Other Fields
Agency Scheme: 
EPAOOALJ0001
ADJUDICATION STRUCTURE
Hearing Level: Basic Structure
Name of Hearing Office (local name): 
Office of Administrative Law Judges
Name of Hearing Office (global name): 
Environmental Protection Agency: Office of Administrative Law Judges
Sub-Agency/Bureau/Division:: 
Office of Administration and Resources Management (OARM)
Hearing Officer #1 (Title): 
Chief Administrative Law Judge
Hearing Officer #2 (Title): 
Administrative Law Judge
Are administrative appeals permitted from final decisions at the hearing-level stage?: 
Yes (All Types of Cases)
Comments/Notes on Adjudication Structure: 

EPA OALJ administrative adjudications are formal "on-the-record" proceedings under the Administrative Procedure Act (APA), 5 U.S.C. § 554. Most cases are agency-initiated enforcement proceedings against alleged violators seeking administrative monetary penalties and/or compliance orders under a variety of environmental statutes. Those cases are heard under procedures set forth in the "Consolidated Rules of Practice Governing the Administrative Assessment of Civil Penalties and the Revocation/Termination or Suspension of Permits" (CROP), 40 C.F.R. Part 22. Some of the cases OALJ adjudicates are pesticide cancellation matters which are heard under the "Rules of Practice Governing Hearings under the Federal Insecticide, Fungicide and Rodenticide Arising from Refusals to Register, Cancellations and Other Hearings Called Pursuant to Section 6 of the Act," 40 C.F.R. Part 164. In addition, pursuant to various Interagency Agreements, on a fully reimbursable basis, OALJ has provided its judicial services to other federal agencies, including NOAA, PTO, EEOC, MSPB, Agriculture, IRS, etc., which lack any or a sufficient number of Administrative Law Judges of their own. These cases are conducted on behalf of and pursuant to the applicable rules of those agencies. The responses below refer only to EPA matters except where otherwise indicated.

PROCESS & PROCEDURE - General Information
Are private parties permitted to have representation at hearings?: 
Yes (All Types of Cases)
Who may serve as a private party representative?: 
Either
About what percentage of private parties were represented at hearings (FY2013)?: 
54.00%
Is the agency permitted to have representation at hearings?: 
Yes (All Types of Cases)
Who may serve as an agency representative?: 
Attorney
Regulations/rules of practice for hearings (please include CFR citations): 
40 CFR Part 22; see also other parts of Title 40 applicable to specific types of cases (See, e.g., Parts 5, 7, 17, 78, 85, 86, 89-92, 104, 124, 164, 178, 209, 233, 271, 305, 1068)
Other published guidance for hearings (if any): 
EPA OALJ Citizen's Guide (Oct. 2010); EPA OALJ Practice Manual (July 2011); Procedures for Hearings Conducted Pursuant to 40 CFR Part 7 (posted on OALJ website)
PROCESS & PROCEDURE - Pre-Hearing Procedure
Is discovery permitted by either party at the hearing-level stage?: 
Yes (All Types of Cases)
Briefly describe the scope and type(s) of discovery available (e.g., depositions, interrogatories, etc.): 
The Rules of Procedure generally provide for parties to engage in a "prehearing information exchange," which includes, but is not limited to, providing the opposing party or parties (and the Tribunal) with a list of anticipated lay and expert witnesses to be called at hearing along with summaries of their expected testimony; copies of all documents and exhibits expected to be introduced at the hearing; and the agency's calculations for proposed penalties (in cases seeking civil penalties) or Respondent's bases for challenging the penalty, including an inability to pay. Parties have an affirmative obligation to supplement their exchanges if it is discovered that the information is incomplete, inaccurate, or out of date. Additional discovery is permitted only upon motion and leave from the presiding ALJ. Such additional discovery generally involves depositions and requests for admission, but can also involve interrogatories, document production, site visits, sample testing, etc. (See 40 C.F.R. § 22.19). In addition, parties are strongly encouraged to stipulate to uncontested facts and witness testimony prior to hearing so that the limited time allocated to hearing can efficiently focus on factual matters actually in dispute. Parties are also permitted to file pre-hearing motions to narrow the issues for hearing and pre-hearing briefs to set forth their positions regarding factual and legal matters in dispute.
Does the hearing officer have subpoena authority?: 
Yes (Some Types of Cases)
Are ex parte contacts prohibited?: 
Yes (All Types of Cases)
Are parties provided notice of hearing?: 
Yes (All Types of Cases)
How far in advance of the hearing date is notice typically provided?: 
60 Days
PROCESS & PROCEDURE - Hearing Procedure
What types of hearings are permitted at the hearing-level stage?: 
Written (Document-Only) Hearing
In-Person
Video
Please provide the approximate percentage of each type of hearing relative to the total number of hearings (FY2013)
Written (Document-Only) Hearing: 
5%
In-Person: 
95%
Video: 
0%
How is the type of hearing selected: 
By Agency
By Private Party
Depends on Nature of Case/Claim
Please describe: 
In-person (evidentiary) hearings are conducted if requested by a respondent in the answer and the case presents disputed issues of material fact as to liability and/or penalty. In-person, on the record, hearings are typically conducted in a federal or state courthouse located in county near the respondent, to which the ALJ, parties, and witnesses travel. (40 C.F.R. §§ 22.14(a)(5), 22.21(b) & (d)). Very occasionally, parties request that a hearing decision be rendered on the paper record and/or sometimes the tribunal grants a decision on the written record in a default, dismissal, or summary judgment situation.
How many hearing officers preside at each hearing?: 
One
Is witness testimony permitted at hearings?: 
Yes
If "Varies by Case," please describe: 
Live witness testimony, including that of lay and expert witnesses, is not only permitted but is generally extensively presented at all in-person EPA evidentiary hearings, which is why such hearings can often last a week or more. In on-the-record, written document-only hearings, the parties may introduce lay or expert witness testimony through documents provided such as affidavits or deposition transcripts.
Can parties cross-examine witnesses?: 
Yes
If "Varies by Case," please describe: 
Live cross-examination is permitted for in-person evidentiary hearings. This question is not applicable to document-only hearings.
Can third-parties submit amicus briefs and/or evidence?: 
Adjudication Officer Discretion
Are hearings recorded and/or transcribed?: 
Yes
Are hearings open to the public?: 
Presumed Open (But May Be Closed Under Certain Conditions)
If "Varies by Case," please describe: 
Live in-person evidentiary hearings are open to the public, except when the Tribunal approves a party's request for closure in order to take certain limited live testimony involving confidential business information. All documents filed in the cases are available to the public except for those as to which the parties request they be treated as confidential.
PROCESS & PROCEDURE - Post-Hearing Procedure
Who typically drafts the decision at the hearing-level stage?: 
Adjudication Officer
Staff Attorney
If "Other," please specify (drafts): 
ALJs and staff attorneys work collaboratively to draft the very legally and scientifically complex decisions required in regard to most EPA cases in order to expedite case processing and produce the best written work-product possible. Drafting an EPA initial decision often consumes 6-12 months or more of conscientious professional effort. The initial decisions rendered after hearing are often 100+ pages in length on legal matters of first impression. See, e.g. Initial Decisions in Chem-Solv issued 6/5/2014 and Liphatech issued 3/12/14 accessible at www.epa.gov/oalj/orders.htm
Who has authority to issue final decisions?: 
Adjudication Officer
If "Other," please specify: 
All decisions at EPA are rendered by the ALJ who heard the case and each ALJ bares complete and final responsibility for reviewing, revising and approving each decision issued under her name.
Do agency regulations or guidance provide time limits for issuance of final decisions?: 
Yes (All Types of Cases)
If "Yes," please specify these time limit(s): 
While no regulations provide an express timeline, OALJ has a well-established goal is to complete its EPA cases on average within 180 days of initial receipt of the matter by the hearing clerk. (See EPA OALJ Citizen's Guide, p. 29).
About how long does it take on average—as of FY2013—to adjudicate claims/cases at the hearinglevel stage (i.e., from case filing: 
405 Days
Is judicial review available after issuance of a final decision?: 
No
PROCESS & PROCEDURE - Case Management
How are claims/cases processed at the hearing-level stage?: 
Differentiated Case Management
Please briefly describe your case management practice(s) at the hearing level stage: 
Each case received by the Hearing Clerk is promptly offered an opportunity to participate in a confidential Alternative Dispute Resolution (ADR) process conducted by an EPA ALJ neutral for a limited (2-4 month period). If both parties timely agree to engage in ADR, the case is assigned to the ADR Docket. If ADR process is successful, then the case closes with the filing of a Consent Agreement and Final Order. If ADR process is not successful within the established time-limit or the parties did not consent to participate in ADR, then the case is assigned to the Litigation Docket and to one of the litigation ALJs in rotation, to the extent practicable. After the completion of the prehearing process, the time of which varies, if the case is not yet resolved by settlement or on motion, the ALJ sets the case for the next available hearing date on her docket mutually agreeable to the parties, which takes into account the availability of counsel and the witnesses. After hearing, the parties are permitted to engage in post-hearing filings. When those are completed, the Judge writes her decision and issues it. EPA ALJs normally have a dozen EPA cases and half a dozen other non-EPA cases on their docket in all stages of the process simultaneously and endeavor to efficiently process them all to the greatest extent possible. To facilitate the efficient adjudication of all pending cases, and balance pending workloads among the limited number of judges cases may be assigned other than in strict rotation or reassigned at the discretion of the Chief Judge.
Does the agency permit web-based electronic filing of hearing-related briefs or other documents?: 
Yes
Are final decisions published and/or posted on the agency website?: 
Yes (All Decisions)
If "Yes (Some Decisions)," how does the agency determine which final decisions to publish/post? Please briefly describe: 
All Initial Decisions (subject to review by the Environmental Appeals Board) and any other interlocutory orders of significance are published to EPA/OALJ's website (www.epa.gov/oalj/orders.htm). "Significance" generally means an order ruling on a legal issue and citing legal precedent, rather than a routine scheduling or extension order, for example. EPA OALJ's website as well as Lexis and Westlaw, currently contain all such orders and decisions going back to the establishment of the Agency and EPA OALJ in 1970 to the greatest extent possible. It should be noted that confidential business information and personal identifying information is redacted from decisions accessible electronically or otherwise by the public. Further, OALJ is about to launch an electronic docket system which will provide public access to all documents filed in EPA administrative cases with OALJ, except those deigned confidential.
Do agency regulations/rules of practice specify the contents of the administrative record at the hearing-level stage?: 
No
If "Yes," please provide citation(s): 
No, the content of the record is not generally specified with the exception of the filing of a Complaint and Answer, and issuance of an initial decision. 40 C.F.R. §§ 22.13-22.15, 22.27.
Do agency regulations/rules of practice provide for closure of the record at the hearing-level stage (subject to applicable exce: 
Yes (All Types of Cases)
If "Yes," please provide citation(s): 
Yes, the record closes once the hearing is completed and the post-hearing brief, etc. are filed. 40 C.F.R. § 22.22 (setting limits on evidence admissibility based upon timely production) and 40 C.F.R. § 22.28 (providing for motion to reopen hearing)
PROCESS & PROCEDURE - Comments
Comments/Notes on Hearing-Level Process & Procedures (Optional): 
*Consolidation/Severance: Presiding officers have the discretion to consolidate cases/issues in two or more proceedings where there are common issues of fact or law. Presiding officers may also sever cases for good cause with respect to any party or issue. (40 C.F.R. §22.12) * Default: A party may be found in default and dismissal of the action or judgment entered forfailing to comply with an order of the Presiding Officer. (40 C.F.R. §22.17). * Summary Adjudication: Upon motion, the presiding ALJs may render motions to dismiss or "accelerated decisions" (which are akin to summary judgment in federal court). (40 C.F.R. §22.20). * Written Direct Testimony: The CROP permit parties to introduce sworn written direct testimony of witnesses in lieu of oral examination at the hearing, submit, though such witnesses must be available for in-person cross-examination. (40 C.F.R. §22.22(c))
ADJUDICATORS
Total # of Hearing Officers: 
4
Comments/Notes on Hearing-Level Adjudicators (Optional): 
EPA OALJ currently has 3 full-time permanent ALJs who all carry a full docket of cases (approx. 5-20 in FY 2013), plus one part-time temporary retired-annuitant ALJ (who is a former EPA ALJ), who carries a reduced docket and exclusively handles ADR matters. With the exception of the Chief Administrative Law Judge, all the full-time Administrative Law Judges in EPA are at the AL-3 level, however there is believed to be no actual pay differential between the Chief ALJ with 20+ years of experience and office management responsibilities, and the other two associate ALJs with only a couple of years of experience and no management responsibilities, since the salaries of all Administrative Law Judges particularly those who were former senior attorneys quickly cap out at the same amount. See, https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/pdf/2014/ALJ_LOC.pdf
ADR: General Information
Is ADR available at one or more points during the hearing process?: 
Yes
If "Yes," when is ADR available?: 
Pre-Hearing
Is ADR a mandatory or voluntary process?: 
Voluntary
If "Varies by Case," please describe:: 
See, description above. All parties must opt in for ADR to be conducted. ADR is routinely offered and conducted after the Answer is filed but before pre-hearing discovery proceedings are conducted. However, any party may request the case be assigned to ADR at a later stage of the proceeding, and such reassignment is granted at the ALJ's discretion.
What type(s) of ADR are available?: 
Mediation
Settlement Conference
Other
If "Other," please specify:: 
The parties are allowed to request the type of ADR process they wish the Administrative Law Judge serving as the ADR neutral to apply. The neutral ALJ conducting the ADR has the discretion to apply the process she deems most appropriate.
Who conducts the ADR?: 
Non-Presiding Adjudicator
If "Other," please specify:: 
One of the Administrative Law Judges generally serves as the neutral in the confidential ADR process. On rare occasions, the parties choose an outside third-party neutral.
Regulations/rules of practice governing ADR process (please include CFR citations): 
40 C.F.R. § 22.18(d)(3)
Other published guidance on ADR process (if any):: 
EPA OALJ Citizen's Guide 12-13 (Oct. 2010)
Comments/Notes on ADR Process (Optional): 
EPA's OALJ ADR process, in which trained non-presiding ALJs serve as neutrals, is free of charge to the parties. The process has been extremely successful at settling cases either within the short time period provided for ADR (2-4 months) or promptly thereafter during the early stages of the pre-hearing litigation process. EPA neutrals generally conduct ADR via telephone, but can conduct also or additionally conduct ADR via videoconference or in-person where appropriate. OALJ solicits confidential written feedback from all ADR participants on an on-going basis in order to evaluate and improve its ADR process. In addition, EPA's OALJ includes information on making effective use of its ADR process in all the outreach and training programs it conducts for nationwide. EPA OALJ recently expanded its ADR program to the PTO and NOAA cases it handles.
ADR – Summary Statistics
Comments/Notes on ADR Statistics (Optional): 
EPA OALJ has found that while only a limited number of cases settle within the strictly limited ADR period provided (2-4 months), many cases settle shortly thereafter as a result of the ADR process such that the vast majority of EPA cases settle prior to hearing. While in the past EPA OALJ allowed for a more open-ended ADR process, EPA OALJ found that it is best not to continue such practice because the ADR process itself is extremely time-consuming for the neutral and a limited time-period encourages the participants to make the most efficient use of the ADR time allotted. Further, prompt initiation of the litigation process post-ADR, with its various filing deadlines, further encourages the parties to settle efficiently, if possible, to avoid expending unnecessary time and resources on preparing for hearing. Nevertheless, at the end of FY 2013, EPA ALJs had a total of 12 (post-hearing) initial decisions pending.
CASELOAD STATISTICS - Summary Statistics
Total # Cases Filed/Opened (FY2013): 
46
Total # Cases Decided/Closed (FY2013): 
25
Total # Cases Pending (End of FY2013): 
24
CASELOAD STATISTICS - Supplementary Statistics
Does your agency maintain annual caseload statistics for this hearing office by case type (e.g., discrimination complaint, licen: 
No
WRAP-UP
Do you have any additional comments about your agency's responses on this form? If so, please provide comments below.: 
EPA OALJ would welcome an opportunity to answer any further inquiries regarding the information provided or to provide additional information concerning its office, cases and/or processes. Arrangements may be made through Bruce Franklin, 202-564-6214 or franklin.bruce@epa.gov.
Are there distinctive or innovative features of the hearing-level adjudication program covered on this form that you wish to hig: 
As evidenced by its initial decisions on-line, EPA enforcement cases are often extremely contentious, lengthy and complex. The cases routinely involve controverted expert testimony on complex scientific issues as well as legal matters of first impression. The penalties can run into the millions of dollars and the decision can establish a legal standard for a whole industry. Hearings in EPA cases are held across the nation and can last a week or more. The initial decisions, incorporating the testimony, legal arguments and rational for the outcome, are routinely 100+ pages in length. Since FY 1998, the number of Judges in EPA's OALJ has been reduced from 12 to 3 1/2. Nevertheless, in that same period OALJ has reduced its case processing time from over 4 years to less than 18 months on average. This has been accomplished by improved docket management, thoughtful staff hiring, institution/expansion of ADR processes, and educational outreach efforts. Presently, EPA OALJ is in the process of modernizing its computer systems and has recently instituted an e-filing system and is in the process of establishing an e-docket and e-service system for orders and decisions in order to further reduce costs and increase efficiency. It has also encouraged parties to utilize videoconferencing in lieu of or as part of ADR and hearing, with modest success. More recently, EPA OALJ's efficiency has allowed it to take on cases from other agencies pursuant to inter-agency agreements, to the mutual benefit of the agencies involved. Presently, EPA OALJ is adjudicating administrative cases for NOAA, as EPA and NOAA have overlapping enforcement jurisdiction under various statutes including the Marine Mammal Protection Act. EPA OALJ is also handling a few cases for the PTO and is presently completing a case for the MSPB. The ALJs of EPA strongly believe in supporting the ALJ loan system operated by OPM to provide ALJ services to all agencies as needed to the extent possible without losing the quality and efficiency of processing EPA's enforcement cases. In addition, the ALJs of EPA have found handling such non-EPA cases provide them with significant benefits. The non-EPA cases handled by EPA OALJ involve unfamiliar regulatory provisions, are simpler and swifter to adjudicate, and offer more frequent and brief trial opportunities. As such, they give EPA's judges and attorneys new stimulating intellectual challenges and the opportunity to constantly maintain and improve their trial skills, so they can continually perform at the very high level demanded by their more lengthy and complex EPA matters, without significantly suffering burn out.
Setting aside budgetary or legislative constraints (if any), does your agency have a "wish list" of processes or procedures (e.g: 
EPA OALJ believes that EPA's current system of assigning jurisdiction over small and initial administrative judicial matters to EPA "Regional Judicial Officers" (RJOs) situated around the country is antiquated in light of the electronic accessibility of case filings, and more importantly is fraught with the appearance of conflict of interest concerns as the RJOs are EPA senior enforcement attorneys reporting to, and evaluated and supervised by the same Regional Counsel who supervises and evaluates the work of the enforcement attorneys who bring the enforcement actions before the RJOs. Further, unlike EPA's ALJs, the RJOs are located literally in offices adjacent to the enforcement attorneys bringing the cases before them. OALJ believes the RJO positions and work should be either merged into OALJ or the positions abolished and work transferred to OALJ. In addition, EPA OALJ is working towards eventually having a "virtual office" where each staff member can perform most if not all aspects of their jobs, except for hearing, without commuting to a central location in an effort to boost efficiency and cost savings. If budgetary and legislative constraints were not a concern, OALJ would immediately hire computer consultants to create the software systems to make this a reality and assure the integration of such systems with the EPA Headquarters and Regional Offices filing the cases, the Environmental Appeals Board (EAB) who reviews the cases, and the Federal Court system which reviews the final agency decisions of the EAB. We would also coordinate and unify this system across the many federal agencies to assure that the dockets in all administrative cases to the greatest extent possible are publicly accessible through the web and that both the filing and service of documents may be accomplished easily on-line. To that end, EPA OALJ believes it would be beneficial if the OALJ offices in all the various agencies had a central or unified entity though which information on computerized case systems and other matters could be shared and standardized, similar to the work performed by the Administrative Office of the United States Courts for the federal judicial system.
Do you have any suggestions or comments about this federal administrative adjudication study?: 
OALJ believes that it is imperative for the study to adequately understand and distinguish between contested legally and factually complex administrative hearings held for example by EPA ALJs, which are almost identical to Federal District Court bench trials, and the simpler uncontested benefits request cases such as those processed by the thousands SSA ALJs. All of the EPA ALJs had prior experience as SSA ALJs, as well as experience with adjudicating cases for other Agencies such as MSPB, EEOC, PTO, IRS, NOAA, Agriculture, etc., and so are keenly and uniquely aware of the substantive and procedural differences among the various types of cases. As such, we believe it is difficult to meaningfully compare raw case numbers or processing time across the various agencies. The key criteria for evaluating the programs of the various Agencies should be whether the participants, both private and government, felt they received a fair and impartial adjudication in a timely manner.
Verified by Agency: 
Verified