Page images
PDF
EPUB

§ 17.6 Standards for awards.

(a) A prevailing applicant may receive an award for fees and expenses incurred in connection with a proceeding unless the position of the EPA as a party to the proceeding Was Substantially justified or unless Special circumstances make the award Sought unjust. No presumption arises that the agency’s position was not Substantially justified Simply because the agency did not prevail.

(b) An award Shall be reduced Or denied if the applicant has unduly or unreasonably protracted the proceeding.

§ 17.7 Allowable fees and other expenses.

(a) The following fees and other expenses are allowable under the Act: (1) Reasonable expenses Of expert WitneSSes; (2) The reasonable Cost Of any Study, analysis, engineering report, test, Or project which EPA finds necessary for the preparation of the party’s Case; (3) Reasonable attorney Or agent fees; (b) The amount of fees awarded will be based upon the prevailing market, rates for the kind and quality Of Services furnished, except that: (1) Compensation for an expert Witness will not exceed $24.09 per hour; and (2) Attorney Or agent fees will not be in excess of $75 per hour. (c) In determining the reasonableness of the fee sought, the Presiding Officer Shall consider the following: (1) The prevailing rate for Similar Services in the Community in which the attorney, agent, Or Witness Ordinarily performs Services; (2) The time actually spent in the representation of the applicant; (3) The difficulty or complexity of the issues raised by the application; (4) Any necessary and reasonable expenses incurred; (5) Such other factors as may bear On the value of the Services performed.

§ 17.8 Delegation of authority.

The Administrator delegates to the Environmental Appeals Board authority to take final action relating to the Equal Access to Justice Act. The Environmental Appeals Board is described at 40 CFR 1.25(e). This delegation does

not preclude the Environmental Ap— peals Board from referring any matter related to the Equal Access to Justice Act to the Administrator when the EnVironmental Appeals Board deems it appropriate to do so. When an appeal or motion is referred to the Administrator by the Environmental Appeals Board, all parties shall be so notified and the rules in this part referring to the Environmental Appeals Board Shall be interpreted as referring to the AdminiStrator.

[57 FR 5323, Feb 13, 1992]

Subpdrf B–Information Required From Applicants

§ 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 a S. 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 Onit 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. 114.j(a)).

(c) If the applicant is a partnership, Corporation, a SSociation, 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. (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.

(Approved by the Office of Management and Budget, under control number 2000–0403)

§ 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 indirectly 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 a SSetS 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 addi

tional 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.

(Approved by the Office of Management and Budget, under control number 2000–0430)

§ 17.13 Documentation of fees and expenses.

(a) The application Shall be accompanied by full documentation of fees and expenses, including the cost of any Study, engineering report, test, or project, for which an award is sought. (b) The documentation shall include an affidavit from any attorney, agent, Or expert Witness representing or appearing in behalf of the party Stating the actual time expended and the rate at which fees and other expenses were Computed and describing the specific Services performed. (1) The affidavit Shall itemize in detail the Services performed by the date, number of hours per date, and the Services performed during those hours. In Order to establish the hourly rate, the affidavit Shall State the hourly rate which is billed and paid by the majority Of Clients during the relevant time periods. (2) If no hourly rate is paid by the majority Of Clients because, for inStance, the attorney Or agent representS most ClientS On a Contingency basis, the attorney Or agent Shall provide affidavits from two attorneys or agentS with Similar experience, who perform Similar work, Stating the hourly rate which they bill and are paid by the majority of their clients during a COmparable time period. (c) The documentation Shall also include a description Of any expenses for which reimbursement is sought and a statement of the amounts paid and payable by the applicant or by any other person or entity for the Services provided.

(d) The Presiding Officer may require the applicant to provide vouchers, receipts, or Other Substantiation for any expenses claimed.

(Approved by the Office of Management and Budget under control number 2000–0430)

§ 17.14 Time for submission of application.

(a) An application must be filed no later than 30 days after final disposition of the proceeding. If agency review or reconsideration is Sought Or taken of a decision in which an applicant believes it has prevailed, action on the award of fees Shall be Stayed pending final agency disposition of the underlying Controversy.

(b) Final disposition means the later of: (1) The date On which the Agency decision becomes final, either through disposition by the Environmental Appeals Board of a pending appeal Or through an initial decision becoming final due to lack of an appeal or (2) the date Of final resolution of the proceeding, Such as Settlement. Or voluntary dismissal, which is not subject to a petition for rehearing Or reconsideration.

(c) If judicial review is sought or taken of the final agency disposition of the underlying Controversy, then agenCy proceedings for the award of fees will be stayed pending completion of judicial review. If, upon completion of review, the court decides what fees to award, if any, then EPA shall have no authority to award fees.

[48 FR 39936, Sept. 2, 1983, as amended at 57 FR 5323, Feb. 13, 1992]

Subport C–Procedures for Considering Applications

§ 17.21 Filing and service of documents.

An application for an award and any other pleading Or document related to the application shall be filed and served on all parties to the proceeding in the same manner as Other pleadings in the proceeding.

§ 17.22 Answer to application.

(a) Within 30 calendar days after Service of the application, EPA counsel Shall file an answer.

(b) If EPA counsel and the applicant believe that they can reach a settlement Concerning the award, EPA counSel may file a statement of intent to negotiate. The filing of such a statement shall extend the time for filing an answer an additional 30 days.

(c) The answer shall explain in detail any objections to the award requested and identify the facts relied on to Support the Objection. If the answer is based on any alleged facts not already reflected in the record of the proceeding, EPA Counsel Shall include with the answer either a Supporting affidavit or affidavitS or request for further proCeedingS under § 17.25.

§ 17.23 Comments by other parties.

Any party to a proceeding other than the applicant and EPA counsel may file COmmentS On an application within 30 Calendar days after it is Served Or on an answer within 15 calendar days after it iS Served.

§ 17.24 Settlement.

A prevailing party and EPA counsel may agree On a proposed Settlement of an award before final action on the application, either in connection with a Settlement of the underlying proceeding Or after the underlying proceeding has been concluded. If the party and EPA counsel agree on a proposed settlement of an award before an application has been filed, the application shall be filed with the proposed settlement.

§ 17.25 Extensions of time and further proceedings.

(a) The Presiding Officer may, on mo– tion and for good cause shown, grant extensions of time, other than for filing an application for fees and expenses, after final disposition in the adversary adjudication.

(b) Ordinarily, the determination of an award will be made On the basis of the written record of the underlying proceeding and the filings required or permitted by the foregoing Sections of these rules. However, the adjudicative officer may sua spomte Or on motion of any party to the proceedings require or permit further filings or other action, Such as an informal conference, oral argument, additional written submisSions, or an evidentiary hearing. Such further action shall be allowed only When necessary for full and fair resolution of the issues arising from the application and Shall take place as promptly as possible. A motion for further filings or other action shall speCifically identify the information Sought on the disputed issues and shall explain why the further filings or other action is necessary to resolve the issues.

(c) In the event that an evidentiary hearing is required or permitted by the adjudicative Officer, Such hearing and any related filings or other action reQuired Or permitted Shall be conducted pursuant to the procedural rules governing the underlying adversary adjudication.

§ 17.26 Decision on application.

The Presiding Officer shall issue a recommended decision on the application which shall include proposed written findings and conclusions on such of the following as are relevant to the deCision: (a) The applicant’s status as a prevailing party; (b) the applicant’s Qualification as a “party” under 5 U.S.C. 504(b)(1)(B); (c) whether EPA’s position as a party to the proceeding Was Substantially justified; (d) whether the Special Cirumstances make an award unjust; (e) whether the applicant during the course of the proceedings engaged in Conduct that unduly and unreasonably protracted the final resolution of the matter in controversy; and (f) the amounts, if any, awarded for fees and other expenses, explaining any difference between the amount requested and the amount awarded.

§ 17.27 Agency review.

The reCOmmended decision of the Presiding Officer will be reviewed by EPA in accordance with EPA’s procedures for the type of substantive proceeding involved.

§ 17.28 Judicial review.

Judicial review of final EPA deciSiOnS On awards may be sought as provided in 5 U.S.C. 504(c)(2).

[blocks in formation]

TABLE 1 OF SECTION 19.4–CIVIL MONETARY PENALTY INFLATION ADJUSTMENTS U.S. Code citation Civil monetary penalty description No.

7 U.S.C. 1361.(a)(1).............. FEDERAL INSECTICIDE, FUNGICIDE, & RODENTICIDE ACT CIVIL || $5,500
PENALTY-GENERAL–COMMERCIAL APPLICATORS, ETC.

7 U.S.C. 1361.(a)(2) .............. FEDERAL INSECTICIDE, FUNGICIDE, & RODENTICIDE ACT CIVIL | $550/$1,000
PENALTY-PRIVATE APPLICATORS–FIRST AND SUBSEOUENT
OFFENSES OR VIOLATIONS.

15 U.S.C. 2615(a) ................. TOX1C SUBSTANCES CONTROL ACT CIVIL PENALTY ........................ $27,500

15 U.S.C. 2647(a) ................. ASBESTOS HAZARD EMERGENCY RESPONSE ACT CIVIL PENALTY || $5,500

31 U.S.C. 3802(a)(1) ............. PROGRAM FRAUD CIVIL REMEDIES ACT/VIOLATION INVOLVING | $5,500 FALSE CLAIM.

31 U.S.C. 3802(a)(2) ............. PROGRAM FRAUD CIVIL REMEDIES ACT/VIOLATION INVOLVING | $5,500 FALSE STATEMENT.

33 U.S.C. 1319(d) ................. CLEAN WATER ACT VOLATION/CIVIL JUDICIAL PENALTY ................ $27,500

33 U.S.C. 1319(g)(2)(A) ........ CLEAN WATER ACT VIOLATION/ADMINISTRATIVE PENALTY PER $11,000/$27,500 VIOLATION AND MAXIMUM.

33 U.S.C. 1319(g)(2)(B) ........ CLEAN WATER ACT VIOLATION/ADMINISTRATIVE PENALTY PER $11,000/$137,500 VIOLATION AND MAXIMUM.

33 U.S.C. 1321(b)(6)(B)(1) .... CLEAN WATER ACT VIOLATION/ADMIN PENALTY OF SEC $11,000/$27,500 3.11(b)(3)&(j) PER VIOLATION AND MAXIMUM.

33 U.S.C. 1321(b)(6)(B)(ii) .... CLEAN WATER ACT VIOLATION/ADMIN PENALTY OF SEC $11,000/$137,500 311(b)(3)&(j) PER VIOLATION AND MAXIMUM.

33 U.S.C. 1321(b)(7)(A) ........ CLEAN WATER ACT VIOLATION/CIVIL JUDICIAL PENALTY OF SEC $27,500 or $1,100 311(b)(3)—PER VIOLATION PER DAY OR PER BARREL OR UNIT. per barrel or unit

33 U.S.C. 1321(b)(7)(B) ........ CLEAN WATER ACT VIOLATION/CIVIL JUDICIAL PENALTY OF SEC $27,500 311(c)&(e)(1)(B).

33 U.S.C. 1321(b)(7)(C) ........ CLEAN WATER ACT VIOLATION/CIVIL JUDICIAL PENALTY OF SEC $27,500 311(j).

33 U.S.C. 1321(b)(7)(D) ........ CLEAN WATER ACT VIOLATION/MINIMUM CIVIL JUDICIAL PENALTY | S110,000 or $3,300 OF SEC 3.11(b)(3)—PER VIOLATION OR PER BARREL/UNIT. per barrel or unit

33 U.S.C. 1414b(d) ............... MARINE PROTECTION, RESEARCH & SANCTUARIES ACT VIOL SEC 104b(d).

33 U.S.C. 1415(a) ................. MARINE PROTECTION RESEARCH AND SANCTUARIES ACT VIOLA- || $55,000/$137,500 TIONS-FIRST & SUBSEQUENT VOLATIONS.

42 U.S.C. 300g–3(b) ............. SAFE DRINKING WATER ACT/CIVIL JUDICIAL PENALTY OF SEC $27,500 1414(b).

42 U.S.C. 300g—3(c) ............. SAFE DRINKING WATER ACT/CIVIL JUDICIAL PENALTY OF SEC $27,500 1414(c).

42 U.S.C. 300g—3(g)(3)(A) .... SAFE DRINKING WATER ACTICIVIL JUDICIAL PENALTY OF SEC $27,500 1414(g)(3)(a).

42 U.S.C. 300g-3(g)(3)(B) .... SAFE DRINKING WATER ACT/MAXIMUM ADMINISTRATIVE PEN- || $5,000/$25,000 ALTIES PER SEC 1414(g)(3)(B).

42 U.S.C. 300g—3(g)(3)(C) .... SAFE DRINKING WATER ACT/THRESHOLD REQUIRING CIVIL JUD|- || $25,000 CIAL ACTION PER SEC 1414(g)(3)(C).

42 U.S.C. 300h—2(b)(1)......... SDWA/CIVIL JUDICAL PENALTY/VIOLATIONS OF REQS—UNDER- || $27,500 GROUND INJECTION CONTROL (UIC).

42 U.S.C. 300h–2(c)(1) ......... SDWA/CIVIL ADMIN PENALTY/VIOLATIONS OF UIC REOS—PER $11,000/$137,500. VIOLATION AND MAXIMUM.

42 U.S.C. 300h–2(c)(2) ......... SDWA/CIVIL ADMIN PENALTY/VIOLATIONS OF UIC REQS—PER $5,500/$137,500 VIOLATION AND MAXIMUM.

42 U.S.C. 300h–3(c)(1) ......... SDWA/VIOLATION/OPERATION OF NEW UNDERGROUND INJEC- || $5,500 TION WELL.

42 U.S.C. 300h–3(c)(2) ......... SDWAWILLFUL VIOLATION/OPERATION OF NEW UNDERGROUND $11,000 |NJECTION WELL

42 U.S.C. 300i(b) .................. SDWA/FAILURE TO COMPLY WITH IMMINENT AND SUBSTANTIAL $15,000. ENDANGERMENT ORDER.

42 U.S.C. 300-1(c) .............. SDWA/ATTEMPTING TO OR TAMPERING WITH PUBLIC WATER $22,000/$55,000 SYSTEM/CIVIL JUDICIAL PENALTY.

42 U.S.C. 300j(e)(2) .............. SDWA/FAILURE TO COMPLY WIORDER ISSUED UNDER SEC. $2,750 1441(c)(1).

42 U.S.C. 300–4(C) .............. SDWA/REFUSAL TO COMPLY WITH REOS. OF SEC. 1445(a) OR (b) $27,500

42 U.S.C. 300–6(b)(2) .......... SDWA/FAILURE TO COMPLY WITH ADMIN. ORDER ISSUED TO || $25,000 FEDERAL FACILITY.

42 U.S.C. 300-23(d) ............ SDWA/VIOLATIONS/SECTION 1463(b)—FIRST OFFENSE/REPEAT || $5,500/$55,000 OFFENSE.

42 U.S.C. 4852d(b)(5) ........... RESIDENTIAL LEAD-BASED PAINT HAZARD REDUCTION ACT OF | $11,000 1992, SEC 1018–CIVIL PENALTY.

42 U.S.C. 4910(a)(2) ............. NOISE CONTROL ACT OF 1972–CIVIL PENALTY ................................ $11,000

42 U.S.C. 6928(a)(3) ............. RESOURCE CONSERVATION & RECOVERY ACT/VIOLATION SUB- $27,500 TITLE CASSESSED PER ORDER.

42 U.S.C. 6928(c) ................. RES. CONS. & REC. ACT/CONTINUED NONCOMPLIANCE OF COM- || $27,500

PLIANCE ORDER.

« PreviousContinue »