[Title 40 CFR 60.539]
[Code of Federal Regulations (annual edition) - July 1, 2009 Edition]
[Title 40 - PROTECTION OF ENVIRONMENT]
[Chapter I - ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)]
[Subchapter C - AIR PROGRAMS (CONTINUED)]
[Part 60 - STANDARDS OF PERFORMANCE FOR NEW STATIONARY SOURCES--]
[Subpart Aaa - Standards of Performance for New Residential Wood Heaters]
[Sec. 60.539 - Hearing and appeal procedures.]
[From the U.S. Government Printing Office]


40PROTECTION OF ENVIRONMENT62009-07-012009-07-01false60.539Sec. 60.539PROTECTION OF ENVIRONMENTENVIRONMENTAL PROTECTION AGENCY (CONTINUED)AIR PROGRAMS (CONTINUED)STANDARDS OF PERFORMANCE FOR NEW STATIONARY SOURCES--Standards of Performance for New Residential Wood Heaters
Sec. 60.539  Hearing and appeal procedures.

    (a)(1) In any case where the Administrator--
    (i) Denies an application under Sec. 60.530(c) or Sec. 60.533(e),
    (ii) Issues a notice of revocation of certification under Sec. 
60.533(l),
    (iii) Denies an application for laboratory accreditation under Sec. 
60.535, or
    (iv) Issues a notice of revocation of laboratory accreditation under 
Sec. 60.535(e), the manufacturer or laboratory affected may request a 
hearing under this section within 30 days following receipt of the 
required notification of the action in question.
    (2) In any case where the Administrator issues a notice of 
revocation under Sec. 60.533(p), the manufacturer may request a hearing 
under this section with the time limits set out in Sec. 60.533(p)(5).
    (b) Any hearing request shall be in writing, shall be signed by an 
authorized representative of the petitioning manufacturer or laboratory, 
and shall include a statement setting forth with particularity the 
petitioner's objection to the Administrator's determination or proposed 
determination.
    (c)(1) Upon receipt of a request for a hearing under paragraph (a) 
of this section, the Administrator shall request the Chief 
Administrative Law Judge to designate an Administrative Law Judge as 
Presiding Officer for the hearing. If the Chief Administrative Law Judge 
replies that no Administrative Law Judge is available to perform this

[[Page 571]]

function, the Administrator shall designate a Presiding Officer who has 
not had any prior responsibility for the matter under review, and who is 
not subject to the direct control or supervision of someone who has had 
such responsibility.
    (2) The hearing shall commence as soon as practicable at a time and 
place fixed by the Presiding Officer.
    (3)(i) A motion for leave to intervene in any proceeding conducted 
under this section must set forth the grounds for the proposed 
intervention, the position and interest of the movant and the likely 
impact that intervention will have on the expeditious progress of the 
proceeding. Any person already a party to the proceeding may file an 
answer to a motion to intervene, making specific reference to the 
factors set forth in the foregoing sentence and paragraph (c)(3)(iii) of 
this section within ten (10) days after service of the motion for leave 
to intervene.
    (ii) A motion for leave to intervene in a proceeding must ordinarily 
be filed before the first prehearing conference or, in the absence of a 
prehearing conference, prior to the setting of a time and place for a 
hearing. Any motion filed after that time must include, in addition to 
the information set forth in paragraph (c)(3)(i) of this section, a 
statement of good cause for the failure to file in a timely manner. The 
intervenor shall be bound by any agreements, arrangements and other 
matters previously made in the proceeding.
    (iii) A motion for leave to intervene may be granted only if the 
movant demonstrates that his presence in the proceeding would not unduly 
prolong or otherwise prejudice the adjudication of the rights of the 
original parties, and that movant may be adversely affected by a final 
order. The intervenor shall become a full party to the proceeding upon 
the granting of leave to intervene.
    (iv) Persons not parties to the proceeding may move for leave to 
file amicus curiae briefs. The movant shall state his interest and the 
reasons why the proposed amicus brief is desirable. If the motion is 
granted, the Presiding Officer or Administrator shall issue an order 
setting the time for filing such brief. An amicus curia may participate 
in any briefing after his motion is granted, and shall be served with 
all briefs, reply briefs, motions, and orders relating to issues to be 
briefed.
    (4) In computing any period of time prescribed or allowed in this 
subpart, the day of the event from which the designated period begins to 
run shall not be included. Saturdays, Sundays, and Federal legal 
holidays shall be included. When a stated time expires on a Saturday, 
Sunday or legal holiday, the stated time period shall be extended to 
include the next business day.
    (d)(1) Upon his appointment the Presiding Officer shall establish a 
hearing file. The file shall consist of the notice issued by the 
Administrator under Sec. 60.530(c), Sec. 60.533(e), Sec. 60.533(l), 
Sec. 60.533(p), Sec. 60.535(a), or Sec. 60.535(e), together with any 
accompanying material, the request for a hearing and the supporting data 
submitted therewith, and all documents relating to the request for 
certification or accreditation, or the proposed revocation of either.
    (2) The hearing file shall be available for inspection by any party, 
to the extent authorized by law, at the office of the Presiding Officer, 
or other place designated by him.
    (e) Any party may appear in person, or may be represented by counsel 
or by any other duly authorized representative.
    (f)(1) The Presiding Officer upon the request of any party, or at 
his discretion, may order a prehearing conference at a time and place 
specified by him to consider the following:
    (i) Simplification of the issues,
    (ii) Stipulations, admissions of fact, and the introduction of 
documents,
    (iii) Limitation of the number of expert witnesses,
    (iv) Possibility of agreement disposing of all or any of the issues 
in dispute,
    (v) Such other matters as may aid in the disposition of the hearing, 
including such additional tests as may be agreed upon by the parties.
    (2) The results of the conference shall be reduced to writing by the 
Presiding Officer and made part of the record.
    (g)(1) Hearings shall be conducted by the Presiding Officer in an 
informal but orderly and expeditious manner.

[[Page 572]]

The parties may offer oral or written evidence, subject to the exclusion 
by the Presiding Officer of irrelevant, immaterial and repetitious 
evidence.
    (2) Witnesses will not be required to testify under oath. However, 
the Presiding Officer shall call to the attention of witnesses that 
their statements may be subject to penalties under title 18, U.S.C. 1001 
for knowingly making false statements or representations or using false 
documents in any matter within the jurisdiction of any department or 
agency of the United States.
    (3) Any witness may be examined or cross-examined by the Presiding 
Officer, the parties, or their representatives.
    (4) Hearings shall be recorded verbatim. Copies of transcripts of 
proceedings may be purchased by the applicant from the reporter.
    (5) All written statements, charts, tabulations, and similar data 
offered in evidence at the hearings shall, upon a showing satisfactory 
to the Presiding Officer of their authenticity, relevancy, and 
materiality, be received in evidence and shall constitute a part of the 
record.
    (h)(1) The Presiding Officer shall make an initial decision which 
shall include written findings and conclusions and the reasons or basis 
therefor on all the material issues of fact, law, or discretion 
presented on the record. The findings, conclusions, and written decision 
shall be provided to the parties and made a part of the record. The 
initial decision shall become the decision of the Environmental Appeals 
Board without further proceedings unless there is an appeal to the 
Environmental Appeals Board or motion for review by the Environmental 
Appeals Board. Except as provided in paragraph (h)(3) of this section, 
any such appeal shall be taken within 20 days of the date the initial 
decision was filed.
    (2) The Administrator delegates authority to the Environmental 
Appeals Board to issue final decisions in appeals filed under this 
section. 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 section referring to the Environmental 
Appeals Board shall be interpreted as referring to the Administrator. On 
appeal from or review of the initial decision, the Environmental Appeals 
Board shall have all the powers that it would have in making the initial 
decision including the discretion to require or allow briefs, oral 
argument, the taking of additional evidence or the remanding to the 
Presiding Officer for additional proceedings. The decision by the 
Environmental Appeals Board shall include written findings and 
conclusions and the reasons or basis therefor on all the material issues 
of fact, law, or discretion presented on the appeal or considered in the 
review.
    (3) In any hearing requested under paragraph (a)(2) of this section 
the Presiding Officer shall render his initial decision within 60 days 
of that request. Any appeal to the Environmental Appeals Board shall be 
taken within 10 days of the initial decision, and the Environmental 
Appeals Board shall render its decision in the appeal within 30 days of 
the filing of the appeal.

[53 FR 5873, Feb. 26, 1988, as amended at 57 FR 5328, Feb. 13, 1992]