[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: 40CFR179.95]



[Page 289-290]

 

                   TITLE 40--PROTECTION OF ENVIRONMENT

 

         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)

 

PART 179_FORMAL EVIDENTIARY PUBLIC HEARING--Table of Contents

 

                      Subpart E_Hearing Procedures

 

Sec.  179.95  Admission or exclusion of evidence; objections; offers of 

proof.



    (a) Written material identified as direct testimony or as an 

evidentiary exhibit and offered by a party in a hearing, and oral 

testimony, whether on direct or on cross-examination, is admissible as 

evidence unless the presiding officer excludes it (on objection of a 

party or on the presiding officer's own initiative) because it is 

irrelevant, immaterial, or unduly repetitive, or because its exclusion 

is necessary to enforce a specific requirement of this part relating to 

the admissibility of evidence.

    (b) If a party objects to the admission or rejection of any evidence 

or to the limitation of the scope of any examination or cross-

examination, the party shall state briefly the grounds for such 

objection. The transcript shall include any argument or debate thereon, 

unless the presiding officer, with the consent of all the parties, 

orders that such argument not be transcribed. The ruling and the reasons 

given therefor by the presiding officer on any objection shall be a part 

of the transcript. An automatic exception to that ruling will follow.

    (c) 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. If the Administrator in reviewing the record under 

Sec.  179.112 decides that the presiding officer's ruling in excluding 

the evidence was erroneous and prejudicial, the hearing may be reopened 

to permit the taking of such evidence, or, where appropriate, the 

Administrator may evaluate the evidence and proceed to a final decision.



[[Page 290]]



    (d) Official notice may be taken of Agency proceedings, any matter 

that might be judicially noticed by the courts of the United States, or 

any other fact within the knowledge and experience of the Agency as an 

expert agency. Any party shall be given adequate opportunity to show 

that such facts are erroneously noticed by presenting evidence to the 

contrary.