40 CFR 78.3 - Petition for administrative review and request for evidentiary hearing.

§ 78.3 Petition for administrative review and request for evidentiary hearing.
(a)
(1) The following persons may petition for administrative review of a decision of the Administrator that is made under parts 72, 74, 75, 76, and 77 of this chapter and that is appealable under § 78.1(a) of this part:
(i) The designated representative for the unit covered by the decision;
(ii) The authorized account representative for an account covered by the decision; and
(iii) Any interested person with regard to the decision.
(2) The following persons may petition for administrative review of a decision of the Administrator that is made under part 73 of this chapter and that is appealable under § 78.1(a):
(i) The authorized account representative for any Allowance Tracking System account covered by the decision; and
(ii) With regard to the decision on the allocation of allowances from the Conservation and Renewable Energy Reserve, the certifying official whose application is covered by the decision.
(3) The following persons may petition for administrative review of a decision of the Administrator that is made under part 97 of this chapter and that is appealable under § 78.1(a) of this part:
(i) The NOX authorized account representative for the unit or any NOX Allowance Tracking System account covered by the decision; or
(ii) Any interested person with regard to the decision.
(4) The following persons may petition for administrative review of a decision of the Administrator that is made under subparts AA through II of part 96 of this chapter and that is appealable under § 78.1(a):
(i) The CAIR designated representative for a unit or source, or the CAIR authorized account representative for any CAIR NOX Allowance Tracking System account, covered by the decision; or
(ii) Any interested person with regard to the decision.
(5) The following persons may petition for administrative review of a decision of the Administrator that is made under subparts AAA through III of part 96 of this chapter and that is appealable under § 78.1(a):
(i) The CAIR designated representative for a unit or source, or the CAIR authorized account representative for any CAIR SO2 Allowance Tracking System account, covered by the decision; or
(ii) Any interested person with regard to the decision.
(6) The following persons may petition for administrative review of a decision of the Administrator that is made under subparts AAAA through IIII of part 96 of this chapter and that is appealable under § 78.1(a):
(i) The CAIR designated representative for a unit or source, or the CAIR authorized account representative for any CAIR Ozone Season NOX Allowance Tracking System account, covered by the decision; or
(ii) Any interested person with regard to the decision.
(7) The following persons may petition for administrative review of a decision of the Administrator that is made under subparts AA through II of part 97 of this chapter and that is appealable under § 78.1(a):
(i) The CAIR designated representative for a unit or source, or the CAIR authorized account representative for any CAIR NOX Allowance Tracking System account, covered by the decision; or
(ii) Any interested person with regard to the decision.
(8) The following persons may petition for administrative review of a decision of the Administrator that is made under subparts AAA through III of part 97 and that is appealable under § 78.1(a):
(i) The CAIR designated representative for a unit or source, or the CAIR authorized account representative for any CAIR SO2 Allowance Tracking System account, covered by the decision; or
(ii) Any interested person with regard to the decision.
(9) The following persons may petition for administrative review of a decision of the Administrator that is made under subparts AAAA through III of part 97 and that is appealable under § 78.1(a):
(i) The CAIR designated representative for a unit or source, or the CAIR authorized account representative for any CAIR Ozone Season NOX Allowance Tracking System account, covered by the decision; or
(ii) Any interested person with regard to the decision.
(10) The following persons may petition for administrative review of a decision of the Administrator that is made under subparts AAAAA, BBBBB, CCCCC, and DDDDD of part 97 of this chapter:
(i) The designated representative for a unit or source, or the authorized account representative for any Allowance Management System account, covered by the decision; or
(ii) Any interested person with regard to the decision.
(11) The following persons may petition for administrative review of a decision of the Administrator that is made under subpart RR of part 98 of this chapter:
(i) The owner or operator of a facility covered by the decision.
(ii) Any interested person with regard to the decision.
(b)
(1) Within 30 days following issuance of a decision under § 78.1 of this part by the Administrator, any person under paragraph (a) of this section may file a petition with the Environmental Appeals Board for administrative review of the decision. If no petition for administrative review of a decision under § 78.1 of this part is filed within such period, the decision shall become final agency action and shall not meet the prerequisite for judicial review under § 78.1(a)(2).
(2) The petition may include a request for an evidentiary hearing to resolve any disputed issue of material fact concerning the decision.
(3) At the same time that the petition for administrative review is filed, the petitioner shall:
(i) Serve a copy of the petition on the designated representative or authorized account representative under paragraph (a)(1), (2), and (10), and (a)(11) of this section (unless the designated representative or authorized account representative is the petitioner) or the NOX authorized account representative under paragraph (a)(3) of this section (unless the NOX authorized account representative is the petitioner) or the CAIR designated representative or CAIR authorized account representative under paragraph (a)(4), (5), (6), (7), (8), or (9) of this section (unless the CAIR designated representative or CAIR authorized account representative is the petitioner) and the Administrator; and
(ii) Mail a notice of the petition to the air pollution control agencies of affected States and any interested person.
(c) The petition for administrative review under this part shall state with specificity:
(1) Each material factual and legal issue alleged to be in dispute and any such factual issue for which an evidentiary hearing is sought;
(2) A clear and concise statement of the nature and scope of the interest of the petitioner;
(3) A clear and concise brief in support of the petition, explaining why the factual or legal issues are material and, if an evidentiary hearing is requested, why direct and cross-examination of witnesses is necessary to resolve such factual issues;
(4) If an evidentiary hearing is requested, the time estimated to be necessary for an evidentiary hearing;
(5) If an evidentiary hearing is requested, a certified statement that, in the event of an evidentiary hearing, and without cost or expense to any other party, any of the following persons shall be available to appear and testify:
(i) The petitioner; and
(ii) Any officer, director, employee, consultant, or agent of the petitioner.
(6) Specific references to the contested portions of the decision; and
(7) Any revised or alternative action of the Administrator sought by the petitioner as necessary to implement the requirements, purposes, or policies of title IV of the Act, subparts AA through II of part 96 of this chapter, subparts AAA through III of part 96 of this chapter, subparts AAAA through IIII of part 96 of this chapter, or part 97 of this chapter, as appropriate.
(d) In no event shall a petition for administrative review be filed, or review be available under this part, with regard to:
(1) Any provision or requirement of part 72, 73, 74, 75, 76, or 77 of this chapter, including any standard requirement under § 72.9 of this chapter and any emissions monitoring or reporting requirements under part 75 of this chapter;
(2) Any provision or requirement of part 97 of this chapter, including the standard requirements under § 97.6 of this chapter and any emission monitoring or reporting requirements under part 97 of this chapter.
(3) The reliance by the Administrator on a certificate of representation submitted by a designated representative or a certification statement submitted by an authorized account representative under the Acid Rain Program or on an account certificate of representation submitted by a NOX authorized account representative or an application for a general account submitted by a NOX authorized account representative under the NOX Budget Trading Program or on an certificate of representation submitted by a CAIR designated representative or an application for a general account submitted by a CAIR authorized account representative under subparts AA through II, subparts AAA through III, subparts AAAA through IIII of part 96 of this chapter or under part 97 of this chapter; and
(4) Actions of the Administrator under sections 112(r), 113, 114, 120, 301, and 303 of the Act.
(5) Any provision or requirement of subparts AA through II of part 96 of this chapter, including the standard requirements under § 96.106 of this chapter and any emission monitoring or reporting requirements.
(6) Any provision or requirement of subparts AAA through III of part 96 of this chapter, including the standard requirements under § 96.206 of this chapter and any emission monitoring or reporting requirements.
(7) Any provision or requirement of subparts AAAA through IIII of part 96 of this chapter, including the standard requirements under § 96.306 of this chapter and any emission monitoring or reporting requirements.
(8) Any provision or requirement of subparts AA through II of part 97 of this chapter, including the standard requirements under § 97.106 of this chapter and any emission monitoring or reporting requirements.
(9) Any provision or requirement of subparts AAA through III of part 97 of this chapter, including the standard requirements under § 97.206 of this chapter and any emission monitoring or reporting requirements.
(10) Any provision or requirement of subparts AAAA through IIII of part 97 of this chapter, including the standard requirements under § 97.306 of this chapter and any emission monitoring or reporting requirements.
(11) Any provision or requirement of subparts AAAAA, BBBBB, CCCCC, or DDDDD of part 97 of this chapter, including the standard requirements under § 97.406, § 97.506, § 97.606, or § 97.706 of this chapter and any emission monitoring or reporting requirements.
(12) Any provision or requirement of subpart RR of part 98 of this chapter.
[58 FR 3760, Jan. 11, 1993, as amended at 60 FR 17132, Apr. 4, 1995; 62 FR 55488, Oct. 24, 1997; 69 FR 21645, Apr. 21, 2004; 70 FR 25338, May 12, 2005; 71 FR 25379, Apr. 28, 2006; 75 FR 75078, Dec. 1, 2010; 76 FR 48379, Aug. 8, 2011]

Title 40 published on 2014-07-01

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