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Rule 4906-2-01 | Purpose and scope.
(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, upon its own motion, or upon an application or motion filed by a party, waive any requirement of this chapter other than a requirement mandated by statute. Last updated May 30, 2024 at 9:08 AM Supplemental Information |
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Rule 4906-2-02 | Filing of pleadings and other documents.
(A) General provisions (1) The principal office of the board is located within the office of the public utilities commission of Ohio. The official address of the board is: 180 East Broad street, Columbus, Ohio 43215-3793. (2) Filings for the board shall be addressed to: "Ohio Power Siting Board, Docketing Division, 180 East Broad Street, Columbus, Ohio 43215-3797." (3) The internet address of the docketing division is http://dis.puc.state.oh.us. (4) The docketing division is open from seven-thirty a.m. to five-thirty p.m., Monday through Friday, except on state holidays. (5) Except as discussed in paragraph (D) of this rule, no document shall be considered filed with the board until it is received and date-stamped by the docketing division. (6) The board reserves the right to redact any material from a filed document prior to posting the document on the docketing information system if the board finds the material to be confidential personal information, a trade secret, or inappropriate for posting to its website. (7) A party seeking to consolidate a new case with one or more previously filed cases, or with cases being concurrently filed, shall file a motion to consolidate the cases. (B) Paper filing (1) All applications, complaints, reports, pleadings, or other documents to be paper filed with the board shall be mailed or delivered to the docketing division at the address shown in paragraph (A) of this rule. In addition to the original, any person paper filing a document for inclusion in a case file must submit the required number of copies of the document. Information regarding the number of copies required by the board is available under procedural filing requirements on the docketing information system website, by calling the docketing division at 614-466-4095, or by visiting the docketing division at the offices of the commission. Failure to submit the required copies may result in the document being stricken from the case file. An administrative law judge may require a party to provide additional paper copies of any filed document. (2) Unless a request for a protective order is made in accordance with rule 4906-2-21 of the Administrative Code, concurrent with or prior to receipt of the document by the docketing division, any document filed with the docketing division will be made publicly available on the docketing information system. (C) Facsimile transmission (fax) filing A person may file documents with the board via fax under the following conditions: (1) The following documents may not be delivered via fax: (a) The application or other initial pleading that is responsible for the opening of a case. (b) Any document for which protective or confidential treatment is requested under rule 4906-2-21 of the Administrative Code. (c) A notice of appeal of a board order to the Ohio supreme court filed pursuant to section 4903.13 of the Revised Code or service of that notice upon the chairperson. (2) All documents sent via fax must include a transmission sheet that states the case number, case title, date of transmission, number of pages, brief description of the document, and the name and telephone number of the sender. (3) The originator of a fax document must contact the docketing division at (614) 466-4095 prior to sending a fax. A person must notify the docketing division of its intent to send a document by fax by five p.m. on the date the document is to be sent. The person must be prepared to commence transmission at the time the docketing division is notified. (4) All documents must be sent to the fax machine in the docketing division at (614) 466-0313. If that machine is inoperable, directions for alternative arrangements will be given when the originator calls to commence a fax. Unrequested documents sent to any of the board's other facsimile machines will not be relayed to the docketing division by board employees. (5) Excluding the transmission sheet, all documents transmitted by fax must be thirty pages or less. (6) All documents must be legible when received. Illegible documents received via fax will not be filed. If the document is illegible, the docketing division will attempt to contact the sender to resolve the problem. The person making a fax filing shall bear all risk of transmission, including all risk of equipment, electric, or telephonic failure or equipment overload or backup. Any document sent by fax that is received in whole or in part after five-thirty p.m. will be considered filed the next business day. (7) No document received via fax will be given confidential treatment by the board. (8) If a document is delivered via fax, the party must make arrangements for the original signed document and the required number of copies of the pleading to be delivered to the board no later than the next business day. Failure to comply with this requirement may result in the document being stricken from the case file. (9) Because a document sent to the board by fax will be date-stamped, and thus filed, the day it is received by the docketing division, the originator of the document shall serve copies of the document upon other parties to the case no later than the date of filing. (D) Electronic filing (e-file) A person may e-file documents with the board under the following conditions: (1) All filings must comply with the electronic filing manual and technical requirements at the docketing information system website and any additional guidelines provided by the board. (2) All filings must be searchable and the electronic file must be able to be reproduced in hard copy at the same quality as the original. (3) The service of a notice of appeal of a board order pursuant to section 4903.13 of the Revised Code upon the chairperson shall not be delivered via e-filing: (4) An applicant may electronically file a certificate application pursuant to section 4906.06 of the Revised Code containing the full electronic copy of the application. The applicant also shall submit three complete paper copies of the application to the docketing division on the same day that an e-filing of the application is made and will be expected to provide additional paper copies or electronic copies upon request. (5) Provided that a document is not subsequently rejected by the docketing division, an e-filed document will be considered filed as of the date and time recorded on the confirmation page that is electronically inserted as the last page of the filing upon receipt by the docketing division, except that any e-filed document received after five-thirty p.m. shall be considered filed at seven-thirty a.m. the next business day. The docketing division may reject any filing that does not comply with the electronic filing manual and technical requirements, is unreadable, includes anything deemed inappropriate for inclusion on the docketing information system, or is submitted for filing in a closed or archived case. If an e-filing is rejected by the docketing division, an email message will be sent to inform the filer of the rejection and the reason for the rejection. (6) If an e-filing is accepted, notice of the filing will be sent via electronic mail to all persons who have electronically subscribed to the case, including the filer. This email notice will constitute service of the e-filed document upon those persons electronically subscribed to the case. Upon receiving the email notice that the e-filed document has been accepted by the docketing division, the filer shall serve copies of the document in accordance with rule 4906-2-05 of the Administrative Code upon parties to the case who are not electronically subscribed to the case. (7) The docketing division closes at five-thirty p.m. To allow time for same-day review and acceptance of e-filings, persons making e-filings are encouraged to make their filings by no later than four p.m. (8) The person making an e-filing shall bear all risk of transmitting a document including, but not limited to, all risk of equipment, electric, or internet failure. (9) If an electronic filing of a certificate application cannot be made due to electronic or other problems that prevent either all or part of the certificate application to go through the docketing division equipment, the applicant shall file the three paper copies of the certificate application, five portable solid-state drives containing the complete application, and a geographic information systems data drive with the docketing division in lieu of the electronic filing. The applicant will then have an additional one business day either to complete the electronic filing of the certification application or to provide fifteen more paper copies of the certificate application unless a longer period is granted by the administrative law judge. If the additional paper copies are made timely, the certificate application shall be considered filed on the day the electronic filing could not be made but the three paper copies, the five portable solid state drives, and the geographic information systems data drives were filed. (10) E-filed documents must be complete documents. Appendices or attachments to an e-filed document may not be filed by other methods without prior approval. Large documents may be e-filed in parts as long as all parts are e-filed on the same day. (11) Except as otherwise provided by this rule or directed by an administrative law judge, a person filing a document electronically need not submit any paper copy of an e-filed document to the docketing division. (E) The docketing division designates the status of each case under the case number and case name on the docket card. As discussed in this rule, attempts to make filings in certain designated cases will be denied. (1) An open case is an active case in which filings may be made. (2) A closed case is one in which no further filings may be made without the consent of the administrative law judge. When a case is closed, any person seeking to make a filing in a case must first contact the administrative law judge assigned to the case. If the administrative law judge agrees to permit the filing, the docketing division will be notified to reopen the case. If an additional filing is permitted, the case status will be changed to open and service of the filing must be made by the filer upon the parties to the case in accordance with rule 4906-2-05 of the Administrative Code. (3) An archived case is a closed case that will not be reopened and in which no further filings will be permitted. If additional activity is thereafter required on any matter addressed in an archived case, the board will open a new case and designate the new case as a related case. The docketing information system displays for each case a related cases tab to provide a link to related cases. (4) A reserved case is one set aside for future use. No filings should be made in the case until the party for who it was reserved makes an initial filing. (5) A void case is one that was opened in error and no documents may be filed in it. Last updated May 30, 2024 at 9:08 AM Supplemental Information |
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Rule 4906-2-03 | Form of pleadings and other papers.
(A) Except as provided by rule 4906-2-04 of the Administrative Code, all pleadings or other papers to be filed with the board shall contain a caption or cover sheet setting forth the name of the board, the title of the proceeding, and the nature of the pleading or paper. All pleadings or papers filed subsequently to the original filing or board entry initiating the proceeding shall contain the case name and docket number of the proceeding. Such pleadings or other papers shall also contain the name, address, and telephone number of the person filing the paper, or the name, address, telephone number, and attorney registration number of his or her attorney, if such person is represented by counsel. The party making a filing should include a fax number and/or an email address if the party is willing to accept service of pleadings by fax or email. An attorney or party who is willing to accept service of filed documents by fax shall include the following phrase next to or below its fax number: (willing to accept service by fax). An attorney or party who is willing to accept service of filed documents by email shall include the following phrase next to or below its email address: (willing to accept service by email). (B) All pleadings or other papers to be filed with the board shall be printed, typewritten, or legibly handwritten on eight and one-half by eleven-inch paper. Widths of the margins shall be no less than one inch. The impression may be printed on both sides of the page, and shall have at least one and a half line spacing, except that quotations in excess of five typewritten lines shall be single spaced and indented. This requirement does not apply to: (1) Original documents to be offered as exhibits. (2) Copies of original documents to be offered as exhibits, where compliance with this requirement would be impracticable. (3) Forms approved or supplied by the board. (C) Nothing in paragraph (B) of this rule prohibits the filing of photocopies of documents that otherwise meet the requirements of that paragraph. (D) Maps and exhibits that are printed on large format paper (greater than eleven inches by seventeen inches) should be provided in a roll or tube, and not folded. Last updated June 17, 2024 at 10:45 AM Supplemental Information |
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Rule 4906-2-04 | Form and general content requirements for certificate applications.
(A) In addition to the requirements of rule 4906-2-03 of the Administrative Code, the following conditions apply to certificate applications: (1) Each page of the certificate application shall be numbered. (2) Copies of the standard certificate application shall be submitted in hard-cover, loose-leaf binders labeled with the following information: (a) Name of applicant. (b) Name of the proposed facility. (c) Year of submittal of the certificate application. (d) Case number. (3) Each certificate application shall be accompanied by a cover letter containing the following information: (a) Name and address of the applicant. (b) Name and location of the proposed facility. (c) Name and address of the applicant's authorized representative. (d) An explanation of any information that was presented by the applicant in the preapplication notification letter that has been revised by the applicant since the issuance of the letter. (e) Notarized statement that the information contained in the certificate application is complete and correct to the best knowledge, information and belief of the applicant. (B) The information contained within the certificate application shall conform to the requirements of Chapters 4906-4 to 4906-6 of the Administrative Code, whichever is applicable, except that a standard certificate application for a major utility facility which is related to a coal research and development project as defined in section 1555.01 of the Revised Code, or to a coal development project as defined in section 1551.30 of the Revised Code, submitted to the Ohio coal development office for review under division (B)(8) of section 1551.33 of the Revised Code, shall be the full final proposal as accepted by the Ohio coal development office. (C) The following general instructions apply to certificate applications: (1) The costs and benefits of the direct and indirect effects of siting decisions shall be expressed in monetary and quantitative terms whenever doing so is practicable. All responses shall be supported by: (a) An indication of the source of data. (b) The assumptions made. (c) The methods of reaching the conclusions. (d) The justification for selection of alternatives. (2) Information filed by the applicant in response to the requirements of one section without a clear reference to the information that was given in a prior section shall not be deemed responses to any other section of the certificate application requirements. (3) If an applicant asserts that a particular requirement is not applicable to the proposed facility, the applicant must provide an explanation why the requirement is not applicable. (4) Information shall be derived from onsite surveys, as needed, and the best available, most current reference materials. The applicant shall provide all required information for each facility alternative. (5) The applicant may provide a copy of any study produced by or for the applicant for the proposed project as an attachment to the application. The study may be submitted in response to a specific requirement, provided that the information contained therein is responsive to the requirement. A brief summary of the study shall be provided in the body of the application. (6) If the applicant has prepared the required hard copy maps using digital, geographically referenced data, an electronic copy of all such data, excluding data obtained by the applicant under a licensing agreement which prohibits distribution, shall be provided to staff on a portable solid state drive concurrent with submission of the application. (7) All maps shall be produced at a scale such that all required features are legible, with minimal overlap. If a map requires shading or colors to distinguish different classes of the same feature (e.g., land use types), no more than six colors or shading patterns should be used for one set of features. Mapping requirements may be combined in a common map or maps, provided that the common map(s) remain legible and references to the common map(s) are included in the application. Maps shall include a representation of the map scale and the date upon which the map was produced. Last updated May 30, 2024 at 9:08 AM Supplemental Information |
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Rule 4906-2-05 | 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 fax also shall include the fax number of the person to whom the document was transmitted. The certificate of service for a document served by email also shall include the email address of the person to whom the document was sent. (B) If an e-filing is accepted by the docketing division, an email notice of the filing will be sent by the docketing division's e-filing system to all persons who have electronically subscribed to the case. The email notice will constitute service of the document upon the recipient. Upon receiving notice that an e-filing has been accepted by the docketing division, the filer shall serve copies of the document in accordance with this rule upon all other parties to the case who are not served via the email notice. A person making an e-filing shall list in the certificate of service included with the e-filing the parties who will be served by email notice by the docketing division's e-filing system and the parties who will be served by traditional methods by the person making the filing. The certificate of service for an e-filed document shall include the following notice: The docketing division's e-filing system will electronically serve notice of the filing of this document on the following parties: (list the names of the parties referenced on the service list of the docket card who have electronically subscribed to the case). The docketing division shall serve all parties to a proceeding with copies of the staff report in a proceeding. (C) 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 "counsel of record" designated under rule 4906-2-26 of the Administrative Code. (D) Service upon an attorney or party may be personal, by mail, by fax, or by email. 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 documents in the proceeding, the term "last known address" means the address set forth in the most recent pleading or document. (3) Service of a document to an attorney or party by fax may be made only if the person to be served has consented to receive service of the document by fax. Service by fax is complete upon the sender receiving a confirmation generated by the sender's fax equipment that the fax has been sent. The sender shall retain the confirmation as proof of service until the case is completed. (4) Service of a document by email to an attorney or party may be made only if the person to be served has consented to receive service of the document by email. Service by email is complete upon the sender receiving a confirmation generated by the sender's computer that the email has been sent. The sender shall retain the confirmation as proof of service until the case is completed. (E) For purposes of this rule, the term "party" includes all persons who have filed notices or petitions to intervene that are pending at the time a pleading or document is to be served, provided that the person serving the pleading or document has been served with a copy of the notice or petition to intervene. (F) The board or the administrative law judge may order in certain cases that pleadings or documents be served in a specific manner to expedite the exchange of information. Last updated June 17, 2024 at 10:45 AM Supplemental Information |
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Rule 4906-2-06 | Computation of time.
Unless otherwise provided by law or by the board: (A) In computing any period of time prescribed or allowed by the board, the date of the event from which the period of time begins to run shall not be included. Going forward, the last day of the period so computed shall be included, unless it falls on a Saturday, Sunday, or legal holiday, in which case the period of time shall run until the end of the next day which is not a Saturday, Sunday, or legal holiday. Going backwards (e.g., expert testimony shall be filed five days before the start of the hearing), the last day of the period so computed shall be included, unless it falls on a Saturday, Sunday, or holiday, in which case the period of time shall move forward (e.g., toward the start of the hearing) to a day that is not a Saturday, Sunday, or legal holiday. Unless otherwise noted, time is measured in calendar, not business days. (B) If the board office is closed to the public for the entire day that constitutes the last day for doing an act or closes before its usual closing time on that day, the act may be performed on the next succeeding day that is not a Saturday, Sunday, or legal holiday. Last updated June 17, 2024 at 10:45 AM Supplemental Information |
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Rule 4906-2-07 | Continuances and extensions of time.
(A) Except as otherwise provided by law, and notwithstanding any other provision in this chapter, continuances of public 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. Last updated June 17, 2024 at 10:45 AM Supplemental Information |
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Rule 4906-2-08 | Signing of pleadings.
(A) Except for e-filed documents, every notice, motion, petition, complaint, brief, memorandum, or other paper filed by any person shall be signed by that person or by his or her attorney but need not be verified unless specifically required by law or by the board. Persons who e-file documents shall use "/s/" followed by their name to indicate a signature or an electronic signature where applicable. (B) Each application for a certificate shall include a statement, signed by a person having authority with respect thereto, and having knowledge of the matters presented in the certificate application of the company submitting such document, that the statements set forth in the document are true and correct to the best of his/her knowledge, information, and belief. Last updated June 17, 2024 at 10:46 AM Supplemental Information |
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Rule 4906-2-09 | 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 may 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. Last updated June 17, 2024 at 10:46 AM Supplemental Information |
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Rule 4906-2-10 | Ex parte discussion of cases.
Except as provided in section 4906.024, of the Revised Code after a case has been assigned a formal docket number, no board member or 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 chairperson 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. Last updated May 30, 2024 at 9:08 AM Supplemental Information |
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Rule 4906-2-11 | 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 4906-2-12 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 4906-2-05, 4906-2-13, 4906-2-16, 4906-2-22, 4906-2-24, 4906-2-26, 4906-2-27, 4906-2-28, and 4906-2-29 of the Administrative Code, the board staff shall not be considered a party to any proceeding. Last updated June 17, 2024 at 10:46 AM Supplemental Information |
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Rule 4906-2-12 | 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 and the interest of the official in the proceeding, if known. (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 (A)(1) of rule 4906-3-09 of the Administrative Code or in accordance with division (B) of section 4906.08 of the Revised Code or as otherwise directed by the board or the administrative law judge. (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 4906-2-05 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)(1) or (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. Last updated May 30, 2024 at 9:09 AM Supplemental Information |
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Rule 4906-2-13 | 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, board members, administrative law judges, and the staff. Last updated May 30, 2024 at 9:09 AM Supplemental Information |
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Rule 4906-2-14 | General provisions and scope of discovery.
(A) The purpose of rules 4906-2-14 to 4906-2-22 of the Administrative Code is to encourage the prompt and expeditious use of prehearing discovery in order to facilitate thorough and adequate preparation for participation in board proceedings. These rules are intended to minimize board intervention in the discovery process. (B) Except as otherwise provided in 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 rule 4906-2-21 of the Administrative Code. (C) 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 discover 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. (D) Discovery responses which are complete when made need not be supplemented with subsequently acquired information unless: (1) The response did not fully identify each expert witness expected to testify at the hearing and stated the subject matter upon which each expert was expected to testify. (2) The responding party later learned that the response was incorrect or otherwise materially deficient. (3) The response indicated that the information sought was unknown or nonexistent and such information subsequently became known or existent. (4) An order of the board or agreement of the parties provides for the supplementation of responses. (5) Requests for the supplementation of responses are submitted prior to the commencement of the hearing. (E) The supplementation of responses required under paragraph (D) of this rule and requests for supplementation of responses submitted pursuant to paragraph (D)(5) of this rule shall be provided within five business days of discovery of the new information. (F) Nothing in rules 4906-2-14 to 4906-2-22 of the Administrative Code precludes parties from conducting informal discovery by mutually agreeable methods or by stipulation. (G) A discovery request under rules 4906-2-14 to 4906-2-22 of the Administrative Code 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. (H) For purposes of rules 4906-2-14 to 4906-2-22 of the Administrative Code, 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. (I) Rules 4906-2-14 to 4906-2-22 of the Administrative Code do not apply to board staff. (J) Discovery may not be used to harass or delay existing procedural schedules. Last updated June 17, 2024 at 10:50 AM Supplemental Information |
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Rule 4906-2-15 | Time period for discovery.
(A) Discovery may begin immediately after 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. (B) 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. Last updated June 17, 2024 at 10:50 AM Supplemental Information |
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Rule 4906-2-16 | Filing and service of discovery requests and responses.
Except as otherwise provided in rules 4906-2-21 and 4906-2-22 of the Administrative Code or unless otherwise ordered for good cause shown, discovery requests and responses shall be served upon all parties and staff. 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. Last updated June 17, 2024 at 10:50 AM Supplemental Information |
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Rule 4906-2-17 | Interrogatories and response time.
(A) 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 rule 4906-2-22 of the Administrative Code with respect to any objection or other failure to answer an interrogatory. (B) Subject to the scope of discovery set forth in rule 4906-2-14 of the Administrative Code, 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. (C) 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. (D) 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. Last updated June 17, 2024 at 10:51 AM Supplemental Information |
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Rule 4906-2-18 | Depositions.
(A) 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 rule 4906-2-14 of the Administrative Code. The attendance of witnesses and production of documents may be compelled by subpoena as provided in rule 4906-2-23 of the Administrative Code. (B) 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. (C) 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. (D) 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. (E) 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. (F) 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. (G) 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 (D) of this rule. If requested by any of the parties, the testimony shall be transcribed at the expense of the party making the request. (H) 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. (I) 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 rule 4906-2-21 of the Administrative Code. 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. (J) 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. (K) 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. (L) 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: (1) 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. (2) 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. (M) 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. A deposition need not be prefiled if used to impeach the testimony of a witness at hearing. (N) The notice to a party deponent may be accompanied by a request made in compliance with rule 4906-2-19 of the Administrative Code for the production of documents or tangible things at the taking of the deposition. Last updated June 17, 2024 at 10:51 AM Supplemental Information |
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Rule 4906-2-19 | Production of documents and things, entry upon land or other property.
(A) Subject to the scope of discovery set forth in rule 4906-2-14 of the Administrative Code, any party may serve upon any other party a written request to: (1) 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. (2) 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. (3) 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. (B) 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. (C) 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 rule 4906-2-22 of the Administrative Code 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. (D) 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. Last updated June 17, 2024 at 10:51 AM Supplemental Information |
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Rule 4906-2-20 | Request for admission.
(A) 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 rule 4906-2-14 of the Administrative Code, 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. (B) 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. (C) Any party who has requested an admission may move for an order under rule 4906-2-22 of the Administrative Code 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: (1) Order that the matter be admitted for purposes of the pending proceeding. (2) Order that an amended answer be served. (3) 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. (D) 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. Last updated June 17, 2024 at 10:51 AM Supplemental Information |
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Rule 4906-2-21 | Motions for protective orders.
(A) 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: (1) Discovery not be had. (2) Discovery may be had only on specified terms and conditions. (3) Discovery may be had only by a method of discovery other than that selected by the party seeking discovery. (4) Certain matters not be inquired into. (5) The scope of discovery be limited to certain matters. (6) Discovery be conducted with no one present except persons designated by the board or the administrative law judge. (7) A trade secret or other confidential research, development, commercial, or other information not be disclosed or be disclosed only in a designated way. (8) 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. (B) 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: (1) A memorandum in support, setting forth the specific basis of the motion and citations to any authorities relied upon. (2) Copies of any specific discovery request which are the subject of the request for a protective order. (3) 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. (C) 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. (D) 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. (1) All documents submitted pursuant to 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. (2) 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". (3) 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. (E) Pending a ruling on a motion filed in accordance with 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 this rule. (F) Unless otherwise ordered, any order prohibiting public disclosure pursuant to this rule shall automatically expire twenty-four months after the date of its issuance, and such information may then be included in the public record of the proceeding. Exceptions may be made for motions seeking to protect critical energy infrastructure information. A party wishing to extend a protective order beyond twenty-four months shall file an appropriate motion at least forty-five days in advance of the expiration date of the existing order. The motion shall include a detailed discussion of the need for continued protection from disclosure. (G) Nothing precludes the board from reexamining the need for protection issue de novo during the twenty-four month period if there is an application for rehearing on confidentiality or a public records request for the redacted information. Last updated June 17, 2024 at 10:51 AM Supplemental Information |
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Rule 4906-2-22 | Motions to compel discovery.
(A) Any party, upon reasonable notice to all other parties and any persons affected thereby, may move for an order compelling discovery, with respect to: (1) Any failure of a party to answer an interrogatory served under rule 4906-2-17 of the Administrative Code. (2) Any failure of a party to produce a document or tangible thing or permit entry upon land or other property as requested under rule 4906-2-19 of the Administrative Code. (3) Any failure of a deponent to appear or to answer a question propounded under rule 4906-2-18 of the Administrative Code. (4) Any other failure to answer or respond to a discovery request made under rules 4906-2-17 to 4906-2-20 of the Administrative Code. (B) For purposes of this rule, an evasive or incomplete answer shall be treated as a failure to answer. (C) 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: (1) A memorandum in support, setting forth: (a) The specific basis of the motion, and citations of any authorities relied upon. (b) A brief explanation of how the information sought is relevant to the pending proceeding. (c) Responses to any objections raised by the party or person from whom discovery is sought. (2) Copies of any specific discovery requests which are the subject of the motion to compel, and copies of any responses or objections thereto. (3) 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. (D) 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 rule 4906-2-21 of the Administrative Code. (E) 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 4906-2-29 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. (F) If any party or person disobeys an order of the board compelling discovery, the board may: (1) Seek appropriate judicial relief against the disobedient person or party under section 4903.04 of the Revised Code. (2) Prohibit the disobedient party from further participation in the pending proceeding. (3) Prohibit the disobedient party from supporting or opposing designated claims or defenses, or from introducing evidence or conducting cross-examination on designated matters. (4) Dismiss the pending proceeding if such proceeding was initiated by an application or petition, unless such a dismissal would unjustly prejudice any other party. (5) Take such other action as the board considers appropriate. Last updated June 17, 2024 at 10:51 AM Supplemental Information |
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Rule 4906-2-23 | 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 in person to the board, any board member entitled to vote, or the administrative law judge assigned to the case for signature of the subpoena. After the subpoena is signed, 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. The person seeking the subpoena shall file the original signed subpoena and make arrangements for its service. (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 a party and who is not less than eighteen years of age. Service of a subpoena upon a person named therein shall be made by delivering it to such person, reading it to him or her in person, leaving it at his or her place of residence, leaving it at his or her business address if the person is a party or employee of a party to the case, or mailing the subpoena via United States mail as certified or express mail, return receipt requested, with instructions to the delivering postal authority to show to whom delivered, date of delivery, and address where delivered. 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. When a subpoena is served by mail, the person filing the return shall include the signed receipt with the return. (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 rule 4906-2-14 of the Administrative Code. Such a subpoena is subject to the provisions of rule 4906-2-21 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. Last updated June 17, 2024 at 10:51 AM Supplemental Information |
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Rule 4906-2-24 | Stipulations.
(A) Any two or more parties may enter into a written or oral stipulation concerning issues of fact or the authenticity of documents, or the proposed resolution of some or all of the issues in a proceeding. (B) 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 twenty-four hours before the commencement of the hearing in a proceeding. (C) An oral stipulation may be made only during a public hearing or recorded at a 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 (B) of this rule. (D) Unless otherwise ordered, parties who file a full or partial written stipulation or make an oral stipulation must file or provide testimony that supports the stipulation. Parties that do not join the stipulation may offer evidence and/or argument in opposition. No stipulation shall be considered binding upon the board. Last updated June 17, 2024 at 11:03 AM Supplemental Information |
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Rule 4906-2-25 | 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. Last updated June 17, 2024 at 11:03 AM Supplemental Information |
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Rule 4906-2-26 | Practice before the board and designation of counsel of record.
(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) An out-of-state attorney may seek permission to appear pro hac vice before the board in any activity of a case upon the filing of a motion. The motion shall include all the information and documents required by paragraph (A)(6) of section 2 of rule XII of the Rules of the Government of the Bar of Ohio. (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) Where a party is represented by more than one attorney, one of the attorneys shall be designated as the "counsel of record," who shall have principal responsibility for the party's participation in the proceeding. The designation "counsel of record" shall appear following the name of that attorney on all pleadings or papers submitted on behalf of the party. (E) 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. Last updated June 17, 2024 at 11:03 AM Supplemental Information |
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Rule 4906-2-27 | 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 rules 4906-2-02 and 4906-2-05 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. Last updated June 17, 2024 at 11:03 AM Supplemental Information |
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Rule 4906-2-28 | 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. Last updated June 17, 2024 at 11:03 AM Supplemental Information |
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Rule 4906-2-29 | 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 4906-2-28 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 4906-2-28 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) The appeal is taken from a ruling which represents a departure from past precedent and 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) Any party intending to file an interlocutory appeal on the day before a day on which board offices are closed shall notify all other parties of the intent to file an interlocutory appeal by three p.m. on the day of filing. Notice may be personal or by phone or email. The party filing the interlocutory appeal shall serve, upon request, a copy of the appeal by email or fax. Unless otherwise ordered by the board, any party may file a memorandum contra within five days after the filing of any interlocutory appeal. (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 4906-2-28 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. Last updated June 17, 2024 at 11:03 AM Supplemental Information |
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Rule 4906-2-30 | Decision by the board.
Within a reasonable time after the conclusion of the hearing, the board shall issue a final decision based only on the record, including such additional evidence as it shall order admitted. The board may determine that the location of all or part of the proposed facility should be modified. If it so finds, it may condition its certificate upon such modifications. Persons and municipal corporations shall be given reasonable notice thereof. 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. Last updated June 17, 2024 at 11:04 AM Supplemental Information |
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Rule 4906-2-31 | Reopening of proceedings.
(A) The board or the administrative law judge may, upon their own motion or upon motion of any person for good cause shown, reopen a proceeding at any time prior to the issuance of a final order. (B) A motion to reopen a proceeding shall specifically set forth the nature and purpose. If the purpose is to permit the presentation of additional evidence, the motion shall specifically describe the nature and purpose of the requested reopening of such evidence and shall set forth facts showing why such evidence could not with reasonable diligence have been presented earlier in the proceeding. Last updated June 17, 2024 at 11:04 AM Supplemental Information |
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Rule 4906-2-32 | Applications for rehearing.
(A) 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. (B) Any party may file a memorandum contra within ten days after the filing of an application for rehearing. (C) 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, or in the case of an application that is subject to automatic approval under the board's procedures, an application for rehearing must be submitted within thirty days after the date on which the automatic time frame has expired, unless the application has been suspended by the board. (D) 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. (E) The board, the chairperson 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. Last updated May 30, 2024 at 9:09 AM Supplemental Information |
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Rule 4906-2-33 | 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 chairperson 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 fax or email. Last updated May 30, 2024 at 9:09 AM Supplemental Information |