Chapter 4906-7 Procedure

4906-7-01 Hearings.

(A) Unless otherwise ordered, all hearings shall be held at the principal office of the board. However, where practicable, the board shall schedule a session of the hearing for the purpose of taking public testimony in the vicinity of the project. Reasonable notice of each hearing shall be provided to all parties.

(B) The administrative law judge shall regulate the course of the hearing and conduct of the participants. Unless otherwise provided by law, the administrative law judge may without limitation:

(1) Administer oaths and affirmations.

(2) Determine the order in which the parties shall present testimony and the order in which witnesses shall be examined.

(3) Issue subpoenas.

(4) Rule on objections, procedural motions, and other procedural matters.

(5) Examine witnesses.

(6) Grant continuances.

(7) Require expert or factual testimony to be offered in board proceedings to be reduced to writing, filed with the board, and served upon all parties and the staff prior to the time such testimony is to be offered and according to a schedule to be set by the administrative law judge.

(8) Take such actions as are necessary to:

(a) Avoid unnecessary delay.

(b) Prevent the presentation of irrelevant or cumulative evidence.

(c) Prevent public disclosure of trade secrets, proprietary business information, or confidential research, development, or commercial materials and information. The administrative law judge may, upon motion of any party, direct that a portion of the hearing be conducted in camera and that the corresponding portion of the record be sealed to prevent public disclosure of trade secrets, proprietary business information or confidential research, development, or commercial materials and information. The party requesting such protection shall have the burden of establishing that such protection is required.

(d) Assure the hearing proceeds in an orderly and expeditious manner.

(C) Members of the public to offer testimony shall be sworn in or affirmed at the portion or session of the hearing designated for the taking of public testimony.

(D) Formal exceptions to rulings or orders of the administrative law judge are unnecessary if, at the time any ruling or order is made, the party makes known the action which he or she desires the presiding hearing officer to take, or his or her objection to action which has been taken and the basis for that objection.

Effective: 01/25/2009
R.C. 119.032 review dates: 11/10/2008 and 11/30/2013
Promulgated Under: 111.15
Statutory Authority: 4906.03
Rule Amplifies: 4903.22 , 4906.03 , 4906.07 , 4906.08 , 4906.12
Prior Effective Dates: 12/27/76, 6/10/89, 8/28/98, 12/15/03

4906-7-02 Ex parte discussion of cases.

After a case has been assigned a formal docket number, neither any board member nor any administrative law judge assigned to the case shall discuss the merits of the case with any party or intervenor to the proceeding, unless all parties and intervenors have been notified and have been given the opportunity of being present or a full disclosure of the communication insofar as it pertains to the subject matter of the case has been made..

When an ex parte discussion occurs, a representative of the party or parties at the discussion shall prepare a document listing the parties in attendance and providing a full disclosure of the communications made. Within two business days of the occurrence of the ex parte discussion, the document shall be provided to the chairman or board member or to an administrative law judge present at the discussion for review. Upon completion of the review, the final document shall be filed with the board's docketing division and served upon the parties to the case within two business days and the filer shall serve a copy upon the parties to the case and to each participant in the discussion. The document filed and served shall include the following language: Any participant in the discussion who believes that any representation made in this document is inaccurate or that the communications made during the discussion have not been fully disclosed shall prepare a letter explaining the participant's disagreement with the document and shall file the letter with the board and serve the letter upon all parties and participants in the discussion within two business days of receipt of this document.

Effective: 01/25/2009
R.C. 119.032 review dates: 11/10/2008 and 11/30/2013
Promulgated Under: 111.15
Statutory Authority: 4906.03
Rule Amplifies: 4906.03 , 4906.06 , 4906.12 , 4903.081
Prior Effective Dates: 12/27/76, 7/7/80, 6/10/89, 12/15/03

4906-7-03 Parties.

(A) The parties to a board proceeding concerning an application for a certificate shall include:

(1) Any person who files an application or a petition for a jurisdictional determination.

(2) Any person who is designated as the subject of a board investigation.

(3) Any person granted leave to intervene under rule 4906-7-04 of the Administrative Code.

(4) Any other person expressly made a party by order of the board or administrative law judge.

(B) If any owner of a major utility facility is operated by a receiver or trustee, the receiver or trustee shall also be made a party.

(C) Except for purposes of rules 4906-7-05 , 4906-7-06 , paragraph (C) of rule 4906-7-07 , paragraph (I) of rule 4906-7-07 , and rules 4906-7-09 , 4906-7-11 , 4906-7-12 , 4906-7-14 , 4906-7-15 , and 4906-7-16 of the Administrative Code, the board staff shall not be considered a party to any proceeding.

Eff 12-27-76; 6-10-89; 8-28-98; 12-15-03
Rule promulgated under: RC 111.15
Rule authorized by: RC 4906.03
Rule amplifies: RC 4906.08 , 4906.03 , 4903.22
R.C. 119.032 review dates: 11/10/2008 and 09/30/2013

4906-7-04 Intervention.

(A) Persons who desire to intervene in a board proceeding shall comply with the following requirements:

(1) The chief executive officer of each municipal corporation and county and the head of each public agency charged with the duty of protecting the environment or of planning land use in the area in which any portion of such facility is to be located may intervene by preparing and filing with the board, within thirty days after the date he or she was served with a copy of the application under division (B) of section 4906.06 of the Revised Code, a notice of intervention containing the following information:

(a) A certification or affirmation as to the legal title and authority of such official.

(b) A statement demonstrating the fact that all or part of the proposed facility is to be located within the area under the jurisdiction of such official.

(c) A statement indicating that such official intends to intervene in the proceedings, together with the grounds for which intervention is sought.

(2) All other persons may petition for leave to intervene by:

(a) Preparing a petition for leave to intervene setting forth the grounds for the proposed intervention and the interest of the petitioner in the proceedings.

(b) Filing said petition within thirty days after the date of publication of the notice required in accordance with paragraph (C)(1) of rule 4906-5-08 of the Administrative Code or in accordance with division (B) of section 4906.08 of the Revised Code.

(3) Copies of all notices of intervention and petitions for leave to intervene shall be sent to all parties by the prospective intervenor, and a certificate of service shall be filed with the board at the time of filing said notice or petition pursuant to rule 4906-7-06 of the Administrative Code.

(B) The board or the administrative law judge shall grant petitions for leave to intervene only upon a showing of good cause.

(1) In deciding whether to permit intervention under this paragraph, the board or the administrative law judge may consider:

(a) The nature and extent of the person's interest.

(b) The extent to which the person's interest is represented by existing parties.

(c) The person's potential contribution to a just and expeditious resolution of the issues involved in the proceeding.

(d) Whether granting the requested intervention would unduly delay the proceeding or unjustly prejudice an existing party.

(C) The board or the administrative law judge may, in extraordinary circumstances and for good cause shown, grant a petition for leave to intervene in subsequent phases of the proceeding, filed by a person identified in paragraph (A)(1) or (A)(2) of this rule, who failed to file a timely notice of intervention or petition for leave to intervene. Any petition filed under this paragraph must contain, in addition to the information set forth in paragraph (A)(2) of this rule, a statement of good cause for failing to timely file the notice or petition and shall be granted only upon a finding that:

(1) Extraordinary circumstances justify the granting of the petition.

(2) The intervenor agrees to be bound by agreements, arrangements, and other matters previously made in the proceeding.

(D) Unless otherwise provided by law, the board or the administrative law judge may:

(1) Grant limited participation, which permits a person to participate with respect to one or more specific issues, if:

(a) The person has no real and substantial interest with respect to the remaining issues.

(b) The person's interest with respect to the remaining issues is adequately represented by existing parties.

(2) Require intervenors with substantially similar interests to consolidate their examination of witnesses or presentation of testimony.

Effective: 01/25/2009
R.C. 119.032 review dates: 11/10/2008 and 11/30/2013
Promulgated Under: 111.15
Statutory Authority: 4906.03
Rule Amplifies: 4906.03 , 4906.08 , 4906.09 , 4906.12 , 4903.221
Prior Effective Dates: 12/27/76, 6/10/89, 8/28/98, 12/15/03

4906-7-05 Role of participants in public hearings.

At the public hearing, the board or the administrative law judge shall accept written or oral testimony from any person regardless of that person's status. However, the right to examine witnesses is reserved exclusively for parties and the staff.

R.C. 119.032 review dates: 11/10/2008 and 09/30/2013

Promulgated Under: 111.15

Statutory Authority: 4906.03

Rule Amplifies: 4906.08, 4906.12, 4906.03, 4903.02

Prior Effective Dates: 12/27/76, 6/10/89, 8/28/98

4906-7-06 Service of pleadings and other papers.

(A) Unless otherwise ordered by the board or the administrative law judge, all pleadings or papers filed with the board subsequent to the original filing or board entry initiating the proceeding shall be served upon all parties no later than the date of filing. Such pleadings or other papers shall contain a certificate of service. The certificate of service shall state the date and manner of service, identify the names of the persons served, and be signed by the attorney or the party who files the document. The certificate of service for a document served by mail or personal service also shall include the address of the person served. The certificate of service for a document served by facsimile transmission also shall include the facsimile number of the person to whom the document was transmitted. The certificate of service for a document served by electronic message also shall include the e-mail address of the person to whom the document was sent.

(B) If a party has entered an appearance through an attorney, service of pleadings or other papers shall be made upon the attorney instead of the party. If the party is represented by more than one attorney, service need only be made upon the "trial attorney" designated under rule 4906-7-11 of the Administrative Code. If a spokesperson has been designated under rule 4906-7-11 of the Administrative Code, service upon the spokesperson constitutes service upon all of the persons in such group.

(C) Service upon an attorney or party may be personal, by mail, by facsimile transmission, or by electronic message. Personal, facsimile transmission, or electronic message service made after five-thirty p.m. shall be considered complete on the next business day.

(1) Personal service is complete by delivery of the copy to the attorney or to a responsible person at the office of the attorney. Personal service to a party not represented by an attorney is complete by delivery to the party or to a responsible person at the address provided by the party in its pleadings.

(2) Service by mail to an attorney or party is complete by mailing a copy to his or her last known address. If the attorney or party to be served has previously filed and served one or more pleadings or other papers in the proceeding, the term "last known address" means the address set forth in the most recent such pleading or other paper.

(3) Service of a document to an attorney or party by facsimile transmission may be made only if the person to be served has consented to receive service of the document by facsimile transmission. Service by facsimile transmission is complete upon the sender receiving a confirmation generated by the sender's facsimile equipment that the facsimile transmission has been sent. The sender shall retain the confirmation as proof of service until the case is completed.

(4) Service of a document by electronic message to an attorney or party may be made only if the person to be served has consented to receive service of the document by electronic message. Service by electronic message is complete upon the sender receiving a confirmation generated by the sender's computer that the electronic message has been sent. The sender shall retain the confirmation as proof of service until the case is completed.

(D) For purposes of this rule, the term "party" includes all persons who have filed notices or petitions to intervene which are pending at the time a pleading or paper is to be served, provided that the person serving the pleading or other paper has been served with a copy of the notice or petition to intervene.

Replaces rule 4906-7-06CaseNo.86-1440-GE-BRO; Eff 12-27-76; 6-10-89; 12-15-03
Rule promulgated under: RC 111.15
Rule authorized by: RC 4906.03
Rule amplifies: RC 4906.06 , 4906.10 , 4906.07
R.C. 119.032 review dates: 11/10/2008 and 09/30/2013

4906-7-07 Discovery.

(A) Scope of discovery.

(1) The purpose of this rule is to encourage the prompt and expeditious use of prehearing discovery in order to facilitate thorough and adequate preparation for participation in board proceedings.

(2) Except as otherwise provided in paragraph (A)(7) of this rule, any party to a board proceeding may obtain discovery of any matter, not privileged, which is relevant to the subject matter of that proceeding. It is not grounds for objection that the information sought would be inadmissible at the hearing, if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may be obtained through interrogatories, requests for the production of documents and things or permission to enter upon land or other property, depositions and requests for admission. The frequency of using these discovery methods is not limited unless the board orders otherwise under paragraph (H) of this rule.

(3) Any party may, through interrogatories, require any other party to identify each expert witness expected to testify at the hearing and to state the subject matter on which the expert is expected to testify. Thereafter, any party may discovery from the expert or other party facts or data known or opinions held by the expert which are relevant to the stated subject matter. A party who has retained or specially employed an expert may, with the approval of the board, require the party conducting discovery to pay the expert a reasonable fee for the time spent responding to discovery requests.

(4) Discovery responses which are complete when made need not be supplemented with subsequently acquired information unless:

(a) The response fully identified each expert witness expected to testify at the hearing and stated the subject matter upon which each expert was expected to testify.

(b) The responding party later learned that the response was incorrect or otherwise materially deficient.

(c) The response indicated that the information sought was unknown or nonexistent and such information subsequently became known or existent.

(d) An order of the board or agreement of the parties provides for the supplementation of responses.

(e) Requests for the supplementation of responses are submitted prior to the commencement of the hearing.

(5) The supplementation of responses required under paragraph (A)(4) of this rule and requests for supplementation of responses submitted pursuant to paragraph (A)(4)(e) of this rule shall be provided within five business days of discovery of the new information.

(6) Nothing in this rule precludes parties from conducting informal discovery by mutually agreeable methods or by stipulation.

(7) A discovery request under this rule may not seek information from any party which is available in prefiled testimony, prehearing data submissions, or other documents which that party has filed with the board in the pending proceeding. Before serving any discovery request, a party must first make a reasonable effort to determine whether the information sought is available from such sources.

(8) For purposes of this rule, the term "party" includes any person who has filed a notice or petition to intervene which is pending at the time a discovery request or motion is to be served or filed.

(9) The staff shall be deemed a "party" under this rule for purposes of conducting discovery, but no party shall conduct discovery against the staff.

(10) Discovery may not be used to harass or delay existing procedural schedules.

(B) Time period for discovery.

(1) Discovery may begin immediately after an application is filed or a proceeding is commenced and should be completed as expeditiously as possible. Unless otherwise ordered for good cause shown, discovery must be completed prior to the commencement of the hearing.

(2) The board or the administrative law judge may shorten or extend the time period for discovery upon their own motion or upon motion of any party for good cause shown.

(C) Filing and service of discovery requests and responses.

Except as otherwise provided in paragraphs (H) and (I) of this rule and unless otherwise ordered for good cause shown, discovery requests shall be served upon the party from whom discovery is sought and filed with the board. Upon a showing of good cause, the board or the administrative law judge may determine that the responding party may recover the reasonable cost of providing copies from the party making the request. For purposes of this rule the term "response" includes written responses or objections to interrogatories, requests for the production of documents or tangible things, requests for permission to enter upon land or other property, and requests for admission.

(D) Interrogatories.

(1) Any party may serve upon any other party written interrogatories, to be answered by the party served. If the party served is a corporation, partnership, association, government agency, or municipal corporation, it shall designate one or more of its officers, agents, or employees to answer the interrogatories, who shall furnish such information as is available to the party. Each interrogatory shall be answered separately and fully, in writing and under oath, unless it is objected to, in which case the reason for the objection shall be stated in lieu of an answer. The answers shall be signed by the person making them, and the objections shall be signed by the attorney or other person making them. The party upon whom the interrogatories have been served shall serve a copy of the answers or objections upon the party submitting the interrogatories and all other parties within twenty days after the service thereof, or within such shorter or longer time as the board or the administrative law judge may allow. The party submitting the interrogatories may move for an order under paragraph (I) of this rule with respect to any objection or other failure to answer an interrogatory.

(2) Subject to the scope of discovery set forth in paragraph (A) of this rule, interrogatories may elicit facts, data, or other information known or readily available to the party upon whom the interrogatories are served. An interrogatory which is otherwise proper is not objectionable merely because it calls for an opinion, contention, or legal conclusion, but the board or the administrative law judge may direct that such interrogatory need not be answered until certain designated discovery has been completed, or until some other designated time. The answers to interrogatories may be used to the extent permitted by the rules of evidence, but such answers are not conclusive and may be rebutted or explained by other evidence.

(3) Where the answer to an interrogatory may be derived or ascertained from public documents on file in this state, or from documents which the party served with the interrogatory has furnished to the party submitting the interrogatory within the preceding twelve months, it is a sufficient answer to such interrogatory to specify the title of the document, the location of the document or the circumstances under which it was furnished to the party submitting the interrogatory, and the page or pages from which the answer may be derived or ascertained.

(4) Where the answer to an interrogatory may be derived or ascertained from the business records of the party upon whom the interrogatory has been served or from an examination, audit, or inspection of such records, and the burden of deriving the answer is substantially the same for the party submitting the interrogatory as for the party served, it is a sufficient answer to such interrogatory to specify the records from which the answer may be derived or ascertained and to afford the party submitting the interrogatory a reasonable opportunity to examine, audit, or inspect such records.

(E) Depositions.

(1) Any party to a board proceeding may take the testimony of any other party or person, other than a member of the board staff, by deposition upon oral examination with respect to any matter within the scope of discovery set forth in paragraph (A) of this rule. The attendance of witnesses and production of documents may be compelled by subpoena as provided in rule 4906-7-08 of the Administrative Code.

(2) Any party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to the deponent, to all parties, and to the board. The notice shall state the time and place for taking the deposition and the name and address of each person to be examined, if known, or if the name is not known, a general description sufficient for identification. If a subpoena duces tecum is to be served upon the person to be examined, a designation of the materials to be produced thereunder shall be attached to or included in the notice.

(3) If any party shows that he or she was unable with the exercise of due diligence to obtain counsel to represent him or her at the taking of a deposition, the deposition may not be used against such party.

(4) The board or the administrative law judge may, upon motion, order that a deposition be recorded by other than stenographic means, in which case the order shall designate the manner of recording the deposition, and may include provisions to assure that the recorded testimony will be accurate and trustworthy. If such an order is made, any party may arrange to have a stenographic transcription made at his or her own expense.

(5) A party may, in the notice and in a subpoena, name a corporation, partnership, association, government agency, or municipal corporation and designate with reasonable particularity the matters on which examination is requested. The organization so named shall choose one or more of its officers, agents, employees, or other persons duly authorized to testify on its behalf, and shall set forth, for each person designated, the matters on which he or she will testify. The persons so designated shall testify as to matters known or reasonably available to the organization.

(6) Depositions may be taken before any person authorized to administer oaths under the laws of the jurisdiction in which the deposition is taken, or before any person appointed by the board or the administrative law judge. Unless all of the parties expressly agree otherwise, no deposition shall be taken before any person who is a relative, employee, or attorney of any party, or a relative or employee of such attorney.

(7) The person before whom the deposition is to be taken shall put the witness on oath or affirmation, and shall personally, or by someone acting under his or her direction and in his or her presence, record the testimony of the witness. Examination and cross-examination may proceed as permitted in board hearings. The testimony shall be recorded stenographically or by any other means ordered under paragraph (E)(4) of this rule. If requested by any of the parties, the testimony shall be transcribed at the expense of the party making the request.

(8) All objections made at the time of the examination to the qualifications of the officer taking the deposition, or to the manner of taking it, or to the evidence presented, or to the conduct of any party, and any other objection to the proceedings shall be noted by the officer upon the deposition. Evidence objected to shall be taken subject to the objections. In lieu of participating in the oral examination, parties may serve written questions in a sealed envelope upon the party taking the deposition, who shall transmit them to the officer, who in turn shall propound them to the witness and record the answers verbatim.

(9) At any time during the taking of a deposition, the board or the administrative law judge may, upon motion of any party or the deponent and upon a showing that the examination is being conducted in bad faith or in such a manner as to unreasonably annoy, embarrass, or oppress the deponent or party, order the person conducting the examination to cease taking the deposition, or may limit the scope and manner of taking the deposition as provided in paragraph (H) of this rule. Upon demand of the objecting party or deponent, the taking of the depositions shall be suspended for the time necessary to make a motion for such an order.

(10) If and when the testimony is fully transcribed, the deposition shall be submitted to the witness for examination and shall be read to or by him or her, unless such examination and reading are expressly waived by the witness and the parties. Any changes in form or substance which the witness desires to make shall be entered upon the deposition by the officer with a statement of the reasons given by the witness for making the changes. The deposition shall then be signed by the witness unless the signing is expressly waived by the parties or the witness is ill or cannot be found or refuses to sign. If the deposition is not signed by the witness within ten days after its submission to him or her, the officer shall sign it and state on the record the fact of the waiver or the illness or absence of the witness, or the fact of the refusal to sign together with the reason, if any, given for such refusal. The deposition may then be used as fully as though signed, unless the administrative law judge upon motion to suppress, holds that the reasons given for the refusal to sign require rejection of the deposition in whole or in part.

(11) The officer shall certify on the deposition that the witness was duly sworn by him or her and that the deposition is a true record of the testimony given by the witness. Upon payment of reasonable charges therefor, the officer shall furnish a copy of the deposition to any party or to the deponent.

(12) Documents and things produced for inspection during the examination of the witness shall, upon request of any party, be marked for identification and annexed to the deposition, except that:

(a) The person producing the materials may substitute copies to be marked for identification, if all parties are afforded a fair opportunity to verify the copies by comparison with the originals.

(b) If the person producing the materials requests their return, the officer shall mark them, give each party an opportunity to inspect and copy them, and return them to the person producing them, and the materials may then be used in the same manner as if annexed to deposition.

(13) Depositions may be used in board hearings to the same extent permitted in civil actions in courts of record. Unless otherwise ordered for good cause shown, any depositions to be used as evidence must be filed with the board at least three days prior to the commencement of the hearing.

(14) The notice to a party deponent may be accompanied by a request made in compliance with paragraph (F) of this rule for the production of documents or tangible things at the taking of the deposition.

(F) Production of documents and things, entry upon land or other property.

(1) Subject to the scope of discovery set forth in paragraph (A) of this rule, any party may serve upon any other party a written request to:

(a) Produce and permit the party making the request, or someone acting on his or her behalf, to inspect and copy any designated documents, including writings, drawings, graphs, charts, photographs, or data compilations, which are in the possession, custody, or control of the party upon whom the request is served.

(b) Produce for inspection, copying, sampling, or testing any tangible things which are in the possession, control, or custody of the party upon whom the request is served.

(c) Permit entry upon designated land or other property for the purpose of inspecting, measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon.

(2) The request shall set forth the items to be inspected either by individual item or by category, and shall describe each category with reasonable particularity. The request shall also specify a reasonable time, place, and manner for conducting the inspection and performing the related acts.

(3) The party upon whom the request is served shall serve a written response within twenty days after the service of the request, or within such shorter or longer time as the board or the administrative law judge may allow. The response shall state, with respect to each item or category, that the inspection and related activities will be permitted as requested, unless the request is objected to, in which case the reason for the objection shall be stated. If an objection is made to part of an item or category, that part shall be specified. The party submitting the request may move for an order under paragraph (I) of this rule with respect to any objection or other failure to respond to a request or any part thereof, or any failure to permit inspection as requested.

(4) Where a request calls for the production of a public document on file in this state, or a document which the party upon whom the request is served has furnished to the party submitting the request within the preceding twelve months, it is a sufficient response to such request to specify the location of the document or the circumstances under which the document was furnished to the party submitting the request.

(G) Request for admission.

(1) Any party may serve upon any other party a written request for the admission, for purposes of the pending proceeding only, of the truth of any specific matter within the scope of discovery set forth in paragraph (A) of this rule, including the genuineness of any documents described in the request. Copies of any such documents shall be served with the request unless they are or have been otherwise furnished for inspection or copying.

(2) Each matter for which an admission is requested shall be separately set forth. The matter is admitted unless, within twenty days after the service of the request, or within such shorter or longer time as the board or the administrative law judge may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection, signed by the party or by his or her attorney. If an objection is made, the reasons therefor shall be stated. The answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully make an admission or denial. A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify his or her answer or deny only part of the matter of which an admission is requested, the party shall specify that portion which is true and qualify or deny the remainder. An answering party may not give lack of information as a reason for failure to admit or deny a matter unless the party states that he or she has made reasonable inquiry and that information known or readily obtainable is insufficient to enable him or her to make an admission or denial. A party who considers the truth of a matter of which an admission has been requested to be a genuine issue for the hearing may not, on that basis alone, object to the request, but may deny that matter or set forth the reasons why an admission or denial cannot be made.

(3) Any party who has requested an admission may move for an order under paragraph (I) of this rule with respect to any answer or objection. Unless it appears that an objection is justified, the board or the administrative law judge shall order that an answer be served. If an answer fails to comply with the requirements of this rule, the board or the administrative law judge may:

(a) Order that the matter be admitted for purposes of the pending proceeding.

(b) Order that an amended answer be served.

(c) Determine that final disposition of the matter should be deferred until a prehearing conference or some other designated time prior to the commencement of the hearing.

(4) Unless otherwise ordered by the board or the administrative law judge, any matter admitted under this rule is conclusively established against the party making the admission, but such admission may be rebutted by evidence offered by any other party. An admission under this rule is an admission for the purposes of the pending proceeding only and may not be used for any other purposes.

(H) Motions for protective orders.

(1) Upon motion of any party or person from whom discovery is sought, the board or the administrative law judge may issue any order which is necessary to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense. Such a protective order may provide that:

(a) Discovery not be had.

(b) Discovery may be had only on specified terms and conditions.

(c) Discovery may be had only by a method of discovery other than that selected by the party seeking discovery.

(d) Certain matters not be inquired into.

(e) The scope of discovery be limited to certain matters.

(f) Discovery be conducted with no one present except persons designated by the board or the administrative law judge.

(g) A trade secret or other confidential research, development, commercial, or other information not be disclosed or be disclosed only in a designated way.

(h) Information acquired through discovery be used only for purposes of the pending proceeding, or that such information be disclosed only to designated persons or classes of persons.

(2) No motion for a protective order shall be filed under this rule until the person or party seeking the order has exhausted all other reasonable means of resolving any differences with the party seeking discovery. A motion for a protective order shall be accompanied by:

(a) A memorandum in support, setting forth the specific basis of the motion and citations to any authorities relied upon.

(b) Copies of any specific discovery request which are the subject of the request for a protective order.

(c) An affidavit of counsel, or of the person seeking a protective order if such person is not represented by counsel, setting forth the efforts which have been made to resolve any differences with the party seeking discovery.

(3) If a request for a protective order is denied in whole or in part, the board or the administrative law judge may require that the party or person seeking the order provide or permit discovery on such terms and conditions as are just.

(4) Upon motion of any party or person filing a document with the board's docketing division relative to a case before the board, the board or the administrative law judge assigned to the case may issue any order which is necessary to protect the confidentiality of information contained in the document, to the extent that state or federal law prohibits release of the information, including where it is determined that both of the following criteria are met: The information is deemed by the board or administrative law judge assigned to the case to constitute a trade secret under Ohio law, and where non-disclosure of the information is not inconsistent with the purpose of Title 49 of the Revised Code. Any order issued under this paragraph shall minimize the amount of information protected from public disclosure. The following requirements apply to a motion filed under this paragraph.

(a) All documents submitted pursuant to paragraph (H) of this rule should be filed with only such information redacted as is essential to prevent disclosure of the allegedly confidential information. Such redacted documents should be filed with the otherwise required number of copies for inclusion in the public case file.

(b) Three unredacted copies of the allegedly confidential information shall be filed under seal, along with a motion for protection of the information, with the chief of the docketing division, or the chief's designee. Each page of the allegedly confidential material filed under seal must be marked as "Confidential," "Proprietary", or "Trade Secret".

(c) The motion for protection of allegedly confidential information shall be accompanied by a memorandum in support setting forth the specific basis of the motion, including a detailed discussion of the need for protection from disclosure, and citations of any authorities relied upon. The motion and memorandum in support shall be made part of the public record of the proceeding.

(5) Pending a ruling on a motion filed in accordance with paragraph (H) of this rule, the information filed under seal will not be included in the public record of the proceeding or disclosed to the public until otherwise ordered or released pursuant to this rule. The board and its employees will undertake reasonable efforts to maintain the confidentiality of the information pending a ruling on the motion. A document or portion of a document filed with the docketing division that is marked "Confidential", "Proprietary", "Trade Secret", or with any other such marking, will not be afforded confidential treatment and protected from disclosure unless it is filed in accordance with paragraph (H) of this rule.

(6) Unless otherwise ordered, any order prohibiting public disclosure pursuant to paragraph (E)(4) of this rule shall automatically expire eighteen months after the date of its issuance, and such information may then be included in the public record of the proceeding. A party wishing to extend a protective order beyond eighteen months shall file an appropriate motion and shall include a detailed discussion of the need for continued protection from disclosure.

(I) Motions to compel discovery.

(1) Any party, upon reasonable notice to all other parties and any persons affected thereby, may move for an order compelling discovery, with respect to:

(a) Any failure of a party to answer an interrogatory served under paragraph (D) of this rule.

(b) Any failure of a party to produce a document or tangible thing or permit entry upon land or other property as requested under paragraph (F) of this rule.

(c) Any failure of a deponent to appear or to answer a question propounded under paragraph (E) of this rule.

(d) Any other failure to answer or respond to a discovery request made under paragraphs (D) to (G) of this rule.

(2) For purposes of this rule, an evasive or incomplete answer shall be treated as a failure to answer.

(3) No motion to compel discovery shall be filed under this rule until the party seeking discovery has exhausted all other reasonable means of resolving any differences with the party or person from whom discovery is sought. A motion to compel discovery shall be accompanied by:

(a) A memorandum in support, setting forth:

(i) The specific basis of the motion, and citations of any authorities relied upon.

(ii) A brief explanation of how the information sought is relevant to the pending proceeding.

(iii) Responses to any objections raised by the party or person from whom discovery is sought.

(b) Copies of any specific discovery requests which are the subject of the motion to compel, and copies of any responses or objections thereto.

(c) An affidavit of counsel, or of the party seeking to compel discovery if such party is not represented by counsel, setting forth the efforts which have been made to resolve any differences with the party or person from whom discovery is sought.

(4) The board or the administrative law judge may grant or deny the motion in whole or in part. If the motion is denied in whole or in part, the board or the administrative law judge may issue such protective order as would be appropriate under paragraph (H) of this rule.

(5) Any order of the administrative law judge granting a motion to compel discovery in whole or in part may be appealed to the board in accordance with rule 4906-7-15 of the Administrative Code. If no application for review is filed within the time limit set forth in that rule, the order of the administrative law judge becomes the order of the board.

(6) If any party or person disobeys an order of the board compelling discovery, the board may:

(a) Seek appropriate judicial relief against the disobedient person or party under section 4903.04 of the Revised Code.

(b) Prohibit the disobedient party from further participation in the pending proceeding.

(c) Prohibit the disobedient party from supporting or opposing designated claims or defenses, or from introducing evidence or conducting cross-examination on designated matters.

(d) Dismiss the pending proceeding if such proceeding was initiated by an application or petition, unless such a dismissal would unjustly prejudice any other party.

(e) Take such other action as the board considers appropriate.

Effective: 01/25/2009
R.C. 119.032 review dates: 11/10/2008 and 11/30/2013
Promulgated Under: 111.15
Statutory Authority: 4906.03
Rule Amplifies: 4903.06 , 4903.082 , 4906.03 , 4906.12
Prior Effective Dates: 12/27/76, 7/7/80, 6/10/89, 8/28/98, 12/15/03

4906-7-08 Subpoenas.

(A) The board, any board member empowered to vote, or the administrative law judge assigned to a case may issue subpoenas, upon their own motion or upon motion of any party or the staff. A subpoena shall command the person to whom it is directed to attend and give testimony at the time and place specified therein. A subpoena may also command such a person to produce the books, papers, documents, or other tangible things described therein. A copy of the motion for a subpoena and the subpoena itself should be submitted to the board, any board member entitled to vote, or the administrative law judge assigned to the case for signature of the subpoena. A copy of the motion for a subpoena and a copy of the signed subpoena shall be docketed and served upon the parties of the case.

(B) Arranging for service of a signed subpoena is the responsibility of the requesting person. A subpoena may be served by a sheriff, deputy sheriff, or any other person who is not less than eighteen years of age. Service of a subpoena upon a person named therein shall be made by delivering a copy to such person, or by reading it to him or her in person, or by leaving a copy at his or her place of work or residence. A subpoena may be served at any place within this state. The person serving the subpoena shall file a return thereof with the docketing division.

(C) The board or the administrative law judge may, upon their own motion or upon motion of any party, quash a subpoena if it is unreasonable or oppressive, or condition the denial of such a motion upon the advancement by the party on whose behalf the subpoena was issued of the reasonable costs of producing the books, papers, documents, or other tangible things described therein.

(D) A subpoena may require a person, other than a member of the board staff, to attend and give testimony at a deposition, and to produce designated books, papers, documents, or other tangible things within the scope of discovery set forth in paragraph (A) of rule 4906-7-07 of the Administrative Code. Such a subpoena is subject to the provisions of paragraph (H) of rule 4906-7-07 of the Administrative Code as well as paragraph (C) of this rule.

(E) Unless otherwise ordered for good cause shown, all motions for subpoenas requiring the attendance of witnesses at a hearing must be filed with the board no later than five days prior to the commencement of the hearing.

(F) Any persons subpoenaed to appear at a board hearing, other than a party or an officer, agent, or employee of a party, shall receive the same witness fees and mileage expenses provided in civil actions in courts of record. For purposes of this paragraph, the term "employee" includes consultants and other persons retained or specially employed by a party for purposes of the proceeding. If the witness is subpoenaed at the request of one or more parties, the witness fees and mileage expenses shall be paid by such party or parties. If the witness is subpoenaed upon motion of the board, any board member entitled to vote, or the administrative law judge, the witness fees and mileage expenses shall be paid by the state, in accordance with section 4903.05 of the Revised Code. Unless otherwise ordered, an application for a subpoena requiring the attendance of a witness at a hearing shall be accompanied by a deposit sufficient to cover the required witness fees and mileage expenses for one day's attendance. The deposit shall be tendered to the fiscal officer of the board, who shall retain it until the hearing is completed, at which time the officer shall pay the witness the necessary fees and expenses, and shall either charge the party making the deposit for any deficiency or refund to such party any surplus remaining from the deposit.

(G) If any person fails to obey a subpoena issued by the board, any board member entitled to vote or an administrative law judge, the board may seek appropriate judicial relief against such person under section 4903.02 or 4903.04 of the Revised Code.

(H) A sample subpoena is provided in the appendix to this rule.

Appendix

Before the Ohio Power Siting Board

SUBPOENA

TO:

____________________________________

____________________________________

____________________________________

Upon application of __________________________________________, you are hereby required to appear before the Ohio Power Siting Board as a witness for ___________________________________________________ in the following proceeding:

Case No. ____________________________

Case Title ___________________________________________________________

____________________________________________________________________

____________________________________________________________________

You are to appear at the offices of the Board, 180 East Broad Street, ___ Floor, Columbus,Ohio, on the ___ day of ___________________, 20 ___, at ________ o'clock, ___.m. You shall bring with you the following:

____________________________________________________________________

____________________________________________________________________

____________________________________________________________________

Dated at Columbus, Ohio, this _____ day of ___________________, 20___.

____________________________________

Replaces rule 4906-7-08CaseNo.86-1440-GE-BRO; Eff 12-27-76; 6-10-89; 12-15-03
Rule promulgated under: RC 111.15
Rule authorized by: RC 4906.03
Rule amplifies: RC 4906.08 , 4906.12 , 4906.03 , 4903.04 , 4903.05 , 4903.06
R.C. 119.032 review dates: 11/10/2008 and 09/30/2013

4906-7-09 Stipulations.

Any two or more parties may enter into a written or oral stipulation concerning issues of fact or the authenticity of documents.

(A) A written stipulation must be signed by all of the parties joining therein, and must be filed with the board and served upon all parties to the proceeding.

(B) An oral stipulation may be made only during a public hearing or record prehearing conference, and all parties joining in such a stipulation must acknowledge their agreement thereto on the record. The board or the administrative law judge may require that an oral stipulation be reduced to writing and filed and served in accordance with paragraph (A) of this rule.

(C) No stipulation shall be considered binding upon the board.

Effective: 06/19/2009
R.C. 119.032 review dates: 11/30/2013
Promulgated Under: 111.15
Statutory Authority: 4906.03
Rule Amplifies: 4906.03 , 4906.06 , 4906.08 , 4906.09 , 4906.12
Prior Effective Dates: 12/27/76, 7/7/80, 6/10/89, 8/28/98, 12/15/03, 1/25/09

4906-7-10 Prehearing conferences.

(A) In any proceeding, the board or the administrative law judge may, upon motion of any party or upon their own motion, hold one or more prehearing conferences for the purpose of:

(1) Resolving outstanding discovery matters, including:

(a) Ruling on pending motions to compel discovery or motions for protective orders.

(b) Establishing a schedule for the completion of discovery.

(2) Ruling on any other pending procedural motions.

(3) Identifying the witnesses to be presented in the proceeding and the subject matter of their testimony.

(4) Identifying and marking exhibits to be offered in the proceeding.

(5) Discussing possible admissions or stipulations regarding issues of fact or the authenticity of documents.

(6) Clarifying the issues involved in the proceeding.

(7) Discussing or ruling on any other procedural matter which the board or the administrative law judge considers appropriate.

(B) Reasonable notice of any prehearing conference shall be provided to all parties. Unless otherwise ordered for good cause shown, the failure of a party to attend a prehearing conference constitutes a waiver of any objection to the agreements reached or rulings made at such conference.

(C) Following the conclusion of a prehearing conference, the board or the administrative law judge may issue an appropriate prehearing order, reciting or summarizing any agreements reached or rulings made at such conference. Unless otherwise ordered for good cause shown, such order shall be binding upon all persons who are or subsequently become parties, and shall control the subsequent course of the proceeding.

Eff 12-27-76; 6-10-89; 8-28-98; 12-15-03
Rule promulgated under: RC 111.15
Rule authorized by: RC 4906.03
Rule amplifies: RC 4906.03 , 4906.12 , 4903.22
R.C. 119.032 review dates: 11/10/2008 and 09/30/2013

4906-7-11 Practice before the board and designation of trial attorney and spokesperson.

(A) Except as otherwise provided in paragraphs (B), (C), and (D) of this rule, each party shall be represented by an attorney at law authorized to practice before the courts of this state, with the exception of an individual person who is appearing on his or her own behalf.

(B) Persons authorized to practice law in other jurisdictions may be permitted to appear before the board in a particular proceeding upon motion of an attorney of this state.

(C) Certified legal interns may appear before the board under the direction of a supervising attorney in accordance with rule II of the "Supreme Court Rules for the Government of the Bar of Ohio." No legal intern shall participate in a board hearing in the absence of the supervising attorney without:

(1) The written consent of the supervising attorney.

(2) The approval of the board or the administrative law judge.

(D) In cases where there are numerous parties whose interests are substantially similar, the board or the administrative law judge may permit or require the designation of a spokesperson or consolidation of representation.

(E) Where a party is represented by more than one attorney, one of the attorneys shall be designated as the "trial attorney," who shall have principal responsibility for the party's participation in the proceeding. The designation "trial attorney" shall appear following the name of that attorney on all pleadings or papers submitted on behalf of the party.

(F) No attorney shall withdraw from a board proceeding without prior written notice to the board and shall serve a copy of the notice upon the parties to the proceeding.

Eff 12-27-76; 6-10-89; 8-28-98; 12-15-03
Rule promulgated under: RC 111.15
Rule authorized by: RC 4906.03 ,
Rule amplifies: RC 4906.09 , 4906.08 , 4906.03 , 4906.12
R.C. 119.032 review dates: 11/10/2008 and 09/30/2013

4906-7-12 Motions.

(A) All motions, unless made at a public hearing or transcribed prehearing conference, or unless otherwise ordered for good cause shown, shall be in writing and shall be accompanied by a memorandum in support. The memorandum in support shall contain a brief statement of the grounds for the motion and citations of any authorities relied upon.

(B) Except as otherwise provided in paragraphs (C) and (F) of this rule:

(1) Any party may file a memorandum contra within fifteen days after the service of a motion, or such other period as the board or the administrative law judge requires.

(2) Any party may file a reply memorandum within seven days after the service of a memorandum contra, or such other period as the board or the administrative law judge requires.

(C) Any motion may include a specific request for an expedited ruling. The grounds for such a request shall be set forth in the memorandum in support. If the motion requests an extension of time to file pleadings or other papers of five days or less, an immediate ruling may be issued without the filing of memoranda. In all other cases, the party requesting an expedited ruling must first contact all other parties to determine whether any party objects to the issuance of such a ruling without the filing of memoranda. If the moving party certifies that no party objects to the issuance of such a ruling, an immediate ruling may be issued. If any party objects to the issuance of such a ruling, or if the moving party fails to certify that no party has any objections, any party may file a memorandum contra within seven days after the service of the motion, or such other period as the board or the administrative law judge requires. No reply memoranda shall be filed in such cases unless specifically requested by the board or the administrative law judge.

(D) All written motions and memoranda shall be filed with the board and served upon all parties in accordance with rule 4906-7-06 of the Administrative Code.

(E) For purposes of this rule, the term "party" includes all persons who have filed notices or petitions to intervene which are pending at the time a motion or memorandum is to be filed or served.

(F) Notwithstanding paragraphs (B) and (C) of this rule, the board or the administrative law judge may, upon their own motion, issue an expedited ruling on any motion, with or without the filing of memoranda, where the issuance of such a ruling will not adversely affect a substantial right of any party.

(G) The administrative law judge may direct that any motion made at a public hearing or transcribed prehearing conference be reduced to writing and filed and served in accordance with this rule.

Eff 12-27-76; 6-10-89; 8-28-98; 12-15-03
Rule promulgated under: RC 111.15
Rule authorized by: RC 4906.03
Rule amplifies: RC 4906.03 , 4906.12 , 4906.09 , 4906.08 , 4906.06 , 4903.22
R.C. 119.032 review dates: 11/10/2008 and 09/30/2013

4906-7-13 Continuances and extensions of time.

(A) Except as otherwise provided by law, and notwithstanding any other provision in this chapter, continuances of hearings and extensions of time to file pleadings or other papers may be granted upon motion of any party for good cause shown, or upon motion of the board or the administrative law judge.

(B) A motion for an extension of time to file a document must be timely filed so as to permit the board or administrative law judge sufficient time to consider the request and to make a ruling prior to the established filing date. If two or more parties have similar documents due the same day and a party intends to seek an extension of the filing date, the moving party must file its motion for an extension sufficiently in advance of the existing filing date so that other parties who might be disadvantaged by submitting their filing prior to the movant submitting its filing will not be disadvantaged. If two or more parties have similar documents due the same day and the motion for an extension is filed fewer than five business days before the document is scheduled to be filed, then the moving party, in addition to regular service of the motion for an extension, must provide a brief summary of the request to all other parties orally, by facsimile transmission, or by electronic message by no later than five-thirty p.m. on the day the motion is filed.

(C) A copy of any written ruling granting or denying a request for a continuance or extension of time shall be served upon all parties to the proceeding.

(D) Nothing in this rule restricts or limits the authority of the administrative law judge to issue oral rulings during public hearings or transcribed prehearing conferences.

Effective: 01/25/2009
R.C. 119.032 review dates: 11/10/2008 and 11/30/2013
Promulgated Under: 111.15
Statutory Authority: 4906.03
Rule Amplifies: 4906.03 , 4906.07 , 4906.12 , 4903.22
Prior Effective Dates: 12/27/76, 6/10/89, 8/28/98, 12/15/03

4906-7-14 Procedural rulings.

The board or the administrative law judge may rule, in writing, upon any procedural motion or other procedural matter. A copy of any such ruling shall be served upon all parties to the proceeding.

R.C. 119.032 review dates: 11/10/2008 and 09/30/2013

Promulgated Under: 111.15

Statutory Authority: 4906.03

Rule Amplifies: 4906.02, 4906.12, 4906.03

Prior Effective Dates: 12/27/76, 7/7/80, 6/10/89

4906-7-15 Interlocutory appeals.

(A) Any party who is adversely affected thereby may take an immediate interlocutory appeal to the board from any ruling issued under rule 4906-7-14 of the Administrative Code or any oral ruling issued during a hearing or prehearing conference which:

(1) Grants a motion to compel discovery or denies a motion for a protective order.

(2) Denies a motion to intervene or terminates a party's right to participate in a proceeding.

(3) Refuses to quash a subpoena.

(4) Requires the production of documents or testimony over an objection based on privilege.

(B) Except as provided in paragraph (A) of this rule, no party may take an interlocutory appeal from any ruling issued under rule 4906-7-14 of the Administrative Code or any oral ruling issued during a hearing or prehearing conference unless the appeal is certified to the board by the administrative law judge. The administrative law judge shall not certify such an appeal unless he or she finds that:

(1) The appeal presents a new or novel question of law or policy.

(2) An immediate determination by the board is needed to prevent the likelihood of undue prejudice or expense to one or more of the parties, should the board ultimately reverse the ruling in question.

(C) Any party wishing to take an interlocutory appeal from any ruling must file an application for review with the board within five days after the ruling is issued. An extension of time for the filing of an interlocutory appeal may be granted only under extraordinary circumstances. The application for review shall set forth the basis of the appeal and citations of any authorities relied upon. A copy of the ruling or the portion of the record which contains the ruling shall be attached to the application for review. If the record is unavailable, the application for review must set forth the date the ruling was issued and must describe the ruling with reasonable particularity.

(D) Unless otherwise ordered by the board, any party may file a memorandum contra within five days after the filing of any application for review.

(E) Upon consideration of an interlocutory appeal, the board may, in its discretion:

(1) Affirm, reverse, or modify the ruling of the administrative law judge.

(2) Dismiss the appeal, if the board is of the opinion that:

(a) The issues presented are moot.

(b) The party taking the appeal lacks the requisite standing to raise the issues presented or has failed to show prejudice as a result of the ruling in question.

(c) The issues presented should be deferred and raised at some later point in the proceeding.

(F) Any party that is adversely affected by a ruling issued under rule 4906-7-14 of the Administrative Code or any oral ruling issued during a public hearing or prehearing conference and that (1) elects not to take an interlocutory appeal from the ruling or (2) files an interlocutory appeal that is not certified by the administrative law judge may still raise the propriety of that ruling as an issue for the board's consideration by discussing the matter as a distinct issue in its initial brief or in any other appropriate filing prior to the issuance of the board's order in the case.

Effective: 01/25/2009
R.C. 119.032 review dates: 11/10/2008 and 11/30/2013
Promulgated Under: 111.15
Statutory Authority: 4906.03
Rule Amplifies: 4906.03 , 4906.12 , 4903.22
Prior Effective Dates: 12/27/76, 6/10/89, 8/28/98, 12/15/03

4906-7-16 Administrative law judge reports and exceptions thereto.

(A) If ordered by the board the administrative law judge shall prepare a written report of his or her findings, conclusions, and recommendations following the conclusion of the hearing. Such report shall be filed with the board and served upon all parties.

(B) Any party may file exceptions to a an administrative law judge's report within twenty days after such report is filed with the board. Exceptions shall be stated and numbered separately, and shall be accompanied by a memorandum in support, setting forth the basis of the exceptions and citations of any authorities relied upon. If any exception relates to one or more findings of fact, the memorandum in support should, where practicable, include specific citations to any portions of the record relied upon in support of the exception.

(C) Any party may file a reply to another party's exceptions within fifteen days after the service of those exceptions.

R.C. 119.032 review dates: 11/10/2008 and 09/30/2013

Promulgated Under: 111.15

Statutory Authority: 4906.03

Rule Amplifies: 4906.12, 4906.03, 4903.22

Prior Effective Dates: 12/27/76, 7/7/80, 6/10/89, 8/28/98

4906-7-17 Decision by the board.

(A) Within a reasonable time after the conclusion of the hearing, service of the report of the administrative law judge, if any, and the filing of any exceptions and replies to the exceptions, the board shall issue a final decision based only on the record, including such additional evidence as it shall order admitted.

(1) The board may determine that the location of all or part of the proposed facility should be modified.

(a) If it so finds, it may condition its certificate upon such modifications.

(b) Persons and municipal corporations shall be given reasonable notice thereof, in accordance with the provisions of paragraph (A)(3) of this rule.

(2) Specific citation in Chapters 4906-13, 4906-15, and 4906-17 of the Administrative Code with regard to a certificate application complying with building codes and boiler pressure piping, and elevator inspections and evaluations conducted by a statutorily empowered state agency, shall not be deemed to prohibit the board from issuing a certificate conditioned upon an applicant complying with other state or local statutes, ordinances, and regulations which are designed to protect the public health, welfare, and safety.

(3) The decision of the board shall be entered on the board journal and into the record of the hearing. Copies of the decision or order shall be served on all attorneys of record and all unrepresented parties in the proceedings by ordinary mail.

(B) In its deliberations, the board may order the parties to submit briefs on such issues as it addresses to the parties within such time limits as the board shall prescribe. The board may also schedule oral arguments before it.

(C) Applications for reopening a proceeding after final submission but before a final order has been issued shall be by petition, and shall set forth specifically the grounds upon which such application is based. If such application is to reopen the proceeding for further evidence, the nature and purpose of such evidence must be briefly stated, including a statement why such evidence was not available at the time of hearing, and the evidence must not be merely cumulative.

(D) Any party or any affected person, firm, or corporation may file an application for rehearing, within thirty days after the issuance of a board order, in the manner and form and circumstances set forth in section 4903.10 of the Revised Code. An application for rehearing must set forth the specific ground or grounds upon which the applicant considers the board order to be unreasonable or unlawful. An application for rehearing must be accompanied by a memorandum in support, which sets forth an explanation of the basis for each ground for rehearing identified in the application for rehearing and which shall be filed no later than the application for rehearing.

(E) Any party may file a memorandum contra within ten days after the filing of an application for rehearing.

(F) As provided in section 4903.10 of the Revised Code, all applications for rehearing must be submitted within thirty days after an order has been journalized by the secretary of the board.

(G) A party or any affected person, firm, or corporation may only file one application for rehearing to a board order within thirty days following the entry of the order upon the journal of the board.

(H) An application for rehearing filed under section 4903.10 of the Revised Code, or a memorandum contra an application for rehearing filed pursuant to this rule may not be delivered via facsimile transmission.

(I) The board, the chairman of the board, or the administrative law judge may issue an order granting rehearing for the purpose of affording the board more time to consider the issues raised in an application for rehearing.

Effective: 05/07/2009
R.C. 119.032 review dates: 11/30/2013
Promulgated Under: 111.15
Statutory Authority: 4906.03 , 4906.20
Rule Amplifies: 4903.22 , 4906.03 , 4906.10 , 4906.11 , 4906.12 , 4906.20
Prior Effective Dates: 12/27/76, 6/10/89, 8/28/98, 12/15/03, 1/25/09

4906-7-18 Supreme court appeals.

Consistent with the requirements of section 4903.13 of the Revised Code, a notice of appeal of a board order to the Ohio supreme court must be filed with the board's docketing division within the time period prescribed by the court and served upon the chairman of the board or, in his absence, upon any voting board member, or by leaving a copy at the offices of the board. A notice of appeal of a board order to the Ohio supreme court may not be delivered via facsimile transmission.

Effective: 01/25/2009
R.C. 119.032 review dates: 11/10/2008 and 11/30/2013
Promulgated Under: 111.15
Statutory Authority: 4906.03
Rule Amplifies: 4903.11 , 4903.12 , 4903.13 , 4906.03 , 4906.12
Prior Effective Dates: 12/27/76, 6/10/89, 8/28/98, 12/15/03

4906-7-19 General provisions.

(A) This chapter sets forth the procedural standards which apply to all persons or entities participating in cases before the board.

(B) The board may, for good cause shown, waive any requirement, standard, or rule set forth in this chapter or prescribe different practices or procedures to be followed in a case.

Effective: 01/25/2009
R.C. 119.032 review dates: 11/30/2013
Promulgated Under: 111.15
Statutory Authority: 4906.03
Rule Amplifies: 4906.03 , 4906.06