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§ 22.16
<br />(b) Contents of the answer. The answer
<br />shall clearly and directly admit, deny
<br />or explain each of the factual allega-
<br />tions contained in the complaint with
<br />regard to which respondent has any
<br />knowledge. Where respondent has no
<br />knowledge of a particular factual alle-
<br />gation and so states, the allegation is
<br />deemed denied. The answer shall also
<br />state: The circumstances or arguments
<br />which are alleged to constitute the
<br />grounds of any defense; the facts which
<br />respondent disputes; the basis for op-
<br />posing any proposed relief; and whether
<br />a hearing is requested.
<br />(c) Request for a hearing. A hearing
<br />upon the issues raised by the complaint
<br />and answer may be held if requested by
<br />respondent in its answer. If the re-
<br />spondent .does not request a hearing,
<br />the Presiding Officer may hold a hear-
<br />ing if issues appropriate for adjudica-
<br />tion are raised in the answer.
<br />(d) Failure to admit, -deny, or explain.
<br />Failure of respondent to admit, deny,
<br />or explain any material factual al-lega=
<br />tion contained in the complaint con-
<br />stitutes an admission. of the allegation.
<br />(e) Amendment of the answer. The re-
<br />spondent may amend the answer to the
<br />complaint upon motion .granted by the
<br />Presiding Officer.
<br />40 CFR Ch. 1 (7-1-05 Edition)
<br />raised in the response. The Presiding
<br />Officer or the Environmental Appeals
<br />Board may set a shorter or longer time
<br />for response or reply, or make other or-
<br />ders concerning the disposition of mo-
<br />tions. The response or reply shall be
<br />accompanied by any affidavit, certifi-
<br />cate, other evidence, or legal memo-
<br />randum relied upon. Any party who
<br />fails to respond within the designated
<br />period waives any. objection to the
<br />granting of the motion.
<br />(c) Decision. The Regional Judicial
<br />Officer (or in a proceeding commenced
<br />at EPA Headquarters, the Environ-
<br />mental Appeals Board) shall rule on. all
<br />motions filed or made before an answer
<br />to the complaint is filed. Except as pro-
<br />vided in §§22.29(c) and 22.51, an Admin-
<br />istrative Law Judge shall rule on all
<br />motions filed or made after an answer
<br />is filed and before an initial decision
<br />has become final or has been appealed.
<br />The Environmental Appeals Board
<br />shall rule as provided iii. § 22.29(c) and
<br />on all motions filed or made after an
<br />appeal of the initial decision is filed,
<br />except as provided pursuant to § 22.28.
<br />(d) Oral argument. The Presiding Offi-
<br />cer or . the Environmental Appeals
<br />Board may permit oral argument on
<br />motions in its discretion.
<br />§ 22.16 Motions.
<br />(a) General. Motions shall be served
<br />as. provided by § 22.5(b)(2). Upon the fil-
<br />ing of a motion, other parties may file
<br />responses to the motion and the mov-
<br />ant may file a reply to the -response.
<br />Any additional responsive _ documents
<br />shall be permitted only by order of the
<br />Presiding Officer or Environmental Ap-
<br />peals Board, as appropriate. All mo-
<br />tions, except those made orally on the
<br />record during a hearing, shall:
<br />(1) Be in writing;
<br />(2) State the grounds therefor, with
<br />particularity;
<br />(3) Set forth the relief sought; and
<br />(4) Be accompanied by any affidavit,
<br />certificate, other- evidence or legal
<br />memorandum relied upon.
<br />(b) Response to motions. A party's re-
<br />sponse to any written motion must be
<br />filed within 16-days after service of
<br />such motion. The movant's reply to
<br />any written response must be filed
<br />within 10 days after service of such re-
<br />eponse and shall be limited to issues
<br />§ 22.17 Default. `
<br />(a) Default. A party may be found to
<br />be in default: after motion, upon fail-
<br />ure to file a timely answer -to the com-
<br />plaint; upon failure to comply with the
<br />information exchange requirements of
<br />§22.19(a) or an order of the Presiding
<br />Officer; or upon failure to appear at, a
<br />conference or hearing. Default by re-
<br />spondent constitutes, for purposes of.
<br />the pending proceeding only, an admis-
<br />sion of all facts alleged in the com-
<br />plaint and a waiver of respondent's
<br />right to contest such factual allega-
<br />tions. Default by complainant con-
<br />stitutes a waiver of complainant's
<br />right to proceed on the merits of the
<br />action, and shall result in the dismissal
<br />of the complaint with prejudice.
<br />(b) Motion for default. A motion for
<br />default may seek resolution of all or
<br />part of the proceeding. Where the mo-
<br />tion requests the assessment of a pen-
<br />alty or the imposition of other relief
<br />against a defaulting party, the movant
<br />must specify the penalty or other relief
<br />Environmental Protection Agency
<br />sought and state the legal and factual
<br />grounds for the relief requested.
<br />(c) Default order. When the Presiding
<br />Officer finds that default has-occurred,
<br />he shall issue a default order against
<br />the defaulting party as to any or all
<br />parts of the proceeding unless the
<br />record shows good cause why a default
<br />order should not be issued. If the order
<br />resolves all outstanding issues and
<br />claims in the proceeding, it shall con-
<br />stitute the initial decision under these
<br />Consolidated Rules of Practice. The re-
<br />lief proposed in the complaint or the
<br />motion for default shall. be ordered un-
<br />less the requested relief is clearly in-
<br />consistent with the record of the pro-
<br />ceeding or the . Act. For good cause
<br />shown, the Presiding Officer may set
<br />aside a default order.
<br />(d) Payment of penalty; effective date of
<br />compliance or corrective action . orders,
<br />and' Permit Actions. Any penalty as-
<br />sessed in the default order shall be-
<br />come due and payable by respondent
<br />without further proceedings 30 days.
<br />after the default order becomes final
<br />under 522.27(c). Any default order re-
<br />quiring compliance or corrective ac-
<br />tion shall be effective and enforceable
<br />without further proceedings on the
<br />date the default order, becomes final
<br />under §22.27(c). Any Permit Action or-
<br />dered in the default order shall become
<br />effective without further proceedings
<br />on the date that the default order be-
<br />comes final under § 22.27(c).
<br />§ 22.18 Quick resolution; settlement;
<br />alternative dispute resolution.
<br />(a) Quick resolution. (1) A respondent
<br />may resolve the proceeding at any time
<br />by paying the specific penalty proposed
<br />in the complaint or in complainant's.
<br />prehearing exchange in full as specified
<br />by complainant and by filing with the
<br />Regional Hearing Clerk a copy of the
<br />check or other instrument of payment.
<br />If the. complaint contains a specific
<br />proposed penalty. and respondent pays
<br />that proposed penalty in full within 30
<br />days after _ receiving the complaint,
<br />then no answer need be filed. This
<br />paragraph (a) shall not apply to any
<br />complaint which seeks a compliance or
<br />corrective action order or Permit Ac-
<br />tion. In a proceeding subject to the
<br />public comment provisions of §22.45,
<br />this quick resolution is not available
<br />§ 22.18
<br />until 10 days after the close of the com-
<br />ment period.
<br />(2) Any respondent who wishes to re-
<br />solve a proceeding by paying the pro-
<br />posed penalty instead of filing an an-
<br />swer, but who needs additional time to
<br />pay the penalty, may file a written
<br />statement with the Regional Hearing
<br />Clerk within 30. days after receiving the
<br />complaint stating that the respondent
<br />agrees to pay the proposed penalty ,in
<br />accordance with paragraph (a)(1) of
<br />this section. The written statement
<br />need not contain any.response to, or
<br />admission of, the allegations in the
<br />complaint. Within 60 days after receiv-
<br />ing the complaint, the respondent shall
<br />pay the full amount of the proposed,
<br />penalty. Failure to make such payment
<br />within 60 days of receipt of -the com-
<br />plaint..may subject the respondent to
<br />default pursuant to §22.17.
<br />(3) Upon receipt of payment in full,
<br />the Regional Judicial Officer or Re-
<br />dministra tor, or, in a pro-
<br />gional Administrator,*
<br />ceeding commenced . at EPA Head-
<br />quarters, the Environmental Appeals.
<br />Board, shall issue a final order. Pay-
<br />ment by respondent shall constitute a
<br />waiver of respondent's rights to con-
<br />test the allegations and to appeal the
<br />final order.
<br />(b) Settlement. (1) The Agency encour-
<br />ages settlement of a proceeding at any
<br />time if the settlement is consistent
<br />with the provisions and objectives of
<br />the Act and applicable regulations. The
<br />parties may engage in settlement dis-
<br />cussions whether or not the respondent
<br />requests a hearing. Settlement discus-
<br />sions shall not affect the respondent's
<br />obligation to file a' timely answer
<br />under § 22.15.
<br />(2) Consent agreement. Any and all
<br />terms and conditions of a settlement
<br />shall be recorded in. a written consent
<br />agreement signed by all parties . or
<br />their representatives. The consent
<br />agreement shall state that, for the pur-
<br />pose of the proceeding, respondent: Ad-
<br />mits the jurisdictional allegations of
<br />the complaint; admits the facts stipu-
<br />lated in the consent agreement or nei-
<br />ther admits nor denies specific factual
<br />allegations contained in the complaint-,
<br />consents to the assessment of any stat-
<br />ed civil penalty, to the issuance of any
<br />specified compliance or corrective ac-
<br />tion order, to any conditions specifies.
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