[Federal Register Volume 63, Number 37 (Wednesday, February 25, 1998)]
[Proposed Rules]
[Pages 9464-9494]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-4520]



[[Page 9464]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 22 and 59

[FRL-5966-7]
RIN 2020-AA13


Consolidated Rules of Practice Governing the Administrative 
Assessment of Civil Penalties, Issuance of Compliance or Corrective 
Action Orders, and the Revocation, Termination or Suspension of Permits

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is today proposing technical amendments and other 
refinements to the Consolidated Rules of Practice Governing the 
Administrative Assessment of Civil Penalties, 40 CFR part 22, including 
the addition of new rules for administrative proceedings not governed 
by section 554 of the Administrative Procedure Act.

DATES: Comments must be submitted on or before April 27, 1998.

ADDRESSES: Comments should be submitted in writing to Enforcement and 
Compliance Docket and Information Center (2201A), Office of Enforcement 
and Compliance Assurance, Office of Regulatory Enforcement, U.S. 
Environmental Protection Agency, 401 M Street, SW, Washington, D.C. 
20460 or via electronic mail to [email protected]. Comments 
submitted on paper must be submitted in triplicate.
    EPA will make available, both in paper form and on the internet, a 
record of comments received in response to this document. The official 
docket will be a paper record of all comments received in writing or by 
electronic mail. This record may be reviewed at room 4033 of the Ariel 
Rios Federal Building, 1200 Pennsylvania Avenue, N.W., Washington, DC 
20044. Persons interested in reviewing the comments must make advance 
arrangements to do so by calling 202-564-2614. A reasonable fee may be 
charged by EPA for copying docket materials. The Agency also will 
publish a copy of the official docket on the Office of Enforcement and 
Compliance Assurance's internet home page at 
http:\\www.epa.gov\oeca\r*egstat2.html. The Agency intends that this 
internet docket should duplicate the official paper record, however, if 
technological or resource limitations make it infeasible to include one 
or more comments on the internet docket, the internet docket will 
identify those comments available only in the official paper docket.

FOR FURTHER INFORMATION CONTACT: Scott Garrison (202-564-4047), Office 
Enforcement and Compliance Assurance, Office of Regulatory Enforcement 
(2248A), U.S. Environmental Protection Agency, Washington, D.C. 20460.

SUPPLEMENTARY INFORMATION:

I. Background

    The Consolidated Rules of Practice (``CROP'') at 40 CFR part 22 
were promulgated in 1980 to establish uniform procedural rules for 
administrative enforcement proceedings required under various 
environmental statutes to be held on the record after opportunity for a 
hearing in accordance with section 554 of the Administrative Procedure 
Act, 5 U.S.C. 551 et seq. (``APA''). Aside from the addition of 
statute-specific amendments to subpart H (see e.g., Rules of Practice 
Governing the Administrative Assessment of Class II Civil Penalties 
Under the Clean Water Act, 55 FR 23838 (1990), codified at 40 CFR 
2.38), the CROP have not been substantially revised since their initial 
promulgation. Today's proposal would correct a number of 
inconsistencies and ambiguities in the procedures which have become 
apparent through experience with the CROP. In addition, the Agency 
proposes to update and modernize the procedures to make them more 
``user-friendly'' and to aid in streamlining administrative practice.
    On July 1, 1991, EPA proposed a separate set of procedures for the 
administrative assessment of penalties where a hearing on the record 
under APA section 554 is not required, commonly referred to as ``non-
APA'' enforcement actions. See 56 FR 29996. These procedures, to be 
codified at 40 CFR part 28, were authorized by Congress in various 
statutes. Id. The proposed ``part 28'' procedures were designed to 
provide a quick and understandable process by which to resolve non-APA 
enforcement actions, while protecting the basic due process rights of a 
respondent. Id. at 29997 (discussion of constitutional due process 
requirements as established in Matthews v. Eldridge, 424 U.S. 319 
(1976)). EPA subsequently issued guidance in September, 1991, to the 
EPA Regional Offices calling for use of the proposed part 28 procedures 
for Class I penalty actions under section 309(g) of the Clean Water Act 
(``CWA'') and, several months later, for Class I penalty actions under 
section 311(b)(6) of the CWA. Although use of these procedures did 
result in quicker resolution of administrative penalty cases than had 
occurred before, Agency experience revealed that the majority of EPA 
Regions were following, with some modification, the CROP procedures for 
non-APA enforcement actions, in large measure out of familiarity with 
the CROP. A side-by-side comparison of the proposed part 28 with the 
CROP reveals many similar sections and procedures.
    The proposed part 28 introduced a number of useful concepts to 
EPA's administrative practice, such as limitations on written legal 
arguments or statements (Sec. 28.8), a more clearly described commenter 
role for certain CWA and Safe Drinking Water Act (``SDWA'') cases, 
expansion of information exchange and restrictions on formal discovery 
(Sec. 28.24), a more structured default procedure (Sec. 28.21), and 
simplified and expedited settlement procedures (Sec. 28.22). Many of 
these concepts are the basis for today's proposed revisions to the APA 
procedures of the CROP. See, e.g., proposed Sec. 22.18(a) ``Quick 
resolution'' provisions. Given the many similarities between the CROP 
and proposed part 28, as well as the Agency's long-standing goal of 
enhancing administrative efficiency, the Agency believes that 
maintaining two stand-alone sets of procedures for its administrative 
enforcement practice which contain more similarities than differences 
would be inefficient and confusing. The specific requirements 
appropriate to non-APA enforcement actions can be presented effectively 
and efficiently as a short subpart to the CROP. Accordingly, today's 
proposal includes in subpart I modifications to the basic CROP suitable 
for non-APA proceedings. EPA expects to withdraw the part 28 proposal 
upon issuance of these CROP amendments as a final rule.
    Similarly, the proposed revisions to the CROP would supersede and 
replace the anticipated rules governing non-APA hearings on field 
citations under section 113(d)(3) of the Clean Air Act (``CAA''). On 
May 3, 1994, EPA published the proposed Field Citation Program to be 
codified at 40 CFR 59. 59 FR 22776. EPA expects that the part 59 Field 
Citation Program will be promulgated as a final rule before the 
completion of this CROP rulemaking. Subpart B of part 59, ``Rules 
Governing Hearings on Field Citations,'' will govern CAA section 
113(d)(3) proceedings until these CROP revisions become final. EPA 
expects that upon promulgation of the CROP revisions as a final rule, 
subpart B of part 59 would be repealed and the revised CROP would be 
used for CAA section 113(d)(3) proceedings.

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    In addition, in order to implement the SDWA Amendments of 1996, EPA 
anticipates that it will soon repeal subpart J of 40 CFR part 142, 
``Procedures for PWS Administrative Compliance Orders.'' Section 
142.208 of that subpart stated that the CROP procedures are to apply to 
administrative actions enforcing compliance orders issued under section 
1414(g) of the SDWA, 42 U.S.C. 300g-3. That instruction is now part of 
this proposed rulemaking, and EPA intends to use the relevant CROP 
procedures proposed below as procedural guidance for SDWA section 
1414(g)(3)(B) administrative enforcement actions during the interim 
period before final promulgation of revisions to the CROP.
    On December 11, 1996, EPA proposed to modify the procedures for 
termination of National Pollutant Discharge Elimination System 
(``NPDES'') permits issued under the CWA and for permits issued under 
Subtitle C of the Resource Conservation and Recovery Act (``RCRA''). 61 
FR 65268. EPA proposed to substitute the procedures contained in the 
CROP governing revocation, termination and suspension of other EPA 
permits for the existing procedures in part 124, subpart E (which cover 
only termination of NPDES and RCRA Subtitle C permits). EPA proposed 
two changes to the CROP to implement this proposal: (1) EPA proposed to 
insert the word ``termination'' or ``terminate'' as appropriate 
wherever the existing CROP refers to ``revocation or suspension'' or 
``revoke or suspend'' permits; (2) EPA proposed to add a set of 
supplemental rules at Sec. 22.44 to cover NPDES or RCRA permit 
terminations. See 60 FR 65280 for a discussion of this proposal. The 
comment period on this proposal closed on February 10, 1997. For the 
convenience of the public, today's proposal reflects all the changes to 
the CROP EPA has previously proposed, with some minor editorial 
changes. EPA is not, however, soliciting new comments on changes 
previously proposed, nor will EPA respond to any such comments in the 
final rule to this proposal. Any comments on the proposal to terminate 
NPDES or RCRA permits using the CROP procedures should be directed to 
the docket for that proposal, referenced in the December 11, 1996 
document. It should be noted, however, that such comments will be 
considered late-filed.

II. Proposed Revisions

A. Revisions to Part 22

1. Statement of authority
    The ``Authority'' section is reorganized in numeric order, and 
updated to include additional authorities. To the extent that these 
additional authorities change the scope of the CROP, they are discussed 
below in regard to Sec. 22.01(a).
2. Scope of the Rules
    Section 22.01(a): The phrase ``Consolidated Rules of Practice'' 
would be substituted for other phrases such as ``these rules of 
practice,'' ``these rules,'' and ``this part,'' for consistency here in 
paragraph (a) and throughout the CROP. The first sentence would also be 
revised to clarify that these procedures apply only to administrative 
adjudications. Substantive changes to the scope of the CROP are 
discussed in detail below.
    The scope section will mandate that the Agency shall use the CROP 
procedures for all administrative adjudicatory proceedings listed 
therein. Although the Agency does not commit itself to apply these 
procedures to administrative actions other than those listed in the 
scope, where it has discretion to do so, the Agency may elect to 
informally apply these procedures for other adjudications not listed. 
The Agency has, however, attempted to make the proposed scope a 
complete list of all the proceedings likely to be commenced subject to 
the CROP. Note, too, that the CROP only creates a set of procedures for 
use in the exercise of some of EPA's statutory enforcement authorities, 
and neither extends nor limits the substantive jurisdiction of the 
Agency. Many provisions of the CROP reflect policy choices by the 
Agency to exercise less than the full scope of its statutory and 
constitutional authority (e.g., extending to 30 days the deadline for 
all answers (Sec. 22.15), procedures for issuance of default orders 
(Sec. 22.17)). As such, these limitations on the Agency's authority 
apply only in proceedings under the CROP, and the Agency may modify 
these requirements in future rulemakings.
    Section 22.01(a)(2): The CROP would be expanded to include field 
citation proceedings under 42 U.S.C. 7413(d)(3), as discussed above. 
Part 22 currently applies to penalty proceedings under section 
7413(d)(1), and the proposed revision would expand the scope to include 
all of section 7413(d).
    Section 22.01(a)(3): A reference to 33 U.S.C. 1415(f) inadvertently 
omitted from the 1980 CROP is added for clarity and consistency.
    Section 22.01(a)(4): This paragraph is revised to clarify which 
sections of the Solid Waste Disposal Act (SWDA) authorize the various 
proceedings. The scope is expanded by inclusion of proceedings to 
suspend or revoke a permit under sections 3005(d) and 3008(h) (42 
U.S.C. 6925(d) and 6928(h)) as proposed in the Agency's December 11, 
1996, proposal noted above (60 FR 65280). The scope is also expanded to 
include assessment of administrative civil penalties under 42 U.S.C. 
6961 within the CROP. Reference to 42 U.S.C. 6992d is deleted, because 
the demonstration program for medical wastes and its accompanying 
regulations (40 CFR part 259) expired on July 22, 1991. The scope is 
revised to clarify that the CROP applies to the issuance of compliance 
orders under section 3008(a) or section 9006(a) of the SWDA (42 U.S.C. 
6928(a) or 6991e(a)).
    Additionally, the paragraph would be revised to specify that the 
CROP is applicable to both the assessment of civil penalties and the 
issuance of compliance orders pursuant to section 4005(c)(2) of the 
SWDA (42 U.S.C. 6945(c)(2)). That section, enacted as part of the 1984 
Hazardous and Solid Waste Amendments, authorizes EPA to enforce the 
Subtitle D prohibition against open dumping in certain circumstances. 
Although section 4005(c)(2) refers to the enforcement authorities 
available under section 3008, the proposed revision would clarify that 
the CROP would apply to these actions.
    The procedures governing most SWDA corrective action orders appear 
at 40 CFR part 24, but under certain circumstances the CROP may apply. 
A new subparagraph (B) would clarify that the CROP generally does not 
apply to SDWA section 3008(h) corrective action orders, but only to 
those that are part of a proceeding commenced under the CROP for claims 
under section 3008(a), to suspend or revoke authorization to operate 
under section 3005(e), or for penalties for non-compliance with a 
section 3008(h) order. A new subparagraph (C) would clarify that the 
CROP procedures generally do not apply to corrective action orders 
authorized under SWDA section 9003(h)(4) (42 U.S.C. 6991b(h)(4)), 
except where the Agency includes such orders in a complaint seeking 
civil penalties pursuant to section 9006. All other corrective action 
orders are subject to the part 24 procedures.
    Section 22.01(a)(5): A reference would be added to include 
proceedings to assess civil administrative penalties pursuant to 
section 207 of the Asbestos

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Hazard Emergency Response Act (``AHERA''), codified as Title II of the 
Toxic Substance Control Act, 15 U.S.C. 2647. The CROP was amended June 
5, 1989, to add Sec. 22.47, a supplemental rule governing 
administrative penalty proceedings under AHERA section 207, however, 
there was no corresponding amendment to Sec. 22.01(a). 54 FR 24112. The 
proposed revision would make clear that such proceedings are governed 
by the CROP.
    Section 22.01(a)(6): Section 4301(b) of the Oil Pollution Act of 
1990 amended section 311(b)(6) of the CWA to allow administrative 
penalty proceedings. This proposed rule would expand the scope of the 
CROP to include proceedings to assess administrative civil penalties 
under section 311(b)(6). The limitation to Class II proceedings would 
be dropped from the scope, requiring use of the CROP for non-APA Class 
I proceedings as well as Class II penalty proceedings, under both 
sections 309(g) and 311(b)(6) of the CWA. Special provisions regarding 
the non-APA Class I proceedings would appear in subpart I of the CROP. 
The proposed revision of Sec. 22.01(a)(6) also reflects the addition of 
proceedings to terminate a permit issued under section 402(a) of the 
CWA, as proposed in the December 11, 1996 FR notice discussed above. 60 
FR 65,268. Pursuant to that proposed rule, the existing part 124 
procedures for terminating permits would be supplanted by the CROP.
    Section 22.01(a)(9): A reference would be added to include 
proceedings for the assessment of civil administrative penalties under 
42 U.S.C. 1423(c) and 1447(b) within the scope of the CROP. A further 
reference would be added regarding the issuance of any order requiring 
both compliance and the assessment of a civil penalty under 42 U.S.C. 
1423(c). These references reflect the amendments to the Safe Drinking 
Water Act, Public Law 104-182, 110 Stat. 1613 (1996), which affect 
administrative penalty assessment against public water systems and 
federal facilities.
    Section 22.01(a)(10): A reference would be added to include 
proceedings for the assessment of civil penalties or the issuance of 
compliance orders under section 5 of the Mercury-Containing and 
Rechargeable Battery Management Act (42 U.S.C. 14304). The Mercury-
Containing and Rechargeable Battery Management Act would phase out the 
use of mercury in batteries and provide for the efficient and cost-
effective collection and recycling or proper disposal of batteries 
regulated under the Act. Section 5 of the Act authorizes administrative 
enforcement for violations of the Act, except for section 104 of the 
Act, which is enforceable under the Solid Waste Disposal Act.
    Section 22.01 (b): A reference would be added to include the new 
subpart I, and to provide that subpart H or I provisions will supersede 
any conflicting provisions in subparts A--G.
    Section 22.01(c): This provision would be amended to empower the 
Environmental Appeals Board the authority to resolve procedural matters 
not covered in the CROP because it has been designated by the 
Administrator to perform this function.
3. Definitions
    Section 22.03(a): Surplus language would be deleted from the 
definition of ``Act''. No substantive change is intended.
    A definition of ``Business confidentiality claim'' would be added 
in order to specifically link the treatment of confidential business 
information (``CBI'') in CROP proceedings to the general provisions for 
CBI in 40 CFR part 2, subpart B. This amendment will clarify that the 
same protections that apply to use of CBI in other Agency actions will 
apply in proceedings under the CROP.
    A definition of ``Clerk of the Board'' would be added to identify 
the Clerk of the Environmental Appeals Board, who should receive 
service of pleadings and documents in matters pending before the Board.
    A definition of ``Commenter'' would be being added for purposes of 
administrative civil penalty actions under Section 309(g) of the Clean 
Water Act, Class II administrative civil penalty actions under Section 
311(b)(6) of the Clean Water Act, and for actions under Section 1423(c) 
of the Safe Drinking Water Act, in order to provide commenter 
procedures required by those Acts.
    The definition of ``Complainant'' would be revised to add 
references to the provisions covering commencement of a proceeding and 
the content and amendment of a complaint.
    The definition of ``Complaint'' would be deleted, as it is fully 
covered by the operative provisions of the rule at Sec. 22.14.
    The definition of ``Consent Agreement'' would be deleted, as it is 
fully covered by the operative provisions of the rule at 
Sec. 22.18(b)(2).
    The address of the Environmental Appeals Board would be deleted 
from its definition, as redundant with Sec. 22.30(a).
    The definition of ``Final Order'' would be clarified by 
specifically including Consent Orders issued pursuant to Sec. 22.18.
    The definition of ``Hearing Clerk'' would be amended to update the 
mailing address.
    The definition of ``Initial Decision'' would be expanded to include 
references to the operative sections of the CROP at Secs. 22.17(c), 
22.20(b) and 22.27, thereby distinguishing initial decisions from other 
decisions rendered by a Presiding Officer.
    The definition of ``permit'' would be expanded to include permits 
issued under Section 402(a) of the Clean Water Act and Section 3005(d) 
of the Resource Conservation and Recovery Act, consistent with the 
December 11, 1996, proposed rule (60 FR 65,268). As used in the CROP, 
the term ``permit'' would also apply to authority to operate under 
interim status pursuant to section 3005(e) of the Resource Conservation 
and Recovery Act.
    The definition of ``Presiding Officer'' would be clarified and 
amended to provide that, until an answer is filed, the Regional 
Judicial Officer serves as Presiding Officer. This change is one of 
form only, as Sec. 22.16(c) of the existing Rule allows the Regional 
Administrator or a delegate to rule on motions until an answer is 
filed, and in practice this authority is delegated to Regional Judicial 
Officers. The definition also would be amended to allow Regional 
Judicial Officers to preside in proceedings under subpart.
    The definition of ``Regional Administrator'' would be revised for 
clarity and to eliminate unnecessary language. EPA would delete from 
the existing rule the provision defining the term ``Regional 
Administrator'' to refer to the Environmental Appeals Board in cases 
commenced at EPA Headquarters. In the interests of clarity, the 
proposed revisions would specifically refer to the Regional 
Administrator where the CROP assigns responsibilities to the Regional 
Administrator, and to the EAB wherever the CROP assigns 
responsibilities to the EAB. Only one responsibility assigned to the 
Regional Administrators under the CROP would not also be assigned to 
the EAB for cases commenced at EPA Headquarters, which is the 
responsibility of designating Regional Judicial Officers. EPA does not 
anticipate any need to provide for a Regional Judicial Officer to 
preside in non-APA proceedings commenced at EPA Headquarters. EPA 
anticipates that it will use non-APA procedures primarily for cases 
expected to be routine and raising few, if any, new issues of law. EPA 
expects to rely on Administrative Law Judges to act as Presiding 
Officers in all cases initiated

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at EPA Headquarters, because current Agency plans do not call for EPA 
Headquarters to initiate significant numbers of routine cases or cases 
which raise no significant new issues of law. For the few instances 
where Headquarters-based Complainants seek to file non-APA cases, such 
cases could be filed with a Regional Hearing Clerk and adjudicated by 
the appropriate Regional Judicial Officer.
    The definition of ``Regional Hearing Clerk'' would be clarified as 
it pertains to cases initiated at EPA Headquarters. The Regional Office 
addresses now appear in Appendix A.
    Redundant language would be removed from the definition of 
``Regional Judicial Officer''.
    4. Roles of the Environmental Appeals Board, Regional Judicial 
Officer and Presiding Officer; disqualification, withdrawal, and 
reassignment.
    Section 22.04(a): The heading would be amended, and the entire 
section would be revised to clarify the roles of the Environmental 
Appeals Board, Regional Judicial Officers, and Presiding Officers in 
administrative enforcement proceedings under the CROP. The proposed 
changes better describe current practice. Paragraph (a) would be 
amended to clarify that the Administrator has delegated to the 
Environmental Appeals Board the authority to rule on appeals, and that 
in all cases except those in which the Environmental Appeals Board has 
referred a matter to the Administrator, appeals and motions must be 
directed to the Environmental Appeals Board to be considered. The word 
``direction,'' an uncorrected typographical error in the existing CROP, 
would be amended to ``discretion.''
    Section 22.04(b): The section would be amended to clarify the role 
and authority of the Regional Judicial Officer, to whom the authority 
to act in a given proceeding is delegated by the Regional 
Administrator. This authority includes acting as Presiding Officer in 
non-APA administrative enforcement cases, acting as Presiding Officer 
in APA cases prior to the filing of respondent's answer and request for 
a hearing, and approving settlements of proceedings under the CROP.
    EPA proposes to delete the prohibition that Regional Judicial 
Officers ``shall not be employed by the Region's Enforcement Division 
or by the Regional Division directly associated with the type of 
violation at issue in the proceeding'', because Regional 
reorganizations have made this language obsolete. EPA's Regional 
Offices currently have a variety of different organizational 
structures, and these organizational structures may continue to evolve. 
Accordingly, EPA proposes to substitute a more generally applicable 
requirement which makes no mention of organizational structures: The 
Regional Judicial Officer shall not ``have any interest in the outcome 
of'' any case in which he or she serves as Regional Judicial Officer. 
EPA interprets this clause broadly, as prohibiting anyone who has any 
financial interest, personal interest, or career interest in the 
outcome of the action from serving as Regional Judicial Officer. EPA 
believes this should provide the Regional Judicial Officers sufficient 
independence to conduct a fair hearing, because in EPA's experience no 
Regional Judicial Officer has been subject to improper influence by 
Agency officials. The limitation placed on the Regional Judicial 
Officer regarding any ``factually related hearing'' also would be 
deleted, because the Agency believes it improper to disqualify a 
Regional Judicial Officer merely because that person has participated 
in a hearing where similar facts were at issue.
    EPA intends that the Regional Judicial Officers should be, and are 
in fact, fully independent of improper influence. Nevertheless, EPA 
requests suggestions as how this independence should be described in 
Sec. 22.04(b). Commenters should be cognizant of the fact that the EPA 
employees who serve as Regional Judicial Officers will have duties 
other than acting as Regional Judicial Officer, because workloads do 
not generally warrant exclusive assignments to that position. One 
possible alternative to the language proposed would be a mandate that a 
Regional Judicial Officer ``shall not be directly supervised by any 
person who directly supervises the prosecution of the case.'' Such a 
requirement would provide a more definite standard than the standard 
that is proposed, however it would be at odds with Agency's reinvention 
efforts to remove layers of management, minimize institutional 
barriers, promote cross-media training and promote multimedia 
enforcement.
    Section 22.04(c): Surplus language would be deleted. No substantive 
change is intended by this revision.
    Section 22.04(d): Several clarifications are made by deleting 
surplus and confusing language. The proposed rule would require parties 
to first request that a Regional Administrator, a member of the 
Environmental Appeals Board, or the Presiding Officer disqualify 
himself or herself before requesting that a higher Agency official 
disqualify that person. Although requests for disqualification are very 
rare, the proposed rule would reduce unnecessary delay and burdens by 
requiring that requests for disqualification first be made directly to 
the person whose disqualification is sought. If the request is denied, 
then the reviewing official would have more information upon which to 
base a ruling than if the initial request were made directly to the 
reviewing official. The proposed rule would also authorize the 
Environmental Appeals Board, rather than the Administrator, to review 
requests for disqualification of Regional Administrators and Presiding 
Officers. If a motion to disqualify a member of the Environmental 
Appeals Board is denied, a party may appeal that ruling to the 
Administrator.
    EPA also requests comment on another possible change in the 
disqualification procedures which is not included in the text of the 
proposed rule published today. Under the proposed rule, both the 
interlocutory appeal procedures of Sec. 22.29 and the procedures for 
appeal of an initial decision at Sec. 22.30 would apply where a 
Presiding Officer denies a motion for disqualification. EPA is 
considering a prohibition on interlocutory appeals of motions for 
disqualification, in order to avoid unnecessary delay. After issuance 
of an initial decision, the parties would still have the right of 
appealing any adverse ruling or order of the Presiding Officer, 
including a refusal to disqualify himself or herself, pursuant to 
Sec. 22.30. This change would make the CROP consistent with Federal 
court practice. See 28 U.S.C. 1292 (decisions regarding 
disqualification not included in the interlocutory review authority of 
the Courts of Appeals), U.S. v. Gregory, 656 F.2d 1132, 1136 (5th Cir. 
1981) (interlocutory review of disqualification decision not 
available), Dubnoff v. Goldstein, 385 F.2d 717, 721 (2d Cir. 1967)(``A 
determination of a District Judge not to disqualify himself is 
ordinarily reviewable only on appeal from a final decision on the 
[underlying cause of action].''). The Agency requests comment on this 
potential revision of the CROP.
5. Filing, Service, and Form of Pleadings and Documents; Business 
Confidentiality Claims
    Section 22.05: The heading would be revised to include business 
confidentiality claims.
    Section 22.05(a): The paragraph would be revised to clarify that 
the original and a copy of each pleading or other document intended to 
be part of the record of the proceeding shall be filed with the 
Regional Hearing Clerk or Clerk of the Environmental Appeals Board. 
Providing both an original and a copy makes it easier for the hearing

[[Page 9468]]

clerks to maintain both a record file and a public viewing file, in 
order to assure public access without risk of altering the official 
record. The paragraph also would be revised to clarify when a pleading 
or document is ``filed.'' Requirements regarding service, as distinct 
from filing, are deleted from Sec. 22.05(a)(2) and moved to 
Sec. 22.05(b); the remaining sentence concerning certificates of 
service would be renumbered as Sec. 22.05(a)(3). The existing 
Sec. 22.05(a)(3) would be renumbered Sec. 22.05(a)(2), and surplus 
language deleted. The Agency solicits comments on whether electronic 
filing and service should be allowed, and if so, under what conditions.
    Section 22.05(b): The paragraph would be amended to consolidate and 
clarify service requirements, and to require a copy of each pleading or 
document to be served on the Presiding Officer. In paragraph (b)(1), 
the provisions regarding service of the complaint are changed to 
clarify who must be served when serving a natural person, a domestic or 
foreign corporation, a partnership or unincorporated association, an 
officer or agency of the United States, a state or local unit of 
government or a state or local officer, agency, department, corporation 
or other instrumentality. The proposed rule allows service of the 
complaint by any reliable commercial delivery service that provides 
written verification of delivery.
    Paragraph (b)(2) would be amended to allow service of all pleadings 
and documents other than the complaint by any reliable commercial 
delivery service. The provision regarding mail would be revised to 
reflect the fact that both certified mail and return receipt requested 
are varieties of first class mail. The phrase ``pleadings and 
documents'' is used here and throughout the proposed rule to include 
all filings by the parties. The heading would be amended to reflect the 
change.
    Section 22.05(c): Paragraph (c)(2) would be changed to require more 
information on the first page of every pleading and to require tables 
of contents and tables of authorities for all legal briefs and 
memoranda greater than twenty pages in length (excluding attachments) 
to simplify processing and review. Grammatical changes and 
clarifications are made in paragraphs (c)(3) and (4). In paragraph 
(c)(5), the provision which allowed Hearing Clerks to determine the 
adequacy of documents would be deleted, leaving that authority solely 
with Presiding Officers or the Environmental Appeals Board.
    Section 22.05(d): A new paragraph would be added to specify the 
treatment of information claimed as Confidential Business Information 
(``CBI'') in documents filed in CROP proceedings, and to link that 
treatment with the CBI rules of 40 CFR part 2, subpart B. The purpose 
is to facilitate the use of CBI as evidence while appropriately 
preserving the confidentiality of the information. Paragraph (d)(1) 
provides that any business confidentiality claim shall be made in the 
manner prescribed by 40 CFR 2.203(b). A person who files a document 
with a Regional Hearing Clerk without making such a claim places that 
document in the public record, where it is available to the public for 
inspection and copying pursuant to Sec. 22.09. After a document has 
been placed in the public record, a subsequent claim of confidentiality 
will not be effective. This clarifies the obligations of the claimant 
and makes clear which procedures to follow, as well as the consequences 
for failure to follow these procedures.
    Paragraph (d)(2) describes in more detail how pleadings or 
documents containing information claimed confidential are to be filed 
with the Regional Hearing Clerk, and the contents of such documents, in 
order to assure that such documents are properly filed and the 
information within such documents protected. The requirement that 
parties file two versions of pleadings or documents, one containing the 
information claimed confidential and a second redacted version, does 
not preclude a party from filing a single document that merely 
references, without disclosing, confidential information filed in 
earlier documents.
    Paragraph (d)(3) describes the procedures for service of pleadings 
of documents containing claimed-confidential information on the 
Presiding Officer, complainant, parties, amici, or representatives 
thereof authorized to receive confidential information, and makes clear 
that only a redacted version of any pleading or document may be served 
on a party, amici, or other representative thereof not authorized to 
receive the confidential information. Paragraph (d)(4) provides that 
only the redacted version of a pleading or document with claimed-
confidential information will become part of the public record, and 
further provides that an EPA officer or employee may disclose 
information claimed confidential only as provided by 40 CFR part 2.
6. Filing and Service of Rulings, Orders and Decisions
    Section 22.06: The requirements regarding service of rulings, 
orders and decisions have been changed to allow the more flexible 
service of these documents by first class mail or any reliable 
commercial delivery service. References to the Regional Judicial 
Officer are deleted as surplusage.
7. Computation and Extension of Time
    Section 22.07: In paragraph (a), ``holidays'' would be clarified to 
mean federal holidays. Paragraph (b) would be revised to require that 
any motion for an extension of time be filed sufficiently in advance of 
the due date so as to allow other parties the opportunity to respond 
and to allow the Presiding Officer or the EAB reasonable opportunity to 
issue an order. The reference to ``the Regional Administrator'' would 
be deleted as surplusage. In paragraph (c), the ``mail box'' rule for 
service would be expanded to encompass the other reliable commercial 
delivery services authorized in Sec. 22.05(b). Under the proposed 
revision, as under the existing CROP, it is implicit that personal 
service is complete upon personal service, without need for a signed 
receipt.
8. Ex Parte Discussion of Proceeding
    Section 22.08: New language would be included to explicitly allow a 
decision maker who has formally recused himself from all adjudicatory 
functions to engage in ex parte functions. For purposes of this 
provision, the Agency would consider the approval of consent agreements 
and issuance of consent orders to be adjudicatory functions.
9. Examination of Documents Filed
    Section 22.09: Extraneous language would be deleted and the 
reference to waiver of costs for duplication of documents would be 
clarified.
10. Intervention and Amicus Curiae
    Section 22.11: The section heading would be amended to include 
amicus curiae motions. Paragraph (a)(1) would be amended to more 
specifically describe the process for intervening, and would make the 
standard for intervention equivalent to the standard used in the 
Federal courts, Rule 24(a)(2) of the Federal Rules of Civil Procedure. 
The final sentence in paragraph (c) of the existing CROP (``The 
intervenor shall become a full party to the proceeding upon the 
granting of leave to intervene.'') is intentionally omitted. This would 
grant the Presiding Officer the discretion to allow an intervenor to 
become a party as to part, but not all, of a proceeding. An additional 
five days is given to file a response to a motion to intervene, for 
consistency with proposed changes to Sec. 22.16. The

[[Page 9469]]

changes to paragraph (a) permit the deletion of paragraphs (c) and (d). 
Paragraph (b) describes the procedures for motion for leave to file an 
amicus brief, and fifteen days is given to file a response to an amicus 
brief. EPA requests comment as to the appropriateness of these 
intervention provisions.
11. Consolidation and Severance
    Section 22.12: The phrase ``by motion or sua sponte'' would be 
deleted as surplusage, and perhaps confusing to persons not trained in 
the law. No substantive change is intended by this revision. Paragraph 
(a) would be amended to clarify that proceedings brought pursuant to 
the non-APA procedures of subpart I may be consolidated with an action 
brought under the APA procedures. This paragraph prohibits the use of 
the non-APA procedures for hearing any action which is the result of a 
consolidation of an APA proceeding and non-APA proceeding. Under these 
circumstances, only the APA procedures of the CROP (subpart A--H) are 
appropriate.
    The Agency considered, but rejected as unnecessary, expressly 
prohibiting under Sec. 22.12 the consolidation of actions if such 
consolidation could result in the total penalty exceeding any 
applicable cap on penalty amounts. The existing language is sufficient 
to prevent consolidation in such circumstances because such a result 
would ``adversely affect the rights of parties engaged in otherwise 
separate proceedings.''
12. Commencement of a Proceeding
    Section 22.13: The heading would be amended, and the section 
revised, to clarify how an administrative enforcement proceeding is 
commenced. For cases where pre-commencement negotiations result in 
settlement of a cause of action, paragraph (b) would provide for the 
simultaneous commencement and conclusion of a case upon the issuance of 
a consent order (provided that, in accordance with Sec. 22.18(b)(2), 
the consent agreement contains that information required in a complaint 
set forth in Sec. 22.14(a)(1)-(3)). Negotiations with alleged violators 
prior to the formal filing of a complaint may in some cases lead to 
more efficient and expeditious resolution of cases. See, e.g., 
Executive Order No. 12778 on Civil Justice Reform (56 FR 55195, October 
25, 1991). Where such negotiations are productive, the filing of a 
consent agreement and consent order would be sufficient to commence a 
case, and requiring a separate filing of a complaint would merely waste 
paper. In cases subject to the Clean Water Act or Safe Drinking Water 
Act public comment provisions, this streamlined approach would not 
permitted. The original language of this section would be deleted as 
duplicative of the statutory authorizations to commence proceedings.
13. Complaint
    Section 22.14: EPA proposes to consolidate paragraphs (a) and (b) 
of the existing CROP into a single paragraph governing the content of 
all complaints for assessment of civil penalties, for revocation, 
termination or suspension of permits, and for compliance and corrective 
action orders. As used here and in Secs. 22.17 and 22.27, ``compliance 
or corrective action order'' includes orders requiring immediate 
compliance or corrective action, and orders establishing schedules for 
compliance or corrective action within a specified period of time.
    Paragraph (a)(4) would be amended to present in a single paragraph 
the content requirements for all complaints, whether they seek 
penalties, compliance or corrective action orders, or permit actions. 
New language would expressly permit the filing of a complaint without 
specifying in the complaint the precise penalty sought, as an 
alternative to pleading a specific penalty. Where complainant elects 
not to demand a specific penalty in the complaint, complainant is 
nonetheless obligated to provide a brief explanation of the severity of 
each violation alleged and a citation to the statutory penalty 
authority applicable for each violation alleged in the 
complaint.1 This notice pleading option would provide the 
Agency with added flexibility in issuing a complaint under 
circumstances where only the violator possesses information crucial to 
the proper determination of the penalty, for example, the economic 
benefit the violator derived from its noncompliance or the effect of a 
penalty on its ability to remain in business. Complaints following the 
notice pleading approach would give respondents in administrative 
enforcement proceedings at least as much notice of their potential 
liability as they would receive in most enforcement proceedings filed 
in the Federal courts. Complementary changes to Secs. 22.17(b) and 
22.19(a) assure that, where the Agency employs this notice pleading 
approach, the Agency will specify a penalty demand in its prehearing 
information exchange and in any motion for default. As is the case in 
judicial enforcement proceedings, this notice pleading option is fully 
compatible with the Agency's long-standing practice of working with 
respondents toward a fair resolution of enforcement actions.
---------------------------------------------------------------------------

    \1\ For example, a citation to the statutory penalty authority 
might state the following: ``For the violations alleged herein, in 
accordance with 15 U.S.C. 2615(a), complainant seeks a penalty of up 
to $25,000 for each day the violations continue, taking into account 
the nature, circumstances, extent, and gravity of the violation, 
and, with respect to the violator, ability to pay, effect on ability 
to continue to do business, any history of prior such violations, 
the degree of culpability, and other matters as justice may 
require.''
---------------------------------------------------------------------------

    Paragraph 22.14(a)(5) would combine the right-to-hearing provisions 
presently in Sec. 22.14 (a)(6) and (b)(6), as well as new language to 
accommodate hearings on the appropriateness of proposed compliance or 
corrective action orders. The sentence requiring a copy of the CROP to 
accompany each complaint served would be deleted and placed in a 
separate Sec. 22.14(b). The requirement of Sec. 22.14(a)(5) in the 
existing CROP would be moved to Sec. 22.14(a)(4)(i). Paragraph (a)(6) 
would require the complainant to specify in the complaint whether the 
non-APA procedures in subpart I shall apply to the proceeding. If a 
complaint does not contain an explicit statement that subpart I 
applies, the ensuing proceeding shall be conducted in conformance with 
section 554 of the APA.
    The original paragraph (b) would be merged into the new paragraph 
(a). The revised paragraph (b) would contain the requirement, currently 
in Sec. 22.14 (a)(6) and (b)(6), that a copy of the CROP accompany each 
complaint.
    The text originally in paragraph (c) would be deleted, and 
subsequent provisions renumbered so that the text presently in 
Sec. 22.14(d) would appear in 22.14(c), with minor changes. The 
existing provision would be deleted to avoid the possibility of 
conflict with the notice pleading option proposed under 
Sec. 22.14(a)(4)(ii). The Agency's proposed deletion of this provision 
does not signal any general intent to abandon applicable penalty 
pleading policies. The Agency's penalty authority remains subject to 
any statutory penalty criteria, regardless of changes to the CROP, so 
deletion of the existing paragraph (c) should have no substantive 
effect on the penalties that would be assessed.
    Paragraph (d) would contain the provision presently in paragraph 
(e), with minor revisions. The Agency considered, but is not proposing, 
language specifically allowing the withdrawal of a complaint without 
prejudice, because such language is not necessary. The existing 
language of this section does not establish a specific standard that 
the Presiding Officer must apply when considering a motion to withdraw 
a complaint without

[[Page 9470]]

prejudice, and so, the ``good cause'' standard generally applicable to 
motions applies. The good cause standard would allow withdrawal of a 
complaint without prejudice in circumstances where, for example, 
information obtained after the commencement of the case indicates that 
the proper penalty should exceed an applicable penalty cap, thereby 
allowing the Agency to refile the case in a forum that would permit 
assessment of the proper penalty.
14. Answer
    Section 22.15: The requirements for filing and serving copies of an 
answer are clarified in paragraph (a). Also, the time allowed for the 
filing of an answer would be changed from 20 days to 30 days. RCRA, the 
SDWA, and the CWA authorize 30 days to file an answer. The discrepancy 
between these statutory authorities and Sec. 22.15 has caused 
confusion, particularly in cases involving alleged violations of more 
than one statute (multimedia cases), as to which time limitation 
applies to the overall cause of action. To avoid any potential 
conflict, for all causes of action, the requirement would be changed to 
allow answers to be filed within 30 days of service of the complaint. 
EPA proposes to add to paragraph (b) a new clause requiring that the 
answer state the basis for opposing any proposed penalty, compliance or 
corrective action order, or permit revocation, termination or 
suspension. This requirement would not add significantly to 
respondents' existing burdens, as it is both consistent with good 
pleading practice and implicit in the existing rule. Paragraph (c) 
would be rewritten for clarity. No substantive change is intended.
15. Motions
    Section 22.16: Paragraph (a) would be revised to place explicit 
limits on motion practice and to provide a common understanding that 
the routine practice shall be the filing of a motion, a response and a 
reply, without any further briefing. Any further responsive documents 
concerning the motion would be allowed only by order of the Presiding 
Officer or EAB. The present CROP is silent as to whether additional 
briefing or argument is permitted after the filing of a response to a 
motion. To the extent that such replies are presently allowed, there is 
no limit on the time for filing a reply, nor any limit to the total 
number of replies. With an endless series of replies possible, neither 
the Presiding Officer nor the parties can be sure when a motion is ripe 
for decision.2 The proposed amendments are intended to 
establish more control over motion practice in an effort to simplify 
the proceeding, and to reduce delays and litigation costs. EPA believes 
that a motion-response-reply structure is both necessary and sufficient 
to present the issues fully for the Presiding Officer. The proposed 
rule specifically provides the movant an opportunity for a reply 
because responses to motions often raise issues not addressed in the 
motion itself. The proposed rule then limits the scope of the reply to 
those issues raised in the response, in order to avoid giving an unfair 
advantage to the movant. For those instances where this motion-
response-reply format may not be appropriate, the Presiding Officer may 
order an alternative approach.
---------------------------------------------------------------------------

    \2\ See, e.g., In the Matter of McLaughlin Gormley King, et al., 
Docket Nos. FIFRA 94-H-10 through 94-H-15, where a motion to dismiss 
was followed by a response, a reply, a sur-reply, a supplemental 
reply, and a second sur-reply.
---------------------------------------------------------------------------

    The proposed rule would amend paragraph (b) to expand the time for 
filing a response to a motion from 10 days to 15 days. EPA anticipates 
that this change will improve the quality of the responses, better 
clarifying the issues and thereby promoting judicial economy. The 
proposed rule also would allow 10 days for the filing of a reply, 
reflecting the fact that the movant has already had an opportunity to 
anticipate possible objections to its motion and that somewhat less 
time should be needed to address such new issues as might be raised in 
the response. The clause pertaining to extensions of time would be 
deleted as redundant with Secs. 22.07(b) and 22.04(c).
    Paragraph (c) would be revised to clarify who renders decisions at 
the different stages of a proceeding. The provision concerning oral 
argument on motions would be deleted from this section and placed in a 
separate Sec. 22.16(d), and expanded to acknowledge that Presiding 
Officers, as well as the EAB, have the discretion to order oral 
argument on motions.
16. Default
    Section 22.17: The heading would be changed, and the entire section 
reorganized, for purposes of clarity. Paragraph (a) would describe how 
a party may be found in default, and the consequences of such a 
finding. The provisions in the current paragraph (a) describing when 
penalty monies come due, or when a permit revocation, termination or 
suspension becomes effective, would be moved to paragraph (d).
    New paragraph (b) addresses content requirements for motions for 
default. It includes a requirement that 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 must put into the record the legal and factual grounds for 
the relief requested. This amendment accommodates the changes made in 
Sec. 22.14, above, and provides for those instances in which the 
complaint does not contain a specific penalty proposal.
    Paragraph (c) would be revised to describe the default order 
itself. It would provide that a default order shall be an initial 
decision, and treated in all respects under the CROP as an initial 
decision. Paragraph (c) would result in one substantive change rules 
regarding default orders, in regard to the standards for granting 
relief. Section 22.17(a) of the existing rule appears to require that a 
default order automatically assess the penalty proposed in the 
complaint, or automatically revoke or terminate the permit according to 
the conditions proposed in the complaint. The proposed revision would 
remove this apparent restriction on the Presiding Officers' discretion 
so that they may assure that the relief ordered is supported by the 
administrative record. In order to make it clear that supporting the 
relief proposed in a default case should be less burdensome on the 
Agency than it would be if the respondent chose to contest the case, 
the language of the revised paragraph (c) would require that the 
Presiding Officer grant the relief requested unless the record clearly 
demonstrates that the requested relief is inconsistent with the Act. 
The Agency would still be required to make a prima facie case in regard 
to the appropriateness of the proposed relief, as well as in regard to 
liability. The proposed change would not affect determinations of 
liability in default, which would remain subject to the ``preponderance 
of the evidence'' standard of Sec. 22.24.
    Subsection (d) would describe the respondent's obligations once 
default has been entered regarding payment of any penalty, revocation, 
termination or suspension of any permit, and compliance or corrective 
action requirements. The existing rule does not describe or explain 
these sanctions, and the Agency believes therefore that these new 
provisions provide additional clarity and information to a potentially 
defaulting party, and make much more clear the consequences of default. 
The existing rule requires payment of the penalty within 60 days after 
the default order was issued. This conflicts with the

[[Page 9471]]

Federal Claims Collection Standards, which require payment within 30 
days after the date the order was issued, unless EPA decides an 
extension is appropriate. See 4 CFR 102.13(g). The proposed rule 
therefore requires payment within 30 days after the date the default 
order becomes final.
17. Quick Resolution; Settlement; Alternative Dispute Resolution
    Section 22.18: This section would be substantially revised to 
provide expedited resolution procedures, and to clarify the process and 
effect of formal settlements. Paragraph (a) would provide a quick 
resolution process, whereby a respondent can bring the case to a close 
at any time simply by paying the amount proposed in the complaint. Any 
respondent wishing to resolve an action without filing an answer need 
only pay the proposed penalty within 30 days of receipt of the 
complaint. In cases where an answer has been filed, the respondent may 
resolve the action by paying the penalty proposed in the complaint. 
This will provide respondents the option of resolving minor and 
uncontested violations without engaging an attorney, much in the manner 
of a parking ticket. EPA anticipates that this quick resolution 
procedure may be of particular interest to small businesses, and 
recognizing that small businesses may need additional time to raise 
cash to pay a penalty, the provision would allow respondents 60 days 
from receipt of the complaint to pay the penalty without having to file 
an answer. In order to exercise this option, a respondent would need to 
file a written statement within 30 days of receiving the complaint 
wherein respondent promises to pay the penalty in full within 60 days 
from receipt of the complaint.
    The commenter rights provisions of section 309(g) and 311(b)(6) of 
the Clean Water Act, and section 1423(c) of the Safe Drinking Water Act 
do not permit resolution of a case until the public has had opportunity 
to comment on the complaint. Commenters could provide information 
indicating that the violations are more serious than indicated in the 
administrative complaint. In order to give meaning to the public 
comment requirements, and to allow EPA the opportunity to act upon any 
such comments before resolution of a case, a respondent would not be 
permitted to take advantage of the quick resolution provision in a 
commenter-eligible action until ten days after the period for public 
comment has closed.
    Paragraph (b) would clarify the existing settlement process, and is 
divided into three paragraphs. The first paragraph (b)(1), concerning 
discussions of settlement, incorporates existing provisions with minor 
editorial changes, the most significant of which corrects a citation to 
Sec. 22.16 which should refer to Sec. 22.15. Paragraph (b)(2) would 
specify that consent agreements be in writing, and that they include 
all terms and conditions of settlement. The content requirements of a 
consent agreement are also clarified to include compliance order or 
corrective action requirements, and an express waiver of the 
respondent's right to a hearing and appeal of the consent order. This 
clarification is important, so that respondents enter into settlement 
agreements with a full understanding that an agreement to settle 
involves waiving rights to a hearing and rights of appeal. Paragraph 
(b)(2) also establishes additional content requirements for consent 
agreements in cases where the complainant proposes to simultaneously 
commence and conclude a case through filing of a consent agreement and 
consent order pursuant to Sec. 22.13(b), as a result of successful 
settlement through negotiations conducted before a complaint is issued. 
These additional content requirements should assure that the public 
record clearly identifies the causes of action upon which such cases 
are based. Paragraph (b)(3) would be revised to expressly provide that 
an administrative action is settled only when the Regional Judicial 
Officer or Regional Administrator, or, in cases commenced at EPA 
Headquarters, the Environmental Appeals Board, approves a consent 
agreement and issues a consent order. This provision is added to 
eliminate any uncertainty as to who has authority to conclude a 
proceeding.
    Paragraph (c) would provide that the effect of settlements and full 
payment of proposed penalties is limited to those facts and violations 
specifically alleged in the complaint, and reserves the Agency's right 
to pursue injunctive relief or criminal sanctions. These provisions 
merely make explicit the existing law of res judicata and claim 
preclusion, and reflect the Agency's routine practice in settlement of 
cases. The statutes authorizing administrative proceedings 
simultaneously define the limits of the Agency's jurisdiction in those 
proceedings to the assessment of penalties, the issuance of corrective 
action or compliance orders, or the revocation, termination or 
suspension of permits. None of the statutes administered by EPA grant 
to an administrative tribunal the authority to assess criminal 
sanctions or compel injunctive relief. Because the statutes authorizing 
administrative proceedings expressly limit the Agency's authority in 
those proceedings, the settlement of a proceeding commenced under part 
22 cannot limit the Agency's right to pursue relief that is beyond the 
scope of part 22. See generally Restatement (Second) of Judgments 
Sec. 83 comment g (1982). Accordingly, adding this provision to the 
CROP does not significantly alter respondents' rights.
    Paragraph (d) would recognize use of alternative dispute resolution 
proceedings. The Agency encourages use of alternative dispute 
resolution in appropriate circumstances, both as a fair means of 
resolving enforcement actions and as a method of reducing transaction 
costs for all parties. The designation of a neutral (who would not be 
the Presiding Officer) would not divest the Presiding Officer of 
overall responsibility for the case. The Presiding Officer would retain 
during dispute resolution proceedings all of the powers and duties 
assigned under Sec. 22.04(c), including the authority to bring the case 
to hearing if circumstances so warrant. The Agency has considered 
including language specifying the impact of dispute resolution 
proceedings on deadlines, but instead proposes to leave this to the 
discretion of the Presiding Officer. As needed, the parties may request 
temporary stays of proceedings and extensions of deadlines.
    Other requirements of the CROP (e.g., the consent agreement and 
consent order provisions of Sec. 22.18(b), the ex parte prohibitions of 
Sec. 22.08, the public comment provisions of Sec. 22.38) also would 
continue to apply, notwithstanding any dispute resolution process.
18. Prehearing Information Exchange; Prehearing Conference; Other 
Discovery
    Section 22.19: EPA proposes to substantially restructure and revise 
this section for ease of use and to make information exchange more 
timely and efficient. Paragraphs (a) and (b) would be reversed in order 
from the existing CROP, reflecting the fact that information exchange 
is more common than, and usually precedes, a prehearing conference. The 
Agency proposes to expand the scope of the standard prehearing 
information exchange in order to expedite resolution of cases.
    The requirements for prehearing exchange would now appear in 
paragraph (a). In addition to the information required to be exchanged 
under Sec. 22.19(b) of the existing CROP, EPA proposes that each party 
should be required to exchange all information it considers relevant to 
the assessment of

[[Page 9472]]

a penalty. This provision would apply whether or not the complainant 
identifies a specific penalty in the complaint. In addition, for 
penalty cases where the complainant has not specified a penalty in the 
complaint, the proposed rule would require that the complainant shall 
specify a proposed penalty and state the basis for that proposed 
penalty. EPA requests comment on whether it is necessary for 
complainant to specify a proposed penalty in prehearing exchange. As 
noted above, EPA has proposed to allow notice pleading under 
Sec. 22.14(a)(4)(ii) in order to allow EPA to issue complaints even 
where it is unable to obtain information from the violator which is 
necessary to confidently determine the appropriate penalty. Although 
EPA anticipates that respondents will provide such information during 
the course of settlement discussions, it is possible that in some cases 
the necessary information will not be available until respondent 
submits its prehearing exchange, or even later. If the complainant is 
in no better position to propose a penalty at prehearing exchange than 
it was at the time it filed the complaint, there is little value to 
such a requirement. EPA requests comment on the utility of this 
requirement, and on the merits of allowing complainant to postpone for 
an additional 30 days, or indefinitely, the making of a specific 
penalty demand.
    EPA's proposal would change the rules regarding the exchange of 
witness lists and documents in order to facilitate supplementing and 
amending prehearing exchange prior to hearing. In so doing, the 
proposed rule would make more clear the distinction between the filing 
of prehearing exchange and the admission of information into evidence. 
In order to prevent undue burden and delay caused by last minute 
supplements or amendments of the prehearing information exchange, the 
Agency considered proposing restrictions on amendments to prehearing 
exchange within 30 days of the hearing date. The Agency instead 
proposes that all barriers to amending prehearing exchange should be 
dropped in the interest of full and complete exchange of information 
between the parties (see Sec. 22.19(f)), and proposes under 
Sec. 22.22(a) to tighten the standards for admitting into evidence 
information that was not timely exchanged.
    The Agency requests comment on the merits of requiring by rule that 
the parties simultaneously perform their prehearing information 
exchange 90 or 120 days after the filing of the answer. Making 
prehearing exchange automatic, rather than dependent on assignment of 
an ALJ and on the ALJ's issuance of an prehearing exchange order, could 
expedite administrative practice and move cases to a more rapid 
resolution. Although an early deadline could prompt the parties to 
focus intently on settlement at the earliest stages of a proceeding, it 
could also lead to wasted resources if parties were compelled to submit 
voluminous prehearing exchanges despite imminent settlements.
    The Agency has considered, but is not proposing, amendments 
concerning the timing of prehearing exchange. The Agency has considered 
the merits of requiring that complainant file its prehearing exchange 
before respondent, relative to the merits of requiring that prehearing 
exchange be made simultaneously by both parties. Allowing respondent to 
submit its prehearing exchange several weeks after receiving 
complaint's prehearing exchange might allow respondent to focus its 
prehearing exchange more narrowly on what it perceives to be the 
weakest points of the complainant's case, thereby conserving 
respondent's resources and clarifying the key issues in dispute. In 
contrast, the traditional, simultaneous prehearing exchange gives both 
parties equal incentive to settle before incurring the expense and 
effort of preparing the exchange. Staggering the prehearing exchange 
creates a disparate incentive, such that the party designated to make 
the later exchange may adopt a ``wait-and-see'' attitude, preferring to 
review the papers of the party designated to submit first before 
accepting a settlement offer it knows to be in its best interest or 
before even engaging in serious settlement discussions. In this manner, 
sequential prehearing exchange can delay or even impede settlement, and 
causes the lead party to incur unnecessary expenditures of resources. 
EPA believes that the disadvantages of sequential prehearing exchange 
outweigh the anticipated benefits in the great majority of cases.
    The disadvantages of a sequential prehearing exchange do not, 
however, compel the conclusion that prehearing exchange must 
necessarily be simultaneous in every case. There may be instances where 
the circumstances suggest that a case might be more expeditiously 
resolved if prehearing exchange were structured in some other manner. 
Accordingly, the Agency does not propose to make either simultaneous or 
sequential prehearing exchange the mandatory and exclusive option, but 
instead would continue to allow the Presiding Officer some discretion 
regarding the timing of the prehearing exchange required under this 
rule.
    Paragraph (b) would describe the purpose of any prehearing 
conference which may be held, and is substantially similar to paragraph 
(a) of the existing CROP. The revisions would no longer compel the 
Presiding Officer to require the parties to ``appear at a conference 
before him,'' but instead would make the nature of the conference more 
flexible.
    In paragraph (c), the phrase ``upon motion or sua sponte'' would be 
deleted as surplusage, and as potentially confusing. In paragraph (d), 
additional surplus language would be deleted. No substantive changes 
are intended. Paragraph (e) from the existing CROP would be deleted as 
surplusage, as Sec. 22.04(c) (5), (8) and (10) give the Presiding 
Officer ample authority in these matters.
    Under the proposed revisions, as well as the existing CROP, 
Sec. 22.19 is designed to streamline exchanges of information by the 
parties and to discourage dilatory tactics and unnecessary and time-
consuming motion practice. In contrast to the Federal Rules of Civil 
Procedure, a formal prehearing exchange of information is the primary 
vehicle of information exchange under the CROP. This prehearing 
exchange may be supplemented in certain cases by additional discovery 
pursuant to paragraph (e). In order to expedite the administrative 
hearings process, this other discovery is limited in comparison to the 
extensive and time-consuming discovery typical in the Federal courts.
    The proposed revisions to paragraph (e) would revise the process 
for seeking ``other discovery''. The proposed rule would require that 
the party seeking discovery must file a motion which ``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).'' By ``proposed discovery 
instruments,'' the Agency refers to the specific documents which would 
effectuate discovery if the Presiding Officer were to order the 
requested discovery (e.g., notices of deposition, depositions upon 
written questions, written interrogatories, requests for production of 
documents and things and entry upon land for inspection and other 
purposes, requests for admission).
    The proposed revisions would also refine the substantive standards 
for issuance of a discovery order. First, discovery motions would only 
be

[[Page 9473]]

authorized after completion of the prehearing information exchange 
mandated under paragraph (a), so that ``other discovery'' supplements, 
rather than supplants, prehearing exchange. Second, the prohibition 
against discovery which would unreasonably delay the proceeding would 
be expanded to prohibit discovery which would unreasonably burden the 
other party. The Agency believes that unnecessarily burdensome 
discovery is inappropriate even if such discovery would not delay a 
proceeding. Third, the proposed rule would clarify the existing 
requirement that discovery seeks ``information [that] has significant 
probative value'', by the addition of the clause ``on a disputed issue 
of material fact relevant to liability or the relief sought.'' This 
revision is intended to clarify, rather than change, the existing 
requirement. See, e.g., Chautauqua Hardware Corp., II EPCRA-90-0223, 
Order on Interlocutory Review slip op. at 12 (June 24, 1991) (``The 
phrase ``probative value'' denotes the tendency of a piece of 
information to prove a fact that is of consequence in the case.'')
    The Agency proposes to clarify the requirement in the existing rule 
that prohibits discovery where ``[t]he information to be obtained is 
not otherwise obtainable''. The phrase ``not otherwise obtainable'' has 
been the source of much litigation, and the Agency proposes to 
substitute instead a requirement that discovery is permissible so long 
as it ``[s]eeks information that is most reasonably obtained from the 
non-moving party, and which the non-moving party has refused to provide 
voluntarily''. This substitution should not substantively change the 
discovery standard, but instead make explicit the two most reasonable 
interpretations of ``not otherwise obtainable''. One reasonable 
interpretation of the ``not otherwise obtainable'' requirement is that 
parties should not resort to discovery until more collegial methods of 
obtaining information have been exhausted. The proposed change would 
effectively require a party to request voluntary disclosure of the 
information sought before seeking a discovery order. Another reasonable 
interpretation of ``not otherwise obtainable'' is that a party should 
not be burdened by discovery seeking information which is readily 
obtained through other sources (e.g., texts available in libraries or 
from the publishers, reports or materials available from other 
government agencies). If the rule did not encompass this interpretation 
of ``not otherwise obtainable'', it would unreasonably burden litigants 
by permitting discovery of all information that could be obtained 
through a party, or by completely prohibiting discovery of information 
that could be obtained from third parties. Instead, EPA proposes to 
limit discovery to ``information that is most reasonably obtained from 
the non-moving party''. Although this requirement would not eliminate 
litigation, it provides a more meaningful context than ``not otherwise 
obtainable'' for determining whether other discovery should be allowed.
    Paragraph (e)(2) of the proposed revision would expressly prohibit 
discovery of a party's settlement positions and information regarding 
their development, specifically including penalty calculations for 
purposes of settlement based on Agency settlement policies. This would 
make explicit a limitation that already exists under the current rule, 
as Sec. 22.19(f)(1)(iii) limits discovery to information that has 
``significant probative value'', and existing Sec. 22.22 prevents the 
introduction of evidence which would be inadmissible under Federal Rule 
of Evidence 408. Penalty proposals developed for settlement are offers 
of compromise which normally would be inadmissible under Federal Rule 
of Evidence 408 because they generally lack significant probative 
value, and in addition, because their admission would discourage 
settlement. In its administrative enforcement programs under the CWA 
and SDWA, the Agency utilizes the same settlement policies that it uses 
in judicial enforcement proceedings to determine the penalty amount the 
Agency would accept in settlement of a case. This has caused some 
confusion for respondents who are more familiar with the Agency's other 
administrative enforcement programs, which rely on penalty pleading 
policies, rather than settlement policies. The proposed rule would 
clarify that penalty calculations derived from a settlement policy, as 
opposed to calculations of proposed penalties from a penalty pleading 
policy, are not subject to discovery. This change would eliminate the 
potential for litigation on matters reserved for settlement 
discussions.
    The existing CROP provides that the Presiding Officer may order 
depositions upon oral questions only where additional conditions, over 
and above those applicable to discovery in general, are met. Paragraph 
(e)(3) of the revised CROP would maintain this higher standard, and 
clarify that these requirements are in addition to those of paragraph 
(e)(1).
    Additional conditions also apply to the issuance of a subpoena 
relative to other discovery, specifically, ``an additional showing of 
the grounds and necessity therefor.'' The standards for issuing 
subpoenas do not appear in Sec. 22.19 of the existing CROP, but 
instead, are repeated in six separate Supplemental rules. Paragraph 
(e)(4) of the proposed CROP consolidates this material, allowing 
elimination of several supplemental rules. This change does not expand 
or limit the authority of the Presiding Officer, nor does it authorize 
issuance of subpoenas except where authorized by the Act giving rise to 
the cause of action.
    Paragraph (e)(5) further clarifies that Freedom of Information Act 
(``FOIA'') requests, requests for admissions or stipulations, 
inspections, statutorily provided information collection requests, and 
administrative subpoenas issued by an authorized Agency official other 
than the Presiding Officer do not constitute discovery and are not 
restricted by the CROP. This revision does not change the CROP, because 
these activities have never been subject to a Presiding Officer's 
control. This provision should reduce uncertainty, and consequent 
litigation, by clarifying that these independent methods of information 
collection are wholly outside the Presiding Officer's authority.
    Paragraph (f) would impose on each party a duty to supplement or 
correct prior exchanges of information when the party learns that a 
prior exchange is deficient. As with the subsections already described 
above, this subsection is intended to reinforce the practice of full 
and complete voluntary information exchange in order to expedite 
proceedings and avoid unnecessary and costly motion practice. This 
subsection addresses situations where a party learns that a prior 
response is incorrect, inaccurate or outdated. It is not intended to 
impose a duty on any party to continually check the accuracy of prior 
responses, but does prohibit knowing concealment by a party. This 
provision would eliminate any procedural barriers to amending 
prehearing exchange, however, EPA also proposes at Sec. 22.22(a) that 
information that is not exchanged in a timely manner shall not be 
admitted into evidence. Moreover, failure to comply with a prehearing 
exchange order would still constitute grounds for issuance of a default 
order, notwithstanding these changes.
    Paragraph (g) clarifies that a failure of a party to provide 
information within its control pursuant to an order of the Presiding 
Officer may lead to an inference that the information sought

[[Page 9474]]

would be adverse to the non-exchanging party, to exclusion of the 
information from evidence, or to issuance of a default order. In the 
existing CROP, a version of this requirement applied to information 
provided through other discovery, but its applicability to information 
provided through prehearing exchange was unclear. The proposed rule 
expressly applies this requirement to all information exchanges, and 
expressly authorizes the additional sanction that information might be 
excluded from evidence.
19. Accelerated Decision; Decision to Dismiss
    Section 22.20: Several editorial changes are made to this section. 
No substantive change is intended.
20. Assignment of Presiding Officer; Scheduling the Hearing
    Section 22.21: Paragraph (a) would be revised to make it clear that 
the Chief Administrative Law Judge presides from the time an answer is 
filed until he or she assigns another ALJ. This would assure that there 
is a Presiding Officer at every stage of a proceeding.
21. Evidence
    Section 22.22(a): EPA proposes splitting this subsection into two 
paragraphs. Paragraph (a)(1) would addresses the admission of evidence 
into the record. It restates the existing standard, with only a minor 
editorial revision, and adds a new standard for exclusion of evidence 
which is not provided to opposing parties in a timely manner. It 
provides that the Presiding Officer shall not admit into evidence any 
document, exhibit, witness name or summary of expected testimony that 
has not been provided to all parties at least fifteen days before the 
hearing date, 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.
    Paragraph (a)(2) would address treatment of confidential business 
information (CBI), in conformance with the Agency's general 
confidentiality requirements. The 40 CFR part 2, subpart B provisions 
regarding treatment of CBI are cross referenced and other provisions 
are added to clarify how and when CBI may be used as evidence in a CROP 
proceeding. A significant substantive change would authorize the 
Presiding Officer to consider CBI evidence outside the presence of a 
party if necessary to preserve the confidentiality of the business 
information. While EPA expects that the Presiding Officers will seldom 
need to exercise this authority, experience has demonstrated the need 
for it. In In the Matter of Baker Performance, TSCA-91-H-08, a 
respondent charged with manufacture of chemical substances not listed 
in the TSCA inventory of existing chemical substances argued that the 
chemicals in question were identical to chemicals already listed on the 
confidential TSCA inventory by competitors. This posed a dilemma for 
EPA, forcing EPA to choose between revealing to the respondent its 
competitors' trade secrets in order to prove the violation, or else 
foregoing full enforcement. EPA chose in that case to accept settlement 
on relatively unfavorable terms rather than reveal the CBI. EPA 
believes that allowing the independent Administrative Law Judges the 
discretion to review confidential evidence outside the presence of a 
party in similar cases would strike an appropriate balance between the 
right of confrontation and the statutory mandates to protect 
confidential business information. Other changes have been made for 
clarity.
    Section 22.22(c): For clarity, EPA proposes that the term ``written 
testimony'' be substituted for ``verified statements''. As they are 
described in the existing paragraph (c), verified statements are in 
fact testimony, and differ from live testimony only to the extent that 
they are presented in written form. No substantive change is intended.
22. Objections and Offers of Proof
    Section 22.23(b): Surplus language would be omitted in the interest 
of clarity. No substantive change is intended.
23. Burden of Presentation; Burden of Persuasion; Preponderance of The 
Evidence Standard
    Section 22.24: EPA proposes to split this section into two 
subsections, one addressing burden of presentation and burden of 
persuasion, and another addressing the preponderance of the evidence 
standard. Paragraph (a) would revise the existing language to adopt a 
consistent terminology throughout its discussion of burden of 
presentation and burden of persuasion, and to encompass compliance 
orders and corrective action orders. The proposed rule would clarify 
that respondent bears the burden of persuasion in regard to affirmative 
defenses only, although it bears the burden of presentation regarding 
all defenses. These revisions are consistent with settled law and would 
not change respondents' burdens relative to the existing CROP. 
Paragraph (b) would consist of language from the existing CROP, without 
any change. The title of the section would be amended to aid readers in 
locating the preponderance of the evidence standard established in 
paragraph (b).
24. Filing the Transcript
    Section 22.25: EPA proposes to add a provision disallowing motions 
to conform the transcript of a proceeding to the actual testimony 
unless filed within 20 days after notice of the availability of the 
transcript, in the interests of finality.
25. Initial Decision
    Section 22.27: Paragraph (a) would be amended to encompass 
compliance orders, corrective action orders, and permit revocations, 
terminations and suspensions. It would further require that a copy of 
the initial decision be served on the Assistant Administrator for 
Enforcement and Compliance Assurance. Other changes are editorial, and 
are not intended to make substantive changes in the CROP.
    Paragraph (b) would be amended to require that the Presiding 
Officer base the recommended penalty upon evidence in the record and in 
accordance with any penalty criteria set forth in the Act. A 
requirement that the Presiding Officer explain how the penalty 
corresponds to any penalty criteria set forth in the Act would be 
substituted for the existing requirement that the Presiding Officer 
explain the reasons for recommending a penalty other than the penalty 
proposed in the complaint. These changes will clarify the essential 
neutrality of the Presiding Officer, but will not result in any 
substantive or other procedural changes to CROP proceedings.
    Paragraph (c) would be amended to clarify the circumstances under 
which an initial decision may become a final order of the Agency. It 
further clarifies that the respondent must appeal an initial decision 
to the EAB as a prerequisite to judicial review. This addition makes 
clear the point at which administrative remedies are exhausted for the 
purpose of appeal to Federal courts. The purpose of this latter 
amendment is to prevent a party from seeking judicial review prior to 
seeking review from EPA's administrative appellate body, the 
Environmental Appeals Board. This addition to the CROP is proposed to 
conform to the holding in Darby v. Cisneros, 509 U.S. 137 (1993). In 
Darby the Supreme Court held that in cases where the Administrative 
Procedure Act applies, an appeal to ``superior agency

[[Page 9475]]

authority'' is a prerequisite to judicial review only when expressly 
required by statute or when an agency rule requires appeal before 
review and the administrative action is made inoperative pending that 
review. Courts are not free otherwise to impose an exhaustion 
requirement where the agency action has already become ``final'' under 
section 10(c) of the APA, 5 U.S.C. 704.
    The new language is an express requirement that the administrative 
appeals process be exhausted before a party may seek judicial review of 
a final agency action. Section 22.27(c) makes it clear that the initial 
decision of the Presiding Officer would not be operative pending review 
by the Environmental Appeals Board. While this holding in Darby applies 
to cases governed by section 704 of the APA, exhaustion of 
administrative remedies is also required in cases where APA section 
10(c) is not applicable. EPA's position with regard to exhaustion of 
administrative remedies in CROP cases is consistent with its position 
on exhaustion of administrative remedies generally. See, 40 CFR 66.81 
and Bethlehem Steel Corp. v. EPA, 669 F.2d 903 (1982) interpreting 40 
CFR 66.81. These changes do not alter respondents' rights and do not 
create any right of appeal in Sec. 22.27. Appeal is only permitted 
pursuant to the provisions of Sec. 22.30.
26. Motion to Reopen a Hearing
    Section 22.28: Paragraph (a) would be amended to clarify the 
purposes for reopening a hearing. No substantive change is intended. 
EPA would amend paragraph (b) to expand from 10 to 15 days the time 
allotted for responding to a motion to reopen a hearing, for 
consistency with changes to Sec. 22.16. Other changes are made for 
clarity.
27. Appeal From or Review of Interlocutory Orders or Rulings
    Section 22.29: EPA proposes that paragraphs (a), (b) and (c) be 
revised to clarify the nature of interlocutory appeals, and to allow 
ten days from service, rather than six days from notice, to request 
interlocutory review. The change in the filing deadline will give 
parties additional time, and it will measure that time from a date 
easily ascertained by all. No other substantive change is intended. 
Paragraph (d) would be deleted as surplusage, as the Presiding 
Officer's authority to stay a proceeding is inherent in Sec. 22.04(c) 
and the limitations of Sec. 22.29(d) are unnecessary.
28. Appeal From or Review of Initial Decision
    Section 22.30: The procedure for filing appeals would be clarified, 
including, but not limited to, provisions addressing service and 
filing, and describing the contents of any appeal brief. Under the 
existing CROP, a party which is not fully satisfied by an initial 
decision, but who would be willing to let the decision stand as is, may 
feel obliged to file an appeal merely to assure that its own issues are 
preserved in the event that the other party appeals the initial 
decision on other grounds. The proposal includes a new provision 
whereby a party who initially declined to appeal, but who receives a 
notice of appeal from another party, is granted an additional 20 days 
to raise other issues on appeal. This change would eliminate the need 
for protective filings by parties who are largely content with an 
initial decision. Other substantive changes include extending the time 
to file an appeal from 20 to 30 days, and a provision expressly 
limiting the scope of appeals to issues raised during the course of the 
proceeding or by the initial decision. A new paragraph (e) specifies 
that the general requirements for motions at Sec. 22.16 apply to 
motions made in appeals to the EAB. A new paragraph (f) would consist 
of language presently in Sec. 22.31(a) concerning decisions on appeals. 
Moving this language into Sec. 22.30 makes the structure of Sec. 22.30 
comparable to Sec. 22.29. Paragraph (f) describes the scope of review 
by the EAB and its authority to increase or decrease a penalty, or to 
modify any compliance order, corrective action order, or any permit 
revocation, termination and suspension. The proposed revision would 
allow the EAB to increase the amount of a penalty assessed in a default 
order, but would not allow the EAB to increase the default penalty to 
an amount greater than that proposed in the complaint or in a motion 
for default, whichever is less. This change would avoid an unintended 
implication of the present rule, which could be interpreted as 
precluding the EAB from reviewing the amount of a penalty in a default 
order which assessed less than the penalty complainant sought.
29. Final Order
    Section 22.31: Section 22.31 of the existing CROP applies to final 
orders on appeal only; provisions regarding other types of final orders 
are scattered throughout the CROP. For clarity and consistency, 
requirements and provisions applicable to all final orders would be 
consolidated in revised Sec. 22.31. Those provisions now in Sec. 22.31 
which apply only to final orders on appeal would be moved to 
Sec. 22.30, as noted above. Paragraph (a) would make clear that a final 
order constitutes final Agency action. It would provide that the final 
order resolves respondent's liability for a civil penalty, compliance 
or corrective action order, or the status of a permit or authority to 
operate, only for the violations and facts alleged in the complaint, 
and that it shall not affect the government's right to injunctive 
relief or criminal sanctions. It explicitly states that a final order 
will not affect a respondent's obligation to comply with all applicable 
provisions of the Act and regulations promulgated thereunder. These 
provisions do not alter respondents' rights, but merely make explicit 
the existing law of res judicata and claim preclusion. The Agency's 
routine practice is to make provisions such as these standard elements 
of settlement agreements. Including these provisions in the CROP would 
provide a clear limit to the scope of final orders, regardless of 
whether the final orders are consent orders, final decisions on appeal, 
or unappealed initial decisions.
    A new paragraph (b) would clarify that final orders are effective 
upon issuance, except that unappealed initial decisions which become 
final orders pursuant to Sec. 22.27(c) become effective at the same 
time they become final orders, i.e., 45 days after service of the 
initial decision. This clause pertains to the effective date of the 
order itself; the final order may establish compliance schedules, 
schedules for payment of penalties, dates of termination of permits, 
etc., notwithstanding this clause. Paragraphs (c) and (d) establish 
penalty payment schedules and effective dates for other relief, 
respectively, which shall apply unless the final order specifies 
otherwise. The existing rule requires payment of the penalty within 60 
days after the order was received. This conflicts with the Federal 
Claims Collection Standards, which require payment within 30 days after 
the date the order was issued, unless EPA decides an extension is 
appropriate. See 4 CFR 102.13(g). The proposed rule therefore requires 
payment within 30 days after the effective date of the final order. 
Paragraph (c) also would require payment of penalties directly to U.S. 
Treasury lockboxes, rather than to the Hearing Clerks, and would make 
applicable to all proceedings a provision currently in Sec. 22.39(d) 
regarding assessment of interest on overdue penalties. This Subsection 
would

[[Page 9476]]

specify that the collection of interest on overdue payments shall be in 
accordance with the Debt Collection Act, 31 U.S.C. 3717, which is 
applicable whether or not it is referenced in part 22. The Agency 
requests comment on whether the CROP should address payment of 
penalties by electronic transfer of funds, and if so, what procedures 
would be appropriate.
    A new paragraph (e) would make explicit that although a respondent 
may choose to conclude an administrative proceeding by settlement or by 
allowing an initial decision to become final without appeal to the 
Environmental Appeals Board, each of these options falls short of 
exhausting the opportunities available within the CROP for 
administrative review. This revision would not substantively change the 
requirements of exhaustion of remedies, nor would it alter respondents' 
rights. This subsection would simply assure that respondents have 
notice that appeal of the final order to the Federal courts is not 
available where a respondent settles a case pursuant to Sec. 22.18 or 
fails to exercise its right to appeal an initial decision to the 
Environmental Appeals Board pursuant to Sec. 22.30.
    Paragraph (f) would provide that a final order of the Environmental 
Appeals Board issued to a department, agency, or instrumentality of the 
United States pursuant to Sec. 22.30 shall become effective (and 
``final'' as that term is used in 42 U.S.C. 6961(b)(2)) thirty days 
after its service upon the parties, in order that the head of the 
affected department, agency, or instrumentality may request a 
conference with the Administrator. If the department, agency, or 
instrumentality requests a conference with the Administrator, then the 
Administrator's ensuing decision would become the final order. 
Essentially the same provision appeared in Sec. 22.37(g), the Solid 
Waste Disposal Act supplemental rule. It is moved into Sec. 22.31 in 
order that the same procedure also would be applicable to penalty 
actions brought against federal facilities under other statutes such as 
the Safe Drinking Water Act (42 U.S.C. 300j-6) and the Clean Air Act 
(42 U.S.C. 7413(d), 7524(c) and 7545(d)(1)). In making the language of 
Sec. 22.37(g) apply to proceedings commenced under other statutes, 
reference to the Federal Facility Compliance Act would be deleted. The 
Agency still intends that a final order issued in a case brought under 
the Solid Waste Disposal Act shall constitute a final order for 
purposes of the Federal Facility Compliance Act. This opportunity to 
confer with the Administrator is available only after the Environmental 
Appeals Board has issued a final order on appeal, and only if requested 
in writing within 30 days. A motion for reconsideration by the 
Environmental Appeals Board is not necessary, however, such a motion 
does not toll the thirty-day limit unless specifically so ordered by 
the Environmental Appeals Board.
30. Supplemental Rules of Practice Applicable to Proceedings Authorized 
Under Specific Statutes
    Section 22.33: The provisions discussing subpoenas have been 
deleted from this supplemental rule, as well as from Secs. 22.34, 
22.37, 22.39, 22.40, and 22.43, allowing the elimination of this and 
several other supplemental rules. The procedures for subpoenas are now 
consolidated in Sec. 22.19, as discussed above. The Presiding Officer's 
authority to issue a subpoena remains dependant on the statute giving 
rise to the cause of action. Owing to the fact that the subpoena 
provisions were the only substantive elements of this supplemental 
rule, the entire supplemental rule applying to TSCA proceedings would 
be deleted.
    Section 22.34: This section would be amended to include, in 
addition to proceedings for civil penalty assessment under Title II of 
the CAA, proceedings governing the assessment of a civil penalty under 
section 113(d) of the CAA. The latter proceedings are presently covered 
by Sec. 22.43, which mostly mirrors Sec. 22.34. The one substantive 
difference, the Sec. 22.43(b)(2) provision allowing 30 days for filing 
an answer, is no longer necessary as a consequence of proposed changes 
to Sec. 22.15. Paragraph (a) of this supplemental rule and each of the 
other supplemental rules also would be amended to eliminate the 
implication that the supplemental rules are not part of the 
Consolidated Rules of Practice. The term ``final order'' would be 
substituted for the phrase ``administrative penalty order'' in 
paragraph (b), for consistency and to encompass field citations as well 
as administrative penalty orders issued pursuant to section 113(d)(1) 
of the CAA.
    A new paragraph (c) would apply to default orders for failure to 
answer a field citation. Section 59.5(d) of the Field Citation Rule 
provides that when a respondent fails to file a timely answer to a 
field citation (and fails to offer to pay the penalty under the quick 
resolution procedure at Sec. 22.18(a)(2)), the Presiding Officer shall 
issue a default order assessing the penalty proposed in the complaint. 
This provision initially was proposed in the May 3, 1994, Federal 
Register (59 FR 22776), and EPA does not seek additional comment on it 
at this time.
    Section 22.35: In the supplemental rules governing proceedings 
under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 
EPA proposes to amend the venue provision of paragraph (b) to address 
the situation where a respondent's place of residence is outside the 
U.S. FIFRA regulates the domestic conduct of foreign-based pesticide 
registrants, manufacturers, producers, distributors, applicators, etc. 
Accordingly, for a person who claims a place of residence outside the 
U.S., EPA interprets the phrase ``place of residence'', as used in 7 
U.S.C. 136l(a)(3), to mean either the person's primary place of 
business within the U.S., or the primary place of business of the 
person's U.S. agent. Paragraph (c) would be deleted for consistency 
with changes to Sec. 22.27(b).
    Section 22.36: The supplemental rule regarding the Marine 
Protection, Research and Sanctuaries Act would be deleted as surplusage 
in light of changes made elsewhere in the CROP to accommodate permit 
revocation, termination and suspension proceedings, particularly in 
Sec. 22.13.
    Section 22.37: The scope of this supplemental rule would be 
expanded to include section 3005(d) of the SWDA, which authorizes 
termination of permits, and section 9006, which authorizes the issuance 
of administrative compliance orders to address violations of 
Underground Storage Tank (``UST'') requirements. The notice 
requirements presently in paragraphs (b), (c) and (d) would be deleted 
as surplusage. On December 2, 1980 (45 FR 79808), EPA suspended these 
subsections until further notice, in response to amendments to the SWDA 
which eliminated the pre-complaint notice requirements from the Act. 
Today, EPA proposes to delete the requirements entirely. The proposed 
revision of Sec. 22.15, allowing 30 days for filing an answer, would 
make paragraph (e) surplusage as well. A new paragraph (b) would 
specify that 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. This provision 
is included to make clear that in these circumstances, the complaint is 
an ``order'' as that term is used in the aforementioned sections of the 
SWDA. Any such order would automatically become a final order unless, 
no later than thirty (30) days after the order is served, the 
respondent requests a hearing pursuant to Sec. 22.15. The provision 
concerning the Federal

[[Page 9477]]

Facilities Compliance Act contained in paragraph (g) would be moved to 
Sec. 22.31(f), in order that it may be applicable to actions commenced 
pursuant to other statutes as well as the SWDA.
    Section 22.38: In paragraph (a), the scope of this supplemental 
rule would be expanded to include civil penalties authorized by section 
311(b)(6) of the Clean Water Act. Paragraph (b) would be amended to 
provide a more explicit process for implementing the statutory 
requirement regarding state consultation. The public notice and comment 
provisions would be removed from paragraphs (c), (d) and (f) and placed 
in a separate supplemental rule, Sec. 22.45, which would also apply to 
proceedings under section 300h-2(c) of the Safe Drinking Water Act. The 
proposed text of Sec. 22.45 would provide much more detailed and 
comprehensive process than is currently provided under Sec. 22.38(c), 
(d) and (f). The applicability of Sec. 22.45 would be noted in 
Sec. 22.38(a) in order to provide additional notice that both 
supplemental rules apply. The provision presently in paragraph (e) 
would be renumbered as (c), and expanded to include proceedings under 
section 311(b)(6) of the Clean Water Act, consistent with changes to 
paragraph (a). A new paragraph (d) would require that in proceedings 
pursuant to section 311(b)(6) of the Clean Water Act penalties be paid 
into the Oil Spill Liability Trust Fund.
    Section 22.39: Most of the changes to this supplemental rule are 
consistent with changes to other supplemental rules already discussed. 
In addition, language proposed to be added to the main text of the CROP 
at Sec. 22.31 would be deleted from Sec. 22.39(d) (which would be 
renumbered as (c)).
    Section 22.40: The supplemental rule regarding the Emergency 
Planning and Community Right-To-Know Act would be deleted in its 
entirety. The subpoena provisions would be deleted from this and other 
supplemental rules as discussed above. In addition, the provisions 
regarding judicial review in paragraph (c) and collection of penalties 
in paragraph (d) can also be deleted as surplusage. No substantive 
change is intended by the deletion of this supplemental rule.
    Section 22.41: The only changes to the supplemental rule regarding 
the Asbestos Hazard Emergency Response Act are consistent with changes 
to other supplemental rules already discussed. No substantive change is 
intended by these editorial revisions.
    Section 22.42: Paragraphs (b) through (e) of the Safe Drinking 
Water Act supplemental rule would be deleted as surplusage. No 
substantive change is intended by these deletions. A new paragraph (b) 
would allow respondents in certain non-APA proceedings the right to 
choose that the hearing be conducted in accordance with section 554 of 
the APA, as required under section 1414(g)(3)(B) of the Safe Drinking 
Water Act. This provision would enable respondent to make subpart I 
inapplicable, notwithstanding the Agency's having commenced the 
proceeding under subpart I, by requesting in its answer a hearing on 
the record in accordance with 5 U.S.C. 554. EPA proposes that a 
respondent's failure to exercise this right in its answer shall 
constitute a waiver of that right. This limitation is necessary in 
order to avoid the delays, disruptions, and duplications of effort 
which would result if a case were reassigned from a Regional Judicial 
Officer to an ALJ after the proceeding was well underway.
    Section 22.43: The provisions of the existing Sec. 22.43 would be 
incorporated into Sec. 22.34, as discussed above. A new supplemental 
rule applicable to proceedings against a federal facility pursuant to 
the Safe Drinking Water Act Amendments of 1996, Pub. L. No. 104-182 
would be codified as Sec. 22.43. Paragraph (b) describes the effective 
date of any penalty order issued under section 1447(b) of the Act. 
Paragraph (c) describes the public notice requirements for issuance of 
a final penalty order.
    Section 22.44: This section presents a new supplemental rule for 
termination of NPDES permits issued under the Clean Water Act and for 
permits issued under Subtitle C of the Resource Conservation and 
Recovery Act. This new supplemental rule has already been proposed (60 
FR 65,268), and EPA does not seek additional comment at this time.
    Sections 22.45: The Agency proposes to add a new supplemental rule 
governing public notice and comment in proceedings under section 309(g) 
of the Clean Water Act and section 300h-2(c) of the Safe Drinking Water 
Act. The detailed procedures proposed for public notice and comment are 
sufficiently extensive that the Agency proposes to codify them once, in 
a single supplemental rule applicable to these two types of 
proceedings, rather than repeating the same requirements in two 
separate rules. This supplemental rule would complement Sec. 22.38, 
such that both would apply to proceedings under section 309(g) of the 
Clean Water Act. These public commenter rights are separate from, and 
in addition to, the intervention and amicus curie provisions at 
Sec. 22.11.
    The substance of the proposed Sec. 22.45 replaces and expands on 
the procedures presently in Sec. 22.38 (c), (d) and (f), in order to 
clarify commenter provisions and to fully satisfy the statutory 
requirements. Section 22.45(b) would require the complainant to provide 
public notice and an opportunity to comment on a complaint or on a 
proposed consent agreement where the parties agree to settle without 
the filing of a complaint pursuant to Sec. 22.13(b). This provision 
would require the Agency to accommodate commenters in situations where 
the agency proposes to settle an action without the filing of a 
complaint. Paragraph (b)(2) sets out the type and content of the 
required public notice, so that the notice will provide any potential 
commenter with sufficient information to make an initial determination 
as to whether or not he wishes to comment.
    Paragraph (c) expands procedures for participation by a commenter. 
These procedures provide a meaningful opportunity for commenters to 
present evidence, as required by statute, and at the same time limit 
the opportunity commenters might have to delay issuance of a final 
order through dilatory or frivolous submissions. Paragraph (c)(1) sets 
out the requirements for commenter participation in a proceeding. It 
describes both the obligations of the commenter and those of the 
Presiding Officer in this context. It establishes express limits on the 
scope of commenter participation, and gives the Presiding Officer broad 
discretion to further control the extent of commenter participation. 
Paragraph (c)(2) sets out limitations on commenter cross-examination of 
witnesses, and prohibits the commenter from either participating in, or 
being subject to, any discovery or prehearing information exchange. 
Paragraph (c)(3) assures that cases are not settled before the end of a 
required comment period.
    Paragraph (c)(4) describes the procedures governing a commenter's 
petition to set aside a consent order where no hearing on the merits 
was held. The Agency believes that this language establishes 
appropriate limits on such requests, while at the same time meeting the 
requirements of the respective statutes and avoiding inappropriate 
tainting of the administrative record. Paragraph (c)(4)(i) requires the 
complainant to provide all commenters and the Regional Administrator 
with a copy of the proposed consent order. The Presiding Officer and 
Hearing Clerk do not receive a copy of the proposed order at this 
juncture, in order to protect the

[[Page 9478]]

administrative record and assure that the Presiding Officer, who may 
have to adjudicate the case if settlement efforts fail, is not privy to 
the parties' settlement positions. Paragraph (c)(4)(ii) requires that, 
within 30 days of receipt of the proposed order, the commenter must 
provide to the Regional Administrator and the parties (but not to the 
Presiding Officer or Hearing Clerk) any petition to set aside the 
consent order. Paragraph (c)(4)(iii) then permits the complainant to 
withdraw the proposed order within 15 days of receipt of a petition, in 
order to consider the matters raised. If the complainant does not 
withdraw the proposed order within 15 days, the Regional Administrator 
shall appoint a Petition Officer to review the petition and make a 
determination as to the issues raised. A copy of the Regional 
Administrator's order of appointment shall be sent to the Presiding 
Officer and the parties. These procedures are designed, once again, to 
avoid tainting the Presiding Officer or administrative record with 
materials relevant to settlement negotiations only. Paragraph 
(c)(4)(iv) gives the complainant 30 days in which to file with the 
Petition Officer (not the Presiding Officer) the complainant's response 
to the petition. Copies of the response are provided to the parties and 
commenter(s), but not to the Presiding Officer and Hearing Clerk. 
Paragraph (c)(4)(v) describes the Petition Officer's duties upon 
receipt of complainant's response. Note here that the Petition 
Officer's written findings will be filed with the Hearing Clerk and 
Presiding Officer. Paragraph (c)(4)(vi) describes the Presiding 
Officer's duties where the Petition Officer rules that a hearing is 
required and the petition for hearing is granted. Paragraph (c)(4)(vii) 
describes the Petition Officer's duties where the Officer determines 
that a hearing is not required. Paragraph (c)(4)(viii) and (ix) 
describe the procedures for issuance of the consent order, for appeal 
of such order in the appropriate U.S. District Court, and when the 
order becomes final after denial of appellate review.
    Sections 22.46 through 22.49: Reserved.
31. Supplemental Rules for Administrative Proceedings not Governed by 
Section 554 of the Administrative Procedure Act
    Sections 22.50 through 22.53 comprise subpart I, which presents 
modifications to the main text of the CROP to facilitate use of the 
CROP in administrative adjudications where a hearing on the record is 
not required. Such adjudications are commonly referred to as ``non-
APA'' proceedings in reference to the Administrative Procedure Act, of 
which sections 554, 556 and 557 apply only to ``adjudication[s] 
required by statute to be determined on the record after opportunity 
for an agency hearing''. 5 U.S.C. 554(a)(1). A key feature of these 
non-APA procedures is that the Presiding Officer need not be an 
Administrative Law Judge, as required in proceedings subject to APA 
554, 556 and 557. Other differences include greater limitations on 
discovery and a prohibition on interlocutory appeals, however, it is 
only the absence of an Administrative Law Judge which puts the subpart 
I procedures outside the requirements of APA 554, 555, and 556. Owing 
to the retention of most of subparts A through G, the subpart I 
procedures provide nearly the same level of procedural protection for 
respondent's interests as would be available in a hearing fully 
conforming to the requirements of subparts A through G.
    The subpart I procedures would retain the extensive prehearing 
exchange mandated in Sec. 22.19(a) (requiring exchange of witness 
lists, summaries of expected testimony, copies of documents or 
exhibits, and evidence relevant to the amount of the penalty). Although 
courts have confirmed that there is no constitutional due process right 
to discovery in administrative adjudications (see e.g., Silverman v. 
CFTC, 549 F.2d 28 (7th Cir. 1977); NLRB v. Valley Mold Co., 530 F.2d 
693 (6th Cir. 1976) cert. den. 429 US 824), the prehearing exchange 
under Sec. 22.19(a) provides substantial discovery well in advance of a 
hearing.
    The procedures provided through subpart I are adequate to assure a 
fair hearing, notwithstanding the absence of an ALJ, additional 
prehearing discovery and interlocutory review. The differences between 
the APA and non-APA provisions of the CROP are unlikely to affect the 
outcome of an administrative enforcement proceeding, and unlikely to 
impair the accuracy of the Agency's decisionmaking. Providing an ALJ 
for every case, including those lacking significant legal or factual 
dispute, would draw limited resources away from more complex and more 
significant cases. Allowing interlocutory appeals and additional 
discovery, such as interrogatories, depositions, requests for 
documents, would add significant delay to administrative enforcement 
and could cause extraordinary resource burdens. The absence of these 
additional procedural protections in non-APA proceedings poses only 
minor risk of impairing the regulated community's interest in fair and 
accurate adjudications, yet making them generally available would put 
substantial fiscal and administrative burdens on the government. 
Accordingly, EPA is not obliged to provide these additional procedural 
protections in non-APA proceedings in order to satisfy the requirements 
of the due process clause. Matthews v. Eldridge, 424 U.S. 319, 344-45 
(1976); also see Chemical Waste Management, Inc. v. U.S. E.P.A., 873 
F.2d 1477 (D.C. Cir. 1989).
    Although the Agency has not yet through rulemaking established 
formal procedures for the assessment of civil penalties through non-APA 
proceedings, the Agency has been conducting such proceedings under the 
proposed part 28 procedures and program-specific guidance. Where it is 
not inconsistent with other regulations, EPA intends that the 
procedures for non-APA proceedings proposed herein should be used in 
non-APA penalty proceedings pending promulgation of a final rule. 
Accordingly, non-APA penalty cases filed after the publication of this 
proposed rule should follow the procedures herein. Cases that have 
already commenced pursuant to the proposed part 28 procedures shall 
continue to be governed by the proposed part 28 procedures, however, 
complaints withdrawn in accordance with Sec. 28.18(a)(1) may be refiled 
under the proposed CROP. In addition, a proceeding commenced under the 
proposed part 28 may be converted into a proceeding under the proposed 
CROP provided that no evidentiary hearing has been held and that all 
parties and the Presiding Officer agree to the change.
    Section 22.50: Section 22.50 defines the scope of subpart I. 
Paragraph (a) indicates that the initial decision to bring a proceeding 
pursuant to subpart I is made by the Agency and requires that the 
Agency indicate such decision in the complaint. The Agency may in any 
case decline to apply subpart I and instead give the respondent the 
greater process of law afforded by a proceeding conforming to section 
554 of the APA. Paragraph (a) acknowledges that the Agency may not 
apply subpart I where a statute requires a hearing in accordance with 
section 554 of the Administrative Procedure Act. Examples where 
Congress has authorized EPA to administratively assess penalties 
through proceedings that are not subject to the requirements of section 
554 in certain circumstances include: CWA sections 309(g)(2)(A) and 
311(b)(6)(A) & (B)(i) (33 U.S.C. 1319(g)(2)(A) and 1321(b)(6)(A) & 
(B)(i)); section 109(a) of the Comprehensive

[[Page 9479]]

Environmental Response, Compensation and Liability Act (CERCLA) (42 
U.S.C. 9609(a)); section 325(b)(1), (c), and (d) of the Emergency 
Planning and Community Right-To-Know Act (EPCRA) (42 U.S.C. 
11045(b)(1), (c), and (d)); SDWA section 1414(g)(3)(B) (42 U.S.C. 300g-
3(g)(3)(B)); and CAA section 113(d)(3) (42 U.S.C. 7413(d)(3)); and 
issuance of a penalty-only order or a penalty/compliance order under 
SDWA section 1423(c) (42 U.S.C. 300h-2(c)). At this time, EPA does not 
intend to alter its present practice of providing the full APA process 
in CERCLA and EPCRA cases, although if circumstances warrant, the 
Agency may in the future exercise its authority to assess CERCLA and 
EPCRA penalties through non-APA proceedings. EPA welcomes comment 
concerning the types of CERCLA and EPCRA penalty cases for which non-
APA procedures would be appropriate.
    Paragraph (b) describes how the subpart works in conjunction with 
the preceding sections of the CROP, and also identifies those sections 
of the CROP which are inapplicable to a non-APA proceeding brought 
under subpart I.
    Section 22.51: The term ``Presiding Officer'' would be defined for 
the purposes of a proceeding under this subpart to mean a Regional 
Judicial Officer, and provides that the Regional Judicial Officer shall 
rule on all motions, notwithstanding the provisions of Sec. 22.16(c) 
which provide that post-answer motions be ruled on by the 
Administrative Law Judge.
    Section 22.52: This section defines the parameters of information 
exchange for purposes of non-APA proceedings. The Agency's goal is to 
encourage complete and voluntary information exchange by the parties 
and limit unnecessary motion practice. Parties would be subject to the 
prehearing information exchange authorized in Sec. 22.19(a), but most 
additional discovery would be prohibited under this subpart. The 
proposed Sec. 22.52 would also require the respondent to provide in its 
prehearing exchange information in regard to any economic benefit it 
may have enjoyed as a result of the alleged non-compliance or a failure 
to act. Requiring this information up-front will help to clarify 
penalty issues early on, and avoid excessive and time-consuming motion 
practice.
    The proposed Sec. 22.52 would prohibit most additional discovery 
that would otherwise be allowed under Sec. 22.19(e). Although it would 
prohibit most discovery, the complainant would be entitled to discovery 
of information concerning respondent's economic benefit of 
noncompliance and of financial records probative of respondent's 
ability to pay a penalty. Under several statutes, this information must 
be made part of the administrative record supporting a penalty 
determination, but it generally is not available to the Agency except 
through discovery of the respondent. Accordingly, discovery of this 
information must be permitted in order to prevent respondents from 
avoiding enforcement by simply withholding information.
    Section 22.53: This section prohibits interlocutory appeals in 
proceedings under this subpart. The Agency sees little value in 
allowing interlocutory appeals in these relatively informal enforcement 
actions, particularly since parties to a proceeding under subpart I 
retain full appeal rights once an initial decision is issued. The 
Agency is particularly concerned that permitting interlocutory appeals 
would slow resolution of non-APA enforcement actions considerably.
32. Appendices
    Appendix A: The Appendix would be amended to reflect the current 
addresses of EPA Regional Offices and EPA Headquarters.
    Appendix B: This new appendix would be added to provide the 
addresses of EPA Regional and Headquarters lockboxes. These are the 
addresses to which, generally, the payments of civil penalties would be 
sent. The Agency requests comment on whether, and if so, how the CROP 
should address the electronic transfer of funds in addition to, or in 
lieu of, payment by check.

B. Revisions to Part 59

    EPA anticipates that its May 3, 1994, proposed part 59 rule on 
field citations (59 FR 22776) will become final while these proposed 
revisions to the CROP are pending. Upon final promulgation of these 
revisions to the CROP, subpart B of part 59 would be superseded and 
deleted from the CFR.

III. Invitation of Public Comment

    EPA invites comments on all aspects of the revisions proposed to 
part 22 and part 59. For the convenience of the reader only, EPA is 
publishing in its entirety part 22 as it would be revised. EPA is not 
proposing to readopt those portions of part 22 which would remain 
unchanged. This Notice of Proposed Rulemaking is limited to those 
changes from the existing regulations described in this Notice.
    Information on the time period for submission of comments and 
directions for their submission may be found in the DATES and ADDRESSES 
sections of this document.

IV. Administrative Requirements

A. The Regulatory Flexibility Act

    Under the Regulatory Flexibility Act, 5 U.S.C. 601-612, whenever an 
agency is required to publish a general notice of rulemaking for any 
proposed or final rule, it must prepare and make available for public 
comment a regulatory flexibility analysis that describes the impact of 
the rule on small entities, i.e., small business, small organizations, 
and small governmental jurisdictions. The analysis is not required, 
however, where the Administrator certifies that the rule will not have 
a significant economic impact on a substantial number of small 
entities.
    This regulation will impose no significant costs on any small 
entities, because it creates no new regulatory requirements, but 
instead simplifies existing procedural rules. The overall economic 
impact on small entities is therefore believed to be nominal, if any at 
all. Accordingly, I hereby certify that this proposed regulation will 
not have a significant impact on a substantial number of small 
entities.

B. Executive Order 12866

    Under Executive Order 12866, (58 FR 51,735 (October 4, 1993)) the 
Agency must determine whether the regulatory action is ``significant'' 
and therefore subject to OMB review and the requirements of the 
Executive Order. The Order defines ``significant regulatory action'' as 
one that is likely to result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local or tribal governments or communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    It has been determined that this rule is not a ``significant 
regulatory action'' under the terms of Executive Order 12866 and is 
therefore not subject to OMB review.

[[Page 9480]]

C. Paperwork Reduction Act

    This proposed rule contains no information collection activities 
and, therefore, no information collection request (ICR) will be 
submitted to the Office of Management and Budget (OMB) for review in 
compliance with the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (``UMRA''), 
Public Law 104-4, establishes requirements for Federal agencies to 
assess the effects of their regulatory actions on State, local, and 
tribal governments and the private sector. Under section 202 of the 
UMRA, EPA generally must prepare a written statement, including a cost-
benefit analysis, for proposed and final rules with ``Federal 
mandates'' that may result in expenditures to State, local, and tribal 
governments, in the aggregate, or to the private sector, of $100 
million or more in any one year. When a written statement is needed for 
an EPA rule, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, giving 
them meaningful and timely input in the development of EPA regulatory 
proposals with significant Federal intergovernmental mandates, and 
informing, educating, and advising them on compliance with the 
regulatory requirements.
    Today's rule contains no Federal mandates (under the regulatory 
provisions of Title II of the UMRA) for State, local, or tribal 
governments or the private sector. The rule imposes no enforceable 
duties on any of these governmental entities or the private sector.

List of Subjects

40 CFR Part 22

    Environmental protection, Administrative practice and procedure.

40 CFR Part 59

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Labeling, Penalties, Reporting and recordkeeping 
requirements.

    Dated: February 6, 1998.
Carol M. Browner,
Administrator.

    For the reasons set forth in the preamble, EPA proposes to amend 40 
CFR parts 22 and 59 as follows:
    1. Part 22 is revised to read as follows:

PART 22--CONSOLIDATED RULES OF PRACTICE GOVERNING THE 
ADMINISTRATIVE ASSESSMENT OF CIVIL PENALTIES, ISSUANCE OF 
COMPLIANCE OR CORRECTIVE ACTION ORDERS, AND THE REVOCATION, 
TERMINATION OR SUSPENSION OF PERMITS

Subpart A--General

Sec.
22.01  Scope of this part.
22.02  Use of number and gender.
22.03  Definitions.
22.04  Roles of the Environmental Appeals Board, Regional Judicial 
Officer and Presiding Officer; disqualification, withdrawal, and 
reassignment.
22.05  Filing, service, and form of pleadings and documents; 
business confidentiality claims.
22.06  Filing and service of rulings, orders and decisions.
22.07  Computation and extension of time.
22.08  Ex parte discussion of proceeding.
22.09  Examination of documents filed.

Subpart B--Parties and Appearances

22.10  Appearances.
22.11  Intervention and amicus curiae.
22.12  Consolidation and severance.

Subpart C--Prehearing Procedures

22.13  Commencement of a proceeding.
22.14  Content and amendment of the 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.
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 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 governing the termination of permits under 
section 402(a) of the Clean Water Act or under section 3005(d) of 
the Resource Conservation and Recovery Act.
22.45  Supplemental rules governing public notice and comment in 
proceedings under section 309(g) of the Clean Water Act and section 
300h-2(c) of the Safe Drinking Water Act.
22.46-22.49  [Reserved]

[[Page 9481]]

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.
22.53  Interlocutory orders or rulings.
Appendix A to Part 22--Addresses of EPA Regional Offices and 
Headquarters
Appendix B to Part 22--Addresses of Regional and Headquarters 
Lockboxes

    Authority: 7 U.S.C. 136l; 15 U.S.C. 2610(c), 2615(a) and 2647; 
33 U.S.C. 1319(g), 1321(b)(6) and 1342(a); 33 U.S.C. 1415(a) and (f) 
and 1418; 42 U.S.C. 300g-3(g)(3)(B), 300h-2(c) and 300j-6(a); 42 
U.S.C. 6912, 6925, 6928, 6945(c)(2), 6961, 6991b and 6991e; 42 
U.S.C. 7413(d), 7524(c), 7545(d), 7547(d), 7601 and 7607(a); 42 
U.S.C. 9609; 42 U.S.C. 11045; 42 U.S.C. 14304.

Subpart A--General


Sec. 22.01  Scope of this part.

    (a) These Consolidated Rules of Practice govern all administrative 
adjudicatory proceedings for:
    (1) The assessment of any administrative civil penalty conducted 
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 conducted 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)(i) The issuance of a compliance order pursuant to section 
3008(a), section 4005(c)(2), section 6001(b), or section 9006(a), 
suspension or revocation of a permit pursuant to section 3005(d) or 
section 3008(a), or the suspension or revocation of authority to 
operate as an interim status facility pursuant to section 3008(h) of 
the Solid Waste Disposal Act (``SWDA'') (42 U.S.C. 6925(d) & (e), 
6928(a) & (h), 6945(c)(2), 6961(b), and 6991e(a)); or the assessment of 
any administrative civil penalty under sections 3008, 4005(c)(2), 
6001(b), and 9006 of the SWDA (42 U.S.C. 6928, 6945(c)(2), 6961(b), and 
6991e), except as provided in 40 CFR parts 24 and 124.
    (ii) The issuance of corrective action orders under section 3008(h) 
of the SWDA only when such orders are contained within an 
administrative order which:
    (A) Includes claims under section 3008(a) of the SWDA; or
    (B) Includes a suspension or revocation of authorization to operate 
under section 3005(e) of the SWDA; or
    (C) Seeks penalties under section 3008(h)(2) of the SWDA for non-
compliance with a order issued pursuant to section 3008(h).
    (iii) The issuance of corrective action orders under section 
9003(h)(4) of the SWDA only when such orders are contained within 
administrative orders which include claims under section 9006 of the 
SWDA.
    (5) The assessment of any administrative civil penalty conducted 
under sections 16(a) and 207 of the Toxic Substances Control Act (15 
U.S.C. 2615(a) and 2647).
    (6) The assessment of any administrative civil penalty under 
sections 309(g) and 311(b)(6), or the termination of any permit issued 
pursuant to section 402(a) of the Clean Water Act (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. The procedures in any applicable subpart H or I of this part 
supplemental rule supersede any conflicting provisions of subparts A 
through G of this part.
    (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.


Sec. 22.02  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. 22.03  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 (see also Pub. L. 95-251, 92 Stat. 183).
    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 Board, Mail Code 1103B, 
U.S. Environmental Protection Agency, 401 M St. SW., 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 action; 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 decision.
    Consolidated Rules of Practice means the regulations in this part.
    Environmental Appeals Board means the Board within the Agency 
described in Sec. 1.25 of this chapter.
    Final Order means:
    (1) An order issued by the Environmental Appeals Board or the 
Administrator after an appeal of an initial decision, accelerated 
decision,

[[Page 9482]]

decision to 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 or consent order issued in accordance with 
Sec. 22.18.
    Hearing means a hearing on the record open to the public and 
conducted under these Consolidated Rules of Practice.
    Hearing Clerk means the Hearing Clerk, Mail Code 1900, U.S. 
Environmental Protection Agency, 401 M St. SW., 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 based upon the record of the proceedings out 
of which it arises.
    Party means any person that participates in a hearing as 
complainant, respondent, or intervenor.
    Permit means a permit issued under section 102 of the Marine 
Protection, Research and Sanctuaries Act, section 402(a) of the Clean 
Water Act, or section 3005(d) of the Resource Conservation and Recovery 
Act, or authority to operate granted pursuant to section 3005(e) of the 
Resource Conservation and Recovery Act.
    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. 22.04(b), 22.16(c) or 22.51 allow a Regional 
Judicial Officer to serve as Presiding Officer.
    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. Correspondence may be addressed to 
the Regional Hearing Clerk, U.S. Environmental Protection Agency 
(address of Regional Office--see Appendix A). 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. 22.04(b).
    Respondent means any person proceeded against in the complaint.
    (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.


Sec. 22.04  Roles of the Environmental Appeals Board, Regional Judicial 
Officer and Presiding Officer; disqualification, withdrawal, and 
reassignment.

    (a) Environmental Appeals Board. The Environmental Appeals Board: 
rules on appeals from the 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 
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. 22.08. Motions directed to the 
Administrator shall not be considered except for motions for 
disqualification pursuant to paragraph (d) of this section, or where 
the Environmental Appeals Board has referred a matter to the 
Administrator.
    (b) Regional Judicial Officer. Each Regional Administrator shall 
designate one or more Regional Judicial Officers to act as Presiding 
Officer in proceedings under subpart I of these Consolidated Rules of 
Practice, and to act as Presiding Officer until the respondent files an 
answer in proceedings under these Consolidated Rules of Practice to 
which subpart I 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, 
nor have any interest in the outcome of, any case in which he serves as 
a Regional Judicial Officer.
    (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 
Presiding Officer 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 Regional Administrator request 
that the Regional Judicial Officer be disqualified from the proceeding. 
Any party may at any time by motion to the Administrator, Regional 
Administrator,

[[Page 9483]]

a member of the Environmental Appeals Board, or the Presiding Officer 
request that he or she disqualify himself or herself from the 
proceeding. If such a motion to disqualify the Regional Administrator 
or Presiding Officer 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. The Administrator, the Regional Administrator, a 
member of the Environmental Appeals Board, the Regional Judicial 
Officer, or the Presiding Officer may at any time withdraw from any 
proceeding in which they deem themselves disqualified or unable to act 
for any reason.
    (2) If the Administrator, the Regional Administrator, the Regional 
Judicial Officer, or the Presiding Officer 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. 22.05  Filing, service, and form of pleadings and documents; 
business confidentiality claims.

    (a) Filing of pleadings and documents. (1) The original and one 
copy of each pleading or 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 pleading or 
document is filed when it is received by the appropriate Clerk.
    (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 pleadings and documents. A copy of each pleading or 
document filed in the proceeding shall be served on the Presiding 
Officer 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, return receipt requested, 
or by any reliable commercial delivery service that provides written 
verification of delivery.
    (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 officer or agency of the United States 
complainant shall serve the officer or agency, or as otherwise 
permitted by law. 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 pleadings and documents other than the complaint, 
rulings, orders, and decisions. All pleadings and documents other than 
the complaint, rulings, orders, and decisions shall be served 
personally, by first class mail (including certified mail or return 
receipt requested), or by any reliable commercial delivery service.
    (c) Form of pleadings and documents. (1) Except as provided herein, 
or by order of the Presiding Officer or of the Environmental Appeals 
Board there are no specific requirements as to the form of pleadings 
and documents.
    (2) The first page of every pleading or other document (after the 
filing of the complaint) shall contain a caption identifying the 
respondent and the docket number. All legal briefs and legal memoranda 
greater than twenty pages in length (excluding attachments) shall 
contain a table of contents and a table of authorities with page 
references.
    (3) The original of any pleading or other 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 pleading, letter or other 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 pleading or document filed by any person shall 
contain the person's name, address, and telephone number, and those of 
its attorney or representative, if any. Any changes in this information 
shall be communicated promptly to the Regional Hearing Clerk, Presiding 
Officer, and all parties to the proceeding. A party who fails to 
furnish such information and any changes thereto shall be deemed to 
have waived its right to notice and service in a proceeding under these 
Consolidated Rules of Practice.
    (5) The Environmental Appeals Board or the Presiding Officer may 
exclude from the record any pleading or document which does not comply 
with this paragraph (c) of 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 pleading or 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 pleading 
or document is filed. A pleading or document filed without a claim of 
business confidentiality shall

[[Page 9484]]

be available to the public for inspection and copying.
    (2) Two versions of any pleading or document which contains 
information claimed confidential shall be filed with the Regional 
Hearing Clerk:
    (i) One version of the pleading or 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 pleading or 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 
pleading or document containing the information claimed confidential 
has been filed with the Regional Hearing Clerk.
    (3) Both versions of the pleading or document shall be served on 
the Presiding Officer and the complainant. Both versions of the 
pleading or document shall be served on any party, amicus, 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. 22.06  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 Environmental 
Appeals 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) or any reliable commercial 
delivery service, upon all parties by the Clerk of the Environmental 
Appeals Board or the Regional Hearing Clerk, as appropriate.


Sec. 22.07  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 
pleading or 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 pleadings and documents is complete upon mailing or when placed 
in the custody of a reliable commercial delivery service. Where a 
pleading or document is served by first class mail or commercial 
delivery service, five (5) days shall be added to the time allowed by 
these Consolidated Rules of Practice for the filing of a responsive 
pleading or document.


Sec. 22.08  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 Regional Judicial Officer, the Presiding 
Officer or any other person who is likely to advise these officials in 
the decision on the case, 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, the Regional Judicial 
Officer, 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 Administrator, Regional Administrator, 
member of the Environmental Appeals Board, Regional Judicial Officer, 
or Presiding Officer who has formally recused himself from all 
adjudicatory functions in a proceeding.


Sec. 22.09  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 Environmental Appeals 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 amicus curiae.

    (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. Any party 
to the proceeding may file a response to a motion to intervene within 
fifteen (15) days after service of the motion for leave to intervene. 
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

[[Page 9485]]

by the Presiding Officer or the Environmental Appeals Board for good 
cause.
    (b) Amicus Curiae. Any person who is not a party to a proceeding 
may move for leave to file an amicus brief. The motion shall identify 
the interest of the applicant and shall state the reasons why the 
proposed amicus brief is desirable. 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 an amicus curiae brief within fifteen (15) days 
after service of the amicus curiae brief.


Sec. 22.12  Consolidation and severance.

    (a) Consolidation. The Presiding Officer 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 engaged in otherwise separate 
proceedings. Where a proceeding subject to the provisions of subpart I 
of this part is consolidated with a proceeding to which subpart I does 
not apply, the procedures of subpart I of this part shall not apply to 
the consolidated proceeding.
    (b) Severance. The Presiding Officer 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 not subject to the public notice 
and comment provisions of Sec. 22.45 may be simultaneously commenced 
and concluded by the issuance of a consent agreement and consent order 
pursuant to Sec. 22.18(b)(2) and (3).


Sec. 22.14  Content and amendment of the 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 alleging the 
violation;
    (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, a brief 
explanation of the severity of each violation alleged and a citation to 
the statutory penalty authority applicable for each violation alleged 
in the complaint;
    (iii) A request for revocation, termination or suspension of all or 
part of a permit, and a statement of the terms and conditions of such 
revocation, termination or suspension; 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 
revocation, termination or suspension; and
    (6) Notice if subpart I of this part applies to such hearing.
    (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 twenty 
(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 revocation, 
termination or suspension, as the case may be, is inappropriate; or 
contends that it is entitled to judgment as a matter of law, it shall 
file an 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 thirty (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 the proposed relief; and whether a hearing is requested.
    (c) Request for a hearing. A hearing upon the issues raised by the 
complaint and answer shall 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. All motions, except those made orally on the record 
during a hearing, shall: be in writing; state the grounds therefor, 
with particularity; set forth the relief sought; and be accompanied by 
any affidavit, certificate, other evidence or legal memorandum relied 
upon. Motions shall be served as provided by Sec. 22.05(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.
    (b) Response to motions. A party's response to any written motion 
must be filed within fifteen (15) days after service of such motion. 
The movant's reply to any written response must be filed within ten 
(10) days after service of such response and shall be limited to issues 
raised in the response. The Presiding Officer or the Environmental

[[Page 9486]]

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 Sec. 22.29(c), 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 action only, an admission of all facts alleged in the 
complaint and a waiver of respondent's right to a hearing on such 
factual allegations. Default by complainant constitutes a waiver of 
complainant's 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 shall set forth the 
grounds for finding a party in default. 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. The motion shall include as attachments any affidavit, 
certificate, other evidence or legal memoranda relied upon in support 
of the motion.
    (c) Default order. When the Presiding Officer finds that default 
has occurred, he shall issue a default order against the defaulting 
party unless the record shows good cause why a default order should not 
be issued. This order shall constitute the initial decision under these 
Consolidated Rules of Practice, except that the relief proposed in the 
complaint or the motion for default shall be ordered unless the record 
clearly demonstrates that the requested relief is inconsistent with 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, Revocation or Suspension of Permits. Any penalty 
assessed in the default order shall become due and payable by 
respondent without further proceedings thirty (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). If the default order revokes or 
suspends a permit, the conditions of the revocation or suspension 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) Any respondent who receives a complaint 
containing a specific proposed penalty may resolve the action at any 
time by paying the proposed penalty in full into the appropriate 
lockbox (see Appendix B of this part) and by filing with the Regional 
Hearing Clerk a copy of the check. If the respondent pays the proposed 
penalty in full within 30 days after receiving the complaint, then no 
answer need be filed. Paragraph (a) of this secttion shall not apply to 
any complaint which seeks a compliance or corrective action order, or 
to revoke, terminate or suspend a permit. In an action subject to the 
public comment provisions of Sec. 22.45, this quick resolution is not 
available until ten (10) days after the close of the comment period.
    (2) Any respondent who wishes to resolve an action 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 thirty (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 sixty days (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 a hearing 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 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 
revocation, termination or suspension; and waives any right to a 
hearing and its right to appeal the consent 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). The parties shall forward 
the executed consent agreement and a proposed consent order to the 
Regional Judicial Officer or Regional Administrator, or, in a 
proceeding commenced at EPA Headquarters, the Environmental Appeals 
Board.
    (3) Consent order. No settlement or consent agreement shall dispose 
of any proceeding under the Consolidated Rules of Practice without a 
consent order from the Regional Judicial Officer or Regional 
Administrator, or, in a proceeding commenced at EPA Headquarters, the 
Environmental Appeals Board. The consent order shall ratify the 
parties' consent agreement and constitute a final order.
    (c) Scope of resolution or settlement. Full payment of the penalty 
proposed in

[[Page 9487]]

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 paragraph (d) of this section 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 concurs 
with a motion for the appointment of a neutral, the Presiding Officer 
shall forward the motion to the Chief Administrative Law Judge who 
shall designate a qualified neutral.


Sec. 22.19  Prehearing information exchange; prehearing conference; 
other discovery.

    (a) Prehearing information exchange. Unless otherwise ordered by 
the Presiding Officer, each party shall provide to all parties: 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 be called; and copies 
of all documents and exhibits which it intends to introduce into 
evidence at the hearing. If the proceeding is for the assessment of a 
penalty, complainant shall specify a proposed penalty if it has not 
done so in the complaint and state the basis for that penalty, and 
respondent shall provide all factual information it considers relevant 
to the assessment of a penalty (except evidence 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. Documents or 
exhibits that have not been included and testimony that has not been 
summarized in prehearing information exchange may not be admitted into 
evidence except as provided in Sec. 22.22(a).
    (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 before him 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 prepare and file for the record a 
written summary of the action taken at the conference. The summary 
shall incorporate any written stipulations or agreements of the parties 
and all rulings and appropriate orders containing directions to the 
parties.
    (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 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 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.
    (4) The Presiding Officer may require the attendance of witnesses 
or the production of documentary evidence by subpoena, if authorized 
under the Act, 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. 22.05(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 paragraph (e) of this section 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 the Act 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 
responded 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,

[[Page 9488]]

inaccurate or outdated, and the additional or corrective information 
has not otherwise been disclosed to the other party pursuant to this 
section.
    (g) Where a party fails to provide information within its control 
as required pursuant to this section, the Presiding Officer may:
    (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(a).


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 an action 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. He shall 
thereupon issue an interlocutory order specifying 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) When an answer is filed, the Regional Hearing Clerk shall 
forward 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.
    (b) Notice of hearing. If the respondent requests a hearing in his 
answer, or one is ordered by the Presiding Officer under Sec. 22.15(c), 
the Presiding Officer shall serve upon the parties a notice of hearing 
setting forth a time and place for the hearing. The Presiding Officer 
may issue the notice of hearing at any appropriate time, but not later 
than twenty (20) days prior to the date set for the hearing.
    (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 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) or (f) to all 
parties at least fifteen (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 these 
Consolidated Rules of Practice 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 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 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

[[Page 9489]]

and is not waived by further participation in the hearing.
    (b) Offers of proof. Whenever evidence is excluded from the record, 
the party offering the evidence may make an offer of proof, which shall 
be included in the record. The offer of proof for excluded oral 
testimony shall consist of a brief statement describing the nature of 
the evidence 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 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 twenty (20) days after the 
parties are notified of the availability of the transcript.


Sec. 22.26  Proposed findings, conclusions, and order.

    Within twenty (20) days after the parties are notified of the 
availability of the transcript, or within such longer time as may be 
fixed by the Presiding Officer, any party may submit for the 
consideration of the Presiding Officer, proposed findings of fact, 
conclusions of law, and a proposed order, together with briefs in 
support thereof. The Presiding Officer shall set a time by which reply 
briefs must be submitted. 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 reply briefs 
under Sec. 22.26 has expired, the Presiding Officer shall issue an 
initial decision. The initial decision shall contain findings of fact, 
conclusions regarding all material issues of law or discretion, as well 
as reasons therefor, and a recommended civil penalty assessment, 
compliance order, corrective action order, or permit revocation and 
suspension, if appropriate. Upon receipt of an initial decision, the 
Regional Hearing Clerk shall forward the record of the proceeding to 
the Hearing Clerk and 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. If 
the Presiding Officer decides to assess a penalty different in amount 
from the penalty recommended to be assessed in the complaint, the 
Presiding Officer shall set forth in the initial decision the specific 
reasons for the increase or decrease. 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 respondent has defaulted, the Presiding Officer shall not assess a 
penalty greater than that recommended to be assessed in the complaint 
or in the motion for default, whichever is less.
    (c) Effect of initial decision. The initial decision of the 
Presiding Officer shall become a final order forty-five (45) days after 
its service upon the parties and without further proceedings unless: a 
party moves to reopen the hearing; a party appeals the initial decision 
to the Environmental Appeals Board; a party moves to set aside a 
default order; or the Environmental Appeals Board elects to review the 
initial decision on its own initiative. 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 made no later than twenty (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 (fifteen) 
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 
Appeals Board shall file a motion within ten (10) days of service of 
the

[[Page 9490]]

order or ruling, requesting that the Presiding Officer forward the 
order or ruling to 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) Decision. If the Presiding Officer has recommended review and 
the Environmental Appeals Board determines that interlocutory review is 
inappropriate, or takes no action within thirty (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 made within ten (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, 401 M Street, SW, Washington, DC 
20460. Hand deliveries may be made at Suite 500, 607 14th Street, NW.). 
Appellant shall serve a copy of the notice of appeal upon the Regional 
Hearing Clerk. Appellant shall simultaneously serve one copy of the 
notice and brief upon all other parties and amicus curiae. 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 twenty (20) days 
after the date on which the first notice of appeal was served.
    (2) Within twenty (20) days of service of notices of appeal and 
briefs under paragraph (a)(1) of this section, any other party or 
amicus curiae may file and serve 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 and amicus curiae. 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) Sua sponte review 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 Environmental Appeals Board, 
and serve it upon the Regional Hearing Clerk and the parties within 
forty-five (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.
    (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. 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 any permit 
revocation, termination or suspension.

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 respondent's 
liability for a civil penalty, compliance or corrective action order, 
or the status of a permit or authority to operate, only for the 
violations and facts alleged in the complaint. 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 forty-five (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 thirty 
(30) days after the effective date of the final order unless otherwise 
ordered. Payment shall be made by forwarding to the appropriate lockbox 
(see Appendix B of this part) a cashier's check or certified check in 
the amount of the penalty assessed in the final order, payable to the 
order of the ``Treasurer, United States of America'', or in a case 
pursuant to Sec. 22.1(a)(7), ``EPA, Hazardous Substances Superfund,'' 
in the amount assessed, and noting the case title and docket

[[Page 9491]]

number. Respondent shall serve copies of the check 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 permit revocation, termination, or suspension, 
shall become effective and enforceable without further proceedings on 
the effective date of the final order unless otherwise ordered.
    (e) Exhaustion of remedies. Respondent may appeal a final order as 
provided under the Act, except that:
    (1) 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 Sec. 22.27(c), respondent 
waives its rights to judicial review; and
    (2) A respondent which elects to resolve a proceeding pursuant to 
Sec. 22.18 waives its rights to judicial review.
    (f) Final orders to Federal agencies on appeal. (1) A final order 
of the Environmental Appeals Board issued to a department, agency, or 
instrumentality of the United States pursuant to Sec. 22.30 shall 
become effective thirty 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 thirty days of 
service of the final order. In that event, a decision by the 
Administrator shall become the final order.
    (2) A motion for reconsideration pursuant to Sec. 22.32 shall not 
toll the thirty-day period described in paragraph (f)(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 shall be filed within ten (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. 22.04(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. 22.01 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. 22.01 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. 
Such notice shall be provided by the issuance of a complaint pursuant 
to Sec. 22.13.
    (c) Default on field citation. When a respondent fails to file a 
timely answer to a field citation issued pursuant to 40 CFR part 59 
1 and fails to submit a timely statement under 
Sec. 22.18(a)(2) of these Consolidated Rules of Practice, the Presiding 
Officer shall issue a default order assessing the penalty proposed in 
the complaint.
---------------------------------------------------------------------------

    \1\  This proposed rule on field citation program published in 
the Federal Register on May 3, 1994 at 59 FR 22776.
---------------------------------------------------------------------------


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. 22.01 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. 22.01 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 location listed in Appendix A of 
this part 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. 22.01 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. 22.01 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 thirty (30) days after the 
order is served, the respondent requests a hearing pursuant to 
Sec. 22.15.


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. 22.01 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. 22.01 through 22.32, this section shall apply.
    (b) Consultation with states. For proceedings pursuant to section 
309(g), the complainant shall, within thirty days after issuing a 
complaint, provide the State agency with the most direct authority over 
the matters at issue in the case an opportunity to consult with the 
complainant.
    (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 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).
    (d) Notwithstanding Sec. 22.31(b), respondent shall make payment of 
a civil penalty assessed pursuant to section 311(b)(6) of the Clean 
Water Act, 33 U.S.C. 1321(b)(6), by sending to the address provided by 
the complainant a cashier's check or certified check in the amount of 
the penalty assessed in the final order payable to the ``Oil Spill 
Liability Trust Fund''.

[[Page 9492]]

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. 22.01 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 of CERCLA 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 of CERCLA 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 issued.
    (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. 22.01 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. 22.01 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.


Sec. 22.42  Supplemental rules governing the administrative assessment 
of civil penalties for violations of compliance orders issued under 
part B of the Safe Drinking Water Act.

    (a) Scope. This section shall apply, in conjunction with 
Secs. 22.01 through 22.32, in administrative proceedings to assess a 
civil penalty under section 1414(g)(3)(B) of the Safe Drinking Water 
Act. Where inconsistencies exist between this section and Secs. 22.01 
through 22.32, this section shall apply.
    (b) Choice of forum. The respondent in a proceeding subject to 
subpart I of this part of these Consolidated Rules of Practice has a 
right to elect a hearing on the record in accordance with 5 U.S.C. 554. 
To exercise this right, the respondent in its answer must request a 
hearing on the record in accordance with 5 U.S.C. 554. Upon such 
request, the Regional Hearing Clerk shall recaption the pleadings and 
documents in the record as necessary.


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. 22.01 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. Where inconsistencies exist between this 
section and Secs. 22.01 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 thirty days after issuance.
    (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 thirty 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 
the notice requirements of 40 CFR part 135.


Sec. 22.44  Supplemental rules governing the termination of permits 
under section 402(a) of the Clean Water Act or under section 3005(d) of 
the Resource Conservation and Recovery Act.

    (a) Scope. This section shall apply, in conjunction with 
Secs. 22.10 through 22.32, in administrative proceedings for the 
termination of permits under section 402(a) of the Clean Water Act or 
under section 3005(d) of the Resource Conservation and Recovery Act. 
Where inconsistencies exist between this section and Secs. 22.01 
through 22.32, this section shall apply.
    (b) In any proceeding to terminate a permit for cause under 40 CFR 
122.64 or 270.42 during the term of the permit:
    (1) The complaint shall, in addition to the requirements of 
Sec. 22.14, contain any additional information specified in 40 CFR 
124.8;
    (2) The Director (as defined in 40 CFR 124.2) shall provide public 
notice of the complaint in accordance with 40 CFR 124.10, and allow for 
public comment in accordance with 40 CFR 124.11; and
    (3) The Presiding Officer shall admit into evidence the contents of 
the Administrative Record described in 40 CFR 124.9, and any public 
comments received.


Sec. 22.45  Supplemental rules governing public notice and comment in 
proceedings under section 309(g) of the Clean Water Act and section 
300h-2(c) of the Safe Drinking Water Act.

    (a) Scope. This section shall apply, in conjunction with 
Secs. 22.01 through 22.32, in administrative proceedings for the 
assessment of any civil penalty under section 309(g) of the Clean Water 
Act (33 U.S.C. 1319(g)), 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. 22.01 through 22.32, this section shall apply.
    (b) Public notice--General. Complainant shall provide the public 
with notice of any complaint filed seeking the assessment of a civil 
penalty. Such notice shall be provided within 30 days following proof 
of service of the complaint on the respondent. Where the parties agree 
to settlement of an action without the filing of a complaint pursuant 
to Sec. 22.13(b), complainant shall provide the public with notice of 
the proposed consent agreement at least 30 days before it will be 
finalized.
    (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 to any 
person who

[[Page 9493]]

requests such notice. The notice shall include:
    (i) The docket number of the complaint;
    (ii) The name and address of the complainant and respondent, and 
the address of the Regional Hearing Clerk from whom information on the 
action may be obtained and to whom appropriate comments may 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;
    (v) A notice that persons may submit comments on the complaint 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 
within 30 days of public notice. The person must provide his name, 
complete mailing address, and state that he wishes to participate in 
the action.
    (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) Commenters may present written comments for the record at any 
time prior to the close of the record.
    (iv) Commenters wishing to present evidence at a hearing on the 
merits shall notify, in writing, the Presiding Officer and the parties 
of their 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 until ten (10) days after the close 
of the comment period provided in paragraph (d)(1) of this section.
    (4) Petition to Set Aside a Consent 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 the proposed consent order.
    (ii) Within 30 days of receipt of the proposed consent order a 
commenter may present to the Regional Administrator (or, for cases 
commenced at EPA Headquarters, the Environmental Appeals Board), and to 
the parties, a petition to set aside the consent order and an objection 
to resolution of the action without a hearing on the basis that 
material evidence was not considered. Copies of the petition shall not 
be sent to the Regional Hearing Clerk or the Presiding Officer. The 
adequacy of the amount of the penalty to be paid in resolution of the 
action is not, by itself, grounds for a petition for a hearing.
    (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 proposed consent 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 EAB 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 consent order;
    (B) Whether complainant adequately considered and responded to the 
petition; and
    (C) Whether a resolution of the action 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 proposed 
consent 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 action without a hearing is appropriate, the Petition Officer shall 
deny the petition and:
    (A) File with the Regional Hearing Clerk;
    (B) Send copies to the parties and the commenter; and
    (C) Publish, as required by law, an order denying the petition and 
stating the reasons for such denial.
    (viii) Upon a finding by the Petition Officer that a resolution of 
the action without a hearing is appropriate, the Regional Administrator 
may issue the consent order, which shall become final 30 days after 
both the order denying the petition and a properly signed consent order 
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 consent order is denied, the consent 
order shall become final 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 any adjudicatory proceedings 
where the complainant designates in the complaint that subpart I shall 
apply, except that the procedures of this subpart shall not apply in 
any case where the Act makes the proceeding subject to section 554 of 
the Administrative Procedure Act, 5 U.S.C. 554.
    (b) Relationship to other provisions. Sections 22011 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. The provisions of this subpart shall supersede any conflicting 
provisions of subparts A through G of this part. The provisions of 
subpart H of this part shall supersede any conflicting provisions of 
this subpart or of subparts A through G of this part.

[[Page 9494]]

Sec. 22.51  Presiding Officer.

    The Presiding Officer shall be a Regional Judicial Officer. The 
Presiding Officer shall 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.


Sec. 22.53  Interlocutory orders or rulings.

    Interlocutory review as set forth in Sec. 22.29 is prohibited.

Appendix A to Part 22--Addresses of EPA Regional Offices and 
Headquarters

Environmental Protection Agency, Region I--John F. Kennedy Federal 
Building, One Congress Street, Boston, MA 02203.
Environmental Protection Agency, Region II--290 Broadway, New York, 
NY 10007-1866.
Environmental Protection Agency, Region III--841 Chestnut Building, 
Philadelphia, PA, 19107.
Environmental Protection Agency, Region IV--Atlanta Federal Center, 
100 Alabama Street, S.W., Atlanta, GA 30365.
Environmental Protection Agency, Region V--77 West Jackson 
Boulevard, Chicago, IL 60604-3590.
Environmental Protection Agency, Region VI--First Interstate Bank 
Tower and Fountain Place, 1445 Ross Avenue, 12th Floor, Suite 1200, 
Dallas, TX 75202-2733.
Environmental Protection Agency, Region VII--726 Minnesota Avenue, 
Kansas City, KS, 66101.
Environmental Protection Agency, Region VIII--999 18th Street, Suite 
500, Denver, CO 80202-2466.
Environmental Protection Agency, Region IX--75 Hawthorne Street, San 
Francisco, CA 94105.
Environmental Protection Agency, Region X--1200 6th Avenue, Seattle, 
WA 98101.
Environmental Protection Agency, Headquarters, 401 M Street, S.W., 
Washington, D.C. 20460.

Appendix B to Part 22--Addresses of Regional and Headquarters Lockboxes

Superfund (all Regions)--(Mellon Bank) EPA--Superfund, PO Box 
371003, Pittsburgh, PA 15251-7003
Region I--(Mellon Bank) EPA Region I Hearing Clerk, PO Box 360197, 
Pittsburgh, PA 15251-6197
Region II--(Mellon Bank) EPA Region II Hearing Clerk, PO Box 360188, 
Pittsburgh, PA 15251-6188
Region III--(Mellon Bank) EPA Region III Hearing Clerk, PO Box 
360515, Pittsburgh, PA 15251-6515
Region IV--(The Citizens and Southern National Bank) EPA Region IV 
Hearing Clerk, PO Box 100142, Atlanta, GA 30384
Region V--(The First National Bank of Chicago) EPA Region V Hearing 
Clerk, PO Box 70753, Chicago, Il 60673
Region VI--(Mellon Bank) EPA Region VI Hearing Clerk, PO Box 360582, 
Pittsburgh, PA 15251-6582
Region VII--(Mellon Bank) EPA Region VII Hearing Clerk, PO Box 
360748, Pittsburgh, PA 15251-6748
Region VIII--(Mellon Bank) EPA Region VIII Hearing Clerk, PO Box 
360859, Pittsburgh, PA 15251-6859
Region IX--(Mellon Bank) EPA Region IX Hearing Clerk, PO Box 360863, 
Pittsburgh, PA 15251-6863
Region X--(Mellon Bank) EPA Region X Hearing Clerk, PO Box 360903, 
Pittsburgh, PA 15251-6903
Headquarters--(Mellon Bank) EPA Headquarters Hearing Clerk, PO Box 
360277, Pittsburgh, PA 15251-6277.

PART 59--[AMENDED]

    1. The authority citation for Part 59 continues to read as follows:

    Authority: 42 U.S.C. 7413(d)(3).

    2. Part 59 proposed on May 3, 1994 at (59 FR 22776) is amended by 
removing subpart B.
[FR Doc. 98-4520 Filed 2-24-98; 8:45 am]
BILLING CODE 6560-50-P