[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: 40CFR179.90]

[Page 293]
 
                   TITLE 40--PROTECTION OF ENVIRONMENT
 
         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
 
PART 179--FORMAL EVIDENTIARY PUBLIC HEARING--Table of Contents
 
                      Subpart E--Hearing Procedures
 
Sec. 179.90  Summary decisions.

    (a) After the hearing commences, a party may file a written motion, 
with or without supporting affidavits or brief, for a summary decision 
on any issue in the hearing. Any other party may, within 10 days after 
service of the motion, which time may be extended for an additional 10 
days for good cause shown, serve opposing affidavits or brief or 
countermove for summary decision. The presiding officer may set the 
matter for argument and call for the submission of briefs if not 
submitted by the parties.
    (b) The presiding officer will grant the motion if the objections, 
requests for hearing, other pleadings, affidavits, and other material 
filed in connection with the hearing, or matters officially noticed, 
show that there is no genuine disagreement as to any material fact 
bearing on the issue and that a party is entitled to summary decision.
    (c) Affidavits should set forth facts that would be admissible in 
evidence and show affirmatively that the affiant is competent to testify 
to the matters stated. When a properly supported motion for summary 
decision is made, a party opposing the motion may not rest upon mere 
allegations or denials or general descriptions of positions and 
contentions; affidavits or other responses must demonstrate specifically 
that there is a genuine issue of material fact for the hearing.
    (d) Should it appear from the affidavits of a party opposing the 
motion that for sound reasons stated, facts essential to justify the 
opposition cannot be presented by affidavit, the presiding officer may 
deny the motion for summary decision, order a continuance to permit 
affidavits or additional evidence to be obtained, or issue other just 
order.
    (e) If a summary decision is not rendered upon all issues or for all 
the relief asked, and evidentiary facts need to be developed, the 
presiding officer will issue an order specifying the facts that appear 
without substantial controversy and directing further evidentiary 
proceedings. The facts so specified will be deemed established.
    (f) A party may obtain interlocutory review by the Administrator of 
a summary decision of the presiding officer.