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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 M
Your Environmental
Permit to Operate:
Recent Developments
in Utah Legislation
Michael A. Zody
Jacob A. Santini
Keli Beard
Wednesday
May 30, 2012
Salt Lake City
Backdrop to DEQ Revisions
 Seeing more permit challenges, with more active
NGOs
– Putting pressure on DEQ staff, and AG
lawyers who represent DEQ
 Earlier responses
– 2008 shift to ALJ hearing process, with AG
lawyers serving as ALJs
– 2011 rulemaking to match ALJ law and
consolidate administrative procedures
• R306-5 2
What SB11 and 21 Do
 SB 21 the “Boards” bill
– Restructures the DEQ Boards
– Shifts adjudication to DEQ Director, but
preserves board rulemaking power
 SB 11 the “Record Review” bill
– Shifts from discovery and evidentiary hearings
to record review proceedings, modeled on
EPA permit appeal process (40 CFR Part
124)
– Goal is to streamline and shorten the appeal
process 3
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 public
comments
– Put more pressure on the permitting process
4
Another Round of Rulemaking
 DEQ is working on rules to implement
SB11 and 21
 Is also considering revisions to
administrative rules enacted last summer
 Expect to start seeing draft rules and an
upcoming public comment period
5
The Boards Bill
 Changes to the Boards
– In approving SB 21, the Utah Legislature
imposed significant revisions to the citizen-
based boards created under the umbrella of
the Utah Department of Environmental Quality
6
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 Board
7
The Boards Bill
 Board Composition
– All Boards now will have 9 members
– The DEQ Executive Director is a member of
each Board. But the Executive Director can
only vote to break a tie between the other
members
– Executive Director may designate a UDEQ
employee to sit in her place
– Does away with “Executive Secretaries” of the
Boards, uses label “Division Directors” 8
The Boards Bill
 Timeline for Re-composition of the Boards
– July 1, 2012
• Radiation Control
– March 1, 2013
• Air Quality; Water Quality; Solid and
Hazardous Waste
– May 1, 2013
• Drinking Water
9
The Boards Bill
 Air Quality Board Composition (pre-S.B. 21 – 11
members)
– 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 interest
NGO)
– 1– public health representative
10
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 interest
NGO)
– 1– public health representative
11
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, or
metropolitan water district
– 1– representative from an entity that manages/operates a public water
system
– 1– representative from the water research community or higher
education
– 1– public representative (environmental/community interest NGO)
– 1– public health representative
12
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 interest
NGO)
– 1– public health representative
13
The Boards Bill
 Composition of the Solid and Hazardous Waste
Control 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 disposal
industry
– 1– representative from the private hazardous waste recovery industry
– 1– public representative (environmental/community interest NGO)
– 1– public health representative
14
The Record Review Bill
 Only Applies to “Permits” (not NOVs)
– “Permit” means any of the following issued
under this title:
(i) a permit
(ii) a plan
(iii) a license
(iv) an approval order
(v) another administrative authorization made
by a director
15
The Record Review Bill
 What is a “Permit”
– “another administrative authorization made by
a director”
– Broad language, not substantially different
from prior rule
 Permits will no longer issue from
Executive Secretaries
– Will issue from Division Directors
16
The Record Review Bill
 Substance of the Permit Application
– Legislation does not change the substantive
requirements for an application
17
The Record Review Bill
 Notice and Comment Requirements
– Still look to primary statute/rules
– i.e., R307-401-7 governs notice and comment
for air permits
18
The Record Review Bill
 Preservation – Standard Not Substantively
Different
– Prior Rule (R305-6-105):
Comments are sufficient to preserve the right
to contest an order, for each issue raised, if
the comments provide sufficient information to
give notice to the agency to allow the agency
to fully consider the issue before making a
determination
19
The Record Review Bill
 Preservation
– Statutory Standard (new):
If a public comment period was provided during the
permit application process, a person who challenges
a permit order, including the permit applicant, may
only raise an issue or argument during the permit
review adjudicative proceeding that: (a) the person
raised during the public comment period; and (b) was
supported with sufficient information or
documentation to enable the director to fully consider
the substance and significance of the issue
20
The Record Review Bill
 Preservation exception: issue was not
“reasonably ascertainable before or during
the public comment period”
 Preservation – Quality of
Comments/Supporting Documentation
– Statute does not address what is required to
support a comment with “sufficient information”
– Department will likely address this issue by rule
21
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
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 allowing
parties to “present evidence”)
23
The Record Review Bill
 Method of review is significantly different
– ALJ conducts a permit review proceeding
“based only on the administrative record and
not as trial de novo”
– Executive director will also review the ALJ’s
recommended decision based on the
administrative record
24
The Record Review Bill
 What is the Record?
– Information that was before the agency, and informed
the agency’s decision, including:
• the permit application, draft permit, and final permit
• each statement of basis, fact sheet, engineering review, or
other substantive explanation designated by the director as
part 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 oral
comments made during the public hearing
• written comments submitted during the public comment period
25
The Record Review Bill
 What is the “Record” continued
• responses to comments that are designated by the
director as part of the basis for the decision
relating 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 the
decision relating to the permit order
• any additional information specified by rule
• any information agreed to by the parties
• information allowed through supplementation
26
The Record Review Bill
 The Record Can be Supplemented with:
– “technical or factual information”
– May include testimonial evidence
27
The Record Review Bill
 Test for supplementation
– The party attempting to add new information
must prove
• Good cause exists to supplement
• Supplementation is in the interest of justice
• Supplementation is necessary for resolution of the
issues
28
The Record Review Bill
 The standard governing the ALJ’s and
Executive Director’s review is unchanged
– The Division Director’s decision on the
contested issue shall be affirmed if
• “factual, technical, and scientific agency
determinations are supported by substantial
evidence taken from the record as a whole”
29
The Record Review Bill
 Most procedures are unchanged
– Challenge to permitting decision – must be filed
(and received by agency) within 30 days of
issuance by the agency
– Stays – not automatic; a party must petition for a
stay
– Permittee is an automatic party
30
Practical Issues
 Application to Permits in the Pipeline?
– Good argument that all permits in process as
of effective date, May 8, 2012, should come
under the new laws
– However, UDEQ has taken position that new
laws, in particular the Record Review bill, will
only apply if permit was open for public
comment after effective date
31
Practical Issues
 Communicating with the agency
– Statutes do not prohibit pre-adjudication
communications
– However, once an adjudication commences
• ALJ – no ex parte communications
• Executive Director (Amanda Smith) – No ex parte
communications
» “The executive director may not participate in
an ex parte communication with a party to the
permit review adjudicative proceeding
regarding the merits of the permit review
adjudicative proceeding”
32
Responding to Adverse
Comments
 Agency must respond directly and with
explanation; work with agency as much as
it will let you
 Consider submitting your own comments
– If concerned agency will not adequately
address issues, but agency must respond to
yours as well
– Agency may not like getting comments from
applicant
33
Practical Issues
 Responding to 11th-Hour Comments
– The rules generally do not give an applicant
the express ability to respond to comments
after the close of the comment period
• This may be addressed in rulemaking
– Consider whether agency can extend
comment period
– Safety Valves
• Ask agency to ask you for the information
• Move to supplement record in appeal
proceeding
34
Mistakes to Avoid
 Not consulting legal counsel, particularly
on complex or controversial permits
 Assuming agency knows the law
 Not considering EPA over-filing potential
 Unsupported agency assertions
– Agency has to state reasons, blanket
assertions are not enough
– Agency told us to do it that way, standing
alone, is not a defense
35
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 to
comments, agency must consider if it must be
sent back out to public comment
 Adverse terms in your draft permit
– You most likely must file comments in
opposition if you want to challenge those
terms
36

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Your_Environmental_Permit_to_Operate_Recent_Developments_in_Utah_Legislation

  • 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 M Your Environmental Permit to Operate: Recent Developments in Utah Legislation Michael A. Zody Jacob A. Santini Keli Beard Wednesday May 30, 2012 Salt Lake City
  • 2. Backdrop to DEQ Revisions  Seeing more permit challenges, with more active NGOs – Putting pressure on DEQ staff, and AG lawyers who represent DEQ  Earlier responses – 2008 shift to ALJ hearing process, with AG lawyers serving as ALJs – 2011 rulemaking to match ALJ law and consolidate administrative procedures • R306-5 2
  • 3. What SB11 and 21 Do  SB 21 the “Boards” bill – Restructures the DEQ Boards – Shifts adjudication to DEQ Director, but preserves board rulemaking power  SB 11 the “Record Review” bill – Shifts from discovery and evidentiary hearings to record review proceedings, modeled on EPA permit appeal process (40 CFR Part 124) – Goal is to streamline and shorten the appeal process 3
  • 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 public comments – Put more pressure on the permitting process 4
  • 5. Another Round of Rulemaking  DEQ is working on rules to implement SB11 and 21  Is also considering revisions to administrative rules enacted last summer  Expect to start seeing draft rules and an upcoming public comment period 5
  • 6. The Boards Bill  Changes to the Boards – In approving SB 21, the Utah Legislature imposed significant revisions to the citizen- based boards created under the umbrella of the Utah Department of Environmental Quality 6
  • 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 Board 7
  • 8. The Boards Bill  Board Composition – All Boards now will have 9 members – The DEQ Executive Director is a member of each Board. But the Executive Director can only vote to break a tie between the other members – Executive Director may designate a UDEQ employee to sit in her place – Does away with “Executive Secretaries” of the Boards, uses label “Division Directors” 8
  • 9. The Boards Bill  Timeline for Re-composition of the Boards – July 1, 2012 • Radiation Control – March 1, 2013 • Air Quality; Water Quality; Solid and Hazardous Waste – May 1, 2013 • Drinking Water 9
  • 10. The Boards Bill  Air Quality Board Composition (pre-S.B. 21 – 11 members) – 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 interest NGO) – 1– public health representative 10
  • 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 interest NGO) – 1– public health representative 11
  • 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, or metropolitan water district – 1– representative from an entity that manages/operates a public water system – 1– representative from the water research community or higher education – 1– public representative (environmental/community interest NGO) – 1– public health representative 12
  • 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 interest NGO) – 1– public health representative 13
  • 14. The Boards Bill  Composition of the Solid and Hazardous Waste Control 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 disposal industry – 1– representative from the private hazardous waste recovery industry – 1– public representative (environmental/community interest NGO) – 1– public health representative 14
  • 15. The Record Review Bill  Only Applies to “Permits” (not NOVs) – “Permit” means any of the following issued under this title: (i) a permit (ii) a plan (iii) a license (iv) an approval order (v) another administrative authorization made by a director 15
  • 16. The Record Review Bill  What is a “Permit” – “another administrative authorization made by a director” – Broad language, not substantially different from prior rule  Permits will no longer issue from Executive Secretaries – Will issue from Division Directors 16
  • 17. The Record Review Bill  Substance of the Permit Application – Legislation does not change the substantive requirements for an application 17
  • 18. The Record Review Bill  Notice and Comment Requirements – Still look to primary statute/rules – i.e., R307-401-7 governs notice and comment for air permits 18
  • 19. The Record Review Bill  Preservation – Standard Not Substantively Different – Prior Rule (R305-6-105): Comments are sufficient to preserve the right to contest an order, for each issue raised, if the comments provide sufficient information to give notice to the agency to allow the agency to fully consider the issue before making a determination 19
  • 20. The Record Review Bill  Preservation – Statutory Standard (new): If a public comment period was provided during the permit application process, a person who challenges a permit order, including the permit applicant, may only raise an issue or argument during the permit review adjudicative proceeding that: (a) the person raised during the public comment period; and (b) was supported with sufficient information or documentation to enable the director to fully consider the substance and significance of the issue 20
  • 21. The Record Review Bill  Preservation exception: issue was not “reasonably ascertainable before or during the public comment period”  Preservation – Quality of Comments/Supporting Documentation – Statute does not address what is required to support a comment with “sufficient information” – Department will likely address this issue by rule 21
  • 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. 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 allowing parties to “present evidence”) 23
  • 24. The Record Review Bill  Method of review is significantly different – ALJ conducts a permit review proceeding “based only on the administrative record and not as trial de novo” – Executive director will also review the ALJ’s recommended decision based on the administrative record 24
  • 25. The Record Review Bill  What is the Record? – Information that was before the agency, and informed the agency’s decision, including: • the permit application, draft permit, and final permit • each statement of basis, fact sheet, engineering review, or other substantive explanation designated by the director as part 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 oral comments made during the public hearing • written comments submitted during the public comment period 25
  • 26. The Record Review Bill  What is the “Record” continued • responses to comments that are designated by the director as part of the basis for the decision relating 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 the decision relating to the permit order • any additional information specified by rule • any information agreed to by the parties • information allowed through supplementation 26
  • 27. The Record Review Bill  The Record Can be Supplemented with: – “technical or factual information” – May include testimonial evidence 27
  • 28. The Record Review Bill  Test for supplementation – The party attempting to add new information must prove • Good cause exists to supplement • Supplementation is in the interest of justice • Supplementation is necessary for resolution of the issues 28
  • 29. The Record Review Bill  The standard governing the ALJ’s and Executive Director’s review is unchanged – The Division Director’s decision on the contested issue shall be affirmed if • “factual, technical, and scientific agency determinations are supported by substantial evidence taken from the record as a whole” 29
  • 30. The Record Review Bill  Most procedures are unchanged – Challenge to permitting decision – must be filed (and received by agency) within 30 days of issuance by the agency – Stays – not automatic; a party must petition for a stay – Permittee is an automatic party 30
  • 31. Practical Issues  Application to Permits in the Pipeline? – Good argument that all permits in process as of effective date, May 8, 2012, should come under the new laws – However, UDEQ has taken position that new laws, in particular the Record Review bill, will only apply if permit was open for public comment after effective date 31
  • 32. Practical Issues  Communicating with the agency – Statutes do not prohibit pre-adjudication communications – However, once an adjudication commences • ALJ – no ex parte communications • Executive Director (Amanda Smith) – No ex parte communications » “The executive director may not participate in an ex parte communication with a party to the permit review adjudicative proceeding regarding the merits of the permit review adjudicative proceeding” 32
  • 33. Responding to Adverse Comments  Agency must respond directly and with explanation; work with agency as much as it will let you  Consider submitting your own comments – If concerned agency will not adequately address issues, but agency must respond to yours as well – Agency may not like getting comments from applicant 33
  • 34. Practical Issues  Responding to 11th-Hour Comments – The rules generally do not give an applicant the express ability to respond to comments after the close of the comment period • This may be addressed in rulemaking – Consider whether agency can extend comment period – Safety Valves • Ask agency to ask you for the information • Move to supplement record in appeal proceeding 34
  • 35. Mistakes to Avoid  Not consulting legal counsel, particularly on complex or controversial permits  Assuming agency knows the law  Not considering EPA over-filing potential  Unsupported agency assertions – Agency has to state reasons, blanket assertions are not enough – Agency told us to do it that way, standing alone, is not a defense 35
  • 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 to comments, agency must consider if it must be sent back out to public comment  Adverse terms in your draft permit – You most likely must file comments in opposition if you want to challenge those terms 36