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(b) Judicial Officer and Regional Ju- requests, and issue all necessary dicial Officer-(1) Office. One or more orders; Judicial Officers may be designated by (3) Administer oaths and affirmathe Administrator to perform the tions and take affidavits; functions described below. One or (4) Examine witnesses and receive more Regional Judicial Officers may documentary or other evidence; be designated by the Regional Admin (5) For good cause, upon motion or istrator to perform, within the region sua sponte, order a party, or an officer of their designation, the functions de or agent thereof, to produce testimoscribed below.
ny, documents, or other nonprivileged (2) Qualifications. A Judicial Officer evidence, and failing the production or a Regional Judicial Officer shall be thereof without good cause being an attorney who is a permanent or
shown, draw adverse inferences temporary employee of the Agency or against that party; some other Federal agency and who
(6) Admit or exclude evidence; may perform other duties within the
(7) Hear and decide questions of Agency. A Regional Judicial Officer
facts, law, or discretion; shall not be employed by the Region's
(8) Require parties to attend conferEnforcement Division or by the Re
ences for the settlement or simplificagional Division directly associated
tion of the issues, or the expedition of with the type of violation at issue in
the proceedings; the proceeding. A Judicial Officer
(9) Issue subpoenas authorized by shall not be employed by the Office of
the Act; and Enforcement or by any program office
(10) Do all other acts and take all directly associated with the type of
measures necessary for the mainteviolation at issue in the proceeding.
nance of order and for the efficient, Neither the Judicial Officer nor the
fair and impartial adjudication of Regional Judicial Officer shall have
issues arising in proceedings governed performed prosecutorial or investiga
by these rules. tive functions in connection with any
(d) Disqualification; withdrawal. (1) hearing in which he serves as Judicial
The Administrator, Regional AdminisOfficer or any factually related hear
trator, Judicial Officer, Regional Judiing.
cial Officer or Presiding Officer may (3) Functions. The Administrator
not perform functions provided for in
these rules of practice regarding any may delegate to the Judicial Officer,
matter in which they (i) have a finanor the Regional Administrator may
cial interest or (ii) have any relationdelegate to the Regional Judicial Offi
ship with a party or with the subject cer, all or part of his authority to act
matter which would make it inapproin a given proceeding. This delegation
priate for them to act. Any party may does not prevent the Judicial Officer
at any time by motion made to the Reor Regional Judicial Officer from re
gional Administrator request that the ferring any motion or case to the Ad
Regional Judicial Officer be disqualiministrator or Regional Administrator
fied from the proceeding. Any party when appropriate. The Judicial Offi
may at any time by motion to the Adcer and Regional Judicial Officer shall
ministrator request that the Regional exercise all powers and duties pre
Administrator, Judicial Officer, or scribed or delegated under the Act or Presiding Officer be disqualified or rethese rules of practice.
quest that the Administrator disquali(c) Presiding Officer. The Presiding fy himself from the proceeding. The Officer shall conduct a fair and impar Administrator, Regional Administratial proceeding, assure that the facts tor. Judicial Officer, Regional Judicial are fully elicited, adjudicate all issues, Officer or Presiding Officer may at and avoid delay. The Presiding Officer any time withdraw from any proceedshall have authority to:
ing in which they deem themselves (1) Conduct administrative hearings disqualified or unable to act for any under these rules of practice;
reason. (2) Rule upon motions, requests, and (2) If the Administrator, Regional Iers of proof, dispose of procedural Administrator, Regional Judicial Officer, Judicial Officer, or Presiding Offi (3) When the Presiding Officer corcer is disqualified or withdraws from responds directly with the parties, the the proceeding, a qualified individual original of the correspondence shall be who has none of the infirmities listed sent to the Regional Hearing Clerk, a in paragraph (d)(1) of this section copy shall be maintained by the Preshall be assigned to replace him. As- siding Officer in the duplicate file, and signment of a replacement for the Re- a copy shall be sent to all parties. Par. gional Administrator or Judicial Offi ties who correspond directly with the cer, or for the Regional Judicial Offi- Presiding Officer shall in addition to cer shall be made by the Administra- serving all other parties send a copy of tor or the Regional Administrator, re all such correspondence to the Regionspectively. The Administrator, should al Hearing Clerk. A certificate of servhe withdraw or disqualify himself, ice shall accompany each document shall assign the Regional Administra- served under this subsection. tor from the region where the case (b) Service of pleadings and docuoriginated to replace him. If that Re- ments-(1) Service of complaint. (i) gional Administrator would himself be Service of a copy of the signed original disqualified, the Administrator shall of the complaint, together with a copy assign a Regional Administrator from of these rules of practice, may be another region to replace the Adminis made personally or by certified mail, trator. The Regional Administrator return receipt requested, on the reshall assign a new Presiding Officer if spondent (or his representative). the original Presiding Officer was not (ii) Service upon a domestic or foran Administrative Law Judge. The eign corporation or upon a partnerChief Administrative Law Judge shall ship or other unincorporated associassign a new Presiding Officer from ation which is subject to suit under a among available Administrative Law common name shall be made by perJudges if the original Presiding Offi- sonal service or certified mail, as precer was an Administrative Law Judge. scribed by paragraph (b)(1)(i) of this
(3) The Chief Administrative Law section, directed to an officer, partner, Judge, at any stage in the proceeding, a managing or general agent, or to any may reassign the case to an Adminis- other person authorized by appointtrative Law Judge other than the one ment or by Federal or State law to reoriginally assigned in the event of the ceive service of process. unavailability of the Administrative (iii) Service upon an officer or Law Judge or where reassignment will agency of the United States shall be result in efficiency in the scheduling made by delivering a copy of the comof hearings and would not prejudice plaint to the officer or agency, or in the parties.
any manner prescribed for service by
applicable regulations. If the agency is 8 22.05 Filing, service, and form of plead
a corporation, the complaint shall be ings and documents.
served as prescribed in paragraph (a) Filing of pleadings and docu (b)(1)(ii) of this section. ments. (1) Except as otherwise pro- (iv) Service upon a State or local vided, the original and one copy of the unit of government, or a State or local complaint, and the original of the officer, agency, department, corporaanswer and of all other documents tion or other instrumentality shall be served in the proceeding shall be filed made by serving a copy of the comwith the Regional Hearing Clerk.
plaint in the manner prescribed by the (2) A certificate of service shall ac- law of the State for the service of company each document filed or process on any such persons, or: served. Except as otherwise provided, (A) If upon a State or local unit of a party filing documents with the Re government, or a State or local departgional Hearing Clerk, after the filing ment, agency, corporation or other inof the answer, shall serve copies there strumentality, by delivering a copy of of upon all other parties and the Pre the complaint to the chief executive siding Officer. The Presiding Officer officer thereof; shall maintain a duplicate file during (B) If upon a State or local officer the course of the proceeding.
by delivering a copy to such officer.
(v) Proof of service of the complaint $ 22.06 Filing and service of rulings, shall be made by affidavit of the orders, and decisions. person making personal service, or by
All rulings, orders, decisions, and properly executed return receipt. Such
other documents issued by the Regionproof of service shall be filed with the
al Administrator, Regional Judicial complaint immediately upon comple
Officer, or Presiding Officer, as approtion of service.
priate, shall be filed with the Regional (2) Service of documents other than
Hearing Clerk. All such documents complaint, rulings, orders, and deci
issued by the Administrator or Judisions. All documents other than the
cial Officer shall be filed with the complaint, rulings, orders, and deci
Hearing Clerk. Copies of such rulings, sions, may be served personally or by certified or first class mail.
orders, decisions, or other documents
shall be served personally, or by certi(c) Form of pleadings and docu
fied mail, return receipt requested, ments. (1) Except as provided herein,
upon all parties by the Administrator, or by order of the Presiding Officer or
Regional Administrator, Judicial OffiAdministrator, there are no specific re
cer, Regional Judicial Officer, or Prequirements as to the form of docu
siding Officer, as appropriate. ments. (2) The first page of every pleading,
$ 22.07 Computation and extension of letter, or other document shall contain
time. a caption identifying the respondent and the docket number which is exhib
(a) Computation. In computing any ited on the complaint.
period of time prescribed or allowed in (3) The original of any pleading, these rules of practice, except as othletter or other document (other than erwise provided, the day of the event exhibits) shall be signed by the party
from which the designated period filing or by his counsel or other repre begins to run shall not be included. sentative. The signature constitutes a Saturdays, Sundays, and Federal legal representation by the signer that he holidays shall be included. When a has read the pleading, letter or other stated time expires on a Saturday, document, that to the best of his Sunday or legal holiday, the stated knowledge, information and belief, the time period shall be extended to instatements made therein are true, and clude the next business day. that it is not interposed for delay.
(b) Extensions of time. The Adminis(4) The initial document filed by any trator, Regional Administrator, or Preperson shall contain his name, address siding Officer, as appropriate, may and telephone number. Any changes grant an extension of time for the in this information shall be communi filing of any pleading, document, or cated promptly to the Regional Hear motion (1) upon timely motion of a ing Clerk, Presiding Officer, and all party to the proceeding, for good parties to the proceeding. A party who cause shown, and after consideration fails to furnish such information and of prejudice to other parties, or (2) any changes thereto shall be deemed upon his own motion. Such a motion to have waived his right to notice and by a party may only be made a service under these rules.
notice to all other parties, unless the (5) The Administrator, Regional Ad movant can show good cause why servministrator, Presiding Officer, or Re- ing notice is impracticable. The gional Hearing Clerk may refuse to motion shall be filed in advance of the file any document which does not date on which the pleading, document comply with this paragraph. Written or motion is due to be filed, unless the notice of such refusal, stating the rea failure of a party to make timely sons therefor, shall be promptly given motion for extension of time was the to the person submitting the docu- result of excusable neglect. ment. Such person may amend and re- (c) Service by mail. Service of the submit any document refused for complaint is complete when the return filling upon motion granted by the Ad receipt is signed. Service of all other ministrator, Regional Administrator, pleadings and documents is complete or Presiding Officer, as appropriate. upon mailing. Where a pleading or
document is served by mail, five (5) days shall be added to the time allowed by these rules for the filing of a responsive pleading or document.
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.
8 22.08 Ex parte discussion of proceeding.
At no time after the issuance of the complaint shall the Administrator, Regional Administrator, Judicial Officer, Regional Judicial Officer, Presiding Officer, or any other person who is likely to advise these officials in the decision on the case, discuss ex parte the merits of the proceeding with any interested person outside the Agency, with any Agency staff member who performs a prosecutorial or investigative function in such proceeding or a factually related proceeding, or with any representative of such person. Any ex parte memorandum or other communication addressed to the Administrator, Regional Administrator, Judicial Officer, Regional Judicial Of. ficer, or the Presiding Officer during the pendency of the proceeding and relating to the merits thereof, by or on behalf of any party shall be regarded
and shall be served upon all other parties. The other parties shall be given an opportunity to reply to such memorandum or communication.
8 22.11 Intervention.
(a) Motion. A motion for leave to intervene in any proceeding conducted under these rules of practice must set forth the grounds for the proposed intervention, the position and interest of the movant and the likely impact that intervention will have on the expeditious progress of the proceeding. Any person already a party to the proceeding may file an answer to a motion to intervene, making specific reference to the factors set forth in the foregoing sentence and paragraph (c) of this section, within ten (10) days after service of the motion for leave to intervene.
(b) When filed. A motion for leave to intervene in a proceeding must ordinarily be filed before the first prehearing conference or, in the absence of a prehearing conference, before the initiation of correspondence under $ 22.19(e), or if there is no such correspondence, prior to the setting of a time and place for a hearing. Any motion filed after that time must include, in addition to the information set forth in paragraph (a) of this section, a statement of good cause for the failure to file in a timely manner. The intervenor shall be bound by any agreements, arrangements and other matters previously made in the proceeding.
(c) Disposition. Leave to intervene may be granted only if the movant demonstrates that (1) his presence in the proceeding would not unduly prolong or otherwise prejudice the adjudication of the rights of the original parties; (2) the movant will be adversely affected by a final order; and (3) the interests of the movant are not being adequately represented by the original parties. The intervenor shall become a full party to the proceeding upon the granting of leave to intervene.
(d) Amicus curiae. Persons not parties to the proceeding who wish to file briefs may so move. The motion shall identify the interest of the applicant and shall state the reasons why the
8 22.09 Examination of documents filed.
(a) Subject to the provisions of law restricting the public disclosure of confidential information, any person may, during Agency business hours, inspect and copy any document filed in any proceeding. Such documents shall be made available by the Regional Hearing Clerk or Hearing Clerk, as appropriate.
(b) The cost of duplicating documents filed in any proceeding shall be borne by the person seeking copies of such documents. The Agency may waive this cost in appropriate cases.
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
proposed amicus brief is desirable. If the motion is granted, the Presiding Officer or Administrator shall issue an order setting the time for filing such brief. An amicus curiae is eligible to participate in any briefing after his motion is granted, and shall be served with all briefs, reply briefs, motions, and orders relating to issues to be briefed.
$ 22.12 Consolidation and severance.
(a) Consolidation. The Presiding Of. ficer may, by motion or sua sponte, consolidate any or all matters at issue in two or more proceedings docketed under these rules of practice where (1) there exists common parties or common quest: ons 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.
) Severance. The Presiding Officer may, by motion or sua sponte, for good cause shown order any proceedings severed with respect to any or all parties or issues.
$ 22.14 Content and amendment of the
complaint. (a) Complaint for the assessment of a civil penalty. Each complaint for the assessment of a civil penalty shall include:
(1) A statement reciting the section(s) of the Act authorizing the issuance of the complaint;
(2) Specific reference to each provision of the Act and implementing regulations which respondent is alleged to have violated;
(3) A concise statement of the factual basis for alleging the violation;
(4) The amount of the civil penalty which is proposed to be assessed;
(5) A statement explaining the reasoning behind the proposed penalty;
(6) Notice of respondent's right to request a hearing on any material fact contained in the complaint, or on the appropriateness of the amount of the proposed penalty. A copy of these rules of practice shall accompany each complaint served.
(b) Complaint for the revocation or suspension of a permit. Each complaint for the revocation or suspension of a permit shall include:
(1) A statement reciting the section(s) of the Act, regulations, and/ or permit authorizing the issuance of the complaint;
(2) Specific reference to each term or condition of the permit which the respondent is alleged to have violated, to each alleged inaccuracy or misrepresentation in respondent's permit application, to each fact which the respondent allegedly failed to disclose in his permit application, or to other reasons which form the basis for the complaint;
(3) A concise statement of the factual basis for such allegations;
(4) A request for an order to either revoke or suspend the permit and a statement of the terms and conditions of any proposed partial suspension or revocation;
(5) A statement indicating the basis for recommending the revocation, rather than the suspension, of the permit, or vice versa, as the case may be;
(6) Notice of the respondent's right to request a hearing on any material
Subpart C—Prehearing Procedures
8 22.13 Issuance of complaint.
If the complainant has reason to believe that a person has violated any provision of the Act, or regulations promulgated or a permit issued under the Act, he may institute a proceeding for the assessment of a civil penalty by issuing a complaint under the Act and these rules of practice. If the complainant has reason to believe that
(a) A permittee violated any term or condition of the permit, or
(b) A permittee misrepresented or inaccurately described any material fact in the permit application or failed to disclose all relevant facts in the permit application, or
(c) Other good cause exists for such action, he may institute a proceeding for the revocation or suspension of a permit by issuing a complaint under the Act and these rules of practice. A complaint may be for the suspension or revocation of a permit in addition to the assessment of a civil penalty.