State ofUtah 

GARY R. HERBERT 

Governor 

GREG BELL 

Lieutenant Governor 

March 14, 2012 

Department of 

Environmental Quality 

Amanda Smith 

Executive Director 

DIVISION OF AIR QUALITY 

Bryce C. Bird 

Director 

James B. Martin, Regional Administrator 

Air and Radiation Program 

US EPA Region 8 

1595 Wynkoop Street 

Denver, CO 80202-1129 

Dear Mr. Martin: 

DAQP-014-12 

Enclosed please find, for your review, one hard copy and one electronic copy of the administrative 

documentation in support of Governor Herbert's February 10, 2012, submittal of revisions to 

R307-405, Permits: Major Sources in Attq.inment or Unclassified Areas (PSD). 

If you have questions, you can reach me at (801) 536-4064. I look forward to working with you 

and your staff toward approval ofthis submittal. 

Sincerely, 

~--~ Bryce C. Bird, 

Director 

BB/MB 

Enclosures 

195 North 1950 West·· Salt Lake City, UT 

Mailing Address: P.O. Box 144820 • Salt Lake City, UT 84114-4820 

Telephone (801) 536-4000 • Fax (801)536-4099 • T.D.D. (801) 536-4414 

www.deq.utah.gov 

Printed on I 00% recycled paper 
State of Utah 

GARY R. HERBERT 

Governor 

GREG BELL 

Lieutenant Governor 

Office of the Governor 

James B. Martin, Regional Administrator 

US EPA Region VIII 

1595 Wynkoop Street 

Denver, Colorado 80202-1129 

Dear Mr. Martin: 

February 10, 2012 

Enclosed for your approval are revisions to R307-405, Permits: Major 

Sources in Attainment or Unclassified Areas (PSD). These revisions update the 

incorporation by reference to the July 1, 2011, version of the Code ofF ederal 

Regulations and remove changes to the major source baseline date that were 

disapproved by EPA on July 15, 2011. 

The Utah Division of Air Quality is submitting supporting documentation in 

both electronic and hard copy formats. The electronic and hard copy documents are 

exact duplicates. If you have questions about this request, you may call Bryce Bird, 

Director of the Utah Division of Air Quality, at (801) 536-4064. 

Enclosures 

Sincerely, 

~fL~...__, Gary R. Herbert. 

Governor 

Utah State Capitol, Suite 200 o P.O. Box 142220 o Salt Lake City, Utah 84114-2220 o Telephone (801) 538-1000 
UTAH

Administrative Documentation

R307-405 

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 

March 15, 2012
UTAH 

ADMINISTRATIVE DOCUMENTATION March 2012
R307-204 

ADMINISTRATIVE DOCUMENTATION

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 R307-405 ........................................................................................................................ P–1 

R307-405: DAR Bulletin (December 1, 2011) Rule Analysis Form, DAR #35413) ....................................... P–8 

Public Hearing

Hearing Statement ....................................................................................................................... H–1 

Nonsubstantive Change

Text of R307-405-3 ....................................................................................................................... N–1 

DAR Submittal ....................................................................................................................... N–4 

DAR Bulletin (March 15, 2012) .................................................................................................................... N–6 

Effective Rule 

 Final Text of R307-405 ........................................................................................................................ E–1 

R307-328: DAR Bulletin (March 1, 2012) Effective Date Notice .................................................................... E–4 

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 statewide program. ................................................................................................................................2 

19-2-102. Definitions...................................................................................................................................................2 

19-2-103. Members of board -- Appointment -- Terms -- Organization -- Per 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 authority 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 adoption -- Orders of executive secretary -- Adoption of emission 

control requirements......................................................................................................................................................7 

19-2-109.1. Operating permit required -- Emissions fee -- Implementation. ..............................................................7 

19-2-109.2. Small business assistance program. .........................................................................................................9 

19-2-109.3. Public access to information. ...................................................................................................................9 

19-2-109.5. Private sector air quality permitting professionals certification program.................................................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 emergency -- 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 violation of chapter or rules............................................................................................11 

19-2-115. Violations -- Penalties -- Reimbursement for expenses. ...........................................................................11 

19-2-116. Injunction or other remedies to prevent 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 injunction 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 political subdivisions authorized........................................................................................13 

19-2-122. Cooperative agreements between political subdivisions and department. ................................................13 

19-2-123. Tax relief to encourage investment in facilities -- Sales and use tax exemption.......................................13 

19-2-124. Application for certification of pollution control facility -- Refunds -- Interest. ......................................13 

19-2-125. Action on application for certification. .....................................................................................................14 

19-2-126. Revocation of certification -- Grounds -- Procedure.................................................................................14 

19-2-127. Rules for administering certification for tax relief....................................................................................15 

C – 1
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 health 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 consideration 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 contaminants 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 the 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 presence or location, or to 

assess the condition of, asbestos-containing material or 

suspected asbestos-containing material, 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 Standard for Asbestos, that 

hand pressure can crumble, pulverize, 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 installed 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 elimination 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, elimination, or reduction of or 

redesign to eliminate or reduce 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, septic tanks, or other facilities 

for human waste, nor any property installed, constructed, or 

used for the moving of sewage to the collection facilities of 

a public or quasi-public sewerage system. 

C – 2
 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 director 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, adjust 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 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 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 salary, 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 reports 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 and maintenance program for 

diesel-powered motor vehicles; 

 (f) implementing an operating 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 maintenance programs after 

obtaining agreement from the counties that would be 

affected by the requirements; 

C – 3
 (h) with the approval of the governor, 

implementing in air quality nonattainment areas employerbased trip reduction programs applicable to businesses 

having more than 100 employees 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 the 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, Subchapter 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, enforce 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 operational 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 causes, 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 parts 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, contract, 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 federal 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 source 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 practice, certification, and 

clearance air sampling requirements for persons who: 

 (i) contract for hire to conduct demolition, 

renovation, salvage, encapsulation 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 Hazard 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, abatement project designers, 

C – 4
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 certification 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 certification 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 installed or is operating monitoring 

equipment that is equivalent to equipment 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 identified 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 Conservation Act, determines 

annually on or before July 1 is at least as effective 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 include motor vehicles that 

are: 

 (i) held for lease or rental 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 emergency 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 demonstrating 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 the national ambient 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). 

C – 5
 (3) (a) After evaluation of reasonably available 

pollution control strategies, and as part of a state 

implementation plan demonstrating 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 provisions of this section; 

 (b) definitions of fleet owners or operators; 

 (c) definitions of vehicles exempted from this 

section by rule; 

 (d) certification requirements 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 Clean Air Act may be more 

stringent than the corresponding 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 environmental 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 the 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 existing air pollution resources of 

the state; 

 (b) advise, consult, and cooperate with other 

agencies of the state, the federal 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, participate in, or conduct studies, 

investigations, research, and demonstrations 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 inventories 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, extension, 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, specifications, 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 construction, 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 

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 (k) represent the state with the specific 

concurrence of the executive director in all matters 

pertaining to interstate air pollution, 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 reasonably 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 discharged, 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 construction, modification, installation, 

or establishment of the air contaminant source or indirect source, 

the submission of plans, specifications, and other information as he 

finds necessary to determine whether the proposed construction, 

modification, installation, or establishment 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 secretary 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 after the receipt of plans, 

specifications, or other information required under this subsection, 

the executive secretary determines that the proposed construction, 

installation, or establishment or any part of it will not be in accord 

with the requirements of this chapter 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 information, he shall issue an order 

prohibiting the construction, installation, 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 law judge as provided by Section 

19-1-301. Following the hearing and 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, shall 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 least twice in any newspaper 

of general circulation in the area affected; and 

 (B) published, in accordance 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. 

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 (d) "Program" means the air pollution operating 

permit program established under 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 secretary under procedures the 

board establishes by rule. 

 (b) A person is not required to submit an 

operating permit application 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 the 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 conditions of issued operating 

permits to incorporate applicable 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 required to obtain a permit. The 

emissions fee established under this 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 Section 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 pay 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, plus interest on the fee computed 

at 12% annually; or 

 (b) revoke the operating permit. 

 (8) The owner or operator 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, Administrative 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 section 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 and administering the program 

and the small business assistance 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 the 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. 

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 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 conforms 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 members expire, the department 

shall appoint each new member or reappointed member to a 

four-year term. 

 (b) Notwithstanding the requirements of 

Subsection (a), the department shall, at the time of 

appointment or reappointment, adjust the length of terms to 

ensure that the terms of panel members are staggered so 

that approximately half of the 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 and 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, including consultants and employees 

of companies that may seek air quality permits from the 

division. Any program established under this section shall 

include: 

 (a) a training program established and operated 

by the department, which describes 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 a 

C – 9
notice of intent or operating permit application under this 

chapter. 

 (4) Any program under this section shall provide 

for revocation of any certification 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 with department application 

requirements; or 

 (c) prepared any air quality 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 the 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 emission 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 board for a variance from its 

rules. 

 (b) The board may grant the requested variance 

following an announced public meeting, if it finds, after 

considering the endangerment to human health and safety 

and other relevant factors, that compliance with the rules 

from which variance is sought would produce serious 

hardship without equal or greater benefits to the public. 

 (2) A variance may not be granted under this 

section until the board has considered 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 requirements of Subsection (1) and 

for time periods and under conditions 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, abatement, 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 required 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 expeditious 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. 

C – 10
 (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 receipt of an application 

for renewal, the board shall give public notice of the 

application as required 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 heating 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 States 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 violates 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 for violations described in 

15 U.S.C.A. 2647, Toxic Substances Control Act, 

Subchapter II - Asbestos Hazard Emergency Response, 

may not exceed the amounts specified 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 violates 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, established or organized for any 

purpose, and includes a corporation, company, association, 

firm, partnership, joint stock company, foundation, 

C – 11
institution, trust, society, union, or any other association of 

persons. 

 (iii) "Serious bodily injury" means bodily injury 

which involves a substantial risk 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 with criminal negligence: 

 (A) releases into the ambient air any hazardous 

air pollutant; and 

 (B) places another person 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 that the person is placing 

another person in imminent danger of death or serious 

bodily injury. 

 (d) If a person is an organization, it shall, upon 

conviction of violating Subsection (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 acted 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 attributed 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 affirmative 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 defense 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 federal 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 making 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 any 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 welfare, 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 represented 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 executive 

C – 12
secretary, 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 chapter is prima facie evidence 

of contempt which is punishable 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, riot, or other 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 other 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 taxes 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, constructed, 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 in 

C – 13
Subsections 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 certified 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 prescribed 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 reduction served or to be served by 

the facility. 

 (b) The board may require any further 

information it finds necessary 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, control, 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 notice 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 date notice of revocation was 

received by the holder. 

 (3) As soon as a revocation under this section is 

final, the board shall notify the State Tax Commission of 

the revocation. 

C – 14
 (4) (a) If the certification of a pollution control 

facility is revoked, all prior tax 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 all other matters pertaining to 

the board in administering certification for tax relief on 

pollution control facilities. 

C – 15
Utah Administrative Rulemaking Act 

Utah Code Title 63G, Chapter 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 Rulemaking - 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 Rules created -- Appointment of director. ........................................................ 5

63G-3-402. Division of Administrative Rules -- Duties generally. ................................................................................. 6

63G-3-403. Repeal and reenactment of Utah Administrative Code. ............................................................................... 6

Part 5. Legislative Oversight. ............................................................................................................................................... 7

63G-3-501. Administrative Rules Review Committee. ................................................................................................... 7

63G-3-502. Legislative reauthorization of agency 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 official compilation of rules -- 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 Chapter 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, change 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 licenses, grant or withhold relief 

from legal obligations, or perform 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 the division and entitled "Utah 

Administrative Code." 

(6) "Director" means the director of the Division of 

Administrative Rules. 

C – 16
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" means 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, governmental 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 including 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 management 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 adjudicative 

proceedings, 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 Chapter 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 facility, 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 administrative 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 all 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 provided 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; 

C – 17
3 

(ii) state agency implementation plans 

mandated by the federal 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, and are available 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 Chapter 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 federal mandates; and 

(d) rules made by the division to implement this 

chapter. 

(3) Subject to the requirements 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 file 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 consider 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 consider, 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 performance 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; 

C – 18
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 public 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 may 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 made 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 presented at public hearings 

conducted by the agency within the time period under 

Subsection (11)(a). 

(12) (a) Except as provided 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 days of publication. 

 (13) (a) As used in this 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 provision 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 rulemaking 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 rule, or repeal of a rule if: 

(a) a public hearing is required 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 Chapter 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 containing 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 last change in proposed rule. 

(e) A changed proposed rule and its associated 

proposed rule lapse if a notice of effective date or 

another change to a proposed rule is not filed with the 

division within 120 days of publication 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 procedures specified in Section 63G-3-

301. 

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5 

Renumbered and Amended by Chapter 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 Chapter 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, amend, 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 statements, 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 prior 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 division 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 review, described in 

Subsection (3); or 

(ii) an extension described in Subsection (6). 

Renumbered and Amended by Chapter 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 Division of Administrative Rules, 

to be administered by a director. 

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(2) The director of administrative rules shall be 

appointed by the executive director with the approval of the 

governor. 

Renumbered and Amended by Chapter 382, Laws of Utah 2008 

General Session, effective May 5, 2008 (formerly Section 63-46a-9.5) 

63G-3-402. Division of Administrative Rules -- Duties 

generally. 

(1) The Division of Administrative 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 rules, 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 determines necessary to 

implement this chapter; 

(i) distribute without charge the bulletin and 

administrative code to state-designated repositories, the 

Administrative Rules Review Committee, the Office of 

Legislative Research and General 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 publications 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 uniform 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 publication 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 Chapter 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 obsolete or redundant words; 

(e) correcting obvious errors 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; 

C – 21
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(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 publication 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 designated 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 Chapter 382, Laws of Utah 2008 

General 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 speaker 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 chairmen of the appropriation 

subcommittee that have jurisdiction over the agency 

whose existing rules are being reviewed to participate as 

nonvoting, ex officio members 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 principles 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 chairs of the Appropriation 

Subcommittee that have jurisdiction over the agency 

whose rules are the subject of the findings. 

C – 22
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(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 recommendations 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 Chapter 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 should 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 legislative 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 governor 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 may 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 Chapter 382, Laws of Utah 2008 

General 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 section, "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, amendment, 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 its 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 rulemaking 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 challenge 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. 

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(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 district 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 legal 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 constitutional 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 rulemaking 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 not the plaintiff has requested 

the agency review under Section 63G-3-601. 

Renumbered and Amended by Chapter 382, Laws of Utah 2008 

General 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 procedural 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 substantial 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 rule shall be commenced within 

two years of the date the change was made. 

Renumbered and Amended by Chapter 382, Laws of Utah 2008 

General Session, effective May 5, 2008 (formerly Section 63-46a-14) 

Part 7. Official Compilation 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. All courts shall take judicial 

notice of the code and its provisions. 

Renumbered and Amended by Chapter 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; and 

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Utah Administrative Rulemaking 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 Chapter 382, Laws of Utah 2008 

General Session, effective May 5, 2008 (formerly Section 63-46a-9.6) 

NOTE: Source http://le.utah.gov/~code/TITLE63G/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. 

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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 

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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 

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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 

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August 1, 2009 Utah Administrative Code - 4 - 

rule, including relevant 

affiliation, if any; 

 (d) include a statement 

as 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 time 

frame provided by Section 63G3-601. 

 (2) The petitioned 

agency may, within the time 

frame 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 

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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

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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 Sections 

63G-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 review 

required 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 

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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 

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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 

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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 the 

procedures 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.

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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. 

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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 to 

Subsections 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, 

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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 reasoned 

narrative 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 Implemented 

or 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-

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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 as 

required 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 

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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 agency 

and 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

C – 39

Proposed Rule

R307. Environmental Quality, Air Quality.

R307-405. Permits: Major Sources in Attainment or Unclassified 

Areas (PSD).

R307-405-1. Purpose.

 This rule implements the federal Prevention of Significant 

Deterioration (PSD) permitting program for major sources and major 

modifications in attainment areas and maintenance areas as 

required by 40 CFR 51.166. This rule does not include the routine 

maintenance, repair and replacement provisions that were vacated 

by the DC Circuit Court of Appeals on March 17, 2006. This rule 

supplements, but does not replace, the permitting requirements of 

R307-401. 

R307-405-2. Applicability.

 (1) All references to 40 CFR in R307-405 shall mean the 

version that is in effect on July 1, [2008]2011. 

 (2) The provisions of 40 CFR 52.21(a)(2) are hereby 

incorporated by reference. 

 (3) Notwithstanding the exemptions in R307-401, any source 

that is subject to R307-405 is subject to the requirement to 

obtain an approval order in R307-401-5 through 8. 

R307-405-3. Definitions.

 (1) Except as provided in (2) and (9) below, the definitions 

contained in 40 CFR 52.21(b) are hereby incorporated by reference. 

 (2)(a)[(i) "Major Source Baseline Date" means: 

 (A) in the case of particulate matter: 

 (I) for Davis, Salt Lake, Utah and Weber Counties, the date 

that EPA approves the PM10 maintenance plan that was adopted by 

the Board on July 6, 2005; 

 (II) for all other areas of the State, January 6, 1975; 

 (B) in the case of sulfur dioxide: 

 (I) for Salt Lake County, the date that EPA approves the 

sulfur dioxide maintenance plan that was adopted by the Board on 

January 5, 2005; 

 (II) for all other areas of the State, January 6, 1975; and 

 (C) in the case of nitrogen dioxide, February 8, 1988. 

 (ii) "Minor Source Baseline Date" means the earliest date 

after the trigger date on which a major stationary source or a 

major modification subject to 40 CFR 52.21 or R307-405 submits a 

complete application under the relevant regulations. The trigger 

date is: 

 (A) In the case of particulate matter and sulfur dioxide, 

August 7, 1977, and 

 (B) in the case of nitrogen dioxide, February 8, 1988. 

 (iii) The baseline date is established for each pollutant 

for which increments or other equivalent measures have been 

established if: 

 (A) the area in which the proposed source or modification 

would construct is designated as attainment or unclassifiable 

under section 107(d)(i)(D) or (E) of the Act for the pollutant on 

the date of its complete application under 40 CFR 52.21 or R307-

405; and 

P - 1
 (B) in the case of a major stationary source, the pollutant 

would be emitted in significant amounts, or, in the case of a 

major modification, there would be a significant net emissions 

increase of the pollutant. 

 (iv) Any minor source baseline date established originally 

for the TSP increments shall remain in effect and shall apply for 

purposes of determining the amount of available PM10 increments, 

except that the executive secretary shall rescind a minor source 

baseline date where it can be shown, to the satisfaction of the 

executive secretary, that the emissions increase from the major 

stationary source, or net emissions increase from the major 

modification, responsible for triggering that date did not result 

in a significant amount of PM10 emissions. 

 (b)] In the definition of "baseline area" in 40 CFR 

52.21(b)(15)(ii)(b) insert the words "or R307-405" after "Is 

subject to 40 CFR 52.21". 

 [(c)](b) "Reviewing Authority" means the executive 

secretary. 

 [(d)](c)(i) The term "Administrator" shall be changed to 

"executive secretary" throughout R307-405, except as provided in 

(ii). 

 (ii) The term "Administrator" shall be changed to "EPA 

Administrator" in the following incorporated sections: 

 (A) 40 CFR 52.21(b)(17), 

 (B) 40 CFR 52.21(b)(37)(i), 

 (C) 40 CFR 52.21(b)(43), 

 (D) 40 CFR 52.21(b)(48)(ii)(c), 

 (E) 40 CFR 52.21(b)(50)(i), 

 (F) 40 CFR 52.21(l)(2), 

 (G) 40 CFR 52.21(p)(2), and 

 (H) 40 CFR 51.166(q)(2)(iv). 

 [(e)](d) The following definitions or portions of 

definitions that apply to the equipment repair and replacement 

provisions are not incorporated because these provisions were 

vacated by the DC Circuit Court of Appeals on March 17, 2006: 

 (i) in the definition major modification in 40 CFR 

52.21(b)(2), the second sentence in subparagraph (iii)(a), 

 (ii) the definition of "process unit" in 40 CFR 

52.21(b)(55), 

 (iii) the definition of "functionally equivalent component" 

in 40 CFR 52.21(b)(56), 

 (iv) the definition of "fixed capital cost" in 40 CFR 52.21 

(b)(57), and 

 (v) the definition of "total capital investment" in 40 CFR 

52.21(b)(58). 

 (f) In the definition of "Regulated NSR pollutant" in 40 CFR 

52.21(b)(50), subparagraph (iv) shall be changed to read, "Any 

pollutant that otherwise is subject to regulation under the Act." 

 A new subparagraph (v) shall be added that reads, "The term 

regulated NSR pollutant shall not include any or all hazardous air 

pollutants either listed in section 112 of the federal Clean Air 

Act, or added to the list pursuant to section 112(b)(2) of the 

federal Clean Air Act, and which have not been delisted pursuant 

P - 2
to section 112(b)(3) of the federal Clean Air Act, unless the 

listed hazardous air pollutant is also regulated as a constituent 

or precursor of a general pollutant listed under section 108 of 

the federal Clean Air Act." 

 (3) "Air Quality Related Values," as used in analyses under 

40 CFR 52.21 (p) that is incorporated by reference in R307-405-17, 

means those special attributes of a Class I area, assigned by a 

federal land manager, that are adversely affected by air quality. 

 (4) "Heat input" means heat input as defined in 40 CFR 

52.01(g), that is hereby incorporated by reference. 

 (5) "Title V permit" means any permit or group of permits 

covering a Part 70 source that is issued, renewed, amended, or 

revised pursuant to R307-415. 

 (6) "Title V Operating Permit Program" means R307-415. 

 (7) The definition of "Good Engineering Practice (GEP) Stack 

Height" as defined in R307-410 shall apply in this rule. 

 (8) The definition of "Dispersion Technique" as defined in 

R307-410 shall apply in this rule. 

 (9) "Subject to regulation" means, for any air pollutant, 

that the pollutant is subject to either a provision in the federal 

Clean Air Act, or a nationally-applicable regulation codified by 

the Administrator in subchapter C of 40 CFR Chapter I, that 

requires actual control of the quantity of emissions of that 

pollutant, and that such a control requirement has taken effect 

and is operative to control, limit or restrict the quantity of 

emissions of that pollutant released from the regulated activity. 

Except that: 

 (a) "Greenhouse gases (GHGs)," the air pollutant defined in 

40 CFR 86.1818-12(a) (Federal Register, Vol. 75, Page 25686) as 

the aggregate group of six greenhouse gases: carbon dioxide, 

nitrous oxide, methane, hydrofluorocarbons, perfluorocarbons, and 

sulfur hexafluoride, shall not be subject to regulation except as 

provided in paragraphs (d) through (e) of this section. 

 (b) For purposes of paragraphs (c) through (e) of this 

section, the term "tons per year (tpy) CO2 equivalent emissions 

(CO2e)" shall represent an amount of GHGs emitted, and shall be 

computed as follows: 

 (i) Multiplying the mass amount of emissions (tpy), for each 

of the six greenhouse gases in the pollutant GHGs, by the gas's 

associated global warming potential published at Table A-1 to 

subpart A of 40 CFR Part 98 - Global Warming Potentials, that is 

hereby incorporated by reference (Federal Register, Vol. 74, Pages 

56395-96). 

 (ii) Sum the resultant value from paragraph (b)(i) of this 

section for each gas to compute a tpy CO2e. 

 (c) The term "emissions increase" as used in paragraphs (d) 

through (e) of this section shall mean that both a significant 

emissions increase (as calculated using the procedures in 40 CFR 

52.21 (a)(2)(iv) that is incorporated by reference in R307-405-2) 

and a significant net emissions increase (as defined in paragraphs 

40 CFR 52.21(b)(3) and (b)(23) that is incorporated by reference 

in R307-405-3) occur. For the pollutant GHGs, an emissions 

increase shall be based on tpy CO2e, and shall be calculated 

P - 3
assuming the pollutant GHGs is a regulated NSR pollutant, and 

''significant'' is defined as 75,000 tpy CO2e instead of applying 

the value in paragraph 40 CFR 52.21(b)(23)(ii). 

 (d) Beginning January 2, 2011, the pollutant GHGs is subject 

to regulation if: 

 (i) The stationary source is a new major stationary source 

for a regulated NSR pollutant that is not GHGs, and also will emit 

or will have the potential to emit 75,000 tpy CO2e or more; or 

 (ii) The stationary source is an existing major stationary 

source for a regulated NSR pollutant that is not GHGs, and also 

will have an emissions increase of a regulated NSR pollutant, and 

an emissions increase of 75,000 tpy CO2e or more; and, 

 (e) Beginning July 1, 2011, in addition to the provisions in 

paragraph (d) of this section, the pollutant GHGs shall also be 

subject to regulation: 

 (i) At a new stationary source that will emit or have the 

potential to emit 100,000 tpy CO2e; or 

 (ii) At an existing stationary source that emits or has the 

potential to emit 100,000 tpy CO2e, when such stationary source 

undertakes a physical change or change in the method of operation 

that will result in an emissions increase of 75,000 tpy CO2e or 

more. 

R307-405-4. Area Designations.

 (1) Pursuant to section 162(a) of the federal Clean Air Act, 

the following areas are designated as mandatory Class I areas: 

 (a) Arches National Park, 

 (b) Bryce Canyon National Park, 

 (c) Canyonlands National Park, 

 (d) Capitol Reef National Park, and 

 (e) Zion National Park. 

 (2) Pursuant to section 162(b) of the federal Clean Air Act, 

all other areas in Utah are designated as Class II unless 

designated as nonattainment areas. 

 (3) No areas in Utah are designated as Class III. 

R307-405-5. Area Redesignation.

 Any person may petition the Board to change the 

classification of an area designated under R307-405-4, except for 

mandatory Class I areas designated under R307-405-4(1). 

 (1) The petition shall contain a discussion of the reasons 

for the proposed redesignation, including a satisfactory 

description and analysis of the health, environmental, economic 

and social and energy effects of the proposed redesignation. 

 (2) The petition shall contain a demonstration that the 

proposed redesignation meets the criteria outlined in Section VIII 

of the State Implementation Plan and 40 CFR 51.166(e) and (g), 

that is hereby incorporated by reference. 

R307-405-6. Ambient Air Increments.

 The provisions of 40 CFR 52.21(c) are hereby incorporated by 

reference. 

P - 4
R307-405-7. Ambient Air Ceilings.

 The provisions of 40 CFR 52.21(d) are hereby incorporated by 

reference. 

R307-405-8. Exclusions from Increment Consumption.

 (1) The following concentrations shall be excluded in 

determining compliance with a maximum allowable increase: 

 (a) concentrations attributable to the increase in emissions 

from stationary sources which have converted from the use of 

petroleum products, natural gas, or both by reason of an order in 

effect under section 2(a) and (b) of the Energy Supply and 

Environmental Coordination Act of 1974 (or any superseding 

legislation) over the emissions from such sources before the 

effective date of such an order; 

 (b) concentrations attributable to the increase in emissions 

from sources which have converted from using natural gas by reason 

of a natural gas curtailment plan in effect pursuant to the 

Federal Power Act over the emissions from such sources before the 

effective date of such plan; 

 (c) concentrations of particulate matter attributable to the 

increase in emissions from construction or other temporary 

emission-related activities of new or modified sources; 

 (d) the increase in concentrations attributable to new 

sources outside the United States over the concentrations 

attributable to existing sources which are included in the 

baseline concentration; and 

 (e) concentrations attributable to the temporary increase in 

emissions of sulfur dioxide, particulate matter, or nitrogen 

dioxides from stationary sources which are affected by plan 

revisions approved by the EPA Administrator as meeting the 

criteria specified in 40 CFR 51.166(f)(4). The temporary increase 

shall not exceed 2 years in duration unless a longer time is 

approved by the EPA Administrator. This exclusion is not 

renewable. 

 (2) No exclusion of concentration under (1)(a) or (b) above 

shall apply more than five years after the effective date of the 

order to which paragraph (1)(a) refers or the plan to which 

paragraph (1)(b) refers, whichever is applicable. If both such 

order and plan are applicable, no such exclusion shall apply more 

than five years after the later of such effective dates. 

 (3) No exclusion under (1)(e) shall apply to an emission 

increase from a stationary source which would: 

 (a) impact a Class I area or an area where an applicable 

increment is known to be violated; or 

 (b) cause or contribute to a violation of the national 

ambient air quality standards. 

R307-405-9. Stack Heights.

 The provisions of 40 CFR 52.21(h) are hereby incorporated by 

reference. 

R307-405-10. Exemptions.

 (1) The provisions of 40 CFR 52.21(i)(1)(vi) through (viii) 

P - 5
are hereby incorporated by reference. 

 (2) The provisions of 40 CFR 52.21(i)(2) through (5) are 

hereby incorporated by reference. 

R307-405-11. Control Technology Review.

 The provisions of 40 CFR 52.21(j) are hereby incorporated by 

reference. 

R307-405-12. Source Impact Analysis.

 The provisions of 40 CFR 52.21(k) are hereby incorporated by 

reference. 

R307-405-13. Air Quality Models.

 The provisions of 40 CFR 52.21(l) are hereby incorporated by 

reference. 

R307-405-14. Air Quality Analysis.

 (1) The provisions of 40 CFR 52.21(m)(1)(i) through (iv), 

(vi), and (viii) are hereby incorporated by reference. 

 (2) The provisions of 40 CFR 52.21(m)(2) and (3) are hereby 

incorporated by reference. 

R307-405-15. Source Information.

 The provisions of 40 CFR 52.21(n) are hereby incorporated by 

reference. 

R307-405-16. Additional Impact Analysis.

 The provisions of 40 CFR 52.21(o) are hereby incorporated by 

reference. 

R307-405-17. Sources Impacting Federal Class I Areas: Additional 

Requirements.

 (1) The provisions of 40 CFR 52.21(p) are hereby 

incorporated by reference. 

 (2) The executive secretary will transmit to the EPA 

Administrator a copy of each permit application relating to a 

major stationary source or major modification and provide notice 

to the EPA Administrator of every action related to the 

consideration of such permit. 

R307-405-18. Public Participation.

 (1) Except as provided in (2), the provisions of 40 CFR 

51.166(q)(1) and (2) are hereby incorporated by reference. 

 (2) The phrase "within a specified time period" in 40 CFR 

51.166(q)(1) shall be replaced with the phrase "within 30 days of 

receipt of the PSD permit application". 

R307-405-19. Source Obligation.

 The provisions of 40 CFR 52.21(r) are hereby incorporated by 

reference. 

R307-405-20. Innovative Control Technology.

 (1) Except as provided in (2), the provisions of 40 CFR 

P - 6
52.21(v) are hereby incorporated by reference. 

 (2)(a) The reference to "40 CFR 124.10" in 40 CFR 

52.21(v)(1) shall be changed to "R307-405-18". 

 (b) 40 CFR 52.21(v)(2) shall be changed to read "The 

executive secretary shall, with the consent of the governors of 

other affected states, determine that the source or modification 

may employ a system of innovative control technology, if:". 

R307-405-21. Actuals PALs.

 (1) Except as provided in (2), the provisions of 40 CFR 

52.21(aa) are hereby incorporated by reference. 

 (2) (a) The reference to "51.165(a)(3)(ii) of this chapter" 

in 40 CFR 52.21(aa)(4)(ii) shall be changed to "R307-403". 

 (b) The reference to "51.165(a)(3)(ii) of this chapter" in 

40 CFR 52.21(aa)(8)(ii)(2) shall be changed to "R307-403". 

 (c) The references to "70.6(a)(3)(iii)(B) of this chapter" 

in 40 CFR 52.21(aa)(14)(ii) shall be changed to "R307-415-

6a(3)(c)(ii)". 

 (d) The date of "March 3, 2003" in 40 CFR 52.21(aa)(15)(i) 

and (ii) shall be changed to "June 16, 2006". 

R307-405-22. Banking of Emission Offset Credit in PSD Areas.

 Banking of emission offset credits in PSD areas will be 

permitted. To preserve banked emission reductions the executive 

secretary must identify them in either the Utah SIP or an order. 

The executive secretary will provide a registry to identify the 

person, private entity, or government authority that has the right 

to use or allocate the banked emission reduction and to record any 

transfer of or lien on these rights. 

KEY: air pollution, PSD, Class I area, greenhouse gases

Date of Enactment or Last Substantive Amendment: January 1, 2011

Notice of Continuation: February 5, 2009

Authorizing, and Implemented or Interpreted Law: 19-2-104

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Hearing 

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

public hearing. 

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Nonsubstantive 

Change 

R307. Environmental Quality, Air Quality.

R307-405. Permits: Major Sources in Attainment or Unclassified 

Areas (PSD).

R307-405-3. Definitions.

 (1) Except as provided in (2) and (9) below, the definitions 

contained in 40 CFR 52.21(b) are hereby incorporated by reference. 

 (2)(a) In the definition of "baseline area" in 40 CFR 

52.21(b)(15)(ii)(b) insert the words "or R307-405" after "Is 

subject to 40 CFR 52.21". 

 (b) "Reviewing Authority" means the executive secretary. 

 (c)(i) The term "Administrator" shall be changed to 

"executive secretary" throughout R307-405, except as provided in 

(ii). 

 (ii) The term "Administrator" shall be changed to "EPA 

Administrator" in the following incorporated sections: 

 (A) 40 CFR 52.21(b)(17), 

 (B) 40 CFR 52.21(b)(37)(i), 

 (C) 40 CFR 52.21(b)(43), 

 (D) 40 CFR 52.21(b)(48)(ii)(c), 

 (E) 40 CFR 52.21(b)(50)(i), 

 (F) 40 CFR 52.21(l)(2), 

 (G) 40 CFR 52.21(p)(2), and 

 (H) 40 CFR 51.166(q)(2)(iv). 

 (d) The following definitions or portions of definitions 

that apply to the equipment repair and replacement provisions are 

not incorporated because these provisions were vacated by the DC 

Circuit Court of Appeals on March 17, 2006: 

 (i) in the definition major modification in 40 CFR 

52.21(b)(2), the second sentence in subparagraph (iii)(a), 

 (ii) the definition of "process unit" in 40 CFR 

52.21(b)(55), 

 (iii) the definition of "functionally equivalent component" 

in 40 CFR 52.21(b)(56), 

 (iv) the definition of "fixed capital cost" in 40 CFR 52.21 

(b)(57), and 

 (v) the definition of "total capital investment" in 40 CFR 

52.21(b)(58). 

 [(f)](e) In the definition of "Regulated NSR pollutant" in 

40 CFR 52.21(b)(50), subparagraph (iv) shall be changed to read, 

"Any pollutant that otherwise is subject to regulation under the 

Act." A new subparagraph (v) shall be added that reads, "The term 

regulated NSR pollutant shall not include any or all hazardous air 

pollutants either listed in section 112 of the federal Clean Air 

Act, or added to the list pursuant to section 112(b)(2) of the 

federal Clean Air Act, and which have not been delisted pursuant 

to section 112(b)(3) of the federal Clean Air Act, unless the 

listed hazardous air pollutant is also regulated as a constituent 

or precursor of a general pollutant listed under section 108 of 

the federal Clean Air Act." 

 (3) "Air Quality Related Values," as used in analyses under 

40 CFR 52.21 (p) that is incorporated by reference in R307-405-17, 

means those special attributes of a Class I area, assigned by a 

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federal land manager, that are adversely affected by air quality. 

 (4) "Heat input" means heat input as defined in 40 CFR 

52.01(g), that is hereby incorporated by reference. 

 (5) "Title V permit" means any permit or group of permits 

covering a Part 70 source that is issued, renewed, amended, or 

revised pursuant to R307-415. 

 (6) "Title V Operating Permit Program" means R307-415. 

 (7) The definition of "Good Engineering Practice (GEP) Stack 

Height" as defined in R307-410 shall apply in this rule. 

 (8) The definition of "Dispersion Technique" as defined in 

R307-410 shall apply in this rule. 

 (9) "Subject to regulation" means, for any air pollutant, 

that the pollutant is subject to either a provision in the federal 

Clean Air Act, or a nationally-applicable regulation codified by 

the Administrator in subchapter C of 40 CFR Chapter I, that 

requires actual control of the quantity of emissions of that 

pollutant, and that such a control requirement has taken effect 

and is operative to control, limit or restrict the quantity of 

emissions of that pollutant released from the regulated activity. 

Except that: 

 (a) "Greenhouse gases (GHGs)," the air pollutant defined in 

40 CFR 86.1818-12(a) (Federal Register, Vol. 75, Page 25686) as 

the aggregate group of six greenhouse gases: carbon dioxide, 

nitrous oxide, methane, hydrofluorocarbons, perfluorocarbons, and 

sulfur hexafluoride, shall not be subject to regulation except as 

provided in paragraphs (d) through (e) of this section. 

 (b) For purposes of paragraphs (c) through (e) of this 

section, the term "tons per year (tpy) CO2 equivalent emissions 

(CO2e)" shall represent an amount of GHGs emitted, and shall be 

computed as follows: 

 (i) Multiplying the mass amount of emissions (tpy), for each 

of the six greenhouse gases in the pollutant GHGs, by the gas's 

associated global warming potential published at Table A-1 to 

subpart A of 40 CFR Part 98 - Global Warming Potentials, that is 

hereby incorporated by reference (Federal Register, Vol. 74, Pages 

56395-96). 

 (ii) Sum the resultant value from paragraph (b)(i) of this 

section for each gas to compute a tpy CO2e. 

 (c) The term "emissions increase" as used in paragraphs (d) 

through (e) of this section shall mean that both a significant 

emissions increase (as calculated using the procedures in 40 CFR 

52.21 (a)(2)(iv) that is incorporated by reference in R307-405-2) 

and a significant net emissions increase (as defined in paragraphs 

40 CFR 52.21(b)(3) and (b)(23) that is incorporated by reference 

in R307-405-3) occur. For the pollutant GHGs, an emissions 

increase shall be based on tpy CO2e, and shall be calculated 

assuming the pollutant GHGs is a regulated NSR pollutant, and 

''significant'' is defined as 75,000 tpy CO2e instead of applying 

the value in paragraph 40 CFR 52.21(b)(23)(ii). 

 (d) Beginning January 2, 2011, the pollutant GHGs is subject 

to regulation if: 

 (i) The stationary source is a new major stationary source 

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for a regulated NSR pollutant that is not GHGs, and also will 

emit or will have the potential to emit 75,000 tpy CO2e or more; 

or 

 (ii) The stationary source is an existing major stationary 

source for a regulated NSR pollutant that is not GHGs, and also 

will have an emissions increase of a regulated NSR pollutant, and 

an emissions increase of 75,000 tpy CO2e or more; and, 

 (e) Beginning July 1, 2011, in addition to the provisions in 

paragraph (d) of this section, the pollutant GHGs shall also be 

subject to regulation: 

 (i) At a new stationary source that will emit or have the 

potential to emit 100,000 tpy CO2e; or 

 (ii) At an existing stationary source that emits or has the 

potential to emit 100,000 tpy CO2e, when such stationary source 

undertakes a physical change or change in the method of operation 

that will result in an emissions increase of 75,000 tpy CO2e or 

more. 

KEY: air pollution, PSD, Class I area, greenhouse gases

Date of Enactment or Last Substantive Amendment: February 2, 2012

Notice of Continuation: February 5, 2009

Authorizing, and Implemented or Interpreted Law: 19-2-104

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NOTICE OF NONSUBSTANTIVE RULE

Agency Information

1. Agency: Environmental Quality - Air Quality

 Room no.: Fourth Floor

 Building:

 Street address 1: 195 N 1950 W

 Street address 2:

 City, state, zip: SALT LAKE CITY UT 84116-3085

 Mailing address 1: PO BOX 144820

 Mailing address 2:

 City, state, zip: SALT LAKE CITY UT 84114-4820

 Contact person(s):

Name: Phone: Fax: E-mail:

Mark Berger 801-536-4000 801-536-0085 mberger@utah.gov

(Interested persons may inspect this filing at the above address or at DAR during business hours)

Rule Information

DAR file no: 35872 Date filed: 02/14/2012 07:38 AM

State Admin Rule Filing Key: 152239

Utah Admin. Code ref. (R no.): R 307 - 405 - 3

Changed to Admin. Code ref. (R no.): - -

Title

2. Title of rule or section (catchline):

 Definitions

Content Summary

3. Purpose of or reason for the nonsubstantive change:

When the rule was recently proposed for amendment, DAQ neglected to change the reference from Subsection

"R307-405-3(f)" to "R307-405-3(e)".

Response Information

4. This change is a response to comments by the Administrative Rules Review Committee.

 No

Rule Change Summary

5. Summary of the nonsubstantive change:

 Subsection "R307-405-3(f)" is changed to "R307-405-3(e)".

Incorporated Materials

6. This rule adds, updates, or removes the following title of materials incorporated by references (a copy of materials

incorporated by reference must be submitted to DAR; if none, leave blank) :

Official Title of Materials Incorporated (from title page):

Publisher:

http://erules.rules.utah.gov/erules/secure/ruleFilingEdit.action?ruleId=152239

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Date Issued:

Issue, or version:

ISBN Number:

ISSN Number:

Cost of Incorporated Reference: 

Adds, updates, removes:

Indexing Information

7. Indexing information - keywords (maximum of four, in lower case, except for acronyms (e.g., "GRAMA") or proper

nouns (e.g., "Medicaid")):

air pollution

Class I area

PSD

greenhouse gases

File Information

8. Attach an RTF document containing the text of this rule change (filename):

 There is a document associated with this rule filing.

To the Agency

A nonsubstantive change becomes effective on the date the Division of Administrative Rules makes the change to the rule

in the Utah Administrative Code (see Section R15-4-6).

Agency Authorization

Agency head or designee, and title: Bryce Bird Director Date (mm/dd/yyyy): 02/13/2012

http://erules.rules.utah.gov/erules/secure/ruleFilingEdit.action?ruleId=152239

2 of 2 3/15/2012 8:24 AM

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Effective Rule 

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Certification