ILLINOIS POLLUTION CONTROL BOARD

Section 33(c) Factors

February 6, 2003

DAVID and JACQUELYN MCDONOUGH,

Complainants,

GARY ROBKE,

Respondent.

)

PCB 00-163

(Citizens Enforcement - Noise)

OPINION AND ORDER OF THE BOARD (by T.E. Johnson):

On March 27, 2000, David and Jacquelyn McDonough (complainants) filed a complaint

against Gary Robke (Robke). In that complaint, the complainants allege that Robke violated

noise nuisance provisions under Section 24 of the Environmental Protection Act (Act) (415 ILCS

5/24 (2002)) and Section 900.102(a) of the Board regulations (35 Ill. Adm. Code 900.102(a)).

The complainants also allege that Robke violated Section 23 of the Act (415 ILCS 5/23 (2002))

and Sections 11-505, 12-601, 602, and 611 of the Illinois Vehicle Code (625 ILCS 5/11-505, 12-

601, 602, 611 (2002)). The complainants asserted that the violations were caused by Robke’s

operating a 24-hour self-service car wash in Mascoutah, Illinois. The complainants stated that

noise generated by the car wash equipment, patrons, and their vehicles unreasonably interferes

with complainants’ enjoyment of life and property.

The Board held a hearing in this matter on November 13, 2001. Both parties filed post-

hearing briefs. On March 7, 2002, the Board issued an order finding respondent Gary Robke

(Robke) in violation of Section 24 of the Environmental Protection Act (415 ILCS 5/24 (2002)).

Robke was directed to prepare and file a report detailing what steps could be taken to alleviate

the noise emissions. On July 11, 2002, the Board granted Robke an additional 30 days, to

August 5, 2002, to file the noise report.

On August 5, 2002, Robke sent a letter to Board Hearing Officer Steven Langhoff. The

letter sets forth actions that Robke will undertake to mitigate the noise pollution emanating from

the car wash, and asserts that preparation for a written noise report is underway and that a report

will be completed in approximately 21 days. On September 18, 2002, Robke filed its noise

report. The complainants filed a response to the noise report on November 18, 2002.

Based on the record before it, the Board finds that remedial action, including the

construction of a noise wall, the wrapping of the vacuums with noise attenuation material and the

silencing of all beeping alarms at the car wash are warranted.

MARCH 7, 2002 OPINION AND ORDER

In the March 7, 2002 order, the Board found that Robke violated Section 24 of the Act

(415 ILCS 5/24 (2002)) and Section 900.102(a) of the Board regulations (35 Ill. Adm. Code

900.102(a)). Specifically, the Board found that noise from the Mascoutah Car Wash

unreasonably interfered with the complainants’ lives. The complainants did not seek a civil

penalty in the proceeding. Rather, they requested that the Board require Robke to take steps to

eliminate the noise emissions from car wash. Complainants requested an order directing Robke

to undertake control measures that they suggested, and were discussed by their witness Mr.

Gregory Zak (Zak) in his testimony at the November 13, 2002 hearing. McDonough v. Robke,

PCB 00-163, (Mar. 7, 2002).

The Board was not convinced that the record supported adoption of all of the control

measures suggested by the complainants. For example, the Board questioned the economic

reasonableness of shutting down the Mascoutah Car Wash between the hours of 10:00 p.m. and

7:00 a.m., and noted that the record also contains contradictory suggestions on an appropriate

noise wall.

The Board found the record lacked sufficient evidence for the Board to determine what

steps are reasonable to reduce the noise emissions. Accordingly, the Board directed Robke to

file a report, within 120 days of March 7, 2002, that detailed a plan for reducing the noise

emissions reaching the complainants’ residence. Robke was directed to consult with a noise

expert, and provide options to reduce the noise emissions, as well as information about the

effectiveness of each offered option.

ROBKE’S LETTER

On August 5, 2002, Robke’s attorney sent a letter to Board Hearing Officer Stephen

Langhoff. The letter indicated that Robke has retained an engineer to conduct a noise study.

Letter at 1.

The letter asserts that Robke would agree to disable the warning beepers associated

with the car washing equipment, and construct a 6-foot fence between the car wash and the

complainants and along the rear of the property.

. In the letter, Robke contends that the City

of Mascoutah has indicated that it would not look favorably upon an application of variance for a

12-foot fence, but has not responded to a request to put this position in writing.

ROBKE’S SOUND SURVEY

On September 18, 2002, Robke filed an Environmental Sound Survey prepared by

Engineering Dynamics International (EDI). The stated objectives of the survey were to quantify

the sound level of the different components of the car wash, establish background sound levels

for the area, evaluate compliance or violations and provide some practical recommendations for

reducing the sound levels from the car wash. Survey at 1.

In preparing the survey, EDI monitored the sound continuously from August 7, 2002 to

August 17, 2002, at two locations at the car wash. EDI also conducted one-third octave band

The August 5, 2002 letter will be cited as “Letter at __.”; the Environmental Sound Survey will

be cited as “Survey at __.”; the complainants’ reply to the survey will be cited as “Reply at __.”

spectral measurements on August 19, 2002, at three separate locations. Survey at 2. The survey

also makes conclusions as to whether or not the sound emitted from the car wash violates

allowable levels set forth in the State of Illinois Noise Codes. As the Board previously found

nuisance noise violations, this information is being considered solely to determine what remedial

actions are necessary to reduce the noise emissions.

The survey indicates that the vacuum cleaners and beeping alarms are the main sources of

identifiable sound from the car wash. Survey at 2. EDI recommends that a noise wall on top of

the berm at the south property line would be the most efficient way to protect the complainants’

house. Survey at 2. The survey recommends a 4-foot wall on top of the existing 6-foot berm,

resulting in a structure 10 feet from ground level.

. The survey finds that if that option is

available, no other treatment is required.

Id.

EDI then addresses other options to reduce noise emissions to the south property. EDI

recommends the application of acoustical noise attenuation material to the vacuum stations.

Survey at 7. EDI asserts that the material can be mounted or form fitted to the cylindrical tanks

of the vacuums by mechanical fasteners or clips.

. In addition, EDI asserts that the vacuums

on the south side of the car wash are the largest contributor to the sound levels along the south

property line, and should be relocated to another area on the north side of the site. Survey at 2,7.

EDI contends that the measures regarding the vacuums will result in a decrease in the total sound

contribution to 45 dB(A) or less. Survey at 7.

EDI suggests that if the beeping alarms are volume-controlled, they should be adjusted by

6 dB on each component that employs an alarm. Survey at 7. However, EDI asserts that the best

alternative to eliminate the beeping sound is to convert to a flashing light system to signal the

completion of the operation. Survey at 2, 7.

COMPLAINANT’S REPLY TO SOUND SURVEY

The complainants assert that two highly effective steps are available to reduce the noise

pollution from Robke’s car wash: the construction of an appropriate noise barrier and the

closing of the car wash from 10:00 p.m. to 7:00 a.m. Reply at 2. The complainants note that the

survey is silent on any economic issues, particularly on the option of closing the car wash at

night. Reply at 3. The complainants assert that the survey does not mention how the suggested

height or location for the noise wall was determined.

The complainants’ expert, Zak, reviewed Robke’s survey and offered his assessment.

First, Zak has serious reservations regarding the credibility of the measurements contained in the

survey. Reply at 4. Zak does, however, concur that a noise wall on top of a berm would be an

The survey is inconsistent in this regard. In the executive summary section, the survey states

that no other remedial treatment is required if the 10-foot noise wall is acceptable. Under the

recommendations portion of the survey, EDI characterizes the noise wall as the best option to

attenuate sound, but then recommends additional remediation as well. In its conclusion, the

survey recommends treating the vacuums and beeping alarms as outlined in the body of the

survey.

effective means to reduce noise from the car wash.

. Zak asserts that the wall should be at

least 12 feet high and located as close to the car wash area as possible in order to provide line of

sight protection to the ground floor of the complainants’ residence.

Zak specifies that the noise wall should be airtight from the ground to the top and

constructed of a solid material with a minimum density of 1 pound (lb) per square foot. Reply at

3. Zak asserts that the barrier should be L-shaped, 12 feet high, and run east and west for 150

feet and north and south for 60 feet.

. The complainants contend that, based on discussions

with Mascoutah’s city manager, a combination 6-foot berm and 6-foot fence noise barrier that

was appropriately landscaped to soften the appearance of the 12-foot structure would be a

workable variance and solution.

The complainants obtained estimates from various contractors and assert that a 6-foot L-

shaped berm 150 feet by 60 feet in length, with a base of 40 feet and a flat top of 8 feet would

cost between $2,000 and $4,000 to build. Reply at 3. The complainants assert that an airtight 6-

foot fence constructed of half-inch outdoor grade plywood over the entire length of the berm

would cost approximately $5,000.

. The complainants contend that landscaping the berm with

trees and groundcover would cost approximately $2,500 to $4,000.

. The complainants

conclude that a suitable noise barrier could be constructed for $9,500 to $13,000. Reply at 4.

The complainants next address the nighttime noise issue. The complainants assert that

the most disturbing and stressful noises emanating from the car wash are those that wake them

during the night or prevent them from falling asleep. Reply at 4. The complainants contend that

the predominant noises in this regard include loud engines and mufflers, radios and people

yelling, and that these are the specific types of sounds Zak classifies as low frequency noise that

would be least attenuated by a noise barrier.

. Accordingly, Zak recommends closing the car

wash from 10:00 p.m. to 7:00 a.m.

. The complainants assert that the car wash should have an

electric timer cutting off the power at 10:00 p.m. and simultaneously turning on a small sign

indicating the car wash is closed. Reply at 5.

The complainants agree with the survey’s recommendation to wrap the vacuums and to

use flashing lights in lieu of beepers to control noise. Reply at 4. However, Zak does not believe

that moving the set of vacuums nearest the south property is advisable.

DISCUSSION

The Board previously found that Robke’s facility unreasonably interfered with the

enjoyment of the complainants’ property in violation of Section 24 of the Act (415 ILCS 5/24

(2002)) and 35 Ill. Adm. Code 900.102. The only issue left was what remedy would be

appropriate in this case. The complainants sought only to have the noise reduced; the

complainants did not seek a civil penalty.

The Board next considers the noise abatement measures that the Board will order

Robke to undertake.

Section 33(c) Factors

In determining the appropriate remedy, the Board must consider the factors set forth

in Section 33(c) of the Act.

See

415 ILCS 5/33(c) (2002). The Board's findings on the

Section 33(c) factors from the March 7, 2002 interim opinion are incorporated by reference

and summarized below.

The Board found that the noise substantially and frequently interfered with the lives of

the complainants. The Board accordingly found that the noise is of sufficient character and

degree to be unreasonable, and weighed this factor against Robke.

See

415 ILCS 5/33(c)(i)

(2002). The Board found that Robke provided sufficient evidence to show that the Mascoutah

Car Wash has some social and economic value.

See

415 ILCS 5/33(c)(ii) (2002). The

complainants have priority of location in that they bought their home in 1992, six years prior to

when Robke built the Mascoutah Car Wash. When the complainants purchased their property,

the surrounding farmland was zoned agricultural. The Board weighed this factor evenly between

the parties.

See

415 ILCS 5/33(c)(iii) (2002). The Board found that the parties presented several

options that may be technically practicable and economically reasonable to effectively reduce or

eliminate noise at the car wash.

See

415 ILCS 5/33(c)(iv) (2002). The Board found that the

respondent’s good faith abatement efforts have not eliminated the interference.

See

415 ILCS

5/33(c)(v) (2002).

In light of these findings, the Board will determine the appropriate remedy.

Noise Wall

Both parties propose the construction of a noise wall. However, Robke recommends a

structure totaling 10-feet from the ground and 200 feet in length along the south property line.

The complainants advocate a structure totaling 12-feet from the ground and L-shaped in design

along the south and west side of the car wash. The Board finds that a 12-foot structure with a

minimum density of 1 lb per square foot is reasonable to reduce the noise. A 12-foot structure is

necessary to provide line of sight protection from the car wash to the ground floor of

complainants’ property.

The Board will require Robke to build the structure in an L-shape along the west and

south property line. The wall must run east and west for 150 feet and north and south for 60 feet,

and be airtight from the ground to the top and constructed of a solid material with a minimum

density of 1 lb per square foot. The length of the noise wall is only ten feet longer than that

proposed by Robke. A combination 6-foot berm and 6-foot fence noise barrier will be required.

The Board finds that it would not be reasonable or necessary to place the structure near

the existing car wash, especially in light of the testimony in the record regarding Robke’s future

plans for expansion. The construction of noise wall totaling 12-feet high from the ground level

is sufficient to reduce the noise from the car wash.

The record is unclear as to whether a variance from City of Mascoutah will be necessary,

or obtainable, prior to the construction of a noise wall. At hearing, Robke asserted that the

maximum height for a fence in the city of Mascoutah is six feet. The record contains a number

of references to the need for a variance before construction can commence. Robke did not

address this issue in the sound survey, but did assert in its August 5, 2002 letter that the city has

indicated it would not look favorably upon an application of variance for a 12-foot fence. The

complainants contend that a combination 6-foot berm and 6-foot fence noise barrier was

discussed with Mascoutah’s city manager and deemed a workable variance and solution.

The Board is requiring Robke to construct a noise wall. Should Robke run into

insurmountable difficulties with the City of Mascoutah during the construction of the noise wall,

Robke may attempt to modify this Board order as required.

Changes in Operations

The Board finds that requiring Robke to cease operations from 10:00 p.m. to 7:00 a.m. is

not reasonable. The Board will require that Robke wrap the vacuums with acoustical noise

attenuation material and use flashing lights in lieu of beepers to control noise. The Board finds

these measure coupled with the construction of the aforementioned noise wall will be sufficient

to control the noise from the car wash during both the day and the night. Finally, as the

complainants do not think it advisable, the Board will not require moving the set of vacuums

nearest the south property to a different location.

The Board will order Robke to cease and desist from any further violations of the

nuisance noise prohibitions of 415 ILCS 5/24 (2002) and 35 Ill. Adm. Code 900.102. This is

consistent with Board orders in similar cases, in which the Board has ordered a respondent to

implement specific abatement measures and to cease and desist from further violations.

See

Thomas v. Carry Companies of Illinois, PCB 91-195, slip op. at 3. (May 19, 1994); Madoux v. B

& M Steel Service Center, Inc., PCB 90-148, slip op. at 6-7 (Nov. 19, 1992).

The Board will not order Robke to comply with numeric sound limits or to record its

sound emissions to determine if they exceed those limits. Robke is already subject to the Board's

various numeric sound limits and complainants did not show that Robke has violated those

limits.

CONCLUSION

As discussed above, the Board will order Robke to cease and desist from further

violations and to perform specific noise abatement measures. Based on the record, the Board

finds these remedies to be technically feasible and economically reasonable methods of reducing

the noise emissions from Robke’s facility.

The Board incorporates by reference its findings of fact and conclusions of law from its

interim opinion. This final opinion constitutes the Board's findings of fact and conclusions of law

in this matter.

ORDER

1. The Board finds that Gary Robke unreasonably interfered with the

enjoyment of life in violation of the nuisance noise prohibitions of 415

ILCS 5/24 (1996) and 35 Ill. Adm. Code 900.102.

2. Robke must cease and desist from any further violations of 415 ILCS

5/24 (1996) and 35 Ill. Adm. Code 900.102.

3. Robke must construct an airtight barrier at its Mascoutah Car Wash in

Mascoutah, St. Clair County. The barrier must run continuously on the

southern and western property line of the car wash. The barrier must be

completed within 180 days of the date of this order.

a. The barrier must be designed and installed in

accordance with good engineering practices (including

good noise control engineering practices) and under the

supervision of a qualified noise control engineer.

b. The barrier must be airtight and of uniform elevation.

The barrier must be 12 feet high and consist of a 6-foot

high berm topped with an airtight 6-foot high fence

constructed of a solid material with a minimum density

of 1 lb per square foot.

c. The barrier must be a contiguous L-shape and be 150

feet in length running east to west and 60 feet in length

running north to south.

d. Robke must maintain the barrier in good condition.

4. Robke must wrap all vacuums in a Hush Cover or equivalent

acoustical attenuation material. The material must be mounted

or form fitted to the cylindrical tanks of the vacuums by

mechanical fasteners or clips.

a. All acoustically absorptive material must be installed in

accordance with good engineering practices (including

good noise control engineering practices) and under the

supervision of a qualified noise control engineer.

b. Robke must maintain all acoustically absorptive

material in good condition.

5. Robke must use flashing lights in lieu of beepers on all car wash equipment.

IT IS SO ORDERED.

Board Member M.E. Tristano dissented.

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

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

order. 415 ILCS 5/41(a) (2002); see also 35 Ill. Adm. Code 101.300(d)(2), 101.906, 102.706.

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

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

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

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

101.502; see also 35 Ill. Adm. Code 101.902, 102.700, 102.702.

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

adopted the above opinion and order on February 6, 2003, by a vote of 6-1.

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board