[Title 40 CFR 22]
[Code of Federal Regulations (annual edition) - July 1, 2002 Edition]
[Title 40 - PROTECTION OF ENVIRONMENT]
[Chapter I - ENVIRONMENTAL PROTECTION AGENCY]
[Subchapter A - GENERAL]
[Part 22 - CONSOLIDATED RULES OF PRACTICE GOVERNING THE ADMINISTRATIVE ASSESSMENT OF CIVIL PENALTIES AND THE REVOCATION/TERMINATION OR SUSPENSION OF PERMITS]
[From the U.S. Government Printing Office]
40PROTECTION OF ENVIRONMENT12002-07-012002-07-01falseCONSOLIDATED RULES OF PRACTICE GOVERNING THE ADMINISTRATIVE ASSESSMENT OF CIVIL PENALTIES AND THE REVOCATION/TERMINATION OR SUSPENSION OF PERMITS22PART 22PROTECTION OF ENVIRONMENTENVIRONMENTAL PROTECTION AGENCYGENERAL
PART 22--CONSOLIDATED RULES OF PRACTICE GOVERNING THE ADMINISTRATIVE ASSESSMENT OF CIVIL PENALTIES AND THE REVOCATION/TERMINATION OR SUSPENSION OF PERMITS--Table of Contents
Subpart A--General
Sec.
22.1 Scope of this part.
22.2 Use of number and gender.
22.3 Definitions.
22.4 Powers and duties of the Environmental Appeals Board, Regional
Judicial Officer and Presiding Officer; disqualification,
withdrawal, and reassignment.
22.5 Filing, service, and form of all filed documents; business
confidentiality claims.
22.6 Filing and service of rulings, orders and decisions.
22.7 Computation and extension of time.
22.8 Ex parte discussion of proceeding.
22.9 Examination of documents filed.
Subpart B--Parties and Appearances
22.10 Appearances.
22.11 Intervention and non-party briefs.
22.12 Consolidation and severance.
Subpart C--Prehearing Procedures
22.13 Commencement of a proceeding.
22.14 Complaint.
22.15 Answer to the complaint.
22.16 Motions.
22.17 Default.
22.18 Quick resolution; settlement; alternative dispute resolution.
22.19 Prehearing information exchange; prehearing conference; other
discovery.
22.20 Accelerated decision; decision to dismiss.
Subpart D--Hearing Procedures
22.21 Assignment of Presiding Officer; scheduling the hearing.
22.22 Evidence.
22.23 Objections and offers of proof.
22.24 Burden of presentation; burden of persuasion; preponderance of
the evidence standard.
22.25 Filing the transcript.
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22.26 Proposed findings, conclusions, and order.
Subpart E--Initial Decision and Motion to Reopen a Hearing
22.27 Initial decision.
22.28 Motion to reopen a hearing.
Subpart F--Appeals and Administrative Review
22.29 Appeal from or review of interlocutory orders or rulings.
22.30 Appeal from or review of initial decision.
Subpart G--Final Order
22.31 Final order.
22.32 Motion to reconsider a final order.
Subpart H--Supplemental Rules
22.33 [Reserved]
22.34 Supplemental rules governing the administrative assessment of
civil penalties under the Clean Air Act.
22.35 Supplemental rules governing the administrative assessment of
civil penalties under the Federal Insecticide, Fungicide, and
Rodenticide Act.
22.36 [Reserved]
22.37 Supplemental rules governing administrative proceedings under the
Solid Waste Disposal Act.
22.38 Supplemental rules of practice governing the administrative
assessment of civil penalties under the Clean Water Act.
22.39 Supplemental rules governing the administrative assessment of
civil penalties under section 109 of the Comprehensive
Environmental Response, Compensation, and Liability Act of
1980, as amended.
22.40 [Reserved]
22.41 Supplemental rules governing the administrative assessment of
civil penalties under Title II of the Toxic Substance Control
Act, enacted as section 2 of the Asbestos Hazard Emergency
Response Act (AHERA).
22.42 Supplemental rules governing the administrative assessment of
civil penalties for violations of compliance orders issued to
owners or operators of public water systems under part B of
the Safe Drinking Water Act.
22.43 Supplemental rules governing the administrative assessment of
civil penalties against a federal agency under the Safe
Drinking Water Act.
22.44 Supplemental rules of practice governing the termination of
permits under section 402(a) of the Clean Water Act or under
section 3008(a)(3) of the Resource Conservation and Recovery
Act.
22.45 Supplemental rules governing public notice and comment in
proceedings under sections 309(g) and 311(b)(6)(B)(ii) of the
Clean Water Act and section 1423(c) of the Safe Drinking Water
Act.
22.46-22.49 [Reserved]
Subpart I--Administrative Proceedings Not Governed by Section 554 of the
Administrative Procedure Act
22.50 Scope of this subpart.
22.51 Presiding Officer.
22.52 Information exchange and discovery.
Authority: 7 U.S.C. 136(l); 15 U.S.C. 2615; 33 U.S.C. 1319, 1342,
1361, 1415 and 1418; 42 U.S.C. 300g-3(g), 6912, 6925, 6928, 6991e and
6992d; 42 U.S.C. 7413(d), 7524(c), 7545(d), 7547, 7601 and 7607(a),
9609, and 11045.
Source: 64 FR 40176, July 23, 1999, unless otherwise noted.
Subpart A--General
Sec. 22.1 Scope of this part.
(a) These Consolidated Rules of Practice govern all administrative
adjudicatory proceedings for:
(1) The assessment of any administrative civil penalty under section
14(a) of the Federal Insecticide, Fungicide, and Rodenticide Act as
amended (7 U.S.C. 136l(a));
(2) The assessment of any administrative civil penalty under
sections 113(d), 205(c), 211(d) and 213(d) of the Clean Air Act, as
amended (42 U.S.C. 7413(d), 7524(c), 7545(d) and 7547(d));
(3) The assessment of any administrative civil penalty or for the
revocation or suspension of any permit under section 105(a) and (f) of
the Marine Protection, Research, and Sanctuaries Act as amended (33
U.S.C. 1415(a) and (f));
(4) The issuance of a compliance order or the issuance of a
corrective action order, the termination of a permit pursuant to section
3008(a)(3), the suspension or revocation of authority to operate
pursuant to section 3005(e), or the assessment of any civil penalty
under sections 3008, 9006, and 11005 of the Solid Waste Disposal Act, as
amended (42 U.S.C. 6925(d), 6925(e), 6928, 6991e, and 6992d)), except as
provided in part 24 of this chapter;
(5) The assessment of any administrative civil penalty under
sections 16(a) and 207 of the Toxic Substances Control Act (15 U.S.C.
2615(a) and 2647);
[[Page 244]]
(6) The assessment of any Class II penalty under sections 309(g) and
311(b)(6), or termination of any permit issued pursuant to section
402(a) of the Clean Water Act, as amended (33 U.S.C. 1319(g),
1321(b)(6), and 1342(a));
(7) The assessment of any administrative civil penalty under section
109 of the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended (42 U.S.C. 9609);
(8) The assessment of any administrative civil penalty under section
325 of the Emergency Planning and Community Right-To-Know Act of 1986
(``EPCRA'') (42 U.S.C. 11045);
(9) The assessment of any administrative civil penalty under
sections 1414(g)(3)(B), 1423(c), and 1447(b) of the Safe Drinking Water
Act as amended (42 U.S.C. 300g-3(g)(3)(B), 300h-2(c), and 300j-6(b)), or
the issuance of any order requiring both compliance and the assessment
of an administrative civil penalty under section 1423(c);
(10) The assessment of any administrative civil penalty or the
issuance of any order requiring compliance under Section 5 of the
Mercury-Containing and Rechargeable Battery Management Act (42 U.S.C.
14304).
(b) The supplemental rules set forth in subparts H and I of this
part establish special procedures for proceedings identified in
paragraph (a) of this section where the Act allows or requires
procedures different from the procedures in subparts A through G of this
part. Where inconsistencies exist between subparts A through G of this
part and subpart H or I of this part, subparts H or I of this part shall
apply.
(c) Questions arising at any stage of the proceeding which are not
addressed in these Consolidated Rules of Practice shall be resolved at
the discretion of the Administrator, Environmental Appeals Board,
Regional Administrator, or Presiding Officer, as provided for in these
Consolidated Rules of Practice.
[64 FR 40176, July 23, 1999, as amended at 65 FR 30904, May 15, 2000]
Sec. 22.2 Use of number and gender.
As used in these Consolidated Rules of Practice, words in the
singular also include the plural and words in the masculine gender also
include the feminine, and vice versa, as the case may require.
Sec. 22.3 Definitions.
(a) The following definitions apply to these Consolidated Rules of
Practice:
Act means the particular statute authorizing the proceeding at
issue.
Administrative Law Judge means an Administrative Law Judge appointed
under 5 U.S.C. 3105.
Administrator means the Administrator of the U.S. Environmental
Protection Agency or his delegate.
Agency means the United States Environmental Protection Agency.
Business confidentiality claim means a confidentiality claim as
defined in 40 CFR 2.201(h).
Clerk of the Board means the Clerk of the Environmental Appeals
Board, Mail Code 1103B, U.S. Environmental Protection Agency, 1200
Pennsylvania Ave., NW., Washington, DC 20460.
Commenter means any person (other than a party) or representative of
such person who timely:
(1) Submits in writing to the Regional Hearing Clerk that he is
providing or intends to provide comments on the proposed assessment of a
penalty pursuant to sections 309(g)(4) and 311(b)(6)(C) of the Clean
Water Act or section 1423(c) of the Safe Drinking Water Act, whichever
applies, and intends to participate in the proceeding; and
(2) Provides the Regional Hearing Clerk with a return address.
Complainant means any person authorized to issue a complaint in
accordance with Secs. 22.13 and 22.14 on behalf of the Agency to persons
alleged to be in violation of the Act. The complainant shall not be a
member of the Environmental Appeals Board, the Regional Judicial Officer
or any other person who will participate or advise in the adjudication.
Consolidated Rules of Practice means the regulations in this part.
Environmental Appeals Board means the Board within the Agency
described in 40 CFR 1.25.
Final order means:
(1) An order issued by the Environmental Appeals Board or the
Administrator after an appeal of an initial decision, accelerated
decision, decision to
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dismiss, or default order, disposing of the matter in controversy
between the parties;
(2) An initial decision which becomes a final order under
Sec. 22.27(c); or
(3) A final order issued in accordance with Sec. 22.18.
Hearing means an evidentiary hearing on the record, open to the
public (to the extent consistent with Sec. 22.22(a)(2)), conducted as
part of a proceeding under these Consolidated Rules of Practice.
Hearing Clerk means the Hearing Clerk, Mail Code 1900, U.S.
Environmental Protection Agency, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460.
Initial decision means the decision issued by the Presiding Officer
pursuant to Secs. 22.17(c), 22.20(b) or 22.27 resolving all outstanding
issues in the proceeding.
Party means any person that participates in a proceeding as
complainant, respondent, or intervenor.
Permit action means the revocation, suspension or termination of all
or part of a permit issued under section 102 of the Marine Protection,
Research, and Sanctuaries Act (33 U.S.C. 1412) or termination under
section 402(a) of the Clean Water Act (33 U.S.C. 1342(a)) or section
3005(d) of the Solid Waste Disposal Act (42 U.S.C. 6925(d)).
Person includes any individual, partnership, association,
corporation, and any trustee, assignee, receiver or legal successor
thereof; any organized group of persons whether incorporated or not; and
any officer, employee, agent, department, agency or instrumentality of
the Federal Government, of any State or local unit of government, or of
any foreign government.
Presiding Officer means an individual who presides in an
administrative adjudication until an initial decision becomes final or
is appealed. The Presiding Officer shall be an Administrative Law Judge,
except where Secs. 22.4(b), 22.16(c) or 22.51 allow a Regional Judicial
Officer to serve as Presiding Officer.
Proceeding means the entirety of a single administrative
adjudication, from the filing of the complaint through the issuance of a
final order, including any action on a motion to reconsider under
Sec. 22.32.
Regional Administrator means, for a case initiated in an EPA
Regional Office, the Regional Administrator for that Region or any
officer or employee thereof to whom his authority is duly delegated.
Regional Hearing Clerk means an individual duly authorized to serve
as hearing clerk for a given region, who shall be neutral in every
proceeding. Correspondence with the Regional Hearing Clerk shall be
addressed to the Regional Hearing Clerk at the address specified in the
complaint. For a case initiated at EPA Headquarters, the term Regional
Hearing Clerk means the Hearing Clerk.
Regional Judicial Officer means a person designated by the Regional
Administrator under Sec. 22.4(b).
Respondent means any person against whom the complaint states a
claim for relief.
(b) Terms defined in the Act and not defined in these Consolidated
Rules of Practice are used consistent with the meanings given in the
Act.
[64 FR 40176, July 23, 1999, as amended at 65 FR 30904, May 15, 2000]
Sec. 22.4 Powers and duties of the Environmental Appeals Board, Regional Judicial Officer and Presiding Officer; disqualification, withdrawal, and
reassignment.
(a) Environmental Appeals Board. (1) The Environmental Appeals Board
rules on appeals from the initial decisions, rulings and orders of a
Presiding Officer in proceedings under these Consolidated Rules of
Practice; acts as Presiding Officer until the respondent files an answer
in proceedings under these Consolidated Rules of Practice commenced at
EPA Headquarters; and approves settlement of proceedings under these
Consolidated Rules of Practice commenced at EPA Headquarters. The
Environmental Appeals Board may refer any case or motion to the
Administrator when the Environmental Appeals Board, in its discretion,
deems it appropriate to do so. When an appeal or motion is referred to
the Administrator by the Environmental Appeals Board, all parties shall
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be so notified and references to the Environmental Appeals Board in
these Consolidated Rules of Practice shall be interpreted as referring
to the Administrator. If a case or motion is referred to the
Administrator by the Environmental Appeals Board, the Administrator may
consult with any EPA employee concerning the matter, provided such
consultation does not violate Sec. 22.8. Motions directed to the
Administrator shall not be considered except for motions for
disqualification pursuant to paragraph (d) of this section, or motions
filed in matters that the Environmental Appeals Board has referred to
the Administrator.
(2) In exercising its duties and responsibilities under these
Consolidated Rules of Practice, the Environmental Appeals Board may do
all acts and take all measures as are necessary for the efficient, fair
and impartial adjudication of issues arising in a proceeding, including
imposing procedural sanctions against a party who without adequate
justification fails or refuses to comply with these Consolidated Rules
of Practice or with an order of the Environmental Appeals Board. Such
sanctions may include drawing adverse inferences against a party,
striking a party's pleadings or other submissions from the record, and
denying any or all relief sought by the party in the proceeding.
(b) Regional Judicial Officer. Each Regional Administrator shall
delegate to one or more Regional Judicial Officers authority to act as
Presiding Officer in proceedings under subpart I of this part, and to
act as Presiding Officer until the respondent files an answer in
proceedings under these Consolidated Rules of Practice to which subpart
I of this part does not apply. The Regional Administrator may also
delegate to one or more Regional Judicial Officers the authority to
approve settlement of proceedings pursuant to Sec. 22.18(b)(3). These
delegations will not prevent a Regional Judicial Officer from referring
any motion or case to the Regional Administrator. A Regional Judicial
Officer shall be an attorney who is a permanent or temporary employee of
the Agency or another Federal agency and who may perform other duties
within the Agency. A Regional Judicial Officer shall not have performed
prosecutorial or investigative functions in connection with any case in
which he serves as a Regional Judicial Officer. A Regional Judicial
Officer shall not knowingly preside over a case involving any party
concerning whom the Regional Judicial Officer performed any functions of
prosecution or investigation within the 2 years preceding the
commencement of the case. A Regional Judicial Officer shall not
prosecute enforcement cases and shall not be supervised by any person
who supervises the prosecution of enforcement cases, but may be
supervised by the Regional Counsel.
(c) Presiding Officer. The Presiding Officer shall conduct a fair
and impartial proceeding, assure that the facts are fully elicited,
adjudicate all issues, and avoid delay. The Presiding Officer may:
(1) Conduct administrative hearings under these Consolidated Rules
of Practice;
(2) Rule upon motions, requests, and offers of proof, and issue all
necessary orders;
(3) Administer oaths and affirmations and take affidavits;
(4) Examine witnesses and receive documentary or other evidence;
(5) Order a party, or an officer or agent thereof, to produce
testimony, documents, or other non-privileged evidence, and failing the
production thereof without good cause being shown, draw adverse
inferences against that party;
(6) Admit or exclude evidence;
(7) Hear and decide questions of facts, law, or discretion;
(8) Require parties to attend conferences for the settlement or
simplification of the issues, or the expedition of the proceedings;
(9) Issue subpoenas authorized by the Act; and
(10) Do all other acts and take all measures necessary for the
maintenance of order and for the efficient, fair and impartial
adjudication of issues arising in proceedings governed by these
Consolidated Rules of Practice.
(d) Disqualification, withdrawal and reassignment. (1) The
Administrator, the Regional Administrator, the members of the
Environmental Appeals Board, the Regional Judicial Officer, or the
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Administrative Law Judge may not perform functions provided for in these
Consolidated Rules of Practice regarding any matter in which they have a
financial interest or have any relationship with a party or with the
subject matter which would make it inappropriate for them to act. Any
party may at any time by motion to the Administrator, Regional
Administrator, a member of the Environmental Appeals Board, the Regional
Judicial Officer or the Administrative Law Judge request that he or she
disqualify himself or herself from the proceeding. If such a motion to
disqualify the Regional Administrator, Regional Judicial Officer or
Administrative Law Judge is denied, a party may appeal that ruling to
the Environmental Appeals Board. If a motion to disqualify a member of
the Environmental Appeals Board is denied, a party may appeal that
ruling to the Administrator. There shall be no interlocutory appeal of
the ruling on a motion for disqualification. The Administrator, the
Regional Administrator, a member of the Environmental Appeals Board, the
Regional Judicial Officer, or the Administrative Law Judge may at any
time withdraw from any proceeding in which he deems himself disqualified
or unable to act for any reason.
(2) If the Administrator, the Regional Administrator, the Regional
Judicial Officer, or the Administrative Law Judge is disqualified or
withdraws from the proceeding, a qualified individual who has none of
the infirmities listed in paragraph (d)(1) of this section shall be
assigned as a replacement. The Administrator shall assign a replacement
for a Regional Administrator who withdraws or is disqualified. Should
the Administrator withdraw or be disqualified, the Regional
Administrator from the Region where the case originated shall replace
the Administrator. If that Regional Administrator would be disqualified,
the Administrator shall assign a Regional Administrator from another
Region to replace the Administrator. The Regional Administrator shall
assign a new Regional Judicial Officer if the original Regional Judicial
Officer withdraws or is disqualified. The Chief Administrative Law Judge
shall assign a new Administrative Law Judge if the original
Administrative Law Judge withdraws or is disqualified.
(3) The Chief Administrative Law Judge, at any stage in the
proceeding, may reassign the case to an Administrative Law Judge other
than the one originally assigned in the event of the unavailability of
the Administrative Law Judge or where reassignment will result in
efficiency in the scheduling of hearings and would not prejudice the
parties.
Sec. 22.5 Filing, service, and form of all filed documents; business confidentiality claims.
(a) Filing of documents. (1) The original and one copy of each
document intended to be part of the record shall be filed with the
Regional Hearing Clerk when the proceeding is before the Presiding
Officer, or filed with the Clerk of the Board when the proceeding is
before the Environmental Appeals Board. A document is filed when it is
received by the appropriate Clerk. The Presiding Officer or the
Environmental Appeals Board may by order authorize facsimile or
electronic filing, subject to any appropriate conditions and
limitations.
(2) When the Presiding Officer corresponds directly with the
parties, the original of the correspondence shall be filed with the
Regional Hearing Clerk. Parties who correspond directly with the
Presiding Officer shall file a copy of the correspondence with the
Regional Hearing Clerk.
(3) A certificate of service shall accompany each document filed or
served in the proceeding.
(b) Service of documents. A copy of each document filed in the
proceeding shall be served on the Presiding Officer or the Environmental
Appeals Board, and on each party.
(1) Service of complaint. (i) Complainant shall serve on respondent,
or a representative authorized to receive service on respondent's
behalf, a copy of the signed original of the complaint, together with a
copy of these Consolidated Rules of Practice. Service shall be made
personally, by certified mail with return receipt requested, or by any
reliable commercial delivery service that provides written verification
of delivery.
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(ii)(A) Where respondent is a domestic or foreign corporation, a
partnership, or an unincorporated association which is subject to suit
under a common name, complainant shall serve an officer, partner, a
managing or general agent, or any other person authorized by appointment
or by Federal or State law to receive service of process.
(B) Where respondent is an agency of the United States complainant
shall serve that agency as provided by that agency's regulations, or in
the absence of controlling regulation, as otherwise permitted by law.
Complainant should also provide a copy of the complaint to the senior
executive official having responsibility for the overall operations of
the geographical unit where the alleged violations arose. If the agency
is a corporation, the complaint shall be served as prescribed in
paragraph (b)(1)(ii)(A) of this section.
(C) Where respondent is a State or local unit of government, agency,
department, corporation or other instrumentality, complainant shall
serve the chief executive officer thereof, or as otherwise permitted by
law. Where respondent is a State or local officer, complainant shall
serve such officer.
(iii) Proof of service of the complaint shall be made by affidavit
of the person making personal service, or by properly executed receipt.
Such proof of service shall be filed with the Regional Hearing Clerk
immediately upon completion of service.
(2) Service of filed documents other than the complaint, rulings,
orders, and decisions. All filed documents other than the complaint,
rulings, orders, and decisions shall be served personally, by first
class mail (including certified mail, return receipt requested,
Overnight Express and Priority Mail), or by any reliable commercial
delivery service. The Presiding Officer or the Environmental Appeals
Board may by order authorize facsimile or electronic service, subject to
any appropriate conditions and limitations.
(c) Form of documents. (1) Except as provided in this section, or by
order of the Presiding Officer or of the Environmental Appeals Board
there are no specific requirements as to the form of documents.
(2) The first page of every filed document shall contain a caption
identifying the respondent and the docket number. All legal briefs and
legal memoranda greater than 20 pages in length (excluding attachments)
shall contain a table of contents and a table of authorities with page
references.
(3) The original of any filed document (other than exhibits) shall
be signed by the party filing or by its attorney or other
representative. The signature constitutes a representation by the signer
that he has read the document, that to the best of his knowledge,
information and belief, the statements made therein are true, and that
it is not interposed for delay.
(4) The first document filed by any person shall contain the name,
address, and telephone number of an individual authorized to receive
service relating to the proceeding. Parties shall promptly file any
changes in this information with the Regional Hearing Clerk, and serve
copies on the Presiding Officer and all parties to the proceeding. If a
party fails to furnish such information and any changes thereto, service
to the party's last known address shall satisfy the requirements of
paragraph (b)(2) of this section and Sec. 22.6.
(5) The Environmental Appeals Board or the Presiding Officer may
exclude from the record any document which does not comply with this
section. Written notice of such exclusion, stating the reasons therefor,
shall be promptly given to the person submitting the document. Such
person may amend and resubmit any excluded document upon motion granted
by the Environmental Appeals Board or the Presiding Officer, as
appropriate.
(d) Confidentiality of business information. (1) A person who wishes
to assert a business confidentiality claim with regard to any
information contained in any document to be filed in a proceeding under
these Consolidated Rules of Practice shall assert such a claim in
accordance with 40 CFR part 2 at the time that the document is filed. A
document filed without a claim of business confidentiality shall be
available to the public for inspection and copying.
(2) Two versions of any document which contains information claimed
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confidential shall be filed with the Regional Hearing Clerk:
(i) One version of the document shall contain the information
claimed confidential. The cover page shall include the information
required under paragraph (c)(2) of this section and the words ``Business
Confidentiality Asserted''. The specific portion(s) alleged to be
confidential shall be clearly identified within the document.
(ii) A second version of the document shall contain all information
except the specific information claimed confidential, which shall be
redacted and replaced with notes indicating the nature of the
information redacted. The cover page shall state that information
claimed confidential has been deleted and that a complete copy of the
document containing the information claimed confidential has been filed
with the Regional Hearing Clerk.
(3) Both versions of the document shall be served on the Presiding
Officer and the complainant. Both versions of the document shall be
served on any party, non-party participant, or representative thereof,
authorized to receive the information claimed confidential by the person
making the claim of confidentiality. Only the redacted version shall be
served on persons not authorized to receive the confidential
information.
(4) Only the second, redacted version shall be treated as public
information. An EPA officer or employee may disclose information claimed
confidential in accordance with paragraph (d)(1) of this section only as
authorized under 40 CFR part 2.
Sec. 22.6 Filing and service of rulings, orders and decisions.
All rulings, orders, decisions, and other documents issued by the
Regional Administrator or Presiding Officer shall be filed with the
Regional Hearing Clerk. All such documents issued by the Environmental
Appeals Board shall be filed with the Clerk of the Board. Copies of such
rulings, orders, decisions or other documents shall be served
personally, by first class mail (including by certified mail or return
receipt requested, Overnight Express and Priority Mail), by EPA's
internal mail, or any reliable commercial delivery service, upon all
parties by the Clerk of the Environmental Appeals Board, the Office of
Administrative Law Judges or the Regional Hearing Clerk, as appropriate.
Sec. 22.7 Computation and extension of time.
(a) Computation. In computing any period of time prescribed or
allowed in these Consolidated Rules of Practice, except as otherwise
provided, the day of the event from which the designated period begins
to run shall not be included. Saturdays, Sundays, and Federal holidays
shall be included. When a stated time expires on a Saturday, Sunday or
Federal holiday, the stated time period shall be extended to include the
next business day.
(b) Extensions of time. The Environmental Appeals Board or the
Presiding Officer may grant an extension of time for filing any
document: upon timely motion of a party to the proceeding, for good
cause shown, and after consideration of prejudice to other parties; or
upon its own initiative. Any motion for an extension of time shall be
filed sufficiently in advance of the due date so as to allow other
parties reasonable opportunity to respond and to allow the Presiding
Officer or Environmental Appeals Board reasonable opportunity to issue
an order.
(c) Service by mail or commercial delivery service. Service of the
complaint is complete when the return receipt is signed. Service of all
other documents is complete upon mailing or when placed in the custody
of a reliable commercial delivery service. Where a document is served by
first class mail or commercial delivery service, but not by overnight or
same-day delivery, 5 days shall be added to the time allowed by these
Consolidated Rules of Practice for the filing of a responsive document.
Sec. 22.8 Ex parte discussion of proceeding.
At no time after the issuance of the complaint shall the
Administrator, the members of the Environmental Appeals Board, the
Regional Administrator, the Presiding Officer or any other person who is
likely to advise these officials
[[Page 250]]
on any decision in the proceeding, discuss ex parte the merits of the
proceeding with any interested person outside the Agency, with any
Agency staff member who performs a prosecutorial or investigative
function in such proceeding or a factually related proceeding, or with
any representative of such person. Any ex parte memorandum or other
communication addressed to the Administrator, the Regional
Administrator, the Environmental Appeals Board, or the Presiding Officer
during the pendency of the proceeding and relating to the merits
thereof, by or on behalf of any party shall be regarded as argument made
in the proceeding and shall be served upon all other parties. The other
parties shall be given an opportunity to reply to such memorandum or
communication. The requirements of this section shall not apply to any
person who has formally recused himself from all adjudicatory functions
in a proceeding, or who issues final orders only pursuant to
Sec. 22.18(b)(3).
Sec. 22.9 Examination of documents filed.
(a) Subject to the provisions of law restricting the public
disclosure of confidential information, any person may, during Agency
business hours inspect and copy any document filed in any proceeding.
Such documents shall be made available by the Regional Hearing Clerk,
the Hearing Clerk, or the Clerk of the Board, as appropriate.
(b) The cost of duplicating documents shall be borne by the person
seeking copies of such documents. The Agency may waive this cost in its
discretion.
Subpart B--Parties and Appearances
Sec. 22.10 Appearances.
Any party may appear in person or by counsel or other
representative. A partner may appear on behalf of a partnership and an
officer may appear on behalf of a corporation. Persons who appear as
counsel or other representative must conform to the standards of conduct
and ethics required of practitioners before the courts of the United
States.
Sec. 22.11 Intervention and non-party briefs.
(a) Intervention. Any person desiring to become a party to a
proceeding may move for leave to intervene. A motion for leave to
intervene that is filed after the exchange of information pursuant to
Sec. 22.19(a) shall not be granted unless the movant shows good cause
for its failure to file before such exchange of information. All
requirements of these Consolidated Rules of Practice shall apply to a
motion for leave to intervene as if the movant were a party. The
Presiding Officer shall grant leave to intervene in all or part of the
proceeding if: the movant claims an interest relating to the cause of
action; a final order may as a practical matter impair the movant's
ability to protect that interest; and the movant's interest is not
adequately represented by existing parties. The intervenor shall be
bound by any agreements, arrangements and other matters previously made
in the proceeding unless otherwise ordered by the Presiding Officer or
the Environmental Appeals Board for good cause.
(b) Non-party briefs. Any person who is not a party to a proceeding
may move for leave to file a non-party brief. The motion shall identify
the interest of the applicant and shall explain the relevance of the
brief to the proceeding. All requirements of these Consolidated Rules of
Practice shall apply to the motion as if the movant were a party. If the
motion is granted, the Presiding Officer or Environmental Appeals Board
shall issue an order setting the time for filing such brief. Any party
to the proceeding may file a response to a non-party brief within 15
days after service of the non-party brief.
Sec. 22.12 Consolidation and severance.
(a) Consolidation. The Presiding Officer or the Environmental
Appeals Board may consolidate any or all matters at issue in two or more
proceedings subject to these Consolidated Rules of Practice where: there
exist common parties or common questions of fact or law; consolidation
would expedite and simplify consideration of the issues; and
consolidation would not adversely affect the rights of parties
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engaged in otherwise separate proceedings. Proceedings subject to
subpart I of this part may be consolidated only upon the approval of all
parties. Where a proceeding subject to the provisions of subpart I of
this part is consolidated with a proceeding to which subpart I of this
part does not apply, the procedures of subpart I of this part shall not
apply to the consolidated proceeding.
(b) Severance. The Presiding Officer or the Environmental Appeals
Board may, for good cause, order any proceedings severed with respect to
any or all parties or issues.
Subpart C--Prehearing Procedures
Sec. 22.13 Commencement of a proceeding.
(a) Any proceeding subject to these Consolidated Rules of Practice
is commenced by filing with the Regional Hearing Clerk a complaint
conforming to Sec. 22.14.
(b) Notwithstanding paragraph (a) of this section, where the parties
agree to settlement of one or more causes of action before the filing of
a complaint, a proceeding may be simultaneously commenced and concluded
by the issuance of a consent agreement and final order pursuant to
Sec. 22.18(b)(2) and (3).
Sec. 22.14 Complaint.
(a) Content of complaint. Each complaint shall include:
(1) A statement reciting the section(s) of the Act authorizing the
issuance of the complaint;
(2) Specific reference to each provision of the Act, implementing
regulations, permit or order which respondent is alleged to have
violated;
(3) A concise statement of the factual basis for each violation
alleged;
(4) A description of all relief sought, including one or more of the
following:
(i) The amount of the civil penalty which is proposed to be
assessed, and a brief explanation of the proposed penalty;
(ii) Where a specific penalty demand is not made, the number of
violations (where applicable, days of violation) for which a penalty is
sought, a brief explanation of the severity of each violation alleged
and a recitation of the statutory penalty authority applicable for each
violation alleged in the complaint;
(iii) A request for a Permit Action and a statement of its proposed
terms and conditions; or
(iv) A request for a compliance or corrective action order and a
statement of the terms and conditions thereof;
(5) Notice of respondent's right to request a hearing on any
material fact alleged in the complaint, or on the appropriateness of any
proposed penalty, compliance or corrective action order, or Permit
Action;
(6) Notice if subpart I of this part applies to the proceeding;
(7) The address of the Regional Hearing Clerk; and
(8) Instructions for paying penalties, if applicable.
(b) Rules of practice. A copy of these Consolidated Rules of
Practice shall accompany each complaint served.
(c) Amendment of the complaint. The complainant may amend the
complaint once as a matter of right at any time before the answer is
filed. Otherwise the complainant may amend the complaint only upon
motion granted by the Presiding Officer. Respondent shall have 20
additional days from the date of service of the amended complaint to
file its answer.
(d) Withdrawal of the complaint. The complainant may withdraw the
complaint, or any part thereof, without prejudice one time before the
answer has been filed. After one withdrawal before the filing of an
answer, or after the filing of an answer, the complainant may withdraw
the complaint, or any part thereof, without prejudice only upon motion
granted by the Presiding Officer.
Sec. 22.15 Answer to the complaint.
(a) General. Where respondent: Contests any material fact upon which
the complaint is based; contends that the proposed penalty, compliance
or corrective action order, or Permit Action, as the case may be, is
inappropriate; or contends that it is entitled to judgment as a matter
of law, it shall file an
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original and one copy of a written answer to the complaint with the
Regional Hearing Clerk and shall serve copies of the answer on all other
parties. Any such answer to the complaint must be filed with the
Regional Hearing Clerk within 30 days after service of the complaint.
(b) Contents of the answer. The answer shall clearly and directly
admit, deny or explain each of the factual allegations contained in the
complaint with regard to which respondent has any knowledge. Where
respondent has no knowledge of a particular factual allegation and so
states, the allegation is deemed denied. The answer shall also state:
The circumstances or arguments which are alleged to constitute the
grounds of any defense; the facts which respondent disputes; the basis
for opposing any proposed relief; and whether a hearing is requested.
(c) Request for a hearing. A hearing upon the issues raised by the
complaint and answer may be held if requested by respondent in its
answer. If the respondent does not request a hearing, the Presiding
Officer may hold a hearing if issues appropriate for adjudication are
raised in the answer.
(d) Failure to admit, deny, or explain. Failure of respondent to
admit, deny, or explain any material factual allegation contained in the
complaint constitutes an admission of the allegation.
(e) Amendment of the answer. The respondent may amend the answer to
the complaint upon motion granted by the Presiding Officer.
Sec. 22.16 Motions.
(a) General. Motions shall be served as provided by Sec. 22.5(b)(2).
Upon the filing of a motion, other parties may file responses to the
motion and the movant may file a reply to the response. Any additional
responsive documents shall be permitted only by order of the Presiding
Officer or Environmental Appeals Board, as appropriate. All motions,
except those made orally on the record during a hearing, shall:
(1) Be in writing;
(2) State the grounds therefor, with particularity;
(3) Set forth the relief sought; and
(4) Be accompanied by any affidavit, certificate, other evidence or
legal memorandum relied upon.
(b) Response to motions. A party's response to any written motion
must be filed within 15 days after service of such motion. The movant's
reply to any written response must be filed within 10 days after service
of such response and shall be limited to issues raised in the response.
The Presiding Officer or the Environmental Appeals Board may set a
shorter or longer time for response or reply, or make other orders
concerning the disposition of motions. The response or reply shall be
accompanied by any affidavit, certificate, other evidence, or legal
memorandum relied upon. Any party who fails to respond within the
designated period waives any objection to the granting of the motion.
(c) Decision. The Regional Judicial Officer (or in a proceeding
commenced at EPA Headquarters, the Environmental Appeals Board) shall
rule on all motions filed or made before an answer to the complaint is
filed. Except as provided in Secs. 22.29(c) and 22.51, an Administrative
Law Judge shall rule on all motions filed or made after an answer is
filed and before an initial decision has become final or has been
appealed. The Environmental Appeals Board shall rule as provided in
Sec. 22.29(c) and on all motions filed or made after an appeal of the
initial decision is filed, except as provided pursuant to Sec. 22.28.
(d) Oral argument. The Presiding Officer or the Environmental
Appeals Board may permit oral argument on motions in its discretion.
Sec. 22.17 Default.
(a) Default. A party may be found to be in default: after motion,
upon failure to file a timely answer to the complaint; upon failure to
comply with the information exchange requirements of Sec. 22.19(a) or an
order of the Presiding Officer; or upon failure to appear at a
conference or hearing. Default by respondent constitutes, for purposes
of the pending proceeding only, an admission of all facts alleged in the
complaint and a waiver of respondent's right to contest such factual
allegations. Default by complainant constitutes a waiver of
complainant's
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right to proceed on the merits of the action, and shall result in the
dismissal of the complaint with prejudice.
(b) Motion for default. A motion for default may seek resolution of
all or part of the proceeding. Where the motion requests the assessment
of a penalty or the imposition of other relief against a defaulting
party, the movant must specify the penalty or other relief sought and
state the legal and factual grounds for the relief requested.
(c) Default order. When the Presiding Officer finds that default has
occurred, he shall issue a default order against the defaulting party as
to any or all parts of the proceeding unless the record shows good cause
why a default order should not be issued. If the order resolves all
outstanding issues and claims in the proceeding, it shall constitute the
initial decision under these Consolidated Rules of Practice. The relief
proposed in the complaint or the motion for default shall be ordered
unless the requested relief is clearly inconsistent with the record of
the proceeding or the Act. For good cause shown, the Presiding Officer
may set aside a default order.
(d) Payment of penalty; effective date of compliance or corrective
action orders, and Permit Actions. Any penalty assessed in the default
order shall become due and payable by respondent without further
proceedings 30 days after the default order becomes final under
Sec. 22.27(c). Any default order requiring compliance or corrective
action shall be effective and enforceable without further proceedings on
the date the default order becomes final under Sec. 22.27(c). Any Permit
Action ordered in the default order shall become effective without
further proceedings on the date that the default order becomes final
under Sec. 22.27(c).
Sec. 22.18 Quick resolution; settlement; alternative dispute resolution.
(a) Quick resolution. (1) A respondent may resolve the proceeding at
any time by paying the specific penalty proposed in the complaint or in
complainant's prehearing exchange in full as specified by complainant
and by filing with the Regional Hearing Clerk a copy of the check or
other instrument of payment. If the complaint contains a specific
proposed penalty and respondent pays that proposed penalty in full
within 30 days after receiving the complaint, then no answer need be
filed. This paragraph (a) shall not apply to any complaint which seeks a
compliance or corrective action order or Permit Action. In a proceeding
subject to the public comment provisions of Sec. 22.45, this quick
resolution is not available until 10 days after the close of the comment
period.
(2) Any respondent who wishes to resolve a proceeding by paying the
proposed penalty instead of filing an answer, but who needs additional
time to pay the penalty, may file a written statement with the Regional
Hearing Clerk within 30 days after receiving the complaint stating that
the respondent agrees to pay the proposed penalty in accordance with
paragraph (a)(1) of this section. The written statement need not contain
any response to, or admission of, the allegations in the complaint.
Within 60 days after receiving the complaint, the respondent shall pay
the full amount of the proposed penalty. Failure to make such payment
within 60 days of receipt of the complaint may subject the respondent to
default pursuant to Sec. 22.17.
(3) Upon receipt of payment in full, the Regional Judicial Officer
or Regional Administrator, or, in a proceeding commenced at EPA
Headquarters, the Environmental Appeals Board, shall issue a final
order. Payment by respondent shall constitute a waiver of respondent's
rights to contest the allegations and to appeal the final order.
(b) Settlement. (1) The Agency encourages settlement of a proceeding
at any time if the settlement is consistent with the provisions and
objectives of the Act and applicable regulations. The parties may engage
in settlement discussions whether or not the respondent requests a
hearing. Settlement discussions shall not affect the respondent's
obligation to file a timely answer under Sec. 22.15.
(2) Consent agreement. Any and all terms and conditions of a
settlement shall be recorded in a written consent agreement signed by
all parties or their representatives. The consent
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agreement shall state that, for the purpose of the proceeding,
respondent: Admits the jurisdictional allegations of the complaint;
admits the facts stipulated in the consent agreement or neither admits
nor denies specific factual allegations contained in the complaint;
consents to the assessment of any stated civil penalty, to the issuance
of any specified compliance or corrective action order, to any
conditions specified in the consent agreement, and to any stated Permit
Action; and waives any right to contest the allegations and its right to
appeal the proposed final order accompanying the consent agreement.
Where complainant elects to commence a proceeding pursuant to
Sec. 22.13(b), the consent agreement shall also contain the elements
described at Sec. 22.14(a)(1)-(3) and (8). The parties shall forward the
executed consent agreement and a proposed final order to the Regional
Judicial Officer or Regional Administrator, or, in a proceeding
commenced at EPA Headquarters, the Environmental Appeals Board.
(3) Conclusion of proceeding. No settlement or consent agreement
shall dispose of any proceeding under these Consolidated Rules of
Practice without a final order from the Regional Judicial Officer or
Regional Administrator, or, in a proceeding commenced at EPA
Headquarters, the Environmental Appeals Board, ratifying the parties'
consent agreement.
(c) Scope of resolution or settlement. Full payment of the penalty
proposed in a complaint pursuant to paragraph (a) of this section or
settlement pursuant to paragraph (b) of this section shall not in any
case affect the right of the Agency or the United States to pursue
appropriate injunctive or other equitable relief or criminal sanctions
for any violations of law. Full payment of the penalty proposed in a
complaint pursuant to paragraph (a) of this section or settlement
pursuant to paragraph (b) of this section shall only resolve
respondent's liability for Federal civil penalties for the violations
and facts alleged in the complaint.
(d) Alternative means of dispute resolution. (1) The parties may
engage in any process within the scope of the Alternative Dispute
Resolution Act (``ADRA''), 5 U.S.C. 581 et seq., which may facilitate
voluntary settlement efforts. Such process shall be subject to the
confidentiality provisions of the ADRA.
(2) Dispute resolution under this paragraph (d) does not divest the
Presiding Officer of jurisdiction and does not automatically stay the
proceeding. All provisions of these Consolidated Rules of Practice
remain in effect notwithstanding any dispute resolution proceeding.
(3) The parties may choose any person to act as a neutral, or may
move for the appointment of a neutral. If the Presiding Officer grants a
motion for the appointment of a neutral, the Presiding Officer shall
forward the motion to the Chief Administrative Law Judge, except in
proceedings under subpart I of this part, in which the Presiding Officer
shall forward the motion to the Regional Administrator. The Chief
Administrative Law Judge or Regional Administrator, as appropriate,
shall designate a qualified neutral.
Sec. 22.19 Prehearing information exchange; prehearing conference; other discovery.
(a) Prehearing information exchange. (1) In accordance with an order
issued by the Presiding Officer, each party shall file a prehearing
information exchange. Except as provided in Sec. 22.22(a), a document or
exhibit that has not been included in prehearing information exchange
shall not be admitted into evidence, and any witness whose name and
testimony summary has not been included in prehearing information
exchange shall not be allowed to testify. Parties are not required to
exchange information relating to settlement which would be excluded in
the federal courts under Rule 408 of the Federal Rules of Evidence.
Documents and exhibits shall be marked for identification as ordered by
the Presiding Officer.
(2) Each party's prehearing information exchange shall contain:
(i) The names of any expert or other witnesses it intends to call at
the hearing, together with a brief narrative summary of their expected
testimony, or a statement that no witnesses will
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be called; and (ii) Copies of all documents and exhibits which it
intends to introduce into evidence at the hearing.
(3) If the proceeding is for the assessment of a penalty and
complainant has already specified a proposed penalty, complainant shall
explain in its prehearing information exchange how the proposed penalty
was calculated in accordance with any criteria set forth in the Act, and
the respondent shall explain in its prehearing information exchange why
the proposed penalty should be reduced or eliminated.
(4) If the proceeding is for the assessment of a penalty and
complainant has not specified a proposed penalty, each party shall
include in its prehearing information exchange all factual information
it considers relevant to the assessment of a penalty. Within 15 days
after respondent files its prehearing information exchange, complainant
shall file a document specifying a proposed penalty and explaining how
the proposed penalty was calculated in accordance with any criteria set
forth in the Act.
(b) Prehearing conference. The Presiding Officer, at any time before
the hearing begins, may direct the parties and their counsel or other
representatives to participate in a conference to consider:
(1) Settlement of the case;
(2) Simplification of issues and stipulation of facts not in
dispute;
(3) The necessity or desirability of amendments to pleadings;
(4) The exchange of exhibits, documents, prepared testimony, and
admissions or stipulations of fact which will avoid unnecessary proof;
(5) The limitation of the number of expert or other witnesses;
(6) The time and place for the hearing; and
(7) Any other matters which may expedite the disposition of the
proceeding.
(c) Record of the prehearing conference. No transcript of a
prehearing conference relating to settlement shall be made. With respect
to other prehearing conferences, no transcript of any prehearing
conferences shall be made unless ordered by the Presiding Officer. The
Presiding Officer shall ensure that the record of the proceeding
includes any stipulations, agreements, rulings or orders made during the
conference.
(d) Location of prehearing conference. The prehearing conference
shall be held in the county where the respondent resides or conducts the
business which the hearing concerns, in the city in which the relevant
Environmental Protection Agency Regional Office is located, or in
Washington, DC, unless the Presiding Officer determines that there is
good cause to hold it at another location or by telephone.
(e) Other discovery. (1) After the information exchange provided for
in paragraph (a) of this section, a party may move for additional
discovery. The motion shall specify the method of discovery sought,
provide the proposed discovery instruments, and describe in detail the
nature of the information and/or documents sought (and, where relevant,
the proposed time and place where discovery would be conducted). The
Presiding Officer may order such other discovery only if it:
(i) Will neither unreasonably delay the proceeding nor unreasonably
burden the non-moving party;
(ii) Seeks information that is most reasonably obtained from the
non-moving party, and which the non-moving party has refused to provide
voluntarily; and
(iii) Seeks information that has significant probative value on a
disputed issue of material fact relevant to liability or the relief
sought.
(2) Settlement positions and information regarding their development
(such as penalty calculations for purposes of settlement based upon
Agency settlement policies) shall not be discoverable.
(3) The Presiding Officer may order depositions upon oral questions
only in accordance with paragraph (e)(1) of this section and upon an
additional finding that:
(i) The information sought cannot reasonably be obtained by
alternative methods of discovery; or
(ii) There is a substantial reason to believe that relevant and
probative evidence may otherwise not be preserved for presentation by a
witness at the hearing.
[[Page 256]]
(4) The Presiding Officer may require the attendance of witnesses or
the production of documentary evidence by subpoena, if authorized under
the Act. The Presiding Officer may issue a subpoena for discovery
purposes only in accordance with paragraph (e)(1) of this section and
upon an additional showing of the grounds and necessity therefor.
Subpoenas shall be served in accordance with Sec. 22.5(b)(1). Witnesses
summoned before the Presiding Officer shall be paid the same fees and
mileage that are paid witnesses in the courts of the United States. Any
fees shall be paid by the party at whose request the witness appears.
Where a witness appears pursuant to a request initiated by the Presiding
Officer, fees shall be paid by the Agency.
(5) Nothing in this paragraph (e) shall limit a party's right to
request admissions or stipulations, a respondent's right to request
Agency records under the Federal Freedom of Information Act, 5 U.S.C.
552, or EPA's authority under any applicable law to conduct inspections,
issue information request letters or administrative subpoenas, or
otherwise obtain information.
(f) Supplementing prior exchanges. A party who has made an
information exchange under paragraph (a) of this section, or who has
exchanged information in response to a request for information or a
discovery order pursuant to paragraph (e) of this section, shall
promptly supplement or correct the exchange when the party learns that
the information exchanged or response provided is incomplete, inaccurate
or outdated, and the additional or corrective information has not
otherwise been disclosed to the other party pursuant to this section.
(g) Failure to exchange information. Where a party fails to provide
information within its control as required pursuant to this section, the
Presiding Officer may, in his discretion:
(1) Infer that the information would be adverse to the party failing
to provide it;
(2) Exclude the information from evidence; or
(3) Issue a default order under Sec. 22.17(c).
Sec. 22.20 Accelerated decision; decision to dismiss.
(a) General. The Presiding Officer may at any time render an
accelerated decision in favor of a party as to any or all parts of the
proceeding, without further hearing or upon such limited additional
evidence, such as affidavits, as he may require, if no genuine issue of
material fact exists and a party is entitled to judgment as a matter of
law. The Presiding Officer, upon motion of the respondent, may at any
time dismiss a proceeding without further hearing or upon such limited
additional evidence as he requires, on the basis of failure to establish
a prima facie case or other grounds which show no right to relief on the
part of the complainant.
(b) Effect. (1) If an accelerated decision or a decision to dismiss
is issued as to all issues and claims in the proceeding, the decision
constitutes an initial decision of the Presiding Officer, and shall be
filed with the Regional Hearing Clerk.
(2) If an accelerated decision or a decision to dismiss is rendered
on less than all issues or claims in the proceeding, the Presiding
Officer shall determine what material facts exist without substantial
controversy and what material facts remain controverted. The partial
accelerated decision or the order dismissing certain counts shall
specify the facts which appear substantially uncontroverted, and the
issues and claims upon which the hearing will proceed.
Subpart D--Hearing Procedures
Sec. 22.21 Assignment of Presiding Officer; scheduling the hearing.
(a) Assignment of Presiding Officer. When an answer is filed, the
Regional Hearing Clerk shall forward a copy of the complaint, the
answer, and any other documents filed in the proceeding to the Chief
Administrative Law Judge who shall serve as Presiding Officer or assign
another Administrative Law Judge as Presiding Officer. The Presiding
Officer shall then obtain the case file from the Chief Administrative
Law Judge and notify the parties of his assignment.
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(b) Notice of hearing. The Presiding Officer shall hold a hearing if
the proceeding presents genuine issues of material fact. The Presiding
Officer shall serve upon the parties a notice of hearing setting forth a
time and place for the hearing not later than 30 days prior to the date
set for the hearing. The Presiding Officer may require the attendance of
witnesses or the production of documentary evidence by subpoena, if
authorized under the Act, upon a showing of the grounds and necessity
therefor, and the materiality and relevancy of the evidence to be
adduced.
(c) Postponement of hearing. No request for postponement of a
hearing shall be granted except upon motion and for good cause shown.
(d) Location of the hearing. The location of the hearing shall be
determined in accordance with the method for determining the location of
a prehearing conference under Sec. 22.19(d).
Sec. 22.22 Evidence.
(a) General. (1) The Presiding Officer shall admit all evidence
which is not irrelevant, immaterial, unduly repetitious, unreliable, or
of little probative value, except that evidence relating to settlement
which would be excluded in the federal courts under Rule 408 of the
Federal Rules of Evidence (28 U.S.C.) is not admissible. If, however, a
party fails to provide any document, exhibit, witness name or summary of
expected testimony required to be exchanged under Sec. 22.19 (a), (e) or
(f) to all parties at least 15 days before the hearing date, the
Presiding Officer shall not admit the document, exhibit or testimony
into evidence, unless the non-exchanging party had good cause for
failing to exchange the required information and provided the required
information to all other parties as soon as it had control of the
information, or had good cause for not doing so.
(2) In the presentation, admission, disposition, and use of oral and
written evidence, EPA officers, employees and authorized representatives
shall preserve the confidentiality of information claimed confidential,
whether or not the claim is made by a party to the proceeding, unless
disclosure is authorized pursuant to 40 CFR part 2. A business
confidentiality claim shall not prevent information from being
introduced into evidence, but shall instead require that the information
be treated in accordance with 40 CFR part 2, subpart B. The Presiding
Officer or the Environmental Appeals Board may consider such evidence in
a proceeding closed to the public, and which may be before some, but not
all, parties, as necessary. Such proceeding shall be closed only to the
extent necessary to comply with 40 CFR part 2, subpart B, for
information claimed confidential. Any affected person may move for an
order protecting the information claimed confidential.
(b) Examination of witnesses. Witnesses shall be examined orally,
under oath or affirmation, except as otherwise provided in paragraphs
(c) and (d) of this section or by the Presiding Officer. Parties shall
have the right to cross-examine a witness who appears at the hearing
provided that such cross-examination is not unduly repetitious.
(c) Written testimony. The Presiding Officer may admit and insert
into the record as evidence, in lieu of oral testimony, written
testimony prepared by a witness. The admissibility of any part of the
testimony shall be subject to the same rules as if the testimony were
produced under oral examination. Before any such testimony is read or
admitted into evidence, the party who has called the witness shall
deliver a copy of the testimony to the Presiding Officer, the reporter,
and opposing counsel. The witness presenting the testimony shall swear
to or affirm the testimony and shall be subject to appropriate oral
cross-examination.
(d) Admission of affidavits where the witness is unavailable. The
Presiding Officer may admit into evidence affidavits of witnesses who
are unavailable. The term ``unavailable'' shall have the meaning
accorded to it by Rule 804(a) of the Federal Rules of Evidence.
(e) Exhibits. Where practicable, an original and one copy of each
exhibit shall be filed with the Presiding Officer for the record and a
copy shall be furnished to each party. A true copy of any exhibit may be
substituted for the original.
(f) Official notice. Official notice may be taken of any matter
which can be
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judicially noticed in the Federal courts and of other facts within the
specialized knowledge and experience of the Agency. Opposing parties
shall be given adequate opportunity to show that such facts are
erroneously noticed.
Sec. 22.23 Objections and offers of proof.
(a) Objection. Any objection concerning the conduct of the hearing
may be stated orally or in writing during the hearing. The party raising
the objection must supply a short statement of its grounds. The ruling
by the Presiding Officer on any objection and the reasons given for it
shall be part of the record. An exception to each objection overruled
shall be automatic and is not waived by further participation in the
hearing.
(b) Offers of proof. Whenever the Presiding Officer denies a motion
for admission into evidence, the party offering the information may make
an offer of proof, which shall be included in the record. The offer of
proof for excluded oral testimony shall consist of a brief statement
describing the nature of the information excluded. The offer of proof
for excluded documents or exhibits shall consist of the documents or
exhibits excluded. Where the Environmental Appeals Board decides that
the ruling of the Presiding Officer in excluding the information from
evidence was both erroneous and prejudicial, the hearing may be reopened
to permit the taking of such evidence.
Sec. 22.24 Burden of presentation; burden of persuasion; preponderance of the evidence standard.
(a) The complainant has the burdens of presentation and persuasion
that the violation occurred as set forth in the complaint and that the
relief sought is appropriate. Following complainant's establishment of a
prima facie case, respondent shall have the burden of presenting any
defense to the allegations set forth in the complaint and any response
or evidence with respect to the appropriate relief. The respondent has
the burdens of presentation and persuasion for any affirmative defenses.
(b) Each matter of controversy shall be decided by the Presiding
Officer upon a preponderance of the evidence.
Sec. 22.25 Filing the transcript.
The hearing shall be transcribed verbatim. Promptly following the
taking of the last evidence, the reporter shall transmit to the Regional
Hearing Clerk the original and as many copies of the transcript of
testimony as are called for in the reporter's contract with the Agency,
and also shall transmit to the Presiding Officer a copy of the
transcript. A certificate of service shall accompany each copy of the
transcript. The Regional Hearing Clerk shall notify all parties of the
availability of the transcript and shall furnish the parties with a copy
of the transcript upon payment of the cost of reproduction, unless a
party can show that the cost is unduly burdensome. Any person not a
party to the proceeding may receive a copy of the transcript upon
payment of the reproduction fee, except for those parts of the
transcript ordered to be kept confidential by the Presiding Officer. Any
party may file a motion to conform the transcript to the actual
testimony within 30 days after receipt of the transcript, or 45 days
after the parties are notified of the availability of the transcript,
whichever is sooner.
Sec. 22.26 Proposed findings, conclusions, and order.
After the hearing, any party may file proposed findings of fact,
conclusions of law, and a proposed order, together with briefs in
support thereof. The Presiding Officer shall set a schedule for filing
these documents and any reply briefs, but shall not require them before
the last date for filing motions under Sec. 22.25 to conform the
transcript to the actual testimony. All submissions shall be in writing,
shall be served upon all parties, and shall contain adequate references
to the record and authorities relied on.
Subpart E--Initial Decision and Motion To Reopen a Hearing
Sec. 22.27 Initial Decision.
(a) Filing and contents. After the period for filing briefs under
Sec. 22.26 has expired, the Presiding Officer shall issue an initial
decision. The initial decision shall contain findings of fact,
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conclusions regarding all material issues of law or discretion, as well
as reasons therefor, and, if appropriate, a recommended civil penalty
assessment, compliance order, corrective action order, or Permit Action.
Upon receipt of an initial decision, the Regional Hearing Clerk shall
forward copies of the initial decision to the Environmental Appeals
Board and the Assistant Administrator for the Office of Enforcement and
Compliance Assurance.
(b) Amount of civil penalty. If the Presiding Officer determines
that a violation has occurred and the complaint seeks a civil penalty,
the Presiding Officer shall determine the amount of the recommended
civil penalty based on the evidence in the record and in accordance with
any penalty criteria set forth in the Act. The Presiding Officer shall
consider any civil penalty guidelines issued under the Act. The
Presiding Officer shall explain in detail in the initial decision how
the penalty to be assessed corresponds to any penalty criteria set forth
in the Act. If the Presiding Officer decides to assess a penalty
different in amount from the penalty proposed by complainant, the
Presiding Officer shall set forth in the initial decision the specific
reasons for the increase or decrease. If the respondent has defaulted,
the Presiding Officer shall not assess a penalty greater than that
proposed by complainant in the complaint, the prehearing information
exchange or the motion for default, whichever is less.
(c) Effect of initial decision. The initial decision of the
Presiding Officer shall become a final order 45 days after its service
upon the parties and without further proceedings unless:
(1) A party moves to reopen the hearing;
(2) A party appeals the initial decision to the Environmental
Appeals Board;
(3) A party moves to set aside a default order that constitutes an
initial decision; or
(4) The Environmental Appeals Board elects to review the initial
decision on its own initiative.
(d) Exhaustion of administrative remedies. Where a respondent fails
to appeal an initial decision to the Environmental Appeals Board
pursuant to Sec. 22.30 and that initial decision becomes a final order
pursuant to paragraph (c) of this section, respondent waives its rights
to judicial review. An initial decision that is appealed to the
Environmental Appeals Board shall not be final or operative pending the
Environmental Appeals Board's issuance of a final order.
Sec. 22.28 Motion to reopen a hearing.
(a) Filing and content. A motion to reopen a hearing to take further
evidence must be filed no later than 20 days after service of the
initial decision and shall state the specific grounds upon which relief
is sought. Where the movant seeks to introduce new evidence, the motion
shall: state briefly the nature and purpose of the evidence to be
adduced; show that such evidence is not cumulative; and show good cause
why such evidence was not adduced at the hearing. The motion shall be
made to the Presiding Officer and filed with the Regional Hearing Clerk.
(b) Disposition of motion to reopen a hearing. Within 15 days
following the service of a motion to reopen a hearing, any other party
to the proceeding may file with the Regional Hearing Clerk and serve on
all other parties a response. A reopened hearing shall be governed by
the applicable sections of these Consolidated Rules of Practice. The
filing of a motion to reopen a hearing shall automatically stay the
running of the time periods for an initial decision becoming final under
Sec. 22.27(c) and for appeal under Sec. 22.30. These time periods shall
begin again in full when the motion is denied or an amended initial
decision is served.
Subpart F--Appeals and Administrative Review
Sec. 22.29 Appeal from or review of interlocutory orders or rulings.
(a) Request for interlocutory appeal. Appeals from orders or rulings
other than an initial decision shall be allowed only at the discretion
of the Environmental Appeals Board. A party seeking interlocutory appeal
of such orders or rulings to the Environmental
[[Page 260]]
Appeals Board shall file a motion within 10 days of service of the order
or ruling, requesting that the Presiding Officer forward the order or
ruling to the Environmental Appeals Board for review, and stating
briefly the grounds for the appeal.
(b) Availability of interlocutory appeal. The Presiding Officer may
recommend any order or ruling for review by the Environmental Appeals
Board when:
(1) The order or ruling involves an important question of law or
policy concerning which there is substantial grounds for difference of
opinion; and
(2) Either an immediate appeal from the order or ruling will
materially advance the ultimate termination of the proceeding, or review
after the final order is issued will be inadequate or ineffective.
(c) Interlocutory review. If the Presiding Officer has recommended
review and the Environmental Appeals Board determines that interlocutory
review is inappropriate, or takes no action within 30 days of the
Presiding Officer's recommendation, the appeal is dismissed. When the
Presiding Officer declines to recommend review of an order or ruling, it
may be reviewed by the Environmental Appeals Board only upon appeal from
the initial decision, except when the Environmental Appeals Board
determines, upon motion of a party and in exceptional circumstances,
that to delay review would be contrary to the public interest. Such
motion shall be filed within 10 days of service of an order of the
Presiding Officer refusing to recommend such order or ruling for
interlocutory review.
Sec. 22.30 Appeal from or review of initial decision.
(a) Notice of appeal. (1) Within 30 days after the initial decision
is served, any party may appeal any adverse order or ruling of the
Presiding Officer by filing an original and one copy of a notice of
appeal and an accompanying appellate brief with the Environmental
Appeals Board (Clerk of the Board (Mail Code 1103B), United States
Environmental Protection Agency, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460. Hand deliveries may be made at Suite 500, 607 14th
Street, NW.). One copy of any document filed with the Clerk of the Board
shall also be served on the Regional Hearing Clerk. Appellant also shall
serve a copy of the notice of appeal upon the Presiding Officer.
Appellant shall simultaneously serve one copy of the notice and brief
upon all other parties and non-party participants. The notice of appeal
shall summarize the order or ruling, or part thereof, appealed from. The
appellant's brief shall contain tables of contents and authorities (with
page references), a statement of the issues presented for review, a
statement of the nature of the case and the facts relevant to the issues
presented for review (with appropriate references to the record),
argument on the issues presented, a short conclusion stating the precise
relief sought, alternative findings of fact, and alternative conclusions
regarding issues of law or discretion. If a timely notice of appeal is
filed by a party, any other party may file a notice of appeal on any
issue within 20 days after the date on which the first notice of appeal
was served.
(2) Within 20 days of service of notices of appeal and briefs under
paragraph (a)(1) of this section, any other party or non-party
participant may file with the Environmental Appeals Board an original
and one copy of a response brief responding to argument raised by the
appellant, together with reference to the relevant portions of the
record, initial decision, or opposing brief. Appellee shall
simultaneously serve one copy of the response brief upon each party ,
non-party participant, and the Regional Hearing Clerk. Response briefs
shall be limited to the scope of the appeal brief. Further briefs may be
filed only with the permission of the Environmental Appeals Board.
(b) Review initiated by the Environmental Appeals Board. Whenever
the Environmental Appeals Board determines to review an initial decision
on its own initiative, it shall file notice of its intent to review that
decision with the Clerk of the Board, and serve it upon the Regional
Hearing Clerk, the Presiding Officer and the parties within 45 days
after the initial decision was served upon the parties. The notice shall
include a statement of issues to be briefed by the parties and a time
schedule for the filing and service of briefs.
[[Page 261]]
(c) Scope of appeal or review. The parties' rights of appeal shall
be limited to those issues raised during the course of the proceeding
and by the initial decision, and to issues concerning subject matter
jurisdiction. If the Environmental Appeals Board determines that issues
raised, but not appealed by the parties, should be argued, it shall give
the parties reasonable written notice of such determination to permit
preparation of adequate argument. The Environmental Appeals Board may
remand the case to the Presiding Officer for further proceedings.
(d) Argument before the Environmental Appeals Board. The
Environmental Appeals Board may, at its discretion, order oral argument
on any or all issues in a proceeding.
(e) Motions on appeal. All motions made during the course of an
appeal shall conform to Sec. 22.16 unless otherwise provided.
(f) Decision. The Environmental Appeals Board shall adopt, modify,
or set aside the findings of fact and conclusions of law or discretion
contained in the decision or order being reviewed, and shall set forth
in the final order the reasons for its actions. The Environmental
Appeals Board may assess a penalty that is higher or lower than the
amount recommended to be assessed in the decision or order being
reviewed or from the amount sought in the complaint, except that if the
order being reviewed is a default order, the Environmental Appeals Board
may not increase the amount of the penalty above that proposed in the
complaint or in the motion for default, whichever is less. The
Environmental Appeals Board may adopt, modify or set aside any
recommended compliance or corrective action order or Permit Action. The
Environmental Appeals Board may remand the case to the Presiding Officer
for further action.
Subpart G--Final Order
Sec. 22.31 Final order.
(a) Effect of final order. A final order constitutes the final
Agency action in a proceeding. The final order shall not in any case
affect the right of the Agency or the United States to pursue
appropriate injunctive or other equitable relief or criminal sanctions
for any violations of law. The final order shall resolve only those
causes of action alleged in the complaint, or for proceedings commenced
pursuant to Sec. 22.13(b), alleged in the consent agreement. The final
order does not waive, extinguish or otherwise affect respondent's
obligation to comply with all applicable provisions of the Act and
regulations promulgated thereunder.
(b) Effective date. A final order is effective upon filing. Where an
initial decision becomes a final order pursuant to Sec. 22.27(c), the
final order is effective 45 days after the initial decision is served on
the parties.
(c) Payment of a civil penalty. The respondent shall pay the full
amount of any civil penalty assessed in the final order within 30 days
after the effective date of the final order unless otherwise ordered.
Payment shall be made by sending a cashier's check or certified check to
the payee specified in the complaint, unless otherwise instructed by the
complainant. The check shall note the case title and docket number.
Respondent shall serve copies of the check or other instrument of
payment on the Regional Hearing Clerk and on complainant. Collection of
interest on overdue payments shall be in accordance with the Debt
Collection Act, 31 U.S.C. 3717.
(d) Other relief. Any final order requiring compliance or corrective
action, or a Permit Action, shall become effective and enforceable
without further proceedings on the effective date of the final order
unless otherwise ordered.
(e) Final orders to Federal agencies on appeal. (1) A final order of
the Environmental Appeals Board issued pursuant to Sec. 22.30 to a
department, agency, or instrumentality of the United States shall become
effective 30 days after its service upon the parties unless the head of
the affected department, agency, or instrumentality requests a
conference with the Administrator in writing and serves a copy of the
request on the parties of record within 30 days of service of the final
order. If a timely request is made, a decision by the Administrator
shall become the final order.
[[Page 262]]
(2) A motion for reconsideration pursuant to Sec. 22.32 shall not
toll the 30-day period described in paragraph (e)(1) of this section
unless specifically so ordered by the Environmental Appeals Board.
Sec. 22.32 Motion to reconsider a final order.
Motions to reconsider a final order issued pursuant to Sec. 22.30
shall be filed within 10 days after service of the final order. Motions
must set forth the matters claimed to have been erroneously decided and
the nature of the alleged errors. Motions for reconsideration under this
provision shall be directed to, and decided by, the Environmental
Appeals Board. Motions for reconsideration directed to the
Administrator, rather than to the Environmental Appeals Board, will not
be considered, except in cases that the Environmental Appeals Board has
referred to the Administrator pursuant to Sec. 22.4(a) and in which the
Administrator has issued the final order. A motion for reconsideration
shall not stay the effective date of the final order unless so ordered
by the Environmental Appeals Board.
Subpart H--Supplemental Rules
Sec. 22.33 [Reserved]
Sec. 22.34 Supplemental rules governing the administrative assessment of civil penalties under the Clean Air Act.
(a) Scope. This section shall apply, in conjunction with Secs. 22.1
through 22.32, in administrative proceedings to assess a civil penalty
conducted under sections 113(d), 205(c), 211(d), and 213(d) of the Clean
Air Act, as amended (42 U.S.C. 7413(d), 7524(c), 7545(d), and 7547(d)).
Where inconsistencies exist between this section and Secs. 22.1 through
22.32, this section shall apply.
(b) Issuance of notice. Prior to the issuance of a final order
assessing a civil penalty, the person to whom the order is to be issued
shall be given written notice of the proposed issuance of the order.
Service of a complaint or a consent agreement and final order pursuant
to Sec. 22.13 satisfies this notice requirement.
Sec. 22.35 Supplemental rules governing the administrative assessment of civil penalties under the Federal Insecticide, Fungicide, and Rodenticide Act.
(a) Scope. This section shall apply, in conjunction with Secs. 22.1
through 22.32, in administrative proceedings to assess a civil penalty
conducted under section 14(a) of the Federal Insecticide, Fungicide, and
Rodenticide Act as amended (7 U.S.C. 136l(a)). Where inconsistencies
exist between this section and Secs. 22.1 through 22.32, this section
shall apply.
(b) Venue. The prehearing conference and the hearing shall be held
in the county, parish, or incorporated city of the residence of the
person charged, unless otherwise agreed in writing by all parties. For a
person whose residence is outside the United States and outside any
territory or possession of the United States, the prehearing conference
and the hearing shall be held at the EPA office listed at 40 CFR 1.7
that is closest to either the person's primary place of business within
the United States, or the primary place of business of the person's U.S.
agent, unless otherwise agreed by all parties.
Sec. 22.36 [Reserved]
Sec. 22.37 Supplemental rules governing administrative proceedings under the Solid Waste Disposal Act.
(a) Scope. This section shall apply, in conjunction with Secs. 22.1
through 22.32, in administrative proceedings under sections 3005(d) and
(e), 3008, 9003 and 9006 of the Solid Waste Disposal Act (42 U.S.C.
6925(d) and (e), 6928, 6991b and 6991e) (``SWDA''). Where
inconsistencies exist between this section and Secs. 22.1 through 22.32,
this section shall apply.
(b) Corrective action and compliance orders. A complaint may contain
a compliance order issued under section 3008(a) or section 9006(a), or a
corrective action order issued under section 3008(h) or section
9003(h)(4) of the SWDA. Any such order shall automatically become a
final order unless, no later than 30 days after the order is served, the
respondent requests a hearing pursuant to Sec. 22.15.
[[Page 263]]
Sec. 22.38 Supplemental rules of practice governing the administrative assessment of civil penalties under the Clean Water Act.
(a) Scope. This section shall apply, in conjunction with Secs. 22.1
through 22.32 and Sec. 22.45, in administrative proceedings for the
assessment of any civil penalty under section 309(g) or section
311(b)(6) of the Clean Water Act (``CWA'')(33 U.S.C. 1319(g) and
1321(b)(6)). Where inconsistencies exist between this section and
Secs. 22.1 through 22.32, this section shall apply.
(b) Consultation with States. For proceedings pursuant to section
309(g), the complainant shall provide the State agency with the most
direct authority over the matters at issue in the case an opportunity to
consult with the complainant. Complainant shall notify the State agency
within 30 days following proof of service of the complaint on the
respondent or, in the case of a proceeding proposed to be commenced
pursuant to Sec. 22.13(b), no less than 40 days before the issuance of
an order assessing a civil penalty.
(c) Administrative procedure and judicial review. Action of the
Administrator for which review could have been obtained under section
509(b)(1) of the CWA, 33 U.S.C. 1369(b)(1), shall not be subject to
review in an administrative proceeding for the assessment of a civil
penalty under section 309(g) or section 311(b)(6).
Sec. 22.39 Supplemental rules governing the administrative assessment of civil penalties under section 109 of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended.
(a) Scope. This section shall apply, in conjunction with Secs. 22.10
through 22.32, in administrative proceedings for the assessment of any
civil penalty under section 109 of the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C.
9609). Where inconsistencies exist between this section and Secs. 22.1
through 22.32, this section shall apply.
(b) Judicial review. Any person who requested a hearing with respect
to a Class II civil penalty under section 109(b) of CERCLA, 42 U.S.C.
9609(b), and who is the recipient of a final order assessing a civil
penalty may file a petition for judicial review of such order with the
United States Court of Appeals for the District of Columbia or for any
other circuit in which such person resides or transacts business. Any
person who requested a hearing with respect to a Class I civil penalty
under section 109(a)(4) of CERCLA, 42 U.S.C. 9609(a)(4), and who is the
recipient of a final order assessing the civil penalty may file a
petition for judicial review of such order with the appropriate district
court of the United States. All petitions must be filed within 30 days
of the date the order making the assessment was served on the parties.
(c) Payment of civil penalty assessed. Payment of civil penalties
assessed in the final order shall be made by forwarding a cashier's
check, payable to the ``EPA, Hazardous Substances Superfund,'' in the
amount assessed, and noting the case title and docket number, to the
appropriate regional Superfund Lockbox Depository.
Sec. 22.40 [Reserved]
Sec. 22.41 Supplemental rules governing the administrative assessment of civil penalties under Title II of the Toxic Substance Control Act, enacted as section
2 of the Asbestos Hazard Emergency Response Act (AHERA).
(a) Scope. This section shall apply, in conjunction with Secs. 22.1
through 22.32, in administrative proceedings to assess a civil penalty
conducted under section 207 of the Toxic Substances Control Act
(``TSCA'') (15 U.S.C. 2647). Where inconsistencies exist between this
section and Secs. 22.1 through 22.32, this section shall apply.
(b) Collection of civil penalty. Any civil penalty collected under
TSCA section 207 shall be used by the local educational agency for
purposes of complying with Title II of TSCA. Any portion of a civil
penalty remaining unspent after a local educational agency achieves
compliance shall be deposited into the Asbestos Trust Fund established
under section 5 of AHERA.
[[Page 264]]
Sec. 22.42 Supplemental rules governing the administrative assessment of civil penalties for violations of compliance orders issued to owners or operators of
public water systems under part B of the Safe Drinking Water
Act.
(a) Scope. This section shall apply, in conjunction with Secs. 22.1
through 22.32, in administrative proceedings to assess a civil penalty
under section 1414(g)(3)(B) of the Safe Drinking Water Act, 42 U.S.C.
300g-3(g)(3)(B). Where inconsistencies exist between this section and
Secs. 22.1 through 22.32, this section shall apply.
(b) Choice of forum. A complaint which specifies that subpart I of
this part applies shall also state that respondent has a right to elect
a hearing on the record in accordance with 5 U.S.C. 554, and that
respondent waives this right unless it requests in its answer a hearing
on the record in accordance with 5 U.S.C. 554. Upon such request, the
Regional Hearing Clerk shall recaption the documents in the record as
necessary, and notify the parties of the changes.
Sec. 22.43 Supplemental rules governing the administrative assessment of civil penalties against a federal agency under the Safe Drinking Water Act.
(a) Scope. This section shall apply, in conjunction with Secs. 22.1
through 22.32, in administrative proceedings to assess a civil penalty
against a federal agency under section 1447(b) of the Safe Drinking
Water Act, 42 U.S.C. 300j-6(b). Where inconsistencies exist between this
section and Secs. 22.1 through 22.32, this section shall apply.
(b) Effective date of final penalty order. Any penalty order issued
pursuant to this section and section 1447(b) of the Safe Drinking Water
Act shall become effective 30 days after it has been served on the
parties.
(c) Public notice of final penalty order. Upon the issuance of a
final penalty order under this section, the Administrator shall provide
public notice of the order by publication, and by providing notice to
any person who requests such notice. The notice shall include:
(1) The docket number of the order;
(2) The address and phone number of the Regional Hearing Clerk from
whom a copy of the order may be obtained;
(3) The location of the facility where violations were found;
(4) A description of the violations;
(5) The penalty that was assessed; and
(6) A notice that any interested person may, within 30 days of the
date the order becomes final, obtain judicial review of the penalty
order pursuant to section 1447(b) of the Safe Drinking Water Act, and
instruction that persons seeking judicial review shall provide copies of
any appeal to the persons described in 40 CFR 135.11(a).
Sec. 22.44 Supplemental rules of practice governing the termination of permits under section 402(a) of the Clean Water Act or under section 3008(a)(3) of the
Resource Conservation and Recovery Act.
(a) Scope of this subpart. The supplemental rules of practice in
this subpart shall also apply in conjunction with the Consolidated Rules
of Practice in this part and with the administrative proceedings for the
termination of permits under section 402(a) of the Clean Water Act or
under section 3008(a)(3) of the Resource Conservation and Recovery Act.
Notwithstanding the Consolidated Rules of Practice, these supplemental
rules shall govern with respect to the termination of such permits.
(b) In any proceeding to terminate a permit for cause under
Sec. 122.64 or Sec. 270.43 of this chapter during the term of the
permit:
(1) The complaint shall, in addition to the requirements of
Sec. 22.14(b), contain any additional information specified in
Sec. 124.8 of this chapter;
(2) The Director (as defined in Sec. 124.2 of this chapter) shall
provide public notice of the complaint in accordance with Sec. 124.10 of
this chapter, and allow for public comment in accordance with
Sec. 124.11 of this chapter; and
(3) The Presiding Officer shall admit into evidence the contents of
the Administrative Record described in Sec. 124.9 of this chapter, and
any public comments received.
[65 FR 30904, May 15, 2000]
[[Page 265]]
Sec. 22.45 Supplemental rules governing public notice and comment in proceedings under sections 309(g) and 311(b)(6)(B)(ii) of the Clean Water Act and section
1423(c) of the Safe Drinking Water Act.
(a) Scope. This section shall apply, in conjunction with Secs. 22.1
through 22.32, in administrative proceedings for the assessment of any
civil penalty under sections 309(g) and 311(b)(6)(B)(ii) of the Clean
Water Act (33 U.S.C. 1319(g) and 1321(b)(6)(B)(ii)), and under section
1423(c) of the Safe Drinking Water Act (42 U.S.C. 300h-2(c)). Where
inconsistencies exist between this section and Secs. 22.1 through 22.32,
this section shall apply.
(b) Public notice.--(1) General. Complainant shall notify the public
before assessing a civil penalty. Such notice shall be provided within
30 days following proof of service of the complaint on the respondent
or, in the case of a proceeding proposed to be commenced pursuant to
Sec. 22.13(b), no less than 40 days before the issuance of an order
assessing a civil penalty. The notice period begins upon first
publication of notice.
(2) Type and content of public notice. The complainant shall provide
public notice of the complaint (or the proposed consent agreement if
Sec. 22.13(b) is applicable) by a method reasonably calculated to
provide notice, and shall also provide notice directly to any person who
requests such notice. The notice shall include:
(i) The docket number of the proceeding;
(ii) The name and address of the complainant and respondent, and the
person from whom information on the proceeding may be obtained, and the
address of the Regional Hearing Clerk to whom appropriate comments shall
be directed;
(iii) The location of the site or facility from which the violations
are alleged, and any applicable permit number;
(iv) A description of the violation alleged and the relief sought;
and
(v) A notice that persons shall submit comments to the Regional
Hearing Clerk, and the deadline for such submissions.
(c) Comment by a person who is not a party. The following provisions
apply in regard to comment by a person not a party to a proceeding:
(1) Participation in proceeding. (i) Any person wishing to
participate in the proceedings must notify the Regional Hearing Clerk in
writing within the public notice period under paragraph (b)(1) of this
section. The person must provide his name, complete mailing address, and
state that he wishes to participate in the proceeding.
(ii) The Presiding Officer shall provide notice of any hearing on
the merits to any person who has met the requirements of paragraph
(c)(1)(i) of this section at least 20 days prior to the scheduled
hearing.
(iii) A commenter may present written comments for the record at any
time prior to the close of the record.
(iv) A commenter wishing to present evidence at a hearing on the
merits shall notify, in writing, the Presiding Officer and the parties
of its intent at least 10 days prior to the scheduled hearing. This
notice must include a copy of any document to be introduced, a
description of the evidence to be presented, and the identity of any
witness (and qualifications if an expert), and the subject matter of the
testimony.
(v) In any hearing on the merits, a commenter may present evidence,
including direct testimony subject to cross examination by the parties.
(vi) The Presiding Officer shall have the discretion to establish
the extent of commenter participation in any other scheduled activity.
(2) Limitations. A commenter may not cross-examine any witness in
any hearing and shall not be subject to or participate in any discovery
or prehearing exchange.
(3) Quick resolution and settlement. No proceeding subject to the
public notice and comment provisions of paragraphs (b) and (c) of this
section may be resolved or settled under Sec. 22.18, or commenced under
Sec. 22.13(b), until 10 days after the close of the comment period
provided in paragraph (c)(1) of this section.
[[Page 266]]
(4) Petition to set aside a consent agreement and proposed final
order. (i) Complainant shall provide to each commenter, by certified
mail, return receipt requested, but not to the Regional Hearing Clerk or
Presiding Officer, a copy of any consent agreement between the parties
and the proposed final order.
(ii) Within 30 days of receipt of the consent agreement and proposed
final order a commenter may petition the Regional Administrator (or, for
cases commenced at EPA Headquarters, the Environmental Appeals Board),
to set aside the consent agreement and proposed final order on the basis
that material evidence was not considered. Copies of the petition shall
be served on the parties, but shall not be sent to the Regional Hearing
Clerk or the Presiding Officer.
(iii) Within 15 days of receipt of a petition, the complainant may,
with notice to the Regional Administrator or Environmental Appeals Board
and to the commenter, withdraw the consent agreement and proposed final
order to consider the matters raised in the petition. If the complainant
does not give notice of withdrawal within 15 days of receipt of the
petition, the Regional Administrator or Environmental Appeals Board
shall assign a Petition Officer to consider and rule on the petition.
The Petition Officer shall be another Presiding Officer, not otherwise
involved in the case. Notice of this assignment shall be sent to the
parties, and to the Presiding Officer.
(iv) Within 30 days of assignment of the Petition Officer, the
complainant shall present to the Petition Officer a copy of the
complaint and a written response to the petition. A copy of the response
shall be provided to the parties and to the commenter, but not to the
Regional Hearing Clerk or Presiding Officer.
(v) The Petition Officer shall review the petition, and
complainant's response, and shall file with the Regional Hearing Clerk,
with copies to the parties, the commenter, and the Presiding Officer,
written findings as to:
(A) The extent to which the petition states an issue relevant and
material to the issuance of the proposed final order;
(B) Whether complainant adequately considered and responded to the
petition; and
(C) Whether a resolution of the proceeding by the parties is
appropriate without a hearing.
(vi) Upon a finding by the Petition Officer that a hearing is
appropriate, the Presiding Officer shall order that the consent
agreement and proposed final order be set aside and shall establish a
schedule for a hearing.
(vii) Upon a finding by the Petition Officer that a resolution of
the proceeding without a hearing is appropriate, the Petition Officer
shall issue an order denying the petition and stating reasons for the
denial. The Petition Officer shall:
(A) File the order with the Regional Hearing Clerk;
(B) Serve copies of the order on the parties and the commenter; and
(C) Provide public notice of the order.
(viii) Upon a finding by the Petition Officer that a resolution of
the proceeding without a hearing is appropriate, the Regional
Administrator may issue the proposed final order, which shall become
final 30 days after both the order denying the petition and a properly
signed consent agreement are filed with the Regional Hearing Clerk,
unless further petition for review is filed by a notice of appeal in the
appropriate United States District Court, with coincident notice by
certified mail to the Administrator and the Attorney General. Written
notice of appeal also shall be filed with the Regional Hearing Clerk,
and sent to the Presiding Officer and the parties.
(ix) If judicial review of the final order is denied, the final
order shall become effective 30 days after such denial has been filed
with the Regional Hearing Clerk.
Secs. 22.46-22.49 [Reserved]
Subpart I--Administrative Proceedings Not Governed by Section 554 of the
Administrative Procedure Act
Sec. 22.50 Scope of this subpart.
(a) Scope. This subpart applies to all adjudicatory proceedings for:
[[Page 267]]
(1) The assessment of a penalty under sections 309(g)(2)(A) and
311(b)(6)(B)(i) of the Clean Water Act (33 U.S.C. 1319(g)(2)(A) and
1321(b)(6)(B)(i)).
(2) The assessment of a penalty under sections 1414(g)(3)(B) and
1423(c) of the Safe Drinking Water Act (42 U.S.C. 300g-3(g)(3)(B) and
300h-2(c)), except where a respondent in a proceeding under section
1414(g)(3)(B) requests in its answer a hearing on the record in
accordance with section 554 of the Administrative Procedure Act, 5
U.S.C. 554.
(b) Relationship to other provisions. Sections 22.1 through 22.45
apply to proceedings under this subpart, except for the following
provisions which do not apply: Secs. 22.11, 22.16(c), 22.21(a), and
22.29. Where inconsistencies exist between this subpart and subparts A
through G of this part, this subpart shall apply. Where inconsistencies
exist between this subpart and subpart H of this part, subpart H shall
apply.
Sec. 22.51 Presiding Officer.
The Presiding Officer shall be a Regional Judicial Officer. The
Presiding Officer shall conduct the hearing, and rule on all motions
until an initial decision has become final or has been appealed.
Sec. 22.52 Information exchange and discovery.
Respondent's information exchange pursuant to Sec. 22.19(a) shall
include information on any economic benefit resulting from any activity
or failure to act which is alleged in the administrative complaint to be
a violation of applicable law, including its gross revenues, delayed or
avoided costs. Discovery under Sec. 22.19(e) shall not be authorized,
except for discovery of information concerning respondent's economic
benefit from alleged violations and information concerning respondent's
ability to pay a penalty.