RECEIVED
CLERKS OFFICE
MAR 0
7
2008
Pollution
STATE OF
Control
ILLINOISBoard
State of Illinois
POLLUTION CONTROL
BOARD
JAMES
R.
THOMPSON CENTER
100 W.
—
R A
NDOLPH STREET, SUITE
11-500
CHICAGO, ILLINOIS
60601
FORMAL COMPLAINT
BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
_Kyle Nash
(Insert your name(s) on lines
above).
Complainant(s),
PCB
01
sql
Louie Jimenez
(For Board use)
(Insert name(s) of alleged polluter(s)
on lines above),
Respondent(s).
Reerrals
1-800-379-5105
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Your name, street address.
county,
Kyle
state:
Nash
1630 W Place,
Chien
.0
Cook County
Illinois
Phone:
Place where you can be
contacted during normal
business hours (if different
from above):
Phone:
3.
Name and address of respondent Louis
Jimenez
(alleged polluter):
1628 W. 33rd Place
Chicago, Illinois
60608-6202
Phone: 773.847.3766
(if known)
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:
Residential wind chimes.
List specific sections of the Environmental Protection Act. Board regulations. Board
order, or permit that you allege have been or are being violated:
TITLE VI. NOISE
Noperson
Section,24
shall
Acts
emit
Prohibited
beyond the
boundaries
of his property any noise that unreasonably
interferes with the enjoyment of life or with any lawful business or activity,
so as
to
violate any regulations or standard adopted by the Board under this Act.
Section 900.102 Prohibition of Noise Pollution
No person shall cause or allow the emission of sound beyond the boundaries of his property, as
property is defined in Section 25 of the Illinois Environmental Protection Act, so as to cause
noise pollution in Illinois, or so as to violate any provision of this Chapter.
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:
Source: Wind Chimes (metal)
Size: A number of different windchimes, ranging in size from about two and one
half (2.5) feet in length to about twelve (12) inches in length.
Location: These windchimes have variably been hanging on the front porch and/or in the back
yard. The houses in our neighborhood, including both houses involved in this matter are only
about six (6) feet apart. These neighbors have air conditioning-their windows are closed all year.
As we cannot afford air conditioning, our windows are open 6 months out of 12. However, these
windchimes can be heard even when our windows are fully shut during the winter months.
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):
Over the years, we have experienced any number of difficult 24/7 noise problems with
these neighbors. The first documented incident was in 1997.
As best I can recall, the initial set of wind chimes was audible on their front porch in
August of 2004. At some point (1 don't recall the date), that set of wind chimes was
moved 24/7 into their backyard. Another set of wind chimes was then hung 24/7 on
their front porch.
Whenever there is any kind of breeze noise can be heard. At those times, the noise can
be heard incessantly 24 hours a day often for days and days at a time. There may then
be a break of a day or so when there is no breeze but soon the noise begins all over
again. The windchimes remain up 365 days of the year.
Describe 9ry bad
e
f
fects
that
you believe the &Jilted
pCi ll
.ution
has or h9s had on
human health, on plant or animal
life, on
the environment,
on
the enjoyment
of
life or
property, or
on any
law cill business or activity:
The negative effects my two sons and I experience include, but are not limited to: pain and hearing fatigue; exacerbated hearing
impairment problems including tinnitus; annoyance and interference with regular social behavior (e.g., increased irritation, agitation,
anxiety, frustration, and helplessness); interference with speech communication; sleep disturbance and the attendant consequences
of that on both long and short term bases; cardiovascular effects including heart palpitations and higher blood pressure; gastric,
digestive, and nutrition problems, negative hormonal responses (i.e., increased stress hormones) and their consequences on
metabolism and the immune system (e.g. headaches, nausea, increased illness); cognitive problems including loss of concentration
and memory difficulties; increased sense of alienation and hopelessness; and decreased performance and loss of productivity at work
and school. (My older son and I work out of our home; my younger son is a college student who studies at home.)
My sons and I have experienced a marked loss of enjoyment of our lives and enjoyment of our property. As a result of this noise
pollution, we often don't want to come home anymore, we don't like being in our home when we are there, and we don't any longer
enjoy the neighborhood we've lived in and loved for almost 20 years now.
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)):
I
am seeking an order that the.
111111'11
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IS te
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):
I
have no knowledge
of
any identical or similar cases as described above. except
PCB
07-97
State whether you arc 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 am representing yself as an
individual.
I
am not an attorney.
I 2.
(Complainant signature)
CERTIFICATION (optional but encouraged)
Kyle Nash ?
, on oath
or affirmation, state that I have read the foregoing and that it is accurate to the best of my
knowledge.
(Complainant signat
Subscribe to and sworn before me
this
?
day
orika-A4S–
?
20n
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e
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►
Notary Public
My commission expires:
OFFICIAL SEAL
CARMEN PIERZCHALSKI
NOTARY PUBLIC - STATE OF ILLINOIS
__MY.COMIASSiON-EXPIRES:08/19/09
e)
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 l 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 he required to attend a hearing on a date set by the Board.
Infonnation 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 III. Adm. Code 101 and 1031. These can he accessed at the Board's Web site
(www.ipeb.state.d.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 infix-national 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 III. Adm. Code I03.212(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 tile 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. Timel
y
filing a motion alleging that the complaint is duplicative
or frivolous will stay the 60-cla
y
period for tiling an answer to the complaint.
See
35 III.
Adm. Code 103.204, 103.2 I 2(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 III.
Adm. Code 101.300(e), 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 ease 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 afteryou
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 III.
Adm. Code 101.506, 103.204(d), (e), I 03.212(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. ff 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(t).
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 III. Adm. Code I01.400(a). Such an individual may nevertheless wish to have an
attorney prepare an answer and any
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 tiling fee to tile 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.
Complainant-C /
?
a ure
CERTIFICATE OF SERVICE
I, the undersigned, on oath or affirmation, state that on (month, day, year)
March 7
,
900/1 ?
, I served the attached formal complaint and notice on
the respondent by: (check appropriate line)
X certified mail (attach copy of receipt if available, otherwise you must
file receipt later with Clerk)
Copy of the receipt is attached.
?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 ?
Louis Jimenez
Street
?
1628 W. 33rd Place
City, state, zip code
?
Chicago. Illinois 60608-6202
(list each respondent's name and address if multiple respondents)
Street 1630 W. 33rd Place
VjN-
City, state, zip code Chicago, Illinois 60608-6902
Subscrib to and sworn befhre me
this?
day
of?
C4A4a:
20005'
&VIA
/
Notary Pub Cc
My commission expires:
OFFICIAL SEAL
CARMEN PIERZCHALSKI
NOTARY PUBLIC - STATE OF ILLINOIS
MY COMMISSION EXPIRES:08/19109
See Re
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CHICAGO IL 60608
41.14
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Sincerely, Kyle Nash
Homeowner
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