Current through Register Vol. 48, No. 12, March 22, 2024
a)
Participation
1)
When
a permit application to conduct high volume horizontal hydraulic fracturing
operations for the first time at a particular
wellsite is received by the Department, any
person having an interest that is or may be adversely affected, any government
agency that is or may be affected, or the county board of a county to be
affected under a proposed permit, may file a written request
for public hearing (Section 1-50(a) of the Act).
2) The request for hearing shall be served by
electronic mail or certified mail, return receipt requested, upon the Hearing
Officer, the Department, and the applicant. All requests for hearing shall be
received by the Department before 5 p.m. on the last day of the initial public
comment period established under Section
245.260(a).
3)
The request for hearing shall
contain a short and plain statement:
A) stating the permit review number and
acknowledging the date, time and location of the hearing;
B)
identifying the person,
government agency or county
and:
i) if a person, stating facts
demonstrating that the person has an interest that is or may be adversely
affected (Section 1-50(a) of the Act);
ii) if a government agency, stating facts
demonstrating that the government agency is or may be affected by the proposed
permit; and
iii) if a county,
stating facts demonstrating that it will be affected by the proposed
permit;
C) identifying
each objection to, or concern with, the permit application and, to the extent
possible, explaining the specific fact or facts upon which each objection or
concern is based;
D) referencing
any statute, Section and/or regulation upon which each objection or concern is
based;
E) hearing requestors are
encouraged, in addition, to list:
i) known
witnesses that will or may be called at the hearing, including, if possible,
their name, address and phone number, and a summary of their expected testimony
and, if any witness will be used as an expert, documentation (e.g., a
curriculum vitae) or statement of that witness' relevant qualifications;
and
ii) if known at the time of the
request for hearing, any documents supporting any objection or concern. The
disclosure of witnesses and documents is not required to request a hearing, but
the Department, to facilitate the orderly presentation of facts, will provide
optional space for that information on the Department prescribed hearing
request form.
4) All requests for hearing should include
copies of any documents referenced in subsection (a)(3)(E)(ii).
5)
The Department shall hold a public
hearing upon a request for hearing
under this
subsection (a)
, unless the request is determined by
the Hearing Officer
to:
A)
lack an adequate factual
statement for finding that the person is or may be adversely
affected, that the government agency is or may be affected, or that
the county is affected by the proposed permit; or
B)
be frivolous by
presenting grounds that are readily recognizable as devoid in merit. (Section
1-50(a) of the Act)
6)
Prior to, but not less than 2 business days before,
the commencement of a public hearing under this Section, any person who
could have requested the hearing under subsection (a)(1) may
petition the Department to participate in the hearing in the same manner as the
party requesting the hearing. The petition shall be in writing and
meet the requirements for requests for hearing set forth in subsection
(a)(3). The petitioner shall serve the petition by
electronic mail or certified mail, return receipt requested, upon the
Department, the Hearing Officer, and the applicant. The
petitioner shall be allowed to participate in the hearing in the same
manner as the party requesting the hearing if the petition meets the
requirements set forth in subsection (a)(3). (Section 1-50(b) of the
Act)
b) Public Hearing
Procedures and Location
1)
The public
hearing to be conducted under this Section shall comply with the contested case
requirements of the Illinois Administrative Procedure Act [5 ILCS 100
] and this Section. (Section 1-50(c) of the Act)
2) All public hearings under this Part will
be held in the county where the well site is located or such other local venue
as the Department deems necessary and available, but in no event more than 30
miles outside the county where the proposed well site is to be
located.
c) Hearing
Officer
1) All public hearings shall be
conducted by a Hearing Officer designated by the Director. Hearing Officers
shall be licensed to practice law in the State of Illinois with at least 5
years' experience. Hearing Officers may be employees of the Department or work
for the Department pursuant to contract.
2) The Hearing Officer shall take all
necessary action and shall have all powers necessary to render a decision on
requests for public hearings and on petitions for participation, to avoid
delay, to maintain order, to develop a clear and complete record, and to
conduct a fair hearing, including the following:
A) To administer oaths and
affirmations;
B) To receive
relevant evidence;
C) To regulate
the course of the hearing and the conduct of the parties and their
counsel;
D) To consider and rule
upon procedural requests;
E) To
examine witnesses and direct witnesses to testify, limit the number of times
any witness may testify, limit repetitive or cumulative testimony, and set
reasonable limits on the amount of time each witness may testify; and
F) To require the production of documents or
subpoena the appearance of witnesses, either on the Hearing Officer's own
motion or for good cause shown on motion of any party of record. The Hearing
Officer may require that relevant documents be provided to any party of record
on his or her own motion or for good cause shown on motion of any party of
record.
3) Ex parte
contacts between the parties and the Hearing Officer concerning the merits of a
proceeding are prohibited except upon notice and opportunity for all parties to
participate. This Section does not prohibit communications concerning case
status or advice concerning compliance with procedural requirements unless the
area of inquiry is an area of controversy in the proceeding.
d) Disqualification of Hearing
Officer
1) A Hearing Officer, on his or her
own motion or that of a party, may be disqualified in a proceeding due to bias
or conflict of interest. However, the fact that a Hearing Officer is an
employee of or under contract with the Department does not alone serve as a
basis for conflict of interest.
2)
A motion for disqualification filed pursuant to this Section shall:
A) be in writing;
B) contain a statement of supporting
grounds;
C) be filed with the
Director and served upon all parties and the Hearing Officer; and
D) be filed not less than 2 business days
before the scheduled date of the public hearing.
3) Unless the Director orders otherwise, the
Hearing Officer and any party to a proceeding in which a motion is filed under
this Section may file a response.
4) The Director shall rule on all motions
filed pursuant to this Section immediately or as expeditiously as possible. If
a motion filed under this Section is granted, the Director shall appoint a new
Hearing Officer for the proceeding.
e) Postponement or Continuance of Hearing
A hearing may be postponed or continued for due cause by the
Hearing Officer upon his or her own motion or upon the motion of a party to the
hearing. A motion filed by a party to the hearing shall set forth facts
justifying the request and attesting that the request for continuance is not
for the purpose of delay. Except in the case of an emergency, motions
requesting postponement or continuance shall be made in writing and shall be
received by all parties to the hearing at least 2 business days prior to the
scheduled hearing date. The Hearing Officer shall grant a motion requesting
postponement or continuance only upon the most substantial of grounds and the
public hearing is to be rescheduled as quickly as possible, taking into
consideration that the Department shall have no more than 60 days from the date
it receives the permit application to approve or reject the permit
application.
f) Failure to
Appear at Hearing
If any party, after making a proper request for public
hearing, fails to appear at the hearing, absent an emergency situation beyond
the party's control, that party's request for public hearing shall be
dismissed. If other proper requests for public hearing remain, the public
hearing will proceed with any remaining parties. If the party failing to appear
is the applicant, the hearing may proceed, at the election of the requestors,
for the testimony, evidence or statements that persons present wish to adduce,
but absent an emergency situation beyond the applicant's control, the
Department will reject the permit application. If the applicant fails to appear
but sends a satisfactory written explanation to the Hearing Officer explaining
why emergency circumstances out of the applicant's control existed, and the
applicant waives the 60 day deadline set forth in Section
245.230(e),
the Hearing Officer shall reschedule the public hearing. In such an event, the
applicant shall be responsible for payment of all the costs associated with the
first hearing.
g) Conduct
of Hearing
1) Taking into consideration that
the Department shall have no more than 60 days from the date it receives the
permit application to approve or reject the permit application, pre-hearing
conferences are not expected and will only be scheduled on request of a party
if the Hearing Officer determines that good cause is provided to do so and
delay of the public hearing will not result. Any pre-hearing conference may be
conducted via telephone.
2) Taking
into consideration that the Department shall have no more than 60 days from the
date it receives the permit application to approve or reject the permit
application based upon the information required to be supplied with permit
applications, requests for hearing and petitions for participation, discovery
will only be allowed for good cause shown after a motion is served on all
parties, shall be at the discretion of the Hearing Officer, and shall be
limited to requests for production of documents and the presence of witnesses
at the public hearing. All motions for discovery are required to be made as
early as possible, but in no event less than 2 business days before the
scheduled date for the public hearing, and in a manner to avoid delay of the
public hearing.
3) Every person,
government agency or county filing a request for hearing or petition to
participate at the public hearing shall enter an appearance in
writing.
4) All parties in the
hearing shall have the right to be represented by an attorney. Parties that are
individuals do not need to be represented by an attorney. Parties required by
Illinois law to be represented by an attorney in the courts of this State must
be represented by an attorney at the public hearing.
5) The Hearing Officer shall allow all
parties to present statements, testimony, evidence and argument as may be
relevant to the proceeding.
6) The
Department shall appear at any hearing held under this Section and shall be
given the opportunity to question parties or to provide evidence necessary to
reach a decision on the request for hearing or petition to participate. The
Department's role shall be to assist in creating a complete and accurate record
at the public hearing.
7) Ruling on
Participation
The Hearing Officer shall first determine and rule on whether
each request for hearing satisfies the requirements of subsection (a)(5),
giving due consideration to the sophistication of the petitioner and whether
the petitioner is represented by counsel. If there are also petitions to
participate, the Hearing Officer shall determine whether each petition to
participate satisfies the requirements of subsection (a)(5).
Noticeprovided to any person, government agency, or county
pursuant to
245.240
or Section
245.250
shall not constitute standing for purposes of requesting a public
hearing (Section 1-40(e) of the Act). The Hearing Officer shall base
this ruling on the standards set forth in subsection (a)(5). Any Hearing
Officer decision denying participation to any party under this subsection
(g)(7) shall be a final administrative decision by the Department and subject
to judicial review under the Administrative Review Law and rules promulgated
under that Law.
8)
Preliminary Matters
After ruling on participation, the following shall be
addressed prior to receiving evidence at the discretion of the Hearing
Officer:
A) Parties may offer
preliminary exhibits, including documents necessary to present the issues to be
heard, notices, proof of the notice of hearing, proof of publication and the
application at issue.
B) Ruling may
be made on any pending motions.
C)
Any other preliminary matters appropriate for disposition prior to presentation
of evidence may be addressed.
h) Evidence
1) Admissibility
The Illinois Rules of Evidence shall generally apply to these
proceedings. However, evidence not admissible under those rules of evidence may
be admitted, except when precluded by statute, if it is of a type commonly
relied upon by reasonable, prudent persons in the conduct of their affairs. The
Hearing Officer shall rule on the admissibility of evidence.
2) Official Notice
Official notice may be taken of any material fact not
appearing in evidence in the record if the circuit courts of this State could
take judicial notice of that fact. In addition, notice may be taken of
generally recognized technical or scientific facts within the Department's
specialized knowledge.
3)
Case Presentation
The parties requesting the public hearing shall present their
case first. If there are parties that petitioned to participate in the hearing,
they will then present their case. The Hearing Officer will determine whether
the Department or the applicant presents additional evidence and in what order.
The Hearing Officer will determine whether to allow rebuttal evidence. All
witnesses are subject to cross-examination. The Hearing Officer may allow
opening statements and closing arguments.
4) Briefs
The Hearing Officer may require or allow parties to submit
written briefs to the Hearing Officer within such time as the Hearing Officer
shall determine, taking into consideration that the Department shall have no
more than 60 days from the date it receives the permit application to approve
or reject the permit application.
i) Record of Proceedings; Testimony
A complete record of the public
hearings and all testimony shall be made by the Department and recorded
stenographically or electronically (Section 1-50(c) of the Act). Any
person testifying shall be required to do so under oath.
j) Recommended Findings
1) After the close of evidence at any public
hearing held under this Section, the Hearing Officer shall prepare recommended
findings regarding the objections and concerns raised by the parties at the
public hearing, and identifying any potential impact on the pending permit
application based on the evidence and testimony presented at the
hearing.
2) The Hearing Officer
shall issue and serve on all parties the recommended findings within 7 days
after the close of evidence.
3) The
Department shall take into consideration the recommended findings when making a
permit decision consistent with Section
245.300.