Environmental Quality, Environmental Response and Remediation

Rule R311-210

Administrative Procedures for Underground Storage Tank Act Adjudicative Proceedings

Notice of Proposed Rule

(Repeal and Reenact)

DAR File No.: 34699
Filed: 04/14/2011 04:31:49 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, 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 R311-210 and several other places in DEQ's rules. In addition, the new rule makes many changes to existing rules governing administrative proceedings, 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:

• Sections 63G-4-201 through 63G-4-205
• Section 19-1-301
• 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 Quality
Environmental Response and Remediation
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 llockhart@utah.gov

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

R311. Environmental Quality, Environmental Response and Remediation.

R311-210. Administrative Procedures.

R311-210-1. Administrative Procedures.

Administrative proceedings are governed by Rule R305-6.

 

[ R311-210. Administrative Procedures for Underground Storage Tank Act Adjudicative Proceedings.

R311-210-1. Definitions.

Definitions are found in Section R311-200.

 

R311-210-2. General Provisions.

(a) In accordance with the Utah Administrative Procedures Act (UAPA), Utah Code Annotated, 1953 as amended, Section 63G-4-102 et seq., these rules set forth procedures which govern orders and notices by the Executive Secretary and adjudicative proceedings before the Executive Secretary, the Board and before the Executive Director. The Executive Secretary may issue UAPA-exempt orders or notices of violation as provided in Subsection 63G-4-102(2)(k) or may issue orders or notices under UAPA.

(b) Recognizing the potential for an ever increasing burden from adjudicating a matter, these rules are to facilitate and encourage that disputes be resolved at the lowest level possible.

(c) These rules are not intended to be comprehensive, but, are for supplementation, and provide for the inherent needs and unique purposes of proceedings directed or addressed by the Underground Storage Tank Act.

(d) These rules shall be liberally construed to secure a just, speedy and economical determination of all issues presented. These rules shall also be construed to be in compliance with the UAPA as far as the UAPA is applicable, the Environmental Quality Code (Section 19-1 et seq.) and the Underground Storage Tank Act. Whenever indicated, certain provisions have exclusive application to either UAPA-exempt, or UAPA formal or informal proceedings.

(e) Individuals who are participants to a proceeding, an agency which is a participant to a proceeding, or an individual designated by a partnership, corporation, association or governmental subdivision may represent their interest in the proceeding. Any participant may be represented by an attorney licensed to practice in the State of Utah or attorneys licensed to practice law in another jurisdiction which meet the rules of the Utah State Bar for practicing law before the courts of the State of Utah.

(f) 1. Issuance of any order or notice shall be made by certified mail to the party's most current address available to the agency. The agency may presume that the most current address available for an owner or operator is provided in the notification form that owners and operators are required to file with the agency. If delivery of certified mail is refused, the issued order or notice shall then be sent by regular mail.

2. All subsequent papers shall be sent by regular mail to each party or to the party's attorney if an attorney for that party has entered an appearance. Service shall be made at the address of initial service or at an address subsequently provided to the Presiding Officer and all parties.

3. In matters where the Executive Secretary is a participant, service shall be made to the Executive Secretary and the attorney representing the Executive Secretary.

(g) Parties that request a determination of responsible parties or apportionment of liability among responsible parties shall pay the costs of the action requested at a rate set by the state legislature if the request is granted. Parties that request agency review of an action which determined responsible parties or apportioned liability shall pay the costs of further proceedings at a rate set by the state legislature. However, when a final determination of liability is made and the requesting party is less than one hundred per cent liable, the costs of the proceedings shall be included in the apportionment decision and the requesting party may recover its costs from the other parties according to each party's apportioned liability. If the agency initiates such proceedings without a requesting party, the agency shall pay the costs of the proceedings and may recover costs of the proceedings as provided above.

(h) Except as otherwise stated in Section R311-210, informal adjudicative proceedings shall be conducted in accordance with Section 63G-4-203 of UAPA.

(i) A contested order revoking a certificate of compliance may be, in accordance with Section 19-6-414(3), appealed to the Executive Director. In such contested orders the term "Board" as used in R311-210 means the Executive Director.

(j) The term "issue" as in issuing an order means the time a signed order is mailed in accordance with these rules. Where delivery of an order or notice is refused, the date of issuance shall be the date the refused order or notice was sent by certified mail.

(k) Time shall be computed as provided in Rule 6 of the Utah Rules of Civil Procedure.

(l) At the time these rules or any amendments become effective, they will apply to ongoing adjudicative proceedings.

 

R311-210-3. Orders and Notices of Violation.

(a) All UAPA-exempt orders or notices of violation issued under 63G-4-102(2)(k) are effective upon issuance unless otherwise provided in the order and shall become final if not contested within 30 days after the date issued. Except as provided in subsection R311-210-3(b), failure to timely contest a UAPA-exempt order or notice of violation waives any right of administrative contest, reconsideration, review or judicial appeal. The contesting party has the burden of proving that an order or notice of violation was contested within 30 days of its issuance.

(b) A party may seek to have the Executive Secretary set aside an order or notice of violation which was not contested within 30 days and became final by following the procedures outlined in the Utah Rules of Civil Procedure for setting aside default judgments.

1. A motion to set aside an order or notice of violation that became final shall be made to the Executive Secretary.

2. If a motion to set aside an order or notice of violation that became final is denied, the party may seek reconsideration or agency review on only that decision to deny such motion to set aside the order or notice.

(c) In proceedings involving multiple parties, a party that has an order or notice of violation issued against it which becomes final by not being timely contested is precluded from participating in any further adjudicative proceedings with the other parties on the matter, unless the Executive Secretary sets aside the order under R311-210-3(b) or unless such party is permitted to enter an appearance as Amicus Curiae as provided in R311-210-6(g).

(d) All initial orders and notices of violation issued by the Executive Secretary shall be in a log that is available for public inspection during office hours.

 

R311-210-4. Contesting a UAPA-exempt Order or Notice of Violation Issued by the Executive Secretary.

(a) The validity of any UAPA-exempt order or notice of violation issued by the Executive Secretary may be contested by filing a request for agency action. A request for agency action to contest a UAPA-exempt order or notice of violation and all subsequent proceedings acting on such a request are governed by the UAPA as provided in Subsection 63G-4-102(2)(k).

(b)(1) Except as provided in subparagraph (c)(1), the validity of a UAPA-exempt order or notice of violation may be contested by filing a request for agency action, as specified in Section 63G-4-201 of the UAPA, with the Board at the Solid and Hazardous Waste Control Board, Division of Environmental Response and Remediation, 168 North 1950 West, 1st Floor, PO Box 144840, Salt Lake City, Utah 84114-4840.

(2) The petitioner's request for agency action shall clearly express the reasons, facts and legal authority which forms the basis for contesting the order or notice of violation. The petitioner shall refer specifically to each numbered fact and violation arrived at in the order or notice of violation and with correspondingly numbered paragraphs shall admit or with appropriate explanation deny or dispute each fact and violation arrived at in the order or notice of violation. If the petitioner has other claims or defenses, the petitioner with reasons, facts and legal authority shall in short plain terms assert such claims or defenses.

(c)(1) A UAPA-exempt notice revoking a certificate of compliance under Section 19-6-414 may be contested by filing a request for agency action with the Executive Director of the Department of Environmental Quality at the Department of Environmental Quality, Office of the Executive Director, 168 North 1950 West, 2nd Floor, PO Box 144810, Salt Lake City, Utah 84114-4810.

(2) The petitioner's request for agency action with the Executive Director shall conform with Section 63G-4-201 of the UAPA and the above subparagraph (b)(2).

(d) Any request for agency action must be received for filing within thirty (30) days of the date the Executive Secretary issues the order or notice of violation.

(e) Notice of the time and place of any scheduled hearing for a request for agency action shall be given as provided in Section 63G-4-201(d) of UAPA. If a hearing has not been scheduled, the response shall give notice of the time and place of a pre-hearing conference to appropriately schedule a hearing. Notice of the time and place of a hearing shall be provided promptly after the hearing is scheduled.

 

R311-210-5. Contesting an Order or Notice of Violation Issued by the Executive Secretary Under UAPA.

(a) The recipient of an order or notice of violation issued by the Executive Secretary under UAPA may request agency review, as provided in Section 63G-4-301. Except as provided in subparagraph (b), agency review of a contested order issued under UAPA may be requested by filing a request for review with the Board at the Solid and Hazardous Waste Control Board, UST, 168 North 1950 West, 1st Floor, PO Box 144840, Salt Lake City, Utah 84114-4840.

(b) A notice revoking a certificate of compliance under Section 19-6-414 that is issued by the Executive Secretary under UAPA may be contested by filing a request for review with the Executive Director of the Department of Environmental Quality at the Department of Environmental Quality, Office of the Executive Director, 168 North 1950 West, 2nd Floor, PO Box 144810, Salt Lake City, Utah 84114-4810.

(c) Agency review of an order or notice is governed by Section 63G-4-301.

 

R311-210-6. Parties and Intervention.

(a) The following persons are parties to a proceeding governed by this rule:

1. The person or persons to whom the challenged order or notice of violation is directed;

2. The Executive Secretary; and

3. All persons whose legal rights or interests are substantially affected by the proceeding, and to whom intervention rights have been granted under R311-210-6(d).

(b) In a proceeding requested by the person to whom the challenged order or notice of violation is directed, that person shall be the petitioner and the Executive Secretary or any other non-requesting parties shall be the respondent.

(c) In a proceeding requested by the person requesting intervention, the intervenor shall be the petitioner (provided that intervention is granted), and the Executive Secretary and any persons to whom the challenged order or notice of violation is directed shall be the respondents.

(d) Intervention: A person who is not a party to a proceeding may request intervention under Section 63G-4-207 of the UAPA for the purpose of filing a request for agency action, and may simultaneously file that request.

(e) Any request for intervention and agency action must be received as provided in R311-210-4 within 30 days of the date of the pertinent order or notice of violation. The person seeking intervention shall provide copies of the request and any accompanying motions, notices, and requests to all parties.

(f) Any party may, within 20 days of the receipt of the agency's notice of a request for agency action issued under 63G-4-201(3)(d) and (e) or such earlier time as established by the presiding officer, respond to a request for intervention. If no presiding officer with a general appointment exists, the Chair of the Board may act as presiding officer for purposes of this paragraph.

(g) Persons may be permitted by the presiding officer to enter an appearance as Amicus Curiae, subject to conditions established by the presiding officer.

 

R311-210-7. Presiding Officer.

(a) In proceedings to review UAPA-exempt orders and notices of violations, the Board is the "agency head" as the term is used in the UAPA.

(b) When acting as agency head, the Board is the "presiding officer" as that term is used in the UAPA, except:

1. the Chair of the Board shall be considered the presiding officer to the extent that these rules allow; and

2. the Board may by order appoint a presiding officer to preside over all or a portion of the proceedings.

(c) When a UAPA proceeding is before the Executive Secretary, the Executive Secretary is the "agency head" and the "Presiding Officer," and the Board is the "superior agency" as those terms are used in the UAPA. When acting as agency head, the Executive Secretary may appoint an individual or panel to be the Presiding Officer.

(d) A presiding officer when appointed by the appointing authority shall be empowered with such authority as granted by the appointing authority and the UAPA, except making final substantive decisions and as may be limited by Section R311-210 or the appointing authority.

 

R311-210-8. Designation of Formal Proceedings.

(a) Proceedings pursuant to a request for agency action are designated as formal, including: enforcement, violations, non-compliance, civil penalties, assessments, revocations, lapsed or terminated certificates, abatements, corrective plans, releases, tank tightness, claims, and other matters determining a person's legal interest.

(b) UAPA proceedings before the Executive Secretary including those determining responsible parties and apportioning liability among responsible parties shall be designated formal.

 

R311-210-9. Conversion of Proceedings.

(a) In accordance with the UAPA, the presiding officer, may, at any time, convert proceedings it is adjudicating which are designated informal to formal, and proceedings which are designated as formal to informal if conversion is in the public interest and rights of all parties are not unfairly prejudiced.

(b) If multiple issues are part of one proceeding, the presiding officer may separate the proceedings to convert one or more of the matters from formal to informal or informal to formal while allowing the other matters to proceed at the ongoing designation.

 

R311-210-10. Preliminary Matters to Apportionment and Other Proceedings.

(a) The Executive Secretary may request owners or operators of a facility that had a release of a regulated substance or any persons identified as potential responsible parties to provide information and documentation pertinent to the identification of other responsible parties. However, this does not prevent the Executive Secretary from determining responsible parties and apportioning liability. If information identifying or otherwise concerning other potentially responsible parties is provided, the forwarding of such information to the Executive Secretary is not to be construed as a request to determine responsible parties or apportion liability.

(b) The Executive Secretary may make a preliminary identification of as many responsible parties as reasonably possible that are to be a part of an initial proceeding. The preliminary identification of responsible parties does not constitute an order. The preliminary identification may be made solely from information provided in the manner described in subsection R311-210-10(a). In making such a determination, the Executive Secretary may assess whether any identification of a responsible party by other parties is without merit, or may find that no grounds exist to identify such person as a responsible party.

(c) Before any proceeding is commenced, the Executive Secretary, or a representative of the Executive Secretary may seek to resolve the impending proceeding by encouraging or facilitating settlement.

 

R311-210-11. Multiple Issues or Parties.

(a) Multiple issues may be determined in one proceeding, or in one resulting order or notice of violation.

(b) Multiple issues having been determined in a single proceeding may, if contested, proceed separately.

(c) The naming or identifying of responsible parties as part of an investigation whether or not it results in an order or notice of violation, or as part of an adjudication does not preclude the naming or identifying of different or additional responsible parties in the same investigation or adjudication for different issues, or separate investigations or adjudications concerning different issues.

 

R311-210-12. Motions.

(a) In an informal proceeding, a motion or response to a motion may be submitted orally or in writing as directed by the presiding officer.

(b) In a formal proceeding, any motion or response to a motion shall be submitted in writing to the presiding officer, unless otherwise directed by the presiding officer. The motion or response may be accompanied by a short supporting memorandum of fact and law. Supporting or contravening affidavits may be submitted with the motion or response.

(c) Responses to motions must be received by the presiding officer ten days after the motion is submitted, unless otherwise directed by the presiding officer.

(d) Although the agency or parties may file responses as provided in R311-210-12(c), such responses are not required and the agency or parties will not be subject to default for declining to file responses.

(e) Dispositive motions that concern facts or matters beyond those contained solely within the request for agency action shall be completed 30 days before the scheduled hearing, unless otherwise directed by the presiding officer.

 

R311-210-13. Record Submission and Review.

In accordance with Section 63G-4-203(e), in informal proceedings the presiding officer may require parties to submit pertinent information within a designated response period. Parties' access to information shall be as provided in the UAPA. The presiding officer may sanction a party that does not submit information that is requested by the presiding officer. Such sanctions include exclusion of evidence at the hearing, being held in default, or other applicable sanctions found in Rule 37(b) of the Utah Rules of Civil Procedure. If a hearing is scheduled, a party shall submit to the presiding officer any information that was not requested that the party intends to use at the hearing 30 days before the hearing. Failure to timely submit such information may result in the presiding officer excluding the information at the hearing.

 

R311-210-14. Discovery.

(a) In formal proceedings, all parties shall submit to the presiding officer all relevant information they possess or are aware of necessary for parties to support their claims or defenses within 30 days after proceedings are commenced, and with newly acquired information within 30 days after the party discovers such information, but not less than 30 days before a formal hearing. The Executive Secretary satisfies this obligation by making the public agency file available for inspection. If a party fails to timely provide the required information, the presiding officer may enter an order of default, exclude evidence, or enter other applicable sanctions found in Rule 37(b) of the Utah Rules of Civil Procedure. Parties submitting the information shall provide notice to all other parties with a list or brief summary of all information being submitted. Parties shall have access to the information submitted to the presiding officer, and to information acquired through agency investigations and other information contained in its files.

(b) In formal proceedings the presiding officer may vary the manner of discovery if it appears appropriate, or upon the motion of a party and for good cause shown. If discovery is varied to be more in accordance with the Utah Rules of Civil Procedure, copies of all discovery conducted between parties shall be provided to the presiding officer at the cost to the party seeking discovery.

(c) In formal proceedings, upon approval by the presiding officer, any party may serve on any other party a request to permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon if the information sought is reasonably calculated to lead to the discovery of admissible evidence.

1. The request shall set forth the items to be inspected either by individual item or by category, and describe each item and category with reasonable particularity. The request shall specify a reasonable time, place, and manner of making the inspection and performing the related acts.

2. The party upon whom the request is served shall serve a written response within 20 days after the service of the request. The presiding officer may allow a shorter or longer time. The response shall state with respect to each item or category, that inspection and related activities will be permitted as requested, unless the request is objected to, in which event the reasons for objection shall be stated. The party submitting the request may move for an order compelling inspection and seek any sanction referred to above in subsection (a) with respect to any objection to or failure to respond to the request or any part thereof, or any failure to permit inspection as requested.

 

R311-210-15. Pre-Hearing Matters.

(a) In proceedings in which a hearing may be held, the presiding officer may, upon written notice to all parties of record, hold a pre-hearing conference. Matters that may be discussed at the pre-hearing conference include: setting a hearing date; formulating or simplifying the issues; obtaining stipulations, admissions of fact and of documents which will avoid unnecessary proof; arranging for the exchange of proposed exhibits or prepared expert testimony; identifying all other proposed exhibits or witnesses; outlining or reviewing procedures to be followed; encouraging joint pleadings, exhibits, testimony and cross-examination where parties have common interests; and facilitating settlement and other agreements. Any other matters that may expedite the orderly conduct of the proceedings may be discussed.

(b) Parties to a proceeding are encouraged to prepare a joint-proposed schedule addressing matters such as a hearing date, and motion and discovery cut off dates. If the parties cannot agree on a joint-proposed schedule, the presiding officer may consider proposals by any party.

(c) The presiding officer shall establish schedules for discovery and other pre-hearing proceedings, for the hearing, and for any post-hearing proceedings.

 

R311-210-16. Conduct of Formal Hearings.

(a) All formal hearings shall be open to the public, unless otherwise ordered by the presiding officer for good cause shown.

(b) The presiding officer shall maintain order and may, recess the hearing for the time necessary to regain order if a person engages in disrespectful, disorderly, or contumacious conduct. The presiding officer may take measures to remove a person, including participants from the hearing, if necessary, to maintain order. If a participant shows persistent disregard on matters of order and procedure, the presiding officer may enter a sanction on the person including: restricting the person's participation, putting on evidence, or issuing an order of default.

(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.

(d) In apportionment proceedings, the order of presentation of evidence will be as follows, unless otherwise directed by the presiding officer: the responsible party most recently involved in the facility, with operators having priority over owners; then underground storage tank installation companies, then subsequent responsible parties in the order of recency of involvement in the facility; intervenor(s); the agency; and other interested parties. Argument normally will follow the same order. For other proceedings, the presiding officer may order the presentation of evidence in a manner deemed appropriate.

(e) Parties may question opposing witnesses on any matter relevant to the issue even though the matter was not covered in direct examination. The presiding officer may limit or exclude friendly cross-examination. The presiding officer shall discourage and may prohibit parties from making their case through cross-examination.

(f) The presiding officer may question any party or witness and may admit any evidence believed relevant or material.

(g) The presiding officer may continue a hearing to another time or place if additional evidence is available or reasonably expected to be available and the presiding officer determines such evidence is necessary for the proper determination of the case.

 

R311-210-17. Rules of Evidence.

(a) The presiding officer is not bound by the rules of evidence and need not adhere to the rules as required in civil actions in the courts of this State. Nevertheless, in UAPA proceedings, the Utah Rules of Evidence shall be used as an appropriate guide insofar as they are not inconsistent with the UAPA and these Rules.

(b) In contested proceedings providing a hearing, if a witness' testimony has been reduced to writing and filed with the presiding officer at least 30 days prior to the hearing, the testimony may be placed into the record as an exhibit. Parties shall have an opportunity to cross-examine the witness on the testimony.

 

R311-210-18. Recommended Orders.

(a) If the presiding officer in a proceeding is an appointed presiding officer, at the conclusion of the hearing or taking evidence, the presiding officer cannot make any final substantive decisions, but, shall take the matter under advisement and shall submit to the appointing authority recommended orders. The recommended orders shall follow the form in the UAPA for signed and issued orders in informal or formal proceedings. All recommended orders will be public record and copies shall be distributed to all parties.

(b) Any party may, within 20 days of the date the draft order is mailed, delivered, or published, comment on the draft order.

(c) The appointing authority may adopt and sign the recommended orders or any portion of them as final orders; reject the recommended orders or any portion of them and make an independent determination based on the record or order further proceedings. If the appointing authority adopts or rejects a portion of the recommended orders, the appointing authority shall make specific reference to the portion adopted or rejected. If the appointing authority rejects the entire recommended orders, the appointing authority shall specifically state that they are rejected in their entirety. The appointing authority shall cite specifically to the record for the bases of any independent determinations in the final orders.

(d) The appointing authority may remand the matter to the presiding officer to take additional evidence. The presiding officer thereafter shall submit to the appointing authority new recommended orders.

(e) The Board adopting and signing recommended orders as final orders or making independent determinations and signing them as final orders pursuant to a request for agency action to contest an initial order does not constitute agency review, but is open to a request for reconsideration in accordance with Section 63G-4-302 of the UAPA.

(f) The appointing authority may modify this procedure with notice to all parties.

 

R311-210-19. Stays of Orders.

(a) Orders of the Executive Secretary are immediately effective upon being issued unless otherwise provided in the order. Upon a timely request for agency action or agency review to contest such orders, any person who desires a stay of the order before the next regular Board meeting may request a stay.

(b) A party seeking a stay of the order of the Executive Secretary shall file a motion with the presiding officer.

(c) The presiding officer may order a stay of the order of the Executive Secretary if the party seeking the stay demonstrates that:

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 a 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 officer.

(d) No bond shall be required from the party requesting the stay.

(e) The Board may grant a stay of its order (or of the order of its appointed presiding officer) during the pendency of judicial review if the standards of R311-210-19(c) are met.

(f) The request for a stay shall be deemed denied if the presiding officer does not issue a written decision to deny or grant a stay of any order within ten working days of the filing of a written motion.

 

R311-210-20. Standard of Agency Review.

The standard of review of orders issued by the Executive Secretary following a formal UAPA proceeding that are before the superior agency shall be the standard delineated in Section 63G-4-403(4)(c)-(h) of UAPA.]

 

KEY: [petroleum]administrative proceedings, underground storage tanks[*], hearings, adjudicative proceedings

Date of Enactment or Last Substantive Amendment: [October 9, 1998]2011

Notice of Continuation: April 18, 2007

Authorizing, and Implemented or Interpreted Law: 19-1-301; 19-6-105; 19-6-403; 63G-4-201 through 205; 63G-4-503