CHAPTER 246
HB 256-FN – FINAL VERSION
4Jan2012… 2811h
04/25/12 1746s
6June2012… 2461CofC
2012 SESSION
06/09
HOUSE BILL 256-FN
AN ACT relative to the administrative appeals process of the department of environmental services and establishing a committee to study the appeal process of the department of environmental services.
COMMITTEE: Resources, Recreation and Development
This bill modifies the administrative appeals process of the department of environmental services.
This bill establishes a committee to examine the appeal process of the department of environmental services.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
4Jan2012… 2811h
04/25/12 1746s
6June2012… 2461CofC
11-0713
06/09
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Twelve
AN ACT relative to the administrative appeals process of the department of environmental services and establishing a committee to study the appeal process of the department of environmental services.
Be it Enacted by the Senate and House of Representatives in General Court convened:
246:1 Attorney General; Hearing Officer. Amend RSA 21-M:3, IX to read as follows:
IX. When designated as the hearing officer for a particular appeal, the hearing officer shall:
(a) Regulate all procedural aspects of a proceeding, including presiding over the hearing and any prehearing conferences;
(b) Subject to RSA 21-O:14, at the first prehearing conference order the parties and any persons who have been allowed to intervene to participate in mediation if the hearing officer concludes that it is reasonably possible that mediation will result in the resolution of the issues in dispute in the proceeding. No order to mediate shall stay the appeal proceeding;
[(b)] (c) Adopt all findings of fact made by the council except to the extent any such finding is without evidentiary support in the record;
[(c)] (d) Deliberate with the council before reaching conclusions on mixed questions of law and fact;
[(d)] (e) Decide all questions of law presented during the pendency of the appeal; and
[(e)] (f) Prepare and issue written decisions on all motions and on the merits of the appeal within 90 days of the conclusion of the hearing on the merits. The hearing officer shall provide the council with a proposed written decision on the merits within 45 days of the conclusion of the hearing on the merits. If requested to do so by the members of the council participating in the discussion, the hearing officer shall meet with those members within the 90 day period to discuss the decision.
246:2 Administrative Appeals; Water Council. Amend RSA 21-O:7, IV to read as follows:
IV. The water council shall hear all administrative appeals from department decisions relative to the functions and responsibilities [within the expertise] of the division of water other than department decisions made under RSA 482-A relative to wetlands and RSA 483-B relative to shoreland protection, and shall decide all disputed issues of fact in such appeals, in accordance with RSA 21-O:14.
246:3 Administrative Appeals; Department Decision. RSA 21-O:14, I is repealed and reenacted to read as follows:
I.(a) For purposes of this chapter, “department permitting decision” means the department’s final action to grant in whole or in part, with or without conditions, or to deny an application or other request for a license as defined in RSA 541-A:1, VIII, whether the action is taken by the commissioner or by the department official who has statutory authority to take such final action or to whom the commissioner has properly delegated the authority to take such final action.
(b) For purposes of this section, “department enforcement decision” means:
(1) The issuance of an administrative order issued under specific statutory authority for such an order, whether described as an order, an administrative order, a cease and desist order, a notice of violation and order of abatement, or other similar name, which specifies the facts and law that support the department’s determination that one or more violations are occurring or have occurred and orders the recipient to cease on-going violations and to take such remediation actions as are necessary to come into compliance with applicable requirements.
(2) The revocation of or the refusal to renew a license as defined in RSA 541-A:1, VIII based on the permit holder’s non-compliance with the statute, rules, or terms and conditions of the license or on other good or just cause as defined in rules adopted relative to the license.
(c) “Department decision” means a department permitting decision, a department enforcement decision, and any other decision made by the department that is expressly appealable to a council under the statute granting authority to the department to make the decision. The term does not include rulemaking or an agency declaratory ruling as provided for in RSA 541-A.
246:4 Administrative Appeals. Amend RSA 21-O:14, I-a to read as follows:
I-a. Any person aggrieved by a department decision may, in addition to any other remedy provided by law, appeal to the council having jurisdiction over the subject matter of the appeal within 30 days of the date of the decision and shall set forth fully in a notice of appeal every ground upon which it is claimed that the decision complained of is unlawful or unreasonable. Only those grounds set forth in the notice of appeal shall be considered by the council. On any such appeal, the council shall determine whether the department decision was unlawful or unreasonable by reviewing the administrative record together with any evidence and testimony the parties to the appeal may present.
246:5 New Paragraphs; Administrative Appeals; Early Dispute Resolution Option; Mediation Procedure. Amend RSA 21-O:14 by inserting after paragraph I-a the following new paragraphs:
I-b. As an alternative to filing an appeal under paragraph I-a and in addition to any other remedy provided by law, any person aggrieved by a department permitting decision may, within 30 days of the date of the decision, file with the council having jurisdiction over the subject matter of the appeal a preliminary notice of appeal and an offer to enter into settlement discussions. Filings made under this paragraph shall be made on forms maintained by the department and shall be governed by the following:
(a) Notwithstanding any other provision of law prescribing the contents of a notice of appeal, a preliminary notice of appeal shall contain only information identifying the appellant, the decision being appealed, and a list of every ground on which the appellant claims that the decision is unlawful or unreasonable.
(b) The preliminary notice of appeal and offer to enter into settlement discussions shall be served on the commissioner and, if not filed by the applicant, on the applicant on the same day as they are filed with the council.
(c) The offer to enter into settlement discussions shall propose mediated settlement discussions, unmediated settlement discussions, or both.
(d) The department and, if applicable, the applicant shall notify the appellant in writing within 7 days whether they accept the offer to enter into settlement discussions. Any such notification accepting the offer shall propose dates within the ensuing 30 days on which to hold the settlement discussions, and if the appellant’s offer proposed both mediated and unmediated settlement discussions the notification shall elect one or the other.
(e) A notice of appeal that complies fully with the council’s rules shall be filed no later than 45 days after the preliminary notice of appeal was filed by the appellant under this paragraph. No notice of appeal shall raise grounds for appeal beyond those contained in the preliminary notice of appeal.
(f) If the department and, if applicable, the applicant accept the offer to enter into settlement discussions the appeal shall be stayed until a notice of appeal is filed under subparagraph (e).
(g) If the parties enter into mediated settlement discussions under this paragraph, the provisions of paragraph I-c (a), (b), and (d) shall apply.
I-c. For all mediations ordered pursuant to RSA 21-M:3, IX(b):
(a) The mediator shall be selected by the participants.
(b) The cost of the mediation shall be borne equally by the participants unless the department elects not to pay its share of the cost of the mediation, in which case the appellant and any person who has been allowed to intervene may either agree to bear the cost of the mediation or be excused from the obligation to mediate.
(c) The pre-hearing order issued by the hearing officer shall specify a time period not to exceed 45 days within which the parties shall mediate. The parties may jointly request a specific amount of additional time if they have not reached a complete agreement within the time period specified by the hearing officer but believe a complete agreement can be reached within the additional time.
(d) If the parties and any intervenors reach agreement as a result of mediation and the agreement includes the issuance of a new or revised permit, only persons who did not participate in the mediation and who are aggrieved by the new or revised permit shall be entitled to appeal the issuance of such permit.
I-d. In any appeal of a department enforcement decision filed pursuant to paragraph I-a, the hearing officer shall not order the department to participate in mediation pursuant to RSA 21-M:3, IX(b). The department may participate in mediation in such cases in its sole discretion.
246:6 Air Pollution Control; Appeals; Time for Filing. RSA 125-C:12, III is repealed and reenacted to read as follows:
III. Any person aggrieved by a decision of the commissioner to grant in whole or in part, with or without conditions, or to deny a permit who wishes to appeal the decision shall proceed in accordance with RSA 21-O:14.
246:7 Fill and Dredge in Wetlands; Powers of Department. Amend RSA 482-A:6, III and IV to read as follows:
III. Whenever it is found that a wetlands is at immediate risk from dredging, filling, or other activity in violation of this chapter, the department may issue an emergency order in writing requiring the immediate cessation of such activity. Any person to whom such an order is directed shall comply immediately, but may [request reconsideration and then] appeal as provided in RSA 482-A:10.
IV. The department may issue an order to any person in violation of this chapter, a rule adopted under this chapter or any condition in a permit issued under this chapter to comply with this chapter, the rule or the permit, and require such remedial measures as may be necessary. Any person to whom such an order is directed may [request reconsideration and then] appeal as provided in RSA 482-A:10.
246:8 Fill and Dredge in Wetlands; Appeals. RSA 482-A:10, IV is repealed and reenacted to read as follows:
IV. An appeal from a decision of the department under RSA 482-A:3 after reconsideration, or an appeal from an order issued by the department under RSA 482-A:6, shall be filed in accordance with the applicable provisions of RSA 21-O:14 and rules adopted by the council pursuant to RSA 541-A regarding the number of copies to be filed, the address to which the notice of appeal must be sent or delivered, and the method of delivery.
246:9 New Paragraph; Fill and Dredge in Wetlands; Notice of Appeal. Amend RSA 482-A:10 by inserting after paragraph IV the following new paragraph:
IV-a. A notice of appeal to the council shall contain a detailed description of the land involved in the department’s decision and shall set forth fully every ground upon which it is claimed that the decision complained of is unlawful or unreasonable. Only those grounds set forth in the notice of appeal shall be considered by the council.
246:10 Availability of Mediation in Pending Appeals. In addition to applying to all appeals filed on or after the effective date of this act, section 1 shall apply to any appeal that has been filed but has not yet had a hearing on the merits before the council as of the effective date of this act.
246:11 Committee Established. There is established a committee to evaluate alternative models for appealing decisions of the department of environmental services, adjudicating cases relating to environmental issues, and evaluating opportunities for application of the recommended systems to appeals of other agencies to achieve greater efficiency, impartiality, cost effectiveness, and enhanced delivery of justice.
246:12 Membership and Compensation.
I. The members of the committee shall be 6 members of the house of representatives, 2 of whom shall serve on the resources, recreation and development committee, and at least 2 of whom shall serve on the house judiciary committee, appointed by the speaker of the house of representatives.
II. Members of the committee shall receive mileage at the legislative rate when attending to the duties of the committee.
246:13 Duties. The committee shall study the effectiveness of delivering justice, efficiency, impartiality, costs, and benefits of alternative processes for appealing decisions of the department of environmental services and adjudicating environmental issues. The committee shall also evaluate opportunities for the application of the recommended systems to appeals of other agencies.
246:14 Chairperson; Quorum. The members of the study committee shall elect a chairperson from among the members. The first meeting of the committee shall be called by the first-named house member. The first meeting of the committee shall be held within 45 days of the effective date of this section. Four members of the committee shall constitute a quorum.
246:15 Report. The committee shall report its findings and any recommendations for proposed legislation to the speaker of the house of representatives, the president of the senate, the house clerk, the senate clerk, the governor, the chief justice of the New Hampshire supreme court, and the state library on or before November 1, 2012.
246:16 Attorney General; Hearing Officer. Amend the introductory paragraph of RSA 21-M:3, VIII to read as follows:
VIII. The attorney general shall appoint [one or more individuals] qualified applicants to serve as a hearing officer for appeals to any of the councils established under RSA 21-O. The attorney general and the commissioner of the department of environmental services may enter into a memorandum of understanding to transfer funds sufficient to fund the hearing officer position and related expenses. Such individual or individuals shall:
246:17 Effective Date. This act shall take effect upon its passage.
Approved: June 18, 2012
Effective Date: June 18, 2012