ILLINOIS POLLUTION CONTROL
BOARD
July 10,
1975
ENVIRONMENTAL PROTECTION AGENCY,
)
Complainant,
vs.
)
PCB 74—291
)
FERNDALE HEIGHTS UTILITIES CO.
)
Respondent.
STEPHEN
WEISS,
Assistant Attorney General for the EPA
DANIEL
KUCERA
and JOHN VANDER VRIES, Attorneys for Respondent
OPINION AND ORDER OF THE BOARD
(by Mr. Henss):
The Environmental Protection Agency filed its Complaint
alleging
that Ferndale Heights Utilities Company has allowed
the
emission of sound beyond its property boundaries so as to
cause noise pollution in violation of Rule 102 of the Illinois
Noise
Regulations and Section 24 of the Environmental Protection
Act.
The violations allegedly occurred on each day of Company
o~rationbetween August 10,
1973 and August
6,
1974.
ifl
lieu
of protracted litigation the parties have sub-
:~it~d
Stipulations of Fact and their separate written arguments.
A3 ~tai1ed
in the Stipulations, Ferndale Heights Utilities
Company
was organized as
a corporation in 1957 for the purpose
of providing public utility water and sanitary sewer service.
The
Illinois
Commerce Commission issued Respondent a Certificate
of
Public
Convenience and Necessity on January
6, 1959 which
authorized Respondent to provide water and sanitary sewer
services in various areas, including what is now known as
Pinehurst Manor Subdivision.
This subdivision surrounds on
three sides,
Respondent’s Long Grove Road pumping station.
On Respondent’s initial wells, which were situated on
another plot in Palatine,
Illinois, the pumps were driven by
electric motor.
From 1959 through 1969 frequent and long
lasting outages of electricity deprived Respondent of any source
of power for the pumping of water.
During such outages
Respondent’s elevated tank would empty and water service would
be interrupted.
18—12
—2—
To eliminate the problems caused by such outages Respondent
designed and constructed the Long Grove pumping station in 1969.
The pump at this station was equipped with a natural gas driven
engine to ensure that the operation would not be affected by any
electricity outage.
The Long Grove pumping station was con-
structed in accordance with a permit from the Illinois Department
of
Public Health.
Since
construction
of
the
Long
Grove
pumping
station,
Respondent
has
been
able
to
provide
a
constant
reliable
supply
of
water
for
its
2500
customers,
including
the
approximately
400
customers
in
Pinehurst
Manor
Subdivision.
The
continued
operation
of
the
Long
Grove
Road
pumping
station
is
absolutely
necessary
for
the
purpose
for
which
Respondent
was
organized
and
in
the
public
interest.
On
October
10,
1973
the
Agency
informed
Respondent that
complaints
had
been
received with respect to noise emanating
from the
Long
Grove
Road pumping station.
Five days later
Respondent retain~
Fletcher
Engineering
Company
to
investigate
che noise
problem.
The
Agency
advised
Respondent
on
November
2,
1973
that
tests indicated the noise problem appeared only in the
high frequency ranges above 500 Hz.
On June 1,
1974 Respondent retained the Edward
D. Newell
Company
to design,
fabricate and install materials at the pumping
3tatlon in order to reduce the amount of noise.
Respondent be-
lieved that the Newell Company would immediately take steps
to
install
the
materials which Newell represented would satis-
factorily perform the task.
Complaint was filed about two months
later,
At no time prior
to the filing of the Complaint was Re-
sponden-t
advised as to
what emission control levels the Agency
was requiring.
Respondent assumed that the applicable standards
were
those
contained
in
Part
2
of
the
Noise
Regulations.
Two
days
after
the
Agency’s
Complaint
was
filed
Respondent
learned
that
the
Edward
D.
Newell
Company
had
halted
all
operations
in
its
noise
control division.
Respondent then retained J.
N.
Fauver Company Inc.
to immediately design, fabricate and install
the noise control facilities that will be described later in this
Opinion.
The Agency advised Respondent on September
6,
1974 that the
Agency sought a reduction in noise down to
a level which would
be twice the ambient noise level
in the area when the pump engine
is not operating.
The exact requiremenbs within each sound band
to meet such noise levels were also specified on that date.
Respondent was advised by its engineering consultant on
18—13
—3—
September 11,
1974 that there might be a problem in meeting
such levels in the low frequency band of 31.5 Hz.
Respondent is charged with
a violation of Rule 102 of
the Noise Regulations.
Rule 102 states:
“No person shall
cause
or allow the emission of sound beyond the boundaries of
his
property
so
as
to
cause
noise
pollution
in
Illinois,
or
so
as
to
violate
any
provision
of
this
Chapter
or
the
Illinois
Environmental
Protection
Act.”
Noise
pollution,
as
defined
in
Rule
101(j)
is
“the
emission
of
sound
that
unreasonably
inter-
feres
with
the
enjoyment of life or with any lawful business
or
activity”.
A
violation
of
Section
24
of
the
Environmental
Protection
Act
is
also
alleged.
Section
24
of
the
Act
states
that:
“No
person
shall
emit,
beyond
the
boundaries
of
his
property,
noise
that
unreasonably
interferes
with
the
enjoyment
of
life or with
any
lawful
business
or
activity,
so
as
to
violate
any Regulations
or
standard
adopted
by
the
Board
under
this
Act.”
Under
terms
of
the
Stipulation
testimony
of
twelve
citizen
witnesses was introduced,
seven for the Agency and five for
Respondent.
Ronald and Sharon Stander have resided at 844
Holly
Way
(Lot 256)
in Palatine for about
8 years.
About
3 ~1/2
years ago the Standers began hearing a noise from the pumping
station which was built
9 feet from their property line.
This
noise starts out in a low pitch then picks up to a high pitch
loud, whining noise.
It can be heard inside and outside their
house
all
hours
of the day and night.
During a
24 hour period
th~noise may be experienced
S times with a duration of
1 to
2
hours.
The
Standers described the noise
as
“a source of great
irritation”
which
has
forced
them to shut windows and forego
the
use
of
their
backyard
for
relaxation
and entertainment.
The
noise
has
many
times
awakened us from sleep at night”.
June
Burger
and
Joyce
Brundage
moved
into
a
house
at
838
Holly
Way
(Lot
257)
on
April
15,
1974
unaware
of
any noise from
the
pumping
station.
On
that
date
they
became
aware
of
“that
great
source
of
irritation”.
They
experience
the
noise
about
six
times
in
a
24 hour period.
The
sound
appears
to
last
longer
during
the
summer
months.
Noise
coming
from
the
pumping
station
50
feet
from
their
house
sounds
to
them
like
“ten
air
conditioners
running
at
the
same
time”.
They
have
been
awakened
by
the
noise
when
windows
were
open
and
once
or
twice
in
the last year when
the
windows
were
closed
and
an
air
conditioner
running.
They
are unable to have patio parties because of the noise.
18—
14
—4—
Thomas
J. Pastrnak first noticed the noise after he moved
into his house at 832 Holly Way
(Lot 258)
about
1 year ago.
This noise disturbs him when he
is engaged in conversation
outside his house.
The “whining and pumping sound” has caused
him to go inside and close his windows five times during the
past summer.
Thomas Pierson, of 1937 Long Grove Road
(Lot
255) heard a
“raspy, unclear noise” coming from the pumping station when he
moved into his house on April 14,
1974
and
has continued to
hear this noise ever since.
The noise was almost constant
last summer.
It
goes
on
and
off
during the other seasons.
The
“pump-pulsating, throbbing” noise can be heard inside his house
even when windows are closed,
He cannot lounge or entertain
guests in his yard because of the noise.
Mary
A. Consoer has lived at 807 Gardenia
(Lot 254)
for
about
5
years.
About
3 years ago she first noticed
a noise from
the pumping station that she described as
“a lawnmower running
all day
directly under my window”.
She hears this noise every
day of the week,
24 hours a day except for a period of one
to
two hours when “it’s off”.
She is awakened from sleep “at least
once
a
week”.
The
noise
“has
been
a
source
of
irritation”
for
her
inside
her
home.
She
has
had
difficulty
talking
on
her
telephone or watching television and the noise prevents her
from
enjoying her backyard patio.
Raymond Joos occupied a residence on Lot 255 from prior to
1970 until April
15,
1974.
The pumping station is about 10
~eet.from the property line of Lot 255 and about 40 feet from
the
former
Joos residence.
Although Joos was aware of the
pur~ing
operations during his residency,
at no time during his
~ocuoancy
of residence and property was he bothered or annoyed
b~i
sounds,
noise or vibrations from the well house.
Another former resident of the area,
Robert Winstead,
occupied
a residence on Lot 258 from prior to 1970 until
August 28,
1973.
The pumping station is about 125’
from the
property line of Lot 258 and about 175’
from the former Winstead
residence.
Aware of the pumping operations, Winstead was never
bothered or annoyed by sounds, noise or vibrations from the well
house during his occupancy of residence and property.
Frank Keraly has occupied a residence on Lot 252 since
1970.
The well house is
located about
200’ from his property line and
about
250’ from his house.
Keraly is aware of the pumping
operations but has never been bothered or annoyed by sounds,
noises or vibrations during his occupancy of residence and
property.
18—
15
—5—
Robert Brown occupied a residence on Lot 257 from prior
to 1970 until November 1,
1972 at which time Robert Pryun
became the occupant.
Pryun occupied the residence from
November 1972 until April
16,
1974.
Pryun is the brother of
Sharon Stander whose present property is adjacent to the
former Pryun property with residences about the same distance
from the well house.
Both Brown and Pryun were aware of the
pumping operation but neither was bothered or annoyed by
sounds,
noise or vibrations during occupancy of the residence.
The Agency contends
that the stipulated testimony is con-
clusive proof that Respondent is guilty of causing noise pollution.
The Agency believes that testimony of Respondent’s witnesses
is not inconsistent with testimony of Agency witnesses and,
in
fact, may “fairly be described as supporting violations”.
¶~woof Respondent’s witnesses said only that they were not
bothered in their “occupancy of such residence”.
The Agency
asserts
the testimony of Brown and Pryun do not account for the
possibility that the noise did bother or annoy them when outside
their residences.
Respondent states that the Agency’s attempt
to inject this “semantical difference”
into the testimony should
be viewed as
a false distinction.
Respondent argues that it was
the intent of each witness and the intent of counsel for Fern-
dale
in
preparing that portion of the testimony to show that the
“reference
is to anywhere on the witnesses property, whether it
be
within the home or outside”.
Responding to these arguments
the Agency asserts that Respondent is attempting to change the
statements
of its witnesses by representing as fact what it
hoped its witnesses intended.
Also stipulated by the parties was the testimony of Robert
Gc~J~ng,a sales engineer with the J.
N. Fauver Company,
Inc.
Ooiaing was ordered to design, fabricate and install devices and
materials described in a compliance program agreed to by the
two
parties in this proceeding.
In his opinion,
the fabrication and
installation of such devices will reduce high frequency sounds
from the pumping station to no more than
3 db over ambient sound
levels at agreed distances from the pumping station.
In
addition, low frequency sound in the 31.5 Hz. band will be re-
duced
to
69 db or less as required by the stipulated compliance
program.
The last witness for Respondent was Ray Di Vito, an officer
of Ferndale Heights Utilities Company and supervisor and manager
of Long Grove pumping station.
Di Vito attends the pumping station
daily.
The gas-driven engine
is very efficient in terms of cost
of operation and has reduced the operating expenses of Respondent
which are ultimately borne by Respondent’s customers.
18—16
The
Company
was
not
advised
until
the
conference
of
September
6,
1974
that
the
Agency
was
recommending
a
reduction
of noise with the pump engine
in operation down to just
3 db
in excess of the existing ambient noise levels in the area
without the engine in operation.
Such “standards” had never
been published or made available to the Company by Pollution
Control Board decision, court decision,
or otherwise.
The
Company does not believe it should be charged with compliance
with “standards”
of which it had no knowledge.
Di Vito said Ferndale Heights Utility Company has
sufficient available assets with which to make prompt payment
of all sound reducing facilities which have been recommended
by the J.
N. Fauver Company,
Inc.
From 1965 until
1971 Di Vito lived in a residence about
850 feet from the Long Grove pumping station.
At no time was
he
able
to
hear
the
gas
engine
in operation from outside his
residence.
He
is
unable
to
hear
the
engine
pump
operating
from
immediately
outside
of
the
station
when
he
is
inside
a
vehicle
with
the
windows closed.
In
his
opinion,
no
unreasonable
noises
or
vibrations
come
from
the
Long
Grove
pumping
station.
Exhibit
B
of
the
Stipulation
is
a
letter
dated
October
10,
1973
from
Major
Hearn,
Jr.
of
the
Agency
to
Ray
Di
Vito
of
Ferndale
Heights
wherein
the
Agency
advises Ferndale that noise
measurements
taken
on
September
24,
1971,
October
4,
1971,
May
4,
1973
and
August
22,
1973
indicated possible violations of Rule
102
of
the
Noise
Regulations.
Subsequent
correspondence
between
the
Agency
and
Ferndale
show
that
Ferndale
was
supplied
with
all
noise
testing
results
and
a petition containing over 150
signatures
of
area
residents
(Exhibits D
& E).
Exhibit H
of
the
Stipulation
is
the
only
data
submitted
to
the
Board
by
either
party as to noise levels prior
to this
legal
proceeding.
This
Exhibit
is
a
no~Se survey
report
of
measurements taken by the Agency on April
30,
1974
at
two
sites
near the Long
Grove
pump
house.
Site
one
was
located
25’ north-
east of the pump station and 112’
northwest of the Stander
residence.
Site two was located 12’ northwest of the Stander
residence at a point 118’
east of the pump house.
Readings
taken on this date as compared to Rule 202 are as
follows:
18—il
—7—
Sound in
Sound
in
Octave
Rule
202,
Site
I
EXCeSS
of
Site
II
Excess
of
Band,
Hz
db
db
Rule
202, db
db
Rule 202, db
31.5
75
80
5
55
63
74
73
60
125
69
66
53
250
64
62
43
500
58
62
4
40
1000
52
63.5
11.5
43
2000
47
62.5
15.5
38
4000
43
58
15
29
8000
40
53.5
13.5
20
After
discussions
with
the
Attorney
General’s
office
and
representatives of the Agency on September 6,
1974, Respondent
stipulated and agreed to make a number of changes at its Long
Grove pumping station.
These items include:
A.
By November 30,
1974 Respondent will have completed
construction and have in operation:
1)
Hoods over all windows,
doors and louvers.
The
hoods will have a deflector plate and will have
1 inch
of embossed foam on all inside surfaces.
See Exhibit
No.
J
for
typical
sketch
of
hood
design;
2)
Insulation
of
wood
penthouse
with
1
inch
of
embossed foam; and
3)
Lagging material around the muffler.
B.
By December
30,
1974, Complainant will have taken
sound measurements while the Respondent’s water pump was
operating at both high and low modes.
One group of measure-
ments will have been made at a point near the closest
residence.
A second group of measurements will have been
made at a point 25 feet from the property line of the Re-
spondent upon which the alleged noise was located.
Also,
by December
30,
1974 Complainant will have interviewed all
of those citizens who testified on behalf of the Agency
(see paragraphs
13(a)
through 13(e)
inclusivel,
or their
transferees where such citizens may have moved, to see
if
there were noise emissions from Respondent’s property that
unreasonably interfere with the enjoyment of life or with
any lawful business or activity.
18—18
—8—
C.
If there are no noise emissions from Respondent’s
property that unreasonably interfere with the enjoyment of
life or with any lawful business or activity or if the
sound measurements are below the octave band sound pressure
levels
(db)
as set forth below then no additional work is
to be done by Respondent except that Respondent must not
exceed these levels in the future:
ALLOWABLE* OCTAVE BAND SOUND PRESSURE LEVEL
(db
re
20
u
N/rn2)
Frequency
(Hertz)
31.5
63
125
250
500
1000
2000
4000
8000
Measured at Residence
——
63
56
46
43
46
41
32
23
Measured at 25 Feet
from Respondent’s
Property Line
69
-—
--
-—
--
——
--
--
--
*Aijowable means those measurements of sound which, based
upon medical and technical reports and opinions should
not create an unreasonable interference with enjoyment of
life or with any lawful business or activity.
D.
If there were noise emissions from Respondent’s
property that unreasonably interfere with the enjoyment of
life or with any lawful business or activity or the allow-
able sound pressure levels were exceeded in Paragraph B above,
then by March
1,
1975 Respondent will have completed the
installation of acoustically absorptive material on the
inside
of
the
pump
house
building.
E.
By
April
1,
1975
Complainant
will
have
again
completed the procedure as set forth in Paragraph B above.
Respondent again may rely upon Paragraph C above.
F.
If there were noise emissions from Respondent’s
property that unreasonably interfere with the enjoyment
of life or with any lawful business or activity or the
allowable sound pressure levels were exceeded in Paragraph
E above, then by April
15,
1975 Respondent will cease the
operation of the gas engine.
A recent Stipulation of the parties states that Respondent
has completed the work on its pumping station; that EPA repre-
sentatives then measured sound
at
the
nearest
residence;
that
the
sound was for each frequency measured within the limits which had
been agreed upon
(See Table above);
and that Res~ondent
is now in compliance with the requirements of the prior Stipulation.
18—
19
—9—
The recent sound measurements continue to show that sound
levels at the residence are lower than the standard which has
been established by Rule 202 of the Noise Regulations.
Before proceeding with our determination of the substantive
issue of this proceeding, we must dispose of several disputes
regarding interpretation of Noise Regulations and the Environ-
mental Protection Act.
Ferndale first contends that:
A.
The Board should find no violation of the Act
because Rule 102
as interpreted and applied by the
Agency is contrary to law,
B.
The Board cannot find a violation of Rule 102
because a violation of Section 24 of the Act requires
a violation of Rule 202, and
C.
If any Rule
is applicable to Ferndale, it is
Rule
202.
In particular, Ferndale contends that the Agency has in-
correctly interpreted the Act and Noise Regulations by taking
the position that Ferndale is subject to enforcement actions
under Rule 102 regardless of compliance with Rule 202.
Ferndale
claims that if the Rule 202 numerical limitations are an effort
to identify noise which is unreasonable interference then such
numerical limitations are also applicable to Rule 102 which is
a
ganeral
prohibition against noise which unreasonably inter-
feres.
Ferndale reads Sections
24 and
25 of the Act together.
~cctson 25 of the Act, in part,
states:
“The Board shall, by
Regulations under this Section, categorize the types and sources
of noise emissions that unreasonably interfere with the enjoyment
of life,
or with any lawful business, or activity, and shall
prescribe for each such category the maximum permissible limits
on such noise emissions.”
Based upon Sections
24 and 25 of the Act, Ferndale argues
that the numerical standards of Rule 202 constitute the “maximum
permissible limits” of interference referred to in Section
24 and
thus
a violation of Section 24 requires
a violation of Rule
202.
Continuing, Ferndale claims that the Act is clear on its face
that, unlike the areas of water and air pollution,
there is no
generic, nuisance type pollution standard for noise independent
of numerical standards promulgated by the Board.
18
—
20
—10--
In rebuttal,
the Agency states that the Illinois Supreme
Court resolved this very issue
in Illinois Coal Operators
Association v. Pollution Control Board,
Ill. 2d,
N.E.
2d(Supreme
Ct.
No.
46413, May,
1974) by allowing a general
Section
24 or Rule 102 noise pollution violation, whether or
not such emission violates any other specific rule,
i.e., Rule
202.
Specifically,
the Agency cites the following language
from the Supreme Court decision:
“,..We read
Rule
102
as
prohibiting emissions
that unreasonably interfere with life or
activities, whether such emissions may be said to violate
Section 24 generally or whether they are emissions which more
specifically may be said to violate a particular Board regulation
(as referred to in Section
24) by exceeding,
for example, the
maximum permissible decibels which may be by a regulation emitted
to a certain classification of land..
.“
The Board cannot agree with the Agency’s interpretation of
the language used by the Supreme Court in that decision.
The
Supreme Court Opinion provides that a violation of Rule 102 may
be proved in two ways,
i.e., by the general evidence of excessive
noise emissions or by particular evidence of noise emissions
in
excess of numerical limitations prescribed in a Board Regulation.
The Supreme Court did not determine the applicability of
Rule 102 where sound measurement data shows~compliance with the
numerical standard of Rule 202.
The Court did not use the phrase
“whether or not”
as claimed by the EPA.
Decibel readings are not always available in the prosecution
of noise cases.
Other types of evidence will sometimes be
sufficient under Rule 102
to prove that noise has been excessive
and
has “unreasonably interfered” with the enjoyment of life or
scme lawful business or activity.
Rules 102 and 202 are similar
that
each
is an attempt to protect people from the unreasonable
interference of noise.
The two Rules are dissimilar
in that
different types of evidence are contemplated.
It
is the Board’s Opinion that a Rule 102 violation may be
found
in the absence of any noise survey data but, where such
data is presented and compliance with Rule 202 is proven,
neither
a Rule 202 nor a Rule 102 violation may be found.
The
precise and objective evidence will control over the imprecise
and subjective evidence.
Some observers might feel that this holding conflicts with
precedent which has been well established in air pollution and
water pollution cases.
In air or water pollution cases
it is
well settled that compliance with emission standards is not an
absolute defense to a “nuisance” type prosecution.
This is so
because the physical circumstances,
i.e., wind direction, terrain,
18—21
—11—
proximity to emission source, might increase the pollutional
impact upon certain individuals beyond the~impactwhich is
ordinary from such emissions.
A different result is reached here because of the different
nature of the noise standard.
The noise standard
is
an
attempt
to establish reasonable noise levels at the receiving property.
Noise levels are measured where received.
It is an impact
standard.
When it is proved that an emission source
is
in
core—
pliance with the numerical standards of Rule 202, this is proof
that the noise impact upon the receiving property is within
ihe noise range which has already been determined reasonable.
Our authority to adopt the noise standard is found
in
Sections
24 and 25 of the Environmental Protection Act.
The
prohibition is against noise that “unreasonably interferes”
with the enjoyment of life so as
to violate any regulation or
standard adopted by the Board.
The Board is ordered to cate-
sorize
the
types of noise emissions that “unreasonably interfere”
with the enjoyment of life and to prescribe the maximum per-
missible limits on such noise emissions.
This the Board has done.
The standard is an attempt to specify with particularity the
noise levels which “unreasonably interfere”.
If we were to
require still more noise reduction in individual cases,
then
the
standard could be regarded as no standard at all.
The standard
might be regarded as vague, indefinite,
capricious--perhaps
invalid.
It has been argued that compliance with the numerical
Imitations of Rule 202 is merely a “prima fade” defense and
that~
in some manner, liability can still be established for
viciation of the
general
noise
prohibition
of
the
Act.
This
crlr~entis based upon Section 49(e)
of the Act which provides:
“C:or~iiancewith Rules
and Regulations promulgated by the Board
under
this Act shall constitute a prima facie defense to any
action,
legal, equitable,
or criminal, or an administrative
proceeding for a violation of this Act, brought by any person”.
We find, however, that Section 49(e)
is not applicable to this
situation.
The statutory prohibition against noise pollution was
not intended to be self executing and stands
for naught in the
absence
of
the
regulation.
The
Legislature
has
prohibited
noise
which “unreasonably interferes” with the enjoyment of life “so
as
to violate any regulations or standard adopted by the Board
under this Act”.
(Environmental Protection Act ~ 24).
The
~egislature wanted the regulatory procedure to be followed in
order to establish what noise levels do constitute “unreasonable
interference”.
Unlike prosecutions for air pollution
(Section 9(a)
of the
Act
and water pollution
(Section 12(a)
of the Act
an action
for noise pollution under the Statute
(Section 24) cannot stand
18
—
22
—12—
alone.
The Statute is not effective without the Regulation
and is not violated unless the Regulation is also violated.
Compliance with the noise regulation
is
compliance with the
noise statute.
It has been suggested that
in
rare
cases
a
neighbor
might
have
a special health condition which requires unusual
protection from noise and that in such a case a noise emission
source could cause noise pollution even while complying with
~he
numerical
standard.
We do not decide at this time whether
such special health conditions could be considered, under the
current
noise regulation,
in determining whether noise pollution
exists~ Suffice to say that there is no evidence of special
health conditions
in
this
record.
Turning to the record,
the Board notes that the only sound
me~r;L:rem
ent
data
presented
was
that
already
described
at
pages
~d
7
of
this
Opinion.
These
data
clearly
show
that
sound
measured
at
the
Stander
residence
(Class
A
land)
was
within
numerical
limitations established by Rule 202.
Sound measured at a point
25 feet beyond the pumping station
and apparently on the property of Ronald and Sharon Stander on
April
30.~ 1974 was,
for
6 of the
9 octave bands, in excess of the
numerical
limitations established for Class A land under Rule
202.
We conclude from the record that the Standers used their
backyard
for recreational purposes as an adjunct to their
household
and that it was in fact Class A land.
The sound
measurements
support the subjective testimony of Respondentvs
neighbors indicating
that there was ~unreasonable interference”
in the
backyards.
Ferndale
contends that the Agency has imposed ad hoc
n~merica:Llimitations
under Rule 102 that are substantially
more stringent
than
the numerical limitations of Rule 202,
that
are not the result of Board or Court decision and that are
the
result
of
an
Agency
determination
made
without
notice, hearing
or explanation.
These numerical limitations, argues
Ferndale,
are arbitrary
arid
absurdly stringent when compared to OSHA~spermitted noise
exposure levels and the U.
S. EPA noise standards for trucks.
Ferndale contends that neither the Act nor the Regulations gives
the
Agency authority to impose such limitations and that such
action
by the Agency violates Section
24 of the Act.
The
Agency contends that the numerical standards listed in
Part 15C of the Stipulation represent part of
a mutually agreeable
18
—
23
—13—
compliance program designed for this particular action.
These
limitations
represent
guideposts
to
aid
Ferndale
and
its
engineer in formulating criteria for the deflector plates,
insulation of wood penthouse and lagging material.
Such
limitations are not standards
but
guideposts reflecting the
Agency’s cooperation with and assistance
to Ferndale
after
such aid and assistance was requested in August 1974,
nearly
one year after Ferndaië was informed of its noise problems.
By signing the Stipulation the Agency contends that it can
be assumed Respondent consulted as many experts
as necessary to
insure that the agreement it was about to enter into was not
unnecessarily and unrealistically stringent.
In
addition,
Respondent saved itself the expense of additional legal
fees
attributable to many hours of court work required by
a full
hearing.
The
fact that Ferndale no longer agrees
“with itself”
regarding
compliance,
argues the Agency, does not make the Agency’s
position arbitrary.
One fact in this argument stands out like a beacon in the
night—-Ferndale did sign
a Stipulation agreeing to numerical
limitations.
Nothing in the record indicates that Ferndale
signed this Stipulation under duress.
OSHA standards and U.
S.
EPA
standards
for trucks have no direct bearing upon this action.
The
Stipulation
was
formulated
and
signed
as
a
result
of
negotiations between the two parties.
There
is nothing inherently unlawful in two parties
agreeing
to
comply
with
a
set
of numerical emission limitations
II
the
limitations do not violate standards established by
~uatute or Board Regulation.
Testimony by Ferndale witness
biding clearly shows that
the
agreed to numerical limitations
are
not
unreasonable.
The
Board must
assume that
Ferndale entered into this Stip-
ulation of its own accord and, on the date of signing, was in
full agreement with all parts of that Stipulation.
Neither
party has requested that the Stipulation be withdrawn.
If we
are to decide this case on the basis of the record presented to
us then the Stipulation must be honored.
We regard the new
limitations, not as
a general standard, but as
a compliance plan
voluntarily submitted by the parties and applicable only to one
situation.
Ferndale finally argues that it
is improper
to apply Rule
102
to ?erndale and therefore, Rule 202 must be the applicable
Rule.
It
is then claimed that Ferndale cannot be found in
violation of Rule 202 because Rule 209(b)
allows
a
12 months
compliance period and all Agency evidence appears to relate to
dates prior to expiration of this
12 month period.
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—
24
—14—
We
find
that
the
EPA
has
not
alleged
a
violation
of
Rule
202.
The
provisions
of
Rule
102
were applicable to Ferndale
10 days after filing with the Index Division of the Office of
the Secretary of State.
The effective date for Part I
of the
Noise
Regulations
is
August
10,
1973.
No
delayed
compliance
date
is
provided
for
Part
1
of
the
Noise
Regulations.
Exhibit
B
clearly shows that Ferndale was warned of a
possible violation of Rule 102 on October 10,
1973.
Ferndale
thus had almost 10 months to act upon such warning before the
Agency filed its Complaint.
It is the Board’s opinion that
Ferndale
was
given
adequate
notice
and
that,
based
upon
the
relatively
short
time
required
to
achieve compliance as shown
in
Part
15
of
the
Stipulation,
adequate time to achieve compliance
was
allowed
by
the
Agency
before
Complaint
was
filed.
We
now
turn
to
the
basic
issue
of
whether
the
record
shows
that
Ferndaie
did
cause
or
allow
noise
pollution
as
charged.
The
following
list
identifies
those
lots,
witnesses
and
the
distances
involved,
witnesses,
their residence properties
and
distances
to
the
noise
source:
Distance
from
Prior
Present
Pump
House
to
Lot
Resident
Resident
House
113
Ray
Di
Vito
850
ft.
(1965
to
June
1971)
252
Frank
Keraly
250
ft.
(1970
to
Present)
254
Mary
Consoer
110
ft.
(5
Years)
255
Raymond
Joos
Thomas
Pierson
40
ft.
(1970
to
Apr.
1974)
(Apr.
1974
to
Present)
256
Ronald
and
Sharon
130
ft.
Stander
(8
years)
257
Robert
Brown
June Burger and Joyce
120
ft.
(1970
to
Nov.
1972
Brundage
Robert
Pryun
(Apr.
1974
to
Present)
(Nov.
1952
to
Apr.
1974)
258
Robert
Winstead
Thomas
Pastrnak
175 ft.
(1970
to
Aug.
1972)
(1
year)
18—
25
—15—
Ferndale contends that its witnesses presented testimony
which contradicts the testimony of every Agency witness and
that the evidence is so conflicting that the Agency clearly has
failed to sustain its burden of proof.
Ferndale believes that
testimony of each Agency witness was contradicted,
lot by lot,
~y Ferndale wItnesses.
~ne recora does not support this con-
tention.
None of the Ferndale evidence contradicts the Agency
testimony of Mary Consoer
(Lot 254)
or Ronald and Sharon
Stander
(Lot 256).
Ferndale claims that the testimony of these two witnesses
was contradicted by the testimony of Frank Keraly
(Lot 252)
and
Ray Di Vito
(Lot 113).
Keraly resides two lot lengths beyond
the Consoer residence
(or about 140 feet)
and at least 120 feet
further from the pumping station than the Standers.
The former
Di
\7:to
residence was 850 feet from the pump house.
Distance between a sound emitter and a sound receiver is
important in determining the impact of such sound.
In adopting
the
Noise Pollution Regulations the Board said:
“Sound is emitted and received as pressure flucuations
in the atmosphere.
The fluctuations travel from the emitter
to the receiver
and
the physical relation between the emitter
and
receiver determines the alteration of emitted sound and
thus
the characteristics of the received sound.
Two major
spatial factors determine this alteration:
distance and
direction,
Distance between emitter and receiver determines
the
amount of atmospheric diffusion
or
attenuation
of
sound
etergy and thus,
the decrease in SPL between emitter and
receiver.
In theory, doubling the distance between the
emitter
and receiver decreases the SPL received by
6 dB
while
halving the distance increases the SPL received by
6 dB.
For example,
if
a motor emits
60 dE at 100 feet, at
200 feet,
the reading would typically be
54 dB.
Since the
noise regulations are based on sound levels measured on the
receiver’s property, opportunity is available for the
atmospheric attenuation of the sound emitted.
The dir-
ectional aspect refers to the orientation between the sound
radiating surfaces and the receiver.
The pressure
fluctuations are often generated by vibrating surfaces so
that “seeing” the surface results in more sound received
than if the vibrating surface
is shielded.
intervening
objects such
as buildings or barriers block and disperse
the sound so that the amount received is lessened.”
(Board
Opinion in the matter of Noise Pollution Regulations,
July
31,
1973, page 11 and 12)
Using such theoretical considerations in comparison to the
distances involved would show that Keraly would experience about
18
—
26
—16—
6 dB less than the Standers and over
6 dB less than Mary
Consoer.
For Ray Di Vito,
the difference would have been
about 18 dB less than the levels experienced by the Standers
or Mary Consoer.
Thus,
there is no reason to believe that
Ray Di Vito would have been bothered by the sound from the
pump house even if the presence of other houses
(which there
are)
and
trees
are
not
to
be
considered.
The
subjective
sound
level reaching the Keraly residence is considerably lower than
that reaching either the Stander or Consoer residence.
Ferndale
also
attempts
to
show
certain
deficiencies
in
the testimony of Agency witnesses.
Specifically, Ferndale
argues
that
the
Pierson
testimony
failed
to
provide
dates
and
times of noise, failed to show any disturbance in his house,
failed to show physical damage to himself or any person or
property, failed to show that he never lounged or entertained
guests in his yard and failed to show when and how often he did
not lounge or entertain guests in his yard.
Other alleged
testimony deficiencies involve failure to cite dates and times
when witnesses were awakened or when the sound prevented outside
activities such as patio parties.
Agency witnesses used such terms
as “almost constant this
summer”,
“five
times this past summer” and “awakened once or
twice this year”
to describe generally how often they were
disturbed by sound from the pumping station.
Terms such as
“a great source of irritation to both of us”, “that great source
of irritation”, “disturbing” and “source of irritation” were
used to describe the effect of this sound upon the individuals.
We
find that the character and degree of interference is
adequately described in the testimony of the Agency witnesses.
The record shows that some people are not bothered by sounds
from the pumping station, but also shows that others are.
Data taken from near the Stander home do not show that
sound from the pumping station exceeds the numerical limitations
of Rule 202.
The numerical values of Rule 202 were designed by
the Board to prevent unreasonable interference.
Although the
record shows that the Standers suffer from noise even within
the confines of their house,
the Regulation does not offer
additional protection beyond compliance with the numerical
limitations.
Thus, based on the record there can be no Rule 102
violation found at the Stander residence.
However, data taken at a point
25 feet from the pumping
station
does
support
the
testimony
of
neighbors
to the effect
that noise pollution exists in the backyards.
These sound
levels have forced nearby residents to retreat to the confines
of their house and forego the use of their backyards.
18—
27
—17—
The sound measurements in conjunction with citizen
testimony in this record convince us that Rule 102 has been
violated in the yards of persons who live near the pumping
station.
Noise survey data confirms the emission and the
impact of sound above limits
which
would exist
for Class A
land,
Citizen testimony confirms that there has been un-
reasonable interference with enjoyment of life and lawful
activity from excessive noise.
The social and economic value of Res~ondent’soperations
are not disputed by the Agency.
The record shows
that the
Long Grove pumping station operated by Respondent is important
and necessary to the welfare and safety of its customers.
Ferndale built its Long Grove pumping station after
houses in the residential area had already been built.
The
Agency contends
that Ferndale,
in
constructing its pumping
station about
10 feet from a resident’s property line and 115
feet from a resident’s home,
should have been aware of the
potential noise problem.
Ferndale argues that Agency witnesses
Burger and Brundage, Pastrnak, Pierson moved into their residences
after the pumping station was already in operation.
According
to Ferndale,
these residents knew of the existence of the
pumping station and had an opportunity to investigate or question
the operation prior to purchase and moving into the houses.
The Board finds, however, that this noise problem can be
solved without unreasonable expenditure and without changing
the use of any of the properties involved.
Therefore,
the
case
will
not be decided on the basis of which use caine first.
The technical practicability of reducing the sound emissions
not in doubt in this proceeding.
Ferndale witness Golding
testified that devices and materials could be installed to meet
the stipulated sound emission levels.
Although the record does not provide any cost figures
relating to installation of sound reducing devices and materials,
that issue is not in doubt in this proceeding.
Ray Di Vito,
an
officer of Respondent,
testified that Ferndale has sufficient
available assets with which to make payment on devices and
materials recommended by its consultant.
Two
issues remain to be resolved--the degree of diligence
shown by Ferndale and civil penalty.
It is the Agency’s position
that
Ferndale has not moved expeditiously to reduce sound
emissions and that compliance was sought only after the filing of
Complaint which followed the allowance of reasonable time for
compliance.
18— 28
—18—
The record shows that Ferndale retained the Fletcher
Engineering Company on October 15, 1973
to investigate the
noise problem.
However, according to the EPA,
there is no
evidence showing that Fletcher Engineering was competent in
the field of noise abatement and there is no indication
that Fletcher was requested to expeditiously seek a solution
to the noise problem.
On June 1,
1974 Ferndale retained the Edward Newell
Company to design,
fabricate and install noise abatement
materials and devices.
Again the Agency argues that there
is no evidence in the record showing that Newell Company was
competent in the field of noise abatement.
We find Respondent’s motivation and diligence acceptable.
~erndale hired one consultant and retained its service for an
unspecified period of time.
The fact that a second consultant
was hired some eight months
later shows only that the first
consultant failed to solve the problem and nothing else.
If
the parties had evidence regarding competency of the first
con-
sultant
they did not make such evidence
a part of this record.
In the Stipulation the parties stated that the third consultant
Fauver was retained “as soon as Respondent was” advised of the
change in operations of the second consultant.
Such language
does not show a lack of diligence on behalf of Ferndale.
On October 22,
1973 Ferndale replied to the Agency’s
October 10,
1973 warning letter
(Exhibit C).
In this letter
~?ernda1eexpressed a willingness to study the noise problem
but not until the Agency supplied Ferndale with noise survey
bata taken by Agency investigators.
This information was
stppiicd Ferndale on November
2, 1973 along with a petition
containing 150 signatures and an offer from the Agency
to “assist
you in any way”
(Exhibit D).
About one month later the Agency again wrote Ferndale
stating that the matter had been bound over to
the Agency’s
Enforcement Services Section.
Another request was made for
some response from Ferndale as to its intentions regarding the
alleged noise problem
(Exhibit E).
Ferndale responded to this letter on December 19,
1973 by
telling the Agency that it was certain that 150 persons could
not hear the pumping station noise at any time and that the
persons signing the petition did so to spite the company because
of past disagreements over rates.
Ferndaie told the Agency that
the pumping station was an asset to the community instead of a
nuisance.
Nevertheless, in its desire to obviate any future
complaints, Ferndale was working on a plan to muffle the engine
and that the Agency would be supplied a copy of the plan upon
18—
29
—19—
its completion.
In closing this letter, Ferndale told the
Agency that any discussion of enforcement was premature
since the Noise Regulations provided Ferndale with a one
year compliance period
(Exhibit F).
The Agency contends that Ferndale’s letter of December 19,
1973 was merely an opinion drawn without any meeting to discuss
applicability of the Regulations.
According to the Agency,
the
letter showed Ferndale’s attitude of
lac:K of cooperation and a
desire to withhold compliance for at least a year beyond the
date of required compliance.
We do not believe the delay indicates a lack of good faith
on the part of Respondent.
Respondent has now fully performed
its agreed compliance plan.
The Agency’s position is based in
part upon an assumption that certain violations existed which
were not borne out by the record.
For instance,
the record
does not reveal a violation at any residence.
It is the determination of the Board that a civil penalty
in the amount of $500
is warranted based on the record presented.
This Opinion constitutes the findings of fact and con-
clusions of law of the Illinois Pollution Control Board.
ORDER
It is the Order of the Pollution Control Board that
Ferndale Heights Utility Company shall pay to the State of
Illinois by August 25,
1975 the sum of $500
as a penalty
for the violations of Rule 102, Noise Regulations and
Section 24, Environmental Protection Act, found in this
proceeding.
Penalty payment by certified check or money
order payable to the State of Illinois shall be made to:
Fiscal Services Division, Illinois EPA,
2200 Churchill Road,
Springfield, Illinois 62706.
Mr.
(oodxnan and Mr. Zeitlin dissent.
I, Christan L, Moffett, Clerk of the Illinois Pollution Control
Board,
hereby certify the above Opinion and Order was adopted
the
j~
day of
_________,
1975 by a vote of
~
Stan L.
No:
Illinois Pollution
1 Board
18
—
30