[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: 40CFR27.39]

[Page 309]
 
                   TITLE 40--PROTECTION OF ENVIRONMENT
 
               CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY
 
PART 27_PROGRAM FRAUD CIVIL REMEDIES--Table of Contents
 
Sec. 27.39  Appeal to authority head.

    (a) Any defendant who has filed a timely answer and who is 
determined in an initial decision to be liable for a civil penalty or 
assessment may appeal such decision to the Environmental Appeals Board 
by filing a notice of appeal with the hearing clerk in accordance with 
this section.
    (b)(1) A notice of appeal may be filed at any time within 30 days 
after the presiding officer issues an initial decision. However, if 
another party files a motion for reconsideration under Sec. 27.38, 
consideration of the appeal shall be stayed automatically pending 
resolution of the motion for reconsideration.
    (2) If a motion for reconsideration is timely filed, a notice of 
appeal may be filed within 30 days after the presiding officer denies 
the motion or issues a revised initial decision, whichever applies.
    (3) The Environmental Appeals Board may extend the initial 30 day 
period for an additional 30 days if the defendant files a request for an 
extension within the initial 30 day period and shows good cause.
    (c) If the defendant filed a timely notice of appeal, and the time 
for filing motions for reconsideration under Sec. 27.38 has expired, 
the presiding officer shall forward the record of the proceeding to the 
Environmental Appeals Board.
    (d) A notice of appeal shall be accompanied by a written brief 
specifying exceptions to the initial decision and reasons supporting the 
exceptions.
    (e) The representative for the Government may file a brief in 
opposition to exceptions within 30 days of receiving the notice of 
appeal and accompanying brief.
    (f) There is no right to appear personally before the Environmental 
Appeals Board.
    (g) There is no right to appeal any interlocutory ruling by the 
presiding officer.
    (h) In reviewing the initial decision, the Environmental Appeals 
Board shall not consider any objection that was not raised before the 
presiding officer unless a demonstration is made of extraordinary 
circumstances causing the failure to raise the objection.
    (i) If any party demonstrates to the satisfaction of the 
Environmental Appeals Board that additional evidence not presented at 
such hearing is material and that there were reasonable grounds for the 
failure to present such evidence at such hearing, the Environmental 
Appeals Board shall remand the matter to the presiding officer for 
consideration of such additional evidence.
    (j) The Environmental Appeals Board may affirm, reduce, reverse, 
compromise, remand, or settle any penalty or assessment, determined by 
the presiding officer in any initial decision.
    (k) The Environmental Appeals Board shall promptly serve each party 
to the appeal with a copy of the decision of the Environmental Appeals 
Board and a statement describing the right of any person determined to 
be liable for a civil penalty or assessment to seek judicial review.
    (l) Unless a petition for review is filed as provided in 31 U.S.C. 
3805 after a defendant has exhausted all administrative remedies under 
this part and within 60 days after the date on which the Environmental 
Appeals Board serves the defendant with a copy of the Environmental 
Appeals Board's decision, a determination that a defendant is liable 
under Sec. 27.3 is final and is not subject to judicial review.

[45 FR 24363, Apr. 9, 1980, as amended at 57 FR 5327, Feb. 13, 1992]