[Code of Federal Regulations]
[Title 40, Volume 1]
[Revised as of July 1, 2004]
From the U.S. Government Printing Office via GPO Access
[CITE: 40CFR22.27]

[Page 256]
 
                   TITLE 40--PROTECTION OF ENVIRONMENT
 
               CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY
 
PART 22_CONSOLIDATED RULES OF PRACTICE GOVERNING THE ADMINISTRATIVE 
 
        Subpart E_Initial Decision and Motion To Reopen a Hearing
 
Sec. 22.27  Initial Decision.


    (a) Filing and contents. After the period for filing briefs under 
Sec. 22.26 has expired, the Presiding Officer shall issue an initial 
decision. The initial decision shall contain findings of fact, 
conclusions regarding all material issues of law or discretion, as well 
as reasons therefor, and, if appropriate, a recommended civil penalty 
assessment, compliance order, corrective action order, or Permit Action. 
Upon receipt of an initial decision, the Regional Hearing Clerk shall 
forward copies of the initial decision to the Environmental Appeals 
Board and the Assistant Administrator for the Office of Enforcement and 
Compliance Assurance.
    (b) Amount of civil penalty. If the Presiding Officer determines 
that a violation has occurred and the complaint seeks a civil penalty, 
the Presiding Officer shall determine the amount of the recommended 
civil penalty based on the evidence in the record and in accordance with 
any penalty criteria set forth in the Act. The Presiding Officer shall 
consider any civil penalty guidelines issued under the Act. The 
Presiding Officer shall explain in detail in the initial decision how 
the penalty to be assessed corresponds to any penalty criteria set forth 
in the Act. If the Presiding Officer decides to assess a penalty 
different in amount from the penalty proposed by complainant, the 
Presiding Officer shall set forth in the initial decision the specific 
reasons for the increase or decrease. If the respondent has defaulted, 
the Presiding Officer shall not assess a penalty greater than that 
proposed by complainant in the complaint, the prehearing information 
exchange or the motion for default, whichever is less.
    (c) Effect of initial decision. The initial decision of the 
Presiding Officer shall become a final order 45 days after its service 
upon the parties and without further proceedings unless:
    (1) A party moves to reopen the hearing;
    (2) A party appeals the initial decision to the Environmental 
Appeals Board;
    (3) A party moves to set aside a default order that constitutes an 
initial decision; or
    (4) The Environmental Appeals Board elects to review the initial 
decision on its own initiative.
    (d) Exhaustion of administrative remedies. Where a respondent fails 
to appeal an initial decision to the Environmental Appeals Board 
pursuant to Sec. 22.30 and that initial decision becomes a final order 
pursuant to paragraph (c) of this section, respondent waives its rights 
to judicial review. An initial decision that is appealed to the 
Environmental Appeals Board shall not be final or operative pending the 
Environmental Appeals Board's issuance of a final order.