2008-08-28_ENFORCEMENT - M1983194

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§ 22.24 of its-grounds. The ruling by the Pre- siding officer on,any objection and the reasons given for it shall be part of the record. An exception to each objection overruled shall be automatic and is not waived by further participation in the hearing. (b) Offers of proof. Whenever the Pre- siding Officer denies a motion for ad- mission into evidence, the party offer- ing the information may make an offer of proof, which shall be included in the record. The offer of proof for excluded oral testimony shall consist of a brief statement describing the nature of the information excluded. The offer of proof for excluded documents or exhib- its shall consist of the documents or exhibits. excluded. Where the Environ- mental Appeals Board. decides that the ruling of the Presiding Officer in ex- cluding the information from evidence was both erroneous.and prejudicial, the hearing may be reopened to permit the taking of such evidence. § 22.24 Burden of presentation; burden of persuasion; preponderance of the evidence standard. (a) The complainant has the burdens of presentation and persuasion that the violation occurred as set forth in the complaint and that the relief sought is appropriate. Following complainant's establishment of a prima facie case, re- spondent shall have the burden -of pre- senting any defense to the allegations set forth in the complaint and-any re- sponse or evidence with respect to the . appropriate relief. The respondent has the burdens of presentation and persua- "sion for any affirmative defenses. (b). Each matter of controversy shall be decided by the Presiding Officer upon a preponderance of the evidence. § 22.25 Filing the transcript. 40 CFR Ch. 1 (7-1-05 Edition) tify all parties of the availability of the transcript and shall furnish the parties with a copy of the transcript upon payment of the cost of reproduc- tion, unless a party can show that the cost is unduly burdensome. Any person not a party to the proceeding may re- ceive a copy of the transcript upon payment of the reproduction fee, ex- cept for those parts of the transcript ordered. to be kept confidential by the Presiding Officer. Any party may file a motion to conform the. transcript to the actual testimony within 30 days after. receipt of the transcript, or 45 days after the parties are notified of, the availability of the transcript, whichever is sooner. §22.26 Proposed findings, conclusions, and order. After the hearing, any party may file proposed findings of fact, conclusions of law, and a proposed order, together with briefs in support thereof. The Pre- siding Officer shall set a schedule for filing these documents and any reply briefs,. but shall not require them be- fore the last date for filing,motions. under §22.25 to conform the transcript to the actual testimony. All submis- sions shall be in writing, shall be - served upon all parties, and shall con- ` tain-adequate references"to the record and authorities relied on. Subpart E-Initial Decision and Motion To Reopen a Hearing. § 22.27 Initial Decision. (a) Filing and contents. After the pe- riod for filing briefs under §22.26 has expired, the Presiding Officer shall issue an initial decision. The initial de- cision shall contain findings of fact, conclusions regarding all material issues of law or discretion, as well as reasons therefor, and, if appropriate, a recommended civil penalty assessment, compliance order, corrective ..action order, or Permit Action. Upon receipt of an initial decision, the Regional Hearing Clerk shall forward copies of the initial . decision to the Environ- mental Appeals Board and. the Assist- ant Administrator for the Office of En- forcement and Compliance Assurance. The hearing shall be transcribed ver- batim. Promptly following the taking of the last evidence, the reporter shall transmit to the-Regional Hearing Clerk the original and as many copies of the transcript of testimony as are called for in the reporter's contract with the Agency, and also shall transmit to the Presiding Officer a copy of the tran- script. A certificate of service shall ac- company each copy of the transcript. The Regional Hearing Clerk shall no- Environmental Protection Agency (b) Amount of civil penalty. If the Pre- siding Officer determines that a viola- tion has occurred and the complaint seeks a civil penalty, the Presiding Of- ficer shall determine the amount of the recommended civil penalty based on the evidence in the record and in ac- cordance with any penalty criteria set forth in the Act. The Presiding Officer shall consider any civil penalty guide- lines issued under the Act: The Pre- siding Officer shall explain in detail in the initial decision how the penalty to be assessed corresponds to any penalty criteria set forth in the Act. If the Pre- siding Officer decides to assess a pen- alty different in amount from the pen- alty proposed by complainant, the Pre-. siding Officer shall set forth in the ini- tial decision the specific reasons for the increase or decrease. If the re- spondent has defaulted, the Presiding Officer shall not assess a penalty great- er than that proposed by complainant in the complaint, the prehearing infor- mation exchange or the motion for de- fault; whichever is less. (c) Effect of initial decision. The initial decision of the Presiding Officer shall become a final order 45 days after its service upon the parties and without further proceedings unless: (1) A party moves to reopen the hear- ing; (2) A party appeals the initial deci- sion to the Environmental Appeals Board; (3) A party moves to set aside a de- fault order that constitutes an initial decision; or (4) The Environmental Appeals Board elects to review the initial decision on its own initiative. (d) Exhaustion of administrative rem- edies. Where a respondent fails to ap- peal an initial decision to the Environ- mental . Appeals Board pursuant to §22.30 and that initial decision becomes a final order pursuant to paragraph (c) of this section, respondent waives its rights to. judicial review. An initial de- cision that is appealed to- the Environ- mental Appeals Board shall not be final or operative pending the Environ- mental Appeals Board's issuance of a final order. § 22,29 §22.28 Motion to reopen a hearing. (a) Filing and content. A motion to re- open a hearing to take further evidence must be filed no later than 20 days after service of the initial decision and shall state the specific grounds upon which 'relief is sought.. Where the mov- ant seeks to introduce new evidence, the motion shall: state briefly the na- ture and purpose of the evidence to be adduced; show that such evidence is not cumulative; and show good cause why such evidence was not adduced at the hearing. The motion shall be made to the Presiding Officer and filed with the Regional Hearing Clerk. (b) Disposition of motion to reopen a hearing. Within 15 days following the service of a motion to reopen a hear- ing, any other party to the proceeding -may file with the- Regional Hearing Clerk and serve on all other parties a response. A reopened hearing shall be governed by the applicable sections of these Consolidated Rules of Practice. The filing of a motion to reopen a hear- ing shall automatically stay the run- ning of the time periods for' an initial decision becoming final under §22.27(c) and for appeal under §22.30. These time periods shall begin again in full when the motion is denied or an amended initial decision is served. Subpart F-Appeals and Administrative Review §22.29 Appeal from or review of inter- locutory orders or rulings. (a) Request for interlocutory appeal. Appeals from orders or rulings other than an initial decision shall be al- lowed only at the discretion of the En- vironmental Appeals Board. A party seeking interlocutory appeal of such orders or rulings to the Environmental Appeals Board shall file a motion with- in 10 days of service of the order or rul- ing, requesting that-the Presiding Offi- cer forward the order or ruling to the Environmental Appeals Board for re- view, and stating briefly the grounds for the appeal. (b) Availability.of interlocutory appeal. The.Presiding Officer may recommend any order or ruling for review by the Environmental Appeals Board when: 957