2008-08-28_ENFORCEMENT - M1983194

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§ 27.9 such person. Any ex parte memorandum or other communication addressed to the Administrator, the. Regional Ad- ministrator, the Environmental Ap- peals board, or the Presiding Officer during the pendency of. the proceeding and relating to the merits thereof, by or on behalf of any party shall be re- garded as argument made in the pro- ceeding and shall be served upon all other parties.. The other parties shall be given an opportunity to reply to such memorandum or communication. The requirements of this section shall not apply to any person who has for- mally. recused himself from all adju- dicatory functions in a proceeding,.or who issues final orders only pursuant to §22.18(b)(3). §22.9 Examination of documents filed. (a) Subject to the. provisions of law restricting- the public disclosure of con- fidential information; any person may, during Agency business hours inspect and copy any -document filed in any proceeding. Such documents shall be made available by the Regional Hear- ing Clerk, the Hearing Clerk, or the Clerk of the Board, as appropriate. (b) The cost of duplicating documents shall be borne by the person seeking copies of such documents. The Agency may waive this cost in its discretion. Subpart B-Parties and . Appearances §22.10 Appearances. Any party may appear in person or by counsel or other representative. A partner may appear on behalf of a part- nership and an officer may appear on behalf of a corporation. Persons who appear as counsel or other representa- tive must conform to the standards of conduct and ethics required of practi- tioners before the courts of the United States. 022.11 Intervention and non-party briefs. (a) Intervention. Any person desiring to become a party to a proceeding may move for leave to. intervene. A motion for leave to intervene that is filed after the exchange of information pursuant to §22.19(a) shall not be granted unless the movant shows good cause for its 40 CFR Ch. l (7-1-05 Edition) failure to file before such exchange of information. All requirements of these Consolidated Rules of Practice shall apply to a motion for leave to inter- vene as if the movant were a party. The Presiding Officer shall grant leave to intervene in all or part of the pro- ceeding if: the movant claims an inter- est relating. to the cause of action; a final order may as a practical matter impair the movant's ability to protect that interest; and the movant's inter- est is not adequately represented by existing parties. The intervenor shall be bound by any agreements; arrange- ments and other matters previously made in the proceeding unless other- wise ordered by the Presiding Officer or the Environmental Appeals Board for good cause. (b) Non-party briefs. Any person who is not a party to a proceeding may move for leave to file a non-party brief. The motion shall identify the interest of the applicant and shall explain the relevance of the brief to the pro- ceeding. All requirements of these Con- solidated Rules of Practice shall.apply to the motion as if the movant were a party. If the motion is granted, the Presiding Officer or Environmental Ap- peals Board shall issue an order setting the time for filing such brief. Any party to the proceeding may file a re- sponse to a non-party brief within 16 days after service of the non-party brief. § 22.12 Consolidation and severance. (a) Consolidation. The Presiding Offi- cer or the Environmental Appeals Board may consolidate any or all mat- ters at issue in two ' or more pro- ceedings subject to these Consolidated Rules of Practice where: there exist common parties or common. questions of fact or law;: consolidation would ex- pedite and simplify consideration of the issues; and consolidation would not adversely affect the rights of parties engaged in otherwise separate pro- ceedings. Proceedings subject to sub- part I of this part may be consolidated only upon the approval of all parties. Where a proceeding subject to the pro- visions of subpart I of this part is con- solidated, with a proceeding.to which subpart I of this part does not apply, the procedures of subpart I of this part n1lo Environmental Protection Agency shall not apply to the consolidated pro- ceeding. (b) Severance. The Presiding Officer or the Environmental Appeals Board may, for good cause; order any pro- ceedings severed with respect to any or all parties or issues. Subpart C-Prehearing Procedures § 22.13 Commencement of a pro- ceeding. (a) Any proceeding subject to these Consolidated Rules of Practice is com- menced by filing with the Regional Hearing Clerk a complaint conforming to § 22.14. (b) Notwithstanding paragraph (a) of this section, where the parties agree to settlement of one or more causes of ac- tion before the filing of a complaint, a proceeding may be simultaneously ,commenced. and concluded by the issuance of a consent agreement and final order pursuant to §22.18(b)(2) and (3). §22.14 Complaint. (a) Content of _ complaint. Each com- plaint shall include: . (1) A statement reciting the sec- tion(s) of the Act authorizing the issuance of the complaint; (2) Specific reference to each provi- sion of the Act, implementing regula- tions, permit or order which respond- ent is alleged to have violated; (3) A concise statement of the factual basis for each violation alleged; (4) A description of all relief sought, including one or more of the following: (1) The amount of the civil penalty which is proposed to be assessed, and a brief explanation of the proposed pen- al ty; (it) Where a specific penalty demand is not made, the number- of violations (where applicable, days of violation) for which a penalty is sought, a brief explanation of the severity of each vio- lation alleged and a recitation of the statutory penalty authority applicable for. each violation alleged in the com- plaint; (iii) A request for a Permit Action and a statement of its proposed terms and conditions; or § 22.15 (iv) A request' for a. compliance or corrective action order and a state- ment of the terms and conditions thereof; (5) Notice of respondent's right to re-. quest a hearing on any material fact alleged in the complaint, or on the ap- propriateness of any proposed penalty, compliance or corrective action order, or Permit Action; (6) Notice if subpart I of this part ap- plies to the proceeding; (7) The address of the Regional Hear- ing Clerk; and (8) Instructions for paying penalties, if applicable. (b) Rules of practice. A copy of these Consolidated. Rules of Practice shall accompany each complaint served. (c) Amendment of the complaint. The complainant may amend the complaint once as a matter of right at any time before the answer Is filed. Otherwise the complainant may amend the com- plaint* only upon motion granted by the Presiding Officer. Respondent shall have 20 additional days from the date of service of the amended complaint tc file its answer. (d) Withdrawal of the complaint. The complainant may withdraw the com- plaint, or any part thereof, without prejudice one time before the answer has been filed. After one withdrawa: before the filing of an answer, or after the filing of an answer, the complain ant may withdraw the complaint, of any part thereof, without prejudice only upon motion granted-by the Pre siding Officer. § 22.15. Answer to the complaint. (a) General. Where respondent: Con tests any material fact upon which tht complaint is based; contends that th proposed penalty, compliance or cor rective. action order, or Permit Action as the case may be, is inappropriate; o contends that it is entitled to judg ment as a matter of law, it shall file ai original and one copy of a written an swer to the complaint with the. Re gional Hearing Clerk and shall serv copies of the answer on all other par ties. Any such answer to the complain must be filed with 'the Regional Hear ing Clerk within 30 days after servic of the complaint. QA O