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 compl

ain

t, you

, as the "complainant,"

star

t 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 commi

tt

ed a viola

tion.

Yo

ur forma

l complaint must s

p

ecifically

allege which provision of the following you believe the respondent has violated:

•

The Environmental Prot

ection Act (Act)

•

The Boa

rd's re

gulations

•

A Board order

•

A permit issued by the Illinois Environmental Protect

ion Agency (IEPA)

IEPA is not required to investigate your allegations.

The Board cannot prov

id

e

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

you

r 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 no

te

d, the person you a

re com

pl

ain

i

ng ab

out is ca

ll

ed the "

r

esponden

t." You

r

formal c

ompl

aint may ide

nt

if

y mo

re than one responde

nt

. Th

oug

h you "fil

e" a d

ocumen

t

w

i

t

h the Board's C

l

erk, you "

serve" tha

t doc

um

ent on eac

h respo

n

de

nt. Yo

uj

nust 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.

You must provide proof

(e.

g.

,

mail or messenger service receipt) to the C

lerk 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 certif

icate of

.

.

i

Electronic Filing - Received, Clerk's Office, August 1, 2008

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---

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 serv

ice later

.

Proof of service is required for all documents you file with the Board, not just th

e

formal complaint

.

Your fi

lings other than the formal complaint can but need not b

e

s

erved by registered mail, certified mail, messenger service, or personal serv

ice

.

F

o

r

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

r

espondent

. If you p

ersonally serve a respondent, you must file with the Board a sign

ed

and notarized affidavit stating who you served with a copy of the document and whe

re

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 III

. Adm. Code 101

.302, 101.304, 103) for mor

e information about

these filing and service requirements.

Board Accepting

Formal Complaint and Assigning

Hearing Officer

Once the Clerk's Office receives your formal comp

laint, and the proof of service

on each respondent, the Clerk will assign a docket number to your complaint an

d

schedule your complaint for initial review by the Board at a Board meeting. The Board

firs

t reviews a forma

l comp

laint 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 Boa

r

d's procedura

l rules (35 III. Adm. Code 1

01

.202).

"Duplicative" means that an identica

l or substantially similar case is already

pending before the Board or in court.

See

35 III. Adm. Code 103.212(a) and item 10 of

the forma

l comp

laint fo

rm.

"Frivol

ous" means that the complaint seeks relief that the /

Bo

ard does not have the authority to grant, or fails to state a cause of action upon which

the Board can grant relief.

See

35 III. Adm

. Code 103

.212(a) and items 5 and 9 of th

e

formal complaint form. For example

, the Board has the authority to order a re

spond

ent

to stop polluting and pay a fine, to implement pollution abat

ement measures, or to

perform a cleanup or reimburse cleanup costs

. The Board does not have the authority,

how

ever, to award attorney fees to a citizen complainant.

If the Board finds that a formal complaint is either duplicative or frivolous

•

, the

Boa

rd will dismiss the complaint and notify both you and each respondent of it

s

de

c

isi

on.

Under the Act, you may then seek relief from the alleged violation in th

e

circuit co

urt

(see

415 ILCS 5/45(b))

, or you may fi

le an appeal of the Board's decision

with t

h

e appellate court

(see

415 ILCS 5/41 (a))

.

If, however, the Board finds that a formal complaint is neither duplicative nor

frivolous, th

e Board will accept the case for hearing and assign a hearing officer. T

he

Electronic Filing - Received, Clerk's Office, August 1, 2008

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---

hearing off

icer will then contact the parties to schedule a hearing.

At hearing, the

complainant

must presen

t 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 III. Adrn. 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, 2008

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---

State of Illinois

Pollution Control Board

James R

. Thompso

n

Center

100 W

. Rando

lph Street

, Suite 11

-500

Chicago, Ill

i

no

i

s 60

601

http://www.ipcb

.

state.il

.

us/

FORMAL COMPLAINT

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

In The Matter Of:

v.

)

)

)

)

)

)

)

)

)

)

)

)

)

PCB 20

(F

o

r

Board use only)

Joseph & Victoria Morrissey

(In

sert your name(s) in the spa

ce abov

e

)

Complainant(s),

Geoff Pahios

Alpine Automotive

(In

sert name(s) of alleged poIJuter(s))

Respondent( s)

Note: If you donot 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

, y

ou may attach additio

nal

sheets, specifying the number of the item you are completing

.

Once complet

e

d, 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, 2008

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1.

Your Contact Information

Name:

Street Address

:

County:

State:

Phone Number:

Joseph & Victoria Morrissey

Hawthorn Woods

Lake

( 847 ) 726 -1377

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:

Street Address:

County:

State:

Phone Number:

Geoff Pahios (Owner Alpine Automotive)

Lake Zurich

Lake

( 847) 438 -7770

4

.

Describe the type of business or activity that you allege is causing or

allowing pollution

(e

.g.,

manufact

uring company, home repair shop)

and give the address of the po

llution source if different than the

address above

Alpine Automotive is an auto/truck repair, 24 hour towing

service and police impound facility. In 2007, Geoff Pahios

moved his business from the heart of the industrial park to a

new location adjacent to residential homes with the expressed

understanding that it would not have an adverse affect on the

residential community. Since the new property is not zoned for

outdoor storage or 24 hour towing, a special use permit had to

be approved by the village. Alpine Automotive is operating as

usual, but they are now adjacent to residential homes (less than

200 feet).

Electronic Filing - Received, Clerk's Office, August 1, 2008

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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

4151LCS

5/24

(formally III, Rev. Stat. 1991 Ch

1111/2,

Par. 1024)

3511I.Adm. Code. Subtitle H. Chapter I. Section 900.102

35 III. Adm. Code. Subtitle H. Chapter I. Section 901.102a

3511I.Adm. Code. Subtitle H. Chapter I. Section 901.102b

3511I.Adm. Code, Subtitle H. Chapter I. Section 901,104

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 Violation from the Alpine Automotive facility is both a

nuisance and a violation of existing noise laws by exceeding

decibel levels.

Noise violations are caused by 4 main sources;

1. 24 Hour Towing: Many police impounds are at night and

often on weekends. Heavy diesel trucks pull up. unhook

the vehicle, which involves very loud rattling of heavy

chains across a striated (furrowed) aluminum bed. The

engine is revved to lift the bed for the vehicle to be

removed and the engine is revved again to lower the bed.

The diesel engine noise is a constant throughout

the

entire process. Most tows are conducted in the rear space

between the Alpine building

and the homes, within a

cou Ie of hundred feet.

• Truck/Auto Re air: This is the bulk of the noise which is

caused

by

everyday

operations.

Impact

Wrenches.

Ratchets. Air Hammers. Grinders. Drills and Cutting Tools

are inherently loud. These noises are loud and sudden

sounds which can go on for minutes or hours. Work done

inside the building is bad enough, but sometimes the

work is done in the back lot between the homes and the

building. Sound echoes throughout the neighborhood.

3. Ventilation

Fan: The ventilation

system exhaust points

directly at the residential homes. Although shielding has

been hastily installed. the noise is still much like a small

jet engine pointed directly at the homes.

4. Engine noise: Trucks idle for long periods of time. in

some cases up to an hour.

Electronic Filing - Received, Clerk's Office, August 1, 2008

* * * * * PCB 2009-010 * * * * *

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7.

Describe the duration and frequency of the a

ll

eged pollution. Be as

sp

ecific as you re

aso

n

ably can about when you fir

st no

ticed th

e

a

l

l

eged pollu

tion, how frequently it occurs, and whethe

r it is sti

ll

co

ntinuing (include seasons of the year, da

tes, and ti

mes o

f day if

known

)

Alpine moved its operations to the e

xisting facility gradually in

the spring of 2007. We have tried our best to document the

noise and have hundreds of video clips with sound readings ...

1. Towing:

Towing

is part of regular operations

so i

t

happens on a daily/weekly basis during normal business

hours. The worst tows are the po

lice impounds which

take place mostly in t

he midnight to 3am timeframe and

usually on weekends. These happen year-round and

occur at leas

t several times a month.

2. Truck/Auto Repair: This is an everyday occurrence, but

gets worse as the weather gets warmer from early spring

to late fall. The Alpine facility is not air-conditioned so

this noise peaks during the summe

r mo

nths.

3. V

enti

l

ation

F

an: The f

an no

ise is worst in t

he ,

wi

nt

er

months when work is done with the doo

rs closed.

However, the comp

lainants' still hea

r the fan noise year

ro

und with no predictable pattern. Usually when the front

and rear bay doors are open, the fan is off, but it comes

on at random times often at early hours (before 7am) and

stays on until evening

.

4. Engine Noise: An everyday occurrence.

•

7

Electronic Filing - Received, Clerk's Office, August 1, 2008

* * * * * PCB 2009-010 * * * * *

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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

busin

ess or activity

The noise

from

Alpine

Automotive

has

egregiously

and

unreasonable interfered with the use of property and enjoyment

of life despite sworn statements from the owner of Alpine

Automotive t

hat "T

he proposed use and developme

nt of th

is

parcel will

have no adverse effects on the community

or

industrial park". The reality is that the complainant's lose sleep

at night, are awoken at early hours and are subjected to daily

irritating and infuriat

ing noise. The noise has caused a severe

drop in property value and has damaged the emotional health

and well being of the complainant's.

The use of the outdoor

property has been severely l

i

mited.

9

.

Describe the relief that you s

eek from the Board

(e.g.,

an order that

the respondent stop polluting, take pollution abatem

ent m

easur

es

,

perform a c

leanup, 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 expe

nses that y

ou

in

cur by pursuing an enforcement action»

•

Electronic Filing - Received, Clerk's Office, August 1, 2008

* * * * * PCB 2009-010 * * * * *

---

[

The solution to these issues are relatively straightforward and

the complainant's are only s

eeking to ab

ate the noise;

.

1.24 Hour Towing

: No towing vehicles to the rear of the

building.

2.Truck/Auto Repair: The IPCB should mandate that all

repair work should be done inside the facility with the

rear bay doors shut

. Simply closing the doors and

performing work inside eliminates the violation. Rear

bay doors should only be open when moving vehicles

and work should be restricted during times that the rear

doors are open .

• entilation Fan: This needs to be moved to the front of

the building away from the resi

dents.

4. Engine Noise: No idling of trucks in the back of the

building

5. Barrier: Alpine Automotive

removed trees and foliage

between the two properties which they had relied upon

to gain approval for the zoning variance. The 6ft chain

link fence should be replaced with a sound dampening

fence

.

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)

None known to complainants'

.

•

Electronic Filing - Received, Clerk's Office, August 1, 2008

* * * * * PCB 2009-010 * * * * *

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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 rep

resent 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.

)

Joseph and Victoria Morrissey are representing

themselves.

12.(C

~

g

~-----------------

--

--

CERTIFICATION

(optional but encouraged)

I,

OSEPr(

ffiO

!2elSSb ,

-

(

, on oath or affirmation,

sta

0:~

~:VD

r~:

thatit is accuratetothebestofmyknowledge.

(co

~

gn

atu

r

e)

G

Subscribed to and sworn before me

:sf

this,

_--

'--

~d,ay

1',.~

0

.....

!

.4

..

~~

---

,

20

68

"

OFFICIAL

SEAL

•

Donna Lobaito

Notary Public - State of I

l

l

i

no

i

s

Commissio

n 652306

~mmlsslon

Exp

ir

e

s: May 23, 2010

My commission expires:

10

Electronic Filing - Received, Clerk's Office, August 1, 2008

* * * * * PCB 2009-010 * * * * *

---

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 tak

e notice that today I filed with the Clerk of the Illinoi

s Pollution C

ontrol

Board (

Board) a formal compl

aint, a copy of which is served on you along with this

notice. You may b

e required to att

end a hearing on a d

at

e set by the Board.

-'

Informat

ion about the formal complaint process b

efore the Board is found in th

e

Environmental Protection Act (Act) (415 ILCS 5/1

et seq

.

)

and the Board's procedural

ru

les (35 I

II. Adm. Code 10

1 a

nd 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 r

ules.

It is prov

ided for gene

ral 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

T

h

e Board will not ac

c

ept th

is formal complaint for h

e

aring if the Board find

s th

at

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 procedura

l rules (35 III. Adm. Code

10

1.202).

"

Dup

licative" means that an identica

l or substant

ially simi

lar case is already

pending before the Board or in court

. See 35 III. Adm. Code 103.212(a) and item 10 of

the formal complaint

"Frivo

lous

" means that the formal complaint seeks rel

ief that the Board does no

t

h

ave the auth

ority to grant, or fails to state a cause of action u

pon which the B

oa

rd can

grant relief.

For example, th

e B

oa

rd h

as the authority to order a respondent to stop

pOlluting and pay a civil penalty, to implement pollution abatement mea

s

ur

es, or t

o

perform a cleanup or reimburse cleanup co

sts. The Board does not have the authority,

however, to award attorney fees to a cit

izen complainant

See 35 III

. Adm

. Code

103.212(a) and items 5 and 9 of the formal complaint.

If you believ

e that this formal compla

int is duplicative or frivolous, you may fil

e a

motion with the Board, within 30 days after the date you were served with th~ complaint,

requesting that the Board not accept the complaint for h

earing. The motion must state

th

e facts

s

upporting

your

b

elief that the complaint

is duplicative

or frivol

ous.

Memoranda, affidavits, and any other relevant documents may accompany the mo

t

ion.

If you ne

ed more time than 30 days to file a motion alleging that the complaint is

dup

lic

ative or frivolou

s, you mu

st file a motion for an extension of time within 30 day

s

aft

er service of the complaint.

A motion for an extension of time must stat

e why you

need more time and the amount of additional time you need.

Timely filing a motion

If

Electronic Filing - Received, Clerk's Office, August 1, 2008

* * * * * PCB 2009-010 * * * * *

---

alleging that the complaint is dup

licative or frivolous will stay the 60-day period for filing

an an

s

w

er to the complaint.

Se

e

35 III. Adm. Code 103.204, 103.212(b).

All motions filed with the Board's Clerk must include an original, nine copies, and

proof of s

e

rv

ice on the o

th

er pa

rti

es. S

ervic

e may be m

a

de in p

erson, by U.S. m

a

i

l

, or

by mess

enger service. Mail s

ervice is pr

es

um

ed comple

te four days a

ft

er m

ai

l

i

n

g.

See

35 III. 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 th

e

complaint was served on you, the Board may find that the complaint is not duplicat

ive 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 III

. Adm. Code 103.

21

2(a).

Answer to Complaint

You have the right to file an answer to this formal complaint within 60 days aft

e

r

you r

eceive the compl

aint

.

If you timely file a motion alleging that the compla

i

nt is

duplicative or frivolous, o

r a motion to strike, dismiss

, or challenge the suffici

e

ncy of the

complaint, then you may file an answer within 60 days after the Board rules on yo

u

r

motion

.

See

35111

.

Adm. Code 101.506, 103.

204(d),

(e),

103

.212(b)

.

The Board's procedural ru

les require the comp

lai

nant to te

ll you as respondent

t

hat

:

Failure to fi

le 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,

t

he Cl

erk's Office or an attorney. 35 III. Adm. Code 103.204(f).

Necessity of an Attorney

Under Illinois law, an a

ssociation, citi

zens group, un

it of local gove

rnment, or

corporation must b

e represented before the Board by an attorney

.

In addition, a

n

individual who is not an attorney cannot represent another ind

i

vidual o

r other individuals

before the Board

. However, even if an individual is not an attorn

ey, h

e or she is allowed

to represent (1) himself or herself as an individual or (

2) his or her unincorporated so

l

e

proprietorship.

See

35 I

II. Adm. Code 101.400(a). Such an individu

al may neverth

el

ess

wish to have an attorney prepare an answer and any motions or bri

efs, and prese

nt a

defe

nse at hea

ring

.

Costs

In defending against this formal complaint, you ar

e responsible for your att

orne

y

fees

, duplicating charges, travel expenses, witness fees, and any other costs that y

ou or

Electronic Filing - Received, Clerk's Office, August 1, 2008

* * * * * PCB 2009-010 * * * * *

---

your attorney may incur.

The Board requires no filing f

ee to file your answer or a

ny

other document with the Board.

The Board will pay any hearing costs

(e.g

.

,

hearing

room rental, court reporting fees, hearing officer expe

nses).

If you have any questions

, please con

tact the C

le

rk's O

ffice at (312) 814-3

629 .

•

>

-

-

13

r

Electronic Filing - Received, Clerk's Office, August 1, 2008

* * * * * PCB 2009-010 * * * * *

---

CERTIFICATE OF SERVICE

I, the undersigned, on oath or affirmation, state that on

, 20

,

I served the attached formal complaint and notice on the responde

nt by

Y

certified mail (attach copy of receipt if available,

~

otherwise you must fi

le receipt later with Clerk)

registered mail (attach copy of receipt if availabl

e,

otherwise you must fi

le receipt later with Clerk)

---

J

messenger service (attach copy of receipt if available,

___

otherwise you must file receipt later with Clerk)

persona

l

service

(attach

affidavit

if

available,

-

otherwise you must file affidavit later with Clerk)

--

at the address below:

RESPONDEN

T'S ADDRESS:

Na

m

e

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