Hearing Procedures

Hearing Procedures. A. Commencement. The Hearing Officer will open the hearing by identifying each of the parties and describing the subject of the hearing. B. Rules of evidence. The strict rules of evidence will not apply; however, all objections must be timely made. The Hearing Officer may limit or exclude testimony which is redundant or not relevant to the issues before the Permit Board. While the Permit Board will not be bound by the strict rules of evidence, it must base all of its determinations on sufficient evidence. C. Sequestration. Any party to the hearing may move to invoke the rule of sequestration and the Hearing Officer may rule on the motion. 1. If the rule is invoked, no witnesses found improperly present in the hearing room during the hearing may testify. 2. The Hearing Officer may waive a violation of a sequestration order if all opposing parties consent to a waiver, or if the presence of the witness sequestered from the hearing does not substantially affect any other party. 3. Each party may have one corporate, agency, or other representative remain throughout the hearing and that representative may also testify as a witness. D. Motions, responses, preliminary matters. The Permit Board may consider motions, responses, and any other preliminary matters prior to opening statements. E. Order of proof. MDEQ staff will first present its proof and analysis and may give a recommendation with regard to the permit in question, followed by presentation of proof by the non-objecting party, if any, and subsequently by the objecting party. F. Opening statements. Each party will be allowed to make a brief opening statement. Opening statements will be given prior to presentation of the party’s evidence to the Permit Board. The statement may include a brief statement regarding the party’s case and the evidence by which the party expects to support his or her case. G. Questioning of witnesses. 1. Pre-filed testimony. Unless the Permit Board or its Executive Director allows an evidentiary hearing without requiring submission of pre-filed testimony, each witness will testify through his or her pre-filed testimony. A witness may present live testimony in the beginning of his or her testimony, as a summary of their pre- filed testimony, for up to 15 minutes. 2. Other testimony. A witness who has not submitted pre-filed testimony in an evidentiary hearing in which it is required will not be allowed to testify unless the witness is a subpoenaed adverse witness or unless the Permit Board so allows or unless all parties to the evidentiary hearing agree to allow the testimony. Such witness will testify, if allowed, through examination by the party sponsoring the testimony. 3. Cross-examination. The Hearing Officer will allow cross-examination which will be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. 4. Redirect testimony. Redirect testimony will be limited to the scope of the cross- examination testimony and will be offered to rebut any allegation or inconsistency raised on cross-examination. 5. Further re-cross examination and rebuttal. The Hearing Officer must permit cross-examination, and redirect examination limited to matters raised on cross- examination, and may permit re-cross-examination limited to matters raised during redirect examination. 6. Questions by Permit Board and Hearing Officer. The Permit Board members and the Hearing Officer may question a witness at any time during the hearing. 7. Re-cross examination will be allowed at the discretion of the Hearing Officer or the Permit Board. H. Witness availability. All witnesses who provide pre-filed testimony must be made available for cross-examination by all other parties and for questioning by the Permit Board. 1. Failure to make witness available. The Hearing Officer may, upon motion of a party to the hearing, strike the pre-filed testimony of a witness who fails to attend the evidentiary hearing from the hearing record. The Hearing Officer, in his or her discretion, may allow pre-filed testimony of an absent witness if the witness is absent due to death or extenuating circumstances to be made part of the record. Parties may agree to allow pre-filed testimony of an absent witness to be introduced into the hearing record. 2. Exception for adverse or impeachment witnesses. Parties are not required to submit pre-filed testimony for adverse witnesses or witness called solely for impeachment purposes (i.e., to attack the credibility of a witness), but these witnesses must be identified in the witness list as specified in the scheduling letter. I. Objections - offers of proof. Grounds for objection to the admission or exclusion of evidence must be stated briefly at the time the evidence is offered. If the objection to the evidence offered is sustained, a proffer may be made for the record which consists of a statement of the substance of the excluded evidence. When a party objects to the admission of evidence, the Hearing Officer will rule on the objection. J. Closing statements. At the conclusion of all testimony, each party may make a brief closing statement.