Utah Physicians for a Healthy Env't v. Exec. Dir. of the Utah Dep't of Envtl. Quality

• Decision Date: 26 October 2016
• Docket Number: No. 20141132,20141132
• Court: Utah Supreme Court
• Parties: UTAH PHYSICIANS FOR A HEALTHY ENVIRONMENT and Utah Chapter of the Sierra Club, Petitioners, v. EXECUTIVE DIRECTOR OF THE UTAH DEPARTMENT OF ENVIRONMENTAL QUALITY and the Director of the Utah Division of Air Quality, in their official capacity, the Utah Department of Environmental Quality, the Utah Division of Air Quality, and Tesoro Refining & Marketing Co., LLC, Respondents.

391 P.3d 148

UTAH PHYSICIANS FOR A HEALTHY ENVIRONMENT and Utah Chapter of the Sierra Club, Petitioners,

v.EXECUTIVE DIRECTOR OF THE UTAH DEPARTMENT OF ENVIRONMENTAL QUALITY and the Director of the Utah Division of Air Quality, in their official capacity, the Utah Department of Environmental Quality, the Utah Division of Air Quality, and Tesoro Refining & Marketing Co., LLC, Respondents.

No. 20141132

Supreme Court of Utah.

Filed October 26, 2016

Joro Walker, Charles R. Dubuc, Jr., Salt Lake City, for petitioners Utah Physicians for a Healthy Environment and Utah Chapter of the Sierra Club.

Sean D. Reyes, Att'y Gen., Christian C. Stephens, Craig W. Anderson, Marina V. Thomas, Asst. Att'ys Gen., Salt Lake City, for respondents Utah Department of Environmental Quality and Utah Division of Air Quality.

Michael A. Zody, Michael J. Tomko, Jacob A. Santini, Salt Lake City, for respondent Tesoro Refining & Marketing Co., LLC.

Justice Himonas authored the opinion of the Court, in which Chief Justice Durrant and Associate Chief Justice Lee joined.

On Appeal from Final Action of Administrative Agency

Justice Himonas, opinion of the Court:

INTRODUCTION

¶ 1 This case concerns the decision of the Executive Director of the Utah Department of Environmental Quality (UDEQ) to dismiss a Request for Agency Action filed by Utah Physicians for a Healthy Environment and the Utah Chapter of the Sierra Club, the Petitioners in this action. In their Request for Agency Action, the Petitioners challenged a permit allowing certain changes at Tesoro Refining and Marketing Company's Salt Lake City Refinery that was approved by the Director of the Utah Division of Air Quality (UDAQ).¹ The Petitioners believe that the Director of UDAQ conducted a legally insufficient analysis when he approved Tesoro's changes at the refinery, and they therefore initiated a permit review adjudicative proceeding. As required by Utah Code section 19–1–301.5(5), the Executive Director appointed an Administrative Law Judge (ALJ) to conduct the permit review adjudicative proceedings. Upon completion of the proceedings, which took place over a nearly two-year period, the ALJ recommended that the Petitioners' challenge be dismissed. The Executive Director adopted the ALJ's findings of fact, conclusions of law, and proposed disposition and issued a final order dismissing each of the Petitioners' arguments. The Petitioners appeal from the Executive Director's final order.

¶ 2 We dismiss the Petitioners' appeal. Our appellate jurisdiction is restricted by statute to a review of the Executive Director's final order. Yet the Petitioners altogether failed to address their opening brief and arguments to the final order, opting instead to attack only the sufficiency of the actions of the Director of UDAQ. We would be forsaking our judicial role if we were to seek out errors in the final order on behalf of the Petitioners and to the detriment of the Respondents, which is in essence what the Petitioners are asking us to do. Thus, while the Petitioners' substantive arguments may have merit, an issue on which we offer no opinion, we are in no position to ferret out the truth because the Petitioners have failed to meet their burden of persuasion on appeal.

¶ 3 The dissent would have us overlook the Petitioners' briefing failure by "step[ping] into the shoes of [the Executive Director] and review[ing] the fact-finder's decisions ourselves." The dissent also suggests that the Petitioners have "briefed at least one potentially meritorious claim that UDAQ erred." There are significant problems with the dissent's views. First, although we often look at the fact-finder's decision to determine whether the intermediate appellate body erred, our jurisdiction is statutorily bound to a review of the Executive Director's decision, which the Petitioners failed to address. The failure to address the Executive Director's decision constitutes inadequate briefing. Second, the Petitioners have failed to show that one of their claims—namely, that UDAQ's "best available control technology" analysis was legally inadequate—is a purely legal one, in part because they do not address the Executive Director's findings of fact and conclusions of law on the issue.

BACKGROUND

¶ 4 In 2011, Tesoro filed a Notice of Intent (NOI) with UDAQ, requesting permission to modify the "Waxy Crude Processing Project" at Tesoro's Salt Lake City Refinery. As part of this project, Tesoro wished to make changes to several pieces of equipment at the refinery. The equipment in question expels pollutants that are subject to state emissions regulations. In the NOI, Tesoro specified the expected increases in emissions from the refinery attributable to the project and explained the process used to calculate those increased emissions.

¶ 5 Tesoro stated that the increase in emissions for all pollutants but sulfur dioxide (SO2) fell below the emission thresholds that trigger the more rigorous New Source Review program standards. Therefore, the majority of the project would be subject only to UDAQ's minor source permitting program. For SO2, Tesoro had to undertake an analysis to determine whether the total net emissions of SO2 would be greater than the allowable Prevention of Significant Deterioration emission rate and thus trigger the stricter New Source Review program standards. In the NOI, Tesoro indicated that it would install a piece of equipment at its refinery to reduce SO2 emissions. Because of that reduction, Tesoro determined that the net emissions of SO2 would be low enough not to trigger the New Source Review standards. As a result, all the changes to the refinery would be subject only to UDAQ's minor source permitting program rather than to the stricter New Source Review program.

¶ 6 Tesoro also had to determine whether its pollution control technology for the refinery's emissions was at least the best available control technology (BACT).² For its BACT determination, Tesoro used a BACT analysis from 2007 that UDAQ had approved for the refinery. Tesoro determined that the technology at the refinery conformed to BACT requirements. It also concluded that its project was not subject to the Environmental Protection Agency's new regulations under Subpart Ja of the New Source Performance Standards.

¶ 7 UDAQ reviewed Tesoro's NOI and issued a Source Plan Review and an Intent to Approve for the project. As required by statute, UDAQ released the NOI, Source Plan Review, and Intent to Approve for a public comment period. The Petitioners filed comments during this period, expressing concern about the legal sufficiency of Tesoro's and UDAQ's analyses regarding the project. After reviewing the comments, UDAQ requested that Tesoro provide additional information, including more BACT analysis. Tesoro complied with this request by filing supplemental information responding to UDAQ's concerns on July 25, 2012. After reviewing all the materials, UDAQ approved Tesoro's project on September 13, 2012. Subsequently, on October 15, 2012, the Petitioners filed a Request for Agency Action to initiate a permit review adjudicative proceeding for the Tesoro project.³

¶ 8 On February 15, 2013, the Executive Director appointed an ALJ to preside over the permit review adjudicative proceeding and to issue a recommendation about what, if any, action should be taken by the Executive Director regarding the permit. The ALJ gave the Petitioners additional time and permission to supplement the record because Tesoro's July 25, 2012 supplement was filed after the public comment period had closed. The Petitioners elected not to supplement the record. In addition to the briefing for the permit review adjudicative proceedings, the parties filed a number of written motions and responses relating to the proceedings, totaling hundreds of pages. After the parties briefed the case, the ALJ heard oral argument for several hours on February 26, 2014.

¶ 9 Once the permit review adjudicative proceedings concluded, the ALJ issued a proposed dispositive action on September 9, 2014. In that proposed dispositive action, the ALJ wrote extensively regarding the Petitioners' failure to preserve arguments and to marshal the evidence.⁴ He also wrote about the Petitioners' failure to meet their burden of persuasion on the merits. The ALJ held that seven of the Petitioners' arguments in the Request for Agency Action were waived or otherwise failed on the merits because of the Petitioners' failure to address them in the briefing. The ALJ also found that the Petitioners "failed to carry their burden to overcome UDAQ's BACT determination." The Petitioners had the burden to identify an available control technology that UDAQ did not consider in its BACT analysis or to identify a specific emission limitation associated with any control technology, but the ALJ determined that the Petitioners failed to do either. The Petitioners argued that the ALJ should infer that UDAQ's BACT analysis was insufficient because it maintained the status quo of emissions at the refinery, but the ALJ found that the argument was not tied to the specific facts of the case. Instead, the Petitioners relied on a single footnote in their brief consisting of a string of record citations, which the ALJ concluded was wholly insufficient to meet their burden. The ALJ also found that "UDAQ in fact reviewed Tesoro's July 25, 2012 letter" and that it adopted Tesoro's BACT analysis. The reasonable inference from this fact, according to the ALJ, was that "UDAQ was satisfied with Tesoro's BACT analysis" that included the July 25 supplement.

¶ 10 The ALJ further concluded that the Petitioners failed to meet their burden to marshal the evidence. Based on this finding, the ALJ recommended that eleven of their remaining sixteen arguments be dismissed. For three of the remaining five arguments, the ALJ concluded that the Petitioners had failed to adequately preserve their arguments. Despite the Petitioners' failure to preserve their arguments or...