AGENCY:

Environmental Protection Agency.

ACTION:

Proposed rule.

SUMMARY:

The Environmental Protection Agency (EPA) proposes a procedural rule intended to streamline and modernize part of the Agency's permitting process by creating a new, time-limited alternative dispute resolution process (ADR process) as a precondition to judicial review. Under this proposal, the parties in the ADR process may agree by unanimous consent to either extend the ADR process or proceed with an appeal before the Environmental Appeals Board (EAB). If the parties don't agree to proceed with either the ADR process or an EAB appeal, the permit would become final and could be challenged in federal court. EPA also proposes to amend the current appeal process to clarify the scope and standard of EAB review, remove a provision authorizing participation in appeals by amicus curiae, and eliminate the EAB's authority to review Regional permit decisions on its own initiative, even absent an appeal. To promote internal efficiencies, EPA also proposes to establish a 60-day deadline for the EAB to issue a final decision once an appeal has been fully briefed and argued and to limit the length of EAB opinions to only as long as necessary to address the issues raised in an appeal; EPA also proposes to limit the availability of extensions to file briefs. The proposed rule would apply to permits issued by or on behalf of EPA under the Clean Air Act, the Clean Water Act, the Safe Drinking Water Act, and the Resources Conservation and Recovery Act. In addition to these permit appeal reforms, EPA proposes several additional reforms designed to provide tools to better allow the Administrator to exercise his or her statutory authority together with appropriate checks and balances on how the Board exercises its delegated authority. In this vein, EPA proposes to set twelve-year terms for EAB Judges, which the Administrator may renew at the end of that twelve-year period or reassign the Judge to another position within EPA. EPA also proposes a new process to identify which EAB opinions will be considered precedential. Finally, EPA proposes a new mechanism by which the Administrator, by and through the General Counsel, can issue a dispositive legal interpretation in any matter pending before the EAB.

DATES:

Comments must be received on or before January 2, 2020.

ADDRESSES:

Submit your comments, identified in Docket ID No. EPA-HQ-OGC-2019-0406, at https://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www.epa.gov/​dockets/​commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT:

Mark Talty, Office of General Counsel, Environmental Protection Agency, 1200 Pennsylvania Avenue NW, Washington, DC 20460; (202) 564-2751; email address: staff_ogc@epa.gov.

SUPPLEMENTARY INFORMATION:

Submitting CBI. Do not submit information that you consider to be CBI electronically through https://www.regulations.gov or email. Send or deliver information identified as CBI only to the following address using U.S. Postal Service: U.S. Environmental Protection Agency, EPA Docket Center, EPA-HQ-OGC-2019-2751, Mail Code 2310A, 1200 Pennsylvania Avenue NW, Washington, DC 20460. For other methods of delivery, see https://www.epa.gov/​dockets/​where-send-comments-epa-dockets.

Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. If you submit a CD-ROM or disk that does not contain CBI, mark the outside of the disk or CD-ROM clearly that it does not contain CBI. Information marked as CBI will not be disclosed except in accordance with procedures set forth in 40 Code of Federal Regulations (CFR) part 2.

Organization of This Document. The following outline is provided to aid in locating information in this preamble.

I. General Information

A. Does this action apply to me?

B. What action is the Agency taking?

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

II. Background

A. The Evolving Role of the EAB in Permit Appeals

B. What are the major permitting functions of the EAB?

C. What is the current process for permit appeals to the Environmental Appeals Board?

III. Summary of Today's Proposal

A. What are the key elements of this proposal?

1. New Time-Limited ADR Process

2. Clarifying the EAB's Scope and Standard of Review in Permit Appeals

3. Eliminating Amicus Curiae Participation

4. Eliminating Sua Sponte Review

5. Expediting the Appeal Process

6. 12-Year Terms for EAB Judges

7. Identifying Precedential EAB Decisions

8. Administrator's Legal Interpretations

9. Conforming Revisions

B. How would today's proposal affect pending appeals?

C. Why is EPA undertaking this reform?

D. What provisions of the CFR is EPA proposing to revise?

E. What regulatory text has EPA included in this proposal?

IV. Request for Comment

V. Statutory and Executive Orders

I. General Information

A. Does this action apply to me?

This proposed procedural rule would not regulate any person or entity outside EPA. This proposal would modify the process relevant to certain administrative appeals handled by the EAB under 40 CFR 124.19 and other regulations listed below. It may be of interest to persons and entities that apply for or are interested in challenging EPA permitting decisions under the National Pollutant Discharge Elimination System (NPDES) program of the Clean Water Act, the Safe Drinking Water Act's Underground Injection Control (UIC) program, and the Resources Conservation and Recovery Act (RCRA), including Remedial Action Plans, 40 CFR 270.42(f) & 270.155. It may also be of interest to persons or entities interested in challenging EPA permitting decisions under the Clean Air Act, including Outer Continental Shelf permits, 40 CFR 55.6(a)(3); Title V permits, 40 CFR 71.11(l); Acid Rain permits, 40 CFR 78.3(b)(1); Tribal Major Non-Attainment NSR permits, 40 CFR 49.172(d)(5); and Tribal Minor NSR permits, 40 CFR 49.159(d).

In addition, any person or entity interested in EPA's administrative processes may be interested in this proposal. With exception of section III.A.7 (Administrator's Legal Interpretations), nothing in this proposal affects the EAB's adjudication of enforcement appeals.

B. What action is the Agency taking?

This is a rule of agency organization, procedure or practice. Although not subject to the notice and comment requirements of the Administrative Procedure Act, the Agency nonetheless voluntarily seeks comment because it believes that the information and opinions supplied by the public will inform the Agency's views. To this end, EPA solicits information and comment from the public on EPA's proposal to streamline part of EPA's permitting process.

Each proposal is identified immediately below and described in Section III.

First, EPA solicits comment on a proposal to create a new, time-limited ADR process, resulting in a fundamental change to the Agency's long-held administrative exhaustion requirements. Any interested party seeking judicial review of an EPA permit would have to participate in this new process before filing a petition in federal court. Under this new process, the parties would have the choice, by unanimous consent, to extend the ADR process or proceed to an appeal before the EAB.

Second, EPA solicits comment on a proposal to clarify the scope and standard of the EAB's review. Under the current regulations, the EAB reviews petitions for a finding of fact or conclusion of law that is clearly erroneous. 40 CFR 124.19(a)(4)(i)(A). However, the current regulations also include a provision that provides that the EAB may review of an exercise of discretion “or an important policy consideration.” 40 CFR 124.19(a)(4)(i)(B). This has led to some confusion as to whether a petitioner may ask the EAB—standing in the Administrator's shoes—to address issues that a federal court generally could not review, such as whether EPA properly exercised its discretion relative to an “important policy consideration.” In any event, to the extent 40 CFR 124.19(a)(4)(i)(B) suggests that the EAB may review EPA's compliance with discretionary policies, EPA is proposing to eliminate that provision and clarify that the EAB's scope and standard of review is limited to findings of fact and conclusions of law that are clearly erroneous.

Third, EPA solicits information and comment on a proposal to remove 40 CFR 124.19(e), which currently authorizes interested persons to participate in a permit appeal as amicus curiae. Under today's proposal, the EAB would no longer accept amicus curiae briefs.

Fourth, EPA also solicits comment on a proposal to eliminate the EAB's authority to review Regional permit decisions on its own initiative (sua sponte), even absent a private party appeal. In EPA's experience, the EAB rarely invokes this authority, and to exercise it now could impede timely permitting.

Fifth, EPA solicits comment on a proposal to establish a 60-day deadline for the EAB to issue a final decision once an appeal has been fully briefed and argued. EPA also solicits information and comment on a proposal to limit the availability of filing extensions to one request per party, with a maximum extension of 30 days. (Nothing in the proposed rule would modify the EAB's discretion to relax or suspend filing requirements for good cause.)

Sixth, EPA solicits comment on a proposal to set twelve-year terms for EAB Judges, which the Administrator may renew at the end of that twelve-year period or reassign the Judge to another position within EPA.

Seventh, EPA solicits comment on a proposal to establish a mechanism by which the Administrator, by and through the General Counsel, can issue a dispositive legal interpretation in any matter pending before the EAB or on any issue addressed by the EAB.

The new ADR process and the revised permit appeal procedures apply only to permitting decisions under:

• The National Pollutant Discharge Elimination System (NPDES) program of the Clean Water Act;
• The Safe Drinking Water Act's Underground Injection Control (UIC) program;
• The Resources Conservation and Recovery Act (RCRA), including Remedial Action Plans, 40 CFR 270.42(f) & 270.155; and
• The Clean Air Act, including Prevention of Significant Deterioration (PSD) permits, Outer Continental Shelf permits, 40 CFR 55.6(a)(3); Title V permits, 40 CFR 71.11(l); Acid Rain permits, 40 CFR 78.3(b)(1); Tribal Major Non-Attainment NSR permits, 40 CFR 49.172(d)(5); and Tribal Minor NSR permits, 40 CFR 49.159(d).

In particular, the new ADR process and procedural changes in this proposal would not apply to other types of appeals not listed above. Those topics are outside the scope of this rulemaking. Specifically, EPA does not solicit comment on the EAB's enforcement functions. In addition, with the exception of the proposed revisions above, nothing in this proposal would alter the mechanics of permit appeals or the process by which parties interact with the EAB, e.g., service requirements. Those issues are also outside the scope of this rulemaking and EPA does not solicit comment on them.

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

EPA's authority to issue this proposed procedural rule is contained in 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. EPA has additional authority under the Federal Housekeeping Statute, 5 U.S.C. 301, which authorizes an agency head to prescribe regulations governing his or her department and the performance of its business, among other purposes.

II. Background

A. The Evolving Role of the Environmental Appeals Board in Permit Appeals

The EAB was created in 1992 to hear, among other things, administrative appeals of enforcement proceedings and EPA-issued permits. The purpose of its creation was to formally transfer the Administrator's authority over such appeals to the new Board in an effort to address the Agency's expanding enforcement docket and an increase in EPA-issued permits.

Over the past 27 years, the EAB's role in permit appeals has changed as more states and tribes have assumed permitting authority under EPA's statutes. For example, 47 states and one territory have assumed authority to administer NPDES permits under the Clean Water Act. In the context of RCRA, 48 states, the District of Columbia, and Guam have been authorized to implement either all or parts of state hazardous waste programs in lieu of RCRA subtitle C. Under the Clean Air Act, 43 states fully administer the PSD program, and EPA has approved Title V permit programs in all 50 states. As discussed later in this document, the EAB does not hear challenges to most state-issued permits.

As more states and tribes have assumed authority, the Agency has dramatically reduced the number of EPA-issued permits and, in turn, the number of permits appealed to the EAB. Since January 1, 2016, a total of 50 permit appeals have been filed with the EAB affecting a total of 40 permits.

In 2010, the EAB launched a voluntary ADR program to assist parties in resolving disputes before the EAB, including permit appeals. The EAB established this ADR program to promote faster resolution of issues and more creative, satisfying and enduring solutions; to foster a culture of respect and trust among EPA, its stakeholders, and its employees and to improve working relationships; to promote compliance with environmental laws and regulations; to expand stakeholder support for Agency programs; and to promote better environmental outcomes. The EAB's ADR program currently offers parties the option of participating in ADR with the assistance of an EAB Judge acting as a neutral evaluator/mediator (generally referred to as the Settlement Judge). The ADR program has been highly successful, and, to date, over 90% of the cases that have gone through the program have been resolved without litigation. See The EPA's Environmental Appeals Board at Twenty-five: An Overview of the Board's Procedures, Guiding Principles, and Record of Adjudicating Cases, p. 5 available at https://yosemite.epa.gov/​oa/​EAB_​Web_​Docket.nsf/​8f612ee7fc725edd852570760071cb8e/​381acd4d3ab4ca358525803c00499ab0/​$FILE/​The%20EAB%20at%20Twenty-Five.pdf. Since its inception, the ADR Program has helped parties achieve faster resolution of issues, enduring solutions, and broader support for outcomes. Id.

B. What are the major permitting functions of the Environmental Appeals Board?

Under the current regulations, the EAB has jurisdiction over three categories of permit-related actions, and an appeal to the EAB is a prerequisite for judicial review of the permit. (Prior to 1992, appeal to the Administrator was a prerequisite for judicial review of permits issued by Regional Administrators.)

The first category consists of appeals of federal permitting decisions by Regional Administrators under the Clean Air Act (PSD, Title V, Outer Continental Shelf, and some acid rain program permits), the Safe Drinking Water Act (UIC permits), the Clean Water Act (NPDES permits) and RCRA permits. Appeals under RCRA include decisions to deny a permit for the active life of a hazardous waste management facility or unit. This category also includes appeals by of Clean Air Act permits issued by states in certain circumstances.^[1]

In the case of PSD permits, the entire process—from the determination that an application is complete to a final decision to grant or deny a permit application—must occur within one year by statutory mandate. 42 U.S.C. 7475(c); see Avenal Power Center LLC v. EPA, 787 F.Supp.2d 1 (D.D.C. 2011). Nothing in today's proposal would affect that statutory obligation.

The second category consists of appeals of Clean Air Act NSR permits issued by EPA in Indian Country. The third category consists of terminations of NPDES, RCRA and Marine Protection, Research, and Sanctuaries Act permits. Under 40 CFR 124(l), the EAB's decision and the Regional Administrator's subsequent issuance of the permit constitutes final agency action.

These permit-related functions are listed below, accompanied by the parts of the Code of Federal Regulations where they currently appear.

Appeals from NPDES permit decisions made by Regional Administrators and Administrative Law Judges under the Clean Water Act (40 CFR part 124).

Appeals from permit decisions and remedial action plan (RAP) approvals made by Regional Administrators under RCRA (40 CFR part 124; 40 CFR 270.42(f) & 270.155).

Appeals from PSD permit decisions made by Regional Administrators and delegated states under the Clean Air Act (40 CFR part 124; 40 CFR 52.21(q)).

Appeals from Title V operating permit decisions made by Regional Administrators and delegated states under the Clean Air Act (40 CFR 71.11(l)).

Appeals of Outer Continental Shelf permit decisions made by Regional Administrators (40 CFR part 124; 40 CFR 55.6(a)(3)).

Appeals from certain acid rain permitting decisions made by Regional Administrators (40 CFR 78.3(b)(1)).

Appeals from UIC permit decisions made by Regional Administrators under the Safe Drinking Water Act (40 CFR part 124).

Appeals from ocean dumping permit decisions made by Regional Administrators under the Marine Protection, Research, and Sanctuaries Act (40 CFR part 222).

Appeals from Federal Major Non-Attainment New Source Review permit decisions by Regional Administrators in Indian County under the Clean Air Act (40 CFR 49.172(d)).

Appeals from Federal Minor New Source Review permit decisions made by Regional Administrators in Indian Country under the Clean Air Act (40 CFR 49.159(d)).

Appeals from the terminations of NPDES and RCRA permits and RAPs (40 CFR 22.44).

C. What is the current process for permit appeals to the Environmental Appeals Board?

Any person who participated in the permit public participation process, either by filing comments on the draft permit or by speaking at a public hearing, may petition the EAB for review. 40 CFR 124.19(a)(2). In addition, anyone may petition the EAB for review of a permit condition that reflects changes from the draft. Id. A petition for review must be filed within thirty days after service of notice of the issuance of a permit decision and must identify the contested permit condition or other challenge to the permit decision and clearly set forth the petitioner's contentions, with appropriate support, as to why the Board should review the decision. Id. at § 124.19(a)(4). A petitioner must demonstrate that each issue raised in the petition was previously raised during the public comment period, or at a public hearing. Id. In order to prevail, a petitioner must show that each challenged permit condition is based on “[a] finding of fact or conclusion of law that is clearly erroneous” or “[a]n exercise of discretion or an important policy consideration that the Environmental Appeals Board should, in its discretion, review.” Id. § 124.19(a)(4)(i). Generally, the EPA Region—or other authority acting on EPA's behalf—that issued the permitting decision must file a response to a petition for review together with a certified index of the administrative record and relevant portions of the record within 30 days after service of the petition. Id. at § 124.19(b)(2). In the case of PSD or other new source permit appeals, the Agency has 21 days to file its response. Id. at § 124.19(b)(1). A permit applicant who did not appeal a permit decision may also file a notice of appearance and respond to a petition, as may a state or tribal authority where a permitted facility is (or is proposed to be) located. Id. § 124.19(b)(3) through (4). Any other interested person may also participate in the appeal by filing an amicus brief. Id. § 124.19(e).

Once the EAB has received a petition for review of a permit, the Clerk of the Board assigns the matter to a panel of judges using a neutral case assignment system. The EAB typically hears matters before it in three-member panels, with the fourth member of the EAB available to serve as a settlement judge in the event the parties opt to participate in the EAB's ADR program. See id. § 1.25(e)(1). The panel decides each matter before it “in accordance with applicable statutes and regulations” and considers the standard of review, prior EAB precedents, Agency policy it deems relevant, and the evidence in the record. Id. at §§ 1.25, 22.30(d), 124.19(h). When appropriate, the EAB hears oral argument on any or all issues in a proceeding. Id. at 124.19(h). The regulations specify that the EAB shall decide matters by majority vote. Id. at § 1.25. The EAB issues its opinions in writing, and the Regional Administrator's subsequent issuance of the permit consistent with the opinion constitutes final agency action.

Currently, under the EAB's ADR Program, parties to an appeal are invited to participate in ADR with the assistance of an EAB Judge acting as a neutral evaluator/mediation (referred to as the “Settlement Judge”). An EAB staff attorney (referred to as “EAB Settlement Counsel”) is often assigned to assist the Settlement Judge. Each party to the appeal must agree to participate in ADR for the case to proceed under the Program, which is often referred to as an “opt-in” ADR process. If all parties agree to proceed with ADR, an EAB Judge is assigned as the Settlement Judge, and the appeal proceedings are stayed for 60 days. The Settlement Judge contacts the parties for a status conference, followed by submission of issue summaries within 10 days of the status conference and an initial ADR meeting at which the parties begin the case evaluation/mediation process.

The ADR process may be terminated and the case returned to the EAB's active docket if: (1) The Settlement Judge, at any point following his or her designation, determines, in his or her discretion, that ADR is no longer appropriate; (2) the Settlement Judge, in his or her discretion, determines that the ADR process has not made substantial progress within the stay period; or (3) any party determines that it no longer wishes to participate in ADR. If a matter is returned to the EAB's active docket, the Settlement Judge and the EAB Settlement Counsel are prohibited from participating in any way in the EAB's resolution.

If the parties reach an acceptable resolution to all or part of their dispute, the parties must create a written agreement signed by each party. Upon execution of any agreement resolving all issues, the parties then file a joint motion to dismiss the pending matter. The EAB then issues an order dismissing the appeal. If some, but not all issues are resolved, and the issues are severable, the parties must file a motion for dismissal of the resolved issues. The EAB then issues an order returning the remaining issues to the EAB's active docket for resolution.

III. Summary of Today's Proposal

A. What are the key elements of this proposal?

1. New Time-Limited ADR Process

EPA proposes to create a new, time-limited ADR process and participation in that process would be a precondition to judicial review in federal court. Under the current regulations, an interested party must file a petition for review with the EAB as a precondition to judicial review. See 40 CFR 124.19(l). Once the appeal process has begun, parties to an appeal may “opt-in” to the EAB's ADR program to resolve the dispute without litigating the issues before a panel of EAB Judges. EPA is seeking to leverage the success of the EAB's current ADR program and empower the parties to decide for themselves the best, most efficient process to resolve their disputes.

Under this proposal, the EAB's ADR program would be switched from an opt-in process to an opt-out process conducted in compliance with the confidentiality provisions of the Administrative Dispute Resolution Act of 1996, 5 U.S.C. 574. Under the proposed process, an interested person would have thirty days after service of notice of the issuance of a permit decision to file a notice of dispute with the EAB in which the interested person identifies the contested permit condition or other specific challenge to the permit decision. The notice of dispute would also need to certify that the party filed comments on the draft permit or participated in a public hearing on the draft permit or that the disputed conditions in the final permit reflect changes from the proposed draft permit. The party filing the notice would have to serve the notice on the Regional Administrator that issued the permitting decision, the permit applicant, as well as the state or tribal authority where the permitted facility is (or is proposed to be) located. The Regional Administrator would be required to file its response to a notice within 21 days after service of the notice of dispute. A permit applicant who did not dispute a permit decision may file a notice of appearance and a response, as may the relevant state or tribal authority, within the same 21-day period.

Upon receipt of the notice of dispute, the Clerk of the EAB would assign an EAB Judge to act as the Settlement Judge. The Settlement Judge would have thirty days from the deadline for filing a response to convene a meeting of all the parties. Each party would be required to file issue summaries with the Settlement Judge no later than ten days prior to the convening meeting. At the convening meeting, each party would be required to meet with the Settlement Judge in a private session in which the Settlement Judge would provide the party with a confidential, oral assessment of the strengths and weaknesses of their case. Information discussed in the private sessions would be confidential unless a party authorizes the Settlement Judge to disclose it. At the conclusion of the convening meeting, or no later than thirty days after the deadline to file a response, the parties may decide by unanimous consent to either extend the ADR process (beyond the initial thirty-day window) or proceed with an appeal before the EAB. The Regional Administrator would not be considered a party for purposes of this unanimous agreement, meaning the Regional Administrator would not have a say in how the parties decide to proceed. EPA is proposing to make any agreement of the parties issue-specific, meaning only those issues or conditions that all parties agree to resolve via further ADR or EAB review continue through the process. However, EPA solicits comment on whether the parties' agreement should apply to all issues raised in the notice of dispute. All parties would be required to attend and participate in the convening meeting as a prerequisite to seeking judicial review in federal court. If the parties do not agree to proceed with either the ADR process or an EAB appeal, the notice of dispute would be dismissed, the permit would become final and it could be challenged in federal court. Lastly, any issues that are raised in notice of dispute process but do not continue beyond the initial thirty-day period would be preserved for appeal but may not be challenged in federal court until the remaining administrative process concludes. Again, EPA solicits comment on whether all issues raised in the notice of dispute should be required to continue through the ADR process or EAB appeal rather than only those issues or conditions that all parties agree should proceed. If promulgated, the new ADR process would apply only to any permit decision issued on or after the effective date of the procedural rule. The proposal would not apply to any current permit appeals.

2. Clarifying the EAB's Scope and Standard of Review in Permit Appeals

The current regulations establish a “clearly erroneous” standard of review and direct petitioners to demonstrate that “each challenge to the permit is based on . . . a finding of fact or conclusion of law that is clearly erroneous.” 40 CFR 124.19(a)(4)(i)(A). However, the current regulations also include a paragraph that provides that the EAB may review of an exercise of discretion “or an important policy consideration.” 40 CFR 124.19(a)(4)(i)(B). This has led to some confusion as to whether a petitioner may ask the EAB—standing in the Administrator's shoes—to address issues that a federal court generally could not review, such as whether EPA properly exercised its discretion relative to an “important policy consideration.” To the extent that 40 CFR 124.19(a)(4)(i)(B) authorizes the EAB to review EPA's compliance with discretionary policies, EPA proposes to eliminate that provision. In doing so, EPA intends to make clear that while the EAB's scope of review would no longer include exercises of discretion or important policy considerations, nothing in this proposal would alter the standard of review employed by the EAB in adjudicating permit.

3. Eliminating Amicus Curiae Participation

EPA proposes to eliminate the provision at 40 CFR 124.19(e) that authorizes interested persons to participate in a permit appeal as amicus curiae. Under today's proposal, the EAB would no longer accept amicus curiae briefs in permit appeals.

Under the current regulations, any interested person can appeal an EPA permit to the EAB; therefore, the amicus curiae process allowed the EAB to consider additional views in support of or opposition to the Region's permit. As discussed above, EPA proposes to create a new ADR process that would be a prerequisite to seeking judicial review in federal court. EPA believes that this new process would be the proper forum for parties to resolve disputes over Agency permits and that allowing for additional input in a permit appeal, should the parties choose to proceed in such a manner, is unnecessary. Moreover, eliminating amicus curiae briefs is consistent with the proposed streamlining of the EAB permit appeal process. By eliminating amicus briefs, EPA proposes to hasten the resolution of permit appeals by 15 days, see 40 CFR 124.19(e), and to simplify the process. All members of the public are encouraged to submit comments on draft EPA permits, and the Regions consider those comments when making permit decisions. This is meaningful public engagement that has the potential to shape the permit before it is appealed to the EAB. Moreover, the public comments coupled with the Region's responses become part of the permit's administrative record. EPA believes that the availability of these comments, coupled with the vigorous briefing by the permit applicant, the Region, and other parties will ensure that the EAB becomes aware of any issues or positions that might otherwise be raised by amici. Under these circumstances, the benefits of expeditious resolution of appeals outweigh any benefits associated with amici participation.

4. Eliminating Sua Sponte Review

The current regulations authorize the EAB to decide on its own initiative to review any condition of any RCRA, UIC, NPDES, or PSD permit decision for which review is otherwise available. Today's proposal would eliminate this provision. Allowing sua sponte review by the EAB would be inconsistent with the Agency's goal of empowering the parties of a permit dispute to dictate the process they believe will most effectively and efficiently resolve their dispute.

5. Expediting the Appeal Process

EPA proposes several additional changes to the appeal process that are intended to expedite resolution of appeals, should the parties choose to proceed with an EAB appeal. First, EPA proposes to establish a deadline of 60 days for the EAB to issue a final decision, measured from the date of oral argument or the filing of the last brief, whichever is later. This deadline demonstrates EPA's commitment to making permits final and effective expeditiously. It also should be achievable, in light of the EAB's reduced workload contemplated by this proposed rule.

Second, in light of the proposed 60-day deadline, EPA proposes to limit the length of EAB opinions by advising the Board to make them only as long as needed to address the specific issues raised in the appeal. EPA solicits comment on whether to set a numerical limit, either in words or pages.

In the third time-saving change, EPA proposes to revise the provisions in the current regulations relating to extensions of time to file briefs. The regulations at 40 CFR 124.19(g) authorize parties to seek such extensions. A review of motion practice before the EAB reveals that much of the delay in resolving appeals stems from frequent and lengthy extensions requested by the parties. Today's proposal would authorize each party to request a one-time 30-day extension that the EAB, in the exercise of its discretion, may choose to grant. Nothing in the proposed rule would eliminate the EAB's discretion to relax or suspend filing requirements for good cause. See 40 CFR 124.19(n).

6. 12-Year Terms for EAB Judges

The EAB is a permanent body with continuing functions established by regulation. It exercises authority expressly delegated to it from the Administrator by Title 40 of the Code of Federal Regulations. 40 CFR 1.25(e)(2). The EAB is composed of no more than four judges designated by the Administrator, 40 CFR 1.25(e)(1), but all positions need not be filled depending on the work load before the Board. By custom, EAB Judges are career employees of EPA and members of the Senior Executive Service (SES).

Over the years, the Agency has benefited from the arrival of new judges to fill vacancies created as former judges retire or move to other senior executive positions. Since 2012, eight different judges have served on the EAB, bringing with them experience from the Offices of the Regional Counsel, the Office of General Counsel, the Office of Enforcement and Compliance Assistance and other Federal agencies, including the U.S. Department of Justice. For judges joining the EAB since January 1, 2012, the average term of service is four years.

At the same time, the Agency has benefited from judges who have served on the Environmental Appeals Board for much longer terms. These judges bring deep experience in EAB jurisprudence and provide needed stability in light of frequent vacancies. Of the twelve judges who have served on the EAB since its creation in 1992, four of the first five EAB judges held their positions for nine to 21 years. One judge has served for 24 years.

In today's document, EPA proposes to set fixed twelve-year terms for EAB Judges, which the Administrator may renew at the end of that twelve-year period or reassign the Judge to another position within EPA. EPA solicits comment on whether eight-year terms are more appropriate. EPA also solicits comment on whether any other term length is more appropriate. The Administrator would apply the new twelve-year terms to the current EAB judges on a rolling basis over the next twelve years. Each seat on the EAB would be designated a number based on the seniority of the Board's current members. The seat of the longest serving judge would be designated as seat one, the second longest serving judge as seat two, the third longest serving judge as seat three, and the most recent judge as seat four. The term for the newly designated seat one would end three years after the effective date of the final rule. The process would then continue at three-year intervals, with seat two ending six years after the effective date, seat three ending nine years after the effective date, and seat four ending twelve years after the effective date. Thereafter, all terms will last for twelve years. If a judge vacates his or her position before the end of the judge's term, the Administrator would appoint a new judge to serve for the remainder of the vacated term. That new member could then be renewed at the end of the vacated term. For example, assume the term of the judge holding seat two ends in 2026, subject to renewal. Further assume that this judge retires in 2020. The new judge occupying seat two would serve for six years (until 2026) and then be eligible for a twelve-year term renewal. But assume this judge leaves after five years in 2025. The newest judge occupying seat two would serve for one year (until 2026) and then be eligible for twelve-year term renewal. There would be no limit to the number of twelve-years terms that one judge could serve. EPA also solicits comment on whether a different process for retention of EAB Judges is more appropriate.

If the Administrator chooses not to renew the appointment, the Administrator would assign that judge to another SES position within EPA for which he or she qualifies, in compliance with all applicable procedures. (As members of the SES, EAB judges are subject to reassignment to any other SES position in the Agency for which he or she qualifies, after approval from OPM and the Office of Presidential Personnel. See Guide to the Senior Executive Service, published by the Office of Personnel Management (March 2017), pages 8, 10. https://www.opm.gov/​policy-data-oversight/​senior-executive-service/​referencematerials/​guidesesservices.pdf. See also 5 U.S.C. 3131(5) (SES program shall be administered so as to enable the head of an agency to reassign senior executives to best accomplish the agency's mission).

In EPA's experience, EAB judges have left their appointments either to retire from federal service or to take another position within EPA or elsewhere. Nothing in this process would prevent a judge from leaving the EAB before the expiration of his or her twelve-year term. Similarly, nothing in this process prevents the Administrator from reassigning an EAB judge to another position prior to the expiration of his or her renewable twelve-year term.

7. Identifying Precedential EAB Decisions

EPA is soliciting comment on whether it should create a process to explicitly identify certain decisions of the EAB as precedential. Under such a process, only published decisions could be considered precedential. The determination of which decisions should be published would be determined by the Administrator acting through the General Counsel.

Other federal agencies that utilize adjudicatory hearings have similar processes for identifying precedential decisions. For instance, the Department of Homeland Security and the Department of Justice designate certain decisions as “precedent decisions” in various immigration proceedings. Under their process, “precedent decisions” are administrative decisions of the Administrative Appeals Office, the Board of Immigration Appeals (BIA), and the Attorney General, which are selected and designated as precedent by the Secretary of the Department of Homeland Security, the BIA, and the Attorney General, respectively. Identifying certain decision as precedential is important because federal courts give greater deference to such decisions. For that reason, EPA is soliciting comment on whether the Agency should affirmatively designate certain EAB decisions as precedential.

8. Administrator's Legal Interpretations

EPA proposes a new mechanism by which the Administrator, by and through the General Counsel, can issue a dispositive legal interpretation in any matter before the EAB or on any issue addressed by the EAB. This legal interpretation would be binding on the EAB. Under this proposal, the General Counsel may file written notice to the EAB providing the Administrator's legal interpretation of an applicable Agency regulation or governing statute in any matter before the EAB; this proposal is not limited just to permit appeals. This new mechanism is distinguished from legal briefs filed by EPA's Regions, which simply set forth the Agency's position on any relevant legal interpretations. The intent of this proposal is to allow the Administrator, in specific cases, to retain authority as it pertains to legal interpretations. Nothing in this proposal would limit the Administrator's existing authority (derived from his or her statutory authority to issue the permits in the first instance) to review or change any EAB decision.

9. Conforming Revisions

EPA also proposes conforming changes to regulatory text to implement the objectives described above.

B. How would today's proposal affect pending appeals?

If promulgated as proposed, today's revisions would not apply to appeals that had been filed with the EAB before the effective date of any final rule codifying such revisions.

C. Why is EPA undertaking this reform?

EPA has an almost 20-year history of promoting the expanded use of ADR to address disputes and resolve conflict. See EPA's Policy on Alternative Dispute Resolution, 65 FR 81,858 (Dec. 27, 2000). The Agency has long recognized that ADR techniques can have many benefits, including faster resolution of issues; more creative, satisfying and enduring solutions; fostering a culture of respect and trust among EPA, its stakeholders, and its employees; improving working relationships; promoting compliance with environmental laws and regulations; expanding stakeholder support for Agency programs; and promoting better environmental outcomes. Id. at 81,858-59. The EAB instituted its ADR program in 2010 in recognition of these many benefits and the success experienced by other federal agencies and by federal courts (including appellate courts) in settling contested matters through ADR. As noted above, the EAB's ADR program has been highly successful with over ninety percent of the cases that have gone through the program resolved without litigation.

EPA is seeking to build off the success of the EAB's ADR program by creating a new process that will ensure speedy resolution of disputes while providing the interested parties with options to achieve those ends. Under this proposal, the EAB's ADR program would switch to an opt-out process by requiring all parties to convene with an EAB Judge acting as a Settlement Judge. EPA believes the parties can greatly benefit from the input of the Settlement Judge's unique assessment of litigation risk, which, in the Agency's experience, carries significant weight among parties and often drives quick resolution of the issues. After receiving this valuable input from the Settlement Judge, the parties would then be empowered to decide for themselves the best, most efficient process to resolve their disputes, whether it be through further mediation, an EAB appeal or litigation in federal court.

In addition, EPA's proposals to reform the current permit appeal process go hand-in-hand with the newly proposed ADR process. By modifying and expediting the appeal process, EPA hopes to make an EAB appeal a more attractive, less time-consuming option for the parties to resolve permit disputes.

In proposing this new process, EPA recognizes that it is fundamentally changing the administrative exhaustion requirement. However, based on the changes to EAB permit reviews over time and the documented success of ADR processes, EPA ultimately believes that an ADR-focused, party-driven process will resolve disputes faster and result in better outcomes (either through ADR, streamlined Board adjudication or expedited judicial review).

Lastly, EPA is proposing several measured reforms designed to better align the Board's role with its delegated authority from the Administrator. The Administrator is given the authority to issue permits under each of the relevant statutes implicated in EPA's proposal. In creating the EAB, the Administrator delegated a portion of this authority to the Board. By providing the Administrator with tools to exercise his or her statutory authority in the first instance together with some appropriate checks and balances on how the Board exercises its delegated authority, the measures included in today's proposal are designed to better reflect how the Administrator exercises or delegates his or her permitting authority.

D. What provisions of the CFR is EPA proposing to revise?

EPA proposes to revise the following provisions of the CFR:

• 40 CFR 1.25(e) (Environmental Appeals Board).
• 40 CFR 22.44 (appeals from the terminations of NPDES and RCRA permits).
• 40 CFR part 23 (judicial review provisions).
• 40 CFR 49.159(d) (appeals from Federal Minor New Source Review permit decisions made by Regional Administrators in Indian Country under the Clean Air Act).
• 40 CFR 49.172(d) (appeals from Federal Major Non-Attainment New Source Review permit decisions by Regional Administrators in Indian County under the Clean Air Act).
• 40 CFR 52.21(q) (appeals from PSD permit decisions made by Regional Administrators and delegated states under the Clean Air Act).
• 40 CFR 55.6(a)(3) (appeals of Outer Continental Shelf permit decisions made by Regional Administrators).
• 40 CFR 71.11(l) (appeals from Title V operating permit decisions made by Regional Administrators and delegated states under the Clean Air Act).
• 40 CFR 78.3(b)(1) (appeals from certain acid rain permitting decisions made by Regional Administrators).
• 40 CFR 124.16 & 124.19 (appeals from NPDES permit decisions made by Regional Administrators and Administrative Law Judges under the Clean Water Act; appeals from permit decisions made by Regional Administrators under RCRA; appeals from PSD permit decisions made by Regional Administrators and delegated states under the Clean Air Act; appeals of Outer Continental Shelf permit decisions made by Regional Administrators; appeals from UIC permit decisions made by Regional Administrators under the Safe Drinking Water Act).
• 40 CFR part 222 (appeals from ocean dumping permit decisions made by Regional Administrators under the Marine Protection, Research, and Sanctuaries Act).
• 40 CFR 270.42(f) & 270.155 (appeals from Remedial Action Plan decisions under RCRA).

E. What regulatory text has EPA included in this proposal?

EPA has included proposed regulatory text for 40 CFR part 124 that would effectuate the proposed ADR process for most permit appeals. The Agency has provided this regulatory text to show the public how the substance of the newly proposed ADR process would be implemented. While this proposal makes clear that the proposed ADR process would apply to each of the permit decisions listed in section I.B. of this document, EPA has not included proposed conforming regulatory text for the following sections:

• 40 CFR 49.159(d) (appeals from Federal Minor New Source Review permit decisions in Indian Country under the Clean Air Act).
• 40 CFR 49.172(d) (appeals from Federal Major Non-Attainment New Source Review permit decisions in Indian County under the Clean Air Act).
• 40 CFR 52.21(q) (appeals from PSD permit decisions made by Regional Administrators and delegated states under the Clean Air Act).
• 40 CFR 55.6(a)(3) (appeals of Outer Continental Shelf permit decisions).
• 40 CFR 71.11(l) (appeals from Title V operating permit decisions made by Regional Administrators and delegated states under the Clean Air Act).
• 40 CFR 78.3(b)(1) (appeals from certain acid rain permitting decisions).
• 40 CFR part 222 (appeals from ocean dumping permit decisions under the Marine Protection, Research, and Sanctuaries Act).
• 40 CFR 270.42(f) & 270.155 (appeals from Remedial Action Plan decisions under RCRA)

EPA seeks comment on how to conform the above-cited sections with the proposed revisions to part 124. EPA could conform those sections by cross-referencing the proposed revisions in part 124 (requiring persons to file a notice of dispute under proposed § 124.19) or by drafting separate regulatory text that would create an identical ADR exhaustion process within each of those sections.

IV. Request for Comment

EPA solicits comment on all aspects of the proposed regulation and the bases articulated for it above.

Except for the proposal regarding the Administrator's legal interpretations (Section III, A.8. of this document), EPA is not soliciting comment on any functions of the EAB unrelated to permit appeals. For example, EPA is not soliciting comment on enforcement appeals or any other aspect of the EAB's work not specifically proposed today. With the exception of the proposals discussed above—for which EPA solicits comment—nothing in today's proposal would change the processes for having an appeal adjudicated by the EAB (should the parties agree to proceed with an appeal before the EAB). Therefore, EPA does not solicit comment on the unchanged aspects of the permit appeal processes.

V. 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. Executive Order 13771: Reducing Regulations and Controlling Regulatory Costs

This action is not an Executive Order 13771 regulatory action because it relates to “agency organization, management or personnel.”

C. 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.

D. 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).

E. 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.

F. 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.

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

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

H. 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 “convered 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.

I. 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.

J. National Technology Transfer and Advancement Act (NTTAA)

This rulemaking does not involve technical standards.

K. 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 Fed 7629, Feb. 16, 1994) because it does not establish an environmental health or safety standard.

List of Subjects

40 CFR Part 1

• Organization and functions (Government agencies)

40 CFR Part 22

• Administrative practice and procedure
• Air pollution control
• Hazardous substances
• Hazardous waste
• Penalties
• Pesticides and pests
• Noise prevention
• Water pollution control

40 CFR Part 23

• Administrative practice and procedure
• Air pollution control
• Courts
• Hazardous substances
• Hazardous waste
• Pesticides and pests
• Radiation protection
• Water pollution control
• Water supply

40 CFR Part 49

• Administrative practice and procedure
• Air pollution control
• Indians
• Intergovernmental relations
• Reporting and Recordkeeping requirements

40 CFR part 52

• Administrative practice and procedure
• Air pollution control
• Ammonia
• Carbon monoxide
• Environmental protection
• Greenhouse gases
• Incorporation by reference
• Intergovernmental relations
• Lead
• Nitrogen dioxide
• Nitrogen oxides
• Ozone
• Reporting and recordkeeping requirements
• Sulfur oxides
• Volatile organic compounds

40 CFR Part 55

• Administrative practice and procedure
• Air pollution control
• Continental shelf
• Intergovernmental relations
• Nitrogen dioxide
• Ozone
• Reporting and recordkeeping requirements
• Sulfur oxides

40 CFR Part 71

• Administrative practice and procedure
• Air pollution control
• Reporting and recordkeeping requirements

40 CFR Part 78

• Acid rain
• Administrative practice and procedure
• Air pollution control
• Electric utilities
• Nitrogen oxides
• Reporting and recordkeeping requirements
• Sulfur oxides

40 CFR Part 124

• Administrative practice and procedures
• Air pollution control
• Hazardous waste
• Indians-lands
• Reporting and recordkeeping requirements
• Water pollution control
• Water supply

40 CFR Part 222

• Administrative practice and procedures
• Water pollution control

For the reasons set forth in the preamble, EPA proposes to revise 40 CFR parts 1, 22, 23, 49, 52, 55, 71, 78, 124, and 222 as follows:

PART 1—STATEMENT OF ORGANIZATION AND GENERAL INFORMATION

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

Authority: 5 U.S.C 552.

2. Amend § 1.25 by revising paragraph (e)(2) and adding paragraph (e)(4) to read as follows:

PART 124—PROCEDURES FOR DECISIONMAKING

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.

Subpart A—General Program Requirements

4. Amend § 124.16 by revising the first sentences of paragraphs (a)(1) and (a)(2)(ii), and by revising paragraph (b)(1) to read as follows:

5. Revise § 124.19 to read as follows:

6. Revise § 124.20 to read as follows:

7. Revise § 124.20 to read as follows:

Footnotes