Rep. Norm Thurston — Voting Record

Bill

Number

S.B. 173 (2015GS)

Sponsor

Sen. Adams, J. S.

Final action

Governor Signed 3/31/2015

Outcome

Became law — signed by Gov. Gary R. Herbert

Summary

What it does

• This bill:
• defines terms;
• provides for arbitration or a special adjudicative proceeding for a challenge of a financial assurance determination made by the director of the Division of Radiation Control or the director of the Division of Solid and Hazardous Waste;
• requires the Radiation Control Board to include certain provisions in rules for financial assurance requirements for radioactive waste land disposal facilities; and
• makes technical changes.

Every vote on this bill

Bill text

FINANCIAL ASSURANCE DETERMINATION REVIEW
PROCESS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: J. Stuart Adams
House Sponsor: 
Mike K. McKell
LONG TITLE
General Description:
This bill modifies the Environmental Quality Code by amending provisions for certain
special adjudicative proceedings related to financial assurance and by enacting certain 
rulemaking requirements related to waste disposal.
Highlighted Provisions:
This bill:
▸ defines terms;
▸ provides for arbitration or a special adjudicative proceeding for a challenge of a
financial assurance determination made by the director of the Division of Radiation
Control or the director of the Division of Solid and Hazardous Waste;
▸ requires the Radiation Control Board to include certain provisions in rules for
financial assurance requirements for radioactive waste land disposal facilities; and
▸ makes technical changes.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
19-1-201
, as last amended by Laws of Utah 2012, Chapter 360 and last amended by
Coordination Clause, Laws of Utah 2012, Chapter 360
19-1-301
, as last amended by Laws of Utah 2012, Chapters 333, 360 and last amended
by Coordination Clause, Laws of Utah 2012, Chapter 360
19-1-301.5
, as enacted by Laws of Utah 2012, Chapter 333 and last amended by
Coordination Clause, Laws of Utah 2012, Chapter 360
19-2-108
, as last amended by Laws of Utah 2012, Chapters 333 and 360
19-3-104
, as last amended by Laws of Utah 2012, Chapter 360
63G-4-102
, as last amended by Laws of Utah 2012, Chapter 333
78A-4-103
, as last amended by Laws of Utah 2012, Chapter 333
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
19-1-201
 is amended to read:
19-1-201.
Powers and duties of department -- Rulemaking authority.
(1) The department shall:
(a) enter into cooperative agreements with the Department of Health to delineate
specific responsibilities to assure that assessment and management of risk to human health
from the environment are properly administered;
(b) consult with the Department of Health and enter into cooperative agreements, as
needed, to ensure efficient use of resources and effective response to potential health and safety
threats from the environment, and to prevent gaps in protection from potential risks from the
environment to specific individuals or population groups;
(c) coordinate implementation of environmental programs to maximize efficient use of
resources by developing, with local health departments, a Comprehensive Environmental
Service Delivery Plan that:
(i) recognizes that the department and local health departments are the foundation for
providing environmental health programs in the state;
(ii) delineates the responsibilities of the department and each local health department
for the efficient delivery of environmental programs using federal, state, and local authorities,
responsibilities, and resources;
(iii) provides for the delegation of authority and pass through of funding to local health
departments for environmental programs, to the extent allowed by applicable law, identified in
the plan, and requested by the local health department; and
(iv) is reviewed and updated annually; and
(d) make rules, in accordance with Title 63G, Chapter 3, Utah Administrative
Rulemaking Act, as follows:
(i) for a board created in Section 
19-1-106
, rules regarding:
(A) board meeting attendance; and
(B) conflicts of interest procedures; and
(ii) procedural rules that govern:
(A) an adjudicative proceeding, consistent with Section 
19-1-301
; and
(B) a [
permit review
] 
special
 adjudicative proceeding, consistent with Section
19-1-301.5
.
(2) The department may:
(a) investigate matters affecting the environment;
(b) investigate and control matters affecting the public health when caused by
environmental hazards;
(c) prepare, publish, and disseminate information to inform the public concerning
issues involving environmental quality;
(d) establish and operate programs, as authorized by this title, necessary for protection
of the environment and public health from environmental hazards;
(e) use local health departments in the delivery of environmental health programs to
the extent provided by law;
(f) enter into contracts with local health departments or others to meet responsibilities
established under this title;
(g) acquire real and personal property by purchase, gift, devise, and other lawful
means;
(h) prepare and submit to the governor a proposed budget to be included in the budget
submitted by the governor to the Legislature;
(i) (i) establish a schedule of fees that may be assessed for actions and services of the
department according to the procedures and requirements of Section 
63J-1-504
; and
(ii) in accordance with Section 
63J-1-504
, all fees shall be reasonable, fair, and reflect
the cost of services provided;
(j) prescribe by rule reasonable requirements not inconsistent with law relating to
environmental quality for local health departments;
(k) perform the administrative functions of the boards established by Section 
19-1-106
,
including the acceptance and administration of grants from the federal government and from
other sources, public or private, to carry out the board's functions;
(l) upon the request of any board or a division director, provide professional, technical,
and clerical staff and field and laboratory services, the extent of which are limited by the funds
available to the department for the staff and services; and
(m) establish a supplementary fee, not subject to Section 
63J-1-504
, to provide service
that the person paying the fee agrees by contract to be charged for the service in order to
efficiently utilize department resources, protect department permitting processes, address
extraordinary or unanticipated stress on permitting processes, or make use of specialized
expertise.
(3) In providing service under Subsection (2)(m), the department may not provide
service in a manner that impairs any other person's service from the department.
Section 2. Section 
19-1-301
 is amended to read:
19-1-301.
Adjudicative proceedings.
(1) As used in this section, "dispositive action" means a final agency action that:
(a) the executive director takes following an adjudicative proceeding on a request for
agency action; and
(b) is subject to judicial review under Section 
63G-4-403
.
(2) This section governs adjudicative proceedings that are not [
permit review
] 
special
adjudicative proceedings as defined in Section 
19-1-301.5
.
(3) (a) The department and its boards shall comply with the procedures and
requirements of Title 63G, Chapter 4, Administrative Procedures Act.
(b) The procedures for an adjudicative proceeding conducted by an administrative law
judge are governed by:
(i) Title 63G, Chapter 4, Administrative Procedures Act;
(ii) this title;
(iii) rules adopted by the department under:
(A) Subsection 
63G-4-102
(6); or
(B) this title; and
(iv) the Utah Rules of Civil Procedure, in the absence of a procedure established under
Subsection (3)(b)(i), (ii), or (iii).
(4) Except as provided in Section 
19-2-113
, an administrative law judge shall hear a
party's request for agency action.
(5) The executive director shall appoint an administrative law judge who:
(a) is a member in good standing of the Utah State Bar;
(b) has a minimum of:
(i) 10 years of experience practicing law; and
(ii) five years of experience practicing in the field of:
(A) environmental compliance;
(B) natural resources;
(C) regulation by an administrative agency; or
(D) a field related to a field listed in Subsections (5)(b)(ii)(A) through (C); and
(c) has a working knowledge of the federal laws and regulations and state statutes and
rules applicable to a request for agency action.
(6) In appointing an administrative law judge who meets the qualifications described in
Subsection (5), the executive director may:
(a) compile a list of persons who may be engaged as an administrative law judge pro
tempore by mutual consent of the parties to an adjudicative proceeding;
(b) appoint an assistant attorney general as an administrative law judge pro tempore; or
(c) (i) appoint an administrative law judge as an employee of the department; and
(ii) assign the administrative law judge responsibilities in addition to conducting an
adjudicative proceeding.
(7) (a) An administrative law judge:
(i) shall conduct an adjudicative proceeding;
(ii) may take any action that is not a dispositive action; and
(iii) shall submit to the executive director a proposed dispositive action, including:
(A) written findings of fact;
(B) written conclusions of law; and
(C) a recommended order.
(b) The executive director may:
(i) approve, approve with modifications, or disapprove a proposed dispositive action
submitted to the executive director under Subsection (7)(a); or
(ii) return the proposed dispositive action to the administrative law judge for further
action as directed.
(c) In making a decision regarding a dispositive action, the executive director may seek
the advice of, and consult with:
(i) the assistant attorney general assigned to the department; or
(ii) a special master who:
(A) is appointed by the executive director; and
(B) is an expert in the subject matter of the proposed dispositive action.
(d) The executive director shall base a final dispositive action on the record of the
proceeding before the administrative law judge.
(8) To conduct an adjudicative proceeding, an administrative law judge may:
(a) compel:
(i) the attendance of a witness; and
(ii) the production of a document or other evidence;
(b) administer an oath;
(c) take testimony; and
(d) receive evidence as necessary.
(9) A party may appear before an administrative law judge in person, through an agent
or employee, or as provided by department rule.
(10) (a) An administrative law judge or the executive director may not participate in an
ex parte communication with a party to an adjudicative proceeding regarding the merits of the
adjudicative proceeding unless notice and an opportunity to be heard are afforded to all parties.
(b) If an administrative law judge or the executive director receives an ex parte
communication, the person who receives the ex parte communication shall place the
communication into the public record of the proceedings and afford all parties an opportunity
to comment on the information.
(11) Nothing in this section limits a party's right to an adjudicative proceeding under
Title 63G, Chapter 4, Administrative Procedures Act.
Section 3. Section 
19-1-301.5
 is amended to read:
19-1-301.5.
Permit review and financial assurance determination special
adjudicative proceedings.
(1) As used in this section:
(a) "Dispositive action" means a final agency action that:
(i) the executive director takes as part of a [
permit review
] 
special
 adjudicative
proceeding; and
(ii) is subject to judicial review, in accordance with Subsection (14).
(b) "Dispositive motion" means a motion that is equivalent to:
(i) a motion to dismiss under Utah Rules of Civil Procedure, Rule 12(b)(6);
(ii) a motion for judgment on the pleadings under Utah Rules of Civil Procedure, Rule
12(c); or
(iii) a motion for summary judgment under Utah Rules of Civil Procedure, Rule 56.
(c) "Financial assurance determination" means a decision on whether a facility, site,
plan, party, broker, owner, operator, generator, or permittee has met financial assurance or
financial responsibility requirements as determined by the director of the:
(i) Division of Radiation Control under Subsection 
19-3-104
(12); or
(ii) Division of Solid and Hazardous Waste under Subsection 
19-6-108
(9)(c).
[
(c)
] 
(d)
 "Party" means:
(i) the director who issued the permit order 
or financial assurance determination that is
being challenged in the [
permit review
] 
special
 adjudicative proceeding 
under this section
;
(ii) the permittee;
(iii) the person who applied for the permit, if the permit was denied; [
or
]
(iv) the person who is subject to a financial assurance determination; or
[
(iv)
] 
(v)
 a person granted intervention by the administrative law judge.
[
(d)
] 
(e)
 "Permit" means any of the following issued under this title:
(i) a permit;
(ii) a plan;
(iii) a license;
(iv) an approval order; or
(v) another administrative authorization made by a director.
[
(e)
] 
(f)
 (i) "Permit order" means an order issued by a director that:
(A) approves a permit;
(B) renews a permit;
(C) denies a permit;
(D) modifies or amends a permit; or
(E) revokes and reissues a permit.
(ii) "Permit order" does not include an order terminating a permit.
[
(f) "Permit review adjudicative proceeding" means a proceeding to resolve a challenge
to a permit order.
]
(g) "Special adjudicative proceeding" means a proceeding under this section to resolve
a challenge to a:
(i) permit order; or
(ii) financial assurance determination.
(2) This section governs [
permit review
] 
special
 adjudicative proceedings.
(3) Except as expressly provided in this section, the provisions of Title 63G, Chapter 4,
Administrative Procedures Act, do not apply to a [
permit review
] 
special
 adjudicative
proceeding 
under this section
.
(4) If a public comment period was provided during the permit application process 
or
the financial assurance determination process
, a person who challenges [
a permit order,
including the permit applicant,
] 
an order, application, or determination
 may only raise an issue
or argument during the [
permit review
] 
special
 adjudicative proceeding that:
(a) the person raised during the public comment period; and
(b) was supported with sufficient information or documentation to enable the director
to fully consider the substance and significance of the issue.
(5) The executive director shall appoint an administrative law judge, in accordance
with Subsections 
19-1-301
(5) and (6), to conduct a [
permit review
] 
special
 adjudicative
proceeding 
under this section
.
(6) (a) Only the following may file a request for agency action seeking review of a
permit order 
or a financial assurance determination
:
(i) a party; or
(ii) a person who is seeking to intervene under Subsection (7).
(b) A person who files a request for agency action seeking review of a permit order 
or a
financial assurance determination
 shall file the request:
(i) within 30 days after the day on which the permit order 
or the financial assurance
determination
 is issued; and
(ii) in accordance with Subsections 
63G-4-201
(3)(a) through (c).
(c) A person may not raise an issue or argument in a request for agency action unless
the issue or argument:
(i) was preserved in accordance with Subsection (4); or
(ii) was not reasonably ascertainable before or during the public comment period.
(d) The department may, in accordance with Title 63G, Chapter 3, Utah Administrative
Rulemaking Act, make rules allowing the extension of the filing deadline described in
Subsection (6)(b)(i).
(7) (a) A person who is not a party may not participate in a [
permit review
] 
special
adjudicative proceeding 
under this section
 unless the person is granted the right to intervene
under this Subsection (7).
(b) A person who seeks to intervene in a [
permit review
] 
special
 adjudicative
proceeding under this section shall, within 30 days after the day on which the permit order 
or
the financial assurance determination
 being challenged was issued, file:
(i) a petition to intervene that:
(A) meets the requirements of Subsection 
63G-4-207
(1); and
(B) demonstrates that the person is entitled to intervention under Subsection (7)(c)(ii);
and
(ii) a timely request for agency action.
(c) An administrative law judge shall grant a petition to intervene in a [
permit review
]
special
 adjudicative proceeding, if:
(i) the petition to intervene is timely filed; and
(ii) the petitioner:
(A) demonstrates that the petitioner's legal interests may be substantially affected by
the [
permit review
] 
special
 adjudicative proceeding;
(B) demonstrates that the interests of justice and the orderly and prompt conduct of the
[
permit review
] 
special
 adjudicative proceeding will not be materially impaired by allowing the
intervention; and
(C) in the petitioner's request for agency action, raises issues or arguments that are
preserved in accordance with Subsection (4).
(d) An administrative law judge:
(i) shall issue an order granting or denying a petition to intervene in accordance with
Subsection 
63G-4-207
(3)(a); and
(ii) may impose conditions on intervenors as described in Subsections 
63G-4-207
(3)(b)
and (c).
(e) The department may, in accordance with Title 63G, Chapter 3, Utah Administrative
Rulemaking Act, make rules allowing the extension of the filing deadline described in
Subsection (7)(b).
(8) (a) An administrative law judge shall conduct a [
permit review
] 
special
adjudicative proceeding based only on the administrative record and not as a trial de novo.
(b) To the extent relative to the issues and arguments raised in the request for agency
action, the administrative record shall consist of the following items, if they exist:
(i) 
(A) for a permit review,
 the permit application, draft permit, and final permit; 
or
(B) for a financial assurance determination review, the proposed financial assurance
determination from the owner or operator of the facility, the draft financial assurance
determination, and the final financial assurance determination;
(ii) each statement of basis, fact sheet, engineering review, or other substantive
explanation designated by the director as part of the basis for the decision relating to the permit
order 
or the financial assurance determination
;
(iii) the notice and record of each public comment period;
(iv) the notice and record of each public hearing, including oral comments made during
the public hearing;
(v) written comments submitted during the public comment period;
(vi) responses to comments that are designated by the director as part of the basis for
the decision relating to the permit order 
or the financial assurance determination
;
(vii) any information that is:
(A) requested by and submitted to the director; and
(B) designated by the director as part of the basis for the decision relating to the permit
order 
or the financial assurance determination
;
(viii) any additional information specified by rule;
(ix) any additional documents agreed to by the parties; and
(x) information supplementing the record under Subsection (8)(c).
(c) (i) There is a rebuttable presumption against supplementing the record.
(ii) A party may move to supplement the record described in Subsection (8)(b) with
technical or factual information.
(iii) The administrative law judge may grant a motion to supplement the record
described in Subsection (8)(b) with technical or factual information if the moving party proves
that:
(A) good cause exists for supplementing the record;
(B) supplementing the record is in the interest of justice; and
(C) supplementing the record is necessary for resolution of the issues.
(iv) The administrative law judge may supplement the record with technical or factual
information on the administrative law judge's own motion if the administrative law judge
determines that adequate grounds exist to supplement the record under Subsections
(8)(c)(iii)(A) through (C).
(v) In supplementing the record with testimonial evidence, the administrative law judge
may administer an oath or take testimony as necessary.
(vi) The department may, in accordance with Title 63G, Chapter 3, Utah
Administrative Rulemaking Act, make rules permitting further supplementation of the record.
(9) (a) The administrative law judge shall review and respond to a request for agency
action in accordance with Subsections 
63G-4-201
(3)(d) and (e), following the relevant
procedures for formal adjudicative proceedings.
(b) The administrative law judge shall require the parties to file responsive pleadings in
accordance with Section 
63G-4-204
.
(c) If an administrative law judge enters an order of default against a party, the
administrative law judge shall enter the order of default in accordance with Section 
63G-4-209
,
following the relevant procedures for formal adjudicative proceedings.
(d) The administrative law judge, in conducting a [
permit review
] 
special
 adjudicative
proceeding:
(i) may not participate in an ex parte communication with a party to the [
permit
review
] 
special
 adjudicative proceeding regarding the merits of the [
permit review
] 
special
adjudicative proceeding unless notice and an opportunity to be heard are afforded to all parties;
and
(ii) shall, upon receiving an ex parte communication, place the communication in the
public record of the proceeding and afford all parties an opportunity to comment on the
information.
(e) In conducting a [
permit review
] 
special
 adjudicative proceeding, the administrative
law judge may take judicial notice of matters not in the administrative record, in accordance
with Utah Rules of Evidence, Rule 201.
(f) An administrative law judge may take any action in a [
permit review
] 
special
adjudicative proceeding that is not a dispositive action.
(10) (a) A person who files a request for agency action has the burden of demonstrating
that an issue or argument raised in the request for agency action has been preserved in
accordance with Subsection (4).
(b) The administrative law judge shall dismiss, with prejudice, any issue or argument
raised in a request for agency action that has not been preserved in accordance with Subsection
(4).
(11) In response to a dispositive motion, the administrative law judge may submit a
proposed dispositive action to the executive director recommending full or partial resolution of
the [
permit review
] 
special
 adjudicative proceeding, that includes:
(a) written findings of fact;
(b) written conclusions of law; and
(c) a recommended order.
(12) For each issue or argument that is not dismissed or otherwise resolved under
Subsection (10)(b) or (11), the administrative law judge shall:
(a) provide the parties an opportunity for briefing and oral argument;
(b) conduct a review of the director's 
order or
 determination, based on the record
described in Subsections (8)(b), (8)(c), and (9)(e); and
(c) submit to the executive director a proposed dispositive action, that includes:
(i) written findings of fact;
(ii) written conclusions of law; and
(iii) a recommended order.
(13) (a) When the administrative law judge submits a proposed dispositive action to
the executive director, the executive director may:
(i) adopt, adopt with modifications, or reject the proposed dispositive action; or
(ii) return the proposed dispositive action to the administrative law judge for further
action as directed.
(b) On review of a proposed dispositive action, the executive director shall uphold all
factual, technical, and scientific agency determinations that are supported by substantial
evidence taken from the record as a whole.
(c) (i) The executive director may not participate in an ex parte communication with a
party to the [
permit review
] 
special
 adjudicative proceeding regarding the merits of the [
permit
review
] 
special
 adjudicative proceeding unless notice and an opportunity to be heard are
afforded to all parties.
(ii) Upon receiving an ex parte communication, the executive director shall place the
communication in the public record of the proceeding and afford all parties an opportunity to
comment on the information.
(d) In reviewing a proposed dispositive action during a [
permit review
] 
special
adjudicative proceeding, the executive director may take judicial notice of matters not in the
record, in accordance with Utah Rules of Evidence, Rule 201.
(e) The executive director may use the executive director's technical expertise in
making a determination.
(14) (a) A party may seek judicial review in the Utah Court of Appeals of a dispositive
action in a [
permit review
] 
special
 adjudicative proceeding, in accordance with Sections
63G-4-401
, 
63G-4-403
, and 
63G-4-405
.
(b) An appellate court shall limit its review of a dispositive action of a [
permit review
]
special
 adjudicative proceeding 
under this section
 to:
(i) the record described in Subsections (8)(b), (8)(c), (9)(e), and (13)(d); and
(ii) the record made by the administrative law judge and the executive director during
the [
permit review
] 
special
 adjudicative proceeding.
(c) During judicial review of a dispositive action, the appellate court shall:
(i) review all agency determinations in accordance with Subsection 
63G-4-403
(4),
recognizing that the agency has been granted substantial discretion to interpret its governing
statutes and rules; and
(ii) uphold all factual, technical, and scientific agency determinations that are
supported by substantial evidence viewed in light of the record as a whole.
(15) (a) The filing of a request for agency action does not
:
(i)
 stay a permit 
order or a financial assurance determination;
 or
(ii)
 delay the effective date of a permit 
order or a financial assurance determination
.
(b) A permit 
order or a financial assurance determination
 may not be stayed or delayed
unless a stay is granted under this Subsection (15).
(c) The administrative law judge shall:
(i) consider a party's motion to stay a permit 
order or a financial assurance
determination
 during a [
permit review
] 
special
 adjudicative proceeding; and
(ii) submit a proposed determination on the stay to the executive director.
(d) The administrative law judge may not recommend to the executive director a stay
of a permit 
order or a financial assurance determination
, or a portion of a permit 
order or a
portion of a financial assurance determination
, unless:
(i) all parties agree to the stay; or
(ii) the party seeking the stay demonstrates that:
(A) the party seeking the stay will suffer irreparable harm unless the stay is issued;
(B) the threatened injury to the party seeking the stay outweighs whatever damage the
proposed stay is likely to cause the party restrained or enjoined;
(C) the stay, if issued, would not be adverse to the public interest; and
(D) there is a substantial likelihood that the party seeking the stay will prevail on the
merits of the underlying claim, or the case presents serious issues on the merits, which should
be the subject of further adjudication.
(e) A party may appeal the executive director's decision regarding a stay of a permit
order or a financial assurance determination
 to the Utah Court of Appeals, in accordance with
Section 
78A-4-103
.
Section 4. Section 
19-2-108
 is amended to read:
19-2-108.
Notice of construction or modification of installations required --
Authority of director to prohibit construction -- Hearings -- Limitations on authority of
director -- Inspections authorized.
(1) Notice shall be given to the director by any person planning to construct a new
installation which will or might reasonably be expected to be a source or indirect source of air
pollution or to make modifications to an existing installation which will or might reasonably be
expected to increase the amount of or change the character or effect of air contaminants
discharged, so that the installation may be expected to be a source or indirect source of air
pollution, or by any person planning to install an air cleaning device or other equipment
intended to control emission of air contaminants.
(2) (a) (i) The director may require, as a condition precedent to the construction,
modification, installation, or establishment of the air contaminant source or indirect source, the
submission of plans, specifications, and other information as he finds necessary to determine
whether the proposed construction, modification, installation, or establishment will be in
accord with applicable rules in force under this chapter.
(ii) Plan approval for an indirect source may be delegated by the director to a local
authority when requested and upon assurance that the local authority has and will maintain
sufficient expertise to insure that the planned installation will meet the requirements
established by law.
(b) If within 90 days after the receipt of plans, specifications, or other information
required under this subsection, the director determines that the proposed construction,
installation, or establishment or any part of it will not be in accord with the requirements of this
chapter or applicable rules or that further time, not exceeding three extensions of 30 days each,
is required by the director to adequately review the plans, specifications, or other information,
he shall issue an order prohibiting the construction, installation, or establishment of the air
contaminant source or sources in whole or in part.
(3) In addition to any other remedies 
but prior to invoking any such other remedies
, any
person aggrieved by the issuance of an order either granting or denying a request for the
construction of a new installation, [
and prior to invoking any such other remedies
] shall, upon
request, in accordance with the rules of the department, be entitled to a [
permit review
] 
special
adjudicative proceeding conducted by an administrative law judge as provided by Section
19-1-301.5
.
(4) Any features, machines, and devices constituting parts of or called for by plans,
specifications, or other information submitted under Subsection (1) shall be maintained in good
working order.
(5) This section does not authorize the director to require the use of machinery,
devices, or equipment from a particular supplier or produced by a particular manufacturer if the
required performance standards may be met by machinery, devices, or equipment otherwise
available.
(6) (a) Any authorized officer, employee, or representative of the director may enter
and inspect any property, premise, or place on or at which an air contaminant source is located
or is being constructed, modified, installed, or established at any reasonable time for the
purpose of ascertaining the state of compliance with this chapter and the rules adopted under it.
(b) (i) A person may not refuse entry or access to any authorized representative of the
director who requests entry for purposes of inspection and who presents appropriate
credentials.
(ii) A person may not obstruct, hamper, or interfere with any inspection.
(c) If requested, the owner or operator of the premises shall receive a report setting
forth all facts found which relate to compliance status.
Section 5. Section 
19-3-104
 is amended to read:
19-3-104.
Registration and licensing of radiation sources by department --
Assessment of fees -- Rulemaking authority and procedure -- Siting criteria -- Indirect
and direct costs.
(1) As used in this section:
(a) "Decommissioning" includes financial assurance.
(b) "Source material" and "byproduct material" have the same definitions as in 
the
Atomic Energy Act of 1954,
U.S.C.[
A
] 
Sec
. 2014, [
Atomic Energy Act of 1954,
] as
amended.
(2) The division may require the registration or licensing of radiation sources that
constitute a significant health hazard.
(3) All sources of ionizing radiation, including ionizing radiation producing machines,
shall be registered or licensed by the department.
(4) [
The
] 
In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking
Act, the
 board may make rules:
(a) necessary for controlling exposure to sources of radiation that constitute a
significant health hazard;
(b) to meet the requirements of federal law relating to radiation control to ensure the
radiation control program under this part is qualified to maintain primacy from the federal
government;
(c) to establish:
(i) board accreditation requirements and procedures for mammography facilities; and
(ii) certification procedure and qualifications for persons who survey mammography
equipment and oversee quality assurance practices at mammography facilities; and
(d) as necessary regarding the possession, use, transfer, or delivery of source and
byproduct material and the disposal of byproduct material to establish requirements for:
(i) the licensing, operation, decontamination, and decommissioning, including financial
assurances; and
(ii) the reclamation of sites, structures, and equipment used in conjunction with the
activities described in this Subsection (4).
(5) (a) On and after January 1, 2003, a fee is imposed for the regulation of source and
byproduct material and the disposal of byproduct material at uranium mills or commercial
waste facilities, as provided in this Subsection (5).
(b) On and after January 1, 2003
,
 through March 30, 2003:
(i) $6,667 per month for uranium mills or commercial sites disposing of or
reprocessing byproduct material; and
(ii) $4,167 per month for those uranium mills the director has determined are on
standby status.
(c) On and after March 31, 2003
,
 through June 30, 2003
,
 the same fees as in
Subsection (5)(b) apply, but only if the federal Nuclear Regulatory Commission grants to Utah
an amendment for agreement state status for uranium recovery regulation on or before March
30, 2003.
(d) If the Nuclear Regulatory Commission does not grant the amendment for state
agreement status on or before March 30, 2003, fees under Subsection (5)(e) do not apply and
are not required to be paid until on and after the later date of:
(i) October 1, 2003; or
(ii) the date the Nuclear Regulatory Commission grants to Utah an amendment for
agreement state status for uranium recovery regulation.
(e) For the payment periods beginning on and after July 1, 2003, the department shall
establish the fees required under Subsection (5)(a) under Section 
63J-1-504
, subject to the
restrictions under Subsection (5)(d).
(f) The division shall deposit fees it receives under this Subsection (5) into the
Environmental Quality Restricted Account created in Section 
19-1-108
.
(6) (a) The division shall assess fees for registration, licensing, and inspection of
radiation sources under this section.
(b) The division shall comply with the requirements of Section 
63J-1-504
 in assessing
fees for licensure and registration.
(7) The division shall coordinate its activities with the Department of Health rules
made under Section 
26-21a-203
.
(8) (a) Except as provided in Subsection (9), 
and in accordance with Title 63G,
Chapter 3, Utah Administrative Rulemaking Act,
 the board may not adopt rules, for the
purpose of the state assuming responsibilities from the United States Nuclear Regulatory
Commission with respect to regulation of sources of ionizing radiation, that are more stringent
than the corresponding federal regulations which address the same circumstances.
(b) In adopting those rules, the board may incorporate corresponding federal
regulations by reference.
(9) (a) The board may adopt rules more stringent than corresponding federal
regulations for the purpose described in Subsection (8) only if it makes a written finding after
public comment and hearing and based on evidence in the record that corresponding federal
regulations are not adequate to protect public health and the environment of the state.
(b) 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.
(10) (a) [
The
] 
In accordance with Title 63G, Chapter 3, Utah Administrative
Rulemaking Act, the
 board shall by rule:
(i) authorize independent qualified experts to conduct inspections required under this
chapter of x-ray facilities registered with the division; and
(ii) establish qualifications and certification procedures necessary for independent
experts to conduct these inspections.
(b) Independent experts under this Subsection (10) are not considered employees or
representatives of the division or the state when conducting the inspections.
(11) (a) [
The
] 
In accordance with Title 63G, Chapter 3, Utah Administrative
Rulemaking Act, the
 board may by rule establish criteria for siting commercial low-level
radioactive waste treatment or disposal facilities, subject to the prohibition imposed by Section
19-3-103.7
.
(b) Subject to Subsection 
19-3-105
(10), any facility under Subsection (11)(a) for which
a radioactive material license is required by this section shall comply with those criteria.
(c) Subject to Subsection 
19-3-105
(10), a facility may not receive a radioactive
material license until siting criteria have been established by the board. The criteria also apply
to facilities that have applied for but not received a radioactive material license.
(12) [
The board shall by rule establish
] 
In accordance with Title 63G, Chapter 3, Utah
Administrative Rulemaking Act, the board shall make rules that establish
 financial assurance
requirements for closure and postclosure care of radioactive waste land disposal facilities[
,
taking into account existing financial assurance requirements
].
(13) The rules described in Subsection (12) shall include the following provisions:
(a) the financial assurance shall be based on an annual calculation and shall include the
costs of closure and postclosure care of radioactive waste land disposal facilities in all areas
subject to the licensed or permitted portions of the facility;
(b) financial assurance for closing the areas within the disposal embankments shall be
limited to the cost of closing areas where waste has been disposed; and
(c) at the option of the licensee or permittee, the financial assurance requirements shall
be based on:
(i) an annual calculation using the current edition of RS Means Facilities Construction
Cost Data or using a process, including an indirect cost multiplier, previously agreed to
between the licensee or permittee and the director; or
(ii) (A) for an initial financial assurance determination and for each financial assurance
determination every five years thereafter, a competitive site-specific bid for closure and
postclosure care of the facility at least once every five years; and
(B) for each year between a financial assurance determination as described in
Subsection (13)(c)(ii)(A), an annual inflation adjustment to the financial assurance
determination using the Gross Domestic Product Implicit Price Deflator of the Bureau of
Economic Analysis, United States Department of Commerce, calculated by dividing the latest
annual deflator by the deflator for the previous year.
(14) Subject to the financial assurance requirements described in Subsections (12) and
(13), if the director and the licensee or permittee do not agree on a final financial assurance
determination made by the director, the licensee or permittee may appeal the determination in:
(a) an arbitration proceeding governed by Title 78B, Chapter 11, Utah Uniform
Arbitration Act, with the costs of the arbitration to be split equally between the licensee or
permittee and the division, if both the licensee or permittee and the director agree in writing to
arbitration; or
(b) a special adjudicative proceeding under Section 
19-1-301.5
.
Section 6. Section 
63G-4-102
 is amended to read:
63G-4-102.
Scope and applicability of chapter.
(1) Except as set forth in Subsection (2), and except as otherwise provided by a statute
superseding provisions of this chapter by explicit reference to this chapter, the provisions of
this chapter apply to every agency of the state and govern:
(a) state agency action that determines the legal rights, duties, privileges, immunities,
or other legal interests of an identifiable person, including agency action to grant, deny, revoke,
suspend, modify, annul, withdraw, or amend an authority, right, or license; and
(b) judicial review of the action.
(2) This chapter does not govern:
(a) the procedure for making agency rules, or judicial review of the procedure or rules;
(b) the issuance of a notice of a deficiency in the payment of a tax, the decision to
waive a penalty or interest on taxes, the imposition of and penalty or interest on taxes, or the
issuance of a tax assessment, except that this chapter governs an agency action commenced by
a taxpayer or by another person authorized by law to contest the validity or correctness of the
action;
(c) state agency action relating to extradition, to the granting of a pardon or parole, a
commutation or termination of a sentence, or to the rescission, termination, or revocation of
parole or probation, to the discipline of, resolution of a grievance of, supervision of,
confinement of, or the treatment of an inmate or resident of a correctional facility, the Utah
State Hospital, the Utah State Developmental Center, or a person in the custody or jurisdiction
of the Division of Substance Abuse and Mental Health, or a person on probation or parole, or
judicial review of the action;
(d) state agency action to evaluate, discipline, employ, transfer, reassign, or promote a
student or teacher in a school or educational institution, or judicial review of the action;
(e) an application for employment and internal personnel action within an agency
concerning its own employees, or judicial review of the action;
(f) the issuance of a citation or assessment under Title 34A, Chapter 6, Utah
Occupational Safety and Health Act, and Title 58, Occupations and Professions, except that
this chapter governs an agency action commenced by the employer, licensee, or other person
authorized by law to contest the validity or correctness of the citation or assessment;
(g) state agency action relating to management of state funds, the management and
disposal of school and institutional trust land assets, and contracts for the purchase or sale of
products, real property, supplies, goods, or services by or for the state, or by or for an agency of
the state, except as provided in those contracts, or judicial review of the action;
(h) state agency action under Title 7, Chapter 1, Part 3, Powers and Duties of
Commissioner of Financial Institutions, Title 7, Chapter 2, Possession of Depository Institution
by Commissioner, Title 7, Chapter 19, Acquisition of Failing Depository Institutions or
Holding Companies, and Title 63G, Chapter 7, Governmental Immunity Act of Utah, or
judicial review of the action;
(i) the initial determination of a person's eligibility for unemployment benefits, the
initial determination of a person's eligibility for benefits under Title 34A, Chapter 2, Workers'
Compensation Act, and Title 34A, Chapter 3, Utah Occupational Disease Act, or the initial
determination of a person's unemployment tax liability;
(j) state agency action relating to the distribution or award of a monetary grant to or
between governmental units, or for research, development, or the arts, or judicial review of the
action;
(k) the issuance of a notice of violation or order under Title 26, Chapter 8a, Utah
Emergency Medical Services System Act, Title 19, Chapter 2, Air Conservation Act, Title 19,
Chapter 3, Radiation Control Act, Title 19, Chapter 4, Safe Drinking Water Act, Title 19,
Chapter 5, Water Quality Act, Title 19, Chapter 6, Part 1, Solid and Hazardous Waste Act,
Title 19, Chapter 6, Part 4, Underground Storage Tank Act, or Title 19, Chapter 6, Part 7, Used
Oil Management Act, or Title 19, Chapter 6, Part 10, Mercury Switch Removal Act, except
that this chapter governs an agency action commenced by a person authorized by law to contest
the validity or correctness of the notice or order;
(l) state agency action, to the extent required by federal statute or regulation, to be
conducted according to federal procedures;
(m) the initial determination of a person's eligibility for government or public
assistance benefits;
(n) state agency action relating to wildlife licenses, permits, tags, and certificates of
registration;
(o) a license for use of state recreational facilities;
(p) state agency action under Title 63G, Chapter 2, Government Records Access and
Management Act, except as provided in Section 
63G-2-603
;
(q) state agency action relating to the collection of water commissioner fees and
delinquency penalties, or judicial review of the action;
(r) state agency action relating to the installation, maintenance, and repair of headgates,
caps, values, or other water controlling works and weirs, flumes, meters, or other water
measuring devices, or judicial review of the action;
(s) the issuance and enforcement of an initial order under Section 
73-2-25
;
(t) (i) a hearing conducted by the Division of Securities under Section 
61-1-11.1
; and
(ii) an action taken by the Division of Securities [
pursuant to
] 
under
 a hearing
conducted under Section 
61-1-11.1
, including a determination regarding the fairness of an
issuance or exchange of securities described in Subsection 
61-1-11.1
(1); and
(u) state agency action relating to water well driller licenses, water well drilling
permits, water well driller registration, or water well drilling construction standards, or judicial
review of the action.
(3) This chapter does not affect a legal remedy otherwise available to:
(a) compel an agency to take action; or
(b) challenge an agency's rule.
(4) This chapter does not preclude an agency, prior to the beginning of an adjudicative
proceeding, or the presiding officer during an adjudicative proceeding from:
(a) requesting or ordering a conference with parties and interested persons to:
(i) encourage settlement;
(ii) clarify the issues;
(iii) simplify the evidence;
(iv) facilitate discovery; or
(v) expedite the proceeding; or
(b) granting a timely motion to dismiss or for summary judgment if the requirements of
Rule 12(b) or Rule 56 of the Utah Rules of Civil Procedure are met by the moving party,
except to the extent that the requirements of those rules are modified by this chapter.
(5) (a) A declaratory proceeding authorized by Section 
63G-4-503
 is not governed by
this chapter, except as explicitly provided in that section.
(b) Judicial review of a declaratory proceeding authorized by Section 
63G-4-503
 is
governed by this chapter.
(6) This chapter does not preclude an agency from enacting a rule affecting or
governing an adjudicative proceeding or from following the rule, if the rule is enacted
according to the procedures outlined in Title 63G, Chapter 3, Utah Administrative Rulemaking
Act, and if the rule conforms to the requirements of this chapter.
(7) (a) If the attorney general issues a written determination that a provision of this
chapter would result in the denial of funds or services to an agency of the state from the federal
government, the applicability of the provision to that agency shall be suspended to the extent
necessary to prevent the denial.
(b) The attorney general shall report the suspension to the Legislature at its next
session.
(8) Nothing in this chapter may be interpreted to provide an independent basis for
jurisdiction to review final agency action.
(9) Nothing in this chapter may be interpreted to restrict a presiding officer, for good
cause shown, from lengthening or shortening a time period prescribed in this chapter, except
the time period established for judicial review.
(10) Notwithstanding any other provision of this section, this chapter does not apply to
a [
permit review
] 
special
 adjudicative proceeding, as defined in Section 
19-1-301.5
, except to
the extent expressly provided in Section 
19-1-301.5
.
Section 7. Section 
78A-4-103
 is amended to read:
78A-4-103.
Court of Appeals jurisdiction.
(1) The Court of Appeals has jurisdiction to issue all extraordinary writs and to issue
all writs and process necessary:
(a) to carry into effect its judgments, orders, and decrees; or
(b) in aid of its jurisdiction.
(2) The Court of Appeals has appellate jurisdiction, including jurisdiction of
interlocutory appeals, over:
(a) (i) a final order or decree resulting from:
(A) a formal adjudicative proceeding of a state agency; or
(B) a [
permit review
] 
special
 adjudicative proceeding, as [
defined
] 
described
 in Section
19-1-301.5
; or
(ii) an appeal from the district court review of an informal adjudicative proceeding of
an agency other than the following:
(A) the Public Service Commission;
(B) the State Tax Commission;
(C) the School and Institutional Trust Lands Board of Trustees;
(D) the Division of Forestry, Fire, and State Lands, for an action reviewed by the
executive director of the Department of Natural Resources;
(E) the Board of Oil, Gas, and Mining; or
(F) the state engineer;
(b) appeals from the district court review of:
(i) adjudicative proceedings of agencies of political subdivisions of the state or other
local agencies; and
(ii) a challenge to agency action under Section 
63G-3-602
;
(c) appeals from the juvenile courts;
(d) interlocutory appeals from any court of record in criminal cases, except those
involving a charge of a first degree or capital felony;
(e) appeals from a court of record in criminal cases, except those involving a
conviction or charge of a first degree felony or capital felony;
(f) appeals from orders on petitions for extraordinary writs sought by persons who are
incarcerated or serving any other criminal sentence, except petitions constituting a challenge to
a conviction of or the sentence for a first degree or capital felony;
(g) appeals from the orders on petitions for extraordinary writs challenging the
decisions of the Board of Pardons and Parole except in cases involving a first degree or capital
felony;
(h) appeals from district court involving domestic relations cases, including, but not
limited to, divorce, annulment, property division, child custody, support, parent-time,
visitation, adoption, and paternity;
(i) appeals from the Utah Military Court; and
(j) cases transferred to the Court of Appeals from the Supreme Court.
(3) The Court of Appeals upon its own motion only and by the vote of four judges of
the court may certify to the Supreme Court for original appellate review and determination any
matter over which the Court of Appeals has original appellate jurisdiction.
(4) The Court of Appeals shall comply with the requirements of Title 63G, Chapter 4,
Administrative Procedures Act, in its review of agency adjudicative proceedings.