a166

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old Part repealed, new Part adopted at 11 Ill.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

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

Objections to evidentiary offers may be made and shall be noted in

the record

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

Notice may be taken of matters of which the circuit courts of this

state may take judicial notice

Notice may also be taken of generally recognized technical or

scientific facts within the Agency's specialized knowledge

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;

The final decision shall include findings of fact and

conclusions of law, separately stated

;

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

If, in accordance with Section 166.285, a party submitted

proposed findings of fact, the decision shall include a

ruling upon each proposed finding

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.