responsibility in the same or other States, information on factors (e.g., construction of new industrial plants) which may significantly affect air quality in any portion of such region or in any adjoining region.

§ 51.22 Rules and regulations.

Emission limitations and other measures necessary for attainment and maintenance of any national standard, including any measures necessary to implement the requirements of § 51.11, shall be adopted as rules and regulations enforceable by the State agency. Copies of all such rules and regulations shall be submitted with the plan. Except as otherwise provided by § 51.11(b), submittal of a plan setting forth proposed rules and regulations will not satisfy the requirements of this section nor will it be considered a timely submittal. Subpart C-Extensions

a

§ 51.30 Request for 2-year extension. (a) The Governor of a State may, at the time of submission of a plan to implement a primary standard in Priority I region, request the Administrator to extend, for a period not exceeding 2 years, the 3-year period prescribed by the Act for attainment of the primary standard in such region.

(b) Any such request regarding an interstate region shall be submitted jointly with the requests of Governors of all States in the region, or shall show that the Governor of each State in the region has been notified of such a request.

(c) Any such request regarding attainment of a primary standard shall be submitted together with a plan which shall:

(1) Set forth a control strategy adequate for attainment of such primary standard.

(2) Show that the necessary technology or alternatives will not be available soon enough to permit full implementation of such control strategy within such 3-year period, i.e., one or more emission sources or classes of sources will be unable to comply with applicable portions of the control strategy.

(3) Provide for attainment of such primary standard as expeditiously as practicable, but in no case later than 5 years after the date of the Administrator's approval of such plan.

(d) Any showing pursuant to paragraph (c) of this section shall include:

(1) A clear identification of stationary emission sources or classes of moving sources which will be unable to comply with the applicable portions of such control strategy within a 3-year period because the necessary technology or alternatives will not be available soon enough to permit such compliance.

(2) A clear identification and justification of any assumptions made with the respect to the time at which the necessary technology or alternatives will be available.

(3) A clear identification of any alternative means of attainment of such primary standard which were considered and rejected.

(4) A showing that stationary emission sources or classes of moving sources other than those identified pursuant to subparagraph (1) of this paragraph will be required to comply, within such 3year period, with any applicable portions of such control strategy.

(5) A showing that reasonable interim control measures are provided for in such plan with respect to emissions from the source(s) identified pursuant to subparagraph (1) of this paragraph.

§ 51.31 Request for 18-month extension.

(a) Upon request of the State made in accordance with this section, the Administrator may, whenever he determines necessary, extend, for a period not to exceed 18 months, the deadline for submitting that portion of a plan that implements a secondary standard.

(b) Any such request will be given consideration only in the case of Priority I and Priority II regions.

(c) Any such request shall show that attainment of the secondary standards will require emission reductions exceeding those which can be achieved through the application of reasonably available control technology.

(d) Any such request for extension of the deadline with respect to any State's portion of an interstate region shall be submitted jointly with requests for such extensions from all other States within the region or shall show that all such States have been notified of such request.

(e) Any such request shall be submitted suficiently early to permit development of a plan prior to the deadline in the event that such request is denied.

§ 51.32 Request for 1-year postpone

ment.

(a) Pursuant to section 110 (f) of the Act,' the Governor of a State may request, with respect to any stationary source or class of moving sources, a postponement for not more than 1 year of the applicability of any portion of the control strategy.

(b) Any such request regarding sources located in an interstate region shall show that the Governor of each State in the region has been notified of such request.

(c) Any such request shall clearly identify the source(s) and portion(s) of the control strategy which are the subject of such request and shall include information relevant to the determinations required by section 110 (f) of the Act.

(d) A public hearing will be held, before the Administrator or his designee, on any such request.

(e) No such request shall operate to stay the applicability of the portion(s) of the control strategy covered by such request.

(f) A State's determination to defer the applicability of any portion(s) of the control strategy with respect to such source(s) will not necessitate a request for postponement under this section unless such deferral will prevent attainment or maintenance of a national standard within the time specified in such plan: Provided, however, That any such determination will be deemed a revision of an applicable plan under § 51.6. [36 FR 22398, Nov. 25, 1971, as amended at 38 FR 15958, June 19, 1973]

§ 51.33 Hearings and appeals relating to request for one year postponement. (a) Definitions. (1) The term "Act" is defined at 40 CFR § 51.1(a).

(2) The term "Administrative Law Judge" means an administrative law judge whose services have been retained by the Environmental Protection Agency pursuant to sections 556(b) (3) and 3105 or 3344 of the Administrative Procedure Act for the duties and functions hereinafter set forth. The Administrator may delegate all or part of his authority to act in a given case under this section to an Administrative Law Judge. There may be included within such delegation authority to issue subpoenas, authority

1 Defined term (Clean Air Act) see definitions.

to make findings of fact and conclusions of law with respect to a given case and authority to recommend a decision (hereinafter referred to as the "initial decision"). Unless otherwise limited by the Administrator, the action of the Administrator or his delegate in assigning an administrative law judge to a given case shall be regarded as a full and complete delegation of authority to render an initial decision. A delegation of authority to render an initial decision shall not preclude the Administrative Law Judge from referring any motion or case to the Administrator when the Administrative Law Judge determines such referral to be appropriate.

(3) The term "Administrator" is defined at 40 CFR § 51.1(b).

(4) The term "Agency," unless otherwise specified, means the United States Environmental Protection Agency.

(5) The term "initial decision" means the decision of the Administrative Law Judge as supported by findings of fact and conclusions regarding all material issues of law, fact, or discretion, as well as reasons therefore. Such decision shall become the final decision of the Agency unless an appeal therefrom is taken or the Administrator orders review thereof as herein provided.

(6) The term "party" means the Agency, the source (or sources) on whose behalf the section 110(b) postponement has been requested and any person (as that term is defined below) who, pursuant to paragraph (c) of this section, has filed a request to participate as a party in a public hearing required by section 110 (f) (2) of the Act and has had such request approved.

(7) The term "persons" means the Governor of a State which is requesting a one year postponement under § 110(f) of the Act, any officials designated by the Governor to appear on behalf of the State, and any other State, foreign country, Federal agency, or other interested person or persons (whether individual or formed as an association, public interest group or corporation).

for all documents relating to hearings under this section.

(10) The term "source" means any stationary source or class of moving sources whose alleged inability to comply with any requirement of an applicable implementation plan has given rise to a request for a postponement under § 110 (f) of the Act.

(b) Notice of adjudicatory hearings. (1) Public notice of every application for a postponement under § 110 (f) of the Act shall be circulated in a manner designed to inform interested and potentially interested persons of the intention of the Agency to hold hearings on the requested postponement.

(2) Procedures for accomplishing such public notice shall include at least the following:

(i) Notice shall be published in the FEDERAL REGISTER. The hearing shall convene at the place and time announced in the notice, unless amended by subsequent notice, but thereafter it may be moved to a different place and may be continued from day to day or recessed to a later day without other notice than announcement thereof at the hearing.

(ii) Where the source for which postponement is being requested is a stationary source, notice shall be circulated within the geographical area of the source. Such circulation shall be accomplished by either of the following methods:

(A) Posting in the main post office and in other public places of the municipality or municipalities closest to the source;

(B) Publication in at least one newspaper of general circulation which regularly reaches the geographical area of the source.

(iii) Notice shall be mailed to the source with respect to which the postponement is being requested.

(3) The contents of any public notice referred to in subparagraph (2) shall include at least the following:

(i) The purpose of the hearing;

(ii) A brief description of the activities or operations of the source with respect to which the postponement is being requested and a concise statement setting forth the grounds on which the request is being made;

(iii) A brief statement of the legal authority under which the hearing is being held;

(iv) Notice shall be mailed to the air pollution control board or agency of the

state in which the source is located provided that, if an air pollution control authority does not exist on the state level, notice shall be sent to that local air pollution control board or agency to whose authority the source is subject.

(v) The address and phone number of the place or places where documents relating to the hearing can be copied or inspected;

(vi) The address and phone number of the regional filing clerk and a statement advising interested persons that requests to be made a party to the hearing are to be mailed to the regional filing clerk within the time frame noted in paragraph (c) of this section;

(vii) A statement advising persons who do not wish to be made a party to the hearing that, at any time prior to the commencement of the hearing they may either submit comments or request to make an oral statement at the hearing. The statement shall indicate that all such comments or requests are to be filed with the regional hearing clerk. The statement shall also indicate that requests to make an oral statement at the hearing will be routinely granted and that such oral presentations shall be open to questioning at the hearing.

(4) Notice shall be mailed to any person upon request.

(c) Parties. (1) Within 30 days following the issuance of public notice in the FEDERAL REGISTER of a requested postponement under § 110 (f) of the Act, any person may request to be made a party to the hearing.

(2) Requests to be made a party shall be in writing and shall be addressed to the office of the regional filing clerk.

(3) Requests to be made a party shall: (i) State the name and address of the person making the request (the requester);

(ii) Identify the interest of the requester;

(iii) Identify any others whom the requester represents;

(iv) State with particularity the position of the requester on the matters to be considered at the hearing.

(4) All requests to be made a party will be reviewed by the Administrative Law Judge within 15 days of receipt. Where the requirements of subparagraph (3) have been met, the Administrative Law Judge shall notify, or shall direct the regional hearing clerk to notify, the requester that his request to be made a party has been approved. If, however,

the Administrative Law Judge determines that the requirements of subparagraph (3) have not been satisfied, he shall, by appropriate notice, advise the requester as to which of the requirements under subparagraph (c) have not been met and that his request to be made a party can not be approved until such requirements are fully met. Such notice shall afford the requester a reasonable period of time (not to exceed 14 days) in which to file an amended request.

(5) Any documents or papers relating to the procedures described in subparagraph (3) shall be made a part of the record and shall be available for inspection at the office of the regional hearing clerk.

(6) Any person who does not wish to be made a party to the hearing but who desires to make an oral statement at the hearing shall be permitted to do so. Such persons shall be designated as nonparty participants. Nonparty participants shall be subject to questioning at the hearing; however, nonparty participants may not question any other nonparty participants nor may they cross-examine any of the witnesses presented by the parties. Apart from the opportunity to testify at the hearing, nonparty participants shall have no further rights or obligations with respect to either the hearing, or to any facet of the decision making process which follows the hearing.

(d) Filing and service. (1) All documents or papers required or authorized to be filed, shall be filed with the regional hearing clerk. Except for a request to be made a party, at the same time that a party files documents or papers with the regional hearing clerk, it shall serve upon all other parties copies thereof, with a certificate of service on each document or paper, including those filed with the regional hearing clerk. Filing shall be deemed timely if received by the regional hearing clerk within the time allowed by this section, or where not provided for by the explicit terms of this section, within the time prescribed by the Administrative Law Judge.

(2) In addition to copies served on all other parties, each party shall file with the regional hearing clerk an original and five copies of all papers filed in connection with the hearing.

(e) Time. (1) In computing any period of time prescribed or allowed by the regulations in this part, except as otherwise provided, the day of the act or event from which the designated period of time begins to run shall not be included. Sat

urdays, Sundays, and holidays, shall be included in computing the time allowed for the filing of any document or paper, except that when such time expires on a Saturday, Sunday, or legal holiday, such period shall be extended to include the next following business day.

(2) Documents and papers which are postmarked prior to the expiration of a given filing date shall be deemed to have been timely filed.

(f) Intervention. (1) Following the expiration of the time prescribed in paragraph (c) of this section for the submission of requests to be made a party, any person may file a motion for leave to intervene in a hearing. A motion must set forth the grounds for the proposed intervention and the position and interest of the movant in the proceeding. A motion for leave to intervene in a hearing must ordinarily be filed prior to the commencement of the first prehearing conference. Any motion filed after that time must contain, in addition to the information set forth in paragraph (c) of this section, a statement of good cause for the failure to file the motion prior to the commencement of the first prehearing conference and shall be granted only upon a finding that (i) extraordinary circumstances justify the granting of the motion, and (ii) the intervenor agrees to be bound by agreements, arrangements and other matters previously made in the proceeding.

(2) Leave to intervene will be freely granted but only insofar as such leave raises matters which are pertinent to and do not unreasonably broaden the issues already presented. If leave is granted, the movant shall thereby become a party with the full status of the original parties to the proceedings. If leave is denied, the movant may request that the ruling be certified to the Administrator, pursuant to paragraph (r) of this section, for a speedy appeal.

(g) Amicus Curiae. (1) Persons not parties to the proceedings wishing to file briefs may do so by leave of the Administrative Law Judge granted on motion. A motion for leave shall identify the interest of the applicant and shall state the reasons why the proposed amicus brief is desirable. Unless all parties otherwise consent, an amicus curiae shall file its brief within the time allowed the party whose position the brief will support. Upon a showing of good cause, the Administrator or Administrative Law Judge may grant permission for later filing.

(h) Consolidation. (1) The Administrative Law Judge, by motion of sua sponte, may consolidate two or more proceedings relating to sources located within a single State whenever it appears that this will expedite or simplify consideration of the issues. Consolidation shall not affect the right of any party to raise issues that could have been raised if consolidation had not occurred. At the conclusion of proceedings consolidated under this paragraph, the Administrative Law Judge shall issue one decision.

(i) Representatives. (1) Parties may appear in person or by counsel or other representative. Persons who appear as counsel or in a representative capacity must conform to the standards of ethical conduct required of practitioners before the courts of the United States.

(j) Qualifications and duties of Administrative Law Judge. (1) Qualifications

The Administrative Law Judge shall have the qualifications required by statute. He shall not decide any matter in connection with a proceeding where he has a financial interest in any of the parties or a relationship with a party that would make it otherwise inappropriate for him to act.

(2) Disqualification of the Administrative Law Judge-Any party may, by motion made to the Administrative Law Judge, as soon as practicable, request that he disqualify himself and withdraw from the proceeding. The Administrative Law Judge shall then rule upon the motion and, upon request of the movant, shall certify an adverse ruling for appeal.

(3) Withdrawal sua sponte-The Administrative Law Judge may at any time withdraw from any proceeding in which he deems himself disqualified for any

reason.

(4) Absence or change of the Administrative Law Judge-In the case of the absence of the Administrative Law Judge, or his inability to act, or his removal by disqualification or withdrawal, the powers and duties to be performed by him under this part in connection with a hearing assigned to him may, without abatement of the proceeding unless otherwise directed by the Administrator, be assigned to another Administrative Law Judge so designated to act by the Administrator.

(5) Duties and authorities-Administrative Law Judges at adjudicatory hearings shall have the duty to conduct fair and impartial hearings, to take all necessary action to avoid delay in the dis

position of proceedings, and to maintaш order. They shall have all powers necessary to that end, including the following: (i) To administer oaths and affirmations;

(ii) To rule upon offers of proof and receive relevant evidence;

(iii) To regulate the course of the hearings and the conduct of the parties and their counsel therein;

(iv) To hold prehearing conferences in accordance with paragraph (k);

(v) To consider and rule upon all procedural and other motions appropriate in such proceedings;

(vi) To encourage and authorize the submission of testimony in written or affidavit form whenever the taking of evidence in such form is agreed to by the parties and will, in the opinion of the Administrative Law Judge, (i) assist in expediting the hearing, (ii) not prejudice the rights of any of the parties and (iii) provide as full and true a disclosure of the facts as would the examination and cross examination of the individuals concerned. The admissibility of the evidence contained in such statement or affidavit shall be subject to the same rules as if such testimony were produced in the usual manner and the affiant or person responsible for the contents of any written evidence shall be subject to oral crossexamination on the contents of such statements.

(vii) To issue subpoenas and take any other action authorized by these regulations or in conformance with law.

(k) Prehearing conference. (1) Except as otherwise provided in subparagraph (3), the Administrative Law Judge shall, prior to the commencement of the hearing and for the purpose of expediting the hearing, file with the regional hearing clerk an order for a prehearing conference. More than one such conference may be held. Such order of orders shall direct the parties or their counsel to appear at a specified time and place to consider:

(i) The identification and simplification of disputed issues of fact and law;

(ii) The possibility of obtaining stipulations of fact and documents which will avoid unnecessary delay;

(iii) Matters of which official notice may be taken;

(iv) The limitation of the number of expert and other witnesses;

(v) Procedure at the hearing;

(vi) The use of written statements or affidavits in lieu of oral direct testimony; (vii) The need for discovery;