ILLINOIS POLLUTION CONTROL BOARD
July
22, 1976
ENVIRONMENTAL
PROTECTION AGENCY,
Complainant,
v.
)
PCB 75-89
TABOR and CO..,
Respondent.
Ms. Marilyn B.
Resch, Assistant Attorney General, represented
complainant.
Mr. John E. Fick represented respondent.
ORDER AND OPINION OF THE BOARD
(by Dr.
Satchell):
This matter comes before the Pollution Control Board
(Board) upon a complaint filed by the Environmental Pro-
tection Agency
(Agency) on February 24,
1975 and an amended
complaint filed May
16,
1975.
In two counts the Agency
alleges that Tabor and Co.
since August 10,
1973 up to the
filing of the complaint including seven named dates violated
Rule 202 of the Noise Pollution Control Regulations
(Regulations),
Section
24
of the Environmental Protection act
(Act)
and Rule 102
of the Regulations.
Respondent filed an answer on March 31,
1975
denying the alleged violations.
The hearing was held on June
3,
4
and
5,
1975 in the Town Hall in Tallula,
Illinois.
Prior to dealing with the merits of this case the Board
must make several rulings.
The hearing officer left to the
Board rulings on three different matters.
The first matter is
the Respondent’s offer of proof concerning
Mr.
Fick’s question,
whether the third page of Complainant’s Exhibit 10 shows
a
violation in the 2000 Hz,
4000 Hz and 8000 Hz octave bands
(R. 280 to 283).
The basis of the objection was that Respondent
had repeated the questions several times receiving a negative
answer each time.
The Board finds that Witness Paulauskis’
final agreement to a positive answer to the question is suf-
ficient to allow the disputed question in the record.
The second matter is
a joint motion by Respondent and
Complainant to strike from Paragraph
6 of Count
1 of the
complaint the reference to November 29, 1973 for want of
proof
(R.
361).
This motion is granted.
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—2—
Thirdly, Complainant objects to Respondent’s Exhibit 13,
a petition to the Pollution Control Board,
on the grounds
that the signatures on the petition have not been authenti-
cated and its admission is hearsay.
Counsel for Complainant
is correct in that this is not normally admissible evidence,
there is no verification of the 268 signatures.
The Board
will allow the petition to remain part of the record for what
value it may have in consideration of Section 33(c)
of the
Act.
The Petition to the Board was evidently drawn up to
propose
a regulatory change in allowable emissions
from grain
elevators;
however, the petition does not meet the necessary
requirements of Procedural Rule 203.
To propose a regulatory
change, ten copies of the proposed text of the change must
be filed with the Clerk of the Board.
Respondent’s Exhibit 13
has no suggested text and was not filed properly.
Unless re-
submitted in the necessary form the Board cannot consider the
petition as a regulatory proposal.
Respondent has an elevator in Tallula,
Illinois.
Tallula
is
a village of approximately 650 people located in Menard
County.
The elevator has through put of over a million bushels
of grain per year
(R.
406).
Tabor and Company leased the
elevator in 1971 and purchased the elevator for $225,000 in
1972.
The drying season when the noise problem arises
is from
October through December
(Joint Ex.
#1).
There are several issues to be resolved in this case.
These include classification of the land involved,
the
validity of the noise measurements and the application of
Rule 209(c)
of the Noise Regulations.
In the complaint the Agency alleges violation of Rule 202.
Rule 202 deals with noise being emitted from a class
“C” land
use to a class
“A”
land use as designated by the Regulations.
The Regulations use the Standard Land Use Coding Manual
(1969,
United States Government Printing Office) which designates land
activities by means of numerical codes
(hereinafter SLUCM).
It
is Respondent’s contention that the SLUCM code has no classi-
fication for country grain elevators and that the Tabor
elevator is unclassified and without regulation.
The Board
finds this argument to be without merit.
Class
“C” generally
denotes industrial use.
All agriculture and agricultural
related activities are classified as
“C” land uses.
According
to the SLUCM designations codes
811 through 829 are agriculture
or agricultural related activities.
Under the later category
are included ginning, milling, shelling, baling, threshing
and all other agricultural processing services.
Although
grain elevators are not specifically listed they would be
included in “other agricultural processing services..”
23 —86
—3—
Respondent further contends that the receiving property
is not land of class
“A” use.
The chief complainant to the
Agency in this case was Joseph Feagans.
Most of the noise
measurements by the Agency were taken from the end of the
sidewalk in the Feagans’ back yard.
The Feagans live in
this house.
Mr. Feagans also runs a two-way radio business
in a separate building at the rear of his house
(R.
157).
The noise caused him to move his service area to the front
of the house
(R.
159).
Respondent contends that because of
Mr. Feagans’ business his property is a class
“B” land use
and is not covered by Regulation 202.
The Board rejects
this contention.
At the time of adoption of the Noise
Regulations,
the Board recognized in its adopting opinion
that “land use
is not necessarily co-extensive with land
ownership..”
Included as an example was a high rise apartment
building,
“where the apartments themselves are class A uses
while ground level businesses are class B uses,” in the matter
of Noise Pollution Control Regulations, R72-2,
8 PCB 703,
726
(1973).
In the present situation Feagans’ business
is class B
but his residence is class A.
It should also be noted that
the Feagans are surrounded on all sides but one, the north-
west where the Tabor elevator is, by other residences or
class A uses.
Thus Feagans’ property would come under the
“C to A” classifications of Rule 202.
The Agency also took
measurements at the Kern,
Sanders and Pond residences,
“A”
classifications.
As these measurements were taken from
receiving class A land and not less than 25 feet from the
property-line-noise—source, the measurements are valid for
showing violation of Rule 202.
The Agency found C to A
violations as follows:
Kern Residence
November 27,
1974
(Comp.
Ex.
14)
Feagans Residence
November 6,
1973
(Comp.
Ex.
3)
October 16,
1974
(Comp.
Ex.
22)
November 1,
1974
(Comp.
Ex.
8)
November 15,
1974
(Comp.
Ex.
11)
November 22,
1974
(Comp.
Ex.
13)
Sanders Residence
November 1,
1974
(Comp.
Ex.
10)
November 22,
1974
(Comp.
Ex.
13)
Pond Residence
November 1,
1974
(Comp.
Ex.
9)
November 22,
1974
(Comp.
Ex.
13)
Respondent as a defense is claiming that Tabor and Co.
comes under the delayed compliance date of Rule 209 (c).
Rule 209(c) provides that any owner or operator of an existing
property—line-noise—source which exceeds any allowable octave
band sound pressure level of Rule 202 by 10 dB or more in any
octave band with a center frequency of 31.5 Hertz,
63 Hertz
or
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—
87
—4—
125 Hertz shall comply with the standards and limitations
of Part
2 of the Chapter on or after eighteen months from
the effective date of the Noise Regulations.
The date of
compliance would then be February 10, 1975.
All the Agency’s
allegations and measurements were before this date; thus,
Respondent would have
a complete defense.
In Respondent’s attempt to rely on the delayed compliance
date Respondent has attempted to invalidate
the Agency’s
measurements, because none of the Agency’s measurements show
more than a 10 dB violation in any of the applicable octave
bands.
Of the several points discussed concerning the method
of measurements none were of enough significance to cause the
Board to doubt the accuracy of the Agency’s measurements.
The
Agency did not take the barometric pressure
(R.
233) which
could possibly affect the calibration of the measurement
equipment
CR.
234).
However, the Agency’s readings were
generally for two minutes
(Comp.
Ex.
7,14).
Respondent’s
expert on noise measurement has never seen the barometric
pressure drop enough in
a two minute or ten minute period to
affect the readings
(R.
583).
David Eby the Respondent’s noise measurement expert
came up with two readings more than 10 dB greater than the
allowable limit in the 125 Hertz octave band.
In this octave
band Rule 202 allows
69
dB.
Mr.
Eby measured one reading in
the octave band at
85 1/2 dE and another at 79 1/2 dB
(Resp.
Ex.
14,
23 and 46).
The prior reading does not show a Rule 202
violation.
This reading was not taken from class A land.
Mr.
Eby took the measurement from the road to the northwest of the
elevator
(R.
568).
This would be an unclassified area and not
subject to Rule 202.
The 69.5 dB reading was
a C to A reading.
However there
is some question as to whether this reading which
is 10.5 dB greater than the limit is
an acceptable reading.
The drying season is approximately October through
December
(Joint Ex.
1).
The Agency picked days at random with-
in this time to take noise measurements
(R.
92).
The Agency
did not take any measurements with all the equipment running
(R.90).
Mr.
Dale Royer, manager of the Tabor elevator at
Tallula, testified that the dryer ran 25 percent of the drying
season
(R.
498); however,
he did not state that all the equip-
ment was ever run all
at one time.
Mr.
Eby’s 79 1/2 dB
measurement was taken with the whole elevator running,
less
eight auxiliary- fans
(Resp.
Ex.
14 at 46).
This measurement
was taken under experimental conditions on January 7, 1975
CR.
560, 571).
Equipment was being turned off and on for
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—
88
—5--
Mr. Eby
CR. 475,
571).
Mr. Eby’s measurements would not be
typical of the regular drying season.
The Board also notes
that by January
6 the trees and ground would be largely devoid
of leaves and foliage which would increase the amount of
reflective surfaces which in turn increase the decibel level
of noise measurements.
Under Rule 104 of the Noise Regulations, Respondent has
the burden of persuasion or responsibility of showing that
the delayed compliance date of Rule 209(c)
applies to Tabor
and Co. at Tallula,
Illinois.
The Board is not persuaded
that Respondent under normal conditions clearly violates the
Rule 202 limits by more than 10 dB in the applicable octave
bands.
The Board finds that the eighteen month delayed com-
pliance date of Rule 209(c)
is not applicable to this case.
Tabor and Co.
is found to have violated Rule 202,
and thereby
Rule 102 of the Noise Regulations and Section 24 of the Act.
In determining what if any penalty should be assessed
the Board must consider the factors listed in section 33(c)
of the Act.
First to be considered is the character and
degree of the injury.
That injury has and does occur from
noise was acknowledged by the General Assembly in Section 23
of the Act.
At the adoption of the Noise Regulation there
was testimony as to the damage noise can do,
In the Matter of
Noise Pollution Control Regulations,
supra at 714.
Noise can
cause hearing losses, both temporary and permanent.
Noise can
interfere with speech, be annoying and affect the mental and
motor performance of individuals,
Id.
at 714,
716.
The Feagans
testified concerning the interference with their
lives mostly
in terms of loss of sleep and annoyance
CR.
149-171)
as did
several other citizens of Tallula.
The irritation
arid
annoyance
to the personal well being of the citizens of Tallula living
close to the elevator is quite high during the three months
of the drying season.
During this time of annoyance
is also when the grain
elevator with the dryer is of the most value to the farming
community within the five mile radius of Tabor and also to
the citizens of Tallula who work at the elevator and provide
services to the farmers of the area.
Farmers need ready
access to elevators to allow them to harvest
in good weather
conditions and to store their grain safely.
The grain is
harvested at various moistures and must be dried sufficiently
to avoid growth of molds and fungi
(R. 412).
During the
harvesting season a dryer may have to run continually to allow
farmers to store all they can while good weather prevails
(R.
416).
23—89
—6—
It is apparent that this function is of extreme importance
to a small rural village such as Tallula.
The importance of
Tabor to the community is further documented by the 268
signatures on a petition requesting the Board not to impair
the functioning of Tabor elevator
(Resp.
Ex.
13).
It is apparent that the pollution source is suitable to
the area particularly in terms of ready access.
Approximately
half of the silos at Respondent’s facility have existed in
their present location since around 1900
(Joint Ex.
1).
The
grain dryer was added in 1968
(Joint Ex.
1).
As of May 31,
1974 the total net fixed assets of Respon-
dent’s elevators and equipment at the Tallula location represented
an investment of $375,335.60; total building and equipment at
said location had a value of $348,310.37; the average yearly
net profit at said location is $50,000
(Joint Ex.
1).
On a
yearly basis Respondent’s facility handles approximately one
million bushels of grain
(Joint Ex.
1).
On April
10,
1975,
Dale G. Royer, Manager of Tabor at Tallula, wrote the Attorney
General’s office stating that Tabor had spent $65,234.34 on
reduction of noise
(Resp.
Ex.
11).
This figure was later
amended to $73,015.52
(R.
504).
At the hearing
it was pointed
out that the primary purpose of the filter system was to collect
dust
(R.
501), and that the system may actually increase the
noise
(R.
502).
Many of these “improvements” were made without
consulting noise experts and the filter system was purchased
on the advice of the contractor
(R.
501,
502).
Subtracting
the cost of the filter system Tabor has spent approximately
$17,000 on noise abatement
CR.
505).
On May
28,
1975 from the George A. Rolfes Company an
offer was accepted by Tabor and Company.
This contract to in-
stall noise abatement equipment and fixtures
is to bring
Tabor and Company into compliance with the Illinois Noise
Regulation within 180 days of acceptance of the offer.
These
improvements will cost Tabor $64,105.
A good deal of time was
spent at the hearing discussing the cost of a 38 percent re-
duction in drying capacity
(determined by the Agency,
(R. 71).
The Rolfes contract does not indicate there will be any such
reduction.
The existence of this contract in itself is evidence
that compliance
is technically feasible and enconomically
reasonable.
The Board does find Respondent in violation of Rules
102
and 202 of the Noise Regulations and Section 24 of the Act.
In considering a penalty it is clear that there has been injury
to the citizens of Tallula in dealing with the effects of the
noise.
However,
it is also clear that the elevator is of
great importance
to the community.
Respondent has investigated
and gone ahead with measures to abate the problem.
23
—
90
—7—
The Board notes that Tabor sought aid in noise abate-
ment from the Brunswick Corporation, Fansteel, the Aeroglide
Company and the George A. Rolfes Company.
Only the George A
Rolfes Company made an offer which was accepted with alacrity.
The elevator has spent, or contracted to expend, well
over $130,000 in an effort to reduce noise and emissions
from its elevator
(Respondent’s Brief at 39).
Since these
monies were apparently expended as soon as management was
convinced such expenditures would offer relief, the Board does
not find Respondent unduly dilatory.
The good faith shown by Respondent and the expenditures
made to achieve compliance without increasing capacity or
productivity, and the fact that environmental harm has been
minimized,
convinced the Board that a penalty would not,
in
this case, aid enforcement.
This Opinion constitutes the Board’s findings of fact
and conclusions
of law.
ORDER
It is the Order of the Pollution Control Board that:
1.
Tabor and Company is found to have been in violation
of Rules 102 and 202 of the Noise Regulations and
Section 24 of the Act.
2.
Tabor and Company shall cease and desist from all
future violations of the Regulations or Act.
I, Christan
L. Moffett, Clerk of the Illinois Pollution
Control Board, hereby ce~1~fy
the abov
Op1 ion and Order
were adopte~on the
~
day of
______________,
1976 by
a vote of
,~‘..Q
Christan L. Moffett,
C ~4()
Illinois Pollution Con~~Board
23—91