BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
September 12,
1991
FRANKLIN D. VICKERS and
)
RUTH JEAN VICKERS,
)
Complainants,
V.
PCB 91—42
VILLAGE OF MILLSTADT,
)
(Enforcement)
Respondent.
FRANKLIN D. VICKERS AND RUTH JEAN VICKERS APPEARED
PRO SE.
MR. PATRICK M.
FLYNN,
FLYNN
& GUYMON, APPEARED
ON BEHALF OF RESPONDENT.
OPINION AND ORDER OF THE BOARD
(by J.
C. Marlin):
This matter comes before the Board upon a complaint filed
March 11,
1991 by Franklin
D. Vickers and Ruth Jean Vickers
(“Vickers”) against the Village of Millstadt (“Millstadt”)
alleging violation of Section 24 of the Illinois Environmental
Protection Act
(“Act”)
and the Board’s prohibition against noise
pollution found at 35
Ill. Adm. Code 900.102 by the Village’s
emissions from a newly installed emergency warning siren.
Hearing was held June
28,
1991 at the St.
Clair County
Courthouse Belleville,
Illinois.
Mr. and Mrs. Vickers testified
in their own behalf.
Marjorie Galle,
Debbie
(Vickers) Steppig
and Eulalia Kohlenberger also testified for the complainants.
Kevin Noerper, the Union Fire Chief,
and Village Mayor Ray Hohet
testified on behalf of the Respondent.
PROCEDURAL HISTORY
The Village filed
a motion to dismiss this matter on April
19,
1991 alleging that the use of its emergency warning siren was
exempted from the Board’s noise regulations by the provisions of
35
Ill. Adm. Code 901.107.
The Village also contended that
it
was “unable to move the siren to another location without
offending someone”.
The Board construed this statement as
questioning whether the Board had the ability to fashion relief
for Complainants.
The Village confessed,
however,
that the
siren’s use as a noon whistle was “open to question”.
The Board denied the Village’s motions for two reasons.
First, the Board held that statutory exemption mentioned did not
give “blanket protection” to all uses of emergency sirens.
In
126—35
fact,
by its terms the exemption is limited to the Board’s
numerical standards,
not the nuisance provisions found in Section
24 of the Act.
Finally, the Board also found that the
speculation as to the difficulty in formulating a remedy did not
deprive the Board of its ability to fashion relief.
Therefore,
the Board found the Village’s motion deficient.
REGULATORY FRANEWORK
Title VI of the Illinois Environmental Protection Act
(“Act”),
Ill. Rev. Stat.
1990 Supp.,
ch.
111 1/2,
par.
1023 et
seq.,
provides procedures and standards for noise control.
Sections’ 23 and 24
of that Title provide:
Section 23
The General Assembly finds that excessive noise
endangers physical and emotional health and well-
being,
interferes with legitimate business and
recreational activities,
increases construction
costs, depresses property values,
offends the senses,
creates public nuisances,
and in other respects
reduces the quality of our environment.
It is the purpose of this Title to prevent noise
which creates a public nuisance.
Section 24
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.
These statutory sections are implemented in administrative
law in two ways.
First, the Board has adopted at 35
Ill. Adm.
Code 900.102
a general,
“narrative” standard:
Section 900.102
Prohibition of Noise Pollution
No person shall cause or allow the emission of sound
beyond the boundaries of his property,
as property
is
defined in Section 25 of the Illinois Environmental
Protection Act,
so as to cause noise pollution in
Illinois, or so as to violate any provision of this
Chapter.
Noise pollution is defined at 35
Ill. Adm. Code 900.101 as:
Noise pollution:
the emission of sound that
unreasonably interferes with the enjoyment of life or
126—36
3
with any lawful business or activity.
In effect, Section 900.102 thereby establishes a regulatory
public nuisance standard for noise control using the statutOry
phrase “unreasonable interference with the enjoyment of life or
with any lawful business or activity”.
The other manner in which
these laws are implemented,
the Board’s numerical emissions
standards found at 35 Ill.
Adm. Code 901.102 et seq.,
are not at
issue in this proceeding.
See Ferndale Heights Utilities Co.
v.
PCB 44
Ill. App.
3d 367—8,
358 N.E.
2d 1228
(1st Dist.
1978).
Various noise enforcement cases, which the Board has
previously decided,
include:
James Kali, Dorothy Kali v.
R. Olson
Manufacturing Co.,
Inc.,
PCB 80-46, 41 PCB 245
(1981),
aff’d 109 Ill. App.
3d 1168,
441 N.E. 2d 185; Citizens of Burbank
v. Overnite Transportation Company, PCB 84-124,
65 PCB 131
(1985),
88 PCB 285
(1988); Citizens of Burbank and People of the
State of Illinois ex. rel.,
Richard N. Dalev v. Clairmont
Transfer Company, PCB 84-125,
74 PCB 255
(1986); John W. Eilrich
v. James Smith,
d/b/a Maywood Shell Car Wash,
PCB 85-4,
77 PCB
245
(1987); Thomas
& Lisa Annino v. Browning-Ferris Industries
of
Illinois, PCB 87-139,
91 PCB 349
(1988); Anthony W.
Kochanski v.
Hinsdale Golf Club,
PCB 88—16,
101 PCB 11
(1989)
; rev’d 197 Ill.
App.
3d
634,
555 N.
E.
2d 31; William E. Brainerd v.
Donna Hagan,
David Bromaghim and Phil Robbins d/b/a The Gables Restaurant,
PCB
88—171,
98
PCB 247
(1989); and Brian J. Peter v. Geneva Meat and
Fish Market and Gary Pikulski, PCB 89—151,
109 PCB .531
(1990);
Will County Environmental Network v. Gallagher Asphalt, PCB 89-
64,
113 PCB 291
(1990); Kvatsak v.
St. Michael’s Lutheran Church,
PCB 89—182,
114 PCB 765
(1990); Zivoli v. Prospect Dive and Snort
Shop,
Ltd.,
PCB 89-205,
____
PCB
____,
March 14,
1991.
BACKGROUND
The Vickers reside at 215 West White Street, Millstadt,
Illinois.
(R.5)
The Vickers residence is located approximately
400 feet from an emergency warning siren installed around June of
1990 by Millstadt.
(R.8)
The siren is installed on top of a
pole in a residential neighborhood and is located adjacent to the
Village Hall on Village property between White and Laurel
Streets.
The siren is tested daily at noon.
(R.
41)
ALLEGATIONS
The Vickers allege
in their complaint that the noises
emitted from the emergency warning siren are in violation of the
126—3 7
4
nuisance provision of 35
Ill. Adm. Code
900.102.1
The Complaint
also alleges that the siren is mounted on a 50 foot telephone
pole,
“weighs 700 pounds and is capable of hitting the 124
decibel range”.
The filing avers that the siren is blown every
noon and to signify fires.
The complaint concludes that the
siren has “destroyed the peace and tranquility of our house,
inside and out
.
.
.
and
is endangering our mental and physical
well-being”.
The Vickers allege that they would like to see the
pollution “stopped” or the siren relocated.
Complaint, p.3.
In support of the allegation of violation of the nuisance
provision,
Mr. Vickers testified as to various experiences,
as
follows:
Q.
Now, tell the Board in your own words why you
have filed this complaint and what conduct you feel
violated the provisions of the Environmental Protection
Agency and the regulations of the Board?
A.
All right....
We
feel like they went a
little overboard with the type of siren whistle that
they bought and installed.
And we feel like it was
installed in the wrong area.
It is installed in a
residential area on a very short pole, which trees and
other stuff all around that is much taller than it.
The sound cannot get out of the neighborhood,
therefore, the neighborhood gets the whole blunt of
it.
And the reason for installing this new system was
supposed to alert more people further away, which it
does not do.
And so consequently the loudness of it
is
very distracting to us in our way of life.
I mean you
can’t really plan on doing anything outside the house,
essentially during the hours when they have the-- like
at noontime when they blow,
at that time,
noontime,
most people
in the neighborhood will go-- most of us
have to plan on possibly curtailing anything that we
are doing outside to go inside to get away from some of
the noise.
Although,
it’s still noisy in the house,
it
does help.
And then at night we are sleeping at night and
1
The Vickers attempted to introduce the results of noise
tests conducted with a Radio Shack sound meter in support of
their allegations.
These were objected to by the Village.
The
Hearing Officer accepted an offer of proof at to their contents
and the foundation for them.
The testimony revealed that the
tests were not made in accordance with Board procedures found at
35
Ill.
Adin.
Code 901.102.
The Hearing Officer’s denial of
admission
is therefore affirmed.
The Board affirms all other
rulings of the Hearing Officer as well.
126—38
5
this thing goes off.
Well,
it literally knocks your
socks off.
It wakes you up.
And so we have just
complaints against the noise.
We feel like it could
have been installed in a more proper place,
installed
more properly than it has been.
And that is what we
are mainly are interested in.
We are not trying to say
that they didn’t need to update their emergency system.
Quite possibly they did.
But
it seemed like they could
have done it a little better and differently.
(R.
6—7)
*
*., *
EXAMINATION
BY MR.
FLYNN:
Q.
Where do you propose to move the emergency
warning device?
A.
Well,
I
feel like that should be up to the
Village itself.
*
*
*
(B.
11)
Q.
Where it is located right now is really a
central location geographically in terms of the Village
limits;
isn’t it?
A.
Not really.
Q.
Where would you say it is?
A.
I would say that where it
is now, especially
since the new subdivisions just went out,
if you look
at the map it’s more one—sided than the other.
Q.
Well, which side would you say it is sided
toward?
A.
It’s sided toward the south.
Q.
Where would you propose to move this emergency
warning device?
A.
Well,
in our study,
not studies,
in our own
mind we feel like if
it were put down in the City Park
near the tennis court, the closest neighbor or resident
would be, as
I recall,
about two and—a—half blocks
away;
and if it were put on a taller pole,
as
I have
said before,
it wouldn’t bother them, and the sound
would get out around the town and the rest of the
surrounding areas of the town, which is another thing
it was originally supposed to do.
(R.
14)
126—39
6
Mrs. Vickers also testified as to the effect the noise had
on her.
She believed the siren sounded “for a minute” every
noon.
(B.
22)
She continued:
MRS. VICKERS:
Well,
I know that I more or less
plan my day--
if I’m going to be outside to work in the
yard or something,
I keep an eye on the time because
I
don,’t want to be outside when the siren blows.
Because
you have to cover your ears, because it actually hurts
your ears.
And I go inside
until
it is over with,
and
then
I come back out again and finish what I’m doing.
HEARING OFFICER:
Now, do you know what type of
siren this is?
A.
Yes, here it
~5.
WPS 2,700 electronic civil
defense siren, manufactured by Wayland Engineering
Company,
Chester, Connecticut.
(B.
21)
Q.
...
Go ahead and tell us more.
A.
Well,
when you wake up at night,
it doesn’t
sound like an ordinary siren.
It is blasted out and
kind of blasts you up and wakes you up, you know, your
heart starts beating and adrenaline starts flowing.
It’s very annoying and very piercing.
(B.
25)
She stated that people farther away hear it much differently
than she does.
(B.
55)
Mrs. Vickers would like to see the siren
moved to an area less residential.
(R.
30)
Marjorie Galle, who lives at 116 West Laurel in Millstadt,
approximately 200 feet from the siren’s location, described its
noise as “ear—piercing”.
She continued:
At night
I will sit bolt upright in bed.
It
frightens me.
When I’m on the telephone,
I have to
close my conversation until
it is over with.
It is so
loud that the people at the other end can hear it.
And
the grandchildren when they are over,
is
—
you have to
cover their ears.
We all have to cover our ears it
is
so loud.
(B.
32-
34)
Debra Steppig, of 215 East Goedig in Millstadt owns rental
property located approximately 400 feet from the siren.
She
testified that when she is at the rental property she also has to
cover her ears when the siren sounds.
(R.
36)
She believes the
siren should be relocated.
(B.
37)
126—40
7
Eulalia Kohlenberger lives at 210 West White Street in
Millstadt.
Her house sits approximately 200 feet from the siren.
She testified that the siren hurts her ears and rattles the
windows of her home.
She positions herself to be indoors when it
goes off.
(B.
38)
She also believes it should be relocated so
that it is not disturbing to Millstadt residents.
Kevin Noerper, Fire Chief for Union Fire Company,
the fire
company that services Nillstadt, testified for the village.
He
stated that the siren is tested for approximately 20 seconds at
noon daily.
The siren hits an audible peak for a split second,
he testified.
The location selected was based upon the
recommendation of the siren factory representatives.
He believes
the siren to be centrally located.
(B.
42)
In his opinion,
if
the siren were to be located in the city park area,
it would not
be heard by all city residents.
(B.
43)
The emergency warning sirens are the only available method
to alert the all—volunteer fire department consisting of about
35
men.
When the siren is activated,
it is done so simultaneously
with two others.
(B.
44)
Mr. Noerper does not find any of the
three sirens offensive.
(B.
48)
Ray Hohlt, the village mayor,
also testified on the
village’s behalf.
He stated that the siren was centrally
located.
He also testified that the Millstadt received a
petition, signed by 200 people,
in support of the siren’s
location.
He also corroborated the testimony that the siren’s
placement followed the manufacturer’s recommendation.
(B.
52)
FINDINGS
The Board finds that its review of the testimony and
exhibits in this case establishes an interference with
Complainants’ enjoyment of life,
and that such interference is
caused by the noise emissions from the Village of Millstadt’s
emergency warning siren located next to the Village Hall.
The
Complainants must curtail outdoor activities when the siren
sounds.
Phone conversations are disrupted by the sound.
The
sound hurts the ears of the Complainants and in the words
of a
neighbor is “ear-piercing”.
This testimony establishes an
interference with Complainants’ enjoyment of life.
The Board
must now evaluate the factors in Section 33(c)
of the Act to
determine if such interference is unreasonable.
Wells
Manufacturing Co.
v.
~
73 Ill.
2d 232—3,
383 N.E. 2d 150—1
(1978).
Section 33(c)
Factors
The Board is charged under Section 33(c)
of the Act
(Ill.
Rev.
Stat.
1990 Supp.,
ch.
ill 1/2, par.
1033
(c)) to take into
consideration all the facts and circumstances bearing on the
126—4 1
8
reasonableness of the emissions.
Such consideration includes:
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 or reducing or eliminating the
emissions,
discharges or deposits resulting from such
pollution source;
5.
any subsequent compliance.
(Section 33(c)
of the Act)
The Board considers these factors as follows:
As regards Section 33(c)(l), the Board finds interference
with the general welfare of Mr. and Mrs. Vickers.
According to
the Vickers, outside activities are disturbed because of the
intensity of the noise.
Mrs. Vickers must cover her ears when it
blows.
Marjorie Galle,
a neighbor, also described it as “ear—
piercing”.
Another neighbor testified she must also cover her
ears when it sounds.
We therefore find that the intensity of the
siren’s emission cause substantial discomfort during the periods
it operates.
This finding is mitigated by the social and economic value
of the pollution source, Section 33(c)(2).
The source is an
emergency warning siren.
Its very nature is to assist in the
protection of the health, general welfare and physical property
of the people of Millstadt.
We find, therefore,
that the siren
has great social and economic value.
The Vickers were living in the residential area at the time
of installation of the warning siren and so enjoy priority of
location, Section 33(c)(3).
However, the remaining issue under
this criteria is whether the pollution source is suitable to the
area in which
it is located.
The warning siren is stationed in a
residential area next to the Village Hall.
The siren sounds
every day at noon as a test.
The test lasts between twenty
seconds and one minute and peaks only a fraction of that time.
The immediate location was described as being surrounded by large
126—42
9
trees.
Apparently,
the height of the siren does not exceed that
of the trees.
Seventy people live within the same radius of the
siren as do the Vickers.
The Complainants argue that, because of
these facts,
the location of the siren must be changed or that
its intensity must be moderated.
The Board finds that, regarding suitability of location,
an
emergency warning siren must be located so as to be heard by the
citizenry of Millstadt.
We do not find the siren’s location here
unsuitabLe.
Rather, placement of the siren
in position where it
can be heard is suited to its purpose.
The testimony is
unrebutted that the siren was placed next to the Village Hall
according to manufacturer’s recommendation.
We next turn to the question of whether moderating the
siren’s intensity is technically practicable or economically
reasonable.
(Section 33(c)(4)).
We have already concluded that
the siren’s emissions cause the complainants substantial
discomfort.
However, we have no evidence before us to
demonstrate that the intensity can be further lowered or that
lowering its intensity would allow the siren to function in a
manner sufficient to warn the citizenry.
The siren’s intensity,
by all accounts, does adequately warn the citizenry.
We
therefore are unable to conclude that the siren’s intensity is
unsuitable to its location.
We note, however, that the Village
claims it is voluntarily taking steps to lower the siren’s
intensity and is considering relocation.
(See Motion to Dismiss
filed April
19,
1991,
p.1.)
As a final matter, the record presents a question as to
whether the siren must be tested every day at noon and whether
it
might better be positioned at such a height so as to not “trap”
the sound within the immediate neighborhood.
Fire protection is
an element of public safety that is best handled at the local
level.
This record does not support a finding that a daily test
of the siren
is unreasonable.
The siren is the only means
currently available to quickly notify the volunteer firemen of a
fire.
Thus it is imperative that the village know that it is
functioning properly.
Sounding the siren at a specified time
allows people to prepare for the occurrence,
thus reducing the
“startle effect” associated with unexpected noise.
See In the
Matter of Proposed Amendment to the Noise Regulations
B80-9,
R80-lO
(May
14,
1981)
The Board notes that no evidence was
submitted to show that any other means of testing is available.
Additionally the use of an emergency siren as a “noon
whistle”
is not in and of itself unreasonable.
The record is insufficient to support a finding that it is
technically practicable or economically reasonable to adjust the
position of the siren or change its intensity.
The statements
that the siren was placed where recommended by factory
126—43
10
representatives is unrebutted, yet supported by no documentation.
The siren could be moved to another site or placed at a higher
elevation, but the impacts of such actions are not presented with
sufficient particularity or specificity for the Board to judge
their merit.
We do not find the factor set forth in Section 33(c) (5) to
be at issue in this proceeding.
After reviewing the factors set forth in Section 33(c)
of
the Act,’ the Board finds these noise emissions reasonable.
As a practical matter Millstadt officials are in the best
position to balance the need for a specific siren with the rights
of nearby citizens.
Sirens should be sized and located with the
safety and welfare of all citizens in mind.
The evidence in the
record does not support a finding that the intensity and duration
of the noise
is harmful to hearing.
Millstadt has taken steps to
mitigate the interference caused by the siren and indicates a
willingness to further investigate the matter.
Based on a evaluation of all the evidence and the factors
enumerated in Section 33(c)
of the Act as discussed above, the
Board finds that the noise emissions from the Village of
Millstadt’s emergency warning siren located next to the Village
Hall do not violate the Environmental Protection Act or 35 Ill.
Adm. Code 900.102.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
The Board finds that the Village of Millstadt has not
violated Section 24 of the Act and 35
Ill.
Adm. Code 900.102
through its noise emissions from its emergency warning siren
located next to the Village Hall.
IT IS SO ORDERED.
J. Dumelle and B. Flemal dissented.
J.
T. Meyer concurred.
I, Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board,
hereby certify
tij~3.
the above Opinio~and Order was
adopted on the
/c~
‘~
day of __________________________
1991 by a vote of
__________________.
~,
~
Dorothy M.
/G’ nn, Clerk
Illinois P~JIlutionControl Board
126—44
