File No. 34697
This rule was published in the May 1, 2011, issue (Vol. 2011, No. 9) of the Utah State Bulletin.
Environmental Quality, Water Quality
Rule R317-9
Administrative Procedures
Notice of Proposed Rule
(Repeal and Reenact)
DAR File No.: 34697
Filed: 04/14/2011 04:28:43 PM
RULE ANALYSIS
Purpose of the rule or reason for the change:
See the companion rulemaking proposing new administrative procedures rule at Rule R305-6 (DAR No. 34472), published in the March 15, 2011, Bulletin on pg. 53. The Department of Environmental Quality (DEQ) is updating its rule governing administrative procedures, and it is simultaneously consolidating those procedures into one rule. Updating is needed for several reasons. A 2009 amendment to Section 19-1-301 required the Department to use administrative law judges for most administrative proceedings. Many of the updates are needed to incorporate that statutory change. Updates are also needed to make clarifications and improvements in administrative procedures, and changes based on the Department's accumulated experience with administrative procedures. The purpose of specifying administrative procedures generally is to ensure that all participants will have information about how administrative proceedings will be conducted, and to ensure that the proceedings are conducted fairly and efficiently.
Summary of the rule or change:
DEQ is proposing to consolidate rules currently found in Rule R317-9 and several other places in DEQ's rules. In addition, the new Rule R305-6 makes many changes to Rule R317-9 and the other currently applicable rules, including changes to encourage informal discovery and to limit discovery to appropriate subjects (proposed Section R305-6-105); changes to require that for decisions to be made by an executive secretary of a board, comments must be provided to the executive secretary in order to preserve a commenter's right to challenge the executive secretary's decision (proposed Section R305-6-209); and changes that specify situations in which declaratory actions should not be considered (proposed Section R305-6-302).
State statutory or constitutional authorization for this rule:
- Sections 63G-4-201 through 63G-4-205
- Section 19-1-301
- Section 63G-4-503
- Section 19-5-104
Anticipated cost or savings to:
the state budget:
The changes to administrative proceedings from those currently being used are not expected to be substantial enough to have an impact on the budget of any participant. Although some changes have been proposed to improve efficiency, e.g., new requirements regarding discovery in Section R305-6-209, it is also anticipated that efficiencies will be offset by a steadily increasing caseload.
local governments:
There is no direct impact on local government, except that they may be regulated entities that would be governed by the rule. The changes to administrative proceedings from those currently being used are not expected to be substantial enough to have an impact on the budget of any participant. Although some changes have been proposed to improve efficiency, e.g., new requirements regarding discovery in Section R305-6-209, it would be speculative to suggest that the impact of any improvement would be measurable savings. It is also anticipated that efficiencies will be offset by a steadily increasing caseload.
small businesses:
The changes to administrative proceedings from those currently being used are not expected to be substantial enough to have an impact on the budget of any participant. Although some changes have been proposed to improve efficiency, e.g., new requirements regarding discovery in Section R305-6-209, it would be speculative to suggest that the impact of any improvement would be measurable savings for any specific proceeding.
persons other than small businesses, businesses, or local governmental entities:
Individuals, partnerships, and other entities can be regulated entities that will be governed by the new rule. The changes to administrative proceedings from those currently being used are not expected to be substantial enough to have an impact on the budget of any participant. Although some changes have been proposed to improve efficiency, e.g., new requirements regarding discovery in Section R305-6-209, it would be speculative to suggest that the impact of any improvement would be measurable savings for any specific proceeding.
Compliance costs for affected persons:
The changes to administrative proceedings from those currently being used are not expected to be substantial enough to have an impact on the budget of any participant. Although some changes have been proposed to improve efficiency, e.g., new requirements regarding discovery in Section R305-6-209, it would be speculative to suggest that the impact of any improvement would be measurable savings for any specific proceeding.
Comments by the department head on the fiscal impact the rule may have on businesses:
The changes to administrative proceedings from those currently being used are not expected to be substantial enough to have an impact on the budget of any participant. Although some changes have been proposed to improve efficiency, e.g., new requirements regarding discovery in Section R305-6-209, it would be speculative to suggest that the impact of any improvement would be measurable savings for any specific proceeding.
Amanda Smith, Executive Director
The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:
Environmental QualityWater Quality
195 N 1950 W
SALT LAKE CITY, UT 84116
Direct questions regarding this rule to:
- Laura Lockhart at the above address, by phone at 801-366-0283, by FAX at 801-366-0292, or by Internet E-mail at llockhart@utah.gov
Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:
05/31/2011
This rule may become effective on:
07/01/2011
Authorized by:
Amanda Smith, Executive Director
RULE TEXT
R317. Environmental Quality, Water Quality.
R317-9. Administrative Procedures.
R317-9-1. Administrative Procedures.
Administrative proceedings under Utah Water Quality Act are governed by Rule R305-6.
[
R317-9-1. Scope of Rule.
(1) This rule R317-9 sets out procedures for conducting
adjudicative proceedings under Title 19, Chapter 5, Utah Water
Quality Act, and governed by Title 63, Chapter 46b, the Utah
Administrative Procedures Act.
(2) The executive secretary may issue initial orders or
notices of violation as authorized by the Board. Following the
issuance of an initial order or notice of violation under Title
19, Chapter 5, the recipient, or in some situations other
persons, may contest that order or notice in a proceeding before
the board or, in the case of an adjudication brought to deny or
revoke a permit, before the executive director. Either the board
or the executive director may appoint a presiding officer to hear
the matter.
(3) Issuance of initial orders and notices of violation
are not governed by the Utah Administrative Procedures Act as
provided under subsection 63-46b-1(2)(k) and are not governed by
sections R317-9-3 through R317-9-14 of this Rule. Initial orders
and notices of violation are further described in
R317-9-2(1).
(4) Proceedings to contest an initial order or notice of
violation are governed by the Utah Administrative Procedures Act
and by this rule R317-9.
(5) The Utah Administrative Procedures Act and this rule
R317-9 also govern any other formal adjudicative proceeding
before the Water Quality Board.
R317-9-2. Initial Proceedings.
(1) Initial Proceedings Exempt from Utah Administrative
Procedures Act. Initial orders and notices of violation include,
but are not limited to, initial proceedings regarding:
(a) approval, denial, termination, modification,
revocation, reissuance or renewal of permits, plans, or approval
orders;
(b) notices of violation and orders associated with
notices of violation;
(c) orders to comply and orders to cease and
desist;
(d) eligibility of pollution control equipment for tax
exemptions under Utah Code Ann. 19-2-123 through 19-2-127 and
R317-1-8;
(e) requests for variances, exemptions, and other
approvals;
(f) assessment of fees except as provided in
R317-9-14(7);
(g) requests or approvals for experiments, testing or
control plans;
(h) certification of wastewater treatment works operators
under R317-10; and
(i) certification of individuals who design, inspect,
maintain, or conduct percolation or soil tests for underground
wastewater disposal systems.
(2) Effect of Initial Orders and Notices of
Violation.
(a) Unless otherwise stated, all initial orders or
notices of violation are effective upon issuance. All initial
orders or notices of violation shall become final if not
contested within 30 days after the date issued.
(b) The date of issuance of an initial order or notice of
violation is the date the initial order or notice of violation is
mailed.
(c) Failure to timely contest an initial order or notice
of violation waives any right of administrative contest,
reconsideration, review, or judicial appeal.
R317-9-3. Contesting an Initial Order or Notice of
Violation.
(1) Procedure.
(a) Initial orders denying or revoking a permit may be
contested by filing a written Request for Agency Action to the
Executive Director, Department of Environmental Quality, PO Box
144810, Salt Lake City, Utah 84114-4810.
(b) Other initial orders and notices of violation, as
described in R317-9-2(1), may be contested by filing a written
Request for Agency Action to the Executive Secretary, Water
Quality Board, Division of Water Quality, PO Box 144870, Salt
Lake City, Utah 84114-4870.
(2) Content Required and Deadline for Request. Any such
request is governed by and shall comply with the requirements of
Subsection 63-46b-3(3). If a request for agency action is made by
a person other than the recipient of an order or notice of
violation, the request for agency action shall also specify in
writing sufficient facts to allow the presiding officer to
determine whether the person has standing under R317-9-6(3) to
bring the requested action.
(3) A request for agency action made to contest an
initial order or notice of violation shall, to be timely, be
received for filing within 30 days of the issuance of the initial
order or notice of violation.
(4) Stipulation for Extending Time to File Request. The
executive secretary and the recipient of an initial order or
notice of violation may stipulate to an extension of time for
filing the request, or any part thereof.
R317-9-4. Designation of Proceedings as Formal or
Informal.
(1) Contest of an initial order or notice of violation
resulting from proceedings described in R317-9-2(1) shall be
conducted as a formal proceeding.
(2) The presiding officer in accordance with Subsection
63-46b-4(3) may convert proceedings which are designated to be
formal to informal and proceedings which are designated as
informal to formal if conversion is in the public interest and
rights of all parties are not unfairly prejudiced.
R317-9-5. Notice of and Response to Request for Agency
Action.
(1) The presiding officer shall promptly review a request
for agency action and shall issue a Notice of Request for Agency
Action in accordance with Subsection 63-46b-3(3)(d) and (e). If
further proceedings are required and the matter is not set for
hearing at the time the Notice is issued, notice of the time and
place for a hearing shall be provided promptly after the hearing
is scheduled.
(2) The Notice shall include a designation of parties
under R317-9-6(3), and shall notify respondents that any response
to the Request for Agency Action shall be due within 30 days of
the day the Notice is mailed, in accordance with
63-46b-6.
R317-9-6. Parties and Intervention.
(1) Determination of a Party. The following persons are
parties to an adjudicative proceeding:
(a) The person to whom an initial order or notice of
violation is directed, such as a person who submitted a permit
application or approval request that was approved or disapproved
by initial order of the executive secretary;
(b) The executive secretary of the board;
(c) All persons to whom the presiding officer has granted
intervention under R317-9-6(2); and
(d) Any other person with standing who brings a Request
for Agency Action as authorized by the Utah Administrative
Procedures Act and these rules.
(2) Intervention.
(a) A Petition to Intervene shall meet the requirements
of Section 63-46b-9. Except as provided in (2)(c), the timeliness
of a Petition to Intervene shall be determined by the presiding
officer under the facts and circumstances of each case.
(b) Any response to a Petition to Intervene shall be
filed within 20 days of the date the Petition was filed, except
as provided in R317-9-6(2)(c).
(c) A person seeking to intervene in a proceeding for
which agency action has not been initiated under Section 63-46b-3
may file a Request for Agency Action at the same time he files a
Petition for Intervention. Any such Request for Agency Action and
Petition to Intervene must be received by the presiding officer
for filing within 30 days of the issuance of the initial order or
notice of violation being challenged. The time for filing a
Request for Agency Action and Petition to Intervene may be
extended by stipulation of the executive secretary, the person
subject to an initial order or notice of violation, and the
potential intervenor.
(d) Any response to a Petition to Intervene that is filed
at the same time as a Request for Agency Action shall be filed on
or before the day the response to the Request for Agency Action
is due.
(e) A Petition to Intervene shall be granted if the
requirements of Subsection 63-46b-9(2) are met.
(3) Standing. No person may initiate or intervene in an
agency action unless that person has standing. Standing shall be
evaluated using applicable Utah case law.
(4) Designation of Parties. The presiding officer shall
designate each party as a petitioner or respondent.
(5) Amicus Curiae (Friend of the Court). A person may be
permitted by the presiding officer to enter an appearance as
amicus curiae (friend of the court), subject to conditions
established by the presiding officer.
R317-9-7. Conduct of Proceedings.
(1) Role of Executive Director
The Executive Director is the 'agency head' as
that term is used in UAPA for proceedings regarding the denial or
revocation of a permit. The Executive Director is also the
"presiding officer", as that term is used in UAPA,
except the Executive Director may by order appoint a Presiding
Officer to preside over all or a portion of the
proceedings.
(2) Role of Board.
(a) The board is the "agency head" as that term
is used in Title 63, Chapter 46b for all proceedings not
specified in R317-9-7(1). The board is also the "presiding
officer," as that term is used in Title 63, Chapter 46b,
except:
(i) The chair of the board shall be considered the
presiding officer to the extent that these rules allow;
and
(ii) The board may appoint one or more presiding officers
to preside over all or a portion of the proceedings.
(b) The chair of the board may delegate the chair's
authority as specified in this rule to another board
member.
(3) Appointed Presiding Officers. Unless otherwise
explicitly provided by written order, any appointment of a
presiding officer shall be for the purpose of conducting all
aspects of an adjudicative proceeding, except rulings on
intervention, stays of orders, dispositive motions, and issuance
of the final order. As used in this rule, the term
"presiding officer" shall mean "presiding
officers" if more than one presiding officer is
appointed.
(4) Counsel for the Presiding Officer. The Presiding
Officer may request that Counsel for the Presiding Officer
provide legal advice regarding legal procedures, pending motions,
evidentiary matters and other legal issues.
(5) Pre-hearing Conferences. The presiding officer may
direct the parties to appear at a specified time and place for
pre-hearing conferences for the purposes of establishing
schedules, clarifying the issues, simplifying the evidence,
facilitating discovery, expediting proceedings, encouraging
settlement, or giving the parties notice of the presiding
officer's availability to parties.
(6) Pre-hearing Documents.
(a) At least 15 business days before a scheduled hearing,
the executive secretary shall compile a draft list of prehearing
documents as described in (b), and shall provide the list to all
other parties. Each party may propose to add documents to or
delete document from the list. At least seven business days
before a scheduled hearing, the executive secretary shall issue a
final prehearing document list, which shall include only those
documents upon which all parties agree unless otherwise ordered
by the presiding officer. All documents on the final prehearing
document list shall be made available to the presiding officer
prior to the hearing, and shall be deemed to be
authenticated.
(b) The prehearing document list shall ordinarily include
any pertinent permit application, any pertinent inspection
report, any pertinent draft document that was released for public
comment, any pertinent public comments received, any pertinent
initial order or notice of violation, the request for or notice
of agency action, and any responsive pleading. The list is not
intended to be an exhaustive list of every document relevant to
the proceeding, however any document may be included upon the
agreement of all parties.
(7) Briefs.
(a) Unless otherwise directed by the presiding officer,
parties to the proceeding shall submit a pre-hearing brief, which
shall include a proposed order meeting the requirements of
63-46b-10, at least fifteen business days before the hearing. The
prehearing brief shall be limited to 20 pages exclusive of the
proposed order.
(b) Post-hearing briefs and responsive briefs will be
allowed only as authorized by the presiding officer.
(8) Schedules.
(a) The parties are encouraged to prepare a joint
proposed schedule for discovery, for other pre-hearing
proceedings, for the hearing, and for any post-hearing
proceedings. If the parties cannot agree on a joint proposed
schedule, any party may submit a proposed schedule to the
presiding officer for consideration.
(b) The presiding officer shall establish a schedule for
the matters described in (a) above.
(9) Motions. All motions shall be filed a minimum of 12
days before a scheduled hearing, unless otherwise directed by the
presiding officer. A memorandum in opposition to a motion may be
filed within 10 days of the filing of the motion, or at least one
day before any scheduled hearing, whichever is earlier. Memoranda
in support of or in opposition to motions may not exceed 15 pages
unless otherwise provided by the presiding officer.
(10) Filing and Copies of Submissions. The original of
any motion, brief, petition for intervention, or other submission
shall be filed with the executive secretary. In addition, the
submitter shall provide a copy to each presiding officer, to each
party of record, and to all persons who have petitioned for
intervention, but for whom intervention has been neither granted
nor denied.
R317-9-8. Hearings.
The 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.
R317-9-9. Orders.
(1) Recommended Orders of Appointed Presiding
Officers.
(a) The appointed presiding officer shall prepare a
recommended order for the board or executive director, as
appropriate, and shall provide copies of the recommended order to
the board or executive director and to all parties.
(b) Any party may, within 10 days of the date the
recommended order is mailed, delivered, or published, comment on
the recommended order. Such comments shall be limited to 15 pages
and shall cite to the specific parts of the record which support
the comments.
(c) The board or executive director shall review the
recommended order, comments on the recommended order, and those
specific parts of the record cited by the parties in any
comments. The board or executive director shall then determine
whether to accept, reject, or modify the recommended order. The
board or executive director may remand part or all of the matter
to the presiding officer or may itself act as presiding officers
for further proceedings.
(d) The board or executive director may modify this
procedure with notice to all parties.
(2) Final Orders. The board or executive director shall
issue a final order which shall include the information required
by Section 63-46b-10 or Subsection 63-46b-5(1)(i).
R317-9-10. Stays of Orders.
(1) Stay of Contested Permit Conditions in UIC or UPDES
Permits Pending Final Agency Action.
(a) If a permit applicant files a request for review
under this rule for a UIC or UPDES permit that involves a new
facility or new injection well, new source, new discharger or
recommending discharger, no stay is available and the applicant
shall be without a permit for the proposed new facility,
injection well, source or discharger pending final agency
action.
(b) If any other permittee files a request for review of
a UIC or UPDES permit under this rule in order to contest permit
conditions, the effect of the contested permit conditions shall
be stayed pending final agency action. The effect of uncontested
permit conditions shall be stayed only as described in paragraph
R317-9-10(1)(c).
(c) Uncontested conditions which are not severable from
those contested under R317-9-10(1)(b) shall be stayed together
with the contested conditions. Stayed provisions of permits for
existing facilities and sources shall be identified by the
Presiding Officer. All other provisions of the permit for the
existing facility or source shall remain fully effective and
enforceable.
(d) Stays based on cross effects. The presiding officer
may grant a stay of an order on the grounds that administrative
review of one permit may result in changes to another
state-issued permit only when each of the permits involved has
been challenged as provided in this rule.
(2) Stay of All Other Orders Pending Agency
Action.
(a) For any order not described in R317-9-10(1), a party
seeking a stay of the challenged order during an adjudicative
proceeding shall file a motion with the presiding officer. If
granted, a stay would suspend the challenged order for the period
as directed by the presiding officer.
(b) The presiding officer may order a stay of the order
if the party seeking the stay demonstrates the
following:
(i) The party seeking the stay will suffer irreparable
harm unless the stay is issued;
(ii) The threatened injury to the party seeking the stay
outweighs whatever damage the proposed stay is likely to cause
the party restrained or enjoined;
(iii) The stay, if issued, would not be adverse to the
public interest; and
(iv) There is substantial likelihood that the party
seeking the stay will prevail on the merits of the underlying
claim, or the case presents serious issues on the merits which
should be the subject of further adjudication.
(3) Stay of Orders Pending Judicial Review.
(a) A party seeking a stay of the presiding officer's
final order during the pendency of judicial review shall file a
motion with the presiding officer that issued the final
order.
(b) The presiding officer may grant a stay of its order
during the pendency of judicial review if the standards of
R317-9-10(1)(b) are met.
R317-9-11. Reconsideration.
No agency review under Section 63-46b-12 is available. A
party may request reconsideration of an order of the presiding
officer as provided in Section 63-46b-13.
R317-9-12. Disqualification of Board Members or Other
Presiding Officers.
(1) Disqualification of Board Members or Other Presiding
Officers.
(a) A member of the board or other presiding officer
shall disqualify himself from performing the functions of the
presiding officer regarding any matter in which he, or his
spouse, or a person within the third degree of relationship to
either of them, or the spouse of such person:
(i) Is a party to the proceeding, or an officer,
director, or trustee of a party;
(ii) Has acted as an attorney in the proceeding or served
as an attorney for, or otherwise represented a party concerning
the matter in controversy;
(iii) Knows that he has a financial interest, either
individually or as a fiduciary, in the subject matter in
controversy or in a party to the proceeding;
(iv) Knows that he has any other interest that could be
substantially affected by the outcome of the proceeding;
or
(v) Is likely to be a material witness in the
proceeding.
(b) A member of the board or other presiding officer is
also subject to disqualification under principles of due process
and administrative law.
(c) These requirements are in addition to any
requirements under the Utah Public Officers' and
Employees' Ethics Act, Utah Code Ann. Section 67-16-1 et
seq.
(2) Motions for Disqualification. A motion for
disqualification shall be made first to the presiding officer. If
the presiding officer is appointed, any determination of the
presiding officer upon a motion for disqualification may be
appealed to the board.
R317-9-13. Declaratory Orders.
(1) A request for a declaratory order may be filed in
accordance with the provisions of Section 63-46b-21. The request
shall be titled a petition for declaratory order and shall meet
the requirements of 63-46b-3(3). The request shall also set out a
proposed order.
(2) Requests for declaratory order, if set for
adjudicative hearing, will be conducted using formal procedures
unless converted to an informal proceeding under R317-9-4(2)
above.
(3) The provisions of Section 63-46b-4 through 63-46b-13
apply to declaratory proceedings, as do the provisions of this
Rule R317-9.
R317-9-14. Miscellaneous.
(1) Modifying Requirements of Rules. For good cause, the
requirements of these rules may be modified by order of the
presiding officer.
(2) Extensions of Time. Except as otherwise provided by
statute, and if requested before the expiration of the pertinent
time limit, the presiding officer may approve extensions of any
time limits established by this rule, and may extend time limits
adopted in schedules established under R317-9-7(6). The presiding
officer may also postpone hearings. If the Board is presiding
officer, the chair of the board may act as presiding officer for
purposes of this paragraph.
(3) Computation of Time. Time shall be computed as
provided in Rule 6(a) of the Utah Rules of Civil Procedure except
that no additional time shall be allowed for service by
mail.
(4) Appearances and Representation.
(a) An individual who is a participant to a proceeding,
or an officer designated by a partnership, corporation,
association, or governmental entity which is a participant to a
proceeding, may represent his, her, or its interest in the
proceeding.
(b) Any participant may be represented by legal counsel.
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 bar of this court. Admission pro hac vice shall be granted
for nonresident applicants only if the applicant associates with
an active local member of the Utah State Bar with whom counsel
for all parties and the presiding officer may communicate
regarding the proceeding and upon whom papers will be
served.
(5) Other Forms of Address. Nothing in these rules shall prevent any person from requesting an opportunity to address the board as a member of the public, rather than as a party. An opportunity to address the board shall be granted at the discretion of the board. Addressing the board in this manner does not constitute a request for agency action under R317-9-3.
(6) Settlement. A settlement may be through an administrative order or through a proposed judicial consent decree, subject to the agreement of the settlers.
(7) Requests for Records. Requests for records and related assessments of fees for records under the Title 63, Chapter 2, Utah Government Record Access and Management Act, are not governed by Title 63, Chapter 46b, Utah Administrative Procedures Act, or by this rule.
(8) Grants and loans. Determinations with respect to grants and loans made under R317-101, R317-102, and R317-103 are not governed by Title 63, Chapter 46b, Utah Administrative Procedures Act, or by this rule.
]
KEY: [water pollution]adjudicative proceedings, administrative [procedures]proceedings, hearings
Date of Enactment or Last Substantive Amendment: [February 5, 2003]2011
Notice of Continuation: February 1, 2008
Authorizing, and Implemented or Interpreted Law: [63-46b]19-1-103; 19-5-104; 63G-4-201 through 63G-4-205; 63G-4-503
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/2011/b20110501.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.
Text to be deleted is struck through and surrounded by brackets (e.g., [example]). Text to be added is underlined (e.g., example). Older browsers may not depict some or any of these attributes on the screen or when the document is printed.
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.