Effective March 26, 2013, the U.S. Environmental Protection Agency (EPA) Environmental Appeals Board has revised its procedural rules. 78 Fed. Reg. 5281 (Fri., Jan. 25, 2013). The rules, which are set forth in 40 C.F.R. § 124.19, govern administrative appeals from EPA-issued RCRA, UIC, NPDES, PSD or other final permit decisions. Under the current rules, a petitioner is required to file a substantive petition for review demonstrating that review is warranted. The Board considers this petition, along with any responsive briefs, to determine whether to grant review. If review is granted, the current rule contemplates a second substantive round of briefing on the merits. The amended rule essentially removes this second round of briefing; substantive briefing must be submitted at the outset of the appeal with additional briefing only if the Board determines it warranted. The Board generally does not have jurisdiction to review permits granted by authorized state permit programs—such as Minnesota’s NPDES permit program. However, certain federal decisions related to state permit programs may nonetheless be appealed to the Board. For example, in January 2013, the Minnesota Center for Environmental Advocacy and others filed a petitions with the Board challenging EPA’s approval of water-quality variances proposed to be included in an MPCA-issued NPDES permit for Mesabi Nugget, LLC. Click here to see the petitions: MCEA Petition for ReviewWater Legacy PetitionJoint Petition of Fond du Lac and Grand Portage Bands, Part 1 of 2Joint Petition of Fond du Lac and Grand Portage Bands, Part 2 of 2.

UPDATE: On March 19, 2013, the Environmental Appeals Board issued a decision in the Mesabi Nugget NPDES matter, dismissing the petitions from MCEA, Water Legacy, and the Bands for lack of jurisdiction. The Board decided that its jurisdiction to review “variance” decisions pursuant to 40 C.F.R. § 124.64(b) applies to modifications of effluent limitations under section 301 or 316 of the Clean Water Act; the relevant statutes and rules do not give the Board jurisdiction over EPA approval of water quality standards variance issued under CWA section 303(c) or 40 C.F.R. part 131. Accordingly, parties challenging EPA’s approval of water-quality standard variances in state-issued NPDES permits will need to bring their challenge directly to federal district court.

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