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4 22.4
<br />Appeals. Board may do all acts and take
<br />all measures as are necessary for the
<br />efficient, fair and impartial adjudica-
<br />tion of issues arising in a proceeding,
<br />including imposing procedural sanc-
<br />tions against a party who without ade-
<br />quate Justification fails or refuses to
<br />comply with these Consolidated Rules
<br />of Practice or with an order of the En-
<br />vironmental Appeals Board. Such sanc-
<br />tions may include drawing adverse in-
<br />ferences against a party, striking a
<br />party's pleadings or other submissions
<br />from the record, and denying any or all
<br />relief sought by the party in the pro-
<br />ceeding.
<br />(b) Regional Judicial Officer: Each Re-
<br />gional Administrator shall delegate to
<br />one or more Regional Judicial Officers
<br />authority to. act as Presiding -Officer in
<br />proceedings under.. subpart I of this
<br />part, and to act as Presiding Officer
<br />until-the respondent files an answer in
<br />proceedings under these Consolidated
<br />Rules of Practice to which subpart I of
<br />this part does not apply. The Regional
<br />Administrator may also delegate to
<br />one or more Regional Judicial Officers
<br />the authority to approve settlement of
<br />proceedings pursuant to §22.18(b)(3).
<br />These delegations will not prevent a
<br />Regional Judicial Officer from refer-
<br />ring any motion or case to the Re-
<br />gional Administrator. A Regional Judi-
<br />cial Officer shall be an attorney who is
<br />a permanent or temporary employee of
<br />the Agency or another Federal agency
<br />and who may perform other duties
<br />within the Agency. A Regional Judicial
<br />Officer shall not have performed pros-
<br />ecutorial or investigative functions in
<br />connection with any case in which he
<br />serves as a Regional Judicial Officer. A
<br />Regional Judicial Officer shall not
<br />knowingly preside over a case involv-
<br />ing any party concerning whom the Re-
<br />gional ' Judicial Officer performed any
<br />functions of prosecution or investiga-
<br />tion within the 2 years preceding the
<br />commencement of the case. A Regional
<br />Judicial Officer shall not prosecute en-
<br />forcement cases and .shall not be super-
<br />vised by any person who supervises the
<br />prosecution of enforcement cases, but
<br />may be supervised by the Regional
<br />Counsel.
<br />(c) Presiding Officer. The Presiding Of-
<br />ficer shall conduct a fair and impartial
<br />proceeding, assure that the facts are
<br />40 CFR Ch..1 (7-1-05 Edition)
<br />fully elicited, adjudicate all issues, and
<br />avoid delay. The Presiding Officer may:
<br />(1) Conduct administrative hearings
<br />under .these Consolidated Rules of
<br />Practice;
<br />(2) Rule upon motions, requests, and
<br />offers of proof, and issue all necessary
<br />orders;
<br />(3) Administer oaths and affirmations
<br />and take affidavits;
<br />(4) Examine witnesses and receive
<br />documentary or other evidence;
<br />(5)- Order a party, or an officer or
<br />agent thereof, to produce testimony,
<br />documents, or other non-privileged.evi-
<br />dence; and failing the production-there-
<br />of without good cause being shown,
<br />draw adverse inferences against that
<br />party;
<br />(6) Admit or exclude evidence;
<br />(7) Hear and decide questions of facts,
<br />law, or discretion;
<br />(8) Require parties to attend con-
<br />ferences for the settlement or sim-
<br />plification. of the issues, or the expedi-
<br />tion of the proceedings;.
<br />(9) Issue subpoenas authorized by the
<br />Act; and
<br />(10) Do all other acts and take all
<br />measures necessary for the mainte-
<br />nance of order and for the efficient, fair
<br />and impartial adjudication of issues
<br />arising in proceedings. governed by
<br />these Consolidated Rules of Practice.
<br />(d) Disqualification, withdrawal and re-
<br />assignment. (1) The Administrator, the
<br />Regional Administrator, the members
<br />of the Environmental Appeals Board,
<br />the Regional Judicial Officer, or the
<br />Administrative Law Judge may not
<br />perform functions provided for in these
<br />Consolidated Rules of Practice regard,
<br />ing any matter in which they have a fi-
<br />nancial interest or have any relation-
<br />ship with a party or with the subject
<br />matter which would make it inappro-
<br />priate for them to act. Any party may
<br />at any time by motion to the Adminia-
<br />trator, Regional Administrator, a
<br />member of the Environmental Appeals
<br />Board, the Regional Judicial Officer or
<br />the Administrative Law Judge request
<br />that he or .she disqualify himself or
<br />herself from the proceeding. If such a
<br />motion to disqualify the Regional Ad-
<br />ministrator, Regional Judicial Officer
<br />or Administrative Law Judge is denied,
<br />a party may appeal that ruling to the
<br />nAA
<br />Environmental Protection Agency
<br />Environmental Appeals Board. If a mo-
<br />tion to disqualify a member of the En-
<br />vironmental Appeals Board is denied, a
<br />party may appeal that ruling to the
<br />Administrator. There shall be no inter-
<br />locutory appeal of the ruling on a mo-
<br />tion for disqualification. The Adminis-
<br />trator, . the Regional Administrator, a
<br />member of the Environmental Appeals
<br />Board, the Regional Judicial Officer, or
<br />the Administrative Law Judge may at
<br />any time withdraw from any pro-
<br />ceeding in which he deems himself dis-
<br />qualified or unable to act for any rea=
<br />son.
<br />(2) If the Administrator, the Regional
<br />Administrator, the Regional Judicial
<br />Officer, or the Administrative Law
<br />Judge is disqualified or withdraws from
<br />the proceeding, a qualified Individual
<br />who has none of the infirmities listed
<br />in paragraph (d)(1) of this section shall
<br />be. assigned as a replacement. The Ad-
<br />ministrator shall assign a replacement
<br />for a. Regional Administrator who
<br />withdraws or is disqualified. Should
<br />the Administrator withdraw or be dis-
<br />qualified, the Regional Administrator
<br />from the Region where the case origi-
<br />nated shall replace the Administrator.
<br />If that Regional Administrator would
<br />be disqualified, the Administrator shall
<br />assign a. Regional Administrator from
<br />another Region to replace the Adminis-
<br />trator. The Regional Administrator
<br />shall assign a new Regional Judicial
<br />Officer if the original Regional Judicial
<br />Officer withdraws or is disqualified.
<br />.The Chief Administrative Law Judge
<br />shall assign a new Administrative Law
<br />Judge if the original Administrative
<br />Law Judge withdraws or is disqualified.
<br />(3) The Chief Administrative. Law
<br />Judge, at any stage in.the proceeding,
<br />may reassign the case to an Adminis-
<br />trative Law Judge other than the one
<br />originally- assigned in the event of the
<br />unavailability of the Administrative
<br />Law Judge or where reassignment will
<br />result in efficiency in the scheduling of
<br />hearings and would not prejudice the
<br />parties.
<br />§,22.5 Filing, service, and form of all
<br />filed documents; business confiden-
<br />tiality claims.'
<br />(a) Filing of documents. (1) The origi-
<br />nal and one copy of each document in-
<br />tended to be part of the record shall be
<br />§ 22.5
<br />filed with the Regional Hearing Clerk
<br />when the proceeding is before the Pre-
<br />siding Officer, or filed with the Clerk of
<br />the Board when the proceeding is be-
<br />fore the Environmental Appeals Board.
<br />A document is filed when it is received
<br />by the appropriate Clerk. Documents
<br />filed in proceedings before the Environ-
<br />mental Appeals Board shall either be
<br />sent by U.S. mail (except by U.S. Ex-
<br />press Mail) to the official mailing ad-
<br />dress of the Clerk of the Board set
<br />forth. at §22.3-or delivered by, hand or
<br />courier (including deliveries by U.S.
<br />Postal Express or by a commercial de-
<br />livery service) to Suite 600, 1341 G
<br />Street, NW., Washington, DC 20005. The
<br />Presiding Officer or, the Environmental
<br />Appeals Board may by order authorize
<br />facsimile or electronic filing, subject
<br />to any appropriate conditions and limi-
<br />tations.
<br />(2) When the Presiding Officer cor-
<br />responds directly with the parties, the
<br />original of the correspondence shall be
<br />filed with the Regional Hearing Clerk.
<br />Parties who correspond directly with
<br />the Presiding Officer shall file a copy
<br />of the .correspondence with the Re-
<br />gional Hearing Clerk.
<br />(3) A certificate of service shall ac-
<br />company each document filed or served
<br />in the proceeding.
<br />(b) Service of documents. A copy of
<br />each document filed in the proceeding
<br />shall be served on the Presiding Officer
<br />or the Environmental Appeals Board,
<br />and on each party.
<br />(1) Servige of complaint. (i) Complain-
<br />ant shall serve on respondent, or a rep-
<br />resentative authorized to receive serv-
<br />ice on respondent's behalf, a copy of
<br />the signed original of the complaint,
<br />together with a copy of these Consoli.
<br />dated Rules of Practice. Service shall
<br />be made personally; by. certified mail
<br />with return receipt requested, or by
<br />any reliable commercial delivery sere
<br />ice that provides written verificatior
<br />of delivery.
<br />(if)(A) Where respondent is a 110mes-
<br />tic or foreign corporation, a partner
<br />ship, or an unincorporated association
<br />which is subject to suit under a com
<br />mon name, complainant shall serve az
<br />officer, partner, a managing or genera
<br />agent, or any other person authorize(
<br />by appointment or by Federal or Stato
<br />law to receive service of process.
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