49-116. Informal appeals of agency decisions; technical appeals program fund; definitions

A. Except as provided in chapter 6 of this title and sections 49-287.05, 49-287.06 and 49-287.07, the informal appeals process established by this section applies to any written interim decision as defined by subsection K of this section.

B. The department shall make a written interim decision within the time frame provided by statute or rule or within ninety business days if no time frame is provided. The time frame may be extended by agreement of the parties. The department's failure to issue a written interim decision within the time frame provided by chapter 2, article 5 of this title is a basis for an informal appeal under this section.

C. A person who makes a request for a written interim decision may informally appeal, under this section, a written interim decision related to technical issues.

D. A person who has an informal appeal right pursuant to subsection C of this section and who disagrees with a written interim decision of the department or who objects to the lack of a written interim decision of the department may file a written notice of disagreement with the department within thirty days after receiving the department's interim decision or within thirty days after the expiration of the period prescribed by subsection B of this section. The notice of disagreement shall include a description of the specific portions of the interim decision with which the person disagrees and may include a request to meet with the department to resolve the disagreement. Unless the parties agree otherwise, the department shall schedule a meeting within thirty days after receipt of a request for a meeting.

E. The person who is authorized under subsection C of this section to request the meeting or an authorized representative of that person may attend the meeting with the department and may attend with any other person who may assist in resolving the disagreement with the department.

F. The department shall issue a final written decision within forty-five days after receipt of the notice of disagreement or within fifteen days after the conclusion of any meeting held pursuant to subsection D of this section, whichever is later. If the department does not issue a final written decision within the time prescribed by this subsection, the department's written interim decision becomes the final written decision. The final written decision shall address the notice of disagreement that was received from the person and shall contain the factual, technical and legal grounds for the department's decision.

G. Within ten days after receipt of the final written decision or the expiration of the time for issuing the final written decision, the person who filed the notice of disagreement may submit a written request to the department that the matter be submitted to dispute resolution before a qualified professional as defined in subsection K of this section. The person who requests dispute resolution before a qualified professional under this subsection shall pay the full cost of the services provided by the qualified professional for the dispute resolution. The payment for the services shall be deposited into the technical appeals program fund established in subsection J of this section. The qualified professional shall be paid from the technical appeals program fund. Payment of the cost of the services provided by the qualified professional shall not be eligible for credit against the person's liability under chapter 2, article 5 of this title. The department shall maintain a list of, and contact with, at least eight qualified professionals to conduct dispute resolutions. The parties shall mutually select a qualified professional. For purposes of this section, the inclusion of the qualified professional on the department's list maintained under this subsection shall not be deemed employment by the department. If the parties cannot agree on a qualified professional who is on the department's list, the parties shall mutually select a qualified professional who is not on the list who otherwise meets the requirements of this subsection.

H. Within twenty days after the selection of a qualified professional, the person who requested the dispute resolution shall submit to the qualified professional and to the department a written statement including, at a minimum, a brief summary that describes the technical dispute, the person's proposed resolution of the technical dispute and any relevant supporting documentation. Within forty-five days after the submittal by the person, the department shall provide to the person and to the qualified professional the department's written response to the submittal. The qualified professional shall review the submittals and recommend a resolution of the technical dispute to the director within thirty days after receipt of the department's response. The qualified professional's recommendation shall be limited to the written interim decision as defined in subsection K of this section and the qualified professional shall not make recommendations relating to an interpretation of law or policy except the qualified professional may interpret policy to the extent necessary to review technical issues. The qualified professional, the department or the person who requested the dispute resolution may request a meeting with all of the parties before the qualified professional issues the recommended resolution. Within forty-five days after receiving the qualified professional's recommendation, the director shall select the resolution of the dispute that is proposed by the qualified professional, the person who requested the dispute resolution, the department or some combination of these resolutions, and shall issue a written resolution to the person and the qualified professional that contains the factual, technical and legal grounds for the decision. By agreement the parties may modify any time limits prescribed by this subsection.

I. For a person who files a written notice of disagreement pursuant to subsection D of this section, the time is tolled for compliance with any investigation, corrective action remediation, closure or other requirement that is associated with the subject of the notice of disagreement until the date of the department's final decision, dispute resolution under this section and any related appeals are concluded. The time for compliance shall not be tolled under this subsection if the person who files a written notice of disagreement is subject to an administrative order or judicial order, judgment or decree for the site that is the subject of the notice of disagreement. The time is tolled for filing any other appeal pursuant to chapter 2, article 5 of this title for any written interim decision defined in subsection K of this section.

J. A technical appeals program fund is established for the purpose of implementing and administering this section and shall consist of any legislative appropriations and any fees collected under subsection G of this section. The department shall administer the fund. Monies in the fund are exempt from the provisions of section 35-190, relating to lapsing of appropriations.

K. For purposes of this section:

1. " Qualified professional" means an individual with a bachelors degree in geology, hydrogeology, hydrology or engineering and at least five years of professional experience in environmental investigation and remediation. Professional registration is highly preferred. The qualified professional shall not be an employee of the party to a dispute resolution or the department within one year prior to the date of the notice of disagreement at issue and shall not have been an employee during the preceding year of a firm assisting the person authorized to informally appeal under subsection C of this section. The qualified professional shall not participate in an informal appeal if the qualified professional has a pecuniary or proprietary interest, either direct or indirect, in the matter being informally appealed.

2. " Written interim decision" means a technical decision involved in a decision under chapter 2, article 5 of this title relating to the department's:

(a) Decision to grant or deny a request for the rescoring of a registry site or for a determination of no further action under section 49-287.01, subsection F, but only the decision made after the close of the public comment period described in that subsection.

(b) Decision to grant or deny a request to adjust a registry site boundary under section 49-289.01.

(c) Review of a work plan submitted to the department under section 49-285, subsection B, 49-287.01, subsection A or 49-287.03. The informal appeals process is limited to the information before the department when the department conducted its review.