Chapter 02. Procedures for Contested Case Hearings Before the Secretary of the Environment

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.

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:

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:

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:

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:

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:

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:

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.

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.

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:

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:

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:

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:

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:

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:

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.

A party shall serve on all other parties a copy of all pleadings and papers filed in the case.

Motions Generally.

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.

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.

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:

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.

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.

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.

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:

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.