Current through Register Vol. 51, No. 19, September 20, 2024
A. Definitions.
(1) "Adjudicative fact" means facts which
involve a particular party or facility and have no general applicability--for
example, the types and quantities of pollutant emissions which one facility
will have.
(2) "Adjudicatory
hearing" means a contested case hearing conducted pursuant to the relevant
provisions of the Act and the Administrative Procedure Act.
(3) "Requester" means the person requesting
an adjudicatory hearing who seeks to or has become a party to the proceedings,
and whose legal rights, duties, statutory entitlements, or privileges are
adversely affected by the decision of the Board on an application.
B. Requests for Adjudicatory
Hearings.
(1) Within 50 calendar days from the
date of publication in the Maryland Register of the notice of the completed
application, persons requesting an adjudicatory hearing shall submit to the
Secretary, in writing, specific grounds for their grievances.
(2) Requesters for adjudicatory hearings
shall do all of the following:
(a) State the
name, address, and telephone number of the person making the request;
(b) Identify the specific rights, duties,
statutory entitlements, or privileges of the requester which are adversely
affected by the application for which the adjudicatory hearing is requested,
and upon which the requester asserts his or her grievance;
(c) Identify any other person whom the
requester represents;
(d) State
separately and specifically the issues of adjudicative fact proposed to be
considered at the hearing; and
(e)
Describe the data and information which, if established through relevant and
competent evidence at the hearing, would be adequate to justify resolution of
the factual issue(s) in the way sought by the person.
C. Board's Consideration of
Requests.
(1) The Board shall consider any
requests for an adjudicatory hearing promptly and give notice of its decision
to requesters by certified mail. Before an adjudicatory hearing is granted, the
Board may request briefs from all requesters on the issue of standing or other
threshold issues. The Board or its hearing officer will determine which parties
will have standing as to each issue. Any requester may be admitted as a party
for limited purposes.
(2) Requests
for an adjudicatory hearing will be granted if the requester has shown all of
the following:
(a) There is a genuine issue of
material adjudicative fact for resolution at a hearing. An adjudicatory hearing
will not be granted on issues of policy or law or on issues of fact which are
of no consequence to the determination of whether or not a certificate should
issue.
(b) The factual issue is
capable of being resolved by available and specifically identified evidence. A
hearing will not be granted on the basis of mere allegations or denial or
general descriptions of positions and contentions.
(c) The data and information identified in
the request for hearing, if established through relevant and competent evidence
at a hearing, would be adequate to justify resolution of the factual issue in
the way sought by the person. A hearing will be denied if the Board concludes
that, even assuming the truth and accuracy of all of the data and information
submitted in support of the objection and request for hearings, they are
insufficient to justify the factual determination urged.
D. Pre-hearing Conference.
(1) The hearing officer may hold a
pre-hearing conference to determine standing or any other preliminary
matters.
(2) At the discretion of
the hearing officer, persons other than parties may attend pre-hearing
conferences.
(3) At a pre-hearing
conference or within some reasonable time set by the hearing officer, each
party shall make available to the other parties the names of experts and other
witnesses the party expects to call, together with a brief written summary of
their anticipated testimony.
(4) At
a pre-hearing conference, or within some reasonable time set by the hearing
officer, the following matters shall be considered:
(a) The documents within the Board's file
shall be identified.
(b)
Stipulations and admissions of facts and the genuineness of documents and other
matters upon which there is agreement shall be identified.
(c) Matters of which official notice may be
taken shall be identified.
(d)
Disputed issues of a purely legal nature shall be identified and submitted by
the hearing officer to the Attorney General.
(e) Disputed issues of policy shall be
identified and deferred for consideration until the public hearing held on the
application.
(f) Disputed issues of
fact which concern technical matters (plans, specifications, construction
drawings, process controls, operation procedures, etc.) subject to
determination by the Department in connection with issuance of a facility or
discharge permit may be deferred, at the hearing officer's sole discretion, to
the Department with the Department's concurrence. Until the resolution of the
disputed factual issue by the Department or issuance of necessary permits, the
Board shall presume resolution of the disputed fact in a manner consistent with
issuance of the certificate. Post-permit review by the Board shall be as set
forth in Regulation .07E.
(g) When
possible, consideration shall be given to and decisions made upon objections to
the introduction into evidence at the hearing of any written documents, papers,
exhibits, testimony, or materials proposed to be introduced at the hearing by a
party. The hearing officer may determine to receive evidence on an issue by
issue basis. To the extent possible, parties of like interest in the
application shall consolidate the presentation of their cases.
(h) A schedule of presentation order for the
following shall be established:
(i)
Submissions of written statements;
(ii) Presentation of oral and written
statements;
(iii) Presentation of
oral, direct, and cross-examinations;
(iv) Presentation of oral
arguments.
(5) The hearing officer shall prepare a
written pre-hearing order reciting the actions taken at the pre-hearing
conference.
E. General
Procedure for Hearing. Adjudicatory hearings shall be conducted generally in
the following order, unless modified by the hearing officer during the
pre-hearing conference:
(1) Call of the case
by the hearing officer;
(2) Opening
statements by the parties;
(3)
Presentation of the case by the applicant and intervenors in favor of the
application:
(a) Direct evidence,
(b) Cross-examination in an order to be
determined by the hearing officer;
(4) Presentation of the case by opponent or
opponents in an order to be determined by hearing officer:
(a) Direct evidence by the
opposition,
(b) Cross-examination
by the applicant or intervenors in favor of the application, or both;
(5) Written rebuttals to be filed
within 3 days of the close of oral testimony:
(a) Concluding arguments by the applicant and
other proponents,
(b) Concluding
arguments by the opponents;
(6) Concluding arguments shall be heard by a
majority of the Board. The Board may also examine witnesses.
F. The party who raises material
issues of fact has the burden to present an affirmative case upon the issues.
The burden of production on any specific issue may vary between the parties at
the discretion of the hearing officer. The hearing officer may issue a summary
dismissal of any issue of fact after presentation of a party's case when, even
assuming the truth and accuracy of all evidence submitted by that party, it is
insufficient to justify the factual determination urged. The applicant has the
ultimate burden of persuasion on all factual issues adjudicated.
G. Authority and Duty of Hearing Officer.
(1) The hearing officer shall have the
authority and duty to conduct a fair and impartial hearing, to take action to
avoid unnecessary delay in the disposition of the proceedings, and to maintain
order.
(2) The hearing officer
shall have all powers necessary to these ends, including the following:
(a) To administer oaths and
affirmations;
(b) To issue
summonses for witnesses and subpoenas requiring the production of
documents;
(c) To rule upon offers
of proof and receive relevant and material evidence;
(d) To consider and rule upon all procedural
motions and other motions appropriate to the proceedings;
(e) To examine witnesses;
(f) To maintain order, limit unduly
repetitious testimony, and limit the time for presentations;
(g) To identify and submit issues of law to
the Attorney General;
(h) To
identify and determine appropriate issues of fact to be deferred to the
Department;
(i) To grant a
continuance for good cause shown;
(j) To require parties to submit proposed
findings of fact.
H. Parties may cross-examine a witness who
appears at an adjudicatory hearing to the extent that cross-examination is
necessary for full and true disclosure of the facts. The provisions of the
Administrative Procedure Act shall apply to the adjudicatory hearing.
I. In multi-party proceedings, the hearing
officer may limit cross-examination to one party on each side if he or she is
satisfied that the cross-examination by that party will adequately protect the
other parties. Other parties may engage in cross-examination relevant to
matters not adequately covered by previous cross-examination.
J. Rulings of the hearing officer on the
admissibility of evidence, the propriety of cross-examination, and other
procedural matters shall be final and shall appear in the record. Parties shall
be presumed to have taken exception to an adverse ruling.
K. Record of Adjudicatory Hearing.
(1) All orders issued by the hearing officer,
stenographic notes or tapes, or transcripts of oral hearings or arguments,
written statements of position, written direct and rebuttal testimony, and any
other data, studies, reports, documentation, information, and other written
matter submitted in the adjudicatory hearing, shall be available to the public
in the office of the Secretary upon compilation.
(2) Adjudicatory hearings shall be either
stenographically reported verbatim or tape recorded, and then may be
transcribed. Stenographic notes or tapes, or originals of the transcript, shall
be filed with the record along with all exhibits.
(3) The hearing officer shall certify that
the stenographic notes or tapes, or transcripts and exhibits are received, and
each of the parties shall be so notified by certified mail. Any party who
desires a copy of a transcript of the hearing may request a copy from the
hearing office and pay the costs. If the transcript is prepared by a private
stenographer, the hearing officer may direct interested persons to make
arrangements for copies by dealing directly with the reporter.
L. Within 10 calendar days after
mailing to the parties notice of certification of the stenographic notes,
tapes, or transcript, any party may file with the hearing officer proposed
findings of fact and conclusions and a brief in support thereof, each
containing appropriate references to the record. A copy of the findings,
conclusions, and brief shall be mailed to every other party at the same time.
The time for filing may be shortened or extended by the hearing officer only
for good cause shown.
