ILLINOIS POLLUTION CONTROL
November 21,
1991
MICHAEL
L.
CHRISTIANSON,
)
Complainant,
v.
)
PCB 90—59
(Enforcement)
THE AMERICAN MILLING CO.,
)
)
Respondent.
MICHAEL
CHRISTIANSON PRO SE.
MICHAEL
C. O’NEIL, KECK, MAHIN
& CATE, ON BEHALF OF RESPONDENT.
INTERIM OPINION AND ORDER OF THE BOARD
(by M. Nardulli):
This matter is before the Board on the April
16,
1990 filing
of a formal complaint filed by complainant Michael L. Christianson
(Christianson)
against
respondent
The American
Milling
Company
(American)
pursuant
to
Section
31(b)
of
the
Environmental
Protection Act.
(Ill. Rev. Stat.
1989,
ch. 111 1/2, par. 1031(b).)
Christianson alleges that noise emitted from American’s property
unreasonably
interferes with complainant’s enjoyment of life
and
lawful activity.
(Ill.
Rev.
Stat.
1989,
ch.
111 1/2,
par.
1024;
35 Iii. Adm. Code 900.102.)
Hearings were held in Pekin, Illinois
on July 27,
1990 and September
6,
1990
at which
members of
the
public attended.
FACTS
Christianson has
lived
in the Normandale
area,
outside
the
city
of
Pekin,
for
approximately
ten
years.
(Tr.
15,
184.)
Norinandale
is
an
isolated
residential
neighborhood
in
an
area
otherwise
zoned
as
industrial.
(Tr.
229.)
The streets
of
the
neighborhood are named after local industries.
American is a grain
processing
plant
located
on
the
Illinois
River.
(Tr.
150.)
American receives
grain
by—products
by
truck
or
rail
into
an
unloading drag conveyor through
a
trough.
(u.)
The c9nveyor
discharges into an enclosed elevator leg which discharges into an
enclosed 16-inch drag conveyor that extends over three hopper bins.
(Id.)
The grain by-product is discharged from the bins at variable
speeds into screw conveyors which set the proportion of the feed
mix.
(Tr.
150-51.)
The product
is collected
on
another
drag
conveyor and
is discharged into an enclosed elevator leg.
(~.)
That elevator leg discharges
into an enclosed pant leg bin with
two hoppers.
(Tr.
151.)
Each of the hoppers discharges into
a
pellet mill before being discharged into
a cooler.
(~.)
After
127—159
2
moving through the cooler, the pellets are discharged to another
conveyor and into a barge.
(Id.)
In addition to American, the following facilities are located
in the
surrounding area:
Conunonwealth Edison
and Pekin
Energy
operate 24—hour—a—day energy plants; Quaker Oats processing plant;
Midwest
Grain’s alcohol production
plant;
and Tazewell Machine
Works,
a brass foundry.
(Resp.
Ex.
1; Tr.
233—41.)
Two railroad
lines abut the waterway below the Peoria Lock and Dam.
(Tr.
229..)
Chi~istianson’scomplaint alleges that all activities
in and
around his home,
including sleep, have been disrupted as a result
of the “loud and incessant noise generated by operations equipment,
operators and vehicles.”
(Complaint at 13)
Christianson alleges
that the noise occurs 24—hours—a—day except for an occasional brief
shut—down.
(~c~.)Christianson requests that American be ordered
to
take
whatever
actions
are
necessary,
suggesting
use
of
“soundproofing,
landscaping,
noise
barriers,
limiting
hours
of
operation and prohibiting drivers from pounding on trucks,
trains
and
bins
with
hariuners
...,
installation
of
mufflers,
noise
deadeners or sound—cancelling devices.”
(~.
at 13—14.)
Mr. Christianson testified that the noise from American could
be heard 24 hours a day.
(Tr. 183.)
The most disruptive noise is
the pounding and hammering on the delivery trucks and train cars
to loosen the gluten.
(Tr. 184—85.)
Christianson also complained
about the vibrators used to loosen the grain,
the idling of truck
engines
and crashing
of
end
loaders.
(Tr.
185.)
Christianson
testified that the noise
from American disrupts every
activity,
including entertaining and sleeping.
(Tr. 184, 186.)
Christianson
also testified that he was able to discern the sounds
as coming
from
American’s
plant
rather
than
from
the
other
industrial
facilities in the area.
(Tr.
190—201.)
Several witnesses living in the Normandale area testified on
behalf of petitioner.
(Tr.
21-90.)
Again the common complaint
centered on the pounding on trucks and train
cars,
and the sound
of vibrators, all hours of the day and night.
(Tr. 23-27;
43; 56-
57,
66; and 86.)
The witnesses testified that the noise interfered
with sleep and daily normal activity.
(Tr. 27—29;
43; and 60.)
Dave Jump,
owner
of American,
testified both
~as
an adverse
witness and on behalf
of American.
.
American began
operations
in
September of
1985
(Tr.
228),
employs
13 full—time employees
(Tr.
241)
and spends approximately
$20 million locally per year
(Tr.
241).
Jump testified that American had
adopted• a policy
of not
allowing its employees to beat on the trucks and cars to loosen the
gluten and warned independent truckers that they would not be used
if they violated this policy.
(Tr. 99,
111 and 244.)
Signs were
posted telling drivers not to pound on the trucks.
(Tr.
251.)
Jump testified that American bought several trucks so that it would
be able to control the pounding by using fewer independent truckers
127—160
3
and had enclosed the conveyors in part to reduce noise.
(Tr.
111;
252.)
Jump also testified that he could hear noises from other
industries
while
at
the American
plant,
including
pounding and
hammering from Pekin energy and Midwest Grain.
(Tr. 258-59,
267.)
Scott Wenger,
a part—time employee of American who lives
in
the
Normandale
Area,
testified
that
he
can
hear
noise
from
Commonwealth Edison,
Pekin Energy and American and from the trains
when in his backyard.
(Tr.
461-62.)
Wenger testified,
however,
that he cannot hear noise when he
is
inside and has no trouble
sleepin4.
(Tr. 464.)
Bruce Stockmeier, manager of Industrial Hygiene Services and
Environmental Science and Engineering, testified regarding a sound
study prepared at the request of American.
(Tr. 294; Resp.
Ex.
7.)
Christianson attempted to introduce the testimony of Gregory Zak,
employed
by
the
Illinois
Environmental
Protection
Agency
to
supervise noise control at Superfund sites,
and
a study prepared
by
Zak suggesting certain remedial actions to reduce
the noise
emanating from American.
(Tr. 477, 502—04.)
However,
the hearing
officer granted American’s objection to the introduction of both
Zak’s testimony and the study.
(Tr. 508-09.)
DISCUSS ION
This
is a “noise nuisance” action pursuant to Section
24 of
the Act
(Ill.
Rev.
Stat.
1989,
ch. 111 1/2, par.
1024)
and 35
Iii.
Adm.
Code 900.102.
(Complaint
at
12.)
Section
24
of
the
Act
provides that “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
...
Accordingly,
the
Board’s
rules
define
noise
pollution
as
“the
emission of sound that unreasonably interferes with the enjoyment
of life or lawful business or activity” and prohibit the emission
of such noise pollution beyond the boundaries of one’s property.
(35 Ill. Adm. Code 900.101 and 900.102.)
Various noise enforcement
cases deç~idedby the Board
include:
Kali
V.
R.
Olson
Mfg.
Co.,
Inc.,
PCB 80—46
(1981),
aff’d,
109 Ill.
App.
3d 1168,
441 N.E.2d
188
(1982);
Citizens of Burbank v. Clairmont Transfer Co.,
PCB 84-
125
(1986); John W. Eirlich v. John Smith, PCB 85—4
(1987); Thomas
&
Lisa Annino
v.
Browning-Ferris Industries,
PCB 97-139
(1988);
Anthony Kochanski
V.
Hinsdale Golf Club, PCB 88-16
(1989),
rev’d,
197
Ill.
App.
3d 634,
555 N.E.2d 31
(1990); William Brainerd
v.
Donna Hagen et al.,
PCB 88—171
(1989);
Brian
J.
Peter v.
geneva
Meat and Fish Market, PCB 89-151 (1990); Will County Environmental
Network
v.
Gallagher Asphalt,
PCB
89—64
(1990);
Kvatsak
v.
St.
Michael’s Lutheran Church,
PCB 89—182
(1990);
Zivoli
v.
Prospect
Dive and
Sport Shop,
PCB 89—205
(1991); Village of Matteson
v.
World Music Theatre,
PCB 90—146
(1991).)
The instant complaint
does not rely on the Board’s numerical sound limitations to prove
a violation.
127—16 1
4
Before addressing the main issue in this case, the Board must
address American’s contention that “compliance with the objective
regulatory
standards
governing
sound
emissions
will
preclude
finding a viOlation of the public nuisance regulatory provision.”
(Resp.
Brief
at
12;
Tr.
316.)
According
to
American,
“tjhe
objective uncontroverted evidence of American’s
...
compliance with
the
regulations
should
be
a
complete
defense
to
Complainant’s
action.”
(Id.)
It
is
well-established
that
a
cause
of
action
for
noise
pollutidn exists independent of the numerical noise standards set
forth
in Subtitle
H of the Board’s regulations.
(Illinois Coal
Operators Assoc.
V.
PCB, 59 Ill.2d 305, 319 N.E.2d 782, 785 (year);
Annino v. Browning-Ferris Industries of Illinois, PCB 87-139 at
9
(August 18, 1988).)
“Compliance
with one set of regulations (the
numerical noise emissions values) does not. present an absolute bar
to a finding of violation regarding another set of regulations (the
general nuisance noise prohibitions)
.“
(Will County Environmental
Network v.Gallagher Blacktop, PCB 89-64 at 8 (January 11, 1990).)
consequently,
while
a
properly
prepared
study
establishing
compliance with the numerical noise standards may be relevant
in
a nuisance
action,
it does not preclude
a
finding of violation
based upon unreasonable interference.
Section
900.103(b)
of the Board’s
noise regulations
sets
forth .measurement procedures and provides that “all
measurements
and all measurement procedures to determine whether emissions
comply with 35
Ill. Adm. Code 901 shall be in
conformity with ANSI
and
shall,
with the exception
of measurements
to determine
whether emissions
...
comply with 35
Ill.
ADm.
Code 901.109,
be
based on LEQ averaging,
as defined in
35
Ill.
Adm.
Code 900.101,
using a reference time of one hour.”
(See also, In the Matter of:
General Motors
Corp.
Proposed
Amendments to
35
Ill.
Adm.
Code
900.103 and 901.104, R83—7
(January 22,
1987); Village of Matteson
v.
World Music Theatre,
PCB 90-146
(September
12,
1991).)
While
the study introduced by American (Resp.
Ex.
7) may or may not show
compliance with instantaneous values
(Tr.
402),
the study
is not
based upon LEQ averaging using a reference time of one hour and was
not prepared
in accordance with Board regulations.
(Tr.
372-73,
379,
480,
549—551.)
The threshold issue
in any noise enforcement proceeding
is
whether the sounds have caused some type of interference with the
complainant’s enjoyment
of
life or lawful business
or
activity.
If
there
is no
interference,
no
“noise nuisance”
violation
is
possible.
(Zivoli v.
Prospect Dive and Sport Shop,
PCB 89-205 at
9
(March
14,,
1991).)
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.
(Id.;
Kvatsak
v.
St.
Michael’s
Lutheran
Church,
PCB 89-182
(August 30,
1990).)
127—162
5
The testimony given
at hearing establishes that the sounds
emitted by American have caused interference with the complainant’s
enjoyment of
life
and
lawful
activities.
Christianson and
the
other witnesses
from the Normandale
area consistently desOribed
the pounding and hammering on trucks and train cars, the vibrators,
the idling of truck engines and the banging of end loaders.
(Tr.
23,
25,
43,
44,
55,
56,
66,
86,
184,
185.)
While
the record
establishes that other facilities in the immediate area also emit
sounds,
the witnesses testified that they could distinguish
the
sounds as coming from American and several of them testified that
they sa~Jdrivers pounding on trucks and cars at American.
(Tr. 24,
37,
49, 50—54,
58,
190.)
The witnesses also stated that the noise
occurs on
a 24—hour basis and that it interferes with
sleep and
normal
enjoyment
of
life.
(Tr.
26,
43,
56,
60—61,
183,
186.)
Based
upon these
facts,
the
Board
finds
that interference
with
complainant’s life and lawful activity has occurred.
Having
found
that
the
sounds
have
interfered
with
Christianson’s enjoyment
of
life
and
lawful
activity,
the
next
issue is whether the interference is unreasonable.
Sounds •~donot
violate the Act or Board regulations unless they cause unreasonable
interference
with the
enjoyment
of
life
or
lawful
business
or
activity.
The “reasonableness” of the noise must be determined in
light of the factors set forth in Section 33(c) of the Act.
(Ill.
Rev. Stat.
1989,
ch. 111 1/2, par. 1033(c); Wells Manufacturing Co.
v.
PCB,
383 N.E.2d 148,
150—01
(1978); Ferndale Heights Utilities
Co.
V.
PCB,
358
N.E.2d
1224
(1st
Dist.
1976).)
.
The
relevant
factors
are:
(1)
the
character
and
degree
of
injury
to,
or
interference with,
the protection of the health,
general welfare
and physical property of the people;
(2) the social and economic
value of the pollution source;
(3) 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;
(4)
the
technical
practicability
and
economic
reasonableness
of
reducing
or
eliminating
the
emissions
resulting
from
such
pollution
source;
and
(5)
any
subsequent
compliance.
(Ill, rev.
Stat.
1989,
ch.
111 1/2,
par. 1033(c).)
Character and Degree of Iniury
In
assessing
the
character
and
degree
of
the
injury
or
interference caused by the noise emissions from American, the Board
looks to whether the noise substantially and frequently interferes
with the
use
and
enjoyment
of
life
and property,
beyond minor
trifling
annoyance or discomfort.
(Kvatsak,
PCB
89-182
at
9.)
Here,
the record establishes that Christianson’s sleep has been
affected by the noise,
the noise interferes with entertaining at
home because
it can be heard throughout the house even with the
windows
closed.
(Tr.
184-86.)
Christianson testified that he
cannot
enjoy
his
backyard
and
that
the
24-hour-a-day
noise
“disrupts
every
activity
in
our
household.”
(Tr.
185-86.)
Witnesses
testifying
on
behalf
of
complainant
reiterate
these
12~—163
6
complaints.
Hence, unlike Kvatsak where nighttime interference was
not
at
issue and the
Board
found
that the record revealed only
minor annoyance, the instant record establishes a substantial and
frequent interference.
Social or Economic Value of the Source
The
record establishes
that American employs
13
full—time
employees at a total annual salary of approximately $250,000.
(Tr.
242.)
Annually, American spends $20 million locally.
(Tr.
241.)
American provides valuable services and is an economic benefit to
the community.
Suitability or Unsuitability of the Source
The record establishes that the Normandale area is an isolated
residential community located in an area otherwise zoned industrial
or
commercial.
(Resp.
Ex.
1.)
American
is
only
one
of
many
industries located around the Normandale are.
(a.;
Tr. 229,
233-
41.)
Christianson testified that Pekin Energy is 6-8 blocks from
his property and that Commonwealth Edison is approximately
1 mile
from his
home.
(Tr.
189.)
Industry has located
in
this
area
because
of
the
accessibility
to both
a
navigable waterway
and
railroads.
Although
complainant
moved
to
the
area
prior
to
American,
it
is
hard
to
conceive
of
an
area more
suited
for
American’s facility.
Technical Practicability and Economic Reasonableness of Control
Initially,
the Board
must address complainant’s continuing
objection to the
hearing officer’s
ruling excluding
the charts
prepared by Gregory
Zak and Zak’s
testimony
regarding possible
abatement measures.
(Tr. 486—512.)
After testifying regarding the
reliability
of
the
noise
study
prepared
by
Stockmeier,
Zak
testified
as
to
possible
solutions
to
the
noise
problem
and
complainant attempted to introduce two exhibits prepared
by
Zak
outlining possible abatement measures.
(Tr. 486; Compi. Ex.
15 and
16.)
American objected to this evidence because it was introduced
on rebuttal rather than in complainant’s case—in—chief, and because
it was not disclosed
in discovery.
(Tr. 487—502.)
The hearing
officer granted American’s objection finding that the testimony
could not be presented on rebuttal and that the charts should have
been disclosed in discovery.
(Tr. 508-09.)
The
record
establishes
that
Christianson,
as
a
pro
se
litigant, was afforded some leeway throughout the hearings.
The
Board agrees with the hearing officer’s finding that the evidence
should have been disclosed in discovery so that American would have
an opportunity to respond and that
it was not proper to present
Zak’s testimony on abatement measures during rebuttal when this
issue was not addressed by American.
Such evidence should
have
been introduced
by complainant
in his case-in-chief.
The Board
127—164
7
upholds the hearing offic~er’sruling excluding both Zak’s testimony
regarding abatement and the exhibits prepared by Zak.
The focus
of
inquiry
into the technical practicability and
economic reasonableness of control measures is on what can be done
about the allegedly offensive noise.
(Zivoli, PCB 89-205 at 12.)
In the absence of Zak’s
testimony,
the record
is sparse on this
factor.
It would appear to be impossible to totally eliminate the
noise
emissions without
ordering that
the
facility be
closed.
Complaii~antdoes not suggest such action in his request for relief.
(Complaint at 14.)
Christianson does suggest use of mufflers and
enclosure.
(~4.;
Comp. Brief at 2.)
Jump testified that the fans
were already partially enclosed and that it was not feasible to
further enclose them.
(Tr. 142-43.)
Jump also testified that “all
of the conveyors
in the plant are enclosed.
There are
no belt
conveyors,
for
instance,
in the plant.
All conveyors are either
enclosed drag conveyors or screw conveyors
....
there’s processing
equipment that just by its very nature is enclosed or has mufflers
(Tr. 251—52.)
“The trucks, of course, all have mufflers
The generator,
of
course,
has
a very,
very large muffler.’
(Tr.
252.)
The record reveals that Christianson’s primary complaint is
the pounding and hammering on delivery trucks and trains cars to
loosen gluten.
(Tr.
184; Comp.
Brief at
2.)
This complaint was
reiterated by complainants’ witnesses as being the most disturbing
noise.
Jump testified that American adopted a policy against such
activity and had posted signs prohibiting this conduct.
(Tr.
99-
111,
117,
244-51.)
According to Jump, American purchased its own
trucks in an attempt to control such conduct.
(Tr. 111.)
However,
Jump also stated that it was not feasible to rely solely upon its
own trucks for delivery.
(Tr.
116.)
The
Board
finds
that
it
is
technically
feasible
and
economically reasonable to make some reduction
in noise
levels.
However,
the
Board
cannot
determine
from
the
record
what
alternatives
are
available
and
the costs
associated
with
such
alternatives.
Subsequent Compliance
In
addition
to
the
enclosures
and
procurement
of
trucks
discussed above,
the record indicates that American posted signs
prohibiting
beating
on
trucks
to.
loosen
material,
barred
independent
truckers
who
violated
this
policy
and
informed
employees both orally and in a written memorandum that they must
reduce noise emissions. (Tr.
244,
251; Resp.
Ex.
2 and 3).
Conclusion on Unreasonable Interference
The Board finds that,
based upon the facts
of this case
in
light
of
the
Section
33(c)
factors,
American’.s
operations
12
7—165
8
constitute
an
unreasonable
interference
with
complainant’s
enjoyment of life and lawful activity.
Therefore, the Board holds
that American has violated Section 24 of the Act and 35 Ill.
Adm.
Code 900.102.
REMEDY
Section 33 of the Act allows the Board to impose penalties,
direct respondent to cease and desist from future violations and
to
enter
a
final
order
which
it
deems
appropriate
under
the
circums’t~ances.
(Ill.
Rev.
Stat.
1989,
ch.
111 1/2,
par.
1033.)
In
the
instant
case,
because
Zak’s
testimony
and charts
were
excluded from evidence,
the record
is insufficient to support
a
detailed order
directing what specific steps must be taken,
and
under what time-frame,
to abate the noise pollution.
(See ,~.g.,
Will
County Environmental Network v. Gallagher Blacktop, PCB 89-
64
(January
11,
1990);
Burbank v. Overnite Trucking,
PCB
84-124
(August 1, 1985).)
However, the record does clearly establish that
the pounding
and
hammering
on
trucks
and train
cars to
loosen
gluten
is a major source of the unreasonable interference.
It
is
certainly technically
feasible
and
economically
reasonable
for
American to enforce its policy against such activity and cease and
desist from such conduct at all times, day and night.
In order to fashion
a remedy in this case, the Board believes
that the Zak testimony and exhibits must be included in the record.
Because American’s primary objection to this evidence was that it
was prejudiced by its inability to effectively respond, the Board
directs American to either file a written response to the abatement
measures suggested by Zak’s testimony and two exhibits or prepare
its own abatement study addressing methods
of reducing noise and
costs associated with those methods.
To ensure that American has
access to the two exhibits prepared by Zak, complainant shall serve
the two documents on American no later than December
9,
1991.
The
Board
retains
jurisdiction
over
this matter
pending
receipt
of
American’s response, Christianson’s reply and final disposition of
this
case.
American’s response shall
be filed with the Board no
later than February 3,
1992.
Christianson’s reply shall be filed
with the Board no later than February 24,
1992.
This interim opinion constitutes the Board’s findings of fact
and conclusions of law in this matter.
ORDER
1.
The Board
finds that American Milling Company has violated
Section
24 of the Act and 35 Ill. Adm.
Code 900.102.
2.
American
is
hereby
ordered
to
enforce
its
policy
of
prohibiting employees and independent drivers from beating,
pounding
or
hammering
on trucks
and
train
cars
to
loosen
gluten at American’s plant and is ordered to cease and desist
127—166
9
from such conduct at all times, day and night.
3.
American
shall
file
its response to
the
Zak testimony
and
exhibits
or
its
own
abatement
study
concerning methods
of
noise reduction and costs. of such reduction with the Board no
later
than
February
3,
1992.
Complainant
shall
file
its
reply.
with
the
Board
no
later
than
February
24,
1992.
4.
The
Board
retains
jurisdiction
over
this
matter
pending
receipt
of
American’s
report
and
complainant’s
response
and
fir~aldisposition of this case.
IT IS SO ORDERED.
I,
Dorothy N.
Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify,that the above Opinion and Order was adopted
on
the
~
day of
/—z~~-ky
,
1991 by a vote of
________
I,
~rTh
.~‘7
1
,k.f
,~—,2,
‘~/
.“~
~
‘(_-,&..
.~.
/
Dorothy
Mv7Gunn,
Clerk
Illinois
?.o’llution
Control
Board
127—167
