[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: 40CFR78.20]

[Page 478-479]
 
                   TITLE 40--PROTECTION OF ENVIRONMENT
 
         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
 
PART 78--APPEAL PROCEDURES FOR ACID RAIN PROGRAM--Table of Contents
 
Sec. 78.20  Appeal of decision of Administrator or proposed decision to the 
Environmental Appeals Board.

    (a) Within 30 days after the issuance of a proposed decision by a 
Presiding Officer under this part, any party may appeal any matter set 
forth in the proposed decision, or any other order or ruling made during 
the proceeding to which the party objected during the proceeding before 
the Presiding Officer, by filing an objection with the Environmental 
Appeals Board. On appeal of

[[Page 479]]

an order, ruling, or proposed decision of a Presiding Officer:
    (1) The party filing the objection shall have the burden of going 
forward to show that the order, ruling, or proposed decision is based on 
a finding of fact or conclusion of law that is clearly erroneous; or a 
policy determination or exercise of discretion that is arbitrary and 
capricious or otherwise warrants review; and
    (2) The petitioner or the owners and operators shall have the burden 
of persuasion, as set forth in Sec. 78.12(a) (1) and (2) of this part.
    (b) Within 45 days (or other shorter, reasonable period established 
by the Environmental Appeals Board) after issuance of a proposed 
decision of a Presiding Officer, the Environmental Appeals Board may 
issue sua sponte in its discretion a notice of intent to review such 
proposed decision. The Environmental Appeals Board will serve such 
notice upon all parties to the proceeding.
    (c) Within a reasonable time following the filing of a petition for 
administrative review of a decision of the Administrator under Sec. 78.3 
of this part, or, if any issues raised by such petition are referred to 
the Presiding Officer, the filing of objections under paragraph (a) of 
this section or the issuance of a notice of intent to review under 
paragraph (b) of this section, the Environmental Appeals Board will 
issue an order affirming, reversing, modifying, or remanding the 
decision or proposed decision, as appropriate. Prior to issuing this 
order, the Environmental Appeals Board may provide an opportunity for 
parties to file additional briefs.
    (d) If the Environmental Appeals Board issues an order affirming, 
reversing, or modifying the decision of the Administrator, then the 
decision as supplemented or changed by the order, shall be final agency 
action.
    (e) If the Environmental Appeals Board issues an order affirming, 
reversing, or modifying the proposed decision, the proposed decision, as 
supplemented or changed by the order, shall be final agency action.
    (f) If the Environmental Appeals Board issues an order remanding the 
proceeding, then final agency action occurs upon completion of the 
remanded proceeding, including any appeals to the Environmental Appeals 
Board in the remanded proceeding.

[58 FR 3760, Jan. 11, 1993, as amended at 62 FR 55488, Oct. 24, 1997]