(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 Sec. 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 Sec. 51.123(o)(1) or (2) of this chapter, subparts AAA through III of part 96 of this chapter or State regulations approved under Sec. 51.124(o)(1) or (2) of this chapter, subparts AAAA through IIII of part 96 of this chapter or State regulations approved under Sec. 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 Sec. 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 Sec. 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 Sec. 60.24(h)(6)(i) or (ii) of this chapter, Sec. 51.123(o)(1) or (2) of this chapter, Sec. 51.124(o)(1) or (2) of this chapter, and Sec. 51.123(aa)(1) or (2) of this chapter, respectively.
(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 Sec. 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 Sec. 51.123(o)(1) or (2) of this chapter, subparts AAA through III of part 96 of this chapter or State regulations approved under Sec. 51.124(o)(1) or (2) of this chapter, subparts AAAA through IIII of part 96 of this chapter or State regulations approved under Sec. 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 Sec. 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 Sec. 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 Sec. 60.24(h)(6)(i) or (ii) of this chapter, Sec. 51.123(o)(1) or (2) of this chapter, Sec. 51.124(o)(1) or (2) of this chapter, and Sec. 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.
(b) The decisions of the Administrator that may be appealed include but are not limited to:
(1) Under part 72 of this chapter;
(i) The determination of incompleteness of an Acid Rain permit application;
(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 Sec. 72.42 of this chapter;
(iv) The final determination of whether a technology is a qualified repowering technology under Sec. 72.44 of this chapter;
(v) [Reserved]
(vi) The approval or disapproval of a permit revision;
(vii) The decision on the deduction or return of allowances under Sec. Sec. 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 Sec. 72.74(b) of this chapter.
(2) Under part 73 of this chapter,
(i) The correction of an error in an Allowance Tracking System account;
(ii) The decision on the allocation of allowances from the Conservation and Renewal Energy Reserve;
(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;
(iv) The decision on the allocation of allowances under part 73, subpart F of this chapter;
(v) The decision on the sale or return of allowances and transfer of proceeds under part 73, subpart E; and
(vi) The decision on the deduction of allowances under Sec. 73.35(b) of this chapter.
(3) Under part 74 of this chapter,
(i) The determination of incompleteness of an opt-in permit application;
(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;
(iii) The approval or disapproval of a permit revision to an opt-in permit;
(iv) The decision on the deduction or return of allowances under subpart E of part 74 of this chapter;
(4) Under part 75 of this chapter,
(i) The decision on a petition for approval of an alternative monitoring system;
(ii) The approval or disapproval of a monitoring system certification or recertification;
(iii) The finalization of annual emissions data, including retroactive adjustment based on audit;
(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 Sec. 77.4 of this chapter and the deduction of allowances under Sec. 77.5(c) of this chapter.
(6) Under part 97 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 Sec. 97.31 of this chapter;
(ii) The decision on the allocation of NOX allowances to a NOX Budget unit under Sec. 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 Sec. 97.43 of this chapter;
(iv) The decision on the deduction of NOX allowances under Sec. 97.54 of this chapter;
(v) The decision on the transfer of NOX allowances under Sec. 97.61 of this chapter;
(vi) The decision on a petition for approval of an alternative monitoring system;
(vii) The approval or disapproval of a monitoring system certification or recertification under Sec. 97.71 of this chapter;
(viii) The finalization of control period emissions data, including retroactive adjustment based on audit;
(ix) The approval or disapproval of a petition under Sec. 97.75 of this chapter;
(x) The determination of the sufficiency of the monitoring plan for a NOX Budget opt-in unit;
(xi) The decision on a request for withdrawal of a NOX Budget opt-in unit from the NOX Budget Trading Program under Sec. 97.86 of this chapter;
(xii) The decision on the deduction of NOX allowances under Sec. 97.87 of this chapter; and
(xiii) The decision on the allocation of NOX allowances to a NOX Budget opt-in unit under Sec. 97.88 of this chapter.
(7) Under subparts AA through II of part 96 of this chapter,
(i) The decision on the allocation of CAIR NOX allowances under Sec. 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 Sec. 96.154 of this chapter;
(iii) The correction of an error in a CAIR NOX Allowance Tracking System account under Sec. 96.156 of this chapter;
(iv) The decision on the transfer of CAIR NOX allowances under Sec. 96.161 of this chapter;
(v) The finalization of control period emissions data, including retroactive adjustment based on audit;
(vi) The approval or disapproval of a petition under Sec. 96.175 of this chapter.
(8) Under subparts AAA through III of part 96 of this chapter,
(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 Sec. 96.254 of this chapter;
(ii) The correction of an error in a CAIR SO2 Allowance Tracking System account under Sec. 96.256 of this chapter;
(iii) The decision on the transfer of CAIR SO2 allowances under Sec. 96.261 of this chapter;
(iv) The finalization of control period emissions data, including retroactive adjustment based on audit;
(v) The approval or disapproval of a petition under Sec. 96.275 of this chapter.
(9) Under subparts AAAA through IIII of part 96 of this chapter,
(i) The decision on the allocation of CAIR NOX Ozone Season allowances under Sec. 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 Sec. 96.354 of this chapter;
(iii) The correction of an error in a CAIR NOX Ozone Season Allowance Tracking System account under Sec. 96.356 of this chapter;
(iv) The decision on the transfer of CAIR NOX Ozone Season allowances under Sec. 96.361;
(v) The finalization of control period emissions data, including retroactive adjustment based on audit;
(vi) The approval or disapproval of a petition under Sec. 96.375 of this chapter.
(10) Under subparts AA through II of part 97 of this chapter,
(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 Sec. 97.154 of this chapter;
(iii) The correction of an error in a CAIR NOX Allowance Tracking System account under Sec. 97.156 of this chapter;
(iv) The decision on the transfer of CAIR NOX allowances under Sec. 97.161 of this chapter;
(v) The finalization of control period emissions data, including retroactive adjustment based on audit;
(vi) The approval or disapproval of a petition under Sec. 97.175 of this chapter.
(11) Under subparts AAA through III of part 97 of this chapter,
(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 Sec. 97.254 of this chapter;
(ii) The correction of an error in a CAIR SO2 Allowance Tracking System account under Sec. 97.256 of this chapter;
(iii) The decision on the transfer of CAIR SO2 allowances under Sec. 97.261 of this chapter;
(iv) The finalization of control period emissions data, including retroactive adjustment based on audit;
(v) The approval or disapproval of a petition under Sec. 97.275 of this chapter.
(12) Under subparts AAAA through IIII of part 97 of this chapter,
(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 Sec. 97.354 of this chapter;
(iii) The correction of an error in a CAIR NOX Ozone Season Allowance Tracking System account under Sec. 97.356 of this chapter;
(iv) The decision on the transfer of CAIR NOX Ozone Season allowances under Sec. 97.361;
(v) The finalization of control period emissions data, including retroactive adjustment based on audit;
(vi) The approval or disapproval of a petition under Sec. 97.375 of this chapter.
(13) Under subpart AAAAA of part 97 of this chapter,
(i) The decision on allocation of TR NOX Annual allowances under Sec. 97.411(a)(2) and (b) of this chapter.
(ii) The decision on the transfer of TR NOX Annual allowances under Sec. 97.423 of this chapter.
(iii) The decision on the deduction of TR NOX Annual allowances under Sec. Sec. 97.424 and 97.425 of this chapter.
(iv) The correction of an error in an Allowance Management System account under Sec. 97.427 of this chapter.
(v) The adjustment of information in a submission and the decision on the deduction and transfer of TR NOX Annual allowances based on the information as adjusted under Sec. 97.428 of this chapter.
(vi) The finalization of control period emissions data, including retroactive adjustment based on audit.
(vii) The approval or disapproval of a petition under Sec. 97.435 of this chapter.
(14) Under subpart BBBBB of part 97 of this chapter,
(i) The decision on allocation of TR NOX Ozone Season allowances under Sec. 97.511(a)(2) and (b) of this chapter.
(ii) The decision on the transfer of TR NOX Ozone Season allowances under Sec. 97.523 of this chapter.
(iii) The decision on the deduction of TR NOX Ozone Season allowances under Sec. Sec. 97.524 and 97.525 of this chapter.
(iv) The correction of an error in an Allowance Management System account under Sec. 97.527 of this chapter.
(v) The adjustment of information in a submission and the decision on the deduction and transfer of TR NOX Ozone Season allowances based on the information as adjusted under Sec. 97.528 of this chapter.
(vi) The finalization of control period emissions data, including retroactive adjustment based on audit.
(vii) The approval or disapproval of a petition under Sec. 97.535 of this chapter.
(15) Under subpart CCCCC of part 97 of this chapter,
(i) The decision on allocation of TR SO2 Group 1 allowances under Sec. 97.611(a)(2) and (b) of this chapter.
(ii) The decision on the transfer of TR SO2 Group 1 allowances under Sec. 97.623 of this chapter.
(iii) The decision on the deduction of TR SO2 Group 1 allowances under Sec. Sec. 97.624 and 97.625 of this chapter.
(iv) The correction of an error in an Allowance Management System account under Sec. 97.627 of this chapter.
(v) The adjustment of information in a submission and the decision on the deduction and transfer of TR SO2 Group 1 allowances based on the information as adjusted under Sec. 97.628 of this chapter.
(vi) The finalization of control period emissions data, including retroactive adjustment based on audit.
(vii) The approval or disapproval of a petition under Sec. 97.635 of this chapter.
(16) Under subpart DDDDD of part 97 of this chapter,
(i) The decision on allocation of TR SO2 Group 2 allowances under Sec. 97.711(a)(2) and (b) of this chapter.
(ii) The decision on the transfer of TR SO2 Group 1 allowances under Sec. 97.723 of this chapter.
(iii) The decision on the deduction of TR SO2 Group 1 allowances under Sec. Sec. 97.724 and 97.725 of this chapter.
(iv) The correction of an error in an Allowance Management System account under Sec. 97.727 of this chapter.
(v) The adjustment of information in a submission and the decision on the deduction and transfer of TR SO2 Group 1 allowances based on the information as adjusted under Sec. 97.728 of this chapter.
(vi) The finalization of control period emissions data, including retroactive adjustment based on audit.
(vii) The approval or disapproval of a petition under Sec. 97.735 of this chapter.
(17) Under subpart RR of part 98 of this chapter,
(i) A determination of eligibility for research and development exemption under Sec. 98.440(d) of this chapter.
(ii) The approval or disapproval of a request for discontinuation of reporting under Sec. 98.441(b) of this chapter.
(iii) The approval or disapproval of a geologic sequestration monitoring, reporting, and verification (MRV) plan under Sec. 98.448(c) and Sec. 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 Sec. 78.3. The Environmental Appeals Board will, consistent with Sec. 78.6, either:
(1) Issue an order deciding the appeal; or
(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. [58 FR 3760, Jan. 11, 1993, as amended at 60 FR 17132, Apr. 4, 1995; 62 FR 55488, Oct. 24, 1997; 66 FR 12978, Mar. 1, 2001; 69 FR 21644, Apr. 21, 2004; 70 FR 25338, May 12, 2005; 71 FR 25379, Apr. 28, 2006; 72 FR 59205, Oct. 19, 2007; 75 FR 75078, Dec. 1, 2010; 76 FR 48378, Aug. 8, 2011]