Environment & Health Division
The Environment Section provides legal services to the Utah Department of Environmental Quality (DEQ) covering the subjects of air quality, water quality, waste management and radiation control, drinking water, and environmental remediation. We are responsible for legal matters involving refineries, incinerators, mines, and energy production facilities. These matters have the potential to have significant economic, public health, and social impact on Utah and its population.
- We assist the DEQ with the implementation of environmental regulations
- We advise and assist the DEQ with interpretation, administration, and enforcement of permits issued to regulated facilities
- We represent the DEQ in administrative hearings, adjudicative proceedings, civil litigation, and appeals before state and federal courts
- We provide legal advice to the lead natural resource damages trustee appointed by the Governor
- We provide legal support in rulemaking, record requests (subpoenas and GRAMA requests), and legislation
The DEQ has five divisions—Air Quality, Water Quality, Waste Management and Radiation Control, Drinking Water, and Environmental Response and Remediation. The Governor appoints Directors to head each Division. Each of the Division Directors reports to the DEQ’s Executive Director. We advise and represent both the Division Directors and the DEQ Executive Director’s Office.
The DEQ has four regulatory boards appointed by the Governor—the Utah Air Quality Board, the Utah Water Quality Board, the Utah Waste Management and Radiation Control Board, and the Utah Drinking Water Board. We advise each of these Boards on rulemaking, enforcement, and any other functions and duties.
Major Cases and Projects
- Defending Agency’s Decisions on Tesoro and Holly Refineries Permits
The DEQ issued permits to Tesoro and Holly refineries. Non-profit environmental groups are contesting these permits. We have represented the agency in administrative permit review proceedings and are now defending the agency’s decisions before Utah appellate courts.
- Assisting Staff with Various Aspects of State Implementation Plans (SIPs)
The Clean Air Act directs the states to develop SIPs to reduce air pollution. Each plan addresses certain pollutant. (For more information on state SIPs visit DEQ’s website.) Utah has several of these plans at different stages of development, including a SIP addressing regional haze—air pollution that reduces visibility in national parks and scenic areas. Since the Environmental Protection Agency (EPA) makes the final decision on whether a SIP complies with the Clean Air Act, Utah works closely with the EPA in developing its SIPs. We interact with the EPA’s regional counsel and staff to coordinate and facilitate promulgation, revision, and implementation of the state SIPs.
Stericycle is a medical waste incinerator currently located in North Salt Lake. Stericycle violated its permit terms, resulting in DEQ’s investigation of the company. DEQ settled with Stericycle, imposing a hefty $2.3 million fine on the business and securing a commitment to relocate Tooele County within a certain time frame. We assisted DEQ during the investigation and settlement negotiations. We continue to advise DEQ with respect to the settlement agreement to ensure Stericycle’s full compliance with its terms, as well as processing of the new permit for Tooele County location.
We defend administrative and civil challenges to ground water discharge permits issued by the Division of Water Quality (DWQ). An area of particular public interest surrounds the DWQ’s issuance of ground water discharge permits relating to oil production operations in the oil-rich Uintah Basin.
Waste Management and Radiation Control
- EnergySolutions’ License to Accept and Dispose of Large Quantities of Depleted Uranium
EnergySolutions, an international nuclear service company headquartered in Salt Lake City, requested a license amendment to allow it to accept and dispose of large quantities of depleted uranium. The Nuclear Regulatory Commission recommended site-specific performance assessments for the project. EnergySolutions prepared such performance assessment and submitted it to the DEQ for evaluation. The DEQ and its independent contractor, S. Cohen & Associates, prepared and issued the Safety Evaluation Report, containing their assessment of whether EnergySolutions’ project meets federal and state regulatory performance criteria for depleted uranium disposal sites. The DEQ’s evaluation has identified several unresolved topics and concerns. EnergySolutions is currently addressing these issues. We advise and assist the agency with this important project. For more information, visit DEQ’s website page on Depleted Uranium.
- Rewriting Hazardous Waste Administrative Rules
We are assisting the agency with revising and amending hazardous waste administrative rules to match the federal rules for ease of reference.
- Challenge to License Storage of High Level Nuclear Waste in Utah
Since 1997, we have provided legal support for the Governor’s position to the Private Fuel Storage, L.L.C., (PFS) proposal to store 44,000 tons of commercial high level nuclear waste on the Skull Valley Band of Goshute Reservation. Currently, Utah has challenged PFS’s license issued by the U.S. Nuclear Regulatory Agency before the U.S. Appeals Court, District of Columbia Circuit.
Environmental Response and Remediation
We advise and represent the agency in negotiating agreements with EPA, other federal agencies, and responsible parties concerning the assessment and cleanup of sites under CERCLA. We advise the DEQ on legal mechanisms to control the risk at sites with contamination left in place after clean up, such as environmental covenants or local ordinances coordinated with local authorities. We advise agency on the voluntary cleanup program and enforceable written assurances. We advise agency on the certification of professionals who clean up illegal drug operation sites.
We advise and represent the agency in regulating petroleum storage tanks and coverage of releases by the Petroleum Storage Tank Trust Fund. We assist the agency in recovering costs from responsible parties. We have been involved in protecting the Petroleum Storage Tank Trust Fund providing representation to the agency in insurance litigation against major oil marketers. We have worked closely with a local and national litigation team in arriving at some significant settlements.
We work with the Investigations Division to prosecute environmental crimes on a state and federal level. This team works in cooperation with the U.S. Attorney’s Office and the EPA’s Criminal Investigations Division. Environmental crimes often involve hazardous wastes and other toxic chemicals, which pose extreme risks to the public and harm to the environment.
In 2015, we began developing a task force to involve county attorneys into investigating and prosecuting environmental crimes. This initiative will facilitate sharing of the information and resources between the Attorney General’s Office and the county attorneys’ offices. We will be negotiating a more formal memorandum of understanding outlining possible synergies and relationships with local entities. We are also looking into the possibility of working with local jurisdictions in compliance matters.
The Health Section represents the Utah Department of Health in Medicaid hearings, licensing, and other administrative proceedings. Attorneys employed in this Section
- advise and assist the Department with promulgating its rules and regulations
- review contracts and agreements with local health departments and other agencies
- coordinate health care through Medicaid Care Organizations
- assist with HIPAA/HITECH records (privacy & security) compliance
- conduct formal and informal hearings regarding managed care and judicial appeals of administrative decisions
Recent high profile matters include (1)representing the Bureau of Vital Records in litigation by same sex couples related to marriage and birth certificates (Roe v. Patton) and adoption by same sex couples; (2) providing information to a legislative interim committee considering issues associated with the use of medical marijuana.