# UTAH

Administrative Documentation

R307-204

State of Utah Department of Environmental Quality Division of Air Quality

195 N. 1950 West

P.O. Box 144820 Salt Lake City, Utah 84114-4820

801-536-4000



# October 6, 2011

# UTAH

ADMINISTRATIVE DOCUMENTATION 

# October 2011

# R307-204



# A DMINISTRATIVE 

# D OCUMENTATION

Table of Contents

Legal Authority Utah Code Title 19, Chapter 2, Air Conservation Act ...................................................................................C – 1 Utah Code Title 63G, Chapter 3, Administrative Rulemaking Act ..............................................................C – 16 Utah Administrative Code, R15, Administrative Rules ................................................................................C – 26

Proposed for Public Comment

Text of R3 07-204 ............................................................................................................. .........P – 1

R307-204: DAR Bulletin (May 1, 2011) Rule Anal ysis Form, DAR #34559)..............................................P–10

Public Hearing/Comments Hearing Stat ement ............................................................................................................ ......... H – 1 Summary of Public Comments .................................................................................................... ................. H – 2

Effective Rule

Final Text of R3 07-204

........................................................................................................ ..............E – 1

DAR Bulletin (August 2, 2011) Effec tive Date No tice .................................................................................E – 6

Certification

# Codes

# Air Conservation Act

Utah Code -- Title 19 -- Chapter 02 (May 28, 2009)

19-2-101. Short title -- Policy of state and purpose of chapter -- Support of local and regional programs -- Provision

of coordinated st atewide program. .............................................................................................. ..................................2

19-2-102. Definitions........................................................................................................ ...........................................2 19-2-103. Members of board -- Appointment -- Terms -- Organization -- Pe r diem and expenses.............................3

19-2-104. Powers of board. ................................................................................................... ......................................3

19-2-105. Duties of board.................................................................................................... ........................................5

19-2-105.3. Clean fuel requirements for fleets. .............................................................................. .............................5 19-2-106. Rulemaking au thority and procedure. .........................................................................................................6 19-2-107. Executive secretary -- Appointment -- Powers. ..........................................................................................6 19-2-108. Notice of construction or modification of installations required -- Authority of executive secretary to prohibit construction -- Hearings -- Limitations on authority of board -- Inspections authorized............................... ..7 19-2-109. Air quality standards -- Hearings on adoptio n -- Orders of executive secretary -- Adoption of emission control requirements........................................................................................................... ...........................................7 19-2-109.1. Operating permit require d -- Emissions fee -- Implementation. .................................................... ..........7

19-2-109.2. Small busin ess assistance program. ............................................................................... ..........................9

19-2-109.3. Public access to info rmation. ...................................................................................................................9

19-2-109.5. Pr ivate sector air quality permitting pr ofessionals certifi cation pr ogram........................................ .........9

19-2-110. Violations -- Notice to violator -- Corrective action orders -- Conference, conciliation, and persuasion by board -- Hearings.............................................................................................................. ...........................................10 19-2-112. Generalized condition of air pollution creating em ergency -- Sources causing imminent danger to health

-- Powers of executive director -- Declaration of emergency.................................................................... ..................10

19-2-113. Variances -- Judicial review....................................................................................... ...............................10

19-2-114. Activities not in vi olation of chap ter or rules.................................................................... ........................11

19-2-115. Violations -- Penaltie s -- Reimbursement for expenses. ............................................................. ..............11 19-2-116. Injunction or other remedies to pr event violations -- Civil actions not abridged................................... ...12 19-2-117. Attorney general as legal advisor to board -- Duties of attorney general and county attorneys................12 19-2-118. Violation of inju nction evidence of contempt....................................................................... ....................13 19-2-119. Civil or criminal remedies not excluded -- Actionable rights under chapter -- No liability for acts of God or other catastrophes.......................................................................................................... ..........................................13 19-2-120. Information required of owners or operators of air contaminant sources. ............................................ ....13 19-2-121. Ordinances of pol itical subdivisions authorized.................................................................... ....................13 19-2-122. Cooperative agreements betwee n political subdivisions and department. .............................................. ..13 19-2-123. Tax relief to encourage investment in facilities -- Sales an d use tax exemption.................................... ...13 19-2-124. Application for certification of po llution control facility -- Refunds -- Interest. ................................ ......13

19- 2- 125. Action on app lication for ce rtification. ........................................................................... ..........................14

19-2-126. Revocation of certif ication -- Grounds -- Procedure................................................................ .................14

19-2-127. Rules for administer ing certification for tax relief............................................................... .....................15

## Title 19. Environmental Quality Code Chapter 2. Air Conservation Act

19-2-101. Short title -- Policy of state and purpose of chapter -- Support of local and regional programs -- Provision of coordinated statewide program.

(1) This chapter is known as the "Air

Conservation Act." (2) It is the policy of this state and the purpose of this chapter to achieve and maintain levels of air quality which will protect human hea lth and safety, and to the greatest degree practicable, prevent injury to plant and animal life and property, foster the comfort and convenience of the people, promote the economic and social development of this state, and facilitate the enjoyment of the natural attractions of this state. (3) Local and regional air pollution control programs shall be supported to the extent practicable as essential instruments to secure and maintain appropriate levels of air quality. (4) The purpose of this chapter is to: (a) provide for a coordinated statewide program of air pollution prevention, abatement, and control; (b) provide for an appropriate distribution of responsibilities among the state and local units of

government; (c) facilitate cooperation across jurisdictional lines in dealing with problems of air pollution not confined within single jurisdictions; and (d) provide a framework within which air quality may be protected and consid eration given to the public interest at all levels of planning and development within the

state.



### 19-2-102. Definitions.

As used in this chapter: (1) "Air contaminant" means any particulate matter or any gas, vapor, suspended solid, or any combination of them, excluding steam and water vapors. (2) "Air contaminant source" means all sources

of emission of air contamin ants whether privately or publicly owned or operated. (3) "Air pollution" means the presence in the

ambient air of one or more air contaminants in the quantities and duration and under conditions and

circumstances as is or tends to be injurious to human health or welfare, animal or plant life, or property, or would unreasonably interfere with the enjoyment of life or use of property, as determined by th e rules adopted by the board. (4) "Ambient air" means the surrounding or

outside air. (5) "Asbestos" means the asbestiform varieties of serpentine (chrysotile), riebeckite (crocidolite),cummingtonite-grunerite, anthophyllite, and actinolitetremolite. (6) "Asbestos-containing material" means any material containing more than 1% asbestos, as determined using the method adopted in 40 CFR Part 61, Subpart M,

National Emission Standard for Asbestos. (7) "Asbestos inspection" means an activity undertaken to determine the pr esence or location, or to assess the condition of, asbestos-containing material or suspected asbestos-containing ma terial, whether by visual or physical examination, or by taking samples of the

material. (8) (a) "Board" means the Air Quality Board. (b) "Board" means, as used in Sections 19-2-123 through 19-2-126, the Air Quality Board or the Water Quality Board. (9) "Clean school bus" has the same meaning as

defined in 42 U.S.C. Sec. 16091. (10) "Executive secretary" means the executive secretary of the board. (11) (a) "Facility" means machinery, equipment, structures, or any part or accessories of them, installed or acquired for the primary purpose of controlling or disposing of air pollution. (b) "Facility" does not include an air conditioner, fan, or other similar facility for the comfort of personnel. (12) "Friable asbestos-containing material" means any material containing more than 1% asbestos, as determined using the method adopted in 40 CFR Part 61, Subpart M, National Emission St andard for Asbestos, that hand pressure can crumble, pul verize, or reduce to powder when dry. (13) "Indirect source" means a facility, building, structure, or installation which attracts or may attract mobile source activity that results in emissions of a pollutant for which there is a national standard. (14) (a) "Pollution control facility" or "facility" means, as used in Sections 19-2-123 through 19-2-126, any land, structure, building, installation, excavation, machinery, equipment, or device, or any addition to, reconstruction, replacement or improvement of, land or an existing structure, building, installation, excavation, machinery, equipment, or device reasonably used, erected, constructed, acquired, or inst alled by any person if the primary purpose of the use, erection, construction, acquisition, or installation is the prevention, control, or reduction of air or water pollution by: (i) the disposal or elim ination of or redesign to

eliminate waste and the use of treatment works for

industrial waste as defined in Title 19, Chapter 5, Water Quality Act; or (ii) the disposal, elimin ation, or reduction of or redesign to eliminate or reduc e air contaminants or air pollution or air contamination sources and the use of air cleaning devices. (b) "Pollution control facility" or "facility" does not include air conditioners, sept ic tanks, or other facilities for human waste, nor any propert y installed, constructed, or used for the moving of sewage to the collection facilities of a public or quasi-public sewerage system.

### 19-2-103. Members of board -- Appointment -- Terms -- Organization -- Per diem and expenses.

(1) The board comprises 11 members, one of

whom shall be the executive di rector and 10 of whom shall be appointed by the governor with the consent of the

Senate. (2) The members shall be knowledgeable of air pollution matters and shall be: (a) a practicing physician and surgeon licensed in the state not connected with industry; (b) a registered professional engineer who is not from industry; (c) a representative from municipal government; (d) a representative from county government; (e) a representative from agriculture; (f) a representative from the mining industry; (g) a representative from manufacturing; (h) a representative from the fuel industry; and (i) two representatives of the public not representing or connected with industry, at least one of whom represents organized environmental interests. (3) No more than five of the appointed members shall belong to the same political party. (4) The majority of the members may not derive any significant portion of their income from persons subject to permits or orders under this chapter. Any potential conflict of interest of any member or the executive secretary, relevant to the interests of the board, shall be adequately disclosed. (5) Members serving on the Air Conservation Committee created by Laws of Utah 1981, Chapter 126, as amended, shall serve as members of the board throughout the terms for which they were appointed. (6) (a) Except as required by Subsection (6)(b), members shall be appointed for a term of four years. (b) Notwithstanding the requirements of Subsection (6)(a), the governor shall, at the time of appointment or reappointment, ad just the length of terms to ensure that the terms of board members are staggered so that approximately half of the board is appointed every two

years. (7) A member may serve more than one term. (8) A member shall hold office until the expiration of the member's term and until the member's successor is appointed, but not more than 90 days after the expiration of the member's term. (9) When a vacancy occurs in the membership for any reason, the replacement shall be appointed for the unexpired term. (10) The board shall elect annually a chair and a

vice chair from its members. (11) (a) The board shall meet at least quarterly, and special meetings may be called by the chair upon his own initiative, upon the request of the executive secretary, or upon the request of three members of the board. (b) Three days' notice shall be given to each member of the board prior to any meeting. (12) Six members constitute a quorum at any meeting, and the action of a majority of members present is

the action of the board. (13) (a) (i) A member who is not a government employee shall receive no compensation or benefits for the member's services, but may r eceive per diem and expenses incurred in the performance of the member’s official duties at the rates established by the Division of Finance under

Sections 63A-3-106 and 63A-3-107. (ii) A member may decline to receive per diem and expenses for the member's service. (b) (i) A state government officer and employee

member who does not receive sa lary, per diem, or expenses from the agency the member represents for the member's service may receive per diem and expenses incurred in the performance of the member's official duties from the board at the rates established by the Division of Finance under

Sections 63A-3-106 and 63A-3-107. (ii) A state government officer and employee member may decline to receive per diem and expenses for

the member's service. (c) (i) A local government member who does not receive salary, per diem, or expenses from the entity that the member represents for the member's service may receive per diem and expenses incurred in the performance of the member's official duties at the rates established by

the Division of Finance under Sections 63A-3-106 and

63A-3-107. (ii) A local government member may decline to receive per diem and expenses for the member's service.



### 19-2-104. Powers of board.

(1) The board may make rules in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act: (a) regarding the control, abatement, and prevention of air pollution from all sources and the

establishment of the maximum quantity of air contaminants that may be emitted by any air contaminant source; (b) establishing air quality standards; (c) requiring persons engaged in operations which result in air pollution to: (i) install, maintain, and use emission monitoring devices, as the board finds necessary; (ii) file periodic re ports containing information relating to the rate, period of emission, and composition of the air contaminant; and (iii) provide access to records relating to emissions which cause or contribute to air pollution; (d) implementing 15 U. S.C.A. 2601 et seq. Toxic Substances Control Act, Subchapter II - Asbestos Hazard Emergency Response, and reviewing and approving asbestos management plans submitted by local education agencies under that act; (e) establishing a requirement for a diesel emission opacity inspection a nd maintenance program for diesel-powered motor vehicles; (f) implementing an oper ating permit program as required by and in conformity with Titles IV and V of the

federal Clean Air Act Amendments of 1990; (g) establishing requirements for county emissions inspection and ma intenance programs after obtaining agreement from the counties that would be affected by the requirements;(h) with the approval of the governor, implementing in air quality nona ttainment areas employerbased trip reduction programs applicable to businesses having more than 100 employee s at a single location and applicable to federal, state, and local governments to the extent necessary to attain and maintain ambient air quality

standards consistent with the state implementation plan and federal requirements under th e standards set forth in Subsection (2); and (i) implementing lead-based paint remediation training, certification, and performance requirements in accordance with 15 U.S.C.A. 2601 et seq., Toxic Substances Control Act, Subc hapter IV -- Lead Exposure Reduction, Sections 402 and 406. (2) When implementing Subsection (1)(h) the

board shall take into consideration: (a) the impact of the business on overall air quality; and (b) the need of the business to use automobiles in order to carry out its business purposes. (3) The board may: (a) (i) hold a hearing that is not an adjudicative proceeding relating to any aspect of or matter in the administration of this chapter and compel the attendance of witnesses and the production of documents and other evidence, administer oaths and take testimony, and receive evidence as necessary; (ii) receive a proposed dispositive action from an administrative law judge as provided by Section 19-1-301;

and (iii) (A) approve, approve with modifications, or disapprove a proposed dispositive action; or (B) return the proposed dispositive action to the administrative law judge for further action as directed; (b) issue orders necessary to enforce the provisions of this chapter, enfo rce the orders by appropriate administrative and judicial proceedings, and institute judicial proceedings to secure compliance with this chapter; (c) settle or compromise any civil action initiated to compel compliance with this chapter and the rules made under this chapter; (d) secure necessary scientific, technical, administrative, and operati onal services, including laboratory facilities, by contract or otherwise; (e) prepare and develop a comprehensive plan or plans for the prevention, abatement, and control of air pollution in this state; (f) encourage voluntary cooperation by persons and affected groups to achieve the purposes of this chapter; (g) encourage local units of government to handle air pollution within their respective jurisdictions on a cooperative basis and provide technical and consultative assistance to them; (h) encourage and conduct studies, investigations, and research relating to air contamination and air pollution and their ca uses, effects, prevention, abatement, and control; (i) determine by means of field studies and sampling the degree of air contamination and air pollution in all parts of the state; (j) monitor the effects of the emission of air contaminants from motor vehicles on the quality of the outdoor atmosphere in all part s of this state and take appropriate action with respect to them; (k) collect and disseminate information and conduct educational and training programs relating to air contamination and air pollution; (l) advise, consult, c ontract, and cooperate with other agencies of the state, local governments, industries, other states, interstate or interlocal agencies, the federal government, and with interested persons or groups; (m) consult, upon request, with any person proposing to construct, install, or otherwise acquire an air contaminant source in the state concerning the efficacy of any proposed control device, or system for this source, or the air pollution problem which may be related to the source, device, or system, but a consultation does not relieve any person from compliance with this chapter, the rules adopted under it, or any other provision of law; (n) accept, receive, and administer grants or other funds or gifts from public and private agencies, including the f ederal government, for the purpose of carrying out any of the functions of this chapter; (o) require the owner and operator of each new source which directly emits or has the potential to emit 100 tons per year or more of any air contaminant or the owner or operator of each existing s ource which by modification will increase emissions or have the potential of increasing emissions by 100 tons per year or more of any air contaminant, to pay a fee sufficient to cover the reasonable

costs of: (i) reviewing and acting upon the notice required under Section 19-2-108; and (ii) implementing and enforcing requirements placed on the sources by any approval order issued pursuant to notice, not including any court costs associated with any enforcement action; (p) assess and collect noncompliance penalties as required in Section 120 of the federal Clean Air Act, 42 U.S.C. Sec. 7420; (q) meet the requirements of federal air pollution laws; (r) establish work prac tice, certification, and clearance air sampling requi rements for persons who: (i) contract for hire to conduct demolition, renovation, salvage, encapsula tion work involving friable asbestos-containing materials, or asbestos inspections; (ii) conduct work described in Subsection (3)(r)(i) in areas to which the general public has unrestrained access or in school buildings that are subject

to the federal Asbestos Haza rd Emergency Response Act of 1986; (iii) conduct asbestos inspections in facilities subject to 15 U.S.C.A. 2601 et seq., Toxic Substances Control Act, Subchapter II - Asbestos Hazard Emergency Response; or (iv) conduct lead paint inspections in facilities subject to 15 U.S.C.A. 2601 et seq., Toxic Substances Control Act, Subchapter IV -- Lead Exposure Reduction; (s) establish certification requirements for persons required under 15 U. S.C.A. 2601 et seq., Toxic Substances Control Act, Subchapter II - Asbestos Hazard Emergency Response, to be accredited as inspectors, management planners, abat ement project designers,asbestos abatement contractors and supervisors, or asbestos abatement workers; (t) establish certification requirements for asbestos project monitors, which shall provide for experience-based certification of persons who, prior to establishment of the certification requirements, had received relevant asbestos training, as defined by rule, and had acquired at least 1,000 hours of experience as project monitors; (u) establish certif ication procedures and requirements for certification of the conversion of a motor vehicle to a clean-fuel vehicle, certifying the vehicle is eligible for the tax credit granted in Section 59-7-605 or 59- 10-1009; (v) establish a program to certify private sector air quality permitting professionals (AQPP), as described in Section 19-2-109.5; (w) establish certif ication requirements for persons required under 15 U. S.C.A. 2601 et seq., Toxic Control Act, Subchapter IV -- Lead Exposure Reduction, to be accredited as inspectors, risk assessors, supervisors, project designers, or abatement workers; and (x) assist the State Board of Education in adopting school bus idling reduction standards and implementing an idling reduction program in accordance

with Section 41-6a-1308. (4) Any rules adopted under this chapter shall be consistent with provisions of federal laws, if any, relating

to control of motor vehicles or motor vehicle emissions. (5) Nothing in this chapter authorizes the board to require installation of or payment for any monitoring equipment by the owner or operator of a source if the owner or operator has installe d or is operating monitoring equipment that is e quivalent to equipm ent which the board would require under this section.



### 19-2-105

. Duties of board.

The board, in conjunction with the governing body of each county identifie d in Section 41-6a-1643 and other interested parties, shall perform an evaluation of the inspection and maintenance program developed under Section 41-6a-1643 including issues relating to: (1) the implementation of a standardized inspection and maintenance program; (2) out-of-state registration of vehicles used in Utah; (3) out-of-county registration of vehicles used within the areas required to have an inspection and maintenance program; (4) use of the farm truck exemption; (5) mechanic training programs; (6) emissions standards; and (7) emissions waivers.



### 19-2-105.3. Clean fuel requirements

for fleets.

(1) As used in this section: (a) "1990 Clean Air Act" means the federal

Clean Air Act as amended in 1990. (b) "Clean fuel" means: (i) propane, compressed natural gas, or electricity; (ii) other fuel the Air Quality Board created in Title 19, Chapter 2, Air C onservation Act, determines annually on or before July 1 is at least as eff ective as fuels under Subsection (1)(b)(i) in reducing air pollution; and (iii) other fuel that meets the clean fuel vehicle

standards in the 1990 Clean Air Act. (c) "Fleet" means 10 or more vehicles: (i) owned or operated by a single entity as defined by board rule; and (ii) capable of being fueled or that are fueled at a

central location. (d) "Fleet" does not in clude motor vehicles that

are: (i) held for lease or re ntal to the general public; (ii) held for sale or used as demonstration vehicles by motor vehicle dealers; (iii) used by motor vehicle manufacturers for product evaluations or tests; (iv) authorized emergenc y vehicles as defined in Section 41-6a-102; (v) registered under Title 41, Chapter 1a, Part 2, Registration, as farm vehicles; (vi) special mobile equipment as defined in Section 41-1a-102; (vii) heavy duty trucks with a gross vehicle weight rating of more than 26,000 pounds; (viii) regularly used by employees to drive to and from work, parked at the employees' personal residences when they are not at their employment, and not practicably fueled at a central location; (ix) owned, operated, or leased by public transit districts; or (x) exempted by board rule. (2) (a) After evaluation of reasonably available pollution control strategies, and as part of the state implementation plan demonstr ating attainment of the national ambient air quality standards, the board may by rule, subject to Subsection (2)(c), require fleets in specified geographical areas to use clean fuels if the board

determines fleet use of clean fuels is: (i) necessary to demonstrate attainment of the national ambient air quality standards in any area where they are required; and (ii) reasonably cost effective when compared to other similarly beneficial control strategies for demonstrating attainment of the national ambient air quality standards. (b) State implementation plans developed prior to July 1, 1995, may require fleets to use clean fuels no earlier than July 1, 1995, unless the board determines fleet use of clean fuels is necessary prior to July 1, 1995, to

demonstrate attainment of th e national ambien t air quality standards in any area by an attainment date established by

federal law. (c) The board may not require more than 50% of

those trucks in a fleet that are heavy duty trucks having a gross vehicle weight rating of more than 8,500 pounds and not more than 26,000 pounds to convert to clean fuels under Subsection (2)(b).(3) (a) After evaluation of reasonably available pollution control strategies, and as part of a state implementation plan demonstr ating only maintenance of the national ambient air quality standards, the board may by rule, subject to Subsection (3)(b), require fleets in specified geographical areas to use clean fuels if the board

determines fleet use of clean fuels is: (i) necessary to demonstrate maintenance of the national ambient air quality standards in any area where they are required; and (ii) reasonably cost effective as compared with other similarly beneficial control strategies for demonstrating maintenance of the national ambient air quality standards. (b) Under Subsection (3)(a) the board may require no more than: (i) 30% of a fleet to use clean fuels before January 1, 1998; (ii) 50% of a fleet to use clean fuels before January 1, 1999; and (iii) 70% of a fleet to use clean fuels before January 1, 2000. (c) The board may not require more than 50% of

those trucks in a fleet that are heavy duty trucks having a gross vehicle weight rating of more than 8,500 pounds and not more than 26,000 pounds to convert to clean fuels under Subsection (3)(b). (4) Rules the board makes under this section may include: (a) dates by which fleets are required to convert to clean fuels under the prov isions of this section; (b) definitions of fl eet owners or operators; (c) definitions of vehicles exempted from this section by rule; (d) certification requi rements for persons who

install clean fuel conversion equipment, including testing

and certification standards regarding installers; and (e) certification fees for installers, established

under Section 63J-1-504. (5) Implementation of this section and rules made under this section are subject to the reasonable availability of clean fuel in the local market as determined by the board.



### 19-2-106. Rulemaking authority and procedure.

(1) Except as provided in Subsection (2), no rule which the board makes for the purpose of administering a program under the federal Cl ean Air Act may be more stringent than the correspondi ng federal regulations which

address the same circumstances. In making rules, the board may incorporate by reference corresponding federal regulations. (2) The board may make rules more stringent than corresponding federal regulations for the purpose described in Subsection (1), only if it makes a written finding after public comment and hearing and based on evidence in the record, that corresponding federal regulations are not adequate to protect public health and the environment of the state. Those findings shall be accompanied by an opinion referring to and evaluating the public health and environmen tal information and studies

contained in the record which form the basis for the board's

conclusion.



### 19-2-107. Executive secretary -- Appointment -- Powers.

(1) The executive secretary shall be appointed by the executive director, with th e approval of the board, and

shall serve under the administrative direction of the

executive director. (2) The executive secretary may: (a) develop programs for the prevention, control,

and abatement of new or existi ng air pollution resources of the state; (b) advise, consult, and cooperate with other agencies of the state, the fe deral government, other states and interstate agencies, and with affected groups, political subdivisions, and industries in furtherance of the purposes of this chapter; (c) employ full-time employees necessary to carry out this chapter; (d) as authorized by the board, subject to the provisions of this chapter, authorize any employee or representative of the department to enter at reasonable time and upon reasonable notice in or upon public or private property for the purposes of inspecting and investigating conditions and plant records concerning possible air pollution; (e) encourage, particip ate in, or conduct studies, investigations, research, and de monstrations relating to air pollution and causes of it as advisable and necessary for the discharge of duties assigned under this chapter, including

the establishment of invent ories of pollution sources; (f) collect and disseminate information relating to air pollution and the prevention, control, and abatement of it; (g) as authorized by the board subject to the provisions of this chapter, enforce rules through the issuance of orders, including: (i) prohibiting or abating discharges of wastes affecting ambient air; (ii) requiring the construction of new control facilities or any parts of new control facilities or the modification, extens ion, or alteration of existing control facilities or any parts of new control facilities; or (iii) the adoption of other remedial measures to prevent, control, or abate air pollution; (h) review plans, spec ifications, or other data relative to pollution control systems or any part of the systems provided in this chapter; (i) as authorized by the board, subject to the provisions of this chapter, exercise all incidental powers necessary to carry out the purposes of this chapter, including certification to any state or federal authorities for tax purposes the fact of cons truction, installation, or acquisition of any facility, land, building, machinery, or equipment or any part of them, in conformity with this chapter; (j) cooperate with any person in studies and research regarding air pollution, its control, abatement, and prevention; and(k) represent the state with the specific

concurrence of the executive director in all matters pertaining to interstate air po llution, including interstate compacts and similar agreements.



### 19-2-108

. Notice of construction or modification of installations required -- Authority of executive secretary to prohibit construction -- Hearings -- Limitations on authority of board -- Inspections authorized.

(1) The board shall require that notice be given to the executive secretary by any person planning to construct a new installation which will or might r easonably be expected to be a source or indirect source of air pollution or to make modifications to an existing installation which will or might reasonably be expected to increase the amount of or change the character or

effect of air contaminants discha rged, so that the installation may be expected to be a source or indirect source of air pollution, or by any person planning to install an air cleaning device or other equipment intended to control emission of air contaminants. (2) (a) (i) The executive secretary may require, as a condition precedent to the constructi on, modification, installation, or establishment of the air contaminant source or indirect source, the submission of plans, specificati ons, and other information as he finds necessary to determine wh ether the proposed construction, modification, installation, or esta blishment will be in accord with applicable rules in force under this chapter. (ii) Plan approval for an indirect source may be delegated by the executive secret ary to a local authority when requested and upon assurance that the local authority has and will maintain sufficient expertise to insure that the planned installation will meet the requirements established by law. (b) If within 90 days af ter the receipt of plans, specifications, or other informati on required under this subsection, the executive secretary determines that the proposed construction, installation, or establishment or an y part of it will not be in accord with the requirements of this chap ter or applicable rules or that further time, not exceeding three extensions of 30 days each, is required by the board to adequately review the plans, specifications, or other informa tion, he shall issue an order prohibiting the construction, installa tion, or establishment of the air contaminant source or sources in whole or in part. (3) In addition to any other remedies, any person aggrieved by the issuance of an order either granting or denying a request for the construction of a new installation, and prior to invoking any such other remedies shall, upon request, in

accordance with the rules of the board, be entitled to a hearing conducted by an administrative la w judge as provided by Section 19-1-301. Following the hearing a nd the receipt by the board of the proposed dispositive action from the administrative law judge, the board may affirm, modify, or withdraw the permit. (4) Any features, machines, and devices constituting parts of or called for by plans, specifications, or other information submitted under Subsection (1) shall be maintained in good working order. (5) This section does not authorize the board to require the use of machinery, devices, or equipment from a particular supplier or produced by a particular manufacturer if the required performance standards may be met by machinery, devices, or equipment otherwise available. (6) (a) Any authorized officer, employee, or representative of the board may enter and inspect any property, premise, or place on or at which an air contaminant source is located or is being constructed, modified, installed, or established at any reasonable time for the purpose of ascertaining the state of compliance with this chapter and the rules adopted under it. (b) (i) A person may not refuse entry or access to any authorized representative of the board who requests entry for purposes of inspection and who presents appropriate credentials. (ii) A person may not obstruct, hamper, or interfere with any inspection. (c) If requested, the owner or operator of the premises shall receive a report setting forth all facts found which relate to compliance status.



### 19-2-109

. Air quality standards -- Hearings on adoption -- Orders of executive secretary -- Adoption of emission control requirements.

(1) (a) The board, in adopting standards of quality for ambient air, shal l conduct public hearings. (b) Notice of any public hearing for the consideration, adoption, or amendment of air quality standards shall specify the locations to which the proposed standards apply and the time, date, and place of the hearing. (c) The notice shall be: (i) (A) published at leas t twice in any newspaper of general circulation in the area affected; and (B) published, in acco rdance with Section 45-1- 101, at least 20 days before the public hearing; and (ii) mailed at least 20 days before the public hearing to the chief executive of each political subdivision of the area affected and to other persons the executive secretary has reason to believe will be affected by the

standards. (d) The adoption of air quality standards or any modification or changes to air quality standards shall be by order of the executive secretary following formal action of the board with respect to the standards. (e) The order shall be published: (i) in a newspaper of general circulation in the area affected; and (ii) as required in Section 45-1-101. (2) (a) The board may establish emission control requirements by rule that in its judgment may be necessary to prevent, abate, or control air pollution that may be statewide or may vary from area to area, taking into account varying local conditions. (b) In adopting these requirements, the board shall give notice and conduct public hearings in accordance with the requirements in Subsection (1).



### 19-2-109.1

. Operating permit required -- Emissions fee -- Implementation.

(1) As used in this section and Sections 19-2-

109.2 and 19-2-109.3: (a) "EPA" means the federal Environmental Protection Agency. (b) "1990 Clean Air Act" means the federal

Clean Air Act as amended in 1990. (c) "Operating permit" means a permit issued by the executive secretary to sources of air pollution that meet the requirements of Titles IV and V of the 1990 Clean Air

Act.(d) "Program" means the air pollution operating permit program established unde r this section to comply

with Title V of the 1990 Clean Air Act. (e) "Regulated pollutant" has the same meaning

as defined in Title V of the 1990 Clean Air Act and implementing federal regulations. (2) (a) A person may not operate any source of air pollution required to have a permit under Title V of the 1990 Clean Air Act without having obtained an operating permit from the executive secr etary under procedures the board establishes by rule. (b) A person is not required to submit an operating permit applica tion until the governor has submitted an operating permit program to the EPA. (c) Any operating permit issued under this section may not become effective until the day after the EPA issues approval of the permit program or November 15, 1995, whichever occurs first. (3) (a) Operating permits issued under this section shall be for a period of five years unless the board makes a written finding, after public comment and hearing, and based on substantial evidence in the record, that an operating permit term of less than five years is necessary to protect the public health and th e environment of the state. (b) The executive secretary may issue, modify, or renew an operating permit only after providing public notice, an opportunity for public comment, and an opportunity for a public hearing. (c) The executive secretary shall, in conformity with the 1990 Clean Air Act and implementing federal regulations, revise the cond itions of issued operating permits to incorporate applic able federal regulations in conformity with Section 502(b)(9) of the 1990 Clean Air Act, if the remaining period of the permit is three or more

years. (d) The executive secretary may terminate, modify, revoke, or reissue an operating permit for cause. (4) (a) The board shall establish a proposed

annual emissions fee that conforms with Title V of the 1990 Clean Air Act for each ton of regulated pollutant, applicable to all sources requi red to obtain a permit. The

emissions fee established under th is section is in addition to

fees assessed under Section 19-2-108 for issuance of an approval order. (b) In establishing the fee the board shall comply with the provisions of Sect ion 63J-1-504 that require a public hearing and require the established fee to be submitted to the Legislature for its approval as part of the department's annual appropriations request. (c) The fee shall cover all reasonable direct and indirect costs required to develop and administer the program and the small business assistance program

established under Section 19-2- 109.2. The board shall prepare an annual report of the emissions fees collected and the costs covered by those fees under this Subsection (4). (d) The fee shall be established uniformly for all sources required to obtain an operating permit under the program and for all regulated pollutants. (e) The fee may not be assessed for emissions of any regulated pollutant if the emissions are already accounted for within the emissions of another regulated pollutant. (f) An emissions fee may not be assessed for any amount of a regulated pollutant emitted by any source in excess of 4,000 tons per year of that regulated pollutant. (5) Emissions fees for the period: (a) of July 1, 1992, through June 30, 1993, shall be based on the most recent emissions inventory prepared by the executive secretary; and (b) on and after July 1, 1993, but prior to issuance of an operating permit, shall be based on the most recent emissions inventory, unless a source elects prior to July 1, 1992, to base the fee on allowable emissions, if applicable for a regulated pollutant. (6) After an operating permit is issued the

emissions fee shall be based on actual emissions for a regulated pollutant unless a source elects, prior to the issuance or renewal of a permit, to base the fee during the period of the permit on allowable emissions for that regulated pollutant. (7) If the owner or operator of a source subject to this section fails to timely pa y an annual emissions fee, the executive secretary may: (a) impose a penalty of not more than 50% of the fee, in addition to the fee, pl us interest on the fee computed at 12% annually; or (b) revoke the operating permit. (8) The owner or operato r of a source subject to this section may contest an emissions fee assessment or associated penalty in an adjudicative hearing under the Title 63G, Chapter 4, Administ rative Procedures Act, and Section 19-1-301, as provided in this Subsection (8). (a) The owner or operator must pay the fee under protest prior to being entitled to a hearing. Payment of an emissions fee or penalty under protest is not a waiver of the right to contest the fee or penalty under this section. (b) A request for a hearing under this Subsection (8) shall be made after payment of the emissions fee and

within six months after the emissions fee was due. (9) To reinstate an operating permit revoked under Subsection (7) the owner or operator shall pay all outstanding emissions fees, a penalty of not more than 50% of all outstanding fees, and interest on the outstanding emissions fees computed at 12% annually. (10) All emissions fees and penalties collected by the department under this s ection shall be deposited in the General Fund as the Air Pollution Operating Permit Program dedicated credit to be used solely to pay for the reasonable direct and indirect costs incurred by the department in developing an d administering the program

and the small business assist ance program under Section

19-2-109.2. (11) Failure of the executive secretary to act on any operating permit application or renewal is a final administrative action only for the purpose of obtaining judicial review by any of th e following persons to require the executive secretary to take action on the permit or its renewal without additional delay: (a) the applicant; (b) any person who participated in the public

comment process; or (c) any other person who could obtain judicial

review of that action under applicable law.

### 19-2-109.2

. Small business assistance

program.

(1) The board shall establish a small business stationary source technical and environmental compliance assistance program that conf orms with Title V of the 1990 Clean Air Act to assist small businesses to comply with state and federal air pollution laws. (2) There is created the Compliance Advisory Panel to advise and monitor the program created in Subsection (1). The seven panel members are: (a) two members who are not owners or representatives of owners of small business stationary air pollution sources, selected by the governor to represent the general public; (b) four members who are owners or who represent owners of small business stationary sources selected by leadership of the Utah Legislature as follows: (i) one member selected by the majority leader of the Senate; (ii) one member selected by the minority leader of the Senate; (iii) one member selected by the majority leader of the House of Representatives; and (iv) one member selected by the minority leader of the House of Representatives; and (c) one member selected by the executive director to represent the Division of Air Quality, Department of Environmental Quality. (3) (a) Except as required by Subsection (b), as terms of current panel memb ers expire, the department shall appoint each new member or reappointed member to a four-year term. (b) Notwithstanding the requirements of Subsection (a), the departme nt shall, at the time of appointment or reappointment, ad just the length of terms to ensure that the terms of pa nel members are staggered so that approximately half of th e panel is appointed every two

years. (4) Members may serve more than one term. (5) Members shall hold office until the expiration of their terms a nd until their successors are appointed, but not more than 90 days after the expiration of

their terms. (6) When a vacancy occurs in the membership for any reason, the replacement shall be appointed for the unexpired term. (7) Every two years, the panel shall elect a chair

from its members. (8) (a) The panel shall meet as necessary to carry out its duties. Meetings may be called by the chair, the executive secretary, or upon written request of three of the members of the panel. (b) Three days' notice shall be given to each member of the panel prior to a meeting. (9) Four members constitute a quorum at any meeting, and the action of the majority of members present is the action of the panel. (10) (a) (i) Members who are not government employees shall receive no compensation or benefits for their services, but may receive per diem and expenses incurred in the performance of the member’s official duties at the rates established by the Division of Finance under

Sections 63A-3-106 and 63A-3-107. (ii) Members may decline to receive per diem and expenses for their service. (b) (i) State government officer and employee members who do not receive salary, per diem, or expenses from their agency for their service may receive per diem and expenses incurred in the performance of their official duties from the panel at the rates established by the

Division of Finance under Sections 63A-3-106 and 63A-3-

107. (ii) State government officer and employee members may decline to receive per diem and expenses for

their service. (c) Legislators on the committee shall receive compensation and expenses as provided by law and legislative rule.



### 19-2-109.3

. Public access to

information.

A copy of each permit application, compliance plan, emissions or compliance monitoring report, certification, and each operating permit issued under this chapter shall be made available to the public in accordance with Title 63G, Chapter 2, Government Records Access and Management Act.



### 19-2-109.5

. Private sector air quality permitting professionals certification

program.

(1) As used in this section, "AQPP" means an air quality permitting professional. (2) The board may establish a program to certify private sector AQPPs, includi ng consultants and employees of companies that may seek air quality permits from the division. Any program establ ished under this section shall

include: (a) a training program established and operated by the department, which desc ribes and explains the state law and rules regarding the air quality permit application and approval procedure under this chapter; (b) the requirement to pass an exam to measure qualifications of AQPP applicants; (c) an option for certification of an AQPP by passing the exam without undergoing any training required under the program; (d) an application process, including a fee

established under Section 63J-1-504 that covers the costs of the training, testing, and application process and the department's maintenance of a list of certified AQPPs; (e) certification of qualified AQPP applicants; (f) maintenance by the department of a current list of certified AQPPs, which is available to the public; (g) procedures for the expedited review by the department of air quality permit applications submitted by certified AQPPs; and (h) professional standards for AQPPs. (3) The board may not require AQPP certification as a condition of preparing or submitting anotice of intent or operating permit application under this chapter. (4) Any program under this section shall provide for revocation of any certifica tion issued under this section if the department determines, through an administrative hearing conducted under Title 63G, Chapter 4, Administrative Procedures Act, and Section 19-1-301, that the AQPP: (a) knowingly or negligently submitted false information or data as part of an air quality permit application; (b) prepared more than three air quality permit applications in one calendar year in a manner that each did not substantially comply w ith department application requirements; or (c) prepared any air qua lity permit application in violation of the professional standards defined by department rule.



### 19-2-110

. Violations -- Notice to

violator -- Corrective action orders -- Conference, conciliation, and persuasion by board -- Hearings.

(1) (a) Whenever the executive secretary has reason to believe that a violation of any provision of this chapter or any rule issued under it has occurred, he may

serve written notice of th e violation upon the alleged violator. The notice shall specify the provision of this chapter or rule alleged to be violated, the facts alleged to constitute the violation, and may include an order that necessary corrective action be taken within a reasonable

time. (b) In lieu of beginning an adjudicative proceeding under Subsection (1)(a), the board may initiate an action pursuant to Section 19-2-115. (2) Nothing in this chapter prevents the board from making efforts to obtain voluntary compliance through warning, conference, conciliation, persuasion, or other appropriate means. (3) Hearings may be held before an administrative law judge as provided by Section 19-1-301.



### 19-2-112

. Generalized condition of air pollution creating emergency -- Sources causing imminent danger to health -- Powers

of executive director -- Declaration of

emergency.

(1) (a) Title 63G, Chapter 4, Administrative Procedures Act, and any other provision of law to the contrary notwithstanding, if the executive director finds that a generalized condition of air pollution exists and that it creates an emergency requiring immediate action to protect human health or safety, the executive director, with the concurrence of the governor, shall order persons causing or contributing to the air pollution to reduce or discontinue immediately the em ission of air contaminants. (b) The order shall fix a place and time, not later than 24 hours after its issuance, for a hearing to be held before the governor. (c) Not more than 24 hours after the commencement of this hearing, and without adjournment of it, the governor shall affirm, modify, or set aside the order

of the executive director. (2) (a) In the absence of a generalized condition of air pollution referred to in Subsection (1), but if the

executive director finds that emissions from the operation of one or more air contaminant sources is causing imminent danger to human health or safety, the executive director may commence adjudicative proceedings under Section

63G-4-502. (b) Notwithstanding Section 19-1-301, the executive director may conduct the emergency adjudicative proceeding in place of an administrative law judge. (3) Nothing in this section limits any power that the governor or any other officer has to declare an emergency and act on the basis of that declaration.



### 19-2-113

. Variances -- Judicial

review.

(1) (a) Any person who owns or is in control of any plant, building, structure, establishment, process, or equipment may apply to the bo ard for a variance from its

rules. (b) The board may grant the requested variance following an announced public m eeting, if it finds, after considering the endangerment to human health and safety and other relevant factors, th at compliance with the rules

from which variance is s ought would produce serious hardship without equal or grea ter benefits to the public. (2) A variance may not be granted under this

section until the board has cons idered the relative interests of the applicant, other owners of property likely to be affected by the discharges, and the general public. (3) Any variance or renewal of a variance shall be granted within the requir ements of Subsection (1) and for time periods and under condit ions consistent with the reasons for it, and within the following limitations: (a) if the variance is granted on the grounds that there are no practicable means known or available for the adequate prevention, abatement, or control of the air pollution involved, it shall be only until the necessary means for prevention, abatemen t, or control become known and available, and subject to the taking of any substitute or alternate measures that the board may prescribe; (b) (i) if the variance is granted on the grounds that compliance with the requirements from which variance is sought will require that measures, because of their extent or cost, must be spread over a long period of time, the variance shall be granted for a reasonable time that, in the view of the board, is requi red for implementation of the necessary measures; and (ii) a variance granted on this ground shall

contain a timetable for the implementation of remedial measures in an expediti ous manner and shall be conditioned on adherence to the timetable; or (c) if the variance is granted on the ground that it is necessary to relieve or prevent hardship of a kind other than that provided for in Subsection (a) or (b), it shall not be granted for more than one year.(4) (a) Any variance granted under this section may be renewed on terms and conditions and for periods that would be appropriate for initially granting a variance. (b) If a complaint is made to the board because of the variance, a renewal may not be granted unless, following an announced public meeting, the board finds that renewal is justified. (c) To receive a renewal, an applicant shall submit a request for agency action to the board requesting a

renewal. (d) Immediately upon rece ipt of an application for renewal, the board shall give public notice of the application as requi red by its rules. (5) (a) A variance or renewal is not a right of the applicant or holder but may be granted at the board's

discretion. (b) A person aggrieved by the board's decision may obtain judicial review. (c) Venue for judicial review of informal adjudicative proceedings is in the district court in which the

air contaminant source is situated. (6) (a) The board may review any variance during the term for which it was granted. (b) The review procedure is the same as that for an original application. (c) The variance may be revoked upon a finding

that: (i) the nature or amount of emission has changed or increased; or (ii) if facts existing at the date of the review had existed at the time of the original application, the variance would not have been granted. (7) Nothing in this section and no variance or renewal granted pursuant to it shall be construed to prevent or limit the application of the emergency provisions and procedures of Section 19-2-112 to any person or property.



### 19-2-114

. Activities not in violation of chapter or rules.

The following are not a violation of this chapter or of any rules made under it: (1) burning incident to horticultural or agricultural operations of: (a) prunings from trees, bushes, and plants; or (b) dead or diseased trees, bushes, and plants, including stubble; (2) burning of weed growth along ditch banks incident to clearing these ditches for irrigation purposes; (3) controlled heating of orchards or other crops to lessen the chances of their being frozen so long as the emissions from this heati ng do not violate minimum standards set by the board; and (4) the controlled burning of not more than two structures per year by an organized and operating fire department for the purpose of training fire service personnel when the United Stat es Weather Service clearing

index is above 500.



### 19-2-115

. Violations -- Penalties -- Reimbursement for expenses.

(1) As used in this section, the terms "knowingly," "willfully," and "criminal negligence" shall

mean as defined in Section 76-2-103. (2) (a) A person who violat es this chapter, or any rule, order, or permit issued or made under this chapter is subject in a civil proceeding to a penalty not to exceed $10,000 per day for each violation. (b) Subsection (2)(a) also applies to rules made under the authority of Section 19-2-104, for implementation of 15 U.S.C. A. 2601 et seq., Toxic Substances Control Act, Subchapter II - Asbestos Hazard Emergency Response. (c) Penalties assessed fo r violations described in 15 U.S.C.A. 2647, Toxic S ubstances Control Act, Subchapter II - Asbestos Hazard Emergency Response, may not exceed the amounts speci fied in that section and

shall be used in accordance with that section. (3) A person is guilty of a class A misdemeanor and is subject to imprisonment under Section 76-3-204 and a fine of not more than $25,000 per day of violation if that person knowingly violates any of the following under this chapter: (a) an applicable standard or limitation; (b) a permit condition; or (c) a fee or filing requirement. (4) A person is guilty of a third degree felony and is subject to imprisonment under Section 76-3-203 and a fine of not more than $25 ,000 per day of violation who knowingly: (a) makes any false material statement, representation, or certification, in any notice or report required by permit; or (b) renders inaccurate any monitoring device or method required to be maintained by this chapter or applicable rules made under this chapter. (5) Any fine or penalty assessed under Subsections (2) or (3) is in lieu of any penalty under

Section 19-2-109.1. (6) A person who willfully violates Section 19-2- 120 is guilty of a class A misdemeanor. (7) A person who knowingly violates any requirement of an applicable implementation plan adopted by the board, more than 30 days after having been notified in writing by the executive secretary that the person is violating the requirement, knowingly violat es an order issued under Subsection 19-2-110(1)(a), or knowingly handles or disposes of asbestos in violation of a rule made under this chapter is guilty of a third degree felony and subject to imprisonment under Section 76-3-203 and a fine of not more than $25,000 per day of violation in the case of the first offense, and not more than $50,000 per day of violation in the case of subsequent offenses. (8) (a) As used in this section: (i) "Hazardous air pollutant" means any hazardous air pollutant listed under 42 U.S.C. 7412 or any extremely hazardous substance listed under 42 U.S.C. 11002(a)(2). (ii) "Organization" means a legal entity, other than a government, establis hed or organized for any purpose, and includes a corporat ion, company, association, firm, partnership, joint stock company, foundation,institution, trust, society, union, or any other association of

persons. (iii) "Serious bodily injury" means bodily injury

which involves a substantial ri sk of death, unconsciousness, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty. (b) (i) A person is guilty of a class A misdemeanor and subject to imprisonment under Section 76-3-204 and a fine of not more than $25,000 per day of violation if that person w ith criminal negligence: (A) releases into the ambient air any hazardous air pollutant; and (B) places another pers on in imminent danger of death or serious bodily injury. (ii) As used in this Subsection (8)(b), "person" does not include an employee who is carrying out the employee's normal activities and who is not a part of senior management personnel or a corporate officer. (c) A person is guilty of a second degree felony and is subject to imprisonment under Section 76-3-203 and a fine of not more than $50,000 per day of violation if that

person: (i) knowingly releases into the ambient air any hazardous air pollutant; and (ii) knows at the time th at the person is placing another person in imminent da nger of death or serious bodily injury. (d) If a person is an organization, it shall, upon conviction of violating Subsec tion (8)(c), be subject to a fine of not more than $1,000,000. (e) (i) A defendant who is an individual is

considered to have acte d knowingly under Subsections (8)(c) and (d), if: (A) the defendant's conduct placed another person in imminent danger of death or serious bodily injury; and (B) the defendant was aware of or believed that there was an imminent danger of death or serious bodily injury to another person. (ii) Knowledge possessed by a person other than the defendant may not be attr ibuted to the defendant. (iii) Circumstantial evidence may be used to prove that the defendant possessed actual knowledge, including evidence that the defendant took affirmative steps to be shielded from receiving relevant information. (f) (i) It is an affirma tive defense to prosecution under this Subsection (8) that the conduct charged was freely consented to by the person endangered and that the danger and conduct charged were reasonably foreseeable

hazards of: (A) an occupation, a business, a profession; or (B) medical treatment or medical or scientific experimentation conducted by professionally approved methods and the other person was aware of the risks involved prior to giving consent. (ii) The defendant has the burden of proof to establish any affirmative de fense under this Subsection (8)(f) and must prove that defense by a preponderance of

the evidence. (9) (a) Except as provided in Subsection (9)(b), and unless prohibited by federa l law, all penalties assessed and collected under the authority of this section shall be deposited in the General Fund. (b) The department may reimburse itself and local governments from monies collected from civil penalties for extraordinary expenses incurred in

environmental enforcement activities. (c) The department shall regulate reimbursements by ma king rules in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, that: (i) define qualifying environmental enforcement activities; and (ii) define qualifying extraordinary expenses.



### 19-2-116

. Injunction or other remedies to prevent violations -- Civil actions not abridged.

(1) Action under Section 19-2-115 does not bar enforcement of this chapter, or any of the rules adopted under it or any orders made under it by injunction or other appropriate remedy. The board has the power to institute and maintain in the name of the state any and all enforcement proceedings. (2) This chapter does not abridge, limit, impair, create, enlarge, or otherwise affect substantively or procedurally the right of an y person to damages or other relief on account of injury to persons or property and to maintain any action or other appropriate proceeding for this

purpose. (3) (a) In addition to any other remedy created in this chapter, upon failure of any person to comply with any provision of this chapter or any rule adopted under it or any final order made by the board, the executive secretary, or the executive director and when it appears necessary for the protection of health and welf are, the board may initiate through its executive secretary an action for appropriate injunctive relief. (b) The attorney general shall bring injunctive relief actions on request. (c) A bond is not required.



### 19-2-117

. Attorney general as legal advisor to board -- Duties of attorney general and county attorneys.

(1) The attorney general is the legal advisor to the board and its executive secretary and shall defend them or any of them in all actions or proceedings brought against them or any of them. (2) The county attorney in the county in which a cause of action arises may, upon request of the board or its executive secretary, bring any action, civil or criminal, to abate a condition which exists in violation of, or to prosecute for the violation of or to enforce, this chapter or the standards, orders, or rules of the board or the executive secretary issued under this chapter. (3) The board or its executive secretary may bring any action and be represen ted by the attorney general. (4) In the event any person fails to comply with a

cease and desist order of the board or its executive secretary that is not subject to a stay pending administrative or judicial review, the board may, through its executivesecretary, initiate an action for, and is entitled to, injunctive relief to prevent any further or continued violation of the

order.



### 19-2-118

. Violation of injunction evidence of contempt.

Failure to comply with the terms of any injunction issued under this chap ter is prima f acie evidence of contempt which is punis hable as for other civil

contempts.



### 19-2-119

. Civil or criminal remedies not excluded -- Actionable rights under chapter -- No liability for acts of God or other catastrophes.

(1) Existing civil or criminal remedies for any wrongful action which is a violation of any part of the law are not excluded by this chapter. (2) Persons other than the state or the board do not acquire actionable rights by virtue of this chapter. (3) The liabilities imposed for violation of this chapter are not imposed for any violation caused by an act of God, war, strike, ri ot, or othe r catastrophe.



### 19-2-120. Information required of owners or operators of air contaminant

sources.
The owner or operator of any stationary air

contaminant source in the state shall furnish to the board the reports required under Section 19-2-104 and any other information the board finds necessary to determine whether the source is in compliance with state and federal regulations and standards. The information shall be correlated with applicable emission standards or limitations and shall be available to the public during normal business hours at the office of the department.



### 19-2-121

. Ordinances of political

subdivisions authorized.

Any political subdivision of the state may enact and enforce ordinances to control air pollution that are consistent with this chapter.



### 19-2-122. Cooperative agreements between political subdivisions and department.

(1) Any political subdivision of the state may enter into and perform with ot her political subdivisions of the state or with the department contracts and agreements as they find proper for establishing, planning, operating, and financing air pollution programs. (2) The agreements may provide for an agency

to: (a) supervise and operate an air pollution

program; (b) prescribe, subject to the approval of the board, the agency's powers and duties; and (c) fix the compensation of the agency's members and employees.



### 19-2-123

. Tax relief to encourage

investment in facilities -- Sales and use tax exemption.

(1) It is in the public interest of the state to encourage, through tax relief, investment in pollution control and pollution elimination facilities while at the same time making and keeping the state an attractive location for continued industrial development, including the expansion of existing plants, thereby increasing employment and payrolls and upgrading the natural

resources of the state. (2) All materials and equipment purchased, leased, or otherwise procured and services utilized for the construction or installation in a pollution control facility are exempt from sales and use ta xes imposed by Title 59, Chapter 12, Sales and Use Tax Act, upon obtaining a certification of pollution control facility from the board.



### 19-2-124

. Application for certification of pollution control facility --

Refunds -- Interest.

(1) (a) A person who qualifies under Subsection (2) may apply to the board for certification of a pollution control facility erected, construc ted, or installed, or to be erected, constructed, or installed in the state. (b) The person may file the application after: (i) a firm construction contract has been entered;

or (ii) construction has commenced. (2) (a) (i) A person who applies under Subsection (1) shall be: (A) the owner of a trade or business that uses property in the state requiring a pollution control facility to prevent or minimize pollution; or (B) a person who, as a lessee or pursuant to an agreement, conducts the trade or business that operates or uses the property. (ii) For purposes of this Subsection (2), "owner" includes a contract purchaser. (b) The facility shall be owned, operated, or leased during a part of the tax year in which the exemption

is claimed. (c) A person who obtains certification for a pollution control facility may claim an exemption from sales and use taxes as provided in Sections 19-2-123 and

59-12-104. (d) A person who pays a tax under Title 59, Chapter 12, Sales and Use Tax Act, on a purchase of tangible personal property or services used in the construction of or incorporated into a pollution control facility that: (i) is not certified under Section 19-2-125, may

obtain a refund of the tax if: (A) the board subsequently certifies the pollution control facility; (B) the tangible personal property or services meet the requirements for exemption provided inSubsections 19-2-123(2) and 59-12-104(11), except for the certification requirement; and (C) the person files a claim for the refund with

the State Tax Commission within the lesser of: (I) three years after the day on which the pollution control facility is certified under Section 19-2- 125; or (II) six years after the day on which the person pays the tax under Title 59, Chapter 12, Sales and Use Tax Act; or (ii) is certified under Section 19-2-125, may

obtain a refund of the tax if: (A) the tangible personal property or services meet the requirements for exemption provided in Subsections 19-2-123(2) and 59-12-104(11); and (B) the person files a claim for the refund with the State Tax Commission within three years after the day on which the person pays the tax under Title 59, Chapter 12, Sales and Use Tax Act. (e) (i) If a person files a claim for a refund of taxes under Subsection (2)(d)(i) paid on a purchase of tangible personal property or services used in the construction of or incorporated into a pollution control facility that was not certifie d under Section 19-2-125 at the time of the purchase: (A) within 180 days after the day on which the board certifies the pollution control facility, interest shall accrue to the amount of the refund granted by the State Tax

Commission: (I) at the rate prescribed in Section 59-1-402;

and (II) beginning on the day on which the person pays the tax under Title 59, Chapter 12, Sales and Use Tax Act, for which the person is claiming a refund; or (B) more than 180 days after the day on which the board certifies the pollution control facility, interest shall be added to the amount of the refund granted by the

State Tax Commission: (I) at the rate prescribed in Section 59-1-402;

and (II) beginning 30 days after the day on which the person files the claim for a refund under Subsection (2)(d). (ii) If a person files a claim for a refund of taxes under Subsection (2)(d)(ii) paid on a purchase of tangible personal property or services used in the construction of or incorporated into a pollution control facility that was

certified under Section 19-2-125 at the time of the purchase, interest shall accrue to the amount of the refund granted by the State Tax Commission: (A) at the rate prescr ibed in Section 59-1-402;

and (B) beginning 30 days after the day on which the person files a claim for a refund under Subsection (2)(d). (3) (a) Each application shall: (i) be in a format prescribed by the board; and (ii) contain: (A) a description of the facility and materials incorporated in the facility; (B) the machinery and equipment; (C) the existing or proposed operational procedure; and (D) a statement of the purpose of pollution prevention, control, or reducti on served or to be served by the facility. (b) The board may require any further

information it finds necessa ry before issuance of a

certificate.



### 19-2-125

. Action on application for

certification.

(1) (a) The board shall certify the facility if, after consulting with the State Tax Commission, the board finds

that: (i) a pollution control facility or a part of a pollution control facility, for which application is made

under Section 19-2-124: (A) was or is to be erected, constructed, acquired, or installed; and (B) is designed and is being operated or will operate primarily to prevent, co ntrol, or reduce air or water pollution; and (ii) the applicant qualifies under Section 19-2-

124. (b) If one or more facilities constitute an operational unit, the board may certify those facilities under

one certificate. (2) (a) The board and the State Tax Commission shall act on an application under Section 19-2-124 before the 120th day after filing. (b) Failure of the board and the State Tax Commission to timely act constitutes automatic acceptance of the application and the board shall furnish a certificate to the applicant on demand.



### 19-2-126

. Revocation of certification

-- Grounds -- Procedure.

(1) (a) The board, after consulting with the State Tax Commission, may revoke the certification issued under Section 19-2-125 of any pollution control facility if it finds

that the: (i) certification was obtained by fraud or gross misrepresentation; or (ii) holder of the certificate has failed substantially to operate the facility for the purpose of, and to the extent necessary to prevent, control, or reduce air or water pollution as specified in the certificate. (b) A shutdown of the facility due to force majeure, including obsolescence , is not cause to revoke certification of any facility. (2) (a) The board shall provide notice of the revocation by issuing a not ice of agency action. (b) The holder of the certificate may obtain judicial review of the revocation. (c) The revocation is final and conclusive unless an appeal is taken. (d) If the revocation is affirmed on appeal,

revocation is final on the da te notice of revocation was received by the holder. (3) As soon as a revoca tion under this section is final, the board shall notify the State Tax Commission of

the revocation.(4) (a) If the certification of a pollution control facility is revoked, all prior ta x relief provided to the holder

because of the certificate is forfeited. (b) The State Tax Commission shall collect taxes not paid by the holder because of the tax relief provided the holder to the extent permitted by the applicable statute of

limitations.



### 19-2-127

. Rules for administering

certification for tax relief.

In addition to the powers granted it, the board may formulate, amend, or cancel rules establishing procedures for processing and evaluating applications for certification, establishing procedures for the issuance and revocation of certificates, and al l other matters pertaining to the board in administering certification for tax relief on pollution control facilities.

# Utah Administrative Rulemaking Act

Utah Code Title 63G, Ch apter 3 (May 12, 2009)

Utah Administrative Rulemaking Act

.............................................................................................................................. ................. 1

Title 63G. General Government.

.............................................................................................................................. .................... 1

Chapter 3. Utah Administrative Rulemaking Act. ................................................................................................................... 1

Part 1. General Provisions.

.............................................................................................................................. ..................... 1

63G-3-101. Title.

.............................................................................................................................. ................................ 1

63G-3-102. Definitions.

.............................................................................................................................. .................... 1 Part 2. Circumstances Requiring Rulema king - Status of Administrative Rules. ................................................................. 2

63G-3-201. When rulemaking is required. ...................................................................................................................... 2 63G-3-202. Rules having the effect of law. .................................................................................................................... 3 Part 3. Rulemaking Proceures.

.............................................................................................................................. ............... 3

63G-3-301. Rulemaking procedure.

.............................................................................................................................. .. 3 63G-3-302. Public hearings.

.............................................................................................................................. ............. 4 63G-3-303. Changes in rules.

.............................................................................................................................. ............ 4 63G-3-304. Emergency rulemaking procedure. .............................................................................................................. 5 63G-3-305. Agency review of rules -- Schedule of filings -- Limited exemption for certain rules. ................................ 5

Part 4. Division of Administrative Rules. ............................................................................................................................ 5

63G-3-401. Division of Administrative Ru les created -- Appointment of director. ........................................................ 5

63G-3-402. Division of Administ rative Rules -- Duties generally. ................................................................................. 6 63G-3-403. Repeal and reenactme nt of Utah Administrative Code. ............................................................................... 6 Part 5. Legislative Oversight.

.............................................................................................................................. ................. 7

63G-3-501. Administrative Rules Review Committee. ................................................................................................... 7 63G-3-502. Legislative reauthorization of agen cy rules -- Extension of rules by governor. ........................................... 8

Part 6. Judicial Review.

.............................................................................................................................. ......................... 8

63G-3-601. Interested parties -- Petition for agency action. ............................................................................................ 8 63G-3-602. Judicial challenge to administrative rules. ................................................................................................... 8 63G-3-603. Time for contesting a rule -- Statute of limitations. ..................................................................................... 9 Part 7. Official Compilation of Administrative Rules. ......................................................................................................... 9

63G-3-701. Utah Administrative Code as offi cial compilation of ru les -- Judicial notice. ............................................... 9

63G-3-702. Utah Administrative Code -- Organization -- Official compilation. .............................................................. 9



## Title 63G. General Government.

Chapter 3. Utah Administrative Rulemaking

Act.

Part 1. General Provisions.

63G-3-101. Title. This chapter is known as the "Utah Administrative Rulemaking Act."
Renumbered and Amended by C hapter 382, Laws of Utah 2008 General Session, effective May 5, 2008 (formerly Section 63-46a-1)

63G-3-102. Definitions. As used in this chapter: (1) "Administrative record" means information an agency relies upon when making a rule under this chapter including: (a) the proposed rule, chan ge in the proposed rule, and the rule analysis form; (b) the public comment received and recorded by the agency during the public comment period; (c) the agency's response to the public comment; (d) the agency's analysis of the public comment;

and (e) the agency's report of its decision-making

process. (2) "Agency" means each state board, authority, commission, institution, department, division, officer, or other state government entity other than the Legislature, its committees, the political subdivisions of the state, or the courts, which is authorized or required by law to make rules, adjudicate, grant or withhold li censes, grant or withhold relief from legal obligations, or perfo rm other similar actions or duties delegated by law. (3) "Bulletin" means the Utah State Bulletin. (4) "Catchline" means a short summary of each section, part, rule, or title of the code that follows the section, part, rule, or title reference placed before the text of the rule and serves the same function as boldface in legislation as

described in Section 68-3-13. (5) "Code" means the body of all effective rules as compiled and organized by th e division and entitled "Utah

Administrative Code." (6) "Director" means the director of the Division of

Administrative Rules.2 (7) "Division" means the Division of Administrative

Rules. (8) "Effective" means operative and enforceable. (9) (a) "File" means to submit a document to the division as prescribed by the division. (b) "Filing date" means the day and time the document is recorded as received by the division. (10) "Interested person" m eans any person affected by or interested in a proposed rule, amendment to an existing rule, or a nonsubstantive change made under Section 63G-3-

402. (11) "Order" means an agency action that determines the legal rights, duties, privileges, immunities, or other interests of one or more specific persons , but not a class of persons. (12) "Person" means any individual, partnership, corporation, association, govern mental entity, or public or private organization of any character other than an agency. (13) "Publication" or " publish" means making a rule available to the public by includ ing the rule or a summary of

the rule in the bulletin. (14) "Publication date" means the inscribed date of the

bulletin. (15) "Register" may include an electronic database. (16) (a) "Rule" means an agency's written statement

that: (i) is explicitly or implicitly required by state

or federal statute or other applicable law; (ii) implements or interprets a state or federal legal mandate; and (iii) applies to a class of persons or another

agency. (b) "Rule" includes the amendment or repeal of an existing rule. (c) "Rule" does not mean: (i) orders; (ii) an agency's written statement that applies only to internal manageme nt and that does not restrict the legal rights of a public class of persons or another agency; (iii) the governor's executive orders or proclamations; (iv) opinions issued by the attorney general's office; (v) declaratory rulings issued by the agency according to Section 63G-4-503 except as required by Section 63G-3-201; (vi) rulings by an agency in adjudicativeproceedings, except as required by Subsection 63G3-201(6); or (vii) an agency written statement that is in violation of any state or federal law. (17) "Rule analysis" means the format prescribed by the division to summarize and analyze rules. (18) "Small business" means a business employing fewer than 50 persons. (19) "Substantive change" means a change in a rule that affects the application or results of agency actions.
Renumbered and Amended by C hapter 382, Laws of Utah 2008 General Session, effective May 5, 2008 (formerly Section 63-46a-2) 

### Part 2. Circumstances Requiring Rulemaking -

Status of Administrative Rules.

63G-3-201. When rulemaking is required. (1) Each agency shall: (a) maintain a current version of its rules; and (b) make it available to the public for inspection during its regular business hours. (2) In addition to other rulemaking required by law, each agency shall make rules when agency action: (a) authorizes, requires, or prohibits an action; (b) provides or prohibits a material benefit; (c) applies to a class of persons or another agency;

and (d) is explicitly or implicitly authorized by statute. (3) Rulemaking is also required when an agency issues a written interpretation of a state or federal legal mandate. (4) Rulemaking is not required when: (a) agency action applies only to internal agency management, inmates or residents of a state correctional, diagnostic, or detention facili ty, persons under state legal custody, patients admitted to a state hospital, members of the state retirement system, or students enrolled in a state education institution; (b) a standardized agency manual applies only to

internal fiscal or administra tive details of governmental entities supervised under statute; (c) an agency issues policy or other statements that are advisory, informative, or descriptive, and do not conform to the requirements of Subsections (2) and (3);

or (d) an agency makes nonsubstantive changes in a rule, except that the agency shall file al l nonsubstantive changes in a rule with the division. (5) (a) A rule shall enumerate any penalty authorized by statute that may result from its violation, subject to Subsections (5)(b) and (c). (b) A violation of a rule may not be subject to the criminal penalty of a class C misdemeanor or greater offense, except as provide d under Subsection (5)(c). (c) A violation of a rule may be subject to a class C or greater criminal penalty under Subsection (5)(a)

when: (i) authorized by a specific state statute; (ii) a state law and programs under that law

are established in order for the state to obtain or maintain primacy over a federal program; or (iii) state civil or criminal penalties established by state statute regarding the program are equivalent to or less than corresponding federal civil or criminal penalties. (6) Each agency shall enact rules incorporating the principles of law not already in its rules that are established by final adjudicative decisions within 120 days after the

decision is announced in its cases. (7) (a) Each agency may enact a rule that incorporates by reference: (i) all or any part of another code, rule, or regulation that has been adopted by a federal agency, an agency or political subdivision of this state, an agency of another state, or by a nationally recognized organization or association;3 (ii) state agency implementation plans mandated by the fede ral government for participation in the federal program; (iii) lists, tables, illustrations, or similar materials that are subject to frequent change, fully described in the rule, an d are availabl e for public inspection; or (iv) lists, tables, illustrations, or similar

materials that the director determines are too expensive to reproduce in the administrative code. (b) Rules incorporating materials by reference

shall: (i) be enacted according to the procedures outlined in this chapter; (ii) state that the referenced material is incorporated by reference; (iii) state the date, issue, or version of the material being incorporated; and (iv) define specifically what material is incorporated by reference and identify any agency

deviations from it. (c) The agency shall identify any substantive changes in the material incorporated by reference by following the rulemaking procedures of this chapter. (d) The agency shall maintain a complete and current copy of the referenced material available for public review at the agency and at the division. (8) (a) This chapter is not intended to inhibit the exercise of agency discretion within the limits prescribed by statute or agency rule. (b) An agency may enact a rule creating a justified exception to a rule. (9) An agency may obtain assistance from the attorney general to ensure that its rules meet legal and constitutional requirements.
Amended by Chapter 347, Laws of Utah 2009 General Session, effective May 12, 2009 (formerly Section 63-46a-3)

63G-3-202. Rules having the effect of law. (1) An agency's written statement is a rule if it conforms

to the definition of a rule under Section 63G-3-102, but the

written statement is not enforceable unless it is made as a rule in accordance with the requirements of this chapter. (2) An agency's written statement that is made as a rule in accordance with the requirements of this chapter is

enforceable and has the effect of law.
Renumbered and Amended by C hapter 382, Laws of Utah 2008 General Session, effective May 5, 2008 (formerly Section 63-46a-3.5)



### Part 3. Rulemaking Procedures.

63G-3-301. Rulemaking procedure. (1) An agency authorized to make rules is also authorized to amend or repeal those rules. (2) Except as provided in Sections 63G-3-303 and 63G3-304, when making, amending, or repealing a rule agencies shall comply with: (a) the requirements of this section; (b) consistent procedures required by other statutes; (c) applicable fe deral manda tes; and (d) rules made by the division to implement this chapter. (3) Subject to the requiremen ts of this chapter, each agency shall develop and use flexible approaches in drafting

rules that meet the needs of the agency and that involve persons affected by the agency's rules. (4) (a) Each agency shall f ile its proposed rule and rule analysis with the division. (b) Rule amendments shall be marked with new language underlined and deleted language struck out. (c) (i) The division shall publish the information required under Subsection (8) on the rule analysis and the text of the proposed rule in the next issue of the

bulletin. (ii) For rule amendments, only the section or

subsection of the rule being amended need be printed. (iii) If the director determines that the rule is too long to publish, the director shall publish the rule analysis and shall publish the rule by reference to a copy on file with the division. (5) Prior to filing a rule with the division, the department head shall consid er and comment on the fiscal impact a rule may have on businesses. (6) If the agency reasonably expects that a proposed rule will have a measurable negative fiscal impact on small businesses, the agency shall c onsider, as allowed by federal law, each of the following methods of reducing the impact of

the rule on small businesses: (a) establishing less stringent compliance or reporting requirements for small businesses; (b) establishing less stringent schedules or deadlines for compliance or reporting requirements for small businesses; (c) consolidating or simplifying compliance or reporting requirements for small businesses; (d) establishing performan ce standards for small businesses to replace design or operational standards required in the proposed rule; and (e) exempting small businesses from all or any part of the requirements contained in the proposed rule. (7) If during the public comment period an agency receives comment that the proposed rule will cost small business more than one day's annual average gross receipts, and the agency had not previously performed the analysis in Subsection (6), the agency shall perform the analysis described in Subsection (6). (8) The rule analysis shall contain: (a) a summary of the rule or change; (b) the purpose of the rule or reason for the change; (c) the statutory authority or federal requirement for the rule; (d) the anticipated cost or savings to: (i) the state budget; (ii) local governments; (iii) small businesses; and (iv) persons other than small businesses, businesses, or local governmental entities; (e) the compliance cost for affected persons; (f) how interested persons may review the full text of the rule; (g) how interested persons may present their views on the rule;4 (h) the time and place of any scheduled public hearing; (i) the name and telephone number of an agency employee who may be contacted about the rule; (j) the name of the agency head or designee who authorized the rule; (k) the date on which the rule may become effective following the publ ic comment period; and (l) comments by the department head on the fiscal impact the rule may have on businesses. (9) (a) For a rule being repealed and reenacted, the rule analysis shall contain a summary that generally includes the following: (i) a summary of substantive provisions in the repealed rule which are eliminated from the enacted rule; and (ii) a summary of new substantive provisions appearing only in the enacted rule. (b) The summary required under this Subsection (9) is to aid in review and ma y not be used to contest any rule on the ground of noncompliance with the procedural requirements of this chapter. (10) A copy of the rule analysis shall be mailed to all persons who have ma de timely request of the agency for advance notice of its rulemaking proceedings and to any other person who, by statutory or federal mandate or in the judgment of the agency, should also receive notice. (11) (a) Following the publication date, the agency shall allow at least 30 days for public comment on the rule. (b) The agency shall review and evaluate all public comments submitted in writing within the time period under Subsection (11)(a) or pr esented at public hearings conducted by the agency within the time period under Subsection (11)(a). (12) (a) Except as provide d in Sections 63G-3-303 and 63G-3-304, a proposed rule becomes effective on any date specified by the agency that is no fewer than seven calendar days after the close of the public comment period under Subsection (11), nor more than 120 days after the publication

date. (b) The agency shall provide notice of the rule's effective date to the division in the form required by the

division. (c) The notice of effective date may not provide for an effective date prior to the date it is received by the

division. (d) The division shall publish notice of the

effective date of the rule in the next issue of the bulletin. (e) A proposed rule lapses if a notice of effective date or a change to a proposed rule is not filed with the

division within 120 da ys of publication. (13) (a) As used in th is Subsection (13), "initiate rulemaking proceedings" means the filing, for the purposes of publication in accordance with Subsection (4), of an agency's proposed rule that is required by state statute. (b) A state agency shall initiate rulemaking proceedings no later than 180 days after the effective date of the statutory provisi on that specifically requires the rulemaking, except under Subsection (13)(c). (c) When a statute is enacted that requires agency rulemaking and the affected agency already has rules in place that meet the statutory requirement, the agency shall submit the rules to the Administrative Rules Review Committee for review within 60 days after the statute requiring the ru lemaking takes effect. (d) If a state agency does not initiate rulemaking proceedings in accordance with the time requirements in Subsection (13)(b), the state agency shall appear before the legislative Administrative Rules Review Committee and provide the reasons for the delay.
Amended by Chapter 93, Laws of Utah 2009 General Session, effective May 12, 2009 (formerly Section 63-46a-4)

63G-3-302. Public hearings. (1) Each agency may hold a public hearing on a proposed rule, amendment to a rule , or repeal of a rule during the public comment period. (2) Each agency shall hold a public hearing on a proposed rule, amendment to a ru le, or repeal of a rule if: (a) a public hearing is re quired by state or federal mandate; (b) (i) another state agency, ten interested persons, or an interested association having not fewer than ten members request a public hearing; and (ii) the agency receives the request in writing not more than 15 days after the publication date of the proposed rule. (3) The agency shall hold the hearing: (a) before the rule becomes effective; and (b) no less than seven days nor more than 30 days after receipt of the request for hearing.
Renumbered and Amended by C hapter 382, Laws of Utah 2008 General Session, effective May 5, 2008 (formerly Section 63-46a-5)

63G-3-303. Changes in rules. (1) (a) To change a proposed rule already published in the bulletin, an agency shall file with the division: (i) the text of the changed rule; and (ii) a rule analysis c ontaining a description of the change and the information required by Section

63G-3-301. (b) A change to a proposed rule may not be filed more than 120 days after publication of the rule being changed. (c) The division shall publish the rule analysis for the changed rule in the bulletin. (d) The changed proposed rule and its associated proposed rule will become effective on a date specified by the agency, not less than 30 days or more than 120 days after publication of the la st change in proposed rule. (e) A changed proposed rule and its associated proposed rule lapse if a no tice of effective date or another change to a proposed rule is not filed with the division within 120 days of publ ication of the last change in proposed rule. (2) If the rule change is nonsubstantive: (a) the agency need not comply with the requirements of Subsection (1); and (b) the agency shall notify the division of the change in writing. (3) If the rule is effective, the agency shall amend the rule according to the procedur es specified in Section 63G-3-

301.5 Renumbered and Amended by C hapter 382, Laws of Utah 2008 General Session, effective May 5, 2008 (formerly Section 63-46a-6)

63G-3-304. Emergency rulemaking procedure. (1) All agencies shall comply with the rulemaking procedures of Section 63G-3-301 unless an agency finds that these procedures would: (a) cause an imminent peril to the public health, safety, or welfare; (b) cause an imminent budget reduction because of budget restraints or federal requirements; or (c) place the agency in violation of federal or state

law. (2) (a) When finding that its rule is excepted from regular rulemaking procedures by this section, the agency

shall file with the division: (i) the text of the rule; and (ii) a rule analysis that includes the specific reasons and justifications for its findings. (b) The division shall publish the rule in the bulletin as provided in Subsection 63G-3-301(4). (c) The agency shall notify interested persons as provided in Subsection 63G-3-301(10). (d) The rule becomes effective for a period not exceeding 120 days on the date of filing or any later date designated in the rule. (3) If the agency intends the rule to be effective beyond 120 days, the agency shall also comply with the procedures of

Section 63G-3-301.
Amended by Chapter 300, Laws of Utah 2008 General Session; and Renumbered and Amended by C hapter 382, Laws of Utah 2008 General Session, effective May 5, 2008 (formerly Section 63-46a-7)

63G-3-305. Agency review of rules -- Schedule of filings -- Limited exemption for certain rules. (1) Each agency shall review each of its rules within five years of the rule's original effective date or within five years of the filing of the last five-year review, whichever is later. Rules effective prior to 1992 need not be reviewed until

1997. (2) An agency may consider any substantial review of a rule to be a five-year review. If the agency chooses to consider a review a five-year review, it shall follow the procedures outlined in Subsection (3). (3) At the conclusion of its review, the agency shall file

a notice of review on or before the anniversary date indicating its intent to continue, am end, or repeal the rule. (a) If the agency continues the rule, it shall file a

statement which includes: (i) a concise explanation of the particular statutory provisions under which the rule is enacted and how these provisions authorize or require the rule; (ii) a summary of written comments received during and since the last five-year review of the rule from interested persons supporting or opposing the rule; and (iii) a reasoned justification for continuation of the rule, including reasons why the agency disagrees with comments in opposition to the rule, if any. (b) If the agency repeals the rule, it shall comply

with Section 63G-3-301. (c) If the agency amends and continues the rule, it shall comply with the requirements of Section 63G-3- 301 and file the statement required in Subsection (3)(a). (4) (a) The division shall publish the notice and

statement in the bulletin. (b) The division may schedule the publication of agency notices and statemen ts, provided that no notice and statement shall be published more than one year

after the review deadline established under Subsection (1). (5) The division shall notify an agency of rules due for review at least 180 days pr ior to the anniversary date. (6) If an agency finds that it will not meet the deadline established in Subsection (1): (a) the agency may file an extension prior to the anniversary date with the di vision indicating the reason for the extension; and (b) the division shall publish notice of the

extension in the next issue of the bulletin. (7) An extension permits the agency to file a notice no more than 120 days after the anniversary date. (8) If an agency fails to file a notice of review or extension on or before the date specified in the notice mandated in Subsection (5), the division shall: (a) publish a notice in the next issue of the bulletin that the rule has expired and is no longer enforceable; (b) remove the rule from the code; and (c) notify the agency that the rule has expired. (9) After a rule expires, an agency must comply with the requirements of Section 63G-3-301 to reenact the rule. (10) (a) Rules issued under the following provisions related to the Department of Workforce Services or Labor

Commission that are in effect on July 1, 1997, are not subject to the requirements of this section until July 1, 1998: (i) Title 34, Labor in General; (ii) Title 34A, Utah Labor Code; (iii) Title 35A, Utah Workforce Services Code; (iv) Title 40, Chapter 2, Coal Mines; and (v) Title 57, Chapter 21, Utah Fair Housing

Act. (b) Any rule described in Subsection (10)(a) that would have expired on or after July 1, 1997 but before July 1, 1998, expires July 1, 1998, unless for that rule the Department of Workforce Services or Labor

Commission files: (i) the notice of re view, described in Subsection (3); or (ii) an extension described in Subsection (6).
Renumbered and Amended by C hapter 382, Laws of Utah 2008 General Session, effective May 5, 2008 (formerly Section 63-46a-9)



### Part 4. Division of Administrative Rules.

63G-3-401. Division of Administrative Rules created -- Appointment of director. (1) There is created within the Department of

Administrative Services the Divi sion of Administrative Rules, to be administered by a director.6 (2) The director of administrative rules shall be appointed by the executive dire ctor with the approval of the

governor. Renumbered and Amended by C hapter 382, Laws of Utah 2008 General Session, effective May 5, 2008 (formerly Section 63-46a-9.5)

63G-3-402. Division of Admi nistrative Rules -- Duties generally. (1) The Division of Admi nistrative Rules shall: (a) establish all filing, publication, and hearing procedures necessary to make rules under this chapter; (b) record in a register the receipt of all agency rules, rule analysis forms, and notices of effective dates; (c) make the register, copies of all proposed rules, and rulemaking documents available for public inspection; (d) publish all proposed rule s, rule analyses, notices of effective dates, and review notices in the bulletin at least monthly, except that the division may publish the complete text of any proposed rule that the director determines is too long to print or too expensive to publish by reference to the text maintained by the division; (e) compile, format, number, and index all effective rules in an administrative code, and periodically publish that code and supplements or revisions to it; (f) publish a digest of all rules and notices contained in the most recent bulletin; (g) publish at least annually an index of all changes

to the administrative code and the effective date of each change; (h) print, or contract to print, all rulemaking publications the division de termines necessary to implement this chapter; (i) distribute without charge the bulletin and

administrative code to stat e-designated repositories, the Administrative Rules Review Committee, the Office of Legislative Research and Ge neral Counsel, and the two houses of the Legislature; (j) distribute without charge the digest and index to state legislators, agencies , political subdivisions on request, and the Office of Legislative Research and General Counsel; (k) distribute, at prices covering publication costs, all paper rulemaking publicatio ns to all other requesting persons and agencies; (l) provide agencies assistance in rulemaking; and (m) administer this chapter and require state agencies to comply with filing, publication, and hearing procedures. (2) The division may after notifying the agency make nonsubstantive changes to rules filed with the division or published in the bulletin or code by: (a) implementing a unifor m system of formatting, punctuation, capitalization, organization, numbering, and wording; (b) correcting obvious errors and inconsistencies in punctuation, capitalization, numbering, referencing, and wording; (c) changing a catchline to more accurately reflect the substance of each section, part, rule, or title; (d) updating or correcting annotations associated with a section, part, rule, or title; and (e) merging or determining priority of any amendment, enactment, or repeal to the same rule or section made effective by an agency. (3) In addition, the division may make the following nonsubstantive changes with the concurrence of the agency: (a) eliminate duplication within rules; (b) eliminate obsolete and redundant words; and (c) correcting defective or inconsistent section and paragraph structure in arrangement of the subject matter

of rules. (4) For nonsubstantive changes made in accordance with Subsection (2) or (3) after publ ication of the rule in the bulletin, the division shall publish a list of nonsubstantive changes in the bulletin. For each nonsubstantive change, the

list shall include: (a) the affected code citation; (b) a brief description of the change; and (c) the date the change was made. (5) All funds appropriated or collected for publishing the division's publications shall be nonlapsing.
Renumbered and Amended by C hapter 382, Laws of Utah 2008 General Session, effective May 5, 2008 (formerly Section 63-46a-10)

63G-3-403. Repeal and reenactment of Utah

Administrative Code. (1) When the director determines that the Utah Administrative Code requires extensive revision and reorganization, the division may repeal the code and reenact a new code according to the requirements of this section. (2) The division may: (a) reorganize, reformat , and renumber the code; (b) require each agency to review its rules and make any organizational or substantive changes according to the requirements of Section 63G-3-303; and (c) require each agency to prepare a brief summary of all substantive changes made by the agency. (3) The division may make nonsubstantive changes in the code by: (a) adopting a uniform system of punctuation, capitalization, numbering, and wording; (b) eliminating duplication; (c) correcting defective or inconsistent section and paragraph structure in arrangement of the subject matter of rules; (d) eliminating all obsol ete or redundant words; (e) correcting obvious erro rs and inconsistencies in punctuation, capitalization, numbering, referencing, and wording; (f) changing a catchline to more accurately reflect the substance of each section, part, rule, or title; (g) updating or correcting annotations associated with a section, part, rule, or title; and (h) merging or determining priority of any amendment, enactment, or repeal to the same rule or section made effective by an agency. (4) (a) To inform the public about the proposed code reenactment, the division shall publish in the bulletin: (i) notice of the code reenactment;7 (ii) the date, time, and place of a public hearing where members of the public may comment on the proposed reenactment of the code; (iii) locations where the proposed reenactment of the code may be reviewed; and (iv) agency summaries of substantive changes

in the reenacted code. (b) To inform the public about substantive changes in agency rules contained in the proposed reenactment, each agency shall: (i) make the text of their reenacted rules

available: (A) for public review during regular business hours; and (B) in an electronic version; and (ii) comply with the requirements of Subsection 63G-3-301(10). (5) The division shall hold a public hearing on the proposed code reenactment no fewer than 30 days nor more than 45 days after the public ation required by Subsection (4)(a). (6) The division shall distribute complete text of the proposed code reenactment without charge to: (a) state-designated repositories in Utah; (b) the Administrative Rules Review Committee;

and (c) the Office of Legislative Research and General

Counsel. (7) The former code is repealed and the reenacted code

is effective at noon on a date de signated by the division that is not fewer than 45 days nor more than 90 days after the publication date required by this section. (8) Repeal and reenactment of the code meets the requirements of Section 63G-3-305 for a review of all agency

rules.
Amended by Chapter 300, Laws of Utah 2008 General Session; and Renumbered and Amended by C hapter 382, Laws of Utah 2008General Session, effective May 5, 2008 (formerly Section 63-46a10.5)



### Part 5. Legislative Oversight.

63G-3-501. Administrative Rules Review Committee. (1) (a) There is created an Administrative Rules Review Committee of ten permanent members and four ex officio

members. (b) (i) The committee's permanent members shall be composed of five members of the Senate, appointed by the president of the Senate, and five members of the House, appointed by the spea ker of the House, with no more than three senators and three representatives from the same political party. (ii) The permanent members shall convene at

least once each month as a committee to review new agency rules, amendments to existing agency rules, and repeals of existing agency rules. Meetings may be suspended at the discretion of the

committee chairs. (iii) Members shall serve for two-year terms or until their successors are appointed. (iv) A vacancy exists whenever a committee member ceases to be a member of the Legislature, or when a member resigns from the committee. Vacancies shall be filled by the appointing authority, and the replacement shall serve out the unexpired term. (c) When the committee reviews existing rules, the committee's permanent members shall invite the Senate and House chairmen of the standing committee and the

Senate and House chairm en of the appropriation subcommittee that have jurisdiction over the agency whose existing rules are being reviewed to participate as nonvoting, ex officio memb ers with the committee. (d) Three representatives and three senators from the permanent members are a quorum for the transaction of business at any meeting. (2) Each agency rule as defined in Section 63G-3-102 shall be submitted to the committee at the same time public notice is given under Section 63G-3-301. (3) (a) The committee shall exercise continuous oversight of the process of rulemaking. (b) The committee shall examine rules submitted by each agency to determine: (i) whether or not they are authorized by

statute; (ii) whether or not they comply with legislative intent; (iii) their impact on the economy and the government operations of the state and local political subdivisions; and (iv) their impact on affected persons. (c) To carry out these duties, the committee may examine any other issues that it considers necessary. The committee may also notify and refer rules to the chairmen of the interim committee which has jurisdiction over a particular agency when the committee determines that an issue involved in an agency's rules may be more appropriately addressed by that committee. (d) In reviewing the rules, the committee shall follow generally accepted pr inciples of statutory

construction. (4) The committee may request that the Office of the Legislative Fiscal Analyst prepare a fiscal note on any rule. (5) In order to accomplish its oversight functions, the committee has all the powers granted to legislative interim

committees as set forth in Section 36-12-11. (6) (a) The committee may prepare written findings of its review of each rule and may include any recommendations, including legislative action. (b) The committee shall provide to the agency that

enacted the rule: (i) its findings, if any; and (ii) a request that the agency notify the committee of any changes it makes in the rule. (c) The committee shall provide its findings to any member of the Legislature and to any person affected by the rule who requests the findings. (d) The committee shall provide its findings to the presiding officers of both the House and the Senate, Senate and House chairs of the standing committee, and

the Senate and House chai rs of the Appropriation Subcommittee that have jurisdiction over the agency whose rules are the subject of the findings.8 (7) (a) The committee may submit a report on its review of state agency rules to each member of the Legislature at each regular session. (b) The report shall include: (i) the findings and re commendations made by the committee under Subsection (6); (ii) any action taken by an agency in response to committee recommendations; and (iii) any recommendations by the committee for legislation.
Renumbered and Amended by C hapter 382, Laws of Utah 2008 General Session, effective May 5, 2008 (formerly Section 63-46a-11)

63G-3-502. Legislative reauthorization of agency rules -- Extension of rules by governor. (1) All grants of rulemaking power from the Legislature to a state agency in any statute are made subject to the provisions of this section. (2) (a) Except as provided in Subsection (2)(b), every agency rule that is in effect on February 28 of any calendar year expires on May 1 of that year unless it has been reauthorized by the Legislature. (b) Notwithstanding the provisions of Subsection (2)(a), an agency's rules do not expire if: (i) the rule is explicitly mandated by a federal law or regulation; or (ii) a provision of Utah's constitution vests the agency with specific constitutional authority to regulate. (3) (a) The Administrative Rules Review Committee shall have omnibus legislation prepared for consideration by the Legislature during its annual general session. (b) The omnibus legislation shall be substantially in the following form: "All rules of Utah state agencies are reauthorized except for the following:". (c) Before sending the legislation to the governor for the governor's action, the Administrative Rules Review Committee may send a letter to the governor and to the agency explaining specifically why the committee believes any rule shoul d not be reauthorized. (d) For the purpose of this section, the entire rule, a single section, or any complete paragraph of a rule may be excepted for reauthorization in the omnibus legislation considered by the Legislature. (4) The Legislature's reauthorization of a rule by legislation does not constitute le gislative approval of the rule, nor is it admissible in any proceeding as evidence of legislative intent. (5) (a) If an agency believes that a rule that has not been reauthorized by the Legislature or that will be allowed to expire should continue in full force and effect and is a rule within their authorized rulemaking power, the agency may seek the governor's declaration extending the rule beyond the expiration date. (b) In seeking the extension, the agency shall submit a petition to the gove rnor that affirmatively

states: (i) that the rule is necessary; and (ii) a citation to the source of its authority to

make the rule. (c) (i) If the governor finds that the necessity does exist, and that the agency has the authority to make the rule, the governor may declare the rule to be extended by publishing that declaration in the Administrative Rules Bulletin on or before April 15 of that year. (ii) The declaration shall set forth the rule to be extended, the reasons the extension is necessary, and a citation to the source of the agency's authority

to make the rule. (d) If the omnibus bill required by Subsection (3) fails to pass both houses of the Legislature or is found to have a technical legal defect preventing reauthorization of administrative rules intended to be reauthorized by the Legislature, the governor ma y declare all rules to be extended by publishing a single declaration in the

Administrative Rules Bulletin on or before June 15 without meeting requirements of Subsections (5)(b) and (c).
Renumbered and Amended by C hapter 382, Laws of Utah 2008General Session, effective May 5, 2008 (formerly Section 63-46a11.5)



### Part 6. Judicial Review.

63G-3-601. Interested parties -- Petition for agency

action. (1) As used in this s ection, "initiate rulemaking proceedings" means the filing, for the purposes of publication

in accordance with Subsection 63G-3-301(4), of an agency's proposed rule to implement a petition for the making, amendment, or repeal of a rule as provided in this section. (2) An interested person may petition an agency to request the making, amendmen t, or repeal of a rule. (3) The division shall prescribe by rule the form for petitions and the procedure for their submission, consideration, and disposition. (4) A statement shall accompany the proposed rule, or proposed amendment or repeal of a rule, demonstrating that the proposed action is within the jurisdiction of the agency and appropriate to the powers of the agency. (5) Within 60 days after submission of a petition, the agency shall either deny the petition in writing, stating its reasons for the denial, or initiate rulemaking proceedings. (6) (a) If the petition is submitted to a board that has been granted rulemaking authority by the Legislature, the board shall, within 45 days of the submission of the petition, place the petition on it s agenda for review. (b) Within 80 days of the submission of the petition, the board shall either: (i) deny the petition in writing stating its reasons for denial; or (ii) initiate ru lemaking proceedings. (7) If the agency or board has not provided the petitioner written notice that the agency has denied the petition or initiated rulemaking proceedings within the time limitations specified in Subsection (5) or (6) respectively, the petitioner may seek a writ of mandamus in state district court.
Renumbered and Amended by Chapter 382, Laws of Utah 2008 General Session, effective May 5, 2008 (formerly Section 63-46a-12)

63G-3-602. Judicial challeng e to administrative rules. (1) (a) Any person aggrieved by a rule may obtain judicial review of the rule by filing a complaint with the county clerk in the district court where the person resides or in the district court in Salt Lake County.9 (b) Any person aggrieved by an agency's failure to comply with Section 63G-3-201 may obtain judicial review of the agency's failure to comply by filing a complaint with the clerk of the district court where the person resides or in the dist rict court in Salt Lake County. (2) (a) Except as provided in Subsection (2)(b), a person seeking judicial review under this section shall exhaust that person's administrative remedies by complying with the requirements of Section 63G-3-601 before filing the complaint. (b) When seeking judicial review of a rule, the person need not exhaust that person's administrative

remedies if: (i) less than six months has passed since the date that the rule became effective and the person

had submitted verbal or written comments on the rule to the agency during the public comment period; (ii) a statute granting rulemaking authority expressly exempts rules made under authority of that statute from compliance with Section 63G-3- 601; or (iii) compliance with Section 63G-3-601 would cause the person irreparable harm. (3) (a) In addition to the information required by the Utah Rules of Civil Procedure, a complaint filed under this

section shall contain: (i) the name and mailing address of the plaintiff; (ii) the name and mailing address of the defendant agency; (iii) the name and mailing address of any other party joined in the action as a defendant; (iv) the text of the rule or proposed rule, if

any; (v) an allegation that the person filing the complaint has either exhausted the administrative remedies by complying with Section 63G-3-601 or met the requirements for waiver of exhaustion of administrative remedies established by Subsection (2)(b); (vi) the relief sought; and (vii) factual and lega l allegations supporting the relief sought. (b) (i) The plaintiff shall serve a summons and a copy of the complaint as required by the Utah Rules of

Civil Procedure. (ii) The defendants shall file a responsive pleading as required by the Utah Rules of Civil

Procedures. (iii) The agency shall file the administrative record of the rule, if any, with its responsive pleading. (4) The district court may grant relief to the petitioner by: (a) declaring the rule invalid, if the court finds that: (i) the rule violates c onstitutional or statutory law or the agency does not have legal authority to make the rule; (ii) the rule is not supported by substantial evidence when viewed in light of the whole administrative record; or (iii) the agency did not follow proper rulemaking procedure; (b) declaring the rule nonapplicable to the petitioner; (c) remanding the matter to the agency for compliance with proper rulema king procedures or further fact-finding; (d) ordering the agency to comply with Section 63G-3-201; (e) issuing a judicial stay or injunction to enjoin the agency from illegal action or action that would cause irreparable harm to the petitioner; or (f) any combination of Subsections (4)(a) through (e). (5) If the plaintiff meets the requirements of Subsection (2)(b), the district court may review and act on a complaint

under this section whether or no t the plaintiff has requested the agency review under Section 63G-3-601.
Renumbered and Amended by C hapter 382, Laws of Utah 2008General Session, effective May 5, 2008 (formerly Section 63-46a12.1)

63G-3-603. Time for contesting a rule -- Statute of

limitations. (1) A proceeding to contest any rule on the ground of noncompliance with the proced ural requirements of this chapter shall commence within two years of the effective date

of the rule. (2) A proceeding to contest any rule on the ground of not being supported by substantia l evidence when viewed in light of the whole administrative record shall commence within four years of the effective date of the challenged

action. (3) A proceeding to contest any rule on the basis that a change to the rule made under Subsection 63G-3-402(2) or (3) substantively changed the ru le shall be commenced within two years of the date the change was made.
Renumbered and Amended by C hapter 382, Laws of Utah 2008 General Session, effective May 5, 2008 (formerly Section 63-46a-14)



### Part 7. Official Compil ation of Administrative

Rules.

63G-3-701. Utah Administrative Code as official compilation of rules -- Judicial notice.

The code shall be received by all the judges, public officers, commissions, and departments of the state government as evidence of the administrative law of the state of Utah and as an authorized compilation of the

administrative law of Utah. Al l courts shall take judicial notice of the code and its provisions.
Renumbered and Amended by C hapter 382, Laws of Utah 2008 General Session, effective May 5, 2008 (formerly Section 63-46a-16)

63G-3-702. Utah Administrative Code -- Organization -- Official compilation. (1) The Utah Administrative Code shall be divided into three parts: (a) titles, whose number shall begin with "R"; (b) rules; andUtah Administrative Rulemaki ng Act, 2009 Page 10

10 (c) sections. (2) All sections contained in the code are referenced by a three-part number indicating its location in the code. (3) The division shall maintain the official compilation of the code and is the state-designated repository for administrative rules. If a dispute arises in which there is more than one version of a rule, the latest effective version on file with the division is considered the correct, current version.
Renumbered and Amended by C hapter 382, Laws of Utah 2008 General Session, effective May 5, 2008 (formerly Section 63-46a-9.6)

NOTE: Source http://le.utah.gov /~code/TITLE 63G/63G03.zip accessed 07/02/2009. Legislative action information added by the Division of Administrative Rules based on information from HistoryInfo.txt provided by Legislative Research and General Counsel, 07/02/2009.

## Administrative Services

August 1, 2009 Utah Administrative Code - 1 - R15. Administrative Services,
Administrative Rules.
R15-1. Administrative Rule Hearings. R15-1-1. Authority. (1) This rule establishes procedures and
standards for administrative rule hearings as required by Subsection 63G-3-402(1)(a). (2) The procedures of
this rule constitute the minimum requirements for mandatory administrative rule hearings. Additional procedures may be required to comply with any other governing statute, federal law, or federal regulation.

R15-1-2. Definitions. (1) Terms used in this
rule are defined in Section

63G-3-102. (2) In addition: (a) "hearing" means an administrative rule hearing;

and (b) "officer" means an administrative rule hearing
officer.

R15-1-3. Purpose. (1) The purpose of this rule is to provide: (a) procedures for agency hearings on proposed
administrative rules or rules changes, or on the need for a rule or change; (b) opportunity for public comment on rules; and (c) opportunity for agency response to public

concerns about rules.

R15-1-4. When Agencies Hold Hearings. (1) Agencies shall hold hearings as required by Subsection 63G-3-302(2). (2) Agencies may hold hearings: (a) during the public comment period on a proposed rule, after its publication in the bulletin and prior to its effective date; (b) before initiating rulemaking procedures under Title 63G, Chapter 3, to promote public input prior to a rule's publication; (c) during a regular or extraordinary meeting of a state board, council, or commission, in order to avoid separate and additional meetings; or (d) to hear any public petition for a rule change as provided by Section 63G-3-601. (3) Voluntary hearings, as described in this section, follow the procedures prescribed by this rule or any other procedures the agency may provide by rule. (4) Mandatory hearings, as described in this section, follow the procedures prescribed by this rule and any additional requirements of

state or federal law. (5) If an agency holds a mandatory hearing under the procedures of this rule during the public comment period
described in Subsection 63G-3- 301(6), no second hearing is required for the purpose of

comment on the same rule or change considered at the first hearing.

R15-1-5. Hearing Procedures. (1) Notice. (a) An agency shall provide notice of a hearing by: (i) publishing the hearing date, time, place, and subject in the bulletin; (ii) mailing copies of

## Administrative Services

August 1, 2009 Utah Administrative Code - 2 - the notice directly to persons who have petitioned for a hearing or rule changes under
Section 63G-3-302 or 63G-3- 601, respectively; and (iii) posting for at least 24 hours in a place in the agency's offices which is frequented by the public. (b) If a rules hearing becomes mandatory after the agency has published the proposed rule in the bulletin, the agency shall notify in writing persons requesting the hearing of the time and place. (c) An agency may provide additional notice of a hearing, and shall give further notice as may otherwise be required by law. (2) Hearing Officer. (a) The agency head shall appoint as hearing officer a person qualified to conduct fairly the hearing. (b) No restrictions apply to this appointment except the officer shall know rulemaking procedure. (c) However, if a state board, council, or commission is responsible for agency rulemaking, and holds a hearing, a member or the body's designee may be the hearing officer. (3) Time. The officer shall open the hearing at the announced time and place and permit comment for a minimum of one hour. The hearing may
be extended or continued to another day as necessary in the judgment of the officer. (4) Comment. (a) At the opening of the hearing, the officer shall explain the subject and purpose of the hearing and invite orderly, germane comment from all persons in attendance. The officer may set time limits for speakers and shall ensure equitable use
of time. (b) The agency shall have a representative at the hearing, other than the officer, who is familiar with
the rule at issue and who can respond to requests for information by those in

attendance. (c) The officer shall
invite written comment to be submitted at the hearing or after the hearing, within a
reasonable time. Written

comment shall be attached to the hearing minutes. (d) The officer shall conduct the hearing as an open, informal, orderly, and informative meeting. Oaths, cross-examination, and rules of evidence are not required. (5) The Hearing Record. (a) The officer shall cause to be recorded the name, address, and relevant affiliation of all persons speaking at the hearing, and
cause an electronic or mechanical verbatim recording of the hearing to be made, or make a brief summary, of their

remarks. (b) The hearing record consists of a copy of the proposed rule or rule change, submitted written comment, the hearing recording or summary, the list of persons speaking at the hearing, and other pertinent documents as determined by the agency. (c) The hearing officer shall, as soon as practicable, assemble the hearing record and transmit it to the agency
for consideration. (d) The hearing record shall be kept with and as part

## Administrative Services

August 1, 2009 Utah Administrative Code - 3 - of the rule's administrative
record in a file available at the agency offices for public inspection.

R15-1-8. Decision on an Issue Regarding Rulemaking

Procedure. (1) When a hearing issue requires a decision regarding rulemaking procedure, the
officer shall submit a written request for a decision to the
director as soon as practicable after, or after recessing, the hearing, as provided in Section R15-5-6. The director shall reply to the agency head as provided in Subsection R15-5-6(2). The
director's decision shall be included in the hearing

record.

R15-1-9. Appeal and Judicial
Review. (1) Persons may appeal the decision of the agency head or the division by petitioning the district court for judicial review as provided by law.

KEY: administrative law, government hearings

Date of Enactment or Last
Substantive Amendment: June
1, 1996
Notice of Continuation: September 29, 2005 Authorizing, and Implemented or Interpreted Law: 63G-3-402

R15-2. Public Petitioning for Rulemaking. R15-2-1. Authority. As required by Subsection 63G-3-601(2), this rule prescribes the form and procedures for submission, consideration, and disposition of petitions requesting the making, amendment, or repeal
of an administrative rule.

R15-2-2. Definitions. (1) Terms used in this
rule are defined in Section

63G-3-102. (2) Other terms are
defined as follows: (a) "rule change" means: (i) making a new rule; (ii) amending, repealing, or repealing and reenacting an existing rule; (iii) amending a proposed rule further by filing a change in proposed rule under the provisions of Section 63G-3-303; (iv) allowing a proposed (new, amended, repealed, or repealed and reenacted) rule or change in proposed rule to lapse; or (v) any combination of

the above. (b) "petitioner" means an interested person who submits a petition to an agency pursuant to Section
63G-3-601 and this rule.

R15-2-3. Petition Procedure. (1) The petitioner shall send the petition to the head of the agency authorized by law to make the rule change requested. (2) The agency receiving the petition shall stamp the petition with the date of receipt.

R15-2-4. Petition Form. The petition shall: (a) be clearly designated "petition for a rule change"; (b) state the petitioner's name; (c) state the petitioner's interest in the

## Administrative Services

August 1, 2009 Utah Administrative Code - 4 - rule, including relevant affiliation, if any; (d) include a statementas required by Subsection 63G3-601(4) regarding the requested rule change; (e) state the approximate wording of the requested rule change; (f) describe the reason for the rule change; (g) include an address,
an E-mail address when available, and telephone where the petitioner can be reached during regular business hours;

and (h) be signed by the petitioner.

R15-2-5. Petition Consideration And Disposition. (1) The agency head or designee shall: (a) review and consider the petition; (b) write a response to the petition stating: (i) that the petition is denied and reasons for denial,

or (ii) the date when the agency is initiating a rule change consistent with the intent of the petition; and (c) send the response to the petitioner within the timeframe provided by Section 63G3-601. (2) The petitioned agency may, within the timeframe provided by Section 63G3-601, interview the petitioner, hold a public hearing on the petition, or take any action the agency, in its judgment, deems necessary to provide the petition due
consideration. (3) The agency shall retain the petition and a copy of the agency's response as part of the administrative

record. (4) The agency shall mail copies of its decision to all persons who petitioned for a rule change.

KEY: administrative law

Date of Enactment or Last
Substantive Amendment: December 25, 2006
Notice of Continuation: September 29, 2005 Authorizing, and Implemented or Interpreted Law: 63G-3-601

R15-3. Definitional
Clarification of
Administrative Rule. R15-3-1. Authority, Purpose,
and Definitions. (1) This rule is
authorized under Subsection 63G-3-402(1) which requires
the division to administer the Utah Administrative Rulemaking Act, Title 63G, Chapter 3. (2) This rule clarifies when rulemaking is required, and requirements for incorporation by reference
within rules. (3) Terms used in this
rule are defined in Section

63G-3-102.

R15-3-2. Agency Discretion. (1) A rule may restrict agency discretion to prevent agency personnel from exceeding their scope of employment, or committing arbitrary action or application of standards, or to provide due process for persons affected by agency
actions. (2) A rule may authorize agency discretion that sets limits, standards, and scope of employment within which a range of actions may be

## Administrative Services

August 1, 2009 Utah Administrative Code - 5 - applied by agency personnel. A rule may also establish criteria for granting exceptions to the standards or procedures of the rule when, in the judgment of authorized personnel, documented
circumstances warrant. (3) An agency may have written policies which broadly prescribe goals and guidelines. Policies are not rules unless they meet the
criteria for rules set forth under Section 63G-3-201(2). (4) Within the limits prescribed by Sections 63G-3- 201 and 63G-3-602, an agency has full discretion regarding
the substantive content of its
rules. The division has authority over nonsubstantive
content under Subsections 63G3-402(2) and (3), and 63G-3- 403(2) and (3), rulemaking procedures, and the physical

format of rules for compilation in the Utah
Administrative Code.

R15-3-3. Use of Incorporation by Reference in Rules. (1) An agency incorporating materials by reference as permitted under Subsection 63G-3-201(7) shall comply with the following

standards: (a) The rule shall state specifically that the cited material is "incorporated by

reference." (b) If the material contains options, or is modified in its application, the options selected and
modifications made shall be
stated in the rule. (c) If the incorporated material is substantively changed at a later time, and the agency intends to enforce the revised material, the agency shall amend its rule through rulemaking procedures to incorporate by reference any applicable changes as soon as practicable. (d) In accordance with Subsection 63G-3-201(7)(c), an agency shall describe substantive changes that appear in the materials incorporated by reference as part of the "summary of rule or change" in the rule analysis. (2) An agency shall comply with copyright requirements when it provides the division a copy of material incorporated by

reference.

R15-3-4. Computer-Prohibited
Material. (1) All rules shall be in a format that permits their compatibility with the division's computer system and compilation into the Utah
Administrative Code. (2) Rules may not contain maps, charts, graphs, diagrams, illustrations, forms, or similar material. (3) The division shall issue and provide to agencies
instructions and standards for formatting rules.

R15-3-5. Statutory Provisions that Require Rulemaking
Pursuant to Subsection 63G-3- 301(13). For the purposes of Subsection 63G-3-301(13), the phrase "statutory provision that requires the rulemaking"
means a state statutory provision that explicitly mandates rulemaking.

KEY: administrative law

## Administrative Services

August 1, 2009 Utah Administrative Code - 6 - Date of Enactment or Last Substantive Amendment: April
30, 2007
Notice of Continuation: September 29, 2005 Authorizing, and Implemented or Interpreted Law: 63G-3- 201; 63G-3-301; 63G-3-402

R15-4. Administrative Rulemaking Procedures. R15-4-1. Authority and Purpose. (1) This rule establishes procedures for filing and publication of agency rules under Sections63G-3-301, 63G-3-303, and 63G3-304, as authorized under Subsection 63G-3-402(1). (2) The procedures of
this rule constitute minimum requirements for rule filing and publication. Other governing statutes, federal laws, or federal regulations may require additional rule filing and publication procedures.

R15-4-2. Definitions. (1) Terms used in this
rule are defined in Section

63G-3-102. (2) Other terms are
defined as follows: (a) "Anniversary date"
means the date that is five years from the original effective date of the rule, or the date that is five years from the date the agency filed
with the division the most recent five-year reviewrequired under Subsection 63G3-305(3), whichever is sooner. (b) "Digest" means the Utah State Digest that
summarizes the content of the bulletin as required by Subsection 63G-3-402(1)(f); (c) "Codify" means the process of collecting and arranging administrative rules systematically in the Utah Administrative Code, and includes the process of verifying that each amendment was marked as required under Subsection 63G-3-301(2)(b); (d) "Compliance cost" means expenditures a regulated person will incur if a rule or change is made effective; (e) "Cost" means the aggregated expenses persons as a class affected by a rule will incur if a rule or change is made effective; (f) "eRules" means the
Division's administrative rule filing application that agencies use to file rules and notices; (g) "Savings" means: (i) an aggregated monetary amount that will no longer be incurred by persons as a class if a rule or change is made effective; (ii) an aggregated monetary amount that will be
refunded or rebated if a rule or change is made effective; (iii) an aggregated monetary amount of anticipated revenues to be generated for state budgets, local governments, or both if a rule or change is made effective;

or (iv) any combination of these aggregated monetary

amounts. (h) "Unmarked change" means a change made to rule

text that was not marked as required by Subsection 63G-3- 301(2)(b).

R15-4-3. Publication Dates
and Deadlines. (1) For the purposes of Subsections 63G-3-301(2) and

## Administrative Services

August 1, 2009 Utah Administrative Code - 7 - 63G-3-303(1), an agency shall
file its rule and rule analysis by 11:59:59 p.m. on the fifteenth day of the month for publication in the bulletin and digest issued on the first of the next month, and by 11:59:59 p.m. on the first day of the month for publication on the fifteenth

of the same month. (a) If the first or fifteenth day is a Saturday, or a Tuesday, Wednesday, Thursday, or Friday holiday, the agency shall file the rule and rule analysis by 11:59:59 p.m. on the previous regular business day. (b) If the first or fifteenth day is a Sunday or Monday holiday, the agency
shall file the rule and rule analysis by 11:59:59 p.m. on the next regular business day. (2) For all purposes,
the official date of publication for the bulletin and digest shall be the first and fifteenth days of each

month.

R15-4-4. Thirty-day Comment Period for a Proposed Rule and a Change in Proposed Rule. (1) For the purposes of
Sections 63G-3-301 and 63G-3- 303, "30 days" shall be computed by: (a) counting the day after publication of the rule as the first day; and (b) counting the thirtieth consecutive day after the day of publication as the thirtieth day, unless (c) the thirtieth consecutive day is a Saturday, Sunday, or holiday, in which event the thirtieth day is the next regular business day. R15-4-5a. Notice of the Effective Date for a Proposed

Rule. (1)(a) Pursuant to Subsection 63G-3-301(9), upon expiration of the comment period designated on the rule analysis and filed with the rule, and before expiration of 120 days after publication of a proposed rule, the agency proposing the rule shall notify the division of the
date the rule is to become
effective and enforceable. (b) The agency shall notify the division after determining that the proposed rule, in the form published,
shall be the final form of the rule, and after informing the division of any nonsubstantive changes in the rule as provided for in Section R15-4-

6. (2)(a) The agency shall notify the division by filing
with the division a Notice of Effective Date form using

eRules. (b) If the eRules Notice
of Effective Date form is unavailable to the agency, the agency may notify the division by any other form of written communication clearly identifying the proposed rule, stating the date the rule was
filed with the division or published in the bulletin, and stating its effective date. (3) The date designated
as the effective date shall

be: (a) at least seven days after the comment period specified on the rule analysis; or (b) if the agency formally extends the comment period for a proposed rule by publishing a subsequent notice

## Administrative Services

August 1, 2009 Utah Administrative Code - 8 - in an issue of the bulletin, at least seven days after the extended comment period. (4) The division shall publish notice of the
effective date in the next
issue of the bulletin. There is no publication deadline for
a notice of effective date for a proposed rule, nor requirement that it be published prior to the
effective date.

R15-4-5b. Notice of the Effective Date for a Change in Proposed Rule. (1)(a) Upon expiration of the 30-day period required by Section 63G-3-303, and before expiration of the 120th day after publication of a change in proposed rule, the agency promulgating the rule shall notify the division of
the date the rule is to become
effective and enforceable. (b) The agency shall notify the division after determining that the rule text as published is the final form of the rule, and after informing the division of any nonsubstantive changes in the rule as provided for in
Section R15-4-6. (2)(a) The agency shall notify the division by filing
with the division a Notice of Effective Date form using

eRules. (b) If the eRules Notice
of Effective Date form is unavailable to the agency, the agency may notify the division by any other form of written communication clearly identifying the change in proposed rule and any rules upon which the change in proposed rule is dependent, stating the date the rules were filed with the division or published in the bulletin, and stating the effective

date. (3) The date designated
as the effective date shall

be: (a) at least 30 days after the publication date of the rule in the bulletin, or (b) if the agency designated a comment period, at least seven days after a comment period designated by the agency on the rule analysis or formally extended by publication of a subsequent
notice in the bulletin. (4) The division shall publish notice of the
effective date in the next
issue of the bulletin. There is no publication deadline for
the notice of effective date for a change in proposed rule, nor requirement that it be published prior to the
effective date.

R15-4-6. Nonsubstantive Changes in Rules. (1) Pursuant to Subsections 63G-3-201(4)(d) and 63G-3-303(2), for the purpose of making rule changes that are grammatical or do not materially affect the application or outcome of agency procedures and standards, agencies shall comply with the procedures of
this section. (2) The agency proposing a change shall determine if the change is substantive or nonsubstantive according to
the criteria cited in Subsection R15-4-6(1). (a) The agency may seek the advice of the Attorney General or the division, but the agency is responsible for

## Administrative Services

August 1, 2009 Utah Administrative Code - 9 - compliance with the cited
criteria. (3) Without complying with regular rulemaking procedures, an agency may make nonsubstantive changes in: (a) proposed rules already published in the bulletin and digest but not made effective, or (b) rules already
effective. (4) To make a nonsubstantive change in a rule, the agency shall: (a) notify the division by filing with the division the form designated for nonsubstantive changes; (b) include with the
notice the rule text to be changed, with changes marked as required by Section R15-4- 9; and (c) include with the notice the name of the agency head or designee authorizing the change. (5) A nonsubstantive change becomes effective on
the date the division makes the change in the Utah
Administrative Code. (6) The division shall
record the nonsubstantive change and its effective date
in the administrative rules register.

R15-4-7. Substantive Changes in Proposed Rules. (1) Pursuant to Section 63G-3-303, agencies shall comply with the procedures of this section when making a substantive change in a proposed rule. (a) The procedures of this section apply if: (i) the agency determines a change in the rule is necessary; (ii) the change is
substantive under the criteria of Subsection 63G-3-102(19); (iii) the rule was published as a proposal in the bulletin and digest; and (iv) the rule has not
been made effective under theprocedures of Subsection 63G3-303(1)(d) and Section R15-4-

5. (b) If the rule is already effective, the agency shall comply with regular rulemaking procedures. (2) To make a substantive change in a proposed rule, the agency
shall file with the division: (a) a rule analysis, marked to indicate the agency intends to change a rule already published, and describing the change and reasons for it; and (b) a copy of the proposed rule previously published in the bulletin marked to show only those changes made since the proposed rule was previously published as described in
Section R15-4-9. (3) The division shall publish the rule analysis in
the next issue of the bulletin, subject to the publication deadlines of
Section R15-4-3. The division may also publish the changed

text of the rule. (4) The agency may make a change in proposed rule effective by following the requirements of Section R15-4- 5, or may further amend the rule by following the procedures of Sections R15-4-6

or R15-4-7.

R15-4-8. Temporary 120-day

Rules.

## Administrative Services

August 1, 2009 Utah Administrative Code - 10 - (1) Pursuant to Section 63G-3-304, for the purpose of filing a temporary rule, an agency shall comply with the procedures of this section. (2) The agency proposing a temporary rule shall
determine if the need for the rule complies with the
criteria of Subsection 63G-3- 304(1). (a) The division interprets the criteria of Subsection 63G-3-304(1) to include under "welfare" any
substantial material loss to the classes of persons or agencies the agency is mandated to regulate, serve, or protect. (3) The agency shall use the same procedures for filing and publishing a temporary rule as for a permanent rule, except: (a) the rule shall
become effective and enforceable on the day and hour it is recorded by the division unless the agency designates a later effective date on the rule analysis; (b) no comment period is

necessary; (c) no public hearing is necessary; and (d) the rule shall expire 120 days after the
rule's effective date unless the filing agency notifies the division, on the form or by memorandum, of an earlier expiration date. (4) A temporary rule is separate and distinct from a rule filed under regular rulemaking procedures, though the language of the two rules may be identical. To make a temporary rule permanent, the agency shall propose a separate rule for regular rulemaking. (5) When a temporary rule and a similar regular
rule are in effect at the same time, any conflict between the provisions of the two are
resolved in favor of the rule
with the most recent effective date, unless the agency designates otherwise as part of the rule analysis. (6) A temporary rule has

the full force and effect of a permanent rule while in effect, but a temporary rule
is not codified in the Utah
Administrative Code.

R15-4-9. Underscoring and Striking Out. (1) (a) Pursuant to Subsection 63G-3-301(2)(b), an agency shall underscore language to be added and strike out language to be deleted in proposed rules. (b) Consistent with Subsection 63G-3-301(2)(b), an agency shall underscore language to be added and strike out language to be deleted in changes in proposed rules, 120-day rules, and nonsubstantive changes. (c) Consistent with legislative bill drafting technique, the struck out language shall be surrounded by brackets. (2) When an agency proposes to make a new rule or section, the entire proposed

text shall be underscored. (3)(a) When an agency proposes to repeal a complete rule it shall include as part of the information provided in the rule analysis a brief summary of the deleted language and a brief explanation of why the rule is being repealed.

## Administrative Services

August 1, 2009 Utah Administrative Code - 11 - (b) The agency shall include with the rule analysis a copy of the text to be
deleted in one of the following formats: (i) each page annotated "repealed in its entirety" or (ii) the entire text struck out in its entirety and surrounded by one set of

brackets. (c) The division shall not publish repealed rules unless space is available within the page limits of the
bulletin. (4) When an agency fails to mark a change as described in this section, the director or his designee may refuse to codify the change. When determining whether or not to codify an unmarked change, the
director shall consider: (a) whether the unmarked change is substantive or nonsubstantive; and (b) if the purpose of public notification has been adequately served. (5) The director's refusal to codify an unmarked change means that the change is not operative for the purposes of Section 63G-3-701 and that the agency must comply with regular rulemaking procedures to make the change.

R15-4-10. Estimates of Anticipated Cost or Savings, and Compliance Cost. (1) Pursuant toSubsections 63G-3-301(3), 63G3-303(1), 63G-3-304(2), and 53C-1-201(3), when an agency files a proposed rule, change in proposed rule, 120-day (emergency) rule, or expedited rule and provides anticipated cost or savings, and compliance cost information in the rule analysis, the agency

shall: (a) estimate the incremental cost or savings and incremental compliance
cost associated with the changes proposed by the rule or change; (b) estimate the incremental cost or savings and incremental compliance cost in dollars, except as otherwise provided in Subsections R15-4-10(4) and (5); (c) indicate that the
amount is either a cost or a savings; and (d) estimate the incremental cost or savings expected to accrue to "state budgets," "local governments," "small businesses," and "persons other than small businesses, businesses, or local governmental entities" as aggregated cost or savings; (2) In addition, an

agency may: (a) provide a narrative description of anticipated cost or savings, and compliance cost; (b) compare anticipated cost or savings, and compliance cost figures, for the rule or change to: (i) current budgeted
costs associated with the existing rule, (ii) figures reported on
a fiscal note attached to a related legislative bill, or (iii) both (i) and (ii). (3) If an agency chooses to provide comparison figures, it shall clearly distinguish comparison figures from the anticipated cost or savings, and compliance cost figures. (4) If dollar estimates are unknown or not available,

## Administrative Services

August 1, 2009 Utah Administrative Code - 12 - or the obtaining thereof would impose a substantial unbudgeted hardship on the agency, the agency may
substitute a reasonednarrative description of costrelated actions required by the rule or change, and explain the reason or reasons
for the substitution. (5) If no cost, savings, or compliance cost is
associated with the rule or change, an agency may enter "none," "no impact," or
similar words in the rule analysis followed by a written explanation of how the agency
estimated that there would be no impact, or how the proposed rule, or changes made to an existing rule does not apply to "state budgets," "local government," "small businesses," "persons other than small businesses, businesses, or local governmental entities," or any
combination of these. (6) If an agency does not provide an estimate of cost, savings, compliance cost, or a reasoned narrative description of cost information; or a written explanation as part of the rule analysis in compliance with this section, the Division may, after making an attempt to obtain the required information, refuse to register and publish the rule or change. If the Division refuses to register and publish a rule or change, it

shall: (a) return the rule or change to the agency with a notice indicating that the
Division has refused to register and publish the rule or change; (b) identify the reason or reasons why the Division refused to register and publish the rule or change;

and (c) indicate the filing
deadlines for the next issue
of the Bulletin.

KEY: administrative law

Date of Enactment or Last Substantive Amendment: August
24, 2007
Notice of Continuation: September 29, 2005 Authorizing, and Implementedor Interpreted Law: 63-46a1063G-3-301; 63-46a-463G-3- 303; 63-46a-663G-3-304; 63G-3-

402

R15-5. Administrative Rules Adjudicative Proceedings. R15-5-1. Purpose. (1) This rule provides the procedures for informal adjudicative proceedings governing: (a) appeal and review of a decision by the division not to publish an agency's proposed rule or rule change or not to register an agency's notice of effective date; and (b) a determination by the division whether an agency rule meets the procedural requirements of Title 63G, Chapter 3, the Utah Administrative Rulemaking Act. (2) The informal procedures of this rule apply
to all other division actions for which an adjudicative proceeding may be required.

R15-5-2. Authority. This rule is required by
Sections 63G-4-202 and 63G-4- 203, and is enacted under the authority of Subsection 63G-3- 402(1)(m) and Sections 63G-4-

## Administrative Services

August 1, 2009 Utah Administrative Code - 13 - 202, 63G-4-203, and 63G-4-503.

R15-5-3. Definitions. (1) The terms used in
this rule are defined in
Section 63G-4-103. (2) In addition, "digest" means the Utah State Digest which summarizes the
content of the bulletin asrequired under Subsection 63G3-402(1)(f).

R15-5-4. Refusal to Publish or Register a Rule or Rule Change. (1) The division shall not publish a proposed rule or rule change when the division determines the agency has not met the requirements of Title 63G, Chapter 3, or of Rules

R15-3 or R15-4. (2) The division shall not register an agency's notice of effective date, nor codify the rule or rule change
in the Utah Administrative Code, if the agency exceeds the 120-day limit required by Subsection 63G-3-301(6)(a) as interpreted in Section R15-4-

5. (3) The division shall notify the agency of a refusal to publish or register a rule or rule change, and shall advise and assist the agency in correcting any error or omission, and in re-filing to meet statutory and regulatory
criteria.

R15-5-5. Appeal of a Refusal to Publish or Register a Rule or Rule Change. (1) An agency may request a review of a division refusal to publish or register a rule or rule change by filing a written petition for
review with the division director. (2) The division director shall grant or deny the petition within 20 days, and respond in writing giving the reasons for any denial. (3) The agency may appeal the decision of the division director by filing a written appeal to the
Executive Director of the Department of Administrative Services within 20 days of receipt of the division
director's decision. The
Executive Director shall respond within 20 days affirming or reversing the
division director's decision.

R15-5-6. Determining the Procedural Validity of a Rule. (1) A person may contest the procedural validity, or request a determination of

whether a rule meets the requirements of Title 63G, Chapter 3, by filing a written petition with the division. (a) The rule at issue may be a proposed rule or an
effective rule. (b) The petition must be received by the division within the two-year limit set by Section 63G-3-603. (c) The petition may emanate from a rulemaking hearing as in Section R15-1-8. (d) The petition shall specify the rule or rule change at issue and reasons why the petitioner deems it procedurally flawed or
invalid. (e) The petition shall be accompanied by any
documents the division should consider in reaching its
decision. (f) The petition shall be signed and designate a

## Administrative Services

August 1, 2009 Utah Administrative Code - 14 - telephone number where the petitioner can be contacted during regular business hours. (2) The division shall respond to the petition in writing within 20 days of its receipt. (a) The division shall

research all records pertaining to the rule or rule change at issue. (b) The response of the
division shall state whether the rule is procedurally valid or invalid and how the agency may remedy any defect. (c) The division shall send a copy of the petition and its response to the pertinent agency. (3) The petitioner may request reconsideration of the division's findings by filing a written request for
reconsideration with the
division director. (a) The director may respond to the request in writing. (b) If the petitioner receives no response within 20 days, the request is denied.

R15-5-7. Remedies Resulting from an Adjudicative Proceeding. (1) A rule the division determines is procedurally
invalid shall be stricken from
the Utah Administrative Code
and notice of its deletion published in the next issues of the bulletin and digest. (2) The division shall notify the pertinent agencyand assist the agency in refiling or otherwise remedying the procedural omission or
error in the rule. (3) A rule the division determines is procedurally valid shall be published and registered promptly.

KEY: administrative procedures, administrative law

Date of Enactment or Last
Substantive Amendment: June
1, 1996
Notice of Continuation: September 29, 2005 Authorizing, and Implemented or Interpreted Law: 63G-3- 402; 63G-4-202; 63G-4-203;

63G-4-503

# Proposed Rule

## R307. Environmental Quality, Air Quality. R307-204. Emission Standards: Smoke Management. R307-204-1. Purpose and Goals. (1) The purpose of R307-204 is to establish by rule procedures that mitigate the impact on public health and visibility of prescribed fire and wildland fire.

R307-204-2. Applicability. (1) R307-204 applies to all persons using prescribed fire or wildland fire on land they own or manage. (2) R307-204 does not apply to agricultural activities specified in 19-2-114 and to those regulated under R307-202, or to activities otherwise permitted under R307.

R307-204-3. Definitions. The following additional definitions apply only to R307-204.
"Annual Emissions Goal" means the annual establishment of a planned quantitative value of emissions reductions from prescribed
fire. "Best Management Practices" means smoke management and dispersion techniques used during a prescribed fire or a wildland fire use event that affect the direction, duration, height or density of smoke. "Burn Plan" means the plan required for each fire ignited by managers or allowed to burn. "Burn Window" means the period of time during which the prescribed fire is scheduled for ignition. "Emission Reduction Techniques (ERT)" mean techniques for controlling emissions from prescribed fires to minimize the amount of emission output per unit or acre burned. "Federal Class I Area" means any Federal land that is federally classified or reclassified Class I. "Fire Prescription" means the measurable criteria that define conditions under which a prescribed fire may be ignited, guide selection of appropriate management responses, and indicates other required actions. Prescription criteria may include but are not limited to safety, economic, public health, environmental, geographic, administrative, social, or legal considerations. "Land Manager" means any federal, state, local or private entity that owns, administers, directs, oversees or controls the use of public or private land, including the application of fire

to the land. "Non-burning Alternatives to Fire" means non-burning techniques that are used to achieve a particular land management objective, including but not limited to reduction of fuel loading, manipulation of fuels, enhancement of wildlife habitat, and ecosystem restructuring. These alternatives are designed to replace the use of fire for at least the next five years. "Particulate Matter" means the liquid or solid particles such as dust, smoke, mist, or smog found in air emissions. "Pile" means natural materials or debris resulting from some type of fuels management practice that have been relocated either

## by hand or machinery into a concentrated area. "Pile Burning" means burning of individual piles. "Prescribed Fire or Prescribed Burn" means any fire ignited by management actions to meet specific objectives, such as achieving resource benefits. "Smoke Sensitive Receptors" means population centers such as towns and villages, campgrounds and trails, hospitals, nursing homes, schools, roads, airports, Class I areas, nonattainment and maintenance areas, areas whose air quality monitoring data indicate pollutant levels that are close to health standards, and any other areas where smoke and air pollutants can adversely affect public health, safety and welfare. "Wildland" means an area in which development is essentially non-existent, except for pipelines, power lines, roads, railroads, or other transportation or conveyance facilities. Structures, if any, are widely scattered. "Wildland Fire" means any non-structure fire, other than prescribed fire, that occurs in the wildland. "Wildland Fire Use Event" means naturally ignited wildland fire that is managed to accomplish specific prestated resource management objectives in predefined geographic areas. "Wildland Fire Implementation Plan (WFIP) " means the plan required for each fire that is allowed to burn. "W[ildland ]F[ire ]I[mplementation ]P[lan ] Stage I" means the initial wildland fire planning document. It is developed for fires with a low potential of spread and negative impacts. "W[ildland ]F[ire ]I[mplementation ]P[lan ] Stage II" means a more detailed wildland fire planning document. It is developed for larger more active fires with a greater potential for geographic extent.

R307-204-4. General Requirements. (1) Management of On-Going Fires. If, after consultation with the land manager, the executive secretary determines that a prescribed fire, wildland fire use event, wildland fire, or any smoke transported from other locations, is degrading air quality to levels that could violate the National Ambient Air Quality Standards or burn plan conditions, the land manager shall promptly stop igniting additional prescribed fires. (2) Emissions Calculations. In calculating emissions information required under R307-204, each land manager shall use emission factors approved by the executive secretary. (3) Non-burning Alternatives to Fire. Beginning in 2004 and annually thereafter, each land manager shall submit to theexecutive secretary by March 15 a list of areas treated using nonburning alternatives to fire during the previous calendar year, including the number of acres, the specific types of alternatives used, and the location of these areas. (4) Annual Emissions Goal. The executive secretary shall provide an opportunity for an annual meeting with land managers for the purpose of evaluation and adoption of the annual emission goal. The annual emission goal shall be developed in cooperation

## with states, federal land management agencies and private entities, to control prescribed fire emissions increases to the
maximum feasible extent. (5) Long-term Fire Projections. Each land manager shall provide to the executive secretary by March 15 annually long-term projections of future prescribed fire activity for annual assessment of visibility impairment.

R307-204-5. Burn Schedule. (1) Any land manager planning prescribed fire burning more than 50 acres per year shall submit the burn schedule to the executive secretary on forms provided by the Division of Air Quality, and shall include the following information for all prescribed fires including those smaller than [5 ] 2 0 acres: (a) Project number and project name; (b) Air Quality Basin, UTM coordinate for the central point of the prescribed fire, project elevation, and county; (c) Total project acres, description of major fuels, type of burn, ignition method, and planned use of emission reduction techniques to support establis h ment of the annual emissions goal; (d) Earliest burn date and burn duration. (2) Each land manager shall submit each year's burn schedule no later than March 15 of that year. (3) Any land manager who makes changes to the burn schedule shall submit an amendment to the burn schedule within 10 days after the change.

R307-204-6. Small Prescribed Fires (de minimis)

. (1) A prescribed fire that covers less than 20 acres per burn shall be ignited only when the clearing index is 500 or
greater. (2) A prescribed fire that covers less than 20 acres per day may be ignited when the National Weather Service Clearing Index is between 500 and 400 [under a conditional basis ]with approval of the executive secretary. (a) The prescribed fire should be recorded as a de minimis prescribed fire on the Utah Annual Burn Schedule. (b) The Land Manager is required to notify the executive secretary by fax, e-mail, or phone prior to ignition of the burn when burning below a National Weather Service Clearing Index is

between 500 and 400. (c) Additional reporting requirements including hourly photographs, a record of any complaints, hourly meteorological conditions and an hourly description of the smoke plume must be
recorded and submitted.

R307-204-7. Small Prescribed Pile Fires (de minimis). (1) Pile burns covering up to 30,000 cubic feet per day shall be ignited only when the clearing index is 500 or greater. (2) Pile burns covering up to 30,000 cubic feet per day may be ignited when the National Weather Service Clearing Index is between 500 and 400 [under a conditional basis ]with approval of

## the executive secretary. (a) The pile fire should be recorded as a de minimis prescribed fire on the Utah Annual Burn Schedule. (b) The Land Manager is required to notify the executive secretary by fax, e-mail, or phone prior to ignition of the burn when burning below a National Weather Service Clearing Index is

between 500 and 400. (c) Additional reporting requirements including hourly photographs, a record of any complaints, hourly meteorological conditions and an hourly description of the smoke plume must be
recorded and submitted.

R307-204-8. Large Prescribed Fires. (1) Burn Plan. For a prescribed fire that covers 20 acres or more per burn , the land manager shall submit to the executive secretary a burn plan, including a fire prescription, upon
request. (2) Pre-Burn Information. For a prescribed fire that covers 20 acres or more per burn, the land manager shall submit pre-burn information to the executive secretary at least two weeks before the beginning of the burn window. The pre-burn information shall be submitted to the executive secretary on the form provided by the Division of Air Quality by fax, electronic mail or postal mail and shall include the following information: (a) The three-letter ID, project number, date submitted, name of person submitting the form, burn manager, and phone numbers; (b) Summary of burn objectives, such as restoration or maintenance of ecological functions or indication of fire resiliency; (c) Any sensitive receptor within 15 miles, including any Class I or nonattainment or maintenance area, and distance and direction in degrees from the project site; (d) Planned mitigation methods; (e) The smoke dispersion or visibility model used and results; (f) The estimated amount of total particulate matter anticipated; (g) A description of how the public and land managers in neighboring states will be notified; (h) A map depicting both the daytime and nighttime smoke path and down-drainage flow for a minimum of 15 miles from the burn site with smoke-sensitive areas delineated; (i) Safety and contingency plans for addressing any smoke intrusions; and (j) If the fire is in a nonattainment or maintenance area and is subject to general conformity (42 U.S.C. 7506(c)), a copy of the conformity demonstration showing that the fire meets the requirements of the Clean Air Act and conforms with the applicable State Implementation Plan. (k) Planned use of emission reduction techniques to support establishment of an annual emissions goal, if not already

## submitted under R307-204-5. (l) Any other information needed by the executive secretary for smoke management purposes, or for assessment of contribution to visibility impairment in any Class I area. (3) Burn Request. (a) The land manager shall submit to the executive secretary a burn request on the form provided by the Division of Air Quality by 1000 hours at least two business days before the planned ignition time. The form may be submitted by fax or electronic mail, and must include the following information: (i) The three-letter identification and project number consistent with the annual burn schedule required in R307-204-5(1) above; (ii) The date submitted and by whom; and (iii) The burn manager conducting the burn and phone

numbers. (b) No prescribed fire requiring a burn plan shall be ignited before the executive secretary approves [or conditionally

approves ]the burn request. (c) If a prescribed fire is delayed, changed or not completed following burn approval, any significant changes in the burn plan shall be submitted to the executive secretary before the burn request is submitted. If a prescribed fire is not carried out, the land manager shall list the reasons on the burn request form provided by the Division of Air Quality and shall submit the form by fax or electronic mail to the executive secretary by 0800 hours the following business day. (4) Daily Emissions Report. By 0800 hours on the day following the prescribed burn, for each day of prescribed fire activity covering 20 acres or more, the land manager shall submit to the executive secretary a daily emission report on the form provided by the Division of Air Quality including the following
information: (a) The three-letter identification and project number consistent with the annual burn schedule required in R307-204-5(1) above; (b) The date submitted and by whom; (c) The start and end dates and times of the burn; (d) Emission information including black acres, tons fuel consumed per acre, and tons particulate matter produced; (e) Public interest regarding smoke; (f) Daytime ventilation; (g) Nighttime smoke behavior; (h) Evaluation of the techniques used by the land manager to reduce emissions or manage the smoke from the prescribed burn; and (i) Emission reduction techniques applied. (5) Emission Reduction and Dispersion Techniques. Each land manager shall take measures to prevent smoke impacts. Such measures may include best management practices such as dilution,
emission reduction or avoidance in addition to others described in the pre-burn information form provided by the Division of Air Quality. An evaluation of the techniques shall be included in the

## daily emissions report required by (4) above. (6) Monitoring. Land managers shall monitor the effects of the prescribed fire on smoke sensitive receptors and on visibility in Class I areas, as directed by the burn plan. Hourly visual monitoring and documentation of the direction of the smoke plume shall be recorded on the form provided by the Division of Air Quality or on the land manager's equivalent form. Complaints from the public shall be noted in the project file. Records shall be available for inspection by the executive secretary for six months following the end of the fire.

R307-204-9. Large Prescribed Pile Fires. (1) Burn Plan. For a prescribed pile fire that exceeds 30,000 cubic feet per day, the land manager shall submit to the executive secretary a burn plan, including a fire prescription,
upon request. (2) Pre-Burn Information. For a prescribed pile fire that exceeds 30,000 cubic feet or more per burn, the land manager shall submit pre-burn information to the executive secretary at least two weeks before the beginning of the burn window. The pre-burn information shall be submitted to the executive secretary on the form provided by the Division of Air Quality by fax, electronic mail or postal mail and shall include the following information: (a) The three-letter ID, project number, date submitted, name of person submitting the form, burn manager, and phone numbers; (b) Summary of burn objectives, such as restoration or maintenance of ecological functions or indication of fire resiliency; (c) Any sensitive receptor within 15 miles, including any Class I or nonattainment or maintenance area, and distance and direction in degrees from the project site; (d) Planned mitigation methods; (e) The smoke dispersion or visibility model used and results; (f) The estimated amount of total particulate matter anticipated; (g) A description of how the public and land managers in neighboring states will be notified; (h) A map depicting both the daytime and nighttime smoke path and down-drainage flow for a minimum of 15 miles from the burn site with smoke-sensitive areas delineated; (i) Safety and contingency plans for addressing any smoke intrusions; and (j) If the fire is in a nonattainment or maintenance area and is subject to general conformity (42 U.S.C. 7506(c)), a copy of the conformity demonstration showing that the fire meets the requirements of the Clean Air Act and conforms with the applicable State Implementation Plan. (k) Planned use of emission reduction techniques to support establishment of an annual emissions goal, if not already
submitted under R307-204-5.

## (l) Any other information needed by the executive secretary for smoke management purposes, or for assessment of contribution to visibility impairment in any Class I area. (3) Burn Request. (a) The land manager shall submit to the executive secretary a burn request on the form provided by the Division of Air Quality by 1000 hours at least two business days before the planned ignition time. The form may be submitted by fax or electronic mail, and must include the following information: (i) The three-letter identification and project number consistent with the annual burn schedule required in R307-204-5(1) above; (ii) The date submitted and by whom; and (iii) The burn manager conducting the burn and phone

numbers. (b) No prescribed pile fire requiring a burn plan shall be ignited before the executive secretary approves [or conditionally

approves ]the burn request. (c) If a prescribed pile fire is delayed, changed or not completed following burn approval, any significant changes in the burn plan shall be submitted to the executive secretary before the burn request is submitted. If a prescribed fire is not carried out, the land manager shall list the reasons on the burn request form provided by the Division of Air Quality and shall submit the form by fax or electronic mail to the executive secretary by 0800 hours the following business day. (4) Daily Emissions Report. By 0800 hours on the day following the prescribed pile burn, for each day of pile fire activity exceeding 30,000 cubic feet, the land manager shall submit to the executive secretary a daily emission report on the form provided by the Division of Air Quality including the following information: (a) The three-letter identification and project number consistent with the annual burn schedule required in R307-204-5(1) above; (b) The date submitted and by whom; (c) The start and end dates and times of the burn; (d) Emission information including black acres, tons fuel consumed per acre, and tons particulate matter produced; (e) Public interest regarding smoke; (f) Daytime ventilation; (g) Nighttime smoke behavior; (h) Evaluation of the techniques used by the land manager to reduce emissions or manage the smoke from the prescribed pile burn; and (i) Emission reduction techniques applied. (5) Emission Reduction and Dispersion Techniques. Each land manager shall take measures to prevent smoke impacts. Such measures may include best management practices such as dilution,
emission reduction or avoidance in addition to others described in the pre-burn information form provided by the Division of Air Quality. An evaluation of the techniques shall be included in the

## daily emissions report required by (4) above. (6) Monitoring. Land managers shall monitor the effects of the prescribed pile fire on smoke sensitive receptors and on visibility in Class I areas, as directed by the burn plan. Hourly visual monitoring and documentation of the direction of the smoke plume shall be recorded on the form provided by the Division of Air Quality or on the land manager's equivalent form. Complaints from the public shall be noted in the project file. Records shall be available for inspection by the executive secretary for six months following the end of the fire.

R307-204-10. Requirements for Wildland Fire Use Events. (1) Burn Approval Required. (a) The land manager shall notify the executive secretary of any potential wildland fire use (WFU) event having a wildland fire implementation plan (WFIP) Stage I. The following information will be provided: (i) UTM coordinate of the fire; (ii) Active burning acres; (iii) Probable fire size and daily anticipated growth in

acres; (iv) Types of wildland fuel involved; (v) An emergency telephone number that is answered 24 hours a day; (vi) Wilderness or Resource Natural Area designation, if applicable; (vii) Distance to nearest community; (viii) Elevation of fire; and (ix) Fire's airshed number. (b) The Land Managers shall notify the executive secretary of any potential wildland fire use (WFU) event covering more than 20 acres or having a WFIP Stage II due to higher potential for spread and negative impacts . In addition to the information required for a WFU with a WFIP Stage I, the following additional information will be provided to the executive secretary as it is being developed: (i) WFIP Stage II wildland fire implementation plan and anticipated emissions; (ii) A map depicting both the daytime and nighttime smoke path and down-drainage flow for a minimum of 15 miles from the burn site with smoke-sensitive areas delineated; and (iii) Additional computer smoke modeling, if requested by the executive secretary. (c) The executive secretary's approval of the smoke management element of the wildland fire implementation plan shall be obtained before managing the fire as a wildland fire use event. (2) Daily Emission Report for wildland fire use event. By 0800 hours on the business day following fire activity covering 20 acres or more, the land manager shall submit to the executive secretary the daily emission report on the form provided by the Division of Air Quality, including the following information: (a) The three-letter identification, project number, Air

## Quality Basin, and name of the burn manager; (b) UTM coordinate; (c) Dates and times of the start and end of the burn; (d) Black acres by wildland fuel type; (e) Estimated proportion of wildland fuel consumed by wildland fuel type; (f) Proportion of moisture in the wildland fuel by size class; (g) Emission estimates; (h) Level of public interest or concern regarding smoke; and (i) Conformance to the wildland fire implementation plan. (3) Monitoring. The land manager shall monitor the effects of smoke on smoke sensitive receptors and visibility in Class I areas as directed by the wildland fire implementation plan. Complaints from the public shall be recorded in the project file. Records shall be available for inspection by the executive secretary for six months following the end of the fire.

KEY: air quality, wildland fire, smoke, land manager
Date of Enactment or Last Substantive Amendment: 2011 [April 7,

2006 ] Notice of Continuation: March 4, 2010 Authorizing, and Implemented or Interpreted Law: 19-2-104(1)(a)

# Hearing

## No public hearing was requested; therefore, the Division of Air Quality did not hold a public hearing.

## MEMORANDUM

TO: Air Quality Board

THROUGH: Bryce Bird, Executive Secretary

FROM: Joel Karmazyn, Environmental Scientist

DATE: June 7, 2011

SUBJECT: PROPOSE TO AMEND 

## : R307-204. Emission Standards: Smoke Management

.

The amendments to R307-204 were posted for public comment from May 1 to May 31, 2011.

No comments were received.

Staff Recommendation: DAQ staff recommends that the Boar d adopt the amendments to R307-

204.

# Effective Rule

# Certification