§ 22.20
<br />shall be paid the same fees and mileage
<br />that are paid witnesses in the courts of
<br />the United States. Any fees shall be
<br />paid by the party at whose request the
<br />witness appears. Where a witness ap-
<br />pears pursuant to a request initiated
<br />by the .Presiding Officer, fees -shall be
<br />paid by the Agency.
<br />(5) Nothing in this paragraph (e) shall
<br />limit a party's right to request admis-
<br />sions or stipulations, a respondent's
<br />right to request Agency records under
<br />the Federal Freedom of Information
<br />Act, 5 U.S.C. 652, or EPA's. authority
<br />under any applicable law to. conduct in-
<br />spections, issue information request
<br />letters or administrative subpoenas, or .
<br />otherwise obtain information.
<br />(f) Supplementing prior exchanges. A
<br />party who has made an information ex-
<br />change under paragraph (a) of this sec-
<br />tion, or who has exchanged informa-
<br />tion in response to a request for infor-
<br />mation or a 'discovery order pursuant
<br />to paragraph (e) of this section, shall
<br />promptly supplement or correct the ex-
<br />change when the party learns that the
<br />information exchanged-or response.pro-
<br />vided.is incomplete, inaccurate or out-
<br />dated,- and the additional or corrective
<br />information has not, otherwise been
<br />disclosed to the other party pursuant
<br />to this section.
<br />(g) Failure to exchange information.
<br />Where a party fails to provide informa-
<br />tion within its.control as required pur=
<br />suant to this -section;: the Presiding Of-
<br />ficer may, in his discretion:
<br />(1) Infer that the information would
<br />be adverse to the party failing to pro-
<br />ride it;
<br />(2) Exclude the information from evi-
<br />dence; or
<br />(3) Issue a default order under
<br />§ 22.17(c).
<br />§ 22.20 Accelerated decision; decision
<br />to dismiss.
<br />(a) General. The Presiding Officer
<br />may at any time render an accelerated
<br />decision in favor of a party as to any or
<br />all parts of the proceeding, without
<br />further hearing or upon such limited
<br />additional evidence, such as affidavits,
<br />as he may require, if no genuine issue
<br />of material fact exists and a party is
<br />entitled to judgment as a matter of
<br />law. The Presiding Officer, upon mo-
<br />tion of the respondent, may at any
<br />40 CFR Ch. t (7-1-05 Edition)
<br />time dismiss a proceeding without fur-
<br />ther hearing or upon such limited'addi-
<br />tional evidence." he requires, on the
<br />basis of failure to establish a prima
<br />facie cane or other grounds which show
<br />no right to relief on the part of the
<br />complainant.
<br />(b) Effect. (i) If an accelerated deci-
<br />sion or a decision to dismiss is issued
<br />as to all issues and claims in the pro-
<br />ceeding, the decision constitutes an
<br />initial decision of the Presiding Offi-
<br />cer, and shall be filed with the Re-
<br />gional Hearing Clerk.
<br />(2) If an accelerated decision or a de-
<br />cision to dismiss is rendered on less
<br />than all issues or claims in the pro-
<br />ceeding, the Presiding Officer shall de-
<br />termine what material facts exist with-
<br />out substantial controversy and what
<br />material facts remain controverted.
<br />ThQ partial accelerated decision or the
<br />order dismissing certain counts shall
<br />specify the facts which appear substan-
<br />tially uncontroverted, and the issues
<br />and claims upon which the hearing. will
<br />proceed.
<br />Subpart D-Hearing Procedures
<br />§22.21 Assignment of Presiding Offi-
<br />cer; scheduling.the hearing. .
<br />(a) Assignment of Presiding Officer.,
<br />When an answer is filed, the Regional
<br />Hearing Clerk shall forward a copy of
<br />the complaint, the answer, and any
<br />other -documents filed in the. pro-
<br />ceeding to the Chief Administrative
<br />Law Judge who shall serve as Presiding
<br />Officer or assign another Admdnistra-,
<br />tive Law Judge as Presiding Officer.
<br />The Presiding Officer shall then obtain
<br />the case file from the Chief Adminis-
<br />trative •Law Judge and notify the par-
<br />ties of his assignment.
<br />(b) Notice of hearing. The. Presiding
<br />Officer shall hold a hearing if the pro-
<br />ceeddng.presents genuine issues of ma-
<br />terial fact. The Presiding Officer shall
<br />serve upon the parties a notice of hear-
<br />ing setting forth a time and place for
<br />the hearing not later than 30 days prior
<br />to the date set for the hearing. The
<br />Presiding 'Officer may require the at-
<br />tendance of witnesses or the produc-
<br />tion of documentary evidence by sub-
<br />poena, if authorized under the Act,
<br />upon a showing of the grounds and ne-
<br />cessity therefor, and the materiality
<br />n'A
<br />Environmental Protection Agency
<br />and relevancy of the evidence to be ad-
<br />duced:
<br />(c) Postponement of hearing. No re-
<br />quest for postponement of a hearing
<br />shall be granted except upon. motion
<br />and for good cause shown.
<br />(d) Location of the hearing. The loca-
<br />tion of the hearing shall be determined
<br />in accordance with the method for de-
<br />termining the location of a prehearing
<br />conference under §22.19(d).
<br />§ 22.22 Evidence.
<br />(a) General. (1) The Presiding Officer
<br />shall admit all evidence which is not
<br />irrelevant, immaterial, unduly repeti-
<br />tious, unreliable, or of little probative
<br />value, except that evidence relating to
<br />settlement which would be excluded in
<br />the federal courts under Rule 408 of the
<br />Federal Rules of Evidence (28 U;S.C.) is
<br />not admissible. If,, however, a party
<br />fails to. provide any document, exhibit,
<br />witness name or summary of expected
<br />testimony required to be exchanged
<br />under §22.19 (a), .(e) or (f) to all parties
<br />at least 15 days before the hearing
<br />date, the Presiding Officer _ shall not
<br />admit the document, exhibit or testi-
<br />mony into evidence, unless the non-ex-
<br />changing party had good cause for fail-
<br />ing to exchange the required informa-
<br />tion and provided the required informa-
<br />tion to all other parties as soon as it
<br />had control of the information, or had
<br />good cause for not doing so.
<br />.(2) In the presentation, admission,
<br />disposition; and use of oral and..-written
<br />evidence, .EPA officers, employees and
<br />authorized representatives shall pre-
<br />serve the confidentiality of informa-
<br />tion claimed confidential, whether or
<br />not the claim is made by a party to the
<br />proceeding, unless disclosure is author-
<br />ized pursuant to 40 CFR part 2. A busi-
<br />ness confidentiality claim shall not
<br />prevent -information from being intro-
<br />duced into evidence, but shall instead
<br />require that the information be treated
<br />in accordance with 40 CFR part 2, sub-
<br />part B. The Presiding Officer or the En-
<br />vironmental. Appeals Board may con-
<br />sider such evidence in a proceeding
<br />closed to the public, and which may be
<br />before some, but not all, parties, as
<br />necessary.. Such proceeding shall be
<br />closed oply to the extent necessary to
<br />comply with 40 CFR part 2, subpart B,
<br />for information claimed confidential.
<br />I
<br />I
<br />§ 22.23
<br />Any affected person- may move .for an
<br />order protecting the information
<br />claimed confidential.
<br />(b) Examination of witnesses. Wit-
<br />nesses shall be examined orally, under
<br />oath or affirmation, except as other-
<br />wise provided in paragraphs (c) and (d)
<br />of this section or by the Presiding Offi-
<br />cer. Parties shall have the right to
<br />cross-examine a witness who appears at
<br />the hearing provided that such cross-
<br />examination is not unduly repetitious.
<br />(c) Written testimony. The Presiding
<br />Officer may admit and insert into the
<br />record as evidence, in lieu of oral testi-
<br />mony, written testimony prepared by a
<br />witness. The admissibility of any part
<br />of the testimony shall be subject to the
<br />same rules as if the testimony were
<br />produced under oral examination. Be-
<br />fore any such testimony is read or ad-
<br />mitted into evidence, the party who
<br />has called the witness shall deliver a
<br />copy of the testimony to the Presiding
<br />Officer, the reporter, and opposing
<br />counsel. The witness presenting the
<br />testimony shall swear to..or affirm the
<br />testimony and shall be subject to. ap-
<br />propriate oral cross-examination.
<br />. (d) Admission of affidavits where the
<br />witness is unavailable. The Presiding Of-
<br />ficer-may admit into evidence affida-
<br />vits of witnesses who are unavailable.
<br />The term "unavailable" shall have the
<br />meaning accorded to it by Rule 804(a)
<br />of the Federal Rules of Evidence.
<br />(e) Exhibits. Where practicable, an
<br />original and one copy of each exhibit
<br />shall be filed with the Presiding Officer
<br />for the record and a copy shall be fur-
<br />nished to each party. A true copy of
<br />any exhibit may be substituted for the
<br />original.
<br />(f) Official notice: Official notice may
<br />be taken of any matter which can be
<br />judicially noticed in the Federal courts
<br />and of other facts within the special-
<br />ized knowledge and experience of the
<br />Agency. Opposing parties shall be given
<br />adequate. opportunity to show that
<br />such facts are erroneously noticed.
<br />§22.23 Objections and offers of proof.
<br />. (a) Objection. Any objection con-
<br />cerning the conduct of the hearing may
<br />be stated orally or in writing during
<br />the hearing. The party raising the ob-
<br />jection must supply a short statement
<br />255
|