(a) Time
for reply to the Notice of Claim. Respondent must serve a reply to the
Notice of Claim in writing within 30 days following service of the Notice of Claim.
The reply is to be served in accordance with §386.6 upon the
(b) Options
for reply. The respondent must reply to the Notice of Claim within the time
allotted by choosing one of the following:
(b)(1) Paying the full amount asserted in
the Notice of Claim in accordance with §386.18
of this part;
(b)(2) Contesting the claim by requesting
administrative adjudication pursuant to paragraph (d) of this section; or
(b)(3) Seeking binding arbitration in
accordance with the Agency's program. Although the amount of the proposed
penalty may be disputed, referral to binding arbitration is contingent upon an
admission of liability that the violations occurred.
(c) Failure to answer the Notice of Claim.
(c)(1) Respondent's failure to answer the
Notice of Claim in accordance with paragraph (a) may result in the issuance of
a Notice of Default and Final Agency Order by the Field Administrator. The
Notice of Default and Final Agency Order will declare respondent to be in
default and further declare the Notice of Claim, including the civil penalty
proposed in the Notice of Claim, to be the Final Agency Order in the
proceeding. The Final Agency Order will be effective five days following
service of the Notice of Default and Final Agency Order.
(c)(2) The default constitutes an admission
of all facts alleged in the Notice of Claim and a waiver of respondent's
opportunity to contest the claim. The default will be reviewed by the Assistant
Administrator in accordance with §386.64(b),
and the Final Agency Order may be vacated where a respondent demonstrates
excusable neglect, a meritorious defense, or due diligence in seeking relief.
(c)(3) Failure to pay the civil penalty as
directed in a Final Agency Order constitutes a violation of that order,
subjecting the respondent to an additional penalty as prescribed in Subpart G
of this part.
(d) Request for administrative adjudication. The respondent may contest the claim and request administrative adjudication pursuant to paragraph (b)(2) of this section. An administrative adjudication is a process to resolve contested claims before the Assistant Administrator, Administrative Law Judge, or Hearing Officer. Once an administrative adjudication option is elected, it is binding on the respondent.
(d)(1) Contents.
In addition to the general requirements of this section, the reply must be in
writing and state the grounds for contesting the claim and must raise any
affirmative defenses the respondent intends to assert. Specifically, the reply:
(d)(1)(i) Must
admit or deny each separately stated and numbered allegation of violation in
the claim. A statement that the person is without sufficient knowledge or
information to admit or deny will have the effect of a denial. Any allegation
in the claim not specifically denied in the reply is deemed admitted. A mere
general denial of the claim is insufficient and may result in a default being
entered by the Agency decisionmaker upon motion by
the Field Administrator.
(d)(1)(ii) Must include all known
affirmative defenses, including those relating to jurisdiction, limitations,
and procedure.
(d)(1)(iii) Must state which one of the
following options respondent seeks:
(d)(1)(iii)(A) To submit written
evidence without hearing; or
(d)(1)(iii)(B) An informal hearing;
or
(d)(1)(iii)(C) A formal hearing.
[50 FR 40306, Oct. 2, 1985, as amended at 56 FR 10183, Mar. 11, 1991; 65 FR 7755, Feb. 16, 2000; 70 FR 28481 May 18, 2005].