Alabama Administrative Code › Title 335 - ALABAMA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT › ENVIRONMENTAL MANAGEMENT COMMISSION › Chapter 335-2-1 - RULES OF PROCEDURE FOR HEARING APPEALS OF ADMINISTRATIVE ACTIONS OF THE ALABAMA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT › Section 335-2-1-.14 - Hearing Procedure

Current through Register Vol. 42, No. 9, June 28, 2024
(1) A
				hearing to contest an administrative action of the Department shall be
				commenced in Montgomery, Alabama within a reasonable time, not to exceed
				forty-five days after the making and filing of a proper request in accordance
				with Rule
				335-2-1-.04.
(2) Upon motion of any of the parties, the
				Commission or Hearing Officer may delay the commencement of the hearing if all
				parties agree to waive the forty-five day period for commencement of the
				hearing set forth in subsection (1) above.
(3) The testimony of all parties and
				witnesses shall be made under oath administered by the Commission or Hearing
				Officer.
(4) All testimony or
				comments given in any hearing before the Commission or Hearing Officer shall be
				electronically or stenographically recorded. Parties wishing to obtain a copy
				of the transcript may make arrangements with the court reporter to receive a
				copy at their expense or may purchase a copy from the Department.
(5) The parties shall not be bound by the
				strict rules of evidence prevailing in the courts. The Commission or Hearing
				Officer shall admit all evidence that is not irrelevant, immaterial, unduly
				repetitious, confidential, privileged or otherwise unreliable or of little
				probative value, except that offers of compromise are not admissible. The
				Commission or Hearing Officer shall preserve the confidentiality of
				trade-secrets and other commercial or financial information. The Commission or
				Hearing Officer may make such orders as may be necessary to consider such
				evidence in camera to address questions of law, fact, or discretion which arise
				out of that portion of the evidence which includes secrets, confidences, or
				privileged information.
(6) Each
				party shall be entitled to respond and present evidence and argument on all
				material issues properly before the Commission. The burden of going forward
				with the evidence shall be on the party requesting the hearing. The hearing
				shall be conducted as a de novo proceeding.
(7) Each party shall be entitled to present
				opening statements and closing arguments, oral or written, or both.
(8) Witnesses shall be examined orally, under
				oath or affirmation, except as otherwise provided in these rules or by the
				Commission or Hearing Officer. Parties shall have the right to cross-examine a
				witness who appears at the hearing provided that such cross-examination is not
				unduly repetitious.
(9) The
				Commission or Hearing Officer may admit and insert into the record as evidence,
				in lieu or oral testimony, statements of fact or opinion prepared by a witness,
				provided such statements are served on all parties not later than five (5) days
				before the hearing. 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 Commission
				or Hearing 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.
(10) The Commission or Hearing Officer may
				admit into evidence depositions of witnesses who are not subject to the
				subpoena power of the Commission or who are unable to be present or to testify
				at the hearing because of death or then existing physical or mental illness or
				infirmity or call to military duty.
(11) Where practicable, an original and seven
				copies of each exhibit shall be filed with the Commission or Hearing Officer
				for the record and a copy shall be furnished to each party. Each party shall be
				responsible for submitting the required number of copies of each exhibit that
				party offers into evidence, except that the Department shall provide the
				required number of copies of any exhibit that is taken from the Department's
				files. A true copy of any exhibit may be substituted for the original. Any
				party who wishes may arrange for the court reporter to make the requisite
				number of copies of each exhibit; however, the requesting party shall pay the
				court reporter for all such copies.
(12) Official notice may be taken of any
				matter judicially noticed in the courts of Alabama and of any scientific or
				technical facts within the specialized knowledge of the agency. Opposing
				parties shall be given adequate opportunity to show that such facts are
				erroneously noticed.
(13) Any
				objection concerning the conduct of the hearing may be stated orally or in
				writing during the hearing. The party raising the objection shall supply a
				short statement of its grounds. The ruling by the Commission or Hearing Officer
				on any objection and the reasons given for it shall be part of the record. An
				exception to each objection shall be automatic and is not waived by further
				participation in the hearing.
(14)
				Whenever evidence is excluded from the record, the party offering the evidence
				may make an offer of proof, which shall be included in the record. The offer of
				proof for excluded oral testimony shall consist of a brief statement describing
				the nature of the evidence excluded. The offer of proof for excluded documents
				or exhibits shall consist of the insertion in the record of the documents or
				exhibits excluded.
(15) At any time
				after the commencement of a hearing to contest an administrative action of the
				Department, the Commission or Hearing Officer may on its own initiative, or on
				the motion of any party, adjourn the hearing to a later time and/or different
				place. If any party raises an issue at hearing which was not included in the
				pre-hearing order, the Hearing Officer shall allow the issue to be raised only
				upon a finding that it is based upon newly discovered evidence that was not
				known and could not have been know at the time of the pre-hearing order. If the
				issue is allowed, the Hearing Officer shall, upon request of the other party,
				delay the hearing for a period of at least five working days, if he determines
				that the party will be prejudiced if no continuance is granted.
(16) Within ten (10) days after the parties
				are notified of the availability of the transcript, or within such longer time
				as may be fixed by the Commission or Hearing Officer, any party may submit for
				consideration of the Commission or Hearing Officer proposed findings of fact,
				conclusions of law, and a proposed order, together with briefs in support
				thereof. The Commission or Hearing Officer shall set a time by which reply
				briefs must be submitted and may set a page limit for said briefs. All
				submissions shall be in writing, shall be served upon all parties, and shall
				contain adequate references to the record and authorities relied
				upon.
(17) A hearing to contest an
				administrative action of the Department is concluded on the date when all
				evidence, other submissions, testimony, comments, briefs, opening statements,
				and closing arguments have been received or heard by the Commission or its
				designated Hearing Officer and all motions have been ruled upon.
Authors:
David A. Ludder, Olivia H.
				  Jenkins
Statutory Authority:
Code of Ala.
					 1975
, §§
											22-22A-5,
					 22-22A-6,
					 22-22A-7,
					 22-22A-8.