2008-08-28_ENFORCEMENT - M1983194

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§§ 22.46-22.49 (4) Petition to set aside a consent agree- ment and proposed final order: (i) Com- plainant shall provide to each com- menter, by certified mail, return re- ceipt requested, but not to. the Re- gional Hearing Clerk or Presiding Offi- cer, a copy of any consent agreement between the parties and the proposed final order. (it) Within 30 days of receipt of the consent agreement and proposed final order a commenter may petition- the Regional Administrator (or, for cases commenced at EPA Headquarters, the Environmental Appeals Board), to set aside the consent agreement and pro- posed final order on .)is basis that ma- terial evidence was not considered. Copies of the- petition shall be' served on the parties, but shall not be sent to the Regional Hearing Clerk or the Pre- siding Officer. (iii) Within 15 days of.receipt of a pe- tition, the complainant may, with no- tice to the Regional Administrator or Environmental Appeals Board and to the commenter, withdraw the consent agreement and proposed final order to consider the matters raised in the peti- tion. If the complainant does not give notice of withdrawal within 15 days of receipt of _ the petition, the Regional Administrator or Environmental Ap- peals board shall assign a Petition Of- ficer to consider-and rule on the peti- tion. The Petition Officer shall be an- other Presiding Officer, not otherwise involved in the case. Notice of this as- signment shall be -sent to the parties, and to the Presiding Officer: - (iv) Within 30 days of assignment of the Petition Officer, the complainant shall present to the Petition Officer a copy of the complaint and a written re- sponse to the petition. A copy of the response shall"be provided to the par- ties and to the commenter, but not to the Regional Hearing. Clerk or Pre- siding Officer. (v) The Petition Officer shall review the petition, and complainant's re- sponse, and shall file with the Regional Hearing Clerk, with copies to the par- ties, the commenter, and the Presiding Officer, written findings as to: (A) The extent to which the petition states an issue relevant and material to the issuance of the proposed final order; 40 CFR Ch. 1 (7-1-05 Edition) (B) Whether complainant adequately considered and responded to. the peti- tion; and (C). Whether a :resolution of the pro- ceeding by the parties 'is appropriate without a hearing. (vi) Upon a finding by the Petition Officer that a hearing is appropriate, the. Presiding Officer shall order that the consent agreement and proposed final order be set aside and shall estab- lish a schedule for a hearing. (vii) Upon a finding by the Petition Officer that a resolution of the pro- ceeding without a hearing is appro- priate, the Petition Officer shall issue an order denying the petition and stat- ing reasons for the denial. The Petition Officer shall: (A) File the order with the Regional Hearing Clerk; (B) Serve copies of the order on the parties and the commenter; and. (C) Provide public notice of the order. (viii) 'Upon a finding by the Petition Officer that a resolution of the pro- ceeding without a hearing is - appro- priate; the Regional Administrator may issue the proposed final order, which shall become final 30 days after both the order denying the petition and a properly signed consent agreem"t are filed with the Regional Hearing Clerk, unless further petition for re- view is filed by a notice of appeal in the appropriate United States District Court, with coincident notice by cer- tified mail to the Administrator and the Attorney General. Written notice of appeal also shall be filed with the Regional Hearing Clerk, and sent to the Presiding Officer and the parties. (ix) If judicial review of the final order' is denied, the final order shall be- come effective 30 days after such denial has. been filed with the Regional Hear- ing Clerk-. §§22.46-22.49 [Reserved] Subpart I-Administrative Pro- ceedings Not Governed by Section 554 of the Administra- tive Procedure Act * - §22.56 Scope of this subpart. (a) Scope. This subpart applies to all adjudicatory proceedings for: Environmental Protection Agency (1) The assessment of a penalty under sections 309(g)(2)(A) and .311(b)(6)(B)(i) of the Clean Water Act (33 U.S.C. 1319(g)(2)(A) and 1321(b)(6)(B)(i)). .(2) The assessment of a penalty under sections 1414(g)(3)(B) and 1423(c) of the Safe Drinking Water Act (42 U.S.C. 300g-3(g)(3)(B) and 300h-2(e)), except where a respondent in a proceeding under section 1414(g)(3)(B) requests in its answer a hearing on the. record in accordance with section 554 of the Ad- ministrative Procedure Act, 5 U.S.C. 554. (b) Relationship to other provisions. Sections 22.1 through 22.45 apply to proceedings under this subpart, except for the following provisions which do not apply: §§22.11, 22.16(c),,22 " 21(a), and 22.29. Where inconsistencies exist be- tween- this subpart and subparts A through G of this part, this subpart shall apply. Where inconsistencies exist between this subpart and subpart H of this part, subpart H shall apply. §22.61 Presiding Officer. The Presiding Officer shall be a Re- gional Judicial Officer. The Presiding Officer shall conduct the hearing, and .rule on all motions until an initial de- cision has become final or has been ap- pealed. §22.52 Information exchange and dis- covery. Respondent's information exchange pursuant to.§22.19(a) shall include in- formation on any economic benefit re- sulting from any activity or failure to act which is alleged in the administra- tive complaint to be a violation of ap- plicable law, including its gross reve- nues, delayed or - avoided costs. Dis- covery under §22.19(e) shall not be au-. thorized, except for discovery of infor- mation concerning respondent's eco- nomic benefit from alleged violations and information concerning respond- ent's ability to pay a penalty. PART 23-JUDICIAL REVIEW UNDER EPA-ADMINISTERED STATUTES Sec. 23.1 Definitions. 23.2 Timing of Administrator's action under Clean Water Act. § 23.1 23.3 Timing of Administrator's action under Clean Air Act. 23.4 Timing of Administrator's action under Resource Conservation and Recovery Act. 23.5 Timing of Administrator's action under Toxic Substances Control Act. 23.6 Timing of Administrator's action under Federal Insecticide, Fungicide and Rodenticide Act. -23.7 Timing of Administrator's action under Safe Drinking Water Act. 23.8 Timing of Administrator's action under Uranium Mill Tailings Radiation Control Act of 1978. 23.9 Timing of Administrator's action under the Atomic Energy Act. 23.10 Timing of Administrator's action under the Federal Food, Drug, and Cos- metic Act. 23.11 Holidays. 23.12 Filing notice of judicial review. AUTHORITY: Clean Water Act, 33 U.S.C. 1361(a), 1369(b); Clean Air Act, 42 U.S:C. 7601(a)(1), 7607(b); Resource, Conservation and Recovery Act, 42 U.S.C. 6912(a), 6976; Toxic Substances Control Act, 15 U.S.C. 2618; Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. 136n(b), 136w(a); Safe Drinking Water Act; 42 U.S.C. 300J 7(a)(2), 300J-9(a); Atomic Energy Act, 42 U.S.C. 2201, 2239; Federal Food, Drug, and Cosmetic Act, 21 U.S.C. 371(a), 346a, :348; 28 U.S.C. 2112(x), 2343, 2344. EFFECTIVE DATE NOTE: At 70 FR 33359, June 8, 2005, the authority citation for part 23 was revised, effective Aug. 8, 2005. For the con- venience of the user, the revised text is set forth as follows: AUTHORITY: Clean Water Act, 33 U.S.C. 1361(a), 1369(b); Clean. Air Act, 42 U.S.C. 7601(a)(1), 7607(b); Resource, Conservation and Recovery Act, 42 U.S.C. 6912(a), 6976; Toxic Substances Control Act, 15 U.S-.C. 2618; Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. 136n(b), 136w(a); Safe Drinking Water Act, 42 U.S.C. 300j- 7(a)(2), 300j-9(a); Atomic Energy Act, 42 U.S.C. 2201, 2239; Federal. Food, Drug, and Cosmetic Act, 21 U.S.C. 371(a), 346a, 28 U.S.C. 2112(a),2343, 2344. SOURCE: 50 FR 7270, Feb. 21, 1985, unless otherwise noted. . § 23.1 Definitions. As used in this part, the term: (a) Federal Register document means a document intended for publication in the. FEDERAL REGISTER and bearing in its heading an identification code in- cluding the letters FRL.