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§ 22.19
<br />in the consent agreement, and to any
<br />stated Permit Action; and waives any
<br />right to contest the allegations and its
<br />right to appeal the proposed final order
<br />accompanying the consent agreement.
<br />Where complainant elects to com-
<br />mence a proceeding pursuant to
<br />§22.13(b), the consent agreement shall
<br />also contain the elements described at
<br />§ 22.14(a)(1)-(3) and (8). The parties shall
<br />forward the executed consent agree-
<br />rnent and "a proposed final order to the
<br />Regional Judicial Officer or Regional
<br />Administrator, or, in a proceeding
<br />commenced at EPA Headquarters, the
<br />Environmental Appeals Board.
<br />(3) Conclusion of proceeding. No settle-
<br />ment or consent agreement shall dis-
<br />pose of any proceeding under these
<br />Consolidated Rules of Practice without
<br />a final- order from the Regional Judi-
<br />cial Officer or Regional Administrator,
<br />or, in a proceeding commenced at EPA'
<br />Headquarters, the Environmental Ap-
<br />peals Board, ratifying the parties' con-
<br />sent agreement.
<br />(c) Scope of resolution or settlement.
<br />Full payment of the penalty proposed
<br />in a complaint pursuant to paragraph
<br />(a) of this section or settlement pursu-
<br />ant to paragraph (b) of this section
<br />shall not in any case affect the right of
<br />the Agency or the United States to
<br />pursue appropriate injunctive or other
<br />equitable relief or criminal sanctions
<br />for any violations of law. Full payment
<br />of the penalty proposed in a complaint
<br />pursuant to paragraph (a) of this sec-
<br />tion or settlement pursuant to para-
<br />graph (b) of this section shall only re-
<br />solve respondent's liability for Federal
<br />civil penalties for the violations and
<br />facts alleged in the complaint.
<br />(d) Alternative means of dispute resolu-
<br />tion. (1) The parties may engage in any
<br />process within the scope of the Alter-
<br />native Dispute Resolution Act
<br />("ADRA"), 5 U.S.C. 581 et seq., which
<br />may facilitate voluntary settlement ef-
<br />forts. Such process shall be subject to
<br />the confidentiality provisions of the
<br />ADRA..
<br />(2) Dispute resolution under this
<br />paragraph (d), does not divest the Pre
<br />siding Officer of jurisdiction and does
<br />not automatically stay the proceeding.
<br />All provisions of these Consolidated
<br />Rules of Practice remain in effect not-
<br />40 CFR Ch. 1 (7-1-05 Edition)
<br />withstanding any dispute resolution
<br />proceeding.
<br />(3) The parties may choose any per-
<br />son to act as a neutral, or may move
<br />for the appointment of a neutral. If the
<br />Presiding Officer grants a motion for
<br />the appointment of a neutral, the Pre-
<br />siding Officer shall forward the motion
<br />to the Chief Administrative Law
<br />Judge, except in proceedings under sub-
<br />part I of this part, in which the Pre-
<br />siding Officer shall forward the motion
<br />to the Regional Administrator. The
<br />Chief Administrative Law Judge.or Re-
<br />gional Administrator, as appropriate,
<br />shall designate a qualified neutral.
<br />§22.19 Prehearing information ex-
<br />change; ; prehearing conference;
<br />other discovery.
<br />(a) Prehearing information exchange.
<br />(1) In accordance with an order issued
<br />by the Presiding Officer, each party
<br />shall file a prehearing information ex-
<br />change. Except as provided in §22.22(a),
<br />a document or, exhibit that has not
<br />been included- in prehearing informa-
<br />tion exchange shall not be admitted
<br />into-evidence, and any witness whose
<br />name and testimony summary has not
<br />been included in prehearing informa-
<br />tion exchange shall not be allowed to
<br />testify. Parties are not required to ex-
<br />change information relating to settle-
<br />ment which would be excluded in the
<br />federal.courts under Rule 408 of the
<br />Federal Rules of Evidence. Documents.
<br />and exhibits shall be marked for identi-
<br />fication as ordered by the Presiding Of-
<br />ficer.
<br />(2) Each party's prehearing informa-
<br />tion exchange shall contain: .
<br />(i) The names of any expert or other
<br />witnesses it intends to call at the hear-
<br />ing, together with a brief narrative
<br />summary of their expected testimony,
<br />or a statement that no witnesses will
<br />be called; and (ii) Copies of all docu-
<br />ments and exhibits which it intends to
<br />introduce into evidence at the hearing.
<br />(3) If the proceeding is for the assess-
<br />ment of'a penalty and complainant has
<br />already specified a proposed ..penalty,
<br />complainant shall explain in its pre-
<br />hearing information exchange how the
<br />proposed penalty was calculated in ac-
<br />cordance with any criteria set forth in
<br />Environmental Protection Agency
<br />the Act, and the respondent shall ex-
<br />..plain in its prehearing information ex-
<br />change . why the proposed penalty
<br />should be reduced or eliminated.
<br />(4) If the proceeding is for the assess-
<br />ment of a penalty and complainant has
<br />not specified a proposed penalty, each
<br />party shall include in its prehearing in-
<br />formation exchange all factual infor-
<br />mation it considers relevant to the as-
<br />sessment of a penalty. Within 15 days
<br />after respondent files its prehearing in-
<br />formation exchange, complainant shall
<br />file a document specifying a proposed
<br />penalty and explaining how the pro-
<br />posed penalty was calculated in accord-
<br />ance with any criteria set forth in the
<br />Act.
<br />(b) Prehearing conference. The Pre-
<br />siding Officer, at any time before the
<br />hearing begins, may direct the parties
<br />and their counsel or other representa-
<br />tives to participate in a conference to
<br />consider:
<br />(1) Settlement of the case;
<br />(2) Simplification of issues and stipu-
<br />lation of facts not in dispute;
<br />(3) The necessity . or desirability of
<br />amendments to pleadings;
<br />(4) The exchange of exhibits, docu-
<br />ments, prepared testimony, and admis-
<br />sions or stipulations of fact which will
<br />avoid unnecessary proof;
<br />(5) The limitation of the number of
<br />j expert or other witnesses;
<br />I (6) The time and place for the hear-
<br />ing; and
<br />(7) Any other matters which may ex-
<br />pedite the disposition of the pro-
<br />ceeding.
<br />(c) Record of the prehearing conference.
<br />No transcript of a prehearing con-
<br />ference relating to settlement shall be
<br />made. With respect to other prehearing
<br />conferences, no transcript of any pre-
<br />hearing conferences shall be made un-
<br />less ordered by the Presiding Officer.
<br />The Presiding Officer shall ensure that
<br />the record of the proceeding includes
<br />any stipulations, agreements, rulings
<br />or orders made during the conference.
<br />(d) Location of prehearing conference.
<br />The prehearing conference shall be
<br />held in the. county where the. respond-
<br />ent resides or conducts the business
<br />which the.hearing concerns, in.the city
<br />in which the relevant Environmental
<br />f Protection Agency Regional Office is
<br />f. located, or in Washington, DC, unless
<br />§ 22.19
<br />the Presiding officer determines that
<br />there is good cause to hold it at an-
<br />other location or by telephone..
<br />(e) Other discovery. (1) After the infor-
<br />mation exchange provided for in para-
<br />graph (a) of this section, a'party may
<br />move for additional discovery. The mo-
<br />tion shall specify the method of dis-
<br />covery sought, provide the proposed
<br />discovery instruments, and describe in
<br />detail the nature of the information
<br />and/or documents sought (and, where
<br />relevant, the proposed time and place
<br />where discovery would be conducted).
<br />The Presiding Officer may order such
<br />other discovery only if it:
<br />(ij Will neither unreasonably delay
<br />the proceeding nor unreasonably bur-
<br />den the non-moving party;
<br />(ii) Seeks information that is most
<br />reasonably obtained from the non-mov-
<br />ing party, and which the non-moving
<br />party has refused to provide volun-
<br />tarily; and
<br />(iii) Seeks information that has sig-
<br />nificant probative value on a disputed
<br />issue of. material fact relevant to li-
<br />ability or the relief sought.
<br />(2) Settlement. positions and informa-
<br />tion regarding their development (such
<br />as penalty calculations for purposes of
<br />settlement based upon Agency settle-
<br />ment policies) shall not be discover-
<br />able.
<br />(3) The Presiding Officer may order
<br />depositions upon oral questions only it
<br />accordance with paragraph (e)(1) of thi:
<br />section and upon an additional findinE
<br />that:
<br />(i) The information sought cannot
<br />reasonably be obtained by alternativ(
<br />methods of discovery; or
<br />(11) There is a. substantial reason tc
<br />believe that relevant and probative evi
<br />dence may otherwise not be preserve(
<br />for presentation by a witness at the
<br />hearing.
<br />(4) The Presiding Officer may requir,
<br />the attendance of witnesses or the pro
<br />duction of documentary evidence b;
<br />subpoena, if authorized under the Act
<br />The Presiding Officer may issue a sub
<br />.poena for discovery purposes only i;
<br />accordance with paragraph (e)(1) of thi
<br />section and upon an additional showin
<br />of the grounds and necessity therefo)
<br />Subpoenas shall be served in accort
<br />ante with §22.5(b)(1). Witnesses Burr
<br />moned before the Presiding Office
<br />nco
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