[Code of Federal Regulations]

[Title 40, Volume 23]

[Revised as of July 1, 2005]

From the U.S. Government Printing Office via GPO Access

[CITE: 40CFR164.100]



[Page 177-178]

 

                   TITLE 40--PROTECTION OF ENVIRONMENT

 

         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)

 

PART 164_RULES OF PRACTICE GOVERNING HEARINGS, UNDER THE FEDERAL 

 

 Subpart B_General Rules of Practice Concerning Proceedings (Other Than 

                           Expedited Hearings)

 

Sec. 164.100  Appeals from or review of interlocutory orders or rulings.



    Except as provided herein, appeals as a matter of right shall lie to 

the Environmental Appeals Board only from an initial or accelerated 

decision of the Administrative Law Judge. Appeals from other orders or 

rulings shall, except as provided in this section, lie only if the 

Administrative Law Judge certifies such orders or rulings for appeal, or 

otherwise as provided. The Administrative Law Judge may certify an order 

or ruling for appeal to the Environmental Appeals Board when: (a) The 

order or ruling involves an important question of law or policy about 

which there is substantial ground for difference of opinion; and (b) 

either (1) an immediate appeal from the order and ruling will materially 

advance the ultimate termination of the proceeding or (2) review after 

the final judgment is issued will be inadequate or ineffective. The 

Administrative Law Judge shall certify orders or rulings for appeal only 

upon the request of a party. If the Environmental Appeals Board 

determines that certification was improvidently granted, or takes no 

action within thirty (30) days of the certification, the appeal shall be 

deemed dismissed. When an order or ruling is not certified by the 

Administrative Law Judge, it shall be reviewed by the Environmental 

Appeals Board only upon appeal from the initial or accelerated decision 

except when the Environmental Appeals



[[Page 178]]



Board determines, upon request of a party and in exceptional cir cum 

stanc es, that delaying review would be deleterious to vital public or 

private interests. Except in extraordinary circumstances proceedings 

will not be stayed pending an interlocutory appeal; where a stay is 

granted, a stay of more than 30 days must be approved by the 

Environmental Appeals Board. Ordinarily, the interlocutory appeal will 

be decided on the basis of the submission made to the Administrative Law 

Judge, but the Environmental Appeals Board may allow further briefs and 

oral argument.



[57 FR 5343, Feb. 13, 1992]