The reimbursement and spending authority will come from funds deposited into the General Fund by the department as the result of qualifying civil penalties or criminal fines recovered by the department per Subsection 19-1-303(5).
C. Small businesses ("small business" means a business employing 1-49 persons):
This rule is not expected to have any impact on small businesses' revenues or expenditures because businesses are not subject to this rule.
D. Non-small businesses ("non-small business" means a business employing 50 or more persons):
This rule is not expected to have any impact on non-small businesses' revenues or expenditures because businesses are not subject to this rule.
E. Persons other than small businesses, non-small businesses, state, or local government entities ("person" means any individual, partnership, corporation, association, governmental entity, or public or private organization of any character other than an agency):
This rule is not expected to have any impact on revenues or expenditures on persons other than state and local government entities, as only state and local government entities are subject to this rule.
F. Compliance costs for affected persons:
There will not be a cost for an entity to adhere to this rule or changes.
Requesting reimbursement under this rule is voluntary for any entity, and both ordinary and extraordinary enforcement activities are already conducted by the department, local health departments, and other local governments.
G. Regulatory Impact Summary Table (This table includes only fiscal impacts the agency was able to measure. If the agency could not estimate an impact, it is excluded from this table but described in boxes A through F.)
Regulatory Impact Summary Table
H. Department head comments on fiscal impact and approval of regulatory impact analysis:
The Executive Director of the Department of Environmental Quality, Tim Davis, has reviewed and approved this regulatory impact analysis.
Citation Information
7. Provide citations to the statutory authority for the rule. If there is also a federal requirement for the rule, provide a citation to that requirement:
Subsection 19-1-303(5)(d)
Public Notice Information
9. The public may submit written or oral comments to the agency identified in box 1.
A. Comments will be accepted until:
10. This rule change MAY become effective on:
NOTE: The date above is the date the agency anticipates making the rule or its changes effective. It is NOT the effective date.
Agency Authorization Information
Agency head or
designee and title:
Ashley Sumner, Deputy Director
R305. Environmental Quality, Administration.
R305-12. Extraordinary Enforcement Expenses. R305-12-101. Purpose of Parts. (1) This rule provides definitions and other requirements that govern the department's reimbursement of extraordinary enforcement expenses incurred by the department, local health departments, and other local governments from civil penalties collected under the authority of Title 19, Environmental Quality Code. (2) The executive director or division directors, as the case may be, may delegate responsibilities under Title 19, Part 7, Administrative Procedures, to appropriate persons employed by the department. R305-12-102. Definitions. As used in this rule, the following terms shall have the following meanings: (1) "Cost of enforcement" means the actual, reasonable cost of a qualifying enforcement activity, including costs of investigation, sampling, monitoring, and related enforcement activities incurred under the authority of Title 19, Environmental Quality Code. (2) "Extraordinary enforcement expenses" means any cost of enforcement incurred by the department or a local government that goes beyond the scope of ordinary enforcement expenses. (3) "Local government" means local health departments or other local governments authorized to engage in enforcement activities under the authority of Title 19, Environmental Quality Code. (4) "Ordinary enforcement expenses" means costs of enforcement related to routine, planned compliance inspections and similar ordinary enforcement activities. (5) "Qualifying enforcement action" means an enforcement activity that results in the incurrence of extraordinary enforcement expenses. (6) "Qualifying penalty" means civil, administrative, and other penalties, including civil fines, collected under the authority of chapters in Title 19, Environmental Quality Code, requiring that such penalties be deposited into the General Fund. R305-12-103. Initiation of Qualifying Enforcement Actions by the Department; Documentation. (1) Division directors shall be responsible for determinations whether an enforcement activity meets the definition of or is reasonably expected to meet the definition of a qualifying enforcement action, subject to department oversight. (2) For each qualifying enforcement action, division directors shall maintain records that are adequate to document and calculate costs of enforcement. (3) Records documenting costs of enforcement for matters resulting in reimbursement of extraordinary enforcement expenses shall be maintained by division directors in accordance with approved retention schedules. (4) For each enforcement action for which the department or division director has received notice from a local government in accordance with Subsection R305-12-104(2), the department or division director shall keep the local government apprised of the status of the enforcement matter, including whether the department intends to seek to impose or settle a qualifying penalty. R305-12-104. Initiation of Qualifying Enforcement Actions by Local Governments; Documentation; State Fiscal Year Due Date. (1) If a local government determines that an enforcement activity under the authority of Title 19, Environmental Quality Code, qualifies as or is reasonably expected to meet the definition of a qualifying enforcement action for which the local government intends to seek reimbursement from the department, the local government shall provide reasonable notice to the department of its determination and intent. Notice to a division director is considered to be notice to the department. (2) For each qualifying enforcement action, the local government shall maintain records that are adequate to document and calculate the local government's cost of enforcement. Cost of enforcement shall be attributable to the specific qualifying enforcement action. (3) Records documenting cost of enforcement for matters resulting in reimbursement of extraordinary enforcement expenses shall be maintained by the local government in accordance with approved retention schedules. (4) Local governments shall submit claims for extraordinary enforcement expenses in a timely manner, as such expenses are incurred. All claims for reimbursement for extraordinary enforcement expenses incurred during a state fiscal year shall be submitted to the department on or before July 15th of the new fiscal year. A local government's failure to comply with this deadline shall operate as a waiver as to such claims. R305-12-105. Reimbursement of Local Government Extraordinary Enforcement Expenses; Allocation. (1) To obtain reimbursement of its extraordinary enforcement expenses from a qualifying penalty, the local government shall provide a reimbursement request to the department. The reimbursement request shall include the following: (a) Documentation of the local government's notice to the department pursuant to Subsection R305-12-104(1); (b) Documentation that the department requested the local government to engage in the qualifying enforcement action, which may include a standing request; and (c) Documentation and supporting records that are adequate to calculate and justify the extraordinary enforcement expenses for which reimbursement is sought, including the basis for billing rates for staff time. (2) A request for reimbursement under Subsection (1) shall be made within a reasonable time after the local government's incurrence of extraordinary enforcement expenses. (3) In response to a request for reimbursement under Subsection (1), the department may request that the local government provide additional information, documentation, or other justification supporting its request. (4) Not more than 60 days following receipt of a request for reimbursement under Subsection (1), the department shall reimburse extraordinary enforcement expenses claimed by the local government that the department finds, in the department's sole discretion, qualify for reimbursement. (5) If the department determines that costs claimed by the local government do not qualify as extraordinary enforcement expenses, the department shall provide the local government with notice of the department's determination. The local government may dispute the department's determination in accordance with Section R305-12-106. 
