"The issue here, as we see it, is one of semantics," said Cumiskey, president of the grass-roots group. "It might come down to challenging the constitutionality of the law itself."
This, the latest Sevier Citizens case, is the first to challenge new state environmental regulations on appealing state-approved projects regulations that set such a high bar for challenges like this that some wonder if they violate basic principles of environmental law.
The legislation, drafted by industry lawyers and championed in the 2012 Legislature by Sen. Margaret Dayton, R-Orem, sets out a new administrative process for appealing decisions made by the six divisions that make up the Utah Department of Environmental Quality, agencies that regulate air quality, water quality, radiation control, drinking water, environmental response and remediation and solid and hazardous waste.
The decisions include permits for releasing pollution because of new construction or expansion. And the new approach sends any appeal first to an administrative law judge, then to the department's executive director, who is now Amanda Smith.
The main idea, according to supporters of Dayton's SB11 and SB21, was to streamline DEQ's project-review process and save the agency money. The bills passed handily, and the appeals system was revamped, along with the five boards that used to help judge controversial permits.
Cumiskey is not new to this appeals process. Sevier Citizens has fought the plant for a decade at the county Planning Commission, in a Richfield court, before the Utah Air Quality Board and even in the state Supreme Court. A few years ago, he and Sevier Citizens' founder, the late Jim Kennon, personally argued the case before the high court justices, who overturned the power-plant permit after the retirees pointed out regulators had used a sticky note to extend its permit application, instead of performing the in-depth review required by law.
That and other high court rulings highlighted the principle that Utah's regulatory process must be reasonably accessible by ordinary people, not just corporations, government and their lawyers.
In a 2009 case that the two nonlawyer retirees personally argued before the court, Cumiskey and Kennon succeeded in getting the Division of Air Quality's pollution permit for Sevier Power invalidated by pointing out that regulators failed to do an in-depth analysis to extend the plant's license application and had improperly relied on a sticky note instead.
After that ruling, the Sevier Power Co. resubmitted its plans this time more than doubling its size and using natural gas instead of coal. Although a natural gas plant would produce less pollution, Sevier Citizens is adamant that there's no place for it in proximity to 183 homes.
"It will make people prisoners," Cumiskey said, "of their own homes and oxygen tanks."
The administrative law judge never considered arguments like that. She advised that the case be dismissed on technical grounds, because Sevier Citizens "failed to file a petition to intervene." Smith agreed in a May 28 decision.
DEQ spokeswoman Donna Spangler said the agency "places high value on public participation, and the public's ability to appeal decisions ... but they need to understand the administrative appeals process." The Sevier Citizens did not meet the requirements, and the agency cannot grant a waiver.
"Regulatory and administrative processes are complicated," she said in an email. "DEQ does and will continue to strive to make the process more transparent and user friendly."
Now Sevier Citizens will take their case to the Utah Court of Appeals, said Marcus Taylor, the self-described "small-town lawyer who doesn't want this power plant in this beautiful valley" and is helping the citizens group with its case.
He said Utah's new system for dealing with issues like this severely limits citizens who have a gripe with the agency's environmental decisions.
"It greatly restricts the ability of citizens groups to object, to fight, to block big government and big business on environmental issues," Taylor said.
"It would be in everyone's best interest for [the air-quality division] to hear our appeal less time consumed and less cost for all parties," says the June 4 letter.
Joro Walker, a Utah-based environmental attorney who's taken two cases against Sevier Power to the state Supreme Court, suggested that with a new law like this one, a resident asking for a government review shouldn't have the request slapped down on a technicality.
Instead, the government should be offering a helping hand, something like the forms provided for divorce cases or checklists furnished for driver licenses.
This sort of public access is an underlying principle of environmental law, she noted.
"The idea is not to keep people out on technical grounds," she said. "It's to give them a fair adjudication on the merits of their claims particularly people who live a half a mile from a facility."