|
§ 22.30
<br />(1) The order or ruling involves an
<br />important question of law or policy
<br />concerning which there is substantial
<br />grounds for difference of opinion; and
<br />(2) Either an immediate appeal from
<br />the order or ruling will materially ad-
<br />vance the ultimate termination of the
<br />proceeding, or review after the final
<br />order is issued will be inadequate or in-
<br />effective.
<br />(c) Interlocutory review. If the Pre-
<br />siding Officer has recommended review
<br />and the Environmental Appeals Board
<br />determines that interlocutory review is
<br />inappropriate, or takes no action with-
<br />in 30 days of the Presiding Officer's rec-
<br />ommendation, the appeal is dismissed.
<br />When the Presiding Officer declines to
<br />recommend review of an order or rul-
<br />ing, it may be reviewed by the Environ-
<br />mental Appeals Board only upon appeal
<br />from the initial decision, except when
<br />the Environmental Appeals Board de-
<br />termines, upon motion of. a party and
<br />in exceptional circumstances, that to
<br />delay review would be contrary to the
<br />public interest. Such motion shall be
<br />filed within 10 days of service of an
<br />order of the Presiding Officer refusing
<br />to recommend such order or ruling for
<br />interlocutory review.
<br />§ 22.30 Appeal .from or review of initial
<br />decision.
<br />(a) Notice of appeal. (1) Within 30 days
<br />after the initial decision is served, any
<br />party may appeal any adverse order or
<br />ruling of the Presiding Officer by filing
<br />an original and one copy of a notice of
<br />.appeal and an accompanying appellate
<br />brief with the Environmental Appeals
<br />-'Board. Appeals sent by U.S. mail (ex-
<br />cept by U.S. Postal.Express Mail) shall
<br />be addressed to the Environmental Ap-
<br />peals Board at its official mailing ad-
<br />dress: Clerk of the Board. (Mail Code
<br />1103B), United States Environmental
<br />Protection Agency, 1200 Pennsylvania
<br />Avenue, NW., Washington, DC 20460.
<br />Appeals delivered by hand or courier
<br />(including deliveries by U.S. Postal Ex-
<br />press Mail or by a commercial delivery.
<br />service) shall be delivered to Suite 600,
<br />1341. G Street, NW., Washington, DC
<br />20005. One copy of any document filed
<br />with the Clerk of the Board shall also
<br />be served on the Regional Hearing
<br />Clerk. Appellant also shall serve a copy
<br />of the notice of appeal upon the Pre-
<br />40 CFR Ch. 1 (7-1-05 Edition)
<br />siding Officer. Appellant shall simulta-
<br />neously serve one copy of the notice
<br />and brief upon all other parties and
<br />non-party participants. The notice of
<br />appeal - shall summarize the order or
<br />ruling, or part thereof, appealed from.
<br />The appellant's brief shall contain ta-
<br />bles of contents and authorities (with
<br />page references), a statement of the
<br />issues presented for review, a state-
<br />ment of the nature of the case and the
<br />facts relevant to the issues presented
<br />for review (with appropriate references
<br />to the record), argument on the issues
<br />presented; a short conclusion stating.
<br />the precise relief sought, alternative
<br />findings of fact, and. alternative con-
<br />clusions regarding issues of law or dis-
<br />cretion. If a timely notice of appeal is
<br />filed by a_party, any other party may
<br />file a notice of appeal on any issue
<br />within 20 days after the date on which
<br />the first notice of appeal was served.
<br />(2) Within 20 days of service of no-
<br />tices of appeal and briefs under para-
<br />graph (a)(1) of this section, any other
<br />party or non-party participant may file
<br />with the Environmental Appeals Board
<br />an original and one copy of a response
<br />brief responding to argument raised by
<br />the appellant, together with reference
<br />to the relevant portions of the record,
<br />initial, decision, or opposing brief. Ap-
<br />pellee shall simultaneously serve one
<br />copy of the response brief upon each
<br />party , non-party participant, and the
<br />Regional Hearing Clerk. Response
<br />briefs shall be limited to the scope of
<br />the appeal brief. Further briefs may be
<br />filed only with the permission of the
<br />Environmental Appeals Board.
<br />(b) Review initiated by the Environ-
<br />mental Appeals Board. Whenever the En-
<br />vironmental Appeals Board determines
<br />to review an initial decision on its own
<br />initiative, it shall file notice of its in-
<br />tent to review that decision with- the
<br />Clerk of the Board, and serve it upon
<br />the Regional Hearing Clerk, the Pre-
<br />siding Officer and the parties within 45
<br />days after the, initial decision was
<br />served upon the parties. The notice
<br />shall include a statement of issues to
<br />be briefed by the parties and a time
<br />schedule for the filing and service of
<br />briefs.
<br />(c) Scope of appeal or review. The par-
<br />ties' rights of appeal shall be limited to
<br />those issues raised during the course of
<br />Environmental Protection Agency
<br />the proceeding and by the initial deci-
<br />sion, and to issues concerning subject
<br />matter jurisdiction. If the. Environ-
<br />mental Appeals:Board determines that
<br />f issues raised, but not appealed by the
<br />parties, should be argued, it shall give
<br />the parties reasonable written notice of
<br />such determination to permit.prepara-
<br />tion of adequate argument. The Envi-
<br />ronmental Appeals Board may remand
<br />the case to the - Presiding Officer for
<br />further proceedings.
<br />(d) Argument before the. Environmental
<br />Appeals Board. The Environmental Ap-
<br />peals Board may, at its discretion,
<br />order oral argument on any or all
<br />issues in a proceeding.
<br />(e) Motions on appeal. All motions
<br />made during the course of an appeal
<br />shall conform to §22.16 unless other-
<br />wise provided.
<br />(f) Decision. The Environmental Ap-
<br />peals Board shall adopt, modify, or set
<br />aside the findings of fact and conclu-
<br />sions of law or discretion contained in
<br />the. decision or order being reviewed,
<br />and shall set forth in the final order
<br />the reasons for its actions. The Envi-
<br />ronmental Appeals Board may assess a
<br />penalty that is higher or lower than
<br />the amount recommended to be as-
<br />sessed in the decision or order being re-
<br />viewed or from the amount sought in
<br />the complaint, except that if the order
<br />being reviewed is a default order, the
<br />Environmental Appeals Board may not
<br />increase the amount of the penalty
<br />! above that proposed.in the complaint
<br />i or in the motion for default, whichever,
<br />is less. The Environmental Appeals
<br />Board may adopt,.modify. or set aside
<br />any recommended compliance or cor-
<br />rective action order or Permit Action.
<br />The Environmental Appeals Board may
<br />remand the case to the Presiding Offi-
<br />cer for further action.
<br />i [64 FR 40176, July 23, 1999, as amended at 68
<br />FR 2204, Jan. 16, 2003; 69 FR 77639, Dec. _28,
<br />2004)
<br />Subpart G-Final Order
<br />§ 22.31 Final order.
<br />(a) Effect of final order. A final order
<br />constitutes the final Agency action in
<br />a proceeding. The final order shall not
<br />in any -case affect the right of . the
<br />Agency or the United States to pursue
<br />appropriate -injunctive or other equi-
<br />§ 22.31
<br />table relief or criminal sanctions for
<br />any violations of law. The final order
<br />shall resolve only those causes of.ac-
<br />tion . alleged in the complaint, or for
<br />proceedings commenced pursuant to
<br />§22.13(b), alleged in the consent agree-
<br />ment. The final order does not waive,
<br />extinguish or otherwise affect respond-
<br />ent's obligation to comply with all ap-
<br />plicable provisions of the Act and regu-
<br />lations promulgated thereunder.
<br />(b) Effective date. A final order is ef-
<br />fective upon filing.. Where an initial de-
<br />cision becomes a final order pursuant
<br />to §22.27(c), the final order Is effective
<br />45 days after the initial decision is
<br />served on the parties:
<br />(c) Payment of a civil penalty. The re-
<br />spondent shall'pay the full amount of
<br />any civil penalty assessed in the final
<br />order within 30 days after the effective
<br />date of the final order unless otherwise
<br />ordered. Payment shall be made by
<br />sending a cashier's check or certified
<br />check to the payee specified in the
<br />complaint, unless otherwise instructed
<br />by the complainant. The check. shall
<br />note the case title and docket nmber.
<br />Respondent shall serve copies of the
<br />check or other instrument of payment
<br />on the Regional Hearing Clerk and on
<br />complainant. Collection of interest on
<br />overdue payments shall be in accord-
<br />ance with the Debt .Collection Act, 31
<br />U.S.C. 3717.
<br />(d) Other relief. Any final order re-
<br />quiring compliance or corrective ac-
<br />tion, or a Permit Action, shall become
<br />effective and enforceable without fur-
<br />ther proceedings on the effective date
<br />of the final order unless otherwise or-
<br />dered.
<br />(e) Final orders* to Federal agencies on
<br />appeal. (1) A final order of the Environ-
<br />mental Appeals Board issued pursuant
<br />to §22.30 to a department, agency, of
<br />instrumentality of the United State:
<br />shall become effective 30 days after it:
<br />service upon the parties unless the
<br />head of the affected department, agen-
<br />cy, or instrumentality requests a con-
<br />ference with the Administrator in writ-.
<br />ing and serves a copy of the request or
<br />the parties of record within 30 days o:
<br />service of the final order. If a timel3
<br />request is made, a decision by. the.Ad
<br />mini strator shall become the fina
<br />order.
<br />nrn
|