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 - - • - -. —
Wdi.'...-....... 	
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
                             -2-


 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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                             -2-            9936.2

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
                              -3-

 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
                             -4-
 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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                            -2-                      9936-2

     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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                             -3-                      9936.2

 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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                               -4-                    9936-2

 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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                                                    9936,2
                               -5-

 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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                                                       9936.2
                              -6-

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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                                                      9936.2
                             -7-

 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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                              -8-
                                                      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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                                                     9936.2
                             -9-
 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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                             -TO-                      9936.2

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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                              .IT.                        9936.2
 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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                              -12-                    9936.2

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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                                ~13'                  9936-2




 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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                                -14-                 9936,2

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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