Md. Code Regs. 14.14.03.04

Current through Register Vol. 51, No. 24, December 2, 2024

Section 14.14.03.04 - Procedure for Adjudicatory Hearing on an Application

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.

Md. Code Regs. 14.14.03.04