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EPA Finalizes Rule to Speed Up Disputes Over Permitting (1)

July 22, 2020, 8:44 PM; Updated: July 23, 2020, 9:19 PM

The EPA issued a final rule Wednesday that speeds up permit disputes that go before its Environmental Appeals Board.

The changes match up with the Trump administration’s broad effort to speed up environmental permitting, which the administration says will boost economic growth.

In its proposed form, the Environmental Protection Agency’s rule aimed to settle disputes faster by giving parties the choice of using either alternative dispute resolution (ADR) or a hearing before the appeals board.

If all parties don’t unanimously agree, the permit would become final but could still be challenged in federal court, the EPA said. The final rule dropped the ADR component.

60-Day Extension

According to an EPA announcement, the final rule clarifies the EAB’s scope of review and establishes a 60-day deadline for the board to issue a final decision once an appeal has been fully briefed and argued, with a one-time 60 day extension.

The rule also limits filing extensions to one request per party, with a maximum extension of 30 days. The full text wasn’t immediately available.

“Over the years, the scope of responsibilities for EPA’s EAB has changed and the permitting appeal has become too lengthy,” agency Administrator Andrew Wheeler said in a statement.

“Making the reviews more streamlined and the judicial review more prompt will lead to better certainty and a fairer process for both those applying for EPA permits and for the public,” he said.

‘Silence the Voices’

The EAB’s role in permit appeals has changed over time, as more states and tribes have taken on permitting authority, the agency said.

Environmentalists and their Democratic allies in Congress have long argued that the administration is trying to ram projects through without proper vetting, and to limit communities’ right to contest permits.

Democratic Sen. Tom Carper of Delaware on Wednesday made a last-ditch plea for the EPA to abandon the changes, arguing that narrowing the scope of Environmental Appeals Board reviews would disadvantage environmental justice communities and others affected by pollution.

“It would silence the voices of affected communities by imposing new limits on who and what can be heard in permit appeals, in violation of both an existing Executive Order that mandates consideration of environmental justice impacts in permits and the Clean Air Act,” he wrote in a letter to Wheeler.

EPA’s final rule excluded the proposal about which Carper was concerned. It would have sent some cases into an alternative dispute resolution process, instead of going before the EAB. Carper also expressed opposition to other provisions that made the final cut.

(Updates July 22 story to add information about final rule text in last paragraph.)

To contact the reporter on this story: Stephen Lee in Washington at stephenlee@bloombergindustry.com; Ellen M. Gilmer in Washington at egilmer@bloombergindustry.com

To contact the editor responsible for this story: Gregory Henderson at ghenderson@bloombergindustry.com

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