Current through Register Vol. 46, No. 39, September 25, 2024
(a) Unless otherwise agreed to by the
commission and the party requesting an administrative appeal under section
1808.2 of this Part, the following
procedures shall govern the conduct of hearing on an administrative
appeal.
(b) Hearing procedure.
(1) The hearing officer shall have the power
to rule upon offers of proof and the admissibility of evidence, to regulate the
course of the hearing, to set the location or venue of the hearing, to hold
conferences for the settlement or simplification of issues and the stipulation
of facts, to determine the proper parties to the hearing, to determine the
scope of any discovery procedures, to delineate the hearing issues to be
adjudicated, and to take notice of judicially cognizable facts and general,
technical, or scientific facts. The hearing officer may, with the consent of
the parties, conduct all or part of the hearing or related proceedings by
telephone conference call or other electronic means.
(2) The hearing officer shall cause each
witness to be sworn or to make affirmation.
(3) Any party to a hearing shall have the
right to present evidence, to examine and cross-examine witnesses, submit
rebuttal evidence, and to present summation and argument.
(4) When necessary, in order to prevent undue
prolongation of the hearing, the hearing officer may limit the number of times
any witness may testify, the repetitious examination or cross-examination of
witnesses, or the extent of corroborative or cumulative testimony.
(5) The hearing officer shall exclude
irrelevant, immaterial or unduly repetitious evidence, but the parties shall
not be bound by technical rules of evidence, and all relevant evidence of
reasonably probative value may be received provided it shall be founded upon
competent, material evidence which is substantial in view of the entire
record.
(6) Any party may appear
and be heard in person or be represented by an attorney at law who shall file
an appearance with the commission.
(7) Briefs and oral argument may be required
by the hearing officer and may be permitted upon request made prior to the
close of the hearing by any party. They shall be part of the record unless
otherwise ordered by the presiding officer.
(8) The hearing officer may, as he/she deems
appropriate, issue subpoenas in the name of the commission requiring the
appearance of witnesses or the production of books, papers, and other
documentary evidence for such hearings.
(9) A record of the proceedings and evidence
at each hearing shall be made by a qualified stenographer designated by the
executive director. Where demanded by the petitioner, or any other person who
is a party to the appeal proceedings, or where deemed necessary by the hearing
officer, the testimony shall be transcribed. In those instances where a
transcript of proceedings is made, two copies shall be delivered to the
commission. The petitioner or other persons who desire copies shall obtain them
from the stenographer at such price as may be agreed upon by the stenographer
and the person desiring the transcript.
(c) Staff and other expert testimony. The
executive director shall arrange for the presentation of testimony by the
commission's technical staff and other experts, as he/she may deem necessary or
desirable, to be incorporated in the record to support the administrative
action, determination or decision which is the subject of the
hearing.
(d) Written testimony. If
the direct testimony of an expert witness is expected to be lengthy or of a
complex, technical nature, the presiding officer may order that such direct
testimony be submitted to the commission in sworn, written form. Copies of said
testimony shall be served upon all parties appearing at the hearing at least 10
days prior to said hearing. Such written testimony, however, shall not be
admitted whenever the witness is not present and available for
cross-examination at the hearing unless all parties have waived the right of
cross-examination.
(e) Assessment
of costs.
(1) Whenever a hearing is
conducted, the costs thereof, as herein defined, shall be assessed by the
presiding officer to the petitioner or such other party as the hearing officer
deems equitable. For the purposes of this section, costs include all
incremental costs incurred by the commission, including, but not limited to,
hearing officer and expert consultants reasonably necessary in the matter,
stenographic record, rental of the hall and other related expenses.
(2) Upon the scheduling of a matter for
hearing, the hearing officer shall furnish to the petitioner a reasonable
estimate of the costs to be incurred under this section. The project sponsor
may be required to furnish security for such costs either by cash deposit or by
a surety bond of a corporate surety authorized to do business in a member
state.
(3) A party to an appeal
under this section who desires to proceed in forma pauperis shall submit an
affidavit to the commission requesting the same and showing in detail the
assets possessed by the party, and other information indicating the reasons why
that party is unable to pay costs incurred under this section or to give
security for such costs. The commission may grant or refuse the request based
upon the contents of the affidavit or other factors, such as whether it
believes the appeal or intervention is taken in good faith.
(f) Findings and report. The
hearing officer shall prepare a report of his/her findings and recommendations
based on the record of the hearing. The report shall be served by personal
service or certified mail (return receipt requested) upon each party to the
hearing or its counsel. Any party may file objections to the report. Such
objections shall be filed with the commission and served on all parties within
20 days after the service of the report. A brief shall be filed together with
objections. Any replies to the objections shall be filed and served on all
parties within 10 days of service of the objections. Prior to its decision on
such objections, the commission may grant a request for oral argument upon such
filing.
(g) Action by the
commission. The commission will act upon the findings and recommendations of
the presiding officer pursuant to law. The determination of the commission will
be in writing and shall be filed in commission records together with any
transcript of the hearing, report of the hearing officer, objections thereto,
and all plans, maps, exhibits and other papers, records or documents relating
to the hearing.
