49-1091

49-1091. Underground storage tank informal
appeals

A. A person who undertakes corrective action pursuant to section 49-1052,
subsection I 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, direct payment or reimbursement from the underground storage tank assurance
account.

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 of receipt is a basis for an
informal appeal.

C. A person who undertakes corrective action pursuant to section 49-1052,
subsection I 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 of 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 who 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 of receiving the notice of disagreement or within fifteen days of 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 who 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
who 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
from 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
from 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 49-1052, subsection I 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 who undertakes
corrective action pursuant to section 49-1052, subsection I, of an application for
preapproval, direct payment or reimbursement from the underground storage tank assurance
account within ninety days of receipt is a basis for an informal appeal.