[Code of Federal Regulations]
[Title 40, Volume 27]
[Revised as of July 1, 2007]
From the U.S. Government Printing Office via GPO Access
[CITE: 40CFR304.33]

[Page 346-347]
 
                   TITLE 40--PROTECTION OF ENVIRONMENT
 
         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
 
PART 304_ARBITRATION PROCEDURES FOR SMALL SUPERFUND COST RECOVERY CLAIMS--
 
                Subpart C_Hearings Before the Arbitrator
 
Sec.  304.33  Arbitral decision and public comment.

    (a) The Arbitrator shall render a proposed decision within forty-
five days after the hearing is closed, or within forty-five days after 
the pre-hearing conference if no hearing is held, unless the parties 
have settled the dispute prior to the rendering of the proposed 
decision.
    (b)(1) The proposed decision shall be in writing and shall be signed 
by the Arbitrator. It shall be limited in accordance with the 
Arbitrator's jurisdiction as defined by Sec.  304.20 of this part, and 
shall, if such issues have been jointly submitted by the parties for 
resolution, contain the Arbitrator's determination of:
    (i) Which participating PRPs, if any, are liable pursuant to section 
107(a) of CERCLA, 42 U.S.C. 9607(a);
    (ii) The dollar amount of response costs, if any, to be awarded to 
EPA; and
    (iii) The allocation of responsibility for payment of EPA's award, 
if any, among the participating PRPs.
    (2) The proposed decision shall also assess arbitration fees and 
expenses (see Sec.  304.41 of this part) in favor of any party, or 
combination of parties, and, in the event any administrative fees or 
expenses are due the Association, in favor of the Association.
    (c) If the parties settle their dispute during the course of the 
proceeding, the Arbitrator may, upon the parties' request, set forth in 
the terms of the

[[Page 347]]

agreed settlement in a proposed decision. Except as provided in Sec.  
304.20(b) of this part, a proposed decision which embodies an agreed 
settlement shall be subject to all applicable provisions of this part, 
including, but not limited to, paragraph (e) of this section and Sec.  
304.40 of this part.
    (d) The parties shall accept as legal delivery of the proposed 
decision the placing in the United States mail of a true copy of the 
proposed decision, sent by certified mail, return receipt requested, 
addressed to each party's last known address or each party's attorney's 
last known address, or by personal service.
    (e)(1) Pursuant to section 122(i) of CERCLA, 42 U.S.C. 9622(i), 
notice of the proposed decision shall be published promptly by EPA in 
the Federal Register. Such notice shall include the name and location of 
the facility concerned, the names of the parties to the proceeding, and 
a brief summary of the proposed decision, and shall provide persons who 
are not parties to the proceeding a thirty-day period in which to file 
written comments relating to the proposed decision. Any filed comments 
shall be made available to the participating PRPs and to the public. The 
participating PRPs shall have ten days from the close of the public 
comment period in which to submit to EPA in writing their views on the 
merits of any comments filed. EPA shall consider any comments filed, and 
shall, within thirty days after the close of the ten-day period during 
which the participating PRPs may submit their views on any comments 
filed, provide written notice to the Arbitrator and the participating 
PRPs. The written notice shall be made available to the public and shall 
include:
    (i) A summary of any comments filed;
    (ii) Responses to any comments filed;
    (iii) A discussion of whether any comments filed disclose to EPA 
facts or considerations which indicate the proposed decision is 
inappropriate, improper or inadequate; and
    (iv) EPA's determination as to whether modification of the proposed 
decision or withdrawal from the arbitral proceeding is necessary based 
upon such comments.
    (2) If EPA's written notice does not state that modification or 
withdrawal is necessary based upon public comments, then the proposed 
decision shall become final thirty days after the date of issuance of 
EPA's written notice. If EPA's written notice states that modification 
or withdrawal is necessary, the parties shall have thirty days from the 
date of issuance of EPA's written notice to modify the proposed decision 
so that it is no longer inappropriate, improper or inadequate and to set 
forth the proposed decision, as modified, in an agreed settlement. If an 
agreed settlement is reached, such agreed settlement shall be the final 
decision. If the parties do not modify the proposed decision in an 
agreed settlement within thirty days, the proposed decision shall be 
null and void and of no legal effect, EPA shall withdraw from the 
proceeding, and the Arbitrator shall assess such administrative fees and 
expenses (see Sec.  304.41 of this part) against the parties as the 
Arbitrator deems appropriate.
    (f) Payment of EPA's award, if any, and any fees or expenses due 
pursuant to the final decision, shall be made within thirty days after 
the date of the final decision.
    (g) The Arbitrator shall, upon written request of any party, furnish 
to such party certified facsimiles of all papers in the Arbitrator's 
possession that may be required in judicial proceedings relating to the 
arbitration pursuant to Sec.  304.40 of this part.