July 15, 2021

Permit Appeals and EAB Independence Reinstated

In August 2020, EPA promulgated a rule meant to streamline permit appeals and alter the way the Environmental Appeals Board (EAB) functions. A review of this rule is found in a previous article. On June 11, 2021, the agency finalized a rule reversing the majority of these changes and reaffirming the EAB as an impartial body independent of all EPA departments except the Office of the Administrator. [86 FR 31172] This rule was effective upon publication in the Federal Register on June 11, 2021.

Under the new administration, EPA determined the 2020 rule adversely affected the appeals process related to permits issued 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 Nonattainment NSR (NNSR), and Tribal Minor NSR programs.

The only provisions of the 2020 rule that were not reversed are the permit appeal procedures of §124.19, applicable to permits issued to tribes in Indian Country under 40 CFR Part 49 (for NNSR and minor permits) and to Title V permits issued under 40 CFR Part 71. EPA found applying the same appeal procedures to these types of permits makes the appeals process more consistent, efficient, and transparent. All other aspects of the 2020 rule have been rescinded, including:

Removing amicus curiae limitations,
Reinstating sua sponte review,
Removing the 60-day deadlines and limited time extensions for permit appeals,
Eliminating twelve-year terms for EAB judges,
Removing the EPA Administrator’s ability to determine which EAB decisions should be categorized as published or unpublished, and
Preventing the EPA Administrator from issuing legally binding interpretations on 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.