(1) What is the Environmental Appeals Board?

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 sits in panels of three and makes 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.

A substantial 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.

 (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.

(3) Where should I file a pleading in a matter before the Board?

 (4) Is electronic filing available?

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

No.

(6) 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

The Board requests one original and five copies of any document filed in hard copy. Where exhibits are more than 30 pages, the Board requests that three sets of exhibits be filed.
 
b.       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.  However, the Board requires that an identical paper copy of any electronically-filed document exceeding 50 pages be sent by U.S. Mail or delivered to the Board by hand, courier, or commercial delivery service within one business day of the date of electronic filing.    
 
i.         If the number of pages in an electronically-filed document exceeds 50 pages, inclusive of the certificate of service, table of contents, and table of authorities, but exclusive of exhibits or attachments, an identical paper copy of that document must be delivered or placed in the U.S. mail within one business day of the date of electronic filing.  If the combined page length of all of the exhibits or attachments submitted in support of a brief or motion exceeds 50 pages, the requirement to submit a paper copy, and its timing, applies to the entire set of exhibits or attachments.
 
Example 1: A brief consists of a 3-page table of contents, a 2-page table of authorities, 47 pages of text, and a 1-page certificate of service.  Supporting the brief are two attachments.  Attachment A is 15 pages and Attachment B is 2 pages.  In this example, the brief is considered to contain 53 pages.  The number of pages in the brief does not include Attachment A and Attachment B.  A paper copy of the 53-page brief must be submitted because it exceeds 50 pages.  A paper copy of Attachment A and Attachment B, which together consist of 17 pages, is not required.
 
Example 2: A 28-page brief is supported by five exhibits.  Exhibit 1 is 14 pages, Exhibit 2 is 5 pages, Exhibit 3 is 42 pages, Exhibit 4 is 7 pages, and Exhibit 5 is 12 pages.  The combined page length of all the exhibits is 80 pages.  A paper copy of the 28-page brief is not required.  However, because the combined page length of all of the exhibits exceeds 50 pages, a paper copy of all 80 pages of exhibits is required.
 
ii.        With the exception of exhibits or attachments, when electronically filing multiple documents, paper copies need not be submitted if each document is electronically filed separately and none of the documents exceeds 50 pages. 
 
Example 3: A 1-page cover letter, 2-page notice of appeal, 50-page appeal brief, and 32 pages of exhibits are electronically filed as four separate document files.  Submitting paper copies of the documents is not required.
 
Example 4:  A 2-page motion for summary disposition and a 35-page brief are electronically filed.  Supporting the brief are 8 exhibits that are filed as two document files, Exhibits 1 though 4 and Exhibits 5 through 8.  Exhibits 1 through 4 consist of 46 pages and Exhibits 5 through 8 consist of 16 pages.  A paper copy of all the exhibits is required despite their filing as two separate document files because the combined length of the exhibits exceeds 50 pages.  Paper copies of the motion for summary disposition and brief are not required.
 
iii.      If a single document, or an exhibit or set of exhibits, is more than 50 pages, it may not be electronically filed in sections to avoid the requirement for submitting a paper copy.  Such lengthy document may, however, be filed in sections for technical reasons. 
 
Example 5: A 60-page appeal brief is filed electronically in two parts, a 40-page “Part I” and a 20-page “Part II”.  Filing the brief in two sections is permissible.  However, a paper copy of all 60 pages of the appeal brief is still required.
 
The Board may exclude from the record any electronically filed document, or set of exhibits or attachments, exceeding 50 pages in length if a litigant fails to send by U.S. mail or deliver by hand, courier, or commercial delivery service a paper copy within one business day of electronic filing.
 
For purposes of this requirement only, if the paper copy is sent via U.S. mail, the timeliness of the submission will be determined by the postmark.  If the paper copy is delivered by courier or commercial delivery service, the timeliness of the submission will be determined by the verified time when the courier or commercial delivery service took possession of the document.  If a document is delivered by hand, the timeliness of the submission will be determined by the date stamp placed on the document when it is received by the Board.

Any paper copy submitted subsequent to an electronic filing must be accompanied by a signed certification stating that it is identical to the filed 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 November 30, 2009.

(7) 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. If the pleading has been mailed to the Board, it must be received by the specified filing date. Similarly, if the pleading is hand-delivered directly to the Board, it must be received at the Board's offices by the specified date. If the Board establishes a briefing schedule by order, any date the Board 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.

(8) 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.

(9) 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 a motion or response to a motion is filed both electronically and by fax on the same day, only the electronic filing will be considered part of the record.
 

(10) 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:

Before November 28, 2012:
U.S. Environmental Protection Agency
Clerk of the Board, Environmental Appeals Board
Ronald Reagan Building, EPA Mail Room
1300 Pennsylvania Avenue, NW
Washington, D.C. 20004

Beginning November 28, 2012:
U.S. Environmental Protection Agency
Clerk of the Board, Environmental Appeals Board
U.S. EPA East Building, Room 3334
1201 Constitution Avenue, NW
Washington, D.C. 20004

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

(11) 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. 

(12) 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 electronically filed together, 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. 

(13) 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 (6).  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. 

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

 (15) Is there a required format for a petition for review or notice of appeal?

(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 of the change. Substitute counsel should file a notice of appearance.

(17) Is there a required format for exhibits?

There is no required format for exhibits. Each exhibit should be clearly marked with consecutive numbers or letters to distinguish it from other exhibits. Exhibits should be clearly referenced in the pleadings. If multiple exhibits are submitted in hard copy, at least one complete set of exhibits should be rubber banded or clipped together, not spiral or "comb" bound.

If you are electronically filing an exhibit or exhibits with a combined page length exceeding 50 pages, a hard copy of the entire set of exhibits must be sent to the Board as described in Question (6).

If you are electronically filing an exhibit that you want to be viewed in color, you should either provide the Board with a hard copy of that color exhibit or electronically file a scanned color copy.

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

(19) How can I purchase bound volumes of the Environmental Administrative Decisions (E.A.D.)?

The first four volumes of the E.A.D. are sold as a set and may be purchased from the U.S. Superintendent of Documents (202-512-1800) for a total price of $113. Volumes 1-3 contain 300 selected pre-Board opinions issued between 1972 and 1992. Volume 4 contains opinions issued by the Board between March 1992 and December 1993. The order number for the four volume set is 055-000-00533-8. Volume 5 contains opinions issued between January 1994 and April 1995. The order number for Volume 5 is 055-000-00545-1. Volume 6 contains opinions issued between May 1995 and mid-March 1997. The order number for Volume 6 is 055-000-00583-4. Volume 7 contains EAB decisions issued from March 1997 to July 1998. The order number for Volume 7 is 055-000-00628-8. Volume 8 contains EAB decisions issues from September 1988 to February 2000. The order number for Volume 8 is 055-000-00638-5. Volume 9 contains EAB decisions issued from March 2000 to April 2001. The order number for Volume 9 is 055-000-00648-2. Volume 10 contains EAB decisions issued from May 2001 to December 2002. The order number for Volume 10 is 055-000-00650-4.

(20) May I review files at the offices of the EAB?

(21) 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.

(22) How may I obtain a copy of the EAB Practice Manual?

(23) 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.

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

A large 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.

(25) 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 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.

Additional Mailing Requirements - Case Name and Case Identifier on Envelope or Outside Packaging

Any envelope or other packaging containing documents sent to the EAB's mailing address or hand-delivery address, as prescribed above in Question (3), should bear a complete and accurate return address in the upper left hand corner.  The envelope or packaging should also clearly state the case name and case identifier in the lower left hand corner.

In all instances, if an appeal has already 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 has not yet been filed, state the name of the permittee or facility and the permit number (e.g., NPDES Permit No. ID-0000-00).

(26) 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.

Additional Mailing Requirements - Case Name and Case Identifier on Envelope or Outside Packaging

Any envelope or other packaging containing documents sent to the EAB's mailing address or hand-delivery address, as prescribed above in Question (3), should bear a complete and accurate return address in the upper left hand corner.  The envelope or packaging should also clearly state the case name and case identifier in the lower left hand corner.

In all instances, if an appeal has already 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 has not yet been filed, state the name of the non-EPA party and the docket number (e.g., Dkt. No. CWA-02-0000) of the proceeding below.

(27) 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?

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

No. The rules do not provide a right to an oral argument. However, the Board will consider a request for an oral argument. It will grant the request if it believes that argument would be of assistance in resolving the matter in dispute. The Board may also schedule an argument, even if none has been requested, on its own initiative.

(29) 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.

(30) How does the EAB make decisions?

The EAB sits in panels of three and decides each matter by majority vote. Two members constitute a quorum. Concurring or dissenting opinions may be issued as appropriate.

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.

(31) 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. ___ .

(32) May I appeal the Board's decision to the Administrator?

No. Decisions of the Board are final and 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.

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

The petitioner may file a motion requesting the Board dismiss the petition.

(34) What environmental laws does the EAB consider?

All major environmental statutes that EPA administers, including:

·    Clean Air Act
·    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
·    Solid Waste Disposal Act (RCRA)
·    Safe Drinking Water Act
·    Toxic Substances Control Act

(35) 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 merits or status of any particular matter before the Board. The Clerk of the Board and Counsel to the Board may be reached at (202) 233-0122.

(36) Who are the members of the Board?

The EAB currently consists of three 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 Catherine R. McCabe served as Principal Deputy Assistant Administrator of EPA’s Office of Enforcement and Compliance Assurance from 2005 to 2011. 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 from 2001 to 2005. 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.

(37) 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 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.

(38) 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.

(39) Does the EAB support the use of Alternative Dispute Resolution (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.

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