ILLINOIS POLLUTION CONTROL BOARD
February 28,
1991
BRIAN J.
PETER,
)
Complainant,
v.
)
PCB 89—151
(Enforcement)
GENEVA MEAT
AND
FISH MARKET,
)
GARY PIKULSKI and JODY C. BOYER,
)
)
Respondent.
SUPPLEMENTAL OPINION
AND
FINAL ORDER OF THE BOARD (by R.C.
Flemal):
As an initial matter, the Board changes the caption in this
proceeding to reflect the name of an additional Respondent,
Jody
C.
Boyer, who, through her attorney, has been responding to Board
Orders, and who is the current owner of the property (See report
filed April
27,
1990).
On January 24,
1991, Respondent filed a motion to reconsider
the Board’s December 20,
1990 Order in this proceeding and to
hold a hearing.
In the alternative, Respondent requested from
the Board an adjusted standard from the applicable noise
regulations.
Complainant filed its reply on February 4,
1991, arguing
that the motion to reconsider is not timely as it was filed more
than 35 days after the Board’s Opinion and Order of March 22,
19901.
In the alternative, Complainant argues that the October
23,
1990 readings taken by the consulting engineers indicate
continued violations of the Board’s nighttime noise regulations,
and asks the Board to impose penalties as indicated by the Act.
The Board finds that Respondent’s motion to reconsider is
timely.
Respondent’s motion contains arguments which address
specific findings contained in the December 20,
1990 Order,
and
is not merely a motion to reconsider the March 22,
1990 Opinion
and Order.
However, the Board finds that Respondent presents no
new material facts which would convince the Board to change the
December 20,
1990 Order.
Respondent continues to argue that the
11n the March 22,
1990 Opinion and Order, the Board found
Respondent in violation of 35
Ill. Adm. Code 900.102 and 901.102
of the Board’s regulations, and ordered Respondent to cease and
desist from such violations.
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consulting engineers’ report shows compliance has been achieved,
except for noise attributable to street traffic and insects.
In its December 20,
1990 Order, the Board found that the
Report of Abatement Procedures and consulting engineer’s report
submitted by Respondent on November 1,
1990 showed continued
exceedances of the Board’s nighttime noise regulations, noting
that some of the exceedances were attributable to rooftop fans
and furnaces.
The Board gave Respondent until January 30,
1991
to demonstrate compliance with the regulations, and further
stated that penalties may be imposed.
Based upon the above, the Board denies the motion to
reconsider.
Furthermore, Respondent has not demonstrated
compliance at any time between March 22,
1990, the date of the
initial Board Order finding Respondent in violation and the date
of this Order.
In that Opinion, the Board reserved its option
under Section 42 of the Illinois Environmental Protection Act
(“Act”), to levy a civil penalty for continuing violations of the
Board regulations.
MAXIMUM PENALTY
As stated in the Board’s March 22 Opinion,
the penalty
provisions under Section 42 of the Act provide for civil
penalties up to $10,000 per violation, with an additional $1,000
per day for each day during which violation continues2.
Since
the record indicates violations from 1987 to the present, the
maximum penalty which could be imposed would be quite large.
STATUTORY FACTORS
As discussed in the March 22,
1990 Opinion and Order, the
Board is charged under Section 33(c)
of the Act to take into
account all the facts and circumstances bearing on the
reasonableness of the emissions,
with such consideration
including:
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
2The penalty provision at the time of the Board’s March 22,
1990 Opinion and Order contained the amounts indicated here.
That provision has been amended effective July 1,
1990 to
increase the amounts to $50,000 per violation and $10,000 for
each day such violation continues.
The Board will here apply the
penalty provision in effect on March 22,
1990.
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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 economic benefits accrued by a noncomplying
pollution source because of its delay in compliance
with pollution control requirements; and
6.
any subsequent compliance.
(Section 33(c)
of the Act)
In determining whether a penalty should now be imposed,
the
Board again considers the Section 33(c)
factors:
As regards Section 33(c)(l), the Board refers to the
findings of its March 22,
1990 Opinion and Order,
where the Board
found substantial interference with the health and general
welfare of Complainant.
For Section 33(c)(2), the Board again accepts that the
Respondent’s facility has social and economic benefit, although
that benefit is diminished by
the
fact that continuing violations
exist.
For Section 33(c) (3), the Complainant has been found to have
priority of location.
There is no information as to the
suitability of location of Respondent’s facility, except that
noise from the facility is impacting the adjacent residence
occupants.
However, the record does not indicate any
noncompliance with local zoning ordinances.
For Section 33(c)(4), since the Board’s March 22 Opinion,
the record now contains information that modifications have been
made which have reduced the numerical noise limits.
As discussed
in Respondent’s April
27,
1990 report,
these include installation
of a plywood enclosure for rooftop condensers,
ninety—degree
elbows fitted to the exhausts of the heat pumps,
and
disconnection of three rooftop air cooled condensers.
The report
further indicates that the ownership of the property had changed,
and that the disconnection of the three condensers was due to a
change in business requirements, rather than due to desire to
reduce the noise.
Also pertaining to Section 33(c) (4), notwithstanding these
building modifications, the numerical noise limits continue to be
exceeded, and no information has been offered as to whether the
failure to meet the limitations are the result of a technical
impracticability.
Also,
no information has been submitted that
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all further possible adjustments which would result in compliance
are economically unreasonable.
However,
Respondent has
requested an adjusted standard in the instant motion.
The Board
notes that Respondent is free to file
a petition for adjusted
standard or site specific rule meeting the requirements for such
petitions pursuant to Sections 106.705 or 102.141 of the Board’s
procedural rules.
As regards Section 33(c)(5), the violations have continued
since November 1987,
and Respondent has been accruing the
economic benefits of operation of its facility without
compliance.
However, the Respondent has spent certain unreported
funds in installing equipment in an attempt to achieve
compliance.
Notwithstanding Respondent’s attempts to achieve compliance
through installing some noise reduction equipment,
compliance has
not been achieved to date, and no indication has been made that
compliance would be forthcoming.
The Board must also consider the factors in Section 42(h)
in
determining whether a penalty shall be imposed.
Section 42(h)
states:
1.
the duration and gravity of the violation;
2.
the presence or absence of due diligence on the part of
the violator in attempting to comply with requirements
of this Act and regulations thereunder or to secure
relief therefrom as provided by this Act;
3.
any economic benefits accrued by the violator because
of delay
in compliance with requirements;
4.
the amount of monetary penalty which will serve to
deter further violations by the violator and to
otherwise aid in enhancing voluntary compliance with
this Act by the violator and other persons similarly
subject to the Act; and
5.
the number, proximity in time,
and gravity of
previously adjudicated violations of this Act by the
violator.
Respondent continues to operate equipment that results in
exceedances of the Board’s noise regulations.
However,
reductions which can be considered substantial reductions have
occurred due to installation of noise abatement devices and the
discontinued use of some refrigeration units, which are not
needed by the present occupant.
Therefore,
the gravity of the
violation can be considered to be lessened, though continuing.
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Subsequent to the finding of violation by the Board on March
22,
1990, Respondent has exhibited due diligence in attempting to
comply with the requirements of the Act and Board regulations
through installation of noise abatement equipment and monitoring
noise levels.
Again, Respondent has accrued economic benefit of revenues
associated with continued operation of equipment which results in
violations of the Board’s regulations,
as discussed regarding
Section 33(c)(5).
The record does not disclose any previously adjudicated
violations of the Act by Respondent.
CONCLUSION
The Board finds that a penalty of $1000.00
is appropriate in
this instance, based on the duration of the violations and to
serve to deter further violations and otherwise aid in enhancing
voluntary compliance by the Respondent or others similarly
situated.
The $1000.00 violation is also indicated by review of
the Section 42(h)
factors discussed above, the Section 33(c)
factors as discussed above and
in the Board’s March 22,
1990
Opinion, and supported by the
findings of continued violation
indicated in Board Orders to date.
Specifically, the Board’s review indicates substantial
interference with the health and general welfare of Complainant,
and violations of the applicable noise regulations which date
back to 1987 and are continuing..
There is also no evidence that
compliance is either technically impractical or economically
unreasonable.
Therefore, the Board may impose a higher penalty
under the Act.
However,
although the Board may impose a larger
penalty, under the Act, Respondent’s abatement attempts, though
unsuccessful to achieve compliance,
yielded some substantial
reduction in noise levels, causing the gravity of the violations
to be lessened.
These actions further indicate good faith and
due diligence which mitigate against a higher penalty.
By today’s action, the Board renders its Supplemental
Opinion and Final Order and closes this docket.
Any effort to
enforce any Board Orders now flows to the Circuit Court.
This Opinion,
in conjunction with the March 22,
1990
Opinion, constitutes the Board’s findings of fact and conclusions
of law in this matter.
ORDER
1)
a)
Respondent shall pay the sum of $1000.00
within 60 days of the date of this Order.
Such payment shall be by certified check or
money order payable to the Treasurer of the
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State of Illinois, designated to the
Environmental Protection Trust Fund, and
shall be sent by first class mail to:
Illinois Environmental Protection
Agency
Fiscal Services Division
2200 Churchill Road
P.O. Box 19276
Springfield,
IL 62794—9276
b)
Respondent shall also write its Federal
Employer Identification Number or Social
Security Number on the certified check or
money order.
C)
Any such penalty not paid within the time
prescribed shall
incur interest at the rate set
forth in subsection
(a)
of Section 1003 of the
Illinois Income Tax Act,
(Ill.
Rev. Stat.
ch.
120,
¶10—1003);
as now or hereafter amended,
from the
date payment is due until the date payment is
received.
Time for payment stayed during the
pendency of an appeal shall also stay the accrual
of such interest during the period of the stay.
2)
Respondent shall cease and desist for violations of 35
Ill.
Adm. Code 900.102 and 901.102 of the Board’s
regulations.
3)
The docket in this matter is hereby closed.
Section 41 of the Environmental Protection Act,
Ill.
Rev.
Stat.
1989 ch.
111 1/2 par.
1041, provides for appeal of final
Orders of the Board within 35 days.
The Rules of the Supreme
Court of Illinois establish filing requirements.
IT IS SO ORDERED.
I,
Dorothy M.
Gunn,
Clerk of the Illinois Pollution Control
Board,
hereby certify that the above Supplemental Opinion and
Final
Or~3,erwas adopted on the
c~’J1V
day of
_____________________,
1991, by a vote of
_____________
~
~.
z~
Dorothy M. ç?~n,Clerk
Illinois Po~JutionControl Board
119—10