Title 18 . Environmental Conservation

Chapter 95 . Administrative Enforcement

Section 20. Respondent's report and objection

18 AAC 95.020. Respondent's report and objection

(a) Unless otherwise specified, the respondent shall serve upon the regional office designated in the notice of intent the report requested under sec. 10(b)(4) of this chapter within 15 days of service of the notice of intent. The deadline for service of the report may be shortened by the deputy commissioner if necessary to protect the public health or environment. If a service period of less than 15 days is provided, the notice of intent will state the reasons for that.

(b) Respondent's report must be of sufficient detail to permit an informed judgment by the deputy commissioner as to the adequacy of the actual or proposed remedial or preventive measures. The report must be specific with regard to the precise equipment, facilities, materials or operations to be used, as well as deadlines and timetables. Maps, diagrams and the like should be used to promote clarity, and any germane surveys, reports or sampling or test results should be attached to the report.

(c) If the respondent believes that

(1) the violations specified in the notice of intent have not or do not threaten to occur;

(2) he is not responsible for the violations specified;

(3) no corrective or preventive action of any sort is necessary; or

(4) the notice of intent is so indefinite or uncertain that he cannot identify the transaction, prepare his defense or prepare the report under (b) of this section

he may serve an objection upon the deputy commissioner within 10 days of service of the notice of intent, or within a shorter time period specified in the notice of intent in cases where a time period of less than 15 days is provided for service of the report. Upon service of a timely objection, the time period for service of the report will be held in abeyance pending action by the deputy commissioner under (e) or (g) of this section. If a defense specified in (1) - (3) of this subsection is raised, the objection must concisely state the basis for that defense.

(d) The failure to raise the defense specified in (c)(4) of this section in a timely served objection constitutes a waiver of that defense. All other defenses are preserved, and may be raised in a notice of defense following issuance of the compliance order under sec. 30 of this chapter.

(e) Upon service of a timely objection raising a defense specified in (c)(1) - (3) of this section, and after a review of the record, the deputy commissioner may

(1) if the record warrants, terminate the compliance order proceedings against the respondent;

(2) if he determines that a defense raises a serious and substantial issue, and that the public health or environment will not be unduly harmed or threatened by the delay inherent in a bifurcated hearing, treat the objection as a notice of defense and set the matter for hearing in conformity with secs. 50 - 130 of this chapter; or

(3) if he determines that the defenses do not raise a serious and substantial issue, or that the public health or environment would be unduly harmed or threatened by the delay inherent in a bifurcated hearing, notify the respondent of his determination, and provide the respondent with the unexpired portion of the service period for the report, or five days, whichever is greater, in which to serve his report; notification may be made orally.

(f) A determination by the deputy commissioner under (e)(3) of this section does not constitute final agency action. Findings of fact and, when appropriate, conclusions of law supporting the determination will be made in the compliance order issued under sec. 30 of this chapter, and the deputy commissioner's findings and conclusions may be contested in a hearing held after the issuance of the compliance order.

(g) If a timely served objection raises the defense specified in (c)(4) of this section, and the deputy commissioner determines that there is good cause for the objection, he shall serve a supplemental notice of intent within seven days of service of the objection. If the deputy commissioner determines that there is not good cause for the objection, he shall so notify the respondent within three days of service of the objection. Notification may be made orally. Upon notification, respondent will be afforded the unexpired portion of the service period for the report, or five days, whichever is greater, in which to serve his report.

(h) Upon service of a motion on the deputy commissioner within seven days of service of the notice of intent (or within three days of notification of a determination under (e)(3) or (g) of this section) the deputy commissioner shall grant an extension for service of the report upon finding that

(1) good cause exists for the extension; and

(2) the public health or environment will not be unduly harmed or threatened by the extension.

(i) The time period specified in the notice of intent (or in a determination made under (e)(3) or (g) of this section) for service of the report will be held in abeyance from the date of service of a motion under this subsection until service of the decision by the deputy commissioner. If an extension request is denied, the respondent will be afforded the unexpired portion of the service period for the report, or five days, whichever is greater, in which to file the report.

(j) Neither the report, nor any evidence directly obtained as a result of exploitation of the report, will be used against a person providing the report in any criminal proceeding concerning the violation or violations to which the notice of intent is addressed.

(k) The report must contain the name and mailing address of the respondent, and, if respondent is represented by counsel, the name, mailing address and telephone number of the respondent's attorney.

History: Eff. 7/24/77, Register 63

Authority: AS 46.03.020 (10)

AS 46.03.850