Kennon v. Air Quality Board

2009 UT 77
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
James O. Kennon, and Dick No. 20080042
Cumiskey, members of Save
Our Air & Resources (SOAR),
Petitioners,
v.
Air Quality Board and F I L E D
Sevier Power Company,
Respondents. December 4, 2009
---
Original proceeding in this court
Attorneys: James O. Kennon, Dick Cumiskey, petitioners pro se
Mark L. Shurtleff, Att’y Gen., Fred G. Nelson,
Paul McConkie, Christian C. Stephens, Asst. Att’ys
Gen., Salt Lake City, for Air Quality Board
Fred W. Finlinson, Saratoga Springs, James D. Gilson,
Brian W. Burnett, Salt Lake City, for Sevier Power
Company
---
DURHAM, Chief Justice:
INTRODUCTION
¶1 James O. Kennon and Dick Cumiskey appeal the decision
of the Utah Air Quality Board (the Board) denying their Request
for Agency Action. The Request for Agency Action sought the
invalidation of a 2004 approval order granted to the Sevier Power
Company (the Power Company) because, Kennon and Cumiskey argued,
the Division of Air Quality failed to revoke, or even adequately
review, the approval order after the Power Company failed to
commence construction within eighteen months of the date the
approval order was granted.
BACKGROUND
I. THE APPROVAL ORDER AND THE GOVERNING REGULATIONS
¶2 On October 12, 2004, Richard W. Sprott, executive
secretary (the Secretary) for the Division of Air Quality (the
Division) issued an approval order, granting the Power Company a

1 Renumbered to R307-401-18 in 2006. (making stylistic
changes). See 23 Utah Bull. 14, 22 (Dec. 1, 2005).
No. 20080042 2
Prevention of Significant Deterioration (PSD) permit for its
proposed 270 megawatt coal-fired power plant. At the time the
approval order was granted, Utah Administrative Code rule
307–401-11 required that:
Approval orders issued by the executive
secretary in accordance with the provisions
of R307-401 shall be reviewed eighteen months
after the date of issuance to determine the
status of construction . . . . If a
continuous program of construction, . . . is
not proceeding, the executive secretary may
revoke the approval order.
Utah Admin. Code r. 307-401-11 (2004).1
¶3 Similarly, paragraph 9 of the approval order required
that if the executive secretary is notified that construction of
the approved facility has not been completed within eighteen
months from the date of the approval order, “the executive
secretary shall require documentation of the continuous
construction and/or installation of the operation and may revoke
the AO in accordance with R307-401-11.” Approval Order: Sevier
Power Company’s 270 MW Coal-Fired Power Plant, at 2 (Oct. 12,
2004).
¶4 Federal clean air regulations include a regulation
parallel to the Utah eighteen-month requirement for construction
to begin. See 40 C.F.R. § 52.21(r)(2) (2008). However, the
federal regulation automatically invalidates approval to
construct if construction is not commenced within eighteen months
of the date the approval order is issued, and similarly requires
that construction be completed within a reasonable time. Id.
The federal regulations allow for an extension “upon a
satisfactory showing that an extension is justified.” Id.
II. THE POWER COMPANY’S REQUEST
¶5 Thirteen months after the Secretary granted the
approval order, the Power Company sent a letter to the Division
explaining that ongoing litigation involving the Power Company’s
proposed plant had delayed construction and requesting the
Division to “hold in abeyance” the running of the eighteen-month
period in which the Power Company was required to begin
construction. Without an extension, the eighteen month period
would have expired April 12, 2006. The Division neither granted

3 No. 20080042
an extension nor revoked the order. See Letter from Richard W.
Sprott, Executive Secretary, Utah Air Quality Board, to James O.
Kennon (May 8, 2007).
III. THE BOARD’S ACTIONS
¶6 Well over a year later, on April 4, 2007, during a
Board meeting, the Board responded to a motion to dismiss that
was part of a request for agency action filed by the Sierra Club
separately from this case. In the motion to dismiss, the Sierra
Club sought to invalidate the approval order, alleging that the
executive secretary had failed to perform a mandatory eighteen-
month review pursuant to rule 307-401-11 of the Utah
Administrative Code. The Board denied the motion and instructed
the Secretary to respond to the Power Company’s November 2005
request to hold in abeyance the eighteen-month review period.
The Board’s determinations during the April hearing were
memorialized in an order dated May 4, 2007.
¶7 On April 5, 2007, James Kennon inquired by letter
whether an extension to the approval order had been granted to
the Power Company, and if so, requested a reversal of the
decision in order to receive public comment. On April 25, 2007,
Mr. Kennon filed a GRAMA request for all records relating to a
possible extension of the approval order. The Secretary
responded on May 8, 2007 and explained that the Secretary had
received a request from the Power Company to delay the beginning
of the eighteen-month review period until all adjudications
relating to the approval order, including any appeals, concluded.
The Secretary indicated that he had reviewed this request at that
time and determined that there was no persuasive reason for
revoking the approval order, but did not issue a formal response.
The letter concluded by stating that “no extension was required
under the regulation, and none was granted.” Letter from Richard
W. Sprott, Executive Secretary, Utah Air Quality Board, to James
O. Kennon (May 8, 2007). Attached to the letter, the Secretary
provided a copy of the Power Company’s 2007 letter, the Board’s
May 4, 2007 order, and a copy of a handwritten Post-it note,
which stated: “12/19/05 contacted Re: eighteen month Tech
analysis.”
¶8 On June 6, 2007, the Secretary sent a letter to the
Power Company’s legal counsel, explaining that the Division had
reviewed the Power Company’s request upon receipt of the November
2005 letter. The Secretary indicated that at that time “a
decision was made not to revoke the Approval Order.” Letter from
Richard W. Sprott, Executive Secretary, Utah Air Quality Board,
to Fred W. Finlinson (June 6, 2007). Explaining how that
decision was reached, the Secretary indicated that “the matter

No. 20080042 4
was reviewed by New Source Review Engineer John Jenks, who in
turn consulted with his supervisor . . . . They in turn
consulted with me. Based upon this review, it was determined
that no persuasive reason existed for revocation . . . .” Id.
¶9 James O. Kennon and Dick Cumiskey, as individuals, and
on behalf of the members of Save Our Air and Resources, filed a
petition to intervene and a request for agency action on June 21,
2007. This petition challenged the June 2007 letter, arguing
that the Secretary had not complied with condition 9 of the
approval order and the relevant administrative rules. The Board
consolidated its hearing on Kennon and Cumiskey’s Request for
Agency Action with the Sierra Club’s Request for Agency Action.
¶10 The Board heard argument on October 1 and November 12,
2007. During the hearings, Kennon and Cumiskey argued that the
approval order was invalid because (1) construction did not
commence within eighteen months and federal law requires that
approval orders automatically expire if construction has not
begun within that time, and (2) the Board did not adequately
conduct an eighteen-month review required by the Utah
administrative rules because it did not conduct a new best
available control technology (BACT) review and did not establish
a new construction date.
¶11 The Board ruled on the issues during the hearings. On
October 1, the Board ruled that the approval order did not
automatically expire because the federal regulations were not
applicable and the Utah regulations granted the executive
secretary discretion to decide whether or not to revoke an
approval order if construction had not commenced after eighteen
months. Then, in November, the Board ruled that the Secretary
conducted a proper review. In reaching this holding, the Board
found that the Division review involved a consultation between
Division staff and management and an informal comparison between
the emission limitations imposed by the Power Company’s permit
and the PSD permits issued after the Power Company’s. This
review, according to the Secretary, indicated that the BACT
assessments for the Power Company’s facility were not outdated,
and therefore there was no reason to revoke the Power Company’s
Approval Order. The only evidence of this review was the Post-it
note provided in response to the records request and the general
testimony of the Secretary and one of the Division’s permit
engineers. The engineer did not remember nor was there any
written record of the permits the engineer reviewed in the
informal comparison or the technology utilized by the permits
used in the comparison.

5 No. 20080042
¶12 The Board memorialized the October and November rulings
in an order dated January 9, 2008. Kennon and Cumiskey appeal
this order. We have jurisdiction pursuant to Utah Code sections
63G-4-403 (Supp. 2008) and 78A-3-102(3)(b) (2008).
ISSUES AND STANDARD OF REVIEW
¶13 Kennon and Cumiskey direct our attention to three
issues: (1) whether the Board correctly determined that 40
C.F.R. § 52.21(r)(2) did not apply to the approval order, and
thereby declined to find that Sevier Power Company’s approval
order automatically expired eighteen months after it was granted;
(2) if the Board is required to follow only the Utah
Administrative Code, whether the Board correctly interpreted and
applied the state regulation to afford the executive secretary
discretion over whether to revoke an approval order and to not
require an explicit extension or a new BACT review at the
conclusion of eighteen months; and (3) whether the Division
violated Kennon’s and Cumiskey’s due process rights by extending
the approval order without allowing public comment on the issue.
¶14 We review the Board’s determination of which regulation
to apply and how to interpret that regulation under an
intermediate standard in which we consider whether the Division’s
determination is rational. Utah Chapter of the Sierra Club v.
Utah Air Quality Bd., 2006 UT 74, ¶ 9, 148 P.3d 960 (“[W]hen we
review questions of . . . ‘[the agency’s] interpretation of the
operative provisions of statutory law it is empowered to
administer, [agency] findings must be rationally based and are
set aside only if they are imposed arbitrarily and capriciously
or are beyond the tolerable limits of reason.’” (second and third
alterations in original) (quoting Associated Gen. Contractors v.
Bd. of Oil, Gas & Mining, 2001 UT 112, ¶ 18, 38 P.3d 291)). We
review the Board’s determination of whether the Division’s
actions violated Kennon’s and Cumiskey’s due process rights for
correctness. See State v. Briggs, 2008 UT 83, ¶ 11, 199 P.3d
935.
ANALYSIS
I. THE FEDERAL PSD PROGRAM REGULATIONS DO NOT APPLY
TO THE POWER COMPANY’S PSD PERMIT
¶15 Kennon and Cumiskey argue that the federal regulations
apply to Utah’s new source permitting for two reasons. First,
Utah has incorporated the federal regulations into its State
Implementation Plan as evidenced by the approval of the Utah PSD
program and 40 C.F.R. § 70.1. Second, they argue, Utah’s State
Implementation Plan cannot be interpreted in a manner that is

2 Kennon and Cumiskey also suggest that Utah’s rule violates
the Supremacy Clause of the U.S. Constitution. This argument
fails. “A claim under the Supremacy Clause simply asserts that a
federal statute has taken away local authority to regulate a
certain activity.” W. Air Lines, Inc. v. Port Auth. of N.Y. &
N.J., 817 F.2d 222, 225 (2d Cir. 1987). In this case, the Clean
Air Act explicitly provides for states to regulate air pollution.
Thus, Utah’s enforcement regulation cannot violate the Supremacy
Clause because it was adopted at the urging and approval of the
federal government.
No. 20080042 6
less stringent than the federal regulations. Conversely, the
Power Company argues that the federal regulations apply only when
a state does not have an approved PSD program as part of their
state implementation plan.
¶16 In a companion case issued today, Utah Chapter of the
Sierra Club v. Utah Air Quality Bd., 2009 UT __, __ P.3d ___
(Sierra Club II), we addressed this argument in responding to the
Sierra Club’s identical claims. We held that the federal
enforcement rule was not incorporated into Utah’s State
Implementation Plan in 2004. Id. Instead, as the legislative
history of various federal regulations indicate, the EPA approved
Utah’s PSD program and removed operation of the entire federal
PSD program from Utah in 1982. Further, because the EPA approved
Utah’s PSD program, we presumed that the EPA found Utah’s
enforcement rule to be sufficiently stringent. Id.2 This
understanding, however, imposes on the Division an obligation to
interpret its rule in a way that achieves the same outcome as the
federal enforcement rule--ensuring that the most current
pollution controls are used in the construction of a major
emitting source and avoiding unnecessary holds on increment
limits that could be used by other facilities. With that holding
in mind, we turn to whether the Division and Board properly
interpreted rule 307-401-11, Utah’s enforcement provision for all
new construction permits, including the PSD permit.
II. THE DIVISION MISAPPLIED UTAH’S PSD ENFORCEMENT RULE
¶17 Kennon and Cumiskey argue that the Division and Board
misinterpreted rule 307-401-11, which was incorporated into the
Power Company’s approval order as condition 9. In particular,
they argue that the Secretary does not have discretion to grant a
plea in abeyance when construction has not begun. In the
alternative, they argue that a formal review involving an
entirely new BACT analysis and a period for public comment is
required for the construction deadline to be extended. We treat
each of their arguments in turn.

7 No. 20080042
A. Utah’s Enforcement Statute Explicitly Grants the
Secretary Discretion to Revoke a PSD Permit
¶18 Kennon and Cumiskey argue that condition 9 requires the
Secretary to invalidate the approval order because the Power
Company did not provide documentation of continuous construction,
which the Secretary should have required. Further, they argue
that neither Utah nor federal law give the Secretary authority to
“hold in abeyance” a PSD permit. We disagree.
¶19 Condition 9 of the approval order does not require the
Agency to revoke the approval order. Condition 9 of the Power
Company’s approval order states:
If construction and/or installation has not
been completed within eighteen months from
the date of this AO, the Executive Secretary
shall be notified on the status of the
construction and/or installation. At that
time, the Executive Secretary shall require
documentation of the continuous construction
and/or installation of the operation and may
revoke the AO in accordance with R307-401-11.
Sevier Power Company, Division of Air Quality Approval Order
(Oct. 12, 2004) (emphasis added).
¶20 Kennon and Cumiskey focus on the language “the
Executive Secretary shall require” to argue that the approval
order imposes an obligation on the Secretary to require
documentation or otherwise invalidate the approval order. We
acknowledge that the language of the approval order includes
mandatory language relating to the requirement that documentation
be secured. However, it clearly does not mandate an automatic
revocation. Instead, the condition explicitly indicates that the
Secretary has discretion as to whether or not to revoke an
approval order. This is congruous with the requirements of rule
307, which is the source of obligations imposed on the agency.
The approval order, in contrast, imposes duties on the Power
Company, but cannot impose any additional duties on the Division,
other than those already assigned by rule 307 and any other
applicable federal and state laws. Therefore, we interpret any
language in the approval order to reflect the obligations the
Agency bears under rule 307 and nothing more.
¶21 The plain language of rule 307 grants the Secretary
discretion to revoke a PSD permit or not to revoke a permit, the
latter having the effect of granting an extension. Rule 307-401-
11 states:

No. 20080042 8
Approval orders issued by the executive
secretary in accordance with the provisions
of R307-401 shall be reviewed eighteen months
after the date of issuance to determine the
status of construction, installation,
modification, relocation or establishment. If
a continuous program of construction,
installation, modification, relocation or
establishment is not proceeding, the
executive secretary may revoke the approval
order.
Utah Admin. Code r. 307-401-11 (2004). Just as the language in
condition 9 allows discretion, rule 307-401-11 grants the
Secretary discretion to revoke or not to revoke an approval
order. Id. The use of “may,” a permissive term, indicates the
legislature’s intent to provide the Secretary with discretion.
See State v. Wallace, 2006 UT 86, ¶ 10, 150 P.3d 540. This
determination, however, does not conclude our analysis of this
phrase.
¶22 In its order, the Board also held that this rule did
not require modification of the permit, such as setting a new
deadline for construction. This was in error. As we stated in
Sierra Club II, the Board and Division are required to interpret
their PSD regulations in a manner that achieves the purpose of
the Clean Air Act’s PSD program. 2009 UT __, ¶ 21. Looking to
the rule at issue, there is no explicit language regarding the
grant of an extension or the creation of new deadlines. But it
seems clear that, by not revoking an approval order at the end of
a statutory deadline, the Secretary in effect granted an
extension.
¶23 Kennon and Cumiskey argue that this extension should
have included a new deadline for construction. We agree; an
open-ended extension is inconsistent with the underlying purpose
of the state and federal PSD programs. Because the rule does not
squarely address extensions and new deadlines, we look to other
provisions in rule 307-401 and the purpose of the PSD permit
program to determine whether an open-ended extension was
rational. See Nemelka v. Ethics & Discipline Comm. of the Utah
Supreme Court, 2009 UT 33, ¶ 17, __ P.3d ___. In describing what
must be included in an application for an approval order,
referred to in the rules as a notice of intent, rule 307-401-5(h)
requires a schedule for construction. This and the eighteen-
month period of the enforcement rule indicate an emphasis on
timely construction of the facility. As explained by the EPA
when discussing its parallel regulations, the purpose of such

9 No. 20080042
deadlines is to ensure that PSD increments are not needlessly
tied up and that the most current control technology is used by
the facility. In re: N.Y. Power Auth., 1 E.A.D. 825 (1983). The
Board was obligated to interpret rule 307-401-11 in a manner that
also achieves this purpose. We hold that it was not rational to
conclude that an open-ended extension achieved such a purpose.
Instead, by approving an extension without a new deadline for
construction, the Board removed the incentive for the Power
Company to timely construct the facility because, without a new
deadline, the Power Company may hold on to their approval order
for an indefinite amount of time. This would undoubtedly tie up
the increment limits for emitting sources, that could be used by
other entities seeking to build major emitting facilities. This
outcome exceeds the limits of what would reasonably achieve the
purpose of the enforcement statute and PSD permit program as a
whole. Therefore, we reverse the Board on this narrow issue and
remand for a determination of a proper deadline for construction
of the Power Company’s facility.
B. The Review Required by Rule 307-401-11 Must Be Performed
in a Way That Achieves the Purpose of the PSD Program
¶24 Additionally, Kennon and Cumiskey argue that Utah’s
enforcement statute requires a much more formal review than that
engaged in by the Division. They contest that this review should
follow the procedures adopted by the EPA Region IX office and
include a fully documented and complete BACT review, including a
period for public comment. The Sierra Club also asserted this
argument in Sierra Club II. 2009 UT __, ¶ 24.
¶25 We held in Sierra Club II, that rule 307-401-11 must be
interpreted in a way that achieves the purpose of the PSD
program. Additionally, as reflected in our discussion of whether
a deadline is required under the enforcement rule, we look to the
purpose of the rule when the plain language is not dispositive.
See id. ¶ 23.
¶26 The plain language of rule 307-401-11 requires a review
eighteen months after the issuance of an approval order. In this
case, review should have taken place sometime near April 12,
2006. The language of the statute, however, does not describe
the standards or procedures required for this review. As we
discussed in Sierra Club II, the purpose of the enforcement rule
is to ensure that the most current control technology is adopted.
The agency has the discretion to select the best procedure to
achieve this goal. The Board determined that the review
allegedly completed by the Division satisfied the requirements of
the state PSD program. There was not substantial evidence to
support this conclusion.

No. 20080042 10
¶27 The Power Company and the Board argue that Kennon and
Cumiskey have failed to marshal the record in order to challenge
the factual findings supporting the Board’s approval of the
review. We disagree. When challenging factual findings, a party
is obligated to marshal “all record evidence that supports the
challenged finding.” Utah R. App. P. 24(a)(9). Kennon and
Cumiskey marshaled the only evidence available to support the
Board’s findings--a photocopy of a Post-it note briefly recording
the date December 19, 2005 and the phrase “contacted RE: eighteen
month Tech analysis,” and a letter from the Division indicating
that a review had been completed. This evidence was identified
in and attached to Kennon and Cumiskey’s briefing.
¶28 As highlighted by the small amount of evidence Kennon
and Cumiskey were able to identify in the record, there was very
little evidence to support the Board’s conclusion that the
Division’s review satisfied the requirements of Utah rule 307-
401-11. A decision is supported by substantial evidence if there
is a “quantum and quality of relevant evidence that is adequate
to convince a reasonable mind to support a conclusion.”
Associated Gen. Contractors v. Bd. of Oil, Gas & Mining, 2001 UT
112, ¶ 21, 38 P.3d 291 (internal quotation marks and citations
omitted). Here, both the amount and quality of evidence were
inadequate. A record limited to a Post-it note indicating that
someone was contacted regarding a review is woefully inadequate
to convince a reasonable person that a review took place, let
alone that the review was sufficiently rigorous to ensure that an
approval order implemented the best control technology and would
not tie up increment limits unnecessarily. The pre-filed
testimony of the Secretary and the permit engineer do not
adequately bolster the barely existent written record. Instead,
the testimony merely rehearsed that a review took place. When
pressed as to the details of the review, the testifying parties
were unable to provide any specifics, such as exactly how many or
which permits were compared to that issued to the Power Company.
Therefore, we conclude that the Board’s decision was not
supported by substantial evidence and remand to the Division to
conduct and document a proper review.
III. KENNON AND CUMISKEY DID NOT ADEQUATELY BRIEF THEIR ARGUMENT
THAT THE DIVISION VIOLATED THEIR DUE PROCESS RIGHTS
¶29 Finally, Kennon and Cumiskey argue that their due
process rights were violated because no public notice was given
and no public comment was permitted regarding the decision to not
revoke the approval order. We decline to address this argument
because it was not adequately briefed. See Angel Investors, LLC
v. Garrity, 2009 UT 40, ¶ 35, 216 P.3d 944 (“[W]e have discretion

11 No. 20080042
to not address an inadequately briefed argument.”). The
application of due process requires a thorough analysis of the
circumstances and facts particular to a case. “The requirements
of due process depend upon the specific context in which they are
applied because ‘unlike some legal rules due process is not a
technical conception with a fixed content unrelated to time,
place, and circumstances.’” V-1 Oil Co. v. Dep’t of Envtl.
Quality, 939 P.2d 1192, 1196 (Utah 1997) (quoting Cafeteria
Workers v. McElroy, 367 U.S. 886, 895 (1961)). In this case,
Kennon and Cumiskey have not identified the private interest at
stake, the risk of deprivation of that right, or the government
interest at stake. For this reason, we decline to engage in such
an analysis without the aid of argument from the parties.
CONCLUSION
¶30 We conclude that federal rule 40 C.F.R. § 52.21(r)(2)
did not apply to the Division’s review of the Power Company’s
approval order. Instead, Utah rule 307-401-11 governs the
enforcement of Utah’s PSD program, which was approved by the EPA.
This enforcement rule, as approved by the EPA, must be
interpreted to achieve the same goals as the federal PSD program.
These goals include ensuring that a new emitting source is
constructed with the most current control technology and that a
PSD permit for a new source does not tie up PSD increment limits
unnecessarily. The Board failed to interpret the rule to achieve
this goal when it approved the Division’s decision to not revoke
the Power Company’s permit and to not apply a new deadline for
commencement of completion of construction. Additionally, we
conclude that the Board’s determination that an adequate review
was performed under rule 307-401-11 was not supported by
substantial evidence when there was no written record of the
review and the parties testifying regarding the review were
unable to provide specific details of what was reviewed.
Therefore, we reverse the Board on these two holdings and remand
to the Division to conduct a proper review and set a reasonable
deadline that serves the purpose of the PSD program.
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¶31 Associate Chief Justice Durrant, Justice Wilkins,
Justice Parrish, and Justice Nehring concur in Chief Justice
Durham’s opinion.