[Code of Federal Regulations]
[Title 40, Volume 14]
[Revised as of July 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 40CFR78.14]

[Page 476]
 
                   TITLE 40--PROTECTION OF ENVIRONMENT
 
         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
 
PART 78--APPEAL PROCEDURES FOR ACID RAIN PROGRAM--Table of Contents
 
Sec. 78.14  Evidentiary hearing procedure.

    (a) If a request for an evidentiary hearing is granted, the 
Presiding Officer will conduct a fair and impartial hearing on the 
record, take action to avoid unnecessary delay in the disposition of the 
proceedings, and maintain order. For these purposes, the Presiding 
Officer may:
    (1) Administer oaths and affirmations.
    (2) Regulate the course of the hearings and prehearing conferences 
and govern the conduct of participants.
    (3) Examine witnesses.
    (4) Identify and refer issues for interlocutory decision under 
Sec. 78.19 of this part.
    (5) Rule on, admit, exclude, or limit evidence.
    (6) Establish the time for filing motions, testimony and other 
written evidence, and briefs and making other filings.
    (7) Rule on motions and other pending procedural matters, including 
but not limited to motions for summary disposition in accordance with 
Sec. 78.15 of this part.
    (8) Order that the hearing be conducted in stages whenever the 
number of parties is large or the issues are numerous and complex.
    (9) Allow direct and cross-examination of witnesses only to the 
extent the Presiding Officer determines that such direct and cross-
examination may be necessary to resolve disputed issues of material 
fact; provided that no direct or cross-examination shall be allowed on 
questions of law or policy or regarding matters that are not subject to 
challenge in the evidentiary hearing.
    (10) Limit public access to the hearing where necessary to protect 
confidential business information. The Presiding Officer will provide 
written notice of the hearing to the parties, and where the hearing will 
be open to the public, notice in the Federal Register no later than 15 
days (or other shorter, reasonable period established by the Presiding 
Officer) prior to commencement of the hearings.
    (11) Take any other action not inconsistent with the provisions of 
this part for the maintenance of order at the hearing and for the 
expeditious, fair and impartial conduct of the proceeding.
    (b) All direct and rebuttal testimony at an evidentiary hearing 
shall be filed in written form, unless, upon motion and good cause 
shown, the Presiding Officer, in his or her discretion, determines that 
oral presentation of such evidence on any particular factual issue will 
materially assist in the efficient resolution of the issue.
    (c)(1) The Presiding Officer will admit all evidence that is not 
irrelevant, immaterial, unduly repetitious, or otherwise unreliable or 
of little probative value. Evidence relating to settlement that would be 
excluded in the Federal courts under the Federal Rules of Evidence shall 
not be admissible.
    (2) Whenever any evidence or testimony is excluded by the Presiding 
Officer as inadmissible, all such evidence will remain a part of the 
record as an offer of proof. The party seeking the admission of oral 
testimony may make an offer of proof by means of a brief statement on 
the record describing the testimony excluded.
    (3) When two or more parties have substantially similar interests 
and positions, the Presiding Officer may limit the number of attorneys 
or authorized representatives who will be permitted to examine witnesses 
and to make and argue motions and objections on behalf of those parties.
    (4) Rulings of the Presiding Officer on the admissibility of 
evidence or testimony, the propriety of direct and cross-examination, 
and other procedural matters will appear in the record of the hearing 
and control further proceedings unless reversed by the Presiding Officer 
or as a result of an interlocutory appeal taken under Sec. 78.19 of this 
part.
    (5) All objections shall be made promptly or be deemed waived; 
provided that parties shall be presumed to have taken exception to an 
adverse ruling. No objection shall be deemed waived by further 
participation in the hearing.

[58 FR 3760, Jan. 11, 1993, as amended at 62 FR 55488, Oct. 24, 1997]

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