las
teSS
POLLUTIu”
ONTstOL
BC
&,t
September 1
1977
ENVIRONMENTAL PROTECTI’)N
AGENCY,
)
)
)
Complainar t
)
)
)
v.
)
Pcr
‘5—492
CITY
OF
HIGHLAND,
Resp
dent
OPINION
AND
ORbER
0)
TN).
BOARD
by
Mr
Dumelle):
MESSRS.
ROBERT
N.
REILAND
AND
GEORGE
V
TINKHAM,
ASSISTANT
ATTORNEY
GENERALS
appeared
on
behalf
~t
Ccmplainant.
MR.
JOHN
P
•
GEISSMAN
appeared
on
bel
f
of
Respondent.
This
action
arote
folsow r~ tre
-
ing
of
a
complaint
by
the
Environmental
Protectior
Age.
j
(tge.~
‘
alleging
that
the
city
of
Highland
(Higaland)
wred
a’t
asr.ct.L..~
generating
facility
which
had
emitted
noise
beyond
it.
oc ndczie.. which
violated
the
limits
imposed
by
Rule
202
of
Chapter
8~
Noise
Regusations.
Ownership
of the facility and
it’
clas
ification
as
a
Class
C
land
use
within the meanirg of Rule 2).
are not in dispute.
Nine hearings were held from July 22 to October 28, 1976.
The Agency’s wit‘iesses consi:ted of three citizens who voiced
their complaints, Ager.c
nnp4oyees who ext”-med noise measurements
in the vicinity of the Hia iland iower plant and the technical and
economic
feasibility
Os
.~npliance,
and
the power plant operator
who described
whic~generating
nits
were
operating
on
the
days
the
noise
surveys
were
taken.
Highland’s
witnesses
consisted
of
the City Manager, the Mayor, a consulting engineer and the City
Attorney who discussed the I’istory and the economics of electric
power generation for the city
Highland argued at
the
hearings
that
the
Agency’ s
noise
survey
reports should not ae
adm.tted
as evidence of any violations
because
they were ‘earsay
and because of what
it
claimed
were
errors
in
the
Agency
‘
5
measurement
techniques.
Highland
argued
that
the
tt~C
;j’j-y
2
Agency had not followed its own procedures or the American National
Standard Methods for the Measurement of Sound Pressure Levels
(ANSI)
as required by Rule 103 of Chapter
8:
Noise Regulations.
Before
these arguments are
considered individually,
some general comments
are in order.
First of
all
the Noise
Survey
Reports were properly admitted
as business records under
ProceCural Rule
326 as it was in effect
at the time of the hearing.
Highiand~s
objections, therefore, can
only go to the weight of this evidence,
In Environmental Protection
Agency v.
Ferndale Hei hts
Utility
~
~975
the Board
ad
occasion to characterizE~
the noise sta;~:~ds.
In its Opinion at
page 22 the Board
stated:
“A different
result is reached here
because of the different
nature of the4noise standard.
The noise standard is an attempt
to establish reasonable levels at
the receiving
proper1~y. Noise
levels are measured
where
received.~
This general concept behind the
noise
standards explains the
language of Rule 103 in Chapter
8
which
states that test
procedures employed by the
Agency must be
in “substantial
conformity” with ANSI standards.
The
2~NSIstandards are not
entirely controlling here.
The Board~srules
are more concerned
with the noise which is being
received on the
neighboring residents’
property.
Highland argued that since some
of the
measurements were
taken at night they were not material to
this
complaint which
alleged violations of Rule 202 daytime standards.
This reasoning
misses the point of the exception stated
in
Rule 208(e)
of Chapter
8.
That exception was explained by
the Board
in Environmental
Protection Agency v,
~1a~~nCorpor~ion,
PCB 75-412,
T~~l~T~Tat
page 27 of the Opinion as follows:
“Rule
208(e) specifically exempts existing property-line-
noise—sources, such as Modern~splant, from those
significantly
lower limits during nighttime hours,
and
instead allows 24—hour
compliance with the Rule 202 limitations.”
(emphasis added)
Highland also argued that the Agency had to show that all of
its measurements were
taken
at least
25 feet from the city
property line surrounding the power plant.
This argument belies
the explanation of the
25 foot requirement which the Board included
in its Opinion adopting the Noise Regulations:
“3)
The
sou ~ pressure levels must
be
measured
within
the
receivlrg
property
but not closer than 2D feet
to
the
prope~ty~line—noise—source.
This
represents
a
significant
departure from the original proposal which
measured so
c pressure levels at the emitters~property
line.
Sirc~the regulation is intended to protect
people frcm ~
pollution, it is approprthte to measure
the
levels
Oil
the receiving property.
This
also
is to
industries benefit in that it allows some atmospheric
attenuation of noise,
Originally,
the measurements were
to be made on or beyond the emitter~sprop ~ty line which,
as brought out in the initial hearings, created problems
of abutting compared with non-abutting property.
The
25
foot provision is intended to set
a lower limit on the
available atmospheric attenuation.
~ good example is a
utility pole transformer located on an easement, classified
as a Cla~sC
loise emitter, adjoining residential property.
In
applying
Rules 202 through 207, sound pressure level
measurements
cannot be taken closer than
25 feet to the
transformer
‘~InThe Matter Of Noise Pollution Control
~~tions,
R 7~~8PCB~7~7Tl976)T
Throughout
the e proceedings
Highland
has
claimed
that
it
is
being
blamed
for no’~ocontributed by
extraneous
noise
sources
in
the
vicinity
of its
power
plant.
The
Agencyts
testimony
shows
that
its
measurements excluded
this
possibility.
Dorothy
Jones,
the
Agency
employee
who
conducted
most
of
the noise
surveys,
explained
her
procedure
before
and
during
her
measurements,
Ms.
Jones
drove
at
nd the vicinity of
the
survey
sites
before
each
test
and
checked
to
see
whether any
businesses
were
operating
which may
have
caused any interference,
(R,6l7)
She
also
testified
that if any traffi~passed close by,
no
measurements
were
taken
until that tra~f
Ic had passed.
(R.
608,
614)
While
she
conducted
the tests,
she liscened for any significant contributions.
Agency
witnesses explained that ambient noises would have to be within
10 decibels of the noise from the power plant, and therefore
audible, before th?re could be any significant
contribution,
(R~309,
1170)
The Agency complied with the requirements of Section 611 of
its own Measureme
it
Techniques for Enforcement of Noise Pollution
Control Regulations,
and it showed that it had
effectively
ruled out the effects of these contributors.
It should also be
pointed out that no admissible evidence was introduced by
Highland to show wtat the effect of these contributing sources
may have
been.
Highland clarmed that the Agency did not take adequate pre-
caution to provide for the effects of any reflective surfaces or
standing
waves ~n the vicinity of its measurements,
The record
shows some confusion as to the proper computation of distance
from the target source
(the power plant)
and distance from
reflecting
sources
but this confusion was finally resolved,
(R.
1131)
The Agency was faced with the dilemma of taking
measurements
which
minimized the
effect of reflective surfaces and yet still
reôorded the
sound as it was received.
The Agency~smeasurements
show that these
conflicting
factors were properly resolved
in its
use
ot
the field method of sound measurement.
(R,
400)
Once again
Highland introduced no evidence to show
that
reflective
surfaces
distorted the Agency measurements.
In fact there
were
some instances
in which the
net
effect of reflective surfaces may
have
been to
reduce the levels of sound measured at some of the sites,
(R.
1135)
Highland asserted that the Agency violated ANSI and its
own rules by
not
measuring
or taking
account
of all atmospheric
conditions.
First of
all,
the noise survey report forms used
by
the Agency
provide that wind speed and
f
~ection, temperature,
relative
humidity and barometric pressuin should be recorded.
All
of the survey
forms admitted into evidence show that these
measurements
were
taken,
In addition,
no evidence was introduced
by Highland to
show that these measurements were inaccurate
or that
the recorded
donditions should have any
effect
on the recorded
measurements.
The Agency testified that wind speed less than
10 miles per
hour has a negligible effect on noise measurement.
(R.
1139)
Highland complained that the Agency did not measure
atmospheric conditions,
including wind gradients,
at a height
of
10 meters above
the ground.
The Agency properly responded that
this data
is not relevant to measurements taken in the near
field
(less than 600
feet)
as these were.
(R,
647)
The height
and location of the microphone which the
Agency
used, as well
as the type of microphone
used
constituted
more
of Highland’s
challenges.
Once again, there
is no evidence that
the Agency~s
techniques resulted in any distortions.
Any
variations from
the ANSI standards
were
characterized
by
the
Agency as
either insignificant or necessary to record the
noise as
it
was received on the residents~property.
(R,
1124)
A great
deal of attention was paid to the location of the
microphone at
some of the sites and its relation to the sidewalk.
There was
evidence that one
of
the microphone
locations
on the
street side of
the sidewalk was city property but the difference
in sound
levels from the city side
of the
sidewalk to the
residential
side has been
demonstrated
as
negligible.
(R,
1196)
While
many noise survey reports were admitted as evidence,
not all of
these reports are relevant to the Board ~s findings
of
violation in
this case,
The Agency’s complaint alleged that
Highland had
violated
Rule 202
beginning on
February 10,
1975
and continuing
to December
19,
1975,
the
date the complaint
was filed.
At
the hearings,
the Agency
indicated that
it
would
amend its
pleadings
to
conform to the proof
of violations
after
December 19,
1975, but no amendment
appears
in the record,
Consequently
only Complainant’s Exhibits
8,
20,
21,
and 22 are
relevant to
a
finding of
violation of Rule
202.
*5—
This conclusion follows the position taken by the
Board in
Environmental Protection A ency v. E&E Hau~~,PCB
74-476
B
7
),
~n
t
at case the Board stated that it cannot
amend a complaint to conform it with the intentions of the
parties, particularly when the Agency could have
availed itself
of the relief available in Procedural Rule 328,
as it was
promulgated at the time of these hearings.
The data in Comp1ainant~sExhibits
8,
20,
21
and
22 that
list sound levels emitted by the Highland Power Plant
and the
relation of those sound levels to the requirements of
Rule 202
can be summarized as follows:
Date
of
Survey Site
Octave Band Sound Pressure Levels
Survey
Number
31.5
63
125
250
500
.1000 2000
4000 8000
(Allowable Sound
(75)
(74)
(69)
(64)
(58)
(52)
(47)
(43)
(40)
Pressure
Level)
~25—75
2—4
95~
84
79
75
69
70
68
67
62
10—24—75
2—2
87
80
75
70
65
64
61
54
44
2—5
88
80
75
70
66
64
62
54
45
4—1
91
84
74
75
67
65
63
57
47
5—1
83
81
66
54
62
56
54
46
38
6—1
93
85
72
62
59
58
54
49
40
6—2
93
85
75
65
61
61
57
51
45
11—19—75
7—.
88
80
67
64
59
58
53
45
35
7—1
88
80
67
65
59
56
52
45
35
7—2
88
83
74
70
62
59
56
50
41
12—4—75
8—1
85
89
79
73
69
68
66
59
51
8—1
82
89
75
71
67
66
65
60
51
These measurements do not represent ideal or optimum
conditions.
Some of the measurements, e.g.
Site 2~4,may have
even
been on city property.
These qualifications however
do not
detract
from the conclusion that the measurements which show
sound
levels
in excess of the limitations imposed by Rule
202
represent violations of that rule.
Wherever the measurement
location
may have been on the city owned side of the sidewalk, the
Agency has shown that the resultant difference in sound level
was
negligible.
Wherever the distance from reflective surfaces
may have been less than ideal, the Agency has shown that
its
location was justified as an attempt to quantify the effect of
the power plant noise on the complaining
~ighborhood residents.
Testimony from three citizens showed that the violations
which
are occurring at the Highland Power Plant are clearly
interfering with the enjoyment of their property.
(R,
49,
64,
76)
There was no e~idencethat anyone’s health was in jeopardy, but
there
were statements to the effect that it was
very
difficult to
relax or
entertain out of doors,
The relationship between
the
residents’ discomfort and the noise emissions from the power
plant
was
shown with testimony to the effect that the problem abated
when
the power plant was shut down.
(R.
50,
65,
78)
The power plant is undoubtedly a very valuable resource.
In
a recent referendum the voters in Highland stated that they
did
not want the power plant to be sold to Illinois Power Company
or
to anyone else.
(R,
885)
The city officials have been unable
to
negotiate
a commitment from Illinois Power that would enable them to
stop using the power plant,
(H
966,
976)
This electric generating
facility provides an essential service in that it guarantees that the
citizens of Highland always have
enough
power.
It became apparent
at
the hearings that the “peak shaving” role which the power
plant played was going to continue indefinitely.
(H,
882,
1038)
There was a great deal of testimony and argument over just
what sort
of area surrounded the power plant.
On
cross examination
the city often characterized
the
area
as
heavily
industrialized
with railroad tracks and a highway combining to make the
area
very
noisy.
The Agency measurements, however, were taken
on
the
residential side of
the plant.
In fact
it was shown that
the power plant property is bounded by homes about as much as
it
is by industry.
Whether the power plant or the neighborhood
came first was not shown by any evidence, but photographs of the
area and citizen testimony indicated that both had been there
for
quite
some time.
Complainant’s Exhibit 47 and the testimony of Mr. John
Paulauskis
analyzed the technical and economic
feasibility
of
compliance. A
long
list
of
improvements
totalling
over
$111,000
was outlined with the qualification that these improvements
probably represented an overkill that would not be necessary.
The Agency recommended that its ~ideasbe taken as
suggestions and
that a step by step approach be used
so that compliance could
be studied along the way and improvements halted when
compliance
was achieved.
(H.
1207)
HighlandVs approach to compliance was totally different.
The
city felt that since the amount of power the plant would
generate in the future was somewhat in doubt,
no action should
be
taken to abate any noise from the plant.
CR,
993)
Ongoing
negotiations with Illinois Power company for a commitment
for more
power were cited as the cityVs compliance plan.
(H,
1008)
Highland’s
feeling was that the noise would be greatly reduced if the plant
simply wasnVt needed and consequently not used.
Since the city has
had peak loads
in
excess
of
16 megawatts and the highest
commitment which had been requested from Illinois
Power Company
was
14 megawatt~s,it was obvious that some power generation at
the plant would be needed, at least
in emergencies.
(H.
978)
Since
the
city
did
not
know
which units at the plant would have to
stay
in operation,
it felt it should not take any action to reduce
noise,
Extensive testimony and documentation were introduced
to
show that the city did not have the money to do any extensive
noise abatement.
The city’s electric fund was portrayed
as
carrying a deficit
(H,
870) and additional bonding was characterized
as
inappropriate.
(H.
919,
942)
Although the type of injury which the citizen witnesses
showed was not severe, it does represent the sort of damage
which
Rule 202 was designed to correct.
The uncertain future
of the power plant coupled with the voters
wish to maintain
ownership show that some corrective action is necessary,
There
is no indication that the neighbors are fleeing from the
area,
Consequently, the trend of violations cannot be allowed to
continue.
The city’VS present approach
to noise abatement represents either
a misunderstanding or a disregard of the purposes of the
BoardVs Noise Regulations.
Highland cannot continue to plan
for its future energy needs without including the costs
of
noise
abatement.
Negotiations
with
Illinois Power Company have
involved
many years of litigation and the record shows that the end
of the bargaining
is still not in sight.
Since the subject of
this action is enforcement of Rule 202 and the Board
is not
satisfied with the CityVs present posture on compliance,
a
penalty of $1,000
is appropriate to aid in the enforcement of
the Act.
This
Opinion
constitutes the BoardVs findings of fact
and
conclusions of law in this matter,
~z~7
—3~/~•5
ORDER
~
!clution Control Bo~t~
I.
“~v~
v
•
ud
sh~l~.
~a~c~ci
inzncdia~e
act
eaq~g~~
~.
a~itiednoiae abatemen
~
this Order.
2~
~
~
~.e
date
a qualified cor
enqag ~d ~e
V
H
h~a:.
shall c3e’~iopa bte,
cornpli~x)
~
r’Z~ ;h~’lbe submitted
to
the
St
EnvJrcr~ta’
c
t~n ~qency, Division of Noise
Contxo~
~ui
3,
Witr:~r.
the date the Agency appro~c
City
of ~
~
~tpiianceplan, the City shall
desist any v~ac~~
~f Rule
202 of
the
Board’s Nul
Pegulatlo
S
4,
W~tlin
‘1
da~s
~he date of
this Order
the
3
High1~and :ha~~
a ~ne
of $1,000 by certified ~
money or~erpay~hIe
-‘
SLe
ci ~
EnvI. cn~~n
cation Agency
Fisc~
I
a
220~ d’
Epr~.fi~’~ ~nois
62706
1,
~
J~ffett Clerk of the Illinois
bc~
a
‘~
that the
ab ye
Opinion
and
Oa~
adopted on ~c
~~day
of
1977 ~
____
‘if
Christan L, Moffett,/~4t~
Illinois Pollution C ttc.~
or tro’
c2i-~N