2

STATUTORY BACKGROUND

 

Section 24 of the Act provides:

 

No person shall emit beyond the boundaries of his property any noise that

unreasonably interferes with the enjoyment of life or with any lawful business or

activity, so as to violate any regulation or standard adopted by the Board under

the Act. 415 ILCS 5/24

amended by

P.A. 92-0574, eff. June 26, 2002.

 

Section 33(c) of the Act provides that:

 

In making its orders and determinations, the Board shall take into consideration

all the facts and circumstances bearing upon the reasonableness of the emissions,

discharges, or deposits involved including, but not limited to:

 

i. The character and degree of injury to, or interference with, the protection

of the health, general welfare and physical property of the people;

 

ii. The social and economic value of the pollution source;

 

iii. The suitability or unsuitability of the pollution source to the area in which

it is located, including the question of priority of location in the area

involved;

 

iv. The technical practicability and economic reasonableness of reducing or

eliminating the emissions, discharges or deposits resulting from such

pollution source; and

 

v. Any subsequent compliance. 415 ILCS 5/33(c) (2000)

amended by

P.A.

92-0574, eff. June 26, 2002.

 

Section 900.101 Definitions

 

Noise pollution: the emission of sound that unreasonably interferes with the

enjoyment of life or with any lawful business or activity. 35 Ill. Adm. Code

900.101.

 

Section 900.102 Prohibition of Noise Pollution

 

No person shall cause or allow the emission of sound beyond the boundaries of

his property, as property is defined in Section 25 of the Illinois Environmental

Protection Act, so as to cause noise pollution in Illinois, or so as to violate any

provision of this Chapter. 35 Ill. Adm. Code 900.102.

 

Section 901.102 Sound Emitted to Class A Land

 

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3

a) Except as elsewhere in this Part provided, no person shall cause or allow

the emission of sound during daytime hours from any property-line-noise-

source located on any Class A, B or C land to any receiving Class A land

which exceeds any allowable octave band sound pressure level specified

in the following table, when measured at any point within such receiving

Class A land, provided, however, that no measurement of sound pressure

levels shall be made less than 25 feet from such property-line-noise-

source.

 

Octave Band

Center Frequency

(Hertz)

Allowable Octave Band Sound Pressure

Levels (dB) of Sound Emitted to any

Receiving Class A Land from

 

Class

C

Land

Class B

Land

Class A

Land

 

  

  

  

31.5 75

72

72

63 74

71

71

125 69

65

65

250 64

57

57

500 58

51

51

1000 52

45

45

2000 47

39

39

4000 43

34

34

8000 40

32

32

 

b) Except as elsewhere in this Part provided, no person shall cause or allow the

emission of sound during nighttime hours from any property-line-noise-

source located on any Class A, B or C land to any receiving Class A land

which exceeds any allowable octave band sound pressure level specified in

the following table, when measured at any point within such receiving Class

A land, provided, however, that no measurement of sound pressure levels

shall be made less than 25 feet from such property-line-noise-source.

 

Octave Band

Center Frequency

(Hertz)

Allowable Octave Band Sound Pressure

Levels (dB) of Sound Emitted to any

Receiving Class A Land from

 

Class

C

Land

Class B

Land

Class A

Land

 

  

  

  

31.5 69

63

63

63 67

61

61

125 62

55

55

250 54

47

47

500 47

40

40

---

 

4

1000 41

35

35

2000 36

30

30

4000 32

25

25

8000 32

25

25

 

Section 901.106 Prominent Discrete Tones

 

a) No person shall cause or allow the emission of any prominent discrete

tone from any property-line-noise-source located on any Class A, B or C

land to any receiving Class A, B or C land, provided, however, that no

measurement of one-third octave band sound pressure levels shall be made

less than 25 feet from such property-line source.

 

b) This rule shall not apply to prominent discrete tones having a one-third

octave band sound pressure level 10 or more dB below the allowable

octave band sound pressure level specified in the applicable tables in

Sections 901.102 through 901.104 for the octave band which contains

such one-third octave band. In the application of this sub-section, the

applicable table for sound emitted from any existing property-line noise

source to receiving Class A land, for both daytime and nighttime

operations shall be found in Section 901.102(a).

 

BACKGROUND

 

On February 25, 2000, the complainants filed a formal noise complaint against Turris and

AEI Resources, Inc. (AEI). The complaint concerns noise emanating from a mine ventilation fan

located on a Turris facility adjacent to the complainants’ residence. In response to the

complainants’ noise concerns, Turris and the complainants met a number of times to discuss the

situation. Tr. at 171-172. Turris initially installed the ventilation fan with an upcast device

designed to deflect noise up in the air. Tr. at 171. After the complainants notified Turris about

the noise complaint, Turris contacted Greg Zak for his input. Tr. at 171. Zak recommends that

Turris hire Dr. Schomer to discuss abatement methodology. Tr. at 112.

 

Pursuant to the advice of Schomer, Turris first attempted to close the upcast device that

was open toward complainants’ residence. Tr. at 171-72. Turris then received permission from

State mine regulators to install belting on the fan evase to dampen the noise. Tr. at 172, 177. In

addition, steel plating and additional belting was installed around the evase, and belting was

placed on the roof house to further dampen the sound. Tr. at 178-79. Dr. Schomer took noise

measurements and recommended additional remedies to reduce the noise. Tr. at 175. Per the

advice of Schomer, Turris removed the upcast device and installed a silencer on the ventilation

fan. Tr. at 171, 176.

 

In January 2002, the parties exchanged discovery. A pre-hearing conference was held on

June 3, 2002. This matter proceeded to hearing on June 11, 2002. At hearing, Turris moved to

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5

bar the testimony of Greg Zak.

1

Tr. at 7. Zak was called to testify on the complainants’ behalf

at hearing. Tr. at 68. Zak testified that he toured the Turris facility on May 10, 2001, and

December 3, 2001. Tr. at 74. Prior to hearing he visited the complainants’ residence on May 22,

23, and 25, 2002. Tr. at 82. As a result of his investigations, he prepared a written report dated

June 2, 2002, titled “Noise Emission from the Turris Coal Company Mine Vent Fan to an

Abutting Residential Area.” Tr. at 83. The hearing officer accepted the exhibit into evidence

over objections by Turris. Tr. at 86.

 

PRELIMINARY MATTERS

Turris’ Motion to Bar the Testimony and Report of Greg Zak

At hearing, Turris made a motion to bar the testimony and report of Knox’s noise expert

Greg Zak. This issue was addressed in an August 8, 2002 Board order in which the Board

upheld the hearing officer’s decision to allow the testimony and report into evidence. In its brief,

Turris renews the motion. Turris asserts that it is revisiting the issue because the Board has been

falsely led to believe that Turris was afforded the opportunity to interview Zak when, in fact, the

very opposite happened. Turris Br. at 6.

 

In reply, complainants assert that Turris was repeatedly advised that Zak would take

noise readings and prepare a report prior to hearing. Reply at 3. Complainants contend that

Turris was given the report on the same day that it was received by complainants, that Turris had

eight days to review the report prior to hearing, that Zak was thoroughly cross-examined on the

report at hearing, that no claim of prejudice has been made, and that Turris made no attempt to

compel the deposition of Zak or otherwise seek the assistance of the hearing officer.

Id

. Knox

also asserts that Zak was identified as a witness six months prior to hearing, and that Turris made

no attempt to depose him.

Id

.

 

The Board considers Turris’ motion to bar testimony as a motion to reconsider the

Board’s August 8, 2002 decision. In ruling upon a motion for reconsideration, the Board will

consider factors including new evidence, or a change in the law. 35 Ill. Adm. Code 101.902.

Motion for reconsideration must be filed within 35 days after receipt of the Board order. 35 Ill.

Adm. Code 101.520. The Board accepts the motion even though not timely filed. However,

Turris has not raised any issues that were not before the Board when they addressed Turris’

motion on August 8, 2002, and the motion is denied.

 

Complainant’s Motion to Conform Pleadings to Proof

At hearing, complainants moved to amend the complaint to conform to the proof and add

a violation of Section 901.106 of the Board’s noise regulations. Tr. at 150. Complainants assert

1

The transcript of the June 11, 2002 hearing will be cited as “Tr. at __.”; the complainants’ post-

hearing brief will be cited as “Knox Br. at __.”; Turris’ post-hearing brief will be cited as “Turris

Br. at __.”; the complainants’ reply brief will be cited as “Reply at __.”; Turris’ motion for leave

to file surreply instanter will be cited “Mot. at __.”; complainants' motion to strike motion for

leave to file surreply brief and objection to respondent's surreply brief will be cited as “Obj. at

__.”

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that it first discovered the potential violation in Zak’s noise report, and therefore Turris has been

aware of the potential violation as long as complainants has. Tr. at 150; Knox Br. at 3.

Complainants argue that the amendment of pleadings to conform to the proof introduced at trial

is allowed under the Code of Civil Procedure. Knox Br. at 2.

 

Complainants argue that in Illinois there is a liberal policy of allowing material

amendments to a complaint to conform to the proof adduced at trial. Knox Br. at 2-3,

citing

 

Zook v. Norfolk & Western Ry Co., 268 Ill. App. 3d 157, 205 Ill. Dec. 231 (4th Dist. 1994).

Complainants argue that when a motion to conform proof to pleadings adds greater specificity to

the law violated, and the proof reflects such violations, it is an abuse of discretion not to allow

the amendment. Knox Br. at 3,

citing

Village of Wadsworth v. Kerton, 311 Ill. App. 3d 829, 244

Ill. Dec. 560, 571 (5th Dist. 2000).

 

Complainants assert that the motion does not represent any attempt to surprise or

otherwise prejudice Turris, and that Turris has not identified any surprise or prejudice. Knox

Br. at 3; Reply at 3. Complainants argue that Turris had an opportunity to cross-examine on the

new allegations, and did so, at hearing. Reply at 4.

 

Turris asserts that complainants may not amend the complaint at such a late date. Turris

bases its objection, in part, on the manner in which the production of Zak’s noise report was

made and the non-availability of Zak prior to the hearing. Turris Br. at 8. Turris argues that

complainants could have amended the complaint once they received the report, but instead used

the tactic of surprise in making an oral motion to conform the pleadings to proof at hearing.

Turris Br. at 8-9. Turris asserts that amending pleadings to proof is not encouraged or permitted

in circumstances where such allowances would cause prejudice or surprise to either party. Turris

Br. at 9.

 

The Board grants complainant’s motion to conform pleadings to proof. Amendments to

pleadings to conform to the proof submitted are to be liberally allowed within the sound

discretion of the hearing body.

See

Fitchie v. Yurko, 212 Ill. App. 3d 541, 577, N.E.2d 538 (4th

Dist. 1991), Zook v. Norfolk & Western Ry Co., 268 Ill. App. 3d 157, 205 Ill. Dec. 231 (4th

Dist. 1994). Here, the nature of proof required to defend an alleged violation of Section 901.106

is not materially different from defending the already pled alleged violation of 35 Ill. Adm. Code

901.102(b). Turris has not shown any prejudice resulting from the amendment. Accordingly,

the motion is granted.

 

Turris’ Failure to Answer the Complaint

 

In its brief, complainants moved to have all material allegations of the complaint deemed

admitted because Turris did not file an answer to the complaint within 60 days as required by

Board rules. Knox Br. at 3-4. Turris correctly responded that under the procedural rules in

effect when the complaint was filed, the allegations of the complaint were deemed denied.

Turris Br. at 9. In its reply, complainants withdrew the argument on this point. Reply at 4. The

issue is now moot and will not be addressed by the Board.

 

 

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Turris’ Motion for Leave to File Surreply Instanter

 

Turris asserts that complainants’ reply brief had several factual misstatements and

erroneous characterizations of either the record, evidence, controlling law or Turris’ position on

the merits. Mot. at 1. Turris argues that for the sake of clarity in the record, and as an aide to the

Board, it has filed and served a surreply to address these issues. Mot. at 2. Turris asserts that the

filing of the surreply will not delay the disposition of these proceedings.

Id.

  

 

Complainants reply that neither the hearing officer’s established briefing schedule, nor

the Board’s procedural rules allow for surreply briefs. Obj. at 1. To allow Turris, argues

complainants, to take a second bite of the apple would be unjust, and that simple fairness dictates

that the complainants should have the last opportunity to brief the Board in this matter. Obj. at 2.

 

The Board denies Turris’ motion for leave to file a surreply. Although surreplies are not

allowed for in the Board’s procedural rules, the Board has accepted surreplies in the past in order

to correct misstatements and material errors.

See

CDT Landfill v. City of Joliet, PCB 98-60

(Mar. 5, 1998). Turris’ surreply is not limited to correcting misstatements and material errors,

but makes additional substantive arguments not necessitated by information or legal theories

raised for the first time in complainant’s reply brief. The Board finds that allowing the surreply

would prejudice complainants. The surreply is also in violation of the briefing schedule set by

the hearing officer in this matter, and is denied.

 

NOISE EMISSIONS TESTIMONY

Complainants

Mr. David A. Knox

Mr. Knox resides at 8214 East Main Street, Williamsville. He bought the property in

November of 1975, and moved into the house in 1976. Tr. at 15. He originally purchased the

four acres where the residence and buildings are located, and has added land since that time, so

the property now consists of 94 acres. Tr. at 16.

 

Mr. Knox described the noise from the fans as an underlying background noise that is

very noticeable. Tr. at 29. He testified that the noise can be heard on any portion of his property

depending on wind direction and moisture in the air. Tr. at 30. He is aggravated when he

awakes during the night and, if the windows are open, he hears the noise.

Id

. He testified that if

awakened at night, the noise prevents him from falling back to sleep. Tr. at 29-30, 64. Mr.

Knox testified that, although the noise level used to be considerably higher, it is still a problem

today. Tr. at 26. He testified that currently, if the windows are closed, noise cannot be heard

inside his house unless the wind is “just right,” but that if the windows are open, the noise can be

heard.

Id.

He testified that he probably runs the air conditioning slightly more in warm weather;

when the noise dictates, he closes the windows. Tr. at 27.

 

Mr. Knox testified that he used to have wood decks stretching across the south side of his

house, but that the deck was taken out in January 2002. Tr. at 18. He testified that the deck was

removed partially because it was not enjoyable to use it due to the noise level, and partially

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8

because the flooring needed to be replaced. Tr. at 18-19. Mr. Knox testified that two to three

years after he built the house, he built a duck pond for recreational purposes such as fishing. Tr.

at 21. He testified that his family used the pond for ice-skating and sledding parties during the

winter and for fishing anytime the water was not iced. Tr. at 21. Mr. Knox testified that the

duck pond has always been a getaway place where he likes to relax. The duck pond is stocked

with fish that he feeds daily. Tr. at 22.

 

Mr. Knox testified that his use of the duck pond has diminished in the last couple of

years, and that the solitude that was there has diminished tremendously. Tr. at 22. He testified

that because of the noise from Turris’ fans, being at the duck pond is not as enjoyable as it used

to be.

Id.

Mr. Knox used to spend an hour at the pond three to four evenings a week, but

because of the noise now only spends, on average, one evening a week at the duck pond. Tr. at

22. He testified that the noise from the fans affects conversation at the pond. Tr. at 38. Mr.

Knox testified that conversation is understandable, but the background noise is present - that

participants don’t have to scream at each other, but would have to speak in “somewhat of an

elevated level.” Tr. at 38. He testified that he has noticed a marked decrease in the number of

pheasant and quail visiting the duck pond. Tr. at 30.

 

Mr. Knox testified that visiting is possible inside the shed without any great difficulty,

but that the noise would be much the same as if you were living in a home close to an interstate

highway or a railroad track where you hear the traffic going by. Tr. at 39. Mr. Knox testified

that the sheds are used for storage and repair of machinery, general maintenance of farm

equipment, and welding. Tr. at 19-20. Mr. Knox testified that he stores farm implements and

supplies in his sheds in the course of his agricultural operation. Tr. at 41. He also has grain bins

located there. Tr. at 42.

 

Mr. Knox testified that although he performs repair work for neighbors, he does operate a

commercial enterprise out of the sheds. Tr. at 20. He testified that he works with a Mr. Kirby

under the assumed name of K & K, and does welding work in his sheds, for which he is paid for

his time. Tr. at 41-42.

 

He testified that normal conversation is possible in his backyard, but that background

noise will be present. Tr. at 39-40. He testified that with the furnace on and the windows closed,

the noise could not be heard in most cases unless the wind is direct. Tr. at 46.

 

Mrs. Gladys L. Knox

Mrs. Knox testified that the noise from the ventilation fan sounds like a whirring noise.

Tr. at 63. She testified that the noise is constantly present and is an aggravation, that it is always

there; and that “you can’t go anywhere on the property that you don’t hear that racket.” Tr. at

63. She testified that although the noise is more tolerable than before, if the windows are open,

the “racket” can be heard. Tr. at 64.

 

Mrs. Knox testified that if she wakes up in the middle of the night she would have trouble

getting back to sleep, and that this happens a couple of times per week. Tr. at 65. She testified

that the sounds from the pheasant and quail that she used to hear so much of is lessened.

Id.

  

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9

Mrs. Knox testified that the noise from Turris’ fans is an aggravation to her, that she enjoys

peace and quite and no longer has that. Tr. at 66.

 

Mr. Gregory Zak

Mr. Zak testified that he is a noise control engineer and a former employee of the Illinois

Environmental Protection Agency (Agency), who has worked on several tens of thousands of

complaints involving noise over the years. Tr. at 67-68. He said the noise from Turris’ facility

is produced by the actual fan itself, by the electric motor of approximately 1,000 horsepower

driving a vane axial fan, and that the physical act of the fan blades cutting through the air creates

the noise. Tr. at 78.

 

 

Zak describes the noise as similar to a vacuum cleaner. Tr. at 89. Zak testified that he is

familiar and complied with the Agency’s sound level measurement procedures pursuant to 35 Ill.

Adm. Cod 951.104. Tr. at 89. He took noise measurements at the duck pond. Zak selected the

duck pond for measurement because he was informed by Mr. Knox that it was one of the

complainant’s’ main areas of recreation, and also the area they were probably most disturbed by

noise emissions. Tr. at 144. Zak testified that the complainants’ residence, including the duck

pond, should be classified residential. Tr. at 73, 116, 132, 145. Zak testified that he found

violations of Section 901.102(b) at 125 Hz, 250 Hz, 1K Hz, 2K Hz and 4K Hz. Tr. at 95, Knox

Ex. 2. Zak testified that he found a violation of 35 Ill. Adm. Code 901.106. Tr. at 100.

 

 

Zak testified that in his opinion the noise from Turris’ ventilation fan unreasonably

interferes with the Complainant’s’ enjoyment of their property. Tr. at 101.

 

Mr. Walter F. Schultz

 

 

Mr. Schultz is an engineer employed by Turris. Tr. at 152. He testified that he was able

to have a normal conversation 50 feet away from the fan. Tr. at 186. He also testified that he

was able to hold a normal conversation in Mr. Knox’s yard. Tr. at 187.

 

ARGUMENT

 

Complainants’ Brief

 

The complainants assert that the noise from Turris’ ventilation fan has violated nuisance

and numeric standards.

 

Noise Nuisance

 

Complainants contend that the noise from the fan unreasonably interferes with the use

and enjoyment of their property. Knox Br. at 11. Further, assert complainants’, noise from the

fan penetrates their homes and at times prevents them from falling asleep, compels them to close

their windows when company comes to visit, has prohibited the use of their deck, and prevents

them from using their pond that was created and used extensively prior to the presence of Turris’

fan. Knox Br. at 11-12, 14.

 

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10

The complainants also contend that the noise from the fan has resulted in loss of wildlife

such as pheasant and quail. Knox Br. at 14. The complainants argue that noise expert Greg Zak

testified that sound measurements taken were consistent with the complainants being disturbed in

their home, because of the ability of low frequency noise to penetrate structures such as

residences. Knox Br. at 15. Also, complainants note that Zak testified that the noise from the

ventilation fan unreasonably interfered with their use and enjoyment of their property.

 

The complainants admit that Turris has some economic value, but urges that

considerations of any such value should not come at the complainants’ expense. Knox Br. at 16.

Complainants assert that because they purchased their property in 1975 and the fan started

operation in 1999; they have clear priority of location. Knox Br. at 17. Further, complainants

state that, but for Turris, the area remains rural and that given this rural nature, Turris’ facility is

inconsistent with the surrounding area.

 

The complainants assert that Zak recommended the construction of a structure over the

existing housing of the fan and attached building to remedy the noise. Knox Br. at 19.

Complainants contend that Zak testified such a structure would reduce the noise emissions and

provide a 10 dB reduction at the 125 Hz level, and likely more at higher frequencies.

Id

.

Complainants argue that Turris did not present any expert testimony on the true costs or

reasonableness of the structure, and has not provided the Board any supportable cost figures.

Knox Br. at 19-21. And, complainants assert that Turris’ quick estimate of the cost of such a

structure was not based on any specific engineering or design plans, or made by a noise engineer.

Knox Br. at 19. The complainants calculated the construction costs at $37,000 – significantly

less that the $470,000 estimated by Turris. Knox Br. at 19-20. The complainants argue that

Turris should not be allowed to avoid their obligations as established by the Act and disrupt the

complainants’ peace of mind simply by claiming the solution costs too much money. Knox Br.

at 20.

 

The complainants assert that Turris’ efforts to reduce noise emissions have not eliminated

the interference to the complainants, and that the noise will only increase as operations at the

mine progress further southwest and the fan must work harder to supply the necessary air and

exhaust. Knox Br. at 21.

 

Numeric Violations

 

The complainants contend that a threshold issue that may be raised by Turris is the

classification of the complainants’ property. The complainants assert that no dispute can exist

that the Turris property falls within Class C. Knox Br. at 22. The complainants contend that

their property is properly classified as Class A or residential property.

Id

. The complainants

argue that Class A property specifically includes farm homes.

Id

. Further, the complainants

maintain that although their sheds are used for storage and repair of machinery, they do not

constitute a commercial enterprise and that no business is conducted from the sheds.

Id

.

 

The complainants assert that Greg Zak specifically testified that their property was

residential based on his knowledge and experience in the noise field. Knox Br. at 23. The

complainants contend that Zak compared the four-acre property as equivalent to a much smaller

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11

typical subdivision yard.

Id

. The complainants assert that Turris provided no testimony on the

classification of the property.

Id

.

 

The complainants contend that Zak’s testimony shows a significant deviation (a 4 dB

exceedance) at the 125 Hz level. Knox Br. at 24. The complainants argue that this represents

more than a doubling of sound energy.

Id

.

 

The complainants assert that Zak’s testimony identifies a violation of the Board’s

regulations on prominent discrete tones. Knox Br. at 24. The complainants contend the limit

was exceeded by 7 dB and that this is a significant exceedance of over four times the allowable

sound energy.

Id

.

Turris’ Brief

 

Numeric Violation

 

Turris first addresses the classification of complainants’ property. Except for their actual,

physical home, asserts Turris, the complainants’ property should be classified as agricultural.

Turris Br. at 10. Turris contends the Standard Land Use Coding System (SLUCM) codes make

clear that if a house is located on the farm, only the house is considered Class A property while

the rest of the property is considered Class C.

Id

.

 

At best, asserts Turris, the house may be Class A, but the farm is Class C and the duck

pond is unclassified. Turris Br. at 13. Turris contends that only measurements taken at the

complainants’ house could have a proper bearing on this case, and that readings taken on an

unclassified water are of no import. Turris Br. at 14.

 

Turris argues that Section 901.106 of the Board’s regulations does not prohibit the

emission of prominent discrete tones to unclassified property, and that they have been unable to

locate any guidance from the Board as to how Section 901.106(b) should be applied with respect

to tones emitted to Class C property. Turris Br. at 15, 16. Turris contends that the complainants’

use of 59 dB as the limit for allowable sound energy from Class C to Class A property at 125 Hz

is not correct, and that 69 dB should be used instead. Turris Br. at 17.

 

Turris maintains that no daytime 901.102(a) violations are noted anywhere on the

property, and that minimal nighttime 901.102(b) violations are alleged only on the unclassified

duck pond remote from complainant’s residence. Turris Br. at 18. Turris asserts that all the

measurements upon which the alleged violations are predicated were taken well beyond the

residential dwelling at the duck pond. Turris Br. at 19.

 

Nuisance Violation

 

Turris argues that the complainants have put on virtually no consistent body of testimony

to support an allegation they have suffered a nuisance as a result of any noise from Turris. Turris

Br. at 19. Turris asserts that even if, arguendo, there has been some degree of interference, there

has been no showing of an unreasonable interference. Turris Br. at 23.

 

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12

Turris contends that Mr. Knox acknowledged the noise didn’t prevent him from going to

sleep at night, nor did he report any instance when it woke him in the night. Turris Br. at 19.

Turris also asserts that Mr. Knox acknowledged that Turris has cooperated with him on the noise

abatement issue and has made improvements.

Id

. Turris argues that the centerpiece of

complainants’ complaint is the dislike of any fan noise by the duck pond which happens during

regulatory daytime hours when the fan is unquestionably in compliance with Section 901.102(a)

numeric limits even though the limits do not apply to the property.

Id

.

 

Turris contends that the complainants’ ability to go to sleep has not been affected since

the mine altered the pitch on the fan blades, and that this fact is not surprising in light of Mr.

Knox’s demonstrated ability to sleep in the mine. Turris Br. at 20. Turris asserts that the record

reveals that the only noise ever to have actually awakened Mr. Knox has been coyotes.

Id

.

 

Turris maintains that the deck on the south side of the house was not abandoned because

of noise, but because the flooring on the deck had become rotten. Turris Br. at 20. Turris

contends that Mr. Knox has acknowledged that he can carry on a normal conversation with

someone down by the duck pond or in the equipment shed, and that the transcript contains no

evidence that Mr. Knox has ceased to use his duck pond for recreational purposes. Turris Br. at

20-21.

 

Turris asserts it spent approximately $125,000.00 to meet the concerns expressed by the

complainants. Turris Br. at 3. Turris asserts that the complainants consistently report an

improvement after Turris took measures to abate the noise. Turris Br. 21. Turris does not

believe that there is an existing unreasonable interference with the complainants’ ability to utilize

their own property or lead normal lives, or that the record in this proceeding supports such a

claim. Turris Br. at 22. Turris contends that the complainants’ ability to entertain is unimpaired

and that they report no changes in their sleep schedules or patterns.

Id

.

 

Turris next addresses the 33(c) factors even though it contends no unreasonable

interference has occurred. Turris argues that it is clear that Turris has high social and economic

value, and employs 215 people; 75 percent of whom live within 35 miles of the mine. Turris Br.

at 24-25. Turris asserts that it had to locate where it did because of access to roads and the mine.

Turris Br. at 26. Turris argues that complainants’ residence is an isolated residence in an

otherwise agricultural area, and that Turris’ property is properly zoned for its use.

Id

.

 

Turris contends that it has devoted serious resources to attempt to satisfy the

complainants’ concerns, and has made considerable improvements to the noise situation at the

mine. Turris Br. at 26-27. Turris asserts that the complainant glossed over the technical

feasibility and economic reasonableness of the solution proffered by Zak. Turris Br. at 27.

 

Complainant’s’ Reply Brief

 

 

Complainants argue that Turris’ analysis of the site classification issue is worthy of

Procrustes himself. Reply at 4. Complainants assert that Turris has presented no testimony or

evidence that the property would be classified as C, and that the only commentary on the issue

was hearsay statements not admitted for the truth of the matter asserted.

Id

. Complainants

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13

contend that the only testimony on the question of classification is from Zak who testified that

the complainants’ property is A property. Reply at 5. Complainants contend it is not trying to

include their entire 90 acres of farmland as A property, but merely that portion they use as

residence and yard. Reply at 5. Complainants assert that neither the machine sheds, nor ducks

and geese raised at the pond, serve a commercial purpose.

Id

. Complainants conclude that the

entire four-acre portion of the complainants’ property, including the duck pond, is properly

classified as A property. Reply at 6.

 

 

Complainants assert that given the ventilation fan runs constantly, there is ample

evidence in the record to find that the complainants are disturbed throughout the day. Reply at 7.

Complainants contend that the deck has not been used as a result of the constant noise, and that

the deck is being rebuilt on the opposite side of the house in an effort to shield the deck from

noise. Reply at 8.

 

 

The complainants assert that although they still garden and use their shed, they do these

things in spite of the noise and should be commended for trying to maintain a normal life in the

face of such constant noise harassment. Reply at 8. Complainants contend that Turris has

unreasonably interfered with the use and enjoyment of the complainants’ property and that the

evidence in this case demonstrates a clear and ongoing nuisance violation.

Id

.

 

DISCUSSION

The complainants have alleged that respondent violated Section 24 of the Act and 35 Ill.

Adm. Code 900.102, 900.102(a) and (b), and 901.106. The Board will first address the alleged

numeric violations – 35 Ill. Adm. Code 900.102(a) and (b), and 901.106.

 

Numeric Violations

To determine whether the respondent violated any section of 35 Ill. Adm. Code 901,

complainants must take sound measurements in strict conformance with the procedures set forth

in Section 900.103(b). 35 Ill. Adm. Code 900.103. The record shows the measurements were

taken in accordance with the Board’s procedures.

 

Next, the Board must address the threshold issue of classification of the complainants’

property. In order to determine whether or not a numeric violation exists, it is necessary to first

classify the receiving and emitting property. Property is classified pursuant to SLUCM

incorporated into the Board’s noise regulations at 35 Ill. Adm. Code Part 901, Appendix B.

 

Property can be classified Class A, B, C or U. Generally, Class A signifies residential

property, Class B is commercial, and Class C is agricultural. U denotes a land unclassified in 35

Ill. Adm. Code 901.101. The SLUCM code extensively lists what types of properties fall into

each category. Both parties agree that Turris’ property is properly classified as Class C under the

SLUCM code.

Although not conclusive of the issue, complainants’ 94-acre farm is zoned agricultural.

The majority of complainants’ property is agricultural and falls within Class C.

See

SLUCM

code 8120. Further, the SLUCM code is clear that, as a farm home, complainants’ residence is

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14

specifically included within Class A. SLUCM code 110, footnote 2 provides that “farm homes

are also included under ‘household units’ and should be identified separately from the remainder

of the farm which is coded under ‘agricultural,’ code 81.” 35 Ill. Adm. Code Section

901.Appendix B, code 110, footnote 2. However, classification of the remainder of the

approximately four-acre parcel containing complainants’ residence, tool sheds and duck pond is

at issue. Specifically at issue is classification of the duck pond where the noise measurements

were taken.

The north edge of the duck pond is located approximately 345 feet south of the house.

The wharf where the measurements were taken is approximately 393 feet south of the house.

Plaintiff’s Ex. 2, page 11. Between the duck pond and the complainants’ residence are two

steel sheds. Mr. Knox uses the sheds for storage and repair of machinery and farm equipment

and supplies. He is also compensated financially for the welding work he does out of one of the

sheds. The Board finds that the sheds are properly classified as Class C - used for other

agricultural and related activities.

See

SLUCM code, 819.

 

The duck pond is effectively separated from the complainants’ residence by the sheds.

Ponds are not specifically provided for in the SLUCM code. However, the classification that

best describes the duck pond is code 939 – other water areas, NEC.

2

Accordingly, the Board

finds that the duck pond is Class U.

 

The noise measurements upon which the alleged violations were based were taken at the

duck pond – an unclassified property. Since the duck pond is not a classified property, the

alleged numeric violations do not apply. Accordingly, the Board finds no numeric violations as

alleged in the complaint.

  

Nuisance Noise Violations

 

Complainants also allege that Turris violated Section 24 of the Act and Section 900.102

of the Board regulations. 35 Ill. Adm. Code 900.102; 415 ILCS 5/24 (2000). Together these

provisions constitute a prohibition against nuisance noise pollution. Charter Hall Homeowner’s

Association and Jeff Cohen v. Overland Transportation System, Inc., and D. P. Cartage, Inc.,

PCB 98-81 (Oct. 1, 1998) (Charter Hall), citing to Zivoli v. Prospect Dive and Sport Shop, Ltd.,

PCB 89-205 (Mar. 14, 1991) (Zivoli) slip op. at 8. In determining whether noise emissions rise

to the level of a nuisance noise pollution violation, the Board performs a two-step inquiry. First,

the Board determines whether or not the noise constitutes an interference in the enjoyment of

complainants’ lives and second, considering the factors enunciated in Section 33(c) of the Act,

the Board determines whether or not the interference is unreasonable. Charter Hall slip op. at

19-21. The following discussion will address first whether complainants have established that

the noise emanating from the ventilation fan constitutes an interference with the enjoyment of

life and second, whether the noise emissions constitute an unreasonable interference in their

lives.

 

2

NEC is an abbreviation for ‘not elsewhere coded’ in the SLUCM code.

See

35 Ill. Adm. Code

901.Appendix B, code 110, footnote 5.

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15

Interference With Enjoyment of Life

 

The Board has stated that if there is no interference there can be no nuisance noise

violation. Zivoli slip op. at 9. Accordingly the Board must first determine whether the sounds

have interfered with the enjoyment of life. Furlan v. University of Illinois School of Medicine,

PCB 93-15 (Oct. 3, 1996), (Furlan) slip op. at 4. The Board has held that the following

disturbances constitute interference: sleeplessness from nightclub noise (Manarchy v. JJJ

Associates, Inc., PCB 95-73, (July 18, 1996) slip op. at 10); noise interfering with sleep and use

of yard (Hoffman v. Columbia, PCB 94-146, (Oct. 17, 1996) (Hoffman) slip op. at 5-6, 17); and,

trucking operation noise impacting sleep, watching television and conversing (Thomas v. Carry

Companies of Illinois, PCB 91-195 (Aug. 5, 1993), slip op. at 13-15).

 

The complainants testified that the noise from Turris’ ventilation fan causes prevents

them from falling back to sleep, and that the use of the duck pond has diminished in the last

couple of years because of the noise.

 

 

Discussion

 

As previously stated the Board has found that if there is no interference there can be no

nuisance noise violation. Zivoli slip op. at 9. Therefore, the first step in the Board’s inquiry

about a nuisance noise violation is whether or not the sounds have interfered with the enjoyment

of life. Furlan slip op. at 4. Only if there has been an interference does the Board proceed to the

second inquiry of whether the noise unreasonably interferes with the enjoyment of life.

 

The Board has previously found that compliance with the numerical noise standards does

not present an absolute bar to finding of violation of the general nuisance noise prohibitions.

See

 

Village of Matteson v. World Music Theatre,

et al.

, PCB 90-146 (Apr. 25, 1991). However,

noise measurements have been used to substantiate or refute a nuisance noise claim, even if they

do not meet all Board requirements that would apply in a case alleging a numeric violation.

See

 

Charter Hall Home Owners Association v. Overland Transportation System, PCB 98-81 (Oct. 1,

1998). The Board will consider the noise measurements accordingly.

 

The Board has determined that noise interfering with sleep and use of yard (Hoffman)

and trucking operation noise impacting sleep, watching television and conversing (Thomas v.

Carry Companies of Illinois) does constitute an interference. Here, the noise impacts the sleep of

the complainants.

 

The Board finds that the noise emissions from the school do interfere with the

complainants’ enjoyment of life. Accordingly, the Board must consider if the emissions

unreasonably interfere with the complainants’ enjoyment of life.

 

Unreasonable Interference, Section 33(c) Factors

 

The remaining issue is whether the noise from the ventilation fan has unreasonably

interfered with the complainants’ enjoyment of life. Whether an interference is unreasonable is

determined by examining the factors set forth in Section 33(c) of the Act. The Board need not

find against respondent on each factor to find a violation.

See

Wells Manufacturing Company v.

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16

PCB, 73 Ill. 2d 226, 233, 383 N.E.2d 148, 151 (1978) (Wells Manufacturing); Processing and

Books, Inc. v. PCB, 64 Ill. 2d 68, 75-77, 351 N.E.2d 865, 869 (1976); Incinerator, Inc. v. PCB,

59 Ill. 2d 290, 296, 319 N.E.2d 794, 797 (1974). The Board will now consider each of the

Section 33(c) factors.

 

The Character and Degree of Injury to, or Interference With the Protection of the Health,

General Welfare and Physical Property of the People

 

In assessing the character and degree of interference that the noise emissions from the

ventilation fan caused, the standard applied by the Board is whether the noise “substantially and

frequently interferes” with the enjoyment of life, “beyond minor or trifling annoyance of

discomfort.” Charter Hall, slip op. at 21, citing Kvatsak v. St. Michael’s Lutheran Church, PCB

89-182 (Aug. 30, 1990), slip op. at 9.

 

As previously indicated, the complainants assert that the noise from the fan unreasonably

interferes with the enjoyment of their lives and properties. They specifically point to impacts in

the enjoyment of their duck pond and deck, as well as impacts on their abilities to get back to

sleep if awakened. Knox Br. at 7. The complainants highlight that the noise is constant, and

argue that the noise will only increase with time. Knox Br. at 13.

 

Discussion

 

 

In determining the character and degree of injury caused by the noise emissions from the

plant the Board must examine whether the interference was substantial and frequent.

 

The evidence submitted by the complainants on the interference caused by the noise is

inconsistent. Mr. Knox testified that the noise from the fans affects conversation at the pond, but

that conversations are possible even though the background noise is present. Tr. at 38. Both of

the complainants testified that the noise sometimes prevents them from going back to sleep if

awakened, but neither complainants testified that the noise ever caused them to wake up. In

addition, Mr. Knox testified that he cannot hear the noise if the windows on the house are closed

or unless the wind is just right.

 

As previously stated, the Board may consider noise measurements in a nuisance noise

claim. The measurements taken by Zak were not taken at the house, but approximately 390 feet

away at the duck pond. The Board finds that the noise measurements are inconclusive, and do

not substantiate or refute whether the interference was substantial and frequent.

 

The complainants have not proven that the noise emissions from Turris’ ventilation fans

substantially and frequently interfere with their enjoyment of life. They have not shown that the

noise in question is anything more than a minor annoyance. The noise in question was

characterized as an aggravation by both complainants. Based on the evidence before it, the

Board finds that noise emissions do not substantially and frequently interfere with the

complainants’ enjoyment of life, and weighs this factor in favor of the respondents.

 

The Social and Economic Value of the Pollution Source

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17

 

In assessing this factor, the Illinois Supreme Court has looked to the number of persons

that the respondent employed and whether respondent is an important supplier to a particular

market. Wells Manufacturing, 73 Ill. 2d at 235-36. The Board has similarly looked to such

factors as the number of employees at a facility and the total wages and taxes that a respondent

paid. Charter Hall at slip. op. 23-24.

 

The complainants do not disagree that Turris has some economic value. Knox Br. at 16.

However, they argue the Board should be cautious about finding social value in the public user’s

participation, as end product consumers.

Id.

Turris argues that it has high social and economic

value, that it employees 215 local people and pays approximately one million dollars per year in

both payroll taxes and state and local taxes. Turris Br. at 25.

 

Discussion

 

In addition to the taxes paid and the people employed, the record indicates that Turris

supplies a number of Illinois municipalities and State institutions with coal. The Board finds that

Turris does have significant social and economic value to the community, and weighs this factor

in favor of the respondents.

 

The Suitability or Unsuitability of the Pollution Source to the Area in Which it is Located,

Including the Question of Priority of Location in the Area Involved

 

Suitability of location is not the only factor the Board examines under this factor. Roti v.

LTD Commodities, PCB 99-19 (Feb. 15, 2001) (Roti) slip. op. 26. The Board also looks to

priority of location; however industry cannot rely on priority of location as a mitigating factor if

emissions are substantially increased. Roti slip op 27 citing Wells Manufacturing 73 Ill. 2d 237.

Thus, the Board examines suitability of the location of the source, priority of location and

whether emissions have increased when weighing this factor.

 

 

Turris’ facility is located in an agricultural area, and is properly zoned. Tr. 188. The fan

was located in its current location, in part, because of the access to roads, and partially because

of the need to be located near pre-existing mine development. Tr. at 168, 202. The

complainants purchased their property in 1975, and have been living there since 1976. Tr. at 15.

Turris did not purchase the property where the fan is located until 1997. Tr. at 24.

 

Discussion

  

 

When weighing this factor, the Board must consider the suitability of the pollution source

to its location, including priority of location. Turris’ ventilation fan is located in an area the

record establishes to be primarily agricultural. Tr. at 188. The record clearly shows that

complainants have priority of location. Although Turris’ facility is suitable to its location, the

complainants’ priority of location cannot be ignored. Accordingly, the Board weighs this factor

neutrally, in favor of neither party.

 

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18

The Technical Practicability and Economic Reasonableness of Reducing or Eliminating the

Emissions, Discharges or Deposits Resulting from Such Pollution Source

 

In considering this factor, the Board must determine whether technically practicable and

economically reasonable means of reducing or elimination noise emissions from Turris’

ventilation fan are readily available to respondent.

See

Charter Hall slip op. at 24.

 

The complainants’ noise expert, Greg Zak, recommended the construction of a structure

over the existing housing of the silencer, the evase, the fan and the attached buildings. Knox Br.

at 19. Zak testified that such a structure would reduce the noise emissions significantly. Tr. at

102, 140. Turris argues that complainants simply gloss over the technical feasibility and

economic reasonableness of Zak’s solution. Turris Br. at 27. Turris contends that the $37,000

complainants posit the structure will cost does not accurately reflect the true cost of the building

Zak is recommending. Turris Br. at 27. Turris presented evidence that the building will likely

cost approximately $470,000. Tr. at 182.

 

Discussion

  

 

The Board finds that the record does not reflect the proposed remedies to be technically

practicable or economically reasonable. The evidence in the record on the cost of the proposed

remedy is vastly divergent. In addition, the evidence suggests that the proposed remedies may

not be technically feasible.

 

Schultz, an engineer for Turris, testified that mine safety regulations prohibit the

construction of anything combustible within 100 feet of the fan. Tr. at 218. Wood, therefore,

could not be used in the construction.

Id.

This would support Turris’ contention that the

monetary figures offered by Zak are inaccurate. Technical issues also exist in that any building

surrounding the fan must be designed and approved to comply with requirements regarding a

potential explosion in the mine. Regulations require that the fan be placed in a certain location in

case of an explosion. Schultz testified that Turris would have to obtain Mine Safety and Health

Administration approval prior to the construction of any building over the fans. Tr. at 185.

 

The Board finds that the remedies suggested by the complainants are not technically

practicable and economically reasonable solutions to the address the noise from the fans.

Accordingly, this factor is weighed in favor of the respondents.

 

Any Subsequent Compliance

 

Under this factor, the Board analyzes the respondent’s attempts to address the emissions

that have led to the alleged violations of the Act or the Board’s regulations. The record shows

that Turris has engaged in substantial remedial efforts to alleviate the noise. After the

complainants notified Turris about the noise complaint, Turris contacted Zak and Schomer to

discuss abatement methodology. Turris made significant efforts to reduce the noise including the

closure of the upcast device, the installation of belting on the fan evase, the installation of steel

plating and additional belting around the evase, the placement of belting on the roof house, and

the installation of a silencer. The record indicates the respondent spent approximately $25,000

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19

trying to resolve the noise issue. Tr. at 179-80.

 

The complainants do not dispute that Turris has attempted to reduce the noise emissions.

Knox Br. at 21. Both complainants agree that Turris took steps that have drastically reduced the

noise from the fan. Tr. at 26, 64.

 

The Board finds that the respondent made a considerable effort to alleviate noise

emissions from the fan, and weighs this factor in favor of the respondents.

 

Summary of Findings on Unreasonable Interference

 

The Board finds that the noise from Turris’ ventilation fan has not unreasonably

interfered with the complainants’ lives. The complainants have not proven that the noise

substantially interferes with their lives. In addition, Turris has significant social and economic

value. No practical solutions that are economically reasonable to alleviate the interference were

evidenced, and the Turris has vigorously attempted to address the complainants’ complaints

about noise. Accordingly, the Board finds that respondent did not violate Section 24 of the Act

and 35 Ill. Adm. Code 900.102.

 

CONCLUSION

 

Based on the record before the Board, the Board finds that the respondent did not violate

Section 24 of the Act and 35 Ill. Adm. Code 900.102, 901.102(a) and (b) or 901.106. The Board

finds that sound emanating from the ventilation fan did not unreasonably interfere with the

complainants’ enjoyment of their lives and property. This opinion constitutes the Board’s

finding of fact and conclusions of law. The Board dismisses the case and closes the docket.

 

IT IS SO ORDERED.

 

Section 41(a) of the Environmental Protection Act provides that final Board orders may

be appealed directly to the Illinois Appellate Court within 35 days after the Board serves the

order. 415 ILCS 5/41(a) (2000);

see also

35 Ill. Adm. Code 101.300(d)(2), 101.906, 102.706.

Illinois Supreme Court Rule 335 establishes filing requirements that apply when the Illinois

Appellate Court, by statute, directly reviews administrative orders. 172 Ill. 2d R. 335. The

Board’s procedural rules provide that motions for the Board to reconsider or modify its final

orders may be filed with the Board within 35 days after the order is received. 35 Ill. Adm. Code

101.520;

see also

35 Ill. Adm. Code 101.902, 102.700, 102.702.

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20

  

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that the

above opinion and order was adopted on January 9, 2003, by a vote of 5-0.

 

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board