EPA Environmental Appeals Board| US EPA

Frequently Asked Questions

The Environmental Appeals Board in General

Procedures Governing Cases Appealed to the Environmental Appeals Board

Format Requirements for Documents

Filing Documents with the Environmental Appeals Board

Oral Arguments

Environmental Appeals Board Decisions

Alternative Dispute Resolution (ADR)

The Environmental Appeals Board in General

1. What is the Environmental Appeals Board?

2. How can I contact the Board?

3. What environmental laws does the EAB consider?

4. How does the Board prioritize its case load?

5. How does the EAB make decisions?

6. Who are the members of the Board?

7. Who are the Counsel to the Board?

8. Who serves as Staff to the Board?

9. How can I review Board decisions and case filings?

10. Can I obtain copies of documents from the Board?

11. Whom may I contact if I have additional questions that have not been answered here?

Procedures Governing Cases Appealed to the Environmental Appeals Board

12. Where can I find additional information about the Board?

13. What are the procedural rules that govern appeals to the EAB from a permit decision?

14. What are the procedural rules that govern appeals to the EAB in Agency enforcement proceedings?

15. What are the procedural rules that govern a claim submitted to the EAB pursuant to section 106(b) of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) for reimbursement of cleanup costs incurred in complying with an EPA cleanup order?

16. If a party to a Board proceeding obtains or changes counsel during the pendency of the proceeding, should the (new) counsel file a notice of appearance? Also, what if a party, counsel, or another person involved in a Board proceeding has a change of address or other contact information?

17. May I seek reconsideration of the Board’s decision?

18. What is the procedure for withdrawing a petition that has been filed with the Board?

Format Requirements for Documents

19. What are the form and content requirements for a petition for review or a notice of appeal and appellate brief?

20. What are the form requirements for attachments?

21. What are the steps that typically occur in a permit or enforcement appeal to the EAB?

22. How should I cite EAB and pre-EAB opinions in filings to the EAB?

Filing Documents with the Environmental Appeals Board

23. How should I file a pleading in a matter before the Board?

24. Is electronic filing available?

25. Is there a fee for filing a petition or an appeal with the EAB?

26. How many copies of each filing and each attachment must I file?

27. Is a pleading timely if it is postmarked by the specified filing date or must it be actually received by the Board by the filing date?

28. May I file a petition for review or notice of appeal and appellate brief with the EAB by facsimile (fax machine)?

29. May I file a motion or a response to a motion with the EAB by facsimile (fax machine)?

30. If I send documents or correspondence to the Board by a commercial delivery service, where should I send them?

31. May I electronically file documents containing confidential business information ("CBI") or other private information?

32. How do I file attachments to a brief through the Board’s e-Filing System?

33. How do I sign documents that I electronically file?

34. What if I need technical assistance or experience technical difficulties when electronically filing documents?

35. Are there specific requirements for the filing and service of documents?

Oral Arguments

36. Does a party to an appeal have a right to obtain an oral argument before the Board?

37. May I attend an oral argument before the Board and where can I find the schedule of arguments?

Environmental Appeals Board Decisions

38. Where can I find prior opinions of the Environmental Appeals Board?

39. Can parties request expedited consideration of a matter?

Alternative Dispute Resolution (ADR)

40. Does the Board have an Alternative Dispute Resolution program?

41. Where can I find out more information about the EAB's ADR program?

(1) What is the Environmental Appeals Board?

Established by regulation in 1992, the Environmental Appeals Board (often referred to as “EAB” or “the Board”) is an impartial appellate tribunal within the U.S. Environmental Protection Agency (“EPA”) that resolves administrative appeals of certain environmental disputes arising under the major environmental statutes that EPA administers. The EPA Administrator has delegated to the Board the authority to hear these appeals. The Board is independent of all Agency components outside the immediate office of the Office of the Administrator.

Most of the matters that come to the Board involve appeals of federal environmental permitting decisions and administrative civil penalty decisions. The Board hears permit challenges where EPA serves as the permitting authority. The Board also hears challenges to permitting decisions made by a state, local, or tribal authority where that authority is acting on EPA’s behalf as its delegate under federal law to issue federal environmental permits. Appeals of permitting decisions may be filed either by permit applicants or other interested persons. Permit appeals are governed primarily by procedural regulations at 40 C.F.R. part 124. Appeals of civil penalty decisions made by EPA’s administrative law judges may be filed, as a matter of right, either by private parties or by EPA. Penalty appeals are governed primarily by procedural regulations at 40 C.F.R. part 22.

The EAB’s caseload also includes petitions for reimbursement of costs incurred in complying with cleanup orders issued under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980. The EAB decides these matters pursuant to a delegation of authority from the Administrator. See Order on Procedures for Petitions for Reimbursement Submitted Under Section 106(b)(2)(A) of the Comprehensive Environmental, Response, Compensation, and Liability Act of 1980, 42 U.S.C. § 9606(b)(2)(A) (EAB July 7, 2020) (available on the EAB website,

www.epa.gov/eab

, under “Standing Orders & Procedures”). Please also see “Guide to the U.S. Environmental Protection Agency’s Environmental Appeals Board,” available on the Board’s website, for an overview of the types of matters that the Board hears.

(2) How can I contact the Board?

The Board's telephone number is

(202) 233-0122.

The Board's fax number is (202) 233-0121.

Clerk of the Board email: Clerk_EAB@epa.gov

(3) What environmental laws does the EAB consider?

The EAB hears appeals and other matters that involve the major environmental statutes that EPA administers, including:

Act to Prevent Pollution from Ships;
Clean Air Act;
Federal Water Pollution Control Act (also known as the Clean Water Act);
Comprehensive Environmental Response, Compensation, and Liability Act;
Emergency Planning and Community Right-to-Know Act;
Federal Insecticide, Fungicide, and Rodenticide Act;
Marine Protection, Research, and Sanctuaries Act;
Resource Conservation and Recovery Act (which amended the Solid Waste Disposal Act);
Safe Drinking Water Act; and
Toxic Substances Control Act.

(4) How does the Board prioritize its case load?

Cases are generally prioritized by the Board based on the filing date of the case. Cases involving new source permits, such as those under the Clean Air Act’s Prevention of Significant Deterioration program, are assigned the highest priority relative to other categories of cases.

(5) How does the EAB make decisions?

The EAB generally sits in panels of three Environmental Appeals Judges, and the panel decides each matter by majority vote. Under the regulations at 40 C.F.R. section 1.25(e), due to absence or recusal, a panel can consist of two EAB judges. Concurring or dissenting opinions may be issued as appropriate.

The Board evaluates each case based on the administrative record and written briefs submitted by the parties and other interested persons. The Board may also hold oral argument, either at the request of any party or on its own initiative. Oral arguments are open to the public.

(6) Who are the members of the Board?

The EAB currently consists of Environmental Appeals Judges:

Judge Aaron P. Avila

Judge Avila has substantial litigation and management experience in matters arising under federal pollution control and natural resource statutes. Prior to joining the Board, Judge Avila served first as a staff attorney and then as an Assistant Section Chief in the Appellate Section, Environment and Natural Resources Division, U.S. Department of Justice. During his tenure in the Appellate Section, Judge Avila litigated and supervised civil and criminal appellate matters involving major federal environmental and pollution control statutes before the courts of appeals and the Supreme Court on behalf of the United States and its agencies (primarily EPA, the Department of Energy, and the Department of Defense). Judge Avila presented oral argument in more than 30 appeals. Prior to joining the Justice Department, Judge Avila was an associate at Morrison & Foerster LLP in San Francisco, California and before that he served as a judicial law clerk for the Honorable Robert D. Sack of the U.S. Court of Appeals for the Second Circuit.

Judge Avila’s work has garnered him numerous awards and recognitions, including the Assistant Attorney General’s Award for Excellence and EPA's Silver Medal for Superior Service Award.

Judge Avila earned his Juris Doctor degree, magna cum laude, Order of the Coif, from New York University School of Law, and his Bachelor of Arts and Science degree (Political Science and Civil Engineering) from Stanford University.

Judge Wendy L. Blake

Judge Blake has extensive litigation experience both at EPA and the U.S. Department of Justice in administrative law matters and matters arising under the federal pollution control statutes. She also has substantial management experience, including serving as the Associate General Counsel for the General Law Office and the Assistant General Counsel for the Air and Radiation Law Office in EPA’s Office of General Counsel. In these capacities, she managed large teams of attorneys and professional staff and led the Agency’s participation in matters before the Supreme Court, federal appellate courts, and district courts. She also has substantial rulemaking and alternative dispute resolution experience. Most recently, as the Associate General Counsel for the General Law Office, she supervised the Agency’s Conflict Prevention and Resolution Center which provides alternative dispute resolution and conflict resolution services to the Agency. Prior to joining the Department of Justice, she served as a judicial law clerk for former Judge Christine Miller of the United States Court of Federal Claims.

Judge Blake’s work has garnered her numerous awards and recognitions, including Gold and Bronze medals and the Agency’s First-Line Supervisor Award.

Judge Blake earned her Juris Doctor degree, with distinction, from George Mason University School of Law, where she focused extensively on moot court and won several awards. She received her Bachelor of Arts degree from the University of Virginia in Economics.

Judge Mary Kay Lynch

Judge Lynch has extensive litigation and management experience in both the private and public sector. She has served in a number of senior legal and management positions within the EPA, most recently as the Associate General Counsel for Solid Waste and Emergency Response leading the Agency’s participation in Supreme Court, federal Appellate Court and federal rule making practice in these subject areas. Prior to that she served as Regional Counsel for EPA Region 4 in Atlanta, Georgia. There she led a large interdisciplinary staff including attorneys and engineers to provide legal counsel for civil and criminal enforcement cases, defensive litigation, counseling issues, and general law matters. Earlier in her EPA career she served in EPA’s Office of Enforcement and Compliance Assurance, first in the Federal Facilities Office as Director of the Site Remediation and Enforcement Staff and later as Director of OECA's Policy Office. Judge Lynch has served as the Vice Chair of the Deepwater Horizon Natural Resource Damage Trustee Council where she has advised on complex and unprecedented issues. Prior to joining EPA, she was engaged in private law practice.

Judge Lynch's work has been recognized with numerous awards including the Meritorious Presidential Rank Award, the EPA Excellence in Management Award and EPA Gold and Silver Medals. She earned a Juris Doctor degree, from the University of Georgia School of Law, where she served as the Executive Editor of the Georgia Journal of International and Comparative Law. She earned a Bachelor of Arts, magna cum laude, from Boston College and was part of the Scholars of the College program.

(7) Who are the Counsel to the Board?

Experienced attorneys serve as counsel to the Board: Nivea Berrios, Patrick Chang, Kristen DeWire, Catherine Malinin Dunn, Carly Hopkins, and Grant Macintyre. Counsel assist the Board in reviewing the administrative record, analyzing applicable law and Agency policy, and preparing formal written opinions. They are available to answer questions from litigants and the general public about the appeals process.

(8) Who serves as Staff to the Board?

The Clerk of the Board is Emilio Cortes. Annette Duncan serves as the Board's Administrative Specialist.

(9) How can I review Board decisions and case filings?

Final decisions of the Board, along with significant interim orders, are available on the Board’s website at

www.epa.gov/eab

under “Board Decisions.” Many Board decisions are also published in bound volumes entitled “Environmental Administrative Decisions” or “E.A.D,” and these are generally available at designated Federal Depository Libraries. Filings for each active docket, as well as dockets for cases closed since January 1, 2006, are accessible through the “EAB Dockets” link on the Board’s website. Finally, Board decisions are available through commonly used legal databases.

(10) Can I obtain copies of documents from the Board?

As noted above, final decisions of the Board, along with significant interim orders, are available online at

www.epa.gov/eab

under “Board Decisions.” Further, filings for each active docket, as well as dockets for cases closed since January 1, 2006, are accessible through the “EAB Dockets” link on the Board’s website.

(11) Whom may I contact if I have additional questions that have not been answered here?

The Clerk of the Board is available to answer general questions about the appeal process and the Board's procedures. The Clerk of the Board can be reached via email at

Clerk_EAB@epa.gov

or by phone at (202) 233-0122.

(12) Where can I find additional information about the Board?

Additional information about the EAB can be found in the “Guide to the U.S. Environmental Protection Agency’s Environmental Appeals Board,” available on the Board’s website under the “EAB Practice Document” link.

(13) What are the procedural rules that govern appeals to the EAB from a permit decision?

Agency regulations at 40 C.F.R. part 124 subpart A, and in particular 40 C.F.R. section 124.19, contain procedures for appealing permit decisions under the following programs:

Resource Conservation and Recovery Act;
Clean Air Act Prevention of Significant Deterioration;
Safe Drinking Water Act Underground Injection Control; and
Clean Water Act National Pollutant Discharge Elimination System.

Procedures for appeals from permits issued under the Clean Air Act’s acid rain program are set forth at 40 C.F.R. part 78. Procedures for appeals from Clean Air Act Title V operating permits are set forth at 40 C.F.R. part 71.

The Board’s

Standing Orders

may set forth additional procedural requirements for appeals of permit decisions.

(14) What are the procedural rules that govern appeals in Agency enforcement proceedings?

The procedural rules governing Agency enforcement proceedings are set forth at 40 C.F.R. part 22.

The Board’s

Standing Orders

may set forth additional procedural requirements for enforcement proceedings.

(15) What are the procedural rules that govern a claim submitted to the EAB pursuant to section 106(b) of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) for reimbursement of cleanup costs incurred in complying with an EPA cleanup order?

The Board has issued a Standing Order regarding CERLCA section 106(b) petitions for reimbursement, and that order incorporates the four prerequisites under CERCLA section 106(b) required for the Board to consider the petition. See Order on Procedures for Petitions for Reimbursement Submitted Under Section 106(b)(2)(A) of the Comprehensive Environmental, Response, Compensation, and Liability Act of 1980, 42 U.S.C. § 9606(b)(2)(A) (EAB July 7, 2020) (available on the EAB website,

www.epa.gov/eab

, under “Standing Orders & Procedures”). Those prerequisites are that the party filing the petition for reimbursement: (1) demonstrate, with supporting evidence, that it complied with the cleanup order issued under CERCLA section 106(a), (2) demonstrate, with supporting evidence, that it completed the action required by the cleanup order, (3) document that it incurred costs in complying with the requirements of the cleanup order and what those costs were, and (4) timely submit the petition for reimbursement to the EAB. As to the fourth prerequisite, which concerns the timely submission of the petition for reimbursement, the statute requires the party seeking reimbursement to file the petition “within 60 days after completion of the required action.” The Board’s Standing Order also includes the EAB filing and service procedures and deadlines. There are no regulations governing CERCLA section 106(b) reimbursement petitions.

(16) If a party to a Board proceeding obtains or changes counsel during the pendency of the proceeding, should the (new) counsel file a notice of appearance? Also, what if a party, counsel, or another person involved in a Board proceeding has a change of address or other contact information?

If a party obtains or changes counsel during the pendency of a Board proceeding, the (new) counsel should file a notice of appearance with the Board and serve copies on all other parties. If the contact information for any party, counsel, or other interested person involved in a Board proceeding changes during the pendency of the proceeding, that person should promptly file a notice identifying the change in contact information with the Board and serve copies on all other parties.

(17) May I seek reconsideration of the Board’s decision?

Yes. Once the EAB issues a final order in a matter, EPA regulations at 40 C.F.R. parts 22 and 124 provide that any party to the appeal can file a motion for reconsideration within 10 days of the EAB’s service of the order on the parties. Under those regulations, a motion for reconsideration of a final order must set forth the matters that the party believes the EAB erroneously decided as well as the nature of those errors. For certain appeals, including permit appeals governed by 40 C.F.R. part 124, parties can also file motions for clarification, which must identify the portion of the decision for which clarification is sought and explain why a clarification is necessary. Although the Part 22 regulations do not specifically address motions for clarification, a party could reasonably assert in a motion for reconsideration that a portion of the final order is not clear and explain why a clarification is needed.

(18) What is the procedure for withdrawing a petition that has been filed with the Board?

The petitioner may file a motion requesting that the Board dismiss the petition. The motion must briefly state the reason for the request.

(19) What are the form and content requirements for a petition for review or a notice of appeal and appellate brief?

EPA’s regulations and the Board’s Standing Orders set forth the procedures for filing an appeal or other matter with the Board. For most permit appeals, the rules governing appeals to the EAB are found in 40 C.F.R. part 124. For most administrative enforcement appeals, the regulations are found in 40 C.F.R. part 22 and are commonly known as the “Consolidated Rules of Procedure,” or “CROP.” These regulations can be found under the link “Regulations Governing Appeals” on the EAB website. The Board’s Standing Orders govern practice before the Board and are available on the Board’s website,

www.epa.gov/eab

. Additional information about participating in an appeal before the EAB can be found in the “Guide to the U.S. Environmental Protection Agency’s Environmental Appeals Board,” available under the “EAB Practice Document” link on the EAB website. The Appendix to the Guide provides sample templates for documents that are routinely filed with the Board.

a. Petitions for review of permitting decisions under 40 C.F.R. section 124.19

Section 124.19 of the regulations is a critical provision, as it sets forth who can file a petition for review challenging a permitting decision, when the petition must be filed, the required form and content of the petition, and what additional briefs can be filed.

Under 40 C.F.R. section 124.19(i)(1), a petition for review must contain a caption that indicates the name of the permit applicant, the permitted facility, and the permit number.

The regulations at 40 C.F.R. section 124.19(d)(1) also require that the petition for review meet the page limitations described in 40 C.F.R. section 124.19(d)(3) and contain, under appropriate headings:

A table of contents, with page references;
A table of authorities with references to the pages of the brief where they are cited;
A table of attachments, if attachments are included; and
A statement of compliance with the word limitation.

Section 124.19(a)(4) requires the Petitioner to provide legal and factual support for their position as to why the permitting decision should be reviewed. Section 124.19(a)(4) also requires that the petition for review demonstrate why the factual or legal basis underlying the challenged provisions is clearly erroneous, or why the permitting decision constitutes an abuse of discretion warranting Board review. Further, section 124.19(a)(4) requires that where the permit issuer responded to an issue in the response to comments document, the petition must explain why the permit issuer’s response to the comment was clearly erroneous or otherwise warrants review. See also “Guide to the U.S. Environmental Protection Agency’s Environmental Appeals Board,” available under the “EAB Practice Document” link on the EAB website.

b. Notice of appeal and appellate brief under 40 C.F.R. part 22

Section 22.30 of the regulations is another critical provision, as it sets forth who can file a notice of appeal and appellate brief in enforcement appeals to the Board, when that notice of appeal and appellate brief are to be filed, the required form and content of the notice of appeal and appellate brief, and what additional briefs can be filed.

Under 40 C.F.R. section 22.5(c), notices of appeal must include a caption that identifies the respondent and the docket number. Consistent with section 22.30(a), the appellate brief must contain a table of contents and authorities with appropriate page references and include a statement of compliance with the word limitation. Section 22.30(a) further provides that if attachments are appended, the notice of appeal or appellate brief shall contain a table that lists the title of each appended document and indicates where the document can be found in the record.

Finally, section 22.30(a) requires that the notice of appeal identify the Initial Decision, or part of the Initial Decision, being appealed and that the appellate brief should, among other things, summarize the issues on appeal, provide argument on those issues, and identify the specific relief sought from the EAB. See also “Guide to the U.S. Environmental Protection Agency’s Environmental Appeals Board,” available under the “EAB Practice Document” link on the EAB website.

c. Other filings that commence a proceeding before the Board, including CERCLA section 106(b) reimbursement petitions and petitions for review of permit decisions under 40 C.F.R. part 71

If you are considering filing a petition for reimbursement with the Board, please refer to the EAB’s Order on Procedures for Petitions for Reimbursement Submitted Under Section 106(b)(2)(A) of the Comprehensive Environmental, Response, Compensation, and Liability Act of 1980, 42 U.S.C. § 9606(b)(2)(A) (EAB July 7, 2020) (available on the EAB website under “Standing Orders & Procedures”). The Standing Order sets forth the four statutory prerequisites for obtaining review of a reimbursement petition. The Board has developed procedures governing the submission and review of petitions for reimbursement, and those procedures are also set forth in Appendix A to the Standing Order. Among other things, the Order requires that the petition for reimbursement contain the petitioner’s full name, title and contact information, together with the name and contact information for any agent or attorney authorized to represent petitioner; the name and address of the facility where the response action was implemented; and the docket number for the EPA-issued CERCLA section 106(a) administrative order and a copy of the order.

A petition for review under part 71 must contain a caption that indicates the name of the permit applicant, the permitted facility, and the permit number as required by 40 C.F.R. sections 71.27(

)(1). Please refer to the regulations at 40 C.F.R. part 71 for the relevant requirements.

For registration-related appeals under the Federal Insecticide, Fungicide, and Rodenticide Act, please refer to the Board’s Standing Order and the relevant regulations. See Order Governing Procedures for Registration-Related Appeals Under the Federal Insecticide, Fungicide, and Rodenticide Act (EAB July 8, 2022) (available on the EAB website under “Standing Orders & Procedures”).

(20) What are the form requirements for attachments?

a. Attachments supporting briefs in appeals of permit decisions under 40 C.F.R. section 124.19

If the petition for review, response brief, or reply brief includes attachments, under the regulations at 40 C.F.R. part 124, a table must be included that provides the title of each appended document and an indication of where the appended document can be found in the record.

b. Attachments supporting briefs in an enforcement appeal under 40 C.F.R. part 22

Section 22.30(a)(1)(iii) provides that if attachments are appended, the notice of appeal or appellate brief shall contain a table that lists the title of each appended document and indicates where the document can be found in the record.

(21) What are the steps that typically occur in a permit or enforcement appeal to the EAB?

Information about the steps that typically occur in administrative permit and enforcement appeals, the Board’s two most common types of appeals, can be found in the “Guide to the U.S. Environmental Protection Agency’s Environmental Appeals Board,” available under the “EAB Practice Document” link on the EAB website.

(22) How should I cite EAB and pre-EAB opinions in filings to the EAB?

The Board has adopted official forms of citation for the published opinions of the EAB and for published decisions issued by other Agency decisionmakers before the Board was created in 1992. The form of citation for EAB and pre-EAB decisions indicates the volume and page of the Environmental Administrative Decisions (“E.A.D.”) where the opinion appears, the decisionmaker, and the year of the decision. An example of a citation to an EAB opinion published in Volume 4 of the E.A.D. is as follows:

In re Amoco Oil Co.,

4 E.A.D. 954 (EAB 1993).

An example of a citation to a specific page of that opinion is as follows:

In re Amoco Oil Co.,

4 E.A.D. 954, 956 (EAB 1993).

Examples of citations to pre-Board opinions that were published in Volumes 1 through 3 of the E.A.D., and that were issued by the Chief Judicial Officer or the Administrator, are:

In re Boliden-Metech, Inc.,

3 E.A.D. 439 (CJO 1990).

In re Cecos International, Inc.,

3 E.A.D. 77 (Adm’r 1990).

The Board initially publishes its final decisions as slip opinions before publication in the E.A.D. Citations to slip opinions include the date the decision was issued and take the following form:

In re Beeland Group, LLC,

UIC Appeal Nos. 08-01, 08-02, & 08-03 (EAB Oct. 3, 2008), 13 E.A.D. __.

An example of a citation to a specific page of the above opinion is as follows:

In re Beeland Group, LLC,

UIC Appeal Nos. 08-01, 08-02, & 08-03, slip op. at 3 (EAB Oct. 3, 2008), 13 E.A.D. __.

(23) How should I file a pleading in a matter before the Board?

All parties and other interested persons are encouraged to file documents with the Board using the EAB’s Electronic Filing System (“e-Filing System”) which is accessible on the Board’s website. Filing documents on paper (via U.S. mail, hand delivery, or via courier or commercial delivery service) is also permissible.

a. Electronic Filing

The Board’s e-Filing System is accessible on its website at

www.epa.gov/eab

. Instructions for using the e-Filing System are available on the Board’s website under the “Electronic Filing” link. Pursuant to the Board’s Standing Orders Authorizing Electronic Filing (available on the Board’s website under “Standing Orders and Procedures”), the use of the e-Filing System fulfills the signature requirements imposed by applicable regulations. Further, registration is required to use the e-Filing System, and anyone planning to use the system is advised to allow sufficient time for registration. Questions regarding use of the e-Filing system may be directed to the Clerk of the Board by email at

Clerk_EAB@epa.gov

or phone at 202-233-0122.

Under the Board’s Standing Orders Authorizing Electronic Filing, documents filed electronically are deemed timely if the electronic receipt shows that the document was received by 11:59 p.m. Eastern Time on the day the document is required to be filed with the Board.

As explained on the Board’s website at the “Electronic Filing” link, confidential business information (“CBI”) should not be submitted through the Board’s e-Filing System, as information uploaded to that system will be available to the public online. Additionally, filers may not upload other private information the disclosure of which would constitute an unwarranted invasion of any person’s privacy (for example: social security numbers, birthdates, medical records, personal financial information or other private information). For information on how to file confidential business information or other private information, please visit the “Electronic Filing” link on the EAB website or contact the Clerk of the Board at

Clerk_EAB@epa.gov

or by phone at 202-233-0122.

b. Paper Filing

Any envelope or other packaging containing documents sent to the EAB’s

mailing address

hand-delivery address

should bear a complete and accurate return address in the upper left-hand corner. The envelope or packaging also should state clearly the case name and case identifier in the lower left-hand corner.

In all instances, if an appeal already has been filed with the Clerk of the Board, the case name and case identifier are the name and appeal number assigned to the matter by the Clerk.

If an appeal or petition has not yet been filed,

please provide the following case identifying information on the envelope or packaging:

For a permit appeal,

state the name of the permittee or facility and the permit number (e.g., NPDES Permit No. ID-0000-00).

For an appeal of an enforcement decision,

state the name of the non-EPA party and the docket number (e.g., Dkt. No. CWA-02-0000) of the proceeding below.

For a petition for reimbursement of cleanup costs pursuant to CERCLA section 106(b),

state the name of the clean-up site.

If a document being filed contains Confidential Business Information (“CBI”) or material claimed as CBI,

such document should be sent to the Clerk of the Board by U.S. mail, commercial delivery service, or hand delivery. Do not transmit documents containing CBI or claimed as CBI by interoffice mail. At a minimum, any document(s) containing CBI or claimed as CBI should be placed in a separate envelope labelled “This Envelope Contains Confidential Business Information (CBI) and/or Material Claimed as CBI to be opened by the Clerk of the Board only,” with the case identifying information printed in the lower right-hand corner. (Please note that in some instances, parties may need to take additional measures to protect CBI or material claimed as CBI, if required by applicable statute, regulation, or agency directive.) If possible, please also place a stamp, watermark, or other prominent written notation on the first page and the back of the last page of the document(s) that states: “This Document Contains Confidential Business Information (CBI) and/or Material Claimed as CBI.”

If multiple attachments are submitted in hard copy, at least one complete set of attachments should be rubber banded or clipped together, not spiral or “comb” bound.

i. EAB Mailing Address

All documents that are sent through the U.S. Postal Service (except by Express Mail) are to be addressed to the EAB’s mailing address.

Clerk of the Board

U.S. Environmental Protection Agency

Environmental Appeals Board

1200 Pennsylvania Avenue, N.W.

Mail Code 1103M

Washington, D.C. 20460-0001

Documents that are sent to the EAB’s

hand-delivery address

(below) through the U.S. Postal Service (except by Express Mail) will be returned to the sender and shall not be considered as filed. Express Mail is hand-delivered by the U.S. Postal Service and must be delivered as outlined in

subpart ii

, below.

ii. Hand-Delivery Address

Documents that are hand-carried, delivered via courier, mailed by Express Mail, or delivered by a non-U.S. Postal Service commercial delivery service are to be sent to the EAB’s hand-delivery address.

Clerk of the Board

U.S. Environmental Protection Agency

Environmental Appeals Board

1201 Constitution Avenue, N.W.

WJC East Building, Room 3332

Washington, D.C. 20004

Please include the Board’s phone number, (202) 233-0122, for all hand-delivered documents.

Under EPA regulations at 40 C.F.R. parts 22 and 124, a document is filed with the Board when it is received by the Clerk of the Board at the address specified for the particular method of delivery. Thus, if a document is sent to the Board’s mailing address, it is considered filed when the Clerk receives the document at the mailing address noted above, and if a document is sent to the Board’s hand-delivery address, it is considered filed when the Clerk receives the document at the Board’s hand-delivery address noted above.

(24) Is electronic filing available?

Yes. The Board encourages all parties to utilize the Environmental Appeal Board’s Electronic Filing System (“e-Filing System”) accessible on the Board’s website at

www.epa.gov/eab

under the “Electronic Filing” link.

(25) Is there a fee for filing a petition or an appeal with the EAB?

No.

(26) How many copies of each filing and each attachment must I file?

a. Electronic Filing

To the extent that the regulations governing your appeal require that multiple copies of a document be filed, electronically filing one copy of that document is deemed to satisfy that requirement.

Note:

The EAB has suspended its requirement to submit an identical paper copy of any electronically filed document that is longer than 50 pages within one business day.

b. Hard Copy Filing

The Board requests one original and two copies of any document filed in hard copy. At least one complete set of attachments should be rubber banded or clipped together, not spiral or “comb” bound.

(27) Is a pleading timely if it is postmarked by the specified filing date or must it be actually received by the Board by the filing date?

The Board encourages all parties to utilize the Environmental Appeal Board’s Electronic Filing System (“e-Filing System”) accessible on the Board’s website at

www.epa.gov/eab

under the “Electronic Filing” Link. A document filed through the Board’s e-Filing System is deemed timely if the electronic receipt shows that the document was received by 11:59 p.m. Eastern Time on the day the document is required to be filed. Instructions for using the e-Filing System are available on the Board’s website under the “Electronic Filing” link.

If a party sends a filing to the Board by U.S. mail (not Express Mail), the postmark date of a pleading is not determinative. (The one exception relates to petitions for reimbursement filed pursuant to CERCLA section 106(b), which are addressed below.) A hard copy document is considered filed with the Board when it is received by the Clerk of the Board at the address specified for the chosen method of delivery: a document that is sent to the Board’s mailing address is considered filed when the Clerk receives the document at the

mailing address

, and a document that is sent to the Board’s

hand-delivery

address

is considered filed when the Clerk receives the document at the Board’s

hand-delivery address

Hard copy documents received after business hours will be date-stamped on the following day. If the EAB establishes a briefing schedule by order, any date the EAB specifies for filing a pleading is the date by which it must be

received

, unless otherwise specified in the order.

CERCLA section 106(b)(2)(A) provides that a claim for reimbursement of costs incurred in complying with an order issued under CERCLA section 106(a) must be filed “within 60 days after completion of the required action.” For the purpose of determining a petitioner’s compliance with that deadline, the Board will look to the postmark date if the petition is sent to the Board by U.S. mail (except U.S. Express Mail), or to the date of actual receipt by the Board if the petition is sent by any other means including electronic filing using the Board’s e-Filing System or hand delivery or courier (including deliveries by U.S. Express Mail or a commercial delivery service).

As previously stated, documents may be filed by hand-delivery with the Clerk of the Environmental Appeals Board only during business hours, Monday through Friday (excluding Federal holidays).

(28) May I file a petition for review or notice of appeal and appellate brief with the EAB by facsimile (fax machine)?

The Board encourages all parties to file documents using the Board’s Electronic Filing System (“e-Filing System”). See the EAB website for more information on electronic filing. The Board does not ordinarily allow for the filing of petitions for review or notices of appeal and appellate briefs by facsimile.

See

40 C.F.R. §§ 22.5(a) (notice of appeal and appellate briefs); 124.19(i)(2) (petitions for review).

(29) May I file a motion or a response to a motion with the EAB by facsimile (fax machine)?

The Board encourages all parties to file documents using the Board’s Electronic Filing System (“e-Filing System”). See the EAB website for more information on electronic filing.

The regulations authorize filing by facsimile (fax machine) in very limited circumstances and only for certain types of filings. Under 40 C.F.R.§ 124.19(i)(2), a motion or response to a motion may be submitted to the Board via facsimile if no attachments are included. The part 124 regulations further provide that if a motion or response to a motion is filed by facsimile, within one business day of the motion or response to the motion being faxed to the Board, the original document must be submitted to the Board by electronic filing, mail, or hand-delivery or courier. The regulations at 40 C.F.R. § 22.5(a) provide that the EAB may authorize filing by facsimile, subject to appropriate conditions and limitations.

(30) If I send documents or correspondence to the Board by a commercial delivery service, where should I send them?

Correspondence sent to the Board by a commercial delivery service should be delivered to the Board at the following address:

Clerk of the Board

U.S. Environmental Protection Agency
Environmental Appeals Board
1201 Constitution Avenue, N.W.
WJC East Building, Room 3332
Washington, D.C. 20004

Please include the Board's phone number, (202) 233-0122, for hand-delivered documents.

(31) May I electronically file documents containing confidential business information ("CBI") or other private information?

No. Because documents uploaded onto the Board’s e-Filing System will be available to the public as part of an electronic docket, filers may not upload any CBI or material claimed as CBI. The Board will consider any claim of confidentiality for any business information to be waived if such information is uploaded using the Board’s e-Filing System. Instead, paper copies of documents containing CBI or claimed as CBI should be sent separately to the Clerk of the Board by U.S. mail, commercial delivery service, or hand delivery. Do not transmit documents containing CBI or claimed as CBI by interoffice mail. At a minimum, any documents containing CBI or claimed as CBI should be placed in a separate envelope labelled “This Envelope Contains Confidential Business Information (CBI) and/or Material Claimed as CBI to be opened by the Clerk of the Board only” with the case identifying information printed in the lower right-hand corner. (Please note that in some instances, parties may need to take additional measures to protect CBI or material claimed as CBI, if required by applicable statute, regulation, or agency directive.) If possible, please also place a stamp, watermark, or other prominent written notation on the first page and the back of the last page of the document(s) containing CBI or claimed as CBI that states: “This Document Contains Confidential Business Information (CBI) and/or Material Claimed as CBI.”

Additionally, filers may not upload other private information the disclosure of which would constitute an unwarranted invasion of any person’s privacy (for example: social security numbers, birthdates, medical records, personal financial information or other private information). For information on how to file confidential business information or other private information, please visit the “Electronic Filing” link on the EAB website or contact the Clerk of the Board at

Clerk_EAB@epa.gov

or by phone at 202-233-0122.

(32) How do I file attachments to a brief through the Board’s e-Filing System?

Instructions for using the Board’s e-Filing System are available on the Board’s website under the “Electronic Filing” link.

(33) How do I sign documents that I electronically file?

Your use of the Board’s Electronic Filing System (“e-Filing System”) fulfills the signature requirement for all purposes under the relevant regulations governing your appeal. Pursuant to the Board’s Standing Orders Authorizing Electronic Filing, the full name of the person making the filing must be typed or printed below the signature line of the electronically filed document.

(34) What if I need technical assistance or experience technical difficulties when electronically filing documents?

If you are experiencing problems accessing the Board’s Electronic Filing System (“e-Filing System”) (e.g., login and password issues), you may call the EPA Help Desk at 1-866-411-4EPA. If you are experiencing technical difficulties when electronically filing documents, you may contact the Clerk of the Board at

Clerk_EAB@epa.gov

or (202) 233-0122, for filing assistance. If the problem is caused by a system malfunction and the EPA Help Desk is unable to resolve the problem, you should promptly notify the Clerk of the Board and make alternative filing arrangements. If you are experiencing problems with the Board’s e-Filing System, you should notify the Clerk and provide any supporting evidence of the problem, such as a printed copy of an error message or screenshot of an error page. The Board will verify reported outages of the e-Filing System.

At all times, a litigant filing electronically assumes the risk of all errors not solely attributable to a malfunction of the EAB e-Filing System that may result in the inability to complete an electronic transmission.

It is within the Board’s discretion, on a case-by-case basis, to accept a late filing under special circumstances. However, “[i]t is a petitioner’s responsibility to ensure that filing deadlines are met,”

In re AES Puerto Rico, L.P.,

8 E.A.D. 324, 329 (EAB 1999), and a party filing electronically assumes the risk at all times of filing problems caused by its own errors in using the e-Filing System. A filing problem not attributable to a malfunction of the e-Filing System will not normally be considered a special circumstance justifying late filing. Thus, any party filing electronically is advised to allow sufficient time in advance of the filing deadline to correct any such error.

(35) Are there specific requirements for the filing and service of documents?

Yes. Please refer to the applicable regulations and the Board’s Standing Orders for filing and service requirements. See also the “Guide to the U.S. Environmental Protection Agency’s Environmental Appeals Board,” available under the “EAB Practice Document” link on the EAB website.

a. Filings in appeals of permit decisions under 40 C.F.R. section 124.19

Every document filed with the Board under 40 C.F.R. part 124 must comply with the requirements described in 40 C.F.R. section 124.19(i), which include the following:

A signature by the party or its representative;
The signer’s name, address, and telephone number, as well as an e-mail address (if any), and facsimile number (if any); and
A certificate of service stating the names of the persons served, the date and manner of service, as well as the electronic, mailing or hand-delivery address, or facsimile number, as appropriate.

Please note that your use of the Board’s Electronic Filing System (“e-Filing System”) fulfills the signature requirement for all purposes under the relevant regulations governing your appeal. Pursuant to the Board’s Standing Orders Authorizing Electronic Filing, the full name of the person making the filing must be typed or printed below the signature line of the electronically filed document.

Please review 40 C.F.R. section 124.19(i) to ensure compliance with its requirements.

b. Filings in appeals of Initial Decisions under 40 C.F.R. part 22 (enforcement cases)

The first document filed by any party must include the name, mailing address, telephone number, and email address of a person who is authorized to receive service relating to the proceeding, pursuant to 40 C.F.R. section 22.5(c)(4).

All documents filed in part 22 proceedings must include the following:

A caption that identifies the respondent and the docket number on the document’s first page (40 C.F.R. § 22.5(c)(2));
A signature by the party or its representative (40 C.F.R. § 22.5(c)(3)); and
A certificate of service (40 C.F.R. § 22.5(a)(3)).

Please note that your use of the Board’s e-Filing System fulfills the signature requirement for all purposes under the relevant regulations governing your appeal. Pursuant to the Board’s Standing Orders Authorizing Electronic Filing, the full name of the person making the filing must be typed or printed below the signature line of the electronically filed document.

Please review 40 C.F.R. sections 22.5 and 22.30 to ensure compliance with their requirements.

c. Filings in other proceedings before the Board

Please refer to the relevant regulations governing the appeal at issue and the Board’s Standing Orders for filing and service requirements. For example, the Board’s Order on Procedures for Petitions for Reimbursement Submitted Under Section 106(b)(2)(A) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. § 9606(b)(2)(A) (EAB July 7, 2020) (available on the EAB website,

www.epa.gov/eab

, under “Standing Orders & Procedures”), addresses filing and service requirements for petitions for reimbursement submitted to the Board and the four statutory prerequisites for obtaining review.

The Board’s Standing Order for registration-related appeals under the Federal Insecticide, Fungicide, and Rodenticide Act also addresses filing and service requirements.

See Order Governing Procedures for Registration-Related Appeals Under the Federal Insecticide, Fungicide, and Rodenticide Act (EAB July 8, 2022) (available on the EAB website under “Standing Orders & Procedures”).

(36) Does a party to an appeal have a right to obtain an oral argument before the Board?

No. Although the rules do not provide a

right

to an oral argument, the Board will consider a request for an oral argument, and it will grant the request if it believes that argument would be of assistance in resolving the matter in dispute. To request oral argument, include a statement in your substantive brief explaining why oral argument should be held. The Board also may schedule an argument, even if none has been requested, on its own initiative. Pursuant to 40 C.F.R. section 124.19(h), the Board applies a presumption against oral argument in Prevention of Significant Deterioration and other new source permit appeals.

(37) May I attend an oral argument before the Board and where can I find the schedule of arguments?

Oral arguments are open to the public. Oral arguments can be scheduled virtually or in-person. A schedule of oral arguments and their location may be obtained on this website at the “Upcoming Oral Arguments” link or from the Clerk of the Board.

To attend an oral argument taking place virtually, follow the link available at the Board’s website at the “Upcoming Oral Arguments” link. Observers will have their cameras turned off and their microphones muted.

Most in-person arguments take place in the in the Administrative Courtroom, U.S. Environmental Protection Agency, William Jefferson Clinton Federal Building East, Room 1152, 1201 Constitution Avenue, N.W., Washington, D.C. 20004. For security purposes, advance notice is required to gain entry into the EPA building where the Administrative Courtroom is located. You will be required to pass through a magnetometer and your bags will be screened by an x-ray machine. You are required to show a photo ID issued by a government agency, e.g., a valid driver's license. Members of the public wishing to attend oral argument in the Administrative Courtroom should notify the Clerk of the Board at least one week prior to oral argument to allow the Clerk reasonable opportunity to notify appropriate security personnel. Any party or member of the public interested in attending an oral argument, in person or virtually, who requires an accommodation due to a disability should notify the Clerk of the Board at least one week prior to oral argument. The Clerk of the Board can be reached either by email at

Clerk_EAB@epa.gov

or phone at (202) 233-0122.

(38) Where can I find prior opinions of the Environmental Appeals Board?

EAB opinions may be accessed electronically on this website (

https://www.epa.gov/eab

) under the “Board Decisions” link. Users can sort the Board’s opinions by statute, case type, or alphabetically by case name, or use the search function to find cases of interest. Filings for each active docket, as well as dockets for cases closed since January 1, 2006, are accessible through the “EAB Dockets” link on the website. Published Board decisions are also available in the bound volumes of the Environmental Administrative Decisions (“E.A.D.”), which are generally available at designated Federal Depository Libraries. Further, Board opinions are available through commonly used legal databases.

(39) Can parties request expedited consideration of a matter?

Yes. The Board will take under consideration a motion for expedited consideration of a particular matter, based on unusual and compelling circumstances. The motion should clearly state why the party believes the case deserves expedited consideration.

(40) Does the Board have an Alternative Dispute Resolution program?

The Board has a well-established Alternative Dispute Resolution (“ADR”) program available at no cost to assist parties in appeals before the Board in resolving their disputes with the help of a neutral third party. Participation in the EAB’s ADR program is completely voluntary and is conducted in compliance with the confidentiality provisions of the Administrative Dispute Resolution Act of 1996.

The primary purpose of the Board’s ADR program is to provide the parties with an early neutral evaluation of their positions and to give them a confidential forum in which to explore settlement. Resolving conflict through the use of ADR can have many benefits including (1) better environmental outcomes through faster resolution of disputes; (2) more creative, enduring, and satisfying solutions; and (3) broader stakeholder support.

(41) Where can I find out more information about the EAB's ADR program?

Information about the EAB’s ADR program can be found in the EAB ADR Program Information Sheet available in the “Alternative Dispute Resolution (ADR)” link on the EAB website.

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