As you have been previously notified, I have been designated to preside in the above captioned matter. (Order of Redesignation, June 23, 1997.) This proceeding arises under Section 3008 of the Solid Waste Disposal Act as amended by the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6928 et seq. This case has been pending since the filing of the initial complaint dated November 15, 1989. On May 1, 1996, Administrative Law Judge Greene granted EPA's Motion for Accelerated Decision as to Liability. Thus, substantively, the issue of an appropriate penalty remains. Currently pending before the undersigned are various motions which will be disposed of with this Order.

On May 22, 1997,⁽¹⁾ Respondent filed a motion requesting discovery in this matter. The motion requests the production of various documents by complainant. These documents deal with the calculation of the proposed penalty in this case. In addition, respondent requests the taking of depositions of certain EPA witnesses also for the purpose of determining the calculation of the penalty.

By filing dated June 11th, Complainant filed a motion requesting an extension of time to reply to Respondent's Motion for Discovery and EPA's Response to Respondent's Motion for Discovery. In its motion for extension of time EPA states that illness (pneumonia) and duties surrounding the recent death of counsel's mother prevented the timely filing of the response to respondent's Motion for Discovery. This motion for extension of time is unopposed by respondent.⁽²⁾

It is this Administrative Law Judge's view that good cause has been shown for the delay in responding to respondents' Motion. Given the circumstances, EPA counsel's delay rises to the level of "excusable neglect" as defined by 40 C.F.R. § 22.07(b). Therefore, complainant's Motion for Extension of Time to Reply to Respondent's Motion for Discovery is hereby Granted.

I next look to the Motion for Discovery itself and the EPA's Reply thereto. EPA objects to providing the documents requested on the grounds that they are "otherwise available" to respondent. EPA asserts that respondent recently filed a Freedom of Information Act ("FOIA") request to obtain these documents and that "EPA has begun the process involved in providing them."

40 C.F.R. § 22.19 (f) (1) states:

[f]urther discovery, under this section, shall be permitted only

upon determination by the Presiding Officer:

(i) That such discovery will not in any way unreasonably delay

the proceeding;

(ii) That the information to be obtained is not otherwise

obtainable; and

(iii) That such information has significant probative value.

Measuring the request against these regulatory factors and comparing the FOIA request with the documents at issue in respondent's motion for discovery, it appears that these documents are "otherwise obtainable" via the FOIA request and that preparations were underway as early as June 9th to provide this information to respondent.⁽³⁾ Therefore, respondent's request for the production of documents is Denied. However, counsel for EPA is reminded to oversee that the

FOIA information is provided to respondent.

As to the request for the depositions of EPA witnesses Jonathan Libber (BEN/ABEL Coordinator, EPA Office of Regulatory Enforcement); and the EPA representative who prepared the civil penalty calculations in this case, I look to 40 C.F.R. §22.19 (f) (2) which states:

The Presiding Officer shall order depositions upon oral

questions only upon a showing of good cause and upon

a finding that:

(i) The information sought cannot be obtained by alternative

methods; or

(ii) There is a substantial reason to believe that relevant

and probative evidence may otherwise not be preserved

for presentation by a witness at the hearing.

Using these criteria, I find that there does exist an alternative method for obtaining this information. Namely, as described in complainant's response, the provision of "narrative explanations in affidavits by EPA personnel involved." The use of affidavits will inform respondent of these witnesses' expected testimony; they will presumably be sworn statements which can be used by respondent's counsel at the hearing much as deposition testimony could be used.

Complainant is hereby directed to provide, in a timely manner, affidavits from all witnesses it expects to testify at the hearing of this matter. The affidavits should provide a full summary of each witnesses expected testimony and refer to documents used in the formation of their opinions and conclusions. To the extent not already provided, all documents cited shall also be provided to respondent.

Further, the undersigned will provide ample opportunity at the hearing to allow respondent's counsel to fully explore these witnesses' testimony. Therefore, respondent's request for depositions in this matter is Denied.

Complainant's Motion for the Submission of the Penalty Issue for a Decision on Briefs and Other Supporting Documentation

The next motion pending is Complainant's Motion for the Submission of the Penalty Issue for a Decision on Briefs and Other Supporting Documentation dated May 23rd. Respondent filed by pleading dated June 6th their Response in Opposition to Complainant's Motion.

EPA asserts that their counsel is well versed in the facts of this case as well as all aspects of the penalty calculation and as such, complainant's counsel is "well qualified to present the Revised Penalty and supporting documentation in briefs."⁽⁴⁾ Respondent counters that among other matters, that "the decisional record in this case has not been fully developed. Spang intends at trial to present evidence not of record, including environmentally beneficial expenditures and activities undertaken."⁽⁵⁾

This matter is governed by our procedural rules at 40 C.F.R. § 22.15 (c) Request for hearing, it states:

A hearing upon the issues raised by the complaint and answer

shall be held upon the request of respondent in the answer.

(emphasis supplied)

Respondent notified the parties to this dispute in its original answer dated November 14, 1989 that they wanted a hearing to be held in this matter. They have consistently maintained this position throughout these proceedings. Section 22.15(c) is unequivocal in this respect. Respondent is entitled to a hearing in this matter. Therefore, complainant's Motion for the Submission of the Penalty Issue for Decision on Briefs is Denied.