RCEVED

CLERK’S

OFFICE

ILLINOIS

POLLUTION

CONTROL

BOARD

EB

32009

February

3

2009

STATE

OF

ILUNOIS

Pollution

Control

Board

ANNE MCDONAGH

and

DAVID

)

FISHBATJM,

)

)

Complainants,

)

)

PCB

08-76

v.

)

(Citizens Enforcement

— Noise)

)

RICHARD

and

AMY

MICHELON,

)

)

Respondents.

)

)

)

HEARING

OFFICER

ORDER

On January

29, 2009, all

parties participated

in a telephonic

status conference with

the

hearing

officer. Discussions

centered

on complainants’

Motion to

Bar Respondents’ Expert

Opinions,

filed November

12,

2009. The

respondents

filed

a Motion for Extension

of Time

to

Complete Discovery

on

December

1, 2009. Respondents’

motion

also addresses

complainants’

motion

to bar.

On December

9,

2008,

the

complainants

filed their response.

Complainants’

motion

states that the

respondents

have

not complied with

the discovery

schedule as set forth

in the

Hearing

Officer Order

of September 11,

2008. Specifically,

the

complainants

allege that

the respondents

failed

to serve

their experts report

as required

by

the

discovery schedule.

The

complainants

further state that any

testing of the respondents

air

conditioners now “could

not fairly

represent

warm

weather levels of activity

and

noise”,

and

therefore,

respondents’ expert

and his report

must

be barred.

(Mot. at 3).

In their motion, respondents

represent

that

written

discovery has been

served and

responded to,

and that respondents’

expert was

still

in

the process

of testing and preparing

a

report. Respondents represent

that

the expert report

will

be provided

to the complainants

on or

before January

6, 2009.

The complainants

response

continues

to request

that respondents’

expert be

barred

from

participating

and that “testing

their air

conditioning system in

freezing temperatures

cannot

replicate

summertime

levels

of usage

and noise”

(Response at 1-2).

While

it appears

to

be

true, and as conceded

by the

complainants, an air

conditioning

system

cannot

be

properly

tested

for noise when

temperatures fall

in the winter.

To bar

respondents

expert from

completing

his

report

would

be prejudicial

to

the

respondents

and may

also

be

prejudicial

to

the

complainants

as

well.

Complainants’

motion to bar

is denied.

---

2

During

the

status conference,

the

complainants

requested

that

a

hearing

date

be

set a

reasonable

time after the

respondents

completed

their

testing.

It

was

agreed that

testing

could

recommence

as early

as April

2009.

Therefore,

respondents’

expert

report

is

due to be served

on

or before

May

5,

2009. All

discovery

to

be

completed

on or

before May

5, 2009.

Any pre

hearing

motions,

including

motions

in

limine,

must

be filed

on

or

before

May

7, 2009.

Any

responses

must be

filed on

or before

May

8, 2009. The

mailbox

rule will

not

apply

to

the pre

hearing

motions

and responses,

and

all electronic

or approved

telefax

filings must

be received

by

the

Clerk’s

Office

no

later

than

4:30

p.m. of

the due

date.

A

hearing

in

this

matter

was scheduled

for

May 13,

2009.

Also

discussed

at the

status conference

was

respondents’

representation

that

a hearing

may

not

be

necessary.

Respondents

represented

that

they have requested

from

the

local

government

a

variance

so that

the air

conditioners

could

be

moved to

the

opposite side

of

the

house.

This

would

presumably

alleviate

any

noise issues

and

the

complaint could

be dismissed.

Further

discussion

will

be

entertained

at the

next

telephonic

status

conference.

The parties

or their

legal representatives

are directed

to appear

at a telephonic

status

conference

with the

hearing officer

on

March 5,

2009,

at 10:00

a.m. The

telephonic

conference

must

be initiated

by

the

complainant,

but

each

party is

nonetheless

responsible

for its own

appearance.

At the

conference

the parties

must

be

prepared

to

discuss

the status

of the above-

captioned

matter

and

their readiness

for

hearing.

IT IS

SO

ORDERED.

Bradley

P. Halloran

Hearing

Officer

Illinois

Pollution

Control

Board

James R.

Thompson

Center, Suite

11-500

100

W.

Randolph

Street

Chicago,

Illinois 60601

312.814.8917

---

3

CERTIFICATE OF SERVICE

It is

hereby certified that true

copies of the foregoing order were mailed, first

class, on February

3, 2009, to each of the

persons on the attached service list.

It is hereby certified

that a true copy of the foregoing

order was

hand delivered to

the

following on February

3,

2009:

John

T.

Therriault

Illinois Pollution Control

Board

James

R. Thompson Center

100W. Randolph

St.,

Ste.

11-500

Chicago, Illinois

60601

Bradley

P. Halloran

Hearing Officer

Illinois Pollution Control Board

James

R. Thompson Center

100 West Randolph

Street, Suite 11-500

Chicago, Illinois

60601

312.814.8917

---

4

PCB 2008-076

PCB

2008-076

David Fishbaum

Amy Michelon

Anne McDonagh

&

David

Fishbaum

Richard

Michelon

1464

Linden

Avenue

1474

Linden Avenue

Highland

Park, IL 60035

Highland Park, IL

60035

PCB 2008-076

Elliot

S.

Wiczer

Wiczer

&

Zelmar, LLC

500 Skokie Blvd.

Suite 350

Northbrook,

IL 60062