United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
&EPA
DIRECTIVE NUMBER: 9936.2
TITLE: Final Administrative Hearing Procedures for
RCRA Section 3008(h) Orders
APPROVAL DATE:
EFFECTIVE DATE:
ORIGINATING OFFICE:
IX! FINAL
D DRAFT
LEVEL OF DRAFT
03 A — Signed by AA or DAA
D B — Signed by Office Director
DC — Review & Comment
REFERENCE (other documents):
WER OS WER OS WER
DIRECTIVE DIRECTIVE Dl
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&EPA
United Stales Envirc — -—-' °r::»r - - • - -. —
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OSWER Directive Initiation Reauest
1. Directive Number
9936.2
2. Originator Information
Name of Contact Person
Steiner, Virginia
Mail Code
WH-527
Office
OWPE
Telephone Number
475-9329
J. Title
Final administrative hearing procedures for RCRA section 3008(h) orders
4. Summary of Directive /Include brief statement ol purpose)
administrative hearing procedures for orders requiring corrective action under RCRA
section 3008(h)
5. Keywords
a'dmiriistfative orders; administrative hearing procedures; "corrective action
6a. Does this Directive Supersede Previous Directives)? Q Yes g] No What directive (number, title)
b. Does It Supplement Previous Directivett)? Q Yes Q No What Directive (number, title)
7,DraflL«vel
LJ A — Signed by AA/DAA LJ B — Signed by Office Director Q C — For Review & Comment U In Development
This Request Meets OSWER Directives System Format
18. Signature of Lead Office Directives Coordinator
^
R). Name and Title of Approving Official
Date
Date
OS WER OSWER
DIRECTIVE DIRECTIVE L
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, O.C. 20460
FEB I 9 1987
9936.2
MEMORANDUM
SUBJECT: Final Administrative Hearing Procedures for RCRA
Section 3008(h) Orders
FROM: Thomas L. Adams, Jr. ^**~ V- ,)s&»~^ \"
Assistant Administrator \
for Enforcement and Compliance MonitorfcngN
. r/ **^~ ^—*
^_ J/*-Ji&T.
J. Winston Porter
Assistant Administrator
for Solid Waste and Emergency Response
TO: Regional Administrators
Regional Counsels
Regional Waste Management
Division Directors
Office of General Counsel
We are hereby transmitting to you the final version of the
Administrative Hearing Procedures for RCRA Section 3008(h)
Orders (and related General Guidance). These procedures reflect
the input of a number of commenters from the Regions and other
Headquarters offices to whom we extend our thanks.
In response to suggestions made on the draft procedures
circulated for comment on November 21, 1986, we have made several
changes in the procedures. These include: (1) allowing the
Presiding Officer and Regional Administrator to engage in ex
parte contacts, while insuring that any new and relevant inForma-
tion glean«6 from such contacts is served on opposing parties,
who will hove an opportunity to respond to same; (2) adopting
alternative language in the draft of the "study order" procedures
which will permit respondents to ask questions during the hearing
only when the Presiding Officer in his discretion deems it appro-
priate; (3) returning to earlier "remedy order" procedure language
which requires that the Agency respond to written questions in 14
(rather than 30) days, so as to insure that Agency responses are
available before the hearing; (4) allowing use of the study order
procedures for orders directing that limited interim measures in
conjunction with studie-s be undertaken; and (5) restricting
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9936-2
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respond«nt-'» ability to make major evidentiary submissions at the
hearing ratimr than during prehearing procedures while insuring
that the Agency may seek leave to respond after the hearing to
late submissions. We have also included in the "General Guidance"
which accompanies the Administrative Hearing Procedures a require-
ment that the public be afforded an opportunity to comment on the
Agency's proposed remedy and be given notice of the final remedy
before it is implemented.
Please also note that these procedures require that initial
corrective action orders be issued by a Regional official other
than the Regional Administrator. This requirement insures that
the Regional Administrator, who will issue the final Agency
decision affirming, modifying, or withdrawing the initial order,
is not "tainted" as a decisionmaker by reason of having earlier
performed a prosecutorial function in the same proceeding.
Accordingly, it will be necessary for Regional Administrators,
who have not already done so, to redelegate authority to issue
initial (and final) ^-corrective action orders.
Several commenters have asked whether a request for a hear-
ing under these procedures would prevent an order from becoming
effective, or, stated differently, whether an initial corrective
action order may be enforced after a request for hearing, but
before issuance of the Regional Administrator's final decision.
The Office of General Counsel has determined that, in light of
the language of RCRA Section 3008(b) which indicates that an
order becomes final unless the respondent requests a hearing, the
order may not be enforced once a hearing is requested until a
final Agency decision on the matter is issued.
In developing these administrative hearing procedures it has
become clear that the regulations in 40 CFR Part 22 governing
adjudicatory hearings on RCRA Section 3008(a) orders for injunctive
relief and/or penalties, may in certain respects exceed minimum
due process requirements. Accordingly, we have decided to re-
evaluate these regulations to determine whether, as they apply to
certain RCRA Section 3008(a) and similar proceedings, they are
unnecessarily cumbersome or burdensome. Your thoughts on these
questioMrvill be invited at a later date.
Attachment
cc: Lisa Friedman
Bruce Weddle
RCRA Enforcement Branch Chiefs, Regions I-X
1 The procedures contemplate that final orders would be signed
by the same official who issued the initial order.
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9936.2
GENERAL GUIDANCE ON ISSUANCE OF RCRA SECTION 3008(h) ORDERS
1. To satisfy the public hearing requirement of Section
3008(b) , unilateral RCRA administrative orders issued pursuant to
Section 300 8 (h) trust provide the named person or persons with the
opportunity for a hearing. This guidance document and the
attached hearing procedures set forth the procedures for issuing
an administrative order for corrective action and conducting a
hearing, except for hearings for the following types of orders:
(1) Section 3008(h) orders that are combined in one order with
claims under Section 3008(a); (2) Section 3008(h) orders that
include a suspension or revocation of authorization to operate
under Section 3005(e); and (3) orders issued under Section
3008(h) seeking penalties under Section 3008(h)(2) for noncorapli-
ance with a Section 3008(h) order. Hearings for the three above-
outlined categories of orders must be held under 40 CFR Part 22.
The procedures in 40 CFR Part 22 do not apply to other orders
issued under Section 3008(h).
2. Except in unusual circumstances, for orders not issued
on consent, separate orders will be issued for distinct phases of
work rather than a single, multiple phase order. Consent orders
nay also be issued in a similar fashion.
Accordingly, when a particular corrective action is likely
ultimately to involve studies, interim measures, and remedy, the
first order should address the studies (including both the RCRA
Facility. Investigation, during which the nature and extent of
any releases are characterized, and the Corrective Measures
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Study, during which proposals for remediation are developed) ant
any known interim measures. A subsequent order(s) should addrd
additional actions to be undertaken. A copy of the "Administra-
tive Hearing Procedures for RCRA Section 3008(h) Orders" (not to
include the "General Guidance on Issuance of RCRA Section 3008(h)
Orders") should accompany each initial administrative order. A
hearing under these procedures may be requested by a respondent
whenever a new order is issued.
3. Prior to the issuance of an initial administrative order
or a final administrative order on consent, the EPA office issuing
the order shall prepare an administrative record supporting the
findings of fact, determinations of law and relief in the initial
order or final order on consent. The administrative record must
have an index and be available for review during normal business.
hours, after issuance of an order. The order must state when a^P
where the record is available for review.
4. The record shall include, subject to applicable law
restricting the public disclosure of confidential information and
deliberative material, all relevant documents and oral information
(which has been reduced to writing) which the Agency considered
in the process of issuing the order, including: (1) EPA records
on conditions at the facility, such as inspection reports, sampl-
ing and analytical data, business records, and photographs;
(2) other reports and internal Agency documents used in generating
or supporting the enforcement action; (3) copies of all relevant
correspondence between EPA and the respondent; (4) written records
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9936-2
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of relevant conferences and telephone conversations between EPA
and the respondent; (5) copies of correspondence between EPA and
State or other federal agencies pertaining to the enforcement
action; and (6) comments submitted by the public during the public
comment period on the RCRA Facility Investigation/Corrective
Measures Study results and proposed remedy, EPA's responses to
significant comments, and any statement of the basis and purpose
of the proposed corrective measures prepared by EPA.
5. Following the respondent's submission of its report on
the RCRA Facility Investigation and Corrective Measures Study the
Agency shall develop a proposed plan for corrective measures. The
Agency shall prepare a document that summarizes the data relating
to releases, outlines the recommendations contained in the
Corrective Measures Study, and indicates briefly why EPA has
adopted the proposed plan for corrective measures.
The Agency shall then (1) publish a notice and brief analysis
of the proposed plan for corrective measures and make such plan
available to the public, and (2) provide a reasonable opportunity
(ordinarily 30-45 days) for submission of written comments and
(in the event the Regional Administrator deems it appropriate) a
public meeting on the plan. If the Regional Administrator denies
a request for a public meeting, he shall explain his decision in
writing.
The Agency shall, as necessary, modify its proposed plan for
corrective measures on the basis of written and oral comments
received. Prior to issuance of the initial order for corrective
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9936*2
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roeasures the Agency shall prepare a responsiveness summary
indicating whether and why it has accepted or rejected any sig-
nificant comments. Following finalization of the order tor
corrective measures but before implementation of corrective
measures, notice of the final plan for corrective measures shall
be published and the plan shall be made available to the public.
Where, in the interest of protecting human health and the
environment, it is important that interim corrective measures be
implemented quickly, no advance opportunity for written or oral
comments will have to be afforded to the public. Here, EPA will
simply provide substantially contemporaneous notice to the public
of interim measures implemented. It is further contemplated
that, where the Agency has directed the owner/operator to under-
take certain remedial investigations but later determines that no
corrective measures are required, the public shall have an oppor-
tunity to comment on this determination to the same extent as it
may comment on a proposed plan for corrective measures.
Public involvement beyond that provided for herein is
allowable at the discretion of the Regional Administrator. If a
facility is on the National Priorities List, those additional
procedures for public participation contained in the National
Contingency Plan at 40 C.F.R, 300 et_ seq. must be followed.
6. A flow chart of the 3008(h) corrective action process
indicating the points at which opportunities for public involve-
ment or notice will normally occur is attached.
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9936-2
ADMINISTRATIVE HEARING PROCEDURES FOR RCRA SECTION 3008(h) ORDERS
I.
1. An administrative action under Section 3008(h) of the
Resource Conservation and Recovery Act (RCRA) shall be commenced
by issuance of an administrative order. When the order is issued
unilaterally, the order shall be referred to as an initial admin-
istrative order and may be referenced as a proceeding under
Section 3008(hK Whe_n the .order has-become ef-fective, either
after issuance of a final order following a final decision by the
Regional Administrator or after thirty days from issuance if no
hearing is requested, the order shall be referred to as a final
administrative order. Where the order is agreed to by the parties,
the order shall be denominated as a final administrative order on
consent.
2. The initial administrative order shall be executed by
an authorized official of EPA (petitioner), other than the Regional
Administrator or the Assistant Administrator for the Office of
Solid Waste and Emergency Response. For orders issued by EPA
Headquarters, rather than by a Regional office, all references
in these procedures to the Regional Administrator shall be under-
stood to be to the Assistant Administrator for the Office of
Solid Waste and Emergency Response or his delegatee.
3. A Clerk shall be designated by the Regional Administra-
tor to receive all initial orders, final orders, responses,
memoranda, and documents regarding the order and to maintain the
official record and docket.
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4. The original and one copy of Che initial administrative
order, the final decision and the final administrative order, an
one copy of the administrative record and an index thereto must
be filed with the Clerk designated for Section 3008(h) orders.
In addition, all memoranda and documents submitted in the proceed
ing shall be filed with the Clerk.
5. The Clerk (or some other designated EPA employee) shall
arrange for the effectuation of service of the initial administra
tive order, the final decision, and final administrative order.
Service of a copy of the initial administrative order together
with a copy of these procedures, the final decision, or a final
administrative order, shall be made personally or by certified
mail, return receipt requested, or, if personal service can not
be effectuated or certified mail is returned refused or unsigned,
by regular mail, on the respondent or his representative. The
Clerk shall serve other documents from the Presiding Officer by
regular mail.
6. Service of all documents, filed by the parties, shall
be made by the parties or their representatives on other parties
or their representatives and may be made by regular mail, with
the original filed with the Clerk.
7. Service of the initial administrative order and final
administrative order is complete upon receipt by respondent
(or the respondent's agent, attorney, representative or other
person employed by respondent and receiving such service),
personally or by certified mail, or upon mailing by regular
mail if personal service or certified nail can not be accom-
plished, in accordance with Paragraph 5. Service of all other
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pleadings and documents is complete upon mailing, except as
provided in Paragraphs 15 and 25.
8. The initial administrative order becomes a final admin-
istrative order thirty (30) days after service of the order,
unless the respondent files with the Clerk within thirty (30)
days after service of the order, a response to the initial order
order and requests a hearing.
9. The response to the initial order and request for a hear-
ing must "be in writing and mailed to, or personally served on,
the Clerk of the Region which issued the order.
10. The response to the initial order shall specify each
factual, or legal determination, or relief provision in the
initial order the respondent disputes.
11. Upon receipt of a request for a hearing, the Regional
Administrator shall designate a Presiding Officer to conduct the
hearing and preside over the proceedings.
12. The respondent may request an informal settlement con-
ference at any time by contacting the appropriate EPA employee,
as specified in the initial administrative order. A request for
an informal conference will not affect the respondent's obligation
to timely request a hearing.
Whether or not the respondent requests a hearing, the parties
may confer informally concerning any aspect of the order. The
respondent and respondent's representatives shall generally be
allowed the opportunity at an informal conference to discuss with
the appropriate Agency technical and legal personnel all aspects
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of the order, in particular the basis for the determination that
a release has occurred and the appropriateness of the ordered
corrective action.
13. If the initial order directs the respondent (a) to
undertake only a RCRA Facility Investigation and/or Corrective
Measures Study, which may include monitoring, surveys, testing,
information gathering, analyses, and/or studies (including studies
designed to develop recommendations for appropriate corrective
measures), or (b) to undertake such investigations and/or studies
and interim measures, which are neither costly nor technically
complex and are necessary to protect human health and the environ-
ment prior to development of a permanent remedy, the hearing
procedures set forth in Section II, A., Paragraphs 14 through 19,
shall be employed for any requested hearing. If the respondent
seeks a hearing on an order directing that corrective measures or
.such corrective measures together with studies be undertaken, the
hearing procedures set forth in Section II, B. , Paragraphs 20
through 30, shall be employed. The procedures contained in
Section I, Paragraphs 1 through 13 and Section III, Paragraphs 31
through 33 shall be followed regardless of whether the initial
order directs respondent to undertake an investigation or1 imple-
ment corrective measures.
II.
A. Hearings on Orders Requiring Investigations or Studies
14. The Presiding Officer shall be any employee of the Agency
designated by the Regional Administrator other than a person
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who drafted or participated in drafting the order in question.
If, after issuance of the initial order and prior to issuance
of the final order, the Regional Administrator, Presiding Officer,
or any person who will advise these officials in the decision on
the case receives from or on behalf of any party in an ex parte
communication information which is relevant to the decision on
the case and to which other parties have not had an opportunity
to respond, a summary of such information shall be served on all
other parties, who shall have an opportunity to reply to same
within ten (10) days of service of"the summary.
15. The Presiding Officer shall establish the date and time
for the requested public hearing. Subject to Paragraph 16, the
hearing shall be scheduled and held within thirty (30) days of
the Agency's receipt of the request for a public hearing.
At any time up to five (5) business days before the hearing
respondent may, but is not required to, submit for inclusion in
the administrative record information and argument supporting
respondent's positions on the facts, law, and relief, as each
relates to the order in question. All factual representations
made by respondent must be in writing by affidavit. A copy of
any information or argument submitted by respondent shall be
served such that the Clerk and petitioner receive sane at least
five (5) business days before hearing.
16. The Presiding Officer may grant an extension of time
for the conduct of the hearing, upon written request of either
party, for good cause shown, and after consideration of any
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prejudice to other parties. The Presiding Officer may not
extend the date by which the request for hearing is due under
paragraph 8.
17. The hearing shall be held in the city in which the
relevant EPA Regional Office is located, unless the Presiding
Officer determines that there is good cause to hold it in another
location.
18. The Presiding Officer shall establish the agenda for
the hearing and conduct the hearing in a tair and impartial way,
taking action as needed to avoid unnecessary delay, exclude
redundant material, and maintain order during the proceedings.
Representatives of EPA shall introduce the administrative record
and be prepared to summarize the basis for the order. The
respondent shall have a reasonable opportunity to address relevant
issues and present its views through legal counsel or technical
advisors. The Presiding Officer may also allow technical and
legal discussions and interchanges between the parties, including
responses to questions to the extent deemed appropriate. It is
not the Agency's intent to provide EPA or respondent an oppor-
tunity to engage in direct or cross examination of witnesses.
Where respondent can demonstrate that, through no fault of its
own, certain documents supportive of its position could not have
been submitted before hearing in accordance with the requirements
of Paragraph 15, it may submit such documents at hearing. Other-
wise no new documentary support may be submitted at hearing.
Unless otherwise directed by the Presiding Officer, factual
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representations made by respondent shall be in writing by
affidavit. The Presiding Officer may upon reauest grant petitioner
leave to respond to submissions made by respondent pursuant to
this paragraph or Paragraph 15.
19. As soon as practicable after the conclusion of the
hearing a written summary of the proceeding shall be prepared.
This summary shall, at a minimum, identify (a) the dates of and
known attendees at the hearing, and (b) the bases upon which the
respondent contested the terms of the order. The summary must
be signed by the Presiding Officer.
The Presiding Officer will evaluate the entire administrative
record and, on the basis of that review and the representations
of EPA and respondent at the hearing, shall prepare and file a
statement recommending to the Regional Administrator that the
initial order be modified, withdrawn, or issued without modifica-
tion. The statement must address all significant arguments
raised by respondent and provide support, through citation to
material contained in the record or adduced at the hearing, for
any decision to modify a term of the order, withdraw the order,
or issue the order without change.
The statement shall be based on the administrative record,
including the hearing and supplemental submissions. If the
Presiding Officer finds that there is not adequate support in
the record for the initial order, the Presiding Officer may
recommend that the order be modified and issued on terms that are
supported by the record, or withdrawn.
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9936.2
B. Hearings on Orders Requiring Corrective Measures
20. The Presiding Officer shall be either the Regional
Judicial Officer, or another attorney employed by the Agency who
has had no prior connection to the Section 3008(h) initial order
that is the subject of the proceeding.
If, after issuance of the initial order and prior to issuance
of the final order, the Regional Administrator, Presiding Officer,
or any person who will advise these officials in the decision on
the case receives frotn or on behalf of any party in an ex parte
communication information which is relevant to the decision on the
case and to which other parties have not had an opportunity to
respond, a summary of such information shall be served on all other
parties, who shall have an opportunity to reply to same within
ten (10) days of service of the summary.
21. The Presiding Officer shall establish an expeditious
schedule for: (a) the submission by respondent of a memorandum,
with appropriate affidavits and exhibits, stating and supporting
respondent's position on the facts, law and relief, specifying
the bases upon and manner in which such determinations or relief
provisions, if erroneous, require modification or withdrawal of
the order; (b) submission of a response by EPA; and (c) a public
hearing. Subject to paragraph 22., a hearing shall be scheduled
within 45 days of the order setting the schedule.
22. The Presiding Officer, as appropriate, may grant an exten
sion of time for the filing of any document, other than a request
for a hearing under paragraph 8, or may grant an extension of
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time for the conduct of the hearing, upon written request of
either party, for good cause shown and after consideration of any
prejudice to other parties.
23. In accordance with the schedule set by the Presiding
Officer, the respondent shall file a memorandum stating and
supporting respondent's position on the facts, law and relief.
The memorandum must identify each factual allegation and all
issues regarding appropriateness of the t.e.rms of the relief in
the initial order that respondent contests and for which
respondent requests a hearing. The memorandum must clearly state
respondent's position with respect to each such issue. Respondent
must also include any proposals for modification of the order.
Respondent must submit affidavits and exhibits which support any
of its factual contentions on relief and defenses. The memorandum
shall also present any arguments on the legal conclusions con-
tained in the order.
24. The respondent may file a request with the Presiding
Officer for permission to submit written questions to the EPA
Regional Office issuing the order concerning issues of material
fact in the order. Requests shall be accompanied by the proposed
questions. In most instances, no more than twenty-five (25)
questions, including subquestions and subparts, may be posed.
The request and questions must be submitted to the Presiding
Officer at least twenty-one (21) days before the hearing.
The Presiding Officer may direct EPA to respond to such
questions as he designates, if he determines that such questions
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are required for full disclosure and adequate resolution of the
facts. No questions shall be allowed regarding matters of policy
or privileged internal communications relating to the deliberative
process. The Presiding Officer shall grant, deny, or modify such
requests expeditiously. If a request is granted, the Presiding
Officer may revise questions and may limit the number and scope of
questions. Questions may be deleted or revised in the discretion
of the Presiding Officer for reasons, which may include the fact
that he finds the questions to be irrelevant, redundant, un-
neccessary, or an undue burden on the Agency. The Presiding
Officer shall transmit the questions as submitted or as modified
to EPA. EPA shall respond to the questions within fourteen (14)
calendar days of service of the questions by the Presiding
Officer, unless an extension is granted.
25. The Presiding Officer shall have the discretion to orde:
either party to submit additional information in whatever form he
deems appropriate. The Presiding Officer may issue subpoenas for
the attendance and testimony of persons and the production of
relevant papers, books, and documents. Since these hearing
procedures provide elsewhere that the parties are not to engage
in direct or cross examination of witnesses and must make any
factual representations in writing by affidavit, the subpoena
power is to serve only as an adjunct to the Presiding Officer's
authority to ask questions and otherwise take steps to clarify
factual matters which are in dispute. Upon request of the
respondent, the Presiding Officer may, in his discretion, allow
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submittal by the respondent of additional information in support
of its claim, if it is received by the Clerk and petitioner at
least five (5) business days before the hearing.
26. The hearing shall be held in the city in which the
relevant EPA Regional Office is located, unless the Presiding
Officer determines that there is good cause to hold it in
another location.
27. The Presiding JDff-ice-r shall conduct the hearing. The
Presiding Officer shall conduct a fair and impartial hearing,
take action to avoid unnecessary delay in the disposition of the
proceedings, and maintain order. The Presiding Officer shall
permit oral statements on behalf of the respondent and EPA. The
Presiding Officer may address questions to the respondent or the
EPA representative during the hearing. Although oral statements
will be permitted at the hearing, unless otherwise directed by
the Presiding .Officer, all factual matters to be presented by
respondent must be in writing by affidavit. Apart from questions
by the Presiding Officer, no direct examination or cross-examina-
tion shall be allowed.
Upon commencement of the hearing, a representative of EPA
shall introduce the order and the record supporting issuance of
the order, and summarize the basis for the order. The respondent
may respond to the administrative record and offer any facts,
statements, explanations or documents which bear on any issue tor
which the hearing has been requested. Any such presentation by
respondent may include new documents only to the extent that
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respondent can demonstrate that, through no fault of its own,
such documents could not have been submitted before hearing in
accordance with the requirements of Paragraphs 23 and 25-. The
Agency may then present matters solely in rebuttal to matters
previously presented by the respondent. The Presiding Officer
may allow the respondent to respond to any such rebuttal submitted.
The Presiding Officer may exclude repetitive or irrelevant matter.
The Presiding Officer may upon request grant petitioner leave to
respond to submissions made by respondent pursuant to this paragraph
or Paragraph 25.
\
28. The hearing shall be either transcribed stenographic-
ically or tape recorded. Upon written request, such transcript
or tape recording shall be made available for inspection or
copying.
29. The transcript or recording of the hearing and all
written submittals filed with the Clerk by the parties subsequent
to initial issuance of the order including post-hearing sub-
missions will become part of the administrative record for the
proceeding, for consideration by the Presiding Officer and Regional
Administrator.
30. The Presiding Officer will, as soon as practicable after
the conclusion of the hearing, evaluate the entire administrative
record and, on the basis of the administrative record, prepare
and file a recommended decision with the Regional Administrator.
The recommended decision must address all material issues of
fact or law properly raised by respondent, and must recommend that
the order be modified, withdrawn or issued without modification.
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The recommended decision must provide an explanation, with
citation to material contained in the record, for any decision to
modify a term of the order, to issue the order without change or
to withdraw the order.
The recommended decision shall be based on the administrative
record. If the Presiding Officer finds that there is not adequate
support in the record for any contested required action, the
Presiding Officer may recommend that the order be modified and
issued on terms that are supported by the record, or _wi_thd.raw.n...
Ill
31. As soon as practicable after receipt of either the
summary and statement or the recommended decision, the Regional
Administrator will either sign, or modify such statement or
recommended decision, and issue it as a final decision. The
Regional Administrator's decision shall be based on the admin-
istrative record.
32. If the Regional Administrator does not adopt portions
of the initial order, or finds that modification of the order is
necessary, the signatory official on the initial administrative
order shall modify the order in accordance with the terms of the
final decision and file and serve a copy of the final administra-
tive order. If the Regional Administrator finds the initial
order appropriate as originally issued, the final decision shall
declare the initial administrative order to be a final order,
effective upon service of the final decision. If the Regional
Administrator declares that the initial order must be withdrawn,
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the signatory official on the initial administrative order will
file and serve a withdrawal of the initial administrative order.
This may be done without prejudice.
33. The final decision and the final administrative order
are final agency actions that are effective on filing and service.
These actions are not appealable to the Administrator.
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