Sec. 26.08.04.01-3. Discharge Permit Issuance and Contested Case Hearings

A. Final Determination.

(1) If the Department is not required to prepare a final determination, the tentative determination shall be a final decision by the Department and a permit may be issued.

(2) The Department shall prepare a final determination if:

(a) Written comments adverse to the tentative determination are received by the Department within 30 days after publication of the notice of tentative determination;

(b) Comments adverse to the tentative determination were received in writing at, or within 5 days after, a public hearing held according to Regulation .01-2B(5) of this chapter;

(c) Comments adverse to the tentative determination were received orally at the public hearing conducted under this section and the Department prepared a transcript of the comments made at the hearing; or

(d) The final determination is substantively different from the tentative determination and all persons who may be aggrieved by the final determination have not waived, in writing, their right to request a contested case hearing.

(3) Those persons, including applicants, who believe any condition of a draft permit is inappropriate or that the Department's tentative determination is inappropriate, shall raise all reasonably ascertainable issues and submit all reasonably available arguments and documents supporting their position by the close of the public comment period, including any public hearing, as established by this chapter.

(4) Supporting materials which are submitted shall be included in full and may not be incorporated by reference, unless they are already part of the administrative record in the same proceeding, or consist of State or federal statutes and regulations, EPA documents of general applicability, or other generally available reference materials.

(5) Those offering comments shall make supporting materials not already included in the administrative record available by submitting a complete copy of all supporting materials at the time they submit their comments, or, if this submission is not practical, as determined solely by the Department, comments shall identify the location of the supporting materials.

(6) The final determination shall include:

(a) The name of the applicant;

(b) The type of discharge;

(c) The location of the discharge;

(d) The volume of the discharge;

(e) A statement of the Department's final determination and a brief explanation of the Department's decision;

(f) The permit limitations and conditions; and

(g) A schedule of compliance, if applicable.

(7) The final determination shall be available to the public for inspection and copying according to Regulation .01-1E of this chapter.

B. Notice of Final Determination.

(1) When the Department is required to prepare a final determination under §A of this regulation, a notice of final determination shall be published according to Regulation .01-1E of this chapter.

(2) The notice of final determination shall be published in the same newspapers as the notice of hearing.

(3) The notice of final determination shall include:

(a) The information contained in the final determination required by §A(3)(a)-----(e) of this regulation, and any limitations, change in permit conditions, or schedule of compliance;

(b) A statement that the notice of final determination is available for inspection and copying;

(c) The procedure for inspection and copying of the final determination;

(d) A statement that a person may request a contested case hearing to appeal a final determination if the person makes factual allegations with sufficient particularity to demonstrate that the person is aggrieved by the final determination and the final determination is:

(i) Legally inconsistent with any provisions of law applicable to the final determination being challenged, or

(ii) Based upon an incorrect determination of a relevant and material fact;

(e) A statement that a person requesting a contested case hearing shall submit a written request for adjudication within 15 days after publication of the notice of final determination;

(f) The procedure for requesting a contested case hearing; and

(g) Other information the Department determines to be necessary for adequate public notification.

C. Request for Contested Case Hearing.

(1) A person may not request a contested case hearing based on, or in a contested case hearing may not challenge, a facility's compliance with zoning and land use requirements or conformity with a county plan issued under Environment Article, Title 9, Subtitle 5, Annotated Code of Maryland. This regulation does not prevent a party from contesting the compliance of the facility with zoning and land use or county plan requirements in any proceeding brought in accordance with or under any applicable local laws.

(2) A person requesting a contested case hearing to appeal a final determination shall:

(a) Submit a written request in the manner specified in the notice of final determination within 15 days after publication of the notice of final determination; and

(b) Provide documentation that the requirements of §A of this regulation were met.

(3) A request for a contested case hearing shall include:

(a) The name, address, and telephone number of the person filing the request;

(b) The particular factual allegations which demonstrate that the:

(i) Person is aggrieved by the final determination, and

(ii) Final determination is legally inconsistent with any provisions of law applicable to the final determination being challenged or is based on an incorrect determination of a relevant and material fact.

(4) The request for a contested case hearing shall be processed and the hearing conducted in accordance with the provisions of State Government Article, Title 10, Subtitle 2, and Environment Article, Title 1, Subtitle 6, Annotated Code of Maryland.