ILLINOIS POLLUTION CONTROL BOARD

October 2, 1997

DAVID and SUSI SHELTON,

Complainants,

STEVEN and NANCY CROWN,

Respondents.

)

PCB 96-53

(Enforcement - Noise)

JEFFERY R. DIVER AND STEVEN KAISER OF THE JEFF DIVER GROUP APPEARED

ON BEHALF OF COMPLAINANTS;

RICHARD R. ELLEDGE AND ROBERT A. CARSON OF GOULD AND RATNER

APPEARED ON BEHALF OF RESPONDENTS.

OPINION AND ORDER OF THE BOARD (by G.T. Girard):

On September 8, 1995, David and Susi Shelton (Sheltons or complainants) filed this

citizen’s enforcement action (Comp.) concerning an air conditioner owned by Steven and Nancy

Crown (Crowns or respondents) at the Crowns’ home located at 685 Ardsley Road, Winnetka,

Cook County, Illinois. This action was filed pursuant to Section 31(b) of the Illinois

Environmental Protection Act (Act) (415 ILCS 5/31(b) (1994). The Sheltons allege that noise

from the air conditioner at the Crowns’ home has unreasonably interfered with the enjoyment of

their lives and property, and, in addition, the air conditioner is in violation of Illinois numeric

noise standards. The Sheltons claim that the Crowns have therefore violated Section 23 and 24

of the Act (415 ILCS 5/23, 5/24 (1994)) and Board regulations at 35 Ill. Adm. Code 900.102,

900.102(a), 900.102(b), and 901.104. The Sheltons request that the Board find that the Crowns

violated the Act and Board regulations, and order a civil penalty pursuant to Section 42 of the

Act (415 ILCS 5/42 (1994)).

Hearings were held in this matter before Board Hearing Officer June Edvenson on July 1,

July 2, July 12, July 16, July 20, July 21, August 19, and August 20, 1996. Complainants filed

their post-hearing brief (Comp. Br.) on February 21, 1997. Respondents filed their post-hearing

brief (Resp. Br.) and a motion to dismiss with prejudice (Mot. Dis.) on May 5, 1997. On May

19, 1997, complainants filed their reply brief (Reply Br.) and Response to Motion to Dismiss

(Res. Mot. Dis.). On June 2, 1997, respondents filed a “Motion to Strike” and an exhibit titled

“Exhibit 1” to the reply brief. The Board denies the motion to strike. The Board also denies the

motion to dismiss for the reasons discussed in a following section.

For the reasons discussed below, the Board finds that there is sufficient proof that noise

from the Crowns’ air conditioner unreasonably interfered with the Sheltons’ enjoyment of their

lives and property during those times when the air conditioner was operating between September

15, 1993, and January 1996. The Board does not find that the air conditioner noise violated the

Board’s numeric noise standards. The Board finds that no monetary penalty is warranted in this

case.

LEGAL FRAMEWORK

The Sheltons allege that the Crowns have violated Sections 23 and 24 of the Act and the

Board’s rules at 35 Ill. Adm. Code 900.102, 901.102(a), 901.102(b), and 901.104. Comp. at 2.

These statutes and regulations prohibit noise pollution in Illinois which exceeds specified

numeric limits or which produces nuisance noise. The Sheltons allege that noise from the

Crowns’ air conditioner has violated numeric noise standards and created nuisance noise which

has unreasonably interfered with the Sheltons’ lives and enjoyment of their property. See

Ferndale Heights Utilities Co. v. Illinois Pollution Control Board, 44 Ill. App. 3d 967, 358

N.E.2d 1224, 1228 (1st Dist. 1976).

Noise violations are defined by Section 23 and 24 of the Act. With regard to nuisance

noise, the prohibitions in the Act and Board regulations turn on the degree to which the noise

interferes with a complainant’s normal activities. Section 23 of the Act states:

The General Assembly finds that excessive noise endangers physical and

emotional health and well-being, interferes with legitimate business and

recreational activities, increases construction costs, depresses property values,

offends the senses, creates public nuisances, and in other respects reduces the

quality of our environment. It is the purpose of this Title to prevent noise which

creates a public nuisance. 415 ILCS 5/23 (1996).

Section 24 of the Act prohibits noise pollution stating:

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, so as to violate any regulation or standard adopted by the Board under

this Act. 415 ILCS 5/24 (1996).

Thus, under the Act, a noise violation has occurred if the complainant has proven that the

activity violates any numeric regulation or standard adopted by the Board or if a nuisance noise

has unreasonably interfered with the complainant’s enjoyment of life or with the pursuit of any

lawful business or activity.

In this proceeding, the Sheltons allege that noise emitted by the Crowns’ air conditioner

violated Board regulations found at 35 Ill. Adm. Code 900.102, 901.102(a), 901.102(b), and

901.104. The specific language of those Sections provides:

Section 900.102 Prohibition of Noise Pollution

No person shall cause or allow the emission of sound beyond the boundaries of

his property, as property is defined in Section 25 of the Illinois Environmental

Protection Act, so as to cause noise pollution in Illinois, or so as to violate any

provision of this Chapter.

Section 901.102 Sound Emitted to Class A Land

Except as elsewhere in this Part provided, no person shall cause or allow

the emission of sound during daytime hours from any property-line-noise-

source located on any Class A, B 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 sound pressure

levels shall be made less than 25 feet from such property-line-noise-

source.

Octave Allowable Octave Band Sound Pressure

Band Levels (dB) of Sound Emitted to any

Center Receiving Class A Land from

Frequency

Class C

Class B

Class A

(Hertz) Land

Land

31.5

125

250

500

1000

2000

4000

8000

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, B 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 sound

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

noise-source.

Octave Allowable Octave Band Sound Pressure

Band Levels (dB) of Sound Emitted to any

Center Receiving Class A Land from

Frequency

Class C

Class B

Class A

(Hertz) Land

Land

31.5

125

250

500

1000

2000

4000

8000

Section 901.104 Impulsive Sound

Except as elsewhere in this Part provided, no person shall cause or allow the

emission of impulsive sound from any property-line-noise-source located on any

Class A, B or C land to any receiving Class A or B land which exceeds the

allowable A-weighted sound levels specified in the following table, when

measured at any point within such receiving Class A or B land, provided,

however, that no measurement of sound levels shall be made less than 25 feet

from such property-line-noise-source.

Classification of

Allowable A-weighted Sound Levels in

Land on which

Decibels of Impulsive Sound Emitted

Property-Line-

to Receiving Class A or B Land

Noise-Source

is Located

Class A Land

Class B Land

Daytime

Nighttime

Class A Land

Class B Land

Class C Land

The Board has previously determined in nuisance noise proceedings that unreasonable

interference is more than an ability to distinguish sounds attributable to a particular source.

Rather, the sounds must objectively affect the complainant’s life or business activities. See

Kvatsak v. St. Michael’s Lutheran Church, (Aug. 30, 1990) PCB 89-182, 114 PCB 765, 773

(Kvatsak);

Kochanski v. Hinsdale Golf Club, (July 13, 1989) PCB 88-16, 1001 PCB 11, 20-21,

rev’d on other grounds

, 197 Ill. App. 3d 634, 555 N.E.2d 31 (2d Dist. 1990).

In determining whether unreasonable interference has occurred under the Act and Board

rules, the Illinois Supreme Court has directed that the Board must consider the facts of the case

in light of the factors outlined in Section 33(c) of the Act. Wells Manufacturing Co. v. Pollution

Control Board, 73 Ill. 2d 226, 232-33, 383 N.E.2d 148, 150-51 (1978), see also Ferndale Heights

Utilities, 44 Ill. App. 3d at 967-68, 358 N.E.2d at 1228. Those factors as set forth in Section

33(c) of the Act are as follows:

(i)

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

of the health, general welfare and physical property of the people;

(ii)

the social and economic value of the pollution source;

(iii)

the suitability or unsuitability of the pollution source to the area in

which it is located, including the question of priority of location in the

area involved;

(iv)

the technical practicability and economic reasonableness of reducing or

eliminating the emissions...resulting from such pollution source; and

(v)

any subsequent compliance. 415 ILCS 5/33(c) (1996).

FACTS

General Information

The Sheltons and their three children moved into their home at 707 Ardsley Road,

Winnetka, Illinois, in 1990. Tr. at 357, 395. In June 1991, the Crowns purchased the property at

685 Ardsley Road, which lies immediately south of the Sheltons’ home. Tr. at 12, 1267. The

Crowns’ nearest property line is approximately 28 feet from the nearest wall of the Sheltons’

home. Tr. at 364. The neighborhood is quiet, with private streets and individual properties

larger than one-half acre each. Tr. at 356-357.

Prior to taking up residence, the Crowns extensively remodeled their home, which

included removing the existing heating and air conditioning system in the structure. Tr. at 17.

After remodeling, the finished structure enclosed approximately 18,000 square feet. Stip. No. 1.

Remodeling began in fall of 1991. Tr. at 14, 366. The Crowns moved into their home in March

1995. Tr. at 80.

The Crowns’ new HVAC [heating, ventilation, air conditioning] system was designed

and installed by Mid/Res, Inc. (Mid/Res), according to specifications established by the

architect, Mr. Paul Constant. Tr. at 19. On February 12, 1992, Mid/Res provided Mr. Constant

with an initial proposal for the Crowns’ HVAC system (Exh. 66; Exh. 69; Tr. at 322-323), and

Mid/Res began installation in spring 1992. Tr. at 194. The HVAC system included a 25-ton

exterior unit (chiller unit) manufactured by the Trane Corporation (Trane), Model RAUC 25.

Ex. 73. Trane Model RAUC 25 is used primarily in commercial applications. Tr. at 181. This

chiller unit consists of two compressors (one ten-ton and one fifteen ton), and three fans. Tr. at

17. A Trane Engineering Bulletin published in February 1993 warned that installing commercial

size equipment near a residential lot line would be a misapplication that increased the likelihood

of a noise problem. Exh. 43 at III. The Bulletin also warned against locating outdoor HVAC

equipment in proximity to a sound reflective wall. Exh. 43 at III. The Crowns’ chiller unit was

located in front of a two-story stone wall of the Crown residence and was about 60 feet from the

nearest wall of the Shelton residence. Exh. 2, 51; Tr. at 794. The completed HVAC system for

the Crown home cost approximately $300,000. Stip. No. 1.

The chiller unit was first tested in September 1993. Tr. at 21, 366-368. When the unit

was first turned on, the Sheltons called the local police because they thought the noise resembled

an explosion. Tr. at 367. The Sheltons then called the Crowns who agreed to turn off the unit.

Tr. at 368. During the next three years the Sheltons and the Crowns had numerous meetings and

exchanged correspondence over the Sheltons’ objection to the noise level of the chiller unit. Tr.

at 372, 373, 419, 421, 435, 438, 525-527, 792, 811, 815, 816, 822, 823, 826, 841, 842, 848, 853;

Exh. 6, 17, 18(a)(b), 19, 21, 22, 40, 41, 43, 45 49, 90, 107.

The Crowns determined that moving the chiller was not a feasible because major HVAC

components were already installed. Tr. at 1201, 1320. Mid/Res, Inc. attempted to attenuate the

noise in fall 1993 and spring 1994 by several methods. Tr. at 222; Exh. 32. Sheets of one-half

inch thick acoustic material, Armaflex, were applied to the interior of the chiller casing in

October 1993. Tr. at 218, 621, 628. The chiller was rotated 90 degrees so that the air intake

pointed east, away from the Sheltons’ house, rather than north toward the Sheltons’ house. Tr. at

1301; Resp. Br. at 8. Finally, metal “cones” were fabricated for installation over the chiller fans

(Tr. at 1301, 1303), which Mid/Res considered at the time to be the major noise source. Tr. at

225. In June 1994, the Crowns initiated 24-hour operation of the chiller unit to protect the

millwork from humidity and dry out the plaster. Tr. at 79-80. The 24-hour a day operation

continued through the summer of 1994. Tr. at 80. In June 1994, the Crowns also installed

wooden fences and shrubbery between the Crown and Shelton properties to reduce the sound.

Tr. at 398, 1395, 1401. Ms. Marjorie Julian, the Sheltons’ neighbor to the north testified that the

chiller unit noise was not reduced by the fences and shrubbery. Tr. at 156-157.

On January 5, 1995, Mr. Shelton wrote a letter to the Village of Winnetka (Winnetka)

including a petition signed by neighbors who had visited the Sheltons’ home, asking Winnetka,

pursuant to Winnetka noise ordinance, to order the Crowns to significantly reduce the noise from

their chiller unit. Exh. 7. Mr. Williams, Winnetka Village Manager, convened a meeting of the

parties on January 17, 1995. Tr. at 1352. At that meeting, plans to construct an acoustic

enclosure were discussed. Exh. 35. The acoustic structure constructed by the spring of 1995

was eight feet high, two feet higher than the chiller, and constructed of acoustic panels. Tr. at

1131.

The Crowns again activated the chiller unit in April 1995. Tr. 442, 498. The Sheltons’

noise complaints continued through the spring and summer of 1995. Tr. at 443-447. Mr. Allen

Shiner of Shiner and Associates, acoustical engineers, measured noise from the chiller unit on

June 19, 1995. Exh. 60. He determined that the discharge cones did not mitigate the sound and

they were removed. Tr. at 217-221; Exh. 60. After removal of the cones prior to the 1995

cooling season (Tr. at 501), the Sheltons noticed “a very slight improvement in the sound.” Tr.

At 502. However, correspondence about the noise from the chiller unit was exchanged between

the Sheltons and the Crowns during summer 1995, culminating in the Sheltons’ complaint filed

before the Board in September 1995. The Sheltons relocated their family to Greenville, Ohio, in

January 1996. Comp. Br. at 23. The Sheltons apparently sold their home in April or May 1997

(May 5, 1997, affidavit of Arie Steven Crown).

In July and August 1996, Mid/Res installed fan motor variable speed controls. Mid/Res

modified the height and configuration of the chiller unit acoustic shield to include a roof over the

chiller unit. Tr. at 1534-1535. On August 15, 1996, Shiner and Associates measured sound

levels at the Shelton property line and residence and found that the modifications resulted in

significantly reduced noise levels from the chiller unit. Exh. 125, 126, 127. The specific results

of these final sound measurements are more fully described in the subsection below entitled

“Sound measurements by George Kemperman.” Greg Zak, a noise expert with the Illinois

Environmental Protection Agency (IEPA), testified that the final sound mitigation measures

represented an “elegant solution” to the problem based on his visit to the Crown and Shelton

properties on August 21, 1996. Tr. at 1477. Greg Zak further testified that based on his personal

observation and review of the date available, the chiller unit operates in compliance with both

the nighttime numeric noise standards at Section 901.102(b) and nuisance noise standards. Tr. at

1477.

Sound Monitoring Data

Sound emanating from the Crown chiller unit was measured on seven different occasions

between July 1994 and August 1996 by Allen Shiner (7-5-94 & 6-19-95), George Kemperman

(5-2-96, 8-9-96 & 8-15-96), Greg Zak (6-27-96), and Robert Elfering (8-15-96). A brief

summary of the sound monitoring data obtained on each of the seven monitoring events is

presented below.

Sound Measurements by Allen Shiner and Robert Elfering

Shiner and Associates, acoustical engineers, were retained by both the complainants and

the respondents to monitor sound levels in the vicinity of the Crown chiller unit. Shiner’s

engineers measured sound levels on three occasions. On the first two occasions, Allen Shiner

monitored sound levels emanating from the Crown chiller unit on behalf of the complainants.

On July 5, 1994, Shiner measured the sound levels from the Shelton’s property within 20 feet of

Shelton’s south property line. Shiner stated that the instrumentation was established in

accordance with the Board regulations. Tr. at 293. Based on a comparison of the measured

sound levels with the allowable octave band sound pressure levels specified under the numeric

noise standards at 35 Ill. Adm. Code 901.102, Shiner concluded that the Crown chiller unit

exceeded the allowable levels at all frequencies during the night hours of operation. Exh. 56.

The sound levels from the Crown chiller unit were again measured by Shiner on June 19,

1995, after installation of the acoustical housing. Exh. 60. The sound levels were measured

under different operating conditions to assess the sound-reducing effectiveness of the discharge

cones and the acoustical housing placed on the chiller unit. Again, Shiner testified that the

measurements were made in accordance with applicable Board regulations. Tr. at. 302. Shiner

concluded that the sound levels exceeded the Board’s nighttime standards at all frequencies,

except for the sound level at octave band center frequency of 250 Hz. Tr. at 318.

On August 15, 1996, Robert Elfering, an engineer with Shiner and Associates, measured

sound levels from the Crown chiller unit on behalf of the respondents. Exh. 124, 125. Elfering

measured sound levels at five locations: near the fence (property line) between the Shelton and

Crown residences; on the Shelton patio opposite the Shelton window air conditioner; near the

fence, 50 feet north-east of the Crown chiller unit; on the roof of the enclosed porch; and on the

edge of the Crown driveway, opposite the Crown chiller unit. The sound levels were measured

at different operating conditions, which included: the Crown chiller unit operating in nighttime

mode with the Shelton air conditioner switched on and off; the Crown chiller unit operating in

day time mode at 60 Hz (fan at full speed) with Shelton air conditioner switched off; the Crown

chiller unit operating in day time mode at 20 Hz (fan speed at 33% of full speed) with the

Shelton air conditioner off; and with both Crown and Shelton air conditioners switched off to

determine ambient noise conditions.

Sound Measurements by Greg Zak

Greg Zak, a noise technical expert with the IEPA, monitored sound levels on both

Shelton and Crown properties on June 27, 1996 at around 9.30 p.m. The first location (site 1)

was outside the second floor bedroom window of the Shelton residence. Exh. 92 at 3. The

second location (site 2) was on the Crown property at a point approximately 30 feet north of the

Crown chiller unit. See Attachment to Exh. 92. At the second location, Zak also measured the

ambient sound, which are the background sound levels with the Crown chiller unit turned off.

Tr. at 604. Zak stated that the measurements were made in accordance with the Board

regulations. Tr. at 572. Zak described the acoustic properties of the area as a complex echoic

field due to the parallel house walls and stockade fence. Tr. at 573-575.

Sound Measurements by George Kemperman

George Kemperman, a noise control engineer, was retained by respondent to evaluate the

noise sources associated with the Crown chiller unit. Kemperman monitored the sound levels

from the Crown chiller unit on three different occasions. On May 2, 1996, Kemperman recorded

sound levels from the chiller unit as a part of his investigation of the noise source. Based on

these measurements, he made recommendations for improving noise control that included two

different modes of operation: normal operation, with two compressors and three fans operating

at full speed; and nighttime operation with one compressor and one fan operating full speed.

Kemperman believed that the recommended operational changes would result in compliance

with the Board’s nighttime numeric noise emission standards. Tr. at 1507-1510.

However, Kemperman revised his recommendations after evaluating the sound level

measurements recorded by Zak on June 27, 1996. Tr. at 1510-1511. In this regard, he stated that

his earlier projections were much lower than those observed by Zak. Tr. at 1511. Kemperman

then made the following recommendations: fan speed should be reduced 50 percent during night

time; the height of the enclosure should be increased above the fan discharge using plywood

with sound absorptive treatment; and the top opening of the enclosure should be closed so that

air would be forced to go through the inlet silencer. Tr. at 1511-1512.

Kemperman measured the sound levels from the Crown chiller unit twice after

implementation of his recommendations. On August 9, 1996, he measured sound levels at the

property line at elevations of 8 feet, 12 feet, and 16 feet above the ground. The measurements

were taken at different elevations in order to account for the line of sight from the top of the

chiller unit enclosure to the second floor bedroom window of the Shelton residence. Tr. at 1515.

The measurements were taken at two fan speeds: one at maximum fan speed and one at slightly

less than half of the maximum speed. Tr. at 1516. Based on his measurements, Kemperman

concluded that reducing fan speed resulted in the decrease of sound levels by 15 to 20 dB. Exh.

122.

Kemperman again measured sound levels at three locations in the vicinity of the Crown

chiller unit on August 15, 1996. The sound levels were measured four feet above the ground at

approximately eight feet north of the property line between the Shelton and Crown residences,

and on the patio on the east side of the Shelton residence. The third location was a second story

bedroom window over the porch roof of the Shelton residence (14 feet above ground). The

sound measurements on August 15, 1996, showed significant reduction in sound emission from

the chiller unit. The sound levels measured in this final sound monitoring event were below the

Board’s numeric noise emission standards of Section 901.102. Exh. 125.

Effects of Noise Interference

In June 1994, when the Crown chiller unit began operating 24 hours per day (Tr. at 375),

the noise from the chiller unit could be heard in the Sheltons’ kitchen, living room, dining room,

family room, master bedroom, and the bedroom of their eldest son, David B. Shelton. Tr. at 376-

377. The noise was loudest on the southern end of the Shelton home second floor, where son

David B. Shelton’s bedroom was located. Tr. at 377. Susi Shelton testified that the noise was so

loud that her son could not sleep in his room even with the windows closed and a fan operating

in his room. Tr. at 377. David B. Shelton testified that the noise was very loud and annoying.

Tr. at 523. He testified that he could feel vibrations caused by the chiller unit noise if he put his

head on the window or wall of his bedroom. Tr. at 530-532. The loud noises were produced by

the cycling of the system on and off, pulsating sound, and the high pitches of the fans. Tr. at

377. Susi Shelton described the noises as worse at nighttime when they would be awakened by

the noise. Tr. at 380. She testified that the noise prevented the family from sleeping, leading to

exhaustion, headaches, stress, and tension in the family. Tr. at 381.

David Shelton described the chiller unit noise in 1994 as “an extensive, deep, powerful

drone that penetrated the house. And, it was interspersed with huge sound surges, booms, if you

will, as different components of the system kicked in and out. At times, particularly in the

evening, we could also hear higher pitched sound such as a waterfall and hear also beating

sound, which I’m told were probably different phases of the system going in and out of phase

with each other.” Tr. at 818. David Shelton said that the chiller unit noise caused family

impacts such as loss of sleep, his son moving from his room, inability to use their backyard or

patio, extreme tiredness, depression, anxiety, and short tempers. Tr. at 818-819. The Shelton’s

son stopped camping in either the front or backyard. Tr. at 528-529. Susi Shelton was unable to

escape the noise of the chiller unit by going indoors, closing the windows, or turning on either

music or television. Tr. 388-389. These impacts continued from June through September 1994.

Tr. at 532, 820. David Shelton hired Mr. Shiner to take the first noise measurements of the

Crown chiller unit on July 5, 1994. Exh. 56.

Despite the installation of acoustical panels and discharge cones prior to the 1995 cooling

season, the Sheltons reported that throughout April, May, and June 1995 the noise from the

chiller unit created stress and tension in the Shelton family. Tr. at 445-446. Susi Shelton

testified that she experienced headaches and pains down her neck and across her shoulders. Tr.

at 445-447. The noise disrupted the Sheltons’ sleep and could be heard in the Sheltons’ kitchen,

living room, dining room, family room, master bedroom, and throughout the entire second floor

of their home. Tr. at 443-444. Closing windows and turning on music or television did not

reduce the level of annoyance caused by the chiller unit. Tr. at 445-445. Son, David B. Shelton,

testified that after the chiller unit was activated in April 1995, he slept in his bedroom only half

the time. Tr. 533, 535. He testified that when sleeping in his bedroom, the chiller unit woke him

when parts clicked on or off, and as a consequence in the morning he felt tired, cranky, lazy, and

found it difficult to concentrate in school with little sleep. Tr. at 533-534.

On June 19, 1995, Mr. Shriner again measured noise from the chiller unit in the evening.

Exh. 60. Mr. Shriner reported that the acoustic housing and removing the discharge cones

significantly reduced the noise. Exh. 60. After removal of the discharge cones, the Sheltons

could still hear the low drones, high pitches, and on/off cycle emitted by the chiller unit in their

home with the windows closed in late June, 1995. The noise was still much worse on the second

floor. Tr. at 449.

Throughout July, August, and September 1995, Susi Shelton was able to sleep in her first

floor bedroom located on the northern end of her home only if the windows were closed, the

overhead fan was operating, and she used a prescription sleeping additive. Tr. at 459-460.

David Shelton had difficulty sleeping even when using ear plugs, with a fan operating and the

windows closed. Tr. at 890. Susi Shelton testified that she was unable to wear her corrective

contact lens without problems during June, July, and August 1995 because her eyes were dry

from lack of sleep. Tr. at 460-462. However, Susi Shelton did testify that the removal of the

discharge cones in June 1995 and an operational adjustment to reduce on-and-off cycling

resulted in a modest reduction in the chiller unit noise. Tr. at 459. David Shelton also wrote in a

letter to Steven Crown on June 26, 1995, that “[t]he new enclosure has helped, but it has not

solved the air conditioner noise problem.” Exh. 41.

Ms. Marjorie Julian testified that she was awakened at night by the noise from the Crown

chiller unit and felt her floor vibrating from the noise. Tr. at 159-160. Ms. Julian and her

husband, Robert, live just north of the Sheltons’ home at 727 Ardsley Road. Tr. at 126-127. The

south face of the Julians’ home is approximately 120 to 145 feet from the Crowns’ north

property line. Tr. at 155.

MOTION TO DISMISS

The Crowns filed a motion to dismiss on the grounds that the case is now moot. Mot.

Dis. at 1. The Crowns assert that the modifications to the chiller unit have reduced the noise

emissions so that the unit meets both the numeric noise and nuisance noise standards. Mot. Dis.

at 1. The Crowns maintain that even if the Board finds that the chiller unit emitted noises in

1995 and 1996 that constituted noise pollution, there is no existing noise pollution and no future

prospect of noise pollution . Mot. Dis. at 2. Therefore, the complaint should be dismissed with

prejudice as moot. Mot. Dis. at 2.

The Sheltons maintain that a Board order is necessary to ensure that the Crowns maintain

the physical structures and operating protocols necessary to maintain compliance with the Act.

Res. Mot. Dis. at 1. The Sheltons also cite Section 33 of the Act as a basis for ruling against the

motion to dismiss: “It shall not be a defense to findings of violations of provisions of the Act or

Board regulations or a bar to the assessment of civil penalties that the person has come into

compliance subsequent to the violation...” 415 ILCS 5/33 (1996).

The Board denies the motion to dismiss. There is ample statutory authority, as noted by

the Sheltons at Section 33 of the Act (415 ILCS 5/33 (1996)), for the Board to find a violation of

the Act or Board regulations in cases where compliance has been achieved subsequent to a

violation. The Board will now discuss the allegations and findings of violation in the sections

below.

ARGUMENTS AND ANALYSIS

The Sheltons have asserted that noise emitted by the Crowns’ chiller unit has violated

both the numeric noise and nuisance noise regulations of the Board. First, the Board will discuss

a novel argument raised by the Crowns which asserts that Section 31(b) of the Act (415 ILCS

5/31(b) (1994)) does not authorize a citizen’s enforcement action with regard to past violations,

based on conditions or emissions which did not exist and were not threatened when the

complaint was filed. Resp. Br. at 3. Then, we will present the arguments and discuss the

allegations concerning numeric noise violations. Finally, we will turn to the nuisance noise

complaint and the civil penalty issue.

Citizen’s Enforcement Authority with Regard to Past Violations

The Crowns assert that because Section 31(b) of the Act (415 ILCS 5/31(b) (1994))

which provides that a citizen may file “a written complaint ... against any person allegedly

violating the Act...” is written in the present tense (i.e., violating), a citizen has no authority to

bring enforcement action for past violations. The Crowns therefore maintain that the Board

should use its discretionary power under Section 31(b) to dismiss the complaint. The Board does

not agree with the Crowns, and can find no appellate or Supreme Court decision during the

Board’s 27 years of existence that agrees with the Crowns’ argument. Therefore, the Board

reiterates that the Sheltons have authority under Section 31(b) of the Act to bring this citizens

enforcement action.

The Board notes that Section 31(b) in the 1994 version of the Illinois Compiled Statutes (415

ILCS 5/31(b) (1994))

is now found at Section 31(d) of the Act (415 ILCS 5/31(d) (1996)).

Numeric Noise Allegations

The Sheltons argue that the numeric noise limitations set forth at 35 Ill. Adm. Code

901.102(a) and (b) apply to the Crown chiller unit and were exceeded on July 5, 1994, June 19,

1995, June 26, 1996, and August 15, 1996. Comp. Br. at 43. The Sheltons maintain that the

residential exemption from the numeric noise standards (35 Ill. Adm. Code 901.107(a)) does not

apply since the Crowns’ chiller unit is not a residential unit but rather a commercial unit

operated in a commercial manner. Comp. Br. at 43-44. In addition, the Sheltons assert that if

the residential exemption does apply, it should only be applicable after March 1995, when the

Crowns actually occupied their residence. Comp. Br. at 44.

The Crowns argue that the numeric noise standards Section 901.102 have no application

in this proceeding. The Crowns contend that Section 901.107(a) exempts the application of the

numeric standards of Section 910.102 to sound emitted from land used as specified by SLUCM

Code 100

, which includes “household units.” 35 Ill. Adm. Code 901.101(a) Appendix B at B-1

Code 1100. The Crowns assert that characterization of the chiller unit as a commercial unit is

irrelevant to an applicability determination with regard to the numeric noise standards at Section

901.107(a). The Crowns maintain that the use of the premises on which the chiller is located

determines the applicability of Section 901.107(a), since Section 907.107(a) specifically exempts

“land used as specified in SLUCM Codes 110...,” where SLUCM Code 110 covers “household

units.” Resp. Br. at 6.

The Board finds that the Part 901.102 numeric standards do not apply in this case. The

exemption at Section 901.107(a) and the SLUCM Code 110 (Part 905, Appendix B) indicates

that the Part 901.102 numeric standards do not apply to sound emitted from land used for

household units.

Thus, it appears that the exemption at Section 901.107(a) would apply to

noise emitted from the Crown chiller unit since the chiller unit is a part of the Crown residence,

i.e. the “household unit.” The Board is not persuaded by the Sheltons’ argument that the Crown

residence was a “construction site” from the time the Crowns began operating the chiller unit in

1994, until the Crowns moved into the structure in March 1995, and therefore was not entitled to

the residential exemption at Section 901.107. It is clear from the SLUCM definition of

household unit that the intent to occupy a structure as separate living quarters is the key to this

operational definition. There is no exception that during the construction phase, a household

unit intended for occupancy as separate living quarters should be treated as a commercial unit.

The Board’s regulations adopted the use of the Standard Land Use Coding Manual (SLUCM)

which

The term

can be

“household

found at 35

unit”

Ill.

Admdefined

. Code

901.101(a)

the SLUCM

Appendix

Code as

a house, an apartment, or other

group of rooms, or a single room that is intended for occupancy as separate living quarters.

Occupants of “household units” do not live and eat with other persons in the structure (such as

boarding house), and there is either (1) direct access from the outside or through common hall, or

(2) there is a kitchen or cooking equipment for exclusive use of the occupants of the unit. The

occupants may be a family, a group of unrelated persons, or a person living alone. Mobile

homes...

Even if the numeric standards were applicable, the review of the sound data indicates that

the monitoring results cannot be compared with the numeric standards to establish a violation

since the sound measurements were not obtained in accordance with the Board regulations at

Section 900.103. Specifically, Section 900.103(b) requires sound measurements to be based

upon L

averaging with a reference time of one hour. The Board has previously found that only

sound levels measured on the basis of L

averaging over a period of one hour and corrected for

ambient sound can be compared with the allowable octave band sound pressure levels specified

at 35 Ill. Adm. Code 901.102 to show compliance or non-compliance. Tex v. Coggeshall, PCB

90-182.

Even though sound levels in this case appear to be measured on the basis of L

averaging, the reference times were significantly less than the required one hour. Therefore,

even if the Board had not previously found that the residential exemption for the numeric noise

standards applied in this case, the sound measurements in the record do not appear to be

sufficient to find a numeric noise violation. However, as discussed further below, the sound

evidence can still be considered when reviewing the Section 33(c) factors in a nuisance noise

case. See Discovery South Group, Ltd., v. Pollution Control Board, 275 Ill. App. 3d 547, 559,

656 N.E. 2d 51, 51(1st Dist. 1995).

Nuisance Noise Allegations

The Sheltons argue that the noise from the Crowns’ chiller unit unreasonably interfered

with the Sheltons’ use and enjoyment of their home during those times when the chiller unit

operated between September 1993 and August 1996. Comp. Br. at 8-25. The Sheltons maintain

that the interference was unreasonable because a review of the five factors in Section 33(c) of the

Act leads to a proposed Board finding against the Crowns for each factor. Comp. Br. at 41.

Finally, the Sheltons assert that the Board should impose a $30,000 civil penalty. Comp. Br. at

44.

The Crowns maintain that this dispute has gone through two basic phases: the pre-

enclosure phase from fall 1993 to spring 1995, and the post-enclosure phase including summer

and fall 1995 and early summer of 1996. Resp. Br. at 7. The Crowns argue that the noise

controversy during the pre-enclosure phase was mediated by Winnetka and led to construction of

the initial enclosure of the chiller unit in spring 1995. Essentially, the Crowns argue that

because local authorities attempted to mediate the dispute during the pre-enclosure phase, the

Board does not have jurisdiction over that time period. Resp. Br. at 7. The Crowns then argue

that after the acoustic enclosure was in place, the Sheltons did not establish that the chiller unit

noise unreasonably interfered with the Sheltons’ use or enjoyment of their property. Resp. Br. at

11. The Crowns maintain that a number of witnesses testified that the acoustic enclosure

reduced the sound levels emitted by the chiller unit in early summer 1995. Resp. Br. at 11.

Finally, the Crowns challenged the Sheltons credibility and asserted that the Sheltons’ windows

air conditioner was noisier than the Crown chiller unit. Resp. Br. at 13.

The Board has made exception to this precedent only in cases where a party has shown that the

problem noise at issue is emitted in bursts shorter than one hour, such as discrete songs. See

Village of Matteson v. World Music Theater

(February 25, 1993), PCB 90-146, slip. op. 45-46,

56, 275 Ill. App. 3d 547, 656 N.E. 2d 51 (1st Dist. 1995). Neither of the parties made such a

demonstration in this case.

The Board finds that the testimony of the Sheltons clearly demonstrates that the noise

from the Crowns’ chiller unit interfered with the Sheltons’ lives and use and enjoyment of their

property. To determine if the interference was “unreasonable” the Board must examine the

factors enumerated in Section 33(c) of the Act. Before proceeding to discuss the Section 33(c)

factors, the Board will first address questions raised concerning the appropriate time frame to

consider in this complaint.

Appropriate Time Period

The Crowns raise an apparent jurisdictional challenge to the Board’s authority to find

nuisance noise violations pursuant to the Act for the “pre-enclosure phase” from fall 1993 to

spring 1995 because Winnetka was attempting to “mediate” the dispute for that time period. The

Board reiterates its order of October 5, 1995, which found that this complaint was not

duplicitous, and therefore directed this matter to hearing. The Sheltons argue that the time

period of the complaint should include the 1996 cooling season, up until the final enclosure

adjustments in August 1996. However, the record shows that the Sheltons moved from their

home in January 1996 and the house has apparently been sold. There is not enough evidence in

the record to show that noise from the Crowns’ chiller unit interfered with the Sheltons’ lives

and enjoyment of their property after they moved in January 1996. Therefore, the Board finds

that the proper time period to consider in the action is from the chiller unit’s first operation in

September 1993, until the Sheltons moved in January 1996.

Section 33(c)(i): Degree of Injury or Interference

In assessing the character and degree of injury or interference caused by the noise

emissions from the Crowns’ chiller unit, the Board looked to whether the noises “substantially

and frequently interferes with the use and enjoyment of life and property, beyond minor trifling

annoyance or discomfort.” Kenneth Metivier and Cynthia Metivier v. Douglas Kenyon d/b/a

Douglas Kenyon, Inc., PCB 92-74 slip op. at 4, (December 16, 1993), citing Kvatsak. Susi and

David Shelton, and their son David B., all testified that they were unable to sleep due to the

chiller unit noise, which was a constant feature of their environment during the cooling season

for the time frame in question. Son David B. Shelton was not able to sleep in his bedroom on the

second floor facing the Crowns’ residence on numerous occasions when the chiller unit was

operating. He testified that noise from the Crowns’ chiller unit vibrated the windows and wall of

his bedroom. All three Sheltons testifying noted increased stress and tension in the family when

the chiller unit noise was present. In addition, Ms. Julian, the Sheltons’ neighbor to the north,

further from the Crowns’ residence than the Sheltons, testified that the noise from the Crowns’

chiller unit awakened her at night and vibrated the floor of her home. Susi Shelton attributed

several of her medical problems to the noise, but did not introduce any evidence from medical

personnel into the record. Nevertheless, the record in this proceeding clearly indicates that the

noise from the Crowns’ chiller unit went beyond mere trifling annoyance to substantially and

frequently interfere with the Sheltons’ use and enjoyment of their property. The decibel level of

the sound measurements in this record also support this analysis. Therefore, this 33(c) factor

supports a Board finding of unreasonable interference.

Section 33(c)(ii): Social and Economic Value of the Pollution Source

The record contains little information on the social and economic value of the pollution

source. The only evidence concerns the necessity of removing humidity from the Crown

residence to preserve elaborate interior appointments. Therefore, this 33(c) factor neither

supports nor mitigates a Board finding of unreasonable interference.

Section 33(c)(iii): Suitability or Priority of Location

The documents published by the chiller unit manufacturer warned that the 25-ton chiller

unit may not be suitable in a residential application because of noise emitted by the unit. The

progression of sound measurements during the pendency of this dispute demonstrate that

operational modification and a properly designed acoustical enclosure were essential to adapt

this particular chiller unit to a residential setting. In summary, the Crowns’ chiller unit was

unsuitable for a residential setting before the operational controls and proper acoustical

enclosure were in place. Therefore, this 33(c) factor supports a Board finding of unreasonable

interference.

Section 33(c)(iv): Technical Practicability and Economic Reasonableness of Reducing

Emissions

The record in this case supports a finding that the nuisance noise from the Crown chiller

unit has been attenuated, therefore the control methods were technically practicable. The record

does not expressly address economic reasonableness, although some monetary figures are

available. The total cost of the HVAC system was approximately $300,000. Stip. No. 1. The

cost of noise control was approximately $20,000. Stip. No. 1. Therefore, the Board finds that

the seven percent (7%) additional cost of appropriate noise control was reasonable and this

factor supports finding an unreasonable interference.

Section 33(c)(v): Subsequent Compliance

The record indicates that the operational controls and acoustic enclosure have mitigated

the noise emitted from the Crown chiller unit so that it is no longer produces nuisance noise.

Therefore, this 33(c) factor mitigates a Board finding of unreasonable interference.

Nuisance Noise Summary

A review of all the factors set forth in Section 33(c) of the Act supports a finding that

noise from the Crowns’ chiller unit was an unreasonable interference in the lives of the Sheltons

during those times when the chiller unit was operating between September 1993 and January

1996. The record shows that the effects on the Sheltons’ lives and enjoyment of their property

went beyond mere annoyance. The record also demonstrates that the potential for noise

problems in a residential setting with this chiller unit could have been anticipated before

installation because of printed warnings in the manufacturer’s literature. The nuisance noise

emissions were mitigated with operational controls and a properly designed acoustical enclosure,

which added a reasonable seven percent (7%) to the cost of the HVAC system. Therefore, the

Crowns are found to have violated Section 23 and 24 of the Act because of the nuisance noise

emissions from their chiller unit during the time period in question.

CIVIL PENALTY

In determing the appropriate civil penalty, the Board considers the factors set forth in

Section 33(c) and Section 42(h) of the Act. See People v. Berniece Kershaw and Darwin Dale

Kershaw d/b/a Kershaw Mobile Home Park, PCB 92-164 (April 20, 1994). The Board must bear

in mind that no formulae exist, and all facts and circumstances must be reviewed. Kershaw, at

14.

The Board has stated that the statutory maximum penalty “is a natural or logical

benchmark from which to begin considering factors in aggravation and mitigation of the penalty

amounts” IEPA v. Allen Barry, individually and d/b/a Allen Barry Livestock, PCB 88-71, 111

PCB 11 at 72 (May 10, 1990). The formula for calculating the maximum penalty is contained in

Section 42(a) and (b) of the Act (415 ILCS 5/42(a) and (b) (1994)). Section 42(a) provides for a

civil penalty not to exceed $50,000 for violating a provision of the Act or Board regulations, and

an additional civil penalty not to exceed $10,000 for each day during which the violation

continues.

Section 42(h) of the Act states that “[i]n determining the appropriate civil penalty to be

imposed, the Board is authorized to consider any matters of record in mitigation or aggravation

of penalty, including but not limited to the following factors: (1) the duration and gravity of the

violation; (2) the presence or absence of due diligence on the part of the violator in attempting to

comply with the requirements of this Act and regulations there under or to secure relief

therefrom as provided by this Act; (3) any economic benefits accrued by the violator because of

delay in compliance with requirements; (4) the amount of monetary penalty which will serve to

deter further violations by the violator and to otherwise aid in enhancing voluntary compliance

wit this Act by the violator and other persons similarly subject to the Act; and (5) the number,

proximity in time, and gravity of previously adjudicated violations of this Act by the violator.”

The Sheltons argue that the Board could order a maximum penalty of $3,050,000 based

on Section 42(a) of the Act. Comp. Br. at 46. The Sheltons maintain that based on their review

of the 42(h) factors, a civil penalty of $30,000 should be levied by the Board in this case. Comp.

Br. at 45-46. The Crowns argue that in view of all the eventually successful measures taken to

control sounds emitted by the chiller unit, no civil penalty is warranted. Resp. Br. at 17.

After careful review of the Section 42(h) factors, as indicated in the remainder of this

paragraph, and Section 33(c) factors discussed above, the Board finds that no civil penalty is

warranted in this case. The record indicates that the duration and gravity of the violation

supports a civil penalty. Section 42(h)(1). However, Board consideration of the other four

factors does not support a civil penalty. The Board is concerned that mitigation of the nuisance

noise took two full cooling seasons (see due diligence, Section 42(h)(2)), however, the record

also shows that the Crowns continually experimented with noise control measures during that

time. There is nothing in the record to indicate that the Crowns received economic benefits from

noncompliance. Section 42(h)(3). The Crowns are presently in compliance, so no monetary

penalty is necessary to enhance compliance. Section 42(h)(4). Finally, there is nothing in the

record to indicate that the Crowns have any previously adjudicated violations of the Act. 415

ILCS 5/42(h)(5).

ORDER

The Board finds that the Crowns have violated Section 23 and 24 of the Illinois

Environmental Protection Act in relation to the nuisance noise emitted by the chiller unit on their

property at 685 Ardsley Road, Winnetka, Cook County, Illinois, during the times when the

chiller unit operated between September 1993 and January 1996. The Board finds that no civil

penalty is warranted in this case.

This docket is closed.

IT IS SO ORDERED.

Section 41 of the Environmental Protection Act (415 ILCS 5/41 (1996)) provides for the

appeal of final Board orders to the Illinois Appellate Court within 35 days of service of this

order. Illinois Supreme Court Rule 335 establishes such filing requirements. See 145 Ill. 2d R.

335; see also 35 Ill. Adm. Code 101.246, Motions for Reconsideration.

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

above opinion and order was adopted on the 2nd day of October 1997, by a vote of 7-0.

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board