[Code of Federal Regulations]

[Title 40, Volume 23]

[Revised as of July 1, 2006]

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

[CITE: 40CFR164.101]



[Page 175-176]

 

                   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.  164.101  Appeals from or review of initial decisions.



    (a) Exceptions and request for oral argument. (1) Within 20 days 

after the filing of the Administrative Law Judge's initial decision, 

each party may take exception to any matter set forth in such decision 

or to any adverse order or ruling to which he objected during the 

hearing and may appeal such exceptions to the Environmental Appeals 

Board for decision by filing them in writing with the hearing clerk, 

including a section containing proposed findings of fact, conclusions, 

orders, or rulings. Within the same period of time each party filing 

exceptions and amicus curiae shall file with the hearing clerk a brief 

concerning each of the exceptions being appealed. The party shall 

include, in its brief, page references to the relevant portions of the 

record and to the Administrative Law Judge's initial decision.

    (2) Within 7 days of the service of exceptions, and of a brief under 

paragraph (a)(1) of this section, any other party or amicus curiae may 

file and serve a brief responding to exceptions or arguments raised by 

any other party. Such brief shall include references to the relevant 

portions of the record. Such brief shall not, however, raise additional 

exceptions.

    (3) Five copies of all material filed under this section shall be 

filed with the hearing clerk.

    (b) Review by Administrator when no exceptions are filed. If no 

exceptions are filed within the time provided, the hearing clerk shall 

notify the Administrator 30 days from the date of filing of the 

Administrative Law Judge's initial decision. Within 10 days after said 

notification, the Environmental Appeals



[[Page 176]]



Board shall issue an order either declining review of the initial 

decision or expressing its intent to review said initial decision. Such 

order may include a statement of issues to be briefed by the parties and 

a time schedule concerning service and filing of briefs adequate to 

allow the Environmental Appeals Board to issue a final order within 90 

days from the close of the hearing.

    (c) Argument before the Environmental Appeals Board. (1) A party, if 

he files exceptions and a brief, shall state in writing whether he 

desires to make an oral argument thereon before the Environmental 

Appeals Board; otherwise, he shall be deemed to have waived such oral 

argument. The Environmental Appeals Board shall, however, on its own 

initiative, have the right to set an appeal for oral argument.

    (2) If the Environmental Appeals Board determines that additional 

exceptions should be argued, counsel for the parties shall be given 

reasonable written notice of such determination so as to permit 

preparation of adequate argument on all of the exceptions to be argued.



[38 FR 19371, July 20, 1973, as amended at 57 FR 5343, Feb. 13, 1992]