H.B. 100

1

ENVIRONMENTAL LITIGATION BOND
2 2006 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: Aaron Tilton
5 Senate Sponsor: Curtis S. Bramble
6
7 LONG TITLE
8 General Description:
9 This bill requires entities that do business in the state to file a bond with the Division of
10 Corporations and Commercial Code when it begins the environmental litigation.
11 Highlighted Provisions:
12 This bill:
13 . defines terms;
14 . requires an entity doing business in Utah to file a bond with the division when it
15 begins environmental litigation;
16 . authorizes the division to:
17 . establish a fee for the bond filing;
18 . hold a hearing to establish the bond amount;
19 . make rules for posting the bond; and
20 . revoke a certificate of existence for failure to post a bond; and
21 . requires the division to revoke a certificate of existence if another state with a
22 similar law has revoked an entity's certificate of existence.
23 Monies Appropriated in this Bill:
24 None
25 Other Special Clauses:
26 None
27 Utah Code Sections Affected:

28 ENACTS:
29 13-1a-10, Utah Code Annotated 1953
30
31 Be it enacted by the Legislature of the state of Utah:
32 Section 1. Section 13-1a-10 is enacted to read:
33 13-1a-10. Bond required for environmental litigation -- Bond hearing.
34 (1) As used in this section:
35 (a) "Division" means the Division of Corporations and Commercial Code created in
36 Section 13-1a-1 .
37 (b) "Environmental litigation" means any action or complaint filed in a United States
38 court or state court:
39 (i) with a cause of action arising after May 1, 2006; and
40 (ii) requesting relief under:
41 (A) the Acid Precipitation Act of 1980, 42 U.S.C. Sec. 8901 through 8912;
42 (B) the Toxic Substances Control Act, 15 U.S.C. Sec. 2601 through 2692;
43 (C) the Atomic Energy Act of 1954, 42 U.S.C. Sec. 2014, 2021, 2022, 2111, 2113, and
44 2114;
45 (D) the Clean Air Act, 42 U.S.C. Sec. 7401 through 7671q;
46 (E) the Federal Water Pollution Control Act, 33 U.S.C. Sec. 1251 through 1387;
47 (F) the Comprehensive Environmental Response, Compensation, and Liability Act of
48 1980, 42 U.S.C. Sec. 9601 through 9675;
49 (G) the Emergency Planning and Community Right-To-Know Act of 1986, 42 U.S.C.
50 Sec. 11001 through 11050;
51 (H) the Endangered Species Act of 1973, 16 U.S.C. Sec. 1531 through 1544;
52 (I) the Energy Supply and Environmental Coordination Act of 1974, 15 U.S.C. Sec.
53 791 through 798;
54 (J) the Federal Land Policy and Management Act of 1976, 43 U.S.C. Sec. 1701 through
55 1785;
56 (K) the Forest and Rangeland Renewable Resources Planning Act of 1974, 16 U.S.C.
57 Sec. 1600 through 1614;
58 (L) the Forest and Rangeland Renewable Resources Planning Act of 1978, 16 U.S.C.

59 Sec. 1641 through 1649;
60 (M) the Healthy Forest Restoration Act of 2003, 16 U.S.C. Sec. 6501 through 6591;
61 (N) the Low-Level Radioactive Waste Policy Act, 42 U.S.C. Sec. 2021b through
62 2021j;
63 (O) the Multiple-Use Sustained-Yield Act of 1960, 16 U.S.C. Sec. 528 through 531;
64 (P) the National Environmental Policy Act of 1969, 42 U.S.C. Sec. 4321 through
65 4370f;
66 (Q) the Noise Control Act of 1972, 42 U.S.C. Sec. 4901 through 4918;
67 (R) the Nuclear Waste Policy Act of 1982, 42 U.S.C. Sec. 10101 through 10270;
68 (S) the Public Health Service Act, 42 U.S.C. Sec. 300f through 300j-26;
69 (T) the Solid Waste Disposal Act, 42 U.S.C. Sec. 6901 through 6992k;
70 (U) the Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. Sec. 1201
71 through 1328;
72 (V) Title 19, Chapter 2, Air Conservation Act;
73 (W) Title 19, Chapter 3, Radiation Control Act;
74 (X) Title 19, Chapter 4, Safe Drinking Water Act;
75 (Y) Title 19, Chapter 5, Water Quality Act;
76 (Z) Title 19, Chapter 6, Part 1, Solid and Hazardous Waste Act;
77 (AA) Title 19, Chapter 6, Part 2, Hazardous Waste Facility Siting Act;
78 (BB) Title 19, Chapter 6, Part 3, Hazardous Substances Mitigation Act;
79 (CC) Title 19, Chapter 6, Part 6, Solid Waste Management Act;
80 (DD) the Administrative Procedures Act, 5 U.S.C. Sec. 701 through 706, when the
81 action or complaint requests judicial review of any federal agency action by the:
82 (I) Environmental Protection Agency;
83 (II) U.S. Army Corps of Engineers;
84 (III) U.S. Department of the Interior;
85 (IV) U.S. Department of Agriculture; or
86 (V) U.S. Department of Transportation; or
87 (EE) Title 63, Chapter 46b, Administrative Procedures Act, when the action or
88 complaint requests judicial review of any agency action by the:
89 (I) Utah Department of Environmental Quality;

90 (II) Utah Department of Natural Resources; or
91 (III) Utah Department of Transportation.
92 (2) The division shall require an entity registered with the division to post a corporate
93 surety bond:
94 (a) in an amount that will cover the payment of the reasonably foreseeable costs and
95 damages suffered in Utah by any person because of the environmental litigation, including:
96 (i) employees' lost wages, salaries, and benefits;
97 (ii) lost net revenue; and
98 (iii) consequential damages, including increased construction costs, because of the
99 litigation;
100 (b) written by a surety licensed to do business within the state;
101 (c) in favor of the state, for the benefit of any person injured in Utah by the
102 environmental litigation; and
103 (d) conditioned upon:
104 (i) the payment of court costs and reasonable attorney's fees to the prevailing party
105 incident to any suit upon the bond; and
106 (ii) the unsuccessful environmental litigation.
107 (3) The division may establish a fee to be paid when posting the bond by following the
108 procedures and requirements of Section 63-38-3.2 .
109 (4) By following the procedures and requirements of Title 63, Chapter 46a, Utah
110 Administrative Rulemaking Act, the division shall make rules governing the procedures for
111 posting the bond.
112 (5) The division shall hold a formal adjudicative proceeding to determine the bond
113 amount by following the procedures and requirements of Title 63, Chapter 46b, Administrative
114 Procedures Act.
115 (6) If an entity fails to file the bond required by Subsection (2):
116 (a) the division shall revoke the certificate of existence or license; and
117 (b) the entity is no longer authorized to transact business in Utah.
118 (7) A person, as defined in Section 68-3-12 , claiming damages as a result of any
119 environmental litigation pursued by an entity registered with the division may file a claim upon
120 the bond for damages against both the principal and the surety.

121 (8) The total aggregate liability on the bond to all persons making claims may not
122 exceed the amount of the bond.
123 (9) If any other state has a provision of law substantially similar to this section, and the
124 other state has revoked an entity's certificate of existence or license or revoked the entity's
125 authority to transact business in that state:
126 (a) the division shall revoke any existing certificate of existence or license; and
127 (b) the entity is no longer authorized to transact business in Utah.




Legislative Review Note
as of 1-9-06 7:50 AM

Based on a limited legal review, this legislation has not been determined to have a high
probability of being held unconstitutional.

Office of Legislative Research and General Counsel