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(6) Any party subject to the terms and conditions of any protective order, desiring to make use of any documents or testimony covered by the protective order, shall file a motion to the hearing officer and set forth justification for the request. The motion shall be granted upon a demonstration of good cause that the information is relevant and has significant probative value on a disputed issue of material fact in issue. In granting the motion, the hearing officer shall enter an order protecting the rights of the affected persons and parties, who have claimed that the information is confidential, by preventing any unnecessary disclosure of the information. The hearing officer may require that the information be presented in a closed meeting, with attendance limited, as necessary and practicable, to specified representatives of the parties.
(7) The hearing office shall make a record of all closed meetings that are ordered under this section. The record shall be sealed and made available, upon appropriate order, to the executive officer, on reconsideration, or to the court on review.
(8) If the hearing officer denies a motion for protective order or grants a protective order only in part, the order shall not become effective until 10 days after the date the order is served. In the interim, a party to the proceeding or third-party holder of the asserted confidential information adversely affected by the order may seek appropriate interlocutory relief in a court of competent jurisdiction.
Note: Authority cited: Sections 39600, 39601, 42410, 43023, 43028, 43031(a) and 44011.6(m), Health and Safety Code. Reference:Mathews v. Eldridge, 424 U.S. 319 (1976); Sections 42410, 43023, 43028, 43031(a) and 44011.6, Health and Safety Code; and Sections 11185, 11191 and 11511, Government Code.
s 60075.27. Proceeding to Compel Discovery.
(a) Any party claiming that its request for discovery pursuant to this section has not been complied with or that the opposing party has failed to comply with a stipulated agreement to provide discovery may serve and file with the hearing officer a motion to compel the party who has refused or failed to produce the requested or stipulated discovery to comply. The motion shall state facts showing the party has failed or refused to comply with a discovery request or stipulation, a description of the matters sought to be discovered, the reason or reasons why the matter is discoverable, that a reasonable and good faith attempt to contact the noncomplying party for an informal resolution of the issue has been made, and the grounds of the noncomplying party's refusal so far as known to the moving party.
(b) The motion shall be filed within 15 days after the date the requested materials were to be made available for inspection and copying or the date a deposition was scheduled to take place and served upon the party who has failed or refused to provide discovery.
(c) The hearing on the motion to compel discovery shall be held within 15 days after the motion is filed, or a later time that the hearing officer may on his or her own motion for good cause determine. The party who has refused or failed to provide discovery shall have the right to serve and file a written answer or other response which shall be due at the hearing office and personally served on all parties at least three days prior to the date set for hearing.
(d) Where the matter sought to be discovered is under the custody or control of the party who has refused or failed to provide discovery and that party asserts that the matter is not a discoverable matter under this section, or is privileged against disclosure, the hearing officer may order that the party in custody lodge with the hearing office the matters identified in subdivision (b) of section 915 of the Evidence Code and the hearing officer shall examine the matters in accordance with those provisions.
(e) The hearing officer shall decide the case on the matters examined in a closed meeting, the papers filed by the parties, and such oral argument and additional evidence as the hearing officer may allow.
(f) Unless otherwise stipulated by the parties, the hearing officer shall no later than 15 days after the hearing make its order denying or granting the motion. The order shall be in writing setting forth the matters the moving party is entitled to discover. The hearing office shall serve a copy of the order by mail upon the parties. Where the order grants the motion in whole or in part, the order shall not become effective until 10 days after the date the order is served. Where the order denies relief to the moving party, the order shall be effective on the date it is served.
(g) If after receipt of an order directing compliance with the provisions of these rules regarding discovery, a party fails, without good cause, to comply with the order, the hearing officer may draw adverse inferences against that party and may prevent that party from introducing any evidence that had been requested and not produced during discovery into the administrative record.
Note: Authority cited: Sections 39600, 39601, 42410, 43023, 43028, 43031(a) and 44011.6(m), Health and Safety Code. Reference:Mathews v. Eldridge, 424 U.S. 319 (1976); Sections 42410, 43023, 43028, 43031(a) and 44011.6, Health and Safety Code; and Sections 11186-11188 and 11507.7, Government Code.
s 60075.28. Subpoena and Subpoena Duces Tecum.
(a) Subpoenas and subpoenas duces tecum may be issued for attendance at a hearing and for production of documents at any reasonable time and place or at a hearing.
(b) At the request of a party, subpoenas and subpoenas duces tecum shall be issued by the hearing officer assigned to a proceeding; or the general counsel or executive officer of the citing party; or, if represented by an attorney, the attorney of record for a party in accordance with sections 1985-1985.4 of the California Code of Civil Procedure.
(c) The custodian of documents that are the subject of a subpoena duces tecum may satisfy the subpoena by delivery of the documents or a copy of the documents, or by making the documents available for inspection or copying, together with an affidavit in compliance with section 1561 of the Evidence Code.
(d) The process extends to all parts of the state and shall be served in accordance with sections 1987 and 1988 of the California Code of Civil Procedure. A subpoena or subpoena duces tecum may also be delivered by certified mail return receipt requested or by messenger. Service by messenger shall be effected when the witness acknowledges receipt of the subpoena to the sender, by telephone, by mail, or in person, and identifies himself or herself either by reference to date of birth and driver's license number or Department of Motor Vehicles identification number, or the sender may verify receipt of the subpoena by obtaining other identifying information from the recipient. The sender shall make a written notation of the acknowledgment. A subpoena issued and acknowledged pursuant to this section has the same force and effect as a subpoena personally served. Failure to comply with a subpoena issued and acknowledged pursuant to this section may be punished as a contempt and the subpoena may so state. A party requesting a continuance based upon the failure of a witness to appear at the time and place required for the appearance or testimony pursuant to a subpoena, shall prove that the party has complied with this section. The continuance shall only be granted for a period of time that would allow personal service of the subpoena and in no event longer than that allowed by law.
(e) No witness is obliged to attend unless the witness is a resident of the state at the time of service.
(f) Upon timely motion of a party or witness, or upon his or her own motion, after notice to the parties and an opportunity to be heard and upon a showing of good cause, the hearing officer may order the quashing of a subpoena or subpoena duces tecum entirely, may modify it, or may direct compliance with it upon other terms or conditions. In addition, the hearing officer may make any other order as may be appropriate to protect a party or witness from unreasonable or oppressive demands.
(g) The state board may quash a subpoena or a subpoena duces tecum that it has issued on its own motion.
(h)(1) In the case of the production of a party to the record of a proceeding or of a person for whose benefit a proceeding is prosecuted or defended, the service of a subpoena on the witness is not required if written notice requesting the witness to attend, with the time and place of the hearing, is served on the representative of the party or person.
(2) Service of written notice to attend under this section shall be made in the manner and is subject to the conditions provided in section 1987 of the California Code of Civil Procedure for service of written notice to attend in a civil action or proceeding.
(i) A witness other than an employee of the state or a political subdivision thereof appearing pursuant to a subpoena or a subpoena duces tecum, other than a party, shall receive the same mileage, and appearance fees allowed by law; such fees are to be paid by the party at whose request the witness is subpoenaed.
Note: Authority cited: Sections 39600, 39601, 42410, 43023, 43028, 43031(a) and 44011.6(m), Health and Safety Code. Reference:Mathews v. Eldridge, 424 U.S. 319 (1976); Sections 42410, 43023, 43028, 43031(a) and 44011.6, Health and Safety Code; Sections 11186-11188, 11450.05-11450.30, Government Code; Section 1561, Evidence Code, and Sections 1985-1985.4, 1987 and 1988, California Code of Civil Procedure.
s 60075.29. Contempt.
(a) If any person in proceedings before the hearing officer disobeys or resists any lawful order or refuses to respond to a subpoena, subpoena duces tecum, or refuses to take the oath or affirmation as a witness or thereafter refuses to be examined, or is guilty of misconduct during a hearing or in its immediate vicinity as to obstruct the proceedings, the hearing officer may certify the facts to the Superior Court in and for the county where the proceedings are held for contempt proceedings pursuant to Government Code sections 11455.20, and 11186 through 11188.
(b) Notwithstanding the above, the hearing officer may order a party, a party's representative or both, to pay reasonable expenses, including authorized representation fees, incurred by another party as a result of bad faith actions or tactics that are frivolous or solely intended to cause unnecessary delay.
(1) "Actions or tactics" include, but are not limited to, the making or opposing of motions; the failure to comply with a discovery request or subpoena; or the failure to comply with a lawful order of the hearing officer.
(2) "Frivolous" means:
(A) Totally and completely without merit, or
(B) For the sole purpose of harassing an opposing party.
(c) An order for sanctions may be oral, on the record, or in writing and shall set forth the factual findings which are the basis for the imposition of sanctions.
(1) In determining reasonable expenses, the party or parties to whom payment is to be made shall, at the hearing officer's discretion, either make a statement on the record under oath or submit a written declaration under penalty of perjury setting forth with specificity the expenses incurred as a result of the other party's conduct.
(2) Within 5 days of the receipt of the hearing officer's order for the payment of expenses, a party or representative may, on grounds of hardship, request reconsideration from the hearing officer issuing the order. The request for reconsideration shall be filed in writing, and include a declaration under penalty of perjury.
(d) The order or denial of an order to pay expenses under paragraph (b) is subject of procedural review in the same manner as a final decision pursuant to Subarticle 12.
Note: Authority cited: Sections 39600, 39601, 42410, 43023, 43028, 43031(a) and 44011.6(m), Health and Safety Code. Reference:Mathews v. Eldridge, 424 U.S. 319 (1976); Sections 42410, 43023, 43028, 43031(a) and 44011.6, Health and Safety Code; and Section 11525, Government Code.
s 60075.30. Time and Place of Hearing.
(a) Within 30 days of the executive officer deeming the request for hearing complete and assigning the case to the appropriate hearing office, the hearing office shall schedule the hearing date. A matter shall be scheduled to be heard as soon as practicable, but no later than 90 days after assignment of the case to the hearing office.
(b) The hearing office shall deliver or mail a notice of hearing to all parties at least 30 days prior to the hearing. The notice shall be in the form specified in section 11509 of the Government Code.
(c) The hearing officer may, on his or her own motion or upon request of any party accompanied by a showing of good cause, grant such delays or continue a hearing to another time or place as may be necessary or desirable in the interest of fairly resolving the case.
(1) A party shall apply to the hearing officer for a continuance not less than 5 days prior to the scheduled hearing.
(2) When a continuance is ordered during a hearing, the hearing officer shall give written notice of the time and place of the continued hearing.
(d) The hearing office shall set the place of hearing at a location as near as practicable to the place where the citee resides or maintains a place of business in California. If the citee does not reside or maintain a place of business in California, the hearing shall be in Sacramento. The hearing office may establish hearing locations anywhere in the state; at a minimum one hearing location shall be established in Sacramento and one in the Los Angeles area.
(e) Upon the motion of any party and a showing of good cause, or upon the motion of the hearing officer, and in the absence of an objection from any party, the hearing officer may exercise discretion to conduct all or part of a hearing by telephone or other electronic means.
(1) In granting such a motion, the hearing officer must be assured that each participant in the hearing has an opportunity to participate in and to hear the entire proceeding while it is taking place and to observe all exhibits fully.
(2) The hearing officer may direct the party who has requested the alternative method to make the necessary arrangements and be responsible for any associated costs.
Note: Authority cited: Sections 39600, 39601, 42410, 43023, 43028, 43031(a) and 44011.6(m), Health and Safety Code. Reference:Mathews v. Eldridge, 424 U.S. 319 (1976); Sections 42410, 43023, 43028, 43031(a) and 44011.6, Health and Safety Code; and Sections 11509 and 11440.30, Government Code.
s 60075.31. Consolidation and Separation of Cases.
(a) The hearing officer may consolidate for hearing and decision any number of proceedings involving the same citee.
(b) Upon motion of a party or upon his or her own motion, the hearing officer may consolidate for hearing and decision any number of proceedings involving common issues of law or fact where consolidation would expedite and simplify consideration of the issues and would not adversely affect the rights of parties engaged in otherwise separate proceedings.
(c) Upon the motion of a party or upon the hearing officer's own motion, the hearing officer may, in furtherance of convenience or to avoid prejudice or when separate hearings will be conducive to expedition and economy, order a separate hearing of any issue, including an issue raised in the notice of defense, or of any number of issues.
Note: Authority cited: Sections 39600, 39601, 42410, 43023, 43028, 43031(a) and 44011.6(m), Health and Safety Code. Reference:Mathews v. Eldridge, 424 U.S. 319 (1976); and Sections 42410, 43023, 43028, 43031(a) and 44011.6, Health and Safety Code.
s 60075.32. Failure to Appear.
(a) If after service of a notice of hearing, including notice of consolidated hearing or continuance, a party fails to appear at a hearing either in person or by representative, the hearing officer may take the proceeding off calendar, or may, at the request of a party or on his or her own motion, issue a default order in accordance with section 60075.38 of these rules.
Note: Authority cited: Sections 39600, 39601, 42410, 43023, 43028, 43031(a) and 44011.6(m), Health and Safety Code. Reference:Mathews v. Eldridge, 424 U.S. 319 (1976); and Sections 42410, 43023, 43028, 43031(a) and 44011.6, Health and Safety Code.
s 60075.33. Conduct of Hearing.
(a) The hearing shall be presided over by a hearing officer and shall be conducted in the English language.
(b) The hearing officer shall conduct a fair and impartial hearing in which each party has a reasonable opportunity to be heard and to present evidence.
(c) Each party to the proceeding shall have these rights: To call and examine witnesses; to introduce exhibits; to question opposing witnesses on any matter relevant to the issues even though that matter was not covered in the direct examinations; to impeach any witness regardless of which party first called the witness to testify; and to rebut the opposing evidence against him. If a party does not testify on his or her behalf, the party may be called and examined as if under cross-examination.
(d) The citing party shall present the citation and the evidence supporting its issuance, and any other material that is pertinent to the issue to be determined by the hearing officer. The citee has the right to examine, respond to, or rebut the citation and any proffered evidence and material. The citee may offer any documents, testimony, or other exculpatory evidence which bears on appropriate issues, or may be relevant to the penalty amount.
(e) At the close of citee's presentation of evidence, the parties respectively have the right to introduce rebuttal evidence that is necessary to resolve disputed issues of material fact, subject to any limits imposed by the hearing officer pursuant to subparagraph (f)(1) below.
(f) The taking of evidence in a hearing shall be controlled by the hearing officer in the manner best suited to ascertain the facts and safeguard the rights of the parties. Prior to taking evidence, the hearing officer shall define the issues and the order in which evidence will be received.
(g) The hearing officer may:
(1) Limit the number of witnesses and the scope and extent of any direct examination, cross-examination, or rebuttal testimony, as necessary, to protect the interests of justice and conduct a reasonably expeditious hearing;
(2) Require the authentication of any written exhibit or statement; and
(3) Call and examine a party or witness and may, on his or her own motion, admit any relevant and material evidence.
(4) Exclude persons whose conduct impedes the orderly conduct of the hearing;
(5) Restrict attendance because of the physical limitations of the hearing facility; or
(6) Take other action to promote due process or the orderly conduct of the hearing.
(h) The taking of evidence in a hearing shall be controlled by the hearing officer in the manner best suited to ascertain the facts and safeguard the rights of the parties. Prior to taking evidence, the hearing officer shall define the issues and the order in which evidence will be received.
(i) Hearings shall be recorded electronically. The recording made by the Administrative Hearing Office shall be the official recording of the hearing.
(1) The hearing office will not normally prepare a verbatim transcript of the official recording, but the hearing officer may order one if deemed necessary to permit a full and fair review and resolution of the case. If not so ordered, a party may, at its own expense, request that a verbatim transcript be made. The party making the request shall provide one (1) copy to the hearing office and one (1) copy to the other party.
(2) The official recording of the hearing and transcript of the recording, together with all written submissions made by the parties, shall become part of the administrative record for the proceeding.
Note: Authority cited: Sections 39600, 39601, 42410, 43023, 43028, 43031(a) and 44011.6(m), Health and Safety Code. Reference:Mathews v. Eldridge, 424 U.S. 319 (1976); and Sections 42410, 43023, 43028, 43031(a) and 44011.6, Health and Safety Code.
s 60075.34. Evidence.
(a) Testimony shall be taken only on oath or affirmation.
(b) The hearing need not be conducted according to technical rules relating to evidence and witnesses. The hearing officer shall admit evidence which is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection in civil actions, and which is not irrelevant, immaterial, unduly repetitious, or otherwise unreliable or of little probative value. Hearsay evidence may be used for the purpose of supplementing or explaining other evidence but shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions. The application of these rules shall not affect the substantial rights of the parties as provided in the Evidence Code.
(c) The rules of privilege shall be effective to the extent that they are otherwise required by statute to be recognized at the hearing.
(d) Consistent with the provisions of section 60075.26(e), trade secret and other confidential information may be introduced into evidence. The hearing officer shall take all precautions to preserve the confidentiality of such information, and may make such orders as may be necessary to consider such evidence in a closed meeting, including the use of a supplemental decision or order to address matters which arise out of that portion of the evidence which is confidential.
(e) The hearing officer has discretion to exclude evidence if its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time or unduly prejudices the other party.
(f) In reaching a decision, official notice may be taken, either before or after submission of the proceeding for decision, of any generally accepted technical or scientific matter within the state board's area of expertise, and determinations, rulings, orders, findings and decisions, required by law to be made by the state board or the hearing officer.
(1) The hearing officer shall take official notice of those matters set forth in section 451 of the Evidence Code.
(2) The hearing officer may take official notice of those matters set forth in section 452 of the Evidence Code.
(3) Each party shall give notice of a request to take official notice and be given reasonable opportunity on request to present information relevant to:
(A) The propriety of taking official notice, and
(B) The effect of the matter to be noticed.
Note: Authority cited: Sections 39600, 39601, 42410, 43023, 43028, 43031(a) and 44011.6(m), Health and Safety Code. Reference:Mathews v. Eldridge, 424 U.S. 319 (1976); Sections 42410, 43023, 43028, 43031(a) and 44011.6, Health and Safety Code; and Sections 451 and 452, Evidence Code
s 60075.35. Evidence by Affidavit or Declaration.
(a) At any time 20 or more days prior to a hearing or a continued hearing, a party may mail or deliver to the opposing party or parties a copy of any affidavit or declaration which the proponent proposes to introduce in evidence, together with a notice as provided in subdivision (b). Unless an opposing party, within 7 days after such mailing or delivery, mails or delivers to the proponent a request to cross-examine the affiant or declarant the opposing party's right to cross-examine such affiant or declarant is waived and the affidavit or declaration, if introduced in evidence, shall be given the same effect as if the affiant or declarant had testified orally. If an opportunity to cross-examine an affiant or declarant is not afforded after request therefore is made as herein provided, the hearing officer may allow the affidavit or declaration to be introduced into evidence, but if so allowed, it shall only be given the same effect as other hearsay evidence.
(b) The notice referred to in subdivision (a) shall be a separate document concurrently served with the affidavit or declaration, entitled "Notice of Intent to Use Declaration or Affidavit in Lieu of Oral Testimony." The title shall be in bold print. The content of the notice shall be substantially in the following form:
"The accompanying affidavit or declaration of [insert name of affiant or declarant] will be introduced as evidence at the hearing in [insert title and docket number or petition number of proceeding]. [Insert name] will not be called to testify orally and you will not be entitled to question the affiant or declarant unless you notify [insert name of the proponent, representative, agent or attorney] at [insert address] that you wish to cross-examine the affiant or declarant. To be effective, your request must be mailed or delivered to [insert name of proponent, representative, agent or attorney] on or before [insert a date 7 days after the date of mailing or delivery of the affidavit or declaration to the opposing party]."
Note: Authority cited: Sections 39600, 39601, 42410, 43023, 43028, 43031(a) and 44011.6(m), Health and Safety Code. Reference:Mathews v. Eldridge, 424 U.S. 319 (1976); and Sections 42410, 43023, 43028, 43031(a) and 44011.6, Health and Safety Code.
s 60075.36. Exclusion of Witnesses.
(a) Upon motion of a party, the hearing officer may exclude from the hearing room any witnesses, other than the parties themselves or their representatives, not at the time under examination.
Note: Authority cited: Sections 39600, 39601, 42410, 43023, 43028, 43031(a) and 44011.6(m), Health and Safety Code. Reference:Mathews v. Eldridge, 424 U.S. 319 (1976); and Sections 42410, 43023, 43028, 43031(a) and 44011.6, Health and Safety Code.
s 60075.37. Oral Argument and Briefs.
(a) Prior to the close of the hearing, the hearing officer may, on his or her own motion or upon motion of a party, grant oral argument.
(b) Motions to submit written argument shall be made prior to the close of the hearing and shall be granted at the discretion of the hearing officer upon a determination that written argument will be productive and will not unreasonably delay the disposition of the proceeding. If granted, a party shall file written argument within 15 working days from the date of the hearing. Opposing parties may file an answer within 10 working days from service of the argument. The hearing officer may extend or reduce the above filing dates for submission of written argument for good cause.
Note: Authority cited: Sections 39600, 39601, 42410, 43023, 43028, 43031(a) and 44011.6(m), Health and Safety Code. Reference:Mathews v. Eldridge, 424 U.S. 319 (1976); and Sections 42410, 43023, 43028, 43031(a) and 44011.6, Health and Safety Code.
s 60075.38. Default Order.
(a) A party to a case that has been assigned for hearing pursuant to section 60075.17(i) may be found to be in default upon failure to appear at a scheduled hearing without good cause.
(1) No finding of default shall be made against the citee unless the staff of the state board presents sufficient evidence to establish a prima facie showing that the citation was properly issued and the penalty appropriate.
(2) Default by the citing party shall result in dismissal of the citation with prejudice.
(b) If a default against a citee occurs, the state board, within 10 days, shall present written evidence supported by affidavits or declarations, substantiating the proposed penalty set forth in the complaint.
(c) If the hearing officer determines that a default has occurred, he or she shall issue a default order against the defaulting party. This order shall constitute a decision or order after hearing for purposes of section 60075.40 of these rules.
(d) Any proceeding may be reinstated by the hearing officer upon a showing of good cause that contains sufficient facts to show or establish a reasonable basis for the failure to appear at the hearing. The defaulting party shall make the request for reinstatement within 10 days of service of the default order pursuant to section 60075.38(d) of these rules.
Note: Authority cited: Sections 39600, 39601, 42410, 43023, 43028, 43031(a) and 44011.6(m), Health and Safety Code. Reference:Mathews v. Eldridge, 424 U.S. 319 (1976); and Sections 42410, 43023, 43028, 43031(a) and 44011.6, Health and Safety Code.
s 60075.39. Penalty Assessment Criteria.
(a) For citations issued under Health and Safety Code section 44011.6 and the regulation adopted pursuant thereto, title 13, California Code of Regulations, sections 2180, et seq., the hearing officer shall follow the penalty schedule outlined in title 13, CCR, section 2185.
(b) In determining penalties for citations issued under Health and Safety Code sections 43023 and 43028, the hearing officer shall consider all relevant circumstances, including, but not limited to:
(1) The penalties or range of penalties set forth in the underlying rules or regulations that have been violated;
(2) The extent of harm caused by the violation to public health and safety and to the environment;
(3) The nature and persistence of the violation, including the magnitude of the excess emissions;
(4) The compliance history of the citee, including the frequency of past violations;
(5) The preventive efforts taken by citee, including the record of maintenance and any program to ensure compliance;
(6) The innovative nature and the magnitude of the effort required to comply, and the accuracy, reproducibility, and repeatability of the available test methods;
(7) The efforts to attain, or provide for, compliance;
(8) The cooperation of the citee during the course of the investigation and any action taken by the defendant, including the nature, extent, and time of response of any action taken to mitigate the violation; and
(9) For the person who owns a single retail service station, the size of the business.
(c) In determining penalties for citations issued under Health and Safety Code section 42410, the hearing officer shall consider all relevant circumstances, including, but not limited to:
(1) The penalties or range of penalties set forth in the underlying rules or regulations that have been violated;
(2) The extent of harm caused by the violation;
(3) The nature and persistence of the violation;
(4) The length of time over which the violation occurs;
(5) The frequency of past violations;
(6) The record of maintenance;
(7) The unproven or innovative nature of the control equipment;
(8) Any action taken by the respondent, including the nature, extent, and time or response of the cleanup and construction undertaken, to mitigate the violation; and
(9) The financial burden to the respondent.
Note: Authority cited: Sections 39600, 39601, 42410, 43023, 43028, 43031(a) and 44011.6(m), Health and Safety Code. Reference:Mathews v. Eldridge, 424 U.S. 319 (1976); and Sections 42403, 42410, 43023, 43028, 43031(a) and 44011.6, Health and Safety Code.
s 60075.40. Decision or Order After Hearing; Correction of Mistakes or Errors; Effective Date of Decision.
(a) Unless otherwise ordered, all proceedings shall be submitted at the close of the hearing. The hearing officer may extend the submission date and shall, within 30 days after the proceeding is submitted, make findings upon all facts relevant to the issues for hearing, and file an order or decision with the reasons or grounds upon which the order or decision was made.
(b) The order or decision shall be in writing, signed and dated by the hearing officer deciding the proceeding.
(c) The order or decision may, based on the findings of fact, affirm, modify or vacate the citation or penalty, or direct other relief as appropriate.
(d) A copy of the order or decision shall be served on each party or representative together with a statement informing the parties of their right to request that the executive officer reconsider the order or decision pursuant to sections 60075.43, et seq. of these rules.
(e)(1) Within five days of the filing of any order or decision, the hearing officer may, at the request of any party or on his or her own motion, on the basis of mistake of law or fact, issue a modified order or decision correcting a mistake or error with respect to any matters determined or covered by the previously issued order or decision. If necessary, the hearing officer may schedule further proceedings to address the issue(s).
(2) If a request has been filed under this subparagraph, the request shall be deemed denied if the hearing officer has taken no action to address the request within 15 days of filing of the request.
(3) The hearing office shall serve a copy of the modified order or decision on each party that had previously been served with the original order or decision. The modified order or decision shall supersede the previously served order or decision, and the date of service of the modified order or decision shall be the effective date of the decision and order for purposes of sections 60075.41 and 60075.44.
(f) The hearing officer shall certify the administrative record and shall make available copies of the administrative record and any issued orders or decisions to the executive officer.
Note: Authority cited: Sections 39600, 39601, 42410, 43023, 43028, 43031(a) and 44011.6(m), Health and Safety Code. Reference:Mathews v. Eldridge, 424 U.S. 319 (1976); and Sections 42410, 43023, 43028, 43031(a) and 44011.6, Health and Safety Code.
s 60075.41. Reconsideration; On Motion of Executive Officer or by Request of Party.
(a) At any time within 20 days of the filing of an order or decision of the hearing officer, pursuant to section 60075.40 of these rules, the executive officer may, on his or her own motion, determine that reconsideration is appropriate with respect to any matters determined or covered by the order or decision of the hearing officer. The executive officer shall notify the parties and the hearing office of his or her determination.
(b) A party aggrieved by an order or decision of the hearing officer, pursuant to section 60075.40 of these rules may, within 20 days of service of such order or decision, request that the executive officer reconsider any matters determined or covered by the order or decision. The request for reconsideration shall be filed with the executive officer and shall be served on all parties in accordance with section 60075.4 of these rules, except that the original of the request shall be filed with the executive officer, and the hearing office shall receive a copy. The request shall be deemed filed the date it is delivered or mailed to the executive officer.
Note: Authority cited: Sections 39600, 39601, 42410, 43023, 43028, 43031(a) and 44011.6(m), Health and Safety Code. Reference:Mathews v. Eldridge, 424 U.S. 319 (1976); and Sections 42410, 43023, 43028 and 44011.6, Health and Safety Code.
s 60075.42. Reconsideration; Procedural Requirements.
(a) The request for reconsideration shall be signed by the party filing the request or its representative and verified upon oath. The request may only request reconsideration of issues that were raised before the hearing officer and may only be based upon one or more of the following grounds:
(1) In issuing the order or decision the hearing officer acted without or in excess of his or her powers;
(2) The order or decision was procured by fraud;
(3) The evidence received by the hearing officer does not justify the findings of fact;
(4) The petitioner has discovered new material evidence which the petitioner could not, with reasonable diligence, have discovered and produced at the hearing;
(5) The findings of fact do not support the order or decision; and
(6) The order or decision is contrary to applicable law.
(b)(1) Any request for reconsideration shall set forth specifically and in full detail the grounds upon which the party making the request considers the order or decision to be unjust or unlawful and every issue to be considered by the executive officer on reconsideration. The party making the request shall be deemed to have waived all objections, irregularities, and illegalities concerning the proceeding upon which reconsideration is sought other than those specifically set forth in the petition for reconsideration.
(2) The petition for reconsideration will be denied if it contains no more than allegations of the statutory or constitutional grounds for reconsideration, unsupported by specific references to the record and principles of law involved.
(c) When a request for reconsideration or answer thereto has been timely filed, the filing of supplemental requests or answers in response may be granted at the discretion of the executive officer. Parties requesting a copy of the hearing record shall bear the cost of reproduction.
(d) The request for reconsideration may include, and the executive officer may grant, a request that the decision of the hearing officer be stayed pending resolution of the petition for reconsideration.
(e) Within 10 days of being served with notice of a request for reconsideration, a party opposed to the request may file an opposition to the request with the executive officer or the state board secretary, as applicable. The opposition shall be signed and verified under oath by the party or its representative and shall not exceed 6 pages.
Note: Authority cited: Sections 39600, 39601, 42410, 43023, 43028, 43031(a) and 44011.6(m), Health and Safety Code. Reference:Mathews v. Eldridge, 424 U.S. 319 (1976); and Sections 42410, 43023, 43028, 43031(a) and 44011.6, Health and Safety Code.
s 60075.43. Reconsideration; Orders and Decisions by the Executive Officer.
(a) Unless the executive officer expressly finds otherwise, a request for reconsideration shall be deemed summarily denied if the executive officer does not issue a finding that reconsideration is warranted within 20 days of filing of the request. For those matters deemed summarily denied, the order or decision of the hearing officer issued pursuant to section 60075.40 shall be considered final pursuant to section 60075.44.
(b) If the request for reconsideration has not been summarily denied pursuant to subparagraph (a) above in reconsidering the decision or order of the hearing officer, the executive officer may:
(1) Review some, but not all, issues raised by the request;
(2) Grant an order to stay, suspend, or postpone, the order or decision of the hearing officer, findings, or decision after reconsideration;
(3) Affirm, rescind, or amend the findings, order or decision of the hearing officer; or
(4) Direct the reopening of the hearing for the taking of additional evidence and issuance of supplementary findings of fact. The executive officer may direct that the taking of such evidence be done by either written submission or further testimony under oath before the executive officer or a hearing officer. The hearing shall be reopened for the limited purposes identified by the executive officer in his order. Notice of the time and place of further hearings shall be given to all parties and to such other persons as the hearing officer may direct.
(c) For those decisions and orders of the hearing officer for which reconsideration is undertaken, the executive officer shall issue his or her final disposition of the request as expeditiously as possible. A decision or order that is the final disposition of the request for reconsideration shall be in writing and any modifications to the order or decision of the hearing officer shall be supported with additional findings, facts and conclusions of law.
Note: Authority cited: Sections 39600, 39601, 42410, 43023, 43028, 43031(a) and 44011.6(m), Health and Safety Code. Reference:Mathews v. Eldridge, 424 U.S. 319 (1976); and Sections 42410, 43023, 43028, 43031(a) and 44011.6, Health and Safety Code.
s 60075.44. Final Order or Decision; Effective Date.
(a) Pursuant to sections 60075.17 and 60075.22(b), if a citee fails to request a hearing to contest the issuance of a citation within the time period provided, the citation becomes a final order and the stated penalty due and payable.
(b) If no request for reconsideration of the order or decision of the hearing officer has been filed within 20 days of the service of an order or decision under section 60075.41(b) of these rules, and if the executive officer, on his or her own motion, has not issued a finding that reconsideration is appropriate under section 60075.41(a), the order or decision of the hearing officer shall become final. The effective date of the final decision or order shall be 30 days after the date the order or decision of the hearing officer was served by mail on the parties.
(c) If a party has filed a request for reconsideration and it has been deemed summarily denied pursuant to section 60075.43(a), because the executive officer has not acted upon the request within the time provided, the order or decision of the hearing officer shall become final. The effective date of the hearing officer order or decision becoming final shall be 20 days from the date that the request for reconsideration was filed.
(d) If the executive officer issues a finding that reconsideration is warranted, the order or decision of the executive officer providing full disposition of the request for reconsideration pursuant to section 60075.44(b) shall be the final order or decision and shall become effective on the date that it is served by mail on the parties.
Note: Authority cited: Sections 39600, 39601, 42410, 43023, 43028, 43031(a) and 44011.6(m), Health and Safety Code. Reference:Mathews v. Eldridge, 424 U.S. 319 (1976); and Sections 42410, 43023, 43028, 43031(a) and 44011.6, Health and Safety Code.
s 60075.45. Judicial Review.
(a) Except for orders that have become final because a citee has failed to request a hearing to contest a citation (see sections 60075.17, 60075.22(b) and 60075.44(a)), a party may seek judicial review of a final order or decision by administrative mandamus pursuant to section 1094.5 of the Code of Civil Procedure. The right to petition shall not be affected by the failure to seek reconsideration before the agency.
(1) For citations arising under section 44011.6 of the Health and Safety Code, the citee may file for judicial review within 60 days from the date the order or decision becomes final under section 60075.44.
(2) For all citations issued under sections 42410, 43023, and 43028 of the Health and Safety Code, the respondent may file for judicial review within 30 days from the date the order or decision becomes final under section 60075.44.
(b) The state board may seek to enforce a final order in accordance with applicable law or decision in Superior Court.
Note: Authority cited: Sections 39600, 39601, 42410, 43023, 43028, 43031(a) and 44011.6(m), Health and Safety Code. Reference:Mathews v. Eldridge, 424 U.S. 319 (1976); Sections 42410, 43023, 43028, 43031(a) and 44011.6, Health and Safety Code; and Section 1094.5, Code of Civil Procedure.
s 60075.46. Final Order of Decision After Reconsideration.
Note: Authority cited: Sections 39600, 39601 and 44011.6(i), Health and Safety Code. Reference: Section 44011.6, Health and Safety Code.
s 60075.47. Judicial Review.
Note: Authority cited: Sections 39600, 39601 and 44011.6(i), Health and Safety Code. Reference: Section 44011.6, Health and Safety Code; Section 1094.5, Code of Civil Procedure.
s 60090. Purpose.
The purpose of this regulation is to implement the provisions of Chapter 3 of Part 1 of Division 26 of the California Health and Safety Code (commencing with section 39150) which define a "minor violation" and establish guidelines for issuing a Notice to Comply.
Note: Authority cited: Sections 39600, 39601 and 39150(c), Health and Safety Code. Reference: Sections 39150-39153, Health and Safety Code.
s 60091. Definitions.
For the purposes of sections 60090 through 60094, the following definitions shall apply:
(a) "Chronic violation" means a violation where there is evidence indicating a pattern of neglect or disregard in complying with air pollution control requirements. A pattern of neglect or disregard can be established by more than one reasonably contemporaneous violation of the same or similar nature at the same facility or by the same operator.
(b) "Executive Officer" means the Executive Officer of the California Air Resources Board or his or her delegate pursuant to section 39516 of the Health and Safety Code.
(c) "Information" means data, records, photographs, analyses, plans, or specifications which will disclose the nature, extent, quantity, or degree of air contaminants which are, or may be, discharged by a source.
(d) "Minor Violation" means:
(1) The failure of a person to comply with any requirement or condition of any applicable rule, regulation, information request, order, variance, or other requirement, whether procedural or substantive, adopted by the Air Resources Board pursuant to Division 26 of the Health and Safety Code, sections 43830 et seq., 41962, and 41712, where the noncompliance meets all of the following criteria:
(A) does not result in or contribute to, or have the effect of covering or concealing, an increase in emissions of any air contaminant by more than a de minimis amount; and,
(B) does not endanger the health, safety, or welfare of any person(s); and
(C) does not endanger the environment; and
(D) does not cause an increase in emissions of any toxic air contaminant in excess of any emission standard, limitation, or other state or federal requirement that is applicable to that toxic air contaminant; and
(E) does not cause or contribute to the violation of any state or national ambient air quality standard; and
(F) does not hinder the ability of the Executive Officer to determine compliance with any other applicable local, state or federal rule, regulation, information request, order, variance, permit, or other requirement.
(2) Notwithstanding the above, no violation shall be considered a minor violation if:
(A) the violation is knowing, willful, or intentional; or
(B) the violation enables the violator to benefit economically from noncompliance, either by realizing reduced costs or by gaining a competitive advantage; or
(C) the violation is chronic; or
(D) the violation is committed by a recalcitrant violator.
(e) "Notice to Comply" means a written method of alleging a minor violation that:
(1) is written in the course of conducting an inspection by the Executive Officer.
(2) is presented to a person who is owner, operator, employee, or representative of the facility being inspected at the time the Notice to Comply is issued.
(3) clearly states the following:
(A) the nature of the alleged minor violation; and
(B) a means by which compliance with the requirement cited may be achieved; and
(C) a time limit, not to exceed thirty (30) days, by which date compliance must be achieved; and
(D) that the inspected facility may be subject to reinspection at any time.
(f) "Procedural Requirement" means a requirement of a rule or regulation that establishes a manner, method, or course of action but does not specify, limit, or otherwise address direct air contaminant emissions.
(g) "Recalcitrant violator" means a person who, based upon the evidence, has engaged in a pattern of neglect or disregard with respect to the violation of applicable rules, regulations, information requests, orders, permits, or other requirements.
Note: Authority cited: Sections 39600, 39601 and 39150(c), Health and Safety Code. Reference: Sections 39150-39153, Health and Safety Code.
s 60092. Applicability.
Any person who is an owner, operator, employee, or representative of a facility subject to rules, regulations, or other requirements adopted pursuant to Division 26 of the Health and Safety Code, sections 43830 et seq., 41962, and 41712 and commits a minor violation shall be subject to this regulation.
Note: Authority cited: Sections 39600, 39601 and 39150(c), Health and Safety Code. Reference: Sections 39150-39153, Health and Safety Code.
s 60093. Requirements.
For the purposes of sections 60090 through 60094 the following requirements shall apply to the issuance of, and response to, a Notice to Comply for a minor violation:
(a) Except as otherwise provided in this regulation, a Notice to Comply shall be the only means by which the Executive Officer shall cite a minor violation.
(b) A person who receives a Notice to Comply pursuant to this paragraph shall have the period specified from the date of the receipt of the Notice to Comply in which to achieve compliance. Within five (5) working days of achieving compliance, the person who received the Notice to Comply shall sign the Notice to Comply, stating that the person has complied with the Notice to Comply, and return it to the Executive Officer. A false statement that compliance has been achieved is a violation of this rule.
(1) If testing is required to determine compliance, and the testing cannot be conducted during the course of the inspection, the Executive Officer shall have a reasonable period of time to conduct the required testing.
(2) If, after the test results are available, the Executive Officer determines that the issuance of a Notice to Comply is warranted, the facility owner or operator shall be immediately notified in writing. If, after the test results are available, the Executive Officer determines that the issuance of a Notice of Violation is warranted, the facility owner or operator shall be notified in writing. (continued)