Permits Preamble
Subpart H -
Appeal Procedures
for Acid Rain
Permits
05/22/1991
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H. Subpart H - Appeal Procedures for Acid Rain Permits
This subpart describes the rights and procedures for
administrative appeals to Acid Rain initial permitting decisions.
(As is provided in the definitions, "initial permitting decision"
refers to the permit action taken following an opportunity for
public comment, and in the case of a state issued permit, following
the EPA opportunity for review and possible veto. See, also
definitions for "proposed permit* and "draft permit").
Section 502 (b) (6) of the Act requires that, in order to obtain
approval of a permitting program under Title V and 40 CFR Part 70,
States procedures must include an opportunity for judicial review
in state court of the final permit action. The Part 70 rule, as
proposed by the Agency provides that in the case of Acid Rain
Program permit provisions in permits issued by state permitting
authorities judicial review be in Federal court. This is
consistent with the overriding concern of ensuring national
consistency in the Acid Rain Program, and the provisions of Title
V which provide that the Title V requirements apply to Acid Rain
permits, except as modified by the Title IV program. (See. Section
506(b) in Title V of the Act.)
The Agency believes that Congress intended t'o provide the a
similar opportunity for judicial review of Acid Rain permits,
including those where EPA is the permitting authority. Thus,
today's proposal would afford an opportunity for judicial review of
EPA-issued Acid Rain permits. The Agency believes, however, that
federal court challenges should not be available until the
petitioner has gone through an administrative appeals procedure.
This approach is consistent with other Agency permitting programs,
including the National Pollution Discharge Elimination System
(NPDES) under the Clean Water Act, the--Resource Conservation .,and
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Recovery Act (RCRA), and the Prevention of Significant
Deterioration (PSD) program under the Clean Air Act. Each of these
programs require that an administrative appeals process be
exhausted before a petitioner may challenge a permitting decisions
in Federal court. The Agency also believes that an administrative
appeals procedure is appropriate because it allows the Agency an
additional opportunity to review its permitting decision and to
ensure that the decision was correct, before it is required to
defend that position in court. This approach also gives
petitioners access to a less costly and less time—consuming process
for resolving conflicts over Acid Rain permits prior to judicial
review.
The general approach proposed in Subpart H is guided by two
concerns:
a. The need to expedite the appeals process, particularly
since the initial permitting decision follows a notice
and comment procedure;
b. The need to provide personnel ( i.e. , presiding officers)
to conduct appeals for the Administrator, and to provide
an opportunity for the Administrator to correct the
determinations of the presiding officer if necessary.
The rule would allow petitions for review of initial
permitting decisions on factual, legal, and policy issues. The
appeals procedure would include an opportunity for an evidentiary
hearing, with the entire proceeding (not lust the evidentiary
hearing) , conducted by a presiding officer appointed by the Chief
Judicial Officer for the Agency.
In order to ensure expedition in the event of a petition for
a hearing, presiding officers would be required to: limit
evidentiary hearings to genuine issues of material fact, limit
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evidence to such factual issues, and bar testimony on legal and
policy issues . The presiding officer would, moreover, have
discretion to allow only for a paper evidentiary hearing, even if
there is a genuine issue of material fact, where this would avoid
delay and where direct and cross-examination of witnesses would not
be necessary for a full and true disclosure of the facts. This is
appropriate since permitting is an essentially rulemaking function
and, as already mentioned, there has already been an opportunity
for notice and comment.
The standard of review to be applied by the presiding officer
would be as follows:
a. With regard to any factual finding or legal conclusion
underlying the initial permitting decision the standard
is “clearly erroneous”;
b. With regard to an exercise of discretion on a policy
determination underlying the initial permitting decision
the standard is “arbitrary and capricious”.
The burden of proof would be on the petitioner to establish
that the applicable standard was not met.
The presiding officer’s review would conclude with a proposed
decision. The proposed decision would become final agency action,
unless:
a. The Administrator issues a notice of review within thirty
days, sponte ; or
b. A party files objections to the proposed decision, within
15 days, and the Administrator in his or her discretion,
rules on the objections or issues a notice of review of
the proposed decision within 15 days.
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In issuing notice of review, the Administrator has discretion
to allow briefs by the parties. In reviewing a proposed decision
the Administrator has absolute discretion to raise matters not
raised by the parties, but in that case must provide an opportunity
for briefs by the parties.
In an appeal to the Administrator of a proposed decisions, the
petitioner must allege that: (1) a finding of fact or conclusion of
law on which the initial permitting decision is based is clearly
erroneous; or (2) an exercise of discretion or an important policy
determination on which the initial permitting decision is based is
arbitrary and capricious.
Most of the rules and procedures proposed today for conducting
evidentiary hearings are based in part on the procedures used in
the NPDES program for permit appeals, and loosely on the Federal
Rules of Civil Procedure. The Agency has proposed this approach
because it allows full development of factual disputes and full
ventilation of legal and policy issues during the administrative
review process. Using this approach, the Agency can ensure that no
erroneous factual determinations were made and that the permit
writer appropriately applied the regulatory and statutory
requirements to the site specific circumstances of the source. The
approach would also allow the Agency to fully consider the legal
and policy implications of a permitting decisions, prior to any
judicial review.
The Agency also considered proposing permit appeals procedures
that do not afford an opportunity for a hearing. This is the
approach used in the RCRA and PSD programs. Under those programs
challenges to initial permitting decisions are filed directly with
the Administrator. There is no opportunity for an evidentiary
hearing, and the Administrator may grant or deny review of the
decision. Such an approach might be appropriate under the Acid
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Rain permit program since the initial permit decisions will have
been reached following a substantial opportunity for public review
and comment.
Although an evidentiary hearing procedure can initially be
more resource intensive, the Agency believes that an opportunity
for an adjudicatory procedure allowing for the full airing of
factual issues, would reduce delays in the permitting program.
This is particularly the case since the absence of such a procedure
could increase the opportunity for a judicial remand to the Agency
of a permitting decision for further development in a case
involving a genuine issue of material fact. Thus, the Agency is
not certain that resources would be saved through an administrative
proceeding which only allowed a direct appeal to the Administrator
without an evidentiary hearing. In addition, where an evidentiary
hearing is available for factual disputes, the Administrator will
have a fuller record to review than if making a final decision
solely on the permit issuance record. The proposed procedure
would, thus, tend to ensure better decisions which more accurately
reflect the policies of the Agency, than would a decision based
solely on a review of opposing briefs.
Perhaps the biggest criticism of an evidentiary hearing
procedure is the time involved in the process. Therefore, in
today’s proposal the Agency has included deadlines for Agency
action to ensure that the evidentiary hearing process for Acid Rain
permits occurs expeditiously. The Agency believes that the way it
has structured these deadlines should speed the evidentiary hearing
process considerably, so that the process is not so burdensome on
the Agency, permittees, and parties seeking to appeal permits.
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The Agency requests comment on whether to use an appeals
proceeding that may include an evidentiary hearing and is conducted
by a presiding officer, or an abbreviated process for appealing
initial permit actions directly to the Administrator.
(1) Section 72.90 Applicability
Section 72.90(a) provides that the procedures of this subpart
will govern all appeal proceedings, and all evidentiary hearings in
particular, conducted under this part. The Agency believes that
all Acid Rain permit appeals should be conducted in the same
manner.
Section 72.90(b) provides that the permit appeal and
evidentiary hearing procedures of this subpart will be available to
appeal any Acid Rain permit issued by the Administrator under this
part, or to appeal a denial by the Administrator of a petition for
a permit under this part. This provision ensures that appeals can
be to: (1) the entire Acid Rain permit; (2) any condition of the
Acid Rain permit; or (3) the denial of an application for an Acid
Rain permit. The same procedures will be used no matter what
aspect of the Acid Rain permit (or denial of a permit) is being
appealed. This provision will ensure consistency in reviewing Acid
Rain permitting decisions.
Section 72.90(c) provides that the permit appeal and
evidentiary hearing procedures of this subpart shall be available
only to appeal final permitting actions. This provision is
designed to ensure that the Acid Rain permitting process is not
clogged with appeals of proposed permitting decisions and interim
determinations. Appeals should only be allowed after completion of
the permitting process, including an opportunity for public
comment. Allowing appeals from interim or proposed permitting
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decisions would needless slow the permit issuance procedure and
would not serve any useful purpose. Proposed permits are subject
to change and do not contain final requirements which will bind the
source for the next five years. Information may arise during the
public comment period that results in the Agency changing the
proposed permit. In such cases, any time and resources spent
appealing that proposed permit would have been wasted.
The Agency also believes that appeals of interim and proposed
permitting decisions should be prohibited because allowing such
appeals presents an opportunity for individuals to stall
indefinitely issuance of a permit they dislike, without any grounds
for the delay. This sort of occurrence would introduce uncertainty
into the Acid Rain program, hinder the allowance market, backlog
the permitting process, and disadvantage certain affected sources.
Therefore, the Agency is proposing that appeals should be allowed
only on initial permitting decisions.
Section 72.90(d) provides that Acid Rain permit appeals shall
be filed with Hearing Clerk for the EPA Office of the
Administrative Law Judges in Washington, D.C. [ The Agency notes
that the authority to hear appeals may eventually be delegated to
the Regional offices. In that case appeals would be required to be
filed with the Regional Hearing Clerk for the Region for the State
where the source is located, This may be appropriate in the event
the Administrator delegates the authority to write permits the EPA
Regional offices, since the administrative record for the permit
would be located in that Region, as would the permit writer and
other persons knowledgeable about the permitting decision. In
addition, where an appeal is filed by a third party, the affected
source would not be forced to defend its permit in another part of
the country. This would avoid harassment.]
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(2) Section 72.91 Filing and Submission of Documents
Section 72.91(a) requires that all submissions authorized or
required to be filed with the Agency under this subpart be filed
with the Hearing Clerk for the EPA Office of the Administrative Law
Judge at the address specified in Appendix E, unless otherwise
provided by regulation. This section also provides that
submissions will be considered filed on the date on which they are
received by the Hearing Clerk. This provision establishes a
central address to which all submissions are sent to ensure that
submissions are not lost, misplaced, or delayed through submission
to the wrong part of EPA. The Agency believes that the approach of
considering submissions to be filed on the date they are received
(rather than sent) will expedite the appeals process. Facsimile,
couriers, overnight express and registered mail can all be used to
ensure that the submission are received by the Agency in a timely
and expeditious manner.
Section 72.91(b) provides that all submissions be signed by
the person making the submission, or by an attorney or other
authorized agent or representative. It also requires that, in the
case of an affected source, all submissions must be signed by the
designated representative. Clearly, the Agency needs to be sure
that any submissions received are authorized by the person
purportedly making the submission. Thus, the Agency will accept
documents signed by the person making the submission, or by their
attorney, or other authorized representative. For affected
sources, the Agency contact is the designated representative for
all matters concerning Acid Rain, including permitting actions.
Thus, the Agency is requiring that the designated representative
sign all submissions for purposes of permit appeals, just as the
designated representative submits all other certified documents
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required of the affected source to EPA.
Section 72.91(c) (1) requires that all data and information
referred to or in any way relied upon in any submission will be
included in full and may not be incorporated by reference, unless
previously submitted as part of the administrative record for the
permit. The Agency does not want to waste time during the appeal
process searching for documents that were relied upon in
submissions to ensure that those documents actually corroborate
statements in the submissions. EPA is trying to create an appeal
process which is as expeditious as possible.
Section 72.91(c)(1) also provides that, notwithstanding the
previous provision, State or Federal statutes and regulations,
judicial decisions published in a national reporter system,
officially issued EPA documents of general applicability, and any
other generally available reference material may be incorporated by
reference. The Agency believes that these materials are readily
available and easily defined, so allowing incorporation by
reference of these documents will not result in the Agency being
unable to find the necessary supporting material. In addition,
these materials will likely be relied upon by more than one party
in the hearing, and by other parties in other Acid Rain appeals.
Thus, the Agency will already be familiar with the materials and
will not need additional copies of these materials.
Section 72.91(c) (1) also provides that any party incorporating
materials by reference provide copies of the materials upon request
by the Presiding Officer, the Judicial Officer, or the
Administrator. This provision is designed to ensure access to
materials of which the Agency is unable to obtain copies.
Section 72.91(c) (2) requires that, if any part of the material
submitted under this subpart is in a foreign language, it will be
accompanied by an English translation verified under oath to be
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complete and accurate, together with the name, address, and a brief
statement of the qualifications of the person making the
translation. This section also requires that translations of
literature or other material in a foreign language will be
accompanied by copies of the original publication. This provision
will ensure that the Agency need not spend time and resources
translating materials that are in a foreign language, thereby
slowing the appeal process. Copies of the original publication
will be used to verify the accuracy of the translation, as needed.
Section 72.91(c) (3) requires that, where relevant data or
information is contained in a document also containing irrelevant
matter, either the pages containing irrelevant matter will be
deleted or the relevant portions will be indicated. The Agency has
included this provision in today’s proposal to expedite the hearing
procedure by ensuring that opposing parties and the Presiding
Officer do not waste time sorting through irrelevant material to
find the relevant portions.
Section 72.91(c) (4) provides that failure to comply with the
requirements of this section or any other requirement in this
subpart may result in the noncomplying portions of the submission
being excluded from consideration. The Agency has proposed
requirements on how material is to be submitted ((C) (1) through
(3), above, so that the appeals proceeding will not be delayed
because of the submissions. Therefore, the Agency believes that it
is appropriate to exclude materials from consideration if they do
not comply with the requirements.
Section 72.91(c) (4) also provides that if the Administrator,
the Judicial Officer, or the Presiding Officer, on motion by any
party or sua sponte , determines that a submission fails to meet any
requirement of this subpart, the Administrator, Judicial Officer,
or Presiding Officer may direct the Hearing Clerk to return the
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submission, together with a reference to the applicable
regulations. The Agency may permit correction and resubmission of
the returned materials, rather than excluding them from any
consideration. The Agency anticipates this provision will be used
primarily where a person is not represented by counsel and is
unfamiliar with the regulations in this section. The Hearing Clerk
will reference or attach the applicable regulations, so that the
person may send a corrected submission.
Section 72.91(c) (4) of today’s proposal provides that a party
whose materials have been rejected has seven (7) days to correct
the materials in conformance with this subpart and resubmit them,
unless the Judicial Officer, Administrator, or Presiding Officer
authorizes on the basis of good cause, longer time. The Agency
believes that seven (7) days should be sufficient in most cases to
correct a deficient submission.
Section 72.91(d) provides that the filing of a submission will
not mean or imply that the submission meets all applicable
requirements or contains reasonable grounds for the action
requested or that the action requested is in accordance with law.
This provision is needed to ensure that acceptance of a filing is
not interpreted to mean that the action requested will be granted.
Even where a submission meets all the requirements of section
72.91(c) above, it may not state reasonable grounds for the action
requested or such action may be barred by statutory or regulatory
constraints.
Section 72.91(e) provides that the original of all statements
and documents containing factual material, data or other
information will be signed in ink and will state the name, address,
telephone and facsimile number, and the representative capacity of
the person making the submission. The Agency has included this
provision because, as with written comments on the proposed permit,
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the Agency needs to know who is making the submission and in what
capacity and to ensure that the submission is authorized.
Section 72.91(f) requires that an original and one copy of all
written submissions, relating to an evidentiary hearing and
submitted after notice of the evidentiary hearing is published
pursuant to section 72.XX, will be filed with the Hearing Clerk.
The Agency is proposing to require two copies of written
submissions because, once a hearing has been scheduled, one copy
will be needed for the record of the hearing and one copy will be
used by the Agency trial staff in preparation for the hearing.
Section 72.91(g) requires that the party filing any submission
with the Hearing Clerk also serve a copy upon the Presiding Officer
and each party of record to a proceeding under this subpart.
Section 72.91(g) also provides that service be by mail or personal
delivery. The Presiding Officer clearly needs a copy of each
submission to review the evidence presented by each party. In
addition, the Agency believes that the party filing any submission
should be responsible for serving a copy on all other parties to
the proceeding. This provision is consistent with the Federal
Rules of Civil Procedure (check rule number].
Section 72.91(h) provides that every submission filed with the
Hearing Clerk be accompanied by a certificate of service citing the
date, place, time and manner of service on each party of record to
the proceeding and the names of the persons served. This provision
is designed to ensure that the party has served a copy of each
submission on all parties to the proceeding. The submission will
not be accepted by the Hearing Clerk unless a certificate of
service has been provided.
Section 72.91(i) requires that the Hearing Clerk maintain and
furnish a list containing the name, service address, telephone and
facsimile numbers of each party of record to a proceeding under
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this subpart and their attorneys or duly authorized
representatives, to any person upon request. The Agency believes
that the public has a right to know who is involved in an Acid Rain
permit appeal. This provision will ensure that any interested
person can find out who is a party.
Section 72.91(j) requires that affidavits be made on personal
knowledge and belief, set forth only those facts that would be
admissible into evidence under § 72.XX and § 72.XX, and show
affirmatively that the affiant is competent to testify to the
matters stated therein. The Agency believes that one purpose of
the administrative evidentiary process is to ensure that full but
expeditious factual development of issues occurs before the Agency
makes a final decision on any disputed issues of fact.
Consequently, EPA believes that the affidavits accepted during this
process should include only material that will assist in the
resolution of the issues.
(3) Section 72.92 Ex Parte Communications
Section 72.92 (a) (1) requires that no interested person outside
the Agency or member of the Agency trial staff make or knowingly
cause to be made to any member of the decisional body, an ex parte
communication on the merits of a proceeding under this subpart.
Today’s proposal defines ex parte communication at section 72.2.
The Agency needs to prohibit ex parte communications to ensure that
the appeals proceeding produces a fair and equitable result and to
ensure that no person is able to exercise undue influence on the
decisional body. The decisional body, though a part of EPA, should
be fair and impartial and should not be contacted ex parte by the
Agency trial staff, or by an interested person, during the pendency
of the appeal. Such contact might affect the impartiality of the
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decisional body.
Section 72.92 (a) (2) requires that no member of the decisional
body will make or knowingly cause to be made to any interested
person outside the Agency or to any member of the Agency trial
staff, an ex parte communication on the merits of any proceeding
under this subpart. The reasons are the same as above; the Agency
needs to ensure that the appeal process is fair and impartial.
Section 72.92(a) (3) requires that a member of the decisional
body who receives or who makes or who knowingly causes to be made
an ex parte communication prohibited by this subsection will file
with the Hearing Clerk for inclusion in the record of the
proceeding under this subpart all written ex parte communications
or a memoranda stating the substance of any oral communication
together with all written responses and memoranda stating the
substance of all oral responses. The Agency acknowledges that
parte communications may sometimes occur. In these instances, the
Agency believes that the best approach is for the member of the
decisional body to file with the Hearing Clerk a record of such
communication. This record will be included in the record of the
proceeding. Thus, all parties to the hearing will be aware that
the ex parte communication has occurred and can respond if
necessary. In virtually all cases, this approach will cure any
potentially harmful effect of the communication. However, if a
party believes that such communication has prejudiced the result of
the appeal, the issue can be considered before final agency action
is taken.
Section 72.92(b) provides that, whenever any member of the
decision-making body receives an ex parte communication knowingly
made or knowingly caused to be made by a party or representative of
a party to an appeal, in violation of this section, the person
presiding over the proceedings then in progress may, to the extent
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consistent with justice and the policy of the CAA, require the
party to show good cause why its claim or interest in the
proceedings should not be dismissed, denied, disregarded, or
otherwise adversely affected on account of these violations. The
Agency believes that, where a party or its representative to an
appeal makes an ex Parte communication, generally its claim should
be dismissed. A knowing ex parte communication by a party usually
is an attempt to influence the decisional body behind the scenes
and without the knowledge of other parties to the proceeding. Such
contact is unacceptable and, if allowed, could bias the results of
the appeal. However, the Agency acknowledges that there may be
circumstances in which dismissing the party’s claim would be
unjust. Therefore, today’s proposal allows such party to show good
cause why their claim should not be dismissed as a result of the
parte communication.
Section 72.92(c) provides that the prohibitions of this
section begin to apply upon issuance by the Presiding Officer of
the notice of the granting of a petition under section 72.98, and
that this prohibition terminates at the date of final Agency
action. The Agency believes that the prohibition must begin as
soon as notice is given, to minimize the likelihood of an
inappropriate communication with the decisional body. The
prohibition should end only upon final Agency action, because prior
to this time, the decisional body is still considering the issues.
(D.A. 5-22-9i.: Need to explain why no ex parte bar prior to notice,
i.e., during process of developing proposed permit and initial
permitting decision.]
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(4) Section 72.93 Stays of Contested Acid Rain Permits
Section 72.93(a) provides that, if a petition for an
evidentiary hearing is sought and granted under section 72.97 and
section 72.98, the permit provision contested may be stayed by the
presiding officer only if necessary to prevent irreparable injury
pending final agency action. The Agency believes that stays of
permit conditions should not be granted lightly. The presiding
officer should consider the effects of a stay, and grant it only if
necessary.
Section 72.93(a) also provides that the following Acid Rain
permit conditions will in no event be stayed due to any permit
appeal and will remain fully effective and enforceable:
o The requirement that a permittee hold sufficient
allowances to cover its annual sulfur dioxide emissions;
o The allowance allocation for any year during which the
appeal is pending or is being conducted;
o Standard permit conditions as specified in Appendix D of
this part applicable to all owners, operators, and
designated representatives of affected units under the
Acid Rain program;
o The emissions monitoring requirements applicable to the
affected source; and
o Uncontested provisions of the permit.
The requirement that a permittee hold sufficient allowances to
cover its annual sulfur dioxide emissions is mandated by the
statute and in today’s proposal. The Agency is also proposing that
the allowance allocation should not be stayed during any year in
which the appeal is pending or being conducted. The Agency
believes that this provision is necessary because of the effect on
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the affected source of staying this provision. The source must
have allowances to cover its emissions. If its allowance
allocation were stayed, the source would be forced to buy
allowances on the market and incur significant expense, or incur
excess emissions penalties and offsets if the appeal is not
resolved before the end of the calendar year. Allowing a stay of
the allocation would thus place significant pressure on the source
to settle the dispute at all costs before the end of the year.
The Agency does not believe that such pressure on the affected
source is necessary or appropriate. Therefore, the Agency is
proposing that stays be prohibited for allowance allocations in any
year in which the appeal is pending or being conducted.
The Agency is also proposing that no standard conditions be
stayed. These conditions will receive public comment as part of
today’s proposal, and any appeals to the conditions should be made
as an appeal of the overall regulations, not as an appeal of the
individual permit. Therefore, the Agency has proposed here that
these issues not be raised during an evidentiary hearing and open
to being stayed.
The Agency is also proposing that stays be prohibited with
regard to emissions monitoring requirements applicable to the
source pursuant to Part 75. These requirements will also be
codified into regulation, and should not be stayed for the same
reason as the standard conditions. In addition, sources must still
hold allowances to cover their emissions, whether or not a hearing
is pending. Without emissions monitoring, the Agency has no way of
knowing whether the sources has sufficient allowances to cover
their emissions. Thus, this provision cannot be stayed without
nullifying the effect of the provision that a source hold
allowances to cover its emissions.
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Finally, the Agency is proposing that uncontested permit
conditions not be stayed. Since no one is disputing the
applicability of these conditions, there is no reason to stay them.
Section 72.93(b) provides that the presiding officer specify
which provisions of the permit will be stayed. The Agency believes
that the presiding officer should specify which conditions are to
be stayed because the source, in order to plan its compliance,
needs to know which conditions it must meet.
(Sections 72.93(c) (1) and (c)(2) say the same thing as (b)(3)
and (b) (2). Why repeat them? Why not delete?]
(5) Section 72.94 Limitation on Submitting New Evidence and
Raising New Issues
Section 72.94 of today’s proposal requires that no evidence be
submitted or issue raised by any party with regard to any appeals
under this subpart that was not submitted to the Agency or raised
during the public comnient period on the proposed (change in reg -
it says “draft”] permit, absent a showing of good cause explaining
the failure to make such submission or raise such issue. This
section also provides that good cause will include any instance
where the party seeking to introduce new information or raise a new
issue, shows that the information or issue could not have
reasonably been ascertained, raised, or made available during the
public comment period or that the relevance or materiality of the
information or issue could not have reasonably been anticipated
during that period.
The Agency believes that the public comment period is the
appropriate time to submit evidence and raise issues about the
permit. The purpose of an appeal is to request a reconsideration
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where a person believes that the Agency did not adequately address
the evidence submitted or issues raised during the public comment
period. As was discussed above, the Agency does not believe that
persons should submit evidence or raise issues for the first time
following final permitting action, because to do so negates the
effect and purpose of the public comment period. Therefore, the
Agency is proposing that generally, no evidence shall be submitted
or issue raised that was not submitted or raised during the public
comment period.
The Agency acknowledges that sometimes, good cause exists for
failure to submit evidence or raise issues during the public
comment period. The Agency is therefore proposing to allow new
evidence to be submitted or new issues to be raised in limited
circumstances. The Agency anticipates that permission to submit
new evidence or raise new issues will rarely be granted, but wishes
to allow the possibility in case a petitioner is able to show good
cause for failure to submit the evidence or raise the issue
previously.
(6) Section 72.95 Intervenors
Section 72.95(a) provides that any person meeting the criteria
under section 72.92(a) [ add into reg] may submit a motion for leave
to be admitted as a party intervenor within 15 days after the
notice is given under section 72.9X that the petition for review
has been granted. The Agency believes that, in the interest of
fairness, only those people who could have petitioned for review
themselves should be allowed to intervene in an appeal proceeding
that has already been initiated. To allow otherwise might result
in persons who did not participate in the public comment process
influencing those who did to intervene, so that the person who did
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not comment could intervene. This result would circumvent the
purpose of limiting who can appeal a permit. The Agency also
believes that fifteen days after the notice should be sufficient
for a person to decide to intervene and will not interfere with the
expeditious processing of the existing appeal.
Section 72.95(a) also provides that the Presiding Officer
grant motions for intervention that meet the requirements of this
section and section 72.103. Section 72.103 of today’s proposal
provides the requirements for motions under this subpart. Thus, a
party must meet both the requirements of this section and section
72.103.
Section 72.95(a) also provides that a motion for leave to
intervene under this section will set forth the grounds for the
proposed intervention and that no evidence or factual or legal
issue other than that submitted or raised during the public comment
period on the proposed draft permit, may be submitted or raised in
a motion to intervene except on a showing of good cause explaining
why the evidence or issue was not previously submitted or raised.
The Agency believes, as is discussed below, that not all motions to
intervene should be granted. Thus, the Agency is requiring that a
party motioning to intervene provide the grounds for that
intervention so the presiding officer can rule on whether to allow
the intervention. In addition, the Agency believes that the
intervening party generally should not be allowed to introduce new
evidence or issues which were not submitted or raised during the
public comment period. The reasons for not allowing issues which
were not raised in the public comment period are discussed above at
section 72.XX. Where good cause is shown, however, parties may be
allowed to introduce new issues.
The Agency is considering three options for allowing
additional parties to intervene in the hearing. The Agency
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requests comments on which of the three options should be used in
its Acid Rain regulations. Under the first option, permission to
intervene would rarely be granted. The option has the advantage of
keeping the evidentiary hearing simple and expeditious because it
will rarely be complicated by additional parties and issues. The
disadvantage is that permission to intervene may sometimes be
denied even though the petitioner has an interest in the outcome
and could contribute to the evidentiary hearing.
The presiding officer will grant a motion to intervene only
upon an express finding that:
o Extraordinary circumstances justify granting the motion;
o The motion to intervene raises matters pertinent to the
issues raised by the petition for a hearing; and
o The intervenor has demonstrated a substantial interest in
the outcome of the pending permit appeal.
[ If we use this option, I suggest adding in the rag: (c) Provided
that a timely motion to intervene is made under 72.95(a), the
Judicial Officer shall permit the designated representative of the
affected source to intervene when a third party has appealed the
conditions of the permit.]
The Agency is proposing, under this option, that the motion to
intervene only be granted in extraordinary circumstances, to ensure
that the evidentiary hearing process is rarely slowed by
intervention. The Agency recognizes, however, that intervention
will sometimes be appropriate. The Agency envisions that, under
this option, a party would be allowed to intervene if it could show
that its interests were not adequately represented by the existing
parties to the action, and that, as a practical matter, the party’s
interests could be significantly affected by the outcome of the
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appeal. This requirement is articulated in subsection (b) (ii). A
petitioner whose interests will not be affected by the outcome of
the hearing should not be allowed to intervene, because to allow
intervention would be to slow the evidentiary hearing process
without advancing anyone’s interests.
The motion must raise matters pertinent to the issue raised by
the petition for the hearing. The Agency believes this provision
is appropriate because if the petitioner wishes to raise unrelated
issues, he or she should have petitioned under section 72.92 for an
evidentiary hearing, rather than petitioning to intervene. In
addition, the Agency wishes to promote expeditious evidentiary
hearings, and adding new issues in addition to new parties may slow
the process. Under subsection (a), new issues may be raised for
good cause.
Section 72.95(b) (2) requires that the intervenor consent to be
bound by:
o Prior written agreements and stipulations among the
existing parties; and
o All orders previously entered in the proceedings.
These provisions are designed to ensure that the intervenor not
delay the proceedings by forcing the existing parties to re-
consider all agreements, stipulations and orders. The Agency does
not believe that any constructive purpose would be served by
allowing a new party to the proceeding to undo what had already
been accomplished.
Section 72.95(b) (3) provides that intervention only be granted
if it would promote the interests of justice and will not cause
undue delay or prejudice to the rights of the existing
parties. The Agency believes that existing parties should not be
prejudiced by the intervention, nor should their proceeding be
delayed. All persons who commented on the proposal have an
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opportunity to request an evidentiary hearing. Those persons who
did not request a hearing but wish to intervene therefore should
not be allowed to delay or prejudice the rights of those who timely
requested a hearing.
Under the second option for intervention, permission to
intervene would be granted more frequently. Section 72.95(b) (1) of
this option would allow intervention when good cause is shown why
the motion should be granted. Thus, any person who could show good
cause would be allowed to intervene. Good cause might include, for
example, a substantial interest in the outcome of the proceedings
or an expertise that would add significantly to the proceeding.
The advantage to this approach is that more petitioners would be
allowed to intervene. The disadvantage is that the evidentiary
hearing might, as a result, become significantly more complicated
and slower. This option would also include the requirement that
intervention only be allowed when the Presiding Officer finds that
it will not unduly delay or prejudice the rights of the existing
parties. This provision was discussed above.
The third option would be the same as the second option,
except that section 72.95(b) (1) would allow intervention when the
applicant’s claim or defense and the main action have a question of
[ law or) fact in common. This provision is even more permissive
than the second option. Any time there is a common issue, a
petitioner could intervene. This provision does not, however,
allow intervention where a new or different issue is raised, unless
it is raised in conjunction with a common issue. This option would
also include the requirement that intervention only be allowed when
the Presiding Officer finds that it will not unduly delay or
prejudice the rights of the existing parties. This provision
should ensure that the evidentiary hearing is not excessively
delayed by a petitioner who raises a common issue and numerous
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unrelated issues which would then have to be included in the
evidentiary hearing.
The Agency requests comments on these options.
(7) Section 72.96 Consolidation and Severance of Proceedings
Section 72.96(a) provides that the Presiding Officer has the
discretion to consolidate, in whole or in part, two or more
proceedings under this subpart whenever it appears that a joint
hearing on any or all of the matters at issue in the proceedings
would be in the interest of justice, would expedite or simplify
consideration of the issues, and would not prejudice any party of
record. This provision is consistent with Rule 42 of the Federal
Rules of Civil Procedure, which allows consolidation and severance
of proceedings. The Agency believes that this provision is
appropriate to ensure expeditious determination of all appeals to
an individual Acid Rain permit. Where several parties have
petitioned and been granted an evidentiary hearing, it may be
useful to consolidate those claims into one hearing so common
issues of fact can be decided quickly and consistently. Similarly,
the issues involved in a hearing may become so complex that ruling
on all of them in one hearing would not be effective, because
issues that could be decided more quickly would have to wait and be
decided with the more complex issues. This provision
therefore gives the Presiding Officer discretion to consolidate or
sever proceedings.
Section 72.96(a) also provides that consolidation of
proceedings under this paragraph will not affect the right of any
party to raise issues that might have been raised had there been no
consolidation. This provision was included to ensure that where
consolidation occurs, parties to the hearing are not precluded from
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raising claims. For example, the Presiding Officer may decide to
consolidate the hearing because one of four issues is common to the
two proceedings. Consolidation shall not prevent the party whose
proceeding was consolidated from raising the other three issues.
Section 72.96(b) provides that, if the Presiding Officer
determines that a proceeding consolidated under subsection (a) is
not conducive to an expeditious, full, and fair hearing with regard
to any party of record or issue, the issue or party may be severed
and heard in a separate proceeding. This provision gives the
Presiding Officer the discretion to sever a proceeding that has
been consolidated. The Agency believes this provision is
important, because hearing may be consolidated before the issues
are fully developed. Once the issues are developed, it may appear
that some are too complicated, and will slow determination of the
remainder of the issues. Thus, the Presiding Officer should have
the discretion to sever consolidated proceedings if, as a result,
the evidentiary hearing process will function more effectively.
(8) Section 72.97 Petitions for Review and Request for
Evidentiary Hearing
This section discusses requests for review and f or an
evidentiary hearing. Under these procedures, a petitioner may
request review of an initial permitting decision on the basis of
issues of fact or law material to that decision. Only where there
are issues of material fact may the petitioner also request an
evidentiary hearing as part of that review. This approach deviates
from the approach taken in the evidentiary hearing proceedings
under 40 CFR Part 124, used in the NPDES program. There, a
petitioner requests an evidentiary hearing even though only issues
of law or policy are raised. When the request is denied, the
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petitioner appeals to the Administrator, who will rule on the legal
or policy issues. The Agency believes that this approach, while
workable, can involve considerable delays in resolution of issues.
To expedite the process, today’s proposal allows a presiding
officer to address in the first instance all factual, legal, and
policy issues, while convening an evidentiary hearing only on
factual issues, and the Administrator to conduct an expedited,
final review of the presiding officer’s proposed decision.
Section 72.97(a) provides that a review proceeding, which may
include an evidentiary hearing, may be requested by:
o The designated representative for the affected source;
o Any person who submitted comments on the draft permit
during the public comment period in accordance with
section 72.XX;
o Any person who testified at the public hearing on the
proposed permit held in accordance with section 72.XX; or
o Any other person who shows good cause for failing to
submit comments or testimony during the public comment
period in accordance with section 72.XX.
The Agency believes that only persons who participated in the
public comment period should be permitted to appeal the initial
permitting decision. The public comment period is the time when
issues about the proposed permit should be raised and resolved.
The Agency does not believe affected sources should be burdened
with uncertainty regarding permit requirements where a person
wishes to appeal the permit but did not bother to participate in
the public comment period. In addition, the Agency does not
believe that it should spend its resources defending its initial
permitting decision against challengers who were not willing to
participate in the public comment period.
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As is stated above, today’s proposal does allow for appeals
from persons who did not submit comments during the public comment
period, so long as good cause is shown for the failure to submit
comments. The Agency has included this provision to ensure that,
in situations where it would be equitable to do so, persons who did
not comment will have an opportunity to appeal the initial
permitting decision. The Agency believes that this situation might
arise, for example, where changes occurred to the permit which
could not be foreseen based on the conditions of the proposed
permit. Thus, a person might not have commented on the proposed
permit because she believed that the conditions of the permit were
appropriate, and when the conditions were changed in the final
permit, she might have valid reason to object.
Section 72.97(b) provides that, within 60 days following an
initial permitting decision by the Administrator under Part 72, any
person meeting the criteria under paragraph (a) of this section and
section 72.XX, may file a petition with the Administrator for
review based on issues of fact or law material to the initial
permitting decision. The petition may include a request for an
evidentiary hearing to resolve any disputed issue of fact material
to the initial permitting decision. This provision coordinates
with section 72.80(b), which allows sixty days between permit
issuance and when the permit becomes final Agency action and can no
longer be appealed. As was discussed above, the Agency believes
that sixty days is a reasonable limitation for filing a permit
appeal. The sixty day period also is consistent with Section
505(b) (2) of the Act, as was discussed above in section 72.80(b).
The Agency believes that this procedure will result in
expeditious determinations of factual, legal, and policy disputes
about Acid Rain permit issuance.
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Section 72.97(b) also provides that, if such a petition is
filed by a person other than the designated representative for the
affected source, the person will simultaneously serve a copy of the
petition on the designated representative. This provision is
designed to ensure that the designated representative has rapid
notice that a third party is challenging an Acid Rain permit.
Section 72.97(c) of today’s proposal requires that the
petition for review state with reasonable specificity:
o Each factual and legal question alleged to be at issue;
o The issue’s relevance to the initial permitting decision;
o A designation of the specific factual areas, if any, to
be adjudicated;
o The hearing time, if any, estimated to be necessary for
the adjudication;
o The name, mailing address, telephone and facsimile number
of the person filing the petition;
o A clear and concise factual statement of the nature and
scope of the interest of the petitioner;
o The names and addresses of all persons whom the
petitioner represents;
o A certificated statement by the petitioner that, upon the
motion of any party granted by the Presiding Officer, or
upon order of the Presiding Officer sua sponte , and
without cost or expense to any other party, any of the
following persons will be available to appear and
testify:
- The petitioner;
- Any person represented by the petitioner; and
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— Any officer, director, employee, consultant, or
agent of the petitioner. (D.A. 5-22-91: “Any” seems
unreasonable and not practical for petitioners to
agree to]
o Specific references to any contested permit provisions;
o Any revised or alternative permit provisions, or any
permit action, including denial of the permit, sought by
the petitioner as necessary to implement the
requirements, purposes, or policies of Title IV; and
o Identification of any contested permit provisions that
the petitioner believes should be stayed pending
resolution of the petition.
A statement of all legal and factual questions alleged to be at
issue and their relevance to the initial permitting decision is
needed for the Administrator to make a determination of whether to
accept or deny the petition for review and any request for an
evidentiary hearing. The Administrator also needs to know the
specific factual areas and permit provisions at issue, because all
other aspects of the initial permitting decision will be final and
will not be considered during the review. Information on the
amount of time estimated to be necessary for the adjudication will
be used to set the calendars of the presiding officers, and to
determine the date(s) on which the evidentiary hearing will be
held.
Clearly, the Agency needs to know who is filing the petition
so EPA can contact that person, whether or not the petition is
granted. The statement of the nature and scope of the interest of
the petitioner is necessary for the public notice issued under §
72.99, so interested persons can decide whether or not to
intervene. The names and addresses of all persons whom the
petitioner represents are needed for the same reason. The
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certified statement that the petitioner and others will appear to
testify without cost is proposed to be required to ensure the
smooth functioning of the hearing and to prevent petitions to
harass permittees.
The Agency will use the references to contested permit
conditions when evaluating the claims of the petitioner and
determining whether or not to grant the petition for review and any
request for stay. Revised and alternative permit conditions will
be evaluated and ruled upon as part of the review.
Section 72.97(d) provides that information supporting the
petition will be submitted as required by section 72.91(c) unless
they are already part of the administrative record for the permit.
Section 72.97(e) requires that in no event will a petition for
a review under this section be filed with regard to any standard
Acid Rain permit provision as specified in Appendix D. (We may
need to change this to Subpart E, depending on where we put the
standard provisions.] This provision ensures that the Agency will
not grant any petition which contests a permit requirement already
codified in regulations. The public had an opportunity to comment
on these standard Acid Rain provisions during the public comment
period for today’s proposal. These provisions will not be
reconsidered during proceedings on individual Acid Rain permits.
(9) Section 72.98 Decision on Petition for Review and Request
for Hearing
Section 72.98(a) requires that the Administrator act on all
petitions for review and requests for an evidentiary hearing under
this part within 30 days of filing. This section also provides
that if the Administrator fails to act on a petition for review and
a request for an evidentiary hearing within 30 days of filing, that
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petition and request shall be deemed to be granted. Today’s
proposal includes this provision to ensure that petitions are acted
upon expeditiously. The Agency believes that it should grant or
deny these petitions quickly to give permittees and petitioners
certainty and to afford them an expeditious opportunity to resolve
disputes.
Section 72.98(b) provides that all evidentiary hearings that
are granted with regard to a particular initial permitting decision
will be consolidated and commence no later than six months
following the granting of the request. The Agency believes that
all appeals to a particular permitting decision should occur in the
same hearing to minimize duplication in information presented and
to prevent possibly inconsistent results. The Agency also believes
that the hearing should take place shortly after the request is
granted to ensure expeditious determination of the appeal. The
six-month maximum should allow parties ample time to collect
evidence and prepare arguments for the hearing, particularly since
most evidence and issues presented at the hearing will already have
been raised during the public comment period. (See section 72.XX.)
Section 72.98(c) provides that, when acting on a petition for
review, the presiding officer will decide the extent to which, if
at all, the petition will be granted. This provision reemphasizes
that the Presiding Officer has the discretion to grant or deny a
petition for review. If the Presiding Officer decides to grant a
petition, it need not be granted for all issues raised by the
petitioner.
Section 72.98(d) provides that no petition for a review be
granted unless it conforms to the requirements of section 72.97,
and sets forth issues of fact and law material to the action
contested. This provision clarifies that the requirements of
section 72.97, discussed above, must be met or the petition will be
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summarily denied. In addition, any request for an evidentiary
hearing as part of the review will be denied unless the petitioner
sets forth issues of fact material to the action contested.
Section 72.98(e) provides that if a petition for review or
request for an evidentiary hearing under this subpart is denied in
whole or in part, the Presiding Officer will briefly specify in
writing the reasons for the denial. The Agency believes that a
petitioner has a right to know why the petition or request was
denied. Reasons may include, inter alia , failure to conform to the
requirements of section 72.97, or raising an issue which the
Presiding Officer does not believe was material to the action
contested.
Section 72.98(f) allows a petitioner to file objections with
the Administrator under section 72.108 where the presiding officer
has denied a petition for review or request for an evidentiary
hearing. This provision allows the petitioner an opportunity for
reconsideration of the petition or request. The Administrator may
decide that the denial of the petition or request was inappropriate
and order review or convening of an evidentiary hearing.
Section 72.98(g) provides that, if the presiding officer
grants a petition for review or request an evidentiary hearing, in
whole or in part, the presiding officer will identify any permit
provisions which have been contested by the petitioner and for
which review has been granted. This provision ensures that the
petitioner will know exactly which portions of the petition were
granted and which, if any, were denied.
Section 72.98(g) also provides that any permit provisions
which are not contested or for which the presiding officer has
denied the petition will not be considered on review. The Agency
has proposed this provision to focus the review and to provide
certainty to the affected source. When review is granted, the
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source will know which requirements of the permit, if any, may be
changed as a result of the review, and which ones will not be
considered and will remain unchanged. Thus, the source can better
plan its compliance strategy.
Section 72.98(h) requires that, upon granting of a petition
for a hearing, the Presiding Officer will designate the Agency
trial staff and the members of the decisional body. The terms
“Agency trial staff” and “decisional body” are defined at section
72.2. These people need to be designated as soon as the petition
is granted to avoid inadvertent ex parte conununications. (See
section 72.98.)
(10) Section 72.99 Notice of hearinc
Section 72.99 provides that notice that any petition for
review, including any request for an evidentiary hearing, on an
initial permitting decision has been granted will be published in
the Federal Register. The Acid Rain program is a national program.
As discussed above concerning section 72.76, the Agency believes
that publication of permit actions in the Federal Register is
appropriate because such publication is most likely to notify
interested persons. The same people who want notification of a
proposed permit action will also want notice that a permit has been
appealed.
Section 72.99 also provides that a copy of the notice be
mailed to all persons who commented on the proposed permit or
testified at a public hearing on the proposed permit, when the
notice is published in the Federal Register and at least sixty days
prior to the hearing. (I think this provision should be changed so
that notice is given as soon as the hearing is granted. The people
who commented on the permit are the ones who are most likely to
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want to intervene. In section 72.XX, we give people 15 days to
intervene after receipt of notice. Wouldn’t we rather know early
that people want to intervene?] The people who commented on the
proposed permit will likely be the ones most interested in the fact
that the permit has been appealed. Thus, the Agency believes that
these people should receive individual notice of the hearing. The
deadline by which they must receive notice also allows interested
people to intervene in the proceeding, if they meet the criteria of
section 72.XX, well in advance of when that hearing is scheduled.
(11) Section 72.100 Assignment of Administrative Law Judge
(Rework to reflect new procedure)
Section 72.100(a) provides that, no later than 7 days after
notice is given under section 72.XX that a petition for review has
been granted, the Chief Administrative Law Judge will refer the
proceeding to a Presiding Officer. The Agency believes that 7 days
is sufficient time for the Agency to refer the proceeding, without
causing undue delay in the proceeding.
(12) Section 72.101 Conferences
This section is consistent with Rule 16 of the Federal Rules
of Civil Procedure, which allows for a pretrial conference to
simplify the case in preparation for trial. The purpose of the
rule (and today’s proposal) is to ensure that the judge (or here,
the Presiding Officer) is involved in the proceeding early, and
sets limits and boundaries to expedite the proceeding. The Agency
believes that where an evidentiary hearing will involve many
issues, or complex issues, a prehearing conference may be useful to
set the scope of the hearing, and provide a “road map” for the
proceeding.
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Section 72.101(a) provides that the Presiding Officer, sua
sponte or at the suggestion of any party of record, may direct the
parties of record to a proceeding under this subpart to appear at
a specified time and place for one or more conferences or to submit
written materials, proposals, or briefs for the purpose of
considering, any matter set forth in this section. This provision
gives the Presiding Officer the discretion to require the parties
to participate in a pretrial hearing, and gives the parties an
opportunity to suggest one. The reason for holding a prehearing
conference was discussed above.
Section 72.101(b) provides that the Presiding Officer allow a
reasonable period before any briefing or hearing begins for the
orderly completion of all prehearing procedures and for the
submission and disposition of all prehearing motions. This
provision allows the Presiding Officer to set the time he or she
believes will be necessary in preparation for the hearing. This
will include any fact gathering that needs to be done, as well as
prehearing motions. The amount of time necessary will vary
depending on the nature and complexity of the issues involved in
the hearing. Thus, the Presiding Officer should have discretion to
set the amount of time necessary. In no event, however, shall the
amount of time granted exceed six months, since section 72.XX
provides that the hearing must take place within six months after
the request is granted.
Section 72.101(b) also provides that, where the circumstances
warrant, the Presiding Officer may call a prehearing conference to
inquire into the use of available procedures contemplated by the
parties and the time required for their completion, to establish a
schedule for their completion, and to set a schedule for any
hearing and briefing. This provision gives the Presiding Officer
discretion to find out how the parties intend to proceed, and the
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amount of time they believe will be necessary, before making the
determination of the amount of time which will be allowed before
the hearing. The provision is intended as an additional tool for
the Presiding Officer to use as necessary before setting the time
allowed for prehearing activities.
Section 72.101(c) provides that, in conferences held, or in
suggestions submitted, under paragraph (a) of this section, the
following matters may be considered:
o Simplification, clarification, amplification, or
limitation of the issues.
o Admission and stipulation of facts and of the genuineness
of documents.
The prehearing conference should be used to narrow and limit
the issues which will be discussed at the hearing, and to determine
on what facts the parties agree. Thus, the purpose of the
prehearing conference is to streamline the hearing by eliminating
from consideration anything on which the parties agree, and to
ensure that the parties agree on exactly what issues will be
considered at the hearing.
Section 72.101(c) also provides that in the conference, the
Presiding Officer may consider objections to the introduction into
evidence at the hearing of any written testimony, documents,
papers, exhibits, or other submissions proposed by a party;
provided that no objection will be raised to introducing the
administrative record of the permit into evidence; provided,
further, that at any time before the end of the hearing, any party
may make, and the Presiding Officer will consider and rule upon, a
motion to strike testimony or other evidence other than the
administrative record on the grounds of relevance, competency, or
materiality. This provision is designed to streamline the
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evidentiary hearing procedure by ensuring that parties object to
the introduction of evidence prior to the actual hearing. This
provision allows the Presiding Officer time to rule upon the motion
to strike evidence, and ensures that no party will ask for
additional time in the middle of the hearing because their evidence
was stricken and they need to re-evaluate or find additional
evidence. This provision also specifies that in no instance shall
a party be allowed to object to the admission of the administrative
record into evidence for the hearing. The Agency needs to ensure
that the administrative record be included in evidence in all
cases, since the administrative record provides the record of the
rationale for all Agency permitting decisions.
Section 72.101(c) also allows consideration of the following
matters in the prehearing conference:
o Taking official notice of any matters.
o Scheduling by the Presiding Officer of any of the
following as may be necessary and proper:
— The submission by each party of record of a
narrative statement of position on each factual
issue in controversy;
— The submission of written testimony and documentary
evidence (e.g., affidavits, data, studies, reports,
and any other type of written material) in support
of those statements; or
- Requests by any party for the production of
additional documentation, data, or other
information relevant and material to the facts in
issue.
By “taking official notice”, the Agency means “judicial
notice”, but on an administrative level. These are facts which
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will be deemed true during the proceeding. The Agency believes it
is appropriate to specify these matters before the hearing so that
parties do not waste time arguing about them during the hearing.
The Presiding Officer may also set a schedule for submissions.
This provision should also expedite the process by setting
deadlines by which parties must submit documents. Submission of
certain of these documents, such as the narrative statement and
written testimony, will expedite the process because review by the
Presiding Officer prior to the hearing will ensure his or her
familiarity with the issues and evidence, and will allow for more
rapid decisions on the issues.
Section 72.101(c) also provides that the following matters may
be considered in the conference:
o Grouping of parties with substantially similar interests
to eliminate redundant evidence, motions, objections, and
briefings;
o Such other matters that may expedite the hearing or aid
in the disposition of matters in dispute.
The Agency is proposing to allow the Presiding Officer to require
grouping of parties, so that redundant evidence is not presented
during the hearing, thus unnecessarily slowing the process. In
addition, the Agency believes that the Presiding Officer should be
given the discretion to consider other matters during the
prehearing conference which may expedite the hearing process.
There may be activities to expedite the process which the Agency
has not proposed here, and the Agency believes the Presiding
Officer should not be precluded from conducting these activities
simply because they are not proposed in today’s rule.
Section 72.101(d) (1) provides that, at a prehearing conference
or at such other reasonable time as is set by the Presiding
Officer, each party will make available to all other parties of
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record the names of any expert and other witnesses it expects to
call. Section 72.101(d) (1) also provides that, at the parties’
discretion, or at the request of the Presiding Officer, the party
will include a brief narrative summary of any witness’s anticipated
testimony. This provision is designed to ensure that neither party
is surprised by the witnesses called by the other party. The
Agency believes that this provision will promote fairness, and will
ensure that the evidentiary hearing is not needlessly delayed
because one party was surprised and wants extra time to prepare or
rebut testimony it did not expect.
Section 72.101(d) (2) provides that, at a prehearing conference
or at such other reasonable time as is set by the Presiding
Officer, the administrative record and copies of any written
testimony, documents, papers, exhibits, or materials which a party
expects to introduce into evidence will be marked for
identification as ordered by the Presiding Officer. This provision
is also designed to ensure that neither party is surprised by the
evidence introduced by the other, that all objections to evidence
are raised and disposed of before the hearing, and that the
administrative task of identifying evidence is accomplished before
the hearing takes place.
Section 72.101(e) allows witnesses, proposed written
testimony, and other evidence to be added or amended at any time
before the end of a hearing upon order of the Presiding Officer for
good cause shown. This provision is included in today’s rule so
that the results of the prehearing conference are not final to the
extent that injustice would result if they were not amended. Thus,
where good cause is shown, the Agency believes the Presiding
Officer should be granted the discretion to allow a party to add or
amend evidence.
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Section 72.101(f) requires that Agency employees and
consultants be made available as witnesses by the Agency to the
same extent that production of such witnesses is required of other
parties under section 72.99. The Agency believes that this
provision is necessary to ensure a fair and equitable hearing.
Agency employees and consultants should be available to testify as
necessary, just as witnesses are required of other parties.
Section 72.101(g) requires the Presiding Officer to issue a
written order (which may be in the form of a transcript) reciting
the actions taken at any conference(s) and setting forth the
schedule for any hearing and briefing. This section also requires
that the order include a written statement of the areas of factual
and legal agreement and disagreement, of the methods and procedures
to be used in developing any evidence, and of the respective duties
of the parties, and that this order control the subsequent course
of the review proceeding unless modified by the Presiding Officer
for good cause shown. The purpose of the prehearing conference it
to set the road map for the proceeding. Thus, the result should be
written so all parties have access to it and know what was agreed
upon. The agreements and rulings from the prehearing conference
should set the course of the hearing, because to do so will
streamline the hearing, as well as ensure that neither party is
unfairly surprised during the hearing. The Agency believes,
however, that there may be cases where the course of the hearing
should be modified by the Presiding Officer to prevent injustice.
Thus, today’s proposal includes a provision that the Presiding
Officer may modify the course of the hearing where there is good
cause to do so.
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(13) Section 72.102 Review and Hearing Procedure
Section 72.102 (a) (1) requires that the permit applicant always
bears the ultimate burden of persuading the Agency that a permit
under this part should be issued and not denied, and that this
burden does not shift. The Agency believes this provision is
appropriate because the permit shields the source from underlying
requirements of the Act. If the Agency denies the permit, it does
so because the affected source has not submitted an application and
compliance plan which will meet the requirements of the Act. To
obtain the benefit of the permit, and thus the permit shield, the
source should have the burden of proving that the Agency should
have issued the permit.
(D.A. 5—22—91: suggests deleting 72.102(a) (2)]
Section 72.102(a) (2) requires that any party to a review
proceeding who, by raising material issues of fact, contends:
o That particular conditions or requirements in a permit
are improper or invalid, and who desires either:
- The inclusion of new or different conditions or
requirements; or
- The deletion of those conditions or requirements;
or
o That the denial or issuance of a permit is otherwise
improper or invalid, will have the burden of going
forward to present an affirmative case.
The Agency believes that it is appropriate to give EPA action
the presumption of validity, and to require that the person
challenging the Agency action present an affirmative case. The
Agency is required to go through public comment on its proposed
permit, and to answer all comments and provide documentation
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supporting its permitting decision. Thus, EPA should be granted
the presumption of validity. In addition, the party challenging
the permit seeks to change the conditions of the permit outside of
the public comment channels. Such changes should not be granted
without an affirmative showing why they are necessary to implement
the Act. Such party should therefore be required to present an
affirmative case why the change should be made.
Section 72.102(b) provides that the Presiding Officer conduct
a fair and impartial hearing on the record, take action to avoid
unnecessary delay in the disposition of the proceedings, and
maintain order. Section 72.102(b) also provides that, for these
purposes, the Presiding Officer may:
o Arrange and issue notice of the date, time, and place of
hearings and conferences;
o Establish the methods and procedures to be used in the
development of the evidence;
o Prepare, after considering the views of the participants,
written statements of areas of factual and legal
disagreement among the participants;
o Hold conferences to settle, simplify, determine, or
strike any of the issues, or to consider other matters
that may facilitate the expeditious disposition of the
case;
o Administer oaths and affirmations;
o Regulate the course of the hearings and govern the
conduct of participants;
o Examine witnesses;
o Identify and refer issues for interlocutory decision
under Section 72.XX;
o Rule on, admit, exclude or limit evidence;
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o Establish the time for filing motions, testimony, and
other written evidence, briefs, findings, and other
submissions;
o Rule on motions and other pending procedural matters
pending, including but not limited to motions for summary
determination in accordance with Section 72.XX;
o Order that the hearing be conducted in stages when the
number of parties is large or the issues are numerous and
complex; and
o Take any other action not inconsistent with the
provisions of this subpart for the maintenance of order
at the hearing and for the expeditious, fair and
impartial conduct of the proceeding.
This section gives the Presiding Officer similar authority to
what a judge would be given in a courtroom. The Agency believes
that this authority is both necessary and appropriate to ensure the
efficient functioning of the evidentiary hearing process. The
evidentiary hearing is an adversary procedure similar to a trial,
only less resource-intensive. The purpose, as was discussed at the
beginning of this subpart, is to allow full factual development in
an administrative setting to ensure that the Agency has full
opportunity to consider its position prior to a judicial
proceeding. The Agency anticipates, however, that the results of
the evidentiary hearing, including resolution of factual disputes,
will be used in a judicial proceeding, if one occurs. The Agency
believes, therefore, that the evidentiary hearing should be
conducted in a manner which is similar to a judicial proceeding.
Thus, the Presiding Officer should have authority and
responsibilities over the hearing similar to the authority and
responsibilities of a judge over a trial. In addition, the Agency
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believes that conducting this hearing in a quasi-judicial manner
will ensure a more fair and equitable result for the parties
involved.
Section 72.102(b) (14) allows such examination and cross-
examination of witnesses as may be required for a full and true
disclosure of the facts. This section provides, however, that no
cross-examination will be allowed on questions of policy except
[ D.A. 5-22-92.: is the exception necessary?] to the extent required
to disclose the factual basis for permit requirements, or on
questions of law, or regarding matters that are not subject to
appeal in the evidentiary hearing. It also provides that no Agency
witnesses will be required to testify or be made available for
cross-examination on any such matters. The Agency believes that
this provision is appropriate. Examination and cross-examination
of witnesses will be necessary in many instances to resolve the
issues of the evidentiary hearing. As was discussed above,
however, the evidentiary hearing procedure should not be used to
debate issues of EPA policy or regulation. The Agency has
developed a direct appeal to the Administrator to consider these
issues. Agency witnesses should not be required to debate matters
of policy or regulation, since decisions on these matters
ultimately must be made by the Administrator. Because of human
error, it is possible that an Agency witness would make statements
about EPA policy which are not in accord with the actual policy as
interpreted by the Administrator. To avoid these situations, the
Agency is proposing that such cross—examination not be allowed. In
addition, such cross-examination would not further the progress of
the evidentiary hearing, which is supposed to consider factual
issues, not issues of policy and regulation.
Section 72.102(b) (14) also requires that, in deciding whether
or not to allow cross-examination, the Presiding Officer will
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consider the likelihood of clarifying or resolving a disputed issue
of material fact compared to other available methods. This section
requires that the party seeking the cross-examination has the
burden of demonstrating that this standard has been met. The
Agency believes that the Presiding Officer should have the
discretion to determine whether the cross-examination should be
allowed. The Presiding Officer will be the person in the best
position to judge whether cross-examination will effectively
clarify or resolve the issue. The Presiding Officer is also in a
position to determine whether such examination might raise issues
of policy or regulation which, as was discussed above, are not
allowed. The Agency believes that cross-examination should only be
allowed where it will materially advance the progress of the
hearing. The Agency is attempting to create procedures which will
allow for full factual development, yet will be expeditious. Thus,
the Agency is seeking to eliminate any unnecessary procedures.
Therefore, where the cross—examination will not clarify or resolve
issues, it should not be allowed. The Agency also believes that it
is reasonable to require the party seeking the cross-examination to
demonstrate the burden has been met. That person seeks to slow the
proceeding through the cross-examination. This should be allowed
where it will materially advance the proceeding, but should not be
allowed in other instances. Therefore, the party seeking cross-
examination should have the burden of demonstrating that the
standard has been met.
Section 72.102(c) requires that all direct and rebuttal
evidence at an evidentiary hearing be submitted in written form,
except in the unusual situation where upon motion and good cause
shown, the Presiding Officer determines that oral presentation of
the evidence on any particular fact will materially assist in the
resolution of the issues. This section also requires that written
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testimony be prepared in narrative form. Generally, the Agency
believes that the kind of technical and legal evidence used to
appeal an Acid Rain permit can be presented most effectively in
written, rather than oral, form. The Agency is therefore proposing
that evidence be prepared in written form unless a party shows good
cause why oral evidence would be more appropriate. The Agency
proposed to require that written evidence be submitted in narrative
form to ensure readability.
Section 72.102(d) (1) requires that the Presiding Officer admit
all relevant, competent and material evidence, except evidence that
is unduly repetitious. This section also provides that evidence
may be received at any hearing under this subpart even though
inadmissible under the Federal Rules of Evidence, -U.S.C.— (28
U.S.C. 2072, 2075?), and that the weight to be given evidence will
be determined by its reliability and probative value. The Agency
proposes that the Federal Rules of Evidence not be followed in
evidentiary hearings under this subpart to ensure that pro se
parties are not disadvantaged by their lack of familiarity with
legal rules. The Agency proposes that only relevant, competent,
and material evidence is admitted so time will not be wasted in the
hearing with evidence which will not materially advance the
proceeding. The Agency also proposes that repetitious evidence be
excluded because it will slow the proceeding without advancing
resolution of issues. The Agency also believes that the Presiding
Officer, as the primary finder of fact in the evidentiary hearing,
should have discretion in determining weight given to the evidence.
The Presiding Officer should, however, consider the reliability and
probative value of the evidence when determining what weight to
give it.
Section 72.102(d)(2) of today’s proposal requires that the
administrative record for the permit be admitted and received in
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evidence. The rationale for this requirement was discussed above.
Section 72.102(d) (2) also provides that, upon motion by any party
the Presiding Officer may direct that a witness be provided to
sponsor a portion or portions of the administrative record. The
Agency proposes this requirement to ensure that, as appropriate,
EPA provides a person who was responsible for and understands the
rationale behind certain materials in the administrative record.
Thus, the party challenging the permit will have an opportunity to
asks questions about these provisions of the administrative record.
The Agency believes that, while the administrative record should be
admitted into evidence, the administrative record should not always
be accepted without question.
Section 72.102(d) (2) also provides that the Presiding Officer,
upon finding that the standards in section 72.102(b) (14) have been
met, will direct the appropriate party to produce the witness for
direct or cross—examination. This provision affords a challenging
party the opportunity to question facts and factual assumptions in
the administrative record, and perhaps to present evidence opposing
the evidence in the administrative record. The standards of
section 72.l02(b)(14) must be met, however, to ensure that
questions of policy and regulation are not raised at the
evidentiary hearing.
Section 72.102(d) (2) provides that, if a sponsoring witness
cannot be provided, the Presiding Officer may reduce the weight
accorded to the appropriate portion of the record. Thus, if the
Agency is unable to provide someone who was responsible for and
with knowledge of the rationale behind portions of the
administrative record, those portions should not be accorded as
much weight as portions that are sponsored and defended.
Section 72.102(d) (3) provides that, whenever any evidence or
testimony is excluded by the Presiding Officer as inadmissible, all
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such evidence will remain a part of the record as an offer of
proof. This section also allows the party seeking the admission of
oral testimony to make an offer of proof, by means of a brief
statement on the record describing the testimony excluded. The
Agency proposes to include this provision so that, if the
Administrator reverses the ruling of the Presiding Officer and
decides that the evidence should have been admitted, the evidence
can be considered and ruled upon without holding an entirely new
evidentiary hearing. The Agency believes this provision will
conserve resources and expedite the permit appeals process where
materials were erroneously excluded from evidence.
Section 72.102(d) (4) provides that, when two or more parties
have substantially similar interests and positions, the Presiding
Officer may limit the number of attorneys or other party
representatives who will be permitted to cross-examine and to make
and argue motions and objections on behalf of those parties. This
section, however, allows each party to engage in cross-examination
and argument relevant to matters not adequately covered by previous
cross-examination or argument. The Agency proposes this provision
to expedite the proceeding. The Agency believes that this
provision will not undermine the goal of full factual development
during the hearing, because only duplicative motions, objections,
and cross-examinations will be prohibited.
Section 72.102(d) (5) requires that rulings of the Presiding
Officer on the admissibility of evidence or testimony, the
propriety of cross-examination, and other procedural matters will
appear in the record of the hearing, and will control further
proceedings, unless reversed as a result of an interlocutory appeal
taken under section 72.107. The Agency believes the necessity of
this provision is self-explanatory. The rulings of the Presiding
Officer must control the proceedings for the hearing to occur in an
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efficient and orderly manner. While some adverse rulings may be
appealable under section 72.107 prior to the Presiding Officer’s
final decision, the Agency believes that the hearing process would
be needlessly slowed if parties could appeal every adverse ruling,
or if those rulings did not control further proceedings.
Section 72.102(d)(6) requires that all objections be made
promptly or be deemed waived. The Agency believes that, with the
exception of purely legal or policy issues, appeals to the
Administrator should only be taken on those issues on which the
Presiding Officer has had an opportunity to rule. Thus, a party
must object so that the Presiding Officer can rule on the
objection. Since the Administrator should not consider issues on
which the Presiding Officer did not rule, failure to object will
result in waiver of the ability to appeal on that issue.
Section 72.l02(d)(6) also provides that parties will be
presumed to have taken exception to an adverse ruling, and that no
objection will be deemed waived by further participation in the
hearing. The Agency believes this section will expedite the
proceedings by eliminating the necessity of taking exception to
every adverse ruling. In addition, the Agency proposes that
objections should not be deemed waived by further participation in
the hearing. This provision should also expedite the proceedings
by minimizing the need for interlocutory appeals under section
72.107 and by ensuring that the Administrator rules on a full
record, so if decisions of the Presiding Officer are reversed, a
new evidentiary hearing will not be necessary.
(14) Section 72.103 Motions
Section 72.103(a) allows any party to file a motion (including
a motion to dismiss a particular claim on a contested issue) with
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the Presiding Officer on any matter relating to the proceeding.
The Agency believes this provision is self-explanatory. Parties to
the proceeding should be able to file motions regarding the
proceeding.
Section 72.103(a) also requires that all motions be in writing
and served as provided in section 72.91 except those made on the
record during an oral hearing before the Presiding Officer.
Generally, the Agency believes that motions should be in writing.
A transcript is taken during an oral hearings, however. Thus, the
Presiding Officer has a written record of the motion and the party
does not need to file one.
Section 72.103(b) allows, except as provided at (d), within 10
days after service of any written motion, any party to file a
response to the motion. This section also provides that the time
for response may be shortened to 3 days or extended by 10 days by
the Presiding Officer for good cause shown. The Agency believes
that parties should have an opportunity to respond to motions by
opposing parties. To ensure an expeditious proceeding, however,
the Agency believes that the time allowed for response should be
limited to ten days. This will allow parties sufficient time to
respond but will not unduly delay the proceeding. The Agency
recognizes that in some instances, more or less time will be
appropriate. Thus, today’s proposal gives the Presiding Officer
discretion to shorten or lengthen the time for response, for good
cause shown.
Section 72.103(c) provides that once a presiding officer is
assigned to the proceeding, any party to an evidentiary hearing may
make a motion, with or without supporting affidavits and briefs,
for a summary determination in its favor on any issue being
adjudicated, on the basis that there is no genuine issue of
material fact for determination. This provision is consistent with
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Rule 56 of the Federal Rules of Civil Procedure. Where there is no
genuine issue of material fact, there is no need for an evidentiary
hearing. Summary determination can greatly expedite the proceeding
by eliminating need for presentation of evidence where there is no
factual issue. Thus, today’s proposal allows parties to motion for
summary determination.
(D.A. 5-22-91: suggests this paragraph be deleted]
Section 72.103(c) requires that any motion for summary
determination be made in writing and be filed no earlier than 45
days before the date set for the hearing. This section also allows
oral motions to be made after the presentation of evidence by the
petitioners, or after presentation of all the evidence before the
close of the hearing. The Agency believes that motions for summary
determination should not be made or granted before each side has
had sufficient opportunity to investigate the facts and determine
whether there is a genuine issue of material fact. Thus, the
Agency believes that such motion should be made, at the earliest,
45 days before the date set for the hearing. This timing will
allow an expedited process if there is no issue, but will allow
sufficient time for factual investigation to ensure that there is
no issue. The Agency also proposes to allow such motions to be
made after presentation of the evidence or before the close of the
hearing. This provision gives the parties discretion on when to
make such a motion.
Section 72.103(d) provides that any other party may, within 30
days after service of a written motion under paragraph (c), file
and serve a response to it, or a counter—motion f or summary
determination. The Agency believes that parties opposing a motion
for summary determination, or making counter motions for summary
determination, should have longer than the ten days provided in (b)
to prepare their responses because generally, preparation of these
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responses will be more difficult and/or more time-consuming than
responses to other motions. In addition, parties should have
longer to prepare their responses because more is at stake for when
a motion has been made for summary determination. If the opposing
party does not prepare an adequate response, the motion may be
granted and the issue will no longer be considered during the
hearing.
Section 72.103(d) also provides that, when a motion for
summary determination is made and supported, any party opposing the
motion may not rest upon mere allegations or denials, but must
show, by affidavit or by other materials subject to consideration
by the Presiding Officer, that there is a genuine issue of material
fact for determination at the hearing. The Agency believes that,
where one party has made and supported a motion for summary
judgment, the opposing party should have to support their
opposition. The Agency wants to ensure an expeditious hearing
process, and thus does not want to encourage delaying tactics such
as denying a motion for summary determination without any evidence.
(D.A. 5-22—91: suggests this paragraph be deleted)
Section 72.103(e) requires that affidavits be made on personal
knowledge and belief, will set forth only those facts that would be
admissible into evidence, and will show affirmatively that the
affiant is competent to testify to the matters stated therein. The
rationale behind this requirement was discussed above. The
requirement is reiterated here to emphasize that opposition to a
motion for summary determination cannot rest on mere denials or
allegations.
Section 72.103(f) allows the Presiding Officer to set a motion
under this section for oral argument and call for the submission of
proposed findings, conclusions, briefs, or memoranda of law. This
provision acknowledges that in some instances, the Presiding
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Off icer may want additional information before ruling on a motion,
and gives the Presiding Officer discretion to ask for this
information if he or she needs it.
Section 72.103(f) requires that the Presiding Officer rule on
the motion not more than 30 days after the date responses to the
motion are filed under this section. The Agency included this
provision to ensure that the evidentiary hearing process proceeds
expeditiously.
Section 72.103(g) requires that, if all factual issues are
decided by summary determination prior to the hearing, no hearing
will be held and the Presiding Officer will prepare a proposed
decision under section 72.106. The Agency believes that this
provision is sensible. Clearly, if there are no genuine issues of
material fact to be determined, there is no need to hold a hearing.
In these cases, the Presiding Officer should simply prepare an
initial decision.
Section 72.103(g) also requires that, if a summary
determination is denied or if partial summary determination is
granted, the Presiding Officer will issue a memorandum opinion and
order, interlocutory in character, and the hearing will proceed on
the remaining issues. This section also specifies that appeals
from interlocutory rulings are governed by section 72.107. The
Agency believes the Presiding Officer should notify the parties of
whether the motion for summary determination has been granted,
partially granted or denied. The opinion and order, however,
should be interlocutory, so that the Presiding Officer can, upon
motion of either party, modify the ruling later in the hearing
process if additional information shows that he or she should do
so. Issues decided by summary determination will no longer be part
of the hearing, and the hearing will continue on all other issues.
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Section 72.103(h) provides that, should it appear from the
affidavits of a party opposing a motion for summary determination
that the party cannot, for reasons stated, present by affidavit or
otherwise facts essential to justify his or her opposition to the
motion, the Presiding Officer may deny the motion or order a
continuance to allow additional affidavits or other information to
be obtained by the opposing party. The Agency included this
provision to allow the Presiding Officer discretion to deny a
motion for summary determination although the opposing party has
not yet provided information to justify that denial. The Agency
believes that the Presiding Officer is likely to use this provision
is cases where the motion for summary determination has been made
early in the process, and the opposing party has not yet had an
opportunity to gather sufficient facts to oppose the motion
successfully. In these instances, there may be a genuine issue of
material fact. Thus, the Presiding Officer should have the
authority to deny the motion, or issue a continuance to allow the
opposing party sufficient time to gather facts in support of their
position.
(15) Section 72.104 Record of Evidentjary Hearings and Oral
Arauments
Section 72.104(a) requires that all orders issued by the
Presiding Officer, transcripts of oral hearings or arguments,
written statements of position, written direct and rebuttal
testimony, and any other data, studies, reports, documentation,
information and other written material of any kind submitted in the
proceeding will be part of the appeal record and will be available
to the public, in the office of the Hearing Clerk, as soon as it is
received in that office. Clearly, there needs to be a record of
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the evidentiary hearing proceeding. This record should be
available to the public, so that interested persons can review the
evidence and any determinations made by the Presiding Officer. In
addition, the hearing record will be used by the Administrator in
the event of an appeal to determine whether the Presiding Officer
ruled appropriately on the issues. This record may also be used in
the event of a judicial proceeding.
Section 72.104(b) requires that evidentiary hearings and oral
arguments be either stenographically reported, or tape or video
recorded, and thereupon transcribed. This provision is necessary
to ensure a complete record of the entire evidentiary hearing
proceeding. As was discussed in the public hearing section of
today’s proposal, the Agency believes that stenographic reporting,
and tape and video recording are all acceptable methods of
recording the hearing.
Section 72.104(b) also requires that, after the hearing, the
reporter will certify and file with the Hearing Clerk:
o The original of the transcript, and
o The exhibits received or offered into evidence at the
hearing.
All other submissions will have been filed with the Hearing Clerk
prior to the hearing. To ensure a complete record of the entire
evidentiary hearing proceeding, the Hearing Clerk needs to receive
the original of the transcript and all exhibits from the hearing.
Section 72.104(c) requires that the Hearing Clerk promptly
notify each of the parties of the filing of the certified
transcript of the proceedings. This section also provides that any
party who desires a copy of the transcript of the hearing may
obtain a copy from the Hearing Clerk upon payment of costs. This
provision is consistent with the rules of discovery under the
Federal Rules of Civil Procedure. The Agency believes that parties
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should be notified of the availability of the certified transcript,
and that parties should be able to obtain copies of the transcript.
The Agency believes that, consistent with other Agency programs and
policy, the parties should be responsible for covering copying
costs.
Section 72.104(d) requires that the Presiding Officer allow
witnesses, parties and their counsel an opportunity to submit such
written proposed corrections of the transcript of any oral
testimony or argument, pointing out errors that may have been made
in transcribing the testimony or argument. This provision is
consistent with the rules of discovery under the Federal Rules of
Civil Procedure. The parties to the proceeding should have an
opportunity to identify errors in transcription, because this
record will be used by the Presiding Officer when ruling on the
claims of the parties.
Section 72.104(d) also requires that, except in unusual cases,
no more than 7 days be allowed for submitting such corrections from
the day a complete transcript of the hearing becomes available.
This section also specifies that such corrections be incorporated
into the certified transcript along with any objections made to
proposed corrections filed within 7 days. The Agency believes that
7 days should be ample time for parties to review the transcript
and propose corrections. Allowing longer time would unnecessarily
delay the proceeding in most cases. The Agency believes, however,
that in extremely long and complicated hearings, it may be
appropriate to grant the parties a longer review time. Thus the
Agency is giving the Presiding Officer discretion to allow a longer
time as appropriate. The Presiding Officer may also specify a
shorter time for submission of proposed correction. As with all
other submissions, a copy must be served on the opposing party, who
may object to incorporation of the changes. The Agency is allowing
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itself 7 days to incorporate these changes and objections into the
transcript.
(16) Section 72.105 Proposed findings of fact and supporting;
brief
Section 72.105 specifies that, within 45 days after the
certified transcript is filed, or, if there is no oral hearing or
argument, within 60 days after the assignment of a presiding
officer to the proceeding, any party may file with the Hearing
Clerk proposed findings of fact and conclusions of law and a brief
in support thereof. This section requires that briefs contain
appropriate references to the record, and that a copy of these
findings, conclusions, and brief be served upon all other parties
and the Presiding Officer. The Agency believes that parties should
have an opportunity to submit concluding briefs prior to when the
Presiding Officer decides on the issues. The Agency believes 45
days should be ample time for parties to prepare these briefs based
on all submissions from the proceeding and the transcript of the
hearing. Allowing 45 days also should not unduly delay
determination of the issues. This section also emphasizes that, as
with all other submissions, a copy must be served on all other
parties and the Presiding Officer.
Section 72.105 also allows the Presiding Officer, for good
cause shown, may extend the time for filing the proposed findings
and conclusions and/or the brief. The Agency believes that there
may be occasions where additional time is needed for submission of
concluding briefs. The Agency believes that these situations will
rarely occur, but EPA is proposing to give the Presiding Officer
discretion to allow additional time for good cause shown.
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Section 72.105 also provides that the Presiding Officer may
allow reply briefs. The Agency believes that reply briefs will not
always be necessary or appropriate. Therefore, EPA is proposing to
give the Presiding Officer discretion to determine whether or not
reply briefs should be allowed for a particular proceeding.
(17) Section 72.106 Proposed Decision
Section 72.106(a) of today’s proposal requires that the
Presiding Officer review and evaluate the record, including the
proposed findings and conclusions, any briefs filed by the parties
and any interlocutory decisions under section 72.107 and issue and
file a proposed decision with the Hearing Clerk. The Agency
believes this provision is self-explanatory; the Presiding Officer
must issue a decision on the issues presented at the evidentiary
hearing. This decision should be based on the materials in the
record of the proceeding.
Section 72.106(a) also requires that the Hearing Clerk
immediately serve copies of the proposed decision upon all parties
(or their counsel) of record and upon the Administrator. Clearly,
each party to the proceeding should receive a copy of the initial
decision of the Presiding Officer. In addition, the Agency is
proposing that a copy be filed with the Administrator so that the
Administrator can make a determination whether to review the
decision sua sponte , pursuant to section 72.108.
Section 72.106(b) specifies that the proposed decision of the
Presiding Officer automatically become the final decision 30 days
after its service unless within that time:
o A party files objections to the proposed decision with
the Administrator pursuant to section 72.108 (change in
reg — reference is wrong there]; or
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o The Administrator sua sponte files a notice that he or
she will review the decision pursuant to section 72.108
(add to reg].
The Agency is proposing that a party may only appeal the
initial decision of the Presiding Officer within 30 days of
service. After that time, the decision becomes final and no appeal
may be taken. This appeal to the Administrator is a prerequisite
to a judicial appeal of the Agency decision. The thirty day limit
is consistent with the Federal Rules of Appellate Procedure, and
the Agency believes that thirty days provides sufficient time for
a party to file an appeal. In addition, the Administrator also
must decide within those thirty days whether or not to review the
decision. If no appeal is taken, and if the Administrator does not
decide to review the decision, the initial decision becomes final
thirty days after notice.
(18) Section 72.107 Interlocutory appeal
Section 72.107(a) specifies that, except as provided in this
section, appeals to the Administrator may be taken only under
section 72.108. The Agency believes that, generally, appeals to
the Administrator should be allowed only on the initial decision of
the presiding Officer, that is, the decision that occurs at the end
of the evidentiary hearing process. As was discussed above,
allowing appeals in the middle of the hearing process could
unnecessarily delay the proceeding. The Agency acknowledges,
however, that sometimes an interlocutory appeal will advance the
proceeding. The Agency has therefore adopted an interlocutory
appeal approach similar to that in 28 U.S.C 1292(b) (check this
cite].
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Section 72.107(a) requires that appeals from orders or rulings
may be taken under this section only if the Presiding Officer, upon
motion of a party, certifies those orders or rulings to the
Administrator for interlocutory appeal on the record. Consistent
with 28 U.S.C. Section 1292(b), the Agency proposes that an
interlocutory appeal only be allowed if the Presiding Officer
certifies the appeal. This provision is designed to ensure that
the matters sent to the Administrator on interlocutory appeal are
of sufficient importance to merit delaying the hearing procedure
pending determination of the interlocutory appeal.
Section 72.107(a) also requires that requests to the Presiding
Officer for certification of an interlocutory appeal must be filed
in writing within 10 days of service of notice of the order, ruling
or decision, and will state briefly the grounds relied on. The
Agency believes the request should be filed within ten days of the
ruling because the ruling of the Presiding Officer which is being
appealed will be controlling the remainder of the proceeding.
Depending on its importance to the remainder of the hearing, the
Presiding Officer may wish to suspend the hearing pending
resolution of the appeal to avoid a new hearing in case of the
Administrator’s reversal. Thus, the request for certification
needs to be filed promptly. The Agency believes ten days is
sufficient. This timing is also consistent with 28 U.S.C. Section
1292(b)
Section 72.107(b) provides that the Presiding Officer may
certify an order or ruling for interlocutory appeal to the
Administrator if:
o The order or ruling involves an important question on
which there is substantial ground for difference of
opinion, and
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o Either an immediate appeal of the order or ruling will
materially advance the ultimate completion of the
proceeding; or a review after the final order is issued
will be inadequate or ineffective.
This standard is the same as the standard set forth at 28
U.S.C. Section 1292(b). The Agency believes this standard is
appropriate to ensure that interlocutory appeals are only allowed
when there is an issue of overriding concern which should not wait
until after the hearing to be resolved.
Section 72.107(c) provides that, if the Administrator decides
that certification was improperly granted, he or she will decline
to hear the appeal. This provision gives the Administrator the
discretion to determine whether or not the issue actually meets the
standard set forth at paragraph (b), above. The discretion given
here to the Presiding Officer is similar to the discretion given
the appellate court under 28 U.S.C. Section 1292(b).
Section 72.107(c) also provides that the Administrator will
accept or decline all interlocutory appeals within 30 days of their
submission, and that if the Administrator takes no action within
that time, the appeal will be automatically dismissed without
prejudice. The Agency included this provision in today’s proposal
to ensure that the evidentiary hearing process is not unduly
delayed pending determination by the Administrator of whether or
not to hear the appeal.
Section 72.107(d) specifies that, when the Presiding Officer
declines to certify an order or ruling to the Administrator for an
interlocutory appeal, that decision may be reviewed by the
Administrator only upon appeal from the proposed decision of the
Presiding Officer, except when the Administrator determines, upon
motion of a party and in exceptional circumstances, that to delay
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review would not be in the public interest. The Agency clarifies
in this provision that following denial of a certification, a party
may appeal the ruling at issue only at the end of the evidentiary
hearing process. The Agency recognizes, however, that there may be
unusual circumstances which warrant an interlocutory appeal
although the Presiding Officer has declined to certify one. The
Agency therefore proposes to allow the party to make a motion to
the Administrator requesting reconsideration of the denial of
certification. The Agency anticipates that such motions will
rarely be made, and even more rarely granted.
Section 72.107(d) requires that such motion be made within 5
days after receipt of notification that the Presiding Officer has
refused to certify an order or ruling for interlocutory appeal to
the Administrator. The Agency believes that if it is to allow such
motions, they should be made as quickly as possible following the
decision of the Presiding Officer to ensure that the evidentiary
hearing process is disrupted as little as possible. Thus, the
Agency believes that parties should be allowed only five days to
make such a motion following notice of the Presiding Officer’s
decision.
Section 72.107(f) allows the Presiding Officer, in exceptional
circumstances, to stay the proceeding pending a decision by the
Administrator upon an order or ruling certified by the Presiding
Officer for interlocutory appeal, or upon the denial of such
certification by the Presiding Officer. As was mentioned above,
there may be circumstances where it is appropriate to wait until
the appeal is completed before continuing the hearing. This
provision acknowledges this possibility and gives the Presiding
Officer discretion to do so.
Section 72.107(g) provides that the failure of a party to
request an interlocutory appeal will not prevent taking exception
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to an order or ruling in an appeal under section 72.108. The
Agency believes that interlocutory appeals should not be
encouraged, and parties who do not request interlocutory appeals
should not be penalized. Therefore, the Agency is proposing that
failure to request an interlocutory appeal not jeopardize a party’s
ability to appeal that issue to the Administrator following the
completion of the hearing.
(19) Section 72.108 Appeal to the Administrator
Section 72.108(a)(l) provides that, within 30 days after
service of a proposed decision, or a denial in whole or in part of
a petition for review or request for an evidentiary hearing, any
party or petitioner may object to any matter set forth in the
proposed decision or denial, or any adverse order or ruling to
which the party objected during the proceeding, by filing
objections with the Administrator. This provision allows appeals
directly to the Administrator where there is a disputed issue of
law or policy. In addition, it allows appeal where a request for
an evidentiary hearing has been denied, and where a party received
an adverse ruling or order during an evidentiary hearing (to which
an exception was taken). In these three circumstances, the Agency
believes that an appeal to the Administrator should be allowed.
Section 72.108(a) (1) also requires that the filing include a
statement of the supporting reasons and a showing that the proposed
decision, the initial permitting to the extent affirmed by the
proposed decision, is based on a finding of fact or legal
conclusion that is clearly erroneous or on an exercise of
discretion or policy determination that is arbitrary and
capricious. This provision mimics the standard of review when
appealing to the Administrator under the PSD, RCRA, and NPDES
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programs. The Agency sees no reason to deviate from this standard
for purposes of reviewing appeals of Acid Rain permits.
Section 72.108(a) (2) provides that, within 15 days after
service of a petition for review under paragraph (a) of this
section, any other party to the proceeding may file a responsive
petition. The Agency believes that, to ensure a fair and thorough
review by the Administrator, the other parties to the proceeding
deserve an opportunity to present their position.
Section 72.108(a) (4) provides that, within 30 days of a
proposed decision or denial of a request for an evidentiary
hearing, the Administrator may, sua sponte , review such decision.
This provision reiterates section 72.106(b)(2), and allows the
Administrator to review any denial of a request for an evidentiary
hearing, whether or not that denial was appealed. The Agency
believes that this provision should be included to ensure that the
Administrator has the discretion to review decisions which may have
important policy implications.
Section 72.108(a) (4) also requires that, within 7 days after
the Administrator has decided under this section to review an
initial decision or the denial of a request for an evidentiary
hearing, notice of that decision will be served by mail upon all
affected parties. This provision was included to ensure that all
parties receive expeditious notice that the Administrator will
review the decision, so that briefs and other materials can be
prepared as appropriate.
Section 72.108(c) (1) requires that, within 30 days following
the filing of the petition for review under this section, the
Administrator issue an order either adopting or modifying the
proposed decision in whole or in part. Before issuing such an
order, the Administrator may permit the parties to file briefs,
pursuant to a schedule established by written notice. (add a
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provision that petition is deemed denied if not granted within 30
days - final Agency action?] The Agency believes that 30 days will
be sufficient time for the Administrator to determine whether or
not to review the decision. The Agency also believes that the
Administrator should have the discretion to determine for which
issues, if any, the petition will be granted. This provision
should also conserve resources and expedite the review process
since the Administrator can determine that there is sufficient
information in the record to rule on certain issues, and notify the
parties that those issues need not be briefed. This provision may
save one to three months of review time, which would have been
expended waiting for briefs to be submitted and reviewing them.
Section 72.108(c) (2) requires that, upon granting a petition
for review of an initial decision, a denial of a request for a
hearing, or any other order or ruling at such hearing, the Hearing
Clerk will promptly forward a copy of the hearing record to the
Judicial Officer and will retain a complete duplicate copy of the
record. (Note changes here - insert parallel changes in reg.]
This provision is self-explanatory; the Administrator needs a copy
of the record to review the decision adequately.
Section 72.108(c) (3) requires that, upon granting a petition
for review of any initial permitting decision challenged solely on
the basis of an issue of law, the Hearing Clerk shall promptly
forward a copy of the permit administrative record to the Chief
Judicial Officer, and shall retain a complete duplicate copy. This
provision is needed for the same reason as (C) (2) above. The
Administrator should have the record to rule on the issue of law.
Section 72.108(d) provides that, notwithstanding the grant of
a petition for review or a determination under paragraph (b) of
this section to review a decision, the Administrator may summarily
affirm without opinion an initial decision or the denial of a
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request for an evidentiary hearing, or a final permit action
appealed solely on the basis of an issue of law. The Agency
included this provision so that no party can claim that, once a
petition for review has been granted, they have a right a written
opinion by the Administrator.
Section 72.108(e) specifies that a petition to the
Administrator under paragraph (a) of this section for review of any
initial decision or the denial of an evidentiary hearing, or a
final permit action challenged solely on the basis of an issue of
law, is, under 5 U.S.C. 704, a prerequisite to the seeking of
judicial review of the final decision of the Agency under section
307 of the Act. The Agency included this provision to remind
petitioners that courts generally will not accept challenges to
Agency decisions unless the petitioner has first gone through the
administrative appeals process.
Section 72.108(f) specifies when final Agency action occurs.
Following final Agency action, the petitioner has a right to
judicial review of the Agency decision. Section 72.108(f) provides
that, if a party timely files objections or if the Athuinistrator,
sua sponte orders review, then, for purposes of judicial review,
final Agency action on an issue occurs as follows:
o If the Administrator affirms the proposed decision, or
denial of review an hearing then the affirmance becomes
the final Agency action.
o If the Administrator issues a decision without remanding
the proceedings then the final permit, redrafted as
required by the Administrator’s decision, will be
reissued and served upon all parties to the appeal and is
the final Agency action.
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o If the Administrator issues a decision remanding the
proceeding, then final Agency action occurs upon
completion of the remanded proceeding, including any
appeals to the Administrator of the remanded proceeding.
Other Agency programs such as PSD, RCRA, and NPDES use these
definitions of final Agency action. The Agency believes they are
appropriate for purposes of Acid Rain, and has included them in
today’s proposal.
(D.A. 5—22—91: suggests deleting 72.108(g)]
Section 72.108(g) allows the petitioner to file a brief in
support of the petition for review within 21 days after the
Administrator has granted a petition for review. This section also
allows any other party to file a responsive brief within 21 days of
service of the petitioner’s brief and allows the petitioner then to
file a reply brief within 14 days of service of the responsive
brief. This section also allows any person to file an ainicus brief
for the consideration of the Administrator within the same time
periods that govern reply briefs. Section 72.108(g) also provides
that, if the Administrator determines, sua sponte , to review an
initial decision or denial of a request for an evidentiary hearing,
the Administrator will notify the parties of the schedule for
filing briefs. The Agency adopted this schedule for submission of
briefs from the evidentiary hearing process in the NPDES program.
The Agency believes that the timing and approach are reasonable.
Section 72.108(h) specifies that review by the Administrator
of a proposed decision or the denial of a petition for review or
request for an evidentiary hearing will be limited to the issues
specified under paragraph (a) of this section, except that after
notice to all parties, the Administrator may raise and decide other
matters which he or she considers material on the basis of the
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record. The Agency believes that the Administrator should have the
discretion to review any matters presented in the record regarding
the permitting decision or the rulings under the evidentiary
hearing. Important issues of policy may have been decided that,
although not challenged in the appeal to the Administrator, the
Administrator should review to ensure their consistency with Agency
policy. The Agency believes, however, that if the Administrator
does decide to raise such issues, the parties to the proceeding
should be given notice and an opportunity to present their
opinions.
Section 72.108(i) provides that review by the Administrator of
an appeal of any final permit action challenged solely on the basis
of an issue of law be limited to such issues. The Agency believes
that the Administrator should not raise factual issues where none
of the parties believe that there is a factual issue in dispute.
In addition, the record where there is only a disputed issue of law
probably will not contain sufficient information regarding other
possible issues for the Administrator to make an appropriate
determination of the need for review of issues that were not
raised. The Agency therefore proposes that, where an appeal is
raised solely on the basis of an issue of law, the Administrator
not be granted the discretion to rule on other matters involved in
the permitting decision.
[ Concerns]
1. Need to expedite appeals process particularly since
initial permitting decision-already went through notice and
comment.
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2. Need to provide personnel (i.e., presiding officers) to
conduct appeals for the Administrator and provide opportunity for
Administrator to correct AU determinations if it is necessary.
OPTION I
1. Allow petitions for review on factual, legal, and policy
issues (including request for evidentiary hearing) with entire
proceeding conducted by the presiding officer (not just evidentiary
hearing), however:
a. limit evidentiary hearing to disputed issues of material
fact, and limit evidence to such factual issues, and bar
evidence on legal and policy issues .
b. standard of review to be applied by the presiding
officer:
* Factual finding or legal conclusion underlying
initial permitting decision is “clearly erroneous”;
Exercise of discretion on policy determination
underlying initial permitting decision is
“arbitrary and capricious”.
c. proposed decision by the presiding officer.
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2. Presiding officer’s proposed decision becomes final
agency action unless the Administrator issues a notice of review
within certain period of time.
a. The parties may file objections to the proposed decision.
b. In issuing notice of review, the Administrator has
discretion to allow briefs by the parties.
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Subpart H — Appeal Procedures for Acid Rain Permits
[ Region V: Use less formal, more expeditious procedure.]
§ 72.90 Applicability.
(a) The permit appeal procedures and evidentiary hearing
procedures of this subpart shall be available to appeal any initial
permitting decision issued by the Administrator or Acid Rain
portion of a permit issued by a State permitting authority under
this part, or to appeal a denial by a State permitting authority of
a application for a permit under this part.
(b) Acid Rain permit appeals shall be filed with the U.S. EPA
Regional Office for the Region in which the affected unit is
located, at the address provided in § 72.4. Copies of permit
challenges shall be sent to the U.S. EPA Acid Rain Division, and,
in the case of a State issued permit, to the permitting authority.
§ 72.91 Filing and Submission of Documents.
(a) All submissions authorized or required to be filed with EPA
under this subpart shall be filed with the Regional Hearing Clerk
for the Region where the affected unit is located at the address
specified in (add an Appendix], unless otherwise provided by
regulation. Submissions shall be considered filed on the date on
which they are received by such Regional Hearing Clerk.
(b) All original submissions shall be signed by the person making
the submission, or by an attorney or other authorized agent or
representative. In the case of an affected unit, all submissions
shall be signed by the designated representative. The name,
address, telephone, facsimile number, and representative capacity
(if any) of the person shall be provided.
(c) (1) All data and information referred to or in any way relied
upon in any submission shall be included in full and may not be
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incorporated by reference, unless previously submitted as part of
the administrative record for the initial permitting decision;
(2) Notwithstanding subparagraph (1), State or Federal statutes
and regulations, judicial decisions published in a national
reporter system, officially issued EPA docuinents of general
applicability, and any other generally available reference material
may be incorporated by reference. Any party incorporating
materials by reference shall provide copies of the materials upon
request by the Administrator, the Judicial Officer, or the
Presiding Officer.
(3) If any part of any submission is in a foreign language, it
shall be accompanied by an English translation verified under oath
to be complete and accurate, together with the name, address, and
a brief statement of the qualifications of the person making the
translation. Translations of material in a foreign
language shall be accompanied by copies of the original material.
(4) Where relevant data or information is contained in a document
also containing irrelevant matter, either the irrelevant matter
shall be deleted or the relevant portions shall be indicated.
(5) Failure to comply with the requirements of this section or
any other requirement in this subpart may result in the
noncomplying portions of the submission being excluded from
consideration. If the Judicial Officer, the Administrator, or the
Presiding Officer, on motion by any party or sua sponte , determines
that a submission fails to meet any requirement of this subpart,
the Judicial Officer, Administrator, or Presiding Officer may
direct the Regional Hearing Clerk to return the submission,
together with a reference to the applicable regulations. A party
whose materials have been rejected has seven days, from the date
they are sent from the Regional Hearing Clerk, to correct the
materials in conformance with this subpart and resubmit them,
unless the Judicial Officer, Administrator, or Presiding Officer
authorizes on the basis of good cause, longer time.
(d) The filing of a submission shall not mean or imply that the
submission, in fact, meets all applicable requirements, or that the
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submission contains reasonable grounds for the action requested, or
that the action requested is in accordance with law.
(e) An original and one copy of all written submissions relating
to a review proceeding submitted after notice of the granting of a
petition for review is published pursuant to § 72.99, shall be
filed with the Regional Hearing Clerk. However, upon request of
the Presiding Officer, the copy shall be served instead upon the
Presiding Officer.
(f) The party filing any submission with the Regional Hearing
Clerk shall also serve a copy of the submission upon the designated
representative of any unit involved in the initial permitting
decision and upon each party of record to a proceeding under this
subpart.
(g) Every submission filed with the Regional Hearing Clerk shall
be accompanied by a certificate of service citing the date, place,
time, and manner of service on each party of record to the
proceeding and the names of the persons served.
(h) The Regional Hearing Clerk shall maintain and furnish, to any
person upon request, a list containing the name, service address,
telephone and facsimile numbers of each party of record to a
proceeding under this subpart and their attorneys or duly
authorized representatives.
(1) Affidavits shall be made on personal knowledge and belief,
shall set forth only those facts that would be admissible into
evidence under § 72.94 of this part, and shall show affirmatively
that the affiant is competent to testify to the matters stated
therein.
§ 72.92 Ex Parte Communications.
(a) (1) No interested person outside the Agency or member of the
Agency trial staff shall make or knowingly cause to be made to any
member of the decisional body an ex parte communication on the
merits of a proceeding under this subpart.
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(2) No member of the decisional body shall make or knowingly
cause to be made to any interested person outside the Agency or to
any member of the Agency trial staff, an ex parte communication on
the merits of any proceeding under this subpart.
(3) A member of the decisional body who receives or who makes or
who knowingly causes to be made an ex parte communication
prohibited by this subsection shall file with the Regional Hearing
Clerk for inclusion in the record of the proceeding under this
subpart all written ex parte communications or a memoranda stating
the substance of any oral communication together with all written
responses and memoranda stating the substance of all oral
responses.
(b) Whenever any member of the decisional body receives an
parte communication made or knowingly caused to be made by a party
or representative of a party to a proceeding under this subpart,
the person presiding over the proceedings then in progress may, to
the extent consistent with justice, require the party to show good
cause why its claim or interest in the proceedings should not be
dismissed, denied, disregarded, or otherwise adversely affected on
account of these violations.
(c) The prohibitions of this section shall begin to apply upon
issuance by the Administrator of the notice of the granting of a
petition under § 72.98. This prohibition terminates at the date of
final Agency action.
§ 72.93 Stays of Contested Acid Rain Permits.
(a) A contested initial permitting decision may be stayed, in
whole or in part, by the Administrator upon request or sponte
only if necessary to prevent irreparable injury [ Necessary to
discourage unneeded stays] pending final agency action; provided
that the following permit conditions shall in no event be stayed
due to any permit appeal and shall be fully effective and
enforceable:
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(1) The requirement that an affected unit hold sufficient
allowances to cover its annual sulfur dioxide emissions;
(2) The allowance allocation for any year during which the
evidentiary hearing is pending or is being conducted;
(3) Standard permit conditions as specified in Appendix D of this
part applicable to all designated representatives of affected units
under the Acid Rain Program;
(4) The emissions monitoring requirements applicable to the
affected source pursuant to Part 75; and
(5) Uncontested provisions of the initial permitting decision.
(b) The Administrator shall specify which provisions of the
initial permitting decision shall be stayed.
S 72.94 Limitation on Submitting New Evidence and Raising New
Issues.
(a) No evidence shall be submitted or issue raised in an appeal
by any party with regard to any challenges under this subpart that
was not submitted or raised prior to the close of the public
comment period on the proposed permit addressed in the initial
permitting decision, absent a showing of good cause explaining the
party’s failure to make such submission or raise such issue. Good
cause shall include any instance where the party seeking to submit
new evidence or raise a new issue shows that the evidence or issue
could not have reasonably been ascertained, or submitted, or
raised, or that the materiality of the new evidence or issue could
not have reasonably been anticipated, prior to the close of the
public comment period.
(b) No evidence shall be submitted on questions of policy except
to the extent required to disclose the factual basis for permit
requirements [ D.A. 5-22—91: Is this exception necessary? Such
policy could be addressed in briefs] or on questions of law, or on
matters not subject to challenge in the evidentiary hearing. [ This
will greatly reduce the amount of unnecessary testimony; consistent
with limits on cross—examination in 72.102(b)(i.O).]
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§ 72.95 Intervenors.
(a) Any person meeting the criteria under § 72.XX may submit a
motion for leave to be admitted as a party intervenor within 15
days after the notice is given under § 72.99 that the petition for
review has been granted or after notice is given under § 72.108(c)
that a proposed decision or denial of petition for a hearing will
be reviewed. A motion for leave to intervene under this section
shall set forth the grounds for the proposed intervention.
(b) The Presiding Officer shall grant a motion to intervene only
upon an express finding that:
(1) Extraordinary circumstances justify granting the motion:
(1) The motion to intervene raises pertinent matters; and
(ii) The intervenor has demonstrated a substantial interest in
the outcome of the pending proceeding.
(2) The intervenor has consented to be bound by:
(i) Prior written agreements and stipulations by and between the
existing parties; and
(ii) All orders previously entered in the proceedings.
(3) Intervention would promote the interests of justice and will
not cause undue delay or prejudice to the rights of the existing
parties.
§ 72.96 Consolidation and Severance of Proceedings.
(a) The Administrator or Presiding Officer has the discretion to
consolidate, in whole or in part, two or more proceedings under
this subpart whenever it appears that a joint proceeding on any or
all of the matters at issue in the proceedings would be in the
interest of justice, would expedite or simplify consideration of
the issues, and would not prejudice any party of record.
Consolidation of proceedings under this paragraph shall not affect
the right of any party to raise issues that might have been raised
had there been no consolidation.
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(b) The Administrator or Presiding Officer has the discretion to
sever issues or parties from a proceeding under this subpart
whenever it appears that separate proceedings would be in the
interest of justice, would expedite or simplify consideration of
the issues, and would not prejudice any party of record.
§ 72.97 Petition for Review and Request for Evidentiary Hearing.
(a) The following persons may petition for review of an initial
permitting decision, and may include in the petition a request for
evidentiary hearing:
(1) The designated representative for the affected source;
(2) Any person who submitted comments during the public comment
period in accordance with § 72.76 and 72.77 on the proposed permit
addressed in the initial permitting decision;
(3) Any person who testified at the public hearing held in
accordance with § 72.78 on the proposed permit; or
(4) Any other person who shows good cause for failing to submit
comments or testimony during the public comment period in
accordance with § 72.76.
(b) Within 60 days following an initial permitting decision by
the Administrator under this part, any person meeting the criteria
under subsection (a) may file a petition with the Administrator for
review, which may include a request for evidentiary hearing, to
resolve any disputed issue of fact material to the initial
permitting decision. If such a petition is filed by a person other
than the designated representative for the affected source, the
person shall simultaneously serve a copy of the petition on said
designated representative.
(C) Such petition shall state with specificity:
(1) Each material factual, and legal issue alleged to be in
dispute and any such factual issue requiring an evidentiary
hearing;
(2) A clear and concise explanation why the factual and legal
issues are material;
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(3) The hearing time estimated to be necessary for the
adjudication;
(4) The name, mailing address, telephone and facsimile number of
the person filing the petition;
(5) A clear and concise statement of the nature and scope of the
interest of the petitioner;
(6) The names and addresses of all persons whom the petitioner
will represent at the hearing;
(D.A. 5-22—91: can anyone really agree to (7)?]
(7) A certified statement by the petitioner that, upon the motion
of any party granted by the Presiding Officer, or upon order of the
Presiding Officer sua sponte , and without cost or expense to any
other party, any of the following persons shall be available to
appear and testify:
(i) The petitioner;
(ii) Any person represented by the petitioner; and
(iii) Any officer, director, employee, consultant, or agent of
the petitioner.
(8) Specific references to the contested portions of the initial
permitting decision;
(9) Any revised or alternative permit provisions, including
denial of the permit, sought by the petitioner as necessary to
implement the requirements, purposes, or policies of Title IV; and
(10) Identification of any contested permit provisions that the
petitioner believes should be stayed pending resolution of the
petition.
(d) In no event shall a petition for a hearing under this section
be filed with regard to any standard permit provision as specified
in Appendix D.
§ 72.98 Decision on Petition for Review.
(a) The Administrator shall act on any petition for review
(including any request for evidentiary hearing) under this part
within 30 days of the filing of the petition. If the Administrator
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fails to act on the petition within 30 days of filing, that
petition and request shall be deemed to be granted.
(b) The hearings on all petitions that are granted with regard to
a particular initial permitting decision shall be consolidated and
shall commence no later than six months following the granting of
the request.
(C) The Administrator may grant a request for evidentiary hearing
only concerning disputed issues of fact material to contested
portions of the initial permitting decision.
(d) If a petition is denied in whole or in part, the
Administrator shall briefly specify in writing the reasons for the
denial. The denial shall be subject to review under § 72.108.
(e) If the Administrator grants a petition, in whole or in part,
the Administrator shall identify the portions of the initial
permitting decision which have been contested by the petitioner and
with regard to which any evidentiary hearing has been granted.
Portions of the initial permitting decision that are not contested
or for which the Administrator has denied the petition for review
shall not be considered at the evidentiary hearing.
(f) Upon granting a petition for review, the Administrator shall
designate the Agency trial staff and the members of the decisional
body.
§ 72.99 Notice of the Grant of Petition for Review.
Notice that a petition for review (including any request for
evidentiary hearing) on a Acid Rain permit action is granted shall
be published in the Federal Register. In addition, a copy of the
notice shall be mailed to all persons who commented on the proposed
permit during the public comment period, at least 60 days prior to
the hearing.
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§ 72.100 Assignment of Administrative Law Judge.
(a) No later than 7 days after notice is given under § 72.96 that
a petition for an evidentiary hearing is granted, the Administrator
shall refer the proceeding to the Chief Administrative Law Judge.
(b) Within 7 days after a proceeding under this subpart is
referred to the Chief Administrative Law Judge by the Administrator
under paragraph (a), the Chief Administrative Law Judge shall
assign an Administrative Law Judge to serve as Presiding Officer
for the hearing.
§ 72.101 Conferences.
(a) The Presiding Officer, on request or sua sponte may direct
the parties to appear at a specified time and place for one or more
conferences.
(b) The following matters may be considered in the conferences:
(1) Simplification, clarification, amplification, or limitation
of the issues.
(2) Admission and stipulation of facts and of the genuineness of
documents.
(3) Objections to the introduction into evidence at the hearing
of any written testimony or other submissions proposed by a party;
provided that at any time before the end of the hearing, any party
may make, and the Presiding Officer shall consider and rule upon,
a motion to strike testimony or other evidence other than the
administrative record on the grounds of relevance, competency, or
materiality.
(4) Taking official notice of any matters.
(5) Scheduling by the Presiding Officer of any of the following
as may be necessary and proper:
(i) The submission by each party of record of a narrative
statement of position on each factual issue in controversy;
(ii) The submission of written testimony and other evidence in
support of those statements; or
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(iii) Requests by any party for the production of additional
documentation, data, or other information material to the disputed
facts to be addressed at the hearing.
(6) Grouping of parties with substantially similar interests to
eliminate redundant evidence, motions, objections, and briefs;
(7) Such other matters that may expedite the hearing or aid in
the disposition of matters in dispute.
(c) At a prehearing conference or at such other time set by the
Presiding Officer:
(1) Each party shall make available to all other parties of
record the names of any witnesses it expects to call. At the
request of the Presiding Officer, the party shall include a brief
narrative summary of any witness’s expected testimony;
(2) The administrative record and copies of any written
testimony, documents, papers, exhibits, or materials which a party
expects to introduce into evidence shall be marked for
identification as ordered by the Presiding Officer.
(d) Expected witnesses, testimony, and other evidence may be
changed at any time before the end of a hearing upon order of the
Presiding Officer for good cause shown.
(f) The Presiding Officer shall issue a written order (which may
be in the form of a transcript) reciting the actions taken at each
conference and setting forth the schedule for any hearing. The
order shall include a written statement of the areas of factual and
legal agreement and disagreement and the methods and procedures to
be used in developing the evidence. This order shall control the
subsequent course of the proceeding unless modified by the
Presiding Officer for good cause shown.
§ 72.102 Hearing Procedure.
(a) (1) The unit’s designated representative always bears the
burden of persuading the Agency that a permit under this part
should be issued and not denied. This burden does not shift.
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(2) The petitioner shall have the burden of going forward to show
that a finding of fact of conclusion of law underlining the initial
permitting decision is clearly erroneous and that an exercise of
discretion or policy determination underlying the initial
permitting decision is arbitrary and capricious.
(b) The Presiding Officer shall conduct a fair and impartial
hearing on the record, take action to avoid unnecessary delay in
the disposition of the proceedings, and maintain order. For these
purposes, the Presiding Officer may:
(1) Hold conferences to consider any matters that may facilitate
the expeditious disposition of the hearing;
(2) Administer oaths and affirmations;
(3) Regulate the course of the hearings and govern the conduct of
participants;
(4) Examine witnesses;
(5) Identify and refer issues for interlocutory decision under §
72. 107;
(6) Rule on, admit, exclude or limit evidence;
(7) Establish the time for filing motions, testimony, and other
written evidence, briefs, and other submissions;
(8) Rule on motions and other pending procedural matters,
including but not limited to motions for summary disposition in
accordance with § 72.103;
(9) Order that the hearing be conducted in stages whenever the
number of parties is large or the issues are numerous and complex;
(10) Allow such examination and cross-examination of witnesses as
may be required for a full and true disclosure of the facts. No
cross-examination shall be allowed on questions of policy except to
the extent required to disclose the factual basis for permit
requirements, or on questions of law, or regarding matters that are
not subject to challenge in the evidentiary hearing. In deciding
whether or not to allow cross-examination, the Presiding Officer
shall consider the likelihood of clarifying or resolving a disputed
issue or material fact compared to other available methods. The
party seeking the cross-examination has the burden of demonstrating
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that this standard has been met; and
(11) Take any other action not inconsistent with the provisions
of this subpart for the maintenance of order at the hearing and for
the expeditious, fair and impartial conduct of the proceeding;
(C) All direct and rebuttal evidence at an evidentiary hearing
shall be submitted in written form, unless, upon motion and good
cause shown, the Presiding Officer determines that oral
presentation of the evidence on any particular fact will materially
assist in the efficient identification and clarification of the
issues. Written testimony shall be prepared in narrative form.
[ What does “narrative” mean here?]
(d) (1) Evidence may be received at the hearing even though
inadmissible under the Federal Rules of Evidence, -U.S.C.-. The
weight to be given evidence shall be determined by its reliability
and probative value.
(2) The administrative record for the permit shall be admitted
and received in evidence. Upon motion by any party the Presiding
Officer may direct that a witness be provided to sponsor a portion
or portions of the administrative record. The Presiding Officer,
upon finding that the standards (of evidence) in § 72.XX have been
met [ D.A. 5—22—91: Is this necessary and to what does it refer?],
shall direct the appropriate party to produce the witness for
direct or cross-examination. If a sponsoring witness cannot be
provided, the Presiding Officer may reduce the weight accorded to
the appropriate portion of the record.
(3) Whenever any evidence or testimony is excluded by the
Presiding Officer as inadmissible, all such evidence shall remain
a part of the record as an offer of proof. The party seeking the
admission of oral testimony may make an offer of proof by means of
a brief statement on the record describing the testimony excluded.
(4) When two or more parties have substantially similar interests
and positions, the Presiding Officer may limit the number of
attorneys or other party representatives who will be permitted to
cross-examine and to make and argue motions and objections on
behalf of those parties.
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(5) Rulings of the Presiding Officer on the admissibility of
evidence or testimony, the propriety of cross-examination, and
other procedural matters shall appear in the record of the hearing,
and shall control further proceedings, unless reversed as a result
of an interlocutory appeal taken under § 72.107.
(6) All objections shall be made promptly or be deemed waived.
Parties shall be presumed to have taken exception to an adverse
ruling. No objection shall be deemed waived by further
participation in the hearing.
§ 72.103 Motions.
(a) Any party may file a motion with the Presiding Officer on any
matter relating to the proceeding. All motions shall be in writing
and served as provided in this section except those made on the
record during an oral hearing before the Presiding Officer.
(b) Except as provided at (c), within 10 days after service of
any written motion, any party may file a response to the motion.
The time for response may be shortened to no less than one day or
extended by up to 10 days by the Presiding Officer for good cause
shown.
(c) Any party to an evidentiary hearing may make a motion for a
summary disposition in its favor on any factual issue on the basis
that there is no genuine issue of material fact. When a motion for
summary disposition is made and supported, any party opposing the
motion may not rest upon mere allegations or denials, but must
show, by affidavit or by other materials subject to consideration
by the Presiding Officer, that there is a genuine issue of material
fact.
(d) The Presiding Officer may set a motion for oral argument and
call for the submission of briefs or memoranda of law. The
Presiding Officer shall rule on the motion not more than 30 days
after the date responses to the motion are filed under subparagraph
(b) of this section.
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(e) If all factual issues are decided by summary disposition
prior to the hearing, no hearing will be held and the Presiding
Officer shall issue an initial decision under § 72.106. If a
summary determination is denied or if partial summary determination
is granted, the Presiding Officer shall issue a memorandum opinion
and order, interlocutory in character, and the hearing shall
proceed on the remaining issues.
(f) Should it appear from the affidavits of a party opposing a
motion for summary disposition that the party cannot, for reasons
stated, present by affidavit or otherwise facts essential to
justify his or her opposition to the motion, the Presiding Officer
may deny the motion or order a continuance to allow additional
affidavits or other information to be obtained by the opposing
party.
§ 72.104 Record of Appeal Proceeding.
(a) All orders issued by the Presiding Officer, transcripts of
oral hearings or arguments, written statements of position, written
direct and rebuttal testimony, and any other written material of
any kind submitted in the proceeding shall be part of the record
and shall be available to the public, in the office of the Regional
Hearing Clerk, as soon as it is received in that office.
(b) Oral hearings and arguments shall be either stenographically
reported, or tape or video recorded, and thereupon transcribed.
After the hearing, the reporter shall certify and file with the
Hearing Clerk:
(1) The original of the transcript, and
(2) The exhibits received or offered into evidence at the
hearing.
(c) The Regional Hearing Clerk shall promptly notify each of the
parties of the filing of the certified transcript of the
proceedings. Any party who desires a copy of the transcript may
obtain a copy from the Regional Hearing Clerk upon payment of
costs.
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(d) The Presiding Officer shall allow witnesses, parties and
their counsel an opportunity to submit written proposed corrections
of the transcript necessary to remove errors made in the
transcribing. No more than 7 days shall be allowed for submitting
such corrections from the day a complete transcript of the hearing
becomes available. Such corrections shall be incorporated into the
certified transcript along with any objections made to proposed
corrections filed within 7 days of the submission of the
corrections.
§ 72.105 Proposed Findings of Fact and Conclusions of Law and
Supporting; Brief.
Within 60 days after issuance of the notice under § 72.99 of this
part or, in the event an oral argument or evidentiary is held,
within 45 days after the certified transcript is filed, any party
may file with the Regional Hearing Clerk proposed findings of fact
and conclusions of law and a brief in support thereof. Briefs
shall contain appropriate references to the record. A copy of
these findings and conclusions and brief shall be served upon all
other parties of record and the Presiding Officer. The Presiding
Officer, for good cause shown, may extend the time for filing the
proposed findings and conclusions and/or the brief. The Presiding
Officer may allow reply briefs.
§ 72.106 Decisions.
(a) The Presiding Officer shall review and evaluate the record,
including the proposed findings and conclusions and any briefs
filed by the parties, and shall issue and file a proposed decision
with the Regional Hearing Clerk. The Regional Hearing Clerk shall
immediately serve copies of the proposed decision upon all parties
of record and upon the Administrator.
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(b) The proposed decision of the Presiding Officer shall
automatically become the final Agency decision 30 days after its
service unless within that time:
(1) A party files objections with the Administrator pursuant to
§ 72.108(b); or
(2) The Administrator sua sponte files a notice that he or she
will review the decision pursuant to § 72.108(c).
§ 72.107 Interlocutory Appeal.
(a) Except as provided in this section, appeals to the
Administrator may be taken only under § 72.108. Appeals from
orders or rulings may be taken under this section only if the
Presiding Officer certifies those orders or rulings to the
Administrator for interlocutory appeal on the record. Requests to
the Presiding Officer for certification of an interlocutory appeal
must be filed in writing within 10 days of service of notice of the
order, or ruling and shall state briefly the grounds relied on.
(b) The Presiding Officer may certify an order or ruling for
interlocutory appeal to the Administrator if:
(1) The order or ruling involves an important question on which
there is substantial ground for difference of opinion, and
(2) Either: (i) An immediate appeal of the order or ruling will
materially advance the ultimate completion of the proceeding; or
(ii) A review after the final order is issued will be inadequate
or ineffective.
(C) If the Administrator decides that certification was
improperly granted, he or she shall decline to hear the appeal.
The Administrator shall accept or decline all interlocutory appeals
within 30 days of their submission. If the Administrator takes no
action within that time, the appeal shall be automatically
dismissed without prejudice.
(d) When the Presiding Officer declines to certify an order or
ruling to the Administrator for an interlocutory appeal, that
decision may be reviewed by the Administrator only upon appeal from
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the initial decision of the Presiding Officer, except when the
Administrator determines, upon motion of a party and in exceptional
circumstances, that to delay review would not be in the public
interest. Such motion shall be made within 5 days after receipt of
notification that the Presiding Officer has refused to certify an
order or ruling for interlocutory appeal to the Administrator.
(e) In exceptional circumstances in order to prevent irreparable
injury, the Presiding Officer may stay the proceeding pending a
decision by the Administrator upon an order or ruling certified by
the Presiding Officer for interlocutory appeal, or upon the denial
of such certification by the Presiding Officer.
(f) The failure of a party to request an interlocutory appeal
shall not prevent taking exception to an order or ruling in an
appeal under § 72.108.
§ 72.108 Appeal to the Administrator.
(a) (1) Within 30 days following a proposed decision, or a denial
in whole or in part of a petition for review, any party of record
may appeal any matter set forth in the proposed decision or denial,
or any adverse order or ruling to which the party objected during
the appeal proceeding by filing objections with the Administrator.
The petition must show that the proposed decision, denial of a
petition for review hearing, or order or ruling is based on:
(i) A finding of fact or conclusion of law which is clearly
erroneous; or
(ii) A policy determination or exercise of discretion that is
arbitrary and capricious.
(b) Within 30 days of a proposed decision, the Administrator may
issue, sua sponte , a notice of intent to review such decision. The
Administrator shall serve such notice upon all parties of record.
The Administrator may provide an opportunity for parties to file
briefs on the matters to be reviewed.
(C) Within a reasonable time following the filing of the petition
for review under this section, the Administrator shall issue an
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order either granting or denying the petition for review in whole
or in part. The Administrator may provide an opportunity for
parties to file briefs.
(d) If a party timely files objections or if the Administrator,
sua sponte , orders review, then final Agency action occurs as
follows:
(1) If the Administrator denies review or affirms the proposed
decision without modification, the proposed order, supplemented by
the denial or affirmance, becomes the final Agency action.
(2) If the Administrator issues a decision modifying the proposed
order but without remanding the proceedings, the Administrator’s
decision is the final Agency action.
(3) If the Administrator issues a decision remanding the
proceeding, then final Agency action occurs upon completion of the
remanded proceeding, including any appeals to the Administrator of
the remanded proceeding.
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