RECEIVED
CLERK’S OFFICE
ILLINOIS POLLUTION CONTROL BOARD
NOV 122004
BONITA SAXBURY and
)
Pollution
STATE OFControlILLINOIS
Board
RICHARD
SAXBURY,
)
)
Complainants,
)
)
v.
)
PCB04-79
)
(Citizens Enforcement-Noise)
ARCHER DANIELS MIDLAND
)
COMPANY, HULL, ILLINOIS
)
DIVISION,
)
)
Respondent.
)
NOTICE OF FILING
PLEASE TAKE NOTICE
that I have today filed with the Office ofthe Clerk ofthe
Pollution Control Board a Post-Hearing Brief ofArcher Daniels Midland Company, a
copy ofwhich is herewith served upon you.
November 10, 2004
Archer Daniels Midland Company
BY:L
~
Corporate Environmental Counsel
Archer Daniels Midland Company
4666
Faries Parkway
Decatur, IL 62526
(217)451-4883
#31 lOlviA
~7
~~ ~
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
BONITA SAXBURY and RICHARD
)
NOV 122004
ci~t~,rnm~r
STATE OF ILLINOIS
Pollution Control Board
Complainants,.
)
PCB 04-79
)
(Citizens Enforcement
—
Noise)
v.
)
)
ARCHER DANIELS MIDLAND, HULL,
)
ILLINOIS DIVISION,
)
)
Respondent.
)
POST-HEARING BRIEF OF ARCHER
DANIELS
MIDLAND
COMPANY
Bonita Saxbury is extremely bothered by the sound from fans used at the Archer Daniels
Midland Company (ADM) elevator in Hull, Illinois. She is bothered to the extent that she
feels she must leave her home to get away from it. That conclusion seems inescapable.
She testified to that (R.
51),
and she has spent a lot oftime and effort trying to stop it. It is
difficult to think of any reason she would have for doing that if it were not true.
Unfortunately, it is just as hard for ADM to understand why the sound bothers her as
much as it does, and why she feels that ADM is treating her as “a little bug that needed to
be squashed.” (Brief at p. 2).
The hearing in this matter and the Saxburys’ brief are much less formal than in a typical
Board proceeding, largely because, as the Saxbury’s point out, while Bonnie is
representing them, she is not an attorney and is not familiar with the Board proceedings
and procedures. And that’s fine. The Illinois Environmental Protection Act authorizes
citizen suits and allows complainants to represent themselves so that theymaybe heard.
Further, the Board has a long history ofallowing considerable latitude to the participants
in such proceedings. Given the case status, ADM believes a somewhat less formal
response is appropriate on its behalf as well.
By way ofbackground, ADM uses the Hull elevator for long-term grain storage (R. 63).
Generally, wheat is brought in during the summer and soybeans in the fall (Id.). To keep
the grain “in condition” the temperature ofthe grain in the elevator must be kept close to
the outside temperature (Ia.). When the temperature difference gets too large, the aeration
fans are used to reduce that difference (id.).
The Saxburys moved into their residence across the street from the elevator in 1958 (R.
13) when Bonnie would have been about 16 years old. (See, R. 47). The elevator had
already been built by that time (R.
52).
In the 1 980s there were several other structures on
the site, including a grain dryer that was sometimes run around the clock (R.
52).
When
the grain dryer was running, the sounds from the facility were much louder than they are
now (14.). Bonnie was apparently living in Arizona at that time (R. 48), but Richard was
still living there.
ADM purchased the Hull elevator in 1998 (R. 61). In that year, there were two portable
top fans to draw offthe moisture and three bottom fans (one fixed and two portable) used
for aeration (R.61). Mrs. Saxbury’s complaint in the fall of2000 was the first time ADM
received any complaint about noise from the elevator, and no one else has ever
complained since that time, except for Richard Saxbury through the filing ofthe formal
complaint in this matter (R. 62).
Contrary to Mrs. Saxbury’s perception, ADM did not ignore the initial complaint.
Appropriate ADM personnel visited the elevator, identified the fans as the most
noticeable source ofsound and decided on a policy oflimiting fan usage to the hours of
8:00 a.m. to 5:00 p.m. as ofOctober or November 2000 (R. 62). ADM also decided to
modifythe stationary fan which appeared to be the most significant source ofsound. At a
cost ofapproximately $100 in materials, ADM insulated the intake (R. 63). While the
insulation helped some, ADM decided to remove that fan in 2002 which required
modifications to the bin it served such that a quieter, portable fan could be hooked up to it
as needed (R.
64-65).
ADM next built enclosures around the two portable bottom fans, insulated them and
baffled the air intakes at a cost ofapproximately $650 plus labor (R.
65-66).
In addition,
ADM replaced the 3450 RPM motors in the top portable fans with 1750 RPM motors at a
cost of$550 to $600 plus labor (14.). The modification ofthe top fans made the sound
from those fans virtually unnoticeable at the road between the elevator and the Saxbury
home (R. 66). Finally, ADM lengthened the air ducts to some ofthe bins so that it could
limit the placement ofthe portable fan to either oftwo positions for serving the bins
closest to the street at a cost of approximately $1,500 plus labor (R. 66-67). The two
positions were selected on the basis ofminimizing the amount ofsound reaching the
neighbors by using the bins as barriers (R. 67-68). In one ofthe positions (which she
refers to as being behind the office), Mrs. Saxbury stated she could only hear it when it
was being turned on or off (R. 49). In the other position the noise is reduced, but not as
dramatically (R. 68). All ofthese actions were taken despite the fact that ADM did not
believe the sounds from the elevator constituted a nuisance even before these
improvements were made.
In summary, ADM has limited the hours offan usage to normal weekday business hours.
It has eliminated the fan which produced the most sound. It has virtually eliminated any
sound from the top fans. It has greatly reduced the sound from the now-insulated and
baffled portable fan in one ofthe positions in which it is currently used to the extent that
Mrs. Saxbury can only hear it when it is turned on and off. When placed in the other
position, the sound produced has been reduced through insulation and baffling and by its
placement behind one ofthe bins (with respect to the Saxbury home).
Yet, none ofthis has satisfied Mrs. Saxbury. In fact, Bonnie finds this so unacceptable,
she asks the Board to order the facility to cease operation and pay a one-time penalty of
$50,000 plus $10,000 per day retroactive to the year 2000, thereby resulting in a total
penalty ofbetween $14 and $18 million dollars (depending on when in 2000 the penalty
would be retroactive to). That would, ofcourse, be by far the largest penalty ever
imposed by the Board.
In making a determination ofwhether a noise nuisance exists, the Board proceeds with a
two-step analysis. First, it determines whetherthe sound interferes with the enjoyment of
life or any lawful business or activity. Zivoli v. Prospect Drive & Sport Shop. Ltd.
(March 14, 1991), PCB
89-205,
slip op. at 9. Ifthe Board concludes that there is an
interference, it next looks to whether the interference is unreasonable based on the factors
set forth in Section 33(c) ofthe Act (415 ILCS
5/33(c)(1998)).
Scarpino v. Henry Pratt
~
(April 3, 1997), PCB 96-110, slip op. at
15.
The only persons alleging any interference in their lives due to sounds from the elevator
are the Saxbury’s, and it is probably fair to infer that the only person truly feeling that
way is Bonita Saxbury. Richardjoined in the filing ofthe complaint, and at hearing he
was certainly supportive of his sister. However, except forhaving signed the Complaint,
he has never complained to ADM about the sounds from the elevator. There is no
indication in the record that he ever left the house due to the noise except with his sister.
Further, he does not hear very well and wears a hearing aid (R.13 and 18).
The sounds from the fan do bother Bonnie greatly and have affected her life, but there is
a real question whether their impact on her bears any significant relationship to the sound
volume. She does not, for example, appear to believe that the fans can only be on or off
due to the sound varying from “fairly low” to “unbearable” despite the clear testimony
that there are no other controls on the fans (Brief at p. 1 and R. 36). There is even reason
to believe that on Christmas Eve of2003 she may have found the sounds from the fan
unbearable when the fan was not even running (Brief at p. 1 and R. 38 and 81-82).
Bonnie stated that “when you hear the noise, it makes you
—
after a while it goes on so
long, it makes you very nervous.., if you listen to it long enough, you~mightjust really go
over the edge” (R. 47). That may help explain how she could saythat the actions ADM
has taken have not reduced the sound levels immediately before acknowledging that now
the top fans are “not the problem” and that when the portable fan is behind the office, “it
doesn’t bother” her (R. 49).
Sound does not rise to the level ofinterference if it is merely a source ofaggravation.
Kochanski v. Hinsdale GolfClub (July 13, 1989), PCB 88-16, slip op. at 14. The initial
question for the Board to answer, therefore, is whether Mrs. Saxbury’s reaction to the
elevator sounds is due to an “aggravation” that has gotten out of hand, or whether the
sound truly constitutes an interference. However, even if the Board should conclude that
there is an interference with the enjoyment of life, based on the factsof this case, the
Board must conclude that such interference is not unreasonable based on an analysis of
the Section 33(c) factors.
First, the character and degree ofinjury is minor. The fans are rarely used outside ofthe
hours of 8:00 a.m. to 5:00 p.m. on weekdays. During much ofthe year, the fans are used
little, if at all, since they are not needed. Significant usage ofthe fans is generally limited
to July through November, and the amount ofusage is generally a couple ofdays a week
in the summer and early fall months and increases to as much as 4 or
5
days a week as
winter arrives (R.76-77). Further, on the days they are operated, the fans are often not
used during the entire working day (14.).
ADM also notes that only the Saxburys have complained of any interference with their
enjoyment oflife, despite the fact that four other homes are about as close as or closer to
the facility than the Saxburys (R. 70), and the residents ofeach ofthose homes have filed
public comments with the Board stating they are not bothered by the sounds from the
elevator. (See, Public Comments 1-4 filed with the Board on November 1, 2004.) Those
public comments include both letters and affidavits stating that the sounds from the
elevator have never bothered them.
As the Board stated in Sweda v. Outboard Marine Corporation and the CityofWaukegan
(August
5,
1999), PCB 99-38, slip op. at p. 12:
The fact that not everyone in the vicinity ofa noise source is bothered by that
noise will not
zpsofacto
prevent a finding ofnoise pollution. (Citation omitted.)
There comes a point, however, at which the evidence establishes that, whatever
the complainant’s subjective experience, there is no unreasonable interference
when the noise source is viewed objectively. We conclude that this point has been
reached in this case. Because the evidence indicates that most people in the
affected area are not significantly bothered by the
...
noise, the Board concludes
that this factor supports a finding that the interference experienced is not
unreasonable.
The Board should reach the same conclusion here where the Saxburys are the
only
ones
complaining.
Second, both parties agree the elevator has significant social and economic value, and
that the fans are a necessary part ofthe elevator’s operation (R.
75).
The elevator
employs one full-time employee and two or three temporary employees from the town of
250 people (R. 70-71). It pays property taxes ofapproximately $20,000 per year and
serves the farmers within.a 20 to 25 mile radius (R. 71 )~
It brings business to the local
service station and restaurant, and it supplies 750,000 to one million bushels ofgrain to
the ADM processing system annually (14.). The Colgroves stated that the elevator is “an
asset to the livelihood ofour town and the surrounding community” (PC4). Ms. Cox
stated that the elevators presence “is not only approved by the vast majority ofthe
residents, but very much appreciated” (PC3). Thus, this factor also supports a finding that
any interference experienced is not unreasonable.
Third, the elevator is suitable to the area in which it is located and has priority of
location. It was built in the early 1950s on a no longer existing rail spur on the southwest
side oftown in an agricultural area ofIllinois (R.6 1). The Saxburys moved into their
current residence in 1958, and as far as Bonnie can recall, the elevator was always there
(R. 13 and 52). While there is some conflicting testimony regarding how the intensity of
the sound from the facility may have varied over the years, based on the nature of the
operations and equipment at the facility, it is reasonable to conclude, as Mr. Dimmit
testified, that the sounds were much louder in the 1980s than they are now (R. 60). The
Colgroves, Wards, Ms. Cox and Mr. Gill all stated that the sounds from the elevator now
are either less noticeable or no more noticeable than when the moved in (see PC 1-4).
Certainly, there is no evidence that anyone other than the Saxburys believes the elevator
is unsuitably located.
The Board should also conclude, again despite some contrary testimony from the
Saxburys, that the efforts ADM has made to minimize the sound from the facility have
been effective, and that the present impact of the sound is much less than it was when
Bonnie first complained to ADM. Even Richard testifiedthat he “would trade this noise,
the present noise, for the one we did have” before Bonnie’s initial complaint (R. at 8 and
18). The Board should conclude that this factor also supports a finding that any
interference is not unreasonable.
Fourth, it is not economicallyreasonable to reduce the sound emission further. There is
no evidence in the record ofany means ofdoing so. On the contrary, neither Mrs.
Saxbury nor Mr. Dimmitt is aware ofany such means (R. 52 and 70). The sound the
Saxburys hear is not from the fan itself, but rather results from the movement of air
through ducting from the fans to and through the bins (R. 78). The ducting must go to
each ofthe bins on the elevatorproperty which would make it very difficult and
expensive to attempt to block while being able to move freely around the property;
Again, the Board should conclude that this factor supports a finding that any interference
is not unreasonable.
The fifth factor under Section 33(c) is subsequent compliance. However, since ADM
believes that the elevator has always been in compliance during ADM’s ownership,
ADM will instead discuss its improved compliance. ADM has set forth, above, the
various actions it has taken since Mrs. Saxbury first complained about the noise from the
elevator. ADM has spent at least $2,800 in materials for these improvements. While the
labor was performed by ADM such that it cannot attribute specific labor costs, a
reasonable rule-of-thumb is that labor costs double overall project costs. Therefore, ADM
has actually spent approximately $5,600 and placed self-imposed restrictions on its
operating hours to reduce the impact ofthe sound on its neighbors despite the fact that it
believes the facility has always been in compliance. It undertook these actions simply
because the sound bothered Mrs. Saxbury. Based on the actions ADM has taken to reduce
the sound levels, the Board should conclude that this factor supports a finding that any
interference is not unreasonable.
The Saxburys believe that ADM’s efforts to reduce the sound levels prove a noise
nuisance. The Saxburys ask: “If there was truly no problem, why would you ADM
spend money to fix something that doesn’t exist?” (Brief at p. 1). Bonnie refuses to
believe it could be an attempt to be a good neighbor because “ADM is... trying to make
money” (R.
50).
Well, ADM is trying to make money, but ADM has found that being a
good neighbor helps it make money because there is more value to spending money on
improvements to its facilities than there is on spending money to fight its neighbors. In
this case, unfortunately, despite all ofADM’s efforts, Bonnie believes that the sounds
from the elevator are ‘lust as loud and obnoxious” as before the improvements were
made (Brief at P. 1), leaving ADM no option other than proceeding to a Board decision.
It is now nearing the time for the Board to render its decision. ADM believes the Board
could, on the basis ofthis record, find that there is no interference. Even if it does not,
however, the Board should find that any interference was reasonable since each ofthe
Section 33(c) factors supports such a finding.
However, ADM notes that ajoint motion for a site visit remains pending before the
Board. By Order dated October 7, 2004, the Board reserved ruling on that motion “until
after the record has been fully developed at hearing.” That has now occurred, and ADM
renews its request due to its concern that ifthe Board were to find that no nuisance exists
on the basis ofthe present record, the Saxburys may well feel that the result was due to
their inability to retain a lawyer and a noise consultant to present their case fully rather
than the fact that no nuisance actually exists. If, however, the Board were to visit the site,
the Saxburys would know that there case had been heard.
WHEREFORE, Archer Daniels Midland Company respectfully renews its request for a
site visit and further requests that the Board find that no noise pollution violation has
occurred.
Archer Daniels Midland Company
J
1
BY.____________
Corporate Environmental Counsel
Archer Daniels Midland Company
4666 Faries Parkway
Decatur, IL 62526
(217)451-4883
#32203
BONITA SAXBURY and
RICHARD
SAXBURY,
V.
Complainants,
ARCHER DANIELS MIDLAND
COMPANY, HULL, ILLINOIS
DIVISION,
Respondent.
CLERK’S OFFIi~
CERTIFICATE OF SERVICE
I, the undersigned, certify that I have served the attached Post-Hearing Brief ofArcher
Daniels Midland Company, by United States Mail, upon the following persons:
Bonita and Richard Saxbury
P.O. #3
260 W. Miller
Hull, IL 62343
Dorothy M. Gunn
Illinois Pollution Control Board
James R. Thompson Center
100 W. Randolph Street
Suite 11-500
Chicago, IL 60601
November 10, 2004
Carol Sudman
Hearing Officer
Illinois Pollution Control Board
600 5. Second Street, Suite 402
Springfield, IL 62704
Archer Daniels Midland Company
4
BY:~
J~
Corporate Environmental Counsel
Archer Daniels Midland Company
4666 Fames Parkway
Decatur, IL 62526
(217)451-4883
ILLINOIS POLLUTION CONTROL BOARD
NOV 12200k
STATE OF I LIN
Pollution Control 6
)
)
)
)
)
)
PCB 04-79
)
(Citizens Enforcement-Noise)
)
)
)
)
)
#31102v1A
