[Federal Register Volume 78, Number 17 (Friday, January 25, 2013)]
[Rules and Regulations]
[Pages 5281-5288]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-01318]


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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.

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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: [email protected]. 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 Sec.  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

[[Page 5282]]

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:
    [dec221] 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
    [dec221] 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 Sec.  
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 Sec.  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, Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  124.19, as provided in Sec.  
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 
Sec.  124.19(c), notwithstanding the provisions of Sec.  124.15(b).'' 
Because today's rule modifies the appeal procedures to eliminate a 
second round of substantive review after the grant of review, Sec.  
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

[[Page 5283]]

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 
Sec.  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 
Sec.  124.19, including those appeals authorized under Sec.  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 Sec.  270.150, and 
such notice includes the procedures for appealing the decision under 
Sec.  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 Sec.  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 Sec.  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

[[Page 5284]]

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 well-established 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

[[Page 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. 
Sec.  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 Sec.  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 Sec.  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

0
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.


0
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.

0
3. Paragraph (b)(1) of Sec.  124.16 is revised to read as follows:


Sec.  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 Sec.  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.
* * * * *

0
4. Section 124.19 is revised to read as follows:


Sec.  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 Sec.  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 Sec.  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 Sec.  124.15 or a decision to 
deny a permit for the active life of a RCRA hazardous waste management 
facility or unit under Sec.  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

[[Page 5286]]

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 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.
    (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

[[Page 5287]]

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 hand-
delivery.
    (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 Sec.  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 Sec.  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.

[[Page 5288]]

    (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 Sec.  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 Sec.  122.21 as 
authorized in Sec.  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 Sec.  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.

0
5. Paragraph (b)(1) of Sec.  124.60 is amended by removing the 
reference to ``Sec.  124.19(f)'' in the first sentence and adding in 
its place ``Sec.  124.19(k)(2)''.

PART 270--EPA ADMINISTERED PERMIT PROGRAMS: THE HAZARDOUS WASTE 
PERMIT PROGRAM

0
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.


0
7. Paragraph (f)(3) of Sec.  270.42 is revised to read as follows:


Sec.  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.
* * * * *

0
8. Paragraph (a) of 270.155 is revised to read as follows:


Sec.  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 Sec.  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 Sec.  124.15 of this chapter (or a 
decision under Sec.  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