ILLINOIS POLLUTION CONTROL BOARD
April 30,
1987
)
R82—27
R82—36
Consol.
R83—37
ORDER OF THE BOARD:
(by J. Theodore Meyer):
The
Board hereby adopts the following amendments
to Title
35:
Environmental Protection; Subtitle A:
General Provisions;
Chapter
I:
Pollution Control Board; Part 103.
However, the
Clerk is directed
not to submit these rules for first notice
publication until such time
as the remaining rules
in this
subtitle are similarly adopted.
The rules as hereby amended
follow:
Section
103.101
TITLE 35:
ENVIRONMENTAL PROTECTION
SUBTITLE A:
GENERAL PROVISIONS
CHAPTER
I:
POLLUTION CONTROL BOARD
PART 103
ENFORCEMENT PROCEEDINGS
SUBPART A:
GENERALPROVISIONS
Applicability
SUBPART
13:
COMPLAINT, SERVICE AND
AUTHORIZATION OF HEARING
Section
103.120
103.121
103.122
103.123
103.124
103.125
Who May Initiate
Parties
Notice,
Formal Complaint and Answer
Service
Authorization of hearing
Notice of Hearing
SUBPART
C:
MOTIONS, JOINDER AND INTERVENTION
Filing
of Motions an~Responses
Motions
to Dismiss
Disposition
of Motions
Continuances
IN THE MATTER OF:
PROCEDURAL RULES
Section
103.140
103.141
103. 142
103.143
77-349
—2—
Consolidation and Severance of Claims and Joining
Additional Parties
Intervention
SUBPART D:
DISCOVERY, ADMISSIONS AND
SUBPOENAS
Section
103. 160
103.161
103. 162
103.163
Sect ion
103.180
103.181
103.182
103
.
183
103.184
103
.
185
103.186
Prehearing Conferences
Discovery
Admissions
Subpoenas
SUBPART
E:
SETTLEMENT PROCEDURE
Settlement Procedure
Definitions
Contingent Penalty
Determination
of Compliance
Uncontested Determinations and Order
for Payment
Contested Determinations
Scope
of Board Review
SUBPART
F:
CONDUCT
OF
HEARINGS AND RULES OF EVIDENCE
Section
103.200
103.201
103. 202
103.203
103.204
103.205
103
.
206
103. 207
103.208
103.209
103
.
210
103.211
Authority of Hearing Officer
Authority of Board Members and Board Assistants
Order
of Enforcement Hearings
Conduct of Hearing
Admissible Evidence
Written Narrative Testimony
Official Notice
Viewing of Premises
Admission of Business Records
in Evidence
Examination of Adverse Party or Agent
and Hostile
Witnesses; Compelling Appearance Thereof at Hearing
Amendment ~nd
Ver4ertee
of Pleadinqs
Admissibility of Duplicate Documents
SUBPART G:
POST—HEARING PROCEDURES
Default
Transcript
Record
Briefs and Oral Argument
Contents
of Board Opinions and Orders
103.144
103.145
Section
103. 220
103.221
103.222
103.223
103.224
77-350
—3—
SUBPART H:
RELIEF FROM FINAL ORDERS
Section
103.240
Motion Subsequent to Entry of Final Order
103.241
Relief
from See~4or~i9~~4Final Orders
SUBPART
I:
DECISION IN CASES INVOLVING RCRA PERMITS
Section
103.260
Purpose, Scope
and Applicability
103.261
Interim Order
103.262
Joinder
of Agency
103.263
Draft Permit or Statement
103.264
Stipulated Draft Remedy
103.265
Contents
of Public Notice
103.266
Public Comment
103.267
Hearing
1u3.268
Contents of Board Order
APPENDIX A
Old Rule Numbers Referenced
(Repealed)
AUTHORITY:
Implementing Sections
5,
31,
32 and
33 anã authorized
by Section 26 of the Environmental Protection Act
(Ill.
Rev.
Stat.
1985,
ch. ll~, pars.
1005,
1031,
1032, 1033
and 1026)
SOURCE:
Originally adopted as Chapter
1:
Procedural Rules, Part
III, Enforcement Proceedings,
in R70—4,
at
1 PCB
43, October
~,
1970; amended R80—2,
at 39 PCB 456, at
4
Ill.
Reg.
39, page 285,
effective September
12,
1930;
amended
in R80—18,
at 44 PCB 125,
at
5 Ill.
Reg.
14146, effective December
3,
1981; codified at
6
Ill. Reg.
8357;
amended
in R84—10
at
9 Ill. Reg.
1333, effective
January 16,
1985;
amended
in R82—27, R82—36 and R83—37 at
Ill.
Reg.
________,
effective
_____________________
TITLE 35:
ENVIRONMENTAL PROTECTION
SUBTITLE
A:
GENERAL PROVISIONS
CHAPTER
I:
POLLUTION CONTROL BOARD
PART 103
ENFORCEMENT PROCEEDINGS
SUBPART
A:
~,ENERALPROVISIONS
Section 103.101
Applicability
Tne Rules
in this Part apply
wi’iere
~~ee~e
to proceedings to
adjudicate alleged violations
of the ~
emme~e~Pr
ee~4e~Act
+Ae~+, regulations7 and orders
of the Board.7 per~~eppe~~nd
ver4~eepe
t4ens~ ~3m~eeethe eet’~trery4e e~eer~ytr~dteeted7
e~ refere~eeete ~Part&’ er
eet~et’i&1ere te ~Htrtete
77-351
—4—
?~dn~etret4veeedey T~t~e35~ En~~renittente&Preteet4en~ Per
e~Ie!np~ey~Pert 3O9~~e 35 H~
AdlftT eede 399w end ~6eet~on
35 H~ Adn~-eede 399~9~
(Source:
Amended at
Ill. Req.
_______,
effective
_________)
SUBPART B:
COMPLAINT, SERVICE AND AUTHORIZATION
OF HEARING
Section 103.120
Who May Initiate
An enforcement proceeding may be eoriu~ieneed initiated by any
person.
(Source:
Amended
at
Ill. Reg.
_____,
effective
_________)
Section 103.121
Parties
a)
The person initiating
an enforcement proceeding
shall be
designated the complainant.
Any adverse party shall
be
designated the
respondent.
b)
Misnomer of a party is not a ground
for dismissal;
the
name of any party may be corrected at any time.
C)
If
a complete determination of
a controversy cannot be
had without the presence of other parties,
the Board or
Hearing Officer shall
order them to be bretight
~flT
joined as a party.
If
a person not a party has an
interest which
the order may affect,
the Board or
Hearing Officer may order him te be ~nedejoined as
a
party.
The Board shall provide the joined party with
service of process and copies of all pleadings filed
prior
to the joinder.
Service of process and 8tibeegtient
pleadings shall
be had
as directed
by Seet~en35 Ill.
Adm. Code
103.123.
(Source:
Amended
at
Ill. Reg.
________,
effective
__________)
Section 103.122
Notice, Formal Complaint,
and Answer
a)
An enforcement action shall
be commenced by the service
of
a notice and formal complaint upon all respondents
and
the filing
of
10 copies
of the notice and formal
complaint with the Clerk.
b)
The notice
shall be directed
to the respondents
notifying them of the
filing of the accompanying
complaint and
that they may be required
to attend
a
hearing at
a date set by the Board.
77-352
—5—
c)
The formal complaint shall contain:
1)
A reference to the provision of the Act and
regulations which the respondents are alleged to be
violating;
2)
The dates, location, events,
nature, extent,
duration and strength of discharges or emissions
and consequences alleged
to constitute violations
of the Act and regulations. Phe eemp~e~nte1’~e~
edvtee respondents of the extent end nettire of
ti’te
e~eged~~e~et4ene so as
to reasonably allow
preparation of a defense; end
3)
A concise statement of the relief which the
complainant seeks7;
4)
If the complainant
is the Agency,
such complaint
shall be accompanied by a notification to the
respondent that financing may be available through
the Illinois Environmental Financing Facilities
Act, to correct such violation.
5)
If the complainant
is a citizen, such complaint
shall contain
a verified statement that
it does not
duplicate allegations identical
or substantially
similar
to matters brought
in another forum or
previously brought before the Board.
d)
Respondent mey shall file an answer within
30 days of
receipt of the complaint.
All material allegations of
the complaint shall
be taken as den4ed admitted
if not
specifically ed~rt~tteddenied by the answer,
or
if no
answer
is filed.
Any facts constituting an affirmative
defense which would
be likely to take the complainant by
surprise must be plainly set forth prior
to hearing
in
the answer
or
in
a supplemental
answer filed pursuant
to
eeet4en
3E. Ill. Adm. Code 103.210(b).
(Source:
Amended at
Ill.
Reg.
_______,
effective
__________
Section 103.123
Service
a)
A copy of the notice and complaint shall either be
served personally on the respondent or his authorized
agent,
or shall
be served by registered
or certified
mail
or by messenger service with return receipt signed
by the respondent or h~sthe respondent’s authorized
agent.
Proof of service shall
be made by affidavit of
the person making personal service,
or by properly
executed registered
or certified mail or messenger
service
receipt. Proof of ser~ee of the not4ee end
77-353
—b
—
eompie4~ntand shall
be
filed with the Clerk immediately
upon completion of service.
b)
After notice and complaint, all pleadings, motions and
discovery notices and all other notices shall be served
personally or by First Class United States mail or by
messenger service,. end ~8 Ten copies of pleadings and
motions shall
be filed with the Clerk with proof of
eer~4eean affidavit that service was made in accordance
with this subsection.
Two copies of any discovery
motion, deposition, interrogator~es~,answer
to
interrogator4ee~,notice or subpoena shall
be
filed with
the Clerk with proof of service.
C)
Service by mail
is presumed complete four days after
mailing.
(Source:
Amended at
Ill. Reg.
________,
effective
Section 103.124
Authorization of Hearing
a)
The Clerk shall assign a docket number to each complaint
filed, deposit the complaint and notice
in the Board’s
files,
and distribute copies
to each Board Member.
If
the complaint is filed
by a person other
than the Agency
or DNS,
the Clerk
shall also send
a copy to
the Agency
or DNS. the ?he~rehe3~p~eeethe ~etter en the egende
for Beerd determ4net4on whether the eomp~e~nt~s
dtip~e4totisor fr~vo~otisT~f the Boerd rti~esthet the
eomp~e4nt~s dtip3~e~tousor fr4ve~otis74t she~enter en
order setting fert1’~4ts reesons for so rti~ngend
she~ notify the pert~esof ~t5 dee~e4en~~f the Boerd
rtiies thet the eomp~e4nt~s not dtip~e~tous
or
fr~,e~otie7
this does net pree~tidethe f4~4ngof n~ot4ens
regerd~ngthe ~netiff~e~eneyof the p~eed~nge~
b)
~f Unless the Board rti~eedetermines that the complaint
is net duplicitous or
frivolous,
or
if
the complaint is
filed by the Agency or DNS, the Chairman shall designate
a Hearing Officer and the Clerk shall
notify the parties
of such designation.
The Hearing Officer may be
a
member of the Board
if otherwise qualified.
c)
If the Board determines that the complaint is
duplicitous or
frivolous,
it shall
enter
an order
setting forth
its reason for
so
ruling
and shall notify
the parties of its decision.
Any Board determination
concerning
the duplicitousness
or frivolousness
of the
complaint does not preclude the filing
of motions
regarding the insufficiency of that complaint.
(Source:
Amended
at
____
Ill. Reg.
________,
effective
__________)
77-354
—7—
Section 103.125
Notice of Hearing
a)
The Hearing Officer, after eppropr4ete reasonable
consultation with the parties, shall set a time and
place
for hearing
to be held within 90 days after
the
filing of the complaint unless the Board orders
otherwise.
b)
The hearing shall
be held
in the county in which the
alleged violation occurred or
in such other county as
the Hearing Officer shall
for stated cause designate.
The Clerk shall give notice
of the hearing et ~eeet ~
deys before the heer4ng to:
1)
h~ persons en the Boerd~see4Hng ~4st by not~ee
By publication
in the Boerd~sEnvironmental
Register, or by spee~e~me4~ng~and
2)
Except when the Agency is complainant,
at least
21
days before
the hearing by public advertisement
in
a newspaper
of general circulation in the county
in
which the cause of action arose.
c)
The Hearing Officer shall give notice of the hearing, at
least
21
days before the hearing, to the parties
in
accordance with Seet~on35 Ill. Adm. Code 103.123(b).
d)
The Agency, when complainant, shall give notice of each
complaint and hearing
at least 21 days before the
hearing to:
1)
Any person who has complained
to the Agency with
respect to respondent within six months preceding
the date of the complaint;
2)
Any person
in the county
in which the alleged
offending activity occurred who has requested
notice of enforcement proceedings;
3)
The public,
by public advertisement in
a newspaper
of general circulation
in the county in which the
cause of action arose; and
4)
Such other persons as required by law.
e)
Failure
to comply with the provisions of this section
may not be used as a defense
to an enforcement action,
but any person adversely affected by such failure of
compliance may upon motion
to the Hearing Officer have
the hearing postponed
if prejudice
is shown.
f)
Whenever a proceeding before the Board may affect the
right of the public individually or collectively to the
77.355
use of community sewer
or water
facilities provided by
a
municipally owned
or publicly regulated company, the
Board shall at least 30 days prior to the scheduled date
of the
first hearing
in such proceeding, give notice of
the date,
time, place and purpose of such hearing by
public advertisement
in a newspaper of general
circulation
in the area of the State concerned.
(Source:
Amended at
Ill.
Reg.
_______,
effective
_________)
SUBPART C:
MOTIONS, JOINDER AND INTERVENTION
Section 103.140
Filing of Motions and Responses
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
unless otherwise
allowed by the Board or Hearing Officer.
Unless made
orally on the record during a hearing or
unless the
Hearing Officer directs otherwise,
a motion shall
be
in
writing,
shall clearly designate whether
a
ruling is
requested from the Hearing Officer
or
the Board,
shall
state the reasons
for and grounds upon which the motion
is made,
and mey shall
be accompanied by any affidavits
or other evidence relied on and, when appropriate, by a
proposed order.
~
wr~ttenmot~onsby eemp~e~nentto
ve1~nter~yd~sm~ssen enforeei~entaeHen she~ be
eeeompen~edby eff~da,4tettest~ngto the trtith of the
feets e~eged.All motions must be served on all
parties,
including
the Hearing Officer, with proof of
service
in accordance with 35 Ill. Adm. Code 103.123(b).
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 oOral argument
wi3~
be
heard
on a motion may be
permitted before the Board,
at its discretion tin~essthe
Board so d4reets-
A written brief may be filed with
a
motion or an answer
to a motion,
stating the arguments
and authorities relied
on.
(Source:
Amended at
______
Ill.
Reg.
,
effective
__________
Section 103.141
Motions to Dismiss
77-356
—9—
a)
M~ motions pre3~m~naryto a hearing sha~ be presented
to the Board or to the Hear~ngOffteer at ~eeet
~4
days
pr4or to the date of the heer4ng7 or on etieh other date
as the Heer4~ngeff~eeror the Board ehe~des~gnate7
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,
unless otherwise allowed by the Board. she3~
be d4reeted to the Board end ehe~be d~spesedef pr4or
to heer~ngon the eomp~e~ntystib~eet7however~to
stibseet~ons~fe+and
~
Mot~ensby eomp~e~rtantto
vo~tinter~yd4sm~sean aet~onaga~nstany or a~
as to any or aH e~a~meshe~be d~reetedto the Board
and may be made era4~ytipen the heer~ngreeord~or may
be made ~n wr4t4ng at any t~mepr4or to 4estianee of the
Beard.Ls dee4etort7 A~ mot~onsatist be served en a~
parttes7 ~ne~ttd~ngthe Agency end ~ts representet4ve and
the Heer~ng8ff~eerdeMgnated by the Board7 w~thproof
of serv~ee7 Ore~ergtiment on mot~onsbefore the Board
ehe3~be perm~ttedoniy by order of the Boerd~
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 the
complaint.
?t~
~tir~sd4et4ona3ob~eet4ensshe~conform
to the reqti~rementsof stibseet4en ~a+7
C)
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 at any time
prior
to issuance of
the Board’s decision.
All written
motions b~’complainant to voluntarily dismiss an
enforcement action shall
be accompanied by an affidavit
attesting to
the
truth of the
facts alleged.
(Source: Amended
at
Ill. Reg.
________,
effective
Section 103.142
Disposition of Motions
a)
The Hearing Officer
shall rule upon all motions, except
that he shall have no authority to d~sm4se7or rule upon
a any motion
to dismiss,
or
to decide
a proceeding
on
the merits,
or for fa4~tireto state a e3e4my or for went
of ~ttr~sd4et~on,or
to strike any claim or defense
for
insufficiency or want of proof.
The Hearing Officer
shall
refer
any such motions
to the Board.
ptirstient to
paragraph ~e~-
Netw~th5tartd4ng the prov4s~onsof
paragraph *e3 above7 tThe Board,
in its discretion, may
direct that hearing
on the proceeding
be conducted and,
~n 4ts d4seret4eri~may take
all motions directeó
to it
77-357
—10—
with the case.
This conditional
ruling by the Board
shall not foreclose a party from advancing the same
contentions as to jur~sd~et4enor adeq~aeyof the
comp~a4ntupon the completion of the hearing.
When
rti3~ngon a metion by eemp~a~nantfor vo~tintary
d~snt~ssa~
of an aet4on the Board sha3.~7for reasons
stated 4n 4ts erder7 d~sm~esthe eet~onw~thotit‘eave to
re~nstate~f jtist~eeso demandeT
Ameng the factors to
be eons~dered4n mahtng stich a determ4net~onare
ev’4denee and argtiments eoneern~ngthe aet~on~sage end
proeedtira3 h’~story7and the pre tid~e4a~effeete7 4f any~
of &~em~se4ng
the aetton wtth ‘eave to re4nstete~
b)
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.
cb)
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 dee~s~onimmediate appeal of any
order
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.
de)
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, may vote upon motions
to review his rulings
as
Hearing Officer.
ed)
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.
(Source:
Amended
at
Ill. Reg.
_____,
effective
__________
Section 103.143
Continuances
a)
A motion for continuance of an enforcement, var4anee or
permit eppea~proceeding shaH may be granted
by the
Hearing Officer whenever as
Justice may
require.
All
77-358
—11—
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 vartanee
petttor17 perm~tappea’ 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 eont~nueneeshaH be granted to the pet~t4enerfor
any ver~aneeor permit appea’ proeeed~ng~n~ese the
deadHne for f~na~Board aetton7 whenever eppHeab~e74s
extended by the pet~t4onerfor a Hke per~ed7as a
(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 l03.l4~5
Intervention
a)
Upon timely wr4tten 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:
1)
The applicant
is so situated that he the applicant
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 ~ater then 45 het~rsprier to
the date set for heer~ng~The Hearing Office.r may permit
intervention at any time before the beg~nMngof the
heer~ngwhen good
cause
for delay
is shown.
Upon
allowance of intervention the Hearing Officer shall
notify the parties and the Clerk and may allow
a
77.359
—12—
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 previously 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.
SUBPART
D:
DISCOVERY, ADMISSIONS AND SUBPOENAS
Section 103.160
Pre—hearing Conferences
a)
Upon wr~ttennot~eeby the Hearing Officer’s own motion,
or upon motion by a party,
the Hearing Officer may, upon
written notice, direct the 4n an preeeed~ng7parties or
their attorneys may be d4reeted to appear at
a specified
time and place
for
a conference, prior
to or during the
course of hearing
for the purposes of:
1)
Simplifying
the issues;
2)
Amending
the pleadings for clarification,
amplification, or limitation;
3)
Making admissions of facts or stipulating
to the
admissibility of any matters to expedite the
hearing;
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)
Action taken at the pre—hearing conference shall
be
noted
in the hearing record by the Hearing Officer,
unless the parties enter upon written stipulation as
to
such matters7. or agree to a statement 4n another
appropr~etertiHng~
(Source:
Amended at
111.
Reg.
_______,
effective
77.360
—13—
Section 103.161
Discovery
a)
Regarding any matter not privileged,
the Bearing Officer
shall have the authority to order discovery upon the
written request of any party when parties cannot agree
to the legitimate
scope of discovery.
The
Hearing
Officer
shall
set
a schedule
for
the orderly submission
of
discovery
and
shall
file
a
copy of the schedule with
the Clerk.
It
is not a ground for objection that the
testimony will be inadmissible at hearing
if the
information sought appears reasonably calculated
to lead
to the discovery of admissible evidence or
is relevant
to the subject matter
involved
in the pending action.
The
Hearing
Officer
shall
order:
1)
The
production
of the identity and location of
persons
having
knowledge
of
relevant
facts.
2)
The
taking
of the deposition of any witness
including expert witnesses expected
to testify at
the hearing.
3)
The
taking of the interrogatory of any party.
4)
The production of evidence under the control or
possession of any party for the purposes of
inspection
and where necessary for purposes of
copying
or duplication.
This shall include
the
right of reasonable inspection of premises of any
party.
b)
The Hearing Officer may at any time on his own
initiative,
or on motion of any party or witness, make
a
protective order
as justice requires, denying, limiting,
conditioning
or regulating discovery to prevent
unreasonable aelay, expense, harassment,
or oppression,
or
to protect materials from disclosure by the party
obtaining such materials consistent with the provisions
of Sections
7 and 7.1
of the Act and 35 Ill. Adm. Code
101.107 and 120.
c)
All depositions and interrogatories taken pursuant
to
this section shall be
for purposes of discovery only,
except as herein provided.
Depositions and
interrogatories may be used for the following purposes:
of
1)
~Impeachment of
the testimony of the deposed
or
interrogated person
end as or
2)
eAdrnissions
of the deposed
or interrogated person;
or~-
77.361
—14—
3)
Upon
application
to
the Hearing Officer either
before
or
after
the
taking
of
such deposition or
interrogatories
and
upon
a
showing
at
the
time
of
the
hearing
that
the
person
deposed
or
interrogated
will not be available to participate
in the hearing
because of death,
age, sickness,
infirmity, absence
from the country or other exceptional
circumstances, the Hearing Officer may order that
the
deposition
or
interrogatories
be
used
as
evidence
in
the
hearing.
d)
Upon
transcription
of
the
deposition,
it
shall
be
made
available
to
the
deponent
for
examination,
unless
his
signature
is
waived
by
him
and
by
the
parties
who
are
represented
at
the
deposition.
Any
changes
in
form
or
substance
which
the
deponent desires
to make shall be
entered upon the deposition by the Hearing Officer with
a
statement of the
reasons given by the deponent making
them.
The deposition shall then be signed by the
deponent unless he
is ill
or cannot be found
or refuses
to
sign,
in which event the Hearing Officer’s
certificate shall
state
the reason for the omission of
the signature.
e)
In addition
to the limitations
in
(c)
above, Aa party at
hearing may exclude by objection those portions of any
deposition which contain evidence that would
be excluded
if the witness were testifying
in person.
f)
All objections to rulings of the Hearing Officer shall
be made
in the record.
When,
in the judgment of the
Hearing Officer
prompt decision by the Board
is
necessary the Hearing Officer may request the Board to
rule on the objection.
The Board shall grant or deny
the objection or
in its discretion rule that
the Hearing
Officer’s ruling
be conditionally upheld and
take the
objection with the case.
Any rtiHng by the Board to
grant or deny the ob~eet4onsor to eend~t4oneHytipho~d
the rtiHng of the Heer~ngeff~eershaH not reHeve the
ob~eet4ngparty of otherwise eomp~y4ngw4th the
regti4rentents of Seet~en a4~+e~
g)
StibaSection ~6~~46*b+7
+0+7
*d+7 *e+7 ~g+,’+h+ end +4+
103.142 shall apply regarding procedures
for ruling on
objections.
h)
Failure
to comply with any ruling shall
subject the
persons
to sanctions under
Part ~
35 Ill. Adm. Code
109.
(Source:
Amended at
Ill. Reg.
________,
effective
Section l03.1b2
Admissions
77-362
—is-
a)
Request
for
Admission
of
Fact.
A party may serve on any
other
par ty~ no
sooner
then
~
days
after
f4Hng
of
the
eomp~e~nt7a
written
request
for
the
admission
by
the
fatter of the
truth of
any
specified
relevant
fact
set
forth
in the request.
b)
Request for Admission of Genuineness of Document.
A
party may serve on any other partyy no sooner than ~
days after fH4ng of the eomp~a4nt~
a written request
for admission of the genuineness of any relevant
documents described in the request.
Copies of the
document shall
be
served with the request unless copies
have already been furnished.
C)
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 ~928
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
remainoer of the request shall
be answered within the
period designated
in the request.
A denial shall
fairly
meet the substance of the requested admission.
If good
faith requires that
a party deny only a part,
or
requires qualification,
of a matter of which an
admission
is requested, he shall specify so much of
it
as is true and deny only the remainder.
Any objection
to
a request or
to
an answer shall
be heard
by the
Hearing Officer
upon prompt notice and motion of the
party making
the request.
d)
Effect of Admission.
Any admission made by a party
pursuant
to request under
this section
is for
the
purpose of the pending action only.
It does not
constitute
an admission by h4m the party for
any other
purpose and may not be used against h4m the party
in any
other proceeding.
e)
Expenses
of
Refusal
to
Admit.
If
a
party,
after
being
served with
a request to admit the genuineness of any
documents or the
truth
of any matters of fact,
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,
he may
apply to
the Board
for
an order
under Part 39~35
Ill.
Adm. Code 109.
77-363
—16—
(Source:
Amended
at
Ill. Reg.
________,
effective
Section 103.163
Subpoenas
a)
Bpon t4me~ymot4on to the Board by any partyT or on
met4on of the Hear4ng eff4eer or the Beardy tThe Hearing
Officer or
the Board shall
issue a subpoena for
attendance at a deposition or
a hearing upon written
motion by any party.
The subpoena may include
a command
to produce evidence reasonably necessary to resolution
of the matter under consideration, subject to the
limitations on discovery prescribed by this ehepter
Part.
A copy of the subpoena shall be served upon the
Clerk for Board files.
If the witness
is
a non—resident
of the state,
the order may provide such terms and
conditions
in connection with his appearance
at the
hearing as are just,
including payment of his reasonable
expenses.
b)
Every subpoena shall state
the title of the action and
shall command each person
to whom it
is directed to
attend
and give testimony at the
time and place therein
specified.
c)
The Hearing Officer
or
the Board, upon motion made
promptly and in any event
at or before the time
specified
in the subpoena for compliance therewith,
may
quash or modify the subpoena if
it
is unreasonable and
oppressive.
d)
Failure of any witness
to comply with
a Board subpoena
shall subject the witness to sanctions under Part ~
35
Ill Adm. Code 109.
(Source:
Amended
at
Ill.
Reg.
_______,
effective
_________
SUBPART E:
SETTLEMENT PROCEDURE
Section
103.180
Settlement
Procedure
a)
No case pending before the Board shall
be disposed of or
modified without an order
of the Board.
All parties
to
any case
in which
a settlement
or compromise is proposed
shall
file with the Hearing Officer at the time of
the
scheduled hearing
a written statement,
signed by the
parties or
their authorized representatives, outlining
the nature of,
the reasons for, and the purpose
to be
accomplished by the
settlement.
Such statement shall
contain:
77-364
—17—
1)
A
full stipulation of all material facts
pertaining
to the nature,
extent and causes of the
alleged violations;
2)
The nature of the relevant parties’
operations and
control equipment;
3)
Any
explanation
for
past
failures
to
comply
and
an
assessment
of
the
impact
on
the
public
resulting
from such noncompliance;
4)
Details
as
to
future
plans
for
compliance,
including
a description
of additional control
measures
and
the
dates
for
their
implementation;
5)
The proposed penalty with an explanation as
to how
the penalty figure was reached.
b)
When the parties submit a proposed settlement or
stipulation to
the Hearing Officer, the Hearing Officer
shall conduct
a hearing
in which all interested
persons
may testify with respect to the
nature of the
alleged violation and its impact on the environment,
together with their views on the proposed stipulation
and settlement.
The Hearing Officer shall transmit such
record
of hearing
to the Board,
together with all
exhibits.
c)
The Board
shall consider
such proposed settlement and
stipulation and the hearing
record.
The Board may
accept, suggest revisions
in,
reject the proposed
settlement and stipulation, or direct further hearings
as
it appears appropriate.
Where an NPBBS +Net4ona~
PeHutant B4eeharge EHm4net4on
System-) perm4t 4s
4nvo~,ed4n the setHementy not4ee of hear4ng shaH be
p~bHshed4n the Env4ronmenta~Reg4ster at ~eest ~
days
pr4er to st~ehhear4ng7
d)
If the Board determines that a settlement involves or
may involve the
issuance or modification of a RCRA
permit
it will enter
an interim order pursuant
to
Section 103.261.
(Source:
Amended
at
Ill.
keg.
,
effective
____________)
Section 103.181
Definitions
As used
in 35
Ill.
Adrn.
Code 103.182 through 103.l~6, the
following
terms mean:
a)
Approval:
A finding by the Agency that the Responuent’s
written statement
has established
that it has performed
77-365
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H
—19—
A compliance date for each compliance item subject
to the contingent penalty.
3)
That the Respondent shall file a written statement
with the Agency, which shall establish the
performance or achievement
of the compliance
item
on
or
before
the
compliance
date,
within
fourteen
days after each compliance date set forth in
subsection(c) (2).
4)
In the case of
a per diem contingent penalty,
that
the Respondent
shall
file
a written statement with
the Agency, which shall establish the performance
of
or achievement of
the compliance item and the
date upon which the compliance
item was performed
or
achieved,
within
fourteen
days
of
the
issuance
date
of
a request by the Agency for such
statement.
The Agency may request the
filing of
such statement at any time following the compliance
date.
5)
The identity and location of
the Agency unit which
is
to receive the Respondent’s written statement.
(Source:
Added
at
Ill. Reg.
________,
effective
__________)
Section
103.183
Determination of Compliance
a)
Within sixty days
of the
filing date
of
the
written
statement
required
pursuant
to
35 Ill. Adm. Code
l03.l82(c)(3)
or
(c)(4)
the Agency
shall
issue
a written
determination
providing
an approval
or disapproval
of
the
written statement.
In
the event that the Agency’s
written determination
constitutes
a disapproval,
the
written determination
shall
contain
a statement
of
reasons
and
a statement
of
tne penalty amount
payable
as
of
the
date
the
written determination
is issued,
as
calculated
in accordance
with the
provisions
of
the
written settlement.
b)
In
the event that the Respondent does not timely file
the statement required by 35
Ill.
Adm. Code
103.l82(c)(3) or
(c)(4),
the Agency shall
issue
its
written determination pursuant
to
subsection(a) within
sixty days
following
the compliance date.
(Source:
Added
at
Ill.
Reg.
________,
effective
__________
Section 103.184
Uncontested Determinations and Order
for
Payment
77-367
—20—
a)
No less than thirty—five days following the issuance
of
the Agency’s determination of disapproval pursuant
to
35
Ill. Adm. Code 103.183(a),
and
in the event that the
Respondent
has not filed a timely petition
for review
pursuant
to 35 Ill. Adm. Code 103.185,
the Agency shall
submit
to the Board a written request
that it issue an
order
for payment
of the contingent penalty in the
amount stated
in the Agency’s written determination.
This submission
shall also contain a copy of the
Respondent’s written statement and the Agency’s written
determination.
b)
The Board
shall order
the payment of the contingent
penalty upon a finding that the procedural requirements
of 35
Ill. Adm. Code 103.183 and 103.184(a)
have been
complied with by the Agency.
(Source:
Added
at
Ill.
Reg.
effective
__________)
Section 103.185
Contested Determinations
a)
In case of
a disapproval
to which the Respondent
objects,
a Respondent who seeks
to appeal
the Agency
determination shall
file
a petition
for hearing before
the Board within thirty—five days
of
the
issuance date
of
the Agency’s written determination.
b)
The petition shall
include:
1)
A citation of the particular compliance
item which
is
the subject
of
the appeal
2)
A complete and precise description of the facility,
equipment, vehicle, vessel,
or aircraft which was
the subject
of the compliance
item,
including
its
location
3)
Such other materials as may
be necessary to
demonstrate
the performance
or achievement of the
compliance
item;
and
4)
The
date
of
compliance.
c)
The method of filing service shall
be
in accordance with
35
Ill.
Adm. Code 103.122 and 103.123.
d)
The Agency shall
appear
and shall,
within fourteen days,
upon notice
of the petition, file with tne Board
the
entire Agency record
of the written determination,
including:
77.368
—21—
1)
The Respondent’s statement made pursuant to
35 Ill.
Adm. Code l03.l82(c)(4).
2)
Correspondence
with
the
Respondent.
3)
The Agency’s written determination made pursuant
to
35 Ill.
Adm. Code 103.183(a)
or
(b).
~
Agency documents relevant to the question of
whether
the Respondent achieved or performed
the
compliance item on
or before the compliance date.
5)
Proof of service upon respondent.
e)
The proceedings shall be
in accordance with the rules
set forth
in this Part.
(Source:
Added
at
Ill.
Reg.
_______,
effective
_________)
Section 103.186
Scope of Board Review
a)
The Board
shall
rule upon whether the Respondent
established that it performed
or achieved the compliance
item on or before the compliance date
or established any
defenses.
The Respondent shall have tue burden of
proof.
b)
The decision
of the Board
shall be based exclusively on
the record before the Agency and
the record
of the
hearing before
the Board,
if any,
unless the parties
agree
to supplement
the record.
c)
Should
the Board uphold
tne Agency’s written
determination,
the Board may order
the payment of a
penalty based upon
the evidence
in
the
record.
The
contingent penalty specified
in
the Agency’s written
determination
shall
be
presumed
fair and reasonable.
(Source:
Added
at
Ill.
Reg.
_______,
effective
_________
SUBPART
F:
CONDUCT OF HEARINGS AND RULES OF EVIDENCE
Section 103.200
Authority of Hearing Officer
The Hearing Officer shall have the duty to conduct a
fair
hearing,
to take
all necessary action to avoid delay,
to maintain
order,
and to ensure development of a clear and complete
record.
He in addition
to
the
powers enumerated
in
35
Ill.
Adm.
Code
103.160
and
l~J3.1bl,9the
Hearing Officer
shall have all
77.369
—22—
powers necessary to these ends including
(but not limited to)
the
authority
to:
~59~e
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b-~
R~e upon ob~eet~one~e d~eeo~ery
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e~
Mehe et~thpretee’b~veerder5 me j~et~eereq~reey
denytrtg7 ~tmtttt~gy eond4
erth~gor regt~
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be prevertt t2nreaeenab~eâe~my7e~peneeThermeemenby or
eppreee~en~or to probeeb meter~e~efrom d
e~ee~reby
the pmrty eb e4~n4i~ge~ehmeter~e’~et
~+
Head pre-heer~ngeenfereneee for eetb~emertb7
e~~eab~ertof the
5e~eeyor er~yother proper
p~rpeeeet
ae)
Administer oaths
and affirmations;
bf)
Rule upon offers of proof
and receive evidence and rule
upon objections to the
introduction of evidence; eub~eeb
‘be
See’b-~on
~~93t
c~)
Regulate
the course
of the hearings and
the conduct of
the parties and their counsel;
dh)
Examine witnesses
for the
sole purpose of clarifying
the
record established by the parties
at the hearing.
When
any party is not represented by counsel, the hearing
Officer may examine and cross examine any witness to
insure
a clear
and complete record.
However, the
Hearing Officer may not exclude exhibits
or other
testimony as
a result of his examination unless all
parties so agree;
e4)
Except
as otherwise provided
in 35
Iii.
Adro.
Code
103.142,
consider and rule me
eHee mey re~~reupon
motions. mpprepr4ebe
‘be en ed
d4eet-~vepreeeed~ng
Section 103.201
Authority
of Board Members and Board
Assistants
Any Board Member
or assistant
to the Board who
is an attorney
licensed
to practice
in Illinois present at the hearing may
advise the Hearing Officer
and may interrogate witnesses but
shall not have the
authority
to rule on objections
or motions
or
to overrule the Hearing Officer during the hearing.
Section
103.202
Order
of Enforcement Hearings
The following shall
be the order
of all enforcement hearings,
subject
to modification by the Hearing Officer
for good
cause:
77.370
—23—
a)
Presentation, argument, and disposition of motions
preliminary to
a hearing;
en the mer4te of the matbere
re~sed~n
the
eemp~e~nb
b)
Presentation of opening statements;
c)
Complainant’s case
in chief;
d)
Respondent’s case
in chief
e)
Complainant’s case in rebuttal;
f)
Statements from interested citizens, as at~’bhor~ed
by
the
Heer~ngeff4eer provided by 35
Ill. Adm. Code
103.203
g)
Complainant’s epen4rtg closing argument, which may
include legal argument;
h)
Respondent’s closing argument, which may include legal
argument;
i)
Complainant’s
e~oe~ngrebuttal argument, which may
include legal argument;
j)
Presentation
and argument
of
all motions prior
to
submission of
the transcript
to the Board;
and
k)
A schedule for submission of briefs
to the Board.
(Source:
Amended at 11
Ill. Reg.
_______,
effective
___________
Section 103.203
Conduct
of Hearing
a)
All hearings under
this
Part
shall
be public7.
end The
Hearing Officer shall permit any person not a party and
not otherwise
a witness
for
a party may
to submit
written statements or reasonable oral testimony relevant
to
the subject matter
of tne hearing.
Any person
submitting such a statement
or testimony shall
be
subject
to cross—examination by any party.
If such
person
is not available for cross—examination upon
timely request,
the written statement or
testimony may
be stricken from the
record. The Heer4n~êff~eereheH
perm4’b any pereen be offer reeeenmb~eere~te5b~meny
whether or nob a party
be the preeeed~rige7
b)
All witnesses
shall be sworn.
c)
Whenever
a proceeding before
the Board may affect the
right
of
the public individually or collectively to the
use of community sewer
or water
facilities provided
by
a
77-37 1
—24—
municipally owned
or publicly regulated company,
evidence of any social
and economic impact which would
result from restriction or
denial of the right
to use
such facilities
shall be admissible
in such
proceeding.
The Hearing Officer shall allow all persons
claiming
an interest
to intervene as parties pursuant to
Section 103.l4~5and to present evidence of such social
and economic impact.
d)
Upon the conclusion
of the hearing,
the Hearing Officer
shall make a statement as
to the credibility of the
witnesses.
This statement shall be based upon h~ethe
Hearin~Officer’s legal judgment and experience and
shall indicate whether he the Hearing Officer finds
credibility to
be at
issue
in the case and
if so,
the
reasons why.
This statement shall
become
a part of
the
official record and
shall be transmitted by the Hearing
Officer
to each of the parties in the case.
No other
statement shall be made or be appropriate unless
otherwise ordered by tne board.
(Source:
Amended at
Ill. Reg.
______,
effective
__________)
Section 103.204
Admissible Evidence
a)
The Hearing Officer shall receive evidence which
is
admissible
under
the rules
of evidence as applied
in
the
courts
of Illinois pertaining
to civil actions except as
these
rules otherwise provide.
The Hearing Officer may
receive evidence which
is material, relevant and would
be
relied upon by reasonably prudent persons
in the
conduct of serious affairs provided that the rules
relating
to privileged communications and privileged
topics
shall be observed.
b)
When the admissibility of evidence depends upon
an
arguable interpretation of substantive law,
the Hearing
Officer
shall
admit such evidence.
c)
open et~p~at~en
of the part-~ee7bThe Hearing Officer
may order
the record of any relevant prior proceeding
before
the Board
or part thereof incorporated into
the
record
of the present proceeding provided
that the party
requesting such incorporation has provided the Hearing
Officer
or Clerk with copies of
the record
or partial
record
to
be incorporated. Aeeerd-~ng~yythe Heer~n~
9ff 4eer eheH d-~reetthe Q~ethto phye~ee~y~neorperete
the entire
or eppropr4ate
pert~eneof the record
eenet4tut5~nge~ehprior preeeed~n~~nte the p-recent
preeeed4ng7
d)
Relevant scientific
or technical articles,
treatises or
materials may be introduced
into evidence subject to
77-372
—25—
refutation or disputation through any introduction of
comparable documentary evidence or expert testimony.
(Source:
Amended
at
Ill.
Reg.
_______,
effective
_________)
Section 103.205
Written Narrative Testimony
Written narrative testimony may be introduced by a party
in a
hearing only if provided
to all other parties of
record at least
5 days prior
to the date
of the hearing
and only if actually read
into the record by the witness so testifying who shall be subject
to cross examination. and on~yafter tThe opposing parties
have
may had an eppor’bt~n4’bybe object
to all
or portions
of the
written
testimony and to obtain
a ruling
on said objections prior
to its introduction at hearing. The pe~reenwhose beha~fthe
tect~4meny~s e~bm-~ttedche~ be ave~ab~eat heer~rtgfor cross-
e,tmm4net~en--
(Source:
Amended
at
Ill. Reg.
________,
effective
Section 103.206
Official Notice
Official notice may be taken of all facts
of which judicial
notice may be taken and
of other
facts within the specialized
knowledge and experience
of the Board.
Section 103.207
Viewing
of Premises
Upon motion
of any party
or
upon the Hearing Officer’s own
motion,
the hearing Officer and any Board Members p-recent may
view the premises
in question to establish a more comprehensive
record
but
no such viewing by less than the whole
Board
shall
be
made
if any party objects.
No stenographic record need be taken
of what transpires
at
the viewing.
(Source:
Amended
at
Ill.
Reg.
_______,
effective
___________)
Section 103.206
Admission of Business Records
in Evidence
Any 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,
shall 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 any business, provided
it was the regular
course of
the business
to make such a memorandum or record at the
time
of such an act, transaction, occurrence,
or event or within
a reasonable
time thereafter.
All other circumstances of the
making
of the writing
or record,
including
lack of personal
knowledge by the entrant or maker, may be shown
to affect
its
weight, but shall
not affect
its admissibility.
The term
“business,”
as used
in this
rule,
includes business, profession,
occupation,
and calling
of every
kind.
77-373
—26—
Section
103.209
Examination
of
Adverse
Party
or
Agent
and Hostile Witnesses; Compelling Appearance
Thereof
at
Hearing
a)
Upon
the
hearing
of
any
action,
any
party
thereto,
or
any
person
for
whose
immediate
benefit
the
action
is
prosecuted or defended,
or the officers, directors,
managing agents or foreman of any party to the action,
may
be
called
and
examined
as
if
under
cross—examination
at
the
instance
of
any
adverse
party.
The
party
calling
for
the examination may rebut the testimony given by
counter testimony and may impeach the witness by proof
of
prior inconsistent statements.
b)
If the Hearing Officer determines that a witness is
hostile
or unwilling,
the witness may
be examined by the
party calling him as
if under cross—examination.
c)
The party calling
an occurrence witness,
upon
the
a
showing that he called
the witness
in good faith and
is
surprised by his testimony,
may impeach the witness
by
proof of prior
inconsistent statements.
d)
The appearance
at the hearing of
a party or
a person who
at the time of the hearing
is an officer, director or
employee of
a party may be required by serving
the party
with
a notice designating
the person who
is required
to
appear.
If the party or person
is a non—resident of the
State,
the Hearing Officer
shall provide by order such
terms and conditions
in connection with his appearance
at the hearing as
are just,
including payment of his
reasonable expenses.
The notice also may require
production at the hearing of documents or tangible
things.
(Source:
Amended
at
Ill. Reg.
_______,
effective
Section 103.210
Amendment end Ver4enee of Pleadings
a)
Subject to subsection(b)
~-
proof may depart from
pleadings
and pleadings may be amended to conform to
proof,
so long
as
no undue surprise results that cannot
be remedied by
a continuance.
b)
?~tany t4me pr-~erto
commencement of hear-~ng
-and
pri~or
to
the
c~ose of
hear~n~7tThe
Hearing Officer may upon
motion of
a party permit a supplemental pleading setting
forth continuing transactions
or occurrences
which have
continued
or occurred subsequent
to the date of the
filing of the
initial pleading
or any amendment thereto,
so long as
no undue surprise results that cannot be
remedied
by
a continuance. Supplemental pleadings shall
77-374
—27—
be
filed
with the parties, the Board and
the Hearing
Officer prior
to the close
of hearing.
(Source:
Amended
at
Ill. Reg.
_____,
effective
___________
Section 103.211
Admissibility of Duplicate Documents
A duplicate document
is admissable
to the same extent as an
original document unless
a genuine question
is raised
as
to the
authenticity of the original document.
(Source:
Added at
Ill. Reg.
_______,
effective
___________
SUBPART G:
POST-HEARING PROCEDURES
Section 103.220
Default
Failure
of
a party to appear on the date set for hearing
or
failure
to proceed
as ordered by the Board
shall constitute
a
default.
The Board
shall thereafter
enter such final
order
or
make such final determination as
it
shall
deem
appropriate
under
the circumstances.~-as 34m4bed by the p-3eed~ngs
arid
based upon
the
e,4dence
~ntreduced
at
the
hear~ng7
(Source:
Amended
at
Ill.
Reg.
________,
effective
__________
Section 103.221
Transcript
a)
The Board shaH will provide for or arrange a court
reporter who shall
transcribe the entire hearing. Seven
~
coptes7 of wh-~ehone
(-~)-
must be en er~g~nm~i
of the
trenser~ptshaH be f~edw4~ththe Beard w-~th~n
~?
days
feHow~rtgthe c~eseof the hear~ng7
b)
Any party or witness may correct the transcript,
as
provided
in Section
102.164.
(Source:
Amended at
_____
Ill.
Reg.
______,
effective
_________
Section
103.222
Record
The transcript of
the hearing approved by the Hearing Officer,
the pleadings,
the briefs, written statements by the public
in
conformance with
35
Ill. Adm.
Code 103.203,
and all exhibits
shall
constitute
the record. The e~e-rkshaH certify the record
to the Beard when
~‘b
4s comp~ete~-
(Source:
Amended
at
Ill.
Reg.
_______,
effective
77-375
—28—
Section 103.223
Briefs and Oral Argument
The parties may submit briefs
to the Board w~th4~n~4 days after
receipt of f-ina3 transer4pts ~n Board eff~cesor such other
remsoneb~et~i~teas
in accordance with
a briefing schedule set by
the Hearing Officer shaH determ-~newhich shall
be consistent
with the Board’s responsibility for expeditious decision,
and the
needs of the part~esunder Seet~on~
Upon request at
the t4me of the subm-~ee~oriof br4efs motion by
a party
or on its
own motion,
the Board may permit oral argument by the parties
before
the whole Board.
(Source:
Amended
at
______
Ill. Reg.
_______,
effective
___________
Section
103.224
Contents
of
Board
Opinions
and
Orders
The Board
shall prepare
a written opinion and order
for
all final
determinations which shall
include:
a)
Findings of fact
(with specific page references
to
principal supporting
items of evidence
in the record)
and conclusions
of law (supported
by adequate
reasoning)
on all material issues.
b)
The final order
or determination of the Board.
The
Board Order may include any or all of
the following:
1)
A direction to cease
and desist from violations of
the Act or of the Board’s rules and regulations;
2)
The imposition of money penalties
in such amounts
as appropriate
in each case;
3-3-
The
g-rerit7
deMe~7or revoeat4en of a var-~aneet
4-3-
The gent7 den~e~7or reveeat~onof a perm4ti-
35)
The posting of sufficient performance bond or other
security as provided by the Act to assure the
correction of such violation within
the time
prescribed;
and
46
Such other
order
that may be appropriate.
c)
The Clerk
shall publish the order
and opinion with the
vote of each Board Member recorded and shall
notify the
parties required
to be notified of the hearing from
which
the
order
arose
of such order
and opinion.
(Source:
Amended
at
Ill. Reg.
,
effective
___________
77-376
—29—
SUBPART
H:
RELIEF FROM FINAL ORDERS
Section 103.240
Motion Subsequent to Entry of Final Order
Within 35 days after the adoption of
a final order, any party may
file a motion for rehear-~ngreconsideration or modification of
the order or
to vacate the order or for other relief.
Response
to said motion shall
be filed within
14 days from the filing
thereof.
A motion filed within 35 days stays enforcement of the
final order
until final disposition of such motion, and bThe time
for appeal from such order runs anew after
the Board rules upon
the motion.
Failure
of a party to appeal
a final
order
or
to
file for appellate court review within 35 days of adoption of the
final
order waives all right
to review except as set out
in
Section 103.241.
(Source:
Amended
at
Ill. Reg.
________,
effective
__________
Section 103.241
Relief from Secb4ori 393-2~4Final 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 of on its own
initiative or on the motion of any party and after such
notice,
if
any,
as the Board orders.
During the
pendency of an appeal, such mistakes may be so corrected
before the appeal is docketed
in the appellate
court,
and t~iereafterwhile the appeal
is pending may be so
corrected with leave of the appellate court.
b)
On motion and upon such
terms as are just,
the Board may
relieve
a party or h4e
the party’s
legal
representative
from
a final order,
for
the following:
I)
Newly discovered evidence which existed
at the
time
of hearing and which by due diligence could not
have been
timely discovered ~n t4me under Sect~en
~83--~4; or
2)
Fraud (whether heretofore denom~rteted intrinsic or
extrinsic), misrepresentation, or other misconduct
of an adverse party;
or
3)
Void
order.
c)
~-3- 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
77-377
—30—
appropriate
showing
as
to
matters
not
of
record.
All parties to the motion shall be notified as
provided by &eet~on35Ill. Adm. Code 103.123(a).
d
~)
The A motion under
subsection
(b)
shall
be filed
with the Board within one year after entry of the
order except that
a motion pursuant to subsection
(b)(3)
shall be filed within a reasonable time
after entry of the order.
(Source:
Amended at
_____
Ill.
Reg.
______,
effective
SUBPART
I:
DECISION IN CASES INVOLVING RCRA PERMITS
Section 103.260
Purpose1
Scope and Applicability
a)
This Subpart applies when the board finds
in an
interim
order
that an enforcement action involves issuance or
modification of
a
RCRA
permit;
b)
Enforcement
actions
which
involve
issuance
or
modification of
a RCRA permit
include those
in which,
to
grant complete relief,
it appears that the Board will
have
to:
1)
revoke
a
RCRA
permit;
or
2)
order
a RCRA permit issued or modified;
or
3)
enter
an order which could require actions which
would
be
different
from
the
conditions
of
a
RCRA
permit or
35
Ill.
Adm. Code 724
or
725;
or
4)
enter
an order directing facility closure or
modification after
a finding that a facility was
operating without a
RCRA
permit and that one was
required.
c)
These procedures provide methods by which the
i3oard will
formulate
a compliance plan,
and,
if necessary, direct
the issuance or modification
of a
RCRA
permit.
ction 103.261
Interim Order
a)
The
Board
will
enter
an
interim
order
invoking
the
procedures of this Subpart on its own motion or on the
motion
of any party.
Before
the Board enters an interim
order
the parties must develop,
through hearings or
admissions pursuant
to Section 103.162,
a sufficient
record to support the findings which
the Board must make
in paragraph
(b).
77.378
—31—
b)
An
interim
order
invoking
the
procedures
of
this
Subpart
will include:
1)
A finding
or proposed finding
of violation and any
penalty or proposed monetary penalty;
and
2)
A
finding
that
the
case
is
an
enforcement
action
which involves or may involve the issuance or
modification of
a RCRA
permit;
and
3)
Joinder of the Agency
if it
is not already a party;
and
4)
A time schedule for filing by the Agency of a
partial draft permit.
c)
The interim order
is not a final order and may be
appealed only with leave of the Board.
Section 103.262
Joinder
of Agency
If the Board directs that the Agency be joined,
the Clerk will
send, by messenger
or by certified mail addressed to the Agency,
a copy of the Board Order requiring joinder.
Such mailing shall
constitute service of process upon the Agency.
Section l03.26~
Draft Permit or Statement
a)
Within
60 days after entry of an interim order,
the
Agency
shall
file
and
serve
on
all
parties
either
a
partial draft permit or
a statement that no RCRA permit
needs
to be
issued or
modified.
b)
The partial draft permit shall
be
in compliance with the
requirements of 35
Ill. Adm. Code 705.141
and shall
include such conditions as the Agency finds are
necessary to correct the violations found
in the interim
order.
c)
The Agency may confer with other parties and enter
into
agreements as
to the substance of the partial draft
permit which
it will recommend
to the Board.
The Agency
shall disclose any such conferences or agreements
in the
proposed draft permit.
Such agreements do not bind the
Board.
d)
If the Agency
issues
a statement
that no RCRA permit
needs
to
be issued or modified,
the remaining Subpart
I
procedures will not be followed, unless
the Board
determines otherwise.
77-379
—32—
Section 103.264
Stipulated Draft Remedy
a)
The parties may agree to a stipulated draft remedy.
b)
A stipulated draft remedy shall
include the following:
1)
Proposed mandatory orders which the parties agree
should be included
in the Board’s final order,
which may include one or more of the following:
A)
An order
to cease and desist conducting
regulated
activities;
B)
An order
to close a facility or unit;
C)
An order
to execute a post—closure care plan;
D)
A compliance plan,
including
a time schedule
to assure compliance with regulations
in the
shortest possible time;
E)
An order to provide
a performance bond or
other
financial assurance;
F)
An order
to apply for
a permit or permit
modification;
G)
An order revoking
a permit.
2)
A partial draft permit or statement as provided by
Section 103.263.
3)
A statement as
to whether
or not the stipulation
is
divisible for purposes of Board determinations.
c)
All parties,
including the Agency, must sign the
stipulated draft remedy before notice
is given pursuant
to Section
103.265.
Section 103.265
Contents of Public Notice
a)
In addition
to all parties, the Agency shall
serve
a
copy of any partial draft permit on the United States
Environmental Protection Agency at the following
address:
Director, Waste Management Division
USEPA, Region V
230 South Dearborn Street
Chicago,
IL 60604
77-380
—33-.
b)
In addition to
the requirements
of the Act and Section
103.125,
the Agency shall, at a minimum, give notice of
the
filing of
a partial draft permit to
the following
persons:
1)
Federal agencies
as designated by the United States
Environmental Protection Agency;
2)
Illinois Department of Transportation;
3)
Illinois Department of Conservation;
4)
Illinois Department
of Energy and Natural
Resources;
5)
Illinois Department of Public Health;
6)
The Governor
of any other State adjacent
to the
County
in which the facility
is located;
7)
Elected officials of any counties,
in other
states,
adjacent
to
the county
in which the facility
is
located,
and elected officials in any municipality,
in another state,
if it
is the closest population
center
to the facility.
c)
In addition
to the methods of notice by publication of
Section 103.125, the Agency shall give notice by
broadcast over at least one radio
station
in the area of
the facility containing
the information required by
paragraphs (d)(2),
(d)(4),
and (d)(6)through(d)(8).
d)
A notice of
a partial draft permit shall include the
following information;
1)
The address of the Board office;
2)
Name and address
of the respondent and,
if
different,
of
the facility subject to the
enforcement action;
3)
A
brief description of the business conducted at
the facility and the activity which is the subject
of
the
enforcement
action;
4)
A statement of the violations
the Board has found
or has proposed
to
find;
5)
A statement that the Agency has filed a partial
draft permit;
6)
Name, address and telephone number
of the Clerk of
the Board, from whom interested persons may obtain
77-381
—34—
further
information, including copies of the
partial draft permit and/or stipulated remedy;
and
7)
A)
A statement that
a hearing will
be held and
that the record will remain open for written
comments for
45 days after filing of
the
partial draft permit and/or stipulated
remedy.
The notice will include the address
of the Board
to which comments shall be
mailed; and,
B)
Notice of
a hearing;
8)
A statement that the record
in the action is
available at the Board office for
inspection,
except
those portions which are claimed or
determined
to be
trade secrets,
and that procedures
are available whereby disclosure may be
sought oy
the public
(35 Ill. Adm.
Code 120).
9)
A statement that enforcement actions are considered
pursuant
to Ill.
Rev.
Stat.
1983,
ch.
1li~h,pars.
1030 et
seq.
10)
Any additional
information considered necessary or
proper.
Section 103.266
Public Comment
Any person,
including the United States Environmental Protection
Agency, may comment on the partial draft permit or
stipulated
draft remedy within
45 days after
it has been
filed with the
Board and notice given pursuant
to Section 103.265.
Section 103.267
Hearing
The following shall
apply
in addition
to Sections 103.125(e) and
(f):
a)
The Hearing Officer,
after appropriate consultation with
the parties,
shall set a time and place
for the hearing
to be held not less than 30 days after
the filing of the
partial draft permit and/or stipulated remedy.
b)
The hearing shall
be held
in the county
in which
the
facility
is located,
in the population center
in such
county closest
to the facility.
c)
The Clerk
in consultation with the Hearing Officer shall
give notice
of
the hearing
to the persons entitled
to
notice
in Sections
103.125
and 103.265,
and
to any other
77-382
—35—
persons who have commented,
requested to comment or
requested notice, and
to any persons on a mailing list
provided by the Agency.
d)
Notice shall
be mailed not less than
30 days before
the
hearing.
Section 103.268
Contents of Board Order
a)
The Board will not enter
an order which would require
the issuance or modification of
a
RCRA
permit unless the
public notice, public comment and hearing procedures of
this Subpart have been followed.
b)
If the Board determines that, to grant complete
relief,
it must order
the issuance or modification of
a RCRA
permit,
its final order will include an order directing
the Agency
to issue
or modify the RCRA permit, which may
take one of the following forms;
1)
An order
to issue
or modify
a permit
in conformance
with
a draft permit;
2)
An
order
to
issue
or
modify
a
permit
in
conformance
with a draft permit as modified by the Board order;
3)
Guidelines
for issuance or modification of
a permit
in conformance with the order and other applicable
~egu1ations.
C)
If the order
specifies
a schedule leading
to compliance
with the Act and Board rules:
1)
Such schedule shall require compliance
as soon as
possible;
and,
2)
The order may
require the posting of sufficient
performance bond or other security to assure
correction of such violation within the time
prescribed.
APPENDIX A
OLD RULE NUMBERS REFERENCED (Repealed)
*he FoHew~ngteb~e4c p~rev4dedbe a~d~n referertc~nge~dBeard
u~enumbers to eect-~ennumbers pursuant to eod-~f4cet4ori~
ehepter ~li Procedure-3
Ru~es
~H
?tdm~-
eede
Parts -~8~—~6~
Part ~
Enforcement Proeeed4nga
Part Hr
Enforcement
Preeeed-~ngs
77-383
—-‘U—
Rue
39
Seet-~on-i83-;--i6-i
Ru-ic 38~
Seet~on~i63TH9
Rue 393
Seet4en 934~
Ru~ie
394
Seet-4~en 93~4~
Ru4e 385
Seet-~on 6TH3
Rue 386
Sect-ton
93~H4
Ruic ~
Seet-~eni93Ti~6
Ruic 388
Seet~oni93~49
Ruie 309
Seet-~on-i93~44i
Ruie 3i8
Seet4on i93-44~
Ru-3:e 3H
Seet~on
93~443
Seettori i93--i68
Ruic H3
Seet~oni03~6
Ru3e
34
Sect-ton &83~6~
Ru-ic 3i5
Seet-4on -i93~?3
Ruc 3i6
Seet4eri 393--389
Ruic 3H
Seet-~oni83-;20-i
Ruis HO
Seet~ortiO3T8&~
Ruic
3i:9
Seet-~en
i93T393
Ruie 3~9
Seet9on i83--~84
Ruic 333
Seet~oni93~195
332
Seet4on i93-386
333
Sect4on i83I29~
Ru-ic 324
Sect~on-i83~-290
Ru~ie325
Sect-ton i83~209
Rue 326
&eet4on i83I-H9
Sect~eni93I~229
Rue 333
Sect-ken i91~33i
Rue 929
Seet-~eriiø3-~-222
Ftue
339
Section i8~223
Rue
33-i
Sect~on
~86
SeeHon
83~-334
Rue 333
Seet4ert
93~-248
Ruc 334
Seet~on 9--24
(Source:
Repealed
at 11
Ill. Reg.
______,
effective
______________
IT
IS SO ORDERED.
I, Dorothy M.
Gunn, Clerk
of the Illinois Pollution Control
~oard
hereby certify that the above Order was adopted on
:he ~
day of
________________,
l9b7, by a vote of
~
Dorothy
M.
G’~rin,
Clerk
Illinois Pollution Control Board
77-384
