“Hearing officer” means the Secretary of the Environment, or his designee, and may include that employee of the Department of the Environment appointed by the Secretary to conduct hearings. Published or circulated notice of the hearing shall contain: The time of the hearing, if required; The place of the hearing, giving the street address, floor, and designated room; The purpose of the hearing, in clear, intelligible language; If necessary, reference to the particular statute which gives authority for the hearing and the proposed regulation. Hearings generally are open to the public although executive sessions are permissible. Regulations affecting the public at large may not be adopted in executive session. If a series of hearings is to be held on the same day, the schedule should be arranged at staggered periods, with brief intervals in between. Requests for adjournments or postponements will be granted only for due cause. Certain evidence may be presented in executive session. When the interests of the parties require that confidentiality be preserved, such as information relating to secret processes or methods of manufacture or production, this information may be withheld from any public hearing. Parties have a right to appear without or with counsel. This may include representation by non-lawyers in quasi-legislative hearings. Parties should bring all pertinent records, documents, and other pertinent matter. Parties may be accorded the right of cross-examination if it is relevant and material to the issues at hand. The right of cross-examination is not generally applicable to agencies conducting quasi-legislative type hearings. As a general principle, the files of a State agency are public records and may be inspected by interested parties to the hearing. There may be exceptions: If information is confidential; If testimony is presented in executive session; Under those imposed conditions set forth in State Government Article, Title 10, Subtitle 5, Part III, Annotated Code of Maryland, which generally provides for the inspection of public records. The legal staff may be consulted with regard to proper control of the inspection of files. The formality of an oath may be dispensed with unless: An oath is required by law (see Environment Article, §2-605(e), Annotated Code of Maryland); or The oath gives some assurances of veracity, formality, or decorum to the hearing. The requesting agency has the affirmative and is examined first, or explains the regulation. Affirmative witnesses are followed by the aggrieved parties, if any, and their witnesses. The requesting agency shall be permitted to rebut their testimony. All parties may be subject to appropriate cross-examination, depending on the type of hearing. Motions to dismiss or strike out testimony are superfluous in administrative hearings and should not be entertained. Each party should be afforded an adequate opportunity to present his case. The strict rules of evidence are generally inapplicable to administrative hearings. The hearing officer may exclude disorderly persons from the hearing. The hearing officer shall receive and mark all exhibits and documents received in testimony, if they are relevant to the case. All hearings should be recorded. An accurate and complete transcript of the hearing shall be made. The record should always indicate clearly who is talking. Exhibits should be clearly marked. Other papers should be described for the record. When questions arise as to admission of testimony and evidence, they should be admitted and the opposite party should be allowed to express his views concerning the admission. Only the hearing officer controls the record. If exhibits must be returned, the hearing officer should photostat or otherwise enter into the record a detailed description of the exhibits and indicate that they are being returned. The record should be generated in a minimum of three copies (one original and two carbons), and should be filed as follows: Original—Office of the Secretary of the Environment for filing by the regulations coordinator; First carbon—Office of the principal program director concerned; Second carbon—Office of the Counsel of the Department of the Environment. Additional copies of the record may be generated and furnished to respondents at their request and expense. Subpoenas should only be issued when necessary and the law governing the issuance of subpoenas will be followed in each individual case, including but not limited to, any procedure that may be established by the Administrative Procedure Act. They may be omitted when an ordinary notice of hearing will suffice. It is sufficient to state in the notice of hearing that upon failure to attend, the matter may be decided upon testimony of parties present. The final decision may be delayed, depending upon the subject matter, unless policy indicates otherwise. The decision, however, should be rendered as rapidly as possible. The decisions generally should consist of the following, unless policy indicates otherwise: A statement of the issues involved, parties, and findings of fact based upon the record; The conclusion, based upon the facts and the action to be taken; for the most part, the conclusion reached will be that of the Secretary of the Environment. The granting of postponement or continuance of a hearing may be within the discretion of the hearing officer depending upon the availability of witnesses, illness, attorneys, agreements or stipulations, and, for the most part, good and sufficient reason. If a hearing falls within the category of adversary or quasi-judicial, it is reasonable to require the appellant or claimant, or his legal representative, to submit reasons for the postponement or continuance at least 5 days in advance of the hearing date. The request should be in writing, signed by the appellant or claimant, or his legal representative, and become a part of the file. In the instance of quasi-legislative hearings, as, for example, when regulations are advertised for promulgation and adoption, the hearing officer should consider the best interest of the public. There is no statutory requirement that these hearings be postponed or continued. Interested parties, by proper public notice, are given an opportunity to submit their data and views in writing before the hearing or to appear in person on the date of the hearing. State Government Article, §10-204, Annotated Code of Maryland Effective date: December 1, 1970 Chapter recodified from COMAR 10.01.02 to COMAR 26.01.01 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 Commissions which are authorized by law to conduct their own hearings. These procedures are intended to supplement the procedures required by law. In the event of conflict, statutory provisions take precedence over these regulations. The following terms have the meanings indicated. Terms Defined. “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. “Department” means the Maryland Department of the Environment, or any of its constituent units. “Final decision maker” means the Secretary of the Environment, that official empowered by statute to render the final agency decision in a contested case, or a designee for the purpose of rendering a final decision in a contested case. “Hearing” means a contested case hearing as defined by the Administrative Procedure Act, State Government Article, §10-201 et seq., Annotated Code of Maryland. “Hearing examiner” means the person designated to preside over an evidentiary hearing in a contested case. “Office of Hearings” means the administrative unit of the Department authorized to conduct hearings in contested cases. “Party” means a person or agency named or admitted as a party, including the Department. “Person” means any individual, receiver, trustee, guardian, personal representative, fiduciary, or representative of any kind and any firm, partnership, association, corporation, or other entity including any public or municipal corporation and any agency, bureau, Department or instrumentality of federal, State, or local government. “Secretary” means the Secretary of the Environment, a designee of the Secretary for the purpose of rendering a final decision in a contested case, or that official empowered by statute to render the final agency decision in a contested case. 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. 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: The charging document or other document giving rise to the appeal; The request for a hearing; The notices of all proceedings; Any prehearing order; Any motions, pleadings, briefs, petitions, requests, and intermediate rulings; Evidence received or considered; A statement of each fact officially noticed; Proffers of proof and objections and rulings on them; Proposed findings of fact or conclusions of law, requested orders, and exceptions; Any records of ex parte communications, as required under Regulation .32 of this chapter; Any tape recorded by the Office of Hearings at the hearing, any original transcript of the tape recording, and any original transcript prepared by a court reporting service; Any final order, initial order, or order on reconsideration; Matters placed on the record after an ex parte communication. Hearings shall be either tape recorded by the Office of Hearings or stenographically reported verbatim. Tapes or originals of the transcript, if one is prepared, shall be filed with the record. Tapes shall be retained for the duration of the appeal period. Upon compilation, the record shall be available for public inspection at the Office of Hearings during normal business hours, unless the contents are otherwise protected by law. The Department shall provide notification of its action whenever a right to a hearing is provided by law. The notification shall include: A statement of the factual basis for the action; A reference to the statutory or regulatory provision under which the action is being taken; A statement of the right to a hearing upon request; The authority of the Department to hold the hearing; The specific section of each statute and regulation, including a procedural regulation, that is pertinent; A statement of the time period within which a hearing shall be requested, and what action the person is required to take in order to timely request a hearing; A statement that unless a hearing is requested, the intended Department action shall become final and binding on all parties. The time period within which a hearing shall be requested is 30 days after notice is served, unless otherwise provided by law. 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. 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. The request shall include a brief statement of the factual and legal basis for the request, and other information required by law. The Department may require the statement to be made on a form if the person is notified of this requirement and is provided a copy of the form in the notice of the right to a hearing. A request for a hearing shall be considered filed on the earlier of: The date the request is actually received in any office of the Department; or Three days after the request has been postmarked by the United States Postal Service. All contested cases which are authorized by statute to be conducted by the Department shall be conducted by a hearing examiner. 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. 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 or final decision maker in the same adjudicative proceeding, unless a party demonstrates grounds for disqualification in accordance with Regulation .10. A person is not disqualified from serving as a hearing examiner or final decision maker at an adjudicative proceeding because of participation at a prior nonadjudicative proceeding involving the same matter. The hearing examiner shall have the authority and duty to: Conduct a full, fair, and impartial hearing; Take action to avoid unnecessary delay in the disposition of the proceedings; and Maintain order. 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 from time to time. The hearing examiner shall have the power to regulate the course of the hearing and the conduct of the parties and their counsel and shall have all powers necessary to implement §§A and B, of this regulation, including, but not limited to, the power to: Administer oaths and affirmations; Issue summonses for witnesses and subpoenas requiring the production of documents; Rule upon offers of proof and receive relevant and material evidence; Consider and rule upon all procedural and other motions appropriate to the proceedings; Examine and call witnesses; Maintain order, limit unduly repetitious testimony, and limit the time for presentations; Grant a continuance for good cause shown; Require that parties submit proposed findings of fact and conclusions of law; Make decisions and take any other appropriate actions authorized by law; Issue the orders as are necessary to secure simplicity in procedure, fairness in administration, and elimination of unjustifiable expense and delay. 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 lawyer. He shall not participate in any matter in which he has a significant financial interest or in which he previously acted as lawyer. For the purpose of this rule, 'near relative' shall mean connection by consanguinity or affinity within the third degree, counting down from a common ancestor to the more remote.” A party may petition for the disqualification of a hearing examiner promptly after receipt of notice indicating that the individual will preside, or promptly upon discovering facts establishing grounds for disqualification. The individual whose disqualification is requested shall determine whether to grant the petition, stating facts and reasons for the determination. If a hearing examiner becomes unavailable, for any reason, before rendering his or her proposed decision, a substitute shall be appointed by the chief hearing examiner. The substitute shall use any existing record and may conduct such further proceedings as are necessary to fairly conclude the hearing and to render a proposed decision. 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. The hearing notice shall contain: The date, time, place, and nature of the hearing; A statement of the right to present witnesses and documents at the hearing; A statement of the right to request subpoenas for witnesses and documents as provided by law; and A statement that a copy of the hearing procedures may be obtained at the Office of Hearings. Hearings shall be conducted at the offices of the Department unless: Applicable law requires the hearing to be conducted elsewhere; or The hearing examiner determines that for convenience or the interests of justice the hearing shall be conducted at some other reasonable location. 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, the final decision maker may issue a final default order against the defaulting party. Following issuance of the final default order, copies shall be mailed by the Office of Hearings to the defaulting party at the party's address where the complaint or other document giving rise to the case was served, or at the party's last known address which shall be stated in the request for a default order, or at both addresses if they differ. The mailing shall include notice of the party's rights under §B, of this regulation, but proof of actual service of the final default order may not be required. Within 15 days after mailing of a final default order, the party may file a written motion requesting that the final default order be vacated or modified, and stating the grounds relied upon. If the hearing examiner or final decision maker finds that there is a substantial and sufficient basis for an actual controversy as to the merits of the action and that it is equitable to excuse the default, the hearing examiner or final decision maker may vacate the final default order or issue such other order as justice requires. If the motion is not granted within 15 calendar days it shall be deemed denied. Notwithstanding the other provisions in this regulation, the final decision maker may issue a final default order against a party if that party waived the opportunity to request the hearing. A final default order is a final decision and is reviewable as such. 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 outside the State may also be made in the manner prescribed by the foreign jurisdiction if reasonably calculated to give actual notice. When the Department is required to make service of any other type of document, service may be made in any manner provided by the Maryland Rules of Civil Procedure for the service of pleadings and papers other than original pleadings. Service upon a party to whom a permit or license or certificate has been issued by the Department may be made by delivering, in the manner provided above, a copy to the party's last known address in the Department's records. In addition, service may be made by any other method allowed by law. 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: To whom the copy was sent; The address to which the copy was sent; The name of the person who sent the copy; The date the copy was sent; and Manner of service. 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 parties agree to schedule beyond the 45-day period. Whenever feasible, a postponed hearing will be rescheduled within the 45-day period. 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. 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 the production of tangibles, books, papers, or other documents, they shall be described with particularity. For subpoenas filed 10 calendar days or less before the scheduled hearing date, service shall be provided by the requester. Issuance of Subpoenas. The Office of Hearings may, on request of any party or upon the hearing examiner's own motion, issue subpoenas requiring the attendance and testimony of witnesses and the production of any evidence, including relevant books, records, correspondence, or documents in the possession or under the control of the witness, at the hearing. Requests for subpoenas may be made ex parte. A subpoena shall show on its face the name and telephone number of the party at whose request it was issued. Service of Subpoenas. Subpoenas for persons may be served by either hand-delivering a copy to the individual named, or by registered or certified mail addressed to the individual at the individual's last known dwelling place or principal place of business. Proof of service may be shown by a verified return by the individual serving the subpoena setting forth the manner of service, or, in the case of service by registered or certified mail, by the returned United States Postal Service receipt. Costs. The costs of serving subpoenas may be charged to the requester. Objections to Subpoenas. A person may object to a subpoena by filing a motion to quash or for other relief before the hearing examiner. The motion shall be filed promptly after service of the subpoena before the time specified in the subpoena for compliance. Enforcement of Subpoenas. Upon failure of any person to comply with a subpoena, the person or agency requesting the subpoena may apply to the appropriate circuit court for its enforcement. 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. Cost of an interpreter may be charged to the party on whose behalf the interpreter is obtained. 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. 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. Unless the appearance is subsequently withdrawn in writing, any notice, decision, or other matter required to be sent to a party may be sent to the attorney by first class mail, postage prepaid at the attorney's address, and the presumptions regarding notices to parties will apply. When any party is represented by an attorney, all submissions of evidence, examination and cross-examination of witnesses, and all objections and motions on the parties behalf shall be made solely by that attorney. 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. Parties may request governmental documents under the Maryland Public Information Act, State Government Article, §§10-611 et seq., Annotated Code of Maryland 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. A scheduled hearing will not ordinarily be postponed to allow the parties to have a prehearing conference. Upon request of a party, the hearing examiner may order that each party make available to the other parties the names and written reports of experts and other witnesses the party expects to call. Unless permitted by the hearing examiner, persons other than parties may not attend the prehearing conferences. At the prehearing conference the following matters may be addressed: Stipulations and admissions of facts, the genuineness of documents, and other matters upon which there is no dispute; Matters of which official notice may be taken; When possible, determinations regarding the admissibility of any written documents, papers, exhibits, testimony, or materials proposed to be introduced at the hearing by each party; A proposed schedule of order for the following: Submission of written briefs, Order of presentation, and Presentation of oral arguments; Settlement possibilities; Determinations regarding the identity and limitations of the number of witnesses; and Rulings regarding issuance of subpoenas, discovery orders, and protective orders. The hearing examiner may also consider such other matters as will promote the orderly and prompt conduct of the hearing. At the discretion of the hearing examiner all or part of the prehearing conference may be conducted by telephone, television, or other electronic means, provided that each participant in the prehearing conference has an opportunity to participate, to hear, and to object. The hearing examiner may prepare a written order reciting the actions taken or to be taken with regard to each of the matters in §E, of this regulation, and this order shall become a part of the record of the case. If a prehearing conference is not held, the hearing examiner may issue a prehearing order to regulate the conduct of the proceedings. 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. 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. Upon timely motion under §C, a person shall be permitted to intervene in an action when the person: Has an unconditional right to intervene as a matter of law; or 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 represented by existing parties. Upon timely motion under §C, a person may be permitted to intervene in an action when the person's claim or defense has a question of law or fact in common with the action. In exercising this discretion the hearing examiner shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties. Conditions upon the intervenor's participation in the proceedings may be imposed, either at the time that intervention is granted or at any subsequent time. These conditions may include limitations to designated issues or requiring two or more intervenors to combine their presentation of evidence, cross-examination of witnesses, and argument. A person desiring to intervene shall file and serve a motion to intervene at least 15 days before the hearing. The motion shall state the grounds for the motion and shall be accompanied by a statement setting forth the claim or defense for which intervention is sought. If the hearing examiner is not the final decision maker: The denial of a motion to intervene under §A is immediately appealable to the final decision maker. A denial under §B is immediately appealable to the final decision maker only if the person seeking intervention alleges that the hearing examiner has abused his or her discretion. All other decisions on motions to intervene may be appealed to the final decision maker only as exceptions to the hearing examiner's proposed decision. 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: Call witnesses; Offer evidence and rebuttal evidence; Cross-examine any witness called by another party; and Present summation and argument. The hearing examiner may, with consent of the parties, conduct all or part of the hearing by telephone, television, or other electronic means, if each participant in the hearing has an opportunity to participate in, to hear, to object, and, except when a telephone is used, to see the entire proceeding while it is taking place. Witnesses and parties acting as witnesses shall be sworn or put upon affirmation to tell the truth. 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. Cameras and other photographic equipment may be permitted in the hearing room at the discretion of the hearing examiner. The hearing examiner may cause the removal of any person whose conduct impedes the orderly progress of the hearing, or may recess the hearing until such time as it may proceed in an orderly fashion. The hearing examiner may exclude from the hearing persons who have not given the hearing examiner advance notice of an intention to attend, if the size of the hearing room is too small to accommodate the presence of that person. A hearing is open to public observation, except for the parts that the hearing examiner states are to be closed under a provision of law expressly authorizing that closure. To the extent that a hearing is conducted by telephone, television, or other electronic means, the availability of public observation is satisfied by giving members of the public an opportunity, at reasonable times, to hear or view the recordings, except for such portions of the hearing as are closed under this section. The case shall be called to order by the hearing examiner. 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. Any prehearing motion shall be heard and decided by the hearing examiner. The party bearing the burden of going forward shall be the first to offer its case in chief. The hearing examiner may alter the order of presentation of evidence and witnesses. The parties may make opening and closing statements. 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. Except as provided in §A, of this regulation: 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 and the burden of persuasion that the permit or license is to be issued; A party contesting the Department's intent to issue or renew a permit or license bears the burden of going forward to establish a prima facie case that grounds exist for denying the license or permit and the burden of persuasion that the license or permit is to be denied; In a proceeding by the Department to revoke or suspend a permit or license, the Department bears the burden of going forward to establish a prima facie case as to the existence of grounds for revocation or suspension and the burden of persuasion that the license or permit is to be revoked or suspended; and In a proceeding to impose a civil penalty or to issue an order, the Department bears the burden of going forward to establish a prima facie case as to the existence of the grounds for imposition of a civil penalty or issuance of an order and the burden of persuasion that the civil penalty is to be imposed or order issued. Except as provided by §§A and B, of this regulation, the party asserting the affirmative of an issue before the hearing examiner has the burden of going forward and the burden of persuasion. A hearing examiner shall find against a party with the burden of: Going forward if that party has not presented sufficient evidence to establish a prima facie case for that party's claim or defense; or Persuasion if that party has not presented evidence sufficient to establish the correctness of its claim or defense by a preponderance of the evidence. 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 a privilege that law recognizes. Evidence, oral or documentary, is not to be excluded solely on the ground that it constitutes hearsay. Expert testimony may be accepted by the hearing examiner if, in the hearing examiner's opinion, the testimony as proffered would aid in an understanding of the case. On motion of any party made before testimony begins, the hearing examiner shall order that witnesses other than parties be excluded from the hearing room except when testifying, and the hearing examiner may do so on his or her own initiative or on motion of any party made after testimony begins. A party that is not a natural person may designate a representative to remain in the hearing room, even though the representative may be a witness. An expert witness who is to render an opinion based on testimony given at the hearing shall be permitted to remain during that testimony. The hearing examiner may order the witness, parties, attorneys, and all other persons present in the hearing room not to disclose to any witness excluded under this regulation the nature, substance, or purpose of testimony, exhibits, or other evidence introduced during the witness' absence. Direct testimony may be received in written form when this will expedite the hearing without substantial prejudice to the interests of any party. Official Notice. The hearing examiner or final decision maker may take official notice of a fact that is: Judicially noticeable; or General, technical, or scientific and within the specialized knowledge of the hearing examiner or final decision maker. Before taking official notice of a fact, the hearing examiner or final decision maker shall: Notify each party; and Give each party an opportunity to contest the fact. A party shall serve on all other parties a copy of all pleadings and papers filed in the case. Motions Generally. Any party may make a motion seeking appropriate relief before or during the hearing. If made: Before a hearing, the motion shall: Be in writing; State concisely the question to be determined; Be filed not later than 5 days before the date of the hearing; and Be accompanied by a memorandum of points and authorities; In the course of a hearing, a motion may be made orally. A reply to a written motion may be filed by any party not later than 15 days after the filing of the motion or on the date of the hearing, whichever is sooner. A hearing may be held to consider a motion. If a hearing is held, all parties shall be given written notice. Failure of a party to attend a hearing on a motion may be grounds for a decision adverse to that nonattending party. Decision. The hearing examiner may grant or deny any motion or may postpone ruling on a motion until after the hearing. If a written motion is granted or denied, the hearing examiner may issue a written decision or state the decision in the record. If a ruling on a written motion is postponed, the ruling may be included in the hearing examiner's proposed decision. A ruling on an oral motion made during the course of a hearing may be included in the hearing examiner's proposed decision or stated in the record. Motion to Dismiss. Upon motion, the hearing examiner may issue a proposed decision dismissing a request for hearing, complaint, civil penalty, or an order of the Department, which fails to state a claim upon which administrative relief may be granted. Briefs, Proposed Findings of Fact and Conclusions of Law. A party may, and at the request of the hearing examiner shall, submit to the hearing examiner a brief on any issue of fact or law involved in the hearing. Proposed findings of fact and conclusions of law may be submitted by any party, unless the hearing examiner concludes that findings of fact and conclusions of law are unnecessary or inappropriate. Written submissions shall be filed in the form, and at the time, that the hearing examiner may designate. 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. 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 evidence. A decision or proposed decision shall be prepared in writing by the hearing examiner and shall contain findings of fact and conclusions of law, separately stated, and an order if appropriate. If the findings of fact are set forth in language that is no more than mere repetition or paraphrase of the relevant provision of law, the decision or proposed decision shall be accompanied by a concise and explicit statement of the underlying facts of record to support the findings. If the hearing examiner required the submission of proposed findings of fact, the decision or proposed decision shall include a ruling on each proposed finding. If the hearing examiner is not the final decision maker, the hearing examiner shall submit the proposed decision to the final decision maker with a copy to each party. Exceptions to the proposed decision may be filed under Regulation .35, and the hearing examiner shall provide written notice to the parties, or to their representatives of record, that any party, including the Department, if adversely affected, may file exceptions to that proposed decision, and may, by specific mention, request an opportunity to give oral argument before the Secretary. If the hearing examiner is the final decision maker, the decision of the hearing examiner is the final decision of the Department subject only to reconsideration under Regulation .38. A copy of the final decision shall be sent to each party. Generally Prohibited. 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. An individual who is involved in the decision-making process may communicate with members of an advisory staff of the Department, with other employees of the Office of Hearings, or with any counsel for the Department who otherwise does not participate in the contested case. Disclosure. An individual who is involved in the decision-making process and who is personally aware of an ex parte communication that is made in violation of §A of this regulation shall: Include in the record of the contested case: Each written communication received; A memorandum that states the substance of each oral communication received; Each written response to a communication; and A memorandum that states the substance of each oral response to the communication; and Send to each party a copy of each communication, memorandum, and response. Rebuttal. A party may rebut an ex parte communication if the party requests the opportunity to rebut within 10 days after notice of the communication. Remedial Action. To eliminate the effect of an ex parte communication that is made in violation of §A of this regulation, the decision maker may: Withdraw from the proceeding; or Terminate the proceeding without prejudice. An order to terminate the proceeding without prejudice shall state the last date by which a party may reinstitute the proceeding. 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. 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 Office of Hearings may pay or advance all or part of the cost. The final decision maker is not bound by the hearing examiner's proposed decision even in those cases when exceptions are not filed. 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 decision maker is reconsidering. 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. Failure to file exceptions constitutes a failure to exhaust administrative remedies and bars future appeal rights, unless the final decision differs significantly from the proposed decision. Exceptions shall be filed with the Office of Hearings within 21 days after the hearing examiner's proposed decision is received. Receipt is presumed to occur 3 days after mailing. Exceptions shall be in writing and contain a concise statement as to each portion of the hearing examiner's determination to which exception is taken and the asserted basis for taking the exception. A copy of the exceptions shall be served on all parties to the proceedings. All parties shall be afforded the opportunity to present written argument to the final decision maker. The final decision maker may hear oral argument and, if it is requested, shall hear oral argument. The time for argument may be limited at the discretion of the final decision maker. The final decision maker shall consider the exceptions filed before rendering the final Department decision. A party which intends to refer to any evidence produced at the hearing before the hearing examiner shall notify the final decision maker of the specific evidence in its request for exceptions. That party is responsible for filing with the final decision maker a copy of the transcript of the hearing, or relevant portions of it, at least 5 days before the scheduled exception hearing, if such a hearing is to be held. If all parties are in agreement, a stipulation of facts may be submitted instead of a transcript. Additional evidence may not be introduced, nor may testimony of witnesses be heard by the final decision maker. All exceptions hearings or reviews shall be conducted on the basis of the record compiled before the hearing examiner. The final decision maker shall issue the final decision including an order if appropriate as soon as practical after the conclusion of the exceptions hearing. Copies of the final decision shall be delivered or mailed promptly to all parties or to their attorneys. 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. 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. 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. A request shall include a statement of the reasons a stay is sought. A request shall include a statement of the grounds for the application for rehearing or judicial appeal. The final decision maker may grant a stay upon such conditions, including security or bond, as the final decision maker determines to be proper. A request for stay may not operate as a stay, or extend the time for appeal. The final decision maker may hold a hearing on a request for a stay, or rule upon the request without a hearing. Unless granted within 10 calendar days, requests for stays will be deemed denied. Requests for Reconsideration. 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. The application shall state the grounds for reconsideration. The final decision maker shall grant or deny the request within 10 calendar days of its submission or the request shall be deemed denied. In the discretion of the final decision maker, enforcement of an order may be stayed until disposition of a request for reconsideration. The scope of any proceeding involving a request for reconsideration is within the discretion of the final decision maker, who may consider facts not presented in the original proceeding and facts arising after the time of the original proceeding, if the final decision maker is satisfied by a showing in advance of the proceeding that: The evidence is material; and There were good reasons for the failure to offer the evidence at the evidentiary hearing. By a new order the final decision maker may change the original order. A request for reconsideration is not a prerequisite to judicial review. 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. 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. Environment Article, §1-404; State Government Article, §10-204; Annotated Code of Maryland 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) In this chapter, the following words have the meanings indicated. Terms Defined. “Department” means the Department of the Environment. “Petition” means a petition to promulgate, amend, or repeal a regulation. “Regulation” is defined in State Government Article, §10-101(e), Annotated Code of Maryland. “Secretary” means the Secretary of the Environment. This chapter applies to all petitions submitted to the Department to promulgate, amend, or repeal a regulation over which the Secretary has rulemaking authority. Any interested person may file a petition requesting the promulgation, amendment, or repeal of any regulation over which the Secretary has rulemaking authority. The petition may be in the form of a letter or any other written form desired by the petitioner. It shall include a detailed description of the new, amended, or existing regulation which the petitioner seeks to have the Department promulgate, amend, or repeal. A statement of reasons and other information in support of the petition shall be included in or accompany the petition. The name, address, and telephone number of the petitioner shall be included in the petition. The petition should be addressed to the Regulations Coordinator, Department of the Environment, Herbert R. O'Conor Building, 201 West Preston Street, Baltimore, Maryland 21201. Petitions will be considered submitted upon receipt in the office of the Regulations Coordinator. Within 60 days after receipt of the petition, the Secretary will either deny the petition (stating the reasons for denial) or initiate rulemaking proceedings. The Secretary may deny a petition to promulgate, amend, or repeal a regulation, for any reason permitted by law, including, but not limited to: That the Secretary does not have the authority to grant the petition; That the Department does not have adequate information or resources to evaluate the petition; That the Department does not have adequate resources to implement the requested regulation if it is adopted; That the Secretary previously adopted a regulation dealing with the same subject matter as that of the petition and rejected the position taken by petitioner at that time, or the petitioner unreasonably failed to make his position known at that time; or That, in the discretion of the Secretary, the requested regulation change is contrary to or inconsistent with Departmental policy. Rulemaking proceedings may include any type of action which the Secretary is authorized or required by law to take when promulgating, amending, or repealing regulations, including: Conducting studies (either before or after proposal of the regulation in the Maryland Register) to gather information in support of the regulation; Advance notice of proposed rulemaking if the Secretary determines that additional information or public comment is necessary or desirable before a proposed regulation can be formulated; Referral (either before or after proposal of the regulation in the Maryland Register) to advisory councils or other official or quasi-official agencies or groups responsible for reviewing the regulation; Proposal of the regulation in the Maryland Register; Reproposal of the regulation proposed in the Maryland Register if the Secretary determines that, before final adoption, the proposed regulation must be altered so that it is substantially different from its original text; Modification of the regulation change requested by the petitioner, either in form or in substance, and either before or after proposal in the Maryland Register, to better reflect the Secretary's responsibilities than reflected by the petitioner's request. Despite the initiation of rulemaking proceedings, the Secretary may decide not to finally promulgate, amend, or repeal the requested regulation. The Secretary will send written notices to the petitioner and any other person requesting notification in accordance with this section, as follows: If the petition is denied, notice of the denial (including the reasons for the denial) will be sent within 60 days of receipt of the petition. When the requested (or modified) regulation appears in the Maryland Register, notice of this event will be sent at the time of the appearance in the Maryland Register. When the Secretary finally disposes of the requested regulation (final promulgation, amendment, repeal, or a decision to discontinue the rulemaking), notice will be sent at this time. If the final disposition is a decision to discontinue the rulemaking, the notice will include a statement of the reasons for the discontinuance. A file will be maintained by the Department of all petitions submitted and their disposition. This file will be available for public inspection as provided in State Government Article, Title 10, Subtitle 6, Part III, Annotated Code of Maryland. State Government Article, §10-123, Annotated Code of Maryland Effective date: November 9, 1981 (8:22 Md. R. 1784) Chapter recodified from COMAR 10.01.07 to COMAR 26.01.03 These regulations set out the procedures for filing requests with the Department of the Environment for the inspection and copying of records under State Government Article, §§10-611—10-628, Annotated Code of Maryland. It is the policy of the Department to facilitate public access to records, when this access is allowed by law, by minimizing costs and time delays to persons requesting information. The following terms have the meanings indicated. Terms Defined. “Act” means State Government Article, §§10-611—10-628, Annotated Code of Maryland. “Applicant” means any person requesting disclosure of public records. “Compelling need” means that failure to obtain the requested information on an expedited basis could reasonably be expected to: Present an imminent threat to human life or safety; Present an imminent threat of loss of due process rights; Cause significant financial loss; or Be of immediate public interest. “Custodian” means an authorized person employed by the Department having personal custody and control of the public records of the Department. “Department” means the Department of the Environment. “Facility” means a hospital or related institution as defined in Health-General Article, §19-301. “Official custodian” means the person who is responsible for the maintenance, care, and keeping of the public records of the Department. Unless otherwise provided by law, the Secretary of the Environment is the official custodian. “Public records” means any paper, correspondence, form, book, photograph, photostat, film, microfilm, sound recording, map, drawing or other written document, regardless of physical form or characteristics. “Public records” includes all copies that have been made or received by the Department in connection with the transaction of public business and includes the salaries of all employees of the Department, both in the classified and nonclassified service. “Secretary” means the Secretary of the Environment. “Working day” means every day except Saturdays, Sundays, and State holidays. “Written documents” means all books, papers, maps, photographs, cards, tapes, recordings, computerized records, or other documentary material, regardless of physical form or characteristics. Any person may request to inspect or copy any public record that is in the custody and control of the Department. Normally, the custodian shall make public records available for inspection by an applicant without demanding a written request. However, the custodian may require a written request if the custodian reasonably believes that the Act or any other law may prevent the disclosure of the record to the applicant or when the custodian believes that a written request will materially assist the Department in responding to the request. If the applicant is requesting a copy of any public record, the custodian may require a written request. A written request shall contain the applicant's name, address, telephone number, and signature, and shall briefly describe the record sought. A written request for a record in the custody and control of the Department shall be addressed to the custodian of the record. If the custodian of the record is unknown to the applicant, the request may be addressed to the Secretary. If the custodian decides to grant a written request for inspection, he shall produce the record for inspection immediately or within a reasonable period, not to exceed 30 days from the date of the request, if this period of time is needed to retrieve the information. If the custodian decides to deny the written request, he shall do so within 30 days of the written request and immediately upon deciding to deny the request, notify the applicant of the denial. The notification shall be in writing and shall state the reason for denying the request and include a citation to the statute or regulation that provides the basis for the denial. If a requested public record is not in the custody or control of the person to whom written application is made, that person shall, within 10 working days of the receipt of the request, so notify the applicant. If that person knows the name of the custodian of the record or the location or possible location of the record, this information shall also be given to the applicant. With the consent of the applicant, any time limit imposed by §§A—C of this regulation, may be extended for an additional period not to exceed 30 days. Expedited Processing. If the applicant demonstrates a compelling need for the information, a request for expedited processing may be granted. A demonstration of a compelling need shall be: Made in the request for expedited processing; and Certified under oath to be true and correct by the applicant. Determinations to grant or deny expedited processing are within the discretion of the Department and shall be made on a case-by-case basis. Unless prohibited by law, the custodian may notify any person who could be adversely affected by disclosure of a record to the applicant that a request for inspection or copying of the record has been made. The custodian may consider the views of that person before deciding whether to disclose the record to the applicant. If the public record requested is in the custody and control of the person to whom written application is made, but is not immediately available for inspection or copying, the custodian shall notify the applicant of this fact within 10 working days of the receipt of the request and shall set a date and time, within a reasonable period of time, when the custodian will make the record available to the applicant for inspection or copying. If the requested record has been destroyed or lost, the custodian shall notify the applicant of this fact within 10 working days of the request and shall explain in the response the circumstances of the destruction or loss. If the written request is denied by the custodian for a reason other than that the record is temporarily unavailable, the applicant may request an administrative hearing on the denial within 30 days after receipt of the written notification of denial. If a hearing is requested by the applicant, the hearing shall be a contested case hearing. The hearing shall be governed by State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland, and COMAR 26.01.02. If the administrative hearing results in a total or partial denial of the written request, the applicant may then file an appropriate action in the circuit court under State Government Article, §10-623, Annotated Code of Maryland. If the applicant chooses not to request a hearing under §A of this regulation, the applicant may file an action for judicial enforcement under State Government Article, §10-623, Annotated Code of Maryland, without exhausting the administrative remedy. If, in the opinion of the official custodian, disclosure of any public record which is otherwise required to be disclosed under the Act would do substantial injury to the public interest, the official custodian may temporarily deny the request in writing. In these cases, the official custodian shall apply within 10 working days of the denial to the appropriate circuit court for an order permitting him to continue to deny or restrict the disclosure. Notice of the application filed with the circuit court shall be served upon the applicant by the custodian in the same manner provided for service of process by the Maryland Rules of Procedure. Department Fee Schedule. Copies. Except as provided below, the charge for each copy is 30 cents per page when reproduction can be made by photocopying machine within the Department. This charge shall increase to 32 cents July 1, 2001, 34 cents July 1, 2003, and 36 cents July 1, 2005. When records are not susceptible to photocopying (for example, punch cards, magnetic tapes, and microfilm), the charge for reproducing the record will be determined on a case-by-case basis at actual cost. For preprinted material, the charge will be the cost to the Department plus 10 percent. For preprinted material which is disseminated by the Department for the education or general welfare of the people of the State, there will be no charge or a charge equal to the normal charge for this material. For other preprinted material, the charge will be 2 cents per page or the established price. For oversized copies (for example, blueprints), the charge shall be $2 per page. For copies of computer files, the charge will be the actual cost of hardware or software necessary to make the copies, the employee's time, and the cost of the materials to convey the copies such as tapes, diskettes, or paper. Certification of Copies. When a person requests that copies of records be certified copies of the originals, a cost of 47 cents per page shall be charged. In the discretion of the custodian, a charge need not be made if the total amount of the fee is less than $2. If the fees for copies, printouts, photographs, or certified copies of any record are specifically prescribed by a law other than the Act, the specific fee contained in that law shall determine the amount charged for that record. If the custodian is unable to copy a record within the Department, he shall make arrangements for its prompt reproduction elsewhere. The custodian shall collect from the applicant a fee that will be determined on a case-by-case basis at actual cost. Instead of collecting a fee from the applicant, the custodian may allow the applicant to pay it directly to the public or private facility making the reproduction. Before reproducing a record, the custodian shall estimate the cost of reproduction and obtain agreement of the applicant that the cost shall be paid. The custodian shall demand prepayment of an estimated fee before reproducing the record if the applicant has failed to pay previously assessed fees within 30 days from the date of billing or if the estimated cost of the fee is in excess of $250. Fees for Time Expended. Except as provided in §F of this regulation, the official custodian may charge reasonable fees for the official's or employee's time expended searching for requested records or for any time expended preparing records for inspection and copying. The fees are assessed in accordance with the following fee schedule: Fees for computer search time consist of the employee's time in addition to the direct costs of operating the computer to conduct the search. Except as provided in §I of this regulation, the official custodian may not charge any search or preparation fee for the first 2 hours of official or employee time that is needed to respond to a request for information. If the applicant requests the custodian to waive or reduce any fee charged pursuant to this chapter, the custodian may waive or reduce the fee after the Department determines that the waiver or reduction is in the public interest. If the applicant requests that copies be mailed or delivered to the applicant, the custodian may charge the applicant for the cost of postage or delivery to the applicant. Multiple Requests. For purposes of determining the appropriate fees, multiple requests may be aggregated if: The applicants are the same individuals or are employed, retained, or are otherwise related to a common applicant; The requests are for the same or related subject matter, involve the same property or entity, or seek the same information from different entities; The individual requests when aggregated would exceed 2 hours search and preparation time, and individually would require less than 2 hours search and preparation time; and The requests have been received within a reasonable period of time as determined by the custodian to be considered a single request. Multiple requests may be aggregated if the Department determines that processing multiple requests promotes administrative efficiency and represents the most efficient use of State resources. An applicant may inspect any public record during the normal working hours of the Department. Inspection will take place where the document is located unless the custodian determines that another location is more suitable. State Government Article, §10-611 et seq., Annotated Code of Maryland Effective date: October 12, 1981 (8:20 Md. R. 1635) Regulations .01, .02B, and .14 amended, .07 and .09 repealed, and new .07 adopted effective July 16, 1984 (11:14 Md. R. 1250) Regulations .02B and .03 amended effective July 29, 1985 (12:15 Md. R. 1516) Regulation .07-1 adopted effective July 29, 1985 (12:15 Md. R. 1516) Regulations .07-1 and .08 recodified to Regulations .08 and .09 Chapter recodified from COMAR 10.01.08 to COMAR 26.01.04 Chapter revised effective March 18, 1991 (18:5 Md. R. 595) Regulation .02 amended effective October 4, 1999 (26:20 Md. R. 1548) Regulation .07E adopted effective October 4, 1999 (26:20 Md. R. 1548) Regulation .13 amended effective October 4, 1999 (26:20 Md. R. 1548) These regulations set out procedures for persons in interest to request the correction or amendment of personal records in the Department of the Environment under State Government Article, §10-625, Annotated Code of Maryland. A person in interest as defined in State Government Article, §10-611(e) may request the Department to correct or amend any personal records pursuant to State Government Article, §10-625. The person in interest shall request the correction or amendment in writing. Each request shall: Identify the personal records the person is seeking to correct or amend; State the precise correction or amendment requested; State the reason the correction or amendment is sought; Include the statement that the personal records are, to the person's belief, currently inaccurate or incomplete. A request for correction or amendment of the records shall be filed with the Department by addressing it to the custodian of the record. If the custodian is unknown to the person in interest, the request may be addressed to the Secretary. A request for correction or amendment will be considered filed with the Department when received, only to the extent that it reasonably complies with Regulation .03 of this chapter. If a request does not reasonably comply with Regulation .03, it shall be returned to the person with an explanation of the reason for the return and a statement that, upon completion, it may be refiled with the Department. Within 30 days after the completed request for correction or amendment that complies with Regulations .03 and .04 of this chapter is received, the custodian of the record shall: Make the requested correction or amendment and inform the person of the action; Inform the person in writing of the: Department's refusal to make the requested correction or amendment, and Reason for the refusal; or Inform the person in writing that the request will not be acted on because: The person is not a person in interest; The records sought to be corrected or amended are not personal records; The person requesting the correction or amendment is not entitled to inspect the records under State Government Article, §10-615—10-619; or Of any other reason that is authorized by law. If the Department's final determination under Regulation .06 of this chapter is to refuse the requested correction or amendment, as authorized by Regulation .06B of this chapter, the person in interest may file with the Department a concise statement of the reasons for: The requested correction or amendment; and Disagreement with the Department's refusal to make the correction or amendment. The statement specified in Regulation .07 shall be filed on pages not exceeding 8-1/2 × 11 inches in size. Only one side of the page shall contain the statement. Not more than 5 pages will be accepted by the Department in connection with a single request for correction and amendment. When the Department discloses to a third party information from personal records about which a statement in compliance with Regulations .07 and .08 of this chapter has been filed, the Department shall furnish a copy of the statement to the third party. A person may request an administrative review within the Department, by filing a request for review with the Secretary, if the person has been denied: An amendment or correction of a record; The right to file a statement; or The right to have a statement to a third party forwarded pursuant to Regulation .09 of this chapter. A request for review shall be filed within 30 days of the date the person is advised of the Department's action. The review proceedings shall be conducted in accordance with State Government Article, §10-201 et seq., Annotated Code of Maryland, and the administrative hearing regulations of the Department. State Government Article, §10-613(b); Environment Article, §1-404; Annotated Code of Maryland Effective date: April 8, 1985 (12:7 Md. R. 702) Chapter recodified from COMAR 10.01.11 to COMAR 26.01.05 The purpose of this chapter is to prescribe standards, policies, and procedures for the auditing of grants and contracts of the Department of the Environment with vendors, providers of service, and local health departments. This chapter shall apply to all contracts and grants made by the Department of the Environment with private vendors, grantees, and local health departments for which an audit is provided as described in State Finance and Procurement Article, §7-404, Annotated Code of Maryland. The audit shall determine whether funds were spent in accordance with the contract or grant agreement. The auditor shall review expenditures and revenues to determine if they are consistent with the approved budget and supported by documentation in accordance with the contract or grant agreement and generally accepted accounting principles. The audit shall establish amounts due to or from the State by comparison of budgeted, reported, and audited expenditures net of revenues and funded amounts. The audit findings shall be the basis for making a final settlement of the grant or contract. The following terms have the meanings indicated. Terms Defined. “Contract” means a formal agreement between the Department of the Environment and a provider of services to conduct a program or perform specified services for a consideration. “Expenditures” means disbursement of funds to pay vendors and employees for goods or services provided. “Grant” means an award of financial assistance to an eligible recipient under programs that provide for this assistance based on review and approval of an application setting forth a proposed activity or program. “Grantee” means that institution, public or private agency, corporation, organization, or other legally accountable entity that receives a grant and assumes legal and financial responsibility and accountability both for the awarded funds and for the performance of the grant supported activity. “Revenues” mean monies generated by the program, such as client fees, payments by third parties, contributions and interest earned on deposited grant funds. “Sub-grantee” means one of two or more entities whose activities, individually and collectively, are intended to fulfill the purpose of the grant program pursuant to an agreement between the sub-grantee and the grantee. The Secretary of the Environment shall provide for a periodic examination of the accounts and records of grantees and local health departments receiving funds under contracts and grants with the Department. In addition, periodic audits shall be conducted of the accounts and records of vendors providing purchase of care services for children, juveniles, and adults in non-governmental facilities. The purpose of the audit is to determine if the expenses incurred for which reimbursement was received were in accordance with allowable cost guidelines of the grant award and contractual agreement. Finance and Administration of the Department of the Environment shall be responsible for auditing the accounts and records of all grantees, local health departments, and vendors providing purchase of care services under grants and contracts with the Department, except for those grants and contracts with local governments for which audits have been conducted in accordance with the Single Audit Act of 1984. If these audits are not conducted, or are conducted but do not satisfy the information requirements of the Department, Finance and Administration shall be responsible for such further auditing as it deems necessary under the circumstances. The audits shall be conducted in accordance with the terms of the grant or contract, or both, and in accordance with allowable cost guidelines of the Department of the Environment and its various administrations. Finance and Administration of the Department of the Environment may audit a sub-grantee, notwithstanding the responsibility of the primary grantee when it is in the interest of the State to do so. The Department, when it elects to audit a sub-grantee, shall inform the primary grantee, in writing, that the primary grantee is absolved of the responsibility stated in Regulation .05C, of this chapter. Finance and Administration shall conduct an exit conference upon the conclusion of the audit. Before the exit conference the grantee, vendor, or local health department shall be given a draft audit report containing all findings, exceptions, and recommendations of the auditors. In addition, the draft report shall provide detailed information pertaining to amounts due to or from the State resulting from the audit. Finance and Administration, after consideration and evaluation of additional information and evidence presented subsequent to the promulgation of the draft audit report, shall issue a final audit report. The final audit report shall be distributed to the: Grantee, provider, vendor, or local health department; Finance and Administration of the Department of the Environment, as applicable; Director of the appropriate program administration of the Department of the Environment. Finance and Administration in the final audit report shall: Address and explain each exception identified by the auditor; Make recommendations for correction of each exception cited in the report; Specify amounts due and to whom; Comment on any other issue warranting attention. The audits shall be performed at the intervals and in the manner approved and determined by the Secretary of the Environment or Director of the appropriate program administration, after consultation with the Chief of Finance and Administration. The grantee, provider, and local health departments shall provide full disclosure of all accounting, financial, and other records as needed, to Finance and Administration during regular business hours of the audited organization. The grantee, provider, and local health department shall retain all accounts and records of the grant or contract for a period of 5 years following the close of each fiscal year for audit by the Department. Each primary grantee shall be responsible for auditing sub-grantees in accordance with the chapter. Each grantee shall maintain detailed accounting records as to receipts and expenditures of grant funds pertaining to the direct administration of the program. Each sub-grantee is accountable to the primary grantee, who is responsible directly to Finance and Administration of the Department of the Environment. Revenues collected as a result of sale of goods and services rendered by persons or facilities receiving grant funds shall be credited to the grant program, and be applied as a reduction of the gross expenditures of the program. These revenues shall include fee collections, third-party payments, and proceeds from sales of goods obtained or manufactured with labor and materials paid for with grant funds. Revenues shall also include interest earned on deposited grant funds and contributions, with the exception of those contributions which are undesignated. The grantee, provider, or local health department shall have the right to present additional information and evidence to support its position relative to the audit findings. This information and evidence may be presented at the exit conference or at any time before the issuance of the final audit report. State Finance and Procurement Article, §7-404, Annotated Code of Maryland Effective date: August 12, 1985 (12:16 Md. R. 1605) Chapter recodified from COMAR 10.04.03 to COMAR 26.01.06 This chapter applies to all public informational and contested case hearings required under Environment Article, §§5-203 and 5-506, Annotated Code of Maryland, pertaining to the conservation, protection, and use of water resources in the State. These procedures are intended to supplement the procedures required by law, and do not apply to investigations or informal meetings. In the event of a conflict between this chapter and COMAR 08.01.04, this chapter applies. In this chapter, the following terms have the meanings indicated. Terms Defined. “Administration” means the Water Management Administration of the Department of the Environment. “Administrative Procedure Act” means State Government Article, §10-201 et seq., Annotated Code of Maryland. “Appropriate local official” means the: County executive or president of the county legislative body; or Mayor or chief administrative official for any city or town in which the proposed permitted activity takes place. “Completed application” means an application for a Subtitle 5 permit which the Administration has determined is complete under the applicable statutes and regulation. “Contested case hearing” means an adjudicatory hearing as defined by the Administrative Procedure Act. “Contiguous property” means, for: Water appropriation or use permit applications, those properties having a common boundary with the applicant's property; or Waterway construction permit applications, those properties which lie within the 100-year floodplain and have a common boundary with the applicant's property. “Department” means the Department of the Environment. “Director” means the Director of the Water Management Administration. “Filed” means received at the office of the Director of the Water Management Administration, 2500 Broening Highway, Baltimore, MD 21224, including received by mail, facsimile machine, or personal delivery. “Hearing examiner” means hearing examiner, hearing officer, administrative law judge of the Office of Administrative Hearings, or other person designated to conduct a contested case hearing. “Interested persons list” means the mailing list of persons interested in a Subtitle 5 permit application that is compiled by the Department and includes: Contiguous property owners; Appropriate local officials; and Individuals who comment on, request hearings, or make inquiries about an application during any phase of the Department's application review process. “Office of Administrative Hearings” means the unit of State government authorized to conduct contested case hearings. “Presiding official” means a representative of the Administration designated by the Director to conduct public informational hearings under this chapter. “Public informational hearing” means the informational hearing conducted under Environment Article, §5-506, Annotated Code of Maryland, at which the permit applicant, the Administration, and interested persons may offer facts, exhibits, questions, and comments concerning an application for a permit. “Requester” means the person requesting a contested case hearing who has a specific legal right, duty, interest, or privilege different from the general public which is, or may be, adversely affected by the determination to grant or deny a Subtitle 5 permit. “Subtitle 5 permit” means a permit issued under Environment Article, §§5-502 and 5-503, Annotated Code of Maryland, including those pertaining to water appropriation and use, waterway construction, and waterway obstruction. An applicant for a new or modified Subtitle 5 permit shall submit to the Administration a list of the names and addresses of contiguous property owners and appropriate local officials who have been served with a notice of application by the applicant. The Administration may consider evidence of an easement or right-of-way secured from a contiguous property owner as satisfaction of the notice requirement to a contiguous property owner under this section. Within 30 days of the Administration's determination that a Subtitle 5 permit application is complete, the Administration shall issue a notice of completed application and opportunity for a public informational hearing on the application in accordance with all of the following. The notice shall be: Mailed to each person on the interested persons list, and the Administration may add additional individuals and public officials to the interested persons list as appropriate; Published for at least 1 business day in a newspaper of general circulation in the county, with the applicant bearing the cost of the newspaper notice; Published in the Maryland Register in accordance with State Government Article, §7-214, Annotated Code of Maryland. Contents. The notice required under §B of this regulation shall include: The name and address of the applicant; A description of the location and the nature of the activity for which the permit has been sought; A reference to the applicable statutes or regulations governing the application process; A statement that any further notices concerning the application will be provided only by mail to those persons on the interested persons list; A description of how persons may: Submit written comments or information about the application, Request a public informational hearing, or Request inclusion on the interested persons mailing list; A statement of the deadline by which written comments, information, or hearing requests shall be received by the Administration; and The name, address, and telephone number of the office within the Administration from which information about the application may be obtained. Time. A request for a public informational hearing shall be filed within 14 calendar days after publication of the notice required under §B of this regulation. Waiver of Public Informational Hearing. The Department may waive the holding of a public informational hearing if the permit application is of the type listed in Environment Article, §5-506(b), (d), or (e), Annotated Code of Maryland. In the case of a waiver, the only notice required shall be that provided by the applicant as described in §A of this regulation and in Environment Article, §5-506, Annotated Code of Maryland. Any interested person may file a written request for a public informational hearing. The request shall be filed within 14 calendar days of publication of the notice required under Regulation .03B of this chapter. A request for hearing shall be considered filed when it is received at the office of the Director, Water Management Administration, 2500 Broening Highway, Baltimore, MD 21224. Within 10 calendar days after receipt of a request for a public informational hearing, the Administration shall set the date, time, and place for the hearing and shall mail a hearing notice to those on the interested persons list. Notice need not be published. Contents. The notice of public informational hearing shall include: A description of the project or activity for which the permit is sought; The date, time, and place of the hearing; The statutory authority of the Administration to conduct the hearing; A citation for the procedures under which the hearing shall be conducted; and A statement that the applicant and interested persons shall be given an opportunity at the hearing to offer information for or against the application for a permit. The Director may delegate all or part of the authority to hold a public informational hearing to a presiding official or to a hearing examiner. Hearing Procedures. The public informational hearing shall be conducted under the applicable statutes. The Administrative Procedure Act and COMAR 08.01.04 do not apply to public informational hearings. The applicant, Administration representatives, and interested persons may offer information or comments for or against granting the application. Questions may be asked of, and directed to, the presiding official, but cross-examination may not be conducted. Order of Presentation. The presiding official may conduct the public informational hearing in the following order: Introduction by the Administration; Presentation of proposed project by the applicant; Comments and questions by public officials; Comments and questions by other persons; and Closing of the public informational hearing record. Powers and Duties of the Presiding Official. The presiding official has the authority to: Conduct a full and fair public informational hearing; Avoid unnecessary delay and maintain order; and Regulate the course of the public hearing and the conduct of the participants, including the power to: Accept written comments, documents, and other exhibits; Extend the closing of the record; Continue the hearing; Record the hearing; Request that participants and observers sign an attendance register and provide a mailing address; and Change the location or date of a hearing to accommodate special circumstances or needs of the participants. The presiding official shall maintain an official record of the public informational hearing, consisting of: The permit application and related documents; Pertinent studies, reports, evaluations, or other documents of the Administration; Copies of notices required under Regulations .03B and .05A of this chapter, including certifications of publication; Requests for the public informational hearing; The attendance register; Documents, written statements, and other exhibits submitted at the public informational hearing; and The recording of the public informational hearing. Following the application review and comment period for a Subtitle 5 permit, and after any public informational hearing on the permit application, the Administration shall issue, modify, or deny the permit application. Notice. Written notice of the final permit decision shall be mailed to the applicant and to all individuals on the interested persons list. Notice need not be published. Contents. The notice of permit decision shall include: The final decision of the Administration on the Subtitle 5 permit application, with a brief description of the factual basis for the final decision; A reference to the statutes or regulation under which the action is being taken; The right of a person who has a specific legal right, duty, privilege, or interest different from the general public, which is or may be adversely affected by the final decision, to request a contested case hearing; The time period within which a contested case hearing shall be requested, the action a person is required to take in order to timely request a hearing, and the address where a person may send the request; and The procedure for filing a motion for temporary stay of the issuance of the permit pending a final decision in the contested case. A request for a contested case hearing shall be: Received within 10 business days of the mailing date of the notice of final permit decision; Filed with the Administration or the program which made the determination. Contents. The request for a contested case hearing shall contain the following: The full name and address of the person requesting the hearing and a telephone number at which the requester may be reached during normal business hours; The name, address, and telephone number of any attorney representing the requester, or a statement that the requester intends to proceed without counsel; A detailed description of the grounds for the request, including the specific legal right, duty, privilege, or interest of the requester which may be adversely affected by the permit decision, and which is different from those interests held by the general public; A statement of the specific relief desired as a result of the adjudicatory hearing; and A general outline of the evidence to be presented in support of the desired relief, including the names and addresses of all witnesses to be called by the requester. If a temporary stay is also requested under Regulation .11 of this chapter, a motion for temporary stay shall accompany the request for contested case hearing. The appropriate program director of the Administration shall review a request for a contested case hearing to determine whether the: Requester has a specific legal right, duty, privilege, or interest which is or may be adversely affected by the permit determination, and which is different from that held by the general public; Requester has raised an adjudicable issue or issues which are: Reasonably related to the subject of the permit, and Within the scope of Subtitle 5; Request was timely made. The program director shall determine whether to grant or deny the request for a contested case hearing. If the criteria listed in §A of this regulation are: Met, the program director or a designee may grant the request for a contested case hearing; Not met, and the determination is to deny the request for a contested case hearing, the determination shall be in writing and mailed to the requester by certified mail. Contents of Notification. The notification of the program director's determination to deny a request for a contested case hearing shall contain the following: The specific reasons for the denial; A statement of the right to request a review of the denial under §D of this regulation; and A statement that if review under this regulation is not sought, the denial is the Department's final decision as to the contested case hearing request. Review. A requester who is adversely affected by the determination to deny a request for a contested case hearing may, within 10 calendar days of receipt of the denial, file with the Director written exceptions and a request to present oral argument. After considering the written exceptions, the Director may hear argument and shall issue a written final decision. Appeal. If the Director's written final decision is adverse to a party other than the Administration, the party may obtain judicial review of the decision in accordance with the Administrative Procedure Act and the Maryland Rules of Procedure. A request for contested case hearing may be accompanied by a motion for temporary stay of the issuance of the Subtitle 5 permit pending a final decision in the contested case. Contents. A motion filed pursuant to §A of this regulation shall contain a: Detailed description of how the criteria for granting a temporary stay, as set forth in Environment Article, §5-506, Annotated Code of Maryland, and COMAR 08.01.04.25 have been met; and Statement of points and authorities in support of the motion. The requester has the burden of producing all evidence in support of the motion. Procedure. Within 10 calendar days of the Administration's decision to grant a request for a contested case hearing, the Director or designee shall afford all parties an opportunity to present oral argument in support of, or in opposition to, a motion filed in accordance with §A of this regulation. This may be conducted by telephoned conference call. Within 5 calendar days of oral argument, the Director or designee shall issue a final written decision granting or denying the motion for temporary stay. Conduct. Contested case hearings under this chapter shall be conducted according to the procedures in COMAR 08.01.04. Procedures. In the event of a conflict between this chapter and COMAR 26.01.02, this chapter applies. Environment Article, §§1-404, 5-203, and 5-506; State Government Article, §10-206; Annotated Code of Maryland Effective date: August 17, 1977 (4:17 Md. R. 1296) Regulations .01—.17, Procedure for Adjudicatory Hearings, repealed effective September 17, 1990 (17:18 Md. R. 2200) Regulations .01—.12, Hearing Procedures for Waterway Obstruction, Waterway Construction, and Water Appropriation and Use Permits, adopted effective September 17, 1990 (17:18 Md. R. 2200) Chapter recodified from COMAR 08.05.06 to COMAR 26.01.07, June 1996