TITLE 32: ENERGY CHAPTER II: DEPARTMENT OF NUCLEAR SAFETY SUBCHAPTER b: RADIATION PROTECTION PART 200 ADMINISTRATIVE HEARINGS Section 200.10 Scope and Nature of Rules 200.20 Appearance - Right to Counsel 200.30 Parties 200.40 Forms of Papers 200.50 Notice, Service and Proof of Service 200.60 Preliminary Order and Notice of Opportunity for Hearing 200.70 Right to Hearing 200.80 Motions 200.90 Continuances 200.100 Hearing Officer 200.110 Ex Parte Consultation 200.120 Informal Conferences 200.130 Conduct of Hearings 200.140 Amendments 200.150 Burden of Proof 200.160 Witnesses at Hearings 200.170 Evidence at Hearings 200.180 Cross Examination 200.190 Official Notice 200.200 Default 200.210 Hearing Record 200.220 Hearing Officer's Report 200.230 Final Decision of the Director AUTHORITY: Implementing Sections 8.2, 9 and 11 and authorized by Section 6 of the Radiation Protection Act (Ill. Rev. Stat. 1985, ch. 111«, pars. 218, 219, 221 and 216). SOURCE: Filed April 20, 1974 by the Department of Public Health; transferred to the Department of Nuclear Safety by P.A. 81-1516, effective December 3, 1980; amended at 7 Ill. Reg. 9306, effective July 22, 1983; codified at 7 Ill. Reg. 16404; amended at 10 Ill. Reg. 17200, effective September 25, 1986. Section 200.10 Scope and Nature of Rules a) Authority and Scope 1) Authority. The rules of this Part are promulgated pursuant to Section 4(a) of the Illinois Administrative Procedure Act (IAPA) (Ill. Rev. Stat. 1985, ch. 127, par. 1004(a)). 2) Scope. This Part shall govern the proceedings of any adjudicatory administrative hearing of the Department of Nuclear Safety (Department), except as otherwise specifically provided by statute or regulation. b) Communications to the Department. All communications to the Department concerning administrative hearings shall be addressed to the Director at Springfield, Illinois, unless otherwise directed. c) Construction of rules. These rules shall not be construed to abrogate, modify, or limit any rights, privileges, or immunities granted or protected by the Constitution or laws of the United States or the State of Illinois. In case of any conflict between these rules and the IAPA or a licensing statute, the procedures of the IAPA or licensing statute shall control. (Source: Amended at 10 Ill. Reg. 17200, effective September 25, 1986) Section 200.20 Appearance - Right to Counsel a) Any party to a proceeding before the Department may appear as follows: 1) A natural person may appear in his/her own behalf or by an attorney licensed and registered to practice in the State of Illinois. 2) Any other person may appear through any bona fide officer, employee, or by an attorney licensed and registered to practice in the State of Illinois. b) Each party to a proceeding before the Department shall inform the Department in writing of the name and address to which any notice or other document should be served upon the party to such proceeding. c) All persons appearing in proceedings before the Department shall conform to the standards of conduct of attorneys before the courts of the State of Illinois (Ill. Rev. Stat. 1985, ch. 110A, Rule 7- 106). If a person fails to conform to these standards, and such failure delays or disrupts the proceeding, the Department or the hearing officer shall have the authority to prohibit such person from appearing in the proceeding. (Source: Amended at 10 Ill. Reg. 17200, effective September 25, 1986) Section 200.30 Parties a) The parties to administrative hearings before the Department are the Department and the Respondent. b) A Respondent is a person or entity against whom a Preliminary Order and Notice of Opportunity for Hearing is filed by the Department. c) Misnomer of a party is not a ground for dismissal. The name of any party may be corrected at any time. (Source: Amended at 10 Ill. Reg. 17200, effective September 25, 1986) Section 200.40 Form of Papers a) Written pleadings, motions or other documents filed in any proceeding shall be typewritten. Copy shall be on one side of the paper and shall be double spaced, except that quotations may be single spaced and indented. Reproductions of any documents to be incorporated into the record may be made by carbon or copying machine or any other process that produces legible black on white copies. b) Written pleadings, motions or other documents filed in any proceeding shall be cut or folded to a width of 8 « inches and a length of 11 « inches and shall have inside margins of no less than one inch width. c) Written pleadings, motions, or other documents shall be signed in ink with the name and address of the party filing the paper, and, if represented by an attorney, the name and address of such attorney. d) Written pleadings, motions, affidavits, and other documents shall be filed in triplicate with the Department and one copy shall be served on each party to the proceeding. (Source: Amended at 10 Ill. Reg. 17200, effective September 25, 1986) Section 200.50 Notice, Service and Proof of Service a) The hearing officer and all parties to the proceedings shall be served all pleadings, motions, notices and other documents filed by any party. Proof of such service on all parties shall be filed with the hearing officer. b) Any Order or Notice issued by the Department shall either be served personally or by registered or certified mail on the Respondent. c) All other pleadings and other documents shall be served personally or by first class United States mail properly addressed with postage prepaid, to each party to the proceeding. d) When any party or parties have appeared by attorney, service upon the attorney shall be deemed service upon the party or parties. e) Proof of service of any paper shall be by certificate of attorney, affidavit or acknowledgement, or certified or registered mail return receipt requested. f) Wherever notice or notification is indicated or required, it shall be effective upon the date of mailing to the party's business address, residence or last address on file with the Department. g) In addition to the methods provided for in this Part, a Respondent may be served in any mon the Respondent. (Source: Amended at 10 Ill. Reg. 17200, effective September 25, 1986) Section 200.60 Preliminary Order and Notice of Opportunity for Hearing a) In the event that a person has violated or is alleged to have violated the statutes, regulations or terms of licensure or accreditation, the Department shall commence administrative proceedings by the service of a Preliminary Order and Notice of Opportunity for Hearing upon the Respondent. b) The Preliminary Order and Notice of Opportunity for Hearing shall contain: 1) A statement of the legal authority and jurisdiction under which a hearing would be held; 2) A reference to the provision(s) of the statute(s), regulation(s) or term(s) of licensure or accreditation involved; 3) A short and plain statement of the matters asserted, including dates, location, events, nature, extent, and duration, to advise the Respondent of the extent and nature of the alleged violations; 4) A statement of the right to request a hearing and the date by which a request for a hearing is to be submitted to the Department, which shall be at least ten (10) days from the date of the Preliminary Order; 5) The time, date and location when the hearing will be held, if one is requested; and 6) A statement of the action(s) that will be taken by the Department in the event that a hearing is not requested by the Respondent. (Source: Amended at 10 Ill. Reg. 17200, effective September 25, 1986) Section 200.70 Right to Hearing a) In the event that the Respondent seeks a hearing pursuant to matters raised in a Preliminary Order issued in accordance with Section 200.60, the Respondent must submit a request for a hearing by the date specified in the Preliminary Order. In the event that a person seeks a hearing pursuant to the denial of an application for licensure or accreditation or the denial of reinstatement of licensure or accreditation by the Department, the person must submit a request for a hearing within thirty (30) days of such denial. b) This request must be in writing and must contain a brief statement of the basis upon which the Department's Preliminary Order or denial of licensure or accreditation is being challenged. c) If such request is not submitted by the date required in accordance with subsection (a), or if such request is submitted but later withdrawn, the action(s) proposed by the Department in the Preliminary Order or denial of licensure or accreditation shall be a final and binding administrative determination. d) No final decision shall be made or action taken by the Department until the Respondent has had an opportunity to request a hearing and, if requested, a hearing has been held, except that in cases wherein there is an immediate threat to public health or safety, the Department may take action to immediately enjoin such threat pending a hearing. Such hearing shall be held within thirty (30) days of the Department's action (Ill. Rev. Stat. 1985, ch. 111 1/2, par. 222). (Source: Amended at 10 Ill. Reg. 17200, effective September 25, 1986) Section 200.80 Motions A hearing officer may allow oral motions and responses on emergency or purely procedural questions or for good cause shown. Emergency and procedural motions will be ruled upon when made. Other motions, such as motions to dismiss, etc., will not be ruled upon by the hearing officer but will be considered by the hearing officer in preparation of the written report and will be submitted to the Director for a decision. (Source: Amended at 10 Ill. Reg. 17200, effective September 25, 1986) Section 200.90 Continuances A party shall be granted one continuance of up to fourteen (14) days on request. Any other requests for a continuance will be granted only for good cause shown. In determining good cause, factors which the hearing officer may consider shall include the inability to produce a material witness or evidence, surprise, required attendance of legal counsel elsewhere, illness or death of a party or witness, and substitution of an attorney. (Source: Amended at 10 Ill. Reg. 17200, effective September 25, 1986) Section 200.100 Hearing Officer a) When a Preliminary Order and Notice of Opportunity for Hearing is issued and a hearing is requested, the Director of the Department shall designate a hearing officer to preside at the formal adminis- trative hearing. b) The appointed hearing officer shall not have direct involvement with the case or have an interest in the decision to be reached. Mere familiarity with the facts shall not disqualify a hearing officer. c) The hearing officer shall have the duty to conduct a fair hearing, to maintain order, to ensure development of a clear and complete record, and to submit a written report to the Director for the Director's decision. d) In addition to other authority provided in this Part, the hearing officer shall have the authority to: 1) Direct the parties to meet in an informal conference in accordance with Section 200.120; 2) Administer oaths; 3) Receive evidence and rule upon the admissibility of oral testimony and other evidence; 4) Examine witnesses for the purpose of clarifying the record; 5) Consider and rule upon motions in accordance with Section 200.80. (Source: Amended at 10 Ill. Reg. 17200, effective September 25, 1986) Section 200.110 Ex Parte Consultation Ex parte communications and consultation between and among parties shall be limited to that which is in accordance with the Illinois Administrative Procedure Act, (Ill. Rev. Stat. 1985, ch. 127, par. 1015). (Source: Amended at 10 Ill. Reg. 17200, effective September 25, 1986) Section 200.120 Informal Conferences a) Upon request of any party or on the hearing officer's own motion, the hearing officer shall have the authority to direct the parties to appear at a specified time and place for a conference, prior to or during the course of the hearing, for the purpose of: 1) simplifying the issues; 2) amending the pleadings for clarification, amplification, or limitation; 3) making admissions of fact or stipulating to the admissibility of evidence; 4) limiting the number of witnesses; 5) exchanging witness lists and prepared testimony and exhibits; 6) aiding in the simplification of the evidence and disposition of the proceedings; or 7) stipulation and settlement concerning matters relating to confidential information, e.g. privileged medical records and commercial trade secrets or financial information the disclosure of which could cause competitive harm. b) The record of the hearing shall reflect any orders or other decisions which are made as a result of such a conference. (Source: Amended at 10 Ill. Reg. 17200, effective September 25, 1986) Section 200.130 Conduct of Hearing a) Unless closing the hearing is necessary to preserve the confiden- tiality of medical records, or the confidentiality of trade secrets or financial information the disclosure of which could cause com- petitive harm, hearings shall be open to the public, as required by Section 8.2 of the Radiation Protection Act (Ill. Rev. Stat. 1985, ch. 111«, par. 218.2). If matters of confidentiality are involved, the hearing officer shall have the authority to close all or a portion of the hearing to the public. b) The hearing officer shall direct all parties to enter their appearances on the record. All witnesses shall be sworn. c) The hearing officer shall inquire fully into the matters at issue and shall receive testimony of witnesses and any other evidence which is relevant and material to the issues presented. The following shall be the usual order of administrative hearings, unless the hearing officer decides otherwise: 1) presentation, argument, and disposition of preliminary motions in accordance with Section 200.80; 2) presentation of opening statements; 3) Department's case in chief; 4) Respondent's case in chief; 5) Department's case in rebuttal; 6) Respondent's case in rebuttal; 7) presentation of closing arguments, including legal arguments; d) Parties may by stipulation agree upon any facts involved in the proceeding. The facts stipulated shall be considered as evidence in the proceeding. Disposition may be made of any case by stipulation, agreed settlement, consent order or default. (Source: Amended at 10 Ill. Reg. 17200, effective September 25, 1986) Section 200.140 Amendments At any time prior to the hearing or before completion of the hearing, amend- ments shall be allowed for good cause shown to introduce any party who ought to have been joined, to dismiss any party, or to delete, modify or add allega- tions or defenses. In the event of a change in parties or a substantive amendment to the allegations or defenses immediately preceding or during the hearing, any remaining party may request that the hearing be suspended. Upon such request, the hearing officer shall suspend the hearing for up to fourteen (14) days to provide an opportunity for the parties to respond to such changes in parties or substantive amendments which are introduced immediately preceding or during the hearing. (Source: Amended at 10 Ill. Reg. 17200, effective September 25, 1986) Section 200.150 Burden of Proof a) The burden of proof shall be on the Department unless the matter at issue is the denial of an application for licensure or accreditation, or an application for reinstatement of licensure or accreditation which has been previously revoked, suspended, or otherwise terminated. In such cases, the burden of proof shall be on the Respondent. b) In the case of any new matter introduced in connection with any affirmative defense, the burden of proof with respect thereto shall be upon the party which alleges such new matter. c) The standard of proof with respect to all hearings conducted pursuant to this Part shall be a preponderance of the evidence. (Source: Amended at 10 Ill. Reg. 17200, effective September 25, 1986) Section 200.160 Witnesses at Hearings a) The hearing officer may administer oaths to witnesses. b) Both the hearing officer and the parties or their representatives may examine witnesses. c) A party may conduct examination and cross-examination which is shown to be necessary to a full and fair disclosure of facts bearing upon matters in issue, provided that such examination or cross-examination does not abuse or harass a witness. (Source: Amended at 10 Ill. Reg. 17200, effective September 25, 1986) Section 200.170 Evidence at Hearings a) When the hearing results from the denial of an application for licensure or accreditation, or denial of an application for reinstatement of licensure or accreditation, the Respondent shall have the right to introduce evidence at the hearing that was not made available to the Department at the time the application was denied. If the hearing officer determines that such additional evidence could have affected the Department's decision to deny the application, the hearing officer shall suspend the hearing to enable appropriate representatives of the Department to consider this additional evidence and to decide whether the decision to deny the application should be modified or reversed. b) Irrelevant, immaterial or unduly repetitious evidence shall be excluded. The rules of evidence and privilege as applied in civil cases in the Circuit Courts of this State shall be followed. How- ever, evidence not admissible under such rules of evidence may be admitted (except where precluded by statute) if it is of the type commonly relied upon by reasonably prudent persons in the conduct of their affairs. When the admissibility of evidence is in dispute and depends upon fairly arguable interpretations of law, such evidence shall be admitted. Objections to evidentiary offers may be made and shall be noted in the record. Subject to these requirements, when a hearing will be expedited and the interests of the parties will not be prejudiced, any part of the evidence may be received in written form. Any party may submit evidence in rebuttal. c) Accurate summaries of voluminous documents may be admitted into evidence. The document summarized need not itself be admitted into evidence. Copies of the document need not be provided so long as all parties are accorded a reasonable opportunity to inspect the document summarized. (Source: Amended at 10 Ill. Reg. 17200, effective September 25, 1986) Section 200.180 Cross Examination a) Subject to the evidentiary requirements of this Part, a party may conduct cross-examination required for a full and fair disclosure of the facts. b) If the hearing officer determines that a witness is hostile or unresponsive, the hearing officer shall authorize the examination by the party calling such witness as if under cross-examination. c) Any party may call any adverse party as a witness and proceed to examine such adverse party as if under cross-examination except that if the Respondent wants to call a representative of the Department as an adverse witness, he/she may do so only if such representative(s) was directly involved in the determinations which served as the basis for the Department's Preliminary Order under this Part. d) Any party calling a witness, upon a showing that he/she called the witness in good faith and is surprised by the testimony of the witness, may impeach that witness by evidence of prior inconsistent statements. (Source: Amended at 10 Ill. Reg. 17200, effective September 25, 1986) Section 200.190 Official Notice a) Official notice may be taken of: 1) Matters of which the Circuit Courts of this State may take judicial notice; and 2) Generally recognized technical or scientific facts within the Department's specialized knowledge. b) Parties shall be notified either before or during a hearing, or by reference in preliminary reports, or otherwise, of the material noticed, including any staff memoranda or data to be offered as evidentiary matter during the course of the hearing, and they shall be afforded an opportunity to contest the material so noticed. The Department's experience, technical competence and specialized knowledge may be utilized in the evaluation of the evidence. (Ill. Rev. Stat. 1985, ch. 127, par. 1012) (Source: Amended at 10 Ill. Reg. 17200, effective September 25, 1986) Section 200.200 Default Except for good cause show, the failure of a party to appear on the date set for hearing or failure to proceed as ordered by the hearing officer or Director shall constitute a default. The Director shall thereafter enter such order as appropriate, in accordance with the Preliminary Order, pleadings and the evidence introduced at the hearing, if any. (Source: Amended at 10 Ill. Reg. 17200, effective September 25, 1986) Section 200.210 Hearing Record a) The Department shall designate an official reporter to make and transcribe a stenographic record of the adjudicatory proceedings. b) A complete record of the hearing shall include: 1) all pleadings (including all notices, responses, motions, and rulings); 2) evidence received; 3) a statement of matters officially noticed; 4) offers of proof, objections and rulings thereon; 5) proposed findings and exceptions; 6) any recommended decision, opinion or report by the hearing officer; 7) staff memoranda or data submitted to the hearing officer or the Department in connection with the consideration of the case; and 8) any ex-parte communication as defined by the provisions of the Illinois Administrative Procedure Act (Ill. Rev. Stat. 1985, ch. 127, par. 1015). Such communication shall not form the basis for any finding of fact. c) A copy of the record will be reproduced at the request of any party to the review who bears the cost thereof in accordance with Ill. Rev. Stat. 1985, ch. 116, par. 206. d) The Department shall be the official custodian of the records of administrative hearings held before the Department. (Source: Amended at 10 Ill. Reg. 17200, effective September 25, 1986) Section 200.220 Hearing Officer's Report a) As soon as practicable after the close of a hearing, the hearing officer shall prepare a written report of the case, which shall be based upon the evidence adduced at the hearing or otherwise included in the record. The written report shall contain findings of fact, a recommended decision and the reasons therefor. b) This report shall be submitted to the Director. The hearing officer shall also send a copy of such report to the Respondent or his/her counsel and to the Department's counsel. Both Respondent and the Department's counsel may file written exceptions to the Director within ten (10) days. (Source: Amended at 10 Ill. Reg. 17200, effective September 25, 1986) Section 200.230 Final Decision of the Director a) The Director shall reach a final decision in each proceeding, which shall be specified in a written order including findings of fact and conclusions of law separately stated. Findings of fact, if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings. b) A copy of the Order of the Director shall be served personally or by certified or registered mail upon all parties to the proceeding. c) The decision of the Director shall be considered a Final Order. (Source: Amended at 10 Ill. Reg. 17200, effective September 25, 1986)