[Code of Federal Regulations]

[Title 40, Volume 24]

[Revised as of July 1, 2006]

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

[CITE: 40CFR233.53]



[Page 304-307]

 

                   TITLE 40--PROTECTION OF ENVIRONMENT

 

         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)

 

PART 233_404 STATE PROGRAM REGULATIONS--Table of Contents

 

                       Subpart F_Federal Oversight

 

Sec.  233.53  Withdrawal of program approval.



    (a) A State with a program approved under this part may voluntarily 

transfer program responsibilities required by Federal law to the 

Secretary by taking the following actions, or in such other manner as 

may be agreed upon with the Administrator.

    (1) The State shall give the Administrator and the Secretary 180 

days notice of the proposed transfer. The State shall also submit a plan 

for the orderly transfer of all relevant program information not in the 

possession of the Secretary (such as permits, permit files, reports, 

permit applications) which are necessary for the Secretary to administer 

the program.

    (2) Within 60 days of receiving the notice and transfer plan, the 

Administrator and the Secretary shall evaluate the State's transfer plan 

and shall identify for the State any additional information needed by 

the Federal government for program administration.

    (3) At least 30 days before the transfer is to occur the 

Administrator shall publish notice of transfer in the Federal Register 

and in a sufficient number of the largest newspapers in the State to 

provide statewide coverage, and shall mail notice to all permit holders, 

permit applicants, other regulated persons and other interested persons 

on appropriate EPA, Corps and State mailing lists.

    (b) The Administrator may withdraw program approval when a State 

program no longer complies with the requirements of this part, and the 

State fails to take corrective action. Such circumstances include the 

following:

    (1) When the State's legal authority no longer meets the 

requirements of this part, including:

    (i) Failure of the State to promulgate or enact new authorities when 

necessary; or

    (ii) Action by a State legislature or court striking down or 

limiting State authorities.

    (2) When the operation of the State program fails to comply with the 

requirements of this part, including:

    (i) Failure to exercise control over activities required to be 

regulated under this part, including failure to issue permits;

    (ii) Issuance of permits which do not conform to the requirements of 

this part; or

    (iii) Failure to comply with the public participation requirements 

of this part.

    (3) When the State's enforcement program fails to comply with the 

requirements of this part, including:

    (i) Failure to act on violations of permits or other program 

requirements;

    (ii) Failure to seek adequate enforcement penalties or to collect 

administrative fines when imposed, or to implement alternative 

enforcement methods approved by the Administrator; or

    (iii) Failure to inspect and monitor activities subject to 

regulation.

    (4) When the State program fails to comply with the terms of the 

Memorandum of Agreement required under Sec.  233.13.

    (c) The following procedures apply when the Administrator orders the 

commencement of proceedings to determine whether to withdraw approval of 

a State program:

    (1) Order. The Administrator may order the commencement of 

withdrawal proceedings on the Administrator's initiative or in response 

to a petition from an interested person alleging failure of the State to 

comply with the requirements of this part as set forth in subsection (b) 

of this section. The Administrator shall respond in writing to any 

petition to commence withdrawal proceedings. He may conduct an informal 

review of the allegations in the petition to determine whether cause 

exists to commence proceedings under this paragraph. The Administrator's 

order commencing proceedings



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under this paragraph shall fix a time and place for the commencement of 

the hearing, shall specify the allegations against the State which are 

to be considered at the hearing, and shall be published in the Federal 

Register. Within 30 days after publication of the Administrator's order 

in the Federal Register, the State shall admit or deny these allegations 

in a written answer. The party seeking withdrawal of the State's program 

shall have the burden of coming forward with the evidence in a hearing 

under this paragraph.

    (2) Definitions. For purposes of this paragraph the definition of 

Administrative Law Judge, Hearing Clerk, and Presiding Officer in 40 CFR 

22.03 apply in addition to the following:

    (i) Party means the petitioner, the State, the Agency, and any other 

person whose request to participate as a party is granted.

    (ii) Person means the Agency, the State and any individual or 

organization having an interest in the subject matter of the 

proceedings.

    (iii) Petitioner means any person whose petition for commencement of 

withdrawal proceedings has been granted by the Administrator.

    (3) Procedures. (i) The following provisions of 40 CFR Part 22 

[Consolidated Rules of Practice] are applicable to proceedings under 

this paragraph:

    (A) Section 22.02--(use of number/gender);

    (B) Section 22.04--(authorities of Presiding Officer);

    (C) Section 22.06--(filing/service of rulings and orders);

    (D) Section 22.09--(examination of filed documents);

    (E) Section 22.19 (a), (b) and (c)--(prehearing conference);

    (F) Section 22.22--(evidence);

    (G) Section 22.23--(objections/offers of proof);

    (H) Section 22.25--(filing the transcript; and

    (I) Section 22.26--(findings/conclusions).

    (ii) The following provisions are also applicable:

    (A) Computation and extension of time.

    (1) Computation. In computing any period of time prescribed or 

allowed in these rules of practice, except as otherwise provided, the 

day of the event from which the designated period begins to run shall 

not be included. Saturdays, Sundays, and Federal legal holidays shall be 

included. When a stated time expires on a Saturday, Sunday or Federal 

legal holiday, the stated time period shall be extended to include the 

next business day.

    (2) Extensions of time. The Administrator, Regional Administrator, 

or Presiding Officer, as appropriate, may grant an extension of time for 

the filing of any pleading, document, or motion (i) upon timely motion 

of a party to the proceeding, for good cause shown and after 

consideration of prejudice to other parties, or (ii) upon his own 

motion. Such a motion by a party may only be made after notice to all 

other parties, unless the movant can show good cause why serving notice 

is impracticable. The motion shall be filed in advance of the date on 

which the pleading, document or motion is due to be filed, unless the 

failure of a party to make timely motion for extension of time was the 

result of excusable neglect.

    (3) The time for commencement of the hearing shall not be extended 

beyond the date set in the Administrator's order without approval of the 

Administrator.

    (B) Ex parte discussion of proceeding. At no time after the issuance 

of the order commencing proceedings shall the Administrator, the 

Regional Administrator, the Regional Judicial Officer, the Presiding 

Officer, or any other person who is likely to advise these officials in 

the decisions on the case, discuss ex parte the merits of the proceeding 

with any interested person outside the Agency, with any Agency staff 

member who performs a prosecutorial or investigative function in such 

proceeding or a factually related proceeding, or with any representative 

of such person. Any ex parte memorandum or other communication addressed 

to the Administrator, the Regional Administrator, the Regional Judicial 

Officer, or the Presiding Officer during the pendency of the proceeding 

and relating to the merits thereof, by



[[Page 306]]



or on behalf of any party shall be regarded as argument made in the 

proceeding and shall be served upon all other parties. The other parties 

shall be given an opportunity to reply to such memorandum or 

communication.

    (C) Intervention--(1) Motion. A motion for leave to intervene in any 

proceeding conducted under these rules of practice must set forth the 

grounds for the proposed intervention, the position and interest of the 

movant and the likely impact that intervention will have on the 

expeditious progress of the proceeding. Any person already a party to 

the proceeding may file an answer to a motion to intervene, making 

specific reference to the factors set forth in the foregoing sentence 

and paragraph (b)(3)(ii)(C)(3) of this section, within ten (10) days 

after service of the motion for leave to intervene.

    (2) However, motions to intervene must be filed within 15 days from 

the date the notice of the Administrator's order is published in the 

Federal Register.

    (3) Disposition. Leave to intervene may be granted only if the 

movant demonstrates that (i) his presence in the proceeding would not 

unduly prolong or otherwise prejudice the adjudication of the rights of 

the original parties; (ii) the movant will be adversely affected by a 

final order; and (iii) the interests of the movant are not being 

adequately represented by the original parties. The intervenor shall 

become a full party to the proceeding upon the granting of leave to 

intervene.

    (4) Amicus curiae. Persons not parties to the proceeding who wish to 

file briefs may so move. The motion shall identify the interest of the 

applicant and shall state the reasons why the proposed amicus brief is 

desirable. If the motion is granted, the Presiding Officer or 

Administrator shall issue an order setting the time for filing such 

brief. An amicus curiae is eligible to participate in any briefing after 

his motion is granted, and shall be served with all briefs, reply 

briefs, motions, and orders relating to issues to be briefed.

    (D) Motions--(1) General. All motions, except those made orally on 

the record during a hearing, shall (i) be in writing; (ii) state the 

grounds therefore with particularity; (iii) set forth the relief or 

order sought; and (iv) be accompanied by any affidavit, certificate, 

other evidence, or legal memorandum relied upon. Such motions shall be 

served as provided by paragraph (b)(4) of this section.

    (2) Response to motions. A party's response to any written motion 

must be filed within ten (10) days after service of such motion, unless 

additional time is allowed for such response. The response shall be 

accompanied by any affidavit, certificate, other evidence, or legal 

memorandum relied upon. If no response is filed within the designated 

period, the parties may be deemed to have waived any objection to the 

granting of the motion. The Presiding Officer, Regional Administrator, 

or Administrator, as appropriate, may set a shorter time for response, 

or make such other orders concerning the disposition of motions as they 

deem appropriate.

    (3) Decision. The Administrator shall rule on all motions filed or 

made after service of the recommended decision upon the parties. The 

Presiding Officer shall rule on all other motions. Oral argument on 

motions will be permitted where the Presiding Officer, Regional 

Administrator, or the Administrator considers it necessary or desirable.

    (4) Record of proceedings. (i) The hearing shall be either 

stenographically reported verbatim or tape recorded, and thereupon 

transcribed by an official reporter designated by the Presiding Officer;

    (ii) All orders issued by the Presiding Officer, transcripts of 

testimony, written statements of position, stipulations, exhibits, 

motions, briefs, and other written material of any kind submitted in the 

hearing shall be a part of the record and shall be available for 

inspection or copying in the Office of the Hearing Clerk, upon payment 

of costs. Inquiries may be made at the Office of the Administrative Law 

Judges, Hearing Clerk, 1200 Pennsylvania Ave., NW., Washington, DC 

20460;

    (iii) Upon notice to all parties the Presiding Officer may authorize 

corrections to the transcript which involve matters of substance;



[[Page 307]]



    (iv) An original and two (2) copies of all written submissions to 

the hearing shall be filed with the Hearing Clerk;

    (v) A copy of each such submission shall be served by the person 

making the submission upon the Presiding Officer and each party of 

record. Service under this paragraph shall take place by mail or 

personal delivery;

    (vi) Every submission shall be accompanied by acknowledgement of 

service by the person served or proof of service in the form of a 

statement of the date, time, and manner of service and the names of the 

persons served, certified by the person who made service; and

    (vii) The Hearing Clerk shall maintain and furnish to any person 

upon request, a list containing the name, service address, and telephone 

number of all parties and their attorneys or duly authorized 

representatives.

    (5) Participation by a person not a party. A person who is not a 

party may, in the discretion of the Presiding Officer, be permitted to 

make a limited appearance by making an oral or written statement of his/

her position on the issues within such limits and on such conditions as 

may be fixed by the Presiding Officer, but he/she may not otherwise 

participate in the proceeding.

    (6) Rights of parties. (i) All parties to the proceeding may:

    (A) Appear by counsel or other representative in all hearing and 

prehearing proceedings;

    (B) Agree to stipulations of facts which shall be made a part of the 

record.

    (7) Recommended decision. (i) Within 30 days after the filing of 

proposed findings and conclusions and reply briefs, the Presiding 

Officer shall evaluate the record before him/her, the proposed findings 

and conclusions and any briefs filed by the parties, and shall prepare a 

recommended decision, and shall certify the entire record, including the 

recommended decision, to the Administrator.

    (ii) Copies of the recommended decision shall be served upon all 

parties.

    (iii) Within 20 days after the certification and filing of the 

record and recommended decision, all parties may file with the 

Administrator exceptions to the recommended decision and a supporting 

brief.

    (8) Decision by Administrator. (i) Within 60 days after 

certification of the record and filing of the Presiding Officer's 

recommended decision, the Administrator shall review the record before 

him and issue his own decision.

    (ii) If the Administrator concludes that the State has administered 

the program in conformity with the Act and this part, his decision shall 

constitute ``final agency action'' within the meaning of 5 U.S.C. 704.

    (iii) If the Administrator concludes that the State has not 

administered the program in conformity with the Act and regulations, he 

shall list the deficiencies in the program and provide the State a 

reasonable time, not to exceed 90 days, to take such appropriate 

corrective action as the Administrator determines necessary.

    (iv) Within the time prescribed by the Administrator the State shall 

take such appropriate corrective action as required by the Administrator 

and shall file with the Administrator and all parties a statement 

certified by the State Director that appropriate corrective action has 

been taken.

    (v) The Administrator may require a further showing in addition to 

the certified statement that corrective action has been taken.

    (vi) If the state fails to take appropriate corrective action and 

file a certified statement thereof within the time prescribed by the 

Administrator, the Administrator shall issue a supplementary order 

withdrawing approval of the State program. If the State takes 

appropriate corrective action, the Administrator shall issue a 

supplementary order stating that approval of authority is not withdrawn.

    (vii) The Administrator's supplementary order shall constitute final 

Agency action within the meaning of 5 U.S. 704.

    (d) Withdrawal of authorization under this section and the Act does 

not relieve any person from complying with the requirements of State 

law, nor does it affect the validity of actions taken by the State prior 

to withdrawal.



[53 FR 20776, June 1, 1988, as amended at 57 FR 5346, Feb. 13, 1992]



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