[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: [email protected].
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]
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