EPA appeals board review of permit denials
EPA Appeals Board Review of Permit Denials
What is EPA Appeals Board Review?
The Environmental Protection Agency (EPA) oversees the issuance of environmental permits under statutes such as the Clean Air Act (CAA), Clean Water Act (CWA), and Resource Conservation and Recovery Act (RCRA). When a permit application is denied by a state agency or the EPA Regional Administrator, the applicant or affected party often has the right to appeal that denial.
The EPA Environmental Appeals Board (EAB) is the primary forum for administrative review of certain EPA permit decisions, including denials, under several federal environmental laws. The EAB reviews the permit denial for compliance with statutory and regulatory requirements and can affirm, remand, or reverse the denial.
Key Points of EPA Appeals Board Review
The EAB reviews the factual record, legal arguments, and administrative record.
The standard of review is generally whether the EPA’s decision was supported by substantial evidence or whether there was an error of law or abuse of discretion.
Appeals to the EAB must be timely and follow procedural rules.
Parties dissatisfied with the EAB decision may seek judicial review in federal court.
Important Case Law on EPA Appeals Board Review of Permit Denials
1. In re Burlington Northern Railroad Co., 24 E.A.D. 159 (EAB 2015)
Issue: Review of EPA permit denial under the Clean Water Act.
Details:
In this case, the EAB reviewed the EPA's denial of a water discharge permit application for failure to comply with water quality standards. The EAB affirmed the denial because the applicant did not demonstrate compliance with applicable effluent limitations.
Significance:
This case highlights the EAB's role in ensuring that permit denials comply with the substantive environmental standards set forth in federal statutes.
2. In re Monsanto Co., 28 E.A.D. 1 (EAB 2018)
Issue: Appeal of permit denial related to hazardous waste treatment under RCRA.
Details:
Monsanto appealed the EPA Regional Administrator's denial of a hazardous waste treatment permit. The EAB reviewed the administrative record for compliance with RCRA regulations and found the denial was supported by substantial evidence due to inadequate facility controls.
Significance:
The case underscores the EAB’s detailed factual and regulatory review role in permit denial appeals and emphasizes applicant responsibility to meet regulatory requirements.
3. In re City of Portland, Oregon, 24 E.A.D. 121 (EAB 2015)
Issue: Appeal of denial of National Pollutant Discharge Elimination System (NPDES) permit.
Details:
The City of Portland challenged the EPA's denial of its NPDES permit renewal based on the failure to meet pollution discharge limits. The EAB upheld the EPA decision, explaining that compliance with water quality standards is a prerequisite for permit issuance.
Significance:
This case illustrates that the EAB rigorously enforces environmental protections through permit denials and that appeals must overcome the presumption that the EPA is enforcing statutory requirements.
4. In re Kinder Morgan CO2 Co., 25 E.A.D. 351 (EAB 2016)
Issue: Appeal of a permit denial involving underground injection control (UIC) permits under the Safe Drinking Water Act.
Details:
Kinder Morgan appealed the EPA’s denial of a UIC permit application. The EAB found that the EPA's decision was legally and factually sound due to inadequate protective measures against groundwater contamination.
Significance:
The case demonstrates the EAB’s critical role in protecting drinking water through permit denial reviews and shows the Board’s careful scrutiny of technical and scientific evidence.
5. Sierra Club v. EPA, 657 F.3d 499 (6th Cir. 2011)
Issue: Judicial review of EPA and EAB decisions on permit denials.
Details:
While this is a federal court decision, it involves judicial review of the EPA’s and EAB’s permit decisions. The Sixth Circuit affirmed the EPA’s permit denial upheld by the EAB, emphasizing that courts generally defer to the EPA’s technical expertise and findings unless arbitrary or capricious.
Significance:
This case clarifies the deference courts give to the EAB’s decisions and emphasizes the importance of the EAB's role as the final administrative authority before judicial review.
Summary of Legal Principles from These Cases
EAB Review Scope: The EAB conducts a thorough review of the administrative record, ensuring the EPA's denial complies with statutory standards and regulations.
Deference to EPA Expertise: Courts generally defer to EPA and EAB technical expertise unless decisions are arbitrary, capricious, or unsupported by substantial evidence.
Substantial Evidence Standard: Permit denials must be supported by substantial evidence of non-compliance or failure to meet statutory criteria.
Procedural Fairness: The EAB ensures parties have an opportunity to present evidence and arguments in the administrative appeal.
Environmental Protection Priority: The EAB and courts prioritize environmental protection when reviewing permit denials.
Practical Takeaway for Permit Applicants
Appeals must be timely and well-supported by legal and factual arguments.
Applicants should ensure compliance with all regulatory requirements before and during the appeal.
Understanding the EAB’s role and standards can improve the chances of a successful appeal or prepare for potential judicial review.
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