No. 42781 (Change in Proposed Rule): Rule R305-7. Administrative Procedures

DAR File No.: 42781
Filed: 08/14/2018 12:59:28 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

These new revisions have been made in response to public comments.

Summary of the rule or change:

In response to public comments, certain revisions on the proposed rule language were deemed reasonable and appropriate. More specifically, the following changes were made: 1) Subsection R305-7-101(2)(a) was revised to clarify that thid rule applies to all adjudications before the entire Department of Environmental Quality (Department); 2) Section R305-7-104 was not revised despite comments on this provision. The commentor took the position that the Department should allow for the initiation of adjudicative proceedings via email or other electronic filing. The current rule requires that a signed, paper copy must be received by the applicable Director as of the due date. The Administration's position is that the current rule, as has been judicially interpreted, requires that a paper copy of an appeal be received as of the due date. The present amendments do not represent any change to the substance of the present rule. Rather, the present amendment is intended to clarify the existing rule. The Department has determined that the initiation of an adjudicative proceeding requires a procedural trigger as appeal deadlines are jurisdictional. It is reasonable for the Department to require that a physical, signed, hard-copy of any appeal be received by the due date so as to assure that the Director actually receives notice of the appeal and can initiate the internal procedures to trigger an adjudication. Initiation of new adjudications via email is not desirable. Utah state courts require a case intake process to initiate new actions. This requires a court clerk to review the filing and accept it. This rule, as amended, was found to be reasonable and in the interests of due process; 3) Section R305-7-114, regarding dismissal for failure to prosecute, was changed to provide a putative party (such as a permittee or licensee) the right to file a motion to dismiss for failure to prosecute; 4) Subsection R305-7-200(2) was amended in response to comments about potential unfairness of the retroactive application of the 2018 amendments. Retroactivity does not apply if there is good cause to apply a former version of this rule in a given situation; 5) Subsection R305-7-302(4), regarding service, was amended to reduce the number of days a Director has to serve a notice from seven to three days. This is reasonable. The automatic extension still applies for each day in excess of three days. It is the normal practice of Directors to serve notices promptly. Three days is consistent with current practices; 6) Subsection R305-7-306(4) was re-written so as to encourage parties to meet and confer and submit a Joint Status Report. Only if the parties are unable to do so do the other procedures apply ï¿½ that the Director would submit a status report, followed by an opportunity for the opposing party to respond. This revision was found to be more consistent with the Utah Rules of Civil Procedure and the normal practice of persons appearing in adjudicative proceedings; 7) Subsection R305-7-306(5) was amended so as to provide a good-cause exception to the rule that responses are not due until the administrative law judge (ALJ) has issued a Notice of Further Proceedings; and 8) Section R305-7-310 was amended to: a) add a provision regarding the use of standard protective orders to address confidentiality issues; and b) delete the proposed provision regarding the application of GRAMA to document discovery. This was the most controversial provision of these proposed rule changes. Based on comments received, it was decided that the most appropriate way to achieve the policy goals of GRAMA as to the protection of certain information is to use a protective order such as is commonly done in federal and state courts. Subsection (2)(b) was amended to provide for the staged service of initial disclosures, making this amendment more consistent with the Utah Rules of Civil Procedure. (EDITOR'S NOTE: The original proposed amendment upon which this change in proposed rule (CPR) was based was published in the May 1, 2018, issue of the Utah State Bulletin, on page 40. Underlining in the rule below indicates text that has been added since the publication of the proposed rule mentioned above; strike-out indicates text that has been deleted. You must view the CPR and the proposed amendment together to understand all of the changes that will be enforceable should the agency make this rule effective.)

Statutory or constitutional authorization for this rule:

Section 19-1-301
Subsection 19-1-201(1)(d)
Subsection 64G-4-102(6)
Section 19-1-301.5

Anticipated cost or savings to:

the state budget:

These amendments will have no impact on the state budget because these amendments simply provide additional clarification of procedure that is already in place under the existing rule.

local governments:

These amendments will have no impact on local governments because these amendments simply provide additional clarification of procedure that is already in place under the existing rule.

small businesses:

These amendments will have no impact on small businesses because these amendments simply provide additional clarification of procedure that is already in place under the existing rule.

persons other than small businesses, businesses, or local governmental entities:

These amendments will have no impact on other persons because the amendments simply provide additional clarification of procedure that is already in place under the existing rule.

Compliance costs for affected persons:

These revisions to the proposed amendments published under Filing No. 42781 in the May 1, 2018, Bulletin, will not result in additional compliance costs for affected persons. There is no associated fee.

Comments by the department head on the fiscal impact the rule may have on businesses:

These revisions to the proposed amendments published under Filing No. 42781 in the May 1, 2018, Bulletin, will not result in additional compliance costs for businesses.

Alan Matheson, Executive Director, Department of E

The full text of this rule may be inspected, during regular business hours, at the Office of Administrative Rules, or at:

Environmental Quality
Administration
195 N 1950 W
SALT LAKE CITY, UT 84116-3085

Direct questions regarding this rule to:

Bret Randall at the above address, by phone at 801-536-0284, by FAX at , or by Internet E-mail at bfrandall@agutah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

This rule may become effective on:

10/08/2018

Authorized by:

Alan Matheson, Executive Director

RULE TEXT

Appendix 1: Regulatory Impact Summary Table*

Fiscal Costs

FY 2019

FY 2020

FY 2021

State Government

Local Government

Small Businesses

Non-Small Businesses

Other Person

Total Fiscal Costs:

Fiscal Benefits

State Government

Local Government

Small Businesses

Non-Small Businesses

Other Persons

Total Fiscal Benefits:

Net Fiscal Benefits:

*This table only includes fiscal impacts that could be measured. If there are inestimable fiscal impacts, they will not be included in this table. Inestimable impacts for State Government, Local Government, Small Businesses and Other Persons are described in the narrative. Inestimable impacts for Non - Small Businesses are described in Appendix 2.

Appendix 2: Regulatory Impact to Non - Small Businesses

The amendment will have no impact on non-small businesses because the amendments simply provide additional clarification of procedure that is already in place under the existing rule.

The executive director of the Department of Environmental Quality has reviewed and approved this fiscal analysis.

R305. Environmental Quality, Administration.

R305-7. Administrative Procedures.

R305-7-101. Scope of Rule and Purpose of Parts.

(1) This rule governs all adjudicative procedures conducted under the authority of the Environmental Quality Code, Utah Code Ann. Title 19. This rule does not govern the proceedings that result in an initial determination by the Director, including the issuance of the initial determination itself.

(2)(a) Part 1 of this Rule (R305-7-101 through 113) applies to all adjudications before the [~~Executive Director~~]Department. It addresses general and preliminary matters.

(b) Part 2 of this Rule (R305-7-200 through 217) applies to special adjudicative proceedings. These procedures are governed by Section 19-1-301.5.

(c) Part 3 of this Rule (R305-7-301 through 319) applies to adjudicative procedures that are not special adjudicative proceedings. These procedures are governed by Section 19-1-301.

(e) Part 4 of this Rule (R305-7-401 through 403) addresses matters initiated by notices of agency action.

(d) Part 5 of this Rule (R305-7-501 through 503) addresses declaratory orders and emergency adjudication.

(e) Part 6 of this Rule (R305-7-601 through 623) addresses matters relevant to specific statutes.

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R305-7-103. Form of Submissions.

(1) All submissions, whether on paper copy or electronic, shall use 8-1/2 by 11 inch pages, be double-spaced, with each page numbered, and have one inch margins and 12 point font. Paper copies of documents submitted under this Rule shall ordinarily be printed on white paper; double-sided printing is encouraged but not required.

(2) Requests for Agency Action, Notices of Agency Action , and Petitions for Review shall include numbered paragraphs.

(3) The first page of every filing shall contain a caption that gives the name and file number of the proceeding, the name of the ALJ if one has been appointed, and the filing date.

(4) Requirements for motions and briefs for special adjudicative proceedings are specified in R305-7-211 and R305-7-213. Requirements for motions for other proceedings are specified in R305-7-312.

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R305-7-111. No Limitation on Authority to Bring Action[~~or Undertake Investigations~~].

(1) Nothing in this Rule shall be read as a limitation on a Director's statutory authority to bring an emergency proceeding or a judicial proceeding under either UAPA, Section 63G-4-502, or under the Department of Environmental Quality Code, Utah Code Ann. Title 19. It shall also not be read as a limitation on the procedures a Director may use for an emergency proceeding under those authorities.

(2) Failure in this Rule to provide administrative procedures for an administrative action that is authorized by statute shall not be read as a limitation of a Director's authority to bring that action.

. . . . . . .

R305-7-114. Prosecution of Actions; Dismissal for Failure to Prosecute.

(1) The party seeking relief is responsible for prosecuting administrative proceedings under this Rule.

(2) Unless the parties otherwise agree, if no request for appointment of an ALJ under R305-7-206(2) has been filed within three months after the filing date of a Request for Agency Action or Petition for Review, the Executive Director , a party, or a putative party to the adjudicative proceeding (e.g., the permittee or licensee) may serve a written notification to the parties stating that, absent a showing of good cause by a date specified in the notification, the Executive Director shall dismiss the adjudication for lack of prosecution. A Director may also file a motion to dismiss for failure to prosecute under this subsection to the Executive Director. In either case, unless good cause is demonstrated, the Executive Director shall dismiss such Request for Agency Action or Petition for Review.

(3) In any adjudicative proceeding in any matter governed by this Rule where an ALJ has been appointed, the Director or other party or putative party to the adjudicative proceeding (e.g., the permittee or licensee) may file a motion to dismiss for failure to prosecute. Unless, after notice, the party seeking relief shows good cause for delay, the ALJ shall enter an order recommending that the Executive Director dismiss the proceeding for lack of prosecution.

R305-7-200. Retrospective Construction and Interpretation.

(1) SB 282 and SB 173 (Gen. Session 2015) modified Section 19-1-301.5 permit review adjudicative procedures effective May 12, 2015. Because the revisions are procedural, they shall be accorded retrospective construction in the sense that they will be applied to pending actions and proceedings, as well as to future actions but will not be so applied as to defeat procedural steps completed before the effective date of May 12, 2015.

(2) Because the 2018 amendments to this Rule are procedural in nature, they shall apply to all matters pending before the Executive Director , unless good cause exists to apply a former version of the Rule.

. . . . . . .

R305-7-302. Issuance and Service of Initial Orders and Notices of Violation.

(1) Unless otherwise stated, an Initial Order or a Notice of Violation is effective upon issuance and, even if it is contested, remains effective unless a stay is issued or the Initial Order or a Notice of Violation is rescinded, vacated or otherwise terminated.

(2) The date of issuance of an Initial Order or a Notice of Violation is the date the Initial Order or a Notice of Violation is signed and dated.

(3) Unless otherwise provided by law, Notices of Violation and Initial Orders shall be served through U.S. Postal Service Certified Mail, postage prepaid, addressed to the respondent's Designated Address. If there is no Designated Address for a respondent, service may be made through U.S. Postal Service Certified Mail, postage prepaid, addressed to the respondent's legal registered agent or, if the respondent is an individual, addressed to the respondent's dwelling or place of business. Notices of Violation and Initial Orders may also be served personally (by hand-delivery) or by Certified Mail with Return Receipt requested. Service of Initial Orders and Notices of Violation may also be made in the same manner as a summons in accordance with Rule 4 of the Utah Rules of Civil Procedure.

(4) Service of Notices of Violation and Initial Orders shall be made no more than [~~seven~~]three days after the date of issuance. If service is made more than [~~seven~~]three days after the date of issuance, the dates provided in R305-7-303 shall be extended by the same number of days that are in excess of [~~seven~~]three days.

(5) For purposes of this Rule, service is effective upon mailing, provided that the U.S. Postal Service Certified Mail receipt shows that the mailing was delivered. If the mailing is returned or if delivery is attempted but not made, service via U.S. Postal Service Certified Mail will not be deemed to be effective.

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R305-7-306. Proceedings After a Request for Agency Action is Filed.

(1) After a Request for Agency Action has been filed, the parties are encouraged to meet to attempt to resolve the matter.

(2) No response to a Request for Agency Action under Section 63G-4-204 is required, but the Director may elect to file a response. No reply to the Director's response is permitted.

(3)(a) Any party may at any time file a request for appointment of an ALJ. An ALJ will not ordinarily be appointed until requested by a party, although the Executive Director may appoint an ALJ at any time.

(b) A request for appointment of an ALJ shall be filed as provided in R305-7-104(2)(a), and served as provided in R305-7-104(2)(b).

(4) [Within 10 days after the appointment of an ALJ, the Director shall file and serve a Status Report that includes a brief statement of the case, an indication as to whether the Director believes further proceedings are warranted, and, if so, the Director's proposed scope of such further proceedings. The Status Report will provide the ALJ with the Director's position as to whether formal discovery is warranted as provided in R305-7-310, and, if so, the general nature and scope of the requested discovery. Within five days after service of the Director's Status Report, the other party or parties shall file and serve a Status Report including the same information outlined above. The parties are encouraged to meet and confer regarding the nature and scope of discovery, scheduling, and other pre-hearing matters]The parties are encouraged to meet and confer regarding the nature and scope of discovery, scheduling, and other pre-hearing matters and to file, within 10 days of the appointment of the ALJ, a Joint Status Report that addresses the following subjects: (a) a brief statement of the case; (b) an indication as to the parties' position as to the need for further proceedings and, if such further proceedings are needed, the anticipated scope of such proceedings; (c) whether reasonable formal discovery is warranted as provided in R305-7-310, and, if such formal discovery is warranted, the general nature and scope of the requested discovery. If the parties are not able to reach agreement on a Joint Status Report, the Director shall file and serve, within 10 days after the appointment of an ALJ, a Status Report that includes the subjects described above. Within 10 days after service of the Director's Status Report, the other party or parties may file and serve a response to the Director's Status Report.

(5) Within 10 days after receipt of the [~~final~~]Joint Status Report or the Response to the Director's Status Report, pursuant to subpart (4) or such other time deemed reasonable by the ALJ, the ALJ shall issue a Notice of Further Proceedings in accordance with Section 63G-4-201(3)(d) and (e). Unless otherwise ordered by the ALJ for good cause (such as a situation involving the need for emergency relief), [~~Until~~]until the ALJ has issued a Notice of Further Proceedings, no responses to motions filed before that date are due. If motions are pending in the matter, the Notice of Further Proceedings shall set the schedule for briefing and, if warranted, hearing and resolution of such pending motions.

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R305-7-310. Disclosures and Discovery.

(1) The ALJ shall allow reasonable formal discovery if requested by any party. The ALJ may limit the scope of formal discovery for the reasons stated in Rule s 26 and 37(a)(7) of the Utah Rules of Civil Procedure. The ALJ may also enter an order imposing sanctions provided in Rule 37(b) of the Utah Rules of Civil Procedure, except that the ALJ has no power of contempt and may not impose financial sanctions under Rule 37. By stipulation or upon motion, the ALJ may enter a protective order imposing protections and limitations governing records of information produced in the adjudicative proceeding. The ALJ is encouraged to use a form of Standard Protective Order typically used in Utah state or federal court proceedings.

(2)(a) Except as otherwise provided in this Section R305-7-310, the time periods, limitations and other requirements for discovery in the Utah Rules of Civil Procedure shall apply unless otherwise ordered by the ALJ after consideration of the specific formal discovery proposed.

(b) Initial disclosures shall be required as provided in Utah Rules of Civil Procedure Rule 26(a)(1)(B) through (D), except that the Director's preparation of the Initial Record as provided in R305-7-309 will be deemed to be adequate to satisfy the Director's duty to provide initial disclosure of records under Rule 26. Unless otherwise ordered by the ALJ, initial disclosures must be filed within twenty-eight (28)[~~fifteen (15)~~] days of the date of service of the Director's Initial Disclosures[~~entry of the Notice of Further Proceedings~~].

(3) If applicable, expert disclosures, as defined under Rule 26, Utah Rules of Civil Procedure, will also be required in connection with an evidentiary hearing on the merits. The due dates as provided in Rule 26 shall apply, unless otherwise ordered by the ALJ.

(4) Prehearing disclosures and related matters will be governed by R305-7-313, or by order of the ALJ, and not by Rule 26, Utah Rules of Civil Procedure.

[(5) All requests for the production of documents submitted to the Director shall be limited by the Government Records Access and Management Act, Title 63G, Chapter 2, as modified by Section 19-1-306 of the Utah Environmental Quality Code. Documents that are not required to be disclosed under these statutes are not subject to discovery in an enforcement proceeding.]

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KEY: administrative procedures, adjudicative procedures, hearings

Date of Enactment or Last Substantive Amendment: 2018

Notice of Continuation: October 26, 2017

Authorizing, and Implemented or Interpreted Law: 19-1-301; 19-1-301.5; 63G-4-102; 63G-4-201; 63G-4-202; 63G-4-203; 63G-4-205; 63G-4-503