ILLINOIS POLLUTION CONTROL
BOARD
November 19,
1981
Ir•~ THE MATTER
OF:
R80—18
;~•1m~1DMENTTO CHAPTER
1:
PROCEDURAL
RULES
304
AND
308
)
AUOPTED RULE:
FINAL ORDER.
FIr~ALORDER OF THE BOARD
(by
3.
Anderson):
On October
8,
1981 the Board directed that the proposed
rules be sent to
the Joint Committee on Administrative Rules
(JCAR)
for its
“second notice” review.
In response to JCAR
comments,
the Board has added a new clarifying sentence to
the end of Rule 308(e)
and has corrected the lettering of
the proposed addition to Rule 304.
JCAR has no objection to
the
rules with these modifications.
The Board hereby adopts the following rules.
Deleted
language i~lined through,
new language is underlined.
Chapter
I:
Procedural
Rules
304
Notice,
e~
Formal
Complaint,
and
Answer
(a)—(c)
No
change.
(d)
Respondent
may
file
an
answer
within
30 days of
receipt of the_co~laint.
All material allega?ions
~5~fthe complaint
shall
he taken as denied if
not
!pecificaily admitted by the answer, or
if
no
answer is
filed.
Any facts constituting anaffir—
mative defense~_~hichwould be likelX to take the
complainant_by surprise must be plainly set
fo~th
~j~or to hearing in the answer or
in a supplemental
answer
filed
pursuant to Rule 326(b).
308
Motions and Answers Responses
(a)
~
~
~
a~-~e-ke~’t-as-4eft4e4.r
All motions preliminary
to a hearing shall be presented to the Board or
to
the Hearing Officer at least 14 days prior to the
44—125
date
of the hearing, or on such other date as the
Hearing
Officer
or
the
Board
shall
designate.
All
motions by respondent to dismiss or strike the
complaint or challenging the jurisdiction of the
Board
shall be filed within 14 days after receipt
of the complaint shall be directed to the Board
and shall he disposed of prior to the hearing on
the complaint,
subject, however to the provisions
of subsection
(e) and
(i)
of this Rule,
Motions bj~
~
ru
dismiss an action aaainst
or all
arties
as ~
claims shalihe
directed to the Board and may
bemade~j~_~n
the hearing record, or m~
_madein writing at
ani time prior
to issuance of the Board’s decision.
All motions must be served on all parties, including
the Agency and its representative and the Hearing
Officer designated
by
the
Board
with
proof
of
service,
Oral argument on motions before
the
Board
shall be
permitted
only
by
order
of
the
Board.
(b)
Unless
made
orally
on the record during a hearing
or
unless the Hearing Officer directs otherwise,
a
motion
shall be
in
writing, shall state the
reasons
for and grounds upon which the motion
is_m~de~~
may
be
accompanied
by
any
affidavits
or
other
evidence
relied
on,
and,
when
appropriate,
by
a
proposed order.
All written motions by complainant
to voluntarily dismiss an enforcement action
shall
be accompanied
by affidavit attesting to
the
truth
of the facts alleg~ed.
(c)—(d)
No change.
(e)
The Hearing
Officer
shall rule upon
all
motions,
except that he shall have no authority
to dismiss,
or rule upon a motion to dismiss or decide a
proceeding on the merits,
or for failure to state
a claim,
or for want of jurisdiction, or to strike
any claim or defense
for
insufficiency or want of
prc~of. The
Hearing
Officer
shall refer any such
motions
to the Board pursuant to subparagraph
(a)
of this section.
Notwithstanding the provisions
of paragraph
(a)
above,
the Board in its discretion,
may direct that hearing on the proceeding
be
conducted and,
in its discretion, may take all
motions directed
to
it
with the case.
This con-
ditional ruling by the Board shall not foreclose
a party from advancing the same contentions as to
jurisdiction or adequacy of the complaint upon the
completion of the hearing.
When ruling on
a motion
by
complainant
for
voluntary
dismissal
of
an
action
the Board shall,
for reasons stated
in its Order,
dismiss the action without leave to reinstaté
if
justice so
demands.
Among the factors to be
44—126
3
considered in making such a determination are
evidence and ar~~~ts
concerning the action’s
~e
and procedural history, and the pre~udicial
effects,
if
ar~y,of dismissing the actron witlE
leave to reinstate.
(f)—(i)
No change.
As these changes are not substantial,
the Board hereby
adopts the Proposed Opinion of October
8,
1981, without change,
as
its
Final Opinion in this rulemaking.
IT
IS
SO
ORDERED,
I, Christan
L.
Moffett, Clerk of
the
Illinois Pollution
Control Board, hereby
certif,y that
the
above Order was adopted on
the
~
day of ~
____,
1981 by
a vote of
~
~
Christan L. Moffet
,
êrk
Illinois Pollution C
~ol Board
44—127