ILLINOIS POLLUTION CONTROL BOARD

March 22, 1990

BRIAN J. PETER,             

)

Complainant,

v.

)

PCB 89—151

(Enforcement)

GENEVA MEAT AND FISH MARKET and

GARY PIKULSKI,

Respondent.

MR. L. LEE PERINGTON APPEARED ON BEHALF OF COMPLAINANT.

INTERIM OPINION AND ORDER OF THE BOARD (by R. C. Flemal):

This matter comes before the Board upon a complaint filed

September 12, 1989 by Brian J. Peter. The complaint alleges that

Respondent, the Geneva Meat and Fish Market and its owner, Gary

Pikulski, are in violation of the Boards prohibition against

noise pollution found at 35 Ill. Adm. Code 900.102 and 901.102.

Hearing was held January 17, 1990 at the Geneva City Hall,

Kane County, Illinois. Respondent did not appear at hearing, nor

has he otherwise participated in this matter in any form.

APPLICABLE REGULATIONS

Title VI of the Illinois Environmental Protection Act

(“Act”), Ill. Rev. Stat. 1987, ch. ll1~, 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.

109—531

—2—

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

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 statutory sections of the ~ct are also implemented via

the numerical emissions standards found at 35 Ill. ~dm. Code

901.102 et see. In pertinent part, Section 901.102 establishes

limits on noise emitted to residential land (Class A land) from

commercial land (Class B land). Limits are expressed as maximum

allowable sound pressure levels, measured in decibels (“dB”).

The decibel scale is such that a 10—unit increase in dB level is

equivalent to an approximate doubling in the perceived loudness

of a sound. Section 901.102 also recognizes that perception of

sound and annoyance related to sound are dependent on both

frequency (pitch) of the sound and the circumstances under which

the sound is heard. As regards the latter, noises are more

readily perceived, and hence potentially more disturbing, during

the sleeping hours. Thus, Section 901.102 establishes different

levels of allowable emissions as a function of sound frequency,

as well as different allowable emissions for daytime (7 AM to 10

PM) and nighttime (10 PM to 7 AM) hours. Numerical limitations

to Class A land from Class B land are as follows:

109—532

—3—

Octave Band     

Allowable Emissions

Center Frequency      

Level (dB)

(Hertz)        

Day

Night

31.5         

35 Ill. Adrn. Code 900.102 establishes a more general

“narrative” prohibition against causing or allowing noise

pollution within the State of Illinois.

BACKGROUND

Mr. Peter resides at 117 North 5th Street, Geneva, Illinois

in a home owned by his mother and grandmother (“Peter

residence”); he has resided at this location for approximately

four years (R. at 7—8). The Board finds that the Peter residence

is located on Class A land, pursuant to 35 Ill. Adin. Code

901.101(a).

The Peter residence is located immediately north of property

occupied by the Geneva Meat and Fish Market, located at 425

Hamilton Street, Geneva, Illinois. The Board finds that the

Geneva Meat and Fish Market property is Class B land, pursuant to

35 Ill. Adni. Code 901.101(b).

The Geneva Meat and Fish Market building was constructed in

1987 (R. at 8). Am9ng the features of the building are

refrigeration units1 located on top of the building and certain

piping facilities located along the wall of the building which

faces the Peter residence. The refrigeration units are located

approximately 30 to 35 feet beyond the property line between the

Peter residence and the Geneva Meat and Fish Market (P.. at 16,

24—5); the Peter residence is approximately 15 feet from the

property line (R. at 16). The refrigeration units are at

1 Although commonly described in the record as “refrigeration

units”, the same objects are also sometimes referred to as “fans”

or “air—conditioning” units. For purposes herein the term

“refrigerations units” is used in the generic sense for the roof-

top units located on the building housing the Geneva Meat and

Fish Market, as depicted in Group Exhibit A.

109—533

—4—

approximately the same height as the upstairs of the Peter

residence, occupied by Genevieve Carison (Id.).

The piping facilities in question consist of four PVC pipes

which exit the rear wall of the Geneva Meat and Fish Market and

connect upward to the refrigeration units (R. at 18).

ALLEGATIONS

Mr. Peter alleges that noises emitted from 

the Geneva Meat

and Fish Market property to the Peter residence property are in

violation of both the nuisance provision of 35 Ill. ~dm. Code

900.102 and the numerical limitations of 35 Ill. Adm. Code

901.102. Mr. Peter further alleges that the source of the noises

are refrigeration units located on top of the Geneva Meat and

Fish Market building and the pi~~ing facilities

located at the

rear of the building.

In support of the allegation of violation of the nuisance

provision Mr. Peter narrated of various experiences, as follows:

Q.

Now, Mr. Peter would you tell the Hearing Officer

when you first started recognizing that there was some sort

of a noise problem emitting from the Geneva Fish and Meat

Market (sic)?

On the 5th of November, 1987.

*****

What is significant

about that date is they were

also loading the meat into the meat locker, basically, in

the meat market, and it was on that date, or the following

day, that they turned on their refrigeration units, and it

is a newly constructed building,

and I was there when they

pretty much lit off the refrigeration

units, and the noise

was quite significant.

(P. at 27)

*****

Q.

Brian, the noise that you are alleging is

emitted from his property, tell the Hearing Officer

what effect that had on your ability to use and enjoy

your property?

A.

Well, from the date they turned the units

on, the first thing you hear in the morning when you

get up is the fans, the noise; and the last thing you

~e~r when you fall as1~ep is t~ noise. (R. at 3O,~

109—534

—5—

*****

Q.

Your testimony is this fan is emitting this

noise from on top of the roof?

A.

Yes.

Q.

The fan is on how many hours a day?

A.

24 hours a day. The refrigeration unit on

top of the building emits a noise.

Q.

What effect does this noise have on your

ability to use and enjoy your property?

A.

I very distinctly remember times getting up

from bed where the noise is so loud that I can’t

sleep. You don’t know what to do. You go into the

living room, you hear it there. You go into the

kitchen, your hear it there.

You wake in the middle of the night, you

hear the noise and you can’t fall back to sleep.

Q.

Could you describe to the Hearing Officer

what the noise sounds like to you?

A.

The noise that emits from the top of the

building sounds like a forced draft fan, they are

used in the boiler rooms of ships. It is a very,

very high pitched, rushing sound.

There is also now during the winter a noise

that seems to emit from these PVC pipes, very, very

low frequency, and it sounds like a train always

passing by in the distance. They come on

intermittently.

So in addition to the sound of the fan 24

hours a day, you have these heat pumps, exhaust from

these PVC pipes that cycle on and off, sometimes four

on at the same time, sometimes one, sometimes two.

And the combination of these sounds make it

very difficult to sleep. Also, we used to enjoy the

backyard of our property. t~e used to like to have

picnics, and the noise from the refrigeration was so

irritating that we stopped having picnics.

On July 2nd, 1988, we were eating outside

and I become so upset that I called the Geneva Police

Department, registered a complaint about the noise.

(P. at 31—33)

109—535

—6—

*****

Q.

Have you received complaints from the tenant

on the second floor, Genevieve Carlson, regarding

this matter?

A.

Yes. The noise affects Genevieve Carison

considerably, because the refrigeration units are on

the same level as her bedroom, and she complains

very, very much about the noise, her ability to

sleep, her ability to enjoy ralaxing in her home.

(P. at 33)

Mr. Peter further presented the testimony of Genevieve

Carl.son.. Ms. Carlson has resided in the upstairs of the Peter

residence, with address 117 1-/2North 5th Street, Geneva since 1948

(R. at 99). Ms. Carlson’s bedroom and dining room are located at

the same height as the refrigeration units (P. at 16). Ms.

Carlson testified to the nature of the noises emitted from the

Geneva Meat and Fish Market as follows:

0.

Now, the noise that comes from that unit,

how does it affect your ability to use and enjoy your

property or your life style?

A.

It comes right in 

——

well, I can’t keep my

bedroom window open. I can’t keep these windows open

because it grinds and grinds and makes so much noise

that you just can’t stand it.

When you put your head on the pillow, it

vibrates when you lay your head on the pillow, it

just vibrates. I got ear plugs. I have got other

stuff to stick in my ears. 

...

I put a pillow over my

head, go out and sleep in the davenport of the living

room, go to the front, and it still roars through

there.

Can’t go out on the sun porch because that’s

got too much windows. The only place I could figure

I could go is jump in the bathroom and pull a cover

over me.

Q.

How long of a time 

——

A.

It just keeps going all the time. In the

daytime, you can’t keep your windows open because it

is roaring all the time. (P. at 100—101)

~**

109—536

—7—

0.

Tell the Hearing Officer how you would

describe the sound that you hear?

A.

It is just a loud roaring sound. It keeps

grinding, grinding, grinding. When it is windy it

gets worse sometimes, especially if its blowing

toward the house. It just keeps on. (P. at 103)

*****

Q.

You hear the sound not only from 10:00

o’clock in the morning to 7:00 o’clock at night, also

from 7:00 o’clock at night until 10:00 o’clock in the

morning?

A.

It never stops. It just keeps going and

going and going. (R. at 105)

In support of his allegations that noise emitted from the

Geneva Meat and Fish Market exceeds the quantitative standards of

35 Ill. Adm. Code 901.102, Mr. Peter presents the results of six

acoustical analyses conducted by Shiner and Associates at the

request of Mr. Peter’. The first analysis (Exh. G) was conducted

during the daytime hours of June 21, 1988; the second through

sixth were conducted within an approximate one—hour span during

the nighttime hours of January 13, 1990 (Exh. H). The analyses

were made in apparent conformity with the requirements of 35 Ill.

Acim.

Code.Part 901.

Among other pertinent information, the June 21 analysis was

made prior to erection of a partial barrier around the

refrigeration units; the January 13 analyses were made subsequent

to erection of the barrier (see following). The January 13

analyses were also made at two different locations on the Peter

property, the first approximately 5 feet within the property at a

location similar to that occupied on June 21 date (“center

location”), and the second at the rear of the Peter property at

approximately the same distance from the property line (R. at 85—

6). Additionally, the January 13 analyses were made when varying

numbers of the “compressors” associated with the PCV pipes were

operating (R. at 89—90). Results of the analyses, with the

standards of Section 901.102 repeated for references, are as

follows:

2 There is reference in the record to yet another acoustical

analysis, conducted as the behest of the City of Geneva (P. at

60; Exh. L). Results of this analysis have not been entered into

the instant record.

109— 537

—8—

Octave Band Center Frequency (Hertz)

31.5

125

250

500 1000 2000 4000 8000

Standards

Daytime

51

45

39

34

32

Nighttime

June 21, 1988 (Day)

Center

64*

65*

68**

56**

54** 5l**

49** 42**

January 13, 1990 (Night)

Center

—

no compressor  

61

57

53

49* 40

36* 32*

30* 29*

Center

—

1 compressor  

65*

57*

50*

41*

39*

33*

34*

32*

Center

—

2 compressors  

59 66* 59* 50* 41*

39* 30  

30* 29*

Rear

—

1 compressor   

52 68* 59* 48* 42* 41* 

37* 32* 29*

Pear

—

2 compressors

50 72** 61* 49* 43* 41* 35* 31* 27*

Level in excess of Section 901.102

nighttime standards

Level in excess of Section 901.102 daytime and nighttime

standards

Mr. Brian L. Homans, the acoustical

engineer who conducted

the three acoustical

analyses, also appeared 

as witness for

Complainant (P. at 72

et seq.). Mr. Homans testified to the

methodology used to conduct the analyses. Mr. Homans

additionally testified, that in his expert opinion, the source of

the noise emissions from the Geneva Meat and Fish Market property

are produced in combination from the refrigeration units, which

principally contribute to excess noise emissions in the high—

frequency bands, and from the PVC piping, which principally

contributes to excess noise emissions in the low—frequency bands

(P. at 89—92).

In addition to the instant action, Mr. Peter attests that he

has pursued various attempts at remedies at the local level,

including several personal discussions with Mr. Pikulski (P. at

28, 29), complaints registered with the Geneva Police Department

(P. at 33, 40), discussions with the Geneva Building Commissioner

and Department of Public Works (P. at 43, 46—7), a request to

appear before the Geneva Zoning Board of Appeals (R~at 43, 46),

and discussion with Mr. Peter’s alderman (P. at 48)~ Mr. Peter

has also pursued the matter with the Illinois Environmental

Protection Agency (R. at 44, 47).

Mr. Peter also has brought the matter before the Kane County

Board of Review for a tax reassessment based in part on

depreciation in the Peter property related to the increase in

ambient noise ~Exh. tJ. T!e ~o~r’~ of P•~je~’iuli f~~or~hlyon

Mr. Pe.er’s request, reducing 

bhe

19S3 as~secsmen~app~1imately

19 ($5,793) (Exh. B—D).

109—538

—9—

These and other actions apparently caused a meeting to be

convened on September 29, 1989, at which various officials

of the

City of Geneva, Mr. Peter, and Mr.

Pikuiski were present (P. 

59—60).

Accordingly to Mr. Peter,

it

was at that time agreed

that a sound barrier was to be erected around the refrigeration

units (R. at 60—1). Mr. Peter further testifies that between

October 10 and approximately October 19, 1989 a wooden barrier

was indeed constructed

in such manner as to partially

enframe

the

refrigeration

units (61—2). However, Mr. Peter

contends that,

although the wooded barrier has caused some reduction in noise

emissions received on his

property, 

it is insufficient

to produce

compliance with the noise pollution regulations,

as attested

by the noise

measurements made on January 13, 

1990 and by the

continued presence of “bothersome” noise audible within

his

residence (P. at 63—5).

Throughout this matter, although well—apprised of the nature

of the instant allegations through service of the Complaint and

notification of hearing, Mr. Pikulski has made no appearance nor

made any defense.

FINDINGS OF VIOLATION

The Board finds that the unrebutted testimony of Mr. Brian

Peter and Ms. Genevieve Carlson clearly establish an unreasonable

interference with their enjoyment of life, and that such

unreasonable interference is caused by noise emissions from the

Geneva Meat and Fish Market, owned by Gary Pikulski. Thereto,

the Board finds the Geneva Meat and Fish Market and Gary Pikuiski

are directly responsible for noise emissions from the Geneva Meat

and Fish Market which cause a frequent, pervasive, and

substantial interference with the enjoyment of life of Brian L.

Peter and Genevieve Carlson. The Board will evaluate the factors

in Section 33(c) of the Act to determine if such interference is

unreasonable.

The Board further finds that acoustical analysis of noise

emissions made on January 13, 1990, as aforementioned, establish

that noise emissions from the Geneva Meat and Fish Market exceed

the noise limitations specified at

35 Ill. Adm. Code 901.102(b)

as these emissions are received on the property occupied by Brian

L. Peter and Genevieve Carlson.

Thereto, the Board finds

that

the Geneva Meat and Fish Market and Gary Pikulski

to be in

violation

of 35 Ill. Adni. Code 901.102(b).

SECTION 33(c) FACTORS

Having found violations

to exist, and prior to making

further orders and determinations,

the Board is charged under

Section 33(c) of the Act (Ill.

Rev. Stat. 1987, ch. 1111/2, par.

109—539

—10—

1033(c)) to take into consideration all the facts and

circumstances bearing on the reasonableness of the emissions.

Such consideration

is to include:

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;

the suitability

or unsuitability

of the pollution

source to the area in hwich 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 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)

The Board considers these factors as follows:

As regards Section 33(c)(l),

the Board finds the injury to

and interference

with the health and general welfare of Mr. Peter

and Ms. Carlson to be substantial.

Deprivation of sleep

constitutes one of the most

serious of injuries short of

trauma.

The instant circumstance

is further aggravated by the

continuous,

24—hour—a—day, nature of the noise pollution,

which

allows for no respite,

and causes the active invasion of the very

home of Complainant and tenant

Carlson 

at all times.

In the absence of the appearance of Respondent, the Board is

without direct evidence which bears on the matter of the social

and economic value of the noise pollution

source pursuant to

Section 33(c)(2).

The Board will nevertheless

accept that, as a

business which has evidently maintained itself

for a period in

excess of two years, the Geneva Meat and Fish Market possesses

social and economic value.

The Peter resiäence demonstrably has priority

of location,

as such bears on Section 33(c)(3).

In the case of tenant

1 fl9—541)

—11—

Carlson, residency predates the noise source by approximnately

years.

Mr. Peter’s personal residency evidently predates the

noise source by approximately

one year (R. at 7—8), with an

uncertain prior period of ownership by the Peter family.

general,

it would appear that the instant circumstance

is an

example of commercial development adjacent to a residential area.

As with the matter of social and economic value of the noise

pollution

source, no evidence has been entered into the immediate

record which bears on the technical practicability

and economic

reasonableness of the reducing or

eliminating the emissions found

at Section 33(c)(4).

However, the Board,

in

its extensive

experience with noise pollution matters, is well aware that it is

technically

practical

to eliminate noise pollution from a wide

variety of stationary sources, including sources such as present

here.

Technically practical

methods may include any or all of

re—engineering equipment to eliminate the source of the offensive

noise, relocating the noise source, imposition of effective

sound—reduction barriers,

and installation

of appropriate

silencers.

The Board addresses the matter of economic

reasonableness

below.

As regards Section 33(c)(5), allegations

of noise pollution

by Mr. Peter, as herein found to exist in fact, have been made

since the initial

operation of the refrigeration

units at the

Geneva Meat and Fish Market in November 1987.

To the extent that

these violations

have been in existence since November 1987,

Geneva Meat and Fish Market and Gary Pikulski have for more than

two years evaded the costs associated

with compliance, and have

therefore accrued economic benefits commensurate with that

absence of expediture.

Notwithstanding

Respondent’s apparent attempts at achieving

compliance through construction

of the aforementioned

plywood

barrier,

there has been no compliance to date.

Hence, the Board

finds that the factor of Section 33(c)(6) of the Act is not

germane to the instant matter.

Based on evaluation

of all the evidence and the factors in

Section 33(c), the Board finds that the noise emissions from the

Geneva Meat and Fish Market unreasonably interfere

with the

enjoyment of life of Brian L. Peter and Genevieve Carlson, and

are therefore

in violation

of 35 Ill. Adm. Code 900.102.

REMEDY

In consideration

of the foregoing,

the Board finds that

several 

actions are required, and these shall be so ordered.

The

actions include:

109—54 1

—12—

Immediate initiation

of a compliance program,

which shall include by dates certain:

identification

of an effective

program;

implementation

of the program; and

demonstrated attainment of compliance.

Cease and desist by Respondent of violations

the Act and of the Board’s rules and

regulations

regarding noise pollution.

3) Apprising of Complainant of all actions taken by

Respondent in response to today’s action.

4) Retaining of jurisdiction

by the Board during the

pendency of the above actions so that the Board

may oversee that 

its Order is carried out.

As regards the matter of the most economic reasonable

compliance method, the Board notes that it cannot determine on

the basis of the facts before it which of the several technically

practicable

strategies

and their many variations

would produce

the most economically reasonable and effective

alternative

for

the

Geneva Meat and Fish Market.

Accordingly,

the Board will

direct Respondent to take what it views as the economic

alternative, with the only proviso that the choice effectuate

compliance.

The Board will today levy no monetary penalty against

Respondent, but reserves the option pursuant to in Section 

42 of

the Act to levy a civil penalty up to $10,000 and an additional

penalty u~to $1,000 for each day during which violation

continues 

should Respondent fail in any measure to promptly,

expeditiously,

and efficaciously

carry out any of the provisions

of the Order today entered.

The Board cautions that it will

tolerate no disregard of today’s Board determinations,

as such

previous disregard may to date be evidenced in Respondent’s

failure to appear before this Board.

This

Opinion constitutes the Board’s findings of 

fact and

conclusions of law in this matter.

The Board notes that P.A. 86—1014 was recently enacted to

incLease the

minir~,umLJ~:c~ultvto 

$10,000 and the maximum penalty

to $5~,000.

This public

ao~.. 

~as an effective

date of July 1,

1990.

i0~342

-13-

ORDER

The Board finds that Geneva Meat and Fish Market and Gary

Pikulski (“Respondent”) have violated 35 Ill. Adm. Code

900.102 and 901.102.

Respondent shall immediately initiate

a compliance program to

ensure that compliance with all applicable Board regulations

shall be attained.

The program shall include:

Identification

of noise abatement alternatives,

including but not limited to installation

of noise

abatement equipment.

A report describing each alternative,

and indicating

which alternative

Respondent

will 

use to abate the noise

and achieve compliance, shall be sent to the Board and

Complainant, Brian J. Peter, not later than April 30,

1990.

The noise abatement alternative

shall be in operation

not later than June 1, 1990.

d) Compliancewith

all applicable Board regulations shall

be demonstrated.

Respondent shall send a report to the

Board and Complainant, Brian J. Peter, showing that

compliance has been demonstrated not later than June 15,

1990.

3. Respondent shall cease

and

desist from violations

of 35 111.

Adm. Code 900.102 and 901.102 of the Board’s regulations

effective upon attainment of compliance, but in no case later

than June 15, 1990.

4. The Board will retain jurisdiction

in this matter pending

receipt of the reports.

Failure to comply with the

provisions of this Order may subject Respondent to civil

penalties.

IT

IS SO ORDERED.

I, Dorothy M. Gunn, Clerk of the Illinois

Pollution Control

Board, hereby certify that the above Interim Opinion and Order

was adopted on the

~~‘~‘/

day of___________________

1990, 

a vote of

7—0

Dorothy MI’ Gunn,

~22

Clerk

Illinois”Pollution Control Board

100—54 ~