§ 49-1091 — Underground storage tank informal appeals

A. A person that undertakes corrective action pursuant to section 49-1016, subsection C or an owner or operator may informally appeal the following decisions or determinations pursuant to this section:

1. A written interim decision from the underground storage tank program of the department.

2. A written interim determination from the department on matters relating to owner or operator status.

3. A written interim determination from the department on matters relating to preapproval or reimbursement from the underground storage tank revolving fund.

4. A written interim determination or decision relating to the allocation of liability pursuant to this chapter.

B. The department's failure to respond with a written interim decision to the owner's or operator's submission to the department of any documents identified in subsection G of this section within one hundred twenty days after receipt is a basis for an informal appeal.

C. A person that undertakes corrective action pursuant to section 49-1016, subsection C or an owner or operator who is subject to an interim decision or determination described in subsections A and B of this section, and who disagrees with the interim decision or determination, may file a written notice of disagreement with the department within thirty days after receiving the department's interim decision or determination. The notice shall include a description of the specific portions of the interim decision or determination with which the person, owner or operator disagrees and may include a request to meet with the department to resolve the disagreement. The department shall schedule a meeting within thirty days after receiving the request.

D. A person that requests a meeting pursuant to subsection C of this section or an authorized representative of the person designated in writing may attend the meeting with any individuals who may be helpful in discussing the matter with the department.

E. The department shall issue a final written decision or determination within forty-five days after receiving the notice of disagreement or within fifteen days after a meeting pursuant to subsection C of this section, whichever is later. If no notice of disagreement is filed, the department shall issue a final written decision or determination within forty-five days after the issuance of the interim decision or determination. Before the expiration of time for the department to issue a final written decision or determination, the department may request additional information from the person who has submitted a notice of disagreement that is necessary to make a final decision or determination. A person that receives this request shall have fifteen days to submit the requested information to the department. The time frames for the department to issue a final decision or determination shall be extended for up to fifteen days during the time the requested information is outstanding, and for up to fifteen additional days, if applicable, after any information is submitted to the department. The time to submit the requested information may be extended for up to sixty days on the request of a person that submits a notice of disagreement. The time frames for the department to issue a final decision or determination shall be extended accordingly. The time frames for the department to issue a final decision or determination shall also be extended if information relating to the subject of the notice of disagreement is not requested by the department but is provided to the department for the first time less than fifteen days after the date the department is required to issue a final decision or determination. In this situation, the time frames shall be extended to allow the department fifteen days after the date the information is submitted to issue a final decision or determination. If the department fails to issue a final written decision or determination within the time specified in this subsection, the department's written interim decision or determination becomes the final written decision or determination. The final written decision or determination shall address the notice of disagreement received pursuant to subsection C of this section. The final written decision or determination is the only decision or determination that is appealable as an appealable agency action as defined in section 41-1092 or a contested case as defined in section 41-1001.

F. The period of time for compliance with corrective actions associated with the subject matter of a notice of disagreement is tolled from the date that a person who undertakes corrective action pursuant to section 49-1016, subsection C or an owner or operator files a written notice of disagreement with the department until the date the final decision or determination is rendered by the department and any appeals are completed.

G. A written interim decision shall address one of the following technical issues:

1. The department's approval, disapproval or notice of deficiency of site characterization reports.

2. The department's approval, disapproval or notice of deficiency of corrective action plans for soil or groundwater, or both.

3. The department's approval, disapproval or notice of deficiency of a work plan.

4. The department's determination or confirmation of a release.

5. The department's approval, disapproval or notice of deficiency of requests for closing a case file corresponding to a release from a leaking underground storage tank.

H. The department shall not alter the time limits prescribed by this chapter by adoption of a time limit by rule.

I. The department's failure to respond with a written interim determination to the owner's or operator's submission, or to the submission from a person that undertakes corrective action pursuant to section 49-1016, subsection C, of an application for preapproval or reimbursement from the underground storage tank revolving fund within ninety days after receipt is a basis for an informal appeal.