Environmental Quality, Solid and Hazardous Waste

Rule R315-12

Administrative Procedures

Notice of Proposed Rule

(Repeal and Reenact)

DAR File No.: 34702
Filed: 04/14/2011 04:37:52 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 governing administrative proceedings currently found in several places in DEQ's rules. In addition, the new Rule R305-6 makes many changes to Rule R315-12 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 63G-4-102
• Section 19-1-301
• Section 19-6-105
• Sections 63G-4-201 through 63G-4-205
• 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 R305-6. 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
Solid and Hazardous Waste
195 N 1950 W
SALT LAKE CITY, UT 84116-3097

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

R315. Environmental Quality, Solid and Hazardous Waste.

R315-12. Administrative Procedures.

R315-12-1. Administrative Procedures.

Administrative proceedings under the following acts are governed by Rule R305-6:

(1) Title 19, Chapter 6, Part 1 (Solid and Hazardous Waste Act);

(2) Title 19, Chapter 6, Part 6 (Lead Acid Battery Disposal);

(3) Title 19, Chapter 6, Part 7 (Used Oil Management Act);

(4) Tile 26, Chapter 32a (Waste Tire Recycling); and

(5) Title 19, Chapter 6, Part 10 (Mercury Switch Removal Act).

 

[R315-12-1. Application of Rule.

(a) This rule applies to proceedings under Title 19, Chapter 6, Part 1 (Solid and Hazardous Waste Act), Title 19, Chapter 6, Part 5 (Solid Waste Management Act), Title 19, Chapter 6, Part 6 (Lead Acid Battery Disposal), Title 19, Chapter 6, Part 7 (Used Oil Management Act), Tile 26, Chapter 32a (Waste Tire Recycling), and Title 19, Chapter 6, Part 10 (Mercury Switch Removal Act).

(b) For purposes of these rules, an appeal under the Used Oil Management Act shall mean the process of agency decision making under the Utah Administrative Procedures Act (UAPA), Section 63G-4-101 through 63G-4-209, and the standards, deadlines, procedures, and other requirements for an appeal shall be same as the standards, deadlines, procedures, and other requirements for contesting the validity of an initial order or violation under R315-12.

 

R315-12-2. Orders, NOVs, and Other Decisions by the Executive Secretary.

2.1 INITIAL PROCEEDINGS EXEMPT FROM UAPA

Proceedings that culminate in the issuance of an initial order or a notice of violation under the Utah Solid and Hazardous Waste Act are not governed by the provisions of the Utah Administrative Procedures Act (UAPA) as specified in Section 63G-4-102(2)(k). This includes initial proceedings regarding: approval, modification, denial, termination, transfer, revocation, or reissuance of permits; approval for equivalent testing or analytical methods; notices of violation and orders associated with notices of violation; orders for corrective action; and consent orders.

2.2 INITIAL ORDERS AND NOTICES OF VIOLATION ISSUED BY EXECUTIVE SECRETARY

(a) The initial orders and notices described in R315-12-2.1 shall be issued by the Executive Secretary.

(b) An initial order or notice shall become final in 30 days if not contested as described in R315-12-3. Failure to contest an initial order or notice waives any right of administrative review or judicial appeal.

 

R315-12-3. Contesting the Validity of an Initial Order or Notice of Violation Issued by the Executive Secretary.

3.1 CONTESTING THE VALIDITY OF AN INITIAL ORDER OR NOTICE OF VIOLATION -- REQUEST FOR AGENCY ACTION

(a) The validity of initial orders or notices of violation described in R315-12-2 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 63G-4-201(3) of UAPA, and shall be received for filing within 30 days of the issuance of the Executive Secretary's order or notice of violation.

3.2 RESPONSE TO REQUEST FOR AGENCY ACTION

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.

3.3 UAPA GOVERNS SUBSEQUENT PROCEEDINGS

A Request for Agency Action, and all subsequent proceedings acting on that request, are governed by UAPA. Section 63G-4-102(2)(k) of UAPA.

 

R315-12-4. Parties and Intervention.

4.1 WHO IS A PARTY?

(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 Executive Secretary;

(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 R315-12-4.2.

(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 Respondent.

(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.

4.2 INTERVENTION

(a) A person who is not a party to a proceeding may request intervention under Section 63G-4-207 of UAPA for the purpose of filing a Request for Agency Action, and may simultaneously file that Request. Any such Requests for Intervention and Agency Action must be received by the Board for filing as provided in R315-12-3.1 within 30 days of the date of the challenged order or notice of violation.

(b) 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.

4.3 Amicus curiae (Friend of the Court)

Persons may be permitted by the Presiding Officer(s) to enter an appearance as Amicus Curiae (Friend of the Court), subject to conditions established by the Presiding Officer(s).

4.4 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 or its interest in the proceeding.

(b) Any participant may be represented by an attorney at law.

 

R315-12-5. Conduct of Proceedings.

5.1 ROLE OF BOARD

(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; and

(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.

5.2 APPOINTED PRESIDING OFFICERS

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 R315-12-7.2 regarding orders of Presiding Officers.

5.3 DESIGNATION OF PROCEEDINGS AS FORMAL OR INFORMAL

(a) 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 regarding approval, modification, denial, termination, transfer, revocation, or reissuance of a permit;

(2) An order regarding approval, denial, or modification of a corrective action, clean-up, or closure plan;

(3) A notice of violation or order associated with a notice of violation; or

(4) A consent order.

(b) 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 63G-4-202(3) of UAPA.

5.4 PRE-HEARING CONFERENCES

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.

5.5 BRIEFS

(a) 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 all Parties.

(b) Response briefs may not be filed unless permitted by the Presiding Officer(s).

5.6 PARTIES MAY PROPOSE SCHEDULE

Parties to a proceeding are encouraged to prepare a joint proposed schedule addressing the matters specified in R315-12-5.7. If the parties cannot agree on a joint proposed schedule, the Presiding Officer(s) may consider proposals by any party.

5.7 PRESIDING OFFICER(S) SHALL ESTABLISH SCHEDULES

The Presiding Officer(s) shall establish schedules for discovery and other pre-hearing proceedings, for the hearing, and for any post-hearing proceedings.

5.8 EXTENSIONS OF TIME

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 R315-12-5.7. The Presiding Officer(s) may also postpone hearings. The Chair of the Board may act as Presiding Officer for purposes of this paragraph.

5.9 COMPUTATION OF TIME

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.

5.10 MOTIONS

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 Presiding Officer.

5.11 FILING AND COPIES OF SUBMISSIONS

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.

 

R315-12-6. Hearings.

6.1 CONDUCT OF HEARING

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 argument.

6.2 ORDER OF PRESENTATION

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.

 

R315-12-7. Orders.

7.1 PROPOSED ORDERS BY PARTIES

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 hearing.

7.2 DRAFT ORDERS OF APPOINTED PRESIDING OFFICERS

(a) 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 Parties.

(b) 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 comments.

(c) 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 proceedings.

(d) The Board may modify this procedure with notice to all Parties.

7.3 CONTENT OF ORDERS

An order shall include the information required by Sections 63G-4-208 or 63G-4-203(1)(i) of UAPA.

 

R315-12-8. Stays of Orders.

8.1 STAY OF THE ORDER OF THE EXECUTIVE SECRETARY

(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 Order.

(b) The Presiding Officer(s) may order a stay of the Executive Secretary's Order 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 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(s).

8.2 STAY OF THE ORDER OF THE PRESIDING OFFICER(S)

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 8.1(b) are met.

 

R315-12-9. Reconsideration.

No agency review under Section 63G-4-301 of UAPA is available. A Party may request reconsideration of an order of the Presiding Officer(s) as provided in Section 63G-4-302 of UAPA.

 

R315-12-10. Disqualification of Presiding Officer(s).

10.1 DISQUALIFICATION OF PRESIDING OFFICER

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:

(a) He/she, or his/her spouse, or a person within the third degree of relationship to either of them, or the spouse of such person:

(1) Is a party to the proceeding, or an officer, director, or trustee of a Party;

(2) Has acted as an attorney in the proceeding or served as an attorney for, or otherwise represented a Party concerning the matter in controversy;

(3) Knows that he/she has an financial interest, either individually or as a fiduciary, in the subject matter in controversy or in a Party to the proceeding;

(4) Knows that he/she has any other interest that could be substantially affected by the outcome of the proceeding; or

(5) Is likely to be a material witness in the proceeding.

(b) The Presiding Officer is subject to disqualification under principles of due process and administrative law.

10.2 MOTIONS FOR DISQUALIFICATION

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.

 

R315-12-11. 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. However, addressing the Board in this manner does not constitute a request for agency action under R315-12-3.

 

R315-12-12. Requests for Records.

Requests for records under the Utah Government Record Access and Management Act, Title 63G, Chapter 2, Utah Code Ann., are not governed by R315. See R305-1, U.A.C.

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KEY: hazardous waste; administrative proceedings, hearings, adjudicative proceedings

Date of Enactment or Last Substantive Amendment: [December 1, 2006]2011

Notice of Continuation: August 24, 2006

Authorizing, and Implemented or Interpreted Law: [63G-4-202]19-1-301; 19-6-105; 63G-4-102; 63G-4-201 through 205; 63G-4-503