### Enrolled Copy S.B. 11

1 DEPARTMENT OF ENVIRONMENTAL QUALITY BOARDS
2 ADJUDICATIVE PROCEEDINGS

3 2012 GENERAL SESSION
4 STATE OF UTAH
5 

### Chief Sponsor: Margaret Dayton

6 

### House Sponsor: Bill Wright

7
8 LONG TITLE
9 General Description: 10 This bill modifies requirements and procedures for adjudicative proceedings where a 11 party challenges an agency order, other than a termination order, relating to a perm it, 12 plan, license, approval order, or other administrative authorization made by an 13 executive secretary under Title 19, Environmental Quality Code.
14 Highlighted Provisions:
15 This bill:
16 < defines terms;
17 < distinguishes between adjudicative proceedings not related to permit orders and 18 permit review adjudicative proceedings;
19 < modifies requirements and procedures for adjudicative proceedings where a party 20 challenges an agency order, other than a termination order, relating to a permit, 21 plan, license, approval order, or other administrative authorization made by an 22 executive secretary under Title 19, Environmental Quality Code;
23 < provides that only properly preserved issues may be reviewed during a permit 24 review adjudicative proceeding; 25 < describes the requirements for intervention in a permit review adjudicative 26 proceeding;
27 < establishes that permit review adjudicative proceedings will be based on the 28 administrative record and any permitted supplementation;
29 < provides that stays may not be issued during a permit review adjudicative

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- 2 - 30 proceeding, unless certain conditions are met;
31 < provides for judicial review of a permit review adjudicative proceeding; and
32 < makes technical changes.
33 Money Appropriated in this Bill:
34 None
35 Other Special Clauses:
36 None
37 Utah Code Sections Affected:
38 AMENDS:
39 19-1-301 , as last amended by Laws of Utah 2009, Chapter 377
40 19-2-108 , as last amended by Laws of Utah 2009, Chapter 377
41 19-2-112 , as last amended by Laws of Utah 2009, Chapter 377
42 63G-4-102 , as last amended by Laws of Utah 2011, Chapter 367
43 78A-4-103 , as last amended by Laws of Utah 2009, Chapter 344
44 ENACTS:
45 19-1-301.5 , Utah Code Annotated 1953
46
47 Be it enacted by the Legislature of the state of Utah:
48 Section 1. Section 19-1-301 is amended to read:
49 19-1-301. Adjudicative proceedings. 50 (1) As used in this section, "dispositive action" [is ] means a final agency action that: 51 (a) a board takes following an adjudicative proceeding on a request for agency action; 52 and 53 (b) is subject to judicial review under Section 63G-4-403. 54 (2) This section governs adjudicative proceedings that are not permit review 55 adjudicative proceedings as defined in Section 19-1-301.5. 56 [(2) ] (3) (a) The department and its boards shall comply with the procedures and 57 requirements of Title 63G, Chapter 4, Administrative Procedures Act.

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- 3 - 58 (b) The procedures for an adjudicative proceeding conducted by an administrative law 59 judge are governed by: 60 (i) Title 63G, Chapter 4, Administrative Procedures Act; 61 (ii) this title; 62 [(ii) ] (iii) rules adopted by a board [as authorized by ] under : 63 (A) Subsection 63G-4-102(6); [and ] or 64 (B) this title; and 65 [(iii) ] (iv) the Utah Rules of Civil Procedure, in the absence of a procedure established 66 under Subsection [(2) ] (3) (b)(i), (ii), or [(ii) ] (iii)

. 67 [(3) ] (4) An administrative law judge shall hear a party's request for agency action 68 made to a board created in Section 19-1-106. 69 [(4) ] (5) The executive director shall appoint an administrative law judge who: 70 (a) is a member in good standing of the Utah State Bar; 71 (b) has a minimum of: 72 (i) 10 years of experience practicing law; and 73 (ii) five years of experience practicing in the field of: 74 (A) environmental compliance; 75 (B) natural resources; 76 (C) regulation by an administrative agency; or 77 (D) a field related to a field listed in Subsections [(4) ] (5) (b)(ii)(A) through (C); and 78 (c) has a working knowledge of the federal laws and regulations and state statutes and 79 rules applicable to a request for agency action. 80 [(5) ] (6) In appointing an administrative law judge who meets the qualifications [listed ] 81 describedin Subsection [(4) ] (5) , the executive director may: 82 (a) compile a list of persons who may be engaged as an administrative law judge pro 83 tempore by mutual consent of the parties to an adjudicative proceeding; 84 (b) appoint an assistant attorney general as an administrative law judge pro tempore; or 85 (c) (i) appoint an administrative law judge as an employee of the department; and

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- 4 - 86 (ii) assign the administrative law judge responsibilities in addition to conducti ng an 87 adjudicative proceeding. 88 [(6) ] (7) (a) An administrative law judge shall: 89 (i) conduct an adjudicative proceeding; 90 (ii) take any action that is not a dispositive action; and 91 (iii) submit to the board a proposed dispositive action, including: 92 (A) written findings of fact; 93 (B) written conclusions of law; and 94 (C) a recommended order. 95 (b) A board may: 96 (i) approve, approve with modifications, or disapprove a proposed dispositive action 97 submitted to the board under Subsection [(6) ] (7) (a); or 98 (ii) return the proposed dispositive action to the administrative law judge for furthe r 99 action as directed. 100 [(7) ] (8) To conduct an adjudicative proceeding, an administrative law judge may: 101 (a) compel: 102 (i) the attendance of a witness; and 103 (ii) the production of a document or other evidence; 104 (b) administer an oath; 105 (c) take testimony; and 106 (d) receive evidence as necessary. 107 [(8) ] (9) A party may appear before an administrative law judge in person, through an 108 agent or employee, or as provided by a board rule. 109 [(9) ] (10) (a) An administrative law judge or board member may not communicate with 110 a party to an adjudicative proceeding regarding the merits of the adjudicative proce eding unless 111 notice and an opportunity to be heard are afforded to all parties. 112 (b) An administrative law judge or board member who receives an ex parte 113 communication shall place the communication into the public record of the proceedings and

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- 5 - 114 afford all parties an opportunity to comment on the information. 115 [(10) ] (11) Nothing in this section limits a party's right to an adjudicative proceeding 116 under Title 63G, Chapter 4, Administrative Procedures Act. 117 (12) A board created in Section 19-1-106 may, in accordance with Title 63G, Chapter 118 3, Utah Administrative Rulemaking Act, make procedural rules governing an adjudicat ive 119 proceeding that are consistent with this section and Title 63G, Chapter 4, Administrative
120 Procedures Act.
121 Section 2. Section 19-1-301.5 is enacted to read:
122 19-1-301.5. Permit review adjudicative proceedings. 123 (1) As used in this section: 124 (a) "Board" means: 125 (i) the Air Quality Board, if the permit order being challenged was issued by the 126 executive secretary of the Air Quality Board; 127 (ii) the Radiation Control Board, if the permit order being challenged was issued by the 128 executive secretary of the Radiation Control Board; 129 (iii) the Drinking Water Board, if the permit order being challenged was issued by the 130 executive secretary of the Drinking Water Board; 131 (iv) the executive director, if the permit order being challenged was issued by the 132 executive secretary of the Water Quality Board in relation to a Utah Polluti on Discharge 133 Elimination System permit for which the state has assumed primacy under the Fe deral Water 134 Pollution Prevention and Control Act 33 U.S.C. Sec. 1251 et seq.; 135 (v) the Water Quality Board, if the permit order being challenged was issued by the 136 executive secretary of the Water Quality Board in relation to a permit other than a permit 137 described in Subsection (1)(a)(iv); or 138 (vi) the Solid and Hazardous Waste Control Board, if the permit order being 139 challenged was issued by the executive secretary of the Solid and Hazardous Was te Control
140 Board. 141 (b) "Dispositive action" means a final agency action that:

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- 6 - 142 (i) the board takes as part of a permit review adjudicative proceeding; and 143 (ii) is subject to judicial review, in accordance with Subsection (14). 144 (c) "Dispositive motion" means a motion that is equivalent to: 145 (i) a motion to dismiss under Utah Rules of Civil Procedure, Rule 12(b)(6); 146 (ii) a motion for judgment on the pleadings under Utah Rules of Civil Procedure, Rule 147 12(c); or 148 (iii) a motion for summary judgment under Utah Rules of Civil Procedure, Rule 56. 149 (d) "Party" means: 150 (i) the executive secretary who issued the permit order being challenged in the pe rmit 151 review adjudicative proceeding; 152 (ii) the permittee; 153 (iii) the person who applied for the permit, if the permit was denied; or 154 (iv) a person granted intervention by the administrative law judge. 155 (e) "Permit" means any of the following issued under this title: 156 (i) a permit; 157 (ii) a plan; 158 (iii) a license; 159 (iv) an approval order; or 160 (v) another administrative authorization made by an executive secretary. 161 (f) (i) "Permit order" means an order issued by an executive secretary that : 162 (A) approves a permit; 163 (B) renews a permit; 164 (C) denies a permit; 165 (D) modifies or amends a permit; or 166 (E) revokes and reissues a permit. 167 (ii) "Permit order" does not include an order terminating a permit. 168 (g) "Permit review adjudicative proceeding" means a proceeding to resolve a cha llenge 169 to a permit order.

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- 7 - 170 (2) This section governs permit review adjudicative proceedings. 171 (3) Except as expressly provided in this section, the provisions of Title 63G, Chapter 4, 172 Administrative Procedures Act, do not apply to a permit review adjudicative proceedi ng. 173 (4) If a public comment period was provided during the permit application process, a 174 person who challenges a permit order, including the permit applicant, may only raise an issue 175 or argument during the permit review adjudicative proceeding that: 176 (a) the person raised during the public comment period; and 177 (b) was supported with sufficient information or documentation to enable the executive 178 secretary to fully consider the substance and significance of the issue. 179 (5) The executive director shall appoint an administrative law judge, in accordance 180 with Subsections 19-1-301(5) and (6), to conduct a permit review adjudicative proceeding. 181 (6) (a) Only the following may file a request for agency action seeking review of a 182 permit order: 183 (i) a party; or 184 (ii) a person who is seeking to intervene under Subsection (7). 185 (b) A person who files a request for agency action seeking review of a permit order 186 shall file the request: 187 (i) within 30 days after the day on which the permit order is issued; and 188 (ii) in accordance with Subsections 63G-4-201(3)(a) through (c). 189 (c) A person may not raise an issue or argument in a request for agency action unless 190 the issue or argument: 191 (i) was preserved in accordance with Subsection (4); or 192 (ii) was not reasonably ascertainable before or during the public comment period. 193 (d) A board created in Section 19-1-106 may, in accordance with Title 63G, Chapter 3, 194 Utah Administrative Rulemaking Act, make rules allowing the extension of the fi ling deadline 195 described in Subsection (6)(b)(i). 196 (7) (a) A person who is not a party may not participate in a permit review adjudicati ve 197 proceeding unless the person is granted the right to intervene under this Subsection (7).

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- 8 - 198 (b) A person who seeks to intervene in a permit review adjudicative proceeding under 199 this section shall, within 30 days after the day on which the permit order being challeng ed was 200 issued, file: 201 (i) a petition to intervene that: 202 (A) meets the requirements of Subsection 63G-4-207(1); and 203 (B) demonstrates that the person is entitled to intervention under Subsection (7)(c)( ii);
204 and 205 (ii) a timely request for agency action. 206 (c) An administrative law judge shall grant a petition to intervene in a permit r eview 207 adjudicative proceeding, if: 208 (i) the petition to intervene is timely filed; and 209 (ii) the petitioner: 210 (A) demonstrates that the petitioner's legal interests may be substantia lly affected by 211 the permit review adjudicative proceeding; 212 (B) demonstrates that the interests of justice and the orderly and prompt conduct of the 213 permit review adjudicative proceeding will not be materially impaired by all owing the 214 intervention; and 215 (C) in the petitioner's request for agency action, raises issues or argument s that are 216 preserved in accordance with Subsection (4). 217 (d) An administrative law judge: 218 (i) shall issue an order granting or denying a petition to intervene in accordance with 219 Subsection 63G-4-207(3)(a); and 220 (ii) may impose conditions on intervenors as described in Subsection 63G-4-207(3)(b) 221 and (c). 222 (e) A board created in Section 19-1-106 may, in accordance with Title 63G, Chapter 3, 223 Utah Administrative Rulemaking Act, make rules allowing the extension of the fi ling deadline 224 described in Subsection (7)(b). 225 (8) (a) An administrative law judge shall conduct a permit review adjudicative

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- 9 - 226 proceeding based only on the administrative record and not as a trial de novo. 227 (b) To the extent relative to the issues and arguments raised in the request for ag ency 228 action, the administrative record shall consist of the following items, if they e xist: 229 (i) the permit application, draft permit, and final permit; 230 (ii) each statement of basis, fact sheet, engineering review, or other substant ive 231 explanation designated by the executive secretary as part of the basis for the de cision relating to 232 the permit order; 233 (iii) the notice and record of each public comment period; 234 (iv) the notice and record of each public hearing, including oral comments made during 235 the public hearing; 236 (v) written comments submitted during the public comment period; 237 (vi) responses to comments that are designated by the executive secretary a s part of the 238 basis for the decision relating to the permit order; 239 (vii) any information that is: 240 (A) requested by and submitted to the executive secretary; and 241 (B) designated by the executive secretary as part of the basis for the decisi on relating to 242 the permit order; 243 (viii) any additional information specified by rule; 244 (ix) any additional documents agreed to by the parties; and 245 (x) information supplementing the record under Subsection (8)(c). 246 (c) (i) There is a rebuttable presumption against supplementing the record. 247 (ii) A party may move to supplement the record described in Subsection (8)(b) with
248 technical or factual information. 249 (iii) The administrative law judge may grant a motion to supplement the record 250 described in Subsection (8)(b) with technical or factual information if the moving party proves 251 that: 252 (A) good cause exists for supplementing the record; 253 (B) supplementing the record is in the interest of justice; and

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- 10 - 254 (C) supplementing the record is necessary for resolution of the issues. 255 (iv) The administrative law judge may supplement the record with technical or fa ctual 256 information on the administrative law judge's own motion if the administrative law judge 257 determines that adequate grounds exist to supplement the record under Subsections 258 (8)(c)(iii)(A) through (C). 259 (v) In supplementing the record with testimonial evidence, the administrative law judge 260 may administer an oath or take testimony as necessary. 261 (vi) A board created in Section 19-1-106 may, in accordance with Title 63G, Chapter 262 3, Utah Administrative Rulemaking Act, make rules permitting further supplement ation of the
263 record. 264 (9) (a) The administrative law judge shall review and respond to a request for agenc y 265 action in accordance with Subsections 63G-4-201(3)(d) and (e), following the relevant 266 procedures for formal adjudicative proceedings. 267 (b) The administrative law judge shall require the parties to file responsive pl eadings in
268 accordance with Section 63G-4-204. 269 (c) If an administrative law judge enters an order of default against a party, the 270 administrative law judge shall enter the order of default in accordance with Se ction 63G-4-209, 271 following the relevant procedures for formal adjudicative proceedings. 272 (d) The administrative law judge, in conducting a permit review adjudicative 273 proceeding: 274 (i) may not participate in an ex parte communication with a party to the permit re view 275 adjudicative proceeding regarding the merits of the permit review adjudicative proceeding 276 unless notice and an opportunity to be heard are afforded to all parties; and 277 (ii) shall, upon receiving an ex parte communication, place the communication in the 278 public record of the proceeding and afford all parties an opportunity to comment on the 279 information. 280 (e) In conducting a permit review adjudicative proceeding, the administrative law 281 judge may take judicial notice of matters not in the administrative record, in acc ordance with

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- 11 - 282 Utah Rules of Evidence, Rule 201. 283 (f) An administrative law judge may take any action in a permit review adjudicative 284 proceeding that is not a dispositive action. 285 (10) (a) A person who files a request for agency action has the burden of demonstrating 286 that an issue or argument raised in the request for agency action has been preserved i n 287 accordance with Subsection (4). 288 (b) The administrative law judge shall dismiss, with prejudice, any issue or arg ument 289 raised in a request for agency action that has not been preserved in accordance with Subs ection 290 (4). 291 (11) In response to a dispositive motion, the administrative law judge may submit a 292 proposed dispositive action to the board recommending full or partial resolution of the permi t 293 review adjudicative proceeding, that includes: 294 (a) written findings of fact; 295 (b) written conclusions of law; and 296 (c) a recommended order. 297 (12) For each issue or argument that is not dismissed or otherwise resolved under 298 Subsection (10)(b) or (11), the administrative law judge shall: 299 (a) provide the parties an opportunity for briefing and oral argument; 300 (b) conduct a review of the executive secretary's determination, based on the recor d 301 described in Subsections (8)(b), (8)(c), and (9)(e); and 302 (c) submit to the board a proposed dispositive action, that includes: 303 (i) written findings of fact; 304 (ii) written conclusions of law; and 305 (iii) a recommended order. 306 (13) (a) When the administrative law judge submits a proposed dispositive action to 307 the board, the board may: 308 (i) adopt, adopt with modifications, or reject the proposed dispositive action; or 309 (ii) return the proposed dispositive action to the administrative law judge for furthe r

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- 12 - 310 action as directed. 311 (b) On review of a proposed dispositive action, the board shall uphold all factual, 312 technical, and scientific agency determinations that are supported by substantia l evidence taken
313 from the record as a whole. 314 (c) (i) The board may not participate in an ex parte communication with a party to the 315 permit review adjudicative proceeding regarding the merits of the permit revi ew adjudicative 316 proceeding unless notice and an opportunity to be heard are afforded to all parties. 317 (ii) Upon receiving an ex parte communication, the board shall place the 318 communication in the public record of the proceeding and afford all parties an opportunity to 319 comment on the information. 320 (d) In reviewing a proposed dispositive action during a permit review adjudicative 321 proceeding, the board may take judicial notice of matters not in the record, in accordance with 322 Utah Rules of Evidence, Rule 201. 323 (e) The board may use its technical expertise in making a determination. 324 (14) (a) A party may seek judicial review in the Utah Court of Appeals of a dispositi ve 325 action in a permit review adjudicative proceeding, in accordance with Sections 63G- 4-401, 326 63G-4-403, and 63G-4-405. 327 (b) An appellate court shall limit its review of a dispositive action of a permit review 328 adjudicative proceeding to: 329 (i) the record described in Subsections (8)(b), (8)(c), (9)(e), and (13)(d); and 330 (ii) the record made by the administrative law judge and the board during the permit 331 review adjudicative proceeding. 332 (c) During judicial review of a dispositive action, the appellate court shall: 333 (i) review all agency determinations in accordance with Subsection 63G-4-403(4), 334 recognizing that the agency has been granted substantial discretion to interpret its governing 335 statutes and rules; and 336 (ii) uphold all factual, technical, and scientific agency determinations that are 337 supported by substantial evidence viewed in light of the record as a whole.

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- 13 - 338 (15) (a) The filing of a request for agency action does not stay a permit or delay the 339 effective date of a permit. 340 (b) A permit may not be stayed or delayed unless a stay is granted under this 341 Subsection (15). 342 (c) The administrative law judge shall: 343 (i) consider a party's motion to stay a permit during a permit review adjudicati ve 344 proceeding; and 345 (ii) submit a proposed determination on the stay to the board. 346 (d) The administrative law judge may not recommend to the board a stay of a permit, 347 or a portion of a permit, unless: 348 (i) all parties agree to the stay; or 349 (ii) the party seeking the stay demonstrates that: 350 (A) the party seeking the stay will suffer irreparable harm unless the stay is issued; 351 (B) the threatened injury to the party seeking the stay outweighs whatever damag e the 352 proposed stay is likely to cause the party restrained or enjoined; 353 (C) the stay, if issued, would not be adverse to the public interest; and 354 (D) there is a substantial likelihood that the party seeking the stay will pre vail on the 355 merits of the underlying claim, or the case presents serious issues on the merit s, which should 356 be the subject of further adjudication. 357 (e) A party may appeal a board's decision regarding a stay of a permit to the Utah Court 358 of Appeals, in accordance with Section 78A-4-103. 359 (16) A board created in Section 19-1-106 may, in accordance with Title 63G, Chapter 360 3, Utah Administrative Rulemaking Act, make procedural rules governing a permit r eview 361 adjudicative proceeding that are consistent with this section.
362 Section 3. Section 19-2-108 is amended to read:
363 19-2-108. Notice of construction or modification of installations required --
364 Authority of executive secretary to prohibit construction -- Hearings -- L imitations on
365 authority of board -- Inspections authorized.

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- 14 - 366 (1) The board shall require that notice be given to the executive secretary by any pe rson 367 planning to construct a new installation which will or might reasonably be expecte d to be a 368 source or indirect source of air pollution or to make modifications to an existing insta llation 369 which will or might reasonably be expected to increase the amount of or change the char acter 370 or effect of air contaminants discharged, so that the installation may be expec ted to be a source 371 or indirect source of air pollution, or by any person planning to install an air cleaning devic e or 372 other equipment intended to control emission of air contaminants. 373 (2) (a) (i) The executive secretary may require, as a condition precedent to the 374 construction, modification, installation, or establishment of the air contaminant sour ce or 375 indirect source, the submission of plans, specifications, and other information as he finds 376 necessary to determine whether the proposed construction, modification, installati on, or 377 establishment will be in accord with applicable rules in force under this chapter. 378 (ii) Plan approval for an indirect source may be delegated by the executive secre tary to 379 a local authority when requested and upon assurance that the local authority has and will 380 maintain sufficient expertise to insure that the planned installation will me et the requirements 381 established by law. 382 (b) If within 90 days after the receipt of plans, specifications, or other informati on 383 required under this subsection, the executive secretary determines that the propose d 384 construction, installation, or establishment or any part of it will not be in accord with the 385 requirements of this chapter or applicable rules or that further time, not exceedi ng three 386 extensions of 30 days each, is required by the board to adequately review the plans, 387 specifications, or other information, he shall issue an order prohibiting the construct ion, 388 installation, or establishment of the air contaminant source or sources in whole or in part. 389 (3) In addition to any other remedies, any person aggrieved by the issuance of an order 390 either granting or denying a request for the construction of a new installation, and prior to 391 invoking any such other remedies shall, upon request, in accordance with the rules of the board, 392 be entitled to a [hearing ] permit review adjudicative proceeding conducted by an administrative 393 law judge as provided by Section [19-1-301 ] 19-1-301.5 . Following the [hearing ] permit

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- 15 - 394 review adjudicative proceeding and the receipt by the board of the proposed dispositive action 395 from the administrative law judge, the board may affirm, modify, or withdraw the permit. 396 (4) Any features, machines, and devices constituting parts of or called for by plans, 397 specifications, or other information submitted under Subsection (1) shall be maintaine d in good 398 working order. 399 (5) This section does not authorize the board to require the use of machinery, devices, 400 or equipment from a particular supplier or produced by a particular manufacturer if the required 401 performance standards may be met by machinery, devices, or equipment otherwise avai lable. 402 (6) (a) Any authorized officer, employee, or representative of the board may enter and 403 inspect any property, premise, or place on or at which an air contaminant source is locat ed or is 404 being constructed, modified, installed, or established at any reasonable time for the purpose of 405 ascertaining the state of compliance with this chapter and the rules adopted under i t. 406 (b) (i) A person may not refuse entry or access to any authorized representative of the 407 board who requests entry for purposes of inspection and who presents appropriate credential s. 408 (ii) A person may not obstruct, hamper, or interfere with any inspection. 409 (c) If requested, the owner or operator of the premises shall receive a report setting 410 forth all facts found which relate to compliance status.
411 Section 4. Section 19-2-112 is amended to read:
412 19-2-112. Generalized condition of air pollution creating emergency -- Sources
413 causing imminent danger to health -- Powers of executive director -- Dec laration of
414 emergency. 415 (1) (a) Title 63G, Chapter 4, Administrative Procedures Act, and any other provision of 416 law to the contrary notwithstanding, if the executive director finds that a genera lized condition 417 of air pollution exists and that it creates an emergency requiring immediate action to protect 418 human health or safety, the executive director, with the concurrence of the governor, shal l 419 order persons causing or contributing to the air pollution to reduce or discontinue immediate ly
420 the emission of air contaminants. 421 (b) The order shall fix a place and time, not later than 24 hours after its issuance, for a

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- 16 - 422 hearing to be held before the governor. 423 (c) Not more than 24 hours after the commencement of this hearing, and without 424 adjournment of it, the governor shall affirm, modify, or set aside the order of the execut ive 425 director. 426 (2) (a) In the absence of a generalized condition of air pollution referred to in 427 Subsection (1), but if the executive director finds that emissions from the operation of one or 428 more air contaminant sources is causing imminent danger to human health or safety , the 429 executive director may commence adjudicative proceedings under Section 63G-4-502. 430 (b) Notwithstanding Section 19-1-301 or 19-1-301.5 , the executive director may 431 conduct the emergency adjudicative proceeding in place of an administrative law judg e. 432 (3) Nothing in this section limits any power that the governor or any other officer ha s 433 to declare an emergency and act on the basis of that declaration.
434 Section 5. Section 63G-4-102 is amended to read:
435 63G-4-102. Scope and applicability of chapter. 436 (1) Except as set forth in Subsection (2), and except as otherwise provided by a statute 437 superseding provisions of this chapter by explicit reference to this chapter, the provi sions of 438 this chapter apply to every agency of the state and govern: 439 (a) state agency action that determines the legal rights, duties, privileg es, immunities, 440 or other legal interests of an identifiable person, including agency action to grant , deny, revoke, 441 suspend, modify, annul, withdraw, or amend an authority, right, or license; and 442 (b) judicial review of the action. 443 (2) This chapter does not govern: 444 (a) the procedure for making agency rules, or judicial review of the procedure or rules ; 445 (b) the issuance of a notice of a deficiency in the payment of a tax, the decision to 446 waive a penalty or interest on taxes, the imposition of and penalty or interest on taxe s, or the 447 issuance of a tax assessment, except that this chapter governs an agency acti on commenced by 448 a taxpayer or by another person authorized by law to contest the validity or correctnes s of the 449 action;

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- 17 - 450 (c) state agency action relating to extradition, to the granting of a pardon or parol e, a 451 commutation or termination of a sentence, or to the rescission, termination, or revocat ion of 452 parole or probation, to the discipline of, resolution of a grievance of, supervision of, 453 confinement of, or the treatment of an inmate or resident of a correctional facili ty, the Utah 454 State Hospital, the Utah State Developmental Center, or a person in the custody or j urisdiction 455 of the Division of Substance Abuse and Mental Health, or a person on probation or parole, or 456 judicial review of the action; 457 (d) state agency action to evaluate, discipline, employ, transfer, reassign, or promote a 458 student or teacher in a school or educational institution, or judicial review of the acti on; 459 (e) an application for employment and internal personnel action within an agency 460 concerning its own employees, or judicial review of the action; 461 (f) the issuance of a citation or assessment under Title 34A, Chapter 6, Utah 462 Occupational Safety and Health Act, and Title 58, Occupations and Professions, exce pt that 463 this chapter governs an agency action commenced by the employer, licensee, or other per son 464 authorized by law to contest the validity or correctness of the citation or asses sment; 465 (g) state agency action relating to management of state funds, the manageme nt and 466 disposal of school and institutional trust land assets, and contracts for the purchase or sale of 467 products, real property, supplies, goods, or services by or for the state, or by or for an agency of 468 the state, except as provided in those contracts, or judicial review of the action; 469 (h) state agency action under Title 7, Chapter 1, [Article ] Part3, Powers and Duties of 470 Commissioner of Financial Institutions, Title 7, Chapter 2, Possession of Depository Institution 471 by Commissioner, Title 7, Chapter 19, Acquisition of Failing Depository Institutions or 472 Holding Companies, and Title 63G, Chapter 7, Governmental Immunity Act of Utah, or 473 judicial review of the action; 474 (i) the initial determination of a person's eligibility for unemployment benefi ts, the 475 initial determination of a person's eligibility for benefits under Title 34A, C hapter 2, Workers' 476 Compensation Act, and Title 34A, Chapter 3, Utah Occupational Disease Act, or the initi al 477 determination of a person's unemployment tax liability;

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- 18 - 478 (j) state agency action relating to the distribution or award of a monetary gr ant to or 479 between governmental units, or for research, development, or the arts, or judicial re view of the 480 action; 481 (k) the issuance of a notice of violation or order under Title 26, Chapter 8a, Utah 482 Emergency Medical Services System Act, Title 19, Chapter 2, Air Conservati on Act, Title 19, 483 Chapter 3, Radiation Control Act, Title 19, Chapter 4, Safe Drinking Water Act, Title 19, 484 Chapter 5, Water Quality Act, Title 19, Chapter 6, Part 1, Solid and Hazardous Waste Ac t, 485 Title 19, Chapter 6, Part 4, Underground Storage Tank Act, or Title 19, Chapter 6, Part 7, Used 486 Oil Management Act, or Title 19, Chapter 6, Part 10, Mercury Switch Removal Act , except 487 that this chapter governs an agency action commenced by a person authorized by law to conte st 488 the validity or correctness of the notice or order; 489 (l) state agency action, to the extent required by federal statute or regulat ion, to be 490 conducted according to federal procedures; 491 (m) the initial determination of a person's eligibility for government or public 492 assistance benefits; 493 (n) state agency action relating to wildlife licenses, permits, tags, and c ertificates of 494 registration; 495 (o) a license for use of state recreational facilities; 496 (p) state agency action under Title 63G, Chapter 2, Government Records Access and 497 Management Act, except as provided in Section 63G-2-603; 498 (q) state agency action relating to the collection of water commissioner fe es and 499 delinquency penalties, or judicial review of the action; 500 (r) state agency action relating to the installation, maintenance, and repair of headgates, 501 caps, values, or other water controlling works and weirs, flumes, meters, or other wat er 502 measuring devices, or judicial review of the action; 503 (s) the issuance and enforcement of an initial order under Section 73-2-25; 504 (t) (i) a hearing conducted by the Division of Securities under Section 61-1-11.1; and 505 (ii) an action taken by the Division of Securities pursuant to a hearing conducted under

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- 19 - 506 Section 61-1-11.1, including a determination regarding the fairness of an issuance or exc hange 507 of securities described in Subsection 61-1-11.1(1); and 508 (u) state agency action relating to water well driller licenses, wate r well drilling 509 permits, water well driller registration, or water well drilling construction standards, or judicial 510 review of the action. 511 (3) This chapter does not affect a legal remedy otherwise available to: 512 (a) compel an agency to take action; or 513 (b) challenge an agency's rule. 514 (4) This chapter does not preclude an agency, prior to the beginning of an adjudicative 515 proceeding, or the presiding officer during an adjudicative proceeding from: 516 (a) requesting or ordering a conference with parties and interested persons to: 517 (i) encourage settlement; 518 (ii) clarify the issues; 519 (iii) simplify the evidence; 520 (iv) facilitate discovery; or 521 (v) expedite the proceeding; or 522 (b) granting a timely motion to dismiss or for summary judgment if the requireme nts of 523 Rule 12(b) or Rule 56 of the Utah Rules of Civil Procedure are met by the moving party, 524 except to the extent that the requirements of those rules are modified by this chapt er. 525 (5) (a) A declaratory proceeding authorized by Section 63G-4-503 is not governed by 526 this chapter, except as explicitly provided in that section. 527 (b) Judicial review of a declaratory proceeding authorized by Section 63G-4-503 is 528 governed by this chapter. 529 (6) This chapter does not preclude an agency from enacting a rule affecting or 530 governing an adjudicative proceeding or from following the rule, if the rule is enacted 531 according to the procedures outlined in Title 63G, Chapter 3, Utah Administrative Rulemaking 532 Act, and if the rule conforms to the requirements of this chapter. 533 (7) (a) If the attorney general issues a written determination that a provis ion of this

### S.B. 11 Enrolled Copy

- 20 - 534 chapter would result in the denial of funds or services to an agency of the state from the federal 535 government, the applicability of the provision to that agency shall be suspended to the exte nt 536 necessary to prevent the denial. 537 (b) The attorney general shall report the suspension to the Legislature at its next 538 session. 539 (8) Nothing in this chapter may be interpreted to provide an independent basis for 540 jurisdiction to review final agency action. 541 (9) Nothing in this chapter may be interpreted to restrict a presiding officer, f or good 542 cause shown, from lengthening or shortening a time period prescribed in this chapter, exc ept 543 the time period established for judicial review. 544 (10) Notwithstanding any other provision of this section, this chapter does not apply to 545 a permit review adjudicative proceeding, as defined in Section 19-1-301.5, except to the ext ent 546 expressly provided in Section 19-1-301.5.
547 Section 6. Section 78A-4-103 is amended to read:
548 78A-4-103. Court of Appeals jurisdiction. 549 (1) The Court of Appeals has jurisdiction to issue all extraordinary writs and to i ssue 550 all writs and process necessary: 551 (a) to carry into effect its judgments, orders, and decrees; or 552 (b) in aid of its jurisdiction. 553 (2) The Court of Appeals has appellate jurisdiction, including jurisdiction of 554 interlocutory appeals, over: 555 [(a) the final orders and decrees ] 556 (a) (i) a final order or decree resulting from: 557 (A) a

formal adjudicative [proceedings of state agencies or appeals ] proceeding of a 558 state agency; or 559 (B) a permit review adjudicative proceeding, as defined in Section 19-1-301.5; or 560 (ii) an appeal from the district court review of aninformal adjudicative [proceedings of 561 the agencies, except ] proceeding of an agency other than the following:

### Enrolled Copy S.B. 11

- 21 - 562 (A) the Public Service Commission[, ]; 563 (B) the State Tax Commission[, ]; 564 (C) the School and Institutional Trust Lands Board of Trustees[, ]; 565 (D) the Division of Forestry, Fire, and State Lands [actions ], for an action reviewed by 566 the executive director of the Department of Natural Resources[, ]; 567 (E) the Board of Oil, Gas, and Mining[, and ]; or 568 (F) the state engineer; 569 (b) appeals from the district court review of: 570 (i) adjudicative proceedings of agencies of political subdivisions of the state or other 571 local agencies; and 572 (ii) a challenge to agency action under Section 63G-3-602; 573 (c) appeals from the juvenile courts; 574 (d) interlocutory appeals from any court of record in criminal cases, except those 575 involving a charge of a first degree or capital felony; 576 (e) appeals from a court of record in criminal cases, except those involving a 577 conviction or charge of a first degree felony or capital felony; 578 (f) appeals from orders on petitions for extraordinary writs sought by persons who are 579 incarcerated or serving any other criminal sentence, except petitions constituting a challenge to 580 a conviction of or the sentence for a first degree or capital felony; 581 (g) appeals from the orders on petitions for extraordinary writs challenging the 582 decisions of the Board of Pardons and Parole except in cases involving a first degree o r capital 583 felony; 584 (h) appeals from district court involving domestic relations cases, including, but not 585 limited to, divorce, annulment, property division, child custody, support, parent-time, 586 visitation, adoption, and paternity; 587 (i) appeals from the Utah Military Court; and 588 (j) cases transferred to the Court of Appeals from the Supreme Court. 589 (3) The Court of Appeals upon its own motion only and by the vote of four judges of

### S.B. 11 Enrolled Copy

- 22 - 590 the court may certify to the Supreme Court for original appellate review and dete rmination any 591 matter over which the Court of Appeals has original appellate jurisdiction. 592 (4) The Court of Appeals shall comply with the requirements of Title 63G, Chapter 4, 593 Administrative Procedures Act, in its review of agency adjudicative proceeding s.