(a) General. The Administrative Law Judge shall admit all relevant, competent and material evidence, except evidence that is unduly repetitious. Relevant, competent and material evidence may be received at any hearing even though inadmissible under the rules of evidence applicable to judicial proceedings. The weight to be given evidence shall be determined by its reliability and probative value. In all hearings the testimony of witnesses shall be taken orally, except as otherwise provided by these rules or by the Administrative Law Judge. Parties, however, shall have the right to cross-examine a witness who appears at the hearing, provided that such cross examination is not unduly repetitious.

(b) Report of a committee of the National Academy of Sciences. If questions have been submitted to a committee designated by the National Academy pursuant to §164.50(e), the report of the committee, other material that may be required by the Administrator and a list of witnesses and evidence relied upon shall be received into evidence and made part of the record of the hearing. Objections to the report may also be made part of the record and go to the weight of its evidentiary value.

(c) Objections. If a party objects to the admission or rejection of any evidence or the limitation of the scope of any examination or cross-examination, he shall state briefly the grounds for such objection. The transcript shall include any argument or debate thereon, unless the Administrative Law Judge, with the consent of all parties, orders that such argument not be transcribed. The ruling and the reasons given therefor by the Administrative Law Judge on any objection shall be a part of the transcript. An automatic exception to that ruling will follow.

(d) Exhibits. Except where the Administrative Law Judge finds that the furnishing of copies is impracticable, a copy of each exhibit filed with the Administrative Law Judge shall be furnished to each other party. A true copy of an exhibit may, in the discretion of the Administrative Law Judge, be substituted for the original.

(e) Official Notice. Official notice may be taken of Agency proceedings, any matter judicially noticed in the Federal courts, and of other facts within the specialized knowledge and experience of the Agency. Any active party shall be given adequate opportunity to show that such facts are erroneously noticed by presenting evidence to the contrary.

(f) Offer of proof. Whenever evidence is deemed inadmissible, the party offering such evidence may make an offer of proof, which shall be included in the transcript. The offer of proof for excluded oral testimony shall consist of a brief statement describing the nature of the evidence excluded. If the evidence consists of a document or exhibit, it shall be inserted in the record in total. In the event the Environmental Appeals Board decides that the Administrative Law Judge's ruling in excluding the evidence was erroneous and prejudicial, the hearings may be reopened to permit the taking of such evidence, or where appropriate, the Environmental Appeals Board may evaluate the evidence and proceed to a final decision.

(g) Verified statements. With the approval of the Administrative Law Judge, a witness may insert into the record, as his testimony, statements of fact or opinion prepared by him or written answers to interrogatories of counsel, or may submit as an exhibit his prepared statement, provided that such statements or answers must not include legal argument. Before any such statement or answer is read or admitted into evidence the witness shall deliver to the Administrative Law Judge, the reporter, and opposing counsel a copy of such. The admissibility of the evidence contained in such statement shall be subject to the same rules as if such testimony were produced in the usual manner and the witness shall be subject to oral cross-examination on the contents of such statements. Approval for such a procedure may be denied when it appears to the Administrative Law Judge that the memory or the demeanor of the witness is of importance.

[38 FR 19371, July 20, 1973, as amended at 40 FR 25815, June 19, 1975; 57 FR 5343, Feb. 13, 1992]