[Code of Federal Regulations]
[Title 40, Volume 19]
[Revised as of July 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 40CFR104.13]

[Page 9-10]
 
                   TITLE 40--PROTECTION OF ENVIRONMENT
 
         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
 
PART 104--PUBLIC HEARINGS ON EFFLUENT STANDARDS FOR TOXIC POLLUTANTS--
Table of Contents
 
Sec. 104.13  Interlocutory and post-hearing review of rulings of the 
Presiding Officer; motions.

    (a) The Presiding Officer may certify a ruling for interlocutory 
review by the Administrator where a party so requests and the Presiding 
Officer concludes that (1) the ruling from which review is sought 
involves an important question as to which there is substantial ground 
for difference of opinion, and (2) either (i) a subsequent reversal of 
his ruling would be likely to result in substantial delay or expense if 
left to the conclusion of the proceedings, or (ii) a ruling on the 
question by the Administrator would be of material assistance in 
expediting the hearing. The certificate shall be in writing and shall 
specify the material relevant to the ruling certified. If the 
Administrator determines that interlocutory review is not warranted, he 
may decline to consider the ruling which has been certified.
    (b) Where the Presiding Officer declines to certify a ruling the 
party who had requested certification may apply to the Administrator for 
interlocutory review, or the Administrator may on his own motion direct 
that any matter be submitted to him for review, subject to the standards 
for review set forth in paragraph (a) of this section. An application 
for review shall be in writing and shall briefly state the grounds 
relied on. If the Administrator takes no action with respect to such 
application for interlocutory review within 15 days of its filing, such 
application shall be deemed to have been denied.
    (c) Unless otherwise ordered by the Presiding Officer or the 
Administrator, the hearing shall continue pending consideration by the 
Administrator of any ruling or request for interlocutory review.
    (d) Unless otherwise ordered by the Presiding Officer or the 
Administrator, briefs in response to any application for interlocutory 
review may be filed by any party within five days of the filing of the 
application for review.
    (e) Failure to request or obtain interlocutory review does not waive 
the rights of any party to complain of a ruling following completion of 
the hearing. Within five days following the close of a hearing under 
this part, any party may apply to the Administrator for post-hearing 
review of any procedural ruling, or any ruling made by the Presiding 
Officer concerning the admission or exclusion of evidence to which 
timely objection was made. Within seven days following the filing of any 
such application any other party may file a brief in response thereto.
    (f) If the Administrator on review under paragraph (e) of this 
section determines that evidence was improperly excluded, he may order 
its admission

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without remand for further proceedings, or may remand with such 
instructions as he deems appropriate concerning cross-examination, or 
opportunity for any party to submit further evidence, with respect to 
such evidence as he directs should be admitted. In making his 
determination whether to remand, the Administrator shall consider 
whether the statutory time restraints permit a remand, and whether it 
would be constructive to allow cross-examination or further evidence 
with respect to the newly admitted evidence. If evidence is admitted 
without cross-examination, the Administrator shall consider the lack of 
opportunity for cross-examination in determining the weight to be given 
such evidence.
    (g) Motions shall be brief, in writing, and may be filed at any time 
following the publication of the proposed effluent standards, unless 
otherwise ordered by the Presiding Officer or the Administrator. Unless 
otherwise ordered or provided in these rules, responses to motions may 
be filed within seven days of the actual filing of the motion with the 
hearing clerk.