BOARD PROPOSAL FOR PUBLIC COMMENT OCTOBER 3, 1996

Part 101-1

TITLE 35: ENVIRONMENTAL PROTECTION

SUBTITLE A: GENERAL PROVISIONS

CHAPTER I: POLLUTION CONTROL BOARD

PART 101

GENERAL RULES

SUBPART A: GENERAL PROVISIONS

Section

101.100

Applicability

101.102

Severability

101.104

Repeals

101.106

Board Authority

101.108

Board Process

101.110

Public Participation

101.112

Conflict of Interest

101.114

Ex Parte Contacts

SUBPART B: DEFINITIONS

Section

101.200

Definitions Contained in the Act

101.202

Definitions by the Board

SUBPART C: COMPUTATION OF TIME, FILING, SERVICE OF DOCUMENTS, NOTICE OF

WITHDRAWAL OF CASE, AND STATUTORY DECISION DEADLINES

Section

101.300

Computation of Time

101.302

Filing of Documents

101.304

Service of Documents

101.306

Incorporations of Documents by Reference

101.308

Statutory Decision Deadlines and Waiver of Deadlines

101.310

Notice of Withdrawal of Case

SUBPART D: PARTIES, JOINDER, AND CONSOLIDATION

Section

101.400

Appearances, Withdrawals and Substitutions of Attorneys in Adjudicatory Cases

101.402

Intervention or Joinder of Parties

101.404

Agency as a Party in Interest

101.406

Consolidation of Claims

101.408

Severance of Claims

SUBPART E: MOTIONS

Section

101.500

Filing of Motions and Responses

101.502

Motions Directed to the Hearing Officer

101.504

Contents of Motions and Responses

101.506

Motions Attacking the Sufficiency of the Petition of Complaint

101.508

Motions Preliminary to Hearing

101.510

Motion to Cancel Hearing

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BOARD PROPOSAL FOR PUBLIC COMMENT OCTOBER 3, 1996

Part 101-2

101.512

Motion for Expedited Review

101.514

Motions to Stay Proceedings

101.516

Motions for Summary Judgment

101.518

Motion for Interlocutory Appeal of Hearing Officer Order

101.520

Motions for Reconsideration

101.522

Motions for Extension of Time

SUBPART F: DISCOVERY AND HEARINGS

Section

101.600

Hearing Overview

101.602

Notice of Board Hearings

101.604

Formal Board Transcript

101.606

Informal Recordings of the Proceedings

101.608

Default

101.610

Duties and Authority of the Hearing Officer

101.612

Schedule for Completion of the Record

101.614

Production of Information

101.616

Discovery

101.618

Admissions

101.620

Interrogatories

101.622

Subpoenas

101.624

Examination of Adverse and Hostile Witness

101.626

Information Produced at Hearing

101.628

Statements from Non-Party Participants

SUBPART G: ORAL ARGUMENT

Section

101.700

Oral Argument

SUBPART H: SANCTIONS AND COSTS

Section

101.800

Sanctions for Failure to Comply with Procedural Rules, Board Orders, or Hearing

Officer Orders

101.802

Sanctions for Abuse of Discovery Procedures

SUBPART I: DECLARATORY RULINGS

Section

101.900

Declaratory Rulings

SUBPART J: FINAL RELIEF, REVIEW OF FINAL BOARD ORDERS, INTERLOCUTORY

APPEAL, AND JUDICIAL REVIEW OF BOARD ORDERS

Section

101.1000

Board Decisions

101.1002

Motion for Reconsideration

101.1004

Relief from and Review of Final Opinions and Orders

101.1006

Judicial Review Of Board Orders

101.1008

Interlocutory Appeal

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BOARD PROPOSAL FOR PUBLIC COMMENT OCTOBER 3, 1996

Part 101-3

APPENDIX A

Captions

ILLUSTRATION A

Enforcement Case

ILLUSTRATION B

Citizen’s Enforcement Case

ILLUSTRATION C

Variance

ILLUSTRATION D

Adjusted Standard Petition

ILLUSTRATION E

Joint Petition for an Adjusted Standard

ILLUSTRATION F

Permit Appeal

ILLUSTRATION G

Underground Storage Tank Appeal

ILLUSTRATION H

Pollution Control Facility Siting Appeal

ILLUSTRATION I

Administrative Citation

ILLUSTRATION J

General Rulemaking

ILLUSTRATION K

Site-specific Rulemaking

APPENDIX B

Appearance Form

APPENDIX C

Withdrawal of Appearance Form

APPENDIX D

Notice of Filing

APPENDIX E

Certificate of Service

ILLUSTRATION A

Service by Non-Attorney

ILLUSTRATION B

Service by Attorney

APPENDIX F

Notice of Withdrawal

APPENDIX G

Board Forms

ILLUSTRATION A

Citizen’s Formal Enforcement Complaint

ILLUSTRATION B

Citizen’s Request for Informal Agency Investigation

ILLUSTRATION C

Petition for Variance

ILLUSTRATION D

Petition for an Extension of Time to File a Petition for Review of

an Agency Final Decision

ILLUSTRATION E

Petition to Review Final Agency Decision

ILLUSTRATION F

Petition to Review Final Agency Underground Storage Tank

Decision

ILLUSTRATION G

Petition to Review a Pollution Control Facility Siting Decision

ILLUSTRATION H

Petition to Contest Administrative Citation

AUTHORITY: Implementing Sections 5, 7.1, 7.2, 26, 27, 28, 29, 31, 32, 33, 35, 36, 37, 38, 40,

40.1, 40.2, 41, and 58.7 of the Environmental Protection Act (Act) [415 ILCS 5/5, 7.1, 7.2, 26, 27 ,

28, 29, 31, 32, 33, 35, 36, 37, 38, 40, 40.1, 40.2, 41, and 58.7] and authorized by Sections 26 and 27

of the Act [415 ILCS 5/26 and 27].

SOURCE: Filed with Secretary of State January 1, 1978; codified 6 Ill. Reg. 8357; Part repealed, new

Part adopted in R88-5A at 13 Ill. Reg. 12055, effective July 10, 1989; amended in R90-24 at 15 Ill.

Reg. 18677, effective December 12, 1991; amended in R92-7 at 16 Ill. Reg. 18078, November 17,

1992; Part repealed, new Part adopted in R97-8 at Ill. Reg. , effective .

SUBPART A: GENERAL

Section 101.100 Applicability

a)

This

 

Part sets forth the rules generally applicable to proceedings before the Illinois

Pollution Control Board, and should be read in conjunction with procedural rules for

the Board’s specific processes, found at 35 Ill. Adm. Code Parts 103 through 130 and

the Board’s Administrative Rules, found at 2 Ill. Adm. Code Part 2175. In the event

of a conflict between the rules of this Part and those found in subsequent parts, the

more specific requirement applies.

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BOARD PROPOSAL FOR PUBLIC COMMENT OCTOBER 3, 1996

Part 101-4

b)

The provisions of the Code of Civil Procedure [735 ILCS 5/1-101

et seq

.] and the

Supreme Court Rules [Ill. S.Ct.Rules] do not expressly apply to proceedings before

the Board. However, the Board may look to the Code of Civil Procedure and the

Supreme Court Rules for guidance where the Board’s procedural rules are silent.

Section 101.102 Severability

If any provision of this Part or its application to any person or under any circumstances is

adjudged invalid, such adjudication does not affect the validity of this Part as a whole or of

any portion not adjudged invalid.

Section 101.104 Repeals

All of the Board’s Resolutions adopted in 1970 through 1996, are repealed and are superseded by 35 Ill.

Adm. Code 101-130.

Section 101.106 Board Authority

a)

Pursuant to the Illinois Environmental Protection Act (Act) [415 ILCS 5/1

et. seq

.],

the Board has the authority to

determine, define and implement the environmental

control standards applicable in the State of Illinois and may adopt rules and

regulations in accordance with Title VII of this Act

. [415 ILCS 5/(b).]

b)

More specifically, the Board has the

authority to conduct hearings upon complaints

charging violations of this act or of regulations thereunder, upon petitions for

variances; upon petitions for review of the Agency’s denial of a permit in accordance

with Title X of this Act; upon petition to remove a seal under Section 34 of this Act;

upon other petitions for review of final determination which are made pursuant to the

Act or Board Rules and which involve a subject which the Board is authorized to

regulate; and such other hearings as may be provided by rule

. [415 ILCS 5/5 (d).]

Section 101.108 Board Processes

a)

Board proceedings can generally be divided into two categories: rulemaking

proceedings and adjudicatory proceedings. Specific procedures for rulemaking

proceedings are found at 35 Ill. Adm. Code 125. Procedures for adjudicatory

proceedings are found at 35 Ill. Adm. Code 103-108.

b)

The following are various types of rulemakings that the Board processes: Identical in

Substance, Clean Air Act/Fast track, Federally Required Rulemaking, General

Rulemaking, Site-Specific Rulemaking. Procedural rules for these types of

proceedings can be found at 35 Ill. Adm. Code 125.

c)

The following are various types of Board adjudicatory proceedings: Permit Appeals,

UST Appeals, Petition to Contest Siting Decision, Enforcement Actions,

Administrative Citations, Variance Petition, Adjusted Standard Petition. Procedural

rules for these proceedings can be found at 35 Ill. Adm. Code 103 through 108.

d)

Decisions of the Board will be made at meetings open to the public. Four members of

the Board constitute a quorum. Four affirmative votes are required for the adoption of

any opinions and orders of the Board, except in a proceeding to remove a seal under

Section 34(d) of the Act. [415 ILCS 5/34(d).]

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BOARD PROPOSAL FOR PUBLIC COMMENT OCTOBER 3, 1996

Part 101-5

Section 101.110 Public Participation

a)

General. The Board encourages public participation in all of its proceedings. The

extent to which the Act allows for such participation varies, depending on the type of

Board proceeding involved and the party status of the person or persons seeking to

participate as discussed below and in the specific individual parts governing that

proceeding. These procedural rules attempt to delineate the parameters of public

participation for each process type. In the context of a particular adjudicatory case or

rulemaking, such parameters may be more specifically delineated by Board or hearing

officer order.

b)

Party/Non-Party Status. Who constitutes proper parties to each type of adjudicatory

proceeding before the Board is delineated in the specific requirements for each case-

type before the Board. A person who wishes to participate in a Board adjudicatory

process and is not a party shall be deemed a non-party participant and shall have only

those rights specifically delineated in these rules.

c)

Amicus Curie Briefs. Amicus curie briefs may be filed in any adjudicatory proceeding

by any interested person. Such briefs shall consist of argument only and may not raise

facts which are not in evidence in the relevant proceeding. Such briefs shall not exceed

20 pages. Amicus curie briefs will be considered by the Board as time allows. The

filing of such briefs shall not serve to delay decision making of the Board.

Section 101.112 Conflicts of Interest

a)

No person who is currently employed by the Board whether full time, part time, or

under contract, or who is serving as a Board member may appear or practice before

the Board.

b)

No person who has been a Board Member or an employee of the Board shall represent

or advise anyone in connection with a contested case or open rulemaking docket in

which the person participated personally and substantially as a Board Member or

employee, unless the Board and all parties consent after disclosure. Additionally, no

person who has been a Board Member or an employee of the Board may represent

anyone before the Board until six months after his or her termination date. For

purposes of this subsection, representation includes but is not limited to, work as

either a legal or technical consultant on a case.

c)

Upon written motion by a party, or on its own motion, the Board may disqualify a

hearing officer for bias or conflict of interest. [5 ILCS 100/10 30(b).]

Section 101.114 Ex Parte Contacts

a)

No Board member, hearing officer, or employee of the Board shall communicate ex

parte with any person not employed by the Board with respect to the substance of any

adjudicatory case or rulemaking proceeding pending before the Board.

b)

Information which is received concerning an individual pollution source during a

rulemaking proceeding shall not be considered an ex parte contact in the event that a

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BOARD PROPOSAL FOR PUBLIC COMMENT OCTOBER 3, 1996

Part 101-6

case is currently pending before the Board or a case is later filed concerning the

source.

c)

An ex parte communication received by a Board Member or employee of the Board

shall be made part of the record of the pending matter, including all written

communications, all written responses to communications, and a memorandum stating

the substance of all oral communications and all responses made and the identity of

each person from whom the ex parte communication was received

. [5 ILCS 100/10-

60(c)]

d)

Communications regarding matters of procedure and practice, such as the format of

pleadings, number of copies required, manner of service, and status of proceedings,

are not considered ex parte communications.

[5 ILCS 100/10-60(d).]

SUBPART B: DEFINITIONS

Section 101.200

Definitions Contained in Act

Unless otherwise provided, the definitions of the Act apply to the Board’s procedural rules, found in 35

Ill. Adm. Code 101 through 130.

Section 101.202

Definitions for Board’s Procedural Rules

The following definitions also apply to the Board’s Procedural Rules, found in 35 Ill. Adm. Code 101

through 130:

"Act" means the Environmental Protection Act. [415 ILCS 5/1

et seq

.]

"Adjudicatory proceeding" or “adjudicatory action” means an action of a quasi-judicial nature

brought before the Board pursuant to authority granted to the Board under Section 5(d) of the Act.

[415 ILCS 5/5(d).] Adjudicatory proceedings include, but are not limited to, enforcement,

variance, permit appeal, pollution control facility siting-appeal, Underground Storage Tank (UST)

Fund determination, water well set back exception, adjusted standard, and administrative citation

proceedings. Adjudicatory proceedings do not include regulatory, quasi-legislative, or

informational proceedings.

"Adjusted standard" or "AS" means a permanent alternative standard granted by the Board in an

adjudicatory proceeding pursuant to Section 28.1 of the Act and 35 Ill. Adm. Code 104.Subpart D

which applies instead of the rule or regulation of general applicability. [415 ILCS 5/28.1.]

"Administrative citation" or "AC" means a citation issued pursuant to Section 31.1 of the Act [415

ILCS 5/31.1] by the Agency, or by a unit of local government acting as the Agency's delegee

pursuant to Section 4(r) of the Act. [415 ILCS 5/4(r).]

"Administrative citation review (appeal)" means a petition for review of an administrative citation

filed pursuant to Section 31.1(d) of the Act. [415 ILCS 5/31.1(d).] (See 35 Ill. Adm. Code 108.)

“Affidavit” means a sworn statement attesting that a statement or action is true, witnessed by a

Notary Public.

"Affidavit of service" means an affidavit that certifies the service of a document upon specified

person(s).

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BOARD PROPOSAL FOR PUBLIC COMMENT OCTOBER 3, 1996

Part 101-7

"Agency" means the Illinois Environmental Protection Agency as established by Section 4 of the

Act. [415 ILCS 5/4.]

"Agency investigation" means an investigation conducted by the Agency pursuant to Section 30 of

the Act. [415 ILCS 5/30.]

"Agency recommendation" means the document filed by the Agency pursuant to Sections 37(a) and

28.1(d)(3) of the Act in which the Agency provides its recommended disposition of a petition for

variance or an adjusted standard. [415 ILCS 5/37(a) and 5/28.1(d)(3).] This includes, but is not

limited to, a recommendation to deny, or a recommendation of grant with or without conditions.

(See 35 Ill. Adm. Code 104.218 and 104.416.)

"Amicus curie brief" means a brief filed in a proceeding with permission of the Board by a non-

party participant who has interest in, or views, on the subject matter of the proceeding. (See 35 Ill.

Adm. Code 101.110 and 101.628.)

"APA" means the Illinois Administrative Procedure Act [5 ILCS 100/1-1].

"Applicant" means any person who submits, or has submitted, an application for a permit or for

local siting approval pursuant to any of the authorities to issue permits or granting of siting

approval identified in Sections 39, 39.1, and 39.5 of the Act. [415 ILCS 5/39, 5/39.1 and 39.5.]

"Article" means

any object, material, device or substance, or whole or partial copy thereof,

including any writing, record, document, recording, drawing, sample, specimen, prototype, model,

photograph, culture, microorganism, blueprint or map

. [415 ILCS 5/7.1.]

"Attorney General" means the Attorney General of the State of Illinois and/or representative(s).

"Authorized representative" means any person who is authorized to act on behalf of another person

by formal agreement or contract.

"Board" means the Illinois Pollution Control Board as created in Section 5 of the Act or, if

applicable, its designee. [415 ILCS 5/5.]

"Board decision" means that a majority of members of the Board at an open Board meeting vote in

agreement on a matter. [415 ILCS 5/5(a).]

"Board designee" means an employee of the Board who has been given authority by the Board to

carry out a function for the Board. (i.e. The Clerk of the Board, Assistant Clerk of the Board or

Hearing Officer.)

“Board meeting” means an open meeting held by the Board pursuant to Section 5(a) of the Act in

which the Board makes its decisions and determinations. [415 ILCS 5/5(a).]

"Board’s procedural rules" means the Board’s regulations set forth at 35 Ill. Adm. Code 101

through 130.

"Brief" means a written statement that contains a summary of the facts of a case, the pertinent laws,

and an argument of how the law applies to the facts supporting a position.

“CAAPP” means the Clean Air Act Permit Program, 42 U.S.C. 7661

et seq

.

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BOARD PROPOSAL FOR PUBLIC COMMENT OCTOBER 3, 1996

Part 101-8

"Case" means an adjudicatory proceeding before the Board brought pursuant to the Act and the

Board’s regulations.

"Certification of acceptance" means a certification, executed by a successful petitioner in a

variance proceeding, in which the petitioner agrees to be bound by all terms and conditions that the

Board has affixed to the grant of variance. Failure to execute renders variance null and void

pursuant to 35 Ill. Adm. Code 104.240.

"Chairman" means the Chairman of the Board designated by the Governor pursuant to Section 5(a)

of the Act. [415 ILCS 5/5(a).]

"Citizen’s enforcement proceeding” or “citizen’s enforcement action" means an enforcement action

brought before the Board pursuant to Section 31(b) of the Act by any person who is not authorized

to bring the action on behalf of the People of the State of Illinois. [415 ILCS 5/31(b).]

"Clean Air Act" means the federal Clean Air Act, 42 U.S.C. 7401 et seq. (See also 415 ILCS

5/39.5(1).)

"Clean Water Act" means the federal Clean Water Act, 33 U.S.C. 1251

et seq

.

"Clerk" means the Clerk of the Board.

"Complaint" means the initial filing that begins an enforcement proceeding pursuant to Section 31

of the Act and 35 Ill. Adm. Code 103. [415 ILCS 5/31.]

"Compliance plan" means a detailed description of a program designed to achieve full compliance

with the Act and Board regulations.

"Copy" means

any facsimile, replica, photograph, or other reproduction or an article, and any

note, drawing or sketch made of or from an article

. [415 ILCS 5/7.1.]

“Counter-complaint” means any cause of action in favor of one or more respondents against one or

more complainants.

“Cross-complaint” means a pleading filed by a respondent or cross-respondent setting forth any

cause of action he has against a person alleged to be liable thereon, whether or not such person is

already a party to the action. A cross-complaint may be filed if the cause of action asserted in the

cross-complaint, (1) arises out of the same transaction, occurrence, or series of transactions or

occurrences as the cause brought against him or (2) asserts a claim, right, or interest in the property

or controversy which is the subject of the cause brought against the respondent. (See 35 Ill. Adm.

Code 103.206.)

“Cross-media impacts” means impacts that concern multiple environmental areas, such as air, land

and/or water.

"CSO" means combined sewer overflow.

"Decision date" means the Board meeting immediately preceding the decision deadline.

"Decision deadline" means the last day of any decision period, as established in the Act, within

which the Board is required to render a decision in an adjudicatory proceeding. (See 35 Ill. Adm.

Code 101.Subpart C.) (See e.g. Section 38(a), 40, and 40.1 of the Act which establish a 120 day

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BOARD PROPOSAL FOR PUBLIC COMMENT OCTOBER 3, 1996

Part 101-9

decision deadline for variances permit appeals and review of pollution control facility siting

decisions.)

"Decision period" means the period of time established by the Act within which the Board is

required to make a Board decision in certain adjudicatory proceedings. (See 35 Ill. Adm. Code

101.Subpart C.) (See e.g. Section 38(a), 40, and 40.1 of the Act which establish a 120 day

decision deadline for variances, permit appeals and review of pollution control facility siting

decisions.)

“Declaratory ruling” means an opinion of the Board stating the meaning or applicability of a

section or sections of the Act or Board regulations which is issued in response to a request made

pursuant to 35 Ill. Adm. Code 101.Subpart I.

“Deinked”

means paper that has been processed to remove inks, clays, coatings, binders and other

contaminants

. (Illinois Solid Waste Management Act, Section 2.1, P.A. 87-485, effective January

1, 1992.)

"Delegated unit" means the unit of local government to which the Agency has delegated its

administrative citation or other function pursuant to Section 4(r) of the Act. [415 ILCS 5/4(r).]

“Department or DNR” means the Department of Natural Resources.

"Discovery" means a pre-hearing process that can be used by one party to obtain facts and

information about the case from the other party in order to assist the party's preparation for trial.

The discovery tools include but are not limited to: depositions upon oral and written questions,

written interrogatories, production of documents or things, and requests for admission.

"DNS" means the Illinois Department of Nuclear Safety.

“DOA” means the Department of Agriculture.

"Document" means pleading, notice, motion, affidavit, memorandum, brief, petition, letter or

other paper or combination of papers required or permitted to be filed.

“Duplicitious or Duplicative” means the matter is identical or substantially similar to one brought

in another forum.

"Enforcement proceeding” or “action" means an adjudicatory proceeding brought upon a formal

complaint filed pursuant to Section 31(a) of the Act by the Attorney General, State’s attorney or

other persons, in which complaint there is alleged violation of the Act or any rule or regulation or

Board order thereunder or any permit or term or condition thereof. [415 ILCS 5/31(a).]

"Evidence" means a paper, drawing, map, chart, report, study, or other tangible thing produced

and submitted at hearing, or testimony received at hearing which is produced to prove the existence

or nonexistence of some matter of fact.

“Ex parte communication" means a communication with a Board member or Board employee that

is conducted outside the record of an adjudicatory proceeding, the content of which communication

reflects on the merits of any position advocated in the adjudicatory proceeding. Communications

dealing solely with procedural issues are not ex parte communications. (See also Section 101.114

of this Part.)

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BOARD PROPOSAL FOR PUBLIC COMMENT OCTOBER 3, 1996

Part 101-10

"Fast track rulemaking" means a Clean Air Act rulemaking conducted pursuant to Section 28.5 of

the Act. [415 ILCS 5/28.5.]

"Federally required rule" means

a rule that is needed to meet the requirements of the federal Clean

Water Act, Safe Drinking Water Act, Clean Air Act (including required submission of a state

implementation plan), or Resource Conservation and Recovery Act, other than a rule required to be

adopted under subsection (c) of Section 13, Section 13.3, Section 17.5, subsection (a) or (d) of

Section 22.4, or subsection (a) of Section 22.7

. [415 ILCS 5/28.2.]

"Filing" means the act of delivering a document into the custody of the Clerk with the intention of

incorporating that document into a proceeding or record before the Board.

“Final order” means an order of the Board that terminates the case leaving nothing further to

litigate or decide and which is appealable to an appellate court pursuant to Section 41 of the Act.

[415 ILCS 5/41.] (See 35 Ill. Adm. Code 101.Subpart J.)

"Form or forms" means a document which contains the information in a reasonably similar format

as the Board’s form or forms as set forth in 35 Ill. Adm. Code 101.Appendix G or on the Board’s

Home Page at http://www.state.il./us/pcb/pcbhpage.htm.

“Frivolous” means a request for relief that the Board does not have the authority to grant.

"Hearing" means a public proceeding where the parties to an action, and other interested persons as

provided for by the Act and the Board’s procedural rules, present testimony and argument regarding

their positions.

"Hearing officer" means a person licensed to practice law in the State of Illinois who presides over

a hearing and otherwise carries out record development responsibilities as directed by the Board.

"Home Page” or “World Wide Web Site" means the Board’s computer-based informational service

accessed on the internet at http://www.state.il.us/pcb/pcbhpage.htm.

"Identical-in-substance rules (or regulations)" means

State regulations which require the same

actions with respect to protection of the environment, by the same group of affected persons, as

would federal regulations if USEPA administered the subject program in Illinois

. [415 ILCS

5/7.2.]

"Incorporation by reference" means to make one document become part of another document by

referring to the first document that is to be made part of the second document. (See 35 Ill. Adm.

Code 101.306.)

"Initial filing" means the filing which initiates a Board proceeding. For instance, the initial filing

in an enforcement proceeding is the complaint; in a permit appeal it is a petition for review, and in

a regulatory proceeding it is the proposal.

"Inquiry hearing" means a hearing conducted by the Board with the intent of gaining perspective

from the public regarding the need for a rulemaking in a given area.

"Interlocutory appeal" means an appeal of a Board decision which is dispositive of all the contested

issues in the case. (See 35 Ill. Adm. Code 101.1004(b)(4).)

"Intervenor" means a person who, with the leave of the Board, voluntarily participates as a party in

an adjudicatory proceeding.

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BOARD PROPOSAL FOR PUBLIC COMMENT OCTOBER 3, 1996

Part 101-11

"JCAR" means the Joint Committee on Administrative Rules.

"Joinder" means giving parties brought into an action by the Board the same rights as original

parties as co-petitioners, co-complainants or co-respondents.

"Local government enforcement proceeding” or “action" means an action brought pursuant to

Section 31(b) of the Act by a unit of local government. [415 ILCS 5/31(b).]

“Material” means important; more or less necessary; having influence or effect; going to the

merits; having to do with matter, as distinguished from form. Representation relating to matter

which is so substantial and important as to influence party to whom made is “material”.

“Misnomer” means a mistake in name, giving an incorrect name in a complaint or other document.

"Motion" means a request made to the Board for the purposes of obtaining a ruling or order

directing or allowing some act to be done in favor of the movant. (See definition of “Movant”

below.)

"Motion for oral argument before Board" means a motion to verbally argue the law of a case before

the Board pursuant to 35 Ill. Adm. Code 101.700.

"Motion for reconsideration" means a motion filed by a party in a proceeding before the Board

requesting the Board to change its final order or final opinion and order usually based on an error of

law, change in law or new evidence. (See 35 Ill. Adm. Code 101.520.)

"Motion for summary judgment " means a request that the Board find based on the pleadings and

prior to the hearing that as a matter of law the movant is entitled to judgment in a case where there

is no genuine issue of material fact. (See 35 Ill. Adm. Code 101.516.)

"Motion to cancel hearings" means a motion requesting the Board to not hold or vacate a previously

scheduled hearing. (See 35 Ill. Adm. Code 101.510.)

"Motion to consolidate" means a motion requesting the Board to join two separate cases into one

case to be considered together.

"Motion to dismiss" means a motion requesting the Board to end a case.

"Motion to file document instanter" means a motion requesting the Board to accept a late filing at

the time filed.

"Motion to intervene" means a motion by a non-party to be joined as a party in an ongoing case.

"Motion to join necessary party" means a motion to make a person a party to a case when complete

relief cannot be given to those already parties without the joinder.

"Motion to sever" means a motion to separate an action or proceeding into two or more

independent actions or proceedings, each of which terminates in a separate, final judgment.

"Motion to waive hearing requirement" means a motion to not hold an otherwise required hearing

in a case.

“Movant” means the person who files a motion.

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BOARD PROPOSAL FOR PUBLIC COMMENT OCTOBER 3, 1996

Part 101-12

“New pollution control facility” means:

(1)

a pollution control facility initially permitted for development or construction after July 1,

1981; or

(2)

the area of expansion beyond the boundary of a currently permitted pollution control

facility

.

[415 ILCS 5/3.32(b).]

"Non-party participant" means, in an adjudicatory proceeding, a person who cannot or does not

wish to appear as a party, but who wishes to participate to the extent the Act and the Board’s

procedural rules allow.

"Notice list" means in a regulatory proceeding the list of persons who will receive all Board and

hearing officer opinions and orders. Persons on a regulatory notice list do not receive copies of all

motions and testimony. (See “Service List”) (See also, 35 Ill. Adm. Code 125.422.)

"Notice of appearance" means the act of informing the other party(s) that an attorney will be

representing a party or non-party participant in a case. (See 35 Ill. Adm. Code 101.Appendix B for

an example Notice of Appearance.)

"Notice of withdrawal of a case" means a filing that states that petitioner or complainant withdraws

its case before the Board and no longer wishes a decision from the Board. (See 35 Ill. Adm. Code

101.302(l).)

"Notice to reinstate 120-day decision deadline" means to restart the 120-day decision period after a

Negotiation Waiver has been filed. Such notice will give the Board a full 120 days in which to

make a decision. (See 35 Ill. Adm. Code 101.308.)

"Oral argument" means a formal statement of advocacy made at a Board meeting with leave of the

Board. (See 35 Ill. Adm. Code 101.700.)

"Order" means the Board’s written mandate; precept; command or direction given to the parties

upon a Board decision.

"OSFM" means Office of the State Fire Marshal.

"OSFM appeal" means an appeal of an OSFM final decision concerning eligibility and deductibility

made pursuant to Title XVI of the Act. [415 ILCS 5/57

et seq

.]

"Participant" means any person, not including the Board or its staff, who takes part in a regulatory

or other quasi-legislative proceeding before the Board. A person becomes a participant in any of

several ways, including, but not limited to, filing a comment, being added to the notice list of a

particular proceeding, or testifying at hearing. (See 35 Ill. Adm. Code 125.108.)

“Participant in a CAAPP Comment Process” means a person who participated at the Clean Air Act

Permit Program (CAAPP) permit hearing before the Agency.

"

Party" means the person by or against whom a case is brought.

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BOARD PROPOSAL FOR PUBLIC COMMENT OCTOBER 3, 1996

Part 101-13

"Party in interest" means the Agency when asked to conduct an investigation pursuant to Section 30

of the Act during an ongoing case. [415 ILCS 5/30.]

"Permit appeal" or "PA" means an adjudicatory proceeding or action brought before the Board

pursuant to Title X of the Act.

"Person " means

any individual, partnership, co-partnership, firm, company, corporation,

association, joint stock company, trust, estate, political subdivision, state agency, or any other

legal entity, or their legal representative, agent or assigns

. [415 ILCS 5/3.26.]

"Petition" means the initial filing in an adjudicatory proceeding except for in an enforcement

proceeding, including but not limited to, permit appeals, UST determinations, appeals of pollution

control facility siting decisions, variances and adjusted standards.

"Pollution control facility" means

any waste storage site, sanitary landfill, waste disposal site,

waste transfer station, waste treatment facility or waste incinerator that accepts waste from or that

serves an area that exceeds or extends over the boundaries of any local general purpose unit of

government. This includes sewers, sewage treatment plants, and any other facilities owned or

operated by sanitary districts organized under Metropolitan Water Reclamation District Act. The

following are not pollution control facilities

:

(1)

[

Blank

];

(2)

waste storage sites regulated under 40 CFR, Part 761.42

;

(3)

sites or facilities used by any person conducting a waste storage, waste treatment,

waste disposal, waste transfer or waste incineration operation, or a combination

thereof, for wastes generated by such person's own activities, when such wastes are

stored, treated, disposed of, transferred or incinerated within the site or facility

owned, controlled or operated by such person, or when such wastes are transported

within or between sites or facilities owned, controlled or operated by such person

;

(4)

sites or facilities at which the State is performing removal or remedial action pursuant

to Section 22.2 or 55.3

;

(5)

abandoned quarries used solely for the disposal of concrete, earth materials, gravel,

or aggregate debris resulting from road construction activities conducted by a unit of

government or construction activities due to the construction and installation of

underground pipes, lines, conduit or wires off of the premises of a public utility

company which are conducted by a public utility

;

(6)

sites or facilities used by any person to specifically conduct a landscape composting

operation

;

(7)

regional facilities as defined in the Central Midwest Interstate Low-Level Radioactive

Waste Compact

;

(8)

the portion of a site or facility where coal combustion wastes are stored or disposed of

in accordance with subdivision (s)(2) or (s)(3) of Section 21

;

(9)

the portion of a site or facility used for the collection, storage or processing of waste

tires as defined in Title XIV

;

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BOARD PROPOSAL FOR PUBLIC COMMENT OCTOBER 3, 1996

Part 101-14

(10)

the portion of a site or facility used for treatment of petroleum contaminated materials

by application onto or incorporation into the soil surface and any portion of that site

or facility used for storage of petroleum contaminated materials before treatment.

Only those categories of petroleum listed in paragraph (5) of subsection (a) of Section

22.18(b) are exempt under this subdivision (10);

(11)

the portion of a site or facility where used oil is collected or stored prior to shipment

to a recycling or energy recovery facility, provided that the used oil is generated by

households or commercial establishments, and the site or facility is a recycling center

or a business where oil or gasoline is sold at retail

;

(12)

the portion of a site or facility utilizing coal combustion waste for stabilization and

treatment or only waste generated on that site or facility when used in connection with

response actions pursuant to the federal Comprehensive Environmental Response,

Compensation, and Liability Act of 1980, the federal Resource Conservation and

Recovery Act of 1976, or the Illinois Environmental Protection Act or as authorized by

the Agency

.

[415 ILCS 5/3.32(a).]

"Pollution control facility siting appeal" means an appeal to the Board of a decision made by a unit

of local government filed pursuant to Section 40.1 of the Act. [415 ILCS 5/40.1.]

“Postconsumer material” means

paper, paperboard, and fibrous wastes from retail stores, office

buildings, homes and so forth, after the waste has been passed through its end usage as a consumer

item, including used corrugated boxes, old newspapers, mixed waste paper, tabulating cards, and

used cordage. Additionally, it includes all paper, paperboard, and other fibrous wastes that are

diverted or separated from the municipal solid waste stream

. (Illinois Solid Waste Management

Act, Section 3(f)(2), P.A. 87-485, effective January 1, 1992.)

"Peremptory rulemaking" means

any rulemaking which is required as a result of federal law,

federal rules and regulations, or an order of a court,...under conditions which preclude compliance

with the general rulemaking requirements of Section 5-40 of the APA and which preclude the

exercise by the

Board

as to the content of the rule it is required to adopt

. [5 ILCS 100/5-50.]

"Prehearing conference " means a meeting held prior to the hearing with the intent to maximize

understanding, reach agreements and identify issues and witnesses for hearing to better utilize the

time at the hearing. (See also 35 Ill. Adm. Code 125.404 and 125.406.)

"Proceeding" means an action conducted by the Board pursuant to authority granted under Section 5

of the Act. Board proceedings are of two types: quasi-legislative (e.g., rulemakings and inquiry

proceedings) and quasi-judicial (adjudicatory proceedings).

"Proponent" means any person, not including the Board or its staff, who submits a regulatory

proposal to the Board for the adoption, amendment, or repeal of a regulation.

"Provisional variance" means a variance recommended by the Agency pursuant to Section 35(b) of

the Act for a period of time not to exceed 90 days within one calendar year. [415 ILCS 5/35(b).]

(See 35 Ill. Adm. Code 104.308.)

"Public comment" means information submitted to the Board either by oral or written testimony or

written document that has been filed with the Clerk.

“Qualitative description” means a narrative description pertaining to attributes and characteristics.

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BOARD PROPOSAL FOR PUBLIC COMMENT OCTOBER 3, 1996

Part 101-15

“Quantitative description” means a numerically based description pertaining to attributes and

characteristics.

"RCRA variance" means a variance from a RCRA rule or a RCRA permit required pursuant to

Section 21(f) of the Act. [415 ILCS 5/21(f).]

"Record" means the Clerk’s official collection, as kept by the Clerk, of all documents and exhibits

including but not limited to pleadings, exhibits, transcripts, documents, and orders filed during the

course of a proceeding.

"Recycled paper" means paper which contains at least 50% recovered paper material. The

recovered paper material shall contain at least 30% deinked stock or postconsumer material;

beginning July 1, 1998, shall contain at least 40% deinked stock or postconsumer material;

beginning July 1, 2000, shall contain at least 45% deinked stock or postconsumer material.

"Registered agent" means a person registered with the Secretary of State for the purpose of

accepting service for any entity, or a person otherwise authorized in writing as an agent for the

purpose of accepting service for that entity in Board proceedings.

"Regulatory hearing" or "proceeding" means a hearing or proceeding held pursuant to Title VII of

the Act.

"Regulatory relief mechanism" means variance, provisional variance, adjusted standards, heated

effluent demonstrations, artificial cooling lake demonstration, sulfur dioxide demonstrations,

revocation and reopening of Clean Air Act Permit Program permits, maximum achievable control

technology determinations and culpability determinations for particulate matter less than or equal to

10 microns. (35 Ill. Adm. Code 104.)

“Relevancy or relevant” means applicability to the issue joined. That quality of evidence which

renders it properly applicable in determining the truth and falsity of the matters in issue between the

parties in a case. Relevancy is that which conduces to the proof of a pertinent hypothesis; a

pertinent hypothesis being one which, if sustained, would logically influence the issue.

"Resource Conservation and Recovery Act (RCRA)" means the Solid Waste Disposal Act, as

amended by the Resource Conservation and Recovery Act of 1976 (42 U.S.C. 6901 et seq. (1991)).

"Response" means a filing in reaction to a motion filed before the Board. (See 35 Ill. Adm. Code

101.500.)

"Rule or regulation of general applicability" means a substantive rule or regulation adopted by the

Board pursuant to Title VII of the Act, with such regulation applicable to all persons not explicitly

exempted either within the regulation or associated site-specific regulation or adjusted standard.

“Rulemaking" or “rulemaking proceeding” means a proceeding brought under Title VII of the Act

for the purpose of adoption, amendment, or repeal of a regulation.

"Sanction" means a penalty or other mechanism used by the Board to provide incentives for the

compliance with the Board’s procedural rules (or rules and regulations). (See also 35 Ill. Adm.

Code 101.Subpart H.)

"SDWA" means the federal Safe Drinking Water Act (42 U.S.C. 300f et seq.).

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BOARD PROPOSAL FOR PUBLIC COMMENT OCTOBER 3, 1996

Part 101-16

"Senior Attorney" means the Board employee as designated by the Chairman who reports to the

Chairman.

"Service" means delivery of documents upon a person(s). (See 35 Ill. Adm. Code 101.304.)

"Service list" means in a regulatory proceeding the list of persons designated by the hearing officer

upon whom participants must serve motions, pre-filed questions and pre-filed testimony. Persons

who would like to receive copies of Board and hearing officer opinions and orders must also be on

the “Notice List”. (See “Notice List.”) (See also Ill. Adm. Code 125.422.)

"Set for hearing order" means an order of the Board or its designee issued in an adjudicatory

proceeding that authorizes or directs that a hearing be held.

"Severance" means the separation of an action or proceeding into two or more independent actions

or proceedings, each of which terminates in a separate, final judgment.

"Site-specific rule (or regulation)" means a proposed or adopted regulation, not of general

applicability, that applies only to a specific facility, geographic site, or activity. (See 35 Ill. Adm.

Code 125.208.)

"State enforcement proceeding” or “action" means an enforcement action that is not a citizen’s

enforcement action that is brought pursuant to Section 31(a) of the Act. [415 ILCS 5/31(a).]

"Stay" means a temporary suspension of the regular progress of a proceeding pursuant to an order

of the Board or by operation of the Act. (See 35 Ill. Adm. Code 101.514.)

"Subpoena" means a command to appear at a certain time and place to give testimony upon a

certain matter.

“Subpoena duces tecum” means a document which compels the production of specific documents

and other items, material and relevant to the facts in issue in an adjudicatory proceeding, which

documents and items are in the control of the person or body served with process.

"Substantive amendment to an initial filing" means an alteration of the initial filing beyond

corrections of misnomers or other similar minor or typographical errors.

"Summary judgment" means disposition of the case without hearing when there is no dispute as to

the material facts and the only question that remains is a question of law. (See 35 Ill. Adm. Code

101.516.)

"Third party" means a person who is a party to a case or proceeding but was not one of the

principal parties in the initial case or proceeding. (See 35 Ill. Adm. Code 105.200.)

"Trade secret" means

the whole or any portion or phase of any scientific or technical information,

design, process (including a manufacturing process), procedure, formula or improvement, or

business plan which is secret in that it has not been published or disseminated or otherwise become

a matter of general public knowledge, and which has competitive value. A trade secret is presumed

to be secret when the owner thereof takes reasonable measure to prevent it from becoming available

to persons other than those selected by the owner to have access thereto for limited purposes

. [415

ILCS 5/3.48.]

"Trade secret petition" means a petition filed pursuant to the Board’s procedural rules regarding

trade secret information found at 35 Ill. Adm. Code 130.

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BOARD PROPOSAL FOR PUBLIC COMMENT OCTOBER 3, 1996

Part 101-17

"Transcript" means the official copy of the hearing record.

"Undue delay" means a delay which is unwarranted, unjustified, improper, or is more delay than

necessary.

"USEPA" means the United States Environmental Protection Agency.

"UST Act" means Title XVI of the Act. [415 ILCS 5/57

et seq.

]

"UST appeal/IEPA" means an appeal of an Agency final decision made pursuant to the UST Act.

"Variance" means a temporary exemption from any specified

regulation, requirement or order of

the Board

granted to a petitioner by the Board pursuant to Title IX of the Act

upon presentation of

adequate proof that compliance with the rule or regulation, requirement or order of the board

would impose an arbitrary or unreasonable hardship

. [415 ILCS 5/35(a).]

"Waiver" means the intentional relinquishing of a known right, usually with respect to hearing

before the Board or entry of a Board decision within the decision period. (See also 35 Ill. Adm.

Code 101.308.)

SUBPART C: COMPUTATION OF TIME, FILING, SERVICE

OF DOCUMENTS, NOTICE OF WITHDRAWAL OF CASE, AND STATUTORY DECISION

DEADLINES

Section 101.300 Computation of Time

a)

Computation of Time. Computation of any period of time prescribed in the Act or

these rules shall begin with the first calendar day following the day on which the act,

event or development occurs and shall run until the end of the last day, or the next

business day if the last day is a Saturday, Sunday or national or state legal holiday.

b)

Time of Filing. Documents shall be considered filed when they are filed in

conformance with the requirements found in Section 101.302 of this Part and any

other filing requirements specifically set out in the other Parts of these rules.

 

1)

If filed in person, by messenger service or mail delivery service other than

U.S. Mail documents are considered filed when they are received in the

Office of the Clerk.

2)

For purposes of filing deadlines, documents filed by U.S. Mail shall be

deemed filed when they are postmarked, provided all filing requirements are

met as set forth in Section 101.302 of this Part. Proof of mailing shall be

made pursuant to subsection (c).

3)

Documents received in the Office of the Clerk after 4:30 p.m. shall be

marked as filed the following business day. The Clerk shall record the

appropriate filing date on all filed documents.

4)

For purposes of Board decision deadlines time does not begin until the date on

which the initial filing is date-stamped by the Clerk.

---

Part 101-18

c)

Time of Service. In the case of personal service, service is deemed complete on the

date personal delivery was effectuated. In the case of facsimile transmission, service

is deemed complete on the date of a complete and proper transmittal (facsimile filings

are only allowed in accordance with Section 101.302(d).) In the case of service by

registered or certified mail, or by messenger service, service is deemed complete on

the date specified on the registered or certified mail receipt or the messenger service

receipt. In the case of service by US Mail, service is presumed complete four days

after mailing. Such presumption can be rebutted by proper proof.

d)

Date of Board Decision.

1)

For purposes of statutory decision deadline cases, the date of the Board

decision is the date of the Board meeting where a final opinion and order of

the Board was made by the vote of at least four Board members.

2)

For purposes of appeal, the date of the Board decision is the date of service of

the final opinion and order by the Board upon the appealing party. Or, in the

event of a timely filed Motion for Reconsideration was filed pursuant to

Section 101.520 of this Part, the date the Board order ruling upon the motion

is served by the Board upon the appealing party.

101.302 Filing of Documents and Withdrawal of Cases

a)

This section contains the Board’s general filing requirements. However, the more

specific Part for a case type may contain additional requirements. The Clerk will

refuse for filing any document which does not comply with the requirements below.

b)

All documents filed with the Board must be filed with the Office of the Clerk of the

Board at:

100 West Randolph Street

James R. Thompson Center, Suite 11-500

Chicago, Illinois 60601-3218

c)

Documents may be filed by U.S. Mail or other mail delivery service, in person or by

messenger.

d)

Filing by electronic transmission or facsimile will only be allowed in special or

emergency circumstances and must receive prior approval of the Senior Attorney or

hearing officer assigned to the case. In the event such filing is approved, the original

and appropriate number of copies as otherwise required by this section must be

postmarked or delivered to the Board within 24 hours of the electronic or facsimile

transmission.

e)

All initial filings shall be set forth on a Board Form, or in a reasonably similar format

which contains all information required on the relevant form. Board Forms are

electronically available on the Board’s Home Page or may be obtained at the Board’s

Chicago or Springfield offices. Additionally copies of the Board forms appear in

Appendix G of this Part. Where format requirements exist in these rules, the Clerk

shall not accept for filing documents which do not conform.

f)

The following initial filings require filing fees and will only be considered filed when

accompanied by the appropriate fee, which may be paid in the form of government

---

Part 101-19

voucher, money order, or check made payable to the Illinois Pollution Control Board,

but which may not be paid in cash:

1)

Petition for Site-Specific Regulation, $75;

2)

Petition for Variance, $75;

3)

Petition for Review of Agency Permit Decision, UST Decision, or any other

Appeal filed pursuant to Section 40 of the Act, $75;

4)

Petition to Review Pollution Control Facility Siting Decisions, pursuant to

Section 40.1 of the Act [415 ILCS 5/40.1], $75; and

5)

Petition for Adjusted Standard, pursuant to Section 28.1 of the Act [415 ILCS

5/28.1], $75

[415 ILCS 5/7.1.]

g)

All documents filed shall be served in accordance with Subpart C of this Part.

h)

All documents filed by parties with the Board must be typed in at least 12 pitch font,

should contain the relevant case caption and number and must be submitted on 8 1/2 x

11 inch recycled paper as defined in 35 Ill. Adm. Code 101.Subpart B.

i)

Unless otherwise provided in these rules or by the Board, all forms and documents

must be filed with a signed original and 11 duplicate copies (12 total), except that

documents specifically directed to the assigned hearing officer, such as discovery

motions, interrogatories and answers, subpoenas, etc., may be filed with a signed

original and four copies (5 total), or as set forth by the hearing officer.

j)

Non-Conforming Exhibits. When possible, exhibits must be reduced to conform to 8

1/2 X 11 inch recycled paper. However, one non-conforming original copy may be

filed with the Clerk’s Office. Upon closure of the case, the non-conforming copy may

be returned to the person filing it in accordance with 2 Ill. Adm. Code 2175.300.

k)

Briefs/Page Limitation. Without prior approval of the Board or hearing officer, no

motion, brief in support of motion, or brief may exceed 50 pages and no brief in

response to motion or response brief may exceed 25 pages. These limits do not

include appendices containing relevant material.

Section 101.304 Service of Documents

a)

Service Requirements. This section contains the Board’s general service requirements.

However, the more specific Part for a case type may contain additional requirements.

b)

Duty to Serve. Parties in Board adjudicatory proceedings are responsible for service

of all documents filed with the Office of the Clerk. Proof of service of initial filings

may be filed with the Board upon completion of service.

c)

Method of Service. Service may be effectuated by U.S. Mail or other mail delivery

service, in person, by messenger or by facsimile, except for service of enforcement

complaints and administrative citations which shall be made personally, by registered

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BOARD PROPOSAL FOR PUBLIC COMMENT OCTOBER 3, 1996

Part 101-20

or certified mail, or by messenger service. Proof of service of enforcement

complaints and administrative citations must be filed with the Board upon completion

of service.

d)

Affidavit or Certificate of Service. A case is subject to dismissal, and parties are

subject to sanctions in accordance with Section 101.800 of this Part, if service is not

timely made. Proof of proper service is the responsibility of the party filing and

serving the document. An Affidavit of Service or Certificate of Service must

accompany all filings of all parties. A sample form of the Affidavit of Service and

Certificate of Service is available at the Board’s Offices (the locations of the Board’s

Offices are listed at 2 Ill. Adm. Code 2175.115) and may be obtained electronically at

the Board’s Home Page.

e)

Service of amicus curie briefs. Any person who files an amicus curie brief with the

Board in any proceeding shall serve copies of that brief to all parties in accordance

with this Section.

f)

Service of Comments of Non-Party Participants in an Adjudicatory Proceeding. Non-

Party Participants shall not be required to serve their comments upon the parties to the

proceeding. The Office of the Clerk shall serve all comments filed by Non-Party

Participants upon all parties to the proceeding and the hearing officer. The Board will

consider such comments as time and the Act allow.

g)

Service on State Agencies shall be at the addresses listed below unless a specific

person has an appearance on file with the Board.

1)

Service on the Illinois Environmental Protection Agency (Agency). The

Agency shall be served at the following address:

Division of Legal Counsel

Illinois Environmental Protection Agency

2200 Churchill Road

P.O. Box 19276

Springfield, IL 62794-9276

2)

Service on Office of State Fire Marshall (OSFM). The OSFM shall be served

at:

Division of Petroleum and Chemical Safety

Office of the State Fire Marshall

1035 Stevenson Dr.

Springfield, IL 62703

3)

Service on the Illinois Attorney General. The Office of the Attorney General

shall served at:

Division Chief of Environmental Enforcement

Office of the Attorney General

James R. Thompson Center

100 West Randolph 11th Floor

Chicago, IL 60601

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BOARD PROPOSAL FOR PUBLIC COMMENT OCTOBER 3, 1996

Part 101-21

4)

Service on the Illinois Department of Natural Resources (DNR) shall be

served at:

Office of Legal Services

Illinois Department of Natural Resources

524 S. Second

Springfield, IL 62701-1787

5)

Service on the Illinois Department of Transportation (IDOT). IDOT shall be

at:

Office of Chief Counsel

DOT Administration Building

Room 300

Springfield, IL 62764

6)

Service of Region Five of the United States Environmental Protection Agency

(USEPA). USEPA Region Five shall be served at:

USEPA, Region V

230 South Dearborn Street

Chicago, Illinois 60604

Section 101.306 Incorporation Of Documents by Reference

a)

Upon the separate written request of any person or on its own initiative, the Board or

hearing officer may incorporate materials from the record of another Board docket into

any proceeding. The person seeking incorporation shall file with the Board four

copies of the material to be incorporated. The person seeking incorporation shall

demonstrate to the Board or the hearing officer that the material to be incorporated is

relevant to the proceeding. Notice of the request shall be given to all identified

participants or parties by the person seeking incorporation.

b)

The Board will give the incorporated matter the appropriate weight in light of the

following factors: the standard of evidence under which the material was previously

presented to the Board; the present purpose for incorporating the material; and the past

and current opportunity for cross-examination of the matters asserted within the

incorporated material.

Section 101.308 Statutory Decision Deadlines and Waiver of Deadlines

a)

Petitions in the following proceedings have a statutory right to a decision of the Board

within 120 days of a complete filing: Variances (Section 38 of the Act), Permit

Appeals and UST Fund determinations (Section 40 of the Act), Pollution Control

Facility Siting Review (Section 40.1 of the Act). [415 ILCS 5/38, 40, and 40.1.]

b)

Where the petitioner imposes the 120-day decision deadline the Board will proceed

expeditiously to establish all hearing and filing requirements. Failure to follow Board

requirements on such deadlines will subject the party to sanctions pursuant to Subpart

H of this Part. This section will be strictly construed where there is a 120-day

decision deadline unless the Board receives a waiver as set out below.

---

Part 101-22

c)

All waivers of a deadline for Board action, as specified in Sections 38, 40, 40.1 and

41 of the Act, must be filed as a separate document. [415 ILCS 5/38, 40, 40.1 and

41.] Waivers must be clearly titled and state which type of waiver it is, identify the

proceeding by name and docket number, and be signed by the party or by his

authorized representative or attorney.

1)

Open Waiver. Waives the decision deadline completely and unequivocally.

2)

Negotiation Waiver. Waives the decision deadline until such time as the

petitioner elects to reinstate the 120-day decision period by filing a notice to

reinstate. Upon proper filing of the notice, the 120-day decision deadline is

reinstated by the Board. In accordance with Section 101.300(b)(4), the 120

days begins to run as of the date the notice is filed with the Board.

3)

Time Certain Waiver. Waives the decision deadline until a time certain. The

time certain may be expressed in length of days (e.g. 90 days) or to a specific

calendar date. If expressed in length of days, day one shall be the first day

after the date upon which the current time clock expires.

Section 101.310 Notice of Withdrawal of Case

Petitioners or Complainants may withdraw their case before the Board by filing a written notice of

withdrawal. This notice must be served in accordance with Section 101.304 of this Part. A sample

withdrawal form is available at the Board’s Chicago or Springfield offices (the locations of Board

Offices are listed at 2 Ill. Adm. Code 2175.115) and may be obtained electronically on the Board’s

Home Page. A copy of the Notice to Withdraw appears in Appendix F of this part. Upon proper filing

and service of the notice, the Board will consider the case withdrawn and the docket closed.

SUBPART D: PARTIES, JOINDER AND CONSOLIDATION

Section 101.400 Appearances, Withdrawals, And Substitutions of Attorneys In Adjudicatory

Cases

a)

Appearances. A person who is a party in a Board adjudicatory proceeding may appear

as follows:

1)

Individuals may appear on their own behalf or through an attorney-at-law

licensed and registered to practice law. [705 ILCS 205/1.]

2)

Corporations, associations, and units of government may appear through an

attorney-at-law licensed and registered to practice law. [705 ILCS 220/1 and

705 ILCS 205/1.]

3)

Attorneys who are licensed to practice in another state than Illinois and who

are not licensed and registered to practice in the State of Illinois may request

to appear pro hac vice on a particular matter on motion filed with the Board.

4)

Any attorney appearing in a representative capacity shall file a separate

written notice of appearance with the Clerk, together with proof of service

and notice of filing of the appearance on all parties in the proceeding. Law

firms, the Agency, and the Attorney General’s Office when appearing before

the Board shall designate a lead attorney for purposes of phone and mail

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BOARD PROPOSAL FOR PUBLIC COMMENT OCTOBER 3, 1996

Part 101-23

contact pertaining to case. A sample appearance form is available at the

Board’s offices (the location of the Boards Offices are listed at 2 Ill. Adm.

Code 2175.115), on the Board’s Home Page, and at Appendix A of this Part.

5)

Any person appearing before the Board may appear in a special limited

capacity to contest jurisdiction.

b)

Withdrawals. An attorney who has appeared in a representative capacity and who

wishes to withdraw from that representation shall file a notice of withdrawal with the

Clerk, together with proof of service and notice of filing on all parties or their

representatives. A sample notice of withdrawal form is available at the Board’s

offices (the locations of the Board’s Offices are listed at 2 Ill. Adm. Code 2175.115),

Appendix C of this Part, and on the Board’s Home Page.

c)

Substitution. Any attorney who substitutes for an attorney of record shall file a written

appearance pursuant to subsection (a) above. That appearance shall identify the

attorney for whom the substitution is made. However, no attorney shall be considered

withdrawn from a case until a formal withdrawal is filed in accordance with subsection

(b) above.

d)

Any person may appear on behalf of themselves or others in a rulemaking proceeding

in accordance with 35 Ill. Adm. Code 125.100(b).

Section 101.402 Intervention or Joinder of Parties

a)

Intervention or joinder may be allowed in specific cases. Where the person seeking to

be joined otherwise constitutes a proper party under the Act and the Board’s

regulations the Board may allow them to be joined. Intervention is only allowed in

enforcement actions filed under Title VIII of the Act.

b)

Where the Act and Board rules are silent as to party status the Board may look to the

following common law principles to decide if the person may be joined:

1)

Material prejudice may result to such person absent joinder;

2)

The person is so situated that the person may be adversely affected

by a final order of the Board;

3)

A complete determination of a controversy cannot be made without

joinder of the person; or

4)

It may be necessary to impose conditions upon the person if the relief

requested is to be granted.

c)

A joined party or intervenor shall have the same rights as any co-party, except that the

original petitioner retains sole control of the decision deadline.

Section 101.404 Agency as a Party in Interest

Pursuant to Section 30 of the Act, the Board may request that the Agency investigate any alleged

violation of the Act, the regulations or any permit granted by the Agency or any term or condition of

any such permit and any such other investigations as the Board may deem advisable. Upon such

request, the Board may designate the Agency as a party in interest in any ongoing proceeding in that

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matter. The designation of the Agency as a party in interest does not require the Agency to take a

position on the merits of the case.

Section 101.406 Consolidation of Claims

The Board, upon the motion of any party or upon its own motion, may consolidate two or more

proceedings for the purpose of hearing or decision or both. The Board will consolidate the proceedings

if consolidation is in the interest of convenient, expeditious, and complete determination of claims, and

where material prejudice to any party would not follow as a consequence of consolidation. The Board

will not consolidate cases of different types where the burden of proof is different for the cases.

Section 101.408 Severance of Claims

Upon motion of any party or on the Board's own motion, in the interest of convenient, expeditious, and

complete determination of claims, and where material prejudice to any party would not follow as a

consequence of severance, the Board may sever claims involving any number of parties.

SUBPART E: MOTIONS

Section 101.500 Filing of Motions and Responses

a)

The Board may entertain any motion the parties wish to file which is cognizable in the

Act, these rules, and the Illinois Code of Civil Procedure.

b)

All motions must be in writing, unless made orally on the record during a hearing, and

shall state whether directed to the Board or to the hearing officer. Motions which

should be directed to the hearing officer are set out in Section 101.502 of this Part.

All motions should be filed and served in conformance with Subpart C of this Part.

c)

Motions may be filed at anytime unless otherwise specifically provided.

d)

Within 7 days after service of a motion, a party may file a response to the motion. If

no response is filed, such party shall be deemed to have waived objection to the

granting of the motion, but such waiver of objection does not bind the Board or the

hearing officer in its disposition of the motion. Unless undue delay or material

prejudice would result, neither the Board nor the hearing officer will grant any motion

before expiration of the 7 day response period except in deadline driven cases where

no waiver has been filed. Parties may request that the Board grant more time to

respond by filing a motion for extension of time.

e)

The moving person shall not have the right to reply, except as permitted by the Board

or the hearing officer to prevent material prejudice. However any motion for leave to

file a reply shall be filed with the Board within 7 days from the service of the

response.

Section 101.502 Motions Directed to Hearing Officer

a)

The hearing officer has the authority to rule on all motions which are not dispositive of

the case. Examples of motions which hearing officers may not rule upon are motions

to dismiss, motions to decide a proceeding on the merits, motions to strike any claim

or defense for insufficiency or want of proof, motions claiming lack of jurisdiction,

motions for consolidation, motions for summary judgment, and motions for

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BOARD PROPOSAL FOR PUBLIC COMMENT OCTOBER 3, 1996

Part 101-25

reconsideration. The duties and authorities of the hearing officer are further set out in

Section 101.610 of this Part.

b)

An objection to a hearing officer ruling or any oral motion to the Board made at

hearing will be deemed waived if not raised in written post-hearing submissions to the

Board.

c)

Unless otherwise ordered by the Board to prevent material prejudice, neither the filing

of a motion, the certification of a question to the Board, nor any appeal to the Board of

a hearing officer order shall stay the proceeding or extend the time for the

performance of any act. All hearing officer orders will remain in effect during the

pendency of any appeal to the Board.

Section 101.504 Contents Of Motions And Responses

All motions and responses must clearly state the grounds upon which the motion is made and shall

contain a concise statement of the position or relief sought. Facts asserted which are not of record in

the proceeding must be supported by oath or affidavit. A brief or memorandum in support of the

motion or response may be included. Section 101.506 Motions Attacking Sufficiency of Petition or

Complaint

All motions to strike, dismiss, or challenge the sufficiency of any pleading filed with the Board must be

filed within 21 days after the service of the challenged document, unless the Board determines that

material prejudice would result.

Section 101.508 Motions to Board Preliminary to Hearing

Motions which a party desires the Board to rule on before hearing should be filed 21 days prior to the

regularly scheduled Board meeting before the noticed hearing date. Any motion filed after the above

prescribed time shall be considered by the Board as time permits.

Section 101.510 Motion 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 10 days, or 5 days if the motion is agreed to by all parties, before the

scheduled hearing date. Any motion for cancellation filed less than 10 days, or 5 days

if the motion is agreed to by all parties, 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 canceled.

b)

Contents. All motions for cancellation must 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 basis 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.

c)

A motion for cancellation of a hearing must be accompanied either by a waiver of the

decision deadline pursuant to Section 101.308 of this Part or a proposed date for

rescheduling the hearing.

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BOARD PROPOSAL FOR PUBLIC COMMENT OCTOBER 3, 1996

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1)

The hearing officer may grant a motion for cancellation of hearing that is not

accompanied by a waiver, only where a waiver of the statutory decision

deadline by the petitioner has previously been submitted, in writing, to the

hearing officer and the Clerk, or, where a waiver of the decision deadline is

not applicable, such as in a non-deadline case.

2)

The waiver of the decision deadline must allow enough time to reschedule

hearing, provide the statutorally required notice of the hearing, and provide

sufficient time for Board decision making.

3)

If the hearing officer grants a motion for cancellation, a revised schedule for

completion of the record must be filed with the Clerk and served on all parties

in accordance with Subpart C of this Part.

e)

The actual cost for newspaper re-notice of a canceled hearing may be assessed against

the moving party by the Board in accordance with 2 Ill. Adm. Code 2175.204.

f)

If the motion for cancellation of hearing is filed less than two business days before the

scheduled hearing, the cancellation fee for the court reporter may be assessed against

the moving party by the Board.

Section 101.512 Motion for Expedited Review

a)

Motions for expedited review shall be directed to the Board. All motions for

expedited review shall contain a complete statement of the facts and or reasons for the

request and must be accompanied by an oath or affirmation attesting that the reasons

and facts cited are true.

b)

In acting on a motion for expedited review the Board at a minimum will consider all

statutory requirements and whether material prejudice will result from the motion

being granted or denied.

c)

The Board will grant a motion for expedited review consistent with available

resources, decision deadlines, and Board case load.

Section 101.514 Motions to Stay Proceedings

a)

Motions to stay a proceeding must be directed to the Board. A status report detailing

the progress of the proceeding and giving information about why the stay is needed

must be attached to the motion. (See also Section 101.308 of this Part.)

b)

If the motion to stay is granted, at the close of the stay, the parties must file a status

report in accordance with Subpart C. Additional requests for stay of the proceedings

shall be directed to the hearing officer and must be accompanied by waiver of any

decision deadline.

Section 101.516 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 30 days prior to

the regularly scheduled Board meeting before the noticed hearing date, a party may

move the Board for summary judgment for all or any part of the relief sought. Any

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BOARD PROPOSAL FOR PUBLIC COMMENT OCTOBER 3, 1996

Part 101-27

response to a motion for summary judgment must be filed within 14 days from service

of the motion for summary judgment.

b)

Board Determination. 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 the Board will enter summary

judgment.

c)

Any party wishing to cancel hearing pending decision on a motion for summary

judgment shall file a motion to cancel hearing pursuant to Section 101.510 of this Part.

d)

Any motion for summary judgment not ruled on prior to the commencement of the

hearing is deemed denied.

Section 101.518 Motions for Interlocutory Appeal from Hearing Officer Orders

Interlocutory appeals may be taken to the Board from a ruling of the hearing officer. The Board may

consider an interlocutory appeal upon the filing of a written motion.

Section 101.520 Motions for Reconsideration

a)

Any motion for reconsideration or modification of a final Board opinion and order

must be filed within 35 days of the receipt of the opinion and order. (See Section

101.1002 of this Part.)

b)

Any response to a motion for reconsideration or modification must be filed within 14

days from the filing of the motion.

c)

A timely-filed motion for reconsideration or modification stays the effect of the final

order until final disposition of the motion in accordance with subsection

101.300(d)(2).

Section 101.522 Motions for Extension of Time

The Board or hearing officer, for good cause shown on a motion after notice to the opposite party, may

extend the time for filing any document or doing any act which is required by these rules to be done

within a limited period, either before or after the expiration of time.

SUBPART F: HEARINGS, EVIDENCE, AND DISCOVERY

Section 101.600 Hearings Overview

All hearings are open to the public and are held in compliance with the Americans with Disabilities Act.

The hearings are generally held in the county where the source or facility is located unless otherwise

ordered by the hearing officer. All hearings are subject to cancellation without notice. Interested

persons may contact the Clerk’s office or hearing officer assigned for information about the hearing.

Parties, non-party participants, and any members of the public shall at all times conduct themselves

with the same degree of dignity and respect that they would have before a court.

Section 101.602 Notice of Board Hearings

The Clerk of the Board shall provide notice of all hearings, except for administrative citation hearings,

in a newspaper of general circulation in the county where the facility, or pollution source is located, or

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BOARD PROPOSAL FOR PUBLIC COMMENT OCTOBER 3, 1996

Part 101-28

where the activity in question occurred. Notice shall be published at least 21 days in advance of

hearing. However, if the proceeding involves federal rules which the State has been given delegated

authority to administer, the notice shall be published at least 30 days in advance of hearing.

Section 101.604 Formal Board Transcript

All Board hearings shall be transcribed by a certified court reporter in accordance with Section 32 of the

Act. Any party or witness may file a motion with the hearing officer to correct the transcript within 14

days after receipt of the transcript in the Board offices. Failure of any party or witness to timely file a

motion to correct the transcript constitutes waiver of right to correct, unless material prejudice results.

Section 101.606 Informal Recordings of the Proceedings

Informal recording of Board proceedings is allowed as provided for in this Section. The hearing officer

may prohibit audio or video recording at hearing if a witness refuses to testify on the grounds that the

witness may not be compelled to testify if any portion of the testimony is to be broadcast or televised.

If the hearing officer determines that recording is disruptive or detrimental to proper development of the

record, he may limit or prohibit audio and/or video recording

Section 101.608 Default

a)

Failure of a party to appear at the hearing, or failure to proceed as ordered by the

Board or hearing officer, shall constitute default.

b)

If a party fails to appear at hearing, the opposing party must prove their prima face

case in order to prevail on the merits.

Section 101.610 Duties and Authority of Hearing Officer

The hearing officer shall have the duty to manage cases assigned, set and go to hearing, to conduct a

fair hearing, to take all necessary action to avoid delay, to maintain order, and to ensure development

of a clear, complete, and concise record for timely transmission to the Board. He shall have all powers

necessary to these ends, including (but not limited to) the authority to:

a)

Require parties proceed to hearing and establish a schedule for, and notice and

distribution of, any prior submission of testimony and written exhibits;

c)

Administer oaths and affirmations;

d)

Allow for the examination of or examine witnesses to insure a clear and complete

record;

e)

Regulate the course of the hearing; including but not limited to controlling the order of

proceedings;

f)

Establish reasonable limits on the duration of the testimony and questioning of any

witness and limit repetitious or cumulative testimony and questioning;

g)

Determine that a witness is adverse or unwilling pursuant to Section 101.624 of this

Part;

h)

Issue an order compelling the answering of interrogatories or other discovery requests;

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BOARD PROPOSAL FOR PUBLIC COMMENT OCTOBER 3, 1996

Part 101-29

i)

Order the production of evidence pursuant to Sections 101.614 of this Part;

j)

Order the filing of any required record or recommendation in a manner which provides

for a timely review and development of issues prior to the hearing and consistent with

any statutory decision deadline;

k)

Initiate, schedule and conduct a pre-hearing conference;

l)

Order a briefing and comment schedule and exclude late-filed briefs and comments

from inclusion in the record for decision;

m)

Rule upon objections and evidentiary questions;

n)

May order discovery pursuant to Sections 101.614 and 101.616 of this Part;

o)

May rule on any motion directed to the hearing officer or deferred to the hearing

officer by the Board in accordance with Section 101.502 of this Part;

p)

Assist the Board in its deliberations; and,

q)

Manage cases and set status report schedules.

Section 101.612 Schedule for Completion of the Record

a)

The hearing officer may create a schedule for completion of the record. The schedule

may provide dates and deadlines for pre-hearing conferences, completion of discovery,

hearing and post-hearing submissions (including public comments). The schedule

must provide for a completed record at least 30 days before the decision date, unless

the hearing officer orders otherwise to prevent material prejudice. The schedule must

be in the form of a hearing officer order and must be filed with the Clerk and served

on all parties.

b)

The hearing officer may rule upon any motion to modify the schedule for completion

of the record. The hearing office may grant such motion to the extent that the revised

schedule continues to provide for a completed record at least 30 days before the

decision date or to prevent material prejudice. If the hearing officer grants a motion

to revise the schedule, the revised schedule must be filed with the Clerk and served on

all parties.

Section 101.614 Production Of Information

The hearing officer may at any time on his or her own motion, or on motion of any party, or at the

direction of the Board, order the production of information which is relevant to the matter under

consideration. The hearing officer will deny, limit or condition the production of information when

necessary to prevent undue delay, undue expense, harassment, or to protect materials from disclosure

consistent with the provisions of Sections 7 and 7.1 of the Act and 35 Ill. Adm. Code 101 through 130.

Section 101.616 Discovery

The assigned hearing officer will set all time deadlines for discovery not already provided for in this

Subpart. Time deadlines will be consistent with Board deadlines. Discovery deadlines provided for in

the Code of Civil Procedure do not apply. [735 ILCS 5/1-101

et seq

.] All discovery disputes will be

handled by the assigned hearing officer.

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BOARD PROPOSAL FOR PUBLIC COMMENT OCTOBER 3, 1996

Part 101-30

a)

Scope of Discovery. All relevant information and information calculated to lead to

relevant information is discoverable, unless privileged or is found to be a trade secret

in accordance with 35 Ill. Adm. Code 130.

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 has the authority to order

discovery or to deny requests for discovery.

c)

Time for Discovery. All discovery must be completed at least ten days prior to the

scheduled hearing in the case unless the hearing officer orders otherwise.

d)

Protective Orders. The hearing officer may, upon the hearing officer's own initiative,

or on the motion of any party or witness, issue protective orders denying, limiting,

conditioning or regulating discovery to prevent unreasonable expense, or harassment,

and to expedite resolution of the proceeding. These protective orders shall be made in

accordance with Section 101.614 of this Part.

e)

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. Any appeals of rulings by the hearing officer regarding discovery must

be in writing and filed with the Board prior to hearing.

f)

Failure to Comply. Failure to comply with any order regarding discovery subjects the

offending persons to sanctions pursuant to Subpart H of this Part.

g)

Bad Faith. 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 H of this

Part.

h)

Duty to Supplement Discovery A party must amend any prior responses to

interrogatories, requests for production, or requests for admission if the party learns

that the response is in some material respect incomplete or incorrect, and the

additional or corrected information has not otherwise been made known to the other

parties during the discovery process or in writing.

Section 101.618 Admissions

a)

General. All requests to admit must be served upon a party no later than 35 days

before hearing. Copies of such requests should be served upon the Board and the

hearing officer. All answers or objections to requests to admit shall be served upon

the party requesting the admission, the Board, and the hearing officer within 20 days

of the service of the request.

b)

In accordance with Sections 101.522 and 101.610 of this Part, the hearing officer may

extend the time for filing any request, answer, or objection either before or after the

expiration of time.

c)

Any party serving a request to admit in accordance with subsection (d) or (e) below

upon a

pro se

party shall include the following language in the first paragraph of the

request. “Failure to respond to the following requests to admit within 20 days may

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BOARD PROPOSAL FOR PUBLIC COMMENT OCTOBER 3, 1996

Part 101-31

have severe consequences. Failure to respond to the following requests will result in

all the facts requested being deemed admitted as true for this case. If you have any

questions about this procedure, you should contact the hearing officer assigned to this

case or an attorney.”

d)

Request for Admission of Fact. A party may serve on any other party, a written

request for the admission by the latter of the truth of any specified relevant fact set

forth in the request.

e)

Request for Admission of Genuineness of Document. A party may serve on any other

party, a written request for admission of the genuineness of any relevant documents

described in the request. Copies of the document must be served with the request

unless copies have already been furnished.

f)

The Board will not consider admissions of conclusions of law. The party requesting

the admission may request the opposite party to concede to the admission of

uncontroverted facts but the request should not be an attempt to have the opposite

party concede a conclusion of law.

g)

Admission in the absence of denial. Each of the matters of fact and the genuineness of

each document of which admission is requested is admitted unless, within 20 days

after service thereof, the party to whom the request is directed serves upon the party

requesting the admission either a sworn statement denying specifically the matters of

which admission is requested or setting forth in detail the reasons why he cannot

truthfully admit or deny those matters or 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. If written objections to a part of the request

are made, the remainder of the request must be answered within the period designated

in the request. A denial must fairly meet the substance of the requested admission.

h)

Partial denial or qualification. If good faith requires that a party deny only a part, of a

matter of which an admission is requested, or if a part requires qualification, the party

shall specify so much of it as is not true and deny only the remainder.

i)

Objection. Any objection to a request or to any answer will be heard by the hearing

officer upon prompt notice and motion of the party making the request.

j)

Effect of Admission. Any admission made by a party pursuant to a request under this

section is for the purpose of the pending action only. It does not constitute an

admission by him for any other purpose and may not be used against him in any other

proceeding.

k)

Expenses of Refusal to Admit. If a party, after being served with a request to admit

the genuineness of any document or the truth of any matters of fact, fails to admit the

truth of any of the matters or the genuineness of any documents and serves a sworn

denial thereof, and if the party requesting the admissions thereafter proves the

genuineness of the document or the truth of the matter of fact, the party so moving

may apply to the Board for an order under Subpart H of this Part.

Section 101.620 Interrogatories

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BOARD PROPOSAL FOR PUBLIC COMMENT OCTOBER 3, 1996

Part 101-32

a)

A party may serve on any other party, no later than 35 days before hearing, written

interrogatories. Unless otherwise ordered by the hearing officer. Copies must be

served upon the Clerk of the Board and the hearing officer.

b)

Within 20 days of service thereof, the party to whom the interrogatory is directed shall

serve the answers and objections, if any, upon the party submitting the interrogatories,

the Clerk of the Board, and the hearing officer. Each interrogatory shall be answered

separately and fully in writing under oath, unless it is objected to. Answers must be

signed by the person making them and objections must be signed by the attorney

making them.

c)

Grounds for an objection to an interrogatory must be stated with specificity. Any

ground that is not stated in a timely objection is waived.

Section 101.622 Subpoenas

a)

Upon request by any party to a contested case, the Clerk shall issue subpoenas for the

attendance of witnesses at a hearing or deposition. Subpoena forms are available at

the Board's Chicago office. The person requesting the subpoena is responsible for

completing the subpoena and serving it upon the witness.

b)

Service of the subpoena must be completed 10 days before the date of the required

appearance. A copy of the subpoena shall be filed with the Clerk after service upon

the witness and served upon the hearing officer. Failure to serve both the Clerk and

the hearing officer will render the subpoena null and void. Service shall be in

accordance with Subpart C of this Part.

c)

Subpoenas may include a command to produce books, papers, documents, or other

tangible things designated therein and relevant to the matter under consideration.

d)

The hearing officer, upon motion made promptly and in any event at or before the

time specified in the subpoena for compliance, may quash or modify the subpoena if it

is unreasonable, or irrelevant. The hearing officer will rule upon motions to quash or

modify material requested in the subpoena pursuant to subsection (c) above in

accordance with the standards articulated in Section 101.614 of this Part.

e)

If the witness is a non-resident of the state, the witness may be eligible for reasonable

expenses from the party requesting the subpoena as provided in Section 47 of the Fees

and Salaries Act. [55 ILCS 45/47].

f)

Each witness subpoenaed by a party under this Section is entitled to receive witness

fees from that party as provided in Section 47 of the Fees and Salaries Act. [55 ILCS

45/47].

g)

Unless the hearing officer orders otherwise, any witness subpoenaed for a deposition

may be required to attend only in the county in which he resides or maintains an office

address. In accordance with Amended Supreme Court Rule 206(d), depositions shall

be limited to three hours in length unless the parties by stipulation agree to a longer

time frame or unless the hearing officer orders otherwise after a showing of good

cause. [Ill. S.Ct. Amended Rule 206 (d).]

h)

Failure of any witness to comply with a subpoena shall subject the witness to sanctions

under this Part, or the judicial enforcement of the subpoena. The Board may, upon

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BOARD PROPOSAL FOR PUBLIC COMMENT OCTOBER 3, 1996

Part 101-33

proper motion by the party requesting the subpoena, request the Attorney General to

pursue such judicial enforcement of the subpoena on behalf of the Board.

Section 101.624 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 as allowed by the Code of Civil Procedure. [735 ILCS 5/2-1102.]

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 101.626 Information Produced at Hearing

In accordance with Section 10-40 of the APA, 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. [5 ILCS 100/10-40.]

a)

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.

b)

When the admissibility of evidence depends upon an arguable interpretation of

substantive law, the hearing officer shall admit such evidence.

c)

Scientific Articles and Treatises. Relevant scientific or technical articles, treatises, or

materials may be introduced into evidence by a party. Such materials are subject to

refutation or disputation through introduction of documentary evidence or expert

testimony.

d)

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.

e)

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 will have been made in

the regular course of business, provided it was the 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 will not affect

admissibility. The term "business", as used in this subsection (e), includes business,

profession, occupation, and calling of every kind.

f)

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.

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BOARD PROPOSAL FOR PUBLIC COMMENT OCTOBER 3, 1996

Part 101-34

g)

Oral and written statements from non-party participants may be taken at hearing in

accordance with Section 101.628 of this Part.

Section 101.628 Statements from Non-Party Participants

a)

Oral statements. The hearing officer may permit a non-party participant, to make oral

statements on the record when time, facilities, and concerns for a clear and concise

hearing record so allow. Such oral statements shall be made under oath and are

subject to cross-examination.

b)

Written statements. Any non-party participant 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 in accordance with subsection (c) below and will be

afforded lesser weight than evidence subject to cross-examination.

c)

Post-hearing Comments or Amicus Curiae Briefs. Parties and non-party participants

may file post-hearing comments subject to the requirements of this section and the

hearing officer's schedule for completion of the record. The Board also allows for the

filing of Amicus Curiae briefs by non-party participants. Amicus Curiae briefs should

be filed in accordance with Section 101.110 of this Part.

1)

Post-hearing comments must be filed within 14 days after the close of the last

hearing unless the hearing officer specifies a different date for submission of

post-hearing comments. However, all post-hearing comments must be filed

with the Board no later than 30 days before the decision date, unless the

hearing officer orders otherwise to prevent material prejudice. Consistent

with the burden of proof in a case, the hearing officer may provide for

differing filing deadlines with respect to post-hearing comments by different

persons. Pursuant to hearing officer order, rebuttal post-hearing comments

may be submitted.

2)

All post-hearing comments must present arguments or comments based on

evidence contained in the record. Such comments may also present legal

argument citing legal authorities.

3)

Comments must be filed with the Board. Comments will be distributed to

parties and the hearing officer by the Clerk’s office.

SUBPART G: ORAL ARGUMENT

Section 101.700 Oral Argument

a)

The Board will hear oral argument upon written motion of a party or the Board's own

motion. Such oral argument will be transcribed by a stenographer provided by the

Board and become part of the record of the proceedings before the Board. The

purpose of oral argument is to address legal questions and oral argument is not

intended to address new facts.

b)

A written motion for oral argument must be filed within 14 days of the close of

hearing or, within 14 days of the filing of the petition or complaint, a motion for

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Part 101-35

summary judgment, a motion to dismiss, the filing of the Agency recommendation, or

any other substantive motion. Motions for oral argument shall contain arguments

supporting the grant of the motion for oral argument. In considering a motion for oral

argument, the Board will consider but is not limited to considering, the uniqueness of

the issue or case and whether the issue or case involves a conflict of law.

c)

A waiver of any statutory decision deadline must accompany a request.

d)

If the Board grants the motion for oral argument, it will issue an order setting forth a

schedule for oral argument including a briefing schedule. The brief will be limited to

the issues for which oral argument was granted.

SUBPART H: SANCTIONS

Section 101.800 Sanctions For Failure to Comply with Procedural Rules, Board Orders, or

Hearing Officer Orders

a)

If a party or any person fails to comply with any provision of 35 Ill. Adm. Code 101

through 130 or fails to comply with any order entered by the Board or the hearing

officer, including any subpoena issued by the Board, the Board may order sanctions.

The Board may order sanctions on its own motion, or in response to a motion by a

hearing officer or a party.

b)

Sanctions include but are not limited to the following:

1)

That further proceedings be stayed until the order or rules are complied with,

except in cases with a statutory decision deadline, such proceedings may be

dismissed prior to the date on which decision is due;

2)

That the offending person be barred from filing any other pleading relating to

any issue to which the refusal or failure relates;

3)

That the offending person be barred from maintaining any particular claim,

counter claim, third-party complaint, or defense relating to that issue;

4)

That, as to claims or defense asserted in any pleading to which that issue is

material, a judgment by default be entered against the offending person or

that the proceeding be dismissed with or without prejudice;

5)

That any portion of the offending person's pleadings relating to that issue be

stricken and, if appropriate, judgment be entered as to that issue;

6)

That the offending person pay the amount of reasonable expenses incurred by

the other party, which includes reasonable attorney fees, as a result of their

non-compliance with a Board rule or Board or hearing officer order; and

7)

That the offending party pay the amount of reasonable expenses incurred by

the Board as a result of their non-compliance with a Board rule or Board or

hearing officer order.

c)

The Board reserves the right to remove an attorney from the case if they are not

diligently prosecuting the case or diligently working toward settlement of the case.

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d)

In deciding what sanction to impose the Board will consider factors including, but not

limited to, the relative severity of the refusal or failure to comply, the past history of

the proceeding, and the degree to which the proceeding has been delayed or

prejudiced.

Section 101.802 Sanctions For Abuse Of Discovery Procedures

The Board or the hearing officer may order that information obtained through abuse of discovery

procedures be suppressed. If a person willfully obtains or attempts to obtain information by an

improper discovery method, willfully obtains or attempts to obtain information to which he is not

entitled, or otherwise abuses discovery rules, the Board or hearing officer may enter any order provided

for in Subpart F of this Part.

SUBPART I: DECLARATORY RULINGS

Section 101.900 Declaratory Rulings

a)

The Board may entertain requests for a declaratory ruling concerning the meaning or

applicability of a particular Section or Sections of the Act or the Board’s rules.

b)

The Board may entertain the request if it poses questions:

1)

Which are relevant to more than one pollution source;

2)

Involving newly effective sections of the Act or Board rules;

3)

To which the Board answer will involve administrative economics for the

Board or Agency

4)

Which involves a conflict of law.

c)

A written request for declaratory ruling may be filed by any person, and shall be

served on the Agency and the Attorney General. The request shall specify the section

of the Act or Board rules involved, pose the question, and explain how the factors

outlined in this Section are applicable.

d)

Clerk will docket such requests, and place them on the Board’s agenda for

consideration. The Board may, by order, allow responses to the request from the

Agency, the Attorney General, or any other person.

e)

If the Board grants the request, it will issue an opinion setting forth its views.

Opinions pursuant to this section are advisory only, and are not appealable pursuant to

Section 40 of the Act. [415 ILCS 5/40.] Pendancy of a request for declaratory ruling

does not automatically stay any case which may pose the same or similar issue.

SUBPART J: REVIEW OF FINAL BOARD OPINIONS AND ORDERS

Section 101.1000 Board Decisions

a)

In making its decision on a case, the Board will consider only the record of the

proceeding except:

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1)

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

take judicial notice; and

2)

Notice may be taken of generally recognized technical or scientific facts

within the Board’s specialized knowledge.

b)

Parties shall be notified either before or during the hearing, if any of the material

noticed, including any staff memoranda and data, and they shall be afforded an

opportunity to contest the material so noticed. The material so noticed must be

identified in the Board’s opinion and becomes part of the record for purposes of

appeal; and

c)

The Board’s experience, technical competence and specialized knowledge may be

utilized in the evaluation of evidence.

[5 ILCS 100/10-40(c).]

Section 101.1002 Motions For Reconsideration

In ruling upon a motion under this Section, the Board will consider factors including, but not limited to,

new evidence, a change in the law, or any other reason to conclude that the Board's decision was in

error.

Section 101.1004 Relief from and Review of Final Opinions and Orders

a)

Upon its own motion or motion from any party, the Board may correct clerical

mistakes in orders or other parts of the record and errors therein arising from oversight

or omission. Such mistakes may be so corrected by the Board before the 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;

2)

Fraud (whether intrinsic or extrinsic), misrepresentation, or other misconduct

of an adverse party; or

3)

Void order, such as an order based upon jurisdictional defects.

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

supported by oath or affidavit or other appropriate showing as to matters not of record.

All parties or participants in the proceeding shall be notified by the movant as

provided by Section 101.304 of this Part.

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d)

A motion under subsection (b) must be filed with the Board within one year after entry

of the order except that a motion pursuant to subsection (b)(3) must be filed within a

reasonable time after entry of the order.

e)

Any response to a motion under this Section must be filed within 14 days of the filing

of the motion.

Section 101.1006 Judicial Review Of Board Orders

a)

Pursuant to Sections 29 and 41 of the Act, Supreme Court Rule 335, and Section 10-

50 of the APA judicial review of Board opinions and orders is available from the

appellate court. [415 ILCS 5/29; 41 Ill. S.Ct.Rule 335; and 5 ILCS 100/10-50.]

b)

For purposes of judicial review, Board’s opinions and orders are appeallable as of the

date of service by the Board upon the appealing party.

c)

The procedure for stay of any Board order during appeal will be as provided in Rule

335 of the Rules of the Supreme Court of Illinois. [Ill. S.Ct.Rule 335.]

Section 101.1008 Interlocutory Appeal

Upon motion of any party the Board may consider an interlocutory appeal in accordance with Supreme

Court Rule 308. [Ill. S.Ct.Rule 308.]