TITLE 35: ENVIRONMENTAL PROTECTION

Section 166.101 Purpose
Section 166.110 Applicability
Section 166.120 Definitions
Section 166.130 Notice
Section 166.140 Hearing Officer
Section 166.150 Hearing Board
Section 166.160 Conduct of Hearing
Section 166.170 Questions
Section 166.180 Contents of the Record
Section 166.190 Access to the Record
Section 166.191 Closure of the Record
Section 166.192 Contents of Responsiveness Summary
Section 166.193 Severability
Section 166.201 Purpose
Section 166.202 Applicability
Section 166.203 Definitions
Section 166.210 Commencement of a Contested Case Permit Hearing
Section 166.220 Notice
Section 166.221 Form of Documents
Section 166.222 Filing of Documents
Section 166.223 Service of Documents and Proof of Service
Section 166.224 Motions
Section 166.225 Computation of Time
Section 166.226 Pre-Hearing Conferences
Section 166.227 Discovery
Section 166.228 Admissions
Section 166.230 Hearing Officer
Section 166.235 Intervention
Section 166.240 Conduct of the Hearing
Section 166.250 Rules of Evidence
Section 166.255 Burden of Proof
Section 166.260 Testimony and Cross-Examination of Witnesses
Section 166.265 Testimony and Cross-Examination of Witnesses
Section 166.270 Records in Other Proceedings
Section 166.275 Documentary Evidence
Section 166.276 Exhibits
Section 166.280 Transcript of Hearing
Section 166.285 Proposed Finding of Fact and Conclusions of Law
Section 166.290 Proposal for Decision
Section 166.291 Contents of the Record
Section 166.292 Decision in Contested Case
Section 166.295 Sanctions
Section 166.296 Ex parte Consultations
Section 166.297 Right to Legal Counsel

TITLE 35: ENVIRONMENTAL PROTECTION

SUBTITLE A: GENERAL PROVISIONS

CHAPTER II: ENVIRONMENTAL PROTECTION AGENCY


PART 166
PROCEDURES FOR PERMIT AND CLOSURE PLAN HEARINGS


SUBPART A: INFORMATIONAL PERMIT AND
CLOSURE PLAN HEARINGS

Section
166.101 Purpose
166.110 Applicability
166.120 Definitions
166.130 Notice
166.140 Hearing Officer
166.150 Hearing Board
166.160 Conduct of Hearing
166.170 Questions
166.180 Contents of the Record
166.190 Access to the Record
166.191 Closure of the Record
166.192 Contents of Responsiveness Summary
166.193 Severability

SUBPART B: CONTESTED CASE PERMIT HEARINGS

Section
166.201 Purpose
166.202 Applicability
166.203 Definitions
166.210 Commencement of a Contested Case Permit Hearing
166.220 Notice
166.221 Form of Documents
166.222 Filing of Documents
166.223 Service of Documents and Proof of Service
166.224 Motions
166.225 Computation of Time
166.226 Pre-Hearing Conferences
166.227 Discovery
166.228 Admissions
166.230 Hearing Officer
166.235 Intervention
166.240 Conduct of the Hearing
166.250 Rules of Evidence
166.255 Burden of Proof
166.260 Testimony and Cross-Examination of Witnesses
166.265 Official Notice
166.270 Records in Other Proceedings
166.275 Documentary Evidence
166.276 Exhibits
166.280 Transcript of Hearing
166.285 Proposed Finding of Fact and Conclusions of Law
166.290 Proposal for Decision
166.291 Contents of the Record
166.292 Decision in Contested Case
166.295 Sanctions
166.296 Ex parte Consultations
166.297 Right to Legal Counsel

AUTHORITY: Implementing and authorized by Section 4 of the Environmental
Protection Act (Ill. Rev. Stat. 1985, ch. 111-1/2, par. 1004) and Section
5-10(a)(1) of the Illinois Administrative Procedure Act (Ill. Rev.
Stat.,1991, ch. 127, par. 1005-10(a)(1)).

SOURCE: Adopted and codified at 7 Ill. Reg. 7084, effective June 15, 1983;
old Part repealed, new Part adopted at 11 Ill. Reg. 16550, effective
October 15, 1987.

SUBPART A: INFORMATIONAL PERMIT AND
CLOSURE PLAN HEARINGS

Section 166.101 Purpose

This Subpart is intended:
a) to set forth the practice and procedures to be followed by the
Illinois Environmental Protection Agency (Agency) in conducting
informational permit and closure plan hearings;
b) to provide opportunity for the public to understand and comment on
permit and closure plan applications and associated actions of the
Agency;
c) to establish procedures by which the Agency consults interested or
affected segments of the public;
d) to enable the Agency to fully consider and respond to public
concerns;
e) to encourage cooperation between the Agency and other governmental
bodies;
f) to foster openness among the Agency, other governmental bodies and
the public; and
g) to comply with State and federal requirements.

Section 166.110 Applicability

This Subpart sets forth the procedures to be followed by the Illinois
Environmental Protection Agency in informational hearings which concern
applications for permits and for the approval or amendments of closure
plans submitted to the Agency under the provisions of 35 Ill. Adm. Code
725.

Section 166.120 Definitions

a) Unless defined in Subsection (b) of this Section, words shall have
the meaning as defined in Section 3 of the Environmental
Protection Act (Ill. Rev. STat. 1985, ch. 111-1/2, par. 1003);
b) The following definitions shall apply to this rulemaking:

"Applicant" means a person who applies for a permit.

"Closure Plan" means a plan or amendment to plan to close a
hazardous waste facility as required under 35 Ill. Adm. Code
725.

"Director" means the Director of the Illinois Environmental
Protection Agency.

"Hearing" means a proceeding which is held after notice to
interested persons in which testimony is taken by oath or
affirmation and a verbatim record of all testimony is kept.

"Hearing Officer" means a person duly designated by the
Director to preside over a hearing.

"Informational Hearing" means a hearing which is not required
by law to be held, but which is held for the purpose of
informing he public of a proposed Agency action or when the
Agency wished to gather information or comments from the
public prior to making a final decision on a matter.

"Interested person" means any person who may be affected by
the outcome of the permit or closure plan decision.

"NPDES" means the National Pollutant Discharge Elimination
System for issuing, establishing conditions for, and denying
permits under the Federal Water Pollution Control Act, as
amended, (33 U.S.C. 1342) and its implementing regulations.

"Permit" means permission or authorization granted by the
Agency, to construct, alter, extend, or operate any air
pollution source or control equipment, waste water treatment
works, landfill, public water supply, or other facility
including their appurtenances and equipment pursuant to
Pollution Control Board rules.

Section 166.130 Notice

a) Notice shall be placed in a public newspaper in the area in which
the facility for which the permit or closure plan is requested is
located or as otherwise required by law.
b) Notice shall be published once weekly for three successive weeks,
and the first notice of a hearing shall be given at least 45 days
before the date of the hearing.
c) A copy of the Notice and the closure plan or proposed permit and
fact sheet shall be mailed to:
1) The State's attorney of the county in which the facility is
located;
2) The Chairman of the County Board of the county in which the
facility is located;
3) Each member of the General Assembly from the legislative
district in which the facility is located;
4) The chief executive officer and the clerk of each
municipality, any portion of which is within three miles of
the facility;
5 Persons on a mailing list developed by the Agency which
includes those who requested in writing to be included on
such a list; and
d) The notice shall include the following information:
1) The date, time, and place of the public hearing;
2) The purpose of the hearing;
3) The name and address of each permit or closure plan applicant
and the location or address of the facility for which the
permit or closure plan is sought;
4) The type of permit sought and the applicable federal and
state regulations which require or authorize the granting of
such permit or closure plan by the Agency;
5) A brief description of the activities or operations at the
facility for which the permit is requested;
6) Identification of the Agency Division sponsoring the hearing,
and any other sponsor if the hearing is jointly sponsored;
7) The name of any waterway to which any discharge is to be made
and a short description of the location of each such
discharge on the waterway under any proposed NPDES permit, if
applicable;
8) A statement of issues to be considered;
9) The name, address and telephone number of the Agency contact
person from whom additional information regarding the hearing
may be obtained;
10) A statement of applicable Pollution Control Board rules which
govern the issuance of the permit or closure plan which is
the subject of the hearing.

Section 166.140 Hearing Officer

a) The Hearing Officer shall be designated by the Director of the
Agency.
b) The Hearing Officer shall have all authority necessary to conduct
a fair and orderly hearing including, but not limited to, the
power to:
1) Schedule the hearing;
2) Require prior submission of expert testimony and written
exhibits;
3) Require participants to state their position with respect to
the issuance of the permit;
4) Administrator oaths and affirmations;
5) Examine witnesses to clarify testimony;
6) Rule on the admissibility of evidence offered;
7) Require persons who testify to do so under oath;
8) Establish the time for making written submissions and closure
of the record; and
9) Continue a hearing from day-to-day or adjourn it to a later
date, after considering the availability of the hearing
location and the wishes of the participants.

Section 166.150 Hearing Board

a) When conducting NPDES permit hearings or whenever necessary to
provide advice due to the complexity of the issues involved in the
hearing the Director shall designate a Hearing Board to assist the
Hearing Officer in the conduct of the hearing, to give the Hearing
Officer necessary technical and legal advice and to solicit
information for the Agency's decision from the hearing
participants.
b) The Hearing Officer shall chair the Hearing Board.
c) Hearing Board members may question any witness during the course
of the hearing.
d) Hearing Board members shall provide specialized, and technical
advice within their expertise to assist the Hearing Officer, as
necessary with any report or recommendation which the Hearing
Officer may be required to submit with respect to the hearing.

Section 166.160 Conduct of Hearing

a) The Hearing Officer shall make an opening statement which shall
include the following points:
1) The purpose of the hearing;
2) Issues involved in the permit decision to be made by the
Agency;
3) Proposed Agency action or draft permit;
4) Tentative date of final decision; and
5) A statement as to what form of questioning in permitted under
this Subpart.
b) The Hearing Officer shall allow relevant statements by any person.
c) The Hearing Officer shall admit relevant written statements and
exhibits into the record.
d) The Hearing Officer may make a closing statement and shall set a
date when the hearing record will close.

Section 166.170 Questions

The Hearing Officer shall allow relevant questions by any person who makes
a statement at the hearing.

Section 166.180 Contents of the Record
The Hearing Officer shall prepare a record of each hearing held under the
provisions of these rules.
a) Hearings may be recorded and transcribed by a court reporter who
will provide a copy of the transcript for the record. Copies of
the transcript may be obtained from the court assessed in
accordance with Access to Information of the Illinois
Environmental Protection Agency (35 Ill. Adm. Code 160).
b) If not recorded and transcribed by a court reporter hearings shall
be tape-recorded by the Agency. On request of any person copies
will be provided with costs assessed in accordance with Access to
Information of the Illinois Environmental Protection Agency (35
Ill. Adm. Code 160).
c) The hearing record shall include:
1) A copy of the permit or closure plan application;
2) A copy of all notices issued pursuant to the permit review
process;
3) A copy of the draft permit or closure plan, if any;
4) A copy of the fact sheet, if any;
5) A copy of the transcript, all written statements submissions
and exhibits;
6) A list of all persons who made written or oral statements or
provided written submissions and exhibits;
7) A copy of any report or recommendation made by the Hearing
Officer or Hearing Board; and
8) A copy of the responsiveness summary.

Section 166.190 Access to the Record

Any person may inspect and copy the hearing record pursuant to Access to
Information of the Illinois Environmental Protection Agency (35 Ill. Adm.
code 160).

Section 166.191 Closure of the Record

Unless the Hearing Officer provides otherwise, the hearing record shall be
closed 30 days after the date of the last hearing. THe comment period may
be extended upon good cause shown or by agreement of the parties, however,
statutory time limitations of Title X (Section 39 though 40.1) of the
Environmental Protection Act shall take precedence over any extension of
the comment period.

Section 166.192 Contents of Responsiveness Summary

a) Responsiveness summary shall be prepared by the Agency. The
responsiveness summary shall include:
1) An identification of the public participation activity
conducted;
2) Description of the matter on which the public was consulted;
3) An estimate of the number of persons present at the hearing;
4) A summary of all the views, significant comments, criticisms,
and suggestions, whether written or oral, submitted at the
hearing or during the time the hearing record was open;
5) The Agency's specific response to all significant comments,
criticisms, and suggestions; and
6) A statement of Agency action, including when applicable the
issuance or denial of the permit or closure plan.
b) The responsiveness summary shall be available to the public upon
request to the Agency.

Section 166.193 Severability

If any portion of Subpart A of this Part is for any reason held to be
unconstitutional or violative of law by a court of competent jurisdiction,
such decision shall not affect or impair the validity of the remaining
portion of this Subpart A.

SUBPART B: CONTESTED CASE PERMIT HEARINGS

Section 166.201 Purpose

This Subpart is intended:
a) to set forth the practice and procedures to be followed by the
Illinois Environmental Protection Agency in conduction contested
case permit hearings, and;
b) to comply with the purpose and intent of the Illinois
Administrative Procedure Act (Ill. Rev. Stat. 1991, ch. 127, par.
1001-1 et seq.) in conducting contested case permit hearings.

Section 166.202 Applicability

This Subpart shall apply to all hearings held by the Agency in contested
case permit hearings.

Section 166.203 Definitions

"Agency" is the Illinois Environmental Protection Agency.

"Appearance" means a formal written application to the Agency
Hearing Officer, with the name, address, and telephone number
of interested person or his/her attorney requesting to be
made a party in the matter.

"Applicant" means a person who initiates an action requiring
a contested case permit hearing.

"Business" includes business, profession, occupation, and/or
calling of every kind.

"Contested Case" means an adjudicatory proceeding, not
including rate making, rule-making, quasi-legislative,
informational or similar proceedings, in which the individual
legal rights, duties or privileges of a party are required by
law to be determined by an agency only after an opportunity
for a hearing. (Section 3.02 IAPA) This does not include
Agency procedures for permit hearings held pursuant to
Subpart A of this Part.

"Director" means the Director of the Illinois Environmental
Protection Agency.

"Hearing" means a proceeding which is held after notice to
interested persons or parties, in which testimony is taken by
oath or affirmation and a verbatim record of all testimony is
kept.

"Hearing Officer" means a person duly designated as a Hearing
Officer by the Director to preside over the hearing.

"IAPA" means the Illinois Administrative Procedure Act.

"Interested person" means any person who may be adversely
affected by the outcome of a hearing.

"Party" may be an Applicant or Respondent.

"Permit" means permission or authorization granted by the
Agency to construct, alter, extend, or operate any air
pollution source or control equipment, waste water treatment
works, landfill, public water supply, or other facility
including their appurtenances and equipment pursuant to
Pollution Control Board rules.

"Person" means any individual, partnership, co-partnership,
firm, company, corporation, association, joint stock company,
trust, estate, political subdivision, federal or state
agency, or other legal entity, or their legal representative,
agent or assigns.

"Respondent" means an interested person who has filed
appearance with the Agency Hearing Officer to participate in
hearing proceedings.

"State" means the State of Illinois.

Section 166.210 Commencement of a Contested Case Permit Hearing

In cases where the Agency is required by Section 39 of the Environmental
Protection Act to hold an adjudicatory proceeding concerning a permit
application required by law to be determined by the Agency only after
notice and the opportunity for a hearing, the Director shall order the
Agency Hearing Officer to hold a contested case hearing under the
provisions of this Subpart.

Section 166.220 Notice

a) Notice of permit hearing shall be placed in a public newspaper of
general circulation in the area in which the facilty for which the
permit is requested is located or as otherwise required by law.
b) Notice shall be published once weekly for three successive weeks,
and the first notice of a hearing shall be given at least 45 days
before the date of the hearing.
c) A copy of the Notice and the proposed permit and fact sheet shall
be mailed to:
1) The State's attorney of the county in which the facility is
located;
2) The Chairman of the County Board of the county in which the
facility is located;
3) Each member of the General Assembly from the legislative
district in which the facility is located;
4) The chief executive officer and the clerk of each
municipality, and portion of which is within three miles of
the facility;
5) Persons on a mailing list developed by the Agency which
includes those who requested in writing to be included on
such a list and to all persons who have provided comments or
testimony at any previous informational hearing regarding the
subject permit application; and
d) The notice shall include the following information:
1) The date, time, and place of the public hearing;
2) The purpose of the hearing;
3) The name and address of each permit applicant and the
location or address of the facility for which the permit is
sought;
4) The type of permit sought and the applicable federal and
state regulations which require or authorize the granting of
such permit by the Agency;
5) A brief description of the activities or operations at the
facility for which the permit is requested;
6) Identification of the Agency Division sponsoring the hearing;
7) A statement of issues to be considered;
8) The name, address and telephone number of the Agency Hearing
Officer, to whom appearances may be sent or from whom copies
of the rules may be obtained.
9) A statement of applicable rules under which the permit
hearing will be conducted.

Section 166.221 Form of Documents

a) Except for exhibits, documents shall be typewritten or printed.
b) Except for exhibits, documents shall be cut or folded so as not to
exceed a width of 8-1/2 inches and a length of 11 inches.
Whenever practical, all exhibits of a documentary character shall
conform to these requirements.
c) Documents shall clearly show the file or docket number of the
proceeding and shall clearly describe their nature, e.g.,
"Motion," "Appearance," etc.
d) Pleadings, written motions, and appearances shall be dated and
signed and shall contain the name, address and telephone number of
the party filing the document or, if represented by an attorney,
the name, business address and phone number of such attorney.

Section 166.222 Filing of Documents

a) All documents required to be filed with the Hearing Officer shall
be addressed to the Hearing Officer at the following address:
Illinois Environmental Protection Agency
2200 Churchill Road
Springfield, Illinois 62706
Attention: Agency Hearing Officer
b) The date that a document is filed for the record is the date the
document is mailed to or personally served upon the Hearing
Officer.

Section 166.223 Service of Documents and Proof of Service

a) Service of pleadings, motions or other documents shall be made by
personal delivery or by certified mail. One copy shall be served
to each party who has filed an appearance and to the Hearing
Officer with proof of service.
b) Proof of service shall be filed with the Hearing Officer before
action will be taken on any pleading.
c) The proof of service shall show the date, time and manner of
service any may be by written acknowledgement of service, by
certificate of the person effecting the service, or by certified
mail with a return receipt.
d) Service by certified mail is complete upon receipt or returned as
refused. The time for any response shall commonce seven (7) days
after receipt or refusal.
e) The Hearing Officer shall maintain a service list of the names and
addresses of all parties and interested persons.

Section 166.224 Motions

a) Unless made during a hearing or a pre-hearing conference, motions
shall be made in writing, and shall set forth the relief or order
sought and shall be served on all other parties of record.
Motions based on a matter which does not appear on record shall be
suppported by affidavit. Motions shall be ruled upon the day of
such hearing or prior to such hearing after the period of response
in subsection (a).
b) Written motions shall be titled as to the party making the motion
and the nature of the relief sought. Such title shall be in
capital letters and shall be placed either below the caption or to
the right of the caption beneath the docket number.
c) Amendments to all pleadings and motions shall be allowed upon
proper motion in accordance with subsection (a) at any time during
the proceeding.
d) Any party to a hearing may respond to any motion. Responses shall
be in writing and shall be filed within ten (10) days of service
of the motion.

Section 166.225 Computation of Time

Computation of time shall begin with the first business day following the
day on which the act, event or development initiating such period of time
occurs. Time shall run until the end of the last day or the next following
business day if the last day is Saturday, Sunday or legal holiday. Where
the permit of time is five days or less, Saturdays, Sundays and legal
holidays shall always be excluded in the computation of time.

Section 166.226 Pre-Hearing Conferences

a) A pre-hearing conference may be scheduled at the Hearing Officer's
discretion or at the request of any party whenever any of the
purposes listed below would be effectuated. This conference shall
be for the purpose of considering:
1) The setting of the date, time and location of the hearing.
2) The simplification of issues of fact and law;
3) The necessity or desirability of amending pleadings or
documents for the purpose of clarification, amplification, or
limitation;
4) The possibility of making admissions of fact or stipulations
concerning the foundation for testimony or exhibits or use of
matters of public record, to avoid unnecessary introduction
of proof;
5) The limitation of the number of witnesses, including experts;
6) The usefulness of prior mutual exchange between or among
parties of prepared testimony and exhibits; and
7) Such other matters as may aid in the simplifications of the
evidence and disposition of the proceeding.
b) After a pre-hearing conference, the Hearing Officer shall provide
all parties with a statement which recites:
1) Any ruling on motions or other action taken by the Hearing
Officer;
2) Any agreements made by the parties as to any of the matters
considered; and
3) Those issues remaining for hearing.
c) A certified court reporter may be present to transcribe the
proceedings at a pre-hearing conference. All costs related to the
court reporting services shall be borne by the party requesting
such service.

Section 166.227 Discovery

a) Regarding any matter not privileged under Sections 7 and 7.1 of
the Environmental Protection Act (Ill. Rev. Stat. 1985, ch.
111 1/2, pars. 1007 and 1007.1), the Hearing Officer shall order
discovery upon written request of any party. Subject to the
requirements of this section, the Hearing Officer may order:
1) The production of the names and addresses of persons having
knowledge of relevant facts;
2) The production of the names and addresses of all witnesses
whom the party intends to call at the hearing and the subject
matter of their expected testimony;
3) The taking of a deposition of any witness, including expert
witnesses, expected to testify at the hearing;
4) The answering of the interrogatory or request to admit of any
party; and
5) The production of evidence within the control or possession
of any party for the purposes of inspection, copying or
duplication.
b) The inadmissability of the testimony at the hearing is not a
ground for objection if the information sought appears reasonably
calculated to lead to the discovery of admissable evidence or is
relevant to the subject matter involved in the pending action.
c) At any time the Hearing Officer may on his own initiative, or on
motion of any party or witness, examine documents in camera in
order to resolve disputed privilege questions or issue a
protective order to deny, limit, condition or regulate discovery
to prevent unreasonable delay, expense, harassment, or oppression,
or to protect materials from disclosure by the party obtaining
such materials consistent with the provisions of Sections 7 and
7.1 of the Environmental Protection Act (Ill. Rev. Stat. 1985, ch.
111 1/2, pars. 1007 and 1007.1).
d) All depositions and interrogatories taken pursuant to this rule
shall be for purposes of discovery only, except as herein
provided.
1) The depositions and interrogatories may be used for purposes
of impeachment and as admissions of the deposed or
interrogated party.
2) Any party who has reason to believe that any potential
witness will not be available for testimony at the hearing
shall promptly so notify all other parties, and may move that
an evidence deposition be taken. A motion for an evidence
deposition shall be granted when, under circumstances such as
hospitalization and unavoidable absence from the State, the
Hearing Officer determines that the witness will not be able
to testify at the hearing. An evidence deposition shall be
presided over by the Hearing Officer. The party shall in the
Notice of Deposition designate the deposition as an evidence
deposition. If a discovery deposition is desired, it shall
be taken before the evidence deposition, unless the parties
stipulate otherwise. The notice, order, or stipulation to
take a desposition shall specify whether the deposition is to
be a discovery deposition or an evidence deposition. In the
absence of such a specification a deposition is a discovery
desposition only.
e) Upon transcription of the deposition, it shall be made available
to the deponent for examination and signature, unless examination
and signature are waived by the deponent. Any changes in form or
substance which the deponent desires to make shall be entered upon
the deposition by the court reporter with a statement of the
reasons given by the deponent making them. The deposition shall
then be signed by the deponent unless the deponent is ill or
cannot be found or refuses to sign, in which event the court
reporter's certification shall state the reason for the omission
of the signature. Copies of the transcripts shall be available to
all parties at their expense.
f) A party at a hearing may object to those portions of any
deposition which contain evidence pursuant to Section 166.250 of
this Subpart that would be excluded if the witness were testifying
in person.
g) Failure to comply with any ruling shall subject the person to
sanctions under Section 166.295 of this Subpart.

Section 166.228 Admissions

a) At least 21 days prior to a hearing, a party may serve on any
other party a written request for the admission of the truth of
any specified relevant fact or for admission of the genuineness of
any relevant documents described in the request. Copies of the
documents shall be served with the request unless copies have
already been furnished.
b) Each of the matters of fact and the genuineness of each document
of which admission is requested is admitted unless, within 7 days
after service thereof, the party to whom the request is directed
serves upon the party requesting the admission either:
1) A sworn statement denying specifically the matters of which
admission is requested or setting forth in detail the reasons
why those matters cannot be truthfully admitted or denied; or
2) Written objections on the ground that some or all of the
requested admissions are privileged or irrelevant or that the
request is otherwise improper in whole or in part.
c) If written objections to part of the request are made, the
remainder of the request shall be answered within 7 days after
service of the request. If only part of the request can be
answered as true or the request for admission requires
qualification of a matter, the party shall specify the part that
is true and deny the remainder.
d) Any objections to a request or to an answer shall be heard by the
Hearing Officer upon motion of the party making the request. The
Hearing Officer shall grant the motion for good cause such as the
admission has already been made or the admission for a privileged
fact.

Section 166.230 Hearing Officer

a) The Hearing Officer shall be designated by the Director of the
Agency.
b) The Hearing Officer shall have all authority necessary to conduct
a fair and orderly hearing including, but not limited to, the
power to:
1) Schedule the hearing, depositions and prehearing conferences;
2) Rule on motions and requests;
3) Administer oaths and affirmations;
4) Rule or reserve ruling on the admissibility of evidence
offered and amendments to pleadings;
5) Establish the time for making written submissions and closure
of the record; and
6) Impose sanctions in accordance with Section166.295 of this
Subpart.
7) The Hearing Officer may ask any questions of the parties to
assure a full and complete record.

Section 166.235 Intervention

a) A person desiring to intervene shall file with the Hearing Officer
a petition to intervene, accompanied by any pleadings or motions
the person may wish to file at the same time. The petition shall
be served on all parties at least 15 days prior to the hearing,
unless a different time period is allowed by the Hearing Officer,
but in no case shall intervention be allowed less than seven days
prior to the hearing.
b) Intervention shall be allowed when:
1) The petitioner can show an interest which may not be
adequately represented by the parties to the proceedings; or
2) The petition may adversely affected by the Agency's final
administrative decision; or
3) The petition is another agency or department of the United
States or the State of Illinois which has an interest in the
subject of the hearing before the Agency.
c) Any party may object to the petition to intervene by filing a
notice of objection with the Hearing Officer within seven (7) days
of service of the petition. The notice shall state the party's
reasons for objecting and shall be served upon all parties and the
persons petitioning to intervene.
d) In determining whether to allow intervention, the Hearing Officer
shall consider whether there are other remedies available to the
petitioner and whether the intervention will:
1) Unduly delay the hearing;
2) Be unduly burdensome to any party;
3) Enlarge the scope of the proceedings;
4) Insert new issues into the proceedings.
e) The intervenor shall have the right to present evidence and
cross-examine witnesses only with respect to those issues which
are within the scope of the intervention.

Section 166.240 Conduct of the Hearing

a) All testimony taken at hearings shall be under oath or
affirmation.
b) All motions and objections made during a hearing shall be stated
in writing or orally on the record, including the grounds for such
objections. The Hearing Officer shall rule on said motions either
in writing or orally on the record, and shall state the grounds
for such ruling.
c) The parties shall proceed at all stages of the hearing including
opening and closing statements, the offering of evidence, and
examination of witnesses, in the order in which they appear in the
pleadings unless otherwise agreed by the parties. In consolidated
cases or where intervention has been granted the Hearing Officer
shall designate the order.
d) The following shall be the order of the hearing.
1) Presentation, argument, and disposition of motions
preliminary to a hearing on the merits of the matters raised
in the complaint;
2) Presentation of opening statements;
3) Applicant's case in chief;
4) Objector/Respondent case in chief;
5) Statement from the public, if authorized by the Hearing
Officer;
6) Objector's/Respondent's closing argument, which may include
legal argument;
7) Applicant's closing argument, which may include legal
argument;
8) Presentation and argument of all motions prior to submission
of the transcript to the Hearing Officer; and
9) A schedule for submission of briefs to the Hearing Officer.

Section 166.250 Rules of Evidence

a) Irrelevant, immaterial or unduly repetitious evidence shall be
excluded. The rules of evidence and privilege as applied in civil
cases in the circuit courts of Illinois shall be followed.
However, evidence not admissible under such rules of evidence may
be admitted, (except where precluded by statute), if it is of a
type commonly relied upon by reasonably prudent persons in the
conduct of their affairs.
b) Objections to evidentiary offers may be made and shall be noted in
the record.
c) When a hearing is expedited and the interests of the parties will
not be prejudiced, any part of the evidence may be received in
written form. (Section 12(a) IAPA)

Section 166.255 Burden of Proof

a) The proponent of any matter asserted shall have the burden of
proof to establish by a preponderance of evidence that the matter
asserted is more probably true then not true.
b) When a party has the burden of proof and establishes the matter
asserted by the quantum of evidence required in Section 166.255(a)
of this Subpart, the party has made a prima facie case, and the
burden of disproving the matter asserted goes to the opposing
party; by the same quantum required in Section 166.255(a).

Section 166.260 Testimony and Cross-Examination of Witnesses
a) All parties may cross-examine any other party's witness. The
scope of cross-examination shall be defined by the scope of direct
examination.
b) Employees of one party required by order of the Hearing Officer to
attend a hearing may be examined as if under cross-examination.
c) If the Hearing Officer determines that a witness is hostile or
unwilling, the party calling the witness may examine the witness
as if under cross-examination.
d) Questions calling for an opinion of an expert witness need not be
hypothetical in form.

Section 166.265 Testimony and Cross-Examination of Witnesses

a) Notice may be taken of matters of which the circuit courts of this
state may take judicial notice.
b) Notice may also be taken of generally recognized technical or
scientific facts within the Agency's specialized knowledge.
c) Parties shall be notified either before or during the hearing, or
by reference in preliminary reports or otherwise, of the material
officially noticed, including any staff memoranda or data, and
they shall be afforded an opportunity to contest the material so
noticed. (Section 12(c) IAPA)

Section 166.270 Records in Other Proceedings

a) The Hearing Officer shall order the record, or any part thereof,
of any relevant proceeding before the Agency of governmental
department or subdivision, incorporated into the record of the
present proceeding.
b) When a party or intervenor desires to offer in evidence any
portion of the record in any other proceeding, such portion shall
be offered in the form of an exhibit.

Section 166.275 Documentary Evidence

a) Relevant scientific or technical articles, treatises, or materials
may be introduced into evidence by stipulation of the parties, or
subject to qualification of the author and subject to refutation
or disputation through any introduction of comparable documentary
evidence or expert testimony.
b) Any writing or record made as a memorandum of any act,
transaction, occurrence or event shall be admissible as evidence
of the act, transaction, occurrence or event provided it was made
in the regular course of the business to make such a memorandum or
record at the time thereafter.
c) All other circumstances of the making of the writing or record,
including lack of personal knowledge by the maker, may be shown to
affect its weight but shall not affect its admissibility.

Section 166.276 Exhibits
a) Proposed exhibits shall be reviewed or exchanged at the
pre-hearing conference or otherwise prior to the hearing if the
Hearing Officer so requires in order to expedite the proceeding.
b) The exhibits shall be marked for identification in accordance with
the following standard markings:
1) P = Permit Applicant or Petitioner;
2) R = Respondent or Objector
c) Other additional markings may be used for clarity.

Section 166.280 Transcript of Hearing

a) After the transcript is received from the court reporter, the
Hearing Officer will send copies of the transcript to the parties.
Suggested corrections to the transcript is received by the
parties.
b) Any person may inspect and copy the hearing record pursuant to
Access to Information of the Illinois Environmental Protection
Agency (35 Ill. Adm. Code 160).

Section 166.285 Proposed Finding of Fact and Conclusions of Law

a) If the Hearing Officer finds it necessary in order to render a
decision due to the complexity of the case, the Hearing Officer
shall require and establish a schedule for the filing of briefs,
proposed findings of fact and conclusions of law.
b) All proposed findings of fact and conclusions of law shall:
1) Be in writing and served upon all other parties;
2) Be accompanied by a supporting statement or brief; and
3) State specifically all matters officially noticed.

Section 166.290 Proposal for Decision

a) After the hearing is concluded, the Hearing Officer or when the
Hearing Officer is incapacitated or otherwise unable to prepare a
proposal for decision a designated Agency employee who has read
the record shall file with the Director or the Director's designee
and serve upon the parties a proposal for decision based
exclusively on:
1) Evidence and arguments presented during the course of the
hearing or otherwise made a part of the record;
2) Stipulations of fact; and
3) Matters officially noticed.
b) The Proposal for Decision shall be final in form and dispositive
of all issues in the case.
c) The Proposal for Decision shall contain:
1) A short statement of the nature of the proceedings;
2) Complete references to the specific statutes or regulations
at issue;
3) A list of exhibits admitted in evidence;
4) Specific findings on each issue of fact necessary to the
proposed decision;
5) Specific conclusions on each issue of law necessary to the
proposed decision based upon the findings of fact and
applicable constitutional principles, statutes, and rules or
regulations;
6) An appropriate recommendation for the disposition of the
entire contested case including a statement of reasons based
upon the findings of fact and conclusions of law;
7) No substantive finding of fact or conclusion of law nor any
recommendation in the proposal for decision shall be binding
upon the Director.

Section 166.291 Contents of the Record

The hearing record shall include:
a) A copy of the permit application;
b) A copy of all notices issued pursuant to the permit review
process;
c) A copy of the draft permit, if any;
d) A copy of the fact sheet, if any;
e) A copy of the Record of any previous informational hearing held by
the Agency on the matter.
f) All pleadings (including all notices and responses thereto),
motions, and rulings;
g) The hearing record;
h) Evidence received;
i) A statement of matters officially noticed pursuant to Section
166.265;
j) Offers of proof, objections and rulings theron;
k) Proposed findings and exceptions;
l) All staff memoranda or data submitted to the Hearing Officer or
members of the Agency in connection with their consideration of
the case;
m) Any stipulations, settlement agreements, or consent orders entered
into by any of the parties prior to the hearing;
n) Any communication prohibited by Section 15 of the IAPA but such
communications shall not form the basis for any finding of fact;
o) Proposed finding of fact and conclusions of law;
p) Proposal for decision; and
q) Director's Final Order.

Section 166.292 Decision in Contested Case

a) Within ten (10) days after service of the proposal for decision,
the parties may file with the Director exceptions and proposed
findings of fact and may present a brief to the Director; the
Director thereafter shall issue a Final Decision or Order.
b) The Director's Final Decision or Order adverse to a party in a
contested case shall be in writing or state in the record;
1) The final decision shall include findings of fact and
conclusions of law, separately stated;
2) Findings of fact, if set forth in statutory language, shall
be accompanied by a concise and explicit statement of the
underlying facts supporting the findings.
3) If, in accordance with Section 166.285, a party submitted
proposed findings of fact, the decision shall include a
ruling upon each proposed finding.
c) Parties or their Agents appointed to receive service of process
shall be notified either personally or by registered or certified
mail of any decision or order. Upon request a copy of the
decision or order shall be delivered or mailed forthwith to each
party or the party's attorney of record. (Section 14 IAPA)

Section 166.295 Sanctions

a) If a party refuses to comply with any provision of this Subpart B
or fails to comply with any order entered under these rules, the
Hearing officer shall enter any of the following orders when
necessary to obtain compliance without prejudicing the rights of
any other party:
1) That further proceedings be stayed until there is compliance
with the order or rules;
2) That the offending party be debarred from filing any other
pleading relating to any issue to which the refusal or
failure relates;
3) That the offending party be debarred from maintaining any
particular claim or defense relating to that issue;
4) That a witness be barred from testifying concerning that
issue; and
5) That any portion of the offending party's pleadings relating
to that issue be stricken.
b) If a party or person refuses to answer any question propounded at
deposition, the deposition shall be completed on other matters or
adjourned, as the proponent of the question may prefer.
Thereafter, on notice to all persons affected thereby, the
proponent may move the Hearing Officer for an order compelling an
answer. The Hearing Officer shall then issue an order compelling
an answer if the party continues to refuse to answer.
c) If a party fails to answer any interrogatory or request to admit
served upon it, the proponent of the interrogatory or request to
admit may on notice move for an order compelling an answer. If
the Hearing Officer finds that the refusal or failure was without
substantial justification, such as the inability to answer due to
illness or lack of information or the information requested in
irrelevant or privileged, the Hearing Officer shall required the
party or person to answer.

Section 166.296 Ex parte Consultations

Agency Hearing Officers and staff shall observe the requirements of Section
15 of the IAPA as follows:
Neither agency members, employees nor hearing examiners shall,
after notice of hearing in a contested case or licensing to which
the procedures of a contested case apply under this Act,
communicate, directly or indirectly, in connection with any issue
of fact, with any person or party, or in connection with any other
issue with any party or his representative, except upon notice and
opportunity for all parties to participate. However, agency
member may communicate with other members of the Agency, and an
Agency member or hearing examiner may have the aid and advice of
one or more personal assistants. (Section 15 IAPA)

Section 166.297 Right to Legal Counsel

a) Any party may appear and be heard through an attorney at law
authorized to practice in the State of Illinois.
b) In any proceeding before the Agency, a natural person may appear
and be heard on his own behalf.