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§ 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