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Air Quality Program

Appealing Prevention of Significant
Deterioration (PSD) Permits

Appealing Prevention of Significant Deterioration permits

There are 2 possible administrative appeals that can be submitted on an Ecology issued PSD permit. These are to the EPA’s Environmental Appeals Board (EAB) and/or to the Washington State’s Pollution control hearings Board (PCHB). There are slightly different criteria for filing an appeal for these two different administrative appeal bodies. For details on the requirements of each body, please consult them directly using the contact information given below.

Appeals to the EAB

The Environmental Appeals Board is a part of the Office of the EPA Administrator. As such, this body reviews and renders the initial administrative decisions on all appeals of federal permits that are appealed to the Administrator. Reviews of permits are based on the administrative record for the permit , not new issues. Permit appeals are intended to be on matters of importance and not trivial issues. As noted in a recent decision,

"The burden of demonstrating that review is warranted rests with the petitioner, who must state his/her objections to the permit and explain why the permit issuer’s previous response to those objections is clearly erroneous, an abuse of discretion, or otherwise warrants review."

To appeal a PSD permit to the EAB, the appellant (petitioner in EAB terms) must meet the following criteria contained in 40 CFR 124.19:

The appellant must have filed comments during the public notice period or participated in the public hearing that may have been held on the draft permit

A person that does not file comments or participate in the public hearing on the draft permit can only appeal those elements of the permit that are changed from the draft.

The appellant must include:

a. A statement of the reasons supporting that review

i. A demonstration that the issues being raised in the appeal were raised during the public comment period

ii. Comments submitted during the public content period met the requirements for submittal of comments (see section Commenting on the draft PSD permit)

b. Adequate documentation to show that the approval     condition(s) in question are based on:

i. A finding of fact or conclusion that is clearly erroneous OR

ii. An exercise of discretion the board should review OR

iii. An important policy consideration the board should review.

The 30 day appeal period begins the day the appellant is served (receives notice) of the issuance of the final permit.

An appeal for review to the EAB is a prerequisite to filing an appeal in federal court.

Petitions to review an Ecology or EPA issued PSD permit must arrive at the EPA’s EAB within 30 days of issuance of the final PSD approval/permit.

The appeal must meet EAB format requirements and be mailed to

U.S. Environmental Protection Agency
Clerk of the Board, Environmental Appeals Board (MC 1103B)
Ariel Rios Building
1200 Pennsylvania Avenue, N.W.
Washington, D.C. 20460-0001

Or hand delivered to

U.S. Environmental Protection Agency
Clerk of the Board, Environmental Appeals Board
Colorado Building
1341 G Street, NW
Suite 600
Washington, D.C. 20005

Documents that are hand-carried may be delivered to the Clerk of the Board between 8:30 a.m. and 4:30 p.m., Monday through Friday (excluding federal holidays).

In either case, the Board requests one original and five copies of any filing. Where exhibits are more than 30 pages, the Board requests that three sets of exhibits be filed.

For additional information on format, filing requirements, etc please consult the board’s internet site at: http://www.epa.gov/eab/

Appeals to the Washington State PCHB

The Pollution Control Hearings Board hears appeals from orders and decisions made by the Department of Ecology and other agencies (including local air pollution control agencies) as provided by law.  The Board's sole function is to provide litigants a full and complete administrative hearing, as promptly as possible, followed by a fair and impartial written decision based on the facts and law.  The PCHB is not affiliated with the Department of Ecology or any other state agency.

A PSD or NSR permit denial or approval is a decision of the Department of Ecology that can be appealed to the PCHB.

To file an appeal with the PCHB, you must file a notice of appeal with the PCHB within 30 days of the data that a copy of the agency Order or Decision has been sent by US mail to the appealing party by the agency making the decision. An appeal is filed with the PCHB on the date the PCHB actually receives the notice of appeal. Upon receiving the appeal, the PCHB will acknowledge receipt of the appeal.

In the notice of appeal, the appellant must supply the PCHB, in writing, the following information:

Your name and address (mailing and legal, if different) and, if applicable, the name and address of your representative.

A daytime phone number (and fax number if available) for you and your representative.

Identification of the parties to the appeal.

A copy of the order or decision you are appealing, and if the order or decision followed an application, a copy of the application.

A clear, concise statement of the facts supporting your appeal.

The relief you seek (what you want the Board to do).

A statement, signed by you or your representative, attesting that the content of the appeal is true.

The notice of appeal can be U.S. Postal Service mailed to:

Pollution Control Hearings Board
P.O. Box 40903
Lacey, WA 98504-0903

OR:

The notice of appeal can be hand delivered or "other" mail service (UPS, FedEx, etc.) (NO U.S. Postal Service deliveries) to:
Pollution Control Hearings Board
4224 - 6th Avenue SE, Rowe Six, Bldg. 2
Lacey, Washington 98504-0903

A copy of the appeal must also be sent to the agency that made the decision being appealed.

Additional information about the appeal process and the PCHB’s hearing process can be found in the Document "Your Right to Be Heard," prepared by the Board and found at http://www.eho.wa.gov/Documents/YourRightToBeHeard_PCHB.pdf.

Additional details about the activities, decisions, laws and regulations used by, and procedures of the PCHB can be found at the U.S.EPA Environmental Appeals Board.

 

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