Chief Sponsor: Michael K. McKell

House Sponsor: Brady Brammer


9     General Description:
10          This bill addresses adjudicative proceedings of the Department of Environmental
11     Quality.
12     Highlighted Provisions:
13          This bill:
14          ▸     modifies the criteria for appointing an administrative law judge; and
15          ▸     makes technical changes.
16     Money Appropriated in this Bill:
17          None
18     Other Special Clauses:
19          None
20     Utah Code Sections Affected:
21     AMENDS:
22          19-1-301, as last amended by Laws of Utah 2018, Chapter 281

24     Be it enacted by the Legislature of the state of Utah:
25          Section 1. Section 19-1-301 is amended to read:
26          19-1-301. Adjudicative proceedings.
27          (1) As used in this section, "dispositive action" means a final agency action that:

28          (a) the executive director takes following an adjudicative proceeding on a request for
29     agency action; and
30          (b) is subject to judicial review under Section 63G-4-403.
31          (2) This section governs adjudicative proceedings that are not special adjudicative
32     proceedings as defined in Section 19-1-301.5.
33          (3) (a) The department and its boards shall comply with the procedures and
34     requirements of Title 63G, Chapter 4, Administrative Procedures Act.
35          (b) The procedures for an adjudicative proceeding conducted by an administrative law
36     judge are governed by:
37          (i) Title 63G, Chapter 4, Administrative Procedures Act;
38          (ii) this title;
39          (iii) rules adopted by the department under:
40          (A) Subsection 63G-4-102(6); or
41          (B) this title; and
42          (iv) the Utah Rules of Civil Procedure, in the absence of a procedure established under
43     Subsection (3)(b)(i), (ii), or (iii).
44          (4) Except as provided in Section 19-2-113, an administrative law judge shall hear a
45     party's request for agency action.
46          (5) The executive director shall appoint an administrative law judge who:
47          [(a) is a member in good standing of the Utah State Bar;]
48          [(b)] (a) has a minimum of:
49          (i) 10 years of experience practicing law; and
50          (ii) five years of experience practicing in the field of:
51          (A) environmental compliance;
52          (B) natural resources;
53          (C) regulation by an administrative agency; or
54          (D) a field related to a field listed in Subsections [(5)(b)(ii)(A)] (5)(a)(ii)(A) through
55     (C); and
56          [(c)] (b) has a working knowledge of the federal laws and regulations and state statutes
57     and rules applicable to a request for agency action.
58          (6) In appointing an administrative law judge who meets the qualifications described in

59     Subsection (5), the executive director may:
60          (a) compile a list of persons who may be engaged as an administrative law judge pro
61     tempore by mutual consent of the parties to an adjudicative proceeding;
62          (b) appoint an assistant attorney general as an administrative law judge pro tempore; or
63          (c) (i) appoint an administrative law judge as an employee of the department; and
64          (ii) assign the administrative law judge responsibilities in addition to conducting an
65     adjudicative proceeding.
66          (7) (a) An administrative law judge:
67          (i) shall conduct an adjudicative proceeding;
68          (ii) may take any action that is not a dispositive action; and
69          (iii) shall submit to the executive director a proposed dispositive action, including:
70          (A) written findings of fact;
71          (B) written conclusions of law; and
72          (C) a recommended order.
73          (b) The executive director may:
74          (i) approve, approve with modifications, or disapprove a proposed dispositive action
75     submitted to the executive director under Subsection (7)(a); or
76          (ii) return the proposed dispositive action to the administrative law judge for further
77     action as directed.
78          (c) In making a decision regarding a dispositive action, the executive director may seek
79     the advice of, and consult with:
80          (i) the assistant attorney general assigned to the department; or
81          (ii) a special master who:
82          (A) is appointed by the executive director; and
83          (B) is an expert in the subject matter of the proposed dispositive action.
84          (d) The executive director shall base a final dispositive action on the record of the
85     proceeding before the administrative law judge.
86          (8) To conduct an adjudicative proceeding, an administrative law judge may:
87          (a) compel:
88          (i) the attendance of a witness; and
89          (ii) the production of a document or other evidence;

90          (b) administer an oath;
91          (c) take testimony; and
92          (d) receive evidence as necessary.
93          (9) A party may appear before an administrative law judge in person, through an agent
94     or employee, or as provided by department rule.
95          (10) (a) Except as provided in Subsection (10)(b), an administrative law judge or the
96     executive director may not participate in an ex parte communication with a party to an
97     adjudicative proceeding regarding the merits of the adjudicative proceeding unless notice and
98     an opportunity to be heard are afforded to all parties.
99          (b) The executive director may discuss ongoing operational matters that require the
100     involvement of a division director without violating Subsection (10)(a).
101          (c) Upon receiving an ex parte communication from a party to a proceeding, an
102     administrative law judge or the executive director shall place the communication in the public
103     record of the proceeding and afford all parties to the proceeding with an opportunity to
104     comment on the communication.
105          (d) If an administrative law judge or the executive director receives an ex parte
106     communication, the person who receives the ex parte communication shall place the
107     communication into the public record of the proceedings and afford all parties an opportunity
108     to comment on the information.
109          (11) Nothing in this section limits a party's right to an adjudicative proceeding under
110     Title 63G, Chapter 4, Administrative Procedures Act.