[Code of Federal Regulations]
[Title 40, Volume 14]
[Revised as of July 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 40CFR78.1]

[Page 469-471]
 
                   TITLE 40--PROTECTION OF ENVIRONMENT
 
         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
 
PART 78--APPEAL PROCEDURES FOR ACID RAIN PROGRAM--Table of Contents
 
Sec. 78.1  Purpose and scope.

    (a)(1) This part shall govern appeals of any final decision of the 
Administrator under parts 72, 73, 74, 75, 76, and 77 of this chapter; 
provided that matters listed Sec. 78.3(d) and preliminary, procedural, 
or intermediate decisions,

[[Page 470]]

such as draft Acid Rain permits, may not be appealed.
    (2) Filing an appeal, and exhausting administrative remedies, under 
this part shall be a prerequisite to seeking judicial review. For 
purposes of judicial review, final agency action occurs only when a 
decision appealable under this part is issued and the procedures under 
this part for appealing the decision are exhausted.
    (b) The decisions of the Administrator that may be appealed include 
but are not limited to:
    (1) Under part 72 of this chapter;
    (i) The determination of incompleteness of an Acid Rain permit 
application;
    (ii) The issuance or denial of an Acid Rain permit and approval or 
disapproval of a compliance option by the Administrator;
    (iii) The approval or disapproval of an early ranking application 
for Phase I extension under Sec. 72.42 of this chapter;
    (iv) The final determination of whether a technology is a qualified 
repowering technology under Sec. 72.44 of this chapter;
    (v) [Reserved]
    (vi) The approval or disapproval of a permit revision;
    (vii) The decision on the deduction or return of allowances under 
Secs. 72.41, 72.42, 72.43, 72.44, 72.91(b), and 72.92 (a) and (c) of 
this chapter; and
    (viii) The failure to issue an Acid Rain permit in accordance with 
the deadline under Sec. 72.74(b) of this chapter.
    (2) Under part 73 of this chapter,
    (i) The decision on a claim of error in a transfer recordation;
    (ii) The decision on the allocation of allowances from the 
Conservation and Renewal Energy Reserve;
    (iii) The decision on the allocation of allowances under regulations 
implementing sections 404(e), 405(g)(4), 405(i)(2), and 410(h) of the 
Act;
    (iv) The decision on the allocation of allowances under part 73, 
subpart F of this chapter;
    (v) The decision on the sale or return of allowances and transfer of 
proceeds under part 73, subpart E; and
    (vi) The decision on the deduction of allowances under Sec. 73.35(b) 
of this chapter.
    (3) Under part 74 of this chapter,
    (i) The determination of incompleteness of an opt-in permit 
application;
    (ii) The issuance or denial of an opt-in permit and approval or 
disapproval of the transfer of allowances for the replacement of thermal 
energy;
    (iii) The approval or disapproval of a permit revision to an opt-in 
permit;
    (iv) The decision on the deduction or return of allowances under 
subpart E of part 74 of this chapter;
    (4) Under part 75 of this chapter,
    (i) The decision on a petition for approval of an alternative 
monitoring system;
    (ii) The approval or disapproval of a monitoring system 
certification or recertification;
    (iii) The finalization of annual emissions data, including 
retroactive adjustment based on audit;
    (iv) The determination of the percentage of emissions reduction 
achieved by qualifying Phase I technology; and
    (v) The determination on the acceptability of parametric missing 
data procedures for a unit equipped with add-on controls for sulfur 
dioxide and nitrogen oxides in accordance with part 75 of this chapter.
    (5) Under part 77 of this chapter, the determination of 
incompleteness of an offset plan and the approval or disapproval of an 
offset plan under Sec. 77.4 of this chapter and the deduction of 
allowances under Sec. 77.5(c) of this chapter.
    (c) In order to appeal a decision under paragraph (a) of this 
section, a person shall file a petition for administrative review with 
the Environmental Appeals Board under Sec. 78.3. The Environmental 
Appeals Board will, consistent with Sec. 78.6, either:
    (1) Issue an order deciding the appeal; or
    (2) Where there is a disputed issue of fact material to the 
contested portions of the decision, refer the proceeding to the Chief 
Administrative Law Judge, who will designate an Administrative Law Judge 
to conduct an evidentiary hearing to decide the disputed issue of fact. 
If the proposed decision is contested or the Environmental Appeals Board 
decides to review the proposed decision, the Environmental Appeals Board 
will issue an order deciding the appeal.

[[Page 471]]

    (d) Questions arising at any stage of a proceeding that are not 
addressed in this part will be resolved at the discretion of the 
Environmental Appeals Board or the Presiding Officer.

[58 FR 3760, Jan. 11, 1993, as amended at 60 FR 17132, Apr. 4, 1995; 62 
FR 55488, Oct. 24, 1997; 66 FR 12978, Mar. 1, 2001]