Utah Law Developments
| Jurisdiction | Utah,United States |
| Citation | Vol. 26 No. 3 Pg. 18 |
| Pages | 18 |
| Publication year | 2013 |
May/June 2013
ON THE RECORD REVIEW: EFFICIENCY FOR ENVIRONMENTAL PERMIT APPEALS IN UTAH AND OTHER RECENT DEVELOPMENTS AT THE UTAH DEPARTMENT OF ENVIRONMENTAL QUALITY
James A. Holtkamp, Steven J. Christiansen, Megan J. Houdeshel.
In the last ten years, the Utah Department of Environmental Quality (DEQ) has seen an increase in the number of challenges to environmental permits issued by the six divisions of the DEQ. Historically, under Utah Code section 19-1-301, each permit challenge required a trial-type proceeding before either one of the DEQ boards or a hearing officer appointed by such board. See Utah Code Ann. § 19-1-301 (LexisNexis Supp. 2012). These proceedings were often held up for years with motion practice and evidence gathering before the formal hearing was even scheduled.[1] Once a hearing was held before the hearing officer, the recommended decision was presented to the applicable division board for review. See id. § 19-1-301(6)(a)–(b). The boards were generally made up of more than ten people, many of whom were not lawyers, and were not familiar with the rules governing formal administrative hearings and review of a hearing officer or an Administrative Law Judge (ALJ) decision.
Moreover, the boards were caught between rulemaking functions and adjudicative functions creating potential conflicts of interest. In particular, it was often difficult for board members to shift from a role in which all public input was welcomed to that of an adjudicator who was supposed to avoid ex parte communications. All of this resulted in an inefficient process and inconsistent results.
In an effort to streamline the adjudicative process for permit appeals, create some decision-making consistency within DEQ, and eliminate the boards’ multifunction conflict of interest, two bills were proposed in the 2012 legislative session: Senate Bill 21 (DEQ Boards Revision Bill) (SB 21) and Senate Bill 11 (DEQ Adjudicative Proceedings) (SB 11). To facilitate collaboration in drafting these bills, the Executive Director of DEQ, Amanda Smith, coordinated a Kaizen process in the fall of 2011 involving a diverse group of business, government, legal, and nongovernment/ citizen stakeholders. All of the Kaizen process participants were devoted to improving DEQ’s boards, procedures, and legal structure.
Both bills passed in the 2012 session of the Utah State Legislature with wide margins of bipartisan support. SB 11 passed the Utah Senate on January 25, 2012, with a favorable vote of 21-4 (4 abstentions) and passed the Utah House of Representatives on February 1, 2012, with a unanimous vote of 73-0 (2 abstentions). The Governor signed the bill on March 22, 2012. SB 21 also passed the Utah Senate with a favorable vote on February 6, 2012, with a vote of 23-6 (0 abstentions) and passed the Utah House of Representatives on February 22, 2012, with a vote of 47-18 (10 abstentions). The Governor signed SB 21 into law on March 23, 2012.
The following is a brief history of the origins of both bills and an explanation of how the new procedures will generate better decisions and improve the efficiency of DEQ. As DEQ’s budget has decreased in recent years, the agency has been required to do more with less. These bills provide the framework to achieve that goal.
History and Purpose of SB-11
SB-11 authorizes on-the-record adjudicative review of DEQ environmental permit decisions by an ALJ utilizing an appellate-type procedural format rather than the formal trial-type evidentiary hearing mandated by the Utah Administrative Procedures Act (UAPA). See Utah Code Ann. § 63G-4-206 (LexisNexis 2011). Nevertheless, UAPA hearing procedures continue to apply to DEQ proceedings that do not involve the issuance or denial of environmental permits such as, for example, civil enforcement proceedings.
The intent behind SB-11 is to adopt an administrative review procedure that is similar to that currently utilized by the U.S. Environmental Protection Agency’s (EPA) Environmental Appeals Board (EAB). The procedure for review of federal environmental permits is codified at 40 CFR Part 124. The Part 124 procedures apply to virtually all EPA environmental permit decisions at the Federal level. Rather than a trial-type evidentiary hearing for permit challenges, the Federal system employs an on-the-record...
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