Current through Reg. 49, No. 52; December 27, 2024
(a) Site
Classification Under Review. Regardless of any other section of Chapter 60 of
this title (relating to Compliance History), the executive director may
designate a site's current compliance history classification as "under review"
if the executive director determines that exigent circumstances exist due to an
event at the site. The executive director shall make any such designation no
later than 90 days after exigent circumstances begin. The designation as "under
review" is effective immediately and written notice will be issued to the
site's owner and operator, as readily identifiable through agency records.
Unless a Notice of Decision to Reclassify is issued under subsection (b) of
this section, the designation shall expire on the 91st day after the date of
the written notice of designation. For the purpose of this section, exigent
circumstances must include:
(1) Significant
community disruption;
(2) Emergency
response by a federal or state governmental authority to address an actual,
unauthorized release of pollutants, contaminants, or other materials regulated
by the agency; and
(3) The event
must have resulted in one or more of the following:
(A) the issuance of an emergency order by a
federal or state governmental authority;
(B) the issuance of a temporary restraining
order or temporary injunction at the request of the state, related to
compliance with "applicable legal requirements" under the jurisdiction of the
commission, as defined by §
60.1(c)(1)
of this title (relating to Compliance History);
(C) the use of significant federal or state
resources, such as the activation of an incident command system; or
(D) an actual, unauthorized release of
pollutants, contaminants, or other materials regulated by the agency, which
causes:
(i) the evacuation of off-site persons
from homes, places of employment, or other locations;
(ii) the sheltering in place by off-site
persons in homes, places of employment, or other locations;
(iii) the creation of a traffic hazard or
interference with normal use of a navigable waterway, railway, or road;
or
(iv) injury or death of a person
directly attributable to the release.
(b) Notice of Decision to
Reclassify. The executive director may then decide to reclassify a site's
compliance history to "suspended." The executive director will consider any
available information concerning whether the event in question was caused
through any fault of the site's owner or operator. The executive director may
make such a decision no sooner than 30 days and no later than 90 days after a
site's classification is designated as "under review," and the executive
director shall send written notice to the site's owner and operator, as readily
identifiable through agency records, of the decision to reclassify the site's
compliance history to suspended. The noticed reclassification shall not become
final until the effective date under subsection (f) of this section.
(c) Evaluation of Permit Applications. To the
extent any permit applications are pending for authorizations at the site, upon
the executive director's written Notice of Decision to Reclassify a site's
compliance history to "suspended" and until the agency has evaluated the
pending permit application in light of the event, unless legally obligated
otherwise or the decision is withdrawn or set aside, the agency shall not take
action to issue, renew, amend, or modify a permit specific to the site. Based
on the evaluation, the agency may:
(2) approve the permit
with changes, which may include additional protective measures to address
conditions that caused or resulted from the event; or
(d) Demonstration that Reclassification Not
Warranted. At any time prior to filing a motion for commission review of the
executive director's Notice of Decision to Reclassify, the site's owner or
operator may demonstrate to the executive director that reclassification is not
warranted. If the executive director determines that reclassification is not
warranted, the executive director shall withdraw the decision to reclassify the
site's compliance history to suspended by providing written notice to the
site's owner and operator, as readily identifiable through agency
records.
(e) Motion for Commission
Review of the Executive Director's Decision. The executive director's decision
to reclassify a site's compliance history to suspended under this section may
be appealed to the commission only by persons who own or operate the site, and
pursuant to the following procedures:
(1) A
motion for commission review of the executive director's decision shall be
filed with the Chief Clerk not later than 90 days after the date the executive
director sends the written Notice of Decision to Reclassify under subsection
(b) of this section.
(2) The
commission or the general counsel may, by written order, extend the period of
time for taking action on the motion so long as the period for taking action is
not extended beyond 180 days after the date the executive director sends the
written Notice of Decision to Reclassify under subsection (b) of this
section.
(3) The motion shall
provide the name, address, and daytime telephone number of the person filing
the motion, and a brief explanation of the person's owner or operator status as
it relates to the site being reclassified.
(4) The motion shall state the grounds for
the appeal and the specific relief sought. The appeal must also include all
documentation and argument in support of the motion.
(5) At the request of the general counsel or
a commissioner, the motion for review of the executive director's decision to
reclassify will be scheduled for consideration during a commission meeting. At
the commission meeting, the commission may act on the motion by affirming or
setting aside the executive director's decision to reclassify in whole or in
part. A Commission Order for its action under this paragraph shall not contain
conclusions of law.
(6) If the
commission does not act on the motion under paragraph (5) of this subsection,
then the motion will be addressed as follows:
(A) Unless an extension of time is granted,
if a motion for review of the executive director's decision to reclassify is
not acted on by the commission within 115 days after the date the executive
director sends the written Notice of Decision to Reclassify under subsection
(b) of this section, the motion is overruled by operation of law; or
(B) In the event of an extension, the motion
is overruled by operation of law on the date fixed by the order granting the
extension, or in the absence of a fixed date, on the 181st day after the date
the executive director sends the written Notice of Decision to Reclassify under
subsection (b) of this section.
(7) During the pendency of any judicial
review of the reclassification to suspended, the reclassification shall remain
for the purpose of this rule.
(f) Effective Date of Reclassification.
(1) If no timely motion for commission review
is filed pursuant to subsection (e) of this section, the site's compliance
history shall be reclassified to suspended on the 91st day after the date the
executive director sends the written Notice of Decision to Reclassify under
subsection (b) of this section; or
(2) If a timely motion for commission review
is filed pursuant to subsection (e) of this section, the site's compliance
history shall be reclassified to suspended on the date a commission order
affirming the executive director's decision to reclassify is signed or, in the
absence of such an order, on the date the motion is overruled by operation of
law.
(g) Effects of
Reclassification. While a site's compliance history is reclassified to
suspended under this section:
(1) The agency
shall continue to evaluate applications for permits specific to the site under
subsection (c) of this section; and
(2) The site shall be treated as an
unsatisfactory performer for the purposes of §
60.3 of
this title (relating to Use of Compliance History), except that the owner or
operator of a reclassified site may demonstrate to the executive director that
authorizations under §60.3(a)(3)(A)(i) and (ii) would still be appropriate.
Upon such a demonstration, the executive director may decide to allow for such
authorizations regardless of the prohibitions in §60.3(a)(3)(A)(i) and
(ii).
(h) Duration of
Reclassification. A site's compliance history reclassification under this rule
to suspended shall remain for at least one year after the effective date of
reclassification, and then until the earliest of:
(1) the executive director provides written
notice of the determination that the reclassification is no longer warranted,
after the executive director decides that:
(A) the exigent circumstances have been
resolved; and
(B) the cause of the
event has been identified and corrective actions have been implemented that
appropriately reduce or eliminate the likelihood that the same or a similar
event will reoccur;
(2)
an enforcement action arising from the event has been resolved and resulted in
a component that is accounted for in the site's compliance history, or such
enforcement case is neither pending nor anticipated by the executive director;
or
(3) three years after the
effective date of reclassification.
