File No. 33779
This rule was published in the July 15, 2010, issue (Vol. 2010, No. 14) of the Utah State Bulletin.
Environmental Quality, Environmental Response and Remediation
Illegal Drug Operations Site Reporting and Decontamination Act, Contesting an Initial Order or Notice
Notice of Proposed Rule
DAR File No.: 33779
Filed: 06/22/2010 10:22:12 AM
Purpose of the rule or reason for the change:
This rule is being repealed because it is no longer necessary. The Department of Environmental Quality is currently developing comprehensive adjudicative rules that will apply to all of the Department's boards. Greater uniformity in procedures is desired for administrative convenience, particularly since the Uniform Environmental Quality Code was recently amended to require the appointment of an administrative law judge for board adjudicative proceedings. If an adjudicative proceeding arises in the interim, the provisions in the Utah Administrative Procedures Act (UAPA) will be applied.
Summary of the rule or change:
The provisions of Rule R311-501 address the process to contest a decision by the Executive Secretary to deny an application submitted under Title 19, Chapter 6, Illegal Drug Operations Site Reporting and Decontamination Act, or revoke a Certificate issued under Section R311-500-6. The procedures to contest a decision by the Executive Secretary will be updated in new rules to be promulgated in the future. This rule is repealed in its entirety.
State statutory or constitutional authorization for this rule:
- Section 19-6-901 et seq.
Anticipated cost or savings to:
the state budget:
There is no anticipated fiscal impact to the state budget for repealing this rule.
There is no requirement for local government personnel to certify a Decontamination Specialist. There is no anticipated fiscal impact to local government by removing the rule.
There is no anticipated fiscal impact on small business from repealing this rule.
persons other than small businesses, businesses, or local governmental entities:
There is no anticipated fiscal impact on persons other than small businesses, businesses, or local government entities as a result of repealing this rule.
Compliance costs for affected persons:
There will be no change in compliance costs for affected persons from repealing this rule. A Certified Decontamination Specialist or individual applying for certification may be affected by the subject rule if they need to contest a decision to deny an application or revoke a Certificate previously issued by the Executive Secretary. However, the procedures outlined in UAPA and in the Environmental Quality Code will be followed until new rules are drafted.
Comments by the department head on the fiscal impact the rule may have on businesses:
Rule R311-501 clarified the due process afforded an individual contesting a decision by the Executive Secretary to deny an application submitted under Title 19, Chapter 6, or revoke a Certificate issued under Section R311-500-6. It is believed that the fiscal impact to individuals and businesses from repealing this rule will be limited. Until new rules are adopted, Decontamination Specialists will be afforded due process by following the provisions of UAPA and the Environmental Quality Code. This together with current Rule R311-500 provide an important element of the Decontamination Specialist Certification Program and in conjunction with cleanup rules established by the Department of Health will provide a fully functioning drug lab cleanup program in Utah.
Amanda Smith, Executive Director
The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:Environmental Quality
Environmental Response and Remediation
195 N 1950 W
SALT LAKE CITY, UT 84116-3085
Direct questions regarding this rule to:
- Bill Rees at the above address, by phone at 801-536-4167, by FAX at 801-536-4242, or by Internet E-mail at firstname.lastname@example.org
- Karen Keller at the above address, by phone at 801-536-4107, by FAX at 801-536-4242, or by Internet E-mail at email@example.com
Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:
This rule may become effective on:
Amanda Smith, Executive Director
R311. Environmental Quality, Environmental Response and Remediation.
Illegal Drug Operations Site Reporting and Decontamination
Act, Contesting an Initial Order or Notice.
R311-501-1. Objective, Scope and Authority. (a) Objective. The rules outline a process to contest a
decision by the Executive Secretary to deny an application
submitted under Title 19 Chapter 6, Illegal Drug Operations Site
Reporting and Decontamination Act, or revoke a Certificate issued
(b) Scope. These rules apply to proceedings under Title
19, Chapter 6, Illegal Drug Operations Site Reporting and
Decontamination Act, Subsection 906(2) (Decontamination
Specialist Certification and Revocation).
(c) Authority. Section 19-6-906 directs the Department of
Environmental Quality Solid and Hazardous Waste Control Board, in
consultation with the Department of Health and local Health
Departments, to make rules to establish within the Division of
Environmental Response and Remediation:
(1) certification standards for any private person, firm,
or entity involved in the decontamination of contaminated
(2) a process for revoking the certification of a
Decontamination Specialist who fails to maintain the
R311-501-2. Orders, Notices and Other Decisions by the
Executive Secretary. (a) The initial order and notice described in R311-500-9
shall be issued by the Executive Secretary.
(b) An initial order or notice shall become final in 30
days unless contested as described in R311-501-3. Failure to
contest an initial order or notice waives any right of
administrative review or judicial appeal.
R311-501-3. Contesting an Initial Order or Notice Issued by
the Executive Secretary. (a) The validity of an initial order or notice described
in R311-500-9 may be contested by filing a written Request for
Agency Action with the Board:
Solid and Hazardous Waste Control Board
Division of Solid and Hazardous Waste
288 North 1460 West
PO Box 144880
Salt Lake City, Utah 84114-4880.
(b) Any such request is governed by and shall comply with
the requirements of Section 63-46b-3(3) of UAPA, and shall be
received for filing within 30 days of the issuance of the
Executive Secretary's order or notice.
(c) Notice of the time and place for a hearing shall be
provided in the response to a request for Agency Action, or shall
be provided promptly after the hearing is scheduled.
(d) A Request for Agency Action, and all subsequent
proceedings acting on that request, are governed by UAPA
R311-501-4. Parties and Intervention. (a) The following persons are Parties to a proceeding
governed by this Rule:
(1) The person to whom an initial order or notice of
violation is directed, such as a person who submitted a permit
application that was approved or disapproved by order of the
(2) The Executive Secretary; and
(3) All persons whose legal rights or interests are
substantially affected by the proceeding, who have standing to
participate in the proceeding, and to whom intervention rights
have been granted under R311-501-4 (d).
(b) In a proceeding requested by the person to whom an
initial order or notice of violation is directed, that person
shall be the Petitioner and the Executive Secretary shall be the
(c) In a proceeding requested by a person requesting
intervention, the Intervenor shall be the Petitioner, provided
that Intervention is granted, and the Executive Secretary and the
person to whom an initial order or notice of violation is
directed shall be the Respondents.
(d) A non-party may request intervention under Section
63-46b-9 of UAPA for the purpose of filing a Request for Agency
Action, and may simultaneously file a Request for Agency Action.
Requests for Intervention and Agency Action must be received by
the Board for filing as provided in R311-501-3.2 within 30 days
of the date of the challenged order or notice.
(e) Any Party may, within 20 days or such earlier time as
established by the Presiding Officer(s), respond to a Request for
Intervention. The Chair of the Board may act as Presiding Officer
for purposes of this paragraph.
R311-501-5. Conduct of Proceedings. (a) The Board is the "agency head" as that term
is used in UAPA. The Board is also the "presiding
officer," as that term is used in UAPA, except:
(1) The Chair of the Board shall be considered the
Presiding Officer to the extent that these rules allow;
(2) The Board may by order appoint a Presiding Officer to
preside over all or a portion of the proceedings.
(b) The Chair of the Board may delegate his/her authority
as specified in this Rule to another Board member or Department
(c) Unless otherwise explicitly provided in an order of
appointment, any appointment of a Presiding Officer or Presiding
Officers shall be for the purpose of conducting all aspects of an
adjudicative proceeding, except issuance of the final order. See
also R311-501-7 regarding orders of Presiding Officers.
(d) Proceedings pursuant to a Request for Agency Action
shall be conducted formally if the Request for Agency Action is
made to contest the validity of the following:
(1) An order or notice revoking a certification;
(2) A notice denying an application; or
(3) A consent order.
(e) The Board may convert proceedings, which are
designated to be formal to informal, and proceedings, which are
designated as informal to formal, if conversion is in the public
interest and rights of all parties are not unfairly prejudiced.
See Section 63-46b-4(3) of UAPA.
(f) The Presiding Officer(s) may direct the Parties to
appear at a specified time and place for a pre- hearing
conference(s) for the purposes of clarifying the issues,
simplifying the evidence, facilitating discovery, expediting
proceedings, or encouraging settlement.
(g) Unless otherwise directed by the Presiding
Officer(s), parties to the proceeding may submit a pre-hearing
brief at least five business days before the hearing.
Post-hearing briefs will be allowed only as authorized by the
Board. Parties are not required to submit pre-hearing or
post-hearing briefs unless directed to do so by the Presiding
Officer(s). Pre-hearing and post-hearing briefs shall not exceed
15 pages unless otherwise provided by the Presiding Officer for
(1) Response briefs may not be filed unless permitted by
the Presiding Officer(s).
(h) Parties to a proceeding are encouraged to prepare a
joint proposed schedule addressing the matters specified in
subparagraph (i). If the parties cannot agree on a joint proposed
schedule, the Presiding Officer(s) may consider proposals by any
(i) The Presiding Officer(s) shall establish schedules
for discovery and other pre-hearing proceedings, for the hearing,
and for any post-hearing proceedings.
(j) Except as otherwise provided by statute, the
Presiding Officer(s) may approve extensions of time limits
established by this rule, and may extend time limits adopted in
schedules established under subparagraph (i). The Presiding
Officer(s) may also postpone hearings. The Chair of the Board may
act as Presiding Officer for purposes of this paragraph.
(k) Time shall be computed as provided in Rule 6(a) of
the Utah Rules of Civil Procedure. No additional time shall be
allowed for service by mail.
(l) All motions shall be filed a minimum of ten days
before a scheduled hearing, unless otherwise allowed or required
by the Presiding Officer(s). A memorandum in opposition to a
motion may be filed within eight days of the filing of the
motion, or at least one day before any scheduled hearing,
whichever is earlier. Memoranda in support of or in opposition to
motions may not exceed 15 pages unless otherwise provided by the
(m) The original of any motion, brief, request for
intervention, or other submission shall be filed with the
Executive Secretary. In addition, the submitter shall provide a
copy to each Presiding Officer and, through counsel of record if
applicable, to each party.
R311-501-6. Hearings. (a) The Presiding Officer(s) shall govern the conduct of
a hearing, and may establish reasonable limits on the length of
witness testimony and cross-examination, and on the length of
(b) Unless otherwise directed by the Presiding
Officer(s), the Petitioner shall present its case first, followed
by the Executive Secretary, unless the Executive Secretary is the
petitioner, and any other Parties. Rebuttal, if any, shall follow
the same order.
(c) If a party desires to employ a court reporter to make
a record of the hearing, the original transcript of the hearing
shall be filed with the presiding officer at no cost to the
agency to enable the Presiding Officer to refer to the transcript
in drafting the proposed order for the Board.
R311-501-7. Orders. (a) Unless otherwise directed by the Presiding
Officer(s), each party may provide proposed orders for the
Presiding Officer(s) within three days of the conclusion of the
(b) A Presiding Officer or Presiding Officers appointed
for the purpose of conducting all aspects of an adjudicative
proceeding, except issuance of the final order, shall prepare a
draft order. A copy of the draft order shall be provided to all
(c) Any Party may, within 10 days of the date the draft
order is mailed, delivered, or published, comment on the draft
order. Such comments shall be limited to 15 pages, and shall cite
to specific parts of the record, which support the
(d) The Board shall review the draft order, comments on
the draft order, and those specific parts of the record cited by
the Parties in any comments. The Board shall then determine
whether to accept or modify the draft order, to remand the matter
to an appointed Presiding Officer or Presiding Officers for
further proceedings, or to act as Presiding Officers for further
(e) The Board may modify this procedure with notice to
(f) An order shall include the information required by
Sections 63-46b-10 or 63-46b-5(1)(i) of UAPA.
R311-501-8. Stays of Orders. (a) A Party seeking a Stay of the Order of the Executive
Secretary shall file a motion with the Presiding Officer(s). A
Stay, if granted, would suspend the effect of the challenged
(b) The Presiding Officer(s) may order a stay of the
Executive Secretary's Order if the Party seeking the Stay
(1) The Party seeking the Stay will suffer irreparable
harm unless the stay issues;
(2) The threatened injury to the Party seeking the Stay
outweighs whatever damage the proposed stay is likely to cause
the Party restrained or enjoined;
(3) The Stay, if issued, would not be adverse to the
public interest; and
(4) There is substantial likelihood that the Party
seeking the Stay will prevail on the merits of the underlying
claim, or the case presents serious issues on the merits which
should be the subject of further evaluation by the Presiding
(c) The Board as Presiding Officer may grant a stay of
its order (or the Order of its appointed Presiding Officer)
during the pendency of judicial review if the standards of
R311-501-8(b) are met.
R311-501-9. Reconsideration. (a) No agency review under Section 63-46b-12 of UAPA is
available. A Party may request reconsideration of an order of the
Presiding Officer(s) as provided in Section 63-46b-13 of
R311-501-10. Disqualification of Presiding Officer(s). (a) A member of the Board or other Presiding Officer
shall disqualify him/herself from performing the functions of the
Presiding Officer regarding any matter in which:
(1) He/she, or his/her spouse, or a person within the
third degree of relationship to either of them, or the spouse of
(A) Is a party to the proceeding, or an officer,
director, or trustee of a Party;
(B) Has acted as an attorney in the proceeding or served
as an attorney for, or otherwise represented a Party concerning
the matter in controversy;
(C) Knows that he/she has a financial interest, either
individually or as a fiduciary, in the subject matter in
controversy or in a Party to the proceeding;
(D) Knows that he/she has any other interest that could
be substantially affected by the outcome of the proceeding;
(E) Is likely to be a material witness in the
(b) The Presiding Officer is subject to disqualification
under principles of due process and administrative law.
(c) A motion for disqualification shall be made first to
the Presiding Officer or Presiding Officers. If the Presiding
Officer is or Presiding Officers are appointed, any determination
of the Presiding Officer or Presiding Officers upon a motion for
disqualification may be appealed to the Board.
(a) Nothing in these rules shall prevent any person from
requesting an opportunity to address the Board as a member of the
public, rather than as a party. An opportunity to address the
Board shall be granted at the discretion of the Board. However,
addressing the Board in this manner does not constitute a request
for agency action under R311-501-3.
(a) Requests for records under the Utah Government Record
Access and Management Act, Title 63, Chapter 2, Utah Code Ann.,
are not governed by R311-501. See R305-1, U.A.C.
KEY: meth lab certification revocation
Date of Enactment or Last Substantive Amendment: October 14,
Authorizing, and Implemented or Interpreted Law: 19-6-901 et
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For questions regarding the content or application of this rule, please contact Bill Rees at the above address, by phone at 801-536-4167, by FAX at 801-536-4242, or by Internet E-mail at firstname.lastname@example.org; Karen Keller at the above address, by phone at 801-536-4107, by FAX at 801-536-4242, or by Internet E-mail at email@example.com.