8-4-205. Permits — Hearings upon denial, revocation, or modification and other permit actions — Definition.

8-4-205. Permits — Hearings upon denial, revocation, or modification and other permit actions — Definition. (a) Any person that is denied a permit by the Director of the Division of Environmental Quality or that has a permit revoked or modified or a request for permit transfer or modification denied shall be afforded an opportunity for a hearing by the Arkansas Pollution Control and Ecology Commission in connection therewith, upon written application made within thirty (30) days after service of notice of the denial, revocation, or modification. (b)(1) Only those interested persons, other than the applicant, that have submitted comments on the record regarding a proposed permit action during the public comment period shall have standing to request a hearing by the commission in connection therewith, upon written application made within thirty (30) days after the date of the Division of Environmental Quality's final decision regarding the permit action. (2) No interested party requesting a hearing under this subsection may raise any issue in the hearing that was not raised in the public comments unless the party raising the issue shows good cause why such issue could not, with reasonable diligence, have been discovered and presented during the public comment period. The limitation in this subdivision (b)(2) shall not restrict the issues that may be addressed by the applicant in any appeal. (3) A request for a hearing shall identify the permit action in question and its date and must include a complete and detailed statement identifying the legal and factual objections to the permit action. (c)(1)(A) Within thirty (30) days of the date the request for a hearing is filed with the Secretary of the Arkansas Pollution and Ecology Control Commission, a preliminary hearing will be conducted in the name of the commission by the commission's authorized administrative law judge. (B) Within a reasonable time after the preliminary hearing, the administrative law judge shall enter a written decision determining whether the parties qualify as proper parties under subdivision (b)(1) of this section and whether the request conforms with the requirements under subdivisions (b)(2) and (3) of this section. (C) A party aggrieved by the decision entered under this subsection may, within ten (10) business days, request review by the commission. (2)(A) A contested decision and any final recommended decision of the administrative law judge shall be transmitted to the commission. (B) The commission shall consider the recommended decision of the administrative law judge and shall either affirm the decision in whole or in part or reverse the decision in whole or in part. (3) At this preliminary hearing, the administrative law judge shall weigh the equities of any request for expedited review and advance the case on the administrative docket as circumstances permit. (4) The commission shall review the director's decision de novo. (5) The administrative law judge shall schedule the hearing and other proceedings so that the appeal will be submitted to the commission for final commission action within one hundred twenty (120) days after the preliminary hearing unless the parties mutually agree to a longer period of time or the administrative law judge establishes a longer period of time for just cause. (6) During the pendency of the appeal to the commission: (A) The denial of a permit shall stand; (B) The issuance, modification, or revocation of a permit or that part of a permit that is the subject of the appeal shall be stayed; (C)(i) Notwithstanding subdivisions (c)(6)(A) and (B) of this section, upon application by a party, the commission may provide for a stay, modify the terms of a stay, or terminate a stay under appropriate circumstances to avoid substantial prejudice to a party. (ii) As used in subdivision (c)(6)(C)(i) of this section, “substantial prejudice” means that the following will occur to the party seeking a stay, a modification of the terms of a stay, or the termination of a stay if the request is denied: (a) Actual harm to health; or (b) Adverse economic impact, including without limitation interruption, curtailment, or deferral of business or increased cost of construction or operation; (D) Upon application by a party for a stay, to modify the terms of a stay, or to terminate a stay, the Chair of the Arkansas Pollution and Ecology Control Commission shall: (i) Grant a temporary stay, modify the terms of a stay, or terminate a stay effective until the earlier of the next regularly scheduled commission meeting or the next special meeting called for the purpose of considering the application; or (ii) Place the application on the agenda for the next regularly scheduled commission meeting or call a special commission meeting for the purpose of considering the application if more than thirty (30) days will pass between the receipt of the application and the next regularly scheduled commission meeting; and (E) Notwithstanding subdivision (c)(6)(D) of this section, the commission shall render a final decision on an application to provide for a stay, modify the terms of a stay, or terminate a stay within thirty (30) days of receipt of the application. (7) The decision of the commission is final, and only those persons that are parties to the administrative appeal under this section shall have standing to appeal a permitting decision to circuit court as provided for in §§ 8-4-222 — 8-4-229.