ILLINOIS POLLUTION CONTROL BOARD
October
5,
1982
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY,
Complainant,
v.
)
PCB 81—143
RONALD WHEELER AND ROBERT WHEELER,
individually, and doing business as
WHEELER GARAGE AND COAL HANDLING
OPERATION,
Respondents.
3LEI’TDOLYN W. KLINGLER, ROBERT MUELLER, ASSISTANT ATTORNEY GENERALS,
FRANCIS GEHRT, TECHNICAL ADVISOR, APPEARED ON BEHALF OF COMPLAINANT.
MARK
D.
HOCKMAN, LEITER,
LEITER & SAHN, APPEARED ON BEHALF OP
RESPONDENTS.
OPINION AND ORDER OF THE BOARD
(by
I.
G. Goodman):
This matter comes before the Board on a September
14,
1981
Complaint brought by the Illinois Environmental Protection Agency
(Agency).
The Complaint,
as amended on December
17,
1981, alleges
that the Respondents, Ronald Wheeler and Robert Wheeler III,
individually and as a partnership, operated the Wheeler Garage
and Coal Handling Operation
in violation of the air and noise
provision of the Illinois Environmental Protection Act (Act)
and Chapter 8:
Noise Pollution of the Board’s
Rules and Regula-
tions.
Specifically, the Complaint alleges that the Respondents
caused or allowed emissions of coal dust into the environment
sufficient to injure the health and property and enjoyment of the
same by persons
in the affected area,
in violation of Section
,(a)
of the Act.
It further alleges
that the Respondents violated
the noise prohibitions
found in Section
24 of the Act and Rule
102 of Chapter
8,
and the noise emission limitations contained
in Rule 202 of Chapter
8.
Hearings were held on March
9 and 10,
1982.
At hearing
on
March
9,
the Agency amended
its Complaint.
Respondents were no
longer alleged
to have been acting
as a partnership and the charge
that Respondents violated Rule 202’s noise emission limitations
on October 21,
1980 was deleted.
At hearing on March
9,
1982,
the parties decided to negotiate a stipulated settlement.
The
hearing was adjourned with the understanding that the next day’s
hearing would be for the purposes of making public the terms of
49-13
2
the Proposed Settlement and admitting testimony from individuals
affected by the alleged noise and air violations.
At the March
10,
1982 hearing, the Proposed Settlement
was summarized
for the
record and audience.
Testimony was given by numerous citizens
against and on behalf of the Respondents.
The Statement of Facts
and Proposed Settlement was filed with the Board on April
26,
1982.
That same day, five motions were filed by the Respondents, along
with a Stipulation signed by both parties
that these motions would
he withdrawn upon the Board’s acceptance of
the Proposed Settle-
ment.
On June
10,
1982 the Board
found the terms of the Proposed
Settlement generally acceptable, but questioned whether the
stipu-
lated penalty could be deposited in the Environmental Protection
Trust Fund established by P.A.
81—951.
The Proposed Settlement
was therefore rejected and returned for further action.
On July
15,
1982 the Agency filed a Motion for Reconsideration which
addressed the question raised by the Board.
Reconsideration was
granted on August
18,
1982.
The Statement
of Facts now
before the Board contains con—
Elicting averments by
the parties, which were substantiated by
the testimony offered at
the March
10
hearing.
Since resolution
of these conflicts would necessitate a lengthy and perhaps futile
hearing,
the Board will consider the Proposed Settlement.
Respondent Robert Wheeler III owns and operates a coal
storage and distribution business at 1675 East Walnut Street,
Canton,
Illinois.
Surrounding this business are residential
homes on South 17th Street,
a trailer park, and crop—producing
fields.
Employing approximately 18 to 20 full—time people,
this
facility’s Operations include unloading, moving and reloading
coal with a front end—loader.
In the Statement of Facts, the
Agency alleges that these activities occur on any day of the week
and at any time,
including after midnight until
4:00 a.m.
The
noise violations attributed to the equipment operating are sup-
ported by sound readings taken by Agency personnel on Wednesday,
May
20,
1980 and Sunday, December
7,
1980 (Exhibits 8 and D of
the Proposed Settlement).
These readings indicate that the sound
emitted from Respondents’
facility to the adjacent residential
property, that is from Class
C
Land to receiving Class
A Land,
exceeds the daytime limits set out in Rule 202 of Chapter 8.
In
support of the alleged 9(a) violation,
the Agency submitted
photographs it claimed evidenced coal dust being generated by
Respondents’ activities and then travelling and settling on the
homes and property adjacent to the facility
(Exhibits G and H
of the Proposed Settlement).
On the other hand, the Respondents
state that Robert Wheeler
III has exclusive control of the business and Ronald Wheeler has
never owned, operated or been authorized to operate the facility.
Robert Wheeler III further contends that he does not operate the
facility before 7:00 a.m. or after
10:00 p.m. and that week—end
operation is essential to the business.
Respondent Wheeler III
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3
had independent noise tests conducted on Saturday, March
6,
1982
which he claims establish that the operation is within the limits
set out in Rule 202.
Further, he challenges the admissability of
the May 20,
1980 tests conducted by the Agency and the results
obtained in the Agency’s December
7,
1980 test, but provided no
reasons.
As for the 9(a)
violation,
Robert Wheeler
III argues
that the photographs offered by the Agency depict airborne dirt
from the nearby plowed fields, rather than coal dust generated
by his operations.
There is great citizen concern in this action,
as evidenced
by the Pollution Complaint Forms
filed with the Agency by the
residents of South 17th Street
in Canton,
Illinois
(Exhibit F of
the Proposed Settlement)
and the testimony given at the March 10
hearing.
Residents described coal dust infiltrating their back-
yards, outdoor swimming pools, and home interiors and aggravating
respiratory and other health ailments.
They also testified that
the noise from the facility disturbed nighttime sleep, disrupted
backyard gatherings,
and indoor television and radio listening.
(R.
60—74;
80—85;
88—89;
96—97.)
Other interested persons,
including nearby residents and Respondents’ emp1oyees~testified
that the Respondents’
operation did not cause them noise or coal
dust problems.
In the Statement of Facts,
Robert Wheeler III, averred that
a new front end—loader has been purchased, the old front end—
loader has been modified to reduce sound, and that calcium—chloride
and oil is regularly spread on portions of the facility to reduce
blowing coal dust.
The employees testifying March
10,
1982 cited
these efforts.
The Proposed Settlement Agreement provides that Ronald Wheeler
be dismissed as a Respondent in this action.
The terms intended
to resolve
the alleged violations provide the Respondent with two
alternatives.
The Respondent shall move the coal storage and dis-
tribution operation to a different location by June
1,
1982 or
shall construct a coal dust barrier and a noise barrier at the
present facility in accordance with specifications agreed to by
Respondent and the Agency.
The noise barrier will be erected
only if proved necessary by an Agency noise test to be conducted
no later than April
1,
1982.
In the event that the operaton is
not moved,
the Respondent further agrees to take additional mea-
sures,
including but not limited to, oiling the coal, watering
the coal pile, and treating the coal pile with calcium—chloride
when weather conditions aggravate air pollution attributable to
coal dust
(Stip.
1 and 2).
The Respondent shall also pay a stip-
ulated
sum
of $2,500.00 to the Environmental Protection Trust
Fund.
The Board
finds the Proposed Settlement Agreement acceptable
under Procedural Rule 331 and finds
that Respondent, Robert Wheeler
III, has violated Sections 9(a)
and 24 of the Act, and Rules 102
and 202 of Chapter
8:
Noise Pollution.
Since the stipulated date,
49-15
4
June
1,
1982,
for either moving the operation or otherwise modify-
ing the operation has passed
(Stip.
2.A),
the Board will
require
that Respondent comply with the terms of Stipulation 2.A no later
than April
1,
1983.
This will
allow Respondent sufficient time
to move or construct the barriers,
and afford
the
nearby residents
relief prior to the spring and summer
seasons.
Similarly, the
Agency,
if
it has not already done so,
is required to conduct
noise tests pursuant to Stipulation 2.B no later than November
1,
1982.
As stated above,
the Board was concerned about
the statutory
authority to deposit stipulated sums into the Environmental Pro-
tection Trust Fund (Fund)
in lieu of
a penalty.
The language of
Section 61
of the Act provides that the “Environmental
Protection
Trust Fund
Commission may accept, receive or administer on behalf
of the State any grants,
gifts,
loans or other funds made avail-
able to the Commission from any source for purposes of environ-
mental protection and related enforcement programs.”
Penalties
assessed by the Board are similarly intended to aid in the
enforcement of the Act.
Therefore,
it
is appropriate that a
stipulated penalty be deposited
in the Fund.
Although the Board
will accept Stipulation
4,
it notes
that
it
is deficient pursuant
to Section 61
of the Act.
Section 61 further provides that funds
received are to be appropriated by
the
General
Assembly to the
Fund,
“provided that such monies
shall he used only for the pur-
poses for which they are contributed and any balance remaining
shall
be returned to the contributor..
.“
The Proposed Settlement
failed to designate any specific purpose for the funds.
The
Board will therefore correct the deficiency and designate that
the stipulated
sum
is for the purpose of cleaning up abandoned
landfill sites found within Illinois.
The Board also notes that
although
this Section provides that unused monies be returned to
the contributor, the Act does not specify any length of time in
which
the
fund must be used.
To assure that the funds are not
returned to the Respondent,
the Board requires that Respondent
waive his rights to any return of the contributed monies.
This Opinion constitutes the Board’s
findings of fact and
conclusions of law in
this matter.
ORDER
1.
The Respondent,
Robert Wheeler III, has violated Rules
102
and 202 of Chapter 8:
Noise Pollution and Sections
9(a)
and 24 of the Illinois Environmental Protection Act.
2.
Within 90 days of this Order, Respondent shall, by certified
check or money order payable to the
Illinois Environmental
Protection Trust
Fund, pay the stipulated penalty of $2,500.00,
which is to be sent to:
49-16
5
Illinois Environmental Protection Agency
Fiscal Services Division
2200 Churchill Road
Springfield,
IL
62706
3.
Within 90 days of this Order, Respondent Robert Wheeler III
shall file with the Illinois Environmental Protection Agency
a waiver to any return of any amount of money paid to the
Environmental Trust Fund.
4.
The Parties shall
comply with all the terms and conditions
of the Proposed Settlement
filed on April
26,
1982,
which
is incorporated by reference as
if fully set forth herein,
except as amended by the Board.
As amended, the Parties
shall comply as follows:
a.
Respondent Robert Wheeler III shall either
relocate
the
coal distribution
and storing aspect of the business
or construct a coal
dust harrier
to the specifications
agreed upon by the parties as will result
in co!npliance
with the Environmental Protection Act and Pollution
Control Board Regulations contained
in Chapter
2:
Air
Pollution no later than April
1,
1983;
and
h.
The Illinois Environmental Protection Agency shall
conduct noise tests to determine Respondent’s present
compliance with Pollution Control Board Regulations
of Chapter
8:
Noise Pollution,
Rule 202.
If it
is
determined that Respondent is not in compliance,
and
Respondent elects
to remain at the present site,
Respondent shall construct a noise barrier to the
specifications agreed upon by the Parties as will
result in compliance with the aforesaid. Rule 202,
no later than April
1,
1983.
5.
Within 90 days of this Order,
Respondent Robert Wheeler III
shall file the following Certificate of Acceptance of the
Stipulated Agreement as modified by this Order with the
Illinois Environmental Protection Agency.
CERTIFICATE
I,
(We),
_____________
________
,
having read
the Order of the Illinoi.i~6TThE~nContrdT~oardin PCB
81—143, dated
_________________
,
understand and accept
the said conditions thereto binding and enforceable.
Pettioner
By:
Authorized Agent
49-17
6
Title
Date
6.
The five motions filed by Respondent on April
26,
1982 are
hereby dismissed pursuant to the Stipulation filed that
same day.
IT
IS SO ORDERED.
Chairman J.
Dumelle dissented.
I, Christan L. Moffett,
Clerk of the Illinois Pollution
Control Board, hereby~~rtifythat the above Opinion and Order
were adopt~don the
~‘‘
day of
~.-~-t~’
,
1982 by a
vote of
‘f—I
_.
L~Y
c~1~L4~
Christan
L. Moff~,~C~lerk
Illinois Pollution ~dntrol Board
49-18