Section 18 AAC 15.210 - Stay of decision(a) The department's decision is effective when issued. The department's decision is not automatically stayed during the pendency of proceedings under this chapter. A requester may, not later than the deadline for service of a request for a hearing under 18 AAC 15.200, serve upon the commissioner a request for stay of the department's decision, or a portion of it, pending completion of proceedings under this chapter. The request must be supported by a written memorandum setting out each reason why the decision should be stayed. A person requesting a stay must serve a copy of the request and supporting memorandum on the division director and on the permit applicant or permittee. A copy of the request for stay also must be provided to the commissioner in an electronic format, unless the department waives this requirement because the requester lacks a readily accessible means or the capability to provide items in an electronic format. The commissioner will issue by mail, facsimile transmission, or electronic mail a notice of the request for stay to the requester, to the division director, to the permit applicant or permittee, and to each person who commented on the application or draft decision, and will post that notice on the Alaska Online Public Notice System established under AS 44.62.175. In the notice of request for stay, the commissioner will inform persons that the request for stay is available for review by contacting the department or by reviewing the department's website. In the notice, the commissioner also will include the statement that a person who wishes to oppose or support the request for stay must do so by serving a response on the commissioner on or before a date established by the commissioner and by serving copies as required under (b) of this section.(b) Not later than the time that the commissioner sets in the notice of request for stay under (a) of this section, the division director, a requester not requesting the stay, the permit applicant or permittee, and a potential intervenor may serve a responsive memorandum upon the commissioner, the stay requester, the permit applicant or permittee, and the division director in the manner required under 18 AAC 15.340. A potential intervenor need not file a request to intervene under 18 AAC 15.225 in order to submit a responsive memorandum to a request for stay. A potential intervenor submitting a responsive memorandum to a request for stay must file a motion to intervene if the person wishes to participate in a proceeding that the commissioner grants under 18 AAC 15.220.(c) The commissioner will issue a decision on a request for stay made under (a) of this section. In reviewing a request for stay, the commissioner will consider (1) whether the person requesting the stay will suffer irreparable harm if a stay is not granted;(2) whether the rights of other persons and the public interest can be adequately protected if the stay is granted;(3) the relative harm to the person requesting the stay, the permit applicant or pennittee, public health, safety, the environment, and the public interest, if a stay were granted or denied;(4) the resources that would be committed during the pendency of proceedings under this chapter if a stay were granted or denied; and(5) the likelihood that the person requesting the stay will prevail in the proceedings on the merits.(d) When considering the likelihood of a person prevailing on the merits for purposes of (c)(5) of this section, the commissioner will consider the nature of the threatened injury. If the requesting person faces irreparable harm and the rights of other persons can be adequately protected, the person requesting the stay must raise serious and substantial questions on the merits of the department's decision in order for the commissioner to grant a stay. If the harm to the person requesting the stay is less than irreparable or if the rights of other persons cannot be adequately protected if the commissioner grants a stay, the person requesting the stay must meet the heightened standard of a clear showing of probable success on the merits in order for the commissioner to grant a stay. The commissioner will not impose or continue a stay of the department's decision if the commissioner finds that to impose or continue the stay would be contrary to the public interest. The commissioner will not grant a stay on a denial of a permit application or request for certification for either a new operation or an operation that began after the effective date of the statute or regulation requiring a permit.Eff. 11/25/77, Register 64; am 7/11/2002, Register 163; am 11/5/2017,Register 224, January 2018As of Register 204 (January 2013), and under AS 44.62.125(b)(6), the regulations attorney made technical corrections to 18 AAC 15.210.
Authority:AS 46.03.020
AS 46.03.100
AS 46.03.110
AS 46.03.320
AS 46.03.330
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AS 46.03.880
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AS 46.04.890
AS 46.14.120
AS 46.14.150