(December 18, 2019) – EPA is soliciting public comments on a proposal to create a new, time-limited alternative dispute resolution (ADR) process, which would result “in a fundamental change to the Agency's long-held administrative exhaustion requirements” and make significant changes to the appeals process before the Environmental Appeals Board (EAB). The proposal also seeks to leave it within EPA’s discretion to decide the precedential value of a final EAB decision. 

The proposal only impacts administrative review procedures for Clean Water Act (CWA) National Pollutant Discharge Elimination System (NPDES) permits issued directly by EPA – it does not impact permits issued by state permitting authorities.

EPA notes that this is a rule of agency organization, procedure or practice and not subject to the notice and comment requirements of the Administrative Procedure Act. Nonetheless, EPA is voluntarily seeking comment “because it believes that the information and opinions supplied by the public will inform the Agency's views.”

Under the proposal, all parties to a permit challenge would be required to convene with an EAB Judge acting as a Settlement Judge, who would assess the litigation risk. EPA notes that over 90% of ADR cases are resolved without litigation. At the conclusion of the convening meeting with the Settlement Judge, or no later than 30 days after the deadline to file a response, the parties can unanimously agree to either extend the ADR process beyond the 30-day window or proceed with the appeal before the EAB. If the parties cannot agree, the permit becomes final and immediately subject to judicial review in federal court.

If the parties agree to proceed with the appeal before the EAB, EPA is proposing significant changes to the appeal process. Among the changes EPA seeks are to:

• Limit the number of requests for extensions to brief filing deadlines to just one 30-day extension per party;
• Eliminate amicus curiae participation;
• Grant the EPA Administrator the authority to issue binding legal interpretations for any case or issue before the appeals board, including at any point before the EAB reviews the case and issues a decision; and
• Impose a 60-day deadline on the EAB to issue a final decision once an appeal has been fully briefed and argued. 

Once the EAB issues a decision, EPA proposes to create a process where the EPA Administrator, acting through the EPA General Counsel, would determine which decisions should be published and only published decisions the Agency considers precedential.

NACWA is particularly concerned with the proposed prohibition on amicus participation in the EAB process, which will limit the EAB’s ability to consider a broader array of stakeholder input. NACWA is also wary of EPA’s desire to lessen the EAB’s ability to act as a neutral arbiter of permit disputes. If EPA’s political leadership can preemptively dictate the legal decisions of the EAB through the issuance of binding legal determinations and retroactively decide which final EAB decisions establish legal precedent, is there any value left to the EAB process?

NACWA will submit comments by the deadline of January 2 and is seeking member input.  Please contact Nathan Gardner-Andrews, NACWA’s Chief Advocacy Officer, with any feedback, questions, or concerns.