40 C.F.R. § 178.32

Rulings on requests for hearing

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(a) In the case of each request for an evidentiary hearing that was not denied under § 178.30(a) or (b), the Administrator will determine whether such a hearing on one or more of the objections is justified, and will publish in the Federal Register the determination in an order issued under § 178.37 or a Notice of Hearing issued under § 179.20 of this chapter. If some requests for a hearing are denied and others pertaining to the same order or regulation are granted, the denial order and the hearing notice may be combined into a single document and shall be issued at the same time unless the Administrator for good cause determines otherwise.

(b) A request for an evidentiary hearing will be granted if the Administrator determines that the material submitted shows the following:

(1) There is a genuine and substantial issue of fact for resolution at a hearing. An evidentiary hearing will not be granted on issues of policy or law.

(2) There is a reasonable possibility that available evidence identified by the requestor would, if established, resolve one or more of such issues in favor of the requestor, taking into account uncontested claims or facts to the contrary. An evidentiary hearing will not be granted on the basis of mere allegations, denials, or general descriptions of positions and contentions, nor if the Administrator concludes that the data and information submitted, even if accurate, would be insufficient to justify the factual determination urged.

(3) Resolution of the factual issue(s) in the manner sought by the person requesting the hearing would be adequate to justify the action requested. An evidentiary hearing will not be granted on factual issues that are not determinative with respect to the action requested. For example, a hearing will not be granted if the Administrator concludes that the action would be the same even if the factual issue were resolved in the manner sought.

(c) Where appropriate, the Administrator will make rulings on any issues raised by an objection which are necessary for resolution prior to determining whether a request for an evidentiary hearing should be granted.

Notes of Decisions

Cited in 3 cases, 2010–2011 · leading case: Nat'l Corn Growers Ass'n v. Env't Prot. Agency, 613 F.3d 266 (D.C. Cir. 2010).

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Nat'l Corn Growers Ass'n v. Env't Prot. Agency, 613 F.3d 266 (D.C. Cir. 2010). · cites it 2× “40 C.F.R. § 178.32 (b). In 2006 the EPA concluded, in a dietary risk assessment, that human exposure to carbofuran, a pesticide used to control insect infestations in a number of crops, is “above the Agency’s level of concern.”

Nat. Resources Def. Council v. United States Env't Prot. Agency, 658 F.3d 200 (2d Cir. 2011). “40 C.F.R. § 178.32 (b). After considering the objections and requests for a hearing, EPA must issue a final order stating the action taken on each objection and request for a hearing.”

Nat. Res. Def. Council v. Epa (2d Cir. 2011). “40 C.F.R. § 178.32 (b). After considering the objections and requests for a hearing, EPA must issue a final order stating the action taken on each objection and request for a hearing.”

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