Hearings and Conferences

(1) Pre-hearing Conference. The Presiding Officer may upon his own initiative or upon the application of any Party, call upon the Parties to appear for a conference to consider: (a) simplifying or clarifying the issues; (b) the possibility of obtaining stipulations, admissions, agreements on documents, understandings on matters already of record or similar agreements which will avoid unnecessary proof; (c) limiting the number of expert witnesses or avoiding similar cumulative evidence, if the case is to be heard; (d) the possibility of settlement or other agreement disposing of all or any of the issues in dispute; and (e) such other matters as may aid in the disposition of the Adjudicatory Proceeding. Those matters agreed upon by the Parties shall be electronically recorded in the presence of the Parties and/or reduced to writing and shall be signed by the Parties, and constitute part of the record. The scheduling of a pre-hearing conference shall be solely within the discretion of the Presiding Officer. (2) Submission Without a Hearing. A Party may elect to waive his right to a hearing and to submit his case upon the record or Papers properly submitted to the Presiding Officer. (3) Prefiled Direct Testimony. The Presiding Officer may, on his own motion, or on motion of any Party, order all Parties to file within a reasonable time in advance of the hearing on the merits the full written text of the testimony of their witnesses on direct examination, including all exhibits to be offered in evidence. The Presiding Officer may also require the filing of written rebuttal testimony within a reasonable time after the filing of the direct testimony described in the preceding sentence. All testimony filed pursuant to this rule shall be subject to the penalties of perjury. Each witness whose testimony is filed pursuant to this rule shall be made available for cross-examination at the hearing. If a witness is not available for cross-examination at the hearing on the merits, the written testimony of said witness shall be excluded from the record unless the Parties agree otherwise. (4) Hearings: When and Where Held. Hearings will be held at a location designated by the Authority. Any Party may, by motion and for good cause shown, request that a hearing be held at some other location. Upon the motion of any Party and upon good cause shown, the Presiding Officer may in his discretion advance a case for hearing. (5) Conduct of Hearings. (a) General. Hearings shall be as formal or informal as may be reasonable and appropriate under the circumstances. (b) Decorum. All Parties, Authorized Representatives, witnesses, and other Persons present at a hearing shall conduct themselves in a manner consistent with the standard of decorum commonly observed in any court. Where such decorum is not observed, the Presiding Officer may take appropriate action. (c) Duties of Presiding Officer. The Presiding Officer shall conduct the hearing, make all decisions regarding admission or exclusion of evidence or any other procedural matters and administer an oath or affirmation to all witnesses. (d) Presentation. 1. Rights of Parties. Subject to the submission of prefiled direct testimony, all Parties have the right to call and examine witnesses, present evidence, to cross-examine witnesses who testify, make objections, submit rebuttal evidence and make opening and closing arguments, and make oral arguments. Cross-examination shall occur immediately after any witness' testimony has been received or as soon thereafter as the Parties agree. The Presiding Officer shall give each Party the opportunity for redirect and recross examination. 2. Order of Presentation. The Petitioner, and all Parties supporting the Petitioner, shall have the right to present their evidence and testimony first and upon completion of such presentation, the Respondent, and all Parties supporting the Respondent, shall have the right to present their evidence and testimony. The Presiding Officer shall have the discretion to vary this order of presentation if it will expedite the Proceeding or clarify the issues raised in the Proceeding; or where there are multiple Parties where the evidence is particularly within the knowledge of one Party, or where Adjudicatory Proceedings have been consolidated. 3. Proof of Violations. Notwithstanding 360 CMR 1.24(5)(d)2., where the appeal concerns Authority action under 360 CMR 2.00, the Authority shall have the burden of going forward with and of proving the occurrence of any contested alleged violations. The proof may consist of facts known to the Authority at the time it took the action and facts that became known to the Authority after that date. Following presentation of the Authority's evidence, the Person appealing the action shall have the burden of presenting and of going forward with any defense to the Authority's allegations. Each matter of controversy shall be determined by the Presiding Officer upon a preponderance of the evidence. 4. Penalty Amount. In an appeal of a penalty assessment notice in which the amount of the penalty is at issue, after the Authority has met its burden of going forward as required by 360 CMR 1.24(5)(d)3., the Petitioner shall have the burden of going forward with and of proving facts to alter the amount of the penalty assessed in the penalty assessment notice. Following presentation of the Petitioner's evidence, the Authority may prove facts to support the amount of the penalty assessed in the penalty assessment notice or an alternative penalty amount. Each matter of controversy shall be determined by the Presiding Officer upon a preponderance of the evidence. (6) Witnesses and Evidence. (a) Witnesses. A witness' testimony shall be under oath or affirmation. (b) Rules of Evidence. Unless otherwise provided by any law, the rules of evidence observed by courts need not be observed in these Adjudicatory Proceedings, but the rules of privilege recognized by law shall be observed. Evidence may be admitted and given probative effect if it is the kind of evidence on which reasonable persons are accustomed to rely in the conduct of serious affairs. In a Proceeding involving Authority action taken under 360 CMR 2.00, the results of sampling and analysis of wastewater conducted according to required sampling and analysis procedures and contained in the official records of the Authority shall be admissible and such results shall be afforded a rebuttable presumption of validity. The weight to be given evidence presented will be within the discretion of the Presiding Officer. (c) Offer of Proof. An offer of proof made in connection with an objection taken to a ruling of the Presiding Officer rejecting or excluding proffered testimony shall consist of a statement of the substance of the evidence which the Party contends would be adduced by such testimony; if the excluded evidence consists of evidence in documentary or written form or reference to documents or records, a copy of such evidence shall be marked for identification and shall constitute the offer of proof. (d) Evidence Included. All evidence, including any records, investigative reports, documents and stipulations, which is to be relied upon in making a Decision must be offered and made a part of the record. Documentary evidence may be received in evidence in the form of copies, excerpts or incorporation by reference. The Presiding Officer may require any Party to submit additional evidence on any matter relevant to the Adjudicatory Proceeding. (e) Administrative Notice. The Presiding Officer may take notice of any fact which may be judicially noticed by Massachusetts courts and, in addition may take notice of general, technical or scientific facts within the specialized knowledge of the Authority. The Presiding Officer shall notify the Parties of the facts so noticed and shall provide the Parties the opportunity to contest the facts. The Presiding Officer may utilize the experience, technical competence and specialized knowledge of the Authority in evaluating the evidence presented. (f) Objections. A Party seeking to object to a ruling on evidence or procedure shall, at the time a ruling is sought, make a timely objection or motion to strike and shall state the grounds for the objection or motion. If a Party does not have the opportunity to object to the ruling at the time it is made, or to request a particular ruling at an appropriate time, the Party shall make his objection and state the grounds for it, within three days of being notified of the action taken or refused. (g) Scope of Examination and Cross Examination. A Party may interrogate any unwilling or hostile witness by leading questions. A Party may call an adverse party or an officer, director, or managing agent of a public or private corporation or of a partnership or association which is an adverse party, and interrogate by leading questions and contradict and impeach him in all respects as if he had been called by the adverse Party, and the witness may be contradicted and impeached by or on behalf of the adverse party also, and may be cross-examined by the adverse Party only upon the subject matter of his examination in chief. Any other witness may be cross-examined without regard to the scope of his testimony, subject only to the Presiding Officer's discretion. (7) Briefs. At the close of the evidence, the Presiding Officer shall fix the terms for the filing briefs. The Presiding Officer may require the Parties to submit proposed findings of fact and conclusions of law, a proposed order, and supporting briefs. (8) Transcript of Proceeding. (a) Recordings and Transcripts. Testimony and argument at a hearing before the Presiding Officer shall be recorded either electronically or stenographically. If the Presiding Officer or any Party arranges for preparation of a hearing transcript, a copy of the transcript shall be supplied to each other Party upon request and the other Party shall pay the cost of the copy. Any Party, upon motion and at his own expense, may order a stenographer to transcribe the proceedings. In such event, a stenographic record shall be provided to the Presiding Officer at no expense to the Authority and upon such other terms as the Presiding Officer shall order. (b) Correction of Transcript. The official transcript may be corrected only to make it conform to the evidence presented at the hearing. Transcript corrections must be agreed to by all Parties and may be incorporated into the record only upon approval by the Presiding Officer. Such corrections shall be made during the hearing or as soon as practicable after the close of evidence, but not more than ten days after termination of the hearing or receipt of the transcript, unless the Presiding Officer orders otherwise. The Presiding Officer may call for the submission of proposed corrections and may rule on the corrections at appropriate times during the course of the Adjudicatory Proceeding. (9) Settling the Record. (a) Contents of Record. The record of an Adjudicatory Proceeding shall include all evidence, including any records, investigation reports, documents, and stipulations which any Party wishes to be considered by the Presiding Officer in making his decision. The record may include evidence that was the subject of an offer of proof. Documentary evidence may be received in the form of copies or excerpts, or by incorporation by reference. The record may also include pleadings, memoranda of law, responses to discovery requests, deposition transcripts, electronic tapes, printouts of electronically stored documents, exhibits, and other Papers or documents which the Presiding Officer has specifically designated a part of the record. The record shall be available for inspection by the Parties upon reasonable notice. (b) Evidence After Completion. Other than post-hearing briefs and memoranda, no evidence shall be entered into the record after the close of evidence, unless otherwise ordered by the Presiding Officer. (10) Reopening of Proceeding. On his own motion or on motion of any Party, the Presiding Officer may at any time before a Tentative or Final Decision is issued reopen the Proceeding for the purpose of receiving new evidence. (11) Motion for Reconsideration. Any Party may move for reconsideration of any decision by the Presiding Officer, including a Final Decision, by filing a motion setting forth specifically the grounds or statutory provision relied upon to sustain the motion. Such a motion shall be filed within ten days from the date a copy of the Final Decision is mailed. (12) Further Review. After the issuance of Final Decision, any Party who has the right to seek administrative or judicial review of the Decision may file with the appropriate administrative agency or court. (13) Withdrawal of Exhibits. After a Decision has become final and all appeal periods have lapsed, the Presiding Officer may in his or her discretion, upon motion, permit the withdrawal of original exhibits by the Party or Person entitled to the exhibits.