US EPA Streamlines Appeals to Environmental Appeals Board



As of Sept. 21, 2020, the Environmental Appeals Board (EAB)—the body used to hear administrative appeals of permits issued by or on behalf of the U.S. Environmental Protection Agency (EPA)—will begin operating under a new set of procedural rules that will apply to appeals of certain permits issued under the Clean Air Act, the Clean Water Act, the Safe Drinking Water Act, and the Resource Conservation and Recovery Act.

In short, the rule changes are designed to streamline the current administrative appeal process and facilitate the speedy resolution of permit disputes. Provided below is a brief overview of the most pertinent procedural changes:

  • The EAB will now have 60 days to issue a decision after the last oral argument or brief is submitted. The EAB may grant itself a one-time 60-day extension if it determines the nature and complexity of the case require additional time.
  • Parties before the EAB are now limited to a one-time request for an extension of 30 days, which the EAB may grant or deny in its sole discretion.
  • Similar to challenges in federal court, the EAB will no longer be permitted to review EPA’s compliance with internal discretionary policies or executive orders.
  • Third parties seeking to weigh in on issues before the EAB (via amicus curiae briefs) must now submit filings within 21 days after the appeal is filed, and briefs are limited to 15 pages.
  • The EPA Administrator, by and through EPA’s Office of General Counsel, may now issue dispositive legal opinions on an applicable statute or EPA regulations, for use in any matter before the EAB.
  • Moving forward, only published decisions of the EAB will represent EPA’s official and controlling position regarding the issue addressed in such decision.

These procedural changes will apply only to appeals filed after Sept. 21, 2020. Appeals filed before the effective date will remain unaffected. Furthermore, entities will still be required to exhaust their administrative remedies by filing an appeal with the EAB before challenging a permitting decision in federal court.

The forthcoming procedural rule changes should combat the frequently drawn-out and open-ended appeals process before the EAB and facilitate quicker resolution of permit disputes for regulated entities.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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