POHNPEI EPA HEARING REGULATIONS
Under and by virtue of the provisions of Pohnpei State Law No. 3L-26-92 and any other applicable laws, the following Hearing Regulations are hereby promulgated.
These regulations shall apply to all administrative and investigative hearings of the EPA, as authorized by State Law No. 3L26-92.
In these regulations, except to the extent that the context otherwise requires:
a. References to any legislation or to any provision of any legislation include any modification or reenactment of, or any legislative provision substituted for, and all statutory instruments issued under, such legislation or such provision.
b. Words denoting the singular include the plural and vice versa.
c. Words denoting any gender include all genders.
d. References to Sections, Subsections and Exhibits are references to those incorporated into these regulations.
e. References to any document include references to such document as amended or replaced from time to time.
As used herein, unless the.context otherwise requires, the term:
a. "Board" shall mean the Pohnpei State Environmental Protection Agency Board of Directors.
b. "EPA" shall mean the Pohnpei State Environmental Protection Agency.
c. "Person" shall mean the governments of Pohnpei, the Federated States of Micronesia, the United States or other foreign governments and every municipality and political subdivision of said governments, any public or private institution, corporation, partnership, joint venture, association, firm or company, any lessee or other occupant of property, and any individual acting singly or as part of a group.
d. "Presiding Officer" shall mean the Chairman of the Board; or in the Chairman's absence, the Vice Chairman of the Board; or in the absence of both the Chairman and Vice Chairman, the Secretary of the Board; or in the absence of all 3 of the above, if a quorum is present, a Presiding Officer will be decided by nomination and a unanimous vote.
e. "Party" shall mean each person with an interest in the proceedings.
a. Notices of the date, time, place and subject matter of administrative hearings required or permitted by S.L. 3L-26-92 or EPA regulations,must be served upon the person(s) who are the subject of the hearing by hand delivery. Said notice shall be served at least seven (7) days prior to the date of the hearing; PROVIDED that appearance at the hearing shall constitute a waiver of this requirement, and that after three attempts at delivery or in the case of refusal of delivery, notice per Part 2.1.b. shall be sufficient.
b. All other notices or documents shall be mailed, delivered or otherwise transmitted to the interested parties in a manner that will reasonably assure that those persons receive the notice or document.
c. Upon scheduling a hearing, the Board may issue subpoenas to either compel certain persons to attend the hearing, to be witnesses or to be questioned by the Board; or to compel the interested parties to bring certain documents or other physical evidence to the hearing, for the Board to review.
2.2. Conduct of Hearings.
Administrative hearings required or permitted by S.L. 3L-26-92 or EPA regulations shall be conducted in the following manner.
a. The hearing shall be conducted in an informal manner. Adherence to the rules of evidence shall not be required. The Board shall decide all procedural matters and issues of evidence by majority vote, with at least 4 assenting votes. In the event of a 3-3 tie, thePresiding officer shall decide the matter or issue in contention. The assistance and guidance of the Pohnpei's Attorney General shall be provided upon request of the Board.
b. All hearings shall be open to the public except when all parties agree to close the hearing.
c. Staff from the EPA, and/or other witnesses) shall present evidence and arguments to support the charges and allegations. The responding party shall be given a reasonable opportunity to respond and to present evidence, to review the evidence presented by the EPA staff and/or other witness(es), and to cross-examine witnesses. The responding party may be represented by legal counsel, but not at the expense of EPA.
d. The Board may address questions to any person involved in, or in attendance at, the hearing.
e. All witnesses shall testify under oath when presenting facts and documents to be considered by the Board.
f. The presiding officer may not consult a person or party or representative of a person or party on a fact in issue, unless notice and opportunity are given to allow all parties to participate, except to the extent required for the disposition of ex-parte matters as authorized by law.
g. Unduly disruptive conduct by any person at the hearing, or an attempt to unreasonably delay the hearing, mayresult in the removal of the disruptive person.
h. The Board may continue the hearing to a specific time, date and place. If appropriate, the Board may adjourn to personally view any property involved.
i. After hearing all testimony and evidence, the Board may go into an executive session by unanimous vote of all Board members present, closed to the public, to discuss findings, possible fines, and other penalties.
2.3. Board's Decision
The Board shall exercise reasonable effort to render a decision within 15 calendar days of the conclusion of,the presentation of all evidence. Failure to meet this time limit shall not, however, be grounds to invalidate or reverse the decision on appeal. The decision shall be in writing, and based upon at least 4 assenting votes. The decision shall include findings of fact and the conclusions drawn therefrom, and be signed by the Chairman of the EPA Board of Directors. A copy shall be hand delivered to the responding party; PROVIDED that after three (3) attempts at delivery, or in the case of refusal of delivery, a copy shall be mailed, delivered or otherwise transmitted to the responding party, in a manner which will reasonably assure receipt of the Board's decision.
Upon discovery of new evidence, the Board can, on its own, based upon at least 4 assenting votes, dissolve any previous
findings and penalties and conduct a new hearing.
In addition, any person, found by the Board to have violated an EPA rule or regulation, shall have the right to request reconsideration of the Board's decision within 14 alendar days of being served notice of the Board's findings. If the 14th day falls on a holiday or a weekend, the deadline for a request for reconsideration will be the next working day. The request for .reconsideration shall be delivered in writing, on or before the 14th (or deadline) day.
The Board shall respond to such request, and based on the Board's determination of the validity of evidence on which the request for reconsideration was made, may reconsider, based upon at least 4 assenting votes, the Board's original decision, or deny the request for reconsideration.
When any person has exhausted all administrative remedies before the Board, that person shall have the right to appeal any final order of the Board to the Pohnpei Supreme Court which shall have original jurisdiction over the matter.
Any person found guilty of violation of any of the provisions of this regulation shall be subject to enforcement action under Sections 12 and 14 of State Law No. 3L-26-92.
If any provision of these regulations or the application of any provision of these regulations to any person or circumstance is held invalid, the application of such provision to other persons or circumstances and the remainder of these regulations shall not be affected thereby.
Upon meeting the requirements of S . L. No- 2L-12- 80, these regulations shall
become effective o n the date they are signed by the Chairman, EPA Board of
Directors, and the Governor. These regulations have the force and effect of law.
/s/ Date: 4 - 3 - 95
Kikuo L. Apis
Board of Directors
/s/ Date: 4 /3/95
Johnny P. David
State of Pohnpei
Approved as to form by:
/s/ Date: 3 /30/ 95
State of Pohnpei