§ 8-4-230 — Temporary variances and interim authority

(a) (1) Unless otherwise expressly prohibited by federal law, the Director of the Division of Environmental Quality may, for compelling reasons and good cause shown, grant: (A) A temporary variance from the requirements of a permit issued by the Division of Environmental Quality; or (B) Interim authority to construct or operate during the application review and permit issuance process. (2) Such temporary variances or interim authority shall not exceed a period of ninety (90) days, except when a longer period is justified by circumstances beyond the applicant's control. The division may grant a request for an extension of a temporary variance or interim authority at any time prior to the expiration date. (3) The division may require an initial processing fee of two hundred dollars ($200) for a request for a temporary variance or an interim authority request. This fee shall not be required for requests for an extension of any temporary variance or interim authority. (b) (1) In considering a request for a temporary variance under subdivision (a)(1)(A) of this section, the director shall consider: (A) The environmental and public health effects of the temporary variance; (B) Any economic advantage obtained by the party requesting the temporary variance over other similarly situated facilities that are operating in accordance with similar permit conditions and that have not requested a temporary variance; and (C) Whether strict compliance would result in the substantial curtailment or closing down of an existing or proposed business, plant, or operation. (2) In addition, the director may take into account the following factors in considering a request under subdivision (a)(1) of this section: (A) Whether strict compliance with permit terms is inappropriate because of conditions beyond the control of the person requesting the temporary variance; (B) Whether the temporary variance request is prompted by recurrent or avoidable compliance problems; (C) Whether a review of the operational history of the requesting facility reveals relevant information; and (D) Whether the public interest will be served by a temporary variance. (c) When considering any request for interim authority during the application review and permit issuance process pursuant to subdivision (a)(1)(B) of this section, the director may take into account the following factors in addition to the applicable factors of subsection (b) of this section: (1) Whether the applicable permitting applications were timely and completely submitted; (2) Whether there has been a delay in the final permitting action caused by conditions beyond the control of the person requesting the interim authority; (3) Whether contractual or other business obligations will become due before a proper permit can be issued; and (4) Whether the public interest will be served by construction or operation during the application review and permit issuance process. (d) After a review of the applicable factors, the director may: (1) Grant an unconditional variance or interim authority to the requesting party; (2) Grant a conditional temporary variance or interim authority to the requesting party. Such conditions shall be designed to be protective of human health and the environment and must be clearly stated or referenced in the temporary variance or interim authority document; or (3) Deny the request for a temporary variance or interim authority. If a denial is issued, the director shall clearly state the reason or reasons for the denial in a written response to the applicant. (e) (1) The director's decision to grant or deny a temporary variance or interim authority to construct or operate shall be issued within ten (10) days of receipt of the request for the temporary variance or interim authority and shall be publicly noticed in a newspaper of general circulation in the state within five (5) business days of the director's decision. The applicant shall be responsible for the expense of the publication of a decision to grant a temporary variance or interim authority. The division shall be responsible for the expense of the publication of a decision to deny a temporary variance or interim authority. (2) A person may object to the director's decision within ten (10) business days of the notice. (3) A temporary variance or interim authority granted by the director is contingent upon the right of any person to object. (4) An action taken by the applicant in reliance upon the grant of a temporary variance or interim authority during the application review and permit issuance process is strictly at the applicant's own risk, and an action or expenditure by the applicant during this period does not accrue equities in the applicant's favor. (5) The public notice requirement under this section shall not apply to the director's decision to grant an extension of a temporary variance or interim authority. (f) The director may also for compelling reasons or good cause shown revoke or modify the conditions of a temporary variance or interim authority previously granted. (g) (1) An applicant that is denied a temporary variance or interim authority or that has a temporary variance or interim authority revoked or a third party that submitted timely objections during the application review and permit issuance process described in subsection (e) of this section may appeal the director's final decision to the Arkansas Pollution Control and Ecology Commission upon written request made within ten (10) days after notice of the director's decision. (2) (A) Unless otherwise agreed to by the party requesting review of the director's decision, an appeal under subdivision (g)(1) of this section shall be considered by the commission at the next regularly scheduled commission meeting following submission of the written request. (B) However: (i) The decision of the director shall remain in effect during the appeal; (ii) The commission's review shall be completed as expeditiously as possible; and (iii) A final decision shall be issued by the commission within thirty (30) days unless all parties agree to extend the review time. (C) (i) The commission may affirm, amend, modify, or revoke the director's final decision. (ii) An affirmation of the director's final decision shall be based on the determination by the commission that the: (a) Director adequately considered all relevant and applicable factors under subsections (b) and (c) of this section in arriving at the final decision; and (b) Public interest will be served by the affirmation of the director's final decision. (iii) An amendment, modification, or revocation of the director's final decision shall be based on a determination by the commission that the: (a) Director's final decision was unduly burdensome, impractical, or unreasonable given the circumstances; (b) Director failed to adequately consider the applicable factors under subsections (b) and (c) of this section; or (c) Public interest will be served by the amendment, modification, or revocation of the director's final decision. (h) A party that submits an objection to the director's decision under subdivision (e)(2) of this section and is aggrieved by a commission decision on a request for a temporary variance or interim authority may appeal as provided by applicable law.

Legislative History

Amended by Act 2019, No. 910,§ 2510, eff. 7/1/2019. Amended by Act 2019, No. 910,§ 2509, eff. 7/1/2019. Amended by Act 2013, No. 1021,§ 10, eff. 8/16/2013. Amended by Act 2013, No. 1021,§ 9, eff. 8/16/2013. Amended by Act 2013, No. 1021,§ 8, eff. 8/16/2013. Acts 1995, No. 943, § 1; 1999, No. 147, § 1.