SB 11 and the Re-Balkanization of State Agency Administrative Procedures
by Alvin Robert Thorup
Apparently because some powerful people were unhappy with one or more decisions of the Utah Department of Environmental Quality (DEQ) and its citizen decision-making boards, likely involving hazardous waste storage, the 2012 Utah Legislature made sweeping changes in how environmental permit matters will be decided in two bills. Senate Bill 21 shrunk and revamped the boards and the substantive rules on permit matters, while Senate Bill 11 provided new administrative procedures to be followed by the DEQ in granting or denying environmental permits. Prior to S.B. 11, the DEQ, like all other state agencies, was subject to the Utah Administrative Procedures Act (UAPA). See Utah Code Ann. §§ 63G-4-101 to -401 (2011). I believe the Utah Legislature made a mistake by creating special administrative procedures for the DEQ. Instead, UAPA should continue to govern the DEQ.
First, some background
If someone looked at the Utah Code in 1981, the provisions dealing with agency administrative procedures were obviously in disarray. Between 1945 and 1981, each time a new state agency was created or a new power was given to a state agency, new and separate administrative procedures were provided for each agency. As noted in Utah’s Administrative Procedures Act:
A 20-Year Perspective:
By 1981, the Utah Code was a “crazy quilt” of varying agency procedures and varying avenues for judicial review of agency actions. Citizens were practically required to use expensive specialist lawyers with continuing experience in a particular agency in order to navigate the shoals of that particular agency’s proceedings. Even skillful trial lawyers were often stymied by the Byzantine and Balkanized structure of agency hearings and appeals in Utah. Appellate court decisions, moreover, were of limited value because the interpretation of one agency’s procedural statutes might not apply to any other agency.
Alvin R. Thorup & Stephen G. Wood, Utah’s Administrative Procedures Act: A 20-Year Perspective 22 n.19 (2009).
To correct this situation, a blue ribbon and bipartisan committee was appointed by Governor Matheson and Attorney General Wilkinson in 1982 to look at providing uniform administrative procedures for Utah state agencies. The result of this effort was the UAPA, adopted nearly unanimously by the 1987 Utah Legislature. As part of UAPA, substantially all separate agency administrative procedures, then existing outside of UAPA in the Utah Code, were repealed, and substantially every state agency, including the DEQ, was required to follow the UAPA when conducting adjudicative proceedings, like deciding whether to grant or deny a requested environmental permit. UAPA enabled ordinary citizens and their lawyers and other advisors to move from agency to agency as their business or personal needs directed them, knowing that the same procedures applied throughout state government. UAPA also allowed a reduction in the workload of the Courts given that a decision on the procedures followed in one agency would now be applicable to all agencies. See id. at 22-40.
So why was S.B. 11 proposed and adopted, and why was it a mistake?
As explained by one of the supporters of S.B. 11, Steven J. Christiansen of the Parr Brown Gee & Loveless law firm, at a recent meeting of the Administrative Law Section of the Bar (materials in the possession of the author) the sponsors’ thought progression went like this:
1. The federal Environmental Protection Agency was told by the courts in the early 1970s that its administrative proceedings granting or denying permits needed to use the adjudicative hearings provided by the federal Administrative Procedure Act.
2. “Similarly, in Utah the UAPA generally prescribes that the administrative hearing conducted by state agencies be conducted as ‘formal’ adjudicatory hearings unless designated as informal by rule.…”
3. Environmental permit cases got complex and costly in the course of the hearings held at the federal and state levels.
4. The EPA concluded recently that the 1970s cases were bad law and has now decided to only have an APA hearing if someone is aggrieved by an EPA permit decision process.
5. Utah has been experiencing complex environmental permit cases at DEQ that take a lot of time and money to resolve.
6. S.B. 11 “resolves this problem by mandating the use of EPA-like appellate-type procedures in lieu of the UAPA formal adjudicatory procedures.”
The premises for S.B. 11, particularly items two and six, are flawed. Under UAPA, agency action can be initiated by the agency, i.e. an intention by DEQ to revoke an existing environmental permit; and also can be initiated by a citizen, i.e. an application for an environmental permit. See Utah Code Ann. § 63G-4-201 (2011). Specifically, if a citizen requests agency action, the agency will, promptly review [the request] and shall (i) notify the requesting party…that the request is granted; or (ii) notify the requesting party…that the request is denied and, if the proceeding is a formal adjudicative proceeding, that the party may request a hearing….; or (iii) notify the requesting party that further proceedings are required to determine the agency’s response to the request.
Id. § 63G-4-201(3)(d).
Importantly, UAPA does not require that a hearing take place prior to the DEQ at least initially deciding what it wants to do on an application, and UAPA does not prescribe how long the DEQ needs to take nor the processes it will follow to decide, at least preliminarily, whether to grant or deny the requested action, nor did it prescribe the “further proceedings” that the DEQ might go through before any hearing in order to reach a decision on the requested action. If the decision was to deny the application, then a hearing could be requested to challenge that decision. Hence the basic selling point of S.B. 11, that hearings need only take place after the agency first decides, is moot given that same ability under the existing UAPA.
It has been my experience over the past twenty-five years that agencies and lawyers still too often confuse and conflate adjudicative proceedings with administrative hearings. A hearing may be a part, but only a part, of an adjudicative proceeding under UAPA. Indeed the sponsors and supporters of S.B. 11 are guilty of this fallacy, as shown in the expressed reasons for S.B. 11 listed above.
If the DEQ was experiencing increasing complexity and costs in resolving permit applications, it was not because the DEQ had to follow the UAPA, but because the DEQ did not understand and take advantage of the flexibility UAPA gave it to avoid hearings in the case of a granted application.
Although it is clear that S.B. 11 was unnecessary, it passed the Utah Legislature and now it has created special adjudicative procedures for the DEQ, just the situation that UAPA was adopted to stop. That is why I call S.B. 11 the “re-Balkanization” of Utah administrative law in the title of this article.
Although I argue that S.B. 11 was unnecessary and thus was a mistake, I will allow that the “EPA-like appellate-type” hearing procedure described in S.B. 11 might be seen as a valuable new model of administrative process in the granting or denial of permits by state agencies generally. The UAPA policy decision, that all state agency administrative process should be centralized in the UAPA and be available to all agencies uniformly, see Alvin R. Thorup & Stephen G. Wood, Utah’s Administrative Procedures Act: A 20-Year Perspective 85 (2009), calls for such a process to be placed within the UAPA as an alternative available to all agencies, rather than be “Balkanized” into only the DEQ statutes.
I call upon the Utah Legislature at the next opportunity to remove the new S.B. 11 procedures from the DEQ statutes and, if deemed necessary and valuable even after this discussion in this article, place them within the UAPA as a uniform option for all agencies.
S.B. 11 is internally flawed as well. For example, while its avowed desire is to rid DEQ of “UAPA formal adjudicatory procedures” S.B. 11, lines 171-72, elsewhere the bill provides that the administrative law judge must act “in accordance with [UAPA], following the relevant procedures for formal adjudicative proceedings.” S.B. 11, lines 264-66, available at http://le.utah.gov/~2012/bills/sbillenr/sb0011.pdf. Another example is the confusing way that the term “request for agency action” is used in S.B. 11. This term is not defined in S.B. 11, and so I must assume its meaning is as provided in UAPA. In S.B. 11 a request for agency action is to be filed to challenge the agency’s decision on a denied application for an environmental permit. Yet if a request for agency action is as defined in UAPA, the request for agency action occurred when the application was filed. The hearing takes place, within the adjudicative proceeding, only if requested by an aggrieved party.
My last problem is that in a dozen or more places in S.B. 11, the user is referred back to governing provisions of the UAPA. The frequency with which the authors of S.B. 11 cite back to UAPA is also an argument implicitly made by them that S.B. 11 really is unnecessary, or that it should have been an amendment to UAPA.
In Dr. Suess’s story The Lorax, recently made into a movie, the Lorax announces that he “speaks for the trees.” I wish that someone would be a Lorax on Utah’s capitol hill and speak for the UAPA when administrative process problems in agencies are being discussed at the Utah Legislature. All too often these process problems are not the fault of the UAPA, but are the result of agencies, courts, and legislators not understanding the UAPA and its built in flexibility, and passing that misunderstanding off as gospel to new and inexperienced legislators. Such was the case with S.B. 11.
1. “The Lorax” is a book, and a character in a book, by Theodor Geisel, a/k/a/ Dr. Seuss. It is also the name of a Universal Studios/Illumination Entertainment motion picture based on the book. The author acknowledges that The Lorax and all Dr. Seuss characters enjoy trademark and copyright protection, pursuant to rights held by Dr. Seuss Enterprises, LP.