NPDES ADMINISTRATIVE
HEARING MANUAL
by
Barry S. Shanoff
Silver Spring, Maryland
.Perm ts Division
Office of Water Enforcement and Permits
U.S.. Environmental Protection Agency
Washington, D.C.

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CONTENTS
I. THE FEDERAL ADMINISTRATIVE PROCESS
A. Background ••••••••••••••••••••••••••••••••,•, I—i
B. Adjudications
1. Generally 1—2
2. Constitutional Due Process .... ... ........ 1—3
3. ApplicabllityoftheApA 1—3
C. Hearings
1 • APA Req u i r eme n t s . . . . . . . . . . . . . . . . . . . . . . . . . I — 4
2. Fair Hearing •••s••ss••..s................ 1—4
3. Presidingofficers.......• .. 1—5
D. Evidence in Administrative Proceedings
1. Admissibility •es•s•s•s..s................ 1—6
2. Discovery •..•••••••••••.................. 1—7
3. Burden of Proof 1—9
4. Official Notice 1—9
E. Administrative Determinations
1. Generally ••s•••••••s•s.s................. 1—10
2. Decisions of the Presiding Officer ....... 1—10
3. Proposed Findings and Conclusions •....... 1—10
4. Agency Review of Initial Decisions •...... I—il
5. Statements of Findings and Conclusions ... I—li
F. Judicial Review
1. Reviewab].e Agency Action . . . .•.. .• .. ...... I—li
2. Methods of Judicial Review ............... 1—12
3. PrimaryJurisdiction......... 1—12
4. ExhaustionofRemedies.... 1—13
5. Standing 1—13
6. Review of Findings of Fact ............... 1—13
7 • The Record ••••••••••••............• • • • 114
II. PRACTICES, PROCEDURES AND TECHNIQUES FOR FORMAL
HEARINGS
A. Preliminary Matters
1 . Se rv ice of Papers • . . . . • . . . • . . . . . . . • . . . . . . I I —1
2. Document Filing and Record Management
System 11—1
3. ExParteCommunications 11—2
4 . Tme L im i tat ions . . • • . . . . . . . . . . . . . . . . . . • . . I I — 3
5. ConductofCounsel..• • 11—3
6. Team Approach 11—4
B. Evidentiary Hearings
1. Trial Planning 114
2. PrehearingConference..... 11—16
3. Discovery ••••s•••••s••................... 11—21
4. 11—29
5. Testimony •••••••••••••••••••••,•••••••• 11—34
6. Objections and Offers of Proof ........ ... 11—52
7. ManagingExhibits.. .. ... .. . . .• ., 11—61
8. Drafting Proposed Findings of Fact, Con-
clusions of Law and Supporting Brief ... 11—75

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TABLE OF CONTENTS (cont’d)
Page —2—
C. Non—Adversary Panel Hearings
1. Background 11—77
2. Techniques for Expediting Panel
Hearings 11—78
Appendix: Illustrations of Testimony
III. POLICIES AND RECURRING LEGAL ISSUES
Iv. FORMS
REFERENCE MATERIALS
• Federal Rules of Evidence
• Bibliography
INDEX

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II
PRACTICES, PROCEDURES AND TECHNIQUES
FOR FORMAL HEARINGS
This chapter presents appropriate practices and
techniques for preparing and presenting the Agency’s case in
formal hearings under 40 C.F.R. Part 124 on challenges to
NPDES permit decisions under Section 402 of the Clean Water
Act.
A. Preliminary Matters
1. Service of Papers
All papers, which invite or require a response from
another party within a prescribed time period or which must be
filed or served within a prescribed period, should be trans-
mitted either by personal service or by registered or certified
mail, return receipt requested.
Where material is personally served, attach the ori-
ginal of the certificate of service to the official file copy
of the papers served. And for material sent by certified or
registered mail, tape the signed return receipt (“green card”)
to the backside of the official file copy (last page for multi—
page material) of the papers served.
2. Document Filing and Record Management System
a. Errors and Omissions in Submitted Material —
Whenever possible, but consistent with the re-
quirements of S124.73(c)(4), the Regional officials should
accommodate telephone requests to alter or amend a document by
interlineation, provided that the caller agrees to confirm
such a request in writing and to notify all interested persons
and, after his assignment to the case, the administrative law
judge (AU).
b. Docket and Indexing System —
The Regional Hearing Clerk should design and
implement a workable system for receiving, organizing, storing
and retrieving papers and documents that are part of the admin-
istrative record and the hearing record. At a minimum, this
system should include date— and time—stamping of papers and
documents immediately upon receipt, chronological filing, and
a summary sheet, entry log or other index showing at—a—glance
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the nature of all papers or documents and their respective
filing times.
c. Examination of the Record —
Except as provided in S122.19, any person is
allowed to inspect and copy, during regular Agency business
hours, any document, paper, ruling, order, decision, trans-
cript, information or written material of any kind filed or
submitted in a formal proceeding as soon as such matter is
received and processed by the Regional Hearing Clerk. The
Regional Hearing Clerk may set reasonable restrictions on the
availability of all or any part of the administrative record.
The charges for duplicating documents, and the circumstances,
if any, under which such charges will be reduced or waived
altogether, should be stated in writing arid posted in the
Office of the Regional Hearing Clerk.
3. Ex Parte Communications
After public notice of the grant of an evidentiary
hearing under S124.77 or of a panel hearing under §124.116,
Agency ex parte rules forbid written or oral communications
relating to the merits of the proceeding between a member of
the decisional body and any interested person outside the
Agency or between a member of the decisional body and a member
of the Agency trial staff. Such communications are prohibited
ex parte communications if (a) they were not originally filed
or stated in the administrative record or in the hearing, and
(b) all parties did riot receive prior written notice of such
proposed communication or they were not given the opportunity
to be present at and participate in the discussion.
The following diagram illustrates the relationships
involved in an ex parte discussion:
I Decisional I (Agency employee(s)
I Body I reasonably expected
1 to be involved in
the decision proceBs)
[ Agency Trial Staff 1 Elnterested Persons
I Outside the Agency
(Agency employees designated
by the Agency as available (Permit applicant,
to investigate, litigate, any party to the
and present the evidence and hearing, etc.)
arguments of the Agency in
the hearings)
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• Where an opponent makes such an ex parte cominunica—
tion, Agency lawyers should consider filing a motion with the
AU or the Administrator (depending upon the stage of the
proceedings) asking that the party violating the ex parte
rules show cause why its claim or interest in the proceeding
should not be dismissed, denied, disregarded or otherwise
adversely affected. [ See S124.78(c)]
4. Time Limitatione
Although there are formal ways for a party to extend
deadlines for filing papers and documents, decision—makers
prefer it when the lawyers work out these matters without
resort to written motions. Lawyers should show professional
courtesy to even the most antagonistic opponent. Remember that
everyone occasionally needs an extension of a filing deadline.
While it may be inexcusable simply to neglect a deadline, there
is nothing wrong with telling an opponent candidly that for
good reasons you cannot meet a deadline.
Even when all parties agree verbally on an appro-
priate extension period, be sure that someone notifies the
AU, Regional Administrator or Administrator, as the case may
be, and files a written st ipulation. (An unwritten rule
makes the party who wants the extension responsible for the
phone calls and the necessary paperwork.)
5. Conduct of CounBel
It is the lawyer’s duty to make every procedural
move and every arguable point that will aid his client’s cause.
But this does not justify making frivolous, specious or absurd
arguments. A lawyer has a duty of candor and fairness. He
must not knowingly misstate either law or fact, misquote the
contents of a paper, of testimony, or of a decision, nor assert
facts not proved.
If tardiness or absence is unavoidable, the lawyer
must make every effort to give notice to the AU and to oppos-
ing counsel. Dilatory tactics are wrong when solely intended
to hinder the proper presentation and development of a just
cause.
When dealing with an opposing party who has a law-
yer, speak only with the lawyer. During a proceeding a lawyer
should not communicate or cause another to communicate on the
subject of the proceeding with a party he knows to be repre-
sented by counsel unless he has the prior consent of the lawyer
representing the other party or is otherwise authorized to do
so. A lawyer should communicate with the AU regarding the
merits of a case only (i) during official proceedings, (ii)
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in writing, so long as a copy of the writing is sent to all
other parties, (iii) orally, when notice is given to other
parties, or (iv) as might be authorized by law. Out—of—court
communications are generally improper whenever undue advantage
for one party would result or appear to result. Thus, a lawyer
should not give a memorandum to the judge without giving a
copy to counsel for the other parties. Whenever communications
are proper (as those with notice or where a copy is provided),
the lawyer should be fair and accurate in his statements.
6. Team Appi’oach
Successful administrative litigation requires a good
working relationship among all professionals whose skills are
needed to prepare and defend Agency actions. Key consultants,
technical and support staff and lawyers must cooperate closely
at all stages of the permit issuance process. This coopera-
tion is especially important where Agency actions will be
controversial or likely to result in a challenge to the permit.
Individual roles and responsibilities should be worked out
within each Region under the guidance of the Division Directors
of the affected programs and personnel. In practice, lawyers
are usually designated as case managers, i.e. , persons through
whom all information about the proceedings flows. But a case
manager can be any assertive, well—organized member of the
Agency trial staff. When a lawyer serves as case manager, a
qualified technical staff member (whose field of expertise
will vary with the subject matter involved) should direct and
coordinate work done by non—lawyer members of the trial staff.
The technical professionals who review applications
and prepare draft permits often find that preparing a fact
sheet requires contributions from all members of the team,
thus assuring that the various limitations, requirements and
other conditions in the permit are the result of a conscien-
tious decision—making process.
B. Evidentiary Hearings
1. T ’ial Plann ing
a. Introduction —
(1) Generally:
A trial can be said to be “finished” even
before it begins. Before the lawyer walks into a hearing
room, he has spent countless hours preparing every detail
of his case. He has organized and arranged the presentation
of facts. He has determined the order of witnesses, of
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questions to be asked, and of every document to be offered
in evidence. He has pre—determined the phrasing of key
questions. Having anticipated objections to his evidence,
he has answers ready; having foreseen his opponent’s evi-
dence, his own objections are ready. (Ideally, one should
know his opponent’s case as well as or better than the
opponent himself knows it. Sometimes a lawyer finishes a
trial thinking he could have presented a better case for
the opposing side than the job done by opposing counsel.)
(2) Preparation Agenda:
The lawyer must plan his preparation by
listing actions in the order they must be accomplished
and by setting deadlines for accomplishing them. Finished
jobs are checked off the list; new things to do are added.
A preparation agenda is an essential trial planning
discipline that helps keep the lawyer from neglecting
small but important chores. An up—to—date agenda with
tasks and responsibilities checked off gives an instant
assessment of the status of preparation and allows other
persons both to help with the work and to pick up and
carry on the work if responsibilities shift.
(3) Using Para—professionals:
Whenever possible, use paralegals and other
para—professionals, as well as college and law school
students who work as interns. They can be especially
valuable in organizing and maintaining files, locating
and organizing documents, helping expert witnesses find
information and materials, searching out biographical
material on and writings of an opponent’s expert witnesses,
summarizing the contents of documents, assembling proof,
and assisting at hearings.
(4) Analysis of Issues:
Begin evaluating the issues by examining the
evidentiary hearing request and the Regional Administrator’s
grant of the request. (S124.74) This analysis should be
prepared early in the case. Update the analysis as new
issues develop and old issues are resolved.
As a format for the analysis, divide a sheet
of paper into three columns. In the first column list the
issues of fact and the related contested permit conditions
identified by the Regional Administrator. [ See §124.74(d)]
Record the Agency’s response to each such issue in the
second column side—by—side with the listed contested permit
condition. Note source material ( e.g. , pre—hearing order,
answer to interrogatory, stipulated fact, document reference)
in the third column. This kind of analysis forces the
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lawyer to transform vague hearing requests and hearing
grants into precise issues. It also guides discovery,
investigation and further preparation of your own case,
while identifying the issues that need to be proved and
those that do not. It is the basis for the trial notebook.
b. Trial Notebook —
(1) Generally:
The trial notebook can simplify the lawyer’s
work during the hearing. If properly prepared with a good
index system, it allows the lawyer to quickly find copies of
any papers, documents, extracts from depositions, memoranda
on the introduction of evidence, or any other reference item.
Regardless of style or manner of organization,
the trial notebook must be usefully indexed and arranged.
The complexity of each case will determine how much effort
is needed. Every case requires documentation, investigation
and preparation. Before any trial, however small, some ver-
sion of the trial outline should be attempted.
(2) Format and Organization:
The complete trial notebook represents the
final preparation for the hearing. It should provide a
clear, reliable diagram for the trial of the case and safe-
guard against neglecting areas of evidence or a portion of
the case.
The best kind of trial notebook is a three—
ring, loose—leaf binder sized for 8—1/2 x 11 inch paper.
Use separators or dividers tabbed with the categories
needed for preparation and trial of the case. Ordinary
manila folders are useful for holding materials generated
before trial such as correspondence, documents, memoranda
and exhibits. These folders can be stored in large expand-
able closed—end folders. Make notes or store material in
the notebook or in the folders, whichever is more convenient.
Whatever the system, be sure to make notations immediately
upon finding useful information and be prepared to update
and revise all the material constantly. The material is
ultimately transformed into the final notebook and quick—
access reference files used at the hearing.
A suggested trial notebook outline should
contain the following:
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Tab I. Administrative Record
Tab A. Permit Application
Tab B. Draft Permit
Tab C. Statement of Basis/Fact Sheet
Tab D. Abstract of Documents Cited in Statement
of Basis/Fact Sheet
Tab E. Abstract of Comments Received During
Public Comment Period
Tab F. Final Permit
Tab G. Response to Comments
Tab H. Abstract of Other Documents in Permit
Supporting File
Tab II. Pleadings and Discovery
Tab A. Abstract of Evidentiary Hearing Request
and Grant of Evidentiary Hearing
Tab B. Permittee’s Admissions and Answers to EPA
Interrogatories
Tab C. EPA Admissions and Answers to Permittee’s
Interrogatories
Tab D. Deposition Digests (Permittee’s Witnesses)
with Index
Tab E. Deposition Digests (EPA Witnesses) with
Index
Tab III. Facts and Law
Tab A. Witness List
Tab B. Chronology and/or Memorandum of Facts
Tab C. Abstracts of Exhibits and Other Documents
Tab D. Legal Memoranda
Tab IV. Trial
Tab A. Trial Plans or Outline
Tab B. Case in Chief (Outlines of Witnesses’
written direct testimony and exhibits)
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Tab C. Perinittee’s Case (Outlines of written
direct testimony; outlines of cross—
examination from discovery material,
exhibits and other sources)
Tab D. EPA Rebuttal (Outlines of testimony)
Tab E. Permittee Rebuttal (Outlines of testimony)
Tab F. Exhibit List (Columns headed “EPA” or’
“Permittee”, “Number”, “Description”,
“Offered”, “Received”, “Refused”, “Re-
served”)
Tab V. Master Index
(3) Indexing Discovery Material:
Discovery material is routinely used as part
of your case—in—chief or in cross—examination. Make a note
of what you intend to use and when you intend to use it.
Where the material is extensive, the reference should be
noted in a special section of the trial notebook. Prepare
a key word or topic index to depositions and interrogatories,
listing question—and—answer references and the pages where
they occur. File the papers themselves separately.
(4) Notes on Law and Evidence:
Be prepared on the general principles of
law and evidence that apply to the presentation of your
case and on points you anticipate will arise at the hear-
ing, if they are not resolved at a prehearing conference.
Index your general research for ready
access to specific memoranda, notes or case abstracts.
Prepare separate briefs on specific points of law and
evidence and keep them in the storage folder, but list
the briefs (by subject) in the trial notebook.
(5) Witness Lists:
Devote a section of the trial book to notes
about witnesses: things you have learned or surmised about
a witness and his testimony.
Other parts of the file also will contain
material about witnesses: witness statements, memoranda
about a witness and his testimony, answers to interroga—
tories. These materials do not constitute the testimony
of the witness, but rather are the raw materials for that
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testimony. This raw material must be worked into final
form for use at. trial.
The lawyer must make a number of important
decisions about the presentation of the case at trial:
(a) Which witnesses to call.
(b) The order in which to call them.
(c) The organization of the written testimony for
each witness so as to present it in a clear and
effective way.
(d) The exhibits to be introduced through particular
witnesses.
The witness list should have the names of
the persons in the order they will be called. Note next
to each name the topic on which the witness will testify.
Do not forget to list probable opposing witnesses. Think-
ing about the case from the opponent’s perspective is an
important part of case preparation.
(6) Outline of Proof:
The outline of proof (trial plan) may be the
most important section of the trial notebook. To prepare
the outline you must analyze each issue in the case in
terms of the component facts to prove that issue, and in
turn analyze each component fact in terms of the proof
(evidence) and rules of evidence necessary to establish
that fact. The outline thus highlights:
(a) Each issue in the case.
(b) Facts necessary to prevail on each issue.
(c) Each item of proof (evidence) available to
prove each fact, and any pertinent rule of
evidence.
The outline forces you to marshal the evidence and to as-
sess the strengths, weaknesses and gaps in the proof. It
helps you decide on the order of proof and prepare the wit-
ness sheets and trial agenda. It should be structured as
follows:
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ISSUE NO.
(Statement of Issue]
LAW: [ Statement of law; case and/or statute and/or
regulation reference(s)]
FACT WITNESS/FOUNDATION EXHIBIT(S )
(7) Exhibit Lists and Exhibit File:
The documents and exhibits must be organized
and indexed before the hearing. Indexing can be done in a
variety of ways so long as it (i) identifies the document
with an abstract of its contents, (ii) codes the document,
if a coding system is used, (iii) tells where to find the
document, and (iv) explains how the document will be used
at trial.
The easiest way to index documents is by the
name of the item. Sometimes it helps to cross—index the
document by keying it to the witness sheets. When using
documents in litigation:
(a) Do not mark or mutilate originals.
(b) Work with photocopies of important documents.
(c) Do not file original documents in any submission.
Stipulate for the substitution of copies.
Cd) Safeguard important documents.
(e) Have your opponent produce original documents,
not copies.
(f) Indicate the source of each document. An easy
way is to write the source on a slip of paper
and attach it to the document itself by paper
clip, not by stapling.
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c. Ensuring Effective Expert Assistance —
(1) Generally:
The importance of the expert in NPDES evi—
dentiary hearings cannot be overemphasized. The expert
can serve not only as a witness, but also as a valuable
advisor to all members of the trial team in preparing the
case and responding to opposing experts. The use of the
expert as a participant throughout the litigation process,
rather than just at the hearing stage, means that case
managers must be able to make quick selections of experts
capable of filling a variety of roles.
(2) Preparing the List of Candidates:
Several sources can be consulted in compiling
a list of candidate experts. Check first with a contracts
officer; the Agency already may be doing business with a
consulting firm or an individual expert that has the neces-
sary background and experience. Otherwise, the chairman of
the pertinent department of a nearby college or university
can furnish the names of alumni or faculty members with the
requisite skills. Frequently, the best—informed advice will
come from other lawyers who have handled similar cases. Not
only can they supply the names of experts, but they also can
tell you how the experts performed on the witness stand and
how thorough and cooperative they are in trial preparation.
Sometimes even people in everyday occupations may possess
the kind of specialized knowledge needed to interpret the
facts. For example, professional fishermen often can be
persuasive witnesses as to the habits of fish populations
and the effects of man—made changes in the aquatic
environment.
(3) Making a Choice:
In making a final choice, keep in mind
these criteria:
(a) Ability of the expert to communicate —
Can he translate complicated technical material
into relatively clear, comprehensible terms?
(b) Vulnerability to cross—examination —
Find out whether the expert has written books
or articles with a viewpoint different from the position
he would be taking in the hearing. If he has published a
contrary view and there is no legitimate way to distinguish
the current controversy from those described in his books
or articles, or if he cannot explain his changing attitude,
eliminate him from consideration.
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Think about whether the expert might be someone
who changes opinions to agree with whoever is questioning
him at the time. An expert who can support the Agency’s
case in his direct testimony, but who ends up agreeing
with opposing counsel on cross—examination is worse than
no expert at all. Therefore, consultation with the expert
must include a friendly but thorough cross—examination
before a commitment is made to retain him. In addition,
an expert should be sought whose knowledge is up to date
and whose preparation for testimony will be thorough.
Cc) Experience as a witness —
The seasoned expert witness has learned the art
of expressing himself understandably and protecting himself
on cross—examination. He can help an inexperienced attorney
in planning the presentation of the expert’s testimony.
For one thing, many veteran expert witnesses have printed
forms of questions designed to qualify themselves on the
stand as an expert; this is valuable if the expert’s field
of specialization is esoteric, where information concerning
the levels of qualification may be hard to come by.
The experienced expert witness can help determine
the most effective way to present his testimony. He may
have certain kinds of exhibits or formats that have worked
well in past cases and might be adaptable to use in the
upcoming hearing. If his testimony will be presented by
using a hypothetical question, the witness may assist in
drafting the question so that it will be detailed enough
to cover the necessary items of proof, but not so intricate
as to create a technical fog.
Beware of any expert who is so impressed by his
own past accomplishments that he does not feel the need for
much preparation in new cases. He may reject suggestions
from a young lawyer on the most effective form his testi-
mony can take. If you find yourself working with this
type of expert, muster support for finding another expert.
(4) In—house Experts:
The use of in—house experts is highly desir-
able. Agency employees with the requisite expertise are
already on the payroll, know EPA policies and procedures,
its filing system and other facts that normally will enable
them to proceed with their work more rapidly than a stranger
called in from the outside. Equally important, the in—house
experts often know and are known by the Agency permit writers
and are able to help the lawyer find other knowledgeable
persons both inside and outside the Agency, and then develop
the facts and relevant expert opinions.
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Whenever one or more of the persons selected
as in—house experts have been involved in developing the
permit or in other enforcement actions against the perinittee,
it may be wise to “shop” in—house for a “second opinion.”
Look for a person whose objectivity and judgment may be
less affected by a personal and professional stake in the
outcome.
Some supervisors and managers are reluctant
to release an employee from his normal duties so that he
may assist (part—time or full—time) a lawyer preparing for
a hearing. They tend to regard these additional responsi-
bilities as an interference with the branch’s or division’s
work. Whenever the re—assignment of an Agency employee for
work as an in—house expert is viewed as a necessary evil,
then the most expendable employee (who happens to know
something about the subject) tends to become the designated
in—house expert. If the stakes in the controversy are not
high and the expert areas relatively few and not particularly
complex, then it may be acceptable to select an expert on
that basis.
Where the stakes are high and the case is
complex, and where the nature of the case indicates that
counsel may need relatively frequent, if not constant, ex-
pert assistance prior to and at the trial, a qualified in—
house expert should be selected to fulfill that function.
He will be able to perform that function effectively if
he is in the mainstream of the pre—hearing preparation and
discovery. In fact, if the in—house expert has a background
broad enough to give him at least a working knowledge in the
various expert areas involved in the hearing, and if the
lawyer has given him a basic understanding of the legal
issues, he can serve as liaison or coordinator among the
various trial experts and between those experts and the
lawyer.
(5) Using Experts in Prehearing Preparation:
(a) Generally —
The potential uses of an expert in prehearing
matters are as numerous and varied as the issues that
require expert assistance. While there is no all—purpose
checklist for using the expert in preparing for a hearing,
there are a number of recurring beneficial uses and poten-
tial problems that can be identified.
(b) Mutual aid —
To understand the specific technical points
involved in a case, it usually is necessary to have some
knowledge of the general area or areas out of which the
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specific points arise. So where a case involves only
one component of a machine or one portion of a treatment
process, a proper handling of the case requires a general
understanding of how the machine or process works. The
expert’s first job is to give the lawyer such working
knowledge; since some lawyers find it hard to absorb com-
plex, technical data it is often helpful for the expert
to furnish or recommend reading materials for the lawyer
to study.
While the expert acquaints the lawyer with the
technical areas of the case, the lawyer, in turn, must
brief the expert on the facts of the case and the legal
theories involved. To assist the lawyer properly, the
expert has to know what the case is about and where he
fits into it.
(c) Preparation for conferences —
The expert may be able to help the lawyer
prepare for meetings with Agency personnel, other outside
consultants, and officials of the affected State or local
area. Sometimes the expert may be able to identify certain
documents or parts of documents that should be reviewed
with the help of particular persons. As the scope and
complexity of technical areas increase, it may be a good
idea to have the expert attend meetings and interviews
with potential witnesses.
(d) Document review and analysis —
Working alone or together with the Agency’s
professional staff, the expert can help review documents,
technical reports or other papers. This is an especially
good idea where a sizeable number of technical documents
and detailed reports are involved. To the extent the
expert must handle this chore, he needs a solid under-
standing of the case as a whole, not merely of the area
in which he is involved.
One way to approach the task is to ask the
expert to proceed on the basis of categories, e.g. , to
identify:
(i) key documents,
(ii) documents of lesser relevance,
(iii) documents of doubtful relevance, and
(iv) documents that clearly are not relevant.
The lawyer should review items in the first three categories
with help from the expert. The lawyer should make decisions
on doubtfully relevant documents after reviewing these
documents one—by—one with the expert. Ruling out documents
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in the fourth category usually can be left to the competent
expert.
(e) Depositions and interrogatories —
To the extent that the AU has authorized the
parties to use discovery devices, the expert also can
suggest interrogatories and evaluate the answers or, when
interrogatories are received, in suggesting what informa-
tion should be furnished in the answers. Similarly, the
expert should render advice about the points to be devel-
oped if and when the lawyer deposes the opposing party’s
trial expert and technical witnesses. One well—suited task
for the expert is collecting the writings and the testimony
of the expert or experts that the opposing party proposes
to call. If this material is either technically complex
or voluminous, the expert also can be asked to analyze and
explain the technical material and to search the voluminous
material for helpful items. Depending upon the scope and
complexity of the case and other factors, the lawyer should
consider having the expert attend depositions to render
on—the—scene advice.
(f) Opponent’s expert —
It is often possible to obtain testimony helpful
to your case from an opponent’s expert during prehearing
discovery. However, this tactic requires thorough prepara-
tion and special familiarity with the material of the expert
you are examining. Your first case in a given subject area
will involve a substantial effort that may produce only
small results. With each successive case of the same type,
and with the assistance of your expert, you will expand the
scope of your knowledge and sophistication.
In depositions, where you are in control and
know in advance the points you want to explore or establish,
good understanding of the technical points involved and the
presence of our own expert sometimes will allow you to ad-
vance the Agency’s case through the mouth of your opponent’s
expert.
(g) Coordinating expert —
In large, complex cases involving a variety of
expert disciplines, an expert often can help in establish-
ing and coordinating a team of experts. To serve in this
role, the expert should be experienced and have a background
of sufficient scope to permit him to move back and forth
among the various disciplines, at least on an informal,
working basis.
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(h) Monitoring the expert —
To be of any real value, your expert must be
thorough in the areas entrusted to him, In many instances
this means he must review and analyze from his point of
view transcripts, an opponent’s written direct testimony,
and other material you furnish him. Sometimes the most
effective division of labor between lawyer and expert
makes the expert responsible for reviewing technical
documents running into hundreds or even thousands, of
pages.
Sometimes the work is tedious; most of it is
complex. For that reason, among others, problems can
develop: the expert can be heading in the wrong direction
or not doing enough of the right thing. When a untried
expert is being used, it pays to monitor his progress and
to ascertain, by periodic conferences, whether he is
doing the job correctly and paying enough attention to
detail.
2. Pi’ehearing Confe sence
a. Generally —
Effective litigation strategy includes under-
standing that significant decisions in a case often are made
before the hearing actually begins. Though practices vary,
most ALJ5 use prehearing conferences to make important deci-
sions affecting the course of the hearing. Discussion at a
prehearing conference may concern such matters as clarifying
the issues, limiting the number of expert witnesses, stipulat-
ing facts and the genuineness of documents, and filing written
testimony and documentary evidence. ESl24.83(c)] Proper use
of formal prehearing procedures can increase the speed and
orderliness of the hearing by eliminating unnecessary disputes
and surprises through agreements and decisions made before
the hearing starts.
These agreements and decisions are often embodied
in a prehearing order. [ S124.83(e)] Since this order governs
the subsequent course of the hearing and usually is difficult
to change after it is issued, the Agency lawyer should be well—
versed in the strategic decisions he will have to make to get
a favorable order, or at least one not detrimental to his case.
b. Preparation —
To accurately assess the effect of prehearing
stipulations, agreements or AU rulings, a lawyer usually must
be as nearly prepared for the prehearing conference as for the
hearing itself. Ordinarily, discovery should be as far along
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as possible. But under Subpart E no discovery may take place
unlessand until ordered by the judge. [ S124.83] Such an
order would not likely come until the time of the prehearing
conference itself, if ever.
The lawyer who will try the case must himself
attend the prehearing conference. In fact, most judges insist
on it. A lawyer who has not undergone the intense preparation
necessary for the trial of the case may bargain away crucial
points unknowingly or, by failing to agree to the obvious, may
increase the time and expense of the hearing. Besides knowing
the case, counsel should have authority to make agreements.
If a lawyer is able to maneuver his opponent into a favorable
stipulation, but then cannot consummate the agreement without
someone else’s approval, the lawyer might find (when he finally
gets the authority) that the advantageous moment has passed
and agreement is no longer possible.
Failing to prepare for a prehearing conference
can lead to a prehearing order that severely jeopardizes the
unprepared lawyer’s case. For example, limiting witnesses
to those listed in a prehearing order may rule out adding
witnesses a lawyer later discovers when he finally begins to
put his case together. Many cases end up in this kind of
strait jacket simply because the lawyer did not know enough
about his own case.
Perhaps the greatest offense is not to appear at
the conference. When failure to appear is just another event
in a series of dilatory tactics by a lawyer, the AU probably
can impose sanctions against the party that lawyer represents.
[ Compare 40 C.F.R. §S124.83(a) and l24.85(b)(6) and (13) with
40 C.F.R. §22.17(a)] Lawyers should take advantage of the
shortcomings of opposing counsel who fail to raise crucial
points at the prehearing conference or who fail to appear at
the conference. If an opponent cannot back up an assertion,
the conference is an appropriate time to request removal of
that contention from the case.
Only by knowing what must be proved and the plan
for doing so, and only by studying the probable techniques of
an opponent, can an attorney take full advantage of the oppor-
tunities offered by prehearing procedures. Sometimes the judge
may be willing to include in a prehearing order final or ten-
tative rulings affecting the manner of proof. [ S124.83(e)]
A lawyer who wants to use an arguably controversial technique
of proof can have that method legitimized at the conference.
Another important topic for the prehearing con-
ference is the date of the hearing. Securing a suitable trial
date can be accomplished only if opposing counsel come to the
prehearing conference as well—informed as possible about the
dates their respective witnesses will be available and written
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direct testimony and related documents, studies and other ex—
hibits (in preparation) will be completed. Remember that the
AU usually has his own problems: his docket may be crowded
and he may be committed to disposing of a certain number of
pending cases each calendar quarter.
Lawyers for all parties should meet, or at least
talk, before the conference to reach whatever agreement is
possible on items that will be discussed at the conference
and to exchange documents (except perhaps for documents that
will be used for impeachment purposes) that will be offered in
evidence. Whenever possible, the EPA lawyer should take the
initiative in preparing a proposed prehearing conference agenda
and submitting it to the other parties. Setting the agenda
may provide an edge in controlling the discussion at the con-
ference, especially when the judge has a busy docket or where
he is unfamiliar with NPDES issues. Plan on sending the final
draft agenda to the judge in time for him to review it before
the conference. The agenda should contain:
(1) The date of the prehearing conference.
(2) Appearances of counsel, their addresses, etc.
(3) Questions raised by pending motions, including
the need for discovery. If discovery is contem-
plated, propose a schedule for completion.
(4) Summary of ultimate facts claimed by each of the
parties.
(5) Stipulations of fact; matters subject to offi-
cial notice. -
(6) Contested issues of fact.
(7) Contested issues of law.
(8) Proposed schedule for submission of written
direct testimony and supporting documentary
evidence; proposed schedule for submission of
rebuttal testimony.
(9) Listing and brief description of exhibits
(except documents intended for impeachment
only) to be offered in evidence by each party
and whether such exhibits have been examined
by all counsel; stipulations of authenticity
and, if appropriate, of admissibility of
exhibits or objections to authenticity.
(10) Proposed date for beginning the hearing.
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c. Knowing the Judge —
Counsel should learn about the assigned judge
and his attitudes toward prehearing conferences. Different
judges look at prehearing conferences differently: some will
push hard for settlements; others will dig into the case and
work with the lawyers to narrow issues; still others simply
will act as a moderator, expecting the lawyers to work out
the details; and a few will attempt to keep things flexible.
d. When to Stipulate —
One of the most difficult decisions in preparing
for a hearing is deciding which facts and procedures should be
part of a prehearing agreement and which should not. Generally,
the AU cannot force parties to stipulate as to any particular
facts. In deciding whether to stipulate to facts essential to
your case, or to your opponent’s case, an important considera-
tion is the extent to which, if at all, (1) formal proof on the
matter would be more persuasive or (2) cross—examination of
witnesses would be materially beneficial to your case. Other
considerations: how substantial such proof would be and the
expense and availability of such proof.
Where proof depends largely on expert testimony,
the lawyer must consider whether the available expert can
communicate clearly or whether he would leave the judge more
confused than before the witness took the stand. An articulate
expert obviously would be more persuasive than a dry stipula-
tion; an incoherent expert might be no better (or even worse)
than a stipulation.
If Party A has expert testimony strongly refuting
a large part of the Party B’s claims, and Party B can counter-
act that evidence only partially and at considerable time and
expense, then Party B should consider —— if not conceding that
part of the case —— offering to stipulate to some features of
Party A’s testimony. Where matters can so easily be proved by
an opposing party, a stipulation sometimes can make the best
of a bad situation by minimizing the importance of the matter.
Remember: expert testimony is not only expensive, but one may
not always be able to find and use the desirable person.
Ultimately, the decision to stipulate will be
influenced greatly by how much the lawyer thinks he can
accomplish in a case. The more confident he is in completely
defeating the other side, the less inclined he will be to
stipulate.
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e. Other Agreements —
(1) Witnesses:
Even where the parties do not agree to sub-
stitute stipulations for expert testimony, they still can
decide to limit the number of experts who testify on each
side. Such an agreement is especially desirable where a
government agency with limited resources is facing a pros-
perous corporation. Even where the agreement does not
provide for each party’s presenting the same number of
experts, it still prevents the less affluent party from
being inundated by a legion of opposition experts. When-
ever the parties are forced to name the witnesses they
expect to call and to limit themselves to these named
witnesses, a party who is not sure of the identity of all
its witnesses should leave a way to add to the list until
shortly before the hearing. The following statement in a
prehearing order will accomplish this:
The parties reserve the right to call
additional witnesses at the hearing, but
only if the names and addresses of such
additional witnesses are furnished to
opposing counsel at least — days prior
to the hearing.
(2) Authenticity of Documents:
The authenticity of documents also may be
agreed upon, but guard against going too far. The mere
authenticity of documents says nothing about their
relevance. Guard against signing an agreement so broadly
worded that it stipulates to both the relevance and
authenticity of a document when only the latter is intended.
And consider providing that if any party wishes to use
exhibits not identified in the prehearing order, then that
party must give prompt notice to the other parties stating
the reason for failing to identify the exhibits at an
earlier time.
f. Court Reporters at Prehearing Conferences —
Section 124.83 does not require transcripts of
prehearing conferences, although nothing prevents the AU
from ordering that one be made. Some judges feel that court
reporters “cramp their style” or limit the effectiveness of
the prehearing conference. But if prehearing conferences are
to become a serious and important part of the hearing process,
the reporting of the conferences should be an accepted practice.
A transcript of a meaningful conference can be as valuable as
a transcript of the hearing itself.
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3. Diacovei’y
a. Introduction —
If properly executed, discovery performs at least
two valuable functions for the trial lawyer: (i) it helps
reveal the essential strengths and weaknesses of each party’s
case, and (ii) it allows the attorneys to be so well—informed
on the strengths and weaknesses of each side that they can
present their own cases more effectively.
Although available to parties in federal court
proceedings, discovery is not readily available to parties
appearing before federal agencies in administrative litigation.
Where discovery is allowed by agency rule, it can be very
helpful in complex cases. [ See Tomlinson, “Report of the
Committee on Compliance and Enforcement Proceedings in support
of Recommendation No. 21,” Recommendation and Reports of the
Administrative Conference of the United States , Vol. 1, 577,
583]
Limited discovery opportunities have been avail-
able as part of the NPDES evidentiary hearing procedures since
1979. [ 44 Fed. Reg. 32941, June 7, 1979] All of the tradi-
tional mechanisms —— depositions, interrogatories, production
of documents, admissions of facts —— are contemplated by the
Subpart E regulations. [ SS124.74(c)(4), 124.76, 124.83(b) and
(c), 124.85(b)(2), (13) and (16)]
b. Trial Preparation Material —
The discoverability of trial preparation material
involves a conflict between two goals: (i) obtaining discovery
so that the trial can be based on the merits rather than on
which side surprises the other the most, and (ii) having each
side prepare its own case without feeding off the efforts of
the other side. Rule 26 of the Federal Rules of Civil Proce-
dure resolves this conflict by:
(1) Requiring that before a party can obtain
trial preparation material from another side, it must show
(i) that it has substantial need for the material in the
preparation of his case, and (ii) it is unable to obtain
the substantial equivalent of the materials by other means
without undue hardship.
(2) Affording special protection against dis-
covery of the creative aspects of trial preparation,
e.g. , mental impressions, conclusions and legal theories.
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The key to deciding if certain items constitute
trial preparation material is not whether mental impressions
or conclusions are found in the pertinent documents but whether
they were prepared with a litigation purpose in mind. The
presence of mental impressions, conclusions, or legal theories
in a document is important in determining whether an item that
may be trial preparation material also qualifies for the more
protected category known as “work product.” In safeguarding
the more creative type of trial preparation, Rule 26 states
that even if there is special need for the information and an
inability to otherwise obtain its substantial equivalent, the
court still “shall protect against disclosure of the mental
impressions, conclusions, opinions, or legal theories of an
attorney or other representative of a party concerning the
litigation.”
c. Depositions —
(1) The Decision to Depose:
Depositions should be considered an extra-
ordinary form of discovery in NPDES evidentiary proceedings.
Start by assuming that the AU will need to be convinced
that a deposition of a particular individual is the most
efficient way to expedite the hearing or aid the disposi-
tion of the case. Don’t bother asking leave to take a
deposition unless the information is not otherwise obtain-
able, and unless there is substantial reason to believe
that highly relevant and probative evidence may otherwise
not be preserved for presentation by a witness at the
hearing with full opportunity for cross—examination.
(2) Deponents Who Represent Organizations:
By analogy to Rule 30(b)(6) of the Federal
Rules of Civil Procedure, if the discovering party can
designate with some certainty the matters on which examina-
tion is requested, the responding party should be obliged
to determine who, within its organization, has the desired
information and to designate one or more officers, directors,
managing agents or other persons to testify on its behalf.
Thus, the responding organization can be strategically
selective: if several officials have the information
sought, the organization can designate the one who will
make the best impression and who will not give away more
than is requested. The deposition of the individual named
by the organization sometimes can lead to knowledge of
other deposition targets who may be less circumspect and
likely to give more than the minimal amount of information
required.
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(3) Hints for Taking Depositions:
(a) Questioning technique —
The deponent is interrogated by opposing counsel
as though he were under cross—examination at trial. Fol-
lowing the examination, lawyers representing other party
litigants have the right to supplement the examination with
their own questions. If the deponent is a key witness for
the opposing side and he is talkative, deposing counsel
should allow him to ramble on; it may lead to his discredit
or to some damaging statements.
During examination of the deponent, use precise,
unambiguous questions. The deponent’s version must be
extracted carefully and clearly without the risk of misun-
derstanding. Not only does the lawyer need to absorb the
facts, but the deponent should not be given a chance later
on at the hearing to explain away inconsistencies simply
because the questions at the deposition were ambiguous or
complicated.
(b) Deposing the opponent’s expert —
The following checklist is helpful when taking
the deposition of any opponent’s expert. It is a good way
to organize the questioning and ensures that all pertinent
matters are covered,
(i) Have the expert identify all documents
that he has brought, including all papers he used in
preparing his report or analysis (even though he may
not be referring to them during the deposition).
(ii) Copy every item that the expert brings
with him, even though he does not refer to all items
during the deposition. If the witness seems to be
withholding any documents, ask if he has “considered,
referred to or relied upon” any particular documents,
papers or other materials in forming his opinion or in
preparing for the deposition.
(iii) Identify specifically, item—by—item, every-
thing he has refused to give up (number of pages, color
ink, typed or handwritten, an original or photocopy,
etc.). This minimizes the chance that the documents
can be altered between the time of the deposition and
the time of the hearing. Ask the deponent to describe
each so that if you were to refer to it later, he would
know what you were talking about. Ask him whether he
considers any of the documents (whether or not surren-
dered) to be any more important than the others, and
whether he has relied on any of them more than on the
others.
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(iv) Qualify the deponent. Does the witness
consider himself an expert in any field? Which? Why?
Does he have a “curriculum vitae” ( i.e. , a list of his
education, experience, publications, etc.)? Has he
published any articles? When? Where? Formal education
or any other job training?
(v) When was he first contacted to come into
the case? Who referred the case to him? When? Under
what circumstances?
(vi) Elicit the information supplied to him by
the referring party. (A way to determine whether or
not the deponent was told what his opinion should be.)
And what physical evidence did he examine?
(vii) What did he personally do? Take any
photographs? Perform any tests? Measurements? Did
he prepare any reports? (Be sure to copy any that he
brought.)
(viii) Does he have any opinions or criticisms
of the terms, conditions and other requirements in the
permit? If so, what are those opinions or criticisms?
What is the basis for those opinions or criticisms?
What facts, treatises, tests, etc., were important to
him in forming his opinion/criticism? (Attempt to
eliminate as many factors as possible, i.e. , list all
those facts, etc., which were available to him but
which he did not consider important in forming his
opinion/criticism.) And finally, ask him what he
recommends as an alternative to what he criticizes.
(5) Preparing Your Witness for a Deposition
to be Taken by Opposing Counsel:
(a) Reviewing testimony before deposition —
Ask your witness to meet with you hours or days
(depending on the complexity of the issues) before his
deposition. During this meeting, tell the witness the
kinds of questions to expect and review his knowledge of
the matters at issue. The time necessary for conducting
this pre—deposition review may be lengthy, especially
where a large number of documents or detailed calculations
are involved. Carefully review all such documents and
calculations with the witness prior to his deposition.
(b) Technique of answering —
Warn the witness not to give any more information
than is absolutely necessary to answer the questions asked.
The more he elaborates, the greater the chance that he
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will blunder into a statement that can discredit him.
Advise him not to answer a question he does not understand,
and encourage him to ask that questions be repeated or
rephrased.
(6) Objections During the Deposition:
Although the taking of a deposition resembles
regular trial court proceedings in many ways, it is markedly
different in the manner in which objections are handled.
The primary function of the deposition officer (court
reporter) is not to make rulings on evidence, but rather to
supervise the orderly recording of the deponent’s testimony.
For this reason, objections are not decided on the spot;
they can be reserved for later ruling at the hearing when
the deposition is introduced. Because the rulings are
postponed, all evidence is taken subject to the objections.
The court reporter merely notes these objections within the
deposition.
Certain objections are waived unless made
during the deposition itself: errors that can be corrected
immediately by the lawyer or witness, such as irregularities
in the manner of taking the deposition, in the form of the
questions or answers, or in the conduct of the parties.
Objections relating to the value of the evidence itself,
rather than points of form or decorum, are not waived even
if no objection is made during the deposition proceedings.
(7) Protective Measures — Terminating or Limit-
ing the Deposition:
Whenever opposing counsel attempts to use
the deposition proceedings, not as a legitimate discovery
device to gain information, but as attempt to annoy, embar-
rass or oppress the deponent or party, the wronged party
or deponent may move for an order to terminate or limit
the examination.
(8) Marking Exhibits During a Deposition:
Lawyers often mishandle the technique of
showing a document or other exhibit to the deponent during
the taking of his deposition. Questioning the deponent
on the exhibit will avoid any unexpected answers by the
witness concerning the exhibit during the trial. A lawyer
can prepare a more adequate cross—examination when he knows
the precise answers of the witness concerning the exhibit.
Hand the exhibit to the court reporter and
ask that it be marked as a deposition exhibit for identif i—
cation. If the witness identifies any part or portion of
the exhibit, ask him to place a distinctive marking, such
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as a bracket “ [ ]“ or an AX”, at that part with his initials
next to it so that the witness later cannot change the
reference point without obvious contradiction.
Illustration
COUNSEL: (To the Court Reporter)
Please mark this document as Goodman
Deposition Exhibit No. 1 for Identi-
fication.
(After the Court Reporter has iden-
tified the exhibit, Counsel can then
ask queet’vone relating to it.)
COUNSEL: I hand you what has been
marked as Goodman Deposition Exhibit
No. 1 for Identification, consist-
ing of eight pages, and ask if that
document truly and correctly portrays
(whatever it purports to portray].
THE WITNESS: Yes, it does.
Q: Would you specifically identify
what portions of this exhibit most
influenced your company’s conclusions
about what the permit conditions
ought to be?
A: It is right here on pages 6 and
7; the items covered under Roman
numerals XI and XII.
Q: Please take this red pen and
mark or circle the items to which
you are referring and place your
initials next to the mark or circle
that you make.
After the witness has identified the relevant portions
of the exhibit, counsel knows what the witness’s direct
testimony should be at the hearing, and he will be able
to prepare cross—examination on the matters to which the
witness is committed.
d. Interrogatories —
(1) Generally:
Under most rules of practice, the scope of
inquiry for written interrogatories is the same as for the
oral deposition. The propriety of written interrogatories
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also should be judged, in part, by the extent to which they
result in annoyance, expense, harassment or oppression
upon the answering party. If your opponent proposes inter—
rogatories that are unduly numerous or wide—ranging, then
you should oppose his motion for discovery unless the AU
imposes reasonable controls on the number and scope of the
questions and other appropriate conditions. Interrogatories
should be clear and precise. Interrogatories that consist
of sweeping demands that the responding party set forth
all he knows about a particular matter may be too broad
and thus subject to legitimate objection by the respondent.
The amount of work that the responding party
must perform to answer is also relevant in determining the
legitimacy of interrogatories. What is impermissibly
burdensome depends on balancing two goals of discovery:
the need to expose information that will be useful for
trial preparation and the desire that each side prepare
its own case. One of the most important factors is whether
the work necessary to supply the information would benefit
only the discovering party or would contribute also to
the preparation of the respondent’s own case. Activity
that produces information useful to both the discovering
and responding parties advances the cause of informed
trial preparation without making one side work for the
other. Another key factor in determining the reasonable—
ness of the burden is whether the responding party has
made assertions suggesting it either has the information
or intends to get it.
(2) Strengths of Interrogatories as a Discovery
Tool:
Each case presents a unique tactical problem
from start to finish. A list of considerations can best
demonstrate some of the problems to be resolved by the
trial lawyer. Some of the reasons for submitting written
interrogatories are as follows:
(a) Obtain preliminary facts, information to supple-
ment these facts, or information to supplement
the oral deposition.
(b) Eliminate issues and avoid time—consuming oral
depositions.
(C) Elicit some essential facts needed to obtain
additional information such as the names of
persons known by the party to have relevant
information, business statistics, lists of
documents and information about the internal
workings of a company.
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Cd) Obtain precise information in response to
questions which might not be possible at oral
depositions. Example: detailed facts not
readily available to an individual deponent.
(3) Weaknesses of Interrogatories:
Some of the reasons for not using written
interrogatories are as follows:
(a) In complex fact issues, written interrogatories
can become cumbersome and tedious.
(b) When requesting answers from an opposing party
concerning crucial questions of fact, the oppo-
nent’s lawyer customarily reads and approves
the language used by the person answering.
(4) Responses to Interrogatories:
(a) Option to produce business records —
When the information sought can be obtained
by a search of the respondent’s business records and the
burden of deriving or ascertaining the answer is substan-
tially the same for both parties, the responding party may
answer such interrogatory merely by specifying the records
from which the answer may be derived or ascertained and
by affording the asking party reasonable opportunity to
examine, audit or inspect such records. (See Rule 33 Cc)]
However, a respondent may not impose on an interrogating
party a mass of records on which research is feasible
only for one familiar with the records. Thus, a party
with a unique filing system or an unusual and complex
computerized data storage and retrieval system probably
could not merely point to the records and then walk away
without giving the interrogating party some clue to the
method of finding the desired information.
(b) What to avoid in drafting answers —
Answers should be responsive, unevasive and
complete. Avoid incorporation by reference unless neces-
sary to prevent needlessly long, complex and repetitious
answers. When materials outside the answer are incorpo-
rated by reference, identify the pertinent parts of such
documents. For example, merely referring the interrogat-
ing party to a lengthy deposition without pointing out
the portions relied on by the answering party is not a
sufficient answer.
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(c) Objections to interrogatories —
Customary objections to interrogatories are:
(i) Insufficient time to answer.
(ii) Answers sought are readily known to the
inquiring party and the request amounts
to an undue burden upon the requested
party.
(iii) Information sought is in the possession
of the party requesting the information.
(iv) Information sought is a matter of public
record and equally available to both
parties.
Cv) Interrogatories are unreasonably burden-
some and time—consuming. (This objection
must be supported by well—detailed
reasons.)
(vi) Material or information is for trial
preparation, or relates to non—witness
experts, for which (or concerning whom)
the necessary showing of need and inabil-
ity to obtain the equivalent has not been
made.
(vii) Interrogatories request a legal opinion.
(viii) Scope of the interrogatories is too
broad.
4. Making the Hearing Record
a. Significance of the Agency Hearing Record —
Section 402 of the Clean Water Act requires EPA
to provide an opportunity for a formal adjudicatory hearing
“on the record” to an NPDES permit applicant or any other
interested person who, among other things, challenges any
of the conditions or requirements in a final permit deci-
sion issued by a Regional Administrator. [ See, e.g.,
Seacoast Anti—Pollution League v. Costle , 572 F. 2d 872,
(1st Cir.) 1978)3 The Regional Administrator does not
even attend, much less preside at, this hearing. Thus, his
decision in the matter and, ultimately, that of the Admini-
strator must be based on a trustworthy form of second—hand
information about what was said and done at the hearing.
The mechanism for officially assembling this information
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is the preparation of a written account of all the acts
an occurrences in the proceeding. The assembled informa-
tion and material becomes the basis for the final Agency
action on the case That action (usually a written decision)
is itself yet another part of the compilation known as the
“record.” Any party who is dissatisfied with all or any
part of the Administrator’s final permit deãision in the
matter may ask a federal appeals court to review the
propriety and sufficiency of that decision. For its
part, the court may look only at the formal hearing record
that has been officially sent to it from the Agency. [ See
Chapter I, p. 1—121
The record, which is assembled and bound into one
or more large volumes after the hearing and intra—agency
appeals process is completed, will include virtually every
significant and insignificant piece of paper that was pro-
duced and filed during the permit issuance process: from
the permit application to the Administrator’s final deci-
sion. The record also will contain a verbatim transcript
of proceedings and a transcript of any on—the—record pre—
hearing conferences. Attached to the transcript, or some-
where else in the bundle of papers, will be the exhibits
that were identified and offered at the hearing, whether
or not such exhibits actually were received in evidence.
b. The Court Reporter —
The principal participants at a hearing —— the
AU and the lawyers —— “make” the record with the help of
a court reporter. The reporter’s primary responsibility
during a hearing is to correctly and completely take down
(stenographically or with a recording device) everything
said by the participants and witnesses: all testimony, as
well as evidentiary objections and arguments by the lawyers
and the comments and rulings of the judge. Tangible exhi-
bits are usually tagged or marked by the reporter at of fer—
ing counsel’s request and these exhibits are kept by the
reporter when they are not being used during the hearing.
At the close of the hearing, the reporter delivers the
completed transcript, as well as these exhibits, to the
Regional Hearing Clerk for inclusion in the record.
Competent court reporters, together with skillful
lawyers and judges, are the keys to complete and accurate
hearing records. Making it all work requires sensitivity
to the reporter’s most difficult task: hearing and under-
standing everything said by the hearing participants.
These suggestions make that job easier:
(1) Even a very competent court reporter cannot
make an accurate record when more than one person talks at
the same time. In this situation, the reporter will be
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unable to hear everything that is said or to remember all
of the overlapping statements long enough to sort out and
record them while trying to keep up with the continuing
testimony or argument.
(2) In hearings involving substantial amounts
of technical terminology or jargon, lawyers can contribute
to the record’s accuracy by supplying the reporter with a
glossary of terms likely to be used.
(3) Lawyers are often careless in referring to
exhibits. Court reporters are impatient with lawyers who,
after diligently getting exhibits properly marked, fail to
refer to the exhibit’s number or letter. A lawyer’s
reference to “this report” or “that letter” makes the
record confusing. Where an exhibit is marked for identi-
fication, make the reference complete: “I hand you what
has been marked EPA Exhibit No. 2 for Identification.”
(4) A lawyer cannot direct the court reporter
to go “off the record” if opposing counsel and, especially,
the AU have not agreed. Many experienced court reporters
simply continue to record. Whenever recording does stop,
the reporter makes some kind of notation in the transcript,
such as: “(Whereupon discussion off the record was had)”.
And then there is the question of when recording shall
resume. Confusion here might mean that an important con-
cession or stipulation may not get in the record, or it
may get in the record in a form that makes it impossible
to determine what it relates to. Counsel must clearly
state when he wants to “go back on the record.” As a
rule, the AU is responsible for managing the going—on
and going—off the record. Remember, though, it is your
case, not his!
c. Requesting That a Record be Made —
Many aspects of a litigated matter will not
become part of the record unless counsel makes sure that there
is a court reporter present and that the reporter is record-
ing the proceedings. For example, there usually will not be a
reporter present at a prehearing ccnference or at other con-
ferences with the AU, unless counsel requests and the judge
agrees that a record of the conference be kept.
d. Statements for the Record —
Many times it is necessary or appropriate for
counsel or the judge to make a statement for the record. Such
statements are useful to fill gaps in testimony of witnesses
who give inaudible responses. Instead of reminding the witness
to answer clearly, examining counsel may turn to the court
reporter and say, “Let the record show that the witness, in
response to the question, nodded his head in the affirmative.”
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Statements for the record are appropriate when
the circumstances in which an answer is given might affect the
weight to be accorded it. For example, on cross—examination,
when a witness spends excessive time examining a document or
searching for an answer, cross—examining counsel might appro-
priately state: “Let the record show that the witness has
already taken two minutes thinking about his answer.u
e. Stipulations —
A lawyer’s statement for the record, expressly
agreed to by opposing counsel, is a stipulation. An unchal-
lenged statement for the record also might qualify as a stipu-
lation, but probably with less force and effect. Stipulations
can be important in simplifying and expediting the hearing and
in filling evidentiary gaps. But they must be made part of
the trial record.
A stipulation is simply an agreement between
lawyers for litigating parties referring to some matter in
the proceeding. In the absence of special circumstances that
might convince the AU or the Administrator to nullify it,
a stipulation by lawyers binds the parties they represent.
Stipulations entered into by mistake or deception can be set
aside. Stipulations can involve matters of procedure or evi-
dence. Typical examples of procedural stipulations appear
in Rule 29 of the Federal Rules of Civil Procedure.
An evidentiary stipulation admits or concedes
specified facts, and thus obviates full—scale proof. Such a
stipulation amounts to a formal admission —— an abandonment
of any contention to the contrary —— and the parties who have
stipulated cannot offer evidence to dispute the agreed facts.
Complicated stipulations, such as elaborate hypo-
thetical questions for an expert witness, are usually written
out by counsel and then edited. The final written product is
filed in the case or read into the record, or both. Simple,
single—subject stipulations can be stated for the record ex-
temporaneously. But make sure (i) that the court reporter is
recording your words, (ii) that the terms of the stipulation
are clear and unambiguous, and (iii) that opposing counsel
states for the record his unqualified acquiescence.
In cases where deposition exhibits will be used
in a hearing, a stipulation for the record might go like this:
COUNSEL: Let the record show that the
parties stipulate that EPA’s Paddington
Deposition Exhibits Nos. 4, 5, 6 and 7
for Identification will be admissible
in evidence at the hearing without
further foundation or proof. The same
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stipulation is made for Permittee’s
Gonniff Deposition Exhibits C, D, E, F
and G for Identification.
OPPOSING COUNSEL: So stipulated.
At trial, sponsoring counsel will have the court
reporter mark the deposition exhibits with new numbers or let-
ters to be used in referring to the exhibits thereafter. When
offering the exhibits, the lawyers will tell the judge that
the admissibility of the exhibits has been stipulated and will
repeat the full stipulation for the record. The exhibits
then should be received by the AU and admitted into the record
without further foundation proof, although witnesses may make
use of them in the course of their testimony.
Stipulations are often made during the course of
a hearing. As opposing counsel plods through a proper founda-
tion for the introduction of a document, you may decide there
is no reason why he must continue these formalities. In such
a case, do not hesitate to interrupt and say: “We will stipu-
late that Permittee’s Exhibit 18 for Identification is what it
purports to be.” If your offer is accepted by opposing counsel,
the stipulation will do nothing more than authenticate the
document. Stipulating that a writing is “what it purports to
be” leaves open the right to object based on evidentiary rules
other than those relating to authentication.
An AU who is interested in expediting a hearing
may require a lawyer for one side to accept his opponent’s
stipulation that unequivocally concedes everything that could
be shown by making full proof e However, where an offered
stipulation does not supply everything to which counsel is
entitled, he should be allowed to make a complete record on the
matter in question. For example, if opposing counsel wants to
keep out of the record your expert witness’s impressive creden-
tials, he might interrupt the preliminary examination to say,
“We will stipulate that Professor Schiemmer is a qualified
chemical engineer, your Honor.” Such a stipulation does not
give examining counsel everything to which he is entitled
if the case is essentially a battle of experts. In order to
assign comparative weight to the opinions of opposing experts
who testify in the case, the judge is entitled to hear and
assess the qualifications of each of them. Examining counsel
is entitled to make full proof of those qualifications, and
may do so in the following way:
COUNSEL: Your Honor, if opposing counsel
is ready to stipulate that this witness
is a qualified chemical engineer, then I
will so stipulate if my opponent will fur-
ther stipulate that Professor Schlemxner’s
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curriculum vitae, a sixteen page document
that I am now asking the court reporter to
mark as EPA Exhibit No. 34 for Identifica-
tion, is a true and correct statement of
his background, experience and other cre-
dentials and that such exhibit be admitted
into evidence and made part of the record.
If opposing counsel stipulates on the record,
then the matter is finished when the exhibit is ordered ad-
mitted. If opposing counsel refuses to stipulate, counsel
can either “walk” the witness through the “c.v.” line—by—line
in question—and—answer fashion or have the witness identify
the exhibit as a true and correct statement of his background,
experience and professional qualifications.
5. TeBtimony
a. Generally —
Making a hearing record largely consists of of-
fering evidence in the form of oral testimony, verified state-
ments of fact or opinion ( i.e. , written testimony) and tangible
exhibits. The usual method for offering oral testimony into
evidence is by direct examination or cross—examination of a
witness who testifies under oath. For written testimony, the
person whose testimony is being offered takes the witness stand,
identifies the testimony, and affirms its contents under oath.
He is then subject to oral cross—examination upon the substance
thereof.
b. Oral Direct Examination —
(1) Objectives:
Direct examination —— the statements of
a witness for the party on whose behalf he is called ——
should (i) establish or lead to the establishment of a
prima facie case on the matters at issue, and (ii) put
into evidence all relevant documentary proof.
(2) Guidelines on Direct Examination:
(a) Frame all questions in brief, clear and
relatively simple form, commensurate with the
sophistication of the witness and the subject
matter. Even an experienced witness can be
confused or misled by overly technical or drawn—
out questions. In particular, avoid compound
questions; they tend to leave everyone baffled
and usually result in ambiguous or incomplete
responses.
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(b) Put the questions in chronological or other
meaningful, relevant sequence.
Cc) Do not repeat the witness’s answer, except where
you want to emphasize an unusually important
point.
(d) If you have a highly intelligent and persuasive
witness, give him full reign.
(e) Where you use a chart or diagram, be sure you
have conferred with the witness before trial as
to the significance of the various markings on
the exhibit. Never show a chart or diagram to
a witness for the first time at the hearing.
(f) Do not press your witnesses too strongly on
direct examination. Where a witness does not
grasp your meaning and give the answer you
want, do not repeat the question in exactly the
same way. When witnesses try to guess what
examining counsel wants, their answers can ruin
the case. If you must repeat the question, try
simplifying it or changing its form.
(g) Avoid leading questions —— a question that sug-
gests its own answer. In the typical leading
question, it is the questioner’s version of the
facts that goes into the record. With some
exceptions, this type of question is objection-
able on direct examination. (See, e.g. , Rule
611(c) of the Federal Rules of Evidence (Fed.R.
Evid.)] But situations exist where leading
questions on direct examination are allowed:
(i) Preliminary matters not going to the heart
of the case.
Q: And you are employed by Potomac Electric
Power Company, I believe?
A: Yes.
Q: And have been for about ten years?
A: That is true.
(ii) Undisputed matters where the question
connects two areas of inquiry.
Q: You testified earlier, I believe, that
you calculated raw waste loads of BOD—5
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and COD by excluding any waste load asso-
ciated with solvents.
A: Yes.
Q: Very well, then let me ask you this,...?
(iii) An adverse or hostile witness can be asked
leading questions. There is very little
danger that such a witness would accept a
false suggestion contained in a leading
question.
(iv) Leading questions are allowed during direct
examination when a witness gives “surprise”
answers. Surprise usually happens where
the witness’s direct testimony sharply
conflicts with his deposition testimony
or with a previous statement.
(v) Leading questions can be asked of a witness
whose recollection has been exhausted but
who apparently possesses additional in—
formation of a relevant sort. Refresh a
witness’s recollection through a leading
question in this fashion:
Q: Can you remember the names of any
other people who attended this meeting?
A: No, I cannot. I know there were others
but I just cannot seem to come up with
their names now.
Q: Have you exhausted your recollection
of the persons who were present?
A: I am afraid so.
Q: Would it help you remember if I sug-
gested to you that John Jarndyce also
attended that meeting?
A: Yes, now I remember. John was there.
OR
Q: Would it help your memory if I showed
you a document, which I now ask the court
reporter to mark as EPA Exhibit 3 for Iden-
tification, being a one—page memorandum
that purports to be written by you on
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October 1, 1980, relating to a meeting
that took place at the offices of Otis B.
Driftwood on September 30, 1980?
A: Yes.
Q: Would you please look at this exhibit
and tell Judge Draykopf if it refreshes
your recollection of the persons who
attended the meeting.
A: Oh, yes. I recall writing this memo.
The persons mentioned in it were at the
meeting.
If the witness needs a document to refresh
his recollection, opposing counsel has a
right to see it. By allowing opposing
counsel to see the document before you
hand it to the witness, you avoid opposing
counsel’s inevitable request that he be
allowed to see it.
(3) Direct Examination of the Expert Witness:
(a) Introduction —
Generally, witnesses must testify only about
facts of which they have direct knowledge, and they may not
express opinions and beliefs about subjects on which a judge
could form a conclusion. Experts, however, are allowed to
express their opinions and conclusions on relevant matters if
four conditions are met:
(i) Specialized knowledge will assist the
judge in understanding the evidence or in
determining a fact in issue.
(ii) The validity of the opinion or conclusion
depends on special knowledge, skill or
training.
(iii) The witness is qualified as an expert in
the pertinent field by knowledge, skill
experience or training.
(iv) The expert possesses a reasonable degree
of certainty (probability) about his
opinion or conclusion. [ Fed.R.Evid. 7021
The expert can express an opinion based on facts personally
observed or even by taking into account facts and information
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(iii) The expert should use clear, simple lan-
guage in his testimony. If it is neces-
sary for him to use technical terms, both
he and the lawyer should understand their
meaning and should develop an effective
method of explaining them to the judge.
Cc) Presenting the testimony —
Handling direct testimony by an expert is a two—
step process: (i) asking a series of questions eliciting
his qualifications as an expert, and (ii) making sure the
record clearly shows the data, information or other basis
for the expert’s opinion.
After the direct questions to qualify the wit-
ness, but before examining counsel moves into substantive
areas, opposing counsel may interrupt the questioning to
test the competency of the expert by asking the judge for
an opportunity to take the witness on “voir dire,” i.e. , a
preliminary examination of the witness to test his compe-
tency, etc. If opposing counsel has a basis for challeng-
ing the witness’s qualifications to give an “expert”
opinion, this is the point at which to make the record.
Lawyers use hypothetical questions whenever
an expert witness has no direct knowledge of the facts or
evidence on which his opinion is sought. The examining
lawyer should draft the hypothetical question (with the
expert’s help) before the hearing. At the beginning of
a hypothetical question the lawyer asks the witness to
assume as true all of the facts stated in the body of the
question. The question recites, in hypothetical form, the
material facts on which the expert’s opinion is to express
his opinion. (In the federal courts, it is not always
necessary to lay out all of the underlying facts.) [ See
Fed.R.Evid. 7051 The conclusion of the question asks
whether the witness has an opinion, based upon a reason-
able degree of certainty, regarding the assumed facts.
Thus, a hypothetical question may end this way:
Q: Ms. Rittenhouse, assuming all these
facts to be true, do you have an opinion,
based upon a reasonable degree of certainty,
whether the nature of the manufacturing
process will cause the effects described
earlier?
A: Yes, I do.
0: What is that opinion?
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(At this point opposing counsel makes
any objections he has to the question,
and the judge then rules upon it.
Otherwise, the witness expresses the
opinion. J
c. Written Direct Testimony —
The objections and, to a great extent, many of
the guidelines in preparing for oral direct examination also
apply to preparing written direct testimony. Direct testimony
prepared in writing and submitted at the hearing is nothing
more or less than a statement of the witness’s qualifications,
his opinions and conclusions, with supporting facts and in-
formation —— in effect, a carefully written and polished
“transcript” in narrative form. In theory, the testimony
should be substantially equivalent to what would be developed
through a standard question—and—answer direct examination
format.
In controversial cases and in other situations
where the chances are good that an evidentiary hearing will
be held, the tentative written testimony of each prospective
witness should be prepared in outline form contemporaneously
with the preparation of the Fact Sheet. Ordinarily, work on
such outlines of testimony can await the Regional Administra-
tor’s granting the hearing request when the contested permit
provisions and other issues will be identified. A team
approach can be especially useful for this kind of direct
testimony by first having each potential witness prepare a
draft of his testimony and then circulating the draft testimony
in—house for comment and criticism.
The testimony should not be the work of a com-
mittee, if for no other reason than because the witness him-
self ultimately must defend it under oath based upon his own
personal knowledge and expertise. The purpose of circulating
draft testimony is to ensure that the testimony is complete
and to coordinate the content of the proposed testimony with
that of other witnesses and experts. Preparing written testi-
mony is a difficult task. The case manager or trial staff
leader must share responsibility with the witness for the
accuracy and thoroughness of the testimony.
Introducing written direct testimony into evi-
dence at a hearing is similar to introducing other kinds of
documents into evidence. [ See “Managing Exhibits,” infra ]
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Illustration
OFFERING COUNSEL: (To the court reporter)
I would like marked as EPA Exhibit 8 for
Identification the testimony of Stewart
Potter, consisting of some 27 pages of text
with two attached figures. I also would
like marked as EPA Exhibit 9 for Identifi-
cation the testimony of Lillian Kalman,
consisting of some 30 pages of text, one
table and one drawing. Finally, I would
like marked as EPA Exhibit 10 for Identi-
fication the testimony of Richard Bellamy,
consisting of some 19 pages of text.
(The court reporter 80 marks the exhibits.)
OFFERING COUNSEL (Resuming): Your Honor,
I would respectfully ask you to confirm on
the record that EPA Exhibits 8 thru 10 have
been marked as I indicated.
THE COURT: The exhibits you mentioned have
been so marked.
OFFERING COUNSEL: At this time EPA would
offer to stipulate that if the various per-
Sons who I have named during my description
of EPA Exhibits 8 thru 10 were called to
the stand they would confirm that they were,
respectively, the authors of the testimony
and attachments attributed to them; that
the testimony was true and correct to the
best of their knowledge, subject to any
corrections they might make at the time
they take the stand; and that they wish
to adopt such testimony as their testi-
mony in this proceeding.
OPPOSING COUNSEL: So stipulated.
OFFERING COUNSEL: At this time I would
offer into evidence EPA Exhibits 8 thru
10 subject to any motions to strike
counsel may later have.
THE COURT: The three exhibits —— each
of them direct testimony and, in two
cases, with related attachments —— will
be received as EPA Exhibits 8 through 10
subject to a motion to strike.
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d. Redirect Examination —
Despite the care taken in preparing direct
testimony or in preparing a witness for cross—examination,
some matter may be omitted that should be addressed, or
something may surface in cross—examination that requires
following up. Whenever necessary, the witness’s testimony
should be clarified and/or his credibility re—established by
means of redirect examination. The questioning should be
as brief as possible and directed only toward basic problems
in the case. Judges are seldom concerned about minutiae or
small inaccuracies. Remember: in contested matters, each
side always takes a few hits.
e. Cross—Examination —
(1) Generally:
Cross—examination of an expert is danger-
ous business. It can give the expert an opportunity to
re—emphasize his direct testimony. However, the expert
witness’s credentials do not insulate him entirely from
effective cross—examination. In fact, there are methods
of cross—examination that are especially designed for use
against the expert. But the advice to all inexperienced
lawyers remains: the best cross—examination may be no
cross—examination.
(2) Making the Decision to Cross—Examine:
The final decision about cross—examina-
tion at the hearing must be made following the direct
examination. In complex cases involving multiple parties
cross—examination is, for administrative reasbns, sometimes
postponed for days and even weeks, so there may be time to
consider the decision. Whether or not to cross—examine a
witness depends on the answers to these questions:
(a) Did the direct testimony really hurt my case?
(b) If it did, realistically can I do anything
about it?
(c) How strong was the witness?
(d) Do I have anything concrete to impeach him
with?
Ce) Can I undercut his testimony by other proof?
(f) Are there other ways to obtain and introduce
helpful testimony?
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(g) Do the probable benefits sufficiently outweigh
the possible dangers?
The decision will be easier to the extent you have analyzed,
before trial, whether the purposes of cross—examination
would be served. This prehearing analysis —— the notes
for possible cross—examination —— should be part of the
trial notebook. Typically, you have notes for each witness,
which notes include your observations about the witness,
the nature and location of impeachment material, helpful
new facts to be elicited, etc.
Cross—examination is much more flexible than
direct examination and is, for the most part, restricted
only by considerations of relevance and whether the ques-
tions are ranging too far beyond the direct examination.
Cross—examination may do no more than clar-
ify, supplement or qualify the direct testimony of a not—
very—damaging witness. Whenever possible, however, cross—
examination should be used in a much more aggressive fashion.
The cross—examiner’s questions may challenge the sources of
the witness’s knowledge. (But a witness generally cannot
be cross—examined as to any fact that is collateral and
irrelevant to the issue merely for the purpose of contra-
dicting him by other evidence.) Cross—examination can be
used to extract admissions that undercut the witness’s
direct testimony and that impeach the witness’s veracity,
e.g. , by revealing prior out—of—court statements made by
the witness that are inconsistent with his direct testimony
or by revealing deficiencies in this testimony.
Leading questions can be used on cross—
examination. [ See, e. . , Fed.R.Evid. 611(c)] In fact,
it is virtually impossible to conduct an impeaching cross—
examination without asking leading questions. This does
not mean, however, that the judge will tolerate excessively
argumentative questions. It is one thing to inquire, in
a leading fashion: “Is it not a fact that you failed to
consider variations in the nature of the raw materials
being processed at the plant?” It is quite another thing,
upon being given an unsatisfying response, to ask: “Do
you really expect the judge to believe that?” The second
question is argumentative and contributes nothing to the
record.
(3) Techniques in Cross—Examining Experts —
(a) Generally —
Whether preparing the direct testimony of your
own expert or preparing for cross—examination of an oppo-
nent’s expert, find out whether the expert has published
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articles or books on the subject matter of the upcoming
testimony. One of the favorite techniques of a skilled
cross—examiner is attempting to show that the opinion of
an opponent’s expert is inconsistent with the expert’s own
published work. Such an inconsistency can show that the
expert is unstable in his opinions, or it might suggest
that he has changed his views in anticipation of being
paid for his testimony. For this reason the publications
of counsel’s own expert should be examined carefully for
such inconsistencies. Tell your expert that he will have
to explain these inconsistencies. Legitimate reasons for
the inconsistencies can disarm the effectiveness of the
cross—examination. If the expert has experienced a genuine
change of views, he should admit this candidly and mention
the things that have influenced this change. In other
cases, the facts leading to an earlier opinion may have
been significantly different from the facts underpinning
the later opinion.
(b) Contradiction by citation to and quotation of
learned treatises —
0: Mr. Cleaver, is there a woman by the
name of Seigel who is active in your field?
A: You must mean Carolyn Seigel.
Q: How do you spell her name?
A: S—E—I—G—E—L
0: What was that first name?
A: Carolyn.
Q: Where does she work?
A: In ______________, I believe.
Q: Does she specialize in your field?
A: Yes.
0: Do you know her?
A: I have met her.
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Q: Has she received the (award of distinc-
tion]?
A: Yes, she has.
Q: Is she with the consulting firm of Mark
Edwards & Associates?
A: I believe she is.
Q: Does she teach the subject of your
specialty?
A: Yes.
Q: Where does she teach?
A: ______________ University.
(Note: If the wi..tnese seems to be “holding
back”, it may be advisable to use more lead-
ing questions.]
Q: Does she hold the title of Professor of
(relevant subject]?
A: I believe so.
Q: Is she the head of that department?
A: I believe so.
Q: Has she written any literature on (rele-
vant subject]?
A: Yes.
Q: Used in (relevant sub jectJ courses and by
members of your profession?
A: Yes.
Q: People in your specialty?
A: Yes.
Q: Has she written articles in publications
sponsored by your professional association?
A: Yes, she has.
Q: Has she written any books in the field of
(relevant subject]?
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A: Only one that I know of.
Q: What is the name of the book?
A: (l ’ame of book.J
Q: Is the book in general use and circu-
lation among people in your profession?
A: Yes, it probably is.
Q: Is it considered as authoritative?
A: Yes.
Q: Is Carolyn Seigel considered an
authority in your field?
A: Yes, she is.
Q: I take it that you have read her
book?
A: Some time ago.
Q: You evaluated it at that time?
A: Yes.
Q: Now I have a copy of that book here.
I would like to call your attention to
page ___, the section on ____________
the statement which reads as follows:
__________.“ Would you agree or dis-
agree with that statement?
A: I guess I would disagree.
(C) Opinion based on insufficient information —
Cross—examining expert witnesses is largely
aimed at convincing the judge that the expert’s opinion
is based on insufficient or wrong information. Among
the most effective ways to do this are:
(i) Revealing that the expert did not perform
certain tests or calculations commonly used under
circumstances such as those involved in the case. It
is good practice to have your own expert present
during direct examination of an opponent’s expert
to help detect such deficiencies.
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(ii) Exposing that the expert was poorly informed
on the background data. For example, a biologist who
specializes in fish populations testifies that pollu-
tants from a facility caused large fish kills and a
general depression in the local population of certain
species; cross—examining counsel then exposes the fact
that he was unaware of earlier unrelated events that
could have produced the same damage.
(iii) Revealing that the expert’s testimony
contradicts notations that he made in his research
records.
A careful lawyer tries to make sure that his expert has pre-
pared himself to the extent that he will not be vulnerable
to such attacks. This often means assuring that the expert
obtains a complete set of background data relevant to the
controversy and that the expert carefully reviews his own
files shortly before the hearing.
(d) General “do’s” and “don’ts” of cross—examination —
• Fully master the facts and know the weaknesses
of every party’s case. Fully research the elements of
proof so that you know what you must prove and what the
others must prove.
• On a sheet of paper list all points you are
certain the witness ordinarily must admit. These items
should tend to corroborate elements of your own case.
On a second sheet, list the areas in which you expect
to discredit the witness or his testimony. A third
sheet can be used for exhibits.
• Determine whether the opponent’s witness
has said anything detrimental to your case. Question
only where the witness has information necessary to
your case and which you can prove only through that
witness.
• Listen carefully to oral direct examina-
tion. Avoid searching for papers that should have
been arranged for ready reference before the hearing
or using the occasion to consult with your witnesses
and counsel table advisors. Provide these persons
with pen and paper to note any suggestions they might
have.
• Keep your objective hidden. Some witnesses
will answer “no” any time the cross—examiner indicates
by voice, manner or form of question that he is seeking
a “yes” answer. This makes it important that the wit-
ness not know exactly what the objective of the examiner
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is. Sometimes it is helpful to talk and act as though
you do not know anything about a certain subject when
you actually know a lot about it, or when you do not
know, to act as though you do know. The point is that
the witness should not know the extent of the lawyer’s
knowledge of the subject under discussion.
• Ask for and inspect any documents the witness
used or referred to in his direct testimony.
• Try to secure one or two major admissions or
to make one or two major points and then stop, rather
than to chance nullifying the good effect of such cross—
examination by continuing.
• Leading questions are permissible. To make
a leading question more understandable, state the
question followed by the words: “Is that not correct?”
• Cover important subjects early in cross—exam-
ination. Otherwise, you may lose the impact of it in
a prolonged, boring examination.
• Try to get one witness to contradict another.
• Never ask a question unless you know what
the answer will be and that it will be favorable to
your case. (Eaeier said than done.)
• Do not let the witness re—tell his direct
testimony, unless you can absolutely disprove or
discredit the testimony by other witnesses or by
some contradictory statement.
• Do not get diverted. Some witnesses deli-
berately try to divert the cross—examiner from his
objective by an apparent admission on another subject.
Do not follow the new lead unless your preparation and
organization assures your returning to the original
subject.
• Do not allow opposing counsel to interrupt.
Some lawyers try to interrupt cross—examination as
a tip—off to the witness of possible traps or dangers.
• Ask precise, narrow questions. Try framing
your questions so that the witness is obliged to answer
“yes” or “no.” Then object to anything beyond the “yes”
or “no” answer as being “volunteered.” However, in
most cases the judge will allow a witness to explain
a simple “yes” or “no” answer.
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• Do not always insist upon an answer. Silence
may lead to an inference of ignorance or doubt, which
can help your case. But press for an answer when you
know it will be favorable to your case.
• Be careful not to misstate or distort evidence.
• Stop when you’ve succeeded. Leave well enough
alone. Inexperienced cross—examiners return again and
again to the same point in an effort to emphasize it.
Dwelling on the point may give the witness a chance to
think up a way out of the bind you’ve put him in.
(4) Impeachment —
(a) Necessity for foundation for impeachment —
As a general rule, lay the foundation for impeach-
ment of a witness on cross—examination to give the witness
an opportunity to admit, ieny or explain the apparently
contradictory or inconsistent statement.
(b) Preliminary foundation questions —
Ask a series of short questions, each question
covering a separate phase of the foundation rather than
one long question that includes all of the requirements.
Keep the witness answering no” as long as possible. Con-
sider putting the questions in a casual, fumbling manner
suggesting that the cross—examiner has no particular know-
ledge of the impeaching matter. The questions need not be
complete or even grammatically correct. Sometimes this
method will disarm the witness and, sometimes, opposing
counsel may think you are bluffing —— at least for a while.
Questions may take the following form in almost
all types of impeachment:
Q: Have you ever made a contrary statement?
A: No.
Q: Any time?
A: No.
Q: Any place?
A: No.
Q: To any person?
A: No.
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After asking the preliminary foundation questions, the
lawyer should complete the foundation by directing the
witness’s attention, in a “bit—by—bit” manner, to the
specific time, place, persons present and the statement
made.
(c) Have proof available unless direct admission
made —
When the witness is asked if he has ever made
statements contrary to his testimony at the trial and the
time, place and language are specified, and he states
he “does not recollect,” or when the witness says he “does
not remember,” “do not think I did,” “maybe I did,” or
when he makes any statement falling short of a straight-
forward admission that he did make such contradictory
statement, the other party may and should call witnesses
to prove that he did make such statements and it is wrong
for a judge to reject such impeaching evidence. Further
proof is necessary whenever the foundation for impeachment
is laid, except where the witness admits making the con-
tradictory statement.
(d) Types of impeachment —
(i) Former oral statements.
- (ii) Former written statements — laying a
foundation. Call the attention of the witness to the
writing. Ask him whether or not it is his statement.
Give him an opportunity to explain. Produce the state-
ment and show it to the witness. Show the document to
opposing counsel.
(iii) One of the most effective methods of
impeachment is by reference to former contradictory
or inconsistent sworn statements and testimony made
by the witness at a prior trial or hearing. This
includes any sworn statements made at a former trial
between the same or other parties, on the same or
other issues, provided that the subject matter is
material to the issues at the present hearing.
• Foundation:
Have you ever made a contrary statement?
Any time? Any place? To any person? You were a
witness in the __________ hearing, is that correct?
(E8tabli8h time and place.] You were sworn to tell
the truth on that occasion? You did tell the truth?
At that time and place did you not testify that
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• Impeaching witness —— court reporter:
The impeaching witness can be the court re-
porter who reported the previous hearing. The court
reporter should be requested to bring his original
shorthand notes. Counsel should review the notes with
the reporter to locate the impeaching testimony and
mark the place so that there is no delay in making the
reference. If possible, the reporter should transcribe
the impeaching testimony so that the lawyer can easily
refer to the exact questions and answers.
After properly qualifying the court reporter,
have the reporter refer to the contradictory testimony.
The reporter should testify that the witness to be
impeached had been sworn and testified at the previous
hearing.
• Use of transcripts:
Occasionally lawyers object to the use of
transcripts by court reporters in proving former
inconsistent and contradictory sworn testimony. The
objection usually is that the transcript is not the
“best evidence,” i.e. , the testimony should be elicited
by using the original shorthand notes. But the best
evidence rule does not apply; a court reporter may use
a transcript instead of the original shorthand notes.
[ See Fed.R.Evid. 1001(3)]
f. When the Presiding Officer Asks Questions —
The ALIJ has a right to ask questions of the
witnesses in an effort to clarify situations and to bring out
points overlooked by counsel. He even may ask leading ques-
tions. He may participate in the cross—examination to a
limited extent, but generally may not take over either the
direct or cross—examination of a witness for either or both
parties, much less take over the trial of the case. The
problem for the lawyer is whether he dares object to ques-
tioning from the judge. Psychologically it is a bad idea to
object. But if the judge indulges in conduct prejudicial to
the lawyer’s case, he may have no alternative. Protect the
record by making an objection such as:
“If the Court please, I know your Honor
does not intend to prejudice our case
but I feel that the record should show
that we take exception to your Honor’s
questions and the witnessts answers and
ask that they be deleted.”
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Having taken on the judge, it is probably a good idea to say
something friendly to the judge at the next recess —— in the
presence of opposing counsel, of course.
6. Objections and Offers of Proof
a. Purpose of Objections —
Lawyers make objections to show their disapproval
of incidents or happenings in a formal proceeding. Objections
can be raised during the taking of depositions, contested
motions, the hearing itself, in post—hearing motions, or at
any time while the proceedings are pending. The focus here
will be on objections during a hearing.
To the extent the rules of evidence apply, they
will work only if a party, who believes that opposing counsel’s
question is improper or that certain evidence should be excluded,
promptly advises the AL 1 J of that contention and the reasons for
it. The parties, not the judge, must take the initiative in
making evidentiary objections. [ See, e.g. , Fed.R.Evid. 103]
However, it is not unusual to hear a judge exclude evidence to
which counsel has not objected, especially where the offered
evidence is incompetent, irrelevant or prejudicial.
b. Deciding Whether or Not to Object —
A lawyer should assess the chances of his objec-
tion being sustained and the effect of a sustained or over-
ruled objection on his case. An inexperienced trial lawyer
often thinks it is desirable to interrupt his opponent’s
examination of witnesses as often as possible, regardless
of the chances of being sustained, so that it will be more
difficult for the judge to grasp the points his opponent
is trying to make. But a series of frivolous objections,
which are consistently overruled, leaves a bad impression
of objecting counsel and his case.
There are good reasons for not making every
evidentiary objection available. Trial counsel need not
complain about every innocuous leading question put by opposing
counsel as the use of leading questions in preliminary matters
expedites the examination of witnesses, which tends to benefit
everybody and poses no real threat. A lawyer also may abandon
an available objection because he does not want to give the
judge the impression that he is excessively obstructive.
Sometimes a lawyer foregoes objecting because the evidence,
although arguably inadmissible, in some way actually favors
his client’s cause.
For one thing, it pays to keep silent whenever
an opponent’s offer of objectionable evidence might open the
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door for more important evidence of the same type that the
nonobjecting lawyer hopes to offer. Counsel may be able to
argue that if the opponent’s evidence is admitted, his own
evidence on the same subject also should be admitted. However,
such maneuvers should be carefully considered. The risk is in
miscalculating the judge’s attitude; the judge may think that
admitting the opponent’s material does not justify admitting
that of counsel. It is important to object, of course, when-
ever your opponent’s material may be far more harmful than
your own material is beneficial. In this case it makes no
difference whether the admissibility of the opponent’s mate-
rial will lead to the admissibility of counsel’s evidence.
c. Timeliness of Objections —
Because counsel, and not the judge, is obliged
to make legitimate objections in order to “protect the record,”
the failure to make a timely and proper objection to an offer
of evidence amounts to a waiver of any complaint about its
receipt. [ See §124.85(c)(6)]
A lawyer must make his objection as soon as the
basis for it becomes apparent. He cannot keep still and hope
that the witness will give a harmless or maybe even a favorable
answer, and then object when the answer proves to be damaging.
Trial judges usually respond to these belated objections by
commenting, “Asked and answered, counsel.” The words used in
examining counsel’s question will themselves signal a call for
inadmissible testimony. Opposing counsel must try to inject
his objection before the witness answers.
Of course, it is not always possible to insert
one’s objection between the question and the answer. If the
witness responds too quickly, the best that opposing counsel
can do is state his objection as soon as possible, adding a
request that the witness’s answer be stricken. Where an ap-
parently unobjectionable question brings out an inadmissible
answer, counsel cannot make an objection until the impropriety
of the witness’s response becomes apparent. For example, if
the answer is unresponsive, then examining counsel is entitled
to object:
Q: Did you make any calculations?
A: Yes, and I also found a number of
items that should have been considered
but were left out.
BY EXAMINING COUNSEL: I object to every-
thing the witness said after the word
“yes” and I ask that it be stricken,
Your Honor.
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Generally, only examining counsel is entitled
to object to an answer for its lack of responsiveness. Accord-
ingly, examining counsel is free to “adopt” an unresponsive
but favorable answer either by saying so or by simply not
objecting to it. Opposing counsel, not asking the question,
lacks standing to object to any unresponsive answer unless
it is excludable for reasons besides unresponsiveness ( e.g. ,
violates the hearsay rule):
BY EXAMINING COUNSEL: And at that
time and place did you meet with the
plant manager?
A: Yes, and we carefully checked
all the monitoring data for 1981.
BY OPPOSING COUNSEL: Object, unre—
spons ive.
BY EXAMINING COUNSEL: We adopt the
entire answer, Your Honor.
THE COURT: The objection will be
overruled.
The result will be different if the witness’s answer varies
somewhat.
BY EXAMINING COUNSEL: Did you meet
with the plant manager?
A: No, I did not, but my associate
did and she said that both of them
checked all the monitoring data for
1981.
BY OPPOSING COUNSEL: Object, unre-
sponsive and hearsay, Your Honor.
BY EXAMINING COUNSEL: We adopt the
entire answer, Your Honor.
THE COURT: The objection is sustained
on the ground of hearsay. Everything
after the words “did not” will be stricken.
Occasionally, the inadmissibility of testimony
does not become clear until long after it has been received
in evidence. This can happen where cross—examination shows
that a witness’s responses to direct examination seem to have
been based on hearsay rather than personal knowledge. Opposing
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counsel then would move to strike all of the witness’s testi-
mony. And when one side fails to “connect up” conditionally
relevant evidence with other evidence that was promised to
render the earlier evidence relevant, the court should sustain
a renewed objection to the earlier evidence and order that it
be stricken.
d. Objecting to Exhibits —
Make your objections to an exhibit at the
time your opponent formally offers the exhibit in evidence.
Offering counsel is entitled to lay the necessary evidentiary
foundation through one or more “sponsoring” witnesses who are
capable of identifying and otherwise authenticating the exhibit.
Withhold any objections until offering counsel has had a chance
to lay this foundation:
Q: Would you please state your
full name, please?
A: Margaret D. Claypool.
Q: Is that Miss or Mrs.?
A: Mrs., if you please.
Q: What is your present occupa-
tion, Mrs. Claypool?
A: I am the chief of engineering
operations for the Redoubtable
Corporation.
Q: As such, do your duties include
implementing pollution control
measures through the selection
of appropriate equipment and the
monitoring of that equipment’s
performance?
A: Yes.
Q: Mrs. Claypool, do you have with
you any of the records relating to
the performance of the pollution
control equipment at Redoubtable’s
Tinkers Dam facility?
A: I have.
Q: What have you brought?
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A: Essentially, it’s our file on
installation and service and perfor-
mance for the years 1978 through 1981.
BY OPPOSING COUNSEL: Object, Your Honor.
THE COURT: Overruled. Proceed.
0: Would you hand those records to
me, please? (Witneae hand8 foldei’ to
examining counee .)
BY OFFERING COUNSEL: Your Honor, there
are some 80 pages or pieces of paper in
the folder that the witness has handed
to me. We have already marked each
separate page, front and back where
necessary, as Redoubtable Group Exhibit 18.
Q: Mrs. Claypool, handing you what has
been marked Redoubtable’s Group Exhibit
18 for Identification, I ask you if you
can identify it.
BY OPPOSING COUNSEL: Objection, Your Honor.
BY OFFERING COUNSEL: Your Honor, I have
not offered the exhibit yet. I have just
barely gotten it marked for identifica-
tion. May I have an opportunity to lay
the proper foundation for its admission?
I believe I can do that through this wit—
ness. Then I will offer it and opposing
counsel can make any objection he has.
THE COURT: The objection is overruled.
Counsel, you will wait until the exhibit
if offered.
e. Need for Specific Objections —
A successful objection is usually specific. The
lawyer who merely says “I objectu or who uses the boilerplate
recitation of “incompetent, irrelevant and immaterial” for every
objection has little chance of persuading the judge that a
particular question or answer is improper. Whenever possible,
objections should be accompanied by a reasonably specific
statement of the grounds for them. [ See, e.g. , Fed.R.Evid.
103(a)(1)] A judge cannot be expected to recognize instantly
the particular evidentiary rules applicable to the testimony
and exhibits being offered in a given case. Moreover, the
lawyers have had months to prepare the case for trial and to
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learn the evidentiary questions. Of course, it is a waste
of time to give to the need for reasons for a self—evident
objection. The AU is likely to rule before counsel can do
more than say “I object.”
By making specific objections, a trial lawyer
shows his sensitivity to the need for making a record. Besides
educating the judge on the reason for excluding the evidence,
a specific objection noted in the record makes it easier for
an appellate court to intelligently evaluate the judge’s
action in sustaining or overruling the objection.
Among the situations where a specific objection
usually is necessary to preserve error are the following:
(1) Argumentative question.
(2) Best evidence rule violated.
(3) Compound question.
(4) Hearsay.
(5) Leading question on direct examination.
(6) Parol evidence rule violated.
(7) Privileged communication.
(8) Unresponsive answer.
(9) Witness incompetent.
(10) Inadequate foundation for the introduction
of a writing.
(11) Conclusion of law or fact improperly called
for by the question.
(12) Cross—examination exceeding scope of the
direction examination.
(13) Facts not in evidence assumed in the ques-
tion.
An offer of evidence often consists of several
elements. If only a portion of the offer is objectionable,
opposing counsel should identify these parts to the judge,
who may or may not bother sorting out the admissible from the
inadmissible. Offering counsel should be prepared to break
apart the evidence and to offer the evidence in a segmented
fashion so that objections and rulings can be made in an or-
derly manner. One way to accomplish this is by separately
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tagging or marking each page or item of a multi—paged or
multi—faceted exhibit.
f. Continuous Objections —
Where similar evidence (that opposing counsel
considers inadmissible) is repeatedly offered, the judge
usually will permit a single objection to serve as a con-
tinuing objection to the line of questioning or type of
evidence. If opposing counsel’s objection to the first
of a string of offers of similar evidence is sustained, he
still must object to each subsequent offer. If his initial
objection is overruled, however, the judge may allow a
continuing objection in order to conserve time. - To avoid
any confusion, when additional evidence of the same type
is later offered, opposing counsel again should mention
that his earlier objection still applies. Failing to
object to an inadmissible item of evidence does not rule
out objecting successfully to later efforts to offer more
of the same.
g. Importance of a Ruling —
It is the obligation of objecting counsel to get
an definite, on—the—record ruling on an objection. No
inferences can be made from the judge’s silence. Sometimes,
when the lawyers and the judge engage in a lengthy and complex
discussion of the merits of an objection, the judge can forget
to make a formal ruling. If the judge does forget, objecting
counsel should politely remind him of this fact. A formal
ruling is necessary in order to preserve the point for appeal.
h. Offer of Proof —
(1) Offer of Evidence vs. Offer of Proof:
The “offer” is the last step in the intro-
duction of evidence. The meaning of the word “offer”
and phrase “offer of evidence” is clear when thinking in
terms of tangible evidence, such as a document. For
example, the proponent of a writing, after first giving
the judge and opposing counsel the chance to examine
the exhibit (if they are not already familiar with it as
a consequence of prehearing procedures), will have it
marked for identification. Offering counsel will then
hand the exhibit to its sponsoring witness on the stand
and pose questions aimed at authenticating the writing.
When finished, the lawyer will hand the exhibit to the
judge and say: “Your Honor, I now offer in evidence
what has been marked EPA Exhibit 1 for Identification.”
The so—called “offer of proof” occurs be-
fore or during an offer of evidence, with or without a
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witness on the stand, and with or without an objection
pending. An “offer of proof” is essentially a preview
of upcoming testimony or other evidence.
(2) Offer of Proof During Oral Testimony:
The need for an offer of proof usually
occurs during the examination of a witness on the stand.
The lawyer poses a question to his witness in an effort
to elicit testimony; the testimony may be valuable for
its own sake or because it lays the foundation for the
introduction of tangible evidence. If opposing counsel
objects, and the judge sustains the objection, the exam-
ining lawyer must make an offer of proof unless he is
prepared to concede his opponent’s objection.
The offer of proof allows the judge to
make a more informed ruling on the objection and, where
the ruling may be erroneous, preserves the point for
review by the Administrator or by a reviewing court.
Without an explicit offer of proof, the Administrator
or the court may not have any way of knowing whether
the AU’s ruling was correct. Equally important, there
will be no sure way of knowing whether the loss of the
excluded evidence was prejudicial to the introducing
party’s case; one can hardly weigh the importance of
rejected evidence without knowing what that evidence
would have been. The AU cannot refuse counsel an
opportunity to make a proper offer of proof. [ Sl24.85
(c) (3)]
Ordinarily, the lawyer should make an offer
of proof during a witness’s testimony immediately after
the adverse ruling that cut off the witness’s response.
Under Section 124.85(c)(3), the offer of proof for excluded
oral testimony is a “brief statement on the record describ-
ing the nature of the evidence excluded.” The regulation,
however, does not say whether the “statement” must be
made “through the witness” or by counsel. If the judge
rules that the witness must make the statement, examining
counsel can examine the witness through the usual question—
and—answer method [ See Fed.R.Evid. 103(b)] or he can elicit
a response in a narrative fashion.
If the judge allows (or prefers) a “lawyer
offer,” examining counsel’s offer of proof may consist
of an on—the—record statement to the court showing what
the witness’s answer would have been. The lawyer’s state-
ment should show that the anticipated response from the
witness could reasonably be expected to affect the findings
of fact in his favor. The “lawyer offer” begins after
opposing counsel objects to a question posed to a witness
on the stand, and after the judge sustains the objection.
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Examining counsel, to make the record, might say to the
judge: “Your Honor, through this witness we offer to
prove . . . .“ Or he may say, “The witness, were he per-
mitted to answer the last question, would have testified
(3) Offer of Proof with No Witness:
This kind of offer covers situations where
documentary evidence is offered without a sponsoring
witness or where, prior to any testimony by a witness
and prior to any explicit objection or ruling, offering
counsel has a number of witnesses available (but not at
the hearing) to establish a line of facts, but the judge’s
rulings have strongly suggested that he would exclude
their testimony.
(a) Tangible offer —
Any lawyer who knows how to mark, authenticate
or identify, and offer into evidence an item of tangible
evidence already knows how to make an offer of proof of
the exhibit’s contents following opposing counsel’s suc-
cessful objection to its admissibility. The proponent
of the rejected exhibit need only hand it to the court
reporter for inclusion in the trial record. Counsel’s
only additional task may be to state for the record the
purpose of the evidence, if any possibility exists that
its function is unclear. He also may want the record
to reflect the judge’s reasons for rejecting the exhibit.
An offer of tangible proof that cominingles
admissible with inadmissible matter is not a good offer
and should be rejected in its entirety; the inadmissible
portions must be omitted from the offer. The obligation
to screen out inadmissible matters belongs to the lawyer
for the offering party.
Counsel must specify what parts of a writing
or group of writings are included in his offer of proof.
Ordinarily, it is not enough for a lawyer to make a gen-
eral representation that all objectionable parts will be
deleted. Where an offer of a writing has been rejected,
the sponsoring lawyer cannot later insist that he offered
only its receivable portions unless he in fact designated
them explicitly at the trial. When a writing is offered
without such designations, judges usually presume that
the entire exhibit is offered.
(b) Waiting witnesses —
Counsel will make an offer of proof when he
cannot be sure how the judge will treat his proposed
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evidence and when he wants to make a record without first
going to the expense and inconvenience of summoning and
examining the witnesses involved.
(4) Content of Offer:
The offering party must include in his
offer everything necessary to support the admissibility
of the proposed evidence. If, for some reason, a lawyer
cannot show admissibility until a subsequent time during
the trial, the offer should be renewed at that time.
Offering counsel then may be faced with showing that
the offered evidence would not be cumulative.
An offer of proof must be specific, not
merely stating ultimate facts that might be approprate in
a pleading. While an offer can be a summary of proposed
evidence, it must be cast in terms of evidentiary facts.
(5) Renewing the Offer of Proof:
Sometimes a particular offer of proof must
be made more than once. And some offers must be renewed,
as when an offer is ruled premature because, for example,
some element of its foundation is missing or because it
has been made during the wrong stage of the trial. A
lawyer must renew his offer after having adduced addi-
tional evidence by way of an essential predicate. Other-
wise, the judge might treat the earlier offer as having
been abandoned.
The need to renew an offer of proof after
the taking of additional evidence can be avoided if, in
the original offer, counsel is willing to connect up the
offered evidence with other testimony that will render
the offered evidence material.
7. Managing Exhibita
a. Clarifying and Simplifying Documentary Proof —
Some courts and administrative agencies still
require individual documents to be introduced into evidence
separately, each document being qualified for admissibility
by its custodian or its maker or by a certificate. However,
the clear trend is to permit the summarizing of large numbers
of documents in circumstances where:
(1) Materials are too bulky to transport easily
and to keep in the hearing room.
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(2) Separate introduction into evidence of individual
items might require the testimony of numerous
persons who would be taken away from vital jobs
in government or business. The swearing in and
receipt of testimony from each witness would
waste the court’s time. Even if the documents
are the sort that can be introduced on the auth-
ority of certifications alone and without live
testimony, obtaining certification of numerous
documents can be both costly and expensive to
the litigants.
(3) Documents are vital to the case, but cannot be
understood unless they are summarized.
(4) Method for summarizing the records is an accu-
rate one. The person who made or supervised
the summary would be present to testify on
the accuracy of the summarization, subject to
cross—examination.
(5) Original documents still will be available at
a convenient location if questions are raised
about the accuracy and completeness of the
s umma r i z at ion.
Rule 1006 of the Federal Rules of Evidence describes the pro-
cedure in the Federal courts:
The contents of voluminous writings, record-
ings or photographs which cannot be conveni-
ently examined in court may be presented in
the form of a chart, summary or calculation.
The originals, or duplicates, shall be made
available for examination or copying, or
both, by other parties at a reasonable time
and place. The judge may order that they be
produced in court.
Besides using summaries, stipulations on the admissibility of
documents can help expedite proof. The prehearing conference
is a convenient place to reach an agreement on such a stipula-
tion.
b. Assembling and Charting Documentary Proof —
In preparing for trial, the lawyer should have
obtained not only the documents which he ultimately intends
to introduce, but also all writings that may have any bearing
on the subject. Indeed, it is quite possible that the rele-
vance of some piece of written proof will not become apparent
until the hearing has progressed for a certain period.
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There are two ways in which documentary data
can be assembled: first, by isolating in a single place the
proof on each subject which is intended to be introduced and
keeping in another folder the documents that, although not
contemplated as exhibits, may become important; second, by
arranging in chronological order all documents, whether or
not intended from the beginning as exhibits. The first
system can be used conveniently where there are only a few
documents and the issues to be tried are simple. However,
some documents may cover several subjects and if they are
placed in a folder relating to an individual subject, there
may be a mad scramble when it is time to produce them in
connection with another matter.
Where the issues are complicated, the documents
numerous, and a large mass of written material exists that
may not be introduced in evidence, the easiest way to assem-
ble the documents is by date. Place them in a single file
(although this file may, because of the bulk of material
involved, consist of a number of separate filing envelopes
or even an entire filing cabinet) in chronological order.
Assembling the materials this way is useful because, if your
opponent suddenly calls for the introduction of a document
(until then not received in evidence or marked for identi-
fication) the document can be readily located. Prepare a
chart that briefly states the nature of the document and its
date. Assign a number to each document and a leave a blank
on the chart for showing whether an individual document is
received in evidence or marked for identification. The
following format is typical:
DOCUMENTS
Our Number Exhibit No. Description
During the hearing, whenever any of the documents are received
in evidence or marked for identification, make an appropriate
notation in the second column.
After a document has been marked for identif i—
cation or received in evidence, place it in a separate folder.
At the close of each trial day, prepare an additional chart
consisting of two columns: one will contain the exhibit
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number and the other a description of the document. If the
document was furnished by an opponent and returned to him
after it was marked, note this fact on this second chart.
The original chart of all documents can remain undisturbed
during the trial. By looking at the second column of that
chart, you can see whether a given document was received in
evidence or marked for identification. If it has been so
received or marked, you will know that it has been transferred
to the exhibit file, or, if the document was furnished by an
opponent, that it is in the opponent’s hands.
At the close of each hearing day, it is a good
idea to check with your opponent to assure that every docu-
ment received in evidence or marked for identification on
that day is accounted for, either in your own exhibit file
or in your opponent’s possession. If, during the course
of any day of the trial, some documents were re—used (for
example, during cross—examination) the document check at
the end of that day should keep track of them.
c. Steps in Introducing Documents into Evidence —
The significance of writings often depends on
who prepared them. If a letter of acceptance was dictated and
signed by a corporation’s president, it may be a crucial item
of evidence; if it was signed by someone without any authority
to do so, it won’t have any legal significance. Accordingly, it
often is necessary to make a record on the question of author-
ship. Is the writing truly what it purports to be on its face,
a letter composed and signed by the company president? A writ-
ing, in other words, is not receivable in evidence until it has
been authenticated. [ See generally, Fed.R.Evid., Arts. IX—X.]
The sponsoring lawyer must demonstrate a document’s genuineness
as a preliminary matter. The process works like this:
STEP 1: HAVE EXHIBITS MARKED FOR IDENTIFICATION
As soon as the lawyer decides to elicit testimony
on an exhibit, he should have the exhibit marked for identi-
fication. Usually, this can be done at a prehearing
conference. Where there is no prehearing conference, the
marking of exhibits is done just prior to the presentation
of testimony.
Illustration
COUNSEL: (To the court reporter)
Please mark this EPA Exhibit 28 for
Identification.
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(The court reporter so marks the
exhibit.)
COUNSEL: (To the witness) Mr. Jones,
I ask you to look at what has been
identified as EPA Exhibit 28 for
Identification and to please tell us
whether or not you recognize it.
In the alternative, the witness may first mention the exhi-
bit that the lawyer proposes to introduce. If the sponsor-
ing lawyer has the exhibit, he immediately should have it
marked for identification and show it to the witness in
the manner illustrated above. If the witness has brought
the exhibit to the hearing, the lawyer should ask him to
produce it, have the court reporter mark it for identif i—
cation, and then hand it back to the witness for the
purpose of laying the foundation.
Illustration
COUNSEL: What did you do then?
WITNESS: I prepared a (subject
documentJ.
Q: Do you have that (subject
documentJ with you?
A: Yes, I do.
Q: May I have it please?
(Item or document is produced and presented to the attor-
ney.)
Q: (To the court reporter) Please
mark this (subject documentJ EPA
Exhibit 21 for Identification.
(It is so marked.)
Q: (To the witness) I now show you
EPA Exhibit 21 for Identification
and I ask you whether or not this
is the (subject documentJ to which
you have just referred?
A: Yes, it is.
Be sure to have the exhibit marked for identification be-
fore your witness gives any extended testimony concerning
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it. Where there are large numbers of exhibits, they should
be marked for identification before trial.
STEP 2: LAY THE FOUNDATION FOR ADMISSION OF EXHIBIT
After being returned to the witness, the exhibit
must be properly authenticated by testimony. Testimony
used for laying a foundation must meet the same evidentiary
scrutiny as ordinary testimony. The exhibit must be shown
to be relevant and accurate.
Illustration
COUNSEL: Does EPA Exhibit 21 for
Identification truly and correctly
portray (whateve ’ it was intended
to po .trayJ?
WITNESS: Yes, it does.
STEP 3: SHOW EXHIBIT TO OPPOSING COUNSEL
Give the exhibit to opposing counsel so that
he may decide if he will object to its introduction into
evidence. Some judges require that an attorne ’ show his
opponent an exhibit before handing it to the witness,
while others allow the exhibit to be shown to opposing
counsel after the offer into evidence is made.
Illustration
COUNSEL: (To opposing counsel) Ms.
Goodman, here is a copy of EPA Exhibit
21 for Identification, which I am going
to offer into evidence at this time.
STEP 4: OFFER EXHIBIT INTO EVIDENCE
Ask the judge to admit the exhibit into evidence.
Simultaneously, hand the exhibit to him for his inspection.
Illustration
COUNSEL: At this time, if the
court please, we offer EPA Exhibit
21 for Identification into evidence
as EPA Exhibit 21.
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If both sides of an exhibit are important, then be sure to
offer both sides of the exhibit into evidence.
Illustration
COUNSEL: If the court please, at this
time I wish to offer both the front
and back sides of EPA Exhibit 21 for
Identification into evidence as EPA
Exhibit 21.
If for any reason, only a portion of an exhibit is offered,
the offer should reflect such limitation.
Illustration
COUNSEL: If tife court please, at
this time we offer into evidence as
EPA Exhibit 21 that part of Exhibit
21 for Identification beginning with
the last paragraph on the front of
the document and continuing onto the
back side through the column of
figures that ends halfway down the
page.
Finally, if an exhibit is offered for a limited purpose
(for evidentiary reasons or otherwise), the offer should
reflect this restriction:
Illustration
COUNSEL: At this time we offer EPA
Exhibit 21 for Identification into
evidence as EPA Exhibit 21 for the
sole and limited purpose of estab—
lishing that Redoubtable Corporation
was aware of (whateverJ.
STEP 5: OPPOSING COUNSEL EXAMINES EXHIBIT AND STATES ANY
OBJECTIONS
Offer specific objections to exhibits. Opposing
counsel will ask for a “voir dire” examination if probing
collateral matters is necessary to determine the competency
of the exhibit. The “voir dire” examination also may be
used to challenge the foundation upon which admissibility
is based. This examination takes place before the court
rules on admissibility.
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Sometimes opposing counsel may doubt that a wit-
ness, who is presenting certain records as being “kept in
the ordinary course of business,” is competent to testify
to that fact. In that situation, after the presenting
attorney has “laid the foundation” for the introduction
of the purported business records and offered them into
evidence, opposing counsel may proceed as follows:
Illustration
MR. DANIELS: If the court please,
we would like to have Your Honor
reserve his decision on the admis-
sibility of Respondent’s Exhibit 14
until after we have had an oppor-
tunity to conduct a “voir dire”
examination of this witness.
THE COURT: Very well, you may pro-
ceed.
MR. DANIELS: How long have you
worked at Redoubtable Corporation?
WITNESS: Three months.
Q: So that as a matter of fact you
really do not know for sure whether
these records were made and kept in
the ordinary course of business a
a year ago, is that correct?
A: I can only say that I feel it
is reasonable for me to assume they
were. The filing system of the
company is very reliable.
0: If the court please, we object to
Respondent’s Exhibit 14 being admit-
ted into evidence because this wit-
ness cannot testify with any degree
of certainty that these records were
made and kept as part of the ordinary
course of business. Admitting them
on the basis of his testimony would
violate the hearsay rule.
THE COURT: Objection sustained.
On the other hand, the judge might rule that the lack of
foundation affects the weight, but not the admissibility,
of the records [ S124.85(d)(l)] or that the records are
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admissible because of certain “circumstantial guarantees
of trustworthiness.” [ Fed.R.Evid. 803(24)1 Counsel also
may ask the Court to reserve its ruling on admissibility
until after cross—examination.
Illustration
EPA COUNSEL: I offer EPA Exhibit
10 for Identification into evidence
as EPA Exhibit 10.
OPPOSING COUNSEL: If the court
please, we would like Your Honor
to reserve his decision on the
admissibility of Exhibit 10 until
after we have had an opportunity
to cross—examine as to it.
THE COURT: Very well.
If the court takes the admissibility question under advise-
ment, the sponsoring lawyer should specifically request
on the record that the court rule on that question. If
the judge makes no ruling at all, the point will not be
available for consideration on appeal.
STEP 6: OBTAIN RULING ON ADMISSIBILITY
Illustration
COUNSEL: For the record, if the court
please, may we have a ruling on the
obj ection?
THE COURT: The objection is over-
ruled.
STEP 7: ASK COURT REPORTER TO STRIKE IDENTIFICATION
MARKS FROM EXHIBIT
This will permit imniediate identification of
exhibits that have been admitted into evidence.
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Illustration
COUNSEL: (To the coui’t repoi’ter)
Please show that EPA Exhibit 21 for
Identification has been received
into evidence [ or’, please strike
the identification symbols].
If your opponent has identified an exhibit but has not
offered it into evidence, you may have the exhibit re-
marked and offered into evidence as your own exhibit.
To avoid any inadvertent failure to offer an exhi-
bit into evidence, some attorneys make it a practice to re—offer
all exhibits prior to concluding the presentation of their case.
Illustration
COUNSEL: At this time, if the court
please, in order to make sure the
record shows all of the exhibits as
received in evidence, I wish to re—
offer all of EPA’S Exhibits, Numbers
1 through 46 inclusive, and ask that
they be received in evidence as EPA
Exhibits 1 through 46 inclusive.
THE COURT: The record will show that
those exhibits are received as marked.
Where documents received in evidence are needed
for the current and continuing operation of an organization,
its lawyers may ask to substitute copies of such exhibits for
the originals.
Illustration
OFFERING ATTORNEY: If the court
please, I would like to substitute
photostatic copies of the original
company records which have been re-
ceived into evidence as Redoubtable
Exhibits 12 through 28. I offer
to stipulate that these documents
are true and correct copies of the
originals.
THE COURT: Is there any objection,
Counsel?
OPPOSING ATTORNEY: I’ve had a chance to
compare them, Your Honor. No objection.
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THE COURT: All right.
OFFERING ATTORNEY: It is agreed
then by counsel that any of the
Redoubtable Exhibits 12 through
28 received here in evidence today
may be supplanted, for the purpose
of the record, by photostatic
copies thereof. Is that correct,
Suzanne?
OPPOSING ATTORNEY: Agreed, Emily.
Whenever exhibits are withdrawn and photostatic copies are
substituted, the photostatic copies should also be marked as
exhibits.
Illustration
COUNSEL: Now if the court please,
I would like to withdraw EPA Exhi-
bits 1, 2 and 3 and substitute photo—
static copies of them. I would also
ask that the substituted photostatic
copies be given corresponding numbers.
OPPOSING COUNSEL: Airight. Subject
to the same objection we made as to
the original exhibits.
THE COURT: The substitution will
be allowed. And the objection is noted.
d. Business Records —
Rule 803(6) of the Federal Rules of Evidence sets
out the well—established business records exception to the
hearsay rule. [ See “Reference Materials” of this Manual]
The purposes of this rule are to (i) eliminate the
requirement that the entrant appear to authenticate the record,
(ii) dispense with the necessity of proving each and every book
entry by the person, and (iii) bring the realities of business
and professional practice into the courtroom in a usable form.
While the rule will be liberally construed, this
does not mean any and every business record will be admitted
without careful scrutiny of its reliability. Whenever keeping
or maintaining the record is not within the assigned duties of
the sponsoring witness, the reliability of the business record
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is diminished. Lack of certainty as to who prepared the records
or exact time of preparation affects only the weight of such
evidence, not its admissibility. But a foundation may be inade-
quate and evidence inadmissible when the witness knows nothing
of how the records were kept, except as to what he was told by
others.
Rule 803(6) does not deal clearly with the ad-
missibility of records which are prepared by one company and
kept by another. To be safe, a proper foundation might require
qualified testimony from both firms to vouch for the reliability
of the evidence.
Illustration
COUNSEL: State your name in full, please.
THE WITNESS: ___________________________
Q: What is your occupation or profession?
A: Professional engineer.
Q: How long has that been?
A: Fifteen years.
Q: With what company are you associated?
A: Redoubtable Corporation.
Q: The permit applicant in this case?
A: Yes.
Q: In what capacity are you connected
with Redoubtable?
A: Manager of Environmental Affairs.
Q: How long have you been in that
position?
A: Five years.
Q: As Manager of Environmental Affairs do
you have responsibility for the monitoring
of compliance with pollution control laws
and the records relating to that function?
A: Yes, sir.
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Q: Is it part of the ordinary course of
business for Redoubtable to keep these
books and records?
A: Yes.
Q: What, if any, of those records kept
by Redoubtable have you brought here?
A: (States nature of records brought
to hearing.J
Q: May I have them, please?
A: Yes.
COUNSEL: (To the court reporter) Please
mark these records sequentially Redoubtable
Exhibits 11 through 20 for Identification.
Thank you.
(This is done.)
Q: Are you familiar with the papers which
have just been marked Redoubtable Exhibits
11 through 20 for Identification?
A: Yes, I am.
Q: (To the witness) Have Redoubtable
Exhibits 11 through 20 for Identification
been kept in the usual and ordinary course
of business?
A: Yes, sir.
Q: Are Redoubtable Exhibits 11 through
20 for Identification maintained in any
specific fashion?
A: Yes, they are kept in filing cabinets
and under a records management system I
designed and now supervise.
COUNSEL: If the Court please, we offer
Respondent’s Exhibits 11 through 20 for
Identification in evidence as Respon-
dent’s Exhibits 11 through 20 inclusive.
THE COURT: Any objection, counsel?
OPPOSING COUNSEL: Yes, Your Honor.
There has been no showing who made the
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entries in these books and records,
where that person is, and under whose
supervision and direction the entries
were made. This witness has not testi-
fied to his personal knowledge, if any,
of the information contained in these
records.
THE COURT: The objection will be
overruled. The books and records
are received in evidence and may
be so marked.
COUNSEL: (To the court reporter)
Please show these items received in
evidence as Respondent’s Exhibits
11 through 20 inclusive.
(Note: The foundation for admission of a document as a busi-
ness record need not be entirely based on someone’s testimony.
A judge can presume from the document itself that it was pre-
pared in the regular course of business.J
e. Diagrams, Charts and Drawings —
Charts can be used to translate a mass of sta-
tistics into relatively comprehensible form, and they are
especially helpful in presenting financial information in a
comparative manner.
Diagrams, charts, graphs and drawings are admis-
sible into evidence at the discretion of the AU when they are
shown to be true and correct representations of the things they
purport to portray. Of course, the underlying documents and
source materials must be admissible in their own right. Such
items may be used to demonstrate, illustrate or explain a wit-
ness’s testimony. Ultimately, they must be designed to help
the decision—maker evaluate the evidence.
Illustration
EXAMINING COUNSEL: Where is the plant
located?
WITNESS: Baltimore, Maryland, in the
harbor area known as Sparrow’s Point.
Q: Are you familiar with the plant
and its environs?
A: Yes, I am.
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Q: How did you become familiar with
it?
A: I have visited the plant on at
least six occasions within the past
couple of years and walked through it
with the plant manager as my guide.
I’ve also flown over the plant site
in a helicopter two or three times.
Q: (To the court reporter) Please
mark this item EPA Exhibit 35 for
Identification. Mr. Tulkinghorn, I
hand you EPA Exhibit 35 for Identi-
fication and ask whether you recog-
nize this drawing?
A: Yes, I prepared the drawing.
Q: How accurate is it?
A: Well, it’s not absolutely to
scale, but it does show everything
in the right place.
Q: How did you prepare the drawing?
A: (Explains facts, information and
methods used in preparing the exhibit,
as well as his sources of informa-
tion. J
COUNSEL: (To the court) If the Court
please, I offer EPA Exhibit 35 for
Identification in evidence as EPA
Exhibit 35.
(Shows exhibit to opposing counsel.)
THE COURT: Any objections, counsel?
OPPOSING COUNSEL: No objections,
Your Honor, except the record should
reflect the diagram is not drawn to
scale.
THE COURT: With that limitation noted,
it may be received in evidence and
marked EPA Exhibit 35.
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8. Drafting Proposed Findings of Fact, Conclueion of Law
and Supporting Brief
a. Findings and Conclusions —
Most state and federal administrative agency pro-
cedures require the parties, after the close of the hearing,
to submit proposed findings of fact, conclusions of law and
a supporting brief. [ e.g. , 40 C.F.R. §124.88) In this way,
the AU gets help in preparing the initial decision, which
itself will contain findings and conclusions, as well as
legal reasoning supporting the decision.
Requiring the AU to issue findings of fact and
conclusions of law serves several purposes:
(1) It forces the judge to go thro ugh a careful
analytical process of evaluating the facts in
reaching his decision.
(2) It clarifies exactly what was -decided in the
case, so that the principles of “res judicata”
and “estoppel” may be more accurately applied.
This function of the findings of fact and con-
clusions of law has enormous practical conse-
quences for the prevailing side in cases that
deal with fact situations likely to produce
additional litigation. Accurate and detailed
findings of fact and conclusions of law can
help prevent wasteful re—litigation of points
already decided.
(3) It helps the Administrator and the reviewing
court evaluate the sufficiency of the eviden—
tiary support of the initial decision. Lawyers
for each party will want to protect the integrity
of the favorable decision they hope to receive
by submitting proposed findings of fact and
conclusions of law that provide sound support
for the decision.
Appellate courts usually defer to the AU on mat-
ters concerning the demeanor of witnesses and other intangible
factors that contribute to the overall credibility of witnesses.
To the extent findings are based on such credibility factors,
they are less vulnerable to attack. Thus, the winning lawyer
can help protect the favorable ruling he has received by expli-
citly mentioning in the proposed findings of fact any reliance
he believes the judge should place on the demeanor and credi-
bility of the witnesses.
Neither the Administrator nor the courts, how-
ever, are obliged to defer in any way to the AU’s decision
on the law. Because conclusions of law are more susceptible
to correction by the Administrator or the reviewing court, a
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lawyer who is interested in protecting the initial decision
from reversal should urge the AU to stress in his decision
.how firmly based it is in law as well as in fact. Of course,
the Administrator is free to make whatever different findings
of fact that can be supported by the record.
The findings and conclusions should be drafted so
as to allow the judge maximum flexibility to rearrange, add or
delete points. This can be done by drafting short paragraphs
that are complete in themselves. Some judges like to have
each paragraph on a separate sheet of paper, making it easier
for them to restructure the findings, i.e. , cut and paste up
their decision from material submitted by counsel.
Redundant, unnecessarily elaborate findings of
fact detract from the force of the findings. Completeness,
in the sense of having findings of fact and conclusions of
law that cover all the issues, does not require a microscopic
examination of every nuance in the evidence. To the extent
practicable, annotate the findings of fact with references to
the transcript and exhibits.
b. The Brief —
There is no settled format for a brief in sup-
port of proposed findings and conclusions. The law brief
customarily contains some kind of statement of facts and
the issues of law. Divide the brief into logical segments,
numbered as counsel prefers (usually with Roman numerals),
and be sure to include an index or table of contents.
An excellent way to learn how to write these
briefs, not to mention the findings and conclusions, is to
dig through Agency files for hearings in which highly compe-
tent attorneys participated. Their handiwork can serve as an
authoritative guide.
C. Nonadversary Panel Hearings
1. Background
The non—adversary panel procedures depart from tradi-
tional trial—type adjudications in cases of initial licensing.
Instead of EPA and other parties presenting their respective
cases before a solitary AU, evidence on the permit issues is
heard by a panel of three or more EPA employees who have spe-
cial knowledge or expertise in the subject matter. (In special
circumstances, the panel may include persons who are not EPA
employees.) Panel members may question any person —— attorney
or witness —— who participates in the panel hearing. A presid-
ing officer (who may be either an AU or an attorney employed
by the Agency) will be responsible for assuring that the hear-
ing is conducted fairly.
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Despite its relatively informal nature, the panel
procedures have a number of strict requirements. For one
thing, the request for a panel hearing must contain most of
the substantive items required in an evidentiary hearing
request. And the “evidence” in the hearing will consist
largely of written comments on the draft permit submitted
prior to the hearing itself, unless the presiding officer
specifically allows such comments to be submitted orally at
the hearing. Cross—examination of witnesses by a party is
severely limited.
The purpose of the panel hearing is to allow persons
with scientific or technological expertise to obtain relevant
facts and opinions in a manner most meaningful to reaching an
informed decision. While the panel hearing remains an untested
mechanism for resolving NPDES permit issues, commitment to the
Agency’s fair and efficient disposition of its business means
that the nonadversary hearing will be a key instrument for
demonstrating new vitality in the administrative process.
2. Techniques for E’xpediting Panel Hearings
a. Importance of a Sound Administrative Record —
A comprehensive administrative record will ensure
efficient handling of a nonadversary hearing. The important
distinction between more formal (evidentiary) and less formal
(nonadversary) is the method for making the record to support
final Agency action on a permit. The nonadversary procedure
primarily relies upon written or documentary support for the
permit; the hearing allows the panel, as well as the presiding
officer, to clarify their understanding of the record. Thus,
the presence and participation of the Agency trial staff at
the nonadversary hearing will be less important to the extent
the administrative record has been fully documented so as to
explain why the permit contains what it does.
b. Preparation of Staff Witnesses —
Complicated permits are often written by several
EPA staff members within their respective areas of expertise.
Although each participating staff scientist or engineer should
know his own portion of the permit, it helps when each staff
witness also knows the full range of issues, i.e. , the context
of his testimony.
c. Panels of Witnesses —
When all witnesses on a particular issue are
assembled at the witness table and sworn in as a group, the
panel can get its questions answered easier and quicker than
if each such witness is called in turn.
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d. Applicability of Evidentiary Hearing Techniques —
Since many of the provisions of Subpart E (Evi—
dentiary Hearings) apply to nonadversary panel procedures, it
makes good sense to consult Part B of this Chapter for advice
in preparing for a panel hearing.
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CHAPTER VII
SUBPART H—EVIDENTIARY HEARING PROCESS
OVERVIEW
An evidentiary hearing provides permittees a mechanism for challenging final
individual permits. The hearing is to be conducted by a Presiding Officer, an
Administrative Law Judge. Prehearing conferences may be held for the purposes of
obtaining stipulations, admissions, identifying matters not in issue, and matters
in dispute. Time schedules may also be specified for the hearing and for exchanging
documents and data. The Presiding Officer will also have wide authority during the
hearing, including the authority to examine witnesses, exclude or limit evidence,
and rule on motions and other procedural matters pending before him or her,
e.g., motions for summary judgment.
The limited right of cross—examination in evidentiary hearings is also
explicitly recognized in the new regulations. There is no automatic right of
cross-examination and the proponent of cross—examination has the burden of
justifying its use. In addition 3 all direct and rebuttal testimony must be
submitted in written form unless it can be affirmatively shown that the testi-
mony can only be effectively presented orally.
An essential change in the new procedures is the prohibition against raising
issues at an evidentiary hearing that were not first raised during the comment
period on the draft permit. An exemption from this requirement is provided if
good cause can be shown for the failure to raise the issues earlier.
The regulations also provide for an interlocutory appeal process. This
process allows a party to appeal an order or ruling prior to the issuance of the
VII—l

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initial decision by the Presiding Officer. It is permitted only if the Presiding
Officer, upon motion of a party, certifies the orders or rulings for appeal.
Requests for certification must be filed in writing within 10 days of service of
notice of the order or ruling and must briefly state the grounds for such request.
Certification may be granted only if certain threshold conditions are met.
After the hearing, the parties will have an opportunity to submit proposed
findings of fact, conclusions, and a supporting brief. The Presiding Officer may
allow reply briefs. The Presiding Officer will then review and evaluate these,
together with the hearing record and any interlocutory decisions, in issuing the
initial decision. The initial decision will automatically become effective 30
days. after its service, unless there is a petition for review, or the Administrator
on his or her own motion decides to review the decision.
The decision logic included in this chapter (Figure Vu—i) illustrates
the key events in the evidentiary hearing process. Helpful hints for
expediting the process will also be provided, as well as checklists for
evaluating requests for an evidentiary hearing, sample forms for a proposed
prehearing conference order and a stipulation. Reference should be made to
the section in question for a complete analysis of the procedures.
VII —2

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PROCEDURES FOR INTERLOCUTORY APPEAL [ 124.901
The former practice of deciding legal issues separately through
referral to the Office of General Counsel has been stopped. These
issues will now be subject to normal interlocutory appeals (an appeal
during the hearing). The interlocutory appeal process allows a party
to appeal an order or ruling prior to the issuance of the initial
decision by the Presiding Officer. To invoke this procedure, a party
must, within 10 days of service of notice of the ruling or order, file
a written request to the Presiding Officer for certification of the
orders or rulings for appeal on the record. The request must briefly
state the grounds relied upon. It should be noted that the Office of
General Counsel will continue to play a major role in deciding issues
of law.
The Presiding Officer may certify an order or ruling for appeal
to the Administrator only if all 3 of the following requirements are
satisfied:
(1) The appeal involves an important question
on which there is substantial ground for
difference of opinion;
(2) The appeal is necessary to prevent exceptional
delay, expense, or prejudice to the parties; and
(3) Either an immediate appeal will materially
advance the ultimate completion of the pro-
ceeding or the review after the final order
is issued will be inadequate or ineffective.
The Administrator will decline to hear the appeal if he or she
determines that certification was improperly granted.
Within 30 days of their submission, the Administrator will accept
or decline all interlocutory appeals. If the Administrator takes
no action within this time, the appeal will be considered dismissed.
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If the Presiding Officer declines to certify an order
or ruling for appeal, it may be reviewed by the Administrator
only upon appeal from the initial decision, unless in
exceptional circumstances the Administrator determines upon
motion of a party that to delay review would not be in the
public interest. Such motion must be made within 5 days after
notification of the Presiding Officer’s refusal to certify.
Only in exceptional circumstances may the Presiding Offi-
cer stay the proceeding pending a decision by the Administrator
upon the Presiding Officer’s grant or denial of certification.
Ordinarily, the interlocutory appeal will be decided on
the basis of the submissions made to the Presiding Officer.
The Administrator may, however, allow briefs and oral argu-
ments. Issues of law will be referred to the General Counsel
for determination, subject to the Administrator’s approval.
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HELPFUL HINTS FOR EXPEDITING EVIDENTIARY HEARINGS
“There are no inherently protracted cases, only cases
which are unnecessarily protracted by inefficient
procedures and management.”
(Foreword to Manual for Complex Litigation , Fourth
Edition)
This is a brief compilation of some ideas for managing contested
cases.
Every participant in litigation has his or her own ideas about how to
handle the case, and extensive literature has been produced that discusses
the problems of delayed action, particularly in the administrative processes
of government. In the final analysis, however, it is attention to the case
by all participants, including lawyers, witnesses, technical and para-
professional assistants, and staff support people, that is most likely to
lead to efficiency.
Checklists serve no function or purpose—in fact, a person’s good ideas
about how to staff a case are valueless—unless the checklists are used in ways
that are suited to the individual case and the objectives of the litigation.
Therefore, the following list is nothing more than several ideas that may help
participants to plan the management of cases that are likely to be contested.
• THE MULTIDISCIPLINARY TEAM APPROACH to contested cases is
essential to a successful NPDES matter.
This means that technical professionals who review
applications and prepare draft permits, consul-
tants, technical and scientific support staff,
lawyers, and clerical support and administrative
staffs must all be brought together EARLY and OFTEN
when a particular permit is identified as contro-
versial or is otherwise likely to lead to a request
for hearing. The roles and responsibilities of each
member of the team need to be worked out and agreed
Vu—s

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upon early in the process. One case manager
should be designated as the person through
whom all information about the case is filtered.
This case manager may be any qualified team
member, until the time a request for hearing
is granted. From this point on, the lead staff
lawyer should ordinarily assume the responsi-
bilities of the case manager. When a lawyer
serves as case manager, a qualified technical
staff member should be designated to head up the
technical/scientific effort and should have the
necessary authority to direct and coordinate
all work done by the technical members of the
team.
• FACT SHEETS/STATEMENTS OF BASIS are useful tools for assuring
that all team members have contributed to permit preparation
at an early stage.
Because the Regulations call for a determina-
tion as to whether an extensive Fact Sheet or a
more simple Statement of Basis will be prepared
for every permit , the person responsible for the
determination should call in the entire team to
participate both in the determination and in the
preparation of the appropriate supporting document.
Obviously, less time will be required of the team
if a Statement of Basis is to be prepared. However,
it is no less important that the team participate
in and agree upon the determination that the State-
ment of Basis will be appropriate rather than a more
detailed Fact Sheet. Determinations about which
document will be prepared for a large number of
permits being issued at the same time may be made
by a small committee of qualified staff members.
• WRITTEN TESTIMONY of scientific/technical witnesses, which will
later be required for cases that go to hearing, can be outlined
at the time the Statement of Basis or Fact Sheet is prepared.
If outlines are prepared early, the team will be
able to focus its attention on the issues and on
the support necessary for the case to progress
efficiently.
VII—6

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• THE ADMINISTRATIVE RECORD, now required for every permit, is
a practical arid useful vehicle for ensuring that all documentary
support for the permit is (a) identified and (b) readily avail-
able, before the draft permit is publicly noticed.
The Administrative Record will be assembled
“as—you—go,” using a checklist, to ensure that
the file contains support or citations for each
of the conditions or limitations contained in
the permit.
• PREHEARING CONFERENCES are an integral and essential part of
the hearing process.
At the time a request for hearing is granted,
agency staff should be prepared to go forward
promptly with a request for a prehearing confer-
ence addressed to the Presiding Officer. If the
agency staff is properly prepared, the early
prehearing conference will allow the main issues
in the case to become clear and will permit a
schedule of work to be arranged to move the case
to an early decision. (For additional suggestions,
see “Proposed Prehearing Order” on p. VII—2O.)
• PREPARED TESTIMONY can be assembled far more easily if (a) it
has been outlined early in the process and (b) the entire team
is fully conversant with the issues in the case.
To prepare written testimony for filing before
a hearing is one of the most difficult tasks
facing a participant in a contested case. There
simply are no shortcuts. The task will be
simplified if the team has been assembled early
and has identified the issues for which testimony
needs to be prepared. To circulate draft
testimony “for comment” is not a pleasing notion.
But not having testimony checked (a) to ensure
that the witness has prepared COMPLETE testimony,
i.e., without inadvertent gaps or omissions, or
(b) to “tie in” the testimony with other dependent
witnesses, i.e., as in the case of hypothetical
questions or different aspects of a single issue,
is unthinkable. It should be the function of the
case manager to ensure that prepared testimony is
as complete and accurate as possible. NOTE: The
point being made here is the importance of the
accuracy and completeness of what the witness has
to say. The witness and only the witness has the
final word in what testimony he or she presents,
based upon his or her own personal knowledge,
experience, or expertise.
VII—7

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• DOCUMENTATION for the permit conditions and limitations
must be identified and cited before the draft permit is
issued.
The regulations no longer allow lately
discovered justification for permit condi-
tions. Consequently, any document that will
assist in explaining or justifying a permit
condition must be identified at the time that
the condition is proposed, prepared, or drafted.
VII —8

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[ Designation of Trial Staff
and Decisional Body]
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION A
402 Permit Street
Discharge, OH 95217
)
IN THE MATTER OF: )
)
NATIONAL POLLUTANT DISCHARGE )
REGIONAL ADMINISTRATOR’ S
ELIMINATION SYSTEM EVIDENTIARY )
DESIGNATION OF
HEARING )
AGENCY TRIAL STAFF
)
AND DECISIONAL BODY
)
Permit No. ________________ )
Ajax Manufacturing Company )
Permittee )
In accordance with the provisions of 40 C.F.R. Sections
124.77 and 124.78, I hereby designate the following persons
as members of the Agency Trial Staff and Decisional Body,
respectively, for the above identified proceeding:
Agency Trial Staff
Names
Organizational Affiliations ]
Addresses
Decisional Body
Names
Organizational Affiliations J
L Addresses
Dated Regional Administrator
VII—9

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[ RA’s Order Granting
Evidentiary Hearing and
Notice of Contested!
Uncontested Conditions]
IJNITFD STATES ENVIRONMENTAL PROTECTION AGENCY
REGION A
402 Permit Street
Discharge, OH 95217
Re: Permit No. _______________
Regional Administrator’s Order [ 124.75]
Grantis- g Evidentiary Hearing;and
Notice of Contested and Uncontested [ 124.75(b)]
Permit Terms and Conditions [ l 24 .6 1(e)]
Dear
This will acknowledge your Request for an Evidentiary Hearing
dated __________________, on the above identified permit.
date
This Order constitutes my decision to
grant! grant in part/
_______________________ your Request in accordance with EPA Rules at
deny in part
40 C.F.R. 124.75 and will serve as the specification and notice of
terms and conditions which are contested (and therefore stayed) and
uncontested (and therefore effective) which is required by 40 C.F.R.
124. 61(e).
Referring to your Request for Hearing, I have determined to
grant your request as to the following issues:
[ State issues in language 1
used by requester
VIl—lO

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I have determined to deny your request as to the following issues
for the reasons stated:
State issues in 1anguage 1124.75(d)]
used by requester —
briefly stating reasons
The following terms and conditions of the above identified permit
are contested and the force and effect of these terms and conditions is
stayed pending final Agency action in accordance with 40 C.F.R. l 24 .6l(e)(l):
Specify terms and conditions —
L referring to the final permit
The following terms and conditions of the permit are uncontested and
therefore are enforceable obligations of the discharger. (40 C.F.R. l 2 4.6l(e))
Specify terms and conditions —
L referring to the final permit
Public Notice of this Order granting an Evidentiary Hearing and [ 124.77]
designation of Agency Trial Staff and members of the decisional body
will be issued in the near future.
Dated Regional Administrator
VII —11

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[ Referral to Chief AU]
U”TITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION A
402 Permit Street
Discharge, OH 95217
Honorable
Chief Administrative Law Judge
U.S. Environmental Protection Agency
Washington, D.C. 20460
Re: Evidentiary hearing
NPDES Permit No. __________
Ajax Manufacturing Company
Dear Judge ______________
In accordance with the requirements of 40 C.F.R. Section
124.81, I am referring the above identified proceeding to you
with the request that you assign an Administrative Law Judge
to serve as Presiding Officer.
A copy of the notice of grant of an Evidentiary Hearing
is enclosed. The notice was __________________________ on
____________ 19
Dated Regional Administrator
VII—12

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[ Public Notice of
Evidentiary Hearing]
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION A
402 Permit Street
Discharge, OH 95217
PUBLIC NOTICE OF EVIDENTIARY HEARING [ 124.41(h)]
[ 124. 77]
Permit No. Date of Notice ___________
Name of Permittee
Address of Permittee
This is to give notice that on __________________ the
date
Regional Administrator _____________________________ a request
granted/granted in part
for an Evidentiary Hearing under EPA rules for the above
identified National Pollutant Discharge Elimination System
(NPDES) Permit. The request for hearing, dated ______________
date
was filed by __________________________ _________________________
name of party requesting address of party requesting
Further proceedings involving this Permit will be governed
by EPA’s Rules for Decisionmaking which are found at 40 C.F.R.
Part 124 (published in the Federal Register at 44 F.R. 32854 on
June 7, 1979). Copies of these rules are available for inspection
and copying at the Regional Office.
EPA’s contact person for information regarding this permit [ 124.41
(c) (3)]
and from whom copies of the permit, the statement of basis or
fact sheet and the Regional Administrator’s order granting the
hearing may be obtained is:
Name
Address
Telephone
The administrative record containing all documents relat— [ 124.41
(c) (4) ]
ing to the permit is located at ___________________________
room number and address
VII—13

-------
and is available for public inspection between a.m.
and _______ p.m., Monday through Friday, except holidays.
Section 316(a) information if — [ 124.41(c)
applicable ] (5)]
Public notice of the draft permit wa dated ___________. [ 1 24 .4l(g)
date (1)]
A public hearing on this permit was/was not, held on
date
The purpose of this Evidentiary Hearing is to determine [ l 24 .41(g)
(3)]
whether the permit, as it was issued by EPA, should be changed
in the manner suggested by the Request for Hearing. The case
will be assigned to an EPA Administrative Law Judge for hearing
and preparation of an initial decision. The following is a
summary of rules with regard to the Evidentiary Hearing process:
1. Any person seeking to be a party must file a [ 124.41(h)
request to be admitted as a party to the hearing (4)(i)]
within 15 days of the date of publication of [ 124.79]
this notice, that is, no later than
date
2. Any person seeking to be party may propose [ 124.41(h)
additional material issues of law or fact (4)(ii)]
not already raised by the original requester
or another party.
HOWEVER , under EPA Rules no evidence shall be submitted [ 124.76]
and no issue shall be raised by any party to a hearing
that was not submitted to or raised in the adminis-
trative record unless good cause is shown for the
failure to submit them.
3. The terms and conditions of the permit at issue may [ 124.41(h)
be amended after the evidentiary hearing and any (4)(iii)]
person interested in the permit must request to be
a party in order to preserve any right to appeal
or otherwise contest the final administrative
determination.
4. Parties may be represented by counsel or other [ 124.73(b)]
authorized agent or representative.
VII—14

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5. The Agency trial staff for this proceeding [ 124.41(h) (5)]
is composed of the following persons: [ 124.77]
[ 124. 78]
Names
6. The Decisional Body for this proceeding is [ 124.41(Ii)(5fl
composed of the following persons: [ 124.77]
[ 124.78]
Names
7. The Regional Hearing Clerk is: [ 124.41(h) (6)]
Name
Address
Telephone
8. A request to become a party to these proceedings [ 124.79]
must meet the following requirements:
a) Such requests shall state each legal or [ 124.74]
factual question alleged to be at issue,
and their relevance to the permit decision,
together with a designation of the specific
factual areas to be adjudicated and the
hearing time estimated to be necessary for
that adjudication.
Information supporting the request or
other written document relied upon to
support the request shall be submitted
unless it is already in the administrative
record.
b) The name, mailing address and telephone number
of the person making such request;
c) A clear and concise factual statement of the
nature and scope of the interest of the
requester;
d) The names and addresses of all persons whom
the requester represents; and
e) A statement by the requester that upon motion
of any party or sua sponte by the Presiding
Officer and without cost or expense to any
other party, the requester shall make avail-
able to appear and testify, the following:
i) The requester;
ii) All persons represented by the requester,
and
iii) All officers, directors, employees
consultants and agents of the requester
and the persons represented by the
requester.
VII—15

-------
f) Specific references to the contested
permit terms and conditions, as well
as sQggested revi sed or alternative
permit terms and conditions (not
excluding permit denial) which in
the judgement of the requester, would
be required to implement the purposes
and policies of the Act.
g) In the case of challenges to the
application of control or treatment
technologies identified in the state-
ment of basis or fact sheet, identifi-
cation of the basis for the objection,
and the alternative technologies or
combination of technologies which the
requester believes are necessary to
meet the requirements of the Act.
h) Specific identification of each of the
discharger’s obligations which should
be stayed if the request is granted.
If the request contests more than one
permit term or condition then each
obligation which is proposed to be
stayed must be referenced to the
particular contested term warranting
the stay.
VII—l6

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The following is a general description of the receiving water
and the location of each existing or proposed discharge point and
of the permittee’s activities:
The following is a brief description of the permit
terms and conditions which have been contested and for which
the Evidentiary Hearing has been granted:
[ 124.41
(c)(2)]
[ 124.41
(h) (3)]
VII—l7

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EXPARTE COMMUNICATIONS: [ 124.78]
No interested person outside the EPA or member of
the EPA trial staff shall make or knowingly cause to
be made to any members of the decisional body an ex parte
communication relevant to the merits of the proceedings.
Nor shall the members of the decisional body initiate such
communications themselves.
“EX parte communication” means any communication,
whether written or oral, relating to the merits of the
proceeding between the decisional body and an interested
person outside the EPA or the EPA trial staff where such
communication was not originally filed or stated in the
administrative record or in the hearing. Ex parte
communications do not include:
i) Communications between EPA employees
other than between the EPA trial staff
and the members of the decisional body
ii) Discussions between the decisional body
and either
a) Interested persons outside the EPA; or
b) The EPA trial staff;
If all parties have received prior written notice of such
proposed communications and have been given the opportunity
to be present and participate therein.
iii) Communications between EPA employees including
trial staff but not the decisional body and any
persons outside the EPA including interested
persons outside the EPA.
“Interested person outside the EPA” includes the
permit applicant, any person who filed written comments in
the proceedings, any person who requested the hearing, any
VII—18

-------
person who requested to participate or intervene in the
hearing, any participant or party in the hearing and the
attorney of record for such persons.
FILING AND SERVICE:
An original and one (1) copy of all written sub-
missions relating to an evidentiary hearing filed after
the notice of hearing is published shall be filed with
the Regional Hearing Clerk. The party filing any sub-
mission shall serve a copy of such submission upon the
Presiding Officer and each party of record. Service
shall be by mail or personal delivery.
Every submission shall be accompanied by an acknowl-
edgement of service by the person served or proof of service
in the form of a statement of the date, place, time, and
manner of service and the names of the persons served, certified
by the person who made service. (A signed statement that an
attached list of persons were mailed the submission is suf-
ficient to meet the requirements of this paragraph. Certified
mail is not required).
VII—19

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[ Proposed Prehearing Order]
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION A
402 Permit Street
Discharge, OH 95217
IN THE NATTER OF: )
)
)
NATIONAL POLLUTANT DISCHARGE )
ELIMINATION SYSTEM EVIDENTIARY )
HEARING ) PROPOSED
) PREHEARING ORDER
)
Permit No. _______________
Ajax Manufacturing Company
Permit tee
[ This form is intended to be used by the Agency Trial Staff as
a checklist of those procedural matters which, if followed, will
greatly expedite the hearing. It applies equally in both Evidentiary
and Nonadversary Hearing cases (the latter where a Trial Staff is
designated). This checklist should be consulted as soon as a Request
for Hearing has been granted and should be reviewed regularly during
preparations for the Hearing.
It is appropriate to draft a Proposed Prehearing Order for consider-
ation by the Presiding Officer at the Prehearing Conference. Where
this is done, the Proposed Order should be accompanied by a “Motjon
to Adopt Proposed Prehearing Order” and should be filed and served
before the Prehearing Conference. Such a Motion should state that
the Proposed Order represents the position of the Agency Trial Staff
on the matters contained in the Order which position will be asserted
at the Prehearing Conference.
Obviously, Prehearing Conferences can be streamlined and expedited
if the Presiding Officer and other parties to the Hearing are informed
of the Trial Staff’s position prior to the Conference.
VII—20

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A commendable alternative to this recommended practice is the
submission of a “Proposed Agenda for Prehearing Conference” prior
to the Conference. However, the Proposed Order approach has the
additional benefit of enabling the Trial Staff to come to grips
with its position on the appropriate issues at an early stage and
to articulate the position in a form which may be used conveniently
by the Presiding Officer in preparing the Order required by 124.83(e).]
(e) The Presidr g Officer sh iii p-cp ire [ 124.83(e)]
a written prehearing order reciting the
actions taken at the preheanig
conference and setting forth the
schedule for the hearirg, unless a
transcript has been taken and
accurately reflects these matters The
order shall include a written statement
of the areas of factual agreement and
d.sagreement and of the methods dnd
procedures to be used in de elopmg the
evidence and the respecti e duties of
the parties in connect ,on there with This
order shall control the subsequent
course of the hearing unless modified by
the Presiding Officer for good cduse
shown.
§ 124.83 P eheartng conferences.
(a) The Presiding Officer. suo sponte.
or at the request of any party. may
direct the parties or their attorneys or
duly authorized representatives to
appear at a specified time and place for
one or more conferences before or
during a hearing, or to submit written
proposals or correspond for the purpose
of considering any of the matters set
forth in paragraph (cJ of this section.
[ NOTE: The Proposed Order format is a convenient method for submitting
the “written proposals” called for by 124.83(a).]
(b) The Presiding Officer shall allow a
reasonable period before the hearing
begins for the orderly completion of all
prehearing procedures and for the
submission and disposition of all
preheari.ng motions. Where the
circumstances warrant, the Presiding
Officer shall call a prehearing
conference to inquire Into the use of
available procedures contemplated by
the parties and the time required for
their completion, to establish a schedule
for their completion, and to set a
tentative date for beginning the hearing.
VII—21

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(c) In conferences held, or in
suggestions submitted, under paragraph
(a). the following matters may be
considereth
(1) The necessity or desirability of
simplification, clarification,
amplification or limitation of the issues.
(2) The admission of facts and of the
genuineness of documents, and the
possibility of stipulations with respect to
facts.
(3) The consideration of and ruling
upon objections to the introduction into
evidence at the hearing of any written
testimony, documents, papers. exhibits.
or other submissions proposed h a
party, except that the administrative
record required by § 124 64 shalt be
received in evidence subject to the
pro%islons of * 124 85(d)(2).
Notwithstanding the foregoing, at any
time before the end of the hebring any
party may make, and the Presiding
Officer shall consider and rule upon.
motions to strike testimony or other
evidence other than the administrative
record on the grounds of relevance,
competency or materiality.
(4) The identification of matters of
which official notice may be taken.
(5) The establishment of a schedule
which includes definite or tentative
times for as many of the following as are
deemed necessary and proper by the
Presiding Officer:
(i) The submission of narrative
statements of position on each factual
issue in controversy;
(ii) The submission of written
testimony and documentary evidence
(e g., affidavits, data, studies, reports
and any other type of written material)
in support of such statements; or
(iii) Written requests to any party for
the production of additional
documentation, data, or other
information relevant and material to the
facts in Issue.
(6) The grouping of participants with
substantially like interests for purposes
of eliminating duplicative or repetitive
development of the evidence and
making and arguing motions and
objections.
(7) Such other matters as may
expedite the hearing or aid in the
disposition of the matter.
[ NOTE: Each of the above mentioned 7 items may be addressed
appropriately in a Proposed Prehea’ring Order. In any event,
Counsel ought to be prepared to address each of these issues
(i.e., state a position) at the Prehearing Conference.]
VII—22

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(d) At a prehearmg conference or
within some reasonable time set by the
Presiding Officer, each party shall make
available to all other parties the names
of experts and other witnesses it
expects to call. At its discretion or at the
request of the Presiding Officer, a party
may include a brief narrative summary
of any wnriess’s anticipated testimony.
Copies of any written testimony,
documents, papers, exhibits, or
materials which a party expects to
introduce into evidence, and the
administrative record required by
§ 124.64, shall be marked for
identification as ordered by the
Presiding Officer. Witnesses, proposed
written testimony and other evidence
may be added or amended only upon a
finding by the Presidmg Officer that
good cause existed for failure to
introduce the additional or amended
material within the time specified by the
Presiding Officer. Agency emp!oyeeg
and consultants shall be made available
as witnesses by the Agency to the same
extent that production of such .lt1e scs
is requtrpd of ot) er parties undpr
§ 124 74(c)(4) (See also § 124 85(b) 5))
[ NOTE: Preparation and exchange of witness and exhibit lists
(i.e., lists of exhibits marked for identification) before
the Hearing begins invariably saves hours (and sometimes days)
of valuable hearing time.]
VII—23

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[ Order on Request
For Intervention]
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION A
402 Permit Street
Discharge, OH 95217
IN THE MATTER OF: )
)
NATIONAL POLLUTANT DISCHARGE )
ELIMINATION SYSTEM EVIDENTIARY )
HEARING ORDER ON REQUEST
FOR INTERVENTION
Permit No. __________________ )
Ajax Manufacturing Company )
Permittee )
)
Text should recite facts about the
request — an analysis as to whether
the request meets the requirements
of 124.79 (b) (including the require-
ments of 124.74 and 124.76) and an
order granting/denying the request.
Dated Administrative Law Judge
VII—24

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[ Motion]
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION A
402 Permit Street
Discharge, OFT 95217
IN THE I1ATTER OF: )
)
)
NATIONAL POLLUTANT DISCHARGE )
ELIMINATION SYST 1 EVIDENTIARY )
HEARING ) MOTION FOR
)
)
Permit No. _____________
Ajax Manufacturing Company
Permittee
124.85 MotIons.
(a) Any party c ay make a motion.
(including a motion to dismiss a
particular claim or a contested issue), to
the Presiding Officer about any matter
relating to the proceeding. All motions
shall be filed and served as provided in
124.80 except those ina e on the
record during an oral hearing before the
Presiding Officer.
(b) Within 10 da)s after seruce of any
written motion, any party to the
proceeding may file a response to the
motion. The time for response rna be
shortened to three dais or exter 1 ded for
an additional ten days by the Presiding
Officer for good cause shQwn.
(c) Notwithstanding § 122 15. any
party may file with the Presiding Officer
a motion seeking to apply to the permit
any regulatory or statutory requirement
issued or made available after the
issuance of the permit under § 124 81.
The Presiding Officer sha’l grant any
motion to apply a new statutory
requirement unless he or she finds it
contrary to legislative intent. The
Presiding Officer may grant a motion to
apply a new regulatory requirement
where appropriate to carry out the
purposes of the Act, and wbere no party
would be unduly prejudiced thereby
VII— 25

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[ NOTE: Properly drawn Motions, when based upon carefully considered
points and authorities., may serve key functions.
Motions provide a convenient vehicle for focusing the attention
of the Presiding Officer and the other parties on one or many issues
which arise before the Hearing begins and which, if decided upon before-
hand, will save hearing time. Motions during the Hearing which involve
important issues often occupy time for parties to prepare responses
and to be heard orally. For important controversial issues which can
be identified early (e.g., grouping of parties, consolidation and sever-
ance, summary determination, production of documents) identification
of issues through Motions will save time at the Hearing for the presen-
tation of facts.]
[ NOTE: Memoranda of Points and Authorities in support of a Motion may
be incorporated into the body of the Motion or into a separate Memo-
randum. If included in the body of the Motion, Points and Authorities
should be so labeled. If included in a separate Memorandum, the Memo-
randum should be filed and served with the Motion. The Motion itself
should then refer to the “attached Memorandum.”]
VII—26

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[ Stipulation]
IJNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION A
402 Permit Street
Discharge, OH 95217
IN THE MATTER OF: )
)
NATIONAL POLLUTANT DISCHARGE )
ELIMINATION SYSTEM EVIDENTIARY )
HEARING )
)
)
Permit No. ______________ ) STIPULATION
Ajax Manufacturing Company )
Permittee )
)
It is hereby stipulated by and between the Perinittee and the
Agency Trial Staff in the above identified proceeding that:
1. Permittee hereby withdraws its request for evidentiary
hearing.
2. The permit involved in this proceeding shall be modified
as follows: —
a. Specify changes by using
b carefully drawn amending
language — (e.g., Delete...
c. Substitute ...) referring
to specific conditions of
the permit.
VII—27

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3. This Stipulation shall not bind the Envirc nmental Protection
Agency or have any force or effect or be filed in this proceeding until
approved and signed by the Deputy Assistant Administrator for Water
Enforcement.
Dated by the last signatory hereto: __________________
Date
Ajax Manufacturing Company
By _________________________
Title ______________________
U.S. Environmental Protection Agency
By __________________________________________
Counsel for Agency Trial Staff
Approved: ________________________________
Deputy Assistant Administrator
for Water Enforcement
VII—28

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NPDES EVIDENTIARY HEARINGS
Procedures Followed by Regional Hearing Clerk, Region III
I. Open Case and Establish Files
Regional Hearing Clerk (RHC) receives the original request
for evidentiary hearing (and one copy).
1. If person requesting hearing is other than permittee
and it is not indicated in request whether copy was
served on the permittee, contact requester to ascertain
whether the permittee has been copied.
2. Assign case number by State, using next available
number on case assignment sheet (Exhibit 1). This
sheet is filed at the beginning of the case log book.
3. Send acknowledgment of receipt to requester (Exhibit 2).
4. Complete Items 1 through 15 of the case data form
(Exhibit 3).
5. Type two file labels:
a. for attorney’s file
b. for RHC file (This file will be turned into the
official docket file if the issues are not settled
informally by stipulation.)
6. Put the following in the attorney’s file and give to
appropriate Section Chief for assignment:
a. copy of request
b. copy of acknowledgment
c. case data form (attached to front of folder)
II. Attorney is Responsible for the Following :
1. Designation of Trial Staff and Decisional Body letter
(Exhibit 4). Original goes to RHC file.
2. Order granting hearing. Xeroxed copies of original
go to R I - IC file and attorney case file.
a. Evidentiary Hearing - Exhibit 5a.
b. Panel Hearing - Exhibit 5b.

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—2—
3. Denial of request for evidentiary hearing
(Exhibits 6a-6d).
(Exhibits 6a-6d deal with denial of a hearing request
because the contested term or condition is based upon
state certification. Other denial letters may be
available from the R}IC or must be individually
prepared.)
a. Pennsylvania requests : Send copy of denial to
Maxine Woelfling, Bureau of Regulatory Counsel,
Pennsylvania DER, Room 505 Executive House Building,
Harrisburg 17120.
III. Prepare Public Notice
RHC receives from the attorney the draft public notice,
case data form completed through 16b. and xeroxed copy
of state certification.
1. Type original public notice and one carbon copy.
a. Evidentiary Hearing - Exhibit 7a.
b. Panel Hearing - Exhibit 7b.
2. Complete transmittal memorandum (Exhibit 8), retain
one copy, and send memo with original public notice
to the appropriate Section Chief in Permits Enforcement
Branch.
Permits Enforcement Branch handles the following:
a. Notice is sent to printer postdated two weeks to
allow for printing and mailing.
b. Printer is supplied with addressed labels from
an updated mailing list and handles mailings.
Mailing list is comprised of government offices,
citizens, etc. who have requested the receipt of
public notices.
3. Put copies of public notice and transmittal memo in
RHC file.
4. Enter information from public notice in “Public
Notices” log (Exhibit 9).

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—3—
Distribute Public Notice
(Extra copies of public notice have been returned from
printer.)
1. Distribute the following copies of the public notice
internally:
a. one to attorney per permit involved.
b. one to Mike Chern (31R10).
c. one to appropriate Section Chief in PEB.
2. Mail notice to the following:
a. Two copies to the principal office of the
Municipality or political subdivision affected
by the facility or discharge (Exhibit 10).
b. Two copies to the United States Post Office
serving the premises (Exhibit 11).
c. One copy to permittee and requester, if they
differ. Include:
(1) state certification letter (if appropriate)
(2) Corps of Engineers certification letter (if
appropriate)
d. One copy of notice to each person who filed a
written comment during the comment period (or
made a statement at the public hearing, if any).
e. Request for Assignment of Administrative Law
Judge : One copy to Chief Administrative Law
Judge together with letter from Division Director
requesting assignment of Administrative Law Judge
(AU) (Exhibit 12). Copy to attorney.
(1) When notified that AU has been assigned,
send transmittal letter (Exhibit 13) and
include copies of the following:
(a) permit
(b) request for hearing
(c) granting of request for hearing
(d) designation of agency trial staff and
decisional body
(e) requests to be admitted as parties, if any
(f) granting of requests to be admitted as
parties
Admit Additional Parties
1. RHC gives original request to join to attorney and
retains copy for RHC file.

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—4—
2. Attorney indicates whether request is granted or
denied.
Granted : Type letter (Exhibit 14) and give copy
to attorney.
Denied : Attorney will write letter for Division
Director with copy to RHC.
Granted/Denied in Part : Attorney will write letter
for Division Director with copy to RHC.
VI. Open Official Docket File
1. All yellow (official) copies and other official
documents as shown on Exhibit 15 currently contained
in the attorney’s file must be xeroxed by the
secretary/attorney if s/he wishes to retain a copy
of these documents. These documents must be given
to the RHC at this time for inclusion in the official
docket file.
Vi . Amend Permit Based on Stipulation
1. The evidentiary hearing has been settled informally.
The attorney has prepared the stipulation of settlement
and sends to company for signature. Attorney will
draft individual letter.
2. If State is a party, attorney sends original stipulation
to State (Exhibit 16), retains one copy and records in
“Stipulation of Settlement” tracking log.
3. Original stipulation is then sent to Enforcement
Division Director; retain one copy; record in
“Stipulation” log. (Exhibit 17)
4. Original of executed stipulation is then sent by RHC
to AU (Exhibit 18) ; retain one copy; record in
“Stipulation” log.
5. Copy of entered stipulation is sent to all parties
(Exhibit 19) ; original and one copy to RHC; record
in “Stipulation” log.
a. Pennsylvania cases : Send copy to Maxine Woelfling,
Bureau of Regulatory Counsel, Pennsylvania DER,
Room 505 Executive House Building, Harrisburg 17120.

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—5—
Copy of completed stipulation is sent to PEE (Exhibit 20)
Record in “Stipulation” log.
a. PEB will mail the following to the company by certified
mail:
Step 1 : a. draft permit amendment
b. public notice
Step 2 : a. letter (Exhibit 21)
b. stipulation of settlement
c. permit amendment
RHC retains original Stipulation of Settlement.
VIII. Consolidation of Hearings
1. When more than one request is received for an evidentiary
hearing covering two or more permits, and the attorney
wishes to consolidate the requests, Motion for
Consolidation should be made to the Regional Administrator
or the Presiding Officer with Order for Consolidation
prepared for signature. (Exhibit 22)
2. RHC sends signed Order of Consolidation to parties
(Exhibit 23).
Note : Consolidation by Administrator or PA is not recommended
after the appointment of a Presiding Officer.
Withdrawal of Request for Evidentiary Hearing
1. If form letter can be used, attorney will give RHC
withdrawal request. RHC will prepare letter granting
request for Division Director’s signature (Exhibit 24).
a. Pennsylvania cases : Send copy to Maxine Woelfling,
Bureau of Regulatory Counsel, Pennsylvania DER,
Room 505 Executive House Building, Harrisburg 17120.

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—6—
Transcript of Hearings
1. RHC will arrange for stenographic services and will request
original and two copies of transcript:
a. Original to be retained by RHC.
b. Copy to AU.
c. Copy to attorney.
2. RHC will notify all parties that certified transcript of
proceedings have been filed (Exhibit 25). Any party who
desires a copy may obtain one from the RBC upon payment
of costs.
3. If AU requests stenographic services for a prehearing
conference, RHC will follow Steps 1 and 2 above.
very submission shall be accompanied by an acknowledgment of service
)y the person served or proof of service in the form of a statement
)f the date, place, time, and manner of service and the names of the
e ons served, certified by the person who made service. A signed
?ment that an attached list of persons were mailed the submission
L ufficient to meet these requirements. Certified mail is not
required.

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EXHIBIT 1
NPDES EVIDENTIARY HEARINGS
CASE ASSIGNMENT SHEET
Attorney
Case Number Permit No. Name Assigned

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EXHIBIT 2
,.D S? 4
____ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
1’ c ’ REGION III

6TH AND WALNUT STREETS
PHILADELPHIA PENNSYLVANIA 19106
In reply refer to 3EN——
Re: Company name (if addressee is not permittee)
Evidentiary Hearing No.
NPDES Permit No.
Dear
We have received and hereby acknowledge your request for an
evidentiary hearing pursuant to 40 C.F.R. Part 124, Subpart H.
A decision on the timeliness and adequacy of the request is
pending, and you will be informed in writing when action has
been taken.
Your request for evidentiary hearing has stayed the entire
permit pending the Agency’s decision on your request for
hearing (40 C.F.R. § 124.15(b) (2); 45 Fed. Reg. 33491 —
Nay 19, 1980). That decision will be made by *
and will specify the permit terms which are stayed pending
resolution of the evidentiary hearing and the uncontested
permit terms which will become effective 30 days from the
date of the decision (40 C.F.R. 124.60(c); 45 Fed. Reg.
33495 — May 19, 1980).
If you have any questions, please feel free to call the under-
signed at (215) 597
Sincerely yours,
(Name)
Regional Hearing Clerk
cc: Permittee if perinittee is not requester
sert date which is 60 days from permit issuance.

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EXHIBIT 3
NPDES EVID1 NTIARY HEARING - CASE DATA FORM
1. Case number:____________________
2. Names of attorney/engineer assigned:________________________________
3. Name of company (perinittee):____________________________________
4. Location of company (permittee) including county:____________________
5. Name of requester if different from name of company (permittee):
6. NPDES rmit number:_________________________
a. / / Renewal / / Modification (Check if applicable)
7. / / Major / / Minor
8. II Municipal // Industrial
9. SIC code:_____________________
10. a. Date of original permit application:_____________________________
b. Date(s) of modification request(s):____________________________
c. Date of application for renewal permit:__________________________
11. Date of public notice of draft permit, if any:______________________
12. Close of comment period, if any:_____________________________________
13. Date of permit issuance:___________________________
14. Date permit expires:_______________________________
15. Date of evidentiary hearing request:________________________________
16. Date request II Granted in Full /1 Granted/Denied in Part
/ / Denied ______________________________
a. State certification issues:__________________________
b. Legal issues:______________________________________
17. Date of public notice of evidentiary hearing:________________________
18. Agency trial staff:__________________________________________________
19. Agency decisional body:____________________________________________
20. Hearing issues? a. Compliance schedule: ________
b. Effluent limitations: ________
c. Monitoring, reporting:________
d. Other: ________
21. Name(s) of additional parties requesting to join and date of request:
a._________________________________________
b._______________________________________ ______
c.____________________________________________
22. Date(s) of informal meeting(s) with company:_________
23. Settlement achieved: /1 Yes // No
IF 23 IS YES
24. Date stipulation sent to company:____________________
25. Date stipulation returned by company:_______________
(NEXT STEPS ARE CONTROLLED IN STIPULATION LOG)
26. Date stipulation entered:___________________________
27. Date of revised permit:______________________________
IF 23 IS NO
28. Date of referral to AU:_______
29. Name of AU:__________________
(over)

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—2—
30. Date of Prehearing conference:_____________
31. Date briefs filed:_________________________
32. Date of hearing — Estimated:______________
Actual:_________________
33. Date proposed findings and conclusion filed:
34. Date decision rendered:____________________
35. Appeals taken? If Yes II No
36. If yes, date briefs filed:__________________
37. Date of appeal decision:___________________
38. DATE CASE CLOSED:___________________________
COMMENTS :

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BEFORE THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
N THE MATTER OF
REGION III
Curtis Building
Sixth and Walnut Streets
Philadelphia, Pennsylvania 19106
.
EXHIBIT 4
ERMIT NO. WV-0000841
ORG-WARNER CHENICALS
IVISION,
ORG-WARNER CORPORATION
PERM ITTEE
: ENFORCEMENT DIVISION
: DIRECTOR’S DESIGNATION
OF AGENCY TRIAL STAFF
: AND DECISIONAL BODY
ri accordance with the provisions of 40 C.F.R. Sections
24.77 and 124.78, I hereby designate the following
rsons as members of the Agency Trial Staff and
c 4 tonal Body, respectively, in the above identified
oc eding:
Agency Trial Staff:
Decisional Body:
ited:
JAN 1i19 O
Robert L. Collings
Ray V. Mihailovich
Elo—Kai Ojamaa
The U.S. Environmental
Protection Agency,
Region III,
Enforcement Division,
Sixth and Walnut Streets,
Philadelphia, Pennsylvania, 19106.
Presiding Officer to be appointed by
the Office of
Administrative Law Judge,
U.S. Environmental Protection Agency,
Washington, D.C. 20460
(.1 ( CQv
R. Sarah C pton —
Director, nforcement Division
ATIONAL POLLUTANT DISCHARGE :
LIMINATION SYSTEM EVIDENTIARY:
EARING
.
.
.

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EXHIBIT 5a
___ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION III
6TH AND WALNUT STREETS
PHILADELPHIA. PENNSYLVANIA 19106
In Reply Refer To: 3EN32
JAN 111980
David N. Flannery, Esquire
Love, Wise, Robinson & Woodroe
P.O. Box 951
Charleston, West Virginia 25323
Re: Borg—Warner Chemicals Division
Borg—Warner Corporation
NPDES Permit No. WV—0000841
Case No. WV—154
Dear Mr. Flannery:
I have reviewed your request for an evidentiary hearing in
connection with the above NPDES permit. I find that the
request meets the requirements imposed by 40 C.F.R.
S 124.74, and accordingly, pursuant to 40 C.F.R. § 124.75,
I have determined to grant the evidentiary hearing as to
all the issues presented in your request of October 8,
1979 (see enclosure).
This Order to grant your request will serve as the speci-
fication and notice of terms and conditions which are
contested (and therefore stayed) and uncontested (and
therefore effective) which is required by 40 C.F.R.
S l 2 4.61(e).
The following terms and conditions of the above identified
permit are contested and the force and effect of these
terms and conditions is stayed pending final Agency action:
(1) Under Part 1(A): “Effluent limitations and Moni-
toring Requirements”, the effluent limitations for
Ammonia: 318 kg/day (700 lbs/day) daily average,
636 kg/day (1400 lbs/day) daily maximum.
(2) Under Part III: “Other Requirements”; Bioassay
Test Requirement Procedural Steps (paragraphs 2, 3
and 4). -

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—2—
All other terms and conditions of the permit are uncon-
tested and therefore are enforceable obligations of the
discharger, specifically including the effluent discharge
limitations and monitoring requirements for BOD5, TSS,
Surfactants, Chromium, and temperature and the monitoring
requirement for Ammonia, as well as the pH parameter, the
prohibition on floating solids and visible foam and all
standard permit terms and conditions.
Upon determination of the first legal issue presented,
should the Agency prevail, Borg—Warner will be notified
that, pursuant to 40 C.F.R. S 124.61(e) (6) (iv), it will be
required to comply with the alternate ammonia effluent
limitation of 1407 lbs/day Daily average and 2000 lbs/day
Daily maximum which you proposed pending final resolution
of the ammonia effluent limitation issue.
A copy of the Public Notice of Evidentiary Hearing is
enclosed. We anticipate that after all persons interested
in the matter have filed requests to become parties, the
Office of Administrative Law Judge will set a time and
place for the hearing and for prehearing proceedings.
Please address any inquiries you may have to:
Anne M. Marvel, Regional Hearing Clerk
U.S. Environmental Protection Agency, Region III
6th and Walnut Streets
Philadelphia, Pennsylvania 19106
Telephone: (215) 597—8913
Sincerely yours,
R. Sarah Comp on
Director, Enforcement Division
HEREBY CEPrFY THAT THE W THIt4
IS A T ’J CC’ CT COPY CF 1.
Enclosure: O C FILED
IN r:-’
ATTQRNE( FOR ( 1

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EXHIBIT 5b
‘? ° S 4? E.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION III
6Tk AND WALNUT STREETS
PHILADELPHIA. PENNSYLVANIA 19106
In reply refer to 3EN—--
Re: NPDES Permit No.
Regional Administrator’s Order
Granting Nonadversary Hearing
Dear
This will acknowledge your Request for a Panel Hearing dated
____________________ on the above identified permit.
This Order constitutes my decision to grant/grant in part!
deny in part your Request in accordance with EPA Rules at
40 C.F.R. 124.114.
Referring to your Request for Hearing, I have determined to grant
your request as to the following issues:
(State issues in language used by requester)
I have determined to deny your request as to the following issues
for the reasons stated:
(State issues in language used by requester —
briefly stating reasons)
Public Notice of this Order Granting a Panel Hearing and of
designation of Agency Trial Staff and members of the decisional
body and a statement of the person who will issue the recommended
decision will be issued in the near future.
Sincerely yours,
Director
Enforcement Division

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EXHIBIT 6a
O
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION III
6TH AND WALNUT STREETS
PHILADELPHIA, PENNSYLVANIA 19106
In reply refer to 3EN——
Re: Company name (if addressee is not perinittee)
Evidentiary Hearing No.
NPDES Permit No.
Dear
Enclosed please find a public notice of evidentiary hearing
concerning the above permit.
You will note that not all of the issues raised in your request
are listed for consideration in the hearing process. The issue
not included was omitted because the permit requirement on which
it is based is derived from state certification, given pursuant
to Section 401 of the Federal Water Pollution Control Act. Given
that circumstance, neither the presiding officer nor the Regional
Administrator has jurisdiction under the Act or Regulations to
consider changing that requirement. Your request for a hearing
on that issue is therefore denied.
The only change this Agency can make in that certification—based
requirement to which you have objected, is a change which a
revised state certification letter would permit. Accordingly,
you may wish to raise this matter with appropriate state officials.
If the state determines that a revised certification is appropriate,
this Agency will then consider any request for revision of the subject
permit upon receipt of such revised certification.
Sincerely yours,
(Name)
Director
Enforcement Division
Enclosures:
Public Notice
State Certification Letter

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EXHIBIT 6b
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION III
6TH AND WALNUT STREETS
PHILADELPHIA. PENNSYLVANIA 19106
In reply refer to 3EN——
Re: Company name (if addressee is not perinittee)
Evidentiary Hearing No.
NPDES Permit No.
Dear
Enclosed please find a public notice of evidentiary hearing
concerning the above permit.
You will note that not all of the issues raised in your request
are listed for consideration in the hearing process. Those
issues not included were omitted because the permit requirements
on which they are based are derived from the state certification,
given pursuant to Section 401 of the Federal Water Pollution
Control Act. Given that circumstance, neither the presiding
officer nor the Regional Administrator has jurisdiction under the
Act or Regulations to consider changing those requirements. Your
request for an evidentiary hearing on those issues is therefore
denied.
The only changes this Agency can make in those certification—based
requirements to which you have objected, are changes which a
revised state certification letter would permit. Accordingly,
you may wish to raise these matters with appropriate state
officials.
If the state determines that a revised certification is appropriate,
this Agency will then consider any request for revision of the
subject permit upon receipt of such revised certification.
Sincerely yours,
(Name)
Director
Enforcement Division
Enclosures:
Public Notice
State Certification Letter

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EXHIBIT 6c
g
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION III
6TH AND WALNUT STREETS
PHILADELPHIA. PENNSYLVANIA 19106
In reply refer to 3EN——
Re: Company name (if addressee is not permittee)
NPDES Permit No.
Dear
We have completed our review of your request for an evidentiary
hearing in the above matter. The issue you raise in your request
for a hearing is based on state certification pursuant to Section
401 of the Federal Water Pollution Control Act. Given that
circumstance, neither the presiding officer nor the Regional
Administrator has jurisdiction under the Act or Regulations to
consider changing that requirement. Your request for an evidentiary
hearing is therefore denied.
The only change this Agency can make in that certification—based
requirement to which you have objected, is a change which a
revised state certification letter would permit. Accordingly,
you may wish to raise this matter with appropriate state officials.
If the state determines that a revised certification is appropriate,
this Agency will then consider any request for revision of the subject
permit upon receipt of such revised certification.
Sincerely yours,
(Name)
Director
Enforcement Division
Enclosure:
State Certification Letter

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EXHIBIT 6d
“O
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

REGION III
6TH AND WALNUT STREETS
PHILADELPHIA, PENNSYLVANIA 19106
In reply refer to 3EN——
Re: Company name (if addressee is not perinittee)
NPDES Permit No.
Dear
We have completed our review of your request for an evidentiary
hearing in the above matter. The issues you raise in your
request for a hearing are based on state certification pursuant
to Section 401 of the Federal Water Pollution Control Act.
Given those circumstances, neither the presiding officer nor
the Regional Administrator has jurisdiction under the Act or
Regulations to consider changing those requirements. Your
request for an evidentiary hearing is therefore denied.
The only changes this Agency can make in those certification—
based requirements to which you have objected, are changes
which a revised state certification letter would permit.
Accordingly, you may wish to raise these matters with appro-
priate state officials.
If the state determines that a revised certification is appropriate,
this Agency will then consider any request for revision of the
subject permit upon receipt of such revised certification.
Sincerely yours,
(Name)
Director
Enforcement Division
Enclosure:
State Certification Letter

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EXHIBIT 7a
NATIONAl. POLLUTANT DISCHARGE ELIMINATION SYSTEM
PERMIT PROGRAM
(Section 402 of the Federal Water Pollution Control Act, as amended)
PUBLIC NOTICE
of
EVIDENTIARY HEARING
to
CONSIDER NPDES PERMIT TO DISCHARGE
U. S. ENVIRONMENTAL PROTECTION AGENCY
REGION III
6th & WALNUT STREETS
PHILADELPHIA, PA. 19106
The United States Environmental Protection Agency, Region III, has granted a
request for an evidentiary hearing on the NPDES permit set forth below:
Name and Address of Perinittee
Name and Address of Facility
Where Discharge Occurs
NPDES Application Number
NPDES Permit Number
Date of Issuance of Permit
Public Notice Number
Date Issued
Public Notice of Evidentiary
Hearing
Date Issued
Receiving Waters
Location of Discharge
Name and Address of Person
Requesting Hearing

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—2—
The purpose of this evidentiary hearing is to resolve the issues raised by
the person requesting the hearing. These issues are listed at the end of
this Public Notice. Briefly, the permit terms and conditions being contested
are:
The evidentiary hearing is an administrative proceeding that closely resembles
a court hearing. The Presiding Officer will be an Administrative Law Judge
who will conduct the necessary pre—hearing proceedings, preside at the
hearing, and prepare the initial decision. These proceedings will be governed
by the Environmental Protection Agency Procedures for Decision Making which
are found at 40 C.F.R. Part 124 (published on May 19, 1980, at 45 Fed. Reg.
33484 et Copies of these procedures are available for inspection
and copying at the Regional Office. In addition, rules established in the
Administrative Procedure Act, 5 U.S.C. § 551 will govern at the
evidentiary hearing. The Environmental Protection Agency strongly urges
interested persons to review carefully the above—mentioned Regulations and
Act.
As provided in 40 C.F.R. § 124.79, any person may submit a request to become
a party to this evidentiary hearing within 15 days of the issuance of this
public notice to:
Anne M. Marvel, Regional Hearing Clerk
U. S. Environmental Protection Agency, Region III
6th & Walnut Streets
Philadelphia, Pa. 19106
Telephone: (215) 597—8913
All requests must meet the following requirements:
1. Such requests shall state each legal or factual question
alleged to be at issue, and their relevance to the permit decision,
together with a designation of the specific factual areas to be
adjudicated and the hearing time estimated to be necessary for
that adjudication. Information supporting the request or other
written document relied upon to support the request shall be
submitted unless it is already in the administrative record.
2. The name, mailing address and telephone number of the person
making such request.
3. A clear and concise factual statement of the nature and scope
of the interest of the requester.
4. The names and addresses of all persons whom the requester
represents.
5. A statement by the requester that upon motion of any party or
sua sponte by the Presiding Officer and without cost or expense to
any other party, the requester shall make available to appear and
testify, the following:

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—3—
i) The requester;
ii) All persons represented by the requester; and
iii) All officers, directors, employees, consultants
and agents of the requester and the persons
represented by the requester.
6. Specific references to the contested permit terms and conditions,
as well as suggested revised or alternative permit terms and condi—
tions (not excluding permit denial) which in the judgment of the
requester would be recuired to implement the purposes and policies
of the Act.
7. In the case of challenges to the application of control or
treatment technologies identified in the statement of basis or
fact sheet, identification of the basis for the objection, and
the alternative technologies or combination of technologies which
the requester believes are necessary to meet the requirements of
the Act.
8. Specific identification of each of the discharger’s obligations
which should be stayed if the request is granted. If the request
contests more than one permit term or condition, then each obliga-
tion which is proposed to be stayed must be referenced to the
particular contested term warranting the stay.
An original and one copy of all written submissions relating to an evidentiary
hearing filed after the notice of hearing is published shall be filed with the
Regional Hearing Clerk. The party filing any submission shall serve a copy of
such submission upon the Presiding Officer and each party of record. Service
shall be by mail or personal delivery.
Every submission shall be accompanied by an acknowledgment of service by the
person served or proof of service in the form of a statement of the date,
place, time, and manner of service and the names of the persons served,
certified by the person who made service. (A signed statement that an
attached list of persons were mailed the submission is sufficient to meet
the requirements of this paragraph. Certified mail is not required.)
Any person seeking to be a party may propose additional material issues of
law or fact not already raised by the original requester or another party.
However, under EPA Rules no evidence shall be submitted and no issue shall
be raised by any party to a hearing that was not submitted to or raised in
the administrative record unless good cause is shown for the failure to
submit them.
Parties may be represented by counsel or other authorized agent or
representative.
The terms and conditions of the permit at issue may be amended after the
evidentiary hearing and any person interested in the permit must request to
be a party in order to preserve any right to appeal or otherwise contest the
final administrative determination.

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—4—
The Agency Trial Staff and the Decisional Body for this proceeding, who are
subject to the ex parte communications rule, are:
Agency Trial Staff:
U. S. Environmental Protection Agency, Region III
Enforcement Division
6th & Walnut Streets
Philadelphia, Pa. 19106
Decisional Body: Presiding Officer to be appointed by the Office
of the Administrative Law Judge.
Pursuant to 40 C.F.R. § 124.78, the ex parte communications rule provides
that no interested person or member of the Agency Trial Staff shall communi-
cate, either orally or in writing, about the merits of the proceedings with
any member of the Decisional Body unless all parties have received prior
written notice of such proposed communication and have been given the
opportunity to be present and participate therein or such communication was
originally filed or stated in the administrative record or in the hearing.
Interested persons may obtain further information, request a copy of the
permit and inspect and copy forms and related documents by contacting:
(Name)
Environmental Protection Assistant
(Appropriate Section)
Permits Enforcement Branch
U. S. Environmental Protection Agency, Region III
6th & Walnut Streets
Philadelphia, Pa. 19106
Copies of the public notice and fact sheet are available at no charge at the
United States Environmental Protection Agency, Region III office. Copies of
all other information are available at a cost of 20 cents per page at the
United States Environmental Protection Agency at the same location.
Please bring the foregoing to the attention of the persons who you know
would be interested in these matters.
Legal Issues:
Factual Issues :

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EXHIBIT 7B
NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM
PERMIT PROGRAM
(Section 402 of the Federal Water Pollution Control Act, as amended)
PUBLIC NOTICE
of
PANEL HEARING
to
CONSIDER NPDES PERMIT TO DISCHARGE
U. S. ENVIRONMENTAL PROTECTION AGENCY
REGION III
6th & WALNUT STREETS
PHILADELPHIA, PA. 19106
Name and Address of Perinittee
Name and Address of Facility
Where Discharge Occurs
NPDES Application Number
NPDES Permit Number
Date of Issuance of Permit
Public Notice Number
Date Issued
Public Notice of Panel Hearing
Date Issued
Receiving Waters
Location of Discharge
Name and Address of Person
Requesting Hearing

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—2—
This is to give notice that on ( date ) the Regional Administrator
granted a Request for a Panel Hearing under EPA’s rules for Non—Adversary
Procedures in connection with the above—identified National Pollutant Discharge
Elimination System (NPDES) Permit. The request for hearing dated _____________
was filed by ( name and address of party requesting )
(Or: The hearing in this case is being held by direction of the
Regional Administrator.)
Further proceedings involving this Permit will be governed by EPA’s Rules for
Decisionmaking which are found at 40 C.F.R. Part 124 (published in the Federal
Register at 45 Fed. Reg. 33484 (May 19, 1980). Copies of these rules are
available for inspection and copying at the Regional Office.
EPA’s contact person for information regarding this Permit and from whom copies
of the draft Permit, the statement of basis or fact sheet, and the Regional
Administrator’s Order granting the hearing may be obtained is:
Name
Address
Telephone
The administrative record containing all documents relating to the Permit is
located at room number and address and is available for public inspection
between ____ a.m. and ____ p.m., Monday through Friday, except holidays.
(Section 316(a) information if applicable.)
The purpose of the Panel Hearing is to determine whether the draft Permit, as
prepared by the EPA Staff, should be changed in the manner suggested by the
Request for Hearing.
(Or: Specify the issues identified sua sponte by the R.A.)
An EPA Administrative Law Judge will serve as Presiding Officer for this proceed-
ing and I have determined that the Presiding Officer will prepare the Recommended
Decision in this case.
(Or: The RA will prepare the Recommended Decision in this case.)
(Or: The parties have waived their right to have an Administrative
Law Judge serve as Presiding Officer and _____________________
a lawyer employed by the EPA and without prior connection with
this proceeding will serve as Presiding Officer.)
The following persons will serve as members of the technical panel (Decisional
Body):
Name
Address
Area of Expertise

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—3—
The following EPA employees will provide staff support to the panel but may
not sit as panel members:
Name
Address
I have determined to designate an Agency Trial Staff for this case. The
following persons will serve as Agency Trial Staff:
Name
Address
(Or: I have determined not to designate an Agency Trial Staff
for this case.)
Your attention is directed to the following Rule on Ex Parte Communications:
No interested person outside the EPA or member of the EPA Trial Staff shall
make or knowingly cause to be made to any members of the decisional body an
ex parte communication relevant to the merits of the proceedings. Nor shall
members of the decisional body initiate such communications themselves.
“Ex parte communications” means any communication written or oral relating
to the merits of the proceeding between the decisional body and an interested
person outside the Agency or the Agency Trial Staff where such communication
was not originally filed or stated in the administrative record or in the
hearing. Ex parte communications do not include:
(i) Communications between Agency employees other than between
the Agency Trial Staff and the members of the decisional
body:
(ii) Discussions between the decisional body and either
(A) Interested persons outside the Agency; or
(B) The Agency Trial Staff;
If all parties have received prior written notice of such
proposed communications and have been given the opportunity
to be present and participate therein.
(iii) Communications between Agency employees including Trial
Staff but not the decisional body and any persons outside
the Agency including interested persons outside the Agency.
“Interested person outside the Agency” includes the permit
applicant, any person who filed written comments in the
proceeding, any person who requested the hearing, any -
person who requested to participate or intervene in the
hearing, any participant or party in the hearing and the
attorney of record for such persons.

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—4—
The following is a summary of EPA’s rules which will apply to this non—
adversary proceeding:
(a) Each person desiring to participate shall file a
motion to participate with the Regional Hearing
Clerk no later than ( date )
(Suggest 15 days from notice.)
(b) Each request shall include:
(1) A brief statement of the interest of the
person in the proceeding;
(2) A brief outline of the points to be
addressed;
(3) An estimate of the time required;
(4) The name, mailing address and telephone
number of the person making such request;
(5) A clear and concise factual statement of
the nature and scope of the interest of
the requester;
(6) The names and addresses of all persons
whom the requester represents; and
(7) A statement by the requester that, upon
motion of any party, or sua sponte by
the Presiding Officer and without cost
or expense to any other party, the re-
quester shall make available to appear
and testify, the following:
(i) The requester;
(ii) All persons represented by the
requester; and
(iii) All officers, directors, employees,
consultants and agents of the re-
quester and the persons represented
by the requester.
(8) Specific references to the contested permit
terms and conditions, as well as suggested
revised or alternative permit terms and con-
ditions (not excluding permit denial) which,
in the judgment of the requester, would be
required to implement the purposes and poii—
cies of the Act.

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—5—
(9) If the request is submitted by an organiza-
tion, a non—binding list of the persons to
take part in the presentation.
(c) At least two weeks before the scheduled date of the
hearing, the Presiding Officer will make a hearing
schedule available and will mail it to each person
who has requested to participate.
Cd) All comments on the Draft Permit must be presented
as follows:
(1) No later than 30 days before the scheduled
start of the hearing, that is, no later
than ( date) , each party shall
file all of its comments on the draft permit,
based on information in the administrative
record and any other information which is or
reasonably could have been available to that
person. All comments shall include any
affidavits, studies, data, tests, or other
materials relied upon for making any factual
statements in the comments.
(2)(a) Written comments filed under paragraph (1)
of this section shall constitute the bulk of
the evidence submitted at the hearing. Oral
statements at the hearing should be brief and
in the nature of argument. They should be
restricted either to points that could not
have been made in written comments, or to
emphasizing points which are made in the
comments, but which the participant believes
can be more effectively argued in the hearing
context.
(b) Notwithstanding the foregoing, within two
weeks prior to the deadline specified in
paragraph (a) of this section for the filing
of comments, any party who has filed a re-
quest to participate in the hearing may
move to submit all or part of its comments
orally at the hearing in lieu of submitting
written comments and the Presiding Officer
shall, within one week, grant such motion
if the Presiding Officer finds that such
person will be prejudiced if required to
submit such comments in written form.
(3) Parties to any hearing may submit written
material in response to the comments filed
by other participants under paragraph (1)
of this section at the time they appear
at the panel stage of the hearing.

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—6—
The Regional Hearing Clerk is:
(Name)
Regional Hearing Clerk (3EN——)
U. S. Environmental Protection Agency
6th & Walnut Streets
Philadelphia, Pennsylvania 19106
(215) 597—-———
Filing and Service : An original and one (1) copy of all written submissions
relating to an evidentiary hearing filed after the notice of hearing is
published shall be filed with the Regional Hearing Clerk. The party filing
any submission shall serve a copy of such submission upon the Presiding
Officer and each party of record. Service shall be by mail or personal
delivery.
Every submission shall be accompanied by an acknowledgement of service by
the person served or proof of service in the form of a statement of the
date, place, time, and manner of service and the names of the persons served,
certified by the person who made service.
A signed statement that an attached list of persons were mailed the submission
is sufficient to meet the requirements of this paragraph. Certified mail is
not required.
The following is a general description of the applicant’s activities and
operations which result in the discharge described in the Permit Application:
(Description)
The following is a general description of the receiving water and of the
location of each existing or proposed discharge point:
(Description)
Date:_______________________ ____________________________
Regional Administrator

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EXHIBIT 8
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Region III — 6th & Walnut Sts.
Philadelphia, Pa. 19106
Company name
SUBJECT: Evidentiary Hearing No. DATE:
NPDES Permit No.
FROM: (Name)
Regional Hearing Clerk (3EN30)
TO: (Name)
Chief, (Appropriate Section)
Permits Enforcement Branch (3EN——)
Attached please find the original copy of the public notice on the
subject evidentiary hearing. It is complete except for the date of
issuance, which I understand the Environmental Protection Assistant
will supply.
Please be sure that the names of all persons who connnented on the
draft permit are included in the mailing. Also, copies are required
to go to Federal and State agencies with jurisdiction over fish,
shellfish and wildlife resources and to other appropriate governmental
authorities including any affected State. As this may include more
than the “discharge” state, please have the Environmental Protection
Assistant check with the assigned engineer as to how wide an area
should be covered.
Please provide me with the excess copies of the printed notice as
soon as they are available.
Thank you for your cooperation.
Enclosure
EPA-Il I-013-73-T

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EXHIBIT 9
TRACKING OF PUBLIC NOTICES OF EVIDENTIARY HEARINGS
Docket No. To Printer Company or Municipality Location Date of Notice

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EXHIBIT 10
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION III
6TH AND WALNUT STREETS
PHILADELPHIA, PENNSYLVANIA 19106
In reply refer to 3EN—
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Municipality
Re: Posting of Public Notice for 30—Day Period
(Company name)
NPDES Permit No.
Dear Sir:
We are required by our regulations published as 40 C.F.R. Part 124,
Subpart E in the May 19, 1980 Federal Register , page 33498
to post the attached public notice in the principal office of the
municipality affected by the above—referenced facility or discharge.
We are requesting that you post this notice in a conspicuous place
for a 30—day period.
We appreciate your cooperation in this matter. If you have any
questions, please call the undersigned at (215) 597
Sincerely yours,
(Name)
Regional Hearing Clerk
Enclosure

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EXHIBIT 11
S7%
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION III
6TN AND WALNUT STREETS
PHILADELPHIA, PENNSYLVANIA 19106
In reply refer to 3EN—
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Postmaster
Re: Posting of Public Notice for 30—Day Period
(Company name)
NPDES Permit No.
Dear Sir:
We are required by our regulations published as 40 C.F.R. Part 124,
Subpart E in the May 19, 1980 Federal Register , page 33498 et j.
to post the attached public notice in the post office serving the
premises of the facility or discharge referenced above.
We are requesting that you post this notice in a conspicuous place
in your post office for a 30—day period.
We appreciate your cooperation In this matter. If you have any
questions, please call the undersigned at (215) 597
Sincerely yours,
(Name)
Regional Hearing Clerk
Enclosure

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\ IDS7:l? E IBIT 12
‘ p
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION III
6TH AND WALNUT STREETS
PHILADELPHIA, PENNSYLVANIA 19106
In reply refer to 3EN——
The Honorable _____________________
Chief Administrative Law Judge
U. S. Environmental Protection Agency
401 11 Street, S.W.
Washington, D. C. 20460
Re: Name of permittee
Evidentiary Hearing No.
NPDES Permit No.
Dear Judge
In accordance with the requirements of 40 C.F.R. Section 124.81,
I am referring’ the above identified proceeding to you with the
request that you assign an Administrative Law Judge to serve as
Presiding Officer.
A copy of the notice of grant of an Evidentiary Hearing is
enclosed.
Sincerely yours,
(Name)
Director
Enforcement Division
Enclosure

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EXHIBIT 13
, IO S7
I UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION III
6TH AND WALNUT STREETS
PHILADELPHIA, PENNSYLVANIA 19106
In reply refer to 3EN30
The Honorable
Administrative Law Judge (A—hO)
U. S. Environmental Protection Agency
401 M Street, S.W.
Washington, D. C. 20460
Re: Company name
Evidentiary Hearing No.
NPDES Permit No.
Dear Judge
Subsequent to Judge Penman’s assignment to you of the subject
evidentiary hearing, I am enclosing copies of the following:
(Include only what is applicable)
Permit effective ( date )
Request for evidentiary hearing.
Request for evidentiary hearing granted.
Designation of agency trial staff and decisional body.
Request(s) to be admitted as parties from:
Request(s) to be admitted as parties granted.
Sincerely yours,
(Name)
Regional Hearing Clerk
Enclosures
cc: Parties w/o enclosures

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EXHIBIT 14
#‘ °

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION III
6TH AND WALNUT STREETS
PHILADELPHIA, PENNSYLVANIA 19106
In reply refer to 3EN——
Re: Name of permittee
Evidentiary Hearing No.
NPDES Permit No.
Dear
In accordance with the provisions of 40 C.F.R. Part 124, Subpart E,
published at 45 Fed. Reg. 33500 (May 19, 1980), your request to
join as a party in the above—captioned matter is hereby granted.
As a party of record you will receive notices and invitations to
attend all informal and formal negotiations held prior to the
evidentiary hearing. If the matter results in an evidentiary
hearing, you will, of course, be directly involved in the
proceedings.
If you have any questions relating to any aspect of this matter,
please feel free to call , an attorney in the
Enforcement Division at (215) 597————.
Sincerely yours,
(Name)
Director
Enforcement Division
(Copy to assigned Judge)

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EXHIBIT 15
NPDES EVIDENTIARY HEARINGS
List of essential documents to be included in official file
maintained by Regional Hearing Clerk once case has been
assigned to an ALJ.*
Request
Acknowledgment letter
Denial
Granting of request
Public notice
Certification of posting in post office
Requests to join as party
Denial or granting of request to join
Referral of legal issues
Letter to Penman requesting assignment of AU
Letter of assignment of AU
Order from assigned judge setting prehearing conferences
Motions and briefs exchanged
Transcript, if any
Other official documents relating to preheaning and hearing
Official correspondence between parties and AU
Order setting hearing date
Transcript of hearing
Findings of fact and issues of law
Motions to amend
Regional Administrator’s decision
Appeals to Administrator
Third/Fourth Circuit Appeals
* additional documents may be included at request of attorney
assigned to the case

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EXHIBIT 16
T)
____ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION III
6TH AND WALNUT STREETS
PHILADELPHIA. PENNSYLVANIA 19106
In reply refer to 3EN
(State environmental office)
Re: Company name
Evidentiary Hearing No.
NPDES Permit No.
Dear
Enclosed please find stipulation of settlement for the subject
evidentiary hearing. Please sign in the appropriate place and
return the stipulation to my attention.
Sincerely yours,
(Name)
Attorney
Enforcement Division
Enclosure

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EXHIBIT 17
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Region Ill — 6th & Walnut Sts.
Philadelphia. Pa. 19106
Stipulation of Settlement for (Name)
SUBJECT: Evidentiary Hearing No. DATE:
NPDES Permit No.
FROM: (Name)
Attorney, Legal Branch (3EN——)
TO: (Name)
Director, Enforcement Division (3ENOO)
THRU: Benjamin G. Stonelake, Jr.
Chief, Legal Branch (3EN30)
Attached please find a stipulation resulting from the settlement
of the above company’s evidentiary hearing request.
Please sign in the appropriate place and date the stipulation in
the line provided. Upon your signature, please return the
stipulation to my attention.
Enclosure
EPA-IuI .013-73-T

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EXHIBIT 18
, ØD S7 4

‘UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION III
6TH AND WALNUT STREETS
PHILADELPHIA. PENNSYLVANIA 19106
In reply refer to 3EN——
The Honorable
Administrative Law Judge (A—ho)
U. S. Environmental Protection Agency
401 N Street, S.W.
Washington, D. C. 20460
Re: Company name
Evidentiary Hearing No.
NPDES Permit No.
Dear Judge
Enclosed please find stipulation of settlement for the subject
evidentiary hearing.
Please sign in the appropriate place and date in the line provided.
Upon your signature, please return the stipulation to my attention
so that I may provide conformed copies to all parties of record
and start the permit amendment process.
Sincerely yours,
(Name)
Attorney
Enforcement Division
Enclosure

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EJ 1IBIT 19
iD Sr 4

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION III
6TH AND WALNUT STREETS
PHILADELPHIA. PENNSYLVANIA 19106
In reply refer to 3EN——
Re: Company name, if not addressee
Evidentiary Hearing No.
NPDES Permit No.
Dear
Attached for your files is a copy of the signed stipulation of
settlement for the subject evidentiary hearing.
If you have any questions, please call the undersigned at
(215) 597—8913.
Sincerely yours,
(Name)
Regional Hearing Clerk
Enclosure

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EXHIBIT 20
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Region Ill — 6th & Walnut Sts.
Philadelphia, Pa. 19106
Stipulation of Settlement for (Name)
SUBJECT: Evident iary Hearing No. DATE:
NPDES Permit No.
FROM: (Name)
Attorney, Legal Branch (3EN——)
TO: (Name)
Chief, (Appropriate Section)
Permits Enforcement Branch
Attached please find a signed stipulation* for the subject
evidentiary hearing. Please initiate your Form E and prepare
the appropriate revision.
Thank you.
*If applicable, add “with amended permit pages attached”.
EPA.I II.013-73-T

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O S74 .
EXHIBIT 21
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION III
6TH AND WALNUT STREETS
PHILADELPHIA. PENNSYLVANIA 19106
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Re: NPDES Permit No.
Amendment Number________
(Evidentiary Hearing)
Dear
Enclosed is Amendment Number ____ revising the referenced National
Pollutant Discharge Elimination System Permit previously issues
in accordance with provisions of the Clean Water Act as amended.
This revision is made pursuant to the resolution of Evidentiary
Hearing No. _—EH—_.
The revisions are effective on ___________________, in accordance
with the stipulation of ____________________, resolving the request
for evidentlary hearing previously granted regarding this permit.
Appropriately revised permit pages are enclosed.
Sincerely yours,
(Name)
Director
Enforcement Division
Enclosures
(Enclose amended permit pages and copy of stipulation)

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EXHIBIT 22
This exhibit is set up for the Regional Administrator’s signature.
If applicable, substitute “Presiding Officer”.
BEFORE THE REGIONAL ADMINISTRATOR
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION III
In the Matter of National Pollutant Discharge Elimination
System Permits: (List permit numbers)
Motion for Consolidation
Evidentiary hearing requests by the (Name )
for Permit Numbers
will be granted at the end of the Public Notice Period of
( Date) . (Give reason that requests may be
consolidated.)
Regulation 40 C.F.R. § 124.82 provides that it is within
the discretion of the Regional Administrator to consolidate two
or more proceedings whenever it appears that this will expedite
or simplify consideration of the issues. Given the above inforina—
tion, the Enforcement Division hereby moves that the Regional
Administrator consolidate the above proceedings.
Date (Name)
Attorney
Enforcement Division

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Certificate of Service
I hereby certify that copies of the attached Motion for
Consolidation were served according to the Service List via
United States Mail, postage prepaid, on this day of
19——.
(Attorney’s name)
Service List
Evidentiary Hearing for NPDES Permit Nos.
Jack J. Schrainm
Regional Administrator (3RAOO)
EPA, Region III
6th & Walnut Streets
Philadelphia, Pa. 19106
Regional Hearing Clerk (3————)
EPA, Region III
6th & Walnut Streets
Philadelphia, Pa. 19106
List rest of parties

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BEFORE THE REGIONAL ADMINISTRATOR
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION III
In the Matter of National Pollutant Discharge
Elimination System Permits: (List permit numbers)
Order of Consolidation
By motion of the Enforcement Division, EPA Region III and
pursuant to Regulation 40 C.F.R. § 124.82, I hereby Order the
Consolidation of the Evidentiary Hearings requested by
( Name ) for National Pollutant Discharge
Elimination Permits: ________________________________ as it
appears that this will expedite and simplify consideration
of the issues.
Date Jack J. Schramm
Regional Administrator

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EXHIBIT 23
.. ‘
t)
____ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION III
6TH AND WALNUT STREETS
PHILADELPHIA, PENNSYLVANIA 19106
In reply refer to 3EN——
List names and addresses
of parties
Re: Name of permittee
Evidentiary Hearing No.
NPDES Permit Nos.
Gentlemen:
Attached is Order of Consolidation of the evidentiary hearings
on the above—referenced permits issued by Regional Administrator
Jack J. Schraimn on ( date )
Sincerely yours,
(Name)
Regional Hearing Clerk

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EXHIBIT 24
“O
____ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION II I
6TH AND WALNUT STREETS
PHILADELPHIA, PENNSYLVANIA 19106
In reply refer to 3EN——
NOTE: THIS SHOULD NOT BE USED AFTER
APPOINTMENT OF A PRESIDING OFFICER .
Re: Company name (if applicable)
Evidentiary Hearing No.
NPDES Permit No.
Dear
We are in receipt of your letter of ( date) , withdrawing
your request for an evidentiary hearing on the above—referenced case.
Your request for withdrawal is granted.
Sincerely yours,
(Name)
Director
Enforcement Division

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EXHIBIT 25
ID s 4
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION III
6TH AND WALNUT STREETS
PHILADELPHIA. PENNSYLVANIA 19106
In reply refer to 3EN30
The Honorable
Administrative Law Judge (A—ll0)
U. S. Environmental Protection Agency
401 N Street, S.W.
Washington, D. C. 20460
Re: (Name of permittee)
Evidentiary Hearing No.
NPDES Permit No.
Dear Judge:
In accordance with the provision of 40 C.F.R. § 124.87(c), the
certified transcript of the hearing (or prehearing, whichever
is applicable) held on , 198_, on the above subject
matter was filed on , 198_.
Sincerely yours,
(Name)
Regional Hearing Clerk
INCLUDE CERTIFICATION OF SERVICE AND SEND
COPY OF LETTER AND CERTIFICATION TO ALL
PARTIES .

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