[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]



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