ILLINOIS POLLUTION CONTROL BOARD
    October
    8,
    1981
    IN THE MATTER OF:
    )
    R80—18
    AMENDMENT TO CHAPTER
    1:
    )
    PROCEDURAL
    RULES 304 AND 308
    )
    PROPOSED RULE, SECOND NOTICE
    ORDER OF THE BOARD
    (by J.
    Anderson):
    On
    October 17,
    1980 the Board entered an Order (Proposed
    Rule, First Notice) on its own proposal
    for amendment of Procedural
    Rules 304 and 308.
    The proposal was published
    in the Environmental
    Re9ter
    No. 226 on November
    4,
    1980 and in the Illinois Register
    on November
    7,
    1980,
    Vol.
    4,
    p.
    39.
    On January 8,
    1981, the Board
    directed that second notice of these rules be initiated without
    change.
    However, by Order of January 14,
    1981, the Board agreed
    to reconsider its action.
    Having considered the three public
    comments received, the Board directs that second notice of these
    proposed rules, as amended, be filed with the Joint Committee on
    Administrative Rules.
    Chapter I:
    Procedural Rules
    304 Notice~ai~Formal Complaint, and Answer
    (a)—(c)
    No change.
    (e)
    Respondent may file an answer within 30 days of
    receipt of the complaint.
    All material allegations
    of the complaint shall be taken as denied if not
    specificall~’admitted by the answer,
    or if no
    answer is filed.
    Any facts constituting an affir—
    mative 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 Rule 326(b).
    308
    Motions and ~i~we~e 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
    43—485
    2
    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 be disposed of prior to the hearing on
    the complaint,
    subject, however to the provisions
    of subsection
    (e) and
    (i) of this Rule.
    Motions by
    complainant to voluntarily dismiss
    an action against
    any or all parties as to any or all claims shall he
    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.
    (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 made, and
    may be accompanied by any affidavits or other
    evidence relied on,
    and, when appropriate,
    by a
    proposed order.
    All written motions by ç~plainant
    to voluntarily dismiss an enforcement action shall
    be accompanied by affidavit attesting to the truth
    of the facts alleged.
    (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
    proof.
    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, dismiss the
    action without leave to reinstate
    if justice so
    demands.
    43—486
    3
    (f)—(i)
    No change.
    IT IS SO ORDERED.
    I, Christan L. Moffett,
    Clerk of the Illinois Pollution
    Control Board, hereby ceçtify that the above Order was adopted on
    bhe j~’~day of
    _____
    ,
    1981 by a vote of
    .S’o.
    c~4~
    Christan
    L.
    Moffê
    ,
    Clerk
    Illinois Pollution
    ontrol Board
    43—487

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