On November 6, 2019, the U.S. Environmental Protection Agency’s (EPA’s) Office of General Counsel issued a pre-publication proposal, “Modernizing the Administrative Exhaustion Requirement for Permitting Decisions and Streamlining Procedures for Permit Appeals.” In the proposal, EPA will seek comment on several changes to the permit appeals process before the EAB in an effort to speed up final decisions and resolutions.

The changes stem from a 2017 Memorandum, directing agencies to streamline the permitting process. The EPA has implemented several measures to reduce the permitting timeframe pursuant to this directive. This most recent one proposes to modernize the EAB appeals process.

Scope of the Proposal

The proposal applies to EPA-issued permits under the National Pollutants Discharge Elimination System program, Underground Injection Control program, Resources Conservation and Recovery Act, and the Clean Air Act. As such, permits issued by a state authorized to administer a permitting program are not affected, neither is EAB’s enforcement authority.

There are several key proposed changes.

New ADR Exhaustion Requirement for Judicial Review

The EPA proposes to replace the current EAB process with streamlined Alternative Dispute Resolution (ADR) designed to encourage early issue resolution and allow unresolved permit disputes to more quickly be heard in federal court. Instead of opting-in to ADR as is the option now, parties would need to participate in a time-limited initial ADR process. The initial ADR process will require the assigned EAB judge to convene the parties and provide position assessments within 30 days of responses being filed. Within 30 days after the parties are convened, the parties must unanimously agree on the next steps and either continue with ADR or go before the EAB. If the parties do not agree on the next step, the appeal would be denied, the permit deemed final, and a party would then be able to file for judicial review of the decision.

In addition, the initial, required ADR process would now be the set precondition to judicial review. As such, parties who did not participate in the initial ADR process would not have exhausted their administrative remedies in order to seek judicial review of a permit decision. Otherwise, parties would only be able seek judicial review if there is no unanimous decision on how to continue after the initial ADR process, or once a final decision is made.

No More Amici Curiae Briefs

The proposal would no longer allow for interested third parties to weigh in on appeals before the EAB by filing amici curiae briefs. Appeals before the EAB will only involve parties to the permit and the agency in order to streamline the appeal process. The proposal states this would save 15 days with regards to the briefing schedule before the EAB, and that all members of the public are otherwise welcome to continue to submit public comments on draft permits in order to weigh in on the relevant issues.

No More Sua Sponte Permit Reviews

The proposal would remove the EAB’s authority to review regional permit decisions on its own initiative.

Speed Up the EAB Process

To ameliorate what the EPA has identified as a potentially inefficient process, the proposal would institute time requirements for parties and the EAB. First, parties would be limited to request only one 30-day extension on briefing. The EAB would still have discretion to allow additional extensions for good cause, but the EPA wants to avoid the briefing process from delaying final resolution.

Second, the EAB would have to issue a final decision within 60 days of either oral argument or the filing of the last brief, whichever is later. And finally, the EAB would potentially be required to limit the length of the final decision, though the EPA has not decided whether this is by certain word or page limits.

Clarification of EAB’s Scope and Standard of Review

The standard of review on appeal—whether there is a finding of fact or conclusion of law that is clearly erroneous—will not change. 40 C.F.R. § 124.19(a)(4)(i)(A). But proposal would clarify that the scope of review does not include the Agency’s exercise of discretion “or an important policy consideration,” as currently provided for in 40 C.F.R. section 124.19(a)(4)(i)(B). As such, this subsection would be stricken from the regulations.

Dispositive Legal Interpretations Allowed

The proposal would create the authority for the Administrator to issue a dispositive legal interpretation, through the General Counsel, in the matter on appeal, which would be binding on the EAB. The Administrator currently has the authority to review or change any EAB decision, but this would, as stated by the EPA, allow the Administrator to retain authority as to certain legal interpretations possibly at issue during the appeal.

Precedential EAB Decisions Identified

Only published EAB decisions would be precedential. The EPA Administrator would have the authority to determine which decisions are published and therefore precedential.

EAB Judges Subject to Terms

Finally, the EAB judges would be subject to a twelve-year term. This proposed change would not otherwise alter an EAB judge’s ability to leave or be reassigned to another position during the term, and permits extensions of appointments for additional terms.

Assessment of the Proposals

The proposal appears to focus on promoting ADR for resolution of permit disputes, or else expediting administrative exhaustion in order to allow parties to seek judicial review. It is unclear how much the proposal would impact the independent authority of the EAB to adjudicate appeals, but the proposal does try to limit the scope of the EAB. Some stakeholders have raised concerns that the proposal would also limit interested parties’ rights to contest permit decisions, or would allow appealing parties to seek judicial review too quickly.

Next Steps

Within 30 days of the proposal’s publication, the public may comment on any of these proposed changes. The EPA indicates that it will accept comments on all aspects of the proposal. In the pre-publication version, the EPA also specifically asks for comments on whether the parties’ agreement to opt for continuing ADR would apply to all issues raised in the notice of appeal, or if the agreement should be issue-specific. Anyone that could potentially appear before the EAB on a permit issue should consider how these proposed changes may affect resolution of a dispute and should be prepared to participate in the public comment period.