EPA Proposes to Significantly Streamline Its Permit Review Process

November 8, 2019

On Wednesday, November 6, the U.S. Environmental Protection Agency (EPA) announced its proposal to significantly streamline the agency’s permit review process and curtail the authority of the agency’s Environmental Appeals Board (EAB). The proposed procedural rule would apply to permits issued under the Clean Air Act (CAA), the Clean Water Act (CWA), the Safe Drinking Water Act (SDWA), and the Resource Conservation and Recovery Act (RCRA). Nothing in this proposal would affect the EAB’s adjudication of enforcement appeals.

Although the notice and comment requirements of the Administrative Procedure Act do not apply to this proposal, EPA is voluntarily seeking comments on all aspects of its proposed reforms. Companies and their trade associations should use this opportunity to share both their thoughts on EPA’s proposed changes and their experiences with EAB’s role in the permitting process. Comments are due thirty days after publication in the Federal Register.

EPA’s proposal would enact eight reforms to the EAB’s permit review process:

  1. Require Unanimous Agreement for EAB Review. After a notice of dispute is filed with the EAB and the parties participate in a mandatory thirty-day alternative dispute resolution (ADR) process, the parties must unanimously agree to extend the ADR process or proceed with an EAB appeal. If they do not unanimously agree, the permit would become final and challengeable in federal court.
  2. Limiting EAB’s Authority. EPA proposes to eliminate the EAB’s ability to review an exercise of discretion or “an important policy consideration.” This change would limit EAB’s scope and standard of review to findings of fact and conclusions of law that are “clearly erroneous.”
  3. No Sua Sponte Review. Under the proposal, EPA would eliminate the EAB’s authority to review regional permit decisions on its own initiative, thereby allowing the parties to determine whether the EAB should hear their dispute.
  4. New EAB Deadlines and Concise Opinions. EPA would create a sixty-day deadline for the EAB to issue a final decision after an appeal has been fully briefed and argued. The agency would allow, however, a one-time request per party to extend a filing deadline up to thirty days. The proposal also requires the EAB to write concise opinions that should be only as long as necessary to address the specific issues presented in the appeal.
  5. Dispositive Legal Determinations. EPA’s proposal will establish a mechanism by which the EPA Administrator, by and through the EPA General Counsel, can issue a dispositive legal interpretation in any matter pending before the EAB or on any issue addressed by the EAB. This proposal does not alter the authority of the Administrator to review or change any EAB decision.
  6. Identifying EAB Precedent. EPA is taking comment on whether the agency should create a process to identify which EAB decisions should be considered precedential. Specifically, the EPA General Counsel, acting on behalf of the EPA Administrator, would determine which EAB cases the agency should publish as precedential.
  7. No Amicus Curiae Briefs. EPA’s proposal would no longer permit the EAB to accept briefs filed by amicus curiae in a permit appeal. Eliminating amicus briefs would reduce the length of permit appeals by fifteen days.
  8. Term Limits for EAB Judges. EPA proposes to set twelve-year terms for EAB judges, who currently have no term limits on their appointments, but the agency is also taking comment on whether eight-year terms or any other term length would be more appropriate. The twelve-year terms would be staggered and implemented on a three-year rolling basis.

These much-needed reforms to the EAB represent years in the making. Providing EPA with meaningful, substantive comments will help the agency establish a final rule that is durable, practical, and effective. Given that stakeholders have only thirty days to comment, companies and their trade associations should begin work on their comments immediately.

If you have any questions or need assistance with drafting comments in response to EPA’s proposal, please contact Erik Baptist in Wiley Rein’s Environment & Product Regulation practice.

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