UTAH

Administrative Documentation

R307-110-28, Regional Haze. 

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

October 19, 2015
UTAH

ADMINISTRATIVE DOCUMENTATION October 2015
R307-110-28, Regional Haze.

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–25

Utah Administrative Code, R15, Administrative Rules................................................................................. C–42

Proposed for Public Comment

R307-110-28: Proposed R307-110-28 .............................................................................................................P-1

R307-110-28: Proposed Commitment SIP Language......................................................................................P–2

Public Hearing/Comments

R307-110-28: DAR Bulletin Notice of Public Comment Period (August 15, 2015)...................................... H–1

R307-110-28: Adoption memo for the rule and summary of public comments for the SIP............................H-3

Effective Rule

R307-110-28: Certified Copy of Final Rule Text .....................................................................................E–1

Final Enforceable Commitment SIP ................................................................................................................E–3

Final Enforceable Commitment SIP showing changes from the proposed text ...............................................E–5

Certification

Certification Statement.................................................................................................................................S–1


Utah Code

Page 1

Chapter 2

Air Conservation Act

Part 1

General Provisions

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.

Renumbered and Amended by Chapter 112, 1991 General Session

19-2-102 Definitions.

 As used in this chapter:

(1) "Air pollutant" means a substance that qualifies as an air pollutant as defined in 42 U.S.C. Sec.

7602.

(2) "Air pollutant source" means private and public sources of emissions of air pollutants.

(3) "Air pollution" means the presence of an air pollutant in the ambient air in the quantities, for

a duration, and under the conditions and circumstances that are 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 that portion of the atmosphere, external to buildings, to which the general

public has access.

(5) "Asbestos" means the asbestiform varieties of serpentine (chrysotile), riebeckite (crocidolite),

cummingtonite-grunerite, anthophyllite, actinolite-tremolite, and libby amphibole.

(6) "Asbestos-containing material" means a material containing more than 1% asbestos, as

determined using the method adopted in 40 C.F.R. 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.

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(8) "Board" means the Air Quality Board.

(9) "Clean school bus" means the same as that term is defined in 42 U.S.C. Sec. 16091.

(10) "Director" means the director of the Division of Air Quality.

(11) "Division" means the Division of Air Quality created in Section 19-1-105.

(12) "Friable asbestos-containing material" means a material containing more than 1% asbestos,

as determined using the method adopted in 40 C.F.R. 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.

Amended by Chapter 154, 2015 General Session

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

expenses.

(1) The board consists of the following nine members:

(a) the following non-voting member, except that the member may vote to break a tie vote

between the voting members:

(i) the executive director; or

(ii) an employee of the department designated by the executive director; and

(b) the following eight voting members, who shall be appointed by the governor with the consent

of the Senate:

(i) one representative who:

(A) is not connected with industry;

(B) is an expert in air quality matters; and

(C) is a Utah-licensed physician, a Utah-licensed professional engineer, or a scientist with

relevant training and experience;

(ii) two government representatives who do not represent the federal government;

(iii) one representative from the mining industry;

(iv) one representative from the fuels industry;

(v) one representative from the manufacturing industry;

(vi) one representative from the public who represents:

(A) an environmental nongovernmental organization; or

(B) a nongovernmental organization that represents community interests and does not

represent industry interests; and

(vii) one representative from the public who is trained and experienced in public health.

(2) A member of the board shall:

(a) be knowledgeable about air pollution matters, as evidenced by a professional degree, a

professional accreditation, or documented experience;

(b) be a resident of Utah;

(c) attend board meetings in accordance with the attendance rules made by the department

under Subsection 19-1-201(1)(d)(i)(A); and

(d) comply with all applicable statutes, rules, and policies, including the conflict of interest rules

made by the department under Subsection 19-1-201(1)(d)(i)(B).

(3) No more than five of the appointed members of the board shall belong to the same political

party.

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(4) A majority of the members of the board may not derive any significant portion of their income

from persons subject to permits or orders under this chapter.

(5)

(a) Members shall be appointed for a term of four years.

(b) Notwithstanding the requirements of Subsection (5)(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 half of the appointed board is appointed every two years.

(6) A member may serve more than one term.

(7) 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.

(8) When a vacancy occurs in the membership for any reason, the replacement shall be appointed

for the unexpired term.

(9) The board shall elect annually a chair and a vice chair from its members.

(10)

(a) The board shall meet at least quarterly.

(b) Special meetings may be called by the chair upon the chair's own initiative, upon the request

of the director, or upon the request of three members of the board.

(c) Three days' notice shall be given to each member of the board before a meeting.

(11) Five members constitute a quorum at a meeting, and the action of a majority of members

present is the action of the board.

(12) A member may not receive compensation or benefits for the member's service, but may

receive per diem and travel expenses in accordance with:

(a) Section 63A-3-106;

(b) Section 63A-3-107; and

(c) rules made by the Division of Finance pursuant to Sections 63A-3-106 and 63A-3-107.

Amended by Chapter 154, 2015 General Session

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 pollutants that may be emitted by an air

pollutant source;

(b) establishing air quality standards;

(c) requiring persons engaged in operations that 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 pollutant; and

(iii) provide access to records relating to emissions which cause or contribute to air pollution;

(d)

(i) implementing:

(A) Toxic Substances Control Act, Subchapter II, Asbestos Hazard Emergency Response, 15

U.S.C. 2601 et seq.;

(B) 40 C.F.R. Part 763, Asbestos; and

(C) 40 C.F.R. Part 61, National Emission Standards for Hazardous Air Pollutants, Subpart M,

National Emission Standard for Asbestos; and

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(ii) reviewing and approving asbestos management plans submitted by local education

agencies under the Toxic Substances Control Act, Subchapter II, Asbestos Hazard

Emergency Response, 15 U.S.C. 2601 et seq.;

(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;

(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);

(i) implementing lead-based paint training, certification, and performance requirements in

accordance with 15 U.S.C. 2601 et seq., Toxic Substances Control Act, Subchapter IV --

Lead Exposure Reduction, Sections 402 and 406; and

(j) to implement the requirements of Section 19-2-107.5.

(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)

(a) The board may:

(i) hold a hearing that is not an adjudicative proceeding relating to any aspect of, or matter in,

the administration of this chapter;

(ii) recommend that the director:

(A) issue orders necessary to enforce the provisions of this chapter;

(B) enforce the orders by appropriate administrative and judicial proceedings;

(C) institute judicial proceedings to secure compliance with this chapter; or

(D) advise, consult, contract, and cooperate with other agencies of the state, local

governments, industries, other states, interstate or interlocal agencies, the federal

government, or interested persons or groups; and

(iii) establish certification requirements for asbestos project monitors, which shall provide for

experience-based certification of a person who:

(A) receives relevant asbestos training, as defined by rule; and

(B) has acquired a minimum of 1,000 hours of asbestos project monitoring related work

experience.

(b) The board shall:

(i) to ensure compliance with applicable statutes and regulations:

(A) review a settlement negotiated by the director in accordance with Subsection 19-2-107(2)

(b)(viii) that requires a civil penalty of $25,000 or more; and

(B) approve or disapprove the settlement;

(ii) encourage voluntary cooperation by persons and affected groups to achieve the purposes of

this chapter;

(iii) meet the requirements of federal air pollution laws;

(iv) by rule in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act,

establish work practice and certification requirements for persons who:

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(A) contract for hire to conduct demolition, renovation, salvage, encapsulation work involving

friable asbestos-containing materials, or asbestos inspections if:

(I) the contract work is done on a site other than a residential property with four or fewer

units; or

(II) the contract work is done on a residential property with four or fewer units where a tested

sample contained greater than 1% of asbestos;

(B) conduct work described in Subsection (3)(b)(iv)(A) 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;

(C) conduct asbestos inspections in facilities subject to 15 U.S.C. 2601 et seq., Toxic

Substances Control Act, Subchapter II - Asbestos Hazard Emergency Response; or

(D) conduct lead-based paint inspections in facilities subject to 15 U.S.C. 2601 et seq., Toxic

Substances Control Act, Subchapter IV -- Lead Exposure Reduction;

(v) establish certification requirements for a person required under 15 U.S.C. 2601 et seq.,

Toxic Substances Control Act, Subchapter II - Asbestos Hazard Emergency Response, to

be accredited as an inspector, management planner, abatement project designer, asbestos

abatement contractor and supervisor, or an asbestos abatement worker;

(vi) 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;

(vii) establish certification requirements for a person required under 15 U.S.C. 2601 et seq.,

Toxic Control Act, Subchapter IV - Lead Exposure Reduction, to be accredited as an

inspector, risk assessor, supervisor, project designer, abatement worker, renovator, or dust

sampling technician; and

(viii) 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) A rule 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.

(6)

(a) The board may not require testing for asbestos or related materials on a residential property

with four or fewer units, unless:

(i) the property's construction was completed before January 1, 1981; or

(ii) the testing is for:

(A) a sprayed-on or painted on ceiling treatment that contained or may contain asbestos fiber;

(B) asbestos cement siding or roofing materials;

(C) resilient flooring products including vinyl asbestos tile, sheet vinyl products, resilient

flooring backing material, whether attached or unattached, and mastic;

(D) thermal-system insulation or tape on a duct or furnace; or

(E) vermiculite type insulation materials.

(b) A residential property with four or fewer units is subject to an abatement rule made under

Subsection (1) or (3)(b)(iv) if:

(i) a sample from the property is tested for asbestos; and

(ii) the sample contains asbestos measuring greater than 1%.

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(7) The board may not issue, amend, renew, modify, revoke, or terminate any of the following that

are subject to the authority granted to the director under Section 19-2-107 or 19-2-108:

(a) a permit;

(b) a license;

(c) a registration;

(d) a certification; or

(e) another administrative authorization made by the director.

(8) A board member may not speak or act for the board unless the board member is authorized by

a majority of a quorum of the board in a vote taken at a meeting of the board.

(9) Notwithstanding Subsection (7), the board may exercise all authority granted to the board by a

federally enforceable state implementation plan.

Amended by Chapter 154, 2015 General Session

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 order the director to 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.

Amended by Chapter 360, 2012 General Session

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 board 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;

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(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 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 an 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) A vehicle retrofit to operate on compressed natural gas in accordance with Section 19-1-406

qualifies as a clean fuel vehicle under this section.

(3) 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 require fleets in specified geographical areas to use clean

fuels if the board determines fleet use of clean fuels is:

(a) necessary to demonstrate maintenance of the national ambient air quality standards in an

area where they are required; and

(b) reasonably cost effective as compared with other similarly beneficial control strategies for

demonstrating maintenance of the national ambient air quality standards.

(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.

Amended by Chapter 154, 2015 General Session

19-2-106 Rulemaking authority and procedure.

(1)

(a) In carrying out the duties of Section 19-2-104, the board may make rules for the purpose of

administering a program under the federal Clean Air Act different than the corresponding

federal regulations which address the same circumstances if:

(i) the board holds a public comment period, as described in Title 63G, Chapter 3, Utah

Administrative Rulemaking Act, and a public hearing; and

(ii) the board finds that the different rule will provide reasonable added protections to public

health or the environment of the state or a particular region of the state.

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(b) The board shall consider the differences between an industry that continuously produces

emissions and an industry that episodically produces emissions, and make rules that reflect

those differences.

(2) The findings described in Subsection (1)(a)(ii) shall be:

(a) in writing; and

(b) based on evidence, studies, or other information contained in the record that relates to the

state of Utah and type of source involved.

(3) In making rules, the board may incorporate by reference corresponding federal regulations.

Amended by Chapter 80, 2015 General Session

19-2-107 Director -- Appointment -- Powers.

(1) The executive director shall appoint the director. The director shall serve under the

administrative direction of the executive director.

(2)

(a) The director shall:

(i) prepare and develop comprehensive plans for the prevention, abatement, and control of air

pollution in Utah;

(ii) advise, consult, and cooperate with other agencies of the state, the federal government,

other states and interstate agencies, and affected groups, political subdivisions, and

industries in furtherance of the purposes of this chapter;

(iii) review plans, specifications, or other data relative to air pollution control equipment or any

part of the air pollution control equipment;

(iv) under the direction of the executive director, represent the state in all matters relating to

interstate air pollution, including interstate compacts and similar agreements;

(v) secure necessary scientific, technical, administrative, and operational services, including

laboratory facilities, by contract or otherwise;

(vi) encourage voluntary cooperation by persons and affected groups to achieve the purposes

of this chapter;

(vii) encourage local units of government to handle air pollution within their respective

jurisdictions on a cooperative basis and provide technical and consulting assistance to

them;

(viii) determine by means of field studies and sampling the degree of air contamination and air

pollution in all parts of the state;

(ix) monitor the effects of the emission of air pollutants from motor vehicles on the quality of the

outdoor atmosphere in all parts of Utah and take appropriate responsive action;

(x) collect and disseminate information relating to air contamination and air pollution and

conduct educational and training programs relating to air contamination and air pollution;

(xi) assess and collect noncompliance penalties as required in Section 120 of the federal Clean

Air Act, 42 U.S.C. Section 7420;

(xii) comply with the requirements of federal air pollution laws;

(xiii) subject to the provisions of this chapter, enforce rules through the issuance of orders,

including:

(A) prohibiting or abating discharges of wastes affecting ambient air;

(B) 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

(C) adopting other remedial measures to prevent, control, or abate air pollution; and

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(xiv) as authorized by the board and subject to the provisions of this chapter, act as executive

secretary of the board under the direction of the chairman of the board.

(b) The director may:

(i) employ full-time, temporary, part-time, and contract employees necessary to carry out this

chapter;

(ii) subject to the provisions of this chapter, authorize an 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;

(iii) encourage, participate in, or conduct studies, investigations, research, and demonstrations

relating to air pollution and its causes, effects, prevention, abatement, and control, as

advisable and necessary for the discharge of duties assigned under this chapter, including

the establishment of inventories of pollution sources;

(iv) collect and disseminate information relating to air pollution and the prevention, control, and

abatement of it;

(v) cooperate with studies and research relating to air pollution and its control, abatement, and

prevention;

(vi) subject to Subsection (3), upon request, consult concerning the following with a person

proposing to construct, install, or otherwise acquire an air pollutant source in Utah:

(A) the efficacy of proposed air pollution control equipment for the source; or

(B) the air pollution problem that may be related to the source;

(vii) 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;

(viii) subject to Subsection 19-2-104(3)(b)(i), settle or compromise a civil action initiated by the

division to compel compliance with this chapter or the rules made under this chapter; or

(ix) subject to the provisions of this chapter, exercise all incidental powers necessary to carry

out the purposes of this chapter, including certification to state or federal authorities for tax

purposes that air pollution control equipment has been certified in conformity with Title 19,

Chapter 12, Pollution Control Act.

(3) A consultation described in Subsection (2)(b)(vi) does not relieve a person from the

requirements of this chapter, the rules adopted under this chapter, or any other provision of law.

Amended by Chapter 154, 2015 General Session

Superseded 7/1/2015

19-2-107.5 Wood burning.

(1) The division shall create a:

(a) public awareness campaign on the effects of wood burning on air quality, specifically targeting

nonattainment areas; and

(b) program to assist an individual to convert a dwelling to a natural gas or other clean fuel

heating source, as funding allows, if the individual:

(i) lives in a dwelling where a wood burning stove is the sole source of heat; and

(ii) is on the list of registered sole heating source homes.

(2) The division may seek private donations and federal sources of funding to supplement any

funds appropriated by the Legislature to fulfill Subsection (1)(b).

Enacted by Chapter 230, 2014 General Session

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Effective 7/1/2015

19-2-107.5 Solid fuel burning.

(1) The division shall create a:

(a) public awareness campaign, in consultation with representatives of the solid fuel burning

industry, the healthcare industry, and members of the clean air community, on best wood

burning practices and the effects of wood burning on air quality, specifically targeting

nonattainment areas; and

(b) program to assist an individual to convert a dwelling to a natural gas, propane, or wood

pellet heating source or a wood burning stove certified by the United States Environmental

Protection Agency, as funding allows, if the individual:

(i) lives in a dwelling where a wood burning stove is the sole source of heat; and

(ii) is on the list of registered sole heating source homes.

(2)

(a) The division may not impose a burning ban prohibiting burning during a specified seasonal

period of time.

(b) Notwithstanding Subsection (2)(a), the division shall:

(i) allow burning during local emergencies and utility outages; and

(ii) provide for exemptions, through registration with the division, for:

(A) devices that are sole sources of heat; or

(B) locations where natural gas service is limited or unavailable.

(3) The division may seek private donations and federal sources of funding to supplement any

funds appropriated by the Legislature to fulfill Subsection (1)(b).

Amended by Chapter 416, 2015 General Session

19-2-108 Notice of construction or modification of installations required -- Authority

of director to prohibit construction -- Hearings -- Limitations on authority of director --

Inspections authorized.

(1) Notice shall be given to the director by a 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 pollutants discharged, so that

the installation may be expected to be a source or indirect source of air pollution, or by a person

planning to install an air cleaning device or other equipment intended to control emission of air

pollutants.

(2)

(a) The director may require, as a condition precedent to the construction, modification,

installation, or establishment of the air pollutant 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.

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

under this subsection, the director 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 director to adequately review the plans, specifications, or other information,

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he shall issue an order prohibiting the construction, installation, or establishment of the air

pollutant source or sources in whole or in part.

(3) In addition to any other remedies but prior to invoking any such other remedies, a person

aggrieved by the issuance of an order either granting or denying a request for the construction

of a new installation, shall, upon request, in accordance with the rules of the department, be

entitled to a special adjudicative proceeding conducted by an administrative law judge as

provided by Section 19-1-301.5.

(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 director 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) An authorized officer, employee, or representative of the director may enter and inspect

any property, premise, or place on or at which an air pollutant 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 an authorized representative of the director who

requests entry for purposes of inspection and who presents appropriate credentials.

(ii) A person may not obstruct, hamper, or interfere with an 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.

Amended by Chapter 154, 2015 General Session

Amended by Chapter 441, 2015 General Session

19-2-109 Air quality standards -- Hearings on adoption -- Orders of director -- 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 on the Utah Public Notice Website created in Section 63F-1-701, 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 director 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 director 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.

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(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).

Amended by Chapter 360, 2012 General Session

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) "1990 Clean Air Act" means the federal Clean Air Act as amended in 1990.

(b) "EPA" means the federal Environmental Protection Agency.

(c) "Operating permit" means a permit issued by the director to sources of air pollution that meet

the requirements of Titles IV and V of the 1990 Clean Air Act.

(d) "Program" means the air pollution operating permit program established under this section to

comply with Title V of the 1990 Clean Air Act.

(e) "Regulated pollutant" means the same as that term is defined in Title V of the 1990 Clean Air

Act and implementing federal regulations.

(2) A person may not operate a 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 director under

procedures the board establishes by rule.

(3)

(a) Operating permits issued under this section shall be for a period of five years unless the

director 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 director 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 director 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 director 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 director 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.

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(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 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.

(6) If the owner or operator of a source subject to this section fails to timely pay an annual

emissions fee, the director 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.

(7) 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 (7).

(a) The owner or operator shall 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 (7) shall be made after payment of the

emissions fee and within six months after the emissions fee was due.

(8) To reinstate an operating permit revoked under Subsection (6) 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.

(9) 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.

(10) Failure of the director to act on an 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 director to take action on the permit or its renewal without additional

delay:

(a) the applicant;

(b) a person who participated in the public comment process; or

(c) a person who could obtain judicial review of that action under applicable law.

Amended by Chapter 154, 2015 General Session

19-2-109.2 Small business assistance program.

(1) The division 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:

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(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 (3)(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 (3)(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 director, 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 a meeting, and the action of the majority of members

present is the action of the panel.

(10) A member may not receive compensation or benefits for the member's service, but may

receive per diem and travel expenses in accordance with:

(a) Section 63A-3-106;

(b) Section 63A-3-107; and

(c) rules made by the Division of Finance pursuant to Sections 63A-3-106 and 63A-3-107.

Amended by Chapter 154, 2015 General Session

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.

Amended by Chapter 382, 2008 General Session

19-2-110 Violations -- Notice to violator -- Corrective action orders -- Conference,

conciliation, and persuasion by director -- Hearings.

(1) Whenever the director has reason to believe that a violation of any provision of this chapter or

any rule issued under it has occurred, the director 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.

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(2) Nothing in this chapter prevents the director 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.

Amended by Chapter 360, 2012 General Session

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 pollutants.

(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 pollutant

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 or 19-1-301.5, 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.

Amended by Chapter 154, 2015 General Session

19-2-113 Variances -- Judicial review.

(1)

(a) A person who owns or is in control of a 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) A 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

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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 (3)(a) or (b), it may not be granted for more

than one year.

(4)

(a) A 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 pollutant source is situated.

(6)

(a) The board may review a 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 a person or property.

Amended by Chapter 154, 2015 General Session

19-2-114 Activities not in violation of chapter or rules.

 The following are not a violation of this chapter or of a rule 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;

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(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 for the area where the burn is to occur is above 500.

Amended by Chapter 154, 2015 General Session

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 director

that the person is violating the requirement, knowingly violates an order issued under

Subsection 19-2-110(1), 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. Sec.

7412 or any extremely hazardous substance listed under 42 U.S.C. Sec. 11002(a)(2).

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(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, 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 shall 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.

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(b) The department may reimburse itself and local governments from money 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.

Amended by Chapter 360, 2012 General Session

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 director 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, the director may initiate an action for

appropriate injunctive relief:

(i) upon failure of any person to comply with:

(A) any provision of this chapter;

(B) any rule adopted under this chapter; or

(C) any final order made by the board, the director, or the executive director; and

(ii) when it appears necessary for the protection of health and welfare.

(b) The attorney general shall bring injunctive relief actions on request.

(c) A bond is not required.

Amended by Chapter 360, 2012 General Session

19-2-117 Attorney general as legal advisor to board -- Duties of attorney general and county

attorneys.

(1) Except as provided in Section 63G-7-902, the attorney general is the legal advisor to the board

and the director 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 the director, bring an 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 director issued under this chapter.

(3) The director may bring an action and be represented by the attorney general.

(4) In the event a person fails to comply with a cease and desist order of the board or the director

that is not subject to a stay pending administrative or judicial review, the director may initiate an

action for, and is entitled to, injunctive relief to prevent any further or continued violation of the

order.

Amended by Chapter 154, 2015 General Session

19-2-118 Violation of injunction evidence of contempt.

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 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.

Renumbered and Amended by Chapter 112, 1991 General Session

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 a wrongful action that is a violation of the law are not

excluded by this chapter.

(2) Except as provided in Sections 19-1-301 and 19-1-301.5, and rules implementing those

provisions, 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 a violation caused by an

act of God, war, strike, riot, or other catastrophe.

Amended by Chapter 154, 2015 General Session

19-2-120 Information required of owners or operators of air pollutant sources.

 The owner or operator of a stationary air pollutant source in the state shall furnish to the director

the reports required by rules made in accordance with Section 19-2-104 and any other information

the director 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 division.

Amended by Chapter 154, 2015 General Session

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.

Renumbered and Amended by Chapter 112, 1991 General Session

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

(1) A 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 the agency's powers and duties; and

(c) fix the compensation of the agency's members and employees.

Amended by Chapter 154, 2015 General Session

Part 2

Clean Air Retrofit, Replacement, and Off-road Technology Program

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19-2-201 Title.

 This part is known as the "Clean Air Retrofit, Replacement, and Off-road Technology Program."

Enacted by Chapter 295, 2014 General Session

19-2-202 Definitions.

 As used in this part:

(1) "Board" means the Air Quality Board.

(2) "Certified" means certified by the United States Environmental Protection Agency or the

California Air Resources Board to meet appropriate emission standards.

(3) "Cost" means the total reasonable cost of a project eligible for a grant under the fund, including

the cost of labor.

(4) "Director" means the director of the Division of Air Quality.

(5) "Division" means the Division of Air Quality, created in Subsection 19-1-105(1)(a).

(6) "Eligible equipment" means equipment with engines, including stationary generators and

pumps, operated and, if applicable, permitted in Utah.

(7) "Eligible vehicle" means a vehicle operated and, if applicable, registered in Utah that is:

(a) a medium-duty or heavy-duty transit bus;

(b) a school bus as defined in Subsection 53-3-102(33);

(c) a medium-duty or heavy-duty truck with a gross vehicle weight rating of at least 16,001

GVWR;

(d) a locomotive; or

(e) another type of vehicle identified by the board in rule as being a significant potential source of

air pollution, as defined in Subsection 19-2-102(3).

(8) "Verified" means verified by the United States Environmental Protection Agency or the

California Air Resources Board to reduce air emissions and meet durability requirements.

Enacted by Chapter 295, 2014 General Session

19-2-203 Grants and programs -- Conditions.

(1) The director may make grants for implementing:

(a) verified technologies for eligible vehicles or equipment; and

(b) certified vehicles, engines, or equipment.

(2)

(a) The division may develop programs, including exchange, rebate, or low-cost purchase

programs, to encourage replacement of:

(i) landscaping and maintenance equipment with equipment that is lower in emissions; and

(ii) other equipment or products identified by the board in rule as being a significant potential

source of air pollution, as defined in Subsection 19-2-102(3).

(b) The division may enter into agreements with local health departments to administer the

programs described in Subsection (2)(a).

(3) As a condition for receiving the grant, a person receiving a grant under Subsection (1) or

receiving a grant under this Subsection (3) shall agree to:

(a) provide information to the division about the vehicles, equipment, or technology acquired with

the grant proceeds;

(b) allow inspections by the division to ensure compliance with the terms of the grant;

(c) permanently disable replaced vehicles, engines, and equipment from use; and

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(d) comply with the conditions for the grant.

(4) Grants and programs under Subsections (1) and (2) may be administered using a rebate

program.

(5) Grants issued under this section may not exceed the actual cost of the project.

Enacted by Chapter 295, 2014 General Session

19-2-204 Duties and authorities -- Rulemaking.

(1) The board may, by following the procedures and requirements of Title 63G, Chapter 3, Utah

Administrative Rulemaking Act, make rules:

(a) specifying the amount of money to be dedicated annually for grants;

(b) specifying criteria the director shall consider in prioritizing and awarding grants, including:

(i) a preference for awarding a grant to an individual who has already secured some other

source of funding; and

(ii) a limitation on the types of vehicles that are eligible for funds;

(c) specifying the terms of a grant or exchange under Subsections 19-2-203(2), (3), and (4);

(d) specifying the procedures to be used in the grant and exchange programs authorized in

Subsections 19-2-203(2), (3), and (5); and

(e) requiring all grant applicants to apply on forms provided by the division.

(2) The division shall:

(a) administer funds to encourage vehicle and equipment owners and operators to reduce

emissions from vehicles and equipment;

(b) provide forms for application for a grant or exchange under Subsection 19-2-203(2) or (3);

and

(c) provide information about which vehicles, engines, or equipment are certified and which

technology is verified as provided in this part.

(3) The division may inspect vehicles, equipment, or technology for which a grant was made to

ensure compliance with the terms of the grant.

Enacted by Chapter 295, 2014 General Session

Part 3

Conversion to Alternative Fuel Grant Program

19-2-301 Title.

 This part is known as the "Conversion to Alternative Fuel Grant Program."

Enacted by Chapter 381, 2015 General Session

19-2-302 Definitions.

 As used in this part:

(1) "Air quality standards" means vehicle emission standards equal to or greater than the

standards established in bin 4 in Table S04-1 of 40 C.F.R. 86.1811-04(c)(6).

(2) "Alternative fuel" means:

(a) propane, natural gas, or electricity; or

(b) other fuel that the board determines, by rule, to be:

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(i) at least as effective in reducing air pollution as the fuels listed in Subsection (2)(a); or

(ii) substantially more effective in reducing air pollution as the fuel for which the engine was

originally designed.

(3) "Board" means the Air Quality Board.

(4) "Clean fuel grant" means a grant awarded under Title 19, Chapter 1, Part 4, Clean Fuels and

Vehicle Technology Program Act, for reimbursement for a portion of the incremental cost of an

OEM vehicle or the cost of conversion equipment.

(5) "Conversion equipment" means equipment designed to:

(a) allow an eligible vehicle to operate on an alternative fuel; and

(b) reduce an eligible vehicle's emissions of regulated pollutants, as demonstrated by:

(i) certification of the conversion equipment by the Environmental Protection Agency or by a

state or country that has certification standards that are recognized, by rule, by the board;

(ii) testing the eligible vehicle, before and after the installation of the equipment, in accordance

with 40 C.F.R. Part 86, Control of Emissions from New and In-Use Highway Vehicles and

Engines, using all fuel the motor vehicle is capable of using;

(iii) for a retrofit natural gas vehicle that is retrofit in accordance with Section 19-1-406,

satisfying the emission standards described in Section 19-1-406; or

(iv) any other test or standard recognized by board rule, made in accordance with Title 63G,

Chapter 3, Utah Administrative Rulemaking Act.

(6) "Cost" means the total reasonable cost of a conversion kit and the paid labor, if any, required to

install it.

(7) "Director" means the director of the Division of Air Quality.

(8) "Division" means the Division of Air Quality, created in Subsection 19-1-105(1)(a).

(9) "Eligible vehicle" means a:

(a) commercial vehicle, as defined in Section 41-1a-102;

(b) farm tractor, as defined in Section 41-1a-102; or

(c) motor vehicle, as defined in Section 41-1a-102.

Enacted by Chapter 381, 2015 General Session

19-2-303 Grants and programs -- Conditions.

(1) The director may make grants to a person who installs conversion equipment on an eligible

vehicle as described in this part.

(2) A person who installs conversion equipment on an eligible vehicle:

(a) may apply to the division for a grant to offset the cost of installation; and

(b) shall pass along any savings on the cost of conversion equipment to the owner of the eligible

vehicle being converted in the amount of grant money received.

(3) As a condition for receiving the grant, a person who installs conversion equipment shall agree

to:

(a) provide information to the division about the eligible vehicle to be converted with the grant

proceeds;

(b) allow inspections by the division to ensure compliance with the terms of the grant; and

(c) comply with the conditions for the grant.

(4) A grant issued under this section may not exceed the lesser of 50% of the cost of the

conversion system and associated labor, or $2,500, per converted eligible vehicle.

Enacted by Chapter 381, 2015 General Session

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19-2-304 Duties and authorities -- Rulemaking.

(1) The board may, by following the procedures and requirements of Title 63G, Chapter 3, Utah

Administrative Rulemaking Act, make rules:

(a) specifying the amount of money to be dedicated annually for grants under this part;

(b) specifying criteria the director shall consider in prioritizing and awarding grants, including a

limitation on the types of vehicles that are eligible for funds;

(c) specifying the minimum qualifications of a person who:

(i) installs conversion equipment on an eligible vehicle; and

(ii) receives a grant from the division;

(d) specifying the terms of a grant; and

(e) requiring all grant applicants to apply on forms provided by the division.

(2) The division shall:

(a) administer funds to encourage eligible vehicle owners to reduce emissions from eligible

vehicles; and

(b) provide information about which conversion technology meets the requirements of this part.

(3) The division may inspect vehicles for which a grant was made to ensure compliance with the

terms of the grant.

Enacted by Chapter 381, 2015 General Session

19-2-305 Limitation on applying for a tax credit.

 An owner of an eligible vehicle who receives the savings on the cost of conversion equipment,

as described in Subsection 19-2-303(2)(b), may not claim a tax credit for the conversion under

Section 59-7-605 or 59-10-1009 unless the savings are less than the tax credit authorized by those

sections, in which case the owner may claim a tax credit in the amount of the difference.

Enacted by Chapter 381, 2015 General Session

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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, 2008 General Session

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.

(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.

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(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

63G-3-201(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, 2008 General Session

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;

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(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;

(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, 2009 General Session

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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, 2008 General Session

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 63G-3-304, 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

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(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;

(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.

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(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, 2009 General Session

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, 10 interested persons, or an interested association having not fewer

than 10 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, 2008 General Session

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

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(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.

Renumbered and Amended by Chapter 382, 2008 General Session

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, 2008 General Session

Renumbered and Amended by Chapter 382, 2008 General Session

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 after the rule's original effective date

or within five years after the filing of the last five-year review, whichever is later.

(2) An agency may consider any substantial review of a rule to be a five-year review if the agency

also meets the requirements described in Subsection (3).

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(3) At the conclusion of its review, and no later than the deadline described in Subsection (1), the

agency shall decide whether to continue, repeal, or amend and continue the rule and comply

with Subsections (3)(a) through (c), as applicable.

(a) If the agency continues the rule, the agency shall file with the division a five-year notice of

review and statement of continuation that 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, the agency shall:

(i) comply with Section 63G-3-301; and

(ii) in the rule analysis described in Section 63G-3-301, state that the repeal is the result of the

agency's five-year review under this section.

(c) If the agency amends and continues the rule, the agency shall comply with the requirements

described in Section 63G-3-301 and file with the division the five-year notice of review and

statement of continuation required in Subsection (3)(a).

(4) The division shall publish a five-year notice of review and statement of continuation in the

bulletin no later than one year after the deadline described in Subsection (1).

(5)

(a) The division shall make a reasonable effort to notify an agency that a rule is due for review at

least 180 days before the deadline described in Subsection (1).

(b) The division's failure to comply with the requirement described in Subsection (5)(a) does not

exempt an agency from complying with any provision of this section.

(6) If an agency finds that it will not meet the deadline established in Subsection (1):

(a) before the deadline described in Subsection (1), the agency may file one extension with the

division indicating the reason for the extension; and

(b) the division shall publish notice of the extension in the bulletin in accordance with the

division's publication schedule established by division rule under Section 63G-3-402.

(7) An extension permits the agency to comply with the requirements described in Subsections (1)

and (3) up to 120 days after the deadline described in Subsection (1).

(8)

(a) If an agency does not comply with the requirements described in Subsection (3), and

does not file an extension under Subsection (6), the rule expires automatically on the day

immediately after the date of the missed deadline.

(b) If an agency files an extension under Subsection (6) and does not comply with the

requirements described in Subsection (3) within 120 days after the day on which the deadline

described in Subsection (1) expires, the rule expires automatically on the day immediately

after the date of the missed deadline.

(9) After a rule expires under Subsection (8), 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.

(10) After a rule expires, an agency must comply with the requirements of Section 63G-3-301 to

reenact the rule.

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Amended by Chapter 57, 2014 General Session

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.

(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, 2008 General Session

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;

(m) if the Department of Administrative Services operates the division as an internal service fund

agency in accordance with Section 63A-1-109.5, submit to the Rate Committee established in

Section 63A-1-114:

(i) the proposed rate and fee schedule as required by Section 63A-1-114; and

(ii) other information or analysis requested by the Rate Committee; and

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(n) 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.

Amended by Chapter 341, 2010 General Session

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;

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(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;

(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, 2008 General Session

Renumbered and Amended by Chapter 382, 2008 General Session

Part 5

Legislative Oversight

63G-3-501 Administrative Rules Review Committee.

(1)

(a) There is created an Administrative Rules Review Committee of the following 10 permanent

members:

(i) five members of the Senate appointed by the president of the Senate, no more than three of

whom may be from the same political party; and

(ii) five members of the House of Representatives appointed by the speaker of the House of

Representatives, no more than three of whom may be from the same political party.

(b) Each permanent member shall serve:

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(i) for a two-year term; or

(ii) until the permanent member's successor is appointed.

(c)

(i) A vacancy exists when a permanent member ceases to be a member of the Legislature, or

when a permanent member resigns from the committee.

(ii) When a vacancy exists:

(A) if the departing member is a member of the Senate, the president of the Senate shall

appoint a member of the Senate to fill the vacancy; or

(B) if the departing member is a member of the House of Representatives, the speaker of the

House of Representatives shall appoint a member of the House of Representatives to fill

the vacancy.

(iii) The newly appointed member shall serve the remainder of the departing member's

unexpired term.

(d)

(i) The president of the Senate shall designate a member of the Senate appointed under

Subsection (1)(a)(i) as a cochair of the committee.

(ii) The speaker of the House of Representatives shall designate a member of the House of

Representatives appointed under Subsection (1)(a)(ii) as a cochair of the committee.

(e) Three representatives and three senators from the permanent members are a quorum for the

transaction of business at any meeting.

(f)

(i) Subject to Subsection (1)(f)(ii), the committee shall meet at least once each month to review

new agency rules, amendments to existing agency rules, and repeals of existing agency

rules.

(ii) The committee chairs may suspend the meeting requirement described in Subsection (1)(f)

(i) at the committee chairs' discretion.

(2) The division shall submit a copy of each issue of the bulletin to the committee.

(3)

(a) The committee shall exercise continuous oversight of the rulemaking process.

(b) The committee shall examine each rule submitted by an agency to determine:

(i) whether the rule is authorized by statute;

(ii) whether the rule complies with legislative intent;

(iii) the rule's impact on the economy and the government operations of the state and local

political subdivisions; and

(iv) the rule's impact on affected persons.

(c) To carry out these duties, the committee may examine any other issues that the committee

considers necessary. The committee may also notify and refer rules to the chairs of

the interim committee that 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 a rule, the committee shall follow generally accepted principles of statutory

construction.

(4) When the committee reviews existing rules, the committee chairs shall invite the Senate

and House chairs of the standing committee and 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.

(5) The committee may request that the Office of the Legislative Fiscal Analyst prepare a fiscal

note on any rule.

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(6) In order to accomplish the committee's functions described in this chapter, the committee has

all the powers granted to legislative interim committees under Section 36-12-11.

(7)

(a) The committee may prepare written findings of the committee's review of a rule and may

include any recommendations, including legislative action.

(b) When the committee reviews a rule, the committee shall provide to the agency that enacted

the rule:

(i) the committee's findings, if any; and

(ii) a request that the agency notify the committee of any changes the agency makes to the

rule.

(c) The committee shall provide a copy of the committee's findings, if any, to:

(i) any member of the Legislature, upon request;

(ii) any person affected by the rule, upon request;

(iii) the president of the Senate;

(iv) the speaker of the House of Representatives;

(v) the Senate and House chairs of the standing committee that has jurisdiction over the agency

that made the rule; and

(vi) the Senate and House chairs of the appropriation subcommittee that has jurisdiction over

the agency that made the rule.

(8)

(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) any findings and recommendations the committee made under Subsection (7);

(ii) any action an agency took in response to committee recommendations; and

(iii) any recommendations by the committee for legislation.

Amended by Chapter 383, 2015 General Session

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.

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(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, 2008 General Session

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)

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(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, 2008 General Session

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.

(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.

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(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, 2008 General Session

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, 2008 General Session

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, 2008 General Session

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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

(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, 2008 General Session

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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;

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 (ii) mailing copies of 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 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 

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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 21, 2010

Authorizing, and Implemented or Interpreted Law: 63G-3-402

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R15. Administrative Services, Administrative Rules.

R15-2. Public Petitioning for Rulemaking.

R15-2-1. Authority.

 As required by Subsection 63G-3-601(3), 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 record the date 

it received the petition.

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 rule, including 

relevant affiliation, if any;

 (d) include a statement as required by Subsection 63G-3-601(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 63G-3-601.

 (2) The petitioned agency may, within the time frame provided 

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by Section 63G-3-601, 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, open government, transparency

December 25, 2006 63G-3-601

Notice of Continuation September 21, 2010

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R15. Administrative Services, Administrative Rules.

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 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 63G-3-402(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 

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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

April 30, 2007 63G-3-201

Notice of Continuation September 21, 2010 63G-3-301

63G-3-402

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R15. Administrative Services, Administrative Rules.

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 63G-3-304, 

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 63G-3-305(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 

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.

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 (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 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 

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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 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 

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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 63G-3-303(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.

 (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 

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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.

 (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), 63G-3-303(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 

C-53
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, or the 

obtaining thereof would impose a substantial unbudgeted hardship on 

the agency, the agency may substitute a reasoned narrative description 

of cost-related 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

August 24, 2007 63G-3-301

Notice of Continuation September 21, 2010 63G-3-303

63G-3-304

63G-3-402

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C-55
R15. Administrative Services, Administrative Rules.

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-4-202, 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 

63G-3-402(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 

C-56
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 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 re-filing 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

June 1, 1996 63G-3-402

Notice of Continuation September 22, 2010 63G-4-202

63G-4-203

63G-4-503

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R307. Environmental Quality, Air Quality.

R307-110. General Requirements: State Implementation Plan.

R307-110-28. Regional Haze.

The Utah State Implementation Plan, Section XX, Regional Haze, 

as most recently amended by the Utah Air Quality Board on [June 3, 

2015,]September xx, 2015, pursuant to Section 19-2-104, is hereby 

incorporated by reference and made a part of these rules.

KEY: air pollution, PM10, PM2.5, ozone

Date of Enactment or Last Substantive Amendment: [June 4,] 2015

Notice of Continuation: February 1, 2012

Authorizing, and Implemented or Interpreted Law: 19-2-104(3)(e)

P-1
N. ENFORCEABLE COMMITMENTS FOR THE UTAH REGIONAL HAZE SIP.

Utah has found that, in order to ensure that certain emissions reductions are not double counted 

and that the Regional Haze SIP is enforceable as a practical matter, circumstances warrant

creation of an enforceable commitment SIP. The intent of this section is to meet sections 110, 

169A, and 169B of the Clean Air Act, and to ensure that the EPA can approve the Regional Haze 

SIP. EPA applies three factors when determining whether to approve an enforceable 

commitment: (1) whether the commitment addresses a limited portion of the statutorily-required 

program; (2) whether the state is capable of fulfilling its commitment; and (3) whether the 

commitment is for a reasonable and appropriate period of time. Once approved as part of this 

SIP, these commitments are enforceable by both EPA and citizens under the Clean Air Act. Utah 

therefore commits to the following:

1. In Section D.6.c of this plan, Carbon Units 1 and 2 will be shut down. This enforceable 

shutdown will result in SO2 reductions of 3,388 tons/year from Unit 1 and 4,617 tons per 

year from Unit 2, resulting in a total of 8,005 tons per year. The resulting combined 

annual emissions of NOx, SO2, and PM will be 2,876 tons lower than the alternative 

Better than BART controls. Simultaneously, as part of the annual milestone reports 

required by the Utah SIP and Section 309 of the Federal Regional Haze Rule (40 CFR 

Part 51), Utah tracks SO2 emissions from applicable stationary sources and compares 

those to milestones set in the initial Utah 309 plan. If the 8,005 tons/year were removed 

in subsequent milestone reports, the State would be counting the reductions obtained 

from closure of the Carbon units twice. The State commits to resolving this double 

counting issue by revising the Utah 309 plan to specifically state that the 8,005 tons of 

SO2 emissions from the Carbon units will be added into the annual milestone reports 

from 2016 through the life of the backstop trading program, thereby removing any credit 

for that emissions reduction in meeting the levels specified in the Utah 309 plan. 

2. This SIP is limited to addressing the SO2 emissions from the Carbon units only. These 

emissions are a small part of the overall 42,016 tons of emissions reductions from SO2

and NOx. Thus, the amount of the reduction is limited to 8,005 tons. 

3. 40 CFR 51.309 sets forth emissions inventory requirements for tracking compliance with 

the SO2 milestones. SIP Section XX.D.3.c and Rule 307-150 specify the mechanism used 

to implement this tracking requirement in Utah, and require all stationary sources with 

actual emissions of 100 tons per year or more of SO2 in the year 2000 or in any 

subsequent year to submit an annual inventory of SO2 emissions, beginning with the 2003 

emission inventory. A source that meets these criteria and then emits less than 100 tons 

per year in a later year must continue to submit an SO2 inventory for tracking compliance 

P-2
with the regional SO2 milestones until 2018. As necessary, SIP Section XX.D.3.c and 

R307-150 will be revised to supplement Utah’s inventory requirements and to satisfy the 

needs of this Commitment SIP. Other applicable provisions that may be identified in the 

future will be amended as well. 

4. Utah will resolve the double-counting issue by including the 8,005 tons of SO2 emissions 

from the Carbon Power Plants in each required annual Section 309 Milestone Report 

from 2016 through the life of the backstop trading program. All required amendments to 

this SIP will be done through the State’s SIP adoption process. The SIP is adopted by the 

Governor-appointed Air Quality Board through a rulemaking process that includes public 

comment periods and an opportunity for a public hearing. 

5. Utah will submit an approvable SIP revision to EPA, along with any supporting 

document(s) by March 2018 to allow EPA to take final action before the end of the 

milestone commitment. Additionally, Utah will include the 8,005 tons/year of SO2

emissions reported by the Carbon units in the annual report of SO2 emissions used to 

trigger the backstop trading program. 

6. Utah will work with EPA and take appropriate action to resolve any completeness or 

approvability issues that arise regarding the proposed SIP revision by March 2018. 

P-3
DAR File No. 39519 NOTICES OF PROPOSED RULES

(b) a maximum of 10 hours per two year period may be 

recognized for teaching in a college or university, teaching qualified 

continuing education courses in the field of clinical mental health 

counseling, or [supervision]supervising of an individual completing 

[his]the experience requirement for licensure in a mental health 

therapist license classification; and

(c) a maximum of 10 hours per two year period may be 

recognized for distance learning, clinical readings, or internet-based 

courses directly related to practice as a clinical mental health 

counselor [unless]or as otherwise approved by the Division.

(6) A licensee shall be responsible for maintaining 

competent records of completed continuing education for [a period

of]at least four years after close of the two year period to which the 

records pertain. It is the responsibility of the licensee to maintain 

such information with respect to continuing education to 

demonstrate it meets the requirements under this section.

(7) A licensee who documents [he is]having engaged in 

full-time activities or is subjected to circumstances [which]that

prevent [that]the licensee from meeting the continuing education 

requirements established under this Section may be excused from 

the requirement for a period of up to three years. However, it is the 

responsibility of the licensee to document the reasons and justify 

why the requirement could not be met.

 (8) If a licensee completes more than the required number

of continuing education hours during a two-year renewal cycle

specified in Subsection (2), up to ten hours of the excess may be

carried over to the next two-year renewal cycle.

 (9) No education received prior to licensure in Utah may

be used towards the continuing education requirements of

Subsection (2).

KEY: licensing, counselors, mental health, clinical mental 

health counselor

Date of Enactment or Last Substantive Amendment: 

[November 13, 2012]2015

Notice of Continuation: December 9, 2014

Authorizing, and Implemented or Interpreted Law: 58-60-401; 

58-1-106(1)(a); 58-1-202(1)(a)

Environmental Quality, Air Quality

R307-110-28

Regional Haze

NOTICE OF PROPOSED RULE

(Amendment)

DAR FILE NO.: 39554

FILED: 07/30/2015

RULE ANALYSIS

PURPOSE OF THE RULE OR REASON FOR THE 

CHANGE: On 06/03/2015, the Air Quality Board adopted 

revisions to Utah's state implementation plan (SIP) Section 

XX, Regional Haze. As of 07/22/2015, the SIP is pending 

approval from the EPA. Utah's Division of Air Quality 

recognizes that, historically, the EPA can more easily approve

a SIP submission that contains a section known as an 

enforceable commitment. The enforceable commitment will 

ensure that emissions reductions from the closure of the 

Carbon Power Plant are not double counted and that the 

Regional Haze SIP is enforceable as a practical matter. The 

purpose of this rule is to incorporate the enforceable 

commitment section of the SIP by reference into Utah's Air 

Quality Rules. A public review and comment period for the 

enforceable commitment and the proposed amendments to 

Section R307-110-28 will run simultaneously. The 

enforceable commitment is available for public review at 

http://www.deq.utah.gov/NewsNotices/notices/air/Pubrule.htm

SUMMARY OF THE RULE OR CHANGE: The rule is 

changed to incorporate the enforceable commitment found in 

Section XX.N of the Regional Haze SIP on the date it is 

adopted by the Air Quality Board. The SIP is amended to 

include an enforceable commitment that ensures emissions 

reductions from the closure of the Carbon Power Plant are 

not double counted and that the SIP is enforceable as a 

practical matter.

STATUTORY OR CONSTITUTIONAL AUTHORIZATION FOR 

THIS RULE: Subsection 19-2-104

MATERIALS INCORPORATED BY REFERENCES:

♦ Updates Utah State Implementation Plan, Section 

XX, Regional Haze, published by Utah Division of Air 

Quality, 09/21/2015

ANTICIPATED COST OR SAVINGS TO:

♦ THE STATE BUDGET: There are no changes in the SIP or 

the rule that will affect the state of Utah. Therefore, there are 

no anticipated costs or savings to the state budget.

♦ LOCAL GOVERNMENTS: There are no changes to the SIP 

or the rule that affect local governments. Therefore, there are 

no anticipated costs or savings.

♦ SMALL BUSINESSES: The enforceable commitment 

section ensures that the alternative to the Best Available 

Retrofit Technology (BART) for PacifiCorp is enforceable and 

that emissions are not double counted. PacifiCorp employs 

more than 50 people. Therefore, there are no anticipated 

costs or savings to small businesses.

♦ PERSONS OTHER THAN SMALL BUSINESSES, 

BUSINESSES, OR LOCAL GOVERNMENTAL ENTITIES: 

The enforceable commitment section of the Regional Haze 

SIP merely clarifies that the SIP, as previously approved, will 

be enforced and implemented without double counting the 

emissions from the Carbon units that are being shut down. 

Therefore, no other persons will be affected.

COMPLIANCE COSTS FOR AFFECTED PERSONS: The 

enforceable commitment section of the Regional Haze SIP 

merely clarifies that the SIP, as previously approved, will be 

enforced and implemented without double counting the 

emissions from the Carbon units that are being shut down. 

Therefore, there are no additional compliance costs resulting 

from the rule or the amended SIP.

UTAH STATE BULLETIN, August 15, 2015, Vol. 2015, No. 16 13

H-1
NOTICES OF PROPOSED RULES DAR File No. 39554

COMMENTS BY THE DEPARTMENT HEAD ON THE 

FISCAL IMPACT THE RULE MAY HAVE ON BUSINESSES: 

The enforceable commitment section of the Regional Haze 

SIP merely clarifies that the SIP, as previously approved, will 

be enforced and implemented without double counting the 

emissions from the Carbon units that are being shut down. 

Therefore, the revisions to both the rule and the SIP will not 

result in additional fiscal impacts on businesses.

THE FULL TEXT OF THIS RULE MAY BE INSPECTED, 

DURING REGULAR BUSINESS HOURS, AT:

ENVIRONMENTAL QUALITY

AIR QUALITY

FOURTH FLOOR 

195 N 1950 W

SALT LAKE CITY, UT 84116-3085

or at the Division of Administrative Rules.

DIRECT QUESTIONS REGARDING THIS RULE TO:

♦ Ryan Stephens by phone at 801-536-4419, by FAX at 801-

536-0085, or by Internet E-mail at rstephens@utah.gov

INTERESTED PERSONS MAY PRESENT THEIR VIEWS ON 

THIS RULE BY SUBMITTING WRITTEN COMMENTS NO 

LATER THAN AT 5:00 PM ON 09/14/2015

THIS RULE MAY BECOME EFFECTIVE ON: 09/21/2015

AUTHORIZED BY: Bryce Bird, Director

R307. Environmental Quality, Air Quality.

R307-110. General Requirements: State Implementation Plan.

R307-110-28. Regional Haze.

The Utah State Implementation Plan, Section XX, Regional 

Haze, as most recently amended by the Utah Air Quality Board on 

[June 3, 2015,]September xx, 2015, pursuant to Section 19-2-104, is 

hereby incorporated by reference and made a part of these rules.

KEY: air pollution, PM10, PM2.5, ozone

Date of Enactment or Last Substantive Amendment: [June 4, ]

2015

Notice of Continuation: February 1, 2012

Authorizing, and Implemented or Interpreted Law: 19-2-104(3)

(e)

Health, Health Care Financing, 

Coverage and Reimbursement Policy

R414-7C

Alternative Remedies for Nursing 

Facilities

NOTICE OF PROPOSED RULE

(Repeal)

DAR FILE NO.: 39543

FILED: 07/27/2015

RULE ANALYSIS

PURPOSE OF THE RULE OR REASON FOR THE 

CHANGE: This rule repeal is necessary because the rule 

should reside with the Division of Family Health and 

Preparedness (DFHP). DFHP will file a new rule to keep 

provisions ongoing and effective.

SUMMARY OF THE RULE OR CHANGE: This rule is 

repealed in its entirety.

STATUTORY OR CONSTITUTIONAL AUTHORIZATION FOR 

THIS RULE: Section 26-1-5 and Section 26-18-3

ANTICIPATED COST OR SAVINGS TO:

♦ THE STATE BUDGET: This rule repeal does not affect the 

state budget because a new rule will continue to implement 

current provisions.

♦ LOCAL GOVERNMENTS: This rule repeal does not affect 

local governments because a new rule will continue to 

implement current provisions.

♦ SMALL BUSINESSES: This rule repeal does not affect 

small businesses because a new rule will continue to 

implement current provisions.

♦ PERSONS OTHER THAN SMALL BUSINESSES, 

BUSINESSES, OR LOCAL GOVERNMENTAL ENTITIES: 

This rule repeal does not affect Medicaid providers and 

Medicaid recipients because a new rule will continue to 

implement current provisions.

COMPLIANCE COSTS FOR AFFECTED PERSONS: This 

rule repeal does not affect a single Medicaid provider or a 

Medicaid recipient because a new rule will continue to 

implement current provisions.

COMMENTS BY THE DEPARTMENT HEAD ON THE 

FISCAL IMPACT THE RULE MAY HAVE ON BUSINESSES: 

There is no fiscal impact to business because no requirement 

has been added or deleted pursuant to this rule renumbering.

THE FULL TEXT OF THIS RULE MAY BE INSPECTED, 

DURING REGULAR BUSINESS HOURS, AT:

HEALTH

HEALTH CARE FINANCING,

COVERAGE AND REIMBURSEMENT POLICY

CANNON HEALTH BLDG

288 N 1460 W

SALT LAKE CITY, UT 84116-3231

or at the Division of Administrative Rules.

DIRECT QUESTIONS REGARDING THIS RULE TO:

♦ Craig Devashrayee by phone at 801-538-6641, by FAX at 

801-538-6099, or by Internet E-mail at cdevashrayee@utah. 

gov

14 UTAH STATE BULLETIN, August 15, 2015, Vol. 2015, No. 16

H-2
TO: Air Quality Board

THROUGH: Bryce C. Bird, Executive Secretary

FROM: Ryan Stephens, Rules Coordinator 

DATE: September 18, 2015 

SUBJECT: FINAL ADOPTION: Amend R307-110-28. Regional Haze. 

On July 27, 2015, the Board proposed amendments to R307-110-28 to incorporate by 

reference the newest version of the State Implementation Plan (SIP) for Regional Haze. A 

30-day public comment period was held from August 15 to September 14, 2015. No 

comments were submitted regarding incorporating the SIP into the rules and no public 

hearing was requested.

Staff Recommendation: Staff recommends that the Board adopt the amendments to

R307-110-28. 

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1 

Response to Comments

1. [EPA] Paragraph N .1: There appears to be a typographical error in the third 

sentence which should read, "The resulting combined annual emissions of NOx, S02 

and PM will be 2,876 tons lower than the most stringent BART controls." 

Response: The error is corrected in the version proposed for adoption.

2. [EPA] Paragraph N.2: Please explain in more detail how these commitments address 

limited portions in each of the required SIP programs, including a basis for 

characterizing the amounts as limited. Additionally, please explain the derivation of 

any emissions figures referenced. For example, it is unclear how the figure of 42,016 

tons of S02 and NOx emissions reductions was derived.

Response: Emissions reductions in the Alternative to BART SIP include SO2 and NOx 

reductions from the Hunter, Huntington, and Carbon Units. The total reduction in SO2 

and NOx is 42,016 tons. These commitments only address the 8,005 tons of SO2 from the 

Carbon Units. The Regional Haze SO2 milestone for 2018 is 141,849 tons. As reported in 

the 2013 Regional SO2 Emissions and Milestone Report, the average adjusted SO2 

emissions for 2011, 2012, and 2013 are 105,402 tons. Without counting the reductions 

from the Carbon facility, the region is already well below the 2018 milestone.

3. [HEAL Utah, National Parks Conservation Association, Sierra Club, Powder River Basin 

Resource Council, and San Juan Citizens Alliance (hereinafter Conservation 

Organizations)] The Enforceable Commitment erroneously assumes that the RH SIP 

will effectuate SO2 reductions at the Carbon plant. Utah’s proposed SIP incorrectly 

states, “In Section D.6.c of this plan, Carbon Units 1 and 2 will be shut down.”2 This 

statement erroneously conveys that the Carbon Units are still operating and Utah’s 

regional haze SIP will mandate closure of the plant. This statement is factually 

incorrect because the Carbon Units ceased operation as of April 15, 2015 and are 

currently being dismantled. PacifiCorp, the owner of the Carbon Units, decided 

years ago to retire these units rather than retrofit the plant to comply with the 

mercury and air toxics (MATS) rule. Thus, the Carbon unit retirements have already 

occurred and were never a component of Utah’s regional haze SIP until after the 

units ceased operation.

Response: Section D.6.c of the Regional Haze SIP created an enforceable requirement 

for the shutdown of the Carbon Units. While the federal Mercury and Air Toxics (MATS) 

Rule may have created an additional incentive to retire the plant, it did not specifically 

require it, and the Supreme Court stay on the rule could have allowed the plant to 

continue operation until the final MATS Rule is in place. Including the Carbon Plants in 

the Regional Haze SIP ensured that the retirement plans would be permanent and 

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2 

enforceable, regardless of legal status of the MATS Rule. The language in the 

Enforceable Commitments has been changed to reflect that the Carbon Units are no 

longer operating.

4. [Conservation Organizations] UDAQ is impermissibly attempting to fit a square peg in 

a round hole. Utah’s proposed Enforceable Commitment (EC) SIP states that its 

purpose is to “ensure[s] that SO2 emissions reductions from the Carbon power plant 

closure are not double counted in the Regional Haze SIP.” However, the EC SIP fails 

to address the fundamental issue of whether the SO2 emissions from the Carbon 

units should be counted at all in its NOx/PM regional haze SIP.

Response: It is not the purpose of the Enforceable Commitments to address whether the 

SO2 emissions from the Carbon units should be counted in the regional haze SIP. As 

stated, the only purpose is to resolve the issue of double counting the Carbon emissions.

5. [Conservation Organizations] UDAQ’s proposed post-hoc amendment of its SO2 RH 

SIP would undermine the legal justification for EPA’s approval of that SIP. Utah 

proposes to amend its SO2 RH SIP by somehow extracting the previously relied upon 

Carbon plant SO2 reductions and apply these reductions to its NOx/PM BART SIP for 

Hunter and Huntington. But Utah’s proposal would effectively undermine EPA’s legal 

justification for approving the Section 309 alternative program. Having touted the 

309 Program’s ability to garner SO2 emission reductions from “smaller, non-BART 

sources” such as the Carbon Plant, Utah may not now extract such sources from the 

program without nullifying its previous “better than BART” determination and the 

legal underpinnings for the 309 Program approval.

Further, if Utah’s proposed omission of the Carbon Plant from the 309 Program were 

permissible, there would be nothing to stop Utah and the other states participating 

in the Program from removing other “smaller, non-BART sources” from the Program. 

The result would strip the 309 Program of its justification under the Regional Haze 

regulations. Such maneuverings would also undermine the essence of the regional 

haze program to compel reasonable progress towards clear skies and place 

achievement of the natural conditions goal out of reach.

Response: The 309 Program did not rely on reductions from the Carbon Plant and the 

Hunter 3 Unit as stated in staff’s response to comments and the Staff Review for the 

recently submitted SIP. In fact, that same response states that “emission reductions 

from the Carbon Plant and Hunter 3 were not necessary for other states to meet their 

reasonable progress goals and therefore provide an added benefit.” Removing sources 

that were relied upon from the Program is not allowed. This Enforceable Commitment is 

limited to emissions from the closure of the Carbon Units. That is a new requirement in 

the latest revision of Utah’s Regional Haze SIP and will pre-date any requirements that 

may come out in a future MATS Rule. 

H-5
3 

6. [Conservation Organizations] EPA’s Regional Haze Regulations prohibit Utah’s 

proposed emission reduction accounting proposal. Section 309 of the Regional 

Haze regulations establishes the rules for the accounting of SO2 emissions under the 

SO2 Backstop Trading Program. 40 C.F.R. §51.309. More specifically, the regional 

haze regulations state that Utah’s 309 plan “must include provisions requiring the 

monitoring, recordkeeping, and annual reporting of actual stationary source SO2 

emissions within the State.” 40 C.F.R. §51.309(d)(4)(iii). Utah’s proposed EC SIP would 

violate this provision by arbitrarily including over 8,000 tons of SO2 emissions from the 

Carbon plant in future inventory reports, when in fact the actual emissions from the 

Carbon plant from 2016-2018 will be zero.

Response: Comparing the reported emissions with the milestone would not allow the 

monitoring, recordkeeping, and reporting data to be sufficient to determine annually 

whether the milestone for each year through 2018 is achieved. 40 CFR §51.309(d)(4)(iii). 

Additionally, the approved Utah 309 SIP requires each milestone report to include 

actual regional sulfur dioxide emissions in tons per year and adjustments to account for 

changes in emission monitoring or calculation methods. We can report zero actual 

emissions for the Carbon Plant in the milestone reports then adjust it to reflect a change 

in the calculation method so that the reductions are not accounted for twice. This will 

result in a much more conservative comparison of present day emissions to projected 

emissions in the Regional Haze SIP.

7. [Conservation Organizations] UDAQ’s delay until March 2018 to revise its SIPs is 

arbitrary and capricious. Utah’s proposed EC SIP purports to resolve the “double 

counting” of SO2 emission reductions from the Carbon plant in both the Utah RH 

SO2 SIP and the EPA pending RH NOx/PM SIP. However, Utah’s proposed EC SIP fails 

to resolve anything but instead unlawfully delays agency action until 2018, at the 

soonest.

Response: The Milestone program will end in 2018, the same time as the end of the 

current Regional Haze planning period as determined by the EPA. Utah is committed to 

resolving the double counting issue before March 2018 so that it is completed before

the conclusion of the Milestone program. While the SIP amendment may not occur 

immediately, the Enforceable Commitment ensures that emissions are accurately 

counted immediately.

8. [Conservation Organizations] UDAQ’s EC SIP amendments create irreconcilable 

accounting methodologies among the three-state Western Backstop Trading 

Program. All states in the Western Backstop Trading Program must use the same 

inventory methodology. Indeed, Section 309 specifically recognizes that, “...all 

States in the program [must] use the same methodology.” 40 C.F.R. §51.309(d)(4)(i).

While Utah’s EC SIP makes vague promises to resolve its SIP discrepancies by 2018, it 

fails to mandate similar changes to the Wyoming and New Mexico SO2 SIPs. Nothing 

H-6
4 

in the Utah EC SIP prevents Wyoming and New Mexico from counting the Carbon 

SO2 emission reductions in their future annual milestone reports.

Response: Section 309 specifically recognizes that “During the first two years of the 

program, compliance with the milestones may be measured by a methodology of the 

States' choosing, so long as all States in the program use the same methodology.” 

(Emphasis added) 40 CFR §51.309(d)(4)(i). Because each state’s emissions are reported 

separately and then compiled for the milestone report, other states cannot count 

emissions reductions from Utah as part of their inventory. Utah’s adjustment will not 

affect the other states’ reporting for their own emissions, but will impact the total 

emissions reported to EPA. 

H-7
E-1
E-2
N. ENFORCEABLE COMMITMENTS FOR THE UTAH REGIONAL HAZE SIP.

Utah has found that, in order to ensure that certain emissions reductions are not double counted 

and that the Regional Haze SIP is enforceable as a practical matter, circumstances warrant

creation of an enforceable commitment SIP. The intent of this section is to meet sections 110, 

169A, and 169B of the Clean Air Act, and to ensure that the EPA can approve the Regional Haze 

SIP. EPA applies three factors when determining whether to approve an enforceable 

commitment: (1) whether the commitment addresses a limited portion of the statutorily-required 

program; (2) whether the state is capable of fulfilling its commitment; and (3) whether the 

commitment is for a reasonable and appropriate period of time. Once approved as part of this 

SIP, these commitments are enforceable by both EPA and citizens under the Clean Air Act. Utah 

therefore commits to the following:

1. In Section D.6.c of this plan, Carbon Units 1 and 2 are required to shut down. As of 

April 14, 2015, the plants ceased operation. This enforceable shutdown resulted in SO2

reductions of 3,388 tons/year from Unit 1 and 4,617 tons/year from Unit 2, resulting in a 

total of 8,005 tons/year. The resulting combined annual emissions of NOx, SO2, and PM 

will be 2,876 tons lower than the most stringent controls. Simultaneously, as part of the 

annual milestone reports required by the Utah SIP and Section 309 of the Federal 

Regional Haze Rule (40 CFR Part 51), Utah tracks SO2 emissions from applicable 

stationary sources and compares those to milestones set in the initial Utah 309 plan. If the 

8,005 tons/year were removed in subsequent milestone reports, the State would be 

counting the reductions obtained from closure of the Carbon units twice. The State

commits to resolving this double counting issue by revising the Utah 309 plan to 

specifically state that the 8,005 tons of SO2 emissions from the Carbon units will be 

added into the annual milestone reports from 2016 through the life of the backstop 

trading program, thereby removing any credit for that emissions reduction in meeting the 

levels specified in the Utah 309 plan. 

2. This SIP is limited to addressing the SO2 emissions from the Carbon units only. 

Emissions reductions in the Alternative to BART SIP include SO2 and NOx reductions 

from the Hunter, Huntington, and Carbon Units. The total reduction in SO2 and NOx is

42,016 tons. These commitments only address the 8,005 tons of SO2 from the Carbon 

Units. The Regional Haze SO2 milestone for 2018 is 141,849 tons. As reported in the 

2013 Regional SO2 Emissions and Milestone Report, the average adjusted SO2 emissions 

for 2011, 2012, and 2013 are 105,402 tons. Without counting the reductions from the 

Carbon facility, the region has already achieved the 2018 milestone.

E-3
3. 40 CFR 51.309 sets forth emissions inventory requirements for tracking compliance with 

the SO2 milestones. SIP Section XX.D.3.c and Rule 307-150 specify the mechanism used 

to implement this tracking requirement in Utah, and require all stationary sources with 

actual emissions of 100 tons/year or more of SO2 in the year 2000 or in any subsequent 

year to submit an annual inventory of SO2 emissions, beginning with the 2003 emission 

inventory. A source that meets these criteria and then emits less than 100 tons/year in a 

later year must continue to submit an SO2 inventory for tracking compliance with the 

regional SO2 milestones until 2018. As necessary, SIP Section XX.D.3.c and R307-150 

will be revised to supplement Utah’s inventory requirements and to satisfy the needs of 

these enforceable commitments. Other applicable provisions that may be identified in the 

future will be amended as well. 

4. Utah will resolve the double-counting issue by including the 8,005 tons of SO2 emissions 

from the Carbon Power Plants in each required annual Section 309 Milestone Report 

from 2016 through the life of the backstop trading program. All required amendments to 

this SIP will be done through the State’s SIP adoption process. The SIP is adopted by the 

Governor-appointed Air Quality Board through a rulemaking process that includes public 

comment periods and an opportunity for a public hearing. 

5. Utah will submit an approvable SIP revision to EPA, along with any supporting 

document(s) by March 2018 to allow EPA to take final action before the end of the 

milestone commitment. Additionally, Utah will include the 8,005 tons/year of SO2

emissions reported by the Carbon units in the annual report of SO2 emissions used to 

trigger the backstop trading program. 

6. Utah will work with EPA and take appropriate action to resolve any completeness or 

approvability issues that arise regarding the proposed SIP revision by March 2018. 

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N. ENFORCEABLE COMMITMENTS FOR THE UTAH REGIONAL HAZE SIP.

Utah has found that, in order to ensure that certain emissions reductions are not double counted 

and that the Regional Haze SIP is enforceable as a practical matter, circumstances warrant 

creation of an enforceable commitment SIP. The intent of this section is to meet sections 110,

169A, and 169B of the Clean Air Act, and to ensure that the EPA can approve the Regional Haze 

SIP. EPA applies three factors when determining whether to approve an enforceable 

commitment: (1) whether the commitment addresses a limited portion of the statutorily-required 

program; (2) whether the state is capable of fulfilling its commitment; and (3) whether the 

commitment is for a reasonable and appropriate period of time. Once approved as part of this 

SIP, these commitments are enforceable by both EPA and citizens under the Clean Air Act. Utah 

therefore commits to the following: 

1. In Section D.6.c of this plan, Carbon Units 1 and 2 are required to will be shut down. As 

of April 14, 2015, the plants ceased operation. This enforceable shutdown will resulted in 

SO2 reductions of 3,388 tons/year from Unit 1 and 4,617 tons/year from Unit 2, resulting 

in a total of 8,005 tons/year. The resulting combined annual emissions of NOx, SO2, and 

PM will be 2,876 tons lower than the alternative Better than BARTmost stringent

controls. Simultaneously, as part of the annual milestone reports required by the Utah SIP 

and Section 309 of the Federal Regional Haze Rule (40 CFR Part 51), Utah tracks SO2

emissions from applicable stationary sources and compares those to milestones set in the 

initial Utah 309 plan. If the 8,005 tons/year were removed in subsequent milestone 

reports, the State would be counting the reductions obtained from closure of the Carbon 

units twice. The State commits to resolving this double counting issue by revising the 

Utah 309 plan to specifically state that the 8,005 tons of SO2 emissions from the Carbon 

units will be added into the annual milestone reports from 2016 through the life of the 

backstop trading program, thereby removing any credit for that emissions reduction in 

meeting the levels specified in the Utah 309 plan. 

2. This SIP is limited to addressing the SO2 emissions from the Carbon units only. 

Emissions reductions in the Alternative to BART SIP include SO2 and NOx reductions 

from the Hunter, Huntington, and Carbon Units. The total reduction in SO2 and NOx 

isThese emissions are a small part of the overall 42,016 tons of emissions reductions 

from SO2 and NOx. These commitments only address the 8,005 tons of SO2 from the 

Carbon Units. Thus, the amount of the reduction is limited to 8,005 tons.The Regional 

Haze SO2 milestone for 2018 is 141,849 tons. As reported in the 2013 Regional SO2

Emissions and Milestone Report, the average adjusted SO2 emissions for 2011, 2012, and 

2013 are 105,402 tons. Without counting the reductions from the Carbon facility, the 

region has already achieved the 2018 milestone.

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3. 40 CFR 51.309 sets forth emissions inventory requirements for tracking compliance with 

the SO2 milestones. SIP Section XX.D.3.c and Rule 307-150 specify the mechanism used 

to implement this tracking requirement in Utah, and require all stationary sources with 

actual emissions of 100 tons/year or more of SO2 in the year 2000 or in any subsequent 

year to submit an annual inventory of SO2 emissions, beginning with the 2003 emission 

inventory. A source that meets these criteria and then emits less than 100 tons/year in a 

later year must continue to submit an SO2 inventory for tracking compliance with the 

regional SO2 milestones until 2018. As necessary, SIP Section XX.D.3.c and R307-150 

will be revised to supplement Utah’s inventory requirements and to satisfy the needs of 

this these enforceable Ccommitments SIP. Other applicable provisions that may be 

identified in the future will be amended as well. 

4. Utah will resolve the double-counting issue by including the 8,005 tons of SO2 emissions 

from the Carbon Power Plants in each required annual Section 309 Milestone Report 

from 2016 through the life of the backstop trading program. All required amendments to 

this SIP will be done through the State’s SIP adoption process. The SIP is adopted by the 

Governor-appointed Air Quality Board through a rulemaking process that includes public 

comment periods and an opportunity for a public hearing. 

5. Utah will submit an approvable SIP revision to EPA, along with any supporting 

document(s) by March 2018 to allow EPA to take final action before the end of the 

milestone commitment. Additionally, Utah will include the 8,005 tons/year of SO2

emissions reported by the Carbon units in the annual report of SO2 emissions used to 

trigger the backstop trading program. 

6. Utah will work with EPA and take appropriate action to resolve any completeness or 

approvability issues that arise regarding the proposed SIP revision by March 2018. 

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I, Ryan M. Stephens, Rules Coordinator for the Utah Division of Air Quality, do hereby certify 

that the public comment period and public hearing held to receive comments regarding R307-

110-28 (DAR 39554) and SIP Subsection XX.N was held in accordance with the information 

provided in the published public notices and state law. These rules were adopted by the Air 

Quality Board on October 7, 2015. 

Signed this _16__ day of October 16, 2015.

______________________________