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26.01.02.00.htm 26.01.02.00. Title 26 DEPARTMENT OF THE ENVIRONMENT Subtitle 01 GENERAL PROVISIONS Chapter 02 Procedures for Contested Case Hearings Before the Secretary of the Environment Authority: Environment Article, §1-404; State Government Article, §10-204; Annotated Code of Maryland
26.01.02.01.htm 26.01.02.01. 01 Scope.. A. This chapter applies to contested hearings which the Secretary is required to conduct by statute or regulation except for those hearings for which specific procedural regulations have been promulgated. They do not apply to conferences, investigations, or to proceedings at which the general public has been assembled to provide comments and opinions on a permit or license proposed to be issued by the Department, or to hearings before the Department's Boards and Commissi
26.01.02.02.htm 26.01.02.02. 02 Definitions.. A. The following terms have the meanings indicated.. B. Terms Defined.. 1) "Civil penalty" means a statutorily authorized monetary penalty imposed for a violation of a statute, regulation, permit, or license. Civil penalty does not include statutorily authorized reimbursement of State or federal expenditures.2) "Department" means the Maryland Department of the Environment, or any of its constituent units.. 3) "Final decision maker" means the Secretary of t
26.01.02.03.htm 26.01.02.03. 03 Sanctions.. These regulations shall be construed to secure the just and speedy determination of every action. If a party fails to follow these regulations, either the hearing examiner or the final decision maker, whichever person is appropriate, may enter the orders in regard to the failure as are just, including limiting the issues to be heard and dismissing the request for hearing or entering an order on the merits against a party.
26.01.02.04.htm 26.01.02.04. 04 The Record.. A. The Office of Hearings shall prepare an official record of each hearing. All hearings, including hearings on motions, shall be on the record. The record consists of:1) The charging document or other document giving rise to the appeal;. 2) The request for a hearing;. 3) The notices of all proceedings;. 4) Any prehearing order;. 5) Any motions, pleadings, briefs, petitions, requests, and intermediate rulings;. 6) Evidence received or considered;.
26.01.02.05.htm 26.01.02.05. 05 Notice of the Right to a Hearing.. A. The Department shall provide notification of its action whenever a right to a hearing is provided by law.B. The notification shall include:. 1) A statement of the factual basis for the action;. 2) A reference to the statutory or regulatory provision under which the action is being taken;. 3) A statement of the right to a hearing upon request;. 4) The authority of the Department to hold the hearing;. 5) The specific section o
26.01.02.06.htm 26.01.02.06. 06 Request for Hearing.. A. A person, either directly or through a representative, may request a hearing by mailing or delivering a clear written request in accordance with the notification of the right to a hearing.B. The request shall state that the person desires a hearing in order to review a matter as provided under Department regulations or other applicable law, and should include a copy of the document or charge being appealed.C. The request shall incl
26.01.02.07.htm 26.01.02.07. 07 Hearing Examiner.. All contested cases which are authorized by statute to be conducted by the Department shall be conducted by a hearing examiner.
26.01.02.08.htm 26.01.02.08. 08 Separation of Functions.. A. An individual who has served as prosecutor in an adjudicative proceeding may not serve as hearing examiner or assist or advise a hearing examiner in the same adjudicative proceeding.B. A person who has participated in a determination of probable cause or other equivalent preliminary determination in an adjudicative proceeding may serve as hearing examiner or as a final decision maker, or may assist or advise a hearing examiner o
26.01.02.09.htm 26.01.02.09. 09 Powers and Duties of Hearing Examiners.. A. The hearing examiner shall have the authority and duty to:. 1) Conduct a full, fair, and impartial hearing;. 2) Take action to avoid unnecessary delay in the disposition of the proceedings; and. 3) Maintain order.. B. The hearing examiner shall have complete charge of the hearing, and may permit examination of witnesses, admit evidence, rule on the admissibility of evidence, and adjourn or recess the hearing froC. The hearing examiner s
26.01.02.10.htm 26.01.02.10. 10 Disqualification; Substitution of Hearing Examiners.. A. Hearing examiners may disqualify themselves for any reason which affects or may appear to affect their impartiality, and shall disqualify themselves for the reasons stated in Rule 1231 of the Maryland Rules of Procedure, Rule of Judicial Ethics 2, which provides: "A judge shall not exercise his duties with respect to any matter in which a near relative by blood or marriage is a party, has an interest, or appears as a l
26.01.02.11.htm 26.01.02.11. 11 Notice of Hearing.. A. The Office of Hearings shall serve, or cause to be served, reasonable written notice of the hearing on the parties and to all persons who have filed written petitions to intervene in the matter.B. The hearing notice shall contain:. 1) The date, time, place, and nature of the hearing;. 2) A statement of the right to present witnesses and documents at the hearing;.
26.01.02.12.htm 26.01.02.12. 12 Venue.. Hearings shall be conducted at the offices of the Department unless:. A. Applicable law requires the hearing to be conducted elsewhere; or. B. The hearing examiner determines that for convenience or the interests of justice the hearing shall be conducted at some other reasonable location.
26.01.02.13.htm 26.01.02.13. 13 Failure to Attend Proceeding; Default.. A. If after receiving proper notice a party fails to timely request a hearing, or to attend or participate in a prehearing conference, hearing, or other stage of an adjudicative proceeding, either the hearing examiner or final decision maker, whichever person is appropriate, may proceed in that party's absence, may rely on affidavits, or may conduct hearings as appropriate. Upon a prima facie showing by the moving party,
26.01.02.14.htm 26.01.02.14. 14 Service.. A. When the Department is required to make service of a complaint, other charging document, or other document giving rise to the right to a hearing, service may be made by personal delivery or by mailing to the person to be served a copy of the complaint or other document by certified mail requesting: "restricted delivery―show to whom, date, address of delivery" Service by certified mail under this regulation is complete upon delivery. Service ou
26.01.02.15.htm 26.01.02.15. 15 Certificates of Service.. Whenever a party is required by this chapter to serve a copy of a pleading or memorandum upon another party, a certificate shall be appended to the pleading or memorandum stating:A. To whom the copy was sent;. B. The address to which the copy was sent;. C. The name of the person who sent the copy;. D. The date the copy was sent; and. E. Manner of service..
26.01.02.16.htm 26.01.02.16. 16 Continuances.. On request of any party or on the hearing examiner's own initiative, the proceeding may be continued by the hearing examiner as justice may require. Requests for postponement shall be confirmed in writing, and the written request shall set forth the reason for the request and shall list at least three dates within the 45-day period following the day originally scheduled on which the party and counsel would be available for a hearing, unless the p
26.01.02.17.htm 26.01.02.17. 17 Time Periods.. For good cause the hearing examiner may shorten or extend or waive any time periods provided in this chapter for matters before the hearing examiner. For time periods concerning the exceptions or reconsideration processes, the final decision maker shall make this determination.
26.01.02.18.htm 26.01.02.18. 18 Subpoenas.. A. Requests. Requests for issuance shall specify the name, address, zip code and county, for purpose of service, of the person to be subpoenaed, and the address and telephone number of the requester. Any requests for issuance of subpoenas shall be received in the Office of Hearings not later than 5 working days before the scheduled hearing date, unless good cause is shown why the request could not have been made earlier. If a subpoena requests th
26.01.02.19.htm 26.01.02.19. 19 Appointment of Interpreter.. A. If a party or witness cannot readily hear, speak, or understand the spoken English language, the hearing examiner may appoint a qualified interpreter to provide assistance during a hearing.B. Cost of an interpreter may be charged to the party on whose behalf the interpreter is obtained..
26.01.02.20.htm 26.01.02.20. 20 Appearance of Parties at Hearings; Representation.. A. Any party to a proceeding may be represented by an attorney authorized to practice law in Maryland, or, unless prohibited by law, appear in person or through another legally authorized representative.B. An attorney shall enter his or her appearance with the Office of Hearings. In an enforcement action initiated by the Department, the signing attorney has entered his appearance.C. Unless the appearance
26.01.02.21.htm 26.01.02.21. 21 Discovery.. A. Discovery may be taken only in accordance with the stipulation of the parties. If such a stipulation is entered, then the hearing examiner may issue such orders as are necessary to implement discovery.B. Parties may request governmental documents under the Maryland Public Information Act, State Government Article, §10-611 et seq. Annotated Code of Maryland
26.01.02.22.htm 26.01.02.22. 22 Prehearing Conference.. A. The hearing examiner may hold a prehearing conference to enable the parties to discuss settlement, enter into stipulations, narrow the issues to be litigated, and to resolve other matters preliminary to the hearing.B. A scheduled hearing will not ordinarily be postponed to allow the parties to have a prehearing conference.C. Upon request of a party, the hearing examiner may order that each party make available to the other parties the names and
26.01.02.23.htm 26.01.02.23. 23 Stipulations and Affidavits.. A. Stipulations. The parties may, by stipulation, agree upon any of the facts. A stipulation, when placed in the record, may be regarded and used as evidence at the hearing. The hearing examiner may require additional evidence.B. Affidavits. An affidavit may be admitted in the discretion of the hearing examiner, for good cause shown, as evidence in place of testimony, if the matters contained in it are otherwise admissible.
26.01.02.24.htm 26.01.02.24. 24 Intervention.. A. Upon timely motion under §C, of this regulation, a person shall be permitted to intervene in an action when the person:1) Has an unconditional right to intervene as a matter of law; or. 2) Claims an interest relating to the property or transaction that is the subject of the action, and the person is so situated that the disposition of the action may as a practical matter impair or impede the ability to protect that interest unless it is adequately represent
26.01.02.25.htm 26.01.02.25. 25 Conduct of Hearings.. A. On a genuine issue in a contested case, except as restricted by a statutorily limited grant of intervention or by the prehearing order, each party is entitled to:1) Call witnesses;. 2) Offer evidence and rebuttal evidence;. 3) Cross-examine any witness called by another party; and. 4) Present summation and argument.. B. The hearing examiner may, with consent of the parties, conduct all or part of the hearing by telephone, television, or oth
26.01.02.26.htm 26.01.02.26. 26 Open Hearings.. A. Unless otherwise provided by law, documents, notices, and records in the possession of the Office of Hearings as a result of these contested case proceedings may be inspected by any person as provided in State Government Article, §10-611 et seq. Annotated Code of Maryland.B. Cameras and other photographic equipment may be permitted in the hearing room at the discretion of the hearing examiner.C. The hearing examiner may cause the removal of a
26.01.02.27.htm 26.01.02.27. 27 Order of Proceedings.. A. The case shall be called to order by the hearing examiner.. B. The hearing examiner may explain briefly the purpose and nature of the hearing and may allow counsel or any interested party to be heard for any prehearing objections, exceptions, or motions.C. Any prehearing motion shall be heard and decided by the hearing examiner.. D. The party bearing the burden of going forward shall be the first to offer its case in chief..
26.01.02.28.htm 26.01.02.28. 28 Burdens of Going Forward and Persuasion.. A. When by specific statute or regulation the burden of going forward or the burden of persuasion rests upon a certain party, this regulation does not shift those burdens.B. Except as provided in §A, of this regulation:. 1) A party contesting the Department's intent to deny or refuse to renew a permit or license bears the burden of going forward to establish a prima facie case of entitlement to the permit or license a
26.01.02.29.htm 26.01.02.29. 29 Evidence.. A. The rules of evidence shall be those which are provided for State Government Article, §10-208, Annotated Code of Maryland. The hearing examiner may admit probative evidence that reasonable and prudent individuals commonly accept in the conduct of their affairs and give probative effect to that evidence. The hearing examiner may exclude evidence that is incompetent, irrelevant, immaterial, or unduly repetitious. The hearing examiner shall apply
26.01.02.30.htm 26.01.02.30. 30 Pleadings, Motions, and Briefs.. A. A party shall serve on all other parties a copy of all pleadings and papers filed in the case.. B. Motions Generally.. 1) Any party may make a motion seeking appropriate relief before or during the hearing. If made:. a) Before a hearing, the motion shall:. i) Be in writing;. ii) State concisely the question to be determined;. iii) Be filed not later than 5 days before the date of the hearing; and.
26.01.02.31.htm 26.01.02.31. 31 Decision of the Hearing Examiner.. A. The hearing examiner need not prepare or submit a decision or a proposed decision if the contested case has been withdrawn, or disposed of by stipulation, settlement, consent order, or default.B. The hearing examiner shall decide a case on the basis of the evidence and according to the applicable burden of persuasion. The hearing examiner may use his or her experience, technical competence, and specialized knowledge in the evaluation of ev
26.01.02.32.htm 26.01.02.32. 32 Ex Parte Communications.. A. Generally Prohibited.. 1) Except as provided in §A(2) of this regulation, an individual who is not authorized to participate in the decision-making process of a contested case may not communicate ex parte with an individual who is involved in the process with regard to any issue of law or fact in the contested case.2) An individual who is involved in the decision-making process may communicate with members of an advisory staff of the Depa
26.01.02.33.htm 26.01.02.33. 33 Transcripts; Costs.. A. A record of the proceeding by tape recording or stenographic notes or symbols shall be made at the expense of the Office of Hearings. This record need not be transcribed unless requested by a party, by the hearing examiner, or by the Secretary.B. Any party which desires a copy of the transcript may request one. A party may request the Department to share in the cost of transcription or to waive transcription. For good cause shown, the Offic
26.01.02.34.htm 26.01.02.34. 34 Final Decision.. A. The final decision maker is not bound by the hearing examiner's proposed decision even in those cases when exceptions are not filed.B. If exceptions have not been filed and, after reviewing a proposed decision by a hearing examiner, the final decision maker concludes that he or she is unable to approve that decision as written, the final decision maker shall notify all parties and invite argument from the affected parties on the issues the final decisio
26.01.02.35.htm 26.01.02.35. 35 Exceptions; Requests for Oral Argument.. A. In any case in which the hearing examiner is not the final decision maker, the decision may not be made final until a proposed decision has been served on the parties and an opportunity has been afforded to any party adversely affected, including the Department, to file exceptions and present written argument to the final decision maker.B. Failure to file exceptions constitutes a failure to exhaust administrative remedies and bars futu
26.01.02.36.htm 26.01.02.36. 36 Consolidation.. When proceedings involving a common question of law or fact are pending before the hearing examiner or before the final decision maker, the proceedings may be consolidated. If the proceedings consolidated involve different parties or burdens of going forward or persuasion, procedures may be imposed which will assure an expeditious and just proceeding.
26.01.02.37.htm 26.01.02.37. 37 Stays.. A. Except as prohibited by law, a party which is adversely affected by a final order may request a stay of the order from the final decision maker pending rehearing or judicial review.B. A request for a stay shall be filed with the final decision maker within 10 days of the date of the final order from which the stay is sought.C. A request shall include a statement of the reasons a stay is sought.. D. A request shall include a statement of the grou
26.01.02.38.htm 26.01.02.38. 38 Reconsideration.. A. Requests for Reconsideration.. 1) Within 14 days from the date the final decision maker serves a decision on a party, a party, including the Department, may request reconsideration of the decision.2) The application shall state the grounds for reconsideration.. 3) The final decision maker shall grant or deny the request within 10 calendar days of its submission or the request shall be deemed denied.4) In the discretion of the final decision maker,
26.01.02.39.htm 26.01.02.39. 39 Appeal.. A. Each party is required to exhaust its administrative remedies as a precondition to appealing any issue in a final decision. This exhaustion requirement includes the exceptions process under Regulation .35, which is available when the hearing examiner is not the final decision maker.B. Within 10 days of filing an appeal, the appealing party shall file with the Office of Hearings a request to transmit the record to the appropriate court.
26.01.02.9999.htm 26.01.02.9999. Administrative History Effective date: July 31, 1973. Chapter recodified from COMAR 10.01.03 to COMAR 26.01.02. Regulations .01―10 repealed effective October 16, 1989 (16:20 Md. R. 2183) ―. Regulations .01―39 adopted effective October 16, 1989 (16:20 Md. R. 2183). Regulation .05C adopted effective April 29, 1991 (18:8 Md. R. 864).
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