PART 22—CONSOLIDATED RULES OF PRACTICE GOVERNING THE ADMINISTRATIVE ASSESSMENT OF CIVIL PENALTIES AND THE REVOCATION/TERMINATION OR SUSPENSION OF PERMITS Authority: 7 U.S.C. 1361; 15 U.S.C. 2615; 33 U.S.C. 1319, 1342, 1361, 1415 and 1418; 42 U.S.C. 300g-3(g), 6912, 6925, 6928, 6991e and 6992d; 42 U.S.C. 7413(d), 7524(c), 7545(d), 7547, 7601 and 7607(a), 9609, and 11045. Source: 64 FR 40176, July 23, 1999, unless otherwise noted. Subpart A—General § 22.1 Scope of this part. (a) These Consolidated Rules of Practice govern all administrative adjudicatory proceedings for: (1) The assessment of any administrative civil penalty under section 14(a) of the Federal Insecticide, Fungicide, and Rodenticide Act as amended (7 U.S.C. 136 l (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)), and a determination of nonconforming engines, vehicles or equipment under sections 207(c) and 213(d) of the Clean Air Act, as amended (42 U.S.C. 7541(c) and 7547(d)); (3) The assessment of any administrative civil penalty or for the revocation or suspension of any permit under section 105(a) and (f) of the Marine Protection, Research, and Sanctuaries Act as amended (33 U.S.C. 1415(a) and (f)); (4) The issuance of a compliance order or the issuance of a corrective action order, the termination of a permit pursuant to section 3008(a)(3), the suspension or revocation of authority to operate pursuant to section 3005(e), or the assessment of any civil penalty under sections 3008, 9006, and 11005 of the Solid Waste Disposal Act, as amended (42 U.S.C. 6925(d), 6925(e), 6928, 6991e, and 6992d)), except as provided in part 24 of this chapter; (5) The assessment of any administrative civil penalty under sections 16(a) and 207 of the Toxic Substances Control Act (15 U.S.C. 2615(a) and 2647); (6) The assessment of any Class II penalty under sections 309(g) and 311(b)(6), or termination of any permit issued pursuant to section 402(a) of the Clean Water Act, as amended (33 U.S.C. 1319(g), 1321(b)(6), and 1342(a)); (7) The assessment of any administrative civil penalty under section 109 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C. 9609); (8) The assessment of any administrative civil penalty under section 325 of the Emergency Planning and Community Right-To-Know Act of 1986 (“EPCRA”) (42 U.S.C. 11045); (9) The assessment of any administrative civil penalty under sections 1414(g)(3)(B), 1423(c), and 1447(b) of the Safe Drinking Water Act as amended (42 U.S.C. 300g-3(g)(3)(B), 300h-2(c), and 300j-6(b)), or the issuance of any order requiring both compliance and the assessment of an administrative civil penalty under section 1423(c); (10) The assessment of any administrative civil penalty or the issuance of any order requiring compliance under Section 5 of the Mercury-Containing and Rechargeable Battery Management Act (42 U.S.C. 14304). (11) The assessment of any administrative civil penalty under section 1908(b) of the Act To Prevent Pollution From Ships (“APPS”), as amended (33 U.S.C. 1908(b)). (b) The supplemental rules set forth in subparts H and I of this part establish special procedures for proceedings identified in paragraph (a) of this section where the Act allows or requires procedures different from the procedures in subparts A through G of this part. Where inconsistencies exist between subparts A through G of this part and subpart H or I of this part, subparts H or I of this part shall apply. (c) Questions arising at any stage of the proceeding which are not addressed in these Consolidated Rules of Practice shall be resolved at the discretion of the Administrator, Environmental Appeals Board, Regional Administrator, or Presiding Officer, as provided for in these Consolidated Rules of Practice. [64 FR 40176, July 23, 1999, as amended at 65 FR 30904, May 15, 2000; 79 FR 65900, Nov. 6, 2014; 81 FR 73970, Oct. 25, 2016] § 22.2 Use of number and gender. As used in these Consolidated Rules of Practice, words in the singular also include the plural and words in the masculine gender also include the feminine, and vice versa, as the case may require. § 22.3 Definitions. (a) The following definitions apply to these Consolidated Rules of Practice: Act Administrative Law Judge Administrator Agency Business confidentiality claim Clerk of the Board Commenter (1) Submits in writing to the Regional Hearing Clerk that he is providing or intends to provide comments on the proposed assessment of a penalty pursuant to sections 309(g)(4) and 311(b)(6)(C) of the Clean Water Act or section 1423(c) of the Safe Drinking Water Act, whichever applies, and intends to participate in the proceeding; and (2) Provides the Regional Hearing Clerk with a return address. Complainant Consolidated Rules of Practice Environmental Appeals Board Final order (1) An order issued by the Environmental Appeals Board or the Administrator after an appeal of an initial decision, accelerated decision, 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 § 22.27(c); or (3) A final order issued in accordance with § 22.18. Hearing Hearing Clerk Initial decision Party Permit action Person Presiding Officer Proceeding Regional Administrator Regional Hearing Clerk Regional Judicial Officer Respondent (b) Terms defined in the Act and not defined in these Consolidated Rules of Practice are used consistent with the meanings given in the Act. [64 FR 40176, July 23, 1999, as amended at 65 FR 30904, May 15, 2000; 79 FR 65901, Nov. 6, 2014] § 22.4 Powers and duties of the Environmental Appeals Board, Regional Judicial Officer and Presiding Officer; disqualification, withdrawal, and reassignment. (a) Environmental Appeals Board. (2) In exercising its duties and responsibilities under these Consolidated Rules of Practice, the Environmental Appeals Board may do all acts and take all measures as are necessary for the efficient, fair and impartial adjudication of issues arising in a proceeding, including imposing procedural sanctions against a party who without adequate justification fails or refuses to comply with these Consolidated Rules of Practice or with an order of the Environmental Appeals Board. Such sanctions may include drawing adverse inferences against a party, striking a party's pleadings or other submissions from the record, and denying any or all relief sought by the party in the proceeding. (b) Regional Judicial Officer. (c) Presiding Officer. (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. (2) If the Administrator, the Regional Administrator, the Regional Judicial Officer, or the Administrative Law Judge is disqualified or withdraws from the proceeding, a qualified individual who has none of the infirmities listed in paragraph (d)(1) of this section shall be assigned as a replacement. The Administrator shall assign a replacement for a Regional Administrator who withdraws or is disqualified. Should the Administrator withdraw or be disqualified, the Regional Administrator from the Region where the case originated shall replace the Administrator. If that Regional Administrator would be disqualified, the Administrator shall assign a Regional Administrator from another Region to replace the Administrator. The Regional Administrator shall assign a new Regional Judicial Officer if the original Regional Judicial Officer withdraws or is disqualified. The Chief Administrative Law Judge shall assign a new Administrative Law Judge if the original Administrative Law Judge withdraws or is disqualified. (3) The Chief Administrative Law Judge, at any stage in the proceeding, may reassign the case to an Administrative Law Judge other than the one originally assigned in the event of the unavailability of the Administrative Law Judge or where reassignment will result in efficiency in the scheduling of hearings and would not prejudice the parties. [64 FR 40176, July 23, 1999, as amended at 82 FR 2234, Jan. 9, 2017] § 22.5 Filing, service by the parties, and form of all filed documents; business confidentiality claims. (a) Filing of documents. (2) When the Presiding Officer corresponds directly with the parties, the original of the correspondence shall be filed with the Regional Hearing Clerk. Parties who correspond directly with the Presiding Officer shall file a copy of the correspondence with the Regional Hearing Clerk. (3) A certificate of service shall accompany each document filed or served in the proceeding. (b) Service of documents. (1) Service of complaint. (ii)(A) Where respondent is a domestic or foreign corporation, a partnership, or an unincorporated association which is subject to suit under a common name, complainant shall serve an officer, partner, a managing or general agent, or any other person authorized by appointment or by Federal or State law to receive service of process. (B) Where respondent is an agency of the United States complainant shall serve that agency as provided by that agency's regulations, or in the absence of controlling regulation, as otherwise permitted by law. Complainant should also provide a copy of the complaint to the senior executive official having responsibility for the overall operations of the geographical unit where the alleged violations arose. If the agency is a corporation, the complaint shall be served as prescribed in paragraph (b)(1)(ii)(A) of this section. (C) Where respondent is a State or local unit of government, agency, department, corporation or other instrumentality, complainant shall serve the chief executive officer thereof, or as otherwise permitted by law. Where respondent is a State or local officer, complainant shall serve such officer. (iii) Proof of service of the complaint shall be made by affidavit of the person making personal service, or by properly executed receipt. Such proof of service shall be filed with the Regional Hearing Clerk immediately upon completion of service. (2) Service of filed documents other than the complaint, rulings, orders, and decisions. (c) Form of documents. (2) The first page of every filed document shall contain a caption identifying the respondent and the docket number. All legal briefs and legal memoranda greater than 20 pages in length (excluding attachments) shall contain a table of contents and a table of authorities with page references. (3) The original of any filed document (other than exhibits) shall be signed by the party filing or by its attorney or other representative. The signature constitutes a representation by the signer that he has read the document, that to the best of his knowledge, information and belief, the statements made therein are true, and that it is not interposed for delay. (4) The first document filed by any person shall contain the name, mailing address, telephone number, and email address of an individual authorized to receive service relating to the proceeding on behalf of the person. Parties shall promptly file any changes in this information with the Headquarters or Regional Hearing Clerk or the Clerk of the Board, as appropriate, and serve copies on the Presiding Officer and all parties to the proceeding. If a party fails to furnish such information and any changes thereto, service to the party's last known address shall satisfy the requirements of paragraph (b)(2) of this section and § 22.6. (5) The Environmental Appeals Board or the Presiding Officer may exclude from the record any document which does not comply with this section. Written notice of such exclusion, stating the reasons therefor, shall be promptly given to the person submitting the document. Such person may amend and resubmit any excluded document upon motion granted by the Environmental Appeals Board or the Presiding Officer, as appropriate. (d) Confidentiality of business information. (2) Two versions of any document which contains information claimed confidential shall be filed with the Regional Hearing Clerk: (i) One version of the document shall contain the information claimed confidential. The cover page shall include the information required under paragraph (c)(2) of this section and the words “Business Confidentiality Asserted”. The specific portion(s) alleged to be confidential shall be clearly identified within the document. (ii) A second version of the document shall contain all information except the specific information claimed confidential, which shall be redacted and replaced with notes indicating the nature of the information redacted. The cover page shall state that information claimed confidential has been deleted and that a complete copy of the document containing the information claimed confidential has been filed with the Regional Hearing Clerk. (3) Both versions of the document shall be served on the Presiding Officer and the complainant. Both versions of the document shall be served on any party, non-party participant, or representative thereof, authorized to receive the information claimed confidential by the person making the claim of confidentiality. Only the redacted version shall be served on persons not authorized to receive the confidential information. (4) Only the second, redacted version shall be treated as public information. An EPA officer or employee may disclose information claimed confidential in accordance with paragraph (d)(1) of this section only as authorized under 40 CFR part 2. [64 FR 40176, July 23, 1999, as amended at 69 FR 77639, Dec. 28, 2004; 79 FR 65901, Nov. 6, 2014; 82 FR 2234, Jan. 9, 2017] § 22.6 Filing and service of rulings, orders and decisions. All rulings, orders, decisions, and other documents issued by the Regional Administrator or Presiding Officer shall be filed with the Headquarters or Regional Hearing Clerk, as appropriate, in any manner allowed for the service of such documents. All rulings, orders, decisions, and other documents issued by the Environmental Appeals Board shall be filed with the Clerk of the Board. The Clerk of the Board, the Headquarters Hearing Clerk, or the Regional Hearing Clerk, as appropriate, must serve copies of such rulings, orders, decisions and other documents on all parties. Service may be made by U.S. mail (including by certified mail or return receipt requested, Overnight Express and Priority Mail), EPA's internal mail, any reliable commercial delivery service, or electronic means (including but not necessarily limited to facsimile and email). [82 FR 2234, Jan. 9, 2017] § 22.7 Computation and extension of time. (a) Computation. (b) Extensions of time. (c) Completion of service. [64 FR 40176, July 23, 1999, as amended at 82 FR 2234, Jan. 9, 2017] § 22.8 Ex parte At no time after the issuance of the complaint shall the Administrator, the members of the Environmental Appeals Board, the Regional Administrator, the Presiding Officer or any other person who is likely to advise these officials on any decision in the proceeding, discuss ex parte ex parte § 22.9 Examination of documents filed. (a) Subject to the provisions of law restricting the public disclosure of confidential information, any person may, during Agency business hours inspect and copy any document filed in any proceeding. Such documents shall be made available by the Regional Hearing Clerk, the Hearing Clerk, or the Clerk of the Board, as appropriate. (b) The cost of duplicating documents shall be borne by the person seeking copies of such documents. The Agency may waive this cost in its discretion. Subpart B—Parties and Appearances § 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. § 22.11 Intervention and non-party briefs. (a) Intervention. (b) Non-party briefs. § 22.12 Consolidation and severance. (a) Consolidation. (b) Severance. Subpart C—Prehearing Procedures § 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 § 22.14. (b) Notwithstanding paragraph (a) of this section, where the parties agree to settlement of one or more causes of action before the filing of a complaint, a proceeding may be simultaneously commenced and concluded by the issuance of a consent agreement and final order pursuant to § 22.18(b)(2) and (3). § 22.14 Complaint. (a) Content of complaint. (1) A statement reciting the section(s) of the Act authorizing the issuance of the complaint; (2) Specific reference to each provision of the Act, implementing regulations, permit or order which respondent is alleged to have violated; (3) A concise statement of the factual basis for each violation alleged; (4) A description of all relief sought, including one or more of the following: (i) The amount of the civil penalty which is proposed to be assessed, and a brief explanation of the proposed penalty; (ii) Where a specific penalty demand is not made, the number of violations (where applicable, days of violation) for which a penalty is sought, a brief explanation of the severity of each violation alleged and a recitation of the statutory penalty authority applicable for each violation alleged in the complaint; (iii) A request for a Permit Action and a statement of its proposed terms and conditions; or (iv) A request for a compliance or corrective action order and a statement of the terms and conditions thereof; (5) Notice of respondent's right to request a hearing on any material fact alleged in the complaint, or on the appropriateness of any proposed penalty, compliance or corrective action order, or Permit Action; (6) Notice if subpart I of this part applies to the proceeding; (7) The address of the Regional Hearing Clerk; and (8) Instructions for paying penalties, if applicable. (b) Rules of practice. (c) Amendment of the complaint. (d) Withdrawal of the complaint. § 22.15 Answer to the complaint. (a) General. (b) Contents of the answer. (c) Request for a hearing. (d) Failure to admit, deny, or explain. (e) Amendment of the answer. § 22.16 Motions. (a) General. (1) Be in writing; (2) State the grounds therefor, with particularity; (3) Set forth the relief sought; and (4) Be accompanied by any affidavit, certificate, other evidence or legal memorandum relied upon. (b) Response to motions. (c) Decision. (d) Oral argument. [64 FR 40176, July 23, 1999, as amended at 82 FR 2234, Jan. 9, 2017] § 22.17 Default. (a) Default. (b) Motion for default. (c) Default order. (d) Payment of penalty; effective date of compliance or corrective action orders, and Permit Actions. § 22.18 Quick resolution; settlement; alternative dispute resolution. (a) Quick resolution. (2) Any respondent who wishes to resolve a proceeding by paying the proposed penalty instead of filing an answer, but who needs additional time to pay the penalty, may file a written statement with the Regional Hearing Clerk within 30 days after receiving the complaint stating that the respondent agrees to pay the proposed penalty in accordance with paragraph (a)(1) of this section. The written statement need not contain any response to, or admission of, the allegations in the complaint. Within 60 days after receiving the complaint, the respondent shall pay the full amount of the proposed penalty. Failure to make such payment within 60 days of receipt of the complaint may subject the respondent to default pursuant to § 22.17. (3) Upon receipt of payment in full, the Regional Judicial Officer or Regional Administrator, or, in a proceeding commenced at EPA Headquarters, the Environmental Appeals Board, shall issue a final order. Payment by respondent shall constitute a waiver of respondent's rights to contest the allegations and to appeal the final order. (b) Settlement. (2) Consent agreement. (3) Conclusion of proceeding. (c) Scope of resolution or settlement. (d) Alternative means of dispute resolution. et seq., (2) Dispute resolution under this paragraph (d) does not divest the Presiding Officer of jurisdiction and does not automatically stay the proceeding. All provisions of these Consolidated Rules of Practice remain in effect notwithstanding any dispute resolution proceeding. (3) The parties may choose any person to act as a neutral, or may move for the appointment of a neutral. If the Presiding Officer grants a motion for the appointment of a neutral, the Presiding Officer shall forward the motion to the Chief Administrative Law Judge, except in proceedings under subpart I of this part, in which the Presiding Officer shall forward the motion to the Regional Administrator. The Chief Administrative Law Judge or Regional Administrator, as appropriate, shall designate a qualified neutral. § 22.19 Prehearing information exchange; prehearing conference; other discovery. (a) Prehearing information exchange. (2) Each party's prehearing information exchange shall contain: (i) The names of any expert or other witnesses it intends to call at the hearing, together with a brief narrative summary of their expected testimony, or a statement that no witnesses will be called; and (ii) Copies of all documents and exhibits which it intends to introduce into evidence at the hearing. (3) If the proceeding is for the assessment of a penalty and complainant has already specified a proposed penalty, complainant shall explain in its prehearing information exchange how the proposed penalty was calculated in accordance with any criteria set forth in the Act, and the respondent shall explain in its prehearing information exchange why the proposed penalty should be reduced or eliminated. (4) If the proceeding is for the assessment of a penalty and complainant has not specified a proposed penalty, each party shall include in its prehearing information exchange all factual information it considers relevant to the assessment of a penalty. Within 15 days after respondent files its prehearing information exchange, complainant shall file a document specifying a proposed penalty and explaining how the proposed penalty was calculated in accordance with any criteria set forth in the Act. (b) Prehearing conference. (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. (d) Location of prehearing conference. (e) Other discovery. (i) Will neither unreasonably delay the proceeding nor unreasonably burden the non-moving party; (ii) Seeks information that is most reasonably obtained from the non-moving party, and which the non-moving party has refused to provide voluntarily; and (iii) Seeks information that has significant probative value on a disputed issue of material fact relevant to liability or the relief sought. (2) Settlement positions and information regarding their development (such as penalty calculations for purposes of settlement based upon Agency settlement policies) shall not be discoverable. (3) The Presiding Officer may order depositions upon oral questions only in accordance with paragraph (e)(1) of this section and upon an additional finding that: (i) The information sought cannot reasonably be obtained by alternative methods of discovery; or (ii) There is a substantial reason to believe that relevant and probative evidence may otherwise not be preserved for presentation by a witness at the hearing. (4) The Presiding Officer may require the attendance of witnesses or the production of documentary evidence by subpoena, if authorized under the Act. The Presiding Officer may issue a subpoena for discovery purposes only in accordance with paragraph (e)(1) of this section and upon an additional showing of the grounds and necessity therefor. Subpoenas shall be served in accordance with § 22.5(b)(1). Witnesses summoned before the Presiding Officer shall be paid the same fees and mileage that are paid witnesses in the courts of the United States. Any fees shall be paid by the party at whose request the witness appears. Where a witness appears pursuant to a request initiated by the Presiding Officer, fees shall be paid by the Agency. (5) Nothing in this paragraph (e) shall limit a party's right to request admissions or stipulations, a respondent's right to request Agency records under the Federal Freedom of Information Act, 5 U.S.C. 552, or EPA's authority under any applicable law to conduct inspections, issue information request letters or administrative subpoenas, or otherwise obtain information. (f) Supplementing prior exchanges. (g) Failure to exchange information. (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 § 22.17(c). § 22.20 Accelerated decision; decision to dismiss. (a) General. (b) Effect. (2) If an accelerated decision or a decision to dismiss is rendered on less than all issues or claims in the proceeding, the Presiding Officer shall determine what material facts exist without substantial controversy and what material facts remain controverted. The partial accelerated decision or the order dismissing certain counts shall specify the facts which appear substantially uncontroverted, and the issues and claims upon which the hearing will proceed. Subpart D—Hearing Procedures § 22.21 Assignment of Presiding Officer; scheduling the hearing. (a) Assignment of Presiding Officer. (b) Notice of hearing. (c) Postponement of hearing. (d) Location of the hearing. § 22.22 Evidence. (a) General. (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. (c) Written testimony. (d) Admission of affidavits where the witness is unavailable. (e) Exhibits. (f) Official notice. § 22.23 Objections and offers of proof. (a) Objection. (b) Offers of proof. § 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. § 22.25 Filing the transcript. The hearing shall be transcribed verbatim. Promptly following the taking of the last evidence, the reporter shall transmit to the Regional Hearing Clerk the original and as many copies of the transcript of testimony as are called for in the reporter's contract with the Agency, and also shall transmit to the Presiding Officer a copy of the transcript. A certificate of service shall accompany each copy of the transcript. The Regional Hearing Clerk shall notify all parties of the availability of the transcript and shall furnish the parties with a copy of the transcript upon payment of the cost of reproduction, unless a party can show that the cost is unduly burdensome. Any person not a party to the proceeding may receive a copy of the transcript upon payment of the reproduction fee, except for those parts of the transcript ordered to be kept confidential by the Presiding Officer. Any party may file a motion to conform the transcript to the actual testimony within 30 days after receipt of the transcript, or 45 days after the parties are notified of the availability of the transcript, whichever is sooner. § 22.26 Proposed findings, conclusions, and order. After the hearing, any party may file proposed findings of fact, conclusions of law, and a proposed order, together with briefs in support thereof. The Presiding Officer shall set a schedule for filing these documents and any reply briefs, but shall not require them before the last date for filing motions under § 22.25 to conform the transcript to the actual testimony. All submissions shall be in writing, shall be served upon all parties, and shall contain adequate references to the record and authorities relied on. Subpart E—Initial Decision, Motion To Reopen a Hearing, and Motion To Set Aside a Default Order § 22.27 Initial Decision. (a) Filing and contents. (b) Amount of civil penalty. (c) Effect of initial decision. (1) A party moves to reopen the hearing; (2) A party appeals the initial decision to the Environmental Appeals Board; (3) A party moves to set aside a default order that constitutes an initial decision; or (4) The Environmental Appeals Board elects to review the initial decision on its own initiative. (d) Exhaustion of administrative remedies. § 22.28 Motion to reopen a hearing or to set aside a default order. (a) Motion to reopen a hearing Filing and content. (2) Disposition of motion to reopen a hearing. (b) Motion to set aside default order Filing and content. (2) Effect of motion to set aside default. [82 FR 2235, Jan. 9, 2017] Subpart F—Appeals and Administrative Review § 22.29 Appeal from or review of interlocutory orders or rulings. (a) Request for interlocutory appeal. (b) Availability of interlocutory appeal. (1) The order or ruling involves an important question of law or policy concerning which there is substantial grounds for difference of opinion; and (2) Either an immediate appeal from the order or ruling will materially advance the ultimate termination of the proceeding, or review after the final order is issued will be inadequate or ineffective. (c) Interlocutory review. § 22.30 Appeal from or review of initial decision. (a) Notice of appeal and appeal brief Filing an appeal Filing deadline and who may appeal. (ii) Filing requirements. (iii) Content. e.g., (iv) Multiple appeals. (2) Response brief. e.g., (3) Length Briefs. (ii) Motions. (b) Review initiated by the Environmental Appeals Board. (c) Scope of appeal or review. (d) Argument before the Environmental Appeals Board. (e) Motions on appeal General. (2) Disposition of a motion for a procedural order. (3) Timing on motions for extension of time. (f) Decision. [64 FR 40176, July 23, 1999, as amended at 68 FR 2204, Jan. 16, 2003; 69 FR 77639, Dec. 28, 2004; 79 FR 65901, Nov. 6, 2014; 80 FR 13252, Mar. 13, 2015; 82 FR 2235, Jan. 9, 2017] Subpart G—Final Order § 22.31 Final order. (a) Effect of final order. (b) Effective date. (c) Payment of a civil penalty. (d) Other relief. (e) Final orders to Federal agencies on appeal. (2) A motion for reconsideration pursuant to § 22.32 shall not toll the 30-day period described in paragraph (e)(1) of this section unless specifically so ordered by the Environmental Appeals Board. § 22.32 Motion to reconsider a final order. Motions to reconsider a final order issued pursuant to § 22.30 shall be filed within 10 days after service of the final order. Motions must set forth the matters claimed to have been erroneously decided and the nature of the alleged errors. Motions for reconsideration under this provision shall be directed to, and decided by, the Environmental Appeals Board. Motions for reconsideration directed to the Administrator, rather than to the Environmental Appeals Board, will not be considered, except in cases that the Environmental Appeals Board has referred to the Administrator pursuant to § 22.4(a) and in which the Administrator has issued the final order. A motion for reconsideration shall not stay the effective date of the final order unless so ordered by the Environmental Appeals Board. Subpart H—Supplemental Rules § 22.33 [Reserved] § 22.34 Supplemental rules governing the administrative assessment of civil penalties under the Clean Air Act. (a) Scope. (b) Issuance of notice. [81 FR 73971, Oct. 25, 2016] § 22.35 Supplemental rules governing the administrative assessment of civil penalties under the Federal Insecticide, Fungicide, and Rodenticide Act. (a) Scope. (b) Venue. § 22.36 [Reserved] § 22.37 Supplemental rules governing administrative proceedings under the Solid Waste Disposal Act. (a) Scope. (b) Corrective action and compliance orders. § 22.38 Supplemental rules of practice governing the administrative assessment of civil penalties under the Clean Water Act. (a) Scope. (b) Consultation with States. (c) Administrative procedure and judicial review. § 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. (b) Judicial review. (c) Payment of civil penalty assessed. § 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). (a) Scope. (b) Collection of civil penalty. § 22.42 Supplemental rules governing the administrative assessment of civil penalties for violations of compliance orders issued to owners or operators of public water systems under part B of the Safe Drinking Water Act. (a) Scope. (b) Choice of forum. § 22.43 Supplemental rules governing the administrative assessment of civil penalties against a federal agency under the Safe Drinking Water Act. (a) Scope. (b) Effective date of final penalty order. (c) Public notice of final penalty order. (1) The docket number of the order; (2) The address and phone number of the Regional Hearing Clerk from whom a copy of the order may be obtained; (3) The location of the facility where violations were found; (4) A description of the violations; (5) The penalty that was assessed; and (6) A notice that any interested person may, within 30 days of the date the order becomes final, obtain judicial review of the penalty order pursuant to section 1447(b) of the Safe Drinking Water Act, and instruction that persons seeking judicial review shall provide copies of any appeal to the persons described in 40 CFR 135.11(a). § 22.44 Supplemental rules of practice governing the termination of permits under section 402(a) of the Clean Water Act or under section 3008(a)(3) of the Resource Conservation and Recovery Act. (a) Scope of this subpart. (b) In any proceeding to terminate a permit for cause under § 122.64 or § 270.43 of this chapter during the term of the permit: (1) The complaint shall, in addition to the requirements of § 22.14(b), contain any additional information specified in § 124.8 of this chapter; (2) The Director (as defined in § 124.2 of this chapter) shall provide public notice of the complaint in accordance with § 124.10 of this chapter, and allow for public comment in accordance with § 124.11 of this chapter; and (3) The Presiding Officer shall admit into evidence the contents of the Administrative Record described in § 124.9 of this chapter, and any public comments received. [65 FR 30904, May 15, 2000] § 22.45 Supplemental rules governing public notice and comment in proceedings under sections 309(g) and 311(b)(6)(B)(ii) of the Clean Water Act and section 1423(c) of the Safe Drinking Water Act. (a) Scope. (b) Public notice General. (2) Type and content of public notice. (i) The docket number of the proceeding; (ii) The name and address of the complainant and respondent, and the person from whom information on the proceeding may be obtained, and the address of the Regional Hearing Clerk to whom appropriate comments shall be directed; (iii) The location of the site or facility from which the violations are alleged, and any applicable permit number; (iv) A description of the violation alleged and the relief sought; and (v) A notice that persons shall submit comments to the Regional Hearing Clerk, and the deadline for such submissions. (c) Comment by a person who is not a party. (1) Participation in proceeding. (ii) The Presiding Officer shall provide notice of any hearing on the merits to any person who has met the requirements of paragraph (c)(1)(i) of this section at least 20 days prior to the scheduled hearing. (iii) A commenter may present written comments for the record at any time prior to the close of the record. (iv) A commenter wishing to present evidence at a hearing on the merits shall notify, in writing, the Presiding Officer and the parties of its intent at least 10 days prior to the scheduled hearing. This notice must include a copy of any document to be introduced, a description of the evidence to be presented, and the identity of any witness (and qualifications if an expert), and the subject matter of the testimony. (v) In any hearing on the merits, a commenter may present evidence, including direct testimony subject to cross examination by the parties. (vi) The Presiding Officer shall have the discretion to establish the extent of commenter participation in any other scheduled activity. (2) Limitations. (3) Quick resolution and settlement. (4) Petition to set aside a consent agreement and proposed final order. (ii) Within 30 days of receipt of the consent agreement and proposed final order a commenter may petition the Regional Administrator (or, for cases commenced at EPA Headquarters, the Environmental Appeals Board), to set aside the consent agreement and proposed final order on the basis that material evidence was not considered. Copies of the petition shall be served on the parties, but shall not be sent to the Regional Hearing Clerk or the Presiding Officer. (iii) Within 15 days of receipt of a petition, the complainant may, with notice to the Regional Administrator or Environmental Appeals Board and to the commenter, withdraw the consent agreement and proposed final order to consider the matters raised in the petition. If the complainant does not give notice of withdrawal within 15 days of receipt of the petition, the Regional Administrator or Environmental Appeals Board shall assign a Petition Officer to consider and rule on the petition. The Petition Officer shall be another Presiding Officer, not otherwise involved in the case. Notice of this assignment shall be sent to the parties, and to the Presiding Officer. (iv) Within 30 days of assignment of the Petition Officer, the complainant shall present to the Petition Officer a copy of the complaint and a written response to the petition. A copy of the response shall be provided to the parties and to the commenter, but not to the Regional Hearing Clerk or Presiding Officer. (v) The Petition Officer shall review the petition, and complainant's response, and shall file with the Regional Hearing Clerk, with copies to the parties, the commenter, and the Presiding Officer, written findings as to: (A) The extent to which the petition states an issue relevant and material to the issuance of the proposed final order; (B) Whether complainant adequately considered and responded to the petition; and (C) Whether a resolution of the proceeding by the parties is appropriate without a hearing. (vi) Upon a finding by the Petition Officer that a hearing is appropriate, the Presiding Officer shall order that the consent agreement and proposed final order be set aside and shall establish a schedule for a hearing. (vii) Upon a finding by the Petition Officer that a resolution of the proceeding without a hearing is appropriate, the Petition Officer shall issue an order denying the petition and stating reasons for the denial. The Petition Officer shall: (A) File the order with the Regional Hearing Clerk; (B) Serve copies of the order on the parties and the commenter; and (C) Provide public notice of the order. (viii) Upon a finding by the Petition Officer that a resolution of the proceeding without a hearing is appropriate, the Regional Administrator may issue the proposed final order, which shall become final 30 days after both the order denying the petition and a properly signed consent agreement are filed with the Regional Hearing Clerk, unless further petition for review is filed by a notice of appeal in the appropriate United States District Court, with coincident notice by certified mail to the Administrator and the Attorney General. Written notice of appeal also shall be filed with the Regional Hearing Clerk, and sent to the Presiding Officer and the parties. (ix) If judicial review of the final order is denied, the final order shall become effective 30 days after such denial has been filed with the Regional Hearing Clerk. §§ 22.46-22.49 [Reserved] Subpart I—Administrative Proceedings Not Governed by Section 554 of the Administrative Procedure Act § 22.50 Scope of this subpart. (a) Scope. (1) The assessment of a penalty under sections 309(g)(2)(A) and 311(b)(6)(B)(i) of the Clean Water Act (33 U.S.C. 1319(g)(2)(A) and 1321(b)(6)(B)(i)). (2) The assessment of a penalty under sections 1414(g)(3)(B) and 1423(c) of the Safe Drinking Water Act (42 U.S.C. 300g-3(g)(3)(B) and 300h-2(c)), except where a respondent in a proceeding under section 1414(g)(3)(B) requests in its answer a hearing on the record in accordance with section 554 of the Administrative Procedure Act, 5 U.S.C. 554. (b) Relationship to other provisions. § 22.51 Presiding Officer. The Presiding Officer shall be a Regional Judicial Officer. The Presiding Officer shall conduct the hearing, and rule on all motions until an initial decision has become final or has been appealed. § 22.52 Information exchange and discovery. Respondent's information exchange pursuant to § 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 § 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.