File No. 36554
This rule was published in the August 15, 2012, issue (Vol. 2012, No. 16) of the Utah State Bulletin.
Environmental Quality, Administration
Rule R305-6
Administrative Procedures
Notice of Proposed Rule
(Repeal)
DAR File No.: 36554
Filed: 07/30/2012 12:07:30 PM
RULE ANALYSIS
Purpose of the rule or reason for the change:
The rule is being repealed, following the enactment of S.B. 11 (2012 General Session), and will be replaced by Rule R305-7. (DAR NOTE: The proposed new Rule R305-7 is under DAR No. 36553 in this issue, August 15, 2012, of the Bulletin.)
Summary of the rule or change:
The entire rule will be repealed and will be replaced by Rule R305-7.
State statutory or constitutional authorization for this rule:
- Section 19-1-301.5
Anticipated cost or savings to:
the state budget:
No changes as a result of the repeal. The changes resulting from the enactment of Rule R305-7 are described in that rulemaking.
local governments:
No impact as a result of the repeal. The changes resulting from the enactment of Rule R305-7 are described in that rulemaking.
small businesses:
No impact as a result of the repeal. The changes resulting from the enactment of Rule R305-7 are described in that rulemaking.
persons other than small businesses, businesses, or local governmental entities:
No impact as a result of the repeal. The changes resulting from the enactment of Rule R305-7 are described in that rulemaking.
Compliance costs for affected persons:
There will be no compliance costs because the rule is being proposed for repeal.
Comments by the department head on the fiscal impact the rule may have on businesses:
There will be no fiscal impact because the rule is being proposed for repeal.
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 QualityAdministration
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
- Beverly Rasmussen at the above address, by phone at 801-536-4405, by FAX at 801-536-0061, or by Internet E-mail at bjrasmussen@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:
10/01/2012
Interested persons may attend a public hearing regarding this rule:
- 09/20/2012 03:30 PM, DEQ Boardroom, 195 N 1950 W, Salt Lake City, UT
This rule may become effective on:
10/08/2012
Authorized by:
Amanda Smith, Executive Director
RULE TEXT
R305. Environmental Quality, Administration.
[
R305-6. Administrative Procedures.
R305-6-101. Purpose of Parts.
Part 1 of this Rule (R305-6-101 through 118) addresses
general and preliminary matters.
Part 2 of this Rule (R305-6-201 through 219) addresses
procedures for adjudication.
Part 3 of this Rule (R305-6-301 through 303) addresses
declaratory orders and emergency adjudication.
Part 4 of this Rule (R305-6-401 through 423) addresses
matters relevant to specific statutes.
R305-6-102. Scope of Rule.
This rule governing administrative procedures applies to
proceedings under:
(1) the Environmental Quality Code, Utah Code Ann. Title
19, Chapter 1;
(2) the Air Conservation Act, Utah Code Ann. Title 19,
Chapter 2;
(3) the Radiation Control Act, Utah Code Ann. Title 19,
Chapter 3;
(4) the Safe Drinking Water Act, Utah Code Ann. Title 19,
Chapter 4;
(5) the Water Quality Act, Utah Code Ann. Title 19,
Chapter 5;
(6) the Solid and Hazardous Waste Act, Utah Code Ann.
Title 19, Chapter 6, Part 1;
(7) the Hazardous Substances Mitigation Act, Utah Code
Ann. Title 19, Chapter 6, Part 3;
(8) the Underground Storage Tank Act, Utah Code Ann.
Title 19, Chapter 6, Part 4;
(9) the Used Oil Management Act, Utah Code Ann. Title 19,
Chapter 6, Part 7;
(10) the Waste Tire Recycling Act, Utah Code Ann. Title
19, Chapter 6, Part 8;
(11) the Illegal Drug Operations Site Reporting and
Decontamination Act, Utah Code Ann. Title 19, Chapter 6, Part
9;
(12) the Mercury Switch Removal Act, Utah Code Ann. Title
19, Chapter 6, Part 10;
(13) the Industrial Byproduct Reuse provisions, Title 19,
Chapter 6, Part 10;
(14) the Voluntary Cleanup Program provisions, Title 19,
Chapter 8; and
(15) the Environmental Covenants Act, Title 57, Chapter
25.
R305-6-103. Definitions.
The following definitions apply to this Rule. The
definitions in Part 4 of this Rule, e.g., definitions of
"Board" and "Executive Secretary," also apply
for matters governed by the statutory provisions specified in
that Part. If the definition in Part 4 differs from the
definition in Part 1, the definition in Part 4 controls.
(1) "Administrative Law Judge" or ALJ means the
person appointed under Section 19-1-301 to conduct an
adjudicatory proceeding.
(2) "Administrative Proceedings Records
Officer" means the person who receives the record copies of
submissions on behalf of the agency, as specified in
R305-6-109.
(3) "Executive Director" means the Executive
Director of the Department of Environmental Quality.
(4) "Initial Order" means an Order, as defined
in R305-6-103(6), that is issued by the Executive Secretary and
that is the final step in the portion of a proceeding that is
exempt from the requirements of UAPA as provided in Section
63G-4-102(2)(k). "Initial Orders" are further described
in Part 4 of this Rule.
(5) "Notice of Violation" means a notice of
violation issued by the Executive Secretary that is exempt from
the requirements of UAPA under Section 63G-4-102(2)(k).
(6) "Order" means any determination by a person
or entity within the Department of Environmental Quality that
affects the legal rights of a person or group of persons, but not
including a rule made under the Utah Administrative Rulemaking
Act, Title 63G, Chapter 3. Orders include but are not limited
to:
(a) compliance orders and administrative settlement
orders;
(b) cease and desist orders (but not including emergency
orders issued under Section 63G-4-502);
(c) approvals, denials, terminations, modifications,
revocations, reissuances or renewals of a permit, plan approval
or license;
(d) approvals, denials, or modifications of financial
assurance;
(e) approvals, denials, or modifications of requests for
a variance or exemption from regulatory requirements;
(f) approvals, denials, or modifications of requests for
application of alternative standards or requirements, or of an
experimental program;
(g) certifications or denials of certifications;
(h) assessments of fees or penalties;
(i) declaratory orders under Section 63G-4-503 and
R305-6-302;
(j) preliminary approvals preceding issuance of a permit,
plan approval or license if the approval is identified and issued
as an order; and
(k) all other orders described as Initial Orders in Part
4 of this Rule.
(7) "Part" means the sections of this Rule that
are grouped together by subject matter, e.g., Sections R305-6-401
through 423 are Part 4 of this Rule.
(8) "Party" is defined in R-305-6-204.
(9) "Person" means an individual, trust, firm,
estate, company, corporation, partnership, association, state,
state or federal agency or entity, municipality, commission, or
political subdivision of a state. "Person" also
includes, as appropriate to the matter, other entities as
provided in definitions in the statutes specified in R305-6-102
and in rules promulgated thereunder.
(10) "Presiding Officer" shall mean, as
appropriate:
(a) The ALJ for proceedings conducted under Section
19-1-301;
(b) The members of a Board, for proceedings associated
with determinations to be made by the Board, including
determinations under Section 19-1-301(6)(b);
(c) The Board Chair as specified in R305-6-110(3),
R305-6-215(3), and R305-6-216; or
(d) Any other Presiding Officer specified in Part
4.
(11) "RFAA" means a Request for Agency Action.
See R305-6-202.
(12) "Rule" means this Rule R305-6,
Administrative Procedures for the Department of Environmental
Quality, unless otherwise specified.
(13) "UAPA" means the Utah Administrative
Procedures Act, Utah Code Ann. Title 63G, Chapter 4.
R305-6-104. Applicability of UAPA.
(1) Proceedings that result in Initial Orders and Notices
of Violation issued by the Executive Secretary are exempt from
the requirements of UAPA, as provided in Section
63G-4-102(2)(k).
(2) A proceeding to challenge an Initial Order or a
Notice of Violation is subject to the requirements of UAPA as
provided in this Rule.
(3) Proceedings other than those described in
R305-6-104(1) are subject to the requirements of UAPA as provided
in this Rule.
(4) Neither UAPA nor this Rule applies to requests for
government records or requests for confidentiality of government
records. Those matters are governed by the Utah Government
Records Access and Management Act, Sections 63G-2-101 through
901, and by Section 19-1-306.
R305-6-105. Notice and Comment, and Exhaustion of
Remedies.
(1) Public notice and an opportunity for comment is
provided before some orders are issued. An agency may choose to
provide opportunity for comment even if one is not
required.
(2)(a) If an opportunity to comment is provided, a
prospective challenger must provide comments in order to preserve
the challenger's right to contest an Initial Order. Comments
are sufficient to preserve the right to contest an order, for
each issue raised, if the comments provide sufficient information
to give notice to the agency to allow the agency to fully
consider the issue before making a determination.
(b) The requirements of R305-6-105(2)(a) are in addition
to other requirements in the Rule, such as compliance with
R305-6-205.
(3) For purposes of this Section R305-6-105, notice of an
opportunity to comment is sufficient if it meets statutory
requirements. If there are no statutory requirements, notice of
an opportunity to comment is sufficient if it is posted on
DEQ's website, and if at least 30 days' notice is
provided.
R305-6-106. Effectiveness and Finality of Initial Orders and
Notices of Violation.
(1) Unless otherwise stated in the order or notice, an
Initial Order or a Notice of Violation is effective upon issuance
and, even if it is contested, remains effective unless a stay is
issued or the Initial Order or a Notice of Violation is
rescinded, vacated or otherwise terminated.
(2) The date of issuance of an Initial Order or a Notice
of Violation is the date the Initial Order or a Notice of
Violation is signed and dated.
(3) Failure to contest an Initial Order or a Notice of
Violation within the period provided in R305-6-202(8) and (9)
waives any right of administrative contest, reconsideration,
review or judicial appeal.
R305-6-107. Designation of Proceedings as Formal or
Informal.
(1) All proceedings to contest an Initial Order or a
Notice of Violation and all other proceedings identified in Part
4 of this Rule shall be conducted as formal proceedings except as
specifically provided in Part 4.
(2) The Presiding Officer in accordance with Section
63G-4-202(3) may convert proceedings that 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. In the event
the Presiding Officer is an ALJ, a decision to use informal
procedures must be approved by the Board.
R305-6-108. Form of Submissions.
(1) Hard copy versions of documents submitted under this
Rule shall ordinarily be printed on white paper that is 8-1/2 by
11 inches, with 1 inch margins and 12 point font. Double-sided
printing is encouraged but not required. Electronic documents
shall also be prepared for 8-1/2 by 11 inch paper, using 1 inch
margins and 12 point font.
(2) Requests for agency action, notices of agency action,
and responses shall include numbered paragraphs.
(3) Every filing shall contain the filing date in the
upper right hand corner or in the right hand box of a
caption.
R305-6-109. Service and Filing of Notices, Orders and Other
Papers.
(1)(a) Unless otherwise directed by the ALJ or other
Presiding Officer, and except as otherwise provided in this
Section R305-6-109, filing and service of all papers shall be
done solely by email. Filing and service under these proceedings
will be governed by R305-6-109(3).
(b) In the event the ALJ or other Presiding Officer
determines that it is inappropriate in a specific case to file
and serve all papers by email, the requirements of R305-6-109(4)
will govern. Those requirements may be modified by the ALJ or
other Presiding Officer.
(c) The provisions of R305-6-109(2) will also apply
regardless of whether filing and service are done by email
(R305-6-109(3)) or by traditional (R305-6-109(4)) service
methods.
(d) A party or prospective intervenor seeking to have
filing and service requirements governed by R305-6-109(2), such
as a person who does not have access to email, shall file and
serve the request as provided in R305-6-109(4). Once a request to
proceed under R305-6-109(4) is filed, the provisions of that
section shall apply to all future filing and service unless
otherwise ordered by the ALJ or other Presiding Officer.
(2) General Provisions Governing Filing and
Service.
(a) Unless otherwise directed by the ALJ or other
Presiding Officer, every filing shall be filed with the ALJ or
other Presiding Officer. If no ALJ or other Presiding Officer has
been appointed or otherwise identified in this Rule, every filing
shall be filed with the Administrative Proceedings Records
Officer.
(b) All papers that are required to be served shall also
be served on the Administrative Proceedings Records
Officer.
(c) Every filing shall be served upon, as
applicable:
(i) the Executive Secretary;
(ii) the attorney representing the Executive
Secretary;
(iii) the person who was the recipient of the notice of
violation or order being challenged;
(iv) each person who has been granted intervention or who
has filed a Petition to Intervene that has not been denied;
and
(v) the Administrative Proceedings Records Officer, as
provided in R305-6-109(3)(a) and (4)(b).
(d) A person, other than the Executive Secretary, who is
represented by an attorney or other representative, as provided
in R305-6-111, shall be served through the attorney or other
representative.
(e) Every filing shall include a certificate of service
that shows the date and manner of service on the persons
identified in R305-5-109(2).
(f) Regardless of whether a proceeding is governed by
R305-6-109(3) or R305-6-109(4), documents that are filed
expressly for the consideration of the Board, such as a
party's comments on a draft decision, shall be provided to
the Executive Secretary in hard copy for distribution to the
Board. The person filing the document shall provide to the
Executive Secretary one copy for each member of the
Board.
(g) The ALJ or other Presiding Officer shall determine
which parts of the Initial Record and the Adjudicative Record
shall be provided to the Board by hard copy and which shall be
provided by electronic copy.
(h) Service on a regulated entity at the entity's
last known address in the agency's file shall be deemed
service on that entity.
(i) A party shall not file requests for discovery,
responses to requests to discovery, deposition notices or other
discovery-related papers with the ALJ or other Presiding Officer
or the Administrative Proceedings Records Officer unless they are
included as exhibits to motions, briefs, testimony or similar
submissions, or unless otherwise ordered by the ALJ or other
Presiding Officer.
(3) Provisions governing electronic filing and
service.
(a) Documents shall be filed with the Administrative
Proceedings Records Officer at DEQAPRO@utah.gov. All submissions
to that address will be automatically acknowledged. It is the
submitter's responsibility to ensure that the submitter
receives the acknowledgment and, if no such acknowledgment is
received, to contact the Administrative Proceedings Records
Officer at (801) 366-0290 within one business day to ensure that
the filing was received.
(b) Service on all other parties and on persons who have
filed a Petition to Intervene that has not been denied shall be
on email addresses provided by those persons. If a submitter is
unable, after due diligence, to determine an email address for a
party or a person who has filed a Petition to Intervene, the
submitter shall provide service by traditional means, as provided
in R305-6-109(4).
(c) A text document served by email shall be submitted as
a searchable PDF document. If a signed document cannot be scanned
in a searchable format so that the scanned document includes the
signature, the submitter shall file the signature page
separately. The signature page may be submitted as a scanned,
non-searchable page, or the submitter may file and serve a hard
copy of the signature page as described in
R305-6-109(4).
(d) If a document served by email is one that has been
created by the person serving the document in the course of the
adjudicative proceeding, it shall be provided in a searchable
format. If a single document cannot include both searchable text
and a scanned signature (as required by R305-6-109(3)(d)), the
server may submit two PDF documents: one with the scanned
signature, and one unsigned but searchable and otherwise
identical to the signed document.
(e) The ALJ or other Presiding Officer may order any
submission to be provided in a searchable format.
(f) Large emails (5 Mb or more) may not be accepted by
some email systems. It shall be the responsibility of a person
sending a large email to ensure that it has been received by all
parties, e.g., by telephoning or by sending a separate
notification email.
(g) Photographic or other illustration documents served
by email shall be submitted as:
(i) a PDF document; or
(ii) a "JPEG" document.
(h) Documents that are difficult to file or serve by
email because of their size or form may be filed or served on a
CD, DVD, flash drive, or other commonly used digital storage
medium. A document may also be provided in hard copy form if it
is impracticable to copy the document electronically. Filing and
service of such documents shall be as provided in
R305-6-109(4).
(i) A party shall provide a paper copy of any document,
including signed documents, upon request by the ALJ or other
presiding officer.
(j) A document is searchable if words in the document can
be found using the "Find" or similar function on the
software that is routinely used to display the document.
(4) Provisions governing traditional filing and
service.
(a) Filing and service shall be made:
(i) by United States mail, postage pre-paid;
(ii) by hand-delivery;
(iii) by overnight courier delivery; or
(iv) by the Utah State Building Mail system, if the
sender and receiver are both state employees.
(b) Documents to be filed with the Administrative
Proceedings Records Officer shall be submitted to one of these
addresses:
(i) By U.S. Mail: Administrative Proceedings Records
Officer, Environment Division, Utah Attorney General's
Office, PO Box 140873, Salt Lake City Utah 84114-0873;
or
(ii) By hand or commercial delivery: Administrative
Proceedings Records Officer, Environment Division, Utah Attorney
General's Office, 160 East 300 South, 5th Floor, Salt Lake
City Utah 84111.
(c)(i) A document that is filed or served by U.S Mail
shall be considered filed or served on the date it is mailed. A
document that is filed or served by Utah State Building Mail
shall be considered filed or served on the date it is placed in a
Utah State Building Mail bin.
(ii) R305-6-109(4)(c)(i) does not apply to a Request for
Agency Action or a Petition to Intervene in an agency action. To
be timely, those documents must be received for filing within 30
calendar days of the issuance of the Initial Order or a Notice of
Violation. See R305-6-202.
R305-6-110. Computation and Extensions of Time.
(1) A business day is any day other than a Saturday,
Sunday or legal holiday.
(2) Computing time.
(a) If a period is stated in calendar days:
(i) exclude the day of the event that triggers the
period;
(ii) count every day, including intermediate Saturdays,
Sundays, and legal holidays; and
(iii) include the last day of the period, but if the last
day is a Saturday, Sunday, or legal holiday, the period continues
to run until the end of the next day that is not a Saturday,
Sunday, or legal holiday.
(b) If a period is stated in business days:
(i) exclude the day of the event that triggers the
period; and
(ii) count every business day.
(c) If a document is not served by email, any time for
responding to the document shall be extended by three business
days.
(3) Extensions of Time.
(a) Except as otherwise provided by statute or this Rule,
the ALJ or other Presiding Officer may approve extensions of any
time limits established by this rule, and may extend time limits
adopted in schedules established under R305-6-207.
(b) R305-6-202(9) governs extensions of time associated
with filing Requests for Agency Action and R305-6-205(7) governs
extensions of time associated with filing Petitions to
Intervene.
(c) The ALJ or other Presiding Officer may also postpone
hearings upon motion from the parties, or upon the ALJ's or
Presiding Officer's own motion. For matters before a board,
the Board Chair may act as Presiding Officer for purposes of this
paragraph. In the event the Board Chair is not available, the
Executive Director may act as Presiding Officer for purposes of
this paragraph.
R305-6-111. Appearances and Representation.
(1) A party or a prospective intervenor to a proceeding
may be represented:
(a) by an individual if the individual is the party;
or
(b) by a designated officer if the party is a person
other than an individual.
(2) Any party may be represented by legal counsel. An
attorney who is not currently a member in good standing of the
Utah State Bar must present a written or oral motion for
admission pro hac vice made by an active member in good standing
of the Utah State Bar. Communication with and service on local
counsel shall be deemed to be communication with and service on
the party so represented.
R305-6-112. Proceeding Conducted by Teleconference or Other
Electronic Means.
(1) If approved by the ALJ or other Presiding Officer, a
party or prospective intervenor may participate in any hearing or
other proceeding by teleconference or other electronic means if
the ALJ or other Presiding Officer determines that it will not
unfairly prejudice the rights of the other participants.
(2) Notwithstanding R305-6-112(1), participation by
teleconference or other electronic means is not permitted for an
evidentiary hearing or dispositive motion hearing.
R305-6-113. Settlement.
The parties may settle all or any portion of an action at
any time during an administrative proceeding through a settlement
agreement, an administrative settlement order, or a proposed
judicial consent decree. Upon notice by the Executive Secretary
that there is a proposed settlement that will be subject to a
public comment period, the ALJ or other presiding officer shall
stay an administrative proceeding, in whole or in part, until the
end of that comment period and for an additional 30 calendar days
in order to allow the Executive Secretary to make a final
settlement determination.
R305-6-114. Modifying Requirements of Rules.
(1) Except as provided in R305-6-114(2), the requirements
of these rules may be modified by order of the ALJ or other
Presiding Officer for good cause.
(2) The requirements for timely filing a Request for
Agency Action under R305-6-202(8) and (9), and a Petition to
Intervene under R305-6-205(3), (4) and (7) may not be
modified.
R305-6-115. Disqualification of an ALJ, a Board Member or
Other Presiding Officer.
(1) An ALJ, Board member 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:
(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 or 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 or she has any other interest that
could be substantially affected by the outcome of the proceeding;
or
(e) Is likely to be a material witness in the
proceeding.
(2) A board member who attends an evidentiary or other
hearing in a matter shall be recused from participating in any
proceeding of the board as a whole regarding the same
matter.
(3) An ALJ, Board member or other Presiding Officer is
also subject to disqualification under principles of due process
and administrative law.
(4) These requirements are in addition to any
requirements under the Utah Public Officers' and
Employees' Ethics Act, Utah Code Ann., Title 67, Chapter
16.
(5) Motions for Disqualification. Any motion for
disqualification of an ALJ, Board member or other Presiding
Officer shall be made first to the ALJ, Board or other Presiding
Officer. If the Presiding Officer is not the final decisionmaker,
a party may seek review of the determination of the ALJ or other
Presiding Officer under R305-6-217.
R305-6-116. Limitation on Authority Under Rule.
Nothing in this Rule constitutes a grant of authority for
any person other than the recipient to challenge a Notice of
Violation or to initiate an action to challenge the agency's
enforcement either generally or in a specific situation. See
UAPA, Sections 63G-4-102(8) and 63G-4-201(3).
R305-6-117. No Limitation on Authority to Bring Action.
(1) Nothing in this Rule shall be read as a limitation
either of the agency's statutory authority to bring an
emergency proceeding or a judicial proceeding under UAPA, Section
63G-4-502 or the Department of Environmental Quality Code, Utah
Code Ann. Title 19, or of the administrative procedures the
agency may use for an emergency proceeding under those
authorities.
(2) Failure in this Rule to provide administrative
procedures for an administrative action that is authorized by
statute shall not be read as a limitation of the agency's
authority to bring that action.
R305-6-118. Procedures Not Addressed.
In the event there are authorities or situations for
which procedures are not prescribed by these rules, the ALJ or
other Presiding Officer shall, for a specific case, identify
analogous procedures or other procedures that will apply. Such
proceedings shall be conducted formally under UAPA.
R305-6-201. Purpose of Part.
Part 2 of this Rule (R305-6-201 through 219) specifies
procedures to be used in adjudicative proceedings.
R305-6-202. Requests for Agency Action and Contesting an
Initial Order or Notice of Violation.
(1) Procedure. Initial Orders and Notices of Violation
may be contested by filing a written Request for Agency Action
with the Executive Secretary or the Executive Director, as
specified in Part 4 of this Rule and at the address specified in
that Part. The Request for Agency Action shall also be served as
provided in R305-6-109.
(2) A Request for Agency Action may also be filed to
initiate agency action as provided in Part 4.
(3) Any Request for Agency Action is governed by and
shall meet all of the requirements of UAPA, Section
63G-4-201(3)(a) and (3)(b).
(4) As provided in Section 63G-4-201(3)(a), a Request for
Agency Action shall be in writing and signed by the person making
the Request for Agency Action, or by that person's
representative, and shall include:
(a) the names and addresses of all persons to whom a copy
of the request for agency action is being sent;
(b) the agency's file number or other reference
number, if known;
(c) the date that the request for agency action was
mailed;
(d) a statement of the legal authority and jurisdiction
under which agency action is requested;
(e) a statement of the relief or action sought from the
agency;
(f) a statement of the facts and reasons forming the
basis for relief or agency action; and
(5) In addition to the information required by
63G-4-201(3)(a) and R305-6-202(4), a Request for Agency Action
shall include the requestor's name, address and email
address, if any.
(6) It is not sufficient under Section 63G-4-201(3)(a) to
file a request for a hearing or a general statement of
disagreement.
(7) If a Request for Agency Action is made by a person
other than the recipient of an order, the Request for Agency
Action shall also include a Petition to Intervene that meets the
requirements of Section 63G-4-207 and R305-6-205.
(8) To be timely, a Request for Agency Action made to
contest an Initial Order or a Notice of Violation shall be
received for filing, by email or at the address specified in Part
4 of this Rule, within 30 calendar days of the issuance of the
Initial Order or a Notice of Violation.
(9) Extension of Time to File Request for Agency
Action.
(a) The time for filing a Request for Agency Action may
be extended by stipulation of the parties. Any such stipulation
shall be filed with the same individual with whom a Request for
Agency Action would be filed as specified in Part 4, before the
expiration of the 30 days specified in R305-6-202(8).
(b) The time for filing a Request for Agency Action may
be extended by order of the Board or other final decisionmaker.
Any motion for extension shall be filed before the expiration of
the 30 days specified in R305-6-202(8).
(c) A person that is not a party and that is seeking
extensions for filing a Request for Agency Action and a Petition
to Intervene may file a single stipulation or motion that
complies with this R305-6-202(9) and with R305-6-205(7).
(d) Parties are encouraged to use extensions to resolve
disputes through informal settlement.
R305-6-203. Notice of Further Proceedings and Response to
Request for Agency Action.
(1) In actions initiated by the agency, the agency shall
issue a Notice of Agency Action in accordance with Section
63G-4-201(2).
(2)(a) In actions initiated by a Request for Agency
Action, the ALJ or other Presiding Officer shall issue a Notice
of Further Proceedings in accordance with Section 63G-4-201(3)(d)
and (e).
(b) If a 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.
(3) In responding to a Request for Agency Action
challenging a Notice of Violation and Order, the Executive
Secretary may, as appropriate, simply reassert information
contained in the challenged Notice of Violation and
Order.
R305-6-204. Parties.
(1) For a proceeding that follows an Initial Order or
Notice of Violation, the following persons are parties to an
adjudicative proceeding:
(a) the person to whom the Initial Order or Notice of
Violation was directed, such as a person who submitted a permit,
license or plan approval application that was approved or
disapproved by an Initial Order;
(b) The Executive Secretary of the Board who issued an
Initial Order or Notice of Violation; and
(c) All persons to whom the Board or other final
decisionmaker has granted intervention under R305-6-205;
and
(2) For a proceeding that does not follow an Initial
Order or Notice of Violation, the following persons are parties
to an adjudicative proceeding, as appropriate:
(a) the person to whom a Notice of Agency Action or other
Order was directed;
(b) All persons for whom intervention has been granted
under R305-6-205; and
(c) If the Executive Secretary is the Presiding Officer,
other persons within DEQ as designated by the Presiding
Officer.
(3) A person may be permitted by the ALJ or other
Presiding Officer to enter an appearance as amicus curiae (friend
of the court), subject to conditions established by the ALJ or
other Presiding Officer.
R305-6-205. Intervention.
(1) A Petition to Intervene shall meet the requirements
of Section 63G-4-207.
(2) Except as provided in R305-6-205(4), the timeliness
of a Petition to Intervene under Section 63G-4-207 shall be
determined by the ALJ or other Presiding Officer under the facts
and circumstances of each case.
(3) If an ALJ or other Presiding Officer has been
appointed to make a recommended decision to the Board or other
final decisionmaker, a recommended decision denying intervention
shall be forwarded to the Board or other final decisionmaker for
a final determination. A decision by the ALJ or other Presiding
Officer to grant intervention may be considered by the Board or
other final decisionmaker under R305-6-217 (Interlocutory Review)
if the standards specified in that provision are met.
(4) A person who is not a party to a proceeding but who
seeks to challenge an Initial Order of the Executive Secretary
that has not been challenged by a party shall file a Petition for
Intervention with a Request for Agency Action. To be timely, any
such Petition to Intervene shall be received for filing, by email
or at the address specified in Part 4 of this Rule, within 30
calendar days of the issuance of the Initial Order or Notice of
Violation.
(5) Any response to a Petition to Intervene shall be
filed within 20 calendar days of the date the Petition was
filed.
(6) Petitions to Intervene shall be filed at the same
address as provided for Requests for Agency Action in Part 4 of
this Rule. Service shall be as provided in R305-6-109, except
that the Petition must be received for filing by the
deadline.
(7) Extension of Time to File Petition to
Intervene.
(a) The 30 day deadline for filing a Petition to
Intervene under R305-6-205(4) may be extended by stipulation of
the parties and the prospective intervenor. Any such stipulation
shall be filed within 30 calendar days of the issuance of the
Initial Order or Notice of Violation.
(b) The 30 day deadline for filing a Petition to
Intervene under R305-6-205(4) may be extended by order of the
Board or other final decisionmaker. Any motion for extension
shall be filed with the same individual with whom a Request for
Agency Action would be filed as specified in Part 4, within 30
calendar days of the issuance of the Initial Order or Notice of
Violation.
(c) A person that is not a party and that is seeking
extensions for filing a Request for Agency Action and a Petition
to Intervene may file a single stipulation or motion that
complies with R305-6-202(9) and with this R305-6-205(7).
(d) Parties are encouraged to use extensions to resolve
disputes through informal settlement.
R305-6-206. Procedures for Informal Proceedings.
(1) Procedures for Informal Proceedings are governed by
Section 63G-4-203.
(2) No hearing or other conference is required for an
informal proceeding. If a hearing is held, the parties shall be
permitted to testify, present evidence and comment on issues. A
hearing may be conducted as a meeting rather than using
trial-type procedures.
(3) Discovery and intervention are not available in an
informal proceeding. The presiding officer may issue a subpoena
or other order to compel the production of necessary
evidence.
R305-6-207. Pre-hearing Conferences, Proceedings and
Order.
(1) The ALJ or other Presiding Officer may hold one or
more pre-hearing conferences for the purposes of: identifying
and, if possible, narrowing the issues that will be considered at
a hearing; determining whether an issue will be considered at an
evidentiary hearing or a hearing to rule on a dispositive motion;
establishing schedules for disclosures and the filing of motions,
testimony and pre-hearing memoranda; determining the status of
the litigation; considering stipulations of fact or law; and
considering any other pre-hearing matters. The ALJ or other
Presiding Officer shall issue pre-hearing orders memorializing
the determinations made about these matters.
(2) The ALJ or other Presiding Officer may at any time
order a party to make a more clear statement of the issues the
party intends to raise at a hearing. The ALJ or other Presiding
Officer may also order a party to respond to questions about
those issues for the purpose of clarifying the issues. The other
parties to the proceeding may, within 10 business days of the
date a response to the order is served, file and serve comments
on the response.
(3) The ALJ or other Presiding Officer may:
(a) require the parties to submit proposed schedules for
the proceeding; and
(b) change deadlines and page limits for submissions
established by this Rule.
(4) The parties may request the ALJ or other presiding
officer hold a conference for the purpose of addressing the
matters described in R305-6-207(1).
R305-6-208. Agency Record.
(1) The final agency record shall consist of:
(a) An Initial Record relating to Initial Orders and
Notices of Violation, further described in
R305-6-208(2);
(b) An Adjudicative Record consisting of:
(i) All documents filed with the ALJ or other Presiding
Officer, and with the Administrative Records Officer;
(ii) All orders and other written communications from the
ALJ or other Presiding Officer;
(iii) All transcripts of hearings and exhibits proffered
or received into evidence during a hearing; and
(iv) Other documents as determined by the ALJ or other
Presiding Officer.
(2)(a) The Executive Secretary shall prepare an Initial
Record, which shall consist of background documents for the
matter that shall be deemed to be authenticated for purposes of
the hearing and motions, and may be introduced as evidence by any
party. The Initial Record is not intended to take the place of
discovery or of the proffer by parties of documentary
evidence.
(b) The Initial Record shall be indexed and compiled in
chronological order. Each page of the Initial Record shall be
numbered for ease of reference. A hard copy and an electronic
copy of the Initial Record shall be filed with the ALJ or other
Presiding Officer. An electronic copy of the Initial Record shall
be served as provided in R305-6-109(3). Electronic records shall
meet the requirements for electronic filing and service in
R305-6-109(3).
(c) The Initial Record document index shall include the
Initial Order or Notice of Violation being challenged, any
Request for Agency Action, any responsive pleading, and any
relevant:
(i) permit, plan approval or license;
application;
(ii) draft order (such as a permit) that was released for
public comment;
(iii) public comments received;
(iv) comment response document; and
(v) final permit.
(d) Documents other than those specified in
R305-6-208(2)(c) may be included in the Initial Record only upon
the agreement of the parties. Documents that the parties cannot
agree upon may be submitted in the course of the proceeding.
Failure of a party to object to inclusion of a document in the
Initial Record shall be deemed to be agreement to its inclusion
in the initial record and to its authenticity.
(e) If many of the documents or large parts of the
documents that would ordinarily constitute the Initial Record are
irrelevant to the issues raised in the proceeding, the Executive
Secretary may propose a more limited Initial Record that does not
include the documents specified in R305-6-208(2)(c). If a matter
involves a multi-volume permit, for example, the Executive
Secretary may propose to exclude the parts of the permit that
relate to emergency response if the dispute is about waste
sampling.
(f) Analytical analyses of samples documented in the
Initial Record are deemed to be accurate unless specifically
objected to no later than 15 calendar days before the date the
Executive Secretary's preliminary witness lists are
due.
(3) Procedure for preparing Initial Record.
(a) Unless the ALJ or Presiding Officer directs
otherwise, within 40 calendar days after the date of a Notice of
Further Proceedings, the Executive Secretary shall compile a
draft index of documents in the Initial Record as described in
paragraph (2)(c), and shall provide the list to all other
parties. Each party may, within fifteen calendar days of the date
the draft index was served, propose to add documents to or delete
documents from the index.
(b) The Executive Secretary shall consider the other
parties' submissions and shall, within ten calendar days of
the date the submissions were served, file an Initial
Record.
(c) Parties may file objections to the Initial Record
within 10 business days of the date of the Initial Record. The
Executive Secretary may respond to objections within 10 business
days of service of the objections.
(d) The ALJ or other Presiding Officer shall consider
objections filed and may order changes in the Initial
Record.
R305-6-209. Discovery and Disclosure.
(1) Informal discovery by agreement of the parties is
preferred. All parties shall have access to information contained
in the agency's records unless the records are not required
to be disclosed under the Government Records Access and
Management Act, Title 63G, Chapter 2, as modified by Section
19-1-306 of the Utah Environmental Quality Code.
(2) Formal discovery is allowed in a matter by agreement
of the parties involved in the formal discovery or if so directed
by the ALJ or other Presiding Officer in a formal proceeding. The
ALJ or other Presiding Officer may order formal discovery when
each of the following elements is present:
(a) informal discovery is inadequate to obtain the
information required;
(b) there is no other available alternative that would be
less costly or less burdensome;
(c) the formal discovery proposed is not unduly
burdensome;
(d) the formal discovery proposed is necessary for the
parties to properly prepare for the hearing;
(e) the formal discovery does not seek a party's
position regarding a question of law or about the application of
facts to law that could be addressed in a motion to dismiss or a
motion for summary judgment; and
(f) the formal discovery proposed will not cause
unreasonable delays.
(3)(a) Except as otherwise provided in this Section
R305-6-209, the time periods, limitations and other requirements
for discovery in the Utah Rules of Civil Procedure shall apply
unless otherwise ordered by the ALJ or other Presiding Officer
after consideration of the specific formal discovery
proposed.
(b) No initial disclosure shall be required as provided
in Utah Rules of Civil Procedure Rule 26(a)(1)(B) through
(D).
(4) Each party shall provide to the other parties copies
of any documents it intends to introduce as provided in
R305-6-212(1). This information shall be provided and updated in
accordance with a schedule established in the pre-hearing
order.
R305-6-210. Subpoenas.
(1) A party requesting an administrative subpoena must
prepare it and submit it to the Administrative Proceedings
Records Officer for the signature of the ALJ or other Presiding
Officer. Each administrative subpoena form shall have the
following statement prominently displayed on the form: "This
Administrative Subpoena is issued under the authority of the Utah
Administrative Procedures Act, Section 63G-4-205(2). If you
believe that this subpoena is inappropriate, you may object. The
standards of Utah Rules of Civil Procedure, Rule 45, will be used
to determine whether a subpoena is appropriate. File any
objection with (requestor to insert title and address of ALJ or
other Presiding Officer). See also Utah Admin. Code
R305-6-210."
(2) Service. Service of the subpoena shall be made by the
party requesting it in a manner consistent with the Utah Rules of
Civil Procedure, Rule 45(b).
(3) Objection. A party or other person served with a
subpoena may file an objection for the reasons specified in the
Utah Rules of Civil Procedure, Rule 45. In response, the party
that served the subpoena may file a Motion to Compel. The ALJ or
other Presiding Officer shall consider the Motion to Compel and
require compliance with the existing subpoena, issue a new
subpoena on specified conditions, or quash the subpoena.
R305-6-211. Motions.
(1) Ruling on Motions. Motions may be made by written
motion at or before a hearing, or orally during a hearing. Each
motion shall include the grounds upon which it is based and the
relief or order sought. Copies of written motions shall be filed
and served in accordance with R305-6-109.
(2) Responses to motions shall be filed within 15
business days of service of the Motion.
(3) Memoranda in support of or opposition to a
dispositive motion may not exceed 25 pages. Memoranda in support
of or in opposition to other motions may not exceed 15 pages.
This limit shall not include face sheet, table of contents,
statements of issues and facts, or exhibits.
(4) A reply to a memorandum in opposition to a motion may
be filed within seven business days of service of the memorandum
in opposition, and is limited to eight pages. A reply memorandum
shall be limited to responding to matters raised in the
memorandum in opposition.
(5) Deadlines and page limits may be modified by order of
the ALJ or other Presiding Officer.
(6) When appropriate, parties are encouraged to file
dispositive motions, such as a Motion for Summary Judgment, a
Motion to Dismiss or a Motion for Judgment on the Pleadings.
Parties are encouraged to file dispositive motions no later than
45 calendar days prior to the scheduled hearing.
R305-6-212. Pre-Hearing Briefs and Other Pre-Hearing
Submissions.
(1) At least 25 business days before a scheduled hearing,
the parties shall exchange proposed exhibits and thereafter shall
meet to attempt to stipulate to the admission of
exhibits.
(2) At least 13 business days before a scheduled hearing,
the parties shall jointly file and serve any stipulation
regarding admission of exhibits and shall file and serve copies
of all of its exhibits that are subject to a stipulation.
Electronic copies of the exhibits, as described in R305-6-109(3),
shall be filed with the ALJ or other Presiding Officer, and
served on other parties. Electronic and hard copies of the
exhibits shall be served on the Administrative Proceedings
Records Officer.
(3) Unless otherwise ordered by the ALJ or other
Presiding Officer, each party may, but is not required to file,
at least 10 business days before a scheduled hearing:
(a) A pre-hearing brief, limited to 25 pages, not
including exhibits or any statement of facts; and
(b) Any motions related to the way the hearing will be
conducted, or to the admission of exhibits and other evidence
that will be presented at the hearing.
(4) A party may object to an exhibit when it is
introduced in a hearing, except that no party may object
to:
(a) the authenticity of a record included in the Initial
Record;
(b) the accuracy of analytical analysis of samples
documented in the Initial Record, except as provided in
R305-6-208(2)(f).
(5)(a) Any party may file testimony and evidence using
pre-filed testimony of a witness, unless otherwise ordered by the
ALJ or other Presiding Officer.
(b) For lengthy or complex proceedings, pre-filed
testimony is preferred and may be required by the ALJ or other
Presiding Officer.
(c) Pre-filed testimony shall be submitted at least 13
business days before a scheduled hearing.
R305-6-213. Hearings.
(1) The ALJ or other Presiding Officer shall govern 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 while affording to all parties the
opportunity to present evidence, argue, respond, conduct
cross-examination, and submit rebuttal evidence. The ALJ or other
Presiding Officer shall also establish the order of presentation
at the hearing.
(2)(a) All hearings shall, at a minimum, be recorded at
the agency's expense using audio recording devices. The
agency may elect instead to use a court reporter.
(b) Any party may request that the agency use a court
reporter for the hearing, which request shall be granted by the
ALJ or other Presiding Officer. Unless otherwise ordered by the
ALJ or other Presiding Officer, the requesting party shall bear
the cost associated with these requests. Any such requests shall
be submitted to the ALJ or other Presiding Officer at least eight
business days before the scheduled hearing.
(3) Evidence.
(a) Except as otherwise stated in this rule, formal
proceedings shall be conducted in accordance with the Utah Rules
of Evidence.
(b) Every party to an adjudicative proceeding has the
right to introduce evidence, subject to the Utah Rules of
Evidence. The evidence may be oral or written, real or
demonstrative, direct or circumstantial.
(i) The ALJ or other Presiding Officer may admit any
reliable evidence possessing probative value which would be
accepted by a reasonably prudent person in the conduct of his
affairs.
(ii) The ALJ or other Presiding Officer may admit hearsay
evidence. However, no finding of fact may be based solely on
hearsay evidence unless that evidence is admissible under the
Utah Rules of Evidence.
(iii) If a party attempts to introduce evidence into a
hearing, and it is excluded, the party may proffer the excluded
testimony or evidence to allow any reviewing authority to pass on
the correctness of the ruling of exclusion.
(c)(i) Except as provided in R305-6-213(3)(c)(ii), all
witnesses who have provided pre-filed testimony shall be present
at the hearing unless the parties agree that the witness may be
excused. A witness for whom pre-filed testimony has been
submitted shall be allowed to give a brief summary of that
testimony, and shall then be made available for
cross-examination.
(ii) The pre-filed testimony of any witness who is not
present at the hearing will be treated as other hearsay evidence
as provided in 63G-4-206(1)(c) and 63G-4-208(3).
(d) Oral testimony at a formal hearing will be sworn. The
oath will be administered by the reporter, the ALJ or other
Presiding Officer. Anyone testifying falsely under oath may be
subject to prosecution for perjury in accordance with the
provisions of Sections 76-8-502 and 76-8-503.
R305-6-214. Post-Hearing Submissions.
Unless otherwise ordered by the ALJ or other Presiding
Officer, not later than 13 business days after a hearing, each
party may, but is not required to submit:
(1) A post-hearing brief, limited to 10 pages, not
including exhibits; and
(2) Proposed findings of fact and conclusions of
law.
R305-6-215. Recommended Decisions and Orders.
(1) If the ALJ or other Presiding Officer is not the
final decisionmaker for a matter, the ALJ or other Presiding
Officer shall prepare a recommended decision that includes
written findings of fact and written conclusions of law, and that
meets the requirements of Section 63G-4-208. At the time the ALJ
or other Presiding Officer sends the recommended decision to the
final decisionmaker, it shall be served on the parties.
(2)(a) Any party may provide comments to the final
decisionmaker on the recommended decision.
(b) Unless otherwise ordered by the final decisionmaker,
comments shall be filed with the final decisionmaker within 10
business days of the date the recommended order is issued.
Comments shall cite to the specific parts of the record which
support the comments and shall be limited to 20 pages unless an
enlargement of pages is approved by the presiding officer
responsible for the final decision.
(3) The Board Chair may act as Presiding Officer for
purposes of R305-6-215(2)(b). In the event the Board Chair is not
available, the Executive Director may act as Presiding
Officer.
(4)(a) The final decisionmaker shall issue an order that
includes written findings of fact and written conclusions of law,
and that meets the requirements of Section 63G-4-208.
(b) If the proceeding is subject to the requirements of
Section 19-1-301(6)(a), the Board may approve, approve with
modifications, or disapprove a proposed dispositive action,
including findings of facts and conclusions of law, submitted by
the ALJ.
R305-6-216. Consideration by the Board or Other Final
Decisionmaker.
(1) If an ALJ or other Presiding Officer submits a
recommended decision to the Board or other final decisionmaker,
the Parties shall be granted time before the Board or other final
decisionmaker to present oral argument regarding the recommended
decision.
(2) The final decisionmaker will establish the time
allowed for each party.
(3) If the final decisionmaker is a board, the Board
Chair may act as the Presiding Officer for purposes of issuing an
order establishing the amount and division of time and the order
of presentation. In the event the Board Chair is not available,
the Executive Director may act as Presiding Officer.
R305-6-217. Interlocutory Review.
(1) This provision applies to proceedings where an ALJ or
other Presiding Officer has responsibility for the evidentiary
proceedings, but the Board or a different Presiding Officer has
responsibility for the final determination.
(2) Ordinarily, a party may challenge an order issued by
the ALJ or other Presiding Officer only after the ALJ or other
Presiding Officer has made a final recommended decision. However,
a party may request interlocutory consideration of an order
before that time if a ruling that is alleged to be in error could
not be corrected through a challenge to the final recommended
decision (e.g., a ruling denying privileged status to records),
or in other situations where it may materially advance the
termination of the proceeding. The final decisionmaker's
determination to hear an interlocutory request to overturn an
order is discretionary.
(3) A determination that a document is not privileged,
and any determination relative to a motion for stay under
R305-6-218 will ordinarily be considered to meet the requirements
of R305-6-217(2), but are not exhaustive of the determinations
that may be considered to meet the requirements of
R305-6-217(2).
R305-6-218. Stays of Orders.
(1) Stay of Orders Pending Administrative
Adjudication.
(a) A party seeking a stay of an Initial Order during an
adjudicative proceeding shall file a motion with the ALJ or other
Presiding Officer.
(b) An ALJ or other Presiding Officer shall grant a stay
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 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 adjudication.
(2) The standards specified in R305-6-218(1) shall apply
to any interlocutory review of an order regarding a requested
stay of an Initial Order.
(3) Stay of the Order Pending Judicial Review.
(a) A party seeking a stay of a final order by the Board
or other final decisionmaker shall file a motion with the Board
or other final decisionmaker.
(b) The standards specified in R305-6-218(1)(b) shall
apply to any such request.
(4) If granted, a stay suspends the challenged order for
the period as directed by the ALJ or other Presiding
Officer.
R305-6-219. Default.
(1) A party may be found in default in accordance with
Section 63G-4-209. The default order shall include a statement of
the grounds for default and shall be filed and served on all
parties.
(2) A defaulted party may seek to have the default set
aside according to procedures set forth in the Utah Rules of
Civil Procedure.
R305-6-301. Purpose of Part.
Part 3 of this Rule (R305-6-301 through 303) governs
requests for declaratory and emergency actions.
R305-6-302. Declaratory Orders.
(1) For all matters over which the Executive Secretary
has Initial Order authority as described in Part 4 of this Rule,
any Request for a Declaratory Order shall be addressed first to
the Executive Secretary. For all other matters, a Request for
Declaratory Order shall be filed with the Presiding Officer
specified in Part 4 of this Rule.
(2) Any person who seeks to obtain a declaratory order
shall file a Request for Declaratory Order that meets these
requirements. The request shall:
(a) Clearly designate the Request for Agency Action as
one requesting a declaratory order;
(b) Identify the statute, department or division rule or
order to be reviewed;
(c) Describe in detail the situation or circumstances in
which the applicability of the statute, rule or order is to be
reviewed;
(d) Describe the Requestor's reason or need for the
order;
(e) Set out a proposed order;
(f) As appropriate, address with specificity each of the
circumstances described in R305-6-302(4) and demonstrate that the
condition does not apply.
(3) Failure to submit a complete Request for Declaratory
Order is grounds for denying the Request.
(4) The following classes of circumstances are exempt
from declaratory order, as provided in Section
63G-4-503(3)(b):
(a) Circumstances in which a declaratory order would
substantially prejudice the rights of a person who would be a
necessary party under the Utah Rules of Civil Procedure, unless
the Petitioner has that person's consent in writing;
(b) Circumstances in which the person requesting the
declaratory order does not have standing;
(c) Circumstances in which informal agency opinion or
other agency action is sufficient to meet the need described in
the Petition;
(d) Circumstances in which questions have already been
adequately addressed by the agency in an order or in informal
advice;
(e) Circumstances that raise questions that are clear and
do not warrant an order;
(f) Circumstances that are more properly addressed by a
statutory change or rulemaking proceedings;
(g) Circumstances that arise out of pending or
anticipated litigation in a civil, criminal or administrative
forum and that are more properly addressed by that
forum;
(h) Circumstances under which the critical facts are not
clear and may be altered by subsequent events, or the issues are
otherwise not yet ripe for consideration;
(i) Circumstances under which the person making the
request is unable to show that real risk to that person will be
confronted if the intended course of conduct is taken;
and
(j) Circumstances involving use of the agency's
emergency authority.
(5) If no declaratory order or order setting the matter
for hearing is issued within 60 calendar days of the Request, the
Request shall be deemed denied.
(6) An Initial Order of the Executive Secretary on a
Request for Declaratory Action may be challenged as described in
R305-6-202. The matter may be resolved using the procedures
specified in Part 2 of this Rule, or other procedures specified
by the Presiding Officer.
R305-6-303. Emergency Actions.
Emergency orders may be issued as provided in Section
63G-4-502. See R305-6-117.
R305-6-401. Purpose of Part.
Part 4 of this Rule (R305-6-401 through 423) provides
definitions and other provisions that will govern the way the
procedures specified in Part 3 of this Rule will apply to
adjudication brought under specific statutes. The following
matters are addressed:
(1) Definitions;
(2) Identification of Initial Orders and Notices of
Violation that are exempt from UAPA requirements;
(3) Where a Request for Agency Action and other
submissions should be filed; and
(4) Whether proceedings will be conducted formally or
informally.
R305-6-402. Addresses for Filing.
(1) Documents submitted to the Executive Director of the
Department of Environmental Quality shall be sent to: Executive
Director, Department of Environmental Quality, P.O. Box 144810,
Salt Lake City, Utah 84114-4810. Alternatively, these documents
may be delivered by courier or hand delivery to: Executive
Director, Department of Environmental Quality, 195 North 1950
West, 4th Floor, Salt Lake City, Utah 84116-3097.
(2) Documents submitted to the Executive Secretary of the
Air Quality Board shall be sent to: Executive Secretary, Utah Air
Quality Board, Division of Air Quality, P.O. Box 144820, Salt
Lake City, Utah 84114-4820. Alternatively, these documents may be
delivered by courier or hand delivery to: Executive Secretary,
Utah Air Quality Board, Division of Air Quality, 195 North 1950
West, 4th Floor, Salt Lake City, Utah 84116-3097.
(3) Documents submitted to the Executive Secretary of the
Drinking Water Board shall be sent to: Executive Secretary,
Drinking Water Board, Division of Drinking Water, P.O. Box
144830, Salt Lake City, Utah 84114-4830. Alternatively, these
documents may be delivered by courier or hand delivery to:
Executive Secretary, Drinking Water Board, Division of Drinking
Water, 195 North 1950 West, 3rd Floor, Salt Lake City, Utah
84116-3097.
(4) Documents submitted to the Executive Secretary of the
Radiation Control Board shall be sent to: Executive Secretary,
Radiation Control Board, Division of Radiation Control, P.O. Box
144850, Salt Lake City, Utah 84114-4850. Alternatively, these
documents may be delivered by courier or hand delivery to:
Executive Secretary, Radiation Control Board, Division of
Radiation Control, 195 North 1950 West, 3rd Floor, Salt Lake
City, Utah 84116-3097.
(5) Documents submitted to the Executive Secretary of the
Solid and Hazardous Waste Control Board (but not including
documents submitted under the Underground Storage Tank Act, Part
4 of Section 19-6 or the Illegal Drug Operations Site Reporting
and Decontamination Act, Part 9 of 19-6) shall be sent to:
Executive Secretary, Solid and Hazardous Waste Control Board,
Division of Solid and Hazardous Waste, P.O. Box 144880, Salt Lake
City, Utah 84114-4880. Alternatively, these documents may be
delivered by courier or hand delivery to: Executive Secretary,
Solid and Hazardous Waste Control Board, Division of Solid and
Hazardous Waste, 195 North 1950 West, 2nd Floor, Salt Lake City,
Utah 84116-3097
(6) Documents submitted to the Executive Secretary of the
Solid and Hazardous Waste Control Board pursuant to Parts 4 and 9
of Section 19-6 shall be sent to: Executive Secretary, Solid and
Hazardous Waste Control Board, Division of Environmental Response
and Remediation, P.O. Box 144840, Salt Lake City, Utah
84114-4840. Alternatively, these documents may be delivered by
courier or hand delivery to: Executive Secretary, Solid and
Hazardous Waste Control Board, Division of Environmental Response
and Remediation, 195 North 1950 West, 1st Floor, Salt Lake City,
Utah 84116-3097.
(7) Documents submitted to the Executive Secretary of the
Water Quality Board shall be sent to: Executive Secretary, Water
Quality Board, Division of Water Quality, P.O. Box 144870, Salt
Lake City, Utah 84114-4870. Alternatively, these documents may be
delivered by courier or hand delivery to: Executive Secretary,
Water Quality Board, Division of Water Quality, 195 North 1950
West, 3rd Floor, Salt Lake City, Utah 84116-3097.
(8) Documents submitted to the Executive Secretary of the
Water Quality Board relative to uranium mill facilities or
low-level radioactive waste disposal facilities shall be sent to:
Executive Secretary, Water Quality Board/Radiation, Division of
Radiation Control, P.O. Box 144850, Salt Lake City, Utah
84114-4850. For courier or hand delivery, these documents shall
be sent to: Executive Secretary, Water Quality Board/Radiation,
Division of Radiation Control, 195 North 1950 West, 3rd Floor,
Salt Lake City, Utah 84116-3097.
R305-6-403. Matters Governed by Title 19, Chapter 1 of the
Environmental Quality Code, but Not Including Title 19, Chapter
1, Part 4.
(1) Scope. This subsection R305-6-403 applies to all
matters governed by Title 19, Chapter 1, of the Environmental
Quality Code.
(2) Definitions.
"Presiding Officer" means the Executive
Director.
(3) Orders and notices issued under the authority of
Title 19, Chapter 1 of the the Environmental Quality Code are not
exempt from the requirements of UAPA. The provisions of UAPA and
of this Rule shall apply to proceedings initiated under the
authority of Title 19, Chapter 1, the "Environmental Quality
Code."
(4) Initiating and intervening in a proceeding. Nothing
in this Rule constitutes authority for any person other than the
agency to initiate adjudicative proceedings under Title 19,
Chapter 1. Nothing in this Rule constitutes authority for any
person to intervene in an action commenced under Title 19,
Chapter 1.
(5) Proceedings under Title 19, Chapter 1 of the
Environmental Quality Code, and specifically under
Section19-1-202(2)(a), will be conducted formally under
UAPA.
(6) Agency review under Section 63G-4-301 is not
available. A request for reconsideration may be filed under
Section 63G-4-302.
R305-6-404. Matters Governed by the Air Conservation Act,
Title 19, Chapter 2, but Not Including Sections 19-2-112 or
19-2-123 through 19-2-126.
(1) Scope. This subsection R305-6-404 applies to all
matters governed by the Air Conservation Act, Title 19, Chapter
2, but not including Sections 19-2-112 or 19-2-123 through
19-2-126.
(2) Definitions.
"Board" means the Air Quality Board.
"Executive Secretary" means the Executive
Secretary of the Air Quality Board.
(3) The Board delegates to the Executive Secretary the
authority to issue Initial Orders and Notices of Violation as
described in R305-6-404(4).
(4) Initial Orders and Notices of Violation issued by the
Executive Secretary under the authority of the Air Conservation
Act are exempt from the requirements of UAPA under
63G-4-102(2)(k). Initial Orders and Notices of Violation include,
but are not limited to, Initial Orders and Notices of Violation
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) certification of asbestos contractors under
R307-801;
(e) fees imposed for major source reviews under
R307-414;
(f) assessment of other fees except as provided in
R307-103-14(7);
(g) requests for variances, exemptions, and other
approvals;
(h) requests or approvals for experiments, testing or
control plans;
(i) certification of individuals and firms who perform
lead-based paint activities and accreditation of lead-based paint
training providers under R307-840;
(j) compliance with the requirements of the Air
Conservation Act and rules promulgated thereunder; and
(k) declaratory orders under Section 63G-4-503 and
R305-6-302.
(5) Initiating and intervening in a proceeding. A request
to initiate or intervene in a proceeding, as described in this
Rule, shall be served on the Executive Secretary at the address
specified in R305-6-402(2). See also R305-6-202 and
R305-6-205.
(6) A challenge to an Initial Order or to a Notice of
Violation will be conducted formally under UAPA.
(7) Agency review of the Board's decision under
Section 63G-4-301 is not available. A request for reconsideration
may be filed under Section 63G-4-302.
R305-6-405. Matters Governed by Section 19-2-112 of the Air
Conservation Act.
(1) This subsection R305-6-405 describes matters governed
by Section 19-2-112(1) of the Air Conservation Act, and applies
to matters governed by Section 19-2-112(2) of that Act.
(2) Actions taken under the authority of Section
19-2-112(1) are subject to the procedures specified in that
subsection only; neither this Rule nor UAPA applies.
(3) Definitions.
"Presiding Officer" means the Executive
Director or any person or persons the Executive Director appoints
as Presiding Officer.
(4) Orders and notices issued under the authority of
19-2-112(2) are subject to the requirements of and procedure
specified in 63G-4-502. There is no administrative review
available for orders issued under this provision. Any request for
reconsideration shall be addressed to the Executive Director at
the address specified in R305-6-402(1).
(5) Initiating and intervening in a proceeding. Nothing
in this Rule constitutes authority for:
(a) any person other than the agency to initiate
adjudicative proceedings under 19-2-112(2); or
(b) any person to intervene in an action commenced under
19-2-112(2).
R305-6-406. Matters Governed by Sections 19-2-123 through
19-2-126 of the Air Conservation Act.
(1) Scope. This subsection R305-6-406 applies to matters
governed by Sections 19-2-123 through 19-2-126 of the Air
Conservation Act. Sections 59-7-605 and 59-10-1009 of the Utah
Tax Code also apply to these matters.
(2) Definitions.
(a) General.
"Board" means, as appropriate, the Air Quality
Board or the Water Quality Board.
"Executive Secretary" means, as appropriate,
the Executive Secretary of the Air Quality Board or the Water
Quality Board.
(3) The Board delegates to the Executive Secretary the
authority to issue Initial Orders as described in
R305-6-406(5).
(4) Requests relating to air pollution control equipment
shall be directed to the Air Quality Board and its Executive
Secretary. Requests for water pollution control equipment shall
be directed to the Water Quality Board and its Executive
Secretary. See Section 19-2-102(14)(a).
(5) Initial Orders issued by the Executive Secretary
under the authority of 19-2-123 through 19-2-126 are exempt from
the requirements of UAPA under 63G-4-102(2)(k). Initial Orders
include, but are not limited to, Initial Orders regarding
eligibility of pollution control equipment for tax exemptions
under R307-120 and R307-121, and declaratory orders under Section
63G-4-503 and R305-6-302.
(6) Initiating and intervening in a proceeding. A request
for agency action or a petition to intervene in a proceeding, as
described in this Rule, shall be served, as appropriate under
R305-6-406(4), on the Executive Secretary for the Air Quality
Board as specified in R305-6-402(2), or on the Executive
Secretary for the Water Quality Board as specified in
R305-6-402(7).
(7) A challenge to an Initial Order issued under 19-2-123
through 19-2-126 will be conducted formally under UAPA.
(8) Agency review of the Board's decision, as
provided in Section 63G-4-301, is not available. A request for
reconsideration may be filed under Section 63G-4-302.
R305-6-407. Matters Governed by the Radiation Control Act,
Title 19, Chapter 3, but Not Including Section 19-3-109.
(1) Scope. This subsection R305-6-407 applies to all
matters governed by the Radiation Control Act, Title 19, Chapter
3, but not including Section 19-3-109.
(2) Definitions.
"Board" means the Radiation Control
Board.
"Executive Secretary" means the Executive
Secretary of the Radiation Control Board.
(3) The Board delegates to the Executive Secretary the
authority to issue Initial Orders and Notices of Violation as
described in R305-6-407(4).
(4) Initial Orders and Notices of Violation issued by the
Executive Secretary under the authority of the Radiation Control
Act are exempt from the requirements of UAPA under
63G-4-102(2)(k). Initial Orders and Notices of Violation include,
but are not limited to, Initial Orders and Notices of Violation
regarding:
(a) approval, amendment, denial, termination, transfer,
revocation, or renewal of licenses or permits;
(b) x-ray facility registration, qualified expert
registration, and mammography imaging medical physicist
approval;
(c) generator site access certifications and
registrations;
(d) requests for variances or exemptions;
(e) notices of violation and orders associated with
notices of violation;
(f) orders assessing penalties;
(g) orders to comply and orders to cease and
desist;
(h) orders regarding impoundment of radioactive
material
(i) orders regarding decommissioning;
(j) orders regarding financial assurance;
(k) orders regarding surveying, monitoring, sampling, or
information;
(l) compliance with the requirements of the Radiation
Control Act and rules promulgated thereunder; and
(m) declaratory orders under Section 63G-4-503 and
R305-6-302.
(5) Initiating and intervening in a proceeding. A request
for agency action or a petition to intervene in a proceeding, as
described in this Rule, shall be served on the Executive
Secretary as specified in R305-6-402(4).
(6) A challenge to an Initial Order or notice issued
under the Radiation Control Act will be conducted formally under
UAPA.
(7) Agency review of the Board's decision, as
provided in Section 63G-4-301, is not available. A request for
reconsideration may be filed under Section 63G-4-302.
(8) See R305-6-411(5)(b) regarding the Executive
Secretary responsible for water quality matters at uranium mill
facilities, low level radioactive waste processing facilities,
and low level radioactive waste disposal facilities.
R305-6-408. Matters Governed by the Radiation Control Act,
Title 19, Chapter 3, Section 19-3-109.
(1) Scope. This subsection R305-6-408 applies to all
matters governed by Section 19-3-109 of the Radiation Control
Act.
(2) Definitions.
"Board" means the Radiation Control
Board.
"Executive Secretary" means the Executive
Secretary of the Radiation Control Board.
(3) The Board delegates to the Executive Secretary the
authority to issue a Notice of Agency Action assessing penalties
under Section 19-3-109.
(4) Before issuing a Notice of Agency Action assessing
penalties, the Executive Secretary shall provide at least 30
calendar days' notice of the proposed penalty, and shall
provide the recipient with an opportunity to comment on the
proposed penalty.
(5) If the recipient of a Notice of Agency Action
proposing to assess penalties does not file a written response
within 30 calendar days, the Executive Secretary may issue a
final order under Section 63G-4-209(1)(c). If the recipient does
file a written response, the Board will conduct a formal
proceeding on the matter. The Board may delegate decisions, other
than dispositive decisions, to an appointed Presiding
Officer.
(6) Nothing in this Rule constitutes authority for any
person other than the Executive Secretary or the Board to
initiate an adjudicative proceeding under Section 19-3-109.
Nothing in this Rule constitutes authority for any person to
intervene in an action commenced under Section 19-3-109.
(7) Agency review of the Board's decision, as
provided in Section 63G-4-301, is not available. A request for
reconsideration may be filed under Section 63G-4-302.
R305-6-409. Matters Governed by the Safe Drinking Water Act,
Title 19, Chapter 4, but Not Including Section 19-4-109(1).
(1) Scope. This subsection R305-6-409 applies to all
matters governed by the Safe Drinking Water Act, Title 19,
Chapter 4, but not included Section 19-4-109(1).
(2) Definitions.
"Board" means the Drinking Water
Board.
"Executive Secretary" means the Executive
Secretary of the Drinking Water Board.
(3) The Board delegates to the Executive Secretary the
authority to issue Initial Orders and Notices of Violation as
described in R305-6-409(4).
(4) Initial Orders and Notices of Violation issued by the
Executive Secretary under the authority of the Safe Drinking
Water Act are exempt from the requirements of UAPA under
63G-4-102(2)(k). Initial Orders and Notices of Violation include,
but are not limited to, Initial Orders and Notices of Violation
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) orders regarding variances and exemptions;
(e) certification of water supply operators under
R309-300 and backflow technicians under R309-305;
(f) ratings of water systems under R309-400-4;
(g) assessment of fees;
(h) concurrence with source protection plans;
(i) compliance with the requirements of the Safe Drinking
Water Act and rules promulgated thereunder; and
(j) declaratory orders under Section 63G-4-503 and
R305-6-302.
(5) Initiating and intervening in a proceeding. A request
for agency action or a petition to intervene in a proceeding, as
described in this Rule, shall be served on the Executive
Secretary at the address specified in R305-6-402(3).
(6) A challenge to an Initial Order or notice issued
under the Safe Drinking water Act will be conducted formally
under UAPA.
(7) Agency review of the Board's decision, as
provided in Section 63G-4-301, is not available. A request for
reconsideration may be filed under Section 63G-4-302.
R305-6-410. Matters Governed by the Safe Drinking Water Act,
Title 19, Chapter 4, Section 19-4-109(1).
(1) Scope. This subsection R305-6-410 applies to all
matters governed by Section 19-4-109 of the Safe Drinking Water
Act.
(2) Definitions.
"Board" means the Drinking Water
Board.
"Executive Secretary" means the Executive
Secretary of the Drinking Water Board.
(3) The Board delegates to the Executive Secretary the
authority to issue a Notice of Agency Action assessing penalties
under Section 19-4-109(1).
(4) Before issuing a Notice of Agency Action assessing
penalties, the Executive Secretary shall provide at least 30
calendar days' notice of the proposed penalty, and shall
provide the recipient with an opportunity to comment on the
proposed penalty.
(5) If the recipient of a Notice of Agency Action
proposing to assess penalties does not file a written response
within 30 calendar days, the Executive Secretary may issue a
final order under Section 63G-4-209(1)(c). If the recipient does
file a written response, the Board will conduct a formal
proceeding on the matter. The Board may delegate decisions, other
than dispositive decisions, to an appointed Presiding
Officer.
(6) Nothing in this Rule constitutes authority for any
person other than the Executive Secretary or the Board to
initiate an adjudicative proceeding under Section 19-3-109.
Nothing in this Rule constitutes authority for any person to
intervene in an action commenced under Section 19-3-109.
(7) Agency review of the Board's decision, as
provided in Section 63G-4-301, is not available. A request for
reconsideration may be filed under Section 63G-4-302.
R305-6-411. Matters Governed by the Water Quality Act, Title
19, Chapter 5.
(1) Scope. This subsection R305-6-411 applies to all
matters governed by the Water Quality Act, Title 19, Chapter
5.
(2) Definitions.
"Board" means the Water Quality Board.
"Executive Secretary" means the Executive
Secretary of the Water Quality Board.
"Presiding Officer" shall mean, as appropriate,
an ALJ appointed under 19-1-301, the Board, or, for matters
governed by Section 19-5-112(2), the Executive Director.
(3) The Board delegates to the Executive Secretary the
authority to issue Initial Orders and Notices of Violation as
described in R305-6-411(4).
(4) Initial Orders and Notices of Violation issued by the
Executive Secretary under the authority of the Water Quality Act
are exempt from the requirements of UAPA under 63G-4-102(2)(k).
Initial Orders and Notices of Violation include, but are not
limited to, Initial Orders and Notices of Violation
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) orders regarding variances and exemptions;
(e) assessment of fees;
(f) requests or approvals for experiments, testing or
control plans;
(g) certification of wastewater treatment works operators
under R317-10; and
(h) certification of individuals who design, inspect,
maintain, or conduct percolation or soil tests for underground
wastewater disposal systems;
(i) compliance with the requirements of the Water Quality
Act and rules promulgated thereunder; and
(j) declaratory orders under Section 63G-4-503 and
R305-6-302.
(5) Initiating and intervening in a proceeding.
(a) A request for agency action or a petition to
intervene in a proceeding, as described in this Rule, shall be
served on the Executive Secretary and, except as otherwise
provided in R305-6-411(5)(b), shall be addressed to the Executive
Secretary at the address specified in R305-6-402(7).
(b) The director of the Radiation Control Division has
been appointed as a Co-Executive Secretary of the Water Quality
Board, with responsibility for uranium mill facilities, low-level
radioactive waste processing facilities, and low level
radioactive waste disposal facilities. A request for agency
action or a petition to intervene in a proceeding involving an
order or notice issued by the Director of the Radiation Control
Division as Executive Secretary for the Water Quality Board with
respect to those facilities shall be served on the Executive
Secretary as specified in R305-6-402(8).
(6) A challenge to an Initial Order or notice issued
under the Water Quality Act will be conducted formally under
UAPA.
(7) The Executive Director shall be the final
decisionmaker for a challenge to a permit decision, as specified
in Section 19-5-112(2). The Board shall be the final
decisionmaker for all other challenges.
(8) Agency review of the Board's or Executive
Director's decision, as provided in Section 63G-4-301, is not
available. A request for reconsideration may be filed under
Section 63G-4-302.
R305-6-412. Matters Governed by the Solid and Hazardous
Waste Act, Title 19, Chapter 6, Part 1.
(1) Scope. This subsection R305-6-412 applies to all
matters governed by Solid and Hazardous Waste Act, Title 19,
Chapter 6, Part 1.
(2) Definitions.
"Board" means the Solid and Hazardous Waste
Control Board.
"Executive Secretary" means the Executive
Secretary of the Solid and Hazardous Waste Control
Board.
(3) The Board delegates to the Executive Secretary the
authority to issue Initial Orders and Notices of Violation as
described in R305-6-412(4).
(4) Initial Orders and Notices of Violation issued by the
Executive Secretary under the authority of the Solid and
Hazardous Waste Act are exempt from the requirements of UAPA
under 63G-4-102(2)(k). Initial Orders and Notices of Violation
include, but are not limited to, initial proceedings
regarding:
(a) approval, modification, denial, termination,
transfer, revocation, or reissuance of permits or plan
approvals;
(b) orders regarding approval for equivalent testing or
analytical methods;
(c) notices of violation and orders associated with
notices of violation;
(d) orders regarding variances and exceptions;
(e) orders for corrective action;
(f) consent orders;
(g) compliance with the requirements of the Solid and
Hazardous Waste Act and rules promulgated thereunder;
and
(h) declaratory orders under Section 63G-4-503 and
R305-6-302.
(5) Initiating and intervening in a proceeding. A request
to initiate or intervene in a proceeding, as described in this
Rule, shall be served on the Executive Secretary as provided in
R305-6-402(5) or (6).
(6) A challenge to an Initial Order or notice issued
under the Solid and Hazardous Waste Act will be conducted
formally under UAPA.
(7) Agency review of the Board's decision, as
provided in Section 63G-4-301, is not available. A request for
reconsideration may be filed under Section 63G-4-302.
R305-6-413. Matters Governed by the Hazardous Substances
Mitigation Act, Title 19, Chapter 6, Part 3.
(1) Scope. This subsection R305-6-413 applies to all
matters governed by the Hazardous Substances Mitigation Act,
Title 19, Chapter 6, Part 3.
(2) Definitions.
"Presiding Officer" means the Executive
Director or any person or persons the Executive Director appoints
as Presiding Officer.
(3) Orders and Notices of Violation issued under the
authority of the Hazardous Substances Mitigation Act are not
exempt from the requirements of UAPA. The provisions of UAPA
(including as appropriate the emergency provisions of Section
63G-4-502) and of this Rule shall apply to proceedings initiated
under the authority of the Hazardous Substances Mitigation
Act.
(4) Proceedings under this statute shall be conducted
formally under UAPA.
(5) Initiating and intervening in a proceeding. Nothing
in this Rule constitutes authority for any person other than the
agency to initiate adjudicative proceedings under the Hazardous
Substances Mitigation Act. Requests to intervene in a proceeding
shall be governed by Section 63G-4-207 and the provisions of this
Rule. A petition to intervene in a proceeding shall be served on
the Executive Director as provided in R305-6-402(1).
(6) Agency review of the Executive Director's
decision, as provided in Section 63G-4-301, is not available. A
request for reconsideration may be filed under Section
63G-4-302.
R305-6-414. Matters Governed by the Underground Storage Tank
Act, Title 19, Chapter 6, Part 4, but Not Including Sections
19-6-407, 19-6-408, 19-6-416 and 19-6-416.5.
(1) Scope. This subsection R305-6-414 applies to all
matters governed by the Underground Storage Tank Act, Title 19,
Chapter 6, Part 4, but not including Sections 19-6-407, 19-6-408,
19-6-416 and 19-6-416.5.
(2) Definitions.
"Board" means the Solid and Hazardous Waste
Control Board.
"Executive Secretary" means the Executive
Secretary of the Solid and Hazardous Waste Control
Board.
(3) The Executive Secretary has statutory authority to
issue Initial Orders and Notices of Violation as described in
R305-6-414(4).
(4) Initial Orders and Notices of Violation issued by the
Executive Secretary under the authority of the Underground
Storage Tank Act are exempt from the requirements of UAPA under
63G-4-102(2)(k), except as provided in R305-6-415. Initial Orders
and Notices of Violation that are exempt from UAPA include, but
are not limited to, orders and notices regarding:
(a) approval, denial, termination, or revocation of
certifications, registrations, and certificates of
compliance;
(b) orders regarding approval for equivalent testing or
analytical methods;
(c) notices of violation and orders associated with
notices of violation;
(d) orders regarding variances and exceptions;
(e) orders for investigation or corrective
action;
(f) apportionment;
(g) consent orders;
(h) compliance with the requirements of the Underground
Storage Tank Act and rules promulgated thereunder; and
(i) declaratory orders under Section 63G-4-503 and
R305-6-302.
(4) Initiating and intervening in a proceeding.
(a) A challenge to a revocation of a certificate of
compliance shall be initiated by serving a Request for Agency
Action on the Executive Director as provided in R305-6-402(1).
See Section 19-6-414(3) of the Underground Storage Tank
Act.
(b) All other requests to initiate or intervene in a
proceeding, as described in this Rule, shall be directed to the
Board and served on the Executive Secretary as provided in
R305-6-402(6).
(5) A challenge to an Initial Order or notice issued
under the Underground Storage Tank Act will be conducted formally
under UAPA.
(6) Agency review of the Executive Directors or the
Board's decision, as provided in Section 63G-4-301, is not
available. A request for reconsideration may be filed under
Section 63G-4-302.
R305-6-415. Matters Governed by the Underground Storage Tank
Act, Title 19, Chapter 6, Sections 19-6-407, 19-6-408, 19-6-416
and 19-6-416.5.
(1) Scope. This subsection R305-6-415 applies to all
matters governed by Sections 19-6-407, 19-6-408, 19-6-416, and
19-6-416.5 of the Underground Storage Tank Act.
(2) Definitions.
"Board" means the Solid and Hazardous Waste
Control Board.
"Executive Secretary" means the Executive
Secretary of the Solid and Hazardous Waste Control
Board.
(3) The Executive Secretary has statutory authority to
issue a Notice of Agency Action assessing penalties under
Sections 19-6-407, 19-6-408, 19-6-416, and 19-6-416.5.
(4) Before issuing a Notice of Agency Action assessing
penalties, the Executive Secretary shall provide at least 30
calendar days' notice of the proposed penalty, and shall
provide the recipient with an opportunity to comment on the
proposed penalty.
(5) If the recipient of a Notice of Agency Action
proposing to assess penalties does not file a written response
within 30 calendar days, the Executive Secretary may issue a
final order under Section 63G-4-209(1)(c). If the recipient does
file a written response, the Board will conduct a formal
proceeding on the matter. The Board may appoint a Presiding
Officer for pre-hearing and hearing matters, but any dispositive
determinations shall be made by the Board. Proceedings described
in paragraph (4) are not exempt from UAPA.
(6) Nothing in this Rule constitutes authority for any
person other than the Executive Secretary or the Board to
initiate an adjudicative proceeding under Sections 19-6-407,
19-6-408, 19-6-416, or 19-6-416.5. Nothing in this Rule
constitutes authority for any person to intervene in an action
commenced under Sections 19-6-107, 19-6-108, 19-6-416 or
19-6-416.5.
(7) Orders issued by the Executive Secretary to assess
penalties under Sections 19-6-407, 19-6-408, 19-6-416 and
19-6-416.5 are not exempt from the requirements of UAPA.
(8) Agency review of the Board's decision, as
provided in Section 63G-4-301, is not available. A request for
reconsideration may be filed under Section 63G-4-302.
R305-6-416. Matters Governed by the Used Oil Management Act,
Title 19, Chapter 6, Part 7.
(1) Scope. This subsection R305-6-416 applies to all
matters governed by the Used Oil Management Act, Title 19,
Chapter 6, Part 7.
(2) Definitions.
"Board" means the Solid and Hazardous Waste
Control Board.
"Executive Secretary" means the Executive
Secretary of the Solid and Hazardous Waste Control
Board.
(3) The Executive Secretary has statutory authority to
issue Initial Orders and Notices of Violation as described in
R305-6-416(4).
(4) Initial Orders and Notices of Violation issued by the
Executive Secretary under the authority of the Used Oil
Management Act are exempt from the requirements of UAPA under
63G-4-102(2)(k). Initial Orders and Notices of Violation include,
but are not limited to, initial proceedings regarding:
(a) approval, modification, denial, termination,
transfer, revocation, or reissuance of permits, plan approvals,
sureties and registrations;
(b) notices of violation and orders associated with
notices of violation;
(c) orders for corrective action;
(d) orders regarding variances and exceptions;
(e) consent orders; and
(f) registration and revocation of registration of used
oil collection centers, used oil aggregation points or DIYer used
oil collection centers;
(g) reclamation orders;
(h) compliance with the requirements of the Used Oil
Management Act and rules promulgated thereunder; and
(i) declaratory orders under Section 63G-4-503 and
R305-6-302.
(5) Initiating and intervening in a proceeding. A request
to initiate or intervene in a proceeding, as described in this
Rule, shall be served on the Executive Secretary as specified in
R305-6-402(5).
(6) A challenge to an Initial Order or notice issued
under the Used Oil Management Act will be conducted formally
under UAPA.
(7) Agency review of the Board's decision, as
provided in Section 63G-4-301, is not available. A request for
reconsideration may be filed under Section 63G-4-302.
R305-6-417. Matters Governed by the Waste Tire Recycling
Act, Title 19, Chapter 6, Part 8.
(1) Scope. This subsection R305-6-417 applies to all
matters governed by Waste Tire Recycling Act, Title 19, Chapter
6, Part 8.
(2) Definitions.
"Board" means the Solid and Hazardous Waste
Control Board.
"Executive Secretary" means the Executive
Secretary of the Solid and Hazardous Waste Control
Board.
(3) The Executive Secretary has statutory authority to
issue Notices of Agency Action as described in
R305-6-417(4).
(4) Notices of agency action for orders and notices of
violation under the Waste Tire Recycling Act include, but are not
limited to, notices regarding proceedings for:
(a) approval, modification, denial, termination,
transfer, revocation, or reissuance of permits, plan
approvals;
(b) approvals, denial and other orders regarding
financial assurance and insurance;
(c) notices of violation and orders associated with
compliance with the statute;
(d) orders regarding variances or exemptions;
(e) orders for corrective action, including
reclamation;
(f) consent orders;
(g) registration and revocation of registration of waste
tire transporters and recyclers;
(h) approval of reimbursements;
(i) approval of payments to counties or municipalities
for costs of a waste tire transporter or recycler to remove waste
tires; and
(j) declaratory orders under Section 63G-4-503 and
R305-6-302.
(5) If the recipient of a Notice of Agency Action does
not file a written response within 30 calendar days, the
Executive Secretary may issue a final order under Section
63G-4-209(1)(c). If the recipient does file a written response,
the Board will conduct a formal proceeding on the matter. The
Board may appoint a Presiding Officer for pre-hearing and hearing
matters, but any dispositive determinations shall be made by the
Board. Proceedings described in paragraph (4) are not exempt from
UAPA.
(6) Initiating and intervening in a proceeding. A request
to initiate or intervene in a proceeding, as described in this
Rule, shall be served on the Executive Secretary as specified in
R305-6-402(5).
(7) Agency review of the Board's decision, as
provided in Section 63G-4-301, is not available. A request for
reconsideration may be filed under Section 63G-4-302.
R305-6-418. Matters Governed by the Illegal Drug Operations
Site Reporting and Decontamination Act, Title 19, Chapter 6,
Part 9.
(1) Scope. This subsection R305-6-418 applies to all
matters over which the Board has authority under the Illegal Drug
Operations Site Reporting and Decontamination Act, Title 19,
Chapter 6, Part 9, and under the authority of the Board.
(2) Definitions.
"Board" means the Solid and Hazardous Waste
Control Board.
"Executive Secretary" means the Executive
Secretary of the Solid and Hazardous Waste Control
Board.
(3) The Board delegates to the Executive Secretary the
authority to issue Notices of Agency Action and to respond to
Requests for Agency Action as described in
R305-6-418(4).
(4) Proceedings under the Illegal Drug Operations Site
Reporting and Decontamination Act include, but are not limited
to, notices regarding proceedings for:
(a) proceedings regarding certifications of
decontamination specialists; and
(b) declaratory orders under Section 63G-4-503 and
R305-6-302.
(5) If the recipient of a Notice of Agency Action does
not file a written response within 30 calendar days, the
Executive Secretary may issue a final order under Section
63G-4-209(1)(c). If the recipient does file a written response,
the Board will conduct a proceeding on the matter. The Board may
appoint a Presiding Officer for pre-hearing and hearing matters,
but any dispositive determinations shall be made by the Board.
Proceedings described in paragraph (4) are not exempt from
UAPA.
(6) A proceeding regarding an application for
certification based on passing the certification test, submitting
verification of citizenship, demonstrating OSHA certification, or
paying of the application fee shall be conducted informally by
the Executive Secretary. Agency review of the Executive
Secretary's decisions is not available. A request for
reconsideration may be filed using the procedures specified in
63G-4-302.
(7) A proceeding to revoke certification shall be
conducted formally. Agency review of the Board's decision, as
provided in Section 63G-4-301, is not available. A request for
reconsideration may be filed under Section 63G-4-302.
R305-6-419. Matters Governed by the Mercury Switch Removal
Act, Title 19, Chapter 6, Part 10.
(1) Scope. This subsection R305-6-419 applies to all
matters governed by the Mercury Switch Removal Act, Title 19,
Chapter 6, Part 10.
(2) Definitions.
"Board" means the Solid and Hazardous Waste
Control Board.
"Executive Secretary" means the Executive
Secretary of the Solid and Hazardous Waste Control
Board.
(3) Initial Orders and Notices of Violation issued by the
Executive Secretary under the authority of the Mercury Switch
Removal Act are exempt from the requirements of UAPA under
Section 63G-4-102(2)(k). Initial Orders and Notices of Violation
include, but are not limited to, initial proceedings
regarding:
(a) approval, modification, denial, termination,
transfer, revocation, or reissuance of plans;
(b) notices of violation and orders associated with
compliance with the statute, including orders for corrective
action;
(c) orders regarding variances and exceptions;
(d) consent orders;
(e) compliance with the requirements of the Mercury
Switch Removal Act and rules promulgated thereunder; and
(f) declaratory orders under Section 63G-4-503 and
R305-6-302.
(4) Initiating and intervening in a proceeding. A request
to initiate or intervene in a proceeding, as described in this
Rule, shall be served on the Executive Secretary as specified in
R305-6-402(5).
(5) A challenge to an Initial Order or notice issued
under the Mercury Switch Removal Act will be conducted formally
under UAPA.
(6) Agency review of the Board's decision, as
provided in Section 63G-4-301, is not available. A request for
reconsideration may be filed under Section 63G-4-302.
R305-6-420. Matters Governed by the Industrial Byproduct
Reuse Act, Title 19, Chapter 6, Part 11.
(1) Scope. This subsection R305-6-420 applies to all
matters governed by the Industrial Byproduct Reuse Act, Title 19,
Chapter 6, Part 11.
(2) Definitions.
"Board" means the Solid and Hazardous Waste
Control Board.
"Executive Secretary" means the Executive
Secretary of the Solid and Hazardous Waste Control
Board.
(3) The Executive Secretary has statutory authority to
issue Notices of Agency Action as described in
R305-6-420(4).
(4) Notices of agency action for orders and notices of
violation under the Industrial Byproduct Reuse Act include, but
are not limited to, notices regarding proceedings for:
(a) orders regarding applications for reuse of an
industrial byproduct; and
(b) declaratory orders under Section 63G-4-503 and
R305-6-302.
(5) If the recipient of a Notice of Agency Action does
not file a written response within 30 calendar days, the
Executive Secretary may issue a final order under Section
63G-4-209(1)(c). If the recipient does file a written response,
the Board will conduct a formal proceeding on the matter. The
Board may appoint a Presiding Officer for pre-hearing and hearing
matters, but any dispositive determinations shall be made by the
Board. Proceedings described in paragraph (4) are not exempt from
UAPA.
(6) Initiating and intervening in a proceeding. A request
to initiate or intervene in a proceeding, as described in this
Rule, shall be served on the Executive Secretary as specified in
R305-6-402(5).
(7) Agency review of the Board's decision, as
provided in Section 63G-4-301, is not available. A request for
reconsideration may be filed under Section 63G-4-302.
R305-6-421. Matters Governed by the Voluntary Cleanup
Program Statute, Title 19, Chapter 8.
(1) Scope. This subsection R305-6-421 applies to all
matters governed by the Voluntary Cleanup Program statute, Title
19, Chapter 8.
(2) Definitions.
"Presiding Officer" means the Executive
Director or the Executive Director's designee.
(3) Determinations about whether to enter into an
agreement under this program lie within the sole discretion of
the Executive Director. Unless the Executive Director designates
another Presiding Officer, papers shall be filed with the
Executive Director as provided in R305-6-402(1).
(4) The Executive Director delegates to the Director of
the Division of Environmental Response and Remediation authority
to issue orders and other Notices of Agency Action
regarding:
(a) proposed determinations regarding approvals,
disapprovals or modifications of work plans and reports;
(b) approvals, denials or modifications of certificates
of completion; and
(c) declaratory orders under Section 63G-4-503 and
R305-6-302.
(5) Agency review of the Executive Director's
decision, as provided in Section 63G-4-301, is not available. A
request for reconsideration may be filed under Section
63G-4-302.
R305-6-422. Matters Governed by the Environmental
Institutional Control Act, Title 19, Chapter 10.
(1) Scope. This subsection R305-6-422 applies to all
matters governed by the Environmental Institutional Control Act,
Title 19, Chapter 10.
(2) Definitions.
"Presiding Officer" means the Executive
Director or the Executive Director's designee.
(3) A request to terminate or modify an environmental
institutional control adopted under this act shall be considered
a Request for Agency Action and shall be directed to the
Executive Director as provided in R305-6-402(1). The Executive
Director may at any time designate another Presiding Officer. The
person submitting the Request for Agency Action shall be notified
of the designation.
(4) Proceedings described in paragraph (3) will be
conducted under UAPA using formal procedures. Proceedings under
the Environmental Institutional Control Act are not exempt from
the requirements of UAPA.
(5) Agency review of the Executive Director's
decision, as provided in Section 63G-4-301, is not available. A
request for reconsideration may be filed under Section
63G-4-302.
R305-6-423. Matters Governed by the Uniform Environmental
Covenants Act, Title 57, Chapter 25.
(1) Scope. This subsection R305-6-423 applies to all
matters governed by the Uniform Environmental Covenants Act,
Title 57, Chapter 25.
(2) The Executive Director, or the Executive Directors
designee, is the Presiding Officer.
(3) Orders issued by the Executive Director or the
Executive Director's designee under the authority of the
Environmental Institutional Control Act are not exempt from the
requirements of UAPA.
(4) A request to approve, modify or terminate an
environmental covenant shall be considered to be a Request for
Agency Action and a proceeding to address the Request shall be
conducted under UAPA using formal procedures.
(5) Initiating and intervening in a proceeding. A request
to initiate or intervene in a proceeding, as described in this
Rule, shall be filed with the Executive Director as specified in
R305-6-402(1).
(6) Agency review of the Executive Director's
decision, as provided in Section 63G-4-301, is not available. A
request for reconsideration may be filed under Section
63G-4
KEY: administrative procedures, adjudicative procedures,
hearings
Date of Enactment or Last Substantive Amendment: August 31,
2011
Authorizing, and Implemented or Interpreted Law: 63G-4-102;
63G-4-201; 63G-4-202; 63G-4-203; 63G-4-205; 63G-4-503;
19-1-301; 19-2-104; 19-3-104; 19-5-104; 19-6-105 ]
Additional Information
The Portable Document Format (PDF) version of the Bulletin is the official version. The PDF version of this issue is available at https://rules.utah.gov/publicat/bull-pdf/2012/b20120815.pdf. The HTML edition of the Bulletin is a convenience copy. Any discrepancy between the PDF version and HTML version is resolved in favor of the PDF version.
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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 llockhart@utah.gov; Beverly Rasmussen at the above address, by phone at 801-536-4405, by FAX at 801-536-0061, or by Internet E-mail at bjrasmussen@utah.gov.