40 CFR 78.12 - Standard of review.

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§ 78.12 Standard of review.

(a) On appeal of a decision of the Administrator prior to which there was an opportunity for submission of public comments or objections:

(1) Except as provided under paragraph (a)(2) of this section, the petitioner shall have the burden of going forward and of persuasion to show that a finding of fact or conclusion of law underlying the decision is clearly erroneous or that an exercise of discretion or policy determination underlying the decision is arbitrary and capricious or otherwise warrants review.

(2) The owners and operators of the source or unit involved shall have the burden of persuasion that an Acid Rain permit NOX Budget permit, CAIR permit, or other federally enforceable permit was properly issued or should be issued.

(b) On appeal of a decision of the Administrator not covered by paragraph (a) of this section, the Administrator shall have the burden of going forward to show the rational basis for the decision. The petitioner shall have the burden of persuasion to show that a finding of fact or conclusion of law underlying the decision is clearly erroneous or that an exercise of discretion or policy determination underlying the decision is arbitrary and capricious or otherwise warrants review.

[58 FR 3760, Jan. 11, 1993, as amended at 62 FR 55488, Oct. 24, 1997; 66 FR 12978, Mar. 1, 2001; 69 FR 21645, Apr. 21, 2004; 70 FR 25339, May 12, 2005; 76 FR 48379, Aug. 8, 2011]

This is a list of United States Code sections, Statutes at Large, Public Laws, and Presidential Documents, which provide rulemaking authority for this CFR Part.

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United States Code

Title 40 published on 2015-07-01

The following are ALL rules, proposed rules, and notices (chronologically) published in the Federal Register relating to 40 CFR Part 78 after this date.

  • 2015-12-03; vol. 80 # 232 - Thursday, December 3, 2015
    1. 80 FR 75706 - Cross-State Air Pollution Rule Update for the 2008 Ozone NAAQS
      GPO FDSys XML | Text
      ENVIRONMENTAL PROTECTION AGENCY
      Proposed rule.
      Comments must be received on or before January 19, 2016. Under the Paperwork Reduction Act (PRA), comments on the information collection provisions are best assured of consideration if the Office of Management and Budget (OMB) receives a copy of your comments on or before January 4, 2016. Public hearing. The EPA will be holding one public hearing on the proposed Cross-State Air Pollution Rule Update for the 2008 Ozone National Ambient Air Quality Standards. The hearing will be held to accept oral comments on the proposal. The hearing will be held on December 17, 2015 in Washington, DC. The hearing will begin at 9 a.m. EST and will conclude at 8 p.m. EST. Additional information for this public hearing is available in a separate Federal Register notice and at http://www2.epa.gov/airmarkets/proposed-cross-state-air-pollution-update-rule .
      40 CFR Parts 52, 78, and 97