Arkansas Administrative Code › Agency 014 - Pollution Control and Ecology Commission › Regulation 8 - Administrative Procedures (#014.00-08) › Rule 014.00.08-007

Current through Register Vol. 49, No. 6, June, 2024
CHAPTER ONE
:
			 GENERAL PROVISIONS
Reg.8.101
TITLE
The Arkansas Pollution Control and Ecology Commission
				("Commission") adopts Regulation No. 8 pursuant to Arkansas Code Annotated
				Section
				8-1-203(b)(1),
				(2) and (3). This Regulation shall be known
				as Regulation No. 8 - Administrative Procedures and may be cited as: Reg. 8.101
				et seq.
Reg.8.102
PURPOSE AND INTENT
(A) The
			 purpose of is to set out the administrative procedures that govern the
			 Commission, the Arkansas Department of Environmental Quality ("Department"),
			 and any person appearing in any proceeding or matter before the Commission or
			 the Department
(B) It is the intent
			 of the Commission that the provisions of this Regulation be liberally construed
			 so as to provide a fair opportunity for a hearing on all matters addressed
			 herein to all persons who have standing in a specific question which is before
			 the Commission and to expedite the administration of matters pending before the
			 Commission.
Reg.8.103
DEFINITIONS
As used in this Regulation, unless the context otherwise
				requires:
(A)
"Adjudicatory
			 hearing"
means any hearing held by the Commission under the laws
			 administered by the Commission or the Department, for the purpose of receiving
			 evidence concerning the adjudication of facts or issues for which a hearing is
			 provided.
(B)
"Adjudicatory
			 proceeding"
means any administrative action allowed by statute,
			 regulation, or permit specifically brought before the Commission to resolve a
			 dispute.
(C)
"Administrative
			 civil penalty"
means any monetary amount assessed by the Director
			 against a person for violation of a statute, regulation, permit, or order
			 administered by the Department, and includes any in-kind services or cash
			 contribution authorized by the Director as partial mitigation of cash penalties
			 for use in projects or programs designed to advance environmental
			 interests.
(D)
"Administrative enforcement action"
means any administrative
			 proceeding instituted by the Department against a person charged with violation
			 of any law, regulation, permit, or order administered by the
			 Department.
(E)
"Administrative Hearing Officer"
means a person designated by the
			 Commission to determine issues of fact and law and render a written Recommended
			 Decision on matters pending before the Commission and to take any other action
			 consistent with the Commission's statutory and regulatory authority.
(F)
"Administrative Permit
			 Amendment"
means a minor change which is not typically considered a
			 permit modification, as defined by applicable statutes or regulations, or a
			 minor change which does not require public notice and opportunity for comment.
			 For example, typographical corrections or other minor corrections initiated by
			 the Department might be considered administrative permit amendments. Some minor
			 changes requested by the permittee may also qualify as administrative permit
			 amendments. For Air permits, administrative permit amendments are defined in
			 Regulations 18, 19, and 26. The Director, in his or her discretion, may decide
			 whether a proposed revision would be considered an administrative
			 amendment.
(G)
"Administratively complete"
means that all information required by
			 statute, regulation, or application form has been submitted to the Department
			 for the purpose of processing a permit application. An application that is
			 administratively complete is not necessarily technically complete or complete
			 for other purposes.
(H)
"Affiliated person"
means:
(1)
			 Any officer, director, or partner of the applicant;
(2) Any person employed by the applicant in a
			 supervisory capacity over operations of the facility that is the subject of the
			 application which may adversely impact the environment, or with discretionary
			 authority over such operations;
(3)
			 Any person owning or controlling more than five percent (5%) of the applicant's
			 debt or equity; or
(4) Any person
			 who is not now in compliance or has a history of noncompliance with the
			 environmental laws or regulations of this state or any other jurisdiction and
			 who through relationship by affinity or consanguinity or through any other
			 relationship could be reasonably expected to significantly influence the
			 applicant in a manner which could adversely affect the environment.
(I)
"Applicant"
means
			 any person who files an application for a permit or permit renewal; an
			 application for the reissuance of, revision of, modification of, or transfer of
			 a permit; an application for closure/post closure plan approval or
			 modification; an application for a permit exemption, variance or waiver; an
			 application for a certification or license; and an application for a bond
			 reduction or release; or any other application as required by the
			 Department.
(J)
"Chairperson"
means a commissioner elected by the other
			 commissioners to preside over the Arkansas Pollution Control and Ecology
			 Commission.
(K)
"Commission"
means the Arkansas Pollution Control and Ecology
			 Commission.
(L)
"Commission
			 hearing"
means a proceeding in which the Commission reviews an action
			 taken by the Department which includes but is not limited to, enforcement
			 actions and the issuance of administrative orders, permitting decisions, grant
			 or loan decisions, petroleum storage tank trust fund decisions, tax credit
			 decisions, and other matters.
(M)
"Commission Secretary"
means the designated secretary to the
			 Commission.
(N)
"Consent
			 Administrative Order," "Permit Appeal Resolution," and "Settlement
			 Agreement"
all mean an administrative order entered into by agreement of
			 the parties, including the Department.
(O)
"Declaratory Order"
means an
			 order that resolves controversies or answers questions or doubts concerning the
			 applicability of rules, statutes, permits, or orders over which the Commission
			 has authority. A Petition for Declaratory Order may be used only to resolve
			 questions or doubts as to the application of rules, statutes, permits, or
			 orders to the petitioner's particular circumstances. A Petition for Declaratory
			 Order is not the appropriate means to determine the conduct of another person
			 or to obtain a policy statement of general applicability from the Commission. A
			 petition must describe the impact to the petitioner of the rule, statute,
			 permit, or order.
(P)
"Default Administrative Order
means a final order issued by the
			 Director to a person who has failed to respond in writing to a Notice of
			 Violation within twenty (20) calendar days of its receipt.
(Q)
"Department"
means the
			 Arkansas Department of Environmental Quality, or its successor, including the
			 Director and Department staff.
(R)
"Director"
means the executive head of the Arkansas Department of
			 Environmental Quality or the executive head's delegatee.
(S)
"Emergency Order"
means an
			 administrative order issued by the Director pursuant to specific authority
			 provided by any law or regulation administered by the Commission or the
			 Department without prior notice or adjudicatory hearing, upon a finding that an
			 emergency or imminent hazard exists.
(T)
"Grant or loan decision"
means a final administrative decision by the Director on any application for a
			 grant or loan or the Director's final decision on any dispute related to a
			 grant or a loan.
(U)
"Implementing agreement"
means a plan, order, memorandum of
			 agreement, or other enforceable document issued by the Department under
			 provisions of the Arkansas Hazardous Waste Management Act of 1979, Arkansas
			 Code Annotated §
										8-7-201 et seq. or the
			 Remedial Action Trust Fund Act, Arkansas Code Annotated §
										8-7-501 et seq., to
			 implement the voluntary cleanup process described in Arkansas Code Annotated
			 §
										8-7-1104.
(V)
"Major modification"
means a
			 revision which is not a minor modification or an administrative permit
			 amendment.
(W)
"Minor
			 modification"
means a revision of a permit as defined by any other
			 regulation or as determined by the Department to be routine or inconsequential
			 in case-specific circumstances and is not an administrative permit
			 amendment.
(X)
"Notice of
			 adjudicatory hearing"
means a written notification to the parties of an
			 adjudicatory hearing. This term does not apply to a notice of public hearing or
			 publication of notice in a newspaper.
(Y)
"Notice of Bond Forfeiture"
means a written notification to a person of alleged violations of any statute,
			 regulation, permit or order administered by the Department or Commission, which
			 constitute grounds for forfeiting a bond to the Department. The Notice of Bond
			 Forfeiture initiates an administrative enforcement action.
(Z)
"Notice of Violation"
means
			 a written notification to a person of alleged violations of any statute,
			 regulation, permit, or order administered by the Department or Commission. The
			 Notice of Violation initiates an administrative enforcement action.
(AA)
"Permit"
means an
			 authorization conferred by the Director pursuant to statute or regulation to
			 construct or operate an existing or a proposed facility.
(BB)
"Permitting decision"
means
			 a final administrative decision by the Director or the Director's delegatee on
			 all applications for permits, permit renewals, major modifications, minor
			 modifications, administrative permit amendments, permit revocations, interim
			 authority and temporary variances, construction permits, and transfers;
			 closure/post closure plan approvals and modifications; the calculation of
			 permit fees; exemptions, variances and waivers; certifications or licenses;
			 bond reductions or releases; and specific conditions imposed on
			 permits.
(CC)
"Person"
means any individual; corporation; company; firm; partnership; association;
			 trust; joint-stock company or trust; limited liability company; venture;
			 municipal, state, county, or federal government agency, authority or
			 instrumentality; or any other legal entity, however organized.
(DD)
"Presiding Officer"
means
			 the person conducting a public hearing on behalf of the Commission or the
			 Department.
(EE)
"Public
			 comment"
means any written statement received by the Department during
			 the public comment period by letter, electronic mail or facsimile, or any oral
			 statement received on the record during a public hearing.
(FF)
"Public hearing"
means a
			 formal meeting held pursuant to the laws or regulations administered by the
			 Commission or the Department for the purpose of receiving on the record oral or
			 written comments from the public on a permitting decision or on a rulemaking
			 proceeding. A public hearing is not an adjudicatory hearing or a public
			 meeting.
(GG)
"Public
			 Meeting"
means an informal meeting held by the Commission or the
			 Department for the purpose of exchanging information with the public on a
			 permitting decision, on a rulemaking, or on any issue of public interest. A
			 public meeting is not an adjudicatory hearing or a public hearing. Any comment
			 made at a public meeting is not made on the record and is therefore not
			 received as a "public comment."
(HH)
"Public notice"
means the
			 published notification of any public hearing, permitting decision, grant or
			 loan decision, rulemaking, enforcement action or any other matter taken by the
			 Commission or the Department as provided in this Regulation or by
			 law.
(II)
"Recommended
			 Decision"
means the written recommendation, including findings of fact
			 and conclusions of law, made by the Administrative Hearing Officer to the
			 Commission at the conclusion of an adjudicatory hearing or after a decision
			 granting or denying the relief sought in the matter.
(JJ)
"Regulation"
means any rule
			 promulgated by the Commission pursuant to the laws it administers. The term
			 "regulation" includes: rule or suspension of the processing of a type or
			 category of a permit or a declaration of a moratorium on a type or category of
			 a permit.
(KK)
"Rulemaking"
means a proceeding to promulgate, adopt, amend or
			 repeal a regulation.
(LL)
"Special conditions"
means the conditions to a permit issued by
			 the Department in its discretion that are not specifically imposed by law or
			 regulation.
(MM)
"Stay"
means the postponement or delay of a decision of the
			 Director or the Commission .
(NN)
"Subpoena"
means a command to appear at a certain time and place
			 to give testimony upon a certain matter. A subpoena duces tecum requires
			 production of books, papers and other things.
(OO)
"Third-party rulemaking"
means any submitted by any person other than the Commission or the
			 Department.
(PP)
"Violation"
means an instance of noncompliance by a person with a
			 provision of a law, regulation, permit or order administered by the Commission
			 or the Department.