Ferndale Heights Utilities Co. v. Illinois Pollution Control Bd.

• Decision Date: 21 December 1976
• Docket Number: No. 62301,62301
• Citation: 358 N.E.2d 1224,44 Ill.App.3d 962,3 Ill.Dec. 539
• Parties: , 3 Ill.Dec. 539 FERNDALE HEIGHTS UTILITIES CO., Petitioner, v. ILLINOIS POLLUTION CONTROL BOARD and Illinois Environmental Protection Agency, Respondents.
• Court: United States Appellate Court of Illinois

Page 1224

358 N.E.2d 1224

44 Ill.App.3d 962, 3 Ill.Dec. 539

FERNDALE HEIGHTS UTILITIES CO., Petitioner, v. ILLINOIS POLLUTION CONTROL BOARD and Illinois Environmental

Protection Agency, Respondents.

No. 62301.

Appellate Court of Illinois, First District, Second Division.

Dec. 21, 1976.

J. M. Bumgarner, Environmental Protection Agency, Springfield, for respondents.

Chapman & Cutler, Chicago, for petitioner; John N. Vander Vries, Daniel J. Kucera, Chicago, of counsel.

STAMOS, Presiding Justice.

This action involves a petition by Ferndale Heights Utilities Co. (hereinafter 'Ferndale') for review of an order of the Illinois Pollution Control Board (hereinafter 'Board') which found that petitioner has allowed the emission of sound beyond its property boundaries so as to cause noise pollution in violation of Rule 102 of the Illinois Noise Regulations and Section 24 of the Environmental Protection Act. (Ill.Rev.Stat.1973, ch. 111 1/2, par. 1001 Et seq.) The Board's order was based upon a complaint filed by the Illinois Environmental Protection Agency (hereinafter 'Agency') which alleged that violations of the Act occurred on each day of company operation between August 10, 1973 and August 6, 1974. The Board also directed that Ferndale pay a civil penalty in the amount of $500.

From entry of the order finding it guilty of noise pollution and the assessment of a penalty thereon, Ferndale appeals contending (1) that Rule 102 of the Illinois Noise Regulations is invalid and contrary to the Act, (2) that the Board's finding of Ferndale's violation of Rule 102 is contrary to the manifest weight of the evidence, and (3) that the imposition of a civil penalty was arbitrary and excessive.

In lieu of protracted litigation the parties have submitted stipulations of fact. As detailed in these stipulations, Ferndale was organized as a corporation in 1957 for purposes of providing public utility water and sanitary sewer service in various areas, including what is now known as Pinehurst Manor Subdivision in Cook County, Illinois. This subdivision borders Ferndale's Long Grove Road Pumping Station.

The Long Grove Pumping Station was built in 1969 and equipped with a natural gas powered engine so as to guarantee uninterrupted service for Ferndale's 2,500 customers, including approximately 400 customers in the Pinehurst Manor Subdivision.

On October 10, 1973, the Agency informed Ferndale that complaints had been received with respect to noise emanating from the Long Grove Pumping Station and that measurements of noise emanating from the pump house, when taken upon a complainant's property, indicated a possible violation of Rule 102. Shortly thereafter, Ferndale retained a firm of consultants to investigate the situation.

On October 22, 1973, Ferndale responded to the Agency's inquiry and indicated that it was in the process of studying the problem and requested that the Agency provide relevant noise survey data. On November 2, 1973, the Agency complied with this request.

On December 7, 1973, the Agency informed Ferndale that the matter had been transferred to the Agency's Enforcement Services Section for prosecution and invited further response as to Ferndale's intent. By letter of December 19, 1973, Ferndale denied that it was committing noise pollution; suggested that certain individuals had complained to the Agency in revenge of a recent rate increase; and indicated that it would develop a plan to muffle the engine and submit such specifications to the Agency for approval. On June 1, 1974, Ferndale retained the firm of Edward D. Newell to design, fabricate and install the necessary equipment and assumed that the work would proceed forthwith.

On August 6, 1974, the complaint in the instant action was filed. Two days later, Ferndale was advised by the Newell Co. that it had halted all operations in the noise control area of its business. Ferndale thereupon retained another firm to complete the requisite work.

On September 6, 1974, the Agency advised Ferndale that it sought a reduction in noise to a point twice the ambient noise level in the area when the engine was not operating. Settlement negotiations were held on September 6, 1974 and September 11, 1974. As a result on these meetings a compliance program was established so as to reduce the level of noise emitted by Ferndale's operations which allegedly unreasonably interfered with lawful activities in the area. This stipulation was presented at the public hearing on this matter held on September 24, 1974 and on the next day was formally submitted to the Pollution Control Board.

Between October 29, 1974 and January 10, 1975 the parties submitted written arguments to the Board. On June 4, 1975, the parties filed an additional stipulation to the effect that as of May 11, 1975, measurements taken in the vicinity of the pumping operation indicated that Ferndale had fully complied with the compliance program. In an opinion dated July 10, 1975, the Board found that Ferndale had committed noise pollution as charged, in violation of Rule 102 and Section 24 of the Act and directed that Ferndale pay a civil penalty in the amount of $500.

Under the terms of the party's agreement, the stipulated testimony of twelve citizen witnesses was introduced for the Board's consideration.

Ronald and Sharon Stander have resided at 844 Holly Way in Palatine, Illinois for approximately 8 years. During the course of their residence the Standers began hearing a noise from the pumping station which was built 9 feet from their property line. The noise is described as a low-pitched sound which develops into a loud, highpitch, whining sound. The noise may be heard at all hours of the day and night both inside and outside their home. During a 24 hour period the noise may be experienced 8 times with a duration of 1 to 2 hours. The Standers described the noise as 'a source of great irritation' which has forced them to shut windows and forego the use of their backyard for relaxation and entertainment and that the sound 'has many times awakened us from sleep at night.'

June Burger and Joyce Brundage moved into a house at 838 Holly Way on April 15, 1974 unaware of any noise from the pumping station. However, on that date they became aware of 'that great source of irritation' and have experienced the noise approximately 6 times in a 24 hour period. They describe the noise emanating from the pumping station as akin to 'ten air conditioners running at the same time'. The noise has awakened them from sleep on occasion and has resulted in their inability to utilize their patio.

Thomas J. Pastrnak also initially noticed the noise after he moved into his home at 832 Holly Way. The noise disturbs him when he is engaged in conversation outside his house. The 'whining and pumping sound' has caused him to go inside and close his windows on several occasions.

Thomas Pierson, of 1937 Long Grove Road, heard a 'raspy, unclear noise' emanating from the pumping station when he occupied his home on April 14, 1974. The noise, characterized as a 'pump-pulsating, throbbing,' occurred constantly during the summer so as to preclude use of his yard for relaxation or entertainment.

Mary Consoer has lived at 807 Gardenia for 5 years, during which time she heard a noise described as 'a lawnmower running all day directly under my window.' She heard the noise every day of the week, 24 hours a day, except for short intervals when 'its off'; has been awakened from sleep at least once a week; has had difficulty in using the telephone; and has been prevented from using her backyard due to the noise.

Raymond Joos occupied a residence at 1937 Long Grove Road from 1970 until April 15, 1974. The pumping station is located approximately 10 feet from his former property line and 40 feet from the former Joos residence. Although Joos was aware of the pumping operations during his residency, he indicated that at no time was he bothered or annoyed by sounds, noise, and vibrations emanating from the well house.

Another former resident of the area, Robert Winstead, occupied a residence at 832 Holly Way from 1970 until August 28, 1973. The pumping station is located approximately 125 feet from the lot's property line and 175 feet from the former Winstead residence. Aware of the pumping operations, Winstead indicated that he was never disturbed by any noise or vibrations during his residency.

Frank Keraly has occupied a residence in the vicinity since 1970. The well house is located approximately 200 feet from his property and 250 feet from his house. Like Joos and Winstead, Keraly was aware of and not disturbed by the pumping operations.

Robert Brown occupied a residence at 838 Holly Way from 1970 until November 1972, at which time Robert Pryun became the occupant. Pryun's tenure lasted until April 16, 1974. This property adjoins the Long Grove Pumping Station and is separated from the well house by 50 feet. Both Brown and Pryun were aware of and unaffected by the pumping operations.

Ray Di Vito, an officer of Ferndale and supervisor of the Long Grove plant also testified and indicated that he attends the pumping station daily; that the operation is an efficient one and has reduced the operating expenses of Ferndale which are ultimately borne by its customers; and that Ferndale possessed sufficient available assets with which to effect the required sound reducing facilities. Di Vito also indicated that his residence is located 850 feet from the plant and that he is unaffected by the operation of the plant. According to Di Vito he is unable to hear the pump operating from immediately outside the station when he is inside a vehicle with the windows closed and, in his opinion, no unreasonable noises or vibrations emanate from the Long Grove Pumping Station.

Before proceeding with our determination of the substantive issue in this proceeding, we must dispose of several disputes regarding the interpretation of Noise Regulations...