S.B. 70

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, and
51 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 by
58 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 to
65 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 in
104 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 a
122 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; or
139 (c) (i) appoint an administrative law judge as an employee of the department; and
140 (ii) assign the administrative law judge responsibilities in addition to conducting an
141 adjudicative proceeding.
142 (6) (a) An administrative law judge shall:
143 (i) conduct an adjudicative proceeding;
144 (ii) take any action that is not a dispositive action; and
145 (iii) submit to the board a proposed dispositive action, including:
146 (A) written findings of fact;
147 (B) written conclusions of law; and
148 (C) a recommended order.
149 (b) A board may:
150 (i) approve, approve with modifications, or disapprove a proposed dispositive action
151 submitted to the board under Subsection (6)(a); or

152 (ii) return the proposed dispositive action to the administrative law judge for further
153 action as directed.
154 (7) To conduct an adjudicative proceeding, an administrative law judge may:
155 (a) compel:
156 (i) the attendance of a witness; and
157 (ii) the production of a document or other evidence;
158 (b) administer an oath;
159 (c) take testimony; and
160 (d) receive evidence as necessary.
161 (8) A party may appear before an administrative law judge in person, through an agent
162 or employee, or as provided by a board rule.
163 (9) (a) An administrative law judge or board member may not communicate with a
164 party to an adjudicative proceeding regarding the merits of the adjudicative proceeding unless
165 notice and an opportunity to be heard are afforded to all parties.
166 (b) An administrative law judge or board member who receives an ex parte
167 communication shall place the communication into the public record of the proceedings and
168 afford all parties an opportunity to comment on the information.
169 (10) Nothing in this section limits a party's right to an adjudicative proceeding under
170 Title 63G, Chapter 4, Administrative Procedures Act.
171 Section 3. Section 19-2-104 is amended to read:
172 19-2-104. Powers of board.
173 (1) The board may make rules in accordance with Title 63G, Chapter 3, Utah
174 Administrative Rulemaking Act:
175 (a) regarding the control, abatement, and prevention of air pollution from all sources
176 and the establishment of the maximum quantity of air contaminants that may be emitted by any
177 air contaminant source;
178 (b) establishing air quality standards;
179 (c) requiring persons engaged in operations which result in air pollution to:
180 (i) install, maintain, and use emission monitoring devices, as the board finds necessary;
181 (ii) file periodic reports containing information relating to the rate, period of emission,
182 and composition of the air contaminant; and

183 (iii) provide access to records relating to emissions which cause or contribute to air
184 pollution;
185 (d) implementing 15 U.S.C.A. 2601 et seq. Toxic Substances Control Act, Subchapter
186 II - Asbestos Hazard Emergency Response, and reviewing and approving asbestos management
187 plans submitted by local education agencies under that act;
188 (e) establishing a requirement for a diesel emission opacity inspection and maintenance
189 program for diesel-powered motor vehicles;
190 (f) implementing an operating permit program as required by and in conformity with
191 Titles IV and V of the federal Clean Air Act Amendments of 1990;
192 (g) establishing requirements for county emissions inspection and maintenance
193 programs after obtaining agreement from the counties that would be affected by the
194 requirements;
195 (h) with the approval of the governor, implementing in air quality nonattainment areas
196 employer-based trip reduction programs applicable to businesses having more than 100
197 employees at a single location and applicable to federal, state, and local governments to the
198 extent necessary to attain and maintain ambient air quality standards consistent with the state
199 implementation plan and federal requirements under the standards set forth in Subsection (2);
200 and
201 (i) implementing lead-based paint remediation training, certification, and performance
202 requirements in accordance with 15 U.S.C.A. 2601 et seq., Toxic Substances Control Act,
203 Subchapter IV -- Lead Exposure Reduction, Sections 402 and 406.
204 (2) When implementing Subsection (1)(h) the board shall take into consideration:
205 (a) the impact of the business on overall air quality; and
206 (b) the need of the business to use automobiles in order to carry out its business
207 purposes.
208 (3) The board may:
209 (a) (i) hold [hearings] a hearing that is not an adjudicative proceeding relating to any
210 aspect of or matter in the administration of this chapter and compel the attendance of witnesses
211 and the production of documents and other evidence, administer oaths and take testimony, and
212 receive evidence as necessary;
213 (ii) receive a proposed dispositive action from an administrative law judge as provided

214 by Section 19-1-301 ; and
215 (iii) (A) approve, approve with modifications, or disapprove a proposed dispositive
216 action; or
217 (B) return the proposed dispositive action to the administrative law judge for further
218 action as directed;
219 (b) issue orders necessary to enforce the provisions of this chapter, enforce the orders
220 by appropriate administrative and judicial proceedings, and institute judicial proceedings to
221 secure compliance with this chapter;
222 (c) settle or compromise any civil action initiated to compel compliance with this
223 chapter and the rules made under this chapter;
224 (d) secure necessary scientific, technical, administrative, and operational services,
225 including laboratory facilities, by contract or otherwise;
226 (e) prepare and develop a comprehensive plan or plans for the prevention, abatement,
227 and control of air pollution in this state;
228 (f) encourage voluntary cooperation by persons and affected groups to achieve the
229 purposes of this chapter;
230 (g) encourage local units of government to handle air pollution within their respective
231 jurisdictions on a cooperative basis and provide technical and consultative assistance to them;
232 (h) encourage and conduct studies, investigations, and research relating to air
233 contamination and air pollution and their causes, effects, prevention, abatement, and control;
234 (i) determine by means of field studies and sampling the degree of air contamination
235 and air pollution in all parts of the state;
236 (j) monitor the effects of the emission of air contaminants from motor vehicles on the
237 quality of the outdoor atmosphere in all parts of this state and take appropriate action with
238 respect to them;
239 (k) collect and disseminate information and conduct educational and training programs
240 relating to air contamination and air pollution;
241 (l) advise, consult, contract, and cooperate with other agencies of the state, local
242 governments, industries, other states, interstate or interlocal agencies, the federal government,
243 and with interested persons or groups;
244 (m) consult, upon request, with any person proposing to construct, install, or otherwise

245 acquire an air contaminant source in the state concerning the efficacy of any proposed control
246 device, or system for this source, or the air pollution problem which may be related to the
247 source, device, or system, but a consultation does not relieve any person from compliance with
248 this chapter, the rules adopted under it, or any other provision of law;
249 (n) accept, receive, and administer grants or other funds or gifts from public and
250 private agencies, including the federal government, for the purpose of carrying out any of the
251 functions of this chapter;
252 (o) require the owner and operator of each new source which directly emits or has the
253 potential to emit 100 tons per year or more of any air contaminant or the owner or operator of
254 each existing source which by modification will increase emissions or have the potential of
255 increasing emissions by 100 tons per year or more of any air contaminant, to pay a fee
256 sufficient to cover the reasonable costs of:
257 (i) reviewing and acting upon the notice required under Section 19-2-108 ; and
258 (ii) implementing and enforcing requirements placed on the sources by any approval
259 order issued pursuant to notice, not including any court costs associated with any enforcement
260 action;
261 (p) assess and collect noncompliance penalties as required in Section 120 of the federal
262 Clean Air Act, 42 U.S.C. Sec. 7420;
263 (q) meet the requirements of federal air pollution laws;
264 (r) establish work practice, certification, and clearance air sampling requirements for
265 persons who:
266 (i) contract for hire to conduct demolition, renovation, salvage, encapsulation work
267 involving friable asbestos-containing materials, or asbestos inspections;
268 (ii) conduct work described in Subsection (3)(r)(i) in areas to which the general public
269 has unrestrained access or in school buildings that are subject to the federal Asbestos Hazard
270 Emergency Response Act of 1986;
271 (iii) conduct asbestos inspections in facilities subject to 15 U.S.C.A. 2601 et seq.,
272 Toxic Substances Control Act, Subchapter II - Asbestos Hazard Emergency Response; or
273 (iv) conduct lead paint inspections in facilities subject to 15 U.S.C.A. 2601 et seq.,
274 Toxic Substances Control Act, Subchapter IV -- Lead Exposure Reduction;
275 (s) establish certification requirements for persons required under 15 U.S.C.A. 2601 et

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

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

338 or equipment from a particular supplier or produced by a particular manufacturer if the required
339 performance standards may be met by machinery, devices, or equipment otherwise available.
340 (6) (a) Any authorized officer, employee, or representative of the board may enter and
341 inspect any property, premise, or place on or at which an air contaminant source is located or is
342 being constructed, modified, installed, or established at any reasonable time for the purpose of
343 ascertaining the state of compliance with this chapter and the rules adopted under it.
344 (b) (i) A person may not refuse entry or access to any authorized representative of the
345 board who requests entry for purposes of inspection and who presents appropriate credentials.
346 (ii) A person may not obstruct, hamper, or interfere with any inspection.
347 (c) If requested, the owner or operator of the premises shall receive a report setting
348 forth all facts found which relate to compliance status.
349 Section 5. Section 19-2-109.1 is amended to read:
350 19-2-109.1. Operating permit required -- Emissions fee -- Implementation.
351 (1) As used in this section and Sections 19-2-109.2 and 19-2-109.3 :
352 (a) "EPA" means the federal Environmental Protection Agency.
353 (b) "1990 Clean Air Act" means the federal Clean Air Act as amended in 1990.
354 (c) "Operating permit" means a permit issued by the executive secretary to sources of
355 air pollution that meet the requirements of Titles IV and V of the 1990 Clean Air Act.
356 (d) "Program" means the air pollution operating permit program established under this
357 section to comply with Title V of the 1990 Clean Air Act.
358 (e) "Regulated pollutant" has the same meaning as defined in Title V of the 1990 Clean
359 Air Act and implementing federal regulations.
360 (2) (a) A person may not operate any source of air pollution required to have a permit
361 under Title V of the 1990 Clean Air Act without having obtained an operating permit from the
362 executive secretary under procedures the board establishes by rule.
363 (b) A person is not required to submit an operating permit application until the
364 governor has submitted an operating permit program to the EPA.
365 (c) Any operating permit issued under this section may not become effective until the
366 day after the EPA issues approval of the permit program or November 15, 1995, whichever
367 occurs first.
368 (3) (a) Operating permits issued under this section shall be for a period of five years

369 unless the board makes a written finding, after public comment and hearing, and based on
370 substantial evidence in the record, that an operating permit term of less than five years is
371 necessary to protect the public health and the environment of the state.
372 (b) The executive secretary may issue, modify, or renew an operating permit only after
373 providing public notice, an opportunity for public comment, and an opportunity for a public
374 hearing.
375 (c) The executive secretary shall, in conformity with the 1990 Clean Air Act and
376 implementing federal regulations, revise the conditions of issued operating permits to
377 incorporate applicable federal regulations in conformity with Section 502(b)(9) of the 1990
378 Clean Air Act, if the remaining period of the permit is three or more years.
379 (d) The executive secretary may terminate, modify, revoke, or reissue an operating
380 permit for cause.
381 (4) (a) The board shall establish a proposed annual emissions fee that conforms with
382 Title V of the 1990 Clean Air Act for each ton of regulated pollutant, applicable to all sources
383 required to obtain a permit. The emissions fee established under this section is in addition to
384 fees assessed under Section 19-2-108 for issuance of an approval order.
385 (b) In establishing the fee the board shall comply with the provisions of Section
386 63J-1-303 that require a public hearing and require the established fee to be submitted to the
387 Legislature for its approval as part of the department's annual appropriations request.
388 (c) The fee shall cover all reasonable direct and indirect costs required to develop and
389 administer the program and the small business assistance program established under Section
390 19-2-109.2 . The board shall prepare an annual report of the emissions fees collected and the
391 costs covered by those fees under this Subsection (4).
392 (d) The fee shall be established uniformly for all sources required to obtain an
393 operating permit under the program and for all regulated pollutants.
394 (e) The fee may not be assessed for emissions of any regulated pollutant if the
395 emissions are already accounted for within the emissions of another regulated pollutant.
396 (f) An emissions fee may not be assessed for any amount of a regulated pollutant
397 emitted by any source in excess of 4,000 tons per year of that regulated pollutant.
398 (5) Emissions fees for the period:
399 (a) of July 1, 1992, through June 30, 1993, shall be based on the most recent emissions

400 inventory prepared by the executive secretary; and
401 (b) on and after July 1, 1993, but prior to issuance of an operating permit, shall be
402 based on the most recent emissions inventory, unless a source elects prior to July 1, 1992, to
403 base the fee on allowable emissions, if applicable for a regulated pollutant.
404 (6) After an operating permit is issued the emissions fee shall be based on actual
405 emissions for a regulated pollutant unless a source elects, prior to the issuance or renewal of a
406 permit, to base the fee during the period of the permit on allowable emissions for that regulated
407 pollutant.
408 (7) If the owner or operator of a source subject to this section fails to timely pay an
409 annual emissions fee, the executive secretary may:
410 (a) impose a penalty of not more than 50% of the fee, in addition to the fee, plus
411 interest on the fee computed at 12% annually; or
412 (b) revoke the operating permit.
413 (8) The owner or operator of a source subject to this section may contest an emissions
414 fee assessment or associated penalty in an adjudicative hearing under the Title 63G, Chapter 4,
415 Administrative Procedures Act, and Section 19-1-301 , as provided in this Subsection (8).
416 (a) The owner or operator must pay the fee under protest prior to being entitled to a
417 hearing. Payment of an emissions fee or penalty under protest is not a waiver of the right to
418 contest the fee or penalty under this section.
419 (b) A request for a hearing under this subsection shall be made after payment of the
420 emissions fee and within six months after the emissions fee was due.
421 (9) To reinstate an operating permit revoked under Subsection (7) the owner or
422 operator shall pay all outstanding emissions fees, a penalty of not more than 50% of all
423 outstanding fees, and interest on the outstanding emissions fees computed at 12% annually.
424 (10) All emissions fees and penalties collected by the department under this section
425 shall be deposited in the General Fund as the Air Pollution Operating Permit Program
426 dedicated credit to be used solely to pay for the reasonable direct and indirect costs incurred by
427 the department in developing and administering the program and the small business assistance
428 program under Section 19-2-109.2 .
429 (11) Failure of the executive secretary to act on any operating permit application or
430 renewal is a final administrative action only for the purpose of obtaining judicial review by any

431 of the following persons to require the executive secretary to take action on the permit or its
432 renewal without additional delay:
433 (a) the applicant;
434 (b) any person who participated in the public comment process; or
435 (c) any other person who could obtain judicial review of that action under applicable
436 law.
437 Section 6. Section 19-2-109.5 is amended to read:
438 19-2-109.5. Private sector air quality permitting professionals certification
439 program.
440 (1) As used in this section, "AQPP" means an air quality permitting professional.
441 (2) The board may establish a program to certify private sector AQPPs, including
442 consultants and employees of companies that may seek air quality permits from the division.
443 Any program established under this section shall include:
444 (a) a training program established and operated by the department, which describes and
445 explains the state law and rules regarding the air quality permit application and approval
446 procedure under this chapter;
447 (b) the requirement to pass an exam to measure qualifications of AQPP applicants;
448 (c) an option for certification of an AQPP by passing the exam without undergoing any
449 training required under the program;
450 (d) an application process, including a fee established under Section 63J-1-303 that
451 covers the costs of the training, testing, and application process and the department's
452 maintenance of a list of certified AQPPs;
453 (e) certification of qualified AQPP applicants;
454 (f) maintenance by the department of a current list of certified AQPPs, which is
455 available to the public;
456 (g) procedures for the expedited review by the department of air quality permit
457 applications submitted by certified AQPPs; and
458 (h) professional standards for AQPPs.
459 (3) The board may not require AQPP certification as a condition of preparing or
460 submitting a notice of intent or operating permit application under this chapter.
461 (4) Any program under this section shall provide for revocation of any certification

462 issued under this section if the department determines, through an administrative hearing
463 conducted under Title 63G, Chapter 4, Administrative Procedures Act, and Section 19-1-301 ,
464 that the AQPP:
465 (a) knowingly or negligently submitted false information or data as part of an air
466 quality permit application;
467 (b) prepared more than three air quality permit applications in one calendar year in a
468 manner that each did not substantially comply with department application requirements; or
469 (c) prepared any air quality permit application in violation of the professional standards
470 defined by department rule.
471 Section 7. Section 19-2-110 is amended to read:
472 19-2-110. Violations -- Notice to violator -- Corrective action orders --
473 Conference, conciliation, and persuasion by board.
474 (1) (a) Whenever the executive secretary has reason to believe that a violation of any
475 provision of this chapter or any rule issued under it has occurred, he may serve written notice
476 of the violation upon the alleged violator. The notice shall specify the provision of this chapter
477 or rule alleged to be violated, the facts alleged to constitute the violation, and may include an
478 order that necessary corrective action be taken within a reasonable time.
479 (b) In lieu of beginning an adjudicative proceeding under Subsection (1)(a), the board
480 may initiate an action pursuant to Section 19-2-115 .
481 (2) Nothing in this chapter prevents the board from making efforts to obtain voluntary
482 compliance through warning, conference, conciliation, persuasion, or other appropriate means.
483 (3) Hearings may be held before[:] an administrative law judge as provided by Section
484 19-1-301 .
485 [(a) the board;]
486 [(b) a hearing examiner of the board; or]
487 [(c) a board member especially appointed by the board to hold the hearing.]
488 Section 8. Section 19-2-112 is amended to read:
489 19-2-112. Generalized condition of air pollution creating emergency -- Sources
490 causing imminent danger to health -- Powers of executive director -- Declaration of
491 emergency.
492 (1) (a) Title 63G, Chapter 4, Administrative Procedures Act, and any other provision of

493 law to the contrary notwithstanding, if the executive director finds that a generalized condition
494 of air pollution exists and that it creates an emergency requiring immediate action to protect
495 human health or safety, the executive director, with the concurrence of the governor, shall
496 order persons causing or contributing to the air pollution to reduce or discontinue immediately
497 the emission of air contaminants.
498 (b) The order shall fix a place and time, not later than 24 hours after its issuance, for a
499 hearing to be held before the governor.
500 (c) Not more than 24 hours after the commencement of this hearing, and without
501 adjournment of it, the governor shall affirm, modify, or set aside the order of the executive
502 director.
503 (2) (a) In the absence of a generalized condition of air pollution referred to in
504 Subsection (1), but if the executive director finds that emissions from the operation of one or
505 more air contaminant sources is causing imminent danger to human health or safety, the
506 executive director may commence adjudicative proceedings under Section 63G-4-502 .
507 (b) Notwithstanding Section 19-1-301 , the executive director may conduct the
508 emergency adjudicative proceeding in place of an administrative law judge.
509 (3) Nothing in this section limits any power that the governor or any other officer has
510 to declare an emergency and act on the basis of that declaration.
511 Section 9. Section 19-3-103.5 is amended to read:
512 19-3-103.5. Board authority and duties.
513 (1) The board may:
514 (a) require submittal of specifications or other information relating to licensing
515 applications for radioactive materials or registration of radiation sources for review, approval,
516 disapproval, or termination;
517 (b) issue orders necessary to enforce the provisions of this part, enforce the orders by
518 appropriate administrative and judicial proceedings, and institute judicial proceedings to secure
519 compliance with this part;
520 (c) (i) hold [hearings] a hearing that is not an adjudicative proceeding and compel the
521 attendance of witnesses, the production of documents, and other evidence, administer oaths and
522 take testimony, and receive evidence it finds proper, or appoint hearing officers to conduct a
523 hearing that is not an adjudicative proceeding and authorize them to exercise the powers under

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

555 judge on an appeal of final decisions made by the executive secretary [or appoint a hearing
556 officer to hear the appeal and make recommendations to the board] as provided by Section
557 19-1-301 ;
558 (b) prepare a radioactive waste management plan in compliance with Section 19-3-107
559 as soon as practicable; and
560 (c) impound radioactive material as authorized in Section 19-3-111 .
561 (3) Representatives of the board upon presentation of appropriate credentials may enter
562 at reasonable times upon the premises of public and private properties subject to regulation
563 under this part to perform inspections to insure compliance with this part and rules made by the
564 board.
565 Section 10. Section 19-4-104 is amended to read:
566 19-4-104. Powers of board.
567 (1) The board may:
568 (a) make rules in accordance with Title 63G, Chapter 3, Utah Administrative
569 Rulemaking Act:
570 (i) establishing standards that prescribe the maximum contaminant levels in any public
571 water system and provide for monitoring, record-keeping, and reporting of water quality related
572 matters;
573 (ii) governing design, construction, operation, and maintenance of public water
574 systems;
575 (iii) granting variances and exemptions to the requirements established under this
576 chapter that are not less stringent than those allowed under federal law;
577 (iv) protecting watersheds and water sources used for public water systems; and
578 (v) governing capacity development in compliance with Section 1420 of the federal
579 Safe Drinking Water Act, 42 U.S.C.A. 300f et seq.;
580 (b) issue orders necessary to enforce the provisions of this chapter, enforce the orders
581 by appropriate administrative and judicial proceedings, and institute judicial proceedings to
582 secure compliance with this chapter;
583 (c) (i) hold [hearings] a hearing that is not an adjudicative proceeding relating to the
584 administration of this chapter and compel the attendance of witnesses, the production of
585 documents and other evidence, administer oaths and take testimony, and receive evidence as

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

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

648 special meeting, or by an examining officer designated by the board] in accordance with
649 Section 19-1-301 .
650 (b) All decisions shall be rendered by a majority of the board.
651 [(2) (a) A hearing for a person who has been denied a permit, or who has had a permit
652 revoked, shall be conducted before the executive director or his designee.]
653 (2) (a) An administrative law judge shall conduct, on the executive director's behalf, a
654 hearing regarding an appeal of a permit decision for which the state has assumed primacy under
655 the Federal Water Pollution Control Act, 33 U.S.C. Sec. 1251 et seq.
656 (b) Notwithstanding Subsection 19-1-301 (6), the administrative law judge shall submit
657 to the executive director a proposed dispositive action.
658 (c) The executive director may:
659 (i) approve, approve with modifications, or disapprove a proposed dispositive action
660 submitted to the executive director under Subsection (2)(b); or
661 (ii) return the proposed dispositive action to the administrative law judge for further
662 action as directed.
663 [(b)] (d) The decision of the executive director is final and binding on all parties as a
664 final determination of the board unless stayed or overturned on appeal.
665 Section 13. Section 19-6-104 is amended to read:
666 19-6-104. Powers of board -- Creation of statewide solid waste management plan.
667 (1) The board shall:
668 (a) survey solid and hazardous waste generation and management practices within this
669 state and, after public hearing and after providing opportunities for comment by local
670 governmental entities, industry, and other interested persons, prepare and revise, as necessary, a
671 waste management plan for the state;
672 (b) carry out inspections pursuant to Section 19-6-109 ;
673 (c) (i) hold [hearings] a hearing that is not an adjudicative proceeding and compel the
674 attendance of witnesses, the production of documents, and other evidence, administer oaths and
675 take testimony, and receive evidence it finds proper, or appoint hearing officers to conduct a
676 hearing that is not an adjudicative proceeding who shall be delegated these powers;
677 (ii) receive a proposed dispositive action from an administrative law judge as provided
678 by Section 19-1-301 ; and

679 (iii) (A) approve, approve with modifications, or disapprove a proposed dispositive
680 action; or
681 (B) return the proposed dispositive action to the administrative law judge for further
682 action as directed;
683 (d) issue orders necessary to effectuate the provisions of this part and implementing
684 rules and enforce them by administrative and judicial proceedings, and cause the initiation of
685 judicial proceedings to secure compliance with this part;
686 (e) settle or compromise any administrative or civil action initiated to compel
687 compliance with this part and any rules adopted under this part;
688 (f) require submittal of specifications or other information relating to hazardous waste
689 plans for review, and approve, disapprove, revoke, or review the plans;
690 (g) advise, consult, cooperate with, and provide technical assistance to other agencies
691 of the state and federal government, other states, interstate agencies, and affected groups,
692 political subdivisions, industries, and other persons in carrying out the purposes of this part;
693 (h) promote the planning and application of resource recovery systems to prevent the
694 unnecessary waste and depletion of natural resources;
695 (i) meet the requirements of federal law related to solid and hazardous wastes to insure
696 that the solid and hazardous wastes program provided for in this part is qualified to assume
697 primacy from the federal government in control over solid and hazardous waste;
698 (j) (i) require any facility, including those listed in Subsection (1)(j)(ii), that is intended
699 for disposing of nonhazardous solid waste or wastes listed in Subsection (1)(j)(ii)(B) to submit
700 plans, specifications, and other information required by the board to the board prior to
701 construction, modification, installation, or establishment of a facility to allow the board to
702 determine whether the proposed construction, modification, installation, or establishment of the
703 facility will be in accordance with rules made under this part;
704 (ii) facilities referred to in Subsection (1)(j)(i) include:
705 (A) any incinerator that is intended for disposing of nonhazardous solid waste; and
706 (B) except for facilities that receive the following wastes solely for the purpose of
707 recycling, reuse, or reprocessing, any commercial facility that accepts for treatment or disposal,
708 and with the intent to make a profit: fly ash waste, bottom ash waste, slag waste, or flue gas
709 emission control waste generated primarily from the combustion of coal or other fossil fuels;

710 wastes from the extraction, beneficiation, and processing of ores and minerals; or cement kiln
711 dust wastes; and
712 (k) exercise all other incidental powers necessary to carry out the purposes of this part.
713 (2) (a) The board shall establish a comprehensive statewide solid waste management
714 plan by January 1, 1994.
715 (b) The plan shall:
716 (i) incorporate the solid waste management plans submitted by the counties;
717 (ii) provide an estimate of solid waste capacity needed in the state for the next 20
718 years;
719 (iii) assess the state's ability to minimize waste and recycle;
720 (iv) evaluate solid waste treatment, disposal, and storage options, as well as solid waste
721 needs and existing capacity;
722 (v) evaluate facility siting, design, and operation;
723 (vi) review funding alternatives for solid waste management; and
724 (vii) address other solid waste management concerns that the board finds appropriate
725 for the preservation of the public health and the environment.
726 (c) The board shall consider the economic viability of solid waste management
727 strategies prior to incorporating them into the plan and shall consider the needs of population
728 centers.
729 (d) The board shall review and modify the comprehensive statewide solid waste
730 management plan no less frequently than every five years.
731 (3) (a) The board shall determine the type of solid waste generated in the state and
732 tonnage of solid waste disposed of in the state in developing the comprehensive statewide solid
733 waste management plan.
734 (b) The board shall review and modify the inventory no less frequently than once every
735 five years.
736 (4) Subject to the limitations contained in Subsection 19-6-102 (18)(b), the board shall
737 establish siting criteria for nonhazardous solid waste disposal facilities, including incinerators.
738 Section 14. Section 19-6-704 is amended to read:
739 19-6-704. Powers and duties of the board.
740 (1) The board shall make rules under Title 63G, Chapter 3, Utah Administrative

741 Rulemaking Act, as necessary to administer this part and to comply with 40 CFR 279,
742 Standards for the Management of Used Oil, to ensure the state's primacy to manage used oil
743 under 40 CFR 279. For these purposes the board shall:
744 [(a) conduct adjudicative hearings as required in this part under Title 63G, Chapter 4,
745 Administrative Procedures Act;]
746 (a) (i) receive a proposed dispositive action from an administrative law judge as
747 provided by Section 19-1-301 ; and
748 (ii) (A) approve, approve with modifications, or disapprove a proposed dispositive
749 action; or
750 (B) return the proposed dispositive action to the administrative law judge for further
751 action as directed;
752 (b) establish by rule conditions and procedures for registration and revocation of
753 registration as a used oil collection center, used oil aggregation point, or DIYer used oil
754 collection center;
755 (c) provide by rule that used oil aggregation points that do not accept DIYer used oil
756 are required to comply with used oil collection standards under this part, but are not required to
757 be permitted or registered;
758 (d) establish by rule conditions and fees required to obtain permits and operate as used
759 oil transporters, used oil transfer facilities, used oil processors and rerefiners, and used oil fuel
760 marketers;
761 (e) establish by rule the amount of liability insurance or other financial responsibility
762 the applicant shall have to qualify for a permit under Subsection (1)(d);
763 (f) establish by rule the form and amount of reclamation surety required for
764 reclamation of any site or facility required to be permitted under this part;
765 (g) after public notice and opportunity for a public hearing, hear and act on permit
766 issues appealed under Subsection 19-6-712 (2);
767 (h) establish by rule standards for tracking, analysis, and recordkeeping regarding used
768 oil subject to regulation under this part, including:
769 (i) manifests for handling and transferring used oil;
770 (ii) analyses necessary to determine if used oil is on-specification or off-specification;
771 (iii) records documenting date, quantities, and character of used oil transported,

772 processed, transferred, or sold;
773 (iv) records documenting persons between whom transactions under this subsection
774 occurred; and
775 (v) exemption of DIYer used oil collection centers from this subsection except as
776 necessary to verify volumes of used oil picked up by a permitted transporter and the
777 transporter's name and federal EPA identification number;
778 (i) authorize inspections and audits of facilities, centers, and operations subject to
779 regulation under this part;
780 (j) establish by rule standards for:
781 (i) used oil generators;
782 (ii) used oil collection centers;
783 (iii) DIYer used oil collection centers;
784 (iv) aggregation points;
785 (v) curbside used oil collection programs;
786 (vi) used oil transporters;
787 (vii) used oil transfer facilities;
788 (viii) used oil burners;
789 (ix) used oil processors and rerefiners; and
790 (x) used oil marketers;
791 (k) establish by rule standards for determining on-specification and off-specification
792 used oil and specified mixtures of used oil, subject to Section 19-6-707 regarding rebuttable
793 presumptions;
794 (l) establish by rule standards for closure, remediation, and response to releases
795 involving used oil; and
796 (m) establish a public education program to promote used oil recycling and use of used
797 oil collection centers.
798 (2) The board may:
799 (a) (i) hold [hearings] a hearing that is not an adjudicative proceeding relating to any
800 aspect of or matter in the administration of this part and compel the attendance of witnesses
801 and the production of documents and other evidence, administer oaths and take testimony, and
802 receive evidence as necessary;

803 (ii) receive a proposed dispositive action from an administrative law judge as provided
804 by Section 19-1-301 ; and
805 (iii) (A) approve, approve with modifications, or disapprove a proposed dispositive
806 action; or
807 (B) return the proposed dispositive action to the administrative law judge for further
808 action as directed;
809 (b) require retention and submission of records required under this part; and
810 (c) require audits of records and recordkeeping procedures required under this part and
811 rules made under this part, except that audits of records regarding the fee imposed and
812 collected by the commission under Sections 19-6-714 and 19-6-715 are the responsibility of the
813 commission under Section 19-6-716 .
814 Section 15. Repealer.
815 This bill repeals:
816 Section 19-2-111, Review of orders of hearing examiner -- Procedure.




Legislative Review Note
as of 2-12-09 10:19 AM

Office of Legislative Research and General Counsel