ILLINOIS POLLUTION CONTROL BOARD
August
18,
1988
THOMAS
& LISA ANNINO,
)
Complainant,
v.
)
PCB 87—139
BROcqNING-FERRIS INDUSTRIES
OF ILLINOIS,
Respondent.
MR THOMAS ANNINO APPEARED ON BEHALF OF PETITIONERS;
MR. RAYMOND REOTT
& MS. REBECCA RAFTERY APPEARED ON BEHALF OF
RESPONDENT.
INTERIM OPINION AND ORDER OF TUE BOARD
(by J.D. Dumelle):
This matter comes before the Board upon the September
24,
1987, Complaint initiated
by Complainants Thomas
& Lisa Annino of
520 Shorely Drive, Barrington,
Illinois.
The Complaint alleged
excessive noise associated with the operation of Respondent’s
maintenance operations and night storage
of garbage collection
trucks.
Complainants allege that Respondent’s facility causes
loss of sleep; prevents the use and enjoyment of backyard patios
& balconies;
forces neighbors
to keep windows closed during
summer months; causes windows
to rattle and has caused the loss
of
renters.
Hearing was held on January
13, 1988 at
95 East Main Street,
Lake Zurich, Illinois.
The Complainants were represented pro se’
and Respondents were represented by counsel.
Séver~lmembers of
the public attended and testified.
DISCOVERY ISSUES
There
is one discovery issue outstanding which must be
addressed
at this time:
Is the home—made VCR recording (of noise
and activity
at Respondent’s facility) admissible as substantive
evidence?
It
is not.
Although videotapes are admissible
so long as
their
probative value
is not outweighed by any inflammatoLy effect
(Barenbrugge
v. Rich,
141
Ill. ~tpp.3d
1046,
490 N.E.2d 1368),
the video tape proffered in this matter
is not an accurate
representation of
noise and sound levels and thus has no
probative value
in
a case,
such as
this, where excessive noise
and sound
is the crucial issue.
91—349
—2—
Mr. John T. Davis, senior
consultant
for Occusafe,
Inc.,
and
a certified industrial hygienist testified concerning the lack of
accuracy of the home—made video
tape recording.
Mr. Davis,
an
expert
in the area of sound measurement techniques testified that
the home—made video recording does not operate pursuant
to the
strict standards and requirements of professional sound measuring
equipment.
R.
362.
Mr.
Davis stated that the equipment used utilizes either an
automatic recording
level or has no control over the recording
level.
R.
364.
He further questioned the accuracy and
reliability
of the device, noting that this
type of equipment
is
prone
to picking up nearby,
ambient sounds,
or can
be operated so
that the recorder picks up a predominant sound,
and automatically
adjusts
to the sound such that,
on playback, one single source
is
predominant.
However,
if another sound presents
itself near the
same level, the hand—held video recorder
is likely to shift and
adjust
to the new sound.
R.
314.
Having testified that he listened to the entire tape,
Mr.
Davis noted that the above described phenomenon explained why
“there are times on the tape when the birds and trees
sound very
loud and almost
to the point of
the same sound intensity or
louder than the trucks
...“
R.
365.
Mr.
Davis
further explained the differences between the type
of professional equipment normally reserved for decibel reading,
vis—a—vis the hand—held,
cam—recorder;
and concluded
that the
cam—recorder was unreliable
as
a sound measuring machine.
R.
368.
The Board finds persuasive the arguments raised concerning
the accuracy and admissibility of Complainant’s home—made, hand—
held,
cam—recorder videotape.
The hearing officer was correct
in
denying the admissibility
of Complainant’s Exhibit No.
10.
We
affirm that decision.
MOTION TO STRIKE PORTIONS OF PETITIONER’S
REBUTTAL TO RESPONDENT’S POST-HEARING BRIEF
On March
24,
1988, Respondent filed
a Motion To Strike
Portions
of Complainant’s Reply Brief
(of March
4,
1988)
stating
that the reply brief contained unsupported allegations
of fact
not supported by the record and not argued
in Complainant’s
initial post—hearing brief.
The Board will not consider allegations
of fact not
supported by the evidence.
Respondent’s Motion To Strike is,
therefore,
unnecessary and denied.
91—350
—3—
BACKGROUND
Respondent,
Browning Ferris Industries of
Illinois,
Inc.
(BFI)
maintains
a truck maintenance and overnight storage
facility located on Route No.
59
in Barrington,
Illinois.
Route
No.
59 intersects with another busy highway
(Route No.
14) just
north of the BFI facility.
R 51,
78, 246.
To the south,
an
active rail freight line cuts through the area at an angle
(Resp.
Ex. A).
Complainant’s condominium complex was built within the
resulting triangle formed by the rail freight
line,
Route No.
59
and Route No.
14.
BFI’s facility
is located within
the same triangle as the
condominium complex.
The facility consists
of
a yard capable of
storing 70—80
trucks,
a small office and two garages, one used
for repairs and one used for parking.
Although Respondent’s
brief asserts that there are currently 65 refuse collection
trucks located at the facility
(Resp. Br.
at 3),
there is no
definitive estimation of the number of
trucks.
The Board notes
that there are apparently between 65
and
80 trucks currently
utilizing this
facility.
R.
350.
On average, Respondent’s trucks leave the facility at
approximately 6:00 a.m.
to conduct their daily routes.
This
involves the pick—up of solid,
non—hazardous wastes and
subsequent disposal
in accessible
landfills.
The area serviced
by this facility is bounded by Streamwood
to the South,
Mundelein
to the North and Elgin to the West.
In addition to acting as a staging area for trucks and
drivers,
the facility also maintains and repairs equipment on—
site.
There are three eight—hour
shifts,
each performing a
separate function.
During
the 7:00 a.m.
to 3:00 p.m.
shift, BFI
tries
to perform the major repairs
(R. 308) which may require the
removal and/or rebuilding of truck engines.
This entails the use
of large equipment,
including cranes and hoists.
R.
309.
The
second shift
(3:00 p.m.
to 11:00
p.m.)
is used to perform tire
repairs
CR.
334)
and other
necessary repairs noted
by drivers
during the day’s routes.
R.
310.
If a truck breaks down during
its route,
it
is brought back
to the facility.
If
it
is
determined that welding
is required, wastes
in the truck are
dumped prior
to welding.
(This
is for safety reasons because
some wastes are flammable).
The repair
is made and then the
waste
is placed back into the truck
by use of
a Cat 920 Front—End
Loader.
R.
268.
The third shift
(11:00 p.m.
to 7:00 a.m.)
is
used for preventive maintenance and brake repairs so that the
trucks are ready
for the next day’s routes.
When they return
from their daily
routes,
the trucks are parked at the back of the
facility,
close
to the condominium complex.
91—351
—4—
COMPLAINANT’ S CASE
Complainants called
8 witnesses
in
support of
its claim that
noise emanating from BFI’s facility constitutes an unreasonable
interference with the use and enjoyment of the condominium
complex.
Complainant first called Mr.
Emanuel Master, who initiated
a
noise complaint against BFI
in
1979.
Mr. Master owns a
condominium unit which, he says,
is located approximately 15
feet
from BFI’s facility.
R.
23.
~1though Mr. Master no longer lives
at the condominium complex,
he visited the site one day before
testifying, and had
lived
in the condominium for several years
previously,
including June of
1987.
Mr. Master complained about
the use of
a particularly loud piece of equipment called
a
“Detroit Diesel”; he also complained that the repair garage’s
doors were left open during the summertime;
thereby allowing
noise
to escape.
R.
26.
Mr. Master further
testified concerning
the negative effects
that the noise has imposed upon him when he
was residing there.
Mr.
Master complained about the back—up warning bell on the
dump trucks.
He stated that the bell
“is constantly going on and
off all night...”
(R.
26)
“24 hours a
day,
except Sunday, when
they are not there 24 hours...”
(R.
28).
Mr. Master
testified that he could not open his doors due
to
the noise:
“we have
to keep everything closed and under
air
conditioning because there
is no way that you can listen to this
and rest...”
(R. 28).
Next, Complainants called Ms. Cynthia Di Nino (daughter of
Mr. Master)
of Apt. No.
520, Shorely Drive.
Ms. Di Nino lived
approximately one block from the BFI facility from 1981—1986.
R.
38.
Ms. Di Nino stated that the back—up warning beeps are loud
and disturbing
(R.
40),
that there
is excessive noises associated
with tractors hauling and dropping sheet metal ~(R.42),
and that
when the garage doors are open the noise is excessive.
Mrs.
Di
Nino further
testified that when the police arrive the doors are
closed
——
only
to be re—opened upon police departure
(R.
48).
Ms. Di Nino testified that her apartment
is located near Route
No.
14, but that she was not bothered by ambient traffic
noises.
R.
52.
Next, Complainants called Mr.
James Magnanenzi,
of Apt No.
204, Shorely Drive.
Mr. Magnanenzi leases his unit
to renters
who did not testify
in this proceeding.
Mr. Magnanenzi testified
that excessive noise had cost him one tenant
in 1987.
R.
81.
On
cross examination, Mr. Magnanenzi admitted that Route No.
14 does
cause some noise
——
but that this noise never drowns out the
sound from
BFI.
9 1—352
—5—
Next, Complainants called Ms. Susan Schick,
of Apt.
201,
530
Shorely
Drive.
Ms.
Schick
currently
lives
in
the
unit
and
has
lived there since
1985.
Ms.
Schick testified that the noise is
ongoing,
summer
and
winter.
R.
85.
In
particular
she
complained
about
the
back—up
beeper
warning.
R.
98.
Ms. Schick admitted
that
she
was
aware
of
BFI’s
existence
prior
to
moving
in
(R.
95)
and that she is
a very light sleeper.
R.
88.
Ms. Schick noted
that her son, who
is
a heavy sleeper, does not have as much
of
a
problem with the noise.
R.
89.
Next Co—Complainant Mrs. Lisa Annino testified.
Mrs Annino
lives at Unit 101, 520 Shorely Dive and has lived there since
August of 1985.
R.
103.
Mrs.
Annino stated that she was unaware
of BFI’s existence prior
to actually moving into the condominium
complex
(R.
108), but became aware of excessive noise as soon as
she moved in.
R.
112.
Although Mrs. Annino complained of
several sources of
noise;
she identified
the back—up warning beep
as particularly bothersome.
R.
104.
Mrs. Annino also identified
“machine riveting”,
revving of truck engines, dropped metal
clanging on the ground,
shovels scraping on asphalt, men yelling
and automobile horns honking
as noises which unreasonably
interfere with her use of her condominium unit.
R.
105,
106.
Mrs.
Arinino testified that “the noise
is so bad that it rattles
my windows and it wakes
up my eleven—month old baby.
He wakes up
screaming.”
R.
106.
Mrs Annino further testified that her baby
hasn’t
had
a good night’s sleep or
a nap where he hasn’t been
woken up.
R.
107.
She also testified that the nighttime noise
has kept her awake causing her
to complain to her husband
if she
couldn’t get back
to sleep.
R.
112.
Next,
Complainants called Lieutenant Jeff Lawler,
a
12 year
veteran of the Barrington Police Department.
Lt.
Lawler
testified that in 1978 and 1979 he responded to one call
complaining of excessive noise.
Lt. Lawler recalled that the
garage doors were open and mechanics were working inside with
commercial
radios
on.
R.
123.
He further testified that he
could hear
a “banging noise”
from
the roadway on
Roi..ite No.: 59
before he pulled into the facility.
R.
124.
However,
Lt. Lawler
was unable
to ascertain the cause or origin of that sound.
Next,
Complainant called Mr. Gregory
Zak,
noise technical
expert for the Illinois Environmental Protection Agency (IEPA).
Mr.
Zak
16 years experience and has handled
1,000 noise cases.
R.
151.
Respondent stipulated to Mr. Zak’s status as an expert
in sound measurement.
R.
130.
Mr. Zak
testified that he researched IEPA’s files
discovering several noise complaints and
a June 16,
1980,
letter
from the President
of BFI, Inc.
to the Agency wherein BFI agreed
to “21 points
of noise abatement.”
Pet.
Ex.
7.
R.
133.
Mr.
Zak
also testified that the IEPA has determined
that BFI, Inc.,
“has
been
in violation
of the provisions having
to do with the sound
91—353
—6—
emissions from this particular
facility”
in
1979 and 1980.
R.
137,
138.
In addressing
the complaints about the back—up beeper
sounds,
Mr.
Zak
testified
that
pursuant
to
discussions
with
OSHA
officials he believed that the back—up warnings can be
disconnected
as long as someone acts
as a visual spotter
to
ensure that no one
is behind
a truck
traveling
in reverse.
R.
154.
Mr.
Zak admitted that the IEPA had not taken any sound
measurements
at
the
BFI
site
since
1980;
this notwithstanding
the
fact
that
he
visited
the
site
the
morning
of hearing.
R.
173.
Mr.
Zak also admitted that to the best of his recollection BFI
responded positively to all 21
abatement points contained in the
letter of June 16,
1980.
Additionally, concerning the
disconnection
of
back—up
warning beepers,
Mr.
Zak admitted that
OSHA has not,
to his knowledge,
given official clearance
for
removal of beepers; and that he did not know whether anyone at
IEPA has ever proposed the procedure
to BFI.
R.
189,
190.
Finally Co—Complainant Mr. Thomas Annino,
testified.
Mr.
Annino admitted that he never examined the site prior to purchase
——
but he knew that the unit was located
in a heavily traveled
area,
containing rows of businesses.
R.
218.
Mr. Annino
complained that the trucks come and go everyday, with the level
of sound
being
“too much.”
He also complained about
the back—up
warning beepers.
R.
224,
225.
Mr. Annino stated that officials from BFI did meet with the
condo association in attempting
to resolve the problem
(R.
234);
and that BFI, Inc.
serves an important societal function
——
including the maintenance of garbage trucks.
R.
222.
RESPONDENT’S CASE
Respondent called
three individuals on its~behalf.
First,
Mr. Thomas Kleczewski, District Manager of BFI, was called.
Mr.
Kleczewski testified that the site operation is basically the
same
as
in
1960, when the site was chosen.
He stated that this
is a busy area, with heavily traveled traffic routes and airline
traffic.
R.
247.
Mr. Kleczewski admitted that there
is an ongoing problem and
he detailed the corrective action adopted by BFI since
1980.
These
included the following:
insulated garage doors
(R.
265);
installation of intake breather on air compressor
(R.
278);
removal of pagers,
loud bells,
telephones
(R.
281);
re—route of
site traffic
to avoid neighbors
(R.
277);
closing garage doors at
night
to muffle sound
(R.
264); and weekly meetings
to remind
drivers and workers
to avoid excessive noise.
(R.
254).
Q
1—354
—7—
Mr.
Kleczewski
testified
that
subsequent
to
a
meeting
held
with
the
condo
association
in
1987,
BFI
has implemented
the
following
actions:
BFI
re—arranged
the
trucks
parked
near
the
condos
to
avoid
the need
for backing up;
thereby reducing
the
back—up warning on trucks
(R.
285);
BFI has installed an exhaust
fan and ventilation system
(R.
286);
admonished employees about
excessive noise; and re—arranged work schedules.
However, Mr.
Kleczewski stated that he, himself,
never admonished anyone for
excessive noise,
nor has he seen this done
in his presence.
Additionally, Mr. Kleczewski admitted that there
is truck traffic
and employee traffic
in the parking lot near
the condominium
CR.
300), and that he has seen the garage door open during
the warmer
months
——
this
is typical during summertime
(R.
311);
Mr.
Kleczewski concluded by stating
that the Complainants are too
sensitive
to the sounds emanating from Respondent’s facility.
R.
315.
Next,
Respondent
called
Mr.
John
Lowecki,
maintenance
manager at BFI,
Inc.
Mr.
Lowecki corroborated Mr. Kleczewski’s
testimony regarding modifications
to the equipment and operation,
evidencing BFI’s attempts
to lower noise emissions.
R.
320, 324,
331.
In contrast to Mrs. Annino’s testimony,
Mr.
Lowecki
testified that
it would
be
a mistake
to
rev and idle engines
to
maximum:
“you have a potential of an engine coming apart.”
R.
337.
Mr. Lowecki also testified that BFI has obtained and
installed sound
suppression equipment on its equipment,
including
rubber curtains on the sides
of the engine compartments.
R.
331.
Mr. Lowecki also testified that the property on which the
condominium
is now located was an open field when BFI initially
moved its current site,
and the property was an open field until
the condominium complex was built.
R.
344.
Finally, Respondent called John Davis, senior
consultant for
Occusafe,
Inc.
R.
360.
As noted earlier, Mr. Davis testified
mainly concerning the unreliability of the hand—held, home video—
recorder.
Mr. Davis did not testify concerning the amount;of
noise directed across
the property line or concerning any
remedial actions that might be taken.
As a final matter
it should be noted that BFI,
Inc.,
like
complainants,
did not provide any decibel measurement readings.
ANALYSIS
As a threshold matter, this Board will consider Respondent’s
claim that no cause of action exists without an allegation of
a
violation of numerical noise control standards.
Respondent
is
in
error.
Title VI of the Act provides the procedures and standards of
noise control.
Sections
23 and 24
of that Title provide:
91-355
—8—
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,
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
91—35~
—9—
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.
Citizens
of
Burbank
v.
Overnite Trucking, PCB 84—124, decided August
1,
1985.
The pleadings,
testimony and exhibits of complainants are
founded
in this nuisance theory.
This Board and the appellate
courts have held that a cause of action for noise pollution
exists independent of the numerical noise standards set forth
in
Title
35, Subtitle
H: Noise Chapter
I:
Pollution Control
Board.
Illinois Coal Operators Association
v.
IPCB,
59
Ill.
2d
305,
319 N.E.2d 782 at
785.
Thus
the issue
remaining
is whether Respondent’s action
constitutes an unreasonable interference with the enjoyment
of
life or with
a lawful business
or activity.
The evidence
is clear
that Respondent’s activities does
interfere with the use and enjoyment of the condominiums.
The
evidence of loss
of sleep,
inability
to use backyard patios and
balconies,
residents forced to keep windows closed
in summer
and
the loss
of renters due
to excessive noise
is extensive and
uncontroverted.
Testimony by condominium unit owners other
than
Complainants
(the Anninos)
is important in establishing not only
the existence
of
an unreasonable interference, but also in
establishing the range of
interference with the full panoply of
expected uses
for those condominiums in that development.
There
is simply no question that Respondent’s use of that facility
constitutes an unreasonable and unpermitted interference with the
adjacent land owners in the condominium complex.
By emitting
excessive noise on neighbors,
Respondent
is,
in effect,
asserting
a sound—oriented,
noise easement which has not been granted and
does not exist.
Respondent has implied that Complainants are the real party
at fault because
they failed
to investigate or discover the
existence of
Respondent’s operation prior
to purchasing.
While
it is true that Complainants failed
to discover BFI’s facility,
this does not constitute actual or constructive acceptance of
excessive and unreasonable noise.
It
is true that,
generally,
a
party
is charged with constructive knowledge of land conditions
and restrictions which would be discoverable upon inspection.
This shibboleth of the law does not tender to BFI,
Inc.
the right
to seize the right
of quiet enjoyment from nearby condominium
owners.
In reviewing actions of
this sort,
the Board is required,
pursuant to Ill.
Rev. Stat.
1986,
ch.
ill 1/2 par 1033(c),
to
consider enumerated criteria before entering its orders and final
91—357
—10--
determinations.
First
among these
is the character and degree of
interference
with
the
health,
general
welfare
and
physical
property
of
the
complainant(s).
The
record
is
devoid
of
testimony directed
to health issues
as well as
the issues related
to physical property.
However,
the record
is replete with
testimony of the ill effects of Respondent’s facility as related
to the general welfare.
As noted above,
the record describes
the
extent of unreasonable interference:
loss
of ability to sleep,
deprivation of balcony and patios,
loss of renters,
etc...
All
of these demonstrate detriment to the welfare of
complainants.
Section
1033(c)
also
requires
that
this
Board
consider
the
social and economic value of BFI, Inc.’s facility.
There
is no
question that Respondent serves an important social function
——
both
in terms
of health,
and efficient utilization of societal
resources.
Mr. Thomas Annino,
admitted to the social value of
the facility during
his testimony~.
R.
222.
Additionally, the
Board takes notice of the fact that
a facility such
as
Respondent’s
is an important source of jobs as well as local
tax
revenue
——
however the Board points out that exact figures have
not been introduced by Respondent.
It
is important
to note that
timely and proper refuse collection
is expected and
is not a
luxury;
it
is demanded by the people.
To this end Respondent,
in
maintaining
its equipment,
is serving
the will
of people of
Illinois.
Section 1033(c) also requires that this Board review
the
area in which Respondent’s facility
is located
to determine the
suitability of BFI,
Inc.,
to the location in which it
is
situated.
On this issue,
there were last minute allegations of
fact and Motions To Strike.
Without wasting space, the Board
merely cautions that it has not considered facts not in evidence
and will not do so.
As noted earlier both Complainants and Respondents are
located
in the rough triangle created by Routes No 59
,
14 and
railroad tracks and has been so located for twenty—eight years.
There are small businesses,
an office complex, stores, other
factories and residences
in the area.
The Board finds that BFI’s
operation is not unsuited for the locality in which
it
is
situated.
Finally,
Section 1033(c)
requires that this Board review the
technical
practicability
and
economic
reasonableness
of
reducing
or eliminating
the noise emissions from Respondent’s facility.
Based upon the testimony explaining the type of work performed at
the site,
it would appear
to be impossible to eliminate the noise
emissions without ordering that the facility be closed.
The
Board will not do this.
The only
issue is whether
there
are any
actions
or methods available to reduce the impact on
Complainants.
91—358
—11—
The
Board
takes
note
that
it
appears
to
be
routine
for
the
doors
of
the repair garage
to be left open during
the daytime,
in
summer.
R.
310,
311.
The
noises
emanating
from
this
garage
seem
to
be
one
of
the
most
complained
of
sources
of
noise.
B.
26.
There
is a dearth of information regarding
the cost effectiveness
of
using
air conditioning
in this garage.
If the garage door
were
closed
during
the
summer
months,
this
would
seem
to
alleviate
one
of
the
greatest
sources
of
complaint.
Without
the
submission
of
data
regarding
costs
and
cost
effectiveness
the
Board will
not decide whether any sort of temperature control
technology should be utilized.
Respondent introduced Exhibit
‘B’
which purports
to be
a
letter
to the IEPA field manager
setting forth
21
points
of
noise
reduction options which BFI agreed
to undertake.
However,
based
upon the testimony
of neighbors,
BFI has not consistently adhered
to
its promise to implement the practices set forth
in Exhibit
‘
B
‘
.
Also,
it should be noted that the noise most often
identified
as
bothersome
is
the
back—up,
warning
beep
triggered
when
a garbage truck
is operated in reverse.
Respondents claim
that
this
is
an
OSHA
requirement
over
which they have little
control.
Complainants, however,
introduced some evidence that
this
OSHA
regulation
can be avoided
in cases where
a “spotter”
is
employed
to
ensure
that
no
one
is
behind
a
truck
moving
in
reverse.
Complainants evidence was interesting
——
but sketchy.
The
witness
stated
that
use
of
a
spotter
to
obviate
the
back—up
beeper
requirement
originated
with
IEPA.
But
he
could
not
identify
whether
or
not
OSHA
has
ever
officially
adopted
this
alternative.
More information is needed
in order
to determine
whether
this
is,
indeed,
a viable alternative.
If such
is
viable,
it might alleviate the single most identified source of
interference.
(It
should
be
noted that the mere fact that OSHA
requires the back—up beeper does not transform an unreasonable
noise
into
something
reasonable).
Likewise, Respondent’s sound study was incomplete insofar
as
it
focused
solely
on
sound
abatement
at
the
facility.
From
reviewing
the evidence, this Board cannot determine,
for
instance,
whether
a
tall,
sound
absorbing
fence
or
trees
would
greatly reduce transient sound.
Additionally, the Board
is
unable
to determine whether there are other options available for
use at the condominiums which may reduce noise penetration;
the
use
of
insulated
glass
panels
might
be
one
such
alternative.
The Board recognizes that “coming
to the nuisance” is no
defense.
Because Respondent has operated the facility in the
same manner
for approximately
28 years we can assume that noise
emissions have been excessive for
a
long time.
91—362
—12—
The
issue
directly
before
the Board
is whether or not
Respondent’s
facility
causes
an
unreasonable
interference
with
the
use
of
the
condominium
units.
The
answer
is
yes.
Loss
of
sleep,
inability
to
use
patios
and
balconies,
loss
of
renters
and
rattling
of
glass
are
all
unreasonable
interferences
caused
by
Respondent’s facility.
Thus,
the Board
finds that Respondent has violated Ill.
Rev.
Stat.
ch.
111
1/2
par.
1023,
1024,
and
35
Ill.
Adm.
Code
900.102.
However,
because
Respondent
has
acted
in
good
faith
throughout,
the
Board
finds
that
the
imposition
of
a
penalty
would
not,
at
this
time,
aid
in
enforcement
of
the
Environmental
Protection Act.
The Board will, however, retain jurisdiction
over this matter
to endure that the subsequent Board Order
is
carried out.
The Board does hereby adopt the following Order.
ORDER
Respondent,
BFI,
Inc.,
shall comply with the following:
1.
All personnel will
be
cautioned
to
avoid
any
and
all
types of unnecessary noise
in all of their activities.
2.
The North doors of the metal building will be kept
closed, except when moving
a truck
in or
out.
These
North doors will be kept closed at all times during
nighttime hours
(10:00 p.m. to 6:00 a.m.),
unless
impracticable to do so.
3.
The entire interior of the metal building will be
thermally insulated.
4.
The glazed portion of the East door in the North wall
of
the building will be covered with an insulation blanket.
5.
The Northeast corner of the parking lot will not be used
for parking and moving trucks.
The area will only be
used
for
relatively
permanent
storage
of
obsolete
trucks,
and for day—time parking
of some automobiles.
6.
Unless otherwise impracticable, repairs and noisy
maintenance will
be confined
to the later afternoon and
early evening hours.
7.
The East doors of the repair garage building will be
kept closed,
except when moving
a truck
in or
out.
These
East
doors
will
be
kept
closed
during
night—time
hours
(10:00 p.m.
to 6:00 a.m.).
91—361
—13—
8.
The use of
the east bays
of the repair garage building
will
be
discontinued
on
the third shift.
9.
An intake muffler will
be installed on the air
intake or
the
air
compressor
located
in
the
building.
10.
The
use
of
compressed
air
will
be
minimized
at
night,
so
that
permitting
air
to
leak
or
escape
to
the
atmosphere
will be avoided as much as possible.
11.
Pounding or
impact—type operations will be avoided at
night wherever possible.
12.
The use of loud personal radios will be avoided,
particularly at night.
13.
The use of paging horns or similar signaling devices at
night will
be minimized
or avoided
insofar as feasible.
14.
Loud
voices
and/or
instructions
or
shouting,
laughing
or
other human sounds will
be avoided at night when out
in
the yard or when maneuvering equipment
into the
building.
15.
Dropping or otherwise moving tools or other equipment at
night will
be eliminated,
if the moving method involves
impact or scraping noise of any kind.
16.
At night,
trucks shall
be moved as little as possible,
and shall be started only when absolutely necessary.
Also
at
night,
acceleration
and
idling
of
trucks
shall
be minimized as much as possible and trucks,
if moved,
shall
be moved at
the lowest feasible speed and minimum
engine speed.
17.
The two
(2)
trucks that have Detroit diesel engines,
Unit Nos.
79 and
81, will not be movedat
all during
night—time hours.
18.
Trucks
to be serviced
in
the bays on the North side of
the Western most garage will gain access
to those bays
by being driven out the Southwest gate, North on
Barrington Road,
into the Northwest gate,
and then into
the bays.
19.
At night,
insofar
as possible,
the South drive of the
property will be used and movement will be restricted
to
the Southwest corner of the property.
20.
Respondent shall request from OSHA
if it
is possible to
obtain
a clearance or approval
to turn—off the back—up,
beeper warning with use
of
a spotter from movement of
91—360
—14—
trucks within the facility’s confines.
Respondent shall
report
back
to
this
Board
no
later
than
October
15,
1988,
concerning
the
results
of
the
inquiry.
21.
Respondent shall,
by itself,
or through
a consultant,
analyze and review the feasibility of
installing a noise
absorption barrier at the East end
of its property.
This shall include
a review of the reasonability of a
tall, noise absorbing/deflecting fence or
any other
practicable method.
Respondent shall report back to
this Board
no later than October 15,
1988 concerning the
results
of
this
study.
22.
Additionally, Respondent shall analyze and review the
cost effectiveness of utilizing some sort of
temperature
control technology
in the working garage.
Respondent
shall report
the results
of such study no later than
October
15,
1988.
Section
41
of the Environmental Protection Act,
Ill. Rev.
Stat.
1985,
ch.
111—1/2, par.
1041, provides
for appeal
of final
Orders of the Board within
35 days.
The Rules of
the Supreme
Court of Illinois establish filing requirements.
IT
IS SO ORDERED.
I, Dorothy M. Gunn, Clerk
of the Illinois Pollution Control
Board,
hereby certif
that the above Opinion and Order was
adopted on the
______________
day of
?f~cf
,
1988 by a vote
of
_________________.
0
Dorothy
M.
~nn,
Clerk
Illinois Pollution Control Board
91—359
