September 14, 2020

EPA Finalizes Process for Streamlining Permit Appeals

On August 21, 2020, EPA finalized a rule that streamlines procedures during permit appeals heard by the Environmental Appeals Board (EAB). [85 FR 51650] According to EPA, the rule “ensures a proper level of accountability and consistency in decision-making, streamlines the permitting process, and ultimately results in better and more efficient outcomes.” [85 FR 51654] The rule takes effect in all states on September 21, 2020.

The rule applies to those seeking to challenge EPA permitting decisions under the following:

• CWA’s National Pollutant Discharge Elimination System program;
• SDWA’s Underground Injection Control program;
• RCRA’s Part B permit program, including remedial action plans; and
• CAA’s Prevention of Significant Deterioration, Outer Continental Shelf, Title V, Tribal Major Non-Attainment NSR, and Tribal Minor NSR programs.

The final rule contains seven elements, compared to the eight proposed. Establishing a new alternative dispute resolution program was not finalized.

1. Clarifying the EAB’s scope of review in permit appeals—§124.19(a)(4)(i)(B) has been eliminated. The EAB may no longer independently review EPA policy, making the board’s review similar to that of a federal court.
2. Modifying 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. Initially, EPA proposed to eliminate this provision found in §124.19(e). Based on public comment, the agency is continuing to allow amicus participation, albeit with modifications. Amicus briefs must be filed within 21 days after the filing of the petition for review and are limited to no more than 15 pages.
3. Eliminating sua sponte review—The agency eliminated the EAB’s ability for sua sponte review. This means the board can no longer review a permit decision on its own, without the need for an interested party to file a dispute notice.
4. Expediting the appeal process—EPA finalized four changes to expedite the resolution of permit appeals to the EAB: 1) establishing a 60-day deadline for the EAB to issue a final resolution, 2) allowing the EAB a one-time 60-day extension based on the nature and complexity of the case, 3) limiting the length of EAB opinions, and 4) modifying §124.19(g) to limit each party to a one-time 30-day extension.
5. Twelve-year terms for EAB judges—40 CFR 1.25(e) is modified setting the terms of EAB judges to 12 years, with the option for a one-time renewal by the EPA Administrator. The terms of each of the four seats on the board are staggered at three-year intervals, meaning the initial term for the first seat ends in 2023, and each initial term for the other seats will end in 2026, 2029, and 2032.
6. Designating EAB decisions for publication—The final rule allows the EAB to determine which decisions will be published and the EPA Administrator has 15 days to review the decision and change the designation to an unpublished final order if desired. Only published decisions are considered precedential. The final rule formalizes this process, meaning only published decisions of the EAB represent EPA’s official, authoritative position regarding issues addressed in such decisions.
7. EPA Administrator’s legal interpretation—Finally, EPA created 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 is 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 allows the EPA Administrator to issue a binding legal interpretation of any applicable statute or regulation at issue before the EAB.

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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.