R~CEIVED~
CLERR’S OFff~C~
OCT
0
9
2003
STATE OF IWNOIS
BEFORE
THE ILLINOIS POLLUTION
CONTROL
BOAl~J~llutjon
Control Board
MORRY
GABEL, MYRA GABEL, DON
FOREMAN,
MARSHA FOREMAN, KEITH
PINSONEAULT and TRACY PINSONEAULT,
Mitchell S. Feinberg
CHEJIHAK & TECSON, P.C.
Attorney for Complainants
30 S. Wacker Drive
—
Suite 2600
Chicago, IL
60606
312-444-9300
Firm ID No. 70693
Complainants,
Respondent.
)
)
)
)
)
)
No.
PCBO3-38
)
)
)
)
)
NOTICE OF FILING
STATE
OF ILLINOIS
COUNTY OF CO 0
K
)
)
ss
)
vs.
THE WEALSHJRE, iNC., an Illinois
Corporation,
Bradley P. Halloran, Hearing Officer
Illinois Pollution Control Board•
100 W. Randolph
—
Suite 11-500
Chicago, IL
60601
FAX:
312-814-3669
Bruce T. Logan
Ash, Anos, Freedman & Logan, L.L.C.
77 W.
Washington
—
Suite 1211
Chicago, IL
60602
FAX:
312-346-7847
PLEASE TAKE NOTICE that
on the
~
day of October, 2003,
there was filed with
the Illinois
Pollution
Control Board
the
attached
Complainants’
Response
and
Objections
to
Respondent’s Motion to Stay Proceedings, a
copy ofwhich is herewith served upon you.
CHUHAK&TECSON,P.C.
By:
/M~ft~F~4~
Mitchell S. Feinberg, Attorney
o1~
Complainants
427307.1.11852.22239
AFFIDAVIT OF SERVICE
The undersigned, being first duly sworn
on oath,
deposes and
says that he caused to be
served the above and foregoing Notice of Filing and Complainants’
Response and Objections to
Respondent’s Motion to Stay Proceedings by sending a copy to:
Bradley P. Halloran, Hearing Officer
Bruce T. Logan
Illinois Pollution Control Board
Ash, Anos, Freedman &
Logan, L.L.C.
100
W. Randolph
—
Suite 11-500
77 W.
Washington Street
—
Suite 211
Chicago, IL
60601
Chicago, IL
60602
FAX:
312-814-3669
FAX:
312-346-7847
by
depositing
same in
the
U.S.
Mail
Chute
at
30
S.
Wacker
Drive,
Chicago,
Illinois
60606,
before
5:00 p.m.
on
October
_____,
2003,
with proper postage prepaid, and via facsimile to the
numbers indicated above on October
~
2003.
Mj4I~’~
~
FeinbergSUB~BED
AND SWORN to before me
this
‘
day of
,
20Q...3
~1II?/L1~
o
r~ICI~rSE~II
~
Phoebe R. Bindiger
I
j
Notary Public, State
of Illinois
J
NOTARY PUBLIC
~
My
Commission
Exp. O3/25/~iyj~
1
-2-
427807.1.11852.22239
RECE~1VED
CLERK’S
OFFICE
STATE OF ILLiNOIS
)
OCT
092003
)
ss
STATE OF ILLINOIS
COUNTY
OF CO 0 K
)
pollution Control Board
BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
MORRY GABEL, MYRA GABEL, DON
)
FOREMAN, MARSHA FOREMAN, KEITH
)
PINSONEAULT and TRACY PINSONEAULT,
)
)
Complainants,
)
VS.
)
No.
PCB 03-38
)
THE
WEALSHIRE, INC., an Illinois
)
Corporation,
)
)
Respondent.
)
COMPLAINANTS’ RESPONSE
AND
OBJECTIONS TO
RESPONDENT’S MOTION TO
STAY PROCEEDINGS
NOW COME COMPLAiNANTS, by and through their attorney, Mitchell S. Feinberg, of
Chuhak &
Tecson, P.C.,
and for their Response and Objections to
Respondent’s Motion to
Stay
Proceedings, state the following:
Complainants
have
on
file
an
Amended
Complaint,
stating
quite
simply
that
their
neighbor, The Wealshire, Inc. (Respondent), is in violation ofcertain laws ofthe State ofIllinois,
in that
Respondent’s
air conditioning units
are
creating
noise
pollution in
violation of the
law.
Complainants
are individuals
whose homes
are adjacent
to
this
residential
care
facility.
The
Complainants, unlike
Respondent, have
spent their own resources,
hiring
an
expert
to
conduct
multiple
sound measurements
of the noise
emanating from
said
air conditioning units.
In fact,
prior to the hiring of their expert (Greg Zak), Complainants, with and without their attorney, held
meetings
with
the Respondent in
order
to
try to
negotiate and
obtain
a reduction
of the
noise.
There were discussions prior to
the
filing of this
lawsuit,
and
Complainants were
either ignored
428116.1.11852.22239
and/or rejected by
Respondent.
The
Complaint was filed over
a year
ago
and
this
dispute has
been known by Respondent for well over two
(2)
years.
Any stay
in these proceedings would
cause undue hardship and burden to Complainants.
Respondent
states
that
it
has
begun
remedial
modifications
with
the
air conditioning
units.
And
while setting
the thermostat
to
run only
when the temperature
exceeds
a
certain
degree makes sense, when the air conditioning units
are running, they are in severe violation of
the law.
A stay ofthese proceedings is unnecessary for the following reasons.
1.
While
Respondent argues,
in Paragraph
8 of its Motion, that winterization of the
unit will soon take place
and that the system cannot operate once it is winterized, Complainants’
expert,
Greg
Zak,
has
informed
counsel
for Complainants
that
said
information
is
incorrect.
While it is
correct that you cannot run the compressors or water system, Respondent can still run
the fans.
And it is
the opinion ofMr. Zak that the fans make most ofthe noise,
and thus
are the
source of the violation to begin with.
Therefore,
the fans
can be run manually by a
technician
familiar with
the
units,
which
would
then
allow
Respondent
to
take
any
appropriate
noise
readings without the need
for
any
delay.
This
can be
done
in
October which
is
the time
that
Respondent states the remainder ofthe remedial measures will be completed.
Therefore, there is
no need to wait until next June to take the readings, as Complainants are confident that a reading
in October, when the fans alone are running at a normal speed, even without the compressors and
pipes running, will
show
a significant violation of the law when said readings are done
in strict
compliance with the rules and
regulations ofthe Pollution Control Board.
-2-
428116.1.11852.22239
2.
Complainants have complained about this noise for years, have attempted to reach
an
agreement with
Respondent, but
realize that
they need a court
order finding Respondent in
violation,
and
requiring
Respondent
to
come
into
compliance
in
order
to
obtain
the
desired
results.
3.
Finally,
Complainants’
expert,
Mr.
Zak,
believes
that
the
remedial
measures
described in
Paragraph
7(e),
“the insulation or perforated
steel and
insulation
noise
absorption
panels
for the
inside
walls of a
masonry
enclosure,
and
a
deflecting wooden
shield mounted
above the
8’5
masonry enclosure” will not have a significant effect on the problem.
To
allow for a
stay and
a delay in
these proceedings until next June would be
a
severe
injustice to
Complainants.
This would mean they would have to
endure yet another full season
ofincredible noise emanating from these high-powered air conditioning units, which are adjacent
to their property.
It would ruin yet another Spring/Summer, when there is no need for this
delay,
as the fans can be run manually at the present time, or even afler winterization; and Respondent
can
be
instructed
to
take
a
noise
measurement
similar
to
the
two
(2)
that
were
taken
by
Complainants,
in conformity with the rules
and regulations
ofthe Pollution
Control Board.
To
date, Respondent has failed to take any such proper noise measurements.
Finally,
Complainants
should not be penalized for Respondent’s failure to take a timely reading ofthe units.
WHEREFORE, COMPLAINANTS object to the granting of a stay in these proceedings,
as there is no
need
for such delay, and
as Respondent does have
an
opportunity to
conduct
its
own independent sound testing as explained immediately above in this response.
Complainants
respectfully request that the stay be denied and that Respondent be compelled to
comply with the
-3-
428116.1.11852,22239
Hearing Officer’s
discovery schedule,
so that this matter can move forward as opposed to
being
delayed, or g rant any other relief deemed just
and appropriate.
Respectfully submitted,
CHUHAK &
TECSON, P.C.
By:
&i~IJJ~A
itchell
S. Feinberg,
ttorne
o
Complainants
Mitchell S. Feinberg
CHIJHAK &
TECSON, P.C.
Attorney for Complainants
30 S. Wacker Drive
—
Suite 2600
Chicago, IL
60606
312-444-9300
Firm ID No. 70693
-4-
428116.1.11852.22239