[Code of Federal Regulations]
[Title 40, Volume 22]
[Revised as of July 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 40CFR233.53]

[Page 300-304]
 
                   TITLE 40--PROTECTION OF ENVIRONMENT
 
         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
 
PART 233--404 STATE PROGRAM REGULATIONS--Table of Contents
 
                      Subpart F--Federal Oversight
 
Sec. 233.53  Withdrawal of program approval.

    (a) A State with a program approved under this part may voluntarily 
transfer program responsibilities required by Federal law to the 
Secretary 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 and the Secretary 180 
days notice of the proposed transfer. The State shall also submit a plan 
for the orderly transfer of all relevant program information not in the 
possession of the Secretary (such as permits, permit files, reports, 
permit applications) which are necessary for the Secretary to administer 
the program.
    (2) Within 60 days of receiving the notice and transfer plan, the 
Administrator and the Secretary shall evaluate the State's transfer plan 
and shall identify for the State any additional information needed by 
the Federal government for program administration.
    (3) At least 30 days before the transfer is to occur the 
Administrator shall publish notice of transfer in the Federal Register 
and in a sufficient number 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, Corps and State mailing lists.
    (b) The Administrator may withdraw program approval when a State 
program no longer complies with the requirements of this part, and the 
State fails to take corrective action. Such circumstances include the 
following:
    (1) When the State's legal authority no longer meets the 
requirements of this part, including:
    (i) Failure of the State to promulgate or enact new authorities when 
necessary; or
    (ii) Action by a State legislature or court striking down or 
limiting State authorities.
    (2) When the operation of the State program fails to comply with the 
requirements of this part, including:
    (i) Failure to exercise control over activities required to be 
regulated under this part, including failure to issue permits;
    (ii) Issuance of permits which do not conform to the requirements of 
this part; or
    (iii) Failure to comply with the public participation requirements 
of this part.
    (3) When the State's enforcement program fails to comply with the 
requirements of this part, including:
    (i) Failure to act on violations of permits or other program 
requirements;
    (ii) Failure to seek adequate enforcement penalties or to collect 
administrative fines when imposed, or to implement alternative 
enforcement methods approved by the Administrator; or
    (iii) Failure to inspect and monitor activities subject to 
regulation.

[[Page 301]]

    (4) When the State program fails to comply with the terms of the 
Memorandum of Agreement required under Sec. 233.13.
    (c) 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 the Administrator's 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 subsection (b) 
of this section. The Administrator shall respond in writing to any 
petition to commence withdrawal proceedings. He may conduct an informal 
review 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 shall fix a time and 
place for the commencement of the hearing, shall specify the allegations 
against the State which are to be considered at the hearing, and shall 
be published in the Federal Register. Within 30 days after publication 
of the Administrator's order in the Federal Register, the State shall 
admit or deny these allegations in a written answer. The party seeking 
withdrawal of the State's program shall have the burden of coming 
forward with the evidence in a hearing under this paragraph.
    (2) Definitions. For purposes of this paragraph the definition of 
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 
proceedings.
    (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) Section 22.02--(use of number/gender);
    (B) Section 22.04--(authorities of Presiding Officer);
    (C) Section 22.06--(filing/service of rulings and orders);
    (D) Section 22.09--(examination of filed documents);
    (E) Section 22.19 (a), (b) and (c)--(prehearing conference);
    (F) Section 22.22--(evidence);
    (G) Section 22.23--(objections/offers of proof);
    (H) Section 22.25--(filing the transcript; and
    (I) Section 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 Federal 
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.

[[Page 302]]

    (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 proceeding. 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 decisions 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 published in the 
Federal Register.
    (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 the 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 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 therefore 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

[[Page 303]]

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 involve 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 such 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 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 an 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 
prehearing 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 
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 
certification of the record and filing of the Presiding Officer's 
recommended 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 Act and this part, 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 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 appropriate corrective action has 
been taken.

[[Page 304]]

    (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 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 
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. 704.
    (d) Withdrawal of authorization under this section and the Act does 
not relieve any person from complying with the requirements of State 
law, nor does it affect the validity of actions taken by the State prior 
to withdrawal.

[53 FR 20776, June 1, 1988, as amended at 57 FR 5346, Feb. 13, 1992]