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.
    23 —85

    —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
    23
    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
    23
    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

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