[Code of Federal Regulations]
[Title 40, Volume 27]
[Revised as of July 1, 2007]
From the U.S. Government Printing Office via GPO Access
[CITE: 40CFR305.31]

[Page 359-360]
 
                   TITLE 40--PROTECTION OF ENVIRONMENT
 
         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
 
PART 305_COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT 
 
                       Subpart D_Hearing Procedure
 
Sec.  305.31  Evidence.

    (a) General. The Presiding Officer shall admit all evidence which is 
not irrelevant, immaterial, unduly repetitious, or otherwise unreliable 
or of little probative value, except that evidence which would be 
excluded in the Federal courts under Rule 408 of the Federal Rules of 
Evidence (28 U.S.C. appendix) is not admissible. In the presentation, 
admission, disposition,

[[Page 360]]

and use of evidence, the Presiding Officer shall follow the provisions 
regarding confidential business information of 40 CFR part 2, subpart B 
for CERCLA. The commercial or trade secret status of any information 
shall not, however, preclude its being introduced into evidence. The 
Presiding Officer may make such orders as may be necessary to consider 
such evidence in camera, including the preparation of a supplemental 
final order to address questions of law or fact which arise out of that 
portion of the evidence which is confidential or which includes trade 
secrets. For the purpose of recording the hearing, the court reporter 
shall be considered ``a person under contract or subcontract to EPA to 
perform work for EPA in connection with the Act or regulations which 
implement the Act'' pursuant to 40 CFR 2.301(h)(2); unless the affected 
business, as defined in 40 CFR 2.201(d), agrees to some other procedures 
approved by the Presiding Officer.
    (b) Examination of witnesses. Witnesses shall be examined orally, 
under oath or affirmation, except as otherwise provided in this part or 
by the Presiding Officer. A party shall have the right to cross-examine 
a witness who appears at the hearing provided that such cross-
examination is not unduly repetitious.
    (c) Verified statements. The Presiding Officer may admit and insert 
into the record as evidence, in lieu of oral testimony, statements of 
fact or opinions prepared by a witness. The admissibility of the 
evidence contained in the statement shall be subject to the same rules 
as if the testimony were produced under oral examination. Before any 
such statement is read or admitted into evidence, the witness shall 
deliver a copy of the statement to the Presiding Officer, the reporter, 
and opposing counsel. The witness presenting the statement shall swear 
to or affirm the statement and shall be subject to appropriate oral 
cross-examination upon the contents thereof.
    (d) Admission of affidavits and other statements where the witness 
is unavailable. The Presiding Officer may admit into evidence affidavits 
and other verified written statements of witnesses who are unavailable. 
The term ``unavailable'' shall have the meaning accorded to it by rule 
804(a) of the Federal Rules of Evidence.
    (e) Exhibits. Where practicable, an original and one copy of each 
exhibit shall be filed with the Presiding Officer for the record and 
copy shall be furnished to each party. A true copy of any exhibit may be 
substituted for the original.
    (f) Official notice. Official notice may be taken of any matter 
which may be judicially noticed in the Federal courts and of other facts 
within the specialized knowledge and experience of the Agency. Opposing 
parties shall be given adequate opportunity to show that such facts are 
erroneously noticed.