[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: 40CFR179.83]



[Page 286-287]

 

                   TITLE 40--PROTECTION OF ENVIRONMENT

 

         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)

 

PART 179_FORMAL EVIDENTIARY PUBLIC HEARING--Table of Contents

 

                      Subpart E_Hearing Procedures

 

Sec.  179.83  Disclosure of data and information.



    (a) Within 60 days of the publication of the Notice of Hearing under 

Sec.  l79.20, or, if no party will be prejudiced, within another period 

set by the presiding officer, the Assistant Administrator shall file 

with the hearing clerk, in accordance with Sec.  179.80, the following 

documents numbered and organized in the manner prescribed by the 

presiding officer:

    (1) The portions of the administrative record of the proceeding 

developed under part 178 of this chapter, and under part 180 of this 

chapter, that are relevant to the issues in the hearing.

    (2) All documents in the files of OPPTS containing factual 

information or expert opinion, whether favorable or unfavorable to the 

position of OPPTS, which relate to the issues involved in the hearing. 

For purposes of this paragraph, ``files'' means the principal files in 

OPPTS in which documents relating to each of the issues in the hearing 

are ordinarily kept. Documents that are internal memoranda reflecting 

the deliberative process, or are attorney work product, or were prepared 

specifically for use in connection with the hearing, are not required to 

be submitted.

    (3) All other documentary data and information upon which OPPTS 

plans to rely upon in the hearing.

    (4) A narrative position statement on the factual issues in the 

Notice of Hearing and the nature of the supporting evidence that OPPTS 

intends to introduce.

    (5) A signed statement that, to the best knowledge and belief of the 

Assistant Administrator, the submission complies with this section.

    (b) Within 70 days of the publication of the Notice of Hearing or, 

if no party will be prejudiced, within another period of time set by the 

presiding officer, each party other than OPPTS shall submit to the 

hearing clerk in accordance with Sec.  179.80 the following documents, 

numbered and organized in the manner prescribed by the presiding 

officer:

    (1) Any objections that the administrative record filed under 

paragraph (a)(l) of this section is incomplete.

    (2) All documents (other than those filed under paragraph (a) of 

this section) in the party's files containing factual information or 

expert opinion, whether favorable or unfavorable to the party's 

position, that relates to the issues involved in the hearing. For 

purposes of this paragraph, ``files'' means the party's principal files 

in which documents relating to each of the issues in the hearing are 

ordinarily kept. Documents that are attorney work product, or were 

prepared specifically for use in connection with the hearing, are not 

required to be submitted.

    (3) All other documentary data and information the party plans to 

rely upon in the hearing.

    (4) A narrative position statement on the factual issues in the 

Notice of Hearing and the nature of the supporting evidence the party 

intends to introduce.

    (5) A signed statement that, to the best knowledge and belief of the 

party, the submission complies with this section.

    (c) Submissions required by paragraphs (a) and (b) of this section 

may be supplemented later in the proceeding, with the approval of the 

presiding officer, upon a showing that the material contained in the 

supplement was not reasonably known by or available to the party when 

the submission was made or that the relevance of the material contained 

in the supplement could not reasonably have been foreseen.



[[Page 287]]



    (d) If a party fails to comply substantially and in good faith with 

this section, the presiding officer may infer that such failure was for 

the purpose of withholding information that is unfavorable to the 

party's position, and may make such further adverse inferences and 

findings with respect to such failure as are warranted.

    (e) Parties may reference each other's submissions. To reduce 

duplicative submissions, parties are encouraged to exchange and 

consolidate lists of documentary evidence. If a particular document is 

bulky or in limited supply and cannot reasonably be reproduced, and it 

constitutes relevant evidence, the presiding officer may authorize 

submission of a reduced number of copies.

    (f) The presiding officer will rule on questions relating to this 

section.



[55 FR 50293, Dec. 5, 1990, as amended at 57 FR 28087, June 24, 1992; 70 

FR 33359, June 8, 2005]