[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: 40CFR27.10]

[Page 299-300]
 
                   TITLE 40--PROTECTION OF ENVIRONMENT
 
               CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY
 
PART 27_PROGRAM FRAUD CIVIL REMEDIES--Table of Contents
 
Sec. 27.10  Default upon failure to file an answer.

    (a) If the defendant does not file an answer within the time 
prescribed in Sec. 27.9(a), the reviewing official may file the 
complaint with the hearing clerk as provided in Sec. 27.11.
    (b) Upon assignment of the complaint to a presiding officer, the 
presiding officer shall promptly serve on defendant in the manner 
prescribed in Sec. 27.8, a notice that an initial decision will be 
issued under this section.
    (c) The presiding officer shall assume the facts alleged in the 
complaint to be true, and, if such facts establish liability under Sec. 
27.3, the presiding officer shall issue an initial decision imposing the 
maximum amount of penalties and assessments allowed under the statute.
    (d) Except as otherwise provided in this section, by failing to file 
a timely answer, the defendant waives any right to further review of the 
penalties and assessments imposed under paragraph (c) of this section, 
and the initial decision shall become final and binding upon the parties 
30 days after it is issued.
    (e) If, before such an initial decision becomes final, the defendant 
files a motion seeking to reopen on the grounds that extraordinary 
circumstances prevented the defendant from filing an answer, the initial 
decision shall be stayed pending the presiding officer's decision on the 
motion.
    (f) If, on such motion, the defendant can demonstrate extraordinary 
circumstances excusing the failure to file a timely answer, the 
presiding officer shall withdraw the initial decision in paragraph (c) 
of this section, if such a decision has been issued, and shall grant the 
defendant an opportunity to answer the complaint.
    (g) A decision of the presiding officer denying a defendant's motion 
under paragraph (e) of this section, is not subject to reconsideration 
under Sec. 27.38.
    (h) The defendant may appeal to the Environmental Appeals Board the 
decision denying a motion to reopen by filing a notice of appeal within 
15 days after the presiding officer denies the section. The timely 
filing of a notice of appeal shall stay the initial decision the 
Environmental Appeals Board decides the issue.

[[Page 300]]

    (i) If the defendant files a timely notice of appeal, the presiding 
officer shall forward the record of the proceeding to the Environmental 
Appeals Board.
    (j) The Environmental Appeals Board shall decide expeditiously 
whether extraordinary circumstances excuse the defendant's failure to 
file a timely answer based solely on the record before the presiding 
officer.
    (k) If the Environmental Appeals Board decides that extraordinary 
circumstances excused the defendant's failure to file a timely answer, 
the Environmental Appeals Board shall remand the case to the presiding 
officer with instructions to grant the defendant an opportunity to 
answer.
    (l) If the Environmental Appeals Board decides that the defendant's 
failure to file a timely answer is not excused, the Environmental 
Appeals Board shall reinstate the initial decision of the presiding 
officer, which shall become final and binding upon the parties 30 days 
after the Environmental Appeals Board issues such decision.

[45 FR 24363, Apr. 9, 1980, as amended at 57 FR 5326, Feb. 13, 1992]