Alaska Administrative Code › Title 18 - Environmental Conservation › Chapter 15 - Administrative Procedures › Article 6 - Administrative Appeal Procedures › 18 AAC 15.210 - Stay of decision

Current through May 31, 2024
(a) The
				department's decision is effective when issued. The department's decision is
				not automatically stayed during the pendency of proceedings under this chapter.
				A requester may, not later than the deadline for service of a request for a
				hearing under 18 AAC 15.200, serve upon the commissioner a request for stay of
				the department's decision, or a portion of it, pending completion of
				proceedings under this chapter. The request must be supported by a written
				memorandum setting out each reason why the decision should be stayed. A person
				requesting a stay must serve a copy of the request and supporting memorandum on
				the division director and on the permit applicant or permittee. A copy of the
				request for stay also must be provided to the commissioner in an electronic
				format, unless the department waives this requirement because the requester
				lacks a readily accessible means or the capability to provide items in an
				electronic format. The commissioner will issue by mail, facsimile transmission,
				or electronic mail a notice of the request for stay to the requester, to the
				division director, to the permit applicant or permittee, and to each person who
				commented on the application or draft decision, and will post that notice on
				the Alaska Online Public Notice System established under AS 44.62.175. In the
				notice of request for stay, the commissioner will inform persons that the
				request for stay is available for review by contacting the department or by
				reviewing the department's website. In the notice, the commissioner also will
				include the statement that a person who wishes to oppose or support the request
				for stay must do so by serving a response on the commissioner on or before a
				date established by the commissioner and by serving copies as required under
				(b) of this section.
(b) Not later
				than the time that the commissioner sets in the notice of request for stay
				under (a) of this section, the division director, a requester not requesting
				the stay, the permit applicant or permittee, and a potential intervenor may
				serve a responsive memorandum upon the commissioner, the stay requester, the
				permit applicant or permittee, and the division director in the manner required
				under 18 AAC 15.340. A potential intervenor need not file a request to
				intervene under 18 AAC 15.225 in order to submit a responsive memorandum to a
				request for stay. A potential intervenor submitting a responsive memorandum to
				a request for stay must file a motion to intervene if the person wishes to
				participate in a proceeding that the commissioner grants under 18 AAC 15.220.
(c) The commissioner will
				issue a decision on a request for stay made under (a) of this section. In
				reviewing a request for stay, the commissioner will consider
(1) whether the person requesting the stay
				will suffer irreparable harm if a stay is not granted;
(2) whether the rights of other persons and
				the public interest can be adequately protected if the stay is
				granted;
(3) the relative harm to
				the person requesting the stay, the permit applicant or pennittee, public
				health, safety, the environment, and the public interest, if a stay were
				granted or denied;
(4) the
				resources that would be committed during the pendency of proceedings under this
				chapter if a stay were granted or denied; and
(5) the likelihood that the person requesting
				the stay will prevail in the proceedings on the merits.