272
    1 BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
    2
    3 LAWRENCE C. SWEDA, )
    )
    4 Complainant, )
    )
    5 vs ) PCB 99-38
    ) (Enforcement Noise, Citizens)
    6 OUTBOARD MARINE )
    CORPORATION and the )
    7 CITY OF WAUKEGAN, )
    )
    8 Respondents. ) VOLUME II
    9
    10
    11 The following is the continued transcript of a
    12 hearing held in the above-entitled matter, taken
    13 stenographically by GEANNA M. IAQUINTA, CSR, a
    14 notary public within and for the County of Cook and
    15 State of Illinois, before JOHN KNITTLE, Hearing
    16 Officer, at 18 North County Street, Room 301,
    17 Waukegan, Illinois, on the 20th day of April, 1999,
    18 A.D., scheduled to commence at 9:00 o'clock a.m.,
    19 commencing at 9:20 a.m.
    20
    21
    22
    23
    24
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    1 A P P E A R A N C E S:
    2
    HEARING TAKEN BEFORE:
    3
    ILLINOIS POLLUTION CONTROL BOARD,
    4 100 West Randolph Street
    Suite 11-500
    5 Chicago, Illinois 60601
    (312) 814-6923
    6 BY: MR. JOHN KNITTLE
    7
    LAWRENCE C. SWEDA,
    8 923 North County Street
    Waukegan, Illinois 60085
    9
    Appeared on behalf of the Complainant,
    10
    11 SEYFARTH, SHAW, FAIRWEATHER & GERALDSON,
    55 East Monroe Street
    12 Chicago, Illinois 60603
    (312) 346-8000
    13 BY: MS. SUSANNAH A. SMETANA
    14 Appeared on behalf of the Respondent,
    Outbaord Marine Corporation,
    15
    16 DIVER, GRACH, QUADE & MASSINI,
    111 North County Street
    17 Waukegan, Illinois 60085
    (847) 662-8611
    18 BY: MS. HEIDI J. AAVANG
    19 Appeared on behalf of the Respondent,
    City of Waukegan.
    20
    21
    22 ALSO PRESENT:
    23 Mr. Joseph S. Moran, Outboard
    Marine Corporation
    24
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    1 I N D E X
    THE WITNESSES:
    2
    PAGES:
    3
    JOHN BATTISFORE
    4
    Direct Examination by Ms. Smetana.......... 277-296
    5 Direct Examination by Ms. Aavang........... 296-296
    Cross-Examination by Mr. Sweda............. 297-300
    6 Redirect Examination by Ms. Smetana........ 300-300
    Recross-Examination by Mr. Sweda........... 301-301
    7
    THERESA FISEL
    8
    Direct Examination by Ms. Smetana.......... 302-316
    9 Cross-Examination by Mr. Sweda............. 316-317
    10 GREGORY ZACK
    11 Direct Examination by Mr. Sweda............ 318-355
    Cross-Examination by Ms. Smetana........... 357-366
    12 Cross-Examination by Ms. Aavang............ 366-368
    13 LISA BONGIOVANNI
    14 Direct Examination by Ms. Smetana.......... 369-398
    Cross-Examination by Mr. Sweda............. 398-398
    15
    DANIEL HIRSCH
    16
    Direct Examination by Ms. Smetana.......... 399-420
    17 Cross-Examination by Mr. Sweda............. 420-421
    18 GERALD LARSON
    19 Direct Examination by Ms. Smetana.......... 422-434
    Cross-Examination by Mr. Sweda............. 434-434
    20
    WILLIAM NOFF
    21
    Direct Examination by Ms. Smetana.......... 435-447
    22
    DANIEL CHAMERNIK
    23
    Direct Examination by Ms. Aavang........... 448-461
    24
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    1 I N D E X (Cont'd)
    THE WITNESSES:
    2
    PAGES:
    3
    BRIAN HOMANS
    4
    Direct Examination by Ms. Smetana.......... 462-512
    5 Cross-Examination by Mr. Sweda............. 512-517
    Redirect Examination by Ms. Smetana........ 518-519
    6 Recross-Examination by Mr. Sweda........... 519-520
    Redirect Examination by Ms. Smetana........ 520-521
    7
    MARK PFISTER
    8
    Direct Examination by Ms. Aavang........... 523-536
    9 Cross-Examination by Mr. Sweda............. 536-537
    Redirect examination by Ms. Aavang......... 537-538
    10 Recross-Examination by Mr. Sweda........... 538-538
    11 JEFFREY MUSINSKI
    12 Direct Examination by Ms. Aavang........... 539-554
    Cross-Examination by Mr. Sweda............. 554-555
    13
    CRAIG LINN
    14
    Direct Examination by Ms. Aavang........... 556-562
    15 Cross-Examination by Mr. Sweda............. 562-563
    16 CLOSING STATEMENT BY MR. SWEDA............. 565-567
    CLOSING STATEMENT BY MS. SMETANA........... 567-572
    17 CLOSING STATEMENT BY MS. AAVANG............ 572-574
    CLOSING BY THE HEARING OFFICER............. 574-580
    18
    E X H I B I T S
    19 Marked for
    Identification
    20 OMC Exhibit Nos. 4 and 5........... 286
    Complainant's Exhibit No. 8........ 320
    21 OMC Exhibit No. 6.................. 382
    OMC Exhibit No. 7.................. 384
    22 OMC Exhibit No. 8.................. 394
    OMC Exhibit No. 9.................. 486
    23 OMC Exhibit No. 10................. 499
    City of Waukegan Exhibit No. 1..... 526
    24 City of Waukegan Exhibit No. 2..... 533
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    1 HEARING OFFICER KNITTLE: This is the
    2 second day of hearings for PCB No. 99-38, Lawrence
    3 Sweda vs. Outboard Marine Corporation and the City
    4 of Waukegan. Today's date is April 20th, 1999, and
    5 it is 9:20 a.m. Mr. Sweda is present again as are
    6 Heidi Aavang for the City of Waukegan, Susannah
    7 Smetana for OMC as well as Joseph Moran --
    8 MR. MORAN: Correct.
    9 HEARING OFFICER KNITTLE: -- for OMC.
    10 Tom Lupo is not attending today. So, Ms. Smetana,
    11 are you going to be doing a direct examination?
    12 MS. SMETANA: Yes.
    13 HEARING OFFICER KNITTLE: Okay. Your
    14 witness.
    15 MS. SMETANA: We're going to call as our
    16 first witness today John Battisfore.
    17 HEARING OFFICER KNITTLE: Sir, if you
    18 could have a seat right there and the court
    19 reporter will swear you in.
    20 MS. SMETANA: Do you also have exhibits
    21 from yesterday?
    22 HEARING OFFICER KNITTLE: I do have all
    23 the exhibits from yesterday except the two tapes
    24 that were not admitted. I didn't bring those.
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    1 They're in my trunk, though, if we need them. Do
    2 you need one in particular? Here. I'll give you
    3 all three of yours.
    4 MS. SMETANA: No. I just need Exhibit 2.
    5 HEARING OFFICER KNITTLE: Those are the
    6 OMC exhibits.
    7 (Witness sworn.)
    8 WHEREUPON:
    9 J O H N B A T T I S F O R E,
    10 called as a witness herein, having been first
    11 duly sworn, deposeth and saith as follows:
    12 D I R E C T E X A M I N A T I O N
    13 by Ms. Smetana
    14 Q. Please state your full name for the
    15 record.
    16 A. John Charles Battisfore.
    17 Q. And what's your education?
    18 A. I have a bachelor's degree in computer
    19 science and an MBA degree.
    20 Q. When did you get those degrees?
    21 A. I got my bachelor's degree in 1975, and I
    22 got my master's degree in 1989.
    23 Q. And where are you presently employed?
    24 A. I'm employed in the information technology
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    1 center at Outboard Marine.
    2 Q. And how long have you been with Outboard
    3 Marine?
    4 A. I've been there 24 years.
    5 Q. Have you always been in the information
    6 technology department?
    7 A. Yes.
    8 Q. And what is the information technology
    9 department?
    10 A. Well, we deal with information processing
    11 in terms of computer systems, telecommunications,
    12 and PCs, and networks.
    13 Q. How many employees work in the IT
    14 department?
    15 A. We have 47 employees right now, plus
    16 contractors.
    17 Q. And what is your job title?
    18 A. Project leader.
    19 Q. And for how long have you been project
    20 leader?
    21 A. Since about 1990.
    22 Q. As project leader, what are your job
    23 responsibilities?
    24 A. Given a specific initiative, I make plans
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    1 for the project, I monitor progress, I obtain
    2 resources as needed, and that kind of thing.
    3 Q. And where is the IT department located at
    4 OMC?
    5 A. It's located --
    6 Q. On what portion of the facility?
    7 A. It's located directly across from the
    8 beach and it is east of that big empty field and
    9 south of another part of the big empty field.
    10 Q. If I showed you a map of the facility,
    11 would you able to identify it?
    12 A. Yes.
    13 MS. SMETANA: I'll approach the witness.
    14 I'm going to show the witness what's been marked
    15 OMC Exhibit No. 2.
    16 BY MS. SMETANA:
    17 Q. If you could identify on this map the IT
    18 building and place your initials next to it.
    19 A. It's kind of hard. Right here. Sorry.
    20 Q. And then -- do all employees in the IT
    21 building -- IT department work in this building?
    22 A. All, but one.
    23 Q. Where is this building in relation to the
    24 rest of the facility?
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    1 A. There is a plant to the north of us and
    2 there is what was called the environmental
    3 building, which is directly to the south of us, and
    4 then there's another plant to the south of that.
    5 Q. And where is the IT building in relation
    6 to the vacant land you refer to?
    7 A. It is to the east of one part of the field
    8 and to the south of another part of the field.
    9 Q. Is there a fence between the field and the
    10 IT building?
    11 A. Yes.
    12 Q. What kind of fence is that?
    13 A. Cyclone.
    14 Q. What is a cyclone fence?
    15 A. The wire.
    16 Q. How do you get to work in the morning?
    17 A. I drive a car.
    18 Q. About what time do you arrive at work?
    19 A. I arrive usually between 7:00 o'clock and
    20 7:30.
    21 Q. And what time do you usually leave?
    22 A. I usually leave between 4:30 and 5:30.
    23 Q. And where do you park your car?
    24 A. I park it in the lot.
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    1 Q. What lot?
    2 A. The parking lot that's directly north of
    3 our building.
    4 Q. Do all IT employees park their car at this
    5 lot?
    6 A. Yes. As far as I know, yes.
    7 Q. Does the lot have a name?
    8 A. No.
    9 Q. Do you refer to it as the IT lot?
    10 A. Yeah, IT parking lot.
    11 Q. And which direction in relation to your
    12 building is the IT lot?
    13 A. Directionally, north.
    14 Q. And where is the IT lot in relation to the
    15 vacant field?
    16 A. We are -- again, the field is to the
    17 north. One part is to the north of our building
    18 and one part is directly east -- pardon me,
    19 directly west of our building.
    20 MS. SMETANA: I'm going to show the
    21 witness again Exhibit 2, which is the map of OMC.
    22 BY MS. SMETANA:
    23 Q. If you could take this yellow highlighter
    24 and outline the area of the IT parking lot.
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    1 A. (Witness complied.)
    2 Q. About how large is the IT parking lot?
    3 A. I don't know the specific dimensions. I'd
    4 say it's about 30 yards wide and about 60, 75 yards
    5 long.
    6 Q. And does the fence of the vacant field
    7 border the parking lot?
    8 A. Yes.
    9 Q. As a project leader, have you had any
    10 contact with the environmental department at OMC?
    11 A. Yes.
    12 Q. And what has that contact been?
    13 A. At one point in time when the problem with
    14 the sea gulls had gotten bad enough, the
    15 environmental department was going to be looking
    16 into the matter, and my boss at the time, Ed
    17 Frandel, asked me to be kind of a liaison to keep
    18 abreast of what was going on for the -- so that
    19 people in our department knew what was going on
    20 then.
    21 Q. Why was that important to have that
    22 position?
    23 A. Just important to make sure that that --
    24 that the problem was being looked into to be
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    1 addressed.
    2 Q. And did you communicate what was being
    3 done to your employees?
    4 A. Yes. Any developments that were
    5 significant, I would pass that information along.
    6 Q. And did IT employees ever come to you?
    7 A. Yes. There's been times people came to me
    8 about it.
    9 Q. When were you first aware of the sea gulls
    10 on the OMC property?
    11 A. Well, I was probably aware of it in '95
    12 and '96, but in 1997 it was quite bad. I
    13 definitely was aware of it then.
    14 Q. Prior to that time in all of your 24 years
    15 at OMC, had there been a gull population on OMC's
    16 property?
    17 A. Prior to that time, I don't recall such.
    18 Q. And you said in '96 and '97 it was bad.
    19 What do you mean by that?
    20 A. Well, in '97, the bird droppings were --
    21 there was quite a bit of bird droppings hitting our
    22 cars, et cetera.
    23 Q. What did the number of sea gulls look like
    24 to you? What did you see?
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    1 A. Well, I couldn't possibly estimate it.
    2 There was just -- you know, it looked like
    3 thousands of them.
    4 Q. And where were the birds in relation to
    5 the IT department?
    6 A. Well, they were using the field directly
    7 to the west of the IT parking lot.
    8 Q. Would they fly?
    9 A. Yes. They would also fly overhead a lot.
    10 Q. During what months of the year in
    11 the '96, '97 were the gulls present?
    12 A. They would usually come in at about -- by
    13 about the 1st of March, maybe a little bit before
    14 that.
    15 Q. And how did the problem change from '95
    16 to '97?
    17 A. Just the amount of bird droppings became
    18 significantly worse.
    19 Q. And where were these bird droppings?
    20 A. The bird droppings were on the parking lot
    21 itself, they were on our cars, and the people,
    22 including myself, have been hit by the droppings.
    23 Q. Can you describe the gulls' behavior in
    24 1997 around the IT building?
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    1 A. Well in '97, at different times of day,
    2 there would be a lot flying overhead. They would
    3 be walking around out in the field. That's the
    4 main thing and at times walking in the parking lot,
    5 especially when you first got there in the
    6 morning. There could be numbers of them walking
    7 around the parking lot.
    8 Q. And did you see that when you got to work
    9 in the morning?
    10 A. Yes.
    11 Q. And what was your own experience in 1997
    12 with respect to the sea gulls?
    13 A. Well, two things mainly. I was -- as I
    14 said, I was hit by gull droppings on my shoulder.
    15 My car was hit on just about a daily basis and
    16 sometimes very significantly.
    17 Q. When you say your car was hit, what did it
    18 look like?
    19 A. My car was -- are you referring to the
    20 color of the car?
    21 Q. No, the droppings on the car.
    22 A. Droppings on the windshield, droppings on
    23 the hood, on the trunk, on the side windows, on the
    24 bumpers.
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    1 Q. And what did you have to do as a result of
    2 the droppings?
    3 A. On a daily basis, I would have to take a
    4 jug of water, take paper towels, and try to get the
    5 bird droppings off my car.
    6 Q. Can you describe your car?
    7 A. Yes. It's a '94 bluish-green Intrepid.
    8 Q. Did you ever take a picture of your car?
    9 A. Yes, I did.
    10 Q. When did you do this?
    11 A. I took a picture of it on a Monday. It
    12 was a day when my car got hit even worse than
    13 usual.
    14 Q. And why did you take a picture?
    15 A. Because it was so unbelievably bad that
    16 particular day that I just wanted to have a record
    17 of it.
    18 Q. And do you recall when you had washed your
    19 car prior to that?
    20 A. I had washed my car the day before.
    21 (OMC Exhibit Nos. 4 and 5
    22 marked for identification,
    23 4-20-99.)
    24 MS. SMETANA: I'm going to show the
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    1 witness what's been marked OMC Exhibits 4 and 5.
    2 MR. SWEDA: I object to the exhibit. We
    3 don't know that, in fact, it is, in fact, your car
    4 and it is, in fact --
    5 MS. SMETANA: He hasn't yet identified the
    6 exhibit.
    7 HEARING OFFICER KNITTLE: I'm going to let
    8 her approach the witness and continue to lay the
    9 appropriate foundation.
    10 MS. SMETANA: I'm going to show the
    11 witness first what's been marked as OMC Exhibit 4.
    12 BY MS. SMETANA:
    13 Q. Can you identify this exhibit?
    14 A. Yes. That is my car.
    15 Q. Is this the -- again, can you describe --
    16 you just previously described what your car looked
    17 like. Can you describe, again, the color and model
    18 of your car?
    19 A. It's a 1994 Dodge Intrepid. It's dark
    20 bluish-green in color.
    21 Q. And where was this picture taken?
    22 A. In my driveway.
    23 Q. Again, again, when did you take the
    24 picture?
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    1 A. It was on a Monday after I came home from
    2 work.
    3 Q. And what does this picture depict?
    4 A. It depicts the right-hand side of my car
    5 on the side windows and also on the roof.
    6 Q. And what does it show on your car?
    7 A. Bird droppings.
    8 MS. SMETANA: I'm going to ask that this
    9 Exhibit 4 be put into evidence.
    10 HEARING OFFICER KNITTLE: Mr. Sweda?
    11 MR. SWEDA: I have no qualms that it's a
    12 picture of a car with bird droppings.
    13 HEARING OFFICER KNITTLE: It's admitted.
    14 MS. SMETANA: Now, I'm going to show the
    15 witness what's been marked Exhibit No. 5.
    16 BY MS. SMETANA:
    17 Q. Could you identify that?
    18 A. Yes. That's the roof of my car on the
    19 same date.
    20 Q. And why did you take a picture of the roof
    21 of your car?
    22 A. Because there was such an extreme amount
    23 of bird droppings on it.
    24 MS. SMETANA: I'm also going to move to
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    1 admit Exhibit No. 5 into evidence.
    2 HEARING OFFICER KNITTLE: Mr. Sweda?
    3 MR. SWEDA: I have no qualms that it's a
    4 picture of a car with bird droppings on it.
    5 MS. SMETANA: And I'm also going to ask
    6 that the witness initial each of these photographs
    7 to show that he took the pictures and they're his
    8 car.
    9 BY THE WITNESS:
    10 A. (Witness complied.)
    11 BY MS. SMETANA:
    12 Q. Thank you.
    13 HEARING OFFICER KNITTLE: Exhibit No. 5 is
    14 admitted.
    15 BY MS. SMETANA:
    16 Q. How often do you wash your car or in 1997
    17 how often did you wash your car?
    18 A. In 1997, I would probably wash it every
    19 week, but, again, on a daily basis, I would have to
    20 take the spots off, you know, wipe them off
    21 individually I guess I'd say.
    22 Q. And what did you wipe them off with?
    23 A. I used water, paper towels.
    24 Q. And at what point in the day would you
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    1 wipe off the spots?
    2 A. When I'd get home. I'd try to do it while
    3 they were still -- if there was still some wet, I
    4 guess.
    5 Q. Did you ever wipe the spots off before you
    6 got home?
    7 A. I'm sure there were occasions I did, yeah.
    8 Q. Has there been any other damage to your
    9 car?
    10 A. There is discoloration in a few different
    11 spots on my front hood, and I know of no other
    12 reason than these droppings for doing that.
    13 Q. Have you had this discoloration repaired?
    14 A. No.
    15 Q. Why not?
    16 A. Well, I haven't had it repaired for --
    17 well, my personal reason is that I don't like to
    18 get paint jobs done unless it's really absolutely
    19 necessary due to you don't always get the exact
    20 consistency of color. It's just a personal
    21 preference.
    22 Q. Is there any other reason why you have not
    23 gotten the paint redone?
    24 A. Well, there would be cost to do that
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    1 obviously.
    2 Q. And how much would it cost, do you know?
    3 A. No. I don't have a fixed cost. I don't
    4 know.
    5 Q. Have other employees -- have you noticed
    6 other employees in the IT department have similar
    7 droppings on their cars?
    8 A. Absolutely.
    9 Q. And do they all also wash their cars?
    10 A. Yes.
    11 Q. Have you seen employees wash their cars
    12 after work in the lot?
    13 A. I cannot specifically say that I have, no.
    14 Q. Have other employees mentioned to you this
    15 damage or discoloration?
    16 A. Yes.
    17 Q. About how many employees in the IT
    18 department?
    19 A. Two that I know of that specifically have
    20 told me that it's damaged their paint.
    21 Q. Have you had any other experience with the
    22 gulls?
    23 A. Personally, once the chicks hatch, you do
    24 have to drive carefully around the parking lot.
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    1 You never know if they're underneath your car. I
    2 know of other people being hit. I know of people
    3 being --
    4 Q. Hit by what?
    5 A. Droppings.
    6 Q. I'm sorry. Go ahead.
    7 A. So people hit on the head by droppings,
    8 people hit on their clothing. The birds dive-bombing
    9 people when the chicks are around.
    10 Q. And why are chicks a concern to you?
    11 A. Well, the chicks, they get stuck in the
    12 fence there when they try to crawl into the parking
    13 lot. They get hit by cars. So you've got their
    14 carcasses laying around. That's the main things.
    15 Q. Why are you concerned about their
    16 carcasses laying around?
    17 A. Well, it's not really a healthy situation
    18 I don't think to have those kind of things laying
    19 around. Also, in the parking lot the bird
    20 droppings, at one point it gets to be so bad that
    21 you can hardly walk without stepping in it.
    22 Q. Are you aware of any efforts to address
    23 this gull problem?
    24 A. Yes.
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    1 Q. Have you been involved in any of these
    2 efforts?
    3 A. Yes.
    4 Q. Are you aware of the efforts used by OMC
    5 to address the problem?
    6 A. Of the methods?
    7 Q. Yes.
    8 A. What are these methods?
    9 A. Air cannons, bird distress signals,
    10 pyrotechnics.
    11 Q. And how are you aware of these efforts?
    12 A. I'm aware of it because, as I say, I was
    13 initially brought in as a liaison to see what might
    14 be the work going on to address it, and I'm aware
    15 of them because they are in use today and have been
    16 in use.
    17 Q. Where are they in relation to the IT
    18 building?
    19 A. They are out in the field that is directly
    20 west of the IT building.
    21 Q. I said they. What is that?
    22 A. I'm sorry. The air cannons have been out
    23 in that field and pyrotechnics used out in that
    24 field.
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    1 Q. And what about the distress boxes?
    2 A. That's up on the roof of our building.
    3 Q. How far away are the cannons in relation
    4 to the IT building, approximately?
    5 A. I have not specifically looked in recent
    6 days. I hear them. I have not specifically looked
    7 for them. So I can't tell you exactly.
    8 Q. You say you hear the cannons. When do you
    9 hear the cannons?
    10 A. I hear them periodically throughout the
    11 day.
    12 Q. Have you been outside when you've heard
    13 the cannons?
    14 A. Yes.
    15 Q. Have you been outside the IT building when
    16 you've heard the cannons?
    17 A. Yes.
    18 Q. Have you ever spoken to someone outside of
    19 the IT building?
    20 A. Yes.
    21 Q. While you've heard the cannons?
    22 A. Yes.
    23 Q. Can you describe how you were speaking?
    24 A. Pretty much normal, normal tones.
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    1 Q. And you work inside the IT building?
    2 A. Yes.
    3 Q. Are you able to hear the cannons inside
    4 the building?
    5 A. Yes.
    6 Q. Has that affected your work?
    7 A. No.
    8 Q. When was the -- these efforts you
    9 discussed about to address the gull problem, when
    10 were those implemented, what year?
    11 A. They were first implemented in early March
    12 of '98 is when I believe they were first
    13 implemented.
    14 Q. And in 1998, did you notice any difference
    15 in the presence of gulls?
    16 A. Yes.
    17 Q. What did you notice?
    18 A. I noticed that they would -- they didn't
    19 have such a great presence out in the field, and it
    20 varied over time, but for the most part, it
    21 lessened.
    22 Q. What about the droppings on your car?
    23 A. It lessened the amount of droppings on my
    24 car.
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    1 MS. SMETANA: I have no further questions
    2 for the witness.
    3 HEARING OFFICER KNITTLE: Ms. Aavang, do
    4 you have any questions for this witness?
    5 MS. AAVANG: I just have one question.
    6 D I R E C T E X A M I N A T I O N
    7 by Ms. Aavang
    8 Q. Are you aware of any employees using
    9 measures to protect themselves from the bird
    10 droppings as they were walking?
    11 A. I'm aware of one thing, and that is an
    12 employee who said he's had to cover his face with a
    13 cloth because it would cause kind of an allergic
    14 reaction out there.
    15 Q. Anyone using hats or things to try and
    16 protect their heads?
    17 A. I'm not aware of it.
    18 HEARING OFFICER KNITTLE: Anything else,
    19 Ms. Aavang?
    20 MS. AAVANG: That's it.
    21 HEARING OFFICER KNITTLE: Mr. Sweda, do
    22 you have a cross-examination?
    23 MR. SWEDA: Yes, I do, a couple questions.
    24 HEARING OFFICER KNITTLE: You can
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    1 proceed.
    2 MR. SWEDA: Thank you.
    3 C R O S S - E X A M I N A T I O N
    4 by Mr. Sweda
    5 Q. Mr. Battisfore, again, how long have you
    6 worked at that particular building? I think you
    7 said like --
    8 A. Twenty-four years.
    9 Q. Twenty-four years.
    10 Have you noticed gulls in the
    11 presence of that property prior to the '90s since
    12 that -- that 20-some odds years?
    13 A. I was not really consciously aware of
    14 them.
    15 Q. You never saw gulls or --
    16 A. I can't say I never saw them. I'm saying
    17 that I was not consciously aware of them.
    18 Q. Okay. I have no problem basically with
    19 what you're saying in terms of the photographs.
    20 You're saying that people are saying -- also other
    21 people said that birds poop on their cars. I know
    22 that's not the proper name, but that's an effective
    23 way of saying it.
    24 Are there any other things that
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    1 alight or you find on your car that would not
    2 necessarily be poop, but are there other things
    3 that are on your car that you pick up
    4 inadvertently?
    5 MS. SMETANA: I'm going to object and ask
    6 that you clarify that question.
    7 BY MR. SWEDA:
    8 Q. Are there any other items that you will
    9 find on your car besides bird poop?
    10 A. Not that I'm aware of.
    11 Q. The only thing you ever find on your car
    12 is bird poop?
    13 MS. SMETANA: Can you clarify as when
    14 you're referring to?
    15 MR. SWEDA: I'm clarifying when he has --
    16 HEARING OFFICER KNITTLE: I'm going to
    17 allow the question.
    18 BY MR. SWEDA:
    19 Q. In the presence of his car when he drives
    20 in in the morning, when he drives home at night, do
    21 you -- and during the day when you get out of the
    22 car, do you ever notice that there might be other
    23 things attached to your car that you may have hit
    24 or may have run into or may have dropped from the
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    1 sky at any time in the 20-some odd years that
    2 you've worked at that facility, whether it was this
    3 car or some other car?
    4 HEARING OFFICER KNITTLE: Mr. Sweda,
    5 you've got to allow him to answer the question.
    6 MR. SWEDA: Okay. Sorry.
    7 BY THE WITNESS:
    8 A. If you mean like a splash of mud on the
    9 side of my car?
    10 BY MR. SWEDA:
    11 Q. Anything.
    12 A. That would be about the only thing I can
    13 think of.
    14 Q. Bugs?
    15 A. Well, yeah. Okay. Bugs.
    16 Q. Bugs, butterflies. Thank you.
    17 About how many days do you work at
    18 OMC?
    19 A. Five days a week.
    20 Q. Five days a week.
    21 Do you work on weekends then?
    22 A. Rarely.
    23 Q. Rarely.
    24 And your hours again were from?
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    1 A. It officially starts at 7:30, and I stay
    2 until -- I stay until 5:00 or 5:30 usually.
    3 Q. So you're not there in the evening or
    4 after 4:30, 5:00 o'clock?
    5 A. After 5:30, I'm usually not there.
    6 MR. SWEDA: Thank you. That's all the
    7 questions I have.
    8 HEARING OFFICER KNITTLE: Ms. Smetana, any
    9 redirect?
    10 MS. SMETANA: I just have one question.
    11 R E D I R E C T E X A M I N A T I O N
    12 by Ms. Smetana
    13 Q. Mr. Battisfore, can you compare the gull
    14 droppings on your car to a bug on your car?
    15 A. A bug would be very minute. These gull
    16 droppings can be pretty large.
    17 Q. When you say large, what do you mean?
    18 A. They could be sometimes up to six inches
    19 in length.
    20 Q. And how many of them?
    21 A. It can vary. On a very bad day, such as
    22 in that photograph, it could have been a couple
    23 dozen.
    24 MS. SMETANA: I have no further questions.
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    301
    1 HEARING OFFICER KNITTLE: Mr. Sweda?
    2 R E C R O S S - E X A M I N A T I O N
    3 by Mr. Sweda
    4 Q. Do you know the size of bugs? Are there
    5 small bugs and large bugs?
    6 A. There are small bugs. I don't know.
    7 Q. Do you know of any large bugs that exist
    8 in this area that you may work in or live in?
    9 A. There may be. I'm not aware. I really
    10 have never consciously thought about it.
    11 MR. SWEDA: Okay. Thank you. No other
    12 questions.
    13 HEARING OFFICER KNITTLE: Anything else?
    14 MS. SMETANA: No.
    15 HEARING OFFICER KNITTLE: You can step
    16 down, sir. I don't see Mr. Zack yet. So if you
    17 have another witness.
    18 MS. SMETANA: Okay. One minute, please.
    19 HEARING OFFICER KNITTLE: Sure. Do you
    20 need to go off the record for a second?
    21 MS. SMETANA: Yes.
    22 HEARING OFFICER KNITTLE: Let's go off.
    23 (Discussion had
    24 off the record.)
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    302
    1 HEARING OFFICER KNITTLE: Ms. Smetana?
    2 MS. SMETANA: OMC calls its next witness,
    3 Terry Fisel.
    4 HEARING OFFICER KNITTLE: Ms. -- is it
    5 Fisel?
    6 MS. SMETANA: Fisel.
    7 HEARING OFFICER KNITTLE: I'm sorry.
    8 MS. SMETANA: Fisel, with an F.
    9 HEARING OFFICER KNITTLE: Thank you. It's
    10 hard to hear up here. Have a seat, please. If you
    11 could swear her in.
    12 (Witness sworn.)
    13 WHEREUPON:
    14 T H E R E S A F I S E L,
    15 called as a witness herein, having been first
    16 duly sworn, deposeth and saith as follows:
    17 D I R E C T E X A M I N A T I O N
    18 by Ms. Smetana
    19 Q. Please state your full name for the
    20 record?
    21 A. Theresa Marie Fisel.
    22 Q. Can you spell your last name?
    23 A. F, as in Frank, i, S, as in Sam, e-l.
    24 Q. And, Ms. Fisel, where are you presently
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    1 employed?
    2 A. At the product development center at OMC
    3 corporation.
    4 Q. And when did you begin working at OMC?
    5 A. May 28th of last year.
    6 Q. What was last year?
    7 A. 1998.
    8 Q. What did you do prior to working at OMC?
    9 A. Approximately 20 years of work in the
    10 medical field.
    11 Q. And what was that work in the medical
    12 field?
    13 A. It was various between administrative,
    14 respiratory therapist, and I was also a dialysis
    15 technician.
    16 Q. And what is a respiratory therapist?
    17 A. You deal in the aid and treatment and
    18 assistance with people with respiratory diseases
    19 and respiratory malfunctions.
    20 Q. And what kind of respiratory diseases?
    21 A. Asthma, emphysema, cancer.
    22 Q. And were you a respiratory therapist?
    23 A. Yes, I was.
    24 Q. For how many years?
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    1 A. For approximately three and a half to four
    2 years.
    3 Q. When was that?
    4 A. In 1970 -- I believe 1977 to 1980,
    5 somewhere right in there.
    6 Q. At OMC, since May of '98, what has been
    7 your position?
    8 A. I'm an administrative assistant to the
    9 Ficht business unit.
    10 Q. And where is that business unit located at
    11 OMC?
    12 A. It's currently located in the engineering
    13 department, which is 300 Sea-Horse Drive.
    14 Q. And where is 300 Sea-Horse Drive in
    15 relation to the vacant field at the OMC facility?
    16 A. South.
    17 Q. If I were to show you a map, could you
    18 identify it?
    19 A. Sure.
    20 MS. SMETANA: I am going to show the
    21 witness what's been marked OMC Exhibit No. 2.
    22 BY MS. SMETANA:
    23 Q. If you can identify the building --
    24 A. It would be in this building right here
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    305
    1 (indicating).
    2 Q. And take your time.
    3 And where is that in relation to
    4 plant one?
    5 A. It's behind plant one, west of plant one.
    6 Q. Can you write the name of the building and
    7 put your initials next to it?
    8 A. (Witness complied.)
    9 Q. And is that the building in which you
    10 presently work?
    11 A. Presently, yes.
    12 Q. Are there more than one -- is there more
    13 than one entrance to that building?
    14 A. Yes.
    15 Q. On what sides are the entrance?
    16 A. Pardon me?
    17 Q. On what sides are the two entrances?
    18 A. There's one on the north side of the
    19 building and there's one on the south side of the
    20 building.
    21 Q. And where is the building in relationship
    22 to the lake?
    23 A. We're east of the lake, but west of the
    24 harbor. The other way around. We're west of the
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    1 lake and east of the harbor.
    2 Q. Presently, where in the building itself is
    3 your office?
    4 A. In the PDC area directly in the center of
    5 the second floor.
    6 Q. What entrance do you use to get to your
    7 office?
    8 A. I use the south entrance.
    9 Q. How do you get to work in the morning?
    10 A. I drive.
    11 Q. And what time do you generally arrive at
    12 work?
    13 A. Approximately, 8:00 a.m.
    14 Q. Excuse me?
    15 A. Approximately, 8:00 a.m.
    16 Q. And where do you park your car?
    17 A. South of the entrance, south of the south
    18 entrance.
    19 Q. Have you always parked your car in that
    20 lot?
    21 A. No.
    22 Q. How long have you been parking in the
    23 south -- I call it the south lot?
    24 A. Since June of '98.
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    1 Q. And where did you park prior to that?
    2 A. 200 Sea-Horse Drive, which is in front of
    3 the entire building that we're speaking of across
    4 the street from the lake itself.
    5 MS. SMETANA: I'm going to, again, show
    6 the witness Exhibit 2, which is the map.
    7 BY MS. SMETANA:
    8 Q. Can you label the parking lot where you
    9 now park, the south lot?
    10 A. Okay. (Indicating).
    11 Q. Just put maybe parking lot or something?
    12 A. (Witness complied.)
    13 Q. How do you get from the parking lot to the
    14 building?
    15 A. Walk.
    16 Q. And how far do you walk?
    17 A. It varies. Probably no more than a city
    18 block.
    19 Q. And is the parking lot covered?
    20 A. No.
    21 Q. And when you walk from the car to the
    22 building -- from your car to the building, what do
    23 you see in the morning?
    24 A. Sea gulls, bird droppings, feathers.
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    1 Q. Where do you see the sea gulls?
    2 A. Overhead and in the parking lot.
    3 (Telephone interruption.)
    4 HEARING OFFICER KNITTLE: Hold on a
    5 second, please.
    6 (Brief pause.)
    7 HEARING OFFICER KNITTLE: Just, for the
    8 record, the telephone in the courtroom rang, and we
    9 are on hold.
    10 You can proceed, Ms. Smetana.
    11 MS. SMETANA: I'm sorry. Can you again
    12 say -- can you just read back what the witness said
    13 she saw.
    14 (Record read.)
    15 BY MS. SMETANA:
    16 Q. And what else did you see in addition to
    17 the gulls overhead and in the parking lot?
    18 A. I'm sorry. I don't quite understand.
    19 Q. What else did you see besides the gulls?
    20 A. Oh. Feathers and a few dead birds.
    21 Q. Where were the feathers?
    22 A. On the parking lot, on the vehicles.
    23 Q. And where were the dead birds?
    24 A. On the parking lot.
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    1 Q. About how many dead birds did you see in
    2 the morning?
    3 A. A few, maybe one to three dead birds at a
    4 time.
    5 Q. And what did the sea gulls look like, how
    6 many?
    7 A. How many?
    8 Q. Describe what you saw.
    9 A. Hundreds, hundreds over that particular
    10 area of the parking lot.
    11 Q. And at what time of the year have you
    12 noticed the sea gulls?
    13 A. Starting in the spring. This year, I saw
    14 them probably around the beginning of March.
    15 Q. Do the gulls fly over the lot?
    16 A. Constantly.
    17 Q. And where do the gulls walk?
    18 A. In the parking lot, in the grassy areas
    19 outside of the parking lot.
    20 Q. And which parking lot?
    21 A. The parking lot that I park in as well as
    22 the parking lot to the north of the building.
    23 Q. And where do you see the bird droppings?
    24 A. All over the asphalt, all over the cars,
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    310
    1 on the side of the building, on the windows of the
    2 building.
    3 Q. Do you have any health problems?
    4 A. Yes, I do. I have asthma.
    5 Q. For how long have you had asthma?
    6 A. Since approximately 1979.
    7 Q. Have you -- prior to 1998, have you taken
    8 medication for asthma?
    9 A. Occasionally.
    10 Q. What is occasionally? What do you mean?
    11 A. Usually due to illness or allergic --
    12 Q. And what type of medication did you use to
    13 take?
    14 A. I'll take an inhalant, which is an
    15 albuterol drug, and I'll do a nebulizer treatment,
    16 which is, again, albuterol usually when I'm sick.
    17 Q. This is all before 1998?
    18 A. Uh-huh, and occasionally, I'll take
    19 Prednisone when it's a severe reaction.
    20 Q. Who do you go to for treatment?
    21 A. I currently go to Dr. Monahan.
    22 Q. What type of doctor is that?
    23 A. An internist.
    24 Q. Prior to working at OMC, what aggravated
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    1 your asthma?
    2 A. My biggest allergent was in the spring or
    3 late spring is cottonwood, which comes like in June
    4 around Father's Day.
    5 Q. When your asthma is aggravated, what
    6 happens?
    7 A. I have difficulty breathing.
    8 Q. Does it prevent you from doing --
    9 A. It prevents me from even walking up the
    10 stairs or walking across the room when it's severe.
    11 Q. Have animals ever affected your asthma?
    12 A. No. I was told that they could.
    13 Q. Do you have any animals?
    14 A. I have a dog and a cat.
    15 Q. Do they affect your asthma?
    16 A. No, because we treat them for their
    17 dander.
    18 Q. What kind of -- what do you mean you treat
    19 them for their dander?
    20 A. They get special baths to make sure that
    21 their dander is not up and that seems to alleviate
    22 any problems that I've ever had with them.
    23 Q. Are you able to explain dander?
    24 A. Dander is just like with a human if you
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    1 scratch your head, you're going to get the scalp
    2 shavings. That's what they call dander, and when
    3 animals scratch and when they shed, the dander will
    4 go into the air, and some asthmatics have an
    5 allergic reaction to that dander, and I've only had
    6 one time a reaction to dander, and that was because
    7 the house had about -- the house that I was in had
    8 about eight cats.
    9 Q. You had said that you were told that
    10 animals could aggravate asthma. What kind of
    11 animals are you aware of that could aggravate
    12 asthma?
    13 A. I was told by the allergist in '79 that
    14 the three main causes of animal allergants would be
    15 cats, dogs, and birds, and birds actually being on
    16 the top of the list due to the feathers and the
    17 fecal droppings.
    18 Q. Have you ever had any experience with
    19 birds aggravating your asthma?
    20 A. No, not until I started working here at
    21 OMC.
    22 Q. And what happened when you started working
    23 at OMC?
    24 A. This particular year in March, I
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    1 started -- when I would go to work I would have a
    2 lot of coughing and sneezing. My eyes would be
    3 running. I probably endured that for about three
    4 weeks and finally went to the allergist -- the
    5 internist, and after talking we decided that I
    6 wasn't having a problem at home. I was having a
    7 problem at work, and the first question out of her
    8 mouth was had I had any new pets, and I said no.
    9 She said are you sure, no dogs, no
    10 cats, no birds, and I said well, unless you want to
    11 count all the birds that are at OMC, and after
    12 discussing the amount of fecal matter, the amount
    13 of feathers that float around at OMC, they decided
    14 that that was probably the cause to my somewhat of
    15 an allergic reaction.
    16 Q. What -- can you describe what your
    17 allergic reaction was?
    18 A. Well, for about three weeks, I did the
    19 coughing, sneezing, and running eyes, and it was
    20 very uncomfortable, and then it turned into
    21 aggravating the actual breathing, and what would
    22 happen is I would go into an asthma attack.
    23 Q. Can you describe an asthma attack?
    24 A. In the medical sense, an asthma attack is
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    314
    1 when the inside of your lungs start to swell, and
    2 it makes -- and the arteries and vessels around
    3 your lungs start to close up on you. So what
    4 happens is you can take a deep breath, but you're
    5 not getting in near the oxygen that you need.
    6 Q. And when did you last experience an asthma
    7 attack?
    8 A. About a week and a half ago.
    9 Q. And where were you?
    10 A. Coming home from work in the car.
    11 Q. Had you been outside that day?
    12 A. Yes, I had.
    13 Q. When at work do you have problems?
    14 A. When I come in in the morning, if I go out
    15 at lunchtime, when I leave at the end of the day,
    16 or if they open the bay doors to the boat house on
    17 the lower level because I sit where the stairs come
    18 up from the lower level. So I'll know immediately
    19 when they open those doors.
    20 Q. Whether you visited your doctor, did
    21 anything change after that visit?
    22 A. They put me on Prednisone and a new
    23 allergy medication, and I'll be on continuous
    24 Prednisone inhalers. Right now, it's indefinite.
    L.A. REPORTING (312) 419-9292

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    1 Q. Can you describe your asthma when you're
    2 outside as compared to when you're inside at OMC?
    3 A. If I'm outside for -- I have a tendency to
    4 be very, very short of breath. For example, coming
    5 in in the morning when the asthma is flaring up, it
    6 prevents me from even walking up the stairs to the
    7 second floor. I have to take the elevator
    8 upstairs.
    9 Q. Has it prevented you from doing anything
    10 else at work?
    11 A. I can't go out at lunchtime. I try to
    12 avoid that as much as possible. A lot of the
    13 employees will try and enjoy some of the weather
    14 for a few minutes, and I have not even tried to
    15 endure that.
    16 Q. Do other employees go out at lunch?
    17 A. Uh-huh.
    18 Q. What has been your experience with bird
    19 droppings?
    20 A. They're all over my car. They're all over
    21 the -- where we walk. I clean my shoes before I go
    22 in the house every day, and they are on my fellow
    23 employees from time to time.
    24 Q. What kind of car do you have?
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    1 A. I have a '91 Cavalier, but I'm currently
    2 driving an older Oldsmobile because I don't want my
    3 Cavalier's paint ruined.
    4 MS. SMETANA: I have no further questions.
    5 HEARING OFFICER KNITTLE: Ms. Aavang?
    6 MS. AAVANG: No.
    7 HEARING OFFICER KNITTLE: Mr. Sweda?
    8 MR. SWEDA: Yeah. Just one question.
    9 C R O S S - E X A M I N A T I O N
    10 by Mr. Sweda
    11 Q. You indicated -- one of the first
    12 questions was one of what do you see when you -- on
    13 your walk from your car to the office building.
    14 You said it was approximately about a block away.
    15 You mentioned a number of things that you see like
    16 bird droppings, feathers, occasionally dead birds.
    17 Do you see anything else on that
    18 walk?
    19 A. Cars and fellow employees. I'm not sure
    20 what else you're --
    21 Q. I'm not asking -- trying to put words into
    22 your mouth. I'm just saying on your walk from your
    23 car to the place of your office, do you see
    24 anything else besides birds flying overhead, bird
    L.A. REPORTING (312) 419-9292

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    1 droppings, and feathers, and an occassional gull,
    2 or is that all you see?
    3 A. I see the bay -- the harbor to my left.
    4 Q. Anything else?
    5 A. No, I don't think so.
    6 MR. SWEDA: Okay. That's all. No further
    7 questions.
    8 HEARING OFFICER KNITTLE: You can step
    9 down, please. Let's go off the record for a
    10 second.
    11 (Discussion had
    12 off the record.)
    13 HEARING OFFICER KNITTLE: Just for the
    14 record, pursuant to an oral motion that we granted
    15 yesterday, we are allowing Mr. Sweda to reopen his
    16 case in chief and call Greg Zack. For that limited
    17 purpose only, his case in chief will be reopened.
    18 MS. AAVANG: And we just ask that on the
    19 record we show our continuing objection as put
    20 forth as to his testimony coming at a point outside
    21 of the testimony of the direct case and also the
    22 motions in limine that have been presented.
    23 MS. SMETANA: I would just, for the
    24 record, like to add that up to this very moment in
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    1 time, the respondents have not received from
    2 complainant the disclosure of any expert report
    3 from any experts he is calling, and to this date we
    4 have received nothing.
    5 HEARING OFFICER KNITTLE: With those
    6 statements being made, Mr. Sweda, would you like to
    7 begin? Let's swear in Mr. Zack.
    8 (Witness sworn.)
    9 HEARING OFFICER KNITTLE: Mr. Sweda, it's
    10 your witness.
    11 WHEREUPON:
    12 G R E G O R Y Z A C K,
    13 called as a witness herein, having been first duly
    14 sworn, deposeth and saith as follows:
    15 D I R E C T E X A M I N A T I O N
    16 by Mr. Sweda
    17 Q. Can you state your name and address for
    18 the record? Then we'll go into other questions.
    19 A. My name is Greg Zack, and I reside at 36
    20 Birch Drive, Chatham, Illinois, 62629.
    21 Q. Your occupation, job title,
    22 responsibilities, and duties, reiterate those, if
    23 you forget one of those, and describe those, your
    24 occupation and job title?
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    1 A. My job title is noise advisor. I'm also
    2 listed as a senior public service administrator on
    3 the payroll, which is kind of a general term for
    4 virtually all of mid and upper management at EPA.
    5 My job responsibilities entail being
    6 familiar with all of the Pollution Control Board
    7 noise cases from 1973 to the present, measuring
    8 sound, noise, vibration, attending America National
    9 Standards Institute meetings on the drafting of
    10 techniques for measuring noise, answering citizens'
    11 complaints by telephone statewide regarding noise,
    12 answering questions from attorneys statewide
    13 regarding noise, answering industry questions
    14 regarding measurement and regulated quantities of
    15 noise, performing noise control engineering for the
    16 Illinois EPA and a large segment of the state of
    17 Illinois departments and agencies.
    18 Q. Okay. Approximately, how long have you
    19 been doing this at the state and if there were any
    20 changes in your title?
    21 A. I've had the title since 1987. Prior to
    22 that, for five years prior to that, I was the
    23 manager of compliance assurance for the bureau of
    24 land, and then prior to that I was the regional
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    1 manager for central southern region of noise
    2 pollution, and then prior to being regional
    3 manager, I was a field investigator Environmental
    4 Protection specialist investigating noise
    5 complaints statewide.
    6 MR. SWEDA: Okay. At this point, I'd like
    7 to -- I don't have any little stickies to attach an
    8 exhibit which was provided to respondents earlier.
    9 HEARING OFFICER KNITTLE: Do you have any
    10 exhibit tags for Mr. Sweda?
    11 MS. SMETANA: Yes.
    12 MR. SWEDA: Thank you. Send me a bill.
    13 MS. SMETANA: That's all right. You can
    14 keep those for now.
    15 MR. SWEDA: I don't know what exhibit I
    16 left on.
    17 HEARING OFFICER KNITTLE: I can tell you
    18 you were on Complainant's Exhibit No. 8.
    19 (Complainant's Exhibit No. 8
    20 marked for identification,
    21 4-20-99.)
    22 MR. SWEDA: It's a copy of his experience
    23 and his resume, Mr. Zack's resume and experience.
    24 MS. SMETANA: May I --
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    1 HEARING OFFICER KNITTLE: Yeah. You've
    2 got to show this to the respondents first.
    3 MS. SMETANA: We recognize the document.
    4 MS. AAVANG: No. I've seen it.
    5 HEARING OFFICER KNITTLE: Is there any
    6 objection? Well, Mr. Sweda, are you offering this
    7 as an exhibit?
    8 MR. SWEDA: Yes. I'm qualifying him.
    9 HEARING OFFICER KNITTLE: Is there any
    10 objection to this exhibit?
    11 MS. SMETANA: I would just ask that it's
    12 clarified for what purpose it's being offered as an
    13 exhibit.
    14 MR. SWEDA: The purpose is to provide a
    15 resume and experience background of qualifications
    16 of Mr. Zack in his job title and his occupation.
    17 HEARING OFFICER KNITTLE: Any objection?
    18 MS. SMETANA: Is there any other purpose
    19 besides that?
    20 MR. SWEDA: Well, to attend this hearing
    21 also.
    22 MS. SMETANA: Related to Exhibit 8.
    23 HEARING OFFICER KNITTLE: Well, we're --
    24 MR. SWEDA: There's nothing on this
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    1 hearing that's addressed in that.
    2 HEARING OFFICER KNITTLE: I'm going to
    3 admit this as an exhibit. If you have any
    4 objection, I'd be happy to hear them.
    5 MS. SMETANA: No.
    6 HEARING OFFICER KNITTLE: Exhibit No. 8 is
    7 admitted. It looks to be Greg Zack's experience --
    8 MR. SWEDA: It's not stapled. So don't
    9 lose it.
    10 HEARING OFFICER KNITTLE: That's okay.
    11 You can proceed, Mr. Sweda.
    12 BY MR. SWEDA:
    13 Q. Can you explain to this proceeding why you
    14 are here today?
    15 A. I am here under subpoena.
    16 Q. And who subpoenaed you?
    17 A. You subpoenaed me to testify in this case.
    18 Q. Okay. Have I employed you or retained you
    19 or paid you for any of your professional services?
    20 A. No.
    21 Q. You've indicated some, in your
    22 responsibilities and duties, that on an average
    23 year, and these questions refer to some of those
    24 responsibilities and duties, about how many
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    1 inquiries about noise complaints are made to your
    2 department, is it, or your office?
    3 A. Approximately, 2,000.
    4 Q. Approximately, 2,000 for the whole state
    5 of Illinois?
    6 A. For the whole state of Illinois, that's
    7 correct, sir.
    8 Q. And just a question that occurs to me is
    9 how do you deal with that amount of inquiries?
    10 What's the normal procedure for dealing with
    11 inquiries? These are additional inquiries, not
    12 complaints, but just inquiries.
    13 A. Okay. On an inquiry, normally an inquiry
    14 is from a professional person, either an attorney
    15 or an engineer regarding allowable noise limits,
    16 how to measure the noise, what type of
    17 instrumentation to use, what standards and
    18 regulations to refer to.
    19 As far as an inquiry from a citizen,
    20 rarely do I -- I do get an occasional inquiry from
    21 a citizen who will ask about noise, and then as we
    22 discuss their inquiry, I realize that they do have
    23 a noise complaint, and then I describe my self-help
    24 system to the citizen, but normally -- and that
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    1 will be the extent of inquiries, just what I would
    2 call a pure inquiry as opposed to a complaint.
    3 Q. That covers the initial inquiries. About
    4 how many further along inquiries would turn into
    5 complaints or prior to them turning into complaints
    6 do you provide further investigation of complaints
    7 that are filed and --
    8 A. If -- I'm sorry.
    9 Q. -- such as noise measurements or how many
    10 complaints, noise measurements or other technical
    11 data that you may supply.
    12 Q. Given my lack of resources, in other
    13 words, I am a one-man state noise program, I found
    14 that I can provide the most assistance by
    15 explaining to others how to handle the problem. As
    16 far as taking measurements is concerned,
    17 measurement taking is a very time-consuming
    18 process.
    19 Typically, one set of measurements
    20 will take about three working days. So I -- in
    21 order to maximize my efficiency, I do everything I
    22 can to avoid taking measurements because of the
    23 time factor, and further answering your question,
    24 as far as taking measurements, typically I would
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    1 limit taking any measurements to a situation that
    2 was going to hearing and in which I was subpoenaed
    3 as an expert witness and given the time available,
    4 opportunity, and generally a relatively easy to
    5 measure noise source, I would take measurements,
    6 but those criteria would pretty much have to be
    7 met.
    8 In other words, if the noise source
    9 was, for any reason, weather dependent or difficult
    10 to measure from the standpoint of being variable or
    11 sometimes there, sometimes not, normally I wouldn't
    12 even attempt to measure in a situation like that.
    13 Q. So it depends on the individual case is
    14 what I hear from you as well as the time
    15 constraints that you may actually get involved in
    16 terms of measurement --
    17 A. That's correct.
    18 Q. -- actions being done by yourself.
    19 And what kind of testimony do you
    20 provide at hearings or court proceedings on noise,
    21 and I mention court proceeding because today we're
    22 before the Illinois --
    23 MS. SMETANA: I'm going to object to
    24 explaining the question.
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    1 HEARING OFFICER KNITTLE: That's
    2 sustained. You can ask him a question, Mr. Sweda,
    3 but try to keep it to a simple question that he can
    4 answer.
    5 BY MR. SWEDA:
    6 Q. What kinds of testimony do you provide at
    7 hearings?
    8 A. The testimony is quite varied depending
    9 upon the situation. If I have measured the noise,
    10 of course I will describe how it was measured and
    11 the results. As far as a solution to the noise
    12 problem, I would describe in detail along with
    13 estimated cost of solution solutions that I have
    14 worked up for the problem.
    15 I will also, based on descriptions of
    16 the noise or testimony of the complainants, render
    17 an opinion based on my experience as to whether or
    18 not what is being described would in likelihood
    19 exceed the allowable noise under Rule 900.102 of
    20 the Title 35, Chapter H of the Illinois
    21 Administrative Code.
    22 Q. So, in other words, you're saying you
    23 would --
    24 MS. SMETANA: I'm going to object to him
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    1 putting words into the witness' mouth.
    2 HEARING OFFICER KNITTLE: I'm going to let
    3 him ask his question and see what he says, and then
    4 you can object.
    5 MR. SWEDA: I didn't even hear what she
    6 said.
    7 HEARING OFFICER KNITTLE: She's objecting
    8 because you're putting words into the witness'
    9 mouth.
    10 BY MR. SWEDA:
    11 Q. Would your statements or opinions based on
    12 your experience include what might be presented for
    13 or -- what might be presented in a case of
    14 witnesses testifying at hearings?
    15 MS. SMETANA: I'm going to object again to
    16 leading the witness.
    17 HEARING OFFICER KNITTLE: Overruled. You
    18 can answer if you can. Do you understand the
    19 question?
    20 THE WITNESS: No.
    21 BY THE WITNESS:
    22 A. Mr. Sweda, could you speak up a little
    23 bit. I'm a little bit hard of hearing, and you're
    24 kind of quiet.
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    1 HEARING OFFICER KNITTLE: Mr. Sweda, why
    2 don't you rephrase that. I don't think that was a
    3 question that he could really answer.
    4 BY MR. SWEDA:
    5 Q. At hearings, do you opinion on facts --
    6 excuse me. In hearings, do you opinion on
    7 testimony provided by witnesses to noise
    8 situations?
    9 A. Yes. Given a description of the noise by
    10 a complainant, I will evaluate the description
    11 based on, again, my experience and knowledge in the
    12 noise field and also based upon what is at the
    13 present time accepted criteria by the Pollution
    14 Control Board for determining whether or not the
    15 source appeared to be a nuisance and you give an
    16 opinion as to whether or not it would rise to the
    17 standard of a nuisance.
    18 Q. I would like to say that -- I'm going to
    19 say that in your opinion, would --
    20 MS. SMETANA: I'm going to object because
    21 Mr. Zack has not yet been qualified as an expert to
    22 give an opinion.
    23 HEARING OFFICER KNITTLE: Mr. Sweda, do
    24 you have anything to say?
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    1 MR. SWEDA: I have another exhibit --
    2 objection. I have another exhibit in support in
    3 denial of her objection. I have no way of knowing
    4 your legalese way to proceed to say that Mr. Zack
    5 is --
    6 HEARING OFFICER KNITTLE: What are you
    7 planning on offering as an exhibit?
    8 MR. SWEDA: A case.
    9 HEARING OFFICER KNITTLE: A case.
    10 Let's -- I'm going to overrule your objection. Let
    11 him ask Mr. Zack his questions. If there is a
    12 question as to whether or not he's an expert, the
    13 Board will decide that, and the Board can view the
    14 objections by the way of his testimony. Go ahead.
    15 MS. SMETANA: The witness can't and cannot
    16 give an opinion as an expert without there being
    17 proper foundation laid that he is an expert in
    18 whatever he's going to testify to. So it has not
    19 been established.
    20 HEARING OFFICER KNITTLE: I understand
    21 your objection. I'm still overruling it and I'm
    22 going to allow him to ask his questions to Mr. Zack.
    23 As I said, you can renew these objections to the
    24 Board.
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    1 MS. AAVANG: I'll just also object that he
    2 hasn't provided any background as to what material
    3 or information that he's relying upon.
    4 HEARING OFFICER KNITTLE: I'm hoping that
    5 he will do that before he actually starts asking
    6 these questions. Mr. Sweda, you're being given
    7 some leeway here because you are a pro se
    8 complainant. So why don't you take advantage of
    9 that and proceed.
    10 BY MR. SWEDA:
    11 Q. Are you aware of and have knowledge of
    12 propane cannons used in animal dispersal
    13 techniques?
    14 A. I've had a case that I handled about 20
    15 years regarding propane cannon use for frightening
    16 away coyotes.
    17 Q. And what was the purpose and the intent of
    18 those cannons in that particular case?
    19 A. The purpose of the two cannons was to fire
    20 every few minutes and generate a very loud sound
    21 during the night, and to some extent during the
    22 day, that would frighten or designed to frighten
    23 coyotes away from a pig farmer's pigs to prevent
    24 the coyotes from eating the little pigs.
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    1 Q. Did you have personal knowledge of this
    2 particular case as an employee of the IEPA?
    3 A. Yes. I had -- I was regional manager at
    4 the time and received the complaint personally
    5 through our complaint system. I handled the entire
    6 case by myself as far as contacting the
    7 complainant, investigating the case, testifying in
    8 court as to the impact of the noise and as to the
    9 measurements taken, how the measurements were
    10 taken, and up and including the conclusion of the
    11 case, so I was involved in the case from beginning
    12 to end.
    13 Q. In support of what?
    14 A. In support of the complaint, the
    15 complaintant's case. The complainant relied upon
    16 my knowledge, and I also dealt with the noise
    17 emitter, looked for alternate solutions to the
    18 problem, and initially the noise emitter was not
    19 willing to solve the problem other than shooting
    20 the propane cannons off.
    21 I had suggested a fence be used, an
    22 electric fence be used in lieu of the cannons, and
    23 the case went to circuit court, and the circuit
    24 court enjoined the farmer from using the cannons,
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    1 and the attorney for the farmer had contacted me as
    2 to some methodology to reduce the noise from the
    3 cannons, and I explained that I didn't think that
    4 was appropriate because the cannons were designed
    5 to frighten birds or animals and any muffling of
    6 the device would -- to the point where it would
    7 comply with Illinois regulations would, in my
    8 opinion, render it useless for frightening
    9 wildlife, and that's based on my experience with
    10 wildlife and working in the noise area for the last
    11 27 years that typically the wildlife seems to be
    12 more tolerant of noise than people do.
    13 Q. I have some other questioning in this
    14 regard, but I'd like to submit the case that was
    15 involved and the proceeds from that case which were
    16 provided to the respondents orally and during --
    17 writtenly transmitted to the respondents after the
    18 deposition being taken of Mr. Zack?
    19 MS. AAVANG: Objection. It's irrelevant.
    20 It deals with a case in 1979 in a rural area. It's
    21 not the same case. I don't see the relevancy, and
    22 I think probably he's already testified to the key
    23 factors in it, and I think it has more of a
    24 possible prejudicial effect than a probative value.
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    1 MS. SMETANA: I guess I'd like to add that
    2 what Mr. Sweda has there is a legal record, it's a
    3 public record, and the witness has testified to his
    4 experience and involvement in the case. I think
    5 that testimony should stand by itself.
    6 HEARING OFFICER KNITTLE: Mr. Sweda?
    7 MR. SWEDA: My understanding of this
    8 particular case today, as well as from the
    9 deposition being taken and it was explained that --
    10 and as I've read through this that Mr. Zack was
    11 heavily involved in this case. He was the leader
    12 of the IEPA in proceeding on this case even though
    13 it wasn't through the Pollution Control Board as a
    14 state employee in the noise division and also the
    15 use of propane cannons.
    16 HEARING OFFICER KNITTLE: I understand
    17 that. As you know, the evidentiary standards for
    18 the Illinois Pollution Control Board are different
    19 than they are for circuit court. I'm sure you --
    20 pardon?
    21 MS. SMETANA: Nothing.
    22 HEARING OFFICER KNITTLE: If you have
    23 something to say, go ahead and say it.
    24 MS. SMETANA: No. Sorry.
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    1 HEARING OFFICER KNITTLE: And so I'm going
    2 to admit this. The Board can look at it and decide
    3 whether it's relevant or not. Go ahead, Mr. Sweda.
    4 You can leave it there for a while, Mr. Sweda. You
    5 can go ahead and ask Mr. Zack some more questions.
    6 BY MR. SWEDA:
    7 Q. Based on your experience -- in your
    8 opinion, can effects of noise on people cause
    9 them -- cause people not to hear themselves talking
    10 with another person close by or not be able to sit
    11 in their yard and relax or reading the newspaper
    12 while sitting in the yard or in the house?
    13 MS. SMETANA: I'm going to object to lack
    14 of foundation.
    15 HEARING OFFICER KNITTLE: Sustained.
    16 Mr. Sweda, try to explain exactly
    17 what you're talking about instead of asking such a
    18 broad question. Why don't you rephrase that.
    19 BY MR. SWEDA:
    20 Q. Can things such as trying to sleep at
    21 night or wake up in the morning be disturbed and
    22 cause a concern in terms of the noise problem?
    23 MS. SMETANA: I'm going to object, again,
    24 as to relevance. This case does not involve
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    1 nighttime noises.
    2 HEARING OFFICER KNITTLE: I would overrule
    3 it. I don't understand the question. I don't know
    4 that there's a question here.
    5 BY MR. SWEDA:
    6 Q. Would someone getting up in the morning
    7 who testified or complained that they woke up to
    8 cannon noise be something that you would be
    9 cognizant of and say that this is possibly a
    10 intrusion and a nuisance in terms of what the
    11 legislation and acts say?
    12 MS. SMETANA: I'm going to again object.
    13 It's speculative, calling the witness to draw
    14 conclusions.
    15 HEARING OFFICER KNITTLE: You have to
    16 ask -- sustained. You have to ask him some
    17 specific questions, Mr. Sweda. It's just -- I'm
    18 not trying to prevent you from asking questions,
    19 and I am going to allow you to ask your questions
    20 of this witness. However, you're going to have to
    21 ask some questions that I think he's capable of
    22 answering and understanding and that are relevant
    23 to the case.
    24
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    336
    1 BY MR. SWEDA:
    2 Q. Based on your experience as a noise
    3 advisor for the state of Illinois, would someone
    4 saying to you that they're not able to go into
    5 their backyard and do gardening because the noise
    6 from propane cannons was loud and obnoxious be
    7 something that you have run into in the past or
    8 would you consider an opinion in terms of your
    9 expertise as a noise pollution problem?
    10 MS. SMETANA: I'm going to object for a
    11 compound question and also lack of foundation.
    12 HEARING OFFICER KNITTLE: Yeah. I'll
    13 sustain, Mr. Sweda, you have to ask him, like, one
    14 question at a time, and you keep running three or
    15 four questions together, and it's going to be hard
    16 for him to answer those questions.
    17 BY MR. SWEDA:
    18 Q. Is someone saying to you that they can't
    19 go out in their backyard and sit and read a
    20 newspaper without being disturbed by propane
    21 cannons a possible problem with the noise act?
    22 MS. SMETANA: I'm going to, again, object
    23 to the lack of foundation.
    24 HEARING OFFICER KNITTLE: Overruled.
    L.A. REPORTING (312) 419-9292

    337
    1 Answer the question.
    2 BY THE WITNESS:
    3 A. In answering your question about using the
    4 backyard to read a newspaper while propane cannons
    5 are being fired, normally what we look for would be
    6 situations where there is a disturbance of sleep,
    7 disturbance of, say, using the telephone, watching
    8 television, carrying on a conversation in the home
    9 or the yard, but like you stated the newspaper
    10 disturbance is honestly not the first time I've
    11 heard that one honestly.
    12 BY MR. SWEDA:
    13 Q. Okay. Other kinds of activities, if I
    14 were to say conversing, trying to listen to some
    15 music, which would be comparable to talking, trying
    16 to have a conversation on the phone, are these the
    17 kinds of activities that you would consider to be
    18 covered under the Act?
    19 MS. SMETANA: Again, I'm going to object
    20 as leading, putting words into the witness' mouth,
    21 and it's entirely speculative.
    22 HEARING OFFICER KNITTLE: Okay. Ms.
    23 Aavang, do you have anything?
    24 HEARING OFFICER KNITTLE: I'm going to
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    338
    1 allow him to get through this with Mr. Zack. If
    2 you want to have a standing objection to all this
    3 testimony based on those objections you just made,
    4 I will allow that. I know this is testimony that's
    5 subject to dispute not only to the motions in
    6 limine, but your previous objections to his
    7 testimony, I've allowed that as well, but I am
    8 going to allow him to try to get through this with
    9 Mr. Zack.
    10 Would you like a standing objection?
    11 MS. AAVANG: Why don't we do that, your
    12 Honor, a standing objection. Mr. Knittle, why
    13 don't we do a standing objection --
    14 HEARING OFFICER KNITTLE: Yeah.
    15 Mr. Knittle is fine.
    16 MS. AAVANG: -- as to lack of foundation,
    17 relevance.
    18 HEARING OFFICER KNITTLE: I don't know if
    19 he's even seen the -- listened to the cannons, but,
    20 I mean, that's something you're going to get into
    21 I'm sure, but I am going to allow Mr. Sweda to
    22 continue.
    23 So, Mr. Sweda, why don't you try to
    24 continue and try to keep the questions simple and
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    339
    1 easy for Mr. Zack to understand.
    2 THE WITNESS: Mr. Hearing Officer, I don't
    3 mean to interrupt. He asked me the question, and
    4 I'm just not quite sure if we resolved the question
    5 or not.
    6 HEARING OFFICER KNITTLE: Do you remember
    7 the question?
    8 THE WITNESS: I was going to ask the court
    9 reporter to read it back.
    10 HEARING OFFICER KNITTLE: Why don't we
    11 have Mr. Sweda start over again. We'll start from
    12 the beginning.
    13 THE WITNESS: Yes, sir.
    14 BY MR. SWEDA:
    15 Q. I had asked Mr. Zack if the following
    16 types of activities might be, in his expert
    17 opinion, activities that would be covered under
    18 observable serious nuisances or violations of the
    19 Noise Pollution Act, i.e., things such as trying to
    20 converse with a person who's close to you, trying
    21 to sleep or get up from sleep?
    22 MS. SMETANA: I'm going to object.
    23 There's multiple questions. I think you need to
    24 clarify for the witness.
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    340
    1 HEARING OFFICER KNITTLE: Sustained.
    2 Mr. Sweda, I was trying to get you to
    3 ask one question at a time that the witness could
    4 answer instead of -- you understand what I'm
    5 saying. You do keep providing -- not only
    6 providing answers for the witness when you're
    7 asking the question, but also providing multiple
    8 answers to multiple questions, and that's really
    9 not proper, and I'm going to -- like I said, I'll
    10 allow you to get through this with Mr. Zack. I
    11 know the Board is going to want to hear his
    12 testimony on this case. However, I'm going to have
    13 to ask you to at least attempt to ask them in a
    14 semi-proper way.
    15 MR. SWEDA: I'll try, which I have been
    16 trying.
    17 HEARING OFFICER KNITTLE: I understand.
    18 I'm trying to tell you how to ask them in a
    19 semi-proper way by asking one question and not
    20 providing the answer.
    21 BY MR. SWEDA:
    22 Q. Would someone trying to sleep be a covered
    23 kind of activity under the Act?
    24 A. Yes. I think probably one of the most
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    341
    1 important factors looked at as far as noise being a
    2 nuisance is sleep. Sleep disturbance is so
    3 important that for nighttime regulation purposes
    4 the state of Illinois, the U.S. Government, and,
    5 for that matter, most of the country of the world
    6 will enact a ten decibel penalty for nighttime
    7 noise.
    8 It's almost a universal standard, and
    9 what that does is to reduce the allowable noise by
    10 a factor of 90 percent. So what we see for sleep
    11 disturbance is considerable protection built into
    12 the various regulations pertaining to that, and any
    13 significant occurrence, sleep disturbance due to
    14 noise, would, in my opinion, qualify that noise as
    15 being a nuisance because it's definitely
    16 interfering with the enjoyment of life, which is
    17 described in the Board regulations and the
    18 Environmental Protection Act.
    19 MS. SMETANA: I'm going to --
    20 HEARING OFFICER KNITTLE: Ms. Smetana?
    21 MS. SMETANA: I'm just going to object on
    22 drawing legal conclusions.
    23 HEARING OFFICER KNITTLE: Your objection
    24 is noted. Mr. Sweda?
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    342
    1 BY MR. SWEDA:
    2 Q. Would the conversing with someone in close
    3 proximity also be something that might be covered
    4 under the Act?
    5 A. Yes. If we look at our -- especially I
    6 think what you mean there are the regulations as
    7 much as the Act, and we look at the noise
    8 regulations. We're looking at a situation there
    9 where speech interference is a very important
    10 factor in the control of noise and especially in
    11 predicting noise being a nuisance problem and,
    12 again, we get back into the enjoyment of life area.
    13 Q. Okay. I will shift to another area, try
    14 anyway.
    15 Were you provided a copy of the noise
    16 study by Shiner & Associates?
    17 A. Yes, I was.
    18 MR. SWEDA: I would like to offer such
    19 study as an exhibit.
    20 MS. SMETANA: I'm going to object to the
    21 introduction of that into evidence. There's
    22 absolutely no foundation laid.
    23 HEARING OFFICER KNITTLE: Sustained.
    24
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    343
    1 BY MR. SWEDA:
    2 Q. Do you have a copy of the Shiner &
    3 Associates, Incorporated report dated March 23rd of
    4 1999?
    5 A. Yes, I do.
    6 Q. And when did you first become aware of
    7 this report, approximately?
    8 A. A few weeks ago, I was sent a copy either
    9 by yourself or possibly by the counsel to the
    10 respondent. I'm not sure which source I got it
    11 from.
    12 Q. Okay. Was this report, prior to you
    13 receiving it, brought to your attention in any way
    14 by anyone?
    15 A. To the best of my recollection, it was
    16 brought up during my deposition by telephone.
    17 Q. Approximately?
    18 A. A few weeks ago.
    19 Q. A few weeks ago.
    20 What may have been -- what may have
    21 you been asked about this report at that time?
    22 A. Well, since I hadn't seen it, I don't
    23 believe I was asked any questions specific to that
    24 report, but I believe that I may have asked to see
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    1 a copy of it if there were no objections to my
    2 looking it over, and I subsequently received a
    3 copy.
    4 Q. Were you provided substance from this
    5 report over the phone telephonically and asked to
    6 comment on it telephonically during your
    7 deposition?
    8 A. I don't recall. I know it was brought up
    9 during the phone conference or the phone
    10 deposition, but at this point, I --
    11 Q. Any conclusion -- I'm sorry. I was trying
    12 to refresh -- see if there's anything -- were there
    13 any respondents bringing up any conclusions of the
    14 report or summary of the report?
    15 MS. SMETANA: Object as to hearsay.
    16 HEARING OFFICER KNITTLE: Mr. Sweda, what
    17 are you trying to do?
    18 MR. SWEDA: I'm trying to establish that
    19 there's a relevance of this report to this case.
    20 HEARING OFFICER KNITTLE: Are you still
    21 trying to submit it into evidence?
    22 MR. SWEDA: Yes.
    23 HEARING OFFICER KNITTLE: I'm not going to
    24 allow it to be submitted into evidence based on his
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    1 testimony because there isn't appropriate
    2 foundation, but I will allow you to ask him
    3 questions about the report if he's seen it and
    4 reviewed it.
    5 BY MR. SWEDA:
    6 Q. This report by Shiner & Associates, I
    7 don't know if I said that, Incorporated is one of a
    8 technical nature and they're called acoustical
    9 engineers. They proceeded to -- what did they
    10 proceed -- what did the report proceed to do after
    11 reading it and looking at it and reviewing it, and
    12 how did they do their report basically since it's a
    13 noise evaluation study or measurement study?
    14 A. The report was an attempt to measure the
    15 noise of the propane cannons in the Waukegan area
    16 by Mr. Brian Homans of Shiner & Associates. He
    17 had, I believe, taken measurements over
    18 approximately a two-day period and came to the
    19 conclusion that the sound did not exceed the
    20 Pollution Control Board regulations for Section
    21 901.104.
    22 Having reviewed it carefully and
    23 being very familiar with 901.104, there were a
    24 couple of factors in there that I was not really
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    1 that surprised about. In order to understand
    2 what's happening with impulsive noise, and propane
    3 cannons are impulsive noise in looking at Rule 104,
    4 the Board allows a one-hour LAQ for the measurement
    5 procedure, which Mr. Homans followed and quite
    6 correctly.
    7 However, an analogy could be drawn to
    8 this. As far as measurement is concerned, applying
    9 a one-hour measurement to something as short in
    10 duration as the impulsive noise from a cannon could
    11 be compared to another profession, say, a
    12 pharmacist using a five-gallon bucket to measure
    13 any quantities of, say, prescriptions. For
    14 example, prior to the one-hour LAQ, the vast
    15 measurement was used for 104, and in that
    16 situation, we used an eyedropper to take the
    17 measurements and examine the quantities of noise,
    18 the one-hour LAQ through the measurement procedure
    19 into what I call the five-gallon bucket category so
    20 what we find is that we almost never see a
    21 violation of 104.
    22 MS. AAVANG: I'm going to object. I just
    23 don't even know what question is being answered
    24 anymore. I don't think there's a question pending.
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    1 HEARING OFFICER KNITTLE: Mr. Sweda?
    2 MR. SWEDA: I'm asking for his review of
    3 the Shiner report in terms of what its conclusions
    4 and summary were of which it was purported to be
    5 used as measurements of -- for the respondents of
    6 noise of propane cannons.
    7 HEARING OFFICER KNITTLE: Any response,
    8 Ms. Aavang?
    9 MS. AAVANG: I would just ask for
    10 clarification. Is he asking a critique of that
    11 report? I'm not sure what the question is.
    12 HEARING OFFICER KNITTLE: If you have a
    13 specific question, Mr. Sweda, you know we're not
    14 generally going to allow long narrative responses
    15 like that. You could pick up with a specific
    16 question from where he left off from his
    17 testimony.
    18 BY MR. SWEDA:
    19 Q. Are there -- I already said in my opening
    20 statement that I'm not a sound technician. So I'm
    21 wading through this, but are there influences on
    22 sound being transmitted that might or have to take
    23 into account when measuring sounds what kinds of
    24 influences influence some transmission?
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    1 A. In answer to your question, yes, there's
    2 some very large factors, especially when we get
    3 into a situation like the one you have here in
    4 Waukegan where it's my understanding your residence
    5 is approximately a mile from the noise source.
    6 The controlling factor then is going
    7 to be weather, especially wind. The difference in
    8 measurements could be as high as 40 decibels
    9 depending upon weather conditions and wind
    10 direction. In order to accurately assess what
    11 would be the worst condition, which would be
    12 normally what the Board regulations look for, we
    13 would want the wind to be blowing from the propane
    14 cannons toward your residence, and, again, with the
    15 wind blowing the other way, we could see a
    16 measurement up to 40 decibels lower.
    17 So it's very, very wind dependent and
    18 also somewhat dependent upon the presence or a lack
    19 of an inversion. Atmospheric conditions can also
    20 have a big effect on measuring this kind of noise,
    21 and, again, you asked about the Shiner report --
    22 MS. AAVANG: I'm going to object. That's
    23 not the question pending.
    24 HEARING OFFICER KNITTLE: Sustained.
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    1 BY MR. SWEDA:
    2 Q. In a noise study, where would measurements
    3 be taken considering the sources and affected
    4 parties?
    5 A. In the situation that we have here, there
    6 would be, in my opinion, two prime locations.
    7 MS. SMETANA: I'm going to object. That
    8 wasn't the question.
    9 HEARING OFFICER KNITTLE: I think it was.
    10 Overruled. Go ahead.
    11 BY THE WITNESS:
    12 A. In the situation we have here, we have
    13 what I would consider two prime locations to take
    14 the measurements. One would be at the residence of
    15 the complainant or complainants, and the second one
    16 would be in the near field of the noise source so
    17 that we have both a frequency breakdown in hertz,
    18 and so there's a spectrum of the noise source, we
    19 know what frequencies to look for, and then at,
    20 say, a distance of a mile or thereabouts. We
    21 would, again, look for that fingerprint or spectral
    22 signature of the noise.
    23 BY MR. SWEDA:
    24 Q. Does time of day, in terms of taking
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    350
    1 measurements, is that important to any kind of a
    2 noise issue, the time of day that the noise
    3 occurred?
    4 A. Yes. I think what you're saying there by
    5 saying time of day is --
    6 Q. Within a 24-hour period.
    7 A. Oh, okay. Generally speaking, what will
    8 be done is the measurement would be taken
    9 preferably when the noise first began in the
    10 morning, especially if it ever began before 7:00
    11 a.m. because before 7:00 a.m. we're into nighttime
    12 standards, which are much stricter than daytime
    13 standards.
    14 So if we ever have an occurrence
    15 before 7:00 a.m., we would definitely want a
    16 measurement at that time. In addition, it's common
    17 at that time of the morning, depending upon the
    18 time of year, it's as close to dawn or right at
    19 dawn and that -- because you're at dawn or close to
    20 dawn, you likely will have an inversion,
    21 temperature inversion, and that will tend to hold
    22 the sound levels down at the ground and produce
    23 much higher measurements at the complainant's
    24 residence than you would expect later in the day
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    1 when the inversion dissipates and the sound tends
    2 to travel upward.
    3 Q. What about nighttime?
    4 A. Nighttime would be --
    5 MS. SMETANA: I'm going to object as to
    6 relevance here.
    7 HEARING OFFICER KNITTLE: Is there any
    8 allegation of nighttime pollution -- noise
    9 pollution, Mr. Sweda?
    10 MR. SWEDA: Yes. It was mentioned in my
    11 notice and in arguments used in my direct testimony
    12 of April 1st.
    13 HEARING OFFICER KNITTLE: I mean, is there
    14 any allegation in this complaint?
    15 MR. SWEDA: In the formal complaint, yes.
    16 HEARING OFFICER KNITTLE: What is that?
    17 MR. SWEDA: On a couple of such days,
    18 noise continued past dusk for approximately one
    19 hour. Item number seven on page three of the
    20 complaint which asks for describe the duration and
    21 the frequency of the alleged pollution, and there
    22 is another sentence.
    23 MS. SMETANA: I object. It hasn't been
    24 established when dusk is or that there's been any
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    1 nighttime interference.
    2 HEARING OFFICER KNITTLE: Maybe you could
    3 define what you mean by nighttime, Mr. Sweda, for
    4 this witness before you ask those questions.
    5 MR. SWEDA: Dusk is a ever changing
    6 thing. It's defined by when the sun appears on the
    7 horizon or disappears on the horizon and it turns
    8 to night. At that time of the year, it ranges
    9 probably from 6:00 to 7:30, maybe even not until
    10 8:00 o'clock or 7:30-ish at night. So past that
    11 time will be night.
    12 HEARING OFFICER KNITTLE: Is this a
    13 question for him or an explanation to me?
    14 MR. SWEDA: Explanation about what dusk
    15 means. I think that's what you were asking.
    16 HEARING OFFICER KNITTLE: Right. I
    17 sustained her objection, but I'm going to allow you
    18 to ask questions. You just have to explain what
    19 you mean by dusk to the witness and see if that's
    20 what he's talking about.
    21 MR. SWEDA: After 7:00 p.m.
    22 MRS. SWEDA: Ask him the question.
    23 HEARING OFFICER KNITTLE: Mrs. Sweda --
    24 MRS. SWEDA: I'm sorry.
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    353
    1 HEARING OFFICER KNITTLE: -- I have to
    2 advise you --
    3 MRS. SWEDA: I'm sorry.
    4 HEARING OFFICER KNITTLE: I understand.
    5 MRS. SWEDA: I know I don't have any right
    6 to speak here.
    7 HEARING OFFICER KNITTLE: I know it's a
    8 difficult process --
    9 MRS. SWEDA: This is painful.
    10 HEARING OFFICER KNITTLE: -- for everybody
    11 involved. This is how --
    12 MRS. SWEDA: This is extremely painful.
    13 HEARING OFFICER KNITTLE: I'm sorry you
    14 feel that way. We're working our best to make sure
    15 it's not. So, Mr. Sweda, if you could ask the
    16 question again.
    17 BY MR. SWEDA:
    18 Q. Would measuring cannon noise after 7:00
    19 p.m. also be a routine or recommended procedure in
    20 terms of taking noise measurements?
    21 A. Yes. And if I could clarify, and tell me
    22 if this is not what you're looking for, but the way
    23 I understand the question --
    24 MS. SMETANA: I'm going to -- he can't ask
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    354
    1 the witness -- I mean, the witness can't ask a
    2 question --
    3 HEARING OFFICER KNITTLE: Yeah. You can't
    4 ask him what he's looking for, but feel free to
    5 respond to the answer as you see fit. If
    6 there's an objection, please make it.
    7 THE WITNESS: Yes, Mr. Hearing officer.
    8 BY THE WITNESS:
    9 A. The question that -- the 7:00 p.m. time
    10 measurement would especially be appropriate at
    11 those times of the year where dusk is occurring
    12 around 7:00 p.m., and dusk would be just before the
    13 sun disappears over the horizon until it gets dark
    14 enough outside to, say, turn the lights on or need
    15 illumination to perform the measurement.
    16 At that point in time, there is some
    17 changes in the atmospheric conditions such that
    18 impulsive sound that carries some distance tends to
    19 be focused or forced to travel along the ground.
    20 There's a refraction of the sound due to
    21 temperature layers forming in the atmosphere, and
    22 the measured levels at a measurement location will
    23 significantly increase at that point in time.
    24 MR. SWEDA: Thank you. At this point, I
    L.A. REPORTING (312) 419-9292

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    1 have no further questions.
    2 HEARING OFFICER KNITTLE: Do you want to
    3 take a break before you cross-examine or do you
    4 want to do it right now or do you need some time?
    5 MS. SMETANA: Some time would be good.
    6 HEARING OFFICER KNITTLE: Let's take
    7 five. When we resume, you'll still be on the
    8 stand. Let's go off the record for about five
    9 minutes.
    10 (Break taken.)
    11 HEARING OFFICER KNITTLE: Mr. Zack, you
    12 are still under oath and you're subject to
    13 cross-examination by the respondents. Which of the
    14 respondents is going to be starting off?
    15 MS. SMETANA: I will.
    16 HEARING OFFICER KNITTLE: Ms. Smetana, you
    17 can go ahead.
    18 MS. AAVANG: If we could just, for the
    19 record, make a motion to strike the testimony of
    20 Mr. Zack. The basis for that motion is that he was
    21 originally disclosed as an expert. He has not
    22 given any opinions really in the nature of what
    23 broad parameters of what he was indicated as an
    24 expert as being. Again, I understand the Board
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    1 wants ot hear his testimony, but I'd like to have
    2 it just on the record.
    3 HEARING OFFICER KNITTLE: Let me ask a
    4 clarification. Is this a motion directed to me to
    5 make a decision or are you making this motion for
    6 the Board?
    7 MS. AAVANG: Well, I take it from what
    8 you've told me this -- I have to -- I'm making a
    9 motion on the record so at least you can rule on it
    10 and say that I have presented it to the Board.
    11 HEARING OFFICER KNITTLE: Well, again, on
    12 the record, I'm going to deny the motion, and the
    13 Board -- if you choose to, you know, appeal my
    14 decision to the Board, you can do that at a later
    15 point in time.
    16 MS. AAVANG: I'm just doing the
    17 procedure.
    18 HEARING OFFICER KNITTLE: I understand.
    19 MS. SMETANA: Can I just clarify? Do we
    20 now move to strike what the Board says -- the Board
    21 to reconsider your decision?
    22 HEARING OFFICER KNITTLE: Either or
    23 actually. I think it's your preference. You can
    24 do either. I think there's a different regulation
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    1 that governs both of those, but probably both, but
    2 I have denied the motion.
    3 MS. AAVANG: Thank you.
    4 HEARING OFFICER KNITTLE: And, Ms. Smetana,
    5 you can proceed.
    6 C R O S S - E X A M I N A T I O N
    7 by Ms. Smetana
    8 Q. Mr. Zack, you work with the IEPA; is that
    9 correct?
    10 A. That's correct.
    11 Q. And the IEPA is located in Springfield; is
    12 that correct?
    13 A. That's correct.
    14 Q. And you testified that you live in
    15 Chatham, Illinois; is that correct?
    16 A. That's correct.
    17 Q. And is that close -- that's close to
    18 Springfield; is that correct?
    19 A. Yes. It's within about 200 feet of
    20 Springfield.
    21 Q. And you drove up from Springfield today?
    22 A. That's correct.
    23 Q. You had never met Mr. Sweda until today;
    24 is that correct?
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    1 A. That's correct.
    2 Q. And you've never visited Mr. Sweda's
    3 property; is that correct?
    4 A. That's correct.
    5 Q. You've never heard the cannons that are
    6 subject to this action; is that correct?
    7 A. That's correct.
    8 Q. You've never talked to Mr. Neff; is that
    9 correct? Do you know Mr. Neff?
    10 A. I'm sorry. Mr. Who?
    11 Q. You don't know Mr. Neff, John Neff, do
    12 you?
    13 A. No, I don't.
    14 Q. And you have not spent any time in the
    15 neighborhood of Mr. Sweda in Waukegan; is that
    16 correct?
    17 A. That's correct.
    18 Q. And you have not spoken to any other
    19 residents of Mr. Sweda's neighborhood; is that
    20 correct?
    21 A. That's correct.
    22 Q. If a witness were to testify that he or
    23 she was able to speak outside in the vicinity of
    24 Mr. Sweda's home in normal tones, would that affect
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    1 what you've said today about speaking in
    2 conversational tones?
    3 A. There would be a lot of factors that would
    4 go into that.
    5 Q. I just -- yes or no?
    6 A. No.
    7 Q. You had testified earlier if a person can
    8 speak at conversational tones, it's unlikely that
    9 the noise is interfering with their lives; is that
    10 correct? Just a few moments ago that was your
    11 testimony.
    12 A. I believe it was in a larger context than
    13 that.
    14 Q. One moment, please.
    15 You had testified earlier that speech
    16 interference is a factor under, you know, when
    17 considering whether a nuisance exists; is that
    18 correct?
    19 A. I'm sorry?
    20 Q. You testified that speech interference or
    21 noninterference is a factor?
    22 A. Yes, it's a factor.
    23 Q. If there's no interference with speech
    24 and people are able to speak at conversational
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    1 tones, that would contribute to that factor?
    2 A. That's correct.
    3 Q. Did you know that OMC employees of the
    4 noise source are able to speak at normal tones?
    5 A. No, I did not.
    6 Q. Did you know OMC employees at the noise
    7 source are able to work without interference from
    8 the cannons?
    9 A. No, I did not.
    10 Q. Did you know that employees in neighboring
    11 businesses are able to speak outside without
    12 interference from noise from the cannons?
    13 A. No, I didn't.
    14 Q. Sleep disturbance is not an issue or an
    15 allegation here. Are you aware of that?
    16 A. No, I wasn't.
    17 Q. OMC and the city do not run the cannons at
    18 nighttime. Are you aware of that?
    19 A. No, I wasn't aware of that either.
    20 Q. Okay. You're familiar with the Board's
    21 noise regulations?
    22 A. Yes.
    23 Q. Nighttime is defined as after 10:00 p.m.
    24 and before 7:00 a.m.; is that correct?
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    1 A. That's correct.
    2 Q. The only experience that you've had with
    3 noise from propane cannons was in the 1970s; isn't
    4 that correct?
    5 A. That's correct.
    6 Q. And in the case you referred to earlier,
    7 which I believe is the Coffman case, the propane
    8 cannons weren't being used to relocate a colony of
    9 sea gulls; isn't that true?
    10 A. That's true.
    11 Q. And in that case, the cannons were only
    12 being used at night; isn't that true?
    13 A. No. They were being used both daytime and
    14 nighttime, but predominately at night.
    15 Q. You testified earlier that the cannons in
    16 that case were being used to frighten coyotes off
    17 of the property at nighttime?
    18 A. That's true.
    19 Q. In that case, you spoke -- you testified
    20 earlier that you spoke to the emitter about the
    21 noise; is that the case?
    22 A. That's true.
    23 Q. Have you spoken to OMC or the city in this
    24 situation about the noise source?
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    1 A. No, I have not.
    2 Q. You're familiar with the Board provisions
    3 for the methodology to measure impulsive sound,
    4 aren't you?
    5 A. Yes.
    6 Q. Are you familiar that Section 900.103 of
    7 the Board's regulations is the methodology for
    8 measuring impulsive sound under the Board's
    9 regulations?
    10 A. Yes.
    11 Q. Are you familiar that Section 900.103
    12 references ANSI Standard 1.13 for field methodology
    13 for measuring sound?
    14 A. Yes.
    15 Q. Are you familiar with ANSI Standard 1.13?
    16 A. Yes.
    17 Q. Are you familiar with the optimal
    18 conditions under ANSI Standard 1.13 for measuring
    19 sound outdoors?
    20 A. No.
    21 Q. So you've never read the optimal
    22 conditions under ANSI Standard 1.13 for measuring
    23 sound outdoors?
    24 A. That standard --
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    1 Q. Just yes or no, have you ever read that
    2 standard?
    3 A. Yes.
    4 Q. Are you aware that that standard states
    5 that the optimal conditions consist of atmospheric
    6 conditions with no wind gradients?
    7 A. No.
    8 Q. Mr. Zack, you have not taken sound
    9 measurements in this case; is that correct?
    10 A. That's correct.
    11 Q. If given weather conditions, you cannot
    12 tell what the sound measurement will be; is that
    13 correct?
    14 A. Could you clarify that?
    15 A. If you were simply given the weather
    16 conditions, the wind and temperature, you are not
    17 able to tell what the sound level measurement will
    18 be at a particular receiving source from a noise
    19 source?
    20 A. You're referring to an exact number?
    21 Q. Yes.
    22 A. Yes.
    23 Q. What is your answer?
    24 A. No. The answer would be no, I would not
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    1 be able to give you an exact number.
    2 Q. There are many variables that affect
    3 impulsive sound; is that correct?
    4 A. Correct.
    5 Q. And the only way to know whether the sound
    6 level for a noise source a mile away is to measure
    7 it, is that correct, the specific sound level?
    8 A. That's true.
    9 Q. And you did not take measurements at
    10 Mr. Sweda's property?
    11 A. That's true.
    12 Q. And you did not take measurements anywhere
    13 in Mr. Sweda's neighborhood; is that correct?
    14 A. That's correct.
    15 Q. Isn't it correct that under Section
    16 901.104 of the Board's regulations that sound level
    17 measurements are based at measurements taken at the
    18 receiving source?
    19 A. Yes.
    20 Q. In the case you referred to earlier or
    21 discussed earlier, the Coffman case, the 1979 case,
    22 in that case, isn't it correct that the complainant
    23 was less than a mile from the noise source?
    24 A. Yes.
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    1 Q. Isn't it true that the complainant was
    2 less than a half mile from the noise source?
    3 A. Yes.
    4 Q. And isn't it true that the complainant was
    5 less than a quarter of a mile from the noise
    6 source?
    7 A. No.
    8 Q. So between a quarter mile and a half a
    9 mile?
    10 A. Yes.
    11 Q. One second.
    12 Are you aware, Mr. Zack, that people
    13 in the vicinity of the receiving source are able to
    14 speak on the telephone without interference from
    15 the noise source?
    16 A. No.
    17 Q. Are you aware that employees at OMC are
    18 able to speak on the telephone without interference
    19 from the noise source?
    20 A. No.
    21 Q. Are you aware that many of the employees
    22 at OMC are within 100 yards of the noise source?
    23 A. No.
    24 Q. And are you aware that all 1300 employees
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    1 at OMC are within a quarter of a mile of the noise
    2 source?
    3 A. No.
    4 Q. And are you aware that all 1300 of those
    5 employees are able to speak on the phone without
    6 interference from the noise source?
    7 A. No.
    8 MS. SMETANA: I have no further
    9 questions.
    10 HEARING OFFICER KNITTLE: Ms. Aavang?
    11 MS. AAVANG: Just one or two.
    12 C R O S S - E X A M I N A T I O N
    13 by Ms. Aavang
    14 Q. Mr. Zack, you testified earlier that
    15 important in your considerations are factors
    16 including wind and, to some extent, the timing of
    17 when the measurements are taken.
    18 Wouldn't the location of, let's say,
    19 other natural or man-made barriers between the
    20 receiving entity, would that have some effect in
    21 your calculations also?
    22 A. To answer your question, we're talking
    23 about a relatively large impulsive noise that is
    24 traveling approximately a mile. It would take
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    1 very, very large barriers such as, say, a cliff,
    2 perhaps, 100 feet in height, large barriers that
    3 would have some effect on the noise, but, again,
    4 normally in a situation like that, different
    5 elevations, let's say the noise source is at one
    6 elevation and the receiver is at another, would not
    7 have very much of an effect.
    8 Again, it would take extremely large
    9 objects in the neighborhood of 100 feet or more by
    10 one dimension in order to have a very significant
    11 effect, and they would have to be located either
    12 extremely close to the noise source or extremely
    13 close to the receiver.
    14 Q. Would -- you've indicated -- such as a
    15 bluff?
    16 A. A bluff is a possibility and depending
    17 upon where the bluff is located in relation to the
    18 noise source and the receiver, it could either
    19 reduce the noise or it could just as easily amplify
    20 the noise.
    21 Q. And how would a bluff amplify the noise?
    22 A. If the noise source was located at the
    23 base of the bluff and the receiver was located
    24 directly away from the face, the bluff would act as
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    1 a band shell and tend to direct and focus the noise
    2 out in the direction the bluff is facing.
    3 Q. And what if I give you the example of the
    4 source being at the base of the bluff and the
    5 receiver being at the top of the bluff back from
    6 the edge of the bluff?
    7 A. That would tend to reduce it.
    8 MS. AAVANG: Thank you. No further
    9 questions.
    10 HEARING OFFICER KNITTLE: Mr. Sweda, do
    11 you have any redirect?
    12 MR. SWEDA: No.
    13 HEARING OFFICER KNITTLE: Thank you, sir.
    14 You can step down. It's five to 12:00. You've got
    15 about two hours. You've got about two hours. You
    16 think --
    17 MS. SMETANA: Is there -- we have one
    18 witness who needs to catch a plane. She's going
    19 out of town for work. If there's any way --
    20 HEARING OFFICER KNITTLE: When is your
    21 flight, ma'am?
    22 MS. BONGIOVANNI: 4:15 at O'Hare.
    23 HEARING OFFICER KNITTLE: How long do you
    24 anticipate her being?
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    1 MS. SMETANA: A half hour or less.
    2 Probably less than half an hour.
    3 HEARING OFFICER KNITTLE: Let's squeeze
    4 her in then.
    5 MS. BONGIOVANNI: Thank you.
    6 HEARING OFFICER KNITTLE: Then we
    7 get to eat.
    8 MS. SMETANA: Can I just have a
    9 minute?
    10 HEARING OFFICER KNITTLE: Sure.
    11 Let's go off for a second.
    12 (Discussion had
    13 off the record.)
    14 MS. SMETANA: OMC calls as its next
    15 witness Lisa Bongiovanni. Could you please swear
    16 the witness?
    17 (Witness sworn.)
    18 WHEREUPON:
    19 L I S A B O N G I O V A N N I,
    20 called as a witness herein, having been first
    21 duly sworn, deposeth and saith as follows:
    22 D I R E C T E X A M I N A T I O N
    23 by Ms. Smetana
    24 Q. Please state your full name for the
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    1 record?
    2 A. Lisa Ann Bongiovanni.
    3 Q. And could you spell your last name?
    4 A. B, as in boy, o-n, G, as in George, i o, V
    5 as in Victor, a-n-n-i.
    6 Q. And what is education?
    7 A. I have a bachelor's degree in
    8 environmental engineering from Northwestern
    9 University.
    10 Q. Where are you presently employed?
    11 A. Outboard Marine Corporation.
    12 Q. And for how long have you been with OMC?
    13 A. About a year and nine months.
    14 Q. When did you begin at OMC?
    15 A. July of 1997.
    16 Q. And in what department do you presently
    17 work?
    18 A. The product development center.
    19 Q. And how long have you been in the product
    20 development?
    21 A. Since the beginning of January 1999.
    22 Q. And prior to that, what department were
    23 you with?
    24 A. The corporate environmental health and
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    1 safety department.
    2 Q. And what is the -- can you describe the
    3 corporate environmental health and safety
    4 department?
    5 A. That includes a corporate environmental
    6 group which assists facilities with environmental
    7 work and any remedial work that the company does
    8 and also the health and safety department which
    9 takes on those responsibilities.
    10 Q. What was your job title when you were
    11 within the environmental health and safety
    12 department?
    13 A. Environmental control analyst.
    14 Q. And what were your responsibilities?
    15 A. I managed projects that dealt with
    16 facility regulation issues and permits to some
    17 remedial projects and also included the gull
    18 relocation project.
    19 Q. What is the gull relocation project?
    20 A. The gull relocation project was OMC's
    21 effort to move the gulls from the coke plant site.
    22 Q. Was there anyone else assisting you with
    23 the gull relocation project?
    24 A. Mark Willis of the corporate environmental
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    1 health and safety during the time that I was
    2 working on the project.
    3 Q. And when did you begin working on the gull
    4 relocation project?
    5 A. I began working on the project in
    6 September of 1997.
    7 Q. In September 1997, what was the status of
    8 the gull relocation project?
    9 A. At that time, we were investigating
    10 options and basically solidifying some plans to
    11 initiate in March of 1998.
    12 Q. Why did you have the gull relocation
    13 project?
    14 A. The project manager there previously,
    15 Tricia Sutton, was changing positions within OMC.
    16 Q. What was the reason that OMC had a gull
    17 relocation project?
    18 A. It was due to employee complaints.
    19 Q. And employee complaints about what?
    20 A. Bird droppings, odor. OMC was concerned
    21 about health issues.
    22 Q. And how many gulls were there in 1997,
    23 approximately?
    24 A. Approximately, 5,000.
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    1 Q. And during what time of year were these
    2 gulls presents?
    3 A. Typically, from March through August.
    4 Q. Where on OMC's property were they located
    5 in 1997?
    6 A. In 1997, they were located on the coke
    7 plant site.
    8 Q. I'm going to show the witness what's been
    9 marked as OMC Exhibit No. 2. If you could just
    10 initial and identify -- the exhibit has already
    11 been marked with a red line indicating gull colony
    12 from the prior witness.
    13 If you can just mark the gull area,
    14 the coke plant area and initial it.
    15 A. (Witness complied.)
    16 MS. SMETANA: The witness is marking the
    17 area with a blue pen so we know. Thanks.
    18 BY MS. SMETANA:
    19 Q. And can you describe the coke plant area,
    20 what it looks like?
    21 A. It's approximately 30 acres of open
    22 field. It contains grasses, some shrubbery.
    23 There's a soil stockpile and a designated soil
    24 stockpile.
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    1 Q. Where is there soil stockpiles on the
    2 site?
    3 A. Previous to my employment, OMC did some
    4 drudging in the harbor, and those piles are from
    5 that drudging.
    6 Q. Is there anything else, the character
    7 about the site, why is it called the coke plant
    8 site?
    9 A. It's a contaminated site, and that's how
    10 we refer to it. There previously was manufactured
    11 gas at the coke plant site or the facility.
    12 Q. Is the coke plant site fenced?
    13 A. Yes, it is.
    14 Q. What -- on what sides is it fenced?
    15 A. It's fenced on the northeast and south
    16 sides.
    17 MS. SMETANA: I'm going to have the
    18 witness mark Exhibit 2, again, with a yellow pen
    19 indicating the fence around the coke plant site.
    20 HEARING OFFICER KNITTLE: Is she tracing
    21 the perimeter with a yellow highlighter?
    22 MS. AAVANG: Yes.
    23 MS. SMETANA: Just the perimeter where the
    24 fence is.
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    1 HEARING OFFICER KNITTLE: Okay.
    2 BY THE WITNESS:
    3 A. (Witness complied.)
    4 BY MS. SMETANA:
    5 Q. On what side is there not a fence?
    6 A. On the west side.
    7 Q. And what is on the west side, along the
    8 west side?
    9 A. The Waukegan harbor.
    10 Q. What kind of fence is it?
    11 A. Chain link fence.
    12 Q. Do you know why the fence is there?
    13 A. Because it's a contaminated site.
    14 Q. You had -- where is the sand pile you
    15 referred to on the site?
    16 A. It's adjacent to the harbor on the west
    17 side of the site.
    18 MS. SMETANA: Again, I'm going to have the
    19 witness identify the sand pile on the site with a
    20 blue pen.
    21 BY MS. SMETANA:
    22 Q. If you'd just write sand on the sand
    23 pile.
    24 A. (Witness complied.)
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    1 Q. In 1997, where on the coke plant site were
    2 the gulls located?
    3 A. They were located directly east of the
    4 sand pile.
    5 Q. And prior to 1997, where were the gulls
    6 located?
    7 A. They were located on top of the sand pile.
    8 Q. And what was the -- what was the gulls'
    9 activity in this coke plant area?
    10 A. It's their nesting area.
    11 Q. And can you describe how big the sand pile
    12 is?
    13 A. It's probably about 100 to 200 yards long.
    14 Q. And is there any vegetation on the sand
    15 pile?
    16 A. Yes, there's some vegetation.
    17 Q. In 1996, was there any vegetation on the
    18 sand pile?
    19 A. No, there was not.
    20 Q. And what about 1997?
    21 A. Yes. I believe OMC had put a cover over
    22 it.
    23 Q. And do you know why?
    24 A. It was one way of getting rid of the sea
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    1 gulls is putting a vegetative cover on and make it
    2 hard for them to land.
    3 Q. Can you describe the birds' activity in
    4 the period that they're on the site?
    5 A. It's their nesting area. Basically, when
    6 they first come, they fly in and out of the site
    7 trying to set up territories and build nests, and
    8 then later on they lay eggs and sit on the eggs and
    9 then take care of the young.
    10 Q. When did the gulls first come to the coke
    11 plant site?
    12 A. The early '90s.
    13 Q. And when did the -- did the gull
    14 population change on the coke plant site?
    15 A. It has grown throughout the time.
    16 Q. When was the -- when did OMC first address
    17 the growing gull population?
    18 A. In 1996.
    19 Q. Do you know what was done at that time?
    20 A. They began researching and looking into
    21 different ways to control the gulls and also put
    22 distress calls on the roofs of some of the
    23 buildings.
    24 Q. And was anything done on the coke plant
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    1 site?
    2 A. Not to my knowledge.
    3 Q. After 1996, do you know what OMC did next?
    4 A. In the spring of 1997, they put wire grids
    5 on the sand pile and the designated soil stockpile.
    6 Q. And what were the wire grids intended to
    7 do?
    8 A. Keep the birds from landing.
    9 Q. And how did they do that?
    10 A. They're -- the wires are placed about, I
    11 believe, a gull's wingspan which prevents them from
    12 being able to land.
    13 Q. And where did you say that grid was put
    14 up?
    15 A. On the sand pile and on the designated
    16 soil stockpile.
    17 Q. And why was it put on those areas?
    18 A. Those were the two primary locations of
    19 the gulls at that time.
    20 Q. And was the gridding effective?
    21 A. Yes, it was.
    22 Q. And how was it effective?
    23 A. It moved the birds off of those two areas.
    24 Q. And did OMC consider gridding the entire
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    1 area?
    2 A. Once the birds moved on to a different
    3 part of the site, they did consider it, but due to
    4 costs and maintenance --
    5 Q. Is there any other reason not to grid the
    6 area?
    7 A. There are some access issues. There's
    8 monthly monitoring that needs to be done on the
    9 designated soil stockpile.
    10 Q. Why do you have to do monthly monitoring?
    11 A. It's part of a consent decree from the
    12 USEPA.
    13 Q. What direction did the gulls move as a
    14 result of the gridding of the sand pile?
    15 A. They moved east of the sand pile into the
    16 flat land.
    17 Q. And what direction in terms of the
    18 building was that that they were moving towards?
    19 A. They were moving closer to the IT
    20 building.
    21 Q. What else did OMC do to address the gulls?
    22 A. In 1997?
    23 Q. Yes?
    24 A. Throughout that year, they continued to
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    1 research different ideas. They contacted
    2 Dr. Southern and also used a propane cannon for a
    3 couple of days to test that to see how well it
    4 worked.
    5 Q. When was Dr. Southern contacted?
    6 A. I wasn't involved at that time. I'm not
    7 exactly sure. It should have been early summer of
    8 that year.
    9 Q. Are you familiar with Dr. Southern and Dr.
    10 Southern's work?
    11 A. Yes, I am. He gave a report to OMC in
    12 July of 1997.
    13 Q. How are you familiar with that? How are
    14 you familiar with that report?
    15 A. I've read the report and used it as a
    16 basis for our relocation project.
    17 Q. When you started working on the gull
    18 project in September of '97, what did you do in
    19 your first few months to address the issue?
    20 A. In my first few months, I worked with
    21 Tricia. She put together a cost estimate for the
    22 gull relocation plan and also to put together an
    23 actual plan. That was done in the first -- like
    24 September, October '97.
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    1 Q. Did you talk to anyone else besides
    2 Dr. Southern about the issue of the gulls on the
    3 site?
    4 A. OMC did contact several of the agencies,
    5 including the U.S. Department of Agriculture,
    6 Animal Damage Control, and U.S. Fish and Wildlife.
    7 Q. Did any of those departments ever visit
    8 the site?
    9 A. The Animal Damage Control did.
    10 Q. When was that?
    11 A. In the summer of 1997.
    12 Q. And did they recommend anything?
    13 A. They recommended that we apply for a U.S.
    14 Fish and Wildlife permit to take some of the sea
    15 gulls.
    16 Q. What does it mean to take some of the sea
    17 gulls?
    18 A. Shoot them.
    19 Q. Did OMC ever apply for this kind of
    20 permit?
    21 A. Yes, we did.
    22 Q. And who completed the permit application?
    23 A. I did.
    24 Q. What was requested in the permit
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    1 application?
    2 A. We requested the ability to shoot some of
    3 the gulls, to take some of the -- destroy the nests
    4 and eggs in conjunction with our non-lethal
    5 measures.
    6 Q. What kinds of things did the permit
    7 application ask for?
    8 A. It asked for what other measures we were
    9 taking, what the health risks were, as well as what
    10 damages and costs have been incurred.
    11 Q. And how did the permit application
    12 describe the problem of the gulls?
    13 A. We described it as far as employee
    14 complaints dealing about odor, bird droppings on
    15 the cars and parking lots, bird droppings on
    16 people. It also talked about the health risk of
    17 histoplasmosis due to the birds nesting there for a
    18 long time. It also dealt with somewhat having
    19 carcasses in the parking lots and the birds and
    20 whatnot running around the parking lots.
    21 (OMC Exhibit No. 6 marked
    22 for identification,
    23 4-20-99.)
    24 MS. SMETANA: I'm going to show the
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    1 witness what I've marked Exhibit 6 and a copy was
    2 given to Mr. Sweda of Exhibit 6 for his review.
    3 BY MS. SMETANA:
    4 Q. Can you identify Exhibit 6?
    5 A. This is the application that I prepared
    6 for the U.S. Fish and Wildlife.
    7 Q. And when did you prepare that application?
    8 A. In January of 1998.
    9 Q. And does this application contain what
    10 your prior testimony just stated?
    11 A. Yes.
    12 Q. Did the application request anything
    13 specific as to the taking of gulls?
    14 A. I don't remember specifically.
    15 Q. Would you like to see it?
    16 A. It's been a while. If you could clarify
    17 the question.
    18 Q. Did the application state -- ask for a
    19 certain number of gulls to be taken --
    20 A. No, it did not.
    21 Q. -- anything specific? Okay.
    22 Did the U.S. Fish and Wildlife ever
    23 issue OMC a permit?
    24 A. Yes, it did.
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    1 Q. And when did it issue the permit?
    2 A. In March of 1998.
    3 Q. And what did this permit provide?
    4 A. It allowed us to shoot 100 ring-billed
    5 gulls and up to 20 herring gulls and also to take
    6 or to destroy 500 nests and eggs in conjunction
    7 with our non-lethal measures.
    8 (OMC Exhibit No. 7 marked
    9 for identification,
    10 4-20-99.)
    11 MS. SMETANA: I'm going to show the
    12 witness what's been marked OMC Exhibit 7. Also, at
    13 this time, I'd like to move to admit OMC Exhibit 6
    14 into evidence. That's the permit application.
    15 HEARING OFFICER KNITTLE: Mr. Sweda?
    16 MR. SWEDA: No problem.
    17 HEARING OFFICER KNITTLE: That's
    18 admitted.
    19 BY MS. SMETANA:
    20 Q. Could you please identify what's been
    21 marked OMC Exhibit No. 7?
    22 A. This is OMC's Fish and Wildlife permit.
    23 Q. And is this the permit that you've just
    24 testified to?
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    1 A. Yes.
    2 Q. And does it -- can you tell on the permit
    3 how many birds were authorized to be taken?
    4 A. One hundred ring-billed gulls and ten
    5 herring gulls.
    6 Q. And did it authorize anything else?
    7 A. The destroying of up to 500 ring-billed
    8 and ten herring gull nests.
    9 Q. Was this in conjunction to anything?
    10 A. The use of pyrotechnics.
    11 Q. Did OMC ever take any birds under this
    12 permit?
    13 A. Yes.
    14 Q. How many did it take?
    15 A. Twenty.
    16 Q. And when was this?
    17 A. May 4th, 1998.
    18 Q. And why was this done?
    19 A. To reinforce the propane cannon and gun
    20 fire pyrotechnics.
    21 Q. During the time that you submitted the
    22 permit application in January '98, what other
    23 efforts were taken on as part of the gull -- for
    24 the gull -- the 1998 gull season?
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    1 A. We began planning for using the propane
    2 cannons and additional pyrotechnics, and that
    3 included preparing a scope of work that was
    4 submitted to three consultants to assist us.
    5 Q. Generally, what were the recommendations
    6 of Dr. Southern?
    7 A. The recommendations were to use a minimum
    8 of six cannons located throughout the site to scare
    9 away the birds along with using the projectile
    10 pyrotechnics.
    11 Q. Did Dr. Southern raise any alternatives?
    12 A. He did raise using the wire grid as well
    13 as the vegetation option.
    14 Q. Why was gridding alone not sufficient?
    15 A. Well, that alone, as before, it's a cost
    16 issue and a maintenance issue for OMC as well as
    17 being able to access the site.
    18 Q. Were you involved in selecting the remedy
    19 that was used based on Dr. Southern's
    20 recommendations?
    21 A. Yes.
    22 Q. And who put together the plan to implement
    23 the gull project?
    24 A. I did.
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    1 Q. What did that plan state?
    2 A. It stated starting with two propane
    3 cannons and purchasing pyrotechnics to help
    4 reinforce those and then to increase or decrease as
    5 we needed.
    6 Q. And did OMC, in fact, start with two
    7 propane cannons?
    8 A. Yes, we did.
    9 Q. And when was that?
    10 A. That was the end of March 1998.
    11 Q. Who implemented the gull relocation
    12 project?
    13 A. We hired ENCAP to assist us.
    14 Q. Who is ENCAP?
    15 A. ENCAP is a wildlife management consulting
    16 company.
    17 Q. Do you know approximately how much it cost
    18 to hire ENCAP?
    19 A. It was about $90 per hour.
    20 Q. And do you know about how many hours you
    21 used them for, if you know?
    22 A. I don't know specifically.
    23 Q. When was it that the two cannons were
    24 first installed?
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    1 A. It was the end of March 1998.
    2 Q. And where were these cannons located?
    3 A. They were located -- both of them were
    4 located east of the sand pile; one at the foot of
    5 the sand pile and then one probably about 100 yards
    6 away.
    7 Q. Would you be able to identify these if I
    8 showed you them?
    9 A. Yes.
    10 MS. SMETANA: I'm going to, again, show
    11 the witness what's been marked OMC Exhibit 2.
    12 BY MS. SMETANA:
    13 Q. Could you please identify where the two
    14 cannons were first located in 1998 using an X?
    15 A. (Witness complied.)
    16 HEARING OFFICER KNITTLE: Excuse me. Are
    17 there any other Xs on that?
    18 MS. SMETANA: There are no other Xs on the
    19 map.
    20 HEARING OFFICER KNITTLE: Okay.
    21 BY MS. SMETANA:
    22 Q. Are you familiar with how these cannons
    23 operate generally?
    24 A. Yes.
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    1 Q. Can you generally explain how the cannons
    2 operate?
    3 A. They're connected to a propane canister,
    4 and when you open up the propane canister, the
    5 propane goes into the cannon, which then fills up
    6 with bladder. When the bladder reaches the full
    7 point, it hits the trigger which then ignites the
    8 propane which makes the loud bang.
    9 Q. Is there anything coming out of the
    10 cannon?
    11 A. No.
    12 Q. And about how small are the cannons?
    13 A. The size?
    14 Q. Uh-huh.
    15 A. No bigger than this microphone
    16 (indicating).
    17 Q. Can you just say approximately how many
    18 feet?
    19 A. About two feet tall.
    20 Q. And how long?
    21 A. Probably about the same, two feet.
    22 Q. How frequently do the cannons go off?
    23 A. Anywhere from one every minute to once
    24 every hour.
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    1 Q. And who determines their frequency?
    2 A. OMC.
    3 Q. Are you able to control the frequency?
    4 A. Yes. There is a timer on the cannons.
    5 Q. Was anything in addition used besides the
    6 cannons in 1997, the beginning?
    7 A. In 1997, the beginning, within a few weeks
    8 after starting using the cannons, we also installed
    9 additional wire grid.
    10 Q. And where was that installed?
    11 A. To the west of the sand pile.
    12 Q. When you say the west of the sand pile,
    13 towards what direction?
    14 A. Towards the north.
    15 Q. Where exactly were the two cannons located
    16 again? If you could just repeat where you said,
    17 the initial two cannons.
    18 A. They were both located east of the sand
    19 pile, one at the foot of the sand pile, and one
    20 about 100 yards away.
    21 Q. Was the one at the foot of the sand pile
    22 moved?
    23 A. They were both moved during the year.
    24 Q. Where were they moved to?
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    1 A. One was moved north a little bit, and then
    2 the one -- the one at the foot of the sand pile I
    3 can't recall at this time.
    4 Q. When was it that OMC took gulls under its
    5 U.S. Fish and Wildlife permit?
    6 A. On May 4th, 1998.
    7 Q. Again, again, how many gulls were taken?
    8 A. Twenty.
    9 Q. And how many were you permitted to take?
    10 A. One hundred.
    11 Q. Are you aware of anyone else in the
    12 vicinity that used cannons or pyrotechnics in 1998?
    13 A. Yes.
    14 Q. Who?
    15 A. The waterworks facility.
    16 Q. And do you know where their cannons were
    17 placed?
    18 A. Not specifically, no.
    19 Q. And where is the waterworks facility in
    20 relation to OMC?
    21 A. It is south of our plant one facility.
    22 Q. Were the cannons and pyrotechnics
    23 effective in what you set out for them to do?
    24 A. Yes, they were.
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    1 Q. How were they effective?
    2 A. They prevented the gulls from nesting on
    3 the site.
    4 Q. And how did you determine their
    5 effectiveness?
    6 A. We had very few nests that were even
    7 built, and by the middle of June, the birds were no
    8 longer returning to the site.
    9 Q. In 1998 at any time, did OMC ever reduce
    10 the number of cannons it was using?
    11 A. Yes, it did.
    12 Q. And when was that, the date?
    13 A. It was early May.
    14 Q. Did OMC ever reduce the hours during the
    15 day in which it was operating cannons?
    16 A. Yes, it did.
    17 Q. And when was that?
    18 A. That was at the same time we reduced the
    19 number of cannons.
    20 Q. And for how long into 1998 did OMC
    21 continuing using the cannons?
    22 A. Through the beginning of June.
    23 Q. And why did OMC turn the cannons off at
    24 that point?
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    1 A. The birds were no longer returning to the
    2 site and were not nesting on the site.
    3 Q. After June of 1998, what was your
    4 involvement in the project?
    5 A. I assisted in preparing an annual report
    6 to U.S. Fish and Wildlife and assisted in applying
    7 for a renewal of our permit.
    8 Q. And was the -- when you say renewal of the
    9 permit, which permit?
    10 A. The U.S. Fish and Wildlife animal
    11 deprivation permit.
    12 Q. And are you aware if that permit was ever
    13 granted?
    14 A. Yes, it was.
    15 Q. For what length of time does the permit
    16 cover?
    17 A. One year.
    18 Q. And do you know when the permit was
    19 granted?
    20 A. In March of 1998.
    21 Q. And for what year was that permit? I'm
    22 talking the renewal permit.
    23 A. It will be for 1999.
    24 Q. And what did the renewal permit state?
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    1 A. I believe the same as the previous one,
    2 which was the ability to take 100 gulls and destroy
    3 up to 500 nests and eggs.
    4 Q. In conjunction with any other --
    5 A. In conjunction with the non-lethal.
    6 Q. And when, again, was this permit issued?
    7 A. In March of 1999.
    8 MS. SMETANA: I am going to show the
    9 witness what we'll mark OMC Exhibit 8.
    10 (OMC Exhibit No. 8 marked
    11 for identification,
    12 4-20-99.)
    13 BY MS. SMETANA:
    14 Q. Can you please identify what's been marked
    15 OMC Exhibit 8?
    16 A. This is the animal deprivation permit
    17 issued to OMC in March of 1999.
    18 Q. Is this the permit which you were just
    19 testifying to?
    20 A. Yes.
    21 MS. SMETANA: I'm going to move that OMC
    22 Exhibit No. 8 and also No. 7 be admitted into
    23 evidence.
    24 HEARING OFFICER KNITTLE: Mr. Sweda, do
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    1 you have an objection to OMC No. 7, which is the
    2 U.S. Fish and Wildlife permit? That's the previous
    3 one. That's not the one you're looking at now.
    4 MR. SWEDA: No.
    5 MS. SMETANA: I also move to admit Exhibit
    6 No. 8.
    7 HEARING OFFICER KNITTLE: I understand.
    8 I'm doing it one by one. Okay. No. 7 is admitted.
    9 Mr. Sweda, do you have an objection
    10 to OMC No. 8, which is a permit issued in 1999.
    11 What is the permit for?
    12 MS. SMETANA: It's a -- the witness
    13 testified that it's a renewal of the 1998 permit
    14 and provides for essentially the same thing that
    15 the '98 permit provided for.
    16 HEARING OFFICER KNITTLE: It's also U.S.
    17 Fish and Wildlife?
    18 MS. SMETANA: Yes.
    19 HEARING OFFICER KNITTLE: Mr. Sweda, do
    20 you have an objection to OMC No. 8 being admitted?
    21 MR. SWEDA: No.
    22 HEARING OFFICER KNITTLE: Both of those
    23 are admitted.
    24
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    1 BY MS. SMETANA:
    2 Q. When OMC reduced the number of cannons
    3 being used, how many were being used prior to the
    4 reduction?
    5 A. Three cannons.
    6 Q. And when was the third cannon added?
    7 A. It was purchased in the middle of
    8 April 1998.
    9 Q. And it was used beginning when?
    10 A. Around within a week after its purchase,
    11 so around the same time.
    12 Q. And so in May 1998, what exactly was the
    13 reduction?
    14 A. We turned off the additional propane
    15 cannon we had purchased.
    16 Q. The additional is the --
    17 A. The third.
    18 Q. The third.
    19 And so after May of 1998, how many
    20 cannons were you using?
    21 A. Two.
    22 Q. And that continued until what day?
    23 A. Until the beginning of June.
    24 Q. Are you aware of cannons being used this
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    1 year?
    2 A. Yes.
    3 Q. Are they located in similarly the same
    4 spots as last year, if you know?
    5 A. As far as I can tell.
    6 Q. And who -- are you still involved in the
    7 program this year?
    8 A. Only when they seek advice.
    9 Q. You're now in a different department?
    10 A. Yes.
    11 Q. And who has taken your position?
    12 A. Tony Montemurro.
    13 Q. Okay. Have you ever heard the cannons
    14 while at OMC's property?
    15 A. Yes.
    16 Q. Have you ever had a conversation outside
    17 while the cannons have been going on?
    18 A. Yes.
    19 Q. In what tone did you speak?
    20 A. Normal.
    21 Q. Do you work inside the building at OMC?
    22 A. Yes.
    23 Q. And do you speak on the phone?
    24 A. Yes.
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    1 Q. And has noise of the cannons ever
    2 interfered?
    3 A. No.
    4 MS. SMETANA: I have no further questions.
    5 HEARING OFFICER KNITTLE: Ms. Aavang, do
    6 you have any questions?
    7 MS. AAVANG: Nothing.
    8 HEARING OFFICER KNITTLE: Mr. Sweda, do
    9 you have a cross-examination.
    10 MR. SWEDA: Yes.
    11 HEARING OFFICER KNITTLE: You may
    12 proceed.
    13 MR. SWEDA: I'll make it short.
    14 C R O S S - E X A M I N A T I O N
    15 by Mr. Sweda
    16 Q. One question, Ms. Bongiovanni, is there
    17 any records of infection of any employees or
    18 anybody of histoplasmosis on this site?
    19 A. Not to my knowledge.
    20 MR. SWEDA: Thank you. That's all I
    21 have.
    22 HEARING OFFICER KNITTLE: Any redirect?
    23 MS. SMETANA: No.
    24 HEARING OFFICER KNITTLE: You can step
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    1 down. Let's take a half hour for lunch and meet
    2 back here at 1:00 o'clock.
    3 (Whereupon, further proceedings
    4 were adjourned pursuant to the
    5 lunch break and reconvened
    6 as follows.)
    7 MS. SMETANA: OMC calls its next witness,
    8 Daniel Hirsch?
    9 HEARING OFFICER KNITTLE: Birch or
    10 Hirsch?
    11 MS. SMETANA: Hirsch. I'm sorry. I can't
    12 hear anything. Mr. Hirsch, have a seat and the
    13 court reporter will swear you in.
    14 (Witness sworn.)
    15 WHEREUPON:
    16 D A N I E L H I R S C H,
    17 called as a witness herein, having been first
    18 duly sworn, deposeth and saith as follows:
    19 D I R E C T E X A M I N A T I O N
    20 by Ms. Smetana
    21 Q. Please state your full name for the
    22 record?
    23 A. My name is Daniel Hirsch.
    24 Q. Can you spell your last name?
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    1 A. H-i-r-s-c-h.
    2 Q. Mr. Hirsch, where do you live?
    3 A. 527 North Sheridan Road.
    4 Q. And what cross street is that
    5 approximately at Sheridan Road?
    6 A. My house is the first house south of
    7 Franklin.
    8 MS. SMETANA: I'm going to show the
    9 witness what has been marked previously as OMC
    10 Exhibit 1.
    11 BY MS. SMETANA:
    12 Q. If you could, on this map, write in your
    13 address, where it's located, and then put your
    14 initials next to it.
    15 A. Sure. (Witness complied.)
    16 Q. Would you also put your address on there
    17 too?
    18 A. Oh, sure. Sorry. Just the number?
    19 Q. The address, whatever, the number and the
    20 street name.
    21 A. Okay.
    22 MS. SMETANA: Let the record reflect the
    23 witness is writing his address and initials on the
    24 exhibit marked No. 1, which is a map of a portion
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    401
    1 of Waukegan.
    2 BY MS. SMETANA:
    3 Q. What is your education, Mr. Hirsch?
    4 A. I have a bachelor's degree in engineering
    5 from the University of Illinois from Champaign. I
    6 have a master's degree in business from the
    7 University of Chicago in Chicago. I'm a
    8 registered -- licensed professional engineer in the
    9 state of Illinois.
    10 Q. Are you currently employed?
    11 A. Yes.
    12 Q. And for whom do you work?
    13 A. I work for a company I own myself. It's
    14 Lakewise, Incorporated.
    15 Q. And what do you do?
    16 A. We design and market products.
    17 Q. Where do you work?
    18 A. I work in my home.
    19 Q. Do you have an office in your home?
    20 A. Yes.
    21 Q. And what hours of the day do you work?
    22 A. All. Roughly, 7:00 a.m. to probably 6:00
    23 p.m.
    24 Q. And do you work -- at home, do you work
    L.A. REPORTING (312) 419-9292

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    1 anywhere besides in your office?
    2 A. No.
    3 Q. How would you describe the area in which
    4 your house is located?
    5 A. It's primarily a residential area, a fair
    6 number of trees. It's not very high density. A
    7 couple of characteristics of the neighborhood are
    8 Sheridan Road is a relatively heavily traveled
    9 street. Behind my property, which extends about
    10 600 feet from Sheridan Road, there's Amstutz
    11 Highway. It looks sort of like a limited access
    12 expressway.
    13 Q. What side of Sheridan Road are you
    14 located?
    15 A. I'm on the east side of Sheridan Road.
    16 Q. Is there any industrial facilities near
    17 your --
    18 A. Directly --
    19 Q. -- house?
    20 A. Directly behind my house, in other words,
    21 due east of my house and maybe a little bit to the
    22 south National Gypsum has a plant where they -- I
    23 believe they process limestone into basically
    24 drywall.
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    1 Q. Is there any other industries in the
    2 vicinity?
    3 A. Larson's Marine has a boat yard over there
    4 to the north of the National Gypsum plant. There's
    5 also a marine terminal where they off-load
    6 limestone and they off-load portland cement.
    7 Q. Any other industries?
    8 A. Then there's Outboard Marine, of course.
    9 Q. Are you familiar with Outboard Marine?
    10 A. Only to the extent that I know where it
    11 is. I've seen its building. I've seen some of
    12 their test facilities, and I spend a lot of time in
    13 and around there, but I don't have any connection.
    14 Q. Where is Outboard Marine in relation to
    15 your house?
    16 A. Approximately, 900 yards east, southeast.
    17 Q. And how do you know it's approximately 900
    18 yards?
    19 A. After having had some conversations about
    20 this question, I went and looked at a software
    21 program that's available on my computer and I
    22 plotted out the location of my residence and the
    23 location of the center of the site where these
    24 birds are nesting, and there's a measuring device
    L.A. REPORTING (312) 419-9292

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    1 in there, and it told me it was 900 yards.
    2 Q. Is there a train that runs through
    3 Waukegan?
    4 A. Yes, there is.
    5 Q. And where are you -- I assume there's rail
    6 tracks for that train.
    7 Where are you in relation to the rail
    8 tracks?
    9 A. The railroad was built in the 1890s
    10 through what used to be part of the particle I now
    11 live on, and it is approximately 800 feet east of
    12 my home.
    13 Q. And what does --
    14 A. So it lies -- it lies between my home and
    15 all those facilities I just described.
    16 Q. And so what direction is OMC from your
    17 home?
    18 A. East, southeast.
    19 Q. Where is Sheridan Road in relation to --
    20 are you familiar with the street North County
    21 Street?
    22 A. Yes.
    23 Q. How long have you been a resident of
    24 Waukegan?
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    1 A. I moved to Waukegan in August of 1993. So
    2 almost six years.
    3 Q. And where is North County Street in
    4 relation to Sheridan Road?
    5 A. It's one block to the west.
    6 Q. Are they on the same elevation?
    7 A. I would estimate within four or five feet,
    8 yes.
    9 Q. And is Sheridan Road on the same elevation
    10 as the lakefront front?
    11 A. No, it's not.
    12 Q. What is the difference, if you know?
    13 A. On my property, the difference in
    14 elevation from the Sheridan Road side to the east
    15 end of the lot is approximately a 40 foot
    16 vertical. In other words, the back end of my
    17 property is approximately 40 feet lower than the
    18 front end of my property.
    19 Q. And the back of your property ends where?
    20 A. Well, 700 yards from OMC.
    21 Q. What's the boundaries back there?
    22 A. Basically, it's the right of way for the
    23 Amstutz.
    24 Q. And is your property fenced?
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    406
    1 A. The back is.
    2 Q. And what type of fence?
    3 A. It's a galvanized fence that is maintained
    4 by the state to isolate the Amstutz.
    5 Q. About how high is that fence?
    6 A. Five feet.
    7 Q. Do you have any outdoor space in your
    8 house -- outside your house?
    9 A. We have a fairly large deck, and we also
    10 have built terraces in the backyard that we tend to
    11 entertain on. We also have a hammock in the
    12 backyard, and we also have a little gazebo that is
    13 about 150 feet from the eastern border of our
    14 property.
    15 Q. And where is your yard in relation to your
    16 house?
    17 A. It's to the east.
    18 Q. And how far would you say your yard is
    19 from OMC?
    20 A. The eastern edge of my property is about
    21 700 yards from OMC, and the western edge is about
    22 900 yards.
    23 Q. And where is your deck located in relation
    24 to your house?
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    407
    1 A. It's attached on the eastern side of the
    2 house.
    3 Q. Do you ever spend time in your yard?
    4 A. As much as I can.
    5 Q. During what time of the year are you
    6 outside your yard?
    7 A. I would say that we're in the yard
    8 probably every month of the year. December,
    9 January, February, March we tend to spend less time
    10 in the yard, but we're probably in the yard at
    11 least, during those months even, once or twice a
    12 week.
    13 Q. And what do you generally do when you're
    14 in the yard?
    15 A. We do everything from tobogganing to yard
    16 work to just recreation, recreate with the
    17 neighbors, play bocci ball, things like that.
    18 Q. What kind of recreation with the neighbors
    19 do you do?
    20 A. A lot of bocci ball, a lot of sitting
    21 around and telling stories, just people hanging out
    22 with people.
    23 Q. In the spring and summer, would you do
    24 these activities in the yard?
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    408
    1 A. Oh, sure.
    2 Q. Except tobogganing.
    3 Do you have a bird feeder?
    4 A. I have three bird feeders.
    5 Q. And where are they located?
    6 A. They're located at the eastern edge of my
    7 deck.
    8 Q. Are there many birds?
    9 A. Yes. We have many different birds. I've
    10 got everything from finches. I've got some
    11 woodpeckers. I've got some starlings.
    12 Unfortunately, we have some blackbirds. We have
    13 the usual sparrows, robins. I've got some red --
    14 let's see, redheaded woodpeckers. I've got I think
    15 it's called a thistle in our backyard -- not a
    16 thistle. It's a -- I forget what it's called, but
    17 we have a wide range of birds.
    18 We've seen humming birds. We've seen
    19 orioles. We've got cardinals. We've got them all.
    20 Q. Where are you when you see these birds?
    21 A. In my living -- in my family room. I can
    22 see them out of my office. I see them on the deck.
    23 Q. So when you're outside you can see the
    24 birds?
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    409
    1 A. Yes.
    2 Q. Is there any other wildlife in your yard?
    3 A. Plenty of squirrels. We have seen a lot
    4 of deer. We've even had deer come up the hill. We
    5 watched a family of three deer. I assume it was a
    6 family if that can be properly applied to deer, but
    7 they had an offspring, a fawn, and they were
    8 running around our yard from time to time.
    9 I've seen turtles. I've seen what we
    10 think were coyotes, raccoons, skunks. There's a
    11 lot of wildlife back there.
    12 Q. In the past year, have you noticed
    13 anything different about this wildlife in their
    14 behavior?
    15 A. No, not really. Last year was the year
    16 that the deer did their family affair thing.
    17 Q. Do you have a boat?
    18 A. Yes.
    19 Q. Where do you keep your boat in the summer?
    20 A. In the summertime, I'm in the south harbor
    21 of Waukegan.
    22 Q. And where is the south harbor of Waukegan?
    23 A. Basically, there is the break wall that
    24 separates the old harbor from what we call the
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    1 south harbor or the new harbor, and I am on the
    2 south side of that break wall that projects from a
    3 spot I think it's just off the extension I think of
    4 Madison.
    5 Q. And do you keep your boats somewhere else
    6 during the winter?
    7 A. In the wintertime, we pull it out of the
    8 water, and we keep it at Larson's Marine.
    9 Q. And how often do you spend time on your
    10 boat?
    11 A. In the winter, way too often, but I'm
    12 probably on the boat a total probably 25 times
    13 through the course of the winter.
    14 Q. In winter, what do you do on the boat?
    15 A. Work, work, work.
    16 Q. And where is it that you're working on the
    17 boat?
    18 A. Sometimes I'm inside the boat. Sometimes
    19 I'm on top of the boat. In the past, my boat has
    20 been stored outside. This year I decided to have
    21 the boat stored inside and, like I said, you spend
    22 a lot of time on it.
    23 Q. Is the knew harbor the only harbor in
    24 Waukegan?
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    1 A. The only one where boats are more
    2 regularly.
    3 Q. Is there another harbor?
    4 A. There's the old harbor, which is basically
    5 the one that OMC sits on.
    6 Q. And can you describe the old harbor?
    7 A. I'm not quite sure with where to start.
    8 Basically, what it consists of is a channel of
    9 varying widths with a couple of legs, one of which
    10 runs to the northwest, another which runs north and
    11 then juts east between Larson and Outboard Marine.
    12 Q. What kind of activity takes place in the
    13 old harbor?
    14 A. You occasionally have very large ships
    15 coming in and they deliver what I believe is
    16 portland cement or they deliver crushed limestone,
    17 and that's off-loaded. The crushed limestone is
    18 unloaded by using conveyor belts. The portland
    19 cement is unloaded using pneumatic conveying
    20 systems.
    21 Q. Do you ever hear these large ships?
    22 A. Yes.
    23 Q. What do they sound like?
    24 A. Well, normally you'll hear them --
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    412
    1 probably the most noticeable sound is their horn.
    2 They have to sound a warning, I believe, as they
    3 come into the harbor and they sound a warning as
    4 they exit the harbor. I do believe it's four long
    5 blasts on their horn.
    6 When they're off-loading the
    7 limestone, they have, as I've mentioned, a long
    8 conveyor, and you can hear the limestone hitting
    9 the top of the pile. You can hear the machinery
    10 that is moving the conveyor, and you can also
    11 hear -- they use a Caterpillar tractor to move the
    12 piles of limestone around, and you can hear its
    13 back-up alarm when it backs up.
    14 Q. And where are you when you hear these
    15 sounds?
    16 A. In my house, on my deck, in my yard, on
    17 my -- well, not on my boat, but generally in my
    18 area, in my home.
    19 Q. And what time of day do you generally hear
    20 these sounds?
    21 A. Oh, whenever they're unloading.
    22 Q. The daytime?
    23 A. Generally, they run their operations
    24 pretty much in the daytime. I don't think I've
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    413
    1 heard too often in non-daylight hours.
    2 Q. In the harbor, have you ever seen sea
    3 gulls?
    4 A. Yes.
    5 Q. Do you expect to see sea gulls in the
    6 harbor?
    7 A. Especially in the Waukegan Harbor, yes.
    8 Q. What do you mean by that?
    9 A. Well, I've been to a lot of different
    10 harbors in my lifetime, and I've seen sea gulls,
    11 and then in Waukegan, we have a whole other level
    12 of sea gulls. There's an incredible concentration
    13 of these birds. When I'm in the boat yard, I can
    14 hear the birds. It's the only sound you hear
    15 almost all day long when I'm working on my boat, on
    16 top of my boat, inside of my boat, when I'm working
    17 on top of my boat outdoors or indoors, inside my
    18 boot outdoors or indoors you can hear it.
    19 Q. What does it sound like?
    20 A. Well, to characterize it, it's not the
    21 sound of the calls of maybe a couple score of
    22 birds. I would liken it to the sound you hear if
    23 you go to a luncheon in a very large room where
    24 they have 1,000 or 1500 people all sitting and
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    1 talking loudly, it's that roar type of sound, only
    2 it's not human voices, it's the calling and calling
    3 of sea gulls.
    4 Q. Can you hear these birds anywhere else
    5 from besides your boat?
    6 A. I can hear them lying in my bed.
    7 Q. When did you notice the bird population
    8 got so big?
    9 A. I think it was about -- I think three
    10 years ago was the first year I noticed it was
    11 getting bad. I primarily noticed it because I had
    12 to do -- I was having a -- I was doing body work on
    13 my boat, and so I ended up spending more time on my
    14 boat, and I suddenly noticed I had a headache, and
    15 I couldn't figure out why, and it suddenly dawned
    16 on me the reason I had a headache was because after
    17 listening to the sound of those birds for eight
    18 hours, it just gave me a headache.
    19 Q. Have you ever had any other experience
    20 with the birds besides the noise?
    21 A. Well, normally in the wintertime -- well,
    22 at any time of the year, if you park your car near
    23 the Waukegan Yacht Club, which basically lies
    24 between the harbor I mentioned earlier, you know,
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    1 the new harbor and OMC, you will pick up some
    2 detritus from the sea gulls that has to be cleaned
    3 off.
    4 I have been hit with sea gull
    5 droppings. One day I was mowing my lawn and I do
    6 believe it was a sea gull that dropped the head of
    7 a fish next to me.
    8 Q. Do you know anything that is being done to
    9 relocate the sea gulls?
    10 A. I'm aware of the fact that Outboard Marine
    11 has a program right now that they're trying to get
    12 the sea gulls to move.
    13 Q. Do you know what the program involves at
    14 all?
    15 A. They are making loud noises in an effort
    16 to frighten the birds during their nesting time so
    17 the birds will go nest somewhere else.
    18 Q. Where are you when you hear these noises?
    19 A. I can hear them on my deck. I can hear
    20 them occasionally in my house. I can hear them on
    21 my boat. Almost anywhere I can hear the sea gulls
    22 I can hear the noises. I can state that.
    23 Q. During what time of the year did you hear
    24 the noise in 1998?
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    1 A. In 1998?
    2 Q. Uh-huh.
    3 A. I believe it was the second or third week
    4 in March when I noticed the noises, and I was
    5 actually at the yacht club. We were sailing in the
    6 harbor on a Sunday afternoon in the wintertime, and
    7 I commented to someone I was with about the noise,
    8 oh, yeah, that's OMC trying to chase the birds
    9 away. I remember at that time my thought was well,
    10 that's -- that will be a good thing.
    11 Q. What does the noise sound like? Can you
    12 describe it?
    13 A. It sounds like probably a small arm's
    14 discharge. Sometimes it sounds like a small
    15 firecracker in the distance.
    16 Q. Did the noise -- this noise interrupt
    17 anything you were doing?
    18 A. No.
    19 Q. When you were outside and heard this
    20 noise, were you able to speak at a normal
    21 conversational tone?
    22 A. Yes.
    23 Q. And when is it that you have occasion to
    24 speak to others outside in your yard?
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    1 A. Basically, when I'm working in my
    2 backyard, when I am entertaining and enjoying time
    3 with my family and my neighbors in the backyard.
    4 Q. And last spring and summer, did you do all
    5 those activities in your backyard?
    6 A. Yes.
    7 Q. And did you speak in normal voices?
    8 A. Yes.
    9 Q. Okay. Do you ever talk on the phone
    10 outside?
    11 A. Yes.
    12 Q. Did this noise ever interfere with, the
    13 noise from the cannons, interfere with your ability
    14 to talk on the phone?
    15 A. I never even noticed it.
    16 Q. Did the noise prevent you from doing
    17 anything outside?
    18 A. No.
    19 Q. Do you ever work outside?
    20 A. Yes.
    21 Q. Does the noise prevent you from that?
    22 A. Generally, when I'm working, I make a lot
    23 of noise, power tools and all, but it's never
    24 affected me. Now, the sea gulls have given me
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    1 headaches.
    2 Q. Were you able to hear the noise of the
    3 cannons inside your house ever?
    4 A. Yes.
    5 Q. When you're talking inside the house, did
    6 anything interfere with that?
    7 A. No.
    8 Q. When you are watching television in your
    9 house, did anything interfere with that?
    10 A. No.
    11 Q. When you're listening to the radio, did
    12 anything interfere with that?
    13 A. Normally, if I'm in the house, the only
    14 time I can hear these sounds are when nothing else
    15 is making noise. So if I'm listening to the radio,
    16 if I'm watching TV, if I'm having a conversation
    17 with someone, the sound of the discharges at OMC
    18 basically are lost.
    19 Q. Has the cannon noise ever made you jump?
    20 A. No.
    21 Q. What other noises do you hear from your
    22 house aside from the cannon noise which you've
    23 mentioned?
    24 A. Well, besides the sea gulls, I hear --
    L.A. REPORTING (312) 419-9292

    419
    1 which probably is the most prominent sound I hear,
    2 I hear a lot of sound from the railroad. I hear a
    3 lot of highway noise from the Amstutz. The
    4 railroad is probably the loudest. When these guys
    5 are shifting their -- when they're taking up the
    6 slack from the trains or whether they're doing some
    7 switching, that's very loud. The first Tuesday of
    8 every month they sound the civil defense siren, and
    9 when that goes off, you cannot even talk.
    10 Q. How would you compare all those noises to
    11 the noise from the cannons?
    12 A. Those are considerably louder and they're
    13 more disruptive.
    14 Q. Do you know Mr. Sweda, the complainant in
    15 this matter?
    16 A. The only way I know Mr. Sweda is he called
    17 me up last November on the phone one day.
    18 Q. Prior to that, had you ever spoken to him?
    19 A. I did not know him.
    20 Q. And why did he call you?
    21 A. Well, at the time, he called me up and
    22 asked me if the sound of the cannons bothered me.
    23 Q. Did you get involved in any conversation?
    24 What did you tell him?
    L.A. REPORTING (312) 419-9292

    420
    1 A. Well, I asked him -- I said no. Why? And
    2 if I recall, he said well, he thought it was --
    3 Q. Just testify what you said.
    4 A. Well, okay. I told him no, that it did
    5 not bother me, and I thought it was a good thing
    6 because it was intended to reduce the noise from
    7 the sea gulls.
    8 MS. SMETANA: I have no further questions
    9 of this witness.
    10 HEARING OFFICER KNITTLE: Is Ms. Aavang
    11 coming back?
    12 MS. AAVANG: I have no questions. Thank
    13 you.
    14 HEARING OFFICER KNITTLE: Okay. Mr. Sweda,
    15 do you have a cross-examination.
    16 MR. SWEDA: Yes. I have a couple
    17 questions
    18 C R O S S - E X A M I N A T I O N
    19 by Mr. Sweda
    20 Q. Are you employed by either the city in any
    21 way? You're an independent businessman, I assume.
    22 Are you employed -- do you have any --
    23 MS. SMETANA: Wait. Can you answer yes or
    24 no? I'm sorry.
    L.A. REPORTING (312) 419-9292

    421
    1 BY THE WITNESS:
    2 A. I have no commercial relationship of any
    3 kind with the city other than I pay taxes.
    4 BY MR. SWEDA:
    5 Q. What about Outboard Marine Corporation?
    6 A. The only contact of any kind I've ever had
    7 with Outboard Marine is they transferred a
    8 neighbor, who was a friend of mine, to Atlanta, but
    9 I have no commercial relationship whatsoever with
    10 them. I don't even use their products.
    11 Q. Do you have any -- do you serve on any
    12 boards, commissions of either OMC voluntarily as a
    13 citizen or anything else as to OMC or the City of
    14 Waukegan?
    15 A. The only thing I do for the City of
    16 Waukegan is vote.
    17 MR. SWEDA: Okay. Thank you. That's all.
    18 HEARING OFFICER KNITTLE: Redirect?
    19 MS. SMETANA: No, nothing.
    20 HEARING OFFICER KNITTLE: I'm going to
    21 assume Ms. Aavang does not want a redirect since
    22 she's not here. You can step down, sir.
    23 Do you have another witness?
    24 MS. SMETANA: Yes, we do.
    L.A. REPORTING (312) 419-9292

    422
    1 HEARING OFFICER KNITTLE: You can call
    2 your next OMC witness.
    3 MS. SMETANA: OMC, as its next witness,
    4 will call Jerry Larson.
    5 HEARING OFFICER KNITTLE: Mr. Larson, have
    6 a seat, please.
    7 THE WITNESS: Thank you.
    8 HEARING OFFICER KNITTLE: Would you swear
    9 him in?
    10 (Witness sworn.)
    11 WHEREUPON:
    12 G E R A L D L A R S O N,
    13 called as a witness herein, having been first
    14 duly sworn, deposeth and saith as follows:
    15 D I R E C T E X A M I N A T I O N
    16 by Ms. Smetana
    17 Q. Mr. Larson, could you please state your
    18 full name for the record?
    19 A. My name is Gerald Larson.
    20 Q. And where do you work?
    21 A. I'm the president of Larson Marine Service
    22 in Waukegan.
    23 Q. Does your family own that business?
    24 A. Yes.
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    423
    1 Q. For how long have they owned that
    2 business?
    3 A. It's been in the family for over 60 years.
    4 Q. And what kind of business is Larson
    5 Marine?
    6 A. We are a boat dealer and somewhat similar
    7 to a car dealer in a boat business. We sell and
    8 service boats. We winter-store boats. We repair
    9 boats primarily.
    10 Q. About how many boats are stored at your
    11 facility?
    12 A. We have over 700 in the wintertime.
    13 Q. Are these boats stored outside?
    14 A. About 60 percent are outside and 40
    15 percent inside.
    16 Q. How many employees do you have?
    17 A. Approximately, 50.
    18 Q. And do your employees work outside?
    19 A. At this time of year, a large number do.
    20 Q. And what time of the year do they work
    21 outside?
    22 A. Starting in March through -- basically
    23 through November.
    24 Q. Where is Larson Marine located in
    L.A. REPORTING (312) 419-9292

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    1 Waukegan?
    2 A. We're at the very north end of the north
    3 harbor or what's referred to as the old harbor on
    4 Sea-Horse Drive.
    5 Q. And where is this in relationship to --
    6 how about this. Are you familiar with the OMC
    7 facility?
    8 A. Yes.
    9 Q. Where is Larson Marine in relation to the
    10 OMC facility?
    11 A. We are directly north of the facility
    12 that's on the harbor.
    13 MS. SMETANA: I am going to -- I'm going
    14 to first show the witness what's been marked as
    15 Exhibit 2.
    16 BY MS. SMETANA:
    17 Q. Are you able to identify on this map where
    18 Larson Marine is located? It's kind of -- it's
    19 upside down. This is north going that way
    20 (indicating).
    21 A. Okay. We're located -- let's see. We're
    22 right over here.
    23 Q. And can you draw a circle where Larson
    24 Marine is located and maybe write Larson on it so
    L.A. REPORTING (312) 419-9292

    425
    1 we know?
    2 A. (Indicating).
    3 Q. The witness is indicating on Exhibit 2 the
    4 location of Larson Marine?
    5 HEARING OFFICER KNITTLE: Can I ask him,
    6 for the record, to explain exactly where that is.
    7 MS. SMETANA: Oh. I think he already did,
    8 but can you again explain --
    9 HEARING OFFICER KNITTLE: He said it was
    10 right here.
    11 MS. SMETANA: Oh.
    12 BY MS. SMETANA:
    13 Q. Can you explain where Larson Marine is
    14 located in relation to the Waukegan Harbor?
    15 A. Well, we're at the very north end of
    16 Waukegan Harbor, the old harbor or north harbor.
    17 Q. And where is Larson Marine located in
    18 relation to the OMC facility?
    19 A. OMC has a facility on the north end of
    20 Waukegan Harbor, and we are directly north of their
    21 facility.
    22 Q. Are you aware of the vacant piece of land
    23 at the OMC facility?
    24 A. Yes.
    L.A. REPORTING (312) 419-9292

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    1 Q. Where is Larson Marine located in relation
    2 to that piece of land?
    3 A. It would be directly north of that.
    4 Q. Can you describe the old harbor?
    5 A. Yes. It runs -- well, it runs two
    6 directions. The entrance channel runs east and
    7 west between Madison Street and Clayton Street in
    8 Waukegan, and then from that point it runs north
    9 and south approximately a half a mile.
    10 Q. What kind of activity goes on at the old
    11 harbor?
    12 A. There's a lot of commercial activity and
    13 some private boating activity. The boating
    14 activity would be there are slips for private boats
    15 within the harbor near the yacht club area, and
    16 when you go north of there, you have the, what they
    17 call, slip number one, which has two commercial
    18 operations, one being Cement Circles and the other
    19 National Gypsum Company.
    20 Across the way, Outboard Marine has
    21 an engineering place where they test motors and
    22 boats, and then north of that is the vacant
    23 property referred to, and north of that is already
    24 Larson Marine.
    L.A. REPORTING (312) 419-9292

    427
    1 Q. Are there any sea gulls in this harbor?
    2 A. There has been a lot of them.
    3 Q. Don't you expect to see sea gulls in the
    4 harbor?
    5 A. You expect to see sea gulls, but not in
    6 the quantity we've had at Waukegan Harbor in the
    7 recent years.
    8 Q. When you say in the recent years, when has
    9 the quantity of sea gulls grown?
    10 A. I would say it's become a problem, a
    11 serious problem, in the last four or five years.
    12 Q. What do you mean by a problem?
    13 A. Well, the number of birds that are there
    14 create a problem both from the noise and the fact
    15 that they deposit their droppings all over the
    16 area.
    17 Q. Have the sea gulls been a problem for your
    18 business?
    19 A. Yes, they have.
    20 Q. How so?
    21 A. The fact that they tend to fly in flocks,
    22 and a flock might be two or 300 birds, and they
    23 will take off and fly across the area. They were
    24 landing on one of our roofs, and then they would
    L.A. REPORTING (312) 419-9292

    428
    1 sit there and they would take off again as a flock,
    2 and if you were outside the area of that building
    3 and they flew over you, you'd better run for cover
    4 or they're going to deposit some droppings on you
    5 for sure. Also, the noise, as the previous witness
    6 testified to, the noise is substantial from the
    7 birds.
    8 Q. What does the noise sound like?
    9 A. Well, it's kind of a squawking noise I
    10 guess would be the best way I could describe it,
    11 loud.
    12 Q. Are you able to speak normally over the
    13 noise of the sea gulls?
    14 A. I would say if you and I were the distance
    15 we are apart and we're talking, we'd probably have
    16 to talk above normal voices to talk.
    17 Q. And how far apart would you say we are
    18 right now?
    19 A. Twenty feet.
    20 Q. You said the birds sit on the roofs of
    21 your building. Have they done anything on those
    22 roofs?
    23 A. Yes. The one building has had some
    24 damage. It's a metal roof, and it's caused the
    L.A. REPORTING (312) 419-9292

    429
    1 roof to decay or rust.
    2 Q. Do you know what has caused the roof to
    3 decay or rust?
    4 A. Sea gull droppings I'm sure is a part of
    5 it.
    6 Q. Do you -- have you repaired the roof?
    7 A. We have an estimate to repair it, and we
    8 plan to do it this summer after the birds leave,
    9 and it's costing approximately $15,000.
    10 Q. Have you had any other problems to boats
    11 in your business due to the birds?
    12 A. Well, they also deposit their droppings on
    13 the boats in the area, and, therefore, we're
    14 continuously washing the boats when the sea gull
    15 population is high.
    16 Q. Normally, how often do you have to wash
    17 the boats?
    18 A. Under normal conditions, you might do it
    19 once a week, and now, you know, if you cleaned it
    20 today for a customer tomorrow, you might have to
    21 clean it the next day also. You just never know
    22 for sure.
    23 Q. Do you have to wash anything else besides
    24 the boats?
    L.A. REPORTING (312) 419-9292

    430
    1 A. It's on cars, both our employees' cars and
    2 customers' cars.
    3 Q. Now, where are the boats put into the
    4 water?
    5 A. Well, again, at our location at the north
    6 end of the Waukegan Harbor.
    7 Q. Is it a dock?
    8 A. It's a series of docks.
    9 Q. Do you have any problems on the docks
    10 because of the birds?
    11 A. Again, before there's a lot activity on
    12 the dock, they basically white out the dock.
    13 Q. Excuse me. They --
    14 A. They cover the dock, again, with their
    15 droppings so it looks like, you know, if you've
    16 seen a lot of bird droppings, it's covered in kind
    17 of white. So they do cover that. Now, when the
    18 activity picks up, they tend to stay away from the
    19 docks themselves because there's people there, but
    20 before there were a lot of people there, they had
    21 the docks pretty well covered.
    22 Q. And do you have to do anything about that?
    23 A. You have to wash them because it's
    24 slippery when it's wet. It's slippery. Plus we
    L.A. REPORTING (312) 419-9292

    431
    1 can't track it on the boats. So, therefore, we
    2 have to wash the docks.
    3 Q. Are those docks part of the Larson Marine
    4 facility?
    5 A. Yes, they are.
    6 Q. Have any of your employees -- have you
    7 talked to any of your employees about the sea
    8 gulls?
    9 A. Sure.
    10 Q. Have any of them talked to you about the
    11 sea gulls?
    12 A. Yeah. They've complained about all the
    13 continual squawking noise that goes on all day
    14 long --
    15 Q. Do you have any concerns --
    16 A. -- and the dirt they make, yes.
    17 Pardon me?
    18 Q. Do you have any concerns about the sea
    19 gulls being there?
    20 A. Well, we're concerned about the health
    21 standpoint. I don't know how - exactly how serious
    22 of a problem that is. The fact that the sea gull
    23 dirt has been around in large -- fairly large
    24 quantities, I'm sure there's somewhat of a health
    L.A. REPORTING (312) 419-9292

    432
    1 hazard.
    2 Q. Are you aware of any efforts to relocate
    3 these sea gulls and address the problems?
    4 A. Yes.
    5 Q. And what is your knowledge?
    6 A. Well, OMC for the past two springs has had
    7 these cannons on the property directly to the south
    8 of ours going off on I assume a timer on a fairly
    9 constant basis.
    10 Q. When you say -- when you say the past two
    11 springs, do you include this spring?
    12 A. Yes.
    13 Q. So when did the cannons begin, which
    14 spring?
    15 A. Last year.
    16 Q. Okay. Can you hear these cannons from
    17 Larson Marine?
    18 A. We can hear them if we're outside.
    19 Personally, in my office, which isn't very far
    20 away, I don't hear them.
    21 Q. About how far away is your office from
    22 where the cannons are?
    23 A. Three or 400 yards.
    24 Q. When you hear the cannons, have you ever
    L.A. REPORTING (312) 419-9292

    433
    1 spoken to people outside?
    2 A. Sure.
    3 Q. Can you speak at normal tones?
    4 A. Yes.
    5 Q. Have any employees complained to you about
    6 the noise from the cannons?
    7 A. No, they have not.
    8 Q. And how far away is your outside boat yard
    9 from the cannons?
    10 A. You can -- from some of our areas, you can
    11 actually see the cannons, and I'd say the closest
    12 point -- as a matter of fact, I went and looked
    13 during the lunch hour to see how close the closest
    14 one was, and I'm going to say it's about 150 yards
    15 away.
    16 Q. In 1998, did you notice any change in the
    17 sea gulls as a result of these efforts?
    18 A. 1998?
    19 Q. Yeah. The last --
    20 A. Yes. After they had this campaign -- the
    21 program going for a while, the sea gulls definitely
    22 did leave the immediate area. They moved over to
    23 what was the gypsum company or is the gypsum
    24 company.
    L.A. REPORTING (312) 419-9292

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    1 MS. SMETANA: I have no further questions
    2 for this witness.
    3 HEARING OFFICER KNITTLE: Ms. Aavang?
    4 MS. AAVANG: Nothing.
    5 HEARING OFFICER KNITTLE: Mr. Sweda, do
    6 you have a cross-examination.
    7 MR. SWEDA: Just a couple.
    8 C R O S S - E X A M I N A T I O N
    9 by Mr. Sweda
    10 Q. Mr. Larson, do you serve on any boards or
    11 committees of the City of Waukegan?
    12 A. I'm on the board of the Waukegan Yacht
    13 Club and on the committee for the improvement of
    14 Waukegan downtown.
    15 Q. Do you -- you're an independent
    16 contractor, you're a businessman. Do you have any
    17 independent contracts with the City or Outboard
    18 Marine Corporation?
    19 A. No.
    20 MR. SWEDA: Thank you. That's all I
    21 have.
    22 HEARING OFFICER KNITTLE: Redirect?
    23 MS. SMETANA: No.
    24 HEARING OFFICER KNITTLE: Ms. Aavang?
    L.A. REPORTING (312) 419-9292

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    1 MS. AAVANG: Nothing.
    2 HEARING OFFICER KNITTLE: Do you need some
    3 additional time?
    4 MS. SMETANA: No. I was just waiting for
    5 Ms. Aavang to return. We're ready for our next
    6 witness. As its next witness, OMC calls Bill Noff.
    7 HEARING OFFICER KNITTLE: Have a seat,
    8 sir.
    9 (Witness sworn.)
    10 HEARING OFFICER KNITTLE: It's your
    11 witness, Ms. Smetana.
    12 WHEREUPON:
    13 W I L L I A M N O F F,
    14 called as a witness herein, having been first
    15 duly sworn, deposeth and saith as follows:
    16 D I R E C T E X A M I N A T I O N
    17 by Ms. Smetana
    18 Q. Please state your name for the record.
    19 A. My name if Bill Noff.
    20 Q. Mr. Noff, are you employed?
    21 A. Yes, I am.
    22 Q. And where are you employed?
    23 A. I'm a real estate broker with Century 21.
    24 Q. And what type of work do you do there?
    L.A. REPORTING (312) 419-9292

    436
    1 A. I manage real estate office.
    2 Q. What type of real estate do you work in?
    3 A. Residential.
    4 Q. And how long have you been in residential
    5 real estate?
    6 A. Eleven years.
    7 Q. And what days of the week do you work?
    8 A. It could be seven days a week.
    9 Q. What time do you leave for work generally
    10 in the mornings?
    11 A. Usually around 8:30.
    12 Q. And what time do you generally return
    13 home?
    14 A. Between 5:30 and 7:00.
    15 Q. And where do you live?
    16 A. 928 North County.
    17 Q. Excuse me?
    18 A. 928 North County.
    19 Q. And what is the cross street there?
    20 A. It's just north of Ridgeland and County
    21 Street -- south. I'm sorry. South.
    22 Q. And how long have you lived at 928 North
    23 County Street?
    24 A. Seven years.
    L.A. REPORTING (312) 419-9292

    437
    1 Q. And how long have you lived in the City of
    2 Waukegan?
    3 A. Ten years.
    4 Q. And prior to living at 928 County Street,
    5 what area did you live in?
    6 A. I lived a little further west on Grand
    7 Avenue.
    8 Q. Are you familiar with the area around your
    9 home?
    10 A. Yes.
    11 Q. And how are you familiar with that area?
    12 A. Well, I've been there for seven years.
    13 Q. Are you familiar with Stewart Avenue?
    14 A. Yes.
    15 Q. About how far away is that from your
    16 house?
    17 A. It's a block north.
    18 MS. SMETANA: I'm going to show the
    19 witness what's been marked as Exhibit 1.
    20 BY MS. SMETANA:
    21 Q. If you could mark on this -- Exhibit 1 is
    22 a map of the relevant area of Waukegan which has
    23 been previously identified.
    24 Can you mark your address on the map
    L.A. REPORTING (312) 419-9292

    438
    1 and then initial it and maybe put a square for
    2 where your house is?
    3 A. (Witness complied.)
    4 Q. On what side of the street are you located
    5 on?
    6 A. That's the west side of the street.
    7 Q. And can you actually put your address on
    8 there and maybe an arrow to the square.
    9 A. (Witness complied.)
    10 MS. SMETANA: The witness has put a square
    11 on the map where his house is located and an
    12 address.
    13 BY MS. SMETANA:
    14 Q. And are you able to identify where 923
    15 County Street is, North County Street?
    16 A. That should be across the street.
    17 Q. And can you put --
    18 A. Just to the right.
    19 Q. -- a square approximately where 923 north
    20 County Street is and also an arrow?
    21 A. (Witness complied.)
    22 Q. And can you identify one last thing, where
    23 Stewart Avenue is? Where is that descriptively in
    24 relation to 928 where you live, County Street?
    L.A. REPORTING (312) 419-9292

    439
    1 A. It's approximately a block north.
    2 Q. And can you just put your initials on
    3 Stewart Avenue?
    4 A. (Witness complied.)
    5 Q. Okay. Thank you.
    6 Where is North County Street in
    7 relation to Lake Michigan?
    8 A. It's about a mile west of the lake.
    9 Q. And is North County Street the same
    10 elevation as Lake Michigan?
    11 A. No. It's higher.
    12 Q. Do you know about how much higher?
    13 A. One hundred feet.
    14 Q. How would you describe the neighborhood in
    15 which you live?
    16 A. It's residential.
    17 Q. Do most of the houses have outdoor space?
    18 A. Yes.
    19 Q. Is there -- what's the traffic like on
    20 North County Street?
    21 A. Moderate. It could be heavy in the
    22 morning and the afternoon.
    23 Q. Is there -- are there -- what are the kind
    24 of streets nearby, the traffic patterns like on
    L.A. REPORTING (312) 419-9292

    440
    1 those streets?
    2 A. The nearby streets?
    3 Q. Yeah. What is the, I guess, the biggest
    4 street near North Country Street?
    5 A. Sheridan Road.
    6 Q. About how far away is that from North
    7 County Street?
    8 A. One block east.
    9 Q. And what's the traffic like on Sheridan
    10 Road?
    11 A. Moderate to heavy depending on the time of
    12 day.
    13 Q. Do people in your neighborhood have dogs?
    14 A. Yes.
    15 Q. How do you know they have dogs?
    16 A. I hear them. I see them.
    17 Q. When do you hear these dogs?
    18 A. Well, there's some dogs that bark
    19 constantly, and there's other people that walk
    20 their dogs. I see them on a regular basis.
    21 Q. And how frequently do you hear the noise
    22 from dogs?
    23 A. Frequently enough to remember it.
    24 Q. Are you familiar with the harbor at
    L.A. REPORTING (312) 419-9292

    441
    1 Waukegan?
    2 A. Correct.
    3 Q. Yes?
    4 A. Yes.
    5 Q. How far away from your neighborhood is the
    6 harbor?
    7 A. About a mile.
    8 Q. Again, on what side of North County Street
    9 do you live?
    10 A. On the west side.
    11 Q. Can you describe the lot on which your
    12 house sits?
    13 A. It's about 50 by 150. The house sits up
    14 toward the east side of the property, and there's a
    15 yard in the back.
    16 Q. And what is at the rear property line of
    17 your backyard?
    18 A. Hall Court.
    19 Q. And how far away are you from Gillett
    20 Avenue?
    21 A. Gillett is about a half a block south.
    22 Q. Do you spend time in your yard?
    23 A. Yes.
    24 Q. During what time of the year are you in
    L.A. REPORTING (312) 419-9292

    442
    1 your yard?
    2 A. Mainly in the spring and summer, the warm
    3 months.
    4 Q. What activities do you do and enjoy in
    5 your yard?
    6 A. We entertain and barbecue. I do yard work
    7 when necessary.
    8 Q. Last spring and summer, did you entertain
    9 in your yard?
    10 A. Yes.
    11 Q. When you entertain people in your yard, do
    12 you talk to them?
    13 A. Yes.
    14 Q. At what tone of voice do you talk with the
    15 people you entertain?
    16 A. Normal conversation.
    17 Q. Are you aware of sea gulls in the harbor?
    18 A. Yes.
    19 Q. How are you aware of that?
    20 A. I've seen them when I've been down there.
    21 Q. How would you describe the sea gulls in
    22 the past year or so, the past two years?
    23 A. Since I'm not down there that much, it
    24 would be hard for me to give you a really good
    L.A. REPORTING (312) 419-9292

    443
    1 idea.
    2 Q. Would you --
    3 A. I would say I've seen a lot of them.
    4 Q. A lot of them?
    5 A. But I don't know what I would be basing
    6 that against.
    7 Q. How long have you lived in Waukegan?
    8 A. Ten years.
    9 Q. About, I don't know, eight years ago, what
    10 would you describe the sea gulls like?
    11 A. Not quite as many.
    12 Q. Do you know of anything that's being done
    13 with respect to the sea gulls?
    14 A. I believe OMC is in the process of trying
    15 some things.
    16 Q. Do you know how they're trying to do some
    17 things with respect to the sea gulls?
    18 A. They're using the cannons.
    19 Q. Have you ever heard these cannons?
    20 A. On occasion.
    21 Q. Where were you when you heard the cannons?
    22 A. I could be in the house or in the yard.
    23 Q. Do you remember when you first heard the
    24 cannons?
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    1 A. A year or a specific date?
    2 Q. No, just, I mean, in general.
    3 A. Probably last year.
    4 Q. Do you remember when last year?
    5 A. Probably in the springtime.
    6 Q. What does this noise from the cannon sound
    7 like when you're in your yard?
    8 A. Like popping a paper bag.
    9 Q. Has the noise ever made you jump?
    10 A. No.
    11 Q. Last spring and summer, did the noise
    12 prevent you from doing anything outside in your
    13 yard?
    14 A. No.
    15 Q. Did the noise ever interfere with speaking
    16 outside?
    17 A. No.
    18 Q. When you're outside, do you ever talk on
    19 the phone?
    20 A. Sometimes.
    21 Q. And have you been able to talk on the
    22 phone last spring and summer outside?
    23 A. Yes.
    24 Q. Did the noise ever interfere with your
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    445
    1 ability to talk on the phone?
    2 A. No.
    3 Q. Do you have a bird feeder?
    4 A. Yes.
    5 Q. Did birds come to your feeder last spring
    6 and summer?
    7 A. Yes.
    8 Q. Did you notice anything different in the
    9 behavior of the birds at your feeder?
    10 A. No.
    11 Q. Do you have any other wildlife or animals
    12 in your backyard?
    13 A. The squirrels, raccoons.
    14 Q. Have you -- last spring and summer, did
    15 you notice anything different in the squirrels'
    16 behavior?
    17 A. No.
    18 Q. When you're outside your house, do you
    19 hear any other noises?
    20 A. Yes.
    21 Q. What kind of noises do you hear?
    22 A. Boom boxes, traffic, dogs barking --
    23 Q. And what time -- I'm sorry.
    24 A. Music from other buildings.
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    1 Q. And what time of the year do you hear boom
    2 boxes?
    3 A. You pretty much hear that year-round.
    4 Q. And where is that noise coming from?
    5 A. It's usually off the street.
    6 Q. And could you compare the noise of the
    7 boom boxes to the noise from the cannons?
    8 A. The boom box is much more irritating.
    9 Q. Do your neighbors to the north have a
    10 yard?
    11 A. Yes.
    12 Q. Do they spend time outside?
    13 A. Occasionally.
    14 Q. Do your neighbors to the south have a
    15 yard?
    16 A. Yes.
    17 Q. Have you seen them outside?
    18 A. Yes.
    19 Q. Do you notice anything different in the
    20 amount of time they spend outside?
    21 A. No.
    22 Q. Do you know the complainant in this
    23 matter, Mr. Sweda?
    24 A. Yes.
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    1 Q. How do you know him?
    2 A. He's a neighbor across the street.
    3 Q. Have you ever spoken to Mr. Sweda?
    4 A. Maybe ten years ago I said hi when he was
    5 in the real estate business.
    6 Q. You knew Mr. Sweda when you were in the
    7 real estate business?
    8 A. Right.
    9 Q. Since that time, have you had occasion to
    10 speak to Mr. Sweda?
    11 A. No.
    12 MS. SMETANA: I have no further questions.
    13 MS. AAVANG: I have nothing.
    14 HEARING OFFICER KNITTLE: Mr. Sweda?
    15 MR. SWEDA: I have nothing.
    16 HEARING OFFICER KNITTLE: Thank you, sir.
    17 You can step down.
    18 (Break taken.)
    19 HEARING OFFICER KNITTLE: Just for the
    20 record, we're going to allow the City of Waukegan
    21 to call one witness who has a time constraint
    22 before OMC finished their case in chief, and
    23 there's no objection by Mr. Sweda.
    24 MR. SWEDA: No objection.
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    448
    1 MS. SMETANA: No objection.
    2 HEARING OFFICER KNITTLE: No objection
    3 from OMC. So, Ms. Aavang, you can proceed.
    4 MS. AAVANG: Thank you. The City of
    5 Waukegan would like to call Dan Chamernik.
    6 (Witness sworn.)
    7 WHEREUPON:
    8 D A N I E L C H A M E R N I K,
    9 called as a witness herein, having been first
    10 duly sworn, deposeth and saith as follows:
    11 D I R E C T E X A M I N A T I O N
    12 by Ms. Aavang
    13 Q. Would you please state your name and spell
    14 your last name for the record?
    15 A. Sure. My name is Daniel Chamernik,
    16 C-h-a-m-e-r-n-i-k.
    17 Q. And, Mr. Chamernik, where do you live?
    18 A. I live in Lindenhurst, 529 White Bridge
    19 Road.
    20 Q. And where are you currently employed?
    21 A. I'm currently employed at Middlehurst
    22 School in Wadsworth and during the summertime, I
    23 work for the City of Waukegan working the park
    24 district and the Waukegan beach.
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    1 Q. How long have you worked at the beach?
    2 A. I believe this is my sixth year or fifth
    3 year. I think it's my sixth year.
    4 Q. And are you a lifeguard or another title
    5 besides lifeguard?
    6 A. I'm in charge of all the lifeguards and
    7 overseeing the grounds and everything like that.
    8 Q. What time of year do you actually start
    9 being present down at the beach?
    10 A. We typically begin in May, the latter part
    11 of May, and we work through the Labor Day weekend
    12 and then one more week usually just to get things
    13 finished.
    14 Q. When would it be safe to say that you are
    15 physically at the beach yourself every day, the end
    16 of May?
    17 A. Yeah. We officially open Memorial Day
    18 weekend. We're there a week prior to that just for
    19 preparation. After that, we're open seven days a
    20 week beginning roughly in June, the first weekend
    21 in June. So we're open Memorial Day. Then we're
    22 off for a couple of days. Then we come back and
    23 we're open seven days a week until Labor Day.
    24 Q. What hours are the lifeguards actually
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    1 present on the beach?
    2 A. 10:00 a.m. until 6:00 p.m., but many times
    3 we're there earlier and later depending on the
    4 volume and the weather and other things like that.
    5 Q. I take it if there's bad weather, you may
    6 not be there that long. If the weather is good and
    7 you've a lot of people, you may be there later?
    8 A. Yeah. We extend our hours if needed just
    9 for the safety of the swimmers and stuff like
    10 that. Weather, we just wait and see and we have a
    11 checkpoint time according to our policy that the
    12 Waukegan Park District and the City have, and if
    13 it's still raining, there's no use staying so we go
    14 home.
    15 Q. Now, you've been at the beach now you've
    16 indicated five or six years working as a lifeguard;
    17 is that correct?
    18 A. Working at the beach, yes.
    19 Q. And during that time, have you noticed any
    20 gulls being present on the beach?
    21 A. Oh, yes.
    22 Q. And was there a change in the gull
    23 population at some point since you've been down
    24 there?
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    1 A. Each and every year, you could tell that
    2 it was increasing. Then after the 1997 season,
    3 last winter -- summer, it wasn't as bad as it has
    4 been the previous years.
    5 Q. And you haven't been down there yet this
    6 year to see what the gull population is; is that
    7 correct?
    8 A. Well, I went down there for one day after
    9 we had a meeting just to get things going for the
    10 summer with my boss, and they were all over the
    11 place pretty much.
    12 Q. Was it as bad as '97?
    13 A. No. Nothing was as bad as '97, no.
    14 Q. Does 1997 stick out in your mind as a bad
    15 year?
    16 A. Oh, yeah. We -- yes.
    17 Q. What made 1997 a bad year for you at the
    18 beach?
    19 A. Well, first of all, the weather was very
    20 hot that year. So we were busy a lot, and the
    21 population of the sea gulls had risen to such a
    22 point where the babies themselves, after they were
    23 born, they were all over the place. We had to call
    24 animal control sometimes to get them either just
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    1 taken away because they were injured and there came
    2 a point in time where we were scooping up anywhere
    3 between ten to 13 dead sea gulls, not necessarily
    4 all babies, a day from the Sea-Horse Drive from
    5 cars hitting them, from OMC, us, you know, our
    6 visitors to the beach, you know, police officers,
    7 whoever just traveled up and down that road, and
    8 there were dead sea gulls on the beach. There were
    9 dead sea gulls in the water, and it was a pretty
    10 messy time, and that was just for the sea gulls.
    11 We also actually closed many times.
    12 Each morning, the Waukegan Health Department or the
    13 Lake County Health Department comes down and takes
    14 a fecal reading for bacteria, and the fecal matter
    15 for some reason during that time period in the area
    16 that we patrol for lifeguarding was higher than
    17 what they allowed, and we had to close it down due
    18 to high bacteria.
    19 Q. Why don't we stop there a minute.
    20 You mentioned high bacteria. I take
    21 it you don't have any specialized training. You're
    22 just a lifeguard, correct? I mean --
    23 A. Oh, no.
    24 Q. -- you're not --
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    1 A. I have some.
    2 Q. Did you or did any -- did you formulate an
    3 opinion personally as to why the fecal count was so
    4 high in 1997?
    5 A. Well, I would have contact with the health
    6 department. I didn't do the actual water testing,
    7 but we would discuss problems, you know, why is
    8 this. Typically, the bacteria will be high after a
    9 very heavy rain due to just overrun of water from
    10 the streets and stuff into the lake.
    11 Our swimming area is unique because
    12 it's a rather shallow area. It's enclosed to the
    13 north by OMC -- an old OMC pier and the south by
    14 the harbor wall. So the water itself, you know,
    15 even though it's open comes in, but there's not as
    16 much movement as it is anywhere else along the lake
    17 in our general area, and for that reason, you know,
    18 the water is a little bit warmer, it's shallower,
    19 and it's much, much calmer.
    20 Q. Did you formulate or did anyone provide
    21 you information that indicated the gulls, the
    22 increase in the gull population, was a factor in
    23 the increase in the bacteria?
    24 A. Yeah. It was suggested by the Lake County
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    1 Health Department because, you know, we could not
    2 understand why day in day out we were constantly
    3 being closed for high bacteria, and was it ever
    4 proven, I don't know if it was, but we had just
    5 said, you know, well the reason we're being closed
    6 was because of fecal matter, and I know we have a
    7 lot of swimmers, but I don't think they were the
    8 cause of that, and so we just came to the
    9 conclusion that it was from the bird droppings in
    10 the water that would stay in the water area.
    11 Q. Now, you had indicated earlier that in
    12 1997 you and your crew ended up picking up a pretty
    13 constant number of dead sea gulls from the beach
    14 and the walkway area.
    15 A. Uh-huh.
    16 Q. Had -- was that a larger number than what
    17 you had experienced in prior years in terms of dead
    18 gulls?
    19 A. Oh, yes. Even last year, we had maybe ten
    20 the whole season. The years prior to that, you
    21 know, it would be between ten and 20. You know,
    22 some of them they just die, the older ones die, and
    23 you pick those up, but I never seen so many dead
    24 baby gulls.
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    1 Q. As you did in 1997?
    2 A. Dead and adult gulls. The population was
    3 just so big. It was like survival of the fittest,
    4 and the older stronger ones got the food and the
    5 other ones starved and went wandering to look for
    6 it and ended up getting hit by cars.
    7 Q. Now, in your experience as a lifeguard at
    8 the beach, have you had any experience of the gulls
    9 swooping down on humans?
    10 A. Oh, yes. You know, people come down and
    11 picnic, you know, picnic lunches, and there they
    12 are like as soon as your back is turned, they'll
    13 make their attempt to get, you know, a little piece
    14 of food or come right up to picnickers, and they're
    15 in the garbage cans, you know, digging for food,
    16 and myself, I jog on a regular basis, and one just
    17 flew and hit me right in the chest as I was jogging
    18 down the beach.
    19 Q. In 1997, you indicated it was a bad year.
    20 Last year, was there an improvement in the
    21 condition?
    22 A. Yeah. I mean, there were still some gulls
    23 around. We were closed for bacteria just a minimal
    24 number of times. I want to say maybe only six for
    L.A. REPORTING (312) 419-9292

    456
    1 the whole summer. There weren't as many sea gulls
    2 in our beach area or even pretty much to the north
    3 of the OMC pier, which is also used by sunbathers
    4 and boaters and, you know, picnickers and stuff
    5 like that.
    6 Q. You indicated earlier the beach is kind of
    7 an area between the old OMC pier and I believe you
    8 had another landmark you used. What was that?
    9 A. It was the harbor entrance wall.
    10 Q. And how big of a beach area are we talking
    11 about that you and your guards patrol?
    12 A. I never measured it out. I'd have to say
    13 that it's probably a third of a mile long, if not
    14 longer than that, maybe even a half mile, maybe
    15 even a half mile, and that's the beach area. Maybe
    16 not a half mile, about a third of a mile, but we
    17 only patrol -- we have an enclosed swimming area,
    18 and then we patrol beyond that with a little boat
    19 that we have just for the safety of jet skiers and
    20 sail boaters and power boaters and stuff.
    21 Q. In that area you patrol, you indicated you
    22 would be cleaning up gulls both off of the beach
    23 and off of the walkway, correct?
    24 A. And the water, yes.
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    457
    1 Q. And in the water also?
    2 A. And in the water, yeah.
    3 Q. Would that be gulls that either washed up
    4 on the shore or ones that you actually are out in
    5 that boat that you see and pick up?
    6 A. It would -- yeah, both. You know, even
    7 dead gulls are in the swimming area. You know,
    8 some of the kids come out and they're kids and they
    9 don't know and here they have a dead sea gull in
    10 their hands. You know, it's like, you know, mom or
    11 dad comes over, what's that, and send them up to
    12 wash their hands. We just get rid of the carcass.
    13 Q. When you and your crew go around picking
    14 up the carcasses, do you do it with bear hands?
    15 A. No. We wear gloves. We have shovels and
    16 we disinfect them with bleach when we're done.
    17 Q. Have you had any individuals that you know
    18 of coming and complaining, either citizens using
    19 the beach or anyone else complaining, about being
    20 ill from the gulls?
    21 A. Directly from the sea gulls, no, but the
    22 health department does close the beach down when
    23 the fecal matter is high. So they must have a --
    24 they definitely have a concern about the water
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    458
    1 quality in that area.
    2 Q. In 1998, you indicated there were less
    3 gulls?
    4 A. Yes.
    5 Q. At least in the immediate beach area.
    6 Did you -- there was still a gull
    7 population?
    8 A. Oh, yeah. There was a smaller one that
    9 was still on our beach, but some mornings back
    10 in '97 when I'd come down there to begin the
    11 clean-up process, I mean the whole entire beach
    12 area would be white, and that was not necessarily
    13 from the droppings. It was just from the gulls
    14 just standing, you know.
    15 We have a machine that drives along
    16 the beach and picks up the sand and takes the
    17 garbage out and returns the sand, and, you know,
    18 you could tell -- well, you could see the numerous
    19 droppings, you know, in that area. Since then,
    20 there's still a population down there further north
    21 along the other beach that isn't patrolled or isn't
    22 patrolled by lifeguards, but yet we still patrol
    23 it, and it's still used by a smaller number of
    24 people. It seems like they've moved north, north
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    1 of where the old Sea Hag concession stand used to
    2 be and where the Commonwealth Edison power plant is
    3 in that area.
    4 Q. Now, you indicated your season actually
    5 doesn't start until the end of May. When you were
    6 down there, though, either at the end of May or in
    7 early June, did you ever hear any noise like
    8 cannons firing or gun fire from the OMC plant?
    9 A. No. I've never actually heard it, or if
    10 I have, it hasn't registered. I mean, there is
    11 noise down. There's boat traffic, you know, people
    12 playing and screaming and yelling and laughing and
    13 stuff like that, but I've never actually heard it
    14 to where I said oh, that's the OMC cannons that are
    15 being used.
    16 Q. In 1997, did anyone ever -- any citizens
    17 who were using the beach ever come to you and
    18 complained about the number of gulls or the mess
    19 that was being made?
    20 A. Oh, yes. Yeah. I even called a few
    21 people in July to try to find answers to what we
    22 can do with them.
    23 Q. You mean the people or the gulls?
    24 A. The gulls. I'm sorry. Not the people.
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    1 And, you know, I had called up like the Illinois
    2 Conservation people, and they directed me to the
    3 Lake County chapter and then to the McHenry chapter
    4 and then down to Springfield and all over the
    5 place, and basically, you know, once animals become
    6 overpopulated, I know certain times they come out
    7 and rid the animals, and I inquired about that, and
    8 they said that's probably not what they would do,
    9 but they said that if you disturb the nesting
    10 areas, you can do that. It's sort of like what
    11 they do with geese on golf courses these days, but
    12 I have to do down there. I'm not going to go shake
    13 eggs.
    14 Q. I was going to say did any of the
    15 lifeguards try to undertake to disturb the nests?
    16 A. No, no. It's too numerous. You know, I
    17 mean, our duties are to protect lives of people
    18 that are swimming and to maintain the cleanliness
    19 of the area, and by doing that, we're still putting
    20 in ten hour days. So we never attempted to do
    21 anything.
    22 Q. And you indicated in 1998 there seemed to
    23 be an improvement?
    24 A. Yes.
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    1 Q. Do you still have gulls that are nesting
    2 on the beach area?
    3 A. I haven't seen any this year. I've only
    4 been down there one time. I'm not sure if they're
    5 even nesting at this point in time yet.
    6 Q. What time were you down there?
    7 A. I just went down a couple days ago, but
    8 we'll start going down there in about three weeks
    9 to begin cleaning up from the winter.
    10 Q. And generally by that time normally would
    11 there already be nests when you would go down?
    12 A. Yes. They would be in the nests probably.
    13 MS. AAVANG: I have nothing further.
    14 HEARING OFFICER KNITTLE: Anything from
    15 OMC?
    16 MS. SMETANA: No questions.
    17 HEARING OFFICER KNITTLE: Mr. Sweda, do
    18 you have any?
    19 MR. SWEDA: No.
    20 HEARING OFFICER KNITTLE: Sir, you can
    21 step down.
    22 THE WITNESS: Thanks.
    23 HEARING OFFICER KNITTLE: Thank you.
    24 I take it we're going to resume with
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    1 OMC's last witness?
    2 MS. SMETANA: Yes. I'd like to wait for
    3 Ms. Aavang.
    4 HEARING OFFICER KNITTLE: Ms. Aavang, are
    5 you going to be a while?
    6 MS. AAVANG: No. Just go right ahead and
    7 start.
    8 MS. SMETANA: For its next witness, OMC
    9 calls Brian Homans.
    10 (Witness sworn.)
    11 WHEREUPON:
    12 B R I A N H O M A N S ,
    13 called as a witness herein, having been first
    14 duly sworn, deposeth and saith as follows:
    15 D I R E C T E X A M I N A T I O N
    16 by Ms. Smetana
    17 Q. Mr. Homans, please state your name for the
    18 record.
    19 A. My name is Brian L. Homans.
    20 Q. And what is your occupation?
    21 A. I'm an acoustical engineer.
    22 Q. What is an acoustical engineer?
    23 A. I work for a firm. We specialize in the
    24 measurement and analysis of noise. I'm involved in
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    463
    1 design of noise abatement measures for clients. My
    2 particular specialty area is environmental
    3 acoustics dealing with noise outside. The
    4 specialty of our firm is dealing with building
    5 acoustics; that is, the effect of buildings on
    6 noise.
    7 Q. And how long -- what is the name of the
    8 firm you're with?
    9 A. Shiner & Associates, Incorporated.
    10 Q. And how long have you been with Shiner &
    11 Associates?
    12 A. Since 1982.
    13 Q. And what did you do prior to working for
    14 Shiner & Associates?
    15 A. Prior to that, I was with IIT Research
    16 Institute from 1980 until 1982.
    17 Q. What type of research?
    18 A. Dealing in acoustics or noise control.
    19 Q. And prior to being at IIT, where did you
    20 work?
    21 A. I was with the City of Chicago from 1978
    22 until 1980.
    23 Q. And what did you do for the City of
    24 Chicago?
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    1 A. I was an environmental engineer working
    2 exclusively in the field of noise answering
    3 complaints and dealing with complainants and trying
    4 to resolve the problems that they had with
    5 industrial sources and things like that.
    6 Q. In that position, did you take field
    7 measurements as well, sound measurements?
    8 A. Yes.
    9 Q. And prior to being with the City of
    10 Chicago, what did you do?
    11 A. I was with the U.S. Army Construction
    12 Engineering Research Laboratory in Champaign.
    13 Q. What is that?
    14 A. That's a Corps of Engineers research
    15 laboratory in Champaign, and I was with the
    16 acoustic section there.
    17 Q. And what did you do for them?
    18 A. From the period of 1973 until 1978, we
    19 dealt with measurements and analysis of noise
    20 sources as it affected army bases and the civilian
    21 population outside of army bases.
    22 Q. What is your formal education?
    23 A. I have a BS in physics from Ohio
    24 University.
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    465
    1 Q. And when did you receive that degree?
    2 A. 1973.
    3 Q. What do you currently do to keep up on the
    4 advances in your field?
    5 A. I do quite a bit of reading and talking
    6 with colleagues.
    7 Q. Reading of what?
    8 A. Magazines and journals.
    9 Q. Related to?
    10 A. Acoustics and noise control.
    11 Q. Are you involved in any professional
    12 societies?
    13 A. Yes. I'm a member of the Chicago Regional
    14 Chapter of the Acoustical Society of America at
    15 this point.
    16 Q. And have you held any leadership positions
    17 in the past in this society?
    18 A. Yes. I was president of the local chapter
    19 of the Acoustical Society, and I've also been
    20 president of the Midwest Acoustics Conference in
    21 the mid '80s.
    22 Q. And what did these societies
    23 and conferences involve?
    24 A. Midwest Acoustics Conference puts on a
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    466
    1 one-day seminar every year or two to inform
    2 professionals about various aspects of acoustics.
    3 Q. And do you attend these conferences and
    4 seminars?
    5 A. Yes. The group has been dormant for about
    6 five years or so.
    7 Q. The other professional society that you
    8 are active in?
    9 A. The Acoustical Society of America. Yes.
    10 I attend local meetings. Usually, there's --
    11 always there's a guest speaker to talk about
    12 various aspects of acoustics and also, you know, an
    13 opportunity to interact with my piers.
    14 Q. And can you describe generally the parties
    15 who retain your services?
    16 A. We are retained by developers, building
    17 owners, contractors, private citizens, private
    18 residents, architects, mechanical engineers.
    19 Q. Have you ever been retained by the
    20 government?
    21 A. Certainly, yes.
    22 Q. What government bodies have retained your
    23 services?
    24 A. Certainly, the State of Illinois
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    1 Department of Transportation dealing with roadway
    2 noise. I've various jobs for the federal
    3 government in the past, not a whole lot, and with
    4 the tollway commission.
    5 Q. What do you consider to be your areas of
    6 specialization?
    7 A. My personal area, as I stated before, is
    8 environmental acoustics; that is, dealing with the
    9 noise and its effects outdoors, and for this I deal
    10 with developers in terms of measurement and
    11 prediction of noise levels as it relates to outdoor
    12 noise sources. This could range from trains,
    13 highways, sirens, and the design and mitigation of
    14 systems to reduce noise from these sources.
    15 Q. And what expertise do you have in taking
    16 sound measurements?
    17 A. I have completed seminars put on by
    18 manufacturers groups on measurement of sound and
    19 vibration.
    20 Q. And what about your actual experience in
    21 the field?
    22 A. That's on-the-job training, hundreds of
    23 sound level measurements.
    24 Q. In a year, how many sound measurements
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    1 would you say you take?
    2 A. In the course of a year, probably on the
    3 order of 100 sound level readings.
    4 Q. What is the basis of all -- of this
    5 expertise?
    6 A. In terms of my practical training and
    7 educational experience.
    8 Q. And how many years of experience do you
    9 have?
    10 A. Since 1973 until the present working
    11 exclusively in noise.
    12 Q. So approximately 25 years?
    13 A. Yes.
    14 Q. Does your experience include field testing
    15 of impulsive sound?
    16 A. Yes, it does.
    17 MS. SMETANA: At this point, I'd like to
    18 offer Mr. Homans as an expert.
    19 HEARING OFFICER KNITTLE: Mr. Sweda?
    20 MR. SWEDA: No qualms.
    21 MS. AAVANG: No objection.
    22 HEARING OFFICER KNITTLE: So admitted.
    23 MS. SMETANA: Can you just -- just so the
    24 record reflects.
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    1 HEARING OFFICER KNITTLE: I've already
    2 said it.
    3 MS. SMETANA: Oh, you have. Okay.
    4 HEARING OFFICER KNITTLE: Did you get
    5 that?
    6 THE REPORTER: Yes.
    7 HEARING OFFICER KNITTLE: Okay.
    8 MS. SMETANA: Sorry.
    9 BY MS. SMETANA:
    10 Q. Mr. Homans, are you familiar with the
    11 Outboard Marine Corporation?
    12 A. Yes, I am.
    13 Q. Are you familiar with the Outboard Marine
    14 Corporation's operation of propane cannons to
    15 disturb the sea gulls nesting in Waukegan,
    16 Illinois?
    17 A. Yes, I am.
    18 Q. And how are you familiar with this?
    19 A. I had the procedure described to me by
    20 several people and also observed the operation of a
    21 cannon at close range.
    22 Q. What people described the procedure?
    23 A. That would be Roger Crawford who described
    24 at great lengths what OMC is doing to disturb the
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    1 sea gulls.
    2 Q. Where is Roger Crawford employed?
    3 A. He's employed by OMC in the environmental
    4 division.
    5 Q. And can you generally describe the propane
    6 cannons, what they look like and how they operate?
    7 A. Yes. They are relatively small devices
    8 about two and a half to three feet high. They
    9 contain a tube about two to three inches in
    10 diameter, and the tube is mounted on a tripod. The
    11 whole apparatus is connected to a propane cylinder,
    12 the same kind of cylinder that you'd use for a
    13 backyard barbecue grill.
    14 The propane powers the cannon.
    15 There's no electrical connections or batteries or
    16 anything like that. It's my understanding that
    17 the -- and from what I observed that the propane
    18 fills up a bladder and this cocks a trigger. At a
    19 certain point, the trigger fires as an electric
    20 crystal which generates a spark and that, in turn,
    21 ignites the propane and creates the blast or the
    22 noise. After the cannons discharge, they rotate to
    23 a random position.
    24 Q. Did you see these cannons in operation?
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    1 A. Yes, I did.
    2 Q. And when did you see them in operation?
    3 A. That was on March 4th of this year.
    4 Q. Do you know if they were operating the
    5 same when you saw them on March 4th as they were
    6 last year in 1998?
    7 A. Yes. It's my understanding that they
    8 were.
    9 Q. Was it the same cannons?
    10 A. Yes, the same cannons, the same exact
    11 cannons that were set up.
    12 Q. What did OMC retain you to do?
    13 A. I was requested to measure and assess the
    14 noise from the cannons at a point near Mr. Sweda's
    15 residence and to compare those results with the
    16 Illinois EPA standards.
    17 Q. Standards for what?
    18 A. For noise.
    19 Q. Can you describe how you went about doing
    20 this generally?
    21 A. Yes. I located a measurement site close
    22 to Mr. Sweda's residence, and the site was between
    23 his house and the OMC coke plant site, about the
    24 same distance from Sheridan Road as the rear of his
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    1 property so that the measurement position was
    2 closer to the OMC site than his residence.
    3 Q. And what were you -- what standard were
    4 you measuring for?
    5 A. I was measuring for impulsive noise part
    6 901.104.
    7 Q. Okay. And why did you measure it at
    8 the -- near Mr. Sweda's property? Why did you
    9 choose a location near his property?
    10 A. I wanted to be as close as possible to his
    11 property without disturbing him and be about the
    12 same distance from Sheridan Road.
    13 Q. Is that required somewhere that you be
    14 close to his property?
    15 A. Yes.
    16 Q. Where is that required?
    17 A. I believe it's stated in the standards
    18 that you should be at or near the complainant's
    19 property.
    20 Q. Would you refer to that property as the
    21 receiving source?
    22 A. Yes.
    23 Q. You say you selected the property, and
    24 where exactly was the property in relation to 923
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    1 North County Street?
    2 A. I was located on the north side of Gillett
    3 in the front yard of 226 Gillett actually between
    4 226 and 218 Gillett.
    5 Q. And on what day was this?
    6 A. This was on March 4th.
    7 MS. SMETANA: Can I -- I'm going to have
    8 the witness identify on Exhibit 1 where he stood on
    9 March 4th.
    10 BY MS. SMETANA:
    11 Q. Can you put a little square approximately
    12 where that was and then also date it. Mark the
    13 date you were there and put your initials too.
    14 A. (Witness complied.)
    15 Q. Thank you.
    16 What kind equipment do you use for
    17 this type of testing?
    18 A. For this equipment, I used a spectrum
    19 analyzer, which is a sound level meter that has the
    20 ability to measure frequency bands also. I used a
    21 microphone and preamp with an extension cable
    22 and everything was mounted on a tripod. The
    23 microphone and preamp were mounted on a tripod and
    24 protected with a wind screen.
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    1 Q. And how did you select this equipment?
    2 A. This is equipment that we commonly use for
    3 measurement of environmental noise and it complies
    4 with the standards set forth in the EPA
    5 regulations.
    6 Q. When you say EPA regulations, are you
    7 referring to the pollution -- the Board
    8 regulations?
    9 A. Yes.
    10 Q. Are you trained to use this equipment?
    11 A. Yes, I am.
    12 Q. And for how many years have you been using
    13 this type of equipment?
    14 A. We have owned this type of equipment for
    15 approximately 12 years.
    16 Q. Can you briefly describe your training in
    17 using this kind of equipment?
    18 A. Yes. I've attended several manufacturer
    19 seminars on the operation of this equipment.
    20 Q. And how frequently do you use this
    21 equipment?
    22 A. Two to three times a week.
    23 Q. Again, did you conduct noise readings of
    24 OMC's operations of propane cannons?
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    1 A. Yes, I did.
    2 Q. On what days?
    3 A. That was on March 4th as I've already
    4 described, and then I returned on March 15th.
    5 Q. And did you follow this methodology you
    6 just described when you took these measurements or
    7 do you want to describe your methodology further
    8 after selecting the site?
    9 A. I will at this time, yes. I set up the
    10 equipment, including the analyzer, which I placed
    11 in my car and connected to the microphone and
    12 preamp on a tripod. I placed the tripod and
    13 microphone on the parkway on the north side of
    14 Gillett approximately 15 to 20 feet away from my
    15 car.
    16 It was cold that day, on both days
    17 actually, and so I remained in my car with the
    18 windows down and my coat on and bundled up and my
    19 head sticking out of the window.
    20 Q. Were the windows open in your car?
    21 A. Absolutely.
    22 Q. Does the equipment you use, is it a
    23 recording device?
    24 A. Yes, of sorts. It's a digital recording
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    1 device in that it measures the sound levels so that
    2 the sound levels can be recalled at a later time.
    3 Q. Can you listen to the recording of that?
    4 A. No, you can't. Again, the equipment only
    5 measures the sound levels and retains those.
    6 Q. And what do you do once you have the
    7 digital recording?
    8 A. Once I have the data files contained in
    9 the analyzer, I download those to my personal
    10 computer in my office into an Excel spreadsheet and
    11 from there look at the result and graph them.
    12 Q. And under the standards of 901.104, what
    13 kind of sound level is it you're measuring for?
    14 A. There's -- the Pollution Control Board
    15 standards are written in terms of time and day and
    16 also land use of both the source and the receiving
    17 property. For this situation, the coke plant site
    18 is land use C and residential is land use A. It's
    19 my understanding that the cannons were only fired
    20 during the daytime between 7:00 a.m. and 10:00 p.m.
    21 So that would be a daytime --
    22 Q. You're defining daytime, not the time the
    23 cannons were actually used?
    24 A. I'm sorry.
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    1 Q. What you just said, 7:00 a.m. to 10:00
    2 p.m., does that define daytime?
    3 A. Yes, official Pollution Control Board
    4 daytime as they define it, and their level -- their
    5 standard is 55 DBA, and I should explain that
    6 that's averaged over a one-hour period -- 56 DBA.
    7 I'm sorry.
    8 Q. And how -- I'm sorry. Over what period of
    9 time is it measured?
    10 A. That sound level is to be averaged or
    11 energy averaged over a one-hour period.
    12 Q. And where is that referenced?
    13 A. That is stated in the Pollution Control
    14 Board standards.
    15 Q. And does anything else have to be done in
    16 that 60-minute period?
    17 A. Yes. You're permitted to exclude
    18 extraneous events from your measurements.
    19 Extraneous events include aircraft fly-overs, for
    20 example, people talking to you during the
    21 measurements, dogs barking, cars passing directly
    22 on the street where you're at.
    23 Q. How do you know when these extraneous
    24 events occur while you're out there taking your
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    478
    1 measurements?
    2 A. I'm there, I'm listening, and I'm taking
    3 notes.
    4 Q. And do you mark down when these extraneous
    5 events occur?
    6 A. Yes. I should explain that I set up the
    7 instrumentation to sample 30 second blocks or
    8 periods so that every 30 seconds the analyzer would
    9 record the results and store the results to memory
    10 and reset and begin sampling again for another 30
    11 seconds. I also kept a log in which every 30
    12 seconds I wrote down how many cannon blasts I heard
    13 and what other types of noises I heard.
    14 Q. And were you there the entire time --
    15 A. Yes.
    16 Q. -- during the measurements --
    17 A. Yes.
    18 Q. -- on both March 4th and March 15th?
    19 A. Absolutely.
    20 Q. What was the set up of the cannons on
    21 March 4th and March 15th when you took the -- the
    22 day you took your measurements?
    23 A. They're identical for both days. There
    24 were three cannons on OMC property and one cannon
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    1 set up on City of Waukegan property at the
    2 waterworks.
    3 Q. Is it your understanding that these
    4 cannons were set up the same as they were in
    5 1998 --
    6 A. That's my understanding.
    7 Q. -- for purposes of your test?
    8 A. Yes.
    9 Q. Do you know where the end of Mr. Sweda's
    10 lot is in relation to where you were on March 4th
    11 to take your test?
    12 A. From what I could observe from Gillett and
    13 also from Ridgeland to the north, it appears that
    14 his property ends about halfway between County
    15 Street and Sheridan Road.
    16 Q. So for purposes of sound measurements, is
    17 the site that you were at representative of any
    18 noise heard on Mr. Sweda's property?
    19 A. Yes. I tried to be due south of his
    20 property line.
    21 Q. And were you as close -- I mean, could you
    22 have been any closer to his property?
    23 A. Not without intruding on somebody else's
    24 property, no, I could not have been.
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    1 Q. After you set up your equipment on March
    2 4th, can you describe the methodology and what you
    3 did?
    4 A. Certainly. I set the equipment up and
    5 began sampling on March 4th. I started at
    6 approximately 4:00 o'clock and remained there until
    7 about 4:15. At this point, traffic was increasing,
    8 and I was getting calls from various people.
    9 Q. You were making phone calls?
    10 A. Yes.
    11 Q. Did you speak on the phone?
    12 A. Yes, I did.
    13 Q. Were you able to speak on the phone with
    14 the other noise going on --
    15 A. Yes.
    16 Q. -- at normal conversation?
    17 A. What do you mean by other noises? I'm
    18 sorry.
    19 Q. You said there was traffic and the cannons
    20 and there were other noises while you were speaking
    21 on the phone.
    22 A. Yes. I did have to interrupt the sound
    23 level measurements when people called.
    24 Q. What did the noise from the cannons sound
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    481
    1 like to your naked ear?
    2 A. To my ear, the cannons sounded like
    3 distant rifle fire, low caliber rifle fire.
    4 Q. And how do you know what that sounds like?
    5 A. Certainly I've taken readings in the past
    6 of rifle range -- rifle fire from sportsmen's
    7 clubs.
    8 Q. And on March 4th, can you describe what
    9 the weather was like?
    10 A. On March 4th, the temperature was close to
    11 freezing and the wind direction was out of the
    12 northeast at about five to ten miles an hour.
    13 There was no rain or snow.
    14 Q. How did you know the direction of the
    15 wind?
    16 A. I was right by a flagpole which clanked a
    17 little bit every time the wind blew, and I had to
    18 exclude those readings. That was another
    19 extraneous noise source. I also observed the
    20 smokestacks on the lake.
    21 Q. And how did you know the speed of the
    22 wind?
    23 A. I measured it with a volumeter, which is a
    24 device that measures wind speed.
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    482
    1 Q. What are the appropriate conditions for
    2 measuring sound under the relevant noise standards?
    3 A. I would reference ANSI S 1.13 which talks
    4 about optimal conditions for sound measurement, and
    5 these are no wind gradient, and this means that
    6 there's no wind, and a negative temperature
    7 gradient, and that means no temperature inversion.
    8 In other words, the temperature decreases as
    9 altitude increases from the Earth's surface.
    10 Q. Is this ANSI Standard 1.13 referenced in
    11 the Pollution Control Board regulations?
    12 A. Yes, it is.
    13 Q. Where is it referenced? Is it part of the
    14 methodology --
    15 A. Yes, it is.
    16 Q. -- you were testing for?
    17 A. Yes, it is. I don't know the exact
    18 section number.
    19 Q. Were the conditions on March 4th
    20 appropriate under this standard?
    21 A. There was a slight crosswind in relation
    22 to the noise source to the receiver. Not entirely
    23 optimal, no.
    24 Q. After you -- how long -- actually, how
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    483
    1 long were you out there on March 4th?
    2 A. About an hour and ten minutes, an hour and
    3 15 minutes or so. Traffic was increasing, and I
    4 felt that people had to go home at OMC, and I was
    5 concerned about the continued operation of cannons.
    6 Q. Again, approximately what time did you
    7 begin testing on March 4th?
    8 A. About 4:00 o'clock.
    9 Q. And about what time did you end?
    10 A. About 5:10, 5:15 or so.
    11 Q. After you finished your testing, what did
    12 you do?
    13 A. I neglected one thing. When I was
    14 conducting the measurements, prior to taking
    15 measurements, I did check the calibration of the
    16 equipment, and that also occurred after the
    17 measurements to make sure that everything was in
    18 working order and that the sound level had not
    19 drifted.
    20 Q. When you're taking measurement, do you
    21 take any notes?
    22 A. Yes. Every 30 seconds I took notes.
    23 Q. What were those notes of?
    24 A. Those were of sounds I heard in the area
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    484
    1 including the number of cannon blasts I heard.
    2 Q. And where are those notes documented?
    3 A. Those are in the back of my report.
    4 Q. As part of what?
    5 A. They're tables A and B in the back of my
    6 report.
    7 Q. What else is included on those tables?
    8 A. Those are the awaited sound levels and
    9 those would be --
    10 Q. What is the source of the information on
    11 the table A which is entitled raw data from March
    12 4th in your report?
    13 A. The source?
    14 Q. The information where the -- what's the
    15 source of the information in that table?
    16 A. That came from my readings on March 4th
    17 from the analyzer that I was operating.
    18 Q. And how did you get the readings? How did
    19 you analyze the reading that you took?
    20 A. I used an Excel spreadsheet to look at the
    21 readings and to graph them and also to -- yes.
    22 Q. Can you explain over what intervals you
    23 took the measurements?
    24 A. Every 30 seconds the analyzer with some --
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    485
    1 pardon me. Every 30 seconds, the analyzer averaged
    2 the sound levels in the area and wrote those to
    3 memory every 30 seconds and reset them and began
    4 sampling again.
    5 Q. You mentioned awaited sound. Can you
    6 explain what is awaited sound?
    7 A. Awaited sound is a waiting network that is
    8 used to approximate the human ears' response to
    9 sound because there are sound -- our ears are not
    10 linear and do not respond to sound in a linear
    11 fashion to noise, in other words, by frequency.
    12 We don't hear low frequency sounds
    13 very well. We don't hear extreme high frequency
    14 sounds very well. We hear mid-frequency sounds
    15 very well, and that corresponds to the speech
    16 range.
    17 Q. And why did you measure for awaited sound
    18 levels?
    19 A. That's specified in the Illinois Standards
    20 Part 104.
    21 Q. What is that standard for again?
    22 A. That's for impulsive noise.
    23 Q. Are the results of your measurements in
    24 this Table A you're referring to?
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    486
    1 A. They are.
    2 (OMC Exhibit No. 9 marked
    3 for identification,
    4 4-20-99.)
    5 MS. SMETANA: I'm going to show the
    6 witness -- I'm going to show the witness what's
    7 been marked as Exhibit -- OMC Exhibit No. 9.
    8 BY MS. SMETANA:
    9 Q. If you could first identify this exhibit?
    10 A. Yes. This is a copy of the report that I
    11 issued on March 23rd of this year.
    12 Q. A report of what?
    13 A. Of acoustical measurements of OMC cannon
    14 noise.
    15 Q. Does this report contain the
    16 information -- does this report contain the
    17 information -- you can have a seat -- from the
    18 March 4th and March 15th sound readings --
    19 A. Yes, it does.
    20 Q. -- that we've just been discussing?
    21 A. Yes, it does.
    22 Q. And does this report contain the data and
    23 spreadsheets you've just been discussing?
    24 A. Yes, it does.
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    487
    1 MS. SMETANA: I'm going to ask that this
    2 report be entered into evidence, Exhibit No. 9.
    3 HEARING OFFICER KNITTLE: Mr. Sweda?
    4 MR. SWEDA: No problem.
    5 MS. AAVANG: No objection.
    6 HEARING OFFICER KNITTLE: It's admitted.
    7 MS. SMETANA: I'm going to direct the
    8 witness' attention to Table A, which we've just
    9 been discussing on page six of the report.
    10 BY MS. SMETANA:
    11 Q. Mr. Homans, can you explain to me under
    12 the first column of Table A what that represents?
    13 A. The very first column, the extreme
    14 left-hand column, is the start time, and that's the
    15 start time of every 30-second block.
    16 Q. And how many 30-second blocks were there
    17 on March 4th?
    18 A. There were 137.
    19 Q. And what does the second column represent?
    20 A. The second column are my notes from the
    21 field that I typed into the spreadsheet.
    22 Q. Notes of what?
    23 A. Notes of what I heard at the site. The
    24 numbers refer to the number of cannon blasts that I
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    488
    1 heard, and if there's a notation after the number,
    2 it's --
    3 Q. What kind of notations are you referring
    4 to?
    5 A. This would be a notation such as quiet or
    6 medium or loud, and this refers to the -- it's a
    7 relative notation that I used.
    8 Q. Relative to what?
    9 A. Relative to the cannon blasts themselves
    10 and to nothing else.
    11 Q. And what else is notated in this second
    12 column in the parentheses?
    13 A. There are also -- inside the parentheses
    14 are the extraneous events that I heard, and these
    15 would include car door slams, for example, house
    16 door slams, people talking, cars passing by
    17 directly on Gillett, but not on Sheridan Road.
    18 Q. And why do you document extraneous noise?
    19 A. We are permitted to exclude those from the
    20 analysis.
    21 Q. And, lastly, what is in the very far right
    22 column of Table A, the raw data, what does that
    23 column represent?
    24 A. That represents the awaited sound level.
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    489
    1 Q. And at the very -- turning to page eight
    2 of the report, at the very -- and why did you
    3 generate a series of awaited sound levels over
    4 30-second intervals?
    5 A. Yes. This was a result of the
    6 measurements, the information that the analyzer
    7 produced.
    8 Q. Over the course of what period?
    9 A. Over the course of the 137, 30-second
    10 blocks.
    11 Q. And for purposes of determining compliance
    12 under the standard, what number do you look at?
    13 A. The standard requires 60 minutes of data,
    14 and --
    15 Q. Is it an average or a sum?
    16 A. It's an energy average of the awaited
    17 levels over the 60-minute period. I should explain
    18 that because I did not have enough data in the
    19 roughly, what, an hour and 15 minutes that I was
    20 there that there was not enough data left after
    21 taking out the extraneous events to leave 60
    22 minutes worth of sound levels.
    23 Q. What was the -- absent taking out --
    24 without taking out the extraneous sound levels,
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    490
    1 what was the average awaited level based on your
    2 March 4th readings?
    3 A. For the first 60 minutes, it was 55 DBA.
    4 Q. And where is that stated in this table?
    5 A. That's in the extreme lower right-hand
    6 corner, and the number there displayed is 55.3.
    7 Q. And what is the standard for impulsive
    8 sound?
    9 A. Fifty-six DBA daytime between land use C
    10 and A.
    11 Q. And can you explain again why this data
    12 you said it is not reflective under the standard?
    13 A. We are -- well, it's data on the site, but
    14 it also includes noise from cars and airplanes and
    15 other events which are not indicative of the
    16 ambient environment or of the cannons.
    17 Q. So why was there not enough data on March
    18 4th?
    19 A. Because we were not there for long
    20 enough. I was not there for -- I was only there
    21 for an hour and ten minutes, an hour and 15
    22 minutes.
    23 Q. Why is an hour and ten minutes not long
    24 enough?
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    491
    1 A. Because when I excluded the extraneous
    2 events, I did not have 60 seconds worth of data, 60
    3 minutes worth of data that did not include the
    4 extraneous sources.
    5 Q. After March 4th, did you take any
    6 additional measurements?
    7 A. Yes, I did. Because these measurements
    8 were taken, well, during rush hour, I requested to
    9 go back and to conduct another test on another day.
    10 Q. Was there another reason why you went back
    11 on another day?
    12 A. Yes. I was --
    13 Q. In terms of the data you needed.
    14 A. Well, certainly. I wanted to get more
    15 data so that I would have 60 minutes worth of good
    16 data without the extraneous events.
    17 Q. And is removing extraneous events, is that
    18 the requirement of the standard?
    19 A. It's permitted, yes, it is, as is a
    20 correction for ambience, the ambient noise in the
    21 area.
    22 Q. So when did you return to take additional
    23 measurements?
    24 A. That was on March 15th of this year in the
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    492
    1 morning. I started measurements a little before
    2 9:00 a.m.
    3 Q. And did you select the same location that
    4 you were at on March 4th?
    5 A. Yes, just a few feet north.
    6 Q. And why were you a few feet north?
    7 A. Well, I had problems on the 4th with the
    8 noise from the clanking lanyards on the flagpole,
    9 and so I moved a few feet north, 15 or 20 feet
    10 north. So I was in front of 226 Gillett.
    11 Q. When you say problems with the flag, what
    12 do you mean?
    13 A. Well, the wind on the 4th occasionally
    14 would cause the metal lanyards on the flagpole to
    15 clank and this created a noise, and I had to
    16 exclude those noises from the analysis.
    17 MS. SMETANA: I'm going to show the
    18 witness what has been marked Exhibit 1.
    19 BY MS. SMETANA:
    20 Q. If you can identify by putting a circle
    21 where you were on the second day and putting the
    22 date there as well.
    23 A. These points are almost coincident.
    24 (Witness complied.)
    L.A. REPORTING (312) 419-9292

    493
    1 Q. And, again, where was the location you
    2 were at on March 15th in relation to Mr. Sweda's
    3 property?
    4 A. That was due south of his property on the
    5 north side of Gillett.
    6 Q. And how close to his property was it?
    7 A. His home is about mid-block between
    8 Gillett and Ridgeland.
    9 Q. Was the sound you would hear where you
    10 were located on March 15th representative of the
    11 sound that would be heard at 923 County Street --
    12 North County Street?
    13 A. Yes, or, in fact, it would have been a
    14 little louder since it was closer to the noise
    15 source.
    16 Q. Did you follow the same methodology on
    17 March 15th that you did on March 4th in terms of
    18 setting up the site?
    19 A. Yes, I did.
    20 Q. And were the cannons located in the same
    21 spot as they were for your prior test?
    22 A. Yes. I did observe the cannons on that
    23 date from a distance. I was not at close range.
    24 Q. What was the weather on March 15th?
    L.A. REPORTING (312) 419-9292

    494
    1 A. On March 15th, it was warmer.
    2 Q. And what was the wind on that day?
    3 A. There was practically no wind. There were
    4 occasional puffs of air out of the west.
    5 Q. How did you know that the wind was calm?
    6 A. I both stood outside for a while and also
    7 measured the wind with my volumeter. I also
    8 observed the smoke coming from smokestacks as I
    9 drove from OMC up to the site on Gillett. The
    10 smoke was going straight up.
    11 Q. Were these conditions appropriate for
    12 taking sound measurements?
    13 A. Yes. They were optimal according to S
    14 1.13. As far as I know, there was no temperature
    15 inversion at that hour.
    16 Q. And was there any -- what other, if any,
    17 difference between March 4th and March 15th?
    18 A. It was in the morning instead of the
    19 afternoon. So certainly traffic from Sheridan Road
    20 was much diminished at this hour.
    21 Q. And did you -- for how long were you
    22 present on March 15th?
    23 A. For approximately an hour and a half. I
    24 believe I stated before before 9:00 o'clock, and I
    L.A. REPORTING (312) 419-9292

    495
    1 misspoke. I started around 10:00 o'clock and was
    2 there until about 11:30 or so.
    3 Q. And did you take any notes during your
    4 testing?
    5 A. Yes, I did.
    6 Q. And what did these notes report?
    7 A. Those were the same type of notes that I
    8 took on March 4th. These were the events that I
    9 heard summarized every 30 seconds.
    10 Q. And when you say the same types of events,
    11 how would you describe those events?
    12 A. Those events would be the noise from the
    13 cannon blasts, noise from extraneous events in the
    14 area such as airplanes.
    15 Q. And why was documenting these extraneous
    16 events significant?
    17 A. It's important to me to be able to
    18 correlate the results with a graph that I see.
    19 It's also permitted under the Illinois standards to
    20 exclude extraneous events.
    21 Q. After taking your measurements on March
    22 15th, did you analyze the data that you collected?
    23 A. Yes, I did in similar fashion that I did
    24 on --
    L.A. REPORTING (312) 419-9292

    496
    1 Q. Where is that raw data documented?
    2 A. That's in Appendix B of my report.
    3 Q. Is that referred to as Appendix B --
    4 A. It says Table B. I'm sorry.
    5 MS. SMETANA: I'm going to show the
    6 witness, again, Exhibit 8, page nine.
    7 BY MS. SMETANA:
    8 Q. Is this the beginning of Table B which you
    9 were just referring to?
    10 A. Yes, it is.
    11 Q. Can you read the title of, what, Table B?
    12 A. Table B is entitled raw data from March
    13 15th, 1999.
    14 Q. Did you, again, determine the awaited
    15 sound level on March 15th?
    16 A. Yes, I did. The awaited sound level for
    17 each 30 second block appears in the extreme
    18 right-hand column, and for the entire measurement
    19 period, which consisted of 181, 30 second blocks, I
    20 recorded a sound level 49.4, and just for
    21 reference, the first 60 minutes or the first 120
    22 blocks of awaited sound level was 49.3.
    23 Q. And where on Table B is that information
    24 provided?
    L.A. REPORTING (312) 419-9292

    497
    1 A. That's in the extreme lower right-hand
    2 corner of the last page.
    3 Q. Can you circle that on -- on what page of
    4 the report is that?
    5 A. It's on page 12. I've circled both
    6 numbers in blue ink.
    7 Q. Thank you.
    8 And how do these numbers compare to
    9 the impulsive sound standard?
    10 A. They were lower than the impulsive noise
    11 standard.
    12 Q. And did you analyze extraneous sound for
    13 March 15th?
    14 A. Yes, I did. At this point, because I
    15 would have 60 minutes of good data left or
    16 nonextraneous data, I was able to delete those in
    17 the spreadsheet during which extraneous events
    18 occurred.
    19 Q. And is this the methodology you described
    20 before under the Illinois standard?
    21 A. Yes.
    22 Q. Do you recall what the number was without
    23 extraneous events, if you recall the number?
    24 A. Yes, I do. It was 45 DBA.
    L.A. REPORTING (312) 419-9292

    498
    1 Q. I'm going to -- did you document that
    2 number in your report which has been marked as
    3 Exhibit 9?
    4 A. Yes, I did. I believe it's on table
    5 three.
    6 MS. SMETANA: I'm going to, again, show
    7 the witness Exhibit No. 9, and I'll refer him to
    8 page four.
    9 BY MS. SMETANA:
    10 Q. Is that table three on page four which you
    11 were just referring to?
    12 A. Yes, it is.
    13 Q. And can you, with this yellow highlighter,
    14 mark the number you just referred to without the
    15 extraneous events?
    16 A. I can. This is 45 DBA for all noise
    17 sources, and in parentheses I said includes cannons
    18 without extraneous events.
    19 Q. Why is this number significant?
    20 A. This represents the sound level due to
    21 cannons in the area without the sounds of aircraft
    22 and other extraneous events.
    23 Q. What would you use this number to show?
    24 A. This would be compared directly with the
    L.A. REPORTING (312) 419-9292

    499
    1 Illinois Pollution Control Board's standards,
    2 impulsive standards, part 104.
    3 Q. What is the impulsive standards that
    4 you're comparing it to?
    5 A. The numerical limit is 56.
    6 Q. How would you characterize this 45 in
    7 relation to the standard?
    8 A. It's much lower. There's a rule of thumb
    9 with acoustics. Every ten DBA that you reduce a
    10 noise source is equivalent to a perceived decrease
    11 of loudness of about one half.
    12 MS. SMETANA: I'm going to show the
    13 witness what has been marked Exhibit 10.
    14 (OMC Exhibit No. 10 marked
    15 for identification,
    16 4-20-99.)
    17 BY MS. SMETANA:
    18 Q. What does that Exhibit 10 reflect?
    19 A. That's table three from my report.
    20 Q. Is that -- can you just -- is that the
    21 same table that appears on page four of your
    22 report?
    23 A. Yes, it is.
    24 Q. And on Exhibit 10, can you, again,
    L.A. REPORTING (312) 419-9292

    500
    1 highlight with this yellow marker the measurement
    2 without extraneous events? All noise sources
    3 including cannons, but without extraneous events,
    4 what is that number?
    5 A. Forty-five DBA.
    6 Q. Does this table reference what -- at the
    7 bottom of column 26, this table, the last row, is
    8 stated what number?
    9 A. I give the section of the Illinois
    10 Pollution Control Board code, which is 901.104.
    11 Q. What does that section contain standards
    12 for?
    13 A. That's the impulsive noise section.
    14 Q. What number is right above that?
    15 A. Fifty-six.
    16 Q. So would you compare the 45 to the 56 --
    17 A. Yes.
    18 Q. -- for purposes of determining compliance?
    19 A. Yes, I would.
    20 MS. SMETANA: I'm going to ask that
    21 Exhibit 10 be admitted into evidence.
    22 HEARING OFFICER KNITTLE: Exhibit 10 is
    23 admitted. Excuse me. Mr. Sweda, do you have any
    24 objection to Exhibit 10?
    L.A. REPORTING (312) 419-9292

    501
    1 MR. SWEDA: No.
    2 HEARING OFFICER KNITTLE: Okay. Exhibit
    3 10 is admitted.
    4 BY MS. SMETANA:
    5 Q. With the sound measurements you took on
    6 March 15th, did you do any further analysis?
    7 A. No, I did not.
    8 Q. Did you look at the ambient noise?
    9 A. Yes, I did. Like I said, I misspoke by
    10 saying I did not. This is for a reference purpose
    11 for me, and the Illinois standards also allow you
    12 to correct or normalize for the effects of the
    13 ambient environment.
    14 Q. And what would the -- what is the ambient
    15 environment?
    16 A. This is the normal background in the
    17 area. For this item, it would be the sound due to
    18 the industry in the area and traffic on Sheridan
    19 Road.
    20 Q. And what's excluded from the ambient
    21 sound?
    22 A. That would be so-called extraneous events
    23 such as brief airplane fly-overs, people walking up
    24 and talking to you.
    L.A. REPORTING (312) 419-9292

    502
    1 Q. Anything else excluded?
    2 A. Birds squawking overhead, cars passing
    3 directly by you on the street.
    4 Q. How do the cannons -- the noise from the
    5 cannons qualify with respect to ambient noise?
    6 Would those be excluded?
    7 A. Your question deals with ambient noise --
    8 Q. Yes.
    9 A. -- or extraneous noise?
    10 Q. Ambient noise. What was excluded from
    11 your measurement of ambient noise?
    12 A. Those extraneous noise sources were
    13 excluded from the ambient measurements.
    14 Q. Is the noise from the cannon an extraneous
    15 noise source for purposes of sound measurements?
    16 A. For purposes of ambient, yes, that was
    17 excluded.
    18 Q. And what was, for purposes of ambient, the
    19 number that you arrived at based on your analysis?
    20 A. If could you refresh my memory by showing
    21 me the table again.
    22 Q. I'm going to show you the table three on
    23 Exhibit 10.
    24 A. That awaited sound level is 44 DBA.
    L.A. REPORTING (312) 419-9292

    503
    1 Q. And why is the 44 number significant
    2 compared to the 45 number of the noises that
    3 included the cannons?
    4 A. It's less than the noises of the cannons,
    5 although not that much less.
    6 Q. So what does that show?
    7 A. It shows that there's -- under this
    8 measurement procedure, the cannons have a small
    9 effect on increasing the ambient. If I may -- if I
    10 may restate that. The cannons have a minimal
    11 impact on the sound level according to the Illinois
    12 standards.
    13 Q. Can you generally describe the sound
    14 you're listening for when you're taking the
    15 measurements?
    16 A. You're referring to the sound of the
    17 cannons?
    18 Q. Yes.
    19 A. Yes, I can because I heard the cannon
    20 firing at close range. I was able to identify its
    21 signature, how it sounded.
    22 Q. What did it sound like from when you were
    23 at the location of your sound measurements?
    24 A. Well, as I stated before, it did sound
    L.A. REPORTING (312) 419-9292

    504
    1 like distant low caliber rifle fire. It also
    2 sounded a little bit like cars passing over a bad
    3 expansion joint on Sheridan Road. From time to
    4 time, a car would hit the expansion joint just
    5 right and produce an impulsive noise that was
    6 similar, although not identical to the reports from
    7 the cannons.
    8 Q. Could you hear the sound well from where
    9 you were standing?
    10 A. On the 15th -- on March 15th, I could hear
    11 it fairly well, but you've got remember with the
    12 operation of the cannons that they're pointing in
    13 random directions, at least the three OMC cannons
    14 are, and so sometimes the noise from the cannons is
    15 louder or quieter than at other times.
    16 Q. You mentioned before extraneous sounds.
    17 What was included in extraneous sounds, examples?
    18 A. Again, aircraft, train noise I heard and
    19 documented. I had a noisy crow, I believe, on the
    20 15th that was right overhead.
    21 Q. From where you were standing for your
    22 sound measurements, how did the noise of airplanes
    23 compare to the noises you heard from the cannons?
    24 A. The noise of airplanes was greater than
    L.A. REPORTING (312) 419-9292

    505
    1 the noise I heard from cannons.
    2 Q. And what about you said you heard noise
    3 from cars. How did that compare to the noise from
    4 the cannons?
    5 A. It was much greater since the cars were
    6 passing close by.
    7 Q. Which was greater?
    8 A. The noise from cars.
    9 Q. What is the decibel level of normal
    10 conversation of human beings?
    11 A. Well, this depends on distance naturally,
    12 and for an awaited sound level of two people
    13 talking, say, at four or five feet away, it would
    14 be in the neighborhood of 60 DBA, 65 DBA or so.
    15 Q. And how does that number compare to the
    16 measurement, the 45 DBA, you took on March 15th,
    17 the sound level?
    18 A. Well, on an average, energy average basis,
    19 it would be about 15 or 20 DB greater than the
    20 noise --
    21 Q. Which would be greater?
    22 A. The noise of conversation between two
    23 people about five feet away.
    24 Q. Would be greater than what?
    L.A. REPORTING (312) 419-9292

    506
    1 A. Greater than the noise of cannons.
    2 Q. That you heard when you were where?
    3 A. On March 15th.
    4 Q. At what location?
    5 A. At 226 Gillett.
    6 Q. Based on your experience, what factors
    7 affect the way sound is carried?
    8 A. A number of factors would influence this,
    9 wind speed and direction.
    10 Q. How does wind direction affect sound?
    11 A. In layman's terms, as everyone has
    12 experienced, receivers downwind from a source
    13 generally hear sound better than observers upwind.
    14 This is due to velocity gradients, and that's fancy
    15 language for meaning that the speed of sound has
    16 changed in one direction versus another.
    17 Q. And does wind speed affect sound?
    18 A. Yes, it does. As the speed picks up,
    19 generally if you're directly downwind, the noise
    20 from a noise source is increased up to a point.
    21 Q. Under what wind conditions does the
    22 standard require taking down measurement readings
    23 for impulsive sound?
    24 A. ANSI 1.13 states that you should not take
    L.A. REPORTING (312) 419-9292

    507
    1 sound level readings above a wind speed of 13 miles
    2 an hour, and that is due primarily to the effects
    3 of the wind on a microphone and the wind screen.
    4 Q. What are the optimal conditions of wind in
    5 terms of taking sound measurements?
    6 A. No wind.
    7 Q. And what was the wind speed on March 15th
    8 when you took your sound readings?
    9 A. On March 15th, I could not measure the
    10 wind speed.
    11 Q. Why not?
    12 A. It was calm. There were occasional puffs
    13 of air, but it was essentially calm. I could not
    14 measure it.
    15 Q. Does topography have any affect on sound?
    16 A. Yes, it does.
    17 Q. How may a 60 to 100 foot bluff in the
    18 Waukegan area affect sound?
    19 A. Well, it depends on the relationship of
    20 the source to the receiver. In this case, I would
    21 expect some attenuation of reduction in sound as
    22 compared with a flat surface.
    23 Q. Where is the noise source in this case in
    24 relation to the bluff?
    L.A. REPORTING (312) 419-9292

    508
    1 A. In this case, the noise is being generated
    2 on the coke plant site, which is at approximately
    3 the level of the lake.
    4 Q. Which is what, what elevation?
    5 A. I'm not sure, but it's -- in terms of feet
    6 above sea level, but it's about 60 feet lower than
    7 the top of the bluff on which 226 Gillett and
    8 Mr. Sweda's property are located.
    9 Q. So in terms of hearing the sound of the
    10 receiving source on top of the bluff, what would be
    11 the effect of the bluff in respect to the noise
    12 source?
    13 A. In my opinion, it would be reduced
    14 primarily because you don't have good line of sight
    15 between the source and the receiver.
    16 Q. And so what is the effect of the bluff?
    17 A. It has an effect of shielding or reducing,
    18 attenuating the noise coming from the cannons.
    19 Q. When you took the sound measurements on
    20 both March 4th and March 15th, how long were you
    21 there each time?
    22 A. About an hour and 15 minutes actual
    23 recording time on the 4th and a little over an hour
    24 and a half on the 15th.
    L.A. REPORTING (312) 419-9292

    509
    1 Q. Were you alone?
    2 A. Yes, I was.
    3 Q. Did you speak to anyone at either time?
    4 A. Yes, I did. When you're taking sound
    5 level readings, you desire it to be as quiet as
    6 possible, and it's Murphy's law, I guess, that
    7 someone always comes up and asks you what you're
    8 doing, and that's another reason why I try to
    9 remain in my car so I'm not visible, but people see
    10 the microphone and they always come up and ask what
    11 I'm doing.
    12 Q. When you spoke to people, what tone of
    13 voice did you speak to them at?
    14 A. Normal tone of voice.
    15 Q. This was while the noise from the cannons
    16 was occurring?
    17 A. Yes.
    18 Q. When you were in the neighborhood of the
    19 receiving source on March 4th and March 15th, did
    20 you notice anyone acting differently when the noise
    21 from the cannons occurred?
    22 A. No, I did not.
    23 Q. When you took the test on both March 4th
    24 and March 15th, you observed OMC set up the
    L.A. REPORTING (312) 419-9292

    510
    1 premises?
    2 A. On the 4th only.
    3 Q. Well, how many cannons were used at that
    4 time?
    5 A. Three cannons on OMC property and one on
    6 the City of Waukegan property.
    7 Q. And how was it determined how many cannons
    8 were to be used?
    9 A. It's my understanding that they wanted to
    10 replicate the conditions when the complaint was
    11 filed in 1998.
    12 Q. And to the best of your knowledge, were
    13 these conditions replicated on March 4th and 15th
    14 when you took your sound readings?
    15 A. As far as I know, yes.
    16 Q. And on March 15th, the cannons were set up
    17 the same way as they were on March 4th?
    18 A. Yes, they were. I did not observe them at
    19 close range as I did on the 4th, but I did drive by
    20 and see them and also hear them.
    21 Q. If there were two cannons instead of four
    22 cannons, how might that affect the sound level
    23 measurements you took based on your opinion?
    24 A. That may reduce the sound level as much as
    L.A. REPORTING (312) 419-9292

    511
    1 three DB.
    2 Q. If the cannons were fired at less frequent
    3 intervals than they were on March 15th, how may
    4 that, based on your opinion, affect the sound
    5 measurement readings?
    6 A. That would reduce the awaited sound level
    7 over a 60-minute period, and this is due to the
    8 amount of energy that the cannons are contributing.
    9 Q. So if the cannon only went off once in a
    10 60-minute period, how would that affect the
    11 measurements taken over that 60-minute period?
    12 A. The sound level should be very much
    13 reduced because one cannon blast would be averaged
    14 over the 60-minute period as is required by the
    15 Pollution Control Board standards.
    16 Q. Do you know when you're taking your sound
    17 level readings approximately how many times the
    18 cannons -- you heard the cannons go off during that
    19 60-minute period?
    20 A. I would estimate, perhaps, 25, 30 times,
    21 although those are listed in my notes.
    22 Q. So your notes mean the raw data?
    23 A. Yes, and Tables A and B of the report.
    24 Q. So if that number -- if that frequency of
    L.A. REPORTING (312) 419-9292

    512
    1 cannon shots was reduced, what would be the effect?
    2 A. That would reduce the awaited sound level
    3 that was measured.
    4 MS. SMETANA: I have no further questions
    5 for this witness.
    6 HEARING OFFICER KNITTLE: Ms. Aavang, do
    7 you have any questions?
    8 MS. AAVANG: Nothing.
    9 HEARING OFFICER KNITTLE: Mr. Sweda, do
    10 you have a cross-examination?
    11 MR. SWEDA: Yes, I have some questions.
    12 HEARING OFFICER KNITTLE: Proceed.
    13 MS. SMETANA: Could I, for the record,
    14 clarify? I'd like to, if I haven't, move to admit
    15 Exhibit 10 into evidence. I don't recall.
    16 HEARING OFFICER KNITTLE: That's already
    17 been admitted.
    18 MS. SMETANA: Thank you.
    19 C R O S S - E X A M I N A T I O N
    20 by Mr. Sweda
    21 Q. Mr. Homan?
    22 A. Homans with an S.
    23 Q. Oh, I'm sorry. Homans.
    24 Do you recall the total real-time
    L.A. REPORTING (312) 419-9292

    513
    1 that you recorded the sound during measurements
    2 both on the 4th and the 15th?
    3 A. Yes. On the -- a little over an hour, an
    4 hour and 15 minutes or so on the 4th, and closer to
    5 an hour, hour and a half on the 15th.
    6 Q. I'm interested in the question about part
    7 of your report on the first page.
    8 MS. SMETANA: May I give the witness the
    9 report for him to look at it?
    10 HEARING OFFICER KNITTLE: Would that help,
    11 Mr. Sweda?
    12 MR. SWEDA: I'm sorry. What?
    13 MS. SMETANA: Would it help if the witness
    14 had a copy of a report in front of him?
    15 MR. SWEDA: I assumed he had it.
    16 MS. SMETANA: He doesn't.
    17 MR. SWEDA: Oh.
    18 MS. SMETANA: Let me get a copy.
    19 HEARING OFFICER KNITTLE: Do you need the
    20 report to testify?
    21 THE WITNESS: I haven't heard the question
    22 yet.
    23 MS. SMETANA: Well, we'll hear the
    24 question first.
    L.A. REPORTING (312) 419-9292

    514
    1 HEARING OFFICER KNITTLE: I can hand it to
    2 him.
    3 BY MR. SWEDA:
    4 Q. Do you remember the basis for your
    5 statement that in paragraph -- the second paragraph
    6 from the bottom that this is the approximate
    7 interval being used during the complaint period?
    8 A. Yes. That's what was stated to me by the
    9 people running the test from OMC.
    10 Q. Okay. Thank you.
    11 A. And as I recall, this is on the order of
    12 ten minutes for each cannon.
    13 Q. Whatever -- yeah. What you said is
    14 adequate. You indicated in your testimony -- I
    15 can't remember where it was. I couldn't understand
    16 most of it because it's highly technical, but I
    17 enjoyed it.
    18 Might wind be -- you mentioned
    19 smokestacks. My question is to you is might winds
    20 be different from the smokestacks that you saw than
    21 at the site of the receiving --
    22 A. Certainly they may, and that's why I was
    23 outside my car and also trying to conduct wind
    24 measurements at that time, and there was no wind
    L.A. REPORTING (312) 419-9292

    515
    1 speed to measure when I was outside the car.
    2 Q. Might the readings that you took at the
    3 site, you took, be different than the readings if
    4 you took them, the same readings, even at the same
    5 time from my property or the property of Mr. Neff's
    6 on Stewart Avenue?
    7 MS. SMETANA: I'm going to object in that
    8 this has already been asked and answered. The
    9 witness has testified that the location of where he
    10 took the measurements was representative of the
    11 receiving source.
    12 HEARING OFFICER KNITTLE: Overruled. You
    13 can answer the question.
    14 BY THE WITNESS:
    15 A. As I understand your question, from where
    16 I took the measurements on Gillett as compared to
    17 your property, because we were closer to the noise
    18 source, if anything, it would be a little less,
    19 although not much less than what the sound level
    20 would be on your property.
    21 BY MR. SWEDA:
    22 Q. Are there differences in the
    23 characteristics of the site that you used versus my
    24 property in terms of extraneous material or is
    L.A. REPORTING (312) 419-9292

    516
    1 there anything different about my property in terms
    2 of its location?
    3 A. Well, I was not on your property, but from
    4 what I could observe from Gillett and also -- well,
    5 from Gillett that there were certainly at least one
    6 row of houses on Gillett between my measurement
    7 position and your property. I don't recall if the
    8 topography was any different in your backyard.
    9 Q. Do you know how deep my backyard is?
    10 A. I believe it runs halfway between County
    11 and Sheridan.
    12 Q. And is that backyard location comparable
    13 to the location that you took your measurements on
    14 in terms of street-wise?
    15 A. Yes. It's due south. It looks like the
    16 traffic on Gillett is a little bit less than on
    17 County, but I was closer to Gillett than your
    18 backyard is to County. However, I was able to take
    19 out the extraneous events on Gillett.
    20 Q. Okay. Are there any other places in terms
    21 of the study that you took noise measurements on
    22 those dates or any other dates?
    23 A. No.
    24 Q. Was there anything that determined the
    L.A. REPORTING (312) 419-9292

    517
    1 time or the dates that you would take these
    2 measurements or did you determine them yourself?
    3 A. The March 4th date I had to coordinate
    4 with OMC by getting there. I also wanted a date in
    5 which there was no rain or snow falling on that
    6 date. So this date was selected in conjunction
    7 with OMC, but it was closely after I was -- after
    8 the period that I was retained. On the 15th, I
    9 requested to go back and, as I recall, I set the
    10 date.
    11 Q. Who did you request on the 15th? You said
    12 you requested to go back.
    13 A. Yes. I requested that from the people at
    14 OMC.
    15 MR. SWEDA: Okay. Thank you.
    16 MS. SMETANA: I just have -- are you
    17 finished?
    18 HEARING OFFICER KNITTLE: Are you
    19 finished, Mr. Sweda?
    20 MR. SWEDA: Yes.
    21 HEARING OFFICER KNITTLE: Go ahead,
    22 Ms. Smetana.
    23 MS. SMETANA: I just have a few questions
    24 for you on redirect.
    L.A. REPORTING (312) 419-9292

    518
    1 R E D I R E C T E X A M I N A T I O N
    2 by Ms. Smetana
    3 Q. The measurement sites that you were at on
    4 March 4th and March 15th, approximately how close
    5 were you to Mr. Sweda's property, his backyard?
    6 A. Within a half block, less than a half
    7 block.
    8 Q. Is Mr. Sweda's house private property?
    9 A. Yes.
    10 Q. Did you have access to Mr. Sweda's
    11 backyard?
    12 A. No, I did not.
    13 Q. Between Mr. Sweda's backyard and where you
    14 were standing, was there anything but private
    15 property?
    16 A. That's correct. It was only private
    17 property. There was no alley.
    18 Q. And where was the site at which you took
    19 your measurements on March 15th, what direction was
    20 it from Mr. Sweda's property?
    21 A. Due south of his east property line.
    22 Q. And where was this site that you took the
    23 measurement in relation to OMC's facility?
    24 A. It was --
    L.A. REPORTING (312) 419-9292

    519
    1 Q. Was it closer or further away from
    2 Mr. Sweda's property?
    3 A. It was closer.
    4 Q. Closer to what?
    5 A. To OMC than Mr. Sweda's property by about
    6 a half block.
    7 MS. SMETANA: I have nothing further.
    8 HEARING OFFICER KNITTLE: Ms. Aavang?
    9 MS. AAVANG: Nothing.
    10 HEARING OFFICER KNITTLE: Mr. Sweda?
    11 R E C R O S S - E X A M I N A T I O N
    12 by Mr. Sweda
    13 Q. My question is did you actually measure
    14 where the cannons were on both of those dates and
    15 then measure to make the statement that you just
    16 did back to where your site was when you were
    17 taking the noise measurements to, in fact, then
    18 compare them to my property line to come up with
    19 your statement that it is approximately a half a
    20 block?
    21 A. In terms of measurement by pacing or
    22 measurement of sound levels? I don't understand
    23 your question.
    24 Q. By distance, how did you measure the
    L.A. REPORTING (312) 419-9292

    520
    1 distance?
    2 A. No, I did not measure. I observed a map.
    3 Q. Okay.
    4 MS. SMETANA: I guess -- I would like
    5 to -- would you clarify that question.
    6 MR. SWEDA: My question was --
    7 HEARING OFFICER KNITTLE: Hold on. What's
    8 wrong with his question? I mean, number one, the
    9 witness has already answered it, but if you have an
    10 objection, I'd be happy to let you state it.
    11 MS. SMETANA: I object. I think it was a
    12 compound question. It just wasn't clear to me.
    13 HEARING OFFICER KNITTLE: Did you
    14 understand the question, sir?
    15 THE WITNESS: I believe I did, yes.
    16 HEARING OFFICER KNITTLE: Mr. Sweda, was
    17 his answer sufficient?
    18 MR. SWEDA: It was sufficient.
    19 HEARING OFFICER KNITTLE: Do you have any
    20 redirect on that question?
    21 R E D I R E C T E X A M I N A T I O N
    22 by Ms. Smetana
    23 Q. Were you at your site of measurement when
    24 you took the measurements?
    L.A. REPORTING (312) 419-9292

    521
    1 A. Yes, for the entire period.
    2 Q. And did you observe Mr. Sweda's property?
    3 A. Yes. I could see Mr. Sweda's property,
    4 perhaps, not from my van, but when I stepped out of
    5 my car.
    6 Q. Did you have occasion to walk down County
    7 Street to Gillett?
    8 A. Yes.
    9 Q. And how do you know the length of half a
    10 block?
    11 A. I've driven past. I did not walk past
    12 Mr. Sweda's property, but I drove past. His house
    13 is five or six houses north of where I was.
    14 Q. So from your observation, it was half a
    15 block?
    16 A. Yes.
    17 MS. SMETANA: Thank you.
    18 HEARING OFFICER KNITTLE: You can step
    19 down, sir.
    20 THE WITNESS: Thank you.
    21 HEARING OFFICER KNITTLE: Are there any
    22 other witnesses for OMC?
    23 MS. SMETANA: No.
    24 HEARING OFFICER KNITTLE: Okay. Thank you
    L.A. REPORTING (312) 419-9292

    522
    1 very much. We're going to move on to the City of
    2 Waukegan's case.
    3 How many witnesses do you have?
    4 MS. AAVANG: I've got two here right now
    5 and I've got one more coming. I told him 4:00
    6 o'clock, which turns out to be pretty accurate, and
    7 he should only be like ten minutes. Mr. Pfister,
    8 who's over here, will probably be ten to 15.
    9 HEARING OFFICER KNITTLE: Do you need some
    10 time before we get started?
    11 MS. AAVANG: No. I can hit the road and
    12 get us going.
    13 HEARING OFFICER KNITTLE: Let's call your
    14 first witness then.
    15 MS. AAVANG: The City of Waukegan -- well,
    16 it's the second witness actually.
    17 HEARING OFFICER KNITTLE: That's true. My
    18 error.
    19 MS. AAVANG: The City of Waukegan will
    20 call Mark Pfister.
    21 HEARING OFFICER KNITTLE: Mr. Pfister, you
    22 can have a seat.
    23 (Brief pause.)
    24 HEARING OFFICER KNITTLE: We're ready to
    L.A. REPORTING (312) 419-9292

    523
    1 go. You can call your second witness.
    2 MS. AAVANG: Would you please state your
    3 name and spell your last name for the record?
    4 MR. PFISTER: My name is Mark Pfister.
    5 HEARING OFFICER KNITTLE: Excuse me. Have
    6 you sworn him in?
    7 THE REPORTER: No.
    8 HEARING OFFICER KNITTLE: Let's swear him
    9 in. I didn't know if she had done that or not. Can
    10 you swear him in, please?
    11 (Witness sworn.)
    12 WHEREUPON
    13 M A R K P F I S T E R,
    14 called as a witness herein, having been first
    15 duly sworn, deposeth and saith as follows:
    16 D I R E C T E X A M I N A T I O N
    17 by Ms. Aavang
    18 Q. Mr. Pfister, where do you reside?
    19 A. I reside in Waukegan, Illinois at 1006
    20 Rogers Court.
    21 Q. Thank you.
    22 And who are you employed by?
    23 A. I'm employed by the Lake County Health
    24 Department which is in Waukegan, Illinois.
    L.A. REPORTING (312) 419-9292

    524
    1 Q. What is your position with the Lake County
    2 Health Department?
    3 A. My job title is aquatic biologist.
    4 Q. What do your responsibilities include?
    5 A. I'm the supervisor of the lakes management
    6 units, which oversees all the freshwater resources
    7 in Lake County.
    8 Q. Would that include the beaches?
    9 A. That includes nine Lake Michigan beaches
    10 along our 26 miles of Lake Michigan waterfront.
    11 Q. Turning your attention to particularly the
    12 Waukegan area, there's two beaches in the Waukegan
    13 area; is that correct?
    14 A. Correct, Waukegan South and Waukegan
    15 North.
    16 Q. Which beach would be immediately across
    17 from the OMC facility and the Waukegan water plant?
    18 A. Immediately across would be Waukegan
    19 South.
    20 Q. As to that beach, what are your
    21 responsibilities or your department's
    22 responsibilities?
    23 A. Our department is contracted by the City
    24 of Waukegan to monitor the Waukegan North and
    L.A. REPORTING (312) 419-9292

    525
    1 Waukegan South beach from Memorial Day to Labor Day
    2 from Thursday through Sunday. That's four days per
    3 week for fecal coliform bacteria, which is an
    4 indicator organism of other potential pathogens
    5 that may cause gastrointestinal illness.
    6 Q. And when the health department does that
    7 monitoring just in addition to collecting the data,
    8 do you do anything else other than collect the
    9 data?
    10 A. Well, certainly when the staff is on site
    11 at the bathing beaches, we make observations with
    12 regard to wind, wind speed, rainfall from the
    13 previous day, or just conditions at the bathing
    14 beach, whether there's algae present or just
    15 conditions such as gull feces.
    16 Q. Does your department make the
    17 determination whether a beach will be opened or
    18 closed for a particular bathing day?
    19 A. Yes, because we follow the Illinois
    20 Department of Public Health bathing beach standards
    21 with regard to closure of bathing beaches, and the
    22 fecal coliform standard is 500 organisms per 100
    23 milliliters. So if a sample has a coliform
    24 concentration higher than that, then we would
    L.A. REPORTING (312) 419-9292

    526
    1 recommend closure of that bathing beach.
    2 Q. Has that standard changed at all, let's
    3 say, from 1990 to the present?
    4 A. No. The fecal coliform standard has
    5 remained the same.
    6 Q. Has there been a difference in
    7 standards -- a change in standards as to when a
    8 beach will be closed?
    9 A. What has transpired is in 1998 was rather
    10 than the previous closure warning system from IDPH
    11 used to be that if there's a sample higher than
    12 500, then we would place the beach on warning.
    13 Then if the next day sample was higher than 500,
    14 then we would close the beach, but in 1998, we
    15 changed our recommendation so that if there was a
    16 sample higher than 500, then we would recommend
    17 immediate closure.
    18 Q. What generated that change?
    19 A. Well, what generated that change was a
    20 change in the state standards.
    21 (City of Waukegan Exhibit No. 1
    22 marked for identification,
    23 4-20-99.)
    24
    L.A. REPORTING (312) 419-9292

    527
    1 BY MS. AAVANG:
    2 Q. Showing you what I've marked as City of
    3 Waukegan Exhibit No. 1 for identification it's six
    4 pages, and I'll show it to Mr. Sweda.
    5 MR. SWEDA: What is it?
    6 MS. AAVANG: It's a fecal count.
    7 MR. SWEDA: I object because I've never
    8 seen this before. This is a new -- it's a surprise
    9 on me.
    10 HEARING OFFICER KNITTLE: I'm going to
    11 overrule the objection. As long as she lays the
    12 appropriate foundation, I'll let this into
    13 evidence.
    14 BY MS. AAVANG:
    15 Q. Showing you what I've marked as City of
    16 Waukegan Exhibit No. 1, can you tell me what that
    17 document is?
    18 A. Yes. This is a summary document of the
    19 fecal coliform concentrations for 1997 for Waukegan
    20 North and South beaches and also for Lake Bluff and
    21 also for 1998 Waukegan North and Waukegan South and
    22 Lake Bluff.
    23 Q. And the data generated on that, is that
    24 data from your office?
    L.A. REPORTING (312) 419-9292

    528
    1 A. Yes, it is.
    2 Q. And is that, indeed, a document that your
    3 office generated?
    4 A. Yes, it is.
    5 Q. And are those records that your office
    6 would normally keep in the course of what you do
    7 for the beaches in terms of fecal count?
    8 A. Yes. This would be a record that we would
    9 keep, and then we pass this information to all the
    10 bathing beach operators.
    11 MS. AAVANG: I'd ask that it be admitted
    12 into evidence.
    13 HEARING OFFICER KNITTLE: Mr. Sweda, do
    14 you have a continuing objection?
    15 MR. SWEDA: No.
    16 MS. SMETANA: No objection.
    17 HEARING OFFICER KNITTLE: That will be
    18 admitted into evidence.
    19 BY MS. AAVANG:
    20 Q. Referring to that document, if you will,
    21 Mr. Pfister, how many beach closings were there for
    22 Waukegan South in 1997?
    23 A. Well, in 1997, there was 20 days of
    24 closure and 14 days of warning, but by our new
    L.A. REPORTING (312) 419-9292

    529
    1 system of closure in 1998, there would have been 34
    2 closures.
    3 Q. Because you would no longer have the
    4 warning days?
    5 A. Correct.
    6 Q. And you indicated on that same page there
    7 are two other beaches, is that correct, that you
    8 have information from?
    9 A. Yes.
    10 Q. And what are those other two beaches?
    11 A. One is Waukegan North and the other one is
    12 the Lake Bluff Sunrise Beach.
    13 Q. Where is Waukegan North in relation to
    14 Waukegan South beach?
    15 A. Waukegan North is just north of the break
    16 wall that separates the north and south beaches.
    17 So you have the Government Pier and there's two
    18 break walls and then at the north side of that
    19 break wall is the Waukegan North beach.
    20 Q. And where is the Lake Bluff beach located?
    21 A. The Lake Bluff beach is located in Lake
    22 Bluff, Illinois. Sunrise beach is right in pretty
    23 much the center of Lake Bluff.
    24 Q. Now, you indicated -- why are those three
    L.A. REPORTING (312) 419-9292

    530
    1 put together? Is that --
    2 A. Well, they're only put together for --
    3 because it saves us paper when we print out the
    4 data.
    5 Q. Now, what were the closures in 1997 for
    6 the Waukegan North beach?
    7 A. The closures for the Waukegan North, we
    8 had six days closed and seven days on warning.
    9 Q. And what about the Lake Bluff beach?
    10 A. The Lake Bluff beach we had two warning
    11 days, but no closures.
    12 Q. Mr. Pfister, you're an aquatic biologist;
    13 is that correct?
    14 A. Yes.
    15 Q. And part of your job is to interpret that
    16 data; is that correct?
    17 A. Uh-huh.
    18 Q. Based on your position and your education,
    19 do you have any opinion as to why the closure was
    20 higher for the Waukegan South beach as compared to,
    21 excuse me, Waukegan North and Lake Bluff?
    22 A. I'll answer that in two different ways.
    23 One is the proximity of Waukegan South and the
    24 break water -- the break walls that are positioned
    L.A. REPORTING (312) 419-9292

    531
    1 there is that there's not as much wave action or
    2 wave action to dilute the concentrations of fecal
    3 coliform organisms that the water has held inside
    4 those break walls. Whereas, at the Lake Bluff
    5 beach and the Waukegan North beaches are more open
    6 to the lake. So they get more wind and wave action
    7 to sweep material back out to the lake.
    8 So that's one difference. The second
    9 difference is is the Lake Bluff and Waukegan North,
    10 when we have been sampling, we have not observed
    11 the same population of gulls nor have we observed
    12 the same quantity of fecal material on the bathing
    13 beaches at those other two locations compared to
    14 Waukegan South.
    15 Q. So it is your testimony that the gull
    16 population is a factor in the entire fecal count in
    17 1997?
    18 A. Yes.
    19 Q. Going back to that document, there's also
    20 counts in there for 1998; is that correct?
    21 A. That's correct.
    22 Q. And for 1998, how many closures were there
    23 at Waukegan South?
    24 A. At Waukegan South, there was seven
    L.A. REPORTING (312) 419-9292

    532
    1 closures.
    2 Q. And what about Waukegan North?
    3 A. There was one closure.
    4 Q. And what about Lake Bluff?
    5 A. Zero closures.
    6 Q. So there is actually a drop in 1998 from
    7 1997; is that correct?
    8 A. Yes, that is correct.
    9 Q. Okay. And do you have any opinion as to
    10 what the cause of that drop was?
    11 A. Yes. My opinion was that with the gulls
    12 being moved from the dune area and OMC property
    13 over to the Lafarge Gypsum Hills that it's our
    14 believe that we saw less fecal material on the
    15 Waukegan South bathing beach in 1998 than we did in
    16 1997 due to the movement of the gulls to the other
    17 side of the harbor.
    18 Q. Have you personally in 1997 and '98
    19 observed the gull population?
    20 A. Yes, I have.
    21 Q. And is that in connection with your
    22 position at the health department?
    23 A. In -- one in the sense of my position at
    24 the health department, but also I spend a lot of
    L.A. REPORTING (312) 419-9292

    533
    1 time on the weekends down at Waukegan South and
    2 Waukegan North bathing beaches walking my dog.
    3 (City of Waukegan Exhibit No. 2
    4 marked for identification,
    5 4-20-99.)
    6 BY MS. AAVANG:
    7 Q. Showing you City of Waukegan Exhibit for
    8 identification No. 2, can you tell me what that
    9 document is?
    10 A. These are letters that I've -- every year
    11 we send a summary of what has occurred on the Lake
    12 Michigan bathing beaches to the Illinois
    13 Environmental Protection Agency. So these are
    14 letters -- summary letters that I've sent to Bob
    15 Sharpe.
    16 Q. Who is with the IEPA?
    17 A. Correct.
    18 Q. And is that basically a summary of some of
    19 the data that you've already shown us in Exhibit 1?
    20 A. Correct. The Illinois Environmental
    21 Protection Agency is interested in the bathing
    22 beach coliform counts on an annual basis that we
    23 collect. So what I do is summarize for the IEPA
    24 each year the number of closures or warnings that
    L.A. REPORTING (312) 419-9292

    534
    1 we've had over the years.
    2 MS. AAVANG: I'd ask that Exhibit No. 2 be
    3 admitted into evidence.
    4 HEARING OFFICER KNITTLE: Mr. Sweda?
    5 MR. SWEDA: Okay.
    6 MS. SMETANA: No objections.
    7 HEARING OFFICER KNITTLE: That's admitted.
    8 BY MS. AAVANG:
    9 Q. Mr. Pfister, just to clarify, when do you
    10 actually start or someone from your office actually
    11 start taking samples at the beaches?
    12 A. They either -- it's directly before
    13 Memorial Day weekend or directly on Memorial Day
    14 weekend that we start sampling.
    15 Q. And I think you indicated earlier it's
    16 four days a week that the sampling is done?
    17 A. Right. Thursday through Sunday.
    18 Q. Is there a reason that Monday and Tuesday
    19 aren't done?
    20 A. Only -- yes, and that's staffing.
    21 Q. Okay. So it's not anything to do with the
    22 readings themselves, just a staffing issue?
    23 A. Actually, Monday, Tuesday, and Wednesday
    24 are not done, yes.
    L.A. REPORTING (312) 419-9292

    535
    1 Q. The next question would be then how would
    2 we know whether or not a beach should be closed
    3 Monday, Tuesday, or Wednesday?
    4 A. Unfortunately, we don't.
    5 Q. So you may actually have a beach opened
    6 during that -- you may actually have a beach opened
    7 during a time when the fecal count may be higher?
    8 A. Yes.
    9 Q. Do you rely -- does your department rely
    10 at all upon the lifeguards that are down at the
    11 beaches to assist in advising you of conditions
    12 that maybe your department should be aware of?
    13 A. Yes. Certainly, the City of Waukegan's
    14 lifeguards will give us a call if they have, for
    15 example, dead gulls on the bathing beach or if they
    16 notice something unusual that they would call us
    17 and inform us, and then generally what we'll do is
    18 we'll go out and sample on that day.
    19 Q. Do you recall in 1997 getting any
    20 information from any of the lifeguards at the beach
    21 that there seemed to be an increased number of dead
    22 gulls at the beach site?
    23 A. Yes, I do.
    24 Q. Okay. And did you receive any similar
    L.A. REPORTING (312) 419-9292

    536
    1 calls in 1998?
    2 A. No, I did not.
    3 Q. And I take it you haven't taken any counts
    4 yet for this year?
    5 A. No, we haven't.
    6 MS. AAVANG: I have nothing further of
    7 this witness.
    8 HEARING OFFICER KNITTLE: Ms. Smetana?
    9 MS. SMETANA: I have no questions.
    10 HEARING OFFICER KNITTLE: Mr. Sweda, do
    11 you have cross-examination?
    12 MR. SWEDA: Yes, possibly one or two.
    13 HEARING OFFICER KNITTLE: Sure. Go ahead,
    14 sir.
    15 C R O S S - E X A M I N A T I O N
    16 by Mr. Sweda
    17 Q. Mr. Pfister?
    18 A. Uh-huh.
    19 Q. Mr. Pfister, is there any definitive
    20 evidence by the health department to support --
    21 which supports this fecal count comes from gulls as
    22 opposed to other sources of pollution?
    23 A. We --
    24 Q. Yes or no?
    L.A. REPORTING (312) 419-9292

    537
    1 A. No.
    2 MR. SWEDA: Okay. Thank you. That's
    3 all.
    4 HEARING OFFICER KNITTLE: Any redirect?
    5 MS. AAVANG: Briefly.
    6 R E D I R E C T E X A M I N A T I O N
    7 by Ms. Aavang
    8 Q. What other items may contribute to a fecal
    9 count other than gull fecal matter?
    10 A. Fecal coliform organisms are found in all
    11 human and animal waste, and so any other source of
    12 animals, raccoons, if there was a sanitary sewer
    13 overflow, for example, your fecal coliform count
    14 may also increase at that time.
    15 Q. Okay. And I believe the sanitary sewer
    16 issue would only come in if there had been a heavy
    17 rainfall and the sanitary sewer -- some accident
    18 that made the sanitary sewer dump?
    19 A. Correct. To my knowledge during these
    20 years, there was no bypasses of sanitary sewer
    21 effluent.
    22 Q. And Waukegan South being this enclosed bay
    23 almost, if you will, would it more likely than not
    24 be a catch basin, as you've indicated earlier, for
    L.A. REPORTING (312) 419-9292

    538
    1 the gull population and any other bird population
    2 that might be in that immediate area?
    3 A. It would be an area that would receive
    4 less dilution which would keep the counts higher.
    5 MS. AAVANG: Nothing further.
    6 HEARING OFFICER KNITTLE: Mr. Sweda?
    7 MR. SWEDA: I've got one question.
    8 R E C R O S S - E X A M I N A T I O N
    9 by Mr. Sweda
    10 Q. In that same vein, might the -- might
    11 anything in that basin contribute, insects, someone
    12 going there the night before and partying and going
    13 to the bathroom on the beach or in the water
    14 contribute to fecal coliform development in that
    15 bay because it's, as you said, a slower moving
    16 area?
    17 A. I think certainly it's possible, but from
    18 our observation, that would be --
    19 MR. SWEDA: That's all.
    20 MS. AAVANG: Nothing further.
    21 HEARING OFFICER KNITTLE: You can step
    22 down, sir. Thank you very much for your time.
    23 Ms. Aavang, do you have another
    24 witness?
    L.A. REPORTING (312) 419-9292

    539
    1 MS. AAVANG: Yes, I do.
    2 HEARING OFFICER KNITTLE: Do you want to
    3 call him now?
    4 MS. AAVANG: The City of Waukegan would
    5 call Jeff Musinski.
    6 HEARING OFFICER KNITTLE: Thank you, sir.
    7 If you could swear in the witness, please?
    8 (Witness sworn.)
    9 WHEREUPON:
    10 J E F F R E Y M U S I N S K I,
    11 called as a witness herein, having been first
    12 duly sworn, deposeth and saith as follows:
    13 D I R E C T E X A M I N A T I O N
    14 by Ms. Aavang
    15 Q. Please state your name and spell your last
    16 name for the record?
    17 A. Jeff Musinski, M-u-s-i-n-s-k-i.
    18 Q. And, Mr. Musinski, where do you reside?
    19 A. The City of Waukegan.
    20 Q. And who are you employed by?
    21 A. The City of Waukegan.
    22 Q. And what facility or department are you
    23 employed by?
    24 A. Water division.
    L.A. REPORTING (312) 419-9292

    540
    1 Q. And what's your title there?
    2 A. I'm the director of the water division.
    3 Q. How long have you been the director of the
    4 water division?
    5 A. Since July of '96.
    6 Q. And where are your principal -- where is
    7 your principal office located?
    8 A. At the water treatment plant located at
    9 the end of Sea-Horse Drive.
    10 Q. How close are you to, for want of a better
    11 term, the coke plant site when you're at the water
    12 plant?
    13 A. The coke plant site being the brown
    14 field?
    15 Q. Yes.
    16 A. Okay. From the facility that I'm at, I
    17 guess we would be less than a half of a mile.
    18 Q. Since you have been with the city at the
    19 water plant since 1996, have you noticed anything
    20 about gulls in the area?
    21 A. Yeah. They seem -- since I've been there,
    22 they seem to be on the uprise as far as population.
    23 Q. Have you seen gulls actually on the water
    24 plant property?
    L.A. REPORTING (312) 419-9292

    541
    1 A. Yes.
    2 Q. When did you first notice gulls on the
    3 water plant property?
    4 A. I guess it would be spring of '97.
    5 Q. Okay. And about when?
    6 A. Right around the nesting time, I guess.
    7 That would be, depending on the weather I guess,
    8 late February, April, somewhere around there.
    9 Q. In 1996, had you noticed any gulls after
    10 you started?
    11 A. Not really, just migratory, come in and
    12 come out, not very many though.
    13 Q. In the spring of 1997, how many gulls were
    14 you noticing on the water plant property?
    15 A. I'd say really no more than, say, a dozen
    16 or so nesting pairs, really not that big of a
    17 problem.
    18 Q. Had you learned that pairs had nested on
    19 the water plant property prior to your tenure
    20 there?
    21 A. Very seldom, not very many. I'd say less
    22 than -- you know, each year certainly less than a
    23 dozen nesting pairs on the whole facility.
    24 Q. In 1997, did you become concerned over the
    L.A. REPORTING (312) 419-9292

    542
    1 number of nesting pairs?
    2 A. Not really. Again, there weren't really
    3 that many there.
    4 Q. When did you first become concerned about
    5 the gulls?
    6 A. It was last spring. It just pretty much
    7 seemed to be to me, you know, in the space of a
    8 week or so our whole sedimentation basin had filled
    9 up with nesting gulls to the magnitude of several
    10 hundred birds.
    11 Q. What is the sedimentation basin?
    12 A. Sedimentation basin, it's the second stage
    13 of water treatment. We bring the water in from
    14 Lake Michigan. We treat it with chemicals to
    15 settle out the colloidal matter, and it's in those
    16 or the underground basins that that occurs.
    17 There's vents on top of there. It's a raised
    18 enclosure with grass on top of it with air vents.
    19 Q. Okay. So if you walked down the yard, the
    20 lawn of the water plant, would you be able to see
    21 these sedimentation basins?
    22 A. That's right.
    23 Q. All right. And where are they in relation
    24 to either OMC's parking lot or the closest building
    L.A. REPORTING (312) 419-9292

    543
    1 from OMC?
    2 A. They run parallel with the southernmost
    3 OMC building. So it would -- there would be a
    4 parking lot between their building and our
    5 sedimentation basins returning east west parallel.
    6 Q. And how many basins are there?
    7 A. It's actually -- it looks like one, but
    8 there's three underground basins.
    9 Q. And are they lined up in a line going
    10 across the property?
    11 A. Right. They flow from east to west and
    12 they're stacked from north to south, one, two,
    13 three.
    14 Q. The grid work that is over these basins,
    15 how big are the openings we're talking about?
    16 A. The air vents?
    17 Q. Yes.
    18 A. We've got easily a dozen air vents.
    19 They've got wire mesh screens, but it's not the
    20 size to keep any kind of dust or any other material
    21 like that out from entering into the flow.
    22 Q. What size -- what type size object could
    23 you possibly keep out?
    24 A. An insect, I'd say, you know, like a
    L.A. REPORTING (312) 419-9292

    544
    1 bumblebee size, mesh.
    2 Q. At some point, did you become concerned
    3 about the gull concentration on the water plant
    4 property?
    5 A. Yeah. When all those nesting pairs got in
    6 there and they, of course, you know, they started
    7 trying to nest and --
    8 Q. Were any of them nesting on the
    9 sedimentation basin?
    10 A. Every one of them were.
    11 Q. Is there a reason? Is there warm air
    12 coming up from there?
    13 A. No I guess according to some environmental
    14 or sea gull experts, that's a prime area for them
    15 to be. It's up. The trees are away. There is no
    16 natural predators around there. So that was just a
    17 really good place for them to be.
    18 Q. And how many nesting pairs were you
    19 observing?
    20 A. Again, I mean, you if you want to talk
    21 pairs, it was over 100, 150 of birds, which would
    22 be 300 birds.
    23 Q. So that was a significant increase from
    24 the numbers you observed before?
    L.A. REPORTING (312) 419-9292

    545
    1 A. That's right.
    2 Q. Did you learn at some -- Strike that.
    3 What measures, if any, did you
    4 undertake to control the problem?
    5 A. When I saw them there, I had contacted OMC
    6 to ask them what I could do since they were -- you
    7 know, had actively undergone measures to do that.
    8 Q. How did you know OMC had undertaken
    9 measures?
    10 A. I had heard the cannons and the
    11 pyrotechnics and screaming of the alarms. They had
    12 like a hurt bird alarm. So I called them and they
    13 told me that they had an extra stationary cannon
    14 that would alleviate my problem. So that's what I
    15 did at that time.
    16 Q. Where did you place the cannon in relation
    17 to the sedimentation basin and OMC?
    18 A. I placed the cannon initially on the
    19 easternmost portion of the sedimentation basin and
    20 pointed the cannon roughly at Larson Marine, which
    21 would be north, northwest.
    22 Q. Did you at any time move the cannon from
    23 that location?
    24 A. Several weeks later, not even -- a couple
    L.A. REPORTING (312) 419-9292

    546
    1 of weeks later I moved the cannon to the center of
    2 the sedimentation basin and pointed it due north
    3 over the top of OMC.
    4 Q. Was there a reason for that move?
    5 A. There was some calls, as I understand,
    6 concerning the noise, and it was my opinion at that
    7 time that if I pointed it due north I wouldn't
    8 encounter any kind of sound waves going towards the
    9 south, southwest, northwest.
    10 Q. By calls, I take it did you personally
    11 receive calls or did the City of Waukegan?
    12 A. The City of Waukegan did.
    13 Q. And at some point, that information was
    14 relayed to you and you undertook to remove the
    15 cannon?
    16 A. That's right.
    17 Q. Once you started using the cannon, did you
    18 note a change in the gull population?
    19 A. A significant reduction. Almost overnight
    20 they were gone.
    21 Q. Were there any other measures you
    22 undertook to get the gulls to move?
    23 A. No. Nothing to me at that time was more
    24 feasible than that.
    L.A. REPORTING (312) 419-9292

    547
    1 Q. Why was that the most feasible?
    2 A. There was some ulterior methods that
    3 just -- either due to the fact that we didn't have
    4 the materials. You know, there was a mention of
    5 some wire, and we couldn't do that on top of
    6 there. There's just not enough way to build some
    7 sort of a wire contraption that they described.
    8 Q. So you -- over that sedimentation basin,
    9 you didn't want -- you couldn't run wires?
    10 A. That's right.
    11 Q. Do you have to have access to those basins
    12 just in case of some type of situation?
    13 A. That's right. We get up there all the
    14 time.
    15 Q. Okay. And do you actually take those
    16 vents off sometime during the course --
    17 A. Several times during the year, spring
    18 included.
    19 Q. Okay. Other than, of course, the fact
    20 that these gulls are nesting over those vents, what
    21 was the concern with the gulls nesting over that
    22 area?
    23 A. I was primarily concerned with the
    24 material there, the hatchings, the fecal matter.
    L.A. REPORTING (312) 419-9292

    548
    1 It's my understanding that, you know, once the
    2 fecal matter dries up, if you emulsify it or put it
    3 up into the air, it can cause respiratory problems.
    4 My concern as well it was not only
    5 for the health and safety of my employees that
    6 would have to get up there and mow, but also once
    7 they put that stuff in the powder form it being
    8 drawn into the sedimentation basin and then into
    9 the public water supply.
    10 Q. You indicated that the cannons worked.
    11 How long did you actually run the cannons at the
    12 water plant?
    13 A. It seems to me it was sometime
    14 mid-April to late May, early June.
    15 Q. And what time frame were you running the
    16 cannons?
    17 A. I would direct the operators at the
    18 facility to start the cannons off when they saw the
    19 sea gulls coming in roughly 7:30, 8:00 in the
    20 morning, something like that. I told them
    21 certainly, you know, if you don't see any sea gulls
    22 out there, hold off until 8:30 or so, and then shut
    23 them down at about 4:30, 5:00 o'clock.
    24 Q. Is there a reason for shutting them down
    L.A. REPORTING (312) 419-9292

    549
    1 at 4:30 or 5:00 o'clock?
    2 A. It just didn't seem to me that the sea
    3 gulls -- once you've spooked them off for that long
    4 that they just didn't seem to me to come in.
    5 Q. Okay. And did you run the cannon every
    6 day from that April until early June?
    7 A. Pretty much so, yes. There was times when
    8 we were out of propane and it was out for a day or
    9 so, but, you know, pretty much every day.
    10 Q. And the cannon that was utilized, was it
    11 one that was capable of moving or was it fixed?
    12 A. No. It was fixed.
    13 Q. And do you know what the setting was, how
    14 often it was set to go off?
    15 A. It would go off -- it would go off in two
    16 and three at a time spaced five to ten minutes. It
    17 was the slowest setting that we could get. It
    18 seemed to be that, you know, once you spooked them
    19 out of there, then you could back off to that
    20 point.
    21 So the first couple of days it was
    22 quite a bit, and then we backed right off to the
    23 slowest setting we could get and were successful.
    24 Q. Did you consult with anyone at OMC on any
    L.A. REPORTING (312) 419-9292

    550
    1 other method that the water plant might utilize to
    2 control the gull problem?
    3 A. I spoke with Lisa, I can't pronounce her
    4 last name, and she had indicated, of course, the
    5 wire method and also suggested that, perhaps, we
    6 could use a dog too. At the time, a dog wasn't
    7 feasible.
    8 Q. And why wasn't a dog feasible?
    9 A. Our front gate wasn't working. We had too
    10 many holes in the gate. It was just -- we just had
    11 too many things going on at once to acclimate
    12 ourselves to bringing an animal to the facility.
    13 Q. How big of a parcel of land is the water
    14 plant on?
    15 A. Roughly eight acres.
    16 Q. And of those eight acres, how much was
    17 actually the gull, quote, unquote, territory they
    18 were using?
    19 A. Oh, geez. About a third of an acre.
    20 Q. So it was actually a very small portion of
    21 the property?
    22 A. That's right. That's the area of our
    23 primary concern.
    24 Q. Had you had gulls nesting anywhere other
    L.A. REPORTING (312) 419-9292

    551
    1 than on the sedimentation basin?
    2 A. There was a few on the very back parcel of
    3 property over by Kadinger Marine, but that didn't
    4 bother us over there.
    5 Q. It was just the one on the sedimentation
    6 basin?
    7 A. That's right.
    8 Q. We're now in 1999. Have you noticed any
    9 gulls returning?
    10 A. Yeah. They came right back again this
    11 year.
    12 Q. In the same number as last year?
    13 A. It could even be construed as more.
    14 Q. What measures are you taking this year to
    15 control them?
    16 A. I got a dog.
    17 Q. Why do you have a dog now?
    18 A. Because we got the front gate fixed. We
    19 prepared ourselves a little better. Of course, you
    20 know, we just can't bring an animal like that into
    21 a city facility without, you know, asking the
    22 appropriate people.
    23 Q. Where is the gull -- Strike that.
    24 Where is the dog in relation to the
    L.A. REPORTING (312) 419-9292

    552
    1 basin where the gulls were nesting?
    2 A. Right up on top of it.
    3 Q. And is he like -- first of all, is it a he
    4 or a she?
    5 A. It's a he.
    6 Q. Is he limited in what areas he's actually
    7 patrolling?
    8 A. His range of motion is limited by a wire.
    9 We were able to get one wire from one end of the
    10 basin to the other, east, west. We put a couple of
    11 grommets that limit his motion to keep him from
    12 getting tangled up on those air vents, and so
    13 really it's about two-thirds of the basin now that
    14 he kind of zips back and forth on.
    15 Q. And does he seem to be successful?
    16 A. One hundred percent.
    17 Q. And, again, you're now using that because
    18 you now have a gate that's secure so he can't get
    19 out, I take it?
    20 A. That's right.
    21 Q. What -- how long is he out there?
    22 A. Dependent on the weather, you know, when
    23 it's raining we don't really leave him outside
    24 because the gulls they don't like to congregate --
    L.A. REPORTING (312) 419-9292

    553
    1 they're not that big of a problem over one day, but
    2 we let him out there at about 7:30, 8:00 o'clock
    3 and bring him back in when it's coming up on 4:30.
    4 We'll probably bring him in at 4:30, 5:00 o'clock
    5 at night.
    6 Q. Okay. Other than the concern with the
    7 gulls being on the sedimentation basins, were there
    8 any other health concerns or property concerns at
    9 the water plant when the large influx of gulls
    10 occurred?
    11 A. There was some concern about them getting
    12 around up on top of our roof as well. They have a
    13 tendency, you know, when they come into the area,
    14 they have a tendency if they were on the basin
    15 sometimes they'd get up on the roof, too, and that
    16 would cause a lot of property damage definitely
    17 once they get picking at all that.
    18 Q. Did you have any employees that had
    19 encounters with the gulls?
    20 A. Not except for when they were up on the
    21 lawn mowing.
    22 Q. Would you have problems then with gulls
    23 coming after employees swooping down?
    24 A. Not that I'm aware of.
    L.A. REPORTING (312) 419-9292

    554
    1 Q. You've only had the dog for how long?
    2 A. This dog we had -- we had this dog for
    3 about two weeks. We had another dog before that
    4 for about one or two weeks as well.
    5 Q. And he worked as well?
    6 A. He -- yeah, definitely.
    7 Q. But the first time you've used a dog, you
    8 were in your trial period; is that correct?
    9 A. That's right.
    10 Q. Are you doing anything other than having
    11 the dog out there?
    12 A. No.
    13 MS. AAVANG: Nothing further of this
    14 witness.
    15 HEARING OFFICER KNITTLE: Ms. Smetana?
    16 MS. SMETANA: No.
    17 HEARING OFFICER KNITTLE: Mr. Sweda?
    18 MR. SWEDA: Possibly one.
    19 HEARING OFFICER KNITTLE: Go ahead, sir.
    20 C R O S S - E X A M I N A T I O N
    21 by Mr. Sweda
    22 Q. Was there a reason that you surmise that
    23 the gulls were suddenly on the City's property as
    24 opposed to somewhere else in '98, I guess, it was?
    L.A. REPORTING (312) 419-9292

    555
    1 A. That the gulls you mean -- I'm having a
    2 hard time understanding.
    3 Q. Do you know where the gulls came from?
    4 A. The influx of gulls, the higher
    5 population?
    6 Q. Yes. You mentioned that there were only a
    7 few and then there was a higher population.
    8 A. I assume they would be swept over from the
    9 property on the north side of OMC.
    10 MR. SWEDA: Thanks. That's all I have.
    11 HEARING OFFICER KNITTLE: Redirect?
    12 MS. AAVANG: Nothing.
    13 HEARING OFFICER KNITTLE: Thank you.
    14 Let's go off the record.
    15 (Break taken.)
    16 MS. AAVANG: The City of Waukegan will
    17 call its last witness, Greg Linn.
    18 HEARING OFFICER KNITTLE: Could you swear
    19 him in, please?
    20 (Witness sworn.)
    21
    22
    23
    24
    L.A. REPORTING (312) 419-9292

    556
    1 WHEREUPON:
    2 C R A I G L I N N,
    3 called as a witness herein, having been first
    4 duly sworn, deposeth and saith as follows:
    5 D I R E C T E X A M I N A T I O N
    6 by Ms. Aavang
    7 Q. Could you please state your name and spell
    8 your last name for the record?
    9 A. Craig Linn, L-i-n-n.
    10 Q. And, Mr. Linn, where do you live?
    11 A. 915 North Sheridan Road in Waukegan.
    12 Q. How long have you lived at that address?
    13 A. Since 1986.
    14 Q. And what is your profession?
    15 A. I'm an attorney in town.
    16 Q. And just to clarify for the record, do you
    17 do work for the City of Waukegan?
    18 A. No. Every case I've ever had has been
    19 against the City of Waukegan.
    20 Q. And have you handled cases against
    21 Outboard Marine Corporation?
    22 A. Hundreds.
    23 Q. And what is the nature of the cases you
    24 handle?
    L.A. REPORTING (312) 419-9292

    557
    1 A. I specialize in workers' compensation.
    2 Q. And you're married to Anne Linn; is that
    3 correct?
    4 A. Yes. She's my wife.
    5 Q. And she also resides at that address?
    6 A. Yes.
    7 Q. Turning your attention to where you
    8 reside, how far is that from Sheridan Road?
    9 A. It's on Sheridan Road. My house is on the
    10 east side of Sheridan Road.
    11 Q. And how far does your property extend from
    12 Sheridan Road?
    13 A. It goes from Sheridan Road down to the
    14 Amstutz Expressway. It's the last row of houses
    15 before the lake.
    16 Q. And there's the Amstutz Highway behind
    17 you; is that correct?
    18 A. Correct. Then there's railroad tracks,
    19 and then there's another road. I think it's called
    20 Pershing Drive, and then it's either the North
    21 Shore Sanitary District or Outboard Marine
    22 Corporation.
    23 Q. Turning your attention to 1997, you
    24 resided at your home; is that correct?
    L.A. REPORTING (312) 419-9292

    558
    1 A. Yes.
    2 Q. During 1997, what kind of noise would you
    3 hear in your backyard?
    4 A. Well, noise from the Amstutz Expressway,
    5 freight trains. There's kind of a mournful sound
    6 from a lighthouse, and I heard the air cannons
    7 also.
    8 Q. When did you first notice the air cannons?
    9 A. Quite frankly, they kind of blended into
    10 everything else. So I don't really have an exact
    11 day when I first noticed them.
    12 Q. Okay. Was the sound -- how could you tell
    13 that there was a new sound? Was it different than
    14 some of the other sounds you heard?
    15 A. Yes.
    16 Q. What would you compare it to? What did it
    17 sound like?
    18 A. Well, it was -- I mean, it blended in with
    19 the other noise as far as I was concerned. When I
    20 would stop and actually listen to it, it was kind
    21 of like a pow.
    22 Q. When you were outside, were there
    23 occasions when you and your wife or your children
    24 were outside with you when the cannons were going
    L.A. REPORTING (312) 419-9292

    559
    1 off?
    2 A. Yes.
    3 Q. Did you ever have any trouble conversing
    4 with either your wife or any of your children in
    5 the backyard when the cannons were going off?
    6 A. No.
    7 Q. Did you ever notice the cannons while you
    8 were inside your house?
    9 A. You know, we've got four French doors
    10 right along the back of the house, and I'd have to
    11 say yes. At one point, Mr. Sweda called me up and
    12 asked me if the sounds were bothering me, and after
    13 he did, I paid particular attention to it.
    14 Q. And did you notice it then from inside the
    15 house?
    16 A. Only when I'm -- you know, if all the
    17 windows along the backside of the house were open.
    18 Otherwise, I wouldn't notice it, no.
    19 Q. When the cannon fire was going on, did you
    20 notice any change in the wildlife in your yard?
    21 A. No.
    22 Q. What wildlife do you have in your yard?
    23 A. Geez, coyotes, deer. The first fox I've
    24 seen in my life was in my backyard, hawks.
    L.A. REPORTING (312) 419-9292

    560
    1 Q. Do you have any bird feeders in your yard?
    2 A. Yes.
    3 Q. Did you notice any change in 1998 or '97
    4 with the birds that were using your bird feeders?
    5 Were they affected in any manner?
    6 A. No. In fact, my wife is insistent that we
    7 keep the bird feeders into later into the spring,
    8 and they're still up and there's still birds there.
    9 Q. Have you heard any of the cannon noise
    10 this year?
    11 A. Yeah. I heard it on Sunday. I was down
    12 in my backyard, and you had asked me if I could
    13 come over here. So I happened to hear it. So I
    14 paid some -- I paid particular attention to it, but
    15 it was no different than it's been in the past.
    16 Q. Was it such that --
    17 A. It didn't disturb me.
    18 Q. You weren't distracted from what you were
    19 doing?
    20 A. No. I was cursing at a lawn mower. It
    21 was a Toro.
    22 Q. When you've had other individuals over to
    23 visit you, have any of them commented on the
    24 cannons?
    L.A. REPORTING (312) 419-9292

    561
    1 A. No one has ever commented on them,.
    2 Q. Have any of your neighbors commented to
    3 you about the cannon noise?
    4 A. Not to me, no.
    5 Q. Do you have --
    6 A. Well, I take that back. Mr. Sweda, I
    7 guess, he lives within three or four blocks of me.
    8 Q. And you were contacted by Mr. Sweda at
    9 some point; is that correct?
    10 A. Yes.
    11 Q. Anyone else other than myself contact you
    12 regarding the cannon noise?
    13 A. No. You contacted me because I was on a
    14 witness list of Mr. Sweda's. You asked me if it
    15 bothers me, and I said no. You told me I was on
    16 his list.
    17 Q. Do you have any domestic animals like cats
    18 or dogs?
    19 A. We have a cat.
    20 Q. Have you noticed the cat being affected by
    21 the noise from the cannons?
    22 A. No.
    23 Q. Have you had any personal experiences with
    24 the gulls?
    L.A. REPORTING (312) 419-9292

    562
    1 A. I've seen a few fly over our house.
    2 Q. Have you been down to the beach and
    3 noticed them?
    4 A. I really haven't, no.
    5 MS. AAVANG: Nothing further of this
    6 witness.
    7 HEARING OFFICER KNITTLE: Ms. Smetana, do
    8 you have any questions of this witness?
    9 MS. SMETANA: No.
    10 HEARING OFFICER KNITTLE: Mr. Sweda, do
    11 you have a cross-examination?
    12 MR. SWEDA: Just a clarification.
    13 HEARING OFFICER KNITTLE: Is it a question
    14 of the witness or a clarification you're asking
    15 me?
    16 MR. SWEDA: No. I'm trying to clarify
    17 what Mr. Linn said.
    18 C R O S S - E X A M I N A T I O N
    19 by Mr. Sweda
    20 Q. He mentioned that -- you mentioned that I
    21 was on a witness list of Ms. Aavang?
    22 A. I was on a witness list of yours I think.
    23 Q. That was provided to you from Ms. Aavang?
    24 A. Ms. Aavang came up and approached me one
    L.A. REPORTING (312) 419-9292

    563
    1 day in the courthouse and asked me -- she informed
    2 me that I was on a witness list that, I guess, you
    3 had prepared of people who were aware of the noise
    4 from the cannons.
    5 MR. SWEDA: That's all I wanted to
    6 clarify.
    7 HEARING OFFICER KNITTLE: Nothing else,
    8 Mr. Sweda?
    9 MR. SWEDA: No.
    10 HEARING OFFICER KNITTLE: Thank you very
    11 much. Any redirect on that issue?
    12 MS. AAVANG: Nothing.
    13 HEARING OFFICER KNITTLE: Thank you, sir.
    14 You can step down.
    15 Any other witnesses for the City of
    16 Waukegan?
    17 MS. AAVANG: No, we do not have any.
    18 HEARING OFFICER KNITTLE: Do you need a
    19 second to -- do you need a second?
    20 MS. SMETANA: No.
    21 HEARING OFFICER KNITTLE: Okay. Let's
    22 see. We have talked previously, Mr. Sweda and I,
    23 off the record. He has an opportunity to provide
    24 rebuttal witnesses, and he's stated that he did not
    L.A. REPORTING (312) 419-9292

    564
    1 have any.
    2 Is that still the case, Mr. Sweda?
    3 MR. SWEDA: Yes.
    4 HEARING OFFICER KNITTLE: We're going to
    5 move on to closings then. Why don't we make
    6 sure -- are there any motions that we have to
    7 address right now before we start off the
    8 closings? Mr. Sweda, do you have anything?
    9 MR. SWEDA: No.
    10 HEARING OFFICER KNITTLE: Is there
    11 anything from your side or do you want to address
    12 motions after the closings? Are you going to have
    13 any motions before we close this hearing that you
    14 want to address to the Board?
    15 MS. SMETANA: No.
    16 HEARING OFFICER KNITTLE: You have an
    17 opportunity to make additional motions is what I'm
    18 saying.
    19 MS. SMETANA: Not at this point.
    20 HEARING OFFICER KNITTLE: Let's just move
    21 right into closing statements. I take it,
    22 Mr. Sweda, you wanted to make one.
    23 MR. SWEDA: Yes, a brief one.
    24 HEARING OFFICER KNITTLE: Okay. You can
    L.A. REPORTING (312) 419-9292

    565
    1 proceed.
    2 MR. SWEDA: Since it's part of the
    3 record.
    4 As I stated in my opening statement,
    5 the only reason I'm here today before the Illinois
    6 Pollution Control Board is to formally present my
    7 noise pollution complaint with supporting
    8 testimony. The testimony provided by me, the
    9 complainant, and another nearby resident, a Mr. John
    10 Neff, with an approximate combined total of 50 plus
    11 years living in the area between us, Mr. Neff and
    12 myself, presented not only our experiences with
    13 trying to live our normal daily lives while under
    14 the effect of cannon noise in 1998 with an
    15 approximate duration from March through May of
    16 1998, but also with the cannon noise resumed in
    17 March 1999 and for years to come by, as far as we
    18 know, the respondents.
    19 Myself and Mr. Neff testified to one
    20 such period already this year that cannons were
    21 going on for 24-plus hours straight. We believe
    22 there have been serious violations of IEPA acts and
    23 codes as cited in my opening remarks. We believe
    24 these violations occurred more than once or a
    L.A. REPORTING (312) 419-9292

    566
    1 couple of times or once in a while, that is, more
    2 than each of those items in the 70-day period
    3 approximately in 1998, but that these -- spring of
    4 1998, but that these acts and violations have
    5 restarted for spring 1998 and are intended to re --
    6 I can't read my writing sometimes, intended to
    7 continue for years according to testimony by
    8 respondents.
    9 The vested interest in this matter of
    10 myself and Mr. Neff as provided in the testimony
    11 evidence and the testimony are rather simple and
    12 ordinary. The right to live our daily lives
    13 carrying out some ordinary activities such as being
    14 outside, et cetera, which were -- I won't go over
    15 those activities again, awakened by cannons in the
    16 morning, getting out of bed without the possibility
    17 or possibility of having to turn on inside the
    18 house two fans and the TV to block out the noise of
    19 the cannons.
    20 These actions by the respondents to
    21 consciously cause and sustain such cannon noise
    22 with claims of testimony that cannons are used for
    23 their ability to use speedy and quick ways to
    24 address birds is particularly troublesome. End of
    L.A. REPORTING (312) 419-9292

    567
    1 statement. Thank you.
    2 HEARING OFFICER KNITTLE: Thank you, Mr. Sweda.
    3 Ms. Smetana, did you say Outboard Marine
    4 Corporation had a closing they wanted to present?
    5 MS. SMETANA: Yes.
    6 HEARING OFFICER KNITTLE: You may proceed.
    7 MS. SMETANA: While respondent, OMC, will
    8 set forth its arguments more fully in its
    9 post-hearing brief, in closing, we briefly state as
    10 follows. The evidence presented during this
    11 hearing demonstrates a real problem with the
    12 overwhelming population of gulls on OMC's
    13 property. As the record has shown, the presence of
    14 these sea gulls interferes with the safety, health,
    15 and enjoyment of OMC employees and citizens of
    16 Waukegan.
    17 As the record also shows, OMC has
    18 addressed this problem in a gradual and humane
    19 way. OMC has used fewer cannons than recommended
    20 by its expert, Dr. Southern, limits the use of
    21 cannons to daytime hours during a limited period of
    22 the year, and in the course of use, OMC had reduced
    23 the number of cannons and frequently -- and the
    24 frequency of the noise.
    L.A. REPORTING (312) 419-9292

    568
    1 The testimony of our gull expert,
    2 Dr. Southern, has been that this method will
    3 generally take a few years to relocate the sea
    4 gulls. The benefits have already been
    5 demonstrated. There has been no evidence presented
    6 during the course of this hearing to support a
    7 finding that the noise from the cannons used by OMC
    8 and the city to address the overwhelming population
    9 of sea gulls resulted in a violation of the numeric
    10 standard for impulsive sound, and the evidence is
    11 insufficient to establish an unreasonable
    12 interference with the enjoyment of life.
    13 The complainant's evidence fails to
    14 prove either a violation of the numeric standard or
    15 a nuisance. First, complainant, Mr. Sweda, has
    16 failed to introduce any evidence whatsoever of a
    17 violation of the numeric standard for impulsive
    18 sound set forth in Section 901.104 of the Board's
    19 rules.
    20 In fact, unrefuted sound measurements
    21 introduced by respondents' expert, Brian Homans,
    22 demonstrated no exceedance of the numeric
    23 standard. The unrefuted evidence demonstrates that
    24 noise from the cannons as measured in accordance
    L.A. REPORTING (312) 419-9292

    569
    1 with the Board's regulations at the receiving
    2 source was 45 DB. These measurements firmly
    3 establish that the sound level is well below the
    4 applicable 56 DB standard in 901.104. There is
    5 unrefuted evidence entered in the record that
    6 there's no violation of the impulsive noise
    7 standard.
    8 Second, the facts introduced
    9 throughout the course of this hearing simply do not
    10 support a finding that the noise interfered with
    11 enjoyment of life and certainly did not demonstrate
    12 an unreasonable interference with the enjoyment of
    13 life. The standard by which the Board determines
    14 whether there has been an unreasonable interference
    15 is an objective one. One man's annoyance by a
    16 noise alone cannot support such a finding under
    17 this standard. Mr. Sweda's testimony simply
    18 mischaracterizes the noise in question as evident
    19 by the testimony of numerous other witnesses.
    20 First, the noise in question is below
    21 the numeric standard and does not rise to the
    22 degree to characterize it as an interference.
    23 Second, despite Mr. Sweda's testimony that the
    24 noise bothered him, he still continued during this
    L.A. REPORTING (312) 419-9292

    570
    1 period in 1998 to enjoy the outdoors, for example,
    2 by feeding squirrels, playing with his dog, and
    3 spending time outside.
    4 Third, the same noise of which Mr. Sweda
    5 complains has had no effect whatsoever on the lives
    6 of any other individuals and residents of
    7 Waukegan. As you have heard during the testimony
    8 of these individuals, each has continued to be able
    9 to enjoy the outdoors during the relevant time
    10 period by speaking in normal tones, talking on the
    11 phone, gardening, reading, working, entertaining
    12 guests, cooking, and observing nature without any
    13 interference from the noise of cannons.
    14 One witness, Mr. Hirsch, who lives
    15 substantially closer to the noise source than
    16 Mr. Sweda and his house is only 900 yards from OMC
    17 has testified that he's been able to work at his
    18 home both indoors and outside without any
    19 interference from the cannons. In addition, he
    20 continues to dine, entertain guests, and carry on
    21 conversations in normal tones in his backyard
    22 without any interference from the noise.
    23 Mr. Hirsch has also testified the
    24 noise from the sea gulls, trains, and traffic are
    L.A. REPORTING (312) 419-9292

    571
    1 all louder than any noise from cannons when heard
    2 at his house on Sheridan Road. Another witness,
    3 Mr. Noff, who lives across the street from
    4 complainant, Mr. Sweda, testified that the noise in
    5 no way interfered with his enjoyment of life and
    6 that he continues to do yard work, entertain
    7 guests, and to speak to his guests in normal
    8 conversational tones. Mr. Noff also testified the
    9 noise from boom boxes in his neighborhood is far
    10 louder and more annoying than any noise from the
    11 cannons.
    12 In addition, the record establishes
    13 that employees of OMC, who were located at the
    14 noise source, have continued to be able to work
    15 without interference or distractions from the
    16 noise, to speak on the telephones, and to speak
    17 with each other outside. The complainant has
    18 failed to establish that the noise from the cannons
    19 as heard a mile away is an unreasonable
    20 interference with life. Mr. Sweda has
    21 characterized as a nuisance the very activity which
    22 OMC has put in place to combat the nuisance
    23 resulting from an abundant population of sea gulls
    24 which threatens the safety, health, and ability to
    L.A. REPORTING (312) 419-9292

    572
    1 enjoy life of OMC employees and the citizens of
    2 Waukegan. Thank you.
    3 HEARING OFFICER KNITTLE: Ms. Aavang?
    4 MS. AAVANG: Very briefly, if I may. The
    5 City of Waukegan would note two things. First of
    6 all, as has been already alluded to in OMC's
    7 closing statement, the evidence presented by the
    8 testimony of Mr. Homans indicates a non-violation
    9 in terms of the numeric standard propounded under
    10 the Pollution Control Board.
    11 Further, the testimony of the
    12 witnesses produced by both OMC and the City of
    13 Waukegan indicate that there are citizens who find
    14 no problem with the noise level that is being
    15 generated, and, in fact, as Craig Linn indicated he
    16 didn't even notice it until it was brought to his
    17 attention because of the large number of other
    18 background noises. Again, this is a city, and,
    19 unfortunately, when you live in a city, there are
    20 noises. This is not a farm community like that
    21 dealt with Mr. Zack in his case in 1979. We're a
    22 city.
    23 We have other noises, and depending
    24 on, I think, an individual's personality, one noise
    L.A. REPORTING (312) 419-9292

    573
    1 may be more noticeable than another. Mr. Neff has
    2 testified that he found it troublesome not so much
    3 apparently because of the noise, but because of the
    4 connotation in his mind that that noise was a
    5 gunshot, and yet he admitted during his testimony
    6 that he occasionally hears gunshots in his neighbor
    7 that are actually gunshots and those are
    8 troublesome too.
    9 Further, the testimony has been that
    10 there is a very real concern about the health and
    11 welfare of the citizens of Waukegan, not only in
    12 relation to the water plant and the birds utilizing
    13 that area, but also with our beach. As the
    14 testimony of Mr. Pfister indicated, there was a
    15 definite correlation in his mind with the gull
    16 colony and an increase of the bacteria count.
    17 While the City of Waukegan as to its water plant is
    18 currently undertaking a measure utilizing a dog
    19 which appears to be working in these short weeks,
    20 there's no guarantee, as the testimony of
    21 Dr. Southern indicated, that that will continue to
    22 work for the next year or two, and our concern is
    23 with continuing an effort to rather than eradicate
    24 the gulls, to, perhaps, move them to another area
    L.A. REPORTING (312) 419-9292

    574
    1 where they can nest and not cause the health
    2 problem that we see here. Thank you.
    3 HEARING OFFICER KNITTLE: Thank you.
    4 Mr. Sweda, you have an opportunity to
    5 make a final closing argument if you want.
    6 MR. SWEDA: No thanks.
    7 HEARING OFFICER KNITTLE: I also want to
    8 state for the record that there are no citizens
    9 here, and so there will be no interest in citizens
    10 making any statements, although if they were here,
    11 they would have that opportunity. Also, I want to
    12 state I'm required to make a credibility statement
    13 at the conclusion of the hearing, and based on my
    14 legal judgment and the observations I have made at
    15 this hearing, I don't find any credibility
    16 witness -- excuse me, any credibility issues with
    17 any of the witnesses here today or yesterday, which
    18 leads us to the briefs. I'm going to go off the
    19 record for a second and we'll set up a briefing
    20 schedule and we'll come back on.
    21 (Discussion had
    22 off the record.)
    23 HEARING OFFICER KNITTLE: Pursuant to a
    24 discussion off the record, we've set up a briefing
    L.A. REPORTING (312) 419-9292

    575
    1 schedule, which is as follows, and will also be
    2 written out in a hearing officer's order, which I
    3 will send out at the end of this week.
    4 The complainant will have two weeks
    5 from the receipt of the completed transcript at the
    6 Board's offices to file a post hearing brief if he
    7 decides to file. Two weeks after that time period
    8 ends, the respondents will have two weeks. I've
    9 said that poorly. After Mr. Sweda's two-week
    10 period ends, the respondents will have two weeks in
    11 which to file a response brief. Mr. Sweda will
    12 have two weeks after the response period ends to
    13 file a reply if he so chooses.
    14 I also want to go over the exhibits
    15 one-by-one on the record. Correct me if you think
    16 there's been any errors. As far as I'm concerned,
    17 I have exhibits from the complainant, first is
    18 Complainant's Exhibit No. 1, which is notes of
    19 Larry Sweda. Second is Complainant's Exhibit No.
    20 2, which is discovery responses to interrogatories
    21 filed on 1-13-99, 2-1-99, and 4-4-99.
    22 Complainant's Exhibit No. 3 is letter to Donna
    23 Shullalah who is the U.S. Department of Health and
    24 Human Services Mr. Sweda and also a letter
    L.A. REPORTING (312) 419-9292

    576
    1 addressed to Mr. Sweda from Kenneth Feith from the
    2 USEPA Complainant's Exhibit No. 4 is a letter from
    3 Mr. Sweda to William Durkin, the mayor of the City
    4 of Waukegan as well as a letter from Mr. Sweda to
    5 Dave Jones, president of the Outboard Marine
    6 Corporation.
    7 Complainant's Exhibit No. 5 is a
    8 letter to Mr. Sweda from David Jones dated May 1st,
    9 1998. Complainant's Exhibit No. 6 is handwritten
    10 tables with data on them intended to denote the
    11 sunrise and sunset times for the period of time
    12 that Mr. Sweda obtained from the Chicago Tribune
    13 web site. Complainant's Exhibit No. 7 were two
    14 audio tapes which were not admitted. All the
    15 previous exhibits up to this point have been
    16 admitted into evidence, but the two audiotapes were
    17 objected to. The objection was sustained, and
    18 these two tapes were not admitted. Complainant's
    19 Exhibit No. 8 is Greg Zack's resume and
    20 experience. This was admitted. Complainant's
    21 Exhibit No. 9 was a case, files related to a case
    22 that Mr. Zack was involved in in the early 1970s.
    23 These files were admitted over objection. That is
    24 all of the complainant's exhibits. As I recall,
    L.A. REPORTING (312) 419-9292

    577
    1 there was a Complainant's Exhibit No. 10 which was
    2 initially offered and then withdrawn.
    3 MS. SMETANA: One point of clarification.
    4 HEARING OFFICER KNITTLE: Yes.
    5 MS. SMETANA: I recall that in addition
    6 when the audiotapes were offered, there was some
    7 piece of paper offered with them that also weren't
    8 admitted.
    9 HEARING OFFICER KNITTLE: You are
    10 correct. There were pieces of paper purporting to
    11 discuss the -- what was on the audiotapes and the
    12 methodology, and those were not admitted either,
    13 which takes us to Outboard Marine Corporation's
    14 Exhibit No. 1 which is a map of the City of
    15 Waukegan. This was admitted. Complainant's
    16 Exhibit No. 2 was another map of the lakefront
    17 property, a smaller map. It appears to be more
    18 specific. That was admitted as well. Both of
    19 these maps have markings on them that have been
    20 made throughout the course of this hearing from the
    21 various witnesses of Outboard Marine Corporation
    22 and both are admitted.
    23 Outboard Marine Corporation Exhibit
    24 No. 3 is a document entitled Recommendations for
    L.A. REPORTING (312) 419-9292

    578
    1 Discouraging Gulls from nesting on OMC property by
    2 William D. Southern, Ph.D. This was admitted. OMC
    3 Exhibit No. 4 is a picture of a car with bird
    4 droppings on it. This was admitted. No objection
    5 to that.
    6 Outboard Marine Corporation No. 5 is
    7 a picture of the roof of the car, also admitted
    8 over no objections. Both of these, just for the
    9 record, are not actual pictures, but color copies
    10 of pictures. OMC No. 6 is an application for U.S.
    11 Fish and Wildlife. This was admitted. There were
    12 no objections. OMC No. 7 was a Federal Fish and
    13 Wildlife permit. This was admitted. There were no
    14 objections. OMC No. 7 -- excuse me, OMC No. 8 is
    15 the renewed Federal Fish & Wildlife permit
    16 submitted for this year. This was admitted as
    17 well. There were no objections to that.
    18 OMC number nine is a report of
    19 acoustical measures of -- I have it as OMC cannon
    20 list, but this is a report by Shiner & Associates.
    21 There was no objection to this, and this report was
    22 admitted, and Exhibit No. 10 is a table that was in
    23 the report, a table three from the report, and this
    24 was admitted with no objection. It also bears the
    L.A. REPORTING (312) 419-9292

    579
    1 mark of the witness. All those were admitted. Any
    2 comments on those?
    3 MS. SMETANA: No.
    4 HEARING OFFICER KNITTLE: And, finally, we
    5 have the City of Waukegan's exhibits. Exhibit No.
    6 1 is a fecal coliform concentration summary of 1997
    7 consisting of --
    8 MS. AAVANG: It's also '98.
    9 HEARING OFFICER KNITTLE: And '98. Excuse
    10 me. It looks to be seven pages -- six pages.
    11 Excuse me. I note it because they are not attached
    12 to each other. There are six pages of fecal the
    13 coliform concentration summary '97 and '98. That
    14 was admitted. There was no objection to that.
    15 Excuse me. There was an objection initially, but
    16 Mr. Sweda withdrew his objection after the
    17 foundation was laid, and City of Waukegan Exhibit
    18 No. 2, a letter summarizing the data contained in
    19 the study which constitutes Exhibit No. 1. This
    20 was admitted and there was no objection; is that
    21 correct?
    22 MS. AAVANG: Actually, there's also some
    23 data from prior years in those letters, and there's
    24 a broader range of beaches. It's all beaches that
    L.A. REPORTING (312) 419-9292

    580
    1 the health department monitored.
    2 HEARING OFFICER KNITTLE: Thank you very
    3 much. With that clarification, this exhibit was
    4 admitted as well, and those were all the exhibits I
    5 received. I'm not missing anything, am I?
    6 MS. SMETANA: No.
    7 HEARING OFFICER KNITTLE: I'm not missing
    8 anything from OMC or the City of Waukegan?
    9 MS. SMETANA: No.
    10 HEARING OFFICER KNITTLE: Mr. Sweda, am I
    11 missing any of your exhibits?
    12 MR. SWEDA: I don't recall anything
    13 missing.
    14 HEARING OFFICER KNITTLE: Okay. Let me
    15 make sure I'm not forgetting anything. No. That's
    16 all I have. Thank you all for your time.
    17 (Whereupon, these were all the
    18 proceedings had in the
    19 above-entitled matter.)
    20
    21
    22
    23
    24
    L.A. REPORTING (312) 419-9292

    581
    1 STATE OF ILLINOIS )
    ) SS.
    2 COUNTY OF C O O K )
    3
    4 I, GEANNA M. IAQUINTA, CSR, do
    5 hereby state that I am a court reporter doing
    6 business in the City of Chicago, County of Cook,
    7 and State of Illinois; that I reported by means of
    8 machine shorthand the proceedings held in the
    9 foregoing cause, and that the foregoing is a true
    10 and correct transcript of my shorthand notes so
    11 taken as aforesaid.
    12
    13
    ______________________________
    14 GEANNA M. IAQUINTA, CSR
    Notary Public, Cook County, IL
    15 Illinois License No. 084-004096
    16
    17 SUBSCRIBED AND SWORN TO
    before me this_____day
    18 of_______, A.D., 1999.
    19 _______________________
    Notary Public
    20
    21
    22
    23
    24
    L.A. REPORTING (312) 419-9292

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