[Code of Federal Regulations]
[Title 40, Volume 1]
[Revised as of July 1, 2004]
From the U.S. Government Printing Office via GPO Access
[CITE: 40CFR22.30]

[Page 257-258]
 
                   TITLE 40--PROTECTION OF ENVIRONMENT
 
               CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY
 
PART 22_CONSOLIDATED RULES OF PRACTICE GOVERNING THE ADMINISTRATIVE 
 
               Subpart F_Appeals and Administrative Review
 
Sec. 22.30  Appeal from or review of initial decision.

    (a) Notice of appeal. (1) Within 30 days after the initial decision 
is served, any party may appeal any adverse order or ruling of the 
Presiding Officer by filing an original and one copy of a notice of 
appeal and an accompanying appellate brief with the Environmental 
Appeals Board (Clerk of the Board (Mail Code 1103B), United States 
Environmental Protection Agency, 1200 Pennsylvania Ave., NW., 
Washington, DC 20460. Hand deliveries may be made at Suite 600, 1341 G 
Street, NW.).). One copy of any document filed with the Clerk of the 
Board shall also be served on the Regional Hearing Clerk. Appellant also 
shall serve a copy of the notice of appeal upon the Presiding Officer. 
Appellant shall simultaneously serve one copy of the notice and brief 
upon all other parties and non-party participants. The notice of appeal 
shall summarize the order or ruling, or part thereof, appealed from. The 
appellant's brief shall contain tables of contents and authorities (with 
page references), a statement of the issues presented for review, a 
statement of the nature of the case and the facts relevant to the issues 
presented for review (with appropriate references to the record), 
argument on the issues presented, a short conclusion stating the precise 
relief sought, alternative findings of fact, and alternative conclusions 
regarding issues of law or discretion. If a timely notice of appeal is 
filed by a party, any other party may file a notice of appeal on any 
issue within 20 days after the date on which the first notice of appeal 
was served.
    (2) Within 20 days of service of notices of appeal and briefs under 
paragraph (a)(1) of this section, any other party or non-party 
participant may file with the Environmental Appeals Board an original 
and one copy of a response brief responding to argument raised by the 
appellant, together with reference to the relevant portions of the 
record, initial decision, or opposing brief. Appellee shall 
simultaneously serve one copy of the response brief upon each party , 
non-party participant, and the Regional Hearing Clerk. Response briefs 
shall be limited to the scope of the appeal brief. Further briefs may be 
filed only with the permission of the Environmental Appeals Board.

[[Page 258]]

    (b) Review initiated by the Environmental Appeals Board. Whenever 
the Environmental Appeals Board determines to review an initial decision 
on its own initiative, it shall file notice of its intent to review that 
decision with the Clerk of the Board, and serve it upon the Regional 
Hearing Clerk, the Presiding Officer and the parties within 45 days 
after the initial decision was served upon the parties. The notice shall 
include a statement of issues to be briefed by the parties and a time 
schedule for the filing and service of briefs.
    (c) Scope of appeal or review. The parties' rights of appeal shall 
be limited to those issues raised during the course of the proceeding 
and by the initial decision, and to issues concerning subject matter 
jurisdiction. If the Environmental Appeals Board determines that issues 
raised, but not appealed by the parties, should be argued, it shall give 
the parties reasonable written notice of such determination to permit 
preparation of adequate argument. The Environmental Appeals Board may 
remand the case to the Presiding Officer for further proceedings.
    (d) Argument before the Environmental Appeals Board. The 
Environmental Appeals Board may, at its discretion, order oral argument 
on any or all issues in a proceeding.
    (e) Motions on appeal. All motions made during the course of an 
appeal shall conform to Sec. 22.16 unless otherwise provided.
    (f) Decision. The Environmental Appeals Board shall adopt, modify, 
or set aside the findings of fact and conclusions of law or discretion 
contained in the decision or order being reviewed, and shall set forth 
in the final order the reasons for its actions. The Environmental 
Appeals Board may assess a penalty that is higher or lower than the 
amount recommended to be assessed in the decision or order being 
reviewed or from the amount sought in the complaint, except that if the 
order being reviewed is a default order, the Environmental Appeals Board 
may not increase the amount of the penalty above that proposed in the 
complaint or in the motion for default, whichever is less. The 
Environmental Appeals Board may adopt, modify or set aside any 
recommended compliance or corrective action order or Permit Action. The 
Environmental Appeals Board may remand the case to the Presiding Officer 
for further action.

[64 FR 40176, July 23, 1999, as amended at 68 FR 2204, Jan. 16, 2003]