Delaware Administrative Code
Title 7 - Natural Resources and Environmental Control
100 - Office of the Secretary
105 - Environmental Appeals Board Regulations
Section 105-5.0 - Hearings Before the Board

5.1 The Board's Administrative Assistant shall schedule the appeal for the first available date which allows for the 20 days notice required in 7Del.C.§ 6006. The Board will conduct hearings on the second and fourth Tuesday of each month.

5.2 A verbatim record of the proceedings before the Board shall be taken be an electronic recording instrument or by a court stenographer. All testimony shall be taken under oath. The Chairman of the Environmental appeals Board or another designated Board member shall preside over the hearing. The names and addresses of all interested parties present shall be noted on the official record of the hearing.

5.3 The record before the Board includes the entire record before the Secretary. Any party may present any competent evidence in its behalf and request subpoenas for testimony or production of documents and other tangible evidence. Non parties shall not present evidence. Appellants other than permit applicants or an alleged violator may only introduce evidence which was before the Secretary. The Board is not required to re-hear testimony which has already been given before the Secretary, but may do so if, within its discretion, it determines that the evidence would be helpful.

5.4 Strict rules of evidence shall not apply. All evidence having probative value commonly accepted by a reasonably prudent person in the conduct of his or her affairs shall be admitted. Objections to the admission or the exclusion of evidence shall be brief and shall state the ground for objection.

5.5 The Board may exclude any evidence which is plainly irrelevant, immaterial, insubstantial, cumulative or unduly repetitive.

5.6 An offer of proof made in connection with any objection taken to any admission or exclusion of evidence shall consist of a statement of that which the offeror contends would be adduced by such testimony or document. Where the offer concerns a document, a copy of such evidence shall be marked for identification.

5.7 The appellant shall appear personally or be represented by counsel. The hearing shall open with a brief statement from each party of what such party intends to establish at the hearing. Comments will begin with the appellant.

5.8 Following opening statements, each party shall have an opportunity to produce evidence in support of such party's position. The appellant(s) shall produce evidence first followed by the Department and then followed by the Permittee if any. After initial testimony and cross-examination by the parties, any witness may be examined by any member of the Board. Following the presentation of the main case, the appellant shall have an opportunity to produce rebuttal evidence, subject to cross-examination. Following the presentation of the rebuttal evidence, the parties opposing the appellant shall have an opportunity to present surrebuttal evidence, subject to cross-examination.

5.9 The record of the hearing shall not be transcribed unless in the opinion of the Board, the transcript is necessary for the Board to reach a decision. However, any person who pays the cost for transcription may obtain a copy of the transcript.