ILLINOIS POLLUTION CONTROL BOARD
    September 21, 2000
    MICHAEL R. PAWLOWSKI and DIANE K.
    PAWLOWSKI,
    Complainants,
    v.
    DAVE JOHANSEN and TROY QUINLEY, individually
    and d/b/a BENCHWARMERS PUB, INC.,
    Respondents.
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    PCB 99-82
    (Enforcement – Citizens, Noise)
    ORDER OF THE BOARD (by G. T. Girard)
    On August 8, 2000, complainants filed a “Motion for Consideration of Final Opinion and Order” (C Mot.).
    On August 15, 2000, respondents filed a “Motion in Response to Complainants’ Motion for Consideration of Final
    Opinion and Order” (R Mot.). On August 18, 2000, complainants filed a response to the respondents’ motion (C
    Resp.).
    For the reasons indicated below, the Board grants the complainants’ motion for consideration of a final
    opinion and order and denies respondents’ motion.
    BACKGROUND
    On December 18, 1998, Michael and Diane Pawlowski (complainants) filed a complaint against David
    Johansen and Troy Quinley individually and d/b/a Benchwarmers Pub (respondents). In that complaint, the
    complainants alleged that the respondents violated Sections 23 and 24 of the Environmental Protection Act (Act)
    (415 ILCS 5/23 and 24 (1998)) and 35 Ill. Adm. Code 900.102 (the Board’s noise regulations). Complainants
    charged that noise generated in Benchwarmers Pub on West Locust Street in Fairbury, Livingston County, Illinois,
    had unreasonably interfered with complainants in an adjacent building.
    A hearing was held on November 8 and 9, 1999, in Fairbury, Illinois, before Board Hearing Officer Amy
    Muran Felton. Complainants filed a posthearing brief on December 13, 1999, and a reply on January 5, 2000.
    Respondents filed their posthearing brief on January 3, 2000.
    On April 6, 2000, the Board entered an opinion and order, finding that the noise from Benchwarmers Pub
    had unreasonably interfered with the complainants’ lives. Although Benchwarmers Pub is suitably located and has
    social and economic value, the noise substantially interfered in the lives of complainants who have priority of that
    location. Finally, there are practical solutions which are economically reasonable to alleviate the interference.
    Having found that there were unreasonable interferences, the Board found that respondents violated Section 24 of
    the Act and 35 Ill. Adm. Code 900.102.
    In the April 6, 2000 opinion and order the Board directed that the respondents file a report prepared by a
    qualified acoustical consultant by June 5, 2000. The report was to include a plan for reducing the sound levels
    reaching the complainants’ residence and reducing the vibrations through the floor and walls of complainants’
    residence.
    On July 13, 2000, the Board denied respondents’ motion to reconsider the April 6, 2000 opinion and order.
    ARGUMENTS
    2
    Complainants in their motion are asking that the Board issue a final opinion and order in this proceeding.
    Respondents are asking for an order which would allow access to complainants’ property. The Board will
    summarize the position of the parties, respectively, in the complainants’ motion, then respondents’ motion and
    finally the response of the complainants.
    Complainants’ Motion
    Complainants seek a final order in this matter asserting that respondents have failed to comply with the
    Board’s April 6, 2000 order. C Mot. at 2. Specifically, complainants maintain that respondents have not filed a
    report prepared by a qualified acoustical consultant.
    Id.
    Complainants further assert that they have not been asked
    to provide access to their home for testing purposes.
    Id.
    Thus, complainants ask that the Board enter a final order
    which includes direction to remove all means of noise pollution from Benchwarmers Pub. C Mot. at 3.
    Respondents’ Motion
    Respondents maintain that on April 12, 2000, the jukebox and speakers were removed from the
    Benchwarmers Pub. R Mot. at 2; Exh. A; Exh. B. Respondents also assert that they have not had live music at
    Benchwarmers Pub since March 17, 2000.
    Id.
    The only sound emitting “devices” which remain on the premises are
    televisions without external speakers, telephones without speakers, a personal radio in the kitchen, and people. R
    Mot. at 2.
    Respondents obtained a written report from Thadd Walter, the owner of H & W Systems in Fairbury,
    Illinois. R Mot. at 2. The report sets forth recommendations for noise reduction at Benchwarmers Pub.
    Id.
    These
    recommendations include adding insulation and dry wall or even changing the layout of the bar. R Mot. Exh. C.
    Respondents maintain that they would agree to have live music on site only with complainants’ agreement.
    R Mot. at 3. Respondents maintain that they have undertaken “significant action” to reduce the noise level. R Mot.
    at 4. Respondents also assert that the Board’s order did not allow respondents access to Complainants’ home for
    testing purposes. Thus, respondents are seeking an order granting them the authority to have testing performed by
    respondents’ consultant or an independent consultant in complainants’ home. R Mot. at 4. Respondents also seek
    authority to “reduce volatile sound” found by the consultant pursuant to the H & W Systems Report on Sound
    Proofing.” R Mot. at 4.
    Complainants’ Response
    In response to respondents’ filing, complainants express several concerns. First complainants note that
    removal of the jukebox may not be permanent. C Resp. at 3. Also, if the Board were to allow live entertainment,
    such as disc jockeys and bands, with permission of the complainants, complainants are concerned that when they
    disagree with respondents the matter will simply end up back before the Board. C Resp. at 2. The complainants are
    also concerned that there is very little information on the television and radio still in place at Benchwarmers Pub. C
    Resp. at 2.
    Complainants also question the credentials of Thadd Walter with H & W Systems Inc. C Resp. at 3.
    Complainants maintain that Exhibit C, attached to respondents’ motion, does not determine what could be done to
    reduce noise, but is an estimate of costs of certain noise reduction materials. C Resp. at 3. The complainants assert
    that Exhibit C does not indicate that any analysis was performed. C Resp. at 3. Complainants provided a copy of
    Exhibit C to John Yerges who testified for complainants at hearing.
    Id.
    Yerges indicates that the measures are not
    sufficient to address the noise problem. C Resp. Exh. 1.
    DISCUSSION
    After reviewing the Board’s opinion and order of April 6, 2000, as well as the filings currently before the
    Board, the Board is convinced that it is time to enter a final order in this matter. The Board does agree that
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    respondents have failed to abide by the Board’s April 6, 2000 order and the Board is disconcerted by this failure. The
    Board had given the respondents the opportunity to evaluate the noise pollution and develop a solution.
    Respondents have not done so. In fact, the only filing the Board has received from respondents which addresses
    noise reduction is Exhibit C to the motion. There is no catalogue of qualifications, no analysis provided, and no
    recommendations. In short, Exhibit C is merely a list of estimates for various projects which may or may not reduce
    noise emissions.
    The Board acknowledges that respondents have removed the jukebox and speakers from the site and that
    respondents have not had live entertainment since the Board’s April 6, 2000 opinion and order. The record in this
    case indicates that these sources produced unreasonable noise. Therefore, their removal eliminates the sources of the
    unreasonable noise pollution. If the sources of the unreasonable noise pollution have been removed, then a detailed
    plan for reduction of noise pollution in Benchwarmers Pub is not necessary to resolve this case. However, we share
    complainants’ concern about the permanence of such removal. The Board also notes that the only “expert” which
    has been provided to the Board in this proceeding is John Yerges. Yerges recommends removal of the jukebox and
    speakers as well as discontinuing live entertainment. Therefore, the Board will include such a prohibition in its
    order.
    This opinion constitutes the Board’s findings of fact and conclusions of law in this matter
    ORDER
    1.
    The Board finds that David Johansen and Troy Quinley individually and d/b/a Benchwarmers
    Pub (respondents) have violated Section 24 of the Act (415 ILCS 5/24(1998)) and 35 Ill. Adm.
    Code 900.102.
    2.
    Respondents shall cease and desist from violations of the Act and the Board's regulations.
    3.
    Respondents shall remove from the premises and shall not reinstall any jukebox or music-playing
    device with external speakers, unless they would not be in violation of Section 24 of the Act (415
    ILCS 5/24(1998)) and 35 Ill. Adm. Code 900.102.
    4.
    Respondents shall cease and desist from live entertainment, including disc jockeys and live bands,
    unless they would not be in violation of Section 24 of the Act (415 ILCS 5/24(1998)) and 35 Ill.
    Adm. Code 900.102.
    IT IS SO ORDERED.
    Section 41 of the Environmental Protection Act (415 ILCS 5/41 (1998)) provides for the appeal of final
    Board orders to the Illinois Appellate Court within 35 days of service of this order. Illinois Supreme Court Rule 335
    establishes such filing requirements. See 145 Ill. 2d R. 335; see also 35 Ill. Adm. Code 101.246, Motions for
    Reconsideration.
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that the above opinion and
    order was adopted on the 21st day of September 2000 by a vote of 7-0.
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

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