Ralph Smith Co. v. Air Quality Bd.

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Ralph Smith Company, Inc.,
Petitioner,

v.

Utah Air Quality Board,
Respondent.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990840-CA

F I L E D
July 7, 2000
  2000 UT App 212 -----

Original Proceeding in this Court

Attorneys:
Randy B. Birch, Heber City, for Petitioner
Jan Graham and Melissa M. Hubbell, Salt Lake City, for Respondent

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Before Judges Bench, Billings, and Davis.

DAVIS, Judge:

Petitioner raises numerous issues for our review. First, Petitioner argues that the Board's finding that it was a Ralph Smith truck is not supported by substantial evidence.

We review the Board's findings of fact in accordance with the Utah Administrative Procedure Act and will reverse only if the findings made by an administrative agency are "not supported by substantial evidence when viewed in light of the whole record before the court." "'"Substantial evidence" is that quantum and quality of relevant evidence that is adequate to convince a reasonable mind to support a conclusion.'"

V-1 Oil Co. v. Division of Envtl. Response & Remediation, Dep't of Envtl. Quality, 962 P.2d 93, 94 (Utah Ct. App. 1998) (citations omitted).

Two Division of Air Quality (DAQ) experts testified to the truck's identification and petitioner offered no evidence disputing the truck's identification. In fact, counsel for petitioner explained to the DAQ witness that the reason counsel was questioning him regarding the truck's identity was in an attempt to find the driver of the truck, not in an attempt to discredit the testimony that the truck belonged to Ralph Smith.

Based on the evidence before the Board, we hold that there was substantial evidence supporting the finding that the truck belonged to petitioner.

Second, petitioner argues that "[t]he Utah Air Quality Board abused its discretion in upholding a citation for fugitive dust based on a single, inadequate reading." Petitioner maintains that because the DAQ environmental scientists failed to take six opacity readings for the Ralph Smith truck, they failed to comply with the DAQ rules. However, as respondent points out, petitioner was cited for failing to minimize fugitive dust under Rule 307-12-3(3.B)(1) of the Utah Administrative Code, not for violating the opacity standards for fugitive emissions under Rule 307-12-2 of the Utah Administrative Code. Because opacity readings are not required under Rule 307-12-3(3.B)(1), that evidence was relevant only to support the DAQ's claim that petitioner failed to minimize fugitive dust. Accordingly, this argument fails.

Third, petitioner argues that the Board incorrectly applied Rule 307-12-3 because a sand and gravel pit is properly characterized as a mining operation making Rule 307-12-5 the correct rule. Neither sand and gravel pits nor mining operations are defined under the rules for environmental quality. See Utah Admin. Code R307-1 to -19 (1996)(amended 2000). Thus, the Board argues that based on the borrowed definition of mining operations under Utah Code Ann. § 40-8-4(8) (1998), sand and gravel pits are specifically excluded from the definition of mining operations, and Rule 307-12-3 was correctly applied. Petitioner responds by arguing that the definition found in section 40-8-4(8) applies only to that chapter of the Code, and not to the DAQ rules. Petitioner's argument is contradictory. It would like the site to be characterized as a mining operation for the limited purpose of the DAQ rules, but argues that the statute regulating mining operations, albeit for different purposes, is not relevant.

"When reviewing an agency's application of its own rules, we will not disturb its interpretation or application of its rules 'unless its determination exceeds the bounds of reasonableness and rationality.'" McBride v. Motor Vehicle Div. of Utah State Tax Comm'n, 1999 UT 9,¶12, 977 P.2d 467 (quoting Brown & RootIndus. Serv. v. Industrial Comm'n, 947 P.2d 671, 677 (Utah 1997) (citations omitted)). We do not believe that it was unreasonable or irrational for the Board to borrow the definition from the mining statute to determine whether the site owner in this case was a mining operation. Accordingly, we conclude that the Board correctly applied Rule 307-12-3.

Fourth, petitioner argues that only site owners or operators are liable under Rule 307-12-3. Petitioner's interpretation is simply not contemplated by the rule. Rule 307-12-3(3.B)(1) provides that "[a]ny person engaging in . . . [the] movement of trucks . . . over . . . access haul roads shall take steps to minimize fugitive dust from such activities." Utah Admin. Code R307-12-3 (1996) (emphasis added). By the rule's plain language, the liability for failing to minimize fugitive dust is not limited to site owners or operators.

Last, petitioner argues that Rule 307-12-3 is unconstitutionally vague. Petitioner failed to raise this argument before either the DAQ hearing officer or the Board. In fact, at the initial hearing, counsel for petitioner was concerned that the rule may be overbroad, but did not argue that it was vague. We therefore decline to reach this issue. SeeState v. Webb, 790 P.2d 65, 77 (Utah Ct. App. 1990) ("As the Utah appellate courts have reiterated many times, we generally will not consider an issue, even a constitutional one, which the appellant raises on appeal for the first time.") (citation omitted).

Accordingly, we affirm the Board's Order upholding the Notice of Violation and Order for Compliance.
 
 
 
 
 

______________________________
James Z. Davis, Judge -----

WE CONCUR:
 
 
 

______________________________
Russell W. Bench, Judge
 
 
 
 
 

______________________________
Judith M. Billings, Judge