ILLINOIS POLLUTION CONTROL BOARD
    June 6, 2002
     
    STEPHEN G. BRILL,
     
    Complainant,
     
    v.
     
    HENRY LATORIA, individually and d/b/a
    TL TRUCKING FOODLINER,
     
    Respondent.
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    PCB 00-219
    (Citizens Enforcement - Noise, Air)
     
     
    CONCURRING OPINION (by T.E. Johnson):
     
    I respectfully concur with the majority opinion. Although I agree with the ultimate
    result, I do not agree with the majority’s analysis used to reach that decision. Specifically, I
    do not agree that TL Trucking, as a pollution source, is unsuitable to the area in which it is
    located, as was decided by the majority in conducting the Section 33(c) balancing test.
     
    As was discussed in the majority opinion, the Board performs a two-step test to
    determine whether noise emissions rise to the level of a nuisance noise pollution violation.
    First, the Board determines if the noise constitutes an interference in the enjoyment of
    complainants’ lives, and second, the Board considers Section 33(c) in determining whether the
    interference is unreasonable. The portion of the majority’s opinion that I disagree with
    concerns the suitability or unsuitability of the pollution source to the area in which it is located.
    As the majority states, the industrial area predates Brill and the other residents, and affords
    facilities in the area a general priority of location. The majority finds that TL Trucking
    “greatly increased the level of noise emissions on Brill’s property,” and notes that “a business
    properly zoned in an industrial area does not have a carte-blanche license to emit substantially
    louder and more intense noise.” I agree that this undermines the respondent’s priority of
    location argument. However, that is not the entirety of the Board’s consideration under
    Section 33(c)iii.
     
    Section 33(c)iii directs the Board to consider the suitability of the pollution source to its
    location, including priority of location. Although increased operations may impact whether or
    not a facility can claim priority of location, it does not mandate a finding that the facility is
    unsuitable to its location. The majority finds that TL Trucking, as operated, is not currently
    suitable to the area in which it is located. I respectfully disagree. It is difficult for me to find
    that an industry located in an industrial-zoned area is not suited to its location.
     
    TL Trucking is suitable to its location, regardless of how it is operated, and I would
    weigh this Section 33(c) factor in favor of TL Trucking. However, a balancing of all the
     
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    Section 33(c) factors still results in a finding that TL Trucking was emitting noise that created
    an unreasonable interference. Accordingly, I am in agreement with the Board’s decision
    today, and respectfully concur.
     
    Thomas E. Johnson
    Board Member
     
     
     
    I, Dorothy M. Gunn, hereby certify that the above concurring opinion was submitted
    on June 10, 2002.
     
     
      
      
      
      
      
     
    Dorothy
    M.
    Gunn,
    Clerk
    Illinois
    Pollution
    Control
    Board
     
     

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