Other Fields
Agency Scheme: 
EPAOOALJ0001
Level: 
Appeal Level One
ADJUDICATION STRUCTURE
Appeals: Basic Structure
Appeal Office (local name): 
Environmental Appeals Board
Appeal Office (global name): 
Environmental Protection Agency: Environmental Appeals Board
Sub-Agency/Bureau/Division:: 
Office of Administration and Resources Management
Appeal Officer #1 (Title): 
EAB Judge
Appeal Officer #2 (Title): 
N/A
Are administrative appeals permitted from final decisions issued by this appellate office?: 
Yes (Some Types of Cases)
Comments/Notes on Adjudication Structure: 
Appellate review of initial hearing-level decisions by ALJs and other EPA adjudicators, primarily relating to administrative enforcement actions/civil penalties (40 CFR Part 22) and permits under RCRA, UIC, NPDES, and PSD programs (40 CFR Part 124). Although both private parties and EPA may appeal a part 22 penalty decision to the EAB, only private parties may appeal a part 124 permit decision. In addition, the EAB is authorized to review appeals from various administrative decisions, including EAJA claims (40 CFR Part 17); civil penalties under the PFCRA (40 CFR Part 27); certification of residential wood heaters (40 CFR Part 60); Clean Air Act-based noncompliance penalties (40 CFR Part 66); federal operating permits issued under Title V of the CAA (40 CFR Part 71); the acid rain program under the CAA (40 CFR Part 78); automobile and engine recall orders (40 CFR Part 85); pesticide registration cancellation/suspensions under FIFRA (40 CFR Part 164); regulatory decisions/orders under the Noise Control Act (40 CFR Part 209); and ocean dumping permits (40 CFR Part 222). The EAB also issues final decisions granting or denying petitions for reimbursement submitted under section 106(b)(2) of CERCLA and reviews employment discrimination cases involving the Office of Civil Rights (EPA Delegation 1-83). The EAB's general structure and function are established in 40 CFR 1.25(e). Administrative appeals from final EAB decisions are rarely allowed. The one exception is in enforcement cases involving other federal agencies; these other agencies may appeal EAB final orders to the Administrator. (See 40 CFR Part 22.31(e).)
PROCESS & PROCEDURE - General Information
Which party (or parties) is/are permitted to file appeals with this office?: 
Either
Are private parties permitted to have representation at appeal hearings?: 
Yes (All Types of Cases)
Who may serve as a private party representative?: 
Either
About what percentage of private parties were represented at hearings (FY2013)?: 
66.00%
Is the agency permitted to have representation at appeal hearings?: 
Yes (All Types of Cases)
Who may serve as an agency representative?: 
Attorney
Are ex parte contacts prohibited?: 
Yes (All Types of Cases)
Regulations/rules of practice for appeal hearings (please include CFR citations): 
40 CFR Parts 1, 17, 22, 27, 60, 66, 71, 78, 85, 124, 164, 209, 222
Other published guidance for appeal hearings (if any): 
EAB Practice Manual (Aug. 2013); A Citizen's Guide to EPA's Environmental Appeals Board (Aug. 2013); Revised Guidance on Procedures for Submission and Review of CERCLA Section 106(b) Reimbursement Petitions (Feb. 2012)
PROCESS & PROCEDURE - Hearing Procedure
What types of hearings are permitted on appeals adjudicated by this office?: 
Written (Document-Only) Hearing
In-Person
Video
Phone
Please provide the approximate percentage of each type of hearing relative to the total number of appeal hearings (FY2013)
Written (Document-Only) Hearing: 
95%
In-Person: 
3%
Video: 
1%
Phone: 
1%
How is the type of hearing selected for appeals heard by this office?: 
Depends on Nature of Case/Claim
If "Depends on Nature of Case/Claim", please describe: 
EAB has discretionary authority to determine whether oral argument will be conducted for any particular appeal. Oral argument may be held either at the request of a party or on the Board's own initiative. In PSD and other new source review permit appeals, there is a presumption against oral argument due to the time sensitive nature of these appeals. (See EAB NSR Standing Order (Mar. 2013); 42 USC 7475(c).)
How many appeal officers preside at each hearing?: 
Varies by Case
If "Varies by Case," please describe: 
Typically, three appeal officers preside at each hearing. Where absence or recusal of a member prevents a three-member panel, the Board is authorized to sit on a matter as a two-member panel. (40 CFR 1.25(e)(1).)
Is factual development permitted at the appellate hearing as a means of supplementing the record from below?: 
No
Can third-parties submit amicus briefs and/or evidence?: 
Yes
Adjudication Officer Discretion
Are appeal hearings recorded and/or transcribed?: 
Yes
Are appeal hearings open to the public?: 
Presumed Open (But May Be Closed Under Certain Conditions)
If "Varies by Case," please describe: 
Hearings are generally open to the public. Exceptional circumstances may arise, however, where parties have confidential business information claims (CBI), privacy concerns (PII), or national security issues that could lead to the closing of part or all of a hearing to the public. This has rarely, if ever, been done.
PROCESS & PROCEDURE - Post-Hearing Procedure
Who typically drafts final decisions on appellate cases adjudicated by this office?: 
Adjudication Officer
Staff Attorney
Who has authority to issue final decisions on appellate cases adjudicated by this office?: 
Adjudication Officer
If "Other/Varies by Case," please specify: 
Final decisions are issued by panels of three appeal officers (or, on rare occasion, two appeal officers).
Do agency regulations or guidance provide time limits for issuance of final decisions on appellate cases?: 
Yes (Some Types of Cases)
If "Yes," please specify these time limit(s): 
Several statutes and/or regulations provide time limits. For example, a final agency decision on CAA PSD permits must be issued within one year of filing of the permit application (inclusive of time for all administrative adjudication levels, including EAB review.) (See 42 USC 7475(c).) Certain other appeals are time-limited by regulation, such as appeals of FIFRA suspension/cancellation/refusal to register decisions (within 90 days of the close of the hearing or filing of an accelerated decision, see 40 CFR 164.103) and Ocean Dumping permit appeals (within 45 days from the filing of a notice of appeal, see 40 CFR 222.12).
About how long does it take on average—as of FY2013—to adjudicate appeals by this office?: 
234 Days
Is judicial review available after issuance of a final decision on appellate cases adjudicated by this office?: 
Yes (All Types of Cases)
If "Yes (Some Types of Cases)," please describe types of decisions/cases that are judicially reviewable: 
NOTE: Only private parties may appeal these appellate cases to the federal courts. The Agency may not appeal this office's final decisions.
PROCESS & PROCEDURE - Case Management
How are claims/cases processed at this appellate office?: 
Other
Please briefly describe your case management practice(s) at this office: 
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, are assigned the highest priority relative to other categories of cases.
Does the agency permit web-based electronic filing of briefs or other documents in cases adjudicated by this appellate office?: 
Yes
Are final decisions issued by this appellate office published and/or posted on the agency website?: 
Yes (All Decisions)
Do agency regulations/rules of practice specify the contents of the administrative record on appeals heard by this office?: 
Yes (Some Types of Cases)
If "Yes," please provide citation(s): 
40 CFR 124.18
Do agency regulations/rules of practice provide for closure of the record on appeals heard by this office?: 
Yes (Some Types of Cases)
If "Yes," please provide citation(s): 
In permit appeal cases, the administrative record is closed by regulation at the time of permit issuance, prior to the appeals heard by this office. (See, e.g., 40 CFR 124.18.) In penalty appeal cases, the scope of the appeal is generally limited to those issues raised during the course of the proceeding and the initial decision and to issues concerning subject matter jurisdiction. (See 40 CFR 22.30(c).) There are no such regulations/rules of practice for CERCLA reimbursement petition cases.
PROCESS & PROCEDURE
Comments/Notes on Appellate Process & Procedures (Optional): 
*Standard of Review: EPA's Consolidated Rules of Procedure (CROP) (40 CFR Part 22) provide for de novo review of both factual and legal conclusions of the presiding officer. However, the EAB generally defers to findings of fact by presiding officers based on witness credibility. (See 40 CFR 22.30(f), EAB Practice Manual, pp. 29-30). *Precedential Decisions: The EAB's decisions are considered precedential in subsequent cases. * Consent Agreements and Final Orders (CAFO): Part 22 delegates to the EAB the authority to ratify, on behalf of the Administrator, CAFOs between agency and respondents for certain administrative enforcement actions. (See 40 CFR 22.18(b)). Such CAFOs may assess civil penalties and/or impose compliance obligations.
ADJUDICATORS
Total # of Appeal Officers: 
4
ADR: General Information
Is ADR available at one or more points for appellate cases heard by this office?: 
Yes
If "Yes," when is ADR available?: 
Pre-Hearing
Is ADR a mandatory or voluntary process?: 
Voluntary
What type(s) of ADR are available?: 
Mediation
If "Other," please specify:: 
The Judge or the parties may occasionally determine that use of EAB's ADR program would not be suitable for a particular matter. In such cases, the parties are not precluded from pursuing settlement or ADR outside the Board's ADR program.
Who conducts the ADR?: 
Non-Presiding Adjudicator
Other
If "Other," please specify:: 
An EAB Judge typically serves as a neutral evaluator/mediator with one of the EAB's counsel acting as a co-mediator. Neither this EAB judge nor this attorney would participate in the case should ADR be unsuccessful in resolving the case.
Regulations/rules of practice governing ADR process (please include CFR citations): 
65 Fed. Reg. 81,858 (Dec. 2000) (EPA policy on alternative dispute resolution)
Other published guidance on ADR process (if any):: 
EAB Alternative Resolution Program Information Sheet (undated) (available on agency website)
Comments/Notes on ADR Process (Optional): 
The EAB has video conferencing equipment, which may be used as needed for ADR processes.
ADR – Summary Statistics
Comments/Notes on ADR Statistics (Optional): 
NOTE: In FY 2013, the 2 cases that were resolved through the EAB's ADR program had been initiated in FY 2012.
CASELOAD STATISTICS - Summary Statistics
Total # Cases Filed/Opened (FY2013): 
59
Total # Cases Decided/Closed (FY2013): 
41
Total # Cases Pending (End of FY2013): 
18
CASELOAD STATISTICS - Supplementary Statistics
Does your agency maintain annual caseload statistics for this hearing office by case type (e.g., discrimination complaint, licen: 
Yes
If "Yes," please indicate preferred format below.: 
By providing case type statistics on this form
Verified by Agency: 
Verified