File No. 34699
This rule was published in the May 1, 2011, issue (Vol. 2011, No. 9) of the Utah State Bulletin.
Environmental Quality, Environmental Response and Remediation
Rule R311-210
Administrative Procedures for Underground Storage Tank Act Adjudicative Proceedings
Notice of Proposed Rule
(Repeal and Reenact)
DAR File No.: 34699
Filed: 04/14/2011 04:31:49 PM
RULE ANALYSIS
Purpose of the rule or reason for the change:
See the companion rulemaking proposing new administrative procedures rule at Rule R305-6 (DAR No. 34472), published in the March 15, 2011, Bulletin on pg. 53. The Department of Environmental Quality (DEQ) is updating its rule governing administrative procedures, and it is simultaneously consolidating those procedures into one rule. Updating is needed for several reasons. A 2009 amendment to Section 19-1-301 required the Department to use administrative law judges for most administrative proceedings. Many of the updates are needed to incorporate that statutory change. Updates are also needed to make clarifications and improvements in administrative procedures, changes based on the Department's accumulated experience with administrative procedures. The purpose of specifying administrative procedures generally is to ensure that all participants will have information about how administrative proceedings will be conducted, and to ensure that the proceedings are conducted fairly and efficiently.
Summary of the rule or change:
DEQ is proposing to consolidate rules currently found in Rule R311-210 and several other places in DEQ's rules. In addition, the new rule makes many changes to existing rules governing administrative proceedings, including changes to encourage informal discovery and to limit discovery to appropriate subjects (proposed Section R305-6-105); changes to require that for decisions to be made by an executive secretary of a board, comments must be provided to the executive secretary in order to preserve a commenter's right to challenge the executive secretary's decision (proposed Section R305-6-209); and changes that specify situations in which declaratory actions should not be considered (proposed Section R305-6-302).
State statutory or constitutional authorization for this rule:
- Sections 63G-4-201 through 63G-4-205
- Section 19-1-301
- Section 63G-4-503
Anticipated cost or savings to:
the state budget:
The changes to administrative proceedings from those currently being used are not expected to be substantial enough to have an impact on the budget of any participant. Although some changes have been proposed to improve efficiency, e.g., new requirements regarding discovery in Section R305-6-209, it is also anticipated that efficiencies will be offset by a steadily increasing caseload.
local governments:
There is no direct impact on local government, except that they may be regulated entities that would be governed by the rule. The changes to administrative proceedings from those currently being used are not expected to be substantial enough to have an impact on the budget of any participant. Although some changes have been proposed to improve efficiency, e.g., new requirements regarding discovery in Section R305-6-209, it would be speculative to suggest that the impact of any improvement would be measurable savings. It is also anticipated that efficiencies will be offset by a steadily increasing caseload.
small businesses:
The changes to administrative proceedings from those currently being used are not expected to be substantial enough to have an impact on the budget of any participant. Although some changes have been proposed to improve efficiency, e.g., new requirements regarding discovery in Section R305-6-209, it would be speculative to suggest that the impact of any improvement would be measurable savings for any specific proceeding.
persons other than small businesses, businesses, or local governmental entities:
Individuals, partnerships, and other entities can be regulated entities that will be governed by the new rule. The changes to administrative proceedings from those currently being used are not expected to be substantial enough to have an impact on the budget of any participant. Although some changes have been proposed to improve efficiency, e.g., new requirements regarding discovery in Section R305-6-209, it would be speculative to suggest that the impact of any improvement would be measurable savings for any specific proceeding.
Compliance costs for affected persons:
The changes to administrative proceedings from those currently being used are not expected to be substantial enough to have an impact on the budget of any participant. Although some changes have been proposed to improve efficiency, e.g., new requirements regarding discovery in Section R305-6-209, it would be speculative to suggest that the impact of any improvement would be measurable savings for any specific proceeding.
Comments by the department head on the fiscal impact the rule may have on businesses:
The changes to administrative proceedings from those currently being used are not expected to be substantial enough to have an impact on the budget of any participant. Although some changes have been proposed to improve efficiency, e.g., new requirements regarding discovery in Section R305-6-209, it would be speculative to suggest that the impact of any improvement would be measurable savings for any specific proceeding.
Amanda Smith, Executive Director
The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:
Environmental QualityEnvironmental Response and Remediation
195 N 1950 W
SALT LAKE CITY, UT 84116-3085
Direct questions regarding this rule to:
- Laura Lockhart at the above address, by phone at 801-366-0283, by FAX at 801-366-0292, or by Internet E-mail at llockhart@utah.gov
Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:
05/31/2011
This rule may become effective on:
07/01/2011
Authorized by:
Amanda Smith, Executive Director
RULE TEXT
R311. Environmental Quality, Environmental Response and Remediation.
R311-210. Administrative Procedures.
R311-210-1. Administrative Procedures.
Administrative proceedings are governed by Rule R305-6.
[
R311-210. Administrative Procedures for Underground Storage
Tank Act Adjudicative Proceedings.
R311-210-1. Definitions.
Definitions are found in Section R311-200.
R311-210-2. General Provisions.
(a) In accordance with the Utah Administrative Procedures
Act (UAPA), Utah Code Annotated, 1953 as amended, Section
63G-4-102 et seq., these rules set forth procedures which govern
orders and notices by the Executive Secretary and adjudicative
proceedings before the Executive Secretary, the Board and before
the Executive Director. The Executive Secretary may issue
UAPA-exempt orders or notices of violation as provided in
Subsection 63G-4-102(2)(k) or may issue orders or notices under
UAPA.
(b) Recognizing the potential for an ever increasing
burden from adjudicating a matter, these rules are to facilitate
and encourage that disputes be resolved at the lowest level
possible.
(c) These rules are not intended to be comprehensive,
but, are for supplementation, and provide for the inherent needs
and unique purposes of proceedings directed or addressed by the
Underground Storage Tank Act.
(d) These rules shall be liberally construed to secure a
just, speedy and economical determination of all issues
presented. These rules shall also be construed to be in
compliance with the UAPA as far as the UAPA is applicable, the
Environmental Quality Code (Section 19-1 et seq.) and the
Underground Storage Tank Act. Whenever indicated, certain
provisions have exclusive application to either UAPA-exempt, or
UAPA formal or informal proceedings.
(e) Individuals who are participants to a proceeding, an
agency which is a participant to a proceeding, or an individual
designated by a partnership, corporation, association or
governmental subdivision may represent their interest in the
proceeding. Any participant may be represented by an attorney
licensed to practice in the State of Utah or attorneys licensed
to practice law in another jurisdiction which meet the rules of
the Utah State Bar for practicing law before the courts of the
State of Utah.
(f) 1. Issuance of any order or notice shall be made by
certified mail to the party's most current address available
to the agency. The agency may presume that the most current
address available for an owner or operator is provided in the
notification form that owners and operators are required to file
with the agency. If delivery of certified mail is refused, the
issued order or notice shall then be sent by regular
mail.
2. All subsequent papers shall be sent by regular mail to
each party or to the party's attorney if an attorney for that
party has entered an appearance. Service shall be made at the
address of initial service or at an address subsequently provided
to the Presiding Officer and all parties.
3. In matters where the Executive Secretary is a
participant, service shall be made to the Executive Secretary and
the attorney representing the Executive Secretary.
(g) Parties that request a determination of responsible
parties or apportionment of liability among responsible parties
shall pay the costs of the action requested at a rate set by the
state legislature if the request is granted. Parties that request
agency review of an action which determined responsible parties
or apportioned liability shall pay the costs of further
proceedings at a rate set by the state legislature. However, when
a final determination of liability is made and the requesting
party is less than one hundred per cent liable, the costs of the
proceedings shall be included in the apportionment decision and
the requesting party may recover its costs from the other parties
according to each party's apportioned liability. If the
agency initiates such proceedings without a requesting party, the
agency shall pay the costs of the proceedings and may recover
costs of the proceedings as provided above.
(h) Except as otherwise stated in Section R311-210,
informal adjudicative proceedings shall be conducted in
accordance with Section 63G-4-203 of UAPA.
(i) A contested order revoking a certificate of
compliance may be, in accordance with Section 19-6-414(3),
appealed to the Executive Director. In such contested orders the
term "Board" as used in R311-210 means the Executive
Director.
(j) The term "issue" as in issuing an order
means the time a signed order is mailed in accordance with these
rules. Where delivery of an order or notice is refused, the date
of issuance shall be the date the refused order or notice was
sent by certified mail.
(k) Time shall be computed as provided in Rule 6 of the
Utah Rules of Civil Procedure.
(l) At the time these rules or any amendments become
effective, they will apply to ongoing adjudicative
proceedings.
R311-210-3. Orders and Notices of Violation.
(a) All UAPA-exempt orders or notices of violation issued
under 63G-4-102(2)(k) are effective upon issuance unless
otherwise provided in the order and shall become final if not
contested within 30 days after the date issued. Except as
provided in subsection R311-210-3(b), failure to timely contest a
UAPA-exempt order or notice of violation waives any right of
administrative contest, reconsideration, review or judicial
appeal. The contesting party has the burden of proving that an
order or notice of violation was contested within 30 days of its
issuance.
(b) A party may seek to have the Executive Secretary set
aside an order or notice of violation which was not contested
within 30 days and became final by following the procedures
outlined in the Utah Rules of Civil Procedure for setting aside
default judgments.
1. A motion to set aside an order or notice of violation
that became final shall be made to the Executive
Secretary.
2. If a motion to set aside an order or notice of
violation that became final is denied, the party may seek
reconsideration or agency review on only that decision to deny
such motion to set aside the order or notice.
(c) In proceedings involving multiple parties, a party
that has an order or notice of violation issued against it which
becomes final by not being timely contested is precluded from
participating in any further adjudicative proceedings with the
other parties on the matter, unless the Executive Secretary sets
aside the order under R311-210-3(b) or unless such party is
permitted to enter an appearance as Amicus Curiae as provided in
R311-210-6(g).
(d) All initial orders and notices of violation issued by
the Executive Secretary shall be in a log that is available for
public inspection during office hours.
R311-210-4. Contesting a UAPA-exempt Order or Notice of
Violation Issued by the Executive Secretary.
(a) The validity of any UAPA-exempt order or notice of
violation issued by the Executive Secretary may be contested by
filing a request for agency action. A request for agency action
to contest a UAPA-exempt order or notice of violation and all
subsequent proceedings acting on such a request are governed by
the UAPA as provided in Subsection 63G-4-102(2)(k).
(b)(1) Except as provided in subparagraph (c)(1), the
validity of a UAPA-exempt order or notice of violation may be
contested by filing a request for agency action, as specified in
Section 63G-4-201 of the UAPA, with the Board at the Solid and
Hazardous Waste Control Board, Division of Environmental Response
and Remediation, 168 North 1950 West, 1st Floor, PO Box 144840,
Salt Lake City, Utah 84114-4840.
(2) The petitioner's request for agency action shall
clearly express the reasons, facts and legal authority which
forms the basis for contesting the order or notice of violation.
The petitioner shall refer specifically to each numbered fact and
violation arrived at in the order or notice of violation and with
correspondingly numbered paragraphs shall admit or with
appropriate explanation deny or dispute each fact and violation
arrived at in the order or notice of violation. If the petitioner
has other claims or defenses, the petitioner with reasons, facts
and legal authority shall in short plain terms assert such claims
or defenses.
(c)(1) A UAPA-exempt notice revoking a certificate of
compliance under Section 19-6-414 may be contested by filing a
request for agency action with the Executive Director of the
Department of Environmental Quality at the Department of
Environmental Quality, Office of the Executive Director, 168
North 1950 West, 2nd Floor, PO Box 144810, Salt Lake City, Utah
84114-4810.
(2) The petitioner's request for agency action with
the Executive Director shall conform with Section 63G-4-201 of
the UAPA and the above subparagraph (b)(2).
(d) Any request for agency action must be received for
filing within thirty (30) days of the date the Executive
Secretary issues the order or notice of violation.
(e) Notice of the time and place of any scheduled hearing
for a request for agency action shall be given as provided in
Section 63G-4-201(d) of UAPA. If a hearing has not been
scheduled, the response shall give notice of the time and place
of a pre-hearing conference to appropriately schedule a hearing.
Notice of the time and place of a hearing shall be provided
promptly after the hearing is scheduled.
R311-210-5. Contesting an Order or Notice of Violation
Issued by the Executive Secretary Under UAPA.
(a) The recipient of an order or notice of violation
issued by the Executive Secretary under UAPA may request agency
review, as provided in Section 63G-4-301. Except as provided in
subparagraph (b), agency review of a contested order issued under
UAPA may be requested by filing a request for review with the
Board at the Solid and Hazardous Waste Control Board, UST, 168
North 1950 West, 1st Floor, PO Box 144840, Salt Lake City, Utah
84114-4840.
(b) A notice revoking a certificate of compliance under
Section 19-6-414 that is issued by the Executive Secretary under
UAPA may be contested by filing a request for review with the
Executive Director of the Department of Environmental Quality at
the Department of Environmental Quality, Office of the Executive
Director, 168 North 1950 West, 2nd Floor, PO Box 144810, Salt
Lake City, Utah 84114-4810.
(c) Agency review of an order or notice is governed by
Section 63G-4-301.
R311-210-6. Parties and Intervention.
(a) The following persons are parties to a proceeding
governed by this rule:
1. The person or persons to whom the challenged order or
notice of violation is directed;
2. The Executive Secretary; and
3. All persons whose legal rights or interests are
substantially affected by the proceeding, and to whom
intervention rights have been granted under
R311-210-6(d).
(b) In a proceeding requested by the person to whom the
challenged order or notice of violation is directed, that person
shall be the petitioner and the Executive Secretary or any other
non-requesting parties shall be the respondent.
(c) In a proceeding requested by the person requesting
intervention, the intervenor shall be the petitioner (provided
that intervention is granted), and the Executive Secretary and
any persons to whom the challenged order or notice of violation
is directed shall be the respondents.
(d) Intervention: A person who is not a party to a
proceeding may request intervention under Section 63G-4-207 of
the UAPA for the purpose of filing a request for agency action,
and may simultaneously file that request.
(e) Any request for intervention and agency action must
be received as provided in R311-210-4 within 30 days of the date
of the pertinent order or notice of violation. The person seeking
intervention shall provide copies of the request and any
accompanying motions, notices, and requests to all
parties.
(f) Any party may, within 20 days of the receipt of the
agency's notice of a request for agency action issued under
63G-4-201(3)(d) and (e) or such earlier time as established by
the presiding officer, respond to a request for intervention. If
no presiding officer with a general appointment exists, the Chair
of the Board may act as presiding officer for purposes of this
paragraph.
(g) Persons may be permitted by the presiding officer to
enter an appearance as Amicus Curiae, subject to conditions
established by the presiding officer.
R311-210-7. Presiding Officer.
(a) In proceedings to review UAPA-exempt orders and
notices of violations, the Board is the "agency head"
as the term is used in the UAPA.
(b) When acting as agency head, the Board is the
"presiding officer" as that term is used in the UAPA,
except:
1. the Chair of the Board shall be considered the
presiding officer to the extent that these rules allow;
and
2. the Board may by order appoint a presiding officer to
preside over all or a portion of the proceedings.
(c) When a UAPA proceeding is before the Executive
Secretary, the Executive Secretary is the "agency head"
and the "Presiding Officer," and the Board is the
"superior agency" as those terms are used in the UAPA.
When acting as agency head, the Executive Secretary may appoint
an individual or panel to be the Presiding Officer.
(d) A presiding officer when appointed by the appointing
authority shall be empowered with such authority as granted by
the appointing authority and the UAPA, except making final
substantive decisions and as may be limited by Section R311-210
or the appointing authority.
R311-210-8. Designation of Formal Proceedings.
(a) Proceedings pursuant to a request for agency action
are designated as formal, including: enforcement, violations,
non-compliance, civil penalties, assessments, revocations, lapsed
or terminated certificates, abatements, corrective plans,
releases, tank tightness, claims, and other matters determining a
person's legal interest.
(b) UAPA proceedings before the Executive Secretary
including those determining responsible parties and apportioning
liability among responsible parties shall be designated
formal.
R311-210-9. Conversion of Proceedings.
(a) In accordance with the UAPA, the presiding officer,
may, at any time, convert proceedings it is adjudicating which
are designated informal to formal, and proceedings which are
designated as formal to informal if conversion is in the public
interest and rights of all parties are not unfairly
prejudiced.
(b) If multiple issues are part of one proceeding, the
presiding officer may separate the proceedings to convert one or
more of the matters from formal to informal or informal to formal
while allowing the other matters to proceed at the ongoing
designation.
R311-210-10. Preliminary Matters to Apportionment and Other
Proceedings.
(a) The Executive Secretary may request owners or
operators of a facility that had a release of a regulated
substance or any persons identified as potential responsible
parties to provide information and documentation pertinent to the
identification of other responsible parties. However, this does
not prevent the Executive Secretary from determining responsible
parties and apportioning liability. If information identifying or
otherwise concerning other potentially responsible parties is
provided, the forwarding of such information to the Executive
Secretary is not to be construed as a request to determine
responsible parties or apportion liability.
(b) The Executive Secretary may make a preliminary
identification of as many responsible parties as reasonably
possible that are to be a part of an initial proceeding. The
preliminary identification of responsible parties does not
constitute an order. The preliminary identification may be made
solely from information provided in the manner described in
subsection R311-210-10(a). In making such a determination, the
Executive Secretary may assess whether any identification of a
responsible party by other parties is without merit, or may find
that no grounds exist to identify such person as a responsible
party.
(c) Before any proceeding is commenced, the Executive
Secretary, or a representative of the Executive Secretary may
seek to resolve the impending proceeding by encouraging or
facilitating settlement.
R311-210-11. Multiple Issues or Parties.
(a) Multiple issues may be determined in one proceeding,
or in one resulting order or notice of violation.
(b) Multiple issues having been determined in a single
proceeding may, if contested, proceed separately.
(c) The naming or identifying of responsible parties as
part of an investigation whether or not it results in an order or
notice of violation, or as part of an adjudication does not
preclude the naming or identifying of different or additional
responsible parties in the same investigation or adjudication for
different issues, or separate investigations or adjudications
concerning different issues.
R311-210-12. Motions.
(a) In an informal proceeding, a motion or response to a
motion may be submitted orally or in writing as directed by the
presiding officer.
(b) In a formal proceeding, any motion or response to a
motion shall be submitted in writing to the presiding officer,
unless otherwise directed by the presiding officer. The motion or
response may be accompanied by a short supporting memorandum of
fact and law. Supporting or contravening affidavits may be
submitted with the motion or response.
(c) Responses to motions must be received by the
presiding officer ten days after the motion is submitted, unless
otherwise directed by the presiding officer.
(d) Although the agency or parties may file responses as
provided in R311-210-12(c), such responses are not required and
the agency or parties will not be subject to default for
declining to file responses.
(e) Dispositive motions that concern facts or matters
beyond those contained solely within the request for agency
action shall be completed 30 days before the scheduled hearing,
unless otherwise directed by the presiding officer.
R311-210-13. Record Submission and Review.
In accordance with Section 63G-4-203(e), in informal
proceedings the presiding officer may require parties to submit
pertinent information within a designated response period.
Parties' access to information shall be as provided in the
UAPA. The presiding officer may sanction a party that does not
submit information that is requested by the presiding officer.
Such sanctions include exclusion of evidence at the hearing,
being held in default, or other applicable sanctions found in
Rule 37(b) of the Utah Rules of Civil Procedure. If a hearing is
scheduled, a party shall submit to the presiding officer any
information that was not requested that the party intends to use
at the hearing 30 days before the hearing. Failure to timely
submit such information may result in the presiding officer
excluding the information at the hearing.
R311-210-14. Discovery.
(a) In formal proceedings, all parties shall submit to
the presiding officer all relevant information they possess or
are aware of necessary for parties to support their claims or
defenses within 30 days after proceedings are commenced, and with
newly acquired information within 30 days after the party
discovers such information, but not less than 30 days before a
formal hearing. The Executive Secretary satisfies this obligation
by making the public agency file available for inspection. If a
party fails to timely provide the required information, the
presiding officer may enter an order of default, exclude
evidence, or enter other applicable sanctions found in Rule 37(b)
of the Utah Rules of Civil Procedure. Parties submitting the
information shall provide notice to all other parties with a list
or brief summary of all information being submitted. Parties
shall have access to the information submitted to the presiding
officer, and to information acquired through agency
investigations and other information contained in its
files.
(b) In formal proceedings the presiding officer may vary
the manner of discovery if it appears appropriate, or upon the
motion of a party and for good cause shown. If discovery is
varied to be more in accordance with the Utah Rules of Civil
Procedure, copies of all discovery conducted between parties
shall be provided to the presiding officer at the cost to the
party seeking discovery.
(c) In formal proceedings, upon approval by the presiding
officer, any party may serve on any other party a request to
permit entry upon designated land or other property in the
possession or control of the party upon whom the request is
served for the purpose of inspection and measuring, surveying,
photographing, testing, or sampling the property or any
designated object or operation thereon if the information sought
is reasonably calculated to lead to the discovery of admissible
evidence.
1. The request shall set forth the items to be inspected
either by individual item or by category, and describe each item
and category with reasonable particularity. The request shall
specify a reasonable time, place, and manner of making the
inspection and performing the related acts.
2. The party upon whom the request is served shall serve
a written response within 20 days after the service of the
request. The presiding officer may allow a shorter or longer
time. The response shall state with respect to each item or
category, that inspection and related activities will be
permitted as requested, unless the request is objected to, in
which event the reasons for objection shall be stated. The party
submitting the request may move for an order compelling
inspection and seek any sanction referred to above in subsection
(a) with respect to any objection to or failure to respond to the
request or any part thereof, or any failure to permit inspection
as requested.
R311-210-15. Pre-Hearing Matters.
(a) In proceedings in which a hearing may be held, the
presiding officer may, upon written notice to all parties of
record, hold a pre-hearing conference. Matters that may be
discussed at the pre-hearing conference include: setting a
hearing date; formulating or simplifying the issues; obtaining
stipulations, admissions of fact and of documents which will
avoid unnecessary proof; arranging for the exchange of proposed
exhibits or prepared expert testimony; identifying all other
proposed exhibits or witnesses; outlining or reviewing procedures
to be followed; encouraging joint pleadings, exhibits, testimony
and cross-examination where parties have common interests; and
facilitating settlement and other agreements. Any other matters
that may expedite the orderly conduct of the proceedings may be
discussed.
(b) Parties to a proceeding are encouraged to prepare a
joint-proposed schedule addressing matters such as a hearing
date, and motion and discovery cut off dates. If the parties
cannot agree on a joint-proposed schedule, the presiding officer
may consider proposals by any party.
(c) The presiding officer shall establish schedules for
discovery and other pre-hearing proceedings, for the hearing, and
for any post-hearing proceedings.
R311-210-16. Conduct of Formal Hearings.
(a) All formal hearings shall be open to the public,
unless otherwise ordered by the presiding officer for good cause
shown.
(b) The presiding officer shall maintain order and may,
recess the hearing for the time necessary to regain order if a
person engages in disrespectful, disorderly, or contumacious
conduct. The presiding officer may take measures to remove a
person, including participants from the hearing, if necessary, to
maintain order. If a participant shows persistent disregard on
matters of order and procedure, the presiding officer may enter a
sanction on the person including: restricting the person's
participation, putting on evidence, or issuing an order of
default.
(c) If a party desires to employ a court reporter to make
a record of the hearing, the original transcript of the hearing
shall be filed with the presiding officer at no cost to the
agency.
(d) In apportionment proceedings, the order of
presentation of evidence will be as follows, unless otherwise
directed by the presiding officer: the responsible party most
recently involved in the facility, with operators having priority
over owners; then underground storage tank installation
companies, then subsequent responsible parties in the order of
recency of involvement in the facility; intervenor(s); the
agency; and other interested parties. Argument normally will
follow the same order. For other proceedings, the presiding
officer may order the presentation of evidence in a manner deemed
appropriate.
(e) Parties may question opposing witnesses on any matter
relevant to the issue even though the matter was not covered in
direct examination. The presiding officer may limit or exclude
friendly cross-examination. The presiding officer shall
discourage and may prohibit parties from making their case
through cross-examination.
(f) The presiding officer may question any party or
witness and may admit any evidence believed relevant or
material.
(g) The presiding officer may continue a hearing to
another time or place if additional evidence is available or
reasonably expected to be available and the presiding officer
determines such evidence is necessary for the proper
determination of the case.
R311-210-17. Rules of Evidence.
(a) The presiding officer is not bound by the rules of
evidence and need not adhere to the rules as required in civil
actions in the courts of this State. Nevertheless, in UAPA
proceedings, the Utah Rules of Evidence shall be used as an
appropriate guide insofar as they are not inconsistent with the
UAPA and these Rules.
(b) In contested proceedings providing a hearing, if a
witness' testimony has been reduced to writing and filed with
the presiding officer at least 30 days prior to the hearing, the
testimony may be placed into the record as an exhibit. Parties
shall have an opportunity to cross-examine the witness on the
testimony.
R311-210-18. Recommended Orders.
(a) If the presiding officer in a proceeding is an
appointed presiding officer, at the conclusion of the hearing or
taking evidence, the presiding officer cannot make any final
substantive decisions, but, shall take the matter under
advisement and shall submit to the appointing authority
recommended orders. The recommended orders shall follow the form
in the UAPA for signed and issued orders in informal or formal
proceedings. All recommended orders will be public record and
copies shall be distributed to all parties.
(b) Any party may, within 20 days of the date the draft
order is mailed, delivered, or published, comment on the draft
order.
(c) The appointing authority may adopt and sign the
recommended orders or any portion of them as final orders; reject
the recommended orders or any portion of them and make an
independent determination based on the record or order further
proceedings. If the appointing authority adopts or rejects a
portion of the recommended orders, the appointing authority shall
make specific reference to the portion adopted or rejected. If
the appointing authority rejects the entire recommended orders,
the appointing authority shall specifically state that they are
rejected in their entirety. The appointing authority shall cite
specifically to the record for the bases of any independent
determinations in the final orders.
(d) The appointing authority may remand the matter to the
presiding officer to take additional evidence. The presiding
officer thereafter shall submit to the appointing authority new
recommended orders.
(e) The Board adopting and signing recommended orders as
final orders or making independent determinations and signing
them as final orders pursuant to a request for agency action to
contest an initial order does not constitute agency review, but
is open to a request for reconsideration in accordance with
Section 63G-4-302 of the UAPA.
(f) The appointing authority may modify this procedure
with notice to all parties.
R311-210-19. Stays of Orders.
(a) Orders of the Executive Secretary are immediately
effective upon being issued unless otherwise provided in the
order. Upon a timely request for agency action or agency review
to contest such orders, any person who desires a stay of the
order before the next regular Board meeting may request a
stay.
(b) A party seeking a stay of the order of the Executive
Secretary shall file a motion with the presiding
officer.
(c) The presiding officer may order a stay of the order
of the Executive Secretary if the party seeking the stay
demonstrates that:
1. The party seeking the stay will suffer irreparable
harm unless the stay issues;
2. The threatened injury to the party seeking the stay
outweighs whatever damage the proposed stay is likely to cause
the party restrained or enjoined;
3. The stay, if issued, would not be adverse to the
public interest; and
4. There is a substantial likelihood that the party
seeking the stay will prevail on the merits of the underlying
claim, or the case presents serious issues on the merits which
should be the subject of further evaluation by the presiding
officer.
(d) No bond shall be required from the party requesting
the stay.
(e) The Board may grant a stay of its order (or of the
order of its appointed presiding officer) during the pendency of
judicial review if the standards of R311-210-19(c) are
met.
(f) The request for a stay shall be deemed denied if the
presiding officer does not issue a written decision to deny or
grant a stay of any order within ten working days of the filing
of a written motion.
R311-210-20. Standard of Agency Review.
The standard of review of orders issued by the Executive
Secretary following a formal UAPA proceeding that are before the
superior agency shall be the standard delineated in Section
63G-4-403(4)(c)-(h) of UAPA.]
KEY: [petroleum]administrative proceedings, underground storage tanks[*], hearings, adjudicative proceedings
Date of Enactment or Last Substantive Amendment: [October 9, 1998]2011
Notice of Continuation: April 18, 2007
Authorizing, and Implemented or Interpreted Law: 19-1-301; 19-6-105; 19-6-403; 63G-4-201 through 205; 63G-4-503
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.