Sec. 10.24.01.11. Evidentiary Hearings

A. General.

(1) Informal Proceedings. At the request of an applicant, and if each interested party waives the right to present evidence, argument, and conduct cross-examination, the reviewer may establish at the prehearing conference informal rules for mediation, structured negotiation, or another consensual procedure for reaching a decision. The procedure shall produce a record upon which the proposed decision can be based.

(2) Reviewer as Presiding Officer.

(a) If an evidentiary hearing is held in accordance with Regulation .10D of this chapter, the reviewer shall preside at the hearing.

(b) The reviewer is empowered to:

(i) Make all rulings as to evidence, testimony, official administrative notice, and the conduct of the evidentiary hearing;

(ii) Set the date, time, and place of each hearing and prehearing and deadline for any submission, and the order for the examination and cross-examination of witnesses;

(iii) Administer oaths and affirmations;

(iv) Prepare oral and written summaries;

(v) Prepare a proposed decision with findings of fact and conclusions of law; and

(vi) Take other actions consistent with the commissioner's duties as reviewer.

(c) The reviewer may be assisted by one or more staff members and one or more assistant attorneys general assigned to the Commission.

(d) The reviewer may delegate to one or more individuals specified in §A(2)(c) of this regulation the responsibility for consideration of a motion for extension of time.

(3) Conduct of Evidentiary Hearings.

(a) An evidentiary hearing need not be conducted according to technical rules of evidence, but shall be conducted in accordance with the Maryland Administrative Procedure Act, State Government Article, Title 10, Annotated Code of Maryland, and these regulations.

(b) Reliable hearsay is admissible.

(c) Rules of privileges are effective to the extent they would be effective in a judicial proceeding in Maryland.

(d) Nonexpert opinion testimony may be considered.

(e) Qualification as an expert lies within the discretion of the reviewer. The qualification of an expert need not be based on academic degrees or learning. Reasonably extensive practical experience with the subject may be sufficient for an expert qualification.

(f) Reliable and probative documents previously filed with or compiled by the Commission or its staff or consultants that are relevant to issues being considered by the Commission may be incorporated by reference into the record of a proceeding by the Commission or, by leave of the reviewer, by a party to the proceeding, upon notice to the parties and an opportunity to object.

(g) The reviewer may take administrative notice of all judicially cognizable facts to the same extent as courts of this State, either on the reviewer's own motion or at the request of a party. The reviewer may also take official notice, without meeting formal evidentiary rules, of general technical or scientific facts within the specialized knowledge of a member of the Commission. A party to the hearing is entitled, on timely request, to an opportunity to show that the Commission should not take administrative or official notice of specific facts and matters, or that the fact or matter to be officially noticed is inapplicable to the proceeding or is incorrect or misunderstood by the Commission.

(4) A party to the hearing may be represented by counsel.

(5) The prehearing conference and the hearing shall be recorded. If an applicant or other person desires a transcript, that person shall make arrangements with the stenographer.

(6) Documents filed in the proceeding shall be served on the reviewer, those specified in §A(2)(c) of this regulation, staff, and each interested party, and shall include a certificate of service.

(7) Motion practice is in accordance with Regulation .10B of this chapter.

B. Prehearing Procedures.

(1) The reviewer shall hold at least one prehearing conference before an evidentiary hearing.

(2) The reviewer shall notify each applicant and interested party of the prehearing conference in writing. The notification shall:

(a) Include the date, time, and place of the prehearing conference or conferences;

(b) Summarize the rules of procedure governing the evidentiary hearing; and

(c) State the dates, if known, for the submission of prefiled testimony and the date, time, and place of the evidentiary hearing.

(3) The principal purpose of the prehearing conference is to expedite the evidentiary hearing. To this end the reviewer may, among other things:

(a) Instruct the parties to:

(i) Formulate and submit a list of genuine contested issues to be decided at the hearing;

(ii) Identify each potential witness, the subject matter of each witness's testimony, and documents to be introduced; and

(iii) Raise and address issues that can be decided before the hearing;

(b) Encourage stipulations as to facts, law, and other matters;

(c) Schedule dates for the submission of prefiled testimony, further prehearings, the hearing, and submission of briefs and documents; and

(d) Rule on any pending motions.

(4) A written summary of the prehearing conference shall be made a part of the record of the proceeding.

(5) The reviewer may record the prehearing conference or have a stenographer present.

(6) A request for the postponement of a hearing shall be made at a reasonable time before the hearing and is granted only for good cause shown, at the discretion of the reviewer.

C. List of Genuine Issues.

(1) The reviewer shall set the list of genuine issues for the evidentiary hearing.

(2) An evidentiary hearing may be held only on those genuine factual issues for which:

(a) There is a significant dispute as to factual issues; and

(b) One of the following is true:

(i) The reviewer designates a genuine issue;

(ii) An applicant or an interested party has made a prima facie case that a particular standard or criteria has not been met by an applicant;

(iii) An applicant has made a prima facie case that it deserves preference over another applicant under that standard or criteria; or

(iv) The reviewer determines that testimony on an issue would be helpful.

D. Direct Written Testimony.

(1) Direct testimony shall be in writing and may not be delivered orally.

(2) A party who wishes to present testimony at the evidentiary hearing shall file written testimony before the hearing in accordance with the schedule set by the Commissioner acting as reviewer.

(3) The written direct testimony shall set forth the conclusions of the person submitting it and all arguments and facts supporting these conclusions.

(4) Written direct testimony shall be verified either under oath at the hearing or by including the statement specified in Regulation .08B(2) of this chapter.

(5) Written direct testimony shall pertain solely to the proposed project and be relevant to that project. Upon notice with an opportunity to object, the reviewer shall separate irrelevant material from the remainder of the record and keep that material apart. Parts of the body of the written direct testimony judged irrelevant by the reviewer shall be so marked and may not be considered by the Commission in its deliberations.

(6) Persons submitting written testimony shall make themselves available for oral cross-examination. Submitted application materials are also subject to cross-examination. Letters submitted into the record which are not considered written testimony are not subject to cross-examination.

E. Cross-Examination.

(1) Cross-examination of each witness shall be live and under oath.

(2) The reviewer and each nonproponent applicant and interested party may conduct reasonable cross-examination of a witness who gave direct or rebuttal testimony.

(3) The reviewer may set reasonable time limits on the cross examination of witnesses.

(4) The reviewer shall set a deadline by which each party shall identify any witness for whom that party does not have cross-examination.

F. Rebuttal Testimony.

(1) After direct testimony has been completed, rebuttal testimony is permitted on any issue specified by the reviewer.

(2) Rebuttal testimony, whether specified by the reviewer to be written or oral, is subject to live cross-examination.

G. Post-Hearing Briefs.

(1) The reviewer may permit the filing of post-hearing briefs by each applicant and interested party.

(2) The reviewer may set a filing deadline and page limit for post-hearing briefs.