Current through August 31, 2023
01.
Petition
for Review of a Permit Decision. Appeal of a final IPDES permit
decision, issued under Section
107 (Decision Process), 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" shall be a Hearing Officer appointed by the Director from a pool of
Hearing Officers approved by the Board. (3-24-22)
a. Any 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 any person
or entity who filed comments or who participated in the public meeting on the
draft permit. (3-24-22)
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 (Decision Process). A petition
is filed when it is received by the Department's Hearing Coordinator at the
address specified in Subsection
204.13. (3-24-22)
c. In addition to meeting the requirements in
Subsection 204.06, a Petition for Review
must: (3-24-22)
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;
(3-24-22)
ii. Identify the permit
condition or other specific aspect of the permit decision that is being
challenged; (3-24-22)
iii. Set
forth the legal and factual basis for the petitioner's contentions;
(3-24-22)
iv. Set forth the relief
sought; and (3-24-22)
v. Set forth
the basis for asserting that the petitioner is an aggrieved person.
(3-24-22)
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. (3-24-22)
03.
Administrative Record Filed By the
Department. The Department shall file a certified copy of the
administrative record, as identified in Section
600 (Administrative Records and
Data Management), with an index within twenty-eight (28) days of the date the
Petition for Review was filed. (3-24-22)
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. (3-24-22)
05.
Petition to Intervene. Any
person who has a direct and substantial interest in the outcome of the Petition
for Review may file a Petition to Intervene. (3-24-22)
a. The Petition to Intervene must set forth
the interest of the intervener, and why intervention would not unduly broaden
the issues and cause delay or prejudice to the parties. (3-24-22)
b. Petitions to Intervene must be filed
within fourteen (14) days of the notice of filing of the Petition for Review.
(3-24-22)
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. (3-24-22)
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 shall grant intervention.
(3-24-22)
06.
Content and Form Requirements for Petitions and Briefs. All
petitions and briefs filed under this section must: (3-24-22)
a. Identify, in the caption, the permit
applicant or holder, the permitted facility, and the permit number. The caption
should also include the case number, if available at the time of filing, and
the title of the document, and (3-24-22)
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.
(3-24-22)
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: (3-24-22)
a. There were good reasons for
failure to present the information during the permitting proceeding; or
(3-24-22)
b. There were alleged
irregularities in the permitting proceeding and the party wishes to introduce
evidence of the alleged irregularities. (3-24-22)
08.
Brief of the Petitioner.
Once all requests to augment the record and motions to intervene have been
determined, the Hearing Authority shall issue an order notifying the parties
that the administrative record has been settled and of the date by which the
petitioner must file petitioner's brief in support of the Petition for Review.
In addition to meeting the requirements of Subsection
204.06, the brief must include:
(3-24-22)
a. The legal arguments and citations
to legal authority that support the allegations in the Petition for Review; and
(3-24-22)
b. The factual support
for the allegations in the Petition for Review, including citations to the
administrative record. (3-24-22)
c.
A statement regarding whether the party desires an opportunity for oral
argument. (3-24-22)
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: (3-24-22)
a. A response to the
arguments and assertions in the petitioner's brief (either in support or
opposed); (3-24-22)
b. A citation
to all legal authorities and facts in the administrative record relied upon;
and (3-24-22)
c. A statement
regarding whether the party desires an opportunity for oral argument.
(3-24-22)
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. (3-24-22)
11.
Representation of Parties.
Unless otherwise authorized or required by law, appearances and representation
of parties or other persons shall be as follows: (3-24-22)
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; (3-24-22)
b. A general partnership may be represented
by a partner or an attorney; (3-24-22)
c. A corporation, or any other business
entity other than a general partnership, must be represented by an attorney;
(3-24-22)
d. A municipal
corporation, local government agency, unincorporated association or nonprofit
organization must be represented by an attorney; or (3-24-22)
e. A state, federal or tribal governmental
entity or agency must be represented by an attorney.
(3-24-22)
12.
Substitution and Withdrawal of Representatives. A party's
representative may be changed and a new representative may be substituted by
notice to all parties so long as 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. (3-24-22)
13.
Filing and Service
Requirements. (3-24-22)
a. All
documents concerning actions governed by these rules must be filed with the
Hearing Coordinator at the following address: Hearing Coordinator, Department
of Environmental Quality, 1410 N. Hilton, Boise, ID 83706. Documents may also
be filed by fax or may be filed electronically. The Hearing Coordinator's fax
number and email address for filing electronically are 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. (3-24-22)
b. All documents subsequent to the petition
must be served on all parties or representatives, unless otherwise directed by
the Hearing Authority. (3-24-22)
c.
Service of documents on the named representative is valid service upon the
party for all purposes in the proceeding. (3-24-22)
14.
Proof of Service. Every
document meeting the requirements for service must be attached to or
accompanied by proof of service containing the following certificate:
|
I hereby certify that on this (insert date), a true and
correct copy of the foregoing (insert name of document) was served on the
following as indicated below:
(insert names and addresses of parties and method of
delivery (first class U.S. mail, facsimile, hand-delivery, or overnight
express))
(Signature) |
(3-24-22)
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. (3-24-22)
a. A motion must state with particularity the
grounds for the motion, the relief sought, and the legal argument necessary to
support the motion. In advance of filing a motion, parties must attempt to
ascertain whether the other parties concur or object to the motion and must
indicate in the motion the attempt made and the response obtained.
(3-24-22)
b. Any party may file a
response to a motion. Responses must state with particularity the grounds for
opposition and the legal argument necessary to support 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.
(3-24-22)
c. Any reply to a
response must be filed within ten (10) days after service of the response. A
reply must not introduce any new issues or arguments and may respond only to
matters presented in the response. (3-24-22)
d. The Hearing Authority may act on a motion
for a procedural order at any time without awaiting a response.
(3-24-22)
e. Parties must file
motions for extensions of time sufficiently in advance of the due date to allow
other parties to have a reasonable opportunity to respond to the request for
more time and to provide the Hearing Authority with a reasonable opportunity to
issue an order prior to the due date. (3-24-22)
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. (3-24-22)
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 (Draft Permit and Fact Sheet)
addressing the portions so withdrawn. The new draft permit must proceed through
the same process of public comment and opportunity for a public meeting as
would apply to any other draft permit. If applicable, any 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). The appeal shall continue with
respect to those portions of the permit that are contested in the appeal that
the Department does not withdraw. (3-24-22)
18.
Request to Dismiss Petition.
The petitioner, by motion, may request to have the Hearing Authority dismiss
its appeal. The motion must briefly state the reason for its request.
(3-24-22)
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. (3-24-22)
20.
Appointment of Hearing Officers. The Hearing Authority shall 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 shall be served on all parties. No Hearing
Officer shall be appointed that has a conflict of interest as defined in
40 CFR
123.25(c).
(3-24-22)
21.
Scope of
Authority of the Hearing Authority. The Hearing Authority shall have the
following authority: (3-24-22)
a. The
authority to set schedules and take such other actions to ensure an efficient
and orderly adjudication of the issues raised in the Petition for Review;
(3-24-22)
b. The authority to hear
and decide motions; and (3-24-22)
c. The authority to issue an order that
decides the issues raised in the appeal and includes findings of fact and
conclusions of law. The required contents of an order are set forth in
Subsection 204.24.
(3-24-22)
22.
Ex
Parte Communications. The Hearing Authority shall not communicate,
directly or indirectly, regarding any substantive issue 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
any 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
file for the case 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. (3-24-22)
23.
Alternative Dispute Resolution. Parties to the permit appeal may
agree to use a means of alternative dispute resolution. (3-24-22)
24.
Final Orders. (3-24-22)
a. Final orders are issued by the Hearing
Authority upon review of the petitions, briefs and the administrative record on
appeal. (3-24-22)
b. Every final
order shall contain the following: (3-24-22)
i. A reasoned statement in support of the
decision; (3-24-22)
ii. 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;
(3-24-22)
iii. Conclusions of law
with respect to legal issues raised in the appeal; (3-24-22)
iv. The final order shall either affirm the
permitting decision, or vacate and remand the decision to the Department with
instructions; and (3-24-22)
v. A
statement of the right to judicial review as set forth in Section
204.26.
(3-24-22)
c. Motions for
reconsideration of any final order shall not be considered.
(3-24-22)
25.
Final
Agency Action for Purposes of Judicial Review. (3-24-22)
a. Filing a Petition for Review is a
prerequisite to seeking judicial review of the Department's permitting
decision. (3-24-22)
b. For purposes
of 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.
(3-24-22)
c. An order that vacates
and remands the decision to the Department with instructions is not a final
agency action for purposes of judicial review. (3-24-22)
26.
Petition for Judicial
Review. (3-24-22)
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. (3-24-22)
b. The petition for judicial review must be
filed with the Hearing Coordinator as set out in Subsection
204.13 and with the district
court and served on all parties. The petition for judicial review shall also be
served upon the Hearing Authority, the Director of the Department, and upon the
Attorney General of the State of Idaho. Pursuant to Section
67-5272, Idaho Code, petitions for
judicial review may be filed in the District Court of the county in which:
(3-24-22)
i. The hearing was held;
(3-24-22)
ii. The final agency
action was taken; (3-24-22)
iii.
The party seeking review of the agency action resides; or (3-24-22)
iv. The real property or personal property
that was the subject of the agency action is located.
(3-24-22)
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.
(3-24-22)
27.
IPDES
General Permits. (3-24-22)
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 do either of the following: (3-24-22)
i. Challenge the conditions in a general
permit by filing an action in court; or (3-24-22)
ii. Apply for an individual IPDES permit
under Section 105
(Application for an Individual IPDES Permit), as authorized in Section
130 (General Permits), and may then
petition the Hearing Authority to review the individual permit as provided by
in these rules. (3-24-22)
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. (3-24-22)
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
pursuant to the provisions of Section
204 (Appeals Process).
(3-24-22)
28.
Appeals of Variances. (3-24-22)
a. When the Department issues a permit on
which EPA has made a variance decision, separate appeals of the Department
permit and of the 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. (3-24-22)
b.
Variance decisions made by EPA may be appealed under the provisions of
40 CFR
124.19. (3-24-22)
c. Stays for variances other than Clean Water
Act section 301(g) variances
are governed by Section
205 (Contested Permit Conditions)
and 206 (Stays of Contested Permit Conditions). (3-24-22)
