ILLINOIS POLLUTION CONTROL
BOARD
September 15,
1994
IN THE MATTER OF:
PROCEDURAL RULES REVISION:
)
R94-l1
APPEALS FROM OFFICE OF
)
(Rulemaking)
THE STATE FIRE
MARSHAL
DETERMINATIONS
)
(35 ILL. ADM. CODE 107)
)
)
Pro~DosedRule.
Second Notice.
OPINION AND ORDER OF THE BOARD
(by C.
A.
Manning,
M. McFawn, and
J.
Theodore Meyer):
This matter
is before the Board on its own motion.
On
September 13,
1993,
the Governor signed into law P.A. 88-496,
“Petroleum Leaking Underground Storage Tanks”.1
While this new
underground storage tank
(UST)
law did not create a new program,
it substantially amended the administration of the old UST
program and the method by which petroleum leaks are remediated in
Illinois.
One of the significant changes
is the division of
program administration between the Illinois Environmental
Protection Agency
(Agency)
and the Office of the State Fire
Marshal
(OSFM).
The OSFM had always been responsible for the
“early action” activities at a UST site,
i.e.,
supervising tank
pulls and verifying petroleum leaks.
Under the new statutory
provisions, the
OSFN is now charged with the additional
responsibilities of determining whether an owner or operator is
eligible to seek reimbursement for corrective action from
Illinois’ UST Fund,
and,
if
so, determining the appropriate
deductible.
(415 ILCS 5/57.9(c).)
Under the old program, these
functions were performed by the Agency,
and owners and operators
were authorized to file appeals with the Board of those
eligibility and deductibility final determinations.
This new
legislation marks the first time that the OSFM’s final decisions
are appealable to the Board rather than to circuit court.2
P.A.
88-496, also known as H.B.
300,
added new Sections
57
through
59 to the Environmental Protection Act
(415 ILCS 5/57-
5/59)
(Act) and repealed Sections 22.13, 22.18,
22.18b, and
22. 18c.
2
P.A. 88-496 allows for appeals to the Board from
determinations made by both the Agency and the OSFM.
The
statutory sections providing for appeals from Agency
determinations specifically state that those appeals shall be
pursuant to Section 40 of the Act.
However, Section 57.9(c) (2),
which provides for appeals from OSFN determinations,
does not
2
In response, the Board has drafted procedural rules
implementing this new appeal process in the UST law.
On June 30,
1994, we adopted an opinion and order proposing the rules for
first notice.
The proposed rules were published in the Illinois
Register on July 22,
1994,
at 18 Ill.Reg.
11427.
The Board held
a public hearing in Springfield, Illinois on August 23,
1994.
After considering the testimony and public comments in this
proceeding, the Board today sends these proposed rules to second
notice.
PROPOSAL
The Board believes that P.A. 88-496 envisions prompt action
by the administrative agencies so that an owner or operator may
proceed to the remediation requirements and rapidly address any
contamination which may be a threat to human health, safety and
the environment.
Therefore, the proposed rules establish a
flexible hearing and decision process.
For a description of the
proposal,
see the Board’s first notice opinion
in this
rulemaking, dated June 30,
1994.
PUBLIC COMMENTS
The Board received 4 public comments during the comment
period in this proceeding.
Comments were submitted by:
PC#l
Office of the Illinois State Fire Marshal
PC#2
Department of Commerce and Community Affairs
PC#3
Secretary of State, Administrative Code Division
PC#4
Office of the Illinois Attorney General
The Board has considered all of these comments in making its
decisions on this proposal.
The OSFN raised two issues, both in its public comment and
at hearing.
First,
the OSFN states that its definition of
“underground storage tank”
or “UST” is more comprehensive than
the definition included at Section 107.103 of the proposed rules.
Thus,
the OSFM suggests adding a phrase to the definition
indicating that the definition used by OSFM shall take precedence
in the event of
a conflict between the two definitions.
The definition of “underground storage tank” or “UST”
proposed at Section 107.103
is identical to the definition
adopted today
in Regulation of Petroleum Leaking Underground
Storage Tanks:
35
Ill. Adm.
Code 732 (Pursuant to P.A.
88—496),
refer to Section 40.
These proposed rules do not presume the
applicability of Section 40 to OSFM appeals.
3
R94-2(A).3
That rulemaking contains the substantive regulations
implementing the UST program established by P.A.
88-496,
so that
the definition of “UST” used in this rulemaking, as well as in
R94—2 (A),
is derived directly from the statutory provisions of
P.A. 88—496.
(415 ILCS 5/57.2
(as added by P.A.
88—496,
effective September 13,
1993).)
The rules proposed in this
docket are procedural rules, implementing the appeal provisions
of P.A.
88—496, and are not intended to address substantive
eligibility issues.
We find that the definitions of “underground
storage tank”
or “UST” contained in these procedural rules must
be identical to the definition adopted in the technical rules
(R94—2(A)),
and consistent with the provisions of P.A. 88—496.
Therefore, we decline to accept the OSFM’s suggestion that in the
event of a conflict, the OSFM definition should take precedence.
We further believe that eligibility and deductibility
determinations made by the OSFM pursuant to Section 57.9 of the
Act should be made by referring to the definitions in the Act and
in the regulations adopted in R94-2(A).
This position is
supported by the Illinois Environmental Regulatory Group
(IERG),
which further stated that
it supports the adoption of the rules
as proposed at first notice.
(Tr. at 8—9.)
The OSFM raised a second concern, relating to the provisions
of proposed Section 107.122 “Contents of Petition”.
The OSFM
suggests that language be added to subsection
(b)
to clarify that
the petition shall describe the substance stored in each UST on
the site.
The Board agrees with the OSFM that added language
would clarify the rule and provide additional information with
each petition.
Therefore, that subsection will now read:
A complete and precise description of the underground
storage tank site,
including but not limited to the
location of the site, including the county, the number
of underground storage tanks on—site,
the substance(s)
stored in each tank,
the date of the tank(s)
registration; and the date of IEMA notification.
The Attorney General raised a number of issues in its
comments.
First,
the Attorney General recommends several non—
substantive corrections to proposed Sections 107.103,
107.201,
and 107.247.
The Board will make those corrections.
Second, the
Attorney General recommends changes to proposed Section 107.225
“Motions to Cancel Hearing”.
That section provides that requests
for cancellation of hearing must be filed no less than 14 days
before the scheduled hearing date,
and that any such request
The rules adopted in R94-2(A) are colloquially known as
the UST technical rules.
Those rules set forth the regulatory
requirements of the Illinois UST program,
as established by P.A.
88—496.
4
filed less than 14 days prior to hearing will be granted only
upon a showing of material prejudice.
The Attorney General
contends that these requirements should be deleted, because those
provisions do not allow for situations in which a settlement is
reached within a few days of hearing.
After considering the issue, the Board declines to make the
suggested changes.
We believe that these rules must provide
guidelines for a smooth, yet flexible, process.
When a hearing
is canceled close to the scheduled hearing date the Board incurs
costs for a hearing which is not held,
and the public notice of
that hearing is negated.
The Board will consider,
in the future,
whether we should impose hearing costs upon parties who wish to
cancel hearing less than the required number of days prior to
hearing.
Thus, we believe that it is important that the rules
specify a time for the filing of motions to cancel hearing.
We have,
however, shortened the time period from 14 days to
10 days,
and added a provision that a motion to cancel hearing
may be filed up to
5 days prior to hearing if all parties agree
to the request.
The provision that a motion to cancel filed less
than the required number of days prior to hearing may be granted
in the case of material prejudice will allow for additional
flexibility in implementing this rule.
Where a settlement
is
reached, proposed Section 107.280 “Settlement”
(as modified
today——see below)
allows for cancellation of hearing where a
settlement agreement is reached within
3 business days of the
hearing date.
We believe that these rules,
taken together,
protect the interests of the public, the Board,
and the parties.
Third, the Attorney General asks that the Board add a
provision to proposed Section 107.227 “Motions for Summary
Judgment” to either require that the Board rule on a motion for
summary judgment prior to the hearing date,
or to provide that
hearing be continued until after the Board reaches decision on
the motion.
The Board will not make those changes.
Because a
motion for summary judgment may be filed up to 21 days before
hearing, and because the non—moving party has
14 days in which to
respond,
it is impossible for the Board to always reach a
decision prior to a hearing date.
Likewise, there may be
situations
(for example, motions for partial summary judgment)
in
which cancellation of hearing is not warranted.
However, the
Board will add a new subsection
(e) specifically noting that a
party who wishes to cancel hearing pending decision on a motion
for summary judgment shall file a motion pursuant to Section
107. 225.
Fourth, the Attorney General notes that subsection
(C)
of
Section 107.228 “Motions for Reconsideration” is vague on the
issue of when the time for appeal of a final Board order begins
to run after a motion for reconsideration.
The Board agrees that
the language proposed at first notice was vague,
and we have
5
rewritten that subsection to read:
c)
A timely—filed motion for reconsideration or
modification stays the effect of the final order~
including the time for appeal of that order,
until
final disposition of the motion.
Thc time for
appeal of thc Board order runs anew after the
Board rules
ur~r~n
the motion unlccs otherwise
providcd.
Fifth, the Attorney General suggests changes to proposed
Section 107.280 “Settlement”.
The Attorney General states that
subsection
(a),
as currently drafted, would technically require
the parties to file all settlement proposals made during the
course of negotiations,
and that such a requirement
is overly
burdensome.
The Board agrees,
and will redraft subsection
(a) to
require the filing of settlement proposals only after agreement
is reached by the parties.
Additionally, the Board has revised
the period in which the parties can file a settlement agreement
and avoid a hearing.
Subsection
(a) will read:
a)
All parties to any case in which settlement
is
proposcdreached shall
file,
for the Board’s
approval,
a proposed stipulation and settlement
signed by all the parties or their authorized
representatives, outlining the nature of, the
reasons for,
and the purpose to be accomplished by
a settlement.
The stipulation and settlement
agreement must be accompanied by
a motion to
cancel hearing
in accordance with Section l07.225~.
1)
Parties wishing to settle without a hearing
in the case, must file the information
required in subsection
(a) above with the
Board,
and serve upon the hearing officer,
before the close of business at
least
~43
business days before the scheduled hearing
date. Any motion to cancel hearing filed less
than 3 business days before the hearing date
may be granted only upon a showing that
material prejudice would result from a
failure to cancel hearing.
2)
Stipulations and settlement agreements not
filed at least
343
business days before the
hearing shall be filed with the hearing
officer at the time of the scheduled hearing~
unless the hearing is cancelled pursuant to
subsection
(a) (1)
above.
Finally, the Attorney General suggests that language be
added to proposed Section 107.300 “Transcripts” to specify when
6
the transcript will be filed with the Board.
The Board will not
make this change, because the deadline for the filing of the
transcript by the court reporter sometimes changes from year to
year, depending upon the terms of the Board’s court reporting
contract.
The current deadline for filing of the transcript can
be ascertained by contacting the hearing officer or the Clerk of
the Board.
The Board has made several other changes to the proposed
rules.
We added a Board note to the definition of “operator”
in
Section 107.103.
This addition will make the definition of
“operator” in these rules consistent with the definition
contained in the UST technical rules, adopted today
in docket
R94-2(A).
Additionally, the Board has made a number of non-
substantive corrections and changes to the proposed rules.
All
changes are shown by strike-throughs and underlines.
CONCLUSION
The goal of these proposed rules is to create a streamlined
process where parties can quickly and easily obtain
a Board
decision in an appeal of an OSFM eligibility and deductibility
determination.
This will allow owners and operators of USTs to
move quickly through the entire UST corrective action and
reimbursement process.
ORDER
The Clerk of the Board is directed to submit these proposed
rules to the Joint Committee on Administrative Rules
(JCAR)
for
second notice:
TITLE 35:
ENVIRONMENTAL PROTECTION
SUBTITLE A:
GENERAL PROVISIONS
CHAPTER
I:
POLLUTION CONTROL BOARD
PART 107
OFFICE OF THE STATE FIRE MARSHAL APPEALS
SUBPART A:
GENERAL PROVISIONS
Section
107.100
Applicability
107.101
Severability
107.102
General Overview
107.103
Definitions
SUBPART B:
PLEADINGS AND PROCESS
Section
107.120
Who May File; Parties
7
107
.
121
107. 122
107.123
107.124
Section
107.140
107.141
Section
107.160
1r~7
1~1
Timely Petition
Contents of the Petition
Service
OSFN Appearance and Record
SUBPART
C:
INITIAL BOARD ACTION
Preliminary Board Determination:
Accept for Hearing
Preliminary Board Determinations:
Insufficient Petition
SUBPART D:
NOTICE OF HEARING
CchcdulingAuthorization of Hearing
SUBPART E:
AUTHORITY AND DUTIES OF HEARING OFFICERS
Section
107.180
107.181
Section
107.200
107.201
107.202
Section
107.220
107.221
107.222
107.223
107.224
107.225
107.226
107.227
107.228
Authority of Hearing Officers
Duties of Hearing Officers
SUBPART
F:
PRE-HEARING MATTERS, DISCOVERY,
ADMISSIONS AND SUBPOENAS
Pre—Hearing Conference
Discovery in General
Subpoenas
SUBPART G:
MOTION PRACTICE
Filing and Contents of Motions and Responses
Motions Attacking Jurisdiction or Sufficiency of the
Pleadings
Notions Preliminary to Hearing
Effect of Filing and Disposition of Motion~
Voluntary Dismissal
Motions to Cancel Hearing
Motions to Stay
Motions for Summary Judgment
Motions for Reconsideration
SUBPART
H:
HEARINGS
Hearings Open to the Public
Order of Cases
Order of Proceedings
Testimony at Hearing
Section
107 .240
107.241
107 .242
107.243
8
107.244
107.245
107.246
107.247
Section
107.260
Admissibility of Evidence
Examination of Adverse and Hostile Witnesses
Amendment of Pleadings
Default
SUBPART
I: PUBLIC PARTICIPATION
Statements from Interested Persons
SUBPART J:
SETTLEMENT
Section
107.280
Section
107.300
107.301
107.302
Settlement
SUBPART K:
POST-HEARING MATTERS
Section
107.320
Sanctions
SUBPART N:
FINAL BOARD ACTION
Standard of Review
Contents of Board Opinions
Duties of the Clerk
SUBPART N: MOTIONS FOR RECONSIDERATION
AND RELIEF FROM FINAL BOARD ORDERS
Section
107.360
107.361
107.362
Motions for Reconsideration
Relief from Final Orders
Judicial Review of Final Board Orders
AUTHORITY:
Authorized by Section 26 of the Illinois
Environmental Protection Act 415
ILCS 5/26
(1992)3 and
implementing Section 57.9(c)
of the Environmental Protection Act
415
ILCS 5/57.9(c),
as added by P.A.
88—496, effective September
13,
1993.
SOURCE:
Adopted in R94-11 at 18
Ill.
Reg.
________,
effective
Hearing Transcripts
Written Briefs
Record of Proceeding
SUBPART L:
SANCTIONS
107.340
107.341
107.342
NOTE:
Capitalization denotes statutory language.
9
SUBPART A: GENERAL PROVISIONS
Section 107.100
Applicability
This Part applies to proceedings before the Illinois Pollution
Control Board
(Board) concerning appeals from Office of State
Fire Marshal
(OSFM)
final determinations made pursuant to Section
57.9(c)
of the Environmental Protection Act.
415
ILCS
5/57.9(c)(l992).
This Part shall be read in conjunction with 35
Ill. Adm. Code 101 which contains procedures generally applicable
to Board proceedings.
In the event of a conflict between the
requirements of
35 Ill.
Adm. Code 101 and those of this Part,
the
provisions of this Part shall apply.
Section 107.101
Severability
If any provision of this Part or its application to any person or
under any circumstances
is adjudged invalid, such adjudication
shall not affect the validity of this Part as a whole or of any
portion not adjudged invalid.
Section 107.102
General Overview
These procedural rules promote administrative efficiency in the
Board’s consideration of appeals of OSFM Eligibility and
Deductibility Final Determinations.
The process before the Board
includes,
but is not limited to, the following steps.
Upon
receipt of a petition for review, unless the Board or its
designee makes a preliminary determination that the petition is
insufficient,
a hearing date and location will be assigned.
Though hearings will be publicly-noticed in the county where the
underground storage tank site is located,
in most cases the
hearings will take place
in either Chicago or Springfield.
The
Board envisions that if the parties enter into settlement prior
to or during the hearing process, the parties may request that
the Board accept and enter a final order adopting a proposed
settlement agreement; such an order may be requested with or
without a hearing.
Section 107.103
Definitions
Except as otherwise defined in this section, definitions of terms
used in this Part shall be those used in the Environmental
Protection Act 415
ILCS 5/1 et seq.
“Act” means the Environmental Protection Act
415
ILCS
5/1 et seq (1992).
“Board” means the Illinois Pollution Control Board or
its designee.
“Eligibility and Deductibility Determination Form”
10
means a form provided by the Office of State Fire
Marshal to the owner or operator either on site or
within 15 days of receipt of notice indicating a
confirmed release.
(Derived from Section 57.9(c)
of
the Act).
“Eligibility and Deductibility Final Determination”
means the letter issued by the Office of State Fire
Marshal enunciating the final eligibility and
deductibility determination of an owner or operator who
has reported a confirmed release of a regulated
substance to access the Underground Storage Tank Fund.
(Derived from Section 57.9(c)
of the Act).
“FUND” MEANS THE UNDERGROUND STORAGE TANK FUND.
(Section 57.2 of the Act.)
“IEMA” means the Illinois Emergency Management Agency.
“OSFM” means the Office of State Fire Marshal.
“Operator” means any person in control of, or having
responsibility for, the daily operation of the
underground storage tank.
(42 U.S.C.
§ 68816991).
BOARD NOTE:
A person who voluntarily undertakes action
to remove an underground storage tank system from the
ground shall not be deemed an “operator” merely by the
undertaking of such action.
“Owner” means:
In the case of an underground storage tank in use
on November 8,
1984,
or brought into use after
that date,
any person who owns an underground
storage tank used for the storage, use or
dispensing of regulated substances;
In the case of any underground storage tank in use
before November 8,
1984,
but no longer in use on
that date,
any person who owned such underground
storage tank immediately before the
discontinuation of its use.
(42 U.S.C.
§ 6991).
“Registration” means registration of an underground
storage tank with the OSFM in accordance with Section 4
of the Gasoline Storage Act
(430 ILCS
15/4).
“SITE” MEANS ANY SINGLE LOCATION,
PLACE, TRACT OF LAND
OR PARCEL OF PROPERTY INCLUDING CONTIGUOUS PROPERTY NOT
SEPARATED BY A PUBLIC RIGHT-OF-WAY.
(Section 57.2 of
the Act).
11
“Underground Storage Tank”
or “UST” means any one or
combination of tanks
(including underground pipes
connected thereto) which
is used to contain an
accumulation
of regulated substances, and the volume of
which
(including the volume of underground pipes
connected thereto)
is
10 per centum or more beneath the
surface of the ground.
Such term does not include any
of the following or any pipes connected thereto:
Farm or residential tank of 1,100 gallons or less
capacity used for storing motor fuel for
noncommercial purposes;
Septic tank;
Pipeline facility (including gathering lines)
regulated under the Natural Gas Pipeline Safety
Act of 1968
(49 U.S.C.
App. 1671 et seq.),
or the
Hazardous Liquid Pipeline Safety Act of 1979
(49
U.S.C. App.
2001 et seq.),
or which is an
intrastate pipeline facility regulated under State
laws as provided in either of these provisions of
law, and which is determined by the Secretary to
be connected to a pipeline or to be operated or
intended to be capable of operating at pipeline
pressure or as an integral part of a pipeline;
Surface impoundment, pit,
pond,
or lagoon;
Storm water or waste water collection system;
Flow-through process tank;
Liquid trap or associated gathering lines directly
related to oil or gas production and gathering
operations;
or
Storage tank situated in an underground area
(such
as a basement, cellar, mineworking, drift,
shaft,
or tunnel)
if the storage tank is situated upon or
above the surface of the floor.
(Derived from 42
U.S.C.S 6991).
THE TERM “UNDERGROUND STORAGE TANK” SHALL ALSO
MEAN AN UNDERGROUND STORAGE TANK USED EXCLUSIVELY
TO STORE HEATING OIL FOR CONSUMPTIVE USE ON THE
PREMISES WHERE STORED
AND
WHICH SERVES OTHER THAN
A FARM OR RESIDENTIAL UNIT.
(Section 57.2 of the
Act).
SUBPART
B:
PLEADINGS AND PROCESS
12
Section 107.120
Who Nay File; Parties
Any owner or operator of an underground storage tank who has been
issued an “Eligibility and Deductibility Final Determination”
letter may file a petition with the Board seeking review of that
final decision.
The owner/operator shall be named as the
petitioner, and the OSFM shall be named as the respondent.
Filing requirements are set forth
at 35
Ill.
Adm.
Code
lOl.Subpart A.
Section 107.121
Timely Petition
The petition for review must be filed with the Board within 35
days of the date of the OSFM’s “Eligibility and Deductibility
Final Determination” letter.
There shall be a rebuttable
presumption that petitioner received the OSFM’s “Eligibility and
Deductibility Final Determination” letter four days from the date
indicated on the letter.
Section 107.122
Contents of the Petition
A petition for review must include:
a)
A copy of the OSFM’s “Eligibility and Deductibility
Final Determination” letter;
b)
A complete and precise description of the underground
storage tank site, including but not limited to the
location of the site,
including the county, the number
of underground storage tanks on—site, the substance(s)
stored in each tank,
the date of the tank(s)
registration; and the date of IEMA notification;
C)
A concise statement of the relief being sought before
the Board;
d)
A concise statement of the issues on review before the
Board;
e)
If the owner or operator is represented by counsel,
an
appearance shall be filed in conjunction with the
petition;
f)
Documentation to demonstrate the petition’s timely
filing; and
g)
A request to hold the hearing in either Springfield or
Chicago,
or a request to conduct hearing at a specified
location other than Springfield or Chicago,
specifying
the reasons for that request. A hearing will be held in
an alternate location only to prevent material
prejudice or undue delay.
13
Section 107.123
Service
a)
The petitioner shall serve all filings upon the OSFM.
All filings shall
be accompanied by a notice of filing.
b)
Methods and proof
of service,
as well as the effective
date of service, are governed by 35
111.
Adm. Code
1O1.Subpart C.
Section 107.124
OSFM Appearance and Record
a)
The OSFM shall appear as a respondent.
b)
Within 14 days of receipt of the notice of filing of
the petition for review, the OSFM shall file an
appearance and the record before the Board.
The record
shall include all information which served as
a basis
for the OSFM’s “Eligibility and Deductibility Final
Determination” letter,
including but not limited to:
1)
A copy of the “Eligibility and Deductibility Final
Determination” letter;
2)
A completed copy of the “Eligibility and
Deductibility Determination Form” upon which the
OSFM made its final determination;
3)
Any and all correspondence with the applicant;
4)
Any and all forms completed by the owner or
operator which served as a basis for the OSFM
final decision; and
5)
Any memoranda or correspondence which served as a
basis for the OSFN final decision.
SUBPART
C:
INITIAL BOARD ACTION
Section 107.140
Preliminary Board Determination:
Accept for
Hearing
a)
Upon receipt of the petition for review, unless the
Board makes a preliminary determination that the
petition is insufficient pursuant to Section 107.122,
a
hearing date and location will be assigned.
b)
If the petition does not satisfy Section 107.122, the
case shall be referred to the Board for consideration
pursuant to Section 107.141.
Section 107.141
Preliminary Board Determinations:
Insufficient Petition
14
On its own motion, the Board may determine that a petition for
review is untimely,
insufficient,
or otherwise improperly filed.
If such a determination is made,
the Board may either dismiss the
petition or direct that an amended petition be filed.
Upon the
filing of a sufficient amended petition, the case may be set for
hearing pursuant to Section 107.160.
SUBPART D:
NOTICE OF HEARING
Section 107.160
Authorization of Hearing
a)
The Board will set a case for hearing.
The hearing
will be held within 60 days after the filing of the
petition for review unless the Board orders otherwise
to prevent material prejudice.
b)
The hearing will be held in either Springfield or
Chicago or in such other place as the hearing officer
or the Board may designate to prevent material
prejudice or undue delay.
c)
Upon the case being set for hearing, the Clerk will
cause notice of the hearing to be published.
Public
notice will be published at least 21 days before the
hearing by public advertisement in a newspaper of
general circulation in the county in which the UST site
in question is located.
SUBPART E:
AUTHORITY AND DUTIES OF HEARING OFFICERS
Section 107.180
Authority of Hearing Officers
The hearing officer shall have all powers necessary to schedule
and conduct a fair hearing,
including but not limited to the
following:
a)
Issue discovery orders whenever the parties cannot
agree upon the legitimate scope of discovery,
including
the setting of a schedule for the orderly submission of
discovery;
b)
Issue protective orders pursuant to Section 107.201(e)
below;
c)
Rule on objections to discovery pursuant to
Section
107.201(f)
below;
d)
Hold pre—hearing conferences for settlement,
simplification of issues or any other purpose;
e)
At hearing, rule on objections and offers of proof, and
receive evidence in accordance with Section 107.244
15
below;
f)
Administer oaths and affirmations;
g)
Regulate the course of the hearings,
and the conduct of
the parties and counsel;
h)
Consider and rule on any non-dispositive motions;
i)
Examine the witnesses to insure a clear and complete
record;
j)
Determine that a witness is adverse or unwilling
pursuant to Section 107.245 below; and
k)
Compel the appearance at hearing of an officer,
director or employee of a party pursuant to Section
107.245 below.
Section 107.181
Duties of Hearing Officers
The hearing officer has the duty to take all necessary action to
avoid delay, to maintain order,
and to ensure development of a
clear and complete record.
Additionally,
it is the hearing
officer’s duty to accomplish the following:
a)
Establish a schedule for submission of briefs to the
Board.
All schedules and any modifications to
schedules shall be in writing, and shall be submitted
to the Board by the hearing officer no later than
5
days after hearing;
b)
At the conclusion of the hearing, the hearing officer
shall make a statement both on the record and
in
writing as to the credibility of witnesses.
This
statement shall be based on his legal judgment and
experience and shall indicate whether he finds
credibility to be an issue and if so,
the reasons why.
This statement shall become part of the official
record;
c)
The hearing officer shall transmit to the Clerk any
exhibits,
offers of proof not included in the hearing
transcript,
any proposed stipulation and settlement,
and any written statements submitted pursuant to
Section 107.280(b); and
d)
The hearing officer shall file a copy of all
correspondence,
schedules and hearing officer orders
with the Clerk,
and serve all parties pursuant to 35
Ill.
Adm. Code 101.142.
16
SUBPART F:
PRE-HEARING MATTERS, DISCOVERY,
ADMISSIONS AND SUBPOENAS
Section 107.200
Pre—Hearing Conference
a)
On the hearing officer’s own motion, or on motion by a
party,
the hearing officer may direct the parties or
their attorneys to appear at a specified time and place
for a conference for, among other reasons,
the
following purposes:
1)
Simplifying the issues;
2)
Amending the pleadings for clarification,
amplification,
or limitation;
3)
Making admissions of fact or stipulating to the
admissibility of any matter;
4)
Limiting the number of witnesses;
5)
Exchanging prepared testimony and exhibits; and
6)
Aiding in the simplification of the evidence and
disposition of the proceeding.
b)
A pre-hearing conference may also be held by telephone.
C)
Substantive action taken at the pre—hearing conference
shall be noted by the hearing officer, either on the
record at hearing or in writing.
Section 107.201
Discovery in General
a)
Scope of Discovery:
All relevant information and
information calculated to lead to relevant information
is discoverable, unless privileged.
b)
Disagreements on Discovery:
If the parties cannot
agree on the scope of discovery or the time or location
of any deposition,
the hearing officer shall have the
authority to order discovery or to deny requests for
discovery.
c)
Time for Discovery:
All discovery must be completed
prior to the scheduled hearing in the case.
Disputes
over the timing of discovery shall be directed to the
hearing officer.
d)
Purpose of Discovery:
All depositions and
interrogatories shall be for purposes of discovery
only,
except for the following purposes:
17
1)
Impeachment of the testimony of the deponent or
interrogated person;
2)
As an admission of the deponent or interrogated
person; a~or
3)
As evidence, upon motion to the hearing officer,
upon a showing that at the time of hearing the
person deposed or interrogated will not be
available to participate in the hearing because of
exceptional circumstances,
including,
but not
limited to,
death,
age, sickness,
infirmity,
or
absence from the country.
e)
Protective Orders:
The hearing officer may, upon his
own initiative,
or on the motion of any party or
witness,
issue protective orders denying,
limiting,
conditioning or regulating discovery to prevent
unreasonable expense, harassment, or oppression,
and to
expedite resolution of the proceeding.
f)
Objections to Discovery:
Unless a claim of privilege
is asserted,
it is not a ground for objection that the
testimony of a deponent or person interrogated will be
inadmissible at hearing,
if the information sought is
reasonably calculated to lead to relevant information.
All objections to rulings of the hearing officer shall
be made on the record at hearing,
or in writing prior
to hearing.
g)
Failure to Comply:
Failure to comply with any order
regarding discovery shall subject the offending persons
to sanctions pursuant to Subpart K~below.
h)
If any person in bad faith files any request for
discovery or answers to discovery, or knowingly gives
a
false answer to discovery questions, the Board, upon
motion or on its own initiative, may impose sanctions
pursuant to Subpart
~cJ~
below.
Section 107.202
Subpoenas
Subpoenas are governed by the provisions of 35 Ill.
Adm. Code
101.260.
SUBPART G:
MOTION PRACTICE
Section 107.220
Filing and Contents of Motions and Responses
Filing and contents of motions are governed by
35
Ill.
Adm. Code
101.241 and 101.242.
18
Section 107.221
Motions Attacking Jurisdiction or Sufficiency
of the Pleadings
Notions attacking jurisdiction or the sufficiency of pleadings
shall be filed pursuant to 35
Ill. Adm. Code 101.243.
Section 107.222
Motions Preliminary to Hearing
Notions preliminary to hearing (except motions to cancel hearing,
governed by Section 107.225)
shall be filed pursuant to 35 Ill.
Mm.
Code 101.245.
Section 107.223
Effect of Filing and Disposition of Motions
Provisions regarding the effect of filing a motion,
and the
disposition of motions,
are set forth at
35
Ill.
Adm. Code
101.247.
Appeals of hearing officer rulings to the Board are
governed by 35
Ill.
Adm. Code 101.247(b).
Section 107.224
Voluntary Dismissal
A motion by petitioner to voluntarily dismiss an appeal shall be
directed to the Board.
Such motion may be made orally at
hearing, or filed in writing prior to entry of the Board’s
decision.
If made orally, that motion will be recorded by the
hearing officer in writing and transmitted to the Board within
5
days of the close of that hearing.
Section 107.225
Motions to Cancel Hearing
a)
Time for Filing:
Unless otherwise provided by Board or
hearing officer order, requests for cancellation of
hearing may be granted upon motion to the hearing
officer,
filed no less than 141Q 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 ~43~Qdays,
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 cancelled.
Motions to cancel hearing based
upon a settlement agreement are exempt from this
Section, and are covered by Section
107.280 of this
Part.
b)
Contents:
All motions for cancellation shall be
supported by an affidavit of the person or persons
having knowledge of the facts supporting the request
for cancellation.
The affidavit shall include the
factual bases for the cancellation,
a complete status
report detailing the progress of the proceeding, the
number of cancellations previously granted, and a
19
proposed date for rescheduling the hearing.
The
hearing officer shall grant the motion only upon a
showing that the request for cancellation is not the
result of lack of due diligence by the movant.
Section 107.226
Notions to Stay
a)
Motions to stay a proceeding shall be directed to the
Board.
All motions to stay shall include a complete
status report detailing the progress of the proceeding
and a proposed date for further action in the
proceeding.
b)
The Board will act upon all motions to stay.
If the
motion to stay
is granted, the Board may direct the
hearing officer to require status reports during the
pendency of the stay.
c)
At the conclusion of the stay,
the hearing officer will
contact the parties and establish
a new hearing
schedule, unless the case is otherwise resolved.
Section 107.227
Motions for Summary Judgment
a)
Notion:
Any time after the opposing party has appeared
(or after the expiration of time within which any party
is required to appear), but no
less than 21 days prior
to the scheduled hearing,
a party may move the Board
for summary judgment for all or any part of the relief
sought.
b)
Response:
Any response to a motion for summary
judgment shall be filed within
14 days from service of
that motion.
c)
Reply:
The moving party shall not have the right to
reply to a response, unless allowed by the Board or the
hearing officer to prevent material prejudice.
d)
Board Determination:
The Board will enter summary
judgment if the pleadings, depositions and admissions
on file, together with any affidavits,
show that there
is no genuine issue of material fact,
and that the
moving party is entitled to judgment as a matter of
law.
~j
Any party wishing to cancel hearing pending decision on
a motion for summary -iudqment shall file a motion to
cancel hearing pursuant to Section 107.225 of this
Part.
Section 107.228
Motions for Reconsideration
20
a)
Any motion for reconsideration or modification of a
Board order shall be filed within 35 days of the
adoption of the order.
b)
Any response to a motion for reconsideration or
modification shall be filed within 14 days from the
service of the motion.
c)
A timely—filed motion for reconsideration or
modification stays the effect of the final order~
including the time for appeal of that order, until
final disposition of the motion.
The time for appeal
of the Board order runs anew after the Board rules upon
the motion unless otherwise provided.
d)
In ruling upon a motion under this Section, the Board
will consider factors including, but not limited to,
error in the decision and facts
in the record which
were overlooked.
SUBPART H:
HEARINGS
Section 107.240
Hearings Open to the Public
All hearings conducted under this Part shall be open to the
public.
Section 107.241
Order of Cases
In the event that more than one eligibility/deductibility
determination appeal is scheduled for hearing on the same day,
cases will be heard in numerical order,
by docket number, with
the exception that any case with a completed stipulation and
settlement pursuant to Section 107.300 shall be heard first.
The order of hearing of cases
shall be subject to modification by
the hearing officer in order to avoid material prejudice or undue
delay.
Section 107.242
Order of Proceedings
a)
The following shall be the order of proceedings for all
hearings:
1)
Opening of the record of hearing and introduction
of the parties by the hearing officer;
2)
Presentation, argument,
and disposition of motions
preliminary to hearing;
3)
Presentation of opening statements, with
petitioner proceeding first and respondent
proceeding second;
21
4)
Petitioner’s case in chief;
5)
Respondent’s case in chief;
6)
Oral and/or written statements from interested
persons, as authorized by the hearing officer
pursuant to Section 107.260 below;
7)
Respondent’s case in rebuttal,
limited to the
rebutting of statements and assertions contained
in the oral and written statements allowed
pursuant to subsection
(a) (6)
above;
8)
Petitioner’s case in rebuttal;
9)
Respondent’s closing arguments,
including legal
arguments;
10)
Petitioner’s closing arguments,
including legal
arguments;
and
11)
Scheduling submission of written briefs,
if any.
b)
The order of hearing specified in subsection
(a)
above
shall be subject to modification by the hearing officer
in order to avoid material prejudice or undue delay.
Section 107.243
Testimony at Hearing
All witnesses shall be sworn and shall testify under oath.
All
testimony at hearing shall be subject to cross—examination by any
party.
Section 107.244
Admissibility of Evidence
a)
Admissibility:
The hearing officer shall admit
evidence which
is admissible under the rules of
evidence as applied in the civil courts of Illinois,
except as otherwise provided in this Part.
b)
Hearsay:
The hearing officer may admit hearsay
evidence which is material, relevant, and would be
relied upon by prudent persons in the conduct of
serious affairs,
unless such evidence
is privileged.
C)
When the admissibility of evidence depends upon an
arguable interpretation of substantive
law, the hearing
officer shall admit such evidence.
d)
Scientific Articles and Treatises:
Relevant scientific
or technical articles, treatises,
or materials may be
introduced into evidence by a party,
subject to
22
refutation or disputation through introduction of
documentary evidence or expert testimony.
e)
Written testimony:
Written testimony may be introduced
by a party only if the persons whose written testimony
is introduced are available for cross—examination at
hearing.
f)
Admission of business records:
A writing or record,
whether in the form of any entry in a book or otherwise
made as a memorandum or record of any act, transaction,
occurrence, or event, may be admissible as evidence of
the act, transaction, occurrence,
or event.
To be
admissible, the writing or record shall have been made
in the regular course of business, provided it was the
regular course of business to make such a memorandum or
record at the time of such act, transaction,
occurrence,
or event,
or within a reasonable time
thereafter.
All other circumstances of the making of
the writing or record,
including lack of personal
knowledge by the entrant or maker, may be admitted to
affect the weight of the evidence, but shall not affect
admissibility.
The term “business”, as used in this
subsection
(f),
includes business, profession,
occupation,
and calling of every kind.
g)
Prior Inconsistent Statements:
Prior statements made
under oath may be admitted to impeach a witness if the
statement is inconsistent with the witness’ testimony
at hearing.
Section 107.245
Examination of Adverse and Hostile Witnesses
a)
Adverse Witnesses:
At hearing, upon motion to the
hearing officer, any party,
or any person for whose
immediate benefit the action is prosecuted or defended,
or the officers, directors, managing agents, or foremen
of any party may be called as an adverse witness.
Adverse witnesses may be examined as if under cross—
examination.
The party calling for the adverse witness
may rebut the testimony and may impeach the witness.
b)
Hostile Witnesses:
If the hearing officer determines
that any witness
is hostile or unwilling, the witness
may be examined by the party calling the witness as
if
under cross—examination.
Section 107.246
Amendment of Pleadings
Proof may depart from pleadings, and pleadings may be amended to
conform with the proof,
so long as no unfair surprise results
that cannot be remedied by a continuance which could be granted
23
consistent with the minimum timelines prescribed by this Part.
Section 107.247
Default
Failure of a party to appear e~i—atthe hearing,
or failure to
proceed as ordered by the Board or hearing officer, shall
constitute default.
SUBPART
I: PUBLIC PARTICIPATION
Section 107.260
Statements from Interested PartiesPersons
a)
Oral statements:
The hearing officer may permit any
person not a party and not otherwise a witness for a
party,
to make oral statements on the record when time,
facilities and concerns for a clear and concise hearing
record allow so.
Such oral statements shall be made
under oath and are subject to cross examination.
b)
Written statements:
Any person not a party and not
otherwise
a witness for a party may submit written
statements relevant to the subject matter at any time
prior to hearing or at hearing.
Any persons submitting
such
a statement shall be subject to cross examination
by any party.
Written statements submitted without the
availability of cross—examination will be treated as
public comment and shall
be afforded lesser weight than
evidence subject to cross examination.
SUBPART J:
SETTLEMENT
Section 107.280
Settlement
a)
All parties to any case in which settlement is
proposedreached shall file,
for the Board’s approval,
a
proposed stipulation and settlement signed by all the
parties or their authorized representatives, outlining
the nature of, the reasons for, and the purpose to be
accomplished by a settlement.
The stipulation and
settlement agreement must be accompanied by a motion to
cancel hearing in accordance with Section 107.225.
1)
Parties wishing to settle without a hearing
in the case, must file the information
required in subsection
(a)
above with the
Board,
and serve upon the hearing officer,
before the close of business at least
443
business days before the scheduled hearing
date. Any motion to cancel hearing filed less
than
3 business days before the hearing date
may be granted only upon a showing that
material prejudice would result from a
24
failure to cancel hearing.
2)
Stipulations and settlement agreements not
filed at least
-143
business days before the
hearing shall be filed with the hearing
officer at the time of the scheduled hearing~
unless the hearing
is cancelled pursuant to
subsection
(a) (1’
above.
b)
The stipulation shall contain a full statement of all
material facts pertaining to the nature of the OSFM’s
determination of deductibility or eligibility.
c)
If the provisions of subsection
(a) (1)
above are
fulfilled,
the Board may accept a stipulation and
settlement without a public hearing.
SUBPART K:
POST-HEARING MATTERS
Section 107.300
Hearing Transcripts
The Board will provide for a court reporter who shall transcribe
the entire hearing.
The original transcription shall be filed
with the Board.
Any party or witness may move to correct the
transcript within
7 days of the filing of the transcript with the
Board.
Section 107.301
Written Briefs
a)
Except as otherwise directed by the Board,
all briefs
shall be filed in accordance with the briefing schedule
established by the hearing officer pursuant to Section
107.181 aboveof this Part.
Any party may move the
Board for an extension of time to file briefs in
accordance with Subpart G aboveof this Part.
b)
The briefs shall set forth the party’s legal arguments
including citation to authorities and to the pages of
the record relied upon.
All briefs shall comply with
the provisions of
35 Ill.
Adm. Code 101.104.
c)
The parties may waive their right to file
a brief
either orally on the record at hearing or by written
motion.
Section 107.302
Record of Proceeding
All pleadings, motions,
orders,
briefs, the transcript of
hearing,
offers of proof,
exhibits, and any written statements
from the public, and stipulation and settlement agreements shall
constitute the record.
25
SUBPART L:
SANCTIONS
Section 107.320
Sanctions
The imposition of sanctions for refusal to comply with procedural
rules,
Board orders,
or hearing officer orders, or for abuse of
discovery procedures, are governed by 35
Ill. Adm. Code
lol.Subpart
J.
SUBPART M:
FINAL BOARD ACTION
Section 107.340
Standard of Review
The standard of review of an OSFM final determination is whether
the application,
as submitted to OSFM,
demonstrates compliance
with the Act and Board regulations.
Section 107.341
Contents of Board Opinions
a)
The Board will issue
a written opinion and order
stating the facts and reasons leading to its decision.
b)
The Board’s opinions and orders will include, but are
not limited to, findings of fact and conclusions of
law.
Section 107.342
Duties of the Clerk
The Clerk shall certify and maintain copies of the opinions and
orders of the Board, with the vote of each Board member recorded.
The Clerk shall serve all parties with a copy of such opinions
and orders by certified mail,
return receipt requested.
SUBPART N: MOTIONS FOR RECONSIDERATION
AND RELIEF FROM FINAL BOARD ORDERS
Section 107.360
Motions for Reconsideration
Motions for reconsideration of a final Board order shall be filed
and acted upon pursuant to Section 107.228 above.
Section 107.361
Relief from Final Orders
a)
Clerical mistakes in orders or other parts of the
record and errors therein arising from oversight or
omission may be corrected by the Board at any time on
its own initiative or on the motion of any party and
after such notice,
if any,
as the Board orders.
Such
mistakes may be so corrected by the Board before any
appeal
is docketed in the appellate court.
Thereafter,
while the appeal
is pending,
such mistakes may be
corrected only with leave of the appellate court.
Any
26
corrected order will be mailed to all parties and
participants in that proceeding.
b)
On written motion, the Board may relieve a party from a
final order entered in a contested case,
for the
following:
1)
Newly discovered evidence which existed at the
time of hearing and which by due diligence could
not have been timely discovered;
or
2)
Fraud (whether intrinsic or extrinsic),
misrepresentation,
or other misconduct
of an
adverse party; or
3)
Void order,
such as an order based upon defective
subject—matter jurisdiction.
c)
A motion under this Section does not affect the
finality of
a Board order or suspend the operation of a
Board order.
The motion must be filed in the same
proceeding in which the order was entered but is not a
continuation of the proceeding.
The motion must be
supported by affidavit or other appropriate showing as
to matters not of record, and must be served on all
parties to the proceeding.
d)
A motion under subsection
(b)
above shall be filed with
the Board within one year after entry of the order.
e)
Any response to a motion under this Section shall be
filed within 14 days of the filing of the motion.
Section 107.362
Judicial Review of Final Board Orders
Judicial review of final Board orders shall be pursuant to
Section 41 of the Act.
Appeal
is directly to the appellate
court.
IT IS SO ORDERED.
I, Dorothy N.
Gurin,
Clerk of the Illinois Pollution Control
Board,
hereby cert~ythat the above~pinionand order was
adopted on the
/~5~-~~--
day of
~
,
1994,
by a vote
of
~C.
2’
~
?~-.
~
Dorothy M.
Gu~jin, Clerk
Illinois Po1~Aition Control Board
