RECE
WED
CLERK’S OFFICE
JAN
30
200k
BEFORE THE
ILLINOIS POLLUTION CONTROLB61~4~tE
OF ILLINOIS
Pollution Control Board
BARBARA STUART and RONALD
)
STUART
)
Complainants,
)
)
v.
)
No.
PCB 02-164
)
Citizen Enforcement
)
FRANKLINFISHER and PHYLLIS
)
FISHER
)
)
Respondents,
)
MOTION TO
INCORPORATE
PORTIONS OF IPCB
HEARING TRANCRJIPTS
AN)
DOCUMENTS FROM A PRIOR NOISE COMPLAINT FILED WITH THE
DiVISION OF LAND/NOISE POLLUTION CONTROL
OF ILLINOIS IN 1979
Complainants, Barbara Stuart and Ronald Stuart, herein moves, pursuant to
35
111.
Adm.
Code 101.306, to incorporate the following materials, authentic by virtue ofbeing
verifiable on the IPCB
website, relevant in relation to the methods usedto
measure
sound, when impulse (propane cannon) sounds are considered to be a nuisance,
and
credible in that eachitem has been admitted into
the
record ofeach ofthe cited cases,
and
relied
upon by the board in
the
formulation ofits opinions in each case.
The Illinois EPA issued a case number in
1979,
which was DNPC COMP. #79-121, Should be
verifiable
through the
EPA
archived
records department.
The attachedcopies were
obtained
through th,e Knox County,
Illinois clerks office.
1.
September 26, 2001
Hearing
Transcript- Stephen G. Brill v. Henry Latoria
and
U
Trucking
PCBOO-219
Testimony ofGregoryT. Zak-
Pages
284-290, When Regulation 900.102 is designated as a nuisanceviolation.
Pages
298-312, Functions, capability,
and reliability ofinexpensive
Radio
Shack sound
Meters for measuring sound.
Pages 337-339, Mathematics ofcalculating ambient levels against noise source.
Pages 345-357,
Opinion of
Brian
Homan’s testing methods usedfor noise measurement.
Effects ofnoise on different people in the same location.
2.
October 16,
1979
Copy ofa
certified
letter #157315, from the Illinois
Environmental
Protection Agency, RE:
DNPC Complaint #79-12 1.
Signed by Gregory T.
Zak.
Verifiable through the Ninth Judicial Circuit Court in Knox County, Illinois.
A copy of
this
letter was attached as exhibit A on the following court documents for
SAM
COFFMAN, JR. and DONNA COFFMAN vs. HELEN GEHLUNG, MELVIN
MC CAW,
and
DOANE AG1UCULTURAL SERVICE, INC.
Case NO.79-CH-48
2
a.
COMPLAINT FOR INJUNCTION AND OThER RELIEF
b.
MOTION FOR PRELIMINARY INJUNCTION
Other court documents relatedto this case are attachedto demonstrate the outcome ofthis case.
a.
COMPLAiNT FOR INJUNCTION
b.
DECREE FOR PERMANENT INJUNCTION
c.
Order
d.
Petition to Leaveto Intervene
The purpose of incorporating the Coffman vs. Gehring, McCaw, DoaneAg. Case 79-CH-48 is to
demonstratethe effects of propane cannonnoise on human activities both indoors andoutdoors.
Having Greg Zak testifying as the sound expert in our case will give him an opportunity to
comment on the above case, since he was the field person investigatingthe noise complaint, and
authored the letter to the Defendents in the case.
WHEREFORE,
Complainants, Barbara Stuart and Ronald Stuart moves for an order
incorporating the attachedtranscript excerpts, AND the Illinois EPA letter dated September
27,1979 authored by Greg along with the attached court documents listedabove, into the record
ofthis case for consideration by the Board.
Respectfully submitted,
~7
____________
L__/
Barbara Stuart
Ronald Stuart
Complaints for PCB 02-164
Ronald and Barbara Stuart
213 E. Corning
Rd.
Beecher, Illinois. 60401
708-946-9546
BEFORE TIlE ILLINOIS POLL~JTIC$NCØNTROLBOAR)
BARBARA STUART and
RONALD STUART
FRANKLIN FISHER and
PHYLLIS
FISHER
To:
David Harding
Harding & Lopez
100 N. La Salle St.
Suite 1107
Chicago, illinois 60602
Complainants
Respondents
)
)
)
)
)
)
)
)
BradleyP. Halloran
Suite 11-500
100W.
Randolph
Chicago, illinois 60601
PCB 02-164
(Citizens Enforcement)
Dorothy Gunn
Clerk of the IPC
100W. Randolph
Chicago, illinois
60601
Bobby Petrungarro
Assistant States Attorney Office
Will County States Attorney Court House
14 W. Jefferson Room 200
Joliet, illinois 60432
NOTICE
OF
FILING
PLEASE TAKE NOTICE
that we have, on January 28, 2004, filed with the Office of the Clerk
ofthe Pollution Control Board aMOTION TO
into this
proc~din
cop~9of
whichher with served upon
~
Barbara Stuart
date
213E.CorningRd.
$1
Beecher, Illinois 60401
.
CERTIFICATE OF SERVICE
We, Barbara Stuart and Ronald Stuart, certify that onJanuai~y28, 2004, I
Motion to Incorporate Documents by delivery of U.S. pre-pai~lfirst
Gun~
BradI~y
Hallo~nand David~Harding
at
-
Ad~24~-4~-
‘~7A’
Barbara Stuart’
/
Ronald Stuart
ME this
2?day
_____
NOTARY PUBIC
I
UNO~S
4’~OC5 ~
.~,rr.
. C’.-’
..r
r..’..’
a.fl.-
NOTARY SEAL
THIS FILING IS SUBMITFED ON RECYCLED PAPER
IN
THE
CIRCUIT COURT OF
THE
NINTH JUDICIAL CIRCUIT
KNOX COUNTY,
ILLINOIS
~ULE
SAN
COFFMAN,
JR.
and
DONNA
COFFMAN,
)
iwox co
IL.
Plaintiffs,
)
IN CHANCERY
OCT
1 ~1979
)
vs.
)
NO.
79-CM-
EDW~R,t~
F.
WELCI4
/
ci~4~
~4~e
Circuit
Court
HELEN
S.
GEHRING, MELVIN NcCAW,
and
)
DOANE AGRICULTURAL SERVICE,
INC.,
)
(7
a corporation,
)
)
COMPLAINT FOR INJUNCTION
Defendants.
)
AND
OTHER RELIEF
Plaintiffs, SAN COFFMAN,
JR. and DONNA COFFMAN, by Barash
&
Stoerzbach,
their attorneys, complaining of the defendants, HELEN
S.
GEHRING, MELVIN McCAW,
and DOANE AGRICULTRUAL SERVICE, INC.,
a corporation,
allege:
1.
Ptaintiff, Sam Coffn~n,Jr.,
is
the
owner
in fee simple of the following
described real estate:
The West One—half of the Southwest Quarter of Section
29,
in Township
11 North,
Range
3 East of the Fourth
Principal Meridian, Knox County,
Illinois,
and has been the owner thereof since February 27,
1961.
2.
Plaintiffs are husband and wife and occupy said real estate as their
residence.
3.
Defendant, Helen
S.
Gehring, has the life use of the following described
real estate:
The East One—half
of the Southwest Quarter and
the
West One—half of the Southeast Quarter of Section
29,
in Township
11 North, Range
3 East of the Fourth
Principal Meridian,
Knox
County,
Illinois.
4.
Plaintiffs
are
informed and believe and so
state the fact to be that
defendant, Melvin McCaw,
is in possession of
the real estate described in paragraph
3 as
tenant, and that defendant, Doane Agricultural Service,
Inc.,
manages said real
estate
for and on behalf of defendant,
Helen
S.
Gehring.
5.
Plaintiffs’ residence, which they occupy as such, is approximately
23
rods west of the west fence line of the real estate described in paragraph
3.
6.
Defendant, Melvin McCaw,
became, was and is possessed of gas—fired guns
which he has placed on various parts of the real estate described in paragraph
3.
Commencing on or about August
1,
1979, Melvin NcCaw caused said guns
to be fired
at irregular intervals from
2
to
5 minutes each,
generally beginning at dusk, but
sometimes at 8:00 or 9:00 o’clock p.m., and sometimes at 2:00 or 3:00 o’clock a.in.,
and lasting until dawn,
practically every night since on or about August
1, 1979,
to and including the present time.
7.
Defendants, Helen
S. Gehring and Doane Agricultural Service,
Inc.,
are
aware of defendant NcCaw’s use of
said guns and have acquiesced and approved the
use
thereof.
8.
As
a result of the operation of said guns
the loud noise therefrom has been
carried by prevailing air currents towards, upon and into the residence of the
plaintiffs,
thereby endangering the health and life and offending the senses
of the
plaintiffs,
and preventing them comfortable and reasonable use and enjoyment of
their premises,
contrary to
the provisions of Sections 1023 and 1024,
Chapter 111½,
Illinois Revised Statutes 1977,
and the Rules and Regulations adopted by
the Illinois
Pollution Control Board pursuant
to Section 1025, Chapter 111½,
Illinois Revised
Statutes 1977,
and said conduct of defendants
constitutes a public nuisance in
violation of Chapter l~O½,paragraph 26(8),
Illinois Revised Statutes 1977.
The
plaintiffs by reason of said loud noises have been unable
to occupy
the bedroom
which they customarily occupied and have been compelled to sleep in the basement
of their residence.
9.
On or about September
27,
1979,
Illinois Environmental Protection Agency
notified defendants of their violations by letter mailed
to them on or about said
date,
a copy of which is marked “Exhibit A”, attached hereto and made a part hereof,
reference thereto being had.
Hr~retoforeon or about August
22,
1979,
and on numerous
other occasions, plaintiffs notified defendants of the above described noise and
requested them to discontinue the operation of said guns or to
take such steps
as might be necessary to obviate the detrimental effect thereof,
but defendants
failed and refused and still fail and refuse so
to
do.
10.
By reason of the aforementioned noise,
plaintiffs have suffered extreme
mental anguish and their physical wellbeing has been adversely affected,
all to the
damage of the plaintiffs in a sum in excess of $15,000.00.
11.
Unless restrained and enjoined by this court, defendants
threaten to and
will continue to operate said guns to the great and irreparable damage of plaintiffs~
for which they have no adequate remedy at law.
WHEREFORE, plaintiffs PRAY as follows:
A.
That
a Writ
of
Injunction
may
be issued herein forthwith restraining
defendants,
their officers, agents and employees and all persons acting or claiming
by,
for,
through or under them,
from operating said guns and from committing and
continuing such nuisance pending the final determination of
this case.
B.
That upon the hearing of this case
a Writ of Injunction may be issued
herein permanently abating and enjoining the operation thereof.
C.
That plaintiffs may have and recover judgment herein against defendants
for a sum in excess of $15,000.00.
D.
For such other and further,
or different,
relief herein
as
the court shall
deem equitable.
BARASH & STOERZBACH
Attorneys for plaintiffs
139 South Cherry Street
Galesburg,
Illinois 61401
Telephone:
309 343—4193
SAN COFFMAN, JR.
COFFMAN
-.
.~
~
.
~
~
..
~
.
. -
~no~s
ErMronment&
Protection
Agency
Ph.
796
6392
4500 S. 6th
St.
Springfield,
Ill.
621~
CERTIFIED #157315
September 27, 1979
Mrs. Helen
S.
Gehring
207 South Market Street
Knoxville,
Illinois
61448
RE:
DNPC
COMPLAINT
#79-121
Dear Mrs. Gehring:
It
is my understanding that you own farmland located to
the
east of land owned by Mr. Sam Coffman and that this land
is
currently being leased by
a Mr. Melvin McCaw.
As
the property
owner, you are responsible for j~nyviolations of Illinois
Noise Regulations.
/
This office received a noise\~jomp1aintfrom Mr. Burrel Barash,
an attorney representing Mr.
Coffman, regarding Mr. McCaw
firing propane powered guns from dusk to dawn.
According to
the informat±onin the complaint Mr McCaw
was firing these
guns to
keep coyotes away from his new-born pigs.
A letter was sent
to Mr. McCaw advising him that discharging
these gas powered guns
is probably
in violation of the
Illinois Noise Regulations. Mr. McCaw telephoned me promptly
after receiving my letter.
I arranged to meet with Mr. McCaw
to inspect the gas powered guns and to obtain data with
a
sound level meter to ascertain whether
or not
a violation
exists.
I met with Mr. McCaw on the morning of September 25,
1979.
He was cooperative and demonstrated both of his propane
guns;
a “Thunderbird Scare-away” and
a “ZON”.
The sound
levels thirty
(30) feet
to the rear of the “Thunderbird.
.
.“
were 105
and 106 dB(A)
for two measured explosions.
Mr. McCaw
fired his twelve(12)gauge shotgun for comparison and
it
registered
100 dB(A).
The other
gas powered gun
(ZON) was
mounted
in
a small wagon and registered 105 dB(A)
thirty
(30)
feet to the side
of it.
The “ZON” registere
at Mr. McCaw’s residence.
OCT16
1979
ED~Rp?F. WELCH
Page
2
DNPC COMP.
#79-121
Gehring/GTZ
I asked Mr. McCaw
to continue operating the noise generating
guns while
I
obtained sound level readings
at
the Coffman
residence
as our regulations are written in terms
of the
amount of noise received at
the complainant’s property.
Mr. McCaw complied and
I obtained the following readings in
Mr. Coffman’s front yard:
53,56,57,56,57,57,60,58, and
59 dB(A)
The allowable limits under “Rule ~6: I~uI~i~~6~und” (see
enclosed copy of Regulations, p.8)
are;
56 dB(A)
during the
day
(7
a.m. to
10 p.m.)
and 46 dB(A)
during the night
(10 p.m.
to
7 a.m.).
Those readings
in violation of the daytime
limits
are underlined.
All of the readings exceed the nighttime limits.
Mr. McCaw stated that,unlike many hog farmers in the area,
he
can not afford to confine his pigs
to protect them from coyote
predati~onand that the use of the gas fired guns are reducing
his pig losses.
While
the Agency can understand Mr. McCaw’s problem, we can-
not allow him
to violate State Regulations.
Mr. McCaw will
have
to find another solution to his coyote problem.
According to Mr Coffman, hogs have been raised on your
property for twenty years without the need for firing gas
guns
to protect the pigs.
Since
the hunting and trapping
season on coyotes has been extended
to year around and pig
confinement
is an alternative,
I feel that Mr. McCaw does
not have
a good case for using
the gas fired guns all night
long every night.
It
is the position of the Agency that the use of the gas
fired guns on your property must cease unless the sound
levels can be reduced to
46
dB(A)
or lower,
at
the complainant’s
property
(Mr. Coffman) ,at night.
Failure
to comply will
leave the Agency no choice other than
to turn this matter
over
to the Attorney General’s Office for
a hearing before
the Illinois Pollution Control Board.
Violations carry
penalties of up
to $10,000.00 and up
to $1,000.00 for each
day the violation continues
(see TITLE XII:
PENALTIES,
SECTION 42,a., p.14 of the enclosed Environmental Protection
Act).
Page
3
DNPC COMP.
#79-121
Gehring/GTZ
Please respond within
15 days of the date on this letter.
Sincerely,
~
Gregory
T.
Za
Central/Southern Region Manager
Noise Field Operations Section
Division of Land/Noise. Pollution Control
GTZ:bss
CC:
~r. Jim Reid
Mr.
Sam Coffman
~Mr. Burrel Barash
Mr. Melvin McCaw
Manager,
Doane Agricultural Services,
Inc.
Complaint File #79-121
--
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
KNOX COUNTY,
ILLINOIS
vs.
_______________
HELEN
S. GEHRING, MELVIN McCAW,
and
DOANE AGRICULTURAL SERVICE,
INC.,
a corporation,
Defendants
___________________________________
Now come SAN COFFMAN,
JR. and DONNA COFFMAN, plaintiffs in the above
entitled case,
by Barash
&
Stoerzbach, their attorneys, and
MOVE this
court
to
enter a preliminary injunction restraining and enjoining the defendants,
HELEN
S.
GEHRING, MELVIN NcCAW
and
DOANE AGRICULTRUAL SERVICE,
INC.,
their officers,
agents and employees and all persons acting or claiming by, for,
through
or under
them,
from operating certain gas—fired guns located on the following described
real estate:
The
East
One—half of the Southwest Quarter and the West
One—half of the Southeast Quarter of Section 29,
in
Township 11 North,
Range
3 East
of the Fourth Principal
Meridiar~.,Knox County,
Illinois,
until the further order of this court.
In
support of this motion a copy
of the
verified Complaint is attached hereto and made a part hereof.
~
U
KNOX
CO.
IL.
OCT 16 1979
/
EC~WA1~D1F.
WELCH.
102
ci~p~g~’e
Circuit
Court
Deputy
SAN COFFMAN,
JR. and DONNA COFFMAN,
Plaintiffs
)
)
)
IN CHANCERY
)
)
NO.
79—CH—
)
)
)
)
)
)
MOTION FOR PRELIMINARY INJUNCTION
BARASH
& STOERZBACH
Attorneys
for plaintiffs
139 South Cherry Street
Galesburg,
Illinois
61401
Telephone:
309
343—4193
1~’
IN THE CIRCUIT
COURT
OF
THE
NINTH JUDICIAL CIRCUIT
KNOX COUNTY,
ILLINOIS
SAN COFFMAN,
JR. and DONNA COFFMAN,
)
)
Plaintiffs,
)
IN CHANCERY
)
vs.
)
NO.
79—CH—
)
BELEN S.
CEHRING, MELVIN NcCAW, and
)
DUANE
AGRICULTURAL
SERVICE,
INC.,
)
a
corporation,
)
)
COMPLAINT FOR INJUNCTION
Defendants.
)
AND OTHER RELIEF
Plaintiffs,
SAN COFFMAN,
JR. and DONNA COFFNAN, by Barash
& Stoerzbach,
their attorneys, complaining of the defendants,
HELEN
S.
GEHRING, MELVIN McCAW,
and DUANE AGRICULTRUAL SERVICE, INC.,
a corporation,
allege:
1.
P1~intiff, Sam Coffuan,
Jr.,
is
the owner in fee simple of the following
described real estate:
The West One—half of
the Southwest Quarter of Section
29,
in Township 11 North,
Range 3 East of the Fourth
Principal Meridian, Knox County,
Illinois,
and has been the owner thereof since February 27, 1961.
2.
Plaintiffs are husband and wife and occupy said real estate as their
residence.
3.
Defendant, Helen
S.
Gehring,
has the life use of the following described
real estate:
The East One—half of the Southwest Quarter and
the
West One—half of
the Southeast Quarter
of Section
29,
in Township
11 North,
Range
3 East of the Fourth
Principal Meridian, Knox County,
Illinois.
4.
Plaintiffs are informed and believe and so state the fact
to be that
defendant,
Melvin McCaw,
is in possession of the real estate described in paragraph
3 as tenant, and that defendant,
Doane Agricultural Service,
Inc., manages said real
estate
for and on behalf of defendant, Helen
S.
Gehring.
5.
Plaintiffs’
residence, which they occupy as such,
is approximately 23
rods west
of the west fence line of the real estate described in
paragraph
3.
6.
Defendant, Melvin McCaw,
became, was and is possessed of gas—fired guns
which he has placed on various parts
of the real estate described in paragraph
3.
Commencing on or about August
1,
1979, Melvin NcCaw caused said guns
to be fired
at irregular intervals from
2
to
5 minutes each,
generally beginning
at dusk,
but
sometimes at 8:00 or 9:00 o’clock p.m.,
and sometimes at 2:00 or 3:00 o’clock a.m.,
and lasting until dawn,
practically every night since on or about August
1,
1979,
to and including the present time.
7.
Defendants, Helen
S. Gehring and Doane Agricultural Service,
Inc., are
aware of defendant McCaw’s use of said guns and have acquiesced and approved the
use thereof.
8.
As
a result of the operation of said guns the loud noise therefrom has been
carried by prevailing air currents towards, upon and into the residence of
the
plaintiffs,
thereby endangering the health and life and offending the senses of the
plaintiffs, and preventing them comfortable and reasonable use and enjoyment of
their premises,
contrary to
the provisions of Sections 1023 and 1024,
Chapter 111½,
Illinois Revised Statutes 1977,
and the Rules and Regulations adopted by the Illinois
Pollution Control Board pursuant
to Section 1025,
Chapter 111½,
Illinois
Revised
Statutes 1977,
and said conduct of defendants constitutes
a public nuisance in
violation of Chapter l~O½,paragraph 26(8),
Illinois Revised Statutes 1977.
The
plaintiffs by reason of said loud noises have been unable
to occupy
the bedroom
which they customarily occupied and have been compelled to sleep in the basement
of their residence.
9.
On or
about
September 27,
1979,
Illinois Environmental Protection Agency
notified defendants of their violations by letter mailed to them on or about said
date,
a copy of which is marked “Exhibit A”, attached hereto and made apart hereof,
reference thereto being had.
Heretofore on or about August
22,
1979,
and on numerous
other occasions, plaintiffs notified defendants of the above described noise and
requested them to discontinue the operation of said guns or
to take such steps
as might be necessary to obviate the detrimental effect thereof, but defendants
failed and refused and still fail and refuse so to do.
10.
By reason of theaforementioned noise, plaintiffs have suffered extreme
mental anguish and their physical wellbeing has been adversely affected, all to the
damage of
the plaintiffs in a sum in excess of $15,000.00.
11.
Unless restrained and enjoined by this court, defendants threaten to and
will continue to operate said guns to the great and irreparable damage of plaintiffs,
for which they have no adequate remedy at
law.
WHEREFORE,
plaintiffs
PRAY
as
follows:
A.
That a Writ of
Injunction
may
be
issued
herein
forthwith
restraining
defendants, their officers, agents and employees and all persons acting or claiming
by,
for, through or under them,
from operating said guns and from committing and
continuing such nuisance pending the final determination of this case.
B.
That upon the hearing of this case a Writ of Injunction may be issued
herein permanently abating and enjoining the operation thereof.
C.
That plaintiffs may have and recover judgment herein against defendants
for
a sum in excess of $15,000.00.
D.
For such other and
further, or different, relief herein
as the court shall
deem equitable.
BARASH
&
STOERZBACH
Attorneys for plaintiffs
139 South Cherry Street
Galesburg,
Illinois
61401
Telephone:
309 343—4193
SAN COFFMAN, JR.
COFFNAN
STATE
OF
ILLINOIS
)
COUNTY
OF KNOX
)
SS.
)
SAN COFFMAN,
JR., and DONNA COFFMAN,
being duly sworn, say that they are
the plaintiffs
in the above entitled Complaint;
that they have read the said Cor~laint
and
know
the
contents
thereof;
and
that
the
same
are
true
to
their
own
knowledge,
except as
to the matters therein stated on information and belief, and as
to those
matters they believe them to be true.
L
_
~Q/~2~1
~
Signed and sworn to before me
this
16th
day
of
October,
1979.
-
~
~.
~
Notary Public
REQUEST FOR SUMMONS
The Clerk willissue summons
to the Sheriff of Knox County for service
upon the defendants,
as follows:
Helen S. Gehring
207 South Market Street
Knoxville,
Illinois
Melvin NcCaw
Rural Route
2
Gilson, Illinois
Doane Agricultural Services,
Inc.
Bondi Building
Galesburg,
Illinois
LI
KNOX
CO.
11.
UCIJ.
61979
EDW,.ARWF.
WELCH
ft~2
i~’o~1~e
Circuit
Court
I-
~
~
7~
~
Env
ironmental
.
Protection
Agency
Ph.
7866892
Mrs.
Helen
S.
Gehring
207 South Market Street
Knoxville,
Illinois
61448
RE:
DNPC COMPLAINT
#79-121
Dear Mrs. Gehring:
It
is my understanding that you own farmland located to
the
east of land owned by Mr.
Sam Coffman and that this land
is
currently being leased by
a Mr. Melvin McCaw.
As the property
owner,
you are responsible for/any violations of Illinois
Noise
Regulations.
/
This office received a noise\(~omplaintfrom Mr. Burrel Barash,
an attorney representing Mr. Coffman, regarding Mr. McCaw
firing propane powered guns from dusk to dawn.
According to
the information
in the complaint Mr McCaw
was firing these
guns
to keep coyotes away from his new-born pigs.
A letter was sent
to Mr. McCaw advising him that discharging
these
gas powered guns is probably in violation of the
Illinois Noise Regulations.
Mr. McCaw telephoned me promptly
after
receiving my letter.
I arranged
to meet with Mr. McCaw
to inspect the gas powered guns and to obtain data with
a
sound level meter to ascertain whether or not
a violation
exists.
I met with Mr. McCaw on the morning of September 25,
1979.
He was cooperative and demonstrated both of his propane
guns;
a “Thunderbird Scare-away” and a “ZON”.
The
sound
levels
thirty
(30) feet
to the rear of the “Thunderbird.
.
were 105 and 106 dB(A)
for two measured explosions.
Mr. McCaw
fired his twelve(l2)gauge shotgun for comparison and it
registered
100 dB(A).
The other gas powered gun
(ZON) was
mounted
in
a small wagon and registered 105 dB(A)
thirty
(30)
feet to the side of it.
The “ZON” registered
7
B(A)
at Mr. McCaw’s residence.
Ii
KNOX
CO.
IL.
OCT1 61979
EXHIBIT
A
EDW
R
F.
WELCH
CERTIFIED
#157315
September
27,
1979
4500
S.
6th
St.
Springfield,
Ill. 62
Page
2
DNPC COMP.
#79-121
Gehring/GTZ
I asked Mr. McCaw to continue operating the noise generating
guns while
I obtained sound level readings at the Coffman
residence as our regulations are written in terms
of the
amount
of noise received at the complainant’s property.
Mr. McCaw complied and
I obtained the following readings in
Mr. Coffman’s front yard:
53,56,57,56,57,57,60,58, and
S9dB(A).
The allowable
limits
under
“Rule 206: I~uT~i~~und”
(see
enclosed
copy of Regulations,
p.8)
are;
56
dB(A)
during
the
day
(7
a.m.
to
10 p.m.) and 46 dB(A)
during the night
(10 p.m.
to
7 a.m.).
Those readings
in violation of the daytime limits
are underlined.
All of the readings exceed the nighttime limits.
Mr. McCaw stated that,unlike many hog farmers in the area, he
can not ~afford to
confine his pigs
to protect them from coyote
predatio~nand that the use of the gas fired guns are reducing
his pig losses.
While
the Agency can understand Mr. McCaw’s problem, we can-
not allow him
to violate State Regulations.
Mr. McCaw will
have to find another solution
to his coyote problem.
According to Mr Coffman,
hogs have been raised on your
property for twenty years without the need for firing gas
guns
to protect the pigs.
Since the hunting and trapping
season on coyotes has been extended to year around and pig
confinement
is an alternative,
I feel that Mr. McCaw does
not have
a good case for using
the gas fired guns all night
long every night.
It
is the position of the Agency that the use
of the gas
fired guns
on your property must cease unless
the sound
levels can be reduced to
46 dB(A)
or lower,
at the complainant’s
property
(Mr. Coffman),at night.
Failure to comply will
leave the Agency no choice other than to turn this matter
over to the Attorney General’s Office for a hearing before
the Illinois Pollution Control Board.
Violations carry
penalties
of up
to $10,000.00
and up
to $1,000.00
for
each
day the violation continues
(see TITLE XII:
PENALTIES,
SECTION 42,a., p.14 of the enclosed Environmental Protection
Act).
IN
THE
CIRCUIT
COURT
OF
THE NINTH
JUDICIAL
CIRCUIT
KNOX
COUNTY,
ILLINOIS
SAM
COFFMAN,
JR.
and
DONNA
COFFMAN,
)
)
IN
CHANCERY
Plaintiffs
)
)
NO.
79—CH—48
vs.
)
)
HELEN
S.
GEHRING, MELVIN McCAW,
)
and
DOANE
AGRICULTURAL
SERVICE,
)
INC.,
a corporation,
)
)
Defendants
)
DECREE
FOR
PERMANENT
INJUNCTION
This case coining on
to be heard upon stipulation of the plaintiffs by
Barash,
Stoerzbach
&
Henson,
their
attorneys,
and
the
defendants,
Helen
S.
Gehring
and Melvin McCaw, by McLaughlin,
Flattery, Simpson & Sullivan,
their attorneys,
and
pursuant
to said stipulation,
the Court FINDS:
1.
This
court
has
jurisdiction
of
the
subject
matter
of
this
suit
and
over
all the parties hereto.
2.
Defendant, Melvin McCaw,
became, was and is possessed of gas—fired guns
which
he
has
placed
on
various
parts
of
the
real
estate
described
in
paragraph
3
of
the
Complaint
herein.
Commencing
on
or
about
August
1,
1979,
Melvin
McCaw
caused
said
guns
to
be
fired
at
irregular
intervals
from
2
to
5
minutes
each,
genera3~ybeginning at dusk,
but sometimes at 8:00 or 9:00 o’clock p.m., and
sometimes at 2:00 or 3:00 o’clock a.m.,
and lasting until dawn, practically every
night since on or about August
1,
1979.
3.
Defendant,
Helen
S.
Gehring,
is
aware
of
defendant
McCaw’s
use
of
said
guns and has
acquiesed
and
approved
the
use
thereof.
4.
Doane
Agricultural
Service,
Inc. is no longer managing said real estate
described in paragraph 3 of the Complaint herein and should be dismissed.
—1—
5.
As
a result of the opera~ionof said guns,
the loud noise therefrom has
been carried by prevailing air currents towards, upon and into the residence of
the plaintiffs,
thereby endangering the health and life and offending the senses
of the plaintiffs and preventing them from comfortable and reasonable use and
enjoyment of their premises,
and constitutes a public nuisance in violation of
Chap.
100—1/2,
par. 26(8),
Ill. Rev. Stat.,
1979.
Plaintiffs by reason of said
loud noises have been unable to occupy the bedroom which they customarily occupied
and have been compelled to sleep in the basement of their residence,
and have on
occasion been compelled to leave their home for periods of time to s~ekrelief
from the noise.
6.
A
permanent
injunction
should
be
issued,
subject,
however,
to
the
right
of
defendants,
in
cooperation
with
the
Illinois
Environmental
Protection
Agency,
to
operate
said
guns
between
the
hours
of
12:00
o’clock
Noon
and
2:00
o’clock
p.m.
on
an
experimental
basis
in
order
to
determine
whether
or
not
they
could
be
fired with a noise factor
which
will
not
interfere
with
the
comfortable
and
reason-
able use and enjoyment by plaintiffs of their premises.
IT IS, THEREFORE, ORDERED, ADJUDGED
and
DECREED,
as
follows:
1.
Defendant,
Doane
Agricultural
Services,
Inc.,
a
corporation,
is
hereby
dismissed
as
a
party
defendant.
2~’Defendants,
Helen
S.
Gehring
and
Melvin
McCaw,
their
agents
and
employees
and
all
persons
acting
or
claiming
by,
for,
through
or
under
them,
or
in
any
manner
in
privity
with
them,
are
permanently
enjoined
and
restrained
from
operating
said
guns
at
any
time;
subject,
however,
to
the
operation
thereof,
in
cooperation
with
the Illinois Environmental Protection Agency, between the hours of 12:00 o’clock
Noon
and
2:00
o’clock
p.m.
on
an
experimental
basis
in
order
to
determine
whether
or
not
they
can
be
fired
with
a
noise
factor
which
will
not
interfere
with
the
comfortable
and
reasonable
use by plaintiffs
of their premises.
—2—
•
.
3.
If
the
experiment
described
in
paragraph
2
hereof
is
performed,
the
parties
shall
be
permitted
to
present
the
results
of
said
experiment
to
this
court
and
the
court
hereby
reserves
jurisdiction
for
such
purpose.
Dated: February
_____,
1982.
IflLE
LI
CO. II..
FEB
-81982
~
EDWARfl?F.
WELCH
/
,
circuit
Court
Deputy
—3—
STATE
OF
ILLINOIS
IN
THE CIRCUIT
COURT
OF
THE NINTH JUDICIAL
CIRCUIT
KNOX COUNTY
PEOPLE
OF
THE STATE
OF ILLINOIS
)
)
Plaintiff,
)
)
IN CHANCERY
-vs--
)
)
No.
79—CH—48
HELEN
S.
GEHRING,
MELVIN
McCAW,
)
and DOANE AGRICULTURAL
SERVICE,
)
INC.,
a
corporation,
)
)
Defendants.
)
COMPLAINT
FOR INJUNCTION
NOW COME
the
People
of
the
State
of Illinois
by
William
J.
Scott,
Attorney
General
of
the
State
of
Illinois,
and complaining
of Helen
S.
Gehring,
Melvin McCaw
and
Doane Agricultural
Service,
Inc.
allege:
1.
This action ~s brought pursuant
to the
terms
and provisions
of Section
42
of
the Environmental
Protection
Act,
(hereinafter referred
to
as
the “Act”),
Ill.
Rev.
Stat.
1977,
ch.
111
1/2,
par.
10421
authorizing
the Attorney
General
to bring
civil actions
to
restrain violations
of
the Act
and
to recover penalties
for violations
of
the
Act
or
any regulations
adopted
by
the Illinois
Pollution
Control
Board
(hereinafter
referred
to
as
the
“Board”).
2.
This
action
is
being brought
at
the request
of
the Illinois
Environmental
Protection Agency
(hereinafter
referred
to
as
the
“Agency”).
3.
Defendant,
Helen
S.
Gehring, has
the life
use
of
the following
described
real estate:
The
East One—half
of
the Southwest
Quarter and the West One—half
of
the
Southeast Quarter
of Section
29,
in
Township
11 North,
Range
3
East
of
the
Fourth
Principal Meridian,
Knox
County,
Illinois.
(Hereinafter,
the
“Defendant
fl
fl
Fr’
property”).
LI
IL
I,
KNOX
CO.
IL.
JAN -91980
EDW
RI~ F.
WELCH
4.
Plaintiff
is
informed
and
believes
and
so
states
the
fact
to
be
that Defendant,
Melvin McCaw,
is
in
possession
of
the Defendants’
property
as
tenant,
and
that
Defendant,
Doane
Agricultural Service,
Inc.,
manages
the
Defendants’
property for and
on behalf
of Defendant,
Helen
S.
Gehring.
5.
Defendant,
Melvin
McCaw,
became,
was
and
is
possessed
of
gas—fired
guns
which
he
has
placed
on
various
parts
of Defendants’
property
(hereinafter,
said “gas—fired
guns”).
Commencing
on
or
about
August
1,
1979,
Defendant,
Melvin
McCaw,
caused
said gas—fired
guns
to
be
fired
at
irregular intervals
from
2
to
5 minutes
each,
generally
beginning
at
dusk,
but
sometimes
at
8:00
or
9:00
o’clock
p.m.,
and sometimes
at
2:00
or
3:00
o’clock
a.m.,
and
lasting until
dawn,
practically every night
from on or about
August
1,
1979,
to the entry of
a preliminary injunction
in
this
case pursuant
to
the Complaint
and Motion
of
Sa~n Coffman,
Jr.
and Donna Coffman
on
or about
October
29,
1979.
6.
Defendants,
Helen
S.
Gehring
and Doane
Agricultural
Service,
Inc.,
are
and were aware of Defendant
McCaw’s use
of said
gas—fired guns and have acquiesced
and
approved
the
use
thereof.
7.
Noise
is
caused
and
emitted
beyond
the
boundaries
of
the Defendants’
property
by said gas—fired
guns when
they
are
fired,
which
noise
is
received
on
the
property
of
Sam and Donna
Coffman,
husband
and wife,
whose
property
is described
as:
The West
One—half
of
the
Southwest
Quarter of
Section
29,
in Township
11
North,
Range
3
East
of
the Fourth
Principal Meridian,
Knox County,
Illinois.
(Hereinafter
the
“Coffmans’
property”).
8.
Sam and Donna Coffman have occupied
at all
times relevant
to this
Complaint,
and continue to occupy,
a
portion
of
the
Coffmans’
property
as
their
residence.
—~9.
Section
24
of
the
Act provides:
“No person
shall
emit
beyond
the
boundaries
of
his property
any
noise
that
unreasonably
interferes
with
the enjoy-
ment
of
life
or with
any lawful
business
activity,
so
as
to violate
any regulation
or
standard
adopted
by
the
Board under
this
Act.”
Ill.
Rev.
Stat.
1977,
ch.
111
1/2,
par.
1024.
10.
Pursuant
to
Sections
5(b)
and
25
of
the
Act,
the
Board
adopted
Rule
206
of Chapter
8:
Noise
Regulations
(hereinafter
referred
to
as
“Noise
Regulations”),
which
became
effective
on
July
31,
1973,
which
provides:
f~’Rule 206:
IMPULSIVE
SOUND
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,
B
or
C
land which exceeds
the allowable
dB(A)
sound
level
specified
on Table
5, when
measured
at
any point within
such receiving
Class
A,
B or
C land,
provided,
however,
that
no measurement
of
sound levels shall
be
made
less
than
25
feet
from
the property—
line—noise—source.
TABLE
5
Allowable
dB(A)
Sounds
Levels
Classification
of Land
of Impulsive Sound Emitted
to
on which Property—Line—
Designated Classes
of Receiving
Noise—Source
is
located
Land
___________________________
Class
C Land
Class
B
Land
Class
A Land
Daytime Nighttime
Class
A Land
57
50
50
45
Class
B Land
57
57
50
45
Class
C
Land
65
61
56
46
Emphasis
added
11.
That
portion
of
the
Coffmans’
property
which
is
and
has
been
occupied
by
the Coffmans
as
their
residence
is
“Class
A land”,
as
that
term
is defined
by Noise
Regulation
201(a)
for purposes of Noise Regulation
206.
12.
The portion
of Defendants’
property
on which
said gas—fired
guns
are located
is “Class
C landlt,
as
that
term
is defined
by Noise Regulation 201(c)
for purposes of
Noise
Regulation
206.
3.
WHEREFORE,
Plaintiff prays
as
follows:
A.
That
a Writ
of Injunction may
be
issued
herein forthwith restraining Defendants,
their officers,
agents
and employees
and all persons acting
or claiming by,
for,
through
or under
them,
from operating
said
guns and
from
committing
and
continuing
such
violations
of
the
Noise
Regulations and the Act pending
the final
determination of
this case;
B.
That,
upon
the hearing
of
this
case,
a Writ
of Injunction
may
be issued
herein
permanently
abating
and
enjoining
the operation
thereof
in violation
of
the Noise
Regulations
and
the
Act;
C.
That
this
Court,
after hearing
herein,
enter
an order
against
the Defendants,
that
they
pay
a penalty
of
up
to
Ten Thousand
Dollars
($10,000)
for
the violations
alleged,
plus
an additional penalty of
up
to
One Thousand
Dollars
($1,000)
for each day the violations
have continued;
D.
That
this Court
tax
or assess all costs
of
this
proceeding against
the Defendants;
and
E.
That
this Court
issue
and enter such additional
final
order,
or make such additional
final
determination as
it
shall deem appropriate under
the circumstances.
Respectfully
submitted,
PEOPLE
OF THE
STATE
OF
ILLINOIS
WILLIAM
.3.
SCOTT
ATTORNEY
GENERAL
OF
ILLINOIS
BY_______
ANN
L.
CARR
Assistant
Attorney
General
Environmental
Control Division
Southern Region
500 South Second Street
Springfield,
Illinois
62706
217/782—9031
DATED:
January
9,
1980
I
Plaintiff,
)
)
IN CHANCERY
-vs-
).
)
No.
79—CH—48
HELEN
S.
GEHRING,
MELVIN McCAW,
)
and
DOANE
AGRICULTURAL
SERVICE,
)
INC.,
a
corporation,
)
)
Defendants.
)
PETITION FOR LEAVE TO
INTERVENE
Pursuant
to Section
26.1 of
the Civil Practice
Act,
Ill.
Rev.
Stat.
1977,
ch.
110,
par.
26.1,
the People
of
the
State of Illinois,
by William J.
Scott, Attorney General
of the State
of Illinois,
petition for leave
to intervene as
a matter
of
right
and,
alternatively
petition
for
leave
to
intervene
in the discretion of
the Court.
In support whereof
they
state
as
follows:
1.
The
Complaint
filed
in
this
case
on
October
16,
1979
charges
the
Defendants
with
violations
of
the
Environmental Protection Act,
Ill.
Rev.
Stat.
1977,
ch.
111
1/2,
pars.
1000,
et seq.,
and with violations
of the nuisance
statute,
Ill.
Rev.
Stat.
1977,
ch.
100
1/2,
par.
26(8).
2.
After
a
hearing
at
which
an
employee
of
the
Illinois
Environmental
Protection
Agency
testified,
a
Preliminary Injunction was entered
on October
29,
1979 which
found
that
the
Defendants
had
created
a
public
nuisance
by
the operation
of certain
gas—fired
guns
in violation
of
Chapter
100
1/2,
par.
26(8)
and
which,
therefore,
enjoined
them from further operating
the guns.
in the
case,
the
Coffmans,
have
no standing
to
sue
for
violations
of
the Environmental
Protection
Act
and that
this
action
should
somehow
or
is
somehow
being
brought
by
the
State
before
the
Illinois
Pollution
Control
Board
for
violations
of
the
Illinois
Environmental
Protection
Act.
4.
The People,
by
the Attorney
General,
have
specific
statutory
authority
to
sue initially
in Circuit
Court
for violations
of
the Act.
Ill.
Rev.
Stat.
1977,
ch.
111
1/2,
par.
42(d),
People
ex
rel
Scott
v.
Janson,
57
Ill.
2d
451,
312
N.E.2d
620,
rehearing
denied
(1974).
5.
No other action
by
the
State
is
now
pending
before any court
or administrative body for the violations
of
the Illinois
Environmental
Protection
Act
and
its regulations
which
are
charged
in
the
Coffmans’
complaint
or
in
the
proposed
Intervenor’s
Complaint.
6.
This application
is
timely.
It will not
unduly
delay
or prejudice
the adjudication
of
the
rights
of
the original parties.
INTERVENTION
AS A MATTER OF RIGHT
7.
The applicant’s
interest
in
this matter
is
that
the
Environmental
Protection
Act
be
enforced
and
a
penalty collected
so as
to
solve this particular problem and
so
as
to
serve
as
a
deterrent
to
future
violations
of
the
Act.
The public
interest
is
or may
be
inadequately
repre-
sented by
the Coffmans
in that
a question has been raised
concerning
their
standing
to
enforce the Environmental
Protection Act and collect penalties
for its violation.
have
been
used
to
aid
in
detining
and
demonstrating
wtiat
is
a violation
of
the
public nuisance
statute.
Any
findings
on
the
credibility
of
the
State’s
employees
or
the
validity
of
the
State’s
tests
may
be
binding
on
the
State.
INTERVENTION
IN THE DISCRETION
OF THE
COURT
1.
The
claims
of
the
Plaintiffs
and
the
Intervenor
are very
similar,
having many
questions
of
law and
fact
in
common,
e.g.
what
regulatory
standard
applies,
whether
the
Defendants
are
the cause
of
the noise
in question,
the
volume
and nature
of
the noise
in
question,
the
effect
of
the noise
in
question,
and
the
remedy
for
the violations.
2.
To litigate
this
case
twice,
once
for nuisance
and once for
related
statutory
and
regulatory
vio1atio~ns,
would
require
a
large
and unnecessary
duplication
of effort
by
the Plaintiffs,
the Defendants
and
the judiciary/administrative
bodies
and may
result
in conflicting
orders.
A complete
adjudication
of
the Defendants’
liability
for
its
acts
charged
in
the
Coffmans’
Complaint
may not
occur unless
the
People
are allowed
to
intervene.
If
intervention
is allowed,
the entire action
can
be resolved
in one
lawsuit.
3.
Any interpretations
by this
Court
of
the
Environmental
Protection
Act
or
the Board’s
regulations
affects
the public
interest.
Because
these
questions
are
within
the
scope of
the Coffmans’
Complaint,
the
State
should be allowed
to
intervene.
Petitioner,
therefore,
prays
that,
on
the
hearing
of
this
petition,
it may
be granted
the following
relief:
(b)
That pétitioner may have such other and
further relief
as
the nature
of
this
case may
require.
PEOPLE
OF
THE STATE
OF
ILLINOIS,
Petitioner.
BY:
WILLIAM
J.
SCOTT
ATTORNEY
GENERAL
OF ILLINOIS
n
BY:
~
~—.
~
Ann
L.
Carr
Assistant
Attorney
General
Environmental
Control
Division
Southern Region
500
South Second
Street
Springfield,
Illinois
62706
217/782—9031
DATED:
January
9,
1980
~
~
IL.
JAN
-91980
ED~ARThF.
WELCH
y$~k,~the
Circ~ItCourt
(3//~.’( ~
D~uty
VERIFICATION
I,
ANN
L.
CARR,
being
first
duly sworn upon
my
oath,
do
state:
1.
That
I
am
the Assistant
Attorney
General
assigned
to
prepare
the Environmental
Protection
Agency’s
case.
2.
That
I have prepared
and signed
the foregoing
Petition
and
that
its contents
are
true
and correct.
FURTHER
AFFIANT
SAYETH NOT.
~
ANNL.
CARR
Assistant
Attorney
Gener~l
Subscribed
and
sworn
to before
me
this
5~
day
of
January,
1980.
-
~
.A
~
Notary
Public
KNOX
CO.
IL..
U
JAN91980
EDW,AR
‘IF.
WELCH
IN
THE
CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
KNOX COUNTY,
ILLINOIS
SAN COFFMAN,
JR.
and DONNA COFFMAN,
)
)
Plaintiffs
)
)
vs.
HELEN
S.
GEHRING,
MELVIN
McCAW,
and
DUANE AGRICULTURAL
SERVICE,
INC.,
a corporation,
)
)
)
)
)
Defendants
)
IN
CHANCERY
NO.
79—CH—48
ORDER
This case coming on
to be heard upon motions
to dismiss by Helen
S.
Gehring,
Melvin
NcCaw
and
Doane Agricultural Service,
Inc.,
and
the oral motion of plaintiffs
to withdraw paragraph 10 of the Complaint and paragraph C of the prayer
for relief;
and the court having heard argument of counsel and being fully advised in the premises;
IT IS ORDERED that said motions
to dismiss
be,
and the same are,
hereby
IT IS FURTHER ORDERED that defendants plead
to said Complaint within 14
days
from
the
date
hereof.
IT
IS
FURTHER
ORDERED
that
plaintiffs’
motion to withdraw paragraph 10
of
the Complaint and paragraph C of
the prayer
for relief be,
and
the same is,
hereby
allowed,
and said paragraph 10 of the Complaint and paragraph C of
the prayer
for
relief are hereby dismissed.
Dated:
January 11,
1980.
LE
KNOX
CO.
IL.
JAN
11
1980
~
EDW~R,Ø7F. WELCI4
CI~’
9~’$~
Circuit
Court
....
denied.
STATE
OF ILLINOIS
IN THE CIRCUIT
COURT
OF THE NINTH JUDICIAL
CIRCUIT
KNOX COUNTY
PEOPLE
OF
THE STATE
OF ILLINOIS
)
)
Plaintiff,
)
)
IN CHANCERY
-vs-
)
)
No.
79—CH—48
HELEN
S.
GEHRING,
MELVIN McCAW,
)
and DUANE AGRICULTURAL
SERVICE,
)
INC.,
a
corporation,
)
)
Defendants.
)
ORDER
This cause
coming
on
to
be heard
on petition
of
the
People
of
the
State
of
Illinois,
for
leave
to intervene
as
a Plaintiff
in
said
cause,
and
it appearing
to
the
Court
that due and
timely notice
of
the hearing
on said petition
has
been given,
and
the court
being
fully
advised
in
the
premises:
IT
IS ORDERED
THAT
the People
of
the State
of
Illinois
be
and hereby
are
granted leave
to
intervene
in
said cause
as
a Plaintiff
therein;
and that
said
inter—
venor
be and
is hereby granted
leave
to file
its Complaint
instan
t
r.
_____
EN TE~
JUD
E
DATED:
~
/t~
//y~~
U
KNoX
CO.
IL.
JAN11
1980
1
1
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
2
3
STEPHEN G. BRILL,
4
5
Complainant,
6
7
vs
)
No.
PCB 00—219
8
9
HENRY
LATORIA,
individually and
10
d/b/a TL TRUCKING FOODLINER.
11
12
Respondent.
)
VOLUME
I
13
14
15
The following is a transcript of the
16
above—entitled cause before HEARING OFFICER BRADLEY
17
P.
H.ALLORAN
and stenographically taken before
18
TERRY A.
STRONER,
CSR,
a notary public within and
19
for the County of Cook and State of Illinois,
at
20
Suite 11—512,
100 West Randolph Street, Chicago,
21
Illinois, on the 26th day of September,
A.D.,
2001,
22
commencing at 9:00 o’clock a.m.
23
24
L.A.
REPORTING
(312)
419—9292
2
1
APPEARANCES:
2
ILLINOIS POLLUTION CONTROL BOARD,
100 West Randolph Street
3
Suite 11—500
Chicago,
Illinois 60601
4
(312)
814—8917
BY:
MR. BRADLEY
P.
RALLORAN,
HEARING OFFICER
5
6
KINTZINGER LAW
FIRM,
100 West 12th Street
7
P.O. Box 703
Dubuque,
Iowa 52004
8
(563)
588—0547
BY:
MS. PATRICIA M. REISEN-OTTAVI
9
Appeared on behalf of the Respondent.
10
11
12
Mr. Stephen G. Brill,
the complainant, appeared
13
pro
se.
14
15
16
17
18
19
20
21
22
23
24
L.A.
REPORTING
(312)
419—9292
3
1
HEARING
OFFICER
HALLOP.AN:
Good
morning.
My
2
name
is
Bradley
Halloran.
I’m
a
hearing
officer
3
here
with
the
Illinois Pollution Control Board.
I’m
4
also
assigned
to
this
matter
involving Stephen G.
5
Erill,
the
complainant,
versus
Henry
Latoria,
6
individually
and
doing
business
as
TL
Trucking
7
Foodliner,
PCB
No.
00—219.
8
Today’s
date
is
September
26th
in
the
year
9
2001.
This
matter
has
been
noticed
pursuant
to
10
Board
regulations
and
has
been
publically
noticed
in
11
the
local
newspaper
in
the
county
that
it
is
12
effective
here
in
Cook
County,
conducted
in
13
accordance
with
Sections
103.202
and
103.203
of
the
14
Board’s
regulations.
It’s
a
citizen
enforcement
15
matter
alleging
violations
of
9A
and
24
of
the
Act
16
and
regulations.
17
I
want
to
note
for
the
record
that
this
18
matter
is
continued
on
record.
It
was
noticed
up
19
originally
for
September
11th
at
9:30.
Due,
one,
to
20
the unavailability of rooms, we had to continue it
21
today.
22
Secondly,
it
was
a
tragic
day,
September
23
11th,
the
building
was
evacuated
at
9:30
due
to
the
24
terrorist’s
activity
so
we
could
not
have
had
the
2
MS. REISEN:,
I
have
no doubt
Mr.
Zak is
an
3
expert in
general
terms.
We need to qualify him as
4
an expert in this particular
case
in
order
for
his
5
expert
opinion
to
be
allowed
and
therefore
I would
6
like to voir dire the witness.
7
HEARING OFFICER HALLOR~: You may do
so.
8
MS. REISEN:
You had indicated Mr. Zak that you
9
have helped promulgate some of the Illinois
10
Pollution Control Board writings pertaining to
11
sound, correct?
12
MR.
ZAK:
That’s correct.
13
MS. REISEN:
And
specifically,
is
there
14
protocol to be followed in sound readings?
15
MR.
ZAK:
On some sound readings
yes, there is.
16
MS.
REISEN:
And
specifically
what
sort
of
17
sound
readings
require
protocol?
18
MR.
ZAK:
Protocol is required in
--
for
19
sections 901.102(a),
901.102(b),
901.104, 901.106.
20
MS. REISEN:
And that’s
a requirement that
21
there be sound
readings
in those?
22
MR.
ZAK:
That’s correct.
23
MS. REISEN:
Are you aware that Mr. Brill’s
24
petition raises violations of those very code
L.A.
REPORTING
(312)
419-9292
284
1
sections
with
the
exception
of
106,
that
his
2
petition
raises
violations
of
102(a)
102(b)
and
104?
3
MR.
ZAK:
Yes,
I’m
aware
of
that.
4
MS. REISEN:
So by
your
own
--
well,
by
the
5
protocol
that
you
help
promulgate,
that
requires
6
sound
readings
be
taken,
correct?
7
MR.
ZAK:
Are you
-—
I
need
you
to
clarify
the
8
question.
Are you referring to in order to prove a
9
violation
of
those
specific
sections?
10
MS. REISEN:
Correct.
11
MR.
ZAK:
Yes.
You would have to follow the
12
absolute
correct
protocol.
13
MS.
REISEN:
And
part
of
the
protocol
requires
14
a differentiation between ambient and extraneous
15
sound from what you’re trying to test,
correct?
16
MR.
ZAK:
Yes.
17
MS. REISEN:
Okay.
Because you have to know
18
that what you’re claiming is making the noise is
19
actually
the source?
20
MR.
ZAK:
That’s correct.
21
MS. REISEN:
Okay.
There are decibel reading
22
differential levels in order to determine whether or
23
not that can be excluded,
correct?
24
MR.
ZAK:
That’s correct.
L.A.
REPORTING
(312)
419—9292
285
1
MS.
REISEN:
Okay.
And
what’s
that
decibel
2
differentiation,
what’s the minimum threshold?
3
MR.
ZAK:
Three
and
ten.
4
MS.
REISEN:
Okay.
And
does
the
protocol
5
established
indicate
the
type
or
quality
of
sound
6
testing
information
being
used?
7
MR.
ZAK:
Could
you
rephrase
that?
8
MS.
REISEN:
Sure.
Does
the
protocol
or
the
9
rules
that
you
help
promulgate,
do
those
indicate
at
10
least
the
minimum
standard
of
the
type
of
equipment
11
used
in
testing?
12
MR.
ZAK:
Yes.
13
MS.
REISEN:
And
what
are
the
minimum
standards
14
required?
15
MR.
ZAK:
The
minimum
standards
require
is
16
quite
simply
ANSI
type
one.
17
MS.
REISEN:
Repeat
that.
18
MR.
ZAK:
A-N-S—I,
all
capitals,
type
one.
19
MS.
REISEN:
And
if
the
reading
is
from
20
anything
other
than
that,
it
does
not
meet
the
21
Board’s
own
recommendations
of
required
protocol?
22
MR.
ZAK:
No,
that’s
not
correct.
23
MS.
REISEN:
Okay.
What
is
ANSI
type
one,
a
24
certain
make
and
model?
L.A.
REPORTING
(312)
419—9292
286
1
MR.
ZAK:
ANSI type one
is a very detailed set
2
of
specifications
defining
what
is
a
precision
3
microphone,
a
precision
preamplifier
and
a precision
4
instrument.
5
MS.
REISEN:
And
you
want
those
precision
tools
6
to
get
the
best
read
possible?
7
MR.
ZAK:
You
want
the
--
it’s
not
--
you
can
8
do
better
than
type
one.
The
Board
specifies
type
9
one
to
meet
the
level
of
precision
required
by
the
10
Board.
That
is
not
the
most
precise
type
there
is.
11
MS.
REISEN:
That’s
the
minimum
you
allow?
12
MR.
ZAK:
That’s
the
minimum.
13
MS.
REISEN:
On
the
cases
that
you testified
14
before
the
Board,
did
you
conduct
sound
testing?
15
MR.
ZAK:
No.
16
MS.
REISEN:
And
how
was
that
about
that
you
17
testified
as
to
actual
sounds
or
did
you?
18
MR.
ZAK:
Are
you
referring
to
this
case
or
19
other
cases?
20
MS.
REISEN:
Strike
that.
That
is
confusing.
21
I
apologize.
22
In
this
particular
case,
did
you
take
any
23
sound readings?
24
MR.
ZAK:
No,
I
did
not.
L.A.
REPORTING
(312)
419—9292
287
1
MS.
REISEN:
Did
you
have
access
to
those
--
2
that
equipment
in
you
had
desired
to
take
the
3
reading or
if
Mr.
Brill
had
asked
you
to
take
the
4
reading?
5
MR.
ZAK:
Yes,
I
did.
6
MS.
REISEN:
And
did
Mr.
Brill
ask
you
to
take
7
the
reading?
8
MR.
ZAK:
Yes,
he
did.
9
MS.
REISEN:
And
you
did
not
take
the
reading?
10
MR.
ZAK:
That’s
correct.
11
MS.
REISEN:
So
you
have no objective data
to
12
present
to
the
Court
from
a
sound
read,
correct?
13
MR.
ZAK:
No,
I
do
have
specifically
under
14
900.102.
15
MS.
REISEN:
You
indicated
under
901.102,
which
16
is
what
Mr.
Brill’s
petition
alleges,
that
you
need
17
the
sound
readings
to
testify?
18
MR.
ZAK:
I
believe
they
also
allege
901.102.
19
I’m
sorry,
did
I
say
900.102
or
901.102?
Would
you
20
read
that
back,
please?
I
want
to
make
sure
I
said
21
the correct numbers.
22
THE
REPORTER:
You
said
900.
23
MR.
ZAK:
That’s
correct.
It
is
900.102.
24
Thank you.
L.A.
REPORTING
(312)
419—9292
288
1
MS.
REISEN:
At any time, did you conduct
2
readings
that
allowed
you
to
differentiate
the
3
ambient
and
extraneous
noise?
4
MR.
ZAK:
No,
I
did
not.
5
MS. REISEN:
Do you have decibel readings that
6
you
can
provide
to
this
Board?
7
MR.
ZAK:
No,
I
will
not.
8
MS.
REISEN:
Did
you
make
an
investigation
as
9
to
other
industry
in
the
area?
10
MR.
ZAK:
Yes,
I
did,
a
very
cursory
one.
11
MS. REISEN:
You did not take any sound reads
12
of
any
of
the
other
industry
in
the
area,
did you?
13
MR.
ZAK:
No.
14
MS. REISEN:
So we cannot differentiate their
15
controls out by anything that you put before this
16
Board?
17
MR.
ZAK:
I
would say that’s incorrect.
18
MS.
REISEN:
Let
me
put
it
to
you
real
simply,
19
do
you
have
anything
other
than
your
opinion
to
20
offer
today,
anything
objective?
21
MR.
ZAK:
What
do
you
mean
by
objective?
22
MS.
REISEN:
Reads,
decibels,
differentiation
23
between
different
levels,
something
that
was
24
obtained by a statistical measure that we can put on
L.A.
REPORTING
(312)
419—9292
289
1
paper.
2
MR.
ZAK:
Again,
I’m
commenting
on
900.102.
3
I
am
not going to comment on
—-
unless you ask
4
questions
—-
as
far
as
the
901
section
of
the
5
regulations.
6
MS.
REISEN:
Do
you
want
to
repeat
that
back
in
7
something
I
can understand?
8
MR.
ZAK:
Yes.
In
other
words,
900.102
is
9
nuisance
and
my
testimony
will be revolving
around
10
that
particular
section
of
the
regulations
not
under
11
the
901 section, which will be 901.102
(a),
(b),
104
12
and
106
under
901.
I
will
just
be
commenting
on
13
900.102.
14
MS.
REISEN:
My understanding is Mr. Bril has
15
said
before
this
Board
today
that
his
interest
is
in
16
the
dust
and
in
the
sound
and
those
fall
under
17
901.102(a),
901.102(b)
and
901.104,
correct?
18
MR.
ZAK:
No.
19
MS.
REISEN:
So
you’re
saying
that
you
believe
20
he
also
claimed
nuisance?
2.
MR.
ZAK:
There have been
numerous Board,
and
22
I’m
referring
to
Pollution
Control
Board,
numerous
23
Board decisions regarding measurements taken both
24
precision measurements
and nonprecision measurements
L.A.
REPORTING
(312)
419-9292
290
1
relative
to
900.102.
2
MS.
REISEN:
How
much
time
did
you
spend
at
3
Mr.
Brill’s
residence?
4
MR.
ZAK:
Approximately
two
hours.
5
MS.
REISEN:
And
what
did
you
do
during
that
6
two
hours?
7
MR.
ZAK:
Discussed the case to some extent
8
with
Mr.
Brill,
asked
Mr.
Brill
how
the
noise
was
9
impacting him and his family, proceeded outside to
10
look
over
the
area,
the
park
area,
the
neighbors
--
1.
the
position
of
the
neighbors’
homes,
noting
12
potential
sound
corridors
in
the
area,
reflection
of
13
sound in the area,
looked through the fence at the
14
trucking
facility,
took
laser
distance
measurements
15
from
the
Brill
residence
to
the
property
line
of
the
16
facility
and
from
the
property
line
of
the
facility
17
back
to
the
trucking
bay
and
also
laser
measurement
18
as
to
the
width
of
the
facility.
19
MS.
REISEN:
And
would
you
agree
that
whenever
20
there
is
sound
--
whenever there are sound
21
measurements
that
that
is
a better form of
22
measurement than eyeballing it as
Mr. Brill
likes to
16
Exhibit No.
14,
that’s where
I have
being left off.
17
MR. BRILL:
We ended there?
18
HEARING
OFFICER
HALLORAN:
Yes,
sir.
That’s
19
where you ended.
20
BY
MR.
BRILL:
21
Q.
I’d like to show this instrument to you,
22
Mr.
Zak,
and
see
if
you
can
identify
what
it
is
and
23
what
it’s
used
for?
24
A.
Yes.
It’s a Radio Shack sound level meter
L.A.
REPORTING
(312)
419—9292
298
1
and
they
designate
it
as
catalog
number
33-2050.
It
2
has
an
analog
display
on
the
meter.
3
Q.
Could
you
please
describe
its
function?
4
A.
The
function
of
the
instrument
is
to
5
measure
sound
in
a
general
manner
as
opposed
to
the
6
more
precise
measurement
of
a
type
one
meter.
The
7
different typically being about one decibel
8
difference
between
this
type
of
meter
and
the
9
precision
meter.
10
Q.
A
small
amount?
11
A.
A
small
amount.
12
Q.
Based on your knowledge of such
13
instruments,
are they reasonably reliable for
a
14
measurement of sound intensity?
15
A.
They are reasonably accurate for
--
I
would
16
like to correct the question,
I
would say for sound
17
level
measurement.
Sound
intensity
is
an
area
of
18
acoustics
that
the
Board
does
not
normally
deal
with
19
and
I
would
kind
of
like
to
clarify.that.
We’re
20
talking
about sound levels and sound pressure
21
levels.
The
Radio
Shack
meter
is
one
that
I
22
typically recommend for
the average
noise
23
complainant
who
calls
me
on
the
phone
and
wants
to
24
have an idea as to whether or not
the
noise
that he
L.A.
REPORTING
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299
1
is
being
bothered
by
is
of
sufficient
magnitude
to
2
exceed or possibly exceed the Board’s numerical
3
regulations.
Again,
the rationale there is that
4
this meter
costs anywhere between 30 and $60.
The
5
instrumentation
that
is
typically
used
to
meet
ANSI
6
precision
costs
usually
in
the
area
of
three
to
7
$5,000.
8
Q.
For
a calibrated difference of one decibel?
9
A.
That’s
correct.
10
Q.
Have you ever tested such an instrument for
11
reliability?
12
A.
Yes,
I
have.
I
have
actually
used
them
13
myself
for
the
last
20
years.
14
Q.
And what is your conclusion about its
15
reliability?
16
A.
They typically don’t drift and by drifting
17
I mean when they’re calibrated, they basically hold
18
their
calibration.
The
accuracy
is
normally
within
19
one decibel or less of a precision meter.
Because
20
they are so inexpensive,
if I have one in the field
21
and
I drop it or it gets somehow destroyed in the
22
field,
the
loss
is
much,
much
less
than
it
is
with
a
23
precision instrument.
24
Q.
You
keep
alluding
to
these
precision
L.A.
REPORTING
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419—9292
300
1
instruments and yet this one is only one decibel
2
different from the precision instrument.
3
Wouldn’t this almost qualify as a
4
precision instrument?
5
A.
No,
it wouldn’t,
and
I can explain that
6
to you, but to give you
a fairly comprehensive
7
explanation is about a two-and-a-half-hour
8
explanation.
For brevity,
we may want to skip and
9
suffice it to say that if one
reads
the ANSI
10
standards,
one
can
see
the
difference
between
the
11
two instruments.
12
Q.
From
your
experience
with
these
13
instruments, what’s the likelihood that the
14
calibration
would
change
over
time?
15
A.
Again,
very
little.
16
Q.
Mr.
Zak,
were
you
here
when
the
complainant
17
described how he took measurements with this sound
18
level
meter?
19
A.
Yes.
20
Q.
Based
on
the
knowledge
you
have
of
such
21
instruments,
also
assuming
this
is
a
reliable
22
instrument and assuming the testimony of the
23
complainant is true and correct, do you have an
24
opinion
based
on
a
reasonable
degree
of
scientific
L.A.
REPORTING
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419—9292
301
1
certainty whether or not the complainant’s records
2
on
Exhibit
No.
16
accurately
reflect
the
noise
3
values?
4
MS.
REISEN:
I’m
going
to
object
and
I
have
a
5
question if I may ask the witness.
6
MR. BRILL:
Now?
7
MS.
REISEN:
It
goes
correctly
to
what
you’re
8
reading
off
that
piece
of
paper
in
front
of
you.
9
MR.
BRILL:
That’s
for cross-examination.
10
HEARING
OFFICER
HALLORAN:
Let’s
go
off
the
11
record for a minute.
12
(Whereupon,
a
discussion
13
was had off the record.)
14
HEARING OFFICER HALLORAN:
Before we got off
15
the record Mr.
Brill alluded to Exhibit 16.
We went
16
off the record.
He’s tried to locate it.
He cannot
17
locate
it.
It’s
my
understanding
he
wants
Mr. Zak
18
to
form
an
opinion
based
upon
Exhibit
16,
which
rio
19
one has seen that
I know of.
Ms. Reisen, have you
20
seen
Exhibit
16?
21
MS.
REISEN:
No,
I’ve not.
22
HEARING
OFFICER
HALLORAN:
Mr.
Brill,
not that
23
it makes any difference,
but what exactly is Exhibit
24
16
on
your
—-
L.A.
REPORTING
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419—9292
302
1
MR. BRILL:
I believe it’s excerpts from my log
2
that I transcribed to another paper that
I marked as
3
Exhibit 16 and that was
a list of all the sound
4
readings
that
I
had
in
--
that
I took from the log
5
itself.
Is it on the last page on that one,
6
Mr,
Hallorari?
7
HEARING OFFICER HALLORAN:
The log you’re
8
referring to is Exhibit
1,
which has not been
9
admitted into evidence.
I’ve reserved ruling on
10
that.
Yes.
There’s
three
pages
of
yellow
colored
11
12
MR.
BRILL:
That’s
the
one.
Is
that
marked
as
13
an
exhibit?
14
HEARING OFFICER HALLORAN:
It’s marked as
15
Exhibit
1.
16
MR. BRILL:
Well,
that should be Exhibit 16.
17
It’s part of number one,
but because it’s a separate
18
entity,
it probably should be
marked
as
Exhibit
16.
19
MS. REISEN:
Your Honor,
I have an objection to
20
a
greater
issue
at
this
point.
21
HEARING OFFICER HALLORAN:
Go ahead.
22
MS. REISEN:
It is apparent that Mr. Brill
is
23
reading
questions
that
are
not
of
his
own
words
and
24
my
question
is
if
those
questions
were
supplied
by
L.A.
REPORTING
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419—9292
303
1
Mr.
Zak
or
where
Mr.
Brill
got
those
questions.
2
Mr. Brill proceeds pro se, both to his detriment and
3
to his benefit.
His benefit being that he’s not had
4
to
incur
any
legal
expenses.
His
detriment
being
5
that
he
needs
to pose his own questions and he needs
6
to find a way to present his evidence in a manner
7
similar to what anybody else would have to do.
8
HEARING
OFFICER
HALLORAN:
Has
anyone
assisted
9
you,
Mr.
Brill,
in
those
questions?
10
MR.
BRILL:
My
questions
were
taken
from
11
transcripts
of
former
hearings.
Mr.
Zak
did
not
12
advise me as to what questions to ask him.
I just
13
was able to transcribe them off of a case of a
--
in
14
the case of Overland Trucking, they had a number of
15
questions in there and
I took questions that
I
16
thought were pertinent to this case.
17
HEARING OFFICER HALLORAN:
Ms.
Reisen, and your
18
objection was?
19
MS. REISEN:
That he needs to present his own
20
evidence,
his own questioning and he had previously
21
——
22
MR. BRILL:
But all knowledge is secondhand and
23
if I take knowledge from a dictionary or a former
24
transcript,
it’s all secondhand knowledge and if
I
L.A.
REPORTING
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419-9292
304
1
take questions that
I figure
that
are
apropos
to
2
this case,
I can’t see anything wrong with it.
3
HEARING OFFICER HALLORAN:
I’m going to deny
4
Ms.
Reisen’s
objection
about
Mr.
Brill’s
method
of
5
gathering
the
questions
he’s
asking
Mr.
Zak.
6
At this point,
I’d like to tender back to
7
Mr.
Brill
—-
it looks like a portion of Exhibit
1
8
which has not been yet admitted into evidence and
9
it’s entitled measured noise levels from logs.
10
Mr.
Brill
--
have you seen this?
11
MS. REISEN:
No.
12
MR. BRILL:
No.
That’s
a compilation of all of
13
my readings.
14
HEARING OFFICERHALLORAN:
We’re off the record
15
for a moment.
16
(Whereupon,
a discussion
17
was had off the record.)
18
HEARING OFFICER HALLORAN:
We’re back on the
19
record.
Mr. Brill?
I’m sorry.
Ms. Reisen was
20
looking over Exhibit 16.
Mr. Brill,
there’s your
21
exhibit back.
22
MS. REISEN:
Mr. Brill,
there’s your exhibit
23
back.
24
MR. BRILL:
I’m sorry.
Should this be remarked
L.A.
REPORTING
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419—9292
305
1
16?
It’s part of the
log.
It’s excerpts word for
2
word from the
logs, but it is a separate entity in
3
the fact that it is a compilation of only the parts
4
of the log that refer to my readings with the sound
5
level meter.
6
HEARING OFFICER HALLORAN:
A copy would have
7
been greatly helpful.
In fact, copies would have
8
been greatly helpful for all this stuff to make the
9
hearing
go
a
little
smoother
and
easier.
10
At this point, leave it marked as Exhibit
11
1.
We’ll have to make a copy of it and mark it
12
Exhibit 16, but would you like to tell the Board
13
exactly
what
Exhibit 16 is?
14
MR. BRILL:
Well, it’s still
one.
15
HEARING OFFICER HALLORAN:
Sir, whatever,
16
Exhibit
1 or 16,
it seems to be one and
the
same.
17
MR. BRILL:
This is a compilation of all of my
18
sound reading
--
sound readings that
I took and
I
19
took them all from my logs and there’s nothing else
20
in here except sound readings and when and where and
21
under what conditions they were taken.
22
I thought it would be a simplified matter
23
because of the fact that my log
—-
I would have to
24
look around
--
as long as we’re going to be working
L.A.
REPORTING
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419—9292
306
1
about readings,
I thought it would be better to put
2
them all on a couple pages so that they would be
3
easier to address rather than me going through the
4
whole log and picking off each one.
All the entries
5
are dated and they run in sequence from when I took
6
those
readings
and
I just thought it
would
be
a
7
simplified method of
--
that
would
pertain
to
noise
8
readings and noise readings alone.
9
HEARING OFFICER HALLORAN:
Well,
the problem is
10
if I don’t accept Exhibit No.
1 into the evidence,
11
that’s going to go out the door as well.
So that’s
12
my concern.
That Exhibit No.
16 you have in front
13
of you, soon to be 16,
that was authored by you?
14
MR. BRILL:
Yes.
15
HEARING OFFICER HALLORAN:
You took the
16
readings.
17
MR. BRILL:
Yes,
I did,
sir.
18
HEARING
OFFICER
HALLORAN:
Ms.
Reisen,
any
19
comments?
20
MS. REISEN:
Obviously if the
Court
is
going
to
21
accept it,
we’d like our objection to be noted on
22
the record that these are readings taken by
23
Mr. Brill,
not by Mr. Zak and that actually
the log
24
indicates
the
time
and
what
he
has
a
read
for,
but
L.A.
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419-9292
307
1
doesn’t necessarily indicate other conditions.
2
HEARING OFFICER
HALLORAN:
I’m going to admit
3
it, not so much to prove there was a fact of a
4
violation, but just to bolster Mr. Brill’s claim
5
of his alleged violations.
Exhibit No. 16 is
6
admitted over the objection.
You may proceed,
7
Mr.
Brill.
Thank you.
8
BY MR.
BRILL:
9
Q.
We left off with that rather long
10
convoluted question that
I asked you.
I don’t know
11
if you remember what it was, but
I was going to ask
12
you
if you had any opinion on that question.
13
A.
Somebody has to read the question back to
14
me.
15
HEARING OFFICER HALLORAN:
Mr.
Brill, would you
16
please
——
17
BY MR. BRILL:
18
Q.
Based on the knowledge you have of such
19
instruments
——
20
HEARING OFFICER HALLORAN:
Let’s nip this in
21
the bud right
now.
Has Mr.
Zak
--
before you get
22
done with that long question,
has Mr.
Zak ever laid
23
eyes on Exhibit 16?
You might want to
--
24
MR. BRILL:
He has laid eyes on
-—
L.A.
REPORTING
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419—9292
308
1
HEARING OFFICER HALLORAN:
You might want to
2
ask Mr. Zak that before you ask him
if Exhibit 16 is
3
4
BY MR. BRILL:
5
Q.
I don’t think you’ve ever seen this because
6
it’s been lifted.
You’ve seen parts of it on my
7
log, but you haven’t seen a compilation of the
8
readings and the readings alone entered on this
—-
9
on these three sheets?
10
A.
Not until
a
few
minutes
ago.
11
Q.
Huh?
12
A.
Not until
a few minutes ago.
13
Q.
Okay.
And if
I
let you look at this,
can
14
you give me an opinion on what you read?
15
HEARING OFFICER HALLORAN:
I’m sorry.
Let’s go
16
ahead and reread your question.
I
apologize.
And
17
let’s
see what that flushes out.
18
BY MR. BRILL:
19
Q.
Based on the knowledge you have of such
20
instruments, also assuming that this is a reliable
21
instrument and assuming the testimony of the
22
complainant is true and correct,
do you have an
23
opinion based on a reasonable degree of scientific
24
certainty whether or not the complainant’s records
L.A.
REPORTING
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419—9292
309
1
on Exhibit 16 accurately reflect the noise values
2
that would have occurred at the time of the
3
recordings?
4
HEARING OFFICER HALLORAN:
I don’t think
5
Mr. Zak has seen Exhibit 16.
If you
--
if
that’s
6
the question you’re asking him,
I assume that
7
Mr. Zak has to look over Exhibit 16.
8
BY THE WITNESS:
9
A.
Yes.
10
BY MR. BRILL:
11
Q.
So your
opinion
is that
--
they could very
12
well be
a true reflection of the readings that
I
13
took?
14
A.
If I understood the question,
you asked me
15
if I could give you an opinion on Exhibit 16 and my
16
answer to that was yes.
17
Q.
Okay.
What’s that opinion,
I’m sorry?
18
A.
Having calibrated your meter with a
19
precision
calibrator
to
ensure
it’s
accuracy
and
20
your data here indicates some measurements were
21
taken
indoors
and
some
measurements
were
taken
22
outdoors, but
the levels
in general are typical of
23
the levels that normally would result in a
24
significant amount of interference from the noise as
L.A.
REPORTING
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419—9292
310
1
far as sleep is concerned, as far as listening to
2
television,
using your backyard.
3
Q.
How about normal conversation?
4
A.
And normal conversation would also be
5
interrupted by levels this high.
This
is my main
6
concern,
though, is from the levels and all the
7
testimony today as far as the impulsive nature of
8
much of the noise that it would make it difficult to
9
sleep or nap with the impulsive nature of the noise
10
present
at the trucking facility.
11
I would compare this very much to the type
12
of information that was provided to me when I
13
testified in Overland versus
——
actually, Cohen
14
versus Overland before the Board and it also is very
15
similar to
--
almost identical to Thomas versus
16
Carry
Companies
and
Thomas
versus
Carry
Companies
17
was also a truck washing facility.
The difference
18
being the Thomas complaint was located a little bit
19
closer than you are,
but not any closer
--
about the
20
same
type
of position as the lady who’s first name
21
was Nancy that testified earlier about her house and
22
her location.
23
So I would say the data here compares very
24
much to the data that was taken at Overland and the
L.A.
REPORTING
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419—9292
311
1
testimony compares very much to the testimony at
2
Thomas versus Carry Companies.
3
Q.
What do you think the impact of those
4
readings would be on entertaining guests?
5
A.
Again,
we’re looking at levels that are in
6
the upper
60s and those type
of levels would make
7
conversation difficult.
As far as guests are
8
concerned if conversation is going on,
there would
9
be
a
significant
impact
on
being
able
to
carry
on
a
10
conversation based on
——
based on these types of
11
levels and to kind
of
continue
along
the
same
line,
12
the levels on the C—scale are quite high,
which
13
would indicate the noise would be very penetrating
14
to a residence of normal construction,
which has
15
been described here today.
16
Q.
I would like you to look at Exhibit No.
9,
17
which is our original complaint that was filed with
18
the Illinois Pollution Control Board and
I would
19
refer
you
to
page
four
of
that
document,
paragraph
20
number nine
I believe.
Is there
a ninth paragraph?
21
A.
Yes,
I have it on page four.
22
Q.
Okay.
Have you ever or are you familiar
23
with any situation in which
a device of this type
24
has been used as a sound controlling mechanism or
L.A.
REPORTING
(312) 419—9292
312
6
will continue this hearing when the time come when
7
Mr. Zak step downs to a date two or three weeks down
8
the
road
whenever
we
can
agree
on
a
date.
9
MR. BRILL:
Okay.
10
HEARING OFFICER HALLORAN:
So be it.
Thank
11
you.
12
MS. REISEN:
May
I take no more than two
13
minutes to talk to these gentlemen outside?
14
HEARING OFFICER HALLORAN:
Sure.
We’re off the
15
record.
16
(Whereupon, a discussion
17
was had off the record.)
18
HEARING
OFFICER
HALLORAN:
We’re
back
on
the
19
record.
It’s approximately 5:43 and Ms. Reisen is
20
about to cross Mr. Zak and
I remind Mr.
Zak that
21
he’s still under
oath.
22
MR.
ZAK:
I understand.
23
24
L.A.
REPORTING
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419—9292
337
1
CROSS-EXAMINATION
2
by Ms. Reisen
3
Q.
Mr.
Zak,
you had indicated that the Radio
4
Shack
sound
meter
that
you’ve
identified
for
the
5
record
can
give ,readings
within
the
one
decibel
6
range,
correct?
7
A.
It could be anywhere from exactly right on
8
to an error of
--
the typical
error
is
one
decibel.
9
I’ve seen it where the error may be two decibels.
10
Q.
Wouldn’t you agree that if we could reduce
11
sound in a neighborhood by five decibels even,
12
that’s significant?
13
A.
No.
Ten decibels is significant.
-
14
Q.
If ten decibels is what it takes to be
15
significant, why did the Board adopt the three
16
decibel difference between extraneous and ambient
17
noise?
18
A.
It’s a mathematical problem.
In order
19
to
--
and
it’s a lengthy explanation.
When you have
20
——
I’ll give you an example,
it will be simpler that
21
way.
If we measure,
say,
50 decibels at
a certain
22
frequency
and
then
we
measure
the
ambient
at
47
23
decibels, mathematically the 50 is the ambient plus
24
the
noise
source
in
order
to
calculate
out
--
we
can
L.A.
REPORTING
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419—9292
338
1
back calculate the actual level of the noise source
2
in that case and it would turn out to be 40 decibels
3
and
because
of
the
fact that it would be that
low,
4
we would not want nor do we count
a measurement
5
where
the
difference
between
the
ambient
and
the
6
noise source is three decibels or less.
7
Q.
Okay.
You
had indicated that that sound
8
read will give differences in intensity or not give
9
difference in intensity of sound.
10
A.
I don’t think
you want to use the word
11
intensity because acoustically that means something
12
entirely different than what we’re talking about
13
here.
Intensity is directiOnal sound power.
14
Q.
Let
me
ask
you this:
You were here this
15
morning
when
Mr. Brill testified as to how he used
16
that
machine,
correct?
17
A.
Yes.
18
Q.
And
had
you
calibrated
it
before
he
started
19
any of the reads that are on his Exhibit 16?
20
A.
No,
I
calibrated
it
today.
21
Q.
And so you can say that as of today it was
22
calibrated fairly decently,
correct?
23
A.
That’s
correct.
24
Q.
Can
how
it’s
handled
such
as
dropped
or
L.A.
REPORTING
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419-9292
339
1
issues
like
that
change
the
calibration?
2
A.
Not
normally.
3
Q.
What changes the calibration?
4
A.
It depends more on the instrument in my
5
experience.
I ran
a calibration laboratory for the
6
state
for several years.
The more complex the
7
instrument it seems,
the more there
is a tendency
8
for drift.
The simpler instruments unless there’s a
9
major change in an electrical component,
don’t
10
normally have any significant drift.
A Radio Shack
11
meter is one that
—-
I have had these around for 20
12
years and had examined dozens and dozens of these
13
meters and I’ve never seen one to have virtually any
14
drift.
15
Q.
You’re basing your statements on your
16
general knowledge of that particular instrument,
17
correct?
18
A.
That’s correct.
19
Q.
You can state with any degree of certainty
20
that Mr. Brill’s instrument was indeed properly
21
calibrated when he took the reads?
22
A.
Yes, because I checked it today and they
23
don’t drift.
24
Q.
They never drift,
that’s your testimony?
L.A.
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419—9292
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1
A.
That’s
been
my
experience
for
20
years.
2
Q.
But
you
didn’t
do
any
calibration
checks
at
3
the
time
of
the
reads?
4
A.
That’s
correct.
5
Q.
Okay.
Mr.
Brill
testified
that
he
6
essentially just turned the knob until he got a
7
read,
do you remember that testimony this morning?
8
A.
Yes.
9
Q.
So
is
it your testimony that my
10
eight-year-old son could walk outside,
twist the
11
knob and get just as good a read as say you can with
12
the
ANSI
equipment?
13
A.
No.
Because
I
instructed
Mr.
Brill
in
14
great
detail
on
how
to
do
it.
15
Q.
His
testimony
this
morning
was,
however,
16
that he read the book and he didn’t have much faith
17
in
it
himself,
do
you
remember
that?
18
A.
Yes.
19
Q.
He never mentioned at all about your
20
training
him?
21
A.
We
discussed
it at length on the phone and
22
I went through the whole procedure with him and
23
basically
how
to
do
it.
24
Q.
His statement today was he would just twist
L.A.
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L.A.
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419—9292
345
1
you’ve
not
heard
the
other
side
of
the
case?
2
A.
Well,
based
on
my
nearly
30
years
of
3
experience
taking
the
Board
regulations
and
the
4
Board
rules,
we’re
all
limited
as
to
the
amount
of
5
noise we can generate in Illinois.
Once you have a
6
situation
where
that
is
being,
in
my
opinion,
7
exceeded,
then it’s incumbent upon the noise emitter
8
to
work
on
solving
the
problem.
9
Q.
I
understand
that.
One
of
the
tables
10
that’s
in
Mr.
Homans
reports
is
the
Illinois
11
Pollution Control Board Property Line Limits and it
12
specifically
has
an
octave
band
center
frequency
and
13
it
list
several
octave
bands
and
then
it
gives
14
decibel
reading
underneath
that.
Are
you
familiar
15
with
that
table?
16
A.
Yes.
I
helped
to
generate
the
data
that
17
created
that.
18
Q.
First
of
all,
what’s
the
difference
-—
why
19
do
you
have
different
decibel
levels
at
different
20
octave
frequencies?
21
A.
A couple of reasons.
Most states in the
22
federal
government
tend
to
use
——
A-weighted
23
measurements, which
is one single measurement and
24
that’s
it.
Illinois
and
the
city
of
Chicago
and
L.A.
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419—9292
346
1
most
of
Europe,
Japan,
decided
to
go
with
octave
2
band
and
even
third
octave
band.
The
reason
we
do
3
that is if we have a low frequency noise source,
4
that
will
be
clearly
indicated
with
the
measurement
5
and
we
can
also
assign
a
decibel
level
that
we
call
6
the allowable limit where that limit is exceeded
--
7
there’s
been
a
lot
of
research
done
that
indicates
8
when
you
exceed
a
certain
level,
you’re
going
to
9
create
a
certain
amount
of
annoyance
in
the
general
10
population
and
that’s
basically
how
the
Illinois
11
regulations came to be based on lot of research.
12
Q.
So
depending
on
what
frequency
you’re
13
testing
at
will
determine
whether
or
not
the
14
decibels
are
too
high?
15
A.
That’s
right.
16
Q.
Okay.
And
that
sort
of
read
usually
comes
17
from
the
better
equipment,
isn’t
that
correct?
18
A.
Not
necessarily.
If
we
take
an
A-weighted
19
measurement
that
exceeds
the
sum
of
the
octave
bands
20
and
that
A-weighted
measurement
is
higher
than
it
21
should be,
we know proof positive that one of the
22
octave bands is exceeding the regulation.
23
If we do the
--
if we
take an A-weighted
24
measurement and it’s below what would normally be
L.A.
REPORTING
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419—9292
347
1
allowed
for
the
octave
band
measurements,
we
can
2
still
have
a
situation
where
one
of
the
octave
bands
3
is way above the regulatory limit, but because of
4
the
nature
of
A-weighting, it’s not shown.
5
I
can
give
you
an
example
of
that.
If
you
6
take 31 and a half Hertz,
that particular frequency
7
when
it’s
measured
on
Awaiting,
39
decibels
is
8
subtracted from the measurement.
If that’s
—-
with
9
that
situation
in
hand,
we
can
have
--
for example,
10
in your client’s case,
their daytime A—weighted
11
limit would be approximately 61 decibels.
They
12
could be 60 and producing 99 decibels at 31 and
a
13
half Hertz, which would greatly exceed the allowable
14
limit.
So
the
A-weighted
type
measurement
is
—-
it
15
indicates
a violation, but it doesn’t indicate
16
compliance.
17
Q.
And
all
of
that
that
you
just
explained,
18
you
did
not
provide
any
of
that
testing
at
all
19
yourself?
You didn’t take any reads of any octaves?
20
A.
That’s
correct.
21
Q.
You have
a recommendation that some sort of
22
a sound barrier will be sufficient or at least
23
alleviate
some
sound
if
the
sound
is
in
fact
coming
24
from
TL
Trucking,
correct?
L.A.
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419—9292
348
1
A.
Correct.
2
Q.
That recommendation is premised upon the
3
assumption that the sound is coming just from TL
4
Trucking,
isn’t
it?
5
A.
Based
on
the
testimony
that
we
heard
today.
6
Q.
And
again,
that
testimony
today
is
just
7
Mr.
Brills
witnesses?
8
A.
Yes.
9
Q.
Okay.
Now,
Mr.
Homans
was
not
able
to
10
separate
out
the
sounds
of
TL
Trucking
statistically
11
from the sounds of other noise in the area,
correct?
12
A.
That’s
correct.
13
Q.
And
so
if
Mr. Homans’
report
is
correct,
14
you can put up a barrier in front of TL Trucking and
15
Mr.
Brill is still going to have problems with
16
noise,
isn’t
he?
17
A.
It isn’t a question of Mr. Homans data
18
being
correct
or
incorrect.
The
big
question
really
19
is
were
the
sound
emissions
from
TL
Trucking
typical
20
when Mr. Homan was there?
21
Q.
And
if
we
assume
that they were typical
22
when Mr. Homans was there
--
first of all,
you read
23
that he did his testing from,
I believe,
five to
24
seven or five to eight a.m.,
did you note that?
L.A.
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419—9292
349
1
A.
That’s
correct.
2
Q.
Okay.
And
several
of
the
witnesses
today
3
testified
that
the
worst time was around that time
4
frame,
correct,
the
early
morning
hours?
5
A.
Correct.
6
0.
In
fact,
Mr.
Homans states that’s why he
7
went
during
that
time
frame,
he
wanted
to
hit
the
8
time these people were complaining about?
9
A.
That’s
correct.
10
0.
Okay.
And
so
when
he
was
out
there
on
that
11
date
--
strike that.
12
Additionally,
several
of
the
witnesses
13
indicated this is a daily event, you heard that
14
testimony
too,
didn’t
you?
15
A.
Yes.
16
Q.
Other than conjecture, we have no
17
information that the day Mr.
Homans was there was
18
somehow an atypical day that no one seemed to
19
testify about today,
do we?
20
A.
I do have my experience and my experience
21
has told me in 30 years that in more cases than not,
22
an
industrial
noise
source
will
do everything they
23
can when the consultant is there to minimize the
24
noise.
L.A.
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419—9292
350
1
Q.
Now,
if
I were to tell you my office
2
arranged it and did not give prior notice to TL
3
Trucking,
would
that
change
your
opinion?
4
A.
Only
if
Mr.
Homans
had
taken
it
over
5
several days so we had a reasonable sample as
6
opposed
to
a
one
event
type
of
situation
there.
7
Q.
So
you’re
feeling
that an isolated read is
8
not
a
sufficient
read?
9
A.
In cases like this when the consultant is
10
working for
the company,
a
lot of diligence and care
11
must
be
taken
to
be
sure
that
the
reading
is
12
actually
an
accurate
reading.
The
way
I’ve
always
13
done
this
myself
is
to
have
the
residents
there
and
14
ask
the
residents
as
I
take
the
measurements,
is
15
this
typical.
If
they
say
—-
and
it’s
been
my
16
experience that when they say it’s typical,
in
17
probably
98
percent
of
the
cases,
the
measurements
18
were over.
19
Q.
You
stated
on
your
direct
examination
that
20
Mr.
Homans
has
an
excellent
reputation
generally,
21
correct?
22
A.
Absolutely,
impeccable.
23
Q.
Okay.
I’m
curious
as
to
why
you’re
holding
24
such a high standard to his report, but you don’t
L.A.
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419-9292
351
1
hold a similar standard to the readings Mr.
Brill is
2
submitting
to
this
Board?
3
A.
I don’t understand the question.
4
0.
You
were indicating all sorts of problems
5
with Mr. Homans report such as timing, such as
is
it
6
typical,
et
cetera,
but
you’re
not
raising
the
same
7
typicality
questions
or
motive
or
bias
questions
as
8
to
Mr.
Brill
and
I’m
concerned
about
your
9
impartiality.
10
A.
Well,
being a private consultant myself and
11
working
for
clients,
the
consultant
is
somewhat
12
hampered
in
that
he
takes
the
measurements
when
the
13
client
tells
him
to
take
to
measurements,
either
14
through the client or through
the client’s attorney
15
and
in
a
situation
like
that,
the
consultant
can
be
16
acting in and typically
is acting in good faith, but
17
there
can
be
an
attempt
on
the
part
of
the
company
18
to
minimize
the
noise
levels
on
the
particular
day
19
the consultant is there.
20
Q.
And
that
presumes
prior
knowledge
of
when
21
the test would be run?
22
A.
Or if
the
consultant
is
spotted.
I’ve
been
23
spotted many times when I worked
for the state and
24
as
soon
as
I
was
spotted,
the
levels
would
typically
L.A.
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419-9292
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1
drop
dramatically.
2
Q.
Mr. Homans notes in his report that there
3
were
three
liquid
trucks
and
one
dry
bulk
truck
that
4
were being washed during the measurement period,
5
which would indicate that activity was going on at
6
TL Trucking, would you not agree?
7
A.
Yes.
8
Q.
And
you
have
no
reason
to doubt that he put
9
that in there without a basis for
it?
10
A.
Right.
11
Q.
Mr. Homans states as can be seen
good,
12
parenthesis, nonextraneous, end of parenthesis, and
13
ambient data are within three decibels of one
14
another,
therefore,
it
is
not possible
to discern
15
noise
emissions
due
to
TL Trucking.
16
Are
you calling that specific conclusion
17
into question based upon the data that Mr. Homans
18
attached
to
his
report?
19
A.
If I can explain that because I’m a little
20
bit
fuzzy
on
your
question
there.
The
ambient
21
Mr.
Homans
measured
and
extraneous
noise
Mr.
Homans
22
measured would come into
--
would
be
a
problem
if
23
the
levels
from
TL
Trucking
were
extremely
low.
24
Again,
we
get
back
to
the
question
of
did
he
really
L.A.
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419—9292
353
1
measure
typical
levels.
His
measurement
in
all
2
honesty
--
you could take his measurements and end
3
up with reading low numbers, which would then kick
4
all
his data into the ambient problem and into the
5
extraneous noise problem.
6
Q.
You
met with Mr. Brill in his home for
7
about
an
hour
and a half?
8
A.
Two
hours.
9
0.
Two
hours.
And
you
were
able
to
converse
10
with
him?
11
A.
Yes.
12
0.
Okay.
The Board typically in these sorts
13
of cases needs to look not only at unreasonable
14
interference with the lives of
the individuals,
but
15
also looks to the benefit of the service being
16
provided,
isn’t
that
correct?
17
A.
Yes.
18
Q.
Are you familiar with what TL Trucking does
19
as
a
service?
20
A.
Somewhat from the testimony today,
I
21
believe
I
am.
Basically
from
your
22
cross—examination.
23
Q.
Okay.
But
other
than
what
limited
bit
24
you’ve heard today, you’ve not heard either of my
L.A.
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419—9292
354
1
two clients here with me today talk about what they
2
do,
why
they
do
it
and
how
they’re
required
to
do
3
it,
is that correct?
4
A.
If
I
could
answer
that
with
my
experience
5
through the
case against
Carry
Companies,
it
6
basically
had
the
same
type
of
operation
there
and
7
we
spent
several
days
in
hearings
in
this case and
8
again,
I
got
quite
an
education
on
their
food
trucks
9
and
their
tankers
and
their
being
washed
out
again
10
to meet the various federal requirements for food.
11
So
from
that case there,
I am familiar with the
12
basics
of
what’s
going
on.
13
Q.
Okay.
And again,
you’ve not heard the
14
testimony of Mr. Stumbris or Mr.
Esposito, who both
15
have been excused for
the day, regarding the actual
16
makeup
of
industry
or
the
neighborhood
in
Franklin
17
Park,
correct?
18
A.
That’s
correct.
19
0.
And
your
own
investigation
as to the area
20
was
cursory
to
use
your
own
term?
21
A.
Yes,
it
was.
22
Q.
Those are factors the Board should
23
consider,
correct?
24
A.
I’m
not
going
to
tell
the
Board
what
they
L.A.
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419—9292
355
1
should
or
should
not
consider.
2
0.
Fair
enough.
3
I’m
curious
as
to
how
you
rectify
in
your
4
own mind since you’re basing much of your testimony
5
on
the
witness
testimony
that
you
did
here
today,
6
how we could have witnesses within close proximity
7
--
indeed,
we
had
a
mother
and
a
daughter
in
the
8
same
home
who
one
said
no,
I
don’t
ear
air
horns
and
9
the
other
one
says,
but
I
do.
How
do
you
rectify
10
the difference in what these residents are hearing?
11
A.
That’s
not
the
least
bit
unusual.
Having
12
heard hundreds of people testify over the years, it
13
gets
down
to
the
individual
personality
of
the
14
person
that
is
hearing
the noise
——
we could even
15
say
sound
as
opposed
to
noise
because
we
have
16
situations were some people will say well,
it’s a
17
sound
and
it
sounds
good
to
me,
others
will
say
it
18
really
irritates
me.
19
I can give you an example of
a case we had
20
against
Rock
Theater,
some
of
the
younger
folks
21
heard the rock theater and thought it was great and
22
lived in the house and the parents just couldn’t
23
stand
it
and
so
the
younger
folks
perceived
it
as
24
sound,
there’s
no
problem,
and
yet
the
parents
in
L.A.
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419—9292
356
1
the house thought it was just the worse sound
2
possible
--
the worst noise possible.
3
Q.
Understood.
And if you had an incredibly
4
sensitive
complainant,
then
his
level
might
be
5
slightly different than that of other people?
6
A.
Absolutely.
That’s again why in a hearing
7
like
this
if
you
only
have
one
witness,
in
my
own
8
mind there’s always a large doubt.
Once we begin to
9
have
several
witnesses
that
are
being
bothered,
then
10
it
indicates
that
there
is
a
problem
there.
11
MS.
REISEN:
I
have
nothing
else.
Thank
you.
12
MR.
ZAK:
Thank you.
13
HEARING
OFFICER
HALLORAN:
Mr.
Brill,
any
