ILLINOIS POLLUTION CONTROL BOARD
September 12,
1991
VILLAGE OF MATTESON,
)
)
Complainant,
)
v.
)
PCB 90—146
(Enforcement)
WORLD
MUSIC
THEATRE,
)
JAN
PRODUCTIONS, LTD.,
)
DISCOVERY SOUTH GROUP,
LTD.,
)
and GIERCZYK DEVELOPMENT,
INC.,
)
)
Respondents.
ORDER OF THE BOARD
(by B.
Forcade):
On September 3,
1991, World Music Theatre (“Theatre”)
filed
a Motion for Reconsideration of the Board’s August 22,
1991,
Order.
That motion asks the Board to:
(1) not
require
time-
histories of sound data and narrative notations on ambient
conditions,
and
(2) not take certain future actions regarding
sound limitations.
In addition, on August 28,
1991, Theatre’s
consultant filed a letter with the Board requesting clarification
or elaboration.
On September 3,
1991, Theatre filed additional
data collected on July 19,
1991.
The motion for reconsideration is granted.
Theatre’s motion raises essentially two arguments.
First,
Theatre argues that without a motion from the parties or prior
notice to Theatre, the Board took improper action.
That improper
action was to modify data collection techniques to include time-
histories and to require narrative notations on whether Theatre’s
sound is audible at the monitoring location.
Theatre asserts
these modifications are illegal, vague and technologically
infeasible.
Theatre asserts that the August 22,
1991 Order
amounts to an ad hoc modification of a Board regulation (the one-
hour Leq averaging adopted in R83-7) without following the
Administrative Procedure Act rulemaking procedures.
Second,
Theatre asserts that the Board is attempting to
craft,
in an
illegal manner,
a future regulatory measurement scheme which when
applied to the existing actual sound levels will create the
artificial appearance of a violation.
The Board does not believe that the August 22,
1991 Order
constitutes a modification of sound measurement techniques
contemplated before or during the R83-7 regulatory proceeding
that adopted the one-hour Leq averaging time.
The data
collection techniques contemplated by good engineering practice,
the record in R83—7, and prior guidance documents from Illinois
Environmental Protection Agency
(“Agency”),
all dictate more
detailed
procedures
than
followed
in
the
final
report.
126—19
2
Data collection was discussed frequently in the R83-7
proceeding.
In each instance, individual data points were
recorded and preserved for subsequent mathematical manipulation
to derive the one—hour Leq:
In the absence of significant sources of sound
in
the
community
other
than
the
one
being
monitored, the process of data collection and
interpretation
would
follow
this
pattern.
First,
a
one—hour
tape
recording
would
be
obtained of the source at the receiving site.
Second,
this tape would be processed just as
it is now, except that 3,600 one—second sound
samples would be
averaged.
Compliance with
Rules
202,
203,
204,
205
and
207
could
be
determined directly from the computer output
in the same manner currently employed.
(R.
341—2)
The record also discussed how the sound collection techniques
employed before R83-7 would have to be modified to adapt to the
new regulation:
In order
to make this instrumentation set—up
practical for determining the one—hour Leq of
community sounds, the following changes would
have to be made:
1.
A
tape
recording
of
the
sounds
to
be
studied
must
be
obtained
that
includes
at
least one hour of valid data.
2.
The
existing
program,
used
in
the
HP
computer
to
monitor
the
B&K
2131
must
be
corrected to use the correct formula...
The third thing that would be necessary would
be to use the same process that was originally
used to generate the data on page 8 of Exhibit
E,
except that instead of
stopping the test
after 157 seconds, the test would continue for
a full 3,600 seconds.
That would give us one
hour of data...
(R.
333—4)
A more detailed evaluation of good sound data collection protocol
was provided as background when discussing the pre—regulatory
modification to change the averaging time to one—hour:
Tape recordings of the sound at each location
were
made
for
five,
ten
or twenty
minutes,
126—20
3
depending on the conditions observed.
Voice
commentary was recorded in order to document
the sounds heard as well as the wind and other
conditions
that
occurred
during
the
recordings.
Calibration signals were recorded
at the beginning and end of each tape as well
as
at
intermediate
times
such
as
when
relocating to a new measurement site occurred.
In
terms
of
analysis
methods,
after
the
completion of measurements, the recorded data
was analyzed in several stages of increasing
complexity.
In the first stage,
strip chart
records of the A—weighted sound
levels were
made from the recordings.
Each strip
chart
record
was
annotated
using
the
commentary
recorded
on
the
cue
track
concerning
conditions under which the magnetic recording
was made.
These
records were used to check
plant-emitted
sounds
against
the
impulsive
sound
emission
limits,
as
well
as
to
help
identify
events
such
as
interference
from
traffic or aircraft.
The second stage of analysis involved octave
band
and
one-third
octave
band
frequency
analyses
of
the
data
to
compare
with
the
octave band
limitations
for particular
land
classes
as
well
as
Rule
207.
A
computer
program was developed to control
a B&K 2131
one—third octave band real time analyzer,
or
RTA, and to store the output spectrum of the
analyzer for further analysis by the computer.
An
editing
process
helped
eliminate
the
effects of interfering noise sources such as
let planes and traffic, which were obviously
not
part
of
the
plant-emitted
sound.
The
editing was
performed
interactively
on the
computer with the operator,
using the strip
chart records and annotations as guides.
(R.
189—191)
(Emphasis Added)
The Board’s previous Orders to collect and preserve the
underlying data prior to time—averaging have not been an attempt
to modify sound data collection techniques anticipated prior to
and during R83-7.
Those Orders have been an attempt to secure
data that Respondent should have collected.
For each Leq value
provided by EASI,
the underlying 3,600 one-second valid sound
values in dB in each octave band would have been adequate.
Alternatively, a strip chart recording for each octave band would
be
appropriate.
126—2 1
4
Voice or written commentary to describe the sounds heard
would be adequate as described in the emphasized text above,
but
it must be correlated with the data segments in some manner (such
as recording on the cue track or time marks on both data and
narrative tapes).
EASI comments, such as that sound was “totally
inaudible” or “clearly audible”
(final report, p.9),
would
certainly be part of such commentary.
EASI’s own language in the
final report at p.
18 underscores the importance of narrative
descriptions by a trained technician on the audibility of the
music being coupled with data from the monitoring locations.
Even the sound monitoring procedures employed before the
R83—7 proceeding contemplate such narrative descriptions.
State
of Illinois, The Environmental Protection Agency, Measurement
Procedures for Enforcement of Noise Pollution Control Regulations
(Parts
1
&
2),
(February 1980).
That document was codified as
part of the Illinois Administrative Code by the Agency.
These
regulations are found at 35
Ill. Adm. Code 951.100,
et.
seq.
(1985).
The regulations generally describe good sound data
collection techniques,
including the use of a magnetic tape
recorder.
The collection of narrative information is discussed
at 35 Ill. Adm. Code 951.105
(c), Data Collection and Operation
:
(7)
While
measurements
are
being
taken,
visual
and
aural
surveillance
of
extraneous sound sources and varying wind
conditions should be made to insure that
the
conditions
of
measurements
are
accurately known.
Record any variations
in these parameters that may affect data.
Such raw sound data, when correlated with the voice
commentary or annotation described above, would allow the Board
to understand the sound situation more clearly.
Providing the
Board with a copy of the underlying tape recording of recorded
sounds and cue track might be helpful, but is not necessary.
The
Board is attempting to discover what portion of the numerically
recorded sound values are coming from Theatre.
By the reasonable
exercise of professional judgetnent EASI can help the Board
acquire such information if it chooses to do so.
The Board will
not speculate on why such procedures were not followed in prior
sound data collection.
However, the Board anticipates that
~
future sound data collection will employ such procedures,
including the use of a magnetic tape recorder.
In addition to difficulties with the raw data collection and
preservation, the Board must note that the sound data after
complete analysis does not fulfill the objectives stated in the
Board Order of April
25,
1991.
In that Order the Board stated:
126— 22
5
The Board
will
also
require meaningful
and
effective noise monitoring by an independent
consultant.
That monitoring can be utilized
to evaluate compliance with existing numerical
regulatory limitations on sound emissions....
The
sound
limitations
of
Section
901.102
already apply
to the Theatre
independent of
this
proceeding.
The
Board
is
simply
reiterating those requirements and providing
an obligation to monitor and report so that
compliance with
35
Ill. Adm.
Code 901.102
is
clearly demonstrated.
(Opinion and Order,
p.37)
The obligation placed on Respondent was to monitor sound impacts
from Theatre to evaluate compliance with Section 901.102.
That
has not been done.
First, the information provided to the Board
makes no attempt to evaluate what portion of the data is
legitimately recorded sound from Theatre.
The final report
states generally that meaningful measurements are infeasible and
that sound averaging times are unrealistically long.
However,
the Appendix B data frequently lists Leq values of sound
emanating from Theatre while also showing asterisks to indicate
values that are obscured by ambient or not measurable.
The Board
cannot determine whether EASI
is asserting that
~
data is
invalid or just the data marked by asterisks.
Second, the Board has found very few data sets collected by
EASI that contain the minimum regulatory requirement of one-hour
of valid data
(data sets seem to vary from about
11 minutes to
about
55 minutes).
The Board anticipates that as many valid one-
hour data sets as can be collected during the concerts, will be
collected.
Third,
the data provided in Appendix B is described as “raw
uncorrected Leq values”
(Addendum to final report, August 19,
1991).
Section 901.102 requires Leq values corrected for ambient
pursuant to ANSI S1.13-1971.
For each data set and octave band,
the Board would need a statement regarding correction for ambient
sound.
The Board also would appreciate guidance on the method of
choosing (and method of identifying in the reports) which ambient
data has been used in each data set to correct for ambient
conditions.
Fourth, Theatre has failed to identify the SLUCM code and
land classification category for Theatre and the receiving
locations so that particular identification of the applicable
regulations can be made.
126—23
6
Fifth, and most important, Theatre has failed to identify
whether the individual results show compliance with Section
901.102, or not.
For example, page
3 of the June 4,
1991 letter
in Appendix B seems to indicate that between 10:00 p.m. and 11:00
p.m. the sound emanating from Theatre was measurable and not
obscured by ambient, and that at an octave frequency band of 1000
Hz it had an Leq of 36.
This would appear to be above the
Section 901.102 limitation of 35.
Was Theatre in violation of
the regulatory standard here,
or not?
For each data set and
octave band value the Board would need a statement of whether the
data shows that Theatre is in compliance or non—compliance,
or a
particular explanation for invalidity of the data.
Respondent seems to have chosen a data collection and
analysis protocol that ensures no demonstration of compliance or
non-compliance with Section 901.102 could be made, regardless of
the sound levels.
The Board anticipates that ~j. future sound
collection, data preservation, and data analysis will be
accomplished with a protocol such that the final results will
clearly demonstrate,
for each piece of final data, compliance or
non—compliance with Section 901.102, or a particular reason for
data invalidity.
Information on compliance with numerical
regulatory noise standards is relevant to findings of
unreasonable interference with the enjoyment of life.
James Kali
v.
R. Olsen Manufacturing company,. PCB 80—46
(April
16,
1981).
Moreover,
it is common in Board pollution control schemes to
require pollution sources to monitor compliance or non—compliance
with regulatory standards.
Regarding the second argument in the Motion for
Reconsideration, the Board disagrees with Theatre’s characteriza-
tion.
The Board is not attempting to craft a regulatory standard
that will apply to Theatre.
That standard is now and has been
Section 24 of the Environmental Protection Act and the standards
of
35 Ill. Adm. Code Subtitle H.
In this proceeding, Theatre was
found in violation of the narrative nuisance standards of 35
Ill.
Adm. Code 900.101 and 900.102 and Section 24 of the Environmental
Protection Act and the Board is now attempting to craft a remedy
to abate those nuisance violations.
Acoordingly, while the Motion to Reconsider is granted the prior
Orders of the Board are not modified.
In its Interim Order, the Board stated:
Because
of
the
improvements
made
to
the
facility after
the close
of the last season
(See
Tr.
3
at
pp.
503—504),
the
Board
is
unable to determine if, additional remediation
measures may be necessary.
Thus,
the Board
will require the Theatre to conduct a study of
future
noise
control
options...
The
final
126—24
7
report
can
be
used
as
an
effective
focal
point
for evaluating
future
sound abatement
activities which may or may not be necessary.
(Opinion and Order,
p.
37)
After reviewing the final report the Board is still unable to
determine what,
if any,
specific additional sound abatement
measures are necessary to remedy the noise violations and
alleviate the noise complaints.
Therefore the Board will set
this matter for hearing to determine whether additional sound
control
is needed.
The Board notes that the July 22,
1991 filing
by Natteson (Petition for Additional Interim Relief)
included
assertions that may be relevant to this issue.
The Board anticipates that at hearing two matters may be
discussed.
First, whether unreasonable interference continued
this summer such that additional sound control is necessary to
abate that sound.
Second,
if sound control is necessary, the
Board anticipates testimony on the nature of the sound reduction
needed.
If Matteson does not demonstrate that additional sound
control is necessary, the Board anticipates entering a final
Order that will mandate continuous long—term monitoring.
Such
monitoring must be consistent with the previously described
protocols, and conducted at one or two locations
in the impacted
communities.
Such Order would include a mandate that Theatre
cease and desist from causing future violations of Section 24 of
the Illinois Environmental Protection Act and the narrative
standards of Sections 900.101 and 900.102.
The Order would
specifically mandate that Theatre comply with the numerical
standards of Section 901.102.
Theatre would be free to use the
instrumentation described at p. 21 of the final report if it
chooses to do so.
If Matteson demonstrates that additional sound control is
necessary, the Board anticipates issuing a more detailed cease
and desist Order.
For example, that Order could set particular
measurement times and sound levels that may not be exceeded at
the sound monitoring locations.
In such circumstances, the Board
would anticipate testimony from both Matteson and Theatre on what
averaging time would best characterize measured sound from
Theatre in the impacted communities, and what specification of
maximum and average sound levels for that averaging time would
reduce citizen complaints of unreasonable interference.
In the
absence of testimony to the contrary, the Board might look
favorably on averaging times of less than 10—15 minutes based on
Theatre’s comments on sound fading in and out during that period.
In the absence of testimony to the contrary, the Board might be
inclined to look favorably at the existing regulatory octave band
sound pressure levels since they have remained unchanged since
126—25
8
1972.
Other approaches to ensuring reduction of sound impact may
be advocated by the parties.
Theatre would be free to choose any method,
including the
instrumentation described at p.
21 of the final report, to comply
with the Board’s final Order.
The Board believes that,
under the
particular facts of this case,
its role in abating the nuisance
is best accomplished by setting particular goals for the noise
abatement program,
i.e., noise levels in the impacted community.
Particular mechanisms to achieve those goals are best left to
Theatre.’
The Board will reassign a hearing officer to this matter to
set and conduct a hearing at the convenience of the parties.
Such hearing and post-hearing filings shall be completed not
later •than March
2,
1992.
If Matteson does not wish a hearing,
the hearing officer shall inform the Board so that a final Order
may be entered.
IT
IS
SO
ORDERED.
I, Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board,
hereby certi~rthat the above Order was adopted on the
/~tZ day of
~
,
1991, by a vote of
7~
1*—’
L.
t~~
Dorothy M. /~unn,Clerk
Illinois P~llutionControl Board
126—26