[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: 40CFR78.3]

[Page 471-472]
 
                   TITLE 40--PROTECTION OF ENVIRONMENT
 
         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
 
PART 78--APPEAL PROCEDURES FOR ACID RAIN PROGRAM--Table of Contents
 
Sec. 78.3  Petition for administrative review and request for evidentiary 
hearing.

    (a)(1) The following persons may petition for administrative review 
of a decision of the Administrator that is made under parts 72, 74, 75, 
76, and 77 of this chapter and that is appealable under Sec. 78.1(a) of 
this part:
    (i) The designated representative for the unit covered by the 
decision;
    (ii) The authorized account representative for an account covered by 
the decision; and
    (iii) Any interested person.
    (2) The following persons may petition for administrative review of 
a decision of the Administrator that is made under part 73 of this 
chapter and that is appealable under Sec. 78.1(a):
    (i) The authorized account representative for any Allowance Tracking 
System account covered by the decision; and
    (ii) With regard to the decision on the allocation of allowances 
from the Conservation and Renewable Energy Reserve, the certifying 
official whose application is covered by the decision.
    (b)(1) Within 30 days following issuance of a decision under 
Sec. 78.1 of this part by the Administrator, any person under paragraph 
(a) of this section may file a petition with the Environmental Appeals 
Board for administrative review of the decision. If no petition for 
administrative review of a decision under Sec. 78.1 of this part is 
filed within such period, the decision shall become final agency action 
and shall not meet the prerequisite for judicial review under 
Sec. 78.1(a)(2).
    (2) The petition may include a request for an evidentiary hearing to 
resolve any disputed issue of material fact concerning the decision.
    (3) At the same time that the petition for administrative review is 
filed, the petitioner shall:
    (i) Serve a copy of the petition on the designated representative or 
authorized account representative under paragraph (a)(1) and (2) of this 
section (unless the designated representative or authorized account 
representative is the petitioner) and the Administrator; and
    (ii) Mail a notice of the petition to the air pollution control 
agencies of affected States and any interested person.
    (c) The petition for administrative review under this part shall 
state with specificity:
    (1) Each material factual and legal issue alleged to be in dispute 
and any such factual issue for which an evidentiary hearing is sought;
    (2) A clear and concise statement of the nature and scope of the 
interest of the petitioner;
    (3) A clear and concise brief in support of the petition, explaining 
why the factual or legal issues are material and, if an evidentiary 
hearing is requested, why direct and cross-examination of witnesses is 
necessary to resolve such factual issues;
    (4) If an evidentiary hearing is requested, the time estimated to be 
necessary for an evidentiary hearing;
    (5) If an evidentiary hearing is requested, a certified statement 
that, in the event of an evidentiary hearing, and without cost or 
expense to any other party, any of the following persons shall be 
available to appear and testify:
    (i) The petitioner; and
    (ii) Any officer, director, employee, consultant, or agent of the 
petitioner.
    (6) Specific references to the contested portions of the decision; 
and
    (7) Any revised or alternative action of the Administrator sought by 
the petitioner as necessary to implement the

[[Page 472]]

requirements, purposes, or policies of title IV of the Act.
    (d) In no event shall a petition for administrative review be filed, 
or review be available under this part, with regard to:
    (1) Any provision or requirement of part 72, 73, 74, 75, 76, or 77 
of this chapter, including any standard requirement under Sec. 72.9 of 
this chapter and any emissions monitoring or reporting requirements 
under part 75 of this chapter;
    (2) The reliance by the Administrator on a certificate of 
representation submitted by a designated representative or a 
certification statement submitted by an authorized account 
representative under the Acid Rain Program; and
    (3) Actions of the Administrator under sections 112(r), 113, 114, 
120, 301, and 303 of the Act.

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