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tural Marketing Act (12 U.S.C. 114j(a) vail does not demonstrate that the with not more than 500 employees; agency's position was not substantially and

justified. (5) Any other partnership, corpora. (b) An award shall be reduced or tion, association, or public or private denied if the applicant has unduly or organization with a net worth of not

unreasonably protracted the proceedmore than $5 million and not more

ing. than 500 employees.

(c) For the purpose of eligibility, the 8 17.07 Allowable fees and other expenses. net worth and number of employees of an applicant shall be determined as of

(a) The following fees and other exthe date the adversary adjudication

penses are allowable under the Act: was initiated.

(1) Reasonable expenses of expert (d) An applicant who owns an unin- witnesses; corporated business will be considered (2) The reasonable cost of any study, as an "individual” rather than a “sole analysis, engineering report, test, or owner of an unincorporated business" project which EPA finds necessary for if the issues on which the applicant the preparation of the party's case; prevails are related primarily to per- (3) Reasonable attorney or agent sonal interests rather than to business interest.

(b) The amount of fees awarded will (e) The employees of an applicant

be based upon the prevailing market include all persons who regularly per

rates for the kind and quality of seryform services for remuneration for the

ices furnished, except that: applicant under the applicant's direc

(1) Compensation for an expert wittion and control. Part-time employees shall be included.

ness will not exceed $24.09 per hour; (f) The net worth and number of

and employees of the applicant and all of (2) Attorney or agent fees will not be its affiliates shall be aggregated to de- in excess of $75 per hour. termine eligibility. An individual or (c) In determining the reasonablegroup of individuals, corporation, or ness of the fee sought, the Presiding other entity that directly or indirectly Officer shall consider the following: controls or owns a majority of the (1) The prevailing rate for similar voting shares of another business's services in the community in which board of directors, trustees, or other the attorney, agent, or witness ordipersons exercising similar functions, narily performs services; shall be considered an affiliate of that (2) The time actually spent in the business for purposes of this part. In

representation of the applicant; addition, the Presiding Officer may

(3) The difficulty or complexity of determine that financial relationships

the issues raised by the application; of the applicant other than those de

(4) Any necessary and reasonable exscribed in this paragraph constitute

penses incurred; special circumstances that would make an award unjust.

(5) Such other factors as may bear (g) An applicant is not eligible if it on the value of the services performed. has participated in the proceeding on behalf of other persons or entities

§ 17.08 Delegation of authority. that are ineligible.

The Administrator delegates to his

Judicial Officer authority to take final 8 17.06 Standards for awards.

action relating to the Equal Access to (a) A prevailing applicant may re- Justice Act. Nothing in this delegation ceive an award for fees and expenses shall preclude the Judicial Officer incurred in connection with a proceed from referring any matter related to ing unless the position of the EPA as a the Equal Access to Justice Act to the party to the proceeding was substan Administrator when the Judicial Offitially justified or unless special cir

cer determines the referral to be apcumstances make the award sought

propriate. unjust. The fact that EPA did not pre

Subpart B-Information Required

From Applicants

(f) The application shall be signed by the applicant with respect to the eligibility of the applicant and by the attorney of the applicant with respect to fees and expenses sought. The application shall contain or be accompanied by a written verification under oath or affirmation or under penalty of perjury that the information provided in the application and all accompanying material is true and complete to the best of the signer's information and belief.

8 17.11 Contents of application.

(a) An application for award of fees and expenses under the Act shall identify the applicant and the proceeding for which an award is sought. The application shall show that the applicant has prevailed and identify the position of EPA in the proceeding that the applicant alleges was not substantially justified.

(b) The application shall include a statement that the applicant's net worth as of the time the proceeding was initiated did not exceed $1 million if the applicant is an individual (other than a sole owner of an unincorporated business seeking an award in that capacity) or $5 million in the case of all other applicants. An applicant may omit this statement if:

(1) It attaches a copy of a ruling by the Internal Revenue Service that it qualifies as an organization described in section 501(c)(3) of the Internal Revenue Code of 1954 (26 U.S.C. 501(c)(3)) and is exempt from taxation under section 501(a) of the Code or, in the case of such an organization not required to obtain a ruling from the Internal Revenue Service on its exempt status, a statement that describes the basis for the applicant's belief that it qualifies under section 501(c)(3) of the Code; or

(2) It states that it is a cooperative association as defined in section 15(a) of the Agricultural Marketing Act (12 U.S.C. 114j(a)).

(c) If the applicant is a partnership, corporation, association, or organization, or a sole owner of an unincorporated business, the application shall state that the applicant did not have more than 500 employees at the time the proceeding was initiated, giving the number of its employees and describing briefly the type and purpose of its organization or business.

(d) The application shall itemize the amount of fees and expenses sought.

(e) The application may include any other matters that the applicant believes should be considered in determining whether and in what amount an award should be made.

8 17.12 Net worth exhibit.

(a) Each applicant except a qualified tax exempt organization or a qualified cooperative must submit with its application a detailed exhibit showing its net worth at the time the proceeding was initiated. If any individual, corporation, or other entity directly or indi. rectly controls or owns a majority of the voting shares or other interest of the applicant, or if the applicant directly or indirectly owns or controls a majority of the voting shares or other interest of any corporation or other entity, the exhibit must include a showing of the net worth of all such affiliates or of the applicant including the affiliates. The exhibit may be in any form that provides full disclosure of assets and liabilities of the applicant and any affiliates and is sufficient to determine whether the applicant qualifies under the standards of 5 U.S.C. 504(b)(1)(B)(i). The Presiding Officer may require an applicant to file additional information to determine the applicant's eligibility for an award.

(b) The net worth exhibit shall describe any transfers of assets from, or obligations incurred by, the applicant or any affiliate occurring in the oneyear period prior to the date on which the proceeding was initiated that reduced the net worth of the applicant and its affiliates below the applicable net worth ceiling. If there were no such transactions, the applicant shall so state,

(c) The net worth exhibit shall be included in the public record of the proceeding.

8 17.13 Documentation of fees and ex. (b) Final disposition means the penses.

latter of (1) the date on which the (a) The application shall be accom- agency decision becomes final, either panied by full documentation of fees through disposition by the Adminisand expenses, including the cost of

trator or Judicial Officer of a pending any study, engineering report, test, or

appeal or through an initial decision project, for which an award is sought. becoming final due to lack of an (b) The documentation shall include

appeal or (2) the date of final resoluan affidavit from any attorney, agent, tion of the proceeding, such as settleor expert witness representing or ap ment or voluntary dismissal, which is pearing in behalf of the party stating not subject to a petition for rehearing the actual time expended and the rate or reconsideration. at which fees and other expenses were (c) If judicial review is sought or computed and describing the specific taken of the final agency disposition services performed.

of the underlying controversy, then (1) The affidavit shall itemize in

agency proceedings for the award of

agency proceedi detail the services performed by the fees will be stayed pending completion date, number of hours per date, and of judicial review. If, upon completion the services performed during those

of review, the court decides what fees hours. In order to establish the hourly

to award, if any, then EPA shall have rate, the affidavit shall state the

no authority to award fees. hourly rate which is billed and paid by the majority of clients during the rele

Subpart C—Procedures for vant time periods. (2) If no hourly rate is paid by the

Considering Applications majority of clients because, for instance, the attorney or agent repre- 8 17.21 Filing and service of documents. sents most clients on a contingency An application for an award and any basis, the attorney or agent shall pro

other pleading or document related to vide affidavits from two attorneys or the application shall be filed and agents with similar experience who

served on all parties to the proceeding perform similar work, stating the

in the same manner as other pleadings hourly rate which they bill and are

in the proceeding. paid by the majority of their clients during a comparable time period.

8 17.22 Answer to application. (c) The documentation shall also include a description of any expenses for

(a) Within 30 calendar days after which reimbursement is sought and a service of the application, EPA counsel statement of the amounts paid and shall file an answer. payable by the applicant or by any (b) If EPA counsel and the applicant other person or entity for the services believe that they can reach a settleprovided.

ment concerning the award, EPA (d) The Presiding Officer may re- counsel may file a statement of intent quire the applicant to provide vouch to negotiate. The filing of such a stateers, receipts, or other substantiation ment shall extend the time for filing for any expenses claimed.

an answer an additional 30 days.

(c) The answer shall explain in 8 17.14 Time for submission of applica

detail any objections to the award retion.

quested and identify the facts relied (a) An application must be filed no on to support the objection. If the later than 30 days after final disposi- answer is based on any alleged facts tion of the proceeding. If agency not already reflected in the record of review or reconsideration is sought or the proceeding. EPA counsel shall intaken of a decision in which an appli

clude with the answer either a supcant believes it has prevailed, proceed

porting affidavit or affidavits or reings for the award of fees shall be

quest for further proceedings under stayed pending final agency disposi

§ 17.25. tion of the underlying controversy.

§ 17.23 Comments by other parties.

er the special circumstances make an Any party to a proceeding other

award unjust; (e) whether the applithan the applicant and EPA counsel

cant during the course of the proceedmay file comments on an application

ings engaged in conduct that unduly within 30 calendar days after it is

and unreasonably protracted the final served or on an answer within 15 cal

resolution of the matter in controverendar days after it is served.

sy; and (f) the amounts, if any, award

ed for fees and other expenses, ex$ 17.24 Settlement.

plaining any difference between the A prevailing party and EPA counsel amount requested and the amount may agree on a proposed settlement of

awarded. an award before final action on the application, either in connection with a

§ 17.27 Agency review. settlement of the underlying proceed The recommended decision of the ing or after the underlying proceeding Presiding Officer will be reviewed by has been concluded. If the party and EPA in accordance with EPA's proceEPA counsel agree on a proposed set dures for the type of substantive protlement of an award before an applica- ceeding involved. tion has been filed, the application shall be filed with the proposed settle 8 17.28 Judicial review. ment.

Judicial review of final EPA deci

sions on awards may be sought as pro8 17.25 Extensions of time and further

vided in 5 U.S.C. 504(c)(2). proceedings. (a) The Presiding Officer may, on 8 17.29 Payment of award. motion and for good cause shown,

An applicant seeking payment of an grant extensions of time, other than

award shall submit a copy of the final for filing an application for fees and

decision granting the award to the expenses, after final disposition in the

Office of Financial Management for adversary adjudication.

processing. A statement that review of (b) The determination of an award

the underlying decision is not being will be made on the basis of the writ

sought in the United States courts or ten record of the underlying proceed

that the process for seeking review of ing and the filings required or permit

the award has been completed must ted by the foregoing sections of these rules. However, further proceedings

also be included. may be held when necessary for full and fair resolution of the issues aris

PART 20-CERTIFICATION OF ing from the application; any such

FACILITIES proceeding shall be conducted as promptly as possible. A motion for fur Sec. ther proceedings shall specifically 20.1 Applicability. identify the information sought or the 20.2 Definitions. disputed issues and shall explain why 20.3 General provisions. the further proceedings are necessary

20.4 Notice of intent to certify. to resolve the issues.

20.5 Applications.

20.6 State certification. 8 17.26 Decision on application.

20.7 General policies. The Presiding Officer shall issue a

20.8 Requirements for certification.

20.9 Cost recovery. recommended decision on the applica

20.10 Revocation. tion which shall include proposed written findings and conclusions on such

AUTHORITY: Secs. 301, 704, 80 Stat. 379, 83 of the following as are relevant to the

Stat. 667; 5 U.S.C. 301, 26 U.S.C. 169. decision: (a) The applicant's status as SOURCE: 36 FR 22382, Nov. 25, 1971, unless a prevailing party; (b) the applicant's otherwise noted. qualification as a "party" under 5 U.S.C. 504(b)(1)(B); (c) whether EPA's 820.1 Applicability. position as a party to the proceeding the regulations of this part apply to was substantially justified; (d) wheth- certifications by the Administrator of water or air pollution control facilities for purposes of section 169 of the Internal Revenue Code of 1954, as amended, 26 U.S.C. 169, as to which the amortization period began after December 31, 1975. Certification of air or water pollution control facilities as to which the amortization period began before January 1, 1976, will con

the Administrator to certify facilities under this part.

(f) "Facility" means property comprising any new identifiable treatment facility which removes, alters, disposes of, stores, or prevents the creation of pollutants, contaminants, wastes, or heat.

(g) “State" means the States, the

tal Protection Agency regulations pub-
lished November 25, 1971, at 36 FR
22382. Applicable regulations of the
Department of Treasury are at 26
CFR 1.169 et seq.
[43 FR 1340, Jan. 9, 1978)

wealth of Puerto Rico, the Canal
Zone, Guam, American Samoa, the
Virgin Islands, and the Trust Terri-
tory of the Pacific Islands.
(36 FR 22382, Nov. 25, 1971, as amended at
43 FR 1340, Jan. 9, 1978)


8 20.2 Definitions.

8 20.3 General provisions. As used in this part, the following (a) An applicant shall file an applicaterms shall have the meaning indicat tion in accordance with this part for ed below:

each separate facility for which certi(a) "Act” means, when used in con- fication is sought; Provided, That one nection with water pollution control application shall suffice in the case of facilities, the Federal Water Pollution substantially identical facilities which Control Act, as amended (33 U.S.C. the applicant has installed or plans to 1251 et seq.) or, when used in connec- install in connection with substantialtion with air pollution control facili. ly identical properties; Provided furties, the Clean Air Act, as amended (42 ther, That an application may incorpoU.S.C. 1857 et seq.).

rate by reference material contained (b) “State certifying authority” in an application previously submitted means:

by the applicant under this part and (1) For water pollution control facili- pertaining to substantially identical ties, the State pollution control facilities. agency as defined in section 502 of the (b) The applicant shall, at the time

of application to the State certifying (2) For air pollution control facili authority, submit an application in ties, the air pollution control agency the form prescribed by the Adminisdesignated pursuant to section trator to the Regional Administrator 302(b)(1) of the Act; or

for the region in which the facility is (3) For both air and water pollution located. control facilities, any interstate (c) Applications will be considered agency authorized to act in place of complete and will be processed when the certifying agency of a State.

the Regional Administrator receives (c) “Applicant” means any person the completed State certification. who files an application with the Ad (d) Applications may be filed prior ministrator for certification that a fa- or subsequent to the commencement cility is in compliance with the appli- of construction, acquisition, installacable regulations of Federal agencies tion, or operation of the facility. and in furtherance of the general poli (e) An amendment to an application cies of the United States for coopera- shall be submitted in the same manner tion with the States in the prevention as the original application and shall be and abatement of water or air pollu- considered a part of the original applition under the Act.

cation. (d) “Administrator" means the Ad (f) If the facility is certified by the ministrator, Environmental Protection Regional Administrator, notice of cer

tification will be issued to the Secre(e) "Regional Administrator” means tary of the Treasury or his delegate, the Regional designee appointed by and a copy of the notice shall be for


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