Permits Preamble Subpart H - Appeal Procedures for Acid Rain Permits 05/22/1991 ------- DRAFT 05-22-91 PERMITS PREAMBLE THIS DOCUMENT REPRESENTS PREDECISIONAL MATERIAL POSITIONS ARE NOT NECESSARILY THOSE OF EPA OR ANY OFFICE WITHIN THE AGENCY 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 ------- DRAFT 05—22—91 PERMITS PREAMBLE THIS DOCUMENT REPRESENTS PREDECISIONAL MATERIAL POSITIONS ARE NOT NECESSARILY THOSE OF EPA OR ANY OFFICE WITHIN THE AGENCY 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 2 ------- DRAFT 05—22—91 PERMITS PREAMBLE THIS DOCUMENT REPRESENTS PREDECISIONAL MATERIAL POSITIONS ARE NOT NECESSARILY THOSE OF EPA OR ANY OFFICE WITHIN THE AGENCY 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. 3 ------- DRAFT 05—22—91 PERMITS PREAMBLE THIS DOCUMENT REPRESENTS PREDECISIONAL MATERIAL POSITIONS ARE NOT NECESSARILY THOSE OF EPA OR ANY OFFICE WITHIN THE AGENCY 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 4 ------- DRAFT 05—22—91 PERMITS PREAMBLE THIS DOCUMENT REPRESENTS PREDECISIONAL MATERIAL POSITIONS ARE NOT NECESSARILY THOSE OF EPA OR ANY OFFICE WITHIN THE AGENCY 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. 5 ------- DRAFT 05—22—91 PERMITS PREAMBLE THIS DOCUMENT REPRESENTS PREDECISIONAL MATERIAL POSITIONS ARE NOT NECESSARILY THOSE OF EPA OR ANY OFFICE WITHIN THE AGENCY 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 6 ------- DRAFT 05—22—91 PERMITS PREAMBLE THIS DOCUMENT REPRESENTS PREDECISIONAL MATERIAL POSITIONS ARE NOT NECESSARILY THOSE OF EPA OR ANY OFFICE WITHIN THE AGENCY 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.] 7 ------- DRAFT 05—22—91 PERMITS PREAMBLE THIS DOCUMENT REPRESENTS PREDECISIONAL MATERIAL POSITIONS ARE NOT NECESSARILY THOSE OF EPA OR ANY OFFICE WITHIN THE AGENCY (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 8 ------- DRAFT 05—22—91 PERMITS PREAMBLE THIS DOCUMENT REPRESENTS PREDECISIONAL MATERIAL POSITIONS ARE NOT NECESSARILY THOSE OF EPA OR ANY OFFICE WITHIN THE AGENCY 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 9 ------- DRAFT 05—22—9]. PERMITS PREAMBLE THIS DOCUMENT REPRESENTS PREDECISIONAL MATERIAL POSITIONS ARE NOT NECESSARILY THOSE OF EPA OR ANY OFFICE WITHIN THE AGENCY 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 10 ------- DRAFT 05—22—91 PERMITS PREAMBLE THIS DOCUMENT REPRESENTS PREDECISIONAL MATERIAL POSITIONS ARE NOT NECESSARILY THOSE OF EPA OR ANY OFFICE WITHIN THE AGENCY 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, 11 ------- DRAFT 05—22—91 PERMITS PREAMBLE THIS DOCUMENT REPRESENTS PREDECISIONAL MATERIAL POSITIONS ARE NOT NECESSARILY THOSE OF EPA OR ANY OFFICE WITHIN THE AGENCY 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 12 ------- DRAFT 05—22—91 PERMITS PREAMBLE THIS DOCUMENT REPRESENTS PREDECISIONAL MATERIAL POSITIONS ARE NOT NECESSARILY THOSE OF EPA OR ANY OFFICE WITHIN THE AGENCY 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 13 ------- DRAFT 05—22—91 PERMITS PREAMBLE THIS DOCUMENT REPRESENTS PREDECISIONAL, MATERIAL POSITIONS ARE NOT NECESSARILY THOSE OF EPA OR ANY OFFICE WITHIN THE AGENCY 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 14 ------- DRAFT 05—22—91 PERMITS PREAMBLE THIS DOCUMENT REPRESENTS PREDECISIONAL MATERIAL POSITIONS ARE NOT NECESSARILY THOSE OF EPA OR ANY OFFICE WITHIN THE AGENCY 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.] 15 ------- DRAFT 05—22—91 PERMITS PREAMBLE THIS DOCUMENT REPRESENTS PREDECISIONAL MATERIAL POSITIONS ARE NOT NECESSARILY THOSE OF EPA OR ANY OFFICE WITHIN THE AGENCY (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 16 ------- DRAFT 05—22—91 PERMITS PREAMBLE THIS DOCUMENT REPRESENTS PREDECISIONAL MATERIAL POSITIONS ARE NOT NECESSARILY THOSE OF EPA OR ANY OFFICE WITHIN THE AGENCY 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. 17 ------- DRAFT 05—22—91 PERMITS PREAMBLE THIS DOCUMENT REPRESENTS PREDECISIONAL MATERIAL POSITIONS ARE NOT NECESSARILY THOSE OF EPA OR ANY OFFICE WITHIN THE AGENCY 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 18 ------- DRAFT 05—22—91 PERMITS PREAMBLE THIS DOCUMENT REPRESENTS PREDECISIONAL MATERIAL POSITIONS ARE NOT NECESSARILY THOSE OF EPA OR ANY OFFICE WITHIN THE AGENCY 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 19 ------- DRAFT 05—22—91 PERMITS PREAMBLE THIS DOCUMENT REPRESENTS PREDECISIONAL MATERIAL POSITIONS ARE NOT NECESSARILY THOSE OF EPA OR ANY OFFICE WITHIN THE AGENCY 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 20 ------- DRAFT 05—22—91 PERMITS PREAMBLE THIS DOCUMENT REPRESENTS PREDECISIONAL MATERIAL POSITIONS ARE NOT NECESSARILY THOSE OF EPA OR ANY OFFICE WITHIN THE AGENCY 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 21 ------- DRAFT 05—22—91 PERMITS PREAMBLE THIS DOCUMENT REPRESENTS PREDECISIONAL MATERIAL POSITIONS ARE NOT NECESSARILY THOSE OF EPA OR ANY OFFICE WITHIN THE AGENCY 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 22 ------- DRAFT 05—22—91 PERMITS PREAMBLE THIS DOCUMENT REPRESENTS PREDECISIONAL MATERIAL POSITIONS ARE NOT NECESSARILY THOSE OF EPA OR ANY OFFICE WITHIN THE AGENCY 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 23 ------- DRAFT 05—22—91 PERMITS PREAMBLE THIS DOCUMENT REPRESENTS PREDECISIONAL MATERIAL POSITIONS ARE NOT NECESSARILY THOSE OF EPA OR ANY OFFICE WITHIN THE AGENCY 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 24 ------- DRAFT 05—22—91 PERMITS PREAMBLE THIS DOCUMENT REPRESENTS PREDECISIONAL MATERIAL POSITIONS ARE NOT NECESSARILY THOSE OF EPA OR ANY OFFICE WITHIN THE AGENCY 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 25 ------- DRAFT 05—22—9]. PERMITS PREAMBLE THIS DOCUMENT REPRESENTS PREDECISIONAL MATERIAL POSITIONS ARE NOT NECESSARILY THOSE OF EPA OR ANY OFFICE WITHIN THE AGENCY 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. 26 ------- DRAFT 05—22—91 PERMITS PREAMBLE THIS DOCUMENT REPRESENTS PREDECISIONAL MATERIAL POSITIONS ARE NOT NECESSARILY THOSE OF EPA OR ANY OFFICE WITHIN THE AGENCY 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. 27 ------- DRAFT 05—22—91 PERMITS PREAMBLE THIS DOCUMENT REPRESENTS PREDECISIONAL MATERIAL POSITIONS ARE NOT NECESSARILY THOSE OF EPA OR ANY OFFICE WITHIN THE AGENCY 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 28 ------- DRAFT 05—22—91 PERMITS PREAMBLE THIS DOCUMENT REPRESENTS PREDECISIONAL MATERIAL POSITIONS ARE NOT NECESSARILY THOSE OF EPA OR ANY OFFICE WITHIN THE AGENCY — 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 29 ------- DRAFT 05—22—91 PERMITS PREAMBLE THIS DOCUMENT REPRESENTS PREDECISIONAL MATERIAL POSITIONS ARE NOT NECESSARILY THOSE OF EPA OR ANY OFFICE WITHIN THE AGENCY 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 30 ------- DRAFT 05—22—91 PERMITS PREAMBLE THIS DOCUMENT REPRESENTS PREDECISIONAL MATERIAL POSITIONS ARE NOT NECESSARILY THOSE OF EPA OR ANY OFFICE WITHIN THE AGENCY 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 31 ------- DRAFT 05—22—91 PERMITS PREAMBLE THIS DOCUMENT REPRESENTS PREDECISIONAL MATERIAL POSITIONS ARE NOT NECESSARILY THOSE OF EPA OR ANY OFFICE WITHIN THE AGENCY 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 32 ------- DRAFT 05—22—91 PERMITS PREAMBLE THIS DOCUMENT REPRESENTS PREDECISIONAL MATERIAL POSITIONS ARE NOT NECESSARILY THOSE OF EPA OR ANY OFFICE WITHIN THE AGENCY 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 33 ------- DRAFT 05—22—91 PERMITS PREAMBLE THIS DOCUMENT REPRESENTS PREDECISIONAL MATERIAL POSITIONS ARE NOT NECESSARILY THOSE OF EPA OR ANY OFFICE WITHIN THE AGENCY 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. 34 ------- DRAFT 05—22—91 PERMITS PREAMBLE THIS DOCUMENT REPRESENTS PREDECISIONAL MATERIAL POSITIONS ARE NOT NECESSARILY THOSE OF EPA OR ANY OFFICE WITHIN THE AGENCY 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 35 ------- DRAFT 05—22—91 PERMITS PREAMBLE THIS DOCUMENT REPRESENTS PREDECISIONAL MATERIAL POSITIONS ARE NOT NECESSARILY THOSE OF EPA OR ANY OFFICE WITHIN THE AGENCY 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 36 ------- DRAFT 05—22—91 PERMITS PREAMBLE THIS DOCUMENT REPRESENTS PREDECISIONAL MATERIAL POSITIONS ARE NOT NECESSARILY THOSE OF EPA OR ANY OFFICE WITHIN THE AGENCY 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 37 ------- DRAFT 05—22—91 PERMITS PREAMBLE THIS DOCUMENT REPRESENTS PREDECISIONAL MATERIAL POSITIONS ARE NOT NECESSARILY THOSE OF EPA OR ANY OFFICE WITHIN THE AGENCY 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 38 ------- DRAFT 05—22—91 PERMITS PREAMBLE THIS DOCUMENT REPRESENTS PREDECISIONAL MATERIAL POSITIONS ARE NOT NECESSARILY THOSE OF EPA OR ANY OFFICE WITHIN THE AGENCY 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. 39 ------- DRAFT 05—22—91 PERMITS PREAMBLE THIS DOCUMENT REPRESENTS PREDECISIONAL MATERIAL POSITIONS ARE NOT NECESSARILY THOSE OF EPA OR ANY OFFICE WITHIN THE AGENCY 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. 40 ------- DRAFT 05—22—91 PERMITS PREAMBLE THIS DOCUMENT REPRESENTS PREDECISIONAL MATERIAL POSITIONS ARE NOT NECESSARILY THOSE OF EPA OR ANY OFFICE WITHIN THE AGENCY (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 41 ------- DRAFT 05—22—9]. PERMITS PREAMBLE THIS DOCUMENT REPRESENTS PREDECISIONAL MATERIAL POSITIONS ARE NOT NECESSARILY THOSE OF EPA OR ANY OFFICE WITHIN THE AGENCY 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; 42 ------- DRAFT 05—22—91 PERMITS PREAMBLE THIS DOCUMENT REPRESENTS PREDECISIONAL MATERIAL POSITIONS ARE NOT NECESSARILY THOSE OF EPA OR ANY OFFICE WITHIN THE AGENCY 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 43 ------- DRAFT 05—22—91 PERMITS PREAMBLE THIS DOCUMENT REPRESENTS PREDECISIONAL MATERIAL POSITIONS ARE NOT NECESSARILY THOSE OF EPA OR ANY OFFICE WITHIN THE AGENCY 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 44 ------- DRAFT 05—22—91 PERMITS PREAMBLE THIS DOCUMENT REPRESENTS PREDECISIONAL MATERIAL POSITIONS ARE NOT NECESSARILY THOSE OF EPA OR ANY OFFICE WITHIN THE AGENCY 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 45 ------- DRAFT 05—22—91 PERMITS PREAMBLE THIS DOCUMENT REPRESENTS PREDECISIONAL MATERIAL POSITIONS ARE NOT NECESSARILY THOSE OF EPA OR ANY OFFICE WITHIN THE AGENCY 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 46 ------- DRAFT 05—22—91 PERMITS PREAMBLE THIS DOCUMENT REPRESENTS PREDECISIONAL MATERIAL POSITIONS ARE NOT NECESSARILY THOSE OF EPA OR ANY OFFICE WITHIN THE AGENCY 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 47 ------- DRAFT 05—22—91 PERMITS PREAMBLE THIS DOCUMENT REPRESENTS PREDECISIONAL MATERIAL POSITIONS ARE NOT NECESSARILY THOSE OF EPA OR ANY OFFICE WITHIN THE AGENCY 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 48 ------- DRAFT 05-22—91 PERMITS PREAMBLE THIS DOCUMENT REPRESENTS PREDECISIONAL MATERIAL POSITIONS ARE NOT NECESSARILY THOSE OF EPA OR ANY OFFICE WITHIN THE AGENCY 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 49 ------- DRAFT 05—22—91 PERMITS PREAMBLE THIS DOCUMENT REPRESENTS PREDECISIONAL MATERIAL POSITIONS ARE NOT NECESSARILY THOSE OF EPA OR ANY OFFICE WITHIN THE AGENCY 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 50 ------- DRAFT 05—22—91 PERMITS PREAMBLE THIS DOCUMENT REPRESENTS PREDECISIONAL MATERIAL POSITIONS ARE NOT NECESSARILY THOSE OF EPA OR ANY OFFICE WITHIN THE AGENCY 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 51 ------- DRAFT 05—22—91 PERMITS PREAMBLE THIS DOCUMENT REPRESENTS PREDECISIONAL MATERIAL POSITIONS ARE NOT NECESSARILY THOSE OF EPA OR ANY OFFICE WITHIN THE AGENCY 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 52 ------- DRAFT 05—22—91 PERMITS PREANBLE THIS DOCU1 ENT REPRESENTS PREDECISIONAL MATERIAL POSITIONS ARE NOT NECESSARILY THOSE OF EPA OR ANY OFFICE WITHIN THE AGENCY 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. 53 ------- DRAFT 05—22—91 PERMITS PREAMBLE THIS DOCUMENT REPRESENTS PREDECISIONAL MATERIAL POSITIONS ARE NOT NECESSARILY THOSE OF EPA OR ANY OFFICE WITHIN THE AGENCY 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 54 ------- DRAFT 05—22—91 PERMITS PREAMBLE THIS DOCUMENT REPRESENTS PREDECISIONAL MATERIAL POSITIONS ARE NOT NECESSARILY THOSE OF EPA OR ANY OFFICE WITHIN THE AGENCY 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 55 ------- DRAFT 05—22—91 PERMITS PREANBLE THIS DOCUMENT REPRESENTS PREDECISIONAL MATERIAL POSITIONS ARE NOT NECESSARILY THOSE OF EPA OR ANY OFFICE WITHIN THE AGENCY 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 56 ------- DRAFT 05—22—91 PERMITS PREAMBLE THIS DOCUMENT REPRESENTS PREDECISIONAL MATERIAL POSITIONS ARE NOT NECESSARILY THOSE OF EPA OR ANY OFFICE WITHIN THE AGENCY 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. 57 ------- DRAFT 05—22—91 PERMITS PREAMBLE THIS DOCUMENT REPRESENTS PREDECISIONAL MATERIAL POSITIONS ARE NOT NECESSARILY THOSE OF EPA OR ANY OFFICE WITHIN THE AGENCY 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 58 ------- DRAFT 05—22—91 PERMITS PREAMBLE THIS DOCUMENT REPRESENTS PREDECISIONAL MATERIAL POSITIONS ARE NOT NECESSARILY THOSE OF EPA OR ANY OFFICE WITHIN THE AGENCY 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]. 59 ------- DRAFT 05—22—9]. PERMITS PREAMBLE THIS DOCUMENT REPRESENTS PREDECISIONAL MATERIAL POSITIONS ARE NOT NECESSARILY THOSE OF EPA OR ANY OFFICE WITHIN THE AGENCY 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 60 ------- DRAFT 05—22—91 PERMITS PREAMBLE THIS DOCUMENT REPRESENTS PREDECISIONAL MATERIAL POSITIONS ARE NOT NECESSARILY THOSE OF EPA OR ANY OFFICE WITHIN THE AGENCY 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 61 ------- DRAFT 05—22—91 PERMITS PREAMBLE THIS DOCUMENT REPRESENTS PREDECISIONAL MATERIAL POSITIONS ARE NOT NECESSARILY THOSE OF EPA OR ANY OFFICE WITHIN THE AGENCY 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 62 ------- DRAFT 05—22—9]. PERMITS PREAMBLE THIS DOCUMENT REPRESENTS PREDECISIONAL MATERIAL POSITIONS ARE NOT NECESSARILY THOSE OF EPA OR ANY OFFICE WITHIN THE AGENCY 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 63 ------- DRAFT 05—22—91 PERMITS PREANBLE THIS DOCUMENT REPRESENTS PREDECISIONAL MATERIAL POSITIONS ARE NOT NECESSARILY THOSE OF EPA OR ANY OFFICE WITHIN THE AGENCY 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 64 ------- DRAFT 05—22—91 PERMITS PREAMBLE THIS DOCUMENT REPRESENTS PREDECISIONAL MATERIAL POSITIONS ARE NOT NECESSARILY THOSE OF EPA OR ANY OFFICE WITHIN THE AGENCY 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 65 ------- DRAFT 05—22—91 PERMITS PREAMBLE THIS DOCUMENT REPRESENTS PREDECISIONAL MATERIAL POSITIONS ARE NOT NECESSARILY THOSE OF EPA OR ANY OFFICE WITHIN THE AGENCY 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. 66 ------- DRAFT 05—22—91 PERMITS PREAMBLE THIS DOCUMENT REPRESENTS PREDECISIONAL MATERIAL POSITIONS ARE NOT NECESSARILY THOSE OF EPA OR ANY OFFICE WITHIN THE AGENCY 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 67 ------- DRAFT 05—22—91 PERMITS PREAMBLE THIS DOCUMENT REPRESENTS PREDECISIONAL MATERIAL POSITIONS ARE NOT NECESSARILY THOSE OF EPA OR ANY OFFICE WITHIN THE AGENCY 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. 68 ------- DRAFT 05—22—91 PERMITS PREAMBLE THIS DOCUMENT REPRESENTS PREDECISIONAL MATERIAL POSITIONS ARE NOT NECESSARILY THOSE OF EPA OR ANY OFFICE WITHIN THE AGENCY 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. 69 ------- DRAFT 05—22—91 PERMITS PREAMBLE THIS DOCUMENT REPRESENTS PREDECISIONAL MATERIAL POSITIONS ARE NOT NECESSARILY THOSE OF EPA OR ANY OFFICE WITHIN THE AGENCY 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. 70 ------- 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 1 ------- 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 2 ------- 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. 3 ------- (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: 4 ------- (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).] 5 ------- § 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. 6 ------- (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; 7 ------- (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 8 ------- 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. 9 ------- § 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 10 ------- (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. 11 ------- (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 12 ------- 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. 13 ------- (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. 14 ------- (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. 15 ------- (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. 16 ------- (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 17 ------- 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 18 ------- 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. 19 ------- |