49-1093

49-1093. Underground storage tank technical
appeals panel

A. The underground storage tank technical appeals panel is established consisting
of ten regular members and three alternate members who are appointed by and who serve at
the pleasure of the governor for staggered two year terms. Each member shall have a
baccalaureate degree and professional experience in hydrology, hydrogeology, geology or
engineering. Experience with underground storage tank corrective actions is highly
preferred. A member shall not be an employee of the United States environmental
protection agency or this state, but may be a faculty member at a state university.

B. Members and alternates are eligible for compensation pursuant to section 38-611,
subsection D for each day they attend a hearing or conduct formal deliberations.

C. Members are subject to title 38, chapter 3, article 8, relating to conflict of
interest. A panel member shall not participate in an administrative hearing if the member
is involved in an appeal pending pursuant to this section that is substantially similar
to the matter on appeal. A panel member shall disclose to all parties all potential
conflicts of interest within forty-eight hours after appointment to participate in an
administrative hearing. A current panel member shall not appear before the panel as an
employee, consultant, witness or expert witness for a party to an appeal. A former panel
member shall not appear before the panel as an employee, consultant, witness or expert
witness for a party to an appeal for a period of one year. A panel member shall not
participate in an administrative hearing if either of the following apply:

1. The member is or was during the preceding year an employee of a party at the
hearing.

2. The member is or was employed during the preceding year by a firm appearing on
behalf of a party at the hearing.

D. A person who is involved in a pending appeal pursuant to this section shall not
communicate directly or indirectly with any member of the panel about any substantive
issue in a pending appeal unless any of the following applies:

1. All parties are present.

2. The communication is made during a scheduled proceeding in which a party fails
to appear after proper notice.

3. The communication is made in writing with copies to all parties.

E. The appellant, the department or the administrative law judge selected by the
office of administrative hearings may request that the panel participate in a hearing
arising from a final decision or determination issued pursuant to section 49-1091. If
five panel members including alternates are not available, the hearing may proceed if at
least three members including alternates are available.

F. Hearings shall be conducted in accordance with this article and the procedures
in title 41, chapter 6, article 10, relating to convening and conducting hearings and
time frames for issuing decisions. The notice of hearing issued pursuant to section
41-1092.05 shall be served on the panel members.

G. The scope of the hearing shall be limited to those matters and rationale
specifically addressed in the final determination or decision issued by the department
pursuant to section 49-1091.

H. Unless otherwise agreed by the parties, before the hearing, the parties shall
exchange a list of witnesses and any copies of documents to be introduced at the hearing
and attempt in good faith to stipulate to those witnesses who will be called to testify,
the documents that may be introduced at the hearing and any facts and law at issue in the
matter. Before the hearing, the administrative law judge as necessary shall issue an
order listing the witnesses to be called, the documents that may be introduced and
clarifying or limiting any procedural, legal or factual issues in the matter, scheduling
any deadlines and hearing dates, and requesting any prehearing briefing.

I. The panel shall hear testimony, review evidence, examine witnesses if necessary
and prepare written findings of fact regarding the matters specifically identified by the
department pursuant to subsection G of this section. The administrative law judge and the
panel members shall deliberate at the conclusion of the hearing. Following these
deliberations, the panel members shall weigh the evidence presented and issue written
findings of fact based solely on the testimony presented at the hearing and the exhibits
received into evidence. The administrative law judge shall adopt the panel's technical
findings of fact in the recommended decision to the director unless the administrative
law judge determines that the technical findings of fact are technically invalid. The
administrative law judge shall prepare a written explanation in the recommended decision
to the director regarding the reasons for the administrative law judge's finding and
shall include a copy of the panel's technical findings of fact with the recommended
decision.

J. The director may affirm, reject or modify the recommended decision of the
administrative law judge. The director may only reject or modify the technical findings
of fact in the recommended decision if the director determines they are technically
invalid. The director may only reject or modify the conclusions of law in the recommended
decision if the director determines they are incorrect as a matter of law. The director's
decision shall be issued in accordance with the time frames prescribed in section
41-1092.08, subsection B. The recommended decision becomes the final administrative
decision if the director's decision is not issued within thirty days after receipt of the
recommended decision.

K. Any party may intervene in an appeal at the discretion of the administrative law
judge.