ILLINOIS POLLUTION CONTROL BOARD
January
4, 1979
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Complainant,
v.
)
PCB 78—118
KIRBY FOODS,
INC.,
a Delaware corporation,
Respondent.
MR. WILLIAM
E. BLAKNEY
& MR. JEFFREY
S. HERDEN,
ASSISTANT
ATTORNEYS GENERAL, APPEARED ON BEHALF OF THE COMPLAINANT.
FRANKLIN, FLYNN AND PALMER, ATTORNEYS AT LAW
(MR. LEONARD T. FLYNN,
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 April 25, 1978
Complaint brought by the Illinois Environmental Protection Agency
(“Agency”).
Count
I of the Complaint alleged that, on each and
every day of operation from August
9,
1973 through the date of
filing of the Complaint, the Respondent operated its food market
compressors
so as to allow the emission of sound beyond the
boundaries of its property.
Count
I of the Complaint also
alleged that,
on specified dates,
the Respondent emitted sound in
violation of Rule 202 of Chapter
8:
Noise Regulations.
Count II
of the Complaint alleged that the sound emitted from the
Respondent’s facility unreasonably interfered with the enjoyment of
life and with the lawful activities
of neighboring residents,
in
violation of Rule 102 of Chapter
8:
Noise
Regulations
and there-
fore
in violation of Section 24 of the Illinois Environmental
Protection Act
(“Act”).
After numerous preliminary motions
were filed, hearings were held on August 31, 1978 and November
14,
1978.
The parties filed a Stipulation and Proposal for Settlement
on November 17,
1978.
Kirby Foods,
Inc.
(“Kirby Foods”)
operates a food market,
which consists of a building and property,
as well as equipment
and inventory, located at 312 West Kirby Avenue, Champaign, County
of Champaign,
Illinois
(the “facility”).
The supermarket has
operated at its present location since
1969.
At the facility,
32—349
—2—
Kirby Foods, operates twelve
(12) compressor units for the purpose
of supplying refrigerated air for the cooling of walk—in cooler
display cases, produce and other related units.
These compressor
units have been and are now located on the roof of the facility in
what is called
a “Rooftop Mechanical Center.”
The compressor units
are capable of emitting sound beyond the boundaries of the facility
property.
(Stipulation,
p.
2).
The food market is located in a mixed residential and commer-
cial neighborhood.
Since the facility first operated,
there has
been some increase in the commercial use of some surrounding
properties.
(See:
Exhibit A
which
is incorporated into the
Stipulation).
Kirby Foods,
Inc., employs approximately thirty-two
(32)
persons on a full-time basis and approximately thirty
(30)
persons on a part-time basis.
The facility is in operation
fifty—two
(52) weeks per year,
seven
(7)
days per week, twenty-four
(24)
hours per day.
(Stipulation,
p.
2).
It is stipulated by the parties that the facility constitutes
a property—line—noise-source within the definition of Rule 101 of
Chapter
8:
Noise Regulations;
that the land on which the facility
is located constitutes Class B
land within the definition of Rule
201(b)
of the Board’s Noise Regulations;
and that the main source
of the sound emitted from the facility was the compressor.
(Stipulation,
p.
3).
It is also stipulated that on September
26,
1975, March 22, 1976, April
5, 1976, April
15,
1977, May 20,
1977,
December
29,
1977, and May 24,
1978,
Kirby Foods,
Inc. 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
prepared by the Agency.
(See:
Exhibits B,
C, D,
E,
F,
G, and H
which are incorporated into the Stipulation).
Copies of each
noise survey report with cover letter were provided Respondent
subsequent to each noise survey.
These emissions constituted
violations of Rule 202 of the Board’s Noise Regulations.
(Stipulation,
P.
3-4).
The parties have also agreed that Kirby Foods,
Inc., on each
and every day of operation from August,
1973 until July,
1978,
operated its facility in such a way as to emit sound which
unreasonably interfered with the enjoyment of life and with lawful
activities of persons 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.
4).
At the request of Respondent, Agency personnel conducted
near field measurements of the sound emitted by Respondent’s
32—350
—3—
compressors on October 29,
1976.
(See Exhibit I).
The near field
measurements indicated that the air intake was the principal source
of noise emissions.
Agency personnel therefore suggested to the
Respondent that a barrier type solution would achieve the required
decibel reduction.
Subsequent to February 18,
1977, but prior
to
March 18,
1977, and in accord with
a compliance agreement which
was fully executed by February
18, 1977, the Respondent installed
acoustical lining to the compressor housing and baffles to deflect
compressor exhaust sounds.
Agency personnel inspected the facility
and took measurements of noise emission on April
15,
1977.
(See:
Exhibit E).
The results of this Noise Survey revealed that noise
emissions from the facility still exceeded the limitations of
Rule 202 of the Board’s Noise Regulations.
(Stipulation,
p.
4—5).
During the period of April
15, 1977 through May of 1978,
there occurred several discussions between the Respondent and
Agency personnel concerning the noise emissions from the facility.
However,
no significant decrease
in the sound levels of the noise
emissions was accomplished by Respondent during this period,
as
indicated by noise survey reports of May 20,
1977, December 29,
1977, and May 24,
1978.
(See:
Exhibits F,
G.
and H).
After the
filing of the Complaint in this matter on April 25,
1978,
but
prior to July 11,
1978,
the Respondent constructed a vertical
“Billboard” type barrier which resulted in the lowering of the
sound levels of the noise emissions from the facility to within
the tolerable limits of Rule 202,
thus achieving compliance with
Rule 202, B—A Day-time limits.
(See:
Exhibits J and K).
It is stipulated by the parties that the facility performs
services which are of social and economic value.
As a business,
Kirby Foods contributes to the tax bases of the State of Illinois,
County of Champaign,
and City of Champaign.
Additionally, Kirby
Foods provides full time employment for approximately
32 persons
and part-time employment for about
30 individuals.
(Stipulation,
p.
5).
The parties also agree that the Respondent has an
obligation to comply with the Board’s Noise Regulations so as to
minimize the impact of its operations on neighboring residents.
(Stipulation,
p.
5)
The proposed settlement agreement provides that Kirby Foods,
Inc., during the period between May 24, 1978 and July
11, 1978,
completed the construction of a vertical barrier which success-
fully lowered the sound levels of noise emitted from its
compressor units to within the tolerable limits of Rule
202, thus
achieving compliance with Rule 202 of Chapter
8:
Noise Regulations.
The Respondent’s success
in achieving compliance therefore
eliminates the need to formulate a future compliance program and
schedule.
(Stipulation,
p.
6-7).
However, as part of the
32—351
—4—
settlement agreement, Kirby Foods has promised to maintain the
vertical barrier in proper condition so as to remain in compliance
with Rule 202 of Chapter
8:
Noise Regulations.
(Stipulation,
p.
7).
Additionally, the parties have suggested that a stipulated
penalty of $750.00 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.E.
2d 794
(1974).
Accordingly,
the
Board accepts the Stipulation and Proposal for Settlement and
finds that,
on September 26,
1975, March 25,
1976, April
5,
1976,
April
15, 1977, May 20,
1977, December 29,
1977
and May 24,
1978,
Kirby Foods,
Inc.
caused or allowed the emission of sound from its
facility to receiving Class A
land in violation of Rule 202 of
Chapter
8:
Noise Regulations and that,
on each and every day of
operation from August,
1973 until July,
1978,
Kirby Foods,
Inc.
operated its facility in such a way as to emit sound which
unreasonably interfered with the enjoyment of life and with lawful
activities of persons 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 and Section 24 of the Illinois
Environmental Protection Act.
The Board imposes the stipulated
penalty of $750.00
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,
Kirby Foods,
Inc.,
has violated Rule 102
and Rule 202 of Chapter
8:
Noise Regulations and Section 24 of
the Illinois Environmental Protection Act.
2.
Within 45 days of the date of this Order, the Respondent,
Kirby Foods, Inc.,
shall pay the stipulated penalty of $750.00
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
32—352
—5
3.
The Respondent,
Kirby Foods,
Inc.,
shall comply with all
the terms and conditions of the Stipulation and Proposal for
Settlement
filed November 17,
1978, which is incorporated by
reference as if fully set forth herein.
I, Christan L. Moffett, Clerk of the Illinois Pollution
Control Board, herçby certify the above Opinion and Order were
adopted on the
4’i’~
day of
________________,
1979 by a
vote of
~
Illinois Pollutio:
Board
32—353