The Environmental Appeals Board in General

(1) What is the Environmental Appeals Board?

 (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.

Judge Kathie A. Stein

Judge Stein has nearly 40 years of legal experience in both the private and public sectors. Prior to her appointment to the Board, Judge Stein held several leadership positions at EPA, including Director of EPA’s Air Enforcement Division within EPA’s Office of Enforcement and Compliance Assurance (OECA). She also headed OECA’s Resource Conservation and Recovery Act (RCRA) Enforcement Division and served as the Acting Regional Counsel for EPA's Region III (Mid-Atlantic Region). In these capacities, she supervised teams of lawyers as well as technical and administrative personnel.

Before joining EPA in 1990, Judge Stein held positions with the U.S. Department of Justice’s Environment and Natural Resources Division, a non profit governmental organization, the Maryland Attorney General’s Office, and engaged in private law practice. Judge Stein plays a leading role in the Board’s work on international judicial capacity building. She also oversaw the development of the Board’s Alternative Dispute Resolution Program. In addition, during 1995-1996, while on leave from EPA, she worked on environmental issues in Kathmandu, Nepal.

Judge Stein earned her Juris Doctor degree, magna cum laude, in 1979 from the Georgetown University Law Center, where she served as an editor of the Georgetown Law Journal. She received her Bachelor of Arts (B.A.) degree in 1974 from Oberlin College, where she majored in government.

(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, Susan E. Gardinier, Corin James, Grant Macintyre and Ammie Roseman-Orr.  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?

(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?

(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:

(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.

 (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?

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?

(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?

(24) Is electronic filing available?

(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?

(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?

(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?

(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:

(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?

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

(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.