Environmental Permitting, Special Topics in Environmental Management

EPA Looks to Trim Authority of Environmental Appeals Board

With the goal of expediting resolution of objections to permits issued by the EPA under major environmental statutes, the Agency is proposing amendments to regulations governing its Environmental Appeals Board (EAB). Among the seven proposed revisions, the most significant would strengthen the role of the alternative dispute resolution (ADR) program. Other parts of the proposal would reduce authorities the EAB now possesses, also with the objective of shortening the wait before stakeholders can execute the terms of their permits.

EPA Headquarters

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“[The proposal is] designed to streamline the current administrative appeal process and to provide appropriate checks and balances on how the EAB exercises its delegated authority,” says the EPA.

The proposed rule would apply to permits issued by or on behalf of the EPA under the Clean Air Act, Clean Water Act, Safe Drinking Water Act, and Resource Conservation and Recovery Act.

Reduced Volume of Appeals

The EAB was created in 1992 to hear administrative appeals of enforcement actions and EPA-issued permits. In the intervening years, the EAB’s role in permit appeals has changed as more states and tribes have assumed permitting authority under the federal environmental statutes. The increased state role has substantially reduced the number of permits issued by the EPA and therefore the number of appeals heard by the EAB. (The EAB does not hear appeals of state-issued permits.) Since January 1, 2016, a total of 50 permit appeals have been filed with the EAB affecting a total of 40 permits.

Alternative Dispute Resolution

In 2010, the EAB launched its voluntary ADR program to assist parties in resolving disputes before the EAB, including permit appeals.

“The EAB established this ADR program to promote faster resolution of issues and more creative, satisfying, and enduring solutions; to foster a culture of respect and trust among EPA, its stakeholders, and its employees and to improve working relationships; to promote compliance with environmental laws and regulations; to expand stakeholder support for Agency programs; and to promote better environmental outcomes,” says the EPA

According to the Agency, as it is currently implemented by the EAB, the ADR process has been highly successful with more than 90 percent of cases that have gone through the program resolved without litigation. The proposal would change the ADR from a voluntary opt-in process to an opt-out process. In other words, all parties involved in an appeal would be required to first engage with an EAB settlement judge in ADR discussions. Only when the discussions do not result in resolution would the parties proceed with an EAB appeal. The parties may also decide by unanimous consent to extend the ADR process beyond the standard 30-day window.

Discretionary EPA Policies Off Limits

Other parts of the proposal would:

  • Limit the EAB’s scope and standard of review to findings of fact and conclusions of law that are clearly erroneous. The EAB would no longer review the EPA’s compliance with discretionary policies—that is, issues that a federal court generally could not review.
  • Prohibit the EAB from accepting amicus curiae briefs.
  • Eliminate the EAB’s authority to review permit decisions on its own initiative, even absent a private party appeal. The EPA says the EAB rarely invokes this authority.
  • Establish a 60-day deadline for the EAB to issue a final decision once an appeal has been fully briefed.
  • Set a 12-year term for EAB judges, which the administrator may renew at the end of that period or reassign the judge to another position within the Agency.
  • Establish a mechanism by which the administrator, by and through the General Counsel, can issue a dispositive legal interpretation in any matter pending before the EAB or any issue addressed by the EAB. (Such an interpretation is intended to bring about the settlement of the disputed issue(s).)