ILLINOIS POLLUTION CONTROL BOARD
April
1,
1987
IN THE MATTER OF:
PROCEDURAL RULES
)
)
)
R82—27
R82—36
Consol.
R83—37
ORDER OF THE BOARD
(by
3. Theodore Meyer):
In order
to break what
is currently Section 103.140 of
Subpart C “Motions, Joinder and Intervention” of Part 103
“Enforcement Proceedings”
of the Board’s Procedural Rules into
three smaller
sections,
it
is necessary to
recodify them.
Other
than splitting
this large section into
three smaller
sections,
the process of recodification does not allow for any substantive
changes
to be made
to the text of the rules.
Any such amendments
will
be made during the process of amending the procedural rules
as
a whole.
Renumbering
of certain other sections was also
necessitated by this recodification.
The following table
clarifies the renumbering
and recodification accomplished by this
Order.
Conversion Table of Present and Recodified Parts:
Present Part
(Section Numbers)
103.140 (a)
103.140(b)
103.140(c)
103.140(d)
103. 140(e)
103. 140(f)
103.140(g)
103.140 (h)
103.140(i)
103. 141
103.142
Recodified Part
(Section Numbers)
103.141(a)
103.140(a)
103. 140(b)
103. 140(c)
103.142(a)
103.142(b)
103.142(c)
103.142(d)
103.141(b)
103.144
103.145
ORDER
The Board
hereby adopts
the following recodification and
renumbering amendments
to Title
35:
Environmental Protection;
Subtitle
A:
General Provisions; Chapter
I:
Pollution Control
Board; Part 103:
Enforcement Proceedings:
SUBPART
C:
MOTIONS, JOINDER AND INTERVENTION
77-73
—2—
Section 103.140
Filing
of Motions and Responses
a)
Unless made orally on the record during
a hearing or
unless
the Hearing Officer directs otherwise,
a motion
shall
be
in writing,
shall state
the reasons for and
grounds upon which
the motion
is made, and may be
accompanied by any affidavits
or other
evidence relied on
and, when appropriate, by
a proposed order.
All written
motions by complainant
to voluntarily dismiss an
enforcement action shall
be accompanied by affidavit
attesting
to the truth of the facts alleged.
b)
Within
7 days after
service of
a written motion,
or
such
other period as the Board
or Hearing Officer may
prescribe,
a party may file
a response
in support of or
in opposition to the motion, accompanied by affidavits or
other evidence.
If no response
is filed,
the parties
shall
be deemed
to have waived
objection
to the granting
of the motion, but such waiver of objection does not bind
the Board
in its determination.
The moving party shall
not have the right
to reply,
except as permitted by the
Hearing Officer
or
the Board.
c)
No oral argument will
be heard
on
a motion before the
Board unless
the Board
so directs.
A written brief may
be
filed with
a motion or
an answer
to
a motion,
stating
the arguments and authorities relied on.
(Source:
Pecodified
at
_____
Ill. Reg.
_______)
Section 103.141
Motions
to Dismiss
a)
All motions preliminary to
a hearing
shall
be presented
to the Board or
to the Hearing Officer at least 14 days
prior
to the date of the hearing,
or on such other date
as the Hearing Officer
or
the Board
shall designate.
All
motions by respondent
to dismiss or strike
the complaint
or challenging
the jurisdiction of the Board shall be
filed within
14 days after
receipt
of complaint, shall
be
directed
to the Board
and shall be disposed of prior
to
hearing
on the complaint, subject, however,
to
subsections
(e)
and
(i).,
Motions by complainant
to
voluntarily dismiss an action against any or all parties
as
to any or
all claims
shall be directed
to the Board
and may be made orally upon
the
hearing record,
or may be
made in writing
at any time prior
to issuance of the
Board’s decision.
All motions must
be served
on all
parties,
including
the Agency and its representative and
the Hearing Officer designated
by the Board, with proof
of
service.
Oral argument on motions before the Board
shall
be permitted only by order
of the
Board.
77-74
—3—
b)
Any party may participate
in the proceedings without
forfeiting any jurisdictional objection,
if such
objection is raised
at or
before the time the respondent
files his initial pleading
or motion, or,
if no pleading
or motion
is made,
within
14
days after
receipt of
complaint.
All jurisdictional objections
shall conform
to the requirements of subsection
(a).
(Source:
Recodified
at
Ill.
Reg.
________
Section 103.142
Disposition of Motions
a)
The Hearing Officer shall rule upon
all motions, except
that he
shall have no authority to dismiss,
or rule upon
a motion
to dismiss or decide
a proceeding on the merits,
or for
failure
to state
a claim, or for want of
jurisdiction,
or
to strike any claim or defense for
insufficiency or want of proof.
The Hearing Officer
shall refer any such motions
to the Board, pursuant
to
paragraph
(a).
Notwithstanding
the provisions
of
paragraph
(a)
above,
the Board
in its discretion, may
direct that hearing
on the proceeding be conducted
and,
in its discretion, may take all motions directed
to
it
with the case.
This conditional
ruling by the Board
shall
not foreclose a party from advancing the same
contentions as
to jurisdiction or adequacy of the
complaint upon the completion of the hearing.
When
ruling
on
a motion by complainant for voluntary dismissal
of
an action the Board
shall,
for reasons stated
in its
Order,~dismiss the action without leave
to reinstate
if
justice
so demands.
Among
the factors
to be considered
in making such a determination are evidence and arguments
concerning
the action’s age and procedural history,
and
the prejudicial
effects,
if any,
of dismissing
the action
with leave
to reinstate.
b)
No interlocutory appeal of
a motion may be taken to
the
Board
from
a ruling of the Hearing Officer,
except by
allowance
of the Board
after motion filed by
a party or
the Hearing Officer.
When in the judgment of the Hearing
Officer prompt decision
is necessary to prevent harm to
the public interest or
to avoid unusual delay or
expense,
the Hearing Officer may refer
the ruling promptly to the
Board
and notify
the parties either by announcement on
the record
or by written notice
if the hearing
is not
in
session.
c)
Rulings of the Hearing Officer may be reviewed
by the
Board after
conclusion of the hearing,
but will
be
set
aside only to
avoid material prejudice
to the rights of
a
litigant.
The Hearing Officer,
if
a member of the Board,
77.75
—4—
may
vote
upon
motions
to
review
his
rulings
as
Hearing
Officer.
d)
Unless
otherwise
provided
herein
or
ordered
by
the
Board,
neither the filing
of
a motion nor
the certification of
a
question
to
the Board
shall stay the proceeding
or extend
the
time
for
the
performance
of
any
act.
Section
103.143
Continuances
a)
A
motion
for
continuance
of
an
enforcement,
variance
or
permit
appeal
proceeding
shall be granted by the Hearing
Officer whenever
as justice may require.
All motions for
continuance
must
be
supported
by
an
affidavit
or
written
motion
before
the
Hearing
Officer
by
the
person
or
persons
having
knowledge
of
the
facts
supporting
the
motion.
Provided,
however,
that
if
the
Board
determines,
in
its
discretion,
that
an
variance
petition,
permit
appeal
or
enforcement case
is
not
proceeding
expeditiously to
a conclusion,
the Board
shall order
such
actions as it deems appropriate
to reach an expeditious
conclusion.
b)
No continuance
shall
be granted
to
the petitioner
for any
variance or permit appeal proceeding unless the deadline
for
final Board
action, whenever applicable,
is extended
by the petitioner
for
a like period,
as
a minimum.
(Source:
Amended
at
Ill.
Reg.
_______,
effective
__________
Section 103.144
Consolidation and Severance of Claims and
Joining Additional Parties
In the interest of convenient,
expeditious,
and complete
determination of claims,
the Board may consolidate
or
sever
enforcement, variance, permit or other adjudicative claims
involving any number of parties, and may order
additional parties
to be brought
in pursuant
to the provisions of
Section
103.121(c)
Section
103.145
Intervention
a)
Upon timely written application and subject
to the
necessity for conducting
an orderly and expeditious
hearing,
the Hearing Officer
shall permit any person
to
intervene in
an enforcement proceeding when either
of the
following conditions is met:
77.76
—5—
1)
The applicant
is so situated that he he may be
adversely affected by a final order
of the Board;
or
2)
An
applicant’s
claim
or
defense
and
the
enforcement
proceeding
involve
a
common
question
of
law
or
fact.
b)
Ten
(10)
copies
of
a
petition
for
intervention
shall
be
filed with the Board
and the applicant
shall also serve
copies on each party.
not later
than 48 hours prior
to
the date set
for
hearing.
The Hearing Officer may
permit intervention
at any time before the beginning of
the hearing when good cause
for delay is shown.
Upon
allowance of intervention the Hearing Officer
shall
notify the parties and the Clerk and may allow
a
continuance
of the hearing
to enable adequate pre—
hearing procedures as justice may require.
c)
An intervenor shall
have all
the rights of an original
party,
except that the intervenor
shall be bound by
orders theretofore issued
and shall
not raise
issues
which actually were raised or were required
to be raised
at an earlier
stage of the proceeding.
d)
Whenever
a proceeding before the Board may affect the
right of the public individually or collectively to
the
use of community sewer
and water
facilities provided by
a municipally owned
or publicly regulated company,
all
persons claiming an
interest shall have the right
to
intervene as parties pursuant to this section and
present evidence of such social
and economic impact.
IT
IS SO ORDERED.
I,
Dorothy
M.
Gunn, Clerk of the Illinois Pollution Control
Board,
hereby certify
at the
above
Order
was
adopted
on
the
IM
day of
__________________,
1987,
by a vote of
________
L~4 )~,
Dorothy
M. ~‘unn,Clerk
Illinois Pollution Control Board
77-77