40 CFR § 78.19 - Interlocutory appeal.
(a) Interlocutory appeal from orders or rulings of the Presiding Officer made during the course of a proceeding may be taken if the Presiding Officer certifies those orders or rulings to the Environmental Appeals Board for interlocutory appeal on the record. Any requests to the Presiding Officer to certify an interlocutory appeal shall be filed within 10 days of notice of the order or ruling and shall state briefly the grounds for the request.
(b)
(1) Within 15 days of the filing of any request for interlocutory appeal, the Presiding Officer may certify an order or ruling for interlocutory appeal to the Environmental Appeals Board if:
(i) The order or ruling involves an important question on which there is substantial ground for difference of opinion, and
(ii) Either:
(A) An immediate appeal of the order or ruling will materially advance the ultimate completion of the proceeding, or
(B) A review after the proceeding is completed will be inadequate or ineffective.
(2) If the Presiding Officer takes no action within 15 days of the filing of a request for interlocutory appeal, the request shall be automatically dismissed without prejudice.
(c) If the Presiding Officer grants certification, the Environmental Appeals Board may accept or decline the interlocutory appeal within 30 days of certification. If the Environmental Appeals Board decides that certification was improperly granted, it will decline to hear the interlocutory appeal. If the Environmental Appeals Board takes no action within 30 days of certification, the interlocutory appeal shall be automatically dismissed without prejudice.
(d) If the Presiding Officer declines to certify an order or ruling for an interlocutory appeal, the order or ruling may be reviewed by the Environmental Appeals Board only upon an appeal of the proposed decision following completion of the proceedings before the Presiding Officer, except when the Environmental Appeals Board determines, upon motion of a party and in exceptional circumstances, that to delay review would not be in the public interest. Such motion shall be filed with the Environmental Appeals Board within 5 days after the earlier of automatic dismissal of the request for interlocutory appeal or receipt by the party of notification that the Presiding Officer declines to certify an order or ruling for interlocutory appeal.
(e) The failure of a party to request an interlocutory appeal shall not prevent an appeal of an order or ruling as part of an appeal of a proposed decision under § 78.20.