[Federal Register Volume 86, Number 111 (Friday, June 11, 2021)]
[Rules and Regulations]
[Pages 31172-31177]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-12291]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 1 and 124

[EPA-HQ-OGC-2019-0406; FRL-10024-73-OA]
RIN 2090-AA41


Revisions to the Permit Appeals Process To Restore the 
Organization and Function of the Environmental Appeals Board

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is reversing recent 
changes to the organization and function of the Environmental Appeals 
Board (EAB) that altered the appeals process and procedures for Agency 
decisions that the EAB considers. In addition, the Administrator 
reaffirms that the Board is intended to function as an impartial body 
that is independent of all EPA components, except the immediate Office 
of the Administrator, and reaffirms the EAB's ability to carry

[[Page 31173]]

out the Administrator's delegated authority to adjudicate disputes and 
issue final Agency decisions.

DATES: This final rule is effective on June 11, 2021.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-HQ-OGC-2019-0406. All documents in the docket are 
listed on the https://www.regulations.gov website. Although listed in 
the index, some information is not publicly available, e.g., 
confidential business information (CBI) or other information whose 
disclosure is restricted by statute. Certain other material, such as 
copyrighted material, is not placed on the internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available electronically through https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Ammie Roseman-Orr, Environmental 
Appeals Board (EAB), U.S. Environmental Protection Agency, 1200 
Pennsylvania Avenue NW, Mail Code 1103M, Washington, DC 20460-0001; 
(202) 233-0122; email address: <a href="/cdn-cgi/l/email-protection#e7958894828a8689ca889595c9868a8a8e82a7829786c9808891"><span class="__cf_email__" data-cfemail="55273a263038343b783a27277b3438383c30153025347b323a23">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this action apply to me?

    This action affects the organization and function of the 
Environmental Appeals Board (EAB or Board) and the rules of practice 
governing administrative appeals. The rules of practice governing EAB 
appeals apply to any persons or entities who seek review of EPA final 
permit decisions under 40 CFR 124.19 by the EAB as well as persons or 
entities who appear before the Board in other matters.

B. When will this rule become effective?

    This rule will become effective upon publication in the Federal 
Register. The Administrative Procedure Act's requirement, 5 U.S.C. 
553(d), that substantive rules not be effective until at least 30 days 
after publication in the Federal Register is inapplicable because this 
rulemaking is procedural.

C. What is the Agency's authority for taking this action?

    EPA is issuing this document under its general rulemaking 
authority, 5 U.S.C. 301, which provides that ``[t]he head of an 
Executive department or military department may prescribe regulations 
for the government of this department, the conduct of its employees, 
the distribution and performance of its business, and the custody, use, 
and preservation of its records, papers, and property.'' EPA is not one 
of the 15 ``Executive Departments'' listed at 5 U.S.C. 101, however, 
EPA gained housekeeping authority through the Reorganization Plan No. 3 
of 1970, 84 Stat. 2086 (July 9, 1970).
    EPA's authority to issue this procedural rule is also contained in 
the Resource Conservation and Recovery Act, 42 U.S.C. 6901 et seq.; 
Safe Drinking Water Act, 42 U.S.C. 300(f) et seq.; Clean Water Act, 33 
U.S.C. 1251 et seq.; and Clean Air Act, 42 U.S.C. 1857 et seq. This 
rule does not expand the Board's authority beyond that of the 
Administrator in reviewing agency decisionmaking and making final 
agency determinations.
    Section 553 of the Administrative Procedure Act (APA), 5 U.S.C. 
553(b) (A), provides that ``rules of agency organization, procedure, or 
practice'' are exempt from notice and comment requirements. The action 
the Agency is taking in this document reverses certain amendments to 
the Environmental Appeals Board's procedural rules and replaces them 
with the prior regulatory text. These procedural revisions fall under 
the exemption provided in APA section 553(b)(3)(A), as did the rule 
originally establishing the EAB and its appeal procedures. 57 FR 5320, 
5322 (February 13, 1992). Some of the changes in this rule affect the 
organization of the Agency as it pertains to the organization and 
function of the EAB, and some of the changes alter the procedures 
applicable to appeals submitted to the EAB for adjudication. With 
respect to the appeals process and procedures, this action does not 
alter the rights or interests of the parties who come before the Board; 
rather, it reinstates the prior process and procedures used by the 
Board to review the Agency decision being appealed. Accordingly, EPA is 
taking no comment on this action.

II. Background

A. What action is the Agency taking?

    The Agency is rescinding certain changes made to EPA's 
Environmental Appeals Board and its appeal process that were 
promulgated on August 21, 2020 (85 FR 51650) (hereafter ``2020 EAB 
Rule'' or ``2020 amendments''). Specifically, the EPA is reinstating 
the regulatory text at 40 CFR 1.25 and most of 40 CFR 124.19 that 
existed prior to the 2020 amendments. The 2020 EAB Rule is subject to 
review consistent with the Executive Order 13990, ``Protecting Public 
Health and the Environment and Restoring Science to Tackle the Climate 
Crisis,'' section 2(a) (January 20, 2021) (86 FR 7037, January 25, 
2021). Based on that review, the Agency has determined that the 2020 
EAB Rule adversely affects the administration of the Agency's appeals 
process and procedures and, thus, rescission of the 2020 EAB Rule is 
warranted. This action does not, however, alter the revisions that the 
2020 EAB Rule made to 40 CFR part 49 or 71, which made the permit 
appeal procedures in 40 CFR 124.19 applicable to permits issued to 
tribes in Indian Country under part 49 (for minor and non-attainment 
NSR permits) and to Title V permits issued under part 71. Applying the 
same appeal procedures to these types of permits makes the appeals 
process more consistent, efficient, and transparent.
    The EAB was established by rule in 1992 as an impartial body, 
independent of other EPA components outside of the immediate Office of 
the Administrator, to conduct full and fair adjudications and to allow 
for a broader range of input into Agency decisions by the 
Administrator's express delegation of authority. 57 FR 5320 (February 
13, 1992). This rule reinstates the regulatory provisions related to 
the establishment and function of the EAB and the permit appeals 
process as they existed prior to the 2020 amendments. In doing so, the 
Administrator is ensuring that the EAB can continue to uphold the 
integrity of the Agency's decisionmaking, including the advancement of 
environmental justice.
    The 2020 EAB Rule altered regulatory text pertaining to EAB 
procedures governing permit appeals, which are informal adjudications 
under the Administrative Procedure Act. Specifically, the 2020 EAB Rule 
was intended to preclude the EAB's review of discretionary Agency 
actions and to make the Board's scope of review more akin to that of 
federal courts. To accomplish that goal, the 2020 EAB Rule removed 
regulatory text pertaining to the EAB's review of challenges based on 
the permit issuer's exercise of discretion, as well as the Board's 
discretion to review important policy considerations. The changes 
adversely affected the Board's ability to review--in the context of a 
permit appeal--a permit issuer's compliance with and application of 
important EPA policies and Executive orders (85 FR 51652), such as 
Executive Order 12898, ``Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations,'' 59 FR 
7629 (February 16, 1994), which the Board has done in many prior cases. 
Additionally, the 2020 EAB Rule's stated aim of aligning the Board's 
standard of review with that

[[Page 31174]]

of federal courts is not met by the 2020 EAB Rule, because the 
Administrative Procedure Act authorizes Federal courts to set aside any 
final agency action under review that is arbitrary, capricious, or an 
abuse of discretion. 5 U.S.C. 706. By limiting the Board's review to 
clearly erroneous findings of fact and conclusions of law, and 
excluding the review of discretionary Agency action and compliance with 
EPA policies and Executive orders, the 2020 EAB Rule injected 
uncertainty with respect to the Board's ability to review acts or 
omissions of the exercise of Agency discretion (and with respect to the 
applicability of prior related precedent). The effect of the 2020 EAB 
Rule also conflicts with the efficient and effective functioning of the 
EAB to administratively review Agency action before it is final, 
irrespective of a Federal court's scope or standard of review, and to 
ensure that Agency components consistently comply with Agency policies 
in a manner that comports with exercising the delegated functions of 
the Administrator. As such, these changes present obstacles for the 
Board in ensuring the integrity of Agency decisionmaking where the 
decision involves discretionary agency action and may impede the 
advancement of important polices, such as environmental justice. For 
this reason, this rule rescinds the changes to the EAB's standard for 
review in permit appeals.
    The 2020 EAB Rule also adversely affected other aspects of the 
process for permit appeals. To purportedly ``streamline the permitting 
appeal process,'' the rule set deadlines for the EAB's review by 
imposing a 60-day requirement to issue permit decisions. The 2020 EAB 
Rule also restricted the number and length of extensions of time that 
parties may request. Given the wide range of issues and arguments 
raised in petitions for review by the EAB, these restrictions are 
overly prescriptive. Briefing schedules, extensions of time, and even 
the time it takes to issue a decision are more effectively managed on a 
case-by-case basis after considering the nature and circumstances 
present in the case balanced with the resources and demands of the EAB. 
Existing EAB rules provide the Board the authority, in exercising its 
duties and responsibilities, to ``do all acts and take all measures 
necessary for the efficient, fair, and impartial adjudication of issues 
arising in an appeal.'' 40 CFR 124.19(n). The ability of a tribunal to 
manage its docket--including granting extensions, setting deadlines, 
and determining procedural requirements--is essential to its ability to 
provide an efficient, fair, and impartial adjudication. Removing the 
ability of the EAB to manage its caseload based on the wide range of 
circumstances that may be presented runs counter to those goals.
    Additionally, the stated objective to ``streamline'' the permitting 
process in the 2020 EAB Rule was not well-supported. The EAB review 
process not only provides a meaningful opportunity for affected 
communities to have their concerns addressed, it also expedites the 
process of obtaining a final, valid permit by facilitating a process 
that is faster and more certain for the applicant. Permit appeals to 
the EAB are resolved within a reasonable timeframe and the overwhelming 
majority of EAB decisions resolve the dispute without the need for 
federal court litigation, which generally takes considerably longer. On 
average, very few EAB decisions are appealed to Federal court and very 
few of those have been overturned. Over the years the EAB has 
continually refined and altered its processes to reduce the amount of 
time it takes to effectively resolve an appeal and to make it easier 
for people to use the appeals process, including the use of electronic 
filing, making the EAB docket publicly accessible and EAB decisions 
publicly searchable, implementing word limits on briefs, streamlining 
procedures for participation in permit appeals, improving internal 
processes, and implementing the EAB's highly successful Alternative 
Dispute Resolution process. The EAB has demonstrated a commitment to 
continuous improvement in the permit appeal process.
    The 2020 EAB Rule also altered the deadline and page limit for 
Amicus participation. Amicus parties in EAB cases can include impacted 
States, Tribes, and Municipalities (when they are not a petitioner or 
respondent in the appeal), trade associations, and--when a non-EPA 
authority is the permit issuer--the EPA's Office of General Counsel. It 
is in the best interest of the appeals process to provide amicus 
parties with reasonable timeframes in which to file briefs in appeals, 
so long as the time allowed will not unduly interfere with the 
efficiency of the process. Requiring Amicus briefs to be submitted in 
all cases before the Permit Issuer responds to a Petition for Review, 
and limiting the length of such briefs to 15 pages, both of which the 
2020 EAB Rule does, unnecessarily restricts the EAB's consideration of 
amici participation in a manner that may preclude the EAB from 
receiving fully informative briefing of the issues on appeal and, as 
such, may complicate rather than streamline or improve the permitting 
appeal process.
    The 2020 EAB Rule also removed the Board's authority to decide on 
its own initiative, or sua sponte, to review any condition of a 
Resource Conservation and Recovery Act (RCRA), Underground Injection 
Control (UIC), National Pollutant Discharge Elimination System (NPDES), 
or Prevention of Significant Deterioration (PSD) permit decision 
reviewable under 40 CFR 124.19, even when that permit has not been 
appealed. Consistent with the delegated authority by the Administrator 
to review agency decisions, this final rule reinstates the Board's sua 
sponte authority, which has been in place since the Board was 
established.
    With respect to the function of the Board, the 2020 EAB Rule 
modified the EAB's prior-existing delegation of authority by 
authorizing the EPA General Counsel, who frequently appears before the 
EAB in disputed matters as Counsel, or works closely with an EPA Region 
or EPA program office as ``of Counsel,'' to issue dispositive 
determinations on pending EAB matters. Specifically, the 2020 EAB Rule 
provides that the Administrator acting through the General Counsel can 
issue a dispositive legal interpretation in any matter pending before 
the EAB (including enforcement or permit matters) or on any issues 
addressed by the EAB. These revisions are inconsistent with the EAB's 
original establishment and function and undermine the transparency, 
fairness, and finality of EAB decisions. When the Board was 
established, the Administrator recognized the need to make clear that 
``the Administrator's adjudicative authority and the Administrator's 
enforcement authority (delegated to various Regional and Headquarters 
enforcement officers) are delegated to, and exercised by separate and 
distinct components of the Agency.'' 57 FR 5322. For this reason, the 
rules expressly prohibit Board Members from being employed by the 
Office of General Counsel or any other office directly associated with 
matters that could come before the EAB. 40 CFR 1.25(e)(3). The EAB's 
independence from the various component offices outside the immediate 
Office of the Administrator is a critical element of inspiring 
confidence in the fairness and transparency of the Agency's appellate 
adjudication process. This includes independence from the Office of the 
General Counsel, which is not part of the immediate Office of the 
Administrator.
    Additionally, administrative review by the EAB involves a review of 
the

[[Page 31175]]

record of decision as it existed at the time the decision was made. A 
post-hoc interpretation of law that is issued while an appeal is 
pending, and that is binding on the EAB, injects confusion into the 
Agency decisionmaking process and conflicts with the EAB's review of 
the Agency's understanding or application of the law at the time the 
decision was made. Transparency and fairness in the review of Agency 
decisionmaking is better served by not injecting a newly issued 
interpretation of law from the Office of General Counsel while an 
appeal is pending before the Board. Additionally, because the Office of 
General Counsel is often counsel, ``of counsel'' or an amicus party in 
Board cases, the imposition of a new binding interpretation of law 
issued through the Office of General Counsel during the pendency of an 
appeal raises the very concerns that the EAB was established to 
address. Moreover, this modification was unnecessary because, among 
other reasons, a reconsideration process exists for EAB decisions and 
matters can be referred to the Administrator for decision. In sum, a 
legal interpretation binding on the EAB issued during the pendency of 
an appeal undermines the EAB's exercise of the Administrator's 
delegated adjudicative authority as well as confidence in the fairness 
of the process.
    The 2020 EAB Rule also established a process for the Administrator 
to reverse the EAB's designation of a decision for publication. A 
decision designated for publication means the decision is slated to be 
reproduced in bound volumes of the Environmental Administrative 
Decisions and appear on the Board's website as a published decision. 
Practically speaking, re-designating a decision as unpublished does not 
alter the EAB's statutory obligation to publish all final decisions and 
orders on its website under 5 U.S.C. 552(a)(2)(A) (i.e., both published 
and unpublished final orders). The intent of the rule change, however, 
was not necessarily to affect which decisions are made available to the 
public; rather, the intent was to indicate to reviewing courts that 
only published EAB decisions may warrant deference. 85 FR 51653 (August 
21, 2020) (noting in the preamble that ``it is the express policy of 
the Agency that only published decisions of the EAB represent EPA's 
official, authoritative position with regard to the issues addressed in 
such decisions'' and that the intent of the change is to ``indicate to 
reviewing courts that only published EAB decisions may warrant 
deference''). As revised, the regulatory text added in the 2020 EAB 
Rule regarding decisions for publication neither determines which 
decisions will be made available to the public nor forecloses a 
reviewing court from choosing to afford deference to an unpublished 
decision. Whether a decision is categorized as ``published'' versus 
``unpublished'' is also not determinative of whether a party will rely 
on a case or cite a case to the Board. Consistent with the foundational 
legal principle of stare decisis, the Board generally follows its own 
prior applications of law where the same factual and legal principles 
are presented. The use of a system of precedential decisions makes the 
decisional process more transparent and consistent for all, including 
the public. Given all of the above, the provision providing for the 
Administrator to determine whether a decision should be re-categorized 
as unpublished or not followed in future cases could negatively affect 
the transparency and consistency of EAB decisionmaking, and interfere 
with the independence and function of the EAB to issue final decisions 
as delegated by the Administrator, which again is fundamental to 
inspiring confidence in the fairness of the Agency's appellate 
adjudication process.
    Finally, the 2020 EAB Rule set 12-year term limits for EAB judges 
to serve on the Board. When the Board was established, it was created 
as a ``permanent body with continuing functions.'' 57 FR 5320. For 
twenty-nine years, the EAB judges have been career employees and 
members of the Senior Executive Service (SES), governed by a specific 
statute implemented by the Office of Personnel Management (OPM), 
specifically 5 U.S.C. 3395. The EAB judge position has been classified 
as Career Reserved, which means that the position is filled by a career 
appointee and designated as such to ensure impartiality, and the 
public's confidence in the impartiality, of the government. 5 CFR 
214.402. The Career Reserved designation is particularly appropriate 
for positions, like this, that involve adjudication and appeals. Id. In 
addition, imposing a 12-year term limit is unnecessary given that the 
Administrator assigns and appoints career appointees to serve as EAB 
judges, and each judge acts on the express delegated authority of the 
Administrator and remains accountable to the Administrator. Further, 
pursuant to 3395 and 5 CFR 317.901, each judge, as a member of the SES, 
is subject to reassignment by the Administrator to any other SES 
position in the Agency for which he or she qualifies, if the 
Administrator so chooses. 5 U.S.C. 3395 (governing the reassignment or 
transfer of SES employees); 5 CFR 317.901 (setting forth procedures for 
effectuating SES reassignments or transfers). The added term limits 
neither expanded nor removed any authority that the Administrator has 
over the EAB judge positions. The Agency has benefited from judges who 
have served on the EAB for long terms because these judges have deep 
experience in EAB jurisprudence and provide important stability for the 
Board, as well as the Agency's administrative jurisprudence. Further, 
although the 2020 EAB Rule set 12-year term limits, it applied those 
limits on a ``rolling basis'' to the current judges, where the most 
senior judge's term expires three years from the effective date of the 
2020 EAB Rule. 85 FR 51653. This ``retroactive'' application of the 12-
year term limits to current judges conflicts with the ``dignity and 
stature'' that was originally intended for ``the Agency's highest 
adjudicative body.'' 57 FR 5320. Potentially rotating in a new judge 
every three years (or even more often if vacancies occur) could inject 
instability into the appeals process, may appear to politicize the 
position in a way that is antithetical to the career reserved 
designation, and does not serve the Agency's intent in creating the EAB 
as a specialized, impartial appellate Agency tribunal. Removing the 
term limits leaves in place the Administrator's authority to reassign 
any SES judge, consistent with relevant SES statutes and regulations, 
if the Administrator chooses.
    In sum, by rescinding the 2020 EAB Rule and reverting the 
regulations pertaining to the EAB's function and process to the prior 
existing regulatory text, the Administrator is reaffirming the EAB's 
original function as an impartial body, independent of other EPA 
components, to conduct full and fair adjudications in the exercise of 
the Administrator's delegated authority. In modifying the 
Administrator's delegation of authority to the EAB, the 2020 EAB Rule 
weakened the administration of the Agency's appeals process and 
procedures. The reversion of the regulatory text will better safeguard 
the EAB's ability to efficiently and effectively manage the appeals 
process and ensure the integrity of Agency decisionmaking, advance 
environmental justice, and protect public health and the environment, 
in accordance with the mission of the Agency. The Agency intends to 
further consider the advisability of future revisions to the EAB's 
procedural rules

[[Page 31176]]

to incorporate any other housekeeping revisions needed for efficiently 
and effectively processing appeals.

III. Statutory and Executive Order Reviews

A. Executive Orders 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is exempt from review by the Office of Management and 
Budget (OMB) because it is limited to agency organization, management 
or personnel matters.

B. Paperwork Reduction Act (PRA)

    This action does not contain any information collection activities 
and therefore does not impose an information collection burden under 
the PRA.

C. Regulatory Flexibility Act (RFA)

    This action is not subject to the RFA. The RFA applies only to 
rules subject to notice and comment rulemaking requirements under the 
Administrative Procedure Act (APA), 5 U.S.C. 553, or any other statute. 
This rule pertains to agency management or personnel, which the EPA 
expressly exempts from notice and comment rulemaking requirements under 
5 U.S.C. 553(a)(2).

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in 
UMRA, 2 U.S.C. 1531-1536, and does not significantly or uniquely affect 
small governments. The action imposes no enforceable duty on any state, 
local, or tribal governments or the private sector.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
a substantial direct effect on the States, on the relationship between 
the National Government and the States, or on the distribution of power 
and responsibilities among the various levels of government.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications as specified in 
Executive Order 13175.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    The EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern environmental health or safety risks 
that EPA has reason to believe may disproportionately affect children, 
per the definition of ``covered regulatory action'' in section 2-202 of 
the Executive order. This action is not subject to Executive Order 
13045 because it does not concern an environmental health risk or 
safety risk.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution or Use

    This action is not a ``significant energy action'' because it is 
not likely to have a significant adverse effect on the supply, 
distribution or use of energy.

I. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    This action is not subject to Executive Order 12898 (59 FR 7629, 
February 16, 1994) because it does not establish an environmental 
health or safety standard.

K. Congressional Review Act (CRA)

    This rule is exempt from the CRA because it is a rule relating to 
agency management or personnel; and 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 1

    Environmental protection, Organization and functions (Government 
agencies).

40 CFR Part 124

    Environmental protection, Administrative practice and procedures, 
Air pollution control, Hazardous waste, Indians--lands, Reporting and 
recordkeeping requirements, Water pollution control, Water supply.

Michael S. Regan,
Administrator.

    For the reasons stated in the preamble, the Environmental 
Protection Agency amends 40 CFR parts 1 and 124 as follows:

PART 1--STATEMENT OF ORGANIZATION AND GENERAL INFORMATION

0
1. The authority citation for part 1 continues to read as follows:

    Authority: 5 U.S.C. 552; Reorganization Plan No. 3 of 1970, 84 
Stat. 2086 (July 9, 1970).


0
2. Amend Sec.  1.25 by:
0
a. Revising paragraph (e)(2);
0
b. Removing paragraphs (e)(3) and (5); and
0
c. Redesignating paragraph (e)(4) as paragraph (e)(3).
    The revision reads as follows:


Sec.  1.25 Staff   offices.

* * * * *
    (e) * * *
    (2) Functions. The Environmental Appeals Board shall exercise any 
authority expressly delegated to it in this title. With respect to any 
matter for which authority has not been expressly delegated to the 
Environmental Appeals Board, the Environmental Appeals Board shall, at 
the Administrator's request, provide advice and consultation, make 
findings of fact and conclusions of law, prepare a recommended 
decision, or serve as the final decisionmaker, as the Administrator 
deems appropriate. In performing its functions, the Environmental 
Appeals Board may consult with any EPA employee concerning any matter 
governed by the rules set forth in this title, provided such 
consultation does not violate applicable ex parte rules in this title.
* * * * *

PART 124--PROCEDURES FOR DECISIONMAKING

0
3. 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.


0
4. Amend Sec.  124.19 by:
0
a. Revising paragraphs (a)(4), (e), (g), and (l);
0
b. Removing paragraph (m) and redesignating paragraphs (n) through (p) 
as paragraphs (m) through (o), respectively; and
0
c. Adding a new paragraph (p).
    The revisions and addition read as follows:


Sec.  124.19   Appeal of RCRA, UIC, NPDES and PSD Permits.

    (a) * * *
    (4) Petition contents. (i) In addition to meeting the requirements 
in paragraph (d) of this section, a petition for review 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

[[Page 31177]]

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 Sec.  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 Sec.  
124.13. Additionally, if the petition raises an issue that the Regional 
Administrator addressed in the response to comments document issued 
pursuant to Sec.  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.
* * * * *
    (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.
* * * * *
    (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 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.
* * * * *
    (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 permit occurs when agency review procedures 
under this section are exhausted and the Regional Administrator 
subsequently issues a final permit decision under this paragraph (l). 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 in the Federal Register regarding the following 
permits:
    (i) PSD permits;
    (ii) Outer continental shelf permits issued under 40 CFR part 55;
    (iii) Federal Title V operating permits issued under 40 CFR part 
71;
    (iv) Acid Rain permits appealed under 40 CFR part 78;
    (v) Tribal Major Non-Attainment NSR permits issued under 40 CFR 
49.166 through 49.173; and
    (vi) Tribal Minor NSR permits issued under 40 CFR 49.151 through 
49.161.
* * * * *
    (p) Authority to initiate review. 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 (p) within 30 
days of the service date of notice of the Regional Administrator's 
action.

[FR Doc. 2021-12291 Filed 6-10-21; 8:45 am]
BILLING CODE 6560-50-P


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