[Federal Register Volume 84, Number 232 (Tuesday, December 3, 2019)]
[Proposed Rules]
[Pages 66084-66096]
[FR Doc No: 2019-24940]

=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 1, 22, 23, 49, 52, 55, 71, 78, 124, and 222

[EPA-HQ-OGC-2019-0406; FRL-10002-10-OGC]

Modernizing the Administrative Exhaustion Requirement for
Permitting Decisions and Streamlining Procedures for Permit Appeals

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency (EPA) proposes a
procedural rule intended to streamline and modernize part of the
Agency's permitting process by creating a new, time-limited alternative
dispute resolution process (ADR process) as a precondition to judicial
review. Under this proposal, the parties in the ADR process may agree
by unanimous consent to either extend the ADR process or proceed with
an appeal before the Environmental Appeals Board (EAB). If the parties
don't agree to proceed with either the ADR process or an EAB appeal,
the permit would become final and could be challenged in federal court.
EPA also proposes to amend the current appeal process to clarify the
scope and standard of EAB review, remove a provision authorizing
participation in appeals by amicus curiae, and eliminate the EAB's
authority to review Regional permit decisions on its own initiative,
even absent an appeal. To promote internal efficiencies, EPA also
proposes to establish a 60-day deadline for the EAB to issue a final
decision once an appeal has been fully briefed and argued and to limit
the length of EAB opinions to only as long as necessary to address the
issues raised in an appeal; EPA also proposes to limit the availability
of extensions to file briefs. The proposed rule would apply to permits
issued by or on behalf of EPA under the Clean Air Act, the Clean Water
Act, the Safe Drinking Water Act, and the Resources Conservation and
Recovery Act. In addition to these permit appeal reforms, EPA proposes
several additional reforms designed to provide tools to better allow
the Administrator to exercise his or her statutory authority together
with appropriate checks and balances on how the Board exercises its
delegated authority. In this vein, EPA proposes to set twelve-year
terms for EAB Judges, which the Administrator may renew at the end of
that twelve-year period or reassign the Judge to another position
within EPA. EPA also proposes a new process to identify which EAB
opinions will be considered precedential. Finally, EPA proposes a new
mechanism by which the Administrator, by and through the General
Counsel, can issue a dispositive legal interpretation in any matter
pending before the EAB.

DATES: Comments must be received on or before January 2, 2020.

ADDRESSES: Submit your comments, identified in Docket ID No. EPA-HQ-
OGC-2019-0406, at https://www.regulations.gov. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from Regulations.gov. EPA may publish any comment
received to its public docket. Do not submit electronically any
information you consider to be Confidential Business Information (CBI)
or other information whose disclosure is restricted by statute.
Multimedia submissions (audio, video, etc.) must be accompanied by a
written comment. The written comment is considered the official comment
and should include discussion of all points you wish to make. EPA will
generally not consider comments or comment contents located outside of
the primary submission (i.e., on the web, cloud, or other file sharing
system). For additional submission methods, the full EPA public comment
policy, information about CBI or multimedia submissions, and general
guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Mark Talty, Office of General Counsel,
Environmental Protection Agency, 1200

Pennsylvania Avenue NW, Washington, DC 20460;<PHONE_NUMBER>; email
address<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:
    Submitting CBI. Do not submit information that you consider to be
CBI electronically through https://www.regulations.gov or email. Send
or deliver information identified as CBI only to the following address
using U.S. Postal Service: U.S. Environmental Protection Agency, EPA
Docket Center, EPA-HQ-OGC-2019-2751, Mail Code 2310A, 1200 Pennsylvania
Avenue NW, Washington, DC 20460. For other methods of delivery, see
https://www.epa.gov/dockets/where-send-comments-epa-dockets.
    Clearly mark the part or all of the information that you claim to
be CBI. For CBI information in a disk or CD-ROM that you mail to EPA,
mark the outside of the disk or CD-ROM as CBI then identify
electronically within the disk or CD-ROM the specific information that
is claimed as CBI. In addition to one complete version of the comment
that includes information claimed as CBI, a copy of the comment that
does not contain the information claimed as CBI must be submitted for
inclusion in the public docket. If you submit a CD-ROM or disk that
does not contain CBI, mark the outside of the disk or CD-ROM clearly
that it does not contain CBI. Information marked as CBI will not be
disclosed except in accordance with procedures set forth in 40 Code of
Federal Regulations (CFR) part 2.
    Organization of This Document. The following outline is provided to
aid in locating information in this preamble.

I. General Information
    A. Does this action apply to me?
    B. What action is the Agency taking?
    C. What is the Agency's authority for taking this action?
II. Background
    A. The Evolving Role of the EAB in Permit Appeals
    B. What are the major permitting functions of the EAB?
    C. What is the current process for permit appeals to the
Environmental Appeals Board?
III. Summary of Today's Proposal
    A. What are the key elements of this proposal?
    1. New Time-Limited ADR Process
    2. Clarifying the EAB's Scope and Standard of Review in Permit
Appeals
    3. Eliminating Amicus Curiae Participation
    4. Eliminating Sua Sponte Review
    5. Expediting the Appeal Process
    6. 12-Year Terms for EAB Judges
    7. Identifying Precedential EAB Decisions
    8. Administrator's Legal Interpretations
    9. Conforming Revisions
    B. How would today's proposal affect pending appeals?
    C. Why is EPA undertaking this reform?
    D. What provisions of the CFR is EPA proposing to revise?
    E. What regulatory text has EPA included in this proposal?
IV. Request for Comment
V. Statutory and Executive Orders

I. General Information

A. Does this action apply to me?

    This proposed procedural rule would not regulate any person or
entity outside EPA. This proposal would modify the process relevant to
certain administrative appeals handled by the EAB under 40 CFR 124.19
and other regulations listed below. It may be of interest to persons
and entities that apply for or are interested in challenging EPA
permitting decisions under the National Pollutant Discharge Elimination
System (NPDES) program of the Clean Water Act, the Safe Drinking Water
Act's Underground Injection Control (UIC) program, and the Resources
Conservation and Recovery Act (RCRA), including Remedial Action Plans,
40 CFR 270.42(f) & 270.155. It may also be of interest to persons or
entities interested in challenging EPA permitting decisions under the
Clean Air Act, including Outer Continental Shelf permits, 40 CFR
55.6(a)(3); Title V permits, 40 CFR 71.11(l); Acid Rain permits, 40 CFR
78.3(b)(1); Tribal Major Non-Attainment NSR permits, 40 CFR
49.172(d)(5); and Tribal Minor NSR permits, 40 CFR 49.159(d).
    In addition, any person or entity interested in EPA's
administrative processes may be interested in this proposal. With
exception of section III.A.7 (Administrator's Legal Interpretations),
nothing in this proposal affects the EAB's adjudication of enforcement
appeals.

B. What action is the Agency taking?

    This is a rule of agency organization, procedure or practice.
Although not subject to the notice and comment requirements of the
Administrative Procedure Act, the Agency nonetheless voluntarily seeks
comment because it believes that the information and opinions supplied
by the public will inform the Agency's views. To this end, EPA solicits
information and comment from the public on EPA's proposal to streamline
part of EPA's permitting process.
    Each proposal is identified immediately below and described in
Section III.
    First, EPA solicits comment on a proposal to create a new, time-
limited ADR process, resulting in a fundamental change to the Agency's
long-held administrative exhaustion requirements. Any interested party
seeking judicial review of an EPA permit would have to participate in
this new process before filing a petition in federal court. Under this
new process, the parties would have the choice, by unanimous consent,
to extend the ADR process or proceed to an appeal before the EAB.
    Second, EPA solicits comment on a proposal to clarify the scope and
standard of the EAB's review. Under the current regulations, the EAB
reviews petitions for a finding of fact or conclusion of law that is
clearly erroneous. 40 CFR 124.19(a)(4)(i)(A). However, the current
regulations also include a provision that provides that the EAB may
review of an exercise of discretion ``or an important policy
consideration.'' 40 CFR 124.19(a)(4)(i)(B). This has led to some
confusion as to whether a petitioner may ask the EAB--standing in the
Administrator's shoes--to address issues that a federal court generally
could not review, such as whether EPA properly exercised its discretion
relative to an ``important policy consideration.'' In any event, to the
extent 40 CFR 124.19(a)(4)(i)(B) suggests that the EAB may review EPA's
compliance with discretionary policies, EPA is proposing to eliminate
that provision and clarify that the EAB's scope and standard of review
is limited to findings of fact and conclusions of law that are clearly
erroneous.
    Third, EPA solicits information and comment on a proposal to remove
40 CFR 124.19(e), which currently authorizes interested persons to
participate in a permit appeal as amicus curiae. Under today's
proposal, the EAB would no longer accept amicus curiae briefs.
    Fourth, EPA also solicits comment on a proposal to eliminate the
EAB's authority to review Regional permit decisions on its own
initiative (sua sponte), even absent a private party appeal. In EPA's
experience, the EAB rarely invokes this authority, and to exercise it
now could impede timely permitting.
    Fifth, EPA solicits comment on a proposal to establish a 60-day
deadline for the EAB to issue a final decision once an appeal has been
fully briefed and argued. EPA also solicits information and comment on
a proposal to limit the availability of filing extensions to one
request per party, with a maximum extension of 30 days. (Nothing in the
proposed rule would modify the EAB's discretion to relax or suspend
filing requirements for good cause.)
    Sixth, EPA solicits comment on a proposal to set twelve-year terms
for

EAB Judges, which the Administrator may renew at the end of that
twelve-year period or reassign the Judge to another position within
EPA.
    Seventh, EPA solicits comment on a proposal to establish a
mechanism by which the Administrator, by and through the General
Counsel, can issue a dispositive legal interpretation in any matter
pending before the EAB or on any issue addressed by the EAB.
    The new ADR process and the revised permit appeal procedures apply
only to permitting decisions under:
     The National Pollutant Discharge Elimination System
(NPDES) program of the Clean Water Act;
     The Safe Drinking Water Act's Underground Injection
Control (UIC) program;
     The Resources Conservation and Recovery Act (RCRA),
including Remedial Action Plans, 40 CFR 270.42(f) & 270.155; and
     The Clean Air Act, including Prevention of Significant
Deterioration (PSD) permits, Outer Continental Shelf permits, 40 CFR
55.6(a)(3); Title V permits, 40 CFR 71.11(l); Acid Rain permits, 40 CFR
78.3(b)(1); Tribal Major Non-Attainment NSR permits, 40 CFR
49.172(d)(5); and Tribal Minor NSR permits, 40 CFR 49.159(d).

In particular, the new ADR process and procedural changes in this
proposal would not apply to other types of appeals not listed above.
Those topics are outside the scope of this rulemaking. Specifically,
EPA does not solicit comment on the EAB's enforcement functions. In
addition, with the exception of the proposed revisions above, nothing
in this proposal would alter the mechanics of permit appeals or the
process by which parties interact with the EAB, e.g., service
requirements. Those issues are also outside the scope of this
rulemaking and EPA does not solicit comment on them.

C. What is the Agency's authority for taking this action?

    EPA's authority to issue this proposed procedural rule is contained
in Resource Conservation and Recovery Act, 42 U.S.C. 6901 et seq.; Safe
Drinking Water Act, 42 U.S.C. 300(f) et seq.; Clean Water Act, 33
U.S.C. 1251 et seq.; and Clean Air Act, 42 U.S.C. 1857 et seq. EPA has
additional authority under the Federal Housekeeping Statute, 5 U.S.C.
301, which authorizes an agency head to prescribe regulations governing
his or her department and the performance of its business, among other
purposes.

II. Background

A. The Evolving Role of the Environmental Appeals Board in Permit
Appeals

    The EAB was created in 1992 to hear, among other things,
administrative appeals of enforcement proceedings and EPA-issued
permits. The purpose of its creation was to formally transfer the
Administrator's authority over such appeals to the new Board in an
effort to address the Agency's expanding enforcement docket and an
increase in EPA-issued permits.
    Over the past 27 years, the EAB's role in permit appeals has
changed as more states and tribes have assumed permitting authority
under EPA's statutes. For example, 47 states and one territory have
assumed authority to administer NPDES permits under the Clean Water
Act. In the context of RCRA, 48 states, the District of Columbia, and
Guam have been authorized to implement either all or parts of state
hazardous waste programs in lieu of RCRA subtitle C. Under the Clean
Air Act, 43 states fully administer the PSD program, and EPA has
approved Title V permit programs in all 50 states. As discussed later
in this document, the EAB does not hear challenges to most state-issued
permits.
    As more states and tribes have assumed authority, the Agency has
dramatically reduced the number of EPA-issued permits and, in turn, the
number of permits appealed to the EAB. Since January 1, 2016, a total
of 50 permit appeals have been filed with the EAB affecting a total of
40 permits.
    In 2010, the EAB launched a voluntary ADR program to assist parties
in resolving disputes before the EAB, including permit appeals. The EAB
established this ADR program to promote faster resolution of issues and
more creative, satisfying and enduring solutions; to foster a culture
of respect and trust among EPA, its stakeholders, and its employees and
to improve working relationships; to promote compliance with
environmental laws and regulations; to expand stakeholder support for
Agency programs; and to promote better environmental outcomes. The
EAB's ADR program currently offers parties the option of participating
in ADR with the assistance of an EAB Judge acting as a neutral
evaluator/mediator (generally referred to as the Settlement Judge). The
ADR program has been highly successful, and, to date, over 90% of the
cases that have gone through the program have been resolved without
litigation. See The EPA's Environmental Appeals Board at Twenty-five:
An Overview of the Board's Procedures, Guiding Principles, and Record
of Adjudicating Cases, p. 5 available at https://yosemite.epa.gov/oa/
EAB_Web_Docket.nsf/8f612ee7fc725edd852570760071cb8e/
381acd4d3ab4ca358525803c00499ab0/$FILE/The%20EAB%20at%20Twenty-
Five.pdf. Since its inception, the ADR Program has helped parties
achieve faster resolution of issues, enduring solutions, and broader
support for outcomes. Id.

B. What are the major permitting functions of the Environmental Appeals
Board?

    Under the current regulations, the EAB has jurisdiction over three
categories of permit-related actions, and an appeal to the EAB is a
prerequisite for judicial review of the permit. (Prior to 1992, appeal
to the Administrator was a prerequisite for judicial review of permits
issued by Regional Administrators.)
    The first category consists of appeals of federal permitting
decisions by Regional Administrators under the Clean Air Act (PSD,
Title V, Outer Continental Shelf, and some acid rain program permits),
the Safe Drinking Water Act (UIC permits), the Clean Water Act (NPDES
permits) and RCRA permits. Appeals under RCRA include decisions to deny
a permit for the active life of a hazardous waste management facility
or unit. This category also includes appeals by of Clean Air Act
permits issued by states in certain circumstances.\1\
---------------------------------------------------------------------------

    \1\ In some permitting programs, EPA regulations provide
authority for EPA to delegate the administration of the federal
permitting program to a state or tribal administrative agency. See,
e.g., 40 CFR 52.21(u); 40 CFR 71.10. This delegation empowers the
delegated agency to ``stand in the shoes'' of an EPA Regional Office
and exercise federal law authority. But the action taken by the
delegate remains a federal permitting decision subject to review in
the Environmental Appeals Board. This relationship is distinct from
an EPA-approved or authorized permitting program under which a state
agency applies state laws and regulations that EPA has determined
are sufficient to meeting the minimum programs requirements for such
a permitting program. See, e.g., 40 CFR 51.166; 40 CFR part 70.
State permitting decisions under an EPA-approved program is an
action under state law that is reviewable under any applicable state
administrative procedures and in state courts.
---------------------------------------------------------------------------

    In the case of PSD permits, the entire process--from the
determination that an application is complete to a final decision to
grant or deny a permit application--must occur within one year by
statutory mandate. 42 U.S.C. 7475(c); see Avenal Power Center LLC v.
EPA, 787 F.Supp.2d 1 (D.D.C. 2011). Nothing in today's proposal would
affect that statutory obligation.
    The second category consists of appeals of Clean Air Act NSR
permits

issued by EPA in Indian Country. The third category consists of
terminations of NPDES, RCRA and Marine Protection, Research, and
Sanctuaries Act permits. Under 40 CFR 124(l), the EAB's decision and
the Regional Administrator's subsequent issuance of the permit
constitutes final agency action.
    These permit-related functions are listed below, accompanied by the
parts of the Code of Federal Regulations where they currently appear.

Appeals from NPDES permit decisions made by Regional Administrators and
Administrative Law Judges under the Clean Water Act (40 CFR part 124).
Appeals from permit decisions and remedial action plan (RAP) approvals
made by Regional Administrators under RCRA (40 CFR part 124; 40 CFR
270.42(f) & 270.155).
Appeals from PSD permit decisions made by Regional Administrators and
delegated states under the Clean Air Act (40 CFR part 124; 40 CFR
52.21(q)).
Appeals from Title V operating permit decisions made by Regional
Administrators and delegated states under the Clean Air Act (40 CFR
71.11(l)).
Appeals of Outer Continental Shelf permit decisions made by Regional
Administrators (40 CFR part 124; 40 CFR 55.6(a)(3)).
Appeals from certain acid rain permitting decisions made by Regional
Administrators (40 CFR 78.3(b)(1)).
Appeals from UIC permit decisions made by Regional Administrators under
the Safe Drinking Water Act (40 CFR part 124).
Appeals from ocean dumping permit decisions made by Regional
Administrators under the Marine Protection, Research, and Sanctuaries
Act (40 CFR part 222).
Appeals from Federal Major Non-Attainment New Source Review permit
decisions by Regional Administrators in Indian County under the Clean
Air Act (40 CFR 49.172(d)).
Appeals from Federal Minor New Source Review permit decisions made by
Regional Administrators in Indian Country under the Clean Air Act (40
CFR 49.159(d)).
Appeals from the terminations of NPDES and RCRA permits and RAPs (40
CFR 22.44).

C. What is the current process for permit appeals to the Environmental
Appeals Board?

    Any person who participated in the permit public participation
process, either by filing comments on the draft permit or by speaking
at a public hearing, may petition the EAB for review. 40 CFR
124.19(a)(2). In addition, anyone may petition the EAB for review of a
permit condition that reflects changes from the draft. Id. A petition
for review must be filed within thirty days after service of notice of
the issuance of a permit decision and must identify the contested
permit condition or other challenge to the permit decision and clearly
set forth the petitioner's contentions, with appropriate support, as to
why the Board should review the decision. Id. at Sec.  124.19(a)(4). A
petitioner must demonstrate that each issue raised in the petition was
previously raised during the public comment period, or at a public
hearing. Id. In order to prevail, a petitioner must show that each
challenged permit condition is based on ``[a] finding of fact or
conclusion of law that is clearly erroneous'' or ``[a]n exercise of
discretion or an important policy consideration that the Environmental
Appeals Board should, in its discretion, review.'' Id. Sec.
124.19(a)(4)(i). Generally, the EPA Region--or other authority acting
on EPA's behalf--that issued the permitting decision must file a
response to a petition for review together with a certified index of
the administrative record and relevant portions of the record within 30
days after service of the petition. Id. at Sec.  124.19(b)(2). In the
case of PSD or other new source permit appeals, the Agency has 21 days
to file its response. Id. at Sec.  124.19(b)(1). A permit applicant who
did not appeal a permit decision may also file a notice of appearance
and respond to a petition, as may a state or tribal authority where a
permitted facility is (or is proposed to be) located. Id. Sec.
124.19(b)(3) through (4). Any other interested person may also
participate in the appeal by filing an amicus brief. Id. Sec.
124.19(e).
    Once the EAB has received a petition for review of a permit, the
Clerk of the Board assigns the matter to a panel of judges using a
neutral case assignment system. The EAB typically hears matters before
it in three-member panels, with the fourth member of the EAB available
to serve as a settlement judge in the event the parties opt to
participate in the EAB's ADR program. See id. Sec.  1.25(e)(1). The
panel decides each matter before it ``in accordance with applicable
statutes and regulations'' and considers the standard of review, prior
EAB precedents, Agency policy it deems relevant, and the evidence in
the record. Id. at Sec. Sec.  1.25, 22.30(d), 124.19(h). When
appropriate, the EAB hears oral argument on any or all issues in a
proceeding. Id. at 124.19(h). The regulations specify that the EAB
shall decide matters by majority vote. Id. at Sec.  1.25. The EAB
issues its opinions in writing, and the Regional Administrator's
subsequent issuance of the permit consistent with the opinion
constitutes final agency action.
    Currently, under the EAB's ADR Program, parties to an appeal are
invited to participate in ADR with the assistance of an EAB Judge
acting as a neutral evaluator/mediation (referred to as the
``Settlement Judge''). An EAB staff attorney (referred to as ``EAB
Settlement Counsel'') is often assigned to assist the Settlement Judge.
Each party to the appeal must agree to participate in ADR for the case
to proceed under the Program, which is often referred to as an ``opt-
in'' ADR process. If all parties agree to proceed with ADR, an EAB
Judge is assigned as the Settlement Judge, and the appeal proceedings
are stayed for 60 days. The Settlement Judge contacts the parties for a
status conference, followed by submission of issue summaries within 10
days of the status conference and an initial ADR meeting at which the
parties begin the case evaluation/mediation process.
    The ADR process may be terminated and the case returned to the
EAB's active docket if: (1) The Settlement Judge, at any point
following his or her designation, determines, in his or her discretion,
that ADR is no longer appropriate; (2) the Settlement Judge, in his or
her discretion, determines that the ADR process has not made
substantial progress within the stay period; or (3) any party
determines that it no longer wishes to participate in ADR. If a matter
is returned to the EAB's active docket, the Settlement Judge and the
EAB Settlement Counsel are prohibited from participating in any way in
the EAB's resolution.
    If the parties reach an acceptable resolution to all or part of
their dispute, the parties must create a written agreement signed by
each party. Upon execution of any agreement resolving all issues, the
parties then file a joint motion to dismiss the pending matter. The EAB
then issues an order dismissing the appeal. If some, but not all issues
are resolved, and the issues are severable, the parties must file a
motion for dismissal of the resolved issues. The EAB then issues an
order returning the remaining issues to the EAB's active docket for
resolution.

III. Summary of Today's Proposal

A. What are the key elements of this proposal?

1. New Time-Limited ADR Process
    EPA proposes to create a new, time-limited ADR process and
participation in that process would be a precondition to judicial
review in federal court. Under the current regulations, an interested
party must file a petition for review with the EAB as a precondition to
judicial review. See 40 CFR 124.19(l). Once the appeal process has
begun, parties to an appeal may ``opt-in'' to the EAB's ADR program to
resolve the dispute without litigating the issues before a panel of EAB
Judges. EPA is seeking to leverage the success of the EAB's current ADR
program and empower the parties to decide for themselves the best, most
efficient process to resolve their disputes.
    Under this proposal, the EAB's ADR program would be switched from
an opt-in process to an opt-out process conducted in compliance with
the confidentiality provisions of the Administrative Dispute Resolution
Act of 1996, 5 U.S.C. 574. Under the proposed process, an interested
person would have thirty days after service of notice of the issuance
of a permit decision to file a notice of dispute with the EAB in which
the interested person identifies the contested permit condition or
other specific challenge to the permit decision. The notice of dispute
would also need to certify that the party filed comments on the draft
permit or participated in a public hearing on the draft permit or that
the disputed conditions in the final permit reflect changes from the
proposed draft permit. The party filing the notice would have to serve
the notice on the Regional Administrator that issued the permitting
decision, the permit applicant, as well as the state or tribal
authority where the permitted facility is (or is proposed to be)
located. The Regional Administrator would be required to file its
response to a notice within 21 days after service of the notice of
dispute. A permit applicant who did not dispute a permit decision may
file a notice of appearance and a response, as may the relevant state
or tribal authority, within the same 21-day period.
    Upon receipt of the notice of dispute, the Clerk of the EAB would
assign an EAB Judge to act as the Settlement Judge. The Settlement
Judge would have thirty days from the deadline for filing a response to
convene a meeting of all the parties. Each party would be required to
file issue summaries with the Settlement Judge no later than ten days
prior to the convening meeting. At the convening meeting, each party
would be required to meet with the Settlement Judge in a private
session in which the Settlement Judge would provide the party with a
confidential, oral assessment of the strengths and weaknesses of their
case. Information discussed in the private sessions would be
confidential unless a party authorizes the Settlement Judge to disclose
it. At the conclusion of the convening meeting, or no later than thirty
days after the deadline to file a response, the parties may decide by
unanimous consent to either extend the ADR process (beyond the initial
thirty-day window) or proceed with an appeal before the EAB. The
Regional Administrator would not be considered a party for purposes of
this unanimous agreement, meaning the Regional Administrator would not
have a say in how the parties decide to proceed. EPA is proposing to
make any agreement of the parties issue-specific, meaning only those
issues or conditions that all parties agree to resolve via further ADR
or EAB review continue through the process. However, EPA solicits
comment on whether the parties' agreement should apply to all issues
raised in the notice of dispute. All parties would be required to
attend and participate in the convening meeting as a prerequisite to
seeking judicial review in federal court. If the parties do not agree
to proceed with either the ADR process or an EAB appeal, the notice of
dispute would be dismissed, the permit would become final and it could
be challenged in federal court. Lastly, any issues that are raised in
notice of dispute process but do not continue beyond the initial
thirty-day period would be preserved for appeal but may not be
challenged in federal court until the remaining administrative process
concludes. Again, EPA solicits comment on whether all issues raised in
the notice of dispute should be required to continue through the ADR
process or EAB appeal rather than only those issues or conditions that
all parties agree should proceed. If promulgated, the new ADR process
would apply only to any permit decision issued on or after the
effective date of the procedural rule. The proposal would not apply to
any current permit appeals.
2. Clarifying the EAB's Scope and Standard of Review in Permit Appeals
    The current regulations establish a ``clearly erroneous'' standard
of review and direct petitioners to demonstrate that ``each challenge
to the permit is based on . . . a finding of fact or conclusion of law
that is clearly erroneous.'' 40 CFR 124.19(a)(4)(i)(A). However, the
current regulations also include a paragraph that provides that the EAB
may review of an exercise of discretion ``or an important policy
consideration.'' 40 CFR 124.19(a)(4)(i)(B). This has led to some
confusion as to whether a petitioner may ask the EAB--standing in the
Administrator's shoes--to address issues that a federal court generally
could not review, such as whether EPA properly exercised its discretion
relative to an ``important policy consideration.'' To the extent that
40 CFR 124.19(a)(4)(i)(B) authorizes the EAB to review EPA's compliance
with discretionary policies, EPA proposes to eliminate that provision.
In doing so, EPA intends to make clear that while the EAB's scope of
review would no longer include exercises of discretion or important
policy considerations, nothing in this proposal would alter the
standard of review employed by the EAB in adjudicating permit.
3. Eliminating Amicus Curiae Participation
    EPA proposes to eliminate the provision at 40 CFR 124.19(e) that
authorizes interested persons to participate in a permit appeal as
amicus curiae. Under today's proposal, the EAB would no longer accept
amicus curiae briefs in permit appeals.
    Under the current regulations, any interested person can appeal an
EPA permit to the EAB; therefore, the amicus curiae process allowed the
EAB to consider additional views in support of or opposition to the
Region's permit. As discussed above, EPA proposes to create a new ADR
process that would be a prerequisite to seeking judicial review in
federal court. EPA believes that this new process would be the proper
forum for parties to resolve disputes over Agency permits and that
allowing for additional input in a permit appeal, should the parties
choose to proceed in such a manner, is unnecessary. Moreover,
eliminating amicus curiae briefs is consistent with the proposed
streamlining of the EAB permit appeal process. By eliminating amicus
briefs, EPA proposes to hasten the resolution of permit appeals by 15
days, see 40 CFR 124.19(e), and to simplify the process. All members of
the public are encouraged to submit comments on draft EPA permits, and
the Regions consider those comments when making permit decisions. This
is meaningful public engagement that has the potential to shape the
permit before it is appealed to the EAB. Moreover, the public comments
coupled with the Region's

responses become part of the permit's administrative record. EPA
believes that the availability of these comments, coupled with the
vigorous briefing by the permit applicant, the Region, and other
parties will ensure that the EAB becomes aware of any issues or
positions that might otherwise be raised by amici. Under these
circumstances, the benefits of expeditious resolution of appeals
outweigh any benefits associated with amici participation.
4. Eliminating Sua Sponte Review
    The current regulations authorize the EAB to decide on its own
initiative to review any condition of any RCRA, UIC, NPDES, or PSD
permit decision for which review is otherwise available. Today's
proposal would eliminate this provision. Allowing sua sponte review by
the EAB would be inconsistent with the Agency's goal of empowering the
parties of a permit dispute to dictate the process they believe will
most effectively and efficiently resolve their dispute.
5. Expediting the Appeal Process
    EPA proposes several additional changes to the appeal process that
are intended to expedite resolution of appeals, should the parties
choose to proceed with an EAB appeal. First, EPA proposes to establish
a deadline of 60 days for the EAB to issue a final decision, measured
from the date of oral argument or the filing of the last brief,
whichever is later. This deadline demonstrates EPA's commitment to
making permits final and effective expeditiously. It also should be
achievable, in light of the EAB's reduced workload contemplated by this
proposed rule.
    Second, in light of the proposed 60-day deadline, EPA proposes to
limit the length of EAB opinions by advising the Board to make them
only as long as needed to address the specific issues raised in the
appeal. EPA solicits comment on whether to set a numerical limit,
either in words or pages.
    In the third time-saving change, EPA proposes to revise the
provisions in the current regulations relating to extensions of time to
file briefs. The regulations at 40 CFR 124.19(g) authorize parties to
seek such extensions. A review of motion practice before the EAB
reveals that much of the delay in resolving appeals stems from frequent
and lengthy extensions requested by the parties. Today's proposal would
authorize each party to request a one-time 30-day extension that the
EAB, in the exercise of its discretion, may choose to grant. Nothing in
the proposed rule would eliminate the EAB's discretion to relax or
suspend filing requirements for good cause. See 40 CFR 124.19(n).
6. 12-Year Terms for EAB Judges
    The EAB is a permanent body with continuing functions established
by regulation. It exercises authority expressly delegated to it from
the Administrator by Title 40 of the Code of Federal Regulations. 40
CFR 1.25(e)(2). The EAB is composed of no more than four judges
designated by the Administrator, 40 CFR 1.25(e)(1), but all positions
need not be filled depending on the work load before the Board. By
custom, EAB Judges are career employees of EPA and members of the
Senior Executive Service (SES).
    Over the years, the Agency has benefited from the arrival of new
judges to fill vacancies created as former judges retire or move to
other senior executive positions. Since 2012, eight different judges
have served on the EAB, bringing with them experience from the Offices
of the Regional Counsel, the Office of General Counsel, the Office of
Enforcement and Compliance Assistance and other Federal agencies,
including the U.S. Department of Justice. For judges joining the EAB
since January 1, 2012, the average term of service is four years.
    At the same time, the Agency has benefited from judges who have
served on the Environmental Appeals Board for much longer terms. These
judges bring deep experience in EAB jurisprudence and provide needed
stability in light of frequent vacancies. Of the twelve judges who have
served on the EAB since its creation in 1992, four of the first five
EAB judges held their positions for nine to 21 years. One judge has
served for 24 years.
    In today's document, EPA proposes to set fixed twelve-year terms
for EAB Judges, which the Administrator may renew at the end of that
twelve-year period or reassign the Judge to another position within
EPA. EPA solicits comment on whether eight-year terms are more
appropriate. EPA also solicits comment on whether any other term length
is more appropriate. The Administrator would apply the new twelve-year
terms to the current EAB judges on a rolling basis over the next twelve
years. Each seat on the EAB would be designated a number based on the
seniority of the Board's current members. The seat of the longest
serving judge would be designated as seat one, the second longest
serving judge as seat two, the third longest serving judge as seat
three, and the most recent judge as seat four. The term for the newly
designated seat one would end three years after the effective date of
the final rule. The process would then continue at three-year
intervals, with seat two ending six years after the effective date,
seat three ending nine years after the effective date, and seat four
ending twelve years after the effective date. Thereafter, all terms
will last for twelve years. If a judge vacates his or her position
before the end of the judge's term, the Administrator would appoint a
new judge to serve for the remainder of the vacated term. That new
member could then be renewed at the end of the vacated term. For
example, assume the term of the judge holding seat two ends in 2026,
subject to renewal. Further assume that this judge retires in 2020. The
new judge occupying seat two would serve for six years (until 2026) and
then be eligible for a twelve-year term renewal. But assume this judge
leaves after five years in 2025. The newest judge occupying seat two
would serve for one year (until 2026) and then be eligible for twelve-
year term renewal. There would be no limit to the number of twelve-
years terms that one judge could serve. EPA also solicits comment on
whether a different process for retention of EAB Judges is more
appropriate.
    If the Administrator chooses not to renew the appointment, the
Administrator would assign that judge to another SES position within
EPA for which he or she qualifies, in compliance with all applicable
procedures. (As members of the SES, EAB judges are subject to
reassignment to any other SES position in the Agency for which he or
she qualifies, after approval from OPM and the Office of Presidential
Personnel. See Guide to the Senior Executive Service, published by the
Office of Personnel Management (March 2017), pages 8, 10. https://www.opm.gov/policy-data-oversight/senior-executive-service/referencematerials/guidesesservices.pdf. See also 5 U.S.C. 3131(5) (SES
program shall be administered so as to enable the head of an agency to
reassign senior executives to best accomplish the agency's mission).
    In EPA's experience, EAB judges have left their appointments either
to retire from federal service or to take another position within EPA
or elsewhere. Nothing in this process would prevent a judge from
leaving the EAB before the expiration of his or her twelve-year term.
Similarly, nothing in this process prevents the Administrator from
reassigning an EAB judge to another position prior to the expiration of
his or her renewable twelve-year term.

7. Identifying Precedential EAB Decisions
    EPA is soliciting comment on whether it should create a process to
explicitly identify certain decisions of the EAB as precedential. Under
such a process, only published decisions could be considered
precedential. The determination of which decisions should be published
would be determined by the Administrator acting through the General
Counsel.
    Other federal agencies that utilize adjudicatory hearings have
similar processes for identifying precedential decisions. For instance,
the Department of Homeland Security and the Department of Justice
designate certain decisions as ``precedent decisions'' in various
immigration proceedings. Under their process, ``precedent decisions''
are administrative decisions of the Administrative Appeals Office, the
Board of Immigration Appeals (BIA), and the Attorney General, which are
selected and designated as precedent by the Secretary of the Department
of Homeland Security, the BIA, and the Attorney General, respectively.
Identifying certain decision as precedential is important because
federal courts give greater deference to such decisions. For that
reason, EPA is soliciting comment on whether the Agency should
affirmatively designate certain EAB decisions as precedential.
8. Administrator's Legal Interpretations
    EPA proposes a new mechanism by which the Administrator, by and
through the General Counsel, can issue a dispositive legal
interpretation in any matter before the EAB or on any issue addressed
by the EAB. This legal interpretation would be binding on the EAB.
Under this proposal, the General Counsel may file written notice to the
EAB providing the Administrator's legal interpretation of an applicable
Agency regulation or governing statute in any matter before the EAB;
this proposal is not limited just to permit appeals. This new mechanism
is distinguished from legal briefs filed by EPA's Regions, which simply
set forth the Agency's position on any relevant legal interpretations.
The intent of this proposal is to allow the Administrator, in specific
cases, to retain authority as it pertains to legal interpretations.
Nothing in this proposal would limit the Administrator's existing
authority (derived from his or her statutory authority to issue the
permits in the first instance) to review or change any EAB decision.
9. Conforming Revisions
    EPA also proposes conforming changes to regulatory text to
implement the objectives described above.

B. How would today's proposal affect pending appeals?

    If promulgated as proposed, today's revisions would not apply to
appeals that had been filed with the EAB before the effective date of
any final rule codifying such revisions.

C. Why is EPA undertaking this reform?

    EPA has an almost 20-year history of promoting the expanded use of
ADR to address disputes and resolve conflict. See EPA's Policy on
Alternative Dispute Resolution, 65 FR 81,858 (Dec. 27, 2000). The
Agency has long recognized that ADR techniques can have many benefits,
including faster resolution of issues; more creative, satisfying and
enduring solutions; fostering a culture of respect and trust among EPA,
its stakeholders, and its employees; improving working relationships;
promoting compliance with environmental laws and regulations; expanding
stakeholder support for Agency programs; and promoting better
environmental outcomes. Id. at 81,858-59. The EAB instituted its ADR
program in 2010 in recognition of these many benefits and the success
experienced by other federal agencies and by federal courts (including
appellate courts) in settling contested matters through ADR. As noted
above, the EAB's ADR program has been highly successful with over
ninety percent of the cases that have gone through the program resolved
without litigation.
    EPA is seeking to build off the success of the EAB's ADR program by
creating a new process that will ensure speedy resolution of disputes
while providing the interested parties with options to achieve those
ends. Under this proposal, the EAB's ADR program would switch to an
opt-out process by requiring all parties to convene with an EAB Judge
acting as a Settlement Judge. EPA believes the parties can greatly
benefit from the input of the Settlement Judge's unique assessment of
litigation risk, which, in the Agency's experience, carries significant
weight among parties and often drives quick resolution of the issues.
After receiving this valuable input from the Settlement Judge, the
parties would then be empowered to decide for themselves the best, most
efficient process to resolve their disputes, whether it be through
further mediation, an EAB appeal or litigation in federal court.
    In addition, EPA's proposals to reform the current permit appeal
process go hand-in-hand with the newly proposed ADR process. By
modifying and expediting the appeal process, EPA hopes to make an EAB
appeal a more attractive, less time-consuming option for the parties to
resolve permit disputes.
    In proposing this new process, EPA recognizes that it is
fundamentally changing the administrative exhaustion requirement.
However, based on the changes to EAB permit reviews over time and the
documented success of ADR processes, EPA ultimately believes that an
ADR-focused, party-driven process will resolve disputes faster and
result in better outcomes (either through ADR, streamlined Board
adjudication or expedited judicial review).
    Lastly, EPA is proposing several measured reforms designed to
better align the Board's role with its delegated authority from the
Administrator. The Administrator is given the authority to issue
permits under each of the relevant statutes implicated in EPA's
proposal. In creating the EAB, the Administrator delegated a portion of
this authority to the Board. By providing the Administrator with tools
to exercise his or her statutory authority in the first instance
together with some appropriate checks and balances on how the Board
exercises its delegated authority, the measures included in today's
proposal are designed to better reflect how the Administrator exercises
or delegates his or her permitting authority.

D. What provisions of the CFR is EPA proposing to revise?

    EPA proposes to revise the following provisions of the CFR:
     40 CFR 1.25(e) (Environmental Appeals Board).
     40 CFR 22.44 (appeals from the terminations of NPDES and
RCRA permits).
     40 CFR part 23 (judicial review provisions).
     40 CFR 49.159(d) (appeals from Federal Minor New Source
Review permit decisions made by Regional Administrators in Indian
Country under the Clean Air Act).
     40 CFR 49.172(d) (appeals from Federal Major Non-
Attainment New Source Review permit decisions by Regional
Administrators in Indian County under the Clean Air Act).
     40 CFR 52.21(q) (appeals from PSD permit decisions made by
Regional Administrators and delegated states under the Clean Air Act).
     40 CFR 55.6(a)(3) (appeals of Outer Continental Shelf
permit decisions made by Regional Administrators).
     40 CFR 71.11(l) (appeals from Title V operating permit
decisions made by

Regional Administrators and delegated states under the Clean Air Act).
     40 CFR 78.3(b)(1) (appeals from certain acid rain
permitting decisions made by Regional Administrators).
     40 CFR 124.16 & 124.19 (appeals from NPDES permit
decisions made by Regional Administrators and Administrative Law Judges
under the Clean Water Act; appeals from permit decisions made by
Regional Administrators under RCRA; appeals from PSD permit decisions
made by Regional Administrators and delegated states under the Clean
Air Act; appeals of Outer Continental Shelf permit decisions made by
Regional Administrators; appeals from UIC permit decisions made by
Regional Administrators under the Safe Drinking Water Act).
     40 CFR part 222 (appeals from ocean dumping permit
decisions made by Regional Administrators under the Marine Protection,
Research, and Sanctuaries Act).
     40 CFR 270.42(f) & 270.155 (appeals from Remedial Action
Plan decisions under RCRA).

E. What regulatory text has EPA included in this proposal?

    EPA has included proposed regulatory text for 40 CFR part 124 that
would effectuate the proposed ADR process for most permit appeals. The
Agency has provided this regulatory text to show the public how the
substance of the newly proposed ADR process would be implemented. While
this proposal makes clear that the proposed ADR process would apply to
each of the permit decisions listed in section I.B. of this document,
EPA has not included proposed conforming regulatory text for the
following sections:
     40 CFR 49.159(d) (appeals from Federal Minor New Source
Review permit decisions in Indian Country under the Clean Air Act).
     40 CFR 49.172(d) (appeals from Federal Major Non-
Attainment New Source Review permit decisions in Indian County under
the Clean Air Act).
     40 CFR 52.21(q) (appeals from PSD permit decisions made by
Regional Administrators and delegated states under the Clean Air Act).
     40 CFR 55.6(a)(3) (appeals of Outer Continental Shelf
permit decisions).
     40 CFR 71.11(l) (appeals from Title V operating permit
decisions made by Regional Administrators and delegated states under
the Clean Air Act).
     40 CFR 78.3(b)(1) (appeals from certain acid rain
permitting decisions).
     40 CFR part 222 (appeals from ocean dumping permit
decisions under the Marine Protection, Research, and Sanctuaries Act).
     40 CFR 270.42(f) & 270.155 (appeals from Remedial Action
Plan decisions under RCRA)
    EPA seeks comment on how to conform the above-cited sections with
the proposed revisions to part 124. EPA could conform those sections by
cross-referencing the proposed revisions in part 124 (requiring persons
to file a notice of dispute under proposed Sec.  124.19) or by drafting
separate regulatory text that would create an identical ADR exhaustion
process within each of those sections.

IV. Request for Comment

    EPA solicits comment on all aspects of the proposed regulation and
the bases articulated for it above.
    Except for the proposal regarding the Administrator's legal
interpretations (Section III, A.8. of this document), EPA is not
soliciting comment on any functions of the EAB unrelated to permit
appeals. For example, EPA is not soliciting comment on enforcement
appeals or any other aspect of the EAB's work not specifically proposed
today. With the exception of the proposals discussed above--for which
EPA solicits comment--nothing in today's proposal would change the
processes for having an appeal adjudicated by the EAB (should the
parties agree to proceed with an appeal before the EAB). Therefore, EPA
does not solicit comment on the unchanged aspects of the permit appeal
processes.

V. Statutory and Executive Order Reviews

A. Executive Orders 12866: Regulatory Planning and Review and Executive
Order 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. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Costs

    This action is not an Executive Order 13771 regulatory action
because it relates to ``agency organization, management or personnel.''

C. Paperwork Reduction Act (PRA)

    This action does not contain any information collection activities
and therefore does not impose an information collection burden under
the PRA.

D. Regulatory Flexibility Act (RFA)

    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 EPA
expressly exempts from notice and comment rulemaking requirements under
5 U.S.C. 553(a)(2).

E. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in
UMRA, 2 U.S.C. 1531-1536, 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.

F. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have
a 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.

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

    This action does not have tribal implications as specified in
Executive Order 13175.

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

    The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that EPA has reason to believe may disproportionately affect children,
per the definition of ``convered 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.

I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution or Use

    This action is not a ``significant energy action'' because it is
not likely to have a significant adverse effect on the supply,
distribution or use of energy.

J. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards.

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

    This action is not subject to Executive Order 12898 (59 Fed 7629,
Feb. 16, 1994) because it does not establish an environmental health or
safety standard.

List of Subjects

40 CFR Part 1

    Organization and functions (Government agencies).

40 CFR Part 22

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

40 CFR Part 23

    Administrative practice and procedure, Air pollution control,
Courts, Hazardous substances, Hazardous waste, Pesticides and pests,
Radiation protection, Water pollution control, Water supply.

40 CFR Part 49

    Administrative practice and procedure, Air pollution control,
Indians, Intergovernmental relations, Reporting and Recordkeeping
requirements.

40 CFR part 52

    Administrative practice and procedure, Air pollution control,
Ammonia, Carbon monoxide, Environmental protection, Greenhouse gases,
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen
dioxide, Nitrogen oxides, Ozone, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.

40 CFR Part 55

    Administrative practice and procedure, Air pollution control,
Continental shelf, Intergovernmental relations, Nitrogen dioxide,
Ozone, Reporting and recordkeeping requirements, Sulfur oxides.

40 CFR Part 71

    Administrative practice and procedure, Air pollution control,
Reporting and recordkeeping requirements.

40 CFR Part 78

    Acid rain, Administrative practice and procedure, Air pollution
control, Electric utilities, Nitrogen oxides, Reporting and
recordkeeping requirements, Sulfur oxides.

40 CFR Part 124

    Administrative practice and procedures, Air pollution control,
Hazardous waste, Indians-lands, Reporting and recordkeeping
requirements, Water pollution control, Water supply.

40 CFR Part 222

    Administrative practice and procedures, Water pollution control.

    Dated: November 6, 2019.
Andrew R. Wheeler,
Administrator.
    For the reasons set forth in the preamble, EPA proposes to revise
40 CFR parts 1, 22, 23, 49, 52, 55, 71, 78, 124, and 222 as follows:

PART 1--STATEMENT OF ORGANIZATION AND GENERAL INFORMATION

0
1. The authority citation for part 1 continues to read as follows:

    Authority:  5 U.S.C 552.

0
2. Amend Sec.  1.25 by revising paragraph (e)(2) and adding paragraph
(e)(4) to read as follows:

Sec.  1.25   Staff offices.

* * * * *
    (e)(2) Functions. (i) The Environmental Appeals Board shall
exercise any authority expressly delegated to it in this title. With
respect to any matter for which authority has not been expressly
delegated to the Environmental Appeals Board, the Environmental Appeals
Board shall, at the Administrator's request, provide advice and
consultation, make findings of fact and conclusions of law, prepare a
recommended decision, or serve as the final decisionmaker, as the
Administrator deems appropriate.
    (ii) In performing its functions, the Environmental Appeals Board
may consult with any EPA employee concerning any matter governed by the
rules set forth in this title, provided such consultation does not
violate applicable ex parte rules in this title.
    (iii) The Administrator may limit the Environmental Appeals Board's
authority to interpret statutes and regulations otherwise delegated to
it in this title by issuing, through the General Counsel, a binding
legal interpretation of any applicable statute or regulation. Nothing
in this section limits the Administrator's authority to review or
change any EAB decision.
* * * * *
    (4) Term. (i) Each member of the Environmental Appeals Board is
appointed to a twelve-year term, with an option for renewal at the end
of that twelve-year period. Nothing in this paragraph prevents a member
of the Environmental Appeals Board from resigning before the expiration
of the member's twelve-year term. Similarly, nothing in this paragraph
forecloses the Administrator from reassigning a member of the
Environmental Appeals Board to another position prior to the expiration
of the member's renewable twelve-year term.
    (ii) If a member of the Environmental Appeals Board resigns before
the expiration of the member's term, the replacement member will serve
for the remaining portion of the term, with an option for renewal at
the end of the term.

PART 124--PROCEDURES FOR DECISIONMAKING

0
3. 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
4. Amend Sec.  124.16 by revising the first sentences of paragraphs
(a)(1) and (a)(2)(ii), and by revising paragraph (b)(1) to read as
follows:

Sec.  124.16   Stays of contested permit conditions.

    (a) * * *
    (1) If a notice of dispute of a RCRA, UIC, or NPDES permit under
Sec.  124.19 of this part is filed, the effect of the contested permit
conditions shall be stayed and shall not be subject to judicial review
pending final agency action. * * *
    (2) * * *
    (ii) The Regional Administrator shall, as soon as possible after
receiving notification from the EAB of the filing of a notice of
dispute, notify the EAB, the applicant, and all other interested
parties of the uncontested (and severable) conditions of the final
permit that will become fully effective enforceable obligations of the
permit as of the date specified in paragraph (a)(2)(i) of this section.
* * *
    (b) * * *
    (1) A stay may be granted based on the grounds that a dispute to
the Administrator under Sec.  124.19 of one permit may result in
changes to another EPA-issued permit only when each of the permits
involved has been disputed to the Administrator.
* * * * *

0
5. Revise Sec.  124.19 to read as follows:

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

    (a) Disputing a permit decision--(1) Initiating a dispute.
Disputing a RCRA, UIC, NPDES, or PSD final permit decision issued under
Sec.  124.15 of this part, or a decision to deny a permit for the
active life of a RCRA hazardous waste management facility or unit under
Sec.  270.29 of this chapter, is commenced by filing a notice of
dispute with the Clerk of the Environmental Appeals Board within the
time prescribed in paragraph (a)(3) of this section.
    (2) Who may file? Any person who filed comments on the draft permit
or participated in a public hearing on the draft permit may file a
notice of dispute as provided in this section. Additionally, any person
who failed to file comments or failed to participate in the public
hearing on the draft permit may dispute any permit conditions set forth
in the final permit decision, but only to the extent that those final
permit conditions reflect changes from the proposed draft permit.
    (3) Filing deadline. A notice of dispute must be filed with the
Clerk of the Environmental Appeals Board within 30 days after the
Regional Administrator serves notice of the issuance of a RCRA, UIC,
NPDES, or PSD final permit decision under Sec.  124.15 or a decision to
deny a permit for the active life of a RCRA hazardous waste management
facility or unit under Sec.  270.29 of this chapter. A notice 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.
    (4) Notice contents. (i) A notice of dispute must identify the
contested permit condition or other specific challenge to the permit
decision and clearly set forth the party's contentions for why the
permit decision should be reviewed.
    (ii) A notice of dispute may not exceed 20 double-space pages.
    (iii) A person filing a notice of dispute must certify that:
    (A) The person filed comments on the draft permit or participated
in a public hearing on the draft permit; or
    (B) The disputed conditions in the final permit reflect changes
from the proposed draft permit.
    (b) Response(s) to a notice of dispute. (1) The Regional
Administrator must file a response to the notice of dispute within 21
days after the service of the petition.
    (2) A permit applicant who did not file a notice of dispute but who
wishes to participate in the dispute process must file a notice of
appearance and a response. Such documents must be filed by the deadline
provided in paragraph (b)(1) of this section.
    (3) The State or Tribal authority where the permitted facility or
site is or is proposed to be located (if that authority is not the
permit issuer) must also file a notice of appearance and a response if
it wishes to participate in the dispute process. Such response must be
filed by the deadline provided in paragraph (b)(1) of this section.
    (4) Response contents. (i) A response must respond to the issues
raised in the notice of dispute.
    (ii) A response may not exceed 20 double-spaced pages.
    (c) Filing and service requirements. Documents filed under this
section, including the notice of dispute, 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 (c)(2) of this section. Service of a document between parties
to a dispute 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.
    (1) Caption and other filing requirements. Every document filed
with the Environmental Appeals Board must specifically identify in the
caption the permit applicant, the permitted facility, and the permit
number. All documents that are filed must be signed by the person
filing the documents or the representative of the person filing the
documents. Each filing must also indicate the signer's name, address,
and telephone number, as well as an email address, and facsimile
number, if any.
    (2) Method of filing. Unless otherwise permitted under these rules,
documents must be filed either by using the Environmental Appeals
Board's electronic filing system, by U.S. mail, or by hand delivery or
courier (including delivery by U.S. Express Mail or by a commercial
delivery service).
    (i) Electronic filing. Documents that are filed electronically must
be submitted using the Environmental Appeals Board's electronic filing
system, subject to any appropriate conditions and limitations imposed
by order of the Environmental Appeals Board. All documents filed
electronically must include the full name of the person filing below
the signature line. Compliance with Environmental Appeals Board
electronic filing requirements constitutes compliance with applicable
signature requirements.
    (ii) Filing by U.S. Mail. Documents that are sent by U.S. Postal
Service (except by U.S. Express Mail) must be sent to the official
mailing address of the Clerk of the Environmental Appeals Board at:
U.S. Environmental Protection Agency, Environmental Appeals Board, 1200
Pennsylvania Avenue NW, Mail Code 1103M, Washington, DC 20460-0001. The
original and two copies of each document must be filed. The person
filing the documents must include a cover letter to the Clerk of the
Environmental Appeals Board clearly identifying the documents that are
being submitted, the name of the party on whose behalf the documents
are being submitted, as well as the name of the person filing the
documents, his or her address, telephone number and, if available, fax
number and email address.
    (iii) Filing by hand delivery or courier. Documents delivered by
hand or courier (including deliveries by U.S. Express Mail or by a
commercial delivery service) must be delivered to the Clerk of the
Environmental Appeals Board at: U.S. Environmental Protection Agency,
Environmental Appeals Board, WJC East Building, 1201 Constitution
Avenue NW, Room 3332, Washington, DC 20004.
    (3) Service--(i) Service information. The first document filed by
any person must contain the name, mailing address, telephone number,
and email address of an individual authorized to receive service
relating to the proceeding. Parties must 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 satisfies the requirements of paragraph
(i)(3) of this section.
    (ii) Service requirements for parties. A party must serve the
notice of dispute on the Regional Administrator, the permit applicant
and the state or tribal authority where the permitted facility or site
is (or is proposed to be) located (if the applicant, state or tribal
authority is not the disputing party). Once a dispute 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 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).
    (4) Proof of service. A certificate of service must be appended to
each document filed stating the names of persons served, the date and
manner of service, as well as the electronic, mailing, or hand delivery
address, or facsimile number, as appropriate.
    (d) Dispute resolution process. (1) Upon receipt of a notice of
dispute under paragraph (a)(3) of this section, the Clerk of the
Environmental Appeals Board shall assign one of the Board's judges to
act as the Settlement Judge for the dispute.
    (2) Convening of parties--(i) Timing. The Settlement Judge shall
convene all parties to the dispute, either in-person or via video
conference, within 30 days from the deadline provided in paragraph
(b)(1) of this section. This deadline may be extended by unanimous
consent of the parties.
    (ii) Issue summaries. (A) No later than 10 days before the date of
the convening, each party must submit a brief written submission (no
more than 15 double-spaced pages) summarizing the issues in dispute and
its positions on those issues. In addition to identifying any
jurisdictional or policy issues, these submissions should include any
background information that might facilitate settlement discussions.
The submissions should also include discussions of what the parties
seek from ADR and their perspective on what a successful agreement
might include.
    (B) Unless authorized by the submitting party, the issue summaries
may not be shared with any other party.
    (iii) Initial mediation. (A) Each party must meet with the
Settlement Judge in a private session at or before the convening
meeting. In the private session, the Settlement Judge shall provide
each party with a confidential, oral assessment of the strengths and
weaknesses of their case. Unless authorized by the communicating party,
the Settlement Judge may not disclose any information provided in
private session.
    (B) Following the private sessions, the parties may engage in
direct discussions to resolve the dispute.
    (3) Concluding the resolution process.
    (i) At the conclusion of the convening meeting, or no later than 30
days after the deadline provided in paragraph (b)(1) of this section,
the parties may decide by unanimous agreement to:
    (A) Continue mediation under the Environmental Appeals Board's
alternative dispute resolution program; or
    (B) Proceed with an appeal under Sec.  124.20 of this chapter.
    (ii) If the parties fail to agree to continue mediation or to
proceed with an appeal under section 124.20 of this chapter, the Clerk
of the Environmental Appeals Board shall dismiss the dispute.
    (iii) If all parties agree to continue mediation under paragraph
(d)(3)(i) of this section, the following provisions apply:
    (A) The parties may decide by unanimous agreement at any time
during the mediation process to proceed with an appeal under Sec.
124.20 of this chapter.
    (B) The Clerk of the Environmental Appeals Board may dismiss the
notice of dispute and end the mediation process if:
    (1) The Settlement Judge determines that the mediation has not made
substantial progress or that mediation is no longer appropriate; or
    (2) Any party to the mediation no longer wishes to participate.
    (4) Parties to unanimous agreement. Under this section, the
Regional Administrator is not considered a party when determining the
unanimous agreement of the parties.
    (e) Withdrawal of permit or portions of permit by Regional
Administrator. The Regional Administrator, at any time prior to 30 days
after the Regional Administrator files its response to the notice of
dispute under paragraph (b) of this section, may, upon notification to
the Environmental Appeals Board and any interested parties, withdraw
the permit and prepare a new draft permit under Sec.  124.6 addressing
the portions so withdrawn. The new draft permit must proceed through
the same process of public comment and opportunity for a public hearing
as would apply to any other draft permit subject to this part. Any
portions of the permit that are not withdrawn and that are not stayed
under Sec.  124.16(a) continue to apply. If the Settlement Judge has
convened an initial meeting of the parties under paragraph (d)(2) of
this section, the Regional Administrator may not unilaterally withdraw
the permit, but instead must request that the Environmental Appeals
Board grant a voluntary remand of the permit or any portion thereof.
    (f) Request for dismissal of dispute. The disputing party, by
motion, may request to have the Environmental Appeals Board dismiss its
dispute. The motion must briefly state the reason for its request.
    (g) Judicial review. (1) Filing a notice of dispute under paragraph
(a)(1) of this section and participating in the convening meeting under
paragraph (d)(2) of this section are, under 5 U.S.C. 704, a
prerequisite to seeking judicial review of the final agency action.
    (2) For purposes of judicial review under the appropriate Act,
final agency action on a RCRA, UIC, NPDES, or PSD permit occurs when:
    (i) A notice of dispute is dismissed under paragraph (d)(4) or
(d)(5)(ii) of this section; or
    (ii) When agency review procedures under Sec.  124.20 of this
chapter are exhausted and the Regional Administrator subsequently
issues a final permit decision under Sec.  124.20(i)(2) of this
chapter.
    (h) General NPDES permits. (1) Persons affected by an NPDES general
permit may not file a petition under this section or otherwise
challenge the conditions of a general permit in further Agency
proceedings. Instead, they may do either of the following:
    (i) Challenge the general permit by filing an action in court; or
    (ii) Apply for an individual NPDES permit under Sec.  122.21 as
authorized in Sec.  122.28 of this chapter and may then petition the
Environmental Appeals Board to review the individual permit as provided
by this section.
    (2) As provided in Sec.  122.28(b)(3) of this chapter, any
interested person may also petition the Director to require an
individual NPDES permit for any discharger eligible for authorization
to discharge under an NPDES general permit.
0
6. Revise Sec.  124.20 to read as follows:

Sec.  124.20   Appeal of RCRA, UIC, NPDES and PSD Permits.

    (a) Appealing a permit decision--(1) Initiating an appeal. An
appeal of a RCRA, UIC, NPDES, or PSD final permit decision issued under
Sec.  124.15 of this part, or a decision to deny a permit for

the active life of a RCRA hazardous waste management facility or unit
under Sec.  270.29 of this chapter, is commenced by filing a notice
with the Clerk of the Environmental Appeals Board indicating that all
parties to the dispute resolution process agree to proceed with an
appeal under this section.
    (2) What may be appealed? An appeal under this section is limited
to only those issues or permit conditions that the parties to the
dispute resolution process agreed to appeal.
    (3) Administrative record. The Regional Administrator must file a
certified index of the administrative record and the relevant portions
of the administrative record within 30 days after the service of the
notice under paragraph (a)(1) of this section.
    (b) Opening brief. (1) Filing the brief. A party that filed a
notice of dispute under Sec.  124.19(a)(1) of this chapter may file an
opening brief within 30 days after service of the notice under
paragraph (a)(1) of this section.
    (2) Contents of the brief. In addition to meeting the requirements
in paragraph (e) of this section, the opening brief must:
    (i) Identify the contested permit condition or other specific
challenge to the permit decision;
    (ii) Demonstrate that each challenge to the permit decision is
based on a finding of fact or conclusion of law that is clearly
erroneous; and
    (iii) 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
brief was raised during the public comment period (including any public
hearing) to the extent required by Sec.  124.13. For each issue raised
that was not raised previously, the brief must explain why such issues
were not required to be raised during the public comment period as
provided in Sec.  124.13. Additionally, if the brief raises an issue
that the Regional Administrator addressed in the response to comments
document issued pursuant to Sec.  124.17, then it must provide a
citation to the relevant comment and response and explain why the
Regional Administrator's response to the comment was clearly erroneous.
    (c) Answering brief(s). (1) The Regional Administrator must file an
answering brief within 30 days after service of the opening briefing.
The answering 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) A permit applicant that participated in the dispute resolution
process may file an answering brief that responds to the arguments
raised by the appellant within 30 days after service of the opening
brief.
    (3) If the State or Tribal authority where the permitted facility
or site is or is proposed to be located (if that authority is not the
permit issuer) participated in the dispute resolution process, it may
file an answering brief within 30 days after service of the opening
brief.
    (d) Replies. (1) In PSD and other new source permit appeals, the
Environmental Appeals Board will apply a presumption against the filing
of a reply brief. By motion, appellant may seek leave of the
Environmental Appeals Board to file a reply to the answering brief,
which the Environmental Appeals Board, in its discretion, may grant.
The motion must be filed simultaneously with the proposed reply within
10 days after service of the answering brief. In its motion, appellant
must specify those arguments in the response to which appellant seeks
to reply and the reasons appellant believes it is necessary to file a
reply to those arguments. Appellant may not raise new issues or
arguments in the motion or in the reply.
    (2) In all other permit appeals under this section, appellant may
file a reply within 15 days after service of the answering brief.
Appellant may not raise new issues or arguments in the reply.
    (e) Content and form of briefs--(1) Content requirements. All
briefs filed under this section must contain, under appropriate
headings:
    (i) A table of contents, with page references;
    (ii) A table of authorities with references to the pages of the
brief where they are cited;
    (iii) A table of attachments, if required under paragraph (e)(2) of
this section; and
    (iv) A statement of compliance with the word limitation.
    (2) Attachments. Parts of the record to which the parties wish to
direct the Environmental Appeals Board's attention may be appended to
the brief submitted. If the brief includes attachments, a table must be
included that provides the title of each appended document and assigns
a label identifying where it may be found (e.g., Excerpts from the
Response to Comments Document -- Attachment 1).
    (3) Length. Unless otherwise ordered by the Environmental Appeals
Board, opening briefs and answering briefs may not exceed 14,000 words,
and all other briefs may not exceed 7,000 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 30-page limit for petitions
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 limitation. The Environmental Appeals Board may exclude any
opening brief, answering brief, or other brief 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 to file a longer brief. Such requests
are discouraged and will be granted only in unusual circumstances.
    (f) Motions--(1) In general. A request for an order or other relief
must be made by written motion unless these rules prescribe another
form.
    (2) Contents of a motion. A motion must state with particularity
the grounds for the motion, the relief sought, and the legal argument
necessary to support the motion. 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.
    (3) Response to motion. Any party may file a response to a motion.
Responses must state with particularity the grounds for opposition and
the legal argument necessary to support the motion. The response must
be filed within 15 days after service of the motion unless the
Environmental Appeals Board shortens or extends the time for response.
    (4) Reply. Any reply to a response filed under paragraph (f)(3) of
this section must be filed within 10 days after service of the
response. A reply must not introduce any new issues or arguments and
may respond only to matters presented in the response.
    (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.
    (6) 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.
    (g) Motions for extension of time. (1) 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.
    (2) Each party may only file one motion for extension and the
requested extension may not exceed 30 days.
    (h) Filing and service requirements. Documents filed under this
section must be filed and serviced in accordance with the requirements
of Sec.  124.19(c) of this chapter.
    (i) Final disposition. (1) The Environmental Appeals Board shall
issue its decision on a permit appeal by the later date occurring 60
days after the date on which:
    (i) The final brief has been submitted; or
    (ii) Oral argument is concluded.
    (2) Any written opinion issued by the Environmental Appeals Board
should only be as long as necessary to address the specific issues
presented to the Board in the appeal.
    (3) The Regional Administrator must issue a final permit decision:
    (i) When the Environmental Appeals Board issues a decision on the
merits of the appeal and the decision does not include a remand of the
proceedings; or
    (ii) Upon the completion of remand proceedings if the proceedings
are remanded, unless the Environmental Appeals Board's remand order
specifically provides that appeal of the remand decision will be
required to exhaust administrative remedies.
    (4) The Regional Administrator must promptly publish notice of any
final agency action regarding a PSD permit in the Federal Register.
    (j) Motions for reconsideration or clarification. Motions to
reconsider or clarify any final disposition of the Environmental
Appeals Board must be filed within 10 days after service of that
disposition. Motions for reconsideration must set forth the matters
claimed to have been erroneously decided and the nature of the alleged
errors. Motions for clarification must set forth with specificity the
portion of the decision for which clarification is being sought and the
reason clarification is necessary. Motions for reconsideration or
clarification under this provision must be directed to, and decided by,
the Environmental Appeals Board. Motions for reconsideration or
clarification directed to the Administrator, rather than the
Environmental Appeals Board, will not be considered, unless such motion
relates to a matter that the Environmental Appeals Board has referred
to the Administrator pursuant to Sec.  124.2 and for which the
Administrator has issued the final order. A motion for reconsideration
or clarification does not stay the effective date of the final order
unless the Environmental Appeals Board specifically so orders.
    (k) Board authority. In exercising its duties and responsibilities
under this part, the Environmental Appeals Board may do all acts and
take all measures necessary for the efficient, fair, and impartial
adjudication of issues arising in an appeal under this part including,
but not limited to, imposing procedural sanctions against a party who,
without adequate justification, fails or refuses to comply with this
part or an order of the Environmental Appeals Board. Such sanctions may
include drawing adverse inferences against a party, striking a party's
pleadings or other submissions from the record, and denying any or all
relief sought by the party in the proceeding. Additionally, for good
cause, the Board may relax or suspend the filing requirements
prescribed by these rules or Board order.
0
7. Revise Sec.  124.20 to read as follows:

Sec.  124.20   Computation of time.

    (a) Any time period scheduled to begin on the occurrence of an act
or event shall begin on the day after the act or event.
    (b) Any time period scheduled to begin before the occurrence of an
act or event shall be computed so that the period ends on the day
before the act or event.
    (c) If the final day of any time period falls on a weekend or legal
holiday, the time period shall be extended to the next working day.
    (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. 2019-24940 Filed 12-2-19; 8:45 am]
 BILLING CODE 6560-50-P


[Federal Register Volume 87, Number 220 (Wednesday, November 16, 2022)]
[Notices]
[Pages 68791-68792]
[FR Doc No: 2022-24961]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

[Docket Number FRA-2022-0082]

Petition for Waiver of Compliance

    Under part 211 of title 49 Code of Federal Regulations (CFR), this
document provides the public notice that on August 15, 2022, BNSF
Railway Company (BNSF) petitioned the Federal Railroad Administration
(FRA) for a waiver of compliance from certain provisions of the Federal
railroad safety regulations contained at 49 CFR part 232 (Brake System
Safety Standards for Freight and Other Non-Passenger Trains and
Equipment). FRA assigned the petition Docket Number FRA-2022-0082.
    Specifically, BNSF seeks relief with respect to the application of
49 CFR 232.205(c)(1)(ii)(B), Class I brake test-initial terminal
inspection, and 232.207(b)(1), Class IA brake tests-1,000-mile
inspection, for trains operating in distributive power mode. BNSF
requests to extend the maximum allowable brake pipe air flow from the
present regulatory limit of 90 cubic feet per minute (CFM) to 120 CFM
for distributed power-equipped trains under specified operating
conditions.
    In support of its petition, BNSF submitted a report from the air
flow tests conducted by BNSF in Staples, Minnesota, in June 2022. BNSF
also states that ``increasing the allowable flow to 120 CFM will even
further reduce'' walking exposures that employees encounter and that
the use of distributive power ``enhances safer train handling in cold
weather operations.''
    A copy of the petition, as well as any written communications
concerning the petition, is available for review online at
www.regulations.gov.
    Interested parties are invited to participate in these proceedings
by submitting written views, data, or comments. FRA does not anticipate
scheduling a public hearing in connection with these proceedings since
the facts do not appear to warrant a hearing. If any interested parties
desire an opportunity for oral comment and a public hearing, they
should notify FRA, in writing, before the end of the comment period and
specify the basis for their request.

    All communications concerning these proceedings should identify the
appropriate docket number and may be submitted at http://www.regulations.gov. Follow the online instructions for submitting
comments.
    Communications received by January 16, 2023 will be considered by
FRA before final action is taken. Comments received after that date
will be considered if practicable.
    Anyone can search the electronic form of any written communications
and comments received into any of our dockets by the name of the
individual submitting the comment (or signing the document, if
submitted on behalf of an association, business, labor union, etc.).
Under 5 U.S.C. 553(c), the U.S. Department of Transportation (DOT)
solicits comments from the public to better inform its processes. DOT
posts these comments, without edit, including any personal information
the commenter provides, to www.regulations.gov, as described in the
system of records notice (DOT/ALL-14 FDMS), which can be reviewed at
https://www.transportation.gov/privacy. See also https://www.regulations.gov/privacy-notice for the privacy notice of
regulations.gov.

    Issued in Washington, DC.
John Karl Alexy,
Associate Administrator for Railroad Safety Chief Safety Officer.
[FR Doc. 2022-24961 Filed 11-15-22; 8:45 am]
BILLING CODE 4910-06-P


[Federal Register: February 10, 2010 (Volume 75, Number 27)]
[Proposed Rules]
[Page 6594-6595]
[DOCID:fr10fe10-16]

-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 71

[Docket No. FAA-2009-1183; Airspace Docket No. 09-ASW-38]

Proposed Amendment of Class E Airspace; Osceola, AR

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of proposed rulemaking (NPRM).

-----------------------------------------------------------------------

SUMMARY: This action proposes to amend Class E airspace at Osceola, AR.
Decommissioning of the Osceola non-directional beacon (NDB) at Osceola
Municipal Airport, Osceola, AR, has made this action necessary for the
safety and management of Instrument Flight Rules (IFR) operations at
Osceola Municipal Airport.

DATES: 0901 UTC. Comments must be received on or before March 29, 2010.

ADDRESSES: Send comments on this proposal to the U.S. Department of
Transportation, Docket Operations, 1200 New Jersey Avenue SE., West
Building Ground Floor, Room W12-140, Washington, DC 20590-0001. You
must identify the docket number FAA-2009-1183/Airspace Docket No. 09-
ASW-38, at the beginning of your comments. You may also submit comments
through the Internet at http://www.regulations.gov. You may review the
public docket containing the proposal, any comments received, and any
final disposition in person in the Dockets Office between 9 a.m. and 5
p.m., Monday through Friday, except Federal holidays. The Docket Office
(telephone 1-800-647-5527), is on the ground floor of the building at
the above address.

FOR FURTHER INFORMATION CONTACT: Scott Enander, Central Service Center,
Operations Support Group, Federal Aviation Administration, Southwest
Region, 2601 Meacham Blvd, Fort Worth, TX 76137; telephone: (817) 321-
7716.

SUPPLEMENTARY INFORMATION:

Comments Invited

    Interested parties are invited to participate in this proposed
rulemaking by submitting such written data, views, or arguments, as
they may desire. Comments that provide the factual basis supporting the
views and suggestions presented are particularly helpful in developing
reasoned regulatory decisions on the proposal. Comments are
specifically invited on the overall regulatory, aeronautical, economic,
environmental, and energy-related aspects of the proposal.
Communications should identify both docket numbers and be submitted in
triplicate to the address listed above. Commenters wishing the FAA to
acknowledge receipt of their comments on this notice must submit with
those comments a self-addressed, stamped postcard on which the
following statement is made: ``Comments to Docket No. FAA-2009-1183/
Airspace Docket No. 09-ASW-38.'' The postcard will be date/time stamped
and returned to the commenter.

Availability of NPRM's

    An electronic copy of this document may be downloaded through the
Internet at http://www.regulations.gov. Recently published rulemaking
documents can also be accessed through the FAA's Web page at http://
www.faa.gov/airports_airtraffic/

air_traffic/publications/airspace_amendments/.
    You may review the public docket containing the proposal, any
comments received, and any final disposition in person in the Dockets
Office (see ``ADDRESSES'' section for address and phone number) between
9 a.m and 5 p.m., Monday through Friday, except Federal holidays. An
informal docket may also be examined during normal business hours at
the office of the Central Service Center, 2601 Meacham Blvd, Fort
Worth, TX 76137.
    Persons interested in being placed on a mailing list for future
NPRM's should contact the FAA's Office of Rulemaking<PHONE_NUMBER>, to
request a copy of Advisory Circular No. 11-2A, Notice of Proposed
Rulemaking Distribution System, which describes the application
procedure.

The Proposal

    This action proposes to amend Title 14, Code of Federal Regulations
(14 CFR), Part 71 by modifying Class E airspace extending upward from
700 feet above the surface for standard instrument approach procedures
at Osceola Municipal Airport, Osceola, AR. Airspace reconfiguration is
necessary due to the decommissioning of the Osceola NDB and the
cancellation of the NDB approach. Controlled airspace is necessary for
the safety and management of IFR operations at the airport.
    Class E airspace areas are published in Paragraph 6005 of FAA Order
7400.9T, dated August 27, 2009, and effective September 15, 2009, which
is incorporated by reference in 14 CFR 71.1. The Class E airspace
designation listed in this document would be published subsequently in
the Order.
    The FAA has determined that this proposed regulation only involves
an established body of technical regulations for which frequent and
routine amendments are necessary to keep them operationally current.
It, therefore, (1) is not a ``significant regulatory action'' under
Executive Order 12866; (2) is not a ``significant rule'' under DOT
Regulatory Policies and Procedures (44 FR 11034; February 26, 1979);
and (3) does not warrant preparation of a Regulatory Evaluation as the
anticipated impact is so minimal. Since this is a routine matter that
will only affect air traffic procedures and air navigation, it is
certified that this rule, when promulgated, will not have a significant
economic impact on a substantial number of small entities under the
criteria of the Regulatory Flexibility Act.
    The FAA's authority to issue rules regarding aviation safety is
found in Title 49 of the U.S. Code. Subtitle 1, Section 106 describes
the authority of the FAA Administrator. Subtitle VII, Aviation
Programs, describes in more detail the scope of the agency's authority.
This rulemaking is promulgated under the authority described in
Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the
FAA is charged with prescribing regulations to assign the use of
airspace necessary to ensure the safety of aircraft and the efficient
use of airspace. This regulation is within the scope of that authority
as it would modify controlled airspace at Osceola Municipal Airport,
Osceola, AR.

List of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (Air).

The Proposed Amendment

    In consideration of the foregoing, the Federal Aviation
Administration proposes to amend 14 CFR Part 71 as follows:

PART 71--DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR
TRAFFIC SERVICE ROUTES; AND REPORTING POINTS

    1. The authority citation for part 71 continues to read as follows:

    Authority:  49 U.S.C. 106(g); 40103, 40113, 40120; E.O. 10854,
24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.

Sec.  71.1  [Amended]

    2. The incorporation by reference in 14 CFR 71.1 of FAA Order
7400.9T, Airspace Designations and Reporting Points, signed August 27,
2009, and effective September 15, 2009, is amended as follows:

Paragraph 6005 Class E Airspace areas extending upward from 700 feet
or more above the surface of the earth.
* * * * *

ASW AR E5 Osceola, AR [Amended]

Osceola Municipal Airport, AR
    (Lat. 35[deg]41'28'' N., long. 90[deg]00'36'' W.)

    That airspace extending upward from 700 feet above the surface
within a 6.4-mile radius of Osceola Municipal Airport.

    Issued in Fort Worth, TX on February 1, 2010.
Anthony D. Roetzel,
Manager, Operations Support Group, ATO Central Service Center.
[FR Doc. 2010-2929 Filed 2-9-10; 8:45 am]
BILLING CODE 4901-13-P