S.B. 70 Enrolled

1

DEPARTMENT OF ENVIRONMENTAL QUALITY
2 AMENDMENTS
3 2009 GENERAL SESSION
4 STATE OF UTAH
5 Chief Sponsor: Margaret Dayton
6 House Sponsor: Melvin R. Brown
7
8 LONG TITLE
9 General Description:
10 This bill amends provisions relating to adjudicative proceedings within the Department
11 of Environmental Quality.
12 Highlighted Provisions:
13 This bill:
14 . defines terms;
15 . authorizes the executive director of the Department of Environmental Quality to
16 appoint an administrative law judge;
17 . requires an administrative law judge to conduct all adjudicative proceedings within
18 the department, except an emergency adjudicative proceeding;
19 . establishes powers, duties, and qualifications for an administrative law judge; and
20 . amends or repeals the powers of boards within the department regarding hearings,
21 adjudicative proceedings, and hearing officers or examiners.
22 Monies Appropriated in this Bill:
23 None
24 Other Special Clauses:
25 None
26 Utah Code Sections Affected:
27 AMENDS:
28 19-1-202, as last amended by Laws of Utah 2005, Chapter 200
29 19-1-301, as last amended by Laws of Utah 2008, Chapter 382

30 19-2-104, as last amended by Laws of Utah 2008, Chapters 68 and 382
31 19-2-108, as renumbered and amended by Laws of Utah 1991, Chapter 112
32 19-2-109.1, as last amended by Laws of Utah 2008, Chapter 382
33 19-2-109.5, as last amended by Laws of Utah 2008, Chapter 382
34 19-2-110, as renumbered and amended by Laws of Utah 1991, Chapter 112
35 19-2-112, as last amended by Laws of Utah 2008, Chapter 382
36 19-3-103.5, as last amended by Laws of Utah 1995, Chapter 90
37 19-4-104, as last amended by Laws of Utah 2008, Chapter 382
38 19-5-111, as renumbered and amended by Laws of Utah 1991, Chapter 112
39 19-5-112, as last amended by Laws of Utah 1995, Chapter 114
40 19-6-104, as last amended by Laws of Utah 2007, Chapter 72
41 19-6-704, as last amended by Laws of Utah 2008, Chapter 382
42 REPEALS:
43 19-2-111, as renumbered and amended by Laws of Utah 1991, Chapter 112
44
45 Be it enacted by the Legislature of the state of Utah:
46 Section 1. Section 19-1-202 is amended to read:
47 19-1-202. Duties and powers of the executive director.
48 (1) The executive director shall:
49 (a) administer and supervise the department;
50 (b) coordinate policies and program activities conducted through boards, divisions,
51 and offices of the department;
52 (c) approve the proposed budget of each board, division, and office within the
53 department;
54 (d) approve all applications for federal grants or assistance in support of any
55 department program; [and]
56 (e) with the governor's specific, prior approval, expend funds appropriated by the
57 Legislature necessary for participation by the state in any fund, property, or service provided

58 by the federal government[.]; and
59 (f) in accordance with Section 19-1-301 , appoint one or more administrative law
60 judges to hear an adjudicative proceeding within the department.
61 (2) The executive director may:
62 (a) issue orders to enforce state laws and rules established by the department except
63 where the enforcement power is given to a board created under Section 19-1-106 , unless the
64 executive director finds that a condition exists [which] that creates a clear and present hazard
65 to the public health or the environment and [which] requires immediate action, and if the
66 enforcement power is vested with a board created under Section 19-1-106 , the executive
67 director may with the concurrence of the governor order any person causing or contributing to
68 the condition to reduce, mitigate, or eliminate the condition;
69 (b) with the approval of the governor, participate in the distribution, disbursement, or
70 administration of any fund or service, advanced, offered, or contributed by the federal
71 government for purposes consistent with the powers and duties of the department;
72 (c) accept and receive funds and gifts available from private and public groups for the
73 purposes of promoting and protecting the public health and the environment and expend the
74 funds as appropriated by the Legislature;
75 (d) make policies not inconsistent with law for the internal administration and
76 government of the department, the conduct of its employees, and the custody, use, and
77 preservation of the records, papers, books, documents, and property of the department;
78 (e) create advisory committees as necessary to assist in carrying out the provisions of
79 this title;
80 (f) appoint division directors who may be removed at the will of the executive director
81 and who shall be compensated in an amount fixed by the executive director;
82 (g) advise, consult, and cooperate with other agencies of the state, the federal
83 government, other states and interstate agencies, affected groups, political subdivisions, and
84 industries in carrying out the purposes of this title;
85 (h) consistent with Title 67, Chapter 19, Utah State Personnel Management Act,

86 employ employees necessary to meet the requirements of this title;
87 (i) authorize any employee or representative of the division to conduct inspections as
88 permitted in this title;
89 (j) encourage, participate in, or conduct any studies, investigations, research, and
90 demonstrations relating to hazardous materials or substances releases necessary to meet the
91 requirements of this title;
92 (k) collect and disseminate information about hazardous materials or substances
93 releases;
94 (l) review plans, specifications, or other data relating to hazardous substances releases
95 as provided in this title; and
96 (m) maintain, update not less than annually, and make available to the public a record
97 of sites, by name and location, at which response actions for the protection of the public health
98 and environment under Title 19, Chapter 6, Part 3, Hazardous Substances Mitigation Act, or
99 under Title 19, Chapter 8, Voluntary Cleanup Program, have been completed in the previous
100 calendar year, and those that the department plans to address in the upcoming year pursuant to
101 this title, including if upon completion of the response action the site:
102 (i) will be suitable for unrestricted use; or
103 (ii) will be suitable only for restricted use, stating the institutional controls identified
104 in the remedy to which use of the site is subject.
105 Section 2. Section 19-1-301 is amended to read:
106 19-1-301. Adjudicative proceedings.
107 (1) As used in this section, "dispositive action" is a final agency action that:
108 (a) a board takes following an adjudicative proceeding on a request for agency action;
109 and
110 (b) is subject to judicial review under Section 63G-4-403 .
111 (2) (a) The department and its boards shall comply with the procedures and
112 requirements of Title 63G, Chapter 4, Administrative Procedures Act.
113 (b) The procedures for an adjudicative proceeding conducted by an administrative law

114 judge are governed by:
115 (i) Title 63G, Chapter 4, Administrative Procedures Act;
116 (ii) rules adopted by a board as authorized by:
117 (A) Subsection 63G-4-102 (6); and
118 (B) this title; and
119 (iii) the Utah Rules of Civil Procedure, in the absence of a procedure established under
120 Subsection (2)(b)(i) or (ii).
121 (3) An administrative law judge shall hear a party's request for agency action made to
122 a board created in Section 19-1-106 .
123 (4) The executive director shall appoint an administrative law judge who:
124 (a) is a member in good standing of the Utah State Bar;
125 (b) has a minimum of:
126 (i) ten years of experience practicing law; and
127 (ii) five years of experience practicing in the field of:
128 (A) environmental compliance;
129 (B) natural resources;
130 (C) regulation by an administrative agency; or
131 (D) a field related to a field listed in Subsections (4)(b)(ii)(A) through (C); and
132 (c) has a working knowledge of the federal laws and regulations and state statutes and
133 rules applicable to a request for agency action.
134 (5) In appointing an administrative law judge who meets the qualifications listed in
135 Subsection (4), the executive director may:
136 (a) compile a list of persons who may be engaged as an administrative law judge pro
137 tempore by mutual consent of the parties to an adjudicative proceeding;
138 (b) appoint an assistant attorney general as an administrative law judge pro tempore;
139 or
140 (c) (i) appoint an administrative law judge as an employee of the department; and
141 (ii) assign the administrative law judge responsibilities in addition to conducting an

142 adjudicative proceeding.
143 (6) (a) An administrative law judge shall:
144 (i) conduct an adjudicative proceeding;
145 (ii) take any action that is not a dispositive action; and
146 (iii) submit to the board a proposed dispositive action, including:
147 (A) written findings of fact;
148 (B) written conclusions of law; and
149 (C) a recommended order.
150 (b) A board may:
151 (i) approve, approve with modifications, or disapprove a proposed dispositive action
152 submitted to the board under Subsection (6)(a); or
153 (ii) return the proposed dispositive action to the administrative law judge for further
154 action as directed.
155 (7) To conduct an adjudicative proceeding, an administrative law judge may:
156 (a) compel:
157 (i) the attendance of a witness; and
158 (ii) the production of a document or other evidence;
159 (b) administer an oath;
160 (c) take testimony; and
161 (d) receive evidence as necessary.
162 (8) A party may appear before an administrative law judge in person, through an agent
163 or employee, or as provided by a board rule.
164 (9) (a) An administrative law judge or board member may not communicate with a
165 party to an adjudicative proceeding regarding the merits of the adjudicative proceeding unless
166 notice and an opportunity to be heard are afforded to all parties.
167 (b) An administrative law judge or board member who receives an ex parte
168 communication shall place the communication into the public record of the proceedings and
169 afford all parties an opportunity to comment on the information.

170 (10) Nothing in this section limits a party's right to an adjudicative proceeding under
171 Title 63G, Chapter 4, Administrative Procedures Act.
172 Section 3. Section 19-2-104 is amended to read:
173 19-2-104. Powers of board.
174 (1) The board may make rules in accordance with Title 63G, Chapter 3, Utah
175 Administrative Rulemaking Act:
176 (a) regarding the control, abatement, and prevention of air pollution from all sources
177 and the establishment of the maximum quantity of air contaminants that may be emitted by
178 any air contaminant source;
179 (b) establishing air quality standards;
180 (c) requiring persons engaged in operations which result in air pollution to:
181 (i) install, maintain, and use emission monitoring devices, as the board finds
182 necessary;
183 (ii) file periodic reports containing information relating to the rate, period of emission,
184 and composition of the air contaminant; and
185 (iii) provide access to records relating to emissions which cause or contribute to air
186 pollution;
187 (d) implementing 15 U.S.C.A. 2601 et seq. Toxic Substances Control Act, Subchapter
188 II - Asbestos Hazard Emergency Response, and reviewing and approving asbestos
189 management plans submitted by local education agencies under that act;
190 (e) establishing a requirement for a diesel emission opacity inspection and
191 maintenance program for diesel-powered motor vehicles;
192 (f) implementing an operating permit program as required by and in conformity with
193 Titles IV and V of the federal Clean Air Act Amendments of 1990;
194 (g) establishing requirements for county emissions inspection and maintenance
195 programs after obtaining agreement from the counties that would be affected by the
196 requirements;
197 (h) with the approval of the governor, implementing in air quality nonattainment areas

198 employer-based trip reduction programs applicable to businesses having more than 100
199 employees at a single location and applicable to federal, state, and local governments to the
200 extent necessary to attain and maintain ambient air quality standards consistent with the state
201 implementation plan and federal requirements under the standards set forth in Subsection (2);
202 and
203 (i) implementing lead-based paint remediation training, certification, and performance
204 requirements in accordance with 15 U.S.C.A. 2601 et seq., Toxic Substances Control Act,
205 Subchapter IV -- Lead Exposure Reduction, Sections 402 and 406.
206 (2) When implementing Subsection (1)(h) the board shall take into consideration:
207 (a) the impact of the business on overall air quality; and
208 (b) the need of the business to use automobiles in order to carry out its business
209 purposes.
210 (3) The board may:
211 (a) (i) hold [hearings] a hearing that is not an adjudicative proceeding relating to any
212 aspect of or matter in the administration of this chapter and compel the attendance of
213 witnesses and the production of documents and other evidence, administer oaths and take
214 testimony, and receive evidence as necessary;
215 (ii) receive a proposed dispositive action from an administrative law judge as provided
216 by Section 19-1-301 ; and
217 (iii) (A) approve, approve with modifications, or disapprove a proposed dispositive
218 action; or
219 (B) return the proposed dispositive action to the administrative law judge for further
220 action as directed;
221 (b) issue orders necessary to enforce the provisions of this chapter, enforce the orders
222 by appropriate administrative and judicial proceedings, and institute judicial proceedings to
223 secure compliance with this chapter;
224 (c) settle or compromise any civil action initiated to compel compliance with this
225 chapter and the rules made under this chapter;

226 (d) secure necessary scientific, technical, administrative, and operational services,
227 including laboratory facilities, by contract or otherwise;
228 (e) prepare and develop a comprehensive plan or plans for the prevention, abatement,
229 and control of air pollution in this state;
230 (f) encourage voluntary cooperation by persons and affected groups to achieve the
231 purposes of this chapter;
232 (g) encourage local units of government to handle air pollution within their respective
233 jurisdictions on a cooperative basis and provide technical and consultative assistance to them;
234 (h) encourage and conduct studies, investigations, and research relating to air
235 contamination and air pollution and their causes, effects, prevention, abatement, and control;
236 (i) determine by means of field studies and sampling the degree of air contamination
237 and air pollution in all parts of the state;
238 (j) monitor the effects of the emission of air contaminants from motor vehicles on the
239 quality of the outdoor atmosphere in all parts of this state and take appropriate action with
240 respect to them;
241 (k) collect and disseminate information and conduct educational and training
242 programs relating to air contamination and air pollution;
243 (l) advise, consult, contract, and cooperate with other agencies of the state, local
244 governments, industries, other states, interstate or interlocal agencies, the federal government,
245 and with interested persons or groups;
246 (m) consult, upon request, with any person proposing to construct, install, or otherwise
247 acquire an air contaminant source in the state concerning the efficacy of any proposed control
248 device, or system for this source, or the air pollution problem which may be related to the
249 source, device, or system, but a consultation does not relieve any person from compliance with
250 this chapter, the rules adopted under it, or any other provision of law;
251 (n) accept, receive, and administer grants or other funds or gifts from public and
252 private agencies, including the federal government, for the purpose of carrying out any of the
253 functions of this chapter;

254 (o) require the owner and operator of each new source which directly emits or has the
255 potential to emit 100 tons per year or more of any air contaminant or the owner or operator of
256 each existing source which by modification will increase emissions or have the potential of
257 increasing emissions by 100 tons per year or more of any air contaminant, to pay a fee
258 sufficient to cover the reasonable costs of:
259 (i) reviewing and acting upon the notice required under Section 19-2-108 ; and
260 (ii) implementing and enforcing requirements placed on the sources by any approval
261 order issued pursuant to notice, not including any court costs associated with any enforcement
262 action;
263 (p) assess and collect noncompliance penalties as required in Section 120 of the
264 federal Clean Air Act, 42 U.S.C. Sec. 7420;
265 (q) meet the requirements of federal air pollution laws;
266 (r) establish work practice, certification, and clearance air sampling requirements for
267 persons who:
268 (i) contract for hire to conduct demolition, renovation, salvage, encapsulation work
269 involving friable asbestos-containing materials, or asbestos inspections;
270 (ii) conduct work described in Subsection (3)(r)(i) in areas to which the general public
271 has unrestrained access or in school buildings that are subject to the federal Asbestos Hazard
272 Emergency Response Act of 1986;
273 (iii) conduct asbestos inspections in facilities subject to 15 U.S.C.A. 2601 et seq.,
274 Toxic Substances Control Act, Subchapter II - Asbestos Hazard Emergency Response; or
275 (iv) conduct lead paint inspections in facilities subject to 15 U.S.C.A. 2601 et seq.,
276 Toxic Substances Control Act, Subchapter IV -- Lead Exposure Reduction;
277 (s) establish certification requirements for persons required under 15 U.S.C.A. 2601 et
278 seq., Toxic Substances Control Act, Subchapter II - Asbestos Hazard Emergency Response, to
279 be accredited as inspectors, management planners, abatement project designers, asbestos
280 abatement contractors and supervisors, or asbestos abatement workers;
281 (t) establish certification requirements for asbestos project monitors, which shall

282 provide for experience-based certification of persons who, prior to establishment of the
283 certification requirements, had received relevant asbestos training, as defined by rule, and had
284 acquired at least 1,000 hours of experience as project monitors;
285 (u) establish certification procedures and requirements for certification of the
286 conversion of a motor vehicle to a clean-fuel vehicle, certifying the vehicle is eligible for the
287 tax credit granted in Section 59-7-605 or 59-10-1009 ;
288 (v) establish a program to certify private sector air quality permitting professionals
289 (AQPP), as described in Section 19-2-109.5 ;
290 (w) establish certification requirements for persons required under 15 U.S.C.A. 2601
291 et seq., Toxic Control Act, Subchapter IV -- Lead Exposure Reduction, to be accredited as
292 inspectors, risk assessors, supervisors, project designers, or abatement workers; and
293 (x) assist the State Board of Education in adopting school bus idling reduction
294 standards and implementing an idling reduction program in accordance with Section
295 41-6a-1308 .
296 (4) Any rules adopted under this chapter shall be consistent with provisions of federal
297 laws, if any, relating to control of motor vehicles or motor vehicle emissions.
298 (5) Nothing in this chapter authorizes the board to require installation of or payment
299 for any monitoring equipment by the owner or operator of a source if the owner or operator has
300 installed or is operating monitoring equipment that is equivalent to equipment which the board
301 would require under this section.
302 Section 4. Section 19-2-108 is amended to read:
303 19-2-108. Notice of construction or modification of installations required --
304 Authority of executive secretary to prohibit construction -- Hearings -- Limitations on
305 authority of board -- Inspections authorized.
306 (1) The board shall require that notice be given to the executive secretary by any
307 person planning to construct a new installation which will or might reasonably be expected to
308 be a source or indirect source of air pollution or to make modifications to an existing
309 installation which will or might reasonably be expected to increase the amount of or change

310 the character or effect of air contaminants discharged, so that the installation may be expected
311 to be a source or indirect source of air pollution, or by any person planning to install an air
312 cleaning device or other equipment intended to control emission of air contaminants.
313 (2) (a) (i) The executive secretary may require, as a condition precedent to the
314 construction, modification, installation, or establishment of the air contaminant source or
315 indirect source, the submission of plans, specifications, and other information as he finds
316 necessary to determine whether the proposed construction, modification, installation, or
317 establishment will be in accord with applicable rules in force under this chapter.
318 (ii) Plan approval for an indirect source may be delegated by the executive secretary to
319 a local authority when requested and upon assurance that the local authority has and will
320 maintain sufficient expertise to insure that the planned installation will meet the requirements
321 established by law.
322 (b) If within 90 days after the receipt of plans, specifications, or other information
323 required under this subsection, the executive secretary determines that the proposed
324 construction, installation, or establishment or any part of it will not be in accord with the
325 requirements of this chapter or applicable rules or that further time, not exceeding three
326 extensions of 30 days each, is required by the board to adequately review the plans,
327 specifications, or other information, he shall issue an order prohibiting the construction,
328 installation, or establishment of the air contaminant source or sources in whole or in part.
329 (3) In addition to any other remedies, any person aggrieved by the issuance of an order
330 either granting or denying a request for the construction of a new installation, and prior to
331 invoking any such other remedies shall, upon request, in accordance with the rules of the
332 board, be entitled to a hearing conducted by an administrative law judge as provided by
333 Section 19-1-301 . Following the hearing[, the] and the receipt by the board of the proposed
334 dispositive action from the administrative law judge, the board may affirm, modify, or
335 withdraw the permit [may be affirmed, modified, or withdrawn].
336 (4) Any features, machines, and devices constituting parts of or called for by plans,
337 specifications, or other information submitted under Subsection (1) shall be maintained in

338 good working order.
339 (5) This section does not authorize the board to require the use of machinery, devices,
340 or equipment from a particular supplier or produced by a particular manufacturer if the
341 required performance standards may be met by machinery, devices, or equipment otherwise
342 available.
343 (6) (a) Any authorized officer, employee, or representative of the board may enter and
344 inspect any property, premise, or place on or at which an air contaminant source is located or
345 is being constructed, modified, installed, or established at any reasonable time for the purpose
346 of ascertaining the state of compliance with this chapter and the rules adopted under it.
347 (b) (i) A person may not refuse entry or access to any authorized representative of the
348 board who requests entry for purposes of inspection and who presents appropriate credentials.
349 (ii) A person may not obstruct, hamper, or interfere with any inspection.
350 (c) If requested, the owner or operator of the premises shall receive a report setting
351 forth all facts found which relate to compliance status.
352 Section 5. Section 19-2-109.1 is amended to read:
353 19-2-109.1. Operating permit required -- Emissions fee -- Implementation.
354 (1) As used in this section and Sections 19-2-109.2 and 19-2-109.3 :
355 (a) "EPA" means the federal Environmental Protection Agency.
356 (b) "1990 Clean Air Act" means the federal Clean Air Act as amended in 1990.
357 (c) "Operating permit" means a permit issued by the executive secretary to sources of
358 air pollution that meet the requirements of Titles IV and V of the 1990 Clean Air Act.
359 (d) "Program" means the air pollution operating permit program established under this
360 section to comply with Title V of the 1990 Clean Air Act.
361 (e) "Regulated pollutant" has the same meaning as defined in Title V of the 1990
362 Clean Air Act and implementing federal regulations.
363 (2) (a) A person may not operate any source of air pollution required to have a permit
364 under Title V of the 1990 Clean Air Act without having obtained an operating permit from the
365 executive secretary under procedures the board establishes by rule.

366 (b) A person is not required to submit an operating permit application until the
367 governor has submitted an operating permit program to the EPA.
368 (c) Any operating permit issued under this section may not become effective until the
369 day after the EPA issues approval of the permit program or November 15, 1995, whichever
370 occurs first.
371 (3) (a) Operating permits issued under this section shall be for a period of five years
372 unless the board makes a written finding, after public comment and hearing, and based on
373 substantial evidence in the record, that an operating permit term of less than five years is
374 necessary to protect the public health and the environment of the state.
375 (b) The executive secretary may issue, modify, or renew an operating permit only after
376 providing public notice, an opportunity for public comment, and an opportunity for a public
377 hearing.
378 (c) The executive secretary shall, in conformity with the 1990 Clean Air Act and
379 implementing federal regulations, revise the conditions of issued operating permits to
380 incorporate applicable federal regulations in conformity with Section 502(b)(9) of the 1990
381 Clean Air Act, if the remaining period of the permit is three or more years.
382 (d) The executive secretary may terminate, modify, revoke, or reissue an operating
383 permit for cause.
384 (4) (a) The board shall establish a proposed annual emissions fee that conforms with
385 Title V of the 1990 Clean Air Act for each ton of regulated pollutant, applicable to all sources
386 required to obtain a permit. The emissions fee established under this section is in addition to
387 fees assessed under Section 19-2-108 for issuance of an approval order.
388 (b) In establishing the fee the board shall comply with the provisions of Section
389 63J-1-303 that require a public hearing and require the established fee to be submitted to the
390 Legislature for its approval as part of the department's annual appropriations request.
391 (c) The fee shall cover all reasonable direct and indirect costs required to develop and
392 administer the program and the small business assistance program established under Section
393 19-2-109.2 . The board shall prepare an annual report of the emissions fees collected and the

394 costs covered by those fees under this Subsection (4).
395 (d) The fee shall be established uniformly for all sources required to obtain an
396 operating permit under the program and for all regulated pollutants.
397 (e) The fee may not be assessed for emissions of any regulated pollutant if the
398 emissions are already accounted for within the emissions of another regulated pollutant.
399 (f) An emissions fee may not be assessed for any amount of a regulated pollutant
400 emitted by any source in excess of 4,000 tons per year of that regulated pollutant.
401 (5) Emissions fees for the period:
402 (a) of July 1, 1992, through June 30, 1993, shall be based on the most recent
403 emissions inventory prepared by the executive secretary; and
404 (b) on and after July 1, 1993, but prior to issuance of an operating permit, shall be
405 based on the most recent emissions inventory, unless a source elects prior to July 1, 1992, to
406 base the fee on allowable emissions, if applicable for a regulated pollutant.
407 (6) After an operating permit is issued the emissions fee shall be based on actual
408 emissions for a regulated pollutant unless a source elects, prior to the issuance or renewal of a
409 permit, to base the fee during the period of the permit on allowable emissions for that
410 regulated pollutant.
411 (7) If the owner or operator of a source subject to this section fails to timely pay an
412 annual emissions fee, the executive secretary may:
413 (a) impose a penalty of not more than 50% of the fee, in addition to the fee, plus
414 interest on the fee computed at 12% annually; or
415 (b) revoke the operating permit.
416 (8) The owner or operator of a source subject to this section may contest an emissions
417 fee assessment or associated penalty in an adjudicative hearing under the Title 63G, Chapter 4,
418 Administrative Procedures Act, and Section 19-1-301 , as provided in this Subsection (8).
419 (a) The owner or operator must pay the fee under protest prior to being entitled to a
420 hearing. Payment of an emissions fee or penalty under protest is not a waiver of the right to
421 contest the fee or penalty under this section.

422 (b) A request for a hearing under this subsection shall be made after payment of the
423 emissions fee and within six months after the emissions fee was due.
424 (9) To reinstate an operating permit revoked under Subsection (7) the owner or
425 operator shall pay all outstanding emissions fees, a penalty of not more than 50% of all
426 outstanding fees, and interest on the outstanding emissions fees computed at 12% annually.
427 (10) All emissions fees and penalties collected by the department under this section
428 shall be deposited in the General Fund as the Air Pollution Operating Permit Program
429 dedicated credit to be used solely to pay for the reasonable direct and indirect costs incurred
430 by the department in developing and administering the program and the small business
431 assistance program under Section 19-2-109.2 .
432 (11) Failure of the executive secretary to act on any operating permit application or
433 renewal is a final administrative action only for the purpose of obtaining judicial review by
434 any of the following persons to require the executive secretary to take action on the permit or
435 its renewal without additional delay:
436 (a) the applicant;
437 (b) any person who participated in the public comment process; or
438 (c) any other person who could obtain judicial review of that action under applicable
439 law.
440 Section 6. Section 19-2-109.5 is amended to read:
441 19-2-109.5. Private sector air quality permitting professionals certification
442 program.
443 (1) As used in this section, "AQPP" means an air quality permitting professional.
444 (2) The board may establish a program to certify private sector AQPPs, including
445 consultants and employees of companies that may seek air quality permits from the division.
446 Any program established under this section shall include:
447 (a) a training program established and operated by the department, which describes
448 and explains the state law and rules regarding the air quality permit application and approval
449 procedure under this chapter;

450 (b) the requirement to pass an exam to measure qualifications of AQPP applicants;
451 (c) an option for certification of an AQPP by passing the exam without undergoing
452 any training required under the program;
453 (d) an application process, including a fee established under Section 63J-1-303 that
454 covers the costs of the training, testing, and application process and the department's
455 maintenance of a list of certified AQPPs;
456 (e) certification of qualified AQPP applicants;
457 (f) maintenance by the department of a current list of certified AQPPs, which is
458 available to the public;
459 (g) procedures for the expedited review by the department of air quality permit
460 applications submitted by certified AQPPs; and
461 (h) professional standards for AQPPs.
462 (3) The board may not require AQPP certification as a condition of preparing or
463 submitting a notice of intent or operating permit application under this chapter.
464 (4) Any program under this section shall provide for revocation of any certification
465 issued under this section if the department determines, through an administrative hearing
466 conducted under Title 63G, Chapter 4, Administrative Procedures Act, and Section 19-1-301 ,
467 that the AQPP:
468 (a) knowingly or negligently submitted false information or data as part of an air
469 quality permit application;
470 (b) prepared more than three air quality permit applications in one calendar year in a
471 manner that each did not substantially comply with department application requirements; or
472 (c) prepared any air quality permit application in violation of the professional
473 standards defined by department rule.
474 Section 7. Section 19-2-110 is amended to read:
475 19-2-110. Violations -- Notice to violator -- Corrective action orders --
476 Conference, conciliation, and persuasion by board -- Hearings.
477 (1) (a) Whenever the executive secretary has reason to believe that a violation of any

478 provision of this chapter or any rule issued under it has occurred, he may serve written notice
479 of the violation upon the alleged violator. The notice shall specify the provision of this
480 chapter or rule alleged to be violated, the facts alleged to constitute the violation, and may
481 include an order that necessary corrective action be taken within a reasonable time.
482 (b) In lieu of beginning an adjudicative proceeding under Subsection (1)(a), the board
483 may initiate an action pursuant to Section 19-2-115 .
484 (2) Nothing in this chapter prevents the board from making efforts to obtain voluntary
485 compliance through warning, conference, conciliation, persuasion, or other appropriate means.
486 (3) Hearings may be held before[:] an administrative law judge as provided by Section
487 19-1-301 .
488 [(a) the board;]
489 [(b) a hearing examiner of the board; or]
490 [(c) a board member especially appointed by the board to hold the hearing.]
491 Section 8. Section 19-2-112 is amended to read:
492 19-2-112. Generalized condition of air pollution creating emergency -- Sources
493 causing imminent danger to health -- Powers of executive director -- Declaration of
494 emergency.
495 (1) (a) Title 63G, Chapter 4, Administrative Procedures Act, and any other provision
496 of law to the contrary notwithstanding, if the executive director finds that a generalized
497 condition of air pollution exists and that it creates an emergency requiring immediate action to
498 protect human health or safety, the executive director, with the concurrence of the governor,
499 shall order persons causing or contributing to the air pollution to reduce or discontinue
500 immediately the emission of air contaminants.
501 (b) The order shall fix a place and time, not later than 24 hours after its issuance, for a
502 hearing to be held before the governor.
503 (c) Not more than 24 hours after the commencement of this hearing, and without
504 adjournment of it, the governor shall affirm, modify, or set aside the order of the executive
505 director.

506 (2) (a) In the absence of a generalized condition of air pollution referred to in
507 Subsection (1), but if the executive director finds that emissions from the operation of one or
508 more air contaminant sources is causing imminent danger to human health or safety, the
509 executive director may commence adjudicative proceedings under Section 63G-4-502 .
510 (b) Notwithstanding Section 19-1-301 , the executive director may conduct the
511 emergency adjudicative proceeding in place of an administrative law judge.
512 (3) Nothing in this section limits any power that the governor or any other officer has
513 to declare an emergency and act on the basis of that declaration.
514 Section 9. Section 19-3-103.5 is amended to read:
515 19-3-103.5. Board authority and duties.
516 (1) The board may:
517 (a) require submittal of specifications or other information relating to licensing
518 applications for radioactive materials or registration of radiation sources for review, approval,
519 disapproval, or termination;
520 (b) issue orders necessary to enforce the provisions of this part, enforce the orders by
521 appropriate administrative and judicial proceedings, and institute judicial proceedings to
522 secure compliance with this part;
523 (c) (i) hold [hearings] a hearing that is not an adjudicative proceeding and compel the
524 attendance of witnesses, the production of documents, and other evidence, administer oaths
525 and take testimony, and receive evidence it finds proper, or appoint hearing officers to conduct
526 a hearing that is not an adjudicative proceeding and authorize them to exercise the powers
527 under this Subsection (1);
528 (ii) receive a proposed dispositive action from an administrative law judge as provided
529 by Section 19-1-301 ; and
530 (iii) (A) approve, approve with modifications, or disapprove a proposed dispositive
531 action; or
532 (B) return the proposed dispositive action to the administrative law judge for further
533 action as directed;

534 (d) settle or compromise any administrative or civil action initiated to compel
535 compliance with this part or any rules adopted under this part;
536 (e) advise, consult, cooperate with, and provide technical assistance to other agencies
537 of the state and federal government, other states, interstate agencies, and affected groups,
538 political subdivisions, industries, and other persons in carrying out the provisions of this part;
539 (f) promote the planning and application of pollution prevention and radioactive waste
540 minimization measures to prevent the unnecessary waste and depletion of natural resources;
541 (g) cooperate with any persons in studies, research, or demonstration projects
542 regarding radioactive waste management or control of radiation sources;
543 (h) accept, receive, and administer grants or other funds or gifts from public and
544 private agencies, including the federal government, for the purpose of carrying out any of the
545 functions of this part;
546 (i) exercise all incidental powers necessary to carry out the purposes of this part;
547 (j) submit an application to the U.S. Food and Drug Administration for approval as an
548 accrediting body in accordance with 42 U.S.C. 263b, Mammography Quality Standards Act of
549 1992;
550 (k) accredit mammography facilities, pursuant to approval as an accrediting body from
551 the U.S. Food and Drug Administration, in accordance with 42 U.S.C. 263b, Mammography
552 Quality Standards Act of 1992; and
553 (l) review the qualifications of and issue certificates of approval to individuals who
554 survey mammography equipment and oversee quality assurance practices at mammography
555 facilities.
556 (2) The board shall:
557 (a) [hear appeals] receive a proposed dispositive action from an administrative law
558 judge on an appeal of final decisions made by the executive secretary [or appoint a hearing
559 officer to hear the appeal and make recommendations to the board] as provided by Section
560 19-1-301 ;
561 (b) prepare a radioactive waste management plan in compliance with Section

562 19-3-107 as soon as practicable; and
563 (c) impound radioactive material as authorized in Section 19-3-111 .
564 (3) Representatives of the board upon presentation of appropriate credentials may
565 enter at reasonable times upon the premises of public and private properties subject to
566 regulation under this part to perform inspections to insure compliance with this part and rules
567 made by the board.
568 Section 10. Section 19-4-104 is amended to read:
569 19-4-104. Powers of board.
570 (1) The board may:
571 (a) make rules in accordance with Title 63G, Chapter 3, Utah Administrative
572 Rulemaking Act:
573 (i) establishing standards that prescribe the maximum contaminant levels in any
574 public water system and provide for monitoring, record-keeping, and reporting of water
575 quality related matters;
576 (ii) governing design, construction, operation, and maintenance of public water
577 systems;
578 (iii) granting variances and exemptions to the requirements established under this
579 chapter that are not less stringent than those allowed under federal law;
580 (iv) protecting watersheds and water sources used for public water systems; and
581 (v) governing capacity development in compliance with Section 1420 of the federal
582 Safe Drinking Water Act, 42 U.S.C.A. 300f et seq.;
583 (b) issue orders necessary to enforce the provisions of this chapter, enforce the orders
584 by appropriate administrative and judicial proceedings, and institute judicial proceedings to
585 secure compliance with this chapter;
586 (c) (i) hold [hearings] a hearing that is not an adjudicative proceeding relating to the
587 administration of this chapter and compel the attendance of witnesses, the production of
588 documents and other evidence, administer oaths and take testimony, and receive evidence as
589 necessary; [or]

590 (ii) appoint hearing officers to conduct a hearing that is not an adjudicative proceeding
591 and authorize them to exercise powers under [this] Subsection (1)(c)(i);
592 (iii) receive a proposed dispositive action from an administrative law judge as
593 provided by Section 19-1-301 ; and
594 (iv) (A) approve, approve with modifications, or disapprove a proposed dispositive
595 action; or
596 (B) return the proposed dispositive action to the administrative law judge for further
597 action as directed;
598 (d) require the submission to the executive secretary of plans and specifications for
599 construction of, substantial addition to, or alteration of public water systems for review and
600 approval by the board before that action begins and require any modifications or impose any
601 conditions that may be necessary to carry out the purposes of this chapter;
602 (e) advise, consult, cooperate with, provide technical assistance to, and enter into
603 agreements, contracts, or cooperative arrangements with state, federal, or interstate agencies,
604 municipalities, local health departments, educational institutions, or others necessary to carry
605 out the purposes of this chapter and to support the laws, ordinances, rules, and regulations of
606 local jurisdictions;
607 (f) request and accept financial assistance from other public agencies, private entities,
608 and the federal government to carry out the purposes of this chapter;
609 (g) develop and implement an emergency plan to protect the public when declining
610 drinking water quality or quantity creates a serious health risk and issue emergency orders if a
611 health risk is imminent;
612 (h) authorize employees or agents of the department, after reasonable notice and
613 presentation of credentials, to enter any part of a public water system at reasonable times to
614 inspect the facilities and water quality records required by board rules, conduct sanitary
615 surveys, take samples, and investigate the standard of operation and service delivered by
616 public water systems;
617 (i) meet the requirements of federal law related or pertaining to drinking water; and

618 (j) exercise all other incidental powers necessary to carry out the purpose of this
619 chapter.
620 (2) (a) The board may adopt and enforce standards and establish fees for certification
621 of operators of any public water system.
622 (b) The board may not require certification of operators for a water system serving a
623 population of 800 or less except:
624 (i) to the extent required for compliance with Section 1419 of the federal Safe
625 Drinking Water Act, 42 U.S.C.A. 300f et seq.; and
626 (ii) for a system that is required to treat its drinking water.
627 (c) The certification program shall be funded from certification and renewal fees.
628 (3) Routine extensions or repairs of existing public water systems that comply with the
629 rules and do not alter the system's ability to provide an adequate supply of water are exempt
630 from the provisions of Subsection (1)(d).
631 (4) (a) The board may adopt and enforce standards and establish fees for certification
632 of persons engaged in administering cross connection control programs or backflow
633 prevention assembly training, repair, and maintenance testing.
634 (b) The certification program shall be funded from certification and renewal fees.
635 Section 11. Section 19-5-111 is amended to read:
636 19-5-111. Notice of violations -- Hearings.
637 (1) Whenever the board determines there are reasonable grounds to believe that there
638 has been a violation of this chapter or any order of the board, it may give written notice to the
639 alleged violator specifying the provisions that have been violated and the facts that constitute
640 the violation.
641 (2) The notice shall require that the matters complained of be corrected.
642 (3) The notice may order the alleged violator to appear before [the board] an
643 administrative law judge as provided by Section 19-1-301 at a time and place specified in the
644 notice and answer the charges.
645 Section 12. Section 19-5-112 is amended to read:

646 19-5-112. Hearings conducted by an administrative law judge -- Decisions on
647 denial or revocation of permit conducted by executive director.
648 (1) (a) [The] Except as provided by Subsection (2), an administrative law judge shall
649 conduct hearings authorized by Section 19-5-111 [, except hearings for a person who is denied
650 a permit or whose permit has been revoked, may be conducted by the board at a regular or
651 special meeting, or by an examining officer designated by the board] in accordance with
652 Section 19-1-301 .
653 (b) All decisions shall be rendered by a majority of the board.
654 [(2) (a) A hearing for a person who has been denied a permit, or who has had a permit
655 revoked, shall be conducted before the executive director or his designee.]
656 (2) (a) An administrative law judge shall conduct, on the executive director's behalf, a
657 hearing regarding an appeal of a permit decision for which the state has assumed primacy
658 under the Federal Water Pollution Control Act, 33 U.S.C. Sec. 1251 et seq.
659 (b) Notwithstanding Subsection 19-1-301 (6), the administrative law judge shall
660 submit to the executive director a proposed dispositive action.
661 (c) The executive director may:
662 (i) approve, approve with modifications, or disapprove a proposed dispositive action
663 submitted to the executive director under Subsection (2)(b); or
664 (ii) return the proposed dispositive action to the administrative law judge for further
665 action as directed.
666 [(b)] (d) The decision of the executive director is final and binding on all parties as a
667 final determination of the board unless stayed or overturned on appeal.
668 Section 13. Section 19-6-104 is amended to read:
669 19-6-104. Powers of board -- Creation of statewide solid waste management
670 plan.
671 (1) The board shall:
672 (a) survey solid and hazardous waste generation and management practices within this
673 state and, after public hearing and after providing opportunities for comment by local

674 governmental entities, industry, and other interested persons, prepare and revise, as necessary,
675 a waste management plan for the state;
676 (b) carry out inspections pursuant to Section 19-6-109 ;
677 (c) (i) hold [hearings] a hearing that is not an adjudicative proceeding and compel the
678 attendance of witnesses, the production of documents, and other evidence, administer oaths
679 and take testimony, and receive evidence it finds proper, or appoint hearing officers to conduct
680 a hearing that is not an adjudicative proceeding who shall be delegated these powers;
681 (ii) receive a proposed dispositive action from an administrative law judge as provided
682 by Section 19-1-301 ; and
683 (iii) (A) approve, approve with modifications, or disapprove a proposed dispositive
684 action; or
685 (B) return the proposed dispositive action to the administrative law judge for further
686 action as directed;
687 (d) issue orders necessary to effectuate the provisions of this part and implementing
688 rules and enforce them by administrative and judicial proceedings, and cause the initiation of
689 judicial proceedings to secure compliance with this part;
690 (e) settle or compromise any administrative or civil action initiated to compel
691 compliance with this part and any rules adopted under this part;
692 (f) require submittal of specifications or other information relating to hazardous waste
693 plans for review, and approve, disapprove, revoke, or review the plans;
694 (g) advise, consult, cooperate with, and provide technical assistance to other agencies
695 of the state and federal government, other states, interstate agencies, and affected groups,
696 political subdivisions, industries, and other persons in carrying out the purposes of this part;
697 (h) promote the planning and application of resource recovery systems to prevent the
698 unnecessary waste and depletion of natural resources;
699 (i) meet the requirements of federal law related to solid and hazardous wastes to insure
700 that the solid and hazardous wastes program provided for in this part is qualified to assume
701 primacy from the federal government in control over solid and hazardous waste;

702 (j) (i) require any facility, including those listed in Subsection (1)(j)(ii), that is intended
703 for disposing of nonhazardous solid waste or wastes listed in Subsection (1)(j)(ii)(B) to submit
704 plans, specifications, and other information required by the board to the board prior to
705 construction, modification, installation, or establishment of a facility to allow the board to
706 determine whether the proposed construction, modification, installation, or establishment of
707 the facility will be in accordance with rules made under this part;
708 (ii) facilities referred to in Subsection (1)(j)(i) include:
709 (A) any incinerator that is intended for disposing of nonhazardous solid waste; and
710 (B) except for facilities that receive the following wastes solely for the purpose of
711 recycling, reuse, or reprocessing, any commercial facility that accepts for treatment or
712 disposal, and with the intent to make a profit: fly ash waste, bottom ash waste, slag waste, or
713 flue gas emission control waste generated primarily from the combustion of coal or other fossil
714 fuels; wastes from the extraction, beneficiation, and processing of ores and minerals; or
715 cement kiln dust wastes; and
716 (k) exercise all other incidental powers necessary to carry out the purposes of this part.
717 (2) (a) The board shall establish a comprehensive statewide solid waste management
718 plan by January 1, 1994.
719 (b) The plan shall:
720 (i) incorporate the solid waste management plans submitted by the counties;
721 (ii) provide an estimate of solid waste capacity needed in the state for the next 20
722 years;
723 (iii) assess the state's ability to minimize waste and recycle;
724 (iv) evaluate solid waste treatment, disposal, and storage options, as well as solid
725 waste needs and existing capacity;
726 (v) evaluate facility siting, design, and operation;
727 (vi) review funding alternatives for solid waste management; and
728 (vii) address other solid waste management concerns that the board finds appropriate
729 for the preservation of the public health and the environment.

730 (c) The board shall consider the economic viability of solid waste management
731 strategies prior to incorporating them into the plan and shall consider the needs of population
732 centers.
733 (d) The board shall review and modify the comprehensive statewide solid waste
734 management plan no less frequently than every five years.
735 (3) (a) The board shall determine the type of solid waste generated in the state and
736 tonnage of solid waste disposed of in the state in developing the comprehensive statewide
737 solid waste management plan.
738 (b) The board shall review and modify the inventory no less frequently than once every
739 five years.
740 (4) Subject to the limitations contained in Subsection 19-6-102 (18)(b), the board shall
741 establish siting criteria for nonhazardous solid waste disposal facilities, including incinerators.
742 Section 14. Section 19-6-704 is amended to read:
743 19-6-704. Powers and duties of the board.
744 (1) The board shall make rules under Title 63G, Chapter 3, Utah Administrative
745 Rulemaking Act, as necessary to administer this part and to comply with 40 CFR 279,
746 Standards for the Management of Used Oil, to ensure the state's primacy to manage used oil
747 under 40 CFR 279. For these purposes the board shall:
748 [(a) conduct adjudicative hearings as required in this part under Title 63G, Chapter 4,
749 Administrative Procedures Act;]
750 (a) (i) receive a proposed dispositive action from an administrative law judge as
751 provided by Section 19-1-301 ; and
752 (ii) (A) approve, approve with modifications, or disapprove a proposed dispositive
753 action; or
754 (B) return the proposed dispositive action to the administrative law judge for further
755 action as directed;
756 (b) establish by rule conditions and procedures for registration and revocation of
757 registration as a used oil collection center, used oil aggregation point, or DIYer used oil

758 collection center;
759 (c) provide by rule that used oil aggregation points that do not accept DIYer used oil
760 are required to comply with used oil collection standards under this part, but are not required
761 to be permitted or registered;
762 (d) establish by rule conditions and fees required to obtain permits and operate as used
763 oil transporters, used oil transfer facilities, used oil processors and rerefiners, and used oil fuel
764 marketers;
765 (e) establish by rule the amount of liability insurance or other financial responsibility
766 the applicant shall have to qualify for a permit under Subsection (1)(d);
767 (f) establish by rule the form and amount of reclamation surety required for
768 reclamation of any site or facility required to be permitted under this part;
769 (g) after public notice and opportunity for a public hearing, hear and act on permit
770 issues appealed under Subsection 19-6-712 (2);
771 (h) establish by rule standards for tracking, analysis, and recordkeeping regarding used
772 oil subject to regulation under this part, including:
773 (i) manifests for handling and transferring used oil;
774 (ii) analyses necessary to determine if used oil is on-specification or off-specification;
775 (iii) records documenting date, quantities, and character of used oil transported,
776 processed, transferred, or sold;
777 (iv) records documenting persons between whom transactions under this subsection
778 occurred; and
779 (v) exemption of DIYer used oil collection centers from this subsection except as
780 necessary to verify volumes of used oil picked up by a permitted transporter and the
781 transporter's name and federal EPA identification number;
782 (i) authorize inspections and audits of facilities, centers, and operations subject to
783 regulation under this part;
784 (j) establish by rule standards for:
785 (i) used oil generators;

786 (ii) used oil collection centers;
787 (iii) DIYer used oil collection centers;
788 (iv) aggregation points;
789 (v) curbside used oil collection programs;
790 (vi) used oil transporters;
791 (vii) used oil transfer facilities;
792 (viii) used oil burners;
793 (ix) used oil processors and rerefiners; and
794 (x) used oil marketers;
795 (k) establish by rule standards for determining on-specification and off-specification
796 used oil and specified mixtures of used oil, subject to Section 19-6-707 regarding rebuttable
797 presumptions;
798 (l) establish by rule standards for closure, remediation, and response to releases
799 involving used oil; and
800 (m) establish a public education program to promote used oil recycling and use of
801 used oil collection centers.
802 (2) The board may:
803 (a) (i) hold [hearings] a hearing that is not an adjudicative proceeding relating to any
804 aspect of or matter in the administration of this part and compel the attendance of witnesses
805 and the production of documents and other evidence, administer oaths and take testimony, and
806 receive evidence as necessary;
807 (ii) receive a proposed dispositive action from an administrative law judge as provided
808 by Section 19-1-301 ; and
809 (iii) (A) approve, approve with modifications, or disapprove a proposed dispositive
810 action; or
811 (B) return the proposed dispositive action to the administrative law judge for further
812 action as directed;
813 (b) require retention and submission of records required under this part; and

814 (c) require audits of records and recordkeeping procedures required under this part and
815 rules made under this part, except that audits of records regarding the fee imposed and
816 collected by the commission under Sections 19-6-714 and 19-6-715 are the responsibility of
817 the commission under Section 19-6-716 .
818 Section 15. Repealer.
819 This bill repeals:
820 Section 19-2-111, Review of orders of hearing examiner -- Procedure.