[Code of Federal Regulations]

[Title 40, Volume 23]

[Revised as of July 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 40CFR164.121]



[Page 177-178]

 

                   TITLE 40--PROTECTION OF ENVIRONMENT

 

         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)

 

PART 164_RULES OF PRACTICE GOVERNING HEARINGS, UNDER THE FEDERAL 

 

       Subpart C_General Rules of Practice for Expedited Hearings

 

Sec.  164.121  Expedited hearing.



    (a) Request. (1) An expedited hearing shall be held whenever the 

Administrator has received from the registrant a timely request for such 

hearing in response to the Administrator's notice of intention to 

suspend.

    (2) A request for an expedited hearing is timely if made in writing 

or by telegram and filed with the office of the hearing clerk within 5 

days of the registrant's receipt of the notice of intention to suspend.

    (3) At the time of filing a request for an expedited hearing, the 

registrant shall also file a document setting forth objections to the 

Administrator's notice of intention to suspend and its findings 

pertaining to the question of imminent hazard. Such objections shall 

conform to the requirements of Sec.  164.21.

    (b) Presiding officer. (1) An expedited hearing shall be conducted 

by a presiding officer appointed by the Administrator, and such officer 

need not be an Administrative Law Judge.

    (2) The presiding officer shall not have the authority to make an 

initial decision on the merits but shall make a recommended decision 

only.

    (c) The issue. The expedited hearing shall address only the issue of 

whether an imminent hazard exists.

    (d) Time of hearing. The hearing shall commence within 5 days after 

the filing of the request with the office of the hearing clerk unless 

the registrant and respondent agree that it shall commence at a later 

time. As soon as possible, the presiding officer shall publish in the 

Federal Register notice of such hearing.

    (e) Intervention. Any person adversely affected by the 

Administrator's notice may move to intervene within 5 days after the 

receipt by the registrant of said notice or at any time prior to the 

conclusion of the presentation of the evidence, upon good cause found, 

except

    (1) Leave to intervene will be granted only if the motion to 

intervene meets the standards of Sec.  164.31 and, in addition, 

indicates that the movant would raise matters or introduce evidence 

pertinent to the issue of imminent hazard which would substantially 

assist in its resolution.

    (2) A movant denied permission to intervene under this section but 

who otherwise meets the standards of Sec.  164.31 and who is adversely 

affected may file proposed findings and conclusions and briefs in 

support thereof pursuant to



[[Page 178]]



paragraph (j) of this section. Any person filing under this subsection 

shall be deemed to have been a party to the proceeding, for all purposes 

of its further review.

    (3) When an ``emergency order'' is issued pursuant to Sec.  164.123, 

no person other than the respondent and the registrant shall participate 

in the hearing except that any person adversely affected may file 

proposed findings and conclusions and briefs in support thereof pursuant 

to paragraph (j) of this section. Any person filing under this 

subsection shall be deemed to have been a party to the proceeding for 

all purposes of its further review.

    (f) Appearances and consolidation. The provisions of Sec. Sec.  

164.30 and 164.32 apply to an expedited hearing insofar as may be 

practicable.

    (g) Order of proceeding and burden of proof. At the hearing, the 

proponent of suspension shall have the burden of going forward to 

present an affirmative case for the suspension. However, the ultimate 

burden of persuasion shall rest with the proponent of the registration.

    (h) Evidence. The provisions of Sec.  164.81, where applicable, 

apply to an expedited hearing.

    (i) Transcripts. The presiding officer shall make provision for 

daily transcripts and otherwise comply with the provisions of Sec.  

164.82.

    (j) Proposed findings or conclusions; recommended decision. (1) 

Within 4 days of the conclusion of the presentation of evidence, the 

parties may propose findings and conclusions to the Presiding Officer. 

Such proposed findings and conclusions shall be accompanied by a brief 

with supporting reasons.

    (2) Within 8 days of the conclusion of the presentation of evidence, 

the Presiding Officer shall submit to the parties his proposed 

recommended findings and conclusions and a statement of the reasons on 

which they are based.

    (3) Within 10 days of the conclusion of the presentation of evidence 

the Presiding Officer shall submit to the Environmental Appeals Board 

his recommended findings and conclusions, together with the record.

    (4) Within 12 days of the conclusion of the presentation of evidence 

the parties shall submit to the Environmental Appeals Board their 

objections to the Presiding Officer's recommended findings and 

conclusions and written briefs in support thereof.



[38 FR 19371, July 20, 1973, as amended at 57 FR 5344, Feb. 13, 1992]