78.1—Purpose and scope.
(a)
(1)
This part shall govern appeals of any final decision of the Administrator under subpart HHHH of part 60 of this chapter or State regulations approved under § 60.24(h)(6)(i) or (ii) of this chapter, part 72, 73, 74, 75, 76, or 77 of this chapter, subparts AA through II of part 96 of this chapter or State regulations approved under § 51.123(o)(1) or (2) of this chapter, subparts AAA through III of part 96 of this chapter or State regulations approved under § 51.124(o)(1) or (2) of this chapter, subparts AAAA through IIII of part 96 of this chapter or State regulations approved under § 51.123(aa)(1) or (2) of this chapter, part 97 of this chapter, or subpart RR of part 98; provided that matters listed in § 78.3(d) and preliminary, procedural, or intermediate decisions, such as draft Acid Rain permits, may not be appealed. All references in paragraph (b) of this section and in § 78.3 to subpart HHHH of part 60 of this chapter, 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 § 60.24(h)(6)(i) or (ii) of this chapter, § 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.
(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.
(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 ;
(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.
(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;
(v)
The decision on the sale or return of allowances and transfer of proceeds under part 73, subpart E; and
(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;
(iv)
The decision on the deduction or return of allowances under subpart E of part 74 of this chapter ;
(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.
(i)
The adjustment of the information in a compliance certification or other submission and the deduction or transfer of NOX allowances based on the information, as adjusted, under § 97.31 of this chapter ;
(ii)
The decision on the allocation of NOX allowances to a NOX Budget unit under § 97.41(b), (c), (d), or (e) of this chapter ;
(iii)
The decision on the allocation of NOX allowances to a NOX Budget unit from the compliance supplement pool under § 97.43 of this chapter ;
(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;
(xi)
The decision on a request for withdrawal of a NOX Budget opt-in unit from the NOX Budget Trading Program under § 97.86 of this chapter ;
(xiii)
The decision on the allocation of NOX allowances to a NOX Budget opt-in unit under § 97.88 of this chapter.
(i)
The decision on the allocation of CAIR NOX allowances under § 96.141(b)(2) or (c)(2) of this chapter.
(ii)
The decision on the deduction of CAIR NOX allowances, and the adjustment of the information in a submission and the decision on the deduction or transfer of CAIR NOX allowances based on the information as adjusted, under § 96.154 of this chapter ;
(iii)
The correction of an error in a CAIR NOX Allowance Tracking System account under § 96.156 of this chapter ;
(v)
The finalization of control period emissions data, including retroactive adjustment based on audit;
(i)
The decision on the deduction of CAIR SO2 allowances, and the adjustment of the information in a submission and the decision on the deduction or transfer of CAIR SO2 allowances based on the information as adjusted, under § 96.254 of this chapter ;
(ii)
The correction of an error in a CAIR SO2 Allowance Tracking System account under § 96.256 of this chapter ;
(iv)
The finalization of control period emissions data, including retroactive adjustment based on audit;
(i)
The decision on the allocation of CAIR NOX Ozone Season allowances under § 96.341(b)(2) or (c)(2) of this chapter.
(ii)
The decision on the deduction of CAIR NOX Ozone Season allowances, and the adjustment of the information in a submission and the decision on the deduction or transfer of CAIR NOX Ozone Season allowances based on the information as adjusted, under § 96.354 of this chapter ;
(iii)
The correction of an error in a CAIR NOX Ozone Season Allowance Tracking System account under § 96.356 of this chapter ;
(v)
The finalization of control period emissions data, including retroactive adjustment based on audit;
(i)
The decision on the allocation of CAIR NOX allowances under subpart EE of part 97 of this chapter.
(ii)
The decision on the deduction of CAIR NOX allowances, and the adjustment of the information in a submission and the decision on the deduction or transfer of CAIR NOX allowances based on the information as adjusted, under § 97.154 of this chapter ;
(iii)
The correction of an error in a CAIR NOX Allowance Tracking System account under § 97.156 of this chapter ;
(v)
The finalization of control period emissions data, including retroactive adjustment based on audit;
(i)
The decision on the deduction of CAIR SO2 allowances, and the adjustment of the information in a submission and the decision on the deduction or transfer of CAIR SO2 allowances based on the information as adjusted, under § 97.254 of this chapter ;
(ii)
The correction of an error in a CAIR SO2 Allowance Tracking System account under § 97.256 of this chapter ;
(iv)
The finalization of control period emissions data, including retroactive adjustment based on audit;
(i)
The decision on the allocation of CAIR NOX Ozone Season allowances under subpart EEEE of part 97 of this chapter.
(ii)
The decision on the deduction of CAIR NOX Ozone Season allowances, and the adjustment of the information in a submission and the decision on the deduction or transfer of CAIR NOX Ozone Season allowances based on the information as adjusted, under § 97.354 of this chapter ;
(iii)
The correction of an error in a CAIR NOX Ozone Season Allowance Tracking System account under § 97.356 of this chapter ;
(v)
The finalization of control period emissions data, including retroactive adjustment based on audit;
(i)
A determination of eligibility for 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) and § 98.448(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:
(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.