ILLINOIS POLLUTION CONTROL BOARD
February 5, 2004
ANTHONY and KAREN ROTI, PAUL
ROSENSTROCK, and LESLIE WEBER,
Complainants,
v.
LTD COMMODITIES,
Respondent.
)
)
)
)
)
)
)
)
)
)
PCB 99-19
(Citizens Enforcement – Noise)
SUPPLEMENTAL OPINION AND ORDER OF THE BOARD (by N.J. Melas):
The Board issued a final opinion and order in this matter on July 24, 2003. On
August 28, 2003, LTD Commodities (LTD) filed motions for reconsideration, modification, and
stay (Mot. for Rec.). In a Board order dated September 4, 2003, the Board indicated that the
final opinion and order in this matter is stayed until the final disposition of LTD’s motion for
reconsideration. On September 15, 2003, LTD supplemented its motions for reconsideration,
modification, and stay (Mot. to Supp.). On October 16, 2003, the Board granted the
complainants’ former attorney, Steven Kaiser, leave to withdraw.
On December 4, 2003, Board Hearing Officer Brad Halloran sent a hearing officer order
to the complainants’ home addresses, attaching the Board’s September 4, 2003 and October 16,
2003 orders, and indicating that respondents must either retain an attorney or represent
r participate in this pr
oceeding. To date, the
complainants have not responded to the motions or the motion to supplement, and no attorney
has appeared on behalf of the complainants. Today’s order addresses LTD’s motions for
reconsideration and modification. For the reasons below, the Board grants LTD’s motion for
reconsideration, grants LTD’s motion to supplement, and modifies the Board’s final opinion and
order accordingly.
BACKGROUND
The Board’s February 15, 2001 interim opinion and order found that LTD violated the
Board and the Environmental Protection Act’s (Act) nuisance noise provisions and ordered the
parties to proceed to hearing on the remedy. After holding hearings on the remedy on October
15 and 16, 2002, and on December 9, 2002, the Board issued a final opinion and order on July
24, 2003. The Board ordered LTD to cease and desist from further violations of the Act and
Board regulations. Specifically, the Board ordered LTD to cease and desist from: (1) trucking
operations during nighttime hours, between 10:00 p.m. and 6:00 a.m. at the Bannockburn
facility; (2) using backup warning beepers at the Bannockburn facility and to replace any backup
warning beeper used on a yard tractor with either a human spotter or a strobe light; and (3)
2
parking, standing, or idling trucks, tractors or semi-trailers on Lakeside Drive and the ramp
connecting LTD’s dock area with Lakeside Drive.
The Board’s July 24, 2003 order provided that in the alternative, LTD may construct a
noise barrier. The Board ordered the noise barrier to be: (1) built immediately north of LTD’s
dock area; (2) designed and constructed in accordance with good engineering practices and under
the supervision of a qualified noise control engineer; (3) constructed out of certain sound
absorbing material; (4) uniform elevation with a wall-top elevation of 710 feet above sea level;
and (5) 520 feet in continuous length (and an additional 150 feet in length if LTD allows tractors
or semi-trailers to resume parking, standing, or idling on Lakeside Drive or the ramp connecting
Lakeside Drive to the staging area). The order also requires LTD to maintain the noise barrier in
good condition.
Finally, the Board’s July 24, 2003 order imposed a civil penalty of $15,000 upon LTD for
violating Section 24 of the Act and Section 900.102 of the Board’s prohibition against nuisance
noise. Roti,
et al
. v. LTD Commodities, PCB 99-19 slip op. at 15. Pursuant to LTD’s
August 28, 2003 motions for stay, reconsideration, and modification, the Board stayed the
July 24, 2003 opinion and order on September 4, 2003, until final disposition of LTD’s motion
for reconsideration.
MOTION TO SUPPLEMENT
In the motion to supplement, LTD attaches an email correspondence from Mr. Jack
Voigt, Vice President of Distribution for LTD, to Cycle Logistics regarding the use of backup
beepers at LTD Commodities as Exhibit A. Cycle Logistics, a yard tractor operator at LTD,
states in the email that it cannot comply with LTD’s request to turn off the backup beeper and
use a human spotter instead. LTD requested that Cycle Logistics express its position in a letter.
LTD attaches Cycle Logistics’ letter as Exhibit B. LTD moves the Board to grant the motion
because the attached exhibits support LTD’s argument that it is unsafe to disconnect the backup
beepers during daytime hours. The Board grants LTD’s motion and accepts the attached
exhibits.
MOTION FOR RECONSIDERATION AND MODIFICATION
A party may move the Board to reconsider and modify its decision within 35 days after
receiving a final Board order. 35 Ill. Adm. Code 101.520(a). Here, LTD does not ask the Board
to reconsider its finding of violations or imposition of the $15,000 civil penalty. LTD moves the
Board to reconsider and modify the ordered restrictions on nighttime trucking operations and the
alternative option to build a noise barrier.
Standard of Review
In ruling on a motion for reconsideration or modification, the Board will consider factors
including new evidence or a change in the law, to conclude that the Board’s decision was in error.
35 Ill. Adm. Code 101.902; Jersey County Sanitation v. IEPA, PCB 00-82 (Sept. 20, 2001). In
Citizens Against Regional Landfill v. County Board of Whiteside, PCB 93-156 (Mar. 11, 1993),
3
the Board observed that “the intended purpose of a motion for reconsideration is to bring to the
court’s attention newly discovered evidence which was not available at the time of hearing,
changes in the law or errors in the court’s previous application of the existing law.” Korogluyan
v. Chicago Title & Trust Co., 213 Ill. App. 3d 622, 627, 572 N.E.2d 1154, 1158 (1st Dist. 1992).
“Reconsideration is not warranted unless the newly discovered evidence is of such
conclusive or decisive character so as to make it probable that a different judgment would be
reached.” Patrick Media Group, Inc. v. City of Chicago, 255 Ill. App. 3d 1, 8, 626 N.E.2d 1066,
1071 (1st Dist. 1993).
Modifications Requested
LTD seeks the following modifications of the Board’s July 24, 2003 opinion and order:
1.
Allow LTD to conduct nighttime trucking operations while it works with a noise
consultant to examine ways to reduce noise at the site to the same level as offered
by the wall proposed by Dr. Paul Schomer.
2.
Allow LTD to conduct nighttime trucking operations while it works with a noise
consultant on the following noise wall proposals: (1) a wall along the north and
east property lines of the LTD property; and (2) to demolish the retaining wall and
build a retaining wall and noise wall as a unified structure in the location of the
current retaining wall.
3.
Allow LTD to conduct nighttime trucking operations while it pursues a height
variance from the Village of Bannockburn (Bannockburn).
4.
Allow LTD to use the backup beeper on its yard tractor during daytime hours.
5.
Clarify that the PCB’s decision regarding disconnecting backup beepers only
applies to the yard tractor at LTD and does not apply to over-the-road trucks not
owned or operated by LTD.
6.
Allow LTD to load and unload trailers between 10:00 p.m. and 6:00 a.m.
provided its truck dock doors are closed.
7.
After Bannockburn has made its decision regarding the noise wall proposals,
reopen hearing so that LTD may present evidence regarding the wall proposals
submitted to Bannockburn and Bannockburn’s final decision.
8.
After Bannockburn has made a decision regarding the noise wall proposals,
reopen hearing to present findings and recommendations by Mr. Kamperman.
9.
After Bannockburn has made its decision regarding the noise wall proposals,
reopen hearing for consideration of an appropriate remedy. Mot. for Rec. at 2-3.
LTD moves the Board to reconsider and modify the July 24, 2003 order as discussed
above. Should the Board deny LTD’s motion, LTD asks that the Board stay the effect of the
February 15, 2001 and July 24, 2003 decisions pending appellate review. Mot. for Rec. at 12.
LTD contends that pursuant to Supreme Court Rule 335(g), it must first apply for a stay of the
decision with the Board pending review in the appellate court. Mot. for Rec. at 11. LTD requests
4
permission to reply to any response filed by the complainants, and other relief as is just an
equitable. Mot. for Rec. at 12.
LTD’s Arguments
Reliance on Interim Opinion and Order
LTD argues that it relied upon the Board’s findings in the February 15, 2003 interim
opinion and order in preparing for the remedy phase of this matter. Mot. for Rec. at 3. LTD
relied upon the Board’s finding that “elimination LTD’s nighttime operations would not be
economically reasonable . . .” and that $300,000 is a “significant sum” to construct a noise wall
on LTD’s property. Mot. for Rec. at 1. LTD claims it never expected the Board to order a noise
wall in a location other than on the north property line at the cost of two to ten times the original
$300,000 estimate. Mot. for Rec. at 10. For these reasons, LTD contends it did not provide
specific plans for a property line noise wall at the hearings on remedy in October 2002.
Id
.
Restriction on Nighttime Trucking Operations
LTD argues the Board erred in assuming LTD can operate without a night shift. Mot. for
Rec. at 3. LTD argues that LTD president and CEO, Michael Hara, testified that eliminating
LTD’s second shift would “destroy” LTD.
Id
.;
citing
Int. Op. at 14. LTD contends that while it
expected the Board would require it to build a noise wall, LTD felt assured it could continue to
operate at nights while pursuing permission from Bannockburn to build the wall. Mot. for Rec. at
3. LTD continues that it needs to operate beyond 10:00 p.m. to ship customer orders during the
holiday season. LTD further states that the 400 evening employees at the facility will have
weekly gross earnings reduced by 25% based on the shorter work schedule. Mot. for Rec. at 4.
LTD argues the Board’s definition of trucking operations is unnecessarily restrictive.
LTD contends the truck docks have doors that can be closed while trailers are loaded and
unloaded. LTD asserts that to the extent it can load and unload trailers behind closed truck dock
doors, it should be allowed to do so between 10:00 p.m. and 6:00 a.m. Mot. for Rec. at 8.
Location of the Noise Wall
LTD argues the Board ordered LTD to build a wall in the location proposed by Dr.
Schomer based on the misunderstanding that the Huff Company can feasibly build a wall in that
location. Mot. for Rec. at 6. LTD contends Mr. Mitchell, from the Huff Company, testified that
he cannot build a noise wall within the zone of influence of the existing retaining wall. Mr.
Mitchell testified that construction of the noise wall must not interfere with the underground
fabric that currently supports the existing retaining wall. Mot. for Rec. at 6. Further, LTD asserts
that all parties agree a noise wall in the parking lot is not an effective solution.
Id
.
LTD further contends there is no guarantee Bannockburn will approve a noise wall in the
location and of the proportions proposed by Dr. Schomer. Mot. for Rec. at 7. LTD argues that by
allowing LTD to conduct nighttime trucking operations only if it builds a noise wall where
proposed by Dr. Schomer, the Board has effectively permanently shut down LTD’s nighttime
5
trucking operations.
Id
. Accordingly, LTD moves the Board to change its order to allow the
option of a property line noise wall.
Id
. LTD contends that presenting two alternatives is more
likely to result in an approval by Bannockburn. Mot. for Rec. at 8. In addition, a property line
noise wall could be just as effective as a noise barrier in the location proposed by Dr. Schomer.
Mot. for Rec. at 7.
Backup Beeper
LTD argues that the Board erred in ordering LTD to cease and desist from using backup
warning beepers at the Bannockburn facility at any time and replace any backup beepers with a
human spotter or a strobe light. LTD contends it does not have control over all backup beepers at
the site. Furthermore, LTD asserts all evidence in this case focused on the backup beepers being
a nuisance at night. Mot. for Rec. at 8. LTD adds that a strobe light is a reasonable alternative to
a backup beeper at night, but a dock pilot directing trucks during the day will slow down
operations and the yard tractor will have to idle longer while a dock pilot determines if it is safe to
backup. Mot. for Rec. at 9. LTD requests the Board modify the July 24, 2003 opinion and order
to allow LTD to use the backup beeper between 6:00 a.m. and 10:00 p.m., and to clarify that
backup beepers on over-the-road trucks need not be disconnected.
Id
.
New Noise Consultant
Finally, LTD contends that subsequent to the Board’s final opinion and order in this
matter, LTD hired a new noise consultant, George Kamperman, P.E., to look at ways to reduce
noise at the site. Mot. for Rec. at 10. LTD attached a letter from Mr. Kamperman stating his
intent to investigate the site, record and analyze data, and propose a solution that would reduce
LTD’s noise emissions about 10 dBA. Mr. Kamperman states in his letter he will estimate the
magnitude of noise reduction that may be accomplished at various sources and overall. Mot. for
Rec. Exh. B. Mr. Kamperman states he would spend 40 hours of consulting time over one month
to complete this initial proposal for LTD.
Id
.
Board Analysis
The Board grants LTD’s motions for reconsideration and modification. LTD has
presented the Board with new facts not available when the Board issued its July 24, 2003 decision
in this matter. In addition, because the complainants have not responded to LTD’s motion for
reconsideration, modification, and stay or motion to supplement, the complainants waive any
objection to the Board granting the motions.
See
35 Ill. Adm. Code 101.500(d). However, the
Board does not make all of LTD’s requested modifications as the record does not support all of
the requested changes. As discussed below, the Board modifies the final order in this matter with
regard to the definition of nighttime trucking operations, the location of the noise barrier, and the
Board’s order concerning backup beepers at the LTD facility.
Reliance on Interim Opinion and Order
That LTD relied upon the Board’s findings in the February 15, 2001 interim opinion and
order that “eliminating LTD’s nighttime operations would not be economically reasonable” and
6
that $300,000 is “a significant sum” in preparing for the hearings on remedy are not new facts.
LTD raised these issues at the hearings held on the remedy. Tr. at 156-57. The Board does not
grant LTD’s motion for reconsideration based on these facts. Dr. Schomer’s report is dated April
26, 2002.
See
Tr. Cmpl. Exh. A1. Although LTD’s noise expert, Mr. Tom Thunder, does not
recall the exact date he received the report, he testified at hearing it was some time in late Spring
2002. Tr. 12/9/02 at 125, 127. Thus, LTD’s noise expert was familiar with Dr. Schomer’s
proposal for approximately five months prior to the October hearings on remedy and seven
months prior to the hearing date in December. LTD produced no analyses or proposals in
response to Dr. Schomer’s report. The Board maintains that the July 24, 2003 opinion and order
incorporating Dr. Schomer’s proposal should not have come as a surprise to LTD.
At the hearings held on remedy in this matter, LTD did not present the Board with any
information showing that ceasing nighttime trucking operations after 10:00 p.m. would “destroy”
LTD. Again in LTD’s motion for reconsideration, LTD did not provide new information that
would show that LTD suffers undue hardship. However, LTD did provide new information that
changes the Board’s definition of nighttime trucking operations. LTD states it can load and
unload trailers while the dock doors are closed. The Board grants LTD’s motion for modification
regarding the Board’s definition and finds that LTD can load and unload trailers so long as the
dock doors remain closed during the loading and unloading.
Location of Noise Barrier
Regarding the location of the noise barrier, the Board notes again that LTD did not
provide any information at the hearings on remedy on noise barriers at any location on the site.
Furthermore, the Board’s order to build a noise wall in the location proposed by Dr. Schomer was
not based on a misunderstanding as indicated by LTD, but rather on Dr. Schomer’s analysis that a
noise wall built in such location would be the most effective at reducing noise from the site.
In the motion for reconsideration, LTD indicated that it hired a new noise consultant
subsequent to the final opinion and order to investigate the situation on an expedited basis.
In the July 24, 2003 decision, the Board ordered LTD to cease and desist from further
violations of the Act and Board regulations. The Board specified that LTD cease and desist from
nighttime operations until and unless it builds a noise barrier that eliminates the nuisance noise
violations the Board found in the interim opinion and order in this matter. The Board ordered that
any noise wall built must be in accordance with Dr. Schomer’s specifications, as his analysis was
the only one presented to the Board. The Board reaffirms that should LTD construct a noise
barrier, the barrier must cause LTD to cease and desist from nuisance noise violations. However,
the Board modifies the final order to allow LTD to construct a noise barrier in any location on its
property so long as LTD complies with the Act and Board nuisance noise prohibitions.
Backup Beeper
Regarding the use of a human spotter or strobe light in place of backup beepers at the LTD
facility, the Board modifies the final order pertaining to over-the-road trucks only. LTD claims
that “[a]ll evidence in this case focused on the backup beeper being a nuisance at night.” Mot. for
7
Rec. at 8. Accordingly, LTD moves the Board to modify the order and only require LTD to
disconnect the backup beeper during nighttime hours. Mot. for Rec. at 9. Furthermore, LTD
claims that a dock pilot directing trucks during the day will slow down trucking operations and
the yard tractor will idle for a longer time. Mot. for Rec. at 8.
The Board finds that complaints about the noise from backup beepers described the noise
as occurring throughout the day. The interim opinion and order shows that “Karen Roti testified
that the beeping noise from LTD became much more prevalent beginning in August 1999, and
lasted from about 5:30 a.m. until 12:30 p.m.” Int. Op. at 7;
citing
Tr. at 718-21. The Board also
notes that LTD’s argument presents no new evidence regarding the use of a human spotter or
strobe light in place of a backup beeper. LTD has been aware that federal Occupational Safety
and Health Administration (OSHA) regulations require either backup warning devices or
observers to guide trucks since at least 2001. Int. Op. at 14;
see
29 C.F.R. 1926.601(b)(4)(i), (ii).
In addition, the Board has previously held that a human spotter is an acceptable alternative to an
audible warning device. Hoffman v. City of Columbia, PCB 94-146, slip op. at 9 (Oct. 17, 1996).
To the motion to supplement, LTD attached correspondence from Cycle Logistics, the
operator of the yard tractor at the LTD facility, regarding disconnecting the backup beeper during
the daytime hours. Mot. to Supp. at 1. The letter from Cycle Logistics to LTD states it cannot
adjust the volume of the backup warning device on the spotter unit at the LTD facility. However,
the letter does not address the issue at hand: whether Cycle Logistics can disconnect the backup
beeper or install an on/off switch on the spotter unit. The Board finds LTD’s motion to
supplement the motion for reconsideration provides no new information or evidence regarding the
use of a strobe light or human spotter.
LTD also argues that it does not have authority to disconnect the backup beepers on over-
the-road trucks that come to the LTD facility. Mot. for Rec. at 8. The Board did not consider this
fact in the July 24, 2003 order, and modifies its order accordingly. The Board also finds that
hearing transcripts indicate the complainants’ recommendation was only to turn off backup
beepers on the yard tractors, and not the backup warning devices on individual tractors that come
into and out of the LTD facility.
See
Oct. 15, 2002 Tr. at 61. The Board affirms that LTD must
disconnect backup beepers on the yard tractors at the facility consistent with applicable federal
and State law. However, the Board modifies the July 24, 2003 order to allow over-the-road trucks
and tractors not owned or operated by LTD to continue to use backup warning devices at LTD’s
facility.
CONCLUSION
The Board grants LTD’s motion for reconsideration and modification based on new facts
not considered at hearing, grants LTD’s motion to supplement, and modifies the Board’s final
opinion and order in this matter accordingly. The Board affirms the July 24, 2003 order to
disconnect the backup beeper on LTD’s yard tractor during day and nighttime hours. However,
the Board modifies the order to allow over-the-road tractors and trucks not owned or operated by
LTD to use backup warning devices at the Bannockburn facility.
8
In light of newly presented facts, today’s order also clarifies that the restriction on LTD’s
nighttime operations does not include the loading and unloading of trailers between the hours of
10:00 p.m. and 6:00 a.m. provided the truck dock doors remain closed. The Board will not hold
additional hearings on the issue of noise wall proposals. The Board modifies the July 24, 2003
opinion and order to allow LTD to construct a noise wall in any location between LTD’s dock
area and the north property line of LTD’s Bannockburn site. In the event LTD constructs a noise
wall, the Board requires that LTD present proposals consistent with federal and State law that
cause LTD to cease and desist from nuisance noise violations at the Bannockburn facility.
For the parties’ convenience, the Board sets forth below the final opinion and order, as
amended, in its entirety. This supplemental opinion constitutes the Board’s supplemental
findings of fact and conclusions of law.
ORDER
1.
The Board incorporates its February 15, 2001 opinion and order, except as
modified herein, as if fully set forth. That order finds that LTD Commodities
(LTD) has unreasonably interfered with the enjoyment of life in violation of the
nuisance noise prohibitions of 415 ILCS 5/24 (2002) and 35 Ill. Adm. Code
900.102.
2.
LTD must cease and desist from any further violations of 415 ILCS 5/24 (2002)
and 35 Ill. Adm. Code 900.102.
a.
Within 40 days after receipt of this order, LTD must cease and desist from
trucking operations during nighttime hours, between 10:00 p.m. and 6:00
a.m. at the Bannockburn facility. For the purposes of this order, trucking
operations include the coupling and uncoupling of trailers, moving trailers
with the yard tractor, and the loading and unloading of trailers, except
when the loading and unloading of trailers occurs while truck dock doors
remain closed.
b.
Within 40 days after receipt of this order, LTD must cease and desist from
using backup warning beepers at the Bannockburn facility on any yard
tractor owned and operated by LTD. LTD must replace any backup
warning beeper with either a human spotter or a strobe light in accordance
with applicable State and federal law.
c.
Within 40 days after receipt of this order, LTD must cease and desist from
parking, standing or idling trucks, tractors or semi-trailers on Lakeside
Drive and the ramp connecting LTD’s dock area with Lakeside Drive.
3.
If LTD constructs and completes a noise barrier in accordance with the following,
it is not subject to paragraph 2.a., b., and c. of this order.
9
a.
The noise barrier may be built in any location between LTD’s dock area
and the north property line of LTD’s Bannockburn site such that the
barrier causes LTD to cease and desist from nuisance noise violations at
the Bannockburn facility.
b.
If the barrier is built immediately north of LTD’s dock area, the barrier
must be 520 feet in continuous length and must be of uniform elevation
with a wall-top elevation of 710 feet. If the barrier is built in any other
location, the height of the barrier must be calculated in accordance with
International Standardization Organization document ISO 9613-2:1996
entitled “Acoustics-Attenuation of Sound During Propagation Outdoors-
Part 2: General Method of Calculation” to achieve a reduction in noise
emissions as specified in subparagraph (e) of this order.
c.
The barrier must be designed and constructed in accordance with good
engineering practices and under the supervision of a qualified noise
control engineer.
d.
The barrier must be constructed out of integral sound absorbing metal,
concrete, concrete-lik, or other material with equal or greater integral
sound absorbing properties.
e.
The barrier must reduce LTD noise emissions at the Roti, Rosenstrock,
and Weber properties by 10 dB in the 1kHz octave band.
f.
LTD must maintain the wall in good condition.
4.
LTD must pay a civil penalty of $15,000 for violating 415 ILCS 5/24 (2002) and
35 Ill. Adm. Code 900.102.
a.
LTD must pay this penalty by Match 6, 2004, which is the 30th day after
the date of this order.
b.
LTD must by certified check or money order payable to the Treasurer of
the State of Illinois, designated to the Environmental Protection Trust
Fund. The number, case name, and LTD’s social security number or
federal employer identification number must be included on the certified
check or money order.
c.
LTD must send the certified check or money order to:
Illinois Environmental Protection Agency
Fiscal
Services
Division
1021 North Grand Avenue East
P.O.
Box
19276
Springfield,
Illinois
62794-9276
10
d.
Penalties unpaid within the time prescribed will accrue interest under
Section 42(g) of the Environmental Protection Act (415 ILCS 5/42(g)
(2002)) at the rate set forth in Section 1003(a) of the Income Tax Act (35
ILCS 5/1003(a) (2002)).
IT IS SO ORDERED.
Board Member T.E. Johnson 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
101.520;
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 supplemental opinion and order on February 5, 2004, by a vote of 3-1.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
