1     
ADMINISTRATIVE LAW JUDGE AMENDMENTS

2     
2015 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Margaret Dayton

5     
House Sponsor: Keith Grover

6     

7     LONG TITLE
8     General Description:
9          This bill modifies provisions relating to permit review adjudicative proceedings.
10     Highlighted Provisions:
11          This bill:
12          ▸     addresses the procedures governing an administrative review of an order relating to
13     a permit issued by a director within the Department of Environmental Quality; and
14          ▸     makes technical and conforming changes.
15     Money Appropriated in this Bill:
16          None
17     Other Special Clauses:
18          This bill provides a coordination clause to reconcile conflicts between this bill and
19     other legislation.
20     Utah Code Sections Affected:
21     AMENDS:
22          19-1-301.5, as enacted by Laws of Utah 2012, Chapter 333 and last amended by
23     Coordination Clause, Laws of Utah 2012, Chapter 360
24     Utah Code Sections Affected by Coordination Clause:
25          19-1-301.5, as enacted by Laws of Utah 2012, Chapter 333 and last amended by
26     Coordination Clause, Laws of Utah 2012, Chapter 360
27     

28     Be it enacted by the Legislature of the state of Utah:
29          Section 1. Section 19-1-301.5 is amended to read:
30          19-1-301.5. Permit review adjudicative proceedings.
31          (1) As used in this section:
32          (a) "Dispositive action" means a final agency action that:
33          (i) the executive director takes as part of a permit review adjudicative proceeding; and
34          (ii) is subject to judicial review, in accordance with Subsection [(14)] (15).
35          (b) "Dispositive motion" means a motion that is equivalent to:
36          (i) a motion to dismiss under Utah Rules of Civil Procedure, Rule 12(b)(6);
37          (ii) a motion for judgment on the pleadings under Utah Rules of Civil Procedure, Rule
38     12(c); or
39          (iii) a motion for summary judgment under Utah Rules of Civil Procedure, Rule 56.
40          (c) "Party" means:
41          (i) the director who issued the permit order being challenged in the permit review
42     adjudicative proceeding;
43          (ii) the permittee;
44          (iii) the person who applied for the permit, if the permit was denied; or
45          (iv) a person granted intervention by the administrative law judge.
46          (d) "Permit" means any of the following issued under this title:
47          (i) a permit;
48          (ii) a plan;
49          (iii) a license;
50          (iv) an approval order; or
51          (v) another administrative authorization made by a director.
52          (e) (i) "Permit order" means an order issued by a director that:
53          (A) approves a permit;
54          (B) renews a permit;
55          (C) denies a permit;
56          (D) modifies or amends a permit; or
57          (E) revokes and reissues a permit.
58          (ii) "Permit order" does not include an order terminating a permit.
59          (f) "Permit review adjudicative proceeding" means a proceeding to resolve a challenge
60     to a permit order.
61          (2) This section governs permit review adjudicative proceedings.
62          (3) Except as expressly provided in this section, the provisions of Title 63G, Chapter 4,
63     Administrative Procedures Act, do not apply to a permit review adjudicative proceeding.
64          (4) If a public comment period was provided during the permit application process, a
65     person who challenges a permit order, including the permit applicant, may only raise an issue
66     or argument during the permit review adjudicative proceeding that:
67          (a) the person raised during the public comment period; and
68          (b) was supported with [sufficient] information or documentation [to enable] that is
69     cited with reasonable specificity and sufficiently enables the director to fully consider the
70     substance and significance of the issue.
71          (5) [The] (a) Upon request by a party, the executive director shall [appoint] issue a
72     notice of appointment appointing an administrative law judge, in accordance with Subsections
73     19-1-301(5) and (6), to conduct a permit review adjudicative proceeding.
74          (b) The executive director shall issue a notice of appointment within 30 days after the
75     day on which a party files a request.
76          (c) A notice of appointment shall include:
77          (i) the agency's file number or other reference number assigned to the permit review
78     adjudicative proceeding;
79          (ii) the name of the permit review adjudicative proceeding; and
80          (iii) the administrative law judge's name, title, mailing address, email address, and
81     telephone number.
82          (6) (a) Only the following may file a [request for agency action seeking] petition for
83     review of a permit order:
84          (i) a party; or
85          (ii) a person who is seeking to intervene under Subsection (7).
86          (b) A person who files a [request for agency action seeking] petition for review of a
87     permit order shall file the [request: (i)] petition for review within 30 days after the day on
88     which the permit order is issued[; and].
89          [(ii) in accordance with Subsections 63G-4-201(3)(a) through (c).]
90          (c) The department may, in accordance with Title 63G, Chapter 3, Utah Administrative
91     Rulemaking Act, make rules allowing the extension of the filing deadline described in
92     Subsection (6)(b).
93          (d) A petition for review shall:
94          (i) be served in accordance with department rule;
95          (ii) include the name and address of each person to whom a copy of the petition for
96     review is sent;
97          (iii) if known, include the agency's file number or other reference number assigned to
98     the permit review adjudicative proceeding;
99          (iv) state the date on which the petition for review is served;
100          (v) include a statement of the petitioner's position, including:
101          (A) the legal authority under which the petition for review is requested;
102          (B) the legal authority under which the agency has jurisdiction to review the petition
103     for review;
104          (C) each of the petitioner's arguments in support of the petitioner's requested relief;
105          (D) an explanation of how each argument described in Subsection (6)(d)(v)(C) was
106     preserved;
107          (E) a detailed description of any permit condition to which the petitioner is objecting;
108          (F) any modification or addition to the permit that the petitioner is requesting;
109          (G) a demonstration that the agency's permit decision is based on a finding of fact or
110     conclusion of law that is clearly erroneous;
111          (H) if the agency director addressed a finding of fact or conclusion of law described in
112     Subsection (6)(d)(v)(G) in a response to public comment, a citation to the comment and
113     response that relates to the finding of fact or conclusion of law and an explanation of why the
114     director's response was clearly erroneous or otherwise warrants review; and
115          (I) a claim for relief.
116          [(c)] (e) A person may not raise an issue or argument in a [request for agency action]
117     petition for review unless the issue or argument:
118          (i) was preserved in accordance with Subsection (4); or
119          (ii) was not reasonably ascertainable before or during the public comment period.
120          [(d) The department may, in accordance with Title 63G, Chapter 3, Utah
121     Administrative Rulemaking Act, make rules allowing the extension of the filing deadline
122     described in Subsection (6)(b)(i).]
123          (f) To demonstrate that an issue or argument was preserved in accordance with
124     Subsection (4), a petitioner shall include the following in the petitioner's petition for review:
125          (i) a citation to where the petitioner raised the issue or argument during the public
126     comment period; and
127          (ii) for each document upon which the petitioner relies in support of an issue or
128     argument, a description that:
129          (A) states why the document is part of the administrative record; and
130          (B) demonstrates that the petitioner cited the document with reasonable specificity in
131     accordance with Subsection (4)(b).
132          (7) (a) A person who is not a party may not participate in a permit review adjudicative
133     proceeding unless the person is granted the right to intervene under this Subsection (7).
134          (b) A person who seeks to intervene in a permit review adjudicative proceeding under
135     this section shall, within 30 days after the day on which the permit order being challenged was
136     issued, file:
137          (i) a petition to intervene that:
138          (A) meets the requirements of Subsection 63G-4-207(1); and
139          (B) demonstrates that the person is entitled to intervention under Subsection (7)(c)(ii);
140     and
141          (ii) a timely [request for agency action] petition for review.
142          (c) The permittee is a party to a permit review adjudicative proceeding regardless of
143     who files the petition for review and does not need to file a petition to intervene under
144     Subsection (7)(b).
145          [(c)] (d) An administrative law judge shall grant a petition to intervene in a permit
146     review adjudicative proceeding, if:
147          (i) the petition to intervene is timely filed; and
148          (ii) the petitioner:
149          (A) demonstrates that the petitioner's legal interests may be substantially affected by
150     the permit review adjudicative proceeding;
151          (B) demonstrates that the interests of justice and the orderly and prompt conduct of the
152     permit review adjudicative proceeding will not be materially impaired by allowing the
153     intervention; and
154          (C) in the petitioner's [request for agency action] petition for review, raises issues or
155     arguments that are preserved in accordance with Subsection (4).
156          [(d)] (e) An administrative law judge:
157          (i) shall issue an order granting or denying a petition to intervene in accordance with
158     Subsection 63G-4-207(3)(a); and
159          (ii) may impose conditions on intervenors as described in Subsections 63G-4-207(3)(b)
160     and (c).
161          [(e)] (f) The department may, in accordance with Title 63G, Chapter 3, Utah
162     Administrative Rulemaking Act, make rules allowing the extension of the filing deadline
163     described in Subsection (7)(b).
164          (8) (a) Unless the parties otherwise agree, the schedule for a permit review adjudicative
165     proceeding is as follows:
166          (i) the director shall file and serve the administrative record within 40 days after the
167     day on which the executive director issues a notice of appointment, unless otherwise ordered
168     by the administrative law judge;
169          (ii) any dispositive motion shall be filed and served within 15 days after the day on
170     which the administrative record is filed and served;
171          (iii) the petitioner shall file and serve an opening brief of no more than 30 pages:
172          (A) within 30 days after the day on which the director files and serves the
173     administrative record; or
174          (B) if a party files and serves a dispositive motion, within 30 days after the day on
175     which the administrative law judge issues a decision on the dispositive motion, including a
176     decision to defer the motion;
177          (iv) each party shall file and serve a response brief of no more than 15 pages within 15
178     days after the day on which the petitioner files and serves the opening brief;
179          (v) the petitioner may file and serve a reply brief of not more than 15 pages within 15
180     days after the day on which the response brief is filed and served; and
181          (vi) if the petitioner files and serves a reply brief, each party may file and serve a
182     surreply brief of no more than five pages within five business days after the day on which the
183     petitioner files and serves the reply brief.
184          (b) (i) A reply brief may not raise an issue that was not raised in the response brief; and
185          (ii) a surreply brief may not raise an issue that was not raised in the reply brief.
186          [(8)] (9) (a) An administrative law judge shall conduct a permit review adjudicative
187     proceeding based only on the administrative record and not as a trial de novo.
188          (b) To the extent relative to the issues and arguments raised in the [request for agency
189     action] petition for review, the administrative record [shall consist] consists of the following
190     items, if they exist:
191          (i) the permit application, draft permit, and final permit;
192          (ii) each statement of basis, fact sheet, engineering review, or other substantive
193     explanation designated by the director as part of the basis for the decision relating to the permit
194     order;
195          (iii) the notice and record of each public comment period;
196          (iv) the notice and record of each public hearing, including oral comments made during
197     the public hearing;
198          (v) written comments submitted during the public comment period;
199          (vi) responses to comments that are designated by the director as part of the basis for
200     the decision relating to the permit order;
201          (vii) any information that is:
202          (A) requested by and submitted to the director; and
203          (B) designated by the director as part of the basis for the decision relating to the permit
204     order;
205          (viii) any additional information specified by rule;
206          (ix) any additional documents agreed to by the parties; and
207          (x) information supplementing the record under Subsection [(8)] (9)(c).
208          (c) (i) There is a rebuttable presumption against supplementing the record.
209          (ii) A party may move to supplement the record described in Subsection [(8)] (9)(b)
210     with technical or factual information.
211          (iii) The administrative law judge may grant a motion to supplement the record
212     described in Subsection [(8)] (9)(b) with technical or factual information if the moving party
213     proves that:
214          (A) good cause exists for supplementing the record;
215          (B) supplementing the record is in the interest of justice; and
216          (C) supplementing the record is necessary for resolution of the issues.
217          [(iv) The administrative law judge may supplement the record with technical or factual
218     information on the administrative law judge's own motion if the administrative law judge
219     determines that adequate grounds exist to supplement the record under Subsections (8)
220     (c)(iii)(A) through (C).]
221          [(v) In supplementing the record with testimonial evidence, the administrative law
222     judge may administer an oath or take testimony as necessary.]
223          [(vi)] (iv) The department may, in accordance with Title 63G, Chapter 3, Utah
224     Administrative Rulemaking Act, make rules permitting further supplementation of the record.
225          [(9)] (10) (a) [The] Except as otherwise provided by this section, the administrative
226     law judge shall review and respond to a [request for agency action] petition for review in
227     accordance with Subsections 63G-4-201(3)(d) and (e), following the relevant procedures for
228     formal adjudicative proceedings.
229          (b) The administrative law judge shall require the parties to file responsive [pleadings]
230     briefs in accordance with [Section 63G-4-204] Subsection (8).
231          (c) If an administrative law judge enters an order of default against a party, the
232     administrative law judge shall enter the order of default in accordance with Section
233     63G-4-209[, following the relevant procedures for formal adjudicative proceedings].
234          (d) The administrative law judge, in conducting a permit review adjudicative
235     proceeding:
236          (i) may not participate in an ex parte communication with a party to the permit review
237     adjudicative proceeding regarding the merits of the permit review adjudicative proceeding
238     unless notice and an opportunity to be heard are afforded to all parties; and
239          (ii) shall, upon receiving an ex parte communication, place the communication in the
240     public record of the proceeding and afford all parties an opportunity to comment on the
241     information.
242          (e) In conducting a permit review adjudicative proceeding, the administrative law
243     judge may take judicial notice of matters not in the administrative record, in accordance with
244     Utah Rules of Evidence, Rule 201.
245          (f) An administrative law judge may take any action in a permit review adjudicative
246     proceeding that is not a dispositive action.
247          [(10)] (11) (a) A person who files a [request for agency action] petition for review has
248     the burden of demonstrating that an issue or argument raised in the [request for agency action]
249     petition for review has been preserved in accordance with Subsection (4).
250          (b) The administrative law judge shall dismiss, with prejudice, any issue or argument
251     raised in a [request for agency action] petition for review that has not been preserved in
252     accordance with Subsection (4).
253          [(11)] (12) In response to a dispositive motion, within 45 days after the day on which
254     oral argument takes place, or, if there is no oral argument, within 45 days after the day on
255     which the reply brief on the dispositive motion is due, the administrative law judge [may] shall:
256          (a) submit a proposed dispositive action to the executive director recommending full or
257     partial resolution of the permit review adjudicative proceeding, that includes:
258          [(a)] (i) written findings of fact;
259          [(b)] (ii) written conclusions of law; and
260          [(c)] (iii) a recommended order[.]; or
261          (b) if the administrative law judge determines that a full or partial resolution of the
262     permit review adjudicative proceeding is not appropriate, issue an order that explains the basis
263     for the administrative law judge's determination.
264          [(12)] (13) For each issue or argument that is not dismissed or otherwise resolved
265     under Subsection [(10)] (11)(b) or [(11)] (12), the administrative law judge shall:
266          (a) provide the parties an opportunity for briefing and oral argument in accordance with
267     this section;
268          (b) conduct a review of the director's determination, based on the record described in
269     Subsections [(8)] (9)(b), [(8)] (9)(c), and [(9)] (10)(e); and
270          (c) within 60 days after the day on which the reply brief on the dispositive motion is
271     due, submit to the executive director a proposed dispositive action, that includes:
272          (i) written findings of fact;
273          (ii) written conclusions of law; and
274          (iii) a recommended order.
275          [(13)] (14) (a) When the administrative law judge submits a proposed dispositive
276     action to the executive director, the executive director may:
277          (i) adopt, adopt with modifications, or reject the proposed dispositive action; or
278          (ii) return the proposed dispositive action to the administrative law judge for further
279     action as directed.
280          (b) On review of a proposed dispositive action, the executive director shall uphold all
281     factual, technical, and scientific agency determinations that are [supported by substantial
282     evidence taken from the record as a whole] not clearly erroneous based on the petitioner's
283     marshaling of the evidence.
284          [(c) (i) The executive director may not participate in an ex parte communication with a
285     party to the permit review adjudicative proceeding regarding the merits of the permit review
286     adjudicative proceeding unless notice and an opportunity to be heard are afforded to all
287     parties.]
288          [(ii) Upon receiving an ex parte communication, the executive director shall place the
289     communication in the public record of the proceeding and afford all parties an opportunity to
290     comment on the information.]
291          [(d)] (c) In reviewing a proposed dispositive action during a permit review adjudicative
292     proceeding, the executive director may take judicial notice of matters not in the record, in
293     accordance with Utah Rules of Evidence, Rule 201.
294          [(e)] (d) The executive director may use the executive director's technical expertise in
295     making a determination.
296          [(14)] (15) (a) A party may seek judicial review in the Utah Court of Appeals of a
297     dispositive action in a permit review adjudicative proceeding, in accordance with Sections
298     63G-4-401, 63G-4-403, and 63G-4-405.
299          (b) An appellate court shall limit its review of a dispositive action of a permit review
300     adjudicative proceeding to:
301          (i) the record described in Subsections [(8)] (9)(b), [(8)] (9)(c), [(9)] (10)(e), and
302     [(13)(d)] (14)(c); and
303          (ii) the record made by the administrative law judge and the executive director during
304     the permit review adjudicative proceeding.
305          (c) During judicial review of a dispositive action, the appellate court shall:
306          (i) review all agency determinations in accordance with Subsection 63G-4-403(4),
307     recognizing that the agency has been granted substantial discretion to interpret its governing
308     statutes and rules; and
309          (ii) uphold all factual, technical, and scientific agency determinations that are
310     [supported by substantial evidence viewed in light of the record as a whole] not clearly
311     erroneous based upon the petitioner's marshaling of the evidence.
312          [(15)] (16) (a) The filing of a [request for agency action] petition for review does not
313     stay a permit or delay the effective date of a permit.
314          (b) A permit may not be stayed or delayed unless a stay is granted under this
315     Subsection [(15)] (16).
316          (c) The administrative law judge shall:
317          (i) consider a party's motion to stay a permit during a permit review adjudicative
318     proceeding; and
319          (ii) within 45 days after the day on which the reply brief on the motion to stay is due,
320     submit a proposed determination on the stay to the executive director.
321          (d) The administrative law judge may not recommend to the executive director a stay
322     of a permit, or a portion of a permit, unless:
323          (i) all parties agree to the stay; or
324          (ii) the party seeking the stay demonstrates that:
325          (A) the party seeking the stay will suffer irreparable harm unless the stay is issued;
326          (B) the threatened injury to the party seeking the stay outweighs whatever damage the
327     proposed stay is likely to cause the party restrained or enjoined;
328          (C) the stay, if issued, would not be adverse to the public interest; and
329          (D) there is a substantial likelihood that the party seeking the stay will prevail on the
330     merits of the underlying claim, or the case presents serious issues on the merits, which should
331     be the subject of further adjudication.
332          (e) A party may appeal the executive director's decision regarding a stay of a permit to
333     the Utah Court of Appeals, in accordance with Section 78A-4-103.
334          (17) (a) Subject to Subsection (17)(c), the administrative law judge shall issue a written
335     response to a non-dispositive motion within 45 days after the day on which the reply brief on
336     the non-dispositive motion is due or, if the administrative law judge grants oral argument on
337     the non-dispositive motion, within 45 days after the day on which oral argument takes place.
338          (b) If the administrative law judge determines that the administrative law judge needs
339     more time to issue a response to a non-dispositive motion, the administrative law judge may
340     issue a response after the deadline described in Subsection (17)(a) if, before the deadline
341     expires, the administrative law judge gives notice to the parties that includes:
342          (i) the amount of additional time that the administrative law judge requires; and
343          (ii) the reason the administrative law judge needs the additional time.
344          (c) If the administrative law judge grants oral argument on a non-dispositive motion,
345     the administrative law judge shall hold the oral argument within 30 days after the day on which
346     the reply brief on the non-dispositive motion is due.
347          Section 2. Coordinating S.B. 282 with S.B. 173 -- Superseding, technical, and
348     substantive amendments.
349          If this S.B. 282 and S.B. 173, Financial Assurance Determination Review Process, both
350     pass and become law, it is the intent of the Legislature that the Office of Legislative Research
351     and General Counsel, in preparing the Utah Code database for publication, modify Section
352     19-1-301.5 to read as follows:
353          "19-1-301.5. Permit review and financial assurance determination special
354     adjudicative proceedings.
355          (1) As used in this section:
356          (a) "Dispositive action" means a final agency action that:
357          (i) the executive director takes as part of a [permit review] special adjudicative
358     proceeding; and
359          (ii) is subject to judicial review, in accordance with Subsection [(14)] (15).
360          (b) "Dispositive motion" means a motion that is equivalent to:
361          (i) a motion to dismiss under Utah Rules of Civil Procedure, Rule 12(b)(6);
362          (ii) a motion for judgment on the pleadings under Utah Rules of Civil Procedure, Rule
363     12(c); or
364          (iii) a motion for summary judgment under Utah Rules of Civil Procedure, Rule 56.
365          (c) "Financial assurance determination" means a decision on whether a facility, site,
366     plan, party, broker, owner, operator, generator, or permittee has met financial assurance or
367     financial responsibility requirements as determined by the director of the:
368          (i) Division of Radiation Control under Subsection 19-3-104(12); or
369          (ii) Division of Solid and Hazardous Waste under Subsection 19-6-108(9)(c).
370          [(c)] (d) "Party" means:
371          (i) the director who issued the permit order or financial assurance determination that is
372     being challenged in the [permit review] special adjudicative proceeding under this section;
373          (ii) the permittee;
374          (iii) the person who applied for the permit, if the permit was denied; [or]
375          (iv) the person who is subject to a financial assurance determination; or
376          [(iv)] (v) a person granted intervention by the administrative law judge.
377          [(d)] (e) "Permit" means any of the following issued under this title:
378          (i) a permit;
379          (ii) a plan;
380          (iii) a license;
381          (iv) an approval order; or
382          (v) another administrative authorization made by a director.
383          [(e)] (f) (i) "Permit order" means an order issued by a director that:
384          (A) approves a permit;
385          (B) renews a permit;
386          (C) denies a permit;
387          (D) modifies or amends a permit; or
388          (E) revokes and reissues a permit.
389          (ii) "Permit order" does not include an order terminating a permit.
390          [(f) "Permit review adjudicative proceeding" means a proceeding to resolve a challenge
391     to a permit order.]
392          (g) "Special adjudicative proceeding" means a proceeding under this section to resolve
393     a challenge to a:
394          (i) permit order; or
395          (ii) financial assurance determination.
396          (2) This section governs permit [review adjudicative] special proceedings.
397          (3) Except as expressly provided in this section, the provisions of Title 63G, Chapter 4,
398     Administrative Procedures Act, do not apply to a [permit review] special adjudicative
399     proceeding under this section.
400          (4) If a public comment period was provided during the permit application process or
401     the financial assurance determination process, a person who challenges [a permit order,
402     including the permit applicant,] an order, application, or determination may only raise an issue
403     or argument during the [permit review] special adjudicative proceeding that:
404          (a) the person raised during the public comment period; and
405          (b) was supported with [sufficient] information or documentation [to enable] that is
406     cited with reasonable specificity and sufficiently enables the director to fully consider the
407     substance and significance of the issue.
408          (5) [The] (a) Upon request by a party, the executive director shall [appoint] issue a
409     notice of appointment appointing an administrative law judge, in accordance with Subsections
410     19-1-301(5) and (6), to conduct a [permit review] special adjudicative proceeding under this
411     section.
412          (b) The executive director shall issue a notice of appointment within 30 days after the
413     day on which a party files a request.
414          (c) A notice of appointment shall include:
415          (i) the agency's file number or other reference number assigned to the special
416     adjudicative proceeding;
417          (ii) the name of the special adjudicative proceeding; and
418          (iii) the administrative law judge's name, title, mailing address, email address, and
419     telephone number.
420          (6) (a) Only the following may file a [request for agency action seeking] petition for
421     review of a permit order or financial assurance determination:
422          (i) a party; or
423          (ii) a person who is seeking to intervene under Subsection (7).
424          (b) A person who files a [request for agency action seeking] petition for review of a
425     permit order or a financial assurance determination shall file the [request: (i)] petition for
426     review within 30 days after the day on which the permit order or the financial assurance
427     determination is issued[; and].
428          [(ii) in accordance with Subsections 63G-4-201(3)(a) through (c).]
429          (c) The department may, in accordance with Title 63G, Chapter 3, Utah Administrative
430     Rulemaking Act, make rules allowing the extension of the filing deadline described in
431     Subsection (6)(b).
432          (d) A petition for review shall:
433          (i) be served in accordance with department rule;
434          (ii) include the name and address of each person to whom a copy of the petition for
435     review is sent;
436          (iii) if known, include the agency's file number or other reference number assigned to
437     the special adjudicative proceeding;
438          (iv) state the date on which the petition for review is served;
439          (v) include a statement of the petitioner's position, including, as applicable:
440          (A) the legal authority under which the petition for review is requested;
441          (B) the legal authority under which the agency has jurisdiction to review the petition
442     for review;
443          (C) each of the petitioner's arguments in support of the petitioner's requested relief;
444          (D) an explanation of how each argument described in Subsection (6)(d)(v)(C) was
445     preserved;
446          (E) a detailed description of any permit condition to which the petitioner is objecting;
447          (F) any modification or addition to a permit that the petitioner is requesting;
448          (G) a demonstration that the agency's permit decision is based on a finding of fact or
449     conclusion of law that is clearly erroneous;
450          (H) if the agency director addressed a finding of fact or conclusion of law described in
451     Subsection (6)(d)(v)(G) in a response to public comment, a citation to the comment and
452     response that relates to the finding of fact or conclusion of law and an explanation of why the
453     director's response was clearly erroneous or otherwise warrants review; and
454          (I) a claim for relief.
455          [(c)] (e) A person may not raise an issue or argument in a [request for agency action]
456     petition for review unless the issue or argument:
457          (i) was preserved in accordance with Subsection (4); or
458          (ii) was not reasonably ascertainable before or during the public comment period.
459          [(d) The department may, in accordance with Title 63G, Chapter 3, Utah
460     Administrative Rulemaking Act, make rules allowing the extension of the filing deadline
461     described in Subsection (6)(b)(i).]
462          (f) To demonstrate that an issue or argument was preserved in accordance with
463     Subsection (4), a petitioner shall include the following in the petitioner's petition for review:
464          (i) a citation to where the petitioner raised the issue or argument during the public
465     comment period; and
466          (ii) for each document upon which the petitioner relies in support of an issue or
467     argument, a description that:
468          (A) states why the document is part of the administrative record; and
469          (B) demonstrates that the petitioner cited the document with reasonable specificity in
470     accordance with Subsection (4)(b).
471          (7) (a) A person who is not a party may not participate in a [permit review] special
472     adjudicative proceeding under this section unless the person is granted the right to intervene
473     under this Subsection (7).
474          (b) A person who seeks to intervene in a [permit review] special adjudicative
475     proceeding under this section shall, within 30 days after the day on which the permit order or
476     the financial assurance determination being challenged was issued, file:
477          (i) a petition to intervene that:
478          (A) meets the requirements of Subsection 63G-4-207(1); and
479          (B) demonstrates that the person is entitled to intervention under Subsection
480     (7)[(c)](d)(ii); and
481          (ii) a timely [request for agency action] petition for review.
482          (c) In a special adjudicative proceeding to review a permit order, the permittee is a
483     party to the special adjudicative proceeding regardless of who files the petition for review and
484     does not need to file a petition to intervene under Subsection (7)(b).
485          [(c)] (d) An administrative law judge shall grant a petition to intervene in a [permit
486     review] special adjudicative proceeding, if:
487          (i) the petition to intervene is timely filed; and
488          (ii) the petitioner:
489          (A) demonstrates that the petitioner's legal interests may be substantially affected by
490     the [permit review] special adjudicative proceeding;
491          (B) demonstrates that the interests of justice and the orderly and prompt conduct of the
492     [permit review] special adjudicative proceeding will not be materially impaired by allowing the
493     intervention; and
494          (C) in the petitioner's [request for agency action] petition for review, raises issues or
495     arguments that are preserved in accordance with Subsection (4).
496          [(d)] (e) An administrative law judge:
497          (i) shall issue an order granting or denying a petition to intervene in accordance with
498     Subsection 63G-4-207(3)(a); and
499          (ii) may impose conditions on intervenors as described in Subsections 63G-4-207(3)(b)
500     and (c).
501          [(e)] (f) The department may, in accordance with Title 63G, Chapter 3, Utah
502     Administrative Rulemaking Act, make rules allowing the extension of the filing deadline
503     described in Subsection (7)(b).
504          (8) (a) Unless the parties otherwise agree, the schedule for a special adjudicative
505     proceeding is as follows:
506          (i) the director shall file and serve the administrative record within 40 days after the
507     day on which the executive director issues a notice of appointment, unless otherwise ordered
508     by the administrative law judge;
509          (ii) any dispositive motion shall be filed and served within 15 days after the day on
510     which the administrative record is filed and served;
511          (iii) the petitioner shall file and serve an opening brief of no more than 30 pages:
512          (A) within 30 days after the day on which the director files and serves the
513     administrative record; or
514          (B) if a party files and serves a dispositive motion, within 30 days after the day on
515     which the administrative law judge issues a decision on the dispositive motion, including a
516     decision to defer the motion;
517          (iv) each party shall file and serve a response brief of no more than 15 pages within 15
518     days after the day on which the petitioner files and serves the opening brief;
519          (v) the petitioner may file and serve a reply brief of not more than 15 pages within 15
520     days after the day on which the response brief is filed and served; and
521          (vi) if the petitioner files and serves a reply brief, each party may file and serve a
522     surreply brief of no more than five pages within five business days after the day on which the
523     petitioner files and serves the reply brief.
524          (b) (i) A reply brief may not raise an issue that was not raised in the response brief.
525          (ii) A surreply brief may not raise an issue that was not raised in the reply brief.
526          [(8)] (9) (a) An administrative law judge shall conduct a [permit review] special
527     adjudicative proceeding based only on the administrative record and not as a trial de novo.
528          (b) To the extent relative to the issues and arguments raised in the [request for agency
529     action] petition for review, the administrative record [shall consist] consists of the following
530     items, if they exist:
531          (i) (A) for review of a permit order, the permit application, draft permit, and final
532     permit; or
533          (B) for review of a financial assurance determination, the proposed financial assurance
534     determination from the owner or operator of the facility, the draft financial assurance
535     determination, and the final financial assurance determination;
536          (ii) each statement of basis, fact sheet, engineering review, or other substantive
537     explanation designated by the director as part of the basis for the decision relating to the permit
538     order or the financial assurance determination;
539          (iii) the notice and record of each public comment period;
540          (iv) the notice and record of each public hearing, including oral comments made during
541     the public hearing;
542          (v) written comments submitted during the public comment period;
543          (vi) responses to comments that are designated by the director as part of the basis for
544     the decision relating to the permit order or the financial assurance determination;
545          (vii) any information that is:
546          (A) requested by and submitted to the director; and
547          (B) designated by the director as part of the basis for the decision relating to the permit
548     order or the financial assurance determination;
549          (viii) any additional information specified by rule;
550          (ix) any additional documents agreed to by the parties; and
551          (x) information supplementing the record under Subsection [(8)] (9)(c).
552          (c) (i) There is a rebuttable presumption against supplementing the record.
553          (ii) A party may move to supplement the record described in Subsection [(8)] (9)(b)
554     with technical or factual information.
555          (iii) The administrative law judge may grant a motion to supplement the record
556     described in Subsection [(8)] (9)(b) with technical or factual information if the moving party
557     proves that:
558          (A) good cause exists for supplementing the record;
559          (B) supplementing the record is in the interest of justice; and
560          (C) supplementing the record is necessary for resolution of the issues.
561          [(iv) The administrative law judge may supplement the record with technical or factual
562     information on the administrative law judge's own motion if the administrative law judge
563     determines that adequate grounds exist to supplement the record under Subsections
564     (8)(c)(iii)(A) through (C).]
565          [(v) In supplementing the record with testimonial evidence, the administrative law
566     judge may administer an oath or take testimony as necessary.]
567          [(vi)] (iv) The department may, in accordance with Title 63G, Chapter 3, Utah
568     Administrative Rulemaking Act, make rules permitting further supplementation of the record.
569          [(9)] (10) (a) [The] Except as otherwise provided by this section, the administrative
570     law judge shall review and respond to a [request for agency action] petition for review in
571     accordance with Subsections 63G-4-201(3)(d) and (e), following the relevant procedures for
572     formal adjudicative proceedings.
573          (b) The administrative law judge shall require the parties to file responsive [pleadings]
574     briefs in accordance with [Section 63G-4-204] Subsection (8).
575          (c) If an administrative law judge enters an order of default against a party, the
576     administrative law judge shall enter the order of default in accordance with Section
577     63G-4-209[, following the relevant procedures for formal adjudicative proceedings].
578          (d) The administrative law judge, in conducting a [permit review] special adjudicative
579     proceeding:
580          (i) may not participate in an ex parte communication with a party to the [permit
581     review] special adjudicative proceeding regarding the merits of the [permit review] special
582     adjudicative proceeding unless notice and an opportunity to be heard are afforded to all parties;
583     and
584          (ii) shall, upon receiving an ex parte communication, place the communication in the
585     public record of the proceeding and afford all parties an opportunity to comment on the
586     information.
587          (e) In conducting a [permit review] special adjudicative proceeding, the administrative
588     law judge may take judicial notice of matters not in the administrative record, in accordance
589     with Utah Rules of Evidence, Rule 201.
590          (f) An administrative law judge may take any action in a [permit review] special
591     adjudicative proceeding that is not a dispositive action.
592          [(10)] (11) (a) A person who files a [request for agency action] petition for review has
593     the burden of demonstrating that an issue or argument raised in the [request for agency action]
594     petition for review has been preserved in accordance with Subsection (4).
595          (b) The administrative law judge shall dismiss, with prejudice, any issue or argument
596     raised in a [request for agency action] petition for review that has not been preserved in
597     accordance with Subsection (4).
598          [(11)] (12) In response to a dispositive motion, within 45 days after the day on which
599     oral argument takes place, or, if there is no oral argument, within 45 days after the day on
600     which the reply brief on the dispositive motion is due, the administrative law judge [may] shall:
601          (a) submit a proposed dispositive action to the executive director recommending full or
602     partial resolution of the [permit review] special adjudicative proceeding, that includes:
603          [(a)] (i) written findings of fact;
604          [(b)] (ii) written conclusions of law; and
605          [(c)] (iii) a recommended order[.]; or
606          (b) if the administrative law judge determines that a full or partial resolution of the
607     special adjudicative proceeding is not appropriate, issue an order that explains the basis for the
608     administrative law judge's determination.
609          [(12)] (13) For each issue or argument that is not dismissed or otherwise resolved
610     under Subsection [(10)] (11)(b) or [(11)] (12), the administrative law judge shall:
611          (a) provide the parties an opportunity for briefing and oral argument in accordance with
612     this section;
613          (b) conduct a review of the director's order or determination, based on the record
614     described in Subsections [(8)] (9)(b), [(8)] (9)(c), and [(9)] (10)(e); and
615          (c) within 60 days after the day on which the reply brief on the dispositive motion is
616     due, submit to the executive director a proposed dispositive action, that includes:
617          (i) written findings of fact;
618          (ii) written conclusions of law; and
619          (iii) a recommended order.
620          [(13)] (14) (a) When the administrative law judge submits a proposed dispositive
621     action to the executive director, the executive director may:
622          (i) adopt, adopt with modifications, or reject the proposed dispositive action; or
623          (ii) return the proposed dispositive action to the administrative law judge for further
624     action as directed.
625          (b) On review of a proposed dispositive action, the executive director shall uphold all
626     factual, technical, and scientific agency determinations that are [supported by substantial
627     evidence taken from the record as a whole] not clearly erroneous based on the petitioner's
628     marshaling of the evidence.
629          [(c) (i) The executive director may not participate in an ex parte communication with a
630     party to the permit review adjudicative proceeding regarding the merits of the permit review
631     adjudicative proceeding unless notice and an opportunity to be heard are afforded to all
632     parties.]
633          [(ii) Upon receiving an ex parte communication, the executive director shall place the
634     communication in the public record of the proceeding and afford all parties an opportunity to
635     comment on the information.]
636          [(d)] (c) In reviewing a proposed dispositive action during a [permit review] special
637     adjudicative proceeding, the executive director may take judicial notice of matters not in the
638     record, in accordance with Utah Rules of Evidence, Rule 201.
639          [(e)] (d) The executive director may use the executive director's technical expertise in
640     making a determination.
641          [(14)] (15) (a) A party may seek judicial review in the Utah Court of Appeals of a
642     dispositive action in a [permit review] special adjudicative proceeding, in accordance with
643     Sections 63G-4-401, 63G-4-403, and 63G-4-405.
644          (b) An appellate court shall limit its review of a dispositive action of a [permit review]
645     special adjudicative proceeding under this section to:
646          (i) the record described in Subsections [(8)] (9)(b), [(8)] (9)(c), [(9)] (10)(e), and
647     [(13)(d)] (14)(c); and
648          (ii) the record made by the administrative law judge and the executive director during
649     the [permit review] special adjudicative proceeding.
650          (c) During judicial review of a dispositive action, the appellate court shall:
651          (i) review all agency determinations in accordance with Subsection 63G-4-403(4),
652     recognizing that the agency has been granted substantial discretion to interpret its governing
653     statutes and rules; and
654          (ii) uphold all factual, technical, and scientific agency determinations that are
655     [supported by substantial evidence viewed in light of the record as a whole] not clearly
656     erroneous based upon the petitioner's marshaling of the evidence.
657          [(15)] (16) (a) The filing of a [request for agency action] petition for review does not:
658          (i) stay a permit order or a financial assurance determination; or
659          (ii) delay the effective date of a permit order or a portion of a financial assurance
660     determination.
661          (b) A permit order or a financial assurance determination may not be stayed or delayed
662     unless a stay is granted under this Subsection [(15)] (16).
663          (c) The administrative law judge shall:
664          (i) consider a party's motion to stay a permit order or a financial assurance
665     determination during a [permit review] special adjudicative proceeding; and
666          (ii) within 45 days after the day on which the reply brief on the motion to stay is due,
667     submit a proposed determination on the stay to the executive director.
668          (d) The administrative law judge may not recommend to the executive director a stay
669     of a permit order or a financial assurance determination, or a portion of a permit order or a
670     portion of a financial assurance determination, unless:
671          (i) all parties agree to the stay; or
672          (ii) the party seeking the stay demonstrates that:
673          (A) the party seeking the stay will suffer irreparable harm unless the stay is issued;
674          (B) the threatened injury to the party seeking the stay outweighs whatever damage the
675     proposed stay is likely to cause the party restrained or enjoined;
676          (C) the stay, if issued, would not be adverse to the public interest; and
677          (D) there is a substantial likelihood that the party seeking the stay will prevail on the
678     merits of the underlying claim, or the case presents serious issues on the merits, which should
679     be the subject of further adjudication.
680          (e) A party may appeal the executive director's decision regarding a stay of a permit
681     order or a financial assurance determination to the Utah Court of Appeals, in accordance with
682     Section 78A-4-103.
683          (17) (a) Subject to Subsection (17)(c), the administrative law judge shall issue a written
684     response to a non-dispositive motion within 45 days after the day on which the reply brief on
685     the non-dispositive motion is due or, if the administrative law judge grants oral argument on
686     the non-dispositive motion, within 45 days after the day on which oral argument takes place.
687          (b) If the administrative law judge determines that the administrative law judge needs
688     more time to issue a response to a non-dispositive motion, the administrative law judge may
689     issue a response after the deadline described in Subsection (17)(a) if, before the deadline
690     expires, the administrative law judge gives notice to the parties that includes:
691          (i) the amount of additional time that the administrative law judge requires; and
692          (ii) the reason the administrative law judge needs the additional time.
693          (c) If the administrative law judge grants oral argument on a non-dispositive motion,
694     the administrative law judge shall hold the oral argument within 30 days after the day on which
695     the reply brief on the non-dispositive motion is due."