[Code of Federal Regulations]
[Title 40, Volume 17]
[Revised as of July 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 40CFR86.614-84]

[Page 40-48]
 
                   TITLE 40--PROTECTION OF ENVIRONMENT
 
         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
 
PART 86--CONTROL OF EMISSIONS FROM NEW AND IN-USE HIGHWAY VEHICLES AND 
ENGINES (CONTINUED)--Table of Contents
 
  Subpart G--Selective Enforcement Auditing of New Light-Duty Vehicles
 
Sec. 86.614-84  Hearings on suspension, revocation, and voiding of 
certificates of conformity.

    (a) Applicability. The procedures prescribed by this section apply 
whenever a manufacturer requests a hearing under Sec. 86.084-
30(d)(6)(i), Sec. 86.084-30(d)(7), or Sec. 86.612(i).
    (b) Definitions. The following definitions shall be applicable to 
this section:
    (1) Hearing Clerk shall mean the Hearing Clerk of the Environmental 
Protection Agency.
    (2) Manufacturer refers to a manufacturer contesting a suspension or 
revocation order directed at the manufacturer.
    (3) Party shall include the Agency and the manufacturer.
    (4) Presiding Officer shall mean an Administrative Law Judge 
appointed pursuant to 5 U.S.C. 3105 (see also 5 CFR part 930 as 
amended).
    (5) Environmental Appeals Board shall mean the Board within the 
Agency described in section 1.25 of this title. The Administrator 
delegates to the Environmental Appeals Board authority to issue final 
decisions in appeals filed under this subpart. Appeals directed by the 
Administrator, rather than to the Environmental Appeals Board, will not 
be considered. This delegation of authority to the Environmental Appeals 
Board does not preclude the Environmental Appeals Board from referring 
an appeal or a motion filed under this subpart to the Administrator for 
decision when the Environmental Appeals Board, in its discretion, deems 
it appropriate to do so. When an appeal or motion is referred to the 
Administrator, all parties shall be so notified and the rules in this 
part referring to the Environmental Appeals Board shall be interpreted 
as referring to the Administrator.
    (c) Request for public hearing. (1) If the manufacturer disagrees 
with the Administrator's decision to suspend, revoke, or void a 
certificate or disputes the basis for an automatic suspension under 
Sec. 86.612(a), it may request a public hearing as described in this 
section.

[[Page 41]]

Requests for such a hearing shall be filed with the Administrator not 
later than 15 days after the Administrator's notification of his 
decision to suspend or revoke unless otherwise specified by the 
Administrator. Two copies of such request shall simultaneously be served 
upon the Director of the Manufacturers Operations Division and two 
copies filed with the Hearing Clerk. Failure of the manufacturer to 
request a hearing within the time provided shall constitute a waiver of 
his right to such a hearing. Subsequent to the expiration of the period 
for requesting a hearing as of right, the Administrator may, in his 
discretion and for good cause shown, grant the manufacturer a hearing to 
contest the suspension or revocation.
    (2) The request for a public hearing shall contain:
    (i) A statement as to which vehicle configurations or engine 
families are to be the subject of the hearing;
    (ii) A concise statement of the issues to be raised by the 
manufacturer at the hearing for each vehicle configuration or engine 
family or vehicle for which the manufacturer has requested the hearing: 
Provided, however, That in the case of a hearing request under paragraph 
Sec. 86.612(i), the hearing is restricted to the following issues:
    (A) Whether tests were conducted in accordance with applicable 
regulations under this part;
    (B) Whether test equipment was properly calibrated and functioning;
    (C) Whether sampling procedures specified in appendix XI of this 
part were followed; and
    (D) Whether there exists a basis for distinguishing vehicles 
produced at plants other than the one from which vehicles were selected 
which would invalidate the Administrator's decision under 
Sec. 86.612(c);
    (iii) A statement specifying reasons the manufacturer believes he 
will prevail on the merits on each of the issues so raised; and
    (iv) A summary of the evidence which supports the manufacturer's 
position on each of the issues so raised.
    (3) A copy of all requests for public hearings shall be kept on file 
in the Office of the Hearing Clerk and shall be made available to the 
public during Agency business hours.
    (d) Summary decision. (1) In the case of a hearing requested under 
Sec. 86.612(i), when it clearly appears from the data and other 
information contained in the request for a hearing that there is no 
genuine and substantial question of fact with respect to the issues 
specified in Sec. 86.614(c)(2)(ii), the Administrator shall enter an 
order denying the request for a hearing. In addition, if the original 
decision to suspend or revoke a certificate of conformity was made under 
Sec. 86.612(d) prior to the decision to deny the request for a hearing, 
the order denying the request will reaffirm the suspension or 
revocation.
    (2) In the case of a hearing requested under Sec. 86.084-
30(d)(6)(i), to challenge a proposed suspension of a certificate of 
conformity for the reasons specified in Sec. 86.084-30(d)(1) (i) or 
(ii), when it clearly appears from the data and other information 
contained in the request for a hearing that there is no genuine and 
substantial question of fact with respect to the issue of whether the 
refusal to comply with the provisions of a test order or any other 
requirement of Sec. 86.603 was caused by conditions and circumstances 
outside the control of the manufacturer, the Administrator will enter an 
order denying the request for a hearing, and suspending the certificate 
of conformity.
    (3) Any order issued under paragraph (d) (1) or (2) of this section 
shall have the force and effect of a final decision of the 
Administrator, as issued pursuant to paragraph (w)(4) of this section.
    (4) If the Administrator determines that a genuine and substantial 
question of fact does exist with respect to any of the issues referred 
to in paragraphs (d)(1) and (2) of this section, he shall grant the 
request for a hearing and publish a notice of public hearing in 
accordance with paragraph (h) of this section.
    (e) Filing and service. (1) An original and two copies of all 
documents or papers required or permitted to be filed pursuant to this 
section shall be filed with the Hearing Clerk. Filing shall be deemed 
timely if mailed, as determined by the postmark, to the Hearing Clerk 
within the time allowed by this section. If filing is to be accomplished 
by

[[Page 42]]

mailing, the documents shall be sent to the address set forth in the 
notice of public hearing as described in paragraph (h) of this section.
    (2) To the maximum extent possible, testimony shall be presented in 
written form. Copies of written testimony shall be served upon all 
parties as soon as practicable prior to the start of the hearing. A 
certificate of service shall be provided on or accompany each document 
or paper filed with the Hearing Clerk. Documents to be served upon the 
Director of the Manufacturers Operations Division shall be sent by 
registered mail to: Director, Manufacturers Operations Division, U.S. 
Environmental Protection Agency (EN-340), 1200 Pennsylvania Ave., NW., 
WSM, Washington, DC 20460. Service by registered mail is complete upon 
mailing.
    (f) Time. (1) In computing any period of time prescribed or allowed 
by this section, except as otherwise provided, the day of the act or 
event from which the designated period of time begins to run shall not 
be included. Saturdays, Sundays, and Federal legal holidays shall be 
included in computing any such period allowed for the filing of any 
document or paper, except that when such period expires on a Saturday, 
Sunday, or Federal legal holiday, such period shall be extended to 
include the next following business day.
    (2) A prescribed period of time within which a party is required or 
permitted to do an act shall be computed from the time of service, 
except that when service is accomplished by mail, three days shall be 
added to the prescribed period.
    (g) Consolidation. The Administrator or the Presiding Officer in his 
discretion may consolidate two or more proceedings to be held under this 
section for the purpose of resolving one or more issues whenever it 
appears that such consolidation will expedite or simplify consideration 
of such issues. Consolidation shall not affect the right of any party to 
raise issues that could have been raised if consolidation had not 
occurred.
    (h) Notice of public hearings. (1) Notice of a public hearing under 
this section shall be given by publication in the Federal Register and 
by such other means as the Administrator finds appropriate to provide 
notice to the public. To the extent possible hearings under this section 
shall be scheduled to commence within 14 days of receipt of the 
application in paragraph (c) of this section.
    (i) Amicus curiae. Persons not parties to the proceeding wishing to 
file briefs may do so by leave of the Presiding Officer granted on 
motion. A motion for leave shall identify the interest of the applicant 
and shall state the reasons why the proposed amicus brief is desirable.
    (j) Presiding Officer. The Presiding Officer shall have the duty to 
conduct a fair and impartial hearing in accordance with 5 U.S.C. 
sections 554, 556 and 557 and to take all necessary action to avoid 
delay in the disposition of the proceedings and to maintain order. He 
shall have all power consistent with Agency rule and with the 
Administrative Procedure Act necessary to this end, including the 
following:
    (1) To administer oaths and affirmations;
    (2) To rule upon offers of proof and exclude irrelevant or 
repetitious material;
    (3) To regulate the course of the hearings and the conduct of the 
parties and their counsel therein;
    (4) To hold conferences for simplification of the issues or any 
other proper purpose;
    (5) To consider and rule upon all procedural and other motions 
appropriate in such proceedings;
    (6) To require the submission of direct testimony in written form 
with or without affidavit whenever, in the opinion of the Presiding 
Officer, oral testimony is not necessary for full and true disclosure of 
the facts;
    (7) To enforce agreements and orders requiring access as authorized 
by law;
    (8) To require the filing of briefs on any matter on which he is 
required to rule;
    (9) To require any party or any witness, during the course of the 
hearing, to state his position on any issue;
    (10) To take or cause depositions to be taken whenever the ends of 
justice would be served thereby;
    (11) To make decisions or recommend decisions to resolve the 
disputed issues on the record of the hearing;

[[Page 43]]

    (12) To issue, upon good cause shown, protective orders as described 
in paragraph (n) of this section.
    (k) Conferences. (1) At the discretion of the Presiding Officer, 
conferences may be held prior to or during any hearing. The Presiding 
Officer shall direct the Hearing Clerk to notify all parties of the time 
and location of any such conference. At the discretion of the Presiding 
Officer, persons other than parties may attend. At a conference the 
Presiding Officer may:
    (i) Obtain stipulations and admissions, receive requests and order 
depositions to be taken, identify disputed issues of fact and law, and 
require or allow the submission of written testimony from any witness or 
party;
    (ii) Set a hearing schedule for as many of the following as are 
deemed necessary by the Presiding Officer:
    (A) Oral and written statements;
    (B) Submission of written direct testimony as required or authorized 
by the Presiding Officer;
    (C) Oral direct and cross-examination of a witness where necessary 
as prescribed in paragraph (p) of this section: and
    (D) Oral argument, if appropriate.
    (iii) Identify matters of which official notice may be taken;
    (iv) Consider limitation of the number of expert and other 
witnesses;
    (v) Consider the procedure to be followed at the hearing; and
    (vi) Consider any other matter that may expedite the hearing or aid 
in the disposition of the issue.
    (2) The results of any conference including all stipulations shall, 
if not transcribed, be summarized in writing by the Presiding Officer 
and made part of the record.
    (l) Primary discovery (exchange of witness lists and documents). (1) 
At a prehearing conference or within some reasonable time set by the 
Presiding Officer prior to the hearing, each party shall make available 
to the other parties the names of the expert and other witnesses the 
party expects to call, together with a brief summary of their expected 
testimony and a list of all documents and exhibits which the party 
expects to introduce into evidence. Thereafter, witnesses, documents, or 
exhibits may be added and summaries of expected testimony amended upon 
motion by a party.
    (2) The Presiding Officer, may, upon motion by a party or other 
person, and for good cause shown, by order (i) restrict or defer 
disclosure by a party of the name of a witness or a narrative summary of 
the expected testimony of a witness, and (ii) prescribe other 
appropriate measures to protect a witness. Any party affected by any 
such action shall have an adequate opportunity, once he learns the name 
of a witness and obtains the narrative summary of his expected 
testimony, to prepare for the presentation of his case.
    (m) Other discovery. (1) Except as so provided by paragraph (l) of 
this section, further discovery, under this paragraph, shall be 
permitted only upon determination by the Presiding Officer:
    (i) That such discovery will not in any way unreasonably delay the 
proceeding;
    (ii) That the information to be obtained is not obtainable 
voluntarily; and
    (iii) That such information has significant probative value. The 
Presiding Officer shall be guided by the procedures set forth in the 
Federal Rules of Civil Procedure, where practicable, and the precedents 
thereunder, except that no discovery shall be undertaken except upon 
order of the Presiding Officer or upon agreement of the parties.
    (2) The Presiding Officer shall order depositions upon oral 
questions only upon a showing of good cause and upon a finding that:
    (i) The information sought cannot be obtained by alternative 
methods; or
    (ii) There is a substantial reason to believe that relevant and 
probative evidence may otherwise not be preserved for presentation by a 
witness at the hearing.
    (3) Any party to the proceeding desiring an order of discovery shall 
make a motion or motions therefor. Such a motion shall set forth:
    (i) The circumstances warranting the taking of the discovery;
    (ii) The nature of the information expected to be discovered; and
    (iii) The proposed time and place where it will be taken.

[[Page 44]]


If the Presiding Officer determines the motion should be granted, he 
shall issue an order for the taking of such discovery together with the 
conditions and terms thereof.
    (4) Failure to comply with an order issued pursuant to this 
paragraph may lead to the inference that the information to be 
discovered would be adverse to the person or party from whom the 
information was sought.
    (n) Protective orders, in camera proceedings. (1) Upon motion by a 
party or by the person from whom discovery is sought, and upon a showing 
by the movant that the disclosure of the information to be discovered, 
or a particular part thereof, (other than emission data) would result in 
methods or processes entitled to protection as trade secrets of such 
person being divulged, the Presiding Officer may enter a protective 
order with respect to such material. Any protective order shall contain 
such terms governing the treatment of the information as may be 
appropriate under the circumstances to prevent disclosure outside the 
hearing: Provided, That the order shall state that the material shall be 
filed separately from other evidence and exhibits in the hearing. 
Disclosure shall be limited to parties to the hearing, their counsel and 
relevant technical consultants, and authorized representatives of the 
United States concerned with carrying out the Act. Except in the case of 
the government, disclosure may be limited to counsel for parties who 
shall not disclose such information to the parties themselves. Except in 
the case of the government, disclosure to a party or his counsel shall 
be conditioned on execution of a sworn statement that no disclosure of 
the information will be made to persons not entitled to receive it under 
the terms of the protective order. (No such provision is necessary where 
government employees are concerned because disclosure by them is subject 
to the terms of 18 U.S.C. 1905.)
    (2)(i) A party or person seeking a protective order may be permitted 
to make all or part of the required showing in camera. A record shall be 
made of such in camera proceedings. If the Presiding Officer enters a 
protective order following a showing in camera, the record of such 
showing shall be sealed and preserved and made available to the agency 
or court in the event of appeal.
    (ii) Attendance at any in camera proceeding may be limited to the 
Presiding Officer, the agency, and the person or party seeking the 
protective order.
    (3) Any party, subject to the terms and conditions of any protective 
order issued pursuant to paragraph (n)(1) of this section, desiring for 
the presentation of his case to make use of any in camera documents or 
testimony shall make application to the Presiding Officer by motion 
setting forth the justification therefor. The Presiding Officer, in 
granting any such motion, shall enter an order protecting the rights of 
the affected persons and parties and preventing unnecessary disclosure 
of such information, including the presentation of such information and 
oral testimony and cross-examination concerning it in executive session, 
as in his discretion is necessary and practicable.
    (4) In the submittal of proposed findings, briefs, or other papers, 
counsel for all parties shall make a good faith attempt to refrain from 
disclosing the specific details of in camera documents and testimony. 
This shall not preclude references in such proposed findings, briefs, or 
other papers to such documents or testimony including generalized 
statements based on their contents. To the extent that counsel considers 
it necessary to include specific details in their presentations, such 
data shall be incorporated in separate proposed findings, briefs, or 
other papers marked ``confidential,'' which shall become part of the in 
camera record.
    (o) Motions. (1) All motions, except those made orally during the 
course of the hearing, shall be in writing and shall state with 
particularity the grounds therefore, shall set forth the relief or order 
sought, and shall be filed with the Hearing Clerk and served upon all 
parties.
    (2) Within such time as may be fixed by the Environmental Appeals 
Board or the Presiding Officer, as appropriate, any party may serve and 
file an answer to the motion. The movant

[[Page 45]]

shall, if requested by the Environmental Appeals Board or the Presiding 
Officer, as appropriate, serve and file reply papers within the time set 
by the request.
    (3) The Presiding Officer shall rule upon all motions filed or made 
prior to the filing of his decision or accelerated decision, as 
appropriate. The Environmental Appeals Board shall rule upon all motions 
filed prior to the appointment of a Presiding Officer and all motions 
filed after the filing of the decision of the Presiding Officer or 
accelerated decision. Oral argument of motions will be permitted only if 
the Presiding Officer or the Environmental Appeals Board, as 
appropriate, deems it necessary.
    (p) Evidence. (1) The official transcripts and exhibits, together 
with all papers and requests filed in the proceeding, shall constitute 
the record. Immaterial or irrelevant parts of an admissible document 
shall be segregated and excluded so far as practicable. Documents or 
parts thereof subject to a protective order under paragraph (n) of this 
section shall be segregated. Evidence may be received at the hearing 
even though inadmissible under the rules of evidence applicable to 
judicial proceedings. The weight to be given evidence shall be 
determined by its reliability and probative value.
    (2) The Presiding Officer shall allow the parties to examine and 
cross-examine a witness to the extent that such examination and cross-
examination is necessary for a full and true disclosure of the facts.
    (3) Rulings of the Presiding Officer on the admissibility of 
evidence, the propriety of examination and cross-examination and other 
procedural matters shall appear in the record.
    (4) Parties shall automatically be presumed to have taken exception 
to an adverse ruling.
    (q) Record. (1) Hearings shall be stenographically reported and 
transcribed and the original transcripts shall be part of the record and 
the sole official transcript. Copies of the record shall be filed with 
the Hearing Clerk and made available during Agency business hours for 
public inspection. Any person desiring a copy of the record of the 
hearing or any part thereof, except as provided in paragraph (n) of this 
section, shall be entitled to the same upon payment of the cost thereof.
    (2) The official transcripts and exhibits, together with all papers 
and requests filed in the proceeding, shall constitute the record.
    (r) Proposed findings, conclusions. (1) Within 4 days of the close 
of the reception of evidence, or within such longer time as may be fixed 
by the Presiding Officer, any party may submit for the consideration of 
the Presiding Officer proposed findings of fact, conclusions of law, and 
a proposed order, together with reasons therefor and briefs in support 
thereof. Such proposals shall be in writing, shall be served upon all 
parties, and shall contain adequate references to the record and 
authorities relied upon.
    (2) The record shall show the Presiding Officer's ruling on the 
proposed findings and conclusions except when his order disposing of the 
proceeding otherwise informs the parties of the action taken by him 
thereon.
    (s) Decision of the Presiding Officer. (1) Unless extended by the 
Environmental Appeals Board, the Presiding Officer shall issue and file 
with the Hearing Clerk his decision within 14 days (or within 7 days in 
the case of a hearing requested under Sec. 86.612(i)) after the period 
for filing proposed findings as provided for in paragraph (r) of this 
section has expired.
    (2) The Presiding Officer's decision shall become the decision of 
the Environmental Appeals Board (i) when no notice of intention to 
appeal as described in paragraphs (t) and (u) of this section is filed, 
10 days after issuance thereof, unless in the interim the Environmental 
Appeals Board shall have taken action to review or stay the effective 
date of the decision; or (ii), when a notice of intention to appeal is 
filed but the appeal is not perfected as required by paragraphs (t) or 
(u) of this section, 5 days after the period allowed for perfection of 
an appeal has expired unless within that 5 day period, the Environmental 
Appeals Board shall have taken action to review or stay the effective 
date of the decision.
    (3) The Presiding Officer's decision shall include a statement of 
findings

[[Page 46]]

and conclusions, as well as the reasons or basis therefore, upon all the 
material issues of fact or law presented on the record and an 
appropriate rule or order. Such decision shall be supported by 
substantial evidence and based upon a consideration of the whole record.
    (4) At any time prior to the issuance of his decision, the Presiding 
Officer may reopen the proceeding for the reception of further evidence. 
Except for the correction of clerical errors, the jurisdication of the 
Presiding Officer is terminated upon the issuance of his decision.
    (t) Appeal from the decision of the Presiding Officer. (1) Any party 
to a proceeding may appeal the Presiding Officer's decision to the 
Environmental Appeals Board, Provided, That within 10 days after 
issuance of the Presiding Officer's decision such party files a notice 
of intention to appeal and an appeal brief within 20 days of such 
decision.
    (2) When an appeal is taken from the decision of the Presiding 
Officer, any party may file a brief with respect to such appeal. The 
brief shall be filed within 15 days of the date of the filing of the 
appellant's brief.
    (3) Any brief filed pursuant to this paragraph shall contain in the 
order indicated, the following:
    (i) A subject index of the matter in the brief, with page 
references, and a table of cases (alphabetically arranged) textbooks, 
statutes, and other material cited, with page references thereto;
    (ii) A specification of the issues intended to be urged: Provided, 
however, That in the case of a hearing requested under Sec. 86.612(i), 
the brief shall be restricted to the issues specified in paragraph 
(c)(2)(ii) of this section;
    (iii) The argument presenting clearly the points of fact and law 
relied upon in support of the position taken on each issue, with 
specific page references to the record and the legal or other material 
relied upon; and
    (iv) A proposed order for the Environmental Appeals Board's 
consideration if different from the order contained in the Presiding 
Officer's decision.
    (4) No brief in excess of 40 pages shall be filed without leave of 
the Environmental Appeals Board.
    (5) Oral argument shall be allowed only in the discretion of the 
Environmental Appeals Board.
    (u) Summary appeal. (1) In the case of a hearing requested under 
Sec. 86.612(i), any appeal taken from the decision of the Presiding 
Officer shall be conducted under this paragraph.
    (2) Any party to the proceeding may appeal the Presiding Officer's 
decision to the Environmental Appeals Board by filing a notice of appeal 
within 10 days.
    (3) The notice appeal shall be in the form of a brief, and shall 
conform to the requirements of paragraph (t)(3) of this section.
    (4) Within 10 days after a notice of appeal from the decision of the 
Presiding Officer is filed under this paragraph, any party may file a 
brief with respect to such appeal.
    (5) No brief in excess of 15 pages shall be filed without leave of 
the Environmental Appeals Board.
    (v) Review of the Presiding Officer's decision in absence of appeal. 
(1) If after the expiration of the period for taking an appeal as 
provided for by paragraph (t) or (u) of this section no notice of 
intention to appeal the decision of the Presiding Officer has been 
filed, or if filed, not perfected, the Hearing Clerk shall so notify the 
Environmental Appeals Board.
    (2) The Environmental Appeals Board, upon receipt of notice from the 
Hearing Clerk that no notice of intention to appeal the decision of the 
Presiding Officer has been filed, or if filed, not perfected pursuant to 
paragraph (t) or (u) of this section, may, on its own motion, within the 
time limits specified in paragraph (s)(2) of this section, review the 
decision of the Presiding Officer. Notice of the intention of the 
Environmental Appeals Board to review the decision of the Presiding 
Officer shall be given to all parties and shall set forth the scope of 
such review and the issues which shall be considered and shall make 
provision for filing of briefs.
    (w) Decision of appeal or review. (1) Upon appeal from or review of 
the Presiding Officer's decision, the Environmental Appeals Board shall 
consider such parts of the record as are cited or as may be necessary to 
resolve the

[[Page 47]]

issues presented and in addition shall, to the extent necessary or 
desirable, exercise all the powers which it could have exercised if it 
had presided at the hearing.
    (2) In rendering its decision, the Environmental Appeals Board shall 
adopt, modify or set aside the findings, conclusions, and order 
contained in the decision of the Presiding Officer and shall set forth 
in its decision a statement of the reasons or bases for its action.
    (3) In those cases where the Environmental Appeals Board determines 
that it should further information or additional views of the parties as 
to the form and content of the rule or order to be issued, the 
Environmental Appeals Board, in its discretion, may withhold final 
action pending the receipt of such additional information or views, or 
may remand the case to the Presiding Officer.
    (4) Any decision rendered under this paragraph which completes 
disposition of a case shall be a final decision of the Environmental 
Appeals Board.
    (x) Reconsideration. Within twenty (20) days after issuance of the 
Environmental Appeals Board's decision, any party may file with the 
Environmental Appeals Board a petition for reconsideration of such 
decision, setting forth the relief desired and the grounds in support 
thereof. Any petition filed under this subsection must be confined to 
new questions raised by the decision or final order and upon which the 
petitioner had no opportunity to argue before the Presiding Officer or 
the Environmental Appeals Board; Provided, however, That in the case of 
a hearing requested under Sec. 86.612(i) such new questions shall be 
limited to the issues specified in paragraph (c)(2)(ii) of this section. 
Any party desiring to oppose such a petition shall file an answer 
thereto within ten (10) days after the filing of the petition. The 
filing of a petition for reconsideration shall not operate to stay the 
effective date of the decision or order or to toll the running of any 
statutory time period affecting such decision or order unless 
specifically so ordered by the Environmental Appeals Board.
    (y) Accelerated decision, dismissal. (1) The Presiding Officer, upon 
motion of any party or sua sponte, may at any time render an accelerated 
decision in favor of the Agency or the manufacturer as to all or any 
part of the proceeding, without further hearing or upon such limited 
additional evidence such as affidavits as he may require, or dismiss any 
party with prejudice, for any of the following reasons:
    (i) Failure to state a claim upon which relief can be granted, or 
direct or collateral estoppel;
    (ii) The lack of any genuine issue of material fact, causing a party 
to be entitled to judgment as a matter of law; or
    (iii) Such other and further reasons as are just, including 
specifically failure to obey a procedural order of the Presiding 
Officer.
    (2) If under this paragraph an accelerated decision is issued as to 
all the issues and claims joined in the proceeding, the decision shall 
be treated for the purposes of these procedures as the decision of the 
Presiding Officer as provided in paragraph (s) of this section.
    (3) If under this paragraph, judgment is rendered on less than all 
issues or claims in the proceeding, the Presiding Officer shall 
determine what material facts exist without substantial controversy and 
what material facts are actually and in good faith controverted. He 
shall thereupon issue an order specifying the facts which appear without 
substantial controversy, and the issues and claims upon which the 
hearing will proceed.
    (z) Conclusion of hearing. (1) If, after the expiration of the 
period for taking an appeal as provided for by paragraph (t) and (u) of 
this section, no appeal has been taken from the Presiding Officer's 
decision, and after the expiration of the period for review by the 
Environmental Appeals Board on its own motion as provided for by 
paragraph (v) of this section, the Environmental Appeals Board does not 
move to review such decision, the hearing will be deemed to have ended 
at the expiration of all periods allowed for such appeal and review.
    (2) If an appeal of the Presiding Officer's decision is taken 
pursuant to paragraphs (t) and (u) of this section, or if, in the 
absence of such appeal, the Environmental Appeals Board moves to

[[Page 48]]

review the decision of the Presiding Officer pursuant to paragraph (v) 
of this section, the hearing will be deemed to have ended upon rendering 
of a final decision by the Environmental Appeals Board.
    (aa) Judicial review. (1) The Administrator hereby designates the 
General Counsel, Environmental Protection Agency as the officer upon 
whom copy of any petition for judicial review shall be served. Such 
officer shall be responsible for filing in the court the record on which 
the order of the Environmental Appeals Board is based.
    (2) Before forwarding the record to the court, the Agency shall 
advise the petitioner of costs of preparing it and as soon as payment to 
cover fees is made, shall forward the record to the court.

[41 FR 31483, July 28, 1976, as amended at 43 FR 4553, Feb. 2, 1978; 44 
FR 61962, Oct. 29, 1979. Redesignated and amended at 49 FR 48484, Dec. 
12, 1984, and further redesignated at 54 FR 2123, Jan. 19, 1989; 57 FR 
5330, Feb. 13, 1992]