18 AAC 15.210. Stay of decision

(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 requestor may, contemporaneous with the service of the 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 department office that issued the decision being challenged and on the permit applicant. A copy of the request for stay also must be provided to the department office in an electronic format, unless the department waives this requirement because the requestor lacks a readily accessible means or the capability to provide items in an electronic format. The department will issue by mail a notice of the request for stay to the requestor, to the permit applicant, and to each person who commented on the application or proposed permit 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 department 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 department also will include the statement that a person who wishes to file a response to the request for stay must do so by serving a response on the commissioner within 20 days after issuance of the notice. In reviewing a request for stay, the commissioner or a designee assigned under 18 AAC 15.235.(a) (1)(A) will consider

(1) the relative harm to the person requesting the stay, the permit applicant, and public health, safety, and the environment, if a stay were granted or denied;

(2) the resources that would be committed during the pendency of proceedings under this chapter if a stay were granted or denied; and

(3) the likelihood that the person requesting the stay will prevail in the proceedings on the merits.

(b) No stay will be granted on a denial of a permit application or request for certification for either a new operation, or an operation that began after the effective date of the statute or regulation requiring a permit.

(c) Within 20 days after the department issues the notice of request for stay under (a) of this section, the department staff, a requestor, the permit applicant, and a potential intervenor may serve a responsive memorandum upon the commissioner and all others appearing in the proceeding.

(d) The commissioner or a designee assigned under 18 AAC 15.235(a) (1)(A) will issue a decision on the request for stay within 15 days after the expiration of the deadline for a responsive memorandum under (c) of this section.

History: Eff. 11/25/77, Register 64; am 7/11/2002, Register 163

Authority: AS 46.03.020

AS 46.35.090 (e)

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