Consolidated Rules of Practice Governing the Administrative Assessment of Civil Penalties, Issuance of Compliance or Corrective Action Orders, and the Revocation, Termination or Suspension of Permits

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 22 and 59

[FRL-5966-7]

RIN 2020-AA13

Consolidated Rules of Practice Governing the Administrative

Assessment of Civil Penalties, Issuance of Compliance or Corrective

Action Orders, and the Revocation, Termination or Suspension of Permits

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is today proposing technical amendments and other

refinements to the Consolidated Rules of Practice Governing the

Administrative Assessment of Civil Penalties, 40 CFR part 22, including

the addition of new rules for administrative proceedings not governed

by section 554 of the Administrative Procedure Act.

DATES: Comments must be submitted on or before April 27, 1998.

ADDRESSES: Comments should be submitted in writing to Enforcement and

Compliance Docket and Information Center (2201A), Office of Enforcement

and Compliance Assurance, Office of Regulatory Enforcement, U.S.

Environmental Protection Agency, 401 M Street, SW, Washington, D.C.

20460 or via electronic mail to [email protected]. Comments

submitted on paper must be submitted in triplicate.

EPA will make available, both in paper form and on the internet, a

record of comments received in response to this document. The official

docket will be a paper record of all comments received in writing or by

electronic mail. This record may be reviewed at room 4033 of the Ariel

Rios Federal Building, 1200 Pennsylvania Avenue, N.W., Washington, DC

20044. Persons interested in reviewing the comments must make advance

arrangements to do so by calling 202-564-2614. A reasonable fee may be

charged by EPA for copying docket materials. The Agency also will

publish a copy of the official docket on the Office of Enforcement and

Compliance Assurance's internet home page at

http:\\www.epa.gov\oeca\r*egstat2.html. The Agency intends that this

internet docket should duplicate the official paper record, however, if

technological or resource limitations make it infeasible to include one

or more comments on the internet docket, the internet docket will

identify those comments available only in the official paper docket.

FOR FURTHER INFORMATION CONTACT: Scott Garrison (202-564-4047), Office

Enforcement and Compliance Assurance, Office of Regulatory Enforcement

(2248A), U.S. Environmental Protection Agency, Washington, D.C. 20460.

SUPPLEMENTARY INFORMATION:

I. Background

The Consolidated Rules of Practice (``CROP'') at 40 CFR part 22

were promulgated in 1980 to establish uniform procedural rules for

administrative enforcement proceedings required under various

environmental statutes to be held on the record after opportunity for a

hearing in accordance with section 554 of the Administrative Procedure

Act, 5 U.S.C. 551 et seq. (``APA''). Aside from the addition of

statute-specific amendments to subpart H (see e.g., Rules of Practice

Governing the Administrative Assessment of Class II Civil Penalties

Under the Clean Water Act, 55 FR 23838 (1990), codified at 40 CFR

2.38), the CROP have not been substantially revised since their initial

promulgation. Today's proposal would correct a number of

inconsistencies and ambiguities in the procedures which have become

apparent through experience with the CROP. In addition, the Agency

proposes to update and modernize the procedures to make them more

``user-friendly'' and to aid in streamlining administrative practice.

On July 1, 1991, EPA proposed a separate set of procedures for the

administrative assessment of penalties where a hearing on the record

under APA section 554 is not required, commonly referred to as ``non-

APA'' enforcement actions. See 56 FR 29996. These procedures, to be

codified at 40 CFR part 28, were authorized by Congress in various

statutes. Id. The proposed ``part 28'' procedures were designed to

provide a quick and understandable process by which to resolve non-APA

enforcement actions, while protecting the basic due process rights of a

respondent. Id. at 29997 (discussion of constitutional due process

requirements as established in Matthews v. Eldridge, 424 U.S. 319

(1976)). EPA subsequently issued guidance in September, 1991, to the

EPA Regional Offices calling for use of the proposed part 28 procedures

for Class I penalty actions under section 309(g) of the Clean Water Act

(``CWA'') and, several months later, for Class I penalty actions under

section 311(b)(6) of the CWA. Although use of these procedures did

result in quicker resolution of administrative penalty cases than had

occurred before, Agency experience revealed that the majority of EPA

Regions were following, with some modification, the CROP procedures for

non-APA enforcement actions, in large measure out of familiarity with

the CROP. A side-by-side comparison of the proposed part 28 with the

CROP reveals many similar sections and procedures.

The proposed part 28 introduced a number of useful concepts to

EPA's administrative practice, such as limitations on written legal

arguments or statements (Sec. 28.8), a more clearly described commenter

role for certain CWA and Safe Drinking Water Act (``SDWA'') cases,

expansion of information exchange and restrictions on formal discovery

(Sec. 28.24), a more structured default procedure (Sec. 28.21), and

simplified and expedited settlement procedures (Sec. 28.22). Many of

these concepts are the basis for today's proposed revisions to the APA

procedures of the CROP. See, e.g., proposed Sec. 22.18(a) ``Quick

resolution'' provisions. Given the many similarities between the CROP

and proposed part 28, as well as the Agency's long-standing goal of

enhancing administrative efficiency, the Agency believes that

maintaining two stand-alone sets of procedures for its administrative

enforcement practice which contain more similarities than differences

would be inefficient and confusing. The specific requirements

appropriate to non-APA enforcement actions can be presented effectively

and efficiently as a short subpart to the CROP. Accordingly, today's

proposal includes in subpart I modifications to the basic CROP suitable

for non-APA proceedings. EPA expects to withdraw the part 28 proposal

upon issuance of these CROP amendments as a final rule.

Similarly, the proposed revisions to the CROP would supersede and

replace the anticipated rules governing non-APA hearings on field

citations under section 113(d)(3) of the Clean Air Act (``CAA''). On

May 3, 1994, EPA published the proposed Field Citation Program to be

codified at 40 CFR 59. 59 FR 22776. EPA expects that the part 59 Field

Citation Program will be promulgated as a final rule before the

completion of this CROP rulemaking. Subpart B of part 59, ``Rules

Governing Hearings on Field Citations,'' will govern CAA section

113(d)(3) proceedings until these CROP revisions become final. EPA

expects that upon promulgation of the CROP revisions as a final rule,

subpart B of part 59 would be repealed and the revised CROP would be

used for CAA section 113(d)(3) proceedings.

[[Page 9465]]

In addition, in order to implement the SDWA Amendments of 1996, EPA

anticipates that it will soon repeal subpart J of 40 CFR part 142,

``Procedures for PWS Administrative Compliance Orders.'' Section

142.208 of that subpart stated that the CROP procedures are to apply to

administrative actions enforcing compliance orders issued under section

1414(g) of the SDWA, 42 U.S.C. 300g-3. That instruction is now part of

this proposed rulemaking, and EPA intends to use the relevant CROP

procedures proposed below as procedural guidance for SDWA section

1414(g)(3)(B) administrative enforcement actions during the interim

period before final promulgation of revisions to the CROP.

On December 11, 1996, EPA proposed to modify the procedures for

termination of National Pollutant Discharge Elimination System

(``NPDES'') permits issued under the CWA and for permits issued under

Subtitle C of the Resource Conservation and Recovery Act (``RCRA''). 61

FR 65268. EPA proposed to substitute the procedures contained in the

CROP governing revocation, termination and suspension of other EPA

permits for the existing procedures in part 124, subpart E (which cover

only termination of NPDES and RCRA Subtitle C permits). EPA proposed

two changes to the CROP to implement this proposal: (1) EPA proposed to

insert the word ``termination'' or ``terminate'' as appropriate

wherever the existing CROP refers to ``revocation or suspension'' or

``revoke or suspend'' permits; (2) EPA proposed to add a set of

supplemental rules at Sec. 22.44 to cover NPDES or RCRA permit

terminations. See 60 FR 65280 for a discussion of this proposal. The

comment period on this proposal closed on February 10, 1997. For the

convenience of the public, today's proposal reflects all the changes to

the CROP EPA has previously proposed, with some minor editorial

changes. EPA is not, however, soliciting new comments on changes

previously proposed, nor will EPA respond to any such comments in the

final rule to this proposal. Any comments on the proposal to terminate

NPDES or RCRA permits using the CROP procedures should be directed to

the docket for that proposal, referenced in the December 11, 1996

document. It should be noted, however, that such comments will be

considered late-filed.

II. Proposed Revisions

A. Revisions to Part 22

1. Statement of authority

The ``Authority'' section is reorganized in numeric order, and

updated to include additional authorities. To the extent that these

additional authorities change the scope of the CROP, they are discussed

below in regard to Sec. 22.01(a).

2. Scope of the Rules

Section 22.01(a): The phrase ``Consolidated Rules of Practice''

would be substituted for other phrases such as ``these rules of

practice,'' ``these rules,'' and ``this part,'' for consistency here in

paragraph (a) and throughout the CROP. The first sentence would also be

revised to clarify that these procedures apply only to administrative

adjudications. Substantive changes to the scope of the CROP are

discussed in detail below.

The scope section will mandate that the Agency shall use the CROP

procedures for all administrative adjudicatory proceedings listed

therein. Although the Agency does not commit itself to apply these

procedures to administrative actions other than those listed in the

scope, where it has discretion to do so, the Agency may elect to

informally apply these procedures for other adjudications not listed.

The Agency has, however, attempted to make the proposed scope a

complete list of all the proceedings likely to be commenced subject to

the CROP. Note, too, that the CROP only creates a set of procedures for

use in the exercise of some of EPA's statutory enforcement authorities,

and neither extends nor limits the substantive jurisdiction of the

Agency. Many provisions of the CROP reflect policy choices by the

Agency to exercise less than the full scope of its statutory and

constitutional authority (e.g., extending to 30 days the deadline for

all answers (Sec. 22.15), procedures for issuance of default orders

(Sec. 22.17)). As such, these limitations on the Agency's authority

apply only in proceedings under the CROP, and the Agency may modify

these requirements in future rulemakings.

Section 22.01(a)(2): The CROP would be expanded to include field

citation proceedings under 42 U.S.C. 7413(d)(3), as discussed above.

Part 22 currently applies to penalty proceedings under section

7413(d)(1), and the proposed revision would expand the scope to include

all of section 7413(d).

Section 22.01(a)(3): A reference to 33 U.S.C. 1415(f) inadvertently

omitted from the 1980 CROP is added for clarity and consistency.

Section 22.01(a)(4): This paragraph is revised to clarify which

sections of the Solid Waste Disposal Act (SWDA) authorize the various

proceedings. The scope is expanded by inclusion of proceedings to

suspend or revoke a permit under sections 3005(d) and 3008(h) (42

U.S.C. 6925(d) and 6928(h)) as proposed in the Agency's December 11,

1996, proposal noted above (60 FR 65280). The scope is also expanded to

include assessment of administrative civil penalties under 42 U.S.C.

6961 within the CROP. Reference to 42 U.S.C. 6992d is deleted, because

the demonstration program for medical wastes and its accompanying

regulations (40 CFR part 259) expired on July 22, 1991. The scope is

revised to clarify that the CROP applies to the issuance of compliance

orders under section 3008(a) or section 9006(a) of the SWDA (42 U.S.C.

6928(a) or 6991e(a)).

Additionally, the paragraph would be revised to specify that the

CROP is applicable to both the assessment of civil penalties and the

issuance of compliance orders pursuant to section 4005(c)(2) of the

SWDA (42 U.S.C. 6945(c)(2)). That section, enacted as part of the 1984

Hazardous and Solid Waste Amendments, authorizes EPA to enforce the

Subtitle D prohibition against open dumping in certain circumstances.

Although section 4005(c)(2) refers to the enforcement authorities

available under section 3008, the proposed revision would clarify that

the CROP would apply to these actions.

The procedures governing most SWDA corrective action orders appear

at 40 CFR part 24, but under certain circumstances the CROP may apply.

A new subparagraph (B) would clarify that the CROP generally does not

apply to SDWA section 3008(h) corrective action orders, but only to

those that are part of a proceeding commenced under the CROP for claims

under section 3008(a), to suspend or revoke authorization to operate

under section 3005(e), or for penalties for non-compliance with a

section 3008(h) order. A new subparagraph (C) would clarify that the

CROP procedures generally do not apply to corrective action orders

authorized under SWDA section 9003(h)(4) (42 U.S.C. 6991b(h)(4)),

except where the Agency includes such orders in a complaint seeking

civil penalties pursuant to section 9006. All other corrective action

orders are subject to the part 24 procedures.

Section 22.01(a)(5): A reference would be added to include

proceedings to assess civil administrative penalties pursuant to

section 207 of the Asbestos

[[Page 9466]]

Hazard Emergency Response Act (``AHERA''), codified as Title II of the

Toxic Substance Control Act, 15 U.S.C. 2647. The CROP was amended June

5, 1989, to add Sec. 22.47, a supplemental rule governing

administrative penalty proceedings under AHERA section 207, however,

there was no corresponding amendment to Sec. 22.01(a). 54 FR 24112. The

proposed revision would make clear that such proceedings are governed

by the CROP.

Section 22.01(a)(6): Section 4301(b) of the Oil Pollution Act of

1990 amended section 311(b)(6) of the CWA to allow administrative

penalty proceedings. This proposed rule would expand the scope of the

CROP to include proceedings to assess administrative civil penalties

under section 311(b)(6). The limitation to Class II proceedings would

be dropped from the scope, requiring use of the CROP for non-APA Class

I proceedings as well as Class II penalty proceedings, under both

sections 309(g) and 311(b)(6) of the CWA. Special provisions regarding

the non-APA Class I proceedings would appear in subpart I of the CROP.

The proposed revision of Sec. 22.01(a)(6) also reflects the addition of

proceedings to terminate a permit issued under section 402(a) of the

CWA, as proposed in the December 11, 1996 FR notice discussed above. 60

FR 65,268. Pursuant to that proposed rule, the existing part 124

procedures for terminating permits would be supplanted by the CROP.

Section 22.01(a)(9): A reference would be added to include

proceedings for the assessment of civil administrative penalties under

42 U.S.C. 1423(c) and 1447(b) within the scope of the CROP. A further

reference would be added regarding the issuance of any order requiring

both compliance and the assessment of a civil penalty under 42 U.S.C.

1423(c). These references reflect the amendments to the Safe Drinking

Water Act, Public Law 104-182, 110 Stat. 1613 (1996), which affect

administrative penalty assessment against public water systems and

federal facilities.

Section 22.01(a)(10): A reference would be added to include

proceedings for the assessment of civil penalties or the issuance of

compliance orders under section 5 of the Mercury-Containing and

Rechargeable Battery Management Act (42 U.S.C. 14304). The Mercury-

Containing and Rechargeable Battery Management Act would phase out the

use of mercury in batteries and provide for the efficient and cost-

effective collection and recycling or proper disposal of batteries

regulated under the Act. Section 5 of the Act authorizes administrative

enforcement for violations of the Act, except for section 104 of the

Act, which is enforceable under the Solid Waste Disposal Act.

Section 22.01 (b): A reference would be added to include the new

subpart I, and to provide that subpart H or I provisions will supersede

any conflicting provisions in subparts A--G.

Section 22.01(c): This provision would be amended to empower the

Environmental Appeals Board the authority to resolve procedural matters

not covered in the CROP because it has been designated by the

Administrator to perform this function.

3. Definitions

Section 22.03(a): Surplus language would be deleted from the

definition of ``Act''. No substantive change is intended.

A definition of ``Business confidentiality claim'' would be added

in order to specifically link the treatment of confidential business

information (``CBI'') in CROP proceedings to the general provisions for

CBI in 40 CFR part 2, subpart B. This amendment will clarify that the

same protections that apply to use of CBI in other Agency actions will

apply in proceedings under the CROP.

A definition of ``Clerk of the Board'' would be added to identify

the Clerk of the Environmental Appeals Board, who should receive

service of pleadings and documents in matters pending before the Board.

A definition of ``Commenter'' would be being added for purposes of

administrative civil penalty actions under Section 309(g) of the Clean

Water Act, Class II administrative civil penalty actions under Section

311(b)(6) of the Clean Water Act, and for actions under Section 1423(c)

of the Safe Drinking Water Act, in order to provide commenter

procedures required by those Acts.

The definition of ``Complainant'' would be revised to add

references to the provisions covering commencement of a proceeding and

the content and amendment of a complaint.

The definition of ``Complaint'' would be deleted, as it is fully

covered by the operative provisions of the rule at Sec. 22.14.

The definition of ``Consent Agreement'' would be deleted, as it is

fully covered by the operative provisions of the rule at

Sec. 22.18(b)(2).

The address of the Environmental Appeals Board would be deleted

from its definition, as redundant with Sec. 22.30(a).

The definition of ``Final Order'' would be clarified by

specifically including Consent Orders issued pursuant to Sec. 22.18.

The definition of ``Hearing Clerk'' would be amended to update the

mailing address.

The definition of ``Initial Decision'' would be expanded to include

references to the operative sections of the CROP at Secs. 22.17(c),

22.20(b) and 22.27, thereby distinguishing initial decisions from other

decisions rendered by a Presiding Officer.

The definition of ``permit'' would be expanded to include permits

issued under Section 402(a) of the Clean Water Act and Section 3005(d)

of the Resource Conservation and Recovery Act, consistent with the

December 11, 1996, proposed rule (60 FR 65,268). As used in the CROP,

the term ``permit'' would also apply to authority to operate under

interim status pursuant to section 3005(e) of the Resource Conservation

and Recovery Act.

The definition of ``Presiding Officer'' would be clarified and

amended to provide that, until an answer is filed, the Regional

Judicial Officer serves as Presiding Officer. This change is one of

form only, as Sec. 22.16(c) of the existing Rule allows the Regional

Administrator or a delegate to rule on motions until an answer is

filed, and in practice this authority is delegated to Regional Judicial

Officers. The definition also would be amended to allow Regional

Judicial Officers to preside in proceedings under subpart.

The definition of ``Regional Administrator'' would be revised for

clarity and to eliminate unnecessary language. EPA would delete from

the existing rule the provision defining the term ``Regional

Administrator'' to refer to the Environmental Appeals Board in cases

commenced at EPA Headquarters. In the interests of clarity, the

proposed revisions would specifically refer to the Regional

Administrator where the CROP assigns responsibilities to the Regional

Administrator, and to the EAB wherever the CROP assigns

responsibilities to the EAB. Only one responsibility assigned to the

Regional Administrators under the CROP would not also be assigned to

the EAB for cases commenced at EPA Headquarters, which is the

responsibility of designating Regional Judicial Officers. EPA does not

anticipate any need to provide for a Regional Judicial Officer to

preside in non-APA proceedings commenced at EPA Headquarters. EPA

anticipates that it will use non-APA procedures primarily for cases

expected to be routine and raising few, if any, new issues of law. EPA

expects to rely on Administrative Law Judges to act as Presiding

Officers in all cases initiated

[[Page 9467]]

at EPA Headquarters, because current Agency plans do not call for EPA

Headquarters to initiate significant numbers of routine cases or cases

which raise no significant new issues of law. For the few instances

where Headquarters-based Complainants seek to file non-APA cases, such

cases could be filed with a Regional Hearing Clerk and adjudicated by

the appropriate Regional Judicial Officer.

The definition of ``Regional Hearing Clerk'' would be clarified as

it pertains to cases initiated at EPA Headquarters. The Regional Office

addresses now appear in Appendix A.

Redundant language would be removed from the definition of

``Regional Judicial Officer''.

4. Roles of the Environmental Appeals Board, Regional Judicial

Officer and Presiding Officer; disqualification, withdrawal, and

reassignment.

Section 22.04(a): The heading would be amended, and the entire

section would be revised to clarify the roles of the Environmental

Appeals Board, Regional Judicial Officers, and Presiding Officers in

administrative enforcement proceedings under the CROP. The proposed

changes better describe current practice. Paragraph (a) would be

amended to clarify that the Administrator has delegated to the

Environmental Appeals Board the authority to rule on appeals, and that

in all cases except those in which the Environmental Appeals Board has

referred a matter to the Administrator, appeals and motions must be

directed to the Environmental Appeals Board to be considered. The word

``direction,'' an uncorrected typographical error in the existing CROP,

would be amended to ``discretion.''

Section 22.04(b): The section would be amended to clarify the role

and authority of the Regional Judicial Officer, to whom the authority

to act in a given proceeding is delegated by the Regional

Administrator. This authority includes acting as Presiding Officer in

non-APA administrative enforcement cases, acting as Presiding Officer

in APA cases prior to the filing of respondent's answer and request for

a hearing, and approving settlements of proceedings under the CROP.

EPA proposes to delete the prohibition that Regional Judicial

Officers ``shall not be employed by the Region's Enforcement Division

or by the Regional Division directly associated with the type of

violation at issue in the proceeding'', because Regional

reorganizations have made this language obsolete. EPA's Regional

Offices currently have a variety of different organizational

structures, and these organizational structures may continue to evolve.

Accordingly, EPA proposes to substitute a more generally applicable

requirement which makes no mention of organizational structures: The

Regional Judicial Officer shall not ``have any interest in the outcome

of'' any case in which he or she serves as Regional Judicial Officer.

EPA interprets this clause broadly, as prohibiting anyone who has any

financial interest, personal interest, or career interest in the

outcome of the action from serving as Regional Judicial Officer. EPA

believes this should provide the Regional Judicial Officers sufficient

independence to conduct a fair hearing, because in EPA's experience no

Regional Judicial Officer has been subject to improper influence by

Agency officials. The limitation placed on the Regional Judicial

Officer regarding any ``factually related hearing'' also would be

deleted, because the Agency believes it improper to disqualify a

Regional Judicial Officer merely because that person has participated

in a hearing where similar facts were at issue.

EPA intends that the Regional Judicial Officers should be, and are

in fact, fully independent of improper influence. Nevertheless, EPA

requests suggestions as how this independence should be described in

Sec. 22.04(b). Commenters should be cognizant of the fact that the EPA

employees who serve as Regional Judicial Officers will have duties

other than acting as Regional Judicial Officer, because workloads do

not generally warrant exclusive assignments to that position. One

possible alternative to the language proposed would be a mandate that a

Regional Judicial Officer ``shall not be directly supervised by any

person who directly supervises the prosecution of the case.'' Such a

requirement would provide a more definite standard than the standard

that is proposed, however it would be at odds with Agency's reinvention

efforts to remove layers of management, minimize institutional

barriers, promote cross-media training and promote multimedia

enforcement.

Section 22.04(c): Surplus language would be deleted. No substantive

change is intended by this revision.

Section 22.04(d): Several clarifications are made by deleting

surplus and confusing language. The proposed rule would require parties

to first request that a Regional Administrator, a member of the

Environmental Appeals Board, or the Presiding Officer disqualify

himself or herself before requesting that a higher Agency official

disqualify that person. Although requests for disqualification are very

rare, the proposed rule would reduce unnecessary delay and burdens by

requiring that requests for disqualification first be made directly to

the person whose disqualification is sought. If the request is denied,

then the reviewing official would have more information upon which to

base a ruling than if the initial request were made directly to the

reviewing official. The proposed rule would also authorize the

Environmental Appeals Board, rather than the Administrator, to review

requests for disqualification of Regional Administrators and Presiding

Officers. If a motion to disqualify a member of the Environmental

Appeals Board is denied, a party may appeal that ruling to the

Administrator.

EPA also requests comment on another possible change in the

disqualification procedures which is not included in the text of the

proposed rule published today. Under the proposed rule, both the

interlocutory appeal procedures of Sec. 22.29 and the procedures for

appeal of an initial decision at Sec. 22.30 would apply where a

Presiding Officer denies a motion for disqualification. EPA is

considering a prohibition on interlocutory appeals of motions for

disqualification, in order to avoid unnecessary delay. After issuance

of an initial decision, the parties would still have the right of

appealing any adverse ruling or order of the Presiding Officer,

including a refusal to disqualify himself or herself, pursuant to

Sec. 22.30. This change would make the CROP consistent with Federal

court practice. See 28 U.S.C. 1292 (decisions regarding

disqualification not included in the interlocutory review authority of

the Courts of Appeals), U.S. v. Gregory, 656 F.2d 1132, 1136 (5th Cir.

1981) (interlocutory review of disqualification decision not

available), Dubnoff v. Goldstein, 385 F.2d 717, 721 (2d Cir. 1967)(``A

determination of a District Judge not to disqualify himself is

ordinarily reviewable only on appeal from a final decision on the

[underlying cause of action].''). The Agency requests comment on this

potential revision of the CROP.

5. Filing, Service, and Form of Pleadings and Documents; Business

Confidentiality Claims

Section 22.05: The heading would be revised to include business

confidentiality claims.

Section 22.05(a): The paragraph would be revised to clarify that

the original and a copy of each pleading or other document intended to

be part of the record of the proceeding shall be filed with the

Regional Hearing Clerk or Clerk of the Environmental Appeals Board.

Providing both an original and a copy makes it easier for the hearing

[[Page 9468]]

clerks to maintain both a record file and a public viewing file, in

order to assure public access without risk of altering the official

record. The paragraph also would be revised to clarify when a pleading

or document is ``filed.'' Requirements regarding service, as distinct

from filing, are deleted from Sec. 22.05(a)(2) and moved to

Sec. 22.05(b); the remaining sentence concerning certificates of

service would be renumbered as Sec. 22.05(a)(3). The existing

Sec. 22.05(a)(3) would be renumbered Sec. 22.05(a)(2), and surplus

language deleted. The Agency solicits comments on whether electronic

filing and service should be allowed, and if so, under what conditions.

Section 22.05(b): The paragraph would be amended to consolidate and

clarify service requirements, and to require a copy of each pleading or

document to be served on the Presiding Officer. In paragraph (b)(1),

the provisions regarding service of the complaint are changed to

clarify who must be served when serving a natural person, a domestic or

foreign corporation, a partnership or unincorporated association, an

officer or agency of the United States, a state or local unit of

government or a state or local officer, agency, department, corporation

or other instrumentality. The proposed rule allows service of the

complaint by any reliable commercial delivery service that provides

written verification of delivery.

Paragraph (b)(2) would be amended to allow service of all pleadings

and documents other than the complaint by any reliable commercial

delivery service. The provision regarding mail would be revised to

reflect the fact that both certified mail and return receipt requested

are varieties of first class mail. The phrase ``pleadings and

documents'' is used here and throughout the proposed rule to include

all filings by the parties. The heading would be amended to reflect the

change.

Section 22.05(c): Paragraph (c)(2) would be changed to require more

information on the first page of every pleading and to require tables

of contents and tables of authorities for all legal briefs and

memoranda greater than twenty pages in length (excluding attachments)

to simplify processing and review. Grammatical changes and

clarifications are made in paragraphs (c)(3) and (4). In paragraph

(c)(5), the provision which allowed Hearing Clerks to determine the

adequacy of documents would be deleted, leaving that authority solely

with Presiding Officers or the Environmental Appeals Board.

Section 22.05(d): A new paragraph would be added to specify the

treatment of information claimed as Confidential Business Information

(``CBI'') in documents filed in CROP proceedings, and to link that

treatment with the CBI rules of 40 CFR part 2, subpart B. The purpose

is to facilitate the use of CBI as evidence while appropriately

preserving the confidentiality of the information. Paragraph (d)(1)

provides that any business confidentiality claim shall be made in the

manner prescribed by 40 CFR 2.203(b). A person who files a document

with a Regional Hearing Clerk without making such a claim places that

document in the public record, where it is available to the public for

inspection and copying pursuant to Sec. 22.09. After a document has

been placed in the public record, a subsequent claim of confidentiality

will not be effective. This clarifies the obligations of the claimant

and makes clear which procedures to follow, as well as the consequences

for failure to follow these procedures.

Paragraph (d)(2) describes in more detail how pleadings or

documents containing information claimed confidential are to be filed

with the Regional Hearing Clerk, and the contents of such documents, in

order to assure that such documents are properly filed and the

information within such documents protected. The requirement that

parties file two versions of pleadings or documents, one containing the

information claimed confidential and a second redacted version, does

not preclude a party from filing a single document that merely

references, without disclosing, confidential information filed in

earlier documents.

Paragraph (d)(3) describes the procedures for service of pleadings

of documents containing claimed-confidential information on the

Presiding Officer, complainant, parties, amici, or representatives

thereof authorized to receive confidential information, and makes clear

that only a redacted version of any pleading or document may be served

on a party, amici, or other representative thereof not authorized to

receive the confidential information. Paragraph (d)(4) provides that

only the redacted version of a pleading or document with claimed-

confidential information will become part of the public record, and

further provides that an EPA officer or employee may disclose

information claimed confidential only as provided by 40 CFR part 2.

6. Filing and Service of Rulings, Orders and Decisions

Section 22.06: The requirements regarding service of rulings,

orders and decisions have been changed to allow the more flexible

service of these documents by first class mail or any reliable

commercial delivery service. References to the Regional Judicial

Officer are deleted as surplusage.

7. Computation and Extension of Time

Section 22.07: In paragraph (a), ``holidays'' would be clarified to

mean federal holidays. Paragraph (b) would be revised to require that

any motion for an extension of time be filed sufficiently in advance of

the due date so as to allow other parties the opportunity to respond

and to allow the Presiding Officer or the EAB reasonable opportunity to

issue an order. The reference to ``the Regional Administrator'' would

be deleted as surplusage. In paragraph (c), the ``mail box'' rule for

service would be expanded to encompass the other reliable commercial

delivery services authorized in Sec. 22.05(b). Under the proposed

revision, as under the existing CROP, it is implicit that personal

service is complete upon personal service, without need for a signed

receipt.

8. Ex Parte Discussion of Proceeding

Section 22.08: New language would be included to explicitly allow a

decision maker who has formally recused himself from all adjudicatory

functions to engage in ex parte functions. For purposes of this

provision, the Agency would consider the approval of consent agreements

and issuance of consent orders to be adjudicatory functions.

9. Examination of Documents Filed

Section 22.09: Extraneous language would be deleted and the

reference to waiver of costs for duplication of documents would be

clarified.

10. Intervention and Amicus Curiae

Section 22.11: The section heading would be amended to include

amicus curiae motions. Paragraph (a)(1) would be amended to more

specifically describe the process for intervening, and would make the

standard for intervention equivalent to the standard used in the

Federal courts, Rule 24(a)(2) of the Federal Rules of Civil Procedure.

The final sentence in paragraph (c) of the existing CROP (``The

intervenor shall become a full party to the proceeding upon the

granting of leave to intervene.'') is intentionally omitted. This would

grant the Presiding Officer the discretion to allow an intervenor to

become a party as to part, but not all, of a proceeding. An additional

five days is given to file a response to a motion to intervene, for

consistency with proposed changes to Sec. 22.16. The

[[Page 9469]]

changes to paragraph (a) permit the deletion of paragraphs (c) and (d).

Paragraph (b) describes the procedures for motion for leave to file an

amicus brief, and fifteen days is given to file a response to an amicus

brief. EPA requests comment as to the appropriateness of these

intervention provisions.

11. Consolidation and Severance

Section 22.12: The phrase ``by motion or sua sponte'' would be

deleted as surplusage, and perhaps confusing to persons not trained in

the law. No substantive change is intended by this revision. Paragraph

(a) would be amended to clarify that proceedings brought pursuant to

the non-APA procedures of subpart I may be consolidated with an action

brought under the APA procedures. This paragraph prohibits the use of

the non-APA procedures for hearing any action which is the result of a

consolidation of an APA proceeding and non-APA proceeding. Under these

circumstances, only the APA procedures of the CROP (subpart A--H) are

appropriate.

The Agency considered, but rejected as unnecessary, expressly

prohibiting under Sec. 22.12 the consolidation of actions if such

consolidation could result in the total penalty exceeding any

applicable cap on penalty amounts. The existing language is sufficient

to prevent consolidation in such circumstances because such a result

would ``adversely affect the rights of parties engaged in otherwise

separate proceedings.''

12. Commencement of a Proceeding

Section 22.13: The heading would be amended, and the section

revised, to clarify how an administrative enforcement proceeding is

commenced. For cases where pre-commencement negotiations result in

settlement of a cause of action, paragraph (b) would provide for the

simultaneous commencement and conclusion of a case upon the issuance of

a consent order (provided that, in accordance with Sec. 22.18(b)(2),

the consent agreement contains that information required in a complaint

set forth in Sec. 22.14(a)(1)-(3)). Negotiations with alleged violators

prior to the formal filing of a complaint may in some cases lead to

more efficient and expeditious resolution of cases. See, e.g.,

Executive Order No. 12778 on Civil Justice Reform (56 FR 55195, October

25, 1991). Where such negotiations are productive, the filing of a

consent agreement and consent order would be sufficient to commence a

case, and requiring a separate filing of a complaint would merely waste

paper. In cases subject to the Clean Water Act or Safe Drinking Water

Act public comment provisions, this streamlined approach would not

permitted. The original language of this section would be deleted as

duplicative of the statutory authorizations to commence proceedings.

13. Complaint

Section 22.14: EPA proposes to consolidate paragraphs (a) and (b)

of the existing CROP into a single paragraph governing the content of

all complaints for assessment of civil penalties, for revocation,

termination or suspension of permits, and for compliance and corrective

action orders. As used here and in Secs. 22.17 and 22.27, ``compliance

or corrective action order'' includes orders requiring immediate

compliance or corrective action, and orders establishing schedules for

compliance or corrective action within a specified period of time.

Paragraph (a)(4) would be amended to present in a single paragraph

the content requirements for all complaints, whether they seek

penalties, compliance or corrective action orders, or permit actions.

New language would expressly permit the filing of a complaint without

specifying in the complaint the precise penalty sought, as an

alternative to pleading a specific penalty. Where complainant elects

not to demand a specific penalty in the complaint, complainant is

nonetheless obligated to provide a brief explanation of the severity of

each violation alleged and a citation to the statutory penalty

authority applicable for each violation alleged in the

complaint.1 This notice pleading option would provide the

Agency with added flexibility in issuing a complaint under

circumstances where only the violator possesses information crucial to

the proper determination of the penalty, for example, the economic

benefit the violator derived from its noncompliance or the effect of a

penalty on its ability to remain in business. Complaints following the

notice pleading approach would give respondents in administrative

enforcement proceedings at least as much notice of their potential

liability as they would receive in most enforcement proceedings filed

in the Federal courts. Complementary changes to Secs. 22.17(b) and

22.19(a) assure that, where the Agency employs this notice pleading

approach, the Agency will specify a penalty demand in its prehearing

information exchange and in any motion for default. As is the case in

judicial enforcement proceedings, this notice pleading option is fully

compatible with the Agency's long-standing practice of working with

respondents toward a fair resolution of enforcement actions.

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\1\ For example, a citation to the statutory penalty authority

might state the following: ``For the violations alleged herein, in

accordance with 15 U.S.C. 2615(a), complainant seeks a penalty of up

to $25,000 for each day the violations continue, taking into account

the nature, circumstances, extent, and gravity of the violation,

and, with respect to the violator, ability to pay, effect on ability

to continue to do business, any history of prior such violations,

the degree of culpability, and other matters as justice may

require.''

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Paragraph 22.14(a)(5) would combine the right-to-hearing provisions

presently in Sec. 22.14 (a)(6) and (b)(6), as well as new language to

accommodate hearings on the appropriateness of proposed compliance or

corrective action orders. The sentence requiring a copy of the CROP to

accompany each complaint served would be deleted and placed in a

separate Sec. 22.14(b). The requirement of Sec. 22.14(a)(5) in the

existing CROP would be moved to Sec. 22.14(a)(4)(i). Paragraph (a)(6)

would require the complainant to specify in the complaint whether the

non-APA procedures in subpart I shall apply to the proceeding. If a

complaint does not contain an explicit statement that subpart I

applies, the ensuing proceeding shall be conducted in conformance with

section 554 of the APA.

The original paragraph (b) would be merged into the new paragraph

(a). The revised paragraph (b) would contain the requirement, currently

in Sec. 22.14 (a)(6) and (b)(6), that a copy of the CROP accompany each

complaint.

The text originally in paragraph (c) would be deleted, and

subsequent provisions renumbered so that the text presently in

Sec. 22.14(d) would appear in 22.14(c), with minor changes. The

existing provision would be deleted to avoid the possibility of

conflict with the notice pleading option proposed under

Sec. 22.14(a)(4)(ii). The Agency's proposed deletion of this provision

does not signal any general intent to abandon applicable penalty

pleading policies. The Agency's penalty authority remains subject to

any statutory penalty criteria, regardless of changes to the CROP, so

deletion of the existing paragraph (c) should have no substantive

effect on the penalties that would be assessed.

Paragraph (d) would contain the provision presently in paragraph

(e), with minor revisions. The Agency considered, but is not proposing,

language specifically allowing the withdrawal of a complaint without

prejudice, because such language is not necessary. The existing

language of this section does not establish a specific standard that

the Presiding Officer must apply when considering a motion to withdraw

a complaint without

[[Page 9470]]

prejudice, and so, the ``good cause'' standard generally applicable to

motions applies. The good cause standard would allow withdrawal of a

complaint without prejudice in circumstances where, for example,

information obtained after the commencement of the case indicates that

the proper penalty should exceed an applicable penalty cap, thereby

allowing the Agency to refile the case in a forum that would permit

assessment of the proper penalty.

14. Answer

Section 22.15: The requirements for filing and serving copies of an

answer are clarified in paragraph (a). Also, the time allowed for the

filing of an answer would be changed from 20 days to 30 days. RCRA, the

SDWA, and the CWA authorize 30 days to file an answer. The discrepancy

between these statutory authorities and Sec. 22.15 has caused

confusion, particularly in cases involving alleged violations of more

than one statute (multimedia cases), as to which time limitation

applies to the overall cause of action. To avoid any potential

conflict, for all causes of action, the requirement would be changed to

allow answers to be filed within 30 days of service of the complaint.

EPA proposes to add to paragraph (b) a new clause requiring that the

answer state the basis for opposing any proposed penalty, compliance or

corrective action order, or permit revocation, termination or

suspension. This requirement would not add significantly to

respondents' existing burdens, as it is both consistent with good

pleading practice and implicit in the existing rule. Paragraph (c)

would be rewritten for clarity. No substantive change is intended.

15. Motions

Section 22.16: Paragraph (a) would be revised to place explicit

limits on motion practice and to provide a common understanding that

the routine practice shall be the filing of a motion, a response and a

reply, without any further briefing. Any further responsive documents

concerning the motion would be allowed only by order of the Presiding

Officer or EAB. The present CROP is silent as to whether additional

briefing or argument is permitted after the filing of a response to a

motion. To the extent that such replies are presently allowed, there is

no limit on the time for filing a reply, nor any limit to the total

number of replies. With an endless series of replies possible, neither

the Presiding Officer nor the parties can be sure when a motion is ripe

for decision.2 The proposed amendments are intended to

establish more control over motion practice in an effort to simplify

the proceeding, and to reduce delays and litigation costs. EPA believes

that a motion-response-reply structure is both necessary and sufficient

to present the issues fully for the Presiding Officer. The proposed

rule specifically provides the movant an opportunity for a reply

because responses to motions often raise issues not addressed in the

motion itself. The proposed rule then limits the scope of the reply to

those issues raised in the response, in order to avoid giving an unfair

advantage to the movant. For those instances where this motion-

response-reply format may not be appropriate, the Presiding Officer may

order an alternative approach.

---------------------------------------------------------------------------

\2\ See, e.g., In the Matter of McLaughlin Gormley King, et al.,

Docket Nos. FIFRA 94-H-10 through 94-H-15, where a motion to dismiss

was followed by a response, a reply, a sur-reply, a supplemental

reply, and a second sur-reply.

---------------------------------------------------------------------------

The proposed rule would amend paragraph (b) to expand the time for

filing a response to a motion from 10 days to 15 days. EPA anticipates

that this change will improve the quality of the responses, better

clarifying the issues and thereby promoting judicial economy. The

proposed rule also would allow 10 days for the filing of a reply,

reflecting the fact that the movant has already had an opportunity to

anticipate possible objections to its motion and that somewhat less

time should be needed to address such new issues as might be raised in

the response. The clause pertaining to extensions of time would be

deleted as redundant with Secs. 22.07(b) and 22.04(c).

Paragraph (c) would be revised to clarify who renders decisions at

the different stages of a proceeding. The provision concerning oral

argument on motions would be deleted from this section and placed in a

separate Sec. 22.16(d), and expanded to acknowledge that Presiding

Officers, as well as the EAB, have the discretion to order oral

argument on motions.

16. Default

Section 22.17: The heading would be changed, and the entire section

reorganized, for purposes of clarity. Paragraph (a) would describe how

a party may be found in default, and the consequences of such a

finding. The provisions in the current paragraph (a) describing when

penalty monies come due, or when a permit revocation, termination or

suspension becomes effective, would be moved to paragraph (d).

New paragraph (b) addresses content requirements for motions for

default. It includes a requirement that where the motion requests the

assessment of a penalty or the imposition of other relief against a

defaulting party, the movant must specify the penalty or other relief

sought and must put into the record the legal and factual grounds for

the relief requested. This amendment accommodates the changes made in

Sec. 22.14, above, and provides for those instances in which the

complaint does not contain a specific penalty proposal.

Paragraph (c) would be revised to describe the default order

itself. It would provide that a default order shall be an initial

decision, and treated in all respects under the CROP as an initial

decision. Paragraph (c) would result in one substantive change rules

regarding default orders, in regard to the standards for granting

relief. Section 22.17(a) of the existing rule appears to require that a

default order automatically assess the penalty proposed in the

complaint, or automatically revoke or terminate the permit according to

the conditions proposed in the complaint. The proposed revision would

remove this apparent restriction on the Presiding Officers' discretion

so that they may assure that the relief ordered is supported by the

administrative record. In order to make it clear that supporting the

relief proposed in a default case should be less burdensome on the

Agency than it would be if the respondent chose to contest the case,

the language of the revised paragraph (c) would require that the

Presiding Officer grant the relief requested unless the record clearly

demonstrates that the requested relief is inconsistent with the Act.

The Agency would still be required to make a prima facie case in regard

to the appropriateness of the proposed relief, as well as in regard to

liability. The proposed change would not affect determinations of

liability in default, which would remain subject to the ``preponderance

of the evidence'' standard of Sec. 22.24.

Subsection (d) would describe the respondent's obligations once

default has been entered regarding payment of any penalty, revocation,

termination or suspension of any permit, and compliance or corrective

action requirements. The existing rule does not describe or explain

these sanctions, and the Agency believes therefore that these new

provisions provide additional clarity and information to a potentially

defaulting party, and make much more clear the consequences of default.

The existing rule requires payment of the penalty within 60 days after

the default order was issued. This conflicts with the

[[Page 9471]]

Federal Claims Collection Standards, which require payment within 30

days after the date the order was issued, unless EPA decides an

extension is appropriate. See 4 CFR 102.13(g). The proposed rule

therefore requires payment within 30 days after the date the default

order becomes final.

17. Quick Resolution; Settlement; Alternative Dispute Resolution

Section 22.18: This section would be substantially revised to

provide expedited resolution procedures, and to clarify the process and

effect of formal settlements. Paragraph (a) would provide a quick

resolution process, whereby a respondent can bring the case to a close

at any time simply by paying the amount proposed in the complaint. Any

respondent wishing to resolve an action without filing an answer need

only pay the proposed penalty within 30 days of receipt of the

complaint. In cases where an answer has been filed, the respondent may

resolve the action by paying the penalty proposed in the complaint.

This will provide respondents the option of resolving minor and

uncontested violations without engaging an attorney, much in the manner

of a parking ticket. EPA anticipates that this quick resolution

procedure may be of particular interest to small businesses, and

recognizing that small businesses may need additional time to raise

cash to pay a penalty, the provision would allow respondents 60 days

from receipt of the complaint to pay the penalty without having to file

an answer. In order to exercise this option, a respondent would need to

file a written statement within 30 days of receiving the complaint

wherein respondent promises to pay the penalty in full within 60 days

from receipt of the complaint.

The commenter rights provisions of section 309(g) and 311(b)(6) of

the Clean Water Act, and section 1423(c) of the Safe Drinking Water Act

do not permit resolution of a case until the public has had opportunity

to comment on the complaint. Commenters could provide information

indicating that the violations are more serious than indicated in the

administrative complaint. In order to give meaning to the public

comment requirements, and to allow EPA the opportunity to act upon any

such comments before resolution of a case, a respondent would not be

permitted to take advantage of the quick resolution provision in a

commenter-eligible action until ten days after the period for public

comment has closed.

Paragraph (b) would clarify the existing settlement process, and is

divided into three paragraphs. The first paragraph (b)(1), concerning

discussions of settlement, incorporates existing provisions with minor

editorial changes, the most significant of which corrects a citation to

Sec. 22.16 which should refer to Sec. 22.15. Paragraph (b)(2) would

specify that consent agreements be in writing, and that they include

all terms and conditions of settlement. The content requirements of a

consent agreement are also clarified to include compliance order or

corrective action requirements, and an express waiver of the

respondent's right to a hearing and appeal of the consent order. This

clarification is important, so that respondents enter into settlement

agreements with a full understanding that an agreement to settle

involves waiving rights to a hearing and rights of appeal. Paragraph

(b)(2) also establishes additional content requirements for consent

agreements in cases where the complainant proposes to simultaneously

commence and conclude a case through filing of a consent agreement and

consent order pursuant to Sec. 22.13(b), as a result of successful

settlement through negotiations conducted before a complaint is issued.

These additional content requirements should assure that the public

record clearly identifies the causes of action upon which such cases

are based. Paragraph (b)(3) would be revised to expressly provide that

an administrative action is settled only when the Regional Judicial

Officer or Regional Administrator, or, in cases commenced at EPA

Headquarters, the Environmental Appeals Board, approves a consent

agreement and issues a consent order. This provision is added to

eliminate any uncertainty as to who has authority to conclude a

proceeding.

Paragraph (c) would provide that the effect of settlements and full

payment of proposed penalties is limited to those facts and violations

specifically alleged in the complaint, and reserves the Agency's right

to pursue injunctive relief or criminal sanctions. These provisions

merely make explicit the existing law of res judicata and claim

preclusion, and reflect the Agency's routine practice in settlement of

cases. The statutes authorizing administrative proceedings

simultaneously define the limits of the Agency's jurisdiction in those

proceedings to the assessment of penalties, the issuance of corrective

action or compliance orders, or the revocation, termination or

suspension of permits. None of the statutes administered by EPA grant

to an administrative tribunal the authority to assess criminal

sanctions or compel injunctive relief. Because the statutes authorizing

administrative proceedings expressly limit the Agency's authority in

those proceedings, the settlement of a proceeding commenced under part

22 cannot limit the Agency's right to pursue relief that is beyond the

scope of part 22. See generally Restatement (Second) of Judgments

Sec. 83 comment g (1982). Accordingly, adding this provision to the

CROP does not significantly alter respondents' rights.

Paragraph (d) would recognize use of alternative dispute resolution

proceedings. The Agency encourages use of alternative dispute

resolution in appropriate circumstances, both as a fair means of

resolving enforcement actions and as a method of reducing transaction

costs for all parties. The designation of a neutral (who would not be

the Presiding Officer) would not divest the Presiding Officer of

overall responsibility for the case. The Presiding Officer would retain

during dispute resolution proceedings all of the powers and duties

assigned under Sec. 22.04(c), including the authority to bring the case

to hearing if circumstances so warrant. The Agency has considered

including language specifying the impact of dispute resolution

proceedings on deadlines, but instead proposes to leave this to the

discretion of the Presiding Officer. As needed, the parties may request

temporary stays of proceedings and extensions of deadlines.

Other requirements of the CROP (e.g., the consent agreement and

consent order provisions of Sec. 22.18(b), the ex parte prohibitions of

Sec. 22.08, the public comment provisions of Sec. 22.38) also would

continue to apply, notwithstanding any dispute resolution process.

18. Prehearing Information Exchange; Prehearing Conference; Other

Discovery

Section 22.19: EPA proposes to substantially restructure and revise

this section for ease of use and to make information exchange more

timely and efficient. Paragraphs (a) and (b) would be reversed in order

from the existing CROP, reflecting the fact that information exchange

is more common than, and usually precedes, a prehearing conference. The

Agency proposes to expand the scope of the standard prehearing

information exchange in order to expedite resolution of cases.

The requirements for prehearing exchange would now appear in

paragraph (a). In addition to the information required to be exchanged

under Sec. 22.19(b) of the existing CROP, EPA proposes that each party

should be required to exchange all information it considers relevant to

the assessment of

[[Page 9472]]

a penalty. This provision would apply whether or not the complainant

identifies a specific penalty in the complaint. In addition, for

penalty cases where the complainant has not specified a penalty in the

complaint, the proposed rule would require that the complainant shall

specify a proposed penalty and state the basis for that proposed

penalty. EPA requests comment on whether it is necessary for

complainant to specify a proposed penalty in prehearing exchange. As

noted above, EPA has proposed to allow notice pleading under

Sec. 22.14(a)(4)(ii) in order to allow EPA to issue complaints even

where it is unable to obtain information from the violator which is

necessary to confidently determine the appropriate penalty. Although

EPA anticipates that respondents will provide such information during

the course of settlement discussions, it is possible that in some cases

the necessary information will not be available until respondent

submits its prehearing exchange, or even later. If the complainant is

in no better position to propose a penalty at prehearing exchange than

it was at the time it filed the complaint, there is little value to

such a requirement. EPA requests comment on the utility of this

requirement, and on the merits of allowing complainant to postpone for

an additional 30 days, or indefinitely, the making of a specific

penalty demand.

EPA's proposal would change the rules regarding the exchange of

witness lists and documents in order to facilitate supplementing and

amending prehearing exchange prior to hearing. In so doing, the

proposed rule would make more clear the distinction between the filing

of prehearing exchange and the admission of information into evidence.

In order to prevent undue burden and delay caused by last minute

supplements or amendments of the prehearing information exchange, the

Agency considered proposing restrictions on amendments to prehearing

exchange within 30 days of the hearing date. The Agency instead

proposes that all barriers to amending prehearing exchange should be

dropped in the interest of full and complete exchange of information

between the parties (see Sec. 22.19(f)), and proposes under

Sec. 22.22(a) to tighten the standards for admitting into evidence

information that was not timely exchanged.

The Agency requests comment on the merits of requiring by rule that

the parties simultaneously perform their prehearing information

exchange 90 or 120 days after the filing of the answer. Making

prehearing exchange automatic, rather than dependent on assignment of

an ALJ and on the ALJ's issuance of an prehearing exchange order, could

expedite administrative practice and move cases to a more rapid

resolution. Although an early deadline could prompt the parties to

focus intently on settlement at the earliest stages of a proceeding, it

could also lead to wasted resources if parties were compelled to submit

voluminous prehearing exchanges despite imminent settlements.

The Agency has considered, but is not proposing, amendments

concerning the timing of prehearing exchange. The Agency has considered

the merits of requiring that complainant file its prehearing exchange

before respondent, relative to the merits of requiring that prehearing

exchange be made simultaneously by both parties. Allowing respondent to

submit its prehearing exchange several weeks after receiving

complaint's prehearing exchange might allow respondent to focus its

prehearing exchange more narrowly on what it perceives to be the

weakest points of the complainant's case, thereby conserving

respondent's resources and clarifying the key issues in dispute. In

contrast, the traditional, simultaneous prehearing exchange gives both

parties equal incentive to settle before incurring the expense and

effort of preparing the exchange. Staggering the prehearing exchange

creates a disparate incentive, such that the party designated to make

the later exchange may adopt a ``wait-and-see'' attitude, preferring to

review the papers of the party designated to submit first before

accepting a settlement offer it knows to be in its best interest or

before even engaging in serious settlement discussions. In this manner,

sequential prehearing exchange can delay or even impede settlement, and

causes the lead party to incur unnecessary expenditures of resources.

EPA believes that the disadvantages of sequential prehearing exchange

outweigh the anticipated benefits in the great majority of cases.

The disadvantages of a sequential prehearing exchange do not,

however, compel the conclusion that prehearing exchange must

necessarily be simultaneous in every case. There may be instances where

the circumstances suggest that a case might be more expeditiously

resolved if prehearing exchange were structured in some other manner.

Accordingly, the Agency does not propose to make either simultaneous or

sequential prehearing exchange the mandatory and exclusive option, but

instead would continue to allow the Presiding Officer some discretion

regarding the timing of the prehearing exchange required under this

rule.

Paragraph (b) would describe the purpose of any prehearing

conference which may be held, and is substantially similar to paragraph

(a) of the existing CROP. The revisions would no longer compel the

Presiding Officer to require the parties to ``appear at a conference

before him,'' but instead would make the nature of the conference more

flexible.

In paragraph (c), the phrase ``upon motion or sua sponte'' would be

deleted as surplusage, and as potentially confusing. In paragraph (d),

additional surplus language would be deleted. No substantive changes

are intended. Paragraph (e) from the existing CROP would be deleted as

surplusage, as Sec. 22.04(c) (5), (8) and (10) give the Presiding

Officer ample authority in these matters.

Under the proposed revisions, as well as the existing CROP,

Sec. 22.19 is designed to streamline exchanges of information by the

parties and to discourage dilatory tactics and unnecessary and time-

consuming motion practice. In contrast to the Federal Rules of Civil

Procedure, a formal prehearing exchange of information is the primary

vehicle of information exchange under the CROP. This prehearing

exchange may be supplemented in certain cases by additional discovery

pursuant to paragraph (e). In order to expedite the administrative

hearings process, this other discovery is limited in comparison to the

extensive and time-consuming discovery typical in the Federal courts.

The proposed revisions to paragraph (e) would revise the process

for seeking ``other discovery''. The proposed rule would require that

the party seeking discovery must file a motion which ``shall specify

the method of discovery sought, provide the proposed discovery

instruments and describe in detail the nature of the information and/or

documents sought (and, where relevant, the proposed time and place

where discovery would be conducted).'' By ``proposed discovery

instruments,'' the Agency refers to the specific documents which would

effectuate discovery if the Presiding Officer were to order the

requested discovery (e.g., notices of deposition, depositions upon

written questions, written interrogatories, requests for production of

documents and things and entry upon land for inspection and other

purposes, requests for admission).

The proposed revisions would also refine the substantive standards

for issuance of a discovery order. First, discovery motions would only

be

[[Page 9473]]

authorized after completion of the prehearing information exchange

mandated under paragraph (a), so that ``other discovery'' supplements,

rather than supplants, prehearing exchange. Second, the prohibition

against discovery which would unreasonably delay the proceeding would

be expanded to prohibit discovery which would unreasonably burden the

other party. The Agency believes that unnecessarily burdensome

discovery is inappropriate even if such discovery would not delay a

proceeding. Third, the proposed rule would clarify the existing

requirement that discovery seeks ``information [that] has significant

probative value'', by the addition of the clause ``on a disputed issue

of material fact relevant to liability or the relief sought.'' This

revision is intended to clarify, rather than change, the existing

requirement. See, e.g., Chautauqua Hardware Corp., II EPCRA-90-0223,

Order on Interlocutory Review slip op. at 12 (June 24, 1991) (``The

phrase ``probative value'' denotes the tendency of a piece of

information to prove a fact that is of consequence in the case.'')

The Agency proposes to clarify the requirement in the existing rule

that prohibits discovery where ``[t]he information to be obtained is

not otherwise obtainable''. The phrase ``not otherwise obtainable'' has

been the source of much litigation, and the Agency proposes to

substitute instead a requirement that discovery is permissible so long

as it ``[s]eeks information that is most reasonably obtained from the

non-moving party, and which the non-moving party has refused to provide

voluntarily''. This substitution should not substantively change the

discovery standard, but instead make explicit the two most reasonable

interpretations of ``not otherwise obtainable''. One reasonable

interpretation of the ``not otherwise obtainable'' requirement is that

parties should not resort to discovery until more collegial methods of

obtaining information have been exhausted. The proposed change would

effectively require a party to request voluntary disclosure of the

information sought before seeking a discovery order. Another reasonable

interpretation of ``not otherwise obtainable'' is that a party should

not be burdened by discovery seeking information which is readily

obtained through other sources (e.g., texts available in libraries or

from the publishers, reports or materials available from other

government agencies). If the rule did not encompass this interpretation

of ``not otherwise obtainable'', it would unreasonably burden litigants

by permitting discovery of all information that could be obtained

through a party, or by completely prohibiting discovery of information

that could be obtained from third parties. Instead, EPA proposes to

limit discovery to ``information that is most reasonably obtained from

the non-moving party''. Although this requirement would not eliminate

litigation, it provides a more meaningful context than ``not otherwise

obtainable'' for determining whether other discovery should be allowed.

Paragraph (e)(2) of the proposed revision would expressly prohibit

discovery of a party's settlement positions and information regarding

their development, specifically including penalty calculations for

purposes of settlement based on Agency settlement policies. This would

make explicit a limitation that already exists under the current rule,

as Sec. 22.19(f)(1)(iii) limits discovery to information that has

``significant probative value'', and existing Sec. 22.22 prevents the

introduction of evidence which would be inadmissible under Federal Rule

of Evidence 408. Penalty proposals developed for settlement are offers

of compromise which normally would be inadmissible under Federal Rule

of Evidence 408 because they generally lack significant probative

value, and in addition, because their admission would discourage

settlement. In its administrative enforcement programs under the CWA

and SDWA, the Agency utilizes the same settlement policies that it uses

in judicial enforcement proceedings to determine the penalty amount the

Agency would accept in settlement of a case. This has caused some

confusion for respondents who are more familiar with the Agency's other

administrative enforcement programs, which rely on penalty pleading

policies, rather than settlement policies. The proposed rule would

clarify that penalty calculations derived from a settlement policy, as

opposed to calculations of proposed penalties from a penalty pleading

policy, are not subject to discovery. This change would eliminate the

potential for litigation on matters reserved for settlement

discussions.

The existing CROP provides that the Presiding Officer may order

depositions upon oral questions only where additional conditions, over

and above those applicable to discovery in general, are met. Paragraph

(e)(3) of the revised CROP would maintain this higher standard, and

clarify that these requirements are in addition to those of paragraph

(e)(1).

Additional conditions also apply to the issuance of a subpoena

relative to other discovery, specifically, ``an additional showing of

the grounds and necessity therefor.'' The standards for issuing

subpoenas do not appear in Sec. 22.19 of the existing CROP, but

instead, are repeated in six separate Supplemental rules. Paragraph

(e)(4) of the proposed CROP consolidates this material, allowing

elimination of several supplemental rules. This change does not expand

or limit the authority of the Presiding Officer, nor does it authorize

issuance of subpoenas except where authorized by the Act giving rise to

the cause of action.

Paragraph (e)(5) further clarifies that Freedom of Information Act

(``FOIA'') requests, requests for admissions or stipulations,

inspections, statutorily provided information collection requests, and

administrative subpoenas issued by an authorized Agency official other

than the Presiding Officer do not constitute discovery and are not

restricted by the CROP. This revision does not change the CROP, because

these activities have never been subject to a Presiding Officer's

control. This provision should reduce uncertainty, and consequent

litigation, by clarifying that these independent methods of information

collection are wholly outside the Presiding Officer's authority.

Paragraph (f) would impose on each party a duty to supplement or

correct prior exchanges of information when the party learns that a

prior exchange is deficient. As with the subsections already described

above, this subsection is intended to reinforce the practice of full

and complete voluntary information exchange in order to expedite

proceedings and avoid unnecessary and costly motion practice. This

subsection addresses situations where a party learns that a prior

response is incorrect, inaccurate or outdated. It is not intended to

impose a duty on any party to continually check the accuracy of prior

responses, but does prohibit knowing concealment by a party. This

provision would eliminate any procedural barriers to amending

prehearing exchange, however, EPA also proposes at Sec. 22.22(a) that

information that is not exchanged in a timely manner shall not be

admitted into evidence. Moreover, failure to comply with a prehearing

exchange order would still constitute grounds for issuance of a default

order, notwithstanding these changes.

Paragraph (g) clarifies that a failure of a party to provide

information within its control pursuant to an order of the Presiding

Officer may lead to an inference that the information sought

[[Page 9474]]

would be adverse to the non-exchanging party, to exclusion of the

information from evidence, or to issuance of a default order. In the

existing CROP, a version of this requirement applied to information

provided through other discovery, but its applicability to information

provided through prehearing exchange was unclear. The proposed rule

expressly applies this requirement to all information exchanges, and

expressly authorizes the additional sanction that information might be

excluded from evidence.

19. Accelerated Decision; Decision to Dismiss

Section 22.20: Several editorial changes are made to this section.

No substantive change is intended.

20. Assignment of Presiding Officer; Scheduling the Hearing

Section 22.21: Paragraph (a) would be revised to make it clear that

the Chief Administrative Law Judge presides from the time an answer is

filed until he or she assigns another ALJ. This would assure that there

is a Presiding Officer at every stage of a proceeding.

21. Evidence

Section 22.22(a): EPA proposes splitting this subsection into two

paragraphs. Paragraph (a)(1) would addresses the admission of evidence

into the record. It restates the existing standard, with only a minor

editorial revision, and adds a new standard for exclusion of evidence

which is not provided to opposing parties in a timely manner. It

provides that the Presiding Officer shall not admit into evidence any

document, exhibit, witness name or summary of expected testimony that

has not been provided to all parties at least fifteen days before the

hearing date, unless the non-exchanging party had good cause for

failing to exchange the required information and provided the required

information to all other parties as soon as it had control of the

information, or had good cause for not doing so.

Paragraph (a)(2) would address treatment of confidential business

information (CBI), in conformance with the Agency's general

confidentiality requirements. The 40 CFR part 2, subpart B provisions

regarding treatment of CBI are cross referenced and other provisions

are added to clarify how and when CBI may be used as evidence in a CROP

proceeding. A significant substantive change would authorize the

Presiding Officer to consider CBI evidence outside the presence of a

party if necessary to preserve the confidentiality of the business

information. While EPA expects that the Presiding Officers will seldom

need to exercise this authority, experience has demonstrated the need

for it. In In the Matter of Baker Performance, TSCA-91-H-08, a

respondent charged with manufacture of chemical substances not listed

in the TSCA inventory of existing chemical substances argued that the

chemicals in question were identical to chemicals already listed on the

confidential TSCA inventory by competitors. This posed a dilemma for

EPA, forcing EPA to choose between revealing to the respondent its

competitors' trade secrets in order to prove the violation, or else

foregoing full enforcement. EPA chose in that case to accept settlement

on relatively unfavorable terms rather than reveal the CBI. EPA

believes that allowing the independent Administrative Law Judges the

discretion to review confidential evidence outside the presence of a

party in similar cases would strike an appropriate balance between the

right of confrontation and the statutory mandates to protect

confidential business information. Other changes have been made for

clarity.

Section 22.22(c): For clarity, EPA proposes that the term ``written

testimony'' be substituted for ``verified statements''. As they are

described in the existing paragraph (c), verified statements are in

fact testimony, and differ from live testimony only to the extent that

they are presented in written form. No substantive change is intended.

22. Objections and Offers of Proof

Section 22.23(b): Surplus language would be omitted in the interest

of clarity. No substantive change is intended.

23. Burden of Presentation; Burden of Persuasion; Preponderance of The

Evidence Standard

Section 22.24: EPA proposes to split this section into two

subsections, one addressing burden of presentation and burden of

persuasion, and another addressing the preponderance of the evidence

standard. Paragraph (a) would revise the existing language to adopt a

consistent terminology throughout its discussion of burden of

presentation and burden of persuasion, and to encompass compliance

orders and corrective action orders. The proposed rule would clarify

that respondent bears the burden of persuasion in regard to affirmative

defenses only, although it bears the burden of presentation regarding

all defenses. These revisions are consistent with settled law and would

not change respondents' burdens relative to the existing CROP.

Paragraph (b) would consist of language from the existing CROP, without

any change. The title of the section would be amended to aid readers in

locating the preponderance of the evidence standard established in

paragraph (b).

24. Filing the Transcript

Section 22.25: EPA proposes to add a provision disallowing motions

to conform the transcript of a proceeding to the actual testimony

unless filed within 20 days after notice of the availability of the

transcript, in the interests of finality.

25. Initial Decision

Section 22.27: Paragraph (a) would be amended to encompass

compliance orders, corrective action orders, and permit revocations,

terminations and suspensions. It would further require that a copy of

the initial decision be served on the Assistant Administrator for

Enforcement and Compliance Assurance. Other changes are editorial, and

are not intended to make substantive changes in the CROP.

Paragraph (b) would be amended to require that the Presiding

Officer base the recommended penalty upon evidence in the record and in

accordance with any penalty criteria set forth in the Act. A

requirement that the Presiding Officer explain how the penalty

corresponds to any penalty criteria set forth in the Act would be

substituted for the existing requirement that the Presiding Officer

explain the reasons for recommending a penalty other than the penalty

proposed in the complaint. These changes will clarify the essential

neutrality of the Presiding Officer, but will not result in any

substantive or other procedural changes to CROP proceedings.

Paragraph (c) would be amended to clarify the circumstances under

which an initial decision may become a final order of the Agency. It

further clarifies that the respondent must appeal an initial decision

to the EAB as a prerequisite to judicial review. This addition makes

clear the point at which administrative remedies are exhausted for the

purpose of appeal to Federal courts. The purpose of this latter

amendment is to prevent a party from seeking judicial review prior to

seeking review from EPA's administrative appellate body, the

Environmental Appeals Board. This addition to the CROP is proposed to

conform to the holding in Darby v. Cisneros, 509 U.S. 137 (1993). In

Darby the Supreme Court held that in cases where the Administrative

Procedure Act applies, an appeal to ``superior agency

[[Page 9475]]

authority'' is a prerequisite to judicial review only when expressly

required by statute or when an agency rule requires appeal before

review and the administrative action is made inoperative pending that

review. Courts are not free otherwise to impose an exhaustion

requirement where the agency action has already become ``final'' under

section 10(c) of the APA, 5 U.S.C. 704.

The new language is an express requirement that the administrative

appeals process be exhausted before a party may seek judicial review of

a final agency action. Section 22.27(c) makes it clear that the initial

decision of the Presiding Officer would not be operative pending review

by the Environmental Appeals Board. While this holding in Darby applies

to cases governed by section 704 of the APA, exhaustion of

administrative remedies is also required in cases where APA section

10(c) is not applicable. EPA's position with regard to exhaustion of

administrative remedies in CROP cases is consistent with its position

on exhaustion of administrative remedies generally. See, 40 CFR 66.81

and Bethlehem Steel Corp. v. EPA, 669 F.2d 903 (1982) interpreting 40

CFR 66.81. These changes do not alter respondents' rights and do not

create any right of appeal in Sec. 22.27. Appeal is only permitted

pursuant to the provisions of Sec. 22.30.

26. Motion to Reopen a Hearing

Section 22.28: Paragraph (a) would be amended to clarify the

purposes for reopening a hearing. No substantive change is intended.

EPA would amend paragraph (b) to expand from 10 to 15 days the time

allotted for responding to a motion to reopen a hearing, for

consistency with changes to Sec. 22.16. Other changes are made for

clarity.

27. Appeal From or Review of Interlocutory Orders or Rulings

Section 22.29: EPA proposes that paragraphs (a), (b) and (c) be

revised to clarify the nature of interlocutory appeals, and to allow

ten days from service, rather than six days from notice, to request

interlocutory review. The change in the filing deadline will give

parties additional time, and it will measure that time from a date

easily ascertained by all. No other substantive change is intended.

Paragraph (d) would be deleted as surplusage, as the Presiding

Officer's authority to stay a proceeding is inherent in Sec. 22.04(c)

and the limitations of Sec. 22.29(d) are unnecessary.

28. Appeal From or Review of Initial Decision

Section 22.30: The procedure for filing appeals would be clarified,

including, but not limited to, provisions addressing service and

filing, and describing the contents of any appeal brief. Under the

existing CROP, a party which is not fully satisfied by an initial

decision, but who would be willing to let the decision stand as is, may

feel obliged to file an appeal merely to assure that its own issues are

preserved in the event that the other party appeals the initial

decision on other grounds. The proposal includes a new provision

whereby a party who initially declined to appeal, but who receives a

notice of appeal from another party, is granted an additional 20 days

to raise other issues on appeal. This change would eliminate the need

for protective filings by parties who are largely content with an

initial decision. Other substantive changes include extending the time

to file an appeal from 20 to 30 days, and a provision expressly

limiting the scope of appeals to issues raised during the course of the

proceeding or by the initial decision. A new paragraph (e) specifies

that the general requirements for motions at Sec. 22.16 apply to

motions made in appeals to the EAB. A new paragraph (f) would consist

of language presently in Sec. 22.31(a) concerning decisions on appeals.

Moving this language into Sec. 22.30 makes the structure of Sec. 22.30

comparable to Sec. 22.29. Paragraph (f) describes the scope of review

by the EAB and its authority to increase or decrease a penalty, or to

modify any compliance order, corrective action order, or any permit

revocation, termination and suspension. The proposed revision would

allow the EAB to increase the amount of a penalty assessed in a default

order, but would not allow the EAB to increase the default penalty to

an amount greater than that proposed in the complaint or in a motion

for default, whichever is less. This change would avoid an unintended

implication of the present rule, which could be interpreted as

precluding the EAB from reviewing the amount of a penalty in a default

order which assessed less than the penalty complainant sought.

29. Final Order

Section 22.31: Section 22.31 of the existing CROP applies to final

orders on appeal only; provisions regarding other types of final orders

are scattered throughout the CROP. For clarity and consistency,

requirements and provisions applicable to all final orders would be

consolidated in revised Sec. 22.31. Those provisions now in Sec. 22.31

which apply only to final orders on appeal would be moved to

Sec. 22.30, as noted above. Paragraph (a) would make clear that a final

order constitutes final Agency action. It would provide that the final

order resolves respondent's liability for a civil penalty, compliance

or corrective action order, or the status of a permit or authority to

operate, only for the violations and facts alleged in the complaint,

and that it shall not affect the government's right to injunctive

relief or criminal sanctions. It explicitly states that a final order

will not affect a respondent's obligation to comply with all applicable

provisions of the Act and regulations promulgated thereunder. These

provisions do not alter respondents' rights, but merely make explicit

the existing law of res judicata and claim preclusion. The Agency's

routine practice is to make provisions such as these standard elements

of settlement agreements. Including these provisions in the CROP would

provide a clear limit to the scope of final orders, regardless of

whether the final orders are consent orders, final decisions on appeal,

or unappealed initial decisions.

A new paragraph (b) would clarify that final orders are effective

upon issuance, except that unappealed initial decisions which become

final orders pursuant to Sec. 22.27(c) become effective at the same

time they become final orders, i.e., 45 days after service of the

initial decision. This clause pertains to the effective date of the

order itself; the final order may establish compliance schedules,

schedules for payment of penalties, dates of termination of permits,

etc., notwithstanding this clause. Paragraphs (c) and (d) establish

penalty payment schedules and effective dates for other relief,

respectively, which shall apply unless the final order specifies

otherwise. The existing rule requires payment of the penalty within 60

days after the order was received. This conflicts with the Federal

Claims Collection Standards, which require payment within 30 days after

the date the order was issued, unless EPA decides an extension is

appropriate. See 4 CFR 102.13(g). The proposed rule therefore requires

payment within 30 days after the effective date of the final order.

Paragraph (c) also would require payment of penalties directly to U.S.

Treasury lockboxes, rather than to the Hearing Clerks, and would make

applicable to all proceedings a provision currently in Sec. 22.39(d)

regarding assessment of interest on overdue penalties. This Subsection

would

[[Page 9476]]

specify that the collection of interest on overdue payments shall be in

accordance with the Debt Collection Act, 31 U.S.C. 3717, which is

applicable whether or not it is referenced in part 22. The Agency

requests comment on whether the CROP should address payment of

penalties by electronic transfer of funds, and if so, what procedures

would be appropriate.

A new paragraph (e) would make explicit that although a respondent

may choose to conclude an administrative proceeding by settlement or by

allowing an initial decision to become final without appeal to the

Environmental Appeals Board, each of these options falls short of

exhausting the opportunities available within the CROP for

administrative review. This revision would not substantively change the

requirements of exhaustion of remedies, nor would it alter respondents'

rights. This subsection would simply assure that respondents have

notice that appeal of the final order to the Federal courts is not

available where a respondent settles a case pursuant to Sec. 22.18 or

fails to exercise its right to appeal an initial decision to the

Environmental Appeals Board pursuant to Sec. 22.30.

Paragraph (f) would provide that a final order of the Environmental

Appeals Board issued to a department, agency, or instrumentality of the

United States pursuant to Sec. 22.30 shall become effective (and

``final'' as that term is used in 42 U.S.C. 6961(b)(2)) thirty days

after its service upon the parties, in order that the head of the

affected department, agency, or instrumentality may request a

conference with the Administrator. If the department, agency, or

instrumentality requests a conference with the Administrator, then the

Administrator's ensuing decision would become the final order.

Essentially the same provision appeared in Sec. 22.37(g), the Solid

Waste Disposal Act supplemental rule. It is moved into Sec. 22.31 in

order that the same procedure also would be applicable to penalty

actions brought against federal facilities under other statutes such as

the Safe Drinking Water Act (42 U.S.C. 300j-6) and the Clean Air Act

(42 U.S.C. 7413(d), 7524(c) and 7545(d)(1)). In making the language of

Sec. 22.37(g) apply to proceedings commenced under other statutes,

reference to the Federal Facility Compliance Act would be deleted. The

Agency still intends that a final order issued in a case brought under

the Solid Waste Disposal Act shall constitute a final order for

purposes of the Federal Facility Compliance Act. This opportunity to

confer with the Administrator is available only after the Environmental

Appeals Board has issued a final order on appeal, and only if requested

in writing within 30 days. A motion for reconsideration by the

Environmental Appeals Board is not necessary, however, such a motion

does not toll the thirty-day limit unless specifically so ordered by

the Environmental Appeals Board.

30. Supplemental Rules of Practice Applicable to Proceedings Authorized

Under Specific Statutes

Section 22.33: The provisions discussing subpoenas have been

deleted from this supplemental rule, as well as from Secs. 22.34,

22.37, 22.39, 22.40, and 22.43, allowing the elimination of this and

several other supplemental rules. The procedures for subpoenas are now

consolidated in Sec. 22.19, as discussed above. The Presiding Officer's

authority to issue a subpoena remains dependant on the statute giving

rise to the cause of action. Owing to the fact that the subpoena

provisions were the only substantive elements of this supplemental

rule, the entire supplemental rule applying to TSCA proceedings would

be deleted.

Section 22.34: This section would be amended to include, in

addition to proceedings for civil penalty assessment under Title II of

the CAA, proceedings governing the assessment of a civil penalty under

section 113(d) of the CAA. The latter proceedings are presently covered

by Sec. 22.43, which mostly mirrors Sec. 22.34. The one substantive

difference, the Sec. 22.43(b)(2) provision allowing 30 days for filing

an answer, is no longer necessary as a consequence of proposed changes

to Sec. 22.15. Paragraph (a) of this supplemental rule and each of the

other supplemental rules also would be amended to eliminate the

implication that the supplemental rules are not part of the

Consolidated Rules of Practice. The term ``final order'' would be

substituted for the phrase ``administrative penalty order'' in

paragraph (b), for consistency and to encompass field citations as well

as administrative penalty orders issued pursuant to section 113(d)(1)

of the CAA.

A new paragraph (c) would apply to default orders for failure to

answer a field citation. Section 59.5(d) of the Field Citation Rule

provides that when a respondent fails to file a timely answer to a

field citation (and fails to offer to pay the penalty under the quick

resolution procedure at Sec. 22.18(a)(2)), the Presiding Officer shall

issue a default order assessing the penalty proposed in the complaint.

This provision initially was proposed in the May 3, 1994, Federal

Register (59 FR 22776), and EPA does not seek additional comment on it

at this time.

Section 22.35: In the supplemental rules governing proceedings

under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA),

EPA proposes to amend the venue provision of paragraph (b) to address

the situation where a respondent's place of residence is outside the

U.S. FIFRA regulates the domestic conduct of foreign-based pesticide

registrants, manufacturers, producers, distributors, applicators, etc.

Accordingly, for a person who claims a place of residence outside the

U.S., EPA interprets the phrase ``place of residence'', as used in 7

U.S.C. 136l(a)(3), to mean either the person's primary place of

business within the U.S., or the primary place of business of the

person's U.S. agent. Paragraph (c) would be deleted for consistency

with changes to Sec. 22.27(b).

Section 22.36: The supplemental rule regarding the Marine

Protection, Research and Sanctuaries Act would be deleted as surplusage

in light of changes made elsewhere in the CROP to accommodate permit

revocation, termination and suspension proceedings, particularly in

Sec. 22.13.

Section 22.37: The scope of this supplemental rule would be

expanded to include section 3005(d) of the SWDA, which authorizes

termination of permits, and section 9006, which authorizes the issuance

of administrative compliance orders to address violations of

Underground Storage Tank (``UST'') requirements. The notice

requirements presently in paragraphs (b), (c) and (d) would be deleted

as surplusage. On December 2, 1980 (45 FR 79808), EPA suspended these

subsections until further notice, in response to amendments to the SWDA

which eliminated the pre-complaint notice requirements from the Act.

Today, EPA proposes to delete the requirements entirely. The proposed

revision of Sec. 22.15, allowing 30 days for filing an answer, would

make paragraph (e) surplusage as well. A new paragraph (b) would

specify that a complaint may contain a compliance order issued under

section 3008(a) or section 9006(a), or a corrective action order issued

under section 3008(h) or section 9003(h)(4) of the SWDA. This provision

is included to make clear that in these circumstances, the complaint is

an ``order'' as that term is used in the aforementioned sections of the

SWDA. Any such order would automatically become a final order unless,

no later than thirty (30) days after the order is served, the

respondent requests a hearing pursuant to Sec. 22.15. The provision

concerning the Federal

[[Page 9477]]

Facilities Compliance Act contained in paragraph (g) would be moved to

Sec. 22.31(f), in order that it may be applicable to actions commenced

pursuant to other statutes as well as the SWDA.

Section 22.38: In paragraph (a), the scope of this supplemental

rule would be expanded to include civil penalties authorized by section

311(b)(6) of the Clean Water Act. Paragraph (b) would be amended to

provide a more explicit process for implementing the statutory

requirement regarding state consultation. The public notice and comment

provisions would be removed from paragraphs (c), (d) and (f) and placed

in a separate supplemental rule, Sec. 22.45, which would also apply to

proceedings under section 300h-2(c) of the Safe Drinking Water Act. The

proposed text of Sec. 22.45 would provide much more detailed and

comprehensive process than is currently provided under Sec. 22.38(c),

(d) and (f). The applicability of Sec. 22.45 would be noted in

Sec. 22.38(a) in order to provide additional notice that both

supplemental rules apply. The provision presently in paragraph (e)

would be renumbered as (c), and expanded to include proceedings under

section 311(b)(6) of the Clean Water Act, consistent with changes to

paragraph (a). A new paragraph (d) would require that in proceedings

pursuant to section 311(b)(6) of the Clean Water Act penalties be paid

into the Oil Spill Liability Trust Fund.

Section 22.39: Most of the changes to this supplemental rule are

consistent with changes to other supplemental rules already discussed.

In addition, language proposed to be added to the main text of the CROP

at Sec. 22.31 would be deleted from Sec. 22.39(d) (which would be

renumbered as (c)).

Section 22.40: The supplemental rule regarding the Emergency

Planning and Community Right-To-Know Act would be deleted in its

entirety. The subpoena provisions would be deleted from this and other

supplemental rules as discussed above. In addition, the provisions

regarding judicial review in paragraph (c) and collection of penalties

in paragraph (d) can also be deleted as surplusage. No substantive

change is intended by the deletion of this supplemental rule.

Section 22.41: The only changes to the supplemental rule regarding

the Asbestos Hazard Emergency Response Act are consistent with changes

to other supplemental rules already discussed. No substantive change is

intended by these editorial revisions.

Section 22.42: Paragraphs (b) through (e) of the Safe Drinking

Water Act supplemental rule would be deleted as surplusage. No

substantive change is intended by these deletions. A new paragraph (b)

would allow respondents in certain non-APA proceedings the right to

choose that the hearing be conducted in accordance with section 554 of

the APA, as required under section 1414(g)(3)(B) of the Safe Drinking

Water Act. This provision would enable respondent to make subpart I

inapplicable, notwithstanding the Agency's having commenced the

proceeding under subpart I, by requesting in its answer a hearing on

the record in accordance with 5 U.S.C. 554. EPA proposes that a

respondent's failure to exercise this right in its answer shall

constitute a waiver of that right. This limitation is necessary in

order to avoid the delays, disruptions, and duplications of effort

which would result if a case were reassigned from a Regional Judicial

Officer to an ALJ after the proceeding was well underway.

Section 22.43: The provisions of the existing Sec. 22.43 would be

incorporated into Sec. 22.34, as discussed above. A new supplemental

rule applicable to proceedings against a federal facility pursuant to

the Safe Drinking Water Act Amendments of 1996, Pub. L. No. 104-182

would be codified as Sec. 22.43. Paragraph (b) describes the effective

date of any penalty order issued under section 1447(b) of the Act.

Paragraph (c) describes the public notice requirements for issuance of

a final penalty order.

Section 22.44: This section presents a new supplemental rule for

termination of NPDES permits issued under the Clean Water Act and for

permits issued under Subtitle C of the Resource Conservation and

Recovery Act. This new supplemental rule has already been proposed (60

FR 65,268), and EPA does not seek additional comment at this time.

Sections 22.45: The Agency proposes to add a new supplemental rule

governing public notice and comment in proceedings under section 309(g)

of the Clean Water Act and section 300h-2(c) of the Safe Drinking Water

Act. The detailed procedures proposed for public notice and comment are

sufficiently extensive that the Agency proposes to codify them once, in

a single supplemental rule applicable to these two types of

proceedings, rather than repeating the same requirements in two

separate rules. This supplemental rule would complement Sec. 22.38,

such that both would apply to proceedings under section 309(g) of the

Clean Water Act. These public commenter rights are separate from, and

in addition to, the intervention and amicus curie provisions at

Sec. 22.11.

The substance of the proposed Sec. 22.45 replaces and expands on

the procedures presently in Sec. 22.38 (c), (d) and (f), in order to

clarify commenter provisions and to fully satisfy the statutory

requirements. Section 22.45(b) would require the complainant to provide

public notice and an opportunity to comment on a complaint or on a

proposed consent agreement where the parties agree to settle without

the filing of a complaint pursuant to Sec. 22.13(b). This provision

would require the Agency to accommodate commenters in situations where

the agency proposes to settle an action without the filing of a

complaint. Paragraph (b)(2) sets out the type and content of the

required public notice, so that the notice will provide any potential

commenter with sufficient information to make an initial determination

as to whether or not he wishes to comment.

Paragraph (c) expands procedures for participation by a commenter.

These procedures provide a meaningful opportunity for commenters to

present evidence, as required by statute, and at the same time limit

the opportunity commenters might have to delay issuance of a final

order through dilatory or frivolous submissions. Paragraph (c)(1) sets

out the requirements for commenter participation in a proceeding. It

describes both the obligations of the commenter and those of the

Presiding Officer in this context. It establishes express limits on the

scope of commenter participation, and gives the Presiding Officer broad

discretion to further control the extent of commenter participation.

Paragraph (c)(2) sets out limitations on commenter cross-examination of

witnesses, and prohibits the commenter from either participating in, or

being subject to, any discovery or prehearing information exchange.

Paragraph (c)(3) assures that cases are not settled before the end of a

required comment period.

Paragraph (c)(4) describes the procedures governing a commenter's

petition to set aside a consent order where no hearing on the merits

was held. The Agency believes that this language establishes

appropriate limits on such requests, while at the same time meeting the

requirements of the respective statutes and avoiding inappropriate

tainting of the administrative record. Paragraph (c)(4)(i) requires the

complainant to provide all commenters and the Regional Administrator

with a copy of the proposed consent order. The Presiding Officer and

Hearing Clerk do not receive a copy of the proposed order at this

juncture, in order to protect the

[[Page 9478]]

administrative record and assure that the Presiding Officer, who may

have to adjudicate the case if settlement efforts fail, is not privy to

the parties' settlement positions. Paragraph (c)(4)(ii) requires that,

within 30 days of receipt of the proposed order, the commenter must

provide to the Regional Administrator and the parties (but not to the

Presiding Officer or Hearing Clerk) any petition to set aside the

consent order. Paragraph (c)(4)(iii) then permits the complainant to

withdraw the proposed order within 15 days of receipt of a petition, in

order to consider the matters raised. If the complainant does not

withdraw the proposed order within 15 days, the Regional Administrator

shall appoint a Petition Officer to review the petition and make a

determination as to the issues raised. A copy of the Regional

Administrator's order of appointment shall be sent to the Presiding

Officer and the parties. These procedures are designed, once again, to

avoid tainting the Presiding Officer or administrative record with

materials relevant to settlement negotiations only. Paragraph

(c)(4)(iv) gives the complainant 30 days in which to file with the

Petition Officer (not the Presiding Officer) the complainant's response

to the petition. Copies of the response are provided to the parties and

commenter(s), but not to the Presiding Officer and Hearing Clerk.

Paragraph (c)(4)(v) describes the Petition Officer's duties upon

receipt of complainant's response. Note here that the Petition

Officer's written findings will be filed with the Hearing Clerk and

Presiding Officer. Paragraph (c)(4)(vi) describes the Presiding

Officer's duties where the Petition Officer rules that a hearing is

required and the petition for hearing is granted. Paragraph (c)(4)(vii)

describes the Petition Officer's duties where the Officer determines

that a hearing is not required. Paragraph (c)(4)(viii) and (ix)

describe the procedures for issuance of the consent order, for appeal

of such order in the appropriate U.S. District Court, and when the

order becomes final after denial of appellate review.

Sections 22.46 through 22.49: Reserved.

31. Supplemental Rules for Administrative Proceedings not Governed by

Section 554 of the Administrative Procedure Act

Sections 22.50 through 22.53 comprise subpart I, which presents

modifications to the main text of the CROP to facilitate use of the

CROP in administrative adjudications where a hearing on the record is

not required. Such adjudications are commonly referred to as ``non-

APA'' proceedings in reference to the Administrative Procedure Act, of

which sections 554, 556 and 557 apply only to ``adjudication[s]

required by statute to be determined on the record after opportunity

for an agency hearing''. 5 U.S.C. 554(a)(1). A key feature of these

non-APA procedures is that the Presiding Officer need not be an

Administrative Law Judge, as required in proceedings subject to APA

554, 556 and 557. Other differences include greater limitations on

discovery and a prohibition on interlocutory appeals, however, it is

only the absence of an Administrative Law Judge which puts the subpart

I procedures outside the requirements of APA 554, 555, and 556. Owing

to the retention of most of subparts A through G, the subpart I

procedures provide nearly the same level of procedural protection for

respondent's interests as would be available in a hearing fully

conforming to the requirements of subparts A through G.

The subpart I procedures would retain the extensive prehearing

exchange mandated in Sec. 22.19(a) (requiring exchange of witness

lists, summaries of expected testimony, copies of documents or

exhibits, and evidence relevant to the amount of the penalty). Although

courts have confirmed that there is no constitutional due process right

to discovery in administrative adjudications (see e.g., Silverman v.

CFTC, 549 F.2d 28 (7th Cir. 1977); NLRB v. Valley Mold Co., 530 F.2d

693 (6th Cir. 1976) cert. den. 429 US 824), the prehearing exchange

under Sec. 22.19(a) provides substantial discovery well in advance of a

hearing.

The procedures provided through subpart I are adequate to assure a

fair hearing, notwithstanding the absence of an ALJ, additional

prehearing discovery and interlocutory review. The differences between

the APA and non-APA provisions of the CROP are unlikely to affect the

outcome of an administrative enforcement proceeding, and unlikely to

impair the accuracy of the Agency's decisionmaking. Providing an ALJ

for every case, including those lacking significant legal or factual

dispute, would draw limited resources away from more complex and more

significant cases. Allowing interlocutory appeals and additional

discovery, such as interrogatories, depositions, requests for

documents, would add significant delay to administrative enforcement

and could cause extraordinary resource burdens. The absence of these

additional procedural protections in non-APA proceedings poses only

minor risk of impairing the regulated community's interest in fair and

accurate adjudications, yet making them generally available would put

substantial fiscal and administrative burdens on the government.

Accordingly, EPA is not obliged to provide these additional procedural

protections in non-APA proceedings in order to satisfy the requirements

of the due process clause. Matthews v. Eldridge, 424 U.S. 319, 344-45

(1976); also see Chemical Waste Management, Inc. v. U.S. E.P.A., 873

F.2d 1477 (D.C. Cir. 1989).

Although the Agency has not yet through rulemaking established

formal procedures for the assessment of civil penalties through non-APA

proceedings, the Agency has been conducting such proceedings under the

proposed part 28 procedures and program-specific guidance. Where it is

not inconsistent with other regulations, EPA intends that the

procedures for non-APA proceedings proposed herein should be used in

non-APA penalty proceedings pending promulgation of a final rule.

Accordingly, non-APA penalty cases filed after the publication of this

proposed rule should follow the procedures herein. Cases that have

already commenced pursuant to the proposed part 28 procedures shall

continue to be governed by the proposed part 28 procedures, however,

complaints withdrawn in accordance with Sec. 28.18(a)(1) may be refiled

under the proposed CROP. In addition, a proceeding commenced under the

proposed part 28 may be converted into a proceeding under the proposed

CROP provided that no evidentiary hearing has been held and that all

parties and the Presiding Officer agree to the change.

Section 22.50: Section 22.50 defines the scope of subpart I.

Paragraph (a) indicates that the initial decision to bring a proceeding

pursuant to subpart I is made by the Agency and requires that the

Agency indicate such decision in the complaint. The Agency may in any

case decline to apply subpart I and instead give the respondent the

greater process of law afforded by a proceeding conforming to section

554 of the APA. Paragraph (a) acknowledges that the Agency may not

apply subpart I where a statute requires a hearing in accordance with

section 554 of the Administrative Procedure Act. Examples where

Congress has authorized EPA to administratively assess penalties

through proceedings that are not subject to the requirements of section

554 in certain circumstances include: CWA sections 309(g)(2)(A) and

311(b)(6)(A) & (B)(i) (33 U.S.C. 1319(g)(2)(A) and 1321(b)(6)(A) &

(B)(i)); section 109(a) of the Comprehensive

[[Page 9479]]

Environmental Response, Compensation and Liability Act (CERCLA) (42

U.S.C. 9609(a)); section 325(b)(1), (c), and (d) of the Emergency

Planning and Community Right-To-Know Act (EPCRA) (42 U.S.C.

11045(b)(1), (c), and (d)); SDWA section 1414(g)(3)(B) (42 U.S.C. 300g-

3(g)(3)(B)); and CAA section 113(d)(3) (42 U.S.C. 7413(d)(3)); and

issuance of a penalty-only order or a penalty/compliance order under

SDWA section 1423(c) (42 U.S.C. 300h-2(c)). At this time, EPA does not

intend to alter its present practice of providing the full APA process

in CERCLA and EPCRA cases, although if circumstances warrant, the

Agency may in the future exercise its authority to assess CERCLA and

EPCRA penalties through non-APA proceedings. EPA welcomes comment

concerning the types of CERCLA and EPCRA penalty cases for which non-

APA procedures would be appropriate.

Paragraph (b) describes how the subpart works in conjunction with

the preceding sections of the CROP, and also identifies those sections

of the CROP which are inapplicable to a non-APA proceeding brought

under subpart I.

Section 22.51: The term ``Presiding Officer'' would be defined for

the purposes of a proceeding under this subpart to mean a Regional

Judicial Officer, and provides that the Regional Judicial Officer shall

rule on all motions, notwithstanding the provisions of Sec. 22.16(c)

which provide that post-answer motions be ruled on by the

Administrative Law Judge.

Section 22.52: This section defines the parameters of information

exchange for purposes of non-APA proceedings. The Agency's goal is to

encourage complete and voluntary information exchange by the parties

and limit unnecessary motion practice. Parties would be subject to the

prehearing information exchange authorized in Sec. 22.19(a), but most

additional discovery would be prohibited under this subpart. The

proposed Sec. 22.52 would also require the respondent to provide in its

prehearing exchange information in regard to any economic benefit it

may have enjoyed as a result of the alleged non-compliance or a failure

to act. Requiring this information up-front will help to clarify

penalty issues early on, and avoid excessive and time-consuming motion

practice.

The proposed Sec. 22.52 would prohibit most additional discovery

that would otherwise be allowed under Sec. 22.19(e). Although it would

prohibit most discovery, the complainant would be entitled to discovery

of information concerning respondent's economic benefit of

noncompliance and of financial records probative of respondent's

ability to pay a penalty. Under several statutes, this information must

be made part of the administrative record supporting a penalty

determination, but it generally is not available to the Agency except

through discovery of the respondent. Accordingly, discovery of this

information must be permitted in order to prevent respondents from

avoiding enforcement by simply withholding information.

Section 22.53: This section prohibits interlocutory appeals in

proceedings under this subpart. The Agency sees little value in

allowing interlocutory appeals in these relatively informal enforcement

actions, particularly since parties to a proceeding under subpart I

retain full appeal rights once an initial decision is issued. The

Agency is particularly concerned that permitting interlocutory appeals

would slow resolution of non-APA enforcement actions considerably.

32. Appendices

Appendix A: The Appendix would be amended to reflect the current

addresses of EPA Regional Offices and EPA Headquarters.

Appendix B: This new appendix would be added to provide the

addresses of EPA Regional and Headquarters lockboxes. These are the

addresses to which, generally, the payments of civil penalties would be

sent. The Agency requests comment on whether, and if so, how the CROP

should address the electronic transfer of funds in addition to, or in

lieu of, payment by check.

B. Revisions to Part 59

EPA anticipates that its May 3, 1994, proposed part 59 rule on

field citations (59 FR 22776) will become final while these proposed

revisions to the CROP are pending. Upon final promulgation of these

revisions to the CROP, subpart B of part 59 would be superseded and

deleted from the CFR.

III. Invitation of Public Comment

EPA invites comments on all aspects of the revisions proposed to

part 22 and part 59. For the convenience of the reader only, EPA is

publishing in its entirety part 22 as it would be revised. EPA is not

proposing to readopt those portions of part 22 which would remain

unchanged. This Notice of Proposed Rulemaking is limited to those

changes from the existing regulations described in this Notice.

Information on the time period for submission of comments and

directions for their submission may be found in the DATES and ADDRESSES

sections of this document.

IV. Administrative Requirements

A. The Regulatory Flexibility Act

Under the Regulatory Flexibility Act, 5 U.S.C. 601-612, whenever an

agency is required to publish a general notice of rulemaking for any

proposed or final rule, it must prepare and make available for public

comment a regulatory flexibility analysis that describes the impact of

the rule on small entities, i.e., small business, small organizations,

and small governmental jurisdictions. The analysis is not required,

however, where the Administrator certifies that the rule will not have

a significant economic impact on a substantial number of small

entities.

This regulation will impose no significant costs on any small

entities, because it creates no new regulatory requirements, but

instead simplifies existing procedural rules. The overall economic

impact on small entities is therefore believed to be nominal, if any at

all. Accordingly, I hereby certify that this proposed regulation will

not have a significant impact on a substantial number of small

entities.

B. Executive Order 12866

Under Executive Order 12866, (58 FR 51,735 (October 4, 1993)) the

Agency must determine whether the regulatory action is ``significant''

and therefore subject to OMB review and the requirements of the

Executive Order. The Order defines ``significant regulatory action'' as

one that is likely to result in a rule that may:

(1) Have an annual effect on the economy of $100 million or more or

adversely affect in a material way the economy, a sector of the

economy, productivity, competition, jobs, the environment, public

health or safety, or State, local or tribal governments or communities;

(2) Create a serious inconsistency or otherwise interfere with an

action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlements, grants,

user fees, or loan programs or the rights and obligations of recipients

thereof; or

(4) Raise novel legal or policy issues arising out of legal

mandates, the President's priorities, or the principles set forth in

the Executive Order.

It has been determined that this rule is not a ``significant

regulatory action'' under the terms of Executive Order 12866 and is

therefore not subject to OMB review.

[[Page 9480]]

C. Paperwork Reduction Act

This proposed rule contains no information collection activities

and, therefore, no information collection request (ICR) will be

submitted to the Office of Management and Budget (OMB) for review in

compliance with the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

D. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates Reform Act of 1995 (``UMRA''),

Public Law 104-4, establishes requirements for Federal agencies to

assess the effects of their regulatory actions on State, local, and

tribal governments and the private sector. Under section 202 of the

UMRA, EPA generally must prepare a written statement, including a cost-

benefit analysis, for proposed and final rules with ``Federal

mandates'' that may result in expenditures to State, local, and tribal

governments, in the aggregate, or to the private sector, of $100

million or more in any one year. When a written statement is needed for

an EPA rule, section 205 of the UMRA generally requires EPA to identify

and consider a reasonable number of regulatory alternatives and adopt

the least costly, most cost-effective or least burdensome alternative

that achieves the objectives of the rule. The provisions of section 205

do not apply when they are inconsistent with applicable law. Moreover,

section 205 allows EPA to adopt an alternative other than the least

costly, most cost-effective or least burdensome alternative if the

Administrator publishes with the final rule an explanation why that

alternative was not adopted. Before EPA establishes any regulatory

requirements that may significantly or uniquely affect small

governments, including tribal governments, it must have developed under

section 203 of the UMRA a small government agency plan. The plan must

provide for notifying potentially affected small governments, giving

them meaningful and timely input in the development of EPA regulatory

proposals with significant Federal intergovernmental mandates, and

informing, educating, and advising them on compliance with the

regulatory requirements.

Today's rule contains no Federal mandates (under the regulatory

provisions of Title II of the UMRA) for State, local, or tribal

governments or the private sector. The rule imposes no enforceable

duties on any of these governmental entities or the private sector.

List of Subjects

40 CFR Part 22

Environmental protection, Administrative practice and procedure.

40 CFR Part 59

Environmental protection, Administrative practice and procedure,

Air pollution control, Labeling, Penalties, Reporting and recordkeeping

requirements.

Dated: February 6, 1998.

Carol M. Browner,

Administrator.

For the reasons set forth in the preamble, EPA proposes to amend 40

CFR parts 22 and 59 as follows:

1. Part 22 is revised to read as follows:

PART 22--CONSOLIDATED RULES OF PRACTICE GOVERNING THE

ADMINISTRATIVE ASSESSMENT OF CIVIL PENALTIES, ISSUANCE OF

COMPLIANCE OR CORRECTIVE ACTION ORDERS, AND THE REVOCATION,

TERMINATION OR SUSPENSION OF PERMITS

Subpart A--General

Sec.

22.01 Scope of this part.

22.02 Use of number and gender.

22.03 Definitions.

22.04 Roles of the Environmental Appeals Board, Regional Judicial

Officer and Presiding Officer; disqualification, withdrawal, and

reassignment.

22.05 Filing, service, and form of pleadings and documents;

business confidentiality claims.

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 and amicus curiae.

22.12 Consolidation and severance.

Subpart C--Prehearing Procedures

22.13 Commencement of a proceeding.

22.14 Content and amendment of the complaint.

22.15 Answer to the complaint.

22.16 Motions.

22.17 Default.

22.18 Quick resolution; settlement; alternative dispute resolution.

22.19 Prehearing information exchange; prehearing conference; other

discovery.

22.20 Accelerated decision; decision to dismiss.

Subpart D--Hearing Procedures

22.21 Assignment of Presiding Officer; scheduling the hearing.

22.22 Evidence.

22.23 Objections and offers of proof.

22.24 Burden of presentation; burden of persuasion; preponderance

of the evidence standard.

22.25 Filing the transcript.

22.26 Proposed findings, conclusions, and order.

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 interlocutory orders or rulings.

22.30 Appeal from or review of initial decision.

Subpart G--Final Order

22.31 Final order.

22.32 Motion to reconsider a final order.

Subpart H--Supplemental Rules

22.33 [Reserved]

22.34 Supplemental rules governing the administrative assessment of

civil penalties under the Clean Air Act.

22.35 Supplemental rules governing the administrative assessment of

civil penalties under the Federal Insecticide, Fungicide, and

Rodenticide Act.

22.36 [Reserved]

22.37 Supplemental rules governing administrative proceedings under

the Solid Waste Disposal Act.

22.38 Supplemental rules of practice governing the administrative

assessment of civil penalties under the Clean Water Act.

22.39 Supplemental rules governing the administrative assessment of

civil penalties under section 109 of the Comprehensive Environmental

Response, Compensation, and Liability Act of 1980, as amended.

22.40 [Reserved]

22.41 Supplemental rules governing the administrative assessment of

civil penalties under Title II of the Toxic Substance Control Act,

enacted as section 2 of the Asbestos Hazard Emergency Response Act

(AHERA).

22.42 Supplemental rules governing the administrative assessment of

civil penalties for violations of compliance orders issued under

part B of the Safe Drinking Water Act.

22.43 Supplemental rules governing the administrative assessment of

civil penalties against a federal agency under the Safe Drinking

Water Act.

22.44 Supplemental rules governing the termination of permits under

section 402(a) of the Clean Water Act or under section 3005(d) of

the Resource Conservation and Recovery Act.

22.45 Supplemental rules governing public notice and comment in

proceedings under section 309(g) of the Clean Water Act and section

300h-2(c) of the Safe Drinking Water Act.

22.46-22.49 [Reserved]

[[Page 9481]]

Subpart I--Administrative Proceedings Not Governed by Section 554 of

the Administrative Procedure Act

22.50 Scope of this subpart.

22.51 Presiding Officer.

22.52 Information exchange and discovery.

22.53 Interlocutory orders or rulings.

Appendix A to Part 22--Addresses of EPA Regional Offices and

Headquarters

Appendix B to Part 22--Addresses of Regional and Headquarters

Lockboxes

Authority: 7 U.S.C. 136l; 15 U.S.C. 2610(c), 2615(a) and 2647;

33 U.S.C. 1319(g), 1321(b)(6) and 1342(a); 33 U.S.C. 1415(a) and (f)

and 1418; 42 U.S.C. 300g-3(g)(3)(B), 300h-2(c) and 300j-6(a); 42

U.S.C. 6912, 6925, 6928, 6945(c)(2), 6961, 6991b and 6991e; 42

U.S.C. 7413(d), 7524(c), 7545(d), 7547(d), 7601 and 7607(a); 42

U.S.C. 9609; 42 U.S.C. 11045; 42 U.S.C. 14304.

Subpart A--General

Sec. 22.01 Scope of this part.

(a) These Consolidated Rules of Practice govern all administrative

adjudicatory proceedings for:

(1) The assessment of any administrative civil penalty conducted

under section 14(a) of the Federal Insecticide, Fungicide and

Rodenticide Act as amended (7 U.S.C. 136l(a));

(2) The assessment of any administrative civil penalty under

sections 113(d), 205(c), 211(d) and 213(d) of the Clean Air Act, as

amended (42 U.S.C. 7413(d), 7524(c), 7545(d) and 7547(d)).

(3) The assessment of any administrative 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) and (f));

(4)(i) The issuance of a compliance order pursuant to section

3008(a), section 4005(c)(2), section 6001(b), or section 9006(a),

suspension or revocation of a permit pursuant to section 3005(d) or

section 3008(a), or the suspension or revocation of authority to

operate as an interim status facility pursuant to section 3008(h) of

the Solid Waste Disposal Act (``SWDA'') (42 U.S.C. 6925(d) & (e),

6928(a) & (h), 6945(c)(2), 6961(b), and 6991e(a)); or the assessment of

any administrative civil penalty under sections 3008, 4005(c)(2),

6001(b), and 9006 of the SWDA (42 U.S.C. 6928, 6945(c)(2), 6961(b), and

6991e), except as provided in 40 CFR parts 24 and 124.

(ii) The issuance of corrective action orders under section 3008(h)

of the SWDA only when such orders are contained within an

administrative order which:

(A) Includes claims under section 3008(a) of the SWDA; or

(B) Includes a suspension or revocation of authorization to operate

under section 3005(e) of the SWDA; or

(C) Seeks penalties under section 3008(h)(2) of the SWDA for non-

compliance with a order issued pursuant to section 3008(h).

(iii) The issuance of corrective action orders under section

9003(h)(4) of the SWDA only when such orders are contained within

administrative orders which include claims under section 9006 of the

SWDA.

(5) The assessment of any administrative civil penalty conducted

under sections 16(a) and 207 of the Toxic Substances Control Act (15

U.S.C. 2615(a) and 2647).

(6) The assessment of any administrative civil penalty under

sections 309(g) and 311(b)(6), or the termination of any permit issued

pursuant to section 402(a) of the Clean Water Act (33 U.S.C. 1319(g),

1321(b)(6) and 1342(a));

(7) The assessment of any administrative civil penalty under

section 109 of the Comprehensive Environmental Response, Compensation,

and Liability Act of 1980, as amended (42 U.S.C. 9609);

(8) The assessment of any administrative civil penalty under

section 325 of the Emergency Planning and Community Right-To-Know Act

of 1986 (EPCRA) (42 U.S.C. 11045);

(9) The assessment of any administrative civil penalty under

sections 1414(g)(3)(B), 1423(c), and 1447(b) of the Safe Drinking Water

Act as amended (42 U.S.C. 300g-3(g)(3)(B), 300h-2(c), and 300j-6(b)),

or the issuance of any order requiring both compliance and the

assessment of an administrative civil penalty under section 1423(c).

(10) The assessment of any administrative civil penalty or the

issuance of any order requiring compliance under Section 5 of the

Mercury-Containing and Rechargeable Battery Management Act (42 U.S.C.

14304).

(b) The supplemental rules set forth in subparts H and I of this

part establish special procedures for proceedings identified in

paragraph (a) of this section where the Act allows or requires

procedures different from the procedures in subparts A through G of

this part. The procedures in any applicable subpart H or I of this part

supplemental rule supersede any conflicting provisions of subparts A

through G of this part.

(c) Questions arising at any stage of the proceeding which are not

addressed in these Consolidated Rules of Practice shall be resolved at

the discretion of the Administrator, Environmental Appeals Board,

Regional Administrator, or Presiding Officer, as provided for in these

Consolidated Rules of Practice.

Sec. 22.02 Use of number and gender.

As used in these Consolidated Rules of Practice, words in the

singular also include the plural and words in the masculine gender also

include the feminine, and vice versa, as the case may require.

Sec. 22.03 Definitions.

(a) The following definitions apply to these Consolidated Rules of

Practice:

Act means the particular statute authorizing the proceeding at

issue.

Administrative Law Judge means an Administrative Law Judge

appointed under 5 U.S.C. 3105 (see also Pub. L. 95-251, 92 Stat. 183).

Administrator means the Administrator of the U.S. Environmental

Protection Agency or his delegate.

Agency means the United States Environmental Protection Agency.

Business confidentiality claim means a confidentiality claim as

defined in 40 CFR 2.201(h).

Clerk of the Board means the Clerk of the Board, Mail Code 1103B,

U.S. Environmental Protection Agency, 401 M St. SW., Washington, DC

20460.

Commenter means any person (other than a party) or representative

of such person who timely:

(1) Submits in writing to the Regional Hearing Clerk that he is

providing or intends to provide comments on the proposed assessment of

a penalty pursuant to sections 309(g)(4) and 311(b)(6)(C) of the Clean

Water Act or section 1423(c) of the Safe Drinking Water Act, whichever

applies, and intends to participate in the action; and

(2) Provides the Regional Hearing Clerk with a return address.

Complainant means any person authorized to issue a complaint in

accordance with Secs. 22.13 and 22.14 on behalf of the Agency to

persons alleged to be in violation of the Act. The complainant shall

not be a member of the Environmental Appeals Board, the Regional

Judicial Officer or any other person who will participate or advise in

the decision.

Consolidated Rules of Practice means the regulations in this part.

Environmental Appeals Board means the Board within the Agency

described in Sec. 1.25 of this chapter.

Final Order means:

(1) An order issued by the Environmental Appeals Board or the

Administrator after an appeal of an initial decision, accelerated

decision,

[[Page 9482]]

decision to dismiss, or default order, disposing of the matter in

controversy between the parties,

(2) An initial decision which becomes a final order under

Sec. 22.27(c), or

(3) A final order or consent order issued in accordance with

Sec. 22.18.

Hearing means a hearing on the record open to the public and

conducted under these Consolidated Rules of Practice.

Hearing Clerk means the Hearing Clerk, Mail Code 1900, U.S.

Environmental Protection Agency, 401 M St. SW., Washington, DC 20460.

Initial Decision means the decision issued by the Presiding Officer

pursuant to Secs. 22.17(c), 22.20(b) or 22.27 resolving all outstanding

issues in the proceeding based upon the record of the proceedings out

of which it arises.

Party means any person that participates in a hearing as

complainant, respondent, or intervenor.

Permit means a permit issued under section 102 of the Marine

Protection, Research and Sanctuaries Act, section 402(a) of the Clean

Water Act, or section 3005(d) of the Resource Conservation and Recovery

Act, or authority to operate granted pursuant to section 3005(e) of the

Resource Conservation and Recovery Act.

Person includes any individual, partnership, association,

corporation, and any trustee, assignee, receiver or legal successor

thereof; any organized group of persons whether incorporated or not;

and any officer, employee, agent, department, agency or instrumentality

of the Federal Government, of any State or local unit of government, or

of any foreign government.

Presiding Officer means an individual who presides in an

administrative adjudication until an initial decision becomes final or

is appealed. The Presiding Officer shall be an Administrative Law

Judge, except where Secs. 22.04(b), 22.16(c) or 22.51 allow a Regional

Judicial Officer to serve as Presiding Officer.

Regional Administrator means, for a case initiated in an EPA

Regional Office, the Regional Administrator for that Region or any

officer or employee thereof to whom his authority is duly delegated.

Regional Hearing Clerk means an individual duly authorized to serve

as hearing clerk for a given region. Correspondence may be addressed to

the Regional Hearing Clerk, U.S. Environmental Protection Agency

(address of Regional Office--see Appendix A). For a case initiated at

EPA Headquarters, the term Regional Hearing Clerk means the Hearing

Clerk.

Regional Judicial Officer means a person designated by the Regional

Administrator under Sec. 22.04(b).

Respondent means any person proceeded against in the complaint.

(b) Terms defined in the Act and not defined in these Consolidated

Rules of Practice are used consistent with the meanings given in the

Act.

Sec. 22.04 Roles of the Environmental Appeals Board, Regional Judicial

Officer and Presiding Officer; disqualification, withdrawal, and

reassignment.

(a) Environmental Appeals Board. The Environmental Appeals Board:

rules on appeals from the decisions, rulings and orders of a Presiding

Officer in proceedings under these Consolidated Rules of Practice; acts

as Presiding Officer until the respondent files an answer in

proceedings under these Consolidated Rules of Practice commenced at EPA

Headquarters; and approves settlement of proceedings under these

Consolidated Rules of Practice commenced at EPA Headquarters. The

Environmental Appeals Board may refer any case or motion to the

Administrator when the Environmental Appeals Board, in its discretion,

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 references to the Environmental Appeals Board in

these Consolidated Rules of Practice shall be interpreted as referring

to the Administrator. If a case or motion is referred to the

Administrator by the Environmental Appeals Board, the Administrator may

consult with any EPA employee concerning the matter, provided such

consultation does not violate Sec. 22.08. Motions directed to the

Administrator shall not be considered except for motions for

disqualification pursuant to paragraph (d) of this section, or where

the Environmental Appeals Board has referred a matter to the

Administrator.

(b) Regional Judicial Officer. Each Regional Administrator shall

designate one or more Regional Judicial Officers to act as Presiding

Officer in proceedings under subpart I of these Consolidated Rules of

Practice, and to act as Presiding Officer until the respondent files an

answer in proceedings under these Consolidated Rules of Practice to

which subpart I does not apply. The Regional Administrator may also

delegate to one or more Regional Judicial Officers the authority to

approve settlement of proceedings pursuant to Sec. 22.18(b)(3). These

delegations will not prevent a Regional Judicial Officer from referring

any motion or case to the Regional Administrator. A Regional Judicial

Officer shall be an attorney who is a permanent or temporary employee

of the Agency or another Federal agency and who may perform other

duties within the Agency. A Regional Judicial Officer shall not have

performed prosecutorial or investigative functions in connection with,

nor have any interest in the outcome of, any case in which he serves as

a Regional Judicial Officer.

(c) Presiding Officer. The Presiding Officer shall conduct a fair

and impartial proceeding, assure that the facts are fully elicited,

adjudicate all issues, and avoid delay.

The Presiding Officer may:

(1) Conduct administrative hearings under these Consolidated Rules

of Practice;

(2) Rule upon motions, requests, and offers of proof, and issue all

necessary orders;

(3) Administer oaths and affirmations and take affidavits;

(4) Examine witnesses and receive documentary or other evidence;

(5) Order a party, or an officer or agent thereof, to produce

testimony, documents, or other non-privileged evidence, and failing the

production thereof without good cause being shown, draw adverse

inferences against that party;

(6) Admit or exclude evidence;

(7) Hear and decide questions of facts, law, or discretion;

(8) Require parties to attend conferences for the settlement or

simplification of the issues, or the expedition of the proceedings;

(9) Issue subpoenas authorized by the Act; and

(10) Do all other acts and take all measures necessary for the

maintenance of order and for the efficient, fair and impartial

adjudication of issues arising in proceedings governed by these

Consolidated Rules of Practice.

(d) Disqualification, withdrawal and reassignment. (1) The

Administrator, the Regional Administrator, the members of the

Environmental Appeals Board, the Regional Judicial Officer, or the

Presiding Officer may not perform functions provided for in these

Consolidated Rules of Practice regarding any matter in which they have

a financial interest or have any relationship with a party or with the

subject matter which would make it inappropriate for them to act. Any

party may at any time by motion to the Regional Administrator request

that the Regional Judicial Officer be disqualified from the proceeding.

Any party may at any time by motion to the Administrator, Regional

Administrator,

[[Page 9483]]

a member of the Environmental Appeals Board, or the Presiding Officer

request that he or she disqualify himself or herself from the

proceeding. If such a motion to disqualify the Regional Administrator

or Presiding Officer is denied, a party may appeal that ruling to the

Environmental Appeals Board. If a motion to disqualify a member of the

Environmental Appeals Board is denied, a party may appeal that ruling

to the Administrator. The Administrator, the Regional Administrator, a

member of the Environmental Appeals Board, the Regional Judicial

Officer, or the Presiding Officer may at any time withdraw from any

proceeding in which they deem themselves disqualified or unable to act

for any reason.

(2) If the Administrator, the Regional Administrator, the Regional

Judicial Officer, or the Presiding Officer is disqualified or withdraws

from the proceeding, a qualified individual who has none of the

infirmities listed in paragraph (d)(1) of this section shall be

assigned as a replacement. The Administrator shall assign a replacement

for a Regional Administrator who withdraws or is disqualified. Should

the Administrator withdraw or be disqualified, the Regional

Administrator from the Region where the case originated shall replace

the Administrator. If that Regional Administrator would be

disqualified, the Administrator shall assign a Regional Administrator

from another Region to replace the Administrator. The Regional

Administrator shall assign a new Regional Judicial Officer if the

original Regional Judicial Officer withdraws or is disqualified. The

Chief Administrative Law Judge shall assign a new Administrative Law

Judge if the original Administrative Law Judge withdraws or is

disqualified.

(3) The Chief Administrative Law Judge, at any stage in the

proceeding, may reassign the case to an Administrative Law Judge other

than the one originally assigned in the event of the unavailability of

the Administrative Law Judge or where reassignment will result in

efficiency in the scheduling of hearings and would not prejudice the

parties.

Sec. 22.05 Filing, service, and form of pleadings and documents;

business confidentiality claims.

(a) Filing of pleadings and documents. (1) The original and one

copy of each pleading or document intended to be part of the record

shall be filed with the Regional Hearing Clerk when the proceeding is

before the Presiding Officer, or filed with the Clerk of the Board when

the proceeding is before the Environmental Appeals Board. A pleading or

document is filed when it is received by the appropriate Clerk.

(2) When the Presiding Officer corresponds directly with the

parties, the original of the correspondence shall be filed with the

Regional Hearing Clerk. Parties who correspond directly with the

Presiding Officer shall file a copy of the correspondence with the

Regional Hearing Clerk.

(3) A certificate of service shall accompany each document filed or

served in the proceeding.

(b) Service of pleadings and documents. A copy of each pleading or

document filed in the proceeding shall be served on the Presiding

Officer and on each party.

(1) Service of complaint. (i) Complainant shall serve on

Respondent, or a representative authorized to receive service on

Respondent's behalf, a copy of the signed original of the complaint,

together with a copy of these Consolidated Rules of Practice. Service

shall be made personally, by certified mail, return receipt requested,

or by any reliable commercial delivery service that provides written

verification of delivery.

(ii)(A) Where respondent is a domestic or foreign corporation, a

partnership, or an unincorporated association which is subject to suit

under a common name, complainant shall serve an officer, partner, a

managing or general agent, or any other person authorized by

appointment or by Federal or State law to receive service of process.

(B) Where respondent is an officer or agency of the United States

complainant shall serve the officer or agency, or as otherwise

permitted by law. If the agency is a corporation, the complaint shall

be served as prescribed in paragraph (b)(1)(ii)(A) of this section.

(C) Where respondent is a State or local unit of government,

agency, department, corporation or other instrumentality, complainant

shall serve the chief executive officer thereof, or as otherwise

permitted by law. Where respondent is a State or local officer,

complainant shall serve such officer.

(iii) Proof of service of the complaint shall be made by affidavit

of the person making personal service, or by properly executed receipt.

Such proof of service shall be filed with the Regional Hearing Clerk

immediately upon completion of service.

(2) Service of pleadings and documents other than the complaint,

rulings, orders, and decisions. All pleadings and documents other than

the complaint, rulings, orders, and decisions shall be served

personally, by first class mail (including certified mail or return

receipt requested), or by any reliable commercial delivery service.

(c) Form of pleadings and documents. (1) Except as provided herein,

or by order of the Presiding Officer or of the Environmental Appeals

Board there are no specific requirements as to the form of pleadings

and documents.

(2) The first page of every pleading or other document (after the

filing of the complaint) shall contain a caption identifying the

respondent and the docket number. All legal briefs and legal memoranda

greater than twenty pages in length (excluding attachments) shall

contain a table of contents and a table of authorities with page

references.

(3) The original of any pleading or other document (other than

exhibits) shall be signed by the party filing or by its attorney or

other representative. The signature constitutes a representation by the

signer that he has read the pleading, letter or other document, that to

the best of his knowledge, information and belief, the statements made

therein are true, and that it is not interposed for delay.

(4) The first pleading or document filed by any person shall

contain the person's name, address, and telephone number, and those of

its attorney or representative, if any. Any changes in this information

shall be communicated promptly to the Regional Hearing Clerk, Presiding

Officer, and all parties to the proceeding. A party who fails to

furnish such information and any changes thereto shall be deemed to

have waived its right to notice and service in a proceeding under these

Consolidated Rules of Practice.

(5) The Environmental Appeals Board or the Presiding Officer may

exclude from the record any pleading or document which does not comply

with this paragraph (c) of this section. Written notice of such

exclusion, stating the reasons therefor, shall be promptly given to the

person submitting the document. Such person may amend and resubmit any

excluded document upon motion granted by the Environmental Appeals

Board or the Presiding Officer, as appropriate.

(d) Confidentiality of Business Information. (1) A person who

wishes to assert a business confidentiality claim with regard to any

information contained in any pleading or document to be filed in a

proceeding under these Consolidated Rules of Practice shall assert such

a claim in accordance with 40 CFR part 2 at the time that the pleading

or document is filed. A pleading or document filed without a claim of

business confidentiality shall

[[Page 9484]]

be available to the public for inspection and copying.

(2) Two versions of any pleading or document which contains

information claimed confidential shall be filed with the Regional

Hearing Clerk:

(i) One version of the pleading or document shall contain the

information claimed confidential. The cover page shall include the

information required under paragraph (c)(2) of this section and the

words ``Business Confidentiality Asserted''. The specific portion(s)

alleged to be confidential shall be clearly identified within the

document.

(ii) A second version of the pleading or document shall contain all

information except the specific information claimed confidential, which

shall be redacted and replaced with notes indicating the nature of the

information redacted. The cover page shall state that information

claimed confidential has been deleted and that a complete copy of the

pleading or document containing the information claimed confidential

has been filed with the Regional Hearing Clerk.

(3) Both versions of the pleading or document shall be served on

the Presiding Officer and the complainant. Both versions of the

pleading or document shall be served on any party, amicus, or

representative thereof, authorized to receive the information claimed

confidential by the person making the claim of confidentiality. Only

the redacted version shall be served on persons not authorized to

receive the confidential information.

(4) Only the second, redacted version shall be treated as public

information. An EPA officer or employee may disclose information

claimed confidential in accordance with paragraph (d)(1) of this

section only as authorized under 40 CFR part 2.

Sec. 22.06 Filing and service of rulings, orders and decisions.

All rulings, orders, decisions, and other documents issued by the

Regional Administrator or Presiding Officer shall be filed with the

Regional Hearing Clerk. All such documents issued by the Environmental

Appeals Board shall be filed with the Clerk of the Environmental

Appeals Board. Copies of such rulings, orders, decisions, or other

documents shall be served personally, by first class mail (including by

certified mail or return receipt requested) or any reliable commercial

delivery service, upon all parties by the Clerk of the Environmental

Appeals Board or the Regional Hearing Clerk, as appropriate.

Sec. 22.07 Computation and extension of time.

(a) Computation. In computing any period of time prescribed or

allowed in these Consolidated Rules of Practice, except as otherwise

provided, the day of the event from which the designated period begins

to run shall not be included. Saturdays, Sundays, and Federal holidays

shall be included. When a stated time expires on a Saturday, Sunday or

Federal holiday, the stated time period shall be extended to include

the next business day.

(b) Extensions of time. The Environmental Appeals Board or the

Presiding Officer may grant an extension of time for filing any

pleading or document: upon timely motion of a party to the proceeding,

for good cause shown, and after consideration of prejudice to other

parties; or upon its own initiative. Any motion for an extension of

time shall be filed sufficiently in advance of the due date so as to

allow other parties reasonable opportunity to respond and to allow the

Presiding Officer or Environmental Appeals Board reasonable opportunity

to issue an order.

(c) Service by mail or commercial delivery service. Service of the

complaint is complete when the return receipt is signed. Service of all

other pleadings and documents is complete upon mailing or when placed

in the custody of a reliable commercial delivery service. Where a

pleading or document is served by first class mail or commercial

delivery service, five (5) days shall be added to the time allowed by

these Consolidated Rules of Practice for the filing of a responsive

pleading or document.

Sec. 22.08 Ex parte discussion of proceeding.

At no time after the issuance of the complaint shall the

Administrator, the members of the Environmental Appeals Board, the

Regional Administrator, the Regional Judicial Officer, the 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, the Regional

Administrator, the Environmental Appeals Board, the Regional Judicial

Officer, 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 as argument made in the proceeding and shall be served upon

all other parties. The other parties shall be given an opportunity to

reply to such memorandum or communication. The requirements of this

section shall not apply to any Administrator, Regional Administrator,

member of the Environmental Appeals Board, Regional Judicial Officer,

or Presiding Officer who has formally recused himself from all

adjudicatory functions in a proceeding.

Sec. 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,

the Hearing Clerk, or the Environmental Appeals Board, as appropriate.

(b) The cost of duplicating documents shall be borne by the person

seeking copies of such documents. The Agency may waive this cost in its

discretion.

Subpart B--Parties and Appearances

Sec. 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 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.

Sec. 22.11 Intervention and amicus curiae.

(a) Intervention. Any person desiring to become a party to a

proceeding may move for leave to intervene. A motion for leave to

intervene that is filed after the exchange of information pursuant to

Sec. 22.19(a) shall not be granted unless the movant shows good cause

for its failure to file before such exchange of information. Any party

to the proceeding may file a response to a motion to intervene within

fifteen (15) days after service of the motion for leave to intervene.

The Presiding Officer shall grant leave to intervene in all or part of

the proceeding if: the movant claims an interest relating to the cause

of action; a final order may as a practical matter impair the movant's

ability to protect that interest; and the movant's interest is not

adequately represented by existing parties. The intervenor shall be

bound by any agreements, arrangements and other matters previously made

in the proceeding unless otherwise ordered

[[Page 9485]]

by the Presiding Officer or the Environmental Appeals Board for good

cause.

(b) Amicus Curiae. Any person who is not a party to a proceeding

may move for leave to file an amicus brief. The motion shall identify

the interest of the applicant and shall state the reasons why the

proposed amicus brief is desirable. If the motion is granted, the

Presiding Officer or Environmental Appeals Board shall issue an order

setting the time for filing such brief. Any party to the proceeding may

file a response to an amicus curiae brief within fifteen (15) days

after service of the amicus curiae brief.

Sec. 22.12 Consolidation and severance.

(a) Consolidation. The Presiding Officer may consolidate any or all

matters at issue in two or more proceedings subject to these

Consolidated Rules of Practice where: there exist common parties or

common questions of fact or law; consolidation would expedite and

simplify consideration of the issues; and consolidation would not

adversely affect the rights of parties engaged in otherwise separate

proceedings. Where a proceeding subject to the provisions of subpart I

of this part is consolidated with a proceeding to which subpart I does

not apply, the procedures of subpart I of this part shall not apply to

the consolidated proceeding.

(b) Severance. The Presiding Officer may, for good cause, order any

proceedings severed with respect to any or all parties or issues.

Subpart C--Prehearing Procedures

Sec. 22.13 Commencement of a proceeding.

(a) Any proceeding subject to these Consolidated Rules of Practice

is commenced by filing with the Regional Hearing Clerk a complaint

conforming to Sec. 22.14.

(b) Notwithstanding paragraph (a) of this section, where the

parties agree to settlement of one or more causes of action before the

filing of a complaint, a proceeding not subject to the public notice

and comment provisions of Sec. 22.45 may be simultaneously commenced

and concluded by the issuance of a consent agreement and consent order

pursuant to Sec. 22.18(b)(2) and (3).

Sec. 22.14 Content and amendment of the complaint.

(a) Content of complaint. Each complaint 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, implementing

regulations, permit or order which respondent is alleged to have

violated;

(3) A concise statement of the factual basis for alleging the

violation;

(4) A description of all relief sought, including one or more of

the following:

(i) The amount of the civil penalty which is proposed to be

assessed, and a brief explanation of the proposed penalty;

(ii) Where a specific penalty demand is not made, a brief

explanation of the severity of each violation alleged and a citation to

the statutory penalty authority applicable for each violation alleged

in the complaint;

(iii) A request for revocation, termination or suspension of all or

part of a permit, and a statement of the terms and conditions of such

revocation, termination or suspension; or

(iv) A request for a compliance or corrective action order and a

statement of the terms and conditions thereof;

(5) Notice of respondent's right to request a hearing on any

material fact alleged in the complaint, or on the appropriateness of

any proposed penalty, compliance or corrective action order, or permit

revocation, termination or suspension; and

(6) Notice if subpart I of this part applies to such hearing.

(b) Rules of practice. A copy of these Consolidated Rules of

Practice shall accompany each complaint served.

(c) Amendment of the complaint. The complainant may amend the

complaint once as a matter of right at any time before the answer is

filed. Otherwise the complainant may amend the complaint only upon

motion granted by the Presiding Officer. Respondent shall have twenty

(20) additional days from the date of service of the amended complaint

to file its answer.

(d) Withdrawal of the complaint. The complainant may withdraw the

complaint, or any part thereof, without prejudice one time before the

answer has been filed. After one withdrawal before the filing of an

answer, or after the filing of an answer, the complainant may withdraw

the complaint, or any part thereof, without prejudice only upon motion

granted by the Presiding Officer.

Sec. 22.15 Answer to the complaint.

(a) General. Where respondent: Contests any material fact upon

which the complaint is based; contends that the proposed penalty,

compliance or corrective action order, or permit revocation,

termination or suspension, as the case may be, is inappropriate; or

contends that it is entitled to judgment as a matter of law, it shall

file an original and one copy of a written answer to the complaint with

the Regional Hearing Clerk and shall serve copies of the answer on all

other parties. Any such answer to the complaint must be filed with the

Regional Hearing Clerk within thirty (30) days after service of the

complaint.

(b) Contents of the answer. The answer shall clearly and directly

ad

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