PART 305—COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT (CERCLA) ADMINISTRATIVE HEARING PROCEDURES FOR CLAIMS AGAINST THE SUPERFUND Authority: 42 U.S.C. 9601 et seq.; Source: 58 FR 7706, Feb. 8, 1993, unless otherwise noted. Subpart A—General § 305.1 Scope. (a)(1) This part governs all administrative proceedings for the total or partial denial of response claims asserted against the Hazardous Substance Superfund (the Fund) pursuant to sections 111(a)(2) and 122(b)(1) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), as amended by the Superfund Amendments and Reauthorization Act of 1986 (SARA), 42 U.S.C. 9601 et seq. (2) Sections 111(a)(2) and 122(b)(1) of CERCLA authorize EPA, among other things, to use the Fund to reimburse certain persons who file claims for eligible response costs incurred in carrying out the National Oil and Hazardous Substances Pollution Contingency Plan (NCP), 40 CFR part 300. In the event that the Claims Official declines to pay all or part of a claim, a claimant may request an administrative hearing pursuant to § 305.4(a) within 30 days after receiving notice of the Claims Official's decision. The procedures governing such a proceeding are set forth in this part. (b) Procedural questions arising at any stage of the proceeding which are not addressed in this part shall be resolved at the discretion of the Claims Official, the Review Officer, or the Presiding Officer, as appropriate. § 305.2 Use of number and gender. As used in this part, words in the singular also include the plural and words in the masculine gender also include the feminine, as the case may require. § 305.3 Definitions. (a) The following definitions apply to this part: Administrative Law Judge Agency EPA CERCLA the Act et seq. Claim Claimant Claims Official Confidential business information CBI Final order Fund Superfund Hearing Hearing Clerk National Contingency Plan NCP Party Preauthorization Presiding Officer Proceeding Request for a Hearing Requestor Review Officer Voluntary agreement (b) Terms defined in CERCLA or in 40 CFR part 300 and not defined in this part are used consistent with the meanings given in CERCLA or 40 CFR part 300. § 305.4 Powers and duties of the Review Officer and the Presiding Officer; disqualification. (a) Review Officer. sua sponte, (b) Presiding Officer. (1) Conduct administrative hearings under this part; (2) Rule upon motions, requests, and offers of proof, dispose of procedural requests, and issue all necessary orders; (3) Administer oaths and affirmations; (4) Examine witnesses and receive documentary or other evidence; (5) Order a party, or an officer or agent thereof, for good cause, upon motion, or sua sponte, (6) Admit or exclude evidence; (7) Hear and decide questions of law and fact; (8) Require parties to attend conferences for the settlement or simplification of the issues, or the expedition of the proceedings; (9) Extend the time limit for a final order in the hearing for a period not to exceed 60 days; (10) Render findings of fact, conclusions of law, and a final order; (11) Assess costs of the proceeding pursuant to § 305.36(b); (12) Do all other acts and take all measures necessary for the maintenance of order and for the efficient and impartial adjudication of issues arising in proceedings governed by this part; and (13) Resolve all disputes based on the evidence and applicable law; see § 305.31 concerning evidence. (c) The Presiding Officer shall notify the parties that the Request for a Hearing has been assigned to him, and that he has received the case file from the Chief Administrative Law Judge. After ruling on any objections to jurisdiction, or final disposition of any objections to disqualification, the Presiding Officer shall render a final order within 90 days after he affirmatively accepts such jurisdiction. The Presiding Officer shall render a final order within the allotted time, unless all parties agree in writing to an extension, or unless, in his discretion, either upon motion of a party or sua sponte, sua sponte (d) Disqualification; withdrawal. (2) If the Review 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 to replace him. The Administrator shall appoint a new Review Officer. The Chief Administrative Law Judge shall assign a new Presiding Officer from among the available Administrative Law Judges. (3) The Chief Administrative Law Judge shall have the power to rule on motions for disqualification as described in paragraph (d)(1) of this section and may, at any stage in the hearing, 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 will not prejudice the parties. § 305.5 Filing, service, and form of pleadings and documents. (a) Filing of pleadings and documents. (2) A certificate of service shall accompany each document filed or served. Except as otherwise provided, a party filing documents with the Hearing Clerk, after filing of the answer, shall serve copies thereof upon all other parties and the Presiding Officer. The Presiding Officer shall maintain a duplicate file during the course of the proceeding. (3) When the Presiding Officer corresponds directly with a party, the original of the correspondence shall be sent to the Hearing Clerk, a copy shall be maintained by the Presiding Officer in the duplicate file, and a copy shall be sent to all parties. A party who corresponds directly with the Presiding Officer shall, in addition to serving all other parties, send a copy of all such correspondence to the Hearing Clerk. A certificate of service shall accompany each document served under this paragraph. (b) Service of pleadings and documents Service of Request for a Hearing. (2) Service of documents other than the Request for a Hearing. (ii) Service upon the Claims Official, the Review Officer, or the Hearing Clerk shall be made by delivering two copies of the document to the appropriate official in the manner prescribed in paragraph (b)(2)(i) of this section. (iii) Service upon a domestic or foreign corporation or upon a partnership or other unincorporated association that is subject to an action under a common name shall be made in the manner prescribed in paragraph (b)(2)(i) of this section, directed to an officer, partner, a managing or general agent, or to any other person authorized by appointment or by Federal or State law to receive service of process. (iv) Service upon a State or local unit of government, or a State or local officer, agency, department, corporation or other instrumentality shall be made by serving a copy of the document in the manner prescribed by the law of the State for the service of process on any such persons, or: (A) If upon a State or local unit of government, or a State or local department, agency, corporation or other instrumentality, by personal service or certified mail, as prescribed by paragraph (b)(1) of this section, directed to the Chief Executive Officer thereof; (B) If upon a State or local officer, by personal service or certified mail, as prescribed by paragraph (b)(1) of this section, to such officer. (v) Service upon an officer of agency of the United States shall be made by delivering a copy of the document to the officer or agency, or in any manner prescribed for service by applicable regulations. If the agency is a corporation, the document shall be served as prescribed in paragraph (b)(2)(iii) of this section. (c) Form of pleadings and documents. (2) The first page of every pleading, letter, or other document shall contain a caption identifying the Requestor, the docket number assigned by the Review Officer, and the official to whom the document is directed. All pleadings greater than ten pages in length, and all legal briefs, shall contain a table of contents and a table of citations with page references. (3) The original of any pleading, letter or other document (other than exhibits) shall be signed by the party filing or by his counsel 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 initial document filed by any party shall contain his name, address and telephone number. Any changes in this information shall be communicated promptly to the appropriate official, and all parties to the proceeding. A party who fails to furnish such information and any changes thereto shall be deemed to have waived his right to notice and service under this part. (5) The Claims Official, Review Officer, Presiding Officer, or Hearing Clerk may refuse to file any document which does not comply with paragraph (c) of this section. Written notice of such refusal, stating the reasons therefore, shall be promptly given to the party submitting the document. Such party may amend and resubmit any document refused for filing, if such amendment and resubmission is timely. If, for good cause shown, amendment and resubmission is not timely, a party may request an extension of the time in which to submit a document to the appropriate official. (d) Confidential Business Information. (2) Any pleading or document containing CBI shall be filed in a double envelope. The outside envelope should not mention that CBI is contained. The inside envelope shall specify the envelope contains CBI. (3) For each original or copy of each pleading or document filed or served which contains CBI, the person shall submit two versions. (i) One version must be complete. In that version, the person shall mark the specific information claimed as CBI pursuant to this section. (ii) The CBI must be deleted in the second version, and all information claimed as CBI must be indicated in such version, as well as the nature of the information claimed as CBI, and the fact that another version containing the CBI has been filed pursuant to this section. (4) The Hearing Clerk shall not accept for filing any CBI pleading or document which does not comply with the requirements of paragraphs (d)(2) and (3) of this section. (5) All claims of CBI, and all information entitled to treatment as CBI, shall be governed by the provisions of 40 CFR part 2, subpart B, for CERCLA, as well as any other EPA regulatory provisions affecting the confidentiality of the information. [58 FR 7706, Feb. 8, 1993, as amended at 59 FR 26, Jan. 3, 1994] § 305.6 Computation and extension of time. (a) Computation. (b) Extension of time. (c) Service by mail. § 305.7 Ex parte At no time after the Request for a Hearing is referred to the Presiding Officer shall the Presiding Officer discuss ex parte ex parte § 305.8 Examination of documents filed. (a) Inspection of Documents. (b) Costs. Subpart B—Parties and Appearances § 305.10 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. § 305.11 Consolidation and severance. (a) Consolidation. sua sponte, (1) There exist common parties or common questions of fact or law; (2) Consolidation would expedite and simplify consideration of the issues; and (3) Consolidation would not adversely affect the rights of parties engaged in otherwise separate proceedings. (b) Severance. sua sponte, Subpart C—Prehearing Procedures § 305.20 Request for a hearing; contents. (a) Within 30 days after receiving notice that the Claims Official has declined to pay all or part of a claim, the claimant may file a Request for a Hearing with the Review Officer. The Request for a Hearing shall contain: (1) A statement of the authority for the Request for a Hearing; (2) A concise statement of the reasons that the Requestor disputes the Claims Official's denial of all or part of the claim; (3) A request for an administrative hearing concerning the Claims Official's total or partial denial of his claim pursuant to this part; and (4) A statement of amount that the Requestor demands to be awarded from the Fund. (b) The Requestor must file with the Request for a Hearing two copies of: (1) The Preauthorization Decision Document for the response work that is the subject of the claim; (2) The claim filed with EPA pursuant to CERCLA section 111(a)(2) or 122(b)(1); and (3) The written notice from the Claims Official denying all or part of the claim. § 305.21 Amendment of request for a hearing; withdrawal. (a) Amendment of Request for a Hearing. (b) Withdrawal of Request for a Hearing. § 305.22 Answer to the request for a hearing. (a) General. (b) Contents of the answer. (1) The circumstances or arguments which are alleged to constitute the grounds of defense; and (2) The facts which the Claims Official intends to place at issue. (c) Failure to admit, deny, or explain. (d) Amendment of the answer. § 305.23 Motions. (a) General. (b) Response to motions. (c) Decision. § 305.24 Default order. (a) Default. sua sponte, sua sponte, (b) Procedures upon default. (c) Contents of a default order. (d) Setting aside a default order. § 305.25 Informal settlement; voluntary agreement. (a) Settlement policy. (b) Voluntary agreement. § 305.26 Prehearing conference. (a) Purpose of prehearing conference. (1) The settlement of the case; (2) The simplification of issues and stipulation of facts not in dispute; (3) The necessity or desirability of amendments to the 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) Setting a time and place for the hearing; and (7) Any other matters which may expedite the disposition of the proceeding. (b) Exchange of witness lists and documents. (c) Record of the prehearing conference. sua sponte. (d) Location of the prehearing conference. (e) Unavailability of a prehearing conference. sua sponte, (f) Other discovery. (2) The parties may conduct any mutually agreed upon discovery without participation or determination of the Presiding Officer except that such voluntary discovery may be subject to such time limitations as the Presiding Officer deems appropriate. (3) Except as provided by paragraphs (b) and (f)(2) of this section, further discovery, under this section, shall be permitted only pursuant to order of the Presiding Officer. Any party to the proceeding desiring an order of discovery shall make a motion therefore. Such motion shall set forth: (i) The circumstances warranting the discovery; (ii) The nature of the information expected to be discovered; and (iii) The method of discovery sought, including, where relevant, the proposed time and place where the discovery will be conducted. (4) The Presiding Officer shall issue an order for discovery only upon a showing of good cause and upon a determination: (i) That such discovery will not in any way unreasonably delay the proceeding; (ii) That the information to be obtained is not otherwise obtainable; and (iii) That such information has significant probative value. If the Presiding Officer determines that the motion should be granted, he shall issue an order for such discovery together with the conditions and terms thereof. (5) The Presiding Officer shall order depositions upon oral questions only upon a 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. (6) When the information sought to be obtained is within the control of one of the parties, failure to comply with an order issued pursuant to this paragraph may lead to: (i) The inference that the information to be discovered would be adverse to the party from whom the information was sought; or (ii) The issuance of a default order under § 305.24(a). (g) Interpreters. sua sponte. § 305.27 Accelerated order, order to dismiss. (a) General. sua sponte, (b) Effect. (2) If an accelerated order or an order to dismiss is rendered on less than all issues in the proceeding, the Presiding Officer shall determine what material facts exist without substantial controversy and what material facts remain controverted in good faith. He shall thereupon issue an interlocutory order specifying the facts which appear substantially uncontroverted, and the issues upon which the hearing will proceed. Subpart D—Hearing Procedure § 305.30 Scheduling the hearing. (a) Filing of answer. (b) Notice of hearing. (c) Postponement of hearing. (d) Location of the hearing. § 305.31 Evidence. (a) General. in camera, (b) Examination of witnesses. (c) Verified statements. (d) Admission of affidavits and other statements where the witness is unavailable. (e) Exhibits. (f) Official notice. § 305.32 Objections and offers of proof. (a) Objection. (b) Offer of proof. § 305.33 Burden of presentation; burden of persuasion. The Requestor has the burden of going forward with his case and of proving that the amount demanded in the Request for a Hearing is justified. Accordingly, the Requestor bears the burdens of presentation and persuasion. Following the establishment of a prima facie case, the Claims Official shall have the burden of presenting and of going forward with any defense to the allegations set forth in the Request for a Hearing. Each matter of controversy shall be determined by the Presiding Officer upon a preponderance of the evidence. § 305.34 Filing the transcript. The hearing shall be transcribed verbatim. Promptly following the taking of the last evidence, the reporter shall transmit to the 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 Hearing Clerk shall notify all the parties of the availability of the transcript and shall furnish the Requestor with a copy of the transcript upon payment of the cost of reproduction, unless a Requestor 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 correct the transcript in accordance with the provision of § 305.23. § 305.35 Proposed findings, conclusions, and order. Within 20 days after the parties are notified of the availability of the transcript, 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 may be submitted. The Presiding Officer may by order extend the time or change the schedule of such submissions or allow further submissions as may be appropriate. All submissions shall be in writing, shall be served upon all parties, and shall contain references to the record for all proposed findings of fact and appropriate citations for authorities relied upon. § 305.36 Final order; costs. (a) Filing and content. (b) Costs.