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Rocke v. Pollution Control Bd.

OPINION FILED OCTOBER 18, 1979.

VERVA ROCKE ET AL., PETITIONERS,

v.

THE POLLUTION CONTROL BOARD ET AL., RESPONDENTS.



PETITION for review of order of Pollution Control Board.

MR. JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:

Petitioners appeal from a final order entered by respondent, the Illinois Pollution Control Board (Board), striking counts II, IV, V, and VI of petitioners' amended complaint pursuant to section 31(b) of the Environmental Protection Act (Act) (Ill. Rev. Stat. 1977, ch. 111 1/2, par. 1031(b)), and the Board Procedural Rules. We affirm.

Petitioners, Verva Rocke, Marilyn Crince, and Thomas G. Buddell, are residents of Hazel Crest, Illinois. At the time the complaint was filed, two of the respondents, the County of Cook and the Cook County superintendent of highways, Richard Golterman, were involved in construction activities for the widening of Kedzie Avenue between 171st and 175th Streets, and between California and Kedzie Avenues on 175th Street, in Hazel Crest. Verva Rocke and Thomas G. Buddell are adjoining landowners to the highway undergoing construction.

On January 20, 1978, petitioners filed a formal citizens' complaint with the Board alleging numerous violations of the Act (Ill. Rev. Stat. 1977, ch. 111 1/2, par. 1001 et seq.) and the Illinois Constitution. The Board scheduled the matter for a hearing to be held on February 16, 1978, to determine whether the complaint was frivolous or duplicitous under Board Procedural Rule 306(b) (Rule 306(b)). An amended complaint was filed and, on March 16, 1978, the Board set counts I and III for a hearing. Subsequently, petitioners withdrew those two counts. Counts II, IV, V, and VI were stricken on the pleadings as being duplicitous and frivolous.

The question for review is whether the Board acted properly in striking counts II, IV, V, and VI of petitioners' amended complaint as being duplicitous and frivolous.

Petitioners argue that the Board acted improperly in striking the four counts because the Act, as well as Rule 306(b), entitles them to a hearing. The Act provides:

"Unless the Board determines that such complaint is duplicitous or frivolous, it shall schedule a hearing * * *." (Ill. Rev. Stat. 1977, ch. 111 1/2, par. 1031(b).)

Rule 306(b) provides:

"If the Board rules that the complaint is not duplicitous or frivolous * * *, the Chairman shall designate a Hearing Officer and the Clerk shall notify the parties of such designation." (Illinois Pollution Control Board Regulations (P.C.B. Regs.), ch. 1, Rule 306(b).)

Petitioners argue that the amended complaint was not duplicitous or frivolous, citing Winnetkans Interested in Protecting the Environment (WIPE) v. Pollution Control Board (1977), 55 Ill. App.3d 475, 370 N.E.2d 1176. In WIPE, the court interpreted the terms, duplicitous and frivolous. It stated:

"[I]n League of Women Voters v. North Shore Sanitary Dist. (1970), 1 Ill. P.C.B. Op. 35, 36 * * * the Board stated that the reason for the prohibition of duplicitous complaints is the apprehension that private citizens' complaints `might flood the Board with too many cases raising the same issue and [might] unduly harass a respondent.' Webster's Third New International Dictionary 702, 703 (1971) defines `duplicitous' as `showing duplicity.' `Duplicity' is defined in part as `the quality or state of being double or twofold * * * the use of two or more distinct allegations or answers where one is sufficient: pleading double * * *.'

[A] frivolous pleading is one that is either legally or factually deficient." (WIPE, 55 Ill. App.3d 475, 479-81.)

Respondents contend that petitioners' amended complaint was frivolous. It was, according to respondents, both factually and legally deficient.

In substance, the four counts before us alleged ...


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