1     
FINANCIAL ASSURANCE DETERMINATION REVIEW

2     
PROCESS

3     
2015 GENERAL SESSION

4     
STATE OF UTAH

5     
Chief Sponsor: J. Stuart Adams

6     
House Sponsor: Mike K. McKell

7     

8     LONG TITLE
9     General Description:
10          This bill modifies the Environmental Quality Code by amending provisions for certain
11     special adjudicative proceedings related to financial assurance and by enacting certain
12     rulemaking requirements related to waste disposal.
13     Highlighted Provisions:
14          This bill:
15          ▸     defines terms;
16          ▸     provides for arbitration or a special adjudicative proceeding for a challenge of a
17     financial assurance determination made by the director of the Division of Radiation
18     Control or the director of the Division of Solid and Hazardous Waste;
19          ▸     requires the Radiation Control Board to include certain provisions in rules for
20     financial assurance requirements for radioactive waste land disposal facilities; and
21          ▸     makes technical changes.
22     Money Appropriated in this Bill:
23          None
24     Other Special Clauses:
25          None
26     Utah Code Sections Affected:
27     AMENDS:

28          19-1-201, as last amended by Laws of Utah 2012, Chapter 360 and last amended by
29     Coordination Clause, Laws of Utah 2012, Chapter 360
30          19-1-301, as last amended by Laws of Utah 2012, Chapters 333, 360 and last amended
31     by Coordination Clause, Laws of Utah 2012, Chapter 360
32          19-1-301.5, as enacted by Laws of Utah 2012, Chapter 333 and last amended by
33     Coordination Clause, Laws of Utah 2012, Chapter 360
34          19-2-108, as last amended by Laws of Utah 2012, Chapters 333 and 360
35          19-3-104, as last amended by Laws of Utah 2012, Chapter 360
36          63G-4-102, as last amended by Laws of Utah 2012, Chapter 333
37          78A-4-103, as last amended by Laws of Utah 2012, Chapter 333
38     

39     Be it enacted by the Legislature of the state of Utah:
40          Section 1. Section 19-1-201 is amended to read:
41          19-1-201. Powers and duties of department -- Rulemaking authority.
42          (1) The department shall:
43          (a) enter into cooperative agreements with the Department of Health to delineate
44     specific responsibilities to assure that assessment and management of risk to human health
45     from the environment are properly administered;
46          (b) consult with the Department of Health and enter into cooperative agreements, as
47     needed, to ensure efficient use of resources and effective response to potential health and safety
48     threats from the environment, and to prevent gaps in protection from potential risks from the
49     environment to specific individuals or population groups;
50          (c) coordinate implementation of environmental programs to maximize efficient use of
51     resources by developing, with local health departments, a Comprehensive Environmental
52     Service Delivery Plan that:
53          (i) recognizes that the department and local health departments are the foundation for
54     providing environmental health programs in the state;
55          (ii) delineates the responsibilities of the department and each local health department
56     for the efficient delivery of environmental programs using federal, state, and local authorities,
57     responsibilities, and resources;
58          (iii) provides for the delegation of authority and pass through of funding to local health

59     departments for environmental programs, to the extent allowed by applicable law, identified in
60     the plan, and requested by the local health department; and
61          (iv) is reviewed and updated annually; and
62          (d) make rules, in accordance with Title 63G, Chapter 3, Utah Administrative
63     Rulemaking Act, as follows:
64          (i) for a board created in Section 19-1-106, rules regarding:
65          (A) board meeting attendance; and
66          (B) conflicts of interest procedures; and
67          (ii) procedural rules that govern:
68          (A) an adjudicative proceeding, consistent with Section 19-1-301; and
69          (B) a [permit review] special adjudicative proceeding, consistent with Section
70     19-1-301.5.
71          (2) The department may:
72          (a) investigate matters affecting the environment;
73          (b) investigate and control matters affecting the public health when caused by
74     environmental hazards;
75          (c) prepare, publish, and disseminate information to inform the public concerning
76     issues involving environmental quality;
77          (d) establish and operate programs, as authorized by this title, necessary for protection
78     of the environment and public health from environmental hazards;
79          (e) use local health departments in the delivery of environmental health programs to
80     the extent provided by law;
81          (f) enter into contracts with local health departments or others to meet responsibilities
82     established under this title;
83          (g) acquire real and personal property by purchase, gift, devise, and other lawful
84     means;
85          (h) prepare and submit to the governor a proposed budget to be included in the budget
86     submitted by the governor to the Legislature;
87          (i) (i) establish a schedule of fees that may be assessed for actions and services of the
88     department according to the procedures and requirements of Section 63J-1-504; and
89          (ii) in accordance with Section 63J-1-504, all fees shall be reasonable, fair, and reflect

90     the cost of services provided;
91          (j) prescribe by rule reasonable requirements not inconsistent with law relating to
92     environmental quality for local health departments;
93          (k) perform the administrative functions of the boards established by Section 19-1-106,
94     including the acceptance and administration of grants from the federal government and from
95     other sources, public or private, to carry out the board's functions;
96          (l) upon the request of any board or a division director, provide professional, technical,
97     and clerical staff and field and laboratory services, the extent of which are limited by the funds
98     available to the department for the staff and services; and
99          (m) establish a supplementary fee, not subject to Section 63J-1-504, to provide service
100     that the person paying the fee agrees by contract to be charged for the service in order to
101     efficiently utilize department resources, protect department permitting processes, address
102     extraordinary or unanticipated stress on permitting processes, or make use of specialized
103     expertise.
104          (3) In providing service under Subsection (2)(m), the department may not provide
105     service in a manner that impairs any other person's service from the department.
106          Section 2. Section 19-1-301 is amended to read:
107          19-1-301. Adjudicative proceedings.
108          (1) As used in this section, "dispositive action" means a final agency action that:
109          (a) the executive director takes following an adjudicative proceeding on a request for
110     agency action; and
111          (b) is subject to judicial review under Section 63G-4-403.
112          (2) This section governs adjudicative proceedings that are not [permit review] special
113     adjudicative proceedings as defined in Section 19-1-301.5.
114          (3) (a) The department and its boards shall comply with the procedures and
115     requirements of Title 63G, Chapter 4, Administrative Procedures Act.
116          (b) The procedures for an adjudicative proceeding conducted by an administrative law
117     judge are governed by:
118          (i) Title 63G, Chapter 4, Administrative Procedures Act;
119          (ii) this title;
120          (iii) rules adopted by the department under:

121          (A) Subsection 63G-4-102(6); or
122          (B) this title; and
123          (iv) the Utah Rules of Civil Procedure, in the absence of a procedure established under
124     Subsection (3)(b)(i), (ii), or (iii).
125          (4) Except as provided in Section 19-2-113, an administrative law judge shall hear a
126     party's request for agency action.
127          (5) The executive director shall appoint an administrative law judge who:
128          (a) is a member in good standing of the Utah State Bar;
129          (b) has a minimum of:
130          (i) 10 years of experience practicing law; and
131          (ii) five years of experience practicing in the field of:
132          (A) environmental compliance;
133          (B) natural resources;
134          (C) regulation by an administrative agency; or
135          (D) a field related to a field listed in Subsections (5)(b)(ii)(A) through (C); and
136          (c) has a working knowledge of the federal laws and regulations and state statutes and
137     rules applicable to a request for agency action.
138          (6) In appointing an administrative law judge who meets the qualifications described in
139     Subsection (5), the executive director may:
140          (a) compile a list of persons who may be engaged as an administrative law judge pro
141     tempore by mutual consent of the parties to an adjudicative proceeding;
142          (b) appoint an assistant attorney general as an administrative law judge pro tempore; or
143          (c) (i) appoint an administrative law judge as an employee of the department; and
144          (ii) assign the administrative law judge responsibilities in addition to conducting an
145     adjudicative proceeding.
146          (7) (a) An administrative law judge:
147          (i) shall conduct an adjudicative proceeding;
148          (ii) may take any action that is not a dispositive action; and
149          (iii) shall submit to the executive director a proposed dispositive action, including:
150          (A) written findings of fact;
151          (B) written conclusions of law; and

152          (C) a recommended order.
153          (b) The executive director may:
154          (i) approve, approve with modifications, or disapprove a proposed dispositive action
155     submitted to the executive director under Subsection (7)(a); or
156          (ii) return the proposed dispositive action to the administrative law judge for further
157     action as directed.
158          (c) In making a decision regarding a dispositive action, the executive director may seek
159     the advice of, and consult with:
160          (i) the assistant attorney general assigned to the department; or
161          (ii) a special master who:
162          (A) is appointed by the executive director; and
163          (B) is an expert in the subject matter of the proposed dispositive action.
164          (d) The executive director shall base a final dispositive action on the record of the
165     proceeding before the administrative law judge.
166          (8) To conduct an adjudicative proceeding, an administrative law judge may:
167          (a) compel:
168          (i) the attendance of a witness; and
169          (ii) the production of a document or other evidence;
170          (b) administer an oath;
171          (c) take testimony; and
172          (d) receive evidence as necessary.
173          (9) A party may appear before an administrative law judge in person, through an agent
174     or employee, or as provided by department rule.
175          (10) (a) An administrative law judge or the executive director may not participate in an
176     ex parte communication with a party to an adjudicative proceeding regarding the merits of the
177     adjudicative proceeding unless notice and an opportunity to be heard are afforded to all parties.
178          (b) If an administrative law judge or the executive director receives an ex parte
179     communication, the person who receives the ex parte communication shall place the
180     communication into the public record of the proceedings and afford all parties an opportunity
181     to comment on the information.
182          (11) Nothing in this section limits a party's right to an adjudicative proceeding under

183     Title 63G, Chapter 4, Administrative Procedures Act.
184          Section 3. Section 19-1-301.5 is amended to read:
185          19-1-301.5. Permit review and financial assurance determination special
186     adjudicative proceedings.
187          (1) As used in this section:
188          (a) "Dispositive action" means a final agency action that:
189          (i) the executive director takes as part of a [permit review] special adjudicative
190     proceeding; and
191          (ii) is subject to judicial review, in accordance with Subsection (14).
192          (b) "Dispositive motion" means a motion that is equivalent to:
193          (i) a motion to dismiss under Utah Rules of Civil Procedure, Rule 12(b)(6);
194          (ii) a motion for judgment on the pleadings under Utah Rules of Civil Procedure, Rule
195     12(c); or
196          (iii) a motion for summary judgment under Utah Rules of Civil Procedure, Rule 56.
197          (c) "Financial assurance determination" means a decision on whether a facility, site,
198     plan, party, broker, owner, operator, generator, or permittee has met financial assurance or
199     financial responsibility requirements as determined by the director of the:
200          (i) Division of Radiation Control under Subsection 19-3-104(12); or
201          (ii) Division of Solid and Hazardous Waste under Subsection 19-6-108(9)(c).
202          [(c)] (d) "Party" means:
203          (i) the director who issued the permit order or financial assurance determination that is
204     being challenged in the [permit review] special adjudicative proceeding under this section;
205          (ii) the permittee;
206          (iii) the person who applied for the permit, if the permit was denied; [or]
207          (iv) the person who is subject to a financial assurance determination; or
208          [(iv)] (v) a person granted intervention by the administrative law judge.
209          [(d)] (e) "Permit" means any of the following issued under this title:
210          (i) a permit;
211          (ii) a plan;
212          (iii) a license;
213          (iv) an approval order; or

214          (v) another administrative authorization made by a director.
215          [(e)] (f) (i) "Permit order" means an order issued by a director that:
216          (A) approves a permit;
217          (B) renews a permit;
218          (C) denies a permit;
219          (D) modifies or amends a permit; or
220          (E) revokes and reissues a permit.
221          (ii) "Permit order" does not include an order terminating a permit.
222          [(f) "Permit review adjudicative proceeding" means a proceeding to resolve a challenge
223     to a permit order.]
224          (g) "Special adjudicative proceeding" means a proceeding under this section to resolve
225     a challenge to a:
226          (i) permit order; or
227          (ii) financial assurance determination.
228          (2) This section governs [permit review] special adjudicative proceedings.
229          (3) Except as expressly provided in this section, the provisions of Title 63G, Chapter 4,
230     Administrative Procedures Act, do not apply to a [permit review] special adjudicative
231     proceeding under this section.
232          (4) If a public comment period was provided during the permit application process or
233     the financial assurance determination process, a person who challenges [a permit order,
234     including the permit applicant,] an order, application, or determination may only raise an issue
235     or argument during the [permit review] special adjudicative proceeding that:
236          (a) the person raised during the public comment period; and
237          (b) was supported with sufficient information or documentation to enable the director
238     to fully consider the substance and significance of the issue.
239          (5) The executive director shall appoint an administrative law judge, in accordance
240     with Subsections 19-1-301(5) and (6), to conduct a [permit review] special adjudicative
241     proceeding under this section.
242          (6) (a) Only the following may file a request for agency action seeking review of a
243     permit order or a financial assurance determination:
244          (i) a party; or

245          (ii) a person who is seeking to intervene under Subsection (7).
246          (b) A person who files a request for agency action seeking review of a permit order or a
247     financial assurance determination shall file the request:
248          (i) within 30 days after the day on which the permit order or the financial assurance
249     determination is issued; and
250          (ii) in accordance with Subsections 63G-4-201(3)(a) through (c).
251          (c) A person may not raise an issue or argument in a request for agency action unless
252     the issue or argument:
253          (i) was preserved in accordance with Subsection (4); or
254          (ii) was not reasonably ascertainable before or during the public comment period.
255          (d) The department may, in accordance with Title 63G, Chapter 3, Utah Administrative
256     Rulemaking Act, make rules allowing the extension of the filing deadline described in
257     Subsection (6)(b)(i).
258          (7) (a) A person who is not a party may not participate in a [permit review] special
259     adjudicative proceeding under this section unless the person is granted the right to intervene
260     under this Subsection (7).
261          (b) A person who seeks to intervene in a [permit review] special adjudicative
262     proceeding under this section shall, within 30 days after the day on which the permit order or
263     the financial assurance determination being challenged was issued, file:
264          (i) a petition to intervene that:
265          (A) meets the requirements of Subsection 63G-4-207(1); and
266          (B) demonstrates that the person is entitled to intervention under Subsection (7)(c)(ii);
267     and
268          (ii) a timely request for agency action.
269          (c) An administrative law judge shall grant a petition to intervene in a [permit review]
270     special adjudicative proceeding, if:
271          (i) the petition to intervene is timely filed; and
272          (ii) the petitioner:
273          (A) demonstrates that the petitioner's legal interests may be substantially affected by
274     the [permit review] special adjudicative proceeding;
275          (B) demonstrates that the interests of justice and the orderly and prompt conduct of the

276     [permit review] special adjudicative proceeding will not be materially impaired by allowing the
277     intervention; and
278          (C) in the petitioner's request for agency action, raises issues or arguments that are
279     preserved in accordance with Subsection (4).
280          (d) An administrative law judge:
281          (i) shall issue an order granting or denying a petition to intervene in accordance with
282     Subsection 63G-4-207(3)(a); and
283          (ii) may impose conditions on intervenors as described in Subsections 63G-4-207(3)(b)
284     and (c).
285          (e) The department may, in accordance with Title 63G, Chapter 3, Utah Administrative
286     Rulemaking Act, make rules allowing the extension of the filing deadline described in
287     Subsection (7)(b).
288          (8) (a) An administrative law judge shall conduct a [permit review] special
289     adjudicative proceeding based only on the administrative record and not as a trial de novo.
290          (b) To the extent relative to the issues and arguments raised in the request for agency
291     action, the administrative record shall consist of the following items, if they exist:
292          (i) (A) for a permit review, the permit application, draft permit, and final permit; or
293          (B) for a financial assurance determination review, the proposed financial assurance
294     determination from the owner or operator of the facility, the draft financial assurance
295     determination, and the final financial assurance determination;
296          (ii) each statement of basis, fact sheet, engineering review, or other substantive
297     explanation designated by the director as part of the basis for the decision relating to the permit
298     order or the financial assurance determination;
299          (iii) the notice and record of each public comment period;
300          (iv) the notice and record of each public hearing, including oral comments made during
301     the public hearing;
302          (v) written comments submitted during the public comment period;
303          (vi) responses to comments that are designated by the director as part of the basis for
304     the decision relating to the permit order or the financial assurance determination;
305          (vii) any information that is:
306          (A) requested by and submitted to the director; and

307          (B) designated by the director as part of the basis for the decision relating to the permit
308     order or the financial assurance determination;
309          (viii) any additional information specified by rule;
310          (ix) any additional documents agreed to by the parties; and
311          (x) information supplementing the record under Subsection (8)(c).
312          (c) (i) There is a rebuttable presumption against supplementing the record.
313          (ii) A party may move to supplement the record described in Subsection (8)(b) with
314     technical or factual information.
315          (iii) The administrative law judge may grant a motion to supplement the record
316     described in Subsection (8)(b) with technical or factual information if the moving party proves
317     that:
318          (A) good cause exists for supplementing the record;
319          (B) supplementing the record is in the interest of justice; and
320          (C) supplementing the record is necessary for resolution of the issues.
321          (iv) The administrative law judge may supplement the record with technical or factual
322     information on the administrative law judge's own motion if the administrative law judge
323     determines that adequate grounds exist to supplement the record under Subsections
324     (8)(c)(iii)(A) through (C).
325          (v) In supplementing the record with testimonial evidence, the administrative law judge
326     may administer an oath or take testimony as necessary.
327          (vi) The department may, in accordance with Title 63G, Chapter 3, Utah
328     Administrative Rulemaking Act, make rules permitting further supplementation of the record.
329          (9) (a) The administrative law judge shall review and respond to a request for agency
330     action in accordance with Subsections 63G-4-201(3)(d) and (e), following the relevant
331     procedures for formal adjudicative proceedings.
332          (b) The administrative law judge shall require the parties to file responsive pleadings in
333     accordance with Section 63G-4-204.
334          (c) If an administrative law judge enters an order of default against a party, the
335     administrative law judge shall enter the order of default in accordance with Section 63G-4-209,
336     following the relevant procedures for formal adjudicative proceedings.
337          (d) The administrative law judge, in conducting a [permit review] special adjudicative

338     proceeding:
339          (i) may not participate in an ex parte communication with a party to the [permit
340     review] special adjudicative proceeding regarding the merits of the [permit review] special
341     adjudicative proceeding unless notice and an opportunity to be heard are afforded to all parties;
342     and
343          (ii) shall, upon receiving an ex parte communication, place the communication in the
344     public record of the proceeding and afford all parties an opportunity to comment on the
345     information.
346          (e) In conducting a [permit review] special adjudicative proceeding, the administrative
347     law judge may take judicial notice of matters not in the administrative record, in accordance
348     with Utah Rules of Evidence, Rule 201.
349          (f) An administrative law judge may take any action in a [permit review] special
350     adjudicative proceeding that is not a dispositive action.
351          (10) (a) A person who files a request for agency action has the burden of demonstrating
352     that an issue or argument raised in the request for agency action has been preserved in
353     accordance with Subsection (4).
354          (b) The administrative law judge shall dismiss, with prejudice, any issue or argument
355     raised in a request for agency action that has not been preserved in accordance with Subsection
356     (4).
357          (11) In response to a dispositive motion, the administrative law judge may submit a
358     proposed dispositive action to the executive director recommending full or partial resolution of
359     the [permit review] special adjudicative proceeding, that includes:
360          (a) written findings of fact;
361          (b) written conclusions of law; and
362          (c) a recommended order.
363          (12) For each issue or argument that is not dismissed or otherwise resolved under
364     Subsection (10)(b) or (11), the administrative law judge shall:
365          (a) provide the parties an opportunity for briefing and oral argument;
366          (b) conduct a review of the director's order or determination, based on the record
367     described in Subsections (8)(b), (8)(c), and (9)(e); and
368          (c) submit to the executive director a proposed dispositive action, that includes:

369          (i) written findings of fact;
370          (ii) written conclusions of law; and
371          (iii) a recommended order.
372          (13) (a) When the administrative law judge submits a proposed dispositive action to
373     the executive director, the executive director may:
374          (i) adopt, adopt with modifications, or reject the proposed dispositive action; or
375          (ii) return the proposed dispositive action to the administrative law judge for further
376     action as directed.
377          (b) On review of a proposed dispositive action, the executive director shall uphold all
378     factual, technical, and scientific agency determinations that are supported by substantial
379     evidence taken from the record as a whole.
380          (c) (i) The executive director may not participate in an ex parte communication with a
381     party to the [permit review] special adjudicative proceeding regarding the merits of the [permit
382     review] special adjudicative proceeding unless notice and an opportunity to be heard are
383     afforded to all parties.
384          (ii) Upon receiving an ex parte communication, the executive director shall place the
385     communication in the public record of the proceeding and afford all parties an opportunity to
386     comment on the information.
387          (d) In reviewing a proposed dispositive action during a [permit review] special
388     adjudicative proceeding, the executive director may take judicial notice of matters not in the
389     record, in accordance with Utah Rules of Evidence, Rule 201.
390          (e) The executive director may use the executive director's technical expertise in
391     making a determination.
392          (14) (a) A party may seek judicial review in the Utah Court of Appeals of a dispositive
393     action in a [permit review] special adjudicative proceeding, in accordance with Sections
394     63G-4-401, 63G-4-403, and 63G-4-405.
395          (b) An appellate court shall limit its review of a dispositive action of a [permit review]
396     special adjudicative proceeding under this section to:
397          (i) the record described in Subsections (8)(b), (8)(c), (9)(e), and (13)(d); and
398          (ii) the record made by the administrative law judge and the executive director during
399     the [permit review] special adjudicative proceeding.

400          (c) During judicial review of a dispositive action, the appellate court shall:
401          (i) review all agency determinations in accordance with Subsection 63G-4-403(4),
402     recognizing that the agency has been granted substantial discretion to interpret its governing
403     statutes and rules; and
404          (ii) uphold all factual, technical, and scientific agency determinations that are
405     supported by substantial evidence viewed in light of the record as a whole.
406          (15) (a) The filing of a request for agency action does not:
407          (i) stay a permit order or a financial assurance determination; or
408          (ii) delay the effective date of a permit order or a financial assurance determination.
409          (b) A permit order or a financial assurance determination may not be stayed or delayed
410     unless a stay is granted under this Subsection (15).
411          (c) The administrative law judge shall:
412          (i) consider a party's motion to stay a permit order or a financial assurance
413     determination during a [permit review] special adjudicative proceeding; and
414          (ii) submit a proposed determination on the stay to the executive director.
415          (d) The administrative law judge may not recommend to the executive director a stay
416     of a permit order or a financial assurance determination, or a portion of a permit order or a
417     portion of a financial assurance determination, unless:
418          (i) all parties agree to the stay; or
419          (ii) the party seeking the stay demonstrates that:
420          (A) the party seeking the stay will suffer irreparable harm unless the stay is issued;
421          (B) the threatened injury to the party seeking the stay outweighs whatever damage the
422     proposed stay is likely to cause the party restrained or enjoined;
423          (C) the stay, if issued, would not be adverse to the public interest; and
424          (D) there is a substantial likelihood that the party seeking the stay will prevail on the
425     merits of the underlying claim, or the case presents serious issues on the merits, which should
426     be the subject of further adjudication.
427          (e) A party may appeal the executive director's decision regarding a stay of a permit
428     order or a financial assurance determination to the Utah Court of Appeals, in accordance with
429     Section 78A-4-103.
430          Section 4. Section 19-2-108 is amended to read:

431          19-2-108. Notice of construction or modification of installations required --
432     Authority of director to prohibit construction -- Hearings -- Limitations on authority of
433     director -- Inspections authorized.
434          (1) Notice shall be given to the director by any person planning to construct a new
435     installation which will or might reasonably be expected to be a source or indirect source of air
436     pollution or to make modifications to an existing installation which will or might reasonably be
437     expected to increase the amount of or change the character or effect of air contaminants
438     discharged, so that the installation may be expected to be a source or indirect source of air
439     pollution, or by any person planning to install an air cleaning device or other equipment
440     intended to control emission of air contaminants.
441          (2) (a) (i) The director may require, as a condition precedent to the construction,
442     modification, installation, or establishment of the air contaminant source or indirect source, the
443     submission of plans, specifications, and other information as he finds necessary to determine
444     whether the proposed construction, modification, installation, or establishment will be in
445     accord with applicable rules in force under this chapter.
446          (ii) Plan approval for an indirect source may be delegated by the director to a local
447     authority when requested and upon assurance that the local authority has and will maintain
448     sufficient expertise to insure that the planned installation will meet the requirements
449     established by law.
450          (b) If within 90 days after the receipt of plans, specifications, or other information
451     required under this subsection, the director determines that the proposed construction,
452     installation, or establishment or any part of it will not be in accord with the requirements of this
453     chapter or applicable rules or that further time, not exceeding three extensions of 30 days each,
454     is required by the director to adequately review the plans, specifications, or other information,
455     he shall issue an order prohibiting the construction, installation, or establishment of the air
456     contaminant source or sources in whole or in part.
457          (3) In addition to any other remedies but prior to invoking any such other remedies, any
458     person aggrieved by the issuance of an order either granting or denying a request for the
459     construction of a new installation, [and prior to invoking any such other remedies] shall, upon
460     request, in accordance with the rules of the department, be entitled to a [permit review] special
461     adjudicative proceeding conducted by an administrative law judge as provided by Section

462     19-1-301.5.
463          (4) Any features, machines, and devices constituting parts of or called for by plans,
464     specifications, or other information submitted under Subsection (1) shall be maintained in good
465     working order.
466          (5) This section does not authorize the director to require the use of machinery,
467     devices, or equipment from a particular supplier or produced by a particular manufacturer if the
468     required performance standards may be met by machinery, devices, or equipment otherwise
469     available.
470          (6) (a) Any authorized officer, employee, or representative of the director may enter
471     and inspect any property, premise, or place on or at which an air contaminant source is located
472     or is being constructed, modified, installed, or established at any reasonable time for the
473     purpose of ascertaining the state of compliance with this chapter and the rules adopted under it.
474          (b) (i) A person may not refuse entry or access to any authorized representative of the
475     director who requests entry for purposes of inspection and who presents appropriate
476     credentials.
477          (ii) A person may not obstruct, hamper, or interfere with any inspection.
478          (c) If requested, the owner or operator of the premises shall receive a report setting
479     forth all facts found which relate to compliance status.
480          Section 5. Section 19-3-104 is amended to read:
481          19-3-104. Registration and licensing of radiation sources by department --
482     Assessment of fees -- Rulemaking authority and procedure -- Siting criteria -- Indirect
483     and direct costs.
484          (1) As used in this section:
485          (a) "Decommissioning" includes financial assurance.
486          (b) "Source material" and "byproduct material" have the same definitions as in the
487     Atomic Energy Act of 1954, 42 U.S.C.[A] Sec. 2014, [Atomic Energy Act of 1954,] as
488     amended.
489          (2) The division may require the registration or licensing of radiation sources that
490     constitute a significant health hazard.
491          (3) All sources of ionizing radiation, including ionizing radiation producing machines,
492     shall be registered or licensed by the department.

493          (4) [The] In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking
494     Act, the board may make rules:
495          (a) necessary for controlling exposure to sources of radiation that constitute a
496     significant health hazard;
497          (b) to meet the requirements of federal law relating to radiation control to ensure the
498     radiation control program under this part is qualified to maintain primacy from the federal
499     government;
500          (c) to establish:
501          (i) board accreditation requirements and procedures for mammography facilities; and
502          (ii) certification procedure and qualifications for persons who survey mammography
503     equipment and oversee quality assurance practices at mammography facilities; and
504          (d) as necessary regarding the possession, use, transfer, or delivery of source and
505     byproduct material and the disposal of byproduct material to establish requirements for:
506          (i) the licensing, operation, decontamination, and decommissioning, including financial
507     assurances; and
508          (ii) the reclamation of sites, structures, and equipment used in conjunction with the
509     activities described in this Subsection (4).
510          (5) (a) On and after January 1, 2003, a fee is imposed for the regulation of source and
511     byproduct material and the disposal of byproduct material at uranium mills or commercial
512     waste facilities, as provided in this Subsection (5).
513          (b) On and after January 1, 2003, through March 30, 2003:
514          (i) $6,667 per month for uranium mills or commercial sites disposing of or
515     reprocessing byproduct material; and
516          (ii) $4,167 per month for those uranium mills the director has determined are on
517     standby status.
518          (c) On and after March 31, 2003, through June 30, 2003, the same fees as in
519     Subsection (5)(b) apply, but only if the federal Nuclear Regulatory Commission grants to Utah
520     an amendment for agreement state status for uranium recovery regulation on or before March
521     30, 2003.
522          (d) If the Nuclear Regulatory Commission does not grant the amendment for state
523     agreement status on or before March 30, 2003, fees under Subsection (5)(e) do not apply and

524     are not required to be paid until on and after the later date of:
525          (i) October 1, 2003; or
526          (ii) the date the Nuclear Regulatory Commission grants to Utah an amendment for
527     agreement state status for uranium recovery regulation.
528          (e) For the payment periods beginning on and after July 1, 2003, the department shall
529     establish the fees required under Subsection (5)(a) under Section 63J-1-504, subject to the
530     restrictions under Subsection (5)(d).
531          (f) The division shall deposit fees it receives under this Subsection (5) into the
532     Environmental Quality Restricted Account created in Section 19-1-108.
533          (6) (a) The division shall assess fees for registration, licensing, and inspection of
534     radiation sources under this section.
535          (b) The division shall comply with the requirements of Section 63J-1-504 in assessing
536     fees for licensure and registration.
537          (7) The division shall coordinate its activities with the Department of Health rules
538     made under Section 26-21a-203.
539          (8) (a) Except as provided in Subsection (9), and in accordance with Title 63G,
540     Chapter 3, Utah Administrative Rulemaking Act, the board may not adopt rules, for the
541     purpose of the state assuming responsibilities from the United States Nuclear Regulatory
542     Commission with respect to regulation of sources of ionizing radiation, that are more stringent
543     than the corresponding federal regulations which address the same circumstances.
544          (b) In adopting those rules, the board may incorporate corresponding federal
545     regulations by reference.
546          (9) (a) The board may adopt rules more stringent than corresponding federal
547     regulations for the purpose described in Subsection (8) only if it makes a written finding after
548     public comment and hearing and based on evidence in the record that corresponding federal
549     regulations are not adequate to protect public health and the environment of the state.
550          (b) Those findings shall be accompanied by an opinion referring to and evaluating the
551     public health and environmental information and studies contained in the record which form
552     the basis for the board's conclusion.
553          (10) (a) [The] In accordance with Title 63G, Chapter 3, Utah Administrative
554     Rulemaking Act, the board shall by rule:

555          (i) authorize independent qualified experts to conduct inspections required under this
556     chapter of x-ray facilities registered with the division; and
557          (ii) establish qualifications and certification procedures necessary for independent
558     experts to conduct these inspections.
559          (b) Independent experts under this Subsection (10) are not considered employees or
560     representatives of the division or the state when conducting the inspections.
561          (11) (a) [The] In accordance with Title 63G, Chapter 3, Utah Administrative
562     Rulemaking Act, the board may by rule establish criteria for siting commercial low-level
563     radioactive waste treatment or disposal facilities, subject to the prohibition imposed by Section
564     19-3-103.7.
565          (b) Subject to Subsection 19-3-105(10), any facility under Subsection (11)(a) for which
566     a radioactive material license is required by this section shall comply with those criteria.
567          (c) Subject to Subsection 19-3-105(10), a facility may not receive a radioactive
568     material license until siting criteria have been established by the board. The criteria also apply
569     to facilities that have applied for but not received a radioactive material license.
570          (12) [The board shall by rule establish] In accordance with Title 63G, Chapter 3, Utah
571     Administrative Rulemaking Act, the board shall make rules that establish financial assurance
572     requirements for closure and postclosure care of radioactive waste land disposal facilities[,
573     taking into account existing financial assurance requirements].
574          (13) The rules described in Subsection (12) shall include the following provisions:
575          (a) the financial assurance shall be based on an annual calculation and shall include the
576     costs of closure and postclosure care of radioactive waste land disposal facilities in all areas
577     subject to the licensed or permitted portions of the facility;
578          (b) financial assurance for closing the areas within the disposal embankments shall be
579     limited to the cost of closing areas where waste has been disposed; and
580          (c) at the option of the licensee or permittee, the financial assurance requirements shall
581     be based on:
582          (i) an annual calculation using the current edition of RS Means Facilities Construction
583     Cost Data or using a process, including an indirect cost multiplier, previously agreed to
584     between the licensee or permittee and the director; or
585          (ii) (A) for an initial financial assurance determination and for each financial assurance

586     determination every five years thereafter, a competitive site-specific bid for closure and
587     postclosure care of the facility at least once every five years; and
588          (B) for each year between a financial assurance determination as described in
589     Subsection (13)(c)(ii)(A), an annual inflation adjustment to the financial assurance
590     determination using the Gross Domestic Product Implicit Price Deflator of the Bureau of
591     Economic Analysis, United States Department of Commerce, calculated by dividing the latest
592     annual deflator by the deflator for the previous year.
593          (14) Subject to the financial assurance requirements described in Subsections (12) and
594     (13), if the director and the licensee or permittee do not agree on a final financial assurance
595     determination made by the director, the licensee or permittee may appeal the determination in:
596          (a) an arbitration proceeding governed by Title 78B, Chapter 11, Utah Uniform
597     Arbitration Act, with the costs of the arbitration to be split equally between the licensee or
598     permittee and the division, if both the licensee or permittee and the director agree in writing to
599     arbitration; or
600          (b) a special adjudicative proceeding under Section 19-1-301.5.
601          Section 6. Section 63G-4-102 is amended to read:
602          63G-4-102. Scope and applicability of chapter.
603          (1) Except as set forth in Subsection (2), and except as otherwise provided by a statute
604     superseding provisions of this chapter by explicit reference to this chapter, the provisions of
605     this chapter apply to every agency of the state and govern:
606          (a) state agency action that determines the legal rights, duties, privileges, immunities,
607     or other legal interests of an identifiable person, including agency action to grant, deny, revoke,
608     suspend, modify, annul, withdraw, or amend an authority, right, or license; and
609          (b) judicial review of the action.
610          (2) This chapter does not govern:
611          (a) the procedure for making agency rules, or judicial review of the procedure or rules;
612          (b) the issuance of a notice of a deficiency in the payment of a tax, the decision to
613     waive a penalty or interest on taxes, the imposition of and penalty or interest on taxes, or the
614     issuance of a tax assessment, except that this chapter governs an agency action commenced by
615     a taxpayer or by another person authorized by law to contest the validity or correctness of the
616     action;

617          (c) state agency action relating to extradition, to the granting of a pardon or parole, a
618     commutation or termination of a sentence, or to the rescission, termination, or revocation of
619     parole or probation, to the discipline of, resolution of a grievance of, supervision of,
620     confinement of, or the treatment of an inmate or resident of a correctional facility, the Utah
621     State Hospital, the Utah State Developmental Center, or a person in the custody or jurisdiction
622     of the Division of Substance Abuse and Mental Health, or a person on probation or parole, or
623     judicial review of the action;
624          (d) state agency action to evaluate, discipline, employ, transfer, reassign, or promote a
625     student or teacher in a school or educational institution, or judicial review of the action;
626          (e) an application for employment and internal personnel action within an agency
627     concerning its own employees, or judicial review of the action;
628          (f) the issuance of a citation or assessment under Title 34A, Chapter 6, Utah
629     Occupational Safety and Health Act, and Title 58, Occupations and Professions, except that
630     this chapter governs an agency action commenced by the employer, licensee, or other person
631     authorized by law to contest the validity or correctness of the citation or assessment;
632          (g) state agency action relating to management of state funds, the management and
633     disposal of school and institutional trust land assets, and contracts for the purchase or sale of
634     products, real property, supplies, goods, or services by or for the state, or by or for an agency of
635     the state, except as provided in those contracts, or judicial review of the action;
636          (h) state agency action under Title 7, Chapter 1, Part 3, Powers and Duties of
637     Commissioner of Financial Institutions, Title 7, Chapter 2, Possession of Depository Institution
638     by Commissioner, Title 7, Chapter 19, Acquisition of Failing Depository Institutions or
639     Holding Companies, and Title 63G, Chapter 7, Governmental Immunity Act of Utah, or
640     judicial review of the action;
641          (i) the initial determination of a person's eligibility for unemployment benefits, the
642     initial determination of a person's eligibility for benefits under Title 34A, Chapter 2, Workers'
643     Compensation Act, and Title 34A, Chapter 3, Utah Occupational Disease Act, or the initial
644     determination of a person's unemployment tax liability;
645          (j) state agency action relating to the distribution or award of a monetary grant to or
646     between governmental units, or for research, development, or the arts, or judicial review of the
647     action;

648          (k) the issuance of a notice of violation or order under Title 26, Chapter 8a, Utah
649     Emergency Medical Services System Act, Title 19, Chapter 2, Air Conservation Act, Title 19,
650     Chapter 3, Radiation Control Act, Title 19, Chapter 4, Safe Drinking Water Act, Title 19,
651     Chapter 5, Water Quality Act, Title 19, Chapter 6, Part 1, Solid and Hazardous Waste Act,
652     Title 19, Chapter 6, Part 4, Underground Storage Tank Act, or Title 19, Chapter 6, Part 7, Used
653     Oil Management Act, or Title 19, Chapter 6, Part 10, Mercury Switch Removal Act, except
654     that this chapter governs an agency action commenced by a person authorized by law to contest
655     the validity or correctness of the notice or order;
656          (l) state agency action, to the extent required by federal statute or regulation, to be
657     conducted according to federal procedures;
658          (m) the initial determination of a person's eligibility for government or public
659     assistance benefits;
660          (n) state agency action relating to wildlife licenses, permits, tags, and certificates of
661     registration;
662          (o) a license for use of state recreational facilities;
663          (p) state agency action under Title 63G, Chapter 2, Government Records Access and
664     Management Act, except as provided in Section 63G-2-603;
665          (q) state agency action relating to the collection of water commissioner fees and
666     delinquency penalties, or judicial review of the action;
667          (r) state agency action relating to the installation, maintenance, and repair of headgates,
668     caps, values, or other water controlling works and weirs, flumes, meters, or other water
669     measuring devices, or judicial review of the action;
670          (s) the issuance and enforcement of an initial order under Section 73-2-25;
671          (t) (i) a hearing conducted by the Division of Securities under Section 61-1-11.1; and
672          (ii) an action taken by the Division of Securities [pursuant to] under a hearing
673     conducted under Section 61-1-11.1, including a determination regarding the fairness of an
674     issuance or exchange of securities described in Subsection 61-1-11.1(1); and
675          (u) state agency action relating to water well driller licenses, water well drilling
676     permits, water well driller registration, or water well drilling construction standards, or judicial
677     review of the action.
678          (3) This chapter does not affect a legal remedy otherwise available to:

679          (a) compel an agency to take action; or
680          (b) challenge an agency's rule.
681          (4) This chapter does not preclude an agency, prior to the beginning of an adjudicative
682     proceeding, or the presiding officer during an adjudicative proceeding from:
683          (a) requesting or ordering a conference with parties and interested persons to:
684          (i) encourage settlement;
685          (ii) clarify the issues;
686          (iii) simplify the evidence;
687          (iv) facilitate discovery; or
688          (v) expedite the proceeding; or
689          (b) granting a timely motion to dismiss or for summary judgment if the requirements of
690     Rule 12(b) or Rule 56 of the Utah Rules of Civil Procedure are met by the moving party,
691     except to the extent that the requirements of those rules are modified by this chapter.
692          (5) (a) A declaratory proceeding authorized by Section 63G-4-503 is not governed by
693     this chapter, except as explicitly provided in that section.
694          (b) Judicial review of a declaratory proceeding authorized by Section 63G-4-503 is
695     governed by this chapter.
696          (6) This chapter does not preclude an agency from enacting a rule affecting or
697     governing an adjudicative proceeding or from following the rule, if the rule is enacted
698     according to the procedures outlined in Title 63G, Chapter 3, Utah Administrative Rulemaking
699     Act, and if the rule conforms to the requirements of this chapter.
700          (7) (a) If the attorney general issues a written determination that a provision of this
701     chapter would result in the denial of funds or services to an agency of the state from the federal
702     government, the applicability of the provision to that agency shall be suspended to the extent
703     necessary to prevent the denial.
704          (b) The attorney general shall report the suspension to the Legislature at its next
705     session.
706          (8) Nothing in this chapter may be interpreted to provide an independent basis for
707     jurisdiction to review final agency action.
708          (9) Nothing in this chapter may be interpreted to restrict a presiding officer, for good
709     cause shown, from lengthening or shortening a time period prescribed in this chapter, except

710     the time period established for judicial review.
711          (10) Notwithstanding any other provision of this section, this chapter does not apply to
712     a [permit review] special adjudicative proceeding, as defined in Section 19-1-301.5, except to
713     the extent expressly provided in Section 19-1-301.5.
714          Section 7. Section 78A-4-103 is amended to read:
715          78A-4-103. Court of Appeals jurisdiction.
716          (1) The Court of Appeals has jurisdiction to issue all extraordinary writs and to issue
717     all writs and process necessary:
718          (a) to carry into effect its judgments, orders, and decrees; or
719          (b) in aid of its jurisdiction.
720          (2) The Court of Appeals has appellate jurisdiction, including jurisdiction of
721     interlocutory appeals, over:
722          (a) (i) a final order or decree resulting from:
723          (A) a formal adjudicative proceeding of a state agency; or
724          (B) a [permit review] special adjudicative proceeding, as [defined] described in Section
725     19-1-301.5; or
726          (ii) an appeal from the district court review of an informal adjudicative proceeding of
727     an agency other than the following:
728          (A) the Public Service Commission;
729          (B) the State Tax Commission;
730          (C) the School and Institutional Trust Lands Board of Trustees;
731          (D) the Division of Forestry, Fire, and State Lands, for an action reviewed by the
732     executive director of the Department of Natural Resources;
733          (E) the Board of Oil, Gas, and Mining; or
734          (F) the state engineer;
735          (b) appeals from the district court review of:
736          (i) adjudicative proceedings of agencies of political subdivisions of the state or other
737     local agencies; and
738          (ii) a challenge to agency action under Section 63G-3-602;
739          (c) appeals from the juvenile courts;
740          (d) interlocutory appeals from any court of record in criminal cases, except those

741     involving a charge of a first degree or capital felony;
742          (e) appeals from a court of record in criminal cases, except those involving a
743     conviction or charge of a first degree felony or capital felony;
744          (f) appeals from orders on petitions for extraordinary writs sought by persons who are
745     incarcerated or serving any other criminal sentence, except petitions constituting a challenge to
746     a conviction of or the sentence for a first degree or capital felony;
747          (g) appeals from the orders on petitions for extraordinary writs challenging the
748     decisions of the Board of Pardons and Parole except in cases involving a first degree or capital
749     felony;
750          (h) appeals from district court involving domestic relations cases, including, but not
751     limited to, divorce, annulment, property division, child custody, support, parent-time,
752     visitation, adoption, and paternity;
753          (i) appeals from the Utah Military Court; and
754          (j) cases transferred to the Court of Appeals from the Supreme Court.
755          (3) The Court of Appeals upon its own motion only and by the vote of four judges of
756     the court may certify to the Supreme Court for original appellate review and determination any
757     matter over which the Court of Appeals has original appellate jurisdiction.
758          (4) The Court of Appeals shall comply with the requirements of Title 63G, Chapter 4,
759     Administrative Procedures Act, in its review of agency adjudicative proceedings.






Legislative Review Note
     as of 2-9-15 11:05 AM


Office of Legislative Research and General Counsel