United States EPA-100-F-01-001
Environmental April 2001
Protection Agency (MC1103B)
Environmental
Appeals Board
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Environmental Appeals Board
The Environmental Appeals Board (EAB) of
the U.S. Environmental Protection Agency is
the final Agency decision maker on
administrative appeals under all major
environmental statutes that EPA administers. It is
an impartial, four-member body that is
independent of all Agency components outside the
immediate Office of the Administrator. It was
created in 1992 in recognition of the growing
importance of EPA adjudicatory proceedings as a
mechanism for implementing and enforcing the
environmental laws.
The EAB's caseload consists primarily of
appeals from permit decisions and civil penalty
decisions. The EAB has authority to hear permit
and civil penalty appeals in accordance with
regulations delegating this authority from the EPA
Administrator Appeals from permit decisions
made by EPA's Regional Administrators (and in
some cases, state permitting officials) may be filed
either by permittees or other interested persons. A
grant of review of a permit decision is at the EAB's
discretion. Permit appeals are governed primarily
by procedural regulations at 40 C.F.R. Part 124
(2000). Appeals of civil penalty decisions made by
EPA's administrative law judges may be filed, as
a matter of right, either by private parties or by
EPA. Penalty appeals are governed primarily by
the Consolidated Rules of Practice (CROP) at 40
C.F.R. Part 22 (1999).
An additional portion of the EAB's caseload
consists of petitions for reimbursement of costs
incurred in complying with cleanup orders issued
under the Comprehensive Environmental
Response, Compensation, and Liability Act of
1980 (CERCLA). The EAB decides these matters
pursuant to a delegation of authority from the
Administrator. The EAB is also authorized to hear
appeals from various administrative decisions
under the Clean Air Act's acid rain program at 40
C.F.R. Part 78.
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EAB Decisionmaking Process
The EAB typically sits in three-member panels
and decides each matter by majority vote.
Concurring or dissenting opinions may be
issued as appropriate.
Most cases are decided without oral argument,
based on the administrative record and on written
briefs submitted by the parties. However, an oral
argument may be scheduled, on motion by any
party or at the EAB's initiative, where the EAB
decides that it will assist in decisionmaking. A
schedule of oral arguments may be obtained from
the Clerk of the Board.
EAB Jurisdiction
All major environmental statutes that EPA
administers, including.
Clean Air Act
Clean Water Act
Comprehensive Environmental
Response, Compensation, and Liability
Act
Emergency Planning and Community
Right-to-Know Act
Federal Insecticide. Fungicide, and
Rodenticide Act
Marine Protection, Research, and
Sanctuaries Act
Safe Drinking Water Act
Solid Waste Disposal Act (RCRA)
Toxic Substances Control Act
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Environmental Appeals Judges
The EAB consists of four Environmental
Appeals Judges appointed by the
Administrator from the career Senior
Executive Service:
Judge Scott C. Fulton served as EPA's Acting
General Counsel and Principal Deputy General
Counsel and formerly as Deputy Assistant
Administrator for EPA's Office of Enforcement and
Compliance Assurance. He has also served as a
trial attorney and supervising attorney in the
Environmental and Natural Resources Division of
the U.S. Department of Justice.
Judge Ronald L. McCallum served as the
Administrator's Chief Judicial Officer before being
named to the EAB in 1992. He has also served as
Judicial Officer in the Office of the Administrator,
and as Senior Trial Attorney in the Office of
General Counsel. He was an attorney in private
practice before joining EPA in 1974.
Judge Edward E. Reich served as Legal Advisor
to the Administrator and as Acting Assistant
Administrator and Deputy Assistant Administrator
in EPA's Office of Enforcement. As Deputy
Assistant Administrator, he was the senior career
officer in the Office of Enforcement responsible for
managing EPA's environmental litigation.
Judge Kathie A. Stein served as Director of
EPA's RCRA and Air Enforcement divisions within
the Office of Enforcement and Compliance
Assurance and as Acting Regional Counsel for
EPA Region III. Before joining EPA, she held
positions with the U.S. Department of Justice, the
Environmental Defense Fund, and the Maryland
Attorney General's Office and engaged in the
private practice of law.
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EAB Counsel and Staff
Counsel to the Board. Eleven experienced
attorneys serve as counsel to the Board: Richard
L. Albores, Nivea R. Berrios, Jasmine M.
Chapman, Carlos D. Da Rosa, Timothy R. Epp,
Danielle C. Fidler, David R. Heckler, Leslie A.
Kirby-Miles, Mary E. Sirianni, Alice P. Wegman,
and Michelle A. Wenzel. Counsel assist the Board
in reviewing the administrative record, analyzing
applicable law and Agency policy, and preparing
formal written opinions. They are available tq
answer questions from litigants and the general
public about the appeals process.
EAB Staff: Clerk of the Board, Eurika Durr; Staff
Assistant, Mildred T. Johnson; Secretary, Annette
Duncan.
EAB on the Web
The EAB maintains a World Wide Web site, at
http://www.epa.gov/eab, which contains the
full text of all formal written opinions issued
by the EAB, additional information about EAB
procedures, and data on federal court decisions
and pending federal court cases on appeal from an
EAB decision.
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Selected Highlights: 2000
Tennessee Valley Authority, sustaining in part
and vacating in part an administrative compliance
order issued by Region IV underthe Clean Air Act,
finding that changes made to 14 of TVA's coal-
fired generating units were "physical changes" that
did not fall within the "routine maintenance, repair
or replacement" exception under the new source
permitting programs, and that TVA had violated
some but not all of the new source requirements
alleged in the order.
Rogers Corp., affirming the ALJ's accelerated
decision as to liability and subsequent imposition
of a $281,400 penalty on Rogers for improperly
disposing of PCBs, and holding, in part, that the
Board's review of the accelerated decision as to
liability is generally limited to the evidence in the
record at the time the accelerated decision is
made, that the "law of the case" doctrine supports
the ALJ's determination not to later revisit the
liability decision, that the exemption from
regulation for historic PCB-disposal sites must be
raised as an affirmative defense, and that due
process is not violated by the imposition of civil
administrative penalties in addition to already-
incurred clean-up costs.
Du Pont de Nemours & Co., holding that
communications by EPA personnel not
referenced on the face of EPA's formal letters
granting registration approval cannot modify or
alter the clear, unambiguous terms of EPA's
formal approval; and that, despite the approval,
the registration does not bar EPA from charging
that the labeling is misbranded; and remanding
the case to allow Du Pont to submit additional
rebuttal evidence to support its position that the
labeling was not misbranded.
U.S. Department of Navy, Kingsville Naval Air
Station, dismissing Region Vl's complaint against
the Navy on the ground that the Region may
not assess penalties against the Navy for
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noncompliance with the "Disclosure Rule"
promulgated under the Residential Lead-Based
Paint Hazard Reduction Act of 1992 until it amends
the Disclosure Rule to include a legally binding
interpretation of the terms "lease" and "contract to
lease" that encompasses assignment of housing by
the military to its military personnel.
EAB Formal Opinions: 2000
Caribe Gen. Elec. Prods., Inc., RCRA Appeal No
98-3 (Feb 4, 2000), Order on Recons (Oct. 23,
2000) (appeal docketed 1st Cir May 4, 2000)
V-1 Oil Co., RCRA (9006) Appeal No. 99-1 (Feb.
25, 2000)
Knauf Fiber Glass, GmbH, PSD Appeal Nos 99-8
through 99-72 (Mar 14, 2000)
U.S Dep't of Navy, Kingsville Naval Air Station.
TSCA Appeal No 99-2 (Mar 17, 2000)
Du Pont de Nemours & Co., FIFRA Appeal No 98-2
(Apr 3, 2000)
. BWX Techs , Inc., RCRA (3008) Appeal No
97-5 (Apr 5, 2000)
Peppered Assocs , CWA Appeal Nos 99-1 &
99-2 (May 10, 2000) (appeal docketed 1st Ctr June
9, 2000)
Chempace Corp., FIFRA Appeal Nos 99-2 & 99-3
(May 18, 2000)
. Tifa Ltd., FIFRA Appeal No. 99-5 (June 5,
2000)
Steel Dynamics, Inc., PSD Appeal Nos. 99-4 &
99-5 (June 22, 2000)
Puna Geothermal Venture, UIC Appeal Nos
99-2 etal (June 27, 2000)
American Soda, LL P , UIC Appeal Nos 00-1 &
00-2 (June 30, 2000)
Sprtzer Great Lakes Ltd , TSCA Appeal No 99-3
(June 30, 2000)
Sultan Chemists, Inc., FIFRA Appeal No. 99-7 (Sept
13, 2000) (appeal docketed 3d Cir Nov 6, 2000)
Tennessee Valley Auth, CAA Docket No. 00-6
(Sept 15, 2000) (appeals docketed 11th Cir
Nov 13, Nov. 28, 2000)
Rohm & Haas Co., RCRA Appeal No. 98-2 (Oct 5,
2000)
City of Phoenix, NPDES Appeal No 99-2
(Nov 1,2000)
Rogers Corp., TSCA Appeal No. 98-1 (Nov. 28,
2000) (appeal docketed D.C Cir. Dec. 22, 2000)
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Availability of EAB Formal Opinions
and EAB Practice Manual
The EAB issues formal written opinions in
selected cases. These opinions are
published in a series of bound volumes titled
Environmental Administrative Decisions (E.A.D.),
which may be purchased from the U.S.
Superintendent of Documents (tel. (202) 512-
1800). Volumes 1-4 of the E.A.D. are sold as a
set (Order No. 055-000-00533-8). Volumes 1, 2,
and 3 contain 300 selected pre-EAB opinions
issued between 1972 and 1992. Volume 4
contains EAB opinions issued from March 1992 to
December 1993. Volumes 5 (Order No. 055-000-
00545-1), 6 (Order No. 055-000-00583-4), and 7
(Order No. 055-000-00628-8) contain EAB
opinions issued from January 1994 through July
1998, and may be purchased individually. Volume
8 will contain opinions issued from September
1998 through February 2000.
The full text of all formal EAB opinions may
also be accessed electronically at the EAB's World
Wide Web site. Individual copies of pre-EAB and
EAB decisions may be obtained from the Clerk of
the Board. EAB decisions are also commercially
available through LEXIS* WESTLAW*, the EPA
Administrative Law Reporter, the ELI
Environmental Law Reporter, and EPA Shadow
Law.
Copies of the EAB Practice Manual (Nov.
1994), as supplemented in Oct. 1997, and the
EAB's procedural guidance manual for CERCLA
§106(b) petitions (revised Oct. 1996) may be
obtained from the Clerk of the Board. A revised
version of the EAB Practice Manual will be
available later this year.
Clerk of the Board
607 14th Street, N.W., Suite 500
Washington, D.C. 20005
(202)501-7060 8:30 a.m.-4:30 p.m.
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