Second Substitute H.B. 259

Representative Aaron Tilton proposes the following substitute bill:

1 DIVISION OF AIR QUALITY - BOND FOR
2 STAY OF AN ORDER
3 2006 GENERAL SESSION
4 STATE OF UTAH
5 Chief Sponsor: Aaron Tilton
6 Senate Sponsor: Darin G. Peterson
7
8 LONG TITLE
9 General Description:
10 This bill modifies the Air Conservation Act to allow a person to obtain a stay of an
11 order if certain requirements are met.
12 Highlighted Provisions:
13 This bill:
14 . allows an aggrieved person to obtain a stay if the person pays a fee, proves certain
15 elements, and posts a bond;
16 . authorizes the Department of Environmental Quality to establish a fee;
17 . establishes elements for a stay;
18 . authorizes the Air Quality Board to enact rules governing the bond;
19 . directs that the bond be paid to the order recipient and the taxing entity if the board
20 or court finds that the order was properly issued; and
21 . authorizes an aggrieved person to seek judicial review of an Air Quality Board's
22 final order.
23 Monies Appropriated in this Bill:
24 None
25 Other Special Clauses:

26 None
27 Utah Code Sections Affected:
28 AMENDS:
29 19-2-111, as renumbered and amended by Chapter 112, Laws of Utah 1991
30 ENACTS:
31 19-2-108.5, Utah Code Annotated 1953
32 19-2-111.5, Utah Code Annotated 1953
33
34 Be it enacted by the Legislature of the state of Utah:
35 Section 1. Section 19-2-108.5 is enacted to read:
36 19-2-108.5. Stay of an order -- Bond required.
37 (1) An aggrieved person may obtain a stay of an order issued under Section 19-2-108
38 by:
39 (a) filing a motion for a stay with the board;
40 (b) paying the fee established under Subsection (2)(a);
41 (c) proving the elements outlined in Subsection (4); and
42 (d) posting the bond required by Subsection (5).
43 (2) (a) The department shall establish a fee for requesting a stay by following the
44 procedures and requirements of Section 63-38-3.2
45 (b) The department shall reimburse itself for the costs incurred in administering this
46 section from the fee.
47 (3) (a) By following the procedures and requirements of Title 63, Chapter 46b,
48 Administrative Procedures Act, the board shall hold a hearing to determine:
49 (i) whether to grant a stay; and
50 (ii) the amount of the bond required by Subsection (5).
51 (b) A stay granted under Subsection (3)(a)(i) does not take effect until the bond
52 required by Subsection (5) is posted.
53 (4) The board may grant a stay if the person requesting the stay proves that:
54 (a) the person will suffer irreparable harm unless the stay is issued;
55 (b) the person's threatened injury outweighs the damage that the stay is likely to cause
56 the order recipient;

57 (c) the stay, if issued, would not be adverse to the public interest; and
58 (d) there is a substantial likelihood that the person will prevail on the merits of the
59 underlying claim.
60 (5) (a) Except as provided in Section 78-27-12 , each person requesting a stay, other
61 than the order recipient, shall post a bond after the board grants the stay.
62 (b) The board shall enact rules governing the procedures for posting, and the form of,
63 the bond.
64 (c) The board shall require that the bond amount cover:
65 (i) the payment of the costs and damages suffered by the order recipient during the time
66 the stay is in effect, including the order recipient's:
67 (A) employees' wages, salaries, and benefits;
68 (B) lost net revenue; and
69 (C) costs associated with the delay; and
70 (ii) the lost tax revenue from any taxes imposed under Title 59, Revenue and Taxation,
71 that the order recipient would have been subject to if the stay had not been issued.
72 (d) The bond shall be paid to the order recipient and the taxing entity if the board
73 determines that the order was properly issued.
74 Section 2. Section 19-2-111 is amended to read:
75 19-2-111. Review of orders of hearing examiner -- Procedure.
76 [Any] (1) A person aggrieved by an order of a hearing examiner may file a motion for
77 review of the order with the board.
78 (2) An aggrieved person may obtain a stay of the order during the board's review by:
79 (a) filing a motion for a stay with the board;
80 (b) paying the fee established under Subsection 19-2-108.5 (2)(a);
81 (c) proving the elements outlined in Subsection (4); and
82 (d) posting the bond required by Subsection (5).
83 (3) (a) By following the procedures and requirements of Title 63, Chapter 46b,
84 Administrative Procedures Act, the board shall hold a hearing to determine:
85 (i) whether to grant a stay; and
86 (ii) the amount of the bond required by Subsection (5).
87 (b) A stay granted under Subsection (3)(a)(i) does not take effect until the bond

88 required by Subsection (5) is posted.
89 (4) The board may grant a stay if the person requesting the stay proves that:
90 (a) the person will suffer irreparable harm unless the stay is issued;
91 (b) the person's threatened injury outweighs the damage that the stay is likely to cause
92 the order recipient;
93 (c) the stay, if issued, would not be adverse to the public interest; and
94 (d) there is a substantial likelihood that the person will prevail on the merits of the
95 underlying claim.
96 (5) (a) Except as provided in Section 78-27-12 , each person requesting a stay, other
97 than the order recipient, shall post a bond after the board grants the stay.
98 (b) The board shall enact rules governing the procedures for posting, and the form of,
99 the bond.
100 (c) The board shall require that the bond amount cover:
101 (i) the costs and damages suffered by the order recipient during the time the stay is in
102 effect, including the order recipient's:
103 (A) employees' wages, salaries, and benefits;
104 (B) lost net revenue; and
105 (C) costs associated with the delay; and
106 (ii) the lost tax revenue from any taxes imposed under Title 59, Revenue and Taxation,
107 that the order recipient would have been subject to if the stay had not been issued.
108 (d) The bond shall be paid to the order recipient and the taxing entity if the board
109 determines that the order was properly issued.
110 (6) The department shall reimburse itself for the costs incurred in administering this
111 section from the fee established under Subsection 19-2-108.5 (2)(a).
112 Section 3. Section 19-2-111.5 is enacted to read:
113 19-2-111.5. Judicial review of an agency order.
114 (1) (a) A person aggrieved by a board's final order may obtain judicial review of the
115 order after exhausting all administrative remedies.
116 (b) Judicial review of the board's final order is governed by Title 63, Chapter 46b,
117 Administrative Procedures Act.
118 (2) An aggrieved person may obtain a stay of the order during judicial review by:

119 (a) filing a motion for a stay with the board;
120 (b) paying the fee established under Subsection 19-2-108.5 (2)(a);
121 (c) proving the elements outlined in Subsection (4); and
122 (d) posting the bond required by Subsection (5).
123 (3) (a) By following the procedures and requirements of Title 63, Chapter 46b,
124 Administrative Procedures Act, the board shall hold a hearing to determine:
125 (i) whether to grant a stay; and
126 (ii) the amount of the bond required by Subsection (5).
127 (b) A stay granted under Subsection (3)(a)(i) does not take effect until the bond
128 required by Subsection (5) is posted.
129 (4) The board may grant a stay if the person requesting the stay proves that:
130 (a) the person will suffer irreparable harm unless the stay is issued;
131 (b) the person's threatened injury outweighs the damage that the stay is likely to cause
132 the order recipient;
133 (c) the stay, if issued, would not be adverse to the public interest; and
134 (d) there is a substantial likelihood that the person will prevail on the merits of the
135 underlying claim.
136 (5) (a) Except as provided in Section 78-27-12 , each person requesting a stay, other
137 than the order recipient, shall post a bond after the board grants the stay.
138 (b) The board shall enact rules governing the procedures for posting, and the form of,
139 the bond.
140 (c) The board shall require that the bond amount cover:
141 (i) the payment of the costs and damages suffered by the order recipient during the time
142 the stay is in effect, including the order recipient's:
143 (A) employees' wages, salaries, and benefits;
144 (B) lost net revenue; and
145 (C) costs associated with the delay; and
146 (ii) the lost tax revenue from any taxes imposed under Title 59, Revenue and Taxation,
147 that the order recipient would have been subject to if the stay had not been issued.
148 (d) The bond shall be paid to the order recipient and the taxing entity if the court
149 determines that the order was properly issued.

150 (6) The department shall reimburse itself for the costs incurred in administering this
151 section from the fee established under Subsection 19-2-108.5 (2)(a).