[Code of Federal Regulations]

[Title 40, Volume 23]

[Revised as of July 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 40CFR164.81]



[Page 173-174]

 

                   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 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



[[Page 174]]



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]