[Code of Federal Regulations]
[Title 40, Volume 21]
[Revised as of July 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 40CFR164.121]

[Page 180-181]
 
                   TITLE 40--PROTECTION OF ENVIRONMENT
 
         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
 
       Subpart C--General Rules of Practice for Expedited Hearings
 
Sec. 164.121  Expedited hearing.

    (a) Request. (1) An expedited hearing shall be held whenever the 
Administrator has received from the registrant a timely request for such 
hearing in response to the Administrator's notice of intention to 
suspend.
    (2) A request for an expedited hearing is timely if made in writing 
or by telegram and filed with the office of the hearing clerk within 5 
days of the registrant's receipt of the notice of intention to suspend.
    (3) At the time of filing a request for an expedited hearing, the 
registrant shall also file a document setting forth objections to the 
Administrator's notice of intention to suspend and its findings 
pertaining to the question of imminent hazard. Such objections shall 
conform to the requirements of Sec. 164.21.
    (b) Presiding officer. (1) An expedited hearing shall be conducted 
by a presiding officer appointed by the Administrator, and such officer 
need not be an Administrative Law Judge.
    (2) The presiding officer shall not have the authority to make an 
initial decision on the merits but shall make a recommended decision 
only.
    (c) The issue. The expedited hearing shall address only the issue of 
whether an imminent hazard exists.
    (d) Time of hearing. The hearing shall commence within 5 days after 
the filing of the request with the office of the hearing clerk unless 
the registrant and respondent agree that it shall commence at a later 
time. As soon as possible, the presiding officer shall publish in the 
Federal Register notice of such hearing.
    (e) Intervention. Any person adversely affected by the 
Administrator's notice may move to intervene within 5 days after the 
receipt by the registrant of said notice or at any time prior to the 
conclusion of the presentation of the evidence, upon good cause found, 
except
    (1) Leave to intervene will be granted only if the motion to 
intervene meets the standards of Sec. 164.31 and, in addition, indicates 
that the movant would raise matters or introduce evidence pertinent to 
the issue of imminent hazard which would substantially assist in its 
resolution.
    (2) A movant denied permission to intervene under this section but 
who otherwise meets the standards of Sec. 164.31 and who is adversely 
affected may file proposed findings and conclusions and briefs in 
support thereof pursuant to paragraph (j) of this section. Any person 
filing under this subsection shall be deemed to have been a party to the 
proceeding, for all purposes of its further review.
    (3) When an ``emergency order'' is issued pursuant to Sec. 164.123, 
no person other than the respondent and the registrant shall participate 
in the hearing except that any person adversely affected may file 
proposed findings and conclusions and briefs in support thereof pursuant 
to paragraph (j) of this section. Any person filing under this 
subsection shall be deemed to have been a party to the proceeding for 
all purposes of its further review.
    (f) Appearances and consolidation. The provisions of Secs. 164.30 
and 164.32 apply to an expedited hearing insofar as may be practicable.
    (g) Order of proceeding and burden of proof. At the hearing, the 
proponent of suspension shall have the burden of going forward to 
present an affirmative case for the suspension. However, the ultimate 
burden of persuasion shall rest with the proponent of the registration.
    (h) Evidence. The provisions of Sec. 164.81, where applicable, apply 
to an expedited hearing.
    (i) Transcripts. The presiding officer shall make provision for 
daily transcripts and otherwise comply with the provisions of 
Sec. 164.82.
    (j) Proposed findings or conclusions; recommended decision. (1) 
Within 4 days of the conclusion of the presentation of evidence, the 
parties may propose findings and conclusions to the Presiding Officer. 
Such proposed findings and

[[Page 181]]

conclusions shall be accompanied by a brief with supporting reasons.
    (2) Within 8 days of the conclusion of the presentation of evidence, 
the Presiding Officer shall submit to the parties his proposed 
recommended findings and conclusions and a statement of the reasons on 
which they are based.
    (3) Within 10 days of the conclusion of the presentation of evidence 
the Presiding Officer shall submit to the Environmental Appeals Board 
his recommended findings and conclusions, together with the record.
    (4) Within 12 days of the conclusion of the presentation of evidence 
the parties shall submit to the Environmental Appeals Board their 
objections to the Presiding Officer's recommended findings and 
conclusions and written briefs in support thereof.

[38 FR 19371, July 20, 1973, as amended at 57 FR 5344, Feb. 13, 1992]