ILLINOIS POLLUTION CONTROL BOARD
    October
    8,
    1981
    ILLINOIS
    ENVIRONMENTAL
    PROTECTION
    AGENCY,
    Complainant,
    v.
    )
    PCI3
    80-181
    ILLINOIS
    FRUIT
    AND
    PRODUCE
    COMPANY,
    an
    Illinois
    corporation,
    and
    ATCHISON TOPEKA
    and
    SANTA FE COMPANY,
    a Delaware
    )
    corporation,
    Respondents.
    MS.
    MARY
    JO
    MURRAY,
    ASSISTANT
    ATTORNEY
    GENERAL,
    APPEARED
    ON
    BEHALF OF THE COMPLAINANT.
    MS. JUDITH KELLY, DRENDEL
    & KELLY, APPEARED ON BEHALF OF
    THE
    RESPONDENT
    ILLINOIS FRUIT
    AND
    PRODUCE
    COMPANY.
    OPINION
    AND
    ORDER
    OF ThE
    BOARD
    (by D.
    Anderson):
    This matter comes before the Board upon a complaint filed
    October 1,
    1980 by the Illinois Environmental Protection
    Agency
    (Agency)
    naming as respondents Illinois Fruit and
    Produce Corp.
    (IFP),
    an Illinois corporation, and the
    Atchison, Topeka and Santa Fe Company
    (Santa Fe),
    a Delaware
    corporation.
    The complaint alleges violations
    of Section
    24
    of the Illinois Environmental Protection Act
    (Act)
    and ~u1es
    102 and 202
    of Chapter
    8:
    Noise Pollution in connection with
    emissions from refrigerated railcars at a warehouse owned cy
    IFP in Streator.
    An answer was filed on November 3,
    1980.
    Hearings were held at Ottawa on June 26, July 10
    and
    July 28,
    1931.
    Members of the public attended.
    IFP owns a warehouse situated near Twelfth Street and
    Quality Lane in Streator.
    The facility is
    in LaSalle County,
    but adjacent residential property is actually in Livingston
    County (R-9,334).
    The warehouse is on a spur off the mainline
    of the Santa Fe Railroad.
    Proceeding west from the warehouse
    one encounters
    first the siding, then the mainline tracks,
    then Wasson Street and finally residential houses
    (Ex.
    20).
    The distance is about
    230 feet (R—202, Ex.
    23).
    The warehouse
    is Class B land;
    the residences are Class A
    (R-48).
    Refrigerated railroad cars are spotted on the siding and
    unloaded into IFP’s warehouse.
    This case concerns noise
    emitted from refrigeration units on the siding.
    43—339

    —2—
    Count
    I alleges emission of noise that unreasonably inter-
    feres with enjoyment of life,
    in violation of Rule 102 and
    Section 24 of the Act.
    Count II alleges violation of noise
    standards for sound emitted to Class A land during daytime
    hours, in violation of Rule 202 and §24.
    The complaint
    alleged continuing violations from August 24, 1978 and partic-
    ularly on August 24 and September
    27,
    1978, and on April 17,
    July 10, and November 2,
    1979.
    The warehouse commenced operation around January,
    1978.
    On June
    12,
    1978,
    Mr. George Palya filed a complaint with the
    Agency
    (R-10,
    20; Ex.
    6).
    On July 25 the Agency conducted
    an inspection, but there were no cars on the siding
    (R—39,
    158,
    194,
    202; Ex.
    20, 21).
    The Agency conducted
    a second inspec-
    tion on August 24
    (R—39,
    44,
    81,
    86,
    93,
    144; Ex.
    8, 22).
    Two
    cars were present; one or both refrigerators were operating on
    self-contained diesel power.
    Sound pressure level readings
    at
    frequencies greater than 1000 Hz
    (Hertz)
    indicated violations
    of daytime Class B to A noise standards of Rule 202.
    Levels
    were four to sixteen decibels in excess of the standards in
    this range.
    Levels were approximately equal to the standards
    for intermediate frequencies and in compliance at low frequen-
    cies
    (Ex.
    8)
    On August 22,
    1978 the Agency notified IFP that it had
    received a complaint (R—162,
    258; Ex.
    22).
    On September 12
    IFP responded with a letter from Mr. Don Donelson, general
    manager and vice president
    (Ex.
    23).
    The response indicated
    that IFP believed
    sound
    levels at the residences to be accept-
    able and at a level comparable to traffic and passing trains.
    IFP stated that it made a definite effort to unload cars and
    turn them off as soon as they arrived.
    IFP stated that
    Mr. Palya was “over-reacting to the problem”.
    Mr. Palya testified that during the first six months IFP
    had had as many as four cars on the siding
    at one time and
    that one car “ran for ten solid days” during both day and
    night.
    Cars would arrive on Friday afternoon
    and
    run through
    the weekend while nobody was working at the warehouse.
    The
    manager of IFP refused Mr. Palya’s suggestion that IFP discon-
    tinue this last practice
    (R—ll).
    On September 27,
    1978 the Agency conducted a third inspec-
    tion
    (R—48,
    163,
    188,
    204,
    237, 249 and 259; Ex.
    10,
    24, 25).
    Three cars were on the siding, but only one railcar refrigera-
    tion
    unit
    was operation,
    on diesel power.
    Sound level measure-
    ments taken from residential property indicated violations of
    up to nine decibels over the daytime Rule 202 standard for
    high frequencies.
    43—340

    —3—
    The Agency received additional citizen complaints between
    October 30 and November 29, 1978
    (R-245, Ex.
    5,
    19).
    On November 2,
    1978 a compliance conference was held
    (R—168,
    196, 201,
    205, 252,
    259; Ex.
    25,
    26,
    27,
    28,
    29,
    30).
    Discussion
    centered on construction of a barrier wall
    and
    scheduling of
    railcars
    (R-252,
    254;
    Ex.
    38,
    29).
    The Agency requested notifi-
    cation of any corrective measures IFP planned to take
    (Ex. 28).
    On January 2, 1979 IFP wrote a letter to the Agency indica-
    ting that it was studying a concrete wall.
    The contractor
    could not work in winter months
    and
    would not quote a price
    (Ex.
    29,
    30).
    IFP indicated a need to examine federal regula-
    tions on railroad construction
    (Ex.
    30).
    The refrigeration units on the cars have four components:
    a diesel engine,
    an electric generator,
    an electric motor, and
    a compressor.
    The compressor motor can be powered by the
    diesel generator, or by connection to an external electrical
    source
    (R-282,
    304,
    357.
    On January
    2,
    1979 IFP suggested the
    possibility of installing an electric supply system so the
    diesels could be turned off.
    IFP suggested this might bring
    the noise down to an acceptable level
    (Ex.
    30).
    On February
    6,
    1979 the Agency received another citizen
    complaint
    (Ex.
    21).
    On April 17,
    1979 the Agency conducted
    a fourth inspection
    (R—54, 104, 239,
    259; Ex.
    11, 12).
    One refrigerator car was
    operating.
    Sound
    level measurements indicated violations of
    daytime standards for frequencies in excess of 500 Hz.
    Levels
    2 to 15 dB over the standards were recorded.
    Levels at lower
    frequencies were approximately equal to or slightly less than
    the standards
    (Ex.
    11).
    On May 29,
    1979 the Agency conducted a fifth inspection
    (R—6l,
    65,
    97, 101,
    121, 144; Ex.
    13,
    14)
    .
    One refrigeration
    unit was in operation.
    Sound levels were less than the stand-
    ards for all frequencies
    (Ex.
    14).
    The report indicated that
    construction of electrical outlets had commenced.
    On July 10,
    1979 the Agency conducted a sixth inspection
    (R—66,
    78,
    109, 144,
    175,
    259; Ex.
    15,
    31)
    Six railcars were
    on the siding, four refrigerated.
    Three refrigerators were
    operating.
    Electrical hookups were not yet in operation.
    Measured sound levels were as much as
    11 dB in excess of day-
    time standards at frequencies in excess of 1000 Hz.
    Levels
    at lower frequencies were approximately equal to the standards.
    43—34 1

    —4—
    On July 27,
    1979
    the Agency notified IFP of the inspection.
    The letter noted the slow work on the electrical hookups
    (R-l98,
    Ex.
    32).
    On August
    8, IFP explained the delay and indicated
    it had spent over $20,000
    (Ex.
    33).
    On October 5 and 19,
    IFP
    further stated that extension cords had been received and that
    the electrical system was in operation
    (Ex.
    34,
    35).
    The
    latter letter makes reference to an Agency enforcement letter
    of October
    5, which is not in evidence.
    IFP indicates that
    the Agency had taken exception to compressor noise.
    IFP
    stated
    that
    “as
    we
    were
    always
    talking
    about
    the
    noisey
    engine
    in the past, we did not believe it to be
    a major problem.”
    (sic)
    (Ex.
    35)
    On November 2, 1979 the
    Agency
    conducted
    a
    seventh
    inspec-
    tion.
    Three cars were on the siding.
    One refrigerator was
    running without diesel power
    (R-67,
    78,
    112,
    144;
    Ex.
    16,
    17).
    Sound levels were as much as
    11 dB in excess
    of the daytime
    standards for frequencies in excess of 1000 Hz.
    However,
    levels were within the standard for frequencies of 500 Hz or
    less.
    This low frequency sound was markedly less than with
    the diesels running
    (Ex.
    16).
    At this point
    it was apparent
    that low frequency noise was associated with the diesel/genera-
    tor; high frequency with the motor/compressor.
    On December 6, 1979 the Agency notified IFP of the inspec-
    tion.
    The Agency stated that even with electrical hookups
    compressor noise continued to be a problem
    (Ex.
    36).
    IFP
    responded with two letters on December 28.
    IFP indicated that
    construction of a building over the siding would cost $600,000
    and
    that a wall would not be effective because of large openings
    required by federal regulations.
    This action was commenced against IFP on October
    1,
    1980.
    On March 23, 1981 the Agency conducted its eighth inspec-
    tion.
    (R—67,
    80, 119,
    122,
    126,
    138; Ex.
    18).
    One refrigerated
    car was operating on electrical power and another on diesel.
    This latter was delivered immediately before the measurements
    were taken.
    Sound pressure levels were as much as
    6 dB over
    the daytime standards for frequencies of 1000 Hz or greater.
    Levels were in compliance with the standard for lower frequen-
    cies.
    Mr. Palya testified that the noise kept him from opening
    windows and irritated him
    (R-lO).
    Mrs. Alexandra Cole testified
    that it was like a loud lawnmower going constantly.
    It inter-
    fered with sleep and prevented conver3ation in the yard
    (R-27).
    43—342

    —5—
    IFP cross-examined the Agency’s witnesses and questioned
    the proof on several points.
    However, IFP’s case went to
    mitigation.
    The Board
    finds that IFP violated the daytime noise stand-
    ards of Rule 202 for Class B to Class A land on August 24 and
    September 27,
    1978 and on April 17, July 10,
    and November 2,
    1979.
    The Board also finds IFP in violation of Rule
    102 and
    §24 of the Act, unreasonable interference with enjoyment of
    life, substantially as alleged in the complaint.
    On June 22,
    1981 IFP filed a petition requesting a variance
    from Rules
    202 and 203
    (PCB 81-104).
    Upon request of IFP the
    Board has incorporated the record into this action (Order of
    September 3, 1981).
    The Board will consider the compliance
    plan in connection with the penalty and in connection with the
    variance which will be granted in a separate Order.
    On September 12, 1980 IFP hired Mr. Bruce Kleinlein as
    general manager
    (R-347,
    367,
    369, 374).
    The previous manager’s
    nonresponse to complaints was
    an important factor which led to
    Agency involvement and the filing of this action
    (R-10,
    347).
    On review of the record it appears that there were several
    inexpensive steps IFP could have taken early on which would
    have avoided this enforcement action.
    IFP’s early intransi-
    gence is a major factor in deciding the amount of the penalty.
    There are three approaches to compliance:
    use
    of electrical
    hookups to eliminate diesel noise; reduction in the number of
    cars
    and
    the time the refrigerators are running;
    and, construc-
    t.ion of a barrier wall to block sound.
    As is noted above, on January 3,
    1979 IFP suggested
    installation of the electrical hookups.
    These were completed
    prior to December 6,
    1980 and failed to achieve compliance.
    The Agency has denied recommending this, but it clearly
    acquiesced in their construction
    (Ex.
    31).
    These did eliminate
    the low frequency noise which,
    although usually in compliance
    with Board standards, was a major source of irritation
    (R-ll,
    12, 347).
    The electrical hookups will be used as part of the
    overall noise reduction plan
    (R-376).
    They cost $18,000 to
    $20,000
    (R-342)
    In the variance petition IFP asks for time prior to con-
    struction of a barrier wall to implement steps to reduce the
    number
    of cars and the time of refrigerator operation.
    IFP
    has not yet committed itself to barrier
    construction
    and
    feels
    that other measures may satisfy the neighbors even if they
    still involve occasional noise in excess of the standard.
    43—343

    —6—
    IFP
    has
    an
    oral
    agreement
    with
    the
    Santa
    Fe
    which
    provides
    that
    the
    latter
    will
    hold
    cars
    until
    IFP
    is
    ready
    to
    unload
    them (R—270,
    296, 344,
    349,
    358,
    370).
    The diesel units will
    be
    promptly
    turned
    off
    and
    compressors
    run
    by
    electricity
    (R—302,
    353,
    356,
    376,
    381)
    .
    Refrigerators will not be left
    running overnight or over weekends
    (R-304,
    316,
    344, 350).
    It is not clear whether an enforceable contract has been
    executed
    with
    the
    Santa
    Fe
    (R-349).
    Since
    this
    is
    an
    essential
    part
    of
    the
    plan,
    the
    Board
    will
    order
    the
    railroad
    to
    hold
    the cars until requested by IFP.
    The IFP warehouse operates around the clock,
    five days per
    week.
    Trucks delivering produce are unloaded in the morning,
    railcars in the afternoon.
    At night orders
    are made up and
    delivery trucks loaded
    (R-335,
    360).
    IFP’s past inability to
    unload cars on arrival was in part caused by its failure to
    allocate to the railcars manpower from unloading or loading
    trucks.
    IFP has now agreed to increase the work crews
    so the
    cars can be unloaded in
    3 to
    4 hours, and to schedule overtime
    if necessary to unload the cars on arrival
    (R—358,
    372).
    A
    standby crew is available if it
    is necessary to unload
    a car
    on Saturday
    (R-358).
    IFP estimates the cost of the work
    changes
    at about $10,000 per year
    (R-359,
    371).
    Under its former practice IFP turned refrigerators off
    upon completion of unloading.
    It now disconnects the compressors
    from the electric source
    as soon
    as possible.
    In winter months
    it may be possible to shut the refrigerators off on arrival.
    During summer it may be necessary to run them for up to two
    hours
    (R—302,
    353,
    356,
    376,
    381).
    IFP has estimated its rate
    of railcar receipts at ten to twelve per month
    (R-297, 340,
    377,
    381).
    The maximum hours
    of operation of compressor units
    would then be about twenty to twenty-four hours per month
    (R-377).
    IF? concedes that the steps noted above will leave it out
    of compliance during delivery
    of
    a car and possibly for a time
    during unloading.
    Compliance during unloading may require
    construction of a barrier wall or enclosure.
    The latter
    is
    estimated to cost $250,000
    (R—365).
    IFP hired a noise consultant during 1981
    (R-276).
    There
    are three recommended barrier walls:
    the temporary Agency
    version, the permanent Agency version
    and
    IFP’s consultant’s
    version (R—186, 280, 303,
    312,
    318,
    362,
    371,
    378).
    The Agency
    estimated $26,000 for a 210 by 12 foot wall of railroad ties
    and
    transite (R-l86).
    IFP earlier expressed a preference for
    a concrete wall which the Agency estimated at $250,000
    (R-l86,
    Ex.
    29,
    30)
    43—344

    —7--
    IFP’s
    expert
    questioned
    the
    Agency’s
    designs
    on
    account
    of
    effectiveness,
    weather
    resistance
    and
    structural
    soundness
    (R-284,
    288).
    He recommended that, if a
    harrier
    was
    to
    be
    built,
    it be of “4-inch thick standard industrial grate,
    sound absorptive panel”
    (R-287).
    These would be on botri sides
    of the cars to stop reflection off the building.
    The walls
    would be 20 feet high.
    The panels would be hung from a steel
    frame on concrete footings.
    The total cost would be $25,000
    to $30,000
    (R—289,
    313,
    363).
    There is no guarantee that any
    of the proposals would result in full compliance
    (R-364).
    IF? rejected the Agency’s suggested temporary structure
    in part because of the effect on the value of its new facility
    (R-379).
    In its first letter to the Agency, IF? noted that
    its
    facility
    was
    new
    and
    that
    “our
    old
    plant
    was
    quite
    close
    to
    homes
    and
    we
    were
    aware
    of
    these
    problems.”
    (Ex.
    23)
    The
    Board
    notes
    that
    the
    parties
    have
    not
    addressed the
    possibility
    of
    a
    vegetative
    barrier.
    There
    appears
    to
    be
    space
    between
    the
    siding
    and
    mainline
    in
    which
    trees
    and
    shrubs
    could
    be
    planted
    (Ex.
    20,
    21),
    There
    may
    also
    be
    room
    between
    the
    tracks
    and
    road.
    The
    Board
    will require as
    a
    condition
    of
    the
    variance
    in
    PCB
    81—104
    that
    IFP
    submit
    to
    the
    Agency
    within
    60
    days
    a
    report
    on
    planting
    feasibility.
    If
    the
    Agency
    finds
    the barrier feasible, IF? shall conduct
    and
    maintain
    the
    required
    plantings.
    As
    noted
    above,
    the
    noise
    interfered
    with
    normal
    activi-
    ties in the residential area from January,
    1978 through June,
    1981.
    The
    social
    and
    economic
    value
    of
    the
    warehouse
    is
    not
    questioned
    (R-23).
    The area exhibited high ambient noise
    levels
    and
    was
    subjected
    to
    the
    passing
    of
    32
    trains
    per
    day
    which
    made
    for
    more
    noise
    than
    that
    in
    question
    here
    (R-266).
    The
    area
    adjacent
    to
    the
    tracks
    is
    suitable
    for
    warehouse
    activity.
    Noise
    reduction
    is
    technically
    practicable
    and
    economically
    reasonable
    even
    if
    construction
    of
    a
    barrier
    wall
    is
    necessary.
    The
    Board
    will
    order
    the
    respondents
    to
    perform
    various
    steps toward compliance.
    The Board will not include a cease
    and desist order, noting the variance.
    The Board will require
    Respondent to take additional measurements if requested by
    residents.
    The Board notes that the principal complainant
    has expressed satisfaction with current compliance
    (R—l2),
    Santa Fe did not appear in this proceeding through counsel,
    although its agent attended and testified
    (R-264).
    IFP claims
    Santa Fe is exonerated through a clause in its contract with
    Santa Fe
    (R—375,
    400).
    The record in this case
    is adequate to
    43— 34 5

    —8—
    support a finding that Santa Fe caused or allowed the violations
    in question.
    The railroad cannot delegate its responsibility
    to comply with environmental laws.
    The Board finds that a penalty of $750 is necessary to aid
    enforcement of the Act in view of IFP’s early reluctance to
    take simple steps to reduce noise upon receipt of complaints.
    No monetary penalty will be assessed against Santa Fe.
    This
    Opinion constitutes the Board’s findings of fact and conclusions
    of law in this matter.
    ORDER
    1.
    Respondents Illinois Fruit and Produce Corp.
    and the
    Atchison,
    Topeka
    and
    Santa
    Fe
    Company
    have
    violated
    Rules
    102 and 202 of Chapter
    8:
    Noise Pollution and
    §24 of the Environmental Protection Act.
    2.
    Respondent Illinois Fruit and Produce Corp.
    shall
    comply with the conditions
    of the variance in PCB 81-104.
    3.
    Respondent Atchison, Topeka and Santa Fe Company shall
    hold cars until Illinois Fruit and Produce Corp.
    requests
    delivery.
    4.
    Within thirty-five days of the date of this Order,
    Respondent
    Illinois
    Fruit
    and
    Produce
    Corp.
    shall,
    by
    certified check or money order payable to the State of
    Illinois, pay a civil penalty of $750 which is to be
    sent to:
    State
    of Illinois
    Fiscal
    Services
    Division
    Illinois
    Environmental
    Protection
    Agency
    2200 Churchill Road
    Springfield,
    Illinois
    62706
    IT
    IS SO ORDERED.
    Mr.
    Goodman
    concurred.
    I,
    Christan
    L.
    Moffett,
    Clerk
    of
    the
    Illinois
    Pollution
    Control Board, hereby certify that the
    above
    Opinion
    and
    Order
    were adopted on the
    ~‘i~ day of
    ~
    ,
    1981
    by
    a
    vote
    of
    ~
    (~/~L~:/~
    ~
    2
    C
    Christan
    L.
    Mof~q-?t,
    Clerk
    Illinois
    Pollutio’l~
    Control
    Board
    43—346

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