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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
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? Procedures Governing Cases Appealed to the Environmental Appeals Board
12. How may I obtain a copy of the EAB Practice Manual?
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 in Agency enforcement proceedings?
15. What are the procedural rules that govern a claim submitted pursuant to CERCLA § 106(b) for reimbursement of cleanup costs incurred in complying with an EPA cleanup order?
16. If counsel for a party changes during the pendency of a proceeding before the Board, should new counsel file a notice of appearance? Format Requirements for Documents Filing Documents with the Environmental Appeals Board
23. Where should I file a pleading in a matter before the Board? 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? 32. May I electronically file exhibits or attachments supporting a brief, motion, or other document together as one document file? 36. Does a party to an appeal have a right to obtain an oral argument before the Board? Environmental Appeals Board Decisions
38. Where can I find prior opinions of the Environmental Appeals Board?
39. Can I find out when the Board will issue a decision in my case? Alternative Dispute Resolution (ADR)
40. Does the EAB support the use of Alternative Dispute Resolution (ADR) to resolve conflicts before the Board?
41. Where can I find out more information about the EAB's ADR program?
(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?
Most cases are decided without oral argument, based on the administrative record and on written briefs submitted by the parties. However, an oral argument may be scheduled, on motion by any party or at the Board's initiative, where the Board decides that it will assist in decision making. Oral arguments are open to the public. (6) Who are the members of the Board?
9. May I review files at the offices of the EAB?
10. May I copy documents at the offices of the EAB? What is the charge for copying documents?
11. Whom may I call if I have additional questions that have not been answered here?
17. May I appeal the Board's decision to the Administrator?
18. What is the procedure for withdrawing a petition that has been filed with the Board?
19. What is the required form and content for a petition for review or notice of appeal?
20. What is the required form and content for briefs?
21. What is the required form and content for attachments?
22. How should I cite EAB and pre-EAB opinions in my brief?
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 exhibit must I file?
28. May I fax my petition for review, notice of appeal, or brief, to the EAB?
29. May I fax a motion or a response to a motion to the EAB?
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)?
33. Is my signature required on documents that are electronically filed?
34. What if I need technical assistance or experience technical difficulties when electronically filing documents using CDX?
35. What information must be included in my filing?
37. May I attend an oral argument before the Board? How often are they scheduled?
The Environmental Appeals Board (EAB) of the U.S. Environmental Protection Agency is the final Agency decisionmaker on administrative appeals under all major environmental statutes that EPA administers. It is an impartial body independent of all Agency components outside the immediate Office of the Administrator. It was created in 1992 in recognition of the growing importance of EPA adjudicatory proceedings as a mechanism for implementing and enforcing the environmental laws. The EAB generally sits in panels of three judges who make decisions by majority vote.
The EAB's caseload consists primarily of appeals from permit decisions and civil penalty decisions. The EAB has authority to hear permit and civil penalty appeals in accordance with regulations delegating this authority from the EPA Administrator. Appeals from permit decisions made by EPA's Regional Administrators (and in some cases, state permitting officials) may be filed either by permit applicants or other interested persons. A grant of review of a permit decision is at the EAB's discretion. 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.
An additional portion of the EAB's caseload consists of petitions for reimbursement of costs incurred in complying with cleanup orders issued under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA). The EAB decides these matters pursuant to a delegation of authority from the Administrator. The EAB is also authorized to hear appeals from various administrative decisions under the Clean Air Act's acid rain program at 40 C.F.R. Part 78 and appeals of federal Clean Air Act Title V operating permits issued pursuant to 40 C.F.R. Part 71.
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The Board's telephone number is (202) 233-0122.
The Board's fax number is (202) 233-0121.
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All major environmental statutes that EPA administers, including:
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A number of matters are pending before the Board at all times. Cases are prioritized by the Board in its discretion, usually based on the age of the case. Cases involving new source permits, such as those under the PSD program, and cases involving RCRA combustion strategy permits are assigned the highest priority relative to other categories of cases.
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The EAB generally sits in panels of three judges who decide each matter by majority vote. Two members constitute a quorum. Concurring or dissenting opinions may be issued as appropriate.
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The EAB currently consists of four Environmental Appeals Judges appointed by the Administrator:
Judge Leslye M. Fraser served as Associate General Counsel of the Pesticides and Toxic Substances Law Office within EPA’s Office of General Counsel. She also previously served as the Director of the Office of Regulations, Policy and Social Sciences within the U.S. Food and Drug Administration’s Center for Food Safety and Applied Nutrition, engaged in private law practice in Los Angeles and Washington, DC., and was a research engineer and project manager at a leading aerospace company.
Judge Randolph L. Hill served most recently as Acting Director and Deputy Director of EPA’s Office of Wastewater Management. Prior to joining the Office of Water, he served as Deputy Director of EPA's Office of Civil Enforcement, Assistant General Counsel in the Water Law Office of the Office of General Counsel, and a number of other management and legal positions at EPA. He has taught environmental law courses at Tulane University School of Law and the Vermont Law School.
Judge Catherine R. McCabe served as Principal Deputy Assistant Administrator of EPA’s Office of Enforcement and Compliance Assurance. Before joining EPA, she served for 22 years in the Environment and Natural Resources Division of the U.S. Department of Justice, including as Deputy Chief of the Environmental Enforcement Section. She previously served as a New York State Assistant Attorney General and engaged in private law practice in New York City.
Judge Kathie A. Stein served as Director of EPA's RCRA and Air Enforcement divisions within the Office of Enforcement and Compliance Assurance and as Acting Regional Counsel for EPA Region III. Before joining EPA, she held positions with the U.S. Department of Justice, the Environmental Defense Fund, and the Maryland Attorney General's Office, and engaged in the private practice of law.
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(7) Who are the Counsel to the Board?
Currently, seven experienced attorneys serve as counsel to the Board. They are: Nivea Berrios, Susan E. Gardinier, David R. Heckler, Suzanne Krolikowski, Ammie Roseman-Orr, Michelle A. Wenisch, and Stephanie Yu. Counsel to the Board 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. Counsel to the Board do not provide legal advice to the public and will not discuss the particulars of any matter before the Board.
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(8) Who serves as Staff to the Board?
The Clerk of the Board is Eurika Durr. Mildred T. Johnson is the Board's Staff Assistant, and Annette Duncan serves as the Board's Secretary.
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(9) May I review files at the offices of the EAB?
Yes. You may review files between 8:30 a.m. and 4:30 p.m. Monday through Friday (excluding Federal holidays). Appointments to review files should be made in advance with the Clerk of the Board. The Clerk of the Board can be reached either by e-mail (durr.eurika@epa.gov) or by calling (202) 233-0122.
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(10) May I copy documents at the offices of the EAB? What is the charge for copying documents?
Members of the public may not copy documents. However, the Clerk of the Board will provide copies of documents in the files. There is a charge of 15 cents per page for copies in excess of 25 pages.
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(11) Whom may I call if I have additional questions that have not been answered here?
The Clerk of the Board is available to answer questions from 8:30 a.m. to 12:00 p.m. and from 1:00 p.m. to 4:30 p.m. Eastern Time Monday through Friday (excluding Federal holidays). Counsel to the Board are also available to answer general questions about the appeals process and the Board's procedures. Counsel to the Board do not provide legal advice to the public and will not discuss the particulars of any matter before the Board. The Clerk of the Board and Counsel to the Board may be reached at (202) 233-0122.
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(12) How may I obtain a copy of the EAB Practice Manual?
The Environmental Appeals Board's Practice Manual [226 KB] is available in PDF format on the EAB Guidance Documents section of the Board’s Web site (http://www.epa.gov/eab).
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(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. § 124.19, contain procedures for appealing RCRA, PSD, UIC, and NPDES permit decisions. 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.
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(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.
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(15) What are the procedural rules that govern a claim submitted pursuant to CERCLA § 106(b) for reimbursement of cleanup costs incurred in complying with an EPA cleanup order?
There are statutory requirements for filing a claim pursuant to CERCLA §106(b), including the requirement that a claim for reimbursement be filed "within 60 days after completion of the required action." However, there are no regulatory procedures governing CERCLA §106(b) reimbursement petitions.
Additional information for filing CERCLA §106(b) petitions for reimbursement is contained in the Revised Guidance on Procedures for Submission and Review of CERCLA Section 106(b) Reimbursement Petitions (February 23, 2012). The Board’s Standing Orders may set forth additional procedural requirements for CERCLA § 106(b) reimbursement proceedings.
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(16) If counsel for a party changes during the pendency of a proceeding before the Board, should new counsel file a notice of appearance?
Yes. If counsel changes, or counsel's address, fax number, or telephone number changes during the course of the proceeding, it is counsel's responsibility to inform the Board promptly of the change. Substitute counsel should file a notice of appearance.
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(17) May I appeal the Board's decision to the Administrator?
Decisions of the Board generally are final and, except for cases involving penalty assessments against other federal agencies, may not be further appealed to the Administrator. However, the parties (other than EPA) have statutory rights of appeal to federal court under the various environmental statutes.
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(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.
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(19) What are the required form and content for a petition for review or a notice of appeal?
Form and content requirements vary slightly based on the type of the appeal. Question (35) addresses additional information that may be required for filing. Appendix A of the Environmental Appeals Board's Practice Manual [226 KB] contains samples of various documents that are filed in EAB proceedings.
a. Petitions for Review of Permit Decisions under 40 C.F.R. § 124.19
A petition for review of a permit decision under 40 C.F.R. § 124.19 must comply with the form and content requirements described in 40 C.F.R. § 124.19(d). A petition for review must contain a caption that indicates the name of the permit applicant, the permitted facility, and the permit number. A petition for review also must meet the page limitations described in 40 C.F.R. §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 of where they are cited
- A table of attachments, if attachments are included with the brief; and
- A statement of compliance with the word limitation, which is specified in 40 C.F.R. § 124.19(d)(3).
b. Notice of Appeal under 40 C.F.R. part 22
Notices of appeal filed under 40 C.F.R. part 22 must include a caption that identifies the respondent and the docket number. An appeal brief should accompany the notice of appeal. See Question (20) for information about form requirements for appeal briefs filed in cases governed by Part 22.
c. All 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
The Revised Guidance on Procedures for Submission and Review of CERCLA Section 106(b) Reimbursement Petitions provides that petitions for reimbursement should include a caption identifying the name and address of the facility at which the response action was implemented and the U.S. EPA docket number for the section 106(a) order, if issued by EPA. A complete copy of the Section 106(a) order also should accompany the petition as an attachment. For additional guidance on the form of attachments with the Board, see Question (21).
A petition for review under Part 71 should contain a caption that indicates the name of the permit applicant, the permitted facility, and the permit number.
There are no required formats for all other filings that commence a proceeding before the Board.
(20) Are there required form and content for briefs?
Form and content requirements vary slightly based on the type of the appeal. Question (35) addresses additional information that may be required for filing. Appendix A of the Environmental Appeals Board's Practice Manual [226 KB] contains samples of various documents that are filed in EAB proceedings.
a. Briefs Filed in Appeals of Permit Decisions under 40 C.F.R. § 124.19
All briefs must meet the page limitations described in 40 C.F.R. §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 of where they are cited;
- A table of attachments, if attachments are included with the brief; and
- A statement of compliance with the word limitation, which is specified in 40 C.F.R. § 124.19(d)(3).
b. Briefs Filed in Appeals of Initial Decisions under 40 C.F.R. part 22 (enforcement cases)
Specifications for the contents of an appeal brief are set forth at 40 C.F.R. § 22.30(a), which provides that the appellant’s brief shall contain the following:
- Tables of contents and authorities (with page references);
- A statement of the issues presented for review;
- A statement of the nature of the case and the facts relevant to the issues presented for review (with appropriate references to the record);
- An argument on the issues presented, a short conclusion stating the precise relief sought, alternative findings of fact; and alternative conclusions regarding issues of law or discretion.
Pursuant to 40 C.F.R. § 22.5(c)(2), legal briefs and memoranda that exceed twenty pages in length (excluding attachments) also must contain a table of contents and a table of authorities with page references.
c. Briefs Filed in All Other Proceedings Before the Board
There is no required format for briefs filed in all other proceedings before the Board.
(21) What are the required form and content for attachments?
a. Attachments Supporting Briefs in Appeals of Permit Decisions under 40 C.F.R. § 124.19
If the petition or brief includes attachments, a table must be included that provides the title of each appended document and assigns a label identifying where the appended document may be found (e.g. Excerpt from the Response to Comments … Attachment 1).
b. Attachments Supporting Briefs in All Other Cases before the Board
There is no required format for attachments. Each attachment should be marked clearly with consecutive numbers to distinguish it from other attachments. Attachments should be referenced clearly in the briefs.
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(22) How should I cite EAB and pre-EAB opinions in my brief?
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 March 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 opinions that were published in Volume 3, and that were issued by the Chief Judicial Officer and 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 has adopted a form of citation for opinions that have not yet been published in the E.A.D. The form of citation indicates the Board's appeal number, the decisionmaker, the complete date of the decision (including month and day), and the number of the volume in which the opinion will appear when it is published. An example of a citation to such an EAB opinion is as follows:
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 that 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) Where should I file a pleading in a matter before the Board?
You may choose to file a document by paper or electronically. Only one method is required for a particular document.
a. Paper Filing
Any envelope or other packaging containing documents sent to the EAB's mailing address or 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 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.
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 § 106(b), state the name of the clean-up site.
i. EAB Mailing Address
All documents that are sent through the U.S. Postal Service (except by Express Mail) MUST be addressed to the EAB's mailing address. Please note, the EAB mailing address changed on November 28, 2012, to the following:
- Clerk of the Board
U.S. Environmental Protection Agency
Environmental Appeals Board
1200 Pennsylvania Avenue, NW
Mail Code 1103M
Washington, DC 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. Documents sent by commercial delivery services such as Federal Express and UPS are also hand-delivered 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 (e.g., Federal Express or UPS) MUST be delivered to the hand delivery address. Please note, the EAB hand delivery address changed on November 28, 2012, to the following:
Clerk of the Board Please include the Board's phone number, (202) 233-0122, for all hand-delivered documents.
NOTE: Documents sent to the Environmental Protection Agency via the U.S. Postal Service may be delayed by random mail screening and/or sterilization procedures. Delivery of mail addressed to federal government offices within the 20460 ZIP code may be delayed as long as 10-12 days, and delivery of Express Mail to the 20004 ZIP code may be delayed as long as 6-7 days. Parties are encouraged to use the Board’s electronic filing system or non-U.S. Postal Service commercial delivery services and the Board’s hand-delivery address when filing pleadings with the Board. b. Electronic Filing
The Board accepts for electronic filing documents in portable document format (PDF) – including notices of appeal, petitions for permit review, motions, briefs and accompanying exhibits and attachments – in cases currently or subsequently filed with the Board.
The Environmental Protection Agency has created the Central Data Exchange (CDX), a single portal that allows users to register and then submit information electronically to a number of Agency programs. The EAB is using this portal to receive official filings electronically in lieu of paper filings. CDX may be accessed through its Web site at http://cdx.epa.gov. Sending a document directly to the Board via e-mail, rather than through the CDX portal, does not constitute electronic filing of a document.
Information on how to electronically file documents is available on this Web site at the "Electronic Filing" link. For more information on the Board’s authorities for electronic filing, please see the Board's Standing Orders and 40 C.F.R. § 124.19(i)(2) (for permit cases).
Documents filed electronically must be received by 11:59 p.m. Eastern Time on the day the document is required to be filed with the Board to be considered timely.
U.S. Environmental Protection Agency
Environmental Appeals Board
1201 Constitution Avenue, NW
U.S. EPA East Building, Room 3334
Washington, DC 20004
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(24) Is electronic filing available?
Yes. See Question (23), the Electronic Filing section of this Web site, and the Board's Standing Orders.
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(25) Is there a fee for filing a petition or an appeal with the EAB?
No.
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(26) How many copies of each filing and each exhibit must I file?
The number of copies that shall be filed with the Board depends on whether you are filing your documents in hard copy or electronically. Multiple hard copies of a document that is filed electronically are not required.
a. Hard Copy Filing
(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?
Except for petitions for reimbursement filed pursuant to CERCLA § 106(b), the postmark date of a pleading is not determinative. 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 as described in Question (23): 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 4:30 p.m. 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 means the date by which it must be received, unless otherwise specified in the order.
CERCLA § 106(b) provides that a claim for reimbursement of costs incurred in complying with an order issued under CERCLA § 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 certified mail, or to the date of actual receipt by the Board if the petition is sent by any other means.
As previously stated, documents may be filed by hand-delivery with the Clerk of the Environmental Appeals Board only from 8:30 a.m. to 12:00 p.m. and from 1:00 p.m. to 4:30 p.m. Eastern Time, Monday through Friday (excluding Federal holidays).
NOTE: Documents sent to the Environmental Protection Agency via the U.S. Postal Service may be delayed by random mail screening and/or sterilization procedures. Delivery of mail addressed to federal government offices within the 20460 zip code may be delayed as long as 10-12 days, and delivery of Express Mail addressed to federal government offices within the 20004 zip code may be delayed as long as 6-7 days. Parties are encouraged to use the Board’s electronic -filing system or non-U.S. Postal Service commercial delivery services and the Board’s hand-delivery address when filing pleadings with the Board.
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(28) May I fax my petition for review, notice of appeal, or brief, to the EAB?
No. The Board will not accept petitions for review, notices of appeal, or briefs, for filing by facsimile.
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(29) May I fax a motion or a response to a motion to the EAB?
Yes. A motion or response to a motion may be filed by facsimile if the submission contains no attachments. Within one business day of faxing the motion or response to a motion, the original document must be submitted to the Board by electronic filing, mail or hand-delivery. Copies of the faxed motion or response to motion should also be served on other parties.
If on the same day a motion or response to a motion is filed both electronically and by fax, only the electronic filing will be considered part of the record.
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(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 may be delivered to the Board at the following address:
Clerk of the Board
U.S. Environmental Protection Agency
Environmental Appeals Board
1201 Constitution Avenue, NW
U.S. EPA East Building, Room 3332
Washington, DC 20004
Please include the Board's phone number, (202) 233-0122, for hand-delivered documents.
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(31) May I electronically file documents containing confidential business information (CBI)?
The Board will consider business confidentiality claims waived when a document is filed electronically. Any information for which a business confidentiality claim is asserted must be submitted in the manner specified by the regulations applicable to the appeal. See, e.g.,40 C.F.R. § 22.5(d) for those appeals governed by 40 C.F.R. part 22.
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(32) May I electronically file exhibits or attachments together with a brief, motion, or other document as one document file?
A motion and associated brief may be filed together electronically, but exhibits or attachments filed in support of a brief, motion, or other document should be submitted separately from the brief or motion. Where there are multiple exhibits or attachments, they should be filed together in a single electronic file to the extent technically practicable.
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(33) Is my signature required on documents that are electronically filed?
Your use of CDX fulfills the signature requirement for all purposes under the relevant regulations governing your appeal. The full name of the person making the filing must be typed or printed below the signature line of the electronically filed document.
If you are electronically filing a document or an exhibit or set of exhibits that exceeds 50 pages, you must send by U.S. mail or deliver by hand, courier, or commercial delivery service to the Board an identical paper copy of that document within one business day of the date of electronic filing (see Question (26b)). All paper copies submitted subsequent to an electronic filing must be accompanied by a signed certification stating that it is identical to the previously submitted electronic copy. The signature should be in blue ink.
Sample certification language:
I certify that the foregoing Notice of Appeal and Appeal Brief are identical copies of the Notice of Appeal and Appeal Brief electronically filed in this case with the Environmental Appeals Board on February 3, 2010.
(34) What if I need technical assistance or experience technical difficulties when electronically filing documents using CDX?
If you are experiencing problems with the CDX system, you may call the CDX Help Desk before 6 p.m. Eastern Time to obtain filing assistance. Contact information for the CDX Help Desk is available at http://www.epa.gov/cdx. If the problem is caused by a CDX equipment or system malfunction and CDX 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 CDX after 4:30 p.m. Eastern Time, when the Clerk’s office closes, you should notify the Clerk on the next business day and provide any supporting evidence of the problem, such as a printed copy of an error message or screen print of an error page. The Board will verify reported outages with CDX. The Clerk may be reached at (202) 233-0122.
At all times, a party filing electronically assumes the risk of all errors not solely attributable to a CDX malfunction 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 (EAB 1999), and a party filing electronically assumes the risk at all times of filing problems caused by its own errors in using CDX. A filing problem not attributable to a malfunction of CDX 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.
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(35) What information must be included in my filing?
The required information for filings varies slightly depending on the type of the appeal. Appendix A of the Environmental Appeals Board's Practice Manual [226 KB] contains samples of various documents that are filed in EAB proceedings.
a. Filings in Appeals of Permit Decisions under 40 C.F.R. § 124.19
Every document filed with the Board must comply with the requirements described in 40 C.F.R. § 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 review 40 C.F.R. § 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, address, and telephone number of the person who is authorized to receive service relating to the proceeding, pursuant to 40 C.F.R. § 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;
- A signature by the party or its representative (40 C.F.R. § 22.5(c)(3); and
- A certificate of service (40 CF.R. § 22.5(a)(3)).
Please review 40 C.F.R. §§ 22.5 and 22.30 to ensure compliance with their requirements.
c. Filings in All Other Proceedings before the Board
The Revised Guidance on Procedures for Submission and Review of CERCLA Section 106(b) Reimbursement Petitions [56 KB] describes the guidelines for documents filed in such proceedings before the Board. Each filing should include the following:
- The petitioner's full name, title, and address; and
- The name, title, address, telephone number, fax number (if available), and e-mail address (if available) of any agent or attorney authorized to represent the petitioner (or, if the petitioner is not represented, the petitioner’s own address, telephone number, fax number (if available, and e-mail address (if available)).
There are no specified requirements for filings in all other proceedings before the Board.
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(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. The Board also may schedule an argument, even if none has been requested, on its own initiative. Pursuant to 40 C.F.R. § 124.19(h), the Board applies a presumption against oral argument in PSD and other new source permit appeals.
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(37) May I attend an oral argument before the Board? How often are they scheduled?
Yes. Oral arguments are open to the public. Arguments are scheduled at the Board's discretion.
A schedule of oral arguments and their location may be obtained on this Web site at the Upcoming Oral Arguments link or from the Clerk of the Board.
Unless indicated otherwise, oral arguments take place in the EPA's Administrative Courtroom, U.S. Environmental Protection Agency, U.S. EPA East Building, Room 1152, 1201 Constitution Avenue, NW, Washington, D.C. Those wishing to attend a particular argument must contact the Clerk of the Board at least one week before oral argument. This advance notice is required for security reasons so that attendees' names may be placed on an admittance list to the hearing room. The Clerk of the Board can be reached either by e-mail (durr.eurika@epa.gov) or by calling (202) 233-0122.
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(38) Where can I find prior opinions of the Environmental Appeals Board?
The full text of all formal EAB opinions may be accessed electronically at the EAB's Web site (http://www.epa.gov/eab) and by subscribers to Lexis® and Westlaw®. The opinions are also published in a series of bound volumes titled Environmental Administrative Decisions (E.A.D.), which may be purchased from the U.S. Government Printing Office, and which may be read at several hundred public and law libraries that are designated Federal Depository Libraries. The opinions are also commercially available in the EPA Administrative Law Reporter, EPA Shadow Law (TM) and ELI Environmental Law Reporter.
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(39) Can I find out when the Board will issue a decision in my case?
- No. 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. However, the Board will not routinely provide information as to when any particular matter will be decided.
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(40) Does the EAB support the use of ADR to resolve conflicts before the Board?
The EAB supports the use of ADR to resolve conflicts before the Board. Resolving conflict through the use of ADR can have many benefits including the faster resolution of issues and more creative, satisfying and enduring solutions.
The EAB's ADR program offers parties in many cases the option of participating in ADR with the assistance of an EAB Judge acting as a neutral evaluator/mediator. The primary purpose of the program is to provide a neutral, confidential forum for the settlement of cases before the Board. Participation is completely voluntary. More information is available on the ADR section of the EAB's Web site.
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(41) Where can I find out more information about the EAB's ADR program?
More information about the EAB's ADR program can be found in the EAB ADR Program Information Sheet, which is posted in the ADR section of the EAB's Web site.
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