Making Effective Comments on Proposed Rules

It may be helpful when commenting on a proposed rule to consider the agency’s authority to make the rule. Most environmental statutes authorize one of DEQ’s boards to make rules; the boards have only the authority given to them in that statute. The Utah Drinking Water Board, for example, has these authorities:

(1) The board may:

(a) make rules in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act:

(i) establishing standards that prescribe the maximum contaminant levels in any public water system and provide for monitoring, record-keeping, and reporting of water quality related matters;
(ii) governing design, construction, operation, and maintenance of public water systems;
(iii) granting variances and exemptions to the requirements established under this chapter that are not less stringent than those allowed under federal law;
(iv) protecting watersheds and water sources used for public water systems; and
(v) governing capacity development in compliance with Section 1420 of the federal Safe Drinking Water Act, 42 U.S.C.A. 300f et seq.;

. . .

(2) (a) The board may adopt and enforce standards and establish fees for certification of operators of any public water system.

. . .

(4) (a) The board may adopt and enforce standards and establish fees for certification of persons engaged in administering cross connection control programs or backflow prevention assembly training, repair, and maintenance testing.

Utah Code Annotated Sec. 19-4-104. It may also be important to understand limitations on the Board’s authority. These are provisions of the Utah Safe Drinking Water Act:

(2) (a) The board may adopt and enforce standards and establish fees for certification of operators of any public water system.

. . .

(b) The board may not require certification of operators for a water system serving a population of 800 or less except:

(i) to the extent required for compliance with Section 1419 of the federal Safe Drinking Water Act, 42 U.S.C.A. 300f et seq.; and
(ii) for a system that is required to treat its drinking water.

. . .

(3) Routine extensions or repairs of existing public water systems that comply with the rules and do not alter the system’s ability to provide an adequate supply of water are exempt from the provisions of Subsection (1)(d).

Those who comment on proposals for new rules should also be aware of special stringency requirements that apply to most rulemaking. Section 19-2-106 of the Utah Air Conservation Act, for example, states:

(1) Except as provided in Subsection (2), no rule which the board makes for the purpose of administering a program under the federal Clean Air Act may be more stringent than 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 stringent than corresponding federal regulations for the purpose described in Subsection (1), 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. 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.

Similar statutory provisions control rulemaking for most of DEQ’s other programs. Any commenter requesting that a rule be made more stringent than a corresponding federal rule should also consider commenting on a basis for an agency determination that the federal rules are not adequate to protect public health and the environment.

DEQ is usually limited on another side as well. To gain primacy to implement environmental programs within Utah, federal agencies generally require that the State demonstrate that its rules are at least as stringent as corresponding federal regulations.

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