§ 8-4-230 - Temporary variances and interim authority.
8-4-230. Temporary variances and interim authority.
(a) (1) Unless otherwise prohibited by preemptive federal law, the Director of the Arkansas Department of Environmental Quality may, for compelling reasons and good cause shown, grant:
(A) Temporary variances from the requirements of any permit issued by the Arkansas Department of Environmental Quality; or
(B) Interim authority to construct or operate during the application review and permit issuance process.
(2) Such temporary variances or interim authority shall not exceed a period of ninety (90) days, except when a longer period is justified by circumstances beyond the applicant's control. The department may grant a request for an extension of a temporary variance or interim authority at any time prior to the expiration date.
(3) The department may require an initial processing fee of two hundred dollars ($200) for a request for a temporary variance or an interim authority request. This fee shall not be required for requests for an extension of any temporary variance or interim authority.
(b) (1) In considering any request for a temporary variance pursuant to subdivision (a)(1)(A) of this section, the director shall consider:
(A) The environmental and public health effects of the temporary variance; and
(B) Any economic advantage obtained by the party requesting the temporary variance over other similarly situated facilities that are operating in accordance with similar permit conditions and which have not requested a temporary variance.
(2) In addition, the director may take into account the following factors:
(A) Whether strict compliance with permit terms is inappropriate because of conditions beyond the control of the person requesting the temporary variance;
(B) Whether strict compliance would result in the substantial curtailment or closing down of a business, plant, or operation;
(C) Whether the temporary variance request is prompted by recurrent or avoidable compliance problems;
(D) A review of the operational history of the requesting facility; and
(E) Whether the public interest will be served by a temporary variance.
(c) When considering any request for interim authority during the application review and permit issuance process pursuant to subdivision (a)(1)(B) of this section, the director may take into account the following factors in addition to the applicable factors of subsection (b) of this section:
(1) Whether the applicable permitting applications were timely and completely submitted;
(2) Whether there has been a delay in the final permitting action caused by conditions beyond the control of the person requesting the interim authority;
(3) Whether contractual or other business obligations will become due before a proper permit can be issued; and
(4) Whether the public interest will be served by construction or operation during the application review and permit issuance process.
(d) After a review of the applicable factors, the director may:
(1) Grant an unconditional variance or interim authority to the requesting party;
(2) Grant a conditional temporary variance or interim authority to the requesting party. Such conditions shall be designed to be protective of human health and the environment and must be clearly stated or referenced in the temporary variance or interim authority document; or
(3) Deny the request for a temporary variance or interim authority. If a denial is issued, the director shall clearly state the reason or reasons for the denial in a written response to the applicant.
(e) (1) Every director's decision to grant or deny a temporary variance or interim authority to construct or operate shall be publicly noticed within ten (10) business days of the director's decision. The applicant shall be responsible for the expense of publication of any decision to grant a temporary variance or interim authority. The department shall be responsible for the expense of publication of any decision to deny a temporary variance or interim authority.
(2) Any member of the public may object to the director's decision within ten (10) business days of the notice.
(3) Any temporary variance or interim authority granted by the director is contingent upon the right of the public to object.
(4) Any actions taken by the applicant in reliance upon the grant of a temporary variance or interim authority during the application review and permit issuance process are strictly at the applicant's own risk, and no actions or expenditures by the applicant during this period shall be construed as accruing equities in the applicant's favor.
(5) The ten-day public notice requirement shall not apply to a director's decision to grant an extension of a temporary variance or interim authority.
(f) The director may also for compelling reasons or good cause shown revoke or modify the conditions of any temporary variance or interim authority previously granted.
(g) (1) An applicant that has been denied a temporary variance or interim authority or that had a temporary variance or interim authority revoked or a third party that submitted timely objections during the application review and permit issuance process provided for in subsection (e) of this section may appeal the director's final decision.
(2) (A) Such an action shall be processed as a permit appeal under 8-4-205.
(B) Provided, however, that:
(i) The decision of the director shall remain in effect during the appeal;
(ii) The adjudicatory review shall be completed as expeditiously as possible; and
(iii) A final decision shall be issued by the Arkansas Pollution Control and Ecology Commission within sixty (60) days unless all parties agree to extend the review time.
(h) Any party aggrieved by a commission decision on a request for a temporary variance or interim authority may appeal as provided by applicable law.