On May 28, Sen. Camera Bartolotta (R-Washington) reintroduced legislation-- Senate Bill 717-- which would create a new standard for the review for appeals of DEP permit actions before the Environmental Hearing Board by limiting parties appealing permit decisions-- a company or a citizens group-- to issues raised in and information contained in a record of decision of a permit prepared by DEP.

A companion bill-- Senate Bill 718-- would shorten the term of a judge on the Environmental Hearing Board from six to five years.

Background

The record of decision, as defined in Senate Bill 717, is “A decision justification document prepared by the department.  The term includes any department correspondence on a permit application to an applicant, including administrative completeness determination, technical deficiency letter and written response to the department by an applicant, summary of the department's written response to public comment on a permit application, applicant written response to public comment, other State agency written comment to a permit application and written response by the department or permit applicant.”

The bill says, “In an appeal of a permit issued by the department in which a record of decision has been prepared by the department at the time of the permit decision, the standard for review by the board shall be exclusively limited to the record of decision.

“The moving party must prove by the preponderance of evidence contained in the record of decision that the department's action in issuing or denying the permit was arbitrary and capricious.”

Under this new standard of review, no experts could be called or information presented to rebut information in the record of decision or a conclusion by DEP during the appeal to show DEP misinterpreted, ignored or was not aware of information when it made its decision.

The issues discussed on appeal and the information about that issue and how DEP responded must be in the record of decision prepared by DEP or it cannot be considered by the Environmental Hearing Board.

No Artificial Limit Now

Presently, there is no artificial limit on the information individuals and businesses can independently raise in appealing DEP permits to the Board, if they believe it is relevant.

Recall that appeals only come after any potential appellants see the final permit issued by DEP with any conditions which may or may not address issues raised during any public comment process and which may or may not impose additional wanted or unwanted burdens on a company seeking a permit.

The final permit and conditions may also raise new issues not covered in the original permit subject to a comment period that would be precluded from being raised if appeals are just based on the record of decision.

Lengthen Permit Reviews/Add Costs

This change in review standard puts an additional burden on DEP staff to prepare  decision justification documents, which it does not do now, and create a paper record of decision in case a permit is appealed adding not only time, but cost to the permit review process.

In addition, citizen groups that may appeal a permit decision and a company seeking a permit would have to submit all their possible grounds of appeal and all the possible information to support it during the comment period on a permit, rather than raising only relevant information and issues on appeal under the present process.

Companies, likewise, would have to anticipate comments by others and submit every scrap of information they could in the comment period to respond to possible comments so DEP’s approval of their permit application is justified from their point of view.

Under the present process for handling comments on permits, neither a citizens group nor company has the opportunity to see, let alone respond to comments submitted during the public comment period on a permit by anyone else so both would be at a disadvantage.

In the present appeals process, both sides get to see the arguments and justifications they are using to appeal or defend a permit action by DEP.  They also have the discovery process to uncover additional information.

New Lever To Delay Permits

The fact the new standard of review would be applied only if DEP decides to create a record of decision means DEP would have to make a decision on each permit whether to create a record of decision which in itself may be an appealable action.

It would introduce a new lever those opposed to certain kinds of permits could use.  A request that DEP create a record of decision on any permit right up front forcing DEP to make a decision creating not only more work for DEP staff, but also further delay in permit decisions.

0.30% Of DEP Actions Appealed

The Environmental Hearing Board currently has a “de novo” standard of review which  means the Board can review the evidence as though considering the issues for the first time allowing the Board to substitute its own judgment about the application of the law to the facts to determine whether DEP acted correctly.

But this process is only applied to the very few DEP actions actually appealed, not to every permit decision DEP makes.

In March 2019, DEP reported to the House Appropriations Committee only 0.30 percent of the 42,689 final actions taken by DEP were appealed to the Environmental Hearing Board in 2018 or 128 appeals of permits (mostly) and other actions.  And case numbers have not changed dramatically since then.

Over the last 10 years, the EHB appeal numbers have not varied much, DEP said- between 117 and 224 appeals per year. The 10-year annual average for appeals is 191.

Both bills were referred to the Senate Environmental Resources and Energy Committee.

These bills were introduced last session as Senate Bill 726 and Senate Bill 727 which were reported out of Committee, but saw no further action.

[Posted: May 30, 2021]

5/30/2021