Sevier Citizens for Clean Air & Water, Inc. v. Department of Environmental Quality ( 2014 )


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    2014 UT App 257
    _________________________________________________________
    THE UTAH COURT OF APPEALS
    SEVIER CITIZENS FOR CLEAN AIR AND WATER, INC.,
    Petitioner,
    v.
    DEPARTMENT OF ENVIRONMENTAL QUALITY AND
    SEVIER POWER COMPANY,
    Respondents.
    Opinion
    No. 20130547-CA
    Filed October 30, 2014
    Original Proceeding in this Court
    Marcus Taylor, Attorney for Petitioner
    Sean D. Reyes, Christian C. Stephens, and
    Craig W. Anderson, Attorneys for Respondent
    Department of Environmental Quality
    Brian W. Burnett, James D. Gilson, and
    Benjamin P. Harmon, Attorneys for Respondent
    Sevier Power Company
    JUDGE STEPHEN L. ROTH authored this Opinion, in which JUDGE
    GREGORY K. ORME and SENIOR JUDGE JUDITH M. BILLINGS
    concurred.1
    1. The Honorable Judith M. Billings, Senior Judge, sat by special
    assignment as authorized by law. See generally Utah R. Jud.
    Admin. 11-201(6).
    Sevier Citizens for Clean Air and Water, Inc. v. Department of
    Environmental Quality
    ROTH, Judge:
    ¶1     The Utah Department of Environmental Quality (the
    Department) dismissed the request for agency action filed by
    Sevier Citizens for Clean Air and Water, Inc. (Sevier Citizens) on
    the basis that Sevier Citizens had failed to file a petition to
    intervene in the permit review adjudicative proceedings
    between the Department and Sevier Power Company (Sevier
    Power). On petition for judicial review, Sevier Citizens
    acknowledges that it did not file a separate intervention petition
    but argues that its request for agency action met the
    requirements for a petition to intervene. We decline to disturb
    the Department’s decision.
    BACKGROUND
    ¶2     In spring 2012, the Utah Division of Air Quality (the
    Division) issued a notice of intent to grant a permit for Sevier
    Power to operate a gas-fired power plant in Sevier County, Utah.
    Sevier Citizens was not a party to those proceedings. A
    mandatory public comment period followed, during which
    Sevier Citizens filed twenty-one pages of comments raising
    concerns about the effects of the plant’s operations should the
    permit be granted. On October 25, 2012, the Division issued an
    order approving the permit, and on November 21, 2012, Sevier
    Citizens filed a request for agency action asking that the
    Department reconsider that decision. The request read,
    Under and pursuant to the provisions of U.C.A.
    § 19-1-301.5 and U.C.A. § 63G-4-201(3), Sevier
    Citizens for Clean Air and Water, Inc., hereby
    requests agency action to review the Approval
    Order . . . . This request is submitted over my
    signature as counsel for Sevier Citizens.
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    Sevier Citizens for Clean Air and Water, Inc. v. Department of
    Environmental Quality
    The relief sought by Sevier Citizens is simple
    reversal of the approval order. The order should be
    withdrawn and abrogated in its entirety. The
    factual and legal points and arguments supporting
    this request were properly raised during the public
    comment period. They are repeated in this request
    in Exhibit A, attached hereto and incorporated
    herein.
    Sevier Power Company has been copied with this
    request and the attachment as indicated below.
    Sevier Citizens attached, as Exhibit A to its request, the twenty-
    one pages of comments the organization had submitted during
    the comment period. Sevier Citizens did not file a separate
    petition to intervene in the permit review adjudicative
    proceedings, nor did its request for agency action include an
    explicit request to intervene in the agency proceedings.
    ¶3     The Department appointed an administrative law judge
    (the ALJ) to consider Sevier Citizens’ request. The ALJ
    recommended dismissing the request on the basis that Sevier
    Citizens had not filed a petition to intervene in the litigation as
    required by Utah Code section 19-1-301.5. See 
    Utah Code Ann. § 19-1-301.5
    (7) (LexisNexis 2013)2 (explaining that to participate
    in a permit review adjudicative proceeding, a nonparty must file
    a request for agency action and a petition to intervene, and
    setting forth the process for doing so). Sevier Citizens objected to
    the recommended order, asserting that the request for agency
    action was, in substance, also a petition to intervene. After
    reviewing the recommended decision and the objection, the
    2. Because section 19-1-301.5 has not been amended since it was
    adopted in May 2012, we cite the current version of the Utah
    Code for the reader’s convenience.
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    Sevier Citizens for Clean Air and Water, Inc. v. Department of
    Environmental Quality
    Department adopted the ALJ’s recommendation and dismissed
    the request for agency action. In its order, the Department found
    that Sevier Citizens had ‚failed to file a petition to
    intervene[ and had] failed to satisfy the substantive
    requirements for intervention.‛
    ISSUE AND STANDARD OF REVIEW
    ¶4     Sevier Citizens seeks judicial review of the Department’s
    dismissal order on the basis that its request for agency action
    met the requirements for a petition to intervene. An appellate
    court may grant relief from a formal agency adjudicative
    proceeding only if the ‚person seeking judicial review has been
    substantially prejudiced.‛ Utah Code Ann. § 63G-4-403(4)
    (LexisNexis 2011). A petitioner may be substantially prejudiced
    if the agency ‚erroneously interpret[s] or applie[s+‛ the
    applicable law. Id. § 63G-4-403(4)(d). The term ‚‘erroneous[ly],’‛
    however, ‚does not imply a standard of review‛; it merely
    ‚indicat*es+ that we may grant relief when an agency
    misinterpreted or misapplied the law.‛ Murray v. Labor Comm’n,
    
    2013 UT 38
    , ¶ 21, 
    308 P.3d 461
    .
    ¶5     The legislature has afforded the Department ‚substantial
    discretion to interpret its governing statutes and rules.‛ 
    Utah Code Ann. § 19-1-301.5
    (14)(c) (LexisNexis 2013). However, ‚this
    grant of authority does not turn an agency’s application or
    interpretation of the law into the type of action that would
    warrant an ‘abuse of discretion’ standard.‛ Murray, 
    2013 UT 38
    ,
    ¶ 28. Rather, we ‚apply our traditional approach in selecting the
    appropriate standard of review,‛ id. ¶ 23, based on whether the
    Department’s decision ‚qualifies as a finding of fact, a
    conclusion of law, or a determination of a mixed question of law
    and fact,‛ id. ¶ 24 (citation and internal quotation marks
    omitted).
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    Sevier Citizens for Clean Air and Water, Inc. v. Department of
    Environmental Quality
    ¶6     The issue of whether Sevier Citizens’ request for agency
    action contains the information required by statute for a petition
    to intervene presents a mixed question involving the application
    of law to fact. See 
    id.
     Thus, we determine how much deference to
    afford the Department’s decision by assessing whether the
    determination is more fact-like or law-like. See 
    id.
     ¶¶ 35–40. We
    conclude that under the circumstances of this case, the
    Department’s determination that the request for agency action
    did not meet the statutory requirements for a motion to
    intervene is more law-like because it involves statutory
    interpretation and application of that interpretation to
    undisputed facts—the actual contents of the submission rather
    than its objective truth. See A & B Mech. Contractors v. Labor
    Comm’n, 
    2013 UT App 230
    , ¶ 15, 
    311 P.3d 528
     (‚The
    interpretation of a statute is a question of law . . . .‛ (citation and
    internal quotation marks omitted)). We therefore review the
    Department’s decision for correctness.
    ANALYSIS
    ¶7     Utah Code section 19-1-301.5 allows either a party or a
    person seeking to intervene to request that an agency review a
    decision to issue a permit. 
    Utah Code Ann. § 19-1-301.5
    (6)(a).
    Subsection (7)(b) provides,
    A person who seeks to intervene in a permit
    review adjudicative proceeding . . . shall, within 30
    days after the day on which the permit order being
    challenged was issued, file:
    (i) a petition to intervene that:
    (A) meets the requirements of Subsection
    63G-4-207(1); and
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    Sevier Citizens for Clean Air and Water, Inc. v. Department of
    Environmental Quality
    (B) demonstrates that the person is entitled
    to intervention under Subsection
    (7)(c)(ii); and
    (ii) a timely request for agency action.
    
    Id.
     § 19-1-301.5(7)(b) (emphasis added). The referenced
    subsection (7)(c)(ii) requires the petitioner to show that it is
    entitled to intervene by:
    (A) demonstrat*ing+ that the petitioner’s legal
    interests may be substantially affected by the
    permit review adjudicative proceeding;
    (B) demonstrat[ing] that the interests of justice and
    the orderly and prompt conduct of the permit
    review adjudicative proceeding will not be
    materially impaired by allowing the intervention;
    and
    (C) in the petitioner’s request for agency action,
    rais[ing] issues or arguments that are preserved
    ....
    Id. § 19-1-301.5(7)(c)(ii).3 If the petition to intervene is timely filed
    and the petition to intervene and request for agency action
    3. Section 19-1-301.5 also states that the petition to intervene
    must comply with section 63G-4-207(1) of the Utah
    Administrative Procedures Act. 
    Utah Code Ann. § 19-1
    -
    301.5(7)(b)(i)(A) (LexisNexis 2013). Section 63G-4-207(1) requires
    that a petition to intervene contain (a) ‚the agency’s file
    number,‛ (b) ‚the name of the proceeding,‛ (c) ‚a statement of
    facts demonstrating the petitioner’s legal rights or interests are
    substantially affected by the formal adjudicative proceeding, or
    (continued...)
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    Sevier Citizens for Clean Air and Water, Inc. v. Department of
    Environmental Quality
    otherwise comply with the requirements of section 19-1-301.5,
    ‚*a+n administrative law judge shall grant a petition to intervene
    in a permit review adjudicative proceeding.‛ 
    Id.
     § 19-1-
    301.5(7)(c).
    ¶8      Sevier Citizens asserts that its request for agency action in
    effect included a petition to intervene because it contained all of
    the substantive information required of both filings. The
    Department and Sevier Power concede that a request for agency
    action and petition to intervene may be combined into one
    pleading. They dispute, however, Sevier Citizens’ contention
    that its request included the substantive components of a
    petition for intervention. In particular, they contend that the
    request for agency action neither ‚demonstrates that *Sevier
    Citizens’+ legal interests may be substantially affected by the
    permit review adjudicative proceeding,‛ see id. § 19-1-
    301.5(7)(c)(ii)(A), nor shows that ‚the interests of justice and the
    orderly and prompt conduct of the permit review adjudicative
    proceeding will not be materially impaired by allowing the
    that the petitioner qualifies as an intervenor under any provision
    of law,‛ and (d) ‚a statement of the relief‛ sought. Id. § 63G-4-
    207(1) (LexisNexis 2011). The only component of section 63G-4-
    207(1) that the Department and Sevier Power claim Sevier
    Citizens failed to satisfy is subsection (1)(c). Because the first
    clause of subsection (1)(c) is substantially similar to section 19-1-
    301.5’s requirement that the petitioner ‚demonstrate*+ that the
    petitioner’s legal interests may be substantially affected by the
    permit     review     adjudicative     proceeding,‛     id.   § 19-1-
    301.5(7)(c)(ii)(A) (LexisNexis 2013), we do not separately address
    Sevier Citizens’ compliance with this provision of section 63G-4-
    207(1)(c). Moreover, Sevier Citizens has not demonstrated that it
    ‚qualifies as an intervenor under any *other+ provision of law.‛
    Id. § 63G-4-207(1)(c) (LexisNexis 2011).
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    Sevier Citizens for Clean Air and Water, Inc. v. Department of
    Environmental Quality
    intervention,‛ 
    id.
     § 19-1-301.5(7)(c)(ii)(B). Cf. Butler v. Corporation
    of the President of the Church of Jesus Christ of Latter-day Saints,
    
    2014 UT 41
    , ¶¶ 22, 31 (explaining that although a decision
    disposing of less than all the claims or parties is typically made
    final and appealable through two separate orders, ‚a district
    court may enter a single order that satisfies both rule 7(f)(2) and
    rule 54(b)‛ of the Utah Rules of Civil Procedure, provided the
    order ‚strictly and expressly compl[ies] with the requirements of
    both rules‛). Sevier Citizens argues that it demonstrated that its
    ‚legal interests may be substantially affected by the permit
    review adjudicative proceeding,‛ see 
    Utah Code Ann. § 19-1
    -
    301.5(7)(c)(ii)(A), by attaching to its request for agency action the
    twenty-one pages of comments it submitted during the public
    comment period following the Division’s notice of intent to
    grant Sevier Power’s permit.
    ¶9     After reviewing the twenty-one pages of comments, we
    have located only one portion that makes any statements that
    might conceivably be characterized as ‚demonstrat*ing+ that
    *Sevier Citizens’+ legal interests may be substantially affected by
    the permit review adjudicative proceeding.‛ See 
    id.
     Interspersed
    within two-and-a-half pages of the twenty-one-page document
    are some statements by Dick Cumiskey, President of Sevier
    Citizens, in which he expresses concern that ‚increased pollution
    that may be injected into the airshed by the proposed power
    plant‛ will eliminate the ‚relatively pristine air‛ and ‚pristine
    vistas‛ that Sevier Valley citizens ‚still enjoy‛ and that make the
    county ‚a destination of people seeking clean air, clean water,
    and beautiful vistas.‛ Cumiskey does not identify any of these
    citizens as members of his organization. And in only one
    sentence does he allude to a personal interest in the matter,
    when he explains that it was because of this pristine air that he
    ‚moved from San Diego‛ and that ‚a large percentage of . . .
    retirees‛ in the county had ‚moved here.‛
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    Sevier Citizens for Clean Air and Water, Inc. v. Department of
    Environmental Quality
    ¶10 Whether Cumiskey’s personal concern about the loss of
    pristine air is a legitimate legal interest that would entitle Sevier
    Citizens to intervene is not apparent, and Sevier Citizens neither
    addresses the issue nor references Cumiskey’s comments in its
    briefing. The term ‚legal interests‛ is not defined in the statutes
    governing permit review adjudicative procedures or in Utah’s
    Administrative Procedures Act generally. Although the Utah
    Supreme Court has stated that harm to a legal interest involves
    more than mere ‚*e+xpression*+ of concern‛ and instead must
    amount to ‚a sufficiently particularized injury‛ to ‚livelihood,
    health, and property values,‛ the court expressly declined to
    ‚determine whether . . . concerns about decreased visibility,
    considered alone, would qualify as a sufficient adverse impact‛
    to give a non-party standing to intervene, Utah Chapter of the
    Sierra Club v. Utah Air Quality Bd., 
    2006 UT 74
    , ¶¶ 26–27, 
    148 P.3d 960
    .
    ¶11 Again, Sevier Citizens makes no attempt to address the
    concept of ‚legal interests‛ as it might apply to airshed issues in
    light of the question raised by Sierra Club. And to the extent the
    remainder of the twenty-one pages of comments asserts that the
    power plant’s operation may affect the kind of legal interests
    that have been recognized by our appellate courts as significant
    enough to allow intervention, the comments speak only in terms
    of the impact on the community at large, as opposed to specific
    members of Sevier Citizens. Indeed, they allude only generally
    to the need to evaluate—before the approval process reaches a
    point of ‚no going back‛—the health impacts, as well as the
    effects on tourism and agriculture, of the operation of the Sevier
    Power plant without tying those effects to any particular
    potential harm to members of the Sevier Citizens organization.
    Therefore, the comments included in the attachment fail to
    identify a specific impact that the power plant’s operation is
    likely to have on any member’s recognized legal interests, such
    as a negative impact on livelihood or property values or
    diminution in a particular member’s health or recreational
    20130547-CA                       9                
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    Sevier Citizens for Clean Air and Water, Inc. v. Department of
    Environmental Quality
    enjoyment. For example, Sevier Citizens alleges that ‚*t+here are
    already an above average number of residents with heart and
    breathing disorders and a large number of people on oxygen‛
    and that Sevier Citizens imagines the problem ‚will only get
    worse‛ if the Sevier Power permit were to issue, without relating
    these conditions to any member of the group. There is no
    information in the attachment that indicates whether the
    residents with medical conditions likely to be aggravated by the
    operation of the Sevier Power plant are also members of Sevier
    Citizens. Cf. id. ¶ 26 (noting that the allegations of harm to
    ‚livelihood, health, and property values‛ must show a
    particularized impact on legal interests of the petitioner to
    warrant intervention in an administrative proceeding).
    ¶12 In addition, the twenty-one pages of comments do not
    ‚demonstrate[] that the interests of justice and the orderly and
    prompt conduct of the permit review adjudicative proceeding
    will not be materially impaired by allowing the intervention.‛
    See 
    Utah Code Ann. § 19-1-301.5
    (7)(c)(ii)(B) (LexisNexis 2013).
    Indeed, the document does not address the impact of allowing
    intervention at all.
    ¶13 Finally, even if the comments contained enough substance
    to establish the criteria required for intervention, we do not
    believe that the Department erred in rejecting Sevier Citizens’
    request for agency action as a petition for intervention. The
    format in which a possible showing of entitlement to intervene is
    presented—tangential statements interspersed among twenty-
    one pages of general comments—unreasonably burdens the
    Department with the task of creatively reading the whole
    attached exhibit so as to pull together all the possibly pertinent
    snippets of commentary and then wringing out any inferences
    favorable to intervenor status.
    ¶14 While we are unwilling to conclude at this point that a
    petition for review of agency action must always directly
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    Sevier Citizens for Clean Air and Water, Inc. v. Department of
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    address the statutory requirements in order to show entitlement
    to intervention, we conclude that in this instance the Department
    did not err in determining that Sevier Citizens’ request for
    agency action did not amount to a petition to intervene as
    defined by section 19-1-301.5.
    CONCLUSION
    ¶15 We decline to disturb the Department’s decision that
    Sevier Citizens failed to file a petition to intervene in a permit
    review adjudicative proceeding between the Department and
    Sevier Power. Although Sevier Citizens could have filed a
    petition to intervene as part of its request for agency action, the
    request for agency action that it filed did not adequately
    demonstrate the criteria required to entitle the organization to
    intervene in the agency process.
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