The Environmental Appeals Board in General

(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 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.

 (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?

EAB considers major environmental statutes that EPA administers, including:

• Act to Prevent Pollution from Ships
• 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

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

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.

(5) How does the EAB make decisions?

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.

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?

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) 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?

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.

(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. 

(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?

Yes. If counsel changes, or counsel's address, email, 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.

(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.

(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 required form and content for a petition for review or a notice of appeal?

(20) Are there required form and content for briefs?

(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.

(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?

(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?

The Board may exclude from the record any electronically filed document, or set of 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.

The timeliness of a paper copy of an electronically-filed document that exceeds 50 pages sent through the U.S. Postal Service will be determined by its 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 1, 2016.

(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 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.

(29) May I fax a motion or a response to a motion to the EAB?

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

(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
WJC East Building, Room 3332
Washington, DC 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) May I electronically file attachments together with a brief, motion, or other document as one document file?

A motion and associated brief may be filed together electronically. All attachments filed in support of a brief, motion, or other document must be submitted using the "attachment" link in the EAB eFiling System.

(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?

(35) What information must be included in my filing?

(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.

(37) May I attend an oral argument before the Board? How often are they scheduled?

(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?

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.

(40) Does the EAB support the use of ADR to resolve conflicts before the Board?

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