File No. 34696
This rule was published in the May 1, 2011, issue (Vol. 2011, No. 9) of the Utah State Bulletin.
Environmental Quality, Drinking Water
Rule R309-115
Administrative Procedures
Notice of Proposed Rule
(Repeal and Reenact)
DAR File No.: 34696
Filed: 04/14/2011 04:26:50 PM
RULE ANALYSIS
Purpose of the rule or reason for the change:
See the companion rulemaking proposing new administrative procedures rule at Rule R305-6 (DAR No. 34472), published in the March 15, 2011, Bulletin on pg. 53. The Department of Environmental Quality (DEQ) is updating its rule governing administrative procedures, and it is simultaneously consolidating those procedures into one rule. Updating is needed for several reasons. A 2009 amendment to Section 19-1-301 required the Department to use administrative law judges for most administrative proceedings. Many of the updates are needed to incorporate that statutory change. Updates are also needed to make clarifications and improvements in administrative procedures, and changes based on the Department's accumulated experience with administrative procedures. The purpose of specifying administrative procedures generally is to ensure that all participants will have information about how administrative proceedings will be conducted, and to ensure that the proceedings are conducted fairly and efficiently.
Summary of the rule or change:
DEQ is proposing to consolidate rules currently found in Rule R309-115 (Drinking Water) and several other places in DEQ's rules. In addition, the new Rule R305-6 makes many changes to Rule R309-115 and the other currently applicable rules, including changes to encourage informal discovery and to limit discovery to appropriate subjects (proposed Section R305-6-105); changes to require that for decisions to be made by an executive secretary of a board, comments must be provided to the executive secretary in order to preserve a commenter's right to challenge the executive secretary's decision (proposed Section R305-6-209); and changes that specify situations in which declaratory actions should not be considered (proposed Section R305-6-302).
State statutory or constitutional authorization for this rule:
- Section 19-1-301
- Sections 63G-4-201 through 63G-4-205
- Section 63G-4-102
- Section 63G-4-503
Anticipated cost or savings to:
the state budget:
The changes to administrative proceedings from those currently being used are not expected to be substantial enough to have an impact on the budget of any participant. Although some changes have been proposed to improve efficiency, e.g., new requirements regarding discovery in Section R305-6-209, it is also anticipated that efficiencies will be offset by a steadily increasing caseload.
local governments:
There is no direct impact on local government, except that they may be regulated entities that would be governed by the rule. The changes to administrative proceedings from those currently being used are not expected to be substantial enough to have an impact on the budget of any participant. Although some changes have been proposed to improve efficiency, e.g., new requirements regarding discovery in Section R305-6-209, it would be speculative to suggest that the impact of any improvement would be measurable savings. It is also anticipated that efficiencies will be offset by a steadily increasing caseload.
small businesses:
The changes to administrative proceedings from those currently being used are not expected to be substantial enough to have an impact on the budget of any participant. Although some changes have been proposed to improve efficiency, e.g., new requirements regarding discovery in Section R305-6-209, it would be speculative to suggest that the impact of any improvement would be measurable savings for any specific proceeding.
persons other than small businesses, businesses, or local governmental entities:
Individuals, partnerships, and other entities can be regulated entities that will be governed by the new rule. The changes to administrative proceedings from those currently being used are not expected to be substantial enough to have an impact on the budget of any participant. Although some changes have been proposed to improve efficiency, e.g., new requirements regarding discovery in Section R305-6-209, it would be speculative to suggest that the impact of any improvement would be measurable savings for any specific proceeding.
Compliance costs for affected persons:
The changes to administrative proceedings from those currently being used are not expected to be substantial enough to have an impact on the budget of any participant. Although some changes have been proposed to improve efficiency, e.g., new requirements regarding discovery in Section R305-6-209, it would be speculative to suggest that the impact of any improvement would be measurable savings for any specific proceeding.
Comments by the department head on the fiscal impact the rule may have on businesses:
The changes to administrative proceedings from those currently being used are not expected to be substantial enough to have an impact on the budget of any participant. Although some changes have been proposed to improve efficiency, e.g., new requirements regarding discovery in Section R305-6-209, it would be speculative to suggest that the impact of any improvement would be measurable savings for any specific proceeding.
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 QualityDrinking Water
195 N 1950 W
SALT LAKE CITY, UT 84116-3085
Direct questions regarding this rule to:
- Laura Lockhart at the above address, by phone at 801-366-0283, by FAX at 801-366-0292, or by Internet E-mail at [email protected]
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:
05/31/2011
This rule may become effective on:
07/01/2011
Authorized by:
Amanda Smith, Executive Director
RULE TEXT
R309. Environmental Quality, Drinking Water.
R309-115. Administrative Procedures.
R309-115-1. Administrative Procedures.
Administrative proceedings under Utah Safe Drinking Water Act are governed by Rule R305-6.
[R309-115-1. Scope of Rule.
(1) This rule R309-115 sets out procedures for conducting adjudicative proceedings under Title 19, Chapter 4, Utah Safe
Drinking Water Act, and in accordance with 63G-3 of the same, known as the Administrative Rulemaking Act.
(2) The executive secretary, or his delegatee as authorized, may issue initial orders or notices of violation as authorized by the Board. Following the issuance of an initial order or notice of violation under Title 19, Chapter 4, the recipient, or in some situations an intervenor, may contest that order or notice in a proceeding before the board or before a presiding officer appointed by the board.
(3) Issuance of initial orders and notices of violation are not governed by the Utah Administrative Procedures Act as
provided under 63G-3 and are not governed by sections R309-115-3
through R309-115-14 of this Rule. Initial orders and notices of
violation are further described in R309-115-2(1).
(4) Proceedings to contest an initial order or notice of
violation are governed by the Utah Administrative Procedures Act
and by this rule R309-115.
(5) The Utah Administrative Procedures Act and this rule
R309-115 also govern any other formal adjudicative proceeding
before the Drinking Water Board.
R309-115-2. Initial Proceedings.
(1) Initial Proceedings Exempt from Utah Administrative
Procedures Act. Initial orders and notices of violation include,
but are not limited to, initial proceedings regarding:
(a) approval, denial, termination, modification,
revocation, reissuance or renewal of permits, plans, or approval
orders;
(b) notices of violation and orders associated with
notices of violation;
(c) orders to comply and orders to cease and
desist;
(d) requests for variances, exemptions, and other
approvals;
(e) certification of water supply operators under
R309-300 and backflow technicians under R309-302;
(f) ratings of water systems under R309-400-4;
and
(g) assessment of fees except as provided in
R309-115-14(7).
(2) Effect of Initial Orders and Notices of
Violation.
(a) Unless otherwise stated, all initial orders or
notices of violation are effective upon issuance. All initial
orders or notices of violation shall become final if not
contested within 30 days after the date issued.
(b) The date of issuance of an initial order or notice of
violation is the date the initial order or notice of violation is
mailed.
(c) Failure to timely contest an initial order or notice
of violation waives any right of administrative contest,
reconsideration, review, or judicial appeal.
R309-115-3. Contesting an Initial Order or Notice of
Violation.
(1) Procedure. Initial orders and notices of violation,
as described in R309-115-2(1), may be contested by filing a
written Request for Agency Action to the Executive Secretary,
Drinking Water Board, Division of Drinking Water, PO Box 144830,
Salt Lake City, Utah 84114-4830.
(2) Content Required and Deadline for Request. Any such
request is governed by and shall comply with the requirements of
63G-3. If a request for agency action is made by a person other
than the recipient of an order or notice of violation, the
request for agency action shall also specify in writing
sufficient facts to allow the board to determine whether the
person has standing under R309-115-6(3) to bring the requested
action.
(3) A request for agency action made to contest an
initial order or notice of violation shall, to be timely, be
received for filing within 30 days of the issuance of the initial
order or notice of violation.
(4) Stipulation for Extending Time to File Request. The
executive secretary and the recipient of an initial order or
notice of violation may stipulate to an extension of time for
filing the request, or any part thereof.
R309-115-4. Designation of Proceedings as Formal or
Informal.
(1) Contest of an initial order or notice of violation
resulting from proceedings described in R309-115-2(1) shall be
conducted as a formal proceeding.
(2) The board in accordance with 63G-3 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.
R309-115-5. Notice of and Response to Request for Agency
Action.
(1) The presiding officer shall promptly review a request
for agency action and shall issue a Notice of Request for Agency
Action in accordance with 63G-3. If further proceedings are
required and the matter is not set for hearing at the time the
Notice is issued, notice of the time and place for a hearing
shall be provided promptly after the hearing is
scheduled.
(2) The Notice shall include a designation of parties
under R309-115-6(3), and shall notify respondents that any
response to the Request for Agency Action shall be due within 30
days of the day the Notice is mailed, in accordance with
63G-3.
R309-115-6. Parties and Intervention.
(1) Determination of a Party. The following persons are
parties to an adjudicative proceeding:
(a) The person to whom an initial order or notice of
violation is directed, such as a person who submitted a permit
application or approval request that was approved or disapproved
by initial order of the executive secretary;
(b) The executive secretary of the board;
(c) All persons to whom the board has granted
intervention under R309-115-6(2); and
(d) Any other person with standing who brings a Request
for Agency Action as authorized by the Utah Administrative
Procedures Act and these rules.
(2) Intervention.
(a) A Petition to Intervene shall meet the requirements
of 63G-3. Except as provided in (2)(c), the timeliness of a
Petition to Intervene shall be determined by the presiding
officer under the facts and circumstances of each case.
(b) Any response to a Petition to Intervene shall be
filed within 20 days of the date the Petition was filed, except
as provided in R309-115-6(2)(c).
(c) A person seeking to intervene in a proceeding for
which agency action has not been initiated under 63G-3 may file a
Request for Agency Action at the same time the person files a
Petition for Intervention. Any such Request for Agency Action and
Petition to Intervene must be received by the board for filing
within 30 days of the issuance of the initial order or notice of
violation being challenged. The time for filing a Request for
Agency Action and Petition to Intervene may be extended by
stipulation of the executive secretary, the person subject to an
initial order or notice of violation, and the potential
intervenor.
(d) Any response to a Petition to Intervene that is filed
at the same time as a Request for Agency Action shall be filed on
or before the day the response to the Request for Agency Action
is due.
(e) A Petition to Intervene shall be granted if the
requirements of 63G-3 are met.
(3) Standing. No person may initiate or intervene in an
agency action unless that person has standing. Standing shall be
evaluated using applicable Utah case law.
(4) Designation of Parties. The presiding officer shall
designate each party as a petitioner or respondent.
(5) Amicus Curiae (Friend of the Court). A person may be
permitted by the presiding officer to enter an appearance as
amicus curiae (friend of the court), subject to conditions
established by the presiding officer.
R309-115-7. Conduct of Proceedings.
(1) Role of Board.
(a) The board is the "agency head" as that term
is used in Title 63G, Chapter 3. The board is also the
"presiding officer," as that term is used in Title 63G,
Chapter 3 except:
(i) The chair of the board shall be considered the
presiding officer to the extent that these rules allow;
and
(ii) The board may appoint one or more presiding officers
to preside over all or a portion of the proceedings.
(b) The chair of the board may delegate the chair's
authority as specified in this rule to another board
member.
(2) Appointed Presiding Officers. Unless otherwise
explicitly provided by written order, any appointment of a
presiding officer shall be for the purpose of conducting all
aspects of an adjudicative proceeding, except rulings on
intervention, stays of orders, dispositive motions, and issuance
of the final order. As used in this rule, the term
"presiding officer" shall mean "presiding
officers" if more than one presiding officer is appointed by
the board.
(3) Board Counsel. The Presiding Officer may request that
Board Counsel provide legal advice regarding legal procedures,
pending motions, evidentiary matters and other legal
issues.
(4) Pre-hearing Conferences. The presiding officer may
direct the parties to appear at a specified time and place for
pre-hearing conferences for the purposes of establishing
schedules, clarifying the issues, simplifying the evidence,
facilitating discovery, expediting proceedings, encouraging
settlement, or giving the parties notice of the presiding
officer's availability to parties.
(5) Pre-hearing Documents.
(a) At least 15 business days before a scheduled hearing,
the executive secretary shall compile a draft list of prehearing
documents as described in (b), and shall provide the list to all
other parties. Each party may propose to add documents to or
delete document from the list. At least seven business days
before a scheduled hearing, the executive secretary shall issue a
final prehearing document list, which shall include only those
documents upon which all parties agree unless otherwise ordered
by the presiding officer. All documents on the final prehearing
document list shall be made available to the presiding officer
prior to the hearing, and shall be deemed to be
authenticated.
(b) The prehearing document list shall ordinarily include
any pertinent permit application, any pertinent inspection
report, any pertinent draft document that was released for public
comment, any pertinent public comments received, any pertinent
initial order or notice of violation, the request for or notice
of agency action, and any responsive pleading. The list is not
intended to be an exhaustive list of every document relevant to
the proceeding, however any document may be included upon the
agreement of all parties.
(6) Briefs.
(a) Unless otherwise directed by the presiding officer,
parties to the proceeding shall submit a pre-hearing brief, which
shall include a proposed order meeting the requirements of 63G-3,
at least fifteen business days before the hearing. The prehearing
brief shall be limited to 20 pages exclusive of the proposed
order.
(b) Post-hearing briefs and responsive briefs will be
allowed only as authorized by the presiding officer.
(7) Schedules.
(a) The parties are encouraged to prepare a joint
proposed schedule for discovery, for other pre-hearing
proceedings, for the hearing, and for any post-hearing
proceedings. If the parties cannot agree on a joint proposed
schedule, any party may submit a proposed schedule to the
presiding officer for consideration.
(b) The presiding officer shall establish a schedule for
the matters described in (a) above.
(8) Motions. All motions shall be filed a minimum of 12
days before a scheduled hearing, unless otherwise directed by the
presiding officer. A memorandum in opposition to a motion may be
filed within 10 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 presiding officer.
(9) Filing and Copies of Submissions. The original of any
motion, brief, petition for intervention, or other submission
shall be filed with the executive secretary. In addition, the
submitter shall provide a copy to each presiding officer, to each
party of record, and to all persons who have petitioned for
intervention, but for whom intervention has been neither granted
nor denied.
R309-115-8. Hearings.
The presiding officer shall control the conduct of a
hearing, and may establish reasonable limits on the length of
witness testimony, cross-examination, oral arguments or opening
and closing statements.
R309-115-9. Orders.
(1) Recommended Orders of Appointed Presiding
Officers.
(a) The appointed presiding officer shall prepare a
recommended order for the board, and shall provide copies of the
recommended order to the board and to all parties.
(b) Any party may, within 10 days of the date the
recommended order is mailed, delivered, or published, comment on
the recommended order. Such comments shall be limited to 15 pages
and shall cite to the specific parts of the record which support
the comments.
(c) The board shall review the recommended order,
comments on the recommended order, and those specific parts of
the record cited by the parties in any comments. The board shall
then determine whether to accept, reject, or modify the
recommended order. The board may remand part or all of the matter
to the presiding officer or may itself act as presiding officers
for further proceedings.
(e) The board may modify this procedure with notice to
all parties.
(2) Final Orders. The board shall issue a final order
which shall include the information required by 63G-3.
R309-115-10. Stays of Orders.
(1) Stay of Orders Pending Administrative
Adjudication.
(a) A party seeking a stay of a challenged order during
an adjudicative proceeding shall file a motion with the board. If
granted, a stay would suspend the challenged order for the period
as directed by the board.
(b) The board may order a stay of the order if the party
seeking the stay demonstrates the following:
(i) The party seeking the stay will suffer irreparable
harm unless the stay is issued;
(ii) The threatened injury to the party seeking the stay
outweighs whatever damage the proposed stay is likely to cause
the party restrained or enjoined;
(iii) The stay, if issued, would not be adverse to the
public interest; and
(iv) 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 adjudication.
(2) Stay of the Order Pending Judicial Review.
(a) A party seeking a stay of the board's final order
during the pendency of judicial review shall file a motion with
the board.
(b) The board as presiding officer may grant a stay of
its order during the pendency of judicial review if the standards
of R309-115-10(1)(b) are met.
R309-115-11. Reconsideration.
No agency review under 63G-3 is available. A party may
request reconsideration of an order of the presiding officer as
provided in 63G-3.
R309-115-12. Disqualification of Board Members or Other
Presiding Officers.
(1) Disqualification of Board Members or Other Presiding
Officers.
(a) A member of the board or other presiding officer
shall disqualify himself from performing the functions of the
presiding officer regarding any matter in which he, or his
spouse, or a person within the third degree of relationship to
either of them, or the spouse of such person:
(i) Is a party to the proceeding, or an officer,
director, or trustee of a party;
(ii) Has acted as an attorney in the proceeding or served
as an attorney for, or otherwise represented a party concerning
the matter in controversy;
(iii) Knows that he has a financial interest, either
individually or as a fiduciary, in the subject matter in
controversy or in a party to the proceeding;
(iv) Knows that he has any other interest that could be
substantially affected by the outcome of the proceeding;
or
(v) Is likely to be a material witness in the
proceeding.
(b) A member of the board or other presiding officer is
also subject to disqualification under principles of due process
and administrative law.
(c) These requirements are in addition to any
requirements under the Utah Public Officers' and
Employees' Ethics Act, Utah Code Ann. Section 67-16-1 et
seq.
(2) Motions for Disqualification. A motion for
disqualification shall be made first to the presiding officer. If
the presiding officer is appointed, any determination of the
presiding officer upon a motion for disqualification may be
appealed to the board.
R309-115-13. Declaratory Orders.
(1) A request for a declaratory order may be filed in
accordance with the provisions of 63G-3. The request shall be
titled a petition for declaratory order and shall meet the
requirements of 63G-3. The request shall also set out a proposed
order.
(2) Requests for declaratory order, if set for
adjudicative hearing, will be conducted using formal procedures
unless converted to an informal proceeding under R309-115-4(2)
above.
(3) The provisions of 63G-3 apply to declaratory
proceedings, as do the provisions of this Rule R309-115.
R309-115-14. Miscellaneous.
(1) Modifying Requirements of Rules. For good cause, the
requirements that would otherwise be imposed by these rules may
be waived or modified by order of the presiding officer.
(2) Extensions of Time. If requested before the
expiration of the pertinent time limit, the presiding officer may
approve extensions of any time limits established by this rule,
and may extend time limits adopted in schedules established under
R309-115-7(6). The presiding officer may also postpone hearings.
The chair of the board may act as presiding officer for purposes
of this paragraph.
(3) Computation of Time. Time shall be computed as
provided in Rule 6(a) of the Utah Rules of Civil Procedure except
that no additional time shall be allowed for service by
mail.
(4) Appearances and Representation.
(a) An individual who is a participant to a proceeding,
or an officer designated by a partnership, corporation,
association, or governmental entity which is a participant to a
proceeding, may represent his, her, or its interest in the
proceeding.
(b) Any participant may be represented by legal
counsel.
(5) Other Forms of Address. 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. Addressing the board in this manner does
not constitute a request for agency action under
R309-115-3.
(6) Settlement. A settlement may be through an
administrative order or through a proposed judicial consent
decree, subject to the agreement of the settlers.
(7) Requests for Records. This rule does not govern
requests for records or related assessment of fees. Requests for
records and related assessments of fees for records are governed
under the Title 63, Chapter 2, Utah Government Record Access and
Management Act.
(8) Grants and loans. Determinations with respect to
grants and loans made under R309-700, R309-705 and R309-352 are
not governed by Title 63G, Chapter 3, Utah Administrative
Procedures Act, or by this rule.
]
KEY: [drinking water, ]administrative [procedures]proceedings, hearings, adjudicative proceedings
Date of Enactment or Last Substantive Amendment: [August 24, 2001]2011
Notice of Continuation: March 22, 2010
Authorizing, and Implemented or Interpreted Law: [63G-3; 19-4]19-1-301; 63G-4-102; 63G-4-201 through 205; 63G-4-503
Additional Information
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For questions regarding the content or application of this rule, please contact Laura Lockhart at the above address, by phone at 801-366-0283, by FAX at 801-366-0292, or by Internet E-mail at [email protected].