ILLINOIS POLLUTION CONTROL BOARD

September

8,

1988

PETER ARENDOVICU AND

PATRICIA A.

LISTERMANN,

)

Complainants,

v.

)

PCB 88—127

KOPPERS COMPANY,

INC.,

Respondent.

ORDER OF THE BOARD

(by J. Anderson):

On September

2,

1988,

the Respondent, Koppers Company,

Inc.

(Respondent)

filed

a motion

to appear,

a motion

to file

a motion

to dismiss instanter,

and

a motion to dismiss.

The first

two

motions are granted.

The Board

reserves ruling on the motion to dismiss while

awaiting a written reply from the Complainants.

The Clerk is

directed

to set this matter

for hearing.

For informational purposes only,

the Board

is also

transmitting with this Order

to both the Complainant and

Respondent prior enforcement decisions involving violations of

Section 9(a)

of the Environmental Protection Act,

as well as

copies of its procedural rules.

The Board emphasizes that it

does not interact with the parties in enforcement proceedings

except

for strictly procedural matters;

its role is to adjudicate

the dispute and reach

a final determination based solely on the

testimony and pleadings presented

in the public recbrd.

Enclosed are the following:

1) Roger Diamond

v. The Center

for the Rehabilitation and Training of the Disabled.

PCB 84—64.

Opinion and Order, February

4,

1988.

(air enforcement);

2)

Citizens of Burbank

v. Overnite Trucking. PCB 84—124.

Interim

Opinion and Order, August

1,

1985; Opinion and Order,

April

21,

1988.

(noise

and

air enforcement)

and

3) General Provisions

(Procedural Rules)

of the Pollution Control Board,

September

1,

1982.

IT

IS SO ORDERED.

92—12

1

---

—2—

I,

Dorothy M.

Gunn, Clerk

of the Illinois Pollution Control

Board, ~reby

certif

that the above Order was adopted on

the

_____

day of

______________,

1988,

by a vote of

7~0

Dorothy M. G~y~n,Clerk

Illinois PoUution Control Board

92—12 2

---

ILLINOIS POLLUTION CONTROL BOARD

February

4,

1988

RODGER DIAMOND,

Complainant,

)

v.

)

PCB 84—64

THE CENTER FOR THE

REHABILITATION AND TRAINING

)

OF THE DISABLED,

Respondent.

MR. RODGER DIAMOND APPEARED PRO SE; AND

MR. PAUL FINNEL APPEARED ON BEHALF OF RESPONDENT

OPINION AND ORDER OF THE BOARD

(by B.

Forcade):

This matter comes before

the Board upon a formal complaint

filed April 26,

1984,

by Rodger Diamond (hereinafter

“Diamond”)

against the Center

for the Rehabilitation and Training of the

Disabled

(hereinafter

“the Center”).

Diamond alleges that buses

which load and unload students

in a driveway located between

Diamond’s property and

a building owned by the Center be estopped

from allowing buses

to utilize the driveway for loading and

unloading.

Hearing was held on December

10, 1986,

at the State

of

Illinois Center, Chicago,

Illinois.

Only the parties and the

Board’s hearing officer were

in attendance.

FACTS

Diamond owns

a multi—story commercial—residential building

located

at 6040 North California Avenue,

Chicago, Illinois.

The

building houses six apartments and two businesses.

The building

is approximately 60 years old

(R.

4).

The Center

is a private,

non—profit, charitable social

service organization.

It owns and leases

a number

of

facilities.

The facility at issue consists of

a two—story

building located

at 6050 North California Avenue, Chicago,

Illinois, which

is known as the Byron Center.

The Byron Center

was constructed

in 1957 and offers a variety of services

for the

disabled,

including both day—students and

residential students.

Diamond’s property and the Byron Center are separated by an

alley which

has an approximate 9—foot width.

Twice

daily,

five

92—123

---

—2—

days

a week,

at approximately 9:00 a.m.

and again at

approximately 2:30 p.m.

(R.

18),

two

to three small buses/vans

(R.

31)

enter

the alley

arid stop adjacent

to an entry/exit which

opens from the Byron Center onto the alley.

There the buses/vans

discharge students during the morning period and

load students

during the afternoon period.

The buses/vans remain

in the alley

for approximately

5

to

10 minutes during

the morning period

arid

for an average of 15 minutes during the afternoon period

(R.

27—

28).

Diamond alleges that the buses/vans,

when stopped

in the

alley with their engines running, produce exhaust which enters

his building through windows and vents on the alley—side of his

building.

DISCUSSION

The burden of proof

in an enforcement action before the

Board

is clearly specified in the Environmental Protection Act

(“Act”),

Ill.

Rev.

Stat.

1985,

ch.

lll~/2, par.

1033(c):

In

hearings before

the Board

under

this Title

the

burden

shall

be

on

the

Agency

or

other

complainant

to show either that the respondent

has caused

or threatened to cause

air

or water

pollution

or

that the

respondent

has violated

or

threatens

to violate

any provision

of

this

Act

or

any

rule or regulation of the Board

or

permit

or term or condition thereof.

The complainant, Mr. Rodger Diamond,

therefore,

has the

burden of showing that the Center has caused

or threatened to

cause air pollution or that the Center has violated or threatens

to violate some provision of the Act or Board rules

or

regulations.

The Board

finds that the Diamond has~failed. to

carry this burden and the Board will accordingly dismiss the

complaint.

The Board

is aware that Diamond

is not an attorney and,

that

for this reason, he might

not be expected

to present a case in as

reasoned a form as would be professional in the field.

Nevertheless,

the Board

finds that the showings which would be

necessary for the Board

to find in Diamond’s favor are absent in

the instant matter.

The Board has

reviewed the testimony at hearing and believes

two concepts are important in discussing that testimony.

First,

the Board

is required

to accept,

as

true,

the uncontroverted

factual

statements offered at hearing.

Second,

the Board is not

required

to accept as true, any conclusory opinions offered as

testimony,

where the underlying rationale and facts supporting

the opinion is lacking.

The great difficulty with the transcript

92—124

---

—3—

in this proceeding

is the paucity of facts to support Diamond’s

position.

The record discloses

a surplus

of unsupported

conclusory opinions.

As an example, Diamond testified that:

They

come

in

with

their

buses.

They

stand

there

10—15

minutes.

And

all

the

garbage

from

their

exhaust

pipes

comes

into

our building, with the vents, with the bedroom

windows.

We got children sleeping there.

We

have

people

sleeping

there when

they come

in

with their buses.

(R.

5)

From this uncontroverted factual statement, the Board can

determine that for 10—15 minutes some exhaust fumes from the

buses enter

the Diamond’s building through vents and windows at

a

time when children and adults are sleeping somewhere within the

apartment building.

It

is not clear which vents

or windows

provide the pathway

to the fumes

in the alley.

The location of

the sleeping adults and children in relation to the portions of

the building that experience fume problems

is also unclear, as

is

the level

of interference.

However,

the above factual statements must be distinguished

from the large quantity of conclusory opinions offered as

testimony:

So,

wriat point

does he

make

that

these

children have

to

be

in?

Why does he

have

to

kill

us?

We’re

next

door.

He’s

killing

us

normal people

to save retarded people.

I believe

in saving retarded people.

But

I don’t believe

in making money to kill normal

people in the process.

You see my point?

Why

kill

people,

normal

people

in

the process

of

trying to save retarded people?

I’m willing

to

save

retarded people

and

do

everything

for

them,

you

know.

But don’t

kill

me

in

the

process.

That’s

all

I’m

saying.

(R.

13)

The Board cannot conclude that the exhaust fumes present

a danger

of imminent mortality to the individuals in Diamond’s building

without some factual foundation for that conclusion.

Diamond has

presented no credentials

to demonstrate his skill

in the health

effects

of internal combustion engine exhaust fumes and has

presented no rational theoretical basis

for the conclusion of

mortality.

Additionally,

the few facts presented indicate,

at

most,

a short—term exposure of an unquantified number of people

to some unquantified amount of

fumes.

This limited exposure does

not support Diamond’s bald assertions

and opinions regarding the

degree of

interference.

92—125

---

—4—

Despite the repeated statements

about “killing”

(R.

13,

16),

the Board cannot conclude, based on this record,

that mortality

is

a reasonably anticipated consequence

of the brief exposure to

exhaust fumes.

When stripped of its emotional content, the Board finds

the

following facts:

for 5—10 minutes

in the morning and 10—15

minutes

in the afternoon,

small buses park adjacent to Diamond’s

property.

While they are parked there,

the exhaust pipes from

the buses

are approximately 12 inches from Diamond’s building.

While

they are parked there,

certain exhaust fumes from the buses

enter Diamond’s building through vents and windows.

During

the

period the buses are parked, the fumes preclude Diamond from

using the bathroom

CR.

6,

16).

During

the period the buses are

present,

the fumes cause some unquantified level of

interference

with Diamond’s use of the building.

Thus,

the Board concludes that for

a total

of 15—30 minutes

a day, Monday through Friday, exhaust fumes preclude Diamond from

using

the bathroom and cause some unquantified level of

interference with other uses

of the building.

The standard for finding

a violation of Section 9(a)

of the

Environmental Protection Act (“Act”) as

a general nuisance claim

is whether

the activity

in question causes an unreasonable

interference with the enjoyment of

life.

Prior

to reaching that

conclusion, the Board must consider the factors

in Section 33(c)

of the Act:

In

making

its

orders

and

determinations,

the

Board

shall

take

into

consideration

all

the

facts

and

circumstances

bearing

upon

the

reasonableness

of

the

emissions,

discharges,

or

deposits

involved

including,

but

not

limited to:

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

in-

volved;

and

4.

the technical practicability and economic

reasonableness of reducing or eliminating

92—126

---

—5—

the

emissions,

discharges

or

deposits

resulting

from such pollution source.

There

is substantial testimony in the record regarding the

social

and economic value of the pollution source.

The

representative of the respondent testified on the following

description of the center:

The Center

for the Rehabilitation and the

Training

of

the

Disabled

is

a

private,

non-

profit,

charitable

social

service

organization.

The

Center

provides

rehabilitative

services

to

individuals

with

disabling

conditions.

We

have

been

doing

this

since

1919 and

at this particular

site since 1957.

At

the

site

in

question,

we

provide

services

to

a

variety

of

disabilities.

The

building

was

constructed

in

1957

as

a

school

for

retarded

children.

And

indeed

we

still

are serving children with disabling conditions

as well

as adults with disabling conditions.

The

children

who

are

being

served

are

children

who

have

been

excluded

from

the

Chicago

public

schools.

And

they

have

been

excluded

because

of

the

fact

that

they

are

behaviorally

disordered,

meaning

they

are

prone

to

outbursts,

uncontrollable

behavior,

running

away,

doing

things that perhaps

could

not

be

predicted

or

dealt

with

in

a

normal

fashion.

We

provide

specialized

training

and

specialized

staff

for

them

so

that

they

can

learn

to

control

their

behaviors

and

perhaps

someday

be

readmitted

to

the

public

school

system and maintstreamed into society.

The Center,

as

it was stated,

has been at

the

location

since

1957.

When

the building

was

constructed,

it

was

constructed

with

a

side

drive

at

the

south

end

of

the property

which abuts

the property that the Complainant

represents

or owns.

The

school was

constructed

in such

a way

as

to

allow

loading

and

unloading

at

that

south end

of the building so

as

to provide for

a

sheltered

and

protected

way

for

these

9

2—127

---

—6—

disabled

children

to get

into and

out

of

the

buses on

a daily basis.

(R. 9—11)

There was also testimony from respondent’s representative on why

use of the side drive was necessary.

The

behaviorally

disordered

children,

however,

do

not

have

any mobility

problems.

Perhaps

their

mobility

problems

might

be

in

the

other

direction,

in

that

they’re

too

mobile.

And

they

have

a

tendency

to

run

outdoors,

take off,

act uncontrollably perhaps

at

times.

So,

they

are

loaded

and

unloaded

using the side drive.

*

*

*

*

There

is

a reason

for

our using

the side

drive.

Our

reason

is

that,

as

I

stated,

the

children

who

are

loaded

using

the

side

drive

are

the

children

who

have

in

the

past

exhibited

and

continue

to

exhibit

behavioral

problems,

outbursts

and

are

difficult

to

control.

Our

experience

in loading

these

children

out on the street or

in the alley

is that they

can

tend

to

run

away,

run

out

into

traffic.

And

we

feel

that

from

a

safety

standpoint

we’re

better

off

using

that

side

drive

for

loading

and

unloading.

That’s

what

the

side

drive was designed for.

(R.

23, 31—32)

Consequently, based on this factual testimony,

the Board finds

there

is great social value

to the Center’s activities

in general

and

to the use of the side drive for

loading the behaviorly

disordered children

in particular.

In sum,

the Board finds

that for the very brief periods of

time involved and the minimal

factually proven interference

to

Diamond’s use of property does not outweigh the social value of

the Center’s use of the side drive.

Consequently, the Board

finds that Diamond has failed

to prove

a violation of Section

9(a)

of the Act and this matter

is dismissed.

This Opinion constitute the Board finds of

fact and

conclusions

of law

in this matter.

ORDER

1.

There is

insufficient evidence in the record

to show that

respondent, The Center

for the Rehabilitation and Training

of

9 2—128

---

—7—

the Disabled, has violated the Environmental Protection Act

or

rules

and regulations

of the Illinois Pollution Control

Board.

2.

This proceeding is hereby dismissed.

IT IS SO ORDERED.

Board Members 3D. Dumelle,

3. Anderson and

3.

Marlin

dissented.

I,

Dorothy M. Gum, Clerk of the Illinois Pollution Control

Board, hereby cer

i

that the~boveOpinion and Order was

adopted on the

_____

day of

______________,

1988, by a vote

of

___________.

Illi

Control Board

92—129

---

ILLINOIS POLLUTION CONTROL BOARD

August

1,

1985

CITIZENS OF BURBANK,

Complainants,

v.

)

PCB 84—124

OVERNITE TRUCKING,

)

Respondents.

MRS.

CAROL HARDING, APPEARED PRO SE,

ON BEHALF OF COMPLAINANTS;

AND

MR.

JOHN WOOD FAIN, GENERAL COUNSEL, APPEARED FOR RESPONDENTS.

INTERIM OPINION AND ORDER OF THE BOARD

(by B.

Forcade):

On August

13,

1984, Citizens of Burbank

(“Citizens”)1 filed

a complaint with the Board charging Overnite Trucking with

violations of

Sections 23 and

24

of the Environmental Protection

Act (“Act”),

respecting Noise Pollution and Sections 8 and

9 of

the Act, respecting Air Pollution.

Hearing was held December

13,

1984.

Both parties waived final briefs.

On May

20,

1985,

complainants filed

a letter containing

information pertaining

to the subject matter

of

this case.

This

information

is not

a statement under oath and has not been

subject to cross—examination.

Consequently,

the Board has not

considered this information

in its deliberations.

The

requirements of

sworn testimony and the opportunity

for cross—

examination are

for

the protection of both parties

in

a contested

case proceeding such as

this one.

Since

the May 20 letter meets

neither

requirement,

the Board,

on its own motion, must strike

the letter.

The facility in question, Overnite Transportation Company

(“Overnite”),

is located between West 75thStreet

and West 77th

Street

at approximately South Natoma Avenue.

The property

is

approximately

600

feet wide

in

an east—west direction and 1300

feet long

in

a north—south

direction.

There are two predominant

structures on

the property:

a centrally located terminal

~

“Citizens”

consists of residents from five

(5)

locations near

Overnite

including:

Mr.

& Mrs.

James Harding,

Mr.

& Mrs. Vincent

Bavirsch, Mr.

&

Mrs.

Ken Myslik,

Mr.

& Mrs. Edward Myslek and

Mr.

& Mrs.

Frank

Lojas.

As the complainants were identified by

signature

only,

the Board apologizes

for

any misspelling

of

names.

65-131

92—130

---

—2—

building

(approximately 550 feet by 100 feet)

and

a smaller

shop

or maintenance building

(approximately 80 feet by 100 feet)

at

the southern end

of

the property (Resp.

Ex.

1).

Overnite’s operations

involve

the collection and

distribution of freight

in the Chicago area, as well as

the

transfer

of

freight from Overnite’s terminal

to terminals

in

other locations

in

the United States.

Four types

of activities

are of concern here:

(1)

trucks entering

or leaving the Overnite

facility destined

for customers or

other terminals;

(2)

tractors

and trailers being moved from one location on Overnite’s property

to another;

(3) miscellaneous trucking activities including

tractor—trailer

repair,

fueling and startup;

and

(4)

the public

address

system.

Overnite’s operations,

as

is standard

in

the

industry, depend on

the pick—up and delivery schedules

established by its customers.

Consequently, very little activity

occurs

in the terminal or “yard” during the day time.

Most

activity

is

from six o’clock

in the evening

until six

o’clock the

next morning

(R.

89—97).

While Overnite has occupied

the

location since May of

1984,

the location has been occupied

by

other

trucking companies

for many years preceding Overnite’s

acquisition of

the property.

The complainants

in

this proceeding

are residents from the

area south of Overnite’s

facility.

Testimony was provided at

hearing

by Mrs.

Alice Bavirsch, who lives 7717 South Natoma,

on

the east side of the Street,

approximately 125 feet south of

Overnite’s southern fence, line;

Mr.

Frank Lojas who resides at

7702 South Nashville,

which would appear

to be

less than 100 feet

from Overnite’s southern fence line;

and

from Mrs.

Carol Harding

who resides at 7701 South Natorna, directly south of the

maintenance building,

which would

appear

from the testimony to

be

less than

50 feet from Overnite’s southern fence

line.

In

addition,

two letters from other

local

residents similarly

situated were admitted

into evidence

(Pet.

Exs.

2, 3).

The complainants

in

this proceeding a1lege~that Overriite’s

operations violate statutory provisions respecting noise and air

pollution.

The two aspects will

be evaluated separately.

NOISE

Title VI

of

the Act provides

the procedures and standards

for noise control.

Sections 23 and

24

of

that Title

provide:

TITLE VI:

NOISE

Section 23

The General Assembly finds

that excessive

noise

endangers physical and emotional health

and well—being,

interferes with legitimate

business and recreational activities,

65-132

92—13 1

---

—3—

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.

The Board

has implemented

these statutory sections

in two

ways.

First,

the Board has adopted specific numerical

limitations on the characteristics of sound

that may be

transmitted

from source

to receiver.

As no numerical

test data

were presented

in this matter,

those portions

of the regulations

are not at

issue.

The second method of implementing

the noise

provisions of the Act are

found

in 35

Ill. Adm. Code Sections

900.101 and 900.102.

Section 900.101

Definitions

*

*

*

Noise pollution:

the emission of

sound that

unreasonably interferes with the enjoyment of

life or with any lawful business or activity.

*

*

*

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.

In effect,

these two sections adopt a regulatory public nuisance

provision for

noise control using the statutory phrase

“unreasonable interference with

the enjoyment of life or with any

lawful business or activity”

as the standard.

The pleadings,

testimony and exhibits of

the complainants, regarding noise,

are

founded

in this public nuisance theory.

65-133

92—132

---

—4--

The judicial

interpretation of Sections 900.101 and 900.102

which

is most closely related

to the facts of this case

is

Ferndale Heights Utilities Company

v.

Illinois Pollution Control

Board and Illinois Environmental Protection Agency,

44

Ill. App.

3d 962,

358 N.E.2d

1224

(First District, 1976)

,

(hereinafter

“Ferndale”).

In that case, which

involved the exact statu~ory

and regulatory language at issue

in the instant proceeding

,

the

Board

found

that Ferndale Heights Utilities Company had violated

the regulatory public nuisance standard in their operation of a

pumping station.

On appeal,

the Utility Company argued that the

regulatory language of Section 900.102 was unconstitutional

in

that

it did not contain sufficient standards for determining what

constitutes “noise pollution” and argued that the narrative

testimony at hearing lacked sufficient specificity

to sustain

a

finding of violation of noise pollution.

The Ferndale Court

found

the regulatory language,

when viewed

in the entire

statutory framework,

including the factors listed

in Section

33(c)

of

the Act, was sufficiently specific to pass

Constitutional muster.

In evaluating

the adequacy and

specificity of

the citizen testimony,

the court stated:

Ferndale next asserts that the Board’s

order

should

be reversed because its finding

of

a violation of Rule 102

is contrary to the

manifest weight of the evidence.

Specifically, Ferndale argues that the Pierson

testimony failed

to provide dates and times of

noises,

failed

to show any disturbance

in his

house,

failed

to show physical damage to

himself or any person or property, failed

to

show that he never lounged

or entertained

guests

in his yard and

failed to show when and

how often

he did not lounge or entertain

guests

in his yard.

Other

alleged testimonial

deficiencies involve

failure

to cite dates and

times when activities such as patio parties

were prevented or when the various witness’

sleep was interrupted.However, agency

witnesses used

such terms as

“almost constant

this summer”, “five times

this past summer”

and

“awakened once or twice

this year”

to

describe generally how often they were

disturbed by the noise emanating from the

pumping station.

Terms such as

“a great

source of

irritation,” disturbing”,

“like

ten

air conditioners running

at the same time”

and

Prior

to Codification

in

the Illinois Administrative Code,

Section 900.101,

“Noise Pollution” was found at Illinois

Pollution Control Board, Rules

and Regulations, Chapter

8, Rule

101(j).

Section 900.102 was Rule

102 of that same Chapter.

The

actual

regulatory language was not modified.

65-134

92—133

---

—5—

“like)

a lawnmower

running all day under my

window” were used

to describe the effect

of

this sound upon the individuals.

Based upon such testimony the Board

properly found

that the character

and degree

of

interference with the enjoyment of life and

lawful activity occasioned

by sounds emanating

from Ferndale’s pumping operations to be

“unreasonable.”

Our review of the record does

not mandate a contrary conclusion.

(Id.)

These statutory,

regulatory and judicial standards provide

the guidance by which

the Board must evaluate the record in this

proceeding.

At hearing,

Mrs.

Alice Bavirsch testified:

“But

the smell

is bad and the noise

is

bad.

There

is

no doubt about

it

(R.

13).

*

*

*

Q.

When

is

the

noise

the heaviest,

what time of day?

A.

“Well,

if you don’t get

to bed

by

9:00 o’clock,

you’ are up all night fighting

it.

And,

of course, the

smell seeps

right

through,

right into the bedroom area,

and we

are used to

it now.”

(R.

14)

*

*

*

Q.

Okay.

Is there anything that you

want

to say about that maintenance building

at

Overnight?

A.

“They are noisy.

You could hear

the banging

of whatever they are doing.

I

don’t know what they are doing.

But you could

hear it

all

the

time.

And

I guess they must

have

a weighing

station,

the way

I look at

it.

The trucks go right

in there and they

stop and

then they go around

and they keep

going around and around,

and

it is noisy.”

(R.

15)

Mr.

Lojas provided

the best testimonial description of

the

frequency of the problem:

Q.

Could

you estimate

the frequency

that you have,

the kinds of problems that you

have been talking about, on

a weekly or

a

65-135

92—134

---

—6—

monthly basis with Overnite?

Are you talking

about once

a week you get waked up,

or once

a

month,

or what?

A.

“During the summertime, when our

windows are open,

usually during

the night we

are woken

up.

One example

is we were told there

was going

to be

no repair

at the facilities.

Yet we found

a few times that people were

pounding late at night which woke us up,

and

the

fellows were pounding out trailers.

They

had some damage

to the trailers.

They had

ladders on there, and they were pounding them

out.”

Q.

How often did that kind of thing

happen?

A.

“That happened about three

or

four

times.

We were awakened by P.A. systems,

where people were talking over

the P.A.

system.

In

fact, one of my neighbors next to

me,

the home south of me, complained

that he

even got up one night and walked out into the

back alley area and hollered

at the terminal,

telling them to shut up because his kids were

being woken

up.”

Q.

On

a monthly basis during

the

summer,

how many times do you think that you

were disturbed yourself, or your family?

A.

“I would say about two—thirds

to

three—fourths of

the

time.”

Q.

So does that mean 20 times a month?

A.

“Yes.”

(R.

36—37)

This testimony meets the Ferndale standard of providing

a

description of

the noise, explaining

the type and severity of

interference caused by the noise

(sleep interruption)

and

providing information on the frequency and duration of

the

interference.

This type of

testimony must be provided

in any

proceeding

for the Board

to make

a finding

regarding interference

with the enjoyment of

life.

Mrs.

Carol Harding testified:

THE WITNESS:

“Okay.

My name is Carol

Harding.

My address

is 7701 South Natoma.

I

am the last house

on the

street there, and

I

65-136

92—135

---

—7—

am dead center with

the maintenance building

of Overnite.

My bedroom windows and my kitchen

windows face the north,

and

I don’t appreciate

being

kept up nightly because of heavy truck

movement going on

in that maintenance area.”

*

*

*

To me,

that

is

a lot of heavy

polluted air that you are putting

into my

lungs, which

I don’t appreciate, and

a lot of

heavy noise.

My house vibrates.

I have

to

keep my TV on high

if

I want to sit down and

try and enjoy watching my TV.”

CR.

50—51)

To support the testimony, Complainants introduced

Pet.

Gr.

Ex.

5

which includes

a listing

of

the dates and times that Mrs. Harding

recorded

“very unnecessarily loud noises”

or odor problems from

Overnite

(R.

59).

That exhibit contains

21 listings

for June of

1984.

In addition to testimony from local

residents,

complainants

provided testimony by Mr. Winfield Ferry,

an enforcement officer

from

the Cook County Department of Environmental Control.

While

Mr.

Ferry did not take noise level readings, he did express an

opinion on the noise levels.

Q.

Did you take any decibel

readings

at any point when you conducted this

investigation?

A.

“Let me read

——“

Q.

Did you take any yourself?

Dfd

you use

a meter

in

the

field

to take any?

I

am not asking whether

they violated the

ordinance or not.

A.

“It was not necessary to take a

reading

at this time because

I can tell from

my experience,

and

I have been an

inspector

for

a while,

that the noise

is sufficient to

warrant corrective action.”

(R.

76)

Overnite made

no attempt to dispute or

impeach

the

complainants’

testimony on the severity or

frequency of the noise

problem.

In discussing

the

issue, Counsel for Overnite tacitly

admitted

the problem:

MR.

FAIN:

“This

is correct.

We are

not saying this is going to alleviate your

65-137

92—136

---

—8—

problem;

and

it will never alleviate

the

problem.

That

is part of

the problem with

living next door

to

a property that is zoned

industrial and has a truck line sitting

there.

But we think these measures will

appreciably help.”

(R.

125—126)

Based on the above—cited evidence,

the Board finds

that

noises emanating from Overnite’s facility, specifically from

vehicle movement, maintenance, horns

and

the public address

system,

are causing interference with the sleep and normal

leisure time activities

of adjacent residents.

Further,

the

Board

finds this interference

is frequent and severe.

ODOR

The Environmental Protection Act,

Board regulations

and

judicial

interpretations

adopt

a similar approach

to controlling

odor problems.

The Act defines and prohibits unreasonable

interference with

the enjoyment of life

or property from odors.

Section

3

b.

“AIR POLLUTION”

is

the presence

in the

atmosphere of one or more contaminants

in

sufficient quantities and

of such

characteristics and duration as

to be

injurious to human, plant,

or animal

life,

to health,

or

to property,

or

to

unreasonably interfere’ with

the enjoyment

of life or property.

Section 9

No person shall:

a.

Cause

or

threaten or allow the discharge

or emission of any contaminant into the

environment

in any State

so as

to cause

or tend

to cause

air pollution in

Illinois, either alone or

in combination

with contaminants from other

sources,

or

so as

to violate regulations or standards

adopted by the Board

under

this Act;

Board regulations

at 35

Ill. Adm. code Sections 201.102, “Air

Pollution” and 201.141 “Prohibition of Air Pollution” contain

identical language

to the Act.

Similar judicial interpretations

apply to the “unreasonable interference” odor pollution cases.

See:

Incinerator, Inc.

v.

Pollution Control Board,

59

I1l.2d

290, 319 N.E.2d 794

(1974);

Mystic

Tape,

Div.

of Borden,

Inc.

v.

Pollution Control Board,

60

Ill.2d

330;

328 N.E.2d

5

(1975);

Processing

& Books

v.

Pollution Control Board,

64 Ill.2d 68,

351

N.E.2d 865

(1976).

65-138

92—137

---

—9—

The hearing

testimony on odor

is similar

in character

to the

testimony on noise:

“Well,

if you don’t get

to bed by

9:00 o’clock,

you are up all night fighting

the

noise

.

And, of course,

the smell seeps

right

through,

right

into

the

bedroom

area,

and

we

are

used

to

it

now.

Q.

Okay.

What

type

of

relief

are

you

trying

to

seek

here

today?

A.

Well,

if

they

would

limit

their

operations

to

daytime hours and,

I

don’t

know,

sometimes

when

they

start up those trucks

the

smog

is

so

thick

you

could

choke.

I

used

to

walk

my

dog

there

every

morning,

and

it

was

just

overpowering.

You

could hardly breathe.

And that just drifts

all the way across

to my yard,

and

I am 150

feet away.”

(R.

14)

*

*

*

“Usually, you park cabs over

there,

usually three

to six cabs.

They have a

tendency to start

up

in the morning, and when

they do start up and the wind is out of the

north,

we get

a foul smell

and

taste into our

kitchen area,

and this happens many times

around breakfast time.”

(R.

32)

*

*

*

“When you figure you have trucks.

lining

up, getting

ready to fuel, we get all

the smell.

This

is all

coming towards us.

If you get

inversions it keeps

it

down

on

the

ground,

and

we

are

finding

that

it

does

bother

us.

It

affects

our

sleep,

it

affects

our

way

that

we

operate

during

the

day, because we could not relax during the

night and get our proper sleep,

or even during

the days

it affects your thinking

because

it

cuts down the air, oxygen that you are taking

in.”

(R.

34)

*

*

*

“From,

I would

say,

five o’clock at

night, you will have up to 15 trucks waiting

to

fill

up

in this pumping

area;

up to 15

trucks,

I counted.

65-139

92—138

---

—10—

To

me,

that

is

a

lot

of

heavy

polluted

air

that

you

are

putting

into

my

lungs,

which

I

don’t

appreciate,

and

a

lot

of

heavy

noise.”

(R. 50—51)

In addition,

Pet.

Gr.

Ex.

5 contains references from Mrs.

Harding

to “excessive odors of truck

fumes” and “heavy odors”

during June of 1984.

‘

Additionally, Pet.

Ex.

1

(A through EE)

contains photographs which show smoke surrounding

truck tractors

on Overnite’s property.

While

the photographs certainly cannot

demonstrate

odor,

they

support

the

conclusion

that

Overnite

is

the

source

for

the

odor.

Again,

Overnite made no attempt to dispute or

impeach the

complainants’

evidence

on

severity

or

frequency

of

the

odor

problem.

Based

on the

above—cited evidence,

the Board

finds that

odors from Overnite’s facility, specifically truck operation,

start—up and fueling,

are causing

interference with the sleep,

food consumption and normal

leisure time activities of adjacent

residents.

Further,

the Board finds this interference

is

frequent and severe.

Section 33(c)

The Board may find severe and frequent interference with the

enjoyment of life solely based

on testimony describing

the

impacts of noise or

odor.

However,

to evaluate whether those

noise or odor

impacts are “unreasonable,”

the Board must evaluate

a series of factors listed

in Section 33(c)

of the Act:

Section

33

*

*

*

c.

In making

its orders

and determinations,

the Board

shall

take

into consideration

all

the facts

and circumstances bearing

upon

the reasonableness of the emissions,

discharges,

or deposits involved

including,

but not limited

to:

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

65-140

92—139

---

—11—

question of priority

of location

in

the area involved;

and

4.

the

technical

practicability

and

economic reasonableness of reducing

or

eliminating

the

emissions,

discharges or deposits resulting

from such pollution source.

The “unreasonableness” of the noise or odor pollution must be

determined

in reference to these statutory criteria.

Wells

Manufacturing Company v. Pollution Control Board,

73 Ill.2d 226,

383 N.E.2d

148

(1978);

Mystic Tape,

supra;

Incinerator,

supra,

City of Monmouth

v. Pollution Control Board,

57 Ill.2d 482,

313

N.E.2d 161

(1974).

However, complainants are not required to

introduce evidence on these points.

Processing

& Books, supra.

In evaluating

the first

of the Section 33(c)

factors,

the

Board

finds

there

is

a

frequent

and

severe

interference

with

sleep,

food consumption and normal leisure activities of

adjacent

residents caused by noise

and odor from Overnite’s facility.

This interference goes

far beyond trifling

interference, petty

annoyance or minor discomfort.

The noise

and odors constitute

a

substantial

interference with the enjoyment of life and property.

Concerning

the second of

the Section 33(c)

factors,

the

Board

finds that Overnite

is of substantial

social

and economic

benefit

in that

it provides valuable services

in the local

and

national movement of

freight

(R. 90—93)

and employs many people

(R.

109).

However, the social

and economic benefit is

significantly reduced by the nature of noise

and odor emissions

from the property.

The third Section 33(c)

factor concerns suitability of

the

pollution source

to the

area in which

it

is located and priority

of location.

The record contains very little descrjptive

information

on

the

area

beyond

complainants’

and defendant~s

property.

It is clear

that complainants’ property

is

in the City

of Burbank, while defendant’s property is “across the street”

in

the Village of Bedford Park

(R.

8,

49).

While the property which

Overnite’s facility occupies was originally, zoned

for residential

use

R4 by Bedford Park,

that zoning use was changed and

the

facility is

in compliance with current Bedford Park zoning uses

(R.

18, 32—33,

38).

The Board

finds

that Overnite’s facility

is

suitable

for

the area

in which it

is located

if noise

and odor

problems can be reduced

to acceptable

levels.

On the priority of location issue,

the Board

finds that

complainants have

the clear

priority.

The record

is undisputed

that local

area residents generally,

and several complainants

in

particular,

lived

in the area

in

1967 when the facility in

question was undeveloped and

uninhabited prairie land

(R. 32).

92—140

65-141

---

—12—

Concerning

the last

of

the Section 33(c)

factors,

the

Board

finds that there

are technically feasible and economically

reasonable methods of making some reductions

in noise

and odor

levels,

that Overnite has begun

to implement some of these

measures, but that the record

is insufficient

to support

a

detailed Order commanding what specific steps must be taken, by

what

certain

time,

and

what

steps will be necessary

to completely

cure

the

problems.

Additionally,

the Board

finds that

to curtail all nighttime

activities would amount to an Order

for Overnite

to cease

operation and go out of business (R.

98).

However,

lack

of

a

technologically feasible method of

reducing the pollution

is not

an absolute defense

to a finding

of violation by this Board.

Wells supra, Chicago Magnesium Casting Co.

v.

Pollution Control

Board,

22

Ill.App.3d

489,

317

N.E.2d

689.

The Board believes

that

the report required

in today’s Order will provide

information on specific workable methods of

reducing

the noise

and odor problems

to acceptable levels without facing the

difficult closure

issue.

Based

on

the Board findings of substantial

interference with

the enjoyment of life and after consideration of the factors

listed

in Section 33(c),

the Board

finds that noise emissions

from Overnite’s

facility are unreasonable and constitute

a

violation of

35

Ill. Adm. Code 900.102 and Section

24

of the

Environmental Protection Act.

Based on the Board findings of

substantial

interferencewith enjoyment of life and after

consideration of the factors listed

in Section 33(c),

the Board

finds

the odor emissions from Overnite’s facility are

unreasonable and constitute

a violation of

35

Ill. Adm.

Code

201.141 and Section 9 of

the Environmental Protection Act.

Additional Information

Throughout

this

proceeding,

steps

were

mentioned

which

would

have

the

effect

of

reducing

the

noise

and

odor emissions from

Overnite’s facility.

These

include:

1.

Operational

changes,

such

as

rerouting

on—site

truck

movement

patterns;

2.

Moving

the

electric

hot lines from the south end of

the

terminal

to

decrease

truck

start—up

at

that

location;

3.

Building

an acoustical barrier along

the

southern

perimeter;

and

4.

Enclosing the maintenance building fuel

bay area.

While these options were discussed favorably at hearing, certain

informational deficiencies exist.

For example, prior

truck

traffic patterns were not compared

to future traffic patterns,

plans

for

the

acoustical barrier were produced and discussed at

65-142

92—14 1

---

—13—

hearing but not introduced

as evidence, discussions

of

fuel bay

enclosure were very general

in nature, and most importantly,

no

attempt was made

to quantify the reduction

in noise

and odor that

would

be accomplished by implementing these

steps.

Additionally, the Board

is concerned

that moving certain

operations

may

only

shift

the

impact

to

persons not present in

this

proceeding.

Therefore,

the

Board

will

order

Overnite

to

prepare a report evaluating,

to the maximum extent possible,

the

type and degree of noise and odor reductions possible by changes

in operation or construction of noise and odor reduction

devices.

This report should

be prepared by

a competent

individual or

firm,

and should evaluate all methods of control

(not just those already discussed).

Each control option should

include anticipated pollution reductions, cost of implementation

and

an estimate of

a reasonable time for

implementation.

The Board will retain jurisdiction

in this case pending

receipt

of the report, and final disposition of this matter.

The

report is

to be filed with the Board

and complainants’

representative, Mrs.

Carol Harding, not later

than November

1,

1985.

Unless

a motion requesting

a hearing on the contents of

the report

is received by November

30,

1985,

the Board will

proceed

to issue a final Order regarding compliance as soon as

possible thereafter.

This Interim Opinion constitutes the Board’s initial

findings of fact and conclusions of law in this matter.

ORDER

1.

The Board

finds that Overnite Trucking has violated

35

Ill.

Adm. Code Sections 900.102 and 201.141, as well

as Sections

24 and

9 of the Environmental Protection Act.

2.

Overnite

is Ordered

to submit

to

the Board

and •complainants,

not later

than November

1,

1985,

a report on methods of

reducing or eliminating noise

and odor pollution at

its

facility consistent with the Opinion.

3.

The

Board

will

.retain

jurisdiction

in

this

matter

pending

receipt

of

the

report.

Unless a motion for hearing on the

contents of that report

is received by November

30, 1985,

the

Board will proceed

to issue

a final Order

in this matter.

IT

IS SO ORDERED

65-143

92—142

---

—14—

I,

Dorothy

M.

Gum,

Clerk

of

the

Illinois

Pollution

Control

Board,

hereby

certify

that

the

above Interim Opinion and Order

was

adopted

on

the

/44_

day of

~

,

1985,

by

a

vote

of

7’o

Dorot~’~~unn,C

lerk

Illinois Pollution Control Board

65-144

92—143

---

ILLINOIS POLLUTION CONTROL BOARD

April

21,

1988

CITIZENS

OF

BURBANK,

Complainants,

)

V.

)

PCB 84—124

OVERNITE TRANSPORTATION COMPANY,

)

Respondent.

OPINION AND

ORDER

OF THE BOARD

(by B.

Forcade):

On

August

1,

1985,

the

Board

entered

an

Interim

Opinion

and

Order

in

this

matter

which

found

that Overnite Transportation

Company

(“Overriite”)

had

violated

35

Ill.

Adm.

Code

900.102

and

201.141,

as

well

as

Sections

9

and

24

of

the

Illinois Environ-

mental Protection Act

(“Act”).

That Opinion and Order

found

unreasonable noise emissions and unreasonable odor emissions from

Overnite’s

facility

and

found

that

those

emissions

constituted

a

substantial

interference

with

enjoyment

of life for

complianants.

After

making

this

finding

of

a

noise

and

odor

public

nuisance

violation,

the

Board retained jurisdiction and

ordered

Overnite

to

prepare

and

submit

a report on the methods,

cost

and

timing

of

pollution

reduction

options.

Overnite filed

reports compiled by a contracted engineering firm, ETA, Inc., on

June

16,

1986,

arid

July

3,

1986.

Citizens of Burbank

(“Citizens”)

filed collective comments regarding the report on

July

28,

1986.

On January

7,

1987, Overnite filed

a response to

the complainants’ comments.

By its January

8,

1987 Interim Order, this Board mandated

that Overnite undertake certain actions

to reduce

its noise

emissions

to below complaint levels and its odOr emissions to

eliminate their nuisance.

This order required Overnite

to

construct

a 12-foot high wall along

its southern and portions of

its eastern or western boundaries and to reduce the engine

RPM

of

its yard tractor

fo,r noise reduction.

It left certain details of

the wall construction to Overnite’s discretion.

The order

required Overnite to reduce its odor emissions by reducing the

number

of trucks sitting at idle within its facility.

Overnite

was

to permit only one truck at any time to await refueling, and

it was

to assure that

its drivers did not start their vehicles

until

after they had first acquired their schedules and

paperwork.

Overnite was

to file

a final report with this Board

no later than September

1,

1987 explaining the changes completed

and results achieved.

The Board retained jurisdiction pending

final disposition.

These requirements were based on the

recommendations contained in

a study contracted by Overnite and

submitted

to the Board June

16 and July

3,

1986.

9

2—144

---

—2—

Overnite

requested

an

extension

of

time

to

construct

the

noise

barrier,

which

this

Board

granted

until

July

1,

1987

by

its

June

10,

1987

Order.

The

Citizens

complained

by

a

letter

dated

June

29,

1987

that

they

felt

the newly constructed wooden barrier

was

ineffective

in its purpose.

Overnite submitted

its final report to this Board on

September

1,

1987 and its amended final report on September 17,

1987.

Overnite reports having reduced the engine speed of

its

yard tractor, erected the primary noise barrier along

its

southern perimeter,

erected a secondary noise barrier on the

sides of

its

truck fueling area,

restricted traffic and vehicular

activities near the southern end of its facility,

revised

its

public address system,

and instituted a program of employee

training

to reduce

its noise emissions.

Part of the noise

barrier along the southern boundary

is a pre—existing structure

of nearly

the same height as the erected barrier.

The erected

barrier

is of wood.

Overnite claims to have expended about

$48,300 towards monitoring

and controlling

its noise emissions.

Monitoring

at various points along

the noise barrier

indicates significant reductions

in the center of the barrier,

arid some reduction at its eastern end.

There was virtually no

reduction

at

a point beyond the western end of the barrier.

Much

of the noise

at that location was attributed

to the neighboring

property to the west:

Advance Transportation.

It

is observed,

however,

that the engineers’

report indicates that Overnite did

not extend

its noise barrier beyond the drivers’ sleeping

quarters building along the south wall

to the western edge of its

property.

There

is,

therefore,

about 50

feet of southern

boundary

not

protected

by

the

noise

barrier,

Overnite

also

did

not build any barrier along the southern portion of either

its

eastern

or

western

boundary.

Examination of the engineers’

data tabulations indicates

that although most of

the noise recorded at the western site was

attributable to Advance Transportation,

a

significant portion was

attributable to Overnite.

The record indicates this monitoring

site is located about 150 feet west of Overnite’s western

boundary,

or 200 feet from where the Overnite noise barrier ends

at the western edge of

the sleeping quarters.

Discussion

Overnite has demonstrated significant reductions

in noise at

locations directly opposite its noise barrier as a result of

its

operational and facilities changes.

Those changes, however,

do

not fully comply with this Board’s January 8,

1987 Interim

Order.

That Order mandated,

inter

alia, that Overnite construct

a noise barrier

along

its entire southern boundary, excluding

that portion occupied by the drivers’ sleeping quarters,

and

along

so much of

its eastern or western boundary

as was necessary

92—145

---

—3—

to reduce

its noise emissions.

Overnite’s discretion was not

entirely unbridled in defining “necessary”

for the purposes of

compliance.

The

January

8,

1987

Order

considered

the

July

3,

1986

ETA,

Inc.

study

which

indicated that the noise barrier

should extend over the entire length of the southern boundary,

except that portion occupied by the sleeping quarters, and along

the southern 400 feet of the eastern boundary.

That study

indicated construction of a western barrier would avail little

benefit

because

of

the

Advance

Transportation

activities

in

that

area.

Overnite has failed to build

a noise barrier along the

western

50

feet

of

its

southern

perimeter.

Overnite

has

failed

to explain its decision not to do so.

The January

8,

1987 Order,

in light of the July

3,

1986 engineers’

report, clearly required

Overnite

to do so.

The monitoring data indicate that most of the

noise

at the western monitoring site beyond the Overnite noise

barrier

is from the Advance facility, but a significant portion

of

it emanated from Overnite operations.

This could indicate

that ideally any barrier would extend

to include the southern

boundary of the Advance property,

but that

is not the issue

here.

It

indicates that noise emanates from the Overnite

facility

to this area and there is no noise barrier

to protect

this location.

The Board realizes that maximum noise reductions

from

Overnite

alone would require completion of the barrier along

this

50

feet

of

south

perimeter,

then

extension

along

some

distance

of

the

southern

part

of

the

west

perimeter.

Construction

of

a barrier along

the western perimeter would only

reduce Overnite’s noise,emi~sionsand do nothing

to alleviate

those of

Advance Transportation.

The Advance Transportation

emissions are not before

the Board,

and this Final Order can only

address

the

Overnite

emissions.

The

ETA,

Inc.

study

recommended

construction

of the barrier along the western 50

feet

of south perimeter,

but not along any southern portion of

the western perimeter.

The Board will now explicitly require

construction

of

this

omitted

50

feet

of

barrier

to

complete

the

south perimeter noise barrier.

The engineers’

July

3,

1986 recommendation was that Overnite

construct

at

12—foot

noise

barrier

along

the

southern

400

feet

of

the east perimeter.

Monitoring data from the east end of the

south barrier indicate that the noise reduction in this area was

less significant than that at

the center

of the south barrier.

The significance of

this result is greater

in light of the

expectation

of

greater

noise

emissions

at

the

center

location

in

the absence of

the

barrier.

The adjoining land immediately to

the east is

a retention basin which would emit little

if any

noise,

and

emissions

to

that

area

are

of

little

consequence.

The

land

to the south and southeast, however,

is residential,

so

minimization of noise emissions to this area

is of interest.

The

Board believes that explicitly requiring Overnite to fully adopt

the engineers’

recommendation and construct the omitted 400 feet

92—146

---

—4—

of 12—foot noise barrier along

the southern end of its eastern

perimeter would minimize the noise emissions

to the neighboring

residential area.

With regard to all other

noise reduction measures undertaken

by Overnite,

i.e., the operational changes made,

the Board will

require no more than that Overnite continue their exercise to

minimize its noise emissions.

The Citizens have failed to

criticize the results of these measures as reported by the

engineers’

study.

The foregoing discussions, ‘together with those included in

the January 8,

1987 Interim Order, constitute the Board’s

findings of facts and conclusions

of law in this matter.

ORDER

For the

foregoing reasons,

the Board hereby Orders Overnite

to undertake and perform the following actions.

1.

Erect,

before

July

31,

1988,

a

12—foot

tall

noise

barrier

of

solid

construction

along the south perimeter of its property

extending

from

the

western

most

end

eastward

to

the

western most end of

the

drivers’ sleeping quarters;

2.

Erect,

before

July

31,

1988,

a

12—foot

tall

noise.. barrier

of solid construction

along

the

southernmost

400

feet

of

the

east perimeter

of its property;

3.

Prohibit

its drivers from starting

their

assigned trucks

in the morning until they

have

first

obtained

their

schedules

and

paperwork

and

otherwise

fully

prepared

for immediate departure;

4.

Prohibit more than one truck south of the

north

edge

of

the

terminal

building

to

await fueling at any one time;

5.

Restrict

or

minimize

all

traffic

and

other

vehicular

traffic

in

the

extreme

southern end of its property;

6.

Operate

its

public

address

system

and

orient

its speakers

in such a manner that

noise

emissions

from

this

source

are

minimized

to

the

lowest

practicable

level;

92—147

---

—5—

7.

Operate

arid

maintain

its

yard

tractors

and

similar

vehicles

at

such

reduced

engine

speeds

that

their

noise

emission

are kept at the lowest practicable level;

8.

Train

and

educate

all

employees

working

on

its

property

who

perform

duties

capable

of

generating

significant

noise

emissions

in methods

of performing

those

duties

which

would

minimize

noise

emissions

to

the .residential

area

south

of the property; and

9.

Post conspicuous warnings for

all persons

on the property against the generation of

noise likely

to emanate

to

the resident-

ial area

to the south of property.

IT

IS SO ORDERED

Board Member

3. Theodore Meyer dissented.

I,

Dorothy M.

Gunn, Clerk of the Illinois Pollution Control

Board,

hereby cer,~ifythat

the aboy~Opj~nionand Order was

adopted on the

~

day of _________________________,

1988, by

a

vote of

4.—/

Dorothy M. Gunn,

Cletk

Illinois Pollution Control Board

92—148

---

State of

illinois

Rules

and

TITLE 35:

SUBTITLE

A:

CHAPTER

I:

POLLUTION

CONTROL BOARD

September

1,

1982

92—149

---

State of Illinois

Rules

and

TITLE 35:

SUBTITLE

A:

CHAPTER

I:

POLLUTION

CONTROL BOARD

This printing of Title

35: Environmental Protection

Subtitle A:

General Provisions, Chapter

1: Pollution Control

Board

1nclude& anaendmenU through

September

1,

1982.

92—150

---

TITLE 35:

ENVIRONMENTAL PROTECTION

Depaninent” means the flhinois Department

of Nuclear

Safety.

SUBTITLE

A:

GENERALPROVISIONS

CHAPTER

1:

POLLUTION CONTROLBOARD

PART

101

GENERAL

RULES

SUBPART

A: GENERAL

PROVISIONS

SUBPART B: CANONS OF

ETHICS

Financial

Disclosure

Lx

pane

Contacts

Improper

Public Ity

SUBPART

C:

JUDICIAL REVIEW

Section

101.140

Review of

Final Orders and Stay Procedure

Appendix

Old Rule

Numbers Referenced

.4L7FIORJTY Authar~zed

b)

Section

26

of

the

En&.’ironmental Pro’

~ct,on

Act

(111

Ret. Stat

1979,

c/i.

111

112,

par.

1026’;

and imp/c’

~wntzng

Sections

5.

7,1,

27, 28, 29,

31, 32. 33. 35, 36. 37, 38, 40

and

41 ofth,Entironm.entalProsectg,nAc:

(J/l

Rec. Stat

1979.

di.

111

l/2,pars

2005.

1007.1,

1027.

1028.1029. 1031.1032,

1033,

1035.

1036.

1037,

1038.

1040

and

1041’,

and

Section

4

of “An

Act

in

relation

to

natural resources, research,

data

colLection

and

eni,iron-

mental studies. “approL’ed and

effectii’e

July

14.

1978.

as

amended

(Ill. Re~Stat.

1979,

c/i.

96

112,

par.

7404’.

SOtRCE

Filed wa/i

Srcreta~y

ofState

Januo~y

1, 1978; codified6

IlL

Reg

8357.

SUBPART

A:

GENERAL PROVISIONS

Section

101.10)

Applicability

This

Chapter

governs

the

practices

and

procedures of the Board

and all

proceedings conducted

by

the

Board

Unless

the

contrary

is clearly

indicated. all references

to

“Parts”

or “Sections’

are

to

Illinois

Admirnstrstive

Code.

Title

35:

Environmental

Protec-

tion

For example,

“Part

309”

is

35

III. Adin

Code309,

and “Sec~

t3on 309.101”

i5

35

III.

AiIm

Code

309.101.

SectIon 101.102

Definitions

As used

in

Part.s

101-107. the

following terms

mean:

“Act”

means the

Environmental

Protection

Act

(Sections

1.511

and

all

amendments

thereto

(ifl.

Rev

Stat

cli.

111

112,

pars

3001.1051

as

amended’

“Agenc~”means

the Illinois Environmental

Protection

Agency

“Board”

means

the

Illinois Pollution

Control

Board

“Chairman”

means the

Chairman

of the

Board

“Clerk”

means

the Clerk of

the Board

‘Document”

means

pleading,

notice,

motion,

affidavit,

memorandum.

brief.

petition, or other

paper

or

combination

of

papers

required

or

permitted to be

filed.

‘Economic

Impact

Study”

means

the

study

prepared

by

the

Institute in accordance with Ill.

Rev.

Stat.

1979, cb.

96

112,

par.

7404.

tnvironniental

Register” mean.s the

official Board

publication

nontaining

Information

and

legal

notices

regarding

Board

activities.

“‘Hearing

Officer”

means

a

person duly

qualified and

designated

as

a

H.aring Officer

under Section 5(ai of

the

Act.

“Institute”

means

the

Illinois

Department

of

Energy

and

Natural Resources, formerly the

Institute

of

Natural Resources

“Person”

means

any entity

defined

in

Section

3

of the Act.

‘NPDES”

means

the

National

Pollutant Discharge

Elimination

System

for

issuing,

establishing conditions for, and denying

per’

mit.1

under

Section 402 of

the

Clean Water Act (Pt 92.500

(33

USC.

1251.

13421.

All

terms

used in

connection

with

NPDES

which

have

been

defined

in

the

Clean

Water

Act

or regulations

adopted thereunder

shall

have

the meanings

specified therein.

unless specifically noted

otherwise.

“NPDES Permit”

means an NPDES

permit

iuued

by

the Agency

or

the

United States Environmental Protection Agency

Section

101.103

Filing

Documents

and

requests permitted or

required

to

be

filed

with

the

Board

or

its Clerk

shall

be

addressed

and

mailed to

or

filed

with

the Clerk

at

‘the

office

address.

The

office address

of the

Clerk

is 309 West

Washington

Street.

Suite

300.

Chicago.

Illinois

60606.

The

office

of

the Clerk

ii

open

for

filing.

inspection,

and

copying

of

documents

from

8:30

am

to

5:00

p.m

Monday

through

Friday.

except

for national

and

state legal

holidays

Section

301.104

Form ofDocuments

a~

Documents

shall clearly

show

the file

or docket

number

and

the titleof

the

proceeding with

which they are filed.

and

shall

be

designated

“Petition

for

Amendment

to

Regulation”,

“Complaint”.

“Petition

for

~‘ariance”.

“Petition

for

Review”.. “Motion”.

“Public

CQmment”

or

any

other

beading

which

describes

the

nature

of

the

relief

sought.

b’

Except

as

otherwise

provided. 10

copies of

all

documents

shall

be filed

with

the

Clerk.

Onlt’

two copies of any

dii

covery

motion,

deposition.

inlerrogatories.

answer

to

Iziterrogatories.

or

subpoena

need

be

filed with the Clerk

ci

Documents,

excluding

exhibits,

shall

be

typewritten

or

reproduced

from

typewritten

copy

on

unglazed

white

paper

of greater

than

12

pound

weight

and

measuring

6”

X

10

112”

cr8 1’2” X

1”.

Reproductions ma~

be made by

carbon or electrostatic copying machine or any other pro

cess

that

produces

legible

bl.ck.on-white

copies

All

documents

shall

be

fastened

on

the

left

aide

or

in

the

upper

left

hand

corner

The

left

margin

of

each

page

shall

be

at

least

1

1/2

inches

and

the right

margin

st

least

one

inch

The

Board

may

make an

exception

from

these

requirements (or

citizen complaints

d’

One

copy

of

each

document

filed

need

be

signed

b~the

party

or

by

his

authorized

representative

or

sttorfle’

The first document

filed

in any cause or firstserved

up’r.

the

opposite

party shall

bear

the business

addres-

and

telephone

number,

if

ant. of

tht

attorne

filing

the

same.

or

of

the

party

who

appears

in

hii own

proper per.on

ApplIcabilIty

Definitions

Filing

Form of

Documents

Computation

ofTime

Appearances

Public Information

Publications

Board

Meetings

Informal Complaints

Section

101.101

101.102

101.103

101.104

101.105

101.106

101.107

101.108

101.109

101.110

Section

101.120

101.121

101.122

1

92—151

---

e)

Except

as

otherwise

provided

by Ill.

Rev. Stat.

1979. cli

116. pars

35.39. or

by

leave

of the

Board,

documents

on

microfiche are not

acceptable

for

filing,

Section 101.105

ComputatIon

of

Time

at

Cornput.ation

of any

period

of

time

prescribed

by

these

rules

or

the

Act

shall

begin with

the

first

business

day

following

the

day on

which

the

act

event,

or develop’

merit

occurs

and

shall

run until the

end of

the

last

day, or

the

next following

business day

ifthe

last

day

is a

Satur

day. Sunday,

or

legal holiday.

Where

the period of time is

five days or

le~a.

Saturdays.

Sundays and

legal

holidays

shall

be

excluded

in the computation

of

time.

b)

Notice

requirements

shall

be

construed

to

mean

notice

received,

but

proof

that

notice

was

sent

by

means

reasonably

calculated

to

be

received

by

the

prescribed

date shall

be

prima fade

proof that

notice

was

timely

received.

Section 101.106

Appearances

a)

Any

person

entitled

to participate in Board

proceedings

shall appear as

follows

1)

A natural

person in

his

own

behalf

or by

an attorney

at

law

licensed

and

registered

to

practice

in

the

State

of Illinois.

or

both.

2’

Any

other

person

through

arty

bonafide

officer.

employee,

or

representative

or

by

an

attorney

licensed

and

registered

to

practice

in

the

State

of

Illinois. or

both

b’

Attorneys

not

licensed

and

registered

to practice in

the

State

of

Illinois

ins’

request

to appear

on

a

particular

matter

on motion filed

with the

Board

ci

An attorney appearing

in

a representative capacity shall

file

a

written

notice

of

appearance

with

the

Clerk.

together

with

proof

of

service

on

all

parties

or

their

respective

attorneys

Section 101.107

Public information

ai

The

Board

shall

maintain

files

containing

all

informs’

tion submit~edto or

produced

by

the

Board

or any of its

Members relating to matters within the Board’s jurisdic’

tion

Without

limiting

the

foregoing,

the

files

shall

include:

pleadings,

motions,

notices,

minutes.

transcripts.

exhibits.

orders and

opinions,

proposed

and

adopted

regulations.

communications

to

or

from

the

Board

or

any

Board

Member,

the

Environmental

Register

and

other

Board

releases.

business

records.

informal complaints,

and

such

internal communications

filed

at the

request

of

any

Board

Member.

b’

All

such

files shall

be

open

to

reasonable

public

inspec.

tion

and

copying.

except

material

stamped

by

Board

Order.

“Not

Subject

to

Disclosure”.

Only

the

following

materials may

be so

stamped

by

the

Board’

1)

Information

which

constitutes a

trade secret

2i

Information

privileged

against

introduction

in

judicial proceedings.

3’

Internal

communications

by

the Board.

4,

Information concerning

secret

manufacturing proc.

eases

or

confidential

data submitted

by

any

person

under

the Act,

and

5’

Income

and

earnings

data

when

not

an

issue

in

the

proceeding

c)

Except

in the

case of

internal

communication, material

shall

be

stamped

“Not

Subject

to Disclosure”

only

upon

written

application

at

the

time

the

material

is

submit’

ted.

An

application

for

nondisclosure

shall

contain

the

following:

1)

identific.ation

of

the

precise

material.

or parts

of

material,

for

which

nondisclosure is

sought.

2)

Indication

of

the particular nondisclosure

category

into which

the

material fal1a~arid

3)

A

concise

statement

of

the

reasons

for

requesting

nondisclosure.

The

application

shall be

verified

and

contain

such

data

and

information

as

will

apprise

the

Board

of

the

nature

of

the

material

for

which

nondisclosure

is

sought.

the

reasons

why

non~

disclosure

is

necessary.

the

number

and title

of

all

persons

familiar

with

such

information,

and

hov~

long

the

material

has been

limited

for disclosure.

A

single

copy

of

the

material

for

nondisclosure

shall

be

filed

with

the

Clerk

with

the

application

and

shall

be

available

for examination

only

by

Board

Members.

The

Board

shall

promptly rule

on

every

application

and

inform the

applicant of its decisiott

Art

application

shall

bar

public

inspection

of

the

material

for nondisclosure until

the application has

been

disposed

of

by

the

Board

and

the

time

for

appeal

has

run

The

Board

may

enter

conditional

nondisclosure

orders

allowing

withdrawal by

sppli.

cant

of the material

covered

by

such order. at

which

time

the

Board’s

ruling on the

application

shall

be

based

on

the

record

excluding the

material

so with.

drawn.

d’

Internal

communications

may

be

stamped “Not

Sub3ect

to

Disclosure”

by any

Board Member

at

any

time. subject

to review

by

the

Board.

e’

The

Clerk

shall

maintain

a

comprehensive

index

of

all

Board files

open

to

public

inspection.

ft

Reasonable

copying

facilities

shall

be

available

at

the

Board

offices

Requests

by

mail

shall

be

honored

A

single opinion or

order will

be furnished

on request

with’

out

cost.

irrespective

of

length.

Requests

for

multiple

opinions or orders totalling

10

pages

or

less

shall

be

fur

rushed

without

cost.

Requests for

multiple

opinions

and

orders totalling

more than 10

pages

shall be furnished

at

a

cost

to

be

determined by

the

Board

plus mailing

costs

However,

the Board

reserves the

right

to contract

with

a

professional

reproduction

service

for

any

cop.ying

that

would

impose

a substantial administrative burden

on

the

Board

and

to

charge

to

the

requesting

party

the

reproduction

and

mailing

costs

incurred

by

the

Board

Section 101.108

Publications

The Board

shall

publish at

least

once every month

an

Environ’

mental

Register

containing

notices

of

meetings.

hearing~.and

reports of

Board

activities

One copy shall

be sent without charge

to

anyone

requesting

it

Copies

of

the

Act

and

regulations

pro

posed

and

in force shall be provided

without charge in reasonable

quantities by mail and

at Board

offices.

The

Board shall

publish

regularly

its

decisions

and

orders,

which

subscribers

ma~

buy

and

receive by

mail at

a

reasonable

cost.

Section

101.109

Board Meetings

a’

All decisions of the Board shall

be made at meetings

open

to

the

public

Three

members

of

the

Board

shall

eon

stitute

a

quorum.

and

three

affirmatie

votet

ahal

be

required

for

an

final

determinations

of

the

Board

except

in

a

proceeding

to

remove

a

seal

under

Section

34’d’

of the

Act

92—152

---

b)

The Board

shall

bold at

least

ore

meeting

a

month

and

shall

adopt

at

the

beginning

of

each

fiscal

year

s

schedule of meetings which

shall

appear at least

once in

its

minutes

and

Environmental Register.

Special meet~

inga

may

be

called by the Chairman

or

by

any two Board

Members upon delivery of 24 hours’ written notice to the

office of each

member. Public

notice of all special meet-

ings

shall be given

at

least

24

hours in

advance

of each

a.ettnc

by posting

at the Board’s

offices.

Iii

emergencies

in which

a

majority of the Board certifies that exigencies

ci time require

a

special meeting to be held

inamedtataly,

the requirements of

24

hour

written

notice

may

be dis’

paused

with,

and

Board

Members

shall

receive

such

notice

as

is

reasonable

under

the

circumstances. Notice

of changes

in the regular meeting schedule

shall be

given

in

the

manner

used for special

meetings.

ci

The

Board

shall

keep a

complete

and

accurate

record of

all

meetings

including

the

votes of individual

members

on all adjudications and

proposed regulations.

SectIon 101.110

Informal Complaints

Complaints

received

by

the

Board

against

particular

pollution

sources

shall

be

filed

with

the

Clerk,

who

shall maintain

a

rile

and

index

of such

complaints.

The

Clerk

shall

send

a

copy of the

complaint

to

the Agency

and request

a

response

to the Board.

At

the time

of the

filing of the

informal

complaint,

the

Clerk

shall

notify the complainant

of his nght

to commence an

enforcement

proceeding

pursuant

to

35

Ill.

Adrn

Code

103

by

filing

a

formal

complaint

and shall

provide

a

form on which

a formal complaint

may

be

filed with

the Clerk

SUBPART

B: CANONS

OF

ETHICS

Section

101

.120

FinancIal Disclosure

rd

Members

shall

comply

with

financial

disclosure

require.

nts as

provided

by

Law

and

Executive

Order.

Section

201.121

ExparteContacts

a~

No member.

hearing

officer,

or

employee

of

the

Board

shall commu.~icate

cx

par’te.

directly

or indirectly,

with

any

person

not

employed

by

the

Board

with

respect

to

any

adjudicative

proceeding

pending

before

the

Board

Lx

parte

contacts

with

reapect

to

individual

pollution

sources which may

become the

subject of such

a

proceed.

ira

are

permissible

to

the

extent

that

information

so

received

is relevant to possible

rule.rnaking proceedings.

but caution

shall

be

exercised

by

Board

members

and

employees

to

avoid

prejudging

the

merits

of any

poten.

tial

individual

case.

Nothing in

this

section

shall

pre.

elude

Board

members,

hearing

officers,

or

employees

from

receiving

informal

complaints

about

individual

pollution

sources in

accordance

with

Section

101.110.

or

forbid

such

administrative

contacts

as

would

be

appropriate

for judges

and other

judicial’officers.

bi

Board

members

and

employees

shall

make

every

reasonable effort

to

assure that any cx part, communica

tions

with

respect

to

nonadjudicative

proceedings

become

a matter

of public record.

in

order thai

informs.

tion on

which

the

Board

bases its

decisions can be subject

to

scrutiny

and

to rebuttal.

Whenever

pracucable.

com~

snunications

shall

be

in

writing

and

sddreswd

to

the

Board

rather than

t.o

individual

members.

SectIon 101.122

Iiproper Publicity

a)

Hearings

should

be

conducted with

fitting dignity

and

decorum. The

Hearing

Officer may

forbid

the

taking

of

photographs

or

the

broadcasting

or

televising of

all

or

part of

the

proceedings

while

the bearing

is

being

con~

ducted

if

be

finds

that such

activities

detract

from

the

dignity

of

the

proceedings

or

unduly

distract

partici.

pants

and

witnesses

in giving

testimony.

b)

Parties

in

proceedings

brought before the

Board shall

at

all

times

conduct themselves with

the

same

degree

of

dignity

and

respect that they would

before

a

Court.

SUBPART

C:

JUDICIAL REVIEW

SectIon 101.140

RevIew of Final Orders

and

Stay

Procedure

~)

Review

of final

orders

of

the

Board

in

regulatory

and

adjudicatory

proceedings

shall

be

pursuant

to

Sections

29

and

41

of

the

Act respectively

and

to

Rule

335 of the

Rules of

the

Supreme

Court

of

Illinois and

any amend’

menu thereto

and

the Administrative Review

Act of the

State of Illinois. as amended (Ill. Rev. Stat.

1979. cli

110,

par.

264)

bi

Procedure

for stay of any

order

to

the

Board

upon appeal

shall

be

as

provided

in

Rule

335

of

the

Rules

of

the

Supreme

Court

of Illinois

and

amendments thereto

ct

For

purposes

of

judicial

review,

Board

action

becomes

final upon

enactment,

or

upon

subsequent

Board

action

on

any

Motion

to

Reconsider

under Section

103.240.

APPENDIX

OLD

RULE

NUMBERS

REFERENCED

The

follou’Eng

zcbk

is

prortded

to

cid

in

referencing

old Board

rule

eusmbers

to

section

numbers

puraisanJ

to codiwotron.

3$

Ill.

Adm.

Code

Parts

101.107

Part

101:

General

Rules

Rule

101

Section

101.101

Rule 102

Section 101.102

Rule

103

Section

101.103

Rule

104

.

Section

101.104

Rule

105

Section

101.105

Rule

106

Section

101.106

Rule 107.

Section

101.107

Rule

108

Section

101.108

Rule

109

Section

101.109

Rule

110

Section

101

110

Rule

801

Section

101.120

Rule

802

Section

101.121

Rule

803

Section

101.122

Rule

901

Section

101.140

Chapter

1:

Procedural

Rules

Part

1: General

Rules

3

92—153

---

TITLE

35:

ENVIRONMENTAL

PROTECTION

BVBPART

A:

GENERAL PROVISIONS

Applicability

Adoption of Regulations

Sect

ion

102.140

Discovery

SUBPART

E:

ECONOMIC IMPACT HEARINGS

Hearings on the Economic Impact Study

of New

Proposals

Hearings

on the Economic impact Studs’

of Existing Regulations

SUBPART

F: BOARD ACTION

Revision

of Proposed Regulations

Notice of Adopted

Regulations

SUBPART G:OTHER PROCEEDINGS

Section

102.220

Other

Proceedings

Appendix

ø)d Rule Numbers Referenced

AtTHORJTY.

AuThorized

b~

Section

26

of

the

Ertt ironmentalPro.

Vecnon

Art

(ill

Ret

Stat

197E~’ ch

111

1.’2.

par

1026;,

and

tsnplr.

men::

rig

Sections

5.

27 and 2~of the Illinou Erii’iron’nentalProte’

tion Act

WI

Ri’z

Star

197s’,

cli

11)

1/2.

pars

1005.

1027

and

102ê’.

and Srct:on

4

of

“An

Act

in

relation

to

natural

resourie~

rescorch.

data

ollect:on and entironmen:ol stud.es. “~pprot’ed

and

r Juh

14,

)97h,

as amended

‘lii Re~Stat

197S’.

cli

96

1.2,

par

7404’

SOL’RCE

Filed u*rh

Serrr:at-~

of

State

Jonuor~

1.

1978

codified

6

211

R~ 8357

4

Section

302.101

ApplIcability

This Part shall apply

to

all

regulatory and other nonadjudicative

bearings

and

procedures.

Hearings

conducted

pursuant

to this

Part

shall

be

deemed

in

the

nature

of

legislative

hearings

Unless the contrary

is clearly indicated,

all

references to “Parts”

or

‘Ssctions”

are

to

IIli~oisAdministrative

Code.

ritle

35~

Environmental

Protection.

For

example.

‘Part

309”

is

35

Ill.

Adm.

Code

309.

a.nd

“Section

309.101”

is

35

Ill.

Adm.

Code

109.101.

$.ctlon

102.102

Adoption of Regulations

a’

No substantive regulation shall

be

adopted. amended

or

repealed

by the

Board until

after

a public hearing

within