FORMAL COMPLAINT
These materials are for general informational purposes only and do not
constitute legal advice or substitute for the provisions of any statute, rule, or
regulation.
Any person can file a formal complaint with the Illinois Pollution Control
Board (Board). When you file a formal complaint, you, as the “complainant,” start
an enforcement action before the Board. By filing a formal complaint, you
assume the responsibility to prove to the Board that the person you are
complaining about, called the “respondent,” has committed a violation. Your
formal complaint must specifically allege which provision of the following you
believe the respondent has violated:
•
The Environmental Protection Act (Act)
•
The Board’s regulations
•
A Board order
•
A permit issued by the Illinois Environmental Protection Agency (IEPA)
IEPA is not required to investigate your allegations. The Board cannot
provide you with legal advice. If the Board accepts your formal complaint, you
will generally need to prepare and file other documents with the Board, as well as
formally present your case at hearing. Board employees cannot prepare these
documents for you or speak on your behalf.
Preparing, Filing, and Serving a Formal Complaint
To start an enforcement action, you must prepare a formal complaint, a
notice to respondent, and a certificate of service. You may use the formal
complaint, notice, and certificate forms that follow or create your own. Any
documents you create must contain all of the information called for by the forms.
Once completed, you must file the original and nine copies of the formal
complaint, notice to respondent, and certificate of service with the Clerk of the
Board (100 W. Randolph St., Suite 11-500, Chicago, Illinois 60601). You can file
documents with the Clerk by delivering them in person, placing them in the U.S.
mail, or using a messenger service (
e.g.
, Federal Express, United Parcel
Service).
As noted, the person you are complaining about is called the
“respondent.” Your formal complaint may identify more than one respondent.
Though you “file” a document with the Board’s Clerk, you “serve” that document
on each respondent. You must serve one copy of the formal complaint and
notice of filing on each respondent by registered mail, certified mail, messenger
service, or personal service. The notice must inform the respondent that you
have filed the formal complaint with the Board and that the respondent may be
required to attend a hearing on a date set by the Board.
Electronic Filing, Received, Clerk's Office, August 1, 2007
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You must provide proof (
e.g.
, mail or messenger service receipt) to the
Clerk of the Board that you have served a copy of the formal complaint on each
respondent. The Board prefers that you attach the proof of service to the
completed certificate of service when you file your formal complaint with the
Board. However, if you choose to send your formal complaint to the Board and
each respondent simultaneously, you must provide the Board with the proof of
service later.
Proof of service is required for all documents you file with the Board, not
just the formal complaint. Your filings other than the formal complaint can but
need not be served by registered mail, certified mail, messenger service, or
personal service. For example, you may serve these other documents by U.S.
mail. If you do serve a respondent by either certified or registered mail, or by
messenger service, you must file with the Board a copy of the receipt showing
that the document was delivered to the respondent. If you personally serve a
respondent, you must file with the Board a signed and notarized affidavit stating
who you served with a copy of the document and where and when you served it.
If you serve a respondent by U.S. mail, you must file with the Board a signed and
notarized affidavit stating where and when you mailed the document and that you
mailed it with sufficient postage.
Please refer to Sections 101.302, 101.304, and Part 103 of the enclosed
Board procedural rules (35 Ill. Adm. Code 101.302, 101.304, 103) for more
information about these filing and service requirements.
Board Accepting Formal Complaint and Assigning Hearing Officer
Once the Clerk’s Office receives your formal complaint, and the proof of
service on each respondent, the Clerk will assign a docket number to your
complaint and schedule your complaint for initial review by the Board at a Board
meeting. The Board first reviews a formal complaint to determine whether it is
“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 form. “Frivolous” means that the 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.
See
35 Ill. Adm. Code
103.212(a) and items 5 and 9 of the formal complaint form. For example, the
Board has the authority to order a respondent to stop polluting and pay a fine, 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.
Electronic Filing, Received, Clerk's Office, August 1, 2007
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If the Board finds that a formal complaint is either duplicative or frivolous,
the Board will dismiss the complaint and notify both you and each respondent of
its decision. Under the Act, you may then seek relief from the alleged violation in
the circuit court (
see
415 ILCS 5/45(b)), or you may file an appeal of the Board’s
decision with the appellate court (
see
415 ILCS 5/41(a)).
If, however, the Board finds that a formal complaint is neither duplicative
nor frivolous, the Board will accept the case for hearing and assign a hearing
officer. The hearing officer will then contact the parties to schedule a hearing. At
hearing, the complainant must present evidence, such as sworn testimony, to
prove that the respondent has committed the violation or violations alleged in the
formal complaint.
Necessity of an Attorney
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 the formal
complaint and any motions or briefs, and present the case at hearing.
Costs
To file your formal complaint or any other document with the Board, you
do not pay any filing fee to the Board. The Board will pay hearing costs, such as
hearing room rental, court reporting fees, and hearing officer expenses. You are
responsible for the costs that you or your attorney may incur in pursuing your
complaint (
e.g.
, attorney fees, duplicating charges, travel expenses, and witness
fees).
Electronic Filing, Received, Clerk's Office, August 1, 2007
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State of Illinois
Pollution Control Board
James R. Thompson Center
100 W. Randolph Street, Suite 11-500
Chicago, Illinois 60601
http://www.ipcb.state.il.us/
FORMAL COMPLAINT
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
In The Matter Of:
)
Chad Gifford
)
)
)
(Insert your name(s) in the space above)
)
Complainant(s),
)
)
v.
)
PCB 20
-
American Metal Fibers Inc.
)
(For Board use only)
)
)
(Insert name(s) of alleged polluter(s))
)
Respondent(s)
)
Note: If you do not use this formal complaint form and instead draft and type
your own, it must contain all of the information requested by this form. All items
must be completed. If there is insufficient space to complete any item, you may
attach additional sheets, specifying the number of the item you are completing.
Once completed, you must file the original and nine copies of the formal
complaint, notice to respondent, and certificate of service with the Clerk of the
Board
at
the
above
address.
Electronic Filing, Received, Clerk's Office, August 1, 2007
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1.
Your Contact Information
Name:
Chad A Gifford
Street Address:
1126 Foster Ave
Lake Bluff, IL 60044
County:
Lake
State:
IL
Phone Number:
( 847 ) 283 - 0515
2.
Place where you can be contacted during normal business hours (if
different from above)
Name:
Street Address:
County:
State:
Phone Number:
(
)
-
3.
Name and address of respondent (alleged polluter)
Name:
American Metal Fibers Inc. (Robert Carlson)
Street Address:
13420 Rockland Road
Lake Bluff IL, 60044
County:
Lake
State:
IL
Phone Number:
( 847 ) 362 - 2634
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
Manufacturer of metal fibers, wools, filters, and component parts
Electronic Filing, Received, Clerk's Office, August 1, 2007
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5.
List specific sections of the Environmental Protection Act, Board
regulations, Board order, or permit that you allege have been or are
being violated
Noise levels allowed to class A land from class C land during day
and night operations.
1. Title 35, Subtitle H, Section 901.102 (IL EPA)
2. Title 6, section 24 & 25 (EPA)
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
Manufacturing noise both during the day and particularly at night,
from high powered exhaust fans, loud compressed air pops, and
low frequency rumbles and shakes. The hours of typical operations
are 10pm till 3pm the following day, resuming again at 10pm
Sunday-
Friday.
In summer months often will run 24 hrs a day and into weekends.
Pneumatic Pops are present when factory is not in full operations.
The noise sounds like a combination of a freight train and an
airplane taking off, interrupted by a loud percussive pneumatic pop,
which resonates through the metal structure of the factory. The
sound is very pernicious and all attempts at abating by residents
have no result in a reduction/elimination of the noise. Rear of factory
and metal processing equipment is 100 yards from nearest property,
separated by a protected wetland (see map attached as attachment
1)
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)
Running 10pm at night, through the night till 3 pm the next day.
Both low and high frequencies, that are heard through out the house
in any room, with windows and doors closed. This happens year
round. Noise is worst in Summer and Fall months. Decibel levels in
yard is between 52-65 DBA and 65-78 DB C weighted. Gifford
Electronic Filing, Received, Clerk's Office, August 1, 2007
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noticed noise 3 months after moving in (August 2005), has
continued ever since. Please find attached police reports and video
evidence (attachment 2 and 3), evidence verified by Gregg Zak,
noise consultant.
Neighborhood has noticed for 10+ years and has spoken to the
company officers on numerous occasions in previous years. Noise
is Sunday through Friday, sometimes Sunday through Sunday in
summer months. Pops are often still present when factory is not
running.
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
1.Can not use south facing rooms in home after 10pm Sunday
through Friday with out hearing the noise distinctly
2. Children and Adults are often woken from sleep due to noise, or
kept awake after 10pm due to noise. Replacement windows and
added insulation does not abate noise in homes. Sleep is often
disrupted by noise.
3.
Residents can not keep windows open during night time
operations, nor can bedroom windows be opened during daytime
for naps (for children or adults)
4. Enjoyment of outdoor spaces are diminished significantly when
factory is running, must speak in elevated voices, and sound is quite
loud. Residents will not entertain outdoors in warm months when
factory runs.
5. Diminishment of property values
6. Residents must listen to TV, Radio, Etc. at elevated levels when
factory is running. Also, residents will have music or other noises
present to attempt to drown out factory noises.
7. Emotional distress from lack of sleep, anxiety over monies
spent in attempts to abate the noise (landscaping, new
windows, insulation, etc.)
8. Children are scared of noise during day and are reserved
about playing in yard. Often children are terrified after being
waken at night by factory noise.
9. Extensive time and monies invested in abatement and
negotiations with AMFI and Village of Green Oaks, with no
relief or resolution (attempt at ordinance enforcement has
taken over a year with no enforcement).
Electronic Filing, Received, Clerk's Office, August 1, 2007
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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))
1. A sound wall be built so residents to not hear factory running
2. Factory operates during normal business hours.
3. All fans and filtration devices be sound baffled and directed away
from residents’ properties.
4. Abate the noise entirely, so residents do not hear this noise any
longer.
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 alleged pollution (note that you need not
include any complaints made to the Illinois Environmental Protection
Agency or any unit of local government)
Electronic Filing, Received, Clerk's Office, August 1, 2007
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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 represent (a) himself or herself as an individual or (b) his
or her unincorporated sole proprietorship, though the individual may
prefer having attorney representation.)
I, Chad Gifford, will be representing him self
12.
(Complainant’s signature)
CERTIFICATION
(optional but encouraged)
I, _________________________________________________, on oath or
affirmation, state that I have read the foregoing and that it is accurate to the best
of my knowledge.
____________________________________________
(Complainant’s signature)
Subscribed to and sworn before me
this
day
of
, 20 .
___________________________
Notary Public
My commission expires: ______________________
Electronic Filing, Received, Clerk's Office, August 1, 2007
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NOTICE TO RESPONDENT
NOTE: THIS STATEMENT MUST BE INCLUDED IN THE SERVICE OF THE
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 Ill. 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 Accepting Formal Complaint 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
Electronic Filing, Received, Clerk's Office, August 1, 2007
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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 may be made in
person, by U.S. mail, or by messenger service. Mail service is presumed
complete four days after mailing.
See
35 Ill. 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
35 Ill. 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
35 Ill. 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 of an Attorney
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).
Electronic Filing, Received, Clerk's Office, August 1, 2007
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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.
Electronic Filing, Received, Clerk's Office, August 1, 2007
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CERTIFICATE OF SERVICE
I, the undersigned, on oath or affirmation, state that on __________________,
20____, I served the attached formal complaint and notice on the respondent by
certified mail (attach copy of receipt if available,
otherwise you must file receipt later with Clerk)
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 must file affidavit later with Clerk)
at the address below:
RESPONDENT’S ADDRESS:
Name _______________________________________________________________
Street _______________________________________________________________
City, state, zip code ____________________________________________________
(list each respondent’s name and address if multiple respondents)
_______________________________________________
Complainant’s signature
Street __________________________________________
City, state, zip code _______________________________
Subscribed to and sworn before me
this
day
of
, 20 .
___________________________
Notary Public
My commission expires: ___________________
Electronic Filing, Received, Clerk's Office, August 1, 2007
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