[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: 40CFR78.6]

[Page 473]
 
                   TITLE 40--PROTECTION OF ENVIRONMENT
 
         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
 
PART 78--APPEAL PROCEDURES FOR ACID RAIN PROGRAM--Table of Contents
 
Sec. 78.6  Action on petition for administrative review.

    (a) If no evidentiary hearing concerning the petition for review is 
requested or is to be held, the Environmental Appeals Board will issue 
an order under Sec. 78.20(c) of this part.
    (b)(1) The Environmental Appeals Board may grant a request for an 
evidentiary hearing, or schedule an evidentiary hearing sua sponte, if 
the Environmental Appeals Board finds that there are disputed issues of 
fact material to contested portions of the decision and determines, in 
its discretion, that an opportunity for direct- and cross-examination of 
witnesses may be necessary in order to resolve these factual issues.
    (2) To the extent the Environmental Appeals Board grants a request 
for an evidentiary hearing, in whole or in part, it will:
    (i) Identify the portions of the decision that have been contested, 
and the disputed factual issues that have been raised by the petitioner 
with regard to which the evidentiary hearing has been granted; and
    (ii) Refer the disputed factual issues to the Chief Administrative 
Law Judge for decision and, in its discretion, may also refer all or a 
portion of the remaining legal, policy, or factual issues to the Chief 
Administrative Law Judge for decision.
    (3)(i) After issues are referred to the Chief Administrative Law 
Judge, he or she will designate an Administrative Law Judge as Presiding 
Officer to conduct the evidentiary hearing.
    (ii) Notwithstanding paragraph (b)(3)(i) of this section, if all 
parties waive in writing their right to have an Administrative Law Judge 
designated as the Presiding Officer, the Administrator may designate a 
lawyer permanently or temporarily employed by EPA and without any prior 
connection with the proceeding to serve as Presiding Officer.

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