[Code of Federal Regulations]
[Title 40, Volume 16, Parts 190 to 259]
[Revised as of July 1, 1998]
[CITE: 40CFR209.1]
[Page 149]
TITLE 40--PROTECTION OF ENVIRONMENT
CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
PART 209--RULES OF PRACTICE GOVERNING PROCEEDINGS UNDER THE NOISE CONTROL ACT OF 1972--Table of Contents
Subpart A--Rules of Practice Governing Hearings for Orders Issued Under
Section 11(d) of the Noise Control Act
Sec. 209.1 Scope.
These rules of practice govern all proceedings conducted in the
issuance of an order under section 11(d) of the Noise Control Act of
1972, 42 U.S.C. 4910.
[Code of Federal Regulations]
[Title 40, Volume 16, Parts 190 to 259]
[Revised as of July 1, 1998]
[CITE: 40CFR209.2]
[Page 149]
TITLE 40--PROTECTION OF ENVIRONMENT
CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
PART 209--RULES OF PRACTICE GOVERNING PROCEEDINGS UNDER THE NOISE CONTROL ACT OF 1972--Table of Contents
Subpart A--Rules of Practice Governing Hearings for Orders Issued Under
Section 11(d) of the Noise Control Act
Sec. 209.2 Use of number and gender.
In these rules of practice, words in the singular number apply to
the plural and words in the masculine gender apply to the feminine and
vice versa.
[Code of Federal Regulations]
[Title 40, Volume 16, Parts 190 to 259]
[Revised as of July 1, 1998]
[CITE: 40CFR209.3]
[Page 149-150]
TITLE 40--PROTECTION OF ENVIRONMENT
CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
PART 209--RULES OF PRACTICE GOVERNING PROCEEDINGS UNDER THE NOISE CONTROL ACT OF 1972--Table of Contents
Subpart A--Rules of Practice Governing Hearings for Orders Issued Under
Section 11(d) of the Noise Control Act
Sec. 209.3 Definitions.
All terms not defined in this section shall have the meaning given
them in the Act.
(a) Act means the Noise Control Act of 1972 (42 U.S.C. 4901 et
seq.).
(b) Administrative law judge means an administrative law judge
appointed under 5 U.S.C. 3105 (see also 5 CFR part 930, as amended by 37
FR 16787). ``Administrative law judge'' is synonymous with ``hearing
examiner'' as used in Title 5 of the United States Code.
(c) Administrator means the Administrator of the Environmental
Protection Agency or his or her delegate.
(d) Agency means the U.S. Environmental Protection Agency.
(e) Complainant means the Agency acting through any person
authorized by the Administrator to issue a complaint to alleged
violators of the Act. The complainant shall not be the judicial officer
or the Administrator.
(f) Hearing clerk means the hearing clerk of the Environmental
Protection Agency.
(g) Intervener means a person who files a motion to be made a party
under Sec. 209.15 or Sec. 209.16, and whose motion is approved.
(h) Party means the Environmental Protection Agency, the
respondent(s) and any interveners.
(i) Person means any individual, corporation, partnership, or
association, and includes any officer, employee, department, agency or
instrumentality of the United States, a State, or any political
subdivision of a State.
(j) Respondent means any person against whom a complaint has been
issued under this subpart.
(k) Environmental Appeals Board means the Board within the Agency
described in Sec. 1.25 of this title. The Administrator delegates
authority to the Environmental Appeals Board to issue final decisions in
appeals filed under this part. An appeal directed to the Administrator,
rather than to the Environmental Appeals Board, will not be considered.
This delegation of authority to the Environmental Appeals Board does not
preclude the Environmental Appeals Board from referring an appeal or a
motion filed under this part to the Administrator for decision when the
Environmental Appeals Board, in its discretion, deems it appropriate to
do so. When an appeal or motion is referred to the Administrator, all
parties shall be so notified and the rules in this part referring to the
Environmental Appeals Board shall
[[Page 150]]
be interpreted as referring to the Administrator.
[43 FR 34132, Aug. 3, 1978, as amended at 57 FR 5344, Feb. 13, 1992]
[Code of Federal Regulations]
[Title 40, Volume 16, Parts 190 to 259]
[Revised as of July 1, 1998]
[CITE: 40CFR209.4]
[Page 150]
TITLE 40--PROTECTION OF ENVIRONMENT
CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
PART 209--RULES OF PRACTICE GOVERNING PROCEEDINGS UNDER THE NOISE CONTROL ACT OF 1972--Table of Contents
Subpart A--Rules of Practice Governing Hearings for Orders Issued Under
Section 11(d) of the Noise Control Act
Sec. 209.4 Issuance of complaint.
If the complainant has reason to believe that a person has violated
any provision of the Act or the regulations, he or she may institute a
proceeding for the issuance of a remedial order by issuing a complaint.
[Code of Federal Regulations]
[Title 40, Volume 16, Parts 190 to 259]
[Revised as of July 1, 1998]
[CITE: 40CFR209.5]
[Page 150]
TITLE 40--PROTECTION OF ENVIRONMENT
CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
PART 209--RULES OF PRACTICE GOVERNING PROCEEDINGS UNDER THE NOISE CONTROL ACT OF 1972--Table of Contents
Subpart A--Rules of Practice Governing Hearings for Orders Issued Under
Section 11(d) of the Noise Control Act
Sec. 209.5 Complaint.
(a) Contents. The complaint shall include (1) specific reference to
each provision of the Act or regulations which respondent is alleged to
have violated; (2) a brief statement of the factual basis for alleging
each violation; (3) the proposed order issued under section 11(d) of the
Act to remedy the violation, signed by the Assistant Administrator for
Enforcement, with notice that the order shall be effective 20 days after
service of the complaint unless respondent requests a hearing under
Sec. 209.6; (4) notice of respondent's right to request a hearing on any
material fact or issue of law contained in the complaint, or on the
appropriateness of the proposed order; and (5) a statement of whether
the respondent must submit a remedial plan pursuant to Sec. 209.8.
(b) Amendment of the complaint. At any time prior to the filing of
an answer, the complainant may amend the complaint as a matter of right.
Respondent shall have twenty (20) additional days from the date of
service of the amended complaint to file an answer. At any time after
the filing of an answer, the complaint may be amended upon motion
granted by the administrative law judge.
(c) Withdrawal of the complaint. Where, on the basis of new
information or evidence, the complainant concludes that no violation of
the Act or the regulations has been committed by the respondent or that
the issuance of the complaint was otherwise inappropriate, the
complainant may withdraw the complaint without prejudice at any stage in
the proceeding.
(d) Service of complaint. (1) Service of the complaint shall be made
on the respondent personally (or on his or her representative), or by
certified mail, return receipt requested.
(2) Service upon a domestic or foreign corporation or upon a
partnership or another unincorporated association which is subject to
suit under a common name shall be made by personal service or certified
mail, return receipt requested, directed to an officer or partner, a
managing or general agent, or any other agent authorized by appointment
or by Federal or State law to receive service of process.
(3) Proof of service of the complaint shall be made by affidavit of
the person making personal service, or by properly executed return
receipt.
[Code of Federal Regulations]
[Title 40, Volume 16, Parts 190 to 259]
[Revised as of July 1, 1998]
[CITE: 40CFR209.6]
[Page 150-151]
TITLE 40--PROTECTION OF ENVIRONMENT
CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
PART 209--RULES OF PRACTICE GOVERNING PROCEEDINGS UNDER THE NOISE CONTROL ACT OF 1972--Table of Contents
Subpart A--Rules of Practice Governing Hearings for Orders Issued Under
Section 11(d) of the Noise Control Act
Sec. 209.6 Answer.
(a) General. Where respondent (1) contests any material fact alleged
in the complaint to constitute a violation of the Act or regulations; or
(2) contends that the remedial order proposed in the complaint is
inappropriate to the violation; or (3) contends that he or she is
entitled to judgment as a matter of law, he or she shall file a written
answer with the complainant. Any answer must be filed with the
complainant within twenty (20) days after service of the complaint.
Initiation of informal conferences with the Agency under Sec. 209.19
does not add to the twenty (20) day period. The time period in which to
file an answer may be extended by the Administrator upon motion.
(b) Contents of the answer. The answer shall clearly and directly
admit, deny or explain each of the factual allegations contained in the
complaint with regard to which respondent has any knowledge. Whenever an
allegation is denied, the answer shall state briefly the facts upon
which the denial is based. The answer shall also state (1) whether a
hearing is requested, (2) the facts respondent intends to place at
issue, and (3) the circumstances or arguments which are alleged to
constitute the grounds of defense.
(c) Hearing upon the issues. A hearing upon the issues raised by the
complaint and answer shall be held upon written demand of respondent.
(d) Failure to plead specifically. A respondent's failure to plead
specifically
[[Page 151]]
to any material factual allegation contained in the complaint shall
constitute an admission of such allegation.
(e) Amendment of the answer. The respondent may amend the answer
upon motion granted by the administrative law judge.
[Code of Federal Regulations]
[Title 40, Volume 16, Parts 190 to 259]
[Revised as of July 1, 1998]
[CITE: 40CFR209.7]
[Page 151]
TITLE 40--PROTECTION OF ENVIRONMENT
CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
PART 209--RULES OF PRACTICE GOVERNING PROCEEDINGS UNDER THE NOISE CONTROL ACT OF 1972--Table of Contents
Subpart A--Rules of Practice Governing Hearings for Orders Issued Under
Section 11(d) of the Noise Control Act
Sec. 209.7 Effective date of order in complaint.
(a) The order in the complaint is effective and binding on
respondent 20 days after service of the complaint, unless respondent
requests a hearing pursuant to Sec. 209.6. If the respondent does not
request a hearing, the order is then a final order of the Agency.
(b) Respondent may file a motion with the complainant to vacate the
final order, reopen the proceedings and request a hearing after the
order is effective. This motion must be filed within twenty (20) days
after the effective date of the order. The motion shall state the
reasons respondent failed to file a timely answer, and provide the
information required by Sec. 209.6(b). The Administrator may, in his or
her discretion and for good cause shown, grant the motion.
[Code of Federal Regulations]
[Title 40, Volume 16, Parts 190 to 259]
[Revised as of July 1, 1998]
[CITE: 40CFR209.8]
[Page 151]
TITLE 40--PROTECTION OF ENVIRONMENT
CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
PART 209--RULES OF PRACTICE GOVERNING PROCEEDINGS UNDER THE NOISE CONTROL ACT OF 1972--Table of Contents
Subpart A--Rules of Practice Governing Hearings for Orders Issued Under
Section 11(d) of the Noise Control Act
Sec. 209.8 Submission of a remedial plan.
(a) The Administrator may require the respondent to submit a
remedial plan. Notice of this requirement and the due date will be given
in the complaint. If the respondent requests a hearing, the remedial
plan required by the complaint need not be submitted. The final order
may include a requirement that the respondent submit a remedial plan.
(b) A respondent may always submit a remedial plan voluntarily in
pursuit of informal settlement.
(Sec. 13, Noise Control Act (42 U.S.C. 4912))
[Code of Federal Regulations]
[Title 40, Volume 16, Parts 190 to 259]
[Revised as of July 1, 1998]
[CITE: 40CFR209.9]
[Page 151]
TITLE 40--PROTECTION OF ENVIRONMENT
CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
PART 209--RULES OF PRACTICE GOVERNING PROCEEDINGS UNDER THE NOISE CONTROL ACT OF 1972--Table of Contents
Subpart A--Rules of Practice Governing Hearings for Orders Issued Under
Section 11(d) of the Noise Control Act
Sec. 209.9 Contents of a remedial plan.
(a) The Administrator will specify the requirements of the remedial
plan. This may include, but is not limited to, the following
information:
(1) A detailed description of the products covered by the remedial
order, including the category and/or configuration if applicable, and
the make, model year and model number, if applicable.
(2) A detailed description of the present location of the products,
including a list of those in possession of the products and, if
necessary, how the respondent intends to contact the persons in
possession and retrieve the products.
(3) Any appropriate remedies the respondent would propose as an
alternative to the specific remedies proposed by the Administrator.
(4) A detailed plan for implementing the remedies, both those
proposed by the Administrator and those proposed by the respondent.
(5) A detailed account of the costs of implementing each of the
proposed plans.
(b) Remedial plans shall be submitted to Director, Noise Enforcement
Division (EN-387), Environmental Protection Agency, 401 M Street SW.,
Washington, DC 20460.
(Sec. 13, Noise Control Act (42 U.S.C. 4912))
[Code of Federal Regulations]
[Title 40, Volume 16, Parts 190 to 259]
[Revised as of July 1, 1998]
[CITE: 40CFR209.10]
[Page 151]
TITLE 40--PROTECTION OF ENVIRONMENT
CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
PART 209--RULES OF PRACTICE GOVERNING PROCEEDINGS UNDER THE NOISE CONTROL ACT OF 1972--Table of Contents
Subpart A--Rules of Practice Governing Hearings for Orders Issued Under
Section 11(d) of the Noise Control Act
Sec. 209.10 Approval of plan, implementation.
(a) If the Administrator finds that the remedial plan is designed to
remedy the noncompliance effectively, he or she will so notify the
respondent in writing. If the remedial plan is not approved, the
Administrator will provide the respondent with written notice of the
disapproval and the reasons for the disapproval. The Administrator may
give the respondent an opportunity to revise the plan, or the
Administrator may revise the plan.
(b) The respondent shall commence implementation of the approved
plan upon receipt of notice from the Administrator that the remedial
plan has been approved, or revised by the Administrator and then
approved.
(Sec. 13, Noise Control Act (42 U.S.C. 4912))
[Code of Federal Regulations]
[Title 40, Volume 16, Parts 190 to 259]
[Revised as of July 1, 1998]
[CITE: 40CFR209.11]
[Page 151-152]
TITLE 40--PROTECTION OF ENVIRONMENT
CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
PART 209--RULES OF PRACTICE GOVERNING PROCEEDINGS UNDER THE NOISE CONTROL ACT OF 1972--Table of Contents
Subpart A--Rules of Practice Governing Hearings for Orders Issued Under
Section 11(d) of the Noise Control Act
Sec. 209.11 Filing and service.
(a) After an answer containing a written demand for a hearing has
been filed, an original and two copies of all documents or papers
required or permitted to be filed under these rules of practice shall be
filed with the hearing clerk.
(b) When a party files with the hearing clerk any pleadings, any
additional issues for consideration at the hearing, or any written
testimony, documents, papers, exhibits, or materials, proposed
[[Page 152]]
to be introduced into evidence or papers filed in connection with any
appeal, it shall serve copies upon all other parties. A certificate of
service shall be provided on or accompany each document or paper filed
with the hearing clerk. Documents to be served upon the Director of the
Noise Enforcement Division shall be mailed to: Director, Noise
Enforcement Division, U.S. Environmental Protection Agency (EN-387), 401
M Street SW., Washington, DC 20460.
(c) Service by mail is complete upon mailing. Filing is completed
when the document reaches the hearing clerk. It shall be timely if
mailed within the time allowed for filing as determined by the postmark.
[Code of Federal Regulations]
[Title 40, Volume 16, Parts 190 to 259]
[Revised as of July 1, 1998]
[CITE: 40CFR209.12]
[Page 152]
TITLE 40--PROTECTION OF ENVIRONMENT
CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
PART 209--RULES OF PRACTICE GOVERNING PROCEEDINGS UNDER THE NOISE CONTROL ACT OF 1972--Table of Contents
Subpart A--Rules of Practice Governing Hearings for Orders Issued Under
Section 11(d) of the Noise Control Act
Sec. 209.12 Time.
(a) In computing any period of time prescribed or allowed by these
rules of practice, the day of the act or event from which the designated
period of time begins to run shall not be included, except as otherwise
provided. Saturdays, Sundays, and Federal legal holidays shall be
included in computing any period allowed for the filing of any document
or paper, except that when a period expires on a Saturday, Sunday, or
Federal legal holiday, the period shall be extended to include the next
following business day.
(b) A prescribed period of time within which a party is required or
permitted to do an act shall be computed from the time of service,
except that when service is accomplished by mail, 3 days shall be added.
[Code of Federal Regulations]
[Title 40, Volume 16, Parts 190 to 259]
[Revised as of July 1, 1998]
[CITE: 40CFR209.13]
[Page 152]
TITLE 40--PROTECTION OF ENVIRONMENT
CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
PART 209--RULES OF PRACTICE GOVERNING PROCEEDINGS UNDER THE NOISE CONTROL ACT OF 1972--Table of Contents
Subpart A--Rules of Practice Governing Hearings for Orders Issued Under
Section 11(d) of the Noise Control Act
Sec. 209.13 Consolidation.
The Administrator or the administrative law judge may consolidate
two or more proceedings to be held under this section for resolving one
or more issues whenever it appears that such consolidation will expedite
or simplify consideration of such issues. Consolidation shall not affect
the right of any party to raise any issues that could otherwise have
been raised.
[Code of Federal Regulations]
[Title 40, Volume 16, Parts 190 to 259]
[Revised as of July 1, 1998]
[CITE: 40CFR209.14]
[Page 152]
TITLE 40--PROTECTION OF ENVIRONMENT
CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
PART 209--RULES OF PRACTICE GOVERNING PROCEEDINGS UNDER THE NOISE CONTROL ACT OF 1972--Table of Contents
Subpart A--Rules of Practice Governing Hearings for Orders Issued Under
Section 11(d) of the Noise Control Act
Sec. 209.14 Motions.
(a) All motions, except those made orally during the course of the
hearing, shall be in writing, shall state the grounds with
particularity, and shall set forth the relief or order sought.
(b) Within 10 days after service of any motion filed under this
section or within such other time as may be fixed by the Environmental
Appeals Board or the administrative law judge, as appropriate, any party
may serve and file an answer to the motion. The movant shall, by leave
of the Environmental Appeals Board or the administrative law judge, as
appropriate, serve and file reply papers within the time set by the
request.
(c) The administrative law judge shall rule upon all motions filed
or made subsequent to his or her appointment and prior to the filing of
his or her decision or accelerated decision, as appropriate. The
Environmental Appeals Board shall rule upon all motions filed before the
appointment of the administrative law judge and all motions filed after
the filing of the decision of the administrative law judge or
accelerated decision. Oral argument of motions will be permitted only if
the administrative law judge or the Environmental Appeals Board, as
appropriate, deems it necessary.
[43 FR 34132, Aug. 3, 1978, as amended at 57 FR 5344, Feb. 13, 1992]
[Code of Federal Regulations]
[Title 40, Volume 16, Parts 190 to 259]
[Revised as of July 1, 1998]
[CITE: 40CFR209.15]
[Page 152-153]
TITLE 40--PROTECTION OF ENVIRONMENT
CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
PART 209--RULES OF PRACTICE GOVERNING PROCEEDINGS UNDER THE NOISE CONTROL ACT OF 1972--Table of Contents
Subpart A--Rules of Practice Governing Hearings for Orders Issued Under
Section 11(d) of the Noise Control Act
Sec. 209.15 Intervention.
(a) Persons desiring to intervene in a hearing to be held under
section 11(d) of the act shall file a motion setting forth the facts and
reasons why they should be permitted to intervene.
(b) In passing on a motion to intervene, the following factors,
among other things, shall be considered by the administrative law judge:
(1) The nature of the movant's interest including the nature and the
extent of the property, financial, environmental protection, or other
interest of the movant;
(2) The effect the order which may be entered in the proceeding may
have on the movant's interest;
(3) The extent to which the movant's interest will be represented by
existing parties or may be protected by other means;
(4) The extent to which the movant's participation may reasonably be
expected to assist materially in the development of a complete record;
[[Page 153]]
(5) The extent to which one movant's participation may reasonably be
expected to delay the proceedings.
(c) A motion to intervene should be filed before the first
prehearing conference, the initiation of correspondence under
Sec. 209.20, or the setting of the time and place for the hearing,
whichever occurs earliest. Motions shall be served on all parties. Any
opposition to such motion must be filed within 10 days of service.
(d) All motions to be made an intervener shall be reviewed by the
administrative law judge using the criteria set forth in paragraph (b)
of this section and considering any opposition to such motion. The
administrative law judge may, in granting such motion, limit a movant's
participation to certain issues only.
(e) If the administrative law judge grants the motion with respect
to any or all issues, he or she shall notify, or direct the hearing
clerk to notify, the petitioner and all parties. If the administrative
law judge denies the motion he or she shall notify, or direct the
hearing clerk to notify, the petitioner and all parties and shall
briefly state the reasons why the motion was denied.
(f) All motions to be made an intervener shall include the movant's
agreement that the movant and any person he or she represents will be
subject to examination and cross-examination, and will also include an
agreement to make any supporting and relevant records available at the
movant's own expense upon the request of the administrative law judge,
on his or her own motion or the motion of any party or other intervener.
If the intervener fails to comply with any of these requests, the
administrative law judge may, in his or her discretion, terminate his or
her status as an intervener.
[Code of Federal Regulations]
[Title 40, Volume 16, Parts 190 to 259]
[Revised as of July 1, 1998]
[CITE: 40CFR209.16]
[Page 153]
TITLE 40--PROTECTION OF ENVIRONMENT
CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
PART 209--RULES OF PRACTICE GOVERNING PROCEEDINGS UNDER THE NOISE CONTROL ACT OF 1972--Table of Contents
Subpart A--Rules of Practice Governing Hearings for Orders Issued Under
Section 11(d) of the Noise Control Act
Sec. 209.16 Late intervention.
Following the expiration of the time prescribed in Sec. 209.15 for
the submission of motions to intervene in a hearing, any person may file
a motion with the administrative law judge to intervene in a hearing.
Such a motion must contain the information and commitments required by
paragraph (b) and (f) of Sec. 209.15, and, in addition, must show that
there is good cause for granting the motion and must contain a statement
that the movant shall be bound by agreements, arrangements, and other
determinations which may have been made in the proceeding.
[Code of Federal Regulations]
[Title 40, Volume 16, Parts 190 to 259]
[Revised as of July 1, 1998]
[CITE: 40CFR209.17]
[Page 153]
TITLE 40--PROTECTION OF ENVIRONMENT
CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
PART 209--RULES OF PRACTICE GOVERNING PROCEEDINGS UNDER THE NOISE CONTROL ACT OF 1972--Table of Contents
Subpart A--Rules of Practice Governing Hearings for Orders Issued Under
Section 11(d) of the Noise Control Act
Sec. 209.17 Amicus curiae.
Persons not parties to the proceedings who wish to file briefs may
do so by leave of the Environmental Appeals Board or the administrative
law judge, as appropriate, granted on motion. This motion shall identify
the interest of the applicant and shall state the reasons why the
proposed amicus brief is desirable. An amicus curiae shall be eligible
to participate in any briefing following the granting of his or her
motion, and shall be served with all briefs, reply briefs, motions and
orders relating to issues to be briefed.
[43 FR 34132, Aug. 3, 1978, as amended at 57 FR 5344, Feb. 13, 1992]
[Code of Federal Regulations]
[Title 40, Volume 16, Parts 190 to 259]
[Revised as of July 1, 1998]
[CITE: 40CFR209.18]
[Page 153-154]
TITLE 40--PROTECTION OF ENVIRONMENT
CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
PART 209--RULES OF PRACTICE GOVERNING PROCEEDINGS UNDER THE NOISE CONTROL ACT OF 1972--Table of Contents
Subpart A--Rules of Practice Governing Hearings for Orders Issued Under
Section 11(d) of the Noise Control Act
Sec. 209.18 Administrative law judge.
(a) General. The administrative law judge shall conduct a fair and
impartial hearing in accordance with 5 U.S.C. 554, and shall take all
necessary action to avoid delay and maintain order. He or she shall have
all power consistent with Agency rule and with the Administrative
Procedure Act, 5 U.S.C. 551 et seq., necessary to this end, including
the following:
(1) To administer oaths and affirmations;
(2) To rule upon offers of proof and receive relevant evidence;
(3) To regulate the course of the hearings and the conduct of the
parties and their counsel;
(4) To hold conferences for simplification of the issues or any
other proper purpose;
(5) To consider and rule upon all appropriate procedural and other
motions, and to issue all necessary orders;
(6) To require the submission of testimony in written form whenever
in the opinion of the administrative law judge oral testimony is not
necessary for full and true disclosure of the facts.
(7) To require the filing of briefs on any matter on which he or she
is required to rule;
(8) To require any party or any witness, during the course of the
hearing,
[[Page 154]]
to state his or her position on any relevant issue;
(9) To take depositions or cause depositions to be taken in
accordance with Sec. 209.22.
(10) To render judgments upon issues of law during the course of the
hearing.
(11) To issue subpenas authorized by law.
(b) Assignment of administrative law judge. When an answer which
contains a written demand for a hearing is filed, the administrator
shall refer the proceeding to the chief administrative law judge, who
shall conduct the proceeding, or assign another administrative law judge
to conduct the proceeding.
(Sec. 16, Noise Control Act (42 U.S.C. 4915))
[Code of Federal Regulations]
[Title 40, Volume 16, Parts 190 to 259]
[Revised as of July 1, 1998]
[CITE: 40CFR209.19]
[Page 154]
TITLE 40--PROTECTION OF ENVIRONMENT
CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
PART 209--RULES OF PRACTICE GOVERNING PROCEEDINGS UNDER THE NOISE CONTROL ACT OF 1972--Table of Contents
Subpart A--Rules of Practice Governing Hearings for Orders Issued Under
Section 11(d) of the Noise Control Act
Sec. 209.19 Informal settlement and consent agreement.
(a) Settlement policy. The Agency encourages settlement of the
proceeding at any time after the issuance of a complaint if settlement
is consistent with the provisions and the objectives of the act and the
regulations. Whether or not respondent requests a hearing, he or she may
confer with complainant concerning the facts stated in the complaint or
concerning the appropriateness of the proposed remedial order. The terms
of any settlement agreement shall be expressed in a written consent
agreement. Conferences with complainant concerning possible settlement
shall not affect the 20 day time limit for filing an answer under
Sec. 209.6.
(b) Consent agreement. A written consent agreement signed by the
complainant and respondent shall be prepared by the complainant and
forwarded to the Environmental Appeals Board whenever settlement or
compromise is proposed. A copy shall be served on all other parties to
the proceeding, no later than the date the consent agreement is
forwarded to the Environmental Appeals Board. The consent agreement
shall state that, for the purpose of this proceeding, respondent (1)
admits the jurisdictional allegations of the complaint; (2) admits the
facts as stipulated in the consent agreement or neither admits nor
denies specific factual allegations contained in the complaint; and (3)
consents to the issuance of a given remedial order. The consent
agreement shall include (i) the terms of the agreement; (ii) any
appropriate conclusions regarding material issues of law, fact and/or
discretion as well as reasons therefor; and (iii) the Environmental
Appeals Board's proposed final order. The administrative law judge does
not have jurisdiction over a consent agreement.
(c) Final order. No settlement or consent agreement shall be
dispositive of any action pending under section 11(d) of the act without
a final order of the Environmental Appeals Board. In preparing a final
order, the Environmental Appeals Board may require that any or all of
the parties to the settlement or other parties appear before it to
answer inquiries relating to the proposed consent agreement. The hearing
is terminated without further proceedings upon the filing of the final
order with the hearing clerk.
[43 FR 34132, Aug. 3, 1978, as amended at 57 FR 5344, Feb. 13, 1992]
[Code of Federal Regulations]
[Title 40, Volume 16, Parts 190 to 259]
[Revised as of July 1, 1998]
[CITE: 40CFR209.20]
[Page 154-155]
TITLE 40--PROTECTION OF ENVIRONMENT
CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
PART 209--RULES OF PRACTICE GOVERNING PROCEEDINGS UNDER THE NOISE CONTROL ACT OF 1972--Table of Contents
Subpart A--Rules of Practice Governing Hearings for Orders Issued Under
Section 11(d) of the Noise Control Act
Sec. 209.20 Conferences.
(a) At the discretion of the administrative law judge, conferences
may be held prior to or during any hearing. The administrative law judge
shall direct the hearing clerk to notify all parties of the time and
location of any such conferences. At the discretion of the
administrative law judge, persons other than parties may attend. At a
conference the administrative law judge may:
(1) Obtain stipulations and admissions, receive requests and order
depositions to be taken, identify disputed issues of fact and law, and
require or allow the submission of written testimony from any witness or
party.
(2) Set a hearing schedule for as many of the following as are
deemed necessary by the administrative law judge:
(i) Oral and written statements;
(ii) Submission of written testimony as required or authorized by
the administrative law judge;
(iii) Oral direct and cross-examination of a witness;
(iv) Oral argument, if appropriate;
(3) Identify matters of which official notice may be taken;
(4) Consider limitation of the number of expert and other witnesses;
[[Page 155]]
(5) Consider the procedure to be followed at the hearing; and
(6) Consider any other matter that may expedite the hearing or aid
in the disposition of the issue.
(b) The results of any conference including all stipulations shall,
if not transcribed, be summarized in writing by the administrative law
judge and made part of the record.
(c) The administrative law judge, on motion or sua sponte, may
request correspondence from the parties for any of the objectives set
forth in this section. Copies of the administrative law judge's request
and the parties' correspondence shall be served upon all parties. The
administrative law judge shall include such correspondence in the record
and a written summary of any stipulation or agreement reached by means
of such correspondence as provided in paragraph (b) of this section.
[Code of Federal Regulations]
[Title 40, Volume 16, Parts 190 to 259]
[Revised as of July 1, 1998]
[CITE: 40CFR209.21]
[Page 155]
TITLE 40--PROTECTION OF ENVIRONMENT
CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
PART 209--RULES OF PRACTICE GOVERNING PROCEEDINGS UNDER THE NOISE CONTROL ACT OF 1972--Table of Contents
Subpart A--Rules of Practice Governing Hearings for Orders Issued Under
Section 11(d) of the Noise Control Act
Sec. 209.21 Primary discovery (exchange of witness lists and documents).
(a) At a prehearing conference or within some reasonable time set by
the administrative law judge prior to the hearing, each party shall make
available to the other parties the names of the expert and other
witnesses the party expects to call, together with a brief summary of
their expected testimony and copies of all documents and exhibits which
the party expects to introduce into evidence. Thereafter, witnesses,
documents, or exhibits may be added and summaries of expected testimony
amended upon motion by a party.
(b) The administrative law judge, may, upon motion by a party or
other person, and for good cause shown, by order (1) restrict or defer
disclosure by a party of the name of a witness or a narrative summary of
the expected testimony of a witness, and (2) prescribe other appropriate
measures to protect a witness. Any party affected by any such action
shall have an adequate opportunity, once he or she learns the name of a
witness and obtains the narrative summary of the witness' expected
testimony, to prepare for the presentation of his or her case.
[Code of Federal Regulations]
[Title 40, Volume 16, Parts 190 to 259]
[Revised as of July 1, 1998]
[CITE: 40CFR209.22]
[Page 155]
TITLE 40--PROTECTION OF ENVIRONMENT
CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
PART 209--RULES OF PRACTICE GOVERNING PROCEEDINGS UNDER THE NOISE CONTROL ACT OF 1972--Table of Contents
Subpart A--Rules of Practice Governing Hearings for Orders Issued Under
Section 11(d) of the Noise Control Act
Sec. 209.22 Other discovery.
(a) Further discovery under this section shall be undertaken only
upon order of the administrative law judge or upon agreement of the
parties, except as provided in Sec. 209.21. The administrative law judge
shall order further discovery only after determining:
(1) That such discovery will not delay the proceeding unreasonably;
(2) That the information to be obtained is not obtainable
voluntarily; and
(3) That such information is relevant to the subject matter of the
hearing.
(b) The administrative law judge shall order depositions upon oral
questions only upon a showing of good cause and a finding that:
(1) The information sought cannot be obtained by alternative
methods; or
(2) There is a substantial reason to believe that relevant and
probative evidence may otherwise not be preserved for presentation by a
witness at the hearing.
(c) Any party to the proceeding may make a motion or motions for an
order of discovery. The motion shall set forth:
(1) The circumstances which require the discovery;
(2) The nature of the information expected to be discovered; and
(3) The proposed time and place where it will be taken. If the
administrative law judge determines the motion should be granted, he or
she shall issue an order for the taking of such discovery together with
the conditions and terms thereof.
(d) A person's or party's failure to comply with a discovery order
may lead to the inference that the information to be discovered is
adverse to the person or party who failed to provide it.
[Code of Federal Regulations]
[Title 40, Volume 16, Parts 190 to 259]
[Revised as of July 1, 1998]
[CITE: 40CFR209.23]
[Page 155-156]
TITLE 40--PROTECTION OF ENVIRONMENT
CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
PART 209--RULES OF PRACTICE GOVERNING PROCEEDINGS UNDER THE NOISE CONTROL ACT OF 1972--Table of Contents
Subpart A--Rules of Practice Governing Hearings for Orders Issued Under
Section 11(d) of the Noise Control Act
Sec. 209.23 Trade secrets and privileged information.
In the presentation, admission, disposition, and use of evidence,
the administrative law judge shall preserve the confidentiality of trade
secrets and other privileged commercial and financial information. The
confidential or trade secret status of any information shall not,
however, preclude its being
[[Page 156]]
introduced into evidence. The administrative law judge may make such
orders as may be necessary to consider such evidence in camera. This may
include a supplemental initial decision to consider questions of fact
and conclusions regarding material issues of law, fact or discretion
which arise out of that portion of the evidence which is confidential or
which includes trade secrets.
[Code of Federal Regulations]
[Title 40, Volume 16, Parts 190 to 259]
[Revised as of July 1, 1998]
[CITE: 40CFR209.24]
[Page 156]
TITLE 40--PROTECTION OF ENVIRONMENT
CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
PART 209--RULES OF PRACTICE GOVERNING PROCEEDINGS UNDER THE NOISE CONTROL ACT OF 1972--Table of Contents
Subpart A--Rules of Practice Governing Hearings for Orders Issued Under
Section 11(d) of the Noise Control Act
Sec. 209.24 Default order.
(a) Default. Respondent may be found to be in default upon failure
to comply with a prehearing or hearing ruling of the Administrator or
the administrative law judge. A respondent's default shall constitute an
admission of all facts alleged in the complaint and a waiver of
respondent's right to a hearing on such factual allegations. The
remedial order proposed is binding on respondent without further
proceedings upon the issuance by the Environmental Appeals Board of a
final order issued upon default.
(b) Proposed default order. Where the administrative law judge finds
a default has occurred after a request for a hearing has been filed, the
administrative law judge may render a proposed default order to be
issued against the defaulting party. For the purpose of appeal pursuant
to Sec. 209.31 this order shall be deemed to be the initial decision of
the administrative law judge.
(c) Contents of a final order issued upon default. A final order
issued upon default shall include findings of fact, conclusions
regarding all material issues of law, fact, or discretion, and the
remedial order which is issued. An order issued by the Environmental
Appeals Board upon default of respondent shall constitute a final order
in accordance with the terms of Sec. 209.33.
[43 FR 34132, Aug. 3, 1978, as amended at 57 FR 5345, Feb. 13, 1992]
[Code of Federal Regulations]
[Title 40, Volume 16, Parts 190 to 259]
[Revised as of July 1, 1998]
[CITE: 40CFR209.25]
[Page 156]
TITLE 40--PROTECTION OF ENVIRONMENT
CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
PART 209--RULES OF PRACTICE GOVERNING PROCEEDINGS UNDER THE NOISE CONTROL ACT OF 1972--Table of Contents
Subpart A--Rules of Practice Governing Hearings for Orders Issued Under
Section 11(d) of the Noise Control Act
Sec. 209.25 Accelerated decision; dismissal.
(a) The administrative law judge, upon motion of any party or sua
sponte, may at any time render an accelerated decision in favor of the
Agency or the respondent as to all or any part of the proceeding,
without further hearing or upon such limited additional evidence such as
affidavits as he or she may require, or dismiss any party with
prejudice, under any of the following conditions:
(1) Failure to state a claim upon which relief can be granted, or
direct or collateral estoppel;
(2) No genuine issue of material fact exists and a party is entitled
to judgment as a matter of law, as to all or any part of a proceeding;
or
(3) Such other reasons as are just, including failure to obey a
procedural order of the administrative law judge.
(b) If under this section an accelerated decision is issued as to
all the issues and claims joined in the proceedings, the decision shall
be treated as the decision of the administrative law judge as provided
in Sec. 209.30.
(c) If under this section, judgment is rendered on less than all
issues or claims in the proceeding, the administrative law judge shall
determine what material facts exist without substantial controversy and
what material facts are actually and in good faith controverted. The
administrative law judge shall thereupon issue an order specifying the
facts which appear without substantial controversy, and the issues and
claims upon which the hearing will proceed.
[Code of Federal Regulations]
[Title 40, Volume 16, Parts 190 to 259]
[Revised as of July 1, 1998]
[CITE: 40CFR209.26]
[Page 156-157]
TITLE 40--PROTECTION OF ENVIRONMENT
CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
PART 209--RULES OF PRACTICE GOVERNING PROCEEDINGS UNDER THE NOISE CONTROL ACT OF 1972--Table of Contents
Subpart A--Rules of Practice Governing Hearings for Orders Issued Under
Section 11(d) of the Noise Control Act
Sec. 209.26 Evidence.
(a) The official transcripts and exhibits, together with all papers
and requests filed in the proceeding, shall constitute the record.
Evidence may be received at the hearing even though inadmissible under
the rules of evidence applicable to judicial proceedings, provided it is
relevant, competent and material and not unduly repetitious. Immaterial
or irrelevant parts of an admissible document shall be segregated and
excluded so far as practicable. The weight to be given evidence shall be
determined by its reliability and probative value.
(b) Witnesses shall be examined orally, under oath or affirmation,
except as otherwise provided in these rules of practice or by the
administrative law judge. Parties shall have the right to cross-examine
a witness who appears at the hearing provided that such cross-
examination is not unduly repetitious.
[[Page 157]]
(c) Rulings of the administrative law judge on the admissibility of
evidence, the propriety of examination and cross-examination and other
procedural matters shall appear in the record.
(d) Parties shall automatically be presumed to have taken exception
to an adverse ruling.
[Code of Federal Regulations]
[Title 40, Volume 16, Parts 190 to 259]
[Revised as of July 1, 1998]
[CITE: 40CFR209.27]
[Page 157]
TITLE 40--PROTECTION OF ENVIRONMENT
CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
PART 209--RULES OF PRACTICE GOVERNING PROCEEDINGS UNDER THE NOISE CONTROL ACT OF 1972--Table of Contents
Subpart A--Rules of Practice Governing Hearings for Orders Issued Under
Section 11(d) of the Noise Control Act
Sec. 209.27 Interlocutory appeal.
(a) An interlocutory appeal may be taken to the Environmental
Appeals Board either (1) with the consent of the administrative law
judge where he or she certifies on the record or in writing that the
allowance of an interlocutory appeal is clearly necessary to prevent
exceptional delay, expense or prejudice to any party or substantial
detriment to the public interest, or (2) absent the consent of the
administrative law judge, by permission of the Environmental Appeals
Board.
(b) Applications for interlocutory appeal of any ruling or order of
the administrative law judge may be filed with the administrative law
judge within 5 days of the issuance of the ruling or order being
appealed. Answers by other parties may be filed within 5 days of the
service of such applications.
(c) Applications to file such appeals absent consent of the
administrative law judge shall be filed with the Environmental Appeals
Board within 5 days of the denial of any appeal by the administrative
law judge.
(d) The Environmental Appeals Board will consider the merits of the
appeal on the application and answers. No oral argument will be heard
nor other briefs filed unless the Environmental Appeals Board directs
otherwise.
(e) Except under extraordinary circumstances as determined by the
administrative law judge, the taking of an interlocutory appeal will not
stay the hearing.
[43 FR 34132, Aug. 3, 1978, as amended at 57 FR 5345, Feb. 13, 1992]
[Code of Federal Regulations]
[Title 40, Volume 16, Parts 190 to 259]
[Revised as of July 1, 1998]
[CITE: 40CFR209.28]
[Page 157]
TITLE 40--PROTECTION OF ENVIRONMENT
CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
PART 209--RULES OF PRACTICE GOVERNING PROCEEDINGS UNDER THE NOISE CONTROL ACT OF 1972--Table of Contents
Subpart A--Rules of Practice Governing Hearings for Orders Issued Under
Section 11(d) of the Noise Control Act
Sec. 209.28 Record.
(a) Hearings shall be reported and transcribed verbatim,
stenographically or otherwise, and the original transcript shall be part
of the record and the sole official transcript. Copies of the record
shall be filed with the hearing clerk and made available during Agency
business hours for public inspection. Any person who desires a copy of
the record of the hearing or any part of it shall be entitled to it upon
payment of the cost.
(b) The official transcripts and exhibits, together with all papers
and requests filed in the proceeding, shall constitute the record.
[Code of Federal Regulations]
[Title 40, Volume 16, Parts 190 to 259]
[Revised as of July 1, 1998]
[CITE: 40CFR209.29]
[Page 157]
TITLE 40--PROTECTION OF ENVIRONMENT
CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
PART 209--RULES OF PRACTICE GOVERNING PROCEEDINGS UNDER THE NOISE CONTROL ACT OF 1972--Table of Contents
Subpart A--Rules of Practice Governing Hearings for Orders Issued Under
Section 11(d) of the Noise Control Act
Sec. 209.29 Proposed findings, conclusions.
(a) Within 20 days of the filing of the record with the hearing
clerk as provided in Sec. 209.28, or within such longer time as may be
fixed by the administrative law judge, any party may submit for the
consideration of the administrative law judge proposed findings of fact,
conclusions of law, and a proposed rule or order, together with briefs
in support of it. Such proposals shall be in writing, shall be served
upon all parties, and shall contain adequate references to the record
and authorities relied on.
(b) The record shall show the administrative law judge's ruling on
the proposed findings and conclusions except when the administrative law
judge's order disposing of the proceedings otherwise informs the parties
of the action taken by him or her thereon.
[Code of Federal Regulations]
[Title 40, Volume 16, Parts 190 to 259]
[Revised as of July 1, 1998]
[CITE: 40CFR209.30]
[Page 157-158]
TITLE 40--PROTECTION OF ENVIRONMENT
CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
PART 209--RULES OF PRACTICE GOVERNING PROCEEDINGS UNDER THE NOISE CONTROL ACT OF 1972--Table of Contents
Subpart A--Rules of Practice Governing Hearings for Orders Issued Under
Section 11(d) of the Noise Control Act
Sec. 209.30 Decision of the administrative law judge.
(a) The administrative law judge shall issue and file with the
hearing clerk his or her decision as soon as practicable after the
period for filing proposed findings as provided for in Sec. 209.29 has
expired.
(b) The administrative law judge's decision shall become the
decision of the Environmental Appeals Board (1) when no notice of
intention to appeal as described in Sec. 209.31 is filed, 30 days after
its issuance, unless in the interim the Environmental Appeals Board
shall have taken action to review or stay the effective date of the
decision; or (2) when a notice of intention to appeal is filed but the
appeal is not perfected as required by Sec. 209.31, 5 days after the
period allowed for perfection of an appeal has expired unless within
that 5 day period, the Environmental Appeals Board
[[Page 158]]
has taken action to review or stay the effective date of the decision.
(c) The administrative law judge's decision shall include a
statement of findings and conclusions, as well as the reasons or basis
therefore, upon all the material issues of fact or law presented on the
record and an appropriate rule or order. The decision shall be supported
by a preponderance of the evidence and based upon a consideration of the
whole record.
(d) At any time prior to issuing his or her decision, the
administrative law judge may reopen the proceeding for the reception of
further evidence.
[43 FR 34132, Aug. 3, 1978, as amended at 57 FR 5345, Feb. 13, 1992]
[Code of Federal Regulations]
[Title 40, Volume 16, Parts 190 to 259]
[Revised as of July 1, 1998]
[CITE: 40CFR209.31]
[Page 158]
TITLE 40--PROTECTION OF ENVIRONMENT
CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
PART 209--RULES OF PRACTICE GOVERNING PROCEEDINGS UNDER THE NOISE CONTROL ACT OF 1972--Table of Contents
Subpart A--Rules of Practice Governing Hearings for Orders Issued Under
Section 11(d) of the Noise Control Act
Sec. 209.31 Appeal from the decision of the administrative law judge.
(a) Any party to a proceeding may appeal the administrative law
judge's decision to the Environmental Appeals Board: Provided, That
within 10 days after the administrative law judge's decision is issued,
the party files a notice of intention to appeal, and within 30 days of
the decision the party files an appeal brief.
(b) When an appeal is taken from the decision of the administrative
law judge, any party may file a brief with respect to such appeal. The
brief shall be filed within 20 days of the date of the filing of the
appellant's brief.
(c) Any brief filed under this section shall contain, in the order
indicated:
(1) A subject index of the matter in the brief, with page
references, and a table of cases (alphabetically arranged), textbooks,
statutes, and other material cited, with page references thereto;
(2) A specification of the issues which will be argued;
(3) The argument presenting clearly the points of fact and law
relied upon in support of the position taken on each issue, with
specific page references to the record and the legal or other material
relied upon; and
(4) A proposed form of rule or order for the Environmental Appeals
Board's consideration if different from the rule or order contained in
the administrative law judge's decision.
(d) Briefs shall not exceed 40 pages without leave of the
Environmental Appeals Board.
(e) The Environmental Appeals Board may allow oral argument in its
discretion.
[43 FR 34132, Aug. 3, 1978, as amended at 57 FR 5345, Feb. 13, 1992]
[Code of Federal Regulations]
[Title 40, Volume 16, Parts 190 to 259]
[Revised as of July 1, 1998]
[CITE: 40CFR209.32]
[Page 158]
TITLE 40--PROTECTION OF ENVIRONMENT
CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
PART 209--RULES OF PRACTICE GOVERNING PROCEEDINGS UNDER THE NOISE CONTROL ACT OF 1972--Table of Contents
Subpart A--Rules of Practice Governing Hearings for Orders Issued Under
Section 11(d) of the Noise Control Act
Sec. 209.32 Review of the administrative law judge's decision in absence of appeal.
(a) If, after the expiration of the period for taking an appeal
under Sec. 209.31, no notice of intention to appeal the decision of the
administrative law judge has been filed, or if filed, not perfected, the
hearing clerk shall so notify the Environmental Appeals Board.
(b) The Environmental Appeals Board, upon receipt of notice from the
hearing clerk that no notice of intention to appeal has been filed, or
if filed, not perfected pursuant to Sec. 209.31, may, on its own motion,
within the time limits specified in Sec. 209.30(b), review the decision
of the administrative law judge. Notice of the Environmental Appeals
Board's intention to review the decision of the administrative law judge
shall be given to all parties and shall set forth the scope of such
review and the issues which shall be considered and shall make provision
for filing of briefs.
[57 FR 5345, Feb. 13, 1992]
[Code of Federal Regulations]
[Title 40, Volume 16, Parts 190 to 259]
[Revised as of July 1, 1998]
[CITE: 40CFR209.33]
[Page 158-159]
TITLE 40--PROTECTION OF ENVIRONMENT
CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
PART 209--RULES OF PRACTICE GOVERNING PROCEEDINGS UNDER THE NOISE CONTROL ACT OF 1972--Table of Contents
Subpart A--Rules of Practice Governing Hearings for Orders Issued Under
Section 11(d) of the Noise Control Act
Sec. 209.33 Decision on appeal or review.
(a) Upon appeal from or review of the administrative law judge's
decision, the Environmental Appeals Board shall consider such parts of
the record as are cited or as may be necessary to resolve the issues
presented and, in addition shall to the extent necessary or desirable
exercise all the powers which the Environmental Appeals Board could have
exercised if it had presided at the hearing.
(b) The Environmental Appeals Board shall render a decision as
expeditiously as possible. The Environmental Appeals Board shall adopt,
modify, or set aside the findings, conclusions, and rule or order
contained in the decision of the administrative law judge and
[[Page 159]]
shall set forth in its decision a statement of the reasons or bases for
its action. The Environmental Appeals Board's decision shall be the
final order in the proceeding.
(c) In those cases where the Environmental Appeals Board determines
that it should have further information or additional views of the
parties as to the form and content of the rule or order to be issued,
the Environmental Appeals Board, in its discretion, may withhold final
action pending the receipt of such additional information or views, or
may remand the case to the administrative law judge.
[57 FR 5345, Feb. 13, 1992]
[Code of Federal Regulations]
[Title 40, Volume 16, Parts 190 to 259]
[Revised as of July 1, 1998]
[CITE: 40CFR209.34]
[Page 159]
TITLE 40--PROTECTION OF ENVIRONMENT
CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
PART 209--RULES OF PRACTICE GOVERNING PROCEEDINGS UNDER THE NOISE CONTROL ACT OF 1972--Table of Contents
Subpart A--Rules of Practice Governing Hearings for Orders Issued Under
Section 11(d) of the Noise Control Act
Sec. 209.34 Reconsideration.
Within five (5) days after service of the Environmental Appeals
Board's decision, any party may file a petition for reconsideration of
such decision, setting forth the relief desired and the grounds in
support thereof. Petitions for reconsideration under this provision
shall be directed to, and decided by, the Environmental Appeals Board.
Petitions for reconsideration directed to the Administrator, rather than
to the Environmental Appeals Board, will not be considered, except in
cases that the Environmental Appeals Board has referred to the
Administrator's pursuant to Sec. 209.3(k) and in which the Administrator
has issued the final order. Any petition filed under this subsection
must be confined to new questions raised by the decision or final order
and upon which the petitioner had no opportunity to argue before the
administrative law judge or the Environmental Appeals Board. Any party
desiring to oppose a petition shall file an answer thereto within five
(5) days after service of the petition. The filing of a petition for
reconsideration shall not operate to stay the effective date of the
decision or order.
[57 FR 5345, Feb. 13, 1992]
[Code of Federal Regulations]
[Title 40, Volume 16, Parts 190 to 259]
[Revised as of July 1, 1998]
[CITE: 40CFR209.35]
[Page 159]
TITLE 40--PROTECTION OF ENVIRONMENT
CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
PART 209--RULES OF PRACTICE GOVERNING PROCEEDINGS UNDER THE NOISE CONTROL ACT OF 1972--Table of Contents
Subpart A--Rules of Practice Governing Hearings for Orders Issued Under
Section 11(d) of the Noise Control Act
Sec. 209.35 Conclusion of hearing.
(a) If no appeal has been taken from the administrative law judge's
decision before the period for taking an appeal under Sec. 209.31 has
expired, and the period for review by the Environmental Appeals Board on
its own motion under Sec. 209.30 has expired, and the Environmental
Appeals Board does not move to review such decision, the hearing will be
deemed to have ended at the expiration of all periods allowed for such
appeal and review.
(b) If an appeal of the administrative law judge's decision is taken
under Sec. 209.31, or if, in the absence of such appeal, the
Environmental Appeals Board moves to review the decision of the
administrative law judge under Sec. 209.32, the hearing will be deemed
to have ended upon the rendering of a final decision by the
Environmental Appeals Board.
[57 FR 5346, Feb. 13, 1992]
[Code of Federal Regulations]
[Title 40, Volume 16, Parts 190 to 259]
[Revised as of July 1, 1998]
[CITE: 40CFR209.36]
[Page 159]
TITLE 40--PROTECTION OF ENVIRONMENT
CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
PART 209--RULES OF PRACTICE GOVERNING PROCEEDINGS UNDER THE NOISE CONTROL ACT OF 1972--Table of Contents
Subpart A--Rules of Practice Governing Hearings for Orders Issued Under
Section 11(d) of the Noise Control Act
Sec. 209.36 Judicial review.
(a) The Administrator hereby designates the general counsel,
Environmental Protection Agency as the officer upon whom copy of any
petition for judicial review shall be served. That officer shall be
responsible for filing in the court the record on which the order of the
Environmental Appeals Board is based.
(b) Before forwarding the record to the court, the Agency shall
advise the petitioner of the costs of preparing it and as soon as
payment to cover fees is made shall forward the record to the court.
[43 FR 34132, Aug. 3, 1978, as amended at 57 FR 5346, Feb. 13, 1992]