# @. \.

# ,,_.~_.,._....**~/'**

Michael O. Leavitt Governor Dianne R. Nielson, Ph.D. Executive Director Ursula Kramer Director 

### DEPARTMENT OFENVIRONMENTAL QUALITY DIVISION OF AIR QUALITY

150 North 1950West P.O. Box 144820 Salt Lake City, Utah 84114-4820 (801) 536-4000 (801) 536-4099 Fax (80l) 536-4414 T.D.D. www.deq.state.ut.us Web 

### DAQP-230-99.a

December 16, 1999

Richard Long, Director Air and Radiation Program EPA Region Vlli, 8P-AR 999 18th Street, Suite 500 Denver, Colorado 80202-2466

DearMr. Long:

Enclosed please find for your review the administrative documentation in support ofGovernor Leavitt's submittal ofchanges in Utah's rules for openburning.

If, 

### upon review, EPA finds that any additional documentation is needed, please contact me at (801) 536-4022.

Sincerely,

Ursula Kramer Director

UKlJMlgb

Enclosures

# -

STATE OF 

# UTAH

MICHAEL O. LEAVITT OFFICE OF THE GOVERNOR OLENE S. WALKER
GOVERNOR SALT LAKE CITY LIEUTENANT GOVERNOR 84114-0601



## December 10, 1999

William P. Yellowtail Regional Administrator EPA Region 

# vm One DenverPlace 999 18th Street, Suite 500 Denver, CO 80101-1405

DearMr. Yellowtail:



# - Enclosed are revisions in Utah's rule to regulate open burning. The change lengthens the time period during which local officials may designate a time period for open burning, but the length ofthe period remains 30 days.

Documentation for administrative support which is necessary to meet the requirements for SIP approval are being submitted separately by Ursula Kramer, Director, Division ofAir Quality. Questions your agency may have concerning this submittal should be addressed to Ms. Kramer at (80l) 536-4022.

Sincerely,

Michael O. Leavitt Governor

MOL:DRN:dco

# - 

# UTAH

AmendR307-202-5

Extend OpenBurningWindow

(DAR#22043)

StateofUtah DepartmentofEnvironmental Quality

. Division ofAirQuality 150N. 1950West P.O.Box 144820 SaltLakeCity, Utah 84114-4820 801-536-4000



# December 1999

## Amend R307-202-5 Extend Open Burning Window

Table ofContents

Legal Authority 

### Utah Code Title 19, 

### Chapter 2, 

### Air ConservationAct 1 

### Utah Code Title 63, 

### Chapter46a, AdministrativeRulemakingAct 18 

### Utah Administrative Code, R15, AdministrativeRules 26



### Proposed for Public Comment

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . P - 1 

### R307-202-5: DAR

### Bulletin (Juney 1, 1999) Rule AnalysisForm, DAR

### # 22043 P - 2 Text ofR307-202-5 P - 3



### Public Hearing

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. H - 1 

### Affidavit ofnewspapernotice

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. H - 2 Hearing statementand roster H-3 Summary ofpublic comments and responses

. . . . . . . .. H - 9

Effective Rule

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. E - 1 

### Certified text, R307-202-S (DAR#22043)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. E - 2 Affidavit ofnewspapernotice ofeffective date E - 5 DAR

### Bulletin (August 1, 1999)Effective DateNotice E - 6

Certification

# CodesCbapter 2.Air Conservation Act



### CHAPTER2 AIR CONSERVATION ACT

19-2-101. Shorttitle

- Policy ofstate and purpose ofchapter

- Support oflocal and regional programs

­ Provision ofcoordinated statewide program. 19-2-102. Definitions. 19-2-103. Members ofboard

- Appointment

- Tenns

- Organization

- Perdiem and expenses. 19-2-104. Powers ofboard. 19-2-105. Duties ofboard. 19-2-105.3. Clean fuel requirements for fleets. 19-2-106. Rulemaking authority and procedure. 19-2-107. Executive secretary

- Appointment

- Powers. 19-2-108. Notice ofconstruction ormodification ofinstallations required

- Authority ofexecutive secretary to prohibit construction

- Hearings

- Limitations on authority ofboard

- Inspections authorized. 19-2-109. Airquality standards

- Hearings on adoption

- Orders ofexecutive secretary

- Adoption of emission control requirements. 19-2-109.1. Operating pennitrequired

- Emissions fee

- Implementation. 19-2-109.2. Small business assistance program. 19-2-109.3. Public access to infonnation. 19-2-109.5. Private sector air quality pennitting professionals certification program. 19-2-110. Violations

- Notice to violator

- Corrective action orders

- Conference, conciliation, and persuasion by board.'

..>-' 

### 19-2-111. Review oforders ofhearing examiner

- Procedure. 19-2-112·

..**~.** 

### Generalized condition ofair pollution creating emergency

- Sources causing imminent dangerto health

- Powers ofexecutive director

- Declaration ofemergency. 19-2-113. Variances

- Judicial review.


# - 19-2-114. Activities not in violation ofchapter or rules. 19-2-115. Violations

- Penalties

- Reimbursement for expenses. 19-2-116. Injunction orotherremedies to prevent violations

- Civil actions not abridged. 19-2-117.. Attorney general as legal advisorto board

- Duties ofattorney general and county attorneys. 19-2-118. Violation ofinjunction evidence ofcOritempt.**19-2-11~.** 

### Civil or criminal remedies not excluded

- Actionable rights under chapter

- No liability for acts of God or other catastrophes. 19-2-120. Information required ofowners oroperators ofair contaminant sources. 19-2-121. Ordinances ofpolitical subdivisions authorized. ]9-2-122. Cooperative agreements between political subdivisions and department. 19-2-123

.. Tax reliefto encourage investment in facilities

-**Sal~** 

### and use tax exemption. 19-2-124. Application for certification ofpollution"control facility.**J9-2-12~.** 

### Action on application for certification. 19-2-126. Revocation ofcertification

- Grounds

- Procedure. 

### 19-2-12J. Rules for administering certification for tax 

### relief.

19-2-101 Short title

- Policy ofstate and purpose of economic and social development ofthis state, and chapter

- Support oflocal and regional programs

­ facilitate the enjoyment ofthe natural attractions of Provision ofcoordinated statewide program. this state. (1) 

### This chapteris known as the "Air Conservation (3) 

### Local and regional air pollution control programs Act."

. shall be supported to the extent practicable as (2) 

### It is the policy ofthis state and the purpose ofthis essential instruments to secure and maintain chapterto achieve and maintain levels ofair quality appropriate levels ofair quality. which will protect human health and safety, and to (4) The purpose ofthis chapter is to: the greatest degree practicable, prevent injury to (a) provide for a coordinated statewide program of plant and animal life and property, foster the air pollution prevention, abatement, and comfort and convenience ofthe people, promote the control;

### (b) provide for an appropriate distribution of responsibilities among the state and local units ofgovernment; (c) facilitate cooperation acrossjurisdictional lines in dealing with problems ofairpollution not confined within singlejurisdictions; and (d) provide a framework within which air quality may beprotected and consideration given to the public interest at all levels ofplanning and development within the state.

19-2-102 Definitions As used in this chapter: (1) "Air contaminant" means any particulate matter or any gas, vapor, suspended solid, orany combination ofthem, excluding steam and water vapors. (2) "Air contaminant sour.ce" means all sources of emission ofair contaminants whetherprivately or publicly owned oroperated. (3) "Airpollution" meansthe presence in the ambient air ofone or more air contaminants in the quantities and duration and under conditions and circumstances as is ortends to be injurious to human health or welfare, animal orplant life, or property, orwould unreasonably interfere with the enjoyment oflife or use ofproperty, as determined by the rules adopted by the board. (4) "Ambient air" means the surrounding or outside air. (5) "Asbestos" means the asbestifonn varieties of serpentine (chrysotile), riebeckite (crocidolite), cummingtonite-grunerite, anthophyllite, and actinolite-tremolite. (6) "Asbestos-containing material" means any material containing more than 1% 

### asbestos, as detennined using the method adopted in 40 CFR Part 6 1, Subpart M, National Emission Standard for Asbestos. (7) "Asbestos inspection" means an activity undertaken
to determine the presence or location, orto assess the condition of, asbestos-containing material or suspected asbestos-containing material, whether by visual or physical examination, or by taking samples ofthe material. (8) (a) "Board" means the Air Quality Board. (b) "Board" means, as used in Sections 19-2-123 through 19-2-126, the Air Quality Board orthe Water Quality Board. (9) "Executive secretary" means the executive secretary ofthe board. (lO)(a) "Facility" means machinery, equipment, structures, or any part or accessories ofthem, installed oracquired for the primary purpose of controlling or disposing ofairpollution. Chapter2.AirConservation Act



### (b) "Facility" does not include an air conditioner, fan, orother similar facility for the comfort of personnel. (11) "Friable asbestos-containing material" means any material containing more than I% 

### asbestos, as determined using the method adopted in 40 CFR Part 61, Subpart M, National Emission Standard for Asbestos, that hand pressure can crumble, pulverize, orreduce to powderwhen dry. (12) "Indirect source" means a facility, building, structure, or installation which attracts ormay attract mobile source activity that results 

### in emissions ofa pollutant for which there is 8 

### national standard. (l3)(a) "Pollution control facility" or "facility" means,

as used in Sections 19-2-123 through 19-2-126, any land, structure, building, installation, excavation, machinery, equipment, ordevice, or any addition to, reconstruction, replacement or improvement of, land oran existing structure, building, installation, excavation, machinery, equipment, ordevice reasonably used, erected, constructed, acquired, or installed by any person ifthe primary purpose ofthe use, erection, construction, acquisition, or installation is the prevention, control, or reduction ofair or waterpollution by: (i) 

### the disposal or elimination oforredesign to eliminate waste and the use oftreatment works for industrial waste as defined in Title 19, Chapter 5, Water Quality Act; or (ii) the disposal, elimination, orreduction ofor redesign to eliminate orreduce air contaminants orairpollution or air contamination sources and the use ofair cleaning devices. (b) "Pollution control facility" or "facility" does not include air conditioners, septic tanks, or other facilities for human waste, nor any property installed, constructed, orused for the moving of sewage to the collection facilities ofa public or quasi-public sewerage system.

19-2-103 Members ofboard

- Appointment

- Terms

- Organization

- Per diem and expenses. (I) The board comprises 11 members, one ofwhom shall be the executive director and ten ofwhom shall be appointed by the governor with the advice and consent ofthe Senate. (2) The members shall be knowledgeable ofair pollution matters and shall be: (a) a practicing physician and surgeon licensed in the state not connected with industry;Chapter2. AirConservation Act



### (b) a registered professional engineer who is not from industry; (c) a representative from municipal government; (d) a representative from county government; (e) a representative from agriculture; (f) 

### a representative from the mining industry; (g) a representative from manufacturing; (h) a representative from the fuel industry; and (i) two representatives ofthe public not representing orconnected with industry, at least

one ofwhom represents organized environmental interests. (3) No more than five ofthe appointed members shall belongto the same political party. (4) The majority ofthe members may not derive any significant portion oftheir income from persons subjectto permits or orders underthis chapter. Any potential conflict ofinterest ofany member or the executive secretary, relevant to the interests ofthe board, shall be adequately disclosed. (5) 

### Members serving on the AirConservation Committee created by Chapter 126, Laws of

### Utah 1981, as amended, shall serve as members ofthe board throughoutthe tenns for which they were appointed.



# - (6) (a) Except as required by Subsection (b), members shall be appointed for a term offour years. (b) Notwithstandingthe requirements of Subsection (a), the governor shall, at the time ofappointment orreappointment, adjust the length ofterms to ensure that the tenns ofboard members are staggered so that approximately halfofthe board is appointed every two years. (7) 

### Members may serve more than one tenn. (8) Members shall hold office until the expiration of their terms and until their successors are appointed, but not more than 90 days afterthe expiration of their terms. (9) When a vacancy occurs in the membership for any reason, the replacement shall be appointed for the unexpired term. (10) The board shall elect annually a chair and a vice chairfrom its members. (11)(a) The board shall meet at least quarterly, and special meetings may be called by the chair upon his own initiative, upon the request ofthe executive secretary, or upon the written request ofthree members ofthe board. (b) Three days' notice shall be given to each member ofthe board priorto any meeting.



# - (12) Six members constitute a quorum at any meeting, and the action ofa majority ofmembers present is the action ofthe board. (13)(a)(i) Members who are not government employees shall receive no compensation orbenefits for their services, but may receive per diem and expenses incurred in the perfonnance ofthe member's official duties at the rates established by the Division ofFinance under Sections 63A-3-106 and 63A-3-107. (ii) Members may decline to receive per diem and expensesfor their service. (b)(i) State government officer and employee members who do not receive salary, per diem, or expenses from their agency for their service may receive perdiem-and expenses incurred in the perfonnance oftheir official duties from the board at the rates established by the Division ofFinance under**S~ctions** 

### 63A-3-I06 and 63A-3-I07. (ii) 

### State government officer and employee members may decline to receive per diem and expenses for their service. (c)(i) Local government members who do not receive salary, per diem, or expenses from the**_~** 

### entity that they represent for their service may receive per diem and expenses incurred in the performance oftheir official duties at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-I07. (ii) 

### Local government members may decline to receive per diem and expenses for their service.



### 19-2-104 Powers ofboard. (1) The board may make rules in accordance with Title 63, Chapter46a, 

### Utah Administrative Rulemaking Act: (a) regarding the control, abatement, and prevention ofair pollution from all sources and the establishment ofthe maximum quantity of air contaminants that may be emitted by any air contaminant source; (b) establishing airquality standards; (c) requiring persons engaged in operations which result in airpollution to: (i) install, maintain, and use emission monitoring devices, as the board finds necessary; (ii) file periodic reports containing infonnation relating to the rate, period ofemission, and composition ofthe air contaminant; and (iii) provide access to records relating to emissions which cause orcontribute to air pollution; (d) implementing 15 U.S.C.A. 2601 et seq. Toxic

### Substances Control Act, Subchapter II

­ Asbestos Hazard Emergency Response, and reviewing and approving asbestos management plans submitted by local education agencies under that act; (e) establishing a requirement for a diesel emission opacity inspection and maintenance program for diesel-powered motor vehicles; (t) 

### implementing an operating permit program as required by and in confonnitywith Titles IV and V ofthe federal Clean AirAct Amendments of 1990; (g) establishing requirements for countyemissions inspection.and maintenance programs after obtaining agreement from the counties that would be affected by the requirements; (h) with the approval ofthe governor, implementing in air quality nonattainment areas employer-based trip reduction programs applicable to businesses having morethan 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 consistentwith the state implementation plan and federal requirements under the standards set forth in Subsection (2); and (i) implementing lead-based paint remediation training, certification, and performance requirements in accordance with 15 V.S.C.A. 

### 2601 et seq., Toxic Substances Control Act, Subchapter IV

-- Lead Exposure Reduction, Section 402 and 404. (2) When implementing Subsection (I)(h) the board shall take into consideration: (a) the impact ofthe business on overall air quality; and (b) the need ofthe business to use automobiles in orderto carry out its business purposes. (3) The board may: (a) hold hearings relating to any aspect oformatter in the administration ofthis chapterand compel the attendance ofwitnesses and the production ofdocuments and otherevidence, administer oaths and take testimony, and receive evidence

as necessary; (b) issue orders necessary to enforce the provisions ofthis chapter, enforce the orders by appropriate administrative andjudicial proceedings, and institutejudicial proceedings
to secure compliance with this chapter; (c) settle orcompromise any civil action initiated
to compel compliance with this chapter and the Cbapter2.Air Conservation Act



### rules made underthis chapter; (d) secure necessary scientific, technical, administrative, and operational services, including laboratory facilities, by contract or otherwise; (e) prepare and develop a comprehensive plan or plans for the prevention, abatement, and control ofair pollution in this state; (f) 

### encourage voluntary cooperation by persons and affected groups to achieve the purposes ofthis chapter; (g) encourage local units ofgovernment to handle air pollution within their respectivejurisdictions

on a cooperative basis and provide technical and consultative assistance to them; (h) encourage and conduct studies, investigations, and research relating to air contamination and air po])ution and their causes, effects, prevention, abatement, and control; (i) detennine by means offield studies and samplingthe degree ofair contamination and air pollution in all parts ofthe state; 

## U) monitorthe effects ofthe emission ofair

_.>-. 

### contaminants from motor vehicles on the quality ofthe outdoor atmosphere in alIparts ofthis
state and take appropriate action with respect to them; (k) 

### collect and disseminate information and conduct educational and training programs relatingto air contamination and air pollution; (1) 

### advise, consult, contract, and cooperate with other agencies ofthe state, local governments, industries, other states, interstate or interlocal agencies, the federal government, and with interested persons orgroups; (m) consult, upon request, with any person proposing to construct, install, orotherwise acquire an air contaminant source in the state concerningthe efficacy ofany proposed control device, orsystem for this source, or the air pollution problem which may be related to the
source, device, orsystem, but a consultation does not relieve any person from compliance with this chapter, the rules adopted under it, or any otherprovision oflaw; (n) accept, receive, and administer grants orother funds orgifts from public and private agencies, including the federal government, for the purpose ofcarryingout any ofthe functions of this chapter; (0) 

### require the owner and operator ofeach new
source which directly emits or has the potential
to em'it 100 tons peryear or more ofany airChapter2, AirConservation Act



### contaminant orthe owneroroperator ofeach existing source which by modification will



# - increase emissions or have the potential of increasing emissions by 100 tons per year or

more ofany air contaminant, to pay a fee sufficientto coverthe reasonable costs of: (i) reviewing and acting upon the notice required under Section 19-2-108; and (ii) 

### implementing and enforcing requirements " placed on the sources by any approval order issued pursuant to notice, not including any court costs associated with any enforcement action; (p) assess and collectnoncompliance penalties as required in Section 120 ofthe federal Clean Air Act, 42 U.S.C. Sec. 7420; (q) meetthe requirements offederal air pollution laws; (r) establish work practice, certification, and clearance air sampling requirements for persons who:

(i) contract for hire to conduct demolition, renovation, salvage, encapsulation work involving friable asbestos-containing materials, orasbestos inspections; or (ii) conduct work described in Subsection (i) in

areas to which the general public has unrestrained access or in school buildings that are subject to the federal Asbestos Hazard Emergency Response Act of 1986; (iii) conduct asbestos inspections in facilities subject to IS V.S.C.A. 2601 et seq., Toxic Substances Control Act, Subchapter 11

­ Asbestos Hazard Emergency Response; or (iv) conduct lead paint inspections in facilities subject to IS V.S.C.A. 2601 et seq., Toxic Substances Control Act, Subchapter IV

-­ Lead Exposure Reduction; (s) establish certification requirements for persons required under IS V.S.C.A. 2601 et seq., Toxic Substances Control Act, Subchapter 11

­ Asbestos Hazard Emergency Response, to be accredited as inspectors, managementplanners, abatementproject designers, asbestos abatement
contractors and supervisors, or asbestos abatementworkers; (t) establish certification requirements for asbestos projectmonitors, which shall provide for experience-based certification ofpersons who, priorto establishment ofthe certification requirements, had received relevant asbestos training, as defined by rule, and had acquired at least 1,000 hours ofexperience as project monitors; (u) establish certification procedures and requirements for certification ofthe conversion ofa motor vehicle to a clean-fuel vehicle, certifying the vehicle is eligible for the tax 

### credit granted in Section 59-7-605 or 59-10-127; (v) establish a program to certify private sector air quality permitting professionals (AQPP), as described in Section 19-2-109.5;"and (w) establish certification requirements forpersons required under IS U.S.C.A. 2601 et seq., Toxic Control Act, Subchapter IV

- Lead Exposure Reduction, to be accredited as inspectors, risk
assessors, supervisors, project designers, or abatement workers. (4) Any rules adopted underthis chapter shall be consistent with provisions offederal laws, ifany, relating to control ofmotor vehicles ormotor vehicle emissions. (5) Nothing in this chapter authorizes the board to require installation oforpayment for any

j..

### monitoring equipment by the owneroroperator ofa

source ifthe owner oroperator has installed or is operating monitoring equipment that is equivalent to equipment which the board wouldrequire under this section.

Amendedbych. J77, § J. J 998 GeneralSession.



### 19-2-105 Duties ofboard. The board, in conjunction with the governing body of each county identified in Section 41-6-163.7 and other interested parties, shall perform an evaluation ofthe inspection and maintenance program developed under Section 41-6-163.7 including issues relating to: (I) the implementation ofa standardized inspection and maintenance program; (2) out-of-state registration ofvehicles used in Utah; (3) out-of-countyregistration ofvehicles used within the areas required to have an inspection and maintenance program; (4) use ofthe farm truck exemption; (5) mechanic training programs; (6) emissions standards; and (7) emissions waivers.



### 19-2-105.3 Clean fuel requirements for fleets. (I) 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) 

### propan.e, compressed natural gas, or 

# 5

### electricity; (ii) other fuel the Air Quality Board created in Title 19, Chapter 2, Air Conservation Act, determines annually on orbefore July 1is
at least as effective as fuels under Subsection (1

### )(b)(i) in reducing air pollution; and (iii) other fuel thatmeets the clean fuel vehicle standards in the 1990 Clean Air Act. (c) "Fleet" means ten ormore vehicles: (i) owned oroperated by a single entity as defined by board rule; and (ii) capable ofbeing fueled orthat are fueled at

a central location. (d) "Fleet" does not include motor vehicles that are: (i) held for lease orrental to the general public; (ii) held for sale orused as demonstration vehicles by motor vehicle dealers; (iii) used by motor vehicle manufacturers for product evaluations ortests; (iv) authorized emergency vehicles as defined in Section 41-6-1 ; (v) registered under Title 41, Chapter 1a, Part 2, Registration, as farm vehicles; (vi) special mobile equipment as defined in Section 41-1a-I02; (vii) heavy duty trucks with a gross vehicle weight rating ofmore 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 ofreasonably available pollution control strategies, and as part ofthe
state implementation plan demonstrating attainment ofthe national ambient air quality standards, the board may by rule, subject to Subsection (2)(c), require fleets in specified geographical areas to use clean fuels ifthe board determines fleet use ofclean fuels is: (i) necessary to demonstrate attainment ofthe national ambient airquality standards in any
area where they are required; and (ii) 

### reasonably cost effective when compared
to other similarly beneficial control strategies for demonstrating attainment of the national ambient airquality standards. (b) State implementation plans developed priorto Chapter2, AirConservation Act



### July 1, 1995, may require fleets to use clean fuels no earlierthan July I, 1995, unless the board determines fleet use ofclean fuels is necessary priorto July 1, 1995, to demonstrate attainment ofthe national ambient air quality standards in any area by an attainment date established by federal law. (c) The board may not require more than 50% of those trucks 

### in a fleet that are heavy dutytrucks having a gross vehicle weight rating ofmore than 8,500 pounds and notmorethan 26,000 poundsto convert to clean fuels under Subsection (b). (3) (a) After evaluation ofreasonably available pollution control strategies, and as part ofa state implementation plan demonstrating only maintenance ofthe national ambient air quality standards, the board may byrule, subjectto Subsection (3)(b), require fleets in specified geographical areas to use clean fuels ifthe board determines fleet use ofclean fuels is:

.>- 

### (i) necessary to demonstrate maintenance ofthe national ambient air quality standards in any
area where they are required; and (ii) reasonably cost effective as compared with other similarly beneficial control strategies for demonstrating maintenance ofthe national ambient air quality standards. (b) Under Subsection (a) the board may require no
more than: (i)

### 30% ofa fleet to use clean fuels before January 1, 1998; (ii) 50% ofa fleet to use clean fuels before January I, 1999; and (iii) 70% ofa fleet to use clean fuels before January I, 2000. (c) The board may not require more than 50% of those trucks in a fleet that are heavy duty trucks having a gross vehicle weight rating ofmore than 8,500 pounds and not more than 26,000 pounds to convert to clean fuels under Subsection (b). (4) Rules the board makes under this section may include: (a) dates by which fleets are required to convert to clean fuels underthe provisions ofthis section; (b) definitions offleet owners or operators; (c) definitions ofvehicles exempted from this section by rule; (d) certification requirements for persons who install clean fuel conversion equipment, including testing and certification standards regarding insta.llers; andCbapter 1,AirConservation Act



### (e) certification fees for installers, established under Section 63-38-3.2. (5) Implementation ofthis section and rules made under this section are subjectto the reasonable availability ofclean fuel in the local market as detennined by the board.

19-2-106 Rulemaking authority and procedure. (1) Except as provided in Subsection (2), no rule which the board makes for thepurpose ofadministering a program underthe federal Clean AirAct may be

more stringentthan the corresponding federal regulations which address the same circumstances. In making rules, the board may incorporate by reference corresponding federal regulations. (2) The board may make rules more stringentthan corresponding federal regulations for the purpose described in Subsection (1), only ifit makes a written finding afterpublic comment and hearing and based on evidence in the record, that corresponding federal regulations are not adequate
to protect public health and the environment ofthe
state. Those findings shall be accompanied by an opinion referring to and evaluating the public health and environmental information and studies contained in the record which form the basis for the board's conclusion.

19-2-107 Executive secretary

- AppointmentPowers. (1) The executive secretary shall be appointed bythe executive director, with the approval ofthe board, and shall serve underthe administrative direction of the executive director. (2) The executive secretary may: (a) develop programs for the prevention, control, and abatement ofnew or existing air pollution

resources ofthe state; (b) advise, consult, and cooperate with other agencies ofthe state, the federal government, other states and interstate agencies, and with affected groups, political subdivisions, and industries in furtherance ofthe purposes ofthis chapter; (c) employ full-time employees necessary to carry out this chapter; (d) as authorized by the board, subject to the provisions ofthis chapter, authorize any employee orrepresentative ofthe department to enter at reasonable time and upon reasonable notice in or upon public orprivate property for the purposes ofinspecting and investigating conditions and plant records concerning possible air pollution; (e) encourage, participate in, orconduct studies, investigations, research, and demonstrations relating to air·pollution and causes ofit as advisable and necessary for the discharge of duties assigned underthis chapter, including the establishment ofinventories ofpollution
sources; 

### (f) collect and disseminate infonnation rCiating to airpollution and the prevention, control, and abatement ofit; 

### (g) as authorized by the board subjectto the provisions ofthis chapter, enforce rules through the issuance oforders, including: (i)

### prohibiting or abating discharges ofwastes affecting ambient air; (ii) requiring the construction ofnew control facilities or any parts ofnew control facilities orthe modification, extension, or alteration ofexisting control facilities or any parts ofnew control facilities; or (iii) the adoption ofotherremedial measures to

.>.. 

### prevent, control, orabate airpollution;



### (h) review plans, specifications, or other data relative to pollution control systems or any part ofthe systems provided in this chapter; (i) as authorized by the board, subjectto the provisions ofthis chapter, exercise all incidental
powers necessary to cany out the purposes of this chapter, including certificationto any state

or federal authorities for tax purposes the fact of construction, installation, oracquisition ofany facility, land, building, machinery, or equipment

or any part ofthem, in confonnity with this chapter; 

## U) cooperate with 

### any person in studies and research regarding air pollution, its control, abatement, and prevention; and (k) represent the state with the specific concurrence ofthe executive director in all matters pertaining to interstate air pollution, including interstate compacts and similar agreements.

19-2-108 Notice ofconstruction or modification of installations required

- Authority ofexecutive secretary to prohibit construction

- Hearings

­ Limitations on authority ofboard

- Inspections authorized. (1) The board shall require that notice be given to the executive secretary by anyperson planning to construct a new installation which will ormight reaSonably be expected to be a source or indirect

source ofairpollution orto make modifications to 

# 1

J**~.-.** 

### an existing installation which will or might reasonably be expected to increase the amount ofor change the character or effect ofair contaminants discharged, so that the installation may be expected
to be a source or indirect source ofair pollution, or by any person planning to install an air cleaning device or other equipment intended to control emission ofair contaminants. (2) (a) (i) The executive secretary may require, as a condition precedentto the construction, modification, installation, or establishment ofthe air contaminant source orindirect
source, the submission ofplans, specifications, and other information as he finds necessaryto determine whetherthe proposed construction, modification, installation, or establishment will be in accord with ap'plicable rules in force under this chapter. (ii) Plan approval for an indirect source may be delegated by the executive secretary to a local authority when requested and upon
assurance that the local authority has and will maintain sufficient expertise to insure that the planned installation will meet the requirements established by law. (b) Ifwithin 90 days afterthe receipt ofplans, specifications, orother information required underthis subsection, the executive secretary determines that the proposed construction, installation, orestablishment or any part ofit will not be in accord with the requirements of this chapter or applicable rules orthat further time, not exceeding three extensions of30 days each, is required by the boardto adequately review the plans, specifications, or other information, he shall issue an orderprohibiting the construction, installation, or establishment ofthe air contaminant source or sources in whole or in part. (3) In addition to any otherremedies, any person aggrieved by the issuance ofan ordereither granting ordenying a request for the construction of

a new installation, and priorto invoking any such other remedies shall, upon request, in accordance with the rules ofthe board, be entitled to a hearing. Followingthe hearing, the permit may be affirmed, modified, orwithdrawn. (4) Any features, machines, and devices constituting parts oforcalled for by plans, specifications, or other information submitted under Subsection (1) shall be maintained in good working order. (5) This section does not authorize the board to require Chaptn2, Air Conservation Act



### the use ofmachinery, devices, or equipment from a particular supplierorproduced by a particular manufacturer ifthe required performance standards may be met by machinery, devices, or equipment otherwise available. (6) (a) Any authorized officer, employee, or representative ofthe board may enter and inspect any property, premise, orplace on or at which an air contaminant source is located or is being constructed, modified, installed, or established at any reasonable time for the purpose ofascertaining the state ofcompliance with this chapter and the rules adopted under it. (b) (i) 

### A person may not refuse entry or access to any authorized representative ofthe board who requests entry for purposes of inspection and who presents appropriate credentials. (ii) A person may not obstruct, hamper, or interfere with any inspection. (c) Ifrequested, the owner oroperator ofthe premises shall receive a report setting forth all j.. 

### facts found which relate to**compli~nce** 

### status.



### 19-2-109 Air quality standards

- Hearings on adoption

- Orders ofexecutive secretary

- Adoption ofemission control requirements. (1) (a) The board, in adopting standards ofquality for 

# ­
ambient air, shall conduct public hearings. (b) Notice ofany public hearing for the consideration, adoption, or amendment ofair 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 published at least twice in any newspaper ofgeneral circulation in the area affected and shall be mailed at least 20 days before the public hearing to the chiefexecutive ofeach political subdivision ofthe area affected and to otherpersons the executive secretary has

reason to believe will be affected by the standards. (d) The adoption ofairquality standards or any modification or changes to air quality standards shall be by orderofthe executive secretary following formal action ofthe board with respect to the standards. (e) The ordershall be published in a newspaper of general circulation in the area affected. (2) (a) The board may establish emission control requirements by rule that in itsjudgment may be necessary to prevent, abate, orcontrol air pollution that may be statewide or may varyChapter2. AirConservarion Act



### from area to area, taking into account varying local conditions. (b) In adopting these requirements, the board shall give notice and conduct public hearings in accordance with the requirements in Subsection (1 ).

19-2-109.1 Operating permit required

- Emissions fee

- Implementation. (1) 

### As used in this section and Sections 19-2-109.2 and 19-2-109.3: (a) "EPA" means the federal Environmental Protection Agency. (b) "1990 Clean AirAct" meansthe federal Clean AirAct as amended in 1990. (c) "Operating pennit" means a permit issued by the executive secretary to sources ofair pollution that meetthe requirements ofTitles IV and V ofthe 1990 Clean AirAct.

o 

### (d) "Program" means the air pollution operating permit program established under this section to comply with Title V ofthe 1990 Clean Air Act. (e) "Regulated pollutant" has the same meaning as defined in Title V ofthe 1990 Clean Air Act and implementing federal regulations. (2) (a) A person may not operate any source ofair pollution required to have a permit under Title V ofthe 1990 Clean AirAct without having 

# - obtained an operating permit from the executive secretary under procedures the board establishes by rule. (b) A person is not required to submit an operating permit application until the governorhas submitted an operating permit program to the EPA. (c) Any operating permit issued underthis section may not become effective until the day afterthe EPA issues approval ofthe permit program or November IS, 1995, whichever occurs first. (3) (a) Operating permits issued underthis section shall be for a period offive years unless the board makes a written finding, afterpublic
comment and hearing, and based on substantial evidence in the record, that an operating permit
term ofless than five years is necessary to protect the public health and the environment of the state. (b) The executive secretary may issue, modify, or
renew an operating permit only afterproviding public notice, an opportunity for public comment, and an opportunity for a public hearing. 

# .­ (c) The executive secretary shall, in conformity with the 1990 Clean AirAct and implementing federal regulations, revise the conditions of issued operating permits to incorporate applicable federal regulations in conformity with Section 502(b)(9) ofthe 1990 Clean Air Act, ifthe remaining period ofthe permit is three ormore years. (d) The executive secretary may terminate, modify, revoke, or reissue an operating permit for cause. (4) (a) The board shall establish a proposed annual emissions fee that confonns with Title V ofthe 1990 Clean AirAct for each ton ofregulated pollutant, applicable to al1 sourcesrequired to obtain a pennit. The emissions fee established under this section is in addition to fees assessed under Section 19-2-108 for issuance ofan approval order. (b) In establishing the fee the board shall comply with the provisions ofSection 63-38-3.2 that require a public hearing and require the established fee to be submittedto the Legislature for its approval as part ofthe department's annual appropriations request. J..·(c) The fee shaH 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 boarctshall prepare an annual report ofthe emissions fees collected and the
costs covered by those fees underthis subsection. (d) The fee shall be established unifonnly for aH

sources required to obtain an operating pennit underthe program and for all regulated pollutants. (e) The fee may not be assessed for emissions of

_any regulated pollutant ifthe emissions are

already accounted for within the emissions of another regulated pollutant. (t) 

### An emissions fee may not be assessed for any amount ofa regulated pollutant emitted by any

source in**~xcess** 

### of4,000 tons peryear ofthat regulated pollutant. (5) Emissions fees for the period: (a) ofJuly I, 1992, through June 30, 1993, shall be based on the most recent emissions inventory prepared by the executive secretary; (b) on and afterJuly I, 1993, butpriorto issuance ofan operating permit, shall be based on the
most recent emissions inventory, unless a
source elects priorto July I, 1992, to base the fee on allowable emissions, ifapplicable for a regulated poHutant.,'. i.: 

### (6) After an operating pennit is issuedthe emissions fee shall be based on actual emissions for a regulated pollutant unless a source elects, prior to the issuance

orrenewal ofa pennit,tobase the fee during the period ofthe permit on allowable emissions for that regulated pollutant. (7) Ifthe owner or operator ofa source subjectto this section fails to timely pay an annual emissions fee, the executive secretary may: (a) impose a penalty ofnot morethan 50% ofthe fee, in addition tothe fee, plus interest on the fee computed at 12% annually; or (b) revoke the operating permit. (8) The owner or operator ofa source subjectto this section may contest an emissions fee assessment or associated penalty in an adjudicative hearing under the Title 63, Chapter46b, Administrative Procedures Act, as provided in this subsection. (a) The owner or operatormust pay the fee under protest priorto being entitled to a hearing. Payment ofan emissions fee orpenalty under protest**i~** 

### not a waiver oftheright to contestthe fee or penalty under this subsection. (b) A request for a hearing underthis subsection shal1 be made afterpayment ofthe emissions fee and within six months afterthe emissions fee was due. (9) To reinstate an operating permitrevoked under Subsection (7) the owner oroperator shall pay all outstanding emissions fees, a penalty ofnot more than 50% ofall outstanding fees, and interest onthe outstanding emissions fees computed at 12% annually, (l0) All emissions fees and penalties collected by the department underthis section shall be deposited in the General Fund as the Air Pol1ution Operating Permit Program dedicated creditto be used solely
to pay for the reasonable direct and indirect costs incurred by the department in developing and administering the program and the small business assistance program under Section 19-2-109.2. (11) Failure ofthe executive secretary to act on any operating permit application or renewal is a fmal administrative action only forthe purpose of obtainingjudicial review by any ofthe following persons to require the executive secretary to take action on the permit orits renewal without additional delay: (a) the applicant; (b) any person who participated in the public
commentprocess; or (c) any otherperson who could obtainjudicial review ofthat action under applicable law. Chapter2, Air Conservation Act



### 19-2-109.2 Small business assistance program. (1) The board shall establish a small business stationary

sourcetechnical and environmental compliance assistance program that conforms with Title V ofthe 1990 Clean AirAct to assist small businesses to comply with state and federal air pollution laws. (2) There is created theCompliance Advisory Panel to advise and monitorthe program created in Subsection (I). The seven panel members are: (a) two members who are not owners or representatives ofowners ofsmall business stationary air pollution sources, selected by the governorto represent the general public; (b) four members who are owners orwho represent

owners ofsmall business stationary sources selected by leadership ofthe Utah Legislature

as follows: (i) one member selected by the majority leader ofthe Senate; (ii) one member selected by the minority leader ofthe Senate; (iii) one member selected by the majority leader ofthe House ofRepresentatives; and (iv) one member selected by the minority leader ofthe House ofRepresentatives; and (c) one member selected by the executive director
to representthe Division ofAir Quality, Department ofEnvironmental Quality. (3) (a) Except as required by Subsection (b), as tenns ofcurrent panel members expire, the department shall appoint each new member or reappointed memberto a four-year term. (b) Notwithstandingthe requirements ofSubsection (a), the department shall, at the time of appointment orreappointment, adjust the length ofterms to ensure that the terms ofpanel members are staggered sothat approximately halfofthe panel is appointed everytwo years. (4) Members may serve more than one term. (5) Members shall hold office until the expiration of theirterms and until their successors are appointed. but not more than 90 days afterthe 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 chairfrom its members. (8) (a) The panel shall meet as necessary to carry out its duties. Meetings may be called by the chair, the executive secretary, or upon written request ofthree ofthe members ofthe panel. (b) Three days' notice shal1 be given to each 

# t,PChaptcr2. Air Conscrvation Act



### member ofthe panel priorto a meeting. (9) Four members constitute a quorum at any meeting, and the action ofthe majority ofmembers present is the action ofthe panel. (10)(a)(i) Members who are not government employees shall receive no compensation orbenefits for their services, but may receive per diem and expenses incurred in the performance ofthe member's official duties at the rates established by the Division ofFinance under Sections 63A-3-106 and 63A-3-107. (ii) Members may decline to receive per diem and expenses for their service. (b)(i) State government officer and employee members who do not receive salary, per diem, orexpenses from their agency for their service may receive perdiem and expenses incurred in the perfonnance oftheir official duties from the panel at the rates established by the Division ofFinance under Sections 63A-3-106 and 63A-3-I07. (ii) State government officer and employee members may decline to receive perdiem and expenses for their service. (c) Legislators on the committee shall receive compensation and expenses as provided by law


# _. and legislative rule.



### 19-2-109.3 Public access to information. A copy ofeach permit application, compliance plan, emissions orcompliance monitoring report, certification, and each operating pennit issued underthis chapter shall be made available to the public in accordance with Title 63, Chapter2, Government Records Access and Management Act.



### 19-2-109.5 Private sector air quality permitting professionals certification program. (1) Asused in this section, "AQPP" means an air quality pennittingprofessional. (2) The board may establish a program to certify private
sectorAQPPs, including consultants and employees ofcompanies that may seek air quality permits from the division. Any program established under this sectionMII include: 

# , (a) a training program established and operated by the department, which describes and explains the state law and rules regarding the air quality permit application and approval procedure underthis chapter; (b) the requirement to pass an exam to measure qualifications ofAQPP applicants; (c) an option for certification ofan AQPP by passing the exam without undergoing any training required underthe program; (d) an application process, including a fee established under Section 63-38-3.2 thatcovers the costs ofthe training, testing, and application process and the department's maintenance ofa list ofcertified AQPPs; (e) certification ofqualified AQPP applicants; 

### (f) maintenance by the department ofa current list ofcertified AQPPs, which is available to the public; and (g) procedures for the expedited review by the department ofair quality permit applications submitted by certified AQPPs; and (h) professional standards for AQPPs. (3) The board may not require AQPP certification as a condition ofpreparing or submitting a notice of intent oroperating pennit application underthis chapter. (4) Any program under this section shall provide for revocation ofany certification issued underthis section ifthe department detennines, through an -:,administrative hearing conducted underTitle 63,

Chapter46b, Administrative ProceduresAct, that the AQPP: (a) knowingly ornegligently submitted false information or data as part ofan air quality permit application; (b) prepared more than three air quality pennit applications in one calendaryear in a manner that each did not substantially comply with department application requirements; (c) prepared any air quality pennit application in violation ofthe professional standards defined by department rule.



### 19-2-110 Violations

- Notice to violator

- Corrective action orders

- Conference, conciliation, and persuasion by board. (1) (a) Wheneverthe executive secretary has reason to believe that a violation ofany provision ofthis chapter or any rule issued under it has occurred, he may serve written notice ofthe violation upon the alleged violator. The notice shall specify the provision ofthis chapterorrule alleged to be violated, the facts allegedto constitute the violation, and may include an orderthat necessary corrective action be taken within a reasonable time. (b) In lieu ofbeginning an adjudicative proceeding under Subsection (I)(a), the board may initiate

an action pursuant to Section 19-2-115. (2) Nothing in this chapter prevents the board from

## ----_._--- -



# _ ..

# _-

..... 

## ­

making efforts to obtain voluntary compliance through warning, conference, conciliation, persuasion, or other appropriate means. (3) Hearings may be held before: (a) the board; (b) a hearing examiner ofthe board; or (c) a board member especially appointed by the board to hold the hearing.



### 19-2-]] 1 Review oforders ofhearing examiner­ 'r"'­**~.':** 

### Procedure. (7' 

### Any person aggrieved by an order ofa hearing examiner

## ~:' may file a motion for review ofthe order with the board. 

### i\.**~;** 

# r ]9-2-]]2 Generalized condition ofair pollution 

# It creating emergency

- Sources causing imminent 

# f" danger to health

- Powers ofexecutive directorDeclaration ofemergency. 

### (1) (a) Title 63, Chapter46b, Administrative Procedures Act, and any other provision oflaw
to the contrary notwithstanding, ifthe executive director finds that a generalized condition ofair pollution exists and that it creates an emergency requiring immediate action to protect human health or safety, the executive director, with the

concurrence ofthe governor, shall order persons causing or contributingto the air pollution to reduce or discontinue immediately the emission ofair contaminants. (b) The order shall fix a place and time, not later than 24 hours after its issuance, for a hearing to be held before the governor. (c) Notmore than 24 hours after the
commencement ofthis hearing, and without adjournment ofit, the governor shall affirm, modify, or set aside the order ofthe executive director. (2) In the absence ofa generalized condition ofair pollution referred to in Subsection 

### (1), but ifthe executive director finds that emissions from the operation ofone or more air contaminant sources is causing imminent dangerto human health or safety, he may**commenc~ ~djudicative**  

### proceedings under. Section 63-46b-20. (3) Nothing in this section limits any powerthat the governor or any otherofficerhas to declare an emergency and act on the basis ofthat declaration.



### 19-2-113 Variances

- Judicial review. (l) (a) Any person who owns or is in control ofany plant, building, structure, establishment, process, orequipment may apply to the board for a variance from its rules. Chapter2, Air Conservation Act



### (b) The board may grant the requested variance 

# - following an announced public meeting, ifit finds, after considering the endangerment to human health and safety and otherrelevant factors, that compliance with the rules from which variance is sought would produce serious hardship without equal or greaterbenefits to the public. (2) A variance may not be granted under this section until the board has considered the relative interests ofthe applicant, other owners ofpropeny likely to be affected by the discharges, and the general public. (3) Any variance orrenewal ofa variance shall be granted within the requirements ofSubsection (I) and for time periods and underconditions consistent with the reasons for it, and within the following limitations: (a) ifthe variance is granted on the grounds that there are no practicable means known or available for the adequate prevention,

->. 

### abatement, or control ofthe air pollution involved, it shall be only until the necessary

means for prevention, abatement, orcontrol become known and available, and subjectto the taking ofany substitute oralternate measures 

# - that the board may prescribe;' (b) (i) ifthe variance is granted on the grounds that compliance with the requirements from which variance is sought will require that
measures, because oftheir extent or cost, must be spread over a long period oftime, the variance shall be granted for a reasonable time that, in the view ofthe board, is required for implementation ofthe necessary measures; and (ii) a variance granted on this ground shall contain a timetable for the implementation ofremedial measures in an expeditious

manner and shall be conditioned on adherence to the timetable; or (c) ifthe variance is granted on the ground that it is necessary to relieve orprevent hardship ofa**~ind** 

### otherthan that provided for in Subsection (a) or (b), it shall not be granted for more than

one year. (4) (a) Any variance granted underthis section may be renewed on terms and conditions and for periods that would be appropriate for initially granting a variance. (b) Ifa complaint is made to the board because of the variance, a renewal may not be granted unless, following an announced public meeting,Chapter2, Air Conservation ACt



### the board finds that renewal isjustified. (c) To receive a renewal, an applicant shall submit

a request for agency action to the board requesting a renewal. (d) Immediately upon receipt ofan application for renewal, the board shall give public notice of the application as required by its rules. (5) (a) A variance orrenewal is not a right ofthe applicant orholder but may be granted at the board's discretion. (b) A person aggrieved bythe board's decision may obtainjudicial review. (c) Venue forjudicial review ofinformal adjudicative proceedings is in the district court in which the air contaminant source is situated. (6) (a) The board may review any variance during the
term for which it was granted. (b) The review procedure is the same as that for an original application. (c) The variance may be revoked upon a finding that: (i) the nature oramount ofemission has changed or increased; or (ii) iffacts existing at the date ofthe review had existed at the time ofthe original 

# ,- application, the variance would not have been granted. (7) Nothing in this section and no variance orrenewal granted pursuantto it shall be construed to prevent

or limit the application ofthe emergency provisions and procedures ofSection ]9-2-] ]2 to any person

. orproperty.

19-2-114 Activities not in violation ofchapteror rules. The following are not a violation ofthis chapter or of any rules made under it: (I) burning incident to horticultural oragricultural operations of: (a) prunings from trees, bushes, and plants; or (b) dead or diseased trees, bushes, and plants, including stubble; (2)**buming.~w~ed** 

### growth along ditch banks incident
to clearingthese-ditches for irrigation purposes;

. (3) controlled heating oforchards orothercrops to lessen the chances oftheir being frozen so long as the emissions from this heating do not vid}ate minimum standards set by the board; and (4) the controlled burning ofnot more than two structures per yearby an organized and operating fire department for the purpose oftraining fire



# - 19-2-115 Violations

- Penalties

- Reimbursement forexpenses. (I) The terms "knowingly," "willfully," and "criminal negligence" shall mean as defmed 

### in Section 76-2-103. (2) (a) Any person who violates this chapter, or any rule, order, or permit issued or adopted under this chapter is subject in a civil proceeding to a penalty not to exceed $10,000 per day for each violation. (b) Subsection (a) also applies to rules adopted under the authority ofSection 19-2-I04, for implementation of 15 U.S.C.A. 2601 etseq., Toxic Substances Control Act, Subchapter II

­ Asbestos Hazard Emergency Response. (c) Penalties assessed for violations described in 15 V.S.C.A. 2647, Toxic SubstancesControl Act, Subchapter II

- Asbestos Hazard Emergency Response, may not exceed the amounts specified in that section and shall be used in accordance with the provisions ofthat section. (1) A person is guilty ofa class A misdemeanorand is subject to imprisonment under Section 76-3-204 and

a fme ofnot more than $25,000 per day ofviolation ifthat person knowingly violates any.ofthe following underthis chapter: (a) an applicable standard or limitation; (b) a permit condition; or (c) a fee or filing requirement. (4) A person is guilty ofathird degree felony and is subject to imprisonment under Section 76-3-203 and

a fine ofnot more than $25,000 perday ofviolation 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 orapplicable rules made underthis chapter. (5) Anyfine orpenalty assessed under Subsections (2)

or (3) is in lieu ofany penalty under Section 19-2-109.1. (6) Anyperson who willfully violates Section J

### 9-2-120 is guilty ofa class A misdemeanor. (7) Any person whoknowingly violates any requirement ofan applicable implementation plan adopted bythe board, more than 30 days after having been notified in writing by the executive secretary that he is violating the requirement, or knowingly violates an order issued under**S~ction** 

### service personnel when the United States Weather 19-2-II0(1)(a)is guilty ofa third degree felony and Service clearing index is above SOD. subject to imprisonment under Section 76-3-203 andChapter2, Air Conservation Act



### Subsections (c) and (d), if: (A) the defendant's conduct placed another person in imminent danger ofdeath or serious bodily injury; and (8)the defendant was aware ofor 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 provethat the defendant possessed actual knowledge, including evidence thatthe

;

# .. defendant took affinnative steps to be



## ..... '**~.** 

### shielded from receivingrelevant infonnation. 

### (f) (i) It is an affinnative defense to prosecution under 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 (8)medical treatment or medical or scientific experimentation conducted by professionally approved methods and the other person was aware ofthe risks involved priorto giving consent. (ii) The defendanthas the burden ofproofto establish any affirmative defense underthis Subsection 

### (f) and must prove that defense

i**.~** .. 

### by a preponderance ofthe evidence. (9) (a) Except as provided in Subsection (b), and unless prohibited by federal law, all penalties assessed and collected underthe authority of this section shall be deposited in the General Fund. (b) The department may reimburse itselfand local governments from monies collected from civil penalties for extraordinary expenses incurred in environmental enforcement activities

.

. (c) The department shall regulate reimbursements by making rules that: (i)define qualifying environmental i 

## /ij 

### enforcement'activities; and (ii) define qualifying extraordinary expenses.

Amendedbych. 271. § 1. 1998 GeneralSession.

i I**.~** .Chapter2.Air Conservation Act



### 19-2-116 Injunction or other remedies to prevent ° 

### violations

- Civil actions not abridged. (I) Action under Section 19-2-115 

### does not bar enforcement ofthis chapter, orany ofthe rules adopted under it orany orders made under it by injunction or other appropriate remedy. The board has the powerto institute and**m~jntain** 

### in the narne ofthe state any and all enforcement proceedings. (2) This chapterdoes not abridge, limit, impair, create, enlarge, orotherwise affect substantively or procedurallythe right ofany person to damages or

°

### otherreliefon account ofinjury to persons or property and to maintain any action orother appropriate proceeding for this purpose. (3) (a) In addition to any otherremedy created in this chapter, upon failure ofany person to comply with any provision ofthis chapter or any rule adopted under it or any final ordermade by the board, the executive secretary, orthe executive director and when it appears necessary for the protection ofhealth and welfare, the board may initiate through its executive secretary an action for appropriate injunctive relief. (b) The attorney general shall bring injunctive

0 

### reliefactions on request.

0 

### (c) A bond is not required.

19-2-117 Attorney general as legal advisor to board

- Duties ofattorney general and county attorneys. (1) The attorney general is the legal advisor to the board and its executive secretary and shall defend them orany ofthem in all actions or proceedings brought against them orany ofthem. (2) The county attorney in the county in which a cause ofaction arises may, upon request ofthe board or its executive secretary, bring any action, civil or criminal, to abate? condition which exists in violation of, orto prosecute for the violation ofor to enforce, this chapter orthe standards, orders, or rules ofthe board or the executive secretary issued underthis chapter. (3) The board or its executive secretary may bring any action and be represented by the attorney general. (4) In the event any person fails to comply with a cease and desist ord,er 9fthe board orits executive

0 

### secretarythat is not subjectto a stay pending administrative orjudicial review, the board may, through its executive secretary, initiate an action for, and is entitled to, injunctive reliefto prevent any further or continued violation ofthe order.

19-2-118 Violation ofinjunction evidence of contempt

. 

### .­ Failure to comply with the tenns ofany injunction issued under this chapter is prima facie evidence ofcontempt which is punishable as for other civil contempts.

19-2-119 Civil or criminal remedies not excluded ­ Actionable rights under chapter

- No liability for
acts ofGod or other catastrophes. (1) Existing civil or criminal remedies for any wrongful action which is a violation ofany part ofthe law are not excluded by this chapter. (2) Persons otherthan the state orthe board do not acquire actionable rights by virtue ofthis chapter. (3) The liabilities imposed for violation ofthis chapter

are not imposed for any violation caused by an act ofGod, war, strike, riot, orothercatastrophe.

19-2-120 Information**req~ired** 

### ofowners or operators ofair contaminant sources. The owner or operator ofany stationary air contaminant

source in the state shall furnish to the board the reports required under Section 19-2-104 

### and any other information the board finds necessary to determine .whetherthe 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 ofthe department.



## -
. 

### 19-2-121 Ordinances ofpolitical subdivisions authorized. Any political subdivision ofthe state may enact and enforce ordinances to control airpollution that are consistent with this chapter.

19-2-122 Cooperative agreements between political subdivisions and department. (1) Any political subdivision ofthe state may enter into and perform with otherpolitical subdivisions ofthe
state or with the department contracts and agreements as they find proper for establishing, planning, operating, and financing air pollution programs. (2) The agreements may provide for an agency to: (a) supervise and operate an air pollution program; (b) prescribe, subject to the approval ofthe board, the agency's powers and duties; and (c) fix the compensation ofthe agency's members and employees.

19-2-123 Tax reliefto encourage investment in facilities

- Sales and use tax exemption. (I) It is in the public interest ofthe state to encourage, through tax reIief, investment in pollution control


# \ 5

# j

### and pollution elimination facilities while at the same time making and keeping the state an attractive location for continued industrial development, including the expansion ofexisting plants, thereby increasing employment and payrolls and upgrading the natural resources ofthe state. (2) All materials and equipment purchased, leased, or otherwise procured and services utilized for the construction or installation in a pollution control facility are exempt from sales and use taxes imposed by Title 59, Chapter 12, Sales and Use Tax Act, upon obtaining a certification ofpollution control facility from the board.

19-2-124 Application for certification ofpollution control facility. (I) A person who qualifies under Subsection (2) may apply to the board for certification ofa pollution control facility or facilities erected, constructed, or installed, orto be erected, constructed, or installed in the state after December 31, 1972, or on or before January 31, 1985, and afterJune 30, 1986, and before July 1, 1999. An application may be filed at any time after a finn construction contract has been entered orconstruction has commenced. (2) (a) A person who applies under Subsection (1) shall be the owner ofa trade orbusiness that

uses property in the state requiring a pollution control facility to prevent orminimize pollution

or a person who, as a lessee orpursuant to an agreement, conducts the trade orbusiness that operates oruses the property. (b) The facility shall be owned, operated, or leased during a part ofthe tax year in which the exemption is claimed. (c) An exemption may be claimed only in those tax 

### years that begin on or afterJanuary I, 1973, and on or before January 31, 1985, and after June 30, 1986, and beforeJuly I, 1999. (d) As used in this subsection, "owner" includes a contract purchaser. (3) (a) Each application shall be in writing on a form prescribed bythe board, contain a description ofthe facilities and materials incorporated in them, the machinery and equipment, the
, existing or-proposed operational procedure, and

a statement ofthe purpose ofpollution prevention, control, or reduction served orto be served by the facility. (b) The board may require any further infonnation it find's necessary before issuance ofa certificate. Chapter 2, Air Conservation Act



### 19-2-125 Action on application for certification. (1) (a) Ifthe board, after consulting with the State Tax Commission, finds that a pollution control 

# ­ facility or a part ofa po)Jution control facility, for which application is made under Section 19-2-124 was or is to be erected, constructed, acquired, or installed after December 31, 1972,

on orbefore January 31, 1985, and after June 30, 1986, and before July I, 1999, and is designed and is being operated orwiJl operate primarily to prevent, control, orreduce air or water poJ]ution, and that the applicant qualifies under Section 19-2-124, the board shall certify the facility. (b) Ifone ormore facilities constitute an operational unit. the board may certify those facilities under one certificate. (2) (a) The board and the State Tax Commission shall
act on an application under Section 19-2-124 before the 120th day after filing. (b) Failure ofthe board and the State Tax Commission to timely act constitutes automatic acceptance ofthe application and the board shall furnish a certificate to the applicant on demand.

19-2-126**Rev~cation** 

### of**c~rtification** 

### - Grounds

­ Procedure. 

### (l) (a) The board, after consulting with the State Tax Commission, may revoke the certification issued under Section 19-2-125 ofany pollution control facility ifit finds thatthe: (i) certification was obtained by fraud orgross misrepresentation; or (ii) holder ofthe certificate has failed substantially to operatethe facility for the purpose of, and to the extent necessary to prevent, control, orreduce airorwater pollution as specified in the certificate. (b) A shutdown ofthe facility due to force majeure, including obsolescence, is not cause to revoke certification ofany facility. (2) (a) The board shall provide notice ofthe revocation by issuing a notice ofagency action. (b) The holder ofthe certificate may obtainjudicial review ofthe revocation. (c) The revocation is final and conclusive unless an appeal is taken. (d) Ifthe revocation is affinned on appeal, revocation is final on the date notice of revocation was received by the holder. (3) As soon as a revocation underthis section is final, the board shall notify the State Tax Commission of


# I 

# It, \Chaprtr 2, A

....**Cons~tioG** Ad

the revocation. (4) (a) Ifthe certification ofa pollution control faciliry is revoked, all prior tax reliefprovided to the holderbecause ofthe certificate is forfeited. (b) The State Tax Commission shall collect taxes
not paid by the holde(' because ofthe tax relief provided the holder to the extent permined by the applicable statute oflimitations.



### 19-2-127 Rules for administering certification for tax 

### relief. In addition to the powers granted it, the board may fonnulate, amend, or cancel rules establishing procedures for processing and evaluating applications for cenification, establishing procedures for the issuance and revocation ofcertificates, and all other maners pertaining to the board in administering certification for
tax reliefon pollution control facilities.



# -

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### i
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### :
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# \1 

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i' 

# I

### Utah Administrative Rulemaking Act UTAH CODE Title 63, Chapter46a (1998) Including changes made during the 1998 General Session

63-46a-1. Short title. This act is known as the "Utah Administrative Rulemaking Act." (as enacted by 1985 Utah Laws 158)

63-46a-2. Definitions. As used in this chapter: (l) "Administrative record" means information an agency relies upon when making a rule under this chapter including copies of: (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 ofthe public comment; and (e) the agency's report ofits decision-making process. (2) "Agency" means each state board, authority, commission, institution, department, division, officer, or other
state government entity otherthan the Legislature, its committees, the political subdivisions ofthe state, orthe courts, which is authorized orrequired by law to make rules, adjudicate, grant or withhold licenses, grant or withhold relieffrom legal obligations, orperform other similar actions orduties delegated by law. (3) "Bulletin" means the Utah StateBulletin. (4) "Catchline" means a short summary ofeach section, part, rule, ortitle ofthe code that follows the section, part, rule,

ortitle reference placed before the text ofthe rule and serves the

same function as boldface in legislation as described in Section 68-3-13. (5) "Code" means the body ofall effective rules as compiled and organized by the division and entitled "Utah Administrative Code." (6) "Director" means the director ofthe Division of Administrative Rules. (7) "Division" means the Division ofAdministrative Rules. (8) "Effective" means operative and enforceable. (9) (a) "File" means to submit a document to the division

as prescribed by this chapter. (b) "Filing date" means the day and time the document is recorded as received by the division. (lO) "Interested person" means any person affected by or interested in a proposed rule, amendment to an existingrule, or a nonsubstantive change made under Section 63-46a-lO. (11) "Order" means an agency action that determines the legal rights, duties, privileges, immunities, orotherinterests of

one ormore specific persons, but not a class ofpersons. (12) "Person" means any individual, partnership, corporation, association, governmental entity, orpublic orprivate organization ofany characterotherthan an agency. (13) (a) "Policy" means a statement applying to persons or agencies that: (i) broadly prescribes a future course ofaction, guidelines, principles, orprocedures; or (ii) prescribes the internal management ofan agency. (b) A policy is a rule ifit conforms to the definition of

a rule. (14) "Publication" means making a rule available to the public by printing the rule or a summaryofthe rule in the bulletin. (15) "Publication date" means the inscribed date ofthe bulletin. (16) (a) "Rule" means an agency's written statement that: (i) is explicitly or implicitly required by state or federal statute orother applicable law; (ij) has the effect oflaw; (iii) implements orinterprets a state or federal legal mandate; and (iv) applies to a class ofpersons oranother agency. (b) "Rule" includes the amendment orrepeal ofan existing rule. (c) "Rule" does not mean: (i) orders; (ii) unenforceable policies; (iii) internal management policies ofthe agency that do not restrict the legal rights ofa class ofpersons
or another agency; (iv) the governor's executive orders or proclamations; 

# ­ (v) opinions issued by the attorney general's office; (vi) declaratory rulings issued by the agency according to the provisions ofSection 63-46b-21 except as required by Section 63-46a-3; or (vii) rulings by an agency in adjudicative proceedings, except as required by Subsection 63-46a3 (6). (17) "Rule analysis" means the format prescribed by the division to summarize and analyze rules. (18) "Substantivechange" means a change in a rule that affects the application or results ofagency actions. (as last amended by 1996 Utah Laws 60)

63-46a-3. Whenrulemakingis required. (1) Each agency shall: (a) maintain a complete copy ofits current rules; and (b) make it available to the public for inspection during its regularbusiness hours. (2) In addition to other rulemaking required by law, each agency shall make rules when agency action: (a) authorizes, requires, orprohibits an action; (b) provides or prohibits a material benefit; (c) applies to a class ofpersons oranother agency; and (d) is explicitly orimplicitly authorized by statute. (3) Rulemaking is also required when an agency issues a written interpretation ofa state orfederal legal mandate. (4) Rulemaking is not required when:

# -- UTAH CODE Title 63, Chapter46a (1998) Utah Administrative Rulemaking Act

(a) agency action applies only to internal agency management, inmates or residents ofa state correctional, diagnostic, ordetention facility, persons under state legal custody, patients admitted to a state hospital, members of the state retirement system, orstudents enrolled in a state education institution; (b) a standardized agency manual applies only to internal fiscal oradministrative details ofgovernmental entities supervised under statute; (c) an agency issues policy orother statements that are advisory, informative, ordescriptive, and do not conform to the requirements ofSubsections (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 rule shall enumerate any penalty authorized by statute that may result from its violation. (6) Each agency shall enact rules incorporating the principles oflaw 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 ofanothercode, rule, or regulation that has been adopted by a federal agency,
an agency orpolitical subdivision ofthis state, an agency ofanother state, orby 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, orsimilar 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 detennines 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 incorporatedby reference; (iii) state the date, issue, orversion ofthe 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 ofthis chapter. (d) The agency shall maintain a complete and current copy ofthe referenced material available for public inspection at the agency and at the division. (8) (a) This chapteris not intended to inhibit the exercise ofagency discretion within the limits prescribed by statute

oragency rule. (b) An agency may enact a rule creating ajustified exception to a rule. (9) An agency may obtain assistance from the attorney general to.ensure that its rules meet legal and constitutional requirements. (as last amended by 1998 Utah Laws 332 (S.B. 86), effective July I, 1998)

63-46a-4. Rulemaking procedure. (I) Except as provided in Sections 63-46a-6 and 63-46a-7, when making, amending, or repealing a rule agencies shall comply with: (a) the requirements ofthis section; (b) consistent procedures required by other statutes; (c) applicable federal mandates; and (d) rules made by the division to implement this chapter. (2) Subject to the requirements ofthis chapter, each agency shall develop and use flexible approaches in drafting rules that
meet the needs ofthe agency and that involve persons affected by the agency's rules. (3) (a) Each agency shall file its proposed rule and rule analysis with the division. (b) (i) Rule amendments shall be marked with new language underlined and deleted language struck out. (ii) Alternatively, the repeal ofan entire rule may be indicated by annotating the rule "repealed in its entirety" prominently on every page. (c) (i) The division shall publish the information required under Subsection (3) on the rule analysis and the text ofthe proposed rule in the next issue ofthe bulletin. (ii) Forrule amendments, onlythe section or subsection ofthe rule being amended need be printed. (iii) Ifthe 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. (4) Priorto filing a rule with the division, the department head shall consider and comment on the fiscal impact a rule may have on businesses. (5) The rule analysis shall contain: (a) a summary ofthe rule orchange; (b) the purpose ofthe rule orreason for the change; (c) the statutory authority orfederal requirement for the rule; (d) the anticipated cost orsavings to: (i) the state budget; Oi) local governments; and (iii) otherpersons; (e) the compliance cost for affected persons; (f) how interested persons may inspect the full text of the rule; (g) how interested persons may presenttheir views on the rule; (h) the time and place ofany scheduled public hearing; (i) the name and telephone number ofan agency employee who may be contacted about the rule; U) the name ofthe agency head ordesignee who authorized the rule; (k) the date on which the rule may become effective following the public comment period; and

2Utah Administrative Rulemaking Act UTAH CODE Title 63, Chapter46a (1998)

(1) comments by the department head on the fiscal impact the rule may have on businesses. (6) (a) For a rule being repealed and reenacted, the rule analysis shall contain a summary that generally includes the following:(i) a summary ofsubstantive provisions in the repealed rule which are eliminated from the enacted rule; and (ii) a summary ofnew substantive provisions appearing only in the enacted rule. (b) The summary required under this subsection is to aid in review and may not be used to contest any rule on the ground ofnoncompliance with the procedural requirements ofthis chapter. (7) A copy ofthe rule analysis shall be mailed to all persons who have made timely request ofthe agency for advance notice ofits rulemaking proceedings and to any other person who, by statutory orfederal mandate or in thejudgment ofthe agency, should also receive notice. (8) Following the publication date, the agency shall allow at least 30 days for public comment on the rule. (9) (a) Except as provided in Sections 63-46a-6 and 63­ 46a-7, a proposed rule becomes effective on any date specified by the agency that is no fewer than 30 nor more than 120 days after the publication date. (b) The agency shall provide notice ofthe rule's effective date to the division in the form required by the division. (c) The notice ofeffective date may not provide for an effective date prior to the date it is received by the division. (d) Thedivision shall publish notice ofthe effective date ofthe rule in the next issue ofthe bulletin. (e) A proposed rule lapses ifa notice ofeffective date

or a change to a proposed rule is not filed with the division within 120 days ofpublication. (as last amended by 1998 Utah Laws 219 (S.B. 88), effective May4, 1998)

63-46a-5. Publichearings. (1) Each agency may hold a public hearing on a proposed rule, amendment to a rule, orrepeal ofa rule during the public
comment period. (2) Each agency shall hold a public hearing on a proposed rule, amendment to a rule, orrepeal ofa rule if: (a) a public hearing is required by state or federal mandate; (b) (i) another state agency, ten interested persons, or
an interested association having not fewer than ten members request a public hearing; and (ii) the agency receives the request in writing not

more than 15 days after the publication date ofthe 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 30days after receipt ofthe request for hearing. (as last amended by 1987 Utah Laws 241)

63-46a-6. Changes in rules. (1) (a) To change a proposed rule already published in the bulletin, an agency shall file with the division: (i) a copy ofthe changed rule; and (ii) a rule analysis containing a description ofthe change and the information required by Section 63­ 46a-4. (b) A change to a proposed rule may not be filed more than 120 days after publication ofthe 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 ofthe last change in proposed rule. (e) A changed proposed rule and its associated proposed rule lapse ifa notice ofeffective date or another change to a proposed rule is not filed with the division within 120 days ofpublication ofthe last change in proposed rule. (2) Ifthe rule change is nonsubstantive: (a) the agency need not comply with the requirements ofSubsection (1); and (b) the agency shall notify the division ofthe change in writing. (3) Ifthe rule is effective, the agency shall amend the rule according to the procedures specified in Section 63-46a-4. (as last amended by 1996 Utah Laws 60)

63-46a-7. Exceptions to rulemaking procedure. (1) All agencies shall comply with the rulemaking procedures ofSection 63-46a-4 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 offederal orstate 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) a copy ofthe rule; and (ii) a rule analysis that includes the specific

reasons andjustifications for its findings. (b) The division shall publish therule in the bulletin as provided in Subsection 63-46a-4(3). (c) The agency shall notify interested persons as provided in Subsection 63-46a-4(7). (d) The rule becomes effective for a period not exceeding 120 days on the date offiling orany later date designated in the rule. (3) Ifthe agency intends the rule to beeffective beyond 120 days, the agency shall also comply with the procedures ofSection 63-46a-4. (as last amended by 1998 Utah Laws 219 (S.B. 88), effective May4, 1998)

63-46a-8. (repealed by 1992 Utah Laws 146)

63-46a-9. Agency review ofrules

-- Schedule offilings

-­ Limited exemption for certain rules. (1) Each agency shall review each ofits rules within five years ofthe rule's original effective date or within five years of

3UTAH CODE Title 63, Chapter46a (1998) Utah Administrative Rulemaking Act

the filing ofthe last five-year review, whicheveris later. Rules effective priorto 1992 need not be reviewed until 1997. (2) An agency may consider any substantial review ofa rule to be a five-year review. Ifthe agency chooses to consider a review a five-year review, it shall follow the procedures outlined in Subsection (3). (3) At the conclusion ofits review, the agency shall file a notice ofreview on orbefore the anniversary date indicating its intent to continue, amend, orrepeal the rule. (a) Ifthe agency continues the rule, it shall file a statement which includes: (i) a concise explanation ofthe particular statutory provisions under which the rule is enacted and how these provisions authorize orrequire the rule; (ii) a summary ofwritten comments received during and since the last five-year review ofthe rule from interested persons supporting oropposing the rule; and (iii) a reasonedjustification for continuation of the rule,

### in~luding reasons why the agency disagrees with comments in opposition to the rule, ifany. (b) Ifthe agency repeals the rule, it shall comply with Section 63-46a-4. (c) Ifthe agency amends and continues the rule, it shall comply with the requirements ofSection 63-46a-4 and file the statement required in Subsection (3)(a). (4) (a) The division shall publish the notice and statement in the bulletin. (b) The division may schedule the publication of agency notices and statements, provided that no notice and statement shall be published more than one year after the review deadline established under Subsection (1). (5) The division shall notify an agency ofrules due for review at least 180 days prior to the anniversary date. (6) Ifan agency finds that it will not meet the deadline established in Subsection (l): (a) the agency may file an extension prior to the anniversary date with the division indicating the reason for the extension; and (b) the division shall publish notice ofthe extension in the next issue ofthe bulletin. (7) An extension permits the agency to file a notice no more than 120 days afterthe anniversary date. (8) Ifan agency fails to file a notice ofreview orextension

on orbefore the date specified in the notice mandated in Subsection (5), the division shall: (a) publish a notice in the next issue ofthe bulletin that the rule has expired and is no longerenforceable; (b) remove the rule from the code; and (c) notify the agency that the rule has expired. (9) After a rule expires, an agency must comply with the requirements ofSection 63-46a-4 to reenact the rule. (l0) (a) Rules issued under the following provisions related to the Department ofWorkforce Services orLabor Commission that are in effect on July 1,1997, are not subject to the requirements ofthis section until July I, 1998: (i) Title 34, Laborin General; (ii) Title 34A, Utah LaborCode; (iii) Title 35A, Utah Workforce Services Code; (iv) Title 40, Chapter 2, Coal Mines; and (v) Title 57, Chapter 21, Utah Fair Housing Act. (b) Any rule described in Subsection (I0)(a) that would have expired on or after July I, 1997 but before July I, 1998, expires July I, 1998, unless for that rule the Department ofWorkforce Services orLaborCommission files: (i) the notice ofreview, described in Subsection (3); or (ii) an extension described in Subsection (6). (as last amended by 1998 Utah Laws 13 (S.B. J25), effective May4, 1998: and 1998 Utah Laws 332 (S.B. 86), effective July I, 1998)

63-46a-9.5. Division ofAdministrative Rules created

-­ Appointment ofdirector. (I) There is created within the Department of Administrative Services the Division ofAdministrative Rules, to be administered by a director. (2) The directorofadministrative rules shall be appointed by the executive director with the approval ofthegovernor. (as enacted by 1987 Utah Laws 241)

63-46a-9.6. UtahAdministrative Code

-- Organization

-­ Official compilation. (l) 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 numberindicating 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 ofa rule, the latest effective version on file with the division is considered the correct, current version. (as last amended by 1996 Utah Laws 60)

63-46a-l0. Division ofAdministrativeRules

-- Duties generally, (1) The Division ofAdministrativeRules shall: (a) establish all filing, publication, and hearing procedures necessary to make rules under this chapter; (b) record in a register the receipt ofall agency rules, rule analysis fonns, and notices ofeffective dates; (c) make the register, copies ofall 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 ofany proposed rule that the director determines is too long to print ortoo expensive to publish by reference to a copy on file; (e) compile, format, number, and index all effective rules in an administrative code, and periodically publish that code and supplements or revisions to it; (0 publish a digest, at least monthly, summarizing all rules and notices printed in the most recent bulletin;

4

## ~\Utah Administrative Rulemaking Act UTAH CODE Title 63, Chapter46a (1998)

(g) publish at least annually an index ofall changes to the administrative code and the effective date ofeach change; (h) print, orcontract to print, all rulemaking publications the division determines necessary to implement this chapter; (i) distribute without charge copies ofthe bulletin and administrative code to state-designated repositories, the Administrative Rules Review Committee. the Officeof Legislative Research and General Counsel, and the two**hous~s** ofthe Legislature; (j) distribute without charge copies ofthe digest and index to state legislators, agencies, political subdivisions on request, and the Office ofLegislative Research and General Counsel; (k) distribute, at prices covering all costs, all rulemaking publications to all otherrequesting persons and agencies; (I) provide agencies assistance in rulemaking; and (m) administer this chapterand 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 orcode by: (a) implementing a uniform system offormatting. 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 ofeach section, part, rule, or title; (d) updating orcorrecting annotations associated with

a section, part, rule, ortitle; and (e) merging ordetermining priority ofany amendment, enactment, orrepeal to the samerule orsection made effective by an agency. (3) In addition, the division may make the following nonsubstantive changes with the concurrence ofthe agency: (a) eliminate duplication within rules; (b) eliminateobsolete and redundant words; and (c) correctingdefective or inconsistent section and paragraph structure in arrangement ofthe subject matter of rules. (4) For nonsubstantive changes made in accordance with Subsection (2) or (3) after publication ofthe rule in the bulletin, the division shall publish a list ofnonsubstantive changes in the bulletin. For each nonsubstantive change, the list shall include: (a) the affected codecitation; (b) a briefdescription ofthe change; and (c) the date the change was made. (5) All funds appropriated orcollected for publishing the division's publications shall be nonlapsing. (as last amended by 1996 Utah laws 60)

63-46a-10.5. Repeal and reenactmentofUtah Administrative Code. (I) When the directordetermines 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 ofthis section. (2) The division may: (a) reorganize, reformat, and renumber the code; (b) require each agency to review its rules and make any organizational orsubstantive changes according to the requirements ofSection 63-46a-6; and (c) require each agency to prepare a briefsummaryof all substantive changes made by the agency. (3) The division may make nonsubstantive changes in the code by: (a) adopting a uniform system ofpunctuation, capitalization, numbering, and wording; (b) eliminating duplication; (c) correctingdefective orinconsistent section and paragraph structure in arrangement ofthe subject matter of rules; (d) eliminating all obsolete or redundant words; (e) correcting obvious errors and inconsistencies in punctuation, capitalization, numbering. referencing, and wording; (0 changing a catchline to more accurately reflect the substance ofeach section, part, rule, ortitle; (g) updating orcorrecting annotations associated with

a section. part, rule, ortitle; and (h) merging ordetermining priorityofany amendment, enactment, orrepeal 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 ofthe code reenactment; (ii) the date, time, and place ofa public hearing where members ofthe public may comment on the proposed reenactment ofthe code; (iii) locations where the proposed reenactment of the code may be inspected; and (iv) agency summaries ofsubstantive 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 copies oftheirreenacted rules available for public inspection during regularbusiness hours; and (ii) comply with the requirements ofSubsection 63-46a-4(7). (5) The division shall hold a public hearing on the proposed code reenactment no fewer than 30days nor more than 45 days after the publication required by Subsection (3)(a). (6) The division shall distribute complete copies ofthe proposed code reenactment without charge to: (a) state-designated repositories in Utah; (b) the Administrative Rules Review Committee; and (c) the Office ofLegislative 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 normore than 90days after the publication 

# - date required by this section.

5UTAH CODE Title 63, Chapter 46a (1998) Utah Administrative Rulemaking Act

(8) Repeal and reenactment ofthe code meets the requirements ofSection 63-46a-9 for a review ofall agency rules. (as last amended by 1998 Utah Laws 219 (5.B. 88), effective May 4, 1998)

63-46a-11. Administrative Rules Review Committee. (I) (a) There is created an Administrative Rules Review Committee often permanent members and four ex officio members. (b) (i) The committee's permanent members shall be composed offive members ofthe Senate, appointed by the president ofthe Senate, and five members ofthe House, appointed by the speakerofthe House, with no
more than three senators and three representatives from the same political party. (ii) The permanent members shall convene at least

once each month as a committee to review new agency rules, amendments to existing agency rules, and repeals ofexisting agency rules. Meetings may be suspended at the discretion ofthe committee chairs. (iii) Members shall serve for two-year terms or until their successors are appointed. (iv) A vacancy exists whenever a committee member ceases to be a member ofthe Legislature, or when a memberresigns from the committee. Vacancies shall be filled by the appointing authority, and the replacement shall serve out the unexpired term. (c) When the committee reviews existing rules, the committee's permanent members shall invite the Senate and House chairmen ofthe standing committee and the Senate and House chairmen ofthe appropriation subcommittee that havejurisdiction over the agency whose existing rules are being reviewed to participate as nonvoting, ex officio members with the committee. (d) Three representatives and three senators from the permanent members are a quorum for the transaction of business at any meeting. (2) Each agencyrule as defined in Section 63-46a-2 shall be submitted to the committee at the same time public notice is given under Section 63-46a-4. (3) (a) The committee shall exercise continuous oversight ofthe process ofrulemaking. (b) The committee shall examine rules submitted by each agency to determine: (i) whetherornot they are authorized by statute; (ii) whether or not they comply with legislative intent; (iii) their impact on the economy and the government operations ofthe state and local political subdivisions; and (iv) their impact on affected persons. (c) To carry out these duties, the committee may examine any other issues that it considers necessary. The committee may also notify and refer rules to the chairmen of the interim committee which hasjurisdiction over a particular agency when the committee determines that an issue involved in an agency's rules may be more appropriately addressed by that committee. (d) In reviewing the rules, the committee shall follow generally accepted principles ofstatutoryconstruction. (4) The committee may request that the Office ofthe Legislative Fiscal Analyst prepare a fiscal note on any rule. (5) In order to accomplish its oversight functions, the committee has all the powers granted to legislative interim committees as set forth in Section 36-12-11. (6) (a) The committee may prepare written findings ofits review ofeach rule and may include any recommendations, including legislative action. (b) The committee shall provide to the agency that enacted the rule: (i) a copy ofits findings, ifany; and (ii) a request that the agency notify the committee ofany changes it makes in the rule. (c) The committee shall provide a copyofits findings
to any member ofthe Legislature and to any person affected by the rule who requests a copy. (d) The committee shall provide a copy ofits findings to the presiding officers ofboth the House and the Senate, Senate and House chairmen ofthe standing committee, and the Senate and House chairmen oftheAppropriation Subcommittee that havejurisdiction over the agency whose rules are the subject ofthe findings. (7) (a) The committee may submit a report on its review of state agency rules to each memberofthe Legislature ateach regular session. (b) The report shall include: (i) the findings and recommendations made by the committee under Subsection (6); (ii) any**a~tion** taken by an agency in response to committee recommendations; and (iii) any recommendations by the committee for legislation. (as last amended by 1998 Utah Laws 332 (S.B. 86), effective July I. 1998)

63-46a-11.5. Legislative reauthorization ofagency rules

-­ Extension ofrules by governor. (1) All grants ofrulemakingpowerfrom 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 onFebruary 28 ofany calendar year expires on May 1 ofthat year unless it has been reauthorized by the Legislature. (b) Notwithstandingthe provisions ofSubsection (2)(a), an agency's rules do not expire if: (i) the rule is explicitly mandated bya federal law

orregulation; or (ii) a provision ofUtah'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 ofUtah state agencies are reauthorized except for the following:". (c) Before sending the legislation to the governor for his action, the Administrative Rules Review Committee may send a letter to the governor and to the agencyexplaining

6Utah Administrative Rulemaking Act UTAH CODE Title 63, Chapter46a (1998)

specifically why the committee believes any rule should not be reauthorized. (d) Forthe purpose ofthis section, the entire rule, a single section, or any complete paragraph ofa rule may be excepted for reauthorization in the omnibus legislation considered by the Legislature. (4) The Legislature's reauthorization ofa rule by legislation does not constitute legislative approval ofthe rule, nor is it admissible in any proceeding as evidence oflegislative intent. (5) (a) Ifan agency believes that a rule that has not been reauthorized by the Legislature orthat 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 ofits authority to make the rule. (c) (i) Ifthe governor finds that the necessity does exist, and that the agency has the authority to make the rule, he may declare the rule to be extended by publishing that declaration in the Administrative Rules Bulletin on orbefore April 15 ofthat year. (ii) The declaration shall set forth the rule to be extended, the reasons the extension is necessary, and a citation to the source ofthe agency's authority to make the rule. (d) Ifthe omnibus bill required by Subsection (3) fails to pass both houses ofthe Legislature oris found to have a technical legal defect preventing reauthorization of administrative rules intendedto be reauthorized bythe Legislature, the governor may declare all rules to be extended by publishing a single declaration in the Administrative Rules Bulletin on orbefore June 15 without meeting requirements ofSubsections (5)(b) and (c). (as last amended by 1998 Utah Laws 332 (S.B. 86), effective July I, 1998)

63-46a-12. Interested parties. (I) An interested person may petition an agency requesting the making, amendment, orrepeal ofa rule. (2) Thedivision shall prescribe by rule the form for petitions and the procedure for their submission, consideration, and disposition. (3) A statement shall accompany the proposed rule, or amendment orrepeal ofa rule, demonstrating that the proposed action is within thejurisdiction ofthe agency and appropriate to the powers ofthe agency. (4) Within 30days after submission ofa petition, the agency shall eitherdeny the petition in a writing stating its

reasons for the denial, or initiate rulemaking proceedings in accordance with Section 63-46a-4. (as last amended by 1987 Utah Laws 241)

63-46a-12.1. Judicialchallenge to administrative rules. (I) (a) Any person aggrieved by a rule may obtainjudicial review ofthe 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 63-46a-3 may obtainjudicial review of the agency's failure to comply by filing a complaint with the clerk ofthe district court where the person resides orin the district court in Salt Lake County. (2) (a) Except as provided in Subsection (b), a person seekingjudicial review under this section shall exhaust his administrative remedies by complying with the requirements ofSection 63-46a-12 before filing the complaint. (b) When seekingjudicial review ofa rule, the person need not exhaust his 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 ofthat statute from compliance with Section 63-46a-12; or (iii) compliance with Section 63-46a-12 would

cause the person irreparable hann. (3) (a) Besides the information required bythe Utah Rules ofCivil Procedure, a complaint filed under this section shall contain: (i) the name and mailing address ofthe plaintiff; (ii) the name and mailing address ofthe defendant agency; (iii) the name and mailing address ofany other partyjoined in the action as a defendant; (iv) a copy ofthe rule orproposed rule, ifany; (v) an allegation that he has eitherexhausted the 

# - administrative remedies by complying with Section 63­ 46a-12 ormet the requirements for waiver of exhaustion ofadministrative remedies established by Subsection (2)(b); (vi) the reliefsought; and (vii) factual and legal allegations supporting the reliefsought. (b) (i) The plaintiffshall serve a summons and a copy ofthe complaint as required by the Utah Rules ofCivil Procedure. (ii) The defendants shall file a responsive pleading as required by the Utah Rules ofCivil Procedures. (iii) The agency shall file the administrative record ofthe rule, ifany, with its responsive pleading. (4) The district court may grant reliefto the petitioner by: (a) declaring the rule invalid, ifthe 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 ofthe 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 properrulemaking procedures orfurther fact-finding;

7UTAH CODE Title 63, Chapter46a (l998) Utah Administrative Rulemaking Act

(d) ordering the agency to comply with Section 63­ 46a-3; (e) issuing ajudicial stay or injunction to enjoin the agency from illegal action or action that would cause irreparable harm to the petitioner; or (f) any combination ofSubsections (a) through (e). (5) ]fthe plaintiffmeets the requirements ofSubsection (2)(b) the district court may review and act on a complaint under this section whether ornot the plaintiffhas requested the agency review under Section 63-46a-12. (as enacted by 1990 Utah Laws 224)

63-46a-13. (repealed by 1990 Utah Laws 224)

63-46a-14. Time for contesting a rule

-- Statute oflimitations. (1) A proceeding to contest any rule on the ground of noncompliance with the procedural requirements ofthis chapter shall commence within two years ofthe effective date ofthe rule. (2) A proceeding to contest any rule on the ground ofnot being supported by substantial evidence when viewed in light of the whole administrative record shall commence within four years ofthe effective date ofthe challenged action. (3) A proceeding to contest any rule on the basis that a change to the rule made under Subsection 63-46a-1O(2) or (3) substantively changed the rule shall becommenced within two years ofthe date the change was made. (as last amended by 1998 Utah Laws 332 (S.B. 86), effective July 1, 1998)



# - 63-46a-16. Utah Administrative Code as official compilation ofrules

-- Judicial notice. The code shall be received byall thejudges, public officers, commissions, and departments ofthe state government as evidence ofthe administrative law ofthe state ofUtah and as an authorized compilation ofthe administrative law ofUtah. All courts shall takejudicial notice ofthe code and its provisions. (as last amended by 1992 Utah Laws 261)

8

### ADMINISTRATIVE SERVICES

R15. Administrative Services, Administrative Rules. RI5-1. Administrative Rule Hearings. RI5-1-1. Authority. ( 1) Thisrule establishes procedures and standards for administrative rule hearings as required by Subsection 63­ 46a-1D(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.

RI5-I-2. Definitions. (1) Terms used in this rule are defined in Section 63-46a-2.(2) In addition: (a) "hearing" means an administrative rule hearing; and (b) "officer" means an administrative rule hearing officer.

RI5-I-3. Purpose. (1) The purpose ofthis rule is to provide: (a) procedures for agency hearings on proposed administrative rules orrules changes, or on the need for a rule

orchange; (b) opportunity for public comment on rules; and (c) opportunity for agency response to public

concerns about rules.

RI5-I-4. When Agencies Hold Hearings. (l) Agencies shall hold hearings as required by Subsection 63-46a-5(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 Title63, Chapter46a, to promote public input prior to a rule's publication; (c) during a regular orextraordinary meeting ofa stateboard, council, orcommission, in order to avoid separate and additional meetings; or (d) to hearany public petition for a rule change as provided by Section 63-46a-12. (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 ofstate orfederal law. (5) Ifan agency holds a mandatory hearing under described in Subsection 63·46a-4(6), no second hearing is required for the purpose of comment on the same rule or change considered at the first hearing.

RI5-I-5. Hearing Procedures. (1) Notice. (a) An agency shall provide notice ofa hearingby: (i) publishing the hearing date. time, place, and subject in the bulletin; (ii) mailing copies ofthe notice directly to persons who have petitioned for a hearing or rule changes under Section 63-46a-5 or 63-46a-12, respectively; and (iii) posting for at least 24 hours in a place in the agency's offices which is frequented by the public. (b) Ifa 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 ofthe time and place. (c) An agency may provide additional notice ofa 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

ahearing, a memberorthe body's designee may be the hearing officer. (3) Time. The officer shall open the hearing at the announced time and place and permit commentfor a minimum ofone hour. The hearing may be extended or continued to another day as necessary in thejudgmentofthe officer. (4) Comment. (a) At the opening ofthe 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 oftime. (b) The agency shall have a representative at the hearing, otherthan 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) Theofficer shall conduct thehearing as an open, informal, orderly, and informative meeting. Oaths, crossexamination, and rules ofevidence are not required. (5) The HearingRecord. the procedures ofthis rule during the public comment period (a) The officer shall cause to be recorded the name,



# -

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address, and relevant affiliation ofall persons speaking at the hearing, and cause an electronic or mechanical verbatim recording ofthe hearing to be made, ormake a briefsummary, oftheirremarks. (b) The hearing record consists of a copy of the proposed rule orrule change, submitted written comment, the hearing recording or summary, the list ofpersons speaking at the hearing, and other peninent 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) Thehearing record shall be kept with and as pan of the rule's administrative record in a file available at the agency offices for public inspection.

RI5-1-8. Decision on an Issue Regarding Rulemaking Procedure. (I) When a hearing issue requires a decision regarding rulemaking procedure, the officer shall submit a written request for a decision to the director as soon as practicable after, or afterrecessing, 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.

RI5-1-9. Appeal and Judicial Review. (l) Persons may appeal the decision ofthe agency head or the division by petitioning the district coun for judicial review as provided by law.

KEY: administrative law,governmenthearings June 1, 1996 63-46a-1O Notice ofContinuationNovember 1, 1995

R15. Administrative Services, Administrative Rules. RI5-2. PublicPetitioningfor Rulemaking. RI5-2-1. Authority. As required by Subsection 63-46a-12(2), this rule prescribes the form and procedures for submission, consideration, and disposition of petitions requesting the making, amendment, orrepeal ofan administrative rule.

RI5-2-2. Definitions. (1) Terms used in this rule are defined in Section 63-46a-2.(2) In addition, "rule change" means: (a) making a new rule; (b) amending, repealing, orrepealing and reenacting

an existing rule; (c) amending a proposed rule funher by filing a change in proposed rule under the provisions ofSection 63­ 46a-6; 

# - (d) allowing a proposed (new, amended, repealed,

orrepealed and reenacted) rule orchange in proposed rule to lapse; or (e) any combination ofthe above.

RI5-2-3. Petition Procedure. (I) The petition shall be addressed and delivered to the head ofthe agency authorized by law to make the rule change requested. (2) The agency receiving the petition shall stamp the petition with the date ofreceipt.

RI5-2-4. Petition Form. The petition shall: (a) be clearly designated "petition for a rule change"; (b) state the approximate wording ofthe requested rule change; (c) describe the reason for the rule change; (d) include an address and telephone where the petitionercan be reached during regular work days; and (e) be signed by the petitioner.

RI5-2-5. Petition ConsiderationAnd Disposition. (1) The agency head ordesignee 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 ofthe petition; and (c) send the response to the petitioner within 30 days ofreceipt ofthe petition. (2) The petitioned agency may interview the petitioner, hold a public hearing on the petition, or take any action the agency, in its judgement, deems necessary to provide the petition due consideration. (3) The agency shall retain the petition and a copy ofthe agency's response as part ofthe administrative record. (4) The agency shall mail copies ofits decision to all persons who petitioned for a rule change.

KEY: administrative law June 1,1996 63-46a-12 Notice ofContinuationNovember 1, 1995

R15. Administrative Services,Administrative Rules. RI5-3. Definitional Clarification ofAdministrative Rule. RI5-3-1. Authority, Purpose,and Definitions. (I) This rule is authorized underSubsection 63-46a10(1) which requires the division to administer the Utah Administrative Rulemaking Act, Title 63, Chapter46a.



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(2) This rule clarifies when rulemaking is required, and requirements for incorporation by reference within rules. (3) Tenns used in this rule are defined in Section 63-46a-2.

R1S-3-2. Agency Discretion. (I) A rule may restrict agency discretion to prevent agency personnel from exceeding their scope ofemployment,

orcommitting arbitrary action or application ofstandards, or to provide due process for persons affected by agency actions. (2) A rule may authorize agency discretion that sets limits, standards, and scope ofemployment within which a range ofactions may be applied by agency personnel. A rule may also establish criteria for granting exceptions to the standards or procedures ofthe rule when, in thejudgment 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 63-46a-3(2). (4) Within the limits prescribed by Sections 63-46a3 and 63-46a-12.1, an agency has full discretion regarding the substantive content ofits rules. The division has authority over nonsubstantive content under Subsections 63-46a-1O(2) and (3), and 63-46a-l0.5(2) and (3), rulemaking procedures, and the physical fonnat ofrules for compilation in the Utah Administrative Code.

R1S-3-3. Use ofIncorporation by Reference inRules. (l) An agency incorporating materials by reference

as pennitted under Subsection 63-46a-3(7) shall comply with the following standards: (a) The rule shall state specifically that the cited material is "incorporated by reference." (b) Ifthe material contains options, oris modified in its application, the options selected andmodifications 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 63-46a-3(7)(c),

an agency shall describe substantive changes that appearin the materials incorporated by reference as part ofthe "summary of rule orchange" in the rule analysis. (2) An agency shall comply with copyright requirements when it provides the division a copy ofmaterial incorporated by reference.

R1S-3-4. Computer-Prohibited Material. (I) All rules shall be in a fonnat that permits their compatibility with the division's computer system and compilation into the Utah Administrative Code. (2) Rules may not contain maps, charts, graphs, diagrams, illustrations, fonns, or similar material. (3) The division shall issue and provide to agencies instructions and standards for formatting rules.

KEY: administrative law June 1, 1996. 63-46a-l0 Notice ofContinuation October 11, 1997 63-46a-3

R1S. Administrative Services, Administrative Rules. R1S-4. Administrative Rulemaking Procedures. R1S-4-1. Authority and Purpose. (I) This rule establishes procedures for filing and publication ofagency rules under Sections 63-46a-4, 63-46a6, and 63-46a-7, as authorized under Subsection 63-46a-1O(I). (2) The procedures ofthis rule constitute minimum requirements for rule filing and publication. Othergoverning statutes, federal laws, or federal regulations may require additional rule filing and publication procedures.**RlS-4~2.** Definitions. (l) Tenns used in this rule are defined in Section 63-46a-2.(2) Other tenns are defined as follows: (a) "Anniversary date" means the date that is five years from the original effective date ofthe 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 63-46a-9(3), whichever is sooner. (b) "Digest" means the Utah State Digest that summarizes the content of the bulletin as required by Subsection 63-46a-lO( 1)(0; (c) "Codify" means the process ofcollecting 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 63-46a-4(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; (0 "Savings" means: (i) an aggregated monetary amount that will no longer be incurred by persons as a class ifa rule orchange is made effective; (ii) an aggregated monetary amount that will be refunded orrebated ifa rule orchange is made effective; (iii) an aggregated monetary amount ofanticipated

revenues to be generated for statebudgets, local governments,



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orboth ifa rule orchange is made effective; or (iv) any combination ofthese aggregated monetary amounts. (g) "Unmarked change" means a change made to rule text that was not marked as required by Subsection 63­ 46a-4(2)(b).

R15-4-3. Publication Dates and Deadlines. (I) Forthepurposes ofSubsections 63-46a-4(2) and 63-46a-6(1), an agency shall file its rule and rule analysis by II:59:59 p.m. on the fifteenth day of the month for publication in the bulletin and digest issued on the first ofthe
next month, and by I I:59:59 p.m. on the first day of the month for publication on the fifteenth ofthe same month. (a) Ifthe first or fifteenth day is a Saturday, or a Tuesday, Wednesday, Thursday, orFriday holiday, the agency shall file the rule and rule analysis by 11 :59:59 p.m. on the previous regularbusiness day. (b) If the first or fifteenth day is a Sunday or Monday holiday, the agency shall file the rule and rule analysis by 1I:59:59 p.m. on the next regular business day. (2) Forall purposes, the official date ofpublication for the bulletin and digest shall be the first and fifteenth days ofeach month.

R15-4-4. Thirty-day CommentPeriod. (I) Forthe purposes ofSubsections 63-46a-4(6) and 63-46a-4(7), and in confonnity with Utah Rules of Civil Procedures, Rule 6 (a), "30 days" shall be computedby: (a) counting the day after publication ofthe rule as the first day; and (b) counting the thirtieth consecutive day after the day ofpublication as the thirtiethday, unless (c) the thirtieth consecutive day is a Saturday, Sunday, or holiday, in which event the comment period runs until 5 p.m. the next regular business day. (2) A rule may bemade effective on the day after the comment period expires.

R15-4-5. Notice ofthe Effective Date ofa Rule. (I) (a) Upon expiration of the comment period designated on the rule analysis and filed with the rule, and before expiration of 120 days after publication ofa proposed rule, the agency proposingthe rule shall notify the division of the date the rule is tobecome effective and enforceable. (b) The agency shall notify the division after determining that the proposed rule, in the fonn published, shall be the final fonn of the rule, and after infonning the division ofany nonsubstantive changes in the rule as provided for in Section RI5-4-6. (2) (a) Theagency shall notify the division by filing with the division a form designated for that purpose indicating the effective date. (b) If the fonn designated 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 flJle was filed with the division or published in the bulletin, and stating its effective date. (3) Thedate designated shall be after the comment period specified on the rule analysis. (4) The division shall publish the effective date in the next issue of the bulletin and digest. There is no publication deadline for a notice of effective date, nor requirement that it be published prior to the effective date.

R15-4-6. Nonsubstantive Changes in Rules. (1) Pursuant to Subsections 63-46a-3(4)(d) and 63­ 46a-6(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 ofthis section. (2) The agency proposing a change shall detennine ifthe changeis substantive ornonsubstantive according to the criteria cited in Subsection R I5-4-6(I). (a) The agency may seek the advice ofthe 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) Tomake a nonsubstantive change in a rule, the agency shall: (a) notify the division by filing with the division the fonn 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 ofthe 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. ( I) Pursuant to Section 63-46a-6, agencies shall comply with the procedures of this section when making a substantive change in a proposed rule. (a) The procedures ofthis section apply if: (i) the agency detennines a change in the rule is necessary; (ii) the change is substantive under the criteria of



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Subsection 63-46a-2(18); (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 ofSubsection 63-46a-6(I)(d) and Section R15-4-5. (b) Ifthe rule is already effective, the agency shall comply with regularrulemaking 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) acopy oftheproposed rule previously published in the bulletin marked to show only those changes made since the proposed rule was previously published as described in Section RI5-4-9. (3) The division shall publish the rule analysis in the next issue of the bulletin, subject to the publication deadlines ofSection R15-4-3. The division may also publish the changed text ofthe rule. (4) The agency may make a change in proposed rule effective by following the requirements ofSection R15-4-5, or may further amend the rule by following the procedures of Sections R15-4-6 orR15-4-7.

R15-4-8. Temporary 120-day Rules. (1) Pursuant to Section 63-46a-7, for thepurpose of filing a temporary rule, an agency shall comply with the procedures ofthis section. (2) The agency proposing a temporary rule shall detennine ifthe need for the rule complies with the criteria of Subsection 63-46a-7(1). (a) Thedivision interprets the criteriaofSubsection 63-46a-7(1) to include under "welfare" any substantial material loss to the classes ofpersons oragencies the agency is mandated to regulate, serve, orprotect. (3) The agency shall use the same procedures for filing and publishing atemporary rule as for a permanent rule, except: (a) the rule shall becomeeffective and enforceable

on the day and hour it is recorded by the division unless the agency designates a latereffective 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 ruleis effectivedate unless the filing agency notifies the division, on the form orby memorandum, ofan earlierexpiration 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 atemporary rule and a similar regularrule are in effect at the same time, any conflict between the provisions ofthe two are resolved in favor ofthe rule with the
most recent effective date, unless the agency designates otherwise as part ofthe rule analysis. (6) A temporary rule has the full force and effectof

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

R15-4-9. Underscoring and StrikingOut. (1) (a) Pursuant to Subsection 63-46a-4(2)(b), an agency shall underscore language to be added and strike out language to bedeleted in proposed rules. (b) Consistent with Subsection 63-46a-4(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 ofthe 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 "repealedin its entirety" or (ij) the entire text struck out in its entirety and surrounded by one set ofbrackets. (c) The division shall not publish repealed rules unless space is available within the page limits ofthe 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 detennining whetherornot to codify an unmarked change, the director shall consider: (a) whetherthe 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 thatthechange is not operative for thepurposes ofSection 63-46a-16and that the agency must comply with regularrulemaking procedures to make the change.

R15-4-10. Estimates ofAntjcipated Cost orSavings, and Compliance Cost. (1) Pursuant to Subsections 63-46a-4(3), 63-46a6(1), 63-46a-7(2), and 53C-I-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



## August 17, 1998 UTAH ADMINISTRATIVE CODE


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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 orchange; (b) estimate the incremental cost or savings and incremental compliance cost in dollars, except as otherwise provided in Subsections RI5-4-1O(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 "statebudgets," "local governments," or "other persons" as aggregated cost or savings; (2) In addition, an agency may; (a) provide a narrative description of anticipated
cost orsavings, and compliance cost; (b) compare anticipated cost or savings, and compliancecost figures, for the rule orchange 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 compliancecost figures. (4) Ifdollarestimates are unknown ornot 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 ofhow 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," "other persons," or any combination ofthese. (6) Ifan agency does not provide an estimate of cost, savings, compliance cost, or a reasoned narrative description ofcost information; or a written explanation as part ofthe 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 orchange. Ifthe Division refuses to register and publish arule 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 July I, 1998 63-46a-IO Notice ofContinuation October 11, 1997

RIS. Administrative Services, AdministrativeRules. RIS-S. Administrative Rules AdjudicativeProceedings. RIS-S-I. Purpose. (I) This rule provides the procedures for informal adjudicative proceedings governing: (a) appeal and review ofa decision by the division
not to publish an agency's proposed rule orrule change or not to register an agency's notice ofeffective date; and (b) a determination by the division whether an agency rule meets the procedural requirements ofTitle 63, Chapter46a, the Utah Administrative Rulemaking Act. (2) The infonnal procedures ofthis rule apply to all other division actions for which an adjudicative proceeding may be required.

RIS-S-2. Authority. This rule is required by Sections 63-46b-4 and 63­ 46a-5, and is enacted under the authority of Subsection 63­ 46a-l0(1)(n) and Sections 63-46b-4, 63-46b-5, and 63-46b21.

RIS-S-3. Definitions. (1) The terms used in this rule are defined in Section 63-46b-2. (2) In addition, "digest" means the Utah State Digest which summarizes the content of the bulletin as required under Subsection 63-46a-lO(1)(0.

RIS-S-4. Refusal to Publish or Register a Rule or Rule Change. (l) The division shall not publish a proposed rule or rule change when the division determines the agency has not met the requirements of Title 63, Chapter 46a, or of Rules R15-3 orRI5-4. (2) Thedivision shall notregister an agency's notice ofeffectivedate, nor codify the rule orrule change in the Utah Administrative Code, ifthe agency exceeds the 120-day limit required by Subsection 63-46a-4(6)(a) as interpreted in Section R15-4-5. (3) The division shall notify the agency ofa refusal
to publish or register a rule or rule change, and shall advise and assist the agency in correcting any errororomission, and in re-filing to meet statutory and regulatory criteria.

RIS-S-S. Appeal ofa Refusal to Publish or Register a Rule



### August 17, 1998 

## UTAH ADMINISTRATIVE CODE 6

## ADMINISTRATIVE SERVICES



# -

orRule Change. (I) An agency may request a review ofa division refusal to publish orregister a rule orrule 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 ofthe Department ofAdministrative Services within 20 days of receipt of the division director's decision. The Executive Director shall respond within 20days affirming or reversing the division director's decision.

RI5-5-6. Determining the Procedural Validity ofa Rule. (l) A person may contest the procedural validity, or request a determination of whether a rule meets the requirements of Title 63, Chapter 46a, 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 thetwo-year limit set by Section 63-46a-14. (c) The petition may emanate from a rulemaking hearing as in Section RI5-1-8. (d) The petition shall specify the rule orrule change
at issue and reasons why the petitionerdeems it procedurally flawed orinvalid. (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 numberwhere the petitionercanbecontacted during regular business hours. (2) The division shall respond to the petition in writing within 20 days ofits receipt. (a) Thedivision shall research all records pertaining
to the rule orrule change at issue. (b) The response ofthe division shall state whether the rule is procedurally valid orinvalid 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) Ifthe petitioner receives no response within 20 days, the request is denied.

RI5-5-7. Remedies Resulting from an Adjudicative Proceeding. (1) A rule the division determines is proceduraJly invalid shall be stricken from the Utah Administrative Code and notice ofits deletion published in the next issues ofthe bulletin and digest. (2) The division shall notify the pertinent agency and assist the agency in re-filing orotherwise remedying the procedural omission orerror in the rule. (3) A rule the division determines is proceduraJly valid shall be published and registered promptly.

KEY: administrative procedure, administrative law June 1, 1996 63-46a-l0 Notice ofContinuation 1993 63-46b-4 63-46b-5 63-46b-21

R15. Administrative Services, Administrative Rules. RI5-6. Rulemaking Decision and Administrative Record. RI5-6·1. Authority and Purpose. (l) In response to standards ofjudicial review of administrativerules identified in Section 63-46a-12.1, this rule requires agency consideration of public comment before rulemaking. (2) The requirements of this rule are authorized underSection 63-46a-10, in conjunction with Subsection 63­ 46a-12.1(4)(a)(ii).

RI5-6-2. Definitions. Terms used in this rule are defined in Section 63­ 46a-2.

RI5-6-3. RulemakingDecision. (1) The agency head orhis designee shall consider the administrative record, including public comment, or a summary of the record prepared by agency staff, before initiating procedures to make, amend, or make effective the rule proposal. (2) The agency head or his designee may confer with agency staff, including the hearing officer, and with interested parties at any time prior to reaching his decision to make, amend, ormake effective a rule proposal. (3) If the agency held a hearing on the proposed rule pursuant to a request under Section 63-46a-5, it shall notify in writing all persons who petitioned for the hearing of the agency's decision regarding the rulemaking proposal.

KEY: administrativeprocedure 1990 63-46a-l0 Notice ofContinuationNovember 1, 1995



# -. 7 

### August 17, 1998 

## UTAH ADMINISTRATIVE CODE

# Proposed Rule



# - p-\

### NOTICES OFPROPOSED RULES DARFileNo. 22043



# -

•

NOTICE OF PROPOSED RULE (Amendment) DAR FILE 

### No.: 22043 FILED: 05/1311999, 13:24 RECEIVED BY: NL 

## Environmental Quality, Air Quality 

# R307-202-5 Perrnissible Burning

- With Permit

RULE ANALYSIS PURPOSE OF THE RULE OR REASON FORTHE CHANGE: Allow an earlier window in which open buming can be authorized by the local fire marshal.

STATESTATUTORYOR CONSTITUTIONALAUTHORIZATION FORTHIS RULE: Section 19-2-104 SUMMARY OF THE RULE OR CHANGE: The present rule allows the countyfire marshal to establish a 3D-daywindow in which citizens may bum waste from yard cleanup. Thewindow may be scheduled between March 30 and May 30. In response to a request from the Washington County Mayors Association, the amendment changes the start date for the window to March 1to better accommodate areas ofthe state which are dry enough to bum earlier in the year.

ANTICIPATED COSTOR SAVINGS TO: ·:·THE STATE BUDGET: No change--the window is only 30 days long, no matter when it opens and closes. 

# • KEY: advertising, bait d switch, consumerprotection**l¥r:hnl~~,~'fJ119** 63-46a-3 

### Notice ofContinuationSeptember 11, 1997 13-2-5 13-11

under what 07/07/1999 INTERESTED PERSONS MAY PRESENTTHEIR VIEWS ON THIS RULE BYSUBMITI1NG WR NCOM NTS TOTHE ADDRESS ABOVE NO LATERTHAN 5:00 P.M. N /06/1999.

AUTHORIZED BY: 17 ancine 

### A., Giani, Director \ \

## \ R152. Co erce, Consumer**Pr~ection.** 

### R152-2. U h Consumer Sales**Pra~ces** 

### Act. R152-2­

. Deposits and Refunds. A. t shall be a deceptive act orprae
cons er transaction for a supplier to ace foIl ing conditions are met:**~',,'** (1) The deposit obligates the su 'ertore

. for aspecified period of time from offering for ale to any otH r person the consilmer commodities in relal' n to which the depo 't has been made 

### b'Y. the consumerifsue consumercommodities unique;**provided""~at** a supplier ay continue to sell or offer 0 sell

consumer

### co~odities which a

### de~~it has

### ~en made if

# i\ has available s lentco umercommoditIes to satIsfy all**cons~r** who have made e sits; (2) All de ts accepted by a suppliermustbe eviden dated receipts atin the following information: (a) De

.ption 0 econsumercommodity, (inel model ye ,when approp

.ate, make, and color); (Q The cash selling p c) Allowance on the con mercommo' to be traded in. if



### 24 UTAHSTATE BUUErlN,

### June 1, 1999, Vol. 99, No. 11

# • • DARFileNo. 22044 NOTICES OFPROPOSED RULES

·:·LOCAL GOVERNMENTS: No change--the window is only 30 days long, no matterwhen it opens and closes. ·:·OTHER PERSONS: No change--the window is 30 days long,
no matterwhen it opens and closes. COMPLIANCE COSTS FOR AFFECTED PERSONS: No change--the window is 30 days long, no matterwhen it opens and closes.

COMMENTS BY THE DEPARTMENT HEAD ON THE FISCAL IMPACT THE RULE MAY HAVE ON BUSINESSES: This rule has no fiscal impact on businesses--Dianne R. Nielson.

THE FULL TEXT OF THIS RULE MAY BE INSPECTED, DURING REGULAR BUSINESS HOURS, AT: Environmental Quality Air Quality 150 North 1950 West Box 144820 Salt Lake City, UT 84114-4820, or at the Division of Administrative Rules.

DIRECT QUESTIONS REGARDING THIS RULE TO: Jan Miller at the above address, by phone at (801) 536-4042, by FAX at (801) 536-4099, or by Internet E-mail at jmiller@deq.state.ut.us

.
INTERESTED PERSONS MAY PRESENTTHEIR VIEWS ON THIS RULE BY SUBMITTING WRITTEN COMMENTS TOTHE ADDRESS ABOVE NO LATER THAN 5:00 P.M. ON 07/01/1999; OR ATIENDING APUBLIC HEARING SCHEDULED FOR 06/03/1999, at 3:00 p.m. in Conference Room 2, St. George City Hall, 175 East 200 North, St. George, UT; and 06/30/1999 at 1 :30 p.m. in Room 201, Department of Environmental Quality (DEQ) Bldg., 168 North 1950 West, Salt Lake City, UT.

THIS RULE MAY BECOME EFFECTIVE ON: 08/05/1999

AUTHORIZED BY: Rick Sprott, Planning Branch Manager

R307. Environmental Quality,AirQuality. R307-202. EmissionStandards: General Burning. R307-202-S. Permissible Burning·WithPermit. (1) Open burning is authorizedby the issuance ofa permit as specified in (3) below when not prohibited by other laws or other officials havingjurisdiction, and when a nuisance as defined in Section 76-10-803 is notcreated. (2) Individual permits for the types ofburning listed in (3) below may be issued by an authorized local authority under the "clearing index" system approved and coordinated by the DepartmentofEnvironmental Quality. (3) Types ofbumingfor which a permitmay begranted are: (a) open bwning of tree cuttings and slash in forest areas where the cuttings accrue from pulping, lumbering, and similar operations, but excluding waste from sawmill operations such as sawdust and scrap lumber; (b) openburning oftrees and brushwithin railroad rights-ofway providedthat dirt is removed from stumps beforeburning, and that tires, oil more dense than #2 fuel oil or othermaterials which

can cause severe airpollution are not used to start fIres orkeep fires burning; (c) open burning of solid or liquid fuels or structures for removal ofhazards or eyesores; (d) openburning. inremote areas, ofhighly explosiveorother hazardous materials, for which there is no other known practical method ofdisposal; (e) open burning of clippings, bushes, plants and prunings from trees incident to property clean-up activities provided that the following conditions have been met: (i) in any area ofthe state, the local county fire marshal[t] has established a 30 day period between March 

### [3eU and May 30 for such burning to occur and notified the executive secretary of the open burning period prior to the commencement of the 30 day period, or, in areas which are located outside ofSalt Lake, Davis, Weber, and Utah Counties, the local county fire marshal[t] has established, ifallowed by the state foresterunderSection 65A-8-9,

a 30 day period between September 15 and October 30 for such burning to occur and has notified the executive secretary of the opening burning period prior to the commencement ofthe 30day period; (ii) such burning occurs during the period established by the local county frre marshal[t]; (iii) materials tobeburnedare thoroughly dry;

. (iv) no trash, rubbish, tires, or oil are used to start fires or included in the material to beburned. (4) The Board may grant a permit for types ofopen burning
not specified in (3) above on written application ifthe Boardfinds that the burning is not inconsistent with the State Implementation Plan.

KEY: air**pollutio~** open burning*,fire marshal* [SeptembCi 15,1998]1999 19-2-104 11-7-1(2){a) 6SA-8-9 [;i 

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## Corpc '}tion 143 SOUTH**~N** ST. P.O.BOX 45838 t,

## \'~~~tgaktirihunt**{~~** DESERET"NEWS 

### CUSTOMER'S SALT LAKE CITY, UTAH 84145**~.~,.~-** 

### . 

### COpy

FED.TAX I.D.i 87-0217663 

## PROOF OFPUBLICATION

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### SfDEPT OFENVR QULTY DIV OFAIR QUALITY P.O. BOX 144820 

### SALT LAKE CITY, ill84114 U5364000L-07 

### 06/16/99

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### Sf ART 

### 05128/99 END 

### 06/16/99 

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## roRQAPPlA. pp

# :~CCT RIC [PROJECT 

# lJiiBl 

# .;IjLL.:-., 

# H-;;L

# ~~I**J2XK'{~oRfJ~ ~-a9-7t7** 

# UTAH STATE DEPARTMENT OF ENVIRONMENTAL QUALITY DIVISION OF AIR QUALITY PUBLIC 

# HEARING ROSTER

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## STATEOFUTAH DEPARTMENT OFENVIRONMENTAL QUALITY AIR QUALITYBOARD

PUBLIC HEARING



# Amend R307-202-5 Open Burning Provisions

Thursday, June 3, 1999 

## 3:00PM St George CityHall Conference Room B St. George



# - BEFORE Karl Brooks, HEARING OFFICER



# H-4

# - This hearingby the Air QualityBoard is called to order. Fortoday's hearing we are considering extending the window during which the local fire marshal may establish a 30"<lay period for burning yard waste. My name is Karl Brooks and I am a member ofthe Air Quality
Board. Also present today is Rob Leishman, environmental scientist for the Division ofAir Quality.

The present rule allo\ys the window to be setbetween March 30 and May 30. At the
request ofthe Washington County mayors association, the proposed change would allow the
window to be set between March 1and May 30, thus accommodating areas which are dry earlier.
Theseproceedings are being recorded, and a summarywill be made. Ifyou want a copy
ofthe summary, contact Jan Miller at the Division ofAir Quality by phone at 536-4042. Mypurpose is to receive comments and suggestions relative to the proposedrevisions.
Electronic copies ofthe proposals are available at WWW.RULES.STATE.UT.US/
DAR.HTM

.. Papercopies are available at the Division ofAir Quality and at the door. The

. comment periodcloses at 5 p.m. on July 1. Comments postmarked on orbeforeJuly 1, 1999,

will be considered. Both written and oral comments will beconsideredequally.



# -­ This session will continueuntil all those who wish to make a statement have done so. Anyone who desires to make a statement should submit a completed form. Tohelp with the hearing record, will all in attendance please sign the roster. Following normal protocol, I will first hear from any federally electedofficials, state
elected officials, local electedofficials, and then the general public. Are there any federally
elected officials wishing to testify? State elected officials? Local elected officials?

# UTAH STATE DEPARTMENT OF ENVIRONMENTAL QUALIlY DIVISION OF AIR QUALITY PUBLIC HEARING 

# ROSTER

SUBJECT

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# -

## STATE OFUTAH DEPARTMENT OFENVIRONMENTAL QUALITY AIR QUALITYBOARD

PUBLIC HEARING



# Amend R307-202-S Open Burning Provisions



# -

Wednesday, June 

## 30, 1999 1:30PM Room 

## 201 DEQ Building 

## 168 N. 1950West

Salt 

## Lake City



## BEFORE Jan Miller, HEARING OFFICER 

# ­

## This hearingby the Air QualityBoardis called to order. Fortoday's hearing'we are considering extending the window during which the local ,tire marshal may establish a 30-day period for burning yard waste. My name is Jan Miller and I am the rules coordinator for the
Division ofAir Quality. Also present today is Marv Maxell, manager ofthe Air Standards
Branch.
The presentrule allows the window to be setbetween March 30 and May 30. At the
request ofthe Washington County mayors association, the proposed change would allow the
window to be setbetween March 1and May 30, thus accommodating areas which are dry earlier.
These proceedings are being recorded, and a summary will belllade. If

## you want a copy
ofthe summary, contact Jan Miller at the Division ofAir Qualityby phone at 536-4042. My purpose is to receive comments and suggestions relative to the proposedrevisions.
Electronic copies ofthe proposals are available at WWW.RlTLES.STATE.UT.US/



# ,­ DAR.HTM

.. Paper copies are available at the Division ofAir Quality and at the door. The

comment period closes at 5 p.m. on July 1. Comments postmarked on orbefore July 1, 1999,
will be considered. Both written and oral comments will be considered equally.
This session will continue until all those who wish to make a statement have done so. Anyone who desires to make a statement should submit a completed form. To help with the hearing record, will all in attendance please sign the roster. Following normal protocol, Iwill first hear from any federally elected officials, state elected officials, local elected officials, and then the general public. Are there any federally
elected officials wishing to testify? State elected officials? Local elected officials?



# -Michael 

### o. Leavitt Governor

nne R. NielsoIkPh.D. Executive uirector
Ursula K. Trueman Director 

### DEPARTMENT OF ENVIRONMENTAL QUALITY DMSION OF AIR QUALITY

150 North 1950 West P.O. Box 144820 Salt Lake City, Utah 84114-4820 (801) 536-4000 Voice (801) 5364099 Fax (801) 536-4414 T.D.D. '"f' ' 

# -

MEMORANDUM

TO: 

## Air Quality Board DAQ-088-99

THROUGH: Ursula K. trueman,Executive Secretary

FROM: Marv Maxell, Manager, Air StandardsBranch

DATE: July 5, 1999

SUBJECT: Final Adoption: R307-202-5, Extending Windowfor OpenBurning

OnMay 5, 1999, theAir Quality Boardproposed an amendmentto R307-202-5 to extend the

­ period during which local officials may seta 30-dayperiod for openburning ofyard wastes. Presentlytheperiod is March 30-May 30; the amendment allows the 30-day windowto beginon March 1. TheBoard established a public commentperiodfor the proposed changes from June 1 toJuly 1, 1999. Publichearings were held onJune 3 in St. George andJune 29 in 

## SaltLake City;

no one attended eitherhearing, and no written commentshavebeenreceived. Ifany written
comments are received, we will bring themto youatyourmeeting.

Recommendation: TheDAQ staffrecommends thatthe Board adopttherule changeasproposed.



# -

# Effective Rule



# -

# R307-205

DAR22043

Effective

# July 15, 1999



# -

### Effective 

### July 15, 1999 R307-205 page 2



### R307. Environmental Quality,AirQuality. R307-202. EmissionStandards: General Burning. R307-202-1. Definitions andExclusions. As provided in Section 19-2-114, theprovisions ofR307-202 are not applicable to: (1) burning incident to horticultural or agricultural operationsof: (a) pruningsfrom trees, bushes, and plants; or (b) dead ordiseased trees, bushes, and plants, including stubble; (2) burning ofweed growth along ditch banks incidentto clearing theseditches for irrigation purposes; (3) controlled heating of orchards or other crops to lessen the chances oftheir being frozen so long

as the emissions from this heating do not violate minimum standards setby the board; and (4) the controlled burning ofnot morethan two structures per year by an organized and operating fire department for the purpose of training fire service personnel when the United States Weather Service clearing index is above 500. See also Section 11-7-1(2)(a). 

# ,­ R307-202-2. CommunityWasteDisposal. No open burning shall bedone at sites used for disposal ofcommunity trash, garbage and other wastes except as authorized through a variance or as authorized for a specific period oftime by the Board on the basis of justifiablecircumstancesreviewed and weighed in terms ofpollution effects and otherrelevantconsiderations at

an appropriate hearing following written application.



### R307-202-3. GeneralProhibitions. Noperson shall bum any trash, garbageorother wastes, or shall conduct any salvage operation by open burning except in conformity with the provisions of R307-202-4 and 5.



### R307-202-4. Permissible Burning

- WithoutPermit. When not prohibited by otherlaws orby other officials havingjurisdictionand provided that a nuisance

as defined in Section 76-10-803 is not created, the following types ofopen burning are permissible without the necessity ofsecuring a permit: (1) in devices for the primary purpose of preparing food such as outdoor grills and fireplaces; (2) campfires and fires used solely for recreational purposes where such fires are under control ofa responsible person; (3) in indoor fireplaces and residential solid fuel burning devices except as provided in R307-302-2; (4) properly operated industrial flares for combustion offlammable gases; and (5) burning, on the premises, of combustible household wastes generated by occupants ofdwellings of four family units or less in those areas only where no public orduly licensed disposal service is available.



### R307-202-5. Permissible Burning

- WithPermit. (1) Open burning is authorized bythe issuance ofa permit as specified in (3) below when not prohibited by other laws or other officials havingjurisdiction, and when a nuisance as defined in Section 76-10-803 is not created. (2) Individual permits for thetypes ofburning listed in (3) belowmay beissued by an authorized local authorityunderthe "clearing index" systemapproved and coordinated by the Department of Environmental Quality. (3) Types ofburning for which a permitmaybe granted are: (a) open burning oftree cuttings and slash in forest areas where the cuttings accrue from pulping, lumbering, and similar operations, but excluding waste from sawmill operations such as sawdust and scrap lumber; (b) open burning of trees and brush within railroad rights-of-way provided that dirtis removed from stumpsbeforeburning, and that tires, oil moredensethan #2fuel oil orother materials which can cause severe air pollution are notused to startfires orkeep fires burning; (c) open burning of solid or liquid fuels or structures for removal ofhazards oreyesores; (d) open burning, in remote areas, of highly explosive or other hazardous materials, for which there is no otherknown practical method ofdisposal; (e) open burning ofclippings, bushes, plants and prunings from trees incident to property clean-up activities provided that the following conditions have been met: (i) in any area ofthe state, the local county fire marshal has established a 30day period between March 1and May 30for such burning to occur and notified the executive secretary ofthe open burning period prior to the commencement of the 30 day period, or, in areas which are located outside of Salt Lake, Davis, Weber, and Utah Counties, the local county fire marshal has established, ifallowed by the state forester under Section 65A-8-9, a 30 day period between September 15 and October 30for such burning to occurand has notified the executive secretary ofthe opening burning period prior to thecommencementofthe 30day period; (ii) such burning occurs during the period established bythe local county fire marshal; (iii) materials to beburned are thoroughly dry;

# ~-3

# - Effective JUly 

### 15, 1999 R307-205 

### page 3

(iv) no trash, rubbish, tires, or oil are used to startfires or included in the material to beburned. (4) TheBoard may grant a permitfor types of open burning not specified in (3) above on written application if the Board finds that the burning is not inconsistent with the StateImplementation Plan.



### R307-202-6. Special Conditions. Open burning for special purposes, or under unusual or emergency circumstances, may be approved by the executive secretary.



### KEY: airpollution, openburning*,fire marshal* July 15, 1999 19-2-104 11-7-1(2)(a) 65A·8·9

# N~pa.per Agency

# CorpO~ion ;"'C"c .' 143 SOUTH MAIN ST. 

### CUSTOMER'S SALT LAKE CITY, UTAH 84145 

### COpy P.O.BOX 45838 

# Ibtjalt

## ~akt iiibunt

## t....~ DESERET NEWS

FED.TAX I.D.t 87-0217663 

## PROOF OFPUBLICATION



# EIV .JUL 29 19JJ 071221 

### U5364000L-07 UT ST DEFf OFENVR QULTY DIY OFAIR QUALITY P.O. BOX 144820 SALTLAKE CITY, UT 84114

TL82008XBTI 

# Air QUaIl

UT ST DEPf OFENVR ULTY 

# REcer E[
JUl 8 1999 801-536-4000 

# A· Quality

START 

### 07122/99 END 

### 07122199



### DA PNOI899

NOTICE OFEFFECTIVEDATE Air

22 LINES 1.00 COLUMN



### 1 1.64

.00 36.08

AS NEWSPAPER AGENCY CORPORATION LEGAL BOOKKEEPER, I CERTIFY THAT THE ATTACHED ADVERTISEMENT OF 

### NOTICE OF EFFECTIVE DATE Air 

### 0 FOR 

### UT ST DEPT OF ENYR QULTY WAS PUBLISHED BY THE NEWSPAPER AGENCY CORPORATION, AGENT FOR THE SALT LAKE TRIBUNE AND DESERET NEWS,DAILY NEWSPAPERS PRINTED IN THE ENGLISH LANGUAGE WITH GENERAL CIRCULATION IN UTAH,AND PUBLISHED IN SALT LAKE CITY, SALT LAI<E COUNTY IN THE STATE OF UTAH•

.

# ­

## NOTICES OF RULE EFFECTIVE DATES

;'. 

### These are the effective dates of PROPOSED RULES 

### or CHANGES IN PROPOSED RULES 

### published in earlier editio. Jf the Utah State Bulletin. 

### These effective dates are at least 31 days and not more than 120 days after the date the· following rules were published.

Abbreviations AMD

# =Amendment CPR = Change in Proposed Rule NEW = New Rule R&R = Repeal and Reenact REP = Repeal

Administrative Services Finance No. 22049 (AMD): R25-5. Payment of Per Diem to Boards. Published: June 1, 1999 Effective: July 13, 1999

Agriculture and Food Regulatory Services No. 22057 (AMD): R70-630. Water Vending Machine. Published: June 1, 1999 Effective: July 6, 1999

Environmental Quality Air uaY**----~---------** No. 22043 (AMD): R307-202-5. Permissible BurningWith Permit. Published: June 1. 1999 Effective: Jul 15
1\10. 22044 (AMD): R307-210-1. Standards of Performance for New Stationary Sources (NSPS). Published: June 1. 1999 Effective: July 15, 1999

No. 21949 (AMD): R307-328. Davis and Salt Lake Counties and Ozone Nonattainment Areas: Gasoline Transfer and Storage. Published: May 1, 1999 Effective: July 15, 1999

No. 21950 (AMD): R307-342. Davis and Salt Lake Counties and Ozone Nonattainment Areas: Qualification of Contractors, Test Procedures for Testing of Vapor Recovery Systems for Gasoline Delivery Tanks. Published: May 1, 1999 Effective: July 15, 1999 No. 22045 (AMD): R307-415. Permits: Operating. Permit Requirements. Published: June 1, 1999 Effective: July 15, 1999

Solid and Hazardous Waste No. 22046 (AMD): R315-4-2. The Manifest. Published: June 1, 1999 Effective: July 15. 1999

Health Health Systems Improvement, Health Facility Licensure No. 21981 (AMD): R432-3. General Health Care Facility Rules Inspection and Enforcement. Published: May 15, 1999 Effective: July 6, 1999

No. 21918 (AMD): R432-152. Mental Retardation Facility. Published: April 1, 1999 Effective: July 6. 1999
_.

Human Services Mental Health No. 22048 (AMD): R523-1-19. Prohibited Items and Devices on the Grounds of Public Mental Health Facilities. Published: June 1, 1999 Effective: July 2, 1999

Labor Commission Antidiscrimination and Labor. Labor No. 22040 (NEW): R610-4. Employment Agency Licensing. Published: June 1, 1999 Effective: July 2, 1999
Occupational Safety and Health No. 22038 (AMD): R614-1-4. Incorporation of Federa Standards. Published: June 1, 1999 Effective: July 2, 1999

No. 22039 (AMD): R614-1-7. Inspections, Citations and Proposed Penalties. Published: June 1, 1999 Effective: July2, 1999



# -

UTAH STATEBUUETIN, 

### August 1, 

### 1999, Vol. 99, No.1. 

### 60

# Certification

## I, Janice L. Miller, Rules Coordinator for the Utah Division ofAir Quality, do hereby certify that the public hearing held to receive comments regarding amendment ofR307-202-5 to extend the open burning window (DAR # 

## 22043) was held in accordance with the informationprovidedin each publishedpublic notice and as defined in Utah Code 19-2-109. The change was adopted by the Air QualityBoard onJuly 14, 1999

...­ Signedthis day ofAugust, 1999.