40 CFR 222.11 - Conduct of adjudicatory hearings.

§ 222.11 Conduct of adjudicatory hearings.
(a) Parties. Any interested person may at a reasonable time prior to the commencement of the hearing submit to the Presiding Officer a request to be admitted as a party. Such request shall be in writing and shall set forth the information which would be required to be submitted by such person if he were requesting an adjudicatory hearing. Any such request to be admitted as a party which satisfies the requirements of this paragraph (a) shall be granted and all parties shall be informed at the commencement of the adjudicatory hearing of the parties involved. Any party may be represented by counsel or other authorized representative. EPA staff representing the Administrator or Regional Administrator who took action with respect to the permit application shall be deemed a party.
(b) Filing and service.
(1) An original and two (2) copies of all documents or papers required or permitted to be filed shall be filed with the Presiding Officer.
(2) Copies of all documents and papers filed with the Presiding Officer shall be served upon all other parties to the adjudicatory hearing.
(c) Consolidation. The Administrator, or the Regional Administrator in the case of a hearing arising within his Region and for which he has been delegated authority hereunder, may, in his discretion, order consolidation of any adjudicatory hearings held pursuant to this section whenever he determines that consolidation will expedite or simplify the consideration of the issues presented. The Administrator may, in his discretion, order consolidation and designate one Region to be responsible for the conduct of any hearings held pursuant to this section which arise in different Regions whenever he determines that consolidation will expedite or simplify the consideration of the issues presented.
(d) Pre-hearing conference. The Presiding Officer may hold one or more prehearing conferences and may issue a prehearing order which may include without limitation, requirements with respect to any or all of the following:
(1) Stipulations and admissions;
(2) Disputed issues of fact;
(3) Disputed issues of law;
(4) Admissibility of any evidence;
(5) Hearing procedures including submission of oral or written direct testimony, conduct of cross-examination, and the opportunity for oral arguments;
(6) Any other matter which may expedite the hearing or aid in disposition of any issues raised therein.
(e) Adjudicatory hearing procedures.
(1) The burden of going forward with the evidence shall:
(i) In the case of any adjudicatory hearing held pursuant to § 222.10(b)(1), be on the person filing a request under § 222.10(a) as to each issue raised by the request; and
(ii) In the case of any adjudicatory hearing held pursuant to § 223.2 or pursuant to part 226, be on the Environmental Protection Agency.
(2) The Presiding Officer shall have the duty to conduct a fair and impartial hearing, to take action to avoid unnecessary delay in the disposition of proceedings, and to maintain order. He shall have all powers necessary or appropriate to that end, including without limitation, the following:
(i) To administer oaths and affirmations;
(ii) To rule upon offers of proof and receive relevant evidence;
(iii) To regulate the course of the hearing and the conduct of the parties and their counsel;
(iv) To consider and rule upon all procedural and other motions appropriate to the proceedings; and
(v) To take any action authorized by these regulations and in conformance with law.
(3) Parties shall have the right to cross-examine a witness who appears at an adjudicatory hearing to the extent that such cross-examination is necessary or appropriate for a full disclosure of the facts. In multi-party proceedings the Presiding Officer may limit cross-examination to one party on each side if he is satisfied that the cross-examination by one party will adequately protect the interests of other parties.
(4) When a party will not be unfairly prejudiced thereby, the Presiding Officer may order all or part of the evidence to be submitted in written form.
(5) Rulings of the Presiding Officer on the admissibility of evidence, the propriety of cross-examination, and other procedural matters, shall be final and shall appear in the record.
(6) Interlocutory appeals may not be taken.
(7) Parties shall be presumed to have taken exception to an adverse ruling.
(8) The proceedings of all hearings shall be recorded by such means as the Presiding Officer may determine. The original transcript of the hearing shall be a part of the record and the sole official transcript. Copies of the transcript shall be available from the Environmental Protection Agency in accordance with 40 CFR part 2.
(9) The rules of evidence shall not apply.
(f) Decision after adjudicatory hearing.
(1) Within 30 days after the conclusion of the adjudicatory hearing, or within such additional period as the Administrator or the Regional Administrator, as the case may be, may grant to the Presiding Officer for good cause shown, the Presiding Officer shall submit to the Administrator or the Regional Administrator, as the case may be, proposed findings of fact and conclusions of law, his recommendation with respect to any and all issues raised at the hearing, and the record of the hearing. Such findings, conclusions and recommendations shall contain a brief statement of the basis for the recommendations. Copies of the Presiding Officer's proposed findings of fact, conclusions of law and recommendations shall be provided to all parties to the adjudicatory hearing on request, without charge.
(2) Within 20 days following submission of the Presiding Officer's proposed findings of fact, conclusions of law and recommendations, any party may submit written exceptions, no more than 30 pages in length, to such proposed findings, conclusions and recommendations and within 30 days following the submission of the Presiding Officer's proposed findings, conclusions and recommendations any party may file written comments, no more than 30 pages in length, on another party's exceptions. Within 45 days following the submission of the Presiding Officer's proposed findings, conclusions and recommendations, the Administrator or the Regional Administrator, as the case may be, shall make a determination with respect to all issues raised at such hearing and shall affirm, reverse or modify the previous or proposed determination, as the case may be. Notice of such determination shall set forth the determination for each such issue, shall briefly state the basis therefor and shall be given by mail to all parties to the adjudicatory hearing.

Title 40 published on 2013-07-01

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