
[Federal Register Volume 82, Number 5 (Monday, January 9, 2017)]
[Rules and Regulations]
[Pages 2230-2237]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-31638]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 22 and 124

[FRL-9956-53-OARM]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: This final rule revises the Environmental Protection Agency's 
(``EPA'') Consolidated Rules of Practice governing the administrative 
assessment

[[Page 2231]]

of civil penalties and various other administrative adjudicatory 
hearings. These revisions simplify the administrative processing of 
cases by removing inconsistencies, codifying electronic filing and 
service procedures, and streamlining the procedures in cases initiated 
at EPA Headquarters. This rule also corrects some punctuation 
typographical errors found in the Consolidated Rules of Practice. This 
rule similarly revises EPA's procedures governing decisionmaking in 
permit appeals. These amendments are procedural in nature and none of 
these changes are intended to substantively alter the Agency's 
administrative enforcement actions or review of permit appeals.

DATES: This rule is effective on March 10, 2017.

FOR FURTHER INFORMATION CONTACT: Michael B. Wright, Office of 
Administrative Law Judges, U.S. Environmental Protection Agency, Ronald 
Reagan Building, Room M1200, 1300 Pennsylvania Ave. NW., Washington, DC 
20004, phone number (202) 564-3247 or by email at 
wright.michaelb@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. Why is the EPA issuing this rule in final form without first issuing 
a proposal?

    Today's final rule is limited to procedural requirements for 
administrative adjudicatory hearings and appeals from such hearings and 
from permit decisions. Under the Administrative Procedure Act, an 
agency may issue ``rules of agency organization, procedure, or 
practice'' without first proposing such rules for public comment. 5 
U.S.C. 553(b). Accordingly, public comment is not required.

II. Does this action apply to me?

    This action affects parties involved in EPA administrative 
adjudicatory proceedings for the assessment of civil penalties, 
issuance of various compliance orders, and termination or suspension of 
certain permits, under part 22 of title 40 of the CFR. See 40 CFR 22.1. 
This action also affects parties involved in appeal of EPA permits 
under part 124 of title 40 of the CFR.

III. Summary of Rule

A. Background: The EPA's Consolidated Rules of Practice in Part 22 and 
the EPA's Rules for Procedures for Decisionmaking on Permits in Part 
124

    Part 22 of Title 40 of the CFR establishes procedures governing 
administrative adjudicatory proceedings to assess administrative civil 
penalties, to issue various compliance orders, and to terminate or 
suspend certain permits. 40 CFR 22.1. These proceedings are conducted 
under a variety of environmental statutes, including the Clean Air Act, 
the Clean Water Act, the Solid Waste Disposal Act, and the Federal 
Insecticide, Fungicide, and Rodenticide Act, among others. Such cases 
are generally heard by the Administrative Law Judges (ALJs) within the 
EPA's Office of Administrative Law Judges or Regional Judicial 
Officers. The part 22 regulations are titled the ``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'' (``Rules of Practice'').
    The EPA promulgated the Rules of Practice to establish uniform 
procedural rules for administrative proceedings required to be held on 
the record after opportunity for a hearing in accordance with section 
554 of the Administrative Procedure Act, 5 U.S.C. 551 et seq., see 40 
CFR part 22, subparts A-G, and administrative enforcement proceedings 
not governed by section 554, id. part 22, subpart I. Consolidated Rules 
of Practice, 45 FR 24360 (Apr. 9, 1980). The Rules of Practice also 
establish supplementary rules that recognize the unique procedural 
requirements of certain environmental statutes within the EPA's 
jurisdiction. See 40 CFR part 22, subpart H. Finally, the Rules of 
Practice establish procedures for appeals from decisions of the ALJs 
and Regional Judicial Officers to the Environmental Appeals Board. See 
id. part 22, subpart F.
    Part 124 of Title 40 of the CFR establishes rules governing the 
EPA's issuance, modification, and revocation of permits under the 
Resource Conservation and Recovery Act, the Underground Injection 
Control program of the Safe Drinking Water Act, the Prevention of 
Significant Deterioration program of the Clean Air Act, and the 
National Pollutant Discharge Elimination System program of the Clean 
Water Act. These permit rules include procedures for appealing permit 
decisions by the EPA's regional offices to the Environmental Appeals 
Board. See 40 CFR 124.19.

B. Amendments to Part 22 Procedures

    This action makes several minor changes to part 22 procedures. Many 
of these changes pertain to the electronic filing and service of 
documents.
    Filing and service. The EPA has amended the filing and service 
requirements to clarify how these requirements apply to electronic 
transmission of documents and to otherwise clarify filing and service 
requirements and make them more consistent with similar requirements in 
part 124.
    Section 22.5(a) currently allows a Presiding Officer or the 
Environmental Appeals Board to ``authorize'' filing of documents by 
``facsimile or electronic filing.'' 40 CFR 22.5(a). The EPA is amending 
this section to also allow a Presiding Officer or the Environmental 
Appeals Board to ``require'' filing by ``facsimile or an electronic 
filing system.'' Both the Office of the Administrative Law Judges and 
the Environmental Appeals Board have an operational electronic filing 
system. This section is also being amended to standardize the 
Environmental Appeals Board filing methods under part 22 with those 
currently in the EPA's permit regulations in part 124.
    Section 22.5(b)(2) is modified to allow parties to agree with other 
parties to service by facsimile or other electronic means, including 
but not necessarily limited to email. A party's consent to such methods 
of service must be in writing and the party must file acknowledgement 
of such consent with the Clerk for the Presiding Officer or the 
Environmental Appeals Board, whichever is appropriate. This section is 
also modified to allow the Presiding Officer or the Environmental 
Appeals Board to authorize or require that the parties serve each other 
by facsimile or other electronic means, including but not necessarily 
limited to email. To facilitate electronic service, Sec.  22.5(b)(4) is 
modified to require that a party include an email address in the first 
document it files in a proceeding.
    The EPA emphasizes that the rules on electronic delivery of 
documents differ depending on whether the document is being filed with 
an EPA adjudicatory tribunal or served on a party to the proceeding. In 
the case of filing a document in an EPA administrative proceeding, the 
Presiding Officer or the Environmental Appeals Board has the sole 
authority to authorize or require electronic filing, and only these 
entities may authorize or require electronic filing by facsimile or an 
electronic filing system. As to service of documents between parties, 
not only may the Presiding Officer or the Environmental Appeals Board 
authorize or require service by either facsimile or other electronic 
means, including but not necessarily limited to email, but the parties 
may agree to such forms of electronic service.

[[Page 2232]]

    Additionally, the EPA is revising Sec.  22.5(b) to clarify that in 
cases before the Environmental Appeals Board, documents a party files 
with the Board need not also be served on the Board.
    Section 22.6 is amended to allow the Regional Hearing Clerk, the 
Headquarters Hearing Clerk, or the Clerk of the Environmental Appeals 
Board to serve rulings, orders, decisions, or other documents by 
electronic means (including but not necessarily limited to facsimile 
and email).
    Section 22.7(c) addresses when service is considered complete and 
includes a provision allowing an additional period of time for response 
to documents served using certain procedures. Id. Sec.  22.7(c). The 
EPA has amended this section to specify that when documents are served 
by facsimile or other electronic means, the service will be complete 
upon transmission. This approach is similar to that in Rule 5(b) of the 
Federal Rules of Civil Procedure. Fed. R. Civ. P. 5(b).
    The EPA has also modified the so-called ``mailbox rule'' in Sec.  
22.7(c) providing for additional days to respond to documents served 
using certain procedures. As modified, the revised mailbox rule in 
Sec.  22.7(c) allows an additional three days to the time allowed for 
response to documents served by U.S. mail, the EPA's internal mail,\1\ 
or commercial delivery service. Three additional days are not allowed 
for a response when a document to be responded to is served by personal 
delivery or electronic means (e.g., facsimile or email). This change 
allows additional days where needed, but recognizes that extra days for 
delivery are not needed where same-day delivery is utilized. Further, 
this change makes part 22 consistent with the Federal Rules of Civil 
Procedure, including changes made to the Rules effective December 1, 
2016. Rule 6(d) of the Federal Rules of Civil Procedure currently 
grants an additional three days when service is effectuated by U.S. 
mail, an agreed-to delivery service, or an electronic means. However, 
an amendment to Rule 6(d) that was effective December 1, 2016, removes 
electronic service from the types of service to which the additional 
three-day rule applies. Order (S. Ct. Apr. 28, 2016). This change was 
based on the conclusion that electronic service has become sufficiently 
reliable method of providing instantaneous delivery. Fed. R. Civ. P. 
6(d) advisory committee's note to 2016 amendment.
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    \1\ EPA has specifically included ``EPA internal mail'' in this 
revision to the mailbox rule because the Environmental Appeals Board 
previously ruled that a prior version of this provision referencing 
``certified mail'' did not cover a document served by EPA internal 
mail. In re Outboard Marine Corp., 6 E.A.D. 194, 197 (EAB 1995).
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    Presiding officer prior to respondent filing answer. Generally, the 
Presiding Officer in part 22 proceedings is an Administrative Law Judge 
except for proceedings under subpart I, which are not governed by 
section 554 of the Administrative Procedure Act. See 40 CFR 22.3 
(definition of ``Presiding Officer'') & subpart I. Regional Judicial 
Officers are the Presiding Officer under subpart I proceedings. Id. 
Sec.  22.51. The Environmental Appeals Board hears appeals from 
interlocutory orders and initial decisions of a Presiding Officer. Id. 
Sec.  22.29-22.30.
    However, sections 22.4(a) and 22.16(c) currently specify, among 
other things, that the Environmental Appeals Board will act as 
Presiding Officer in proceedings under part 22 commenced at EPA 
Headquarters until the respondent files an answer. Id. Sec. Sec.  
22.4(a), 22.16(c). In such proceedings, an Administrative Law Judge 
replaces the Environmental Appeals Board as the Presiding Officer once 
an answer is filed. Id. Sec.  22.16(c).
    This rule amendment modifies Sec.  22.4(a) and Sec.  22.16(c) to 
authorize an Administrative Law Judge to serve as the Presiding Officer 
in part 22 proceedings commenced at EPA Headquarters from the time a 
complaint is filed. The Environmental Appeals Board will no longer be 
assigned as a Presiding Officer for the period between the filing of a 
complaint and the filing of an answer. Rather, an Administrative Law 
Judge will serve as the Presiding Officer both prior to and after the 
filing of the answer. Removing the Environmental Appeals Board from the 
initial stage of enforcement proceedings will enhance the efficiency of 
proceedings commenced at EPA Headquarters because a single entity will 
exercise the role of Presiding Officer. This also eliminates the 
possibility that the Environmental Appeals Board could be asked to 
review on appeal its own decision on a preliminary motion (filed before 
an answer is filed).
    Other changes. Section 22.28 addresses motions to reopen a hearing. 
This rule modifies Sec.  22.28 to clarify the effect of filing such a 
motion and to expand the section to apply to motions to set aside a 
default order. The revised language clarifies that the filing of a 
motion to reopen a hearing tolls not only the time by when an initial 
decision becomes final or by when an appeal of an initial decision to 
the Environmental Appeals Board must be filed but also the time by 
which the Board must decide whether it is going to exercise its 
authority to hear the case on its own initiative. The revised language 
also applies similar requirements to a motion to set aside a default 
order.
    Additionally, the EPA is making a series of changes to Sec.  22.30 
to clarify various issues relating to appeals to the Environmental 
Appeals Board. See id. Sec.  22.30. Section 22.30 is modified to (1) 
explain how attachments to a notice of appeal, appellate brief, or 
response brief should be identified (Sec.  22.30(a)(1)(iii) and (2)); 
(2) impose word/page limitations for briefs and motions (Sec.  
22.30(a)(3)); (3) provide more consistency between Sec.  
22.30(a)(1)(iii) and Sec.  124.19(a)(4)(ii) pertaining to the need for 
parties' briefs to contain specific citations or other appropriate 
references (e.g., by including the document name and page number) 
(Sec.  22.30(a)(1)(iii) and (2)); (4) clarify that when the Board 
initiates review of an initial decision, it will identify any issues to 
be briefed and a schedule for briefing in its initial order of its 
intent to review or in a subsequent order (Sec.  22.30(b)); (5) clarify 
that the Board may request oral argument on its own initiative, how a 
party must request oral argument, and that the Board may establish 
additional oral argument procedures by order (Sec.  22.30(d)); (6) make 
explicit that the Board may act on a motion without awaiting a response 
(Sec.  22.30(e)(2)); and (7) explain the procedure for parties to 
request an extension of time (Sec.  22.30(e)(3)).

C. Amendments to Part 124 Procedures

    Most of the revisions to part 124 also concern filing and service 
issues. Section 124.19(i) addresses filing and service requirements in 
permit appeal proceedings before the Environmental Appeals Board. This 
section has been modified to add language clarifying when service is 
complete. Specifically, service is complete upon mailing for U.S. mail 
and EPA internal mail, when placed in the custody of a reliable 
commercial deliver service, or upon transmission for facsimile or 
email. This new language is similar to that in Rule 5(b)(2) of the 
Federal Rules of Civil Procedure and Environmental Appeals Board 
decisions. Fed. R. Civ. P. 5(b)(2); see In re Beckman Prod. Servs., 5 
E.A.D. 10, 15 (EAB 1994) (``When the Region serves a final permit 
decision by mail, service occurs upon mailing.''). The EPA has revised 
the language in Sec.  124.19(i)(3) to clarify that parties may agree to 
electronic service by facsimile, email, or other electronic means. The 
EPA has also revised Sec.  124.19(i)(3) to require that parties that 
consent to

[[Page 2233]]

service by electronic means file acknowledgement of that consent with 
the Environmental Appeals Board.
    The EPA has also made several changes to part 124 on service and 
filing that duplicate the changes made to part 22: (1) Requiring that a 
party's first filing contain an email address (Sec.  124.19(i)(3)(i)); 
(2) authorizing the Environmental Appeals Board to require that parties 
file documents by facsimile or through use of the Board's electronic 
filing system (Sec.  124.19(i)(2)); (3) allowing the Environmental 
Appeals Board to authorize or require that the parties serve each other 
by facsimile or other electronic means, including email (Sec.  
124.19(i)(3)(ii)); and (4) authorizing the Board to serve rulings, 
orders, and decisions on the parties by electronic means (including but 
not necessarily limited to facsimile and email). (Sec.  
124.19(i)(3)(iii).
    Section 124.19(b)(1) and (2) are modified so that the deadlines for 
filing a response to a petition for review are based on the date the 
petition is served, rather than filed. This provides for appropriate 
notice of the petition for review in advance of the deadline for a 
response.
    Similar to the changes made in the mailbox rule in Sec.  22.7(c), 
discussed above, the EPA has modified Sec.  124.20(d) to specify that 
three days are added to a prescribed period of time to act when service 
is made by U.S. mail, the EPA's internal mail, or a reliable, 
commercial delivery service. Three days are not added to the prescribed 
time to act when service is made by personal delivery or electronic 
transmission (e.g., facsimile or email).
    The EPA has also added word/page limitations to Sec.  124.19(f) for 
motions mirroring the word/page limitations added to Sec.  22.30. 
Finally, the EPA has amended Sec.  124.19(a)(4)(ii) and (b) to further 
clarify that parties are to provide in their briefs appropriate 
reference to the administrative record (e.g., by including the document 
name and page number) as to each issue raised.

IV. Statutory and Executive Order Reviews

A. Executive Orders 12866: Regulatory Planning and Review and 13563: 
Improving Regulation and Regulatory Review

    This action is exempt from review by the Office of Management and 
Budget (OMB) because it is limited to agency organization, management, 
or personnel matters.

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the PRA. This action will modify the EPA's procedural regulations 
governing administrative adjudicatory proceedings and appeals of 
adjudicatory proceedings and permit decisions to allow flexibility in 
the methods of serving and issuing documents and to promote efficiency 
in allocation of judicial resources. Specifically, the modifications to 
the Rules of Practice will codify the electronic service of documents 
between parties and by EPA adjudicative bodies. In addition, the 
modifications will facilitate the efficient issuance of rulings on 
motions by substituting an Administrative Law Judge for the 
Environmental Appeals Board to serve as the presiding officer in civil 
penalty cases initiated at EPA Headquarters before an answer is filed.

C. Regulatory Flexibility Act

    This action is not subject to the RFA. The RFA applies only to 
rules subject to notice and comment rulemaking requirements under the 
Administrative Procedure Act (APA), 5 U.S.C. 553, or any other statute. 
This rule pertains to agency management or personnel, which the APA 
expressly exempts from notice and comment rulemaking requirements under 
5 U.S.C. 553(a)(2).

D. Unfunded Mandates Reform Act

    This action does not contain any unfunded mandate as described in 
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect 
small governments. The action imposes no enforceable duty on any state, 
local or tribal governments or the private sector.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effect on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications, as specified in 
Executive Order 13175. This action will modify the EPA's procedural 
regulations governing administrative adjudicatory proceedings and 
appeals of adjudicatory proceedings and permit decisions to allow 
flexibility in the methods of serving and issuing documents and to 
promote efficiency in allocation of judicial resources. Thus, Executive 
Order 13175 does not apply to this action.

G. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    The EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern environmental health or safety risks 
that the EPA has reason to believe may disproportionately affect 
children, per the definition of ``covered regulatory action'' in 
section 2-202 of the Executive Order. This action is not subject to 
Executive Order 13045 because it does not concern an environmental 
health risk or safety risk.

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This action is not subject to Executive Order 13211 because it is 
not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer Advancement Act

    This rulemaking does not involve technical standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    The EPA believes that this action does not have disproportionately 
high and adverse human health or environmental effects on minority 
populations, low-income populations and/or indigenous peoples, as 
specified in Executive Order 12898 (59 FR 7629, February 16, 1994). 
This action will modify the EPA's procedural regulations governing 
administrative adjudicatory proceedings and appeals of adjudicatory 
proceedings and permit decisions to allow flexibility in the methods of 
serving and issuing documents and to promote efficiency in allocation 
of judicial resources.

K. Congressional Review Act

    This rule is exempt from the CRA because it is a rule relating to 
agency management or personnel.

List of Subjects

40 CFR Part 22

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Hazardous substances, Hazardous waste, 
Penalties, Pesticides and pests, Poison prevention, Water pollution 
control.

40 CFR Part 124

    Environmental protection, Administrative practice and procedures.


[[Page 2234]]


    Dated: December 20, 2016.
Gina McCarthy,
Administrator.

    For the reasons set out in the preamble, 40 CFR parts 22 and 124 
are amended as follows:

PART 22--CONSOLIDATED RULES OF PRACTICE GOVERNING THE 
ADMINISTRATIVE ASSESSMENT OF CIVIL PENALTIES AND THE REVOCATION/
TERMINATION OR SUSPENSION OF PERMITS

0
1. The authority citation for part 22 is revised to read as follows:

    Authority:  7 U.S.C. 1361; 15 U.S.C. 2615; 33 U.S.C. 1319, 1342, 
1361, 1415 and 1418; 42 U.S.C. 300g-3(g), 6912, 6925, 6928, 6991e 
and 6992d; 42 U.S.C. 7413(d), 7524(c), 7545(d), 7547, 7601 and 
7607(a), 9609, and 11045.

Subpart A--General

0
2. In Sec.  22.4, revise the first sentence of paragraph (a)(1) to read 
as follows:


Sec.  22.4  Powers and duties of the Environmental Appeals Board, 
Regional Judicial Officer and Presiding Officer; disqualification, 
withdrawal, and reassignment.

    (a) Environmental Appeals Board. (1) The Environmental Appeals 
Board rules on appeals from the initial decisions, rulings and orders 
of a Presiding Officer in proceedings under these Consolidated Rules of 
Practice, and approves settlement of proceedings under these 
Consolidated Rules of Practice commenced at EPA Headquarters. * * *
* * * * *

0
3. In Sec.  22.5, revise the section heading and paragraphs (a)(1), (b) 
introductory text, (b)(2), and (c)(4) to read as follows:


Sec.  22.5   Filing, service by the parties, and form of all filed 
documents; business confidentiality claims.

    (a) Filing of documents. (1) The original and one copy of each 
document intended to be part of the record shall be filed with the 
Headquarters or Regional Hearing Clerk, as appropriate, when the 
proceeding is before the Presiding Officer, or filed with the Clerk of 
the Board when the proceeding is before the Environmental Appeals 
Board. A document is filed when it is received by the appropriate 
Clerk. When a document is required to be filed with the Environmental 
Appeals Board, the document shall be sent to the Clerk of the Board by 
U.S. Mail, delivered by hand or courier (including delivery by U.S. 
Express Mail or by a commercial delivery service), or transmitted by 
the Environmental Appeal Board's electronic filing system, according to 
the procedures specified in 40 CFR 124.19 (i)(2)(i), (ii), and (iii). 
The Presiding Officer or the Environmental Appeals Board may by order 
authorize or require filing by facsimile or an electronic filing 
system, subject to any appropriate conditions and limitations.
* * * * *
    (b) Service of documents. Unless the proceeding is before the 
Environmental Appeals Board, a copy of each document filed in the 
proceeding shall be served on the Presiding Officer and on each party. 
In a proceeding before the Environmental Appeals Board, a copy of each 
document filed in the proceeding shall be served on each party.
* * * * *
    (2) Service of filed documents other than the complaint, rulings, 
orders, and decisions. All documents filed by a party other than the 
complaint, rulings, orders, and decisions shall be served by the filing 
party on all other parties. Service may be made personally, by U.S. 
mail (including certified mail, return receipt requested, Overnight 
Express and Priority Mail), by any reliable commercial delivery 
service, or by facsimile or other electronic means, including but not 
necessarily limited to email, if service by such electronic means is 
consented to in writing. A party who consents to service by facsimile 
or email must file an acknowledgement of its consent (identifying the 
type of electronic means agreed to and the electronic address to be 
used) with the appropriate Clerk. In addition, the Presiding Officer or 
the Environmental Appeals Board may by order authorize or require 
service by facsimile, email, or other electronic means, subject to any 
appropriate conditions and limitations.
    (c) * * *
    (4) The first document filed by any person shall contain the name, 
mailing address, telephone number, and email address of an individual 
authorized to receive service relating to the proceeding on behalf of 
the person. Parties shall promptly file any changes in this information 
with the Headquarters or Regional Hearing Clerk or the Clerk of the 
Board, as appropriate, and serve copies on the Presiding Officer and 
all parties to the proceeding. If a party fails to furnish such 
information and any changes thereto, service to the party's last known 
address shall satisfy the requirements of paragraph (b)(2) of this 
section and Sec.  22.6.
* * * * *

0
4. Revise Sec.  22.6 to read as follows:


Sec.  22.6  Filing and service of rulings, orders and decisions.

    All rulings, orders, decisions, and other documents issued by the 
Regional Administrator or Presiding Officer shall be filed with the 
Headquarters or Regional Hearing Clerk, as appropriate, in any manner 
allowed for the service of such documents. All rulings, orders, 
decisions, and other documents issued by the Environmental Appeals 
Board shall be filed with the Clerk of the Board. The Clerk of the 
Board, the Headquarters Hearing Clerk, or the Regional Hearing Clerk, 
as appropriate, must serve copies of such rulings, orders, decisions 
and other documents on all parties. Service may be made by U.S. mail 
(including by certified mail or return receipt requested, Overnight 
Express and Priority Mail), EPA's internal mail, any reliable 
commercial delivery service, or electronic means (including but not 
necessarily limited to facsimile and email).

0
5. In Sec.  22.7, revise paragraph (c) to read as follows:


Sec.  22.7  Computation and extension of time.

* * * * *
    (c) Completion of service. Service of the complaint is complete 
when the return receipt is signed. Service of all other documents is 
complete upon mailing, when placed in the custody of a reliable 
commercial delivery service, or for facsimile or other electronic 
means, including but not necessarily limited to email, upon 
transmission. Where a document is served by U.S. mail, EPA internal 
mail, or commercial delivery service, including overnight or same-day 
delivery, 3 days shall be added to the time allowed by these 
Consolidated Rules of Practice for the filing of a responsive document. 
The time allowed for the serving of a responsive document is not 
expanded by 3 days when the served document is served by personal 
delivery, facsimile, or other electronic means, including but not 
necessarily limited to email.

Subpart C--Prehearing Procedures

0
6. In Sec.  22.16, revise paragraph (c) to read as follows:


Sec.  22.16  Motions.

* * * * *
    (c) Decision. The Regional Judicial Officer (or in a proceeding 
commenced at EPA Headquarters, an Administrative Law Judge) shall rule 
on all motions filed or made before an answer to the complaint is 
filed. Except as provided in Sec. Sec.  22.29(c) and 22.51, an 
Administrative Law Judge shall rule on all motions filed or made after 
an answer is filed and

[[Page 2235]]

before an initial decision becomes final or has been appealed. The 
Environmental Appeals Board shall rule as provided in Sec.  22.29(c) 
and on all motions filed or made after an appeal of the initial 
decision is filed, except as provided pursuant to Sec.  22.28.
0
7. Revise the subpart E heading to read as follows:

Subpart E--Initial Decision, Motion To Reopen a Hearing, and Motion 
To Set Aside a Default Order

0
8. Revise Sec.  22.28 to read as follows:


Sec.  22.28   Motion to reopen a hearing or to set aside a default 
order.

    (a) Motion to reopen a hearing--(1) Filing and content. A motion to 
reopen a hearing to take further evidence must be filed no later than 
20 days after service of the initial decision and shall state the 
specific grounds upon which relief is sought. Where the movant seeks to 
introduce new evidence, the motion shall: State briefly the nature and 
purpose of the evidence to be adduced; show that such evidence is not 
cumulative; and show good cause why such evidence was not adduced at 
the hearing. The motion shall be made to the Presiding Officer and 
filed with the Headquarters or Regional Hearing Clerk, as appropriate. 
A copy of the motion shall be filed with the Clerk of the Board in the 
manner prescribed by Sec.  22.5(a)(1).
    (2) Disposition of motion to reopen a hearing. Within 15 days 
following the service of a motion to reopen a hearing, any other party 
to the proceeding may file with the Headquarters or Regional Hearing 
Clerk, as appropriate, and serve on all other parties a response. A 
reopened hearing shall be governed by the applicable sections of these 
Consolidated Rules of Practice. The timely filing of a motion to reopen 
a hearing shall automatically toll the running of the time periods for 
an initial decision becoming final under Sec.  22.27(c), for appeal 
under Sec.  22.30, and for the Environmental Appeals Board to elect to 
review the initial decision on its own initiative pursuant to Sec.  
22.30(b). These time periods begin again in full when the Presiding 
Officer serves an order denying the motion to reopen the hearing or an 
amended decision. The Presiding Officer may summarily deny subsequent 
motions to reopen a hearing filed by the same party if the Presiding 
Officer determines that the motion was filed to delay the finality of 
the decision.
    (b) Motion to set aside default order--(1) Filing and content. A 
motion to set aside a default order must be filed no later than 20 days 
after service of the initial decision and shall state the specific 
grounds upon which relief is sought. The motion shall be made to the 
Presiding Officer and filed with the Headquarters or Regional Hearing 
Clerk, as appropriate. A copy of the motion shall be filed with the 
Clerk of the Board in the manner prescribed by Sec.  22.5(a)(1).
    (2) Effect of motion to set aside default. The timely filing of a 
motion to set aside a default order automatically tolls the running of 
the time periods for an initial decision becoming final under Sec.  
22.27(c), for appeal under Sec.  22.30(a), and for the Environmental 
Appeals Board to elect to review the initial decision on its own 
initiative pursuant to Sec.  22.30(b). These time periods begin again 
in full when the Presiding Officer serves an order denying the motion 
to set aside or an amended decision. The Presiding Officer may 
summarily deny subsequent motions to set aside a default order filed by 
the same party if the Presiding Officer determines that the motion was 
filed to delay the finality of the decision.

Subpart F--Appeals and Administrative Review

0
9. In Sec.  22.30, revise paragraphs (a), (b), (c), (d), and (e) to 
read as follows:


Sec.  22.30  Appeal from or review of initial decision.

    (a) Notice of appeal and appeal brief--(1) Filing an appeal--(i) 
Filing deadline and who may appeal. Within 30 days after the initial 
decision is served, any party may file an appeal from any adverse order 
or ruling of the Presiding Officer.
    (ii) Filing requirements. Appellant must file a notice of appeal 
and an accompanying appellate brief with the Environmental Appeals 
Board as set forth in Sec.  22.5(a). One copy of any document filed 
with the Clerk of the Board shall also be served on the Headquarters or 
Regional Hearing Clerk, as appropriate. Appellant also shall serve a 
copy of the notice of appeal upon the Presiding Officer. Appellant 
shall simultaneously serve one copy of the notice and brief upon all 
other parties and non-party participants.
    (iii) Content. The notice of appeal shall summarize the order or 
ruling, or part thereof, appealed from. The appellant's brief shall 
contain tables of contents and authorities (with appropriate page 
references), a statement of the issues presented for review, a 
statement of the nature of the case and the facts relevant to the 
issues presented for review (with specific citation or other 
appropriate reference to the record (e.g., by including the document 
name and page number)), argument on the issues presented, a short 
conclusion stating the precise relief sought, alternative findings of 
fact, and alternative conclusions regarding issues of law or 
discretion. If any appellant includes attachments to its notice of 
appeal or appellate brief, the notice of appeal or appellate brief 
shall contain a table that provides the title of each appended document 
and assigns a label identifying where it may be found in the record.
    (iv) Multiple appeals. If a timely notice of appeal is filed by a 
party, any other party may file a notice of appeal and accompanying 
appellate brief on any issue within 20 days after the date on which the 
first notice of appeal was served or within the time to appeal in 
paragraph (a)(1)(i) of this section, whichever period ends later.
    (2) Response brief. Within 20 days of service of notices of appeal 
and briefs under paragraph (a)(1) of this section, any other party or 
non-party participant may file with the Environmental Appeals Board an 
original and one copy of a response brief responding to arguments 
raised by the appellant, together with specific citation or other 
appropriate reference to the record, initial decision, and opposing 
brief (e.g., by including the document name and page number). Appellee 
shall simultaneously serve one copy of the response brief upon each 
party, non-party participant, and the Regional Hearing Clerk. Response 
briefs shall be limited to the scope of the appeal brief. If any 
responding party or non-party participant includes attachments to its 
response brief, the response brief shall contain a table that provides 
the title of each appended document and assigns a label identifying 
where it may be found in the record. Further briefs may be filed only 
with leave of the Environmental Appeals Board.
    (3) Length--(i) Briefs. Unless otherwise ordered by the 
Environmental Appeals Board, appellate and response briefs may not 
exceed 14,000 words, and all other briefs may not exceed 7000 words. 
Filers may rely on the word-processing system used to determine the 
word count. As an alternative to this word limitation, filers may 
comply with a 30-page limit for appellate and response briefs, or a 15-
page limit for replies. Headings, footnotes, and quotations count 
toward the word limitation. The table of contents, table of 
authorities, table of attachments (if any), statement requesting oral 
argument (if any), statement of compliance with the word limitation, 
and any attachments do not count toward the word or page-length 
limitation. The Environmental

[[Page 2236]]

Appeals Board may exclude any appeal, response, or other brief that 
does not meet word or page-length limitations. Where a party can 
demonstrate a compelling and documented need to exceed such 
limitations, such party must seek advance leave of the Environmental 
Appeals Board to file a longer brief. Such requests are discouraged and 
will be granted only in unusual circumstances.
    (ii) Motions. Unless otherwise ordered by the Environmental Appeals 
Board, motions and any responses or replies may not exceed 7000 words. 
Filers may rely on the word-processing system used to determine the 
word count. As an alternative to this word limitation, filers may 
comply with a 15-page limit. Headings, footnotes, and quotations count 
toward the word or page-length limitation. The Environmental Appeals 
Board may exclude any motion that does not meet word limitations. Where 
a party can demonstrate a compelling and documented need to exceed such 
limitations, such party must seek advance leave of the Environmental 
Appeals Board. Such requests are discouraged and will be granted only 
in unusual circumstances.
    (b) Review initiated by the Environmental Appeals Board. Whenever 
the Environmental Appeals Board determines to review an initial 
decision on its own initiative, it shall issue an order notifying the 
parties and the Presiding Officer of its intent to review that 
decision. The Clerk of the Board shall serve the order upon the 
Regional Hearing Clerk, the Presiding Officer, and the parties within 
45 days after the initial decision was served upon the parties. In that 
order or in a later order, the Environmental Appeals Board shall 
identify any issues to be briefed by the parties and establish a time 
schedule for filing and service of briefs.
    (c) Scope of appeal or review. The parties' rights of appeal shall 
be limited to those issues raised during the course of the proceeding 
and by the initial decision, and to issues concerning subject matter 
jurisdiction. If the Environmental Appeals Board determines that issues 
raised, but not appealed by the parties, should be argued, it shall 
give the parties written notice of such determination to allow 
preparation of adequate argument. The Environmental Appeals Board may 
remand the case to the Presiding Officer for further proceedings.
    (d) Argument before the Environmental Appeals Board. The 
Environmental Appeals Board may, at its discretion in response to a 
request or on its own initiative, order oral argument on any or all 
issues in a proceeding. To request oral argument, a party must include 
in its substantive brief a statement explaining why oral argument is 
necessary. The Environmental Appeals Board may, by order, establish 
additional procedures governing any oral argument before the 
Environmental Appeals Board.
    (e) Motions on appeal--(1) General. All motions made during the 
course of an appeal shall conform to Sec.  22.16 unless otherwise 
provided. In advance of filing a motion, parties must attempt to 
ascertain whether the other party(ies) concur(s) or object(s) to the 
motion and must indicate in the motion the attempt made and the 
response obtained.
    (2) Disposition of a motion for a procedural order. The 
Environmental Appeals Board may act on a motion for a procedural order 
at any time without awaiting a response.
    (3) Timing on motions for extension of time. Parties must file 
motions for extensions of time sufficiently in advance of the due date 
to allow other parties to have a reasonable opportunity to respond to 
the request for more time and to provide the Environmental Appeals 
Board with a reasonable opportunity to issue an order.
* * * * *

PART 124--PROCEDURES FOR DECISIONMAKING

0
10. The authority citation for part 124 continues to read as follows:

    Authority:  Resource Conservation and Recovery Act, 42 U.S.C. 
6901 et seq.; Safe Drinking Water Act, 42 U.S.C. 300f et seq.; Clean 
Water Act, 33 U.S.C. 1251 et seq.; Clean Air Act, 42 U.S.C. 7401 et 
seq.

Subpart A--General Program Requirements

0
11. In Sec.  124.19:
0
a. Revise the first sentence of paragraph (a)(4)(ii), and paragraph 
(b).
0
b. Redesignate paragraph (f)(5) as paragraph (f)(6).
0
c. Add a new paragraph (f)(5).
0
d. Revise paragraphs (i) introductory text, (i)(2) introductory text, 
and (3).
    The addition and revisions read as follows:


Sec.  124.19  Appeal of RCRA, UIC, NPDES and PSD Permits.

    (a) * * *
    (4) * * *
    (ii) Petitioners must demonstrate, by providing specific citation 
or other appropriate reference to the administrative record (e.g., by 
including the document name and page number), that each issue being 
raised in the petition was raised during the public comment period 
(including any public hearing) to the extent required by Sec.  124.13. 
* * *
    (b) Response(s) to a petition for review. (1) In a PSD or other new 
source permit appeal, the Regional Administrator must file a response 
to the petition for review, a certified index of the administrative 
record, and the relevant portions of the administrative record within 
21 days after the service of the petition. The response brief must 
respond to arguments raised by the appellant, together with specific 
citation or other appropriate reference to the record (e.g., by 
including the document name and page number).
    (2) In all other permit appeals under this section, the Regional 
Administrator must file a response to the petition, a certified index 
of the administrative record, and the relevant portions of the 
administrative record within 30 days after the service of a petition.
* * * * *
    (f) * * *
    (5) Length. Unless otherwise ordered by the Environmental Appeals 
Board, motions and any responses or replies may not exceed 7000 words. 
Filers may rely on the word-processing system used to determine the 
word count. In lieu of a word limitation, filers may comply with a 15-
page limit. Headings, footnotes, and quotations count toward the word 
or page-length limitation. The Environmental Appeals Board may exclude 
any motion that does not meet word limitations. Where a party can 
demonstrate a compelling and documented need to exceed such 
limitations, such party must seek advance leave of the Environmental 
Appeals Board. Such requests are discouraged and will be granted only 
in unusual circumstances.
* * * * *
    (i) Filing and service requirements. Documents filed under this 
section, including the petition for review, must be filed with the 
Clerk of the Environmental Appeals Board. A document is filed when it 
is received by the Clerk of the Environmental Appeals Board at the 
address specified for the appropriate method of delivery as provided in 
paragraph (i)(2) of this section. Service of a document between parties 
to an appeal or by the Environmental Appeals Board on a party is 
complete upon mailing for U.S. mail or EPA internal mail, when placed 
in the custody of a reliable commercial delivery service, or upon 
transmission for facsimile or email.
* * * * *
    (2) Method of filing. Unless otherwise permitted under these rules, 
documents

[[Page 2237]]

must be filed either by using the Environmental Appeals Board's 
electronic filing system, by U.S. mail, or by hand delivery. In 
addition, a motion or a response to a motion may be submitted by 
facsimile if the submission contains no attachments. Upon filing a 
motion or response to a motion by facsimile, the sender must, within 
one business day, submit the original copy to the Clerk of the 
Environmental Appeals Board either electronically, by mail, or by hand-
delivery. The Environmental Appeals Board may by order require filing 
by facsimile or the Board's electronic filing system, subject to any 
appropriate conditions and limitations.
* * * * *
    (3) Service--(i) Service information. The first document filed by 
any person shall contain the name, mailing address, telephone number, 
and email address of an individual authorized to receive service 
relating to the proceeding. Parties shall promptly file any changes in 
this information with the Clerk of the Environmental Appeals Board, and 
serve copies on all parties to the proceeding. If a party fails to 
furnish such information and any changes thereto, service to the 
party's last known address shall satisfy the requirements of paragraph 
(i)(3) of this section.
    (ii) Service requirements for parties. Petitioner must serve the 
petition for review on the Regional Administrator and the permit 
applicant (if the applicant is not the petitioner). Once an appeal is 
docketed, every document filed with the Environmental Appeals Board 
must be served on all other parties. Service must be by first class 
U.S. mail, by any reliable commercial delivery service, or, if agreed 
to by the parties, by facsimile or other electronic means, including 
but not necessarily limited to or email. A party who consents to 
service by facsimile or other electronic means must file an 
acknowledgement of its consent (identifying the type of electronic 
means agreed to and the electronic address to be used) with the Clerk 
of the Environmental Appeals Board. The Environmental Appeals Board may 
by order authorize or require service by facsimile, email, or other 
electronic means, subject to any appropriate conditions and 
limitations.
    (iii) Service of rulings, orders, and decisions. The Clerk of the 
Environmental Appeals Board must serve copies of rulings, orders, and 
decisions on all parties. Service may be made by U.S. mail (including 
by certified mail or return receipt requested, Overnight Express and 
Priority Mail), EPA's internal mail, any reliable commercial delivery 
service, or electronic means (including but not necessarily limited to 
facsimile and email).
* * * * *

0
12. In Sec.  124.20, revise paragraph (d) to read as follows:


Sec.  124.20  Computation of time.

* * * * *
    (d) When a party or interested person may or must act within a 
prescribed period after being served and service is made by U.S. mail, 
EPA's internal mail, or reliable commercial delivery service, 3 days 
shall be added to the prescribed time. The prescribed period for acting 
after being served is not expanded by 3 days when service is made by 
personal delivery, facsimile, or email.

[FR Doc. 2016-31638 Filed 1-6-17; 8:45 am]
 BILLING CODE 6560-50-P


