[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: 40CFR123.64]

[Page 267-270]
 
                   TITLE 40--PROTECTION OF ENVIRONMENT
 
         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
 
PART 123--STATE PROGRAM REQUIREMENTS--Table of Contents
 
          Subpart D--Program Approval, Revision, and Withdrawal
 
Sec. 123.64  Procedures for withdrawal of State programs.

    (a) A State with a program approved under this part (or, in the case 
of a sewage sludge management program, 40 CFR part 501) may voluntarily 
transfer program responsibilities required by Federal law to EPA by 
taking the following actions, or in such other manner as may be agreed 
upon with the Administrator.
    (1) The State shall give the Administrator 180 days notice of the 
proposed transfer and shall submit a plan for the orderly transfer of 
all relevant program information not in the possession of EPA (such as 
permits, permit files, compliance files, reports, permit applications) 
which are necessary for EPA to administer the program.
    (2) Within 60 days of receiving the notice and transfer plan, the 
Administrator shall evaluate the State's transfer plan and shall 
identify any additional information needed by the Federal government for 
program administration and/or identify any other deficiencies in the 
plan.
    (3) At least 30 days before the transfer is to occur the 
Administrator shall publish notice of the transfer in the Federal 
Register and in enough of the largest newspapers in the State to provide 
Statewide coverage, and shall mail notice to all permit holders, permit 
applicants, other regulated persons and other interested persons on 
appropriate EPA and State mailing lists.
    (b) The following procedures apply when the Administrator orders the 
commencement of proceedings to determine whether to withdraw approval of 
a State program.
    (1) Order. The Administrator may order the commencement of 
withdrawal proceedings on his or her own initiative or in response to a 
petition from an interested person alleging failure of the State to 
comply with the requirements of this part as set forth in Sec. 123.63 
(or, in the case of a sewage sludge management program, Sec. 501.33 of 
this chapter). The Administrator will respond in writing to any petition 
to commence withdrawal proceedings. He may conduct an informal 
investigation of the allegations in the petition to determine whether 
cause exists to commence proceedings under this paragraph. The 
Administrator's order commencing proceedings under this paragraph will 
fix a time and place for the commencement of the hearing and will 
specify the allegations against the State which are to be considered at 
the hearing. Within 30 days the State must admit or deny these 
allegations in a written answer. The party seeking withdrawal of the 
State's program will have the burden of coming forward with the evidence 
in a hearing under this paragraph.
    (2) Definitions. For purposes of this paragraph the definitions of 
``Act,'' ``Administrative Law Judge,'' ``Hearing Clerk,'' and 
``Presiding Officer'' in 40 CFR 22.03 apply in addition to the 
following:
    (i) Party means the petitioner, the State, the Agency, and any other 
person whose request to participate as a party is granted.
    (ii) Person means the Agency, the State and any individual or 
organization having an interest in the subject matter of the proceeding.
    (iii) Petitioner means any person whose petition for commencement of 
withdrawal proceedings has been granted by the Administrator.
    (3) Procedures. (i) The following provisions of 40 CFR part 22 
(Consolidated Rules of Practice) are applicable to proceedings under 
this paragraph:
    (A) Sec. 22.02--(use of number/gender);
    (B) Sec. 22.04(c)--(authorities of Presiding Officer);
    (C) Sec. 22.06--(filing/service of rulings and orders);

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    (D) Sec. 22.09--(examination of filed documents);
    (E) Sec. 22.19(a), (b) and (c)--(prehearing conference);
    (F) Sec. 22.22--(evidence);
    (G) Sec. 22.23--(objections/offers of proof);
    (H) Sec. 22.25--(filing the transcript); and
    (I) Sec. 22.26--(findings/conclusions).
    (ii) The following provisions are also applicable:
    (A) Computation and extension of time--(1) Computation. In computing 
any period of time prescribed or allowed in these rules of practice, 
except as otherwise provided, the day of the event from which the 
designated period begins to run shall not be included. Saturdays, 
Sundays, and Federal legal holidays shall be included. When a stated 
time expires on a Saturday, Sunday, or legal holiday, the stated time 
period shall be extended to include the next business day.
    (2) Extensions of time. The Administrator, Regional Administrator, 
or Presiding Officer, as appropriate, may grant an extension of time for 
the filing of any pleading, document, or motion (i) upon timely motion 
of a party to the proceeding, for good cause shown, and after 
consideration of prejudice to other parties, or (ii) upon his own 
motion. Such a motion by a party may only be made after notice to all 
other parties, unless the movant can show good cause why serving notice 
is impracticable. The motion shall be filed in advance of the date on 
which the pleading, document or motion is due to be filed, unless the 
failure of a party to make timely motion for extension of time was the 
result of excusable neglect.
    (3) The time for commencement of the hearing shall not be extended 
beyond the date set in the Administrator's order without approval of the 
Administrator.
    (B) Ex parte discussion of proceedings. At no time after the 
issuance of the order commencing proceedings shall the Administrator, 
the Regional Administrator, the Regional Judicial Officer, the Presiding 
Officer, or any other person who is likely to advise these officials in 
the decision on the case, discuss ex parte the merits of the proceeding 
with any interested person outside the Agency, with any Agency staff 
member who performs a prosecutorial or investigative function in such 
proceeding or a factually related proceeding, or with any representative 
of such person. Any ex parte memorandum or other communication addressed 
to the Administrator, the Regional Administrator, the Regional Judicial 
Officer, or the Presiding Officer during the pendency of the proceeding 
and relating to the merits thereof, by or on behalf of any party, shall 
be regarded as argument made in the proceeding and shall be served upon 
all other parties. The other parties shall be given an opportunity to 
reply to such memorandum or communication.
    (C) Intervention--(1) Motion. A motion for leave to intervene in any 
proceeding conducted under these rules of practice must set forth the 
grounds for the proposed intervention, the position and interest of the 
movant and the likely impact that intervention will have on the 
expeditious progress of the proceeding. Any person already a party to 
the proceeding may file an answer to a motion to intervene, making 
specific reference to the factors set forth in the foregoing sentence 
and paragraph (b)(3)(ii)(C)(3) of this section, within ten (10) days 
after service of the motion for leave to intervene.
    (2) However, motions to intervene must be filed within 15 days from 
the date the notice of the Administrator's order is first published.
    (3) Disposition. Leave to intervene may be granted only if the 
movant demonstrates that (i) his presence in the proceeding would not 
unduly prolong or otherwise prejudice that adjudication of the rights of 
the original parties; (ii) the movant will be adversely affected by a 
final order; and (iii) the interests of the movant are not being 
adequately represented by the original parties. The intervenor shall 
become a full party to the proceeding upon the granting of leave to 
intervene.
    (4) Amicus curiae. Persons not parties to the proceeding who wish to 
file briefs may so move. The motion shall identify the interest of the 
applicant and shall state the reasons why the proposed amicus brief is 
desirable. If the motion is granted, the Presiding Officer or 
Administrator shall issue an

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order setting the time for filing such brief. An amicus curiae is 
eligible to participate in any briefing after his motion is granted, and 
shall be served with all briefs, reply briefs, motions, and orders 
relating to issues to be briefed.
    (D) Motions--(1) General. All motions, except those made orally on 
the record during a hearing, shall (i) be in writing; (ii) state the 
grounds therefor with particularity; (iii) set forth the relief or order 
sought; and (iv) be accompanied by any affidavit, certificate, other 
evidence, or legal memorandum relied upon. Such motions shall be served 
as provided by paragraph (b)(4) of this section.
    (2) Response to motions. A party's response to any written motion 
must be filed within ten (10) days after service of such motion, unless 
additional time is allowed for such response. The response shall be 
accompanied by any affidavit, certificate, other evidence, or legal 
memorandum relied upon. If no response is filed within the designated 
period, the parties may be deemed to have waived any objection to the 
granting of the motion. The Presiding Officer, Regional Administrator, 
or Administrator, as appropriate, may set a shorter time for response, 
or make such other orders concerning the disposition of motions as they 
deem appropriate.
    (3) Decision. The Administrator shall rule on all motions filed or 
made after service of the recommended decision upon the parties. The 
Presiding Officer shall rule on all other motions. Oral argument on 
motions will be permitted where the Presiding Officer, Regional 
Administrator, or the Administrator considers it necessary or desirable.
    (4) Record of proceedings. (i) The hearing shall be either 
stenographically reported verbatim or tape recorded, and thereupon 
transcribed by an official reporter designated by the Presiding Officer;
    (ii) All orders issued by the Presiding Officer, transcripts of 
testimony, written statements of position, stipulations, exhibits, 
motions, briefs, and other written material of any kind submitted in the 
hearing shall be a part of the record and shall be available for 
inspection or copying in the Office of the Hearing Clerk, upon payment 
of costs. Inquiries may be made at the Office of the Administrative Law 
Judges, Hearing Clerk, 1200 Pennsylvania Ave., NW., Washington, DC 
20460;
    (iii) Upon notice to all parties the Presiding Officer may authorize 
corrections to the transcript which involves matters of substance;
    (iv) An original and two (2) copies of all written submissions to 
the hearing shall be filed with the Hearing Clerk;
    (v) A copy of each submission shall be served by the person making 
the submission upon the Presiding Officer and each party of record. 
Service under this paragraph shall take place by mail or personal 
delivery;
    (vi) Every submission shall be accompanied by an acknowledgement of 
service by the person served or proof of service in the form of a 
statement of the date, time, and manner of service and the names of the 
persons served, certified by the person who made service, and;
    (vii) The Hearing Clerk shall maintain and furnish to any person 
upon request, a list containing the name, service address, and telephone 
number of all parties and their attorneys or duly authorized 
representatives.
    (5) Participation by a person not a party. A person who is not a 
party may, in the discretion of the Presiding Officer, be permitted to 
make a limited appearance by making oral or written statement of his/her 
position on the issues within such limits and on such conditions as may 
be fixed by the Presiding Officer, but he/she may not otherwise 
participate in the proceeding.
    (6) Rights of parties. (i) All parties to the proceeding may:
    (A) Appear by counsel or other representative in all hearing and 
pre-hearing proceedings;
    (B) Agree to stipulations of facts which shall be made a part of the 
record.
    (7) Recommended decision. (i) Within 30 days after the filing of 
proposed findings and conclusions, and reply briefs, the Presiding 
Officer shall evaluate the record before him/her, the proposed findings 
and conclusions and any briefs filed by the parties and shall prepare a 
recommended decision, and shall certify the entire record, including the

[[Page 270]]

recommended decision, to the Administrator.
    (ii) Copies of the recommended decision shall be served upon all 
parties.
    (iii) Within 20 days after the certification and filing of the 
record and recommended decision, all parties may file with the 
Administrator exceptions to the recommended decision and a supporting 
brief.
    (8) Decision by Administrator. (i) Within 60 days after the 
certification of the record and filing of the Presiding Officer's 
recommeded decision, the Administrator shall review the record before 
him and issue his own decision.
    (ii) If the Administrator concludes that the State has administered 
the program in conformity with the appropriate Act and regulations his 
decision shall constitute ``final agency action'' within the meaning of 
5 U.S.C. 704.
    (iii) If the Administrator concludes that the State has not 
administered the program in conformity with the appropriate Act and 
regulations he shall list the deficiencies in the program and provide 
the State a reasonable time, not to exceed 90 days, to take such 
appropriate corrective action as the Administrator determines necessary.
    (iv) Within the time prescribed by the Administrator the State shall 
take such appropriate corrective action as required by the Administrator 
and shall file with the Administrator and all parties a statement 
certified by the State Director that such appropriate corrective action 
has been taken.
    (v) The Administrator may require a further showing in addition to 
the certified statement that corrective action has been taken.
    (vi) If the State fails to take such appropriate corrective action 
and file a certified statement thereof within the time prescribed by the 
Administrator, the Administrator shall issue a supplementary order 
withdrawing approval of the State program. If the State takes such 
appropriate corrective action, the Administrator shall issue a 
supplementary order stating that approval of authority is not withdrawn.
    (vii) The Administrator's supplementary order shall constitute final 
Agency action within the meaning of 5 U.S.C. 704.
    (viii) Withdrawal of authorization under this section and the 
appropriate Act does not relieve any person from complying with the 
requirements of State law, nor does it affect the validity of actions by 
the State prior to withdrawal.

[48 FR 14178, Apr. 1, 1983; 50 FR 6941, Feb. 19, 1985, as amended at 57 
FR 5335, Feb. 13, 1992; 63 FR 45123, Aug. 24, 1998]