testimony,

 on the L-50 Michigan and the

IT—l2 Caterpillar.

4.

 The respondent shall cease and desist from

further violation of Section 24 of the Act.

IT IS SO ORDERED.

Section

the

Environmental

Protection

Act

(Ill.Rev.Stat.

 1991,

ch.

 111 1/2, par.

 1041) provides for the

appeal of final orders of the Board within 35 days.

 The Rules of

the Supreme Court of Illinois establish filing requirements.

(But see also

35

 Ill.

 Admu.

 Code 101.246, Motions for

Reconsideration,

 and Castenada v.

 Illinois Human Rights

Commission

 (1989),

 132 Ill.2d 304,

 547 N.E.2d 437.)

I, Dorothy M. Gunn,

 Clerk of the Illinois Pollution Control

Board, hereby cer~.j~y,

 that the above opinion and order was

adopted on the

/

day

~i~-~-j’

 1992, by a vote of

~//

Dorothy M.,A~tmnn, Clerk

Illinois PQjlution Control Board

Q137-O

152