[Code of Federal Regulations]
[Title 40, Volume 20]
[Revised as of July 1, 2002]
From the U.S. Government Printing Office via GPO Access
[CITE: 40CFR164.81]

[Page 175-176]
 
                   TITLE 40--PROTECTION OF ENVIRONMENT
 
         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
 
PART 164--RULES OF PRACTICE GOVERNING HEARINGS, UNDER THE FEDERAL 
 
Subpart B--General Rules of Practice Concerning Proceedings (Other Than 
                           Expedited Hearings)
 
Sec. 164.81  Evidence.

    (a) General. The Administrative Law Judge shall admit all relevant, 
competent and material evidence, except evidence that is unduly 
repetitious. Relevant, competent and material evidence may be received 
at any hearing even though inadmissible under the rules of evidence 
applicable to judicial

[[Page 176]]

proceedings. The weight to be given evidence shall be determined by its 
reliability and probative value. In all hearings the testimony of 
witnesses shall be taken orally, except as otherwise provided by these 
rules or by the Administrative Law Judge. Parties, however, shall have 
the right to cross-examine a witness who appears at the hearing, 
provided that such cross examination is not unduly repetitious.
    (b) Report of a committee of the National Academy of Sciences. If 
questions have been submitted to a committee designated by the National 
Academy pursuant to Sec. 164.50(e), the report of the committee, other 
material that may be required by the Administrator and a list of 
witnesses and evidence relied upon shall be received into evidence and 
made part of the record of the hearing. Objections to the report may 
also be made part of the record and go to the weight of its evidentiary 
value.
    (c) Objections. If a party objects to the admission or rejection of 
any evidence or the limitation of the scope of any examination or cross-
examination, he shall state briefly the grounds for such objection. The 
transcript shall include any argument or debate thereon, unless the 
Administrative Law Judge, with the consent of all parties, orders that 
such argument not be transcribed. The ruling and the reasons given 
therefor by the Administrative Law Judge on any objection shall be a 
part of the transcript. An automatic exception to that ruling will 
follow.
    (d) Exhibits. Except where the Administrative Law Judge finds that 
the furnishing of copies is impracticable, a copy of each exhibit filed 
with the Administrative Law Judge shall be furnished to each other 
party. A true copy of an exhibit may, in the discretion of the 
Administrative Law Judge, be substituted for the original.
    (e) Official Notice. Official notice may be taken of Agency 
proceedings, any matter judicially noticed in the Federal courts, and of 
other facts within the specialized knowledge and experience of the 
Agency. Any active party shall be given adequate opportunity to show 
that such facts are erroneously noticed by presenting evidence to the 
contrary.
    (f) Offer of proof. Whenever evidence is deemed inadmissible, the 
party offering such evidence may make an offer of proof, which shall be 
included in the transcript. The offer of proof for excluded oral 
testimony shall consist of a brief statement describing the nature of 
the evidence excluded. If the evidence consists of a document or 
exhibit, it shall be inserted in the record in total. In the event the 
Environmental Appeals Board decides that the Administrative Law Judge's 
ruling in excluding the evidence was erroneous and prejudicial, the 
hearings may be reopened to permit the taking of such evidence, or where 
appropriate, the Environmental Appeals Board may evaluate the evidence 
and proceed to a final decision.
    (g) Verified statements. With the approval of the Administrative Law 
Judge, a witness may insert into the record, as his testimony, 
statements of fact or opinion prepared by him or written answers to 
interrogatories of counsel, or may submit as an exhibit his prepared 
statement, provided that such statements or answers must not include 
legal argument. Before any such statement or answer is read or admitted 
into evidence the witness shall deliver to the Administrative Law Judge, 
the reporter, and opposing counsel a copy of such. The admissibility of 
the evidence contained in such statement shall be subject to the same 
rules as if such testimony were produced in the usual manner and the 
witness shall be subject to oral cross-examination on the contents of 
such statements. Approval for such a procedure may be denied when it 
appears to the Administrative Law Judge that the memory or the demeanor 
of the witness is of importance.

[38 FR 19371, July 20, 1973, as amended at 40 FR 25815, June 19, 1975; 
57 FR 5343, Feb. 13, 1992]