[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: 40CFR78.12]

[Page 475]
 
                   TITLE 40--PROTECTION OF ENVIRONMENT
 
         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
 
PART 78--APPEAL PROCEDURES FOR ACID RAIN PROGRAM--Table of Contents
 
Sec. 78.12  Standard of review.

    (a) On appeal of a decision of the Administrator prior to which 
there was an opportunity for public comment, or to submit a claim of 
error notification:
    (1) Except as provided under paragraph (a)(2) of this section, the 
petitioner shall have the burden of going forward and of persuasion to 
show that a finding of fact or conclusion of law underlying the decision 
is clearly erroneous or that an exercise of discretion or policy 
determination underlying the decision is arbitrary and capricious or 
otherwise warrants review.
    (2) The owners and operators of the source or unit involved shall 
have the burden of persuasion that an Acid Rain permit was properly 
issued or should be issued.
    (b) On appeal of a decision of the Administrator not covered by 
paragraph (a) of this section, the Administrator shall have the burden 
of going forward to show the rational basis for the decision. The 
petitioner shall have the burden of persuasion to show that a finding of 
fact or conclusion of law underlying the decision is clearly erroneous 
or that an exercise of discretion or policy determination underlying the 
decision is arbitrary and capricious or otherwise warrants review.

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