80-15-110. State regulations no more stringent than federal regulations or guidelines. (1) After April 14, 1995, except as provided in subsections (2) through (5) or unless required by state law, the department of environmental quality may not adopt a rule to implement this chapter that is more stringent than the comparable federal regulations or guidelines that address the same circumstances. The department of environmental quality may incorporate by reference comparable federal regulations or guidelines.
(2) The department of environmental quality may adopt a rule to implement this chapter that is more stringent than comparable federal regulations or guidelines only if it makes a written finding after a public hearing and public comment and based on evidence in the record that:
(a) the proposed state standard or requirement protects public health or the environment of the state; and
(b) the state standard or requirement to be imposed can mitigate harm to the public health or environment and is achievable under current technology.
(3) The written finding must reference information and peer-reviewed scientific studies contained in the record that forms the basis for the conclusion. The written finding must also include information from the hearing record regarding the costs to the regulated community that are directly attributable to the proposed state standard or requirement.
(4) (a) A person affected by a rule of the board adopted after January 1, 1990, and before April 14, 1995, that that person believes to be more stringent than comparable federal regulations or guidelines may petition the board to review the rule. If the board determines that the rule is more stringent than comparable federal regulations or guidelines, the department of environmental quality shall comply with this section by either revising the rule to conform to the federal regulations or guidelines or by making the written finding, as provided under subsection (2), within a reasonable period of time, not to exceed 12 months after receiving the petition. A petition under this section does not relieve the petitioner of the duty to comply with the challenged rule. The board may charge a petition filing fee in an amount not to exceed $250.
(b) A person may also petition the board for a rule review under subsection (4)(a) if the board adopted a rule after January 1, 1990, and before July 1, 2021, in an area in which no federal regulations or guidelines existed and the federal government subsequently establishes comparable regulations or guidelines that are less stringent than the previously adopted board rule.
(5) This section does not apply to a rule adopted under the emergency rulemaking provisions of 2-4-303(1).
History: En. Sec. 1, Ch. 471, L. 1995; amd. Sec. 80, Ch. 324, L. 2021.