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Breakfast briefing conducted by Michael Zody, Jacob Santini and Keli Beard at Parsons Behle & Latimer on May 30, 2012 in Salt Lake City.

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  1. 1. S A L T L A K E C I T Y | R E N O | B O I S E | L A S V E G A S | P A R S O N S B E H L E . C O MYour EnvironmentalPermit to Operate:Recent Developmentsin Utah LegislationMichael A. ZodyJacob A. SantiniKeli BeardWednesdayMay 30, 2012Salt Lake City
  2. 2. Backdrop to DEQ Revisions Seeing more permit challenges, with more activeNGOs– Putting pressure on DEQ staff, and AGlawyers who represent DEQ Earlier responses– 2008 shift to ALJ hearing process, with AGlawyers serving as ALJs– 2011 rulemaking to match ALJ law andconsolidate administrative procedures• R306-5 2
  3. 3. What SB11 and 21 Do SB 21 the “Boards” bill– Restructures the DEQ Boards– Shifts adjudication to DEQ Director, butpreserves board rulemaking power SB 11 the “Record Review” bill– Shifts from discovery and evidentiary hearingsto record review proceedings, modeled onEPA permit appeal process (40 CFR Part124)– Goal is to streamline and shorten the appealprocess 3
  4. 4. What They Don’t Do SB 11 and 21:– Do not revise any of the permit requirements– Do not revise the permitting process But, the revisions in the Record Review bill will– Cause parties to file more detailed publiccomments– Put more pressure on the permitting process4
  5. 5. Another Round of Rulemaking DEQ is working on rules to implementSB11 and 21 Is also considering revisions toadministrative rules enacted last summer Expect to start seeing draft rules and anupcoming public comment period5
  6. 6. The Boards Bill Changes to the Boards– In approving SB 21, the Utah Legislatureimposed significant revisions to the citizen-based boards created under the umbrella ofthe Utah Department of Environmental Quality6
  7. 7. The Boards Bill UDEQ Boards– Utah Air Quality Board– Utah Radiation Control Board– Utah Drinking Water Board– Utah Water Quality Board– Solid and Hazardous Waste Control Board7
  8. 8. The Boards Bill Board Composition– All Boards now will have 9 members– The DEQ Executive Director is a member ofeach Board. But the Executive Director canonly vote to break a tie between the othermembers– Executive Director may designate a UDEQemployee to sit in her place– Does away with “Executive Secretaries” of theBoards, uses label “Division Directors” 8
  9. 9. The Boards Bill Timeline for Re-composition of the Boards– July 1, 2012• Radiation Control– March 1, 2013• Air Quality; Water Quality; Solid andHazardous Waste– May 1, 2013• Drinking Water9
  10. 10. The Boards Bill Air Quality Board Composition (pre-S.B. 21 – 11members)– Executive Director– 1– professional who is either (1) a Utah-licensed physician,professional engineer, or scientist– 2 – government representatives– 1– representative from the mining industry– 1– representative from the fuels industry– 1– representative from the manufacturing industry– 1 – public representative (environmental/community interestNGO)– 1– public health representative10
  11. 11. The Boards Bill Radiation Control Board Composition (pre-S.B.21 – 13 members)– Executive Director– 1– health physicist or radiation safety professional– 2 – government representatives– 1– representative from the radioactive waste industry– 1– representative from the uranium milling industry– 1– representative from the regulated industry– 1– public representative (environmental/community interestNGO)– 1– public health representative11
  12. 12. The Boards Bill Drinking Water Board Composition (pre-S.B. 21– 11 members)– Executive Director– 1– Utah-licensed engineer– 2 – elected officials representing municipal government– 1– representative from an improvement, water conservancy, ormetropolitan water district– 1– representative from an entity that manages/operates a public watersystem– 1– representative from the water research community or highereducation– 1– public representative (environmental/community interest NGO)– 1– public health representative12
  13. 13. The Boards Bill Water Quality Board Composition (pre-S.B. 21 –11 members)– Executive Director– 1– Utah-licensed physician, professional engineer, or scientist– 2 – government representatives– 1– representative of the mineral industry– 1– representative of the manufacturing industry– 1– representative of the agricultural/livestock industry– 1– public representative (environmental/community interestNGO)– 1– public health representative13
  14. 14. The Boards Bill Composition of the Solid and Hazardous WasteControl Board (pre-S.B. 21 – 13 members)– Executive Director– 1– Utah-licensed professional engineer– 2– government representatives– 1– representative from the manufacturing, mining, or fuel industry– 1– representative from the private sold/hazardous waste disposalindustry– 1– representative from the private hazardous waste recovery industry– 1– public representative (environmental/community interest NGO)– 1– public health representative14
  15. 15. The Record Review Bill Only Applies to “Permits” (not NOVs)– “Permit” means any of the following issuedunder this title:(i) a permit(ii) a plan(iii) a license(iv) an approval order(v) another administrative authorization madeby a director15
  16. 16. The Record Review Bill What is a “Permit”– “another administrative authorization made bya director”– Broad language, not substantially differentfrom prior rule Permits will no longer issue fromExecutive Secretaries– Will issue from Division Directors16
  17. 17. The Record Review Bill Substance of the Permit Application– Legislation does not change the substantiverequirements for an application17
  18. 18. The Record Review Bill Notice and Comment Requirements– Still look to primary statute/rules– i.e., R307-401-7 governs notice and commentfor air permits18
  19. 19. The Record Review Bill Preservation – Standard Not SubstantivelyDifferent– Prior Rule (R305-6-105):Comments are sufficient to preserve the rightto contest an order, for each issue raised, ifthe comments provide sufficient information togive notice to the agency to allow the agencyto fully consider the issue before making adetermination19
  20. 20. The Record Review Bill Preservation– Statutory Standard (new):If a public comment period was provided during thepermit application process, a person who challengesa permit order, including the permit applicant, mayonly raise an issue or argument during the permitreview adjudicative proceeding that: (a) the personraised during the public comment period; and (b) wassupported with sufficient information ordocumentation to enable the director to fully considerthe substance and significance of the issue20
  21. 21. The Record Review Bill Preservation exception: issue was not“reasonably ascertainable before or duringthe public comment period” Preservation – Quality ofComments/Supporting Documentation– Statute does not address what is required tosupport a comment with “sufficient information”– Department will likely address this issue by rule21
  22. 22. The Record Review Bill Change in Administrative Appeal– Pre-S.B. 11• Phase 1: ALJ review (recommended decision)• Phase 2: Board review (final review)– Post-S.B. 11• Phase 1: ALJ review (recommended decision)• Phase 2: UDEQ Executive Director (Amanda Smith)(final review)22
  23. 23. The Record Review Bill Review before the adoption of S.B. 11– ALJ presided over a trial-like proceeding• Discovery• Subpoenas• Live testimony (allowing for “witness testimony,cross-examination, oral argument,” and allowingparties to “present evidence”)23
  24. 24. The Record Review Bill Method of review is significantly different– ALJ conducts a permit review proceeding“based only on the administrative record andnot as trial de novo”– Executive director will also review the ALJ’srecommended decision based on theadministrative record24
  25. 25. The Record Review Bill What is the Record?– Information that was before the agency, and informedthe agency’s decision, including:• the permit application, draft permit, and final permit• each statement of basis, fact sheet, engineering review, orother substantive explanation designated by the director aspart of the basis for the decision relating to the permit order• the notice and record of each public comment period• the notice and record of each public hearing, including oralcomments made during the public hearing• written comments submitted during the public comment period25
  26. 26. The Record Review Bill What is the “Record” continued• responses to comments that are designated by thedirector as part of the basis for the decisionrelating to the permit order• any information that is:» requested by and submitted to the director» designated by the director as part of the basis for thedecision relating to the permit order• any additional information specified by rule• any information agreed to by the parties• information allowed through supplementation26
  27. 27. The Record Review Bill The Record Can be Supplemented with:– “technical or factual information”– May include testimonial evidence27
  28. 28. The Record Review Bill Test for supplementation– The party attempting to add new informationmust prove• Good cause exists to supplement• Supplementation is in the interest of justice• Supplementation is necessary for resolution of theissues28
  29. 29. The Record Review Bill The standard governing the ALJ’s andExecutive Director’s review is unchanged– The Division Director’s decision on thecontested issue shall be affirmed if• “factual, technical, and scientific agencydeterminations are supported by substantialevidence taken from the record as a whole”29
  30. 30. The Record Review Bill Most procedures are unchanged– Challenge to permitting decision – must be filed(and received by agency) within 30 days ofissuance by the agency– Stays – not automatic; a party must petition for astay– Permittee is an automatic party30
  31. 31. Practical Issues Application to Permits in the Pipeline?– Good argument that all permits in process asof effective date, May 8, 2012, should comeunder the new laws– However, UDEQ has taken position that newlaws, in particular the Record Review bill, willonly apply if permit was open for publiccomment after effective date31
  32. 32. Practical Issues Communicating with the agency– Statutes do not prohibit pre-adjudicationcommunications– However, once an adjudication commences• ALJ – no ex parte communications• Executive Director (Amanda Smith) – No ex partecommunications» “The executive director may not participate inan ex parte communication with a party to thepermit review adjudicative proceedingregarding the merits of the permit reviewadjudicative proceeding”32
  33. 33. Responding to AdverseComments Agency must respond directly and withexplanation; work with agency as much asit will let you Consider submitting your own comments– If concerned agency will not adequatelyaddress issues, but agency must respond toyours as well– Agency may not like getting comments fromapplicant33
  34. 34. Practical Issues Responding to 11th-Hour Comments– The rules generally do not give an applicantthe express ability to respond to commentsafter the close of the comment period• This may be addressed in rulemaking– Consider whether agency can extendcomment period– Safety Valves• Ask agency to ask you for the information• Move to supplement record in appealproceeding34
  35. 35. Mistakes to Avoid Not consulting legal counsel, particularlyon complex or controversial permits Assuming agency knows the law Not considering EPA over-filing potential Unsupported agency assertions– Agency has to state reasons, blanketassertions are not enough– Agency told us to do it that way, standingalone, is not a defense35
  36. 36. Other Mistakes and Issues Agency departs from prior practice or guidance,without good reasons in record New terms in final permit– opens door to new evidence on appeal– if new substantive analysis in response tocomments, agency must consider if it must besent back out to public comment Adverse terms in your draft permit– You most likely must file comments inopposition if you want to challenge thoseterms36