1. Section 168.101 Purpose
      2. Section 168.102 Applicability
      3. Section 168.103 Definitions
      4. Section 168.200 Commencement of an Action
      5. Section 168.205 Notice of Contested Case Hearing
      6. Section 168.210 Appearances and Representation
      7. Section 168.215 Form of Documents
      8. Section 168.220 Filing of Documents
      9. Section 168.225 Service of Documents and Proof of Service
      10. Section 168.230 Intervention
      11. Section 168.235 Motions
      12. Section 168.240 Computation of Time
      13. Section 168.245 Pre-Hearing Conferences
      14. Section 168.250 Discovery
      15. Section 168.255 Admissions
      16. Section 168.260 Authority of Hearing Officer
      17. Section 168.265 Conduct of the Hearing
      18. Section 168.266 Burden of Proof
      19. Section 168.267 Order of the Hearing
      20. Section 168.270 Rules of Evidence
      21. Section 168.275 Testimony and Cross-Examination of Witnesses
      22. Section 168.280 Official Notice
      23. Section 168.285 Records in Other Proceedings
      24. Section 168.290 Documentary Evidence
      25. Section 168.295 Exhibits
      26. Section 168.300 Consolidation
      27. Section 168.305 Transcript of Hearing
      28. Section 168.310 Proposed Findings of Fact and Conclusions of Law
      29. Section 168.315 Proposal for Decision
      30. Section 168.320 Contested Case Record
      31. Section 168.325 Decision in Contested Case
      32. Section 168.400 Sanctions
      33. Section 168.405 Ex Parte Communication
      34. Section 168.410 Severability

TITLE 35: ENVIRONMENTAL PROTECTION
                                     
SUBTITLE A: GENERAL PROVISIONS
                                     
CHAPTER III: ENVIRONMENTAL PROTECTION AGENCY
                                     
 
PART 168
PROCEDURES FOR CONTESTED CASE HEARINGS
 
                                     
SUBPART A: INTRODUCTION
 
Section
168.101 Purpose
168.102 Applicability
168.103 Definitions
 
SUBPART B: PROCEDURES FOR CONTESTED CASE HEARINGS
 
Section
168.200 Commencement of an Action
168.205 Notice of Contested Case Hearing
168.210 Appearances and Representation
168.215 Form of Documents
168.220 Filing of Documents
168.225 Service of Documents and Proof of Service
168.230 Intervention
168.235 Motions
168.240 Computation of Time
168.245 Pre-Hearing Conferences
168.250 Discovery
168.255 Admissions
168.260 Authority of Hearing Officer
168.265 Conduct of the Hearing
168.266 Burden of Proof
168.267 Order of the Hearing
168.270 Rules of Evidence
168.275 Testimony and Cross-Examination of Witnesses
168.280 Official Notice
168.285 Records in Other Proceedings
168.290 Documentary Evidence
168.295 Exhibits
168.300 Consolidation
168.305 Transcript of Hearing
168.310 Proposed Findings of Fact and Conclusions of Law
168.315 Proposal for Decision
168.320 Contested Case Record
168.325 Decision in Contested Case
 
SUBPART C: MISCELLANEOUS PROVISIONS
 
Section
168.400 Sanctions
168.405 Ex Parte Communication
168.410 Severability
 
AUTHORITY: Implementing and authorized by Sections 4, 22(b), 39(f), 39(i)
and 39.3(e) of the Environmental Protection Act (Ill. Rev. Stat. 1983, ch.
111 1/2, pars. 1004, 1022(b), 1039(f), and 1039(i), and Supp. to Ill. Rev.
ch. 111 1/2, par. 1039.3(e)) 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 8 Ill. Reg. 6693, effective June 1, 1984.
 
SUBPART A: INTRODUCTION
                                     
 



Section 168.101 Purpose
 
This part sets forth the procedures to be followed by the Illinois
Environmental Protection Agency in contested case hearings under its
jurisdiction.
 



Section 168.102 Applicability
 
This part shall apply to all hearings held by the Agency in contested
cases. This part shall be construed to secure just determinations,
simplicity in procedure, fairness in administration and the elimination of
unjustifiable expense and delay. In the absence of a dispositive rule, a
Hearing Officer shall proceed in any manner compatible with these purposes.
 



Section 168.103 Definitions
 
"Agency" is the Illinois Environmental Protection Agency.
 
"APA" means the Illinois Administrative Procedure Act, (Ill. Rev.
Stat. 1991, ch. 127, par. 1001-1 et seq.).
 
"Business" includes business, profession, occupation, and/or
calling of every kind.
 
"Complainant" is a person who initiates an action requiring a
contested case hearing.
 
"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 or a party are required by law to be determined by
an agency only after an opportunity for a hearing. (Ill. Rev.
Stat. 1983, ch. 127, par. 1003-02). This does not include Agency
procedures for permit hearings held pursuant to 35 Ill. Adm. Code
166.
 
"Director" is the Director of the Illinois Environmental
Protection Agency.
 
"Hearing" is a hearing held after notice to interested persons or
parties, which testimony is taken by oath or affirmation and a
verbatim record of all testimony is kept.
 
"Hearing Officer" is a person duly designated as a Hearing Officer
by the Director to preside over the hearing.
 
"Interested person" is any person who may be adversely affected by
the outcome of a hearing.
 
"Intervenor" is a person who is permitted to intervene as provided
for under Section 168.230 of these rules.
 
"Party" may be a complainant, respondent, or intervenor.
 
"Person" is 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" is a person against whom a statement of noncompliance
is filed or Notice directed.
 
"State" is the State of Illinois.
 
SUBPART B: PROCEDURES FOR CONTESTED CASE HEARINGS
                                     
 



Section 168.200 Commencement of an Action
 
a) A complainant may commence a contested case by serving on all
parties a statement of noncompliance which shall state allegations
of noncompliance, set forth facts which constitute alleged
violations of a statute or Agency rules, and which are the basis
of the complainant's action.
b) Written response to the statement of noncompliance may be filed by
a respondent and must be served on all parties within 21 days
after service of the statement of noncompliance. If a respondent
fails to respond, each alleged violation of a statute or Agency
rule by the respondent shall be deemed to have been denied.
 



Section 168.205 Notice of Contested Case Hearing
 
The Complainant shall serve on all parties and the Hearing Officer a notice
of contested case hearing which shall contain:
a) A statement of the nature of the hearing including a reference to
the particular law or regulation involved;
b) A statement of the legal authority and jurisdiction under which
the hearing is to be held;
c) A statement of the date, time and place of the hearing and, if a
pre-hearing conference is scheduled by the Agency, the date, time
and place of that conference.
 



Section 168.210 Appearances and Representation
 
a) Any person entitled to participate in hearings may appear as
follows:
1) Natural persons may appear on their own behalf or by an
attorney admitted to practice in the State of Illinois.
2) A business, non-profit or government organization may appear
by any officer, employee or representative or may be
represented by an attorney admitted to practice in the State
of Illinois.
b) Attorneys admitted to practice in states other than the State of
Illinois may appear and be heard by special leave of the Hearing
Officer upon the attorney's verbal representations or written
documentation as to the attorney's admittance.
c) An attorney appearing in a representative capacity shall file a
written notice of appearance together with proof of service on all
interested persons, parties or their respective attorneys, and the
Agency Hearing Officer.
d) An attorney may withdraw an appearance and/or representation only
upon motion. However, attorneys may be substituted without motion
upon notice to all parties and the Hearing Officer if the
substitution will not delay the proceeding and a statement to the
effect is contained in the notice.
e) Interested persons shall file their appearance with the Agency
Hearing Officer who shall include their names and addresses on the
service list required in Section 168.225(e).
 



Section 168.215 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.,
"Petition to Intervene," "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 168.220 Filing of Documents
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
 



Section 168.225 Service of Documents and Proof of Service
 
a) Service of pleadings, motions or other documents shall be made by
personal delivery or by depositing in the United States mail,
first class postage prepaid, properly addressed to the last known
address of the party or the party's representative upon whom
service is to be made. One copy shall be served to each other
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.
1) The proof of service shall show the date, time and manner of
service, and may be by written acknowledgement of service, by
certificate of the person effecting the service, or by
certified mail with a return receipt.
2) The Hearing Officer shall allow the proof of service to be
amended or supplied at any time before action is taken unless
to do so would result in material prejudice to a party.
c) Service be mail is presumed complete and the time for any response
shall commence seven (7) days after mailing first class postage
prepaid.
d) The Hearing Officer shall maintain a service list of the names and
addresses of all parties and interested persons.
 



Section 168.230 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 petitioner may be adversely affected by the Agency's
final administrative decision; or
3) The petitioner 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
reason 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 168.235 Motions
 
a) Unless made during a hearing or the pre-hearing conference,
motions shall be made in writing, and shall set forth the relief
or order sought. Motions based on a matter which does not appear
on record shall be supported by affidavit. Motions shall be ruled
upon the day of such hearing or prior to such hearing after notice
to all parties and opportunity to be heard on such motion.
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 and petition to intervene
shall be allowed upon proper motion 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 168.240 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 a Saturday, Sunday or legal holiday. Where
the period of time is five days or less, Saturdays, Sundays and legal
holidays shall always be excluded in the computation of time.
 



Section 168.245 Pre-Hearing Conferences
 
a) A pre-hearing conference may be scheduled at the Hearing Officer's
discretion or as a result of a request by any party. This
conference shall be for the purpose of considering:
1) The simplification of issues of fact and law;
2) The necessity or desirability of amending pleadings or
documents for the purpose of clarification, amplification, or
limitation;
3) 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;
4) The limitation of the number of witnesses, including experts;
5) The usefulness of prior mutual exchange between or among
parties of prepared testimony and exhibits; and
6) Such other matters as may aid in the simplification 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 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 at a pre-hearing
conference. All costs related to the court reporting services
shall be borne by the party requesting such service.
 



Section 168.250 Discovery
 
a) Regarding any matter not privileged under Section 7 and 7.1 of the
Environmental Protection Act (Ill. Rev. Stat. 1983, ch. 111 1/2,
pars. 1007 and 1007.1), the Hearing Officer shall order discovery
upon written request of any party when the parties cannot agree on
the legitimate scope of discovery, if the Hearing Officer
determines that the disputed matters are relevant to the subject
matter involved in the case. 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 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. This shall include the right of reasonable
inspection of premises of any party, with protection for the
party whose premises are to be inspected with regard to
confidentiality of business process, manufacturing or other
information held to be confidential or protected.
b) It is not a ground for objection that the testimony will be
inadmissible at hearing if the information sought appears
reasonably calculated to lead to the discovery of admissible
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. 1983, 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 shall move
that an evidence deposition be taken. 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 is desired, it shall
be taken before the evidence deposition, unless the parties
stipulate otherwise or the Hearing Officer orders otherwise
upon notice and motion. The notice, order, or stipulation to
take a deposition 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
deposition 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. 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 168.270 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 168.400.
 



Section 168.255 Admissions
 
a) At least 21 days prior to a hearing, a party or the Hearing
Officer, on his own motion, 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 21 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 21 days after
service of the request. If good faith requires that a party deny
only a part, or requires qualification of a matter of which an
admission is requested, the party shall specify so much of it as
is true and deny only 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.
 



Section 168.260 Authority of Hearing Officer
 
a) The Hearing Officer shall conduct a fair and impartial hearing,
take all necessary action to avoid undue delay, maintain order,
and ensure development of a clear and complete record.
b) The Hearing Officer shall have all powers necessary to these ends,
including, but not limited to the authority to:
1) Direct parties and interested persons to enter their
appearances on the record;
2) Conduct prehearing conferences;
3) Require oaths and affirmations;
4) Require production of documents;
5) Require attendance of employees of a party at a hearing upon
motion and a showing by the moving party that employees
possess knowledge of material facts;
6) Examine witnesses and interested parties and direct witnesses
to testify;
7) Limit the number of times any witness or interested party may
testify, limit repetitious or cumulative testimony;
8) The Hearing Officer on his own motion, or on the motion of a
party, shall exclude witnesses from the hearing room until
they are called to testify if the presence of the witnesses
would be prejudicial to either party;
9) Rule or reserve ruling on the admissibility of evidence and
amendments to pleadings;
10) Continue a hearing from day to day or adjourn it to a later
date by announcement at the hearing or by written or oral
notice to all parties and interested persons;
11) Impose sanctions in accordance with Section 168.400; and
12) The Hearing Officer on his own motion, or on the motion of a
party may order an expedited hearing if a showing is made
that irreparable harm would occur and that all discovery had
been completed.
 



Section 168.265 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 or ordered by the
Hearing Officer pursuant to the Hearing Officer's authority under
Section 168.260(a). In consolidated cases or where intervention
has been granted the Hearing Officer shall designate the order.
 



Section 168.266 Burden of Proof
 
The Complainant has the burden to prove by the preponderance of the
evidence its allegations against the respondent.
 



Section 168.267 Order of the Hearing
 
The following shall be the order of the hearing subject to modification by
the Hearing Officer if the Hearing Officer determines that such
modification would avoid undue delay and would not prejudice the rights of
any party.
a) Presentation, argument, and disposition of motions preliminary to
a hearing on the merits of the matters raised in the complaint;
b) Presentation of opening statements;
c) Complainant's case in chief;
d) Respondent's case in chief;
e) Intervenor's case in chief;
f) Complainant's case in rebuttal;
g) Complainant's opening argument, which may include legal argument;
h) Respondent's closing argument, which may include legal argument;
i) Intervenor's closing argument, which may include legal argument;
j) Complainant's closing argument, which may include legal argument;
k) Presentation and argument of all motions prior to submission of
the transcript to the Hearing Officer; and
l) A schedule for submission of briefs to the Hearing Officer.
 



Section 168.270 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 168.275 Testimony and Cross-Examination of Witnesses
 
a) Written narrative testimony may be introduced by a party in a
hearing only if provided to all other parties of record prior to
the date of the hearing and only after the opposing parties have
had an opportunity to object to all or portions of the written
testimony and to obtain a ruling on said objections prior to its
introduction. The person whose testimony is submitted shall be
available at the hearing for cross-examination.
b) All parties may cross-examine any other party's witness. The
scope of cross-examination shall be defined by the scope of direct
examination.
c) Employees of one party required by order of the Hearing Officer to
attend a hearing may be examined as if under cross-examination.
d) 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.
e) Questions calling for an opinion of an expert witness need not be
hypothetical in form.
 



Section 168.280 Official Notice
 
a) Official notice may be taken of matters of which the circuit
courts of Illinois may take judicial notice.
b) Official notice may also be taken of generally recognized
technical or scientific facts whithin 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 168.285 Records in Other Proceedings
 
a) The Hearing Officer shall order the record, or any part thereof,
of any relevant proceeding before the Agency or 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 168.290 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 of such an act, transaction, occurrence or
event or within a reasonable 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 168.295 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.
The Hearing Officer may deny admission as evidence of proposed
exhibits not reviewed or exchanged if no prehearing conference was
held or if it is shown that the exhibits were out of the party's
custody or did not exist at the time of the original request.
b) The exhibits shall be marked for identification in accordance with
the following standard markings:
1) C = complainant;
2) R = respondent;
3) I = intervenor
c) Other additional markings required for clarity may be used as the
Hearing Officer may direct.
 



Section 168.300 Consolidation
 
At any time after a contested case has been initiated, any party or the
Hearing Officer may move to consolidate other contested cases involving
common questions of fact or law between identical parites or between any
party to the contested case and the Agency. Such motion shall be granted
if the Hearing Officer determines that to do so would be in the best
interest of the parties, and would result in the expeditious and complete
determination of the issues.
 



Section 168.305 Transcript of Hearing
 
a) Within 21 days of the completion of the hearing the complainant
at his/her own cost shall furnish the Agency a legible copy of a
complete stenographic transcript of the hearing. Any unreasonable
delay in the filing of the transcript may subject the petitioner
to sanctions in accordance with Section 168.400.
b) After the transcript is filed, the Hearing Officer shall for ten
(10) days after the date of filing entertain requests for
corrections and enter corrections either on the record of a
subsequent hearing or in an Order.
c) Any person may inspect and copy the hearing record pursuant to
Illinois Environmental Protection Agency requirements for Public
Inspection of Agency Documents filed with the Secretary of State's
office on June 2, 1978.
 



Section 168.310 Proposed Findings of Fact and Conclusions of Law
 
a) If the Hearing Officer finds it necessary in order to render a
decision, 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 168.315 Proposal for Decision
 
a) After the hearing is concluded, the Hearing Officer or 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 and made a part of the record;
2) The Agency's experience, technical competence and specialized
knowledge shall be utilized in the evaluation of the evidence
if presented during the course of the hearing and made part
of the record, and the Hearing Officer determines that such
evidence is relevant, however, it must be stated in the
proposal for decision where in relation to the evidence this
has been used;
3) Stipulations of fact; and
4) 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 of fact;
5) Specific conclusions of law 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 168.320 Contested Case Record
The record in a contested case shall include:
a) All pleadings (including all notices and responses thereto),
motions, and rulings;
b) The hearing record;
c) Evidence received;
d) A statement of matters officially noticed pursuant to Section
168.280;
e) Offers of proof, objections and rulings thereon;
f) Proposed findings and exceptions;
g) Any decision, opinion or report by the Hearing Officer;
h) All staff memoranda or data submitted to the Hearing Officer or
members of the Agency in connection with their consideration of
the case;
i) Any stipulations, settlement agreements, or consent orders entered
into by any of the parties prior to the hearing;
j) Any communication prohibited by Section 15 of the APA but such
communications shall not form the basis for any finding of fact;
k) Proposed finding of fact and conclusion of law; and
l) Proposal for decision.
 



Section 168.325 Decision in Contested Case
 
a) Within 21 days after service of the proposal for decision the
parties may file with the Director exceptions, and proposed
findings of fact, and present a brief to the Director, and
thereafter the Director 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 stated 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 agency rules, 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 or any decision or order. Upon request a copy of the
decision or order shall be delivered or mailed forthwith to each
party or to the party's attorney of record.
 
SUBPART C: MISCELLANEOUS PROVISIONS
                                     
 



Section 168.400 Sanctions
 
a) If a party or any person refuses to comply with any provision of
these rules or fails to comply with any order entered under these
rules, the Hearing Officer shall enter such orders as are just
including, among others, the following:
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.
c) If a party fails to answer any interrogatory served upon him, the
proponent of the interrogatory may on notice move for an order
compelling an answer. If the Hearing Officer finds that the
refusal or failure was without substantial justification, the
Hearing Officer shall require the party or person to answer.
 



Section 168.405 Ex Parte Communication
 
The Hearing Officer, after notice of a contested case hearing, shall not
communicate directly or indirectly in connection with any issue of fact or
any other issue with any person or party, except upon notice and
opportunity for all parties to participate.
 



Section 168.410 Severability
 
If any portion of these rules 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 portions of these
rules.
 

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