1
BEFORE THE ILLINOIS
POLLUTION CONTROL BOARD
DOROTHY FURLAN and )
MICHAEL FURLAN, )
)
Complainants, ) PCB NO. 93-15
)
v. )
) Winnebago County
UNIVERSITY OF ILLINOIS ) Administration Bldg.,
SCHOOL OF MEDICINE, ) 404 Elm Street,
) Rockford, Illinois
Defendant. ) July 29, 1996
Hearing commenced, pursuant to assignment,
at 10:05 a.m.
BEFORE:
DEBORAH L. FRANK, Hearing Officer,
608 South Prospect Avenue
Champaign, Illinois, 61820
APPEARANCES:
DOROTHY and MICHAEL FURLAN,
2608 Hamden Court,
Rockford, Illinois, 61107
Appearing Pro Se.
ATTORNEY JAMES P. DEVINE,
of the firm of Williams & McCarthy,
321 West State Street,
Rockford, Illinois, 61101
Counsel for the Defendant.
REPORTER:
Carrie L. Vaske
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INDEX
Witness Page
Dorothy Furlan
(Direct Testimony) . . . . . . . . 17
Cross (By Mr. Devine) . . . . . . . 21
Tim Ferguson
Direct (By Mrs. Furlan) . . . . . . 48
Cross (By Mr. Devine) . . . . . . . 54
Joe Seger
Direct (By Mrs. Furlan) . . . . . . 57
Cross (By Mr. Devine) . . . . . . . 59
Redirect (By Mrs. Furlan) . . . . . 66
Dr. Salafsky
Direct (By Mrs. Furlan) . . . . . . 68
Cross (By Mr. Devine) . . . . . . . 74
Scott Jensen
Direct (By Mrs. Furlan) . . . . . . 83
Cross (By Mr. Devine) . . . . . . . 88
Redirect (By Mrs. Furlan) . . . . . 92
Greg Zak
Direct (By Mrs. Furlan) . . . . . . 95
Cross (By Mr. Devine) . . . . . . . 114
Redirect (By Mrs. Furlan) . . . . . 153
Recross (By Mr. Devine) . . . . . . 155
Redirect (By Mrs. Furlan) . . . . . 245
Scott Jensen
Direct (By Mr. Devine). . . . . . . 179
Cross (By Mrs. Furlan). . . . . . . 219
Redirect (By Mr. Devine). . . . . . 229
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EXHIBITS
Exhibit Page
Complainant's Exhibit No. 1 . . . . . . 84
Complainant's Exhibit No. 2 . . . . . . 94
Complainant's Exhibit No. 3 . . . . . . 94
Respondent's Exhibit No. 1 . . . . . . . 172
Respondent's Exhibit No. 2 . . . . . . . 180
Respondent's Exhibit No. 4 . . . . . . . 186
Respondent's Exhibit No. 5 . . . . . . . 187
Respondent's Exhibit Nos. 6 and 7. . . . 211
Certificate of Shorthand Reporter . . . 252
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MS. FRANK: Let's begin and go on the
record. Yes, Mr. Devine.
MR. DEVINE: I would just like to
advise the -- Your Honor of a couple of
matters and make a couple of requests. I
anticipate calling Scott Jensen who is
seated to my right as a witness, also
Dr. Salafsky who is the dean at the college
as a witness. I have heard that the
Plaintiffs apparently are going to call some
witnesses. I would like to know who they
are, and I would also move to exclude
nonparty witnesses, and Mr. Jensen is going
to be testifying. He's our representative
from the university here. However, Bruce
Kite's also present. We do not anticipate
that Mr. Kite will testify.
MRS. FURLAN: Excuse me. What did you
say, non what?
MR. DEVINE: Party witnesses.
MS. FRANK: What he means by that is
that you and your husband would be able to
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stay because you are the named parties in
the case but your witnesses who you would be
calling would be asked to go to another room
during testimony of other witnesses and that
they would be called -- we would go and get
them when it was their turn to testify.
MRS. FURLAN: So then we call a
witness --
MS. FRANK: And we would go and get
them, and the same would be true for their
witnesses. Everybody who is a witness would
be asked to leave the room so that they
don't hear what the other people are saying,
much like in a courtroom.
MRS. FURLAN: Yeah, I have no problem
with that.
MR. FURLAN: No.
MS. FRANK: Before we handle that stuff
I'd like to kind of give a brief opening and
get the number and case title on the record
for the transcript. My name is Deborah
Frank and I'm the Hearing Officer for this
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matter before the Pollution Control Board.
I'd like to welcome you all here today. The
case before us is Dorothy Furlan and Michael
Furlan versus the University of Illinois
School of Medicine, and the case number is
PCB 93-15.
Before we begin I just want to
tell you a little bit about the process so
that you know what happens. It's my job as
Hearing Officer to guide the transcript, to
be here to rule on evidence and run the
hearing, but I do not make the decision in
the case. It is the Pollution Control Board
that makes the decision in the case, so
sometimes I may ask questions that will help
the paper record.
Things may be obvious to hear in
this room, we're talking about a piece of
paper or an exhibit, but we need to really
describe it well for the record because what
happens is the Pollution Control Board
members then come in and they read the
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transcript and they look through the
exhibit, and we need to be clear about what
we're doing for them. So if I am asking
questions or intervening at all, that's kind
of why that is happening, and the Board's
rules do allow me to ask questions.
The Board's rules also allow for
interested members of the public to make
statements on the record. They cannot
question witnesses but they can come forward
and be sworn in and state whatever it is
that they would like to state. As to the
exclusion of witnesses, I have no problem
with that. Yes, Mr. Zak.
MR. ZAK: Madam Hearing Officer, in my
own situation, typically I'm usually asked
to assist the Board in understanding and
interpreting the various statements made by
lay witnesses, and as such if I'm excluded
from the hearing I will not be able to
convey that to the Board. I just want to
make that as a statement.
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MS. FRANK: As an expert and knowing
your role in previous noise cases I have no
problem with you remaining in the room. I
don't know how --
MR. DEVINE: I do object to that
because I don't have any problem with him
explaining testimony. They can ask him
questions. I can ask him questions. He's
allowed to -- they're allowed to lay the
proper foundation, but I don't think it's
appropriate for any witness once that motion
has been made to be present, and I would
object to it.
MS. FRANK: Well, he is an opinion
witness and he can't very well give his
opinion --
MR. DEVINE: He's also an occurrence
witness in that he was present at the Furlan
residence during some testing which I
believe will be probably the centerpiece of
his own testimony.
MS. FRANK: Okay. Mrs. Furlan, do you
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have anything to say?
MRS. FURLAN: Yes, I was not aware of
what Mr. Zak just said and I think it would
better explain this case. It would be --
you talked about things for the record, that
it may be obvious here but for the person
reading it you would like it to be certainly
a full explanation, and from what he just
said, that would provide that. There would
be no margin of question.
MS. FRANK: Okay. Generally in Board
hearings we do not exclude witnesses. We do
in extreme cases, usually landfill sighting
appeals, which are highly, highly
contentious. Although our rules allow for
it I do not think it would be prejudicial to
allow Mr. Zak to remain in the room, and I
am going to rule that he may stay.
MR. DEVINE: Over my objection.
MS. FRANK: Over your objection.
MRS. FURLAN: Excuse me, can I ask
why? Why wouldn't you want the people here.
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MR. DEVINE: Your Honor, I don't feel
like I should have to address that.
MRS. FURLAN: Oh, I'm sorry.
MS. FRANK: He has explained his
reasons to me and you heard his argument, so
I will ask everyone else to reconvene to the
conference room behind us, although who are
you planning on calling first?
MRS. FURLAN: First me, then my
husband.
MS. FRANK: Then the rest of them can
go ahead and go.
MRS. FURLAN: Now, what about those who
are not witnesses, can they stay?
MS. FRANK: They can stay.
MRS. FURLAN: You four can stay.
MR. DEVINE: I did ask, Ma'am, that
they also advise me the names of the people
participating.
MS. FRANK: Yes, and I will get to
that.
MR. DEVINE: Okay. I didn't know if it
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had slipped.
MS. FRANK: And if you could please
advise us on who it is that you're planning
on calling today as witnesses, give us the
names of those people.
MRS. FURLAN: Okay, it will be myself,
my husband, Lieutenant Tim Ferguson, Mr. Joe
Seger, and that's it. And excuse me,
Mr. Greg Zak.
MS. FRANK: Okay.
MRS. FURLAN: I'm sorry, I'm sorry.
Also Dr. Salafsky and Mr. Jensen. I
apologize.
MR. DEVINE: I understood that they had
been subpoenaed by the Plaintiff, and that's
no problem. And for the record, we have
designated Mr. Jensen as the University
representative, so I don't believe he's
subject to the exclusion. Salafsky, he is,
and he's out.
MS. FRANK: That's fine. Before we
begin also, I think it's important to make
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clear on the record that I respect the
University's right to defend itself in a
zealous manner, and you certainly have the
right to make any objections that you would
normally make. This is also a hearing with
a pro se party, and so to the extent that we
could lower the level of legalese that's
going on and try to make this a little bit
easier proceeding, it would be appreciated.
If there are questions about
procedures, you know, you may object to them
asking it, but they certainly have the right
to go ahead and ask, and we'll try to handle
it as easily as we can. I realize you, the
Furlans, may not know all the ins and outs
about how we're going to proceed with all of
this, so we will try to get through that as
best we can without impinging on your right
to defend your client.
MR. DEVINE: It's not our intention to
win it on the technicality. We'll win it on
the merits.
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MS. FRANK: Let's go ahead and begin.
Mrs. Furlan, what you may do now is make an
opening statement for the record.
MRS. FURLAN: We intend to prove that
the noise generated by the University of
Illinois School of Medicine is in violation
of Section 900.102 of the Illinois Code
subtitle H Chapter 1 which reads, "Pollution
of Noise Pollution: No person shall cause
or allow the emission of sound beyond the
boundaries of his property or property as
defined in Section 25 of the Illinois
Environmental Protection Act so as to cause
noise pollution in Illinois or so as to
violate any provision of this chapter."
And under Section No. 900.101,
"Noise pollution is defined as the emission
of sound that interferes with enjoyment of
life or any lawful business activity."
With our witnesses and scientific
data we intend to show to the Illinois
Pollution Control Board that the noise
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generated by the University of Illinois
creates unreasonable interference with our
use and enjoyment of our property. Though
the noise level is within numerical limits
this does not by any means -- that it is a
major irritant and constant invasion
restricting the use of our home and
property.
In addition to that we have
signatures just from people who have been to
our home in July.
MS. FRANK: This is just for the
opening statement. You can enter that later
pending on objections and things like that.
If you want to go ahead then,
introduce everybody for the University of
Illinois, go ahead and make your opening
statements, Mr. Devine.
MR. DEVINE: Thank you, Your Honor. We
will be producing testimony from Scott
Jensen and from Dr. Salafsky, the dean of
the University of Illinois College of
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Medicine. It's important to note that the
statute, No. 1, does not prohibit the
emission of all sound. Everybody using
their property makes noise. It's a fact of
modern life.
The evidence in this case will
clearly show that the University under not
only the standards enumerated in the statute
but any other reasonable standard is a good
neighbor and does not emit unreasonable
noise. The evidence will show that this
facility has been in place for years and
years and years before the Furlans ever made
a complaint.
The statute will show that -- or
the evidence will show that the use to which
this facility is put in fact requires
constant temperatures. It's among other
things not only a teaching facility but a
research facility, and keeping constant
temperature in a research facility is a very
important and critical part of conducting
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proper research.
The evidence will show that the
University has attempted -- has bent over
backwards to be good neighbors. They have a
buffer zone of 19 acres around their
property which gives the Furlans a pastoral
setting they would not otherwise ordinarily
enjoy if it were not for the University
having a spacious area.
That buffer zone I think
ironically has contributed to the Furlans
believing they are entitled to absolute
silence because they get to enjoy the
University trees, the University
meadowlands, the wildwood creatures that
occupy that, so they think they live in the
country. The evidence will show they don't
live in the country. They live a very short
distance away from one of the busiest
intersections in Rockford, Illinois.
There's very loud noise all over.
The hard evidence will show that
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the ambient noise level is barely increased
by the University of Illinois College of
Medicine facilities and that the University
has spent literally thousands of dollars in
an attempt to satisfy the Furlans, and they
have significantly improved the situation.
What the Furlans really want is
complete quiet and they're not entitled to
complete quiet, and it's our position that
the Board will have no discretion at all.
They're simply going to have to deny the
Furlan's petition. Thank you.
MS. FRANK: Okay. Mrs. Furlan, you may
go ahead then and call your first witness.
MRS. FURLAN: I cannot respond to
anything he said?
MS. FRANK: No. You can in your
closing arguments later today, but this was
just sort of an opening statement of their
position and your position.
MRS. FURLAN: Okay. Before I begin,
can I change that blind? There's an optical
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illusion and Mr. Devine keeps going up and
down in my vision.
MR. DEVINE: This one?
MRS. FURLAN: Yes, thank you. Thank
you very much.
MS. FRANK: Okay. Now, are you going
to testify first or is your husband?
MRS. FURLAN: I am.
MS. FRANK: Then you need to be sworn
by the court reporter.
DOROTHY FURLAN,
being first duly sworn, was examined and
testified as follows:
DIRECT EXAMINATION
BY MR. FURLAN:
Q. Where do you live?
A. I live at 2608 Hampden Court in Rockford.
MR. DEVINE: Your Honor, I wouldn't
object to her just not following -- with
other witnesses they should. He doesn't
have to examine her and she doesn't have to
examine him. If it would make it easier I
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don't have any objection to her just giving
a narrative of the testimony.
MS. FRANK: Is that easier for you to
just say what it is that you want to say
instead of responding to questions from your
husband? Whichever way you find it easier.
MRS. FURLAN: All right.
MS. FRANK: If it's easier to ask and
answer questions, you can do it that way.
He's just saying whichever way you would
prefer.
MRS. FURLAN: As long as we can go
slowly with this and make sure our issues
are covered.
MS. FRANK: Okay. That's fine.
MRS. FURLAN: I live in a home that is
located on the east border of the University
of Illinois School of Medicine property. It
is a one-story ranch home. There are two
bedrooms. The two bedrooms are located one
at each end of the house, one at the west
and one at the east.
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Because of the noise that's
generated by the medical facility we hear it
in our driveway, on our deck, in our yard
and also throughout our home. Of the two
bedrooms where I stated one is on the west
side, one on the east, the one on the west
side, the choice bedroom, is the larger;
however, we use the one on the east side
which is smaller because it is the quieter
of the two.
The noise generated prevents us
from opening windows. You cannot use that
back room for sleeping, conversation,
reading. We designate that room as a guest
room; however, no one uses it. All of our
children live outside of the city and they
do come to visit on a monthly basis every
two to three weeks, maybe four weeks, and
they'll stay for anywhere from one to three
days. When they come they sleep either in
the living room on the sofa or on the
floor. This is a -- not at all a
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comfortable situation.
Also, I have pericarditis and at
times I cannot lay down to sleep. Sometimes
I just don't sleep, but to get comfortable I
can only stay in a sitting position and I do
not then use our bedroom because this
interferes with my husband's sleep, and
because of not being able to use our second
bedroom I have to prop myself up on the sofa
in the TV room or living room.
Also, we had an uncle who was ill
and we were secondary caregivers. He lives,
oh, 60, 70 miles from us. Our intention was
to bring him to our home. We could not do
that because of no place to put --
comfortable place to put him, and so we
ended up commuting until hospice was called
in and there wasn't as strong a need for
us.
We cannot use the deck on the west
side of our house. We cannot entertain
there or relax there because of the noise.
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When we open the windows in the living room
it penetrates that room. We do not open the
windows in our living room.
Anyone who comes to our home asks,
"What factory is that next to you with that
noise?" It's there all the time. We first
started requesting relief from this noise in
1981 -- excuse me, in 1989. This was done
in informal with a letter to Dr. Salafsky
thinking we are neighbors and let's discuss
this problem, and there was a gap in there
of a couple of years when I was -- the
effects of pericarditis were more frequent
and it was all I could do just to take care
of that. I could not go on to anything
else. That's it.
MS. FRANK: Okay. Do you want to check
your sheet and make sure you --
MRS. FURLAN: Thank you. Thank you.
MS. FRANK: Mr. Devine, questions for
the witness?
CROSS EXAMINATION
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BY MR. DEVINE:
Q. Mrs. Furlan, when did you purchase that
residence about?
A. Ten years ago.
Q. Around 1986?
A. Probably, yeah, 7 maybe.
Q. The School of Medicine was already there,
wasn't it?
A. Yes.
Q. And its physical plant was already there?
A. Yes.
Q. And in fact, you didn't notice any problem
at all until 1989 or at least you made no
complaints until 1989.
A. We made no complaints until '89.
Q. And you've indicated that it was your own
physical condition which kind of interfered
with your going forward between 1989 and say
1993 when you met with Dr. Salafsky; is that
correct?
A. Yes.
Q. And you had a meeting with Dr. Salafsky in
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his office, didn't you?
A. Yes.
Q. And he was very polite and cooperative and
appeared eager to help, didn't he?
A. Yes.
Q. He told you that the University wanted to be
a good neighbor.
A. Yes.
Q. And isn't it your understanding that the
University did, in fact, take steps to
remedy the problem if there was a -- what
you perceived as a problem or do you not
know that?
A. I know that they did some work.
Q. And did you notice any improvement or no
improvement?
A. No.
Q. Are you complaining of any particular piece
of equipment associated with the University
or just the fact that it has -- that, you
know, every single piece of its heating and
air-conditioning?
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A. I can't talk about pieces. I can talk about
locations.
Q. Okay. Tell us what you're complaining
about.
A. There is a noise generated from the building
closest to us and also from the
air-conditioning units on the ground further
from us.
Q. Okay. How far is the building closest to
you?
THE WITNESS: (To her husband) I don't
know that, do you?
Q. I'm asking you.
A. Oh, I'm sorry. I don't know.
Q. There's never been anybody who made any
specific testing for that building, is there
or has there?
A. I don't know.
Q. You're about close to 300 yards away from
the University of Illinois's physical plant,
aren't you?
A. I can't say that. I don't know the
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distance.
Q. It's several blocks if you had to block it.
A. Oh, no, no, no, no, no.
Q. You don't think so?
A. Oh, my, no.
Q. How close would you say?
A. A half a block, if that. Yeah, half a
block.
Q. From the main building?
A. From that first building.
Q. Okay, and how far from the main building?
A. Well, you know, that's right here.
MS. FRANK: You need to describe right
here. That hand gesture won't show up.
A. I thought it was all one building.
Q. Well, you're the one who described there
being more than one building so maybe I'm
confused. Is it one --
A. Maybe I misunderstood your question. Let's
just say that you have an elongated
building. There's noise generated from the
west side and from the middle of that
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elongated building. On the far side when
you walk around that side you hear nothing,
and that's not -- on that far side wouldn't
affect us.
Q. The west side you're talking about.
A. Yes.
Q. Now, between your residence and the
building, is it not true that there are
numerous trees and brush?
A. No.
Q. No trees?
A. You said numerous. There are not numerous.
At one time there were trees along the
creek. There is a dry creek that runs
through there or flood stream and that's all
been cut. We were told to expedite mowing
it. Then there is another grove of trees
that, oh, maybe five years ago a front
loader -- he can't testify. A tractor with
something in front of it came down and
knocked trees down. They're just piled --
Q. So you don't think there's hardly any trees
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now? How would you describe the amount of
foliage between your residence and the
School?
A. Are you talking on University property?
Q. Doesn't matter, anywhere between your
residence and the School.
A. From here to that wall.
MS. FRANK: That won't work for the
record.
A. I'm sorry. How many is that? Is that 20
feet?
Q. I would accept 20 feet.
A. 15 feet.
Q. Okay, 15 feet what?
A. Oh, that there are scattered trees and
brush.
Q. What's 15 feet got to do with it?
A. You asked what the area of trees were.
Q. Okay, so you're saying there are trees on
your property.
A. On our property. Then there's also city
property.
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Q. And there are trees on that.
A. There are trees that we maintain, uh-huh,
and then there is the University property.
Q. In fact, it's kind of difficult to even see
the School standing right in your driveway,
isn't it, because of the foliage?
A. Depends on the season, uh-huh, yes. But
once again, visual and hearing are two
different things.
Q. Sure. When you open your living room
windows, noise penetrates.
A. Yes.
Q. Is that the same when you open the bedroom
windows that the noise penetrates?
A. Is it the same noise, yes. To the degree,
no.
Q. And when noise penetrates we're not only
talking about mechanical noise that
penetrates your home with those open
windows, are we?
A. We are talking about mechanical noises
during the evening hours.
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Q. For example, in another two weeks cricket
season is going to be here.
A. We're not talking about that.
Q. You don't hear cricket noises?
A. No, we do hear cricket noises. That's not
the issue we're here for.
Q. Well, I'm asking you the questions. When
you hear cricket noises you don't object to
that.
A. No.
Q. You have a fountain on your premises that
gurgles; is that correct?
A. Correct.
Q. You hear that when those windows are open,
don't you?
A. Yes.
Q. You don't object to that because that's your
fountain.
A. No, it's not because it's our fountain.
Q. Why is it?
A. It's because it's pleasant.
Q. And were you present in 1994 when Mr. Zak
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and Mr. Jensen came to your home and they
conducted some tests?
A. Yes.
Q. Were you out there when that was going on?
A. Yes.
Q. And did you have any conversation with
Mr. Jensen or Mr. Zak at that time?
A. I don't remember Mr. Zak. He doesn't talk
much, but yes, Mr. Jensen and I, I thought
we had conversation.
Q. And were you face to face?
A. Yes.
Q. And you were able to converse normally;
isn't that right?
A. Yes.
Q. The noise didn't prevent you from -- you
didn't have to shout to be heard over the
noise or anything of that nature, did you?
A. No, and don't misinterpret our complaint.
MR. DEVINE: Okay. Well, at this point
I would ask that the Officer instruct her
just to answer my questions.
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MS. FRANK: Mrs. Furlan, when he is
done asking questions you will get a chance
to again kind of respond to what he -- to
things that he is asking you if you feel
like you need to elaborate on those, so at
this time you need to just answer the
question he's asking you and then you'll get
your turn again.
MRS. FURLAN: Thank you.
Q. Now, Mrs. Furlan, you have indicated that
the problem is more serious at night, is
that correct, that the problems you are
complaining of you notice it more at
nighttime?
A. No, I don't think that's correct.
Q. I thought that's what you just said. Maybe
I'm mistaken about that. So it's equally
noticeable at all times?
A. Noticeable, yes.
Q. And bothersome?
A. Yes.
Q. At all times of day or night?
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A. Yes.
Q. Are there other noises during the daytime
that mask that noise at all?
A. Mask it?
Q. Yes. Do you understand what I mean by
that?
A. Yes, in some way covers it, right?
Q. Right.
A. Okay, no.
Q. Do you hear traffic noise from Spring Creek
Road from your residence?
A. Yes.
Q. Spring Creek is a -- is it a 45 mile an hour
speed limit, do you know?
A. I don't know.
Q. Vehicles travel quite fast on that road
habitually, don't they?
A. I can't answer that.
Q. The noise is very noticeable in your
residence from Spring Creek Road, isn't it?
A. I can't comment on very.
Q. Is it noticeable?
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A. Yes.
Q. When you have those windows that we have
discussed that are open, in addition to
crickets during August you hear that
traffic, you hear birds; is that right?
A. Yes.
Q. If neighbors are running things like lawn
mowers or leaf blowers, you hear those sort
of things.
A. Yes.
Q. Is that correct? If you have the windows
open on your east side and your neighbor has
the air conditioner running, you hear that,
don't you?
MRS. FURLAN: Can we stop? Do I have
to give a yes or no on that because there is
a degree here. I have to give him a yes or
no?
MS. FRANK: You have to give a yes or
no but you may expand on it when he is done
asking questions.
A. Yes, I do.
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35
Q. Now, pericarditis, how often do you have the
episodes where it makes it difficult for you
to sleep?
A. There is not a, say, once a month, twice a
month. It can be like gang busters for a
month straight and then things are calm for
four months, three months.
Q. How's it been this last summer?
A. I was last in the hospital in March. I've
not been in the hospital since then.
Q. How many nights this summer have you had to
sit out in the living room?
THE WITNESS: Oh, I can't ask you
neither.
Q. And if you can't remember precisely --
A. Three or four.
Q. Three or four since the beginning of June
perhaps?
A. June, uh-huh.
Q. And I take it when you're doing that you're
already in some pretty severe discomfort.
A. Yes.
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36
Q. And it would be difficult for you to sleep
under any conditions, wouldn't it?
A. Yes.
Q. In the summer of 1995 it's my understanding
that you and Mr. Furlan were out of town
most of the summer; is that right? Your
daughter was ill and you asked for a
continuance of this hearing?
A. Not most of the summer, no.
Q. When were you out of town in 1995?
A. I can't answer that honestly. I cannot. It
did conflict with that hearing date. I
cannot tell you.
Q. Do you think it was only, like, two or three
days or a week or was it several weeks?
A. It probably was two weeks and then another.
Q. That hearing was in May, does that sound
right to you?
A. I'd have to look it up.
Q. Okay. You don't remember for sure?
A. No.
Q. So you think you were out of town two weeks
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37
initially and then maybe one other week
during the summer; is that right?
A. During the fall probably.
Q. All right. When did this uncle of yours
fall ill, the one who's in hospice?
A. No, he is now deceased. He died.
Q. I'm sorry to hear that. When did that occur
though, this episode that you talked about
in terms of --
A. It would have been last summer. Well, last
summer, fall, whatever. It's just to have
that available to him was never available to
him.
Q. Well, did you ever discuss that possibility
with him?
A. No, between ourselves. With him, would he
be willing to come, oh, yes, that would be
great. That way, yes.
Q. He was willing to come.
A. Under different circumstances.
Q. Sure. If it were an extremely quiet,
relaxed setting.
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38
A. You're using the word extremely, I can't --
Q. So you disagree with that.
A. Yes.
Q. Well, when was it that you first thought
there was a possibility he might come to
live with you?
A. Last year, and I can't give you a month
because he was --
Q. How long after that did he go to hospice?
A. Four, five months. I really apologize to
you. I didn't know we were having these
questions. I don't have these things.
Q. I understand, that's all right. All that
anybody's asking is that you answer the
questions to the best of your ability. I
didn't know I was going to ask these
questions because I didn't know what you
were going to say.
A. Okay.
Q. You have furniture on your west deck, don't
you?
A. Yes.
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39
Q. And you use that furniture on occasion.
A. No.
Q. Never use it?
A. Never.
Q. Why is it out there?
A. It looks nice.
Q. Okay. Do you have an east deck?
A. East deck, no.
Q. Do you have a north deck?
A. Yes.
Q. And you use that deck.
A. Yes.
Q. I take it -- well, in fact, I'll confess. I
was out to your home Friday and I thought I
saw Mr. Furlan using an electric leaf
blower. Do you guys own an electric leaf
blower?
A. Yes.
Q. That's a lot louder than any of the noise
you're complaining about from the
University, isn't it?
A. Not a lot.
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40
Q. You would agree though that it's louder,
wouldn't you or not? Maybe you don't agree
with that.
A. If I'm standing here and he's using it here,
yes.
MS. FRANK: Here and here won't work on
the record.
A. If he is using it a foot from me, yes. If
he is using it further than that, no.
Q. And you own an electric lawn mower or a gas
powered lawn mower?
A. Yes.
Q. And a snow blower?
A. Yes.
Q. Hedge trimmer?
A. Uh-huh.
Q. All those are power tools.
A. Hedge trimmer, hedge trimmer, no.
Q. Okay. To your knowledge you're the only
couple that has made a complaint to the
Pollution Control Board about this noise; is
that right?
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41
A. Yes.
Q. Do you know what they do at the University
of Illinois College of Medicine?
A. Specifically, no. I'm assuming it is an
educational facility.
Q. Do you know whether or not they carry on
research, medical research there?
A. I have no idea.
Q. Couldn't say one way or the other?
A. No.
Q. So as I understand it you do not necessarily
attribute what you're calling a problem to
any one particular air-conditioning unit at
the University or any one heating unit; is
that correct? Could be any or all of them
along that east and north wall; is that
right?
A. I would have to say yes.
Q. Okay, and I take it what you would like to
see would be the University to build a wall
between its east and north wall and you to
stop that sound.
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42
A. I couldn't -- I can't comment on that. That
would be under Mr. Zak's recommendation. He
would be the sound expert on that. I don't
know what would do it.
Q. And you have no idea what it would cost.
A. No, sir.
Q. You really don't care because it's not your
money; right?
A. No, it's the taxpayers' money. I care
immensely.
Q. Okay, but you want them to do whatever is
necessary regardless of cost.
A. I want them to do the right thing.
MR. DEVINE: That's all I have of this
witness.
MS. FRANK: Okay. Mrs. Furlan, you
have the right now to respond to the things
that were brought up in cross examination,
so if there are points that you feel you
want to make clear, you may do that.
Normally it would be done through your
questioning of a witness, but because you
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43
did a narrative style the last time we're
just going to go ahead and allow you to
state whatever it is that you feel you need
to state.
MRS. FURLAN: Okay, thank you. I feel
that you misrepresent our complaint that we
are expecting --
MS. FRANK: This is more like a summary
of your argument. What you really want to
talk about are maybe specific issues and not
sort of the whole thing and tie it up into a
package.
MRS. FURLAN: All right, thank you.
The issue with the noise from the
air-conditioning of neighbors, this is
muted. It is sporadic. It is not an all
the time situation. The other noises
discussed, water gurgling, I don't see a
comparison between water gurgling and a
drone and a roar.
Spring Creek traffic, this is
during traffic hours, going to work, coming
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44
home from work. It's not a continuous
thing. As far as the pericarditis, I could
not sleep anyway. The issue is not just the
sleep. It is trying to be comfortable, to
have less invasion into trying to control
this health thing.
The furniture on the deck, it
makes the house look lived in. It doesn't
look like it's vacant. We don't want to --
we don't want anyone thinking no one is
there and make it a target. As far as the
activity, what the medical school does about
the research, I don't know that that has
anything to do with anything.
MS. FRANK: Do you have anything else?
MRS. FURLAN: I don't think so.
MS. FRANK: Okay, just on those things.
MRS. FURLAN: Yes.
MS. FRANK: I know you have more
information. Do you have anything more?
MR. DEVINE: No further cross.
MS. FRANK: Mrs. Furlan, you may call
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45
your next witness.
MRS. FURLAN: My husband.
MS. FRANK: And you'll need to be
sworn.
MRS. FURLAN: Excuse me. He's going to
say the same thing I said. Do you want to
hear -- he's going to repeat it.
MS. FRANK: Okay. Well, why don't we
go ahead and get him sworn first.
MICHAEL FURLAN,
being first duly sworn, was examined and
testified as follows:
MS. FRANK: Mr. Devine, do you have
different questions for this witness?
MR. DEVINE: No, I'd ask him the same
questions, so you know.
MS. FRANK: Then let's just state for
the record that your testimony would be
similar to that of your wife's and that you
agree with her answers to Mr. Devine's
questions. Is that --
MRS. FURLAN: Is that in any -- I don't
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46
know if I can ask this, but is that in any
way going to weaken our position?
MR. DEVINE: Not any more than it
already has, if it has.
MS. FRANK: I think that if he is going
to testify to the exact same things that
there is no need for repetitive testimony.
MR. DEVINE: I would stipulate that,
you know, you need not hold the number in
terms of that, that they're going to say the
same thing both on direct and cross
examination.
MS. FRANK: Right. Okay. Then you may
call your next witness.
MRS. FURLAN: That would be Mr. Tim
Ferguson.
MS. FRANK: Okay. We need to go get
him.
MR. DEVINE: I'm going to raise an
objection to that, but we can wait until he
comes.
MS. FRANK: To Mr. Ferguson?
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47
MR. DEVINE: Yes.
MS. FRANK: Swear the witness, please.
TIM FERGUSON,
being first duly sworn, was examined and
testified as follows:
MS. FRANK: Mr. Devine?
MR. DEVINE: Yes, I would raise an
objection to Mr. Ferguson's testimony. The
University previously propounded to Mr. and
Mrs. Furlan a request for production.
Request No. 5 states, "List the names and
addresses of all other persons (other than
yourself and persons heretofore listed) who
have knowledge of the facts of the
allegations set forth in your complaint,"
and I see listed Helen and Joe Seger, Ron
Bonaquist, Diana Pollare and Claude and Ann
Zuba, none of whom is Mr. Ferguson.
And on that basis I don't think he
should be allowed to testify. We haven't
had the opportunity to be aware that he was
going to testify, and it would be
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48
prejudicial to our position.
MS. FRANK: Can you give me the date
that you -- I have a huge pile of documents
so I need to know which one you're talking
about.
MR. DEVINE: It looks like it was
propounded April of 1993, April 23 of 1993.
MS. FRANK: So you're talking about the
answers that came on May 26th of '93?
MR. DEVINE: Yes. It was received by
my client on May 27th of 1993. There's also
in back of that a petition of some sort, but
he is not listed on that petition either.
MS. FRANK: Okay. For some reason I do
not have -- I have two copies of the request
to produce. The second copy is from the
Furlans but it does not have the answers
attached to it.
MR. DEVINE: I would submit to Your
Honor a copy that the University received.
MS. FRANK: Okay, Mrs. Furlan, when did
you become aware that this man would be
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49
testifying? I'm sorry, your name again?
MR. FERGUSON: Mr. Ferguson.
MS. FRANK: Mr. Ferguson would be
testifying?
MRS. FURLAN: Probably a month ago.
No, at the time that we knew we were going
to hearing.
MS. FRANK: And why did you -- what
occurred that made you find out about him a
month ago?
MRS. FURLAN: He's our neighbor and he
has heard this noise.
MS. FRANK: Why was he not listed on
the earlier documents?
MRS. FURLAN: Ignorance. I had no idea
this was coming to this. No idea at all.
These are friends of ours who have commented
on the noise. We just put their names
down. We did not go to everyone and say,
"This is what we're living with here." We
played it down. We minimized it. We had no
idea that attorneys were going to be
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50
involved and we just didn't have -- through
ignorance. That's the only reason. We just
did not ask for assistance.
MR. DEVINE: I don't dispute that part
although I think it's disingenuous for her
to say they didn't know it was coming to
this. They filed the petition. They wanted
it to come to hearing. They knew it was
coming to hearing.
MRS. FURLAN: Then the ignorance is on
the procedure of the hearing.
MS. FRANK: Okay. Let's go off the
record for a minute.
(A discussion was held off the
record.)
MS. FRANK: I am looking at the
document which was request for production
and I believe also the answers to the
request for production which is file stamped
May 27th from the University of Illinois.
Unfortunately I don't have the Board's file
stamped copy.
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51
I have, as I said before, a copy
that does not have the answers attached to
it, and as I look at this there is a
specific question requesting -- Question
No. 4, "State the full name and address of
all expert witnesses who will testify at
hearing," and there are two expert witnesses
listed.
There is not a specific question
to nonexpert witnesses who will be
testifying at hearing. What we have are two
questions on people who may have knowledge
to the facts alleged in the complaint, and I
understand that the witness may have had
knowledge at that time but was left off of
this list. However, there was not a
specific question on here requesting that
other witnesses be listed, and based on the
inexperience of the Furlans I don't believe
that they would have known that the other
witnesses would be excluded if they were not
specifically listed.
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52
Based on that I'm going to allow
the testimony of this witness. You may
continue your objection to the Pollution
Control Board if you wish and request that
they strike this testimony.
MR. DEVINE: Sure.
MS. FRANK: But because of the way the
Board's set up it makes more sense to go
ahead and get the testimony from this
witness while we are all here at hearing
rather than have a remand to come back to
hearing and do that, so I'm going to allow
the testimony of this witness.
Mr. Ferguson, I believe you were
already sworn.
MR. FERGUSON: Yes.
MS. FRANK: To Mrs. Furlan, you may
begin asking your witness questions.
DIRECT EXAMINATION
BY MRS. FURLAN:
Q. Mr. Ferguson, where do you live with
relationship to the 2608 Hampden Furlan
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53
house?
A. My specific address is 2614 Hampden Court
which is immediately west of the Furlan
residence.
Q. And are you familiar --
A. I'm sorry, immediately east of it --
Q. That's right.
A. -- of the Furlan residence.
Q. And are you familiar with the noise we're
discussing here today?
A. Yes.
Q. You hear this on your property?
A. Yes.
Q. And where do you hear it?
A. Generally or specifically?
Q. Generally.
A. Generally I usually hear it -- most aware of
it in the southwest upper bedroom area of my
residence.
Q. Do you hear it outside?
A. Yes.
Q. Do you hear it in any other room of your
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54
home?
A. Generally no.
Q. With the way the homes are situated, ours
being west of yours, is your -- do we in any
way shield your house?
MR. DEVINE: I object to the form of
the question.
Q. Okay. What reason is there that you would
hear it in that room specifically?
A. That's probably -- and I'm going to have to
make some -- again, I don't know
specifically what you'd call it, but my best
guess as to why I hear it in that room is
because it's an elevated room. It is a
tri-level house. It is the room that would
be the most elevated, and also it's the
closest to the source of the noise.
MR. DEVINE: I object to his guess to
the answer and ask that that be stricken.
MRS. FURLAN: How else can you answer?
MS. FRANK: I'm going to allow the
information with the knowledge that this
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55
witness is not a noise expert but he is
giving his perception of the sound in his
home. The Board is capable of taking that
into account as to credibility. You may
continue.
Q. This is the one room that extends beyond our
house or the location -- the rest of the
house -- our house otherwise covers your
western --
MS. FRANK: Mrs. Furlan, you need to
ask questions that he can respond to, not
yes or no questions. Yes or no questions
are for cross examination. I know that's
kind of hard to think about, but you need to
ask the kind of questions that he can sort
of give general information answers to that
aren't just yes or nos, so if you can phrase
it in a way that will allow him --
MRS. FURLAN: Like how is our house
situated?
MS. FRANK: That is fine if you want to
ask that.
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56
MRS. FURLAN: The picture I want to
give is how these houses sit. Our house
covers his.
MS. FRANK: Why don't you ask him how
the houses sit in relation to each other.
MR. DEVINE: I don't even mind if
that's all she's going to do. If it's
easier for them to get rid of him and
testify to that herself, I wouldn't mind her
reopening her own testimony.
MRS. FURLAN: Mr. Devine, what I'm
saying is our house is the buffer house so
that consequently every neighbor beyond our
house hears less and less than we do.
MS. FRANK: Mrs. Furlan, you're
testifying at this point.
MRS. FURLAN: Oh, I'm sorry.
MS. FRANK: Right now you're sort of in
the lawyer role so you're asking questions
of this witness. You will have a chance at
the end after they've called witnesses to
come back on with what we call rebuttal
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57
witnesses so if you want to -- if there's
things you forgot to say that you need to
say you will get a chance to do that.
MRS. FURLAN: All right. Then I have
one last question.
MS. FRANK: Okay.
Q. How -- please describe the situation how the
houses sit.
MS. FRANK: By the houses you mean
Mr. Ferguson's house?
MRS. FURLAN: Our house in relationship
to his, yes.
MS. FRANK: Okay.
A. Trying to be as descriptive as possible, my
residence obviously is further to the east
of the Furlan residence. The Furlan
residence is between my residence and the
property of the School of Medicine. Not
only is their house between my property and
the School of Medicine property, there's
also a row of trees and brush that divides
our property so that many times I know their
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58
house is there but if I was to look directly
through I don't have an unobstructed view of
their house. It's buffered, if you want to
use that word, by a row of trees and brush
which further separates my house from the
School of Medicine.
Q. And who else at your residence has commented
on the source?
MR. DEVINE: I object to that as
hearsay.
MS. FRANK: Sustained. You can't ask
about -- with some exceptions, I guess, you
can't really ask about what other people
heard. You need the witness to come and
testify to what they heard.
MRS. FURLAN: Even though it is someone
in that family?
MS. FRANK: Yes.
MRS. FURLAN: Okay, that's it.
MS. FRANK: Okay, Mr. Devine?
CROSS EXAMINATION
BY MR. DEVINE:
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59
Q. How long have you lived there, Mr. Ferguson?
A. Since April of 1983.
Q. You've never made a complaint to the
University or to the Illinois Pollution
Control Board about the noises, have you?
A. No, sir, never.
MR. DEVINE: No further questions.
MS. FRANK: Mrs. Furlan, do you have
anything else for this witness, any other
questions?
MRS. FURLAN: No, I don't think so.
MS. FRANK: Okay. Can we go off the
record for a moment?
(A discussion was held off the
record.)
MS. FRANK: Back on the record.
Mrs. Furlan, you may call your next
witness.
MRS. FURLAN: Mr. Joe Seger.
MR. DEVINE: This may expedite things
to some degree. I think Mrs. Furlan
indicated that these witnesses were largely
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60
going to be repetitive and I certainly --
you know, she has every right to present her
case as she chooses, but I wouldn't object
to stipulating that they will testify with
the exception of precisely where they live,
you know, that they also -- you know, the
same things would be true.
MRS. FURLAN: We're off the record or
whatever you say?
MS. FRANK: Well, we're on the record
but we're not arguing this point.
MRS. FURLAN: Initially when all this
started way back with this informal
conversation, now, maybe my husband and I
misinterpreted, but at that time Attorney
Kite said this has to be between us because
no one came forward with this complaint. So
a lot of neighbors were just -- we just --
we went by that direction.
MS. FRANK: That's not, I don't
believe, what Mr. Devine is getting to.
What he is talking about is that if you have
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61
several neighbors that are going to testify
to things very similar to Mr. Ferguson --
MRS. FURLAN: That they are hearing the
noise you mean?
MS. FRANK: That they are hearing the
noise, that in order to expedite that he
would be willing to accept for the record
other than where the location of their homes
are, and maybe you could give a description
of that, that they are going to testify that
they hear the noise.
MR. DEVINE: Actually I think that
would really only be -- she only named one
other neighbor and that's Joe Seger.
MRS. FURLAN: And Joe Seger is not a
neighbor. He's a friend and the reason --
MR. DEVINE: Then maybe the
stipulation --
MS. FRANK: Then why don't we go ahead
and call him. I think with that point it
would be faster --
MR. DEVINE: I was trying to make it
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62
faster. It doesn't look like it's going to
work.
JOE SEGER,
being first duly sworn, was examined and
testified as follows:
DIRECT EXAMINATION
BY MRS. FURLAN:
Q. Mr. Seger, what is your relationship with
the Furlans -- to the Furlans?
A. Very close friends.
Q. And how long have you known them?
A. About 22 years.
Q. Are you familiar with the noise problem
discussed today?
A. Yes, I am.
Q. Have you visited at their home?
A. Definitely.
Q. When was the last time you were there?
A. About three, four days ago.
Q. And what noise did you hear, what sound?
A. The sound to me equated to like if you're
sitting at a railroad stop and you hear the
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63
train going by, what you hear there or if
you're a passenger in a commercial airline,
sounds like that roaring or if you're
sitting in the room next door, like that
only a little louder.
Q. And where do you hear this noise?
A. When I pull up in the driveway or on the
west side deck or sometimes in the back even
where we meet.
Q. And have you ever spent time on that west
side of the house on that deck?
A. No, no, huh-uh.
Q. And why not?
A. The noise is quite loud and you'd rather be
where you could talk.
Q. When you say quite loud, how does that
interfere with your being on that deck?
A. It's just a nuisance. It's hard to
communicate.
Q. Are you aware of -- how are you aware how
this noise has affected the Furlans use of
their property?
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64
A. Well, I know that they can't use that west
room because of the noise, and I've been in
there when they're out of town and I've gone
over there to water plants and things, and I
can hear it in there, and I sure as heck
wouldn't want to be in there.
MRS. FURLAN: Thank you.
MS. FRANK: Mr. Devine?
MR. DEVINE: Thank you.
CROSS EXAMINATION
BY MR. DEVINE:
Q. What time were you over there?
A. Oh, all different times.
Q. Well, you said three or four days ago.
A. Yeah, it was in the evening.
Q. Okay. Do you know what time you got there?
A. No, I didn't pay that much attention.
Q. Did you sit out on the north deck that
evening?
A. Yes.
Q. Frequently sit out on the north deck?
A. We sit on the north deck. We sit inside the
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65
house and I pull up in the driveway.
Q. Okay, and the Furlans direct you to the
north deck.
A. I just walk in there and we're very good
friends and I just seen somebody sitting out
there so I go out.
MRS. FURLAN: That's a porch, not a
deck. We don't sit on the deck.
THE WITNESS: No, it's a porch, yeah, a
screened-in porch.
MS. FRANK: The north area is a porch,
for the record, a screened-in porch, not a
deck.
MRS. FURLAN: There is a deck and a
porch. We do not use the deck. We use the
porch. And it does matter. Don't roll your
eyes, it does matter.
MR. DEVINE: Your Honor, I don't think
that I should be subject to that.
MS. FRANK: This is a professional
proceeding and it should be treated much
like a court proceeding.
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66
MRS. FURLAN: I apologize to you and
apologize to you and to anyone here.
MS. FRANK: I just want to make sure
that we're clear for the record because we
have been referring to the north area as a
deck. What you're referring to as the north
area is a screened-in porch.
MRS. FURLAN: And a deck.
MS. FRANK: And there is also a deck
there.
MRS. FURLAN: Yes.
MS. FRANK: But the area that you're
concerned about with the noise is a west
deck.
MRS. FURLAN: That is where it's the
most prominent and that is the one that's
eliminated completely.
MS. FRANK: All right. I think we're
clear now for the record. You may continue,
Mr. Devine.
Q. (By Mr. Devine) So a few days ago you sat
on the west porch; is that correct?
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67
A. North porch.
Q. I'm sorry, north porch, and that's a
screened-in porch.
A. Uh-huh.
Q. Do the Furlans also have furniture on the
north deck?
A. Yeah, they've got a couple chairs out there.
Q. Do you sit out there at all to your
knowledge or not?
A. We haven't maybe once or twice in the last
20 years, but most of the time it's in the
screened-in area because of the bugs and
stuff.
Q. Well, the Furlans haven't lived there 20
years, have they?
A. Pretty close to it. Well, 15, whatever.
Q. Ten?
A. We've known them for 22 years. If you want
to be specific I think they moved in there
sometime around 1981.
Q. Okay.
A. Okay.
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68
Q. Okay, and the screening keeps the bugs off
of you.
A. Uh-huh.
Q. Do you notice any other noises as you sit in
that yard?
A. Birds.
Q. They're quite audible, aren't they?
A. No, they're very pleasant.
Q. Sure, but you can hear them without any
trouble; is that right?
A. Yeah.
Q. The Furlans have a fountain there; is that
correct?
A. That's in the front.
Q. And when you're in the driveway, for
example, you hear the fountain though.
A. No.
Q. You don't hear the fountain?
A. No, I can't hear the fountain. It's just a
little trickle of water.
Q. And do you hear traffic from Spring Creek
and High Crest Roads?
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69
A. No, I never noticed any, no.
Q. Never noticed, okay. Nobody ever pointed it
out to you.
A. Spring Creek would be quite a ways away.
Q. I understand.
A. I'd have to have real good ears to hear
Spring Creek.
Q. How far away is the School of Medicine from
the Furlan residence?
A. I don't know as far as feet. It's the next
building over.
Q. Would you agree that it's probably around
800 feet away?
A. I wouldn't agree to 800 feet. I have no
idea.
Q. You have no estimate whatsoever?
A. No.
Q. You wouldn't disagree or agree with that
estimate.
A. I wouldn't agree with it.
Q. Okay. What's the -- do you have any
estimate or not?
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70
A. No, huh-uh.
Q. So you have no --
A. I can see the building and that's it.
Q. Okay, and you were there three or four days
ago. When was the time previous to that
that you were there as best as you can? I
understand you probably don't keep a
calendar.
A. That's true. Probably maybe a week or two.
We go out to dinner together and sometimes
they drive and sometimes I drive, so I can't
remember exactly.
Q. So perhaps once a week or so you're out
there?
A. I would say that it would be in that
vicinity, yeah.
Q. Okay, and this time that you were in their
residence when they were gone, what time of
year was that? Was that last summer?
A. It would have been in the summertime, yeah.
It's to check and water flowers and stuff.
MR. DEVINE: Sure. I have no further
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71
questions.
MS. FRANK: Mrs. Furlan, did you have
more for Mr. Seger?
MRS. FURLAN: No.
MS. FRANK: Okay.
MR. DEVINE: I would like to do a
little more. I'm sorry. A couple things
occurred to me.
MS. FRANK: Okay.
Q. (By Mr. Devine) Can you isolate the noise
at all that you're talking about?
A. I know it's coming in that direction from
the School of Medicine, and I explained what
it sounded like.
Q. I understand you explained what it sounded
like. What I'm asking is have you been out
there close enough to determine whether it's
coming from a particular piece of equipment
or not?
A. It sounds like an air conditioner. I mean,
as I say, it sounds very similar to the room
next door only louder. It's quite loud in
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72
there compared to here.
Q. But you haven't been actually on the School
grounds apparently so you couldn't say it's
this particular piece of equipment or that
particular piece of equipment.
A. No, I couldn't do that.
Q. Okay, and it's not always that loud, is it?
A. Every time I've heard it it doesn't seem to
change in pitch or anything.
Q. Every time you've heard it, but you don't
hear it every time you're out there.
A. I'm not there in the wintertime or anything
to hear it, no, but I mean, whenever it's on
it sounds the same.
MR. DEVINE: Okay, that's all I have.
MS. FRANK: Do you have anything
further?
MRS. FURLAN: Yes.
REDIRECT EXAMINATION
BY MRS. FURLAN:
Q. Whenever you are at that property you hear
this noise?
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73
A. In the summertime when they've got the air
conditioner on, yeah.
Q. Then you're saying it would be from an air
conditioner.
A. It sounded like an air conditioner.
Q. The sound is like an air conditioner. Are
you saying it's an air conditioner?
A. No.
MRS. FURLAN: That's it. Thank you.
MS. FRANK: Do you have anything
further?
MR. DEVINE: Nothing further.
MS. FRANK: Is there any reason to
recall this witness?
MR. DEVINE: Not as far as I'm
concerned.
MS. FRANK: Mrs. Furlan?
MRS. FURLAN: No, none.
MS. FRANK: Then Mr. Seger, you're free
to go.
MR. SEGER: Do I have to stay in that
room?
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74
MS. FRANK: No, you can stay here and
listen or you can leave.
MRS. FURLAN: Dr. Salafsky.
MS. FRANK: Let's go off the record for
a minute.
(A discussion was held off the
record.)
MS. FRANK: Let's go back on the
record. Dr. Salafsky, Mrs. Furlan.
DR. SALAFSKY,
being first duly sworn, was examined and
testified as follows:
DIRECT EXAMINATION
BY MRS. FURLAN:
Q. Dr. Salafsky, we've discussed this noise
problem. Our first meeting was in your
office; is that correct?
A. I believe so.
Q. And who was in attendance there?
A. I think you and your husband were, I think
Scott Jensen was, I believe Bruce Kite was.
Q. And what was discussed at that time?
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75
A. Your complaint.
Q. Our noise complaint?
A. Yes.
Q. When I commented on the noise from the unit
on the roof of your office, what was your
comment?
A. I don't believe that we had had other
complaints, I think that was one of my first
comments to you; that I had to the best of
my recollection never received a complaint
about noise pollution, and then I think I
indicated to you secondly that we would
begin to see if it were indeed a problem we
would try to correct it; that I needed to
find out about the dollars that would be
required for that, and I think that I
indicated that we'd always been good
neighbors and we had hoped to be able to
continue in that vein.
Q. And then when we talked -- and it was
general conversation, it was informal
conversation, and the unit on the roof of
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76
your office made your office quite loud, and
when that was brought up, what was your
comment?
MR. DEVINE: In so far as that's more
testimony than it is a question, I object.
MS. FRANK: Okay. Mrs. Furlan, when
you make statements like the air conditioner
unit was very loud, that's you testifying
that it is. That's something that you can
say later when it's your testimony again but
right now you're asking the witnesses
questions. Does that make sense? You're
asking him to testify.
MRS. FURLAN: Yeah, I'm asking him to
testify, okay. I'll come back to that
because I don't know how else to handle it
right now, and I think it is important.
MS. FRANK: Okay.
MRS. FURLAN: When we were leaving your
office -- but see, I want to ask him what he
said. How do I ask that then?
MS. FRANK: You can ask him what he
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77
said in response to your comment, which is
different than you stating that it's very,
very loud, so you just sort of need to
rephrase the question.
MRS. FURLAN: Thank you.
What was your response to my
comment when I mentioned the irritation of
the noise in your office?
A. I don't recall.
Q. Do you recall stating, "Why do you think I
spend as much time out of my office as
possible"?
A. No, I do not.
Q. When we were leaving what -- okay, how'd I
word that other one? What was your final --
am I asking --
MS. FRANK: You're okay.
Q. What was your final statement to us?
A. That we would try to find the dollars to
deal with the problem because we wanted to
be good neighbors.
MRS. FURLAN: Thank you, that's it.
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78
Oh, no, I'm sorry. I'm sorry.
During the final meetings when
they were doing the final meeting on this
and I called you specifically and requested
that you do something to reduce the noise
because whatever you had supposedly done --
and I'm not saying you didn't do it either,
supposedly came out. I don't mean to imply
anything by that; that the noise was loud,
it continued to be invasive, what was your
direction to me?
A. I don't recall. Possibly to take it up with
Scott, with Mr. Jensen.
Q. Do you recall saying, "Call me after July
1st and I'll let you know what I decide to
do"?
A. Yeah, I think I did say that, but it was not
that I'd decide what I would do. It was a
matter of trying to find the money to do
whatever had to be done in the new fiscal
year.
Q. Then after July 1st I called and asked what
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79
you were going to do to reduce that noise.
What did you say then?
A. I don't recall. Why don't you refresh my
memory.
Q. Do you recall stating, "I will do nothing,
we are in compliance"?
A. I could have said that. If we were in
compliance, I probably did say that.
Q. And then I -- do you recall when I asked
you -- what was your response when I said to
you, "Dr. Salafsky, would you like to live
with this noise?"
A. I don't recall.
Q. And without hesitation, Doctor, you said
"No." Do you recall that?
MR. DEVINE: That's testimony so I
object, but subject to that it might be
easier if she --
MS. FRANK: Go ahead and answer the
question because she did rephrase it.
A. No.
MS. FRANK: No, you don't recall?
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80
THE WITNESS: No, I do not recall.
Q. But you do recall that phone conversation?
A. I believe so.
Q. How would you define a good neighbor?
MR. DEVINE: I object. I don't believe
that's relevant, Your Honor.
MS. FRANK: Sustained. Mrs. Furlan,
you need to move to your next question.
Q. Would you agree that a good neighbor is
someone who would not cause undue noise?
MR. DEVINE: Same objection, Your
Honor.
MS. FRANK: It's sustained. The
witness is not an expert on good neighbors
and you need to ask him things which are
within his knowledge.
MRS. FURLAN: Even though I -- can I
ask what his definition of a good neighbor
is?
MS. FRANK: I ruled that you couldn't,
so you need to move to your next question.
MRS. FURLAN: Thank you.
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81
MS. FRANK: Is that all you have at
this time for this witness?
MRS. FURLAN: Yes.
MS. FRANK: After Mr. Devine is done if
there are things that he talks with the
witness about that bring up questions, you
may ask more questions. You may begin.
CROSS EXAMINATION
BY MR. DEVINE:
Q. Dr. Salafsky, you've never been to the
Furlan residence I take it.
A. No.
Q. So you would have no way of knowing
subjectively what they claim they hear on
their property because you were never
there.
A. Correct.
Q. Now, what is your position at the University
of Illinois College of Medicine?
A. Regional dean.
Q. And how long have you been the regional dean
there, sir?
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82
A. 14 years.
Q. And prior to that were you in any way
affiliated with the School of Medicine?
A. Yes.
Q. And how so?
A. I was head of the department of biomedical
sciences from '77 to '82.
Q. Okay, and do you have any direct knowledge
as to how long the School of Medicine has
been there?
A. Yes.
Q. How long has it been there?
A. As a school of medicine?
Q. Yes, sir.
A. 25 years.
Q. Okay, and has it been constituted in its
present form in terms of its heating and
air-conditioning unit since that time?
A. Since 1975.
Q. Okay, and before the School of Medicine
existed as the School of Medicine was the
building itself there in some form?
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83
A. Part of it.
Q. Okay, and how did it exist at that point?
A. I believe as a nursing home and prior to
that as a TB sanitarium.
Q. Do you know when that facility first opened
in its original form as a TB sanitarium?
A. Probably around 1920.
Q. And do you know whether the Furlans moved
into that residence before or after 1975
when it's been configured in its present
form?
A. I have no idea.
Q. In addition to your duties as the dean, what
else do you do at the University of Illinois
College of Medicine, sir?
A. As a faculty person I give lectures. I
conduct research.
Q. What kind of research do you conduct, sir?
A. I personally conduct tropical disease
research.
Q. What's your degree in, for the record?
A. A doctorate.
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84
Q. In what?
A. Pharmacology.
MS. FRANK: Let's stop for a moment.
Stay on the record. Mrs. Furlan, did you
have a question?
MRS. FURLAN: Does that have anything
to do with the noise?
MS. FRANK: He's getting background on
the witness and that's allowable.
MRS. FURLAN: Thank you.
MS. FRANK: Please continue.
Q. And are there other doctors or physicians or
researchers there who conduct research?
A. Yes.
Q. What kinds of research are conducted at the
School of Medicine?
A. It's a broad range of research. It varies
from what we would call bench research or
basic research involving laboratories that
might be classified, for example, as
physiologic research or pharmacologic or
biochemical or molecular biological or
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85
immunological, to research that deals with
epidemiology and the community at large, to
research that involves clinical trials of
drugs, to research that involves educational
methodology.
Q. In the research that you conduct as well as
in other types of research, what, if any, is
the importance of consistent climate
control?
A. Critical.
Q. Why is that?
A. First of all we need to have a very narrow
range of temperature in the building where
the research is conducted because the
instrumentation that conducts the research
is highly sensitive. The experiments in
many instances are temperature sensitive, so
the ambient temperature needs to exist
firstly for those reasons in a fairly narrow
range.
Additionally, some of the research
at the College of Medicine involves animals
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86
such as mice or rats. Those animals need to
be housed in a facility that is approved,
that is accredited by two bodies, the USDA,
US Department of Agriculture, and AAALAC,
AAALAC is the acronym. It's the body that
accredits the laboratory animal facilities
nationally. Both of those accreditations
are necessary in order to secure federal
funding from the national institutes of
health or from the USDA or from many other
bodies.
And even private funding agencies,
the March of Dimes or whomever, often
utilize federal standards, vis-a-vis housing
animals, and those standards are such that
the animals need to be maintained under the
most humane conditions possible, which again
includes a narrow ambient temperature range.
Q. Is any of the research that's done at the
University of Illinois College of Medicine
of any practical application?
A. I think so.
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87
Q. Can you give us any concrete examples.
A. There's research done on varicella there.
Q. What's that?
A. Which is chicken pox. There is some
significant funding for breast cancer
research. There is funding for a tropical
disease that affects about 300 million
people worldwide. There is funding for
better understanding of the brain relative
to several disease states of the brain.
One of our scientists this summer
as he does every summer goes to NASA. His
research is germane to space exploration.
Q. Now, the chicken pox, did your facility have
anything to do with the development of the
chicken pox vaccine that just came out?
A. A little bit, yes, because the investigator
there had a contract from the drug company
that was involved in producing that vaccine.
Q. Can you tell me about the grounds that the
School is set on.
A. Roughly 20 acres.
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88
Q. Okay, of which the building takes up do you
know how many acres?
A. Offhand I don't know. Maybe an acre or two.
Q. And what's the rest of that acreage devoted
to?
A. Well, parking space and border area, a lot
of which is trees and brush.
Q. In the time since you have been the acting
and now full-time dean, which I think is
around the early 1980s, other than Mr. and
Mrs. Furlan has anybody ever come to you
with a complaint that the University is
emitting noise that is bothersome,
irritating or in other words, just
generically bad?
A. Never.
MR. DEVINE: That's all I have.
MS. FRANK: Mrs. Furlan?
MRS. FURLAN: Doctor, we're all
impressed with what you do at your facility
and we are not at all trying to shut you
down. That isn't the purpose of why we are
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here.
MS. FRANK: Mrs. Furlan, you're
testifying again.
MRS. FURLAN: I'm so sorry.
MS. FRANK: You need to ask this
witness questions, whatever it is that you
are trying to elicit from him. You'll get a
chance to say whatever it is that you want
to say.
MRS. FURLAN: Then there are no
questions and I apologize if I'm taking up
people's time.
MS. FRANK: No, that's okay. Do you
have any questions for this witness, any
further questions?
MS. FRANK: No.
MR. DEVINE: I have no additional
questions.
MS. FRANK: Is there any reason to
recall this witness?
MR. DEVINE: I don't think so.
MS. FRANK: Thank you, Dr. Salafsky,
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90
and you are free to leave.
Mrs. Furlan, you may call your
next witness.
MRS. FURLAN: Mr. Jensen.
MS. FRANK: Can we handle this witness
the same way we did the last one?
MR. DEVINE: Yes, Your Honor.
MS. FRANK: Mrs. Furlan, after
Mr. Devine is done asking the witness
questions you'll have a chance again to
cross-examine him.
MR. DEVINE: Your Honor, actually I do
have a request. I think the Furlans are
also intending to call Mr. Zak as a
witness. I would prefer to reserve my
examination of my witness until after
Mr. Zak testifies.
MS. FRANK: That's fine. Then we will
recall this witness. Mrs. Furlan, you may
begin.
SCOTT JENSEN,
being first duly sworn, was examined and
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testified as follows:
DIRECT EXAMINATION
BY MRS. FURLAN:
Q. Mr. Jensen, in 1987 I wrote a letter to
Dr. Salafsky to which you responded.
A. Yes.
Q. The last paragraph of that sentence -- of
that letter is -- now, do I read this?
MR. DEVINE: Perhaps it can be marked
as an exhibit.
MS. FRANK: Yes. If you would enter it
as an exhibit then the Board will have a
copy of it. If there are any objection to
this being --
MR. DEVINE: No, I don't object to it.
MS. FRANK: Then the letter dated
August 13th, 1987 from Mr. Jensen to
Mrs. Furlan will be marked as Complainant's
Exhibit 1.
(Complainant's Exhibit No. 1 was
marked for identification.)
MS. FRANK: And if you want to -- do
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you have a copy?
MR. DEVINE: We've got a copy.
THE WITNESS: I have my copy.
MS. FRANK: You can just direct him to
that final paragraph, whatever your question
is.
Q. The last paragraph, that sentence, would you
read that, please.
A. It is also our desire that the University of
Illinois College of Medicine, Rockford, can
continue to be a good neighbor -- good
neighbors, end parenthesis.
Q. Then it is the intent of the School of
Medicine to your knowledge -- am I leading
again?
MS. FRANK: (Shakes head.)
Q. -- to be a good neighbor.
A. That's what we intended to write.
Q. And what is your position at the School of
Medicine?
A. I am the coordinator for physical plant
services.
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93
Q. We've met at Dr. Salafsky's office and then
again I believe Mr. Devine mentioned that
you were at our home on the west deck when
there were some readings being taken.
A. Yes, that is correct.
Q. Do you recall who else was there?
A. On the west deck, that was a daytime reading
with Greg Zak. You were there, your husband
was there. We were trying to communicate
using walkie-talkies and so there may have
been another member of my staff that had
returned to give me a walkie-talkie. Other
than that I don't recall that we had any
others present. Mr. Zak also had another
representative with him that was near our
air-conditioning unit, so on the west deck I
believe there was just Mr. Zak, myself and
yourselves.
Q. What was your conversation with my husband
and yourself on the deck?
A. I don't know. We were probably just doing
some type of chitchat. I don't recall
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94
exactly.
Q. Do you recall talking about where you live,
where you went to school, what your degree
is in?
A. I might have.
Q. In fact, we even talked about your shoes. I
noticed today they were just as shinny as
they were that day.
A. We were just doing friendly chitchat,
talking about different things.
Q. When you were there we also talked about the
noise.
A. Yes.
Q. Do you recall how you described that noise?
A. I don't know exactly how. I don't know how
exactly I described it. I did say that the
noise that was going on, it was perceptible,
so I could say that you could hear a noise.
I do recall saying that.
Q. Do you recall referring to it as a Chinese
water torture?
A. Oh, I think there was -- I did make
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95
something in kind of a jest comment of that
way. We were just talking a chitchat, and
in the conversation I basically said, you
know, we are trying to be a good neighbor.
We're not trying to be in a position to give
you something that would be an ongoing type
of thing and certainly it's not like Chinese
water torture. I put it in that context.
Q. What you've just said now, it is not like,
but is that what you --
MR. DEVINE: Objection, she's arguing
with the witness. He's testified as to what
he said.
MRS. FURLAN: But he said two things.
MS. FRANK: Mrs. Furlan, when you get a
chance to testify you can state --
MRS. FURLAN: At my closing, when I
make the closing?
MS. FRANK: Well, no, you're allowed to
call rebuttal witnesses which means you can
come back and make testimony again on the
record.
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96
MRS. FURLAN: Oh, that I can?
MS. FRANK: That would be your chance
to clarify things. Besides your closing
argument it would be your chance to clarify
anything that you feel needs to be clarified
from your testimony and having to do with
the testimony of any other witnesses.
MRS. FURLAN: Thank you. Thank you all
for your patience with us. Thank you.
That's all, Scott.
MR. DEVINE: Your Honor, I will
cross-examine Mr. Jensen, but I want to
reserve the right to call him in my case in
chief.
MS. FRANK: That's fine.
CROSS EXAMINATION
BY MR. DEVINE:
Q. Mr. Jensen, did you tell Mrs. Furlan after
being out there and hearing the noise that
you felt it was akin to Chinese water
torture to live there?
A. I made -- no, I did not say that that's what
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97
it was but I think I made that particular
comment.
Q. As you have described it, you didn't want to
put them through the Chinese water torture.
A. That is correct.
Q. You said that you heard a perceptible
noise.
A. That is correct.
Q. Could you compare the noise, for example,
to -- well, you live in a home here in
Rockford; right?
A. Certainly.
Q. In a residential area?
A. Yes.
Q. And does your neighbor have an air
conditioner?
A. Yes.
Q. And is that a perceptible noise?
A. Certainly.
Q. Is it in any way comparable to what you
heard on the deck of the Furlans' residence
at that time?
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98
MRS. FURLAN: Is he leading him? Is
that what you accused me of doing?
MS. FRANK: He's allowed to do that
during cross examination. When he starts
calling witnesses and he asks them questions
and then you get a chance to cross-examine
them, you will be allowed to ask leading
questions. It's just when they're your own
witness that you're calling that you can't
ask leading questions.
MRS. FURLAN: Thank you.
A. Our own neighbors have an air-conditioning
unit that's probably 25 feet away from our
bedroom window's two second-story rooms, and
yes, that is a perceptible noise and
certainly you can hear their air
conditioner. And I would say when we were
out on the west deck there was a perceptible
noise as well.
Q. So they're comparable.
A. They could be comparable to the effect that
they're both perceptible noises and that you
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99
can identify them as being from a particular
source.
Q. One wasn't overwhelmingly louder than the
other, was it?
A. No.
Q. Would you describe -- you heard, I think,
Mr. Seger testify. When you were at the
Furlan residence did you hear noise coming
from your physical plant that sounded like
you were at a railroad crossing?
A. No. There was a different noise but it did
not appear to me as if it was like that of a
railroad crossing.
Q. And whatever your comment was to the
Furlans, was it intended to show them that
you were going to try to do your best to
help them in whatever way you could and to
be a good neighbor as your letter said?
A. Yes, that is correct.
Q. Is it your opinion that the noise coming
from the School has been unreasonable or has
been the equivalent of the Chinese water
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100
torture to somebody who would be living
there?
A. No.
MR. DEVINE: That's all I have at this
time.
MS. FRANK: Okay. You may ask this
witness additional questions if you have any
based on what Mr. Devine asked him, but he
will also be recalling him and you will have
a chance at that time to ask him questions.
If there were things specific to the
questions he just asked, you may ask them
now. If they're new and different things --
MRS. FURLAN: No, they're not.
MS. FRANK: Okay.
REDIRECT EXAMINATION
BY MRS. FURLAN:
Q. Mr. Jensen, when you use the word
comparable, are you talking comparable in
sound, comparable in volume?
MR. DEVINE: I object only because I
think the question is impossible to answer.
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101
I didn't know there was a difference between
the two.
MS. FRANK: What do you mean between
volume and sound?
MRS. FURLAN: What does something taste
like? It tastes like such and such does.
Something else tastes like that also but it
could be different. Sound, it sounds like a
motor running or it sounds like a horse
running. A cow running and a horse running
are comparable. A motor running and an
engine running are comparable.
MS. FRANK: You mean type of sound and
volume. Do you mean -- let's wait a
second.
Mr. Jensen, when you said
comparable, did you mean that the volume
levels were comparable or that it was the
same type of noise?
THE WITNESS: It was the same type of
noise in reference to the volume. I'm just
saying that both units were perceptible.
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102
MS. FRANK: Okay.
MRS. FURLAN: Thank you, and okay, I
can talk later though, all right. Thank
you.
MS. FRANK: Okay. Is that all?
MRS. FURLAN: Yes.
MS. FRANK: Is that all at this time
for Mr. Jensen?
MR. DEVINE: Yes.
MS. FRANK: Mrs. Furlan, you may call
your next witness.
MRS. FURLAN: Mr. Greg Zak.
GREG ZAK,
being first duly sworn, was examined and
testified as follows:
MS. FRANK: Let's go off the record for
a second.
(A discussion was held off the
record.)
MS. FRANK: Mrs. Furlan, are you
ready?
MRS. FURLAN: I think so.
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MS. FRANK: Let's go back on the
record. Mr. Zak, I remind you that you're
under oath. Why don't we go ahead and mark
Mr. Zak's resume as Exhibit No. 2.
(Complainant's Exhibit No. 2 was
marked for identification.)
MS. FRANK: Is there any objection to
it being --
MR. DEVINE: No, Your Honor.
(Complainant's Exhibit No. 3
marked for identification.)
MS. FRANK: -- admitted? Okay, and
just to keep things straight, we'll mark
this letter of July 8th from Mr. Zak as
Complainant's Exhibit No. 3. I won't admit
it at this time. We'll allow Mrs. Furlan to
give us information on it first, but at
least we'll get it marked so that we all
know what it is.
Okay, Mrs. Furlan, you may begin.
DIRECT EXAMINATION
BY MRS. FURLAN:
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Q. Mr. Zak, do you recognize this?
A. Yes, this is a copy of my current resume
that outlines in some detail my experiences
in doing noise measurement work and noise
control engineering work in the last 24
years.
Q. Okay, thank you. And do you recognize this,
the letter?
A. Yes. This is a copy of a letter I sent to
you and to all the parties involved in the
case on July the 8th, 1994. It refers to a
report that's attached to it. I took the
liberty of attaching the letter to the
report for the hearing to hopefully assist
the Board in understanding the case.
In the letter I refer to some
fairly technical terms, and if I could take
the liberty at this point to briefly explain
the letter itself. The letter basically
states that as far as the numerical
regulations are concerned that the
University of Illinois School of Medicine
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has met the numerical standards.
At that point you had indicated to
me that you could still hear sound or noise
coming from the facility. Measurements were
taken in your home and from those
measurements I obtained what we call an
acoustical fingerprint of the sound
present. There was a very substantial noise
peak at the frequency of 57.3 hertz. Then
measurements were taken also -- and this is
documented in the report dated July the 6th
attached to the letter -- at the School and
at the School I did note that there was a
plain audible tone present at the Carrier
unit, which is one of the air-conditioning
units outlined on the map I'll get to very
briefly that is attached to the report, that
was of the same frequency and similar
magnitude as far as acoustical fingerprint
was concerned to the sound measured in your
home.
At this point I'll briefly
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describe the report. The report indicates
data that was taken to determine the degree
of compliance after efforts were made by the
University of Illinois School of Medicine to
bring their noise emissions into compliance
with the State regulations. I worked on
this with Mr. Scott Jensen. The first page
of the report is rather self-explanatory
giving the names and addresses of the
parties involved, dates the report was
taken. Near the bottom we have some
calibration levels and then finally my
signature as preparer of report and Mr.
Scott Jensen as a witness to taking the
data.
On Page 2 I have a brief narrative
that describes what was done on that
particular day as far as taking the
measurements. I explained in the area of
Page 3 of 5 that noise emissions from the
School were such that they were slightly
above the ambient, but in my professional
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opinion and the opinion of the American
National Standards Institute, the three
decibel higher measurement that we obtained
from School emissions as compared to ambient
emissions was not sufficient to indicate a
violation so that there was no numerical
violation present.
I also noted that the 57.3 hertz,
one-twelfth octave band that was measured is
not regulated by the Illinois Pollution
Control Board. Their finest increment of
measurement is a third octave. This is a
twelfth octave. It's a much more finer
gradation of measurement.
Going on to Page 3 of 5, again, we
see the measurements taken. The first
survey site 1-1 is the ambient measurement.
Site 1-2, same location, but one hour
measurement taken of the noise source, and
again, we see it is very close to the
ambient, slightly above, but not really
enough above to be considered a violation.
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And then finally another ambient
was taken at the conclusion that we cite,
1-3, and due to the fact that was a little
later in the day we see some slight
increases in some frequencies and some
decreases in other frequencies as far as
comparing it to the previous ambient.
Again, the results of 1-1 and 1-3 are very,
very similar.
Page 4 of 5 is a graphic
representation of what was measured. Again,
we see that the U of I School of Medicine is
very close to the ambient. If we look at
the regulatory limit at 2,000 and 4,000
hertz we see that the measurements indicate
quite a bit of exceedence, especially 4,000
hertz. This is largely due to insect noise
and is not really related to either the
School or -- this is basically due to the
ambient level.
Another comment on this graph is
this is an octave band graph. The Board
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rules refer to the octave bands as probably
the most common type of Pollution Control
Board measurement. Third octave bands are
used in some cases which gives you a finer
gradation. If we were looking at third
octaves right now we would see three times
as many points plotted as we're seeing on
this graph. Twelve octave bands we would
see twelve times as many points plotted or a
much more detailed picture of the sound
sources present.
Then following on Page 5 of 5 we
have a map that's hand drawn, not to scale,
of the area in question. This was a map
drawn by Mr. Doug Tolan who was working for
me at the time, and I also checked it myself
for accuracy, and it is a reasonably
accurate representation of the area.
I would draw everybody's attention
to the upper left-hand corner where we have
the University of Illinois School of
Medicine, and at the bottom of the building
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by the looks of the diagram there are some
trees and there are two square boxes, one
box has six circles in it and one box has
two circles in it. Those are
representations of air-conditioning units
located on the ground. The one labeled
Carrier on the left-hand side with the six
little circles on the top would be the unit
where I did identify a very noticeable 57.3
hertz tone.
The distance from the complex,
especially the air-conditioning area, to the
Furlan residence has come up several times
this morning. To the best of my knowledge
the distance was in the order of
approximately 500 feet, and I would be
looking at from the ground based air
conditioners to the Furlan residence with a
parking lot in between and then a creek,
grassy area and wooded area.
If I could take the liberty to
continue on, the report in the letter does
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describe a 57.3 hertz tone that I personally
observed in the Furlan residence and also at
the Carrier unit located on the grounds of
the School. The characteristics
acoustically of that frequency is that it
tends to be very penetrating of a normal
structure. By normal structure here I'm
referring to a home or a house. Based on
the testimony of Mrs. Furlan she did
describe that she heard in her house --
MR. DEVINE: I'm going to object to the
hearsay at this point.
MS. FRANK: Okay. Mr. Zak is an expert
witness although Mrs. Furlan has not so
qualified him. He is recognized by the
Board to be one and his resume stands for
that, so I am going to allow him leeway in
opinions on this. In a normal proceeding I
suppose it would proceed as an offer of
proof. If we were going -- well, it
wouldn't really because I'm going to allow
the testimony, but again, you may move to
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strike it later if you so choose.
You may continue.
A. Mrs. Furlan characterized the sound of the
emissions coming from the School as a
penetrating roar which is not inconsistent
with frequencies in the 50 to 60 hertz
range. The reason being is the typical
house -- and her house, I had been in her
house several times. A typical structure of
residential nature will filter out the
higher frequency sounds such as highway
noise -- typical highway noise, any of the
higher pitched sounds.
Low frequency or to put it in more
layman's terms, say rumble or base, does
penetrate that kind of structure very
readily, and I could hear the 57.3 hertz
plainly in the house. In addition,
Mr. Ferguson testified that upstairs in his
bedroom that was the only part of his house
where he could hear a sound coming from the
School. And again, this is not inconsistent
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113
with the 57.3 hertz.
The third witness, whose name I
failed to write down that was a friend of
the Furlans, indicated that the sound was
like a train or a plane roar, and again,
when recording airplanes and trains we'd see
quite a bit of energy in the general
vicinity of 31 1/2 hertz to 125, so 57.3
hertz would be very characteristic of a
layman describing train or plane noise.
Based on the descriptions from the
various witnesses, it does seem that they
are hearing a noise that they are testifying
that does disturb them.
MR. DEVINE: Wait, now I object. This
is beyond the scope of expert testimony. I
also object to his testimony that despite
the fact that he measures trains and planes
at 31 degrees, 57 degrees is consistent with
what a layman would describe unless he can
demonstrate some expertise in the area of
actually measuring what laymen would
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describe that as. I think that that's
impermissible opinion testimony and not
subject to expert.
MS. FRANK: As to your first objection,
I'm going to sustain the objection. As to
the second, I'm going to allow it and also
remind you that you need to object at the
time that he's stating it so that we're not
jumping back considerably.
MR. DEVINE: Sure.
MS. FRANK: I'm not disallowing the
objection based on that. I think that he
has the expertise to characterize -- he has
heard lots and lots of witnesses testify as
to what sound sounds like to them, and I
believe he has the expertise to make those
statements.
MR. DEVINE: Then I would ask that this
testimony kind of proceed in a little more
normal fashion. I've kind of allowed him to
proceed in the narrative with a great deal
of latitude. Now I think it's appropriate
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that we have a little more formal question
and answer type of testimony.
MS. FRANK: That's fine. Mrs. Furlan,
will you continue and ask the witness
questions.
MRS. FURLAN: Can he finish his last
statement so I can refresh where he was?
MS. FRANK: No, because I have ruled he
can't make that statement.
Q. (By Mrs. Furlan) How do you see the levels
and frequency of noise interfering with our
property, with our daily life?
MR. DEVINE: I object. I think that's
beyond the scope of expertise. That's the
area for testimony by people who have
testified.
MRS. FURLAN: Can I ask then how that
noise level would interfere if I take out
our property?
MS. FRANK: No. You can ask Mr. Zak
what he experienced when he was at your
house, but you cannot ask him how it
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would -- it is for you to testify as to how
it interferes with your life or your
property.
MRS. FURLAN: All right. How did that
sound affect -- I can't say lifestyle. He
didn't live there.
MS. FRANK: You can only ask him
questions which he would have knowledge and
understanding of.
Q. How did this sound affect you while you were
at our property?
A. The sound was audible.
Q. And how did it -- go ahead. How did that
affect you?
A. Other than the fact that I could hear it, it
had no affect on me.
Q. How long were you in the house with what
you're referring to now?
A. Perhaps an hour.
Q. You were in our home for an hour?
A. Yes, I believe it was approximately an hour.
Q. Is there any other factor that would magnify
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this sound to our home?
A. The two factors, one factor that's well
established, the filtering affect as I
testified to. Another possibility is if
there is any degree of resonance due to room
dimensions. If that is present that can
amplify the sound inside the house.
Q. As to where the noises originate, is there
anything there that would be a factor as
to -- God, I don't know what words to use,
to magnify or amplify or move it along?
MR. DEVINE: I think I'm going to
object. That's asked and answered. She's
repeating her previous question.
MRS. FURLAN: No, you know what I'm
trying to get at? If you shout at a wall,
it comes back, you know, or if something is
in a tunnel, you know what I'm trying to
say?
MR. DEVINE: Echo?
MRS. FURLAN: Yeah, how would you ask
that?
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MR. DEVINE: Your Honor, I don't want
to assist.
MS. FRANK: Mrs. Furlan, I believe the
first question had to do with magnification
at or around the house. I will allow a
question as to if there was anything on the
School's property that magnifies.
Q. Is there anything on the School's property
that magnifies --
A. Yes.
Q. -- or directs sound, do you know? Restricts
or rejects?
A. If we look at the map on Page 5 of 5 we can
see that the Carrier unit located directly
beneath the building -- the building wall is
quite high, several stories high, quite wide
and tends to act as a band shell such that
the noise -- any of the Carrier noise
directed at the building, which is about
half the noise, and noise tends to radiate
in all directions, is going to reflect off
the wall and be reflected in the direction
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of your neighborhood.
So you have the noise from the
Carrier that is not reflected traveling
directly toward the residential area. And
then in addition the noise from the back of
the Carrier unit is bounced off the wall and
also is directed to the residential area.
Q. On this diagram the -- I don't know if this
is being picky. The way the School -- it
looks like the building is here and our
residence is here.
MS. FRANK: You need to be specific in
what you are describing for the record.
MRS. FURLAN: Here's what I want to
say. This building, instead of being like
this is really more like this.
MS. FRANK: For the record --
MRS. FURLAN: I don't know how to tell
you that.
MS. FRANK: -- Mrs. Furlan is pointing
to the area on the map that is marked
Illinois School of Medicine older portion,
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and what you seem to be saying is that
instead of being tilted as far north you
believe that it is more in an easterly
direction so it's more --
MRS. FURLAN: Instead of this far
south, it is more easterly. Thank you.
MR. DEVINE: Well, that's testimony but
I object that she testified to it.
MS. FRANK: Is there a question for
Mr. Zak based on that?
MRS. FURLAN: No, but I wanted you and
whoever is going to read this to know that.
MS. FRANK: Mrs. Furlan, that is
something that you need to bring up when you
testify again. Right now you're sort of
acting as an attorney. Attorneys can't
testify, they can only ask specific
questions.
MRS. FURLAN: I can do this what, at
closing?
MS. FRANK: No. You can get a chance
to do what is called rebuttal testimony and
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you will get to make statements.
MRS. FURLAN: Okay, thank you.
And how do you suggest from your
experience, from your knowledge of this
problem, how can it be handled?
A. There are a number of approaches that can be
used. One common portion of my testimony
before the Board is to suggest the economic
reasonableness and technical practicability
of solving a noise problem.
Should the Board decide that this
57.3 hertz is a problem and want to pursue
potential solutions, there are a number of
possibilities based on my experience. I can
readily think of three approaches to use
with this type of situation along with an
approximate cost for each one.
Potentially the least expensive
approach would be to relocate the unit to
the northern side of the building, and the
building I'm referring to -- I'm on Page 5
of 5 of the diagram. I'm looking at the
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School complex building, and I'm thinking of
moving the Carrier unit from where it's
located around the corner to the
northwestern end of the building.
The Illinois EPA has moved units
of slightly smaller size 2 or 300 feet when
our headquarters building had noise
complaints about EPA air conditioners. The
cost involved when we moved seven units
approximately three years ago was on the
order of $18,000 for piping and labor.
A second possibility would be to
enclose the carrier unit with an acoustical
enclosure adding intake -- large intake duct
work, large exhaust duct work and using the
Digisonix noise cancellation technology that
has been proven effective in the low
frequency range at a cost in the
neighborhood of 13,000 to $20,000 based on
my experience of using that technology on
air handling equipment and projects for
Illinois EPA.
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The third potential method of
reducing the noise from the Carrier unit
would be if the unit is an older model,
which I'm not sure how old it is, if it were
an older model to replace it with a ground
source unit. The newer ground source units
are totally noiseless. The cost on a ground
source unit of that size, which I researched
for a similar noise case, would be on the --
would probably run approximately 30 to
$60,000. Those would be the three possible
ways that could be utilized to reduce the
tone at 57.3 hertz should the Board decide
to do so.
MS. FRANK: Okay. Mrs. Furlan?
Q. The last suggestion or option you gave was
replacing a unit. Is there any way anybody
could justify spending that kind of money
for an air conditioner?
MR. DEVINE: I think this is probably
well beyond the scope of anybody's expertise
unless they're spending the money
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themselves.
Q. Okay. Does this unit in energy savings pay
for itself?
A. Based on my experience dealing with the
ground source technology companies, their
estimate is typically a six- to ten-year
payback for the unit on energy savings to
lower utility costs.
Q. So then it would pay for itself.
A. Eventually, yes.
MRS. FURLAN: That's all I have. Thank
you, Mr. Zak.
MS. FRANK: Mr. Devine?
MR. DEVINE: Thank you.
CROSS EXAMINATION
BY MR. DEVINE:
Q. Let's talk about the last thing you said, a
six- to ten-year payback. In order to
really know about this building and this
unit and how soon, if ever, it would pay for
itself, you need to know a lot more than you
know right now, wouldn't you?
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A. I would need to know, again, if we're
dealing with a virtually brand-new unit or
an older unit.
Q. So you don't know how old the unit is.
A. That's true.
Q. You would need to know how efficient the
unit is, wouldn't you?
A. No matter how efficient it is, the ground
source technology now has proven to be --
even compared to the best technology, to
provide a payback in about ten years. If
the technology is older, the payback is in
three or four years.
Q. The pay -- does the payback include throwing
out, in essence, a perfectly workable unit?
A. Yes. But again, the payback time period is
very dependent upon how new the unit is. An
older unit, payback is relatively quick. If
you've got a new unit it would be a
relatively long period of time of paying
that back.
Q. It also depends on, I would suspect and
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correct me if I'm wrong, the size of the
building that the unit is cooling or
regulating because that affects, I assume,
how much energy is required to run the unit,
doesn't it?
A. It would typically -- the larger units are
more expensive than the smaller units but
then they're cooling a larger space.
They're also using proportionately more
electricity to do that. The size factor, if
anything, would probably tend to argue in
favor of changing out when you have a larger
scale unit than when you have a smaller
scale unit typically because I think the
cost per ton of the units and the labor
involved is somewhat less per ton on the
very large units as compared to the very,
very small units.
Q. The question is though that's a factor that
would be important to you in making the
determination that you've just talked about
in general terms.
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A. Yes.
Q. Okay. It would also be important to know if
this were the only unit cooling this
building and ran constantly during summer
season or not. That would be important to
know, wouldn't it?
A. Yes.
Q. In fact, you don't know how often this
particular unit, the one that you've labeled
as Carrier, runs, do you?
A. I know that it runs a considerable length of
time during the warm season in Rockford, but
that would be the extent of my knowledge of
its running.
Q. They have other units that they use, isn't
that true?
A. Yes.
Q. So sometimes they run the other units
instead of this one, sometimes they run the
other units in conjunction with this one.
Is that your understanding?
A. Yes.
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Q. And you certainly wouldn't be in a position
to tell me, for example, from June 1st of
this year until today's date how many days
that thing was turned on.
A. That's correct.
Q. Anything you said would be total speculation
on that.
A. That's right.
Q. And this issue you've discussed about the 57
megahertz refers only to this particular
unit; is that right?
A. If I could correct you, it's 57 hertz.
Q. I'm sorry, 57 hertz refers only to what's
coming out of this particular unit that you
have designated on your little diagram that
she says is incorrect as Carrier.
A. Correct.
Q. Okay. Has nothing to do with the heating
equipment in the building.
A. That's correct.
Q. Okay, so if Mrs. Furlan says she has
problems all year round that she describes
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in a manner that you say she's described,
for example, in December, it's certainly not
coming from that unit. You don't know where
it's coming from.
A. That's correct.
Q. So if she's experiencing those problems in
December none of these three solutions that
you've described is going to help her in any
way in December at least.
A. Again, assuming the Carrier unit is not
operating in the winter.
Q. This is an air conditioner.
A. I know, but I don't know for certain if it's
operated in the winter or not. Some do have
the capability to be operated in the winter.
Q. But assuming that at the School of Medicine
in Rockford, Illinois, which is however
north we are up here, they're not operating
their air-conditioning unit in December or
January, that's not the source of the
problem she's describing in those months and
the measures you've described wouldn't help
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her in those months at all; correct?
A. If the unit is not operated.
Q. Right, okay. And again, do you have any
suspicion, reasonable suspicion that they're
operating their air-conditioning unit in the
middle of the winter out there?
A. No.
Q. You have a couple of times -- well, let me
go to your report, and why don't you take a
look at your report, and why don't you take
a look at the narrative portion of your
report contained on Page 2, the third
paragraph, okay? And the first sentence of
that says, does it not, we discussed the
measurement -- I'm sorry, "The
instrumentation was set up at the foot of
the Furlan driveway." You agree with that?
A. Yes.
Q. Now, from time to time you have testified as
though you actually took measurements inside
the Furlan home. At least that's the way I
interpreted it and maybe I'm
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misunderstanding you. Where were the
measurements taken that are reflected in
this report?
A. Actually two areas. We included the
driveway, and then in the last paragraph we
refer to measurements that were taken inside
the house previous to this.
Q. Is that the paragraph that says a 57 DB
tone?
A. That's correct.
Q. Now, where in that paragraph is -- I'm
missing it, does it say that you took any
measurements whatsoever in the Furlan
residence?
A. It doesn't, but in fact, I did.
Q. Okay. Can I see the report that you have
with reference to those measurements.
A. There really was no report generated on
those specific measurements.
Q. So you didn't do a written report that
reflects those measurements.
A. I did not do a written report. Basically I
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was present in the house and I had the
instrumentation there and ran a quick scan
just to see what, if any, frequencies were
present in the house. In addition --
Q. Okay. Now, who was present -- I take it
this is a little different test than is
reflected in this report because this
report's talking about what you did
outside. Was Scott Jensen present or have
an opportunity to be present in the Furlan
residence when you took these measurements?
A. No, he was not present.
Q. Was it on July 6th, 1994?
A. No, it was before that.
Q. Do you know when it was?
A. Previous to this report Scott Jensen and I
took some measurements on the -- what we
referred to as the porch area. No, let me
correct that. I don't believe it was the
porch area, I believe it's the deck. Scott
and I had taken some measurements I believe
it was on the deck previous to this report
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here.
Q. And the question I have is when was that?
Simple question.
A. Several months before this report was done.
Q. Would it have been as much as a year
earlier?
A. It could have been a year.
Q. Do you have that report anywhere of those
measurements that you took anywhere from
several months to a year earlier of sound in
the Furlan residence?
A. I may have. I brought the entire record
with me, and I may have it in the record.
I'd have to go through the record and see if
I have it.
MS. FRANK: Let's take a break then and
allow the witness to look for that
evidence.
(A short recess was taken.)
MS. FRANK: For purposes of the record,
while Mr. Zak was looking for his
documentation we have been having a
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discussion about briefing. The parties have
agreed to simultaneous briefs to be filed on
September 3rd, 1996. The Board's procedural
rules state that mailed is filed, so as long
as the document is placed in a mailbox by
midnight on September 3rd, 1996 you have
complied with the Hearing Officer's order.
And just so that everyone is clear, at the
close of the briefs when the Board receives
these documents, the record will be closed
and they will begin to deliberate and make
their decision.
Okay, let's go back to where we
were at. Mr. Zak was I believe looking for
any report he had on the noise --
MR. DEVINE: I can perhaps start it
off.
MS. FRANK: -- from the Furlans'
residence from a memory that was taken at
some point prior to the July 6th, 1994 date.
Q. (By Mr. Devine) Mr. Zak, I would ask
whether or not you have located any report
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indicating either the protocol or the
results of the testing from the Furlan
residence that you have indicated took place
sometime prior to the report we've all been
talking about here today of July 6th, 1994.
A. I have located a document that is a letter
from Scott Jensen to the Furlans and I
received a copy of referring to testing that
we had jointly done on September 30th,
1993. That was the date that to answer your
question about when the measurements were
taken inside the home, there was a brief
measurement taken just to verify the
frequency of 57.3 hertz.
Q. Is that reflected in Mr. Jensen's letter
there?
A. No, it's not.
Q. Okay. Well, No. 1 question, do you have a
report of this testing that you say you did
from the Furlan residence sometime prior to
July 6th, 1994?
A. No.
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Q. Okay. Now, I think what you're telling me
is you know when you would have done this
testing based on nothing that you generated
but based on a letter that Mr. Jensen did
November 3rd, 1993 referencing a meeting
that occurred out at the Furlan residence I
think in September of 1993, September 30th
of 1993. Is that accurate?
A. It's accurate but also we did take some
measurements. It was more than just a
meeting. We also took some measurements. I
had a malfunction of some of the equipment,
and that is one of the reasons I
specifically remember that particular day
going into the house after Mr. Jensen left,
because I only had a minute or two of power
in the instrument to take a quick
measurement inside the house.
Q. Okay. Now, and you yourself apparently did
not record the results of that test anywhere
as far as you can determine from an
examination of your own file.
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A. And the reason was --
Q. Well, is that --
A. Yes.
Q. Okay. In this format I'll ask you when I
want an explanation, okay? All right. Now,
usually, I take it, because of the fact that
it happened initially on September 30th of
1993 and then again on July 6th, 1994, when
you conduct testing of this sort you arrange
to have a representative of the place that
is complained of present while you do your
testing; is that correct? Is that your
usual protocol?
A. It's usual protocol if we have been working
in conjunction with the facility which we
have in this case and if work has been
completed on reducing noise or hopefully
reducing noise. We want to verify what
progress was made, and under those
circumstances we would then notify the
facility, in this case the University of
Illinois, and work in conjunction with them
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taking the measurements, yes.
Q. Okay, so normally Mr. Jensen should have
been expected to have been present while you
conducted this test inside the Furlan
residence under the protocols you've just
described to us; isn't that right?
A. No, that's not correct.
Q. Why is that incorrect? What am I missing?
A. I believe that in September that the work
had not been completed yet.
Q. Well, but you had him there while you did
all this testing outside the house on that
date, September 30th of 1993; right?
A. Yes.
Q. That's why you wrote the letter.
A. Yes.
Q. Then you left. You did -- well, then let me
make sure that I have the sequence of events
correct here. You did this testing
outside. You determined, I believe, that
they were -- there were no numerical
violations at this point first of all; is
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that right?
A. Yes.
Q. Second, you determined your equipment was
malfunctioning; correct?
A. I had a battery problem, yes.
Q. Mr. Jensen left; correct?
A. Yes.
Q. And after you determined you had a battery
problem so your equipment wasn't
functioning, after Mr. Jensen left, you
said, well, let's go inside the Furlan
residence, and that's where you made this
measurement that you talk about not in any
report made simultaneous with September
30th, 1993 but a report you made some nine
months later on July 6th, 1994; is that
correct?
A. Not entirely. To try and help clarify
this --
Q. Well, just tell me what's incorrect about
that statement.
A. The last paragraph on the July 6th survey,
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1994, is a statement that is relative to and
was actually measured on that date. That
frequency and that level was measured in the
driveway as indicated in that report.
Q. Oh, okay. Well, then let me ask you, I
thought you were telling me that of the 57
DB tone, blah, blah, blah, 57.3 hertz was
from inside the Furlans' residence.
A. If I could clarify that, a year previous to
that I had verified that frequency presence
inside the residence.
Q. You got the same precise exact reading?
A. Probably not. I had the same exact
frequency but the level may have been
different.
Q. Frequency is where you're measuring it on
the octave band, is that right or wrong?
A. Yes.
Q. Okay, so you decided to take a measurement
on September 30th, 1993 in the Furlan
residence with your malfunctioning
equipment, and then on July 6th, 1994 you
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took a --
MS. FRANK: Excuse me for just a
moment. For the record I think it's
important for the Board to know what the
problem was with the equipment and whether
or not it was a malfunction or a battery or
what was happening, so I'm sorry, I'm going
to interrupt you, but Mr. Zak, could you
explain what the equipment failure or
problem was so that the Board will know.
THE WITNESS: Yes, the rechargeable
battery in the analyzer was getting very
marginal and it would tend to die after a
few minutes, so that would allow one to take
a measurement for a minute or two that would
be highly accurate, be no diminution in
accuracy because the entire circuit -- all
circuitry is digital, so it either works or
it doesn't. The problem I ran into
September 30th, the battery would not last
long enough to take a one-hour measurement
per the Board's requirements. In order to
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keep it going we boosted the power to the
analyzer from my car battery.
After Mr. Jensen left, the
analyzer can be disconnected from the car
battery and work for a few minutes before
the battery would die and give perfectly
accurate results. The Furlans asked for an
in-house measurement. I thought it would --
MS. FRANK: Now you're kind of going
past what my question was. So what you're
telling us is that the equipment when it was
on you believe was accurate although it was
not allowing you to take as long a reading
as you would have normally taken.
THE WITNESS: Yes. It would not take
as long and also when the battery voltage
would drop too low there wasn't sufficient
time to make a permanent record of what was
measured. It had to be measured visually.
It was highly accurate but it was only
possible to get the information visually as
opposed to a permanent.
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MS. FRANK: So you couldn't get a
readout as you normally would.
THE WITNESS: No readout and no disc
record.
MS. FRANK: Thank you. Now Mr. Devine,
you may continue.
Q. Did you have anything to do with the design
or manufacture of this instrument?
A. No.
Q. So when you say it's highly accurate, I
mean, that's a subjective belief on your
part. You don't really know that it's
highly accurate.
A. Yes, I do.
Q. How do you know that?
A. I've calibrated the instrument numerous
times and I'm very familiar with the
circuitry and technology of what is used in
the instrument. I specified with various
manufacturers exactly what I wanted and I
have used this instrument for thousands of
hours and am intimately familiar with all
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144
the workings of the instrument.
Q. So you've calibrated it before in a weakened
state such as this.
A. Yes.
Q. And what's the reason that a one-hour
requirement or measurement period is
desirable as opposed to one minute or less?
A. The Pollution Control Board requires one
hour.
Q. Is there any reason or is that just for the
heck of it?
A. That's based on regulatory hearings going
back to 1987. The one hour requirement was
introduced by General Motors. GM thought
that the one hour Leq would be the
preferable way to take measurements. I
performed research with a private consultant
funded by Energy Natural Resources from 1990
and '91. We had regulatory hearings before
the Board on the time duration for Leq, and
our result indicated that one hour Leq for
most situations was the most desirable way
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to take the measurement.
For reasons of fluctuation the
one-hour Leq gives a pretty accurate
reflection of human response to various
levels of noise.
Q. So you don't disagree with that standard,
that one-hour requirement.
A. No.
Q. You think it's the best way to determine
whether somebody is actually in violation or
not in violation.
MRS. FURLAN: I object. You're asking
his opinion. You didn't let me do that.
MS. FRANK: At this point I will allow
the question, but I also would like to state
for the record that the Board promulgated
these rules, it's well aware of why or why
not one hour is the time period of choice,
it's the body that decided on it, so we
don't need to go in depth as to whether an
hour is what it ought to be or not because
the Board has plenty of knowledge on that
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issue.
Q. In any event, this test of September 30th
was not even close to an hour. It was a
minute or so.
A. That's correct.
Q. Okay, and in fact, before we got off -- I
got off the track a little, not you, I'm
sorry. You, in fact, can't say that on
September 30th of 1993 in the Furlans'
residence that measurement was 57.3 hertz.
It was probably something different than
that.
A. No, I can categorically state that it was
definitely 57.3 hertz.
Q. Maybe I've confused you inadvertently. I'm
sorry. The 57.3 you testified I believe was
the measurement you drew on July the 6th,
1994 at the base of the driveway. Is that
right or is that wrong?
A. That's correct.
Q. I thought I asked you and I thought you
answered as follows. I thought I asked you,
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you mean that you got the precise exact same
measurement on July 6th, 1994 in the
driveway as you did on September 30th, 1993
in the house and I thought you said no, we
probably didn't get exactly the same
measurement. Did I misunderstand you?
A. You may have, because what I referred to,
there was not the frequency at 57.3 hertz
but the decibel level at that frequency.
Q. I'm sorry. I was the one who was mistaken
then. The 57.3 frequency is where you
measured at.
A. Correct.
Q. Okay, so you measured -- we know that you
say you measured at both frequencies on or
at that frequency on both days.
A. Correct.
Q. 57 decibels is what you recorded on -- in
your report of July 6th, 1994 on July 6th,
1994.
A. Correct.
Q. And that's probably not the decibel level
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that this machine would have recorded on
September 30th of 1993, is it, in the
residence?
A. Probably not.
Q. Okay, and in fact, you don't have any
specific recollection what that was.
A. That's correct.
Q. And you didn't record it anywhere.
A. That's correct.
Q. And I presume, but maybe I'm wrong, that if
you had measured this frequency on the 6th
of July, 1994 from some other place you
would have probably received a different
decibel reading than 57 if it was a place
other than the driveway; is that right?
A. Probably, yes.
Q. For example, if you were in their house you
probably wouldn't have recorded a 57 decibel
tone.
A. It could have been higher, it could have
been lower, that's correct.
Q. Okay. The solutions you discussed, you
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talked about spending some money to relocate
the unit to the -- I think you said the
north side of the building; is that right?
A. That's correct.
Q. And that would certainly help out, if
there's a problem, Mr. and Mrs. Furlan; is
this right?
A. Correct.
Q. But if there's neighbors on the north side
of the building, you're not really solving
anything, are you? Or maybe there's some
reason they would be less offended by this
noise.
MRS. FURLAN: Can I object to that?
He's making an assumption that maybe would
be -- you're painting a picture that isn't
right. It's not right what you're doing.
MS. FRANK: Mrs. Furlan, the question
is an allowable question. Mr. Zak is a
noise expert and I believe Mr. Devine is
trying to find out how the noise would be on
the other side of the building. That was
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one of the solutions that was proposed as
part of his direct testimony from you, and
Mr. Devine has the right to ask him
questions about it.
MRS. FURLAN: Thank you.
A. In answer to your question, from memory, the
north -- it's kind of a northwesterly
direction of the end of the U of I building,
would band shell the noise out in a
direction that is -- where the nearest
residence that would be situated like the
Furlan residence would be considerably
further away than the Furlans are currently
from the present orientation.
Q. Is that shown on your diagram that's
attached to your report where the nearest
residence would be?
A. No, it's not.
Q. And you saw no reason to do it at that
time. I'm not suggesting in any way that
this diagram is deficient, but there was no
reason to put another resident where the
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other residences were; is that correct?
A. That's correct.
Q. When is the last time you were out there?
A. It's been over a year.
Q. Do you know how many times in total you were
out at the Furlan residence or the School?
A. I would guess about half a dozen times.
Q. Over a two- or three-year period?
A. Yes.
Q. Okay, and the last time at which was over a
year ago?
A. Yes.
Q. And no time in which did you spend more than
an hour or two?
A. No, there was a couple of visits that
were -- entailed virtually a whole day.
Q. Is it possible that there are residents out
here that would be affected or are you
pretty darn sure that there would be nobody
that would be affected?
A. I'm pretty darn sure nobody would be
affected
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Q. How far away would somebody have to be in a
northwesterly direction not to be affected
in your view as an expert?
A. About twice the distance of the Furlan
residence to the present Carrier unit.
Q. So if you're within a thousand feet you'll
hear a noise. It will be a perceptible
noise.
A. That's true, yes.
Q. And I take it -- you talked about relocating
seven units at a cost of $18,000. That
doesn't necessarily translate to one-seventh
to relocate this unit now, does it?
A. That wasn't the intent. The intent --
Q. I understand but it doesn't, does it?
A. No.
Q. Okay. Can you give us any kind of accurate
estimate as to what that would cost or not?
A. Just to the accuracy of what it cost EPA to
relocate seven units.
Q. Okay, three years ago.
A. Yes.
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Q. Okay. Now, you talked about enclosing the
Carrier unit at a cost of 13 to $20,000.
A. Yes.
Q. Okay, and again, if the Furlans are
complaining of things that are happening
when this unit isn't turned on, that's not
going to be cost-effective at all because
they're complaining of other noises than
this unit, aren't they?
MRS. FURLAN: Can he do that?
A. That's true.
MRS. FURLAN: He's giving a yes or no
answer. I could not ask a question with a
yes or no answer.
MS. FRANK: Right. This is cross
examination. You can ask a yes or no
question.
MRS. FURLAN: Thank you.
Q. When you were out there on July the 6th of
1994 the wind was blowing from the Furlan
residence -- or I'm sorry, the wind was
blowing from the School -- a slight wind, to
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the Furlan residence. Is that not true?
A. Yes.
Q. Okay, and that would certainly have some
affect on the travel of the noise and its
ability to travel certain distances, would
it not?
A. Probably not, and I need to explain why it
would probably not. We're talking a wind of
zero to three miles an hour which is
virtually calm conditions, so it would be a
neutral type of situation. It wouldn't help
it and it wouldn't hinder it.
Q. If the wind is blowing the other direction,
say at a stronger than zero to three, it's
going to mean the Furlans are less likely to
hear noise.
A. That's correct.
Q. The humidity was pretty high that day. Do
you agree with that?
A. Yes.
Q. The higher the humidity the farther and
faster the -- or at least the farther the
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sound is going to travel; is that correct?
A. With a distance of 500 feet the effects of
the humidity would probably be close to
negligible. We note the humidity mainly to
be sure we're within the specifics for the
instrumentation itself.
Q. You mean humidity has no affect on how far
sound can travel?
A. It would have an affect but I think it would
be measured more in miles than feet so that
we're talking a distance of 500 feet. Any
affect of the humidity would be fairly
negligible.
Q. What was the reasoning for setting up the
measurements on July 6th of 1994 at the foot
of the Furlan driveway as opposed to, say,
in their backyard or some other place?
A. We chose the location where we thought we
would get the measurement as close to the
noise source as practical. Any other
location would have either been further away
or could have induced amplification due to
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reflection by the side of the house.
Q. And if it's further away, that means it's
less audible to the human ear?
A. That's correct.
Q. You didn't put it, for example, on the west
deck where the Furlans say they -- which the
Furlans say they don't use because the noise
is bothersome to them. Didn't take any
testing from that site; is that correct?
A. Not on that date.
Q. Now, during this period of testing, you've
heard testimony and I think you agree, that
both Mr. and Mrs. Furlan and Scott Jensen
were present; is that correct?
A. Yes.
Q. And there was some reference to
communication by walkie-talkie. I'm
assuming that was by walkie-talkie from the
Furlan residence to somebody at the School
plant itself so they could turn on and off
the air conditioner; is that right?
A. Yes.
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Q. You were able to conduct face-to-face
conversation with Mr. Jensen and the Furlans
in a normal tone of conversation, weren't
you?
A. Yes.
Q. Okay. You didn't physically feel any
vibrations from this unit or anything else,
did you?
A. No.
Q. Were you able to hear the gurgling fountain
that I've asked the Furlans about?
A. No.
Q. Don't remember it or --
A. I didn't hear it. I don't remember it and I
didn't hear it.
Q. You made note -- do you know if they had it
in place at that time?
A. I don't know.
Q. You don't know if it was turned on, turned
off, not existent or whatever reason?
A. I don't know.
Q. Would you have recorded it if you had heard
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it? Is that why you're so certain you
didn't hear it?
A. If I would have heard it, yes, I would have
made a note. There would be a very, very
brief note that I heard that.
Q. Now, as I understood it, the purpose there
was to determine whether the School was
within the regulated octave bands; is that
correct?
A. Correct.
Q. And referring to the narrative portion of
your report, says when there was an ambient
measurement -- well, ambient measurement
means before the School turned on its air
conditioner; correct?
A. Correct.
Q. The measurement slightly exceeded the
nighttime limits in most of the nine
regulated octave bands.
A. Correct.
Q. Does that mean that if this were coming from
some control level and external source that
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there would have been a problem as far as
the EPA was concerned?
A. No, but I need to explain that, why there
wouldn't be a problem with the EPA. If the
Furlans complained about another noise
source that we could identify, that might
have been a problem then. As long as
whatever sound was present, let's say the
ambient, and nobody's complaining about it,
as far as we're concerned there's no problem
then.
Q. But in terms of audibility to the human ear
it was actually above the standards that the
EPA sets for it.
A. These are Board standards, not EPA
standards.
Q. I'm sorry.
A. That's all right. It's true. What tends to
happen with the Board standards as far as
having an ambient present, the ambient
really becomes the Board's standard, because
what's applied is the ambient level. If the
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ambient is above what the Board's calling
for in its regulation, then in effect the --
we're measuring against the ambient. If the
sound source is -- and in this case is true,
say three decibels above the ambient, it's
close enough to the ambient that we would
feel there's no violation there.
Q. Well, actually I want to correct you. In no
case, as I read your report, did the ambient
increase by as much as three decibels; is
that correct?
A. I'd have to look in the report. If I
understand your question, if we look at
Page 3 of 5, specifically --
Q. A thousand?
A. -- at a thousand we start out with an
ambient of 35 and we completed the
measurement and took another ambient, got
the same ambient measurement. We got 39 for
the one Leq and also -- but we got a 39 for
the ambient, so the ambient had actually
gone up by itself four decibels during that
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period of time. If we look at, say, 2,000
hertz, the ambient there actually went down
a little bit. The School was putting out
35, the ambient was 32, but again, that's
within three decibels. And in my opinion,
even though it's three decibels above the
ambient, it's still close enough that it
wouldn't be appropriate to call that a
violation.
Q. In fact, on the 1,000 band the ambient when
you finished up is equal to the one hour
Leq.
A. That's correct.
Q. Okay, and in all other cases it's within one
or two other than the two we've just talked
about.
A. That's correct.
Q. And we're talking about what you hear. If I
understand it, what this chart on Page 3 of
5 shows us is a way to measure the way the
human ear would hear an increase over the
ambient from an external source of noise; is
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that right?
A. Yes.
Q. Okay, so what you're telling me is when you
turn on this air conditioner or when
somebody from the University of Illinois
College of Medicine turned it on at your
direction the increase was a slight increase
in the actual amount of sound that the human
ear could detect in terms of decibels.
A. Yes.
Q. And it's definitely small enough that it
fully fell within your numerical standards;
correct?
A. Yes.
Q. Why is it that the Board does not regulate
tones in finer increments than one-third
octaves?
A. The regulations were passed in 1973. The
technology for measuring sound at that point
in time made it somewhat difficult to
measure in third octave bands. The current
technology makes it very, very easy to
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measure twelfth octave bands, twenty-fourth
octave bands and even finer than that.
Typically when we take
measurements now we take them in very fine
increments and then combine those fine
increments into the larger increments of the
Board regulations and then present the data
to either the Board or the complainant, the
respondent, whoever wants the information we
then supply the information to. But we
typically take it in very fine increments to
be able to apply that to noise control
engineering.
If somebody wants to know
specifically, like for example in this case
here, we can use this as an example, where
is the problem, we can say it's at 57.3
hertz which is for noise control engineering
work or for electrical engineering work,
frequency is always a very important piece
of information to have on working on solving
the problem.
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Q. As you sat in the Furlans' driveway on July
6th of 1994 most of the noise you heard came
from birds and bugs. Am I right?
A. That's true.
Q. And turning on that air conditioner just
barely or slightly increased the noise level
above that.
A. Yes, in the driveway.
Q. At one time you referred to the testimony of
the friend whose name --
MRS. FURLAN: Mr. Seger.
Q. Mr. Seger, that's correct. Now, as I
understand it, the description of a plane
noise or a train noise would be something
that you would expect to find in the area of
30 to 40 DBs, not 57 DBs; is that correct?
A. Well, I need to -- I think you misstated
your question. I think you're talking about
hertz as opposed to DB and hertz being the
frequency. For aircraft and trains the
sound tends to fall in the range of
typically 31 1/2 hertz to 250 hertz, so it
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tends to fall in that general range. The
description most people give of either plane
or a train is when it's at some distance
away, and over a distance the lower
frequencies tend to predominate more than
the upper ones, and we would be seeing a
31 1/2 hertz through 125 hertz as being
descriptive of those two noise sources.
Q. Well, you actually measured in the allowable
levels as low as 31 1/2 hertz all the way up
to 8,000 hertz; right?
A. Correct.
Q. So all the noises that you detected fell in
that range; right?
A. I don't understand the question.
Q. Well, you're simply saying the type of
description -- maybe this would be a fair
way for everybody to understand. Is what
you're saying is the fact that he described
it as perhaps a noise of a train it's not
inconsistent with him hearing some noise at
the 57.5 (sic) hertz level.
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A. Correct.
Q. Okay, but there are a number of noises that
the human ear can detect at that level --
or strike that.
Okay, and you're saying that you
at some point from the driveway there
measured a noise that was also detected at
that level, is that right, at 57.3 hertz?
A. Correct.
Q. Okay, and you described it, indicated that
most people when they talk about a train or
a plane, they talk about hearing them at a
distance; is that right?
A. That's correct.
Q. And your testimony is presumed or I guess
based on the presumption that that's what
this gentleman is talking about; is that
right?
A. Yes.
Q. I mean, certainly as you stood there at the
foot of that driveway it didn't sound like a
train was running through their yard, did
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it?
A. No.
Q. Didn't sound like an airplane was warming up
or taking off next to them, did it?
A. No.
Q. Nothing close to that.
A. No.
Q. It was easy to carry on a conversation in a
normal tone, face to face.
MS. FRANK: That question's been asked
and answered.
Q. Okay, and under direct examination you said
the hour you were in the Furlans' home, that
noise had no real effect on you other than
that you could hear it.
A. That's correct.
MR. DEVINE: Can I take about two or
three minutes to review my notes?
MS. FRANK: (Nods head.)
(A short recess was taken.)
MS. FRANK: Let's go ahead and go back
on the record. Mr. Zak is under oath, and
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Mrs. Furlan, you may now ask any redirect
that you have.
REDIRECT EXAMINATION
BY MRS. FURLAN:
Q. You mentioned that 57.3, I believe,
frequency. Is there any other reason why
you were interested in that?
A. Yes. If we could look at Page 3 of 5 of the
octave band survey data of July the 6th,
1994 and we look at the site 1-2 where we
took the one-hour Leq of the noise source,
if we look at the numbers going from left to
right, at 31 1/2 hertz we've got 58 and at
63 hertz we've got 64, at 125 hertz we've
got 60. I notice that early on in this
particular complaint, and looking back
several years, there seemed to be a natural
peak in the measurements at 63 hertz.
In noise control engineering
whenever you see a spectral peak, as you
look across the entire spectrum we see one
octave band at 64 and 63 hertz. It's always
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of interest why that is. The 63 hertz
octave band is composed of 12 one-twelfth
octave bands. One of those one-twelfth
octave bands is 57.3 hertz, and that's where
we find a peak in the energy present at that
location.
And also when I went back to the
air conditioner we found it, and also I
testified about the -- taking a very brief
measurement in your bedroom the year
before. That's where the peak was and
that's why I remembered it because it --
whenever I do see a spectral peak I have a
tendency to go back and always check that
and see what kind of information I can find
out about it.
MRS. FURLAN: Thank you.
MS. FRANK: Do you have any further
questions.
MRS. FURLAN: No.
MS. FRANK: Mr. Devine?
RECROSS EXAMINATION
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BY MR. DEVINE:
Q. That peak that you described is a peak that
also occurs at the ambient; right?
A. That's correct.
Q. So the peak isn't necessarily attributable
to what occurs in between the ambient
testings, is it?
A. That's true.
MR. DEVINE: No further questions.
MS. FRANK: Okay. Thank you, Mr. Zak.
Mrs. Furlan, do you have anybody else that
you wish to call?
MRS. FURLAN: No, no. Unless -- did
you say I could answer some of the things
that were said now?
MS. FRANK: You will be able to do that
after the School's case in chief. They get
a chance right now to put on their witnesses
and then you will get a chance to answer
things, and I don't know if you're planning
on recalling Mr. Zak at that time or if it's
for statements that you wish to make.
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MRS. FURLAN: It will depend on what
Mr. Jensen would say.
MS. FRANK: Then Mr. Zak, I ask that
you remain here.
MR. ZAK: I will.
MS. FRANK: As much as you'd probably
like to start driving back to Springfield.
MR. DEVINE: That's fine, no
objection. I would call as my witness
Mr. Jensen.
SCOTT JENSEN,
being previously duly sworn, was examined and
testified as follows:
DIRECT EXAMINATION
BY MR. DEVINE:
Q. You are Scott Jensen and testified earlier
here today; is that correct, sir?
A. Yes.
Q. Mr. Jensen, I'm going to hand a copy of your
curriculum vitae to the Hearing Officer and
a copy to yourself as well, and I would ask
that the Hearing Officer mark that as --
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would it be Defendant's Exhibit 1?
MS. FRANK: Respondent's Exhibit 1.
(Respondent's Exhibit No. 1 was
marked for identification.)
Q. Respondent's Exhibit 1 and ask you to
examine and identify that document, please.
A. This is the CV that pertains to myself.
Q. Okay, and just tell us not everything that's
on there, but if you could briefly summarize
your educational background and your area of
what you do at the School and that sort of
thing.
A. I'm employed by the University of Illinois.
Essentially I work as a facilities manager.
In other words, I have a generalist
background to know about a bunch of
different things, from the running of the
heating and ventilating equipment, to
maintenance of the grounds, to
telecommunications, to parking, to safety,
to a wide variety of different options that
are under the supervision of the department
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for which I chair -- that I chair.
In my work experience you'll see
that my work experience has provided me with
a diversity of different types of work that
include work that would be involved in
engineering aspects as well as construction
aspects. My education is from the
University of Illinois at Champaign-Urbana
where I received a BS in architectural
study. Architectural studies do give you a
general background into many aspects that
are necessary for maintaining facilities,
and it is well appropriate as a
qualification for me to be working in the
present position.
Q. And you were present, I believe it's been
testified to already, at this testing of
July 6th, 1994; is that correct?
A. That is correct.
Q. And you were present on a previous occasion
the following September 30th, 1993?
A. That is correct.
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Q. Okay. Now, on September 30th of 1993 who
was present that time?
A. Mr. Zak, myself and both the Furlans.
Q. Okay, and on that occasion --
A. On the deck.
Q. Okay, and was -- you've heard Mr. Zak
testify that the School was within numerical
regulations, and that's your recollection as
well; is that correct?
A. That is correct.
Q. Tell us, if you remember, about the
equipment failure or the problem he had with
his testing. I wouldn't characterize it as
equipment failure, but do you remember that
occurring?
A. On the September -- yes, that is true, that
he did have a problem with the battery. The
testing that according to the EPA is
normally done in terms of nighttime testing
where you'd most likely be in noncompliance,
the testing that we performed at that
particular time was during the daytime, and
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the daytime showed that we were in
compliance.
Q. Did you want to be present during the
testing?
A. Yes.
Q. Why?
A. Well, to see that things were done
correctly, and it was also important in
order for the test to be validified (sic)
that I would be present because we need to
establish an ambient noise regulation.
Q. Why'd you leave before he did the test
inside the house?
A. I was not aware that that was going to
occur.
Q. He never told you he was going to do that?
A. I believe that he said he may have some
further discussions with the Furlans, and it
could be that at that particular time I was
unaware that any additional testing may be
going on inside the house.
Q. Okay. During that testing outside on the
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deck, did you have some discussions with
Mr. Zak and Mr. and Mrs. Furlan?
A. The discussions that I primarily had with
Mr. Zak were that of informational types of
discussions that were required for us in
order to perform the test. I had a
walkie-talkie in my hand at which then I was
giving directions to our own staff to turn
on and turn off particular units in order
that we could do ambient testing as well as
for Mr. Zak then to use the instrumentation
that we have during the daytime to help the
University to see if there may be a
particular piece of equipment that may be in
compliance or noncompliance.
Also at the other end of the
walkie-talkies we had another representative
from the EPA that came with Mr. Zak, and I
believe that you said his name was Doug.
MR. ZAK: Yes, Mr. Tolan, T-o-l-a-n.
Q. And how did the noise in the area inhibit
your ability to converse in normal fashion
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with either Mr. Zak or with the Furlans?
A. There's no inhibitation (sic). We could
easily talk comfortably within normal tones
of voice.
Q. Did you hear the testimony from Mr. Seger?
A. Yes.
Q. Did you hear anything that sounded like a
train or an airplane warming up or taking
off?
MS. FRANK: These questions have been
asked and answered.
MR. DEVINE: Not of this witness.
MS. FRANK: I believe on your cross you
asked them. If you want to briefly go into
it again, that's fine, as sort of a way of
background, but I remind you that you did
cross examine this witness.
MR. DEVINE: I apologize. I forgot I
asked these particular questions.
MS. FRANK: You can go ahead and answer
that.
A. No, they did not sound like that.
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Q. And you were also present during the testing
on the 6th of July, 1994.
A. Yes.
Q. And anything substantially different about
what you heard in terms of the noise levels
or in terms of your ability to converse on
that date as from September 30th?
MRS. FURLAN: Excuse me. I couldn't do
that. You're saying is there. You're
giving him a yes or no option and he's your
witness.
MS. FRANK: Your objection is
sustained. It is a leading question. If
you could rephrase your question.
MR. DEVINE: Certainly, Your Honor.
How did your ability to converse
or how did the noise externally differ on
July 6th, 1994 from when you were out there
on September 30th of 1993?
A. No difference.
Q. Describe very briefly your duties in
connection with these air conditioners and
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the heating units at the University of
Illinois College of Medicine.
A. Well, the heating, ventilating and cooling
units are all under the responsibility of
physical plant. I am the chief facilities
officer for the University and so they all
come under our direction. The actual
operations of the units are done by staff
that I have that would work on the units
themselves.
Q. Now, I'm going to hand you, sir, a volume
entitled Architectural Graphic Standards.
Do you recognize that book?
A. Yes, that's the book that I use as a
resource material that's in my office.
Q. That was in your office before you even
heard of the Furlans I take it.
A. Yes.
Q. Now, turn if you would to Page 60 -- I think
it's 64 of that volume.
A. You mean on Page 66?
Q. Yes, sir. There are two charts that you
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have discussed with me on that page, are
there not?
A. Yes.
MR. DEVINE: I've handed a copy of that
page to the Hearing Officer and would ask
her to mark that as Respondent's Exhibit 2.
MS. FRANK: It's been so marked.
(Respondent's Exhibit No. 2 was
marked for identification.)
Q. Now, what does the chart physical factors,
relationship of sound, intensity level and
loudness, what's that mean?
A. It's basically showing you that under a
decibel level, how that under normal
conditions certain things would operate. As
such that what type of decibels would you
expect for a certain sound to be emanating.
Q. Okay, and referring to Mr. Zak's report, we
see that most of those readings are between
60 and 70 decibels. Do you recollect that?
A. That is correct.
Q. And what does this chart tell us about
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readings at that level?
A. At a 60-decibel reading that is generally
considered as inside general office, would
be the normal type of decibel reading that
you would have, such as if you were to take
a decibel reading even in this office right
now you would have an overall decibel
reading at approximately 60 DB.
Q. Okay, and 70, which is somewhat louder, is
face-to-face conversation; is that correct?
A. That is correct.
Q. Okay. Now, there's a chart in the lower
left-hand corner of that page as well; is
that correct?
A. That's correct.
Q. And what's the -- what does that chart show?
A. It shows that the change in sound level,
what would the actual -- apparent changes
would be in loudness, how that you would
approach that, and essentially if we
increased the volume in the decibels by plus
or minus three decibels, the book that we're
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looking through here identifies that as
being just perceptible as in terms of
apparent changes in loudness.
Q. How does that square with the testimony of
Mr. Zak that the decibel level increases he
noted over the ambient level which were
within three were slightly perceptible?
A. I would say that that would concur with the
fact of what he is saying, that a three DB
increase in the sound level is a just
perceptible apparent loudness.
Q. How does that square with what you actually
observed when the air conditioning unit was
turned on on both September 30th of 1993 and
July 6th of 1994?
A. I would say that that would be very similar
in the fact that you could hear that the air
conditioner unit was on so that the air
conditioner unit was perceptible and so that
we had an increase approximately three DBs.
The air conditioning units were perceptible.
Q. Okay.
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MS. FRANK: Are you planning on
entering this as an exhibit?
MR. DEVINE: I would ask that it be
entered.
MS. FRANK: Then we need a little more
information about the book, so if the Board
wants to go to it they can, so if you can
give us an author and a copyright date.
MR. DEVINE: And an edition, perhaps.
THE WITNESS: The book is called
Architectural Graphic Standards. The
authors would be Ramsey/Sleeper.
MR. DEVINE: Actually Ramsey/Sleeper.
THE WITNESS: This is the seventh
edition to the book. The book is actually
published by the recognized authority called
the American Institute of Architects, and
the publisher is John Wiley and Sons.
MR. DEVINE: And when was this
particular edition published, if you can
tell us that.
THE WITNESS: This was copyrighted in
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1981, the first, and I know there's multiple
editions to the book.
MS. FRANK: You said this was the
seventh, so.
THE WITNESS: Copyright in 1981.
MS. FRANK: Is there any objection to
this being admitted into evidence?
MRS. FURLAN: None that we would know
of.
MS. FRANK: Then Respondent's Exhibit 2
is entered. Did you wish to enter
Respondent's Exhibit 1 also?
MR. DEVINE: Yes, I did, Your Honor.
MS. FRANK: Why don't we go ahead at
this time. Is there any objection to the
resume being entered in evidence?
MRS. FURLAN: No.
MS. FRANK: Then Respondent's Exhibit 1
and 2 are admitted into evidence.
Q. (By Mr. Devine) Mr. Jensen, how long have
you been affiliated with the College of
Medicine?
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A. Ten years.
Q. And could you describe for me what the
physical plant is like and the grounds that
the School sits on.
A. We essentially have 157,000 square feet of
buildings on approximately 20 acres of
land. The buildings were built at multiple
times even though the two -- one building
basically is a separate building, a single
frame building. It was built approximately
1946. The other buildings that were built,
one was built approximately 1916, another
one was built approximately 1946, another at
approximately 1975, and another one in
approximately 1976.
All of those buildings are
contiguous and they were done at the time
that the University was expanding -- I mean,
the later buildings were done at the time
the University was expanding and locating
their presence to this site formerly known
as the Rockford Municipal Tuberculosis
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Sanitarium.
Q. And I want you -- well, let me get myself
squared away before I do that. Your office
has at my direction prepared some charts and
diagrams depicting the layout of the School
and its relationship to the Furlan
residence. Is that not true, sir?
A. That is correct.
MR. DEVINE: Now, Your Honor, I would
like to mark the large chart and then I have
some identical exhibits that are smaller in
nature that can also be received.
MS. FRANK: The chart will be Exhibit
4, Respondent's Exhibit 4. I can do that.
I don't stick -- you don't mind if I write
on it?
MR. DEVINE: That's quite all right.
He even left a place for it.
(Respondent's Exhibit No. 4 was
marked for identification.)
MR. DEVINE: And should I mark this
exhibit separately?
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MS. FRANK: If you want to hand it to
me I'll just mark it as a copy.
MR. DEVINE: And these photos are also
copies, Your Honor.
MS. FRANK: Copies of Exhibit 4?
MR. DEVINE: Yes.
MS. FRANK: Okay.
MR. DEVINE: Your Honor, I also have
marked a large exhibit as --
MS. FRANK: Exhibit 5.
MR. DEVINE: -- 5.
(Respondent's Exhibit No. 5 was
marked for identification.)
MR. DEVINE: That's fine. I put --
took the liberty of placing Your Honor's
initials on there as best I could.
MS. FRANK: That's fine, and that's an
aerial view.
MR. DEVINE: Yes, it is, Your Honor,
and we also have from that aerial view a
copy which I will submit to the court as a
copy of Exhibit 5.
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MS. FRANK: Okay.
MR. DEVINE: Mrs. Furlan, can you see
these okay or would you prefer to look at a
photocopy?
MRS. FURLAN: Yeah, if you have it.
MR. DEVINE: I want these back.
MS. FRANK: You have a extra photocopy
for her to look at for right now?
MR. DEVINE: Yes, I do.
MS. FRANK: Okay.
MR. DEVINE: May I proceed, Your
Honor?
MS. FRANK: Yes, please do.
Q. (By Mr. Devine) Mr. Jensen, we have set up
charts here and provided the court and the
Furlans with copies of those charts and
marked those charts or exhibits as
Respondent's Exhibits 4 and 5.
Could you first take a look at
No. 4, describe what that is, how it was
prepared and what it depicts, if you would.
A. Exhibit No. 4 is a visualization of our
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property, and it basically took a blueprint
which shows the grading and it shows the
slope and the lay of the land. It is a
scale drawing for which that under here you
can see the -- apparently I've wiped off the
scale, but it's at a scale, it is a scaled
drawing for which then you can see the
actual distance for which that it would be
working.
What I've depicted on the drawing
is basically this section in white on the
drawing is all of the University property.
The approximate location of the Furlan
residence is over here over on the
right-hand side of the exhibit. The units
that Mr. Zak was talking about in reference
to his particular drawing and then also what
Mrs. Furlan was representing to are located
right through here. This unit is the 90-ton
Trane unit. This one is a 60-ton Carrier
unit.
MS. FRANK: You need to describe for
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the record what you're pointing at maybe in
relation to marks you have on the map.
A. So that I'm looking at first of all where on
the exhibit it says air-conditioning units
with an arrow pointed to that, that arrow
represents the 60-ton Carrier unit.
Q. And that's between Photographs No. 1 and 5;
is that correct?
A. That is correct.
MS. FRANK: Okay.
A. Now, in order to get a depiction of where we
are relative to our property to their
property for which the sound would obviously
travel from one property location to another
property location, I've taken some
photographs that would be of relatively on a
condition that would provide for what would
be a line of sight, therefore a line of
sound travel.
Photograph No. 1 is taken
approximately through here and is looking at
the location of our air-conditioning units
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that were in question by Greg Zak of the
90-ton and the 60-ton unit looking toward
their property. That is what photograph
No. 1 represents.
MS. FRANK: The location is marked on
the map by your No. 1 with an arrow and that
is where you were at the time you took the
photograph?
THE WITNESS: Yes, that is the
approximate location I took the photograph.
Q. Which of the Carrier units, the 90- or
60-ton is the one that Mr. Zak focused in on
at the 57.3 frequency?
A. It is the one which the arrow is pointing
directly to.
Q. And which one is that, 60 or 90?
A. That's a 60-ton Carrier unit.
Q. Does that operate all the time, by the way?
A. No.
Q. Does it operate at all from, say, September
15th 'til May 15th?
A. Weather dependent. You could have a hot
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October and you may run some things in
October.
Q. But it would be a rare occasion.
A. Oh, in October we basically would shut --
these units would be shut down for the
winter. They're taken out of service for
winter operations.
Q. Does that unit run continuously say from
June 1st to September 1st or are there
periods where it is on and periods where it
is off?
A. There are periods it is on and periods it is
off. We switch the air-conditioning units
to being on relative to the air-conditioning
load that we may have at present and so that
there may be times for which that neither
one of these units are operable.
Q. Because you have other units as well.
A. Because we have other units that take care
of the load.
Q. Is the unit that Mr. Zak has been
discussing, is that on today, do you know?
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A. I don't know.
Q. Can you give me an estimate of -- an
estimate of the percentage of time it would
run during the summer months in your
experience or not?
A. If I could just check something through here
if you'd like. I'm looking for a notation
through here that I asked my staff to
prepare for me that in 1994 we ran the 60-
and 90-ton Trane units for a total of 1,209
hours.
Q. Now, that means that's both of them, their
hours added together; is that right? In
other words, you can't break it down any
finer than that, whether the 60 was on 1,208
of those hours and the other one was on one
hour or anything differently than that.
A. The 60- and the 90-ton air-conditioning
units can run independently or they can run
in tandem, and so that the figures that I've
asked my staff to prepare for me would mean
that it would either be run -- the 60 would
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be run either singly or in tandem.
Q. The same for the 90.
A. The same for the 90. I guess that's the
most accurate way I can get the
information. I can't tell you in any more
finer detail than that.
Q. And that would be during the entire calendar
year of 1994?
A. That would be during the cooling season.
Q. How do you define the cooling season?
A. Cooling season would probably start in May
and end in October.
Q. Okay. May 1, May 15th?
A. Whenever they're put on line. In some cases
you may put units on line in April. It's
all weather dependent.
Q. Why don't you continue on and show us what
that diagram is exhibiting.
A. So we're taking a view from the
air-conditioning units that were
questioned. Then we move over to Photo
No. 2. We are now looking midway between
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the air-conditioning units and the Furlans'
home, and this would be the view that we
would get, and that would be the view of
their house from that standpoint.
Moving again, coming on-line
looking at Photo No. 3, in Photo No. 3 we're
still on the University property. We're
looking through the trees and in this photo
that is where you can see their house.
Their house is present in the photo and that
would represent the west deck of their
house.
Then looking back from their home
if we were taking -- basically where Hampden
Court comes, if we just take a few steps or
walk a certain distance off of Hampden Court
and then look back toward our property,
Photo No. 4 would be looking through here,
and therein between these grove of trees you
can see our facility in Photo No. 4.
Q. So Photo No. 4 has an arrow depicting the
line of view that it is taken; is that
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correct?
A. Correct, and so that what we see in the
photo, we'd see a portion of the building
right in through here.
MS. FRANK: Right in through here
being?
THE WITNESS: Right where it says
loading dock and near loading dock. It
would be on the north -- it would be
basically you're seeing a picture on the
north side of the building.
MS. FRANK: Okay, thank you.
Q. From that area is it possible to see the
area that you have marked as
air-conditioning units and that you've
testified before as to those two particular
units? From No. 4 can you see that, those
units?
A. In Photo No. 4 it does not show the
particular air-conditioning units. It just
shows the building which means that it
would -- if the photograph was a panoramic
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it would be -- those particular units would
be on the far right-hand side of the photo,
but they're not evident there.
Q. Are they viewable or are they screened?
A. They're screened.
Q. By what?
A. They're screened by bushes and shrubs and
trees and other type of things that would --
that you would not be able to see things
from the Furlans' home.
Q. And No. 5, what does that show?
A. Photo No. 5 is actually a picture of the
air-conditioning units close to the
air-conditioning units standing on our
driveway that goes around the building, and
now we're looking at the 60-ton Carrier
unit. You can see a portion of the 60-ton
Carrier unit in the middle of the picture in
the bottom, and the rest of it now you see
we have shrubbery, we have trees, and you
cannot see the 90-ton air-conditioning unit
which would be behind the trees.
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Greg Zak is referring to the --
when he referred to a correction, you know,
in terms of the wall, this would be -- you
know, that would be the wall that he was --
the vertical wall that he was referring to
that he thought perhaps there could have
been a possibility of sound bouncing off the
wall toward the Furlan residence.
Q. And can you tell me in terms of distance the
distance from where those units are located
to the Furlan residence.
A. From this unit through here to the
approximate location of the Furlan
residence, when you scale the drawing off
I'm guessing that it's in the neighborhood
around 800 feet from that portion of the
building.
Q. And that's -- is that a pure guess or is
that a pretty educated guess, and what's it
based on if it is an educated guess?
A. It's based upon the drawing telling you how
many feet there are per inch and then you
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take the measurement by simply putting a
ruler on the drawing, measuring the number
of inches and multiplying the scale factor
that's on the drawing.
Q. And you've walked that distance yourself,
haven't you?
A. Yes, I have.
Q. And is that consistent with what the scale
drawing tells you you're experiencing in
walking it?
A. Yes.
Q. Okay. Turning to No. 5, that depicts, does
it not, an aerial view of the School and the
surrounding area?
A. Yes. This exhibit is actually produced in
this building. It's produced by the
Winnebago County Recorder of Deeds. This
photograph was taken in 1989 and represents
the aerial view, and also representing --
the aerial view also then puts onto it the
property line so you can see an exact
location of where our property is and where
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the Furlan property would be.
Q. Can you show us where the Furlan residence
is.
A. The Furlan residence is on Hampden Court
which is in the center of the drawing or the
exhibit and then you will find where Hampden
Court dead ends at the University property.
The Furlan residence is just to the north of
the dead end and you can see that their
ranch style house is in that property.
MS. FRANK: Is it where it says 007 and
14? We're looking at the same spot?
THE WITNESS: Lot No. 14 and 13 just
north of the reading of the dead end and
Hampden Court.
Q. Now, looking at that from the aerial view,
can you show us also on this aerial view
where the air-conditioning units, the 60-ton
and 90-ton unit are located.
A. The 60-ton and the 90-ton units are
located -- well, they're located on this
hill in the shrubbery. I'm finding a hard
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time actually seeing them in the photograph.
MS. FRANK: By this hill --
A. It would be right there, and basically we're
looking at the building -- the University
building basically looks like a square
building with a finger that extends off to
the left-hand side. The finger that extends
off to the left-hand side which then has a
northeast facade to it, you'll find the
air-conditioning units at that -- near the
end of that portion of the building. And
from this drawing it's even hard to depict
where the air conditioning units are from an
aerial view because of the amount of trees
and shrubs that are covering it.
Q. Just maybe to help a tad in terms of the
record, directly above that finger that you
have described, there's a rectangle with the
numbers minus 016 and then 1.03 directly
above that; is that correct?
A. That's correct.
Q. And if you take that straight down that's
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the general area of where that air
conditioner is located; is that correct?
A. Yes, that is correct.
Q. Now, I see a -- what appears to be from this
aerial view a grove of trees that is
directly between the Furlan residence and
the School. Do you see --
A. That's absolutely correct. We have a grove
of trees that's located here and then
there's another grouping of a grove of trees
that's directly in front of the Furlans'
residence. There's a small little meadow
that occurs at the end of Hampden Court that
separates the two grove of trees that would
be serving as a buffer between the
University of Illinois and the Furlan
property.
Q. Okay. Can you tell me the dimensions of
the, I guess it would be the southernmost
grove of trees, if you would, or do you
know?
A. I don't know exactly what it would be, maybe
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200 feet or something like that. I don't
know exactly.
Q. 200 feet northwesterly to southeasterly?
A. Yeah, something in that neighborhood.
Q. And the other grove is somewhat smaller than
that.
A. And the other grove is smaller than that.
Q. Can you show us on this aerial photograph,
one of the solutions that Mr. Zak suggested
was moving these units. Remember that?
A. Yes.
Q. Do you remember where he suggested that --
A. Mr. Zak said that the units located at the
northeast portion of this little finger that
comes out of the building be located around
basically to the northwest end of the
building, and if you locate it to the
northwest end of the building, then we have
houses that would be in here maybe 150, 200
feet away.
Q. Much closer than --
A. In contrast to the about 800 feet away for
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the Furlan residence from this particular
air-conditioning.
MS. FRANK: Are you talking about then
the houses on the south side?
THE WITNESS: I would be talking about
the houses that would -- are bordered on
Parkview, far left-hand portion of the
drawing.
Q. And I see for example -- oh, that's the
front. Yeah, lot numbers, for example, 015,
014, 013, 012, do you see those?
A. Yes, yes, I do.
MS. FRANK: Thank you.
Q. Now, Mr. Jensen, you have had the occasion
to have contact with the Furlans, reference
their complaints over a fairly -- over a
period of time. Is that not true?
A. That's absolutely correct.
Q. During that course of time have you done
anything to try to lessen the noise that's
coming from the University?
A. Yes, we have.
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Q. What have you done?
A. We have worked on several units within the
University. We hired an independent firm in
order to perform testing for us so that we
could control it and that we could then see
if we maybe had some units in suspect in
terms of compliance. We then from that
information then made corrections to several
heating and ventilating and air-conditioning
units to provide for what we thought then to
be a place for which the University of
Illinois could definitely pass the EPA
test.
The type of equipment that we
performed we actually -- we performed many
different types of things. We put extenders
on top of exhaust fans so that you had an
acoustical duct work to go up on top of an
exhaust fan.
Q. What would that do?
A. What would that do?
Q. Yes.
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A. Well, it works on two points. If you have
air that's exiting from an exhaust fan in
the facility, one is that you try to absorb
the air before -- I mean, absorb the sound
before that it goes out because then it has
the opportunity to hit back and forth on
sound absorbing material before it exits out
into that. In addition to that then you
actually are directing the sound more in an
upward fashion rather than in an outward
fashion that would then have the sound going
toward the Furlans.
Q. That's one of the things Mr. Zak talked
about; right? Didn't he talk about
directing it up rather than bouncing off the
walls of the School?
A. No, I don't believe that he said that
exactly. He said that on this elevation
through here there's a possibility that the
sound may be bouncing off of the brick wall
of the building.
Q. Okay.
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A. But to answer that specifically, we then
made corrections to the 60-ton unit by
providing the sound rather than to be
bouncing off the unit. We basically made an
enclosure that was on top of the unit
itself, enclosure maybe about 12 inches, 12
to 18 inches for which that when the fans
worked, in order to cool, the sound would
then bounce off from these type of things,
so we actually -- at that particular unit we
were bouncing the sound upward rather than
having the sounds under a normal condition
on a fan to go to the sideways for which
that it may have hit the building. So we've
already tried to provide for a correction
for which Mr. Zak has already indicated
could have been a potential added effect to
noise transmission to the Furlan property.
Q. What, if any, other types of measures have
you taken?
A. We have taken a boiler stack and a boiler
stack pad on it, a Chinaman's cap, which in
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order to describe it basically, you have a
boiler on top of the boiler. There's a hat
on top of it and it's shaped in a cone. We
call it a Chinaman's cap. We replace that
whole stack of the boiler and then put in a
large boiler stack that just directed
everything upward. We wanted to decrease
any possibility that any noise that may be
coming out of our boilers then may be
reflecting and going sideways toward the
Furlan property, so that's another
improvement that we've made.
Other improvements that we've made
on some other air-conditioning units, we've
taken the actual exhaust of the
air-conditioning unit and rather than having
the unit itself just directly exhaust to the
outside, we have added duct work on the end
of the exhaust. And in the duct work that's
added on the end of the exhaust, that duct
work is lined with insulation material and
it takes multiple turns. So in the process
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of taking multiple turns the sound has the
opportunity to bounce off one wall, to
bounce off the other wall, to bounce off
another wall, so basically your sound is
reduced for that particular unit, and it's
less being emitted on that particular unit
because of the corrective measures that
we've taken.
Other examples that we have done
for units is simply in many cases a fan on
top of an air-conditioning unit will have a
grill cage. That grill cage then is for
protection of the fan so somebody --
basically for a safety reason so someone
would not stick their hand into a turning
blade but you obviously need to have it
exposed. Under those places where we had
the fan actually join to the mechanical unit
itself, which is a metal-to-metal
connection, we replaced those metal-to-metal
connections with rubber washers or other
type of insulating material to provide for a
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210
less of a vibrating type of sound.
And that was -- we've done what I
described in the 60-ton unit in terms of
making a box on top of the unit to direct
the sound upward, we've done that on
additional units. Another aspect that we've
done is we've actually purchased some
material that was recommended by the
consultant that we hired to provide for
the -- to provide for a way of lessening the
sound.
Q. Is this it?
A. That is the material.
MR. DEVINE: Let me -- could these be
marked?
MS. FRANK: Sure.
THE WITNESS: They're a little
different but they're similar.
MR. DEVINE: Mark them both please,
Your Honor.
MS. FRANK: The one with sort of the
tin foil on it will be No. 6 and the other
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211
one will be No. 7, and I can't mark those
right now because I don't have any stickers
with me, but I will mark them 6 and 7.
(Respondent's Exhibit Nos. 6 and 7
were marked for identification.)
Q. Mr. Jensen, I'm going to hand you first of
all what will be marked as Respondent's
Exhibit No. 6, and I would ask you to
describe that to the court, if you would, to
the Hearing Officer.
A. This is a sound absorbing material. It
actually is similar to that of a foam and it
has a silver Mylar reflective substance on
top of it. We use this material on the
exterior of air-conditioning units so that
it would be able to absorb any sound. It
would also then serve as a dampening effect
for vibration of sound. You need to have
the Mylar on top of it so that the weather
would not damage it, so this was used on the
exterior of some of our air-conditioning
units. Particularly we use that on the
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rooftops of the air-conditioning units, and
you could see that in presence, say, for
instance, on the 90-ton unit.
Q. Okay, and handing you what's going to be
marked as Exhibit No. -- Respondent's
Exhibit No. 7, could you please tell us
about that.
A. This particular product is also a sound
dampening -- it's a sound dampening material
and an acoustical material. In itself it's
composed of basically three layers. One is
a foam backing, and sandwiched in between
the two pieces of foam backing, it's a lead-
lined material. This lead-lined material in
through here provides for mass. In order to
reduce sound with a piece of sheet metal
that may be vibrating, you want to increase
the mass of the unit so you don't have a
piece of flimsy material going that could
cause any type of vibration or cause a
sound.
This material increases the mass
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213
of the unit. Not only does it increase but
we're using this as a sound absorbing
material, and this material was installed on
the inside of the air-conditioning units
where typically you would find the
compressor for the air-conditioning units.
Q. Now, during your testimony in the last few
minutes you've been talking about corrective
measures that the University has taken and
you have basically referred generally to air
conditioners. How many units does the
College of Medicine have, if you know?
A. I'm just -- I don't know. We have a bunch
of little rooftop -- we have some smaller
rooftop units. We may have as many as ten,
ten units.
Q. Now, what of those measures that you have
described were used with reference to the
specific unit that Mr. Zak made reference to
and measured at the 57.3 frequency?
A. That would be in terms of the 60-ton Carrier
which again on the -- on Exhibit No. 4 is
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depicted by the arrow. We performed sound
dampening material installed inside of the
unit itself. Next we put a Mylar material,
we put it on the top, and we also provided
for a separation of the fan cages or the
housings that provide for that with the top
dampening material.
In that particular unit we also
then put this enclosure on the top of the
unit in order to direct the sound upward for
which that I further described. In addition
to that in case that we've had sound
emission that may be coming from the unit
outward, we basically filled a portion of
the bottom of the unit with -- we lined the
bottom of the unit with material similar to
this and then injected foam into the bottom
of the unit. So we have the unit with the
bottom of it being injected with foam as a
sound absorbing material. We have the
inside of the unit prepared with the sound
and dampening material. We have the
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215
exterior of the unit where parts have been
separated, and we've also put on a hood,
shall we say, on the top of the unit in
order to redirect the sound upward rather
than outward.
Q. This has been an ongoing process, I take
it.
A. We did all of these within the period of
the -- approximately a year so that we
would become then in compliance with the
regulations when we asked the Illinois EPA
to actually perform night testing to prove
the fact that we were in compliance.
Q. And all these things that you did were in
direct response to the complaints raised by
the Furlans in an attempt to lessen the
noise.
A. That is correct.
Q. And how much money, if you know, was spent
on these corrective measures that you have
described?
A. We spent over $22,000 in funding for this.
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Those funds included for the paying of
consultants, it included for the paying of
materials, and it also included for the
contractors. Not included within that
particular $22,000 is the in-kind labor that
was done by our physical plant employees in
order to install some of the foam and to do
some of the other dampening projects within
our air-conditioning units which were a
sizable amount of work, and we thought that
was the most cost-effective way for us to do
it. So the price well exceeded over $22,000
for which that we've already tried to
provide for corrections in order to respond
to the complaint.
Q. Do you have any reasonable estimate as to
the value of the in-kind labor that was used
or not?
A. I haven't figured that out.
Q. And can you tell me whether you noticed any
difference or what difference, if any, you
noticed after all these improvements were
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made and all these measures were taken.
A. There were noticeable differences. We could
tell in some particular units, even at the
source of the unit, that there was less
sound being emanated from the unit itself.
Q. So you noted what you were doing seemed to
be --
A. What we were doing did, in fact, work. It
did, in fact, reduce the amount of decibels
that were being emanated from the unit prior
to our work in response to the complaint.
Q. I think you can probably resume your chair
now if you'd like to. On your redirect
examination when Mrs. Furlan called you as a
witness you discussed or were asked of your
comparison of the sound between what you
heard at the Furlan residence to your
neighbor's window air conditioner. Do you
remember that question?
A. Yes.
Q. And you said they were comparable and she
was getting into --
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MRS. FURLAN: No, you can't do that.
MS. FRANK: Yes, he can.
MRS. FURLAN: You can do that? I'm
sorry.
Q. Was comparable either as to -- she asked you
whether it was the same type of sound. Do
you remember that question?
A. Yes.
Q. How about the volume of the sound.
A. Considering the fact that that particular
air conditioner that I'm speaking of was
within a short distance of our home, you
could say that that could be comparable to a
larger unit that may be creating more noise
which was a greater distance away. So when
you factor in the dissipating aspect of
distance away from the unit, you can
therefore say that there may be some type of
apparent equivalency in terms of sound.
Q. What I'm talking about for you to compare is
when you sit in your own house 25 feet away
from the window unit and compare that to
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when you sit or you stand in the Furlans'
driveway 800 feet away from the School's
unit and compare the volume of those two
units, are they comparable in terms of
volume and sound?
A. I would say that that could be true.
MR. DEVINE: I have no further
questions.
MS. FRANK: Mrs. Furlan, you may ask
this witness questions.
CROSS EXAMINATION
BY MRS. FURLAN:
Q. Mr. Jensen, in that letter you referred to
earlier, 1987 --
MR. DEVINE: Is that an exhibit? I'm
just asking -- I'm not trying to harass
you. I'm asking for purposes of looking at
it.
MRS. FURLAN: I understand.
MS. FRANK: Plaintiff's Exhibit 1, I
believe. Are you talking about the August
13th, 1987 letter?
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MRS. FURLAN: Yes, yes.
Paragraph 4, it says the last
words are numerous -- "Our department
employees observed the sound at our
adjoining property line on numerous
occasions and times and concluded that the
sound was not objectionable."
This was prior to our calling in
Mr. Zak or his office to come and do the
reading. You are stating in '87 that there
is no problems with the noise emitted from
the School of Medicine and it wasn't
until --
MS. FRANK: Mrs. Furlan, again, you're
testifying. Do you have any questions --
MRS. FURLAN: That's how I interpret
what he said.
MS. FRANK: But your interpretation is
your testimony. Your job now is to ask this
witness any questions that you have that he
can answer.
MRS. FURLAN: Okay.
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221
Was this -- are you saying in this
letter that you felt this facility to be in
compliance?
MR. DEVINE: Your Honor, I'm going to
object. The letter is in evidence. It
speaks for itself. His interpretation now
of the letter he wrote nine years ago I
don't think has any bearing or relevance to
this.
MRS. FURLAN: Well, it should. I would
hope we could all stand up for something we
put in writing.
MS. FRANK: Mrs. Furlan, the letter is
in evidence and it speaks for itself. There
is a rule in law, it's called the best
evidence rule, and that is if you have the
document, the document speaks for itself and
that no further explanation is needed. So
based on that the objection is sustained and
the letter is in evidence. The Board can
read it and see what it was that was said at
that time.
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MRS. FURLAN: Can I tell you why I want
to make reference to this?
MS. FRANK: Certainly. I mean, tell me
what you're trying to get at.
MRS. FURLAN: Okay. What I'm reading
here, what we have read here, is that there
was no problem. It wasn't until we called
the EPA to come in and get a reading that
they indeed were in -- they were not in
compliance. Nothing was done until --
MS. FRANK: Okay. That's information
that you can give as part of your rebuttal
testimony.
MRS. FURLAN: Thank you.
This book that you've referred to,
Mr. Jensen, is that your book?
A. This was purchased by the University of
Illinois. It was purchased by University of
Illinois funds.
Q. So it's owned by the School?
A. So that it actually is property of the
University of Illinois. It was purchased at
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my direction as a resource book to have in
my own office.
Q. I'd question your familiarity with the book
and what's in it because you did not know
the name of it when it was questioned. Do
you refer to that book with any --
MR. DEVINE: Is she arguing with -- I'd
object to --
MRS. FURLAN: I don't mean to argue.
MS. FRANK: Mrs. Furlan, you were
getting to a question, I believe, about his
familiarity. Try to keep your sort of
editorializing out of it and just ask him
whatever question it is that you wish to ask
him about.
Q. Why did you request that book be purchased?
A. I have seen this book in architect's offices
before. The work that I do pertains to
facilities. The work that architects do are
basically that of design facilities. In
contrast to the type of work that I do we
need to have facilities that are
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224
appropriately designed in order to provide
facilities for the University, and it was a
resource that I felt would be valuable for
me in terms of understanding facilities
better.
Q. Design for what? Placement of -- I'm sorry,
but I don't understand what the -- you mean
this was purchased for the design
information. Design of what?
A. I said that typically a book like this is
used as a reference material. Architects
used this as a reference material.
Q. For what purpose?
A. The type of business that an architectural
firm would do. Part of what an
architectural firm would do would be design
of facility.
Q. Would this be design for appearance,
aesthetic or design for efficiency? What
would the design be for?
A. Would you like to take a look at the context
of the book?
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Q. I'm asking you.
A. All aspects in terms of an architectural
design have to be present in the facility,
whether it would include for effective sound
control, whether it would provide for what
suggested placement of equipment may be in
the building, the type of heating and
ventilating system that you could possibly
use, the type of construction that you may
possibly want to use, your electrical
systems, your mechanical systems.
Q. So it would be all conclusive?
A. So that this is a reference material that
provides for background information for all
of those particular facets that an architect
may use in the design of a facility.
Q. What is in that book that would help you in
the placement of noise generating
equipment -- that's backwards, in the
placement of, for lack of a better term,
noise generating equipment. What is in that
book that would give suggestions of where to
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place equipment as to best minimize noise?
A. It may be in here. I'm not certain. I
can't tell you exactly where it is at that
point.
Q. Was this book then used by you in --
MS. FRANK: Maybe I can help. I don't
believe that the book is being offered as a
reference book to how the building or the
facility was built or how you designed any
aspect of the building.
MR. DEVINE: That's correct.
THE WITNESS: That's correct.
MS. FRANK: You are offering it for the
purpose of this one page as to perception of
decibel levels.
MR. DEVINE: That's right, Your Honor.
MS. FRANK: So they are not trying to
show that this book tells them exactly how
to build the building or where to place
things. What they are only offering this
into evidence for is for the page that they
gave you. So if you have questions about
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that page, I think they're appropriate.
You've asked enough questions that the Board
will be able to question the weight of the
book as to whether they believe that it is a
credible or noncredible book.
MRS. FURLAN: Thank you.
MS. FRANK: But if you have questions
about the specific page, you can go ahead
and do that.
MRS. FURLAN: No, I don't.
MS. FRANK: Okay.
MRS. FURLAN: Thank you.
Prior to our -- with our initial
request for relief from this sound, did you
feel that the facility was in compliance?
MR. DEVINE: Your Honor, I object. It
sounds as though the question is directed to
numeric compliance. That's not an issue in
this case. It's undisputed that we are in
numeric compliance and received a directed
verdict on that issue.
MS. FRANK: To the extent that you are
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asking about numerical compliance, the Board
has already ruled that the School is in
numerical compliance, so you need to be a
little bit more clear what you're trying to
get at because numerical compliance is no
longer relevant.
MRS. FURLAN: If numerical compliance
is no longer an issue, then why was all this
talk about what was done to bring it to
compliance?
MS. FRANK: Right, so what -- tell me
what the question is that you're wishing --
I don't understand what you're trying to get
at.
MRS. FURLAN: Nothing was done in
response to our first request until -- we
just had to go farther and farther and get
more people, until then when the EPA said,
yes, you are in compliance. Then they said,
okay, we'll fix it. Now they're saying --
MS. FRANK: Now, that is information
that you can testify to when you testify,
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and I think we've already gone over that,
that that's your testimony.
MRS. FURLAN: All right.
MS. FRANK: If you have a question
about when they began to make corrections to
their equipment, you may ask that if that's
what you're trying to get at is the date
that they began to do that.
Q. (By Mrs. Furlan) Would you tell us the date
you began making corrections.
And thank you very much.
A. I believe that we started to make
corrections after our meeting that we had
with you for which that Dr. Salafsky
instructed me to see what needed to be
done. Those corrections were done in 1993.
MRS. FURLAN: All right, thank you,
that's all.
MS. FRANK: Mr. Devine?
MR. DEVINE: Very briefly.
REDIRECT EXAMINATION
BY MR. DEVINE:
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Q. Did the purchase of this book, the page of
which has been marked as an exhibit, title
of which is Architectural Graphic Standards,
have any connection whatsoever to this
litigation?
A. None.
Q. You purchased it for reasons other than this
litigation.
A. Yes.
MR. DEVINE: No further questions.
MS. FRANK: Okay. Before we continue,
I think I may have mismarked exhibits in the
sense that I don't believe we have an
existing Exhibit 3 and I will just -- the
record should reflect that there is no
Exhibit 3 rather than remark everything. I
just want to make sure that that is accurate
before we move forward.
MR. DEVINE: I believe that to be true,
Your Honor. As I recollect the CV was
No. 1, the page from the book was No. 2, and
then I think the charts were 4 and 5 and
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so --
MS. FRANK: Yes, okay.
MR. DEVINE: Thanks for catching that.
I missed it.
MS. FRANK: So the material will still
be 6 and 7. We will just show that there is
no Exhibit 3.
Do you have anything further for
this witness?
MR. DEVINE: No, I don't, Your Honor.
MS. FRANK: Mrs. Furlan?
MRS. FURLAN: No, thank you.
MS. FRANK: Do you want to -- I don't
believe you have moved 6 and 7 into
evidence.
MR. DEVINE: I would ask that all of
our exhibits, and I know we've asked for
some, all of them be admitted into evidence.
MS. FRANK: Is there any objection to
any of their exhibits?
MRS. FURLAN: None.
MS. FRANK: Then Exhibits 1 through 7,
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excluding No. 3 which doesn't exist, are
admitted into evidence.
At this time also, Mrs. Furlan, I
don't believe that you have moved for
Complainant's Exhibit 3 which is Mr. Zak's
dated document to be admitted into
evidence. Do you so wish that that be
admitted?
MRS. FURLAN: Yes.
MS. FRANK: Is there any objection?
MR. DEVINE: I'm sorry?
MS. FRANK: That's okay. Mr. Zak's
data from his readings being admitted into
evidence.
MR. DEVINE: Oh, the report itself?
MS. FRANK: The report and the two-page
letter.
MR. DEVINE: No objection, Your Honor.
I would like to reopen Mr. Jensen very
briefly on one issue that I forgot to ask
him about, if that's okay.
MS. FRANK: Complainant's Exhibit 3 is
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in evidence, so at this point all exhibits
which have been offered are now in evidence
and you may resume with Mr. Jensen.
Q. (By Mr. Devine) Mr. Jensen, where do you
live in relationship to the School?
A. I live a mile away on the other side of the
river.
Q. And how old are you?
A. 44.
Q. How long have you lived in that general
area?
A. 44 years.
Q. You were born near there, you were raised
near there and you still live there; is that
correct?
A. Yes.
Q. I want you to take a look at one of these.
Does one of these exhibits depict Spring
Creek Road? No. 4? No. 5, I'm sorry. That
shows Spring Creek Road; is that correct?
A. That is correct.
Q. In relationship to both the School and the
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Furlans' residence here on Hampden; is that
correct?
A. That's correct.
Q. And this road is High Crest; is that
correct?
A. Yes.
MS. FRANK: Spring Creek is at the top
left-hand corner?
MR. DEVINE: That's correct.
I would like for you, if you
could, to describe the general area
including traffic particularly on Spring
Creek Road and its impact on what you can
hear in the area of the School and in the
Furlans' residence on Hampden Court.
MRS. FURLAN: Is this something I can
object to?
MS. FRANK: You can object. Why don't
you tell me what your reasons are for
objecting.
MRS. FURLAN: I don't know what that
has to do with what we're discussing here.
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MS. FRANK: Mr. Devine?
MR. DEVINE: Well, Your Honor, one of
the issues here is the increase, and I think
it's a major issue, above the ambient, and I
think, you know, we've heard, well, we don't
mind crickets, we don't mind gurgling water,
those are pleasant noises. That's very
subjective.
I don't think anybody's going to
say that traffic noise from Spring Creek
Road is -- maybe they don't object to that
either, but I think at least it's not a very
strong position.
MS. FRANK: I'll allow your witness to
discuss his impressions of the traffic on
the road noting that the Furlans have also
discussed their impression and the cases on
their impressions of the noise, not your
witness', but you may go forward and ask
him.
A. Spring Creek Road is a very heavily
trafficked road. Approximately several
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years ago when I asked the city for
information, we get in the neighborhood on
Spring Creek, around 44,000 cars per day on
that particular intersection.
Q. Spring Creek?
A. Well, Spring Creek and Parkview and then of
course you're dealing with basically Spring
Creek and North Second Street in this
general area. We're dealing with a traffic
flow, but that was several years ago.
MS. FRANK: Where is this information
coming from? You said it was a city study?
THE WITNESS: I asked for the
information from the City of Rockford
Traffic Bureau for which that you can call
and ask for information, and we were doing
that based upon we wanted to know what the
traffic flow was in proximity. We did not
call for this particular case.
MS. FRANK: Okay.
A. So there is a substantial amount of traffic
that is generated at this location. When I
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was on the Furlans' property we can hear the
noise and the traffic and the cars and all
those other type of things that may be
associated with vehicular traffic on their
property. And at times what this
particularly would do is that this would
also change the ambient, and one of the
reasons that the ambient may be going up is
because of the increase in traffic flow, and
as you almost have to perform the test
almost near 2 o'clock or 3 o'clock in the
morning.
But once you start getting during
the hours of operation of being heavily
trafficked, probably from 5 to 1 o'clock in
the morning, you do hear that particular
noise on their property from the Spring
Creek.
Q. When you said 5 'til 1, 5 a.m., 5 p.m.?
A. I'm guessing, I'm just saying, but 5 a.m. to
1 p.m. I would think would be the heaviest
amount of traffic within this particular
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area, and that does have a factor on the
ambient noise level that is characteristic
on the Furlan property.
Q. How about the p.m. hours? You said 5 a.m.
to 1 in the afternoon. That's about a
seven-hour or eight-hour period of time. Is
there traffic --
A. No, 5 a.m. to 1 p.m. Did I say -- yeah,
that's 1 in the afternoon. Did you mean --
excuse me, excuse me, a.m. I'm sorry.
Q. I knew that's what you meant to say.
MS. FRANK: Do we mean 5 a.m. to 1 a.m.
or 5 p.m. to 1 a.m.?
THE WITNESS: I'm saying if you start
in the morning at 5 a.m. and you run all the
way past through the daytime hours into the
evening hours, that the traffic will
probably subside maybe around 1 a.m. in the
morning. So this is a very heavily
trafficked area, and in order to get
accurate testing on their particular
property you will have an increase in
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ambient noise on their property because of
the traffic that is located and you can hear
on Spring Creek Road.
MR. DEVINE: Thank you. That's all I
have.
MS. FRANK: Mrs. Furlan, did you have
additional questions for this witness?
MRS. FURLAN: No.
MS. FRANK: Okay, thank you. Do you
have any further witnesses?
MR. DEVINE: No, and it's my
understanding our exhibits have all been
admitted, Your Honor, and so we would
therefore rest our case.
MS. FRANK: Mrs. Furlan, we've
discussed a couple of times that you may
call rebuttal witnesses. From what has been
said here I believe you want to recall
yourself.
MRS. FURLAN: Yes.
MS. FRANK: I guess I would ask the
School whether or not they have an objection
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again to a sort of narrative fashion or you
would wish that her husband ask questions.
MR. DEVINE: I guess I would ask if
maybe she intends to call Mr. Zak again that
she do so now that maybe he can get going
back. She wasn't sure before Mr. Jensen
testified.
MRS. FURLAN: I don't think so. Thank
you. Thank you, Mr. Zak.
MS. FRANK: Mr. Zak, you're free to
leave if you so choose. Mrs. Furlan, I
remind you you are still under oath and you
may testify to things then that are within
your knowledge.
MRS. FURLAN: Now this is my closing?
MS. FRANK: No, this is a continuation
of your testimony like you did this
morning. We could set it up so that your
husband asks you questions and you answer
them but we're going to allow you to just do
it in a narrative form.
MRS. FURLAN: Okay. The reference
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made -- see, I guess I'm on edge now on how
to do this because I don't want to interrupt
this more than I apparently already have.
Reference made was to furniture on
our deck giving the position that if you
don't use it, why is it furnished. It's
there to provide the feel that so someone --
anyone coming or going knows that someone
lives here. It's not -- it does not
introduce possible invasion in our home.
There was talk about the
neighbor's air conditioner. This is
limited. It's soft. What we're talking
about is a continuous interference.
Mr. Zak made the statement that
when he was in our home it did not bother
him. There's a vast difference between
spending an hour in a situation with limited
conversation as opposed to living
somewhere.
Mr. Jensen made reference to you
cannot see our home. Sound does not have to
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see where it's going. There was mention
made of a grove of trees. Now I could --
MS. FRANK: We're looking at I guess
Respondent's Exhibit 5, which is the aerial
map, shows the grove.
MRS. FURLAN: And you can see that it
is -- I would not describe this as a grove.
It is some scattered trees. You can see the
rubble there where they knocked down trees.
Behind this section is all empty.
MS. FRANK: You need to tell us what
photograph you're viewing.
MRS. FURLAN: Photo 3.
MS. FRANK: And for the record, this
section in the center of the photograph
where there are some branches on the ground.
MRS. FURLAN: Yes, considerable. This
is vacant up here there are no trees.
MS. FRANK: Up here doesn't work.
MRS. FURLAN: I'm sorry. To the far
right, to the center and to the left there
are minimal --
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MS. FRANK: Vacant of trees.
MRS. FURLAN: Vacant of trees, yeah. I
would question that trees are a sound
barrier. Now I should have called him for
this, huh?
MS. FRANK: Mr. Zak is still here, so
if you choose to recall him you haven't lost
anything. He's not on his way back to
Springfield.
MRS. FURLAN: When I asked earlier
about when they came in compliance, does
this go now or with the closing?
MS. FRANK: I can't tell until you
start to --
MRS. FURLAN: That nothing was done
until we called in the EPA.
MS. FRANK: You may testify to that.
MRS. FURLAN: Now?
MS. FRANK: Yes.
MRS. FURLAN: When you initially
contacted the School of Medicine, that's
back to that letter where they said that
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there was no problem, and it wasn't until we
acted further on it and had to get the State
involved that a reading was taken and they
were indeed in compliance. So things were
not done --
MS. FRANK: Do you mean in compliance
or out of compliance?
MR. DEVINE: No, she meant in
compliance. There was no readings ever out
of compliance. And Mrs. Furlan, maybe I
shouldn't speak for you, I'm sorry, but it's
my understanding that that's true.
MRS. FURLAN: It is -- I deeply regret
that this thing had to go this far. If the
right thing were done --
MS. FRANK: That's for closing.
MRS. FURLAN: That's for closing, okay.
MS. FRANK: What this is really for is
your chance to say evidence --
MRS. FURLAN: Then I'll just call
Mr. Zak, please.
MS. FRANK: Mr. Zak, I remind you
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you're still under oath.
REDIRECT EXAMINATION
BY MRS. FURLAN:
Q. Mr. Zak, would you consider trees to be a
sound barrier? In specific, the number of
trees and the type of trees that Mr. Devine
makes reference to?
A. Well, to be specific to this particular case
having observed the area several times, the
trees that are present would not be -- would
not have a significant effect on sound
transmission.
Q. Okay. When you first took a reading at the
School, were they in compliance?
A. No. We had --
MR. DEVINE: I'm going to object simply
because compliance isn't an issue here so I
don't think it's --
MS. FRANK: Your objection is
sustained. The issue of numerical
compliance is over.
MRS. FURLAN: Okay.
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246
MR. DEVINE: I would ask that his
answer be stricken.
MS. FRANK: It is so stricken.
MRS. FURLAN: But that can go in my
closing?
MS. FRANK: No. The issue of numerical
compliance is no longer an issue. The Board
has ruled that currently the School is in
numerical compliance.
MRS. FURLAN: Then I'm back to my
question from before. Then why did he show
everything that was done in order to come
into compliance? If compliance isn't the
issue --
MS. FRANK: Well, the statute allows
for information to come in which goes to
whether or not the party has tried to
alleviate the noise.
MRS. FURLAN: What they have done is
done what the law says they must do.
MS. FRANK: Okay. You can put that
into your closing. You're welcome to state
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that if you want. But whether or not they
were out of numerical compliance in the past
is not really relevant because the Board has
ruled that they are currently in numerical
compliance.
MRS. FURLAN: Yeah, and I agree with
that. That's why I didn't know why all this
was.
Another question, Mr. Zak, it's
been suggested that you cannot see our
house. Can you describe how sound travels
in relation to vision or however best you
want to put it. Is there any correlation
between hearing and seeing?
A. Yes and no. I need to explain that in a
little bit of detail. If you have a solid
barrier such that -- by solid barrier, I'll
give an example of a solid barrier. Let's
say we had a brick wall such that we have a
noise source on one side and a potential
receiver on the other. If the receiver
cannot see the noise source but can only see
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the brick wall, the brick wall is going to
provide approximately a ten decibel
reduction in sound, and that's assuming the
wall is just a little bit higher -- just
high enough to break what we call line of
sight. In other words, observer looking at
the noise source. That's one example.
Another example would be
vegetation. If you've got a hedge or even
trees but basically just enough to provide a
visual barrier during the growing months,
that would in most cases not have a
significant effect on the sound levels
measured. In order to have a significant
effect, tests out in California indicated
that the thickness of the tree growth -- by
the thickness of the tree growth, I mean the
depth needed to penetrate all the trees --
would be exceeding 100 to 200 feet would be
needed in order to have a measurable impact
on the -- on sound reduction.
MRS. FURLAN: All right, thank you,
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249
Mr. Zak.
MS. FRANK: Is there cross at this
time?
MR. DEVINE: No, thank you, Your Honor.
MS. FRANK: Thank you. Mrs. Furlan,
then do you have any other witnesses you
wish to call?
MRS. FURLAN: No.
MS. FRANK: Mr. Devine, do you have any
rebuttal.
MR. DEVINE: No, thank you, Your Honor.
MS. FRANK: Mrs. Furlan, you may begin
your closing statement.
MRS. FURLAN: Tell me where this goes.
I'm sorry. Mr. Jensen said about the
traffic noise. I disagree with his
opinion. He gave his opinion. He was
entitled to that.
MS. FRANK: You I believe already
testified as to what your opinion about the
traffic noise was earlier today. You were
asked a direct question from Mr. Devine.
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MRS. FURLAN: And that covers it.
MS. FRANK: And it was already in.
MR. DEVINE: Your Honor, could I be
allowed to confer with Mrs. Furlan for just
a minute? I'm not completely sure we need
oral arguments since we're submitting
posthearing briefs. I want to discuss that
with her off the record.
MS. FRANK: That's fine. We can go off
the record.
(A discussion was held off the
record.)
MS. FRANK: Let's go back on the
record. The parties have agreed to waive
their oral closing in lieu of the fact that
they will be submitting written
briefs/closings on or before September 3rd,
1996. Also, I will state for the record
that all of the exhibits have been entered
into evidence.
As required by the rules I have to
make a credibility statement of witnesses.
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I found all of the witnesses credible, so
the weight of their testimony will be up to
the Board, and I don't believe that we have
anything further for the hearing unless
either side has any more questions or
information at this time.
MR. DEVINE: No, Your Honor.
MRS. FURLAN: Nothing.
MS. FRANK: Then I remind you again to
place your written closing briefs in the
mail by September 3rd to each other, to me
and the correct number of copies to the
Board.
MRS. FURLAN: Okay.
MS. FRANK: Thank you. The hearing is
adjourned.
(The hearing was concluded at 2:58
p.m.)
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BEFORE THE ILLINOIS
POLLUTION CONTROL BOARD
DOROTHY FURLAN and )
MICHAEL FURLAN, )
)
Complainants, ) PCB NO. 93-15
)
v. )
)
UNIVERSITY OF ILLINOIS )
SCHOOL OF MEDICINE, )
)
Defendant. )
I, Carrie L. Vaske, hereby certify
that I am a Certified Shorthand Reporter of
the State of Illinois; that I am the one who
by order and at the direction of the Hearing
Officer, Deborah Frank, reported in
shorthand the proceedings had or required to
be kept in the above-entitled case; and that
the above and foregoing is a full, true and
complete transcript of my said shorthand
notes so taken.
Dated at Ashton, Illinois, this
7th day of August, 1996.
Carrie L. Vaske
Registered Professional Reporter
Certified Shorthand Reporter
Illinois License No. 084-003845
8991 South Prairie Road
Ashton, Illinois 61006
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