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: 05/30/2014
R.C. 119.032 review dates: 03/07/2014 and 03/07/2019
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.03 , 3745.04 , 3745.05
Prior Effective Dates: 10/23/73, 3/9/99, 5/27/04, 6/21/09

3746-5-02 Denomination of parties.

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

Effective: 05/30/2014
R.C. 119.032 review dates: 03/07/2014 and 03/07/2019
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.03 , 3745.04 , 3745.05
Prior Effective Dates: 1/2/73, 3/9/99, 5/27/04, 6/21/09

3746-5-03 Joinder.

(A) In filing an appeal with the commission, the appellant shall name as an appellee any person or persons necessary 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 to join such person. The motion shall set forth in detail the reasons the person should be joined as an appellee. Such motion shall be served on all parties to the appeal. In no event shall a person, which any party has moved to be joined, be served with notice of such joinder less than fifteen days prior to the hearing before the commission.

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

Effective: 05/30/2014
R.C. 119.032 review dates: 03/07/2014 and 03/07/2019
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.03 , 3745.04 , 3745.05
Prior Effective Dates: 8/24/73, 3/9/99, 5/27/04, 6/21/09

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 appropriate for the disposition of the appeal.

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

Effective: 05/30/2014
R.C. 119.032 review dates: 03/07/2014 and 03/07/2019
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.03 , 3745.04 , 3745.05
Prior Effective Dates: 10/23/73, 3/9/99, 5/27/04, 6/21/09

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, shall state the reasons why his participation as an amicus curiae is desirable, and indicate whether he wishes to file a brief, present oral argument, or both.

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

(2) A party may file an objection to the granting of such motion in accordance with rule 3746-6-09 of the Administrative Code. 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.

Effective: 05/30/2014
R.C. 119.032 review dates: 03/07/2014 and 03/07/2019
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.03 , 3745.04 , 3745.05
Prior Effective Dates: 8/24/73, 3/9/99, 5/27/04, 6/21/09

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 shall be sent via U.S. mail or hand-delivered. The commission shall not accept filings via facsimile or electronic transmission . Appellant shall service notice of the filing 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 the appellant demonstrates, by affidavit, 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: 05/30/2014
R.C. 119.032 review dates: 03/07/2014 and 03/07/2019
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.03 , 3745.04 , 3745.05 , 3745.07 , 3750.19
Prior Effective Dates: 8/24/73, 3/9/99, 4/23/02, 1/16/04, 6/21/09

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.

Effective: 05/30/2014
R.C. 119.032 review dates: 03/07/2014 and 03/07/2019
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.03 , 3745.04 , 3745.05 , 3745.07 , 3750.19
Prior Effective Dates: 10/23/73, 3/9/99, 5/27/04, 6/21/09

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, denied , or that the appellee is without knowledge or information sufficient to form a belief as to the truth of an averment as contained within an assignment of error.

Effective: 05/30/2014
R.C. 119.032 review dates: 03/07/2014 and 03/07/2019
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.03 , 3745.04 , 3745.05
Prior Effective Dates: 3/15/73, 3/9/99, 5/27/04, 6/21/09

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 motion shall be served upon all parties and filed with the commission.

Effective: 05/30/2014
R.C. 119.032 review dates: 03/07/2014 and 03/07/2019
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.03 , 3745.04 , 3745.05
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 shall be served upon all parties and filed with the commission.

Effective: 05/30/2014
R.C. 119.032 review dates: 03/07/2014 and 03/07/2019
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.03 , 3745.04 , 3745.05
Prior Effective Dates: 8/24/73, 3/9/99, 5/27/04, 6/21/09

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.

Effective: 05/30/2014
R.C. 119.032 review dates: 03/07/2014 and 03/07/2019
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.03 , 3745.04 , 3745.05 , 3745.07 , 3750.19
Prior Effective Dates: 3/15/73, 3/9/99, 5/27/04, 6/21/09

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

(A) Within seven days after receipt of the notice of appeal, the director or statutory agency 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 statutory agency 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, the appellee may motion the commission to issue an order allowing a single certification of record.

(6) The director or statutory agency shall notify the commission if the record contains documents of unusual bulk or weight and physical exhibits other than documents. Such documents shall not be transmitted unless, after notification, 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. To the extent possible, the index shall be organized chronologically.

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

(i) Materials such as maps, photographs, and charts that are too large to be bound in accordance with this subsection shall be submitted in accordance with paragraph (B)(6) of this rule.

(ii) 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)(7) 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 possession of the documents comprising the certified record, or any part thereof, is required by the director or statutory agency for the day-to-day operations of the agency, the director or statutory agency may motion the commission to issue an order allowing the agency to retain the record or parts thereof .

(C) 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: 05/30/2014
R.C. 119.032 review dates: 03/07/2014 and 03/07/2019
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.03 , 3745.04 , 3745.05
Prior Effective Dates: 8/24/73, 3/9/99, 5/27/04, 6/21/09

3746-5-13 Stays.

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

(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.

Effective: 05/30/2014
R.C. 119.032 review dates: 03/07/2014 and 03/07/2019
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.03 , 3745.04 , 3745.05
Prior Effective Dates: 8/24/73, 3/9/99, 5/27/04

3746-5-14 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 in this rule. 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 or statutory agency 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: 05/30/2014
R.C. 119.032 review dates: 03/07/2014 and 03/07/2019
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.03 , 3745.04 , 3745.05
Prior Effective Dates: 10/23/73, 3/9/99, 5/27/04, 6/21/09

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 effect 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 or statutory agency, 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: 05/30/2014
R.C. 119.032 review dates: 03/07/2014 and 03/07/2019
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.03 , 3745.04 , 3745.05
Prior Effective Dates: 10/23/73, 3/9/99, 5/27/04, 6/21/09

3746-5-16 Form of motions, memoranda, and other filings.

(A) Motions, memoranda, and other filings shall be either typewritten or printed by standard typographic or other mechanical printing process that produces a clear black image on single-sided white paper, although exception may be made for parties allowed to proceed pro se.

(B) Motions, memoranda, and other filings shall be bound and consist of pages of eight and one-half by eleven inches. Filings shall be double-spaced except quoted matter which shall be single-spaced. Where necessary, documents attached to the filing 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 filing exceed eight and one-half by fourteen inches unfolded, such documents shall not be attached to the filing, but shall accompany it and shall be clearly marked for reference.

(C) All filings shall be produced in the manner prescribed in paragraph (A) of this rule. Motions, memoranda, and other filings shall contain a caption setting forth the name of the commission, the parties to the appeal, the case number, and a brief title .

Effective: 05/30/2014
R.C. 119.032 review dates: 03/07/2014 and 03/07/2019
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.03 , 3745.04 , 3745.05
Prior Effective Dates: 10/23/73, 3/9/99, 5/27/04, 6/21/09

3746-5-17 Format of briefs.

(A) 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 address(es) of counsel representing the party on whose behalf the document is filed.

(B) 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.

(C) The brief of the appellee shall conform to the requirements of paragraphs (A) to (B) 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.

(D) 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.

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

Effective: 05/30/2014
R.C. 119.032 review dates: 03/07/2014 and 03/07/2019
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.03 , 3745.04 , 3745.05
Prior Effective Dates: 10/23/73, 3/9/99, 5/27/04, 6/21/09

3746-5-18 Issue briefing.

(A) The commission may order a party to brief an issue prior to the issuance of a final order of the commission. The commission shall state in its order for briefs the date said briefs are due .

(B) Parties may move the commission for extensions of time for the filing of an issue brief. 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 an issue brief within the time set by the commission, the party 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: 05/30/2014
R.C. 119.032 review dates: 03/07/2014 and 03/07/2019
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.03 , 3745.04 , 3745.05
Prior Effective Dates: 10/23/73, 3/9/99, 5/27/04, 6/21/09

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, by facsimile transmission, or by electronic 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. Service by facsimile or electronic mail is complete upon transmission, but is not effective if the serving party learns that it did not reach the person served.

(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: 05/30/2014
R.C. 119.032 review dates: 03/07/2014 and 03/07/2019
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.03 , 3745.04 , 3745.05
Prior Effective Dates: 1/2/73, 3/9/99, 4/28/00, 7/29/05, 6/21/09

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, Sunday, or 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: 05/30/2014
R.C. 119.032 review dates: 03/07/2014 and 03/07/2019
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.03 , 3745.04 , 3745.05
Prior Effective Dates: 10/23/73, 3/9/99, 5/27/04, 6/21/09

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

(A) When a party to an appeal, a person moving to intervene in an appeal, or an 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 that the signer has read it, that to the best of the signer's knowledge, information, and belief the statements made therein 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: 05/30/2014
R.C. 119.032 review dates: 03/07/2014 and 03/07/2019
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.03 , 3745.04 , 3745.05
Prior Effective Dates: 8/24/73, 3/9/99, 5/27/04, 6/21/09

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, provide an 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, the person will not be entitled to notice in connection with the proceedings in the matter.

Effective: 05/30/2014
R.C. 119.032 review dates: 03/07/2014 and 03/07/2019
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.03 , 3745.04 , 3745.05
Prior Effective Dates: 10/23/73, 3/9/99, 5/27/04, 6/21/09

3746-5-23 Evidence.

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

(B) Parties shall have the right to present 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 . A copy of the testimony shall be served upon and 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) 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, the party 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: 05/30/2014
R.C. 119.032 review dates: 03/07/2014 and 03/07/2019
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.03 , 3745.04 , 3745.05
Prior Effective Dates: 10/23/73, 3/9/99, 5/27/04, 6/21/09

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 determines 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: 05/30/2014
R.C. 119.032 review dates: 03/07/2014 and 03/07/2019
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.03 , 3745.04 , 3745.05
Prior Effective Dates: 1/2/73, 3/9/99, 5/27/04, 6/21/09

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 subpoenas.

(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 that memorializes 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: 05/30/2014
R.C. 119.032 review dates: 03/07/2014 and 03/07/2019
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.03 , 3745.04 , 3745.05
Prior Effective Dates: 10/23/73, 3/9/99, 5/27/04, 6/21/09

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. Appeals may be consolidated by order of the commission upon its own motion, or on the motion of any party. If the commission orders consolidation of the appeals, the appeals will thereafter proceed as a single case.

(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 proceedings before the commission.

Effective: 05/30/2014
R.C. 119.032 review dates: 03/07/2014 and 03/07/2019
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.03 , 3745.04 , 3745.05
Prior Effective Dates: 1/2/73, 3/9/99, 5/27/04, 6/21/09

3746-5-27 Subsitituion of parties.

Any person may motion the commission to substitute any party for good cause shown.

Replaces: 3746-5-27

Effective: 05/30/2014
R.C. 119.032 review dates: 03/07/2019
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.03 , 3745.04 , 3745.05
Prior Effective Dates: 1/2/73, 3/9/99, 5/27/04

3746-5-28 Dismissal of actions.

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

(B) All rulings granting a motion to dismiss shall be with prejudice to refiling and all rulings of the commission granting dismissal shall be entered in the journal .

(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: 05/30/2014
R.C. 119.032 review dates: 03/07/2014 and 03/07/2019
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.03 , 3745.04 , 3745.05
Prior Effective Dates: 10/23/73, 3/9/99, 5/27/04, 6/21/09

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, other evidence, and rulings regarding the admissibility thereof, presented at the hearing.

(B) Parties desiring copies of any transcript of a hearing may 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 be corrected.

Effective: 05/30/2014
R.C. 119.032 review dates: 03/07/2014 and 03/07/2019
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.03 , 3745.04 , 3745.05
Prior Effective Dates: 1/2/73, 3/9/99, 5/27/04, 6/21/09

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 orders another party to bear the burden of proceeding because the commission determines that party possesses or should possess knowledge of facts relevant to the issue not available to the party asserting the affirmative.

(B) The director or statutory 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

director or statutory agency protests its issuance or continuation; or

(4) Where a party appeals or objects to the settlement of a matter between the

director or statutory agency 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: 05/30/2014
R.C. 119.032 review dates: 03/07/2014 and 03/07/2019
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.03 , 3745.04 , 3745.05
Prior Effective Dates: 1/2/73, 3/9/99, 5/27/04, 6/21/09

3746-5-31 Notice to counsel.

Where a party is represented in a proceeding before the commission by more than one counsel of record, the party shall designate one counsel of record as lead counsel. All notifications and communications from the commission may be sent to the designated lead counsel only.

Effective: 05/30/2014
R.C. 119.032 review dates: 03/07/2014 and 03/07/2019
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.03 , 3745.04 , 3745.05
Prior Effective Dates: 1/2/73, 3/2/77, 12/10/77, 3/9/99, 5/27/04