262
1 BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
2
3 ANTHONY and KAREN ROTI, )
PAUL ROSENSTROCK and )
4 LESLIE WEBER, )
)
5 Complainants, )
)
6 vs ) No. PCB 99-019
)
7 LTD COMMODITIES, )
)
8 Respondent. )
9
10
11
12 The following is the transcript of
13 a hearing held in the above-entitled matter taken
14 stenographically by GEANNA M. IAQUINTA, CSR, a
15 notary public within and for the County of Cook
16 and State of Illinois, before JOHN KNITTLE,
17 Hearing Officer, at 118 West Cook Avenue,
18 Libertyville, Illinois, on the 2nd day of
19 November, 1999, A.D., scheduled to commence at
20 9:30 a.m., commencing and 9:45 a.m.
21
22
23
24
L.A. REPORTING (312) 419-9292
263
1 A P P E A R A N C E S:
2 STEVEN P. KAISER & ASSOCIATES,
4711 Golf Road
3 Suite 708
Skokie, Illinois 60076
4 (847) 677-7066
BY: MR. STEVEN P. KAISER
5
Appeared on behalf of the Complainants,
6
7 BAIZER & KOLAR,
513 Central Avenue
8 5th Floor
Highland Park, Illinois 60035
9 (847) 433-6677
BY: MR. JOSEPH E. KOLAR
10
Appeared on behalf of the Respondent.
11
12
13
14 ALSO PRESENT:
15 Ms. Karen Roti
16 Mr. Paul Rosenstrock
17 Mr. Michael Hara
18
19
20
21
22
23
24
L.A. REPORTING (312) 419-9292
264
1 I N D E X
2
THE WITNESS: GREGORY ZAK
3 PAGE
4 Direct Examination
by Mr. Kaiser...................... 266
5
Cross-Examination
6 by Mr. Kolar....................... 352
7 Redirect Examination
by Mr. Kaiser...................... 417
8
Recross-Examination
9 by Mr. Kolar....................... 434
10
THE WITNESS: LESLIE WEBER
11
Direct Examination
12 by Mr. Kaiser...................... 441
13 Cross-Examination
by Mr. Kolar....................... 496
14
Redirect Examination
15 by Mr. Kaiser...................... 526
16 Recross-Examination
by Mr. Kolar....................... 535
17
Further Redirect Examination
18 by Mr. Kaiser...................... 538
19 E X H I B I T S
20 Marked for
Identification
21
Complainants' Exhibit No. 39.......... 288
22 Complainants' Exhibit No. 40.......... 295
Respondent's Exhibit No. 32.......... 363
23 Respondent's Exhibit No. 33.......... 373
Respondent's Exhibit No. 34.......... 379
24 Complainants' Exhibit No. 41.......... 483
L.A. REPORTING (312) 419-9292
265
1 HEARING OFFICER KNITTLE: Hello. My name,
2 as you all know by this point, is John Knittle,
3 hearing officer with the Illinois Pollution
4 Control Board. This is the second day of hearings
5 for PCB 1999-019 known as Anthony and Karen Roti,
6 Paul Rosenstrock, Leslie Weber versus LTD
7 Commodities. It's November 2nd, approximately
8 9:45 a.m., and we are continuing with the
9 complainants' case in chief. Do you want me to
10 have him sworn in, Mr. Kaiser?
11 MR. KAISER: You know, what I'd like to do
12 before we swear him in, I'd like to put up the
13 easel and hang up some of the aerial photos.
14 HEARING OFFICER KNITTLE: Let's go off the
15 record.
16 (Brief pause.)
17 HEARING OFFICER KNITTLE: Your first
18 witness, I take it, is Mr. Zak?
19 MR. KAISER: Yes, it is.
20 HEARING OFFICER KNITTLE: Can we swear him
21 in, Geanna?
22 THE WITNESS: No.
23 HEARING OFFICER KNITTLE: Pardon?
24 THE WITNESS: Sorry.
L.A. REPORTING (312) 419-9292
266
1 HEARING OFFICER KNITTLE: Do you not want
2 to be sworn, Mr. Zak?
3 THE WITNESS: No, no. No problem.
4 (Witness sworn.)
5 WHEREUPON:
6 G R E G O R Y Z A K,
7 called as a witness herein, having been first duly
8 sworn, deposeth and saith as follows:
9 D I R E C T E X A M I N A T I O N
10 by Mr. Kaiser
11 Q. Good morning, Mr. Zak. Could you please
12 state your full name and spell your last name for
13 the court reporter's benefit?
14 A. My name is Gregory T. Zak and Zak is
15 spelled Z-a-k. I typically go by Greg Zak.
16 Q. And, Mr. Zak, by whom are you employed?
17 A. By the state of Illinois.
18 Q. And what is your position with the state
19 of Illinois?
20 A. I work for the Illinois Environmental
21 Protection Agency. My position there is noise
22 advisor.
23 Q. How long have you worked for the Illinois
24 Environmental Protection Agency or what we may
L.A. REPORTING (312) 419-9292
267
1 refer to as the IEPA?
2 A. Over 27 years.
3 Q. What is your educational background?
4 A. My educational background is three years
5 of electronics radar, electronics instruction for
6 the United States Marine Corps, a bachelor's
7 degree -- a bachelor of science degree in biology,
8 and a master's degree in public administration.
9 Q. How long have you worked as the IEPA's
10 noise advisor?
11 A. Since 1987.
12 Q. You're stationed out of Springfield,
13 Illinois?
14 A. That's correct.
15 Q. And did you get up bright and early this
16 morning to drive up here to present testimony?
17 A. Yes, 3:30 a.m.
18 Q. I'm sorry?
19 A. 3:30 a.m.
20 Q. And I note that it's now a little before
21 ten to 10:00. So we appreciate you making the
22 effort, Mr. Zak.
23 And you're here pursuant to subpoena,
24 are you not?
L.A. REPORTING (312) 419-9292
268
1 A. That's correct.
2 Q. And you're aware that the case that's
3 presently being heard by the Board is a noise
4 complaint; is that right?
5 A. That's correct. That's my understanding.
6 Q. And that the complainants include Paul
7 Rosenstrock, who is here attending the hearing
8 this morning?
9 A. That's correct.
10 Q. And in addition, the complainants include
11 Leslie Weber and Karen and Anthony Roti?
12 A. Yes.
13 Q. All right. Now, do you recall when you
14 first got involved with this case?
15 A. Without checking my records, I couldn't
16 give you an exact date. I would say it's
17 approximately three years ago.
18 Q. And what was the nature -- how was it that
19 you came to be involved in this case?
20 A. Mrs. Roti called me on the phone and
21 explained the problem. My standard procedure,
22 being a one-person noise program, is to advise the
23 complainant on methodology to use to work with the
24 noise emitter to get the problems solved, and I
L.A. REPORTING (312) 419-9292
269
1 encouraged her to do that.
2 I also did advise her that I would
3 always be available to consult with her and assist
4 her in getting the problem resolved.
5 Q. Now, as a one-person noise program, what
6 does that mean? Do you essentially have
7 responsibility for all of the state of Illinois?
8 A. That's correct.
9 Q. And you devise -- and you consult with any
10 number of residents and citizens in the course of
11 a year; is that right?
12 A. Yes. Right now, it's running close to
13 3,000 calls a year.
14 Q. All right. I'd like to show you what's
15 previously been marked and I believe received into
16 evidence as Complainants' Exhibit 29. It's a
17 letter from Karen Roti to Mike Hara dated
18 April 20th, 1988, from Karen Roti, again, to Mike
19 Hara. I'd ask you to take a look at that letter.
20 A. Yes. I've looked at it.
21 Q. And I don't know if you've seen that
22 letter before today, but do you recognize the
23 format of that letter?
24 A. Yes. That's part of the general
L.A. REPORTING (312) 419-9292
270
1 information I send out to people who have a noise
2 problem.
3 Q. And what is your first direction or do you
4 recall what the first direction was that you gave
5 to Karen Roti in connection with this problem?
6 A. Yes. I advised her to send a letter that
7 would be constructed in very friendly terms and
8 seek to resolve the problem with, in this case,
9 LTD on a neighbor to neighbor, good neighbor type
10 of basis.
11 If that letter fails to solve the
12 problem, I will then send information to the
13 complainant basically describing the applicable
14 noise regulations and also example letters that
15 have been done by other folks who have a similar
16 problem so they can see how to assemble a letter.
17 Q. And did you do that with Ms. Roti?
18 A. Yes, I did.
19 Q. Now, did you become aware sometime after
20 July 18th of 1998 that, in fact, Karen Roti had
21 filed a complaint along with Mr. Rosenstrock and
22 Leslie Weber with the Pollution Control Board
23 citing LTD Commodities for violations of the
24 Illinois Protection -- Environmental Protection
L.A. REPORTING (312) 419-9292
271
1 Act and regulations promulgated pursuant to that
2 Act?
3 A. Yes, I was aware of that.
4 Q. And did you and I go out along with Mr.
5 Kolar to the LTD facility in July of 1999 and view
6 the LTD facility?
7 A. Yes, we did.
8 Q. And as you sit here today, do you recall
9 that afternoon when we not only observed the
10 loading dock activities, but went into the LTD
11 warehouse area?
12 A. Yes, I remember it.
13 Q. And you remember that Joe Kolar was with
14 us, right?
15 A. Yes, I do.
16 MR. KOLAR: I think it was June for the
17 record. I think it was early June.
18 MR. KAISER: Is that your recollection?
19 MR. KOLAR: Yes.
20 MR. KAISER: The summer of 1999.
21 BY MR. KAISER:
22 Q. Now, you see on display here Respondent's
23 Exhibit 89.
24 Can you see that from where you're
L.A. REPORTING (312) 419-9292
272
1 seated?
2 A. Yes, just fine.
3 Q. And do you recognize this building
4 footprint and roof line as being
5 the -- well, an aerial view of the LTD Commodities
6 facility in Bannockburn, Illinois?
7 A. It would be appear to be so.
8 Q. Do you have any doubt about that as you
9 orient yourself on Route 22 running east and west
10 and the tollway running north and the loading
11 docks to the north end?
12 A. No. I have -- I don't have any
13 significant doubt. Just this is the first time
14 I've seen if from the air, though, as opposed to
15 seeing it from the ground, but I have been around
16 on the ground a number of times.
17 Q. Do you recall that when we first arrived
18 we met in the parking lot just to the northeast of
19 the LTD building area?
20 A. That's correct.
21 Q. And we spent sometime -- do you recall
22 that there's a walkway that goes along this truck
23 staging area and that's above the LTD dock area?
24 A. Yes.
L.A. REPORTING (312) 419-9292
273
1 Q. And do you recall that we stood on that
2 walkway with Mr. Kolar and essentially watched
3 trucks pull into and out of the LTD docks?
4 A. That's correct.
5 Q. And do you recall as you sit here this
6 morning what types of noise you observed being
7 generated by dock activities at the LTD facility?
8 A. I specifically remember pneumatic sounds,
9 for example, air brakes. There was also a small
10 tractor. I would call it a tractor. It could be
11 called a number of things, but I would refer to it
12 as a tractor that was used for moving trailers
13 around.
14 Q. Now, that tractor, sometimes it's been
15 called a yard pig. Are you aware that in this
16 case people have sometimes referred to that
17 tractor that's used to jockey trailers into
18 position as a yard pig?
19 A. Yes. That's why I previously said that it
20 could be called a tractor or another group of
21 descriptive terms for it.
22 Q. So by using tractor, in some ways that's a
23 little bit more neutral term, isn't it, than yard
24 pig?
L.A. REPORTING (312) 419-9292
274
1 A. Yes.
2 Q. You were trying to be delicate there, but
3 there's this yard tractor, and, again, did you
4 observe the function of that yard tractor?
5 A. Yes. It appeared to be to move the
6 trailers around.
7 Q. And how -- did you note whether there was
8 any -- well, how would the yard tractor move a
9 trailer into position?
10 A. The trailer would be jacked up slightly,
11 and then the yard tractor would couple to it, and
12 once the coupling was completed, then it would
13 move the trailer to whatever position they wanted
14 to move it to, and then at the conclusion of that
15 uncouple the trailer from the, what I would call,
16 the tractor.
17 Q. Now, did you notice whether when the yard
18 tractor coupled with the semitrailer whether there
19 was any noise generated?
20 A. Yes. There was a metal on metal sound,
21 impulsive-type sound.
22 Q. And when the yard tractor would disengage
23 or uncouple from the trailer, did you note whether
24 that action created any noise?
L.A. REPORTING (312) 419-9292
275
1 A. Yes, I believe it did.
2 Q. And do you recall what that sound was?
3 A. Again, it would be along the lines of a
4 metal contacting metal and an impulsive-type
5 sound.
6 Q. Now, air brakes, how would you describe
7 the sound a semi-tractor's brake makes when it
8 releases air?
9 A. It's almost a small explosion of air.
10 There's no gradual onset to it. It's just boom
11 and it's there. So it's a very short duration,
12 fairly intense sound, and, again, it would be in
13 my consideration an impulsive-type sound.
14 Q. And when you use that term, impulsive-type
15 sound, are you using that within its technical
16 meaning as defined by the Board's noise
17 regulations?
18 A. That's correct.
19 Q. So both the metal on metal sound of the
20 tractor coupling and uncoupling with the
21 semitrailer and the small explosion of air
22 occasioned by the release of air from air brakes,
23 both of those noises are in your opinion impulsive
24 sounds?
L.A. REPORTING (312) 419-9292
276
1 A. That's correct.
2 Q. Did you hear any back-up warning beepers
3 on any trucks or semi-tractors in the LTD dock
4 area?
5 A. I believe I did. That's the kind of
6 common occurrence with any operation where you've
7 got trucks being moved around and backing up and
8 pulling in, and by trucks, I mean your semi-type
9 trucks.
10 Q. Are you aware of the function of a back-up
11 warning beeper?
12 A. Yes. It's described under the OSHA
13 regulations, the Occupational Specialty Health
14 Administration regulations, pertaining to vehicles
15 that have an obstructed view to the rear, and the
16 regulation requires that they do one of two
17 things, either have an audible warning that is
18 audible above the ambient sound to warn people the
19 vehicle is backing up.
20 It's a safety device for anybody
21 that's near the truck as opposed to the driver of
22 the truck, and then in addition rather than using
23 the back-up beeper, they can always use an
24 observer according to the same OSHA regulation.
L.A. REPORTING (312) 419-9292
277
1 So they have a choice of one or the other.
2 Q. Are you aware of whether back-up warning
3 beepers are designed in such a way that the tone
4 of the beeper will stand out from the background
5 noises?
6 A. Yes. That's -- it's designed as a
7 workers' safety device. It's -- the frequency of
8 sound coming out of it is rather irritating to
9 most people. It's fairly sharp in tone, almost a
10 raucous-type sound, and it's very piercing.
11 Again, the whole idea is to get the
12 attention of anybody on the ground who is very
13 close to the back of a large vehicle that is being
14 backed up to ensure the person will get out of the
15 way.
16 Q. And has it been your experience that the
17 noise emitted from back-up warning beepers could
18 be described as a prominent discrete tone?
19 A. Yes, and I had --
20 MR. KOLAR: Objection. Their complaint
21 does not allege violations of the promiment
22 discete tone provision of the regulation.
23 HEARING OFFICER KNITTLE: Is that correct,
24 Mr. Kaiser?
L.A. REPORTING (312) 419-9292
278
1 MR. KAISER: That is correct, but a
2 prominent discrete tone could very well be the
3 basis for a nuisance complaint and could support
4 the allegations of a nuisance, which we have
5 leveled against LTD.
6 HEARING OFFICER KNITTLE: Overruled.
7 BY MR. KAISER:
8 Q. Do you recall the question?
9 A. No. Could you repeat it please?
10 (Record read.)
11 HEARING OFFICER KNITTLE: In my ruling on
12 the last objection, I'm going to allow him to ask
13 this question, but I don't want to get too far
14 into the definitions of prominent discrete tones
15 and technical issues because it doesn't seem to be
16 part of the complaint, but this question is okay
17 once the warning siren we have going on right now
18 stops.
19 MR. KOLAR: So you're allowing him to ask
20 it relating to his nuisance claim?
21 HEARING OFFICER KNITTLE: Correct, but
22 even relating to the nuisance claim, I don't want
23 to get too in-depth about the definitions of
24 prominent discrete tones and what may or may not
L.A. REPORTING (312) 419-9292
279
1 be a prominent discrete tone.
2 MR. KAISER: May I ask why?
3 HEARING OFFICER KNITTLE: Because the
4 nuisance claim doesn't require a prominent
5 discrete tone. It requires -- you can probably
6 cite it better than I can, but seeing as how it's
7 not part of the complaint and not something that
8 you have to prove up to obtain a finding of a
9 nuisance violation, I don't want to get too far
10 into it. I don't think it's relevant.
11 MR. KAISER: I would agree that the
12 definition of the prominent discrete tone is a
13 rather technical one, but the affect -- and, for
14 the record, we're listening to a warning siren
15 that the village of Libertyville is blasting at
16 the moment, and we're unable to continue the
17 hearing because of the sound of that warning
18 horn.
19 Now, prominent discrete tones are a
20 part of this case and support our claims of a
21 nuisance, and the fact that we can barely think
22 and can't effectively continue the hearing while
23 this prominent discrete
24 tone --
L.A. REPORTING (312) 419-9292
280
1 HEARING OFFICER KNITTLE: Let me
2 interrupt. I'm not saying that you can't talk
3 about the sounds themselves and how they may or
4 may not be a nuisance. I'm saying I don't want to
5 get technical definitions and technical
6 discussions about what may or may not be a
7 prominent discrete tone. I don't think it's
8 relevant, and I'm not going to allow it.
9 MR. KAISER: Thank you.
10 HEARING OFFICER KNITTLE: Let's go off the
11 record for a while.
12 (Brief pause.)
13 (Discussion had
14 off the record.)
15 HEARING OFFICER KNITTLE: We can proceed.
16 MR. KAISER: So the record is clear, we
17 just suspended the hearing because we were hearing
18 the village of Libertyville's warning siren which
19 lasted for about five minutes.
20 BY MR. KAISER:
21 Q. Now, Mr. Zak, you've just told us kind of
22 on the record and sort of off the record that what
23 we were just hearing from the village of
24 Libertyville was an emergency warning device; is
L.A. REPORTING (312) 419-9292
281
1 that correct?
2 A. That's correct.
3 Q. And you understand that under the Illinois
4 Pollution Control Board's noise regulations there
5 is an exemption. That noise is not regulated by
6 the Pollution Control Board, is it, the warning
7 sound that we just heard from the village of
8 Libertyville?
9 A. What the Board has done is given that type
10 of device an exemption from the regulations.
11 Q. And you're familiar with those
12 regulations?
13 A. Yes.
14 Q. And that's part of your responsibilities
15 as the IEPA's sole noise advisor to know the
16 regulations and to help citizens and
17 municipalities interpret those regulations,
18 correct?
19 A. That's correct.
20 Q. And have you looked at the question of
21 whether back-up warning beepers on trucks in
22 loading dock areas qualify under the Board
23 regulations as emergency warning devices?
24 A. Yes, I have.
L.A. REPORTING (312) 419-9292
282
1 Q. And have you reached an opinion concerning
2 whether the exemption for emergency warning
3 devices applies to back-up beepers on trucks
4 operating in loading docks?
5 A. Yes, and largely based upon the case I
6 testified in a couple years ago. It was a Hoffman
7 versus City of Columbia.
8 MR. KOLAR: Objection. I think this is a
9 legal conclusion for the Pollution Control Board
10 to make.
11 MR. KAISER: I would agree that it is, but
12 I think Mr. Zak's opinion is relevant and could be
13 considered by the Board, but it certainly would be
14 the Board's definitive ruling, although to the
15 extent he's going to cite us to a previous Board
16 ruling, I would think that that would be helpful
17 to the litigants and helpful to the Board as well.
18 HEARING OFFICER KNITTLE: I'll overrule
19 the objection and allow him to answer this
20 question.
21 BY THE WITNESS:
22 A. As I was saying, the Board decision on
23 that particular case on page 17 gave quite a bit
24 of comment on whether or not the back-up beeper on
L.A. REPORTING (312) 419-9292
283
1 a truck is an emergency warning device, and the
2 Board came to the conclusion that it was not, and,
3 therefore, it was -- it did come under the noise
4 regulations.
5 BY MR. KAISER:
6 Q. Now, we were -- before we were interrupted
7 by the warning beeper, we were talking about
8 prominent discrete tones, and you described such
9 tones as piercing, frequently irritating, sharp in
10 tone, raucous.
11 Do you recall your testimony?
12 A. That's correct.
13 Q. And has it been your experience during
14 your more than 15 years as the Illinois
15 Environmental Protection Agency's noise advisor
16 that citizens have frequently complained about the
17 sounds -- well, about prominent discrete tones?
18 A. Yes, they have. If I could kind of
19 clarify that a little bit without getting
20 technical.
21 Q. Please.
22 A. The -- that type of noise is more
23 irritating than a broadband type of noise, and
24 that's shown in the fact that under the Board
L.A. REPORTING (312) 419-9292
284
1 regulations for a prominent discrete tone, the
2 allowable limits for prominent discrete tones are
3 lower than they would be for a more broadband
4 noise.
5 Q. Now, after Joe Kolar, you, and I watched
6 the trucks move in and out of LTD's dock area, do
7 you recall that we then went inside the LTD
8 facility?
9 A. Yes, I do.
10 Q. And, actually, Jack Voight, one of LTD's
11 officers, gave us a tour of the facility, did he
12 not?
13 A. Yes, he did.
14 Q. And what do you recall seeing when you
15 were inside LTD's facility?
16 A. I observed thousands of what I would call
17 relatively small cardboard boxes being conveyed to
18 the loading area. Having -- I looked at some of
19 the boxes as I was curious as to see what was
20 involved, and it was a variety of items that I
21 would typically classify as knickknacks myself,
22 small, relatively inexpensive items that would
23 typically be given to friends on holidays, things
24 like that.
L.A. REPORTING (312) 419-9292
285
1 It appeared to be a -- the items
2 themselves were of a -- I thought more of a
3 personal nature than a business nature.
4 MR. KOLAR: Objection. I think the
5 question was what did you observe in the
6 warehouse, not can you describe the nature of the
7 merchandise LTD sells.
8 HEARING OFFICER KNITTLE: Sustained.
9 BY MR. KAISER:
10 Q. Allow me to show you what's previously
11 been introduced and received into evidence as LTD
12 Commodities -- well, Complainants' Exhibits 1 and
13 2, and there's two catalogues published by LTD
14 Commodities.
15 MR. KOLAR: Just for the record, I guess
16 another objection is that in his deposition he
17 gave an opinion regarding the classification of
18 LTD, and now I see what's happening here is he's
19 going to go through catalogues and try to explain
20 why -- you know, how things retail or home to home
21 sales, and it would be beyond the disclosure made
22 for this witness.
23 HEARING OFFICER KNITTLE: I'll note your
24 objection for the record. I'll also note that if
L.A. REPORTING (312) 419-9292
286
1 he did offer a different opinion on this that he
2 may or may not offer in the future, you can
3 impeach him on cross-examination.
4 BY MR. KAISER:
5 Q. Mr. Zak, when you toured the LTD
6 Commodities facility during the summer of 1999,
7 did you form an understanding about what products
8 LTD sold?
9 A. Yes, I did.
10 Q. And now you've had a chance to look at
11 LTD's catalogues. Is the understanding you formed
12 in the summer of 1999 concerning LTD's product
13 line confirmed by reference to Complainants'
14 Exhibits 1 and 2, the LTD catalogues?
15 A. Yes.
16 Q. And you understood when you were in the
17 warehouse in the summer of 1999 that LTD sold what
18 you term knickknacks; is that correct?
19 A. That's correct.
20 Q. And you saw approximately a 350,000 square
21 foot warehouse filled with knickknacks, right?
22 A. That's correct.
23 Q. And you saw people moving those
24 knickknacks from one part of the warehouse to the
L.A. REPORTING (312) 419-9292
287
1 other and putting those knickknacks on trucks and
2 watching the trucks haul the knickknacks away; is
3 that right?
4 A. Yes.
5 Q. Now, in your capacity as the Illinois
6 Environmental Protection Agency's noise advisor,
7 are you -- have you familiarized yourself and
8 become acquainted with the noise regulations
9 promulgated by the Illinois Environmental
10 Protection Act?
11 A. Yes, I have.
12 Q. And you're aware that those regulations
13 impose different numeric limits depending on
14 whether the land use generating the noise is a
15 Class A use, a Class B use, or a Class C, or
16 Class, is it, U?
17 A. That's correct, U.
18 Q. So under the state of Illinois' noise
19 regs, there are essentially four classes that any
20 given property would fall into; is that correct?
21 A. That's correct.
22 Q. And it's part of your job to determine and
23 assist citizens and municipalities in determining
24 the appropriate classification for the land use
L.A. REPORTING (312) 419-9292
288
1 that's generating noise that's the subject of
2 complaint?
3 A. Yes, it is.
4 Q. And have you done that consistently
5 throughout your 15 years as the noise advisor?
6 A. Well, I've done it consistently throughout
7 my 27 years with the agency.
8 Q. And have you formed an opinion -- let me
9 back up.
10 Showing you what I'm marking for
11 purposes of identification as Complainants'
12 Exhibit 39.
13 (Complainants' Exhibit No. 39
14 marked for identification,
15 11-2-99.)
16 BY MR. KAISER:
17 Q. It's a copy -- well, I'll show it to you,
18 Mr. Zak. Tell me if you recognize it.
19 A. Yes. It's a copy of the Board's noise
20 regulations.
21 Q. And that's a document you work with
22 virtually every day; is that right?
23 A. That's correct.
24 Q. And is there an appendix to those noise
L.A. REPORTING (312) 419-9292
289
1 regulations?
2 A. Yes. There's Appendix A and B. The one
3 that's normally used would be Appendix B.
4 Q. And when you say normally used, that means
5 normally used to determine the appropriate land
6 classification for the noise source; is that
7 correct?
8 A. That's correct.
9 Q. And that Appendix B, do you know where the
10 Board looked to create that Appendix B?
11 A. It was created from the standard land use
12 coding system of 1969 which was a portion really
13 of the appendix. Probably the most salient
14 feature of the appendix would be the land
15 classifications to the extreme right on each page,
16 and those were inserted by collaboration of the
17 Agency and the Pollution Control Board.
18 Q. So the Agency has actually modified in a
19 significant respect the Standard Land Use Coding
20 Manual appendix?
21 A. That's correct.
22 Q. It borrowed the appendix from the Standard
23 Land Use Coding Manual, but then annotated that
24 appendix. Is that a fair statement?
L.A. REPORTING (312) 419-9292
290
1 A. Yes.
2 Q. And in particular, the Board -- correct me
3 if I'm wrong, but is it your understanding that
4 the Board took the land classification system that
5 had been developed by this Standard Land Use
6 Coding Manual and used that as -- it gave -- that
7 manual gave descriptive descriptions of land uses,
8 correct?
9 A. That's correct.
10 Q. And then the Board, in association with
11 the Illinois Environmental Protection Agency, in
12 the far right-hand column of Exhibit 39, there
13 determined which of those land uses would best be
14 classified as Class A, which are most
15 appropriately classified as Class B, which are
16 Class C, and then which are other, Class U; is
17 that right?
18 A. That's correct.
19 Q. And that classification that the Board in
20 conjunction with the Illinois Environmental
21 Protection Agency did, that is something different
22 and independent of whatever the Standard Land Use
23 Coding Manual people and the department of
24 transportation who commissioned that manual were
L.A. REPORTING (312) 419-9292
291
1 doing; is that right?
2 A. Yes.
3 MR. KOLAR: Objection, foundation as to
4 whether he was part of it in 1972 for assigning
5 the classifications.
6 MR. KAISER: Well, I'll lay a little
7 foundation.
8 BY MR. KAISER:
9 Q. What's the basis for your knowledge about
10 how the Agency came to use what we call the SLUCM
11 code, S-L-U-C-M, and incorporate the SLUCM code
12 into the noise regulations?
13 A. At the time, I was involved in working
14 with the appendix, helping to assemble it,
15 gathering field data to support it, and attending
16 public hearings where the Board was considering in
17 what form to adopt it and also involved in the
18 arena was industry who had input also at public
19 hearings as far as how the land classifications
20 would be designated.
21 Q. So you have personal knowledge of the
22 process by which the Board adopted this SLUCM code
23 and incorporated it into the noise regulations?
24 A. Yes, I do.
L.A. REPORTING (312) 419-9292
292
1 Q. And for 27 years, part of your job has
2 been to apply those regulations and give guidance
3 concerning the proper application of those
4 regulations?
5 A. That's correct.
6 Q. Now, on the basis of your experience and
7 education, have you formed an opinion as to the
8 proper classifications of the land use for LTD's
9 Bannockburn facility under the Illinois noise
10 regulations?
11 A. Yes. I would consider it Class B
12 property.
13 Q. And what is the basis for your opinion
14 that under the Board's regulations LTD's
15 Bannockburn facility would best be classified as a
16 Class B land use?
17 A. It would be based upon Appendix B and
18 looking up -- it's largely a warehousing at that
19 location, and warehousing under the Board's
20 Appendix B would be considered a Class B land use.
21 Q. Are you aware that LTD Commodities has
22 argued in this case that it is a Class C facility,
23 that its principal land use activity is freight
24 forwarding and not warehousing or sales?
L.A. REPORTING (312) 419-9292
293
1 A. Yes, I've heard that.
2 Q. And, in fact, I sent you a letter that
3 Mr. Kolar -- in which Mr. Kolar laid out that
4 argument to the village of Bannockburn?
5 A. That's correct.
6 Q. Do you agree or disagree with LTD's
7 position that they are more appropriately
8 considered a freight forwarding activity and not a
9 warehouse or sales activity?
10 A. Yes. I disagree and in furtherance of
11 that, what I have done for the last 27 years was
12 to do some research on various facilities to
13 determine as closely as possible what was the
14 major activity taking place at a certain
15 facility. In this case here, I went on the
16 Internet to their home page.
17 Q. Their home page being LTD Commodities'
18 home page?
19 A. Yes, and read what was on the home page as
20 far as merchandise and as far as ordering from the
21 facility. On the initial page of the web site,
22 they mention that it's a business-to-business-type
23 of operation, but going into the order forms, I
24 noticed that the nature of the merchandise was not
L.A. REPORTING (312) 419-9292
294
1 what I would typically call a business-type
2 merchandise, but the one factor that led me to
3 believe that it's not business-to-business
4 exclusively by any means is the example they use
5 containing Illinois sales tax, and it's a well
6 known thing in business, which I'm a small
7 business owner myself --
8 MR. KOLAR: Objection to his testimony
9 regarding sales taxes.
10 HEARING OFFICER KNITTLE: Mr. Kaiser.
11 MR. KAISER: If I may without --
12 HEARING OFFICER KNITTLE: Do you want me
13 to rule on that or do you want to --
14 MR. KAISER: If I may ask some questions
15 in furtherance and, perhaps, you could hold off on
16 the ruling until we --
17 HEARING OFFICER KNITTLE: Let's reserve
18 ruling.
19 MR. KAISER: -- consider the next --
20 MR. KOLAR: I'd move to strike that
21 testimony regarding sales taxes otherwise it's
22 going to be left hanging there.
23 HEARING OFFICER KNITTLE: Has he testified
24 about sales tax yet?
L.A. REPORTING (312) 419-9292
295
1 MR. KOLAR: He mentioned in my experience
2 with sales tax. It seems implied from his
3 testimony that because there's a sales tax,
4 therefore, it's something other than
5 business-to-business.
6 HEARING OFFICER KNITTLE: I don't think he
7 offered that opinion yet, but we can strike the
8 sales tax sentence until supported by some
9 foundation.
10 MR. KAISER: Very good.
11 (Complainants' Exhibit No. 40
12 marked for identification,
13 11-2-99.)
14 BY MR. KAISER:
15 Q. I'm showing what you I've marked for
16 purposes of identification as Complainants'
17 Exhibit 40. I'd ask you to take a look at that.
18 Could you describe for us what this
19 four -- five-page document is, Mr. Zak?
20 A. Yes. I prepared it.
21 Q. How did you prepare this document?
22 A. Last night at the office as I was
23 testifying I went on the Internet and pulled up
24 the home page for LTD Commodities and began to
L.A. REPORTING (312) 419-9292
296
1 read a description of the activities taking place
2 at the facility. I noticed that in some of the --
3 I think in the letter from Mr. Kolar had mentioned
4 that it was a business-to-business type of
5 operation and in their own web page they mention
6 it's a business-to-business operation, but a lot
7 of the -- the way the web page was assembled, it
8 didn't have that appearance.
9 For example, they mentioned the
10 catalogue. You have a picture there of two ladies
11 sitting at a table in what appears to be a home
12 discussing -- looking at the catalogue, not what
13 my experience would be where you have a business
14 -- a strictly business-to-business type of
15 operation.
16 The other thing looked at on the same
17 web page was how to order from LTD Commodities,
18 and I went ahead and everything I'm testifying to
19 I printed off the LTD web page. They list an
20 order form there, and the items themselves caught
21 my eye. Again, so I'm thinking is this
22 business-to-business and the example order is for
23 birthstone bells, and it seemed like an odd thing
24 for a business to order and also in a relatively
L.A. REPORTING (312) 419-9292
297
1 small quantity. I'm talking about quantities of
2 three and four. The total order is around $55.00
3 in their example, and continuing on with the
4 example and going through from form to form, they
5 also list Illinois state sales tax, and, again,
6 based on my experience both working for the state
7 and in a small business myself, Illinois sales tax
8 is normally only levied --
9 MR. KOLAR: Objection. He's not competent
10 to testify regarding when it's appropriate to
11 charge Illinois sales tax, and he's not an
12 attorney. He's been with the EPA for 27 years. I
13 don't think it's within his expertise as well.
14 HEARING OFFICER KNITTLE: Mr. Kaiser,
15 we're back to where we started.
16 MR. KAISER: Mr. Zak has told us that in
17 the course of his work for the Illinois
18 Environmental Protection Agency and in his own
19 capacity, individual capacity, as a small
20 businessman that he is knowledgeable. Now, I can
21 go into the foundation of his knowledge.
22 HEARING OFFICER KNITTLE: At this point if
23 you don't, I'm going to sustain the objection.
24 MR. KAISER: All right.
L.A. REPORTING (312) 419-9292
298
1 BY MR. KAISER:
2 Q. Now, Mr. Zak, you've just stated that you
3 have a familiarity with the laws concerning when
4 the state of Illinois requires a seller to collect
5 sales tax; is that true?
6 A. That's correct.
7 Q. And what is the basis for your information
8 in that respect? How have you acquired that
9 understanding?
10 A. I have been a tree farmer for the last 12
11 years, and I run a regular tree farming
12 operation. When I purchase things for my tree
13 farm, if I supply the number identifier for my
14 tree farm, on most items I do not have to pay
15 sales tax.
16 I never have gone through the trouble
17 of obtaining a tax number from the department of
18 revenue. However, if I were to do that, I would
19 have to pay a sales tax on anything that was going
20 to be used in the business of producing timber.
21 Q. Did you make any calls to the
22 representative of the Illinois Department of
23 Revenue and review with that person the
24 regulations concerning collection of sales tax in
L.A. REPORTING (312) 419-9292
299
1 the state of Illinois?
2 A. I called a CPA who works for the state --
3 MR. KOLAR: Objection, hearsay to anything
4 that the CPA said.
5 MR. KAISER: Well, let's just hear what he
6 did, and then we'll see if there's a foundation.
7 BY MR. KAISER:
8 Q. Who was this CPA who works for the state
9 of Illinois?
10 A. His name is Joe Taylor. He's been working
11 for the state for about 20 years. He is a
12 licensed CPA, and he also has a firm as a small
13 business on the side. I ran by him and asked him
14 for his experience as far as sales tax is
15 concerned and described the situation I had here
16 with LTD and asked him for an opinion as a CPA,
17 and he gave me the opinion that --
18 MR. KOLAR: Objection, hearsay.
19 HEARING OFFICER KNITTLE: I can't see how
20 this isn't hearsay, Mr. Kaiser, but if you have
21 something else.
22 MR. KAISER: Well, I think it's --
23 BY MR. KAISER:
24 Q. You did this during the course of your
L.A. REPORTING (312) 419-9292
300
1 work as IEPA's noise advisor, correct?
2 A. That's correct.
3 Q. And is it customary while you're working
4 in your capacity as noise advisor to when you have
5 a question to talk with other members of the state
6 government to get information about issues, in
7 this case, collection of sales tax?
8 A. Yes. It's a regular part of the job
9 investigating any complaint and to find whatever
10 resources I can find that can supply reliable
11 information regarding a complaint.
12 Q. And in this case, you had a question about
13 sales tax and you talked to somebody in a sister
14 agency or department within the state; is that
15 right?
16 A. That's correct.
17 Q. And after --
18 HEARING OFFICER KNITTLE: I'm going to
19 stop you here. I'm not going to allow him to tell
20 what the CPA thinks about whether it's a sales tax
21 or not. I don't think it's fair to the other
22 party not to have that person available for
23 cross-examination, and we don't know anything
24 about this person.
L.A. REPORTING (312) 419-9292
301
1 However, in regards to the other
2 instance, I do think you've laid enough foundation
3 now. You can ask Mr. Zak why he doesn't think
4 this is a business-to-business situation in terms
5 of the sales tax.
6 MR. KAISER: All right. Thank you.
7 BY MR. KAISER:
8 Q. Is it your opinion that LTD is not engaged
9 exclusively in business-to-business sales?
10 A. Yes, it is.
11 Q. And what's the basis for your opinion?
12 A. The basis for it is actually several
13 things. The tone and demeanor of the catalogue,
14 of the ordering form, it to me seems to indicate
15 while there may be some business-to-business
16 exchange going on that it's largely oriented
17 toward private individuals.
18 Q. And this document --
19 MR. KOLAR: I would object and move to
20 strike that as speculative. He says tone and
21 demeanor of the catalogue seems to indicate, and
22 this is also an opinion that was never disclosed
23 in his deposition because it wasn't disclosed in
24 the written disclosure by Mr. Kaiser that he was
L.A. REPORTING (312) 419-9292
302
1 going to get up here and testify how this is
2 really not business-to-business, it's business to
3 homes based on his experience selling Christmas
4 trees. It's completely unfair to LTD, and this
5 opinion should not be allowed.
6 HEARING OFFICER KNITTLE: I would -- and
7 I'll let you respond.
8 MR. KAISER: If I may be heard.
9 HEARING OFFICER KNITTLE: Well, why don't
10 you respond first?
11 MR. KOLAR: My final thing, I guess, and
12 I'm sorry, Steve, in federal court, you have this
13 Daubert issue. It's more scientific, but you have
14 to have a reasonable basis for giving opinions in
15 federal court and even state court. This would
16 never pass. Even though it's not a scientific
17 issue, this would never pass a Daubert analysis as
18 to whether he has a proper basis for giving an
19 opinion that LTD is not a business-to-business
20 company.
21 He can't say seems to indicate and
22 tone and demeanor of a written document to support
23 the basis for this opinion.
24 MR. KAISER: I would disagree. I mean,
L.A. REPORTING (312) 419-9292
303
1 Daubert is the case that controls so-called junk
2 science and is there consensus within the
3 community as to what a scientific principle is,
4 particularly with respect to causation. So I
5 don't think a Daubert analysis and what a federal
6 court would do is appropriate here at all.
7 We're talking about a noise advisor
8 for the Illinois Environmental Protection Agency
9 in a noise case talking about how he makes a
10 decision, whether it's Class B or Class C use, and
11 I would note that certain of Mr. Zak's opinions
12 are essentially offered in response to information
13 that was developed after Mr. Zak's deposition and
14 that is the opinion testimony of Allen Kracower
15 that we expect to hear in LTD's case in chief.
16 So to a certain degree just as we're
17 being flexible with the order of presentation, Mr.
18 Zak has driven up here from Springfield today. We
19 don't necessarily want to have to ask him to drive
20 back up Friday. So we're trying to get as much
21 information from Mr. Zak while he's here,
22 including the basis for this determination that
23 LTD is a Class B and not a Class C, and part of
24 that determination goes to this issue of is LTD
L.A. REPORTING (312) 419-9292
304
1 selling primarily or exclusively
2 business-to-business or is LTD really more of a
3 retail sales group, but as it's not a central --
4 it's part of a central part of the case, but I
5 don't want to spend a half hour on this frankly.
6 So what I would propose at this point
7 is to ask Mr. Zak a few questions about this
8 document deposition -- Hearing Exhibit 40 and then
9 move on.
10 HEARING OFFICER KNITTLE: Mr. Kolar?
11 MR. KOLAR: But I have a pending objection
12 to his opinion.
13 HEARING OFFICER KNITTLE: Yeah, I think
14 so. Here's how I would see that. Here's how I do
15 see that as a matter of fact. I am inclined to
16 let it in. This is an administrative proceeding.
17 However, I would let it in in terms of the
18 objection to the testimony and him not having the
19 appropriate foundation or knowledge.
20 However, if this wasn't disclosed
21 during discovery, and it seems like this was the
22 Schomer issue -- was this issue before you two
23 when Mr. Zak had his deposition? That's my
24 question.
L.A. REPORTING (312) 419-9292
305
1 MR. KAISER: Well, we didn't have
2 Kracower's opinion or we had a one paragraph
3 opinion, and then we had three hours of
4 explication on Kracower's opinion. So...
5 HEARING OFFICER KNITTLE: Was that the
6 video evidence deposition? Is that the evidence
7 deposition?
8 MR. KAISER: No. This is a separate
9 deposition, discovery deposition.
10 HEARING OFFICER KNITTLE: But there's, you
11 know -- go ahead.
12 MR. KOLAR: On that issue specifically,
13 what I was going to point out is Michael Hara gave
14 his deposition on April 16th, 1999, and he
15 specifically addressed the nature of his business
16 that it was business-to-business. Mr. Zak gave
17 his deposition on July 9th, 1999. So the issue
18 was already made known to Mr. Kaiser, what is
19 that, three months earlier.
20 HEARING OFFICER KNITTLE: Right.
21 MR. KAISER: That's really not the heart
22 of their case. They've hired a guy at 285 an hour
23 to come in here and tell the Board that LTD,
24 despite the most obvious signs that it's a Class B
L.A. REPORTING (312) 419-9292
306
1 use, is, in fact, something other than a warehouse
2 and is a Class C.
3 Now, I represent citizen complainants
4 before a citizen board who are relying on the
5 expertise of the state's agency to try to reach a
6 just result here, and to use the procedural
7 maneuverings and to tell me because Mike Hara in
8 April said something, Mike Hara is not the crux of
9 their case on whether it's a B or a C. They've
10 got their expert at 285 an hour who's going to
11 come in here and try to bamboozle the Board.
12 HEARING OFFICER KNITTLE: Well, let me
13 make a ruling. I don't think the Board is quite
14 that easily bamboozled. However, this is a breach
15 of the discovery provisions, and I'm not going to
16 allow it. What I will allow is if you want to
17 offer it as an offer of proof, it could be before
18 the Board and they could make a decision on it,
19 but if this -- this seems to me to have been a
20 crux of the case prior to the deposition and prior
21 to your discovery response about the testimony of
22 Mr. Zak.
23 MR. KAISER: No. We've told --
24 HEARING OFFICER KNITTLE: Hold on. Hold
L.A. REPORTING (312) 419-9292
307
1 on. I've already heard what I'm going to hear on
2 this, and so since I think it was an issue prior
3 to Zak's disclosure of what he would be testifying
4 to, I think not to disclose that he would be
5 testifying to this is not proper. That's why I
6 wouldn't allow it, but if you want to make an
7 offer of proof as to what he would testify to if I
8 allowed it, I would allow that. You could make an
9 oral offer of proof.
10 MR. KAISER: Let me just point out we
11 always advised LTD that Mr. Zak would testify that
12 LTD is a Class B and not a Class C land use. So
13 there's no surprise and there's no violation
14 there.
15 HEARING OFFICER KNITTLE: Well, that's
16 what Mr. Kolar is claiming.
17 MR. KAISER: Well, he's -- that's what you
18 understand. I don't think that's a fact.
19 HEARING OFFICER KNITTLE: Is that not
20 correct, Mr. Kolar?
21 MR. KOLAR: Is it a warehouse?
22 MR. KAISER: No. You've known from the
23 minute I disclosed Greg Zak as a potential hearing
24 witness that Mr. Zak would come here and he would
L.A. REPORTING (312) 419-9292
308
1 say LTD is a Class B use.
2 MR. KOLAR: True, but that's --
3 MR. KAISER: The bases have been expanded
4 because Allen Kracower, the expert, spent three
5 hours justifying his opinion. Mr. Zak has
6 reviewed Kracower's opinion and, in part, is
7 responding to what we're going to hear on
8 Wednesday or Thursday. Now, that's my point. In
9 rebuttal, I don't have to disclose these
10 additional bases. I could bring Mr. Zak back if
11 he was willing and if the state wants to pay for
12 him to spend a second day up here we could get him
13 back on Friday and do it in order and have him
14 respond to Kracower's opinions.
15 I've tried to speed up the process by
16 sending Mr. Zak a copy of the Kracower deposition
17 which, again, the complainants had to spend
18 several hundred dollars to purchase so that we
19 could present that to Mr. Zak in an effort to have
20 him up here only once, but if the Board wants us
21 to, you know, shuttle him back and forth, if he's
22 willing to do that, we could do it.
23 I don't think it's appropriate. I
24 don't think it's necessary. I don't think it's
L.A. REPORTING (312) 419-9292
309
1 surprise. I think his opinion can be attacked on
2 cross. He can argue about the weight of the
3 opinion, but to deny the opportunity to present
4 his opinion here --
5 HEARING OFFICER KNITTLE: Well, I haven't
6 denied the opportunity frankly. You're going to
7 have the opportunity to do it as an offer of
8 proof, but that is a little bit different than I
9 understood what was the situation.
10 MR. KOLAR: I acknowledge I knew he was
11 going to say it was Class B, but the issue is did
12 I have notice that he was going to come in and say
13 in my opinion LTD is not business-to-business,
14 it's business to home. Now, again, Mike Hara gave
15 his dep on August -- excuse me, April 16th, 1999.
16 Steve Kaiser took his dep.
17 Page 140; question, how would you
18 distinguish between a distribution house and a
19 mail-order retail house; answer, well, we're not a
20 retail mail-order company. We're a
21 business-to-business mail-order company. We do
22 not sell retail.
23 August -- April 16th he knew that
24 Mike Hara had said that. June 8th, 1999, two
L.A. REPORTING (312) 419-9292
310
1 months later approximately, he discloses in
2 writing what Mr. Zak is going to testify to and
3 his other opinion witnesses, and there's nothing
4 in here about that LTD is not a
5 business-to-business operation.
6 HEARING OFFICER KNITTLE: What does it
7 say, though, about Class B versus Class C?
8 MR. KOLAR: It says Mr. Zak may opine that
9 LTD is a B classification under the standard land
10 use coding system. That's it.
11 MR. KAISER: And then you took Mr. Zak's
12 deposition on July 9th.
13 MR. KOLAR: Right. On July 9th, I took
14 his deposition. On July 9th I asked him did you
15 ever look through LTD's catalogue before? No.
16 Have you ever looked at LTD's web site before?
17 No.
18 MR. KAISER: And we didn't offer that.
19 MR. KOLAR: Now, he comes in with pages
20 from LTD's web site looking over the catalouge
21 saying now I've looked over the catalogue, and
22 these are the types of things that people have in
23 their home and this isn't really
24 business-to-business.
L.A. REPORTING (312) 419-9292
311
1 HEARING OFFICER KNITTLE: Would you allow
2 -- I mean, would you have an objection if he came
3 back on rebuttal?
4 MR. KOLAR: No, I wouldn't.
5 HEARING OFFICER KNITTLE: It doesn't seem
6 like there would be an objection to that.
7 MR. KOLAR: I wouldn't make him drive
8 back up for rebuttal purposes, but I think the
9 rebuttal is just a maneuver to try to get around
10 the fact that he didn't comply with your orders or
11 the Pollution Control Board's orders regarding
12 disclosure of opinions.
13 HEARING OFFICER KNITTLE: It doesn't seem
14 as if his opinion was properly disclosed, but he
15 could, in fact, testify to a significant portion
16 of this on rebuttal. You see what I mean, Mr.
17 Kolar? You're going to have somebody come in and
18 testify why it's Class B and why it's
19 retail-to-retail -- Class C, excuse me, and why
20 it's retail-to-retail, correct?
21 MR. KOLAR: Right.
22 HEARING OFFICER KNITTLE: And I think Mr.
23 Kaiser's argument is that he would have then the
24 right to bring Mr. Zak back on rebuttal, is that
L.A. REPORTING (312) 419-9292
312
1 correct, Mr. Kaiser?
2 BY MR. KOLAR:
3 Q.
4 MR. KAISER: Yes.
5 HEARING OFFICER KNITTLE: You don't
6 dispute that, Mr. Kolar?
7 MR. KOLAR: Right.
8 HEARING OFFICER KNITTLE: I understand --
9 MR. KOLAR: If he was qualified to give an
10 opinion on business-to-business.
11 HEARING OFFICER KNITTLE: Right, and I
12 understand that it seems as if it's an end run
13 around the discovery provisions, and I am inclined
14 to agree that it is, but if it's going to save Mr.
15 Zak the trouble of coming back, I'd allow him to
16 testify to it and give you a standing objection.
17 MR. KOLAR: Again, I'm not saying he
18 should come back and do this on rebuttal.
19 HEARING OFFICER KNITTLE: I understand.
20 MR. KOLAR: I'm saying that -- well, I
21 guess it's an end run, but primarily it's pure
22 speculation and it's junk science. It's not
23 science. It's junk business, and it's total
24 speculation by someone who has no degree in
L.A. REPORTING (312) 419-9292
313
1 business. He has a degree in biology I heard and
2 public administration, and now he's going to give
3 an opinion on the nature of a business that he's
4 never been involved with.
5 HEARING OFFICER KNITTLE: I agree, and I'm
6 hoping that the Board will have the -- well, I
7 know the Board will have the necessary
8 intelligence to award the appropriate weight to
9 Mr. Zak's testimony. I do want to give you a
10 standing objection, and if, in fact, you wanted to
11 maintain your objection, I would -- I would
12 probably sustain that, but he would be allowed to
13 come back for rebuttal, and we don't want to make
14 him come back for rebuttal.
15 So this is an unusual procedural
16 circumstance, but I think it is procedurally
17 incorrect because his opinions were not disclosed
18 on discovery. So it puts me in a difficult
19 position as well because I'm inclined to sustain
20 your objections. I think they're proper and I
21 think they're well made. However, I also want to
22 work with the EPA if I can on this one and allow
23 him to testify without coming back on Friday.
24 MR. KOLAR: I would have the same
L.A. REPORTING (312) 419-9292
314
1 objection if he came on Friday and gave his
2 testimony on rebuttal --
3 HEARING OFFICER KNITTLE: Right.
4 MR. KOLAR: -- regarding his competence or
5 his -- no offense. I mean, he's not a person who
6 analyzes businesses and talks about sales tax.
7 HEARING OFFICER KNITTLE: That I
8 understand, and if that's the only remaining
9 objection, that I would overrule and allow that to
10 come in. So I think we're all on the same page.
11 MR. KAISER: I think you're right.
12 BY MR. KAISER:
13 Q. Mr. Zak, you have in front of you
14 Complainants' Exhibit 40.
15 A. Yes.
16 Q. And that's a five-page document which
17 consists of certain screens that you printed out
18 from LTD Commodities' web page last night?
19 A. That's correct.
20 Q. And these are true and accurate copies of
21 the screens that you printed out last night?
22 A. That's correct.
23 MR. KAISER: I would move at this time for
24 admission into evidence of Complainants' Exhibit
L.A. REPORTING (312) 419-9292
315
1 40.
2 HEARING OFFICER KNITTLE: Mr. Kolar.
3 MR. KOLAR: Well, I would just have the --
4 since it relates to his opinion as to
5 business-to-business, I'd have the same
6 objection. He's not qualified to give that
7 opinion. So, therefore, that shouldn't come in.
8 HEARING OFFICER KNITTLE: Okay. Anything
9 further, Mr. Kaiser?
10 MR. KAISER: I think it should come in,
11 and --
12 HEARING OFFICER KNITTLE: Well spoken.
13 MR. KAISER: That's it.
14 HEARING OFFICER KNITTLE: We'll let it
15 in.
16 BY MR. KAISER:
17 Q. Now, Mr. Zak, after we got done touring
18 the LTD interior with Mr. Kolar and Mr. Voight
19 back on what appears to be July 9th because it was
20 the same day you gave your deposition, wasn't it?
21 A. That's correct.
22 Q. All right. Do you recall that we then
23 drove -- no, actually walked through and around
24 the north -- the fence at the north end of the LTD
L.A. REPORTING (312) 419-9292
316
1 property and walked through the backyards of the
2 Rotis, Mr. Rosenstrock, and all the way over to
3 the Weber's house, and while I was doing that, I
4 was showing you where those homes are located on
5 Respondent's Exhibit 89?
6 Do you recall Mr. Kolar, you, and me
7 going through the fence and into the Roti's
8 backyard and then over to Mr. Rosenstrock's and to
9 the Weber's?
10 A. Yes, I do.
11 Q. Did you make observations -- why did you
12 do that, in order to see the proximity of the
13 complainants to the LTD facility?
14 A. That's correct.
15 Q. And then after we did that, we drove to
16 the village of Bannockburn and you sat and gave
17 your deposition; isn't that right?
18 A. Yes.
19 MR. KAISER: May we go off the record for
20 one second?
21 HEARING OFFICER KNITTLE: Sure.
22 (Discussion had
23 off the record.)
24 (Break taken.)
L.A. REPORTING (312) 419-9292
317
1 HEARING OFFICER KNITTLE: We're back on
2 the record after a brief break continuing the
3 direct examination of Greg Zak.
4 MR. KAISER: Thank you.
5 BY MR. KAISER:
6 Q. Mr. Zak, I'd like to finish up concerning
7 your opinion that LTD is most appropriately
8 classified as a Class B land use. I sent you a
9 copy of Allen Kracower, K-r-a-c-o-w-e-r, Allen
10 Kracower's deposition transcript, did I not?
11 A. That's correct.
12 Q. And you understand that Mr. Kracower is
13 LTD's land use planning expert; is that right?
14 A. That's my understanding.
15 Q. And as I understood Mr. Kracower's
16 opinion, and you correct me if your understanding
17 of his opinion as a result of having reviewed his
18 deposition transcript differs, but what I
19 understood him to say essentially is because the
20 noise source at LTD is the dock area and the dock
21 area involves the movement of freight that the
22 appropriate land classification would be for the
23 freight forwarding and the freight movement
24 activities and because freight forwarding and
L.A. REPORTING (312) 419-9292
318
1 freight moving is a Class C, the entire LTD
2 operation should be considered a Class C.
3 Is that, in part, what you understood
4 Mr. Kracower to be saying?
5 A. That was my understanding.
6 Q. And have you given some thought as to
7 whether or not Mr. Kracower's method of applying
8 Appendix B of the Board's regulations is
9 appropriate?
10 A. Yes, I have.
11 Q. And what is your opinion?
12 A. My opinion is that what we've done for 27
13 years is look at the predominant use of the
14 facility, and based on the predominant use, that's
15 how we would classify the land use.
16 MR. KOLAR: And just for the record, this
17 would be rebuttal testimony I take it?
18 MR. KAISER: Yes.
19 HEARING OFFICER KNITTLE: Okay. Yeah.
20 That is noted and thank you.
21 BY MR. KAISER:
22 Q. I'm sorry. Because of the objection, I
23 didn't clearly hear your opinion.
24 Could you state it again, please?
L.A. REPORTING (312) 419-9292
319
1 A. Yes. Looking at the facility and taking
2 the way the facility is normally used, the
3 majority of the facility is normally used, that
4 would be the basis for determining land
5 classification, and as you've mentioned, the truck
6 activity at the north end of the facility is one
7 of the subsets of the main set of activities
8 taking place at that facility.
9 I could liken it to -- or the Board
10 has had a number of cases of large supermarkets
11 having truck noise as a part of the operation of
12 the supermarket, and in those situations the land
13 has still been considered Class B land or
14 commercial as opposed to industrial.
15 Q. And that's because the dock activity
16 doesn't define the grocery store. If it's a
17 grocery store, it's businesses selling groceries
18 and not operating a truck dock; is that right?
19 A. That's correct.
20 Q. And applying that analysis to LTD, do you
21 understand that LTD's principal business is
22 selling knickknacks?
23 A. That's my definition, yes.
24 Q. And you haven't seen anything or heard
L.A. REPORTING (312) 419-9292
320
1 testimony or read any deposition transcripts that
2 would lead you to believe that LTD's principal
3 business operation is dock activities?
4 A. No, I have not.
5 Q. Now, I'd like to show you what I've marked
6 for purposes of identification as Complainants'
7 Exhibits 19 and 20. Complainants' 19 is a letter
8 from Tom Thunder to LTD Commodities dated January
9 8th, 1998, and Complainants' Exhibit 20 is a
10 letter from Paul Schomer to David Lothspeich,
11 L-o-t-h-s-p-e-i-c-h, dated January 26th, 1998.
12 Do you have those in front of you?
13 A. Yes, I do.
14 Q. And these two documents, during the
15 five-minute break that we just took, I showed you
16 these documents, didn't I?
17 A. Yes, you did.
18 Q. And, in fact, I believe I've sent you
19 copies of these documents in the past?
20 A. Yes. I've seen them before.
21 Q. Do you recall seeing these previously?
22 A. Yes, I have.
23 Q. And have you reviewed the noise
24 measurements that are contained in that document?
L.A. REPORTING (312) 419-9292
321
1 A. Yes, I have.
2 Q. And to be more precise, I'd like you to
3 turn in Tom Thunder's letter report of January
4 8th, 1998, first to Exhibit 1.
5 A. Yes.
6 Q. And you see Exhibit 1 is essentially a
7 diagram of the dock area?
8 A. Yes.
9 Q. And you see -- and, in fact, this is the
10 dock area where Joe, Jack Voight, you, and I
11 walked around back in July of 1999, right?
12 A. That's correct.
13 Q. And up here where there's an X and the end
14 you see Lake Forest, that X is in the approximate
15 location of Karen Roti's home; is that right?
16 A. Yes.
17 MR. KAISER: And just for the record,
18 please note that Karen Roti, one of the
19 complainants, joined the hearing approximately one
20 half hour ago.
21 BY MR. KAISER:
22 Q. All right. Now, if we turn to figure one
23 --
24 MR. KOLAR: Is this Exhibit 19?
L.A. REPORTING (312) 419-9292
322
1 MR. KAISER: I thought it was. What are
2 you showing it as? Nineteen, yeah.
3 MR. KOLAR: Do you have a map of a dock
4 area attached to your 19? I don't have one
5 attached to mine. That's all right.
6 BY MR. KAISER:
7 Q. Do you see figure one there? Do you have
8 figure one in front of you, Mr. Zak?
9 A. Yes, I do.
10 Q. And what do you understand -- what
11 information do you understand Tom Thunder is
12 trying to communicate in figure one?
13 A. The type of graph he's presented here is
14 one that would typically be used for impulsive
15 noise, and I'm taking that interpretation from the
16 verbal description he's got above the graph
17 describing such as heavy truck movement, impact
18 air brakes, impacts, things like that, and then in
19 addition, I notice that he's got a linear
20 integration period of five seconds, which is a
21 little bit usual.
22 Q. What does that mean, linear integration
23 period five seconds?
24 A. In the language of the Pollution Control
L.A. REPORTING (312) 419-9292
323
1 Board, that would be Leq.
2 Q. Leq?
3 A. And he's basically taking a five second
4 Leq.
5 On impulsive noise, if you -- in
6 order to really see a clear sample of the noise,
7 you would normally want the integration period to
8 be a second or even less than a second.
9 Q. Is it sometimes customary within the field
10 of acoustics to take a one-eighth second Leq when
11 you're trying to assess impulsive noise?
12 A. Yes. For the -- from the period of 1973
13 to 1987, the Agency, following the Board's
14 regulations, used an integration period of
15 one-eighth of a second for impulsive noise, and
16 then in '87, the adoption of the one-hour Leq, the
17 Board applied that to all the numerical
18 limitations across the board, including the
19 impulsive rule, which would be 901.104.
20 Q. And, I'm sorry, what is the appropriate
21 Leq for impulsive noise after 1987?
22 A. After 1987, it would be one hour.
23 Q. One hour.
24 And what is the effect of stretching
L.A. REPORTING (312) 419-9292
324
1 and expanding the Leq from as little as one-eighth
2 of a second to five seconds up to one hour? What
3 does that do in effect to impulsive noise?
4 A. Well, starting with the one-eighth of a
5 second, that covers many very quick -- quickly
6 occurring impulsive sounds. Using up to a
7 one-second Leq would also cover quite nicely the
8 longer duration impulsive-type sound, but once you
9 go beyond a period of about one second, say, to
10 five seconds, what in effect happens is if, say,
11 the sound is a second long, the instrumentation
12 would capture that number and then for the next
13 four seconds, there would be no sound.
14 So what the instrumentation would do
15 on a five-second integration period would be to
16 average the one second of sound with four seconds
17 of quiet or no sound into a five-second
18 calculation that would be significantly less than
19 what we would have obtained with a one-second
20 linear integration period.
21 Q. Is it fair to say that if you use a
22 five-second linear integration period you're
23 actually diluting the impact of the impulsive
24 noise?
L.A. REPORTING (312) 419-9292
325
1 A. Yes. That would be my opinion.
2 Q. Now, you described the air brake sounds
3 that you observed at LTD's dock areas in July of
4 1999 as being sudden like an explosion, no build
5 up, just an explosion of sound; is that right?
6 A. That's correct.
7 Q. And do you have an opinion as to whether
8 one could more accurately analyze the noise
9 generated by the release of air brakes by using a
10 shorter Leq period?
11 A. Yes. I think that a very short period of
12 time would give a truer picture of what is
13 actually being heard by anyone in the vicinity of
14 where the air brakes are being released.
15 Q. So is it fair to say that in order to
16 better understand how Karen Roti or Paul
17 Rosenstrock experience the sound of the release of
18 air from the air brakes, a linear integration
19 period of one second or one even one-eighth of a
20 second would be more effective?
21 A. Yes. In my opinion, it would be.
22 Q. Now, I'd ask you to turn to figure three
23 if you would, please.
24 Are you there?
L.A. REPORTING (312) 419-9292
326
1 A. Yes, I'm there.
2 Q. And do you understand that in figure three
3 Tom Thunder has attempted to graph the octave band
4 frequencies and the A-weighted sound levels in
5 decibels that were recorded by Roger Harmon on
6 9-24-97?
7 A. Yes.
8 Q. And do you see that Tom Thunder has chosen
9 to compare those levels to Illinois' nighttime
10 limits for Class C to Class A land?
11 A. Yes.
12 Q. And do you have an opinion as to whether
13 that's the appropriate numeric limit for
14 comparison?
15 A. Yes. I would say that's inappropriate,
16 that what he should have compared would be Class B
17 to Class A.
18 Q. And I'd like to turn your attention to
19 figure four, and I note that in figure four -- are
20 you there?
21 A. Yes.
22 Q. I note that in figure four, it appears
23 that there's now some fast time constant display
24 time equals one-eighth of a second, and I just
L.A. REPORTING (312) 419-9292
327
1 note that. I don't know if you're in a position
2 to explain or interpret that?
3 A. Yes, I could explain that.
4 Q. If you would, please.
5 A. Yes. The fast time constant would be
6 taking the energy average over a one-eighth of a
7 second period of time, very similar to a
8 one-eighth second Leq, although not defined in
9 exactly the same terms acoustically, but, again,
10 there's quite a bit of similarity between a
11 one-eighth of a second Leq and a one-eighth of a
12 second fast time constant.
13 Q. And so we see, if we were to compare the
14 results or the representations of the impulsive
15 noise in figure one with the representation of the
16 impulsive noise in figure four that those peaks in
17 figure four are more pronounced, that you have
18 peaks actually above DBs, at and above 60 DBs, and
19 in figure one you did not have any impulse noise
20 measurements approaching 60 --
21 A. That's correct.
22 Q. -- DBs?
23 Now, I know you have the Board's
24 regulations in front of you, and I don't know if
L.A. REPORTING (312) 419-9292
328
1 you can tell us offhand what the Board's
2 A-weighted limit is for impulsive noise during
3 nighttime hours, but if you can or could by
4 reference to the regulations, I would appreciate
5 it.
6 A. Yes. There are several land classes
7 listed. For land Class B, the daytime limit would
8 be 50, and the nighttime limit would be 45.
9 Q. And do you see on figure four of Tom
10 Thunder's January 8th letter, Complainants'
11 Exhibit 19, that there's a bold line that the key
12 indicates to be the impulse -- Illinois impulse
13 limit?
14 A. Yes.
15 Q. And it strikes me that Tom Thunder has
16 drawn that line at approximately 55 DBs?
17 A. I would call it more like 56.
18 Q. More like 56?
19 A. Yes.
20 Q. Do you know where Tom Thunder -- is there
21 a limit that's 56? Is that the Class C, Class A
22 nighttime -- daytime limit?
23 A. That's the Class C to A daytime limit.
24 Q. Are you aware that Karen Roti and Paul
L.A. REPORTING (312) 419-9292
329
1 Rosenstrock have complained principally about
2 noise from the LTD dock facilities during the
3 nighttime hours?
4 A. Yes.
5 Q. And, yet, do you see on figure four
6 anyplace where Tom Thunder compared the impulse
7 noise measurement levels he obtained with the
8 Illinois Class B to Class A nighttime limits?
9 A. No, I don't see that, and on figure four,
10 I notice that in the key there the measurements
11 were taken in the early a.m., which would be
12 nighttime, and it's standard policy with the
13 Agency if the measurements are taken at nighttime
14 to use the nighttime rule then to graph out the
15 measurements taken to see if they exceed the
16 Board's regulations or not. I notice here in
17 figure four, while they've taken nighttime
18 measurements, they're comparing it to a daytime
19 limit.
20 Q. And, in fact, they're comparing it to the
21 least stringent, Class C to Class A daytime limit?
22 A. That's correct.
23 Q. Now, I'd like you to take a look at Paul
24 Schomer's letter of January 26th, 1998,
L.A. REPORTING (312) 419-9292
330
1 Complainants' Exhibit --
2 A. Yes.
3 Q. -- 20.
4 And that, again, that was one of the
5 documents I showed you during the break, wasn't
6 it?
7 A. That's correct.
8 Q. And that's a document I've sent you
9 previously, is it not?
10 A. Yes, it is.
11 Q. And I direct your attention to the top of
12 page two of Dr. Schomer's letter of January 26th,
13 1998.
14 Do you see that table or grid up at
15 the top?
16 A. Yes, I do.
17 Q. An do you see that Dr. Schomer has set
18 forth the Illinois Pollution Control Board's limit
19 for Class B to Class A land?
20 A. Yes.
21 Q. And he's broken it out into the eight
22 different octave bands, has he not?
23 A. I believe it's nine octave bands.
24 Q. Nine octave bands. Excuse me. Thank
L.A. REPORTING (312) 419-9292
331
1 you.
2 And based on not only the review that
3 you've been able to perform in the two minutes
4 during the break, but also on review of these
5 documents that you were able to perform down at
6 your office in Springfield, do you agree with Dr.
7 Schomer's analysis that if one used for comparison
8 purposes the Board's Class B to Class A limits
9 that the results -- noise measurement results
10 obtained by Tom Thunder and his associate, Roger
11 Harmon, would indicate exceedances of the Board's
12 limits at the 500, 1,000, 2,000, and 4,000 hertz
13 measurement areas?
14 A. Those would be octave bands.
15 Q. Octave bands. Thank you.
16 Would you agree that
17 Dr. Schomer has properly compared Thunder's
18 results with the, if appropriate, Class B to Class
19 A limit?
20 A. Yes. I would follow the same methodology
21 myself if I was doing that type of analysis, and I
22 agree with that.
23 Q. And you agree with Dr. Schomer's
24 conclusions set forth in his letter of January
L.A. REPORTING (312) 419-9292
332
1 26th, 1998?
2 A. Yes.
3 Q. Now, with respect to the way in which the
4 human ear perceives sound, when we see 2,000
5 hertz, that the noise generated by LTD's dock
6 facilities exceed the Pollution Control Board's
7 standards by almost or by nine decibels --
8 MR. KOLAR: Objection, just foundation as
9 to just one particular impulse, what particular
10 day.
11 MR. KAISER: This is the A-weighted
12 average -- no. This is the --
13 HEARING OFFICER KNITTLE: Maybe you could
14 lay a little bit more foundation. I'll sustain
15 that.
16 BY MR. KAISER:
17 Q. Well, you've seen the results set forth in
18 Thunder's letter of January 8th, 1998, and, in
19 particular, as expressed in figure three of Tom
20 Thunder's January 8th, 1998, right?
21 A. Yes.
22 Q. And, for instance, at the 31 hertz octave
23 band or 32 hertz octave band, we see that Tom
24 Thunder has reported an A-weighted sound level in
L.A. REPORTING (312) 419-9292
333
1 decibels based on the data obtained on September
2 24th, 1997, 60 DBs.
3 Do you see that?
4 A. I need to correct you a little bit there.
5 That's not A-weighted. That would be -- he has it
6 labeled as such, but if that were the case, the
7 readings would be completely erroneous. I think
8 what myself and Dr. Schomer would have done is
9 ignore that notation on the left-hand side of the
10 page about A-weighted sound level. That's
11 incorrect.
12 What he did is he didn't A-weight
13 it. He basically just broke the frequency down
14 into its components of nine octave bands without
15 A-weighting because if he had A-weighted it, for
16 example, the 32 would be 40 decibels lower than we
17 see it.
18 MR. KOLAR: Is this figure two?
19 MR. KAISER: Figure three.
20 THE WITNESS: Figure three.
21 BY MR. KAISER:
22 Q. Right, and I believe that would be the
23 testimony of Tom Thunder.
24 He did obtain an A-weighted result
L.A. REPORTING (312) 419-9292
334
1 that he reports over on the right-hand side of
2 the --
3 A. Yes. I noticed that.
4 Q. -- figure?
5 A. It's confusing the way he's got it put
6 together with the A-weighted designation and the
7 vertical area of the graph, and he kind of gives
8 the impression that everything is A-weighted, and
9 that's not the case.
10 Q. I'm glad you brought that out, and I think
11 Tom Thunder or Roger Harmon will make that same
12 point.
13 Let's look at the results he reports,
14 that Tom Thunder reports though, for the noise
15 measurements obtained, again, September 24th,
16 1997, in the 500 hertz octave band.
17 Do you see those?
18 A. Yes.
19 Q. And does he report LTD reported levels at,
20 in fact, 41 DB?
21 A. Yes. That's what he reported.
22 Q. And at the 1,000 octave band level, does
23 Tom Thunder report for the noise measurements
24 obtained on September 24th, 1997, at the 1,000
L.A. REPORTING (312) 419-9292
335
1 hertz octave band a result of 40 DB?
2 A. Yes.
3 Q. And at 2,000 hertz, does Tom Thunder
4 report a result of 39 DB?
5 A. Yes.
6 Q. And at 4,000 hertz, does Tom Thunder
7 report a result of 31 DB?
8 A. Yes.
9 Q. And all of those are for the measurements
10 Thunder and Harmon obtained on September 24th,
11 1997?
12 A. That's correct.
13 Q. All right. Now, by comparison with the --
14 returning now to Dr. Schomer's letter of January
15 26th, 1998, page two, we see that Dr. Schomer has
16 correctly taken the data from Tom Thunder's
17 January 8th, 1998, report and plugged in the LTD
18 reported level in decibels at the 500 hertz octave
19 band 41. At the 1,000 hertz octave band, LTD
20 reported levels of 40. At the 2,000 octave band,
21 LTD reported levels of 39 decibels. At the 4,000
22 octave band frequency, LTD reported levels 31
23 decibels.
24 He correctly took Thunder's data and
L.A. REPORTING (312) 419-9292
336
1 put it into this chart, did he not?
2 A. Yes. That's my impression.
3 Q. And did you confirm that Dr. Schomer has
4 correctly extracted from the regulations the
5 proper limits for the Illinois Pollution Control
6 Board that he set forth in the line above?
7 MR. KOLAR: Objection to this whole line
8 of questioning because it's improper under
9 Illinois law to have an opinion witness simply say
10 I agree with the opinion of another opinion
11 witness. He's supposed to give opinions based on
12 his own knowledge, experience, et cetera, and not
13 simply parrot the opinion of another person.
14 MR. KAISER: Well, that's not what he's
15 doing. I mean, I'm trying to cure a foundation
16 objection. I wanted Mr. Zak to tell me what it
17 means when we see that LTD is nine decibels above
18 the Illinois Pollution Control Board's standard at
19 2,000 hertz, and I wanted him to tell us what he
20 knows based on his experience, which is something
21 nobody else in this hearing is going to do, how
22 the human ear perceives a nine decibel
23 difference. Can it distinguish an exceedance of a
24 numeric standard where the exceedance is one of
L.A. REPORTING (312) 419-9292
337
1 nine decibels.
2 Now, we got a foundation objection
3 which suggested that somehow the numbers Greg Zak
4 was relying on were in error. They're not. I've
5 spent ten minutes showing that we took Tom
6 Thunder's data and that Dr. Schomer properly did a
7 clerical function, and now I'm about to be ready
8 to ask it Mr. Zak his own unique opinion about how
9 the human ear interprets a nine decibel
10 exceedance.
11 So this opinion of an opinion is, in
12 my view, an improper objection and not an
13 appropriate one given where we're going with
14 Mr. Zak's testimony.
15 HEARING OFFICER KNITTLE: Anything further,
16 Mr. Kolar?
17 MR. KOLAR: I'm talking about the
18 questions in your opinion is Mr. Schomer's chart
19 accurate and show a violation? Yes. In your
20 opinion, did Mr. Schomer's document show this and
21 show that? Yes. That's improper.
22 HEARING OFFICER KNITTLE: If you're
23 strictly trying to get to that question you want
24 to ask, I think we can move on to that question.
L.A. REPORTING (312) 419-9292
338
1 Do you object to that question, Mr. Kolar?
2 MR. KOLAR: I think that was disclosed.
3 HEARING OFFICER KNITTLE: Why don't you go
4 ahead and ask that question?
5 MR. KAISER: It was certainly part of Mr.
6 Zak's deposition testimony.
7 BY MR. KAISER:
8 Q. Based on your 27 years experience in the
9 noise program and based on your education, based
10 on your reading of the literature within the field
11 of acoustics and measurements and human
12 sensitivity to noise, do you have an opinion of
13 the manner in which the human ear registers a nine
14 decibel exceedance of a noise standard, and, in
15 particular, an exceedance of nine decibels within
16 the 2,000 hertz octave band?
17 A. Yes, I do.
18 Q. And what is that opinion?
19 A. My opinion is that at the 2,000 hertz
20 octave band, that happens to be the octave band
21 where the human ear is the most sensitive. So
22 we've got a frequency band that the ear is very
23 sensitive to, actually the most sensitive to, and
24 we've got a level that's nine decibels above the
L.A. REPORTING (312) 419-9292
339
1 Board regulation, and in terms of how loud that
2 is, it can be looked at two different ways.
3 One way to look at it is how the ear
4 actually responds to it, and to the average ear,
5 that nine decibels would sound approximately twice
6 as loud as the same level at the regulation
7 level. In other words, by having it nine decibels
8 over the 2,000 hertz limit, it sounds twice as
9 loud as it should, and other factors to consider
10 here is the fact that the ear is most sensitive to
11 the 2,000 hertz band. That does happen to be very
12 close to the frequency used for the back-up
13 beepers as kind of a side note on that.
14 Another thing that was noted in the
15 reports was some mention of cricket noise, and I
16 have measured a lot of cricket noise in 27 years,
17 and I do agree with Schomer when -- you know, I
18 did catch in the report that it seemed very
19 strange to me that Thunder was talking about
20 cricket noise as 1600 hertz and that that was the
21 reason the 2,000 hertz reading was as loud as it
22 was; whereas, normally cricket noise is found at
23 4,000 hertz.
24 I took that as being an error in the
L.A. REPORTING (312) 419-9292
340
1 Thunder report as far as what caused that 2,000
2 hertz level to be as high as it is.
3 Q. Now, again, based on your experience,
4 education, reading in the literature, do you have
5 an opinion as to the sensitivity of the human ear
6 to noise in the 1,000 octave -- 1,000 hertz octave
7 band area?
8 A. Yes. It's nearly --
9 MR. KOLAR: Objection, sensitivity to the
10 human ear, that sounds like a question more
11 properly for an audiologist or a doctor.
12 HEARING OFFICER KNITTLE: I'll allow the
13 question to stand. Objection overruled.
14 BY THE WITNESS:
15 A. Yes. Based, again, on my experience and
16 familiarity with the literature that's pertinent
17 to this, at 1,000 hertz, the ear is almost as
18 sensitive as it is at 2,000, not quite. It's
19 about two decibels down, and we've got a reading
20 here of five which would sound to the average
21 person as probably being, say, 50 percent more
22 than the regulatory limit.
23 BY MR. KAISER:
24 Q. And with respect to the way in which the
L.A. REPORTING (312) 419-9292
341
1 human ear responds to sound in the 4,000 hertz
2 octave band, do you have an opinion as to how the
3 human ear responds to sounds within that octave
4 band?
5 A. Yes. That's a fairly high frequency
6 octave band. Again, a typical noise source that
7 we would measure in that octave band would be
8 cricket and insect noise and also noise sources in
9 general. For example, a lot of the pneumatic
10 sounds from compressed air being released would be
11 in the 4,000 hertz band.
12 Q. Would an air brake, in your opinion, would
13 the sound --
14 A. Yes.
15 Q. -- generate --
16 A. The air brake would have a lot of energy
17 at 4,000 hertz, and we see a level here of five,
18 again, which would be perceived by the ear as
19 being well above what would be normally acceptable
20 under the regulation.
21 Q. And I do understand it correctly that the
22 way in which noise is measured, it's not a linear
23 measurement? That is, if LTD at the 4,000 hertz
24 is five decibels above the limit of 25 DB or six
L.A. REPORTING (312) 419-9292
342
1 above, it's at 31, that's not merely a 20 percent
2 increase in the noise energy, but that's closer
3 to -- the human ear perceives that as closer to a
4 50 percent increase; is that correct?
5 A. Could you read the question? I'm sorry.
6 Q. What I'm trying to get at is the way in
7 which we talk about sound, sound is not -- if
8 you're at 30 decibels and you go up to 40
9 decibels, that's not really an increase of merely
10 30 percent, ten decibels. It's perceived as more
11 of a doubling; is that correct?
12 A. It's perceived as a doubling, and when we
13 look at the energy involved, we're looking at ten
14 times as much energy. So we have a number of
15 things going on all at the same time. Just
16 looking at the ear response to it, it would sound
17 like it's twice as loud.
18 Q. But how is it -- what is the basis for
19 your statement that there's actually ten times as
20 much energy?
21 A. The basis for that is the fact that the
22 decibels are logarithmic. They're based on powers
23 of ten, and when we go from, I believe your
24 example was 30 to 40, if we were to put it in
L.A. REPORTING (312) 419-9292
343
1 terms of linear units, the 30 would be 1,000
2 units, and 40 would be 10,000 units. So we would
3 be actually increasing it by a thousand by a
4 factor of ten or up to 10,000 by going a distance
5 of decibels.
6 Q. And that's just the amount of energy that
7 that sound generates?
8 A. That's correct.
9 HEARING OFFICER KNITTLE: Let me -- I have
10 a question of clarification you've been referring
11 to the regulation and when a -- the regulations
12 when it's six decibels over. Are you talking
13 about Class B regulations or Class C regulations?
14 THE WITNESS: Mr. Hearing Officer, I'm
15 talking about Class B regulations.
16 HEARING OFFICER KNITTLE: I just wanted to
17 make sure. I was a little unclear.
18 THE WITNESS: And referring specifically
19 to the graph on the second page of the Schomer
20 comment, which would be Exhibit 20.
21 HEARING OFFICER KNITTLE: Thank you very
22 much.
23 BY MR. KAISER:
24 Q. And at that point, Dr. Schomer has set
L.A. REPORTING (312) 419-9292
344
1 forth the Board's nighttime noise limits for Class
2 B to Class A land uses?
3 A. That's correct.
4 Q. Now, given your familiarity with the LTD
5 dock operations and the proximity of LTD's dock
6 operations to Karen Roti's home, Paul
7 Rosenstrock's home, and Leslie and Henry Weber's
8 home, and given your familiarity now with the
9 results of noise measurements taken by Tom
10 Thunder's group on September 24th, 1997, do you
11 have an opinion as to whether reasonable people
12 living in the Roti's home, Mr. Rosenstrock's home,
13 or Ms. Weber's home would perceive noise at the
14 levels measured by Tom Thunder during nighttime
15 hours as annoying or a nuisance?
16 MR. KOLAR: Objection. I think that's a
17 conclusion for the Pollution Control Board, not a
18 proper area for opinion testimony, and, second,
19 it's more properly just addressed with the
20 complainants.
21 HEARING OFFICER KNITTLE: Mr. Kaiser.
22 MR. KAISER: Mr. Zak has analyzed noise
23 problems. He's analyzed the human response to
24 noise. He's talked with thousands of complainants
L.A. REPORTING (312) 419-9292
345
1 around the state of Illinois, and I think he's
2 capable of rendering an opinion as to whether a
3 reasonable person would be disturbed by levels
4 such as those recorded by Tom Thunder. Part of
5 the issue is whether what Karen Roti and Paul
6 Rosenstrock and Leslie Weber are complaining about
7 is whether it's reasonable for them to complain.
8 They're going to tell you what it's done to them,
9 but there's this question of whether it's a
10 reasonable complaint under the circumstances, and
11 I believe Mr. Zak is capable of offering an
12 opinion on that.
13 Mr. Kolar is equally capable of
14 investigating vesting opinion and the Board is
15 capable of determining what weight to give to it,
16 but I believe he's qualified to give this opinion,
17 and I would like him to have the opportunity to
18 give such an opinion.
19 HEARING OFFICER KNITTLE: I'll overrule
20 the objection. You can answer the question.
21 BY THE WITNESS:
22 A. My opinion is that given the circumstances
23 of the homes being where they're located, the fact
24 that these people are being disturbed late at
L.A. REPORTING (312) 419-9292
346
1 night, looking at the measurements that were
2 obtained by Thunder and reanalyzed by Schomer, and
3 also given the fact that I'm familiar with the
4 type of noise having heard it myself not only at
5 this location, but at hundreds of other locations,
6 that people -- very reasonable people would likely
7 complain about this type of noise.
8 It's been my experience that -- I've
9 had hundreds of complaints, possibly even going to
10 thousands of complaints, that relate to this type
11 of noise.
12 BY MR. KAISER:
13 Q. And this type of noise, you mean noise
14 generated by truck dock activities?
15 A. Just the type of noise we're describing
16 here, the back-up beepers, the pneumatic brakes,
17 clang and banging, those types of noises would --
18 and engines being revved up also are typical of
19 noises that reasonable people complain about.
20 Q. Now, with respect to the noise generated
21 by LTD's dock activities, have you given any
22 consideration as to whether construction of a
23 noise wall, and, in particular, a noise wall of an
24 approximate height of 14 feet above grade, running
L.A. REPORTING (312) 419-9292
347
1 essentially from the western end of LTD's dock
2 area up along the berm behind the truck staging
3 area and down around to where this Y fork in the
4 road with the left fork leading into the dock area
5 and the right fork leading to LTD's north parking
6 lot, do you have an opinion as to whether a
7 properly designed and properly constructed noise
8 wall would be effective in reducing transmission
9 and migration of noise from LTD's dock area to the
10 Roti residence, the Rosenstrock residence, and the
11 Weber residence?
12 A. Yes, I do.
13 Q. And what is that opinion?
14 A. It would be effective, in my opinion, of
15 cutting the noise probably at least in half from
16 where it is now which would bring it very close to
17 being in compliance with the Board's regulations
18 based on the Thunder measurements.
19 Q. And do you have an opinion as to whether
20 construction of a noise wall at that location is
21 technically feasible?
22 A. Yes. Based on experience with many, many
23 noise walls and noise barriers, that's part and
24 parcel of the noise control engineering aspect of
L.A. REPORTING (312) 419-9292
348
1 my job. I don't see any difficulty in feasibility
2 there. Typically, what's done is a contractor
3 would be responsible for the pylons or the
4 foundation for the structure. So I don't see any
5 limitations when I was there on the site that
6 would prevent construction of such a structure.
7 Q. And would you view in light of the size of
8 LTD's operations, not only gross size, but that
9 size suggested about their revenues, do you have
10 an opinion as to whether a noise wall costing
11 approximately $300,000 would be an economically
12 reasonable solution to the problem posed by Mr.
13 Rosenstrock, Mr. and Mrs. Roti, and Ms. Weber?
14 A. Again, given the size of the facility, the
15 area it's located had in, $300,000 would not seem
16 to me to be an excessive cost. There are other
17 alternatives at the same time when we get into
18 costs, and that would be to go with, say, a wood
19 wall as opposed to a steel wall, which I believe
20 you're referring to in the $300,000 cost.
21 If they were to go with a wood wall,
22 it would be considerably cheaper than $300,000.
23 It would have to be, again, 14 feet high and
24 absolutely air tight, but noise-wise as long as it
L.A. REPORTING (312) 419-9292
349
1 was acoustically soft on the side facing the LTD
2 building, it would work as well as the $300,000
3 steel wall.
4 Q. And what do you mean when you use the term
5 acoustically soft?
6 A. I'm talking about having an acoustically
7 absorbing material on the wall facing the LTD
8 facility such as different grades of fiberglass.
9 It comes in a fiberglass board that's relatively
10 stiff and relatively waterproof that could be
11 applied. There's other materials that come with a
12 vinyl seal around them that could be also used on
13 a wooden wall.
14 The drawbacks of a wooden structure
15 with insulation on it -- I should clarify
16 insulation by saying acoustic absorptive
17 insulation or any acoustic absorptive material.
18 The drawback, again, is maintenance. The less
19 expensive structures lend themselves to periodic
20 maintenance; whereas, the more expensive
21 metal-type wall is normally just a one-time
22 affair. It's put up and maintenance-free and will
23 last for normally well over 20 years.
24 MR. KAISER: Thank you, Mr. Zak. I have
L.A. REPORTING (312) 419-9292
350
1 no further questions for you at this time. Mr.
2 Kolar may.
3 HEARING OFFICER KNITTLE: Mr. Kolar.
4 MR. KOLAR: I've got easily an hour's
5 worth of cross-examination, and I notice that --
6 MR. KAISER: Our good friend Mr. Harmon is
7 back.
8 MR. KOLAR: -- Mr. Harmon is here, and I
9 don't want to go out of order, but Mr. Kaiser is
10 the one who wanted Mr. Harmon here, and for the
11 record, Steve -- for the record, Steve asked if we
12 would voluntarily produce Mr. Harmon as opposed to
13 him issuing a subpoena. I said we would if he --
14 if his clients agreed to pay his hourly rate door
15 to door, and his clients agreed to that, but,
16 again, I want to do my cross-examination of Mr.
17 Zak, and I would guess that if we take a lunch
18 break, we won't get to Mr. Harmon until 3:00
19 o'clock with a one-hour lunch break.
20 HEARING OFFICER KNITTLE: Let's go off the
21 record for a second.
22 MR. KAISER: Well, if I just may respond
23 to something that's on the record.
24 HEARING OFFICER KNITTLE: Let's stay on
L.A. REPORTING (312) 419-9292
351
1 the record.
2 MR. KAISER: Thank you.
3 In fact, I did issue a subpoena and
4 put it in the hands of a process server, and they
5 made numerous efforts to serve Mr. Harmon at his
6 place of employment and to work with his employer
7 to get him to cooperate in accepting service, and
8 Mr. Harmon made it pretty clear that he wasn't
9 going to make himself available for service of
10 process.
11 So as a backup, we agreed to pay his
12 wage for coming down here and offering testimony
13 at this hearing, but it wasn't by lack of effort
14 through process that we had to reach this
15 accommodation.
16 MR. KOLAR: I don't think it's accurate
17 that he was avoiding service. I agree he didn't
18 get him, and then he asked me if we would produce
19 him voluntarily.
20 HEARING OFFICER KNITTLE: Right. Well,
21 we're in the current situation we are. I don't
22 care how it got there unless it's subject to some
23 sort of discovery motion for sanctions or
24 something like that. So let's go off the record
L.A. REPORTING (312) 419-9292
352
1 right now and figure out what we're going to do.
2 (Discussion had
3 off the record.)
4 (Break taken.)
5 HEARING OFFICER KNITTLE: We're back on
6 the record. Let me remind Mr. Zak, although the
7 savvy veteran that you are of these proceedings,
8 you're probably aware that you're still under
9 oath, correct?
10 THE WITNESS: Yes, I am.
11 HEARING OFFICER KNITTLE: You can proceed,
12 Mr. Kolar.
13 C R O S S - E X A M I N A T I O N
14 by Mr. Kolar
15 Q. How are you doing, Mr. Zak?
16 A. Just fine.
17 Q. Okay. You have no experience in land
18 planning, correct?
19 A. Other than involvement with the Board
20 regulations in the early '70s, no.
21 Q. You've never held yourself out as a land
22 planner, right?
23 A. That's right.
24 Q. You've never worked for private clients
L.A. REPORTING (312) 419-9292
353
1 doing land planning, correct?
2 A. That's correct.
3 Q. And you're not a member of any land
4 planning groups or organizations, correct?
5 A. That's correct.
6 Q. And you understand based on reading Mr.
7 Kracower's deposition testimony that there are
8 people who, for a living, do land planning?
9 A. Yes.
10 Q. You're not a member of the Acoustical
11 Society of America, correct?
12 A. That's correct.
13 Q. And you're not board certified by INCE?
14 A. That's correct.
15 Q. You have some sort of recognition by that
16 group, right?
17 A. Well, I am a member, and I have the
18 membership standing through written examination.
19 Q. But the board certification requires a
20 longer examination beyond what you did?
21 A. That's correct.
22 Q. And do you recall that you gave your
23 deposition on July 9th, 1999?
24 A. Yes, I recall it was about that time.
L.A. REPORTING (312) 419-9292
354
1 Q. And was it early June when you were out at
2 LTD with Mr. Kaiser and myself?
3 A. It might have been. I had the impression
4 that the day we went to the facility was not the
5 date of the deposition. I have the impression
6 that I worked on another case involving a dog
7 kennel run by Lucy Huck and that after inspecting
8 the Huck operation that I went from there to a
9 deposition.
10 Q. Again, just to refresh your recollection,
11 let me show you page 41 of your deposition
12 transcript, lines nine through 13, do you see I
13 ask this question, calling your attention, again,
14 to that June 2 or 3 site inspection, is that the
15 only time you have ever been on the complainants'
16 properties; answer, yes?
17 A. Yes.
18 Q. So you -- does that sound right that it
19 was in early June when you toured the LTD
20 warehouse with me and Mr. Kaiser and went on the
21 complainants' property?
22 A. Yes.
23 Q. And then you came back for your deposition
24 in July, and on that date did you go to the
L.A. REPORTING (312) 419-9292
355
1 property as well?
2 A. It seems to me that we did very briefly.
3 At least I believe that Mr. Kaiser and I drove
4 around the facility there at LTD.
5 Q. And I wasn't present on the time before
6 your deposition. Is that your recollection?
7 A. Again, you're talking about the same day
8 as the deposition?
9 Q. Right.
10 A. That's correct.
11 Q. And as of your deposition on July 9th,
12 1999, you had not read any deposition transcripts
13 of the complainants, true?
14 A. That's true.
15 Q. Have you read any deposition transcripts
16 of the complainants as of today?
17 A. No.
18 Q. Is the only deposition transcript you read
19 prior to today that of Allen Kracower?
20 A. Yes, and I basically skimmed that.
21 Q. Did Mr. Kaiser point out areas that you
22 should read?
23 A. Not really. The only exception would have
24 been on the first page there was an area that was
L.A. REPORTING (312) 419-9292
356
1 highlighted. I think it was not so much the page
2 of the deposition, but with the letter that he
3 sent me with the deposition wherein Mr. Kracower
4 gives an opinion on the warehousing as contained
5 in the SLUCM code.
6 Q. Well, in the dep transcript, did Mr.
7 Kaiser take a highlighter and highlight what he
8 wanted you to look at?
9 A. No.
10 Q. And he had a letter?
11 A. Yes, a cover letter.
12 Q. Do you have that with you?
13 A. Yes, I do.
14 Q. Is it just an enclosure letter saying
15 here's the transcript?
16 A. Yes.
17 Q. It didn't say anything like please look at
18 this section?
19 A. No. It's just a letter typed basically
20 saying here's the transcript and some other
21 information besides that, and so I just took it
22 upon myself to kind of skim through it.
23 Q. Do you have it with you? Can you put your
24 hands on it quickly?
L.A. REPORTING (312) 419-9292
357
1 A. Yes.
2 MR. KAISER: For the record, I'm handing
3 Mr. Zak his file on this case.
4 BY THE WITNESS:
5 A. Let me find it for you.
6 BY MR. KOLAR:
7 Q. Okay. Thanks. So what's been clipped
8 together is an October 27th, 1999, letter from Mr.
9 Kaiser to you, correct?
10 A. Yes.
11 Q. And the letter says, I am enclosing
12 documents pertaining to the above-referenced
13 case. If you have any questions, please do not
14 hesitate to call, correct?
15 A. Correct.
16 Q. Did he send you the Appendix B, the SLUCM
17 code?
18 A. Yes, one page from there wherein he
19 highlighted the paragraph.
20 Q. And did he highlight footnote two for code
21 637?
22 A. Yes.
23 Q. And it says warehousing and storage
24 services include only those facilities that are
L.A. REPORTING (312) 419-9292
358
1 used by or are open to the public, correct?
2 A. That's correct.
3 Q. You understand that LTD's warehouse is not
4 used by or open to the public, correct?
5 A. That would be my impression from when I
6 was there, yes.
7 Q. But when you gave your deposition in this
8 case, you cited the warehouse code provision as
9 your opinion as to the proper classification of
10 LTD, right?
11 A. That's correct.
12 Q. I guess, in particular, at your deposition
13 you said LTD should be classified under codes 6376
14 or 6379, right?
15 A. I believe so.
16 Q. I'm showing you the land classification
17 system, code 637 is the three digit code for the
18 four digit code you cited at your dep, right?
19 A. Yes.
20 Q. And code 637, the category is warehousing
21 and storage services, right?
22 A. Yes.
23 Q. And it has that footnote two?
24 A. Yes.
L.A. REPORTING (312) 419-9292
359
1 Q. And that's the footnote that
2 Mr. Kaiser highlighted and sent to you on October
3 27th, 1999?
4 A. Yes.
5 Q. He was pointing out to you that the code
6 you -- the code provisions you cited at your
7 deposition transcript were inaccurate and should
8 not apply to LTD?
9 MR. KAISER: Objection, argumentative.
10 BY MR. KOLAR:
11 Q. True?
12 HEARING OFFICER KNITTLE: I'll sustain
13 that. I don't think it's argumentative. I don't
14 know how he would know what Mr. Kaiser was
15 intending to point out.
16 MR. KOLAR: That's true.
17 BY MR. KOLAR:
18 Q. After your deposition, you learned that
19 codes 6376 and 6379 that you cited at your
20 deposition transcript couldn't possibly apply to
21 LTD because LTD is not a public warehouse, right?
22 MR. KAISER: Objection, misstates the
23 manner in which the Board uses the SLUCM code.
24 HEARING OFFICER KNITTLE: Overruled.
L.A. REPORTING (312) 419-9292
360
1 BY MR. KOLAR:
2 Q. Is that true, Mr. Zak?
3 A. Well, I wouldn't necessarily say that.
4 What I've historically done over the last 27 years
5 is choose the SLUCM code that appears to be the
6 closest to a given situation, and I wouldn't
7 necessarily say that the footnote there would
8 change the land classification.
9 The main thing I'm doing with the
10 SLUCM code is I'm determining what the land
11 classification is, and I didn't see where footnote
12 two really changed the land classification to
13 other than Class B.
14 Q. The footnote, you would agree, footnote
15 two, is part of the Pollution Control Board's
16 regulations, right?
17 A. I would say it's part of the SLUCM code.
18 Q. Let me show you. Title 35, Environmental
19 Protection, Subtitle H, Noise, Chapter One,
20 Pollution Control Board, you've seen this before,
21 right?
22 A. Yes, many, many times.
23 Q. Part 900, general provisions, right?
24 A. Uh-huh.
L.A. REPORTING (312) 419-9292
361
1 Q. And then we get -- yes?
2 A. Yes.
3 Q. And then we get to Part 901, which has the
4 numerical provisions, right?
5 A. Yes.
6 Q. And attached to the Pollution Control
7 Board regulations is the classification document,
8 the SLUCM code, right?
9 A. Yes.
10 Q. You can see right here it's called
11 Appendix B, right?
12 A. Yes.
13 Q. And if we go to category 637, again,
14 warehousing and storage services, it's got
15 footnote two, right?
16 A. Yes.
17 Q. And then if we go on and find footnote
18 two, we can see it's code 637 warehousing and
19 storage services, and it's the same footnote that
20 Mr. Kaiser highlighted and sent to you on October
21 27th, right?
22 A. That's correct.
23 Q. So based on footnote two at least, you
24 would agree that the codes you assigned LTD at
L.A. REPORTING (312) 419-9292
362
1 your deposition would not be a correct
2 classification of the LTD operation?
3 A. Based on that alone, I would agree.
4 Q. At your dep, you weren't aware of footnote
5 two to code 637; is that correct?
6 A. That's correct.
7 Q. Mr. Kaiser advised you of that footnote
8 when he sent you that document on October 27th?
9 A. Yes.
10 Q. Are you now withdrawing your opinion that
11 LTD falls under 637 warehousing?
12 A. I wouldn't say I was withdrawing it. I
13 would like the opportunity to go back and go
14 through the code, the various codes, and determine
15 if that or there's another category that might be
16 closer to -- a closer description of what is
17 actually occurring at LTD.
18 Q. You made reference to my letter to the
19 village of Bannockburn where I said that LTD was a
20 freight forwarding operation?
21 A. Yes.
22 Q. Mr. Kaiser somehow advised you of that
23 letter, right?
24 A. I received a copy of that letter.
L.A. REPORTING (312) 419-9292
363
1 Q. Okay. Well, did Mr. Kaiser give you a
2 copy of LTD Commodities answers to complainants'
3 fourth set of interrogatories which were mailed to
4 him on March 25th, 1999?
5 A. Can I see the document?
6 Q. Sure.
7 A. In answer to your question, I may have
8 seen this, but it doesn't look especially
9 familiar.
10 Q. Most of mine are premarked, but this one I
11 didn't think I would need. Let's mark this
12 Respondent's Exhibit 32. I think I've got an
13 opening in that document I gave you.
14 (Respondent's Exhibit No. 32
15 marked for identification,
16 11-2-99.)
17 BY MR. KOLAR:
18 Q. So Respondent's Exhibit 32 you can see on
19 page four LTD is stating what it believes would be
20 the applicable categories for its property, right?
21 A. Yes.
22 Q. I'm not saying you agree with them, but
23 automobile parking Class C, right? That's what it
24 says?
L.A. REPORTING (312) 419-9292
364
1 A. That's what it says.
2 Q. Other motor freight transportation, Class
3 C, right?
4 A. Yeah. That's what it says.
5 Q. Freight forwarding services, Class C?
6 A. Yes.
7 Q. Packing services, Class C, correct?
8 A. Yes.
9 Q. And when you were in the LTD warehouse on
10 that tour by Mr. Voight, you saw, I think I heard
11 you, thousands of packages on shelves and being
12 picked off shelves and put on trucks, right?
13 A. That's correct.
14 Q. But none of those packages were opened,
15 right?
16 A. No, they weren't.
17 Q. You couldn't see these knickknacks that
18 you referred to when you were in the warehouse,
19 you just saw boxes?
20 A. I believe that some of them were labeled,
21 and I did notice that a lot of them were made in
22 China.
23 Q. I know, but the boxes were not opened so
24 that you could see what you called these
L.A. REPORTING (312) 419-9292
365
1 knickknacks, right?
2 A. That's correct.
3 Q. And you saw LTD employees taking packages
4 off trucks, putting packages on trucks, right?
5 A. Yes.
6 Q. And the whole warehouse -- 350,000 feet
7 was assigned to storing all these packages until
8 they were put on the trucks, right?
9 A. I would say that was part of the
10 operation.
11 Q. So the predominant activity in that LTD
12 warehouse would be the storage of the packages and
13 removing packages off the shelves and putting them
14 on the trucks and taking them off the trucks and
15 putting them on the shelves, right?
16 A. Yes. I would agree to that.
17 Q. As of your deposition transcript, you had
18 never looked at LTD's product catalogues, correct?
19 A. That's correct.
20 Q. And as of your deposition -- Strike that.
21 Let me restate that question.
22 As of your deposition on July 9th,
23 1999, you had never looked at any of LTD's
24 catalogues?
L.A. REPORTING (312) 419-9292
366
1 A. That's correct.
2 Q. And as of your deposition on July 9th, you
3 had never looked at LTD's web site?
4 A. That's correct.
5 Q. And you yourself have performed no
6 measurements whatsoever regarding the level of
7 noise coming from LTD's trucking operations,
8 right?
9 A. That's correct.
10 Q. And you understand as a person with 27
11 years' experience at the IEPA that the
12 complainants, if they chose to, could hire their
13 own noise consultant to make actual measurements
14 of the LTD trucking operations?
15 MR. KAISER: Objection, calls for
16 speculation.
17 HEARING OFFICER KNITTLE: Something, Mr.
18 Kolar? Anything else?
19 MR. KOLAR: No.
20 HEARING OFFICER KNITTLE: I'll overrule
21 that.
22 BY MR. KOLAR:
23 Q. Can you answer that?
24 A. Yes. I would assume they could.
L.A. REPORTING (312) 419-9292
367
1 Q. You have no tape recordings of
2 measurements of noise at LTD, correct?
3 A. That's correct.
4 Q. And LTD was cooperative in allowing you to
5 tour the facility, right?
6 A. Yes, I would say so.
7 Q. And you went through the original building
8 and then you went into the 1994 addition on the
9 south end, right?
10 A. That's correct.
11 Q. You saw a close-up view of the dock
12 levelers and the trucking bays?
13 A. Yes.
14 Q. You saw the truck staging area?
15 A. Yes.
16 Q. And you -- was it your opinion on that
17 date that the wooden stops in the truck staging
18 area were well designed?
19 A. I believe so, yes.
20 Q. And then LTD took you into the office area
21 and the cafeteria area?
22 A. Yes.
23 Q. And you basically walked wherever Mr.
24 Kaiser wanted to go?
L.A. REPORTING (312) 419-9292
368
1 MR. KAISER: Objection.
2 HEARING OFFICER KNITTLE: How so?
3 MR. KAISER: Misstates the experience.
4 HEARING OFFICER KNITTLE: I'll sustain the
5 objection.
6 BY MR. KOLAR:
7 Q. You walked through the office and out the
8 door on the west side of the LTD facility, right?
9 A. Yes.
10 Q. And it's your opinion that LTD is suitably
11 located at its present location, correct?
12 A. With some noise controls, yes.
13 Q. Well, at your deposition, do you recall
14 admitting that LTD was suitably located without
15 any sort of qualification about noise controls?
16 MR. KAISER: Objection, improper
17 impeachment. He has the dep transcript. If
18 there's a question and answer in the context of
19 which it was asked, I think it should be done in
20 that manner.
21 HEARING OFFICER KNITTLE: Why don't you go
22 ahead and do it that way, Mr. Kolar? As long as
23 we have the objection, I'll sustain it.
24
L.A. REPORTING (312) 419-9292
369
1 BY MR. KOLAR:
2 Q. Page 28 of your deposition transcript,
3 line three, starting question, so you would agree
4 that this site is a suitable location for LTD;
5 answer, that determination is really reserved to
6 the Pollution Control Board, not to me; question,
7 well let me back up because you just said, quote,
8 I would say LTD is suitably located, close quote;
9 answer, that's a personal opinion; question,
10 that's your testimony, right; answer, yes.
11 Did I read that correctly?
12 A. Yes.
13 Q. At your deposition, you didn't have the
14 qualification that LTD is suitably located with
15 appropriate noise control, true?
16 A. That's true.
17 Q. And the bumper stops that you say are
18 suitably located, those would be --
19 MR. KAISER: Objection, misstates his
20 testimony.
21 HEARING OFFICER KNITTLE: I'll sustain
22 that.
23 MR. KAISER: True. Thank you.
24
L.A. REPORTING (312) 419-9292
370
1 BY MR. KOLAR:
2 Q. The bumper stops that are well designed
3 would be the bumper stop or whatever we call it
4 shown in Respondent's Exhibit 76, true?
5 A. I really can't tell that well given the
6 picture.
7 Q. Let me show you Respondent's Exhibit 75.
8 Would you agree that that's a photo of the truck
9 staging area you saw?
10 A. Yes.
11 Q. And that's where you looked down and saw
12 the wooden bumper stops for the trailers being
13 backed into the staging area?
14 A. Yes.
15 Q. And those are the wooden bumper stops that
16 you said were well designed?
17 A. Yes, although I would qualify that by
18 saying that the photographs here don't really show
19 the stop that well that I had said appear to be
20 well designed.
21 Q. We'll ask Mr. Voight what photo 76 shows,
22 but 75 does show the staging area?
23 A. Okay.
24 Q. Right?
L.A. REPORTING (312) 419-9292
371
1 A. Yes.
2 Q. So on the issue of noise from LTD
3 unreasonably interfering with the complainants,
4 you would expect LTD's noise to interfere with
5 anybody living in the Roti home, the Rosenstrock
6 home, or the Weber home, right?
7 A. I would kind of qualify that by saying a
8 reasonable person, and what I mean by that is I
9 wouldn't expect every person in all three
10 residences to be equally disturbed by the noise.
11 Q. As you sit here today, you don't know if
12 anybody in all three residences is equally
13 disturbed by the noise, right?
14 A. That's correct.
15 Q. You don't know if the Weber's son is
16 disturbed by the noise, true?
17 A. True.
18 Q. You don't know if he's a reasonable or
19 unreasonable person, true?
20 A. True.
21 Q. Have you been told by any of the
22 complainants that the Weber's -- one of their sons
23 is not bothered at all by the noise from the LTD
24 operations?
L.A. REPORTING (312) 419-9292
372
1 A. I may have been at one time, but I don't
2 remember it now.
3 Q. Now, I think at one point -- Strike that.
4 You, as an employee of the state,
5 really view yourself as an independent person in
6 these noise disputes, right?
7 A. I try to maintain as independent of an
8 attitude as I can.
9 Q. Do you remember after your deposition did
10 you get a letter from me dated July 12th, 1999,
11 asking you for, among other things, your
12 curriculum vitae and some Pollution Control Board
13 cases?
14 A. Yes.
15 Q. Did you ever send those to me?
16 A. I don't --
17 MR. KAISER: Objection, relevance.
18 BY THE WITNESS:
19 A. I don't believe I did that, no.
20 HEARING OFFICER KNITTLE: You can respond
21 before I rule if you want, Mr. Kolar.
22 MR. KOLAR: No response.
23 HEARING OFFICER KNITTLE: Overruled.
24 MR. KOLAR: Let me mark this letter as
L.A. REPORTING (312) 419-9292
373
1 Respondent's Exhibit 33.
2 (Respondent's Exhibit No. 33
3 marked for identification,
4 11-2-99.)
5 BY MR. KOLAR:
6 Q. Do you recall getting Respondent's Exhibit
7 33 on or about July 13 -- 14, 1999?
8 A. Yes, I do.
9 Q. Okay. And did you send me any of the
10 things listed in Exhibit 33?
11 A. It was an oversight on my part. It was
12 not a deliberate thing not sending the information
13 out.
14 Q. And I believe you in that regard, but from
15 some oversight, I never got these documents from
16 you, right?
17 A. That's true.
18 Q. Now, on the classification issue in coming
19 to the conclusion that LTD is a Class B use, did
20 you read any of Paul Schomer's letters from 1997?
21 A. I believe I did look over some of his
22 letters, but as far as my classification of that
23 area, whatever his opinion was wouldn't really --
24 whether he -- however he considered it to be, I
L.A. REPORTING (312) 419-9292
374
1 was still making a completely independent
2 assessment of what was there and then based on
3 that designated it as either a Class C or B land
4 use.
5 Q. Let me show you Respondent's Exhibit 40,
6 an April 20th, 1997, letter from Mr. Schomer to
7 David Lothspeich at the village of Bannockburn,
8 and I've highlighted the second paragraph, first
9 page. Do you see where Mr. Schomer states that
10 the applicable limits are for sound transmitted
11 from Class C, parentheses, industrial land uses to
12 Class A, parentheses, residential land uses?
13 A. Yes. I thought that was an incorrect
14 statement when I read it.
15 Q. So you had read that before you came to
16 your conclusion as to LTD is a Class B?
17 A. I believe from the description of the
18 residence --
19 MR. KOLAR: Move to strike as
20 nonresponsive.
21 BY MR. KOLAR:
22 Q. Had you read that before you came to your
23 conclusion that LTD is a Class B?
24 HEARING OFFICER KNITTLE: By the way, I'll
L.A. REPORTING (312) 419-9292
375
1 sustain the motion to strike.
2 BY THE WITNESS:
3 A. I don't remember.
4 BY MR. KOLAR:
5 Q. Respondent's Exhibit 41, a July 10th,
6 1997, letter from Mr. Schomer to Jack Voight, and
7 I think he's got the same letter dated July 11th,
8 which is Exhibit 42.
9 Do you see on the second page it says
10 the corrected truck yard octave band, et cetera,
11 and then he cites sound emitted by Class C land
12 uses to Class A land uses?
13 A. Yes, I see that, but, again, I disagree
14 with the statement.
15 Q. Did you read this July 10th, 1997, letter
16 or its July 11th counterpart before giving your
17 opinion or forming the opinion that LTD was a
18 Class B use?
19 A. To answer honestly, I don't remember
20 exactly when I came to the conclusion it was Class
21 B, whether it was before I seen the Schomer letter
22 or after I seen the Schomer letter, but in any
23 case, the Schomer opinion would not have swayed me
24 one way or the other.
L.A. REPORTING (312) 419-9292
376
1 Q. You've been with the Illinois
2 Environmental Protection Agency since 1972?
3 A. Correct.
4 Q. What did you did before that?
5 A. I was in college getting my bachelor of
6 science degree in biology, and then prior to that,
7 I was in electronics in the Marine Corps.
8 Q. Did you have any role with the Illinois
9 Environmental Protection Agency while you were in
10 college?
11 A. No. Well, if I could clarify that, not
12 when I was getting my bachelor of science degree,
13 but when I got my master's degree in public
14 administration, I was an employee of the EPA at
15 that time.
16 Q. When did get your bachelor's degree?
17 A. 1971.
18 Q. When did you start working for the IEPA?
19 A. 1972.
20 Q. What month?
21 A. May.
22 Q. So before May of 1972, had you had any
23 experience at all with working with the IEPA?
24 A. No.
L.A. REPORTING (312) 419-9292
377
1 Q. Let me show you what Mr. Kaiser marked the
2 other day as Schomer Deposition Exhibit 2. This
3 was during his evidence deposition.
4 Have you ever seen that document
5 before, which I guess for the record is control of
6 noise from stationary sources report of the task
7 force on noise, state of Illinois Institute for
8 Environmental Quality, and on the second page, it
9 says January 1972, and then the back of that page
10 says March 15th, 1972.
11 Have you ever seen that document
12 before?
13 A. I probably have, but when I had seen the
14 document, it was probably 25 to 27 years ago.
15 Q. Based on what you've told us so far, it
16 would appear you had no role whatsoever in the
17 preparation of this document. Is that accurate?
18 A. Yes. That's true.
19 Q. I thought I heard on direct that you said
20 you had some role in assigning the classifications
21 to Appendix B?
22 A. Yes. From memory having worked on the
23 noise regulations that were adopted in '73, I had
24 reviewed a lot of the drafts that were before the
L.A. REPORTING (312) 419-9292
378
1 Board regarding regulatory limits and the
2 appendices and had prepared some noise measurement
3 reports supporting some of the findings in there
4 and through that had an input in the final
5 regulation adopted in 1973.
6 Q. Well, did you have any role in actually
7 sitting down with a ruler and drawing lines on the
8 right side of the Appendix B to assign a C or a B
9 classification to land uses?
10 A. No.
11 Q. Okay. Do you know if Mr. Schomer had any
12 role in that?
13 A. I believe from conversations I've had with
14 him that he did.
15 Q. Now, you yourself, you have a copy of the
16 Standard Land Use Coding Manual, right?
17 A. No, I don't.
18 Q. Didn't you at your deposition have a copy
19 of the Standard Land Use Coding Manual?
20 A. Quite honestly, at this time, I don't
21 remember if I did or not.
22 Q. Have you ever seen the Standard Land Use
23 Coding Manual before?
24 A. Yes.
L.A. REPORTING (312) 419-9292
379
1 Q. Have you seen it before your deposition?
2 A. Yes.
3 Q. So you understand that the Standard Land
4 Use Coding Manual goes along with Appendix B which
5 lists land uses?
6 MR. KAISER: Objection. It may misstate
7 the evidence, lacks foundation.
8 HEARING OFFICER KNITTLE: Could you
9 rephrase it, Mr. Kolar?
10 MR. KOLAR: I'll mark mine as 34. I'll
11 have to make another copy.
12 (Respondent's Exhibit No. 34
13 marked for identification,
14 11-2-99.)
15 BY MR. KOLAR:
16 Q. You had looked through the Standard Land
17 Use Coding Manual prior to today, right?
18 A. Yes.
19 Q. And you recall that it had Appendix B
20 attached to it, which is the land use designation
21 document?
22 A. No.
23 Q. Did you consult the Standard Land Use
24 Coding Manual at all before forming your opinion
L.A. REPORTING (312) 419-9292
380
1 that LTD was a Class B use?
2 A. I would have referred to -- well, I didn't
3 form the opinion that it was a Class C use. It
4 was a Class B use it's my opinion, I got that from
5 Appendix B of the Board regulation.
6 Q. Right. But did you consult the Standard
7 Land Use Coding Manual before you formed your
8 opinion that LTD was a Class B use?
9 A. Are you referring to the portion of
10 Appendix B, or are you referring to the actual
11 document itself, and, like I said, I had seen the
12 document previously. I've even gotten a copy
13 through our library at EPA there reproduction some
14 years ago, but at this present time, I don't know
15 where my copy is.
16 Q. Well, did you consult the manual, not the
17 appendix, but the manual before you came --
18 A. No, I did not.
19 Q. Let me show you page 63 of your
20 deposition, line 19; question, do you also have
21 the Standard Land Use Coding Manual; answer, yes;
22 do you know the date on the manual that you have;
23 I believe it was first published in 1969. That's
24 the only date I can remember. I haven't looked at
L.A. REPORTING (312) 419-9292
381
1 my particular copy of that in several years.
2 Do I read those correctly?
3 A. That's correct.
4 Q. So as of your deposition, you did have a
5 Standard Land Use Coding manual, right?
6 A. Not with me at the deposition.
7 Q. You had one in your possession or control,
8 right?
9 A. Yes.
10 Q. And as of your deposition, you understood
11 that there was a relationship between the Standard
12 Land Use Coding Manual and Appendix B which was
13 ultimately attached to the Pollution Control Board
14 regulations?
15 A. Yes.
16 Q. Let me show you Complainants' Exhibit 2.
17 Do you see on the back I guess somebody tore off
18 the mailing label. Do you know who did that?
19 A. I have no idea.
20 Q. Okay. What does it say here on the order
21 form as to the business shipping address, computer
22 department, Quill Corp.?
23 A. Yes.
24 Q. Did I read that correctly?
L.A. REPORTING (312) 419-9292
382
1 A. Yes.
2 Q. Do you know what Ms. Leslie Weber does?
3 A. No.
4 Q. Let's look at this catalogue a little bit
5 here, in particular, the order form documents in
6 the middle of the document. Do you see here on
7 step two on the first page it says if the business
8 mailing address is incorrect or missing, please
9 print the correct information above. Please do
10 not change to private residence.
11 Do you see that?
12 A. Yes.
13 Q. Had you read that before forming your
14 opinion that LTD is not a business-to-business
15 operation?
16 A. Yes.
17 Q. On the second page of this order form, the
18 reverse side, do you see up in the top it gives a
19 box where you're suppose to put name -- business
20 name and business address, right?
21 A. Yes.
22 Q. Did you look at this before forming your
23 opinion regarding business-to-business?
24 A. Yes.
L.A. REPORTING (312) 419-9292
383
1 Q. And you see it says account number?
2 A. Yes.
3 Q. What would your account number be if you
4 were going to have something shipped to your home?
5 MR. KAISER: Objection, irrelevant.
6 HEARING OFFICER KNITTLE: Overruled.
7 BY MR. KOLAR:
8 Q. Can you answer that question?
9 A. Oh, it's overruled.
10 From what I picked up on the web
11 site, I could either contact -- I think contact
12 the company, referring to LTD by company, and I
13 believe there was another way also to generate an
14 account number, but I don't remember exactly how
15 it worked right now.
16 Q. Okay. And on page eight of this ordering
17 form section, do you see where it says in bold
18 blue print note, LTD Commodities will ship to
19 business names and addresses only. Please do not
20 change your company address to a private
21 residence.
22 Do you see that?
23 A. Yes.
24 Q. And did you read that before coming to the
L.A. REPORTING (312) 419-9292
384
1 conclusion that LTD does not engage in
2 business-to-business sales?
3 A. I didn't come to the conclusion they
4 don't, but I came to the conclusion that they
5 appear to sell to residences and/or businesses.
6 Basically, my testimony, I believe, was to state
7 that they apparently sell to both.
8 Q. Did you read on page -- the last page of
9 this order form where it says is this a new
10 account, question mark. If so, please check here
11 and attach your business stationery.
12 Did you read that?
13 A. Yes.
14 Q. Now, when you buy knickknacks, you
15 typically buy one knickknack, true?
16 MR. KAISER: Objection.
17 BY THE WITNESS:
18 A. I don't buy knickknacks.
19 MR. KAISER: Withdrawn.
20 BY MR. KOLAR:
21 Q. Have you ever purchased a wallet?
22 A. No.
23 Q. You've never purchased a wallet?
24 A. I've never purchased a wallet.
L.A. REPORTING (312) 419-9292
385
1 Q. Have you ever purchased a photo album?
2 A. No. I never purchased a photo album.
3 Q. Are you married?
4 A. Yes.
5 Q. Has your wife ever purchased a photo
6 album?
7 A. Yes.
8 Q. Did your wife ever go out, to your
9 knowledge, and buy three or more photo albums at
10 one time?
11 A. Yes, she has.
12 Q. Okay. Have you ever purchased a watch?
13 A. No.
14 Q. Do you have a watch on?
15 A. Yes. My wife bought it for me.
16 Q. When she got you that watch, did she give
17 you three watches or more?
18 A. No.
19 Q. And you saw throughout this catalogue in
20 the upper right-hand corner usually the note that
21 prices were in lots of three or more, right?
22 A. That's correct.
23 MR. KOLAR: I probably have still a way to
24 go. Do you want to --
L.A. REPORTING (312) 419-9292
386
1 HEARING OFFICER KNITTLE: Let's go off for
2 a second.
3 (Discussion had
4 off the record.)
5 HEARING OFFICER KNITTLE: Back on the
6 record.
7 BY MR. KOLAR:
8 Q. Are you aware that Mr. Schomer testified
9 that if LTD is classified as a C classification,
10 then based on Mr. Thunder's report there's no
11 violation of C to A numerical limits?
12 MR. KAISER: Objection. It may mistate
13 Dr. Schomer's testimony.
14 BY THE WITNESS:
15 A. I'm not aware of that.
16 HEARING OFFICER KNITTLE: I'm going to
17 overrule -- hold on a second, Mr. Zak.
18 THE WITNESS: Yes, sir.
19 HEARING OFFICER KNITTLE: That's okay.
20 I'm going to overrule and let him answer it. If
21 that's a misstatement of the testimony, I would
22 hope Mr. Zak would realize that.
23 BY MR. KOLAR:
24 Q. Have you read what Mr. Schomer testified
L.A. REPORTING (312) 419-9292
387
1 to last Friday?
2 A. No, I have not.
3 Q. Well, would you agree with that statement
4 that if LTD is a C class, there would be no
5 violation of the numerical regulations of the
6 Pollution Control Board?
7 A. No, I don't think that's correct. From
8 what I've seen of the Thunder report, there
9 appears to be even a problem in daytime.
10 Q. Now, for Sections 901.102 and 901.104 of
11 the regulations, a person has to use a one-hour
12 average, true?
13 A. Yes.
14 Q. And that's something different than the
15 one second versus five-second interval you talked
16 about, right?
17 A. Yes.
18 Q. So in determining whether impulse sounds
19 are in violation of 901.104, you've got to use a
20 one-hour average for the impulse sounds during
21 that one hour, right? Let me restate.
22 A. No. I understand the question. There's a
23 -- depending upon which version of regulations
24 you've got --
L.A. REPORTING (312) 419-9292
388
1 Q. I've got the corrected ones. Your web
2 site is wrong, isn't it? The Illinois Pollution
3 Control Board web site has an error on it
4 regarding the --
5 A. That's not ours. That's the Pollution
6 Control Board's.
7 HEARING OFFICER KNITTLE: Just for the
8 record, it's a joint venture between the Pollution
9 Control Board and the Illinois Environmental
10 Protection Agency.
11 BY MR. KOLAR:
12 Q. Have you ever looked at the Section
13 901.104 on the Illinois Pollution Control Board's
14 web site?
15 A. Yes.
16 Q. And that has an outdated version of that
17 regulation, true?
18 A. That's correct.
19 Q. It has that fast dynamic characteristic
20 reference, right?
21 A. That's correct.
22 Q. And it shouldn't be in there?
23 A. That shouldn't be in there.
24 Q. And the one I have here for 901.104
L.A. REPORTING (312) 419-9292
389
1 doesn't have that fast dynamic characteristic
2 reference, right?
3 A. That's correct. Your copy is printed by
4 the Illinois EPA, and that's got the correct
5 version.
6 Q. So for analyzing impulse sounds allegedly
7 coming from LTD, you would have to look at all
8 impulse sounds that happen in a one-hour period
9 and average those impulse sounds to determine if
10 there's a violation of 901.104?
11 A. You would use one-hour averaging, correct.
12 Q. And you would do the same thing for
13 901.102?
14 A. That's correct.
15 Q. So if we look at Complainants' Exhibit 19,
16 figure two, on the bottom Mr. Thunder shows the
17 nine octave band limits, right? Strike that.
18 On the bottom of figure two,
19 Mr. Thunder shows the nine octave band frequencies
20 in hertz, right?
21 A. Correct.
22 Q. So all figure two would tell us is the
23 level of a noise at a particular point in time,
24 right, as opposed to a one-hour average?
L.A. REPORTING (312) 419-9292
390
1 A. Could you clarify that question? I'm not
2 quite sure what you mean.
3 Q. Well, I thought I heard with Mr. Kaiser
4 you went through Complainants' Exhibit 19 and
5 Complainants' Exhibit 20, which is the Schomer
6 letter, and explained how they show a violation of
7 the impulse noise regulations of the Pollution
8 Control Board.
9 Do you recall that testimony?
10 A. I believe we were looking at the octave
11 band data.
12 Q. Okay. Well, on Complainants' Exhibit 20,
13 page two, LTD reported level decibels where Mr.
14 Schomer has put numbers here taken from apparently
15 Thunder documents.
16 What do you understand those numbers
17 to be?
18 A. I understood those to be a one-hour Leq
19 taken by Tom Thunder.
20 Q. What about on impulse, do you know if Mr.
21 Thunder had looked at impulse based on a one-hour
22 Leq when he had prepared his document January 8th,
23 1998?
24 A. I don't believe he did. I got the
L.A. REPORTING (312) 419-9292
391
1 impression reading through the document that he
2 was looking more at either fast response or a
3 five-second linear averaging rather than a
4 one-hour Leq.
5 Q. Then going back to Complainants' Exhibit
6 19, the Thunder report, figure two, what do you
7 understand this figure two to represent?
8 A. Well, it's the third octave band, and I'm
9 kind of perplexed as to why it's even there.
10 Q. Well, do you know --
11 A. It's to be expressed in octave bands.
12 That's one of the reasons I think that I really
13 hadn't paid a lot of attention to figure two
14 because what we're dealing with was mainly octave
15 levels in this situation, again, based on the
16 Thunder data.
17 Q. Well, with respect to Mr. Thunder's
18 analysis based on one-hour averaging, it would be
19 inappropriate for numerical purposes to simply
20 look at one impulse sound and ask whether that
21 sound violates the numerical regulations, true?
22 A. Well, with qualifications. If it was a
23 very robust impulsive sound, one would look at one
24 individual sound, but to, say, take a one-hour
L.A. REPORTING (312) 419-9292
392
1 period of time and have one small excursion in a
2 one-hour period of time, then the impact from that
3 would be, you know, negligible.
4 Q. I understand. But you can't take one
5 impulse sound that happened at a particular point
6 during the one hour and say that impulse sound
7 that occurred at 2:39 a.m. and 21 seconds was a
8 violation of the impulse numerical regulations,
9 true?
10 A. Not entirely. Again, if the sound is very
11 loud, you could because you would know from the --
12 even to bring it through a one-hour Leq that
13 you're going to end up with a number that is above
14 the regulatory limit, but that's an unusual
15 situation.
16 The normal situation, you're correct,
17 would be where you have, say, an impulse, perhaps,
18 even several impulses over a one-hour period of
19 time and they're all of short duration, not
20 extremely high level impulses, and over the
21 one-hour period of time of averaging they would
22 average out to a number that would be in
23 compliance with the regulations.
24 Q. I guess if we only had one impulse sound
L.A. REPORTING (312) 419-9292
393
1 during one hour, then the average would be, and
2 that's not even an average, that particular
3 impulse?
4 A. Yes, but I may need to qualify that and
5 say you were talking about a small impulse sound
6 as opposed to a large one. Basically, I think
7 what we're dealing with here are small impulse
8 sounds, but the statement has to be qualified.
9 Q. Would you agree that if you had 20 impulse
10 sounds during the one-hour period and one of them
11 was in excess of the numerical regulation for
12 impulse sounds, you couldn't just focus on that
13 one that was in excess to determine whether there
14 was a numerical violation?
15 A. That's true.
16 Q. You'd have to look at all 20 of those,
17 right?
18 A. Well, not only all 20 of those, but also
19 the one-hour period of time they all occurred in.
20 Q. Right. You'd have to look at the one-hour
21 period, every impulse sound during that one-hour
22 period and do the one-hour averaging?
23 A. Right, and you'd average a lot of
24 nonexistent sound in there.
L.A. REPORTING (312) 419-9292
394
1 Q. And for both 901.102 and 901.104, you'd
2 have to deduct or subtract ambient noise, right?
3 A. That's correct.
4 Q. And in early June 1999 when you went onto
5 the Roti property, the first thing you heard was
6 the tollway, right?
7 A. That's correct.
8 Q. And then you heard the tollway the whole
9 time you were on the Roti, the Rosenstrock and the
10 Weber property on that date in early June 1999?
11 A. That's correct.
12 Q. And you heard a couple truck noises when
13 you were on the Roti property, right?
14 A. It was on one of the properties. To be
15 honest with you and give you an honest answer, I
16 can't remember which property we were on when I
17 heard it.
18 Q. Well, the Roti property would be the one
19 farthest to the west directly north of the parking
20 lot. I think that was the one where you heard the
21 two sounds?
22 A. To answer your question fairly, it was one
23 of the three, but at what point in time it was,
24 you know, where I heard the sound I'm not sure.
L.A. REPORTING (312) 419-9292
395
1 Q. It would be accurate that when you were
2 there you only heard two truck sounds during the
3 time you were on the complainants' properties?
4 A. That could be.
5 Q. That's your recollection?
6 A. Yes.
7 Q. And is it accurate that you do not recall
8 hearing -- Strike that.
9 You did not hear any truck noise
10 sounds when you were on two of the three lots on
11 that day in June 1999, right?
12 A. Yes, I believe so. I didn't.
13 Q. And you have no idea as to the decibel
14 level of those two sounds you heard on one of the
15 complainants' properties in early June 1999,
16 correct?
17 A. I wouldn't be able to give you the exact
18 one-hour Leq level of those sounds, no.
19 Q. Were you at the LTD property this morning?
20 A. No.
21 Q. Would you agree that LTD would not be
22 responsible for any noise coming from the
23 Corporate 100 office building and parking lot to
24 the east?
L.A. REPORTING (312) 419-9292
396
1 A. Yes.
2 Q. In any of your visits, did you see a
3 garbage disposal facility in the northwest corner
4 of the Corporate 100 parking lot?
5 A. I don't remember that, no.
6 Q. Do you know if a garbage truck, in your
7 experience, has a back-up warning beeper on it?
8 A. Yes, it does.
9 Q. Okay. And have you seen the roll-out
10 Dumpsters around the state of Illinois that are
11 about as big as half the size of a compact car?
12 A. Yes.
13 Q. Okay. And you understand how garbage
14 trucks pick those up?
15 A. Yes.
16 Q. They're elevated into the air, tipped
17 upside down, and all the garbage falls in the
18 truck?
19 A. I've seen that type of operation done,
20 yes.
21 Q. And would you agree that that type of
22 operation creates impulse sounds, clanking of a
23 garbage container against parts of the truck?
24 A. It can. A lot depends upon what's in
L.A. REPORTING (312) 419-9292
397
1 the -- what type of wreckage they have in the
2 Dumpster.
3 Q. But I'm talking about the Dumpster itself
4 clanking against the truck itself, that can create
5 impulse sounds?
6 A. Yes, it can.
7 Q. And you would agree that a noise while on
8 LTD's property would in no way protect the
9 Rosenstrock property and the Weber property from
10 any noises created by the garbage disposal
11 facility?
12 A. That's correct.
13 Q. And you would agree that if Lakeside Drive
14 is a public road, LTD wouldn't be responsible for
15 any noise from the public road?
16 A. That's true.
17 Q. And you would agree that if the noise wall
18 had to stop on the LTD property, that noise wall
19 wouldn't protect Mr. Rosenstrock and the Webers
20 from any noise of trucks on the public road,
21 Lakeside Drive?
22 A. That's true.
23 Q. You would agree that the complainants,
24 because of their proximity to the tollway and a
L.A. REPORTING (312) 419-9292
398
1 commercial development to the south, simply live
2 in a noisy area.
3 MR. KAISER: Objection.
4 HEARING OFFICER KNITTLE: What's your
5 objection?
6 MR. KAISER: Leading.
7 MR. KOLAR: It's cross-examination.
8 HEARING OFFICER KNITTLE: Overruled.
9 BY THE WITNESS:
10 A. No, I would not necessarily agree with
11 that completely. The reason I say that is the
12 complaints seem to be occurring at the wee hours
13 of the morning in the early a.m., and I would
14 expect tollway noise to be down considerably at
15 that time, and also it's not the customary
16 practice in my experience of garbage trucks to be
17 picking up roll-out containers at 1:00 and 2:00
18 o'clock in the morning.
19 So looking at the period of time
20 where the complaints are coming in, I wouldn't
21 characterize that area as being excessively noisy
22 at that time.
23 BY MR. KOLAR:
24 Q. Would you agree based on your 27 years of
L.A. REPORTING (312) 419-9292
399
1 experience that if the wind is blowing from west
2 to east that the complainants will hear the
3 tollway more so than if the wind is going east to
4 west?
5 A. That's correct.
6 Q. Would you agree that if the tollway
7 pavement is wet that the complainants will hear
8 noise from the tollway more so than if it was dry?
9 A. That's true too.
10 Q. And you understand just based on a person
11 who lives in Illinois that the tollway could be
12 wet during the winter and springs months from rain
13 and snow?
14 A. Yes.
15 Q. So if you wanted to measure LTD noise on a
16 day when the tollway was wet, it would be
17 appropriate to deduct that ambient noise for that
18 particular day?
19 A. I wouldn't want to measure it when the
20 tollway is wet. That really wouldn't be the
21 proper way to do it. It would be proper to
22 measure when the tollway was dry because that
23 would be a more normal condition and also to
24 measure it at the same time that the complaints
L.A. REPORTING (312) 419-9292
400
1 are coming in, which would be in the early a.m.
2 Q. Well, have you done any sort of analysis
3 as to how many days during the year the tollway is
4 wet in the vicinity of the Roti property?
5 A. Based on my experience of living in
6 Illinois for 28 years, I would say it's dry more
7 times than it's wet.
8 Q. So would it be wet a third of the year?
9 A. I would say a third or less.
10 Q. Would it be wet 25 percent or 33 percent
11 of the year?
12 A. I would just -- my own personal opinion
13 would be to say 33 percent or less and leave it at
14 that.
15 Q. So it could be 32 percent and it could be
16 two percent?
17 A. Yes.
18 Q. Do, in your experience, trucks make more
19 noise when they accelerate than a truck at a
20 constant speed?
21 A. Yes.
22 Q. Do cars make more noise when they
23 accelerate than cars at a constant speed?
24 A. Depending on the car. A lot depends on an
L.A. REPORTING (312) 419-9292
401
1 individual car in a situation like that. I would
2 say typically, though, all else being equal,
3 acceleration would be noisier than, say, constant
4 high speed driving.
5 Q. So then you would agree that cars and
6 trucks accelerating away from a tollbooth would be
7 noisier than cars and trucks going at a constant
8 speed?
9 A. Generally speaking, yes.
10 Q. Do you know if there are any tollbooths in
11 the vicinity of LTD Commodities?
12 A. I don't know.
13 Q. Well, is that something you would want to
14 know before giving an opinion as to whether LTD
15 was violating a numerical regulations or nuisance
16 regulations?
17 A. Well, yes, and that would be taken care of
18 by the ambient measurements before any type of
19 measurements were taken.
20 Q. Now, the wall that you mentioned, the
21 $300,000 wall or less, 14 feet high, is it your
22 testimony that if such a wall is constructed that
23 then there would no longer, in your opinion, be a
24 numerical violation by LTD and no longer be a
L.A. REPORTING (312) 419-9292
402
1 nuisance, an alleged nuisance violation, by LTD?
2 A. I believe the wall would take care of the
3 -- again, I have to base this all on the Thunder
4 report. Based on Thunder's measurements, the wall
5 would bring the -- would solve the numerical
6 problem and largely solve any nuisance problem
7 with the one provision in there that after the
8 wall was up that activities in there would have to
9 be tailored in such a way as to keep the noise
10 down as much as possible.
11 Q. Well, but isn't the purpose of a noise
12 wall that you're recommending so that it would
13 block any noise from going from the trucking
14 operations to the complainants' properties?
15 A. No, no. The noise wall will reduce it.
16 It won't block it.
17 Q. It's your opinion that it will reduce it
18 below the numerical limits set by the Pollution
19 Control Board for B to A?
20 A. Yes.
21 Q. And if the noise wall you recommended
22 would reduce it below limits for B to A, you would
23 also agree, then, there wouldn't be a nuisance in
24 that situation?
L.A. REPORTING (312) 419-9292
403
1 A. Nuisance is determined in somewhat of a
2 different way. So I'm a little reluctant to say
3 at this point that there would be no potential for
4 nuisance there, although I do believe the wall
5 would greatly reduce any possibility of nuisance.
6 Q. Would you agree that the numeric limits in
7 901.102 and 901.104 are the limits above which
8 noise unreasonably interferes with people's lives
9 and business activity?
10 MR. KAISER: Objection, foundation.
11 HEARING OFFICER KNITTLE: Can you read
12 that back?
13 MR. KAISER: The state requires a legal
14 conclusion.
15 (Record read.)
16 HEARING OFFICER KNITTLE: Do you have a
17 response to his objection, Mr. Kolar?
18 MR. KOLAR: No.
19 HEARING OFFICER KNITTLE: I'm going to let
20 that stand. Objection overruled.
21 BY THE WITNESS:
22 A. I think you're combining the nuisance
23 regulation with the numerical regulation because
24 under a nuisance, we're looking at an unreasonable
L.A. REPORTING (312) 419-9292
404
1 interference.
2 BY MR. KOLAR:
3 Q. That's exactly what I'm doing.
4 A. And to say that if you exceed the
5 numerical limitations you're necessarily going to
6 create a nuisance depends on a lot of factors.
7 One common factor that's been known in Illinois
8 would be in a lot of areas we've got ambient noise
9 that's quite high and exceeds the Board's
10 limitations for numerical noise, and in a
11 situation like that, I would be reluctant to say
12 the ambient is creating unreasonable interference.
13 Q. So you're saying in some situations you
14 can have noise in excess of the numerical limits
15 of the regulations which is not a nuisance?
16 MR. KAISER: I'm sorry. I didn't hear
17 that question. Can I have it read back, please?
18 (Record read.)
19 BY THE WITNESS:
20 A. Yes, you could. For example --
21 MR. KOLAR: I would object and move to
22 strike anything beyond yes, you could.
23 HEARING OFFICER KNITTLE: Yeah. Let's
24 leave it at that. Do you have a response, Mr.
L.A. REPORTING (312) 419-9292
405
1 Kaiser?
2 MR. KAISER: I think it's the prerogative
3 of the question. I'm obviously going to follow it
4 up on redirect.
5 HEARING OFFICER KNITTLE: That's your
6 right to follow it up on redirect.
7 BY MR. KOLAR:
8 Q. Let's save time. Yes, you could. Why
9 don't you go on?
10 A. I was going to qualify that with a case
11 before the Pollution Control Board in Aurora
12 against the Pratt Company where the measurements
13 potentially exceeded Board standards. However,
14 the company was not -- was grandfathered in from
15 those standards, and the Board found in that case
16 that even though the measurements did exceed one
17 standard it was not -- it was not a nuisance.
18 Q. Is that the case where it was not a
19 nuisance because the noise emitter was there
20 first?
21 A. No, it wasn't. That really wasn't a
22 factor in the case.
23 Q. Well, was the noise emitter there first in
24 the Pratt case?
L.A. REPORTING (312) 419-9292
406
1 A. The complainant was Scarpino, Scarpino
2 versus Pratt Company, and the Scarpinos were there
3 for, like, 70 years, and the company I don't
4 believe was there that long. I think the
5 Scarpinos were there first.
6 Q. Well, in this particular case, do you know
7 what came first, trucking docks or the homes on
8 the complainants' property?
9 A. I believe, and I'm not positive of this,
10 but I believe that LTD was there first.
11 Q. Now, that Libertyville emergency warning
12 device we heard earlier, what was the octave band
13 of that device we heard?
14 A. Well, of course, it's a guess. I don't
15 have the instrumentation to measure it with me,
16 but I would say it would fall under the 1,000
17 hertz octave band.
18 Q. And you concluded sitting in the village
19 boardroom that that noise we heard was exempt?
20 A. Yes. Air raid sirens, emergency sirens
21 fall under the exemption under the Board
22 regulations.
23 Q. Do you know if that was a test siren or if
24 an actual emergency existed when it went off?
L.A. REPORTING (312) 419-9292
407
1 A. I don't know if it was a test or if it was
2 an actual emergency.
3 Q. Okay. So for back-up warning beepers on
4 trucks, you understand that the purpose is to warn
5 somebody that a truck is backing up, right?
6 A. Yes.
7 Q. It could warn that person to get out of
8 the way of a truck that's backing up, right?
9 A. Yes.
10 Q. So you could envision situations where a
11 person might be so close to a truck that when the
12 warning device goes off it prevents him from being
13 injured?
14 A. Yes.
15 Q. Okay. You would agree that if a person is
16 so close to the trailer that when the tractor
17 starts to back up and the warning device goes off
18 that that would be an emergency situation?
19 A. No.
20 Q. So if someone was in imminent danger of
21 getting hurt by a trailer backing up, you wouldn't
22 classify that as an emergency?
23 A. No, I wouldn't.
24 Q. What if a person is working on the tires
L.A. REPORTING (312) 419-9292
408
1 on a trailer right there by the tires and
2 unbeknownst to that person the yard tractor hooks
3 up and is going to back up and he hears the
4 warning beeper and he gets away from the tire,
5 would that be an emergency situation?
6 MR. KAISER: Objection, calls for a legal
7 conclusion.
8 HEARING OFFICER KNITTLE: I'm going to
9 overrule. I think Mr. Zak has been well qualified
10 as a noise expert and we will let him interpret
11 the regulations.
12 BY THE WITNESS:
13 A. To answer your question, I don't think
14 it's an emergency, and the reason I don't think
15 it's an emergency is I can't imagine a person not
16 hearing the tractor as you described there couple
17 up to the trailer, which is a noisy operation.
18 Also, it will cause the trailer to jerk a little
19 bit, but somebody working on a tire would be well
20 aware of the tractor operation hooking up, let
21 alone before it backed up.
22 BY MR. KOLAR:
23 Q. As you sit here today, can you envision
24 one circumstance where the back-up warning device
L.A. REPORTING (312) 419-9292
409
1 on the LTD yard tractor would warn somebody in
2 case of an emergency?
3 A. No, I can't.
4 Q. You're aware under the regulations there's
5 an exemption for vehicles ingressing and egressing
6 from a highway, right?
7 A. Yes.
8 Q. You would agree that based on the
9 regulation that the trucks you saw at LTD would be
10 vehicles?
11 A. Yes.
12 Q. In fact, let's look together here at
13 901.107(f). You see it says Sections 901.102
14 through 901.106 inclusive shall not apply to the
15 operation of any vehicle. Let's break this down.
16 Now, the numerical violations that
17 the complainants make would be included in that
18 first phrase, right?
19 A. Yes.
20 Q. And you would agree that the trucks would
21 be included in the phrase vehicle, right?
22 A. Yes.
23 Q. And you would agree that all those trucks
24 you saw, except for maybe the yard tractor, are
L.A. REPORTING (312) 419-9292
410
1 registered for highway use?
2 A. Yes.
3 Q. And you would agree that those trucks were
4 being operated within land used as specified in
5 901.101, right?
6 A. Yes.
7 Q. And you would agree that for those trucks
8 to get to the land, meaning the LTD land, they
9 have to come off of Lakeside Drive?
10 A. Yes.
11 Q. And in order to egress the LTD property,
12 those trucks have to accelerate and then leave on
13 Lakeside Drive?
14 A. Yes.
15 Q. And then those trucks go onto Route 22,
16 right?
17 A. I'm not sure where they go from there.
18 Q. Well, they have to leave Lakeside Drive
19 and go to this east-west road which is south of
20 LTD, right?
21 A. Yes.
22 Q. Now, the noise wall that you recommend
23 would not have any impact on tollway noise at the
24 complainants' property, true?
L.A. REPORTING (312) 419-9292
411
1 A. That's correct.
2 Q. Now, what's the case that you cited at
3 page 17 that addresses emergency warning devices?
4 I didn't hear the name of that.
5 A. That would be Dorothy Hoffman versus City
6 of Columbia, I don't remember offhand which
7 Pollution Control Board case number that is, but
8 on page 17, the Board does go into some detail on
9 how they reached the conclusion they did.
10 Q. And prominent discrete tones you
11 understand that there's a completely separate
12 regulation for prominent discrete tones, 901.106,
13 correct?
14 A. That's correct.
15 Q. And before coming here to testify today,
16 did Mr. Kaiser in any way tell you that on
17 April 16th, 1999, Michael Hara claimed that we're
18 a business-to-business mail-order company?
19 A. No.
20 Q. And during, I think, the first break this
21 morning -- break in your testimony, you, as Mr.
22 Kaiser acknowledged, you were talking to Mr.
23 Kaiser about testimony you were going to give
24 after the break, right?
L.A. REPORTING (312) 419-9292
412
1 A. He had showed me a couple of the exhibits
2 that he was going to refer to written by Schomer,
3 and I don't recall it, though, being specific as
4 far as the testimony that was to come afterwards.
5 I think he was just basically jogging my memory
6 because I hadn't seen those documents for quite
7 some time.
8 Q. Now, do you recall there being a large
9 side yard to the east of the Roti house?
10 A. A large grassy area. Is that what you're
11 referring to by side yard?
12 Q. Right.
13 A. Yes.
14 Q. So if the Rotis are affected by noise as
15 they allege at their house, you would expect the
16 noise to also travel through that grassy side yard
17 to the north?
18 A. Yes, but I would expect it also to drop
19 about six decibels in traveling that distance.
20 MR. KOLAR: I'm just checking my notes. I
21 may be done. Could I just have a minute?
22 HEARING OFFICER KNITTLE: Sure.
23 (Brief pause.)
24
L.A. REPORTING (312) 419-9292
413
1 BY MR. KOLAR:
2 Q. Have you read any documents prepared by
3 Mr. Schomer relative to noise from the tollway
4 affecting Bannockburn residents?
5 A. Not to my memory.
6 Q. Would you agree that when noise is created
7 and comes onto people's residential property they
8 complain about the noise, but then when you take
9 the noise away, they still complain?
10 A. Not normally.
11 Q. Well, you would agree that in some --
12 Strike that.
13 You're familiar with something that
14 happened in California years ago where there was
15 noise along, I think, a highway and they measured
16 the noise and then put in a row of trees, measured
17 the noise again, and the noise was the same level,
18 right?
19 A. That's correct. I believe I told you that
20 story.
21 Q. Right. And in that case, the people who
22 were complaining thought it was better after all
23 the trees were put in?
24 A. Yes, due to the appearance and kind of the
L.A. REPORTING (312) 419-9292
414
1 old saying of out of sight, out of mind.
2 Q. Okay. So in this particular case, LTD
3 could put up a noise wall which prevents noise
4 from going to the complainants' property in excess
5 of the numerical regulations and the complainants
6 and future property owners could still complain
7 about LTD operations?
8 MR. KAISER: Objection, calls for
9 speculation.
10 HEARING OFFICER KNITTLE: I'll sustain
11 that.
12 BY MR. KOLAR:
13 Q. Can you guarantee LTD that they'll have no
14 more complaints from the complainants or future
15 owners of those homes if they put up a noise wall
16 like you recommended?
17 A. I'm not really in the business of making
18 those kind of guarantees.
19 Q. So you could not make that guarantee,
20 correct?
21 A. That's true.
22 Q. Complainants' Exhibit 29, it's an
23 April 20th, 1998, letter from Karen Roti to Mike
24 Hara. That's basically your form letter that you
L.A. REPORTING (312) 419-9292
415
1 provide people to send to the alleged noise
2 violator, correct?
3 A. Well, I wouldn't call it so much of a form
4 letter as there's an example letter in the
5 package, and what people typically do is take out
6 bits and chunks that fit their situation and
7 compose their own letter.
8 Q. Have you ever been involved in a case
9 where the complainants kept very detailed logs of
10 every single time they heard noise on their
11 property?
12 A. Yes.
13 MR. KAISER: Objection, relevance as to
14 what other complainants did.
15 HEARING OFFICER KNITTLE: Yes. I'll
16 sustain that.
17 BY MR. KOLAR:
18 Q. In this particular case, have you seen any
19 detailed logs dating back to November 1996 as to
20 each day when the complainants were allegedly
21 affected by noise from LTD?
22 A. Not that I remember.
23 Q. And as you sit here today, you don't
24 remember the complainants giving you any sort of
L.A. REPORTING (312) 419-9292
416
1 recording as to the noise emitted from the LTD
2 trucking operations, right?
3 A. By recording, do you mean -- are you
4 talking about tape recording or taking
5 measurements and writing them down? I'm not quite
6 sure what you mean by that.
7 Q. Tape recording.
8 A. Tape recording. I don't remember any.
9 Q. And if you were to do numerical
10 measurements as to noise from an operation, would
11 you do it over more than a one-day period?
12 MR. KAISER: Objection, relevance.
13 HEARING OFFICER KNITTLE: Overruled.
14 BY THE WITNESS:
15 A. Depending upon the nature of the case, if
16 the measurements were taken and the complainants
17 said that it was very typical, the noise was very
18 typical that day or that evening so I had a good
19 set of measurements, I may just go with a single
20 set of measurements.
21 If it was a situation where the
22 complainant says well, the noise is -- this is not
23 the worst example of the noise, in a case like
24 that, I might go back and take additional measures
L.A. REPORTING (312) 419-9292
417
1 when they felt the noise was at its worst.
2 Q. Mr. Zak, you have no undergrad or graduate
3 degree in business, correct?
4 A. That's correct.
5 Q. You've never been an employee, an owner,
6 or any way associated with a business similar to
7 LTD's business?
8 A. That's true.
9 MR. KOLAR: I don't have anything else.
10 HEARING OFFICER KNITTLE: Redirect?
11 MR. KAISER: I do, but I note for the
12 record that Mr. Zak has been going almost without
13 stop for three and a half hours. Can you go a
14 little longer?
15 THE WITNESS: Let's go.
16 MR. KAISER: How about the hearing
17 officer?
18 HEARING OFFICER KNITTLE: I'm perfectly
19 okay.
20 MR. KAISER: Wonderful.
21 R E D I R E C T E X A M I N A T I O N
22 by Mr. Kaiser
23 Q. Mr. Zak, one of the questions Mr. Kolar
24 asked you towards the end of his examination was
L.A. REPORTING (312) 419-9292
418
1 whether you observed this empty lot to the east of
2 the Roti's home and just to the west of
3 Mr. Rosenstrock's home, you said that you could
4 see that on Respondent's Exhibit 89; is that
5 right?
6 A. Yes.
7 Q. And the question and really where Mr.
8 Kolar seemed to be going was well, if there's this
9 open space and the noise can travel there, where
10 are these people to the north. Did you kind of
11 understand that to be the tension of his question?
12 A. Yes.
13 Q. And you told us that you would expect the
14 noise to travel to the north, but by the time that
15 it reached the home to the north that the noise
16 would have been reduced by six decibels. Is that
17 your testimony?
18 A. Yes.
19 Q. And do you have a rule of thumb that helps
20 you calculate and equate decibels to distance and
21 how far the noise has to travel before it drops
22 off a certain decibel amount?
23 A. Yes.
24 Q. And what is that rule of thumb?
L.A. REPORTING (312) 419-9292
419
1 A. It's a rule of thumb that for every
2 doubling of distance, the sound level is going to
3 decrease by six decibels just like if you halve
4 the distance or cut it in half, the sound level
5 will decrease by six decibels, and the specific
6 law of physics I'm referring to there is the
7 inverse square law.
8 Q. And I won't ask you to explain it, but I
9 appreciate that by way of foundation.
10 Now, there was some discussion about
11 the provision of the Board's regulations that
12 exempt from regulation trucks while they're
13 ingressing and egressing from a highway.
14 Do you recall that portion of Mr.
15 Kolar's cross-examination?
16 A. Yes.
17 Q. Do you have an opinion as to whether the
18 truck traffic and the noise from the truck
19 operations within the LTD dock area are exempt
20 under that, what I'll call, the highway ingress
21 and egress exemption to the Board's regulation?
22 A. No, I don't think so, and the reason I
23 don't think so is --
24 MR. KOLAR: Objection. I think that's a
L.A. REPORTING (312) 419-9292
420
1 conclusion for the Pollution Control Board and not
2 a proper area for opinion testimony.
3 HEARING OFFICER KNITTLE: Okay. I'm going
4 to overrule. You, sir, can answer the question.
5 BY THE WITNESS:
6 A. Where the complainants are complaining
7 about the trucking noise is long after the trucks
8 have either entered the facility or long before
9 they exited the facility. So I think ingress and
10 egress exemption is not relevant in this case
11 because we're looking at activities that are
12 occurring at the loading docks on the property of
13 LTD.
14 BY MR. KAISER:
15 Q. And the release of the air brakes, that
16 doesn't occur on Lakeside Drive, to your
17 knowledge, does it?
18 A. No. Again, the -- where it would be
19 extremely audible would be in the north end of the
20 building there with the building reflecting the
21 air brake sound into the residential area.
22 Q. And, similarly, that north wall of the LTD
23 facility would have the -- would reflect the noise
24 of the back-up warning beeper?
L.A. REPORTING (312) 419-9292
421
1 A. Yes. It would also do that too.
2 Q. And I take it that north wall would also
3 reflect the sound of the slamming as the tractor
4 and the trailer couple and uncouple?
5 A. Yes, it would.
6 Q. Now, there was some discussion during Mr.
7 Kolar's cross-examination about the interplay
8 between the numeric regulations and nuisance
9 standard, and if I understood the question was
10 from Mr. Kolar if LTD or any other noise generator
11 is in compliance with the numeric limits, then as
12 I understood Mr. Kolar's questioning and his
13 argument if you meet the numeric limits, you can't
14 be a nuisance.
15 Did you understand that to be the
16 thrust of Mr. Kolar's questioning?
17 MR. KOLAR: Objection to the comment the
18 thrust of Mr. Kolar's question. I don't think
19 that's proper redirect.
20 HEARING OFFICER KNITTLE: I'll sustain
21 that.
22 MR. KOLAR: It's leading as well. He
23 can't lead. I can in cross.
24 HEARING OFFICER KNITTLE: I'll sustain
L.A. REPORTING (312) 419-9292
422
1 that. I don't think, just from my own
2 perspective, that was the thrust regardless, but I
3 don't think it is proper to ask Mr. Zak what the
4 thrust of his question was.
5 BY MR. KAISER:
6 Q. Have you ever had a situation, Mr. Zak,
7 where you've observed noise levels that have been
8 measured and been found to be in compliance with
9 the numeric standards and yet heard from neighbors
10 that the noise was a nuisance?
11 A. Yes.
12 Q. And in what situations, if you can
13 generalize, is it more common for people to
14 complain about noise even if the noise level is
15 below the numeric limit, what characteristics of
16 the noise give it the quality that people perceive
17 and define as a nuisance?
18 A. Two very common characteristics are either
19 an impulsive nature or a total or prominent
20 discrete tone-type feature of the noise, and
21 especially with the current Board one-hour
22 impulsive noise measurement, it's quite common to
23 have people complain about nuisance factors for
24 impulsive noise that will appear to be in
L.A. REPORTING (312) 419-9292
423
1 compliance when measured according to the one-hour
2 Leq standard, but yet the sound will be very
3 irritating to the residents.
4 Q. All right. And to reiterate, you've
5 identified noise at the LTD dock area that's both
6 impulsive and containing prominent discrete tones;
7 is that correct?
8 A. Yes.
9 Q. Now, with respect to the Board's
10 regulations and the manner in which the Board
11 currently requires people to analyze impulsive
12 noise, that one-hour Leq averaging, if the noise
13 source were the impulsive noise caused by the
14 repetitive sound of a dropped forge or some type
15 of hammering operation that is rhythmic and
16 repetitive and yet impulsive by nature, do you
17 have an opinion as to whether the Board's current
18 impulsive noise measurement protocols and numeric
19 -- and the way in which you calculate a violation
20 of the Board's impulsive numeric standard, would
21 the Board's regulation capture and evaluate that
22 type of rhythmic, repetitive, impulsive sound?
23 MR. KOLAR: Objection, leading and it was
24 so long, I just got lost on that question.
L.A. REPORTING (312) 419-9292
424
1 HEARING OFFICER KNITTLE: Do you
2 understand the question, Mr. Zak?
3 THE WITNESS: Yes, I do.
4 HEARING OFFICER KNITTLE: I'm going to let
5 him answer it then. Overruled.
6 BY THE WITNESS:
7 A. The type of situation you described there
8 would be, say, a forging operation, and the Board
9 already has a section in the regulations there for
10 forging noise, and they do use a one-hour Leq for
11 measuring forge noise, and that's proper because
12 we're looking at thousands of blows or thousands
13 of impulsive noises in a one-hour period of time,
14 and so in a situation like that, the one-hour Leq
15 works fine.
16 Examples of it breaking down, there
17 have been gunfire complaints in the past, and it
18 would take between five and 6,000 shots an hour to
19 exceed the Board's impulsive limits; whereas,
20 under the older methodology, it would, in essence,
21 just take one or two to exceed it.
22 So it's not at all uncommon, like I
23 say, with impulsive noise to see a situation where
24 it's measured, it appears to be in compliance,
L.A. REPORTING (312) 419-9292
425
1 and, yet, we still have a lot of complaints on
2 it.
3 MR. KOLAR: Can I just have a
4 clarification as to whether he's talking about the
5 regulation for prominent discrete tones or was he
6 talking about impulsive tones?
7 HEARING OFFICER KNITTLE: Mr. Zak.
8 THE WITNESS: Impulsive.
9 BY MR. KAISER:
10 Q. Do the Board's regulations with respect to
11 numeric violations in connection with prominent
12 discrete tones also require the one-hour Leq
13 averaging?
14 A. Yes.
15 Q. And is the same, what I would term,
16 deficiency that you've observed in the regulations
17 of impulse noise, are those also present in the
18 regulations with respect to prominent discrete
19 tones?
20 MR. KOLAR: Objection. I don't think we
21 should have to meet regulations which are not in
22 place.
23 HEARING OFFICER KNITTLE: Excuse me. I
24 couldn't hear what you said.
L.A. REPORTING (312) 419-9292
426
1 MR. KOLAR: LTD is not responsible for
2 meeting regulations which are not even in place.
3 He's claiming the Pollution Control Board
4 regulations are deficient, and if they were up to
5 the standard, we would be in violation of the
6 these.
7 HEARING OFFICER KNITTLE: I'll sustain
8 that objection.
9 MR. KAISER: You don't want to hear from
10 me on that one?
11 HEARING OFFICER KNITTLE: Pardon?
12 MR. KAISER: You don't want to hear from
13 me on that one?
14 HEARING OFFICER KNITTLE: No, I don't.
15 You can comment on why you think my sustaining the
16 objection was wrong.
17 MR. KAISER: Well, that's fine. We've got
18 ground to cover here. Thank you.
19 BY MR. KAISER:
20 Q. With respect to the tollway noise, I mean,
21 you could see the tollway is relatively close to
22 the Roti, Rosenstrock and Weber homes, right?
23 A. Correct.
24 Q. And it's no secret trucks and cars on the
L.A. REPORTING (312) 419-9292
427
1 tollway and entering the tollway and going through
2 the tollbooth on their way to the tollway make
3 noise, right?
4 A. Correct.
5 Q. And that's reflected in the -- and we
6 would term that noise the ambient background
7 noise?
8 A. That's right.
9 Q. Now, what do you do in a situation where
10 you have a high ambient background noise and, yet,
11 you have impulsive sounds and prominent discrete
12 tones emanating from the LTD dock area? How do
13 the Board's regulations -- do you have an opinion
14 as to how the Board's regulations would be applied
15 in that situation to determine whether the noise
16 from the LTD dock area as perceived by the Roti,
17 Rosenstrock, and Weber residences whether that
18 noise is a nuisance?
19 A. Yes, I do.
20 Q. And what is that opinion?
21 A. Well, my opinion is that the background or
22 ambient noises created by the tollway is an
23 advantage for LTD because it actually brings the
24 standard up that they have to meet. They don't
L.A. REPORTING (312) 419-9292
428
1 have to meet as stringent a standard by having the
2 tollway there and the background noise from the
3 tollway.
4 Thunder made an ambient correction
5 there and I would also so that LTD is actually
6 allowed to make more noise than they would be
7 allowed to make if the tollway wasn't there. So
8 the tollway noise doesn't really create a
9 disadvantage. It creates an advantage for LTD.
10 As far as the nuisance is concerned,
11 again, what the residents are complaining about is
12 largely impulsive noise that is occurring at the
13 LTD facility and they're able to hear it quite
14 clearly above the background ambient noise.
15 Q. And based on your years of experience and
16 observation and knowledge of sound and noise, is
17 that part of the essence of discrete tones and of
18 impulse noise that they can be heard through even
19 a high ambient background level of noise?
20 A. Yes. That's one of the characteristics of
21 a discrete tone is that it is quite audible even
22 with a lot of background noise, and we have a
23 situation here where you have the back-up beepers
24 being both impulsive in nature and that impulsive
L.A. REPORTING (312) 419-9292
429
1 noise they're generating is a discrete tone type
2 of noise that's designed to be a real attention
3 getter, and that gives it a very irritating
4 characteristic.
5 Q. Now, there was a portion of Mr. Kolar's
6 cross-examination where he brought out his copy of
7 the entire Standard Land Use Coding Manual, and I
8 believe that's been marked for purposes of
9 identification as Respondent's Exhibit 34.
10 A. Yes.
11 Q. You saw this.
12 Now, the Board did not take the
13 entirety of Respondent's Exhibit 34, the whole
14 manual, and make that the attachment to the noise
15 regulations, did it?
16 A. That's correct. They did not.
17 Q. And are you aware of any language within
18 the Board's regulations that says we, the Board,
19 pledge and commit ourselves to interpret the
20 appendix which we're borrowing from the Standard
21 Land Use Coding Manual in the exact manner in
22 which the Department of Transportation, the
23 Federal Highway Admission who commissioned the
24 Standard Land Use Coding Manual in the exact
L.A. REPORTING (312) 419-9292
430
1 manner in which the Department of Transportation
2 would interpret the Appendix B that we're
3 borrowing?
4 A. No, I did not.
5 Q. Do you understand that the Board and the
6 Agency have essentially handed over the discretion
7 for applying and determining whether a land use is
8 Class A, B, C, or U to the Department of
9 Transportation and given up any ability to
10 independently apply and make those determinations
11 regarding a property's land use?
12 A. No, they haven't.
13 Q. And from what I understood, one of your
14 first responsibilities when you began work with
15 the Environmental Protection Agency was to work
16 with them, and they took the report, Schomer's
17 Deposition Exhibit 2, as a starting point for what
18 became the promulgation and adoption of the noise
19 regulations back in 1973; is that right?
20 A. That's correct.
21 Q. And it was that process that you were
22 personally involved with?
23 A. That's correct.
24 Q. Now, Mr. Kolar back in July sent you a
L.A. REPORTING (312) 419-9292
431
1 letter and asked you to send him a couple of cases
2 and a copy of your resume?
3 A. Correct.
4 Q. And you stated that it was an oversight,
5 and you didn't send him that information?
6 A. That's correct.
7 Q. And did you not send that information
8 because you wanted to handicap LTD's preparation
9 of their case and the defense of their case?
10 A. Not in any way.
11 MR. KOLAR: And I'll stipulate that he
12 didn't try to handicap us.
13 BY MR. KAISER:
14 Q. And approximately how many noise
15 complaints do you respond to during the course of
16 a year?
17 A. Right now, about 3,000 a year.
18 Q. And you're the only person within the
19 Agency who fields those complaints?
20 A. That's correct.
21 Q. And there are some respects with which you
22 would agree LTD is reasonably well suited to its
23 location; is that right?
24 A. Yes, as far as the transportation hub
L.A. REPORTING (312) 419-9292
432
1 there, they can easily move their merchandise off
2 onto highways and tollways and expressways.
3 Q. So in that respect, they're suited to this
4 location?
5 A. Correct.
6 Q. But is it also your opinion that given the
7 fact that they have a residential subdivision just
8 to the north and their loading docks are located
9 on the north end of their property that it would
10 also be technically feasible and economically
11 reasonable for LTD to construct a noise wall to
12 reduce the migration of noise from its dock to the
13 residences to the north?
14 A. Yes.
15 Q. And at one point in Mr. Kolar's
16 cross-examination of you, he asked whether you
17 knew there was a tollbooth in the vicinity of LTD,
18 and I believe your response was you weren't
19 certain whether there was or was not?
20 A. That's correct.
21 Q. And now I'm representing to you that on
22 this aerial photograph what I'm showing here just
23 to the west of the LTD facility on Respondent's
24 Exhibit 89 is a tollbooth that cars and trucks
L.A. REPORTING (312) 419-9292
433
1 entering the northbound lanes of 294 are required
2 to pass through.
3 Do you see what I'm showing there?
4 A. Yes, I see it.
5 Q. Does the presence of that tollbooth and
6 the fact that cars and trucks may be accelerating
7 as they pass through that tollbooth in any way
8 alter the opinions you expressed during direct
9 examination where you thought that reasonable
10 people could perceive the noise from the LTD dock
11 operations as a nuisance?
12 A. No. I would say that the tollbooth would
13 have -- I can't see where it would have a
14 significant affect on the people's complaint about
15 noise from the LTD facility.
16 Q. And does the fact that you're now aware
17 that there's a tollbooth just to the west of LTD
18 affect in any way your recommendation and opinion
19 that a noise wall would be technically feasible
20 and economically reasonable?
21 A. No.
22 MR. KAISER: Thank you, Mr. Zak. I have
23 no further questions.
24 MR. KOLAR: Two quick areas, seriously.
L.A. REPORTING (312) 419-9292
434
1 R E C R O S S - E X A M I N A T I O N
2 by Mr. Kolar
3 Q. Let me just return to this ingress, egress
4 exception. You would agree that the way this
5 exemption is read that it applies to the vehicles
6 being operated within the emitter's land?
7 A. Well, for clarification purposes there, I
8 think it has to be clarified, and by saying it's
9 not an exemption for the vehicles that are
10 operated on the land itself. It's only an
11 exemption as the vehicles leave the property or
12 enter the property.
13 Q. Well, let's see if that's true.
14 Subparagraph f, it says that those sections shall
15 not apply to the operation of any vehicle
16 registered for highway use while such vehicle is
17 being operated within any land use as specified in
18 Section 901.101.
19 So the land they're talking about
20 there would be land classified as Class B, Class
21 C, or whatever the case is in the particular
22 situation, right?
23 A. Right.
24 Q. Okay. So then applying this in this case,
L.A. REPORTING (312) 419-9292
435
1 this exemption would apply to the LTD situation to
2 a tractor-trailer in the staging area all hooked
3 up ready to accelerate and leave the land and go
4 onto the highway which is Lakeside Drive, right?
5 MR. KAISER: Objection to the
6 classification of Lakeside Drive as a highway. It
7 calls for a legal conclusion.
8 HEARING OFFICER KNITTLE: We've been
9 scurrying this particular issue for a while. I'm
10 going to overrule and let him continue as we have
11 been doing.
12 BY MR. KOLAR:
13 Q. Can you answer that question? Let me back
14 up.
15 You agree Lakeside Drive, if it's a
16 public roadway, is a highway as the word highway
17 is defined in the regulations?
18 A. It appears so, yes.
19 Q. So then given that, the exemption,
20 901.107(f) would apply to the situation of an LTD
21 tractor-trailer all hooked up and accelerating out
22 of the truck staging area onto the driveway that
23 leads to Lakeside Drive?
24 MR. KAISER: Objection to the
L.A. REPORTING (312) 419-9292
436
1 classification of the LTD tractor-trailer. LTD
2 testified that they've neither owned a tractor or
3 a trailer. So LTD tractor-trailer is a misleading
4 phrase.
5 HEARING OFFICER KNITTLE: Do you want to
6 rephrase, Mr. Kolar? He's correct.
7 MR. KOLAR: He's correct, but I don't
8 think it matters.
9 HEARING OFFICER KNITTLE: I concur.
10 MR. KOLAR: He's correct, and it doesn't
11 matter.
12 HEARING OFFICER KNITTLE: Right, but if
13 you could rephrase the question, that would solve
14 the problem.
15 Do you understand, Mr. Zak, that it's
16 not a tractor-trailer owned by LTD?
17 THE WITNESS: Yes.
18 HEARING OFFICER KNITTLE: Does that matter
19 in terms of you answering this particular
20 question?
21 THE WITNESS: I don't think it does, no.
22 HEARING OFFICER KNITTLE: Then you can go
23 ahead.
24
L.A. REPORTING (312) 419-9292
437
1 BY THE WITNESS:
2 A. Again, in answer to the -- historical
3 interpretation by both the Agency and the Board
4 for the last 27 years is that this applies only at
5 the point of ingress and egress.
6 In other words, in this situation
7 here, right where the trucks either enter the
8 property of LTD or leave the property of LTD, once
9 they're on the property and operating on the
10 property, there have been numerous decisions by
11 the Pollution Control Board that it then becomes a
12 stationary noise source as opposed to being
13 exempted under Section 901.107(f).
14 BY MR. KOLAR:
15 Q. Setting the interpretations aside, you
16 would agree that reading the text of that
17 exception, that exemption would cover the
18 situation of a tractor-trailer in the LTD staging
19 area accelerating and leaving the staging area
20 onto the driveway that leads to Lakeside Drive,
21 right?
22 MR. KAISER: Objection. For the record,
23 it calls for a legal conclusion.
24 HEARING OFFICER KNITTLE: I just want to
L.A. REPORTING (312) 419-9292
438
1 note we've had a lot of legal conclusions or
2 things that could be phrased legal conclusions
3 from Mr. Zak on both sides. So I'm going to let
4 them both stand.
5 BY MR. KOLAR:
6 Q. Can you answer that question, please?
7 A. I still read it as the point of entry and
8 the point of exit as opposed to basically giving
9 the truck carte blanche to do anything it wants to
10 on the property as long as --
11 Q. So you disagree with me?
12 A. I disagree with you on that, yes.
13 Q. Okay. The Pollution Control Board will
14 decide that, right?
15 A. That's correct.
16 Q. Then just finally, when I asked you your
17 opinion regarding if LTD was suitably located --
18 A. Yes.
19 Q. -- when I asked you that question during
20 your deposition, you at that time understood that
21 I was using the word suitability as it's used in
22 Section 33 C iii of the Environmental Protection
23 Act, true?
24 A. Yes, and that's why I put the qualifier on
L.A. REPORTING (312) 419-9292
439
1 there that with noise controls.
2 Q. But I'm talking at your deposition when I
3 asked you the question of suitability, you knew at
4 that point in time on July 9th that we are talking
5 suitability as the word is used in Section 33C of
6 the Environmental Protection Act, right?
7 A. Yes, but I just wanted to -- keep it --
8 clarify it when I was answering it.
9 MR. KOLAR: I don't have any further
10 questions.
11 HEARING OFFICER KNITTLE: Any re-redirect
12 on those two issues?
13 MR. KAISER: No. Mr. Knittle, no. Thank
14 you very much.
15 HEARING OFFICER KNITTLE: Mr. Zak, thank
16 you very much.
17 THE WITNESS: Thank you.
18 HEARING OFFICER KNITTLE: You can step
19 down. We're taking lunch. It's quarter until
20 2:00. Let's go off.
21 (Whereupon, further proceedings
22 were adjourned pursuant to the
23 lunch break and reconvened
24 as follows.)
L.A. REPORTING (312) 419-9292
440
1 (Whereupon, Mr. Hara
2 joined the proceedings.)
3 HEARING OFFICER KNITTLE: We're back on
4 the record after a short break. It's the
5 afternoon session starting at 2:40 for this
6 hearing which is PCB 1999-019. I want to note for
7 the record there are still no members of the
8 public here nor have there ever been members of
9 the public since the commencement of this hearing
10 aside from at times various complainants and, of
11 course, Mr. Hara from LTD who is back with us
12 again today. It's still your case-in-chief. You
13 can proceed.
14 MR. KAISER: Thank you, Mr. Knittle. The
15 complainants would call as their first witness
16 this afternoon Leslie Weber.
17 HEARING OFFICER KNITTLE: Ms. Weber,
18 you're already seated, so if you could swear her
19 in, I would appreciate it.
20 (Witness sworn.)
21 HEARING OFFICER KNITTLE: It's your
22 witness, Mr. Kaiser.
23 MR. KAISER: Thank you, Mr. Knittle.
24
L.A. REPORTING (312) 419-9292
441
1 WHEREUPON:
2 L E S L I E W E B E R,
3 called as a witness herein, having been first duly
4 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 Mr. Kaiser
7 Q. Ms. Weber, would you please state your
8 full name and spell your last name for the court
9 reporter's benefit?
10 A. Yes. Leslie Ann Weber, W-e-b-e-r.
11 Q. And, Ms. Weber, are you one of the
12 complainants in this matter?
13 A. Yes, I am.
14 Q. Where do you live?
15 A. 1481 West Wedgewood in Lake Forest.
16 Q. With whom do you live at that address?
17 A. My husband Henry and my two sons Scott and
18 Christopher.
19 Q. How old is Scott?
20 A. Scott is 16.
21 Q. How old is Christopher?
22 A. Nine.
23 Q. You live in the vicinity of LTD
24 Commodities Bannockburn, Illinois, facility, do
L.A. REPORTING (312) 419-9292
442
1 you not?
2 A. Yes, I do.
3 Q. And up in front of you is an aerial
4 photograph that's been marked for purposes of
5 identification as Respondent's Exhibit 89.
6 Can you see that from where you're
7 seated?
8 A. Yes. I can.
9 Q. Are you able to locate by reference either
10 to the tollway and Route 22 the outline of LTD's
11 roof line?
12 A. Yes.
13 Q. And is that essentially this large square
14 object in the center of the photograph?
15 A. Yes.
16 Q. Now, I see to the north that there's an
17 area here. Do you know what is located in that
18 area immediately to the north of the LTD warehouse
19 facility?
20 A. Those are docks. Those are trucks,
21 trailers.
22 Q. And I'm now pointing at the residence of
23 Karen Roti.
24 Do you recognize that?
L.A. REPORTING (312) 419-9292
443
1 A. Yes.
2 Q. And Ms. Roti's residence is directly north
3 of the truck docks?
4 A. Yes.
5 Q. And do you know who lives just to the east
6 of Ms. Roti?
7 A. Mr. Rosenstrock.
8 Q. And that's Paul Rosenstrock, one of the
9 complainants in this matter?
10 A. Yes.
11 Q. And then is your home located then just to
12 the east of Mr. Rosenstrock's?
13 A. Yes.
14 Q. Do I understand it correctly that you
15 purchased the land on which your home is now
16 located in roughly July of 1988?
17 A. Yes.
18 Q. And did you, in fact, pay approximately
19 $223,000 for the lot without improvements?
20 A. Yes.
21 Q. And can you describe for the Board what
22 efforts you and your husband made, what areas you
23 looked in before you decided to purchase the lot
24 here on Wedgewood Drive in Lake Forest, Illinois?
L.A. REPORTING (312) 419-9292
444
1 A. We looked at other lots within Lake
2 Forest. We looked at lots in Long Grove, and I
3 think that's -- I think we also looked at some
4 property in Libertyville.
5 Q. And what was it that was attractive to you
6 about the lot that you eventually purchased on
7 Wedgewood Drive in Lake Forest?
8 A. We liked the fact that it was a large
9 lot. We liked the zoning and the fact it was also
10 wooded.
11 Q. And did you contract with Orren,
12 O-r-r-e-n, Pickell, P-i-c-k-e-l-l to build a home
13 on the lot located at 1481 West Wedgewood Drive?
14 A. Yes, we did.
15 Q. And did the cost of construction of your
16 home, was that cost approximately $453,000 --
17 $453,687?
18 A. Yes.
19 Q. And is it your recollection that you, your
20 husband Henry, and your sons Scott and Christopher
21 moved in to your completed home at 1481 west
22 Wedgewood Drive in January of 1992?
23 A. Yes.
24 Q. Now, in January, February, or March, in
L.A. REPORTING (312) 419-9292
445
1 fact, the entirety of the year of 1992, were you
2 in any way adversely affected by noise generated
3 by the loading docks at the LTD facility?
4 A. No.
5 Q. And throughout the entirety of 1993, were
6 you adversely affected in any way by noise from
7 the loading docks at LTD Commodities Bannockburn
8 facility?
9 A. No.
10 Q. Were you --
11 MR. KOLAR: Did she answer that?
12 THE WITNESS: No. I said no.
13 HEARING OFFICER KNITTLE: She did. You
14 might want to speak up so everybody can hear you.
15 MR. KOLAR: Sorry.
16 THE WITNESS: All right.
17 BY MR. KAISER:
18 Q. And how about during 1995, were you on any
19 kind of routine or systematic basis disturbed
20 while in your home or in your yard on Wedgewood
21 Drive? Were you disturbed by noise coming from
22 LTD's dock area?
23 A. In 1995?
24 Q. In 1995.
L.A. REPORTING (312) 419-9292
446
1 A. No, I was not.
2 Q. And I would like to show you a document
3 that's previously been marked for purposes of
4 identification as Complainants' Exhibit 37, and
5 I'd like you to look at this closely because
6 there's some -- this one-page document is a
7 diagram of the vicinity of LTD facilities and it
8 includes certain representations as to where the
9 Roti home is, where the Rosenstrock and Weber
10 homes are.
11 Now, I'd ask you to look closely and
12 tell me if those are accurate or if by chance your
13 home is set one lot further to the east, if you
14 know?
15 A. This looks accurate.
16 Q. That looks accurate to you.
17 And if you would with the highlighter
18 I'm handing you and the black ink pen that I'm
19 handing you highlight your home and indicate in
20 your hand that that's the Weber residence.
21 A. (Witness complied.)
22 MR. KOLAR: Can I just see?
23 HEARING OFFICER KNITTLE: Yes. Please,
24 approach.
L.A. REPORTING (312) 419-9292
447
1 BY MR. KAISER:
2 Q. All right. And does this diagram
3 approximately relate the location of your home and
4 the location of LTD's Bannockburn facility, if not
5 exactly to scale, it gives some visual --
6 A. It's a relative representation.
7 Q. Relative representation. All right.
8 Thank you.
9 MR. KOLAR: She marked the one farthest to
10 the right?
11 MR. KAISER: Yes.
12 BY MR. KAISER:
13 Q. Now, in 1996, did you experience a change
14 in noise levels coming from the dock area of LTD's
15 Bannockburn operations?
16 A. In 1996, late summer, I noticed
17 significant noise coming from somewhere.
18 Q. And when you say significant noise, can
19 you give us a little more detail in terms of in
20 what way was it significant?
21 A. There was some vehicular noise. It
22 sounded like a loud diesel engine. There was very
23 loud booming noises coming from that vicinity to
24 the southwest of my home. There were other
L.A. REPORTING (312) 419-9292
448
1 crashing noises.
2 Q. Had you ever heard these sounds before?
3 A. No.
4 Q. Did you investigate to determine the
5 source of these new noises?
6 A. I would get up and look out my window and
7 try to determine if I could see lights or see any
8 vehicles moving in the parking lot behind my home
9 and could not. I actually got up in the middle of
10 the night on some nights and drove around to the
11 road off 22 to see if I could identify the source
12 of the noise and saw truck traffic and
13 tractor-trailer -- J.B. Hunt tractor-trailers in
14 the parking lot behind LTD and isolated the
15 noise -- the vehicular noise, the diesel noise, to
16 what I've subsequently found out is called a yard
17 tractor or yard pig. It was moving the tractors
18 to and fro.
19 Q. So as I understand it -- well, let's take
20 it piece by piece. You're saying in the middle of
21 the night you got up out of bed, put on a wrap,
22 got in your car, and went to try to find out where
23 this noise was coming from?
24 A. That's correct.
L.A. REPORTING (312) 419-9292
449
1 Q. And did you leave your subdivision and go
2 out to Telegraph Road?
3 A. Yes.
4 Q. Down to 22?
5 A. Yes.
6 Q. And did you drive up Lakeside Drive?
7 A. Yes.
8 Q. And did you in your car get to a position
9 where you were able to observe operations at the
10 LTD dock?
11 A. Yes. I would drive behind the office
12 building, and --
13 Q. Is it this office building?
14 A. Yes.
15 Q. And we've been referring to this as
16 Corporate 100. Do you know that office building
17 as Corporate 100?
18 A. No, I don't know the name of it, but it's
19 the one directly behind my home.
20 Q. All right. Just north of this detention
21 pond or lagoon?
22 A. Yes, yes.
23 Q. And where did you go?
24 A. I would swing around and I would park or
L.A. REPORTING (312) 419-9292
450
1 position my car so I could kind of get a view into
2 the freight area, into the dock area.
3 Q. And what did you see as you sat in your
4 car in the parking lot behind Corporate 100 and
5 gazed into the LTD dock area?
6 A. I could see the yard tractor moving
7 tractors and moving vehicles with a sound that
8 corresponded to the one I could hear from my home.
9 Q. Could you, to the best of your ability,
10 describe in your words the sound made back in the
11 time frame of the fall of '96 by the diesel yard
12 pig or yard tractor that was operating in the LTD
13 dock area?
14 A. It was a very, very, very loud diesel
15 engine noise. It was nothing like a
16 tractor-trailer. It was much louder when it
17 would -- when it would rev up, it did so with just
18 a very high volume of noise.
19 Q. And were you able to observe this yard pig
20 or yard tractor engage with a semitrailer?
21 A. Yes. At the time it would back up and
22 essentially crash into the semi, it made the
23 crashing noises that I had heard.
24 Q. And were you able to observe this yard
L.A. REPORTING (312) 419-9292
451
1 tractor to disengage from semitrailers?
2 A. Yes.
3 Q. Did you note whether it made any noise
4 when it disengaged?
5 A. It would make, as I recall, the air brake
6 release noise, which is kind of a very loud
7 whoosh.
8 Q. This air brake release noise, does it
9 build up or is it a sudden type of noise?
10 A. It's a sudden noise.
11 Q. Did you note in the fall of 1996 whether
12 any of the vehicles operating in the LTD dock area
13 were using back-up warning beepers?
14 A. I don't recall that in 1996.
15 Q. I'm showing you what's been marked for
16 purposes of identification as Complainants'
17 Exhibit 8. It's a letter it appears that you
18 wrote and sent to David Lothspeich on or about
19 January 30th, 1997.
20 Do you see that letter?
21 A. Yes.
22 Q. Is this a true and accurate copy of the
23 letter you sent to David Lothspeich on or about
24 January 30th, 1997?
L.A. REPORTING (312) 419-9292
452
1 A. Yes.
2 Q. Does this letter essentially describe the
3 incident you just narrated in which you awoke, put
4 on a wrap, went out and investigated the source of
5 the noise?
6 A. It identifies one instance. I've made
7 subsequent trips over to that -- to LTD
8 Commodities to that area behind the office
9 building to identify the source of the noise.
10 Q. Can you tell the Board approximately how
11 many subsequent trips you took to investigate the
12 source of the noise?
13 A. I think I took one before this before my
14 husband and I did. I have certainly taken ones
15 after that in subsequent years.
16 Q. Through the writing of the letter January
17 30th, 1997, approximately how many times had you
18 gone over?
19 A. Probably five times.
20 Q. And were those in the evening or during
21 the day or both?
22 A. In the evening.
23 Q. Did you find in the fall of 1996 and the
24 early winter of 1997 that there was a particular
L.A. REPORTING (312) 419-9292
453
1 time of day during which the noise from the LTD
2 dock area was most disruptive?
3 A. It was most disruptive when it would wake
4 me up, but it was very loud all during the early
5 evening hours as well.
6 Q. Is it your testimony that during the fall
7 of 1996 you were awakened by noise that you
8 attribute to dock activities at LTD?
9 A. Yes.
10 Q. Do you recall how many times you were
11 awakened from your sleep in the fall of 1996 by
12 noise you attribute to LTD's dock activities?
13 A. No, I do not recall how many times I was.
14 Q. Was it more than one time?
15 A. Yes.
16 Q. I note that in your letter to
17 Mr. Lothspeich of January 30th, 1997, you state in
18 the bottom paragraph my objective in this matter
19 is to find a resolution whereby the commercial
20 property does not impair my or my family's ability
21 to get a peaceful night's sleep.
22 Was that, in fact, your objective in
23 January of 1997?
24 A. Yes.
L.A. REPORTING (312) 419-9292
454
1 Q. Had you or your family members experienced
2 disruption to your sleep beyond the one or more
3 episodes where you were awakened from sleep in the
4 fall of 1996?
5 A. It impaired our ability to get to sleep.
6 Q. How?
7 A. Because you would be hearing the noises as
8 you were trying to fall asleep, and they were
9 sporadic and very loud and intrusive.
10 Q. Would you close your windows in an effort
11 to keep the sound out?
12 A. Yes.
13 Q. Was that effective?
14 A. No.
15 Q. Are you certain as you sit here today that
16 the noise you were hearing back in the fall of
17 1996 that was preventing you and family members
18 from falling asleep and on one or more occasions
19 awakened you from your sleep originated from the
20 LTD dock areas and not from car or truck traffic
21 in the vicinity of Corporate 100?
22 A. Yes. I'm absolutely sure.
23 Q. During the course -- in 1996 -- in the
24 fall of 1996 and then into the spring of 1997, did
L.A. REPORTING (312) 419-9292
455
1 you observe any variation in the level of activity
2 and the level of noise being generated by LTD's
3 loading docks? Was there a difference between
4 fall and spring, comparing the fall of 1996 with
5 the spring of 1997?
6 A. Yes. The noise level dissipated in late
7 December.
8 Q. And this noise back in the fall of 1996,
9 how late into the evening would you hear this
10 noise?
11 A. I typically go to bed between 10:00 and
12 11:00, and I would certainly hear it as I went to
13 go to sleep, and then it would sometimes wake me
14 up or if I happened to wake up, I would hear it at
15 2:00 o'clock in the morning.
16 Q. What time do you usually -- back in the
17 fall of 1996 did you get up in the morning to go
18 to work?
19 A. Between 5:30 and 6:00 a.m.
20 Q. During the early morning hours, and by
21 that I mean between 5:30 a.m. and 7:00 a.m.,
22 during the fall of 1996, do you recall whether you
23 heard noise from the LTD dock area?
24 A. I don't recall that. I don't recall the
L.A. REPORTING (312) 419-9292
456
1 morning.
2 MR. KOLAR: What time period was that?
3 I'm sorry.
4 HEARING OFFICER KNITTLE: It was the fall
5 of '96 between 5:30 a.m. and 7:00 a.m. Actually,
6 it's not that that's bothering him, Mr. Kaiser.
7 There's a --
8 MR. KAISER: I noticed that. Yeah.
9 That's Joe's concern, the wasp flying above his
10 head. I'm just catching some backlight here.
11 MR. KOLAR: That's why I didn't hear the
12 answer.
13 HEARING OFFICER KNITTLE: That's what I
14 assumed.
15 MR. KOLAR: I'm looking at the wasp.
16 BY THE KAISER:
17 Q. Other than the interference with your
18 ability to fall asleep and your ability to stay
19 asleep, during the fall of 1996 did the noise from
20 the LTD dock interfere with your use and enjoyment
21 of your property in any other ways?
22 A. Well, we certainly sleep with the windows
23 shut, and in the early part of the fall, late
24 summer, early part of the fall, we wouldn't spend
L.A. REPORTING (312) 419-9292
457
1 any time outside with the lawn furniture on the
2 patio.
3 Q. Do you have a patio on the south side of
4 your home?
5 A. We have two decks on the back part of the
6 home. One is on the southwest corner. The other
7 is on the south side behind the kitchen.
8 Q. And did the noise from the LTD docks
9 during the late summer, early fall of 1996
10 interfere with your ability to use and enjoy the
11 patios on the south side of your home?
12 A. The outside of the home. We don't have
13 patios. We have decks.
14 Q. Decks. I'm sorry. The decks?
15 A. Yes, yes.
16 Q. Your answer is yes?
17 A. Yes.
18 Q. I want to quickly show you a letter that's
19 been marked for purposes of identification as
20 Complainants' Exhibit 7. It's a letter from David
21 Lothspeich to Mike Hara dated February 7th, 1997.
22 By the way, you've met Mr. Hara
23 before, have you not?
24 A. No. We've never met.
L.A. REPORTING (312) 419-9292
458
1 Q. Is this the first time you've seen
2 Mr. Hara?
3 A. Yes.
4 Q. And you understand Mr. Hara is the chief
5 operating officer for LTD Commodities?
6 A. Yes.
7 Q. Now, this Exhibit 7, the February 7th,
8 1997, letter from Dave Lothspeich to Mr. Hara, I
9 see that you are CC'd on this letter.
10 Do you see that down at the bottom?
11 A. Yes, I do.
12 Q. Do you recall whether on or about February
13 7th, 1997, you received a copy of that letter?
14 A. Yes.
15 Q. In February of 1997, did you still
16 perceive noise from the LTD dock area to be a
17 problem?
18 A. In February, no, the noise was not
19 occurring.
20 Q. Did you have any expectation as to whether
21 the noise would return the following fall?
22 A. I was certainly very hopeful that based on
23 the letters we had sent and Bannockburn's
24 involvement that it would desist.
L.A. REPORTING (312) 419-9292
459
1 Q. And that is there wouldn't be a problem in
2 the fall?
3 A. Correct.
4 Q. Did you understand at that time, February
5 of 1997, that LTD's business is somewhat seasonal
6 and that they employ more workers and have a
7 greater volume of truck traffic during the months
8 of September, October, November, and December than
9 they do during the winter and spring months?
10 A. No. I did not know what LTD did.
11 Q. Okay. If I may just see that letter. I
12 note that in Complainants' Exhibit 7, Mr.
13 Lothspeich writes, in addition, I'm forwarding to
14 you a copy of a January 31st, 1997, letter from
15 LTD neighbor Leslie Weber voicing their concerns
16 about your operations. This letter would seem to
17 reiterate the issues discussed regarding the yard
18 pig slamming into the truck trailers.
19 Was that one of the noises that you
20 heard this yard pig slamming into the truck
21 trailers?
22 A. I had heard two slamming noises when I
23 went to take a look at the operation. One was the
24 yard pig slamming into the trailer. The other was
L.A. REPORTING (312) 419-9292
460
1 the tractor-trailer doors as the tractor was
2 backed into position, frequently the doors were
3 open, and they would slam shut and slam back open
4 again.
5 Q. And that was a noise you could hear while
6 inside your home?
7 A. Yes.
8 Q. I note that this letter of February 7th
9 references a meeting. As requested by LTD
10 neighbor Bill Kaufman during our January meeting,
11 I am forwarding a copy of the noise regulations.
12 Do you recall whether you attended a
13 meeting hosted or held by the village of
14 Bannockburn in January of 1997 during which the
15 issue of LTD's noise was a subject of discussion?
16 A. There was a meeting at Bannockburn Town
17 Hall that I attended on this topic, this topic of
18 the noise generated by LTD.
19 Q. I'm showing you what's now been marked for
20 purposes of identification as Complainants'
21 Exhibit 10. It's a letter from David Lothspeich
22 to Mike Hara dated April 25th, 1997. I see that
23 your CC'd on this letter.
24 Do you know whether you received a
L.A. REPORTING (312) 419-9292
461
1 copy of that letter in the latter part of
2 April 1997?
3 A. Yes, I recall this.
4 Q. And what was your state of optimism in
5 April of 1997 about the noise problems being
6 resolved?
7 A. I was --
8 MR. KOLAR: Objection. I don't think her
9 optimism regarding the resolution is relevant.
10 HEARING OFFICER KNITTLE: Mr. Kaiser.
11 MR. KAISER: I think it may go to state of
12 mind or potential bias. I think it gives the
13 Board a flavor of the ups and downs of this
14 process that's unfolded now over almost a
15 three-year period. So I think it's helpful for
16 the board to gauge the point at which people who
17 are now complainants had some sense that maybe
18 there would be a solution to this problem outside
19 of an enforcement action. So I think it would be
20 helpful in the Board's analysis.
21 HEARING OFFICER KNITTLE: Anything
22 further, Mr. Kolar?
23 MR. KOLAR: No.
24 HEARING OFFICER KNITTLE: I'm going to
L.A. REPORTING (312) 419-9292
462
1 allow it in. I don't know that I will in the
2 future though. I can't see how relevant it is,
3 but for this one time, we'll allow the question.
4 BY MR. KAISER:
5 Q. Do you recall the question?
6 A. No. If you can repeat it, I would
7 appreciate it.
8 Q. It was essentially did you think in
9 April of 1997 that you were on track to find a
10 solution outside of the enforcement context?
11 A. Well, given that the second paragraph
12 which indicates that there wasn't much feedback on
13 the part of LTD Commodities, I did start to get
14 concerned that we were going to have recurring
15 problem in 1997.
16 Q. Now, I'm showing you what's been marked
17 for purposes of identification as Complainants'
18 Exhibit 11. It's a letter from David Lothspeich
19 to Mike Hara dated July 11th, 1997. It states
20 based upon this letter and conversations with
21 Mr. Paul Schomer, it's my understanding that the
22 village and LTD have agreed upon the methodology
23 for performing the sound analysis in mid-August.
24 Did you receive a copy of that letter
L.A. REPORTING (312) 419-9292
463
1 in July of 1997?
2 A. Yes.
3 Q. And were you experiencing -- were you
4 hearing noise from LTD during July of 1997?
5 A. No.
6 Q. During the fall of 1997, and I use that
7 term roughly to describe a period beginning
8 September 1st and extending until December 15th of
9 1997, did you hear anything from LTD's dock area?
10 A. Yes. Starting in late August, we started
11 to hear the noises, increased activity in the
12 evening hours.
13 Q. And this increased activity, what type of
14 activity was that?
15 A. The air brakes, the booming noises of the
16 dropping of the trailers, the noise of the spotter
17 or the trailer as it moved the -- the tractor as
18 it moved the trailer into positions.
19 Q. Did you hear those -- with what degree of
20 regularity did you hear those noises during
21 September of 1997?
22 A. You would hear them frequently in the
23 course of an evening. I didn't time them, but I
24 would guess it would be somewhere in the nature of
L.A. REPORTING (312) 419-9292
464
1 once every ten minutes, once every five minutes.
2 Q. And you would hear noise from LTD that
3 frequently while you were inside your home --
4 A. Yes.
5 Q. -- during September of 1997?
6 A. Yes.
7 Q. Did your awareness -- well, did the fact
8 that you were hearing noise from LTD's facility
9 every 15 or 20 minutes throughout the course of
10 the evening while in your home during September of
11 1997, did that in any way interfere with your use
12 and enjoyment of your home?
13 MR. KOLAR: Objection, leading.
14 HEARING OFFICER KNITTLE: Sustained.
15 MR. KAISER: It doesn't suggest an answer
16 at all. Did it interfere, yes or no? It can be
17 answered no as well as yes.
18 HEARING OFFICER KNITTLE: That doesn't
19 mean it's not a leading question. You are on
20 direct examination. If he's going to make that
21 objection, I'm going to sustain it to that
22 particular question.
23 BY MR. KAISER:
24 Q. Did noise from LTD's operations during
L.A. REPORTING (312) 419-9292
465
1 September of 1997 interfere with your use and
2 enjoyment of your home?
3 MR. KOLAR: Objection, leading.
4 HEARING OFFICER KNITTLE: He's going to
5 get there eventually. I'm going to allow it to go
6 in, but Mr. Kaiser do try to be cautious about
7 asking leading questions on direct examination.
8 MR. KAISER: I'll do my best, but the
9 allegation is it unreasonably interfered with the
10 use and enjoyment of the home.
11 HEARING OFFICER KNITTLE: I'm not saying
12 it's an improper question.
13 MR. KAISER: I'm saying did it interfere
14 --
15 HEARING OFFICER KNITTLE: I will note for
16 the record, you know, you've been asking leading
17 questions off and on on direct examination that
18 haven't been objected to, and if he wants to
19 object to leading questions on direct examination,
20 I have no choice but to uphold those objections.
21 BY MR. KAISER:
22 Q. Do you recall the question?
23 A. Yes, I do, and it interfered with my
24 activities in the evening, with the quiet I expect
L.A. REPORTING (312) 419-9292
466
1 in my home in the evening hours.
2 Q. Do you work out of the home during the
3 day?
4 A. No, I do not.
5 Q. Where do you work now?
6 A. Where do I work now?
7 Q. Yeah.
8 A. I'm employed now by Quill Corporation.
9 Q. And what's your -- when do you begin work
10 and when do you leave work?
11 A. I typically leave between around 7:30
12 a.m., and I get home anywhere between 6:00 and
13 7:30 in the evening.
14 Q. And in the late summer, early fall of
15 1997, were you working for the Quill Corporation
16 or any other corporation?
17 A. I was working for another company named
18 Fel-Pro, F-e-l, dash, P-r-o, Incorporated.
19 Q. What time of day were you leaving the
20 house and when were you returning to the house
21 during the summer and fall of 1997?
22 A. I was probably working very similar hours,
23 leaving the house at 7:30 in the morning and
24 returning somewhere in the vicinity of 6:30.
L.A. REPORTING (312) 419-9292
467
1 Q. And just by way of background, what is
2 your educational background, Ms. Weber?
3 A. I have a bachelor's degree in English and
4 I have an MBA.
5 Q. From what university did you receive your
6 degrees?
7 A. Boston College for my bachelor's and
8 Northeastern University in Boston for my MBA.
9 Q. What was your job title with Fel-Pro in
10 the fall of 1997?
11 A. I was the director of information systems.
12 Q. What is your current title with the Quill
13 Corporation?
14 A. I'm the vice-president of information
15 systems.
16 Q. Are these executive positions?
17 A. Certainly the one I'm in right now is.
18 Q. Is it fair to say you have a fair degree
19 of responsibility within the Quill Corporation?
20 A. Yes.
21 Q. Have you -- do you have an opinion as to
22 whether you perform your job for the Quill
23 Corporation better if you're well rested, or can
24 you perform equally well if you haven't slept the
L.A. REPORTING (312) 419-9292
468
1 night before?
2 MR. KOLAR: Objection. It wasn't
3 disclosed. I don't think that's a -- it's not a
4 proper opinion question.
5 HEARING OFFICER KNITTLE: Mr. Kaiser.
6 MR. KAISER: This is a person who has sat
7 for three hours and been deposed by Mr. Kolar, and
8 Mr. Kolar had every opportunity to ask Ms. Weber
9 every conceivable question about the way in which
10 the noise disturbed her.
11 Now, the fact that -- I couldn't
12 write a list long enough to disclose everything.
13 He had as much time as he wanted to discover this,
14 and to argue that it's somehow beyond the scope or
15 wasn't sufficiently disclosed is, in my
16 estimation, absurd. He knows because Ms. Weber
17 has filed a complaint and has been battling LTD
18 for three years that the noise is a problem and
19 it's a severe problem or she wouldn't be spending
20 her time and money to be here.
21 Now, to argue that we can't have her
22 tell the Board whether disruption of her sleep
23 affects her job performance in a case involving
24 noise nuisance strikes me as absurd.
L.A. REPORTING (312) 419-9292
469
1 MR. KOLAR: Well, I just have a short
2 reply.
3 HEARING OFFICER KNITTLE: Sure.
4 MR. KOLAR: It's his job to disclose
5 opinions. I don't even have to take her
6 deposition if I don't want to. I could just rely
7 on the opinions he disclosed, and if I don't ask a
8 particular question at a deposition, he can ask it
9 himself, but he hasn't disclosed opinions.
10 The second issue is noise at her
11 home, and unless she's working for Quill
12 Corporation out of her home, then it wouldn't be
13 relevant to numerical or nuisance violations
14 relating to LTD noise from its property to the
15 Weber property.
16 HEARING OFFICER KNITTLE: I'm going to
17 overrule the objection. Go ahead and ask the
18 question.
19 BY MR. KAISER:
20 Q. Do you recall the question?
21 A. No.
22 MR. KAISER: Could you read it back,
23 please?
24 (Record read.)
L.A. REPORTING (312) 419-9292
470
1 MR. KOLAR: Objection, leading.
2 HEARING OFFICER KNITTLE: That was the
3 question that we had all the objections to that I
4 overruled. Was there another one there, Mr.
5 Kolar?
6 MR. KOLAR: Then I added leading to it
7 after you overruled my other objections.
8 HEARING OFFICER KNITTLE: I can see why
9 you were having trouble with the wasp above your
10 head. I'm going to overrule that and let her
11 answer the question. A lot of this, like I said,
12 I do think has been leading. They are questions
13 that he can get to if they're asked in the proper
14 form.
15 I don't want to lengthen this any
16 more than necessary. If it's a leading question
17 that I think is going to be prejudicial or hurtful
18 to either side, I'm going to step in and grant the
19 objection, but unless I think so, I'm going to let
20 it go.
21 BY THE WITNESS:
22 A. It certainly impacts my ability to work if
23 I'm not well rested. I'm called upon to make a
24 lot of decisions and deal with crises of the day
L.A. REPORTING (312) 419-9292
471
1 and manage quite a few people and give them very
2 crisp direction.
3 BY MR. KAISER:
4 Q. And have you observed whether at any time
5 from 1996 to the present that noise from the LTD
6 facility -- have you observed whether the noise
7 from LTD has disrupted your sleep and affected
8 your job performance?
9 A. It's disrupted my sleep, but it has also
10 been annoying to the point where it becomes really
11 invasive and impacts -- somewhat impacts your
12 personality. You get very short-tempered and
13 grouchy in the anticipation that we're going to
14 have to deal with the noise on a nightly basis.
15 Q. Have you observed that noise from LTD has
16 caused you to be short-tempered?
17 MR. KOLAR: Objection, asked and answered
18 or answered already.
19 HEARING OFFICER KNITTLE: Yeah. I'll
20 sustain that. She just stated that Mr. Kaiser.
21 BY MR. KAISER:
22 Q. Your testimony is that the noise that you
23 hear from LTD has affected your personality, that
24 you've become short-tempered and grouchy. Is that
L.A. REPORTING (312) 419-9292
472
1 a fair characterization?
2 A. Yes.
3 Q. Are you experiencing those feelings or
4 that change in your mood or personality now,
5 November 2nd, 1999, as a result of LTD's dock
6 operations?
7 A. Yes.
8 Q. Were you experiencing those changes in
9 mood or personality during October of 1999 as a
10 result of LTD's dock operations?
11 A. Yes, and then we're going through it again
12 in October of '99.
13 Q. And did you experience those same feelings
14 during the fall of 1998?
15 A. Yes.
16 Q. As you sit here today, have you been able
17 to determine through your own observations whether
18 LTD's business is seasonal?
19 A. Yes.
20 Q. What have been your observations in that
21 respect?
22 A. That the peak periods are from mid to end
23 of August through the second to third week of
24 December.
L.A. REPORTING (312) 419-9292
473
1 Q. Did you and I meet at your home one
2 evening last week to talk about the hearing?
3 A. Yes.
4 Q. And did I sit with you and your husband
5 Henry in your living room and talk about what I
6 expected would happen at the hearing?
7 A. We sat in the family room.
8 Q. That's the family room?
9 A. Yes.
10 Q. Thank you.
11 Did we also walk out onto the deck
12 just off of the family room?
13 A. Yes, we did.
14 Q. What, if anything, do you recall hearing
15 as we stood out on the deck sometime last week,
16 the last week of October 1999?
17 A. We heard the diesel noise. We heard the
18 air brakes. We heard a beeping. We heard a
19 thumping noise, and I think those were the
20 predominant noises that we heard.
21 Q. Now, beeping appears to be a new sound.
22 That was not one of the sounds you recall hearing
23 in the fall of 1996; is that correct?
24 A. That is correct. This sound -- this
L.A. REPORTING (312) 419-9292
474
1 beeping sound seems to be new this year, this
2 constant just constant beeping noise. It comes
3 and goes, but it's more constant than not.
4 (Whereupon, Mr. Weber
5 joined the proceedings.)
6 MR. KOLAR: I would move to exclude
7 Mr. Weber while his wife is testifying.
8 MR. KAISER: I note that Henry Weber,
9 Leslie Weber's husband, has just arrived at the
10 hearing.
11 MR. KOLAR: I withdraw it. He's a
12 complainant. I think complaints have a right to
13 sit in.
14 HEARING OFFICER KNITTLE: Yeah. I think
15 so.
16 MR. KOLAR: I withdraw it.
17 HEARING OFFICER KNITTLE: Okay.
18 BY MR. KAISER:
19 Q. You were saying this beeping noise appears
20 to be something new this year?
21 A. Yes.
22 Q. Is that your observation?
23 A. Yes. I recall beeping noises before. I
24 remember them last year, the back up -- a back-up
L.A. REPORTING (312) 419-9292
475
1 alarm, but this is -- seems to be just virtually
2 continual.
3 HEARING OFFICER KNITTLE: Let me
4 interject. Is your husband a party to this case?
5 THE WITNESS: No.
6 MR. KAISER: He's not a named
7 complainant.
8 HEARING OFFICER KNITTLE: Yeah. He's not
9 a named complainant, and I'd be willing to grant
10 that motion, Mr. Kaiser.
11 MR. KAISER: I'm not making the motion.
12 MR. KOLAR: I would move to exclude him.
13 HEARING OFFICER KNITTLE: No. I'm just
14 saying I'll let you make -- do you have a response
15 you want to make before I do that? Generally, I
16 allow those.
17 MR. KAISER: No. I have no response.
18 HEARING OFFICER KNITTLE: Mr. Weber, we
19 hate to do this to you, but can you vacate for a
20 little bit?
21 MR. WEBER: Sure.
22 HEARING OFFICER KNITTLE: There's a
23 conference room if you go out here and take a left
24 and all the way down, take another left and keep
L.A. REPORTING (312) 419-9292
476
1 going. There's a little room with a chair and
2 table you can sit in. Sorry for the interruption.
3 MR. KAISER: That's okay.
4 HEARING OFFICER KNITTLE: I was just
5 looking at the caption, and I realized he wasn't a
6 party.
7 BY MR. KAISER:
8 Q. All right. So previously you've heard
9 something that you would describe as a back-up
10 alarm?
11 A. Yes.
12 Q. But this beeping sound that you're hearing
13 now in the fall of 1999, this to your ears is
14 something new?
15 A. Yes.
16 Q. And, again, are you certain that this
17 beeping noise that you're hearing -- and do you
18 hear that in your home?
19 A. Yes.
20 Q. Do you hear that with the doors and
21 windows closed on your home?
22 A. Yes, you do.
23 Q. Do you hear this in the evening at your
24 home?
L.A. REPORTING (312) 419-9292
477
1 A. Yes.
2 Q. Do you hear this after 10:00 p.m. in your
3 home?
4 A. Yes.
5 Q. Can you hear this as you lie in your bed
6 and try to fall asleep?
7 A. Yes, and you can hear it in the morning as
8 well.
9 Q. And is that before 7:00 a.m. in the
10 morning that you're hearing this beep?
11 A. Yes.
12 Q. Are you sure that you're not hearing the
13 back-up beeper as the garbage truck picks up
14 garbage from the Corporate 100 Dumpster?
15 A. I have heard that as well. I can
16 distinguish between the two.
17 Q. And the noise that you're describing for
18 the Board now is noise that you are certain is
19 coming from the LTD facility?
20 A. Yes.
21 Q. It's not coming from car traffic or
22 construction traffic going to this relatively
23 newly constructed building to the southeast of
24 your property?
L.A. REPORTING (312) 419-9292
478
1 A. No. That construction is completed.
2 Q. During the course of a given hour during
3 the weekday, that is Monday through Friday, in the
4 hour from -- in the hours from 9:00 p.m. until
5 roughly 11:00 p.m., how often would you say you
6 hear that back-up beeper?
7 A. As I said, you hear it virtually
8 continually. I was listening to it last week. It
9 was rather nice out where you could sit outside,
10 and other than, you know, intermittent time for a
11 few seconds, perhaps, where it would stop, you
12 would hear it.
13 Q. Is there anytime during the week when you
14 can be in your home or in the yard or on your
15 decks and not hear noise from LTD's truck docks?
16 A. When you say during the week, you're
17 talking about from Monday through Friday?
18 Q. No. I mean, at any time -- is there any
19 time? I take off that restriction.
20 A. Saturday evening.
21 Q. Saturday evening.
22 A. Peace reigns on Saturday evening.
23 Q. About what time does peace begin to rain
24 down?
L.A. REPORTING (312) 419-9292
479
1 A. Well, I notice it after 3:00, 3:30.
2 Q. How does that feel?
3 A. It feels great. I frequently comment how
4 peaceful it is when we don't hear the noise.
5 Q. Do you notice any change in your mood when
6 the noise stops?
7 A. Yeah. You really feel a lot lighter.
8 Q. How long do you enjoy this reprieve from
9 the noise?
10 A. Through Sunday and Sunday evening.
11 Q. When does the noise from the LTD dock area
12 return?
13 A. Monday morning.
14 Q. Approximately, what time does it begin on
15 Monday morning during the fall of 1999?
16 A. Between 6:00 and 6:30.
17 Q. How late into the evening does that noise
18 continue?
19 A. I've heard it at 11:00 o'clock, between
20 11:00 and 12:00 I've heard the noise.
21 Q. Friday nights, do you hear noise?
22 A. Yes. Friday night is bad.
23 Q. And the noise you're hearing on Friday
24 nights that you described as bad, that's noise
L.A. REPORTING (312) 419-9292
480
1 from LTD's docks?
2 A. Yes.
3 Q. When you hear the noise from LTD's dock on
4 Friday night during the fall of 1999, what kind of
5 mood are you in?
6 MR. KOLAR: Objection as to mood.
7 HEARING OFFICER KNITTLE: I've been
8 looking into that. I'm going to overrule that.
9 My main reason is Section 23 talks about emotional
10 health and well-being as being one of the primary
11 purposes for having the noise regulations in the
12 first place, but I would allow a continuing
13 objection to that if you'd like.
14 MR. KOLAR: Yes.
15 HEARING OFFICER KNITTLE: That will be so
16 noted for the record. If my cursory research
17 proves to be inaccurate, please feel free to file
18 something with the Board. They would consider
19 that.
20 BY MR. KAISER:
21 Q. Do you recall the question?
22 A. Yes. Yes, I do, and I think by Friday
23 night after the stresses of the week and having to
24 deal with the ongoing noise problem, knowing how
L.A. REPORTING (312) 419-9292
481
1 peaceful it can be on a Saturday night is very
2 frustrating.
3 Q. To what do you attribute that frustration?
4 A. To the fact that we can't get the noise to
5 stop. After four years of going through this, we
6 can't seem to make any headway.
7 Q. Are you aware that LTD has implemented
8 something called their good neighbor policy?
9 A. I've heard of that, but I don't know what
10 it is.
11 Q. Do you have an opinion as to whether LTD's
12 good neighbor policy, which they claim to have
13 implemented as early as the summer of 1997,
14 whether that good neighbor policy has resulted in
15 a reduction of noise from the LTD docks?
16 MR. KOLAR: Objection. She said I've
17 heard of the policy. I don't know what it is. So
18 she shouldn't be able to give an opinion as to
19 whether some policy she doesn't know about has
20 reduced noise.
21 HEARING OFFICER KNITTLE: Sustained. Go
22 ahead.
23 MR. KAISER: Well, if I may, we've heard
24 testimony in the record from Mr. Hara that LTD
L.A. REPORTING (312) 419-9292
482
1 implemented something that they've described a
2 group of protocols, operational protocols, that
3 they lumped together and called their good
4 neighbor policy.
5 Now, whether -- I'm placing before
6 Ms. Weber the fact that has been introduced at
7 hearing that LTD implemented a good neighbor
8 policy as early as July of 1997. I mean, I guess
9 I could ask the question in a different way, and
10 I'll do that.
11 BY MR. KAISER:
12 Q. Do you experience any difference in the
13 quality and intensity and frequency of noise from
14 LTD's dock area? Can you compare the sound from
15 LTD's dock activities now in November of 1999 with
16 the dock activities in the fall -- well, fall of
17 1997? Do you notice any appreciable difference?
18 A. The noise -- the noise still exists, and
19 the noise is still pervasive. There have been
20 changes in the noise over the years. This beeping
21 noise that we're hearing this year seems to be
22 different than noises we've heard in subsequent --
23 in prior years.
24 You can still identify noises with
L.A. REPORTING (312) 419-9292
483
1 certain activities. The air brake noise is still
2 the same. I haven't heard the booming or the
3 crashing of the doors, but you hear the trailer
4 when it releases. You still hear the diesel
5 noises, the engines. As the tractors move things
6 into position, you can still here the yard tractor
7 as it moves things around.
8 Q. And you hear all of those things while
9 you're in your home with your doors and windows
10 closed?
11 A. Yes.
12 (Complainants' Exhibit No. 41
13 marked for identification,
14 11-2-99.)
15 BY MR. KAISER:
16 Q. I'm showing you what I've marked for
17 purposes of identification as Complainants'
18 Exhibit 41. It's a one, two, three, four,
19 five-page document consisting of some handwritten
20 notes. I've within the hour received a copy of
21 these notes and tendered those to Mr. Kolar. I
22 want to show you that document and ask you do you
23 recognize it?
24 A. Yes. This is just some notes I made last
L.A. REPORTING (312) 419-9292
484
1 week.
2 MR. KOLAR: For the record, I would object
3 to this exhibit. During her deposition, I asked
4 her if she had made a log, and obviously she
5 hadn't made a log at that time. So I don't think
6 this is something that was timely produced. She
7 had three years to prepare a log, and I don't
8 think I should be or LTD should be surprised with
9 a log during the middle of the hearing.
10 HEARING OFFICER KNITTLE: Mr. Kaiser.
11 MR. KAISER: If I may. We're asking for
12 the Board to order LTD to build a $300,000 noise
13 wall among other things. We're asking for
14 injunctive relief. One of the things we're
15 required to demonstrate is that there's a current
16 ongoing need for relief.
17 This is not a case about past
18 violations. If it was just about past violations,
19 it might very well be mooted. We have the burden
20 of demonstrating to the Board that there are
21 current ongoing violations and that a technically
22 feasible and economically reasonable way of
23 reducing those and eliminating those violations is
24 by construction of a noise wall.
L.A. REPORTING (312) 419-9292
485
1 If we had rested and not brought in
2 any evidence beyond the date of Ms. Weber's
3 deposition, we would be unable to satisfy our
4 burden. The Board would be right to question
5 whether there is a current need as of the time of
6 hearing and a current need to order any remedy.
7 For those reasons, I think it's reasonable -- and
8 I think it's beyond reasonable. I think it's
9 important for the Board to have the best possible
10 understanding of what the current conditions are,
11 and towards that end, Ms. Weber created a log of
12 times on October 27th, 1999; October 28th, 1999;
13 and October 29th, 1999, chronicling when she heard
14 noise from LTD and what types of noise she heard.
15 This is the best possible evidence
16 the Board can have on which to base its decision.
17 For that reason, I'd ask the Board to accept this
18 into evidence.
19 HEARING OFFICER KNITTLE: Mr. Kolar.
20 MR. KOLAR: It's not an issue of whether
21 it's good evidence or not. It's an issue of
22 timeliness, and after I took each complainants'
23 deposition, I expected them probably that night to
24 start keeping a log until the hearing, and nobody
L.A. REPORTING (312) 419-9292
486
1 did that, and now suddenly last week apparently
2 Steve says oh, you better start keeping a log,
3 we'll need that for the hearing and boom here at
4 about 2:30 on Tuesday of the hearing for the first
5 time I get a log that Ms. Weber started keeping, I
6 guess, last Wednesday.
7 I think it's unfair to LTD and should
8 be barred because it's not a timely submission of
9 relevant evidence.
10 HEARING OFFICER KNITTLE: Mr. Kaiser, when
11 did you receive the log?
12 MR. KAISER: If Mr. Kolar got it at 2:30,
13 I received it at 2:25.
14 HEARING OFFICER KNITTLE: Did you know
15 that the log was being created prior to that
16 time?
17 MR. KAISER: I had asked that a log be
18 created, but I didn't know until Ms. Weber
19 appeared this afternoon and showed me the log
20 whether it had been.
21 HEARING OFFICER KNITTLE: And, Mr. Kolar,
22 I take it you didn't receive any amended discovery
23 responses or anything like that?
24 MR. KOLAR: Correct.
L.A. REPORTING (312) 419-9292
487
1 HEARING OFFICER KNITTLE: Mr. Kolar, were
2 you about to say something?
3 MR. KOLAR: I was going to say he also
4 gave me a log that Mr. Rosenstrock prepared during
5 the same time period. He gave that to me on
6 Friday at Paul Schomer's evidence dep, but he
7 didn't say anything like and oh, Leslie Weber
8 might be preparing a log as well.
9 HEARING OFFICER KNITTLE: Yeah. I'm going
10 to -- do you have a motion or an objection or what
11 here, Mr. Kolar?
12 MR. KOLAR: I've got a motion to bar the
13 use of Leslie Weber's log.
14 HEARING OFFICER KNITTLE: Okay. I'm going
15 to grant that motion. I'm not going to grant it
16 for Rosenstrock's since you did receive that at
17 least a little bit before the hearing if it comes
18 that he tries to submit that into evidence.
19 Both of you, since the ruling is
20 going one way for one and one way for the other
21 have -- you should take this up with the Board,
22 and I think it's a pretty close call and a lot of
23 times the Board likes to see this. You know our
24 evidentiary standards are lessened. However, I
L.A. REPORTING (312) 419-9292
488
1 think that in a discovery issue like this, I think
2 I'm going to disallow that.
3 MR. KAISER: As a document. I mean,
4 clearly Ms. Weber can testify as to what she
5 heard --
6 HEARING OFFICER KNITTLE: Granted.
7 MR. KAISER: -- on the 27th, 28th, and the
8 29th?
9 HEARING OFFICER KNITTLE: There is no
10 doubt she can testify to what she heard at any
11 time. I mean, that's within her realm of
12 knowledge, and it was also, I'm sure, the type of
13 thing that was disclosed to Mr. Kolar that she
14 would be testifying to.
15 MR. KOLAR: Right. I guess I would
16 request that he take his log back if he's going to
17 ask her questions.
18 HEARING OFFICER KNITTLE: Right. Well,
19 I'll keep it if it's been -- I take it you're
20 going to offer that at some point?
21 MR. KAISER: I will. I'll offer it now
22 and let you deny it on the record, and then at
23 least it will be part of the record. I'm moving
24 -- let me just lay the foundation so it's not a
L.A. REPORTING (312) 419-9292
489
1 foundation objection, it's a timeliness or
2 whatever the other basis is.
3 HEARING OFFICER KNITTLE: Sure. I'll
4 allow that.
5 BY MR. KAISER:
6 Q. Ms. Weber, I take it this document,
7 Complaints' Exhibit 41, these are your handwritten
8 notes?
9 A. Yes.
10 Q. And you made these notes -- well, for
11 instance, page one, 10-27-99 between 9:25 and
12 9:53, when did you make those notes?
13 A. I made them during that time that they're
14 stipulated in the notes.
15 Q. So as the event was occurring?
16 A. Yes.
17 Q. On 10-28 between 8:05 and 8:09, again,
18 were you making those contemporaneous with your
19 observations?
20 A. Yes.
21 Q. On 10-28 between 9:44 and 10:29 --
22 A. Yes.
23 Q. -- again, were those notes made
24 contemporaneously with your observations?
L.A. REPORTING (312) 419-9292
490
1 A. Yes.
2 Q. With respect to the notes made on 10-29
3 between 6:14 and 6:29, were those notes made
4 contemporaneously with your observations?
5 A. Yes.
6 MR. KAISER: I'd move for the admission
7 into evidence of Complainants' Exhibit 41.
8 HEARING OFFICER KNITTLE: Okay. And, Mr.
9 Kolar, you've already made your objections on the
10 record. Do you have anything further?
11 MR. KOLAR: I guess besides my objection
12 as to timeliness and foundation, I don't know
13 whether this is a.m. or p.m.
14 HEARING OFFICER KNITTLE: Can we clarify
15 that?
16 THE WITNESS: It was all p.m.
17 HEARING OFFICER KNITTLE: Okay.
18 MR. KOLAR: Including the last page or
19 October 29th, 6:14, 6:15?
20 THE WITNESS: Yes.
21 HEARING OFFICER KNITTLE: This document,
22 as we've already stated, will be denied for the
23 reasons previously stated, not because of lack of
24 foundation, but because of the fact that it wasn't
L.A. REPORTING (312) 419-9292
491
1 disclosed during discovery. I understand it's in
2 the record as, like, an offer of proof.
3 MR. KOLAR: Let's go back on because I
4 would have a few questions on this relating to an
5 offer of proof which I think would be relevant
6 beyond the issue of timeliness.
7 HEARING OFFICER KNITTLE: Yeah. Are you
8 offering this as an offer of proof?
9 MR. KAISER: I'm offering it into evidence
10 as a stand-alone document that I think the Board
11 should receive, and I understand that it's your
12 determination that you're not going to allow it
13 into the body of documents.
14 HEARING OFFICER KNITTLE: What I do is I
15 instruct the Board not to consider this particular
16 document.
17 MR. KAISER: But nevertheless, I think
18 it's important for it to be in the Board file as
19 offered.
20 HEARING OFFICER KNITTLE: It will be in
21 the Board file because if they don't agree with
22 me, which --
23 MR. KAISER: They'll look at it.
24 HEARING OFFICER KNITTLE: -- occasionally
L.A. REPORTING (312) 419-9292
492
1 happens, you know, they'll change their mind.
2 Generally, we don't allow questions about
3 something that wasn't accepted, but I'll allow you
4 to ask her certain questions about this if they're
5 foundational questions along the lines that Mr.
6 Kaiser has already asked, but if we ask too many
7 about it, we're going to get a fact where it's
8 essentially in anyway, and then I would consider
9 changing my ruling.
10 BY MR. KAISER:
11 Q. On October 27th, 1999, between the hours
12 of approximately 9:30 and 10:00 p.m., where were
13 you?
14 A. I was in my bedroom.
15 Q. What were you doing?
16 A. I was listening to the noise.
17 Q. What noise?
18 A. I was listening to the noise from the LTD
19 Commodities operation.
20 Q. What did you hear?
21 A. I heard a variety of noise, including
22 beeping sounds, air brakes, the whooshing noise of
23 the air brakes being released, thumping noises
24 that I associated with dropping trailers, and the
L.A. REPORTING (312) 419-9292
493
1 noise of diesel engines as they would move around
2 the facility or leave the facility onto Lakeside
3 Drive.
4 Q. And is your bedroom located on the first
5 or second floor of your home?
6 A. Second floor.
7 Q. And is it on the east or the west side of
8 your home?
9 A. It's in the back. So it faces the south.
10 It is closer to the east side of the house.
11 Q. Have you observed whether you can hear
12 noise from the LTD dock operations better on the
13 first floor or second floor of your home?
14 A. It really doesn't matter. Last year, I
15 kept a log of activities. I kept a pad of paper
16 and a pencil in our family room, and I would
17 frequently read in that room, and I would note
18 down the noise I would hear from that.
19 Q. And that was in your family room on the
20 first floor?
21 A. Correct.
22 Q. Now, on October 28th, 1999, between 8:05
23 p.m. and roughly 8:10 p.m., do you recall where
24 you were?
L.A. REPORTING (312) 419-9292
494
1 A. I was upstairs, again, in the same place
2 in my bedroom.
3 Q. What were you doing?
4 A. I was trying to read and got distracted.
5 HEARING OFFICER KNITTLE: Hold on.
6 (Brief pause.)
7 BY MR. KAISER:
8 Q. October 28th, 1999, 8:00 p.m., you're at
9 home and you're trying to read. What, if
10 anything, did you hear?
11 A. I would hear the noises and become
12 distracted.
13 Q. The noises meaning what noises?
14 A. The noises from the operations of the
15 facility at LTD.
16 Q. How long did that noise last?
17 A. Well, it would last all night. I have
18 other things I have to do. I have to get my kids
19 to bed and get all those kinds of things done. So
20 I don't -- can't afford to sit and listen to the
21 noise all night.
22 Q. Has it been your experience or has noise
23 from LTD's dock activities ever prior to October
24 28th, 1999, interfered with your ability to sit in
L.A. REPORTING (312) 419-9292
495
1 your home and read a book in comfort?
2 A. As I said, that's why I was keeping the
3 log last year because it would just frequently
4 become terribly annoying as you were trying to
5 relax.
6 Q. By any chance, did you bring a copy of the
7 previous log you maintained with you today?
8 A. No, I didn't, Steve.
9 Q. My apologies. I don't have that at my
10 fingerprints. I'm showing you what's previously
11 been marked for purposes of identification as
12 Complainants' Exhibit 34. It's a complaint --
13 well, take a look at that and tell me if you
14 recognize that.
15 A. This is the complaint that the Rotis filed
16 relative to noise and naming myself and Paul
17 Rosenstrock as well.
18 Q. Did you give Karen Roti permission to add
19 your name to that complaint?
20 A. Yes.
21 Q. Why did you feel it was necessary to file
22 a complaint against LTD Commodities with the
23 Pollution Control Board?
24 A. Because we weren't getting any relief in
L.A. REPORTING (312) 419-9292
496
1 the number of years that we had hoped to be able
2 to achieve it amicably.
3 Q. Is there any reason why you haven't
4 withdrawn the complaint and you've chosen to go
5 forward to hearing?
6 A. Because the noise hasn't stopped. I
7 don't -- there's nothing that leads me to believe
8 that it will desist.
9 MR. KAISER: Thank you. I have no further
10 questions.
11 HEARING OFFICER KNITTLE: Do you have
12 cross-examination?
13 MR. KOLAR: Yes. Thanks.
14 C R O S S - E X A M I N A T I O N
15 by Mr. Kolar
16 Q. How are you doing?
17 A. Fine.
18 Q. We met at your deposition?
19 A. Yes.
20 Q. Now, when you were looking at homes prior
21 to July 1988, you and your husband looked at,
22 like, five or six other lots before deciding to
23 buy this one, right?
24 A. We had looked at a number of other lots.
L.A. REPORTING (312) 419-9292
497
1 I don't recall exactly how many.
2 Q. Does five or six sound about right?
3 A. That sounds about right.
4 Q. And you looked in other areas of Lake
5 Forest, Long Grove, and possibly Libertyville?
6 A. Yes.
7 Q. And these other lots that you looked at,
8 didn't some of them have trees as well?
9 A. Yes.
10 Q. This wasn't the only lot available in Lake
11 County that had this wooded area that you liked;
12 is that correct?
13 A. That's correct.
14 Q. But this was the only lot that you looked
15 at that was adjacent to a commercial office
16 building, trucking operation, right?
17 A. It was the only one that, as I recall, we
18 knew there was an office building behind it. I
19 don't recall realizing there was a trucking
20 operation because at the time this structure as it
21 stands now didn't exist.
22 Q. Well, do you recall any of the other lots
23 that you looked at being adjacent to a warehouse
24 operation?
L.A. REPORTING (312) 419-9292
498
1 A. No.
2 Q. And nobody twisted your arm to buy this
3 lot versus one of the others that was not by an
4 office building and warehouse operation, right?
5 A. Correct.
6 Q. You visited the lot six to ten times
7 before you decided to purchase it, correct?
8 A. Something like that.
9 Q. And as you indicated, you were aware of
10 the office building before you made the decision
11 and went forward and actually purchased the lot,
12 right?
13 A. Yes.
14 Q. You were aware of what you thought was an
15 FMC building at the time, right?
16 A. Correct.
17 Q. And this was before you decided to
18 purchase the lot, correct?
19 A. Yes.
20 Q. And you knew at that time that FMC was a
21 manufacturer of large machinery?
22 A. Yes.
23 Q. So you knew at that time before you
24 purchased this lot that you were, if you bought
L.A. REPORTING (312) 419-9292
499
1 this lot, in your mind going to own a lot in
2 proximity to a manufacturer of large machinery,
3 right?
4 A. I didn't know that facility was going to
5 be manufacturing large equipment.
6 Q. But you knew -- at that time, you thought
7 it was owned by FMC?
8 A. Yes.
9 Q. And you knew FMC was a manufacturer of
10 large machinery?
11 A. Yes.
12 Q. But you didn't know one way or the other
13 if manufacturing occurred inside that building,
14 right?
15 A. I had been over there and hadn't seen any
16 activity that would lead me to believe that any
17 manufacturing was taking place at that facility.
18 Q. And before you decided to buy this vacant
19 lot, you and your husband discussed the impact
20 noise from these operations to the south might
21 have on the resale value of your home that you
22 were going to put on that lot, right?
23 A. Abutting a commercial property, yes, that
24 we did discuss.
L.A. REPORTING (312) 419-9292
500
1 Q. Specifically -- before you bought your
2 lot, your vacant lot, you specifically discussed
3 with your husband whether noise from the south
4 would impact your ability to resell your lot,
5 right?
6 A. Probably more significantly what we were
7 considering was the fact that we had a parking lot
8 behind it.
9 MR. KOLAR: I'll object and ask that be
10 stricken as nonresponsive. I'm asking her about a
11 conversation --
12 MR. KAISER: How was that nonresponsive?
13 MR. KOLAR: I'm asking her if she had this
14 conversation with her husband.
15 HEARING OFFICER KNITTLE: Mr. Kaiser, do
16 you have anything further?
17 MR. KAISER: It just strikes me that while
18 that's an appropriate objection for a question,
19 the answer hit my ear as exactly responsive to his
20 question.
21 HEARING OFFICER KNITTLE: I'm going to not
22 grant that motion. I think she was at least
23 attempting to respond to the question. I will
24 grant you that it wasn't the -- she was expanding
L.A. REPORTING (312) 419-9292
501
1 a little bit. Were you looking for a yes or no
2 answer?
3 MR. KOLAR: Yeah, and I don't think I got
4 it.
5 HEARING OFFICER KNITTLE: You did not get
6 a yes or a no answer, and I'd allow you to reask
7 the question.
8 BY MR. KOLAR:
9 Q. The question is before you and your
10 husband bought this vacant lot in July 1988, did
11 you and your husband discuss if noise coming from
12 the south would impact on the resale value of the
13 house you were going to put on that lot? Yes or
14 no?
15 A. Yes.
16 Q. And then you and your husband went ahead
17 and bought the lot, right?
18 A. Yes.
19 Q. You made no investigation as to what
20 exactly was -- what exact type of business was
21 happening inside that warehouse before buying the
22 lot, right?
23 A. Correct.
24 Q. So before you bought this lot, you had
L.A. REPORTING (312) 419-9292
502
1 some expectation in your mind that there could be
2 noise that would impact your use of your
3 residential lot, right?
4 A. Can you ask that question again, please?
5 Q. Before you made the decision with your
6 husband to buy this lot, you already had in your
7 mind an expectation that you might be impacted by
8 noise coming from the south, right?
9 A. Yes.
10 Q. I think we have a mistake regarding
11 Complainants' Exhibit 37. I could be wrong, but
12 let's check. On Exhibit 89, your house is, like,
13 directly south of this roadway that goes from
14 Wedgewood to the northwest; is that accurate?
15 This is your house?
16 A. Yes.
17 MR. KAISER: And if you need to get up --
18 HEARING OFFICER KNITTLE: Yeah. I was
19 going to say if you want to get closer, Ms.
20 Weber.
21 MR. KAISER: -- you know, don't hesitate.
22 BY THE WITNESS:
23 A. If this is Oak Knoll -- no. This goes
24 nowhere. This is not a road.
L.A. REPORTING (312) 419-9292
503
1 HEARING OFFICER KNITTLE: When she's
2 finished, Mr. Kolar, could you make it for the
3 record?
4 MR. KOLAR: Sure.
5 BY THE WITNESS:
6 A. There is a driveway that goes to a house
7 that used to exist here that was torn down.
8 BY MR. KOLAR:
9 Q. For the record, the house directly --
10 A. That's the Roti's.
11 Q. Let me finish so the record is clear.
12 Okay?
13 HEARING OFFICER KNITTLE: Ms. Weber, I
14 don't want you to be offended, but there's nobody
15 here from the Board. So we have to make sure that
16 they can understand when they're reading this.
17 BY MR. KOLAR:
18 Q. They're not going to understand when you
19 say here or there. You can appreciate that.
20 A. Well, I will. I certainly do try to
21 appreciate it, but just so maybe we take it off
22 the record so that I can clarify it.
23 HEARING OFFICER KNITTLE: We can't take
24 anything off the record at the moment.
L.A. REPORTING (312) 419-9292
504
1 THE WITNESS: All right. Then however we
2 have to proceed.
3 BY MR. KOLAR:
4 Q. How about point to me on Exhibit 89 your
5 house.
6 A. You have me confused. I have to orient
7 myself. I'm sorry. This is our house here
8 (indicating).
9 Q. Take this black pen and circle that and
10 write above it maybe on the street Weber, please.
11 Circle the whole house.
12 A. (Witness complied.)
13 Q. Thanks.
14 MR. KOLAR: Now, Exhibit 37, that sketch,
15 Steve.
16 MR. KAISER: Yeah.
17 BY MR. KOLAR:
18 Q. Now, on the original of Exhibit 37, you
19 have, if I'm correct, you have put your name or
20 Weber residence to the house to the right of the
21 one you circled on the aerial, Exhibit 89, am I
22 correct?
23 A. If I'm reading this correctly, there are
24 three homes that are depicted here, and we are the
L.A. REPORTING (312) 419-9292
505
1 one to the right most of the drawing.
2 Q. Okay. Well, regardless, you're confident
3 that the one you circled on Exhibit 89 is your
4 home, right?
5 A. Yes.
6 Q. Your home was not in existence in 1987,
7 correct?
8 A. That's correct.
9 Q. It was not in existence in March 1988,
10 right?
11 A. Correct.
12 Q. 1992 is when it was finished, and you
13 moved in in January 1992?
14 A. That is correct.
15 Q. Let me put up here Respondent's Exhibit
16 88, which is -- again, this is a March 27th, 1988,
17 aerial of the same area.
18 Can you step down here and take a
19 look, Ms. Weber? Do you see on Exhibit 88,
20 Respondent's, the LTD building?
21 A. Yes.
22 Q. And this you recognize by the roof before
23 the '94 expansion to the south?
24 A. From what I can recognize.
L.A. REPORTING (312) 419-9292
506
1 Q. Okay. And your home is not shown on this
2 aerial because it wasn't built yet, right?
3 A. Correct.
4 Q. You would agree that the trees here is
5 where you eventually built your home?
6 A. Yes.
7 Q. So if I -- can you circle those trees and
8 where you believe your lot to be and where your
9 home now exists? Why don't you write Weber.
10 A. (Witness complied.)
11 Q. All right. So all of the LTD truck docks
12 were in existence before you purchased your lot in
13 July 1988, right?
14 A. I did not go over there. So I can't say
15 whether they -- where the docks resided.
16 Q. You would agree, though, that Exhibit 88
17 truly and accurately shows the north end of the
18 original LTD warehouse from the top?
19 A. Yes.
20 Q. Then you and your husband held your lot
21 for three years until you built up enough capital
22 to build your home in probably, what, '91 and then
23 moved in '92?
24 A. Yes.
L.A. REPORTING (312) 419-9292
507
1 Q. And this catalogue, Complainants' Exhibit
2 2, you got this at the Quill Company, right?
3 A. Yes.
4 Q. And you gave it to Mr. Kaiser?
5 A. Yes.
6 Q. The Quill Company is a business?
7 A. Yes.
8 Q. LTD is a business?
9 A. Yes.
10 Q. In fact, I guess, what did it say on the
11 mailing label that was ripped off?
12 A. I don't recall.
13 Q. Now, you also knew of the existence of
14 I-294, the tollway, before you bought your lot in
15 July 1988, correct?
16 A. Yes.
17 Q. And before you decided to purchase your
18 lot, you could hear tollway traffic in the
19 vicinity of your lot, right?
20 A. Yes.
21 Q. And even -- I mean, today the tollway
22 produces a constant buzz of noise at your property
23 on certain days, right?
24 A. Yes.
L.A. REPORTING (312) 419-9292
508
1 Q. And when the wind blows from the west to
2 the east towards your lot, you could hear it more
3 so than if the wind is blowing some other
4 direction?
5 A. Yes.
6 Q. Would you agree that you can hear the
7 tollway louder -- Strike that.
8 Would you agree that the tollway is
9 louder on days when the pavement on the tollway is
10 wet?
11 A. I cannot tell that.
12 Q. You could hear that tollway noise, that
13 constant buzz, on your property all year long,
14 right?
15 A. Yes.
16 Q. So when LTD is in its down season and you
17 don't hear LTD, you can still hear the tollway
18 noise, right?
19 A. I can hear the tollway noise when I'm
20 outside during the seasons when LTD is not in full
21 swing.
22 Q. Well, in fact, when it's quiet at your
23 home on a Saturday evening and you're outside, you
24 can hear the tollway, right?
L.A. REPORTING (312) 419-9292
509
1 A. At times when the wind is blowing from
2 that direction.
3 Q. You can hear it on Sundays when it's quiet
4 at LTD, right?
5 A. Yes.
6 Q. Have you ever been crabby or in a bad mood
7 on a Monday at work?
8 A. Uh-huh, yes.
9 Q. Okay. But you get a good night's sleep on
10 Sunday because LTD is not in operation, right?
11 A. Sometimes I do and sometimes I don't.
12 Q. So sometimes if you don't get a good
13 night's sleep on Sunday night it's been for
14 reasons completely unrelated to LTD?
15 A. Yes.
16 Q. Because you told us LTD does not interfere
17 at all with your sleep on Saturday nights and
18 Sunday nights, right?
19 A. Correct.
20 Q. And that's all year long, right?
21 A. That is correct.
22 Q. Have you ever made a written report to
23 anybody at the Quill Company that noise from LTD
24 affects your ability to work at the Quill Company?
L.A. REPORTING (312) 419-9292
510
1 A. No.
2 Q. Have you ever orally said to anybody at
3 Quill Company I'm sorry, I'm having a bad day, LTD
4 was really noisy last night?
5 A. I don't know.
6 Q. Have you ever seen a doctor for any sort
7 of emotional problems or physical illness relating
8 to noise from LTD?
9 A. No.
10 Q. In Complainants' Exhibit 8, which I also
11 marked as Respondent's Exhibit 19, this, you
12 testified, is a letter that you sent on or about
13 January 20th, 1997, to David Lothspeich, right?
14 A. Yes.
15 Q. Okay. And the only noise from LTD that
16 you identified in this January 20th letter is a
17 booming sound from trailer doors slamming against
18 a trailer, right? Take your time and look at it.
19 MR. KAISER: Objection. The letter speaks
20 for itself.
21 HEARING OFFICER KNITTLE: Mr. Kolar.
22 MR. KOLAR: No response.
23 HEARING OFFICER KNITTLE: I'm going to let
24 her testify. We've been going over these letters
L.A. REPORTING (312) 419-9292
511
1 in pretty significant detail. So the objection is
2 overruled.
3 MR. KOLAR: Let me actually withdraw that,
4 and I'll ask a couple of questions --
5 HEARING OFFICER KNITTLE: Ma'am, he's
6 going to withdraw that question.
7 THE WITNESS: Okay.
8 HEARING OFFICER KNITTLE: So do you still
9 want her to review that document?
10 MR. KOLAR: Yes. She can just hold it
11 there because I'll come back to that.
12 BY MR. KOLAR:
13 Q. So in November 1996, you heard what you, I
14 guess, later found out you thought was a booming
15 noise from trailer doors slamming against trailers
16 at LTD, right?
17 A. Yes.
18 Q. And in that same time period, you heard
19 revving of engines, right?
20 A. Yes.
21 Q. Would you hear air brake noise at that
22 time as well?
23 A. I believe so. I wasn't as well versed in
24 some of the activities at that time.
L.A. REPORTING (312) 419-9292
512
1 Q. But after hearing noise, eventually you
2 wrote this January 30th letter to David
3 Lothspeich, right?
4 A. Yes.
5 Q. And the only noise referred to in this
6 January 30th, 1997, letter is this booming of
7 trailer doors against the trailers, right?
8 A. It also talks about a low frequency
9 machine noise of motorized equipment.
10 Q. But it doesn't say revving of engines?
11 A. No. It's not as specific.
12 Q. Okay. You also say in this letter that I
13 will assure you that this severely impacted my
14 sleep and that of my children, right?
15 A. Yes.
16 Q. And you have two sons, one 16 and one
17 nine?
18 A. Yes.
19 Q. What's the name of the son who's nine?
20 A. Christopher.
21 Q. And he's not affected at all by noises
22 from LTD trucking operations, right?
23 A. Correct.
24 Q. As we can see on these aerials, your lot
L.A. REPORTING (312) 419-9292
513
1 is adjacent to the office building lot, right?
2 A. Yes.
3 Q. No part of it abuts the LTD property,
4 right?
5 A. Correct.
6 Q. If I heard your testimony correctly, you
7 believe that you hear sounds from LTD -- Strike
8 that.
9 You believe you hear sounds from
10 tractor-trailers pulling out of the LTD staging
11 area and going onto Lakeside Drive to leave the
12 property?
13 A. Yes.
14 Q. And that's something that you've heard for
15 how long?
16 A. Since 1996.
17 Q. Okay. Do you think also when you hear
18 noise that those are trailers coming north down
19 Lakeside Drive and entering the LTD truck staging
20 area?
21 A. From my perception, the noise of them
22 exiting is more prevalent than that of their going
23 in unless they're revving the engines when they
24 enter the dock area.
L.A. REPORTING (312) 419-9292
514
1 Q. So you hear noise when a truck is
2 egressing from the LTD truck staging area onto
3 Lakeside Drive, right?
4 A. Yes.
5 Q. And you understand Lakeside Drive is a
6 public road?
7 A. Yes.
8 Q. I heard in your direct examination that
9 you said noise from LTD occurs at all hours of the
10 night?
11 A. It occurs late into the night.
12 Q. And so if you said all hours of the night,
13 that was mistaken? It's not all hours of the
14 night?
15 A. Certainly, I've heard it at 2:00 o'clock
16 in the morning.
17 Q. Have you heard it at 3:00 o'clock in the
18 morning?
19 A. I believe so during the 1996 time frame.
20 Q. How about in the last three years, have
21 you heard LTD at 3:30 in the morning?
22 A. I have not heard LTD at 3:30 in the
23 morning this year.
24 Q. Well, last year, did you hear LTD at 3:30
L.A. REPORTING (312) 419-9292
515
1 in the morning?
2 A. I cannot recall.
3 Q. What about 1997, did you hear LTD at 3:30
4 in the morning?
5 A. I don't remember.
6 Q. In fact, the noise that you believe comes
7 from LTD does not keep you up all night, right?
8 A. It does not keep me up all night?
9 Q. True?
10 A. Correct.
11 Q. And the back-up beeper noise you hear does
12 not wake you up very often, correct?
13 A. Correct.
14 Q. And you acknowledged here that there's an
15 enclosed garbage facility, garbage area at the
16 northwest corner of the office building parking
17 lot, right?
18 A. Yes. I know that used to be there. I
19 don't know if it's still there or not.
20 Q. Well, have you recently looked out your
21 window at a wooden fenced in area directly south
22 of your home?
23 A. I can't see it from my home.
24 Q. Let me show you Respondent's Exhibit 55, a
L.A. REPORTING (312) 419-9292
516
1 photograph. Do you see that wooden fence-like
2 structure --
3 A. Yes.
4 Q. -- in the background?
5 A. Uh-huh.
6 Q. Is that fenced in area directly south of
7 your home on the corporate office building parking
8 lot?
9 A. It's southwest of my home.
10 Q. So that would be in the northwest corner
11 of the office building parking lot, right?
12 A. Yes.
13 Q. And that exists today, correct?
14 A. Again, I believe so.
15 Q. And that's where you have heard back-up
16 warning beepers from garbage trucks, right?
17 A. Yes.
18 Q. So you would admit that at times you are
19 disturbed at your home by back-up warning beepers
20 from garbage trucks on the office building parking
21 lot?
22 A. Yes.
23 Q. And that garbage truck when it's making
24 that noise is a lot closer to your house than the
L.A. REPORTING (312) 419-9292
517
1 yard tractor is when it's operating in the staging
2 area, right?
3 A. It is closer, yes.
4 Q. Does that noise annoy you like the back-up
5 beeper on the yard tractor?
6 A. It does annoy me and has woken me up.
7 Q. Okay. What time did it wake you up?
8 A. I have heard it a couple years ago
9 probably around 5:00, 5:30 in the morning. I
10 think in the last year, they changed their
11 schedule and now come later, closer to 6:00, 6:30.
12 Q. So the beeper itself woke you up?
13 A. The beeper and the noise of them putting
14 the Dumpster back down.
15 Q. So it's like a big banging noise --
16 A. Yes.
17 Q. -- of metal on asphalt?
18 A. On pavement.
19 Q. Is there also a noise made when the
20 Dumpster is lifted into the air and tipped upside
21 down?
22 A. Yes.
23 Q. That's a noise of metal clanging against
24 metal?
L.A. REPORTING (312) 419-9292
518
1 A. Yes.
2 Q. Have you made any complaints to Corporate
3 100 about its -- when its garbage is picked up?
4 A. No.
5 Q. So is that something that you could hear
6 at your property every day, the garbage truck
7 coming to Corporate 100 to pick up garbage?
8 A. I didn't hear it every day, but I have
9 heard it.
10 Q. How many times have you heard it in the
11 last three years?
12 A. Maybe 100.
13 Q. And is it a loud, piercing, annoying
14 sound?
15 A. I wouldn't have described it as that.
16 It's annoying and it's loud.
17 Q. Your house does not shake from LTD truck
18 operations, true?
19 A. True.
20 Q. Horns from the LTD trucking operations do
21 not wake you up, true?
22 A. True.
23 Q. And the time when you went to the LTD
24 property and saw the J.B. Hunt tractor-trailers,
L.A. REPORTING (312) 419-9292
519
1 were they in the auto parking lot on the far north
2 end of the LTD property?
3 A. No. They were down along the docks.
4 Q. In the staging area?
5 A. Yes.
6 Q. Well, have there been times when you saw
7 tractor-trailers maybe a couple years ago up in
8 the auto parking lot?
9 A. Not that I've noticed.
10 Q. But you would acknowledge that that auto
11 parking lot is higher than the truck staging area?
12 A. Yes.
13 Q. So if trucks were up there, that would
14 probably annoy you more than if they were down in
15 the truck staging area?
16 A. I can't answer that.
17 Q. And the noise from LTD's yard tractor is
18 better now in terms of it doesn't bother you as
19 much as it did in 1997, true?
20 A. That is correct.
21 Q. You've also woken up at your home because
22 of sirens from ambulances, right?
23 A. Yes.
24 Q. You do not believe LTD has decreased the
L.A. REPORTING (312) 419-9292
520
1 value of your home, true?
2 A. True.
3 MR. KAISER: If I may somewhat belatedly
4 just ask for a clarification. When you say value,
5 are you talking about the fair market value as in
6 resale value, not values -- nonmonetary values
7 that people might attach to their home?
8 MR. KOLAR: Fair market value.
9 BY MR. KOLAR:
10 Q. You would agree that LTD trucking
11 operations have not decreased the fair market
12 value of your home? That's your opinion, right?
13 A. Yes.
14 Q. Your husband, Henry, he's on the road
15 three nights a week, correct?
16 A. He was earlier on. He's not anymore.
17 Q. Is he out on business during the week?
18 A. No, not anymore.
19 Q. Now, this Complainants' Exhibit 41, the
20 log starting last week, did Mr. Kaiser ask you at
21 that meeting to prepare a log?
22 A. He asked if we had been maintaining any
23 logs and suggested that we keep some information.
24 Q. He asked you if you had been maintaining
L.A. REPORTING (312) 419-9292
521
1 any logs and you and your husband said no?
2 A. Correct.
3 Q. And then you started to prepare a log,
4 right?
5 A. Yes.
6 Q. At his request?
7 A. Yes.
8 Q. And you testified about the noise you
9 heard beginning last week on the 27th, 28th, and
10 29th inside your home.
11 Were your windows open or shut at
12 that time?
13 A. I think they were slightly open.
14 Q. And at that time, you were making a
15 conscious effort to listen for noise from LTD
16 Commodities, right?
17 A. Well, not at the time when I was trying to
18 read.
19 Q. But then after that, you put down your
20 book and you would made a conscious effort to
21 listen for noise from LTD Commodities, right?
22 A. I may -- yes.
23 Q. Now, you said you were at a meeting in
24 Bannockburn in early -- like January 1997?
L.A. REPORTING (312) 419-9292
522
1 A. Yes. I attended the hearing for the town
2 meeting. I don't know what they called it.
3 Q. Was -- were the Rotis there?
4 A. The Rotis did attend that meeting.
5 Q. Was Mr. Kaufman there?
6 A. You know, I don't know. I got there
7 late. I had talked to Karen after the meeting and
8 compared notes.
9 Q. Was a Victor Fillipini there, attorney for
10 Bannockburn?
11 A. I don't recall the attendees.
12 Q. You don't know if Mr. Hara was at that
13 meeting or not?
14 A. No, I don't.
15 Q. You never made a log of the times when you
16 felt that you were moody or short-tempered because
17 of noise from LTD, correct?
18 A. No. I didn't make a log of moodiness.
19 Q. You did make a log of moodiness?
20 A. I did not make a log of moodiness. I made
21 a log of when I heard the noises.
22 Q. When did you meet with Mr. Kaiser at your
23 home? What day was that?
24 A. I believe it was last Wednesday.
L.A. REPORTING (312) 419-9292
523
1 Q. Now, your oldest son, he's 16?
2 A. Yes. He's 16 now.
3 Q. Does having two boys ever cause you to be
4 moody or short-tempered? I mean, I have two
5 boys. I'm just curious. Have the two boys ever
6 caused you to be moody or short-tempered when you
7 come home from work?
8 A. When I come home from work, no.
9 Q. But after a long day of work, do the
10 activities of your sons, boys being boys, does
11 that ever cause you to be moody and/or
12 short-tempered?
13 A. I get short-tempered at them. So I guess
14 to answer your question, it would be yes.
15 Q. Now, recently, as you see here on Exhibit
16 89, another office building was completed to the
17 southeast of the office building directly south of
18 your house, right?
19 A. Yes.
20 Q. When did the construction activities for
21 that office building cease?
22 A. I believe it was late summer of '99.
23 Q. And when did construction activities begin
24 at that site?
L.A. REPORTING (312) 419-9292
524
1 A. I don't recall, but I think it was quite
2 early in 1999. It may have actually begun last
3 year. I don't exactly recall.
4 Q. So either '88 or early --
5 A. '98.
6 Q. Excuse me. Either 1998 or early '99
7 through late summer '99, right?
8 A. Yes, uh-huh.
9 Q. And when that office building was under
10 construction to your southeast, you could hear
11 construction noises on your property, right?
12 A. Yes.
13 Q. And those noises also bothered you in
14 enjoying your property, right?
15 A. I don't recall that it bothered me from
16 enjoying my property that significantly.
17 Q. Well, you could hear those construction
18 noises on your property, correct?
19 A. Yes.
20 Q. So I guess the noises you could hear on
21 your property at one time or another would be the
22 tollway, you claim LTD, the garbage truck,
23 construction noises, and ambulances, right?
24 A. Yes.
L.A. REPORTING (312) 419-9292
525
1 Q. Has your husband prepared any sort of log?
2 A. Not that I know of.
3 Q. To your knowledge, have the Rotis prepared
4 any sort of log of noises in the last week or so?
5 A. I don't know.
6 Q. Did you meet with Mr. Kaiser with the
7 Rotis as well and Mr. Rosenstrock all at one time?
8 A. No.
9 Q. Just finally, if you're asleep in your
10 house and you are suddenly woken up, you would
11 agree that you don't know what was the actual
12 noise that woke you up?
13 A. Correct.
14 MR. KOLAR: I think I'm done. I just want
15 to find my handwritten -- typewritten notes.
16 BY MR. KOLAR:
17 Q. Have you ever called LTD and tried to have
18 any of its products delivered to your home?
19 A. No.
20 Q. And your son Christopher, you consider him
21 a normal nine-year-old boy?
22 A. Yes.
23 MR. KOLAR: I don't have anything else.
24 HEARING OFFICER KNITTLE: Mr. Kaiser,
L.A. REPORTING (312) 419-9292
526
1 redirect?
2 R E D I R E C T E X A M I N A T I O N
3 by Mr. Kaiser
4 Q. With respect to one of Mr. Kolar's last
5 questions about your experience of being awakened
6 during the night, and it was almost a
7 philosophical or metaphysical question, could you
8 determine what caused you to wake up in the middle
9 of the night. Do you recall that question?
10 A. Yes, I do.
11 Q. Are you able to form opinions after being
12 awakened during the night based on the noise that
13 you're hearing in the environment as to what most
14 likely woke you up?
15 MR. KOLAR: Objection, calls for
16 speculation. I think he could ask what noises did
17 you hear after you woke up, but I don't think she
18 can speculate as to what noise woke her up when
19 she was sleeping at the time.
20 MR. KAISER: Did she form an opinion and
21 the basis of her opinion is the noises in the
22 environment at that time and, again, it goes to
23 weight, not admissibility.
24 HEARING OFFICER KNITTLE: Well, I don't --
L.A. REPORTING (312) 419-9292
527
1 it is fairly metaphysical. I would sustain the
2 objection. What I'd like you to do is her -- you
3 know, I think you could ask her if there were
4 noises that occurred afterwards, and then you
5 could get back to your question.
6 MR. KAISER: I'll do it that way.
7 BY MR. KAISER:
8 Q. When you've been awakened during the
9 middle of the night, I take it in the event where
10 sirens awakened you, then the noise in the
11 environment is the siren proceeding down the
12 street or up the street and you draw a conclusion
13 that the siren woke me up; is that right?
14 A. Yes.
15 Q. And with respect to other occasions when
16 you haven't been awakened by a siren or an
17 emergency vehicle, have you been able to form the
18 opinion concerning -- well, what other noise did
19 you hear in the immediate environment?
20 A. I'm sorry. Can you restate that?
21 Q. I can understand that.
22 MR. KAISER: I mean, here's my problem
23 with the objection Mr. Kolar is making. He
24 basically asked the question and said well, you
L.A. REPORTING (312) 419-9292
528
1 could hear the garbage truck woke you up, right,
2 and so he admits to the possibility that you can
3 determine what wakes you up as long as it's a
4 siren or a garbage truck, but you can't determine
5 what wakes you up if it's an LTD noise.
6 I mean, that's really the logic of
7 his cross-examination, and you can't have it both
8 ways. Either you can hear the garbage truck woke
9 you up, you can hear the siren woke you up, you
10 can hear LTD trucks woke you up, or you can't hear
11 any of them.
12 HEARING OFFICER KNITTLE: I don't -- go
13 ahead, Mr. Kolar.
14 MR. KOLAR: My objection is to her giving
15 an opinion as to the noise that woke her up. I
16 said he can ask her what noises did she hear
17 immediately after she woke up, and then he could
18 argue in his trial brief that well, it had to be
19 LTD truck noises because that's the noise she
20 heard immediately afterwards.
21 HEARING OFFICER KNITTLE: That wasn't the
22 exact question that I thought I was sustaining an
23 objection to. I would let you ask her if she had
24 an opinion as to what woke her up. That's not the
L.A. REPORTING (312) 419-9292
529
1 same thing as whether or not she heard what woke
2 her up.
3 MR. KAISER: Thank you.
4 BY MR. KAISER:
5 Q. You've testified that you've been awakened
6 from your sleep. Do you recall that testimony?
7 A. Yes.
8 Q. And as I understood your testimony, you
9 stated that on occasion you've been awakened
10 during your sleep by sirens or ambulances.
11 Was that your testimony?
12 A. Yes.
13 Q. And I thought I also heard you tell Mr.
14 Kolar that on one or more occasions you were
15 awakened during your sleep by that garbage truck
16 picking up garbage at Corporate 100?
17 A. Yes.
18 Q. Now, as I understood your direct
19 testimony, you've also been awakened by noises
20 that you've attributed to LTD's operations; is
21 that true?
22 A. Yes.
23 Q. And the follow-up question then is what
24 was the basis for your conclusion that it was
L.A. REPORTING (312) 419-9292
530
1 noise from LTD's docks that woke you up?
2 A. Because just as I did when I was awakened
3 by the siren, at that time I got up and got out of
4 bed and saw some kind of red light flashing that
5 indicated to me there was some kind of emergency
6 vehicle.
7 On situations where I would get woken
8 up from my sleep, I've actually gotten into my car
9 and tried to find the source of the noise that
10 corroborates with the noise that seemed to have
11 woken me up.
12 Q. Okay. Now, you testified that the noise
13 does not bother your nine-year-old son
14 Christopher; is that right?
15 A. That is correct.
16 Q. Do you have an opinion based on your
17 observations of your son Scott whether noise from
18 LTD's operations have ever disturbed him?
19 A. In 1996, I know the noise from LTD
20 bothered Scott because we talked about it.
21 MR. KOLAR: Objection, hearsay. I'd ask
22 that that be stricken.
23 HEARING OFFICER KNITTLE: Mr. Kaiser.
24 MR. KAISER: I asked her whether she had
L.A. REPORTING (312) 419-9292
531
1 an opinion whether noise bothered her son Scott.
2 She said yes. Now, the basis may be hearsay, but
3 I think people are entitled, especially mothers in
4 relation to their son, are entitled to take
5 information that they receive from their son and
6 that that's inherently in this instance reliable,
7 and, furthermore, it's not hearsay because it
8 doesn't go to the truth of the matter asserted.
9 It goes to foundation for Ms. Weber's testimony
10 and opinion. So in that way, it's an exception to
11 the hearsay rule.
12 HEARING OFFICER KNITTLE: Anything else?
13 MR. KOLAR: No.
14 HEARING OFFICER KNITTLE: I'll overrule
15 the objection, and if there was a motion to
16 strike, not granted.
17 BY MR. KAISER:
18 Q. Now, Mr. Kolar asked you on
19 cross-examination last week October 27th, 28th,
20 and 29th when you maintained the noise log, he
21 asked were you consciously listening to hear LTD's
22 noise.
23 Do you recall that question?
24 A. Yes.
L.A. REPORTING (312) 419-9292
532
1 Q. Must you be consciously listening in order
2 to hear noise from LTD's dock activities in your
3 home with your windows and doors shut?
4 A. No.
5 Q. Mr. Kolar asked you do you believe that
6 LTD's dock operations and the noise that those
7 generate do you have an opinion whether that noise
8 has decreased the fair market value of your home.
9 Do you remember that question?
10 A. Yes.
11 Q. And your testimony was no, you don't think
12 it's affected the market value of your home,
13 correct?
14 A. Yes.
15 Q. Has the noise from LTD's dock operations
16 decreased any of the other values other than fair
17 market and mercantile values, the values that we
18 attribute with our homes, have they been decreased
19 in any way?
20 MR. KOLAR: Objection, leading. It's
21 vague. I don't know -- I don't know what
22 mercantile values means. There's fair market
23 value. I don't know of any other value.
24 MR. KAISER: Joe, I know you better than
L.A. REPORTING (312) 419-9292
533
1 that, and I know you know many other values than
2 fair market value, and I'd be happy to explain
3 what I'm -- clarify the question.
4 HEARING OFFICER KNITTLE: Please do.
5 BY MR. KAISER:
6 Q. What other values, other than just your
7 home is worth $500,000 or $600,000, does your home
8 mean something to you more than it's value on the
9 market?
10 A. My house has a value that is monetary,
11 what I can sell it for as a value, the land, what
12 I put into my home has a cost. The value of my
13 home is that which I make for my family. It's
14 that which my husband and I supply, and it's
15 something that is a haven and should provide a
16 sense of quietude and comfort and solace at the
17 end of a busy day or a busy week.
18 Q. Have those values that you just described
19 been affected by LTD's dock operations?
20 A. Yes, it has.
21 Q. In what way?
22 A. In a very overt way we cannot enjoy the
23 use of our decks after the August time frame. It
24 also just becomes intrusive in relation to some of
L.A. REPORTING (312) 419-9292
534
1 the quiet activities that we can enjoy inside the
2 home. As I mentioned, I kept a log last year as I
3 was sitting in the family room just trying to read
4 and would be disturbed by the noise as we're
5 trying to play a game, as we're trying to do quiet
6 activities, which we try to encourage inside the
7 house.
8 Q. Are quiet activities important to you and
9 your family?
10 A. Yes.
11 Q. Do you value peace and quite in your home?
12 A. I value piece an quite above many, many
13 things.
14 Q. What, if any, impact has LTD's dock
15 activities had on the peace and quiet of your
16 home?
17 A. From August through the end of December,
18 the peace and quiet is destroyed. Other than the
19 Saturday night, we have to bear the burden of the
20 continuous noise through the week.
21 MR. KAISER: Thank you. I have no further
22 questions.
23 HEARING OFFICER KNITTLE: Do we have any
24 recross?
L.A. REPORTING (312) 419-9292
535
1 MR. KOLAR: Just one area.
2 R E C R O S S - E X A M I N A T I O N
3 by Mr. Kolar
4 Q. When you and your husband before July 1988
5 discussed how noise from the south could impact on
6 the resale value of a home you were going to build
7 on that lot, at that time did you also discuss
8 whether that noise would impact on the solitude,
9 peace, and quiet value of your home?
10 A. Yes.
11 Q. So before purchasing your lot, you were
12 concerned that noise from the south might
13 interfere with the quiet enjoyment of your
14 residential property?
15 A. We were concerned that noise from the
16 highway could potentially impact our enjoyment.
17 Q. Well, it wasn't just the highway you were
18 concerned about. It was the commercial uses to
19 the south that you and your husband discussed,
20 right?
21 MR. KAISER: Objection, argumentative.
22 MR. KOLAR: It's cross-examination.
23 HEARING OFFICER KNITTLE: I'll let that
24 one stand. If you can answer that question, you
L.A. REPORTING (312) 419-9292
536
1 are directed to.
2 BY THE WITNESS:
3 A. It was the highway noise that we were
4 concerned with. It was the highway noise that we
5 explicitly discussed.
6 BY MR. KOLAR:
7 Q. Let me show you page 13 of your deposition
8 transcript.
9 Do you recall giving your deposition
10 at my office?
11 A. Yes, I do.
12 Q. And being placed under oath, do you recall
13 that?
14 A. Yes. Yes, I do.
15 Q. At the bottom of page 13; question, and
16 the LTD building, some part of it at least, was
17 already there, correct; answer, yes. There was a
18 facility there. I think it was FMC at the time;
19 question, did you and your husband have any
20 conversation regarding whether you should buy a
21 lot adjacent to the office building and near the
22 FMC building; answer, yes we did; question, what
23 was the discussion? Tell me what was said as best
24 as you can recall about that decision; answer, we
L.A. REPORTING (312) 419-9292
537
1 discussed the impact of noise of traffic, of
2 lights, and the potential resale issues; question,
3 these were issues you and your husband -- these
4 were issues your husband and you discussed in 1988
5 before deciding to buy the lot; answer, yes.
6 Am I correct? Did I read that
7 correctly?
8 A. Yes.
9 Q. So the discussion that your husband and
10 you had before buying the lot was not limited to
11 the tollway, right?
12 A. It was limited -- it was about the tollway
13 and the office building that was behind us.
14 Q. Okay. But at that time, you knew that
15 there was this FMC building?
16 A. Yes.
17 Q. So prior to deciding to buy this lot, you
18 knew that the tollway and the office building to
19 your south could create noise that interfered with
20 your solitude on your property?
21 A. We knew it could create noise and there
22 could be an impact from lights.
23 MR. KOLAR: Nothing else.
24 HEARING OFFICER KNITTLE: Do you have any
L.A. REPORTING (312) 419-9292
538
1 re-redirect?
2 MR. KAISER: Briefly.
3 FURTHER REDIRECT EXAMINATION
4 by Mr. Kaiser
5 Q. Can you describe for the Board the extent
6 to which the tollway noise has -- do you have an
7 opinion as to whether the tollway noise has
8 substantially and unreasonably interfered with the
9 use and enjoyment of your property?
10 MR. KOLAR: Objection, beyond the scope.
11 My question was limited to the conversation before
12 they brought their home -- before they bought
13 their lot in July 1988.
14 MR. KAISER: The implication of his
15 question was tollway noise is part and particle of
16 this problem.
17 HEARING OFFICER KNITTLE: Well, I'm going
18 to sustain that. You could ask him about -- you
19 could ask this witness about conversations she had
20 beforehand, but I do think that was strictly what
21 the questions were relating to.
22 BY MR. KAISER:
23 Q. Did you and your husband determine whether
24 noise from the tollway was acceptable to you? The
L.A. REPORTING (312) 419-9292
539
1 levels that you observed during your visits to the
2 site before you purchased the property, did you
3 make some determination that the levels you heard
4 would be acceptable?
5 A. We had discussed the level of noise from
6 the tollway and based on the wind direction
7 whether or not we felt it would impact how we
8 liked to use the property and the resale value of
9 our home and what the potential impact of that
10 would be, yes, and determined that it would not
11 adversely impact the resale value and that we
12 could live with it.
13 Q. And you view this complaint and this
14 enforcement, citizens enforcement action, as
15 somehow misplaced and confusing tollway noise with
16 LTD noise, or is this an action in your mind
17 against LTD and its noise?
18 MR. KOLAR: Objection, beyond the scope of
19 my cross.
20 HEARING OFFICER KNITTLE: I'm going to
21 sustain that as well. This is re-redirect.
22 MR. KAISER: All right. That's fine. No
23 further questions.
24 HEARING OFFICER KNITTLE: Do we have a
L.A. REPORTING (312) 419-9292
540
1 re-re-recross?
2 MR. KOLAR: No.
3 HEARING OFFICER KNITTLE: I might have one
4 too many res in there. Ma'am, you can step down.
5 Thank you for your time.
6 MR. KAISER: We have 13 minutes. We have
7 Henry Weber. Do we want to get started?
8 HEARING OFFICER KNITTLE: Let's go off
9 please.
10 (Discussion had
11 off the record.)
12 (Whereupon, these were all
13 the proceedings held in
14 the above-entitled matter.)
15
16
17
18
19
20
21
22
23
24
L.A. REPORTING (312) 419-9292
541
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