Chapter 3746-7 Hearings

3746-7-01 Requisites for de novo hearings.

(A) If no adjudication hearing was conducted in accordance with sections 119.07 to 119.10 of the Revised Code, the commission shall conduct a de novo hearing on the appeal.

(B) If, in the notice of appeal or answer thereto, an issue is raised as to the manner of hearing the commission should conduct due to a question of whether an adjudication hearing was held in accordance with sections 119.07 to 119.10 of the Revised Code, the commission shall decide the issue before conducting further proceedings. The commission may hold a separate hearing on this issue.

(C) The director, the local board of health, the state fire marshal, or state emergency response commission shall forward the certified record to the commission in accordance with rule 3746-5-13 of the Administrative Code. By agreement of the parties, the commission may order an indefinite extension for the filing of the certified record so long as such extension will not prejudice any party or unduly delay the proceedings.

(D) At the hearing, the commission shall have before it the certified record, shall hear such evidence as presented by the parties, and may hear closing statements. A record of the hearing shall be taken.

(E) Upon request of any party, the commission may allow oral argument under rule 3746-7-12 of the Administrative Code or permit the parties to file briefs on any issues raised in the hearing.

Effective: 1/1/2018
Five Year Review (FYR) Dates: 4/28/2020
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.03 , 3745.04, 3745.05
Prior Effective Dates: 8/13/73, 4/28/00, 7/29/05, 7/26/10, 7/20/15

3746-7-02 Notice and time of hearing.

Upon the filing of the appeal, the commission shall fix the time and place at which the hearing on the appeal will be held. The commission shall give the appellant and the appellee at least ten days written notice thereof by certified mail. The commission shall hold the hearing within thirty days after the notice of appeal is filed, unless the commission sets a later date.

Five Year Review (FYR) Dates: 04/28/2015 and 04/28/2020
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.03 , 3745.04, 3745.05
Prior Effective Dates: 10/23/1973, 4/28/2000, 7/26/2010

3746-7-03 Expedited hearings.

(A) Upon motion by any party and for good cause shown, the commission may place an appeal on an expedited case management schedule.

(B) Hearings or oral arguments held pursuant to an expedited case management schedule shall be conducted without interruption by continuances, other than for unavoidable circumstances.

(C) Upon motion by any party, or on the commission's own motion, the commission may amend an expedited case management schedule or place the appeal on a joint status reporting track.

Effective: 1/1/2018
Five Year Review (FYR) Dates: 04/21/2022
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.03 , 3745.04, 3745.05

3746-7-04 Attendance of witnesses and production of documents at hearing.

(A) For the purpose of conducting a de novo hearing, or where the commission has granted a request for the admission of additional evidence, the commission may on its own motion require the attendance of witnesses and the production of written or printed materials.

(B) A party may move the commission for the issuance of a subpoena to require the attendance of witnesses and the production of documents at the de novo hearing. Except in extraordinary circumstances and upon leave of the commission, such a motion shall be made at least seven business days prior to the scheduled hearing date. Subpoenas requested for the attendance of witnesses or production of records at the de novo hearing shall be issued by the commission pursuant to section 3745.05 of the Revised Code.

(C) A witness at any hearing shall testify under oath or affirmation, which any member of the commission may administer. Upon request, a witness shall be permitted to be accompanied, represented, and advised by an attorney, whose participation in the hearing shall be limited to the protection of the rights of the witness.

(D) The refusal of a witness at any a hearing before the commission to answer any question which has been ruled proper shall, in the discretion of the commission, be grounds for:

(1) Striking all testimony given by the witness on related matters; or

(2) Instituting contempt proceedings in the court of common pleas.

(E) The commission may, on its own motion or on the motion of any party, provide for the separation of witnesses during the hearing.

(F) At the discretion of the commission, sworn testimony may be submitted in support of any relevant fact or in lieu of live testimony.

Five Year Review (FYR) Dates: 04/28/2015 and 04/28/2020
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.03 , 3745.04, 3745.05
Prior Effective Dates: 8/24/1973, 10/23/1973, 4/28/2000, 7/29/2005, 7/26/2010

3746-7-05 Postponements and continuances.

(A) The commission may postpone or continue any hearing upon its own motion or upon motion of a party. The motion for a postponement must state in detail the reasons why a postponement is necessary. A motion for postponement must be served upon all parties to the proceeding and filed with the commission at least ten days prior to the date of the hearing.

(B) Postponements of hearings will not be allowed except upon a showing of good cause.

(C) A motion for postponement served or filed less than ten days in advance of the hearing shall not be granted unless the moving party demonstrates that an extraordinary situation exists which could not have been anticipated and which would justify granting a postponement. In any such situation, if time does not permit for the filing of such motion prior to the hearing, it may be made orally at the hearing.

(D) If a motion for a postponement is based upon the unavailability of a witness, the motion shall set forth the substance of the testimony of the absent witness.

(E) Continuances of hearings may be ordered by the commission in situations where a hearing cannot be concluded within the time initially set.

Five Year Review (FYR) Dates: 04/28/2015 and 04/28/2020
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.03 , 3745.04, 3745.05
Prior Effective Dates: 8/24/1973, 4/28/2000, 7/29/2005, 7/26/2010

3746-7-06 Failure to appear for hearing.

(A) Any appellant who fails to appear for hearing may be subject to dismissal for want of prosecution in accordance with rule 3746-5-28 of the Administrative Code. Alternatively, in the discretion of the commission, such appellant may be deemed to have submitted the case to the commission based on the record before it and such additional evidence and testimony as may be submitted at the hearing.

Any appellee who fails to appear for hearing shall be deemed to have submitted the case to the commission based on the record before it and such additional evidence and testimony as may be submitted at the hearing.

(B) Upon a showing of good cause, the commission may excuse the failure to appear at a hearing and reschedule the hearing.

Effective: 7/20/2015
Five Year Review (FYR) Dates: 04/28/2015 and 04/28/2020
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.03 , 3745.04, 3745.05
Prior Effective Dates: 10/23/1973, 4/28/2000, 7/26/2010

3746-7-07 Hearing may be waived.

Upon agreement of all parties, a hearing may be waived and the matter submitted to the commission for a decision based on briefs, joint stipulations, affidavits, or such other evidence as the parties may submit.

Five Year Review (FYR) Dates: 04/28/2015 and 04/28/2020
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.03 , 3745.04, 3745.05
Prior Effective Dates: 1/2/1973, 4/28/2000, 7/26/2010

3746-7-08 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.

Replaces: 3746-5-30

Effective: 1/1/2018
Five Year Review (FYR) Dates: 04/21/2022
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.03 , 3745.05, 3475.04
Prior Effective Dates: 1/2/73, 3/9/99, 5/27/04, 6/21/09, 5/30/14

3746-7-09 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.

Replaces: 3746-5-23

Effective: 1/1/2018
Five Year Review (FYR) Dates: 04/21/2022
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.03 , 3745.05, 3745.04
Prior Effective Dates: 10/23/73, 3/9/99, 5/27/04, 6/21/09, 5/30/14

3746-7-10 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.

Replaces: 3746-5-29

Effective: 1/1/2018
Five Year Review (FYR) Dates: 04/21/2022
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.03 , 3745.05, 3745.04
Prior Effective Dates: 1/2/73, 3/9/99, 5/27/04, 6/21/09, 5/30/14

3746-7-11 Stipulations before the commission.

(A) A stipulation before the commission must have the concurrence of all parties to the appeal.

(B) Stipulations shall be made in writing or, in the discretion of the commission, may be made orally at a hearing.

(C) A stipulation is binding upon the parties and upon the commission and may serve as a basis of any final order of the commission.

(D) The commission cannot alter any part of a stipulation. The commission may, in an order, state its understanding of the meaning and content of the stipulation, which shall be binding upon all parties and the commission if no objection is made within five days of the receipt of said order or as otherwise directed by the commission.

(E) The commission may refuse to accept a stipulation or may request that the parties clarify or explain their stipulations.

Replaces: 3746-7-08

Effective: 1/1/2018
Five Year Review (FYR) Dates: 04/21/2022
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.03 , 3745.05, 3745.04
Prior Effective Dates: 10/23/73, 4/28/00, 7/29/05, 7/26/10

3746-7-12 Oral argument procedure.

(A) The commission may, on its own motion or on a motion of any party, order oral argument.

(B) All the parties shall be advised of the time and place at which oral argument will be heard.

(C) Unless otherwise ordered, each side will be allowed fifteen minutes for argument. A party is not required to use all of the time allowed, and the commission may terminate the argument whenever, in its judgment, further argument is unnecessary.

(D) Any party relying on authority not already provided shall provide the commission and all parties with copies of any such authority in advance of the oral argument.

(E) Pamphlets, charts, maps, exhibits, and other material may be presented to the commission at oral argument. All such material shall be limited to the issues being argued.

Replaces: 3746-7-09

Effective: 1/1/2018
Five Year Review (FYR) Dates: 04/21/2022
Promulgated Under: 111.15
Statutory Authority: 3745.03
Rule Amplifies: 3745.03 , 3745.05, 3745.04
Prior Effective Dates: 8/27/73, 4/28/00, 7/29/05, 7/26/10

3746-7-13 Participation by amicus curiae.

(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 3746-5-26 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.

Replaces: 3746-5-05

Effective: 1/1/2018
Five Year Review (FYR) Dates: 04/21/2022
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, 5/30/14