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Environmental Appeals Board Revises Procedural Rules

Posted Thursday, February 7th, 2013

On January 25, 2013, the Environmental Appeals Board (EAB) published notice of revisions to procedural rules applicable to appeals.  The EAB reviews appeals from permits issued under the Resource Conservation and Recovery Act (RCRA), the Underground Injection Control (UIC) program of the Safe Drinking Water Act, the National Pollutant Discharge Elimination System (NPDES) program of the Clean Water Act, the Prevention of Significant Deterioration (PSD) program of the Clean Air Act, and other final permit decisions.  The revisions add procedural rules and codify existing practices based on EAB standing orders, precedent regarding procedure, and the Environmental Appeals Board Practice Manual.  According to the EAB, these changes are intended to make the review process more straightforward and efficient.

In particular, the revisions eliminate the bifurcated procedure where petitioners file a substantive petition demonstrating review is warranted and then, upon grant of review, file a substantive briefing for review.  Instead petitioners will submit substantive briefing at the outset of the appeal, and the EAB will conduct one substantive review.  Revisions also clarify the requirements petitions must meet to show that a permit decision warrants review.  Further revision address procedures for filing documents, service of notice, and filing deadlines for certain responses and amicus briefs.   In addition, the revised rule clarifies the EAB’s authority to impose procedural sanctions and adds that petitioners are responsible for notifying the permit issuer and the permit applicant (if the petitioner is not the applicant) when a petition is filed.  A summary of changes is available here.  The changes become effective on March 26, 2013.

For additional information contact Jon Harris Maurer.

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