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Electronic Code of Federal Regulations

e-CFR data is current as of December 6, 2019

Title 40Chapter ISubchapter CPart 66 → Subpart J


Title 40: Protection of Environment
PART 66—ASSESSMENT AND COLLECTION OF NONCOMPLIANCE PENALTIES BY EPA


Subpart J—Supplemental Rules for Formal Adjudicatory Hearings


Contents
§66.91   Applicability of supplemental rules.
§66.92   Commencement of hearings.
§66.93   Time limits.
§66.94   Presentation of evidence.
§66.95   Decisions of the Presiding Officer; Appeal to the Administrator.

§66.91   Applicability of supplemental rules.

The Supplemental Rules in this subpart, in conjunction with the Consolidated Rules of Practice (40 CFR part 22) shall govern all hearings held under this part. To the extent that the provisions of these Supplemental Rules or any other provision of this part are inconsistent with the Consolidated Rules, the provisions of this part shall govern.

§66.92   Commencement of hearings.

(a) The provisions of 40 CFR 22.08 (Consolidated Rules of Practice) shall become applicable when the Administrator grants a hearing.

(b) Upon granting a hearing the Administrator shall immediately transmit to the appropriate Regional Hearing Clerk two copies of the notice granting the hearing and:

(1) In the case of a hearing pursuant to §66.42, two copies of the notice of noncompliance under §66.11 (or the revocation notice under §66.34) and of the petition of the owner or operator under §66.13, together with supporting documents; and

(2) In the case of a hearing pursuant to §66.53 or §66.73, two copies of the penalty calculation of the source owner or operator provided pursuant to §66.13(a) or §66.72, and of any Agency recalculation pursuant to §66.51(a)(2) or §66.72(b)(2), and of the petition of the source owner or operator for reconsideration pursuant to §66.52 or §66.73, together with supporting documents.

(3) The Regional Hearing Clerk shall open and maintain the official file of the proceeding upon receipt of the documents referred to in paragraphs (b)(1) and (2) of this section.

(c) Upon granting a hearing the Administrator shall request the Chief Administrative Law Judge to designate an Administrative Law Judge to serve as the Presiding Officer. The Chief Administrative Law Judge shall make this designation within seven days of receiving the request, and shall notify the Regional Hearing Clerk of his action. The Regional Hearing Clerk shall forward to the Presiding Officer one set of the documents described in paragraph (b).

§66.93   Time limits.

The Presiding Officer upon designation shall notify the parties and shall, if appropriate, schedule a prehearing conference (or alternative procedures) under 40 CFR 22.19 and shall notify the parties of the date of hearing under 40 CFR 22.21. The Presiding Officer shall issue an initial decision no later than ninety days after the hearing is granted, unless an extension of the hearing schedule or of the deadline for decision is agreed to by the parties. To that end, the Presiding Officer may establish such deadlines as are reasonable and necessary. Failure to issue a decision within 90 days or further extended deadline (whether or not by consent) shall not affect the validity of the proceedings.

§66.94   Presentation of evidence.

(a) In hearings pursuant to §66.42 EPA shall present evidence of violation of applicable legal requirements. The source owner or operator shall then present any rebuttal evidence.

(b) In hearings under §66.42 the source owner or operator shall present evidence of entitlement to an exemption. EPA shall then present any rebuttal evidence.

(c) In hearings under §§66.54 and 66.73 EPA shall present evidence that its calculation or revisions of the source owner or operator's penalty calculations are correct. The source owner or operator shall then present any rebuttal evidence.

(d) Each matter of controversy shall be determined by the Presiding Officer upon a preponderance of the evidence.

(e) Any documentation submitted pursuant to §66.92(b) shall automatically be received into evidence in the hearing.

§66.95   Decisions of the Presiding Officer; Appeal to the Administrator.

(a) The Presiding Officer shall dispose of the issues raised in the hearing in a single written decision. Such decision shall terminate the Presiding Officer's consideration of those issues.

(b) Penalty calculations and payment schedules, if any, established by the decision of the Presiding Officer shall be based solely on the parameters, terms and conditions of the Technical Support Document, Manual, and Computer Program.

(c) An appeal to the Environmental Appeals Board from a decision of the Presiding Officer shall be made by petition filed within twenty (20) days from receipt by a party of the Presiding Officer's decision. The Environmental Appeals Board shall rule on the appeal within 30 days of receipt of a petition. No appeal may be made before receipt of the decision of the Presiding Officer.

[45 FR 50110, July 20, 1980, as amended at 57 FR 5329, Feb. 13, 1992]

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