40 CFR 78.6 - Action on petition for administrative review.
(a) If no evidentiary hearing concerning the petition for review is requested or is to be held, the Environmental Appeals Board will issue an order under § 78.20(c) of this part.
(1) The Environmental Appeals Board may grant a request for an evidentiary hearing, or schedule an evidentiary hearing sua sponte, if the Environmental Appeals Board finds that there are disputed issues of fact material to contested portions of the decision and determines, in its discretion, that an opportunity for direct- and cross-examination of witnesses may be necessary in order to resolve these factual issues.
(2) To the extent the Environmental Appeals Board grants a request for an evidentiary hearing, in whole or in part, it will:
(i) Identify the portions of the decision that have been contested, and the disputed factual issues that have been raised by the petitioner with regard to which the evidentiary hearing has been granted; and
(ii) Refer the disputed factual issues to the Chief Administrative Law Judge for decision and, in its discretion, may also refer all or a portion of the remaining legal, policy, or factual issues to the Chief Administrative Law Judge for decision.
(i) After issues are referred to the Chief Administrative Law Judge, he or she will designate an Administrative Law Judge as Presiding Officer to conduct the evidentiary hearing.
(ii) Notwithstanding paragraph (b)(3)(i) of this section, if all parties waive in writing their right to have an Administrative Law Judge designated as the Presiding Officer, the Administrator may designate a lawyer permanently or temporarily employed by EPA and without any prior connection with the proceeding to serve as Presiding Officer.