ILLINOIS POLLUTION

CONTROL BOARD

October

1998

CHARTER HALL HOMEOWNER’S

)

ASSOCIATION and JEFF COHEN,

)

Complainants,

)

PCB 98-81

OVERLAND TRANSPORTATION

)

(Enforcement

Citizen,

Noise)

SYSTEM,

INC. and D.P.

CARTAGE, INC.,)

)

Respondents.

)

BILL S.

FORCADE AND STEVEN M.

SIROS, OF JENNER & BLOCK, APPEARED ON

BEHALF OF

COMPLAINANTS;

and

MARK

J. STEGER,

OF MCBRIDE, BAKER

& COLES, APPEARED

ON BEHALF OF

RESPONDENTS.

INTERIM OPINION AND ORDER OF THE BOARD

(by K.M.

Hennessey):

This

citizens’ enforcement action concerns a trucking terminal in Palatine, Illinois.

Respondent Overland Transportation System,

Inc.

leases the trucking terminal to respondent,

D P. Cartage, Inc.,

which operates the facility.

Complainants, Charter Hall Homeowner’s

Association and Jeff Cohen,

allege that noise from the trucking terminal exceeds Illinois’

numeric

sound limits and unreasonably interferes with the lives of residents

living immediately

east of the trucking terminal.

Complainants maintain that respondents therefore have violated

the Illinois

Environmental Protection Act

(Act),

415

ILCS

5/1

et seq.

(1996),

and Board

regulations.

Complainants request that the Board order respondents to undertake several

measures to

ensure that the noise will be abated,

impose civil

penalties,

and grant other relief.

The Board fmds

that complainants have failed to establish that respondents violated the

Board’s numeric

sound limits.

However, the Board does find that noise

from respondents’

facility has unreasonably interfered with the enjoyment of life.

The Board therefore

finds that

respondents

have violated the Act and

the Board’s regulations.

The hearing officer bifurcated hearings in this matter at the request of the parties.

The

initial

hearing was to address only

whether respondents violated the Act

and regulations.

Having found violations, the Board now orders this

matter to hearing on an expedited basis to

address the issue

of remedies,

including civil penalties.

PROCEDURAL

MATTERS

Overview

Complainants filed a

complaint on December 9,

1997.

On January 22,

1998,

the Board

accepted this matter for hearing.

Hearing Officer Jack Burds held a hearing in this matter

from May

12,

1998, through May

14,

1998.

Complainants presented

witnesses:

eight

residents and three sound experts.

Complainants

also offered 26 exhibits,

all ofwhich

were

admitted.

Respondents presented one witness, an Overland employee.

Respondents offered

two

exhibits, both of which were admitted.

The parties also offered

one joint exhibit,

which

was admitted.’

Both parties filed posthearing briefs.

Scope of Initial Hearing

On May 8,

1998,

respondents filed an agreed motion.

In the motion, the parties

requested,

among other things, that the hearing officer bifurcate the hearings in this

matter so

that the

initial hearing would

“only relate to liability with the

civil penalty issue being reserved

for future hearing dates, if any.”

On May 12,

1998, the hearing officer granted the motion,

stating

that the initial

hearing “will relate only to liability,”

and noting that an additional

hearing, if necessary,

will

“deal with

any civil penalty to be imposed.”

The parties now disagree on the

scope of the initial

hearing.

In its posthearing brief,

complainants ask that the Board not only find respondents in violation, but also that the Board,

in its

interim order,

grant complainants the following relief:

(1) order

respondents to cease

and desist from further violations; (2) establish sound limits

applicable specifically

to the

trucking terminal;

(3) order respondents

to continuously monitor sound from the facility to

ensure that respondents comply

with the site-specific sound

limits;

(4) order respondents

make certain physical and operational changes at the facility to abate

noise;

(5)

establish fixed

penalty

amounts that respondents must pay for any future violations; and

(6) order respondents

to post a performance bond or other security to ensure timely performance of noise

abatement

measures.

Complainants expect the next hearing to address only

civil penalties for past

violations.

Respondents state in their response brief that under the hearing officer order of May

12,

1998,

this portion of the proceeding only

relates to liability

and that the issues of civil

penalties and other remedies are reserved for a future hearing, as needed.

The Board agrees with respondents.

The Board finds the hearing officer order

unambiguous

on the scope of the

initial hearing.

The

initial hearing was limited

“only to

liability.”

While

a second hearing, if necessary,

would address any

civil penalties, the hearing

officer order did not limit that second hearing to

“only” civil

penalties.

Accordingly, this

The transcript of the hearing is cited as “Tr.

.“

Hearing exhibits are cited as follows:

complainants’

individual exhibits are cited as “Comp. Exh.

_;“

complainants’ group exhibits

are cited

as “Comp.

Grp. Exh.

_;“

respondents’

exhibits are cited as “Resp.

Exh.

;“

and the

joint exhibit is cited as

“Joint Exh.

.“

interim order will address only liability,

i.e.,

whether respondents violated the Act and Board

regulations.

However, Board findings of fact and conclusions of law

in this interim opinion that are

relevant to the

issue of remedies,

including civil penalties, may be relied upon by the parties

for those purposes.

Consistent with the Board’s earlier order

granting complainants’ request

for expedited consideration, the Board orders this matter to hearing on an expedited basis.

hearing, the parties may introduce any

evidence not already

in the record that

is relevant to the

issue of remedies,

including civil penalties.

Motion to Dismiss

In their posthearing response brief,

respondents move to dismiss

Charter Hall

Homeowner’s Association for lack of standing.

Respondents maintain that for an association

have standing,

it must have a recognizable

interest capable of being affected in the dispute.

The Board denies respondents’ motion to dismiss.

Under Section

3 1(d) of the Act,

“any person may file with

the Board a complaint.”

415

ILCS

5/31(d)

(1996).

The Act defines

“person” as follows:

any

individual, partnership, co-partnership,

firm, company, limited

liability

company, corporation,

association, joint

stock company, trust,

estate,

political

subdivision,

state agency, or any

other legal entity, or their legal

representative,

agents or assigns.

415 ILCS

5/3.26

(1996).

Charter Hall Homeowner’s Association is a

“person” under the Act

and is

proceeding under

Section 31(d) of the Act.

Section

31(d) imposes

no requirement that a person must be

injured

or adversely affected to

file a complaint with the Board.

Accordingly, Charter Hall

Homeowner’s Association has standing.

Motion to

Strike and

Motion for Leave to Add Complainants

In their response brief, respondents

also move to

strike the testimony of the seven

nonparty residents that complainants presented.

Respondents maintain that all

resident

testimony, except for Mr.

Cohen’s, should be stricken because these witnesses “are not parties

to this

action and their testimony

irrelevant to the allegations made by Mr. Cohen.”

The Board denies respondents’

motion to

strike.

First,

there is

no requirement that

only named complainants can be witnesses.

Second,

the testimony of the nonparty residents

relevant to

whether respondents have unreasonably interfered with the enjoyment of life in

violation of the Act and

Board regulations,

as alleged in the complaint.

In their reply brief, complainants moved for leave to add the seven nonparty witnesses

as complainants if the Board agreed with respondents.

Since the Board denies the motion to

strike,

complainants’ motion

is moot.

FINDINGS OF FACT

Description of Parties and

Vicinity

Overland Transportation System,

Inc.

(Overland)

leases a trucking terminal to D.P.

Cartage,

Inc.

(Cartage).

Joint Exh.

at 3.

The trucking terminal (facility)

is located at 419

West Northwest Highway in Palatine, Illinois.

Tr.

at 459.

Cartage operates the facility on a

day-to-day basis.

Joint Exh. at

Overland and Cartage are owned by

Vitran Corporation.

Joint Exh.

Cartage and

Overland have been combined.

Tr.

at 459-460.

The Board

refers to Overland and Cartage collectively as

“Overland”

or respondents.

Charter Hall Homeowner’s Association is a not-for-profit corporation that was formed

1992.

It is

composed ofhomeowners from approximately

50 residential property

lots

located along the east and west sides of a generally north-south street, Charter Hall Drive,

Palatine, Illinois.

The northern

boundary of these residential lots

is Northwest Highway.

Tr.

12-14;

Comp.

Exh.

1; Joint Exh.

at 2-3, Exh.

The Board refers

to this

residential

development as “Charter Hall.”

The trucking terminal

is located immediately east of a number of the Charter Hall

homes.

These homes are on the east side of Charter Hall Drive.

The trucking terminal’s

western boundary

abuts the easternmost lot line

of Charter Hall lots

through 23.

The

addresses for these lots are

605,

609,

613,

627,

631,

635,

639,

643,

647,

655,

659,

663, 667,

679,

683,

687,

691,

695,

and 699 Charter Hall Drive.

Tr.

at 12-16,

51-53,

92-93,

124-126,

157-159, 181-184, 203-206,

248-251;

Comp.

Exh.

Comp.

Grp. Exh.

1, Photo

Comp.

Grp. Exh.

Photo

5-11,

13,

14,

16-18,

21,

22,

24-26;

Joint Exh.

Exh.

A small plaza of offices and stores

located immediately

north of the facility.

Northwest Highway

is immediately

north of the plaza.

Tr.

at 33,

56-58;

Comp.

Exh.

Comp.

Grp.

Exh.

Photo

A shopping center is located immediately east of the trucking

terminal and to the south of the facility

a marsh or swamp.

Tr.

at 34,

38,

183-184, 421;

Comp.

Exh.

Other residential subdivisions are located both immediately north of Northwest

Highway and immediately

west of Charter Hall.

Charter Hall

is the only residential

subdivision directly adjacent to the trucking terminal.

Tr.

35,

38-39;

Comp.

Exh.

Charter Hall

The homes

immediately west of the trucking terminal are two-story townhomes.

Off of

their first floors to the east, they have patios.

East of the patios, the homes have backyards.

wooden fence approximately

eight feet tall stands at the eastern edge of the backyards and

faces the trucking terminal.

Trees are planted just to the west of the fence and extend above it.

Pulte Home Corporation (Pulte), which built Charter Hall, constructed the fence.

The fence

blocks the view of the trucking terminal from the first floor of the homes.

The distance from

the fence to

the eastern edge of the homes ranges

from approximately

30 to

feet.

Tr.

14,

16-17, 36-37, 47,

51-53,

86-87,

92-93, 118,

124-126, 128-133,

137,

138,

157-159,

182-184,

203-206,

248-251;

Comp.

Exh.

Comp.

Grp.

Exh.

1, Photo

Comp.

Grp.

Exh.

Photo

2, 5-11, 13, 14, 21, 22, 24; Joint Exh. at 2.

The eastern sides

of the homes’

second floors have one or more bedrooms

with

windows.

Looking from these windows,

homeowners

can view the trucking terminal beyond

the wooden fence.

Many ofthe operations at the trucking terminal are visible from this

vantage.

 Tr. at 16-17, 52-53,128-133, 137, 138,

157-159,

 182-184, 205-206, 249-251;

Comp. Exh. 1; Comp. Grp. Exh. 2, Photo 1, 2, 5-11, 13, 14, 21, 22, 24.

The wooden fence divides Charter Hall and

the trucking terminal.

Tr.

35.

The

fence runs north-south along

the

 backyards of699 through 627 Charter Hall Drive.

 Tr. at 36;

Comp.

Exh.

There is a drop off on the Overland side of the fence because the fence sits

top of an approximately

eight to

foot tall berm.

The berm slopes

down from the bottom of

the fence approximately

22 feet to the asphalt of the facility’s west side.

Tr.

at 36-38, 87;

.Comp.

Grp. Exh.

1, Photo

Overland’s

Operations

Overland operates the facility as a motor freight terminal for the loading and unloading

of trailer trucks.

The facility’s Standard Land Use Coding Manual

(SLUCM) Code

designation is

4221

(motor freight terminal),

as identified in

Ill.

Adm.

Code 901.Appendix

Joint Exh.

at 3-4.

Overland provides freight service for general commodities.

delivers

on a next morning, next day, or two day basis.

Its

customers include Medline, a distributor of

medical supplies.

Tr.

at 469-470, 475, 477.

The facility has one building,

which runs north-south on the property.

The northern

portion ofthe building has administrative offices.

The southern portion of the building is

the

loading dock,

which has

15 bays on its west side and

bays on

its

east side.

The distance

from the west side of the loading dock to the wooden fence at Charter Hall

is approximately

170

feet.

Comp.

Exh.

Trailer trucks arrive at the facility from Northwest Highway.

If the trailer

is to be

unloaded immediately

upon arrival,

the driver

drives it to

one of the bays at the terminal where

it is unloaded.

Ifthe trailer is not to be immediately unloaded, the driver parks it on the east

side of the facility.

Overland uses a yard spotter to

move both empty

and loaded trailers

around the facility.

Tr.

at 30,

482-484, 496;

Joint Exh.

at 3-4.

Overland divides the facility’s operations into a.m. and p.m.

shifts.

The a.m.

shift

begins when the shift supervisor arrives at the facility at 2:00 a. m.

The

a. m.

shift’s dock

workers arrive at approximately 3:00 a.m. and begin to

unload the trailers.

Unloading and

loading continues until

approximately

10:00

a.m.

Trucks that are to be unloaded on the a.m.

shift begin to

arrive at the facility at

11:00 p.m.

The a.m.

shift unloads and loads

approximately 30 trucks,

most ofwhich arrive at the facility between 5:00 a.m.

and

8:00 a.m.

Tr.

at 472-476; Joint Exh.

at 3-4.

~Thep.m.

shift begins at 1:00 p.m.

when the shift supervisor arrives.

The trucks that

are to

be unloaded on the p.m.

shift begin to arrive at the facility at 2:00 p~m. Overland’s

dock workers on the p.m.

shift arrive between 2:30 p.m.

and 3:00 p.m.

and begin unloading

trailers.

The p.m.

shift unloads and loads approximately

30 to 40

trucks and

continues until

approximately

12:00 midnight.

Tr.

at 477-480; Joint Exh.

at 4.

Overland parks empty trailers on the asphalt area immediately west of its

building.

This

asphalt area

immediately east of Charter Hall.

Most of the parked trailers are located

in this area.

Loaded trailers

are not parked in this

area.

Overland parks truck cabs

and some

trailers

in the asphalt area immediately east of the building.

The east side has room

to park

additional trailers.

Tr.

at 56-61,

83,

133-138, 495;

Comp.

Exh.

Comp.

Grp. Exh.

Photo

1-5;

Comp.

Grp.

Exh.

Phot 15-20, 23, 25,

26.

Overland has chain link fencing running east-west on

both the north and south sides

the facility.

Tr.

at 38,

197-198.

In addition to parking on the west and east sides of its

building,

Overland parks trucks immediately

north of the northern fence,

i.e.,

between the

northern fence and the small plaza further to

the north.

Tr.

at 205-206, 422-423, 427;

Comp.

.Exh.

Comp. Grp. Exh.

Photo 2;

Comp.

Grp.

Exh.

2, Photo

16-19.

The marsh or swamp

lies beyondthe southern fence.

Tr.

at 38,

183-184, 198,

421.

Overland employs 41

people at the facility (28 drivers,

eight

dock workers,

five clerical

and administrative persons).

In 1997,

its payroll was just over one million dollars and it paid

approximately $102,000 in taxes.

Tr.

at 468-469.

History of Property Uses

The trucking terminal was built in

1972.

Before Overland’s

arrival in November

1995,

Yellow Freight operated the facility.

The facility was vacant for approximately

six to

nine months between the respective operations of Yellow Freight and Overland.

Tr.

at 206-

208,

272,

292-293, 510; Resp.

Exh.

Overland’s

operations involve more trucks

and

activities than did those of Yellow Freight.

Tr.

at 18-19, 23,

25,

49,

63,

82,

93-95,

110-111,

186,

195,

207-209, 252-253, 272-273,

288-289.

Pulte built Charter Hall in 1991-1992.

Joint Exh.

at 2.

Pulte provided written notice

that

the real estate upon

which the trucking terminal is

located

is zoned for industrial uses and

is presently being used as a motor freight terminal that operates 24 hours per day.

Joint Exh.

at 2,

Exh.

Pulte recorded the notice with the Cook

County recorder on October 30,

1992.

Joint Exh.,

Exh.

Complainants presented the testimony of eight Charter Hall residents,

all

of whom own

homes on the east side of Charter Hall Drive,

next to the trucking terminal.

Tr.

at 11-12,

15-

16,

40,

5 1-52,

92-93,

124;

Comp.

Exh.

Complainant Jeff Cohen and his

wife, Tara Cohen,

purchased and moved into their home in November

1992.

Tr.

at 11-12,

15-16, 40.

He is

the

president of complainant

Charter Hall Homeowner’s Association.

Tr.

15.

Before moving into his home,

Mr. Cohen was aware of Pulte’s notice regarding the

neighboring trucking operation.

Tr.

at 17-18.

Mr.

and Mrs.

Cohen visited their property

several times before purchasing it and

never found the noise

from the trucking operation

7

troublesome.

The visits took place during the day and

in the early evening.

At the time,

Yellow Freight operated the facility.

Tr.

18-19, 40-41.

Mary Ann and Dennis Bergau moved into their home in June

1993.

Tr.

1-52,

117-

118.

They were aware of the trucking terminal before they purchased their home.

They drove

past the trucking terminal several times

before purchasing their home

and did not hear any

noise.

The visits took place in the early evening and during the day and on one

occasion at

approximately 9:00 p.m.

Yellow Freight operated the facility at the time.

Tr.

at 61-63, 82,

87-88,

93,

110,

118.

Behram Dinshaw purchased his home in

August 1996.

Tr.

125.

He was aware of

the trucking operation before he purchased his home, but was unaware of Pulte’s written notice

regarding the operation.

Tr.

at 138-139.

Before purchasing

his home,

Mr. Dinshaw visited

Overland and was told that the facility shuts down at 10:00 p.m.,

that they do not work on

weekends, and

that they do not

disturb neighbors.

Tr.

139.

Mr. Dinshaw also visited his

property several times before purchasing it and found it to be

quiet.

One visit took place on a

Saturday and another took place at around midnight on a Friday.

Tr.

at 139-140,

155.

Tibebu Senbatta and his

wife moved into their home in May 1997.

Tr.

158.

At the

time,

he was aware of the trucking operation but not Pulte’s written notice.

Tr.

160.

Before purchasing their home, they visited

the property

at least ten times and heard no

objectionable

noise coming

from the trucking terminal.

These visits occurred at around 6:00

a.m., 6:00 p.m.,

and 9:00 p.m.

Mr. Senbetta also phoned

Overland and was told that the

facility stops operations by around

10:00 p.m. and that he need not be concerned about noise.

Tr.

at 160-162,

173-174, 179-180.

Kathryn Hayden and her husband moved into their home in December

1992.

Tr.

182.

At that time,

they were aware of the trucking operation.

They found out

about the Pulte

notice at their closing.

Tr.

184.

They visited their property

during the construction of their

home.

The construction created alot ofnoise,

but Ms.

Hayden could not

recall if she heard

noise from the trucking facility, which Yellow Freight operated at the time.

Tr.

at 184-186.

Judith Lexby moved into her home in June

1995.

Tr.

at 204.

At the time,

she was

aware of the trucking terminal,

but it was vacant.

The residents who

sold her the home told

her that noise from Yellow Freight was very minor and had not caused them any

problems.

Tr.

at 206-208.

Existence

and

Sources of Noise

Complainants’ witnesses complained primarily about three types of noise from

Overland.

First,

they hear a bang

sound caused by

the hitching of trailers

to the trucks or to

the yard spotter.

The back end of the truck or yard

spotter has a device that locks into a device

on the front end of the trailer.

To lock properly, the truck or yard spotter must back into the

trailer with some speed.

This collision creates

the bang

sound.

Tr.

at 21-22,

67,

97-98,

142-

143, 167, 481-482.

Second,

complainants’ witnesses hear bang sounds

that forklifts

cause

When they load

and unload trailers.

The forklifts cause a double bang

sound when they drive over dock plates.

The dock plates are made of metal

and they extend from the loading dock to the trailer when

the

trailer has pulled into a bay.

The dock plates rest on the back of the trailer, which is

also

made of metal.

The forklifts drive over the dock plates when they drive into and out of the

trailers to

load

and unload.

The double bang comes from each set of a forklift’s wheels hitting

the dock plate.

In a

10 minute period of loading and unloading,

the homeowners

may hear the

double

bang

approximately 30

to 40 times.

The forklifts

cause another bang sound when they

drop loads

in trailers.

The various bang sounds

are impulsive

in nature and

last approximately

one to two

seconds each time.

Tr.

at 21-22,

66-67, 97,

142,

166,

190-192, 212,

255-256,

259-260,

289-290, 480-481;

Comp.

Exh.

16,

17.

Third, complainants’ witnesses hear the sound of metal dragging on

asphalt when the

truck or yard spotter pulls a trailer that has not been properly hitched.

The sound is the trailer

dragging on the asphalt.

This activity

causes the homes of complainants’ witnesses to vibrate.

The dragging sound lasts for approximately

seconds each time and occurs much less

frequently than the bang

sounds.

Tr.

at 21-22, 24,

67-68, 98,

101,

143,

167,

191-192, 257,

260, 289-292.

Most of complainants’ witnesses identified these sources of the noise by

either

firsthand

observation or based on conversations with Overland.

Overland does not dispute that it

generates these noises

from these sources or that complainants’ witnesses hear these noises.

Tr.

21,

66,

142-143, 145,

166,

256,

480.

Interference

When Yellow Freight operated the trucking terminal, the noise it generated either

did

not disturb complainants’

witnesses or disturbed

them much less

frequently.

Tr.

at 18-19, 23,

49 (Jeff Cohen),

63,

82 (Mary Ann Bergau), 93-95,

110

(Dennis Bergau),

186

(Kathryn

Hayden),

252,

273,

288-289 (Tara Cohen).

For most of the witnesses,

noise problems began

when Overland took over the trucking terminal.

Overland noises occur more frequently than

did those of Yellow Freight.

Tr.

23,

(Jeff Cohen),

63,

82 (Mary Ann Bergau), 93-94,

110-111

(Dennis Bergau),

186,

195

(Kathryn Hayden),

207-209 (Judith Lexby), 252-253, 272,

288-289 (Tara Cohen).

Overland’s noise bothers

complainants’ witnesses almost daily.

The disturbances

typically occur throughout the week with the exception of Sunday

during the day.

The

residents hear the noises

repeatedly during Overland’s

a.m.

and p.m.

shifts.

Tr.

at 19-21,

25,

31,49 (Jeff Cohen),

63-65,

80,

(Mary Ann Bergau),

95-97,

100-101,

110-111 (Dennis

Bergau), 140-141,

148-149, 152

(Behram Dinshaw),

163-165,

174,

176

(Tibebu Senbetta),

187-190 (Kathryn Hayden),

209-211 (Judith Lexby), 252-254 (Tara Cohen).

Because of Overland’s noise,

complainants’ witnesses and their family

members have

difficulty falling asleep or are awakened from

sleep.

Tr.

at 20,

23-25 (Jeff Cohen),

67,

72-73,

77,

80 (Mary Ann Bergau),

95-102 (Dennis Bergau),

140-142,

147-149,

15 1-152 (Behram

Dinshaw),

163,

165-166,

169,

171-172 (Tibebu Senbetta),

188-190,

193-195 (Kathryn

layden),

210,

215-219 (Judith Lexby), 253-254, 261-262,

264-265, 269-272 (Tara Cohen).

Their sleep is

frequently

disrupted.

Tr.

at 24

(Jeffrey

Cohen),

72-73, 77,

82 (Mary Ann

Bergau), 95-97, 99,

102

(Dennis Bergau),

141-142,

147-149 (Bebram Dinshaw),

194-195

(Kathryn Hayden),

210

(Judith Lexby), 269-272 (Tara Cohen).

For example, Overland’s

noise

wakes up Mary Ann Bergau every night.

Tr.

at 82.

Complainants’ witnesses also

do not use their patios or backyards or leave their

windows open because of the noise.

Tr.

at 23-24 (Jeff Cohen),

64,

(Mary Ann Bergau),

(Dennis Bergau),

150 (Behram Dinshaw),

192-193,

195

(Kathryn Hayden.),

273

(Tara Cohen).

In addition, the noise disrupts residents when they watch television and carry on normal

conversations.

Tr.

at 24

(Jeff Cohen),

64,

81-82 (Mary Ann Bergau),

101

(Dennis Bergau),

150 (Behram Dinshaw),

169-171 (Tibebu Senbetta),

187 (Kathryn Hayden),

210,

218

(Judith

Lexby),

273

(Tara Cohen).

It also limits the residents’

ability to entertain guests.

Tr.

at 81

(Mary Ann Bergau),

101

(Dennis Bergau),

151

(Behram Dinshaw),

193

(Kathryn Hayden),

217-218 (Judith Lexby), 274 (Tara Cohen).

Several of complainants’

witnesses kept logs

to document the noise from

the trucking

terminal.

Mr. Bergau kept a log from October 28,

1996,

to September 3,

1997.

He made an

entry only when noise

from the facility woke him up.

Mr. Bergau made entries on

approximately

134 different dates.

Besides the date,

Mr. Bergau noted the time ofthe

disturbance.

On some

dates, he

entered more than

one time,

such as on January 3,

1997, when

he noted disturbances at

12:40

a.m.

and 4:00 a.m.

The noise from the trucking terminal woke

up Mr. Bergau approximately

146 times.2

All but several of his entries are between 10:00

p.m.

and 8:15 a.m.,

with the majority ofhis entries falling between 2:00 a.m. and 6:00 a.m.

Tr.

at 99-100;

Comp.

Exh.

Mr.

Dinshaw kept a noise log from November 21,

1996,

to April

1997.

He made an

entry only when noise from the trucking terminal awakened him.

Mr.

Dinshaw made entries

on approximately

89 different dates.

He also noted the

time of the disturbance.

On many

dates, he made multiple time

entries,

such as 2:15 a.m.

and 5:30 a.m. on November 25,

1996.

The trucking terminal noise woke up Mr. Dinshaw approximately

122 times.

All but several

of his entries are between 11:45 p.m.

and 8:15 a.m.,

with

the majority of his entries falling

between 2:00 a.m.

and

6:00 a.m.

Tr.

146-149; Comp.

Exh.

Mrs.

Cohen kept a noise

log from October 7,

1996,

to May 12,

1998.

She

made an

entry each time noise

from the facility woke up or kept up her or her husband, Jeffrey

Cohen.

Mrs.

Cohen made these entries on approximately

208 different dates.

The trucking terminal

For Mr.

Bergau’s log,

if the entry

on a given date notes two different times

separated by a

hyphen

(e.g.,

3:15 a.m.

5:00 a.m.

on January 2,

1997) or a space

(e.g.,

3:30 a.m. 4:00 a.m.

 October 31, 1996),

the Board counted this

as one instance of being awakened by the

trucking facility noise.

If the log entry on a given date notes two different times separated by a

comma

(e.g.,

12:40 a.m., 4:00 a.m. on January

1997) or a described activity

(e.g.,

 2:00

a.m. “loading”

11:45 p.m.

on October 28,

1996),

the Board counted this as two

instances of

being awakened by the

noise of the trucking operation.

noise woke up

or kept up

Mrs.

Cohen or her husband approximately 284 times.

Tr.

at 260-

269;

Comp.

Exh.

8-10.

The noise problem was continuing

as of the time of the hearings.

Tr.

at 24-25,

31-32

(Jeff Cohen),

82-83 (Mary Ann Bergau),

98-101 (Dennis Bergau),

141,

147-148,

153-154

(Behram Dinshaw),

171

(Tibebu Senbetta),

219 (Judith Lexby), 260,

527-528 (Tara Cohen).

Some of complainants’ witnesses occasionally hear sounds

from sources other than

Overland,

such as airplanes, but these other sounds do

not disrupt their lives.

Tr.

at 47-48,

89-90,

155-156,

176,

201-202.

Sound Measurements

Sound Measurements of Citizens

Mrs.

Cohen used a Radio Shack sound level

meter at her bedroom window to

measure

sounds

coming from the trucking terminal.

Greg Zak of the Illinois

Environmental Protection

Agency

(Agency)

recommended this particular measuring device

to Mrs.

Cohen and instructed

her how to use it.

Mr.

Zak is an expert in sound measurement,

sound control, and human

response to noise.

He has past experience assessing

and addressing noise

from trucking

operations and he observed

the Overland facility from several vantages on May 8,

1998.

Tr.

at 274-276, 387-389,

392-393, 401,

419-423, 43 1-432; Comp.

Exh.

20.

The Radio Shack sound level meter has three settings:

(1) the range (from 60 to

120

decibels in

decibel increments); (2) the weighting (“A”

or “C”);

and (3) the response (slow

or fast).

Mrs.

Cohen set her meter for A-weighting and slow response.

She set the range

either at 60

or 70 decibels.

The instrument also has a scale that shows

sound measurements up

10 decibels below and up to

six decibels above the range setting.

For example, if the range

is set at 60

decibels,

the meter can measure from 50

to 66 decibels.

In this

example, 50

decibels would be

the baseline.

Tr.

at 276-278,

287, 392-393;

Comp.

Exh.

11-13.

She

selected baselines of 50 or 60 A-weighted decibels

(i.e.,

enabling her to measure

sounds of 50 to

66 A-weighted decibels or 60

to 76 A-weighted decibels,

respectively) because

she wanted to record any

sounds from the trucking terminal that exceeded certain of the

Board’s nighttime numeric

sound limits,

which,

when A-weighted, equal 51

A-weighted

decibels.3

Tr.

at 277,

309.

By turning on the instrument,

the user automatically causes the battery to be checked.

Mrs.

Cohen took measurements from her second floor

master bedroom window,

which faces

the facility.

She would open her

window and hold the meter in the middle of the window and

to the

side of her body.

Tr.

at 274-277.

~The Board discusses its

numeric sound limits and A-weighting

at pages

15-17, 21-22.

11

Mrs.

Cohen took numerous

measurements from April

17,

1996,

January 23,

1998.

She noted the dates and times of the measurements.

She

measured for

10 or

second

intervals and

immediately wrote down the decibel readings that she observed

on the meter’s

scale.

She

wrote down the highest decibel reading of the

or 15

second

interval, but many

times also included the lowest decibel reading within the same interval, reflecting the decibel

change within the

10 or

second

interval.

She also often recorded the type of noise

(e.g.,

bang) and its

source

(e.g.,

forklift).

She noted if a noise came

from a source other than the

trucking terminal, such as an airplane.

Following

Mr. Zak’s

instructions,

Mrs.

Cohen later

transcribed many of her readings

onto

checkmark survey data sheets that he provided.

Tr.

276-285, 298-304,

306-308, 310-311;

Comp.

Exh.

12,

13.

For example,

on August

16,

1996,

Mrs.

Cohen took a number of measurements at

second intervals between 4:24 a.m.

and 4:34 a.m.

During each of four separate

10 second

intervals,

she recorded bangs from forklifts entering and

exiting trailers

at 66 A-weighted

decibels.

Tr.

at 308;

Exh.

at 32.

On April 26,

1996,

she took numerous measurements at

second intervals between

5:05

a.m. and 5:20 a.m.

During each of six separate

second

intervals,

she recorded the following changes in A-weighted decibel levels associated with

bangs:

(1) 52 to

decibels; (2) 52 to 64 decibels;

(3) 52 to 66 decibels;

(4) 52 to

62 decibels;

(5)

52 to 66

decibels;

and

(6) 54 to

64 decibels.

Exh.

at 7.

The majority of Mrs.

Cohen’s

sound measurements of the trucking terminal fall between 52 and 74 A-weighted decibels.

Many of those measurements were taken between 10:00 p.m.

and

7:00 a.m.4

Exh.

12.

At hearing, Mr.

Zak calibrated Mrs.

Cohen’s sound level meter

and found it accurate.

He opined that this type of sound level meter’s calibration does not vary significantly

over time

and that in all

likelihood it was properly calibrated when Mrs.

Cohen used it.

Roger Harmon

and Thomas Thunder

(sound experts, as described below),

both of Acoustic Associates,

Ltd.,

and Mr. Zak were present at hearing and heard Mrs.

Cohen’s testimony.

All

three appeared as

witnesses for complainants.

Each opined that the Radio Shack sound level

meter provides

reasonably accurate decibel level

measurements and

that the measuring techniques that Mrs.

Cohen used would

have produced reasonably accurate decibel

level measurements of the sound

that the trucking terminal generated.

Tr.

at 332-333, 341-342,

367-369, 393,

395-401.

Mr. Zak and Mr. Thunder opined that sound level changes of eight to

12 A-weighted

decibels

over

10 to

15 second intervals that Mrs.

Cohen measured would

interfere with (1)

sleep; (2) normal conversation; (3) watching television;

and (4) entertaining guests

on a patio.

Tr.

at 369-372, 401-403.

Mr. Bergau also used a Radio Shack sound level meter

to measure the sounds of the

trucking facility.

On April 30,

1996,

and May

1996,

he took measurements from his

open

second floor bedroom window facing the facility.

Mr. Bergau set the

sound level meter on

slow response with a range of either 60 or 70 decibels.

He took measurements over

minute

intervals.

He recorded the readings

from the meter on checkmark survey data sheets.

Mr.

~ These are “nighttime hours” under the Board’s regulations.

See

35 Ill.

Adm.

Code 900.100.

Bergau received the data sheets from Mrs.

Cohen,

who had received them from Mr. Zak.

Tr.

103-1 14;

Comp.

Exh.

6.

Mr. Bergau testified that some of the readings from the sound

level meter were at 78

decibels, but

none of the data sheets

show

a reading of 78 decibels.

Tr.

at 105;

Comp.

Exh.

On cross-examination, Mr. Bergau could not remember how he recorded the measurements on

the data.sheets.

Tr.

115.

Complainants provided no evidence on whether Mr. Bergau set

his

sound level

meter

on A or C

weighting when he took measurements or whether he recorded

the highest reading during the

minute intervals.

In addition, complainants’

experts provided

no opinion on whether Mr. Bergau properly took or recorded the sound measurements.

Sound Measurements of Acoustic Associates.

Ltd.

Roger Harmon of Acoustic Associates, Ltd.,

is an expert in sound measurement.

Tr.

321-325;

Comp.

Exh.

14.

He has prior experience measuring truck and trailer noise.

November 26,

1996,

in the Cohens’ backyard, Mr. Harmon took measurements of sound that

the Overland facility generated.

He recorded sounds for two hours, from 2:00 a.m. to 4:00

a.m.

He used a precision integrating sound level meter,

a calibrator, and a digital audio tape

recorder.

Initially, he mounted the sound level meter and tape recorder on a tripod and

calibrated the equipment.

He then positioned the equipment in the Cohens’ backyard,

15 feet

from the wooden fence.

After setting

up the equipment, Mr. Harmon left the site.

returned to collect the equipment after the recording was complete.

Tr.

at 325-327, 339-341,

343-346;

Comp.

Exh.

Because the recorder recorded the date and time on the tape, it would have been

apparent if the tape had been stopped or replaced.

Given the

15 foot distance from the sound

measuring equipment

to the fence,

the approximately

8 to

10 foot height of the berm on which

the fence sits,

and

the approximately 22

foot distance from the fence to the asphalt of the

facility’s west side, the sound measurements were made at least 25

feet from the Overland

noise sources.

At that measurement location, besides trucking terminal noise,

in all likelihood

only several types of sounds may occur at that time of the night and at that time of the year.

These extraneous sounds

may be caused by

an airplane flying over or a vehicle traveling

Northwest Highway.

Mr. Harmon accounted for any

sound reflection.

Tr.

at 327,

339-341,

343-346, 428-431;

Comp.

Exh.

After recording, Mr. Harmon analyzed the data frOm the tape using

a real time analyzer

in an acoustics laboratory.

This provided sound readings in decibels

at different

frequencies

(hertz).

Extraneous sounds,

such as noise from an airplane flying over,

were edited out of the

tape.

Mr. Harmon provided the resulting data to his colleague at Acoustic Associates, Ltd.,

Thomas Thunder,

for review.

Mr. Thunder also

listened to the tape.

They accounted for

ambient or background noise.

Mr. Harmon measured background noise between 2:15 a.m.

and

2:55

a.m. when the trucking terminal generated little

noise.

Mr. Harmon,

Mr. Thunder,

and Mr. Zak opined that the sound measurement procedures were in accordance with Board

regulations

and American National Standards

Institute (ANSI) protocols.

Tr.

at 328-330,

343-

345,

347-348,

357-359, 362-363, 380-381, 383-385,

392;

Comp.

Exh.

16.

13

Mr. Thunder

is an expert in sound measurement, sound control, and human response to

noise.

He has prior experience assessing and addressing noise from

trucking facilities.

Tr.

350-356, 379-381;

Comp.

Exh.

15.

Using the sound measurements of November 26,

1996,

Mr.

Thunder compared the trucking terminal noise,

which was averaged logarithmically from

3:00 a.m.

to 4:00 a.m., with the Board’s nighttime

numeric limits for sound emitted from

“Class C

land”

“Class A land.”5

Mr. Thunder also

compared this trucking terminal noise

and

the nighttime numeric

limits

when A-weighted.

Tr.

at 359-363;

Comp.

Exh.

16.

The trucking terminal noise exceeded the nighttime numeric limits at 1,000 and 2,000

hertz.

The Board’s limit at

1,000 hertz

is 41

decibels, while the trucking terminal emitted

sound at 43 decibels.

The Board’s limit at 2,000 hertz is

36 decibels,

while the facility emitted

sound at 39 decibels.

The A-weighted decibel level ofthe trucking terminal noise for this one

hour timeframe

(50

decibels)

was one A-weighted decibel below the nighttime numeric limits

when they are A-weighted

(51

decibels).

Comp.

Ex’h.

16, Fig.

In addition, Mr.

Harmon reviewed the tape from November 26,

1996,

another time for

impulsive sounds,

again producing data for Mr. Thunder’s review.

Mr. Thunder opined that

the sound measurement procedures were compliant with Board regulations and ANSI protocols

for impulse noise.

Tr.

at 330-331,

364-365.

Mr. Thunder identified three impulses.

The first impulse

occurred at 3:04:54 a.m.

and

reached 61

A-weighted decibels.

The second impulse occurred at

3:05:57

a.m.

and also

reached 61

A-weighted decibels.

The third impulse occurred at 3:06:31

a.m. and reached 64

A-weighted decibels.

In each instance, within a few seconds, the sound level went from below

50 decibels,

up to the 61

or 64 decibel level, then back down to below

50 decibels.

Tr.

365;

Comp.

Exh.

17.

Noise Reduction

Citizen Efforts

Complainants’ witnesses made phone calls to the trucking terminal when the facility

was

loud to request that Overland be

quieter.

These calls did not lead to

any

decrease

in noise.

Tr.

at 26,

73,

177-178;

Comp.

Exh.

Complainants’ witnesses also met with Overland officials in May 1996

and May 1997.

At the May

1996 meeting,

Overland and the homeowners

discussed building a fence and

cushioning the dock plates to try

to reduce noise levels.

At the latter meeting, the homeowners

suggested specific noise abatement measures,

including building a soundproof fence,

enclosing

the loading dock,

cushioning the dock plates,

replacing the yard spotter,

restricting hours of

operation,

and operating only

on the east side of the building

at night.

Despite Overland’s

~Land is

classified by

its use as specified in 35

Ill.

Adm.

Code 901.101.

The nighttime

numeric limits are defined in terms of different decibels

at different frequencies

(hertz).

See

35.111.

Adm.

Code 901.102(b).

14

statements that it would try to reduce the noise levels, the noise problems persisted.

Tr.

at 26-

31,

66,

98,

212-214.

Homeowners also contacted the Village of Palatine

and the police about the noise from

Overland.

These efforts

did not reduce the noise.

Tr.

at 27-28,

74-76, 77,

178,

214-215;

Comp.

Exh.

Abatement Measures

The parties introduced evidence on various measures

to abate noise from the trucking

terminal.

Airtight Barrier and Acoustically Absorptive

Material.

Airtight walls or barriers are

commonly used to control sound.

A properly constructed airtight, brick or wooden barrier at

least 18 to

feet high

and at least

inch thick around the northern, western,

and

southern

perimeter of the facility would be effective in reducing sound levels emitted

from the facility to

the Charter Hall homes.

Adding

acoustically absorptive material to the Overland side of the

western perimeter wall and to the west side of the facility building

would reduce noise by

reducing the echo effect between the two structures.

These measures are economically

reasonable and technically feasible.

Overland could have implemented

these measures several

years ago.

Tr.

at 373,

375-376, 403-404, 411-413.

Sound Containing

Enclosure.

Enclosures have been constructed around noise sources,

such as trucking dock areas,

reduce

sound levels.

A properly constructed enclosure around

Overland’s west side loading dock area would reduce sound levels emitted

from the facility to

the Charter Hall homes.

This measure is

economically reasonable and technically feasible.

Overland could have implemented this measure several years ago.

Tr.

at 373,

375-376, 404-

405,

408-409, 413.

Padding or Hydraulically Cushioning the Dock Plates

and Padding the Trailer Interiors.

Mr.

Thunder was unaware ofany of these measures having been implemented anywhere.

Mr.

Zak ruled out each of these measures.

When Overland placed carpeting

and rubber

under its

dock plates, those materials were

quickly

shredded or created a safety hazard for the forklift

operator.

The United

States Post Office also

failed when it attempted a similar solution for its

loading docks.

All of these measures would require high levels of maintenance

and have

questionable

effectiveness in reducing sound levels.

These measures are not technically

practicable.

Tr.

at 373-374, 376,

407-408, 413-414.

Cease Many ofthe Activities on

the West Side of the Facility.

Overland requires the

bays on the west side of its

loading dock during both its a.m.

and p.m.

shifts to

accommodate

the loading

and unloading of trailers.

It is

dark outside during

substantial portions of each of

the shifts.

It is

economically unreasonable to

prohibit the use of west side of the loading

dock

outside of daylight hours.

In addition,

trucks or the yard spotter may need to hitch trailers

involved in loading

or unloading on the west side of the facility.

Accordingly, it would not

practical to restrict all trailer hitching to the east side of the facility.

Tr.

at 497-498

Generally,

Overland maintains a counter-clockwise traffic flow of trucks

entering and

exiting the facility.

It does this for safety reasons.

Tr.

at 493-494, 503-504.

In light of this

and the finding above that the west side bays must remain available for Overland when it is

dark outside, it is

not technically practicable to prohibit trucks from entering and

leaving the

facility from its west side.

Overland parks most of its

trailers

on the west side of the facility.

Parked

trailers are

not involved

in loading or unloading.

Overland has room

on the east side of its

facility to park

additional trailers.

The bang

sound from hitching the trailers parked on the facility’s west side

to the trucks or yard

spotter is

a significant source of the facility’s

noise.

The dragging sound

that occurs when a trailer is

improperly

hitched is also troublesome for the residents.

Restricting the parking of trailers to

the east

side of the facility would

reduce impacts from

these noise sources.

This measure is economically reasonable and technically feasible.

Overland could have implemented this

measure several years ago.

Tr.

at 59-60, 83,

133-137,

414;

Comp.

Exh.

Comp. Grp. Exh.

1, Phot

Comp. Grp. Exh.

Phot

15,20,

23.

DISCUSSION

The complaint,

as amended,6 alleges

violations of (1) the Board’s nighttime numeric

sound limits and

(2) the nuisance noise prohibitions of the

Act and the Board’s regulations.

The Board discusses these provisions in turn.~

Numeric Violation

The Board first discusses the applicable numeric sound

limits, including

respondents’

argument that the trucking terminal comes within an exception to

the nighttime

sound limits.

Second,

the Board discusses the applicable

sound measurement procedures.

Finally,

the Board

determines whether complainants have established that respondents violated the applicable

numeric limits.

Numeric Sound Limits

The Board has numeric sound limits for daytime hours and for nighttime hours.

The

numeric limits for daytime hours are less

stringent than for nighttime hours.

See

35 Ill

Adm.

Code

901.102(a)

and (b).

The nighttime

numeric limits are set forth in Section 901.102(b),

which provides

as follows:

Except as elsewhere in this Part provided,

no person shall cause or allow

the emission of sound during

nighttime hours from

any property-line-

noise-source located on any

Class A,

or C

land to any

receiving

Class

A land which exceeds any

allowable octave band

sound pressure level

specified

in the following table,

when measured at any point within such

receiving

Class A land, provided, however,

that no

measurement of

On May

12,

1998,

the hearing officer granted the parties’ agreed motion to

amend the

complaint.

sound pressure levels shall be made less than 25 feet from such property-

line-noise-source.

Octave

Allowable Octave Band Sound Pressure Levels (dB) of Sound

Band

Emitted to any Receiving Class

A Land from

Center

Frequency

(Hertz)

Class

Land

Class

B Land

Class A Land

31.5

125

250

500

Ill.

Adm.

Code 901.102(b).7

Thus, this

section prohibits the emission of sound from one property to another above

certain decibel levels at certain frequencies (hertz).

The applicable

decibel limits are

determined by the type of land on which the noise

source is located.

This prohibition applies

only at night.

On November 26,

1996, from 3:00 a.m.

to 4:00 a.m., Mr.

Harmon measured sound

emissions from the trucking terminal.

He measured them from the Cohens’ backyard at

Charter Hall.

During this time,

Overland emitted

sound equal to 43

decibels

at 1,000

hertz

and

39 decibels at 2,000 hertz.

These exceed the Board’s nighttime limits of 41

decibels at

1,000 hertz and 36

decibels at 2,000 hertz for sound emissions from

Class

land to Class A

land.

These exceedences took place during

nighttime hours.

“Nighttime

hours” are defined

“10:00 p.m.

7:00 a.m., local time.”

Ill.

Adm.

Code 900.101.

Overland’s

trucking

terminal operation constitutes a property-line-noise-source.

A “property-line-noise-source”

defined as follows:

any equipment or facility, or combination thereof, which operates within any

land used as specified by

35 Iii.

Adm.

Code 901.101.

Such equipment or

~The abbreviation for decibel

“dB.”

See 35

Ill.

Adm.

Code

900.101.

facility, or combination thereof, must be capable of emitting

sound beyond the

property

line of the land on which operated.

35 Ill.

Adm.

Code 900.101.

Overland emitted sound beyond its property

line into the Cohens’ backyard at Charter

Hall.

The Charter Hall property

is residential and

thus Class

A land.

See 35 Ill.

Adm.

Code

901.101(a),

901 .Appendix B.

Overland’s

noise sources are located on Class

land.

The

facility has a SLUCM Code designation of 4221

for “motor freight terminals.”

This

is part of

the larger SLUCM Code 422,

categorized as

“motor freight transportation.”

See 35

Ill.

Adm.

Code 901 .Appendix B.

Under Section 901.101(c),

Class

C land includes SLUCM Code 422.

See.35

Ill.

Adm.

Code 901.101(c).

Overland argues that under the exception set

forth in Section

901.107(e), the daytime

limits,

not the nighttime limits,

apply to the trucking terminal during

nighttime hours.

That

section reads

as follows:

Section

901.102(b)

i.e.,

nighttime

limits

shall not apply to sound emitted

from

existing property-line-noise-sources during nighttime hours, provided, however,

that sound emitted

from such existing property-line-noise-sources shall be

governed during nighttime

hours by

the limits

specified in Section 901.102

i.e.,

daytime

limits.

35 Ill.

Adm.

Code 901.107(e).

An “existing property-line-noise-source”

is defined as follows:

any property-line-noise-source, the construction or establishment of which

commenced prior

to August

10,

1973.

For the purposes of this

sub-section, any

property-line-noise-source whose A,

or C

land use classification

changes, on

or after August

10,

1973,

shall not be considered an existing property-line-

noise-source.

35 Ill.

Adm.

Code 900.101.

Construction or establishment of the trucking terminal commenced before August

10,

1973.

However, the trucking terminal’s land use classification changed from “C”

“U”

when it was vacant for approximately

six to nine months in

1995,

between the operations of

Yellow

Freight and

Overland.

The

“U”

classification includes vacant nonresidential buildings.

Ill.

Adm.

Code 901.

Appendix B, n.

Because the trucking terminal’s land use

classification changed after August 10,

1973,

the facility does not fit within the definition of

existing property-line-noise-source.

Accordingly, respondents

cannot avail themselves of the

exception set forth

in Section 901.107(e)

and the facility is

subject to

the nighttime numeric

sound

limits.

Measurement Procedures

Section 901.102(b) requires that the sound measurements be taken at least 25

feet from

the property-line-noise-source.

Mr. Harmon’s measurements satisfy

this requirement.

The

property-line-noise-source is

the trucking terminal operation.

Mr. Harmon

set up his

measuring equipment

feet from the wooden fence separating Charter Hall and

the facility.

The fence is on top of an approximately

8 to

10 foot

tall berm.

The distance from the fence to

the asphalt of the trucking terminal is

approximately 22

feet.

Accordingly,

the measurements

‘were taken at least 25 feet from any of the Overland noise

sources.

The Board’s rules

specify additional procedural requirements for measurements taken to

determine compliance with

Section 901.102(b).

Section 900.103(b) provides as follows:

Procedures Applicable only

to 35

Ill.

Adm.

Code 901

All measurements and all measurement procedures to

determine whether

emissions of sound comply

with 35 Ill.

Adm.

Code

901

shall be in

substantial conformity

with ANSI §1.6-1967, ANSI §1.4-1971

Type I

Precision, ANSI §1.11-1966 and ANSI

§1.13-1971 Field Method,

and

shall, with the exception of measurements to determine whether

emissions of sound comply

with 35

Ill.

Adm.

Code 901.109,

be based

Leq averaging,

as defined in

Ill.

Adm.

Code 900. 101,

using a

reference time of one hour.

All

such measurements and measurements

procedures shall correct or provide for the correction of such emissions

for the presence of ambient noise as defined in

ANSI

1.13-1971.

35 Ill.

Adm.

Code 900. 103(b).

All three sound measurement experts, Mr. Harmon, Mr. Thunder,

and Mr. Zak,

testified that the sound measurement procedures complied with Board regulations

and ANSI

protocols.

The measurements were based

on Leq averaging using a

hour reference time and

were corrected for ambient or background noise.

Respondents alleged in their posthearing brief that Mr.

Harmon failed to comply with

certain measurement procedures under 35

Ill.

Adm.

Code 951.

The Agency promulgated the

Part

951

sound measurement procedures under Section 900.103(a).

Part 951

requires,

among

other things,

that the person taking

sound measurements be present while measurements are

being taken to look and

listen for extraneous sound sources and

varying wind conditions that

may affect the data.

See 35 Ill.

Adm.

Code

951.105(c)(7).

Mr. Harmon left the site while the

measurements were being taken.

Accordingly, he

did not comply with this provision of Part

951.

Determination of Violation

Complainants established that sound emissions from the trucking terminal into the

Cohens’ backyard exceeded applicable nighttime numeric sound

limits on November 26,

1996.

However,

when these recordings were made,

Mr. Harmon left the site, thereby failing to

comply with one of the Part 951

measurement procedures.

In cases alleging violation ofthe numeric sound limits, the Board requires strict

adherence to applicable measurement procedures, including the requirements of Part 951.

See

Discovery

South Group.

Ltd.

Pollution Control Board,

275 Ill. App.

3d.

547,

559,

656

N.E.2d 51,

59 (1st Dist.

1995) (“Strict adherence to

sections 901.102 and 900.103 is only

necessary when proving a violation ofthe Board’s numeric standards.”); Manarchy

JJJ

Associates, Inc.

(July

18,

1996), PCB 95-73,

slip

op.

(in discussing an alleged numeric

violation, the Board stated that it “strictly adheres to the requirements listed in Part 951

...

Given the noncompliance with Section

951.1

05(c)(7),

the Board finds that complainants failed to

establish a violation of the Board’s numeric sound limits.

Nuisance Violation

The Board first discusses the applicable law regarding nuisance noise.

Second, the

Board determines whether noise from

the trucking terminal has interfered with the residents’

enjoyment of life.

Third, the Board determines whether any

such interference

was

unreasonable.

Finally,

the Board determines whether respondents have violated the

prohibitions

on nuisance noise.

Applicable Law

Complainants allege that respondents have violated Section 24 ofthe Act and 35

Ill.

Adm.

Code

900.102.

Section 24 provides that no person shall:

emit beyond the boundaries of his property

any noise that unreasonably

interferes with the enjoyment of life or with any

lawful business or activity,

as to violate any regulation or standard adopted by the Board under this Act.

415

ILCS

5/24

(1996).

Section 900.102

of the Board’s regulations

states in relevant part that no person shall cause or

allow the emission of sound beyond

the boundaries of his

property

“so as to

cause noise

pollution in Illinois

.“

35 Ill.

Adm.

Code 900.102.

“Noise pollution”

is defined as “the

emission of sound that unreasonably interferes with the enjoyment of life or with any

lawful

business or activity.”

35 Ill.

Adm.

Code 900.101.

These provisions

constitute a prohibition against “nuisance noise.”

Zivoli v.

Prospect

Dive and

Sport Shop,

Ltd.

(March

14,

1991),

PCB 89-205, slip op.

at,

The Board

considers

Section 33(c) of the Act to determine if noise rises to the level of a nuisance,

i.e.,

the

unreasonable interference with the enjoyment of.life.

See

Hoffman v.

City of Columbia

(October

17,

1996),

PCB 94-146, slip op.

Section 33(c) reads

as follows:

In making its

orders and determinations,

the Board shall take into consideration

all the facts and circumstances bearing upon the reasonableness of the emissions,

discharges, or deposits involved

including, but not limited to:

the character and degree of injury to, or interference with the protection

of the health,

general

welfare and physical property of the people;

the social and economic value of the pollution

source;

the suitability or unsuitability ofthe pollution source

to the area in which it

located, including

the question of priority of location in the area involved;

the technical practicability

and economic reasonableness of reducing or

eliminating the emissions,

discharges or deposits resulting from such

pollution source;

and

any

subsequent compliance.

415

ILCS

5/33(c)

(1996).

Interference with Enjoyment of Life

Respondents do

not dispute that trucking terminal operations have generated noises that

complainants’ witnesses have heard at their residences.

The question remains whether the

noises

interfered with the residents’ enjoyment of life.

“If there is no

interference,

‘nuisance noise’

violation is possible.”

Zivoli,

PCB 89-205,

slip op.

at 9.

Accordingly,

threshold

issue

in any nuisance noise enforcement proceeding

is whether the sounds have

caused an interference

with the enjoyment of life.

See Furlan v.

University of Illinois

School

of Medicine

(October

1996), PCB 93-15, slip op.

at 4.

Sounds from a source must

objectively affect enjoyment of life to constitute

an interference.

See Hoffman,

PCB 94-146,

slip op.

16;

Zivoli,

PCB 89-205, slip

op.

at 9.

The Board fmds that noise from Overland’s

facility has interfered with the residents’

enjoyment of life.

The noise has disrupted their sleep and

restricted their ability to use their

patios or backyards.

It requires them to close their windows

and disrupts television watching

and

normal conversations.

It also

limits the residents’

ability to entertain guests.

The Boar4

has held that

such disruptions from noise

constitute an interference with the enjoyment of life.

See Manarchy, PCB 95-73, slip

op.

(sleeplessness from

nightclub noise is

interference);

Hoffman,

PCB 94-146, slip

op.

5-6,

(noise

interfering with sleep and use of yard);

Thomas

Carry

Companies

of Illinois

(August

1993),

PCB 91-195,

slip

op.

13-15

(trucking operation noise

impacts sleeping,

watching television, and

conversing).

Unreasonable Interference with Enjoyment of Life

The remaining

issue is whether noise

from the trucking terminal has unreasonably

interfered with the residents’ enjoyment of life.

Whether an interference

is unreasonable is

detennined by reference to the criteria set forth in Section 33(c) of the Act; however,

complainants are not obligated to introduce evidence on each of the Section 33(c)

factors.

addition,

the Board need not find

against respondents on each factor to find a violation.

See

Wells Manufacturing Company v.

Pollution Control Board,

73 Ill. 2d 226,

233,

383

N.E.2d

148,

151

(1978);

Processing and Books,

Inc.

Pollution Control Board, 64

Ill. 2d

68,

75-77,

351

N.E.2d 865,

869 (1976);

Incinerator, Inc.

Pollution Control Board,

59 Ill.

2d 290, 296,

319 N.E.2d 794,

797

(1974).

The Board now considers each of the Section 33(c)

factors.

The Character and Degree of Injury to, or Interference with the Protection of the

Health,

General Welfare and Physical Property of the People.

In assessing the character and

degree of interference that the trucking terminal noise

caused, the standard applied by the

Board

is whether the noise

“substantially and frequently

interferes” with the enjoyment of life,

“beyond minor or trifling

annoyance or discomfort.”

Kvatsak v.

St.

Michael’s Lutheran

Church

(August 30,

1990), PCB 89-182,

slip

op.

at 9.

Testimony and Noise LoRs.

The noise from Overland has interfered with the lives of

many residents.

The disturbances occur almost every day and throughout Overland’s a.m. and

p.m shifts,

which run late

into the night and start early in the morning.

The trucking terminal

noise has disrupted the residents’ sleep and

limited normal activities

in and around their

homes.

The disruptions

are severe and have been going

on repeatedly since Overland’s arrival

in November

1995.

Sound Measurements.

Both citizen and expert measurements of the trucking terminal

sound levels corroborate the residents’ testimony and noise logs

on the character and degree of

the interference.

Citizen Measurements.

Mr. Bergau and Mrs.

Cohen need not

have followed

all Board

sound measurement requirements when they measured the Overland facility’s sound levels.

When sound level measurements are entered into evidence not to

prove or disprove a numeric

violation, but to substantiate or refute a nuisance noise claim, measurement procedures need

not meet all Board requirements that apply in

a case alleging a numeric

violation.

See

Discovery

South Group,

275 Ill.

App.

3d.

559, 656

N.E.2d at 59;

Scartino v.

Henry Pratt

Company (April

1997),

PCB 96-110, slip

op.

14;

Schrantz v.

Village of Villa Park

(December

14,

1994), PCB 93-161, slip.

op.

13.

However, the measurement procedures

used still must be technically justified.

Cf.

Hoffman,

PCB 94-146,

slip

op.

at 6-7,

16 (in-

window measurements accepted as evidence regarding alleged nuisance violation);

Dettlaff v.

Boado

(July

1993), PCB 92-26, slip

op.

at 7-9 (measurements not taken in compliance with

Board regulations accepted as evidence regarding alleged nuisance noise).

Three sound measurement experts opined that Mrs.

Cohen’s measurement procedures

would produce reasonably accurate measurements of sound generated

by the trucking terminal.

The Board has relied

on in-window measurements

in nuisance noise cases.

See

Scarpino, PCB

96-110, slip

op.

14;

Hoffman,

PCB 94-146, slip op.

at 6-7,

16.

The Board finds that Mrs.

Cohen’s procedures were adequate for this case and that her measurements of the trucking

terminal noise were reasonably accurate.

Mrs.

Cohen measured sound from the trucking terminal in A-weighted decibels.

A-

weighting measurements attempt

to compensate for the fact that generally a

sound with a given

decibel

level

at a higher frequency seems

louder to the human ear than a sound with the same

decibel

level

at a lower frequency.

See Noise Pollution Control Regulations

(July 31,

1973),

R72-2,

slip op.

at 10-11.

For a given sound measurement, decibels are either subtracted or

added at various

frequencies using

a scale,

then the weighted values for each frequency

“are

combined to give a single A weighted decibel level for the sound.”

Id.

11.

The Board did not develop A-weighted levels for the Section

901.102 daytime and

nighttime numeric sound limits in part because

“the characteristics of all possible

noise sources

are

so varied that the correlation between A weighted sound levels and subjective reaction

does not always

hold true.”

Id.

26.

Nevertheless, the Board acknowledged that A-weighted

measurements “may be helpful in assessing,

a preliminary basis,

a potential noise

problem.”

Id.

Accordingly, the Board fmds

the A-weighted sound levels relevant in this case.

See Scarpino, PCB 96-110, slip

op.

16-17;

Dettlaff,

PCB 92-26,

slip op.

at 9.

For over 20 months,

Mrs.

Cohen took numerous

measurements of the trucking terminal

noise.

Most of her measurements fall between 52 and 74 A-weighted decibels and

many of

those

measurements were taken during

nighttime hours

(i.e.,

between 10:00 p.m.

and 7

a.m.).

For sound emitted from Class

land to Class

A land, the Board’s nighttime numeric

sound

limits,

which are expressed as different decibel limits

at different frequencies,

equal 51

decibels

when they are A-weighted.

Accordingly, many of Mrs.

Cohen’s nighttime

measurements exceeded the Board’s nighttime numeric

sound limits

when those limits are A-

weighted.

A number of Mrs.

Cohen’s measurements showed changes

in sound levels from the

facility of 8 to

A-weighted decibels

over

10 to

second intervals.

Mr. Zak and Mr.

Thunder opined that these sound level

changes would

interfere with sleep and normal activities

in and around the home.

However, the Board gives no

weight to Mr.

Bergau’s measurements for several

reasons.

For example,

he could not remember how he recorded the measurements on his data

sheets.

There is

nothing in the record on whether Mr.

Bergau set his

sound level

meter on A

or C weighting.

Moreover,

complainants’ experts provided

no opinion on whether Mr.

Bergau

followed proper procedures for sound measurements.

Expert Measurements.

Despite the noncompliance with one of the Part 951

measurement procedures (discussed above at pages

18-19), the Board finds

Mr. Harmon’s

measurements reasonably reliable for several reasons.

In all likelihood,

there were

only

several types of extraneous sounds that may occur at that time of year in the middle of the

night in that

backyard.

Mr. Harmon and Mr. Thunder, both of whom have experience with

trucking operation noises,

listened to the tape.

Extraneous sounds were

edited out of the tape.

The tape would have revealed if it had been stopped or replaced.

Moreover, all three sound

experts opined that the measurement procedures complied with Board regulations

and ANSI

protocols.

The record demonstrates

noncompliance with only one provision of Part 951.

Accordingly, while the measurements cannot be used to establish a numeric noise violation, the

Board

will consider the measurements in assessing the alleged nuisance noise violation.8

The exceedences of the Section 901.102(b) nighttime limits that Mr. Harmon recorded

November 26,

1996,

as discussed above, bear upon the character and degree of the

interference.

The nighttime limits

were designed

“to offer greater protection during sleeping

hours

.“

Noise Pollution Control Regulations, R 72-2, slip

op.

21.

In addition,

Mr.

Harmon’s recording revealed three impulses occurring shortly after

3:00 a.m.

While the A-weighted level of the full one hour (3:00 a.m. to 4:00 a.m.) recording

was

50 A-weighted decibels,

two of the impulses reached 61

A-weighted decibels,

and the

third impulse reached 64

A-weighted decibels.

The Board’s noise regulations

have A-weighted

numeric limits for impulsive sounds

(sound pressure peak or peaks usually

less

than one

second in duration,

such as from a drop forge hammer or explosive blasting).

See

35 Ill.

Adm.

Code

900.101

(definition) and

901.104

(limits).

The Board noted in its

original noise

control rulemaking that impulsive sounds

were not easily measured in the field at the various

frequencies.

However, the Board found that their levels, measured in A-weighted decibels,

did appear to correlate sufficiently well for all

types of impulsive

sound emitters so that

the

frequencies were not required.

See Noise Pollution Control Regulations,

R72-2,

slip

op.

18.

Each of the three impulses that Mr. Harmon recorded exceeded 46 A-weighted decibels,

which

is the nighttime

limit for impulsive

sound emitted

from Class

land to Class

land.9

See

Ill.

Adm.

Code 901.104.

Finding

this Factor.

The Board finds that the character and

degree of interference

from the trucking terminal noise has been substantial and frequent, and weighs this Section

33(c) factor against respondents.

The Social

and Economic Value of the Pollution Source.

In assessing this factor, the

Illinois Supreme Court has looked to the number of persons that the defendant employed and

whether the defendant is

an important supplier to

a particular market.

See

Wells

Manufacturing,

Ill.

at 235-236,

383 N.E.2d at

152.

Similarly, the Board has looked to

such factors as the number of employees

at a facility and the total

wages and taxes that a

respondent paid.

See Peter Arendovich v.

Koppers Company (February 8,

1990), PCB 88-

127,

slip

op.

at 6.

The Board will similarly consider the impulsive sounds that Mr.

Harmon recorded.

~Complainants

did not

allege that respondents

violated the impulsive

sound limits of Section

901.104.

Accordingly, the Board considers

these exceedences only

as corroborating evidence

ofnuisance noise.

Overland employs 41

people at the facility.

In 1997,

Overland’s

payroll was just over

one million dollars and

it paid approximately $102,000 in taxes.

Its customers include a

distributor of medical supplies.

The Board finds

that the facility has social and economic value

and weighs this

Section 33(c) factor in favor of Overland.

The Suitability or Unsuitability of the Pollution Source

to the Area,

including Priority

ofLocation.

The Board recognizes

that the trucking terminal has priority of location.

It was

constructed in

1972,

while Charter Hall was not constructed until

199 1-1992.

In addition,

the

residents were aware of the trucking terminal before buying their homes.

Nevertheless,

priority of location is only

one

aspect of suitability

and

it is not

necessarily

determinative of the Board’s finding under this Section

33(c) factor.

See

Oltman v.

Cowan (November 21,

1996),

PCB 96-185,

slip op.

Moreover,

the Illinois

Supreme

Court noted that:

industry

cannot, of course,

substantially increase its

emissions

and

simultaneously rely on its priority of location in the area as a mitigating factor.

This

sort of changed circumstance would.

undermine the industry’s priority-

of-location argument.

Wells Manufacturing,

73 Ill.

at 237,

383 N.E.2d at

152.

When Yellow Freight operated

the trucking terminal, the noise it generated either did

not disturb

the residents or disturbed them much

less frequently.

Noise problems began for

most of complainants’ witnesses when Overland took over the trucking terminal.

Overland

uses more trucks than Yellow

Freight did and

Overland’s

noises occur more frequently.

The Board finds that the residents were on notice that

their proximity to the trucking

terminal may present some

annoyances.

Nevertheless, the annoyances here have been

substantial and

have resulted from the intensified operations under Overland.

Moreover,

Charter Hall and many of the residents preceded the arrival of Overland to this

area.

The

Board finds that the trucking terminal, as Overland has operated it,

is unsuitable to the area

and

weighs this factor against Overland.

The Technical Practicability and Economic Reasonableness of Reducing or Eliminating

the Emissions

Resulting from the Pollution Source.

In considering this

factor, the Board must

determine whether technically practicable and

economically reasonable means of reducing or

eliminating noise

emissions from the trucking terminal were readily available to

respondents.

See Incinerator, Inc.,

59 Ill.

2d at

298,

319

N.E.2d at 798;

Sangamo

Construction Company

Pollution Control Board,

27 Ill.

App.

3d 949,

954-955,

328 N.E.2d 571,

575

(4th Dist.

1975);

Scarpino, PCB 96-110, slip op.

at 20.

Several technically practicable and

economically reasonable

measures were

readily

available

to reduce Overland’s

noise

emissions.

Overland failed to

implement these measures,

which

include constructing

an airtight perimeter barrier, using acoustically

absorptive materials

on walls,

enclosing the west side loading dock area, and parking trailers on

the east side of the

facility.

Overland could have implemented these measures several years

ago.

The Board

weighs this

factor against Overland.

Any Subseiuent Compliance.

Under this factor, the Board must determine whether

Overland has subsequently come into compliance with the requirements allegedly violated.

See

Manarchy, PCB

95-73,

slip

op.

13.

The noise

problem was continuing

as of the time of the

hearing.

The Board weighs this

factor against Overland.

Determination of Violation

While

the trucking terminal has social and

economic value,

its

noise has caused

substantial

and frequent interference and

not merely petty

annoyance.

Several technically

practicable and

economically reasonable measures were readily available

to minimize

Overland’s

noise emissions.

Overland has failed to

implement these measures and the noise

problems were continuing

as of the time of the hearing in this

matter.

After considering the record in light of the Section 33(c) factors, the Board finds that

respondents

have emitted noise

from the trucking terminal so as to unreasonably

interfere with

the residents’ enjoyment of life.

This unreasonable interference constitutes noise pollution in

violation of Section 24 of the Act and

Section 900.102 of the Board’s regulations.

CONCLUSION

The Board finds that complainants failed to

establish that noise from respondents’

facility violated the Board’s nighttime numeric sound

limits.

However, the Board does find

that noise

from the trucking terminal has unreasonably interfered with the residents’ enjoyment

of life in violation of Section 24 of the Act and 35

Ill.

Adm.

Code 900.102.

To address

appropriate remedies,

including civil penalties, the Board orders this matter to hearing on an

expedited basis,

consistent with the Board’s resources.

This opinion constitutes

the Board’s findings of fact and conclusions of law

in this

matter.

ORDER

The Board

finds that complainants failed

to establish that respondents violated

the Board’s nighttime

numeric sound limits of 35 Ill.

Adm.

Code 901.102(b).

The Board

finds that respondents have 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.

The Board

orders this matter to hearing on an expedited basis,

consistent with

the Board’s resources,

address appropriate remedies,

including civil penalties.

IT IS SO

ORDERED.

I, Dorothy M. Gunn,

Clerk of the Illinois

Pollution Control Board, hereby certify

that

the above interim opinion and order

was adopted on the

1st day of October

1998 by

a vote of

7-0.

Dorothy M.

Gunn, Clerk

Illinois

Pollution Control Board