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 permit,

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
S.B. 11 Enrolled Copy

- 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.
Enrolled Copy S.B. 11

- 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 described in 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
S.B. 11 Enrolled Copy

- 4 -

86 (ii) assign the administrative law judge responsibilities in addition to conducting 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 further

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 proceeding 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
Enrolled Copy S.B. 11

- 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 adjudicative

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 Pollution Discharge

133 Elimination System permit for which the state has assumed primacy under the Federal 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 Waste Control

140 Board.

141 (b) "Dispositive action" means a final agency action that:
S.B. 11 Enrolled Copy

- 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 permit

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 challenge

169 to a permit order.
Enrolled Copy S.B. 11

- 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 proceeding.

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 filing 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 adjudicative

197 proceeding unless the person is granted the right to intervene under this Subsection (7).
S.B. 11 Enrolled Copy

- 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 challenged 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 review

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 substantially 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 allowing the

214 intervention; and

215 (C) in the petitioner's request for agency action, raises issues or arguments 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 filing deadline

224 described in Subsection (7)(b).

225 (8) (a) An administrative law judge shall conduct a permit review adjudicative
Enrolled Copy S.B. 11

- 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 agency

228 action, the administrative record shall consist of the following items, if they exist:

229 (i) the permit application, draft permit, and final permit;

230 (ii) each statement of basis, fact sheet, engineering review, or other substantive

231 explanation designated by the executive secretary as part of the basis for the decision 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 as 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 decision 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
S.B. 11 Enrolled Copy

- 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 factual

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 supplementation of the

263 record.

264 (9) (a) The administrative law judge shall review and respond to a request for agency

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 pleadings 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 Section 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 review

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 accordance with
Enrolled Copy S.B. 11

- 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 in

287 accordance with Subsection (4).

288 (b) The administrative law judge shall dismiss, with prejudice, any issue or argument

289 raised in a request for agency action that has not been preserved in accordance with Subsection

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 permit

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 record

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 further
S.B. 11 Enrolled Copy

- 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 substantial 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 review 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 dispositive

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.
Enrolled Copy S.B. 11

- 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 adjudicative

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 damage 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 prevail on the

355 merits of the underlying claim, or the case presents serious issues on the merits, 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 review

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 -- Limitations on

365 authority of board -- Inspections authorized.
S.B. 11 Enrolled Copy

- 14 -

366 (1) The board shall require that notice be given to the executive secretary by any person

367 planning to construct a new installation which will or might reasonably be expected to be a

368 source or indirect source of air pollution or to make modifications to an existing installation

369 which will or might reasonably be expected to increase the amount of or change the character

370 or effect of air contaminants discharged, so that the installation may be expected to be a source

371 or indirect source of air pollution, or by any person planning to install an air cleaning device 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 source or

375 indirect source, the submission of plans, specifications, and other information as he finds

376 necessary to determine whether the proposed construction, modification, installation, 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 secretary 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 meet the requirements

381 established by law.

382 (b) If within 90 days after the receipt of plans, specifications, or other information

383 required under this subsection, the executive secretary determines that the proposed

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 exceeding 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 construction,

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
Enrolled Copy S.B. 11

- 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 maintained 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 available.

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 located 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 it.

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 credentials.

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 -- Declaration 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 generalized 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, shall

419 order persons causing or contributing to the air pollution to reduce or discontinue immediately

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
S.B. 11 Enrolled Copy

- 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 executive

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 judge.

432 (3) Nothing in this section limits any power that the governor or any other officer has

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 provisions of

438 this chapter apply to every agency of the state and govern:

439 (a) state agency action that determines the legal rights, duties, privileges, 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 taxes, or the

447 issuance of a tax assessment, except that this chapter governs an agency action commenced by

448 a taxpayer or by another person authorized by law to contest the validity or correctness of the

449 action;
Enrolled Copy S.B. 11

- 17 -

450 (c) state agency action relating to extradition, to the granting of a pardon or parole, a

451 commutation or termination of a sentence, or to the rescission, termination, or revocation 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 facility, the Utah

454 State Hospital, the Utah State Developmental Center, or a person in the custody or jurisdiction

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 action;

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, except that

463 this chapter governs an agency action commenced by the employer, licensee, or other person

464 authorized by law to contest the validity or correctness of the citation or assessment;

465 (g) state agency action relating to management of state funds, the management 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] Part 3, 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 benefits, the

475 initial determination of a person's eligibility for benefits under Title 34A, Chapter 2, Workers'

476 Compensation Act, and Title 34A, Chapter 3, Utah Occupational Disease Act, or the initial

477 determination of a person's unemployment tax liability;
S.B. 11 Enrolled Copy

- 18 -

478 (j) state agency action relating to the distribution or award of a monetary grant to or

479 between governmental units, or for research, development, or the arts, or judicial review 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 Conservation 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 Act,

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 contest

488 the validity or correctness of the notice or order;

489 (l) state agency action, to the extent required by federal statute or regulation, 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 certificates 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 fees 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 water

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
Enrolled Copy S.B. 11

- 19 -

506 Section 61-1-11.1, including a determination regarding the fairness of an issuance or exchange

507 of securities described in Subsection 61-1-11.1(1); and

508 (u) state agency action relating to water well driller licenses, water 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 requirements 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 chapter.

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 provision 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 extent

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, for good

542 cause shown, from lengthening or shortening a time period prescribed in this chapter, except

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 extent

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 issue

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 an informal 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 or 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 determination 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 proceedings.