EPA finalizes rule to speed up disputed industry pollution permits

The Environmental Protection Agency (EPA) on Wednesday finalized a rule that will speed up the process for reviewing industry permits in a move critics say will limit communities’ ability to fight them. 

Disputes between industries seeking air, water and hazardous waste permits and communities challenging them typically go before the EPA’s Environmental Appeals Board (EAB). 

“Over the years, the scope of responsibilities for EPA’s EAB has changed and the permitting appeal has become too lengthy,” EPA Administrator Andrew Wheeler said in a release. “Making the reviews more streamlined and the judicial review more prompt will lead to better certainty and a fairer process for both those applying for EPA permits and for the public.”

But opponents argue the new process will prevent communities from getting a fair shake and could ultimately funnel more cases into lengthy and expensive court challenges.

The policy change has already faced significant opposition from Democratic lawmakers, and those critiques were raised again Wednesday.

“Far from ‘modernizing’ EPA’s air, water and hazardous waste permit appeals process, this rule would take us backwards – back to a time when industries could pollute without consequence and when Americans had little say over the projects built in their own backyard,” Sen. Tom Carper (D-Del.), ranking member of the Senate Environment and Public Works Committee, wrote in a letter to the agency shortly before the final rule was released.

“This proposed rule is yet another short-sighted attack on the ability of communities, including low-income communities and communities of color, to have a meaningful voice in projects that impact their health,” he added.

The new rule would give the EAB 60 days to make decisions on challenged permits and allow the board to give itself a one-time 60-day extension for issues that it decides need more time.

It would also get rid of the EAB’s ability to review regional permits on its own, though the agency says this option is rarely used and creates 12-year term limits for EAB judges. It allows the EPA administrator to weigh in on any matter before the board.

The rule was first proposed in December, although the finalized version contained significant differences.

That proposal would have let parties challenge permits through either an EAB hearing or an alternative dispute resolution (ADR), but if the groups couldn’t agree, the permit would be automatically approved but subject to a federal court challenge. 

This provision did not make it into the final rule. 

“Nothing in this action changes the current administrative exhaustion requirements, which require permittees and interested parties to file an appeal with the EAB before challenging a permitting decision in federal court,” the rule says. “Moreover, nothing in this action changes the EAB’s existing ADR program, which will remain available to interested parties.”

Unlike the proposal, the new rule would also not prevent outside parties from filing amicus briefs, instead limiting the briefs to 15 pages. 

The agency’s plans for the EAB have long sparked concern that any changes would tip the scales in favor of industry.

Former EPA Administrator William Reilly, who headed the EPA under former President George H.W. Bush, created the EAB and called EPA’s logic behind the initial proposal “superficial.” 

When the EAB was created in 1992, the agency was “dealing with increasing and justified demands from poor and disadvantaged communities for greater participation opportunities in environmental decision making processes,” he wrote in a January letter to the EPA opposing the changes, saying he designed the EAB to be “more accessible and less costly than traditional litigation avenues.”

Reilly wrote that the rule would replace “what has been a meaningful administrative opportunity or dispute resolution with a shell of a process that exists in appearance only. It would effectively gut the function and purposes behind it.”