ILLINOIS POLLUTION CONTROL

BOARD

November 19,

1981

Ir•~ THE MATTER

OF:

R80—18

;~•1m~1DMENTTO CHAPTER

1:

PROCEDURAL

RULES

304

AND

308

)

AUOPTED RULE:

FINAL ORDER.

FIr~ALORDER OF THE BOARD

(by

3.

Anderson):

On October

8,

1981 the Board directed that the proposed

rules be sent to

the Joint Committee on Administrative Rules

(JCAR)

for its

“second notice” review.

In response to JCAR

comments,

the Board has added a new clarifying sentence to

the end of Rule 308(e)

and has corrected the lettering of

the proposed addition to Rule 304.

JCAR has no objection to

the

rules with these modifications.

The Board hereby adopts the following rules.

Deleted

language i~lined through,

new language is underlined.

Chapter

I:

Procedural

Rules

304

Notice,

e~

Formal

Complaint,

and

Answer

(a)—(c)

No

change.

(d)

Respondent

may

file

an

answer

within

30 days of

receipt of the_co~laint.

All material allega?ions

~5~fthe complaint

shall

he taken as denied if

not

!pecificaily admitted by the answer, or

if

no

answer is

filed.

Any facts constituting anaffir—

mative defense~_~hichwould be likelX to take the

complainant_by surprise must be plainly set

fo~th

~j~or to hearing in the answer or

in a supplemental

answer

filed

pursuant to Rule 326(b).

308

Motions and Answers Responses

(a)

~

~

~

a~-~e-ke~’t-as-4eft4e4.r

All motions preliminary

to a hearing shall be presented to the Board or

to

the Hearing Officer at least 14 days prior to the

44—125

---

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 the complaint shall be directed to the Board

and shall he disposed of prior to the hearing on

the complaint,

subject, however to the provisions

of subsection

(e) and

(i)

of this Rule,

Motions bj~

~

ru

dismiss an action aaainst

or all

arties

as ~

claims shalihe

directed to the Board and may

bemade~j~_~n

the hearing record, or m~

_madein writing at

ani 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.

(b)

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_m~de~~

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 alleg~ed.

(c)—(d)

No change.

(e)

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

prc~of. The

Hearing

Officer

shall refer any such

motions

to the Board pursuant to subparagraph

(a)

of this section.

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 con-

ditional 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 reinstaté

if

justice so

demands.

Among the factors to be

44—126

---

3

considered in making such a determination are

evidence and ar~~~ts

concerning the action’s

~e

and procedural history, and the pre~udicial

effects,

if

ar~y,of dismissing the actron witlE

leave to reinstate.

(f)—(i)

No change.

As these changes are not substantial,

the Board hereby

adopts the Proposed Opinion of October

8,

1981, without change,

as

its

Final Opinion in this rulemaking.

IT

IS

SO

ORDERED,

I, Christan

L.

Moffett, Clerk of

the

Illinois Pollution

Control Board, hereby

certif,y that

the

above Order was adopted on

the

~

day of ~

____,

1981 by

a vote of

~

~

Christan L. Moffet

,

êrk

Illinois Pollution C

~ol Board

44—127