ILLINOIS POLLUTION CONTROL BOARD
December
18,
1986
CITIZENS OF BURBANK and
PEOPLE OF THE STATE
OF ILLINOIS,
ex.
rel.,
RICHARD N.
DALEY,
Complainants,
v.
)
PCB 84—125
CLAIRMONT TRANSFER COMPANY,
)
Respondent.
CAROL HARDING, APPEARED FOR CITIZENS
CF BURBANK;
LYNN WORLEL ATTORNEY-AT-LM~,APPEARED FOR PEOPLE
OF THE STATE OF
ILLINOIS.
OPINION AND ORDER OF
THE BOARD
(by B.
Forcade):
This matter comes before
the Board
on
a August 13,
1984,
enforcement complaint filed by Citizens
of Burbank (“Citizens”)*
against Clairmont Transfer Company (“Clairmont”).
The complaint
alleges violations
of Section
23 and
24
of the Environmental
Protection Act (“Act”)
,
regarding noise pollution and Sections
8
and
9
of the Act, regarding
air pollution stemming from
Clairmont’s trucking terminal.
Ill.
Rev.
Stat.
1985,
ch.
1111/2,
pars.
1001
et seq.
This matter
was set
for
hearing along with another noise
and
air pollution enforcement
case,
PCB 84—124, brought by the
Citizens against Overnite Trucking.
However, counsel
for
Clairmont filed
a letter with the hearing officer
indicating that
Clairmont had filed
a Petition
in Bankruptcy under Chapter
11
of
the Federal Bankruptcy Code and an Order
for Relief was entered
by the U.S.
Bankruptcy Court
for
the Northern Division of the
V~esternDistrict of Michigan on November 30,
1984 (Hearing
Officer Letter
of December
20,
1984).
The Order
for Relief
invokes the automatic stay provision of Section 362
of the
Bankruptcy Code
(11 U.S.C.
Section 362) and, accordingly, stayed
the Citizen’s enforcement suit before the Board.
“Citizens” consists of residents from five
(5) locations near
Clairmont including:
Mr.
& Mrs.
James Harding, Mr.
& Mrs.
Vincent Bavirsha,
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.
74-255
—2—
On March 15, 1985,
the People of the State of Illinois
(“People”), by their
attorney,
Richard
N.
Daley,
State’s Attorney
of Cook County, filed
a complaint against Clairmont and
petitioned
the Board
to intervene
in PCB 84—125.
The petition
was brought pursuant to
the Act which authorizes
the State’s
Attorney
to institute court actions
in the name of People
to
restrain violations of the Act and regulations
thereunder.
Section 362(b) (4)
of the Bankruptcy Code provides
an exception
to
the automatic stay when an action to protect health and welfare
is brought by
a unit of government.
The Board granted People’s
petition to intervene as full parties, thus allowing
the
enforcement action to proceed
(Board Order, April
4,
1985).
Hearing was held
on June 18,
1985.
Respondent Clairinont did not
appear
at hearing and
it was adduced from citizen testimony that
Clairmont was no longer operating
at
the facility
(R.
8,29,35).
The Board, on August
28,
1986,
issued an order requesting
that the parties
file
a report regarding the status of
Clairmont’s bankruptcy proceeding,
whether Clairmont was
presently in operation or would
be
in
the future, and what remedy
the complainants sought against
Clairrnont.
The People responded
on September
26,
1986, that Clairxnont
is not now doing business
anywhere
in Illinois,
that Citizens sought no remedy against
Clairmont but that a new trucking company
is using
the space
formerly occupied by Clairmont
and creating
a nuisance.
Clairmont responded
on October
6,
1986,
that
it
is no longer
operating at the facility and that
it
is in the process of total
liquidation under
the Bankruptcy Code.
On October
24,
1986,
the
People moved
to voluntarily dismiss the complaint.
The People
state
that since
Clairrnont has ceased
to operate
at
the facility
and
all
assets have been sold,
injunctive relief
is no longer
necessary and
that there
are no outstanding issues
or existing
controversies between the parties.
In
Illinois,
a plaintiff,
in
a civil proceeding,
has an
unqualified right
to dismiss
an action without prejudice
up until
hearing
or trial on
the matter unless
a counter
claim has been
pleaded by
a defendant.
110
Ill.
Rev.
Stat.
2—1009(a).
In
Village
of South Elgin
v. Waste Management,
et al.,
64
Ill.
App.
3d
570,
381 N.E.2d 782
(2nd Dist., 1978), the court held that
while
the Civil
Practice Act was not directly applicable
to
proceeding before
an administrative body, the rules guiding the
courts of Illinois do provide the “outer bounds”
of what
an
administrative agency can do regarding motions
for voluntary
dismissal.
Id.
at 782—3.
Under
Illinois
law,
a motion for
voluntary dismissal of
a plaintiff’s suit after
trial
has begun
is addressed
to the discretion of the court and
is reversible
only for abuse of discretion.
Newlin v.
Forseinan,
103 Ill. App.
3d
1038,
432 N.E.2d 319
(1982).
Under
Bauman
v.
Advance Aluminum Casting Corporation,
27
Ill.
App.
2d
178,
169 N.E.2d 382 (1960), once
trial
or hearing
74-256
—3—
has begun, plaintiff cannot dismiss the suit except by consent or
on motion, specifying grounds
for
the dismissal, supported by
affidavit and
then only on terms
to be fixed
by the
court.
Even
if compliance with the Civil
Practice Act is achieved, the
voluntary dismissal by plaintiff
is discretionary with the
trial
court.
In Bauman, the court denied
a motion for voluntary
dismissal after
trial
as
it would constitute
an abandonment of
the proceeding that would
leave the court without the power
to
enter judgment.
The court found this result “untenable.”
69
N.E.2d at
385.
The People’s motion for voluntary dismissal
is denied.
Illinois law provides that after
trial or hearing this type of
motion
is discretionary with the court.
These principles are
applicable
to the Board under Village of South
Elgin.
The matter
before
the Board has proceeded
to hearing, evidence has been
taken
and the record
is closed.
In the instant situation, there
are compelling
reasons
for
the Board
to exercise
its discretion
by denying the motion.
First,
there
are adequate facts
in the
record
to decide this case on the merits;
to grant the motion
at
this stage could
leave the Board without the power
to enter
a
judgment.
As
the court
in Bauman stated, this result
is
untenable.
This
is especially true
in an enforcement action
before the Board
since
it would frustrate
the purposes of the Act
and discourage citizen enforcement
suits.
Second, while the
facts and law of this case certainly limit
the utility of
a Board
finding of violation and
imposition of
a remedy,
there
is still
some good purpose served
by such action.
As the
record shows,
the noise
and air pollution problem experienced by the citizens
is
a recurring problem associated with the
site, as well
as the
actual operational practices of the trucking company.
A Board
Opinion and Order
that contains findings of
fact and findings of
violation could be
used in fashioning
a remedy before the
appropriate zoning authority or
in chancery court.
At a minimum,
a Board Opinion and Order
will document through factual
findings
in an adjudicatory context,
the nature
of the problem associated
with this area and the validity of the Citizens’ complaint.
The facility in question, which was operated by Clairmont,
is a trucking terminal located
at 6767 West 75th Street,
in
Bedford Park.
Corporate headquarters of Clairmont is
in
Escanaba, Michigan.
The facility occupies a two square block
area between 75th Street and 77th Street.
It
is bordered on the
north by prairie
(R.
33).
The repair shop and fueling area are
located
at
the
southern end
of the property, abutting 77th Street
(R. 7—8,
14).
77th Street
is unique
in that
it
is only half as
wide
as an ordinary Street
(R.
10).
The trucking facility abuts
one side of the narrow street and the residences of many of the
Citizens are directly across
the narrow street
(R.
10).
The
precise details of Clairmont’s operation and type of business are
not available
as Clairmont,
although properly served
and
notified, failed
to attend
the hearing
(P.
3).
74-257
—4—
The complainants
in this proceeding are residents from the
area near Clairmont’s
facility.
Witnesses provided testimony
that they lived within
a half—a—block and
a block from the
facility
(P.
8,
14,
21,
28
& 35).
The Citizens are residents of
the City of Burbank, while
the facility
is located
in Bedford
Park
(R.
24).
Testimony presented from the Citizens indicates
that the houses and many of the complaining witnesses themselves
were predecessors to any trucking facility and that the houses
used
to border prairie
(R.
16,
19,
25,
26—27
& 31).
The complaints
in this proceeding allege that Clairinont’s
operations violate statutory provisions respecting
noise
and air
pollution.
These 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,
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.
Ill.
Rev.
Stat.
1985,
ch.
lll~-/2, pars.
1023
and
1024.
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
74-258
—5—
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
Poll ution
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
an activity” as the standard.
The pleadings,
testimony and exhibits of the complainants, regarding
noise, are
founded
in this public nuisance theory.
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
(1st Dist.,
1976).
In that case,
which
involved
the exact
statutory 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
*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.
74-259
—6—
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.
Specifical—
ly,
Ferndale argues that the Pierson testimony
failed
to
provide
dates
and
times
of
noise,
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
quests
in
his
yard
and
failed
to show when
and how often
he
did
not
lounge
or
entertain
quests
in
his
yard.
Other
alleged
testimonial
deficiencies
involve
failure
to
cite
dates
and
times
when
activities
such
as
patio
parties
were
pre-
vented
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
“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.
at
1228—1229.
These statutory, regulatory and judicial standards provide
the guidance by which the Board must evaluate the record
in this
proceeding.
At hearing,
Mr. James Harding
testified:
74-260
—7—
A.
It’s like
living
on
the
expressway,
all
the constant noise
all the
time,
a lot of
pollution all the time, never stops.
ç.
And what type of noise?
A.
Trucks
idling, racing
their motors.
Q.
Have
you
actually
heard
trucks
racing
their motors?
A.
Yes.
Q.
Have you heard trucks racing
their motors
at night?
A.
Yes.
C.
What hours?
A.
Twenty four hours,
all
the time.
(P.
13)
Mr. Vincent Eavirsha testified:
A.
Well,
Clairmont
at
the
time
had
trucks
that
had
a
different
kind
of
a
starter,
I
don’t know what
it did but
it whined when
it started
a
truck,
it would sound like
a
turban
sic
and
I
don’t
care
what
part
of
the day or
what part of the night,
if
you
were
asleep
you
heard
it.
I
did.
And
I’m
about
a
better
than
a
half
a
block away.
(R.
17—18)
Mr.
Kenneth
Myslik
testified:
They have
air
starters and
at night when they
would
start
their
trucks
it’s
a
very
high—
pitched
piercing
sound
that
would
just
penetrate
a house.
Q.
Do they start
their
trucks very often?
A.
Most
of
the
time
they
left
them
running
all
the
time.
C
Is there noise
associated with
the trucks
running?
A.
Yes,
it
is.
C.
Do the
trucks move in the terminal?
74-261
—8—
A.
Yes.
(P.
27)
*
*
*
recently
I
was
in bed
at
night,
it was about
10:30
at
night
and
I heard
them blowing
their
horns
and
one
would
blow
his
horn
and
the
other
one
would
blow
his
horn
and
then
the
first
one
would
blow
his
horn
twice
and
the
other one would blow the horn twice and
it was
like
they
were
playing
a
game
and
it
was
during sleeping hours.
(P.
29)
The People also presented testimony from Robert Roache, the
supervisor of Enforcement
for the Cook County Environmental
Control
Division (“CCECD”).
People
introduced
a number
of
exhibits comprised of citizen noise
and air pollution complaints
received
by the CCECE about Clairmont, as well
as tickets issued
by the CCECD against Clairmont (People’s Exhibits
3 thru 11).
CCECD investigations found
noise of
72—73 decibels taken from
in
front and along residential homes
in
air area where complaints
had been received which violated the
58 decibel limitation
(P.
41—42).
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.
Mr. James Harding described the effect
of the noise
and
air
pollution on his home life:
“Well, with the noise
and air
pollution we have to
keep our windows closed
in the summertime
because
you
can’t
enjoy
nothing
because
all
the
fumes
are
coming
in there
and
at
the dinner
time you can hear the windows
vibrating
from
the noise from the truck”
(P. 13—14).
Mrs.
Marlene
Myslik testified:
C.
Is
there
anytime
that
the
noise
is
particularly
bad?
A.
Yes,
when
you
are
getting
very
tired
and
everything
is
quiet,
you
would
hear
it
more and
I would
hear
it.
(P.
32).
Testimony indicated that while
there were other trucking
firms
operating
in
the
area,
the
noise
from
Clairmont
was
identifiable
and
distinguishable
due
to
the
older
equipment
used
74-262
—9—
by Clairmont,
the
unique high pitched starters used and general
arrangement
arid
operation
of
the terminal
(R.
9,
11,
20—21,
30—
32).
Clairmont
also
pre—existed
other
trucking
firms
in
the
area
(P.
11,
20).
Additionally,
when
Clairmont ceased
to operate at
the facility, witnesses testified to
a noticeable decrease
in
noise
and air pollution
in the general area
(P.
9,
20—21,
29,
34—
35).
Based
on
the
above—cited
evidence,
the
Board
finds
that
noises
emanating
from
Clairmont’s facility, specifically from
vehicle start—up, idling, movement, maintenance
and horns caused
interference with the sleep and normal leisure time activities of
adjacent residents.
Further,
the Board
finds that this inter-
ference was frequent and severe prior
to Clairmont’s ceasing
operations at the facility.
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 char-
acteristics
and
duration
as
to
be
in-
jurious
to
human,
plant,
or
animal
life,
to
health,
or
to
property,
or
to unrea-
sonably
interfere
with
the
enjoyment
of
life or property.
*
*
*
Section
9
No person shall:
a.
Cause
or
threaten
to
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.
Ill.
Rev.
Stat.
1985,
ch.
lll1,~, pars. 1003 and 1009.
74-263
—10—
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 Ill.2d
290,
319 N.E.2á 794
(1974); Mystic
Tape,
Div.
of Borden,
Inc.
v.
Pollution Control Board,
60
Il1.2d 330;
328 N.E.2d
5
(1975);
Processing
& Books v.
Pollution Control Board,
64 Ill.2d
68, 351
N.E.2d 865
(1976).
The hearing
testimony on odor
is
similar
in character
to the
testimony on noise.
Mrs.
Carol Harding described
how the trucks’
idling and moving
in the terminal caused her entire yard
to be
“gassed up.”
The fumes
were:
“Heavy, diesel type fumes.
I mean
its got
to the point where you’re actually eating
with fumes
in
your home at night”
(R.
7).
Mr. Bavirsha testified that:
The
trucks
would
run
twenty—four
hours
a
day
in
the
wintertime,
they
wouldn’t
shut
them
off.
They
continually
ran
and
ran
and
in
a
stagnate
sic
day,
it would
be like
a
fog
in
your
yard,
in
the
whole
neighborhood.
You
could
actually
see
the
fumes
in
the
area
(P.
21).
*
*
*
I
like
birds,
I
have
a
feeder
in
the
yard.
And
ever
since
the
trucking
terminal,
even
going
back
as
far
as
Dorm
another
trucking
terminal
,
the birds
in the
yard slowly
start
disappearing
...
And
with
both
terminals
going,
it was less and less birds
(R. 18).
Mr. Myslik testified
that:
You
could
always
smell
diesel
fumes
in
the
area
in
wintertime,
especially when
there
was
very
little
air
movement,
there
was
a
great
cloud
in
the
area
and
you
can just
smell
the
diesel
fumes
(R.
28).
Based
on the above—cited evidence, the Board
finds that
odors
from Clairmont’s facility, specifically truck start—up,
fueling
and idling, caused interference with
food consumption,
comfort and general leisure time activities of adjacent
residents.
Further, the Board
finds
that this interference was
frequent and severe.
74-264
—11—
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:
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 sources;
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; and
4.
the
technical
practicability
and
economic
reasonableness
of
reducing
or
eliminating
the
emissions,
discharges
or
deposits
resulting
from such 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;
Incinerator
Inc.;
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.
In evaluating
the first Section 33(c)
factor,
the Board
finds that there was frequent and severe
interference with sleep,
food consumption,
and normal leisure activities of adjacent
residents caused by noise
and odor
from Clairmont’s facility.
This interference goes
far beyond
trifling interference,
petty
annoyance
or minor discomfort.
The noise
and odors constituted
a
substantial interference with the enjoyment of life
and property.
74-265
—12—
Concerning
the second factor, the Board
finds that Clairmont
is no longer socially or
economically valuable,
as it has ceased
to operate
at the facility and
is presently in the process of
liquidation.
If the facility had’ been viable and operating at
the present time,
the Board would
find some social
and economic
value of the pollution source.
However, the
social
and economic
value
of a facility such as Clairmont’s
is reduced by the noise
and odor emissions.
Regarding
the third factor, the Board
finds, first, that the
trucking terminal,
as operated by Clairmont, was unsuited
to
the
area
in which
it was located.
The close proximity of residences
to the facility in combination with the equipment and operating
practices of Clairmont created
a severe noise
and odor problem.
Second, that complainants have the clear priority.
It
is
undisputed
in
the record that local
area residents generally, and
several of the complainants
in particular,
lived
in the area
prior
to construction and operation of
the Clairmont facility and
that the facility site was originally open prairie
(P.
16,
19,
25, 26—27
& 31).
Concerning
the final factor, the Board
is unable
to
thoroughly review the technical practicability of reducing air
and
noise emissions, as little
information
is available in the
record.
Clairmont
failed
to appear
at hearing and provide
testimony on the
nature of its operation.
The Board
notes that
there may be technically feasible methods of reducing noise and
air emission from this type of source, such as:
changing over
to
quieter, less polluting equipment; relocating repair
and fueling
sites to areas within
the facility that do not border on
residences; modifying
traffic patterns and operating practices
within
the facility; constructing sound deadening berms and
walls;
and prescribing reasonable hours of operation.
However,
as Clairmont has failed
to respond
or appear
in this matter, no
specific information regarding Clairmont’s operation or ability
to reduce noise
and odor emission
is available
in this record
other than completely ceasing trucking operations.
In such
a
situation,
the Board
is left with a limited choice of remedies.
Regarding the economic reasonableness of reducing emissions, the
Board notes that Clairmont has ceased operations due
to
bankruptcy
and eventual liquidation.
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 Clairmont’s facility were unreasonable and violated 35 Ill.
Adm. Code 900.102 and Section 24
of the Environmental Protection
Act.
Based on the Board
findings of substantial interference
with enjoyment of life and after consideration of the factors
listed
in Section 33(c), the Board
finds the odor emissions
from
Clairmont’s facility were unreasonable and violated 35 Ill.
Adni.
Code 201.141 and Section
9 of the Environmental Protection Act.
74-266
—13—
The Board
is limited by both the law and facts of this case
as
to the remedy it may fashion.
As Clairmont
is
in bankruptcy,
an action
to collect money could
not be maintained under
the
automatic stay.
However, penalties or fines imposed before
the
Bankruptcy petition was filed would not be subject
to the stay or
dischargeable.
Cuasi—injunctive relief
in
the form of a cease
and desist order
is authorized
under
the Act and
is permitted
under the Bankruptcy Code.
At hearing, the People and the
Citizens acknowledged that Clairinont was
no longer operating
at
the site
in question.
The People requested that some form of
administrative cease
and desist order
be issued that would attach
to the land and bind all future owners
(P.
52).
No statutory or
case law citations
for the exercise of this authority were cited
(P.
53).
The Board clearly does not have such authority to
fashion
an
in rem remedy that binds future owners of the
land.
Only Clairmont has been sued and found
in violation of the Act
and regulations.
The Board
is without jurisdiction
to bind
parties not before
it
in this proceeding.
The Board
is aware
of the recurring problem that the
Citizens
face.
The record
in this proceeding and its companion
case Citizens of Burbank
v.
Overnite Trucking
Inc., PCB 84—124,
indicates that every few years
a different trucking company moves
into the same general
facility area and causes
a similar air
and
noise pollution problem.
The Citizen’s efforts
to remedy the
problem through discussion with the facility operator, complaints
to the CCECD, IEPA and Board are frustrated when the old operator
leaves
and
a new operator moves
in
to the site.
The People’s,
September
26, 1986,
status report indicates that
a new trucking
terminal
is operating
at
the old Clairmont site and
is allegedly
creating
a noise
and air nuisance.
The noise and air pollution
problem appears
to be
intrinsic
in
the operation of
a trucking
terminal
and
its proximity
to the Citizens’
residents.
Unfortunately,
the Board
is unable
to fashion
a totally
satisfactory remedy
in these circumstances.
All persons are
prohibited from violating the Act and Board regulations and
are
under
a duty not
to maintain
a nuisance on their property.
However, the nature of
a nuisance action
involves
a case—by—case
determination of
unreasonableness.
In the instant case, the
Board
finds that Clairmont’s operation of the trucking terminal
constitutes
a nuisance
under the Act and regulations.
The Board
notes that the ultimate remedy for the Citizens may be through
some form of zoning change or chancery court remedy that runs
with the real property.
To this end, the Board has made findings
of fact and violation regarding the noise
and air pollution
emissions from the Clairmont facility and has documented the
continuing nature of the problem.
The Board also orders
Clairrnont
to cease
and desist from all trucking operations at
the
Bedford Park facility.
It is these trucking activities that
caused the unreasonable interference with the Citizens’ sleep,
food consumption, normal leisure activities and general
74-267
—14—
welfare.
It
is the Board’s hope that this Opinion and Order may
be of some use
to the People and Citizens
in pursuing
a complete
remedy to the
noise and air pollution problem, before the
appropriate
zoning authority, or court of competent jurisdiction.
This Opinion constitutes
the Board’s findings of fact and
conclusions of law
in this proceeding.
ORDER
1.
The Board
finds that Clairmont Transfer Company has violated
35
Ill.
Adin.
Code Section 900.102 and 201.141, as well as
Sections
24 and
9 of the Environmental Protection Act.
2.
Clairmont Transfer
Company shall cease and desist from all
trucking operations
at the facility located at 6767 West 75th
Street,
in Bedford Park,
Illinois.
IT
IS
SO ORDERED.
Chairman J.D. Dumelle concurred and Board Member
J.
Theodore
Meyer dissented.
I,
Dorothy M.
Gunn, Clerk of the Illinois Pollution Control
Board, hereby cerifY
that the above Opinion and Order
was
adopted
on
the /~day
of
~
,
1986,
by a vote
~
)7
7,
,1
Dorothy
M. G~hn,Clerk
Illinois Pollution Control Board
74-268
