Idaho Admin. Code r. 58.01.25.204

Current through September 2, 2024

Section 58.01.25.204 - APPEALS PROCESS

01.Petition for Review of a Permit Decision. Appeal of a final IPDES permit decision, issued under Section 107, to the Hearing Authority is commenced by filing a Petition for Review with the Department's Hearing Coordinator within the time prescribed in Subsection 204.01.b. The "Hearing Authority" will be a Hearing Officer appointed by the Director from a pool of Hearing Officers approved by the Board.

a. A person who is aggrieved by the final permit decision may file a Petition for Review as provided in this section. A person aggrieved is limited to the permit holder or applicant, and a person or entity who filed comments or who participated in the public meeting on the draft permit.

b. A Petition for Review must be filed with the Department's Hearing Coordinator within twenty-eight (28) days after the Department serves notice of the final permit decision under Section 107. A petition is filed when it is received by the Department's Hearing Coordinator at the address specified in Subsection 204.13.

c. In addition to meeting the requirements in Subsection 204.06, a Petition for Review must:

i. Be confined to the issues raised during the public comment process or to changes made to the permit by the Department after the close of the public comment period;

ii. Identify the permit condition or other specific aspect of the permit decision being challenged;

iii. State the legal and factual basis for the petitioner's contentions;

iv. State the relief sought; and

v. State the basis for asserting the petitioner is an aggrieved person.

02.Public Notice of the Petition for Review. Within fourteen (14) days of the date a Petition for Review has been filed, the Hearing Authority must give reasonable notice to the public of the petition.

03.Administrative Record Filed By the Department. The Department will file a certified copy of the administrative record, as identified in Section 600, with an index within twenty-eight (28) days of the date the Petition for Review was filed.

04.Participation by the Permit Applicant or Permit Holder. A permit applicant or permit holder who did not file a petition but who wishes to participate in the appeal process must file a notice of appearance within twenty-eight (28) days of the date the Petition for Review was filed.

05.Petition to Intervene. A person who has a direct and substantial interest in the outcome of the Petition for Review may file a Petition to Intervene.

a. The Petition to Intervene must state the interest of the intervener, and why intervention will not unduly broaden the issues and cause delay or prejudice to the parties.

b. Petitions to Intervene must be filed within fourteen (14) days of the notice of filing of the Petition for Review.

c. Any party opposing a Petition to Intervene must file objections within seven (7) days after service of the Petition to Intervene and serve the objection upon all parties of record and upon the person petitioning to intervene.

d. If a Petition to Intervene shows direct and substantial interest in the outcome of the Petition for Review, does not unduly broaden the issues, and will not cause delay or prejudice to the parties, the Hearing Authority must grant intervention.

06.Content and Form Requirements for Petitions and Briefs. Petitions and briefs filed under this section must:

a. Identify, in the caption, the permit applicant or holder, permitted facility, and permit number. In the caption, include the case number, if available during filing, and title of the document, and

b. Specify on the upper left corner of the first page, the name, address, telephone number, e-mail address and facsimile number, if any, of the person filing the document. If the person filing the document is a representative of a party as provided in Subsection 204.11, the document must identify the name of the person or entity represented. No more than two (2) representatives for service of documents may be listed.

07.Augmenting the Administrative Record. Consideration of the Petition for Review by the Hearing Authority is limited to the certified administrative record unless, upon the request of a party, the Hearing Authority allows the record to be augmented. A request to augment the record must be filed within fourteen (14) days of the filing of the certified administrative record, unless intervention is granted, in which case the request to augment must be filed within fourteen (14) days of the date the order granting intervention is issued. The Hearing Authority may allow the record to be augmented if the requesting party shows that the additional information is material, is relevant to the issues raised in the appeal and that:

a. Good reasons exist for failure to present the information during the permitting proceeding; or

b. Alleged irregularities exist in the permitting proceeding and the party wishes to introduce evidence of the alleged irregularities.

08.Brief of the Petitioner. Once requests to augment the record and motions to intervene have been determined, the Hearing Authority must issue an order notifying the parties that the administrative record has been settled and the date the petitioner must file a brief in support of the Petition for Review. In addition to meeting the requirements of Subsection 204.06, the brief must include:

a. Legal arguments and citations to legal authority supporting the allegations in the Petition for Review; and

b. Factual support for the allegations in the Petition for Review, including citations to the administrative record.

c. Statement whether the party requests an opportunity for oral argument.

09.Response Briefs. Unless an alternative date is set by the Hearing Authority, the Department and all other parties must file response briefs within twenty-eight (28) days of the service of the petitioner's brief. In addition to meeting the requirements of Subsection 204.06, the response briefs must include:

a. Response to the arguments and assertions in the petitioner's brief (either in support or opposed);

b. Citation to legal authorities and facts in the administrative record relied upon; and

c. Statement whether the party requests an opportunity for oral argument.

10.Reply Briefs by the Petitioner. Unless an alternative date is set by the Hearing Authority, the petitioner may file a reply brief within fourteen (14) days after service of response briefs. A petitioner may not raise new issues or arguments in the reply.

11.Representation of Parties. Unless otherwise authorized or required by law, appearances and representation of parties or other persons are as follows:

a. A natural person may represent himself or herself or be represented by an attorney or, if the person lacks full legal capacity to act for himself or herself, then by a legal guardian or guardian ad litem or representative of an estate;

b. General partnership may be represented by a partner or an attorney;

c. Corporation, or any other business entity other than a general partnership, must be represented by an attorney;

d. Municipal corporation, local government agency, unincorporated association or nonprofit organization must be represented by an attorney; or

e. State, federal, or tribal governmental entity or agency must be represented by an attorney.

12.Substitution and Withdrawal of Representatives. A party's representative may change and a new representative may be substituted by notice to all parties if the proceedings are not unreasonably delayed. Representatives who wish to withdraw from a proceeding must immediately file a motion to withdraw representation and serve that motion on the party represented and all other parties.

13.Filing and Service Requirements.

a. Documents must be filed with the Hearing Coordinator and may be filed by email, US mail, hand-delivery, or fax. The Hearing Coordinator assigns case docket numbers, maintains case records. and issues notices on behalf of the Department. Information for filing documents is available at www.deq.idaho.gov/petitions-for-review. The documents are deemed to be filed on the date received by the Hearing Coordinator. Upon receipt of the filed document, the Hearing Coordinator will provide confirmation to the originating party.

b. Documents filed after the petition must be served on all parties or representatives, unless otherwise directed by the Hearing Authority.

c. Service of documents on the named representative is valid service upon the party for all purposes in the proceeding.

14.Proof of Service. Every document meeting conditions for service must be attached to or accompanied by proof of service. A certificate of service template is available at https://www.deq.idaho.gov/public-information/laws-guidance-and-orders/petitions-for-review-and-precedential-orders

15.Motions. A request for an interlocutory or procedural order or other relief must be made by written motion unless these rules prescribe another form.

a. A motion must specifically state the grounds for the motion, the relief sought, and the legal argument supporting the motion. Before filing a motion, parties must attempt to ascertain whether the other parties concur or object to the motion and indicate in the motion the attempt made and the response obtained.

b. A party may file a response to a motion. Responses must specifically state the grounds for opposition and the legal argument supporting the motion. The response must be filed within fifteen (15) days after service of the motion unless the Hearing Authority shortens or extends the time for response.

c. A reply to a response must be filed within ten (10) days after service of the response. A reply must not introduce new issues or arguments and may respond only to matters presented in the response.

d. The Hearing Authority may act on a motion for a procedural order at any time without a response.

e. Parties must file motions for extensions of time before the due date to allow other parties reasonable opportunity to respond to the request for more time and to provide the Hearing Authority with a reasonable opportunity to issue an order before the due date.

16.Oral Argument. The Hearing Authority may hold oral argument on its own initiative or at its discretion in response to a request by one or more of the parties.

17.Withdrawal of Permit or Portions of Permit by the Department. The Department may, at any time, upon notification to the Hearing Authority and all parties, withdraw the permit or specified portions of the permit and prepare a new draft permit under Section 108 addressing the portions withdrawn. The new draft permit will proceed through the same process of public comment and opportunity for a public meeting as other draft permits. If applicable, portions of the permit that are not withdrawn continue to apply, unless stayed under Sections 205 (Contested Permit Conditions) and 206 (Stays of Contested Permit Conditions). For those portions of the permit that DEQ does not withdraw that are part of the appeal, the appeal will continue.

18.Request to Dismiss Petition. The petitioner, by motion, may request the Hearing Authority to dismiss its appeal. The motion must state the reason for its request.

19.Burden of Proof. The petitioner has the burden of proving the allegations in the Petition for Review. Factual allegations must be proven by a preponderance of the evidence.

20.Appointment of Hearing Officers. The Hearing Authority will be a Hearing Officer appointed by the Director from a pool of Hearing Officers approved by the Board. Hearing Officers should be persons with technical expertise or experience in the issues involved in IPDES appeals. Notice of appointment of a Hearing Officer will be served on all parties. No Hearing Officer will be appointed who has a conflict of interest as defined in 40 CFR 123.25(c).

21.Scope of Authority of the Hearing Authority. The Hearing Authority has authority:

a. To set schedules and take other actions to ensure an efficient and orderly adjudication of the issues raised in the Petition for Review;

b. To hear and decide motions; and

c. To issue an order that decides the issues raised in the appeal, including findings of fact and conclusions of law. The required contents of an order are stated in Subsection 204.24.

22.Ex Parte Communications. The Hearing Authority must not communicate, directly or indirectly, regarding substantive issues in the permit appeal with any party, except upon notice and opportunity for all parties to participate in the communication. The Hearing Authority may communicate ex parte with a party concerning procedural matters (e.g., scheduling). When the Hearing Authority becomes aware of a written ex parte communication regarding a substantive issue from a party or representative of a party during an appeal, the Hearing Authority shall place a copy of the communication in the case file and order the party providing the written communication to serve a copy of the written communication upon all parties of record. Written communications from a party showing service upon all other parties are not ex parte communications.

23.Alternative Dispute Resolution. Parties to the permit appeal may agree to use alternative dispute resolution.

24.Final Orders. Final orders are issued by the Hearing Authority upon review of the petitions, briefs, and the administrative record on appeal. Motions for reconsideration of a final order will not be considered. Final orders must contain:

a. A reasoned statement in support of the decision;

b. Findings of fact, with reference to the portions of the administrative record that support the findings. The findings of fact must be based exclusively on the administrative record, or if augmented during the appeal, the augmented record;

c. Conclusions of law with respect to legal issues raised in the appeal;

d. The final order must either affirm the permitting decision, or vacate and remand the decision to the Department with instructions; and

e. A statement of the right to judicial review as stated in Section 204.26.

25.Final Agency Action for Purposes of Judicial Review.

a. Filing a Petition for Review is a prerequisite to seeking judicial review of the Department's permitting decision.

b. For judicial review under Sections 39-107 and 67-5270, Idaho Code, final agency action or determination regarding an appeal of a permit occurs when a final order that affirms the Department's permitting decision is issued.

c. An order that vacates and remands the decision to the Department with instructions is not a final agency action for judicial review.

26.Petition for Judicial Review.

a. Any person aggrieved by a final agency action or determination by the Department as defined in Subsection 204.25 has a right to judicial review by filing a petition for judicial review.

b. The petition for judicial review must be:

i. Filed with the Hearing Coordinator in accordance with Subsection 204.13 and with the district court pursuant to Section 67-5272, Idaho Code; and

ii. Served on the Hearing Authority, all parties, the Director of the Department, and the Attorney General of the State of Idaho.

c. Pursuant to Section 67-5273, Idaho Code, a petition for judicial review of a final agency action must be filed within twenty-eight (28) days of the service date of a final order issued by the Hearing Authority.

27.IPDES General Permits.

a. Persons affected by an IPDES general permit may not file a petition under this section or otherwise challenge the conditions of a general permit in further Department proceedings. Instead, they may:

i. Challenge the conditions in a general permit by filing an action in court; or

ii. Apply for an individual IPDES permit under Section 105, as authorized in Section 130, and may then petition the Hearing Authority to review the individual permit.

b. As provided in Subsection 130.05.c., any interested person may also petition the Department to require an individual IPDES permit for any discharger eligible for authorization to discharge under an IPDES general permit.

c. The Department's decision to terminate, revoke or deny coverage under a general permit and to require application for an individual permit may be appealed under Section 204.

28.Appeals of Variances.

a. When the Department issues a permit on which EPA has made a variance decision, separate appeals of the Department permit and EPA variance decision are possible. If the owner or operator is challenging the same issues in both proceedings, the EPA Region 10 Administrator will decide, in consultation with the Department, which case will be heard first.

b. Variance decisions made by EPA may be appealed under the provisions of 40 CFR 124.19.

c. Stays for variances other than CWA Section 301(g) variances are governed by Section 205 and 206.

Idaho Admin. Code r. 58.01.25.204

Effective July 1, 2024