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or programs to control such sources cannot tered, modified, changed, or destroyed be determined at this time. As State and

by any applicant in the course of proareawide plans for control of nonpoint

viding such statement to SBA. To do sources being prepared under section 208 of

so can result in the revocation of any the Act, will not be completed for several years, this section is being reserved pending

approval contained in the statement a future determination on the eligibility of

and subject the applicant to the penalapplications relating to non-profit sources ties provided in 18 U.S.C. 1001. to receive a statement under this part.

(c) If an application for which a

statement is issued under $ 21.5 is sub$21.8 Resubmission of application.

stantively changed in scope, concept, (a) A small business concern whose design, or capability prior to the apapplication is disapproved may submit proval by SBA of the financial assistan amended or corrected application ance requested, the statement as to the Regional Administrator at any issued shall be revoked. The applicant time. The applicant shall provide the must resubmit a revised application date of any previous application.

under $ 21.3 and a new review must be

conducted. Failure to meet the re8 21.9' Appeals.

quirements of this paragraph could (a) An applicant aggrieved by a de subject the applicant to the penalties termination of a Regional Administra specified in 18 U.S.C. 1001 and 18 tor under $ 21.5 may appeal in writing U.S.C. 286. A substantive change is to the Deputy Administrator of the one which materially affects the perEnvironmental Protection Agency, formance or capability of the proposed within 30 days of the date of the de- addition, alteration, or method of optermination from which an appeal is eration. taken; Provided, That the Deputy Ad (d) An agency, Regional Administraministrator may, on good cause shown, tor, or State issuing a statement under accept an appeal at a later time.

$ 21.5 shall retain a complete copy of (b) The applicant in requesting such the application for a period of five an appeal shall submit to the Deputy years after the date of issuance of the Administrator a copy of the complete statement. The application shall be application as reviewed by the Region made available upon request for inal Administrator.

spection or use at any time by any (c) The applicant should also pro agency of the Federal Government. vide information as to why it believes (e) No application for a statement or the determination made by the Re for financial assistance under this secgional Administrator to be in error. tion or statement issued under this

(d) The Deputy Administrator shall section shall constitute or be conact upon such appeal within 60 days of strued as suspending, modifying, revisreceipt of any complete application for ing, abrogating or otherwise changing a review of the determination.

the requirements imposed on the ap(e) Where a State has been delegat. plicant by the terms, conditions, limied certification authority, the proce- tations or schedules of compliance dure for appeals shall be established contained in an applicable standard, in the State submission required in permit, or other provision established $ 21.12.

or authorized under the Act or any

State or local statute, ordinance or 8 21.10 Utilization of the statement.

code. (a) Statements issued by the Region. (f) No statement as issued and real Administrator will be mailed to the viewed shall be construed as a waiver small business applicant and to the to the applicants fulfilling the requiredistrict office of the Small Business ments of any State or local law, statAdministration serving the geographic ute, ordinance, or code (including area where the business is located. It building, health, or zoning codes). is the responsibility of the applicant to (g) An amended application need not also forward the statement to SBA as be submitted if the facility, property, part of the application for a loan.

or operation for which the statement (b) Any statement or determination is issued is sold, leased, rented, or issued under $ 21.5 shall not be al transferred by the applicant to an

er, That if access to such information is subsequently requested by any person, there will be compliance with the procedures specified in 40 CFR Part 2. Such information may be disclosed to other officers, employees, or authorized representatives of the United States concerned with carrying out the Act or when relevant in any proceeding under the Act.

other party prior to approval by SBA of the financial assistance: Provided, That there is or will be no substantive change in the scope, concept, design, capability, or conduct of the facility or operation.

Comment: However, eligibility for finan. cial assistance would be reexamined by SBA with regard to any such sale, lease, rental or transfer.

(h) The Regional Administrator may include in any statement a date of expiration, after which date the approval by the Regional Administrator con tained in the statement shall no longer apply. The date of expiration shall not become effective if the appli. cant has submitted the statement to the SBA, prior to the date of expiration, as part of the application for financial assistance.

8 21.11 Public participation.

(a) Applications shall not generally be subject to public notice, public comment, or public hearings. Applications during the period of review as stated in $ 21.5, or during the period of appeal as provided in § 21.8, shall be available for public inspection. Approved applications as provided in § 21.10(d) shall be available for public inspection at all times during the five year period.

(b) The Regional Administrator, if he believes that the addition, alteration, or method of operation may adversely and significantly affect an interest of the public, shall provide for a public notice and/or public hearing on the application. The public notice and/or public hearing shall be conducted in accordance with the procedures specified for a permit under 40 CFR 125.32 and 40 CFR 125.34(b).

(c) Where the applicant is able to demonstrate to the satisfaction of the Regional Administrator that disclosure of certain information or parts thereof as provided in $ 21.3(c)(5) would result in the divulging of methods or processes entitled to protection as trade secrets, the Regional Administrator shall treat the information or the particular part as confidential in accordance with the purposes of sec. tion 1905 of Title 18 of the United States Code and not release it to any unauthorized person. Provided, howev

8 21.12 State issued statements.

(a) Any State after the effective date of these regulations may submit to the Regional Administrator for his approval an application to conduct a program for issuing statements under this section.

(1) A State submission shall specify the organizational, legal, financial, and administrative resources and procedures that it believes will enable it to conduct the program.

(2) The State program shall constitute an equivalent effort to that required of EPA under this section.

(3) The State organization responsible for conducting the program should be the State water pollution control agency, as defined in section 502 of the Act.

(4) The State submission shall propose a procedure for adjudicating applicant appeals as provided under § 21.9.

(5) The State submission shall identify any existing or potential conflicts of interest on the part of any personnel who will or may review or approve applications.

(i) A conflict of interest shall exist where the reviewing official is the spouse of or dependent (as defined in the Tax Code, 26 U.S.C. 152) of an owner, partner, or principal officer of the small business, or where he has or is receiving from the small business concern applicant 10 percent of gross personal income for a calendar year, except that it shall mean 50 percent gross personal income for a calendar year if the recipient is over 60 years of age and is receiving such portion pursuant to retirement, pension, or similar arrangements.

(ii) If the State is unable to provide alternative parties to review or approve any application subject to con

(i) If within 60 days after notice of such deficiencies has been provided, the State has not taken corrective efforts, and if the deficiencies significantly affect the conduct of the program, the Regional Administrator, after sufficient notice has been provided to the Regional Director of SBA, shall withdraw the approval of the State program.

(ii) Any State whose program is withdrawn and whose deficiencies have been corrected may later reapply as provided in § 21.12(a).

(g) Funds appropriated under section 106 of the Act may be utilized by a State agency authorized to receive such funds in conducting this program.

flict of interest, the Regional Adminis. trator shall review and approve the application.

(b) The Regional Administrator, within 60 days after such application, shall approve any State program that conforms to the requirements of this Section. Any such approval shall be after sufficient notice has been provided to the Regional Director of SBA.

(c) If the Regional Administrator disapproves the application, he shall notify the State, in writing, of any deficiency in its application. A State may resubmit an amended application at any later time.

(d) Upon approval of a State submission, EPA will suspend all review of applications and issuance of statements for small businesses in that State, pending transferral. Provided, however, That in the event of a State conflict of interest as identified in $ 21.12(a)(4) supra, EPA shall review the application and issue the statement.

(e) Any applications shall, if received by an EPA Regional Office, be forwarded promptly to the appropriate State for action pursuant to section 7(g)(2) of the Small Business Act and these regulations.

(f) (1) EPA will generally not review or approve individual statements issued by a State. However, SBA, upon receipt and review of a State approved statement may request the Regional Administrator of EPA to review the statement. The Regional Administrator, upon such request can further approve or disapprove the State issued statement, in accordance with the requirements of $ 21.5.

(2) The Regional Administrator will periodically review State program performance. In the event of State program deficiencies the Regional Administrator will notify the State of such deficiencies.

(3) During that period that any State's program is classified as deficient, statements issued by a State shall also be sent to the Regional Administrator for review. The Regional Administrator shall notify the State, the applicant, and the SBA of any determination subsequently made, in accordance with $ 21.5, on any such statement.

8 21.13 Effect of certification upon au

thority to enforce applicable standards. The certification by EPA or a State for SBA Loan purposes in no way constitutes a determination by EPA or the State that the facilities certified (a) will be constructed within the time specified by an applicable standard or (b) will be constructed and installed in accordance with the plans and specifications submitted in the application, will be operated and maintained properly, or will be applied to process wastes which are the same as described in the application. The certification in no way constitutes a waiver by EPA or a State of its authority to take appropriate enforcement action against the owner or operator of such facilities for violations of an applicable standard.



Subpart A-General


22.01 Scope of these rules. 22.02 Use of number and gender. 22.03 Definitions. 22.04 Powers and duties of the Administra

tor, Regional Administrator, Judicial Officer, Regional Judicial Officer, and Presiding Officer; disqualification.


Sec. 22.05 Filing, service, and form of pleadings

and documents. 22.06 Filing and service of rulings, orders

and decisions 22.07 Computation and extension of time. 22.08 Ex parte discussion of proceeding. 22.09 Examination of documents filed.

Subpart B-Parties and Appearances

22.10 Appearances. 22.11 Intervention. 22.12 Consolidation and severance.

Subpart C-Prehearing Procedures

22.34 Supplemental rules of practice gov

erning the administrative assessment of civil penalties under Title II of the

Clean Air Act. 22.35 Supplemental rules of practice gov

erning the administrative assessment of civil penalties under the Federal Insecti

cide, Fungicide, and Rodenticide Act. 22.36 Supplemental rules of practice gov.

erning the administrative assessment of civil penalties and the revocation or suspension of permits under the Marine Protection, Research, and Sanctuaries

Act 22.37 Supplemental rules of practice gov

erning the administrative assessment of civil penalties under the Solid Waste


FICES AUTHORITY: Sec. 16 of the Toxic Substances Control Act; secs. 211 and 301 of the Clean Air Act; secs. 14 and 25 of the Federal Insecticide, Fungicide, and Rodenticide Act; secs. 105 and 108 of the Marine Protection, Research, and Sanctuaries Act; and secs. 2002 and 3008 of the Solid Waste Disposal Act.

SOURCE: 45 FR 24363, Apr. 9, 1980, unless otherwise noted.

22.13 Issuance of complaint. 22.14 Content and amendment of the com

plaint. 22.15 Answer to the complaint. 22.16 Motions. 22.17 Default order. 22.18 Informal settlement; consent agree

ment and order. 22.19 Prehearing conference. 22.20 Accelerated decision; decision to dis


Subpart A-General

Subpart D-Hearing Procedure 22.21 Scheduling the hearing. 22.22 Evidence. 22.23 Objections and offers of proof. 22.24 Burden of presentation; burden of

persuasion. 22.25 Filing the transcript. 22.26 Proposed findings, conclusions, and


Subpart E-Initial Decision and Motion to

Reopen a Hearing

22.27 Initial decision. 22.28 Motion to reopen a hearing.

Subpart F-Appeals and Administrative

Review 22.29 Appeal from or review of interlocu

tory orders or rulings. 22.30 Appeal from or review of initial deci.


8 22.01 Scope of these rules.

(a) These rules of practice govern all adjudicatory proceedings for:

(1) The assessment of any civil penalty conducted under section 14(a) of the Federal Insecticide, Fungicide and Rodenticide Act as amended (7 U.S.C. 1361(a));

(2) The assessment of any civil penalty conducted under section 211 of the Clean Air Act as amended (42 U.S.C. 7545);

(3) The assessment of any civil penalty or for the revocation or suspension of any permit conducted under section 105 (a) and (f) of the Marine Protection, Research, and Sanctuaries Act as amended (33 U.S.C. 1415(a));

(4) The issuance of a compliance order or the assessment of any civil penalty conducted under section 3008 of the Solid Waste Disposal Act as amended (42 U.S.C. 6928);

(5) The assessment of any civil penalty conducted under section 16(a) of alty conducted under section 101a) the Toxic Substances Control Act (15 U.S.C. 2615(a)).

Subpart G-Final Order on Appeal 22.31 Final order on appeal. 22.32 Motion to reconsider a final order.

Subpart H-Supplemental Rules 22.33 Supplemental rules of practice gov.

erning the administrative assessment of civil penalties under the Toxic Substances Control Act.

(b) The Supplemental rules of prac- pension acceptable to both complaintice set forth in Subpart H establish ant and respondent. rules governing those aspects of the "Final Order" means (a) an order proceeding in question which are not issued by the Administrator after an covered in Subparts A through G, and appeal of an initial decision, acceleralso specify procedures which super- ated decision, decision to dismiss, or sede any conflicting procedures set default order, disposing of a matter in forth in those subparts.

controversy between the parties, or (b) (c) Questions arising at any stage of an initial decision which becomes a the proceeding which are not ad final order under $ 22.27(c). dressed in these rules or in the rele “Hearing" means a hearing on the vant supplementary procedures shall record open to the public and conductbe resolved at the discretion of the Ad ed under these rules of practice. ministrator, Regional Administrator, "Hearing Clerk” means the Hearing or Presiding Officer, as appropriate. Clerk, A-110, United States Environ

mental Protection Agency, 401 M St. $ 22.02 Use of number and gender.

SW., Washington, DC 20460. As used in these rules of practice, "Initial Decision" means the deciwords in the singular also include the sion issued by the Presiding Officer plural and words in the masculine based upon the record of the proceedgender also include the feminine and ings out of which it arises. vice versa, as the case may require.

“Judicial Officer" means the person

designated by the Administrator $ 22.03 Definitions.

under $ 22.04(b) to serve as the Judi(a) The following definitions apply cial Officer. to Part 22:

"Party" means any person that par“Act" means the particular statute ticipates in a hearing as complainant, authorizing the institution of the pro- respondent, or intervenor. ceeding at issue.

"Permit" means a permit issued "Administrative Law Judge' means under Section 102 of the Marine Proan Administrative Law Judge appoint- tection, Research, and Sanctuaries ed under 5 U.S.C. 3105 (see also Pub. Act. L. 95-251, 92 Stat. 183).

"Person" includes any individual, "Administrator" means the Adminis- partnership, association, corporation, trator of the United States Environ and any trustee, assignee, receiver or mental Protection Agency or his dele legal successor thereof; any organized gate.

group of persons whether incorporat“Agency" means the United States ed or not; and any officer, employee, Environmental Protection Agency. agent, department, agency or instru

"Complainant" means any person mentality of the Federal Government, authorized to issue a complaint on of any State or local unit of governbehalf of the Agency to persons al- ment, or of any foreign government. leged to be in violation of the Act. The “Presiding Officer" means the Adcomplainant shall not be the Judicial ministrative Law Judge designated by Officer, Regional Judicial Officer, or the Chief Administrative Law Judge to any other person who will participate serve as Presiding Officer, unless othor advise in the decision.

erwise specified by any Supplemental "Complaint" means a written com Rules. munication, alleging one or more viola "Regional Administrator" means the tions of specific provisions of the Act, Administrator of any Regional Office or regulations or a permit promulgat of the Agency or any officer or emed thereunder, issued by the complain ployee thereof to whom his authority ant to a person under $8 22.13 and is duly delegated. Where the Regional 22.14.

Administrator has authorized the Re"Consent Agreement" means any gional Judicial Officer to act, the term written document, signed by the par- "Regional Administrator" shall inties, containing stipulations or conclu- clude the Regional Judicial Officer. In sions of fact or law and a proposed a case where the complainant is the penalty or proposed revocation or sus Assistant Administrator for Enforce

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