Frequently Asked Questions Concerning Part 124.19
1. When does the rule become effective?
2. Is the revised rule applicable to current permit appeals?
3. Where can I find a copy of text of the new regulation?
4. What procedures does the rule incorporate?
8. Where can I find out what permit appeals have been filed with the EAB?
9. What is a Petitioner required to include in a Petition?
10. Will there be a second opportunity to present the merits of a case after the Board grants review of a petition?
11. Where can I find the standing orders applicable to my permit appeal?
12. Where can I find additional guidance on filing an appeal with the EAB?
(1) When does the rule become effective?
- The rule revision becomes effective 60 days after promulgation, on March 26, 2013.
(2) Is the revised rule applicable to current permit appeals?
- All documents filed with the Board on or after the effective date of the rule, March 26, 2013, are subject to the revision.
(3) Where can I find a copy of text of the new regulation?
- The text of the rule is available on the Board’s Regulations Governing EAB Appeals Web page.
(4) What procedures does the rule incorporate?
- The significant changes to the regulatory text of the revised rule fall into two categories. First, the language of the rule is amended to clarify that substantive briefing occurs at the outset of the appeal and the Board considers the merits of the appeal based on the initial petition and responses. The changes reconcile current provisions of 124.19, which over time have proven to be somewhat confusing and redundant, and allow the regulation to more fully reflect existing Board practice.
Second, the rule incorporates provisions that the Board's standing orders and Practice Manual currently provide. Adding these provisions clarifies review procedures for practitioners before the Environmental Appeals Board, which will simplify and make more efficient the review process in all permit appeals filed with the Board under this section.
For example, the rule requires Petitioners to notify the permit applicant (if not the petitioner) and the permit issuer when a petition is filed. The rule also allows for e-filing, sets deadlines for responses to the petition, includes provisions governing non-party participation, and incorporates word limits and other formatting requirements.
Additional information may be found in the Fact Sheet, the Preamble to the Rule, and in the Board’s guidance documents.
Back to Top
(5) Why did the EPA revise the rule?
- EPA revised the rule to simplify and make more efficient the review process for permit appeals filed with the EAB. The revised rule incorporates existing EAB practices that are reflected in a number of standing EAB orders and decisions governing EAB procedures, and clarifies practices and procedures in permit appeals before the EAB.
(6) Who must a Petitioner serve?
- 40 C.F.R. § 124.19(i)(3) describes the service requirements. The petitioner must serve (i.e., provide a copy of) the petition on the Regional Administrator and the permit applicant, if the applicant is not the petitioner. Once an appeal is docketed with the Board, every document that is filed with the Board must be served on all other parties.
(7) Can I participate in a permit appeal if I am not the petitioner or the permit applicant?
- Yes. 40 C.F.R. § 124.19(e) describes how and when any interested party may file a brief in a pending appeal as a “friend of the court,” or amicus curiae. A State or Tribal authority where the permitted facility or site is or is proposed to be located also may participate, pursuant to 40 C.F.R. § 124.19(b)(4).
(8) Where can I find out what permit appeals have been filed with the EAB?Back to Top
(9) What is a Petitioner required to demonstrate in the Petition for Review?
- A petition for review must demonstrate that review is warranted. Thus, Petitioners must identify the contested permit condition or other specific challenge to the permit decision and set forth petitioner’s contentions for why the permit decision should be reviewed. Each challenge to the permit decision must be based on: (i) a finding of fact or conclusion of law that is clearly erroneous, or (ii) an exercise of discretion or an important policy consideration that the Environmental Appeals Board should, in its discretion, review.
- 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 40 CFR § 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 40 CFR § 124.13. Additionally, if the petition raises an issue that the Regional Administrator addressed in the response to comments document issued pursuant to 40 CFR. § 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. The changes to 40 C.F.R. § 124.19 clarify these important threshold content requirements for obtaining review, which had previously been required by Board case law.
(10) Will there be a second opportunity to present the merits of a case after the Board grants review of a petition?
- Not typically. 40 C.F.R. § 124.19 previously contained language that contemplated a second substantive briefing period after the Board granted review. 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 based on the substantive briefs that are required to be filed at the outset. The revised rule reconciles the provisions of § 124.19, which over time have proven to be somewhat confusing and redundant, and allow the regulation to reflect more fully existing Board practice. Thus, the rule clarifies to practitioners that substantive briefing must be submitted at the outset of the appeal. Under the revised rule, the Board on occasion may request additional briefing in a particular case.
(11) Where can I find the standing orders applicable to my permit appeal?
- The Board’s standing orders are available at the Standing Orders section of the EAB Web page.
(12) Where can I find additional guidance on filing an appeal with the EAB?
- Additional guidance on filing an appeal with EAB may be found in the documents located in the Guidance Documents section of the EAB Web page.