Federal Register / Vol. 78, No. 17 / Friday, January 25, 2013 / Rules and Regulations 5281 

results, under § 556.6(b)(2) of this 

chapter, to the Commission for 

inclusion in the Indian Gaming 

Individuals Record System. 

(e) A tribe shall retain the following 

for inspection by the Chair or his or her 

designee for no less than three years 

from the date of termination of 

employment: 

(1) Applications for licensing; 

(2) Investigative reports; and 

(3) Eligibility determinations. 

§ 558.4 Notice of information impacting 

eligibility and licensee’s right to a hearing. 

(a) If, after the issuance of a gaming 

license, the Commission receives 

reliable information indicating that a 

key employee or a primary management 

official is not eligible for employment 

under § 556.5 of this chapter, the 

Commission shall notify the issuing 

tribe of the information. 

(b) Upon receipt of such notification 

under paragraph (a) of this section, a 

tribe shall immediately suspend the 

license and shall provide the licensee 

with written notice of suspension and 

proposed revocation. 

(c) A tribe shall notify the licensee of 

a time and a place for a hearing on the 

proposed revocation of a license. 

(d) A right to a hearing under this part 

shall vest only upon receipt of a license 

granted under an ordinance approved 

by the Chair. 

(e) After a revocation hearing, a tribe 

shall decide to revoke or to reinstate a 

gaming license. A tribe shall notify the 

Commission of its decision within 45 

days of receiving notification from the 

Commission pursuant to paragraph (a) 

of this section. 

§ 558.5 Submission of notices. 

(a) All notices under this part shall be 

provided to the Commission through the 

appropriate Regional office. 

(b) Should a tribe wish to submit 

notices electronically, it should contact 

the appropriate Regional office for 

guidance on acceptable document 

formats and means of transmission. 

§ 558.6 Compliance with this part. 

All tribal gaming ordinances and 

ordinance amendments that have been 

approved by the Chair prior to February 

25, 2013 and that reference this part do 

not need to be amended to comply with 

this section. All future ordinance 

submissions, however, must comply. 

Dated: January 17, 2013, Washington, DC. 

Tracie L. Stevens, 

Chairwoman. 

Daniel J. Little, 

Associate Commissioner. 

[FR Doc. 2013–01315 Filed 1–24–13; 8:45 am] 

BILLING CODE 7565–02–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

[FRL–9723–8] 

40 CFR Parts 124 and 270 

Revisions to Procedural Rules To 

Clarify Practices and Procedures 

Applicable in Permit Appeals Pending 

Before the Environmental Appeals 

Board 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: This rule revises existing 

procedures for appeals from RCRA, UIC, 

NPDES, PSD or other final permit 

decisions that are filed with the 

Environmental Appeals Board in an 

effort to simplify and make more 

efficient the review process, particularly 

in appeals from permits issued under 

new source review provisions. Most 

significantly, the changes reconcile 

current provisions of the regulation 

governing appeals, which over time has 

proven to be somewhat confusing and 

redundant. The changes will bring the 

regulation more fully in line with 

current practice. Under the current rule, 

a Petitioner is required to file a 

substantive petition for review 

demonstrating that review is warranted. 

The Environmental Appeals Board 

considers that substantive petition, as 

well as any briefs filed in response to 

the petition, to determine whether to 

grant review. If review is granted, the 

current rule contemplates that a second 

substantive round of briefing is begun 

and another substantive review process 

occurs. In practice, however, the Board 

has determined that a second round of 

briefing generally is unnecessary 

because in nearly all cases, a decision 

on the merits can be made based on the 

substantive briefs already filed. The 

changes to the rule clarify to 

practitioners that substantive briefing 

must be submitted at the outset of the 

appeal and that one substantive review 

will occur. Additional briefing may be 

ordered when the Board determines it 

warranted. A number of additional 

provisions governing procedure are also 

added to the rule to reflect existing 

practices that are currently guided by 

standing orders of the Environmental 

Appeals Board and its Practice Manual. 

Revising the regulation to reflect current 

practice will provide clarity to 

practitioners before the Board, which 

will in turn make the appeals process 

more efficient by avoiding unnecessary 

filings and Board orders. 

DATES: This final rule will become 

effective on March 26, 2013. 

FOR FURTHER INFORMATION CONTACT: 

Eurika Durr, Clerk of the Board, U.S. 

Environmental Protection Agency, 

Environmental Appeals Board (EAB), 

1200 Pennsylvania Avenue NW., Mail 

Code 1103M, Washington, DC 20460– 

0001; telephone (202) 233–0122; fax 

number: (202) 233–0121; email address: 

durr.eurika@epa.gov. For more 

information regarding this rule, please 

visit http://www.epa.gov/eab. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

A. Does this action apply to me? 

This action is directed to the public 

in general, and has particular 

applicability to anyone who seeks 

review of a RCRA, UIC, NPDES, PSD or 

other final permit decision under 40 

CFR § 124.19 by the Environmental 

Appeals Board. Because this action may 

apply to everyone, the Agency has not 

attempted to describe all the specific 

entities that may be affected by this 

action. If you have any questions 

regarding the applicability of this action 

to the particular entity, consult the 

person listed under FOR FURTHER

INFORMATION CONTACT. 

B. How can I get additional 

information? 

Electronic copies of this document 

and certain other related documents are 

available at http://www.epa.gov/eab/. 

C. When will this rule become effective? 

This rule will become effective sixty 

days after the date of publication in the 

Federal Register. The sixty days 

between the date of publication and the 

effective date will allow the Board to 

notify current practitioners of the 

changes, modify its procedural guidance 

documents and take other measures to 

implement the rule as appropriate. 

II. Background 

A. What action is the agency taking? 

The existing rule governing appeals of 

RCRA, UIC, NPDES, PSD and other 

applicable final permit decisions is 

potentially redundant and cumbersome, 

lacks detailed procedures that would 

help simplify the permit review process, 

and is not fully reflective of the 

Environmental Appeals Board’s current 

practice. EPA is amending the language 

of the rule to more fully reflect current 

practice, which is bound by the current 

language but also guided in large part by 

Board precedent, Board standing orders, 

and the Board’s Practice Manual. 

The amendments to the rule clarify 

review procedures for practitioners 

before the Environmental Appeals 

Board, which will simplify and make 


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more efficient the review process in all 

permit appeals filed with the Board 

under this section, particularly in PSD 

and other new source appeals. As 

explained in more detail below, the 

changes: 

› Clarify that substantive briefing 

occurs at the outset of the appeal 

followed by one substantive review 

process and that a second round of 

substantive briefs will not occur as a 

matter of course, allowing the regulation 

to more fully reflect current Board 

practice; and 

› Add provisions to the rule 

governing procedures that are currently 

guided by standing orders of the 

Environmental Appeals Board and the 

Board’s Practice Manual. 

1. Full Briefing During Initial Review by 

the Environmental Appeals Board 

In most permit appeals, the 

Environmental Appeals Board bases its 

final decision on the petition(s) filed, 

the response(s) to the petition, and on 

the administrative record of the permit 

decision. Although the current rule 

provides for a second substantive 

briefing and review period following a 

decision to ‘‘grant review,’’ a large 

majority of the time the Board 

concludes that additional briefing is 

unnecessary to determine whether to 

affirm a permit decision or remand a 

permit decision to the permitting agency 

for further consideration. Paragraph (a) 

of the current rule requires Petitioners 

to demonstrate that review is warranted 

in the petition for review. Board 

precedent, affirmed by the Federal 

Courts of Appeal, interprets this 

provision in the rule to require 

Petitioners to demonstrate substantively 

why the permit decision warrants 

review. See, e.g., In re Teck Alaska, Inc., 

NPDES Appeal No. 10–04, at 7–11 (EAB 

Nov. 18, 2010) (Order Denying Review), 

review denied, Native Vill. of Kivalina 

IRA Council v. EPA, 687 F.3d 1216, 

1221 (9th Cir. 2012); In re City of 

Pittsfield, NPDES Appeal No. 08–19, at 

7, 11–12 (EAB Mar. 4, 2009) (Order 

Denying Review), review denied, 614 

F.3d 7, 11–13 (1st Cir. 2010); In re 

Wastewater Treatment Facility of Union 

Twp., NPDES Appeal Nos. 00–26 & 00– 

28, at 9–13 (EAB Jan. 23, 2001) (Order 

Denying Petitions for Review), review 

denied, Mich. Dep’t Envtl. Quality v. 

EPA, 318 F.3d 705, 708 (6th Cir. 2003); 

see also In re Peabody W. Coal Co., 12 

E.A.D. 22, 33, 51–53 (EAB 2005). 

In cases where the Board finds no 

error based on its review of the petition, 

the responses to the petition, and the 

administrative record, the Board will 

typically deny review. In cases where 

the Board finds error based on its initial 

review, the Board often determines that 

additional briefing on appeal would not 

shed further light on the issues and, 

therefore, determines that a direct 

remand without additional submissions 

would be more efficient and 

appropriate. See In re DC Water and 

Sewer Auth., 13 E.A.D. 714, n.82 (EAB 

2008) (remanding after initial review 

and explaining that ‘‘[a]lthough 40 CFR 

§ 124.19(c) contemplates that additional 

briefing typically will be submitted 

upon a grant of review, a direct remand 

without additional submissions is 

appropriate where, as here, it does not 

appear as though further briefs on 

appeal would shed light on the issues’’ 

to be addressed on remand); see also, 

e.g., In re Amerada Hess, 12 E.A.D. 1, 

21 n.39 (EAB 2005); In re Rohm and 

Haas Co., 9 E.A.D. 499, 514 n.24 (EAB 

2000); In re Knauf Fiber Glass, GmbH, 

8 E.A.D. 121, 176 n.73 (EAB 1999); In 

re Beckman Prod. Servs., 8 E.A.D. 302, 

314 n.16 (EAB 1999); In re Ash Grove 

Cement Co., 7 E.A.D. 387, 433 n. 40 

(EAB 1997); In re Chem. Waste Mgmt. of 

Ind., 6 E.A.D. 144, 173 n.28 (EAB 1995); 

In re Reinkiewicz, 4 E.A.D. 61, 67 n.5 

(EAB 1992). The utilization of a direct 

remand, without further briefing, has 

been a practice of the Agency since 

before the Board was created. See In re 

Chem. Waste Mgmt, Inc., 2 E.A.D. 575, 

577 (Adm’r 1988). 

The Environmental Appeals Board’s 

long-standing practice of issuing a direct 

remand in matters based on errors found 

in its initial review of a petition stands 

in contrast to the provision in 40 CFR 

124.19(c) that provides for a second 

round of briefing following a grant of 

review. Notwithstanding the 

requirement to provide a substantive 

demonstration that review is warranted 

in the petition for review, the existing 

regulation contemplates that following 

the Board’s grant of review, public 

notice of the grant of review must be 

provided and a briefing schedule 

established for the appeal, including an 

invitation to any interested person to 

file an amicus brief. 

Today’s revision of § 124.19 simplifies 

the review process and promotes 

judicial economy by clarifying that one 

complete round of briefing will occur at 

the outset of the appeal and by 

removing the language that refers to a 

second round of briefing once review 

has been granted. As always, any person 

who filed comments on the draft permit 

or participated in a public hearing on 

the draft permit may file a petition for 

review. With today’s revision of the 

rule, any interested person may file an 

amicus brief in any permit appeal 

pending before the Board under part 124 

during the initial briefing period within 

the timeframe and in the manner 

prescribed by the rule. Notice of all 

docketed appeals pending before the 

Environmental Appeals Board is 

available to the public on the Board’s 

Web site: www.epa.gov/eab. Nothing in 

this revision to the rule prevents the 

Board from ordering additional briefing 

after the first round in any matter where 

the Board determines that additional 

briefing may assist the Board in its 

deliberations. 

Several provisions in parts 124 and 

270 reference the granting of review by 

the Environmental Appeals Board and 

use the second round of briefing and 

permit review as a trigger or deadline 

for other agency action. As such, these 

provisions are being revised to reflect 

the clarification that all substantive 

briefing occurs at the outset of the 

appeal. Specifically, before today, 

§ 124.19 authorized the Regional 

Administrator to unilaterally withdraw 

a permit and prepare a new draft permit 

at any time prior to the Board’s grant of 

review under what was § 124.19(c). The 

provision served to prevent unilateral 

withdrawal of a permit by the Region 

after the Environmental Appeals Board 

had begun substantive consideration of 

an appeal. This rule revises § 124.19 to 

allow the Regional Administrator to 

unilaterally withdraw the permit at any 

time prior to 30 days after the Regional 

Administrator files its response to the 

petition under paragraph (b) of this 

section. This revision will continue to 

ensure that unilateral withdrawal of a 

permit will occur before the Board has 

devoted significant resources to the 

substantive consideration of an appeal. 

Nothing in this regulation prevents the 

Region from seeking to withdraw the 

permit by motion at any time. 

Additionally § 270.42(b)(6)(iii) 

provides for the automatic authorization 

of certain hazardous waste permit 

modifications where the Director fails to 

make a determination on a modification 

request within the allotted time. That 

automatic authorization is appealable to 

the Environmental Appeals Board under 

§ 124.19, as provided in § 270.42(f)(3). 

The provision authorizing the appeal 

also provides that ‘‘the permittee may 

continue to conduct the activities 

pursuant to the automatic authorization 

until the appeal has been granted 

pursuant to § 124.19(c), notwithstanding 

the provisions of § 124.15(b).’’ Because 

today’s rule modifies the appeal 

procedures to eliminate a second round 

of substantive review after the grant of 

review, § 270.42((f)(3) must be modified 

as well. Accordingly, the provision is 

modified to allow the permittee to 

conduct activities pursuant to automatic 

authorization until a final 


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determination, if any, is made by the 

Environmental Appeals Board to grant 

review and remand the permit. The 

revision is consistent with the original 

provision in that it allows the permittee 

to continue to conduct activities 

described in the modification request 

pursuant to automatic authorization 

until the Board determines review is 

warranted. 

Section 270.155(a) authorizes appeals 

to the Environmental Appeals Board 

from decisions to approve or deny a 

remedial action plan (RAP) permit 

under RCRA. That provision historically 

has required that specific notice be 

given to the public of the Environmental 

Appeals Board’s grant of review of any 

RAP decision, and an opportunity 

provided for any interested person to 

participate in the second (substantive 

review) stage of the appeal. Because 

today’s revision of § 124.19 clarifies that 

the substantive review of a petition is 

based on one complete round of briefing 

at the outset of the appeal, the rule also 

clarifies that all interested persons in 

any appeal under § 124.19, including 

those appeals authorized under 

§ 270.155, may file an amicus brief 

during the initial briefing period within 

the timeframe and in the manner 

prescribed by the rule. Notice of a final 

decision to approve or deny a RAP is 

provided under § 270.150, and such 

notice includes the procedures for 

appealing the decision under § 270.155. 

Additionally, as provided above, notice 

of all docketed appeals pending before 

the Environmental Appeals Board is 

available to the public on the Board’s 

Web site: www.epa.gov/eab. Thus, the 

provision in § 270.155(a), which 

provides for specific notice of the 

second stage of the appeal process that 

is being eliminated, is no longer 

necessary and is also being deleted. 

2. Procedural Additions to the Rule 

Practitioners before the 

Environmental Appeals Board in permit 

appeals currently are guided by Board 

precedent, standing orders of the Board, 

and the Board’s Practice Manual. 

Current regulations do not provide the 

parameters for filing documents before 

the Board, such as where to file, how to 

file, when to file, as well as any content 

requirements or limits to what is filed. 

The revisions adopted today are 

intended to codify current procedural 

practices, clarify existing review 

procedures, and simplify the permit 

review process. Practitioners before the 

Board will benefit from the greater 

clarity and efficiency in these 

procedural rules, as will the Agency. 

Specific changes are summarized below. 

In matters where the permit applicant 

is not the petitioner in an appeal, the 

petitioner must notify the permit 

applicant when a petition is filed, and 

the permit applicant’s deadline for filing 

a response is specified in the regulation. 

This change eliminates the current 

practice that typically involves the 

permit applicant filing a motion to 

participate in the appeal, which the 

Board typically grants, followed by 

filing a substantive brief according to 

the Board’s briefing schedule. Allowing 

participation of the permit applicant by 

rule and specifying a response brief 

deadline will streamline and make more 

efficient the briefing process for permit 

applicants. 

When a petition is filed, the 

Environmental Appeals Board typically 

sends a letter to the permit issuer 

requesting a response to the petition and 

requiring the permit issuer to submit its 

response and a certified index to the 

administrative record by a date certain. 

This rule adds procedures that require 

a petitioner to serve notice of the 

petition on the permit issuer when the 

petition is filed. The rule also requires 

the permit issuer to submit a response 

to the petition, as well as a certified 

index of the administrative record and 

relevant portions of the record, by a date 

certain. This eliminates the need for the 

Board to notify the permit issuer and 

facilitates an earlier response deadline, 

making the process more efficient for 

the permit issuer and the Board. 

The changes to the rule also impose 

briefing procedures and deadlines for 

interested state or tribal authorities that 

are located where the permitted facility 

or site is located or proposed to be 

located (if that authority is not the 

permit issuer), as well as for any 

person(s) interested in filing an amicus 

brief. Again, the briefing deadlines and 

explicit authorization to file are 

intended to streamline and make more 

efficient the appeal process, by 

removing the need to request 

permission from the Board to 

participate, and eliminating the 

corresponding additional time needed 

to grant participation and to impose 

briefing schedules later in the process. 

Procedures for PSD and other new 

source review appeals are contained in 

the Environmental Appeals Board’s 

April 19, 2011, standing order. See 

Order Governing Petitions for Review of 

Clean Air Act New Source Review 

Permits (EAB Apr. 19, 2011), available 

at www.epa.gov/eab. These procedures 

were adopted ‘‘to facilitate [the] 

expeditious resolution of NSR appeals, 

while simultaneously giving fair 

consideration to the issues raised in any 

given matter[.]’’ Id. at 2. In effect, the 

procedures simplify and make more 

efficient the review process in PSD and 

other new source appeals (including 

OCS appeals) by imposing certain 

presumptions, tighter deadlines, 

briefing limitations, and other measures. 

Today’s rule incorporates many of these 

procedures into the regulation. 

To date, practitioners before the 

Environmental Appeals Board have had 

little guidance on the form and content 

of submissions to the Board. The revised 

rule adds provisions imposing 

procedural rules governing the content 

and form of filings for briefs and 

motions practice. This will improve the 

quality and consistency of filings before 

the Board, which will also contribute to 

greater efficiency. 

The revised rule clarifies existing 

filing requirements and procedures that 

are currently found in the Board’s 

standing orders and in the Board’s 

Practice Manual, all of which may be 

found on the Board’s Web site. These 

include procedures for both filing paper 

documents and for electronic filing. The 

procedures also address the service of 

notice on participants of documents 

filed, including the availability of 

electronic service. This portion of the 

rule will also provide greater clarity and 

efficiency to the appeals process. 

The revised rule also adds a provision 

clarifying the Board’s inherent authority 

to manage its docket in the most 

meaningful and efficient manner 

possible, including the ability to impose 

procedural sanctions for failure to 

comply with Board orders and rules. 

The language clarifying this authority is 

consistent with the express language 

found in regulations pertaining to 

enforcement appeals before the 

Environmental Appeals Board. See 22 

CFR § 22.4(a)(2). The language is also 

consistent with Board precedent. See In 

re Peabody Western Coal Co., CAA 

Appeal No. 10–01 (EAB Aug. 13, 2010) 

(Order Granting Motion for Voluntary 

Remand) (articulating Board’s inherent 

authority to rule on motions and fill 

other ‘‘gaps’’ in its procedural rules); see 

also, e.g., In re MGP Ingredients of 

Illinois, Inc., PSD Appeal No. 09–03 

(EAB Jan. 8, 2010) (Order Imposing 

Sanctions, Setting Final Deadline for 

Filing Response and Scheduling Status 

Conference) (imposing page-limit 

sanction against permit issuer and 

ordering appearance at a status 

conference in response to ‘‘systematic 

failure to timely assemble the 

administrative record, provide 

representation and defend a permit 

issued’’); In re Desert Rock Energy Co., 

LLC, PSD Appeal Nos. 08–03 to 08–06 

(EAB May 21, 2009) (Order Denying 

Motion to Participate) (initially denying 


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amici’s motion to participate filed two 

months after the deadline for 

submission without explanation or 

justification). Further support for the 

Board’s inherent authority to manage its 

docket may be found in general and 

well-established principles of 

administrative law. See Vermont 

Yankee Nuclear Power Corp. v. Natural 

Resources Defense Council, 435 U.S. 

519, 543–44 (1978) (‘‘Absent 

constitutional constraints or extremely 

compelling circumstances the 

administrative agencies should be free 

to fashion their own rules of procedure 

to pursue methods of inquiry capable of 

permitting them to discharge their 

multitudinous duties.’’); see also 

American Farm Lines v. Black Ball 

Freight Service, 397 U.S. 532, 539 (1970) 

(explaining that it is ‘‘always within the 

discretion of * * * an administrative 

agency to relax or modify its procedural 

rules adopted for the orderly transaction 

of business before it when in a given 

case the ends of justice require it.’’). The 

Board’s inherent authority to manage its 

docket includes the authority to relax or 

suspend, for good cause, the procedural 

requirements prescribed by these rules 

or Board order. See In re Circle T 

Feedlot, Inc., NPDES Appeals Nos. 09– 

02 & 09–03, slip op at 11 (EAB Jun. 7, 

2010). 

Finally, current regulations allow a 

petitioner to challenge ‘‘any condition 

of a permit decision.’’ 40 CFR 124.19(a). 

The Environmental Appeals Board 

historically and consistently has 

construed ‘‘any condition of the permit 

decision’’ to include not only specific 

permit conditions, but also the permit 

decision in its entirety, whether based 

on alleged substantive or procedural 

defects. See, e.g., In re Circle T Feedlot, 

Inc., NPDES Appeal Nos. 09–02 & 09– 

03, slip op. at 5 n.l (EAB June 7, 2010), 

14 E.A.D. ___ (citations omitted) 

(challenging the permit in its entirety 

based on the permit issuer’s alleged lack 

of authority to issue the permit); In re 

Russell City Energy Ctr., PSD Appeal 

No. 08–01, slip op. at 21–25 (EAB July 

29, 2008), 14 E.A.D. ___ (considering 

adequacy of public notice); In re Weber, 

#4–8, 11 E.A.D. 241, 245 (EAB 2003) 

(considering timeliness of response to 

comments); In re Indeck-Elwood, LLC, 

13 E.A.D. 126, 189 (EAB 2006) 

(considering, among other things, the 

alleged failure to include an emission 

limit for fluoride). The Board’s 

extension of review to include 

challenges broader than ones specific to 

a permit condition is consistent with the 

language in 40 CFR 124.15(a), which 

defines a permit decision as a ‘‘final 

decision to issue, deny, modify, revoke 

and reissue, or terminate a permit.’’ A 

petitioner challenging the decision to 

deny a permit, for example, could not 

identify specific permit ‘‘conditions’’ 

being challenged; rather, such petitioner 

would challenge the overall decision to 

deny the permit. Thus, the Board has 

reviewed permit decisions where the 

petitioner did not challenge a specific 

permit condition, but instead 

challenged the permit as a whole. 

On the other hand, the Environmental 

Appeals Board has also denied review 

of permit decisions where the petition 

for review failed to identify any specific 

permit condition being challenged. 

Such denial of review has consistently 

been based on a petitioner’s failure to 

identify—with any specificity—any 

error of fact or law warranting review. 

See, e.g., In re LCP Chemicals—New 

York, 4 EAD 661, 664–65 (EAB 1993) 

(denying review of certain issues for 

which petitioner had failed to identify 

specific permit conditions and stating 

that, ‘‘[a]bsent any references to the 

specific permit conditions at issue, and 

a discussion as to why the Region’s 

decision to impose those conditions 

warrants review, this Board has no basis 

for granting review.’’) (emphasis added); 

In re Envotech, L.P., 6 EAD 260, 269 

(EAB 1996) (dismissing a petition that 

raised the issue of strict liability but did 

not explain what permit condition was 

implicated by the doctrine of strict 

liability or how the doctrine of strict 

liability established that the region erred 

in granting the permit); see also, e.g., In 

re Peabody W. Coal Co., NPDES Appeal 

Nos. 10–15 & 10–16, slip op. at 32 n.36 

(EAB Aug. 31, 2011) (dismissing several 

issues as ‘‘vague’’ and 

‘‘unsubstantiated’’ where it was unclear 

how the issues raised related to any 

conditions of the permit that petitioner 

was attempting to challenge (citing In re 

City of Attleboro, NPDES Appeal No. 

08–08, slip op. at 61 (EAB Dec. 15, 

2009) (explaining that, because 

petitioner bears the burden of 

demonstrating that review is warranted, 

the Board ‘‘will not entertain vague or 

unsubstantiated claims’’)); In re City of 

Moscow, 10 E.A.D. 135, 172 (EAB 2001) 

(denying review where petitioner raised 

vague and unsubstantiated concerns and 

failed to point to any clearly erroneous 

findings of fact or conclusions of law in 

the Region’s permitting decision or to 

identify any specific permit conditions 

that gave rise to those concerns)). 

Today’s revision to the rule therefore 

clarifies that, consistent with wellestablished precedent, petitioners must 

identify the contested permit condition 

or other specific challenge to the permit 

decision and clearly set forth, with legal 

and factual support, petitioner’s 

contentions for why the permit decision 

should be reviewed. This revised 

language is intended to capture permit 

challenges that are within the 

Environmental Appeals Board’s existing 

scope of review, but that are not 

necessarily tied to a specific permit 

condition; the revised language is not 

intended to expand the Board’s existing 

scope of review. As always, such 

challenges must demonstrate that the 

permit decision is based on a finding of 

fact or conclusion of law that is clearly 

erroneous, or an exercise of discretion 

or an important policy consideration 

that the Environmental Appeals Board 

should, in its discretion, review. 

Additionally, the rule incorporates the 

precedential requirement that petitions 

not only demonstrate that any issue 

raised in the petition was raised 

previously during the public comment 

period (to the extent required), but also 

that the petition addresses any response 

by the permit issuer and explain why 

that response was clearly erroneous or 

otherwise warrants review. See, e.g., In 

re Prairie State Generating Co., LLC, 13 

E.A.D. 1, 109 (EAB 2006); see also, e.g. 

In re Pittsfield, NPDES Appeal No. 08– 

19, slip op. at 6–9, 11 (EAB Mar. 4, 

2009), aff’d, 614 F.3d 7 (1st Cir. 2010). 

In addition, EPA is clarifying a 

provision in section 124.19 addressing 

when final agency action occurs 

following the disposition of an appeal 

by the Environmental Appeals Board. 

Sections 124.15(a) and 124.19(f) of 

EPA’s existing regulations both use the 

term ‘‘final permit decision.’’ Some 

parties have interpreted the use of the 

term ‘‘final permit decision’’ in the first 

sentence of section 124.19(f)(1) to 

describe a ‘‘final permit decision’’ 

previously issued under section 124.15 

rather than an additional final permit 

decision issued by the Regional 

Administrator after any administrative 

review proceedings under section 

124.19 are exhausted. EPA generally has 

applied the latter reading based on the 

second sentence of section 124.19(f)(1), 

but some EPA offices and members of 

the public have occasionally 

misunderstood the meaning of this 

provision. In some instances, this has 

led to inconsistent actions within EPA 

and disputes over the reading of section 

124.19(f) between EPA and parties 

seeking judicial review of permits 

issued under Part 124. Thus, in order to 

avoid further disputes and ensure 

consistency across EPA offices that 

issue permits under Part 124, we are 

revising the relevant language in section 

124.19 to make more clear that final 

agency action does not occur under 

124.19 until the Regional Administrator 


srobinson on DSK4SPTVN1PROD with 
Federal Register / Vol. 78, No. 17 / Friday, January 25, 2013 / Rules and Regulations 5285 

issues a subsequent ‘‘final permit 

decision’’ under section 124.19 after 

administrative review proceedings are 

exhausted. This revised text now 

appears in section 124.19(l)(2). 

B. What is the Agency’s authority for 

taking this action? 

EPA is issuing this document under 

its general rulemaking authority, 

Reorganization Plan No. 3 of 1970 (5 

U.S.C. app.). 

Section 553 of the Administrative 

Procedure Act (APA), 5 U.S.C. 

§ 553(b)(3)(A), provides that ‘‘rules of 

agency organization, procedure, or 

practice’’ are exempt from notice and 

comment requirements. The action the 

Agency is taking today involves 

revisions to the Environmental Appeals 

Board’s procedural rules to clarify 

existing practices and procedures that 

are applicable in permit appeals filed 

with the Environmental Appeals Board. 

These revisions fall under the 

exemption provided in APA 

§ 553(b)(3)(A). Accordingly, EPA is not 

taking comment on this action. 

III. Statutory and Executive Order 

Reviews 

This action involves revisions to the 

Environmental Appeals Board’s 

procedural rules to clarify existing 

practices and procedures that are 

applicable in permit appeals filed with 

the Environmental Appeals Board. This 

type of action is exempt from review 

under Executive Orders 12866 (58 FR 

51735, October 4, 1993) and 13563 (76 

FR 3821, January 21, 2011). Because this 

action is not subject to notice and 

comment requirements under the 

Administrative Procedures Act or any 

other statute, it is not subject to the 

Regulatory Flexibility Act (5 U.S.C. 601 

et. seq.) or sections 202 and 205 of the 

Unfunded Mandates Reform Act of 1999 

(UMRA) (Pub. L. 104–4). In addition, 

this action does not significantly or 

uniquely affect small governments. This 

action does not create new binding legal 

requirements that substantially and 

directly affect Tribes under Executive 

Order 13175 (63 FR 67249, November 9, 

2000). This action does not have 

significant Federalism implications 

under Executive Order 13132 (64 FR 

43255, August 10, 1999). This rule also 

is not subject to Executive Order 13045, 

‘‘Protection of Children from 

Environmental Health Risks and Safety 

Risks,’’ (62 FR 19885, April 23, 1997), 

because it is not economically 

significant. This action is not subject to 

Executive Order 13211, ‘‘Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use’’ (66 FR 28355, May 

22, 2001), because it is not a significant 

regulatory action under Executive Order 

12866. This action does not involve 

technical standards; thus the 

requirements of § 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) do not 

apply. This action does not impose an 

information collection burden under the 

provisions of the Paperwork Reduction 

Act of 1995 (44 U.S.C. 3501 et seq.). The 

Congressional Review Act, 5 U.S.C 801 

et seq., as added by the Small Business 

Regulatory Enforcement Fairness Act of 

1996, generally provides that before a 

rule may take effect, the agency 

promulgating the rule must submit a 

rule report, which includes a copy of 

the rule, to each House of the Congress 

and to the Comptroller General of the 

United States. Section 804 exempts from 

section 801 the following types of rules 

(1) rules of particular applicability; (2) 

rules relating to agency management or 

personnel; and (3) rules of agency 

organization, procedure, or practice that 

do not substantially affect the rights or 

obligations of non-agency parties. 5 

U.S.C. 804(3). EPA is not required to 

submit a rule report regarding today’s 

action under section 801 because this is 

a rule of agency organization, 

procedure, or practice that does not 

substantially affect the rights or 

obligations of non-agency parties. 

List of Subjects 

40 CFR Part 124 

Administrative Practice and 

Procedures. 

40 CFR Part 270 

Environmental Protection, Hazardous 

Waste. 

Dated: January 14, 2013. 

Lisa P. Jackson, 

Administrator. 

For the reasons stated in the 

preamble, the Environmental Protection 

Agency amends title 40 parts 124 and 

270 of the Code of Federal Regulations 

as follows: 

PART 124—PROCEDURES FOR 

DECISIONMAKING 

■ 1. The authority citation for part 124 

continues to read as follows: 

Authority: Resource Conservation and 

Recovery Act, 42 U.S.C. 6901 et seq.; Safe 

Drinking Water Act, 42 U.S.C. 300f et seq.; 

Clean Water Act, 33 U.S.C. 1251 et seq.; 

Clean Air Act, 42 U.S.C. 7401 et seq. 

■ 2. Section 124.10 is amended by 

removing paragraph (a)(1)(iv) and 

redesignating paragraphs (a)(1)(v) 

through (a)(1)(vi) as paragraphs (a)(1)(iv) 

through paragraphs (a)(1)(v), 

respectively. 

■ 3. Paragraph (b)(1) of § 124.16 is 

revised to read as follows: 

§ 124.16 Stays of contested permit 

conditions. 

* * * * * 

(b) Stays based on cross effects. (1) A 

stay may be granted based on the 

grounds that an appeal to the 

Administrator under § 124.19 of one 

permit may result in changes to another 

EPA-issued permit only when each of 

the permits involved has been appealed 

to the Administrator. 

* * * * * 

■ 4. Section 124.19 is revised to read as 

follows: 

§ 124.19 Appeal of RCRA, UIC, NPDES and 

PSD Permits. 

(a) Petitioning for review of a permit 

decision. (1) Initiating an appeal. 

Appeal from a RCRA, UIC, NPDES, or 

PSD final permit decision issued under 

§ 124.15 of this part, or a decision to 

deny a permit for the active life of a 

RCRA hazardous waste management 

facility or unit under § 270.29 of this 

chapter, is commenced by filing a 

petition for review with the Clerk of the 

Environmental Appeals Board within 

the time prescribed in paragraph (a)(3) 

of this section. 

(2) Who may file? Any person who 

filed comments on the draft permit or 

participated in a public hearing on the 

draft permit may file a petition for 

review as provided in this section. 

Additionally, any person who failed to 

file comments or failed to participate in 

the public hearing on the draft permit 

may petition for administrative review 

of any permit conditions set forth in the 

final permit decision, but only to the 

extent that those final permit conditions 

reflect changes from the proposed draft 

permit. 

(3) Filing deadline. A petition for 

review must be filed with the Clerk of 

the Environmental Appeals Board 

within 30 days after the Regional 

Administrator serves notice of the 

issuance of a RCRA, UIC, NPDES, or 

PSD final permit decision under 

§ 124.15 or a decision to deny a permit 

for the active life of a RCRA hazardous 

waste management facility or unit under 

§ 270.29 of this chapter. A petition is 

filed when it is received by the Clerk of 

the Environmental Appeals Board at the 

address specified for the appropriate 

method of delivery as provided in 

paragraph (i)(2) of this section. 

(4) Petition contents. (i) In addition to 

meeting the requirements in paragraph 

(d), a petition for review must identify 

the contested permit condition or other 


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specific challenge to the permit decision 

and clearly set forth, with legal and 

factual support, petitioner’s contentions 

for why the permit decision should be 

reviewed. The petition must 

demonstrate that each challenge to the 

permit decision is based on: 

(A) A finding of fact or conclusion of 

law that is clearly erroneous, or 

(B) An exercise of discretion or an 

important policy consideration that the 

Environmental Appeals Board should, 

in its discretion, review. 

(ii) Petitioners must demonstrate, by 

providing specific citation to the 

administrative record, including the 

document name and page number, that 

each issue being raised in the petition 

was raised during the public comment 

period (including any public hearing) to 

the extent required by § 124.13. For each 

issue raised that was not raised 

previously, the petition must explain 

why such issues were not required to be 

raised during the public comment 

period as provided in § 124.13. 

Additionally, if the petition raises an 

issue that the Regional Administrator 

addressed in the response to comments 

document issued pursuant to § 124.17, 

then petitioner must provide a citation 

to the relevant comment and response 

and explain why the Regional 

Administrator’s response to the 

comment was clearly erroneous or 

otherwise warrants review. 

(b) Response(s) to a petition for 

review. (1) In a PSD or other new source 

permit appeal, the Regional 

Administrator must file a response to 

the petition for review, a certified index 

of the administrative record, and the 

relevant portions of the administrative 

record within 21 days after the filing of 

the petition. 

(2) In all other permit appeals under 

this section, the Regional Administrator 

must file a response to the petition, a 

certified index of the administrative 

record, and the relevant portions of the 

administrative record within 30 days 

after the filing of a petition. 

(3) A permit applicant who did not 

file a petition but who wishes to 

participate in the appeal process must 

file a notice of appearance and a 

response to the petition. Such 

documents must be filed by the 

deadlines provided in paragraph (b)(1) 

or (2) of this section, as appropriate. 

(4) The State or Tribal authority 

where the permitted facility or site is or 

is proposed to be located (if that 

authority is not the permit issuer) must 

also file a notice of appearance and a 

response if it wishes to participate in 

the appeal. Such response must be filed 

by the deadlines provided in paragraph 

(b)(1) or (2) of this section, as 

appropriate. 

(c) Replies. (1) In PSD and other new 

source permit appeals, the 

Environmental Appeals Board will 

apply a presumption against the filing of 

a reply brief. By motion, petitioner may 

seek leave of the Environmental 

Appeals Board to file a reply to the 

response, which the Environmental 

Appeals Board, in its discretion, may 

grant. The motion must be filed 

simultaneously with the proposed reply 

within 10 days after service of the 

response. In its motion, petitioner must 

specify those arguments in the response 

to which petitioner seeks to reply and 

the reasons petitioner believes it is 

necessary to file a reply to those 

arguments. Petitioner may not raise new 

issues or arguments in the motion or in 

the reply. 

(2) In all other permit appeals under 

this section, petitioner may file a reply 

within 15 days after service of the 

response. Petitioner may not raise new 

issues or arguments in the reply. 

(d) Content and form of briefs. (1) 

Content requirements. All briefs filed 

under this section must contain, under 

appropriate headings: 

(i) A table of contents, with page 

references; 

(ii) A table of authorities with 

references to the pages of the brief 

where they are cited; 

(iii) A table of attachments, if required 

under paragraph (d)(2) of this section; 

and 

(iv) A statement of compliance with 

the word limitation. 

(2) Attachments. Parts of the record to 

which the parties wish to direct the 

Environmental Appeals Board’s 

attention may be appended to the brief 

submitted. If the brief includes 

attachments, a table must be included 

that provides the title of each appended 

document and assigns a label 

identifying where it may be found (e.g., 

Excerpts from the Response to 

Comments Document * * * Attachment 

1). 

(3) Length. Unless otherwise ordered 

by the Environmental Appeals Board, 

petitions and response briefs may not 

exceed 14,000 words, and all other 

briefs may not exceed 7,000 words. 

Filers may rely on the word-processing 

system used to determine the word 

count. In lieu of a word limitation, filers 

may comply with a 30-page limit for 

petitions and response briefs, or a 15- 

page limit for replies. Headings, 

footnotes, and quotations count toward 

the word limitation. The table of 

contents, table of authorities, table of 

attachments (if any), statement 

requesting oral argument (if any), 

statement of compliance with the word 

limitation, and any attachments do not 

count toward the word limitation. The 

Environmental Appeals Board may 

exclude any petition, response, or other 

brief that does not meet word 

limitations. Where a party can 

demonstrate a compelling and 

documented need to exceed such 

limitations, such party must seek 

advance leave of the Environmental 

Appeals Board to file a longer brief. 

Such requests are discouraged and will 

be granted only in unusual 

circumstances. 

(e) Participation by amicus curiae. 

Any interested person may file an 

amicus brief in any appeal pending 

before the Environmental Appeals 

Board under this section. The deadline 

for filing such brief is 15 days after the 

filing of the response brief, except that 

amicus briefs in PSD or other new 

source permit appeals must be filed 

within 21 days after the filing of the 

petition. Amicus briefs must comply 

with all procedural requirements of this 

section. 

(f) Motions. (1) In general. A request 

for an order or other relief must be made 

by written motion unless these rules 

prescribe another form. 

(2) Contents of a motion. A motion 

must state with particularity the 

grounds for the motion, the relief 

sought, and the legal argument 

necessary to support the motion. In 

advance of filing a motion, parties must 

attempt to ascertain whether the other 

party(ies) concur(s) or object(s) to the 

motion and must indicate in the motion 

the attempt made and the response 

obtained. 

(3) Response to motion. Any party 

may file a response to a motion. 

Responses must state with particularity 

the grounds for opposition and the legal 

argument necessary to support the 

motion. The response must be filed 

within 15 days after service of the 

motion unless the Environmental 

Appeals Board shortens or extends the 

time for response. 

(4) Reply. Any reply to a response 

filed under paragraph (f)(3) of this 

section must be filed within 10 days 

after service of the response. A reply 

must not introduce any new issues or 

arguments and may respond only to 

matters presented in the response. 

(5) Disposition of a motion for a 

procedural order. The Environmental 

Appeals Board may act on a motion for 

a procedural order at any time without 

awaiting a response. 

(g) Timing of motions for extension of 

time. Parties must file motions for 

extensions of time sufficiently in 

advance of the due date to allow other 


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parties to have a reasonable opportunity 

to respond to the request for more time 

and to provide the Environmental 

Appeals Board with a reasonable 

opportunity to issue an order. 

(h) Oral argument. The 

Environmental Appeals Board may hold 

oral argument on its own initiative or at 

its discretion in response to a request by 

one or more of the parties. To request 

oral argument, a party must include in 

its substantive brief a statement 

explaining why oral argument should be 

permitted. The Environmental Appeals 

Board will apply a presumption against 

oral argument in PSD or other new 

source permit appeals. The 

Environmental Appeals Board may, by 

order, establish additional procedures 

governing any oral argument before the 

Environmental Appeals Board. 

(i) Filing and service requirements. 

Documents filed under this section, 

including the petition for review, must 

be filed with the Clerk of the 

Environmental Appeals Board. A 

document is filed when it is received by 

the Clerk of the Environmental Appeals 

Board at the address specified for the 

appropriate method of delivery as 

provided in paragraph (i)(2) of this 

section. 

(1) Caption and other filing 

requirements. Every document filed 

with the Environmental Appeals Board 

must specifically identify in the caption 

the permit applicant, the permitted 

facility, and the permit number. All 

documents that are filed must be signed 

by the person filing the documents or 

the representative of the person filing 

the documents. Each filing must also 

indicate the signer’s name, address, and 

telephone number, as well as an email 

address, and facsimile number, if any. 

(2) Method of filing. Unless otherwise 

permitted under these rules, documents 

must be filed either electronically, by 

mail, or by hand delivery. In addition, 

a motion or a response to a motion may 

be submitted by facsimile if the 

submission contains no attachments. 

Upon filing a motion or response to a 

motion by facsimile, the sender must, 

within one business day, submit the 

original copy to the Clerk of the 

Environmental Appeals Board either 

electronically, by mail, or by handdelivery. 

(i) Electronic filing. Documents that 

are filed electronically must be 

submitted using the Environmental 

Appeals Board’s electronic filing 

system, subject to any appropriate 

conditions and limitations imposed by 

order of the Environmental Appeals 

Board. All documents filed 

electronically must include the full 

name of the person filing below the 

signature line. Compliance with 

Environmental Appeals Board 

electronic filing requirements 

constitutes compliance with applicable 

signature requirements. 

(ii) Filing by U.S. Mail. Documents 

that are sent by U.S. Postal Service 

(except by U.S. Express Mail) must be 

sent to the official mailing address of 

the Clerk of the Environmental Appeals 

Board at: U.S. Environmental Protection 

Agency, Environmental Appeals Board, 

1200 Pennsylvania Avenue NW., Mail 

Code 1103M, Washington, DC 20460– 

0001. The original and two copies of 

each document must be filed. The 

person filing the documents must 

include a cover letter to the Clerk of the 

Environmental Appeals Board clearly 

identifying the documents that are being 

submitted, the name of the party on 

whose behalf the documents are being 

submitted, as well as the name of the 

person filing the documents, his or her 

address, telephone number and, if 

available, fax number and email 

address. 

(iii) Filing by hand delivery. 

Documents delivered by hand or courier 

(including deliveries by U.S. Express 

Mail) must be delivered to the Clerk of 

the Environmental Appeals Board at: 

U.S. Environmental Protection Agency, 

Environmental Appeals Board, EPA East 

Building, 1201 Constitution Avenue 

NW., Room 3334, Washington, DC 

20004. The original and two copies of 

each document must be filed. The 

person filing the documents must 

include a cover letter to the Clerk of the 

Environmental Appeals Board clearly 

identifying the documents being 

submitted, the name of the party on 

whose behalf the documents are being 

submitted, as well as the name of the 

person filing the documents, his or her 

address, telephone number and, if 

available, fax number and email 

address. 

(3) Service requirements. Petitioner 

must serve the petition for review on the 

Regional Administrator and the permit 

applicant (if the applicant is not the 

petitioner). Once an appeal is docketed, 

every document filed with the 

Environmental Appeals Board must be 

served on all other parties. Service must 

be by first class mail, or by any reliable 

commercial delivery service. Upon 

agreement by the parties, service may be 

made by facsimile or electronic means. 

(4) Proof of service. A certificate of 

service must be appended to each 

document filed stating the names of 

persons served, the date and manner of 

service, as well as the electronic, 

mailing, or hand delivery address, or 

facsimile number, as appropriate. 

(j) Withdrawal of permit or portions of 

permit by Regional Administrator. The 

Regional Administrator, at any time 

prior to 30 days after the Regional 

Administrator files its response to the 

petition for review under paragraph (b) 

of this section, may, upon notification to 

the Environmental Appeals Board and 

any interested parties, withdraw the 

permit and prepare a new draft permit 

under § 124.6 addressing the portions so 

withdrawn. The new draft permit must 

proceed through the same process of 

public comment and opportunity for a 

public hearing as would apply to any 

other draft permit subject to this part. 

Any portions of the permit that are not 

withdrawn and that are not stayed 

under § 124.16(a) continue to apply. If 

the Environmental Appeals Board has 

held oral argument, the Regional 

Administrator may not unilaterally 

withdraw the permit, but instead must 

request that the Environmental Appeals 

Board grant a voluntary remand of the 

permit or any portion thereof. 

(k) Petitioner request for dismissal of 

petition. Petitioner, by motion, may 

request to have the Environmental 

Appeals Board dismiss its appeal. The 

motion must briefly state the reason for 

its request. 

(l) Final disposition and judicial 

review. (1) A petition to the 

Environmental Appeals Board under 

paragraph (a) of this section is, under 5 

U.S.C. 704, a prerequisite to seeking 

judicial review of the final agency 

action. 

(2) For purposes of judicial review 

under the appropriate Act, final agency 

action on a RCRA, UIC, NPDES, or PSD 

permit occurs when agency review 

procedures under this section are 

exhausted and the Regional 

Administrator subsequently issues a 

final permit decision under this 

paragraph. A final permit decision must 

be issued by the Regional 

Administrator: 

(i) When the Environmental Appeals 

Board issues notice to the parties that 

the petition for review has been denied; 

(ii) When the Environmental Appeals 

Board issues a decision on the merits of 

the appeal and the decision does not 

include a remand of the proceedings; or 

(iii) Upon the completion of remand 

proceedings if the proceedings are 

remanded, unless the Environmental 

Appeals Board’s remand order 

specifically provides that appeal of the 

remand decision will be required to 

exhaust administrative remedies. 

(3) The Regional Administrator must 

promptly publish notice of any final 

agency action regarding a PSD permit in 

the Federal Register. 


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5288 Federal Register / Vol. 78, No. 17 / Friday, January 25, 2013 / Rules and Regulations 

(m) Motions for reconsideration or 

clarification. Motions to reconsider or 

clarify any final disposition of the 

Environmental Appeals Board must be 

filed within 10 days after service of that 

order. Motions for reconsideration must 

set forth the matters claimed to have 

been erroneously decided and the 

nature of the alleged errors. Motions for 

clarification must set forth with 

specificity the portion of the decision 

for which clarification is being sought 

and the reason clarification is necessary. 

Motions for reconsideration or 

clarification under this provision must 

be directed to, and decided by, the 

Environmental Appeals Board. Motions 

for reconsideration or clarification 

directed to the Administrator, rather 

than the Environmental Appeals Board, 

will not be considered, unless such 

motion relates to a matter that the 

Environmental Appeals Board has 

referred to the Administrator pursuant 

to § 124.2 and for which the 

Administrator has issued the final order. 

A motion for reconsideration or 

clarification does not stay the effective 

date of the final order unless the 

Environmental Appeals Board 

specifically so orders. 

(n) Board authority. In exercising its 

duties and responsibilities under this 

part, the Environmental Appeals Board 

may do all acts and take all measures 

necessary for the efficient, fair, and 

impartial adjudication of issues arising 

in an appeal under this part including, 

but not limited to, imposing procedural 

sanctions against a party who, without 

adequate justification, fails or refuses to 

comply with this part or an order of the 

Environmental Appeals Board. Such 

sanctions may include drawing adverse 

inferences against a party, striking a 

party’s pleadings or other submissions 

from the record, and denying any or all 

relief sought by the party in the 

proceeding. Additionally, for good 

cause, the Board may relax or suspend 

the filing requirements prescribed by 

these rules or Board order. 

(o) General NPDES permits. (1) 

Persons affected by an NPDES general 

permit may not file a petition under this 

section or otherwise challenge the 

conditions of a general permit in further 

Agency proceedings. Instead, they may 

do either of the following: 

(i) Challenge the general permit by 

filing an action in court; or 

(ii) Apply for an individual NPDES 

permit under § 122.21 as authorized in 

§ 122.28 of this chapter and may then 

petition the Environmental Appeals 

Board to review the individual permit as 

provided by this section. 

(2) As provided in § 122.28(b)(3) of 

this chapter, any interested person may 

also petition the Director to require an 

individual NPDES permit for any 

discharger eligible for authorization to 

discharge under an NPDES general 

permit. 

(p) The Environmental Appeals Board 

also may decide on its own initiative to 

review any condition of any RCRA, UIC, 

NPDES, or PSD permit decision issued 

under this part for which review is 

available under paragraph (a) of this 

section. The Environmental Appeals 

Board must act under this paragraph 

within 30 days of the service date of 

notice of the Regional Administrator’s 

action. 

■ 5. Paragraph (b)(1) of § 124.60 is 

amended by removing the reference to 

‘‘§ 124.19(f)’’ in the first sentence and 

adding in its place ‘‘§ 124.19(k)(2)’’. 

PART 270—EPA ADMINISTERED 

PERMIT PROGRAMS: THE 

HAZARDOUS WASTE PERMIT 

PROGRAM 

■ 6. The authority citation for part 270 

continues to read as follows: 

Authority: 42 U.S.C. 6905, 6912, 6924, 

6925, 6927, 6939, and 6974. 

■ 7. Paragraph (f)(3) of § 270.42 is 

revised to read as follows: 

§ 270.42 Permit modification at the request 

of permittee. 

* * * * * 

(f) * * * 

(3) An automatic authorization that 

goes into effect under paragraph 

(b)(6)(iii) or (v) of this section may be 

appealed under the permit appeal 

procedures of 40 CFR 124.19; however, 

the permittee may continue to conduct 

the activities pursuant to the automatic 

authorization unless and until a final 

determination is made by the 

Environmental Appeals Board to grant 

review and remand the permit decision. 

* * * * * 

■ 8. Paragraph (a) of 270.155 is revised 

to read as follows: 

§ 270.155 May the decision to approve or 

deny my RAP application be 

administratively appealed? 

(a) Any commenter on the draft RAP 

or notice of intent to deny, or any 

participant in any public hearing(s) on 

the draft RAP, may appeal the Director’s 

decision to approve or deny your RAP 

application to EPA’s Environmental 

Appeals Board under § 124.19 of this 

chapter. Any person who did not file 

comments, or did not participate in any 

public hearing(s) on the draft RAP, may 

petition for administrative review only 

to the extent of the changes from the 

draft to the final RAP decision. Appeals 

of RAPs may be made to the same extent 

as for final permit decisions under 

§ 124.15 of this chapter (or a decision 

under § 270.29 to deny a permit for the 

active life of a RCRA hazardous waste 

management facility or unit). 

* * * * * 

[FR Doc. 2013–01318 Filed 1–24–13; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 239 and 258 

[EPA–R01–RCRA–2012–0944; FRL–9771–7] 

Adequacy of Massachusetts Municipal 

Solid Waste Landfill Permit Program 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Direct final rule. 

SUMMARY: This action approves a 

modification to Massachusetts’s 

approved municipal solid waste landfill 

(MSWLF) program. The approved 

modification allows the State to issue 

Research, Development, and 

Demonstration (RD&D) Permits to 

owners and operators of MSWLF in 

accordance with its State law. On March 

22, 2004, EPA issued final regulations 

allowing research, development, and 

demonstration (RD&D) permits to be 

issued to certain municipal solid waste 

landfills by approved states. On 

December 7, 2012 Massachusetts 

submitted an application to EPA Region 

1 seeking Federal approval of its RD&D 

requirements. After thorough review 

EPA Region 1 is determining that 

Massachusetts’s RD&D permit 

requirements are adequate through this 

direct final action. 

DATES: This determination of RD&D 

program adequacy for Massachusetts 

will become effective April 25, 2013 

without further notice unless EPA 

receives adverse comments on or before 

March 26, 2013. If adverse comments 

are received, EPA will review the 

comments and publish another Federal 

Register document responding to the 

comments and either affirming or 

revising the initial decision. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R01– 

RCRA–2012–0944, by one of the 

following methods: 

• www.regulations.gov: Follow the 

on-line instructions for submitting 

comments. 

• Email: hsieh.juiyu@epa.gov. 

• Fax: (617) 918–0646, to the 

attention of Juiyu Hsieh. 

• Mail: Juiyu Hsieh, RCRA Waste 

Management and UST Section, Office of 


srobinson on DSK4SPTVN1PROD with