State
of
Illinois
iF
LERK
CEVED
S
OFFICE
Pollution
Control
Board
r4OV
12
20118
100
W.
James
Randolph
R. Thompson
Street,
Suite
Center
11-500
PoIiut
STATE
OF
Control
ILLINOIS
Board
Chicago,
Illinois
60601
http://www.
ipcb.state.iI.us/
In
The
Matter
Of:
Anne
McDonagh
&
David
Fishbaum
1464
Linden
Avenue
Highland
Park,
IL
60035
Complainant(s),
V.
Richard
and
Amy Michelon
1474
Linden
Avenue
Highland
Park
IL 60035
Respondent(s)
)
NOTICE
OF
FILINGTO:
Eliot
Wiczer,
Wiczer
&
Zelmar,
500
Skokie
Valley
Road,
Suite
350
Northbrook
IL
60067
PLEASE
TAKE
NOTICE
THAT
ON
November
10,
2008, THE
UNDERSIGNED
MAILED
to
the
State of
Illinois
Pollution
Control
Board,
James R.
Thompson
Center,
100
W.
Randolph
Street,
Suite
11-500,
Chcago,
IL 60601,
a copy
of
Complainants’
Motion
to
Bar
Respondents’
Expert’s
Opinions,
a copy
of
wijich
is
)
)
)
)
)
)
)
)
)
)
)
PCB
2008
- 076
(For
Board
use
only)
and
served
upon
you.
CERTIFICATE
OF
SERVICE
I, Anne McDonagh,
do
state
that I
have
sent a
copy of
this
Filing
and
Response
to
be served
upon
the persons
named
above
by personally
der
iber 10,
2008.
COMPLAINANTS’
MOTION
TO BAR RESPONDENTS’
EXPERTS
OPINIONS
The
Complainants
in Case 2008-076,
Anne McDonagh
and David Fishbaum,
file this
request
to Bar
Respondents’ Expert
from offering
any opinions
in this case (or filing
an untimely
report)
due
to Respondents’
failure to comply
with
a
PCB Hearing
Officer
order to make their
expert
disclosures by
October 15, 2008.
Respondents’
unexplained and inexcusable
delay
effectively
denies
Complainants
adequate time for
depositions
and document preparation
that
the
parties have
been ordered
to complete
by
November
30, 2008.
BACKGROUND
Anne McDonagh
and
David Fishbaum,
owners
of
a residence in Highland
Park, Illinios,
filed
a Complaint
in April of
2008 alleging that the
three air
conditioners
of the Respondents,
Richard and
Amy
Michelon,
violated the State
of Illinois Noise
Code (ref: 35 Ill.
Adm.
Code
35, Subtitle
H.)
Acoustic Associates
(Complainants’
Expert)
report found:
a. Noise is 18
decibels
higher
than allowed in
Illinois
at
night
(Sec. 901.102b).
b. Prominent Discrete
tone
is
present, making noise
additional
10 decibels over limit
(Sec.
901.106)
c. “Acoustic
beating characteristic”
“exacerbates
the nuisance.”
[See Expert
Report,
Appendix
A]
Complainants’
Expert’s
Report was delivered
to
Respondents
with Complaint
on April
15,
2008.
Once PCB accepted
the case for hearing,
Respondents
specifically requested
the
right
to
enter the
Complainants’ property
to take their own
Expert
readings. Complainants
timely
granted permission
for
Respondents
to
enter property
to take
readings. [See
Complainants’
Signed Response,
Appendix
B]
Both parties
were Ordered
by the Hearing
Officer
to
report
Expert findings
to the other
party
by
October
15,
2008. All
Depositions were
ordered
cc*npleted
by November
30, 2008.
[See
Hearing Officer’s
9/11/08 Order,
Appendix
C]
The very same
day that Hearing
Officer Bradley
Halloran entered
his Order,
Complainants
sent a
letter
to
Respondents
listing many dates
suitable for
acoustical testing on
Complainants’
property
prior to Order’s
expert disclosure
deadline.
[See
9/11/08
Letter,
Appendix
D]
CURRENT
SITUATION
Despite
Complainants
reminders
and granting
of permission
for
testing,
Respondents
have
failed
to conduct
any
tests,
disclose
any expert
opinions,
or
produce
any expert
report.
They
did
not
request
an extension
of time
from
the
Hearing
Officer.
Nor
did
they
ever
contact
Complainants’
to
notify
them
that
testing
would
be done.
Now
that
the
weather
is turning
cold,
Respondents’
Air
Conditioners
seem
to
be turned
off
for
the season
and
any
testing
could
not
fairly
represent
warm
weather
levels
of
activity
and
noise.
While
Respondents
have
submitted
the
resume
of
an
individual
in
Indiana,
that
is
the
extent
of
their
“Expert”
information.
They
have
not disclosed
a
single
expert
opinion,
despite
knowing
full
well
that
the
Hearing
Officer
had
mandated
October
15th
as
the
due
date
for
all expert
disclosures.
Respondents
have
been
aware
of
the
need
to conduct
their
own
testing
and
retain
an expert
(if they
chose
to
contest
this
case)
since
April
15, 2008,
when
they
were
served
with
the
complaint.
That
is a
full
six months
before
the Hearing
Officer’s
Order’s
October
15,
2008
deadline
for full
expert
disclosures.
That
was
more
than
adequate
time
for
testing
and
an
assessment
to
take
place.
The
air
conditioners
were
turned
on
within
hours
of the
Respondents
being
served
with
the
complaint
(April
15,
2008)
and
were
running
until
at
least
October
10,
2008.
REQUEST
Due
to the
Respondents’
failure
to
produce
this
report--stalling
this
case
and
ignoring
a
written
order
of the
Hearing
Officer—we
respectfully
ask the
PCB
to bar
Respondents
from
submitting
an
expert
report
or
allowing
the expert
to
testify
at
the
hearing.
David
J. Fishbaum
9,2-R
Respectfully
sui
Anne
McDonagh
Date
APPENbIX
A
Acoustic
Associates,
Ltd.
I III
IIIIItlIIIiiiiiiniim
iiiiiiiiiiIIII I I I I
I I
I I
Specialists
in Hearing
and Acoustics
1278 W.
Northwest
Hwy - Suite
904,
Palatine, Illinois
60067
Tom Thunder,
AuD, FAAA, INCE
- Principal
Office: 847-359-1068
•
Fax:
847-359-1207
Roger Harmon,
BSEE, PE
- Acoustical Engineer
Website:
wwwAcousticAssoiares.com
Steve
Hallenbeck, AuD,
FAAA — Audiologist
E-mail: infoll)AcousticAssociatesomc
Steve Thunder,
BSE Cand.
— Engineering
Intern
June
8th, 2007
Anne
McDonagh
1464
Linden
Ave.
Highland
Park, IL 60035
Re:
Noise Emissions
Dear
Mrs. McDonagh:
This
letter reports the
fmdings
of our
recent noise
assessment
of the A/C
units next to your
property.
As you
asked we have
assessed this noise
relative to the
State of Illinois
noise code (ref:
35 Ill.
Adm.
Code
Subtitle H).
Under this code,
your residence is
classified as Class
A
(residential)
land
and the
neighboring home from
which
the
noise is emitting
is also classified as
Class A (residential)
land.
Since
the
measurements
were taken
at
approximately
11:30 AM, the
applicable code
here is
Section
901.1 02a which pertains
to residential
noise radiated
to another
residential
property during
daytime
hours
(7am — 10pm).
Although the
limits are specified
in each of nine
octave
frequencies,
the
overall
(total) limit often used
for simple
monitoring purposes
is 55
dBA.
Also, it was found that
there
was
a
Prominent Discrete
Tone.
Accordingly,
Section 901.106
of the code also
applies.
This
applies
a -10 dB
correction to
the frequency at which
the tone occurs.
To
conduct
our study, we set up
our
equipment
next to the house that
was being
disturbed, 25
ft from
the
source. Our
equipment
consisted of a high
precision sound
level meter connected
to
a
digital
recorder. A
calibration
tone was placed on the
recording so that
the
recording
could be accurately
analyzed
in
our
laboratory.
The
recording
began around
11:30
AM on Tuesday,
May 29, 2007.
Our
intern
was
on site
documenting
his recordings
and observing
acoustic surroundings.
It was
indicated
that
the
noise being
recorded
at
the time
as representative,
although
it was
even louder
on other
occasions.
In our
lab analysis,
we generated
1/3-octave and
octave
frequency
spectra. The
1/3-octaves were
used
to
determine the
presence
on
a Prominent
Discrete Tone, as required
by IL code. And
the octave bands
were
used to
present the data in
a
simplified
form. The resultant
octave band frequency
spectrum is
shown
in FIGURE
1. The
overall
level of this spectrum
is 57 dBA. As
seen in
the
figure, the
octave
level
at 250 Hz (65
dB) far exceeds
the
Illinois
daytime
limit of
57 dB,
as well as the nighttime
limit
of
47 dB.
Furthermore,
when the daytime
limit
is
corrected
for the presence
of the prominent
discrete
tone
(-10 dB), it exceeds
the
allowable
limit by 18 dB.
It is also necessary
to correct
the
levels
due
to
background
noise. In
this case the correction
was
0 dB. As
shown in
FIGURE
1, the background
noise
is far
below
the
measurement
level
(greater
than 10 dB) at
250 Hz.
-
Anne McDonagh: Noise Emissions
June
8th, 2007
Figure 1-NC Noise
There are a
total of 3 A/C units. But at the time of the
measurement,
there
was only one unit
running.
The
second unit was the same
as
the first,
so a 3 dB increase in the noise level can be expected
when
the second unit is running
at the same time as the first unit. The
3
rd
unit,
however,
was not the
same
as
the other two. Therefore, an increase in the
noise
when all three units run
is
likely,
but we
can not
predict
by
how much. At the time
of the test, it was 80 degrees outside and
the
units were
determined
to have about a 50% duty (on-off) cycle after
an hour of measurement /observation. On
hotter days
it
can be assumed that the duty cycle will
increase therefore increasing the noise.
During
the
measurements one unit ran
part of the time and two units ran part
of the time. Therefore, data
from
only one unit running was taken and then extrapolated
to an equivalent of a 1-hour measurement.
The character
of this noise can also
contribute to the nuisance. In addition to
the
annoyance
of
the tonal
quality of the noise, there is also an acoustic beating
characteristic where the level of
the hum
oscillates. This characteristic exacerbates the
nuisance. The beating is ljkely caused
by the
2
A/C
units
running at nearly the
same
speed creating the beating effect.
Note, that there is no beating
when
just
one
unit is running.
I hope this
report meets
your
expectations in addressing this
noise issue.
We
appreciate the
opportunity
of
working with you and ask
that
you
call
us
if
you have any questions.
Sincerely,
Steve
Thunder
Purdue
University Acoustical Engineering Intern
Reviewed by,
Tom
Thunder, AuD, INCE
Acoustical Engineer and Audiologist
Frequency, Hz
A rniicti
A cnnitc T .tgI
Pna
7
APPENbIX B
Anne
McDonagh
David
Fishbaum
1464
Linden
Avenue
Highland
Park,
IL
60035
Suite
350
500
Skokie
Boulevard
Northbrook, Illinois
60062
Telephone
(847)
849-4800
Facsimile
(847)
205-9444
www.wiczerzelmar.com
0
t-of-
-1U’I’
Pursuant
to
Mr.
Halloran’s
Order
I
am
proposmg
the
following
discovery
6Qvrs
/
1.
Written
discovery to
be
propounded on
or
before
Mtit
2008;
2.
Expert
disclosures
to
be
completed by
October
15,
2008;
and
3.
All
depositions
to
be
completed by
November 30,
2008.
In
addition,
based
on
the
State
of illinois
testing
standards,
measurements
by
our
clients’
expert
are required
to
be
taken
from
your
property.
Please
let
me
know
if
you
have
any
objection
to
our
expert
entering
on
to
your
property for
the
limited
purpose
of
taking
the
required
measurements.
If
you
have
no
objection to
the
foregoing,
please
sign
a copy
of
this
letter
-
acknowledging
your
agreementthat
I
will
submit
this
letter
as part
of
our
discovery
plan.
Thank
you.
fo
yc-obQ
WIczER
&
ZELMAR,
LLC
ATrORNEYS
AT
LAW
fl:
1Ltc
1!(it
Jcze
-flD
Jiw&Yd
BERNARD WICZER
MICHAEL A.
ZELMAR
EWOT
S. WK2ER
TRESSA
A.
PANKOVITS
JOHANNAH K.
HEBL*
*Admifld
in
Wisconsin
/.3ifoB
±
I:9/l/:1
c?e[
‘August
14,
2008
Re:
McDonagh
& Fishbaum
v.
Michelon
Dear
Ms.
McDonagh
and
Mr.
Fishbaum:
schedule:
j
Oct1
-r
ryot-
ESW:hr
(j4&&
&c
en
AGREED:
APPENbIX C
ANNE
MCDONAGH
and
DAV11)
FISHBAUM,
Complainants,
V.
Respondents.
)
)
)
)
)
PCB
08-76
)
(Citizens
Enforcement
— Noise)
)
)
)
)
)
)
HEARING
OFFICER
ORDER
On
September 11,
2008,
all
parties
participated
in
a
telephonic
status
conference
with
the
hearing
officer.
The
complainants
represented
that
discovery
is
proceeding.
The
agreed
discovery
schedule
is
as
follows.
Written
discovery
must
be
propounded
on
or
before
September
5,
2008.
Expert
disclosures
must
be
completed
on
or
before
October
15,
2008.
All
depositions
must
be
completed
on
or
before
November 30,
2008.
Complainant has
agreed
to allow
respondents
expert
witness
access
to
their
property
for
completion
of
sound
measurements.
The
parties
or their
legal
representatives
are
directed
to
appear
at a
telephonic
status
conference
with
the
hearing
officer
on
November
13, 2008,
at 9:00
a.m.
The
telephonic
conference must
be initiated
by
the
complainant,
but
each
party
is
nonetheless
responsible
for
its
own
appearance.
At
the
conference
the parties
must
be
prepared
to
discuss
the
status
of
the
above-captioned
matter
and
their
readiness
for
hearing.
IT IS
SO
ORDERED.
Bradley
P.
Halloran
Hearing
Officer
Illinois
Pollution
Control
Board
James
R.
Thompson
Center,
Suite
11-500
100
W.
Randolph
Street
Chicago,
Illinois
60601
312.814.8917
ILLINOIS
POLLUTION
CONTROL
BOARD
September 11,2008
RECEVE
CLERKS
OFFICE
SEP
11
2008
STATE
OF
fLU
P1ltjn
Control
Bürr
RICHARD
and
AMY
MICHELON,
c?
2
CERTIFICATE
OF SERVICE
It
is hereby
certified
that
true copies
of the foregoing
order
were
mailed,
first
class, on
September
11, 2008,
to
each
of
the persons
on
the
attached
service
list.
It
is hereby
certified
that
a true
copy
of the foregoing
order
was hand
delivered
to
the following
on September
11, 2008:
John
T.
Therriault
Illinois
Pollution
Control
Board
James
R.
Thompson
Center
100
W.
Randolph
St.,
Ste.
11-500
Chicago,
Illinois
60601
Bradley
P. Halloran
Hearing
Officer
Illinois
Pollution
Control Board
James
R. Thompson
Center
100 West
Randolph
Street,
Suite 11-500
Chicago,
Illinois
60601
312.814.8917
3
PCB
2008-076
PCB
2008-076
David
Fishbaum
Amy
Michelon
Anne
McDonagh
& David
Fishbaum
Richard
Michelon
1464
Linden
Avenue
1474
Linden
Avenue
Highland
Park,
IL
60035
Highland
Park, IL
60035
PCB
2008-076
Elliot
S. Wiczer
Wiczer
& Zelmar,
LLC
500
Skokie
Blvd.
Suite
350
Northbrook,
IL
60062
APPENbIX
b
Anne Mc9onagh
and 9ad Rshbaum
/
1464
Unden
Avenue
—ijig
j
/
í(
/
Highland
Park. II.
6005
I
LI
Septemberll,2008
Elliot
Wiozer
Wiczer
S Zelmar liC
500
Skokie
Ivd., Suite
50
Northbrook
II. 60062
Mr.
Wiczer:
/ii
We
gave our
approval
August
0,
2008
for
your
expert to enter
our property for the purpose
of testing the
noise.
I
asked to be notified in
advance so I
can
be present
during the testing.
I
am
home
a
lot so this
should
not
be
cumbersome.
We will
be
home and
available for testing
to be done
oti
Friday,
Sept.
I
2
m
and all of
next week
(Sept.
15-19.)
We
will
be traveling four
days
of the following week.
Monday
through
Thursday, Sept.22-25.
Friday,
Sept26Th
and Monday,
Sept.
29
m,
I will
be
at
home if testing
is scheduled.
eligious holidays for us
fall
on
Sept.SOm
and October 1 so
those days are not
good.
October
2-8th are
acceptable days for testing.
We will
again be travelling from
October 9th
through
to
October 15th,
so
the last
available date
for testing
would
be
Wednesday,
October
8.
I
can
be reached
at
841-4fl-6911
or at AnneMeQonaghcofri1cast.net
or via fax at
841-4fl-1
44 but
please call
to confirm
we have received
any
faxes sent.
57,cerelY.
