Highlights of Utah Environmental Law

Environmental regulatory programs in Utah are administered primarily by the Utah Department of Environmental Quality ("DEQ"). DEQ administers environmental programs authorized by state statute as well as federal environmental programs for which the state has delegated authority from EPA under the Clean Water Act, the Clean Air Act and the Resource Conservation and Recovery Act. DEQ is organized with a central departmental administration and six divisions with substantive authority over particular environmental areas--the divisions of Air Quality, Drinking Water, Environmental Response and Remediation, Radiation, Solid and Hazardous Waste and Water Quality. For more information regarding the organization of DEQ, see www.deq.ut.us. The executive director of DEQ is authorized to administer and coordinate the Department and its divisions, issue orders to enforce environmental statutes and rules, coordinate and cooperate with other agencies of the state and federal governments and other states, conduct studies and investigations, and publish and disseminate information. DEQ is authorized to coordinate and cooperate with the Utah Department of Health and local health organizations, investigate and control environmental hazards that affect public health, and prescribe environmental quality rules for local health departments. Several divisions within the Utah Department of Natural Resources manage environmentally related programs, including the Divisions of Water Resources, Water Rights, Oil, Gas and Mining, State Lands and Forestry, and Wildlife Resources.

Utah law includes a number of provisions and programs aimed at providing regulatory relief to businesses. Several examples of these are summarized below.

Limits on Stringency of Utah Environmental Regulations. In 1986, the Utah Legislature enacted legislation which prohibits state agencies from adopting environmental regulations more stringent than their federal counterparts for federally delegated environmental programs, unless a specific showing is made, after public comment and hearing, that the federal regulations are not adequate to protect human health and the environment. This legislation is now codified in each of the applicable environmental statutes within the Environmental Quality Code. Utah Code Ann. §§ 19-2-106 (air quality); 19-3-104(9) (radiation control); 19-4-105 (drinking water); 19-5-105 (water quality); and 19-6-106 (hazardous waste). The boards have rarely made the required showing or adopted more stringent regulations.

Utah Voluntary Cleanup Program. In 1997, the Utah Legislature adopted the Voluntary Cleanup Program. See Utah Code Ann. §§ 19-8-101 et seq. All contaminated sites are eligible for the program except for RCRA treatment, storage or disposal sites, National Priorities List sites, and sites for which an administrative, state or federal enforcement action exists or is pending against the applicant for remediation of the contaminants at the site. To participate in the voluntary cleanup program, an applicant must submit an application to DEQ together with an application fee. The application must be on a form provided by the executive director and include specified information about the applicant and the site, including information about the applicant's financial capability, the current and proposed property use, and an environmental assessment of the nature and extent of any contamination at and contiguous to the site and the characteristics and operational history of the site. The DEQ may reject the application if it believes a working relationship cannot be achieved with the applicant, if the site is not eligible, or if the application is determined to be incomplete or inaccurate. The applicant must also enter into a voluntary cleanup agreement with DEQ which provides for review and approval by DEQ of work plans and reports, a schedule for completion, a determination of technical standards, statutes and rules that must be complied with, and for payment to DEQ of oversight costs. An applicant who has entered into a voluntary cleanup agreement is protected from DEQ enforcement actions regarding the contamination or release addressed by the agreement so long as the applicant is in compliance with the terms of the agreement.

Utah Environmental Self-Evaluation Privilege. The Utah Environmental Self-Evaluation Act, Utah Code Ann. 19-7-101 et seq., provides incentives for voluntary identification, disclosure and remediation of compliance problems. DEQ will waive civil penalties for instances of noncompliance (although it may still seek recovery of any economic benefit accrued from the violation, and it may not waive civil penalties where there is lack of due diligence, recurrence of the violation, reckless or willful disregard of environmental laws, or fraud, or DEQ has already initiated a compliance investigation at the time of the disclosure, or disclosure is required by law), provided the regulated entity: (1) discovered its noncompliance through an environmental self-evaluation; (2) disclosed its noncompliance to the DEQ in writing within 21 days after discovery; (3) remedied or corrected its noncompliance within 60 days after discovery, or within a reasonable amount of time if the violation cannot be remedied within 60 days; and (4) submitted to the DEQ a written outline of steps it will take to prevent recurrence of its noncompliance.

Utah One Action Rule. Utah's "One Action Rule" provides regulatory relief to lenders by allowing them to seek recovery directly from the borrower, rather than first foreclosing on real property security, provided that the real property securing the loan is used for other than residential purposes, is "environmentally impaired," the lender did not know of the contamination, and made all appropriate inquiry into the property's prior ownership/uses. See Utah Code Ann. § 78-37-1.5.

Utah Sales Tax Exemption for Pollution Control Expenditures. Under Utah law, materials, equipment, and services used for the construction or installation of pollution control facilities in the State are exempt from sales and use taxes, provided that such facilities are certified by the Division of Air Quality. Utah Code Ann § 19-2-123. Application for certification must be made to the Air Quality Board.