[Code of Federal Regulations]
[Title 40, Volume 21]
[Revised as of July 1, 2007]
From the U.S. Government Printing Office via GPO Access
[CITE: 40CFR104.9]

[Page 8]
 
                   TITLE 40--PROTECTION OF ENVIRONMENT
 
         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
 
PART 104_PUBLIC HEARINGS ON EFFLUENT STANDARDS FOR
TOXIC POLLUTANTS--Table of Contents
 
Sec.  104.9  Admission of evidence.

    (a) Where the Presiding Officer has directed identification of 
witnesses and production of documentation evidence by a certain date, 
the Presiding Officer may exclude any such evidence, or refuse to allow 
any witness to testify, when the witness was not identified or the 
document was not served by the time set by the Presiding Officer. Any 
such direction with respect to a party's case in chief shall not 
preclude the use of such evidence or testimony on rebuttal or response, 
or upon a showing satisfactory to the Presiding Officer that good cause 
existed for failure to serve testimony or a document or identify a 
witness by the time required. The Presiding Officer may require direct 
testimony to be in writing under oath and served by a certain date, and 
may exclude testimony not so served.
    (b) At the first prehearing conference, or at another time before 
the beginning of the taking of oral testimony to be set by the Presiding 
Officer, the statement of basis and purpose, together with any 
publications or reference materials cited therein, except where excluded 
by stipulation, shall be received in evidence.
    (c) The Presiding Officer may exclude evidence which is immaterial, 
irrelevant, unduly repetitious or cumulative, or would involve undue 
delay, or which, if hearsay, is not of the sort upon which responsible 
persons are accustomed to rely.
    (d) If relevant and material evidence is contained in a report or 
document containing immaterial or irrelevant matter, such immaterial or 
irrelevant matter may be excluded.
    (e) Whenever written testimony or a document or object is excluded 
from evidence by the Presiding Officer, it shall at the request of the 
proponent be marked for identification. Where oral testimony is 
permitted by the Presiding Officer, but the Presiding Officer excludes 
particular oral testimony, the party offering such testimony may make a 
brief offer of proof.
    (f) Any relevant and material documentary evidence, including but 
not limited to affidavits, published articles, and official documents, 
regardless of the availability of the affiant or author for cross-
examination, may be admitted in evidence, subject to the provisions of 
paragraphs (a), (c), and (d) of this section. The availability or 
nonavailability of cross-examination shall be considered as affecting 
the weight to be accorded such evidence in any decision based upon the 
record.
    (g) Official notice may be taken by the Presiding Officer or the 
Administrator of any matter which could be judicially noticed in the 
United States District Courts, and of other facts within the specialized 
knowledge and experience of the Agency. Opposing parties shall be given 
adequate opportunity to show the contrary.