18 AAC 15.220. Action on hearing requests

(a) The department staff, the permit applicant, and potential intervenors may serve a response to a request for an adjudicatory hearing within 20 days after issuance, under 18 AAC 15.200(d) , of a notice of the request for hearing. A response may include or address any matter that may assist the commissioner or a designee as assigned under 18 AAC 15.235(a) (1)(A) in deciding whether the hearing request should be granted or denied. The requestor may reply within seven days after service of any response to the request for an adjudicatory hearing.

(b) Within 30 days after the time has expired for a requestor to reply to responses to the request, the commissioner or a designee assigned under 18 AAC 15.235(a) (1)(A) will issue a decision on a request for an adjudicatory hearing. The commissioner or designee will

(1) grant a request for a hearing if the commissioner or designee finds that

(A) the request discloses that the requestor would be directly and adversely affected by the department's decision so as to justify an adjudicatory hearing; in determining whether a requestor is directly and adversely affected by the department's decision, the commissioner or designee will consider the nature of the interest asserted by the requestor, whether that interest is one that the applicable statutes and regulations were intended to protect, and the extent to which the department's decision directly and substantively impairs that interest;

(B) the requestor has raised a genuine issue of disputed fact material to the decision; and

(2) remand the permit decision to the department staff, with instructions as appropriate, if the commissioner or designee finds that the staff or the applicant has failed to comply with a statutory or regulatory requirement or that the permit could be amended to accommodate concerns raised in the request without raising a substantive issue that might give rise to a separate hearing request from another person;

(3) deny a request for an adjudicatory hearing and grant a hearing on the existing agency record and on written briefs, if the commissioner finds that the request does not raise a genuine issue of disputed fact material to the decision but does raise a disputed and significant issue of law or policy; or

(4) deny the request for an adjudicatory hearing and issue a final agency decision if, after reviewing the request, response, and reply, the commissioner or designee finds that

(A) that a hearing should not be granted under (1) of this subsection;

(B) a remand should not be granted under (2) of this subsection; and

(c) If the commissioner or designee grants an adjudicatory hearing request or a hearing on the existing record and on written briefs, the department will publish notice of the action in a newspaper of general circulation for the affected area, and will send a copy of the public notice to each person who submitted timely written comments on the contested application, who testified at a public hearing before the department's decision on the application, or who submitted a request for hearing.

(d) If the commissioner or designee grants a hearing on the existing record and on written briefs, the commissioner or designee will establish, after the time for intervention has expired under 18 AAC 15.225, a briefing schedule for submission of an opening brief by each requestor, a responsive brief by each respondent, and a reply brief by each requestor. The commissioner or designee may allow the parties to supplement the agency record with additional information submitted with the briefs.

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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