ILLINOIS POLLUTION CONTROL BOARD
February 10,
1983
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY,
Complainant,
v.
)
PCB 81—116
THE VICTORY MEMORIAL HOSPITAL
ASSOCIATION, an Illinois Corporation,
Respondent.
JOSEPH DRAZEK AND DOUGLAS KARP, ASSISTANT ATTORNEYS GENERAL,
APPEARED ON BEHALF OF THE PETITIONER;
THOMAS A. MORRIS, JR., BRYDGES, RISEBOROUGH, FRANK
& MILLER,
APPEARED ON BEHALF OF THE RESPONDENT.
OPINION AND
ORDER
OF THE BOARD
(by J.D. Dumelle):
This matter comes before the Board upon a July 15,
1981
complaint filed by the Illinois Environmental Protection Agency
(Agency)
alleging that the Victory Memorial Hospital Association
(Hospital)
operated its general hospital
facility in such a manner
as to violate Rules 102,
202 and 203 of Chapter
8:
Noise Pollution.
Hearings were held on May 4,
5,
6,
18 and 20,
1982 at which the
parties and some members of the public appeared and testified.
Briefs were filed in lieu of closing arguments.
The Hospital is a not—for—profit corporation
(R.
953—954)
which operates a full-service hospital located at 1324 North
Sheridan Road in Waukegan.
Along the Hospital’s northern proper-
ty line is a powerhouse which
is separated from the main building
and houses the electrical, cooling,
heating, water,
fire protec-
tion and medical gas equipment for the main building
(R. 907).
Associated with this powerhouse are two air—cooling towers re-
ferred to as the east and west towers
(R.12).
The east tower is
located on the roof of the powerhouse and has been in operation
since 1966.
It is about 40 feet from the Hospital’s northern
property line (R.13 and 906).
The west tower is
located 12—13
feet from the northern property line slightly west of the power-
house and was installed in 1978
(R.13 and 14).
Stanley Avenue is an east—west street located approximately
200 feet north of the Hospital’s property line
(R.249,
460 and
602—603).
Along Stanley Avenue and directly north of the Hospital
property is a residential area where most of the citizens
who are affected by the noise and who testified at hearing reside
(R.21).
51-99
—2—
The Agency alleges that the Hospital has emitted noise from
its property which exceeds permissible daytime
(Rule 202) and
nighttime
(Rule
203) noise limitations and which unreasonably
interferes with the enjoyment of life and property of those
residents along Stanley Avenue whose property is adjacent to the
Hospital
(Rule 102).
The cause of the noise is alleged to be the
powerhouse and the two associated air-cooling towers.
The Hospital contends that none of the numerical violations
has been proven because the Agency has based its allegations on
improper standards
(due to improper land use classification),
has incorrectly measured ambient values, has used other improper
measurement techniques and outdated noise results.
Further,
the Hospital contends that a violation of Rule 202 or 203 must
be shown as a prerequisite for enforcement under Rule 102 and
that even if that is not true consideration of Section 33(c)
factors are mandated which would preclude a finding of violation.
The Board
first considers the Hospital’s contention that
the proper classification for the Hospital
under the Standard
Land Use Coding System is Class C under Code 4890
(“Other
Utilities”)
so far as it relates to the noise violations alleged
jfl this action rather than Class A under Code 6513
(“Medical
and other health services”).
The Board rejects this contention.
While not precluding the possibility of contiguous property
under common ownership falling under separate classifications,
such is clearly not the case here.
The function of the powerhouse
and the associated cooling towers
is inextricably tied to the
predominant use of the land (providing medical services) and is
used for no other purpose;
the powerhouse and towers are physically
connected to the hospital by underground tunneling;
and the alter-
native use suggested
(as a utility)
is stretched too far where,
as here, the services provided are used at a single facility.
Finally, the logical extension the Hospital’s reasoning is that
any Class
A land is magically transformed into Class C land
whenever an air conditioner is placed in a window on Class A
property.
Since the Board concludes that the A to
A limitations of
Rules 202 and 203 are applicable to the Hospital, the Board must
next consider whether proper measurement techniques were used
in
establishing violations of those standards.
The Hospital’s major attack is on the Agency’s determination
of the ambient noise conditions.
The Hospital argues that improper
methodology was used and that most ambient measurements were taken
at sites far removed from source measurement sites and in areas
which did not accurately reflect ambient conditions.
The Agency uses GenRad Model 1933 noise meters which
have a rapid response fluctuating needle and no paper readout
(R.299,
303 and 745—756).
The operator disregards peaks and
notes the reading when the needle is steady,
thus deliberately
51-100
disregarding extraneous readings (R,142—146 and 303—304).
The
Hospital contends
that
it is appropriate to include many of the
noise sources which
the
Agency disregards through this technique,
and has attempted
to
establish as much through the testimony of
Mr. Lyle Yerges,
the
Hospital’s noise consultant
(R.657—659).
He testified
that sounds
from traffic,
a “power plant on the
lakefront, plane over flights,
insects,
occasional bursts of
wind and birds~should
be
included in the ambient, but that an
“over flight
or any
sharp unusual level would have been excluded
if it had occurred’~when he was taking a measurement
(R.658),
However,
the Hospital
fails to establish that this is not
in fact what
Kevin Moore,
the person who conducted most of the
relevant surveys~d±d~.
While
Mr.
Moore admitted that a bird
flying overhead making noise may or may not be included, that
he would not
take readings
near an operating air conditioner and
that an audible
airplane
oyerflight would he disregarded as
might an isolated
car passing
by,
he includes such noises when
they are
“a
steady part. of the
ambient”
(R.143—146).
It
is
difficult to
determine how the Agency’s technique
differs from
that of
Mr.
Yerges.
While it may be true that Mr.
Moore
disregarded
somewhat
more
of
the
background
sounds
than
Mr.
Yerges
would have,
that
is
not
the
critical
factr.
As
Mr.
Moore
explained,
while
the
inclusion
of
more
background
sounds
would
result
in a
higher
ambient
reading,
such
a
reacting
would
not
affect
the number
of
apparent
violations
(R.
149).
The
reason is that
the ambient
measurement
is
used
for
comparative
purposes.
Thus,~
the critical
factor
is that the same noises
be disregarded
when taking the
source
measurements
as
are
di~—
regarded when
laking the
ambient
measurements.
The record
gives no indication
mat
noises were included when source measure-
ments
were
taken
(other ti~anthose
emanating
from
the
source)
which
were
not
rociaded in
determining
the
ambient.
The Hospical
alec
argues that the ambient measurements
should
have been taken
at the same
sites as the source measurements because
measurements can
be affected
by topography and location.
Clearly,
measurements
taken at the
same sites would be preferable,
as
Mr.
Moore admitted
(R.
141).
However, he further pointed out
that this is
not true when
the source cannot be turned off
(R.
141),
and
that
because the Hospital
is “a big place and they
were pretty busy~he decided not to contact the Hospital
to turn
off the source
in this
case,
(R.
142—143).
Rather, except for
two cases,
ambient readings were taken at other locations.
To establish
that this
resulted in improper noise survey
results,
the Hospital points out that most of the ambient measure-
ments were taken in
the
front yard of the De Rose residence such
that the home
was between
the measurement site and the Hospital
(Agency sites
4
and
5,
Ex.
C-22).
The Hospital contends that such
sites
fail to
take into account
the “funneling effect” of the
ravine which
runs west
from Sheridan Road between the northern
boundary of the
Hosp:Ltal~s
property and the residences along
51-101
—4—
Stanley Avenue and that they, therefore,
fail to properly reflect
contributing effects of traffic volume and noise.
The support for these propositions is mostly theoretical.
Major Hearn,
Jr., Director of Agency field operations, did testify
that the ravine could act as a “funnel of sound...up toward Mrs.
De Rose’s lawn”
(R. 887), but gave no indication of how much an
effect it might have.
In
fact, the only witness to even speculate
on the magnitude of the effect was the Hospital’s own witness,
Mr. Yerges, who testified that the ravine would have “no attrib-
utable effect”
(H.
738 as corrected by the Agency).
Further,
Mr.
Hearn testified that he had no reason to believe that ambient
measurements
taken
ic1 the De Rose’s front yard would differ
significantly from those taken in the backyard
(R.
871).
In its closing brief the Hospital attempts to show that
the ambient levels used for most of the noise surveys are lower
than the ambient levels measured at the same site as the source
readings
(Resp.
Brief,
p.
46).
It presents a table showing the
ambient levels used for all daytime noise surveys where the
ambient was measured at
a site other than the site where the
source was measured and compares them to the ambient measure-
ments taken on June
12, 1979 where ambient and source measure-
ments were taken at the same site.
The table shows that in the
500 to 8000 Hertz octave bands 26 of
30 ambient measurements
taken at alternate sites were lower than the June 12,
1979
ambient levels.
If the June
12 ambient measurements were used
for purposes
of
correction the source levels when corrected
for the ambient would be lower.
Further, the table
shows that
18 of the
19
apparent
violations were in those octave bands.
Thus, given
that
Mr.
ilearn testified that vehicle traffic noise
is mostly in these same bands, the Hospital concludes that the
ambient measurements taken at alternate sites did not accurately
reflect traffic noise which would have affected source measure-
ments.
However, the Hospital fails to note that a second survey
taken on April
25,
1980 also measured the ambient levels at the
same site where the source measurements were taken.
If those
ambient levels were used for comparison with the other surveys
each ambient measurement in the 500 to 8000 Hertz octave bands
taken at alternate sites would be higher
(or equal to)
the April
25,
1980 levels, thereby increasing the source levels when corrected
for ambient,
Thus,
all apparent violations would appear at least
as large as those presented by the Agency.
Furthermore,
if the ambient measurements of June 12,
1979
and April
25,
1980 are averaged and compared with the average
ambient values at alternate sites for the 500,
1000,
2000 and
4000 Hertz octave bands (which include all but one of the apparent
violations),
the largest discrepancy is about
1 dB. Alternate site
measurements are 1,17 dB lower at 500 Hz.,
0.67 dB higher at
1000 Hz and 0,5 dB higher at 2000 and 4000 Hz.
51-102
—5—
Based on the data and the testimony presented at hearing,
the Board finds that the use of alternate sites for measure-
ment of the ambient was appropriate in this case although greater
effort to secure assistance from the Hospital to allow ambient
measurements to be taken at the same sites as the source measure-
ments would have been appropriate.
It is preferable to do so
to avoid arguments such as those presented by the Hospital.
The Hospital also argues that reflective surfaces and nearby
small objects were not taken into consideration when source
measurements were taken and that since ambient measurements were
generally taken at other sites,
doubt is cast upon the source
measurements.
The Hospital points out that sound measurements
should not be taken within 25 feet of reflective surfaces nor
within
5 feet of small objects
(Resp.
Ex.
2).
However, the
Hospital
fails to present any evidence that measurements were
taken in violation of these guidelines.
Measurements taken near reflective surfaces should be correct-
ed downward
(R.
131-140) and
Mr.
Moore
did
testify
that there were
some such objects
in the area of Site No.
6.
However, he also
testified that he “didn’t feel they would have any effect on the
measurements”
(H.
130).
While Mr.
Yerges testified in general
that there were objects
in the area could affect the source
measurements,
he did not attempt to quantify the effect
(R.
713,
714 and 739).
Given that nothing more than mere speculation was
offered in this regard,
the Board
finds that neither reflective
surfaces nor small objects in the area of source measurement have
been shown to affect the Agency’s data.
The next attack on the Agency’s data is that noise testing
procedures have not been revised “to reflect current engineering
judgement and advances in noise measurement techniques” as required
by Rule 103.
The Hospital contends that graphic recorders,
as
used by Mr.
Yerges, are more consistent with current engineering
judgment
(H. 627~628and 636-637) and that A—Weighted readings
are preferred to octave band analysis
(R.
628).
However, as
the Agency points out, both methodologies were in existence and
considered when the noise rules were promulgated, and Mr. Yerges
acutally presented testimony against the proposed rules
at that
time
CR.
719—720),
Thus, the Board has fully considered this
methodological question before and finds that nothing
in this
record warrants a reversal of its previous determination.
The Hospital’s final attack on the Agency data
is that most
of the noise surveys were made prior to the Hospital’s modifi—
cations to reduce noise
levels, the last of which was completed
prior to the 1981 cooling season.
However, after the fact attempts
at compliance do not constitute a defense
to an enforcement action
although they may be considered in mitigation of any penalty
assessed.
Therefore,
the Board finds that the Agency’s noise
survey results are supported by the weight of the evidence.
51-103
—6—
The following table was complied from these surveys
(Comp.
Ex’s,
8, 11~~15
and 23—25) as corrected for abmient according
to the graph contained in Complainant’s exhibit
9.
Site No,
1
is 33 feet south of the Southwest corner of the De Rose residence.
Site No.
6 is
30 feet north of the Hospital’s north property line
fence in the backyard of the Machnich residence.
Site No.
7
is 17 feet west and 70 feet south of the southwest corner of the
garage in the backyard of the Bartels residence,
and Site No.
9
is 37 feet west of the southwest corner of the residence at 1400
Sheridan,
Octave band exceedances are expressed in dB’s above
the applicable A to A standards (Rule
202 or 203) and are rounded
to the nearest half decibel,
The asterisk indicates those surveys
to which the nightime levels are applicable
(Rule 203),
DATE
5/9/79
TIME
SURVEY
BEGAN
11 A.M.
SITE
NO.
I
0CTAV~
BAND EXCEEDENCES
(IN dB)
31.5
63
125
250
500
1000
2000
4000
8000
—
--
--
2.5
1
0.5
2
7/12/79
11A.M.
I
—
—
—
--
I_____
1
--
--
-~-
--
—
——
~L~QLZ~
12P.M.
I
—
—
I
~
1.5
2~5
9
3.5
11
2
7
3/22/80
1OP.M,*
I
—
—
2
4
11
8/18/80
1P.M.
I
—
i
i
:~
2
7.5
12
12
I
~-
-
--
--
--
1
8/28/80
NOON
~—
—
--
--
3
2.5
3
2
--
6
—
——
1
1
1 .5
—
5.5
9.5
7 .5
7
—
—-
—-
—-
1
2.5
1
—-
-
9
—
--
--
2
3~
4.5
1
1.5
8/29/80
6A.M.*
I
‘—
——
1.5
~3.5
11
10.5
12
18.5
14.5
6
7
—
—
——
--
1.5
1.5
12.5
13
--
6.5
7.5
7
13
8
20.5
16.5
16.5
12.5
9
I
—
f
—
j
1.5
5
8.5
9
10
18.5
14.5
1
2.5
~/24/81
3P.M.
I
~-
——
——
——
1
4
4.5
—
0.51.5
0.5
3.5
6.5
6.5_
12.5
10
—
7
—
--
——
-—
——
1.5
3
3
—-
1
—
—
--
0.5
1.5
4.5
5
5
3
8/26/81
10 P.M.*
ii
16
—
6
1.5
5
6
10.5
11
10.5
13
12
,
20.5
14.5
51- 104
Despite
this
data
the
Hospital
contends
that
Rule
203
violations
cannot
be
found
against
it
in
that
the
July
10,
1980
Notice
of
Enforcement
made
no
reference
to
nighttime
violations
and
because
Site
No,
6
was
an
improper
site
for
nighttime measure-
ments.
At
the
time
the
Notice
of Enforcement was served, there
was
no
requirement
that
such
notice
be
given
prior
to
the
filing
of
the
complaint.
Since
the
complaint
in
this
matter
fully
informed
the
Hospital
of
allegations
of
violations
of
nighttime
standards,
this
argument
is
without
merit.
The
argument
that
Site
No,
6
was
improperly
used
to
establish
a
nighttime
violation
is
also
without
merit.
A
person
has
a
right
to
the
enjoyment
of
the
full
extent
of
his
property
at
anytime
of
day.
Further,
the testimony showed that Site No.
6
is a
lawn
area used by the Machnichs,
that the grass was mown,
that a
pathway led to the location and that a barbecue grill was nearby
CR.
127—128).
This testimony established that the area could
be used during nighttime hours, but even
if that were not the case,
Rule 203 applies to property line emissions, not to the enjoyment of
property which is more properly considered with respect to Rule
102 violations and penalties.
Therefore,
the Board finds that the Hospital violated Rules
202 and 203 at the times and places indicated in the table above.
The Board next considers whether a violation of Rule 102
has been proven.
The Hospital contends that Section 24 of the
Environmental Protection Act
(Act) and Rule 102 merely require
compliance with Board’s emission standards and that Rules 202
and 203 simply define what constitutes a reasonably sound
emission level.
The Hospital than concludes that absent a finding
of violation under Rules 202 or 203,
no violation of Rule 102
may be found.
Since the Board has found violations of Rules
202 and 203,
this argument loses its vitality.
However, the Board notes
that “Section 24 and Rule 102, when read in conjunction with Section
33(c), contain sufficient standards to afford.. .due process of
law.”
Ferndale Heights
v.
IPCB,
358 N.E.2d 1228
(1976).
See
also Illinois Coal Operators Assoc.
v.
IPCB,
59 Ill.2d 305,
319 N.E.2d 782
(1974) and Shell
Oil Co.v.
IPCB,
37 Ill,App.3d 264,
364 N.E.2d 212 (1976).
Thus,
a Rule 102 violation can be found
regardless of compliance or non—compliance with numerical stan-
dards.
1
The Hospital
is correct,
however, that the Board must consider
the Section 33(c)
criteria before a violation of Rule 102 can
be found.
The Hospital contends that an analysis of those
1.
To the extent that this
is in conflict with Ferndale
Heights
v,
IPCB,
358 N.E.2d 1228
(1976), that case is overruled.
51-105
—8—
criteria establish that the record supports the reasonableness of
its position.
The Board disagrees.
Several
citizens
from
the
residential
area
north
of
the
Hos-
pital
testfied
concerning
the
‘character
and
degree
of
injury
to,
or
interference
with
the
protection
of
the
health,
general
welfare
and
physical
property
of
the
people’ Section
33(c)(1).
Mrs.
De
Rose
lives
directly
north
of
the
Hospital
and
is
affected
by
noise
from
both
the
east
and
west
towers
(R.
182
and
Comp.
Thc
22).
She
testified
that
she
can
hear
a
noise
that
‘sounds
like
you
are
passing
an
open
factory
door’
from
her
second
floor
bedrooms,
the
back
porch,
the
kitchen
and
her
entire
backyard
(R.
189).
The
noise
has
made
her
irritable
and
nervous,
has
affected
her
sleep and has
made
it difficult to watch television (R. 190).
She also testified that she can no longer sit and read on her
back
porch
or
in
her
backyard,
nor
does
she
any longer do art
work
on
the
patio
or
have
picnics in the backyard as she used to
(H.
191).
Mr.
Machnich
lives
directly
north
of
the
west
tower
and
can
hear a fairly constant rumbling noise from the east tower, and
from the west tower he hears noises which sound like ‘gushing water’
or ‘air going through water’ as well as a ‘loud pop
and
a whining
noise
that
occurs
every time that it kicks from one speed to
another
speed’
(H.
212,
218
and
Compl.
Ex.
22).
He
can
hear
these
noises
frdm
all
parts
of
his
property
and
the
noise
has
caused
him
to
lose
the
natural
cooling
effect
of
the
design
of
his
house
along
the
ravine
because
he
has
been
unable
to
keep
his
windows
open
(R.
219).
He
has
found
that
the
noises
also
inter-
fere
with
his
sleep,
conversation
and
television
watching
and
cause
him
to
be
unable
to
entertain
colleagues
and clients
on
his
property
(R.
219—223).
Mr.
Stiles,
who
also
lives
north
of
the
Hospital,
but
between
the
two
towers,
complained
of
a
‘continuous
dull
roar’
and
the
‘more
annoying
noise’
associated
with
the
cycling
of
the
west
tower
(237—238 and
Compl. Ex.
22).
The noise has
awakened
him
from
sleep
on
a
number
of
occasions,
makes
him
irritable
and
has
deprived
the
Stiles
of
full
use
and
enjoyment
of
their
backyard.
(R.
240).
The
Cullens
and
the
Bartels
experienced
similar
problems
from
noises
described
as
‘a
continuous
roar’
along
with
‘winding
up
noise’
that
‘starts
like
a
skyrocket’
and a
noise
‘like
a
rushing sound, running water, a droning sound’
(H. 462—463
and
599).
Their
sleep
has
also
been
disturbed
and
the
backyards
are
used
less
because of the
noise
(R. 463 or 598—599).
All the nearby
residents agree that the noise emitted from
the hospital is irritating to them and interferes with their
enjoyment
of life and property, especially the cycling noises
which occur when
the
tower
fans
shift
between
high
and
low
speeds.
No
rebuttal
testimony
was
presented.
On
the
basis
of
this
testi-
mony
the
Board
finds
that
noises
emanating
from
the
hospital
have
caused
a
substantial
interference
with
the
lives
and
enjoyment
of
property
of
residents
in
the
area
north
of
the
Hospital.
51-106
The Hosp~ti contends thaL ~e
r3oard should
also
consider
the
positive effe~t~in~he jen~r~health and welfare of those
receiving care a~~
~osuital.
~a~ever,
such factors are
more
properly conside ed
~ide~Sect.
~
i3(c)(2) which goes to the
“social and cc non
~aU~
ot the p l’ution source~”
The Board
~
~
qiesti~ c~e c~cialand
economic value
of
air—condithr
c eip~~entth~ngused
in conjunction
with
a
hospital such t~aLtie HospiI~ cm
p~ovidestate~of~the—art
medical care
(R
)~
91i)~
The Ho~p~talcontends that this benefit
to
15,000
pati~i:~~
thT year shu~c
th
nalanced against the
detri-
ment
to the six fa~i~
who l~
ncick
of the Hospital
and are
affected by the noise,
Such a
~.cnmakes sense only if
it
is impossible to pro~r~ie airconaitioting and meet the noise
regulations simulte~eisly~It
:~wever,the Hospital can
reasonably operaLe
in cor~plicrnce a
nout reducing the
quality
of
patient
care,
no ba ai’lng need be cone
Therefore,
a
determination
of
this
criter~ais dependent upo. the determination of whether
compliance
with the regulations
is ~‘.echnically
practicable
and
economically
reasonable whicn the
3c’ard must
consider
under
Section
33(c)(4),
The
Agency contends that several methods of
notse
abatement
are technologically practicable
~
economically reisonable for
the Hospital
to pursue:
relocatior
of the west
tower,
a sound
absorptive
barrier around the tower, additional
screening on the
east
tower,
keepi~igthe doors and
ludows of the
powerhouse
closed,
variable freaue.~ymotor
~
alternatively,
a
venti—
lated box lines wi
h
a~oustica
:crial over the top of the tower
to reduce
eye
ij
~
(P
..s.
~33, 404,
412,
420,
427,
440,
510, 568th’~4aid hesp. Ix~
~nd 8),
The Hospital contends
that
the benefit”
~.
the profosee ~r
ective
actions have not
been demonetr~ ~
~h
~
‘etyl
t
~‘
~s
of these corrective
measures,
It de~ r
~,
howevei
L~~5ally contest the technical
practicabthity th
I
‘tmon
In determini~gr~h.~.t’~er
a ~a t~ci~araction
is
economically
reasonable, the dard must cons~dc:the ability of the
offender
to
pay,
the degree of hare cansed ny non—compliance
and
the
cost
of compliance~
ThE. Pospiral does
nc-t contend
that
it is unable
to pay for corrective actions,
Rather,
it argues that the injury
caused by non—corrpliance is slight shile the cost of compliance
is
high~
Fred Abdula, 1ie ien~ ot
dii
~,onwhich is engaged
in the
business
of insbaJ~ng air conditior~ngequipment,
testified
that
the relocation of the west coo, ing tower
to place it
as far away
from surrounding re~iaentialproperties as possible would cost
$231,000 (R~
403~4O8and Resp.
Ex
8,
Mr~
Hearn,
however,
testified that tie west tower would not have to be moved that far,
that
if
it were moved to the south side of the powerhouse
(such
that
the
powerhouse would act as
a
ba~rier) and if
additional
screening
were added to the east tower and doors and windows
of the powerhouse were kept ciosed,
the Hospital could meet
—10—
daytime standards and come very close to meeting nighttime
standards
(R.
293-295).
The cost of such a relocation would be
about $153,000
(R. 413—418).
Mr. Joseph DeCono,
a general contractor, testified that a
wooden barrier could be erected for $10,290
(R.
440).
Mr.
Duane
Thacker, a representative from the manufacturer, testified that
such a barrier could be placed ten feet from the tower without
any adverse effects
CR. 510).
Mr. Hearn testified that the
erection of such a barrier along with additional screening and
keeping the doors and windows of the powerhouse closed would
also result in daytime compliance and near compliance at night.
(R.
295).
The Hospital contends that the cost figures for both re-
location of the tower and construction of a barrier are too low.
The $153,000 figure is argued to be based on overly simplified
construction assumptions and does not include overhead and
profits
CR.
428—431).
With respect to the cost of a barrier,
the Hospital presented testimony that the figure given is for
an undersized barrier and does not include the additional
costs
of permitting, painting, relocation of electrical highlines and
design responsibilities
CR.
443 and Resp.
Ex.
9).
The Hospital
argues that the actual cost would be at least $20,917
(R.
446—
450).
The Hospital further argues that a question remains as to
the stability of the wall,
but the only testimony in this regard
was a general reference by Mr. Wasson, the President of the
Hospital and a non—expert with respect to construction, that
he would have “concern”
as to whether a barrier “would stand
the weather”
(R.
953).
However,
Mr. DeCono did not indicate
any technical problem.
The question of burden of proof in this proceeding as it
regards the Section 33(c)
factors has been briefed by the parties:
both argue that the other has failed to meet his burden of proof
concerning technological practicabliity and economic reasonable-
ness of reducing noise emissions.
That the parties would dis-
agree as to who has this burden is not surprising since
the two
leading decisions regarding this issue appear directly contra-
dictory.
In Processing and Books
v.
IPCB,
64 Ill.2d 68,
351 N.E.2d,
865
(1976) the Court held that in prosecuting an odor case,
the Agency did not have the burden of proving the unreasonableness
of respondents’
conduct in terms of the four Section 33(c)
criteria and that the use of the term “unreasonably” in the
definition of air pollution was simply intended to introduce
into the statute something of the objective quality of the
common law”
(351 N.E.2d 869).
In Wells Manufacturing Com~
v.
IPCB,
et al.,
73 Ill.2d 226,
22 Ill.Dec.
672,
383 ~iT~.2d148
(1978), however, the Court reversed the Board
(over a vigorous
dissent) on the basis that “the Agency failed to establish the
unreasonableness of those odors” as required by the Act (383
N.E.2d 153).
51-108
—11—
Those cases are distinguishable
from this one and as
a matter
of fact as well as policy, they should not be applied here.
On
the facts, both court cases deal with odor nuisances for which
there are no numerical standards against which to measure the
unreasonableness of the odor.
Violations of numerical noise
standards have been found here.
As a matter of policy if Wells
were to be followed,
“a recalcitrant polluter could wait until
an
(enforcement
action is brought and thereby place the burden
upon the Agency to prove that compliance with the regulation is
reasonable...while,..a
responsible party who seeks a variance...
bears
the burden of showing that compliance
is both arbitrary
and unreasonabe”
(Camp.
Reply Br.
19).
In other words such a
construction of the Act could make it advantageous for a polluter
who has difficulty reaching compliance not to seek a variance.
Finally, when the Supreme Court most recently considered the
question of the burden of proof regarding the Section
33(c)
criteria in Slager
v.
IPCB,
96 Ill.App.3d 332,
421 N.E.2d 292
(1981), the Court cited Processing and Books rather than Wells
in
holding that the burden rested on the respondent,
rather than
the Agency,
to introduce evidence on each of these factors.
Thus, the Board concludes that the burden was on the Hospital
to show that compliance is not technologically practicable and
economically reasonable, and that the Hospital has failed to make
that showing.
Further, even
if
that burden were on the Agency,
the manifest weight of the evidence indicates that technologically
practicable and economically reasonable alternatives exist
for
reducing emissions.
The injury detailed in the discussion of
Section 33(c)(1),
above, clearly indicates more than a trifling
inconvenience or petty annoyance.
Not only has this been shown
by the numerical violations which indicate substantial exceedances,
especially at night, but through the considerable testimony of
the nearby residents that the cycling of the west tower is even
more annoying than the “usual” sounds which formed the sole
basis of the numerical violations.
This has been allowed to
continue despite the more than adequate funds available to the
Hospital to take additional corrective actions and the availa-
bility of several methods of reducing noise.
Section 33(c)(3) of the Act concerns the suitability of
the location of the pollution source.
In this regard the Board
finds that although the Hospital was constructed slightly prior
to the residential development of the area
(R.
262,
897 and
902),
the air conditioning equipment was not added until
1966
(R.
906), decades after residential development, and the west
tower was not built until
1978
(R.
904—904 and
909).
Because of
that,
the Hospital cannot prevail in its argument that it has
priority of location in that the construction of the noise
sources at issue here was long after the residential nature of
the properties north of the Hospital had been established.
(See
Wells,
supra,
383 N.E.2d 152).
While the Hospital argues that its cooling needs could not
have been met without the west cooling tower
CR.
795 and
910),
51-109
—12—
the placement of that tower
only
10
to
15
feet from residential
property, especially
after
noise complaints had been received
by the Hospital since 1976 due to
the
powerhouse
and
the
east
tower,
is particularly inappropriate.
The Hospital also,
in
effect,
argues that there
was
no
other
place to put the west
tower because of a number of “physical
and
economic
impediments”
(Resp.
Br,
72),
However, the
Hospital
has
only
succeeded
in
proving that it would have been less convenient and more expen-
sive to place the tower somewhere
else.
In sum, noise
from the Hospital has caused substantial
interference
with the lives
and the enjoyment of property of all
the families
living
immediately north of the Hospital.
While the
social and economic value of the Hospital
is unquestioned, that
value is reduced when the Hospital is operated in such a manner
as to cause a
nuisance,
The placement of a noisy cooling tower
so close to the property of complaining neighbors is particularly
inappropriate.
However, economically reasonable and technologically
practicable methods of reducing the noise emissions exist.
The Board finds that
the
Hospital has violated Rules 102,
202 and 203 of Chapter
8:
Noise
Pollution.
PENALTY
In determining a penalty the Board must consider the same
Section 33(c)
factors as are discussed above.
In addition, the
Board must consider any other aggravating or mitigating
factors,
The
Agency
recommends that the Board order the Hospital to
cease and desist and to pay a penalty of not less than $6,000.
That recommendation is based on the degree of injury and the
Hospital’s slow and
ineffective
response in abating the violations.
On the other hand, the Hospital contends that it has acted reason-
ably and responsibly in abating the problem and that “its un-
willingness
to voluntarily proceed further is neither criminal
nor negligent”
(Resp.
Br.
91).
The Board notes, however, that no
crimes have been alleged and that negligence is not an element
which need be proven to establish any violations at issue here.
The Hospital’s responsiveness,
on the other hand,
is clearly
material to the imposition of a penalty.
As noted
earlier,
the Hospital
first became aware of a noise
problem associated with the east cooling tower in 1976 and gave
assurances that the problem would be rectified
(R.
17 and 23).
Yet, prior to completion of any remedial measures,
the Hospital
built and began
operation
of a second tower in June of 1978 which
it placed in close proximity to the first
CR. 39).
Noise emissions
were, clearly, a
consideration
in the selection of an oversized
tower and cost the Hospital more than a small, noisier tower would
have, although the amount is not given
(R.
480—481).
Actions
were also taken to keep doors and windows of the powerhouse closed
and to reduce the cycling problem.
These actions have been
51-110
—13—
somewhat
effective
(R,
189,466 and 469),
The
Hospital
did,
belatedly,
have
gear~-reducersinstalled in the east tower in
1979
at
a
cost
of
$12,975
(B.
26 and Resp.
Ex.
29) and in early 1980 had an air
inlet
attenuator installed
on
the
north
face
of
the
west
tower
at
no
cost
to the Hospital
(R.
41-44).
Upon learning that apparent
violations
persisted,
the
Hospital
retained
Mr.
Yerges in June of
1980
as
a
noise
consultant,
more
than a year after Mr.
Hearn had recommended that such a consultant
be hired
(R.
24~26,
51,
334 and
Comp.
Exs.
12—13),
He
suggested
that
the west tower be run at low speed and
the
Hospital
insists
that
a
program was implemented
to
assure
low
speed
operation
of
the
east
cooling tower fans
(R.
759—760).
However,
testimony
indicates
that high speed
operation
is
necessary
on
hot,
humid
days
and
that Hospital personnel
sometimes
operate
the
towers
at
high
speed
despite directives
to
the
contrary
CR.
45—46
and
758—761).
Nothing
further has been done despite
the
fact
that
violations
have
continued and both the Agency’s
and
the
Hospital’s
experts
agree
that further modifications could be made.
Considering the length of time that has passed since the
Hospital
first became aware of a
noise
problem,
little
has
been
done to remedy it.
Response has been slow and largely ineffective.
The
Hospital
appears to have
adopted
a
philosophy
that
if
it
keeps
talking
and
studying, perhaps the problem will go away.
Hospital expenditures have been minimal and the Hospital’s attitude
appears
to
be that it
is
enough
to
press
the
manufacturer
of
the
the
equipment
to fix the
problem.
However,
the
noise
source
is
the
Hospital
and
it
is the Hospital’s responsibility to correct the
problem.
It was not “reasonable and proper
for the Hospital to
rely
on
the parties which were
responsible
for
the
equipment
and
contract
performance”
(Resp.
Br.
90)
until
construction
program
completion
in
1981 when the west cooling tower operation resulted
in
noise
violations upon going into
service
in
1978
(R.
904
and
1013).
If there was a failure
to
perform
the
contract,
that
is
a
separate
issue between the
Hospital
and
the
manufacturer
that
has
little
bearing on the
Hospital’s
responsibility
to
its
neigh-
bors.
Such
dilatory and ineffective actions
are
only
encouraged
if
no
penalty
is assessed when enforcement actions are finally
taken.
Therefore,
a penalty is appropriate to encourage compliance
with
the
act.
While the injury caused has not been
great
in
magnitude,
it has been substantial and it increases with each day
that violations are allowed
to
continue.
The
Board
finds
that
a
penalty
of
$2,500 is appropriate.
Further,
since the Hospital
is “unwilling to voluntarily
proceed
further”
and
since
the
violations
continue, the
Board
will
order
the
Hospital
to
cease
and
desist,
making
further
actions
involuntary.
The
Board
will
not,
however, order any particular actions since a range of
options
appear available.
This Opinion constitutes the Board’s
findings
of
fact
and
conclusions of law in this matter.
51-111
—14—
ORDER
1.
Victory Memorial
Hospital
has violated Rules
102,
202 and
203
of Chapter
8:
Noise Pollution.
2.
The Hospital shall cease and desist from such vio—
lationswithin four
months
from
the
date
of
this
Order.
3.
Within 45 days of
the
date of this Order, the Hos-
pital
shall, by
certified
check or money order payable
to the State of
Illinois,
pay a penalty of $2,500 which
is to he sent to:
Illinois Environmental Protection Agency
Fiscal Services Division
2200
Churchill
Road
Springfield,
IL
62706
IT IS SO ORDERED.
I, Christan L~Moffett, Clerk of the Illinois Pollution
Control Board,
do hereby cer~ifythat th~above Opinion and
Order was adopt~don the!~
day of~~~__,
1983
by
a
vote
o
f~C~____
___
Illinois Polluti
Control
Board
51-112

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