ILLINOIS POLLUTION CONTROL BOARD
November
30, 1978
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Complainant,
v.
)
PCB 77-15
RICHARD ABDNOUR, d/b/a
HIGHLAND FOOD MARKET,
Respondent.
MS. SUSAN SHUMWAY, ASSISTANT ATTORNEY GENERAL, APPEARED ON BEHALF
OF
THE
COMPLAINANT.
MYERS
& DAUGHERITY, ATTORNEYS AT LAW
(MR.
EUGENE P.
DAUGHERITY,
OF
COUNSEL), APPEARED ON BEHALF OF THE RESPONDENT.
OPINION AND ORDER OF THE BOARD
(by Mr. Werner):
This matter comes before the Board on the January
13, 1977
Complaint brought by the Illinois Environmental Protection Agency
(“Agency”)
which alleged that from May 4,
1976 until January 13,
1977 the Respondent operated five compressors
(used for the
refrigeration of food products) mounted on a concrete slab
located on the outside and at the rear of a food market building*
in such a manner as to cause or allow the emission of sound
beyond the boundaries of the property which unreasonably interfered
with the enjoyment of life and with the lawful activities
of
persons on Class A land in proximity to Highland’s property
in
violation of Rule 102 of Chapter
8:
Noise Regulations and Section
24 of the Illinois Environmental Protection Act
(“Act”).
On December 5,
1977,
the Complainant filed
a Motion for Leave
to
File an Amended Complaint,
Instanter and an Amended Complaint.
The Board granted the Agency’s motion on December 20,
1977.
The
Amended Complaint updated the original Complaint and added a
second count to allege that,
on specified dates, the Respondent
emitted sound from its facility in violation of Rule 202 of
Chapter
8:
Noise Regulations.
A hearing was held on June 30,
1978.
The parties filed a Stipulation and Proposal for Settlement
on July
3,
1978.
Respondent Richard Abdnour, d/b/a
Highland Food Market*
(“Highland”)
owned and operated a food market* which consisted of
32—139
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a building and property, as well as equipment and inventory,
located at
1114 North Bloomington Street, Streator,
County of
LaSalle,
Illinois.
The facility* has been operated at its present
location since 1941.
In
1973,
Richard Abdnour became the owner of
the market by purchasing the business from his father.
At the
facility,
Highland operates five
(5)
compressor units for the
purpose of refrigeration of food products.
These compressor units
have been located on the outside of and at the rear of the building
at the facility since 1973.
The compressor units are capable of
emitting sound beyond the boundaries of the facility property.
The
food market* is located
in a mixed residential,
light industrial, and
commercial neighborhood.
There has been no significant change in
the neighborhood since the facility was first operated.
Highland
employs approximately four persons in the operation of its
business, two full—time and two part—time.
The food market*
is in
operation fifty—two weeks per year,
seven days per week,
thirteen
hours per day.
(Stipulation,
p.
2).
it
is stipulated by the parties that the facility emits sound
beyond the boundary of Highland’s property and that the facility
constitutes
a property—line-noise—source within the definition of
Rule 101 of the Board’s Noise Regulations.
The land on which the
food market* is located constitutes Class B land within the
definition of Rule 201(b)
of Chapter
8:
Noise Regulations.
The
main source of the sound emitted from the facility
is the compressors.
(Stipulation,
p.
3).
It is stipulated that on May 4,
1976,
August 30,
1976, May 11,
1977,
and June 29,
1977, Highland caused
or allowed the emission of sound from its facility to receiving
Class A
land in excess of the limitation imposed by Rule 202 of
the Board’s Noise Regulations,
as shown by Noise Survey Reports
and Investigation Reports prepared by the Agency.
(See: Exhibits
B,
C,
D, and F which are attached to and incorporated into the
Stipulation).
These sound emissions constitute violations of
Rule 202 of Chapter
8.
(Stipulation,
p.
4).
Highland has,
subsequent to the filing of the Amended
Complaint, caused or allowed the emission of sound from its
facility to receiving Class A
land in excess of the limitation
imposed by Rule 202 of the Board’s Noise Pollution Regulations.
(Stipulation,
p.
4).
*Mr. Abdnour
is no longer doing business as Highland Food
Market,
although he still occupies the same business location.
He
is now in the liquor retail business and is currently doing
business as Foremost Liquors.
However, he still has the same
compressors and
is still
in operation.
(Record,
p.
2-3)
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—3—
The Complainant represents
that,
if
a hearing were held in
this matter,
it would present testimony of at least three citizens
residing on Class A
land in proximity to Highland.
Complainant
further represents that these citizens would testify,
in substance,
that sound emitted from Highland’s facility has from May 4,
1976 to
the present date interfered with their rest and relaxation; causes
irritability; interferes with daytime sleep;
interferes with
conversation; and interferes with the use of enjoyment of their
property.
(Stipulation,
p.
4).
Subsequent to May 11,
1977, but prior to June 29,
1977,
Highland constructed a compressor enclosure.
(See:
Exhibit
E)
At some time between May 11,
1977 and June
29, 1977, Highland
altered the structure which had been built
in substantial
compliance with Exhibit
F.
The alternations consisted of the
addition of two axial flow exhaust fans in the bottom half of the
west wall of the new structure,
directed towards
a residence.
(Stipulation,
p.
4).
Agency personnel inspected the facility and took measure-
ments of noise emissions therefrom on June
29,
1977.
A copy of
the Noise Survey Report and Investigation Report prepared by the
Agency,
reflecting the June
29,
1977 inspection and measurements,
is attached to the Stipulation as Exhibit F.
The measurements
are in accordance with Rule 103 of the Board’s Noise Regulations
and accurately reflect the actual sound levels present at that
time and place.
(Stipulation,
p.
5).
The Agency’s June 29, 1977
investigation revealed that a high-pitched noise was being emitted
from the facility, and measurements on that date revealed that
noise emissions from the facility exceeded the limitations of Rule
202 of Chapter
8:
Noise Regulations, with and without the presence
of the high-pitched noise.
Highland represents that
it originally constructed the
structure in conformance with Exhibit
F, but the structure
provided insufficient air flow to the refrigeration units, causing
three of the units to burn out.
Highland represents that the fans
were added to ensure adequate air flow.
However,
the Agency
contends that the fans are placed so as to cause or contribute
to
excess noise emissions from the facility, and that noise emissions
can be reduced and proper air flow maintained by relocating the
fans and keeping all louvers and fans unblocked.
(Stipulation,
p.
5).
It
is stipulated that Highland has, on each day of operation
of the facility since May
4,
1976, operated its facility
in such
a way as to emit sound which unreasonably
interfered with the
enjoyment of life and with lawful business and activity of persons
32—14 1
—4—
residing in proximity to the facility,
thus causing noise
pollution as defined in Rule 101 of the Board’s Noise Regulations,
and therefore
in violation of Rule 102 of Chapter
8:
Noise
Regulations.
(Stipulation,
p.
5).
The parties have also
stipulated
that the food market* performs services which are of
social and economic value.
As a business, Highland contributes
to the tax bases of the State of Illinois, LaSalle County,
and
the Village of Streator.
Additionally, Highland provides employ-
ment for four
(4) persons.
(Stipulation,
p.
5-6).
The parties
agree that Highland has an obligation to comply with the Board’s
Noise Regulations
so
as to minimize the impact of its operations
on neighboring residents.
It
is further stipulated by the parties
that it is currently both technically practicable and economically
reasonable for Highland to take all actions required by the
Compliance Program and Schedule which is detailed in the
Stipulation and Proposal for Settlement.
(Stipulation,
p.
7-9).
The proposed settlement agreement,
which is designed to bring
the Highland facility into compliance with Rule 202 of the Board’s
Noise Regulations, requires the Respondent,
as part of the
Compliance Program, promptly relocate the two axial flow exhaust
fans to the roof of the compressor enclosure and to either
completely
seal the hole left in the wall by the removal of the
fans,
or completely seal the hole with seal and sound absorptive
louvers.
(Stipulation,
p.
7)
.
In the event that noise measure-
ments conducted by the Agency after the exhaust fans are relocated
reveal that the facility is still not in compliance with Rule 202
of the Board’s Noise Regulations,
the Respondent has agreed to
promptly construct plywood barriers,
lined with sound absorptive
foam, on the roof of the structure between each fan and the
nearest residence in accordance with the recommendations of
Respondent’s sound experts.
If subsequent noise measurements by
the Agency indicate that the facility
is still not in compliance,
Highland shall accomplish further sound reduction to meet the
Board’s Noise Regulations as may be agreed upon between the
parties.
(Stipulation,
p. 7-8).
The Agency has agreed that,
within one week of its receipt of any complaints about noise from
the facility,
it will provide written notice to Highland of the
existence and nature of the complaints.
(Stipulation,
p.
8).
Additionally, the parties have suggested that a stipulated penalty
of $300.00
is appropriate under the circumstances of this case.
In evaluating this enforcement action and proposed settlement,
the Board has taken into consideration all the facts and circum-
stances in light of the specific criteria delineated
in Section
33(c)
of the Act.
Incinerator,
Inc.
V.
Illinois Pollution Control
Board,
59
Ill.
2d 290,
319 N~. 2d 794
(1974).
Accordingly, the
Board accepts the Stipulation and Proposal for Settlement and finds
that,
from May
4,
1976 until January 13,
1977,
the Respondent,
Richard Abdnour,
d/b/a
Highland Food Market, violated Rule 102
and Rule 202 of Chapter
8:
Noise Regulations and Section 24 of the
Illinois Environmental Protection Act.
The Board imposes the
stipulated penalty of $300.00
32— 142
—5—
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
ORDER
It is the Order of the Illinois Pollution Control Board that:
1.
The Respondent has violated Rule 102 and Rule 202 of
Chapter
8:
Noise Regulations and Section 24 of the Illinois
Environmental Protection Act from May
4,
1976 until January 13,
1977.
2.
Within 35 days of the date of this Order, the Respondent
shall pay the stipulated penalty of $300.00
,
payment to be made
by certified check or money order to:
State of
Illinois
Fiscal Services Division
Illinois Environmental Protection Agency
2200 Churchill Road
Springfield,
Illinois
62706
3.
The Respondent shall comply with all the terms and
conditions of the Stipulation and Proposal for Settlement filed
July
3,
1978, which is incorporated by reference as if fully set
forth herein.
I, Christan
L. Moffett, Clerk of the Illinois Pollution
Control Board, hereby certify the above Opinion and Order were
adopted o~the
~‘
day of
________________,
1978 by a
vote of
.S~-c
Christan L. Mof~’~,Clerk
Illinois Pollution Control Board
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