R655-4-7. Adjudicative Proceedings

  7.1 Designation of Presiding Officers.

  The following persons may be designated Presiding Officers in well driller adjudicative proceedings: Assistant State Engineers; Deputy State Engineers; or other qualified persons designated by the State Engineer.

  7.2 Disqualification of Presiding Officers.

  7.2.1 A Presiding Officer shall disqualify himself from performing the functions of the Presiding Officer regarding any matter in which he, his spouse, or a person within the third degree of relationship to either of them or the spouse of such person:

  7.2.1.1 Is a party to the proceeding, or an officer, director, or trustee of a party;

  7.2.1.2 Has acted as an attorney in the proceeding or served as an attorney for, or otherwise represented, a party concerning the matter in controversy;

  7.2.1.3 Knows that he has a financial interest, either individually or as a fiduciary, in the subject matter in controversy or in a party to the proceeding;

  7.2.1.4 Knows that he has any other interest that could be substantially affected by the outcome of the proceeding; or

  7.2.1.5 Is likely to be a material witness in the proceeding.

  7.2.2 A Presiding Officer is also subject to disqualification under principles of due process and administrative law.

  7.2.3 These requirements are in addition to any requirements under the Utah Public Officers' and Employees' Ethics Act, Section 67-16-1 et seq.

  7.2.4 A motion for disqualification shall be made first to the Presiding Officer. If the Presiding Officer is appointed, any determination of the Presiding Officer upon a motion for disqualification may be appealed to the State Engineer.

  7.3 Informal Proceedings

  7.3.1 All adjudicative proceedings initiated under this rule are classified as informal adjudicative proceedings.

  7.3.1 The procedures for informal adjudicative proceedings initiated under this rule are set forth in this rule.

  7.4 Service of Notice and Orders.

  7.4.1 Hearing Notices and Final Judgment and Orders shall be served upon the well driller at the well driller's address using certified mail or methods described in Rule 5 of the Utah Rules of Civil Procedure.

  7.4.2 Infraction notices, notices of approval or denial of licensing or registration or license or registration renewal, and other routine correspondence related to the Division's Well Drilling Program shall be sent to the well driller at the well driller's address by regular U.S. Mail.

  7.5 Computation of Time.

  7.5.1 Computation of any time period referred to in these rules shall begin with the first day following the act that initiates the running of the time period. The last day of the time period computed is included unless it is a Saturday, Sunday, or legal holiday or any other day on which the Division is closed, in which event the period shall run until the end of the business hours of the following business day.

  7.5.2 The Presiding Officer, for good cause shown, may extend any time limit contained in these rules, unless precluded by statute. All requests for extensions of time shall be made by motion.

  7.6 Request for Hearing

  7.6.1 A hearing before a Presiding Officer is permitted in a well drilling adjudicative proceeding if:

  7.6.1.1 The proceeding was commenced by an Infraction Notice; or

  7.6.1.2 The proceeding was commenced by a well driller request raising a genuine issue regarding

  7.6.1.2.1 The denial of a license or registration renewal application; or

  7.6.1.2.2 The issuance of a cease and desist order (red tag)

  7.6.2 Regardless of any other provision of the general laws to the contrary, all requests for a hearing shall be in writing and shall be filed with the Division to the attention of the Presiding Officer.

  7.6.3 The request for a hearing shall state clearly and concisely the disputed facts, the supporting facts, the relief sought, and any additional information required by applicable statutes and rules.

  7.6.4 The Presiding Officer shall, give all parties at least ten (10) days notice of the date, time and place for the hearing. The Presiding Officer may grant requests for continuances for good cause shown.

  7.6.5 Any party may, by motion, request that a hearing be held at some place other than that designated by the Presiding Officer, due to disability or infirmity of any party or witness, or where justice and equity would be best served.

  7.6.6 A well driller at any time may withdraw the well driller's request for a hearing. The withdrawal shall be filed with the Division to the attention of the Presiding Officer, in writing, signed by the well driller or an authorized representative, and is deemed final upon the date filed.

  7.7 Filings Generally.

  7.7.1 Papers filed with the Division shall state the title of the proceeding and the name of the well driller on whose behalf the filing is made.

  7.7.2 Papers filed with the Division shall be signed and dated by the well driller on whose behalf the filing is made or by the well driller's authorized representative. The signature constitutes certification that the well driller:

  7.7.2.1 Read the document;

  7.7.2.2 Knows the content thereof;

  7.7.2.3 To the best of the well driller's knowledge, represents that the statements therein are true;

  7.7.2.4 Does not interpose the papers for delay; and

  7.7.2.5 If the well driller's signature does not appear on the paper, authorized a representative with full power and authority to sign the paper.

  7.7.3 All papers, except those submittals and documents that are kept in a larger format during the ordinary course of business, shall be submitted on an 8.5 x 11-inch paper. All papers shall be legibly hand printed or typewritten.

  7.7.4 The Division may provide forms to be used by the parties.

  7.7.5 The original of all papers shall be filed with the Division with such number of additional copies as the Division may reasonably require.

  7.7.6 Simultaneously with the filing of any and all papers with the Division, the party filing such papers shall send a copy to all other parties, or their authorized representative to the proceedings, by hand delivery, or U.S. Mail, postage prepaid, properly addressed.

  7.8 Motions.

  7.8.1 A party may submit a request to the Presiding Officer for any order or action not inconsistent with Utah law or these rules. Such a request shall be called a motion. The types of motions made shall be those that are allowed under these Rules and the Utah Rules of Civil Procedure.

  7.8.2 Motions may be made in writing at any time before or after the commencement of a hearing, or they may be made orally during a hearing. Each motion shall set forth the grounds for the desired order or action and, if submitted in writing, state whether oral argument is requested. A written supporting memorandum, specifying the legal basis and support of the party's position shall accompany all motions.

  7.8.3 The Presiding Officer may, upon the Presiding Officer's own initiative or upon the motion of any party, order any party to file a response or other pleading, and further permit either party to amend its pleadings in a manner just to all parties.

  7.8.4 Preliminary Conference. Parties may request to appear for a preliminary conference prior to a hearing or prior to the scheduled commencement of a hearing or at any time before issuing a Final Judgment and Order. All parties shall prepare and exchange the following information at the initial preliminary conference:

  (a) Names and addresses of prospective witnesses including proposed areas of expertise for expert witnesses;

  (b) A brief summary of proposed testimony;

  (c) A time estimate of each witness' direct testimony;

  (d) Curricula vitae (resumes) of all prospective expert witnesses.

  (e) The scheduling of a preliminary conference shall be solely within the discretion of the Presiding Officer.

  (f) The Presiding Officer shall give all parties at least three (3) days notice of the preliminary conference.

  (g) The notice shall include the date, time and place of the preliminary conference. The purpose of a preliminary conference is to consider any or all of the following:

  (a) The simplification or clarification of the issues;

  (b) The possibility of obtaining stipulations, admissions, agreements on documents, understandings on matters already of record, or similar agreements which shall avoid unnecessary proof;

  (c) The limitation of the number of witnesses or avoidance of similar cumulative evidence, if the case is to be heard;

  (d) The possibility of agreement disposing of all or any of the issues in dispute; or

  (e) Such other matters as may aid in the efficient and equitable disposition of the adjudicative enforcement proceeding.

  7.8.5 Consent Order: If the respondent substantially agrees with or does not contest the statements of fact in the initial order, or if the parties agree to specific amendments to the statements of fact in the initial order, the parties may enter into a Consent Order after a preliminary conference by stipulating to the facts, fines, and penalties, if any. A Consent Order based on that stipulation, shall be prepared by the state engineer for execution by the parties. The executed Consent Order shall be reviewed by the Presiding Officer and, if found to be acceptable, will be signed and issued by the Presiding Officer. A Consent Order issued by the Presiding Officer is not subject to reconsideration or judicial review.

  7.9 Conduct of Hearings.

  7.9.1 All parties, authorized representatives, witnesses and other persons present at the hearing shall conduct themselves in a manner consistent with the standards and decorum commonly observed in Utah courts. Where such decorum is not observed, the Presiding Officer may take appropriate action including adjournment, if necessary.

  7.9.2 The Presiding Officer shall conduct the hearing, make all decisions regarding admission or exclusion of evidence or any other procedural matters, and have an oath or affirmation administered to all witnesses.

  7.10 Rules of Evidence in Hearings.

  7.10.1 Discovery is prohibited, but the Division may issue subpoenas or other orders to compel production of necessary evidence.

  7.10.2 A party may call witnesses and present oral, documentary, and other evidence.

  7.10.3 A party may comment on the issues and conduct cross-examination of any witness as may be required for a full and true disclosure of all facts relevant to any issue designated for hearing, and as may affect the disposition of any interest which permits the person participating to be a party.

  7.10.4 A witness' testimony shall be under oath or affirmation.

  7.10.5 Any evidence may be presented by affidavit rather than by oral testimony, subject to the right of any party to call and examine or cross-examine the affiant.

  7.10.6 Relevant evidence shall be admitted.

  7.10.7 The Presiding Officer's decision may not be based solely on hearsay.

  7.10.8 Official notice may be taken of all facts of which judicial notice may be taken in Utah courts.

  7.10.9 All parties shall have access to public information contained in the Division's files and to all materials and information gathered in the investigation, to the extent permitted by law.

  7.10.10 No evidence shall be admitted after completion of a hearing or after a case is submitted on the record, unless otherwise ordered by the Presiding Officer.

  7.10.11 Intervention is prohibited.

  7.10.12 A well driller appearing before the Presiding Officer for the purpose of a hearing may be represented by a licensed attorney. The Water Well Drilling Specialist shall present evidence before a Presiding Officer supporting the State Engineer's claim. At the State Engineer's discretion, other Division staff or a representative from the office of the Attorney General may also present supporting evidence.

  7.11 Transcript of Hearing.

  7.11.1 Testimony and argument at the hearing shall be recorded electronically. The Division shall make copies of electronic recordings available to any party, upon written request. The fee charged for this service shall be equal to the actual costs of providing the copy. The Division is not responsible to supply any party with a transcript of a hearing.

  7.11.2 If any party shall cause to be produced a transcript of a hearing, a copy of said transcript shall be filed with the Division and provided to all other parties. By order of the Presiding Officer and with the consent of all parties, such written transcript may be deemed an official transcript.

  7.11.3 Corrections to an official transcript may be made only to conform it to the evidence presented at the hearing. Transcript corrections, agreed to by opposing parties, may be incorporated into the record, if and when approved by the Presiding Officer, at any time during the hearing, or after the close of the adjudicative proceeding. The Presiding Officer may call for the submission of proposed corrections and may determine the disposition thereof at appropriate times during the course of the proceeding.

  7.12 Procedures and Standards for Orders

  7.12.1 If the well driller attends the hearing, the Presiding Officer shall issue a Final Judgment and Order.

  7.12.2 The Presiding Officer may issue a Default Order if, after proper notice, the well driller fails to attend a hearing scheduled by the Presiding Officer.

  7.12.3 Within a reasonable time after the close of a well driller adjudicative proceeding, the Presiding Officer shall issue a written and signed Final Judgment and Order, including but not limited to:

  7.12.3.1 A statement of law and jurisdiction;

  7.12.3.2 A statement of facts;

  7.12.3.3 An identification of the confirmed infraction(s);

  7.12.3.4 An order setting forth actions required of the well driller;

  7.12.3.5 A notice of the option to request reconsideration and the right to petition for judicial review;

  7.12.3.6 The time limits for requesting reconsideration or filing a petition for judicial review; and

  7.12.3.7 Other information the Presiding Officer deems necessary or appropriate.

  7.12.4 The Presiding Officer's Final Judgment and Order shall be based on the record, as defined in this rule.

  7.12.5 A copy of the Presiding Officer's Final Judgment and Order shall be promptly mailed to each of the parties.

  7.12.6 A well driller who fails to attend a hearing waives any right to request reconsideration of the Final Judgment and Order per Section R655-4-7.13, but may petition for judicial review per Section R655-4-7.16.

  7.13 Reconsideration.

  7.13.1 Within 14 days after the Presiding Officer issues a Final Judgment and Order, any party may file a written request for reconsideration stating the specific grounds upon which relief is requested.

  7.13.2 Unless otherwise provided by statute, the filing of a request for reconsideration is not a prerequisite for seeking judicial review of the order.

  7.13.3 The request for reconsideration shall be filed with the Division to the attention of the Presiding Officer and one copy shall be mailed to each party by the party filing the request.

  7.13.4 The Presiding Officer may issue a written order granting or denying the request for reconsideration. It is not required that the written order explain the grounds for the Presiding Officer's decision.

  7.13.5 If the Presiding Officer does not issue an order granting a request for reconsideration within 14 days after the date it is filed with the Division, the request shall be considered denied.

  7.14 Amending Administrative Orders.

  7.14.1 On the motion of any party or of the Presiding Officer, the Presiding Officer may amend a Final Judgment and Order for reasonable cause shown, including but not limited to a clerical mistake made in the preparation of the order.

  7.14.2 A motion by any party to amend an order shall be made in a reasonable time and, if to amend a Final Judgment and Order, not more than three (3) months after the Final Judgment and Order was issued.

  7.14.3 The Presiding Officer shall notify the parties of the receipt and consideration of a motion to amend an order by issuing a notice. The notice shall include a copy of the motion.

  7.14.4 Any party opposing a motion to amend an order may submit information within the time period to be established by the Presiding Officer's notice of the motion.

  7.14.5 After considering a motion to amend an order and any relevant information received from the parties, the Presiding Officer shall advise the parties of his determination. If the Presiding Officer determines that the order shall be amended, the Presiding Officer shall issue the amended order to all parties.

  7.15 Setting Aside a Final Judgment and Order.

  7.15.1 On the motion of any party or on a motion by the Presiding Officer, the Presiding Officer may set aside a Final Judgment and Order on any reasonable grounds, including but not limited to the following:

  7.15.1.1 The well driller was not properly served with an Infraction Notice;

  7.15.1.2 A rule or policy was not followed when the Final Judgment and Order was issued;

  7.15.1.3 Mistake, inadvertence, excusable neglect;

  7.15.1.4 Newly discovered evidence which by due diligence could not have been discovered before the Presiding officer issued the Final Judgment and Order; or

  7.15.1.5 Fraud, misrepresentation or other misconduct of an adverse party;

  7.15.2 A motion to set aside a final order shall be made in a reasonable time and not more than three (3) months after the Final Judgment and Order was issued.

  7.15.3 The Presiding Officer shall notify the parties of the receipt and consideration of a motion to set aside a final order by issuing a notice to all parties, including therewith a copy of the motion.

  7.15.4 Any party opposing a motion to set aside a final order may submit information within the time period to be established by the Presiding Officer's notice of the motion.

  7.15.4 After consideration of the motion to set aside an order and any information received from the parties, the Presiding Officer shall issue an order granting or denying the motion, and provide a copy of the order to all parties.

  7.16 Judicial Review.

  7.16.1 Pursuant to Section 73-3-14, a Final Judgment and Order may be reviewed by trial de novo by the district court:

  7.16.1.1 In Salt Lake County; or

  7.16.1.2 In the county where the violation occurred.

  7.16.2 A well driller shall file a petition for judicial review of a Final Judgment and Order within 20 days from the day on which the order was issued, or if a request for reconsideration has been filed and denied, within 20 days of the date of denial of the request for reconsideration.

  7.16.3 The Presiding Officer may grant a stay of an order or other temporary remedy during the pendency of the judicial review on the Presiding Officer's own motion, or upon the motion of a party. The procedures for notice, for consideration of motions, and for issuing a determination shall be as set forth herein for a motion to set aside a Final Judgment and Order.