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)
