10 CFR 205.199 - Evidentiary hearing.
(a)Filing Requirements. At the time a person files a Statement of Objections he may also file a motion requesting an evidentiary hearing be convened. A motion requesting an evidentiary hearing may be filed by any other participant within 30 days after that participant is served with a Statement of Objections.
(b)Contents of Motion for Evidentiary Hearing. A Motion for Evidentiary Hearing shall specify each disputed issue of fact and the bases for the alternative findings the movant asserts. The movant shall also describe the manner in which each disputed issue of fact was raised in any prior administrative proceeding which led to issuance of the Proposed Remedial Order, or why it was not raised. The movant shall with respect to each disputed or alternative finding of fact:
(1) As specifically as possible, identify the witnesses whose testimony is required;
(2) State the reasons why the testimony of the witnesses is necessary; and
(3) State the reasons why the asserted position can be effectively established only through the direct questioning of witnesses at an evidentiary hearing.
(c)Response to Motion for Evidentiary Hearing. Within 20 days after service of any Motion for Evidentiary Hearing, the Office that issued the Proposed Remedial Order shall, and any other participant may file a Response with the Office of Hearings and Appeals. The Response shall specify:
(1) Each particular factual representation which is accepted as correct for purposes of the proceeding;
(2) Each particular factual representation which is denied;
(3) Each particular factual representation which the participant is not in a position to accept or deny;
(4) Each particular factual representation which is not accepted and the participant wishes proven by the submission of evidence;
(5) Each particular factual representation which the participant is prepared to dispute through the testimony of witnesses or the submission of verified documents; and
(6) Each particular factual representation which the participant asserts should be dismissed as immaterial or irrelevant.
(d)Prehearing Conferences. After all submissions with respect to a Motion for Evidentiary Hearing are filed, the Office of Hearings and Appeals may conduct conferences or hearings to resolve differences of view among the participants.
(e)Decision on Motion for Evidentiary Hearing. After considering all relevant information received in connection with the Motion, the Office of Hearings and Appeals shall enter an Order. In the Order the Office of Hearings and Appeals shall direct that an evidentiary hearing be convened if it concludes that a genuine dispute exists as to relevant and material issues of fact and an evidentiary hearing would substantially assist it in making findings of fact in an effective manner. If the Motion for Evidentiary Hearing is granted in whole or in part, the Order shall specify the parties to the hearing, any limitations on the participation of a party, and the issues of fact set forth for the evidentiary hearing. The Order may also require parties that have adopted similar positions to consolidate their presentations and to appear at the evidentiary hearing through a common representative. If the Motion is denied, the Order may allow the movant to file affidavits and other documents in support of his asserted findings of fact.
(f)Review of Decision. The Order of the Office of Hearings and Appeals with respect to a Motion for Evidentiary Hearing shall be subject to further administrative review or appeal only upon issuance of the determination referred to in § 205.199B.
(g)Conduct of Evidentiary Hearing. All evidentiary hearings convened pursuant to this section shall be conducted by the Director of the Office of Hearings and Appeals or his designee. At any evidentiary hearing the parties shall have the opportunity to present material evidence which directly relates to a particular issue of fact set forth for hearing. The presiding officer shall afford the parties an opportunity to cross examine all witnesses. The presiding officer may administer oaths and affirmations, rule on objections to the presentation of evidence, receive relevant material, rule on any motion to conform the Proposed Remedial Order to the evidence presented, rule on motions for continuance, dispose of procedural requests, determine the format of the hearing, modify any order granting a Motion for Evidentiary Hearing, direct that written motions or briefs be provided with respect to issues raised during the course of the hearing, issue subpoenas, and otherwise regulate the conduct of the hearing. The presiding officer may take reasonable measures to exclude duplicative material from the hearing, and may place appropriate limitations on the number of witnesses that may be called by a party. The presiding officer may also require that evidence be submitted through affidavits or other documents if the direct testimony of witnesses will unduly delay the orderly progress of the hearing and would not contribute to resolving the issues involved in the hearing. The provisions of § 205.8 which relate to subpoenas and witness fees shall apply to any evidentiary hearing, except that subsection § 205.8(h) (2), (3), and (4) shall not apply.