January 17, 2020

EPA Proposes to Modernize and Streamline Permit Appeals

On December 3, 2019, EPA proposed a set of procedural rules that would streamline and modernize part of the agency’s permitting process by creating a new, time-limited alternative dispute resolution (ADR) process as a precondition to judicial review of permit disputes. The proposal would also impact how interested parties interact with the Environmental Appeals Board (EAB), length of service on the EAB, and how the EAB must rule based on the EPA Administrator’s legal interpretations. [84 FR 66084]

The EAB, an independent portion of EPA’s Office of Administration and Resources Management, “is the final Agency decision maker on administrative appeals under all major environmental statutes that the Agency administers.” It is a group of judges and staff lawyers who hear cases pertaining to permitting and civil penalty appeals. If, for example, a city or a group of citizens did not like the terms of a treatment, storage, and disposal facility’s RCRA permit or a manufacturer’s CAA Title V permit, they could appeal to the EAB. The affected parties may have the EAB hear the case similarly to how civil or criminal cases are conducted, or the parties could “opt-in” to the Alternative Dispute Resolution (ADR) program. Under the EAB’s voluntary ADR program, the Board mediates by assisting the affected parties in finding an acceptable resolution and issues an order dismissing the appeal. If not all issues are resolved, the Board issues an order returning the unresolved issues to the EAB’s active docket for resolution.

EPA’s proposed rule includes seven elements, some of which are procedural and some of which are regulatory:

  1. Establishing a new ADR process—Under the proposal, the ADR program would be switched from an “opt-in” process to an “opt-out process.” An interested party (such as a citizen’s group) would have 30 days after notice of the issuance of a permit decision to file a dispute notice with the EAB to contest certain permit conditions. The filed notice would need to certify the party filed comments or participated in a public hearing regarding the permit. Or, the party could show the final permit deviates from the proposed draft permit. Each party would then file summaries, and the assigned EAB judge would meet privately with each party to provide a confidential oral assessment of their case. At the conclusion of the meetings, the parties may decide by unanimous consent to either extend the ADR process or proceed with an appeal before the EAB. If the parties do not both agree to proceed with either the ADR process or an EAB appeal, the notice of dispute would be dismissed, the permit would become final, and the permit could then be challenged in federal court. If promulgated, this new ADR process would apply only to permit decisions issued on or after the effective date of the procedural rule. The proposal would not apply to any current permit appeals.
  2. Clarifying the EAB’s scope and standard of review in permit appeals—Existing 40 CFR 124.19(a)(4)(i) alows two bases for permit challenges: 1) a finding of fact or conclusion of law that is erroneous, or 2) an exercise of discretion or an important policy consideration that the EAB should, in its discretion, review. The proposal would remove the second basis, which currently authorizes the EAB to independently review EPA policy.
  3. Eliminating amicus curiae participation—An amicus curiae brief is a legal document allowing a non-litigant to provide information to the court, even though the non-litigant is not participating directly in the appeal. EPA believes the public comment period during the draft permit process, coupled with the proposed new ADR process, is sufficient for interested parties to provide pertinent information. Thus, EPA is proposing to eliminate §124.19(e), which allows for the filing of an amicus curiae brief.
  4. Eliminating sua sponte reviewSua sponte means the EAB can review a permit decision on its own, without the need for an interested party to file a dispute notice. The proposed rule would eliminate this method of initiating permit review.
  5. Expediting the appeal process—EPA is proposing three changes to expedite the resolution of permit appeals to the EAB: 1) establishing a 60-day deadline for the EAB to issue a final decision, 2) limiting the length of EAB opinions, and 3) modifying §124.19(g) limiting each party to a one-time 30-day extension.
  6. Twelve-year terms for EAB judges—EPA sees benefits from the appointment of new judges filling vacancies and the retention of long-tenured judges. The proposed rule would add a new 40 CFR 1.25(e)(4) to limit an EAB judge’s term to a maximum of 12 years, with the option for a one-time renewal by the EPA Administrator.
  7. EPA Administrator’s legal interpretation—Finally, EPA proposed a new mechanism by which the Administrator can issue a dispositive legal interpretation in any matter before the EAB or on an issue addressed by the EAB. This legal interpretation would be binding on the EAB. Whereas legal briefs filed by EPA regions set forth the agency’s position on any relevant legal interpretations, the new mechanism would allow the EPA Administrator to issue a binding legal interpretation of any applicable statute or regulation at issue before the EAB. The mechanism would not be limited to permit appeals.


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