Current through Register 1531, September 27, 2024
(1)
Pre-hearing Conference. The Presiding Officer may upon
his own initiative or upon the application of any Party, call upon the Parties
to appear for a conference to consider:
(a)
simplifying or clarifying the issues;
(b) the possibility of obtaining
stipulations, admissions, agreements on documents, understandings on matters
already of record or similar agreements which will avoid unnecessary
proof;
(c) limiting the number of
expert witnesses or avoiding similar cumulative evidence, if the case is to be
heard;
(d) the possibility of
settlement or other agreement disposing of all or any of the issues in dispute;
and
(e) such other matters as may
aid in the disposition of the Adjudicatory Proceeding. Those matters agreed
upon by the Parties shall be electronically recorded in the presence of the
Parties and/or reduced to writing and shall be signed by the Parties, and
constitute part of the record. The scheduling of a pre-hearing conference shall
be solely within the discretion of the Presiding Officer.
(2)
Submission Without a
Hearing. A Party may elect to waive his right to a hearing and to
submit his case upon the record or Papers properly submitted to the Presiding
Officer.
(3)
Prefiled
Direct Testimony. The Presiding Officer may, on his own motion, or
on motion of any Party, order all Parties to file within a reasonable time in
advance of the hearing on the merits the full written text of the testimony of
their witnesses on direct examination, including all exhibits to be offered in
evidence. The Presiding Officer may also require the filing of written rebuttal
testimony within a reasonable time after the filing of the direct testimony
described in the preceding sentence. All testimony filed pursuant to this rule
shall be subject to the penalties of perjury. Each witness whose testimony is
filed pursuant to this rule shall be made available for cross-examination at
the hearing. If a witness is not available for cross-examination at the hearing
on the merits, the written testimony of said witness shall be excluded from the
record unless the Parties agree otherwise.
(4)
Hearings: When and Where
Held. Hearings will be held at a location designated by the
Authority. Any Party may, by motion and for good cause shown, request that a
hearing be held at some other location. Upon the motion of any Party and upon
good cause shown, the Presiding Officer may in his discretion advance a case
for hearing.
(5)
Conduct
of Hearings.
(a)
General. Hearings shall be as formal or informal as
may be reasonable and appropriate under the circumstances.
(b)
Decorum. All
Parties, Authorized Representatives, witnesses, and other Persons present at a
hearing shall conduct themselves in a manner consistent with the standard of
decorum commonly observed in any court. Where such decorum is not observed, the
Presiding Officer may take appropriate action.
(c)
Duties of Presiding
Officer. The Presiding Officer shall conduct the hearing, make all
decisions regarding admission or exclusion of evidence or any other procedural
matters and administer an oath or affirmation to all witnesses.
(d)
Presentation.
1.
Rights of
Parties. Subject to the submission of prefiled direct testimony,
all Parties have the right to call and examine witnesses, present evidence, to
cross-examine witnesses who testify, make objections, submit rebuttal evidence
and make opening and closing arguments, and make oral arguments.
Cross-examination shall occur immediately after any witness' testimony has been
received or as soon thereafter as the Parties agree. The Presiding Officer
shall give each Party the opportunity for redirect and recross
examination.
2.
Order
of Presentation. The Petitioner, and all Parties supporting the
Petitioner, shall have the right to present their evidence and testimony first
and upon completion of such presentation, the Respondent, and all Parties
supporting the Respondent, shall have the right to present their evidence and
testimony. The Presiding Officer shall have the discretion to vary this order
of presentation if it will expedite the Proceeding or clarify the issues raised
in the Proceeding; or where there are multiple Parties where the evidence is
particularly within the knowledge of one Party, or where Adjudicatory
Proceedings have been consolidated.
3.
Proof of
Violations. Notwithstanding 360 CMR 1.24(5)(d)2., where the appeal
concerns Authority action under
360 CMR 2.00, the Authority
shall have the burden of going forward with and of proving the occurrence of
any contested alleged violations. The proof may consist of facts known to the
Authority at the time it took the action and facts that became known to the
Authority after that date. Following presentation of the Authority's evidence,
the Person appealing the action shall have the burden of presenting and of
going forward with any defense to the Authority's allegations. Each matter of
controversy shall be determined by the Presiding Officer upon a preponderance
of the evidence.
4.
Penalty Amount. In an appeal of a penalty assessment
notice in which the amount of the penalty is at issue, after the Authority has
met its burden of going forward as required by 360 CMR 1.24(5)(d)3., the
Petitioner shall have the burden of going forward with and of proving facts to
alter the amount of the penalty assessed in the penalty assessment notice.
Following presentation of the Petitioner's evidence, the Authority may prove
facts to support the amount of the penalty assessed in the penalty assessment
notice or an alternative penalty amount. Each matter of controversy shall be
determined by the Presiding Officer upon a preponderance of the evidence.
(6)
Witnesses and Evidence.
(a)
Witnesses. A
witness' testimony shall be under oath or affirmation.
(b)
Rules of
Evidence. Unless otherwise provided by any law, the rules of
evidence observed by courts need not be observed in these Adjudicatory
Proceedings, but the rules of privilege recognized by law shall be observed.
Evidence may be admitted and given probative effect if it is the kind of
evidence on which reasonable persons are accustomed to rely in the conduct of
serious affairs. In a Proceeding involving Authority action taken under
360 CMR 2.00, the results of
sampling and analysis of wastewater conducted according to required sampling
and analysis procedures and contained in the official records of the Authority
shall be admissible and such results shall be afforded a rebuttable presumption
of validity. The weight to be given evidence presented will be within the
discretion of the Presiding Officer.
(c)
Offer of Proof.
An offer of proof made in connection with an objection taken to a ruling of the
Presiding Officer rejecting or excluding proffered testimony shall consist of a
statement of the substance of the evidence which the Party contends would be
adduced by such testimony; if the excluded evidence consists of evidence in
documentary or written form or reference to documents or records, a copy of
such evidence shall be marked for identification and shall constitute the offer
of proof.
(d)
Evidence
Included. All evidence, including any records, investigative
reports, documents and stipulations, which is to be relied upon in making a
Decision must be offered and made a part of the record. Documentary evidence
may be received in evidence in the form of copies, excerpts or incorporation by
reference. The Presiding Officer may require any Party to submit additional
evidence on any matter relevant to the Adjudicatory Proceeding.
(e)
Administrative
Notice. The Presiding Officer may take notice of any fact which
may be judicially noticed by Massachusetts courts and, in addition may take
notice of general, technical or scientific facts within the specialized
knowledge of the Authority. The Presiding Officer shall notify the Parties of
the facts so noticed and shall provide the Parties the opportunity to contest
the facts. The Presiding Officer may utilize the experience, technical
competence and specialized knowledge of the Authority in evaluating the
evidence presented.
(f)
Objections. A Party seeking to object to a ruling on
evidence or procedure shall, at the time a ruling is sought, make a timely
objection or motion to strike and shall state the grounds for the objection or
motion. If a Party does not have the opportunity to object to the ruling at the
time it is made, or to request a particular ruling at an appropriate time, the
Party shall make his objection and state the grounds for it, within three days
of being notified of the action taken or refused.
(g)
Scope of Examination and
Cross Examination. A Party may interrogate any unwilling or
hostile witness by leading questions. A Party may call an adverse party or an
officer, director, or managing agent of a public or private corporation or of a
partnership or association which is an adverse party, and interrogate by
leading questions and contradict and impeach him in all respects as if he had
been called by the adverse Party, and the witness may be contradicted and
impeached by or on behalf of the adverse party also, and may be cross-examined
by the adverse Party only upon the subject matter of his examination in chief.
Any other witness may be cross-examined without regard to the scope of his
testimony, subject only to the Presiding Officer's discretion.
(7)
Briefs. At the close of the evidence, the Presiding
Officer shall fix the terms for the filing briefs. The Presiding Officer may
require the Parties to submit proposed findings of fact and conclusions of law,
a proposed order, and supporting briefs.
(8)
Transcript of
Proceeding.
(a)
Recordings and Transcripts. Testimony and argument at
a hearing before the Presiding Officer shall be recorded either electronically
or stenographically. If the Presiding Officer or any Party arranges for
preparation of a hearing transcript, a copy of the transcript shall be supplied
to each other Party upon request and the other Party shall pay the cost of the
copy. Any Party, upon motion and at his own expense, may order a stenographer
to transcribe the proceedings. In such event, a stenographic record shall be
provided to the Presiding Officer at no expense to the Authority and upon such
other terms as the Presiding Officer shall order.
(b)
Correction of
Transcript. The official transcript may be corrected only to make
it conform to the evidence presented at the hearing. Transcript corrections
must be agreed to by all Parties and may be incorporated into the record only
upon approval by the Presiding Officer. Such corrections shall be made during
the hearing or as soon as practicable after the close of evidence, but not more
than ten days after termination of the hearing or receipt of the transcript,
unless the Presiding Officer orders otherwise. The Presiding Officer may call
for the submission of proposed corrections and may rule on the corrections at
appropriate times during the course of the Adjudicatory Proceeding.
(9)
Settling the
Record.
(a)
Contents
of Record. The record of an Adjudicatory Proceeding shall include
all evidence, including any records, investigation reports, documents, and
stipulations which any Party wishes to be considered by the Presiding Officer
in making his decision. The record may include evidence that was the subject of
an offer of proof. Documentary evidence may be received in the form of copies
or excerpts, or by incorporation by reference. The record may also include
pleadings, memoranda of law, responses to discovery requests, deposition
transcripts, electronic tapes, printouts of electronically stored documents,
exhibits, and other Papers or documents which the Presiding Officer has
specifically designated a part of the record. The record shall be available for
inspection by the Parties upon reasonable notice.
(b)
Evidence After
Completion. Other than post-hearing briefs and memoranda, no
evidence shall be entered into the record after the close of evidence, unless
otherwise ordered by the Presiding Officer.
(10)
Reopening of
Proceeding. On his own motion or on motion of any Party, the
Presiding Officer may at any time before a Tentative or Final Decision is
issued reopen the Proceeding for the purpose of receiving new
evidence.
(11)
Motion
for Reconsideration. Any Party may move for reconsideration of any
decision by the Presiding Officer, including a Final Decision, by filing a
motion setting forth specifically the grounds or statutory provision relied
upon to sustain the motion. Such a motion shall be filed within ten days from
the date a copy of the Final Decision is mailed.
(12)
Further Review.
After the issuance of Final Decision, any Party who has the right to seek
administrative or judicial review of the Decision may file with the appropriate
administrative agency or court.
(13)
Withdrawal of Exhibits. After a Decision has become
final and all appeal periods have lapsed, the Presiding Officer may in his or
her discretion, upon motion, permit the withdrawal of original exhibits by the
Party or Person entitled to the exhibits.
