February 13, 2013

EAB Permit Appeals Procedure Revised

Anytime EPA issues, denies, modifies, revokes, reissues, or terminates a permit, the decision may be appealed to the agency’s Environmental Appeals Board (EAB). EPA revised the procedures surrounding the permit appeals process on January 25, 2013 [78 FR 5281].

The current procedures, codified in 40 CFR 124.19, apply to RCRA Part B permits and remedial action plans (RAPs), as well as permits issued under some other environmental programs. The revisions conform the regulations to EAB’s current standards and practices and include:

Requiring the petitioner and other “interested persons” to submit all required information at the onset of the petition review process, as most decisions are made during the initial briefing to the EAB;
Eliminating the rarely used second briefing, unless requested by the EAB;
Mandating that the petitioner notify the permit applicant (if not the same entity) and the permit issuer when the petition is filed;
Allowing for e-filing of petitions;
Setting response deadlines for both the permit petitioner and EAB;
Clarifying petition content requirements (e.g., word limits, formatting requirements);
Allowing petitioners to unilaterally withdraw petitions within 30-days of filing; and
Codifying EAB’s authority to impose procedural sanctions for failing to comply with EAB orders or rules.

The EAB has also updated its Practice Manual and Citizens’ Guide, both of which are available on the EAB website and following the EAB Guidance Documents link.

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This document addresses issues of a general nature related to the federal RCRA regulations. Persons evaluating specific circumstances dealing with the RCRA regulations should review state and local laws and regulations, which may be more stringent than federal requirements. In addition, the assistance of a qualified professional should be enlisted to address any site-specific circumstances.