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January 31, 2013
Rule changes for EPA appeals board

In a final action, the EPA has reconciled procedures the Agency’s Environmental Appeals Board (EAB) uses when reviewing decisions about permitting made by the Agency with the actual regulations governing EAB’s review process. 

The principal revision eliminates the requirement that the EAB conduct a second round of briefing after an initial review of a substantive petition is conducted.  Other changes address information a petitioner must include in a petition to the EAB, specify that the petitioner must serve notice about the petition to the issuer of the permit as well as to the permit applicant if they are different entities, and require that in the petition the petitioner address any relevant response made by the issuer of a permit to a public comment made on a proposed permit decision and explain why that response was clearly erroneous or otherwise warrants review.

Permits under multiple statutes

The final action specifically contemplates federal permitting decisions regarding the Resource Conservation and Recovery Act (RCRA), the Underground Injection Control (UIC) program of the Safe Drinking Water Act, the National Pollutant Discharge Elimination System (NPDES) program of the Clean Water Act, and the Prevention of Significant Deterioration (PSD) program of the Clean Air Act.  The EPA notes that EAB actions dictated by the current regulatory language at 40 CFR parts 124 and 270 have been expanded and refined over time by EAB precedent, EAB standing orders, and EAB’s Practice Manual

“Revising the regulation to reflect current practice will provide clarity to practitioners before the Board, which will in turn make the appeals process more efficient by avoiding unnecessary filings and Board orders,” states the EPA.

Second substantive review

Regarding the requirement for a second substantive review, the EAB has shown that in nearly all cases, a decision can be made on the merits of the briefs initially submitted.  Accordingly, the current revisions specify that that substantive briefing must be submitted at the outset of the appeal and that generally only one substantive review will occur.  Nothing in the revisions prevent the EAB from ordering additional briefing after the first round for any matter where the Board determines that additional briefing may assist the Board in its deliberations.

Regarding required contents of the petition, the revisions clarify the threshold the petitioner must meet to demonstrate that the review is warranted.  The demonstration includes identification of the contested permit condition(s) or other specific challenges to the permit decision; petitioner’s contentions about why the permit decision should be reviewed, as well as a demonstration that any issue raised in the petition was raised previously during the public comment period (to the extent required); and if the permit issuer has responded to an issue previously raised, an explanation of why the permit issuer’s response to comments was inadequate.

Deadlines, withdrawals, and sanctions

In addition to the changes noted above, the final action addresses:
  • Filing deadlines for responses to petitions by the permit applicant and the permitting authority;
  • Explicit authorization and filing deadlines for interested persons to participate in an appeal by filing an amicus brief;
  • Specific format requirements and filing procedures for briefs and motions filed with the EAB;
  • Clarification that the permit issuer may unilaterally withdraw the permit at any time before 30 days after the permit issuer files its response; and 
  • Codification of EAB’s inherent authority to impose procedural sanctions for failure to comply with EAB orders and rules.

New Source Review

The EPA notes that one of the main goals of incorporating new language in the EAB regulations is to facilitate expeditious resolution of PSD and New Source Review (NSR) appeals.  “In effect, the procedures simplify and make more efficient the review process in PSD and other new source appeals (including OCS [Outer Continental Shelf] appeals) by imposing certain presumptions, tighter deadlines, briefing limitations, and other measures,” states the EPA.

EPA’s final action governing EAB’s procedural rules was published in the January 25, 2013, FR.

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