Section 315IAC1-3-11. Evidence

   (a) In addition to IC 4-21.5-3-25, IC 4-21.5-3-26, and IC 5-14-3-4, the following shall apply:

(1) Trade secrets; confidential, commercial, and financial information.

(A) In the presentation, admission, disposition, and use of evidence, the presiding environmental law judge shall preserve the confidentiality of trade secrets and other commercial and financial information to the extent required by statute.

(B) The confidential or trade secret status of any information shall not preclude its being introduced into evidence.

(C) The presiding environmental law judge may make such protective or other orders as may be necessary to consider such evidence in camera, including the preparation of a reviewable order to address questions of law, fact, or discretion which arise out of that portion of the evidence which is confidential or which includes trade secrets.

(2) Verified statements.

(A) The presiding environmental law judge may admit into the record as evidence, in lieu of oral testimony, verified statements of fact or opinion prepared by a witness or his attorney.

(B) The admissibility of a verified statement shall be subject to the same procedural requirements as if the testimony were produced under oral examination.

(C) The verified statement of a witness, whether or not a party, may be used by any party if the presiding environmental law judge finds:

(i) that the witness is dead; or

(ii) that the witness is outside the state, unless it appears that the absence of the witness was procured by the party offering the statement; or

(iii) that, despite due diligence, the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment; or

(iv) that the party offering the statement has been unable to procure the attendance of the witness by subpoena; or

(v) upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of due process and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used; or

(vi) upon agreement of the parties.

(D) If only part of a statement is offered into evidence by a party, an adverse party may require the offering party to introduce any other part which ought in context to be considered with the part introduced, and any party may introduce any other parts.

(E) The presiding environmental law judge shall allow reasonable opportunity to review such statement.

(3) Exhibits.

(A) An original and one (1) copy of each exhibit shall be filed with the presiding environmental law judge for the record; and

(B) A copy of each exhibit shall be furnished to each party or their counsel.

(C) A certified copy of any exhibit may be substituted for the original once admitted into the record.

  (b) Objections concerning the conduct of the hearing shall be stated orally during the hearing.

(1) The party raising the objection shall supply a short statement of the grounds.

(2) Both the objection and any ruling by the presiding environmental law judge on an objection shall be part of the record.

(3) An exception to each objection overruled shall be automatic and is not waived by further participation in the hearing.

  (c) Whenever evidence is excluded from the record, the party offering the evidence may make an offer of proof, which shall be included in the record.

(1) The offer of proof for excluded oral testimony shall consist of a brief statement describing the nature of the evidence excluded.

(2) The offer of proof for excluded documents or exhibits shall consist of the insertion in the record of the documents or exhibits excluded and may include a brief statement describing the nature of the evidence excluded.

(Office of Environmental Adjudication; 315 IAC 1-3-11; filed Jun 2, 1998, 3:47 p.m.: 21 IR 3737; readopted filed Aug 11, 2004, 12:04 p.m.: 28 IR 323; readopted filed May 18, 2010, 1:45 p.m.: 20100602-IR-315100174RFA; readopted filed Apr 25, 2016, 2:08 p.m.: 20160518-IR-315160051RFA)