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EPA Updates PSD Permit Appeal Rules

On January 9, 2017, EPA published a final rule, “Consolidated Rules of Practice Governing the Administrative Assessment of Civil Penalties, Issuance of Compliance or Corrective Action Orders, and the Revocation/Termination or Suspension of Permits; Procedures for Decisionmaking,” changing some of the federally-issued PSD permit appeal procedural rules. The rule changes certain electronic service provisions, imposes limits on the length of motions and responses, and changes the “mailbox” rule that provides additional time depending on how a document is served.

ANALYSIS

EPA released the rule, published at 82 Fed. Reg. 2230, pursuant to the Administrative Procedure Act’s exemption for “rules of agency organization, procedure, or practice” without first proposing them for public comment. 5 U.S.C. § 553(b). The rule changed both the procedures under Part 22, the “Consolidated Rules of Practice Governing Administrative Assessment of Civil Penalties, Issuance of Compliance or Corrective Action Orders, and the Revocation/Termination or Suspension of Permits,” and Part 124, “Procedures for Decisionmaking,” which contains EPA procedures for issuing, modifying, revoking and reissuing, or terminating all federally-issued RCRA, UIC, PSD and NPDES ‘‘permits’’ (including ‘‘sludge-only’’ permits. This blog post addresses the Part 124 changes, although the Part 22 changes are similar. These rules affect the appeal of federally-issued PSD permits, which are appealed to the Environmental Appeals Board.

The most significant change affecting most parties is clarifying the so-called “mailbox” rule for calculating when you must act under Part 124. The new rule prescribers that when service is made by U.S. mail, EPA internal mail, or reliable commercial delivery service, three days are added to the prescribed time, but no time is added when service is made by personal delivery, facsimile or email. 40 C.F.R. § 124.20(d).

The other significant change is the imposition of a page limit on motions and responses to motions, which are now limited to 7000 words. 40 C.F.R. § 124.19(f)(5). Where a motion exceeds 7000 words, it may be excluded from consideration. The Environmental Appeals Board has discretion to allow a longer motion or reply where “a party can demonstrate a compelling and documented need to exceed such limitations.” Id.

The new rule also imposes upon EPA the requirement to respond to arguments raised by the appellant and provide specific citations or appropriate references in the document, 40 C.F.R. § 124.19(b)(1), and to serve copies of rulings, orders and decisions on the parties, 40 C.F.R. § 124.19(i)(3)(iii).

Administrative changes include granting the Environmental Appeals Board the authority to require filing on the electronic filing system or by facsimile and specifying that service of process occurs upon mailing for U.S. mail, EPA internal mail, when placed in the custody of a reliable commercial delivery service, or upon transmission for facsimile and email. 40 C.F.R. § 124.19(i) & (i)(2). The rule also requires that “the first document filed by any person” must contain an email address, in addition to other contact information. 40 C.F.R. § 124.19(i)(3). If parties consent to service by facsimile or email, they must file an acknowledgement of that consent with the Clerk of the Environmental Appeals Board. 40 C.F.R. § 124.19(i)(3)(ii).

COMMENTARY

Overall, this rule is a positive step toward making procedures before the Environmental Appeals Board easier and clearer.

 

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