(a) Filing and contents. After the period for filing briefs under § 22.26 has expired, the Presiding Officer shall issue an initial decision. The initial decision shall contain findings of fact, conclusions regarding all material issues of law or discretion, as well as reasons therefor, and, if appropriate, a recommended civil penalty assessment, compliance order, corrective action order, or Permit Action. Upon receipt of an initial decision, the Regional Hearing Clerk shall forward copies of the initial decision to the Environmental Appeals Board and the Assistant Administrator for the Office of Enforcement and Compliance Assurance.
(b) Amount of civil penalty. If the Presiding Officer determines that a violation has occurred and the complaint seeks a civil penalty, the Presiding Officer shall determine the amount of the recommended civil penalty based on the evidence in the record and in accordance with any penalty criteria set forth in the Act. The Presiding Officer shall consider any civil penalty guidelines issued under the Act. The Presiding Officer shall explain in detail in the initial decision how the penalty to be assessed corresponds to any penalty criteria set forth in the Act. If the Presiding Officer decides to assess a penalty different in amount from the penalty proposed by complainant, the Presiding Officer shall set forth in the initial decision the specific reasons for the increase or decrease. If the respondent has defaulted, the Presiding Officer shall not assess a penalty greater than that proposed by complainant in the complaint, the prehearing information exchange or the motion for default, whichever is less.
(c) Effect of initial decision. The initial decision of the Presiding Officer shall become a final order 45 days after its service upon the parties and without further proceedings unless:
(1) A party moves to reopen the hearing;
(2) A party appeals the initial decision to the Environmental Appeals Board;
(3) A party moves to set aside a default order that constitutes an initial decision; or
(4) The Environmental Appeals Board elects to review the initial decision on its own initiative.
(d) Exhaustion of administrative remedies. Where a respondent fails to appeal an initial decision to the Environmental Appeals Board pursuant to § 22.30 and that initial decision becomes a final order pursuant to paragraph (c) of this section, respondent waives its rights to judicial review. An initial decision that is appealed to the Environmental Appeals Board shall not be final or operative pending the Environmental Appeals Board's issuance of a final order.
Notes of Decisions
Gen. Motors Corp. v. Env't Prot. Agency, 363 F.3d 442 (D.C. Cir. 2004).
· cites it 2× “§ 6928 (b); 40 C.F.R. §§ 22.27 (d), 22.31. Alternatively, EPA can file a complaint directly in the federal district court for injunctive or other appropriate relief, see 42 U.”
Spitzer Great Lakes Ltd., Co. v. United States Env't Prot. Agency, 173 F.3d 412 (6th Cir. 1999).
· cites it 6× “The order concluded with the following statement: Pursuant to 40 C.F.R. § 22.27 (c), this initial decision shall become the final order of the Environmental Appeals Board within forty-five (45) days after its service upon the parties and without further proceeding unless (1) an…”
United States v. DiPaolo, 466 F. Supp. 2d 476 (S.D.N.Y. 2006).
“) Defendant did not appeal or otherwise respond to the orders, and, pursuant to 40 C.F.R. § 22.27 (c), the Default Order and the Addendum to Default Order became effective as a final administrative order, no later than July 29, 2004, forty-five days after it was served.”
Sultan Chemists, Inc. v. United States Env't Prot. Agency, 281 F.3d 73 (3rd Cir. 2002).
“In accordance with the rules governing EPA assessment of civil penalties, 40 C.F.R. § 22.27 (b) (2001), the PO also turned to the “FIFRA Enforcement Policy” set forth by the EPA Office of Compliance Monitoring and Office of Pesticides & Toxic Substances in the Enforcement…”
United States v. Rogers, 685 F. Supp. 201 (D. Minnesota 1987).
“Defendants still did not reply and on February 27, 1985 the AU granted the EPA’s motion for default judgment and issued an initial decision which became a final order pursuant to 40 C.F.R. § 22.27 on April 23, 1985. The initial decision contains ten findings of fact, including…”
Steeltech, Ltd. v. United States Env't Prot. Agency, 105 F. Supp. 2d 760 (W.D. Mich. 2000).
“However, both the decision of the Administrative Law Judge and the decision of the Appeals Board expressly recognized that the ERP merely provides guidance and that departure from the ERP is appropriate in certain circumstances. (See Final Decision, AR, Exhibit.”
B.J. Carney Indus. Inc. v. United States Env't Prot. Agency, 192 F.3d 917 (9th Cir. 1999).
· cites it 5× “See 40 C.F.R. § 22.27 (c) (providing that a presiding officer’s initial decision shall become final forty-five days after service unless an appeal is taken to the EAB or the EAB elects to review sua sponte).”
Taotao USA, Inc. v. United States Env't Prot. Agency (D.D.C. 2022).
“” Consolidated Rules of Practice Governing the Administrative Assessment of Civil Penalties (“CROP”), 40 C.F.R. §§ 22.27 (a)– (b). The ALJ must also “consider any civil penalty guidelines issued under the [CAA].”
Erlanson v. United States Env't Prot. Agency (D. Idaho 2022).
“2 The ALJ issued a decision and order finding Erlanson had, in fact, violated the CWA and assessed a Class II civil penalty of $6,600 pursuant to 40 C.F.R. § 22.27 and 33 U.S.C. § 1319 (g)(2)(B).”
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