Environmental Appeals Board U.S. Environmental Protection Agency Kathie A. Stein, Judge

Organization of EPA’s Administrative Adjudication System
• Agencies may enforce legal requirements either in court or in the administrative forum. • Tribunals within EPA:
– Administrative Law Judges (ALJs) conduct administrative evidentiary enforcement trials to make liability and penalty determinations – Environmental Appeals Board (EAB) hears appeals under all of the pollution control laws that EPA administers, including appeals from ALJ penalty cases and petitions to review permitting decisions made by EPA regional offices or a State. EAB decisions are the final word of EPA on that matter and are precedential for future cases. Within the Agency

Administrative Law Judge Environmental Appeals Board

• Must comply with Administrative Procedure Act (APA) 5 U.S.C. § 551 et seq. and EPA procedural rules for adjudicating penalties 40 C.F.R. Part 22 and permit determinations 40 C.F.R. Part 124.

Federal Courts

Hallmarks of the Administrative Adjudicative Process
• • • • • • • Adjudicatory Independence Public Transparency Prohibition on Ex Parte Communication Full and Fair Hearings Record-based Decision-Making Adjudicative Consistency Alternative Forum to Federal Court that Resolves Cases More Quickly and at Less Expense

Adjudicatory Independence & Transparency
• Administrative Judges are independent of other agency offices and not involved in investigation, enforcement, or policy making
– Administrative judges cannot have been involved in the investigation or prosecution – Administrative judges can be disqualified from hearing a case based on personal bias or financial stake in the outcome

• Transparent decision making
– – – – Rule against ex parte communication All hearings are open to the public Requirement for a written record All EAB decisions, orders and briefs available to the public online

Ex Parte Communication
• All communication must be made part of the record. All off-the-record communication about the merits of the case is prohibited:
– Between a party and the judge; – Between agency prosecutors or investigators and the judge; – Between any person outside the agency and the judge.

• If ex parte contact occurs, judge must disclose the communication and place it in the record immediately • The judge may impose a sanction, including dismissal

Full and Fair Hearings
• Right to be heard: Either before an ALJ or before the EAB, parties have the right to present their best case to the decision maker. • Before an ALJ: parties have the ability to present witnesses and documentary evidence and respond to evidence presented by the other side. This body of evidence will form the basis of the judge’s decision. Evidence must be “reliable, probative and substantial evidence.” (APA §556d) • Before the EAB: Decisions are based on the administrative record of the appealed decision (ALJ or permit decision). Parties have a full opportunity to advocate their position by filing briefs with the EAB, presenting oral argument where the Board determines that would be beneficial, and moving to have an EAB final decision reconsidered.

Decisions Based on the Record
• Duty of the ALJ: make findings of fact and law and issue initial or recommended enforcement decisions based solely on evidence put into a contemporaneous record. Transcripts, exhibits and other formally filed papers constitute “the exclusive record for decision.” • Duty of EAB: make a determination to reverse or uphold an ALJ enforcement decision, or in the permitting context, to uphold the permit-issuing agency’s determination or remand the decision back to the decision maker for further review consistent with EAB’s holdings. All decisions are based on the record made below: the evidentiary record of the ALJ, or the body of evidence relied on by the permit-issuing agency and compiled in an administrative record.

Transparency of Decisions
• ALJ and EAB hearings are open to the public. • Decisions of an ALJ or the EAB explain the basis of the decision in detail and are made available to the public via the EPA ALJ and EPA EAB websites. www.epa.gov/eab • All orders issued in any case and all filings by the parties are also part of the record of the case and available on the website. • EAB decisions are also published in bound volumes, Environmental Administrative Decisions.

Adjudicative Consistency
• EAB decisions constitute the final word of the Agency on a particular matter and serve as precedent for future cases. • Publication of EAB decisions via the web and published volumes provides access to the Board’s decisions on any given topic and promotes predictability on the part of regulated industry and interested citizens.

Alternative Forum to Federal Court that Resolves Cases More Quickly and at Less Expense
• Efficiency: – Administrative adjudication is typically faster than litigation in federal court. – High percentage of cases brought administratively are resolved at the administrative stage through litigation or mediation and are not appealed to federal court. • Expense: Administrative litigation is typically less expensive than litigation in federal court. • Deferential standard of review: If appealed, federal courts typically defer to EAB decisions, further discouraging appealing administrative cases to federal court.