ILLINOIS POLLUTION CONTROL BOARD
April
27, 1989
WILLIAM
E.
BRAINERD,
)
Complainant,
V.
)
PCB 88—171
DONNA HAGAN,
DAVID BROMAGHIM,
and PHIL ROBBINS, d/b/a THE
GABLES RESTAURANT,
Respondents.
MR. JAMES
S.
SINCLAIR APPEARED ON BEHALF OF COMPLAINANT;
MR. JAMES
R.
HElL APPEARED ON BEHALF OF RESPONDENTS.
OPINION AND ORDER OF THE BOARD
(by R.
C.
Flemal):
This matter comes before the Board upon a complaint
filed on
October
21, 1988
by William
E.
Brainerd against Respondents Donna
Hagan, David Bromaghim and Phil Robbins, doing business
as The
Gables Restaurant.
Complainant alleges
that operation of kitchen
exhaust fans at
a restaurant operated by Respondents
is
in
violation of the Board’s prohibition against noise pollution
found
at
35
Ill.
Adrn.
Code 900.102.
Complainant requests that
Respondents be directed
to cease and desist from further
violations.
Hearing was held January
17, 1989
at
the Jersey County
Courthouse, Jerseyville,
Illinois.
Complainant presented five
witnesses,
including himself, and Mr.
Phil
Robbins as an adverse
witness.
Respondents presented
no witnesses.
In lieu of closing
argument,
the parties agreed
to submit post—hearing briefs.
Complainant’s Opening Brief was
filed on February 27,
1989,
Respondents’
Reply Brief was filed
on March
20,
1989, and
Complainant’s Closing Brief was filed on March
24,
1989.
FACTS
Respondents are proprietors of
a
restaurant,
The Gables
Restaurant
(“restaura~nL”), located
in Grafton,
Illinois.
The
restaurant, which
is located
in
a building converted from a prior
use, was opened
for business on
June
17,
1988
(R.
aL
10).
In
preparation
for operation of the restaurant, two exhaust
fans
were
installed
at the rear
of the restaurant building.
The
purpose of
the exhaust fans
is
to remove air from the kitchen
98—247
—2—
area of the restaurant
(R.
at
11).
Neither
at their
time of
installation nor
at present have
the exhaust fans been fitted
with any sound—suppression device
(R. at 14—15).
The exhaust
fans normally are started about one hour before
the restaurant opens
and continued
in operation during the
restaurant’s business hours
(R.
at 23,
24).
Although the
restaurant’s business hours have varied during its time
in
operation,
they generally have been for three
to four hours
on
week days,
four
to twelve hours on Saturdays, and eight
to twelve
hours on Sundays
(Complainant’s Exh.
1).
William
E.
Brainerd
is owner, along with his wife, Amy C.
Brainerd, and mother, Ora K. Brainerd, age 85,
of
a house
(‘tBrainerd
house”)
located at
21 West Clinton Street
in Grafton
(R.
at 18).
The Brainerd house has been occupied by Ora Brainerd
as her primary residence since 1964
(R.
at
19).
.William Brainerd
takes care of all maintenance and improvements
at the Brainerd
house
(R.
at
22).
Both William Brainerd and Amy Brainerd
appeared as Complainant witnesses; Ora Brainerd had recently
sustained
an
injury which prevented her
from appearing
at hearing
(R.
at 19).
The Brainerd house backs
on the restaurant property
(R. at
20).
The separation distance between the rear of the restaurant.
where
the exhaust fans are located and
the rear of the Brainerd
house
is approximately
60 feet
(R.
at
21; Complainant’s Exh.
6);
the distance between
the nearest portion of the Brainerd property
and the
exhaust fans
is approximately 30
feet (Complainant’s Exh.
6).
APPLICABLE LAWS AND REGULATIONS
The
Illinois Environmental Protection Act (“Act”)
specifies
at
Ill.
Rev. Stat.
1987 ch.
1111/2 par.
1024 that:
No person shall emit beyond
the boundaries
of his
property any noise which unreasonably interferes with
the enjoyment of
life or with any lawful business
or
activity,
so as
to violate
any regulations
or
standard adopted by the Board under
this
Act..
The Board’s regulations prohibit noise pollution pursuant
to
35
Ill. Adm. Code 900.102:
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.
98—248
—3—
Noise pollution is defined
at
35
Ill. Mm.
Code 900.101:
Noise Pollution:
The emission of sound that
unreasonably interferes with the enjoyment of life
or
with any lawful business or activity.
NATURE AND EFFECT OF THE SOUND EMISSIONS
William Brainerd characterized the sounds emitted by the
exhaust fans as
“persistent”
and “monotonous”
(R.
at
24)
and
“continuous and loud, consistent and persistent”
(R.
at
37).
He
also characterized his response
to
the sound
of the exhaust fans:
It seems like your ears are being attacked by this
continuous
sound.
It. puts you
in
a state
of mental
stress and annoyance and disturbance,
and
it
is
depressing,
and you just want
to escape
from
it but
you can’t.
(R.
at
24)
He noted
that his mother’s practice had been
to keep her windows
open during the summer months,
but that now when the
fans are
operating she shuts her windows
to keep out their noise
(R. at
26).
He also noted that the sound of
the fans
is “still very
persistent and very loud and noticeable”
even
in the
front yard
of
the house
(R.
at
26).
Amy Brainerd characterized
the sound of the exhaust fans as
“disturbing”
(R.
at
43).
She also noted
that:
It
is very loud.
It sounds like
a very very loud
motor.
It
is consistent.
It keeps running.
You
hope maybe
it will
stop,
but
it does not.
(R.
at
43)
She also noted that when the fans are operating “it would be very
hard to sit out
in
the back yard and enjoy the yard and hear
the
fans running constantly”
(R.
at 43).
Ms. Evelyn Laux, who lives near
the Brainerd house
and who
appeared as
a witness
for Complainant, described the sound of
the
exhaust fans as “annoying”
(R.
at
47,
52—53).
She
further
characterized the sound as:
..
a mechanical
sound,
a motor
running, whirr,
whirr.
It
is continuous,
a droning quality to
it”
(R.
at 47)
Complainant submitLed
tape recordings of
sounds emitted
by
the exhaust fans (Complaint’s Exh.
7).
The recordings were made
on two occasions during
the summer of
1988,
with one recording
made from the
immediate rear of Brainerd house
and the second
98—249
—4—
from a position lateral
to the Brainerd house at a comparable
distance from the exhaust fans
(R.
at 27—28; Complainant’s Exh.
6).
William Brainerd chacterized
the recordings as accurately
depicting the sounds of the exhaust fans
CR.
at
29).
Complainant also presented Mr. Gregory T. Zak as
a
witness.
Mr.
Zak has been employed for
the past sixteen years
by
the Illinois Environmental Protection Agency (“Agency”),
with the
title
for the past two years of Noise Technical Advisor
(R.
at
58; Complainant’s Exh.
8).
During his time with
the Agency Mr.
Zak has evaluated
or investigated “several thousand” noise—
related cases
(R.
at
59).
Mr. Zak noted
that,
as
a general proposition, exhaust fans
generate noise
in their operation
CR. at 61).
Mr.
Zak was also
furnished
a copy of Complainant’s tape recordings
prior
to
hearing
(R.
at
64).
Based
on his review
of
these tapes,
Mr.
Zak
concluded that people whom he has encountered
in his experience
with noise cases would be “generally irritated” by sound
emissions of the type produced by restaurant fans
(R.
at 65).
Mr.
Zak further concluded that
in his opinion the sounds
emitted by the exhaust fans constitute noise pollution under
the
Act and the Board regulations
(R.
at 79,
84,
86).
Finally,
the Board
notes the following passage from the
installation instructions for
the exhaust fans:
These fans exhaust directly away from the building,
therefore,
their location
in placement should be
analyzed.
Proximity to nearby buildings and people
must be considered
to avoid problems.
(Complainant’s
Exh.
1; emphasis added)
It
is clear from this passage that the manufacturer of the
exhaust fans itself contemplated the possibility that placement
of the fans could present problems, presumbly including
the
effects
of the sound
of
the operating exhaust fans on people.
The Board
finds that operation of the exhaust fans
interferes with the enjoyment of life by the Brainerds,
and
that
this interference
is substantial
and frequent and beyond minor
annoyance.
The testimony indicates that the sounds affect
the
r~tental state
of both William and Amy Brainerd,
as well
interfering with the normal
use of the property including leisure
activities.
SECTION
33(c)
FACTORS
The Board
is charged with reviewing certain factors bearing
on the reasonableness of the emissions,
pursuant
to Section 33(c)
of the Act.
These
are:
98—250
—5—
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 involved;
4.
the technical practicability and economic
reasonableness of reducing
or eliminating
the
emissions, discharges
or deposits resulting from
such pollution source;
5.
any economic benefits accrued by
a noncomplying
pollution source because of its delay
in
compliance with pollution control
requirements;
and
6.
any subsequent compliance.
The testimony as noted
above discloses that the
noise
substantially and frequently interferes with the Brainerds’
use
and enjoyment of life and property,
and that this interference
is
beyond minor annoyance or discomfort.
Therefore,
regarding the
first of the
33(c)
factors,
the Board
finds that there
is
a
substantial interference with the general welfare and use
of the
physical
property
of
the
complainant.
Concerning
the
second
of
the
Section
33(c)
factors,
the
Board
finds
that
the
restaurant
has
social
and
economic
value
as
restaurants
generally
provide
services
and
employment
to
people.
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
little
description
of
the
area
beyond
the
restaurant
and
the
Brainerd
property.
There
is
no
information
on
the
type
of
zoning
of
the
area.
However, some
photographs
and
a
map
were
submitted
which
show
that
there
are
other houses
and possibly other businesses
in the
area.
From the
limited
information available,
the area appears
10 be primarily
residential (Respondqnts’
Exh.
1; Complainant’s Exh.
3,
5,
6).
Since
there
is
nothing
in
the record
to indicate otherwise,
the
Board
finds
thaL
the
restaurant
is
suitable
for
the
area
in
which
it
is
located
provided
that
the
noise
can
be
reduced
to
acceptable levels.
98—251
—6—
On the priority of location issue,
the Board
finds that
complainant. has the clear priority.
It
is uncontested that Ora
K. Brainerd has been occupying the house as her primary residence
since 1964.
The restaurant opened
for business
in June
17,
1988.
The only information
in the record of any prior
uses of
the restaurant property
is that it contained
a funeral home
(R.
at 7).
Concerning
the fourth Section 33(c)
factor, the
record
indicates that there
are
technically practicable and economically
reasonable methods for making some reduction
in the noise
that
is
generated by the fans.
Gregory Zak testified that the noise
generated from
the fans can be controlled
(R.
at 61—62).
He
further noted
that silencers are available for
fans of
the type
used at the restaurant,
and
that such silencers do not
significantly hamper
the operations of
a
fan
(R. at 66).
Mr.
Zak made recommendations regarding
the amount of
silencing advisable
for the exhaust
fans:
From my experience of fans
in the past,
in looking
at
the Section
27 of
the Act and the
technical
feasibility
and economic reasonableness of the
solution,
I
felt
a
reduction
in
the neighborhood
of
30
decibels
is
a
reasonable
goal.
(R.
at
67)
Mr.
Zak
investigated the cost of silencers sufficient
to
accomplish his recommended sound—level reduction.
One estimate
places the purchase price of silencers at $831.20
to $1,057.60
per
fan, depending on the actual size of the fan
(R.
at.
69);
the
record does not reflect the magnitude of any additional possible
costs,
such as installation costs.
Mr.
Zak also noted
that he found
no other practical
noise—
abatement alternative
to installation of silencers,
short of
relocating
the exhaust fans
(R. at 69—71,
82).
Respondents argue that there was
no testimony in
the record
as
to the exact cost of the silencers or whether
the owners of
the
restaurant
could afford
to install silencers.
However, once
Complainant has shown
that there
is an unreasonable interference
caused by the noise,
as is shown here,
the burden
is on
Respondents, as part of their defense,
to introduce evidence that
they cannot afford such silencers,
if
in
fact that is
the case.
(See,
Section
31(c)
of the Act).
Here,
Respondents did not
refute evidence presented by Complainant that technically
practicable
and economically reasonable methods exist
for making
the
necessary
reductions
in
emissions,
nor did they show that
“compliance with
the Board’s regulations would impose an
arbitrary
or
unreasonable
hardship”
(Id.).
98—252
—7—
The Board therefore finds that there
are technically
practicable and economically reasonable means of reducing the
emissions.
Concerning
factor five,
the Board
finds that the economic
benefits accrued by the restaurant and its owners because of
delay in compliance with pollution control requirements were
those benefits of a delay
in expenditure of funds
for
installation of noise abatement devices sufficient to achieve
compliance.
Concerning
factor
six,
the Board
finds that
the record
indicates there has been no subsequent compliance.
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 the sound emissions
during operation of the exhaust fans at The Gables Restaurant are
unreasonable and constitute noise pollution pursuant
to 35 Ill.
Adrn.
Code 900.101 and violate
35 Ill.
Adm. Code 900.102 and
Section 24
of the Act.
Although, as
the Board’s discussion of
the
factors indicates,
the restaurant has social
and economic
value and may
in fact be suitable
to the area
in which it
is
located, these
factors are outweighed by the substantial
interference with the health and general welfare
of the
Brainerds,
and particularly by the apparent ease with which the
noise
emissions
may
be
reduced.
Consequently,
and upon consideration of the
factors set
forth
in Section
33(c)
of the Act,
the Board will order
Respondents
to cease
and desist from violations of the Act and
Board regulations and to install noise abatement devices as
a
means
for Respondents
to maintain continued compliance.
This Opinion constitutes the Board’s findings of fact and
conclusions
of
law
in
this
matter.
ORDER
1.
The Board
finds that Respondents Donna Hagan,
David
Bromaghim,
and Phil Robbins,
d/b/a The Gables
Restaurant,
have violated Section
24
of the
Environmental Protection Act and
35 Ill.
Adm. Code
900.102.
2.
Respondents
shall cease and desist from violations
of
the Act and Board’s regulations,
and
shall
take
immediate steps
to prevent additional violations.
3.
On or before June
27,
1989,
Respondents
shall have
in
functional operation noise abatement devices sufficient
to prevent future violations of the kind alleged by
complainant.
98— 253
—8-
4.
On or before July
11,
1989, Respondents shall
notify the
Board and Complainant
in writing as
to whether
it has
complied with the provisions of paragraphs
2 and
3
of
this Order.
Section 41
of the Environmental Protection Act,
Ill.
Rev.
Stat.
1987 ch.
1111/2 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.
3.
Theodore Meyer dissented.
I,
Dorothy
M.
Gunn, Clerk of
the Illinois Pollution Control
Board,
hereby
certify
that
the
above
Opinion
and
Order
was
adopted
on
the
7~?-
day
of
~~~7’.—t~t
,
1989,
by
a
vote
of
c?~—/
.
Ill
S
P~
ution
Control
Board
98—254