40 CFR 78.1 – Purpose and scope
(a)(1)(i) This part shall govern appeals of any final decision of the Administrator under:
Terms Used In 40 CFR 78.1
- Appeal: A request made after a trial, asking another court (usually the court of appeals) to decide whether the trial was conducted properly. To make such a request is "to appeal" or "to take an appeal." One who appeals is called the appellant.
- Presiding officer: A majority-party Senator who presides over the Senate and is charged with maintaining order and decorum, recognizing Members to speak, and interpreting the Senate's rules, practices and precedents.
(A) Part 72, 73, 74, 75, 76, or 77 of this chapter;
(B) Subparts A through J of part 97 of this chapter;
(C) Subparts AA through II, AAA through III, or AAAA through IIII of part 96 of this chapter; subparts AA through II, AAA through III, or AAAA through IIII of part 97 of this chapter; or State regulations approved under § 51.123(o)(1) or (2) or (aa)(1) or (2) or § 51.124(o)(1) or (2) of this chapter;
(D) Subpart AAAAA, BBBBB, CCCCC, DDDDD, EEEEE, FFFFF, or GGGGG of part 97 of this chapter or State regulations approved under § 52.38(a)(4) or (5) or (b)(4), (5), (8), (9), (11), or (12) or § 52.39(e), (f), (h), or (i) of this chapter; or
(E) Subpart RR of part 98 of this chapter.
(ii) Notwithstanding paragraph (a)(1)(i) of this section, matters listed in § 78.3(d) and preliminary, procedural, or intermediate decisions, such as draft Acid Rain permits, may not be appealed.
(iii) All references in paragraph (b) of this section and in § 78.3 to subparts AA through II of part 96 of this chapter, subparts AAA through III of part 96 of this chapter, and subparts AAAA through IIII of part 96 of this chapter shall be read to include the comparable provisions in State regulations approved under § 51.123(o)(1) or (2) of this chapter, § 51.124(o)(1) or (2) of this chapter, and § 51.123(aa)(1) or (2) of this chapter, respectively.
(iv) All references in paragraph (b) of this section and in § 78.3 to subpart AAAAA of part 97 of this chapter, subpart BBBBB of part 97 of this chapter, subpart CCCCC of part 97 of this chapter, subpart DDDDD of part 97 of this chapter, subpart EEEEE of part 97 of this chapter, and subpart GGGGG of part 97 of this chapter shall be read to include the comparable provisions in State regulations approved under § 52.38(a)(4) or (5) of this chapter, § 52.38(b)(4) or (5) of this chapter, § 52.39(e) or (f) of this chapter, § 52.39(h) or (i) of this chapter, § 52.38(b)(8) or (9) of this chapter, and § 52.38(b)(11) or (12) of this chapter, respectively.
(2) Filing an appeal, and exhausting administrative remedies, under this part shall be a prerequisite to seeking judicial review. For purposes of judicial review, final agency action occurs only when a decision appealable under this part is issued and the procedures under this part for appealing the decision are exhausted.
(b) The decisions of the Administrator that may be appealed include but are not limited to:
(1) Under part 72 of this chapter,
(i) The determination of incompleteness of an Acid Rain permit application;
(ii) The issuance or denial of an Acid Rain permit and approval or disapproval of a compliance option by the Administrator;
(iii) The approval or disapproval of an early ranking application for Phase I extension under § 72.42 of this chapter;
(iv) The final determination of whether a technology is a qualified repowering technology under § 72.44 of this chapter;
(v) [Reserved]
(vi) The approval or disapproval of a permit revision;
(vii) The decision on the deduction or return of allowances under §§ 72.41, 72.42, 72.43, 72.44, 72.91(b), and 72.92 (a) and (c) of this chapter; and
(viii) The failure to issue an Acid Rain permit in accordance with the deadline under § 72.74(b) of this chapter.
(2) Under part 73 of this chapter,
(i) The correction of an error in an Allowance Tracking System account;
(ii) The decision on the allocation of allowances from the Conservation and Renewal Energy Reserve;
(iii) The decision on the allocation of allowances under regulations implementing sections 404(e), 405(g)(4), 405(i)(2), and 410(h) of the Act;
(iv) The decision on the allocation of allowances under subpart F of part 73 of this chapter;
(v) The decision on the sale or return of allowances and transfer of proceeds under subpart E of part 73 of this chapter; and
(vi) The decision on the deduction of allowances under § 73.35(b) of this chapter.
(3) Under part 74 of this chapter,
(i) The determination of incompleteness of an opt-in permit application;
(ii) The issuance or denial of an opt-in permit and approval or disapproval of the transfer of allowances for the replacement of thermal energy;
(iii) The approval or disapproval of a permit revision to an opt-in permit; and
(iv) The decision on the deduction or return of allowances under subpart E of part 74 of this chapter.
(4) Under part 75 of this chapter,
(i) The decision on a petition for approval of an alternative monitoring system;
(ii) The approval or disapproval of a monitoring system certification or recertification;
(iii) The finalization of annual emissions data, including retroactive adjustment based on audit;
(iv) The determination of the percentage of emissions reduction achieved by qualifying Phase I technology; and
(v) The determination on the acceptability of parametric missing data procedures for a unit equipped with add-on controls for sulfur dioxide and nitrogen oxides in accordance with part 75 of this chapter.
(5) Under part 77 of this chapter, the determination of incompleteness of an offset plan and the approval or disapproval of an offset plan under § 77.4 of this chapter and the deduction of allowances under § 77.5(c) of this chapter.
(6) Under subparts A through J of part 97 of this chapter,
(i) The adjustment of the information in a compliance certification or other submission and the deduction or transfer of NO
(ii) The decision on the allocation of NO
(iii) The decision on the allocation of NO
(iv) The decision on the deduction of NO
(v) The decision on the transfer of NO
(vi) The decision on a petition for approval of an alternative monitoring system;
(vii) The approval or disapproval of a monitoring system certification or recertification under § 97.71 of this chapter;
(viii) The finalization of control period emissions data, including retroactive adjustment based on audit;
(ix) The approval or disapproval of a petition under § 97.75 of this chapter;
(x) The determination of the sufficiency of the monitoring plan for a NO
(xi) The decision on a request for withdrawal of a NO
(xii) The decision on the deduction of NO
(xiii) The decision on the allocation of NO
(7) Under subparts AA through II of part 96 of this chapter,
(i) The decision on the allocation of CAIR NO
(ii) The decision on the deduction of CAIR NO
(iii) The correction of an error in a CAIR NO
(iv) The decision on the transfer of CAIR NO
(v) The finalization of control period emissions data, including retroactive adjustment based on audit;
(vi) The approval or disapproval of a petition under § 96.175 of this chapter.
(8) Under subparts AAA through III of part 96 of this chapter,
(i) The decision on the deduction of CAIR SO
(ii) The correction of an error in a CAIR SO
(iii) The decision on the transfer of CAIR SO
(iv) The finalization of control period emissions data, including retroactive adjustment based on audit;
(v) The approval or disapproval of a petition under § 96.275 of this chapter.
(9) Under subparts AAAA through IIII of part 96 of this chapter,
(i) The decision on the allocation of CAIR NO
(ii) The decision on the deduction of CAIR NO
(iii) The correction of an error in a CAIR NO
(iv) The decision on the transfer of CAIR NO
(v) The finalization of control period emissions data, including retroactive adjustment based on audit;
(vi) The approval or disapproval of a petition under § 96.375 of this chapter.
(10) Under subparts AA through II of part 97 of this chapter,
(i) The decision on the allocation of CAIR NO
(ii) The decision on the deduction of CAIR NO
(iii) The correction of an error in a CAIR NO
(iv) The decision on the transfer of CAIR NO
(v) The finalization of control period emissions data, including retroactive adjustment based on audit;
(vi) The approval or disapproval of a petition under § 97.175 of this chapter.
(11) Under subparts AAA through III of part 97 of this chapter,
(i) The decision on the deduction of CAIR SO
(ii) The correction of an error in a CAIR SO
(iii) The decision on the transfer of CAIR SO
(iv) The finalization of control period emissions data, including retroactive adjustment based on audit;
(v) The approval or disapproval of a petition under § 97.275 of this chapter.
(12) Under subparts AAAA through IIII of part 97 of this chapter,
(i) The decision on the allocation of CAIR NO
(ii) The decision on the deduction of CAIR NO
(iii) The correction of an error in a CAIR NO
(iv) The decision on the transfer of CAIR NO
(v) The finalization of control period emissions data, including retroactive adjustment based on audit;
(vi) The approval or disapproval of a petition under § 97.375 of this chapter.
(13) Under subpart AAAAA of part 97 of this chapter,
(i) The calculation of an allocation of CSAPR NO
(ii) The decision on the transfer of CSAPR NO
(iii) The decision on the deduction of CSAPR NO
(iv) The correction of an error in an Allowance Management System account under § 97.427 of this chapter.
(v) The adjustment of information in a submission and the decision on the deduction and transfer of CSAPR NO
(vi) The finalization of control period emissions data, including retroactive adjustment based on audit.
(vii) The approval or disapproval of a petition under § 97.435 of this chapter.
(14) Under subpart BBBBB of part 97 of this chapter,
(i) The calculation of an allocation of CSAPR NO
(ii) The decision on the transfer of CSAPR NO
(iii) The decision on the deduction of CSAPR NO
(iv) The correction of an error in an Allowance Management System account under § 97.527 of this chapter.
(v) The adjustment of information in a submission and the decision on the deduction and transfer of CSAPR NO
(vi) The finalization of control period emissions data, including retroactive adjustment based on audit.
(vii) The approval or disapproval of a petition under § 97.535 of this chapter.
(viii) The decision on the deduction of CSAPR NO
(15) Under subpart CCCCC of part 97 of this chapter,
(i) The calculation of an allocation of CSAPR SO
(ii) The decision on the transfer of CSAPR SO
(iii) The decision on the deduction of CSAPR SO
(iv) The correction of an error in an Allowance Management System account under § 97.627 of this chapter.
(v) The adjustment of information in a submission and the decision on the deduction and transfer of CSAPR SO
(vi) The finalization of control period emissions data, including retroactive adjustment based on audit.
(vii) The approval or disapproval of a petition under § 97.635 of this chapter.
(16) Under subpart DDDDD of part 97 of this chapter,
(i) The calculation of an allocation of CSAPR SO
(ii) The decision on the transfer of CSAPR SO
(iii) The decision on the deduction of CSAPR SO
(iv) The correction of an error in an Allowance Management System account under § 97.727 of this chapter.
(v) The adjustment of information in a submission and the decision on the deduction and transfer of CSAPR SO
(vi) The finalization of control period emissions data, including retroactive adjustment based on audit.
(vii) The approval or disapproval of a petition under § 97.735 of this chapter.
(17) Under subpart EEEEE of part 97 of this chapter,
(i) The calculation of an allocation of CSAPR NO
(ii) The decision on the transfer of CSAPR NO
(iii) The decision on the deduction of CSAPR NO
(iv) The correction of an error in an Allowance Management System account under § 97.827 of this chapter.
(v) The adjustment of information in a submission and the decision on the deduction and transfer of CSAPR NO
(vi) The finalization of control period emissions data, including retroactive adjustment based on audit.
(vii) The approval or disapproval of a petition under § 97.835 of this chapter.
(viii) The decision on the deduction of CSAPR NO
(ix) The decision on the recall of allocations of CSAPR NO
(18) Under subpart FFFFF of part 97 of this chapter,
(i) The calculation of an allocation of Texas SO
(ii) The decision on the transfer of Texas SO
(iii) The decision on the deduction of Texas SO
(iv) The correction of an error in an Allowance Management System account under § 97.927 of this chapter.
(v) The adjustment of information in a submission and the decision on the deduction and transfer of Texas SO
(vi) The finalization of control period emissions data, including retroactive adjustment based on audit.
(vii) The approval or disapproval of a petition under § 97.935 of this chapter.
(19) Under subpart GGGGG of part 97 of this chapter:
(i) The calculation of a dynamic trading budget under § 97.1010(a)(4) of this chapter.
(ii) The calculation of an allocation of CSAPR NO
(iii) The decision on the transfer of CSAPR NO
(iv) The decision on the deduction of CSAPR NO
(v) The correction of an error in an Allowance Management System account under § 97.1027 of this chapter.
(vi) The adjustment of information in a submission and the decision on the deduction and transfer of CSAPR NO
(vii) The finalization of control period emissions data, including retroactive adjustment based on audit.
(viii) The approval or disapproval of a petition under § 97.1035 of this chapter.
(20) Under subpart RR of part 98 of this chapter,
(i) The decision on eligibility for a research and development exemption under § 98.440(d) of this chapter.
(ii) The approval or disapproval of a request for discontinuation of reporting under § 98.441(b) of this chapter.
(iii) The approval or disapproval of a geologic sequestration monitoring, reporting, and verification (MRV) plan under § 98.448(c) or (d) of this chapter.
(c) In order to appeal a decision under paragraph (a) of this section, a person shall file a petition for administrative review with the Environmental Appeals Board under § 78.3. The Environmental Appeals Board will, consistent with § 78.6, either:
(1) Issue an order deciding the appeal; or
(2) Where there is a disputed issue of fact material to the contested portions of the decision, refer the proceeding to the Chief Administrative Law Judge, who will designate an Administrative Law Judge to conduct an evidentiary hearing to decide the disputed issue of fact. If the proposed decision is contested or the Environmental Appeals Board decides to review the proposed decision, the Environmental Appeals Board will issue an order deciding the appeal.
(d) Questions arising at any stage of a proceeding that are not addressed in this part will be resolved at the discretion of the Environmental Appeals Board or the Presiding Officer.