Whenever the right to request an adjudicatory hearing is provided by the Regulatory Program, the conduct of any resulting adjudicatory hearing is governed by this chapter, any specific requirements contained in the chapter authorizing an adjudicatory hearing, and the Maryland Administrative Procedure Act, State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland. The Director shall review a request for an adjudicatory hearing and shall consider the following criteria in reaching a decision to grant or deny an adjudicatory hearing: Whether the request was timely made; Whether the request contains all the required information; Whether the request raises issues within the scope of the statutory authority of the Bureau; Whether the issues presented in the request are relevant and material; and Whether the request demonstrates that the requestor has a right, duty, interest, statutory entitlement, or privilege which is or may be adversely affected. If the request for an adjudicatory hearing contains insufficient information for the Director to reach a decision, the Director shall notify the requestor, in writing and by certified mail, of the information that shall be submitted. The Director's notification shall require the requestor to submit the information, in writing, within 10 days of the receipt of the notification by the requestor. The Director shall notify the requestor, in writing and by certified mail, of a decision to grant or deny an adjudicatory hearing. If the Director denies the request for an adjudicatory hearing, the notice required by this regulation shall inform the requestor that for any hearing request filed after December 28, 1989, the requestor has the right to request a review of the denial by filing a motion for reconsideration with the Director of the Water Management Administration within 10 days of receipt of the notice. The notice shall also inform the requestor that, if no motion for reconsideration is filed within 10 days, the denial is the Department's final decision as to the adjudicatory hearing request. If a motion for reconsideration is filed, the motion shall be accompanied by a written statement of the grounds in support of the motion, and if oral argument is requested, a written statement to that effect. Within 10 days of receipt of a motion for reconsideration, the Bureau may file a written response with the Director of the Water Management Administration. After considering the motion and supporting statement and the Bureau's response, if any, the Director of the Water Management Administration or the Director's designee may hear oral argument, and shall issue a written final decision. If the final decision of the Director of the Water Management Administration, or the Director's designee, is adverse to a party other than the Bureau, the party may obtain judicial review of the decision in accordance with the provisions of the Maryland Administrative Procedure Act and the Maryland Rules of Procedure. If the Director grants the request for an adjudicatory hearing, the Director shall forward the request to the Secretary or the Secretary's designee. The Secretary or the Secretary's designee shall act as the hearing officer. The hearing officer shall give notice to all parties of the date, time, and place of the hearing. The applicant or permittee shall be made a party to any adjudicatory hearing involving a permit application or permit under the Regulatory Program. The Bureau shall in all cases be made a party to any adjudicatory hearing under the Regulatory Program. Any person may be granted intervention as a party upon a showing, before the beginning of the hearing, that they would have been entitled to request a hearing in their own right, and that existing parties cannot be expected to adequately represent their interests. Before the date of the adjudicatory hearing, the hearing officer may hold a prehearing conference, for which he shall give notice to all parties of the date, time, and place. At a prehearing conference or within some reasonable time set by the hearing officer, each party shall make available to the other parties the names of experts and other witnesses the party expects to call, together with a brief written summary of their anticipated testimony. At a prehearing conference, or within some reasonable time set by the hearing officer, the following matters shall be considered: The documents within the administrative file shall be identified; Stipulations and admissions of facts and the genuineness of documents and other matters upon which there is agreement shall be identified; Matters of which official notice shall be taken shall be identified; Disputed issues of a purely legal nature shall be identified; When possible, consideration shall be given and decisions made upon objections to the introduction into evidence at the hearing of any written documents, papers, exhibits, testimony, or materials proposed to be introduced at the hearing by a party; A schedule of presentation order for the following shall be established: Submission of written statements; Presentation of oral statements; Presentation of oral direct and cross-examinations; Presentation of oral arguments. The hearing officer shall prepare a written prehearing order reciting the actions taken at the prehearing conference. An adjudicatory hearing shall be conducted generally in the following order, unless modified by the hearing officer during the prehearing conference: Call of the case by the hearing officer; Opening statements by the parties; Presentation of evidence in the following order: Unless otherwise directed by the specific regulation providing a right to a hearing, the party requesting the hearing has the burden of proof on all material issues, has the burden of going forward to present an affirmative case upon the issues, and has the ultimate burden of persuasion; Other parties; Rebuttals in the same order; Closing statements of the parties in the same order of opening statements. The hearing officer shall have the authority and duty to conduct a fair and impartial hearing, to take action to avoid unnecessary delay in the disposition of the proceedings, and to maintain order, including, but not limited to the following: To administer oaths; To issue summonses for witnesses and subpoenas requiring the production of documents; To rule upon offers of proof and receive relevant and material evidence; To consider and rule upon all procedural and other motions appropriate to the proceedings; To examine witnesses; To maintain order, limit unduly repetitious testimony, and limit the time for presentations; To identify and rule upon issues of law provided that, in making the rulings, the hearing officer shall be bound by the: Department's regulations; Constitution; Laws of the United States; and Laws of Maryland; To grant a continuance for good cause shown; To require parties to submit proposed findings of fact and conclusions of law; and To provide an opportunity for any party to file a brief containing legal argument and citations in support of the party's position on issues of law identified in the proceedings. Parties shall have the right to cross-examine a witness who appears at an adjudicatory hearing to the extent that cross-examination is necessary for full and true disclosure of the facts. The provisions of the Administrative Procedure Act shall apply to the adjudicatory hearing. In multiparty proceedings, the hearing officer may limit cross-examination to one party on each side if he is satisfied that the cross-examination by the party will adequately protect the other parties. Other parties may engage in cross-examination relevant to matters not adequately covered by previous cross-examination. Rulings of the hearing officer on the admissibility of evidence, the propriety of cross-examination, and other procedural matters shall be final and shall appear in the record. Evidence may not be excluded on the grounds that it was generated, discovered, or became available after the action which is the subject of the hearing. The hearing officer shall notify all parties by certified mail as soon as the hearing record is compiled and available. Within 15 days from the date of the notification in §A of this regulation, any party may file proposed findings of fact, conclusions of law, and a brief in support thereof with the hearing officer. Copies shall be mailed to all other parties at the same time. Within 60 days from the notification in §A of this regulation, the hearing officer shall prepare a proposed decision with findings of fact and conclusions of law. The proposed decision shall be submitted to the Director of the Water Management Administration and copies shall be mailed to all parties. Within 15 days of receipt of the proposed decision of the hearing officer, any party adversely affected may file written exceptions and request oral argument before the Director of the Water Management Administration, unless the Director of the Water Management Administration has personally heard the evidence at the adjudicatory hearing. If exceptions and a request to present oral argument are filed, the Director of the Water Management Administration shall notify the parties of the date, time, and place for the argument. The oral argument shall be heard within 15 days from receipt of the exceptions and request to present oral argument. The Director of the Water Management Administration shall render a final decision within 30 days of receipt of the proposed decision of the hearing officer, or from the receipt of written exceptions, or date of oral argument, whichever is later. If the final decision is adverse to a party to the hearing other than the Bureau, the party is entitled to judicial review in accordance with State Government Article, §10-222, Annotated Code of Maryland. The time limits in this regulation may be adjusted as required to meet specific statutory deadlines, or to ensure full presentation of all relevant evidence, provided, however, that a decision on a request to review a cessation order issued for a violation which creates an imminent danger to the health or safety of the public, or is causing, or can reasonably be expected to cause, significant, imminent environmental harm to land, air, or water resources, or for failure to abate a violation within the time limits set in the order pursuant to Environment Article, §15-508(f), Annotated Code of Maryland, shall be rendered by the hearing officer within 30 days of receipt of the application for review, unless temporary relief is granted by the hearing officer. Adjudicatory hearings shall be either stenographically reported verbatim or tape recorded, and then may be transcribed. Stenographic notes or tapes, or originals of the transcript, shall be filed with the record along with all exhibits. Any party who desires a copy of a transcript of the hearing may request a copy from the hearing officer and pay the costs. If the transcript is prepared by a private stenographer, the hearing officer may direct interested persons to make arrangements for copies by dealing directly with the reporter. All orders issued by the hearing officer, stenographic notes or tapes, or transcripts of oral hearings or arguments, written statements of position, written direct and rebuttal testimony, and any other data, studies, reports, documentation, information, and other written matter submitted in the adjudicatory hearing, shall be a part of the administrative record of the adjudicatory hearing, and shall be available to the public in the office of the Bureau upon compilation. The Director of the Water Management Administration shall notify the parties to the hearing, in writing and by certified mail, of the final decision. The notice shall include a: Copy of the decision, including findings of fact and conclusions of law in accordance with the Maryland Administrative Procedure Act; and Statement regarding the parties' right of appeal. Any person may file a petition for award of costs and expenses including attorneys' fees reasonably incurred as a result of that person's participation in any adjudicatory hearing under this subtitle. The petition for an award of costs and expenses including attorneys' fees shall be filed with the Secretary within 45 days of receipt of a final decision under Regulation .08 of this chapter. Failure to make a timely filing of a petition may constitute a waiver of the right to this award. The petition shall include the name of the person from whom costs and expenses are sought, and the following shall be submitted in support of the petition: An affidavit setting forth in detail all costs and expenses, including attorneys' fees reasonably incurred for, or in connection with, the person's participation in the proceeding; Receipts or other evidence of these costs and expenses; and If attorneys' fees are claimed, evidence concerning the hours expended on the case, the customary commercial rate of payment for these services in the area, and the experience, reputation, and ability of the individual or individuals performing the service. Any person served with a copy of a petition shall have 30 days from service of the petition within which to file an answer to this petition. Appropriate costs and expenses including attorneys' fees may be awarded as follows: To any person from the permittee, if: The person initiates any administrative proceedings reviewing enforcement actions, upon a finding that a violation of the Act, regulations, or permit has occurred, or that an imminent hazard existed, or to any person who participates in an enforcement proceeding where such a finding is made if the Secretary determines that the person made a substantial contribution to the full and fair determination of the issues, or The person initiates an application for review of alleged discriminatory acts, upon a finding of discriminatory discharge or other acts of discrimination; To any person, other than a permittee or his representative, from the Bureau, if the person initiates or participates in any proceeding under this subtitle, upon a finding that the person made a substantial contribution to a full and fair determination of the issues; To a permittee from the Bureau when the permittee demonstrates that the Bureau issued an order of cessation, a notice of violation, or an order to show cause why a permit should not be suspended or revoked, in bad faith for the purpose of harassing or embarrassing the permittee; To a permittee from any person when the permittee demonstrates that the person initiated a proceeding under this subtitle or participated in such a proceeding in bad faith for the purpose of harassing or embarrassing the permittee; To the Bureau when it demonstrates that any person applied for review under this subtitle or that any party participated in such a proceeding in bad faith and for the purpose of harassing or embarrassing the Government. An award under this chapter may include: All costs and expenses, including attorneys' fees and expert witness fees, reasonably incurred as a result of initiation or participation in a proceeding under this subtitle; All costs and expenses, including attorneys' fees and expert witness fees, reasonably incurred in seeking the award. Any person aggrieved by a decision concerning the award of costs and expenses in an administrative proceeding under this chapter is entitled to judicial review in accordance with State Government Article, §10-222. Annotated Code of Maryland. The Secretary or the Director of the Water Management Administration may delegate all or part of his authority to act pursuant to this chapter. The failure of the Bureau to do any act within the time periods specified in this chapter may not be construed as a waiver or a derogation of any rights, powers, or authority of the Department or of the Bureau. Environment Article, §15-503, Annotated Code of Maryland Effective date: Regulations .01—.04, .05, and .06—.10 were previously codified as COMAR 08.13.09.43A—D, E—J, and K—O, respectively. Recodification occurred in April, 1993. For a history of these regulations before April, 1993, see "Administrative History of COMAR 08.13.09 before April, 1993" which follows COMAR 26.20.01. Chapter recodified from COMAR 08.20.34 to COMAR 26.20.34, June 1996 Regulation .06G amended effective December 27, 1999 (26:26 Md. R. 1961) Regulation .09G amended effective December 27, 1999 (26:26 Md. R. 1961)