ILLINOIS POLLUTION CONTROL BOARD
June 30,
1994
IN THE
MATTER
OF:
)
)
PROCEDURAL RULES REVISION:
)
R94-1l
APPEALS
FROM OFFICE OF
)
(Rulemaking)
THE
STATE FIRE
MARSHAL
)
DETERMINATIONS
)
(35 ILL. ADM. CODE 107)
)
)
ProDosed Rule.
First Notice.
OPINION
AND
ORDER OF THE BOARD
(by C.
A. Manning, M. McFawn, and
J. Theodore Meyer):
This matter is before the Board on its
own
motion.
On
September 13, 1993, the Governor signed into law P.A. 88-496,
“Petroleum Leaking Underground Storage Tanks”.’
This new
underground storage tank
(UST)
law did not create a new program,
but instead substantially amended the administration of the
program and the method by which petroleum leaks are remediated in
Illinois.
One of the significant changes is the division of
program administration between the Illinois Environmental
Protection Agency (Agency) and the Office of the State Fire
Marshal (OSFM).
The OSFM has always been responsible for the
“early action” activities at a UST site, i.e.,
supervising tank
pulls and verifying petroleum leaks.
Under the new statutory
provisions,
the OSFM is now charged with the additional
responsibilities of determining whether an owner or operator is
eligible to seek reimbursement for corrective action from
Illinois’ UST Fund, and also ascertaining the applicable
deductible.
(415 ILCS 5/57.9(c).)
Owners and operators have
always been authorized to file appeals with the Board of
eligibility and deductibility final determinations when this
portion of the program was administered by the Agency.
However,
this new legislation marks the first time that the OSFM’s final
decisions are appealable to the Board rather than to circuit
court.2
P.A. 88-496, also known as H.B. 300, added new Sections 57
through 59 to the Environmental Protection Act (415 ILCS 5/57-
5/59)
(Act)
and repealed Sections 22.13, 22.18, 22.18b, and
22
•
18c.
2
P.A. 88-496 allows for appeals to the Board from
determinations made by both the Agency and the OSFM.
The
statutory sections providing for appeals from Agency
determinations specifically state that those appeals shall be
pursuant to Section 40 of the Act.
However, Section 57.9(c) (2),
2
In response, the Board has drafted procedural rules
implementing this new appeal point in the UST law.
Today we send
these rules to first notice for the purpose of eliciting comments
from the regulated community, the OSFM,
and other interested
members of the public.
Although not required by the Act, the
Board will schedule a public hearing in this matter to allow for
maximum public participation in this proceeding.
PROPOSAL
The Board believes that P.A. 88-496 envisions prompt action
by the administrative agencies so that an
owner
or operator may
proceed to the remediation requirements and rapidly address any
contamination which may be a threat to human health, safety and
the environment.
Therefore,
the proposed rules establish a
flexible hearing and decision process.
Any
owner or operator who has received an eligibility and
deductibility determination letter from the OSFM may appeal that
final determination to the Board within 35 days of the date of
that letter.
The information which must be included in a
petition for review is set forth in proposed Section 107.122.
Pursuant to proposed Section 107.141, the Board may dismiss a
petition, or direct that an amended petition be filed, if the
Board finds that the petition is untimely,
insufficient, or
otherwise improperly filed.
Unless the Board makes a
determination that the petition is insufficient, the Board or its
chief hearing officer will authorize a hearing.
(See proposed
Sections 107.140 and 107.160.)
Hearings
The proposed rules are designed to streamline the hearing
process in the OSFM appeal process.
The most significant change
from other contested case hearing procedures is that hearings
will usually be held in Springfield or Chicago.3
Central hearing
locations will allow the hearing officer to schedule one or two
days of hearing at one location, which will minimize the need for
the petitioner and the OSFM to travel around the state.
Additionally, if the hearings for some cases are not expected to
take the entire day, the hearing officer may schedule more than
one hearing per day.
Thus,
if a party or practitioner has more
which provides for appeals from OSFM determinations, does not
refer to Section 40.
These proposed rules do not presume the
applicability of Section 40 to OSFM appeals.
~ The Board will continue to provide public notice of hearings
of cases in the county where the UST site is located.
(See
proposed Section 107.160(c).)
3
than one OSFM appeal before the Board,
it may be possible for
both cases to be heard in one day in the same location.
The
order in which cases will be heard under such circumstances is
established at proposed Section 107.241.
So that hearing officers will be most effectively assigned
to cases, a party is required to file, with the petition for
review,
a request to hold the hearing in either Springfield or
Chicago,
or,
in the alternative,
a different specific location.
If the request is for a location other than Springfield or
Chicago, the party must provide a reason for that request for an
alternative location.
(See proposed Section 107.122(g).)
The
Board anticipates, however, that the majority of hearings will be
held in either Springfield or Chicago.
A hearing will be held in
an alternate location only to prevent material prejudice or undue
delay.
All hearings are open to the public, and members of the
public may make statements on the record, subject to cross—
examination, as time permits.
(See proposed Section 107.280.)
The order of the proceeding is established in proposed Section
107.242(a), but is subject to modification by the hearing officer
to avoid material prejudice or undue delay.
Duties and Authority of the Hearing Officer
The role of the hearing officer in OSFM appeals is defined
at proposed Sections 107.180 and 107.181.
The hearing officer
has the authority to hold pre—hearing conferences, rule on all
non—dispositive motions, discovery requests, objections,
and
motions at hearing.
The hearing officer will rule on the
admissibility of evidence in accordance with proposed Section
107.244.
Rulings of the hearing officer are appealable to the
Board, although the appeal of a hearing officer ruling does not
automatically stay the proceeding.
(See proposed Section
107.223, referring to 35 Ill. Adm. Code 101.247(b).)
The hearing officer is responsible for scheduling the
hearing, and for establishing discovery schedules when discovery
is in dispute.
The hearing officer must also insure that the
Clerk of the Board receives all exhibits and other materials from
the hearing.
The hearing officer also has the duty of
establishing a briefing schedule, and must make oral and written
statements concerning the credibility of the witnesses.
Motion Practice
Proposed Subpart G contains the provisions for motion
practice in OSFM appeals before the Board.
Many of the sections
refer to the Board’s existing rules at 35 Ill.
Adm. Code 101.
The proposed rules do establish new procedures for canceling
hearings, staying proceedings, and motions for summary judgment.
4
(See proposed Sections 107.225 through 107.227.)
These rules
contain timing requirements for filing of the motions, and an
explanation of what documents must accompany those motions.
Settlement
To encourage a speedy resolution and settlement between the
parties, the proposed rules allow the filing of a settlement
agreement with the Board.
If the parties wish to settle the case
prior to incurring the expense of a hearing, they may file a
stipulation and settlement agreement,
and move for cancellation
at least 14 days prior to hearing.
Alternatively, the parties
can present the agreement at the hearing.
(See proposed Section
107.300.)
Of course, the petitioner may file a motion to
withdraw the petition for review.
CONCLUSION
The goal of these proposed rules is to create a streamlined
process where parties can quickly and easily obtain a Board
decision in an appeal of an OSFM eligibility and deductibility
determination.
This will allow owners and operators of UST8 to
move quickly through the entire UST corrective action and
reimbursement process.
ORDER
The Clerk of the Board is directed to cause first notice
publication of the following rules in the Illinois Register:
TITLE 35:
ENVIRONMENTAL PROTECTION
SUBTITLE A:
GENERAL
PROVISIONS
CHAPTER
I:
POLLUTION
CONTROL
BOARD
PART 107
OFFICE OF THE STATE FIRE
MARSHAL APPEALS
SUBPART A:
GENERAL
PROVISIONS
Section
107
•
100
Applicability
107.101
Severability
107.102
General Overview
107. 103
Definitions
SUBPART
B:
PLEADINGS
AND
PROCESS
Section
107.120
Who
May
File;
Parties
107.121
Timely Petition
107.122
Contents of the Petition
107.123
Service
107.124
OSFN Appearance and Record
SUBPART C:
INITIAL
BOARD ACTION
Section
107.140
107.141
Section
107
.
160
107.161
Preliminary Board Determination:
Accept for Hearing
Preliminary Board Determinations:
Insufficient Petition
SUBPART D:
NOTICE OF HEARING
Scheduling
Hearing Authorized
SUBPART E:
AUTHORITY AND DUTIES OF
HEARING OFFICERS
Section
107.180
107.181
Section
107.200
107.201
107.202
Section
107.220
107.221
107.222
107.223
107. 224
107.225
107.226
107.227
107.228
Authority of Hearing Officers
Duties of Hearing Officers
SUBPART
F:
PRE-HEARING MATTERS, DISCOVERY,
ADMISSIONS
AND
SUBPOENAS
Pre—Hearing Conference
Discovery in General
Subpoenas
SUBPART G:
MOTION PRACTICE
Filing
and
Contents
of Motions and Responses
Motions Attacking Jurisdiction or Sufficiency of the
Pleadings
Motions Preliminary to Hearing
Effect of Filing and Disposition of Motion
Voluntary Dismissal
Motions to Cancel Hearing
Motions to Stay
Notions for Summary Judgment
Notions for Reconsideration
SUBPART H:
HEARINGS
Hearings Open to the Public
Order of Cases
Order of Proceedings
Testimony at Hearing
Admissibility of Evidence
Examination of Adverse and Hostile Witnesses
Amendment of Pleadings
Default
Section
107.240
107.241
107.242
107.243
107. 244
107.245
107.246
107. 247
6
SUBPART I: PUBLIC PARTICIPATION
Section
107.260
Statements from Interested Persons
SUBPART J:
SETTLEMENT
Section
107.280
Settlement
SUBPART K:
POST-HEARING MATTERS
Section
107.300
Hearing Transcripts
107.301
Written Briefs
107.302
Record of Proceeding
SUBPART L:
SANCTIONS
Section
107.320
Sanctions
SUBPART N:
FINAL BOARD ACTION
107.340
Standard of Review
107.341
Contents of Board Opinions
107.342
Duties of the Clerk
SUBPART N: MOTIONS FOR RECONSIDERATION
AND RELIEF FROM FINAL BOARD ORDERS
Section
107.360
Notions for Reconsideration
107.361
Relief from Final Orders
107.362
Judicial Review of Final Board Orders
AUTHORITY:
Authorized by Section
26 of the Illinois
Environmental Protection Act (415 ILCS 5/26
(1992)) and
implementing Section 57.9(c)
of the Environmental Protection Act
(415 ILCS 5/57.9(c),
as added by P.A. 88—496, effective September
13,
1993).
SOURCE:
Adopted
in R94-11 at 18
Ill.
Reg.
_________,
effective
NOTE:
Capitalization denotes statutory language.
SUBPART A: GENERAL PROVISIONS
Section 107.100
Applicability
This Part applies to proceedings before the Illinois Pollution
7
Control Board
(Board) concerning appeals from Office of State
Fire Marshal
(OSFM)
final determinations made pursuant to Section
57.9(c)
of the Environmental Protection Act.
(415 ILCS
5/57.9(c)(1992).)
This Part shall be read in conjunction with 35
Ill. Adm. Code 101 which contains procedures generally applicable
to Board proceedings.
In the event of a conflict between the
requirements of 35 Ill. Adm. Code 101 and those of this Part, the
provisions of this Part shall apply.
Section 107.101
Severability
If any provision of this Part or its application to any person or
under any circumstances is adjudged invalid, such adjudication
shall not affect the validity of this Part as a whole or of any
portion not adjudged invalid.
Section 107.102
General Overview
These procedural rules promote administrative efficiency in the
Board’s consideration of appeals of OSFN Eligibility and
Deductibility Final Determinations.
The process before the Board
includes, but is not limited to, the following steps.
Upon
receipt of a petition for review, unless the Board or its
designee makes a preliminary determination that the petition is
insufficient,
a hearing date and location will be assigned.
Though hearings will be publicly-noticed in the county where the
underground storage tank site is located,
in most cases the
hearings will take place in either Chicago or Springfield.
The
Board envisions that if the parties enter into settlement prior
to or during the hearing process, the parties may request that
the Board accept and enter a final order adopting
a proposed
settlement agreement; Such an order may be requested with or
without a hearing.
Section 107.103
Definitions
Except as otherwise defined in this section, definitions of terms
used in this Part shall be those used in the Environmental
ProtectioB Act (415 ILCS 5/1 et sea.)
“Act” means the Environmental Protection Act
(415 ILCS
5/1 et seq (1992)).
“Board” means the Illinois Pollution Control Board or
its designee.
“Eligibility and Deductibility Determination Form”
means a form provided by the Office of State Fire
Marshal to the owner or operator either on site or
within 15 days of receipt of notice indicating
a
confirmed release.
(Derived from Section 57.9(c)
of
the Act).
8
“Eligibility and Deductibility Final Determination”
means the letter issued by the Office of State Fire
Marshal enunciating the final eligibility and
deductibility determination of an owner or operator who
has reported a confirmed release of a regulated
substance to access the Underground Storage Tank Fund.
(Derived from Section 57.9(c)
of the Act).
“FUND”
MEANS THE
UNDERGROUND
STORAGE
TANK
FUND.
(Section 57.2 of the Act.)
“lENA”
means
the Illinois Emergency Management Agency.
“OSFM” means the Office of State Fire Marshal.
“Operator” means any person in control of, or having
responsibility for, the daily operation of the
underground storage tank.
(42 U.S.C.
S
6881).
“Owner” means:
In the case of an underground storage tank in use
on November 8,
1984,
or brought into use after
that date, any person who owns an underground
storage tank used for the storage, use or
dispensing of regulated substances;
In the case of any underground storage tank in use
before November 8,
1984, but no longer in use on
that date, any person who owned such underground
storage tank immediately before the
discontinuation of its use.
(42 U.S.C.
5 6991).
“Registration” means registration of an underground
storage
tank
with
the
OSFM
in
accordance
with
Section
4
of the Gasoline Storage Act (430 ILCS 15/4).
“SITE” MEANS ANY SINGLE LOCATION, PLACE,
TRACT
OF
LAND
OR PARCEL OF PROPERTY INCLUDING CONTIGUOUS PROPERTY NOT
SEPARATED BY A PUBLIC RIGHT—OF-WAY.
(Section 57.2 of
the Act).
“Underground Storage Tank” or “UST” means any one or
combination of tanks
(including underground pipes
connected thereto) which is used to contain an
accumulation of regulated substances, and the volume of
which
(including the volume of underground pipes
connected thereto)
is 10 per centum or more beneath the
surface of the ground.
Such term does not include any
of the following or any pipes connected thereto:
9
Farm or residential tank of 1,100 gallons or less
capacity used for storing motor fuel for
noncommercial purposes;
Septic tank;
Pipeline facility
(including gathering lines)
regulated under the Natural Gas Pipeline Safety
Act of 1968
(49 U.S.C. App. 1671 et seq.), or the
Hazardous Liquid Pipeline Safety Act of 1979
(49
U.S.C. App.
2001 et seq.), or which is an
intrastate pipeline facility regulated under State
laws as provided in either of these provisions of
law, and which is determined by the Secretary to
be connected to a pipeline or to be operated or
intended to be capable of operating at pipeline
pressure or as an integral part of a pipeline;
Surface impoundment, pit, pond,
or lagoon;
Storm water or waste water collection system;
Flow-through process•tank;
Liquid trap or associated gathering lines directly
related to oil or gas production and gathering
operations; or
Storage tank situated in an underground area (such
as a basement, cellar, mineworking,
drift,
shaft,
or tunnel)
if the storage tank is situated upon or
above the surface of the floor.
(Derived from 42
U.S.C.S 6991).
THE
TERN
“UNDERGROUND STORAGE
TANK”
SHALL ALSO
MEAN AN UNDERGROUND
STORAGE TANK USED EXCLUSIVELY
TO
STORE
HEATING
OIL
FOR
CONSUMPTIVE
USE
ON
THE
PREMISES WHERE STORED AND WHICH SERVES OTHER
THAN
A
FARM
OR RESIDENTIAL UNIT.
(Section 57.2 of the
Act).
SUBPART B:
PLEADINGS
AND
PROCESS
Section 107.120
Who
May File; Parties
Any owner or operator of an underground storage tank who has been
issued an “Eligibility and Deductibility Final Determination”
letter may file a petition with the Board seeking review of that
final decision.
The owner/operator shall be named as the
petitioner,
and the OSFM shall be named as the respondent.
Filing requirements are set forth at 35 Ill. Adm. Code
10
101.Subpart A.
Section 107.121
Timely Petition
The petition for review must be filed with the Board within 35
days of the date of the OSFN’s “Eligibility and Deductibility
Final Determination” letter.
There shall be a rebuttable
presumption
that
petitioner
received
the OSFM’s “Eligibility and
Deductibility Final Determination” letter four days from the date
indicated on the letter.
Section 107.122
Contents of the Petition
A petition for review must include:
a)
A copy of the OSFM’s “Eligibility and Deductibility
Final Determination” letter;
b)
A complete and precise description of the underground
storage tank site, including but not limited to the
location of the site,
including the county, the number
of underground storage tanks on—site, the substance(s)
stored,
the
date of the tank(s) registration; and the
date of
IEMA
notification;
C)
A concise statement of the relief being sought before
the Board;
d)
A concise statement of the issues on review before the
Board;
e)
If the owner or operator is represented by counsel, an
appearance shall be filed in conjunction with the
petition;
f)
Documentation to demonstrate the petition’s timely
filing; and
g)
,A request to hold the hearing in either Springfield or
Chicago, or a request to conduct hearing at a specified
location other than Springfield or Chicago, specifying
the reasons for that request. A hearing will be held in
an alternate location only to prevent material
prejudice or undue delay.
Section 107.123
Service
a)
The petitioner shall serve all filings upon the OSFM.
All filings shall be accompanied by a notice of filing.
b)
Methods and proof of service, as well as the effective
date of service, are governed by 35 Ill. Adm. Code
11
101.Subpart C.
Section 107.124
OSFM Appearance and Record
a)
The OSFM shall appear as a respondent.
b)
Within 14 days of receipt of the notice of filing of
the petition for review, the OSFM shall file an
appearance and the record before the Board.
The record
shall include all information which served as a basis
for the OSFM’s “Eligibility and Deductibility Final
Determination” letter, including but not limited to:
1)
A copy of the “Eligibility and Deductibility Final
Determination” letter;
2)
A completed copy of the “Eligibility and
Deductibility Determination Form” upon which the
OSFM made its final determination;
3)
Any and all correspondence with the applicant;
4)
Any and all forms completed by the owner or
operator which served as a basis for the OSFM
final decision; and
5)
Any memoranda or correspondence which served as a
basis for the OSFM final decision.
SUBPART
C:
INITIAL BOARD ACTION
Section 107.140
Preliminary Board Determination:
Accept for
Hearing
a)
Upon receipt of the petition for review, unless the
Board makes a preliminary determination that the
petition is insufficient pursuant to Section 107.122, a
hearing date and location will be assigned.
b)
If the petition does not satisfy Section 107.122, the
case shall be referred to the Board for consideration
pursuant to Section 107.141.
Section 107.141
Preliminary Board Determinations:
Insufficient Petition
On its own motion, the Board may determine that a petition for
review is untimely, insufficient,
or otherwise improperly filed.
If such a determination is made, the Board may either dismiss the
petition or direct that an amended petition be filed.
Upon the
filing of a sufficient amended petition, the case may be set for
hearing pursuant to Section 107.160.
12
SUBPART D:
NOTICE OF
HEARING
Section 107.160
Authorization of Hearing
a)
The Board will set
a case for hearing.
The hearing
will be held within 60 days after the filing of the
petition for review unless the Board orders otherwise
to prevent material prejudice.
b)
The hearing will be held in either Springfield or
Chicago or in such other place as the hearing officer
or the Board may designate to prevent material
prejudice or undue delay.
c)
Upon the case being set for hearing, the Clerk will
cause notice of the hearing to be published.
Public
notice will be published at least 21 days before the
hearing by public advertisement in a newspaper of
general circulation in the county in which the UST site
in question is located.
SUBPART E:
AUTHORITY
AND DUTIES OF
HEARING OFFICERS
Section 107.180
Authority of Hearing Officers
The hearing officer shall have all powers necessary to schedule
and conduct a fair hearing,
including but not limited to the
following:
a)
Issue discovery orders whenever the parties cannot
agree upon the legitimate scope of discovery,
including
the setting of a schedule for the orderly submission of
discovery;
b)
Issue protective orders pursuant to Section 107.201(e)
below;
c)
Rule on objections to discovery pursuant to
Section
107.201(f)
below;
d)
Hold pre—hearing conferences for settlement,
simplification of issues or any other purpose;
e)
At hearing, rule on objections and offers of proof,
and
receive evidence in accordance with Section 107.244
below;
f)
Administer oaths and affirmations;
g)
Regulate the course of the hearings, and the conduct of
the parties and counsel;
13
h)
Consider and rule on any non—dispositive motions;
i)
Examine the witnesses to insure a clear and complete
record;
j)
Determine that
a witness is adverse or unwilling
pursuant to Section 107.245 below; and
k)
Compel the appearance at hearing of an officer,
director or employee of a party pursuant to Section
107.245 below.
Section 107.181
Duties of Hearing Officers
The hearing officer has the duty to take all necessary action to
avoid delay, to maintain order, and to ensure development of a
clear and complete record.
Additionally,
it is the hearing
officer’s duty to accomplish the following:
a)
Establish a schedule for submission of briefs to the
Board.
All schedules and any modifications to
schedules shall be in writing, and shall be submitted
to the Board by the hearing officer no later than 5
days after hearing;
b)
At the conclusion of the hearing, the hearing officer
shall make a statement both on the record and in
writing as to the credibility of witnesses.
This
statement shall be based on his legal judgment and
experience and shall indicate whether he finds
credibility to be an issue and if so, the reasons why.
This statement shall become part of the official
record;
c)
The hearing officer shall transmit to the Clerk any
exhibits, offers of proof not jncluded in the hearing
transcript,
any proposed stipulation and settlement,
and any written statements submitted pursuant to
Section 107.280(b);
and
d)
The hearing officer shall file a copy of all
correspondence,
schedules and hearing officer orders
with the Clerk, and serve all parties pursuant to 35
Ill. Adm. Code 101.142.
SUBPART F:
PRE-HEARING MATTERS,
DISCOVERY,
ADMISSIONS AND SUBPOENAS
Section 107.200
Pre-Hearing Conference
a)
On the hearing officer’s
own
motion, or on motion by a
party, the hearing officer may direct the parties or
14
their attorneys to appear at a specified time and place
for a conference for,
among other reasons, the
following purposes:
1)
Simplifying the issues;
2)
Amending the pleadings for clarification,
amplification, or limitation;
3)
Making admissions of fact or stipulating to the
admissibility of any matter;
4)
Limiting the number of witnesses;
5)
Exchanging prepared testimony and exhibits; and
6)
Aiding in the simplification of the evidence and
disposition of the proceeding.
b)
A pre—hearing conference may also be held by telephone.
c)
Substantive action taken at the pre—hearing conference
shall be noted by the hearing officer, either on the
record at hearing or in writing.
Section 107.201
Discovery in General
a)
Scope of Discovery:
All relevant information and
information calculated to lead to relevant information
is discoverable, unless privileged.
b)
Disagreements on Discovery:
If the parties cannot
agree on the scope of discovery or the time or location
of any deposition, the hearing officer shall have the
authority to order discovery or to deny requests for
discovery.
c)
Time for Discovery:
All discovery must be completed
prior to the scheduled hearing in the case.
Disputes
over the timing of discovery shall be directed to the
hearing officer.
d)
Purpose of Discovery:
All depositions and
interrogatories shall be for purposes of discovery
only,
except for the following purposes:
1)
Impeachment of the testimony of the deponent or
interrogated person;
2)
As an admission of the deponent or interrogated
person; and
15
3)
As evidence, upon motion to the hearing officer,
upon a showing that at the time of hearing the
person deposed or interrogated will not be
available to participate in the hearing because of
exceptional circumstances, including,
but not
limited to, death, age, sickness, infirmity,
or
absence from the country.
e)
Protective Orders:
The hearing officer may, upon his
own
initiative, or on the motion of any party or
witness,
issue protective orders denying,
limiting,
conditioning or regulating discovery to prevent
unreasonable expense, harassment,
or oppression,
and to
expedite resolution of the proceeding.
f)
Objections to Discovery:
Unless a claim of privilege
is asserted,
it is not a ground for objection that the
testimony of a deponent or person interrogated will be
inadmissible at hearing,
if the information sought is
reasonably calculated to lead to relevant information.
All objections to rulings of the hearing officer shall
be made on the record at hearing, or in writing prior
to hearing.
g)
Failure to Comply:
Failure to comply with any order
regarding discovery shall subject the offending persons
to sanctions pursuant to Subpart K below.
h)
If any person in bad faith files any request for
discovery or answers to discovery, or knowingly gives
a
false answer to discovery questions,
the Board, upon
motion or on its own initiative, may impose sanctions
pursuant to Subpart K below.
Section 107.202
Subpoenas
Subpoenas are governed by the provisions of 35 Ill. Adm. Code
101.260.
SUBPART G:
MOTION PRACTICE
Section 107.220
Filing and Contents of Motions and Responses
Filing and contents
of. motions are governed by 35 Ill. Adm. Code
101.241 and 101.242.
Section 107.221
Motions Attacking Jurisdiction or Sufficiency
of the Pleadings
Motions attacking jurisdiction or the sufficiency of pleadings
shall be filed pursuant to 35
Ill. Adm. Code 101.243.
16
Section 107.222
Motions Preliminary to Hearing
Motions preliminary to hearing (except motions to cancel hearing,
governed by Section 107.225) shall be filed pursuant to 35 Ill.
Adm. Code 101.245.
Section 107.223
Effect of Filing and Disposition of Motions
Provisions regarding the effect of filing a motion, and the
disposition of motions, are set forth at 35
Ill.
Adm.
Code
101.247.
Appeals of hearing officer rulings to the Board are
governed by 35 Ill. Adm. Code 101.247(b).
Section 107.224
Voluntary Dismissal
A motion by petitioner to voluntarily dismiss an appeal shall be
directed to the Board.
Such motion may be made orally at
hearing, or filed in writing prior to entry of the Board’s
decision.
If made orally, that motion will be recorded by the
hearing officer in writing and transmitted to the Board within
5
days of the close of that hearing.
Section 107.225
Motions to Cancel Hearing
a)
Time for Filing:
Unless otherwise provided by Board or
hearing officer order, requests for cancellation of
hearing may be granted upon motion to the hearing
officer, filed no less than 14 days before the
scheduled hearing date.
Any motion for cancellation
filed less than 14 days before the hearing date may be
granted only upon a showing by the movant that movant
would suffer material prejudice if the hearing was not
cancelled.
b)
Contents:
All motions for cancellation shall be
supported by an affidavit of the person or persons
having knowledge of the facts supporting the request
for cancellation.
The affidavit shall include the
factual bases for the cancellation,
a complete status
report detailing the progress of the proceeding, the
number of cancellations previously granted, and a
proposed date for rescheduling the hearing.
The
hearing officer shall grant the motion only upon a
showing that the request for cancellation is not the
result of lack of due diligence by the movant.
Section 107.226
Motions to Stay
a)
Motions to stay a proceeding shall be directed to the
Board.
All motions to stay shall include a complete
status report detailing the progress of the proceeding
and a proposed date for further action in the
17
proceeding.
b)
The Board will act upon all motions to stay.
If the
motion to stay is granted, the Board may direct the
hearing officer to require status reports during the
pendency of the stay.
C)
At the conclusion of the stay, the hearing officer will
contact the parties and establish a new hearing
schedule, unless the case is otherwise resolved.
Section 107.227
Motions for Summary Judgment
a)
Motion:
Any
time after the opposing party has appeared
(or after the expiration of time within which any party
is required to appear), but no less than 21 days prior
to the scheduled hearing,
a party may move the Board
for summary judgment for all or any part of the relief
sought.
b)
Response:
Any
response to a motion for summary
judgment shall be filed within 14 days from service of
that motion.
C)
Reply:
The moving party shall not have the right to
reply to a response, unless allowed by the Board or the
hearing officer to prevent material prejudice.
d)
Board Determination:
The Board will enter
summary
judgment if the pleadings, depositions and admissions
on file, together with any affidavits,
show that there
is no genuine issue of material fact,
and that the
moving party is entitled to judgment as a matter of
law.
Section 107.228
Motions for Reconsideration
a)
Any motion for reconsideration or modification of a
Board order shall be filed within 35 days of the
adoption of the order.
b)
Any
response to a motion for reconsideration or
modification shall be filed within 14 days from the
service of the motion.
c)
A timely—filed motion for reconsideration or
modification s.tays the effect of the final order until
final disposition of the motion.
The time for appeal
of the Board order runs anew after the Board rules upon
the motion unless otherwise provided.
d)
In ruling upon a motion under this Section, the Board
18
will consider factors including,
but not limited to,
error in the decision and facts in the record which
were overlooked.
SUBPART
H:
HEARINGS
Section
107.240
Hearings
Open
to
the
Public
All hearings conducted under this Part shall be open to the
public.
Section 107.241
Order of Cases
In the event that more than one eligibility/deductibility
determination appeal is scheduled for hearing on the same day,
cases will be heard in numerical order,
by docket number, with
the exception that any case with a completed stipulation and
settlement pursuant to Section 107.300 shall be heard first.
The order of hearing of cases shall be subject to modification by
the hearing officer in order to avoid material prejudice or undue
delay.
Section 107.242
Order of Proceedings
a)
The following shall be the order of proceedings for all
hearings:
1)
Opening of the record of hearing and introduction
of the parties by the hearing officer;
2)
Presentation, argument, and disposition of motions
preliminary to hearing;
3)
Presentation of opening statements, with
petitioner proceeding first and respondent
proceeding second;
4)
Petitioner’s case in chief;
5)
Respondent’s case in chief;
6)
Oral and/or written statements from interested
persons,
as authorized by the hearing officer
pursuant to Section 107.260 below;
7)
Respondent’s case in rebuttal, limited to the
rebutting of statements and assertions contained
in the oral and written statements allowed
pursuant to subsection
(a) (6)
above;
8)
Petitioner’s case in rebuttal;
19
9)
Respondent’s
closing
arguments,
including
legal
arguments;
10)
Petitioner’s closing arguments,
including legal
arguments; and
11)
Scheduling submission of written briefs,
if any.
b)
The order of hearing specified in subsection
(a)
above
shall be subject to modification by the hearing officer
in order to avoid material prejudice or undue delay.
Section 107.243
Testimony at Hearing
All witnesses shall be sworn and shall testify under oath.
All
testimony at hearing shall be subject to cross—examination by any
party.
Section 107.244
Admissibility of Evidence
a)
Admissibility:
The hearing officer shall admit
evidence which is admissible under the rules of
evidence as applied in the civil courts of Illinois,
except as otherwise provided in this Part.
b)
Hearsay:
The hearing officer may admit hearsay
evidence which is material, relevant, and would be
relied upon .by prudent persons in the conduct of
serious affairs, unless such evidence is privileged.
c)
When the admissibility of evidence depends upon an
arguable interpretation of substantive law, the hearing
officer shall admit such evidence.
d)
Scientific Articles and Treatises:
Relevant scientific
or technical articles, treatises,
or materials may be
introduced into evidence by a party,
subject to
refutation or disputation through introduction of
~documentary evidence or expert testimony.
e)
Written testimony:
Written testimony may be introduced
by a party only if the persons whose written testimony
is introduced are available for cross—examination at
hearing.
f)
Admission of business records:
A writing or record,
whether in the form of any entry in a book or otherwise
made as a memorandum or record of any act, transaction,
occurrence,
or event, may be admissible as evidence of
the act, transaction, occurrence,
or event.
To be
admissible,
the writing or record shall have been made
in the regular course of business, provided it was the
20
regular course of business to make such a memorandum or
record at the time of such act, transaction,
occurrence,
or event, or within a reasonable time
thereafter.
All other circumstances of the making of
the writing or record,
including lack of personal
knowledge by the entrant or maker, may be admitted to
affect the weight of the evidence, but shall not affect
admissibility.
The term “business”, as used in this
subsection
(f), includes business, profession,
occupation,
and calling of every kind.
g)
Prior Inconsistent Statements:
Prior statements made
under oath may be admitted to impeach a witness if the
statement is inconsistent with the witness’ testimony
at hearing.
Section 107.245
Examination of Adverse and Hostile Witnesses
a)
Adverse Witnesses:
At hearing, upon motion to the
hearing officer, any party, or any person for whose
immediate benefit the action is prosecuted or defended,
or the officers, directors, managing agents, or foremen
of any party may be called as an adverse witness.
Adverse witnesses may be examined as if under cross-
examination.
The party calling for the adverse witness
may rebut the testimony and may impeach the witness.
b)
Hostile Witnesses:
If the hearing officer determines
that any witness is hostile or unwilling,
the witness
may be examined by the party calling the witness as if
under cross—examination.
Section 107.246
Amendment of Pleadings
Proof may depart from pleadings, and pleadings may be amended to
conform with the proof, so long as no unfair surprise results
that cannot be remedied by a continuance which could be granted
consistent with the minimum timelines prescribed by this Part.
Section 107.247
Default
Failure of a party to appear on at the hearing, or failure to
proceed as ordered by the Board or hearing officer, shall
constitute default.
SUBPART I: PUBLIC PARTICIPATION
Section 107.260
Statements from Interested Parties
a)
Oral statements:
The hearing officer may permit any
person not a party and not otherwise a witness for a
party, to make oral statements on the record when time,
21
facilities and concerns for
a clear and concise hearing
record allow so.
Such oral statements shall be made
under oath and are subject to cross examination.
b)
Written statements:
Any
person not a party and not
otherwise a witness for a party may submit written
statements relevant to the subject matter at any time
prior to hearing or at hearing.
Any persons submitting
such a statement shall be subject to cross examination
by any party.
Written statements submitted without the
availability of cross-examination will be treated as
public comment and shall be afforded lesser weight than
evidence subject to cross examination.
SUBPART J:
SETTLEMENT
Section 107.280
Settlement
a)
All parties to any case in which settlement is proposed
shall file a proposed stipulation and settlement signed
by all the parties or their authorized representatives,
outlining the nature of, the reasons for, and the
purpose to be accomplished by a settlement.
The
stipulation and settlement agreement must be
accompanied by a motion to cancel hearing in accordance
with Section 107.225.
1)
Parties wishing to settle without a hearing in the
case, must file the information required in
subsection
(a)
above with the Board, and serve
upon the hearing officer, at least 14 days before
thescheduled hearing date.
2)
Stipulations and settlement agreements not filed
at least 14 days before the hearing shall be filed
with the hearing officer at the time of the
scheduled hearing.
b)
The stipulation shall contain a full statement of all
material facts pertaining to the nature of the OSFM’s
determination of deductibility or eligibility.
c)
If the provisions of subsection
(a) (1) are fulfilled,
the Board may accept a stipulation and settlement
without a public hearing.
SUBPART K:
POST-HEARING MATTERS
Section 107.300
Hearing Transcripts
The Board will provide for a court reporter who shall transcribe
the entire hearing.
The original transcription shall be filed
22
with the Board.
Any party or witness may move to correct the
transcript within
7 days of the filing of the transcript with the
Board.
Section 107.301
Written Briefs
a)
Except as otherwise directed by the Board, all briefs
shall be filed in accordance with the briefing schedule
established by the hearing officer pursuant to Section
107.181 above.
Any party may move the Board for an
extension of time to file briefs in accordance with
Subpart G above.
b)
The briefs shall set forth the party’s legal arguments
including citation to authorities and to the pages of
the record relied upon.
All briefs shall comply with
the provisions of 35
Ill.
Adin. Code 101.104.
C)
The parties may waive their right to file a brief
either orally on the record at hearing or by written
motion.
Section 107.302
Record of Proceeding
All pleadings, motions, orders,
briefs, the transcript of
hearing, offers of proof,
exhibits, and any written statements
from the public, and stipulation and settlement agreements shall
constitute the record.
SUBPART L:
SANCTIONS
Section 107.320
Sanctions
The imposition of sanctions for refusal to comply with procedural
rules, Board orders, or hearing officer orders, or for abuse of
discovery procedures,
are governed by 35 Ill.
Adju.
Code
l01.Subpart J.
SUBPART M:
FINAL BOARD
ACTION
Section 107.340
Standard of Review
The standard of review of an OSFM final determination is whether
the application, as submitted to OSFM, demonstrates compliance
with the Act and Board regulations.
Section 107.341
Contents of Board Opinions
a)
The Board will issue a written opinion and order
stating the facts and reasons leading to its decision.
b)
The Board’s opinions and orders will include, but are
23
not limited to, findings of fact and conclusions of
law.
Section 107.342
Duties of the Clerk
The Clerk shall certify and maintain copies of the opinions and
orders of the Board, with the vote of each Board member recorded.
The Clerk shall serve all parties with a copy of such opinions
and orders by certified mail, return receipt requested.
SUBPART
N: MOTIONS FOR RECONSIDERATION
AND RELIEF FROM FINAL BOARD ORDERS
Section 107.360
Motions for Reconsideration
Motions for reconsideration of a final Board order shall be filed
and acted upon pursuant to Section 107.228 above.
Section 107.361
Relief from Final Orders
a)
Clerical mistakes in orders or other parts of the
record and errors therein arising from oversight or
omission may be corrected by the Board at any time on
its
own
initiative or on the motion of any party and
after such notice,
if any, as the Board orders.
Such
mistakes may be so corrected by
the
Board before any
appeal is docketed in the appellate court.
Thereafter,
while the appeal is pending,
such mistakes may be
corrected only with leave of the appellate court.
Any
corrected order will be mailed to all parties and
participants in that proceeding.
b)
On written motion, the Board may relieve a party from a
final order entered in a contested case,
for the
following:
1)
Newly discovered evidence which existed at the
time of hearing and which by due diligence could
not have been timely discovered;
or
2)
Fraud (whether intrinsic or extrinsic),
misrepresentation, or other misconduct of an
adverse party; or
3)
Void order, such as an order based upon defective
subject-matter jurisdiction.
c)
A motion under this Section does not affect the
finality of a Board order or suspend the operation of a
Board order.
The motion must be filed in the same
proceeding in which the order was entered but
is not a
continuation of the proceeding.
The motion must be
24
supported by affidavit or other appropriate showing as
to matters not of record, and must be served on all
parties to the proceeding.
d)
A motion under subsection
(b) shall be filed with the
Board within one year after entry of the order.
e)
Any
response to a motion under this Section shall be
filed within 14 days of the filing of the motion.
Section 107.362
Judicial Review of Final Board Orders
Judicial review of final Board orders shall be pursuant to
Section 41 of the Act.
Appeal is directly to the appellate
court.
IT IS
SO
ORDERED.
I,
Dorothy
M.
Gunn,
Clerk of the Illinois Pollution Control
Board,
hereby
certify
that
the
abo
e
opinion
and
order
was
adopt~d on
the
~
day
of
________________,
1994,
by.
a
vote
of
~
Control
Board
