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8 22.25 Filing the transcript.
fact, conclusions regarding all material The hearing shall be transcribed ver
issues of law or discretion, as well as batim. Promptly following the taking
reasons therefor, a recommended civil of the last evidence, the reporter shall
penalty assessment, if appropriate, transmit to the Regional Hearing
and a proposed final order. Upon reClerk the original and as many copies
ceipt of an initial decision, the Regionof the transcript of testimony as are
al Hearing Clerk shall forward a copy called for in the reporter's contract
to all parties, and shall send the origiwith the Agency, and also shall trans nal, along with the record of the promit to the Presiding Officer a copy of ceeding, to the Hearing Clerk. The the transcript. A certificate of service Hearing Clerk shall forward a copy of shall accompany each copy of the the initial decision to the Administratranscript. The Regional Hearing tor. Clerk shall notify all parties of the (b) Amount of civil penalty. If the availability of the transcript and shall Presiding Officer determines that a furnish the parties with a copy of the violation has occurred, the Presiding transcript upon payment of the cost of Officer shall determine the dollar reproduction, unless a party can show amount of the recommended civil penthat the cost is unduly burdensome. alty to be assessed in the initial deci. Any person not a party to the proceed- sion in accordance with any criteria ing may receive a copy of the tran set forth in the Act relating to the script upon payment of the reproduc proper amount of a civil penalty, and tion fee, except for those parts of the must consider any civil penalty guidetranscript order to be kept confiden- lines issued under the Act. If the Pretial by the Presiding Officer.
siding Officer decides to assess a pen
alty different in amount from the pen8 22.26 Proposed findings, conclusions, alty recommended to be assessed in and order.
the complaint, the Presiding Officer Within twenty (20) days after the shall set forth in the initial decision parties are notified of the availability the specific reasons for the increase or of the transcript, or within such decrease. The Presiding Officer shall longer time as may be fixed by the not raise a penalty from that recomPresiding Officer, any party may mended to be assessed in the comsubmit for the consideration of the plaint if the respondent has defaulted. Presiding Officer, proposed findings of (c) Effect of initial decision. The inifact, conclusions of law, and a pro tial decision of the Presiding Officer posed order, together with briefs in shall become the final order of the Adsupport thereof. The Presiding Officer
ministrator within forty-five (45) days shall set a time by which reply briefs
after its service upon the parties and must be submitted. All submissions
without further proceedings unless (1) shall be in writing, shall be served an appeal to the Administrator is upon all parties, and shall contain ade
taken from it by a party to the proquate references to the record and au
ceedings, or (2) the Administrator thorities relied on.
elects, sua sponte, to review the initial
decision. Subpart E-Initial Decision and Motion To Reopen a Hearing 8 22.28 Motion to reopen a hearing.
(a) Filing and content. A motion to $ 22.27 Initial decision.
reopen a hearing to take further evi(a) Filing and contents. The Presid. dence must be made no later than ing Officer shall issue and file with twenty (20) days after service of the the Regional Hearing Clerk his initial initial decision on the parties and shall decision as soon as practicable after (1) state the specific grounds upon the period for filing reply briefs under which relief is sought, (2) state briefly $ 22.26 has expired. The Presiding Of the nature and purpose of the evificer shall retain a copy of the com- dence to be adduced, (3) show that plaint in the duplicate file. The initial such evidence is not cumulative, and decision shall contain his findings of (4) show good cause why such evidence was not adduced at the hearing. ruling will materially advance the ultiThe motion shall be made to the Pre mate termination of the proceeding, or siding Officer and filed with the Re- (ii) review after the final order is gional Hearing Clerk.
issued will be inadequate or ineffec(b) Disposition of motion to reopen tive. a hearing. Within ten (10) days follow (c) Decision. If the Administrator ing the service of a motion to reopen a determines that certification was imhearing, any other party to the pro
providently granted, or if he takes no ceeding may file with the Regional
action within thirty (30) days of the Hearing Clerk and serve on all other
certification, the appeal is dismissed. parties an answer thereto. The Presid
When the Presiding Officer declines ing Officer shall announce his intent
to certify an order or ruling to the Adto grant or deny such motion as soon
ministrator on interlocutory appeal, it as practicable thereafter. The conduct
may be reviewed by the Administrator of any proceeding which may be re
only upon appeal from the initial deciquired as a result of the granting of any motion allowed in this section
sion, except when the Administrator
determines, upon motion of a party shall be governed by the provisions of
and in exceptional circumstances, that the applicable sections of these rules.
to delay review would be contrary to The filing of a motion to reopen a
the public interest. Such motion shall hearing shall automatically stay the
be made within six (6) days of service running of all time periods specified
of an order of the Presiding Officer reunder these Rules until such time as the motion is denied or the reopened
fusing to certify a ruling for interlocu
tory appeal to the Administrator. Orhearing is concluded.
dinarily, the interlocutory appeal will
be decided on the basis of the submisSubpart F-Appeals and Administrative Review
sions made by the Presiding Officer.
The Administrator may, however, 8 22.29 Appeal from or review of interloc
allow further briefs and oral argu
ment. utory orders or rulings.
(d) Stay of proceedings. The Presid(a) Request for interlocutory appeal. ing Officer may stay the proceedings Except as provided in this section, ap
pending a decision by the Administrapeals to the Administrator shall obtain
tor upon an order or ruling certified as a matter of right only from a de
by the Presiding Officer for an interfault order, an accelerated decision or
locutory appeal. Proceedings will not decision to dismiss issued under
be stayed except in extraordinary cir8 22.20(b)(1), or an initial decision ren
cumstances. Where the Presiding Offidered after an evidentiary hearing.
cer grants a stay of more than thirty Appeals from other orders or rulings
(30) days, such stay must be separateshall lie only if the Presiding Officer
ly approved by the Administrator. or Regional Administrator, as appropriate, upon motion of a party, certi
$ 22.30 Appeal from or review of initial fies such orders or rulings to the Ad
decision. ministrator on appeal. Requests for such certification shall be filed in writ (a) Notice of appeal. (1) Any party ing within six (6) days of notice of the may appeal any adverse ruling or ruling or service of the order and order of the Presiding Officer by filing shall state briefly the grounds to be a notice of appeal and an accompany. relied upon on appeal.
ing appellate brief with the Hearing (b) Availability of interlocutory Clerk and upon all other parties and appeal. The Presiding Officer may cer amicus curiae within twenty (20) days tify any ruling for appeal to the Ad after the initial decision is served upon ministrator when (1) the order or the parties. The notice of appeal shall ruling involves an important question set forth alternative findings of fact, of law or policy concerning which alternative conclusions regarding there is substantial grounds for differ issues of law or discretion, and a proence of opinion, and (2) either (i) an posed order together with relevant ref. immediate appeal from the order or erences to the record and the initial
Subpart G-Final Order on Appeal
decision. The appellant's brief shall contain a statement of the issues presented for review, a statement of the nature of the case and the facts relevant to the issues presented for review, argument on the issues presented, and a short conclusion stating the precise relief sought, together with appropriate references to the record.
(2) Within fifteen (15) days of the service of notices of appeal and briefs under paragraph (a)(1) of this section, any other party or amicus curiae may file and serve with the Hearing Clerk a reply brief responding to argument raised by the appellant, together with references to the relevant portions of the record, initial decision, or opposing brief. Reply briefs shall be limited to the scope of the appeal brief. Further briefs shall be filed only with the permission of the Administrator.
(b) Sua sponte review by the Administrator. Whenever the Administrator determines sua sponte to review an initial decision, the Hearing Clerk shall serve notice of such intention on the parties within forty-five (45) days after the initial decision is served upon the parties. The notice shall include a statement of issues to be briefed by the parties and a time schedule for the service and filing of briefs.
(c) Scope of appeal or review. The appeal of the initial decision shall be limited to those issues raised by the parties during the course of the proceeding. If the Administrator determines that issues raised, but not appealed by the parties, should be argued, he shall give counsel for the parties reasonable written notice of such determination to permit preparation of adequate argument. Nothing herein shall prohibit the Administrator from remanding the case to the Presiding Officer for further proceed
8 22.31 Final order on appeal.
(a) Contents of the final order. When an appeal has been taken or the Administrator issues a notice of intent to conduct review sua sponte, the Administrator shall issue a final order as soon as practicable after the filing of all appellate briefs or oral argument, whichever is later. The Administrator shall adopt, modify or set aside the findings and conclusions contained in the decision or order being reviewed, and shall set forth in the final order the reasons for his actions. The Administrator may, in his discretion, increase or decrease the assessed penalty from the amount recommended to be assessed in the decision or order being reviewed, except that if the order being reviewed is a default order, the Administrator may not increase the amount of the penalty.
(b) Payment of a civil penalty. The respondent shall pay the full amount of the civil penalty assessed in the final order within sixty (60) days after receipt of the final order unless otherwise agreed by the parties. Payment shall be made by forwarding to the Regional Hearing Clerk a cashier's check or certified check in the amount of the penalty assessed in the final order, payable to the Treasurer, United States of America.
$ 22.32 Motion to reconsider a final order.
Motions to reconsider a final order shall be filed within ten (10) days after service of the final order. Every such motion must set forth the matters claimed to have been erroneously decided and the nature of the alleged errors. Such motion shall not stay the effective date of the final order unless specifically so ordered by the Administrator.
Subpart H-Supplemental Rules
(d) Argument before the Administrator. The Administrator may, upon request of a party or sua sponte, assign a time and place for oral argument after giving consideration to the convenience of the parties.
& 22.33 Supplemental rules of practice
governing the administrative assessment of civil penalties under the Toxic
Substances Control Act. (a) Scope of these Supplemental rules. These Supplemental rules of
practice shall govern, in conjunction Officer determines that there is good with the preceding consolidated rules cause for it to be held at another locaof practice (40 CFR Part 22), all tion. formal adjudications for the assess (c) "Presiding Officer". For purposes ment of any civil penalty conducted of hearings conducted pursuant to under section 16(a) of the Toxic Sub
$ 211 of the Clean Air Act, "Presiding stances Control Act (15 U.S.C.
Officer" means the Administrative 2615(a)). Where inconsistencies exist
Law Judge appointed under 5 U.S.C. between these Supplemental rules and
3105 (see also Pub. L. 95-251, 92 Stat. the Consolidated rules, ($ $ 22.01
183) or an attorney who is an employ. 22.32), these Supplemental rules shall
ee or authorized representative of the apply.
Agency. (b) Subpoenas. (1) The attendance of
(d) Assignment of a Presiding Offiwitnesses or the production of docu
cer. Upon the filing of an answer, the mentary evidence may be required by subpoena. The Presiding Officer may
Regional Hearing Clerk or Hearing
Clerk, as appropriate, shall forward grant a request for a subpoena upon a showing of (i) the grounds and necessi
the complaint, answer, and any other ty therefor, and (ii) the materiality
documents filed thus far in the proand relevancy of the evidence to be ad
ceeding to the Regional Administrator duced. Requests for the production of
or Administrator, respectively, who documents shall describe the evidence shall assign the Presiding Officer. The sought as specifically as practicable. Regional Administrator or Administra
(2) Subpoenas shall be served in ac tor may, however, forward the case cordance with $ 22.05(b)(1) of the Con file to the Chief Administrative Law solidated Rules of Practice.
Judge and request that he assign an (3) Witnesses summoned before the Administrative Law Judge as Presiding Presiding Officer shall be paid the Officer. If the Chief Administrative same fees and mileage that are paid Law Judge finds that such an assignwitnesses in the courts of the United ment can be made without impairing States. Fees shall be paid by the party the ability of his office to timely disat whose instance the witness appears. charge its other responsibilities, he Where a witness appears pursuant to a
shall make the assignment. Otherwise, request initiated by the Presiding Offi
he shall notify the Regional Adminiscer, fees shall be paid by the agency.
trator or Administrator that he is 8 22.34 Supplemental rules of practice
unable to make such an assignment. governing the administrative assess.
The Presiding Officer assigned to the
proceeding shall obtain the case file ment of civil penalties under Title II of the Clean Air Act.
from the Chief Administrative Law
Judge, Regional Administrator, or Ad. (a) Scope of these Supplemental
ministrator, as appropriate, and notify rules. These Supplemental rules of
the parties of his assignment. practice shall govern, in conjunction
(e) Evaluation of proposed civil penwith the preceding Consolidated Rules
alty. In determining the dollar amount of Practice (40 CFR Part 22), all formal adjudications for the assess
of the recommended civil penalty asment of any civil penalty conducted
sessed in the initial decision, the Preunder Section 211 of the Clean Air Act
siding Officer shall consider (1) the as amended (42 U.S.C. 7445). Where
gravity of the violation, (2) the size of inconsistencies exist between these
respondent's business, (3) the respondSupplemental rules and the Consoli
ent's history of compliance with the dated Rules, (88 22.01-22.32), these
Act, (4) the action taken by respondSupplemental rules shall apply.
ent to remedy the specific violation, (b) Headquarters enforcement. and (5) the effect of such proposed Where the complainant is the Assist penalty on respondent's ability to conant Administrator for Enforcement or tinue in business. The Presiding Offihis delegate, the prehearing confer cer must also consider any guidelines ence and hearing shall be held in for the Assessment of Civil Penalties Washington, DC, unless the Presiding issued under the Act.
$ 22.35 Supplemental rules of practice dated Rules, ($ $ 22.01-22.32), these
governing the administrative assess. Supplemental rules shall apply. ment of civil penalties under the Feder (b) Additional criterion for the issual Insecticide, Fungicide, and Rodenti- ance of a complaint for the revocation cide Act.
or suspension of a permit. In addition (a) Scope of these Supplemental to the three criteria listed in 40 CFR rules. These Supplemental rules of 22.13 for issuing a complaint for the practice shall govern, in conjunction revocation or suspension of a permit, with the preceding Consolidated Rules complaints may be issued on the basis of Practice (40 CFR Part 22), all of a person's failure to keep records formal adjudications for the assess and notify appropriate officials of ment of any civil penalty conducted dumping activities, as required by 40 under Section 14(a) of the Federal In
CFR 224.1 and 223.2. secticide, Fungicide, and Rodenticide Act as amended (7 U.S.C. 1261(a)). 822.37 Supplemental rules of practice Where inconsistencies exist between governing the administrative assessthese Supplemental rules and the
ment of civil penalties under the Solid Consolidated rules, ($ $ 22.01-22.32),
Waste Disposal Act. these Supplemental rules shall apply. (b) Venue. The prehearing confer
(a) Scope of these Supplemental ence and the hearing shall be held in rules. These Supplemental rules of the county, parish, or incorporated practice shall govern, in conjunction city of the residence of the person with the preceding Consolidated Rules charged, unless otherwise agreed in of Practice (40 CFR Part 22), all prowriting by all parties.
ceedings to assess a civil penalty con(C) Evaluation of proposed civil pen- ducted under Section 3008 of the Solid alty. In determining the dollar amount Waste Disposal Act (42 U.S.C. 6928) of the recommended civil penalty as- (the “Act”). Where inconsistencies sessed in the initial decision, the Pre- exist between these Supplemental siding Officer shall consider, in addi- rules and the Consolidated Rules, tion to the criteria listed in section (88 22.01-22.32), these Supplemental 14(a)(3) of the Act, (1) respondent's rules shall apply.
istory of compliance with the Act or (b) Issuance of notice. Whenever, on its predecessor statute and (2) any evi
the basis of any information, the Addence of good faith or lack thereof.
ministrator determines that any The Presiding Officer must also con
person is in violation of (1) any resider the guidelines for the Assess
quirement of Subtitle C of the Act, (2) ment of Civil Penalties published in
any regulation promulgated pursuant the FEDERAL REGISTER (39 FR 27711),
to Subtitle C of the Act, or (3) a term and any amendments or supplements
or condition of a permit issued pursuthereto.
ant to Subtitle of the Act, the Ad8 22.36 Supplemental rules of practice
ministrator shall issue notice to the algoverning the administrative assess
leged violator of his failure to comply ment of civil penalties and the revoca
with such requirement, regulation or tion or suspension of permits under the permit. Marine Protection, Research, and (c) Content of notice. Each notice of
(c) Content of notice. Ea Sanctuaries Act.
violation shall include: (a) Scope of these Supplemental
(1) A specific reference to each prorules. These Supplemental rules shall
vision of the Act, regulation, or permit govern, in conjunction with the pre
term or condition which the alleged ceding Consolidated Rules of Practice violator is alleged to have violated; (40 CFR Part 22), all formal adjudica- and tions conducted under Section 105(a) (2) A concise statement of the factuor (f) of the Marine Protection, Re- al basis for alleging such violation. search, and Sanctuaries Act as amend (d) Service of notice. Service of ed (33 U.S.C. 1415(a) and (f)). Where notice shall be made in accordance inconsistencies exist between these with $ 22.05(b)(2) of the Consolidated Supplemental rules and the Consoli- Rules of Practice.