Chapter 3746-5 General Appellate Procedure

3746-5-01 Parties to an appeal.

(A) Any person who was a party to a proceeding in which the resulting action is appealable to the environmental review appeals commission or who was aggrieved or adversely affected by an action that was not preceded by a proposed action may appeal to the commission for an order vacating or modifying the action.

(B) The environmental review appeals commission has exclusive original jurisdiction over any matter that may be brought before it.

Effective: 06/21/2009
R.C. 119.032 review dates: 03/09/2009 and 03/09/2014
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.02 - 3745.06
Prior Effective Dates: 10/23/73, 3/9/99, 5/27/04

3746-5-02 Denomination of parties.

The person appealing to the commission shall be known as the appellant and any party substantially supporting the finding from which the appeal is taken shall be known as the appellee.

Effective: 06/21/2009
R.C. 119.032 review dates: 03/09/2009 and 03/09/2014
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.02 - 3745.06
Prior Effective Dates: 1/2/73, 3/9/99, 5/27/04

3746-5-03 Joinder.

(A) In filing an appeal with the commission, the appellant should name as an appellee any person or persons needed for the just adjudication of the appeal.

(B) If, after filing a notice of appeal, an appellant wishes to join a person as an appellee, appellant shall file a motion with the commission requesting permission. The motion shall set forth in detail the reasons for joining the person as an appellee. Such motion shall be served on all parties to the appeal. In no event shall a person to be joined be served with notice of such joinder less than fifteen days prior to the hearing before the commission.

(C) If, in the opinion of the commission, the appellant has failed to join any party whom the commission determines to be necessary to the resolution of the appeal, the commission may sua sponte order the joinder of said party.

Effective: 06/21/2009
R.C. 119.032 review dates: 03/09/2009 and 03/09/2014
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.02 - 3745.06
Prior Effective Dates: 8/24/73, 3/9/99, 5/27/04

3746-5-04 Intervention.

(A) Intervention is discretionary and subject to such terms and conditions as the commission may prescribe. The commission may grant a motion to intervene and designate the intervenor as a party to such an extent, and upon such terms as the commission shall deem. In the discretion of the commission, a person may be denied intervention in a matter in which he could have participated as a party, but failed to do so in a timely manner.

(B) A motion to intervene must set forth the interest of the movant in the proceeding and demonstrate all of the following:

(1) The movant's participation will assist in the determination of the issues in question;

(2) The intervention will not unnecessarily delay the proceeding;

(3) The position of the movant is substantially supporting or not supporting the action or lack of action in the proceeding from which the appeal has been taken so that the commission may designate the movant as an appellant or an appellee; and

(4) The reasons why the movant could not have earlier become a party.

(C) The motion to intervene shall be in substantially the following form:

Motion to Intervene

(1) Movant (name, address and telephone number).

(2) Movant believes he is entitled to intervene in the above-captioned matter for the following reasons: (list reasons) and could not have sooner become a party for the following reasons: (list reasons).

(3) Movant is a person having an interest in the above-captioned matter for the following reasons: (list reasons).

(4) Movant will present the following kinds of evidence at a hearing on the merits of the matter: (describe evidence movant will offer at the time of hearing).

(5) Movant believes that his interest is or may be inadequately represented in the proceeding by the current parties of record because: (list reasons).

(6) The counsel for movant is: (name, address, and telephone number).

(7) Movant hereby certifies that a copy of this motion has been served upon all parties to the above proceeding.

Respectfully submitted, (Movant)

(D) The commission shall notify movant of its decision relative to joinder by certified mail. All other parties shall be notified by regular mail.

Effective: 06/21/2009
R.C. 119.032 review dates: 03/09/2009 and 03/09/2014
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.02 - 3745.06
Prior Effective Dates: 10/23/73, 3/9/99, 5/27/04

3746-5-05 Participation by amicus curiae; briefs; oral argument.

(A) The commission may allow the filing of briefs, and in extraordinary circumstances, permit oral argument at hearing by an amicus curiae.

(B) A person wishing to participate in an appeal as an amicus curiae shall move the commission for permission to participate. Such a motion shall identify the interest of the person filing and shall state the reasons why his participation as an amicus curiae is desirable, and whether he wishes to file a brief, present oral argument, or both.

(1) The motion shall be served simultaneously upon the parties and filed with the commission.

(2) A party may file an objection to the granting of such motion within five days of service of the motion. The party shall set forth in detail his reasons for objecting to participation by an amicus curiae.

(C) An amicus brief and all briefs in response shall be filed at the time specified by the commission.

(D) Oral argument by an amicus curiae will be heard only in strict compliance with the conditions enunciated by the commission in its order granting such a motion.

Effective: 06/21/2009
R.C. 119.032 review dates: 03/09/2009 and 03/09/2014
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.02 - 3745.06
Prior Effective Dates: 8/24/73, 3/9/99, 5/27/04

3746-5-06 Filing the notice of appeal.

Appeals filed pursuant to section 3745.04 or 3750.19 of the Revised Code shall be filed with the commission within thirty days after the notice of the action being appealed. Appeals filed pursuant to section 3745.07 of the Revised Code shall be filed with the commission within thirty days of the issuance, denial, modification, revocation, or renewal being appealed. All appeals must be filed via U.S. mail, or hand-delivered. No filings via facsimile or electronic transmission will be accepted. Notice of the filing of the appeal shall be served by the appellant upon the appellee within three days after the appeal is filed with the commission. The appeal shall be accompanied by a filing fee of seventy dollars, which the commission may reduce if by affidavit the appellant demonstrates that payment of the full amount of the fee would cause extreme hardship. In the event the required filing fee is not submitted to the commission within five days of the filing of the notice of appeal, the commission may dismiss the appeal for failure to comply with section 3745.04 of the Revised Code.

Effective: 06/21/2009
R.C. 119.032 review dates: 03/09/2009 and 03/09/2014
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.02 - 3745.06
Prior Effective Dates: 8/24/73, 3/9/99, 4/23/02, 1/16/04

3746-5-07 Contents of the notice of appeal.

(A) The notice of appeal shall be in writing and shall set forth the name, address and telephone number of the appellant and shall include, or be accompanied by, a copy of the action being appealed.

(B) The notice of appeal shall contain the assignments of error to be presented for review and the relief sought on appeal.

(C) An original and four copies of all notices of appeal shall be filed with the commission.

(D) The notice of appeal shall be substantially in the following form:

"Notice of Appeal

to the Environmental Review Appeals Commission

See Caption at

http://www.registerofohio.state.oh.us/pdfs/3746/0/5/3746-5-07_FF_A_RU_20090611_1137.pdf

Notice is hereby given that A.B., appellant, hereby appeals to the environmental review appeals commission, from the order (describing it) entered in this action on the _____ day of __________, 20__, specifying the manner in which appellant is allegedly aggrieved or adversely affected and all relevant issues to be resolved by the commission.

_____________________________________________

(Attorney for appellant or pro se appellant)

_____________________________________________

(Address and telephone number and email address)"

Effective: 06/21/2009
R.C. 119.032 review dates: 03/09/2009 and 03/09/2014
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.02 - 3745.06
Prior Effective Dates: 10/23/73, 3/9/99, 5/27/04

3746-5-08 Notice of appearance and answer to the notice of appeal.

(A) An appellee shall file a notice of appearance and an answer with the commission within seven days of receipt of the notice of appeal.

(B) The answer of the appellee shall respond to each assignment of error by indicating that it is admitted or denied.

Effective: 06/21/2009
R.C. 119.032 review dates: 03/09/2009 and 03/09/2014
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.02 - 3745.06
Prior Effective Dates: 3/15/73, 3/9/99, 5/27/04

3746-5-09 Extension of time for filings.

The commission, upon motion and for good cause shown, may extend the time for the filing of pleadings, motions, and briefs, other than the notice of appeal. Such motions shall be simultaneously served upon all parties and filed with the commission.

R.C. 119.032 review dates: 05/11/2012 and 03/09/2014
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.02 - 3745.06
Prior Effective Dates: 8/24/73, 3/9/99, 5/27/04

3746-5-10 Amendment of notice of appeal.

(A) Upon motion by appellant, the commission may allow the amendment of an appeal.

(B) The commission may order the filing of an amended notice of appeal.

(C) Copies of any amended notice of appeal must simultaneously be served upon all parties and filed with the commission.

Effective: 06/21/2009
R.C. 119.032 review dates: 03/09/2009 and 03/09/2014
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.02 - 3745.06
Prior Effective Dates: 8/24/73, 3/9/99, 5/27/04

3746-5-11 Notice of appeal - Effect of failure to comply with statute.

Failure to comply with the appeal provisions of Chapter 3745. of the Revised Code governing appeals to the commission shall be sufficient basis for dismissing the appeal. Such a dismissal shall leave in effect the action that was the subject of the appeal.

Effective: 06/21/2009
R.C. 119.032 review dates: 03/09/2009 and 03/09/2014
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.02 - 3745.06
Prior Effective Dates: 3/15/73, 3/9/99, 5/27/04

3746-5-12 Certification of record to the commission.

(A) Within seven days after receipt of the notice of appeal, the director, a local board of health, the state fire marshal, or the state emergency response commission shall prepare and certify to the commission the record of proceedings out of which the appeal arises. The record certified to the commission shall be available for inspection and reproduction by any person. Costs of reproduction shall be borne by the requester.

(B) Content of record

(1) The record on appeal shall include, but not be limited to, all papers, exhibits, documents, correspondence, and the transcript of proceedings, if any, including exhibits relating to the action from which the appeal arises.

(2) Where a party alleges that the whole record has not been certified, the party shall specify, insofar as he is able, the material allegedly omitted and shall request its inclusion in the record through the filing of a request with the director or other appropriate entity for the supplementation of the certified record. If the request is denied, the party shall file a motion with the commission requesting production of the omitted materials. If the commission concludes such material should be included, the commission shall order it included in the record. The commission may conclude material has been omitted from the certified record and shall order its inclusion in the record through supplementation.

(3) All transcripts filed as part of the record below shall be certified as correct and state whether they are complete or partial.

(4) If a question arises as to whether the certified record accurately reflects what transpired in a proceeding below, the commission shall request an explanation that shall be certified as part of the record. If anything material is omitted from the record, or is misstated therein, a party may move that the omission or misstatement be corrected.

(5) If more than one appeal is taken by different parties to the same action, a single record may be certified, unless one or more of the parties shall request by motion a separate certification of the record and demonstrate good cause for separate certification.

(6) Documents of unusual bulk or weight and physical exhibits other than documents shall not be transmitted unless the commission directs the party to do so. A party must make advance arrangements with the commission for the transportation and receipt of exhibits of unusual bulk or weight.

(7) The record shall be bound and accurately indexed.

(a) Each item in the record shall be numbered. The index shall list the number of each item and a brief description of its contents. The index shall, to the extent possible, be sequential as to time.

(b) The binding shall be of the type and size commonly used to hold papers of the dimensions eight and one-half eleven inches.

(i) Photographs shall be mounted and be bound in the record.

(ii) Materials such as maps, photographs, and charts that are too large to be bound in accordance with this subsection shall be submitted in an orderly fashion.

(iii) Each container holding such items shall have an index of its contents, with the items numbered consecutively, and a description of each item contained therein.

(c) Paragraph (B)(8)(b)(ii) of this rule does not apply to exhibits submitted in an adjudication hearing before the director or local agency. However, every effort should be made to properly identify and organize such exhibits.

(8) Transmission of the certified record is effected when it is mailed or otherwise forwarded to the commission. The transmittal date shall be endorsed on the face of the certified record.

(9) If the certified record, or any part thereof, is required by the agency pending the appeal, the commission may issue an order to that effect, and the agency may retain the record or parts thereof subject to order of the commission.

(C) When the record is complete, it shall be certified to the commission.

(D) The commission shall mail notice of the receipt of the certified record to counsel for the parties on the date the record is received at the offices of the commission.

Effective: 06/21/2009
R.C. 119.032 review dates: 03/09/2009 and 03/09/2014
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.02 - 3745.06
Prior Effective Dates: 8/24/73, 3/9/99, 5/27/04

3746-5-13 Stays.

(A) The filing of an appeal does not automatically suspend or stay execution of the action being appealed. Upon motion by appellant, the commission may suspend or stay such execution pending immediate determination of the appeal without interruption by continuances, other than for unavoidable circumstances. Except for compelling reasons justifying a stay, a stay shall be denied.

(B) A motion for stay may be filed with the commission at any time during the proceeding and shall set forth the specific reasons for which it is being requested. In granting a stay, the commission may impose such conditions as are warranted by the circumstances including, where appropriate, the filing of a bond or other security as provided for in rule 3746-5-15 of the Administrative Code.

R.C. 119.032 review dates: 05/11/2012 and 03/09/2014
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.02 - 3745.06
Prior Effective Dates: 8/24/73, 3/9/99, 5/27/04

3746-5-14 Procedure for expedited stays.

(A) At any time before the commencement of the hearing, any party may move the commission to hold a hearing or oral argument for a stay of the action under appeal pursuant to the expedited procedures set forth herein. Such motion shall be in writing and shall contain a concise statement of the basis for its request. Upon the receipt of such motion, the commission shall immediately notify all parties in writing. The director and any other party shall respond within three days after receipt of the notice of such motion.

(B) The commission shall schedule a hearing or oral argument upon twenty-four hours notice to the parties. The hearing on the motion for expedited stay shall be scheduled to occur no sooner than eight days after the date on which the motion is received by the commission.

(C) In extraordinary circumstances, the commission may schedule a hearing or oral argument at any time after the motion is received upon twenty-four hours notice to the parties. In such a case, answers may be offered orally at the hearing.

(D) In such a proceeding, the commission shall issue its decision without delay upon the conclusion of the hearing or oral argument and without awaiting receipt of a transcript of the testimony if, in its opinion, an unreasonable delay would result.

Effective: 06/21/2009
R.C. 119.032 review dates: 03/09/2009 and 03/09/2014
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.02 - 3745.06
Prior Effective Dates: 10/23/73, 3/9/99, 5/27/04

3746-5-15 Bonds.

(A) If the commission determines a stay is necessary, it may order the posting of a bond. Prior to setting bond, the commission shall take evidence upon affidavit or at hearing as to the pecuniary losses, or required expenditures to prevent losses, during the time interval of the appeal before the commission. The total value of any project involved in an appeal is not determinative of the amount of the bond to be set by the commission, nor shall potential revenue loss to a governmental unit be considered the same as pecuniary damage to a private party, nor shall the ordinary on-going expenses of the project being appealed be considered as pertinent to the determination of bond. The amount of the bond shall be determined exclusively by extraordinary expenditures or losses incident to the suspension of the project resulting from the commission's order to stay.

(B) The commission will not require bond where it would have the affect of denying appellants their right to review of administrative actions appealable to the commission under Chapter 3745. of the Revised Code. The considerations of administrative difficulty; delay in the effectuation of permits or other actions of the director, his delegate, a local board of health, the state fire marshal, or the state emergency response commission; or economic cost incident to such general delay as is part of the review process shall not serve as a basis for the setting of bond by the commission.

(C) A bond may be in the form of a pledge of property or security owned by the person required to post bond by the commission or the providing a promise of surety by some person other than the one required to post bond who shall provide the commission with evidence of his fiscal responsibility. In either situation, the commission must be offered assurance that the face sum of the bond shall be paid in the event of forfeiture.

(D) All bonds required by the commission shall be filed with the executive secretary of the commission and kept in his custody. The secretary shall list in the registry, under the registry number of the case in which the bond has been required, the fact that a bond has been called for by the commission, its amount, and the type of security offered, including the name and address of any person acting as surety.

(E) A bond shall be released when it expires by its own terms as set by the commission or when the commission orders its release. In the event it becomes necessary to collect upon the bond, the commission shall take evidence as to whether all or only a part of the bond is to be paid, to whom payment shall be made, and to whom unexpended portions shall be returned.

(F) The executive secretary of the commission shall note in the registry the date of the bond's release, payment, or expiration.

Effective: 06/21/2009
R.C. 119.032 review dates: 03/09/2009 and 03/09/2014
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.02 - 3745.06
Prior Effective Dates: 10/23/73, 3/9/99, 5/27/04

3746-5-16 Form of briefs and other filings.

(A) Briefs shall be either typewritten or printed by standard typographic or other mechanical printing process which produces a clear black image on white paper, although exception may be made for parties allowed to proceed in pro se.

(B) Briefs shall be bound in volumes or folders having pages of eight and one-half by eleven inches. Briefs shall be double spaced except quoted matter which shall be single spaced. Where necessary, documents attached to the brief may exceed eight and one-half by eleven inches, but in no event shall such documents exceed eight and one-half by fourteen inches. Where documents accompanying a brief exceed eight and one-half by fourteen inches unfolded, such documents shall not be attached to the brief, but shall accompany it and shall be clearly marked for reference.

(C) The front cover of the brief shall contain:

(1) The name of the governmental agency in which the matter originated and the number of the case;

(2) The title of the case;

(3) The nature of the proceeding (e.g., appeal from adoption of a regulation or granting of a permit, etc.);

(4) The title of the document (e.g., "Brief of Appellant"); and

(5) The name(s) and addresse(s) of counsel representing the party on whose behalf the document is filed.

(D) Applications for rehearing, motions, and all other filings, shall be produced in the manner prescribed in paragraph (A) of this rule. Motions and other filings shall contain a caption setting forth the name of the commission, the title of the appeal, the appeal number, and a brief descriptive title indicating the purpose of the filing.

Effective: 06/21/2009
R.C. 119.032 review dates: 03/09/2009 and 03/09/2014
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.02 - 3745.06
Prior Effective Dates: 10/23/73, 3/9/99, 5/27/04

3746-5-17 Format of briefs.

(A) The brief of appellant shall contain the following, under appropriate headings and in the order indicated:

(1) A table of contents, with page references, and a table of cases (alphabetically arranged), statutes and other authorities cited, with references to the pages of the brief where they are cited.

(2) A statement of the assignments of error presented for review.

(3) A statement of the case and facts. The statement shall first briefly state the nature of the case, the course of proceedings, and its disposition below. There shall follow a statement of the facts relevant to the assignments of error presented for review, with appropriate references to the record.

(4) An argument. The argument may be preceded by a summary. The argument shall contain the contentions of the appellant with respect to the assignments of error presented, and the reasons therefore, with citations to any authorities, affidavits, and precise parts of the evidence or testimony relied upon.

(5) A short conclusion stating the relief sought.

(B) The brief of the appellee shall conform to the requirements of paragraphs (A)(1) to (A)(4) of this rule, except that a statement of the case or of the facts relevant to the assignments of error need not be made unless the appellee is dissatisfied with the statement contained in the brief filed by the appellant.

(C) Appellant may file a reply brief to the brief of appellee, and if the appellee has cross-appealed, the appellee may file a brief in reply to the response of the appellant to the assignments of errors presented by the cross-appeal. No further briefs may be filed except with leave of the commission.

(D) If determination of the assignments of error presented requires the consideration of provisions of constitutions, statutes, ordinances, rules, regulations, or case law, a complete copy of the provision or case shall accompany the brief.

Effective: 06/21/2009
R.C. 119.032 review dates: 03/09/2009 and 03/09/2014
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.02 - 3745.06
Prior Effective Dates: 10/23/73, 3/9/99, 5/27/04

3746-5-18 Filing and service of briefs.

(A) The commission may order briefs from counsel prior to any hearing upon such points in the notice of appeal and/or answer to the notice of appeal as the commission shall determine necessary. The commission may order briefs at any time in a proceeding prior to the issuance of the final order of the commission, on such issues as the commission deems appropriate. The commission shall state in its order for briefs the date said briefs are due at the office of the commission. Briefs on motions to admit additional evidence are governed by rule 3746-9-04 of the Administrative Code.

(B) Counsel may move the commission for extensions of time for the filing of briefs. Extensions under this rule shall be allowed only upon motion to the commission and for good cause shown.

(C) If a party fails to file his brief within the time set, or extended, by the commission, he will not be heard at any subsequent oral argument except by permission of the commission upon a showing of good cause submitted in writing at least twenty-four hours prior to argument.

Effective: 06/21/2009
R.C. 119.032 review dates: 03/09/2009 and 03/09/2014
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.02 - 3745.06
Prior Effective Dates: 10/23/73, 3/9/99, 5/27/04

3746-5-19 Filing and service of documents.

(A) Filing may be accomplished by mail addressed to the commission. Filings shall not be timely unless received within the time specified in this chapter, except that briefs shall be deemed filed on the day of mailing. No filings via facsimile or electronic transmission will be accepted.

(B) Except as otherwise prescribed, copies of all papers filed with the commission shall, at or before the time of filing, be served on all other parties to the appeal. Service on a party represented by counsel shall be made on counsel.

(C) Service upon parties may be in person or by mail. Personal service includes delivery of the copy to a clerk or other responsible person at the office of counsel. Service by mail is complete on mailing.

(D) Documents presented for filing shall contain an acknowledgment of service or proof of service in the form of a statement of the date and manner of service and of the names of the persons served, certified by the person who made service. Documents filed with the commission shall not be considered until proof of service is endorsed thereon or separately filed.

Effective: 06/21/2009
R.C. 119.032 review dates: 03/09/2009 and 03/09/2014
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.02 - 3745.06
Prior Effective Dates: 1/2/73, 3/9/99, 4/28/2000. 7/29/05

3746-5-20 Computation and extension of time.

(A) In computing any period of time prescribed for filing and serving a document, the date of the underlying act or event from which the designated period of time begins to run, shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday. When the time prescribed or allowed is less than seven days, intermediate Saturdays, Sundays, or legal holidays shall be excluded in the computation.

(B) Any request for an extension of time must be filed within the time allowed for the filing or serving of the document with the commission.

Effective: 06/21/2009
R.C. 119.032 review dates: 03/09/2009 and 03/09/2014
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.02 - 3745.06
Prior Effective Dates: 10/23/73, 3/9/99, 5/27/04

3746-5-21 Identification, representation of authority, and verification.

(A) When an original party to an appeal, an intervenor, one moving to become an intervenor in an appeal, or any amicus curiae files any document, that person or his authorized representative shall identify himself and shall submit an original and four copies of each document to the commission.

(B) In the case of notices of appeal, if the person appealing or moving is a corporation, unincorporated association, or governmental entity, the person signing the document must indicate in the document his authority to so act. Further processing of the appeal is to be in accordance with section 4705.01 of the Revised Code.

(C) Signing a document constitutes a representation by the signer that he has read it, that to the best of his knowledge, information, and belief the statements made in it are true, and that it is not interposed for delay. If a document is not signed, or the signature is not identified, or it is signed with intent to defeat the purpose of this section, it may be stricken and the proceeding may go forward as though the document had not been filed.

Effective: 06/21/2009
R.C. 119.032 review dates: 03/09/2009 and 03/09/2014
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.02 - 3745.06
Prior Effective Dates: 8/24/73, 3/9/99, 5/27/04

3746-5-22 Record address.

Every person who files a document in a proceeding before the commission shall, at the time of the initial filing in the matter, state his address. Any change in address shall be filed with the commission, along with an indication of the case number to which the change of address applies. If a person fails to furnish a record address as required in this section, he will not be entitled to notice in connection with the proceedings in the matter.

Effective: 06/21/2009
R.C. 119.032 review dates: 03/09/2009 and 03/09/2014
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.02 - 3745.06
Prior Effective Dates: 10/23/73, 3/9/99, 5/27/04

3746-5-23 Evidence.

(A) A party may object to the admission of any evidence and the commission shall pass upon the admissibility of said evidence. If the commission refuses to admit evidence, the party offering same may make a proffer thereof, and such proffer shall be made a part of the record of such hearing.

(B) Parties shall have the right of presentation of evidence, cross-examination, objection, motion, and argument. The commission may limit the number of witnesses upon any issue and may require any party to present additional evidence on any issue. All witnesses shall be sworn or shall affirm the truthfulness of their testimony.

(C) Written testimony (on numbered lines in either narrative or question-and-answer form) of any witness may be admitted into evidence, provided the witness is present and sworn or affirmed, and provided a copy of the testimony was served upon, and actually received by, all other parties, at least three days prior to the hearing.

(D) Copies of any exhibit to be offered into evidence shall be provided to each commission member and all parties at the time it is identified as an exhibit, unless otherwise ordered by the commission.

(E) All written statements, charts, tabulations, or similar data offered in evidence at the hearing shall, after identification by the proponent and upon a satisfactory showing of the admissibility of the contents thereof, be numbered as exhibits, received in evidence, and made a part of the record.

(F) If any person objects to the admission or rejection of any evidence or to other limitations of the scope of any examination or cross-examination, he shall state briefly the grounds for such objection on the record. A ruling by the commission on any such objection shall also be a part of the record.

Effective: 06/21/2009
R.C. 119.032 review dates: 03/09/2009 and 03/09/2014
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.02 - 3745.06
Prior Effective Dates: 10/23/73, 3/9/99, 5/27/04

3746-5-24 View of premises.

(A) Any party may file a motion requesting the commission to conduct a site view.

(B) The commission may, upon reasonable notice and at reasonable times, inspect any site, including any body of water, industrial plant, building or other premises, when the commission is of the opinion that such a viewing would have probative value in any matter pending before the commission.

(C) All parties shall have prior notice of such a viewing, and shall be informed of the right to be present, and the right to subsequently present written statements concerning said viewing.

(D) A court reporter, supplied by the party requesting the view, shall accompany the commission at said viewing and shall record all questions and answers. No argument or independent oral statement shall be permitted at said view.

(E) The commission may order the taking of photographs or videos of the site and shall charge the costs to the party initiating the request for a site visit. Any photographs or videos that are taken shall be included in the record of the proceeding.

Effective: 06/21/2009
R.C. 119.032 review dates: 03/09/2009 and 03/09/2014
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.02 - 3745.06
Prior Effective Dates: 1/2/73, 3/9/99, 5/27/04

3746-5-25 Prehearing conference.

(A) At any time prior to the commencement of the hearing, the commission may direct the parties or their counsel to participate before one or more members of the commission in a prehearing conference to consider the following:

(1) Simplification and clarification of the issues.

(2) Necessity or desirability of amending the notice of appeal.

(3) Obtaining stipulations relative to undisputed facts or the contents and authenticity of documents.

(4) Issuance of and response to subpoena.

(5) Taking of depositions and the use of depositions in the proceeding.

(6) Agreements limiting the number of expert and other witnesses and limiting the scope of testimony.

(7) Disclosure of the names and addresses of witnesses and the exchange of documents intended to be offered into evidence.

(8) A summary of expert testimony intended to be introduced at the hearing.

(9) Any other matter that may simplify the issues or expedite the proceedings, including the avoidance of undue repetition or complication in the presentation of evidence or argument.

(B) Whenever a prehearing conference is held, the commission shall issue an order which recites the matters discussed, the agreements reached, and the rulings made as a result of the prehearing conference. The order is to be served on the parties and shall be filed in the record of proceedings of the commission.

Effective: 06/21/2009
R.C. 119.032 review dates: 03/09/2009 and 03/09/2014
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.02 - 3745.06
Prior Effective Dates: 10/23/73, 3/9/99, 5/27/04

3746-5-26 Consolidation of proceedings.

(A) Where two or more persons filing an appeal have common interests such as to make joinder practicable, they may file a joint notice of appeal, or they may file a motion to consolidate the appeals after separate timely notices of appeal have been filed. If the motion to consolidate is granted by the commission, the case will thereafter proceed as a single appeal. Appeals may be consolidated by order of the commission upon its own motion, or on the motion of any party.

(B) Where the director has consolidated verified complaints under section 3745.08 of the Revised Code, the commission, for good cause shown, may order the complaints separated for independent proceeding before the commission.

Effective: 06/21/2009
R.C. 119.032 review dates: 03/09/2009 and 03/09/2014
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.02 - 3745.06
Prior Effective Dates: 1/2/73, 3/9/99, 5/27/04

3746-5-27 Substitution of parties.

(A) Death.

(1) If a party dies while a proceeding is pending before the commission, and the claim is not extinguished as a result of the death, the personal representative of the deceased party may be substituted as a party on motion filed by the representative, or by any party, with the commission. If the deceased party has no representative, any party may note the death on the record and proceedings shall then be had as the commission may direct.

(2) If a party against whom an appeal may be taken dies before an appeal is filed, an appellant may proceed as if death had not occurred. After the notice of appeal is filed, substitution shall be effected by the commission in accordance with this section.

(3) If a party entitled to appeal should die before an appeal has been filed, and the claim is not extinguished by death, the appeal may be filed by his personal representative, or, if he has no personal representative, by his attorney of record within the time prescribed by this chapter. After the notice of appeal is filed, substitution shall be effected by the commission in accordance with this section.

(B) Public officials.

(1) When a public officer is a party to an appeal before the commission in his official capacity and during its pendency he resigns or otherwise ceases to hold office, the action does not abate and his successor is automatically substituted as a party. Proceedings following the substitution shall be in the name of the substituted party, but any misnomer not affecting the substantial rights of the parties shall be disregarded. An order of the substitution may be entered at any time, but the omission to enter such an order shall not affect the substitution.

(2) When a public officer is a party to an appeal or other proceeding in his official capacity, he may be described as a party by his official title rather than by name, but the commission may require his name to be added.

(C) If substitution of a party before the commission is necessary for any other reason, substitution shall be effective in accordance with the procedure prescribed in paragraph (A) of thie rule.

R.C. 119.032 review dates: 05/11/2012 and 03/09/2014
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.02 - 3745.06
Prior Effective Dates: 1/2/73, 3/9/99, 5/27/04

3746-5-28 Dismissal of actions.

(A) An appellant may dismiss his appeal by written motion to the commission at any stage of a proceeding.

(B) All motions to dismiss are granted with prejudice and all rulings of the commission granting dismissal shall be entered in the journal with the notation that it is with prejudice.

(C) Where an appellant fails to pursue an appeal or fails to comply with these rules or orders of the commission, the commission, upon motion of appellee or upon its own motion, may, after notice to the appellant, dismiss an appeal for want of prosecution.

Effective: 06/21/2009
R.C. 119.032 review dates: 03/09/2009 and 03/09/2014
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.02 - 3745.06
Prior Effective Dates: 10/23/73, 3/9/99, 5/27/04

3746-5-29 Record to be made.

(A) A record of the testimony and other evidence submitted shall be taken by an official court reporter or by any other means approved by the commission. The record shall include all of the testimony and other evidence, and the rulings regarding the admissibility thereof, presented at the hearing.

(B) Parties desiring copies of any transcript of a hearing shall obtain such copies from the official reporter upon payment of the costs of the copies. Parties shall also have the opportunity to review a copy of the transcript on file with the commission. Any objections to the accuracy of the work of the reporter shall be filed with the commission. The commission, if convinced of the validity of the objections, shall order the work of the reporter corrected.

Effective: 06/21/2009
R.C. 119.032 review dates: 03/09/2009 and 03/09/2014
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.02 - 3745.06
Prior Effective Dates: 1/2/73, 3/9/99, 5/27/04

3746-5-30 Burden of proceedings.

(A) The burden of proceeding shall rest with the party asserting the affirmative of any issue, except where the commission requires the other party to proceed because the commission believes that party is of the opinion that party is in possession of facts or should have knowledge of facts relevant to the issue not available to the party asserting the affirmative.

(B) The director or other appropriate agency shall have the burden of proceeding in the following cases, unless otherwise ordered by the commission:

(1) Where it has revoked a license or permit;

(2) Where it orders a party to take affirmative action to abate air or water pollution, or any other condition or nuisance; or

(3) Where it seeks to engage in activities that are objected to as environmentally harmful.

(C) A private party appealing a final action shall have the burden of proceeding in the following cases, unless otherwise ordered by the commission:

(1) Where there is a refusal to grant, issue, or reissue any license or permit, or to approve or disapprove any plans, standards, regulations, specifications, or actions;

(2) Where there is a refusal to grant a variance from any regulation, or the granting of any conditional, temporary, or supplementary permit, dealing with air or water quality standards or other situations in which variances of such special permits are possible;

(3) Where a party who is not the applicant or holder of a license or permit from the state protests its issuance or continuation.; or

(4) Where a party appeals or objects to the settlement of a matter between the state and a private party.

(D) The commission may take official notice that a given activity normally causes or creates a substantial possibility of environmental damage, and the burden of rebutting such presumption shall be upon the party seeking to show otherwise.

Effective: 06/21/2009
R.C. 119.032 review dates: 03/09/2009 and 03/09/2014
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.02 - 3745.06
Prior Effective Dates: 1/2/73, 3/9/99, 5/27/04

3746-5-31 Notice to counsel.

Where a party is represented in a proceeding before the commission by more than one counsel of record, all notifications and communications may be sent by the commission to a single counsel only, with preference being given to counsel whose office address is nearest to the office of the commission, except where the party has notified the commission that a particular counsel is to be the single recipient of notifications and communications from the commission.

R.C. 119.032 review dates: 05/11/2012 and 03/09/2014
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.02 - 3745.06
Prior Effective Dates: 1/2/73, 3/9/99, 5/27/04