[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: 40CFR179.90]



[Page 288]

 

                   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.  179.90  Summary decisions.



    (a) After the hearing commences, a party may file a written motion, 

with or without supporting affidavits or brief, for a summary decision 

on any issue in the hearing. Any other party may, within 10 days after 

service of the motion, which time may be extended for an additional 10 

days for good cause shown, serve opposing affidavits or brief or 

countermove for summary decision. The presiding officer may set the 

matter for argument and call for the submission of briefs if not 

submitted by the parties.

    (b) The presiding officer will grant the motion if the objections, 

requests for hearing, other pleadings, affidavits, and other material 

filed in connection with the hearing, or matters officially noticed, 

show that there is no genuine disagreement as to any material fact 

bearing on the issue and that a party is entitled to summary decision.

    (c) Affidavits should set forth facts that would be admissible in 

evidence and show affirmatively that the affiant is competent to testify 

to the matters stated. When a properly supported motion for summary 

decision is made, a party opposing the motion may not rest upon mere 

allegations or denials or general descriptions of positions and 

contentions; affidavits or other responses must demonstrate specifically 

that there is a genuine issue of material fact for the hearing.

    (d) Should it appear from the affidavits of a party opposing the 

motion that for sound reasons stated, facts essential to justify the 

opposition cannot be presented by affidavit, the presiding officer may 

deny the motion for summary decision, order a continuance to permit 

affidavits or additional evidence to be obtained, or issue other just 

order.

    (e) If a summary decision is not rendered upon all issues or for all 

the relief asked, and evidentiary facts need to be developed, the 

presiding officer will issue an order specifying the facts that appear 

without substantial controversy and directing further evidentiary 

proceedings. The facts so specified will be deemed established.

    (f) A party may obtain interlocutory review by the Administrator of 

a summary decision of the presiding officer.