Copy
CERTIFIED MAIL
Dirk F. Borgsmiller
1215 East Walnut Street
Carbondale, IL 62901
March 25, 2006
Dear Mr. Borgsmiller :
Enclosed please find a formal complaint which has been filed with the Illinois Pollution Control
Board together with a document titled "Information for Respondent Receiving Complaint" for
your review and information. Respondents' attendance at a hearing, at a date set by the board,
may be required .
Sincerely, _
CAICIJ
Jam
and Lynn Chew
1600 Neal Lane
Carbondale, IL 62902
Enclosures
cc: Illinois Pollution Control Board
Mr. Greg Zak, Noise Solutions
RER ,EIVEp
MAR 3 0 2006
STATE OF ILLINOIS
Pollution Control Board
! ~ ~ C
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LERK'S OF
FICe
NOTICE TO RESPONDENT
AIg0 3 0 2006
STATE OF ILLIN
NOTE: THIS STATEMENT MUST BE INCLUDED IN THE SERVICE
40
01
Bod
FORMAL COMPLAINT ON THE RESPONDENT
INFORMATION FOR RESPONDENT RECEIVING FORMAL COMPLAINT
Please take notice that today I filed with the Clerk of the Illinois Pollution Control Board
(Board) a formal complaint, a copy of which is served on you along with this notice . You may
be required to attend a hearing on a date set by the Board .
Information about the formal complaint process before the Board is found in the
Environmental Protection Act (Act) (415 ILCS 5/1 et seq.) and the Board's procedural rules (35
111. Adm. Code 101 and 103). These can be accessed at the Board's Web site
(www.ipcb .state.il.us). The following is a summary of some of the most important points in the
Act and the Board's procedural rules . It is provided for general informational purposes only and
does not constitute legal advice or substitute for the provisions of any statute, rule, or regulation
:
Board Accenting Formal Comniaint for Hearing; Motions
The Board will not accept this formal complaint for hearing if the Board finds that it is
either "duplicative" or "frivolous" within the meaning of Section 31(d) of the Act (415
ILCS
5/31(d)) and Section 101.202 of the Board's procedural rules (35 Ill. Adm. Code 101 .202).
"Duplicative" means that an identical or substantially similar case is already pending before the
Board or in court . See 35 Ill. Adm. Code 103.212(a) and item 10 of the formal complaint
.
"Frivolous" means that the formal complaint seeks relief that the Board does not have the
authority to grant, or fails to state a cause of action upon which the Board can grant relief
. For
example, the Board has the authority to order a respondent to stop polluting and pay a civil
penalty, to implement pollution abatement measures, or to perform a cleanup or reimburse
cleanup costs. The Board does not have the authority, however, to award attorney fees to a
citizen complainant.
See 35 Ill. Adm. Code 103 .212(a) and items 5 and 9 of the formal
complaint.
If you believe that this formal complaint is duplicative or frivolous, you may file a
motion with the Board, within 30 days after the date you were served with the complaint,
requesting that the Board not accept the complaint for hearing . The motion must state the facts
supporting your belief that the complaint is duplicative or frivolous . Memoranda, affidavits, and
any other relevant documents may accompany the motion
. If you need more time than 30 days
to file a motion alleging that the complaint is duplicative or frivolous, you must file a motion for
an extension of time within 30 days after service of the complaint
. A motion for an extension of
time must state why you need more time and the amount of additional time you need
. Timely
filing a motion alleging that the complaint is duplicative or frivolous will stay the 60-day
period
for filing an answer to the complaint . See 35 Ill. Adm. Code 103 .204,103.212(b).
All motions filed with the Board's Clerk must include an original, nine copies, and proof
of service on the other parties . Service maybe made in person, by U.S. mail, or by messenger
service. Mail service is presumed complete four days after mailing
. See 35 111. Adm. Code
101.300(c), 101.302, 101.304 .
If you do not respond to the Board within 30 days after the date on which the complaint
was served on you, the Board may find that the complaint is not duplicative or frivolous and
accept the case for hearing. The Board will then assign a hearing officer who will contact you to
schedule times for telephone status conferences and for hearing
. See 35111. Adm. Code
103.212(a) .
Answer to Complaint
You have the right to file an answer to this formal complaint within 60 days after you
receive the complaint. If you timely file a motion alleging that the complaint is duplicative or
frivolous, or a motion to strike, dismiss, or challenge the sufficiency of the complaint, then you
may file an answer within 60 days after the Board rules on your motion
. See 35111. Adm. Code
101 .506,103 .204(d), (e), 103.212(b) .
The Board's procedural rules require the complainant to tell you as respondent that :
Failure to file an answer to this complaint within 60 days may have severe
consequences. Failure to answer will mean that all allegations in the
complaint will be taken as
if
admitted for purposes
of
this proceeding.
If
you have any questions about this procedure, you should contact the hearing
officer assigned to this proceeding, the Clerk's Office or an attorney .
35 Ill.
Adm.Code
103.204(f).
Necessity ofanAttorney
Under Illinois law, an association, citizens group, unit of local government, or corporation
must be represented before the Board by an attorney . In addition, an individual who is not an
attorney cannot represent another individual or other individuals before the Board. However,
even if an individual is not an attorney, he or she is allowed to represent (1) himself or herself as
an individual or (2) his or her unincorporated sole proprietorship
. See 35 Ill. Adm. Code
101.400(a). Such an individual may nevertheless wish to have an attorney prepare an answer
and any motions or briefs, and present a defense at hearing
.
costs
In defending against this formal complaint, you are responsible for your attorney fees,
duplicating charges, travel expenses, witness fees, and any other costs that you or your attorney
may incur. The Board requires no filing fee to file your answer or any other document with the
Board. The Board will pay any hearing costs (e.g., hearing room rental, court reporting fees,
hearing officer expenses).
If you have any questions, please contact the Clerk's Office at (312) 814-3629
.
JAMES CHEW AND LYNN CHEW
1600
NEAL LANE
CARBONDALE, IL
62902
Complainant(s),
V .
DIRK F. BORGSMILLER
SPORTS BLAST, L.L.C .
1215
E. WALNUT STREET
CARBONDALE, IL
62901
Respondent(s)
.
State of Illinois
POLLUTION CONTROL BOARD
JAMES R. THOMPSON CENTER
100 W. RANDOLPH STREET, SUITE
11-500
CHICAGO, ILLINOIS
60601
FORMAL COMPLAINT
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
1. Your name, street address, county, state
:
JAMES CHEW AND LYNN CHEW
1600
NEAL LANE
CARBONDALE, IL
62902
JACKSON COUNTY
PHONE :
618-457-7911
2
.
Place where you can be contacted durin normal
business hours (if different from above
SAME AS ABOVE
PCB
0
U
1D
(For Board use)
Page 1
3
. Name and address
of respondent (alleged polluter)
:
DIRK F .
BORGSMILLER, OWNER OF SPORTS BLAST, L .L .C
.
BUSINESS ADDRESS: 1215 E. WALNUT STREET, CARBONDALE, IL 62902
BUSINESS PHONE : 618-529-5511
PERSONAL ADDRESS: 3204 FOXBERRY CIRCLE, CARBONDALE, IL 62901
PERSONAL PHONE : 457-5303
4 . Describe the type of business or activity that you allege is causing or allowing
pollution (e.g ., manufacturing company, home repair shop) and give the address of
the pollution source if different than the address above
:
The facility offers "special event hosting" for parties, wedding receptions,
fraternities, wrestling, and other various "events" by renting out the facility to
paying customers . The facility is equiped with a "state of the art sound system"
and has the capacity/occupancy to have up to 1,184 individual participants within
the facility. The facility generates amplified sound that extends beyond it's
boundaries, and the parking lot generates various sounds and noise from the
participants who congregate in the parking lot for extended periods of time
.
5 . List specific sections of the Environmental Protection Act, Board regulations,
Board order, or permit that you allege have been or are being violated
:
415 ILCS 5/24 (formerly Ill . Rev . stat. 1991, ch. 111 1/2, Par . 1024)
35
Ill .
Adm . code, subtitle
H,
chapter 1, Section 900.102
35
Ill .
Adm . code, subtitle
H,
chapter 1, section 901.104
sec 9A Environmental Protection Act, Nuisance Air Pollution
6. Describe the type of pollution that you allege
(e .g ., air, odor, noise, water,
sewer back-ups, hazardous waste) and the location of the alleged pollution . Be as
specific as you reasonably can in describing the alleged pollution
:
Noise is generated from 2 (two) main sources
:
1. Amplified sound from inside the facility from the "state of the art sound
system" which travels to the complaintants' property located 1/3 to 1/2 mile from
the facility .
2 . Parking lot noise from participants outside the facility residing in the
parking lot, including but not limited to, yelling, honking of horns, sounding of
car alarms without cause, and vehicle stereos
.
7. Describe the duration and frequency of the alleged pollution . Be as specific as
you reasonably can about when you first noticed the alleged pollution, how
frequently it occurs, and whether it is still continuing (include seasons of the
year, dates, and times of day if known)
:
The noise was first noticed by the complaintants during the summer of 2005 . The
noise varies in it's intensity and duration depending upon what type of event has
rented the facility. The facility offers "special event hosting" weekdays and
weekends during the evening hours and dependent upon availability of the facility
and it's schedule . The required closing time of the facility is 1 :59 a.m. according
to the Carbondale city ordinance .
The following dates and times have been documented by the complaintants and
confirmed by the Carbondale Police Department
:
Page 2
Friday, September
9,
2005 from 11:30 p.m. until Saturday, September 10 at 2 :30 a.m .
Saturday, September 17, 2005 from 11 :00 p.m. until Sunday, September 18 at 2 :30 a.m .
Saturday, October 15, 2005 from 10 :45 p.m. until Sunday, October 16 at 2 :30 a.m .
Thursday, January 19, 2006 from 11 :30 p.m. until Friday, January 20 at 2 :30 a.m .
Saturday, March 18, 2006 from 1 :30 a.m. until 2 :30 a.m .
Thursday, March 23, 2006 from 11 :00 p.m. until Friday, March 24 at 2:30 a.m .
Friday, March 24, 2006 from 10 :30 p.m. until Saturday, March 25 at 3:30 a.m
.
The noise heard by the complaintants is not limited to the above times noted . These
specific times are those instances which have been collaborated by outside sources
.
There has been a variety of occasions when the noise levels have been disruptive to
the complaintants without a police report filed . These occasions are usually
occuring during the late evening hours or early morning hours with varying lengths
and volumes
.
8 . Describe any bad effects that you believe the alleged pollution has or has had on
human health, on plant or animal life, on the environment, on the enjoyment of life
or property,or on any lawful business or activity
:
The noise generated by the sports Blast facility has resulted in an unreasonable
interference with the use and enjoyment of complaintants' property which could
otherwise be described as quiet and tranquil . The disturbances occurring during the
late evening and early morning hours has caused disruption and loss of sleep to the
complaintants. The disturbance endangers the physical and emotional health and
well-being of the complaintants and depresses the value of complaintants'property
.
9. Describe the relief that you seek from the Board
(e.g ., an order that the
respondent stop polluting, take pollution abatement measures, perform a cleanup,
reimburse cleanup costs,
change its operation, or pay a civil penalty (note that the
Board cannot order the respondent to pay your attorney fees or any out-of-pocket
expenses that you incur by pursuing an enforcement action)
:
complaintants' request that the Board enter an order directing the Respondent to
cease and desist from further violations of applicable statutes and regulations and,
more specifically order Respondent to either change its operations or construct
sound proofing structures to stop noise emissions beyond the boundaries of their
property. it is requested that a civil penalty be assessed and ordered . Further,
the complaintants request that the Board enter an order according such further, or
other, relief as it may deem appropriate in the circumstances
.
10. Identify any identical or substantially similar case you know of that is already
pending before the Board or in another forum against this respondent for the same
allege pollution (note that you need not include any complaints made to the
Illinois Environmental Protection Agency or any unit of local government)
:
None known to the complaintants . Previously the complaintants have registered their
problem with the Carbondale Police Department and the Carbondale city council
members . However, no resolution has been achieved or offered and the noise
pollution continues
.
11. State whether you are representing (a) yourself as an individual or (b) your
unincorporated sole proprietorship . Also, state whether you are an attorney and, if
so, whether you are licensed and registered to practice law in Illinois . (under
Illinois law, an association, citizens group, unit of local government, or
corporation must be represented before the Board by an attorney . Also, an individual
who is not an attorney cannot represent another individual or other individuals
before the Board . However, an individual who is not an attorney is allowed to
Page 3
re Present (a) himself or herself as an individual or (b) his or her unincorporated
sole proprietorship, though the individual may prefer having attorney
representation .) :
The complaintants represent as (a) himself or herself as an individual at this time
.
12
. (Cgtl~plainant's signature)
CERTIFICATION (optional but encouraged)
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on oath or
affirmation, state that
I
have red the foregoing and that it is accurate to the
best of my knowledge .
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subscribed to and sworn before me this day
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Page 4
OFFICIAL SEAL
TARA JULIAN
NOTARY PUBLIC-STATE OF ILLINOIS
MY COMMISSION EXPIRES:08123108
OFFICIAL SEAL
TARA JULIAN
NOTARY PUBLIC-STATE OF ILLINOIS
MY COMMISSION EXPIRES:0823/08
CERTIFICATE OF SERVICE
I, the undersigned, on oath or affirmation, state that on (month, day, year)
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certified mail (attach copy of receipt if available, otherwise you must file
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registered mail (attach copy of receipt if available, otherwise
you must file receipt later with Clerk)
messenger service (attach copy of receipt if available, otherwise you must
file receipt later with Clerk)
personal service (attach affidavit if available, otherwise you
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at the address below :
RESPONDENT'S ADDRESS :
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Label 0 70050390000146767083
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03/27/2006
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09 :34 :45 AM
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