On Aug. 21, 2020, the U.S. Environmental Protection Agency (EPA) published its Final Rule, Streamlining Procedures for Permit Appeals, in the Federal Register (85 Fed. Reg. 51,650), which becomes effective Sept. 21 for all applicable appeals filed thereafter. This follows EPA's proposal for a more expansive rule, Modernizing the Administrative Exhaustion Requirement for Permitting Decisions and Streamlining Procedures for Permit Appeals, published on Dec. 3, 2019 (84 Fed. Reg. 66,084). The rulemaking addresses procedural rules of the Environmental Appeals Board (EAB), which oversees administrative appeals of certain permits where EPA is the permit-granting authority under the federal Clean Water Act National Pollution Discharge Elimination System (NPDES), Safe Drinking Water Act Underground Injection Control (UIC) program, the Resource Conservation and Recovery Act (RCRA) and certain permitting decisions under the Clean Air Act (CAA).
Approximately 30 parties commented, including environmental organizations, industry trade associations and representatives of tribes, municipalities and regional governmental entities. Comments are filed with www.regulations.gov at Docket ID No. EPA-HQ-OGC-2019-0406. Supporters of the proposal praised the EPA's effort to streamline permit appeals, which often are lengthy and time-consuming, resulting in voluminous opinions even where the appeal is dismissed on procedural grounds without reaching the merits.1 Opponents, however, thought the effort would reduce or eliminate transparency, public participation and the independence of the EAB judges. As a result of the comment process, the EPA decided not to adopt two of the more notable proposals, a process for mandatory alternative dispute resolution (ADR), which would have dramatically changed the exhaustion requirement for taking an appeal to federal court and elimination of amicus briefs by which non-parties, including community members, could weigh-in on issues raised in the appeal.
Seven of the proposals were adopted in the final rule:
- Removal of EAB's scope of review to eliminate review of EPA's exercise of discretion or important policy considerations
- Limiting amicus curiae briefs to 15 pages filed within the first 21 days of the proceeding
- Eliminating EAB's sua sponte authority for permit decisions
- Imposing deadlines to expedite the appeal, including a limit on extensions requested by parties and a deadline for issuing the decision
- Setting term limits of 12 years for EAB judges, allowing administrators to appoint new judges and transfer judges to other senior executive service positions
- Providing a process for the administrator to review each decision before publication to determine if it will have precedential effect and confirming that only published decisions will have such effect and warrant deference by reviewing courts
- Providing a process by which the administrator, through the general counsel, can issue a dispositive legal interpretation in any matter pending before the EAB or on any issue addressed by the EAB
EPA's rationale for most of these changes was to return to the administrator the statutory authority for final agency decisions, which had previously been delegated to the EAB in the 1992 rulemaking that created the EAB. It remains to be seen whether any party will seek to challenge these changes. Stay tuned.
1 For example, the EAB recently issued an Order Denying Review, which was 79 pages long in the appeal of an NPDES Permit issued to the City of Lowell, Massachusetts (NPDES Appeal No. 19-03 decided June 29, 2020).
Originally published by Holland & Knight, September 2020
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