Attachment 1
State
of
Illinois
iF
LERK
CEVED
S
OFFICE
Pollution
Control
Board
r4OV
12
20118
100
W.
James
Randolph
R. Thompson
Street,
Suite
Center
11-500
PoIiut
STATE
OF
Control
ILLINOIS
Board
Chicago,
Illinois
60601
http://www.
ipcb.state.iI.us/
In
The
Matter
Of:
Anne
McDonagh
&
David
Fishbaum
1464
Linden
Avenue
Highland
Park,
IL
60035
Complainant(s),
V.
Richard
and
Amy Michelon
1474
Linden
Avenue
Highland
Park
IL 60035
Respondent(s)
)
NOTICE
OF
FILINGTO:
Eliot
Wiczer,
Wiczer
&
Zelmar,
500
Skokie
Valley
Road,
Suite
350
Northbrook
IL
60067
PLEASE
TAKE
NOTICE
THAT
ON
November
10,
2008, THE
UNDERSIGNED
MAILED
to
the
State of
Illinois
Pollution
Control
Board,
James R.
Thompson
Center,
100
W.
Randolph
Street,
Suite
11-500,
Chcago,
IL 60601,
a copy
of
Complainants’
Motion
to
Bar
Respondents’
Expert’s
Opinions,
a copy
of
wijich
is
)
)
)
)
)
)
)
)
)
)
)
PCB
2008
- 076
(For
Board
use
only)
and
served
upon
you.
CERTIFICATE
OF
SERVICE
I, Anne McDonagh,
do
state
that I
have
sent a
copy of
this
Filing
and
Response
to
be served
upon
the persons
named
above
by personally
der
iber 10,
2008.
COMPLAINANTS’
MOTION
TO BAR RESPONDENTS’
EXPERTS
OPINIONS
The
Complainants
in Case 2008-076,
Anne McDonagh
and David Fishbaum,
file this
request
to Bar
Respondents’ Expert
from offering
any opinions
in this case (or filing
an untimely
report)
due
to Respondents’
failure to comply
with
a
PCB Hearing
Officer
order to make their
expert
disclosures by
October 15, 2008.
Respondents’
unexplained and inexcusable
delay
effectively
denies
Complainants
adequate time for
depositions
and document preparation
that
the
parties have
been ordered
to complete
by
November
30, 2008.
BACKGROUND
Anne McDonagh
and
David Fishbaum,
owners
of
a residence in Highland
Park, Illinios,
filed
a Complaint
in April of
2008 alleging that the
three air
conditioners
of the Respondents,
Richard and
Amy
Michelon,
violated the State
of Illinois Noise
Code (ref: 35 Ill.
Adm.
Code
35, Subtitle
H.)
Acoustic Associates
(Complainants’
Expert)
report found:
a. Noise is 18
decibels
higher
than allowed in
Illinois
at
night
(Sec. 901.102b).
b. Prominent Discrete
tone
is
present, making noise
additional
10 decibels over limit
(Sec.
901.106)
c. “Acoustic
beating characteristic”
“exacerbates
the nuisance.”
[See Expert
Report,
Appendix
A]
Complainants’
Expert’s
Report was delivered
to
Respondents
with Complaint
on April
15,
2008.
Once PCB accepted
the case for hearing,
Respondents
specifically requested
the
right
to
enter the
Complainants’ property
to take their own
Expert
readings. Complainants
timely
granted permission
for
Respondents
to
enter property
to take
readings. [See
Complainants’
Signed Response,
Appendix
B]
Both parties
were Ordered
by the Hearing
Officer
to
report
Expert findings
to the other
party
by
October
15,
2008. All
Depositions were
ordered
cc*npleted
by November
30, 2008.
[See
Hearing Officer’s
9/11/08 Order,
Appendix
C]
The very same
day that Hearing
Officer Bradley
Halloran entered
his Order,
Complainants
sent a
letter
to
Respondents
listing many dates
suitable for
acoustical testing on
Complainants’
property
prior to Order’s
expert disclosure
deadline.
[See
9/11/08
Letter,
Appendix
D]
CURRENT
SITUATION
Despite
Complainants
reminders
and granting
of permission
for
testing,
Respondents
have
failed
to conduct
any
tests,
disclose
any expert
opinions,
or
produce
any expert
report.
They
did
not
request
an extension
of time
from
the
Hearing
Officer.
Nor
did
they
ever
contact
Complainants’
to
notify
them
that
testing
would
be done.
Now
that
the
weather
is turning
cold,
Respondents’
Air
Conditioners
seem
to
be turned
off
for
the season
and
any
testing
could
not
fairly
represent
warm
weather
levels
of
activity
and
noise.
While
Respondents
have
submitted
the
resume
of
an
individual
in
Indiana,
that
is
the
extent
of
their
“Expert”
information.
They
have
not disclosed
a
single
expert
opinion,
despite
knowing
full
well
that
the
Hearing
Officer
had
mandated
October
15th
as
the
due
date
for
all expert
disclosures.
Respondents
have
been
aware
of
the
need
to conduct
their
own
testing
and
retain
an expert
(if they
chose
to
contest
this
case)
since
April
15, 2008,
when
they
were
served
with
the
complaint.
That
is a
full
six months
before
the Hearing
Officer’s
Order’s
October
15,
2008
deadline
for full
expert
disclosures.
That
was
more
than
adequate
time
for
testing
and
an
assessment
to
take
place.
The
air
conditioners
were
turned
on
within
hours
of the
Respondents
being
served
with
the
complaint
(April
15,
2008)
and
were
running
until
at
least
October
10,
2008.
REQUEST
Due
to the
Respondents’
failure
to
produce
this
report--stalling
this
case
and
ignoring
a
written
order
of the
Hearing
Officer—we
respectfully
ask the
PCB
to bar
Respondents
from
submitting
an
expert
report
or
allowing
the expert
to
testify
at
the
hearing.
David
J. Fishbaum
9,2-R
Respectfully
sui
Anne
McDonagh
Date
APPENbIX
A
Acoustic
Associates,
Ltd.
I III
IIIIItlIIIiiiiiiniim
iiiiiiiiiiIIII I I I I
I I
I I
Specialists
in Hearing
and Acoustics
1278 W.
Northwest
Hwy - Suite
904,
Palatine, Illinois
60067
Tom Thunder,
AuD, FAAA, INCE
- Principal
Office: 847-359-1068
•
Fax:
847-359-1207
Roger Harmon,
BSEE, PE
- Acoustical Engineer
Website:
wwwAcousticAssoiares.com
Steve
Hallenbeck, AuD,
FAAA — Audiologist
E-mail: infoll)AcousticAssociatesomc
Steve Thunder,
BSE Cand.
— Engineering
Intern
June
8th, 2007
Anne
McDonagh
1464
Linden
Ave.
Highland
Park, IL 60035
Re:
Noise Emissions
Dear
Mrs. McDonagh:
This
letter reports the
fmdings
of our
recent noise
assessment
of the A/C
units next to your
property.
As you
asked we have
assessed this noise
relative to the
State of Illinois
noise code (ref:
35 Ill.
Adm.
Code
Subtitle H).
Under this code,
your residence is
classified as Class
A
(residential)
land
and the
neighboring home from
which
the
noise is emitting
is also classified as
Class A (residential)
land.
Since
the
measurements
were taken
at
approximately
11:30 AM, the
applicable code
here is
Section
901.1 02a which pertains
to residential
noise radiated
to another
residential
property during
daytime
hours
(7am — 10pm).
Although the
limits are specified
in each of nine
octave
frequencies,
the
overall
(total) limit often used
for simple
monitoring purposes
is 55
dBA.
Also, it was found that
there
was
a
Prominent Discrete
Tone.
Accordingly,
Section 901.106
of the code also
applies.
This
applies
a -10 dB
correction to
the frequency at which
the tone occurs.
To
conduct
our study, we set up
our
equipment
next to the house that
was being
disturbed, 25
ft from
the
source. Our
equipment
consisted of a high
precision sound
level meter connected
to
a
digital
recorder. A
calibration
tone was placed on the
recording so that
the
recording
could be accurately
analyzed
in
our
laboratory.
The
recording
began around
11:30
AM on Tuesday,
May 29, 2007.
Our
intern
was
on site
documenting
his recordings
and observing
acoustic surroundings.
It was
indicated
that
the
noise being
recorded
at
the time
as representative,
although
it was
even louder
on other
occasions.
In our
lab analysis,
we generated
1/3-octave and
octave
frequency
spectra. The
1/3-octaves were
used
to
determine the
presence
on
a Prominent
Discrete Tone, as required
by IL code. And
the octave bands
were
used to
present the data in
a
simplified
form. The resultant
octave band frequency
spectrum is
shown
in FIGURE
1. The
overall
level of this spectrum
is 57 dBA. As
seen in
the
figure, the
octave
level
at 250 Hz (65
dB) far exceeds
the
Illinois
daytime
limit of
57 dB,
as well as the nighttime
limit
of
47 dB.
Furthermore,
when the daytime
limit
is
corrected
for the presence
of the prominent
discrete
tone
(-10 dB), it exceeds
the
allowable
limit by 18 dB.
It is also necessary
to correct
the
levels
due
to
background
noise. In
this case the correction
was
0 dB. As
shown in
FIGURE
1, the background
noise
is far
below
the
measurement
level
(greater
than 10 dB) at
250 Hz.
-
Anne McDonagh: Noise Emissions
June
8th, 2007
Figure 1-NC Noise
There are a
total of 3 A/C units. But at the time of the
measurement,
there
was only one unit
running.
The
second unit was the same
as
the first,
so a 3 dB increase in the noise level can be expected
when
the second unit is running
at the same time as the first unit. The
3
rd
unit,
however,
was not the
same
as
the other two. Therefore, an increase in the
noise
when all three units run
is
likely,
but we
can not
predict
by
how much. At the time
of the test, it was 80 degrees outside and
the
units were
determined
to have about a 50% duty (on-off) cycle after
an hour of measurement /observation. On
hotter days
it
can be assumed that the duty cycle will
increase therefore increasing the noise.
During
the
measurements one unit ran
part of the time and two units ran part
of the time. Therefore, data
from
only one unit running was taken and then extrapolated
to an equivalent of a 1-hour measurement.
The character
of this noise can also
contribute to the nuisance. In addition to
the
annoyance
of
the tonal
quality of the noise, there is also an acoustic beating
characteristic where the level of
the hum
oscillates. This characteristic exacerbates the
nuisance. The beating is ljkely caused
by the
2
A/C
units
running at nearly the
same
speed creating the beating effect.
Note, that there is no beating
when
just
one
unit is running.
I hope this
report meets
your
expectations in addressing this
noise issue.
We
appreciate the
opportunity
of
working with you and ask
that
you
call
us
if
you have any questions.
Sincerely,
Steve
Thunder
Purdue
University Acoustical Engineering Intern
Reviewed by,
Tom
Thunder, AuD, INCE
Acoustical Engineer and Audiologist
Frequency, Hz
A rniicti
A cnnitc T .tgI
Pna
7
APPENbIX B
Anne
McDonagh
David
Fishbaum
1464
Linden
Avenue
Highland
Park,
IL
60035
Suite
350
500
Skokie
Boulevard
Northbrook, Illinois
60062
Telephone
(847)
849-4800
Facsimile
(847)
205-9444
www.wiczerzelmar.com
0
t-of-
-1U’I’
Pursuant
to
Mr.
Halloran’s
Order
I
am
proposmg
the
following
discovery
6Qvrs
/
1.
Written
discovery to
be
propounded on
or
before
Mtit
2008;
2.
Expert
disclosures
to
be
completed by
October
15,
2008;
and
3.
All
depositions
to
be
completed by
November 30,
2008.
In
addition,
based
on
the
State
of illinois
testing
standards,
measurements
by
our
clients’
expert
are required
to
be
taken
from
your
property.
Please
let
me
know
if
you
have
any
objection
to
our
expert
entering
on
to
your
property for
the
limited
purpose
of
taking
the
required
measurements.
If
you
have
no
objection to
the
foregoing,
please
sign
a copy
of
this
letter
-
acknowledging
your
agreementthat
I
will
submit
this
letter
as part
of
our
discovery
plan.
Thank
you.
fo
yc-obQ
WIczER
&
ZELMAR,
LLC
ATrORNEYS
AT
LAW
fl:
1Ltc
1!(it
Jcze
-flD
Jiw&Yd
BERNARD WICZER
MICHAEL A.
ZELMAR
EWOT
S. WK2ER
TRESSA
A.
PANKOVITS
JOHANNAH K.
HEBL*
*Admifld
in
Wisconsin
/.3ifoB
±
I:9/l/:1
c?e[
‘August
14,
2008
Re:
McDonagh
& Fishbaum
v.
Michelon
Dear
Ms.
McDonagh
and
Mr.
Fishbaum:
schedule:
j
Oct1
-r
ryot-
ESW:hr
(j4&&
&c
en
AGREED:
APPENbIX C
ANNE
MCDONAGH
and
DAV11)
FISHBAUM,
Complainants,
V.
Respondents.
)
)
)
)
)
PCB
08-76
)
(Citizens
Enforcement
— Noise)
)
)
)
)
)
)
HEARING
OFFICER
ORDER
On
September 11,
2008,
all
parties
participated
in
a
telephonic
status
conference
with
the
hearing
officer.
The
complainants
represented
that
discovery
is
proceeding.
The
agreed
discovery
schedule
is
as
follows.
Written
discovery
must
be
propounded
on
or
before
September
5,
2008.
Expert
disclosures
must
be
completed
on
or
before
October
15,
2008.
All
depositions
must
be
completed
on
or
before
November 30,
2008.
Complainant has
agreed
to allow
respondents
expert
witness
access
to
their
property
for
completion
of
sound
measurements.
The
parties
or their
legal
representatives
are
directed
to
appear
at a
telephonic
status
conference
with
the
hearing
officer
on
November
13, 2008,
at 9:00
a.m.
The
telephonic
conference must
be initiated
by
the
complainant,
but
each
party
is
nonetheless
responsible
for
its
own
appearance.
At
the
conference
the parties
must
be
prepared
to
discuss
the
status
of
the
above-captioned
matter
and
their
readiness
for
hearing.
IT IS
SO
ORDERED.
Bradley
P.
Halloran
Hearing
Officer
Illinois
Pollution
Control
Board
James
R.
Thompson
Center,
Suite
11-500
100
W.
Randolph
Street
Chicago,
Illinois
60601
312.814.8917
ILLINOIS
POLLUTION
CONTROL
BOARD
September 11,2008
RECEVE
CLERKS
OFFICE
SEP
11
2008
STATE
OF
fLU
P1ltjn
Control
Bürr
RICHARD
and
AMY
MICHELON,
c?
2
CERTIFICATE
OF SERVICE
It
is hereby
certified
that
true copies
of the foregoing
order
were
mailed,
first
class, on
September
11, 2008,
to
each
of
the persons
on
the
attached
service
list.
It
is hereby
certified
that
a true
copy
of the foregoing
order
was hand
delivered
to
the following
on September
11, 2008:
John
T.
Therriault
Illinois
Pollution
Control
Board
James
R.
Thompson
Center
100
W.
Randolph
St.,
Ste.
11-500
Chicago,
Illinois
60601
Bradley
P. Halloran
Hearing
Officer
Illinois
Pollution
Control Board
James
R. Thompson
Center
100 West
Randolph
Street,
Suite 11-500
Chicago,
Illinois
60601
312.814.8917
3
PCB
2008-076
PCB
2008-076
David
Fishbaum
Amy
Michelon
Anne
McDonagh
& David
Fishbaum
Richard
Michelon
1464
Linden
Avenue
1474
Linden
Avenue
Highland
Park,
IL
60035
Highland
Park, IL
60035
PCB
2008-076
Elliot
S. Wiczer
Wiczer
& Zelmar,
LLC
500
Skokie
Blvd.
Suite
350
Northbrook,
IL
60062
APPENbIX
b
Anne Mc9onagh
and 9ad Rshbaum
/
1464
Unden
Avenue
—ijig
j
/
í(
/
Highland
Park. II.
6005
I
LI
Septemberll,2008
Elliot
Wiozer
Wiczer
S Zelmar liC
500
Skokie
Ivd., Suite
50
Northbrook
II. 60062
Mr.
Wiczer:
/ii
We
gave our
approval
August
0,
2008
for
your
expert to enter
our property for the purpose
of testing the
noise.
I
asked to be notified in
advance so I
can
be present
during the testing.
I
am
home
a
lot so this
should
not
be
cumbersome.
We will
be
home and
available for testing
to be done
oti
Friday,
Sept.
I
2
m
and all of
next week
(Sept.
15-19.)
We
will
be traveling four
days
of the following week.
Monday
through
Thursday, Sept.22-25.
Friday,
Sept26Th
and Monday,
Sept.
29
m,
I will
be
at
home if testing
is scheduled.
eligious holidays for us
fall
on
Sept.SOm
and October 1 so
those days are not
good.
October
2-8th are
acceptable days for testing.
We will
again be travelling from
October 9th
through
to
October 15th,
so
the last
available date
for testing
would
be
Wednesday,
October
8.
I
can
be reached
at
841-4fl-6911
or at AnneMeQonaghcofri1cast.net
or via fax at
841-4fl-1
44 but
please call
to confirm
we have received
any
faxes sent.
57,cerelY.
Attachment 2
In
The
Matter
Of:
Complainants,
Respondents.
State
of Illinois
Pollution
Control
Board
James
R.
Thompson
Center
100
W.
Randolph
Street,
Suite
11-500
Chicago,
Illinois
60601
)
)
)
PCB
08-76
)
)
(Citizens
Enforcement
—
Noise)
)
)
)
)
NOTICE
OF
FILING
Bradley
P.
Halloran,
Hearing
Officer
Illinois
Pollution
Control Board
James
R.
Thompson
Center,
#11-500
100
W.
Randolph
Street
Chicago, IL
60601
PLEASE
TAKE
NOTICE
that
on
Novembe,
2008,
the
undersigied
filed
with
the
State
of
Illinois
Pollution
Control
Board,
Jar
R.
Thompson
Center,
100
W.
Randolph
Street,
Suite
11-500,
Chicago,
Illinois/I
60
Opyof
Respondents’
Motion
for
Extension
of
Time
and
Response
to
Motion
ô
copy
of kch
is
attached
hereto
and
served upon
you.
?,
\j
N
‘
/l
\
i1
11
Elliot
S.
Wiczer
WICZER
&
ZELMAR,
LLC
500
Skokie Boulevard,
Suite
350
Northbrook,
IL
60062
(847)
849-4800
Attrn-nuNc
CLRl4jb
DEC
0
1200
gJN
8o
18
)
)
Anne
McDonagh
&
David
Fishbaum)
1464
Linden
Avenue
)
Highland
Park,
IL
60035
)
V.
Richard
and
Amy
Michelon
1474
Linden
Avenue
Highland
Park,
IL
60035
TO:
Anne
McDonagh
and
David
Fishbaurn
1464
Linden Avenue
Highland
Park,
IL
60035
CERTIFICATE
OF
SERVICE
I,
Elliot
S.
Wiczer,
an
attorney,
on
oath
state
that
I
caused
a
copy
of
the
foregoing
Notice,
Response
and
Motion
for
Extension
of
Time
to
be
served
upon the
person(s)
named
above
by
depositing
the
same
in
the
Northbrook,
Illinois, before
5:00
p.m.
on
postage prepaid.
of November
26,
2008,
with
proper
2
State of Illinois
Pollution Control Board
James R. Thompson Center
100 W.
Randolph Street, Suite 11-500
DEC
012008
Chicago, Illinois 60601
OF
ILLINOIS
rol
Board
In
The
Matter Of:
)
)
Anne McDonagh
&
David Fishbaum)
1464
Linden
Avenue
)
Highland Park, IL 60035
)
)
Complainants,
v.
))
PCB2O
-1
)
Richard
and Amy Michelon
)
1474 Linden
Avenue
)
Highland Park, IL 60035
)
)
Respondents.
)
RESPONDENTS’
MOTION
FOR
EXTENSION OF TIME
TO
COMPLETE DISCOVERY
NOW COME the
Respondents, RICHARD and AMY MICHELON,
by
and
through their attorneys,
Wiczer
&
Zelmar, LLC, and for their Motion For Extension of
Time to Complete Discovery,
state as follows:
1.
On August 14, 2008, this
Hearing
Board
adopted the discovery schedule
agreed to
by
Claimants and Respondents. Exhibit 1.
2.
Both Claimants and Respondents issued written
discovery
and have since
answered written discovery.
3.
Respondents’ expert has been engaged and
is
currently working on
preparing a report and further testing on
the
site.
4.
The Claimants have filed a Motion to Bar suggesting that
the disclosure
of
Respondents’ expert has not been
made.
5.
The Respondents by this
motion are seeking additional time to supplement
their answers to interrogatories.
1
6.
The
Respondents will suffer no prejudice by
allowing
the
Respondents to
supplement
their interrogatories
by
providing the written
report containing the opinions
of the
expert.
7.
While Respondents’
expert has indicated that the report will be available
no
later than December 31, 2008, with
the holidays, the Respondents are seeking
that
the
expert report be
provided to the Claimants no later than
January
6,
2008.
8.
No trial date has been
set
in
this matter.
WHEREFORE,
the
Respondents, RICHARD and AMY MICHELON,
pray
this
Honorable Court enter an
order granting their Motion for Extension of
Time
to
supplement their answers to
interrogatories and for any other relief this Court
deems
just
and
fit.
Elliot S.
Wiczer
WICZER & ZELMAR, LLC
500 Skokie
Boulevard, Suite 350
Northbrook, IL 60062
(847)
849-4800
Attorney No. 37886
In their Answers to Interrogatories the Respondents specifically reserved
the right to
supplement their
intelTogatories
when
the report was
made
available by
their expert.
submitted,
2
Aug
27
08
10:2Ya
Hshbaum
—amny
p.’
&:
Mar’.
kt(o
UJc,zec
WIczER
&..
ZEUvI.AR,
LLC
Suite
350
ATTORNEYS
AT
LAW
500
Skokie
Boulevard
Northhrook.
Illinois
60062
BERNARD
WICZER
Telephone
(847)849.4800
MICHAEL
A.
ZELMAR
Facsimile
(847)
205-9444
EUJOTSWK2ER
TRESSA
A.
PANKOVITS
www.wiczerzelmar.com
JOHANNAN
K.
HEBL*
August
14,
2008
Anne
McDonagh
David
Fishbaum
1464
Linden
Avenue
Highland
Park.
IL
60035
Re:
MeD
onagh
&
Fishbaum
v.
Michelon
k
u€ce
Dear
Ms.
McDonagh
and
Mr.
Fishbaum:
-
o
c1LP
/)3-2
Pursuant
to
Mr.
Halloran’s
Order
I
am
proposing
the
following
discovery
schedule:
S
1.
Written
discovery
to
be
propounded
on
or
before
h
rrst,
2008;
2.
Expert
diclosures
to
be
completed
by
October
15,
2008;
and
3.
All
depositions
to
be
completed
by
November
30,
2008.
In
addition,
based
on
the
State
of
Illinois
testing
standards,
measurements
by
our
clients’
expert
are
required
to
be
taken
from
your
property.
Please
let
me
know if
you
have
any
objection
to
our
expert
entering
on
to
your
property
for
the
limited
purpose
of
taking
the
required
measurements.
If
you
have
no
objection
to
the
foregoing,
please
sign
a
copy
of
this
letter
acknowledging
your
agreementthat
I
will
submit
this
letter
as
part
of
our
discovery
plan.
Thank
you.
-r-w-
p
i
ft5
eU(S
?oi.t\b
be-
e
(o
e\jeL
Y1’.
*0
ôtU’
-Ec’-
ot
IJ
RSW:hr
S
j)
c
AGREED
Attachment 3
State
of Illinois
REcEIvE
Pollution Control
Board
CLERKIs
OFF,GED
100
W.
JamesRandolph
R. Thompson
Street, Suite
Center
11-500
DEC
vi
008
Chicago,
Illinois
60601
rOlIUt
STATE
OF
Controi
/LLINOIS
Soard
In The
Matter Of:
)
)
Arnie
McDonagh &
David
Fishbaum)
1464
Linden
Avenue
)
Highland
Park, IL 60035
)
)
Complainants,
)
. 7
v.
)
PCB2O
)
Richard
and Amy Michelon
)
1474
Linden
Avenue
)
Highland
Park,
IL
60035
)
)
Respondents.
)
RESPONDENTS’
RESPONSE
TO
CLAIMANTS’
MOTION TO BAR
EXPERT
DISCLOSURE
NOW COME the
Respondents,
RICHARD and
AMY MICHELON
(“Respondents”),
by and through their
attorneys,
Wiczer
&
Zelmar,
LLC,
and
for
their
Response to Claimants’,
ANNE
MCDONAGH and
DAVID
FISHBAUM,
Motion to Bar
Expert Disclosure,
state as follows:
1.
On or about August
14, 2008,
the parties
exchanged a discovery
schedule
in
the form of correspondence
drafted
by counsel for the
Respondents.
Exhibit 1 hereto.
2.
The parties
agreed
to the discovery
schedule set forth
therein and the
hearing officer adopted
the
schedule.
3.
Tn accordance
with the parties
Agreement,
the parties propounded
written
discovery
on or before
September
5, 2008.
4.
In accordance with the parties
agreement,
the
Claimants and the
Respondents timely answered
all written discovery.
5.
Contained in the
Respondents
Answers to Interrogatories, in fact, is the
name, address of Stuart Bagley, respondent’s
expert.
The Respondents provided a CV
of
Mr. Bagley as document bates number
70. A copy
of the Respondent’s
Answer
is
attached hereto as Exhibit B. Thus,
Respondents have
timely disclosed their expert as
required
by
the August 14, 2008,
discovery schedule.
6.
In
addition
the Respondents
reserved the right
to
supplement the
disclosure
by
producing
the written report
that was
not yet available when the disclosure
was
made.
7.
The rules of discovery are
designed to gamer compliance with discovery
nile orders and not to punish dilatory
parties. Blakey
v. Gilbane
Building
Corp., 303
Ill.App.3d 872 708 N.E.2d 1187, 1191
(
4
th
Dist. 1999).
8.
The Respondents
here have hardly
been dilatory. In fact in contravention
of
Supreme Court Rule 201(k) the
Claimants have
failed to attempt to garner compliance
by the Respondents in accordance with the
aforesaid nile. The Claimants
do
not suggest
that
they have fulfilled the requirements
of Supreme Court Rule 201(k)
and
therefore
their
Motion
to
Bar
is
premature.
9.
In
addition, as
a mitigating factor,
the Claimants and Respondents have
engaged in settlement discussions and as
of the date of the
filing of this
response,
continue
to
engage
in
such
discussions.
10.
Furthermore, even though
the Respondents have
fully
complied with
the
disclosure
requirement
of the discovery
scheduling letter, it should be noted that no
2
hearing
date has
been set and a supplement
to the discovery
disclosure of the
Respondents’ expert would not be untimely.
In addition, the Respondents have
filed a
motion
for
an extension of time to complete
any discovery, including depositions
and
supplement to
January
15,
2008.
11.
Thus, having
no
trial date
set there
is
no prejudice to
the
Claimants
by the
Hearing Board
allowing
for an extension
of
time
to answer and/or supplement discovery.
12.
However, there would be extreme
prejudice
to the Respondents if the
Hearing
Board
would not permit Respondents
to
provide the report of their expert.
13.
Thus,
based on the
foregoing, the Claimants’
motion should be denied.
WHEREFORE, the
Respondents,
RICHARD and AMY MICHELON,
pray this Honorable Court enter an order denying
the Motion to Bar and
for
any other
relief this Court deems just and fit.
Elliot
S.
Wiczer
WICZER
& ZELMAR, LLC
500 Skokie Boulevard, Suite 350
Northbrook, IL
60062
(847)
849-4800
Attorney No. 37886
submitted,
of Their Attorneys
3
Aug
21
U iU2a
Hsfloaum
1-amny
p_I
n:
ftr.
t(ot
UJczec
WICZER
& ZELMAR,
LLC
ATToRNEYs
AT
LAW
BERNARD
WI(2ER
MICHAEL
A.
ZELMAR
EUJOTS.
WK2ER
TRESSA
A.
PANKOVITS
JOHANNAH
I.
HEBL’
Suite
350
500
Skokie
Boulevard
Northl,rook.
Illinois
006Z
Telephone
(847)
849-4800
Facsimile
(847)
205-9444
www.wiczerzelrnar.com
Arnie
McDonagh
David
Fishbaum
1464
Linden
Avenue
Highland
Park,
IL
60035
August
14,
2008
schedule:
VJ
S’€
OU0
Pursuant
to Mr.
Halloran’s
Order
I am
proposmg
the
foflowmg
discovery
—
/
1.
Written
discovery
to
be propounded
on or
before
Aigtt
2008;
2.
Expert
diclosures
to
be
completed
by
October
15, 2008;
and
I
All
depositions
to be
completed
by
November
30, 2008.
AGREED:
Re:
McDonagh
&
Fishbaum
v.
Michelon
Dear Ms.
McDonagh
and
Mr. Fishbaum:
In
addition,
based
on
the
State of
Illinois
testing
standards,
measurements
by
our
clients’
expert
are
required
to be taken
from
your
property.
Please
let
inc
know
if
you
have
any
objection
to
our
expert
entering
on to
your
property
for
the
limited
purpose
of
taking
the
required
measurements.
If you
have
no
objection
to
the
foregoing,
please
sign
a
copy of
this
letter
acknowledgirig
your
agreement-that
I will
submit
this letter
as
part of
our
discovery
plan.
Thaik you.
ee
o
)edà’
40
5
ÔtLC
1&S
y
yours,
O
hot.\iczerm
ESW:hr
n
5i!*
CSk-LLJz;tJ
.‘ S
Jrvi
State
of Illinois
Pollution
Control
Board
James
R. Thompson
Center
100
W.
Randolph
Street,
Suite 11-500
Chicago,
Illinois
60601
In The
Matter
Of:
)
)
Anne McDonagh
&
David Fishbaum)
1464 Linden Avenue
)
Highland Park, IL 60035
)
)
Complainants,
)
v.
)
PCB 08-76
)
(Citizens
Enforcement — Noise)
Richard and
Amy Michelon
)
1474 Linden Avenue
)
HighlandPark,IL 60035
)
)
Respondents.
)
RESPONDENTS’ ANSWERS
TO INTERROGATORIES
NOW
COME the Respondents,
RICHARD
MICHELON and AMY MICHELON
(“Respondents”),
by
and through
their attorneys,
Wiczer
&
Zelmar, LLC,
and for their
Answers
to
the
Complainants, ANNE
MCDONAGH and DAVID
FISHBAUM
(“Complainants”) Jnterrogatories and pursuant
to Supreme Court Rule 213
state
as
follows:
I.
GENERAL RESPONSES
AND OBJECTIONS
1.
Respondents object to
Claimant’s intenogatoies
to the extent they call
for
information protected by
the attorney-client
privilege,
work-product immunity,
or
any
other
privilege or immunity.
Should Respondents
inadvertently provide
any information
protected
by
any such privileges or immunities,
such
disclosure
shall in no way be intended,
nor
should
it be construed, as a waiver of those
privileges
or immunities.
2.
The following
responses
are
submitted
subject to, and without in any way
waiving or intending
to
waive, the above objection,
as well
as:
(a)
the right to object to competency,
relevancy, materiality, privilege,
and
admissibility as evidence
for
any
purpose of any
of the responses
given or the
subject
matter
thereof
in any
subsequent proceeding in, or
the trial
of, this action or any action
or
proceeding;
(b)
the right to
object to other discovery
procedures involving
or
related
to
the
same subject matter as the interrogatories herein responded
to; and
(c)
the right at any time to
revise,
correct, add
to, or clarify any of the responses
set forth herein.
The following specific responses and objections
are expressly subject to, do
not
constitute a waiver
of, and
implicitly incorporate
all of the above general objections.
II.
ANSWERS TO INTERROGATORIES
1.
ANSWER:
Richard and Amy
Michelon
1474 Linden
Avenue
Highland Park,
IL 60035
Mr. and Mrs. Michelon have knowledge relating to
the air conditioning units, the
Claimants’
claims,
the work
performed
on Respondents’ air conditioning units to quiet
the units, the Zoning Board of Appeals hearing, all efforts
to
remediate the alleged
sound
emanating from the air conditioning units, generally
the allegations of Claimants’
Complaint,
Respondents’
Motion to Dismiss, and
Answer.
2.
ANSWER:
Stuart D. Bagley, MS
CIH CSP
IAQ
Services,
Inc.
11236 Harrington Street
Fishers,
11
46038-3208
2
CV
is
produced herewith.
Mr.
Bagley
has
yet
to
provide
a written
report. However,
the
Respondents
specifically
reserve
the
right
to
supplement
their
answer
to interrogatory
number
2
at
a later
date.
3.
ANSWER:
Respondents
object
to
interrogatory
number
3
as
vague
and
not
tending
to lead
to
relevant
admissible evidence.
4.
ANSWER:
To
the
extent that
there
is
information
to satisfy
interrogatory
number
4,
the
Respondents
have
provided
the
same
in
their
answer
to
Claimants’
request
for production
of
documents.
5.
ANSWER:
The
Respondents
object
to
interrogatory
number
5
as
vague
and
overbroad.
Further
answering,
the
Respondents
state
that
the
units
are
sited
plus
or
minus
13
V
2
feet
from
the
Claimants’
side
yard
setback.
The
units
are
each
approximately
5
tons.
6.
ANSWER:
The
Respondents
object
to
interrogatory
number
6
as
not
tending
to
lead
to
relevant
admissible
evidence,
vague
and
overbroad.
Notwithstanding
the
objection,
the
Respondents
state
that
they
do
not
know
how many
days
per
year
that
the
subject air
conditioners
are
turned
on,
the
unit
hours
of
operation,
their
cycle
frequency
and
duration.
The
Respondents
further state
that
they
are
not
experts
but
readily
believe
that
the
decibel
ratings
measured
at
the
units
are
65
decibels.
7.
ANSWER:
The
Respondents
object
to
interrogatory
number
7
as
said
interrogatory
calls
for
conclusions
of
law
and
therefore
said
interrogatory
cannot
be
answered
in
its
current
form.
3
8.
ANSWER:
The
Respondents
object
to
interrogatory
number
8
as
vague
and
overbroad
in
terms
of
the
word
“visits”.
Notwithstanding
said
objection,
the
Respondents
have
listened
to
the
air
conditioning
units
on
a number
of
occasions.
9.
ANSWER:
The
Respondents
have
not
occupied
the
residence
since
in
or about
May,
2007,
and
have
continuously occupied
the
residence
since
that
date.
10.
ANSWER:
The
Respondents
object
to
interrogatory
number
10
as
said
interrogatory
concludes
a fact
that
is
not
accurate.
11.
ANSWER:
The
Respondents
have
not
yet
determined
who they will
call
at
trial
but
reserve
the
right
to
supplement
interrogatory
number
11
at
a
later
date.
Respectfully
submitted,
RICHA1
MICHELON
and
AM
4I{ELON
By:’\.
\/\
Oi
‘
Their
Attorney.
\:
\[
Elliot
S.
Wiczer
WICZER
&
ZELMAR,
LLC
500
Skokie
Boulevard,
Suite
350
Northbrook,
IL
60062
(847)
849-4800
Attorney
No.
37886
4
Attachment 4
State
of
Illinois
Pollution
Control
Board
CEflvE
James
R.
Thompson
Center
CLERK’S
OFFICE
100
W.
Randolph
Street,
Suite
11-500
DEC
09
2008
Chicago,
Illinois
60601
http://www.
ipcb.state.
ii.
us!
In
The
Matter
Of:
Anne
McDonagh
&
David
Fishbaum
1464
Linden
Avenue
Highland
Park,
IL
60035
Complainant(s),
V.
Richard
and
Amy
Michelon
1474
Linden
Avenue
Highland
Park
IL
60035
Respondent(s)
)
NOTICE
OF
FILINGTO:
Eliot
Wiczer,
Wiczer
&
Zelmar,
500
Skokie
Valley
Road,
Suite
350
Northbrook
IL
60067
PLEASE
TAKE
NOTICE
THAT
ON
December
8, 2008,
THE
UNDERSIGNED
MAILED to
the
State
of
Illinois
Pollution
Control
Board,
James
R.
Thompson
Center,
100
W.
Randolph
Street,
Suite
11-500,
Chicago,
IL
60601,
a copy
of
Complainants’
Response
to
Respondents’
Motion
for
Extension
of
Time,
a
copy
of
and
served
upon
you.
CERTIFICATE
OF
SERVICE
)
)
)
)
)
)
)
)
)
)
)
PCB
2008
-
076
(For
Board
use
only)
I,
Anne
McDonagh,
do
state
that
I
have
sent
a
copy
of
this
Response
to
be
served
upon
the
persons
named
above
by
sending
it via
U.S.
Mail
2008.
1
State
of
Illinois
Pollution
Control
Board
James
R.
Thompson
Center
100W.
Randolph
Street, Suite
11-500
DEC
092008
Chicago,
Illinois
60601
OtIUtj
Control
Board
http://www. ipcb.state.il.
us!
In
The
Matter
Of:
)
Anne
McDonagh &
David
Fishbaum
)
1464
Linden
Avenue
)
Highland
Park,
IL
60035
)
)
Complainant(s),
)
)
v.
)
PCB
2008
- 076
Richard
and
Amy
Michelon
)
(For
Board
use
only)
1474
Linden
Avenue
)
Highland
Park
IL
60035
)
Respondent(s)
)
COMPLAINANTS’
RESPONSE
TO
RESPONDENTS’
MOTION FOR
EXTENSION
OF
TIME
Summary
Complainants
file
this
Response
to
Respondents’
Motion
for
Extension of Time
to
Complete
Discovery.
We
oppose
this
Motion
on the
grounds
that
Section
101.522 of Part
101
(Title
35,
Environmental
Protection,
Subtitle
A;
General
Provisions, Chapter
I:
Pollution
Control Board)
Motions
for
Extension
of Time
states:
“The
Board
or
hearing
officer,
for
good
cause
shown
on
a
motion
after
notice
to
the
opposite
party,
may
extend
the
time
for
filing
any
document
or
doing
any
act
which
is
required
by
these
rules
to
be done
within
a limited
period,
either
before
or
after
the
expiration
of
time.”
(Underline added.)
We
posit
that
the
Respondents
have
failed
to
show
good
cause,
or indeed,
any
cause,
for
this extension.
Neither
have
they
notified
the
Opposite
Party.
Third,
there
is
no documentation
provided
for
their
contention
that
measurement
is actually
in
process
at this
time.
Fourth,
testing
their
air
conditioning
system
in
freezing
temperatures
cannot
replicate
summertime
levels
of
usage
and
noise.
Finally,
their
proposed
schedule
adjustment
wIJI
truncate
the
amount
of
time
allowed
Complainants
to
prepare
for
and
complete
expert
depositions
to
one
week,
an
unreasonably
short
amount
of
time.
Detail
First,
Respondents
have
failed
to
supply
any
reason
for the
delay.
As
initial
Complaint
was
filed
on
April
15,
2008,
they
had
six
full
months
of
time
to
assess
noise
while
their air
conditioner
was
running.
There
was no
reason
they
could
not
complete
one
hour’s
worth
of
assessment
during
that
six-month
period.
Second,
they
have
failed
to
notify
us
that
they
were
seeking
an
extension.
Third,
their
filing
is
devoid
of
any
documentation
to
support
their
contention
that
the
Expert
has
been
hired
and
work
is
in
process.
There
has
been
no
testing
on
our
land
that
we
know
of
and
we
have
not
been
contacted
so
that
any
work
can take
place in
the
future.
Fourth,
their
air
conditioners
have
not
operated,
to
our
knowledge,
since
October
15,
2008.
From
years
of
suffering
from
this
noise,
we
have
learned
that
air
conditioners
operate
less
frequently
in
cooler
temperatures
so
it
is
unclear
how
Respondents
and
Expert
will
replicate
summer
levels
of
operation
in
freezing
temperatures.
As
air
conditioners
operate
much
more
frequently
in
hotter
temperatures,
any
testing
will not
replicate
summer-level
incidences
of
noise,
It
is
disingenuous
to
offer
data
from
December
as
a
representative
sampling
of
summertime
noise
incidents.
Fifth,
Complainants
are
confounded
by
the
dates
proposed
in
Respondents’
two
filings
of
November
26,
2008.
Respondents
seek
to
compress
the
time
allotted
to
Complainants
to
prepare
for
Deposition
of
Expert
to
one
week.
Respondents
propose
to
deliver
Expert
Report
“no
later
than
January
6,
2008.”
(item
#7,
Respondents’
Motion
for
Extension
of
Time
to
Complete
Discovery)
In
Respondents’
Response
to
Claimants
(sic,
Complainants?)
Motion
to
Bar
Expert
Disclosure,
Item
#10,
Respondents
state
they
have
“filed a
motion
for
extension
of
time
to
complete
any
discovery,
including
depositions
and
supplement
to
January
15,
2008.”
(sic)
As
Respondents
file
via
U.S.
Mail
on
delivery
dates,
Complainants
expect
to
receive
the
Expert
Report a
few
days
later.
So
that
would
allow
about
six-seven
days,
including
a
weekend,
to
review
said
report,
prepare
for
depositions,
and
depose
an
Expert
who
resides
outside
Indianapolis,
Indiana.
(The
abbreviated
schedule
is
not
immediately
apparent,
as
the
two
dates do
not
appear
together
in
one
document.)
REQUEST
In
light
of
these
issues,
the
Complainants,
Anne
McDonagh
and
David
Fishbaum,
ask
the
Hearing
Officer
to
enter
an
order
denying
Respondents’
Motion for
Extension
of
Time.
Respectfully
submitted,
cDonagh
Date
3$
State
of Illinois
Pollution
Control
Board
James
R. Thompson
Center
DEC
092008
STATE
OF
100W. Randolph
Street,
Suite 11-500
P0tb01)C0fltroISoa,d
Chicago,
Illinois 60601
http://www.ipcb.state.
il.us/
In The Matter
Of:
Anne McDonagh
&
David Fishbaum
1464
Linden Avenue
Highland Park, IL 60035
Complainant(s),
V.
Richard
and
Amy Michelon
1474
Linden
Avenue
Highland Park IL 60035
Respondent(s)
)
NOTICE
OF
FILING
TO:
Eliot
Wiczer,
Wiczer
&
Zelmar,
500
Skokie Valley
Road, Suite 350
Northbrook IL
60067
PLEASE
TAKE NOTICE
THAT
ON December 8, 2008,
THE
UNDERSIGNED
MAILED
to
the
State
of Illinois
Pollution Control
Board,
James R. Thompson
Center,
100 W. Randolph
Street,
Suite
11-500,
Chicago,
IL 60601, Complainants’
Motion for
leave
to
file attached
Reply
Memorandum
in
Support
of Complainants’ Motion
to Bar
Respondents’ Expert’s
Opinions, a
copy
of which
is
attached
hereto and served
upon you.
CERTIFICATE
OF
SERVICE
I, Anne
McDonagh,
do
state that
I
have sent a copy
of this Motion
and Reply to be
served
upon the
persons
named
abo
by
se
lail
on
December
8, 2008.
)
)
)
)
)
)
)
)
)
)
)
PCB 2008
- 076
(For
Board use
only)
Anne
McDonagh,
Complainant
State
of
Illinois
Pollution
Control
Board
DEC
092008
James
R.
Thompson
Center
STATE
OF
ILLJNQg
O(tion
cflf
100
W.
Randolph
Street,
Suite
11-500
Chicago,
Illinois
60601
http:Ilwww.
ipcb.
state.iI.
us!
In
The
MatterOf:
Anne
McDonagh
&
David
Fishbaum
)
1464
Linden
Avenue
)
Highland
Park,
IL
60035
)
Complainant(s),
v.
)
PCB
2008
-
076
Richard
and
Amy
Michelon
)
(ForBoarduse
only)
1474
Linden
Avenue
)
Highland
Park
IL
60035
)
Respondent(s)
)
COMPLAINANTS
MOTION
FOR
LEAVE
TO
FILE
REPLY
IN
SUPPORT
OF
COMPLAINANTS’
MOTION
TO
BAR
RESPONDENTS’
EXPERT
Complainants,
Anne
McDonagh
and
David
Fishbaum,
respectfully
make
this
motion to
the
Hearing
Officer,
pursuant
to
Section
101.500(e)
of
Title
35
of
the
Illinois
Administrative
Code,
to
allow
Complainants
leave
to
file
the
attached
reply
in
support
of
Complainants’
motion
to
bar
Respondents’
expert
from
testifying
or
filing
an
affidavit
about any
opinions
in
this
case.
The
attached
Reply
is
necessary
to
respond
to
several
errors
and
incomplete
statements
in
Respondents’
response
to
the
Motion
to
Bar.
It
is
also
important
to
stress the
ill
prejudice
that
would
be
caused
to
Complainants
if
Respondents
are
allowed
to
delay
these
proceedings
any
further
and
disclose
their
expert
opinions
after
the
deadline
that
they
agreed
to
and
which
was
approved
by
the
Hearing
Officer.
Respecifully
submitted,
Anne
McDonagh
David
Fishbaum
State
of
Illinois
Pollution
Control
Board
James
R.
Thompson
Center
100
W.
Randolph
Street,
Suite
11-500
Chicago,
Illinois
60601
http://wwwJpCb.State.il.
us!
InTheMatterOf:
Anne
McDonagh
&
David
Fishbaum
)
1464
Linden
Avenue
)
Highland
Park,
IL
60035
)
)
Complainant(s),
)
v.
)
PCB
2008
- 076
Richard
and
Amy
Michelon
)
(For
Board
use
only)
1474
Linden
Avenue
)
Highland
Park
IL
60035
)
Respondent(s)
)
COMPLAINANTS’
REPLY
IN
SUPPORT
OF
COMPLAINANTS’
MOTION
TO
BAR
RESPONDENTS’
EXPERT
Complainants,
Anne
McDonagh
and
David
Fishbaum,
have
filed
a
Motion
to
Bar
Respondents’
expert
to
avoid
material
prejudice
to
their
rights
in this
case,
arising
from
the
Respondents’
failure
to
deliver
their
expert
report as
required
by
the
Hearing
Officer’s order
dated
September
11th, 2008
(see
Appendix
A).
Complainants
request
the
Hearing
Officer
to
grant
their
Motion
to
Bar.
1
RESPONDENTS
WERE
REQUIRED
TO
DISCLOSE
THEIR
EXPERT’S
OPINIONS
AND
REPORT
BY
THE
OCTOBER
15,
2008
DEADLINE
Both
parties
were
ordered
by
the
Hearing
Officer
to
make
complete
expert
disclosures
to
the
other
party
by
October
15,
2008.
All
Depositions,
including
experts,
were
ordered
completed
by
November
30,
2008.
[See
Hearing
Officer’s
9/11/08
Order,
Appendix
A].
On
September
5,
2008,
Complainants
hand-delivered
requests
for
documents
and
interrogatories
to
the
office
of
Respondents’
counsel.
[Appendix
B].
Complainants’
document
request
no.
8
requested:
Respondents’
expert’s
report
on
the
subject
air
conditioner
units’
sound
emissions,
and
all
data
and
scientific
works
relied
upon
by
respondents’
expert,
and
any
information
about
respondents’
expert’s
professional
background
and
qualifications.
The
Respondents
failed
to
produce
any
expert
report
or
data
and
scientific
works
relied
upon
by
their
expert.
Complainants’
interrogatory
no.
2
asked
respondents
to
“[ildentify
respondents’
expert(s),
describe
their
professional
background
and
qualifications,
and
state
their
opinions.”
Respondents’
answer
to
this
interrogatory
provided
the
name
and
address
and
a
CV
of
their
expert,
but
no
opinions.
Instead,
the
answer
stated
that
Respondents’
expert
“has
yet
to
provide
a
written
report.”
Respondents
try
to
make
much
of
their
answer’s
statement
that
“Respondents
specifically
reserve
the
right
to
supplement
their
answer
to
interrogatory
answer
number
2
at
a
later
date.”
Whatever
right
Respondents
might
have
to
supplement
their
answer
does
not
empower
them
to
ignore
and
disobey
a
Hearing
Officer
order
deadline
for
disclosure,
nor
allow
them
to
avoid
a
Motion
to
Bar.
On
this
issue,
the
Hearing
Officer
may
take
guidance
from
Supreme
Court
Rule
213(f)(3)
which
describes
expert
witness
disclosure
information:
Controlled
Expert
Witnesses.
A
“controlled
expert
witness”
is
a
person
giving
expert
testimony
who
is
the
party,
the
party’s
current
employee,
or
the
party’s
retained
expert.
For
each
controlled
expert
witness,
the
party
must
identify:
(i)
the
subject
matter
on
which
the
witness
will
testify;
(ii)
the
conclusions
and
opinions
of
the
witness
and
the
bases
therefor;
(iii)
the
qualifications
of
the
witness;
and
(iv)
any
reports
prepared
by
the
witness
about
the
case.
Illinois
Supreme
Court
Rule
213(f)(3)
(2008).
Based
on
the
Hearing
Officer’s
order,
the
interrogateries
and
document
requests
of
each
party,
and
the
Illinois
Supreme
Court
Rule,
Respondents
should
have
known
that
they
were
required
to
make
a
complete
expert
disclosure,
including
their
expert’s
opinion
and
report,
by
October
15,
2008.
It
is
misleading
for
Respondents
to
assert,
in
the
last
sentence
of
paragraph
5
of
their
response
to
the
Motion
to
Bar,
that
by
merely
providing
their
expert’s
name
and
address
and
CV,
“[t]hus,
Respondents
have
timely
disclosed
their
expert
as
required
by
the
August
14,
2008
discovery
schedule”
and
to
fail
to
mention
that
the
October
15,
2008
deadline
for
complete
expert
disclosures
in
the
parties’
agreed-to
schedule
was
made
an
integral
part
of
the
Hearing
Officer’s
September
11,
2008
Order.
Thus,
it
is
indisputable
that
Respondents
were
required
to
disclose
their
expert’s
opinions
and
report
by
October
15,
2008.
It
is
also
beyond
dispute
that
they
failed
to
do
so,
without
any
explanation,
justification,
or
request
for
extension
before
the
deadline
passed.
The
Complainants
filed
a
Motion
to
Bar
Expert
due
to
Respondents’
inexcusable
delay,
which
if
condoned,
will
greatly
prejudice
Complainants’
rights.
THE
HEARING
OFFICER
HAS
AUTHORITY
TO
BAR
RESPONDENTS’
EXPERT
Contrary
to
Respondents’
contention,
the
Complainants
have
not
filed
their
Motion
to
Bar
the
Respondents’
expert
witness
report
as
some
kind
of
punishment
or
penalty
for
Respondents’
failure
to
comply
with
the
discovery
schedule,
but
as
the
only
remedy
to
avoid
prejudice
to
the
Complainants,
from
Respondents’
violation
of
the
very
disclosure
deadline
that
the
parties
agreed
to
and
which
was
incorporated
into
the
Hearing
Officer’s
September
11,
2008
order.
Time
is
of
the
essence
to
the
Complainants.
They
have
suffered
three
years
of
excessive
noise
and
don’t
want
to
have
to
suffer
another
year.
The
Complainants
foresee
that
the
delays
of
the
Respondents
will
take
the
parties
into
another
air
conditioning
season
before
a
final
outcome
is
determined.
And
if
that
decision
is
made
in
favor
of
the
Complainants,
the
Respondents
will
likely
argue
hardship
at
that
point
in
time
(suffering
the
heat
of
a
Highland
Park
summer)
which
evidence
shows
begins
in
April
for
the
Respondents
and
so
won’t
be
able
to
implement
a
solution
until
the
winter
of
2009.
The
Hearing
Officer
may
take
guidance
from
Illinois
Supreme
Court
Rule
219(c)
that
allows
the
barring
of
a
party’s
expert
report
as
remedy
or
a
sanction.
The
Rule
states:
If
a
party
.
.
.
fails
to
comply
with
any
[discovery]
order
entered
under
these
rules,
the
court,
on
motion,
may
enter,
in
addition
to
remedies
elsewhere
specifically
provided,
such
orders
as
are
just,
including,
among
others,
.
.
.
[tjhat
a
witness
be
barred
from
testifying
concerning
that
issue.
Illinois
Supreme
Court
Rule
219(c)(iv)
(2008).
In
paragraph
7
of
their
response
to
the
Motion
to
Bar,
Respondents
cite
a
court
opinion
from
a
Champaign
construction
lawsuit,
Blakey
v.
Gilbane
Building
Corp.,
saying
that
the
rules
of
discovery
are
“not
to
punish
dilatory
parties.”
In
that
case,
the
judge
had
thrown
plaintiff’s
case
out
of
court
as
a
sanction
for
not
disclosing
a
prior
hospitalization,
which
had
occurred
five
years
before
the
accident
that
he
sued
over,
in
an
interrogatory
answer
about
his
medical
history.
The
appeals
court
said
that
“an
order
of
dismissal
with
prejudice
or
a
sanction
that
results
in
a
default
judgment
is
a
drastic
sanction
to
be
invoked
only
in
those
cases
where
the
party’s
actions
show
a
deliberate,
contumacious,
or
unwarranted
disregard
of
the
court’s
authority.”
Blakey
v.
Gilbane
Bldg.
Corp.,
708
N.E.
2d
1187,
1191(111.
App.
Ct.
4th
Dist
1999).
The
case
at
bar
is
a
very
different
case
from
the
Blakey
case.
Complainants
are
not
asking
for
a
default
judgment
against
Respondents.
Respondents
will
still
have
the
opportunity
to
have
their
lawyer
cross-examine
Complainants’
expert
at
the
hearing.
Unlike
Respondents,
Complainants
did
provide
their
expert’s
report,
and
opinions,
and
the
bases
of
his
opinions
on
April
15,
2008,
long
before
the
October
15,
2008
deadline.
Respondents
have
had
the
opportunity
to
review
those
opinions
and
the
report
with
their
own
expert
to
prepare
to
cross-examine
Complainants’
expert
at
the
hearing.
Complainants
have
been
denied
that
opportunity
and
right
by
Respondents’
failure
to
abide
by
the
Hearing
Officer’s
order.
The
Complainants
are
not
looking
to
punish
Respondents,
but
to
protect
their
rights
to
an
orderly
and
timely
litigation
process.
The
remedy,
barring
Respondents’
expert,
is
commensurate
with
the
Respondents’
misconduct,
willfully
violating
an
order
that
was
intended
to
safeguard
Complainants’
right
to
prepare
to
cross-examine
Respondents’
expert
at
the
hearing.
The
deadline
was
set
for
October
15,
2008
not
arbitrarily,
but
as
an
important
date
to
enable
the
trial
to
proceed
to
a
decision
well
before
the
next
air-conditioning
season.
Rule
201(k)
Is
No
Defense
for
Respondents’
Disobedience
of
the
Order
It
is
unreasonable
for
the
Respondents
to
argue
that
Complainants
have
not
complied
with
Supreme
Court
Rule
201(k).
An
agreed
to
discovery
schedule
is
included
in
the
Respondents’
reply
and
there
was
a
follow-up
letter
to
Respondents’
attorney,
September
11,
2008
reminding
him
of
the
days
his
expert
could
come
on
Complainants’
property
(see
Appendix
C).
So
even
if
Rule
201(k)
applies
to
the
deadline
order,
Complainants
satisfied
the
letter
and
spirit
of
the
rule
by
going
out
of
their
way
to
try
to
get
the
Respondents
to
meet
the
deadline.
Complainants
Will
Be
Prejudiced
If
Respondents’
Expert
Is
Not
Barred
Respondents
state
that
because
no
trial
date
has
been
set,
there
is
no
prejudice
to
the
Complainants.
This
is
not
true.
The
Complainants
have
suffered
three
years
of
excessive
noise.
If
the
Hearing
Officer
does
not
enforce
his
Order’s
expert
disclosure
deadline,
then
it
is
likely
the
Complainants
will
have
to
suffer
another
year
of
these
excessively
noisy
air
conditioners,
even
if
the
PCB
rules
in
their
favor.
Additional
prejudice
can
be
seen
the
Respondents’
new
suggested
schedule;
their
expert
report
would
be
due
January
6,
2008
(sic)
(we
assume
what
is
meant
is
2009
and
not
2010),
Respt.’s
Mot.
Extension
Time
¶7
(Nov.
26,
2008),
and
the
end
of
the
depositions
would
be
January
15,
2008
(sic),
Respt’s
Response
Complainants
Mot.
Bar
¶10
(Nov.
26,
2008).
So
whereas
the
Respondents
will
have
seven
months
to
review
Complainants’
expert
report,
the
Respondents
provide
Complainants
nine
days
in
total
to
review
their
expert’s
report
and
to
depose
him.
(It
should
be
noted
that
the
expert
resides
in
Indiana.)
This
is
prejudicially
unfair
to
the
Complainants.
The
Illinois
Supreme
Court
states
that
“(w)here
it
becomes
apparent
that
a
party
has
willfully
disregarded
the
authority
of
the
court,
and
such
disregard
is
likely
to
continue,
the
interests
of
that
party
in
the
lawsuit
must
bow
to
the
interests
of
the
opposing
party.”
Sander
v.
Dow
Chem.
Co.,
651
N.E.2d
1071,
1081
(Ill.
Sup.
Ct.
1995).
The
Respondents’
expert
c
report
was
due
October
15,
2008
under
the
Hearing
Officer’s
September
11,
2008
order.
Respondents
ignored
Complainants’
letter
to
their
counsel
trying
to
schedule
a
date
for
Respondents’
expert
to
enter
on
Complainants’
property
to
conduct
noise
testing
so
that
Respondents
would
timely
comply
with
the
deadline.
Respondents
did
not
trouble
themselves
to
ask
for
an
extension
before
the
October
15
deadline,
even
though
they
knew
it
was
going
by.
it
is
now
almost
two
months
after
the
ordered
deadline,
and
the
Respondents
have
not
even
bothered
to
make
a
good
faith
effort
to
rectify
the
situation
by
attaching
a
completed
expert
report
with
their
response
to
the
Motion
to
Bar.
Instead
they
now
ask
for
seven
more
weeks
of
time
without
even
providing
the
Hearing
Officer
with
any
explanation
of
any
kind
for
the
delay.
Respondents’
intentional
delays
are
willful
and
unjustified,
although
consistent
with
their
long-standing
indifference
to
the
harm
they
have
been
inflicting
on
their
next-door
neighbors.
The
test
is
not
complicated
(involving
about
two
hours
worth
of
work)
and
the
Respondents
had
many
months
during
the
air
conditioning
season
in
which
to
complete
the
testing,
as
Complainants
encouraged
them
to
do
Having
squandered
all
that
time
for
no
good
reason,
the
Respondents
are
now
asking
for
permission
to
complete
their
test
of
the
air
conditioners
during
the
coldest
time
of
the
year.
Clearly,
the
Respondents
have
willfully
disregarded
the
Hearing
Officer’s
authority
and
the
integrity
of
the
discovery
process.
If
their
misconduct
is
condoned
they
will
simply
do
it
again
in
the
future.
Severe
prejudice
to
Complainants
can
only
be
avoided,
and
Respondents
deterred
from
future
misconduct
in
these
proceedings,
by
imposition
of
a
Rule
219(c)
sanction
that
is
exactly
commensurate
with
Respondents’
violation
of
the
discovery
rules
and
the
complete
expert
disclosure
deadline
in
the
September
11,
2008
order.
If
parties
willfully
fail
to
disclose
an
expert’s
opinions
and
the
bases
for
the
opinions,
and
his/her
report,
they
should
be
barred
from
using
that
expert
or
his/her
opinions
in
the
case.
(2
Recent
Settlement
Discussions
Between
the
Parties
are
No
Defense
for
Respondents’
Violation
of
the
October
15,
2008
Disclosure
Deadline.
It
is
true
that
the
Complainants
and
Respondents
have
recently
engaged
in
settlement
discussions
but
the
Complainants
don’t
view
this
as
a
reason
not
to
accept
the
motion.
After
two
years
of
attempts
by
the
Complainants
to
resolve
this
issue
out
of
court,
the
Respondents’
first
response
to
settlement
came
after
receiving
the
fiJing
of
the
Motion
to
Bar.
Complainants
have
always
been
willing
to
work
out
an
amicable
resolution
and
will
always
be
willing
to
do
that,
even
if
Complainants
win
this
case.
But
if
Respondents’
defiance
of
the
rules
and
the
Hearing
Officer’s
deadlines
are
condoned
and
the
litigation
schedule
is
allowed
to
drift,
there
will
be
no
impetus
for
Respondents
to
ever
reach
an
amicable
settlement.
REQUEST
In
summary,
delay
of
the
whole
litigation
process
is
very
prejudicial
to
the
Complainants
need
to
have
a
final
decision
before
the
next
air
conditioning
season
(which
for
the
Respondents
begins
in
April)
and
that
still
allows
the
Respondents
time
to
make
any
necessary
modifications.
The
Complainants
don’t
view
the
motion
to
bar
as
punishment
but
as
a
request
for
the
Hearing
Officer
to
maintain
an
orderly
and
timely
litigation
process.
If
the
motion
is
viewed
as
a
Rule
219(c)
sanction,
there
is
enough
evidence
to
justify
one.
Due
to
the
Respondents’
failure
to
produce
this
report,
we
respectfully
ask
the
Hearing
Officer
to
bar
Respondents
from
submitting
an
expert
report
or
allowing
the
expert
to
submit
an
affidavit
or
testify
at
the
hearing.
Respectfully
Anne
McDonagh
L/
‘t/o5
David
Fishbaum
7
Appendix
A
2
ILLINOIS POLLUTION CONTROL BOARD
September
11, 2008
ANNE MCDONAGH and
DAVID
)
FISHBAUM,
)
)
Complainants,
)
)
PCB 08-76
v.
)
(Citizens
Enforcement
— Noise)
)
RICHARD and AMY MICHELON,
)
)
Respondents.
)
)
)
HEARING OFFICER ORDER
On
September 11, 2008, all parties participated in
a
telephonic status conference
with the hearing
officer. The complainants represented that discovery is proceeding.
The
agreed discovery schedule is as follows. Written discovery must be propounded on
or
before
September
5, 2008. Expert disclosures must be completed on or before October
15, 2008.
All depositions must be completed on or before November
30,
2008.
Complainant has agreed to allow respondents expert witness access to their property
for
completion of sound measurements.
The parties
or their legal representatives are
directed to appear at a telephonic
status conference
with
the
hearing
officer on November 13, 2008, at 9:00 a.m. The
telephonic
conference must be initiated
by
the complainant,
but
each party is nonetheless
responsible for its own appearance. At the conference the
parties must be prepared to
discuss
the status of the above-captioned matter and their readiness for hearing.
IT IS SO
ORDERED.
Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500
100 W. Randolph Street
Chicago, Illinois 60601
312.814.8917
2
CERTIFICATE OF SERVICE
It is hereby certified that true copies of the foregoing order were mailed, first
class, on
September 11, 2008, to each
of the
persons
on the
attached service list.
It is hereby certified that a true copy of the foregoing order was hand delivered to
the following on September 11, 2008:
John T. Therriault
Illinois Pollution Control Board
James
R. Thompson Center
100W. Randolph St., Ste. 11-500
Chicago, Illinois 60601
Bradley P. Halloran
Hearing
Officer
Illinois
Pollution Control Board
James
R. Thompson Center
100 West Randolph Street, Suite 11-500
Chicago, Illinois 60601
312.814.8917
Appendix B
Anne
McVonagb
and
Pavid
Flshbavm
1464
Linden
Avenue
Highland
Failc
IL
6005
September
5;200*
Elliot
Wiezer
WiozerSZelmarLLC
500
Skokle
blvd.,
Suite
S50
NortlibrookiL
60062
e
MoPonagh
Fishbaum
v
MicheIon
Pursuant
to
the
Pollution
Control
$oard
tde
respondents
are
requested
to
produce
documents
and
answer
interrogatories,
as
follows,
within
the
lime
allowed
by
the
uIes
equests
for
Pocuments
1.
Aft
documents
that
support
the
contention
in
Vespceidents’
Motion
to
Pismiss
(May
9,
200*)
that
the
subject
air
conditioner
units
are
tm
state
of
the
art
2.
All
of
the
ManufacturWs
Pocumentailon
that
supports
the
contention
hi
Exhibit
A
of
respondents’
Motloe*
to
Pisiniss
(May
9,
200*)
that
the
subject
air
conditioner
units
are
71
decibels.’
.
All
purchase
orders,
sales
receipt/invoices,
operating
manuals,
and
manvfactvrWs
specifications
for
the
subject
Air
Conditio
units.
4.
Final
Heating
and
Air
Conditioning
Plan
for
the
property
at
I
47+Lind
showing
kicatloets
of
at
least
Iwo
furnaces
and
three
air
conditioner
units
and
supporting
pipelines,
including
MamifacturWs
and/or
Manufacturers’
operating
manuals
and
hislaibtion
specifications.
5.
Pocumeetlation
on
any
other
trawl
and
model
air
conditioner
units
that
cspondents
considered
or
shopped
6.
All
of
Kcspondeetts’
submissions
to
the
HP
ZA
for
a
side-yard
variance
for
the
subject
air
coetdiffoeaer
units.
7.
All
communications
to
and
from
the
City
of
Highland
Park
about
the
subject
air
conditioner
units,
and
noise
complaints.
8.
espondestts’
expert’s
report
on
the
subject
air
conditioner
units’
sound
emissions,
and
aft
data
and
expert
and
any
information
about
respondents’
experrs
9.
MI
audio
recordings
of
the
subject
air
conditioner
units.
10.
Aft
videotapes,
vidco-PVP’s,
and
photographs
of
the
subject
air
conditioner
units.
11.
All
statemeetl
from
any
witness
about
the
subject
air
conditioner
units
and
sound
emissions
from
the
units.
12.
Aft
exhibits
that
respondents
may
offer
into
evidence
at
the
hearing
in
this
case.
-
0
i
g.
n
doentatjoi
of co
unications
between
the Complainants
and
esposd€nts,
including
respondents’
notes.
Interrogatories
1. Identify
all people
(including
iiame,
home
and work
address. telephone
numbers,
awl
email
addresses)
who
have knowledge
or informaiton
about the
allegations
of
the
complaint
the denials
at
respondents’
answers
to
the
complaint
and describe
each
person’s
knowledge
or
information,
and
how it
was
obtained.
2. Identify
respondents’
expert(s),
describe
their
professional
background
and
qualifications,
and state
their
Opinions.
.
Pescribe
in
detail
how
respondents’
went about
selecting the
subject
air
conditioner
units.
4. Identify
all
oral and
written com
unleatioss
between the
complainants
and the
respondents.
5.
Kegardktg
esposdents’
denial
of
the
first
paragraph
of paragraph
4
of the complaint,
state the nwsiber
of
subject
air
conditioner
units
on
respondesW
properly,
the
capacity
rto.magel
of each
unit,
and
the
distance
of
Th€ units
from
the properly
he between
complainants’
and
respondents’
properties.
S. State
the
number of
days
per
year that
the
subject air
conditioner
units
are turned
the
units’
hours
of
operation,
their
cycle
frequency
and duration,
and
their decibel
ratings.
1.
eqardkig
respondents’
denial
of
the second
paragraph
of paragraphS,
state respondents’
contention
about
the daytime
and .dghttime
decibel
liu,dts
under
illinois
law,
and
explain
the basis
for
the
contention.
S.
State
whether respondents
have visited
complainants’
properly
for the purpose
of
listening
to or
recording
the A/C
units,
and
the
date(s)
and
time(s)
of
any
such
visits.
9.
Slate
the date
that
respondents
first occupied
the residence
at 1474
Linden Avenue
and whether
they
have continuously
occupied
the residence
since
that
date.
10.
xp1ain
all the reasons
why respondents
have
objected
to
relocating
the subject
air
conditioner
units
to
another
part
of
their
properly
further away
from
the
property
line.
11.
Identify all
wihiesses whom
respondents
may
call to
testify
at the
hearing
in
this
ease and the
anticipated
substance
of
their
testimony.
Complainants
reserve
the
right
to serve respondents
with
additional
document
requests
and
biterrogatories
within
the time allowed
by
the
rules.
Signed
Appendix
C
A(f•
Anne Mconaqh
and
9avid
Fishbaum
-i
7--’
1464
Linden
Avenue
Highland Park,
II.
6005
Septemberll,2008
lUot
Wiczer
Wiczer
- Zehnar
LLC
500
Skokie lvd.,
Suite 50
Northbrookll.
60062
Mr. Wiczer:
We
gave
our approval
August
0,
2008 for
your expert
to enter our
property for
the purpose
of testing
the
noise.
I asked to
be notified
lii
advance
so
I
can
be
present during
the
testhig.
I
am home a
lot so this
should
not
be
cumbersome.
We
will be home
and
available
for testing
to be
done
on
Friday,
Sept.
I
2
m
and
all
of
next week
(Sept.
15-19.)
We will
be
traveling
four
days
of
Th€
following
week,
Monday
through
Thursday,
Sept22-25.
Friday,
Sept26Th
and
Monday,
Sept.
29
m,
I
will
be
at
home
if
testing
is scheduled.
eIigious
holidays
for
us fail
on
Sept.$O
and
October
1 so
those days
are not good.
October
2-8th
are acceptable
days
for
testing.
We
will again
be travelling
from
October 9th
through to
October
15th,
so
the
last
available
date for testing
would
be Wednesday,
October
8.
I
can be reached
at 847-4S-6971
orat
AijneMcLlonaqhcomcast.net
or
via
fax
at S47-4-1
44 but
please call
to confirm
we
have
received
any
faxes sent.
flA
Vn
/
1o
7
/IP-Y_,
Mc9onagh
Attachment 5
RCEVED
CLERK’S
OFFICE
ILLINOIS
POLLUTION
CONTROL
BOARD
EB
32009
February
3
2009
STATE
OF
ILUNOIS
Pollution
Control
Board
ANNE MCDONAGH
and
DAVID
)
FISHBATJM,
)
)
Complainants,
)
)
PCB
08-76
v.
)
(Citizens Enforcement
— Noise)
)
RICHARD
and
AMY
MICHELON,
)
)
Respondents.
)
)
)
HEARING
OFFICER
ORDER
On January
29, 2009, all
parties participated
in a telephonic
status conference with
the
hearing
officer. Discussions
centered
on complainants’
Motion to
Bar Respondents’ Expert
Opinions,
filed November
12,
2009. The
respondents
filed
a Motion for Extension
of Time
to
Complete Discovery
on
December
1, 2009. Respondents’
motion
also addresses
complainants’
motion
to bar.
On December
9,
2008,
the
complainants
filed their response.
Complainants’
motion
states that the
respondents
have
not complied with
the discovery
schedule as set forth
in the
Hearing
Officer Order
of September 11,
2008. Specifically,
the
complainants
allege that
the respondents
failed
to serve
their experts report
as required
by
the
discovery schedule.
The
complainants
further state that any
testing of the respondents
air
conditioners now “could
not fairly
represent
warm
weather levels of activity
and
noise”,
and
therefore,
respondents’ expert
and his report
must
be barred.
(Mot. at 3).
In their motion, respondents
represent
that
written
discovery has been
served and
responded to,
and that respondents’
expert was
still
in
the process
of testing and preparing
a
report. Respondents represent
that
the expert report
will
be provided
to the complainants
on or
before January
6, 2009.
The complainants
response
continues
to request
that respondents’
expert be
barred
from
participating
and that “testing
their air
conditioning system in
freezing temperatures
cannot
replicate
summertime
levels
of usage
and noise”
(Response at 1-2).
While
it appears
to
be
true, and as conceded
by the
complainants, an air
conditioning
system
cannot
be
properly
tested
for noise when
temperatures fall
in the winter.
To bar
respondents
expert from
completing
his
report
would
be prejudicial
to
the
respondents
and may
also
be
prejudicial
to
the
complainants
as
well.
Complainants’
motion to bar
is denied.
2
During
the
status conference,
the
complainants
requested
that
a
hearing
date
be
set a
reasonable
time after the
respondents
completed
their
testing.
It
was
agreed that
testing
could
recommence
as early
as April
2009.
Therefore,
respondents’
expert
report
is
due to be served
on
or before
May
5,
2009. All
discovery
to
be
completed
on or
before May
5, 2009.
Any pre
hearing
motions,
including
motions
in
limine,
must
be filed
on
or
before
May
7, 2009.
Any
responses
must be
filed on
or before
May
8, 2009. The
mailbox
rule will
not
apply
to
the pre
hearing
motions
and responses,
and
all electronic
or approved
telefax
filings must
be received
by
the
Clerk’s
Office
no
later
than
4:30
p.m. of
the due
date.
A
hearing
in
this
matter
was scheduled
for
May 13,
2009.
Also
discussed
at the
status conference
was
respondents’
representation
that
a hearing
may
not
be
necessary.
Respondents
represented
that
they have requested
from
the
local
government
a
variance
so that
the air
conditioners
could
be
moved to
the
opposite side
of
the
house.
This
would
presumably
alleviate
any
noise issues
and
the
complaint could
be dismissed.
Further
discussion
will
be
entertained
at the
next
telephonic
status
conference.
The parties
or their
legal representatives
are directed
to appear
at a telephonic
status
conference
with the
hearing officer
on
March 5,
2009,
at 10:00
a.m. The
telephonic
conference
must
be initiated
by
the
complainant,
but
each
party is
nonetheless
responsible
for its own
appearance.
At the
conference
the parties
must
be
prepared
to
discuss
the status
of the above-
captioned
matter
and
their readiness
for
hearing.
IT IS
SO
ORDERED.
Bradley
P. Halloran
Hearing
Officer
Illinois
Pollution
Control
Board
James R.
Thompson
Center, Suite
11-500
100
W.
Randolph
Street
Chicago,
Illinois 60601
312.814.8917
3
CERTIFICATE OF SERVICE
It is
hereby certified that true
copies of the foregoing order were mailed, first
class, on February
3, 2009, to each of the
persons on the attached service list.
It is hereby certified
that a true copy of the foregoing
order was
hand delivered to
the
following on February
3,
2009:
John
T.
Therriault
Illinois Pollution Control
Board
James
R. Thompson Center
100W. Randolph
St.,
Ste.
11-500
Chicago, Illinois
60601
Bradley
P. Halloran
Hearing Officer
Illinois Pollution Control Board
James
R. Thompson Center
100 West Randolph
Street, Suite 11-500
Chicago, Illinois
60601
312.814.8917
4
PCB 2008-076
PCB
2008-076
David Fishbaum
Amy Michelon
Anne McDonagh
&
David
Fishbaum
Richard
Michelon
1464
Linden
Avenue
1474
Linden Avenue
Highland
Park, IL 60035
Highland Park, IL
60035
PCB 2008-076
Elliot
S.
Wiczer
Wiczer
&
Zelmar, LLC
500 Skokie Blvd.
Suite 350
Northbrook,
IL 60062
